Kyle v. Groce

272 S.E.2d 609 (1980)

Rose Z. Weaver KYLE v. John H. GROCE & William A. Groce, Jr., Co-Administrators of the Estate of Jay Groce, Deceased; and Wilkes Savings & Loan Association.

No. 8023DC513.

Court of Appeals of North Carolina.

December 16, 1980.

Max F. Ferree by George G. Cunningham, Wilkesboro, for plaintiff-appellant.

Moore & Willardson by Larry S. Moore and Robert P. Laney, North Wilkesboro, for defendants-appellees.

WEBB, Judge.

Plaintiff does not contend that this case is governed by G.S. 41-2.1 which deals with the right of survivorship in deposits created by written agreement. She does contend that there is a triable issue as to whether Jay Groce created a Totten or tentative trust for her. If Jay Groce created a trust for plaintiff with a right of survivorship, it would be by the phrase "Payable to Rose Z. Weaver, as survivor only" which appeared on the application card. We hold that this language does not meet the requirements in this state for the establishment of a trust with right of survivorship.

*610 In Wescott v. Bank, 227 N.C. 39, 40 S.E.2d 461 (1946), the deceased deposited money in a bank account with written instructions to the bank as follows: "I would like to make this an `in trust for' account so I am the only person who can withdraw from it. In case I become deceased I would like to make an agreement with you so as to make my beneficiary my grandfather ... eligible to receive the money ...." Our Supreme Court held that, since there was not evidence of a transfer or assignment of a present beneficial interest in the deposit, no trust was created. The fact that the depositor directed that his grandfather was to have the money at the death of the depositor was not enough to create a trust for the grandfather with a right of survivorship. We hold that Wescott controls the case sub judice. In this case there was no evidence of a transfer or assignment of a present beneficial interest but only the expression of a desire that the plaintiff own the account at the death of the depositor. This did not create a trust for plaintiff with a right of survivorship. See also Ridge v. Bright, 244 N.C. 345, 93 S.E.2d 607 (1956) and Baxter v. Jones, 14 N.C.App. 296, 188 S.E.2d 622, cert. denied, 281 N.C. 621, 190 S.E.2d 465 (1972).

The language used on the application at its best is an attempt by Jay Groce to pass the savings account to the plaintiff at his death. It does not comply with the requirements of a will. Chapter 31, Art. I of the North Carolina General Statutes.

Affirmed.

HARRY C. MARTIN and HILL, JJ., concur.