Opinion
49662.
ARGUED SEPTEMBER 6, 1974.
DECIDED SEPTEMBER 25, 1974.
Action to recover estate. Fulton Superior Court. Before Judge Holt.
Harland, Cashin, Chambers Parker, Terrill A. Parker, for appellant.
Henning, Chambers Mabry, Edward J. Henning, Frank Fuller, for appellee.
1. Where the contract of deposit of two or more persons in a bank provides in express terms for the right of survivorship, upon the death of one the other is entitled to the proceeds.
2. The evidence presented on the motion for summary judgment demanded a finding that the original depositor, although using the trade name of a business since defunct, intended to add the name of his sister as a joint tenant with right of survivorship, so that upon his death the account belonged to her and not to the estate.
3. In any event, the release of all claims to the fund in favor of the co-signatory to the account who received the fund in return for her declination to act as executrix of the will of the decedent inures to the benefit of the bank, sued as executor de son tort in paying over such funds on demand of the surviving depositor.
ARGUED SEPTEMBER 6, 1974 — DECIDED SEPTEMBER 25, 1974.
Charles K. Evans died leaving a will in which he named his sister Mildred Miller as executrix, and a savings account with the defendant Tri-City Federal Savings Loan Association in the name of "Evans Clothing Company by Charles K. Evans or Mildred E. Miller as joint tenants with right of survivorship and not as tenants in common." After his death and prior to probate Mildred Miller drew out the proceeds of the account. Thereafter she and the decedent's wife Mildred Evans signed an agreement in which the sister renounced the executorship and the wife granted a release of all claims against her. Thereafter the wife, having qualified as administratrix cum testamento annexo brought suit against the savings institution as executor de son tort for double the amount of the deposit. Tri-City moved for summary judgment. From evidence presented at the hearing it appeared that "Evans Clothing Company" was a trade name in which the deceased had done business as a sole proprietorship and that neither his wife nor his sister had any interest therein; that after originally opening the account as "Evans Clothing Company by Charles K. Evans" he had brought his sister in, informed a bank employee that he wanted her name added to the account, and from several possible cards had chosen the one on which the signatures were placed. A year or so before his death he had sold the entire business to third parties. The widow deposed that at the time she took the release of all claims from Mildred Miller she was aware that Mildred Miller had drawn out and retained the proceeds of the account and that it was her intention to include this claim within the terms of the release, stating that she meant to release her from paying the money back to the estate. However, she contended that the account belonged to "Evans Clothing Company," which was her husband's trade name, that the name of Mildred Miller had been added only as one authorized to draw checks to such account, and that the bank in allowing the proceeds to be paid out after Evans' death had wrongfully intermeddled with the estate.
The trial court denied the motion for summary judgment, and defendant appeals.
1. "A State-chartered association or a Federal savings and loan association may issue accounts to two or more persons, as A or B ... in which event any of such persons who shall first act shall have power to act in all matters related to such account whether the other person or persons named on such account be living or not. The title hereby contemplated and created shall be the full equivalent of the common law joint tenancy with right of survivorship." Code Ann. § 16-431. "While survivorship is not generally favored in the law of this state (see Code § 85-1002), it is not prohibited; and when the contract provides for it in express terms or by necessary implication, it will be enforced." Sams v. McDonald, 117 Ga. App. 336, 341 ( 160 S.E.2d 594). Under Code § 13-2039, when a deposit is made in the names of two persons, payable to either or the survivor it may be "paid to either of said persons, whether the other be living or not; and the receipt of acquittance of the persons so paid shall be a valid and sufficient release and discharge to the bank for any payment so made." This Code section controls the liability of the bank as to such a deposit, and does not affect the right to the property as between the parties. Nash v. Martin, 90 Ga. App. 235 (1) ( 82 S.E.2d 658). It follows that unless the defendant savings institution, through its agents, had reason to know that there was a contrary intention on the part of the depositors it acted in accordance with its clear cut legal obligations in paying over the money on demand to the decedent's sister.
