McEntire v. Estate of McEntire

John A. Fogleman, Justice,

concurring in part; dissenting in part. Although I agree that summary judgment in favor of the bank was proper, I cannot agree that the estate of J. L. McEntire was entitled to a summary judgment in this case. Perhaps the basis for my disagreement is the majority’s treatment of the basic document upon which appellant relies as a signature card. It may be, even though it is not so labelled, but it is much more than that. It is an agreement between J. L. McEntire and his wife, Vera E., both of whom signed the document. The fact that it is an agreement between them is obvious from reading the second paragraph of the quotation in the majority opinion. I simply do not see how anyone could argue that, at least on the face of the agreement, a tenancy by the entirety was not created. This is not a case where the agreement was ‘ ‘in fine print’ ’ or where it was on the back of a signature card. It was above the signatures of the parties.

In considering the question whether a tenancy by the entirety existed, it must be remembered that the four unities once required for a joint tenancy are no longer required for a tenancy by the entirety in that a vesting of title at the same time is no longer required when one of the spouses executes an instrument conveying or transferring an interest to himself and his spouse. Ebrite v. Brookhyser, 219 Ark. 676, 244 S.W. 2d 625; Harmon v. Thompson, 223 Ark. 10, 263 S.W. 2d 903. We have indicated that this holding would be equally applicable where personal property is involved. Miller v. Riegler, 243 Ark. 251, 419 S.W. 2d 599. In speaking oí Ebrite v. Miller, we said:

This decision certainly has not been viewed as unsound for there can be no logic in preventing a spouse from directly giving to his or her marriage partner equal rights in property that is owned, when the same result was permitted by creating the estate through a third party who really held no interest in the property at all.

Consequently, decisions based upon the obsolete premise of unity of time are no longer controlling or even persuasive.

Furthermore, it has long been recognized that a husband may, by simply changing a bank account from his own name to that of him and his wife, create an estate by the entirety. Black v. Black, 199 Ark. 609, 135 S.W. 2d 837. It has been said that the creation of a “husband and wife’ ’ joint account is not a true common law tenancy by the entirety because either party may extinguish the joint estate while both are living as to any part of the money withdrawn from the account and reduced to separate possession. Those holdings are applied where the tenancy is dependent upon the mere establishment of the account in two names or upon statutes. See McGuire v. Benton State Bank, 231 Ark. 608, 331 S.W. 2d 258, 232 Ark. 1008, 342 S.W. 2d 77. There is no indication whatever that there was any agreement in McGuire of the nature of the one involved here.

It must be remembered that appellant’s reliance is not placed upon any statute for an investiture of title in her, so cases based upon statutes have neither controlling nor persuasive effect. Davis v. Jackson, 232 Ark. 953, 341 S.W. 2d 762, relied upon by the majority, is such a case, as is Coristo v. Twin City Bank, 257 Ark. 554, 520 S.W. 2d 218. It also must be kept in mind that the relationship of husband and wife did exist in the present case, so cases involving parties standing in other relationships, such as Davis v. Jackson, supra, should carry little weight.

It also must be remembered that this is not a case where the husband was attempting merely to have the account pass to his wife upon his death. Instead, the agreement was that the account be presently owned by the husband and wife jointly, with the right of survivorship. Under the agreement appellant could have withdrawn every cent in the account. There is nothing in the document appellant relies upon to indicate that the arrangement was simply testamentary. Cases in which the attempt was made to merely cause the balance of the account to pass to the surviving spouse on death of the other have no bearing.

It seems clear to me that the widow had the right to litigate the question of ownership of the funds. In Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S.W. 1, the funds in question were the proceeds of a loan on lands held by a husband and wife as tenants by the entirety. The husband deposited them in his own account rather than in the joint names of the parties. The court said that, in equity, the matter was to be considered as if he had deposited the funds jointly and, because the funds had not been reduced to the husband’s separate possession, with the wife’s knowledge and consent, they were the property of the husband and wife as an estate by the entirety. In this case, under the agreement, the funds were considered as deposited jointly. In Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S.W. 57, the court held that a tenancy by the entirety in funds withdrawn from a joint bank account by a husband and reduced to this separate possession with the knowledge and consent of the wife had been destroyed. In Dickson, every cent put into the account belonged to the husband and the wife had never drawn any checks on the account. Still both knowledge and consent of the wife were required to validate the husband’s destruction of the tenancy by the entirety. Consent is contained in the agreement between the parties here, but there is absolutely nothing to indicate that appellant had any knowledge of Mr. McEntire’s reduction of the entire account to his separate possession.

On the executor’s motion for summary judgment, it was incumbent upon him to show that there were reasons why the agreement should not be binding. There is no showing that Mr. McEntire did not read and understand the language of the agreement. There is no showing that he did not instruct the employees of the bank in a manner that would indicate an intent contrary to the one carried out. There is nothing to indicate an intent contrary to the one stated in the agreement. See Park v. McClemens, 231 Ark. 983, 334 S.W. 2d 709. Even though the burden might be different on trial of the case, it certainly was the executor’s burden to show such things on motion for summary judgment. The burden is on the movant for a summary judgment to show that there are no material issues of fact. Pioneer Finance Co. v. Lane, 255 Ark. 811, 502 S.W. 2d 624; Harvey v. Shaver, 247 Ark. 92, 444 S.W. 2d 256.

The treatment of the question of gift in this case totally disregards the relationship of husband and wife and the authorities cited have no bearing on the question for the reason that neither involved such a relationship. The decision in Ramsey v. Ramsey, 259 Ark. 16, 531 S.W. 2d is controlling. There we said that where the husband is responsible for property being taken in both names, the fact that the consideration given belonged to the husband only is of little, if any, significance. The reason is that the presumption is that there was a gift of an interest by the husband to the wife, even though the wife may have no knowledge of the transaction. As to that presumption we said:

The presumption is strong, and it can be overcome only by clear, positive, unequivocal, unmistakable, strong, and convincing evidence, partially because the alternative is a resulting trust the establishment of which, under such circumstances, requires that degree of proof.

The property involved in Ramsey was promissory notes. We further said that delivery to the husband is considered as delivery to the husband and wife sufficient to make the gift complete. As I see it, the question of gift relates only to the creation of a tenancy by the entirety. There was a completed gift to appellant of her title as a tenant by the entirety, which has not been shown to have been destroyed by the husband with her knowledge.

We have recently recognized the right of parties to a joint account to litigate the ownership of money which a bank permitted to be withdrawn from a joint account by one co-tenant without the knowledge of the other tenant. Haseman v. Union Bank of Mena, 262 Ark. 803, 562 S.W. 2d 45. We should at least do the same here by reversing the judgment in favor of the McEntire estate.

I am authorized to state that Mr. Justice Hickman joins in this opinion.