dissenting.
I respectfully dissent. The court’s holding construing section 439(a) of the Probate Code to require more than “payable to the survivor” or similar language for the funds to be presumptively vested in the survivor is contrary to legislative intent, produces a result inconsistent with the prior actions of this court, and elevates “magic words” over the common sense approach previously used to protect depositors’ intentions from legalisms. I would reverse the judgments of the trial court and court of appeals and render judgment for Mary K. Stauffer.
Legislative Intent for “Makes To Survive”
The majority opinion makes no reference to the legislative history of the 1979 amendments, as though the legislature gave no guidance on what the words of the statute mean. That is not the case. The legislative history states the 1979 amendments were to be a “codification of current law” to be enacted “without changing current Texas Law ... both case law and statute.” 1 The majority does not address this legislative history because it cannot reconcile this express legislative intent with the majority’s conclusion that the statute “overruled” Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962). Before addressing the legislative intent in detail, however, it is helpful to clarify what is not in issue in this case, because the majority opinion has muddled its analysis with irrelevant matters to avoid reaching the real issue.
First, the construction or application of section 46 of the Probate Code is not at issue. Section 46 and its statutory predecessors have been in effect in substantially the same form since 1848. Its construction is well established by longstanding and unquestioned precedent. At common law, property could be held jointly only if it passed to the survivor upon death. The strong language of section 46 was meant to overrule that common law requirement, to permit joint ownership without survivor-ship, not to impede or prevent the creation of joint tenancies with rights of survivor-ship. Although the statute provides that when property is held in joint tenancy, “and one joint tenant dies before severance, his interest in said joint estate shall not survive to the remaining joint tenant or tenants, but shall descend to and be vested in” his heirs,2 the statute did not prevent the joint tenants from providing by agree*867ment that the property would pass to and vest in the survivor. Chandler v. Kountze, 130 S.W.2d 327, 329 (Tex.Civ. App. — Galveston 1939, writ ref’d). This construction of section 46, including expressly the “may be made to survive to the surviving joint owner” language, was well established when this court issued its opinions in Davis v. East Texas Savings and Loan Ass’n, 163 Tex. 361, 354 S.W.2d 926 (1962), and Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962), holding account signature cards with far weaker language than the one at issue here, were effective to make to survive to the surviving joint owner the interest of the decedent. Further, since the legislature expressed its intent of no change from the existing Texas law in enacting section 439(a) and its related new provisions, the new provisions did not alter the established meaning of section 46. Except for the established meaning of the “may make to survive” language from those cases, section 46 simply is not relevant to the present ease. To the extent the similar language is relevant, however, the established construction is contrary to the result reached by the majority.
Second, whether Dulak is valid after the 1979 amendments, is not at issue here. Before the 1979 amendments, this court had recognized that a “convenience account” could be proved by extrinsic evidence contradicting the express terms of the written account card. When the terms of the writing clearly stated a joint account with right of survivorship was created, par-ol evidence was nevertheless admissible to show that the depositor intended that the account be for convenience purposes only, in which case the funds would pass to the decedent’s heirs or devisees. Dulak v. Du-lak, 513 S.W.2d 205, 208 (Tex.1974) (recognizing so-called “convenience accounts” contradicting the written account card).
Whether the 1979 amendments overruled Dulak does not control this case. As adopted effective August 27, 1979 and applicable at all relevant times to this case, sections 439(a) and 441 of the Texas Probate Code provided:
§ 439(a):
Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties against the estate of the decedent if, by a written agreement signed by the party who dies, the interest of such deceased party is made to survive to the surviving party or parties. A survivorship agreement shall not be inferred from the mere fact that the account is a joint account. If there are two or more surviving parties, their respective ownerships during lifetime shall be in proportion to their previous ownership interests under Section 438 of this code augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death, and the right of survivorship continues between the surviving parties if a written agreement signed by a party who dies so provides. (Emphasis supplied.)
§ 441:
Transfers resulting from the application of Section 439 of this code are effective by reason of the account contracts involved and this statute and are not to be considered as testamentary or subject to the testamentary provisions of this code. Tex.Prob.Code Ann. §§ 439(a), 441 (Vernon 1980). .
The legislature further added subsection (d), which provides in effect that joint accounts not meeting the written agreement standard and not falling within one of the other statutory exceptions3 are ineffective as non-probate transfers. Subsection (d) states:
In other cases, the death of any party to a multiple-party account has no effect on *868beneficial ownership of the account other than to transfer the rights of the decedent as part of his estate.
Tex.Prob.Code Ann. § 439(d) (Vernon 1980).
It is a well-established principle of Texas law that when a statute is clear and unambiguous, and reasonably admits of only one construction, the courts will take the legislative intent from the words of the statute and apply that intent as written. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983); Ex parte Roloff, 510 S.W.2d 913, 915 (Tex.1974). When the statute’s meaning is plain, this court will not explore its legislative history to contradict its express terms. Railroad Commission v. Miller, 434 S.W.2d 670, 672 (Tex.1968); City of Port Arthur v. Tillman, 398 S.W.2d 750, 752 (Tex.1965). In subsection (a), the legislature provided that sums remaining on deposit are property of the survivor “if by a written agreement * * * [such interest] is made to survive to the surviving party” (emphasis supplied). In subsection (d) the legislature stated that in all other cases the interest passes as a probate asset. There is no ambiguity in this language as to the significance of a written agreement expressly and clearly granting survivorship rights. The statute plainly states that an unambiguous writing has controlling effect. When a written agreement’s express words clearly and unambiguously provide that the sums in an account are to pass to the surviving joint tenant, i.e., that there are survivorship rights, the writing must be enforced. Notwithstanding the intent not to change Texas law, the legislature’s express words have effectively overruled Dulak. There are no more “convenience accounts” when the writing clearly provides for survivor-ship rights. Parol evidence is no longer admissible to contradict the express terms of the writing. This court had already confirmed that result by refusing, “no reversible error,” several courts of appeals decisions4 reaching that conclusion, and presenting the issue for review by this court, while we were still an “error correcting” court.5
That the legislature intentionally or unintentionally has overruled Dulak does not mean that we should ignore legislative intent as shown by the legislative history to determine what language is sufficient under the “make to survive” words of the *869statute for the writing to create, prima facie or presumptively, the right of surviv-orship. The issue is what the statute means by “is made to survive to the surviving party or parties.” A term which is not expressly defined in a statute, such as what it means to make to survive to the surviving party the interest in the account, is not so clear and unambiguous that there is no room for statutory interpretation. In the Code Construction Act, the legislature has directed the courts in “interpreting a statute” to “diligently attempt to ascertain the legislative intent.” Tex.Gov’t Code Ann. § 312.005 (Vernon 1988). To construe such terms, this court may properly look to the legislative history as a key factor to determine legislative intent. Seay v. Hall, 677 S.W.2d 19, 22-23 (Tex.1984).
The legislative intent was to leave Texas law on what “makes to survive” means unchanged, including case decisions under the common law. When the legislature enacted section 439(a) of the Probate Code, it was as part of a completely new chapter of the code. The House Judiciary Committee which drafted the statute issued an Interim Study Report. The Report states that in submitting the bill the Committee recommended that
codification of current law be made along the general structural lines of the Uniform Probate Code, Article 6, without changing current Texas Law and adopting the Uniform Probate Code provisions only where they do not conflict with Texas law — both case law and statute — or where Texas law is silent.
Interim Study Report on Nontestamen-tary Transfers presented to House Judiciary Committee: Recommendation #36, 66th Leg., Reg.Sess. (1979).
Similarly, the bill analysis on Chapter 10 of the Probate Code prepared for the legislature by the House Judiciary Committee recommended that by the proposed bill the Texas law of nontestamentary transfers should be codified in its present state along the structural lines set forth in the Uniform Probate Code, with no change in present Texas law, statutory or case law. There is no recorded debate or other legislative history to contradict these express statements of intent. Further, by using the terms “is made to survive to the surviving party or parties,” which was substantially the same as the terms “made to survive to the surviving joint owner or owners” appearing in section 46, the legislature presumptively adopted the prior court constructions of what is sufficient under that section 46 language. Kennedy v. Hyde, 682 S.W.2d 525, 529 (Tex.1984); see also McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125 (1943).
That language similar to the language at issue here, was sufficient to create the right of survivorship under section 46, was settled at the time the legislature enacted section 439. A financial institution’s signature card signed only by the decedent but stating that an account was a joint account with right of survivorship was valid and effective to create a contract for the benefit of the survivor, i.e., a survivorship account. Davis v. East Texas Savings and Loan Ass’n, 163 Tex. 361, 354 S.W.2d 926 (1962). An account card directing the funds were payable to A or B “or payable to the survivor of either” as a contractual “recitation falls short of expressing a clear intention to vest the absolute right of ownership of the funds in the survivor,” but was sufficient to create a rebuttable presumption that the depositor intended to vest ownership in the survivor. Krueger v. Williams, 163 Tex. 545, 550, 359 S.W.2d 48, 51-52 (1962).
The signature card in the present case contained much more than the mere “payable to the survivor” language addressed in Krueger. The card furthermore provided that the funds were jointly owned and that withdrawals by the survivor were binding on the heirs, devisees, and personal representatives, and acted as an acquittal of the savings association. Although the card’s language is susceptible to the construction that the release of the financial institution is what is binding on the heirs *870and devisees, not that the survivor owned the funds, the clear law under Krueger is that one presumes survivorship rights were intended unless there is extrinsic evidence of a different intent. Because respondent Henderson produced no summary judgment evidence of an intent contrary to a joint account with survivorship rights, the presumption applies. The language of the card was at least sufficient to create a rebuttable presumption of survivorship rights.
Inconsistency with Prior Actions of the Court
There are two court of appeals opinions addressing the point at issue in this. They reach diametrically opposite conclusions and cannot be reconciled. Applications for writ of error in both cases were refused, no reversible error. In Chopin v. InterFirst Bank Dallas, N.A., 694 S.W.2d 79 (Tex.App.—Dallas 1985, writ ref’d n.r.e.), the court held that under the new statutory provisions the payable to the survivor language was insufficient to create a presumption of survivorship rights. In Sawyer v. Lancaster, 719 S.W.2d 346 (Tex.App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.), the court reached the opposite conclusion. A review of our court’s records shows that these actions can be reconciled only by the position advocated in this dissent.
It is elementary that under our former writ notation and practice, if the error in a court of appeals’ opinion was not preserved for our review on application for writ of error, the court would deny the application with the notation “refused, no reversible error.” In re Johnson, 569 S.W.2d 882, 883 (Tex.1978). When this court reviewed the decision in Chopin v. InterFirst Bank Dallas, N.A., 694 S.W.2d 79 (Tex.App.—Dallas 1985, writ ref’d n.r.e.), the Chopin petitioners failed to argue and therefore failed to preserve the point that the account signature card language was sufficient under section 439 to create the right of survivorship. The similar issue of whether the bank agreement language was sufficient to create survivorship rights was preserved in Sawyer v. Lancaster, 719 S.W.2d 346 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.). Our “n.r.e.” of the Sawyer case indicated no reversible error in that holding.
Further, as the members of the court joining the majority opinion well know, the writ notations of all the cases discussed as “confusing” by the majority can be reconciled by applying the rule that the Krueger presumption still applies. In many cases the error was not preserved, so the “n.r.e.” notation was necessary. If extrinsic evidence was sought to be used to contradict the express terms of an unambigous writing creating survivorship rights, it was barred. But if “payable to the survivor” type language appeared, the presumption that survivorship rights applied unless extrinsic evidence showed a contrary intent.6
Elevating “Magic Words” Over Common Sense
The Krueger presumption was grounded on common sense to protect the decedent’s probable real intention. The distinction between the right to withdraw the funds and have the action “binding on the heirs” of the decedent, but that “ownership” of the funds would not “vest” in the survivor who withdrew them, is too fine a legal line to expect an ordinary depositor signing a joint account card to make. Some commentators have suggested that the only safe language to use to create survivorship rights would be the “magic words” “A or B with right of survivorship” or “A or B as joint tenants with right of survivorship.” See, e.g., Warach and Wright, Money, Money, Who Gets the Money? Or Joint Bank Accounts With Right of Survivorship, 47 Tex.Bar J. 237, 241 (1984). Though legally unambiguous, it is not clear that the recommended “magic words” would mean more *871to the average layman than the words used in the present case. It is far more reasonable to believe, as the Krueger court did, that a layman using language conveying the message the funds were “payable to the survivor” would presumptively intend a survivorship account, but to allow extrinsic evidence to rebut that presumption. The court today destroys that common sense approach. The court’s decision today in effect elevates “magic words” to a pedestal they never before achieved. Even though a layman reading the signature card in dispute here would probably think it gave the right of survivorship, the majority holds that failure to have the “magic words” means the language does not “make to survive to the surviving party” the funds in the account, because, we are told, that the survivorship and acquittal language is just to protect the financial institution.
It is ironic that the majority cites the dissent in Quilter v. Wendland, 403 S.W.2d 335 (Tex.1966), and Forehand v. Light, 452 S.W.2d 709 (Tex.1970), for the proposition that Krueger was somehow an inferior opinion limited to its facts. See majority opinion, ante, at 862 & n. 4. Both Quilter and Forehand support the application of the Krueger presumption to the facts of this case.
In Quilter, the issue was whether there was a third-party beneficiary contract. The dissent maintained that because the account agreement signed by the decedent had never been delivered to the financial institution, no contract had been created and therefore no third-party beneficiary status accrued to claimant. With respect to Krueger and quoting from Krueger, the dissent said:
However, in Krueger, there was the additional fact that a receipt card was delivered to the savings association, whereas in the present case the passbooks and signature cards were not delivered. In Krueger, this Court gave great weight to the language appearing on the receipt card. The Court said:
“However, the language appearing on this receipt card does serve to vest in Mrs. Krueger some present interest in and control over the certificate as well as the contractual right to possession of the proceeds as survivor.” [Emphasis added.]
I can understand the holding in Krueger because the “receipt card” upon which the Court relied was actually delivered to the savings association.
Quilter v. Wendland, 403 S.W.2d 335, 339 (Tex.1966) (Smith, J. dissenting).
Compare the quoted and emphasized language from the Quilter dissent (quoting from Krueger) with what the signature card signed by Mrs. Henderson stated in the present case. The language on the joint account signature card stated, in part, that “[w]e agree * * * that all funds * * * are and shall be our joint property * * * and that upon the death of either of us any balance in said account or any part thereof may be withdrawn by, or upon order of the survivor * * * [and] shall be binding upon us and upon our heirs * * *.” It is clear that Krueger applies directly and that the dissenting justices in Quilter would have acknowledged such.
The issue in Forehand was whether mere words of joint ownership, stating that the certificates of deposit were payable to the order of “Mrs. J.B. Poindexter or Mary Light,” without more, created a right of survivorship. Likewise, the court’s discussion of Krueger showed it clearly would apply to the facts presented by our present case:
We had a more difficult decision in Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962) because a “joint control card” which evidenced the agreement of the decedent with a bank concerning an investment share account provided that the certificate was payable to “W.T. Williams and/or Ila Mae Krueger or payable to the survivor of either.” Williams signed the card but Ila Mae Krueger did not. We held that the phrase “payable to the survivor” contained apt words to *872raise a presumption of an intent to create survivorship rights even though the words fell short of the phrase “as joint tenants with the right of survivorship.” The word “survivor” was vital to our decision in Krueger.
Forehand v. Light, 452 S.W.2d 709, 710 (Tex.1970).
Krueger, Forehand, and their progeny are all cases that seek to use a common sense approach to presume what the layman depositor probably intended, but allow extrinsic evidence to rebut that presumption as with any ambiguous contract. Today the court takes a giant step backward to requiring “magic words” when the legislative intent and prior decisions of our court would not.7
This case is even more egregious, because Mrs. Henderson by her will left her residuary estate not to her husband but to her sister, the same Mary K. Stauffer against whom the court affirms the judgment. Recitations in her will show Mrs. Henderson’s marriage to J.D. Henderson was not her first, and that all her children were born during prior marriages. One may speculate that Mrs. Henderson did not trust her husband and deposited the funds in the joint account (with the survivorship language) because for whatever reasons she felt more comfortable with her sister’s sharing control and ownership of the account. Today the court denies to Mary Stauffer the presumption that survivorship was intended. But on the trial of the severed matters, Mr. Henderson will have the benefit of the presumption that the funds were community property to claim half of them, despite the apparent intent of his late wife (from both the joint account card and her will) that her sister have the funds. We should not eliminate a common sense presumption in order to work an injustice.
For these reasons, I respectfully dissent.
GONZALEZ, J., joins in this dissent.. Interim Study Report on Nontestamentary Transfers presented to House Judiciary Committee: Recommendation #36, 66th Leg., Reg.Sess. (1979).
. Now codified as Tex.Prob.Code Ann. § 46(a) (Vernon Supp.1990). As effective when the signature card was signed, the statute read as follows:
Where two (2) or more persons hold an estate, real, personal, or mixed, jointly, and one (1) joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owner or joint owners, but shall descend to, and be vested in, the heirs or legal representatives of such deceased joint owner in the same manner as if his interest had been severed and ascertained. Provided, however, that by an agreement in writing of joint owners of property the interest of any joint owner who dies may be made to survive to the surviving joint owner or joint owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership.
Tex.Prob.Code Ann. § 46 (Vernon 1980). Through amendments in 1987 and 1981, the legislature brought the statute to its present language:
(a) If two or more persons hold an interest in property jointly, and one joint owner dies before severance, the interest of the decedent in the joint estate shall not survive to the remaining joint owner or owners but shall pass by will or intestacy from the decedent as if the decedent's interest had been severed. The joint owners may agree in writing, however, that the interest of any joint owner who dies shall survive to the surviving joint owner or owners, but no such agreement shall be *867inferred from the mere fact that the property is held in joint ownership.
(b) Subsection (a) does not apply to agreements between spouses regarding their community property. Agreements between spouses regarding rights of survivorship in community property are governed by Part 3 of Chapter XI of this code.
. The other exceptions — subsection (b), P.O.D. accounts, and subsection (c), trust accounts— *868both are not relevant here. Tex.Prob.Code Ann. § 439(b), (c) (Vernon 1980).
. Dickerson v. Brooks, 727 S.W.2d 652 (Tex.App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.); Otto v. Klement, 656 S.W.2d 678 (Tex.App.— Amarillo 1983, writ ref’d n.r.e.).
. We also implicitly affirmed that result in our review of McCarty v. First State Bank & Trust Co., 723 S.W.2d 792 (Tex.App.—Texarkana), rev’d as to other parties on other grounds, 730 S.W.2d 656 (Tex.1987). This court could not reach the issue in what was apparently the first decision reaching that conclusion, Sheffield v. Estate of Dozier, 643 S.W.2d 197 (Tex.App.—El Paso 1982, writ ref'd n.r.e.), because the petitioner before this court had not preserved the point by raising it on motion for rehearing before the court of appeals.
The majority opinion’s citation of Magee v. Westmoreland, 693 S.W.2d 612 (Tex.App.—San Antonio 1985, writ ref’d n.r.e.), misses or obscures the point of the opinion. See majority opinion, at 864. In Magee, there was no account card or other writing signed by the decedent with the “payable to the survivor" language; rather, that language appeared in the certificate of deposit issued by the financial institution. Indeed, Finding of Fact No. 3 quoted in the court of appeals opinion was: “No written agreement was ever signed by Mary Louise Haag [decedent] stating the interest of Mary Louise Haag in Certificate of Deposit No. 14631 would on her death survive to Sam D. Magee.” 693 S.W.2d at 614. Further, the express holding was that there was no writing signed by the decedent. 693 S.W.2d at 616. The case does not hold that the language “payable to the survivor," had such been signed by the decedent, would have been insufficient to create survivor-ship rights. Likewise, the majority’s attempt to approve one holding of Otto v. Klement, 656 S.W.2d 678 (Tex.App.—Amarillo 1983, writ ref'd n.r.e.), while questioning another holding ("unclear ... whether it holding that there was a right of survivorship in the checking account was correct," majority opinion ante, at 865 n. 6), results from a refusal to distinguish between contradicting an express survivorship agreement and accepting the holding that “payable to the survivor” was sufficient language (absent con-traditory extrinsic evidence) to create survivor-ship rights.
. See supra notes 4 & 5 and accompanying text.
. The legislature has now expressly addressed the problem finding words that are legally unambiguous to create a joint survivorship account but at the same time clearly express that intent in layman’s terms. In 1987 the legislature amended section 439(a) by adding this sentence:
Notwithstanding any other law, an agreement is sufficient to confer an absolute right of survivorship on parties to a joint account under this subsection if the agreement states in substantially the following form: "On the death of one party to a joint account, all sums in the account on the date of death vest in and belong to the surviving party as his or her separate property and estate." Tex.Prob.Code Ann. § 439(a) (Vernon Supp. 1988).
By providing the “safe harbor” provision, the legislature has told financial institutions and their counsel exactly how to avoid ambiguity in drafting forms to create joint survivorship accounts. The careful practitioner is well advised to use substantially the same words now expressly sanctioned by the statute. By providing that the safe harbor language is sufficient "notwithstanding any other law," the legislature indicated it did not mean for the courts to retreat from the inroads made against requiring "magic words" and legalisms.