dissenting. I do not agree with the application of the law to the facts as stated in the majority opinion. I am at a loss to understand how this court could order a bank to pay the same money out twice when it is being held in trust for the rightful owner. The majority primarily anchor their opinion on Ark. Stat. Ann. § 67-552 (e) (Repl. 1980). In order to have a better understanding of this statute it is set out in pertinent part as follows:
. . . certificates of deposits may be held:
(a) If the person . . . purchasing such certificate of deposit, designates in writing to the banking institution that the ... certificates of deposit shall be payable to the survivor or survivors of persons named in such . . . certificates of deposit, then such . . . certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivor-ship. Such ... certificates of deposit may be paid to or on the order of any one of such persons during their lifetime, unless a contrary written designation is given to the banking institution, or to or on the order of any one of the survivors of them after the death of any one or more of them. The . . . purchase of the certificate of deposit in such form shall be conclusive evidence in any action or proceeding to which either the association or surviving party or parties is a party, of the intention of all of the parties to the . . . cetificate of deposit to vest title to such... certificate of deposit and the additions thereto in such survivor or survivors. No banking institution paying any survivor in accordance with the provisions of this section shall thereby be liable for any estate, inheritance or succession taxes which may be due the State.
(b) . . .
(c) . . .
(d) . . .
(e) If a person opening or holding an account or certificate of deposit shall execute and file with the banking institution a designation that on the death of the person named as holder, the account or certificate of deposit shall be paid to or held by another person or persons, the account or certificate of deposit and any balance thereof which exists from time to time, shall be held as payment on death account or certificate of deposit and unless otherwise agreed between the person or persons opening the account and the banking institution.
(f) Upon the death of the holder of the ... certificate of deposit, the person or persons designated by him and who have survived him shall be the owners of the same (as joint tenants with right of survivorship if more than one) and any payment made by the banking institution to any of such persons shall be a complete discharge of the banking institution as to the amount paid.
(g) • • •
(h) . . .
The majority rely upon subsection (e) above. This section does not make sense to me, as it is not even a complete sentence. No court could validly make a decision based upon this particular section.
The majority also cite the cases of Cook v. Bevill, 246 Ark. 805, 440 S. W.2d 570 (1969), and McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980), as authority for the opinion. In reading Cook I am of the opinion that it is a mixture of the old law and new law and the law relating to savings and loan associations and that of banking associations. The facts in Cook were that the decedent, E. J. Bryeans, purchased two certificates of deposit. One was in his name alone and the other in the name of “E. J. Bryeans or Andy Bevill.” After Byreans’ death the administrator and Bevill became involved in an argument which resulted in the lawsuit. The banker testified at the trial that Bryeans’ intention was that Andy Bevill have the proceeds of the deposits made in the two names in the event of Bryean’s death. The court then went into a discussion of Act 260 of 1937 and Act 444 of 1965, which are codified in Ark. Stat. Ann. § 67-521 (Repl. 1980). The court also considered Act 78 of 1965 which was codified as Ark. Stat. Ann. § 67-552 (Repl. 1966), and which now appears as Ark. Stat. Ann. §67-521 (Repl. 1980). Both Act 260 of 1937, as amended, and Act 444 of 1965 deal with bank deposits in the name of two or more persons. Neither of these acts deals with certificates of deposits. The result of the holding in Cook is that there must be substantial compliance with the “designation in writing” requirements of Ark. Stat. Ann. § 67-552. The proceeds of the certificates of deposits were awarded Bevill because there had been no designation in writing authorizing payment of the certificates to Cook.
In McDonald v. Treat, supra, the decedent had a savings account in the savings and loan association. There was no document signed by the decedent as to how the account was to be paid upon her death. Nevertheless, the savings and loan paid the amount in the account to the decedent’s niece. The niece was ordered to restore the money to the estate. There we also held that there must be a designation in writing that the account is payable to someone other than the purchaser before such may be used in lieu of a will to transfer money to a survivor. We said in McDonald: “Thus what the new statutes did was to correct the earlier state of uncertainty by requiring that persons who resort to payable-on-death accounts or certificates designate in writing, over their signatures, just who is to receive the money at their death.”
Another case cited in the majority opinion is Lovell v. Marianna Federal S. & L. Ass’n., 264 Ark. 99, 568 S.W.2d 38 (1978). In Lovell, we were also dealing with certificates of deposit. Originally the deposits had been placed in an account in the name of R. L. Lovell or Ann P. Lovell. R. L. Lovell purchased the certificates of deposit and he later took the certificates to the association and had the name of his son, Jimmy Lonnie Lovell, added and caused the name of his wife, Ann Lovell, to be stricken from the card. R. L. Lovell signed each of the certificates and his signature was witnessed by a bank employee. The association’s employee pulled the ledger sheets, struck the name of Ann P. Lovell, inserted the name of Jimmy Lonnie Lovell and noted “changed 3-2-73.” R. L. Lovell initialed each change and affixed his signature to the card. The trial court awarded the proceeds to the widow, Ann Lovell, in an action wherein the association had interpleaded the certificates. We reversed and held that the certificates belonged to Jimmy Lovell.
I see no need to discuss the statute of limitations in any manner whatsoever. It is clear and obvious that it is the duty of a depositor to designate in writing the party he wishes to receive the proceeds in the event of his death. The statute provides that upon the death of the holder of such certificates the person or persons designated who have survived shall be the owners and payment to any such persons “shall be a complete discharge of the banking institution as to the amount paid.” None of the cases quoted above involve double payment by the savings institution.
The certificates of deposit are still intact. If they were to be paid to Marlin Rice, then the court should pay them to Marlin Rice. On the other hand, if there was not a “designation in writing,” then the proceeds should be paid to the estate of Melvin Rice. It is unconscionable, so far as I am concerned, to order the bank to pay twice. It is obviously the fault of Melvin Rice that he never completed his designation in writing. There is no dispute that both the decedent and the bank understood the certificates were to be paid to Marlin Rice upon the death of Melvin Rice. Even if the bank failed to do all they were supposed to do, there is no harm done. Had all the acts been completed which were necessary to effectuate the change, the certificates would have been the property of Marlin Rice. The estate would not have had the certificates if everything had been done to transfer them to Marlin. Equity treats as done that which ought to have been done. In my opinion, the evidence was sufficient to require a finding that failure to complete the transfer was the fault of the decedent. I do not see actionable negligence on the part of the appellant. Therefore, I cannot join the majority.