Kyle v. Groce

Court of Appeals of North Carolina
Kyle v. Groce, 272 S.E.2d 609 (1980)
50 N.C. App. 204; 1980 N.C. App. LEXIS 3454
Webb, Martin, Hill

Kyle v. Groce

Opinion

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.

In Westcott 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 *206 does not comply with the requirements of a will. Chapter 31, Art. I of the North Carolina General Statutes.

Affirmed.

Judges MARTIN (Harry C.) and HILL concur.

Reference

Full Case Name
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
Cited By
2 cases
Status
Published