Honorable Robert S. Calvert     Opinion No. WW-1013
Comptrollerof Public Accounts
Capitol Station                 Re: Distributionfor Inheritance
Austin, Texas                       tax purposes of decedent’s
                                    one-half community interest
                                    In savings accounts held by
                                    the decedent and his survlv-
                                    lng spouse as joint tenants
Dear Mr. Calvert:                   with right of survivorship.
     We quote the following excerpt from your letter requesting
the opinion of this office on the above captionedmatter.
          “Preston 0. Northrup died testate,
        a resident of Bexar County, Texas, on
        April 12, 1958. Among the assets of
        the decedent’s estate the following
        described aavlngs and loan accounts were
        held with various saving8 institutions
        and banks:
          “ALiMO NATION& R&W, SAN ANTONIO, TEXAS
        Savings Account No. 55142 in the names
        of Preston Q. Northrup and/or Gretchen
        C. Northrup or survivor, In the amount
        of $10,276.87,plus$87.3 interest
        accrued to April 12, 1953 - $10,364.22
                     Community one-half      $ 5,182.ll
          “FM AND HOME SAVINQ@ AND LOAN ASSOCIATION
        Savings Acoount No. 7-989i in the names of
        Preston a. Northrup and tJretohenC. Northrup
        or either or survivor   in the amount of
        $X&394.32 plur 1,124.49 Interest accrued
        to April 12, 195Q - $114,518.81
                      Community one-half      $57,259.41
          "KBLLY FWLD NATIONAL w,     SAN ANTONIO,
        TEXAS
        Savings Account No. 60 in the nqnes of
        Preston Q. or Gretchen C. Northrup, In
        the amount of $10+&,652.39as of March 31,
        1958, plus $72.17 Interest accrued to
        April 12, 195~o~~$i7~~i5~a1f
                                             $51,362.28
Honorable Robert S. Calvert, Page 2        Opinion No. WW-1013


           "MAIN BANK & TRUST, SAN ANTONIO, TEXAS
         Savings Account No. 12 in the names of
         Preston Gi.Northrup or Gretchen C. Northrup
         in the amount of $10,551.92plus 89.69            I
         Interest accrued to April 12, 195Q -
         $10,641.61
                      Community one-half       $ 59320.81
           "MAIN BANK & TRUST SAN ANTONIO, TEXAS
         Savings Account No, 462 inthe names of
         Preston Q. Northrup or Gretchen C. Northrup
         in the amount of $52,261.14plus 444.22
         Interest accrued to April 12, 1958 -
         $52,705.36
                      Community one-half       $26,352.68
          "SAN ANTONIO SAVINGS AND LOAN ASSOCIATION
        SAN ANTONIO, TEXAS
        Account No. 1-37137 In the names of Preston
        0. Northrup and Mrs. Gretchen C. Northrup
        in the amount of $55,353.88plus 98.91
        Interest accrued to April 12, 195Q -
         $55,902.79
                      Colmnunltyone-half       ,$27,951.40
           "The total community value of these
         accounts 1s $346,857.35and the one-half
         community Interest of the deceased Is
         $173,428.67.
           "Under the provisions of the last will
         and testament of the deceased, the decedentIs
         one-half community Interest In these accounts
         passes 80 per cent to Trinity University of
         San Antonio and 20 per cent to The Sunshine
         Cottage School for Deaf Children, San Antonio,
         Texas.
           "We are now In the process of distributing
         this estate for Inheritancetax purposes and
         we would thank you to advise this department
         whether we should distribute the decedent's
         one-half community Interest in these eavlngs
         accounts under the last will and testament
         of the deceased or to the survlvlng spouse
         of the deceased as joint tenants with rights
         of survivorship."
     The Texas Supreme Court recently passed upon the question
of whether corporate stock purchased with community funds and
Issued In the n+mes of the husband and,~wlfe"as joint tenants
Honorable Robert S. Calvert, Page 3     Opinion No. WW-


with right of survivorshipand not as tenants  In common” con-
stitutes communityproperty 01”belongs to the wife as her
separate estate upon her husband’s death. Hilley v. Hilley,
4 Tex. Sup. Ct. Jour. 213, January 25, 1961, Motion for Rehearing
overruled, February 1, 1961. We regard this case as decisive
of the question you have presented. We quote the following
excerpt from page 214 of the court’s opinion:
          “Article 2580, Tex, Rev. Clv. Stat.
        1925, provided that where two or more
        persons held an estate jointly the Interest
        of one who died before severance would vest
        In his heirs or legal representativesand
        not survive to the other joint owners. It
        was held In Chandler v. Kountze, Tex. Clv.
        APP., 130 S.W.2d 327 (WT. ref.), that while
        the relationshipof joint tenancy, Including
        the doctrine of survivorship,was thereby
        abolished In situationswhere the same
        would otherwise have been created by law*’
        the statute did not prevent the grantees
        In a deed from making an effective agree-
        ment among themselves that the property
        conveyed should pass to and vest In the
        survivor as at Common law. A written
        survlvorshlp,contractcovering a joint
        back account was also upheld In Adams v.
        Jones, Tex. Clv. App., 258 S,W,2d 401 (no
        writ). When Article 2580 was carried Into
        and became Section 46 of the Probate Codes
        the language o? the earlier statute was
        preserved with the express proviso.that,
        ‘by arlagreement In writing of joint owners
        of property, the.lnterestof any joint owner
        who dies may be made to survive to ,thesur-
        viving joint owner or joint owner&, but no
        such agreement shall be Inferred from the
        mere fact that the property Is held In joint
        ownership.’ We asmme for the purpose of
        this opinion that In view of the instructions
        given to the broker by the husband In the
        wife‘6,presence, the Issuance and acceptance
        of the $$ock certificatesin their names as
        joint tenants with right of s~vlvorahlp
        constitutesa written afreeme,ht within the
        meaning of the statute,     *
     We assume for the purpose of this opinion that the joint
savings and loan accounts In question were held under a written
survivorshipagreement within the meaning of Sdction 46 of the
Probate Code.
Honorable Robert S. Calvert, Page 4     Opinion No. UW-1013


                          that In amending Article 2580 (Section
                         the Legislaturedid not intend to
modify other statutes and provide that separate ownershipmight
result from a transactionwhich does not meet the requirements
of Articles 4613, 4614, 4619, 4ji24aand 881a-23; Vernon’s
Annotated Texas Civil Statutes. “Under the Constitution,  ”
said the court, “property which. . e fihe wlfg acquires during
marriage In any manner other than by gift, devise, descent,
purchase with separate funds, or partition as authorizedby
Articles 4624a and 881a-23, does not and cannot be made to
constituteher separate property.” Since the stock did not
become ,thewlfets separate property at the hyfjbandPsdeath,
and since the husband died Intestate,his CoUununltyInterest
In the stock passed and vested In accordancewith the laws of
descent and distribution.
     In the’case you have submitted for,our consideration,
the decedeht died testate. Since the decedent”8 community
Interest In the savings and loan accounts did not become his
wife’s separate property at his death, his community Interest

3. Articles 4b13 and 4614 define reapectlvely,theseparate
goparty of husband and rlie. Article 4614 also provides that
the wife, If she i8 at least twenty-oneyears of age and elects
.lnthe .manner,
              set out.In+he, statute,.ahall..havethe .solemanage-
ment, control and dispositionof her separate property and in
connectioxx‘therenithmay contract without the joinper of her
husbandm If the,ulfe has thus acquired power to contract wlth
the husband regarding her separate property, the oourt In the
Hllle case state8 that there would be no legal reason for say-
EiigE at they could not make an effeetfve survivorshipagree-
ment covering the property separately owned by either or both,
Under such circumstances,the survivorshipr%ght or Interest
acquired by each at the time of making th4 contract would be
by gift or purchase for a considerationpaid out 0f.separat.e
property. Article 4619 provides that &ll property acquired
by either the husband or wlie during marriage,,except that
which is the separate property of elthe7 ehall be deemed oom-
munlty. Article 4624a provides for a method for partitioning
the community property pursuant to the provlslontiof Article
XVI, Section 15 of the Texas Constitution. Article 881a-23
provides that shares or share accounts Issued by’any building
and loan associationorganized under the laws of this State,
or by any Federal savings and loan.ass?clatlondomlclled.‘ln
this State, In the name of two,or more persons, or to two or
more persons or the survivor of either, may be withdrawn on
the signature of elther,partyto ivhomshares or share accounts
were issued, and no recovery shall be had againat such assocla-
tlon for amounts so paid.

                                                                    .

                                .
    Honorable Robert S. Calvert, Page 5      Opinion No. W-1013


    necessarilypassed under the terms of hla will; and the
    Inheritancetaxes should be computed accordingly.
         The holding of this opinion is expressly limited, as
    Is the decision In the Mllle case, to cases Involving com-
    munity property and survivor Ip agreementsbetween husband
    and wife. If separate funds are Involved, a written survivorship
    contract covering joint savl s and loan accounts would be upheld
    If the requisites of Section“&6 of the Probate Code are satlslfled;
    and the property would pass upon the death of a joint tenant to
    the survlvlng joint owner or owners.

                              SUMMARY

                  The decedent’s one-half community
             Interest In savings and loan accounts held
             by the decedent and his surviving spouse
             as joint tenants with right of survlvor-
             &hip did not become the separate property
             of the wife at decedent’s death but passed
             under the terms of decedentas will, Inherlt-
             &nce taxes should be computed accordingly.
                                   Yours very truly,
.                                  WILL WILSON
                                   Attorney General of Texas


    MMP:cm                         BY
    APPROVED:   .
    OPINION COMMITTEE:
    W. V. Qeppert, Chairman

    Edward A. Cazares
    John C. Phillips
    John Leonarz
    Dudley McCalla
    REVIEWED FOR THE ATTORNEY QENERAL
    