Opinion
No. 77-280
Decided January 26, 1978. Rehearing denied February 23, 1978.
Personal representative of decedent's estate brought action to recover funds withdrawn by defendant from savings accounts held in joint tenancy by decedent and defendant. From judgment concluding that estate could recover one-half of amount withdrawn, defendant appealed.
Reversed
1. JOINT TENANCY — Savings Account Agreements — Unambiguous — Permitted Unlimited Withdrawals — Either Joint Tenant — Substantial Withdrawals — One Co-Tenant — Shortly Before — Other's Death — Rights of Survivorship — Not Terminated. Where joint tenancy agreements entered with savings institutions provided that each joint tenant had absolute right to withdraw all funds therein, and there was no evidence to counter those unambiguous agreements signed by the co-tenants when the accounts were created, and no showing that either co-tenant intended that any substantial withdrawal from an account by either of them would destroy the unity of possession or the right of survivorship, those joint tenancy relationships were not severed by one co-tenant's withdrawal of $21,500 from the accounts shortly before the other co-tenant's death, and accordingly, the withdrawing co-tenant's right of survivorship to the funds is preserved.
Appeal from the Probate Court of the City and County of Denver, Honorable Stewart A. Shafer, Judge.
Isaacson, Rosenbaum, Spiegleman Friedman, P.C., Louis G. Isaacson, Edward T. Ramey, for petitioner-appellee.
Bowman, Shambaugh, Geissinger Wright, James D. Geissinger, for respondent-appellant.
The personal representative of the estate of Clara E. Beasley, deceased, brought an action to recover the sum of $21,500 which had been withdrawn by Cleo V. Trent (the appellant) from two savings accounts held in joint tenancy by the appellant and the decedent. The probate court ultimately concluded that the estate was entitled to recover one-half of the amount withdrawn or $10,750, less certain credits not relevant here. We reverse.
The record discloses that the two savings accounts were established by the decedent with her own separate funds in 1965 subsequent to the death of her first husband. The accounts were in the decedent's name and the name of the appellant, the decedent's sister, in joint tenancy with rights of survivorship. The record further discloses that the parties intended that if either died the other would receive the entire amount in the accounts. In December 1974 and January 1975, the appellant withdrew $21,500 from these two accounts, leaving combined balances in the accounts of less than $1200. On February 13, 1975, the decedent died.
The only issue raised here is whether the probate court was correct in its conclusion that appellant's withdrawal of substantially all of the funds in the two accounts operated as a matter of law to sever the joint tenancy relationship and thereby to destroy appellant's rights of survivorship.
The joint tenancy agreement with the First National Bank of Denver, signed by the deceased and Cleo V. Trent, provided in part, as follows:
"It is hereby expressly agreed by and between the signatories hereto, and each of them, and the First National Bank of Denver, that all moneys deposited with the said bank by either or both of them, shall be placed by the said bank to the credit of us jointly, and may be withdrawn from or paid out by the said bank upon a request or order by both or either of us.
. . . .
"It is further expressly agreed between the parties hereto that upon the death of either of us, the survivor shall have the absolute right to withdraw or be paid all moneys not then withdrawn and the right of survivorship in this joint account is created and shall continue until subsequently abrogated by the signatories hereto, or until terminated by the death of either."
The agreement with the National City Bank provided in part:
"The entire account or any part thereof may be withdrawn by, or upon the order of, either of us or the survivor.
. . . .
"It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representative."
As stated in Collins v. Shanahan, 34 Colo. App. 82, 523 P.2d 999:
"The construction of unambiguous written instruments is an issue of law, and this court is therefore not bound by the lower court's conclusions . . . . We are here guided by the rule of construction which states that the intention of the parties, as reflected in the language of the agreement, is controlling."
[1] Here there is no evidence to counter the unambiguous agreements signed by the parties when the accounts were created. Either party had the right to withdraw all or any part of the funds on deposit and apply the withdrawn funds to any use. There has been no showing that they intended that any substantial withdrawal from either account by either of them would destroy the unity of possession or the right of survivorship. Therefore, the joint tenancy relationship was not severed by the withdrawals, and the appellant's right of survivorship to the funds at issue is preserved.
The conclusion which we reach here is unaffected by the provisions of § 11-6-105, C.R.S. 1973, which statute is expressly limited by its terms to delineate rights and liabilities only as between a bank and its depositors. Nor have we considered § 15-15-103 and 104, C.R.S. 1973, since these accounts were established prior to the effective dates of said statutes. See § 15-17-101(2)(d), C.R.S. 1973.
We therefore reverse the judgment of the trial court and remand with directions to dismiss petitioners' complaint.
JUDGE ENOCH and JUDGE PIERCE CONCUR.