Bowling v. Bowling

WiNBORNE, J.

In connection with the assignments of error based upon the exceptions taken and presented on this appeal, it must be borne in mind that an estate by the entirety in personal property is not recognized in North Carolina.

Turlington v. Lucas, 186 N.C. 283 , 119 S.E. 366 ;

Davis v. Bass, 188 N.C. 200 , 124 S.E. 566 ;

Smith v. Smith, 190 N.C. 764 , 130 S.E. 614 ;

Winchester-Simmons v. Cutler, 194 N.C. 698 , 140 S.E. 622 ;

Dozier v. Leary, 196 N.C. 12 , 144 S.E. 368 ;

Wilson v. Ervin, 227 N.C. 396 , 42 S.E. 2d 468 .

And, under the laws of this jurisdiction, nothing else appearing, money in bank to the j oint credit of husband and wife belongs one-half to the husband and one-half to the wife, as this Court held in Smith v. Smith, supra.

Moreover, as stated by Denny, J., writing for the Court in Wilson v. Ervin, supra, “When property held by tenants by the entirety is sold, the proceeds from the sale will not be held as tenants by the entirety with the right of survivorship. Ordinarily, nothing else appearing, the proceeds from the sale of properties held by the entireties are held as tenants in common, but the parties would have the right to determine by contract what disposition should be made of the funds or how they *520 should be held.” And the opinion then goes on to say that “Since the abolition of survivorship in joint tenancy, G.S. 41-2, the right of sur-vivorship in personalty, if such right exists, must be pursuant to contract and not by operation of law or statutory provision,” citing Taylor v. Smith, 116 N.C. 531 , 21 S.E. 202 .

In the light of these principles applied to the facts in hand the wife, Agnes P. Bowling, would in any event be entitled to one-half of the four items of subject matter in controversy; and since the parties having contracted and agreed that the savings accounts described here-inabove as the second and third items, respectively, were held by them “as joint tenants with right of survivorship, and not as tenants in common,” the right of survivorship existed, and in so holding the trial judge ruled in accordance with decisions of this Court.

Hence the judgment fronj which plaintiff appeals is Affirmed.