Mrs. Vernon HARDEN
v.
FIRST UNION NATIONAL BANK OF NORTH CAROLINA et al.
No. 756DC580.
Court of Appeals of North Carolina.
December 17, 1975.*137 Law Firm of Carter W. Jones by Ralph G. Willey, III, Ahoskie, for plaintiff-appellee.
Pritchett, Cooke & Burch by J. A. Pritchett and William W. Pritchett, Jr., Windsor, for defendant-appellant.
MORRIS, Judge.
Defendants contend that the terms of the antenuptial contract and the terms of Vernon Harden's will require a holding that plaintiff is not entitled to any portion of the funds in the joint bank account. Plaintiff agrees that the antenuptial contract is valid and enforceable, and she has accepted the payment of $10,000 under its terms and the terms of Vernon Harden's will. She insists that she is also entitled to the funds on deposit in the joint bank account.
*138 The antenuptial agreement clearly contemplated that each party desired to continue to own, in the same manner, after their marriage any property owned by him or her individually before the marriage. It was further specifically provided that, with respect to any property coming to either of them after the marriage, each would own such property as though there had been no marriage between them. It was agreed that if plaintiff survived her husband, she would be paid $10,000 by her husband's executrix, and she released all other "property of the intended husband at his death" from any claims, demands, or rights she might have.
Antenuptial contracts are not against public policy and should be enforced as written. Turner v. Turner, 242 N.C. 533, 89 S.E.2d 245 (1955). The contract here as written clearly intended to protect to each his or her separate property and to preclude plaintiff from taking any property owned by Vernon Harden at his death other than the $10,000 for which the agreement specifically provided. The question we must decide is: What effect, if any, does the antenuptial contract have upon the joint bank account?
G.S. 41-2.1 provides for the establishment of joint bank accounts with the right of survivorship if the account is established in accordance with the provisions of the statute. There is no question but that the requirements of the statute have been met. The parties entered into a written agreement which both parties executed. They agreed that all funds deposited in the account should be their joint property, owned by them as joint tenants with right of survivorship and not as tenants in common; that upon the death of either, the funds should become the absolute property of the survivor, that all or any part of the funds could be withdrawn by either or the survivor; that all withdrawals by the survivor should be binding upon them, their heirs, next of kin, legatees, assigns and personal representatives. Although the court found as a fact that deposits were made by both, there is no evidence in the record to show the source of any deposit, including the original deposit. While the finding is not supported by evidence and is error, it is immaterial to decision and, therefore, harmless.
In Wilson County v. Wooten, 251 N.C. 667, 669-670, 111 S.E.2d 875, 877 (1960), Justice Denny said:
"The survivorship in joint tenancies by operation of law has been abolished in this jurisdiction. G.S. § 41-2. However, such a tenancy may be created by contract. (Citations omitted.)
Under common law principles applicable to joint tenancies the survivor takes the entire property, free and clear of the claims of heirs or creditors of the deceased tenant, and the personal representative of such tenant has no right, title or interest therein." (Citations omitted.)
Here, if either party wished to own the funds represented by the joint account, it would have been a simple matter to establish a bank account in the name of the one owning the funds. This was not done. Instead the two parties entered into a contract under which both owned all or any part of the funds during their lives, and the survivor owned that which was remaining. This was clearly not protected by the antenuptial contract but was the subject of a separate contract between the parties entered into sometime after the antenuptial contract.
"It is well settled law that the parties to a contract, no rights of third parties having intervened, may rescind it, or substitute another contract for it, by making a new contract inconsistent therewith. Redding v. Vogt, 140 N.C. 562, 53 S.E. 337, 6 Ann.Cas. 312. The making of a second contract dealing with the same subject matter does not, however, necessarily abrogate the former contract. Commercial National Bank of Charlotte v. Charlotte Supply Co., 226 N.C. 416, 38 S.E.2d 503.
*139 A new contract between the same parties which contains nothing inconsistent with the older one does not discharge the latter. Drown v. Forrest, 63 Vt. 557, 22 A. 612, 14 L.R.A. 80; 12 Am.Jur., Contracts, Sec. 433; 17 C.J.S., Contracts, p. 885." Turner v. Turner, supra, 242 N.C. at 538, 89 S.E.2d at 249.
In our view, the second contract is a separate, distinct, and valid contract not dealing with the separate property of either party. Nor does the will of Vernon Harden vitiate the contract. It directs his executrix "to pay my wife the sum of Ten Thousand Dollars ($10,000), which is the amount she and I agreed upon in an agreement duly executed before our marriage and in contemplation of marriage, which shall be in full of her share in my estate." The funds in the joint bank account were neither "property of the intended husband at his death" under the antenuptial contract nor funds belonging to his "estate" under the will. They were funds made the subject of a separate contract which made the funds the property of both with right of survivorship and which specifically made withdrawal of funds by the survivor binding upon the heirs, legatees, and personal representatives of the deceased. This contract was an agreement in addition to the antenuptial contract and served to take those funds out of that part of the estate of either of the parties to the contract which could be the subject to a devise or legacy.
The court found that the estate of Vernon Harden was "very solvent and can absorb all debt without resort to the funds of the joint bank account". The parties stipulated that the executrix would pay any liability imposed by the court. The court concluded that plaintiff is entitled to the full amount remaining on deposit at Vernon Harden's death, plus interest thereon at the rate of 6% from February 1972. In this we find no error.
Affirmed.
PARKER and MARTIN, JJ., concur.