2. The uncontradicted evidence before the court consisted of that of Mildred Miller to the effect that her brother wished to set up a joint savings account which he told her she could withdraw at any time, and that of the bank employee who said Evans told him "he wanted his sister's name added to the account," and chose the card which was in fact used in place of the original account card he had previously made out. The employee admitted the same card could have been used had Evans merely wished to add an additional signature to the account of "Evans Clothing Company" and plaintiff contends that this makes a jury question as to intent. But "Evans Clothing Company" was only a trade name in which Evans did business, and the business was sold by him prior to his death. Trade names are considered as are fictitious names or misnomers; a debt, had it been owed by Evans during his lifetime, could have been sued to judgment against "Evans Clothing Company" and collected from Evans personally. Eslinger v. Herndon, 158 Ga. 823 (4) ( 124 S.E.2d 900), and see Mozley v. Devore, 122 Ga. App. 867 (2) ( 179 S.E.2d 102). There was in fact no Evans Clothing Company, but there was an account, Mildred Miller's name had been added to the account, and the only existent entities were Evans and Miller. No evidence suggests that Evans did not intend for Miller to have a right of survivorship, and the signature card clearly states that she had such right. The signature card was chosen by him.
Code § 113-1102 renders one who without authority of law, and in the absence of an administration of the estate, wrongfully intermeddles with or converts to his own use the personalty of the deceased liable for double the value of the property so possessed or converted. "This Code section is in derogation of common law and must be strictly construed. It is a harsh remedy in that it provides a one hundred percent penalty based on the value of property involved plus the denial of benefits that would otherwise accrue to the defendant. For a petition under this section to be good as against a general demurrer it must show intermeddling in bad faith, possession amounting to a conversion in bad faith, or an attempt to deal with the property in question as an executor in bad faith." Robbins v. Riales, 113 Ga. App. 881, 883 ( 150 S.E.2d 187) and cit. "While it takes, as a general rule, very little to charge a person as executor de son tort, still that which will charge him as such must be such an act as shows an intention on the part of the alleged wrongdoer to take upon himself the exercise of those duties which appertain to the office of the legal representative only ... If the act done, although it be an act of intermeddling with the goods of the deceased, be inconsistent with an intention on the part of the person sought to be charged as executor in his own wrong to exercise the office and discharge the duties of a legal representative, then such person, although he may thus render himself liable to the legal representative of the estate when appointed, will not be chargeable as an executor in his own wrong." Willingham v. Rushing, 105 Ga. 72, 79 ( 31 S.E. 130). See also Chattanooga Stove Co. v. Adams, 81 Ga. 319, 324 ( 6 S.E. 695). The form chosen and signed by the decedent clearly constituted his sister as one entitled to the fund. No fraud or bad faith on the part of the defendant appears; it was simply carrying out its statutory duty under the terms of the signature proxy. It undertook no duties appertaining to the office of a legal representative of the estate; Mildred Miller was entitled to no part of it, either as creditor, heir or legatee. The denial of the defendant's motion for summary judgment was error.
3. Further, the plaintiff's release of the person receiving the fund with knowledge of the above facts should inure to the credit of the bank against whom the only misconduct alleged is that it paid the fund over to a co-signatory upon the latter's demand. Appellee contends that the general rule that a release of one joint tortfeasor releases all is not applicable in an action against an entity solely in its capacity of executor de son tort because of the language of Wiley v. Truett, 12 Ga. 588 (1): "If one man takes the goods of the deceased and sells, or gives them to another person, this shall charge him as an executor de son tort, but not such other person." As demonstrated above, this is because the statute is punitive in character, the double damages being assessed only against the person presuming to act without authority as the legal representative of the estate, and the person receiving the benefit of such wrongful act cannot be chargeable with these damages. This does not mean that the person disposing of the goods and the person acquiring them may not be joint wrongdoers in the usual sense of the term. In O'Neal v. O'Neal, 176 Ga. 418 ( 168 S.E. 262) where a suit brought against a husband and wife jointly, charging the husband as executor de son tort in acquiring possession of the decedent's personal property and turning it over to his wife, and the wife as wrongfully retaining it against the claims of the estate, the petition was held not subject to general demurrer. If a conversion had resulted here it would have been for the sole benefit of Mildred Miller, or, had Mildred Miller entered on her duties as the named executrix of the estate she would have been entitled to the fund as a part of its proceeds. The plaintiff should not be allowed to "buy" the administration from Miller in return for allowing Miller to keep the proceeds of the account individually while at the same time charging the bank with wrongfully paying them over to her. The release would therefore inure to the credit of the bank.
The trial court erred in denying the defendant's motion for summary judgment.
Judgment reversed. Eberhardt, P. J., and Stolz, J., concur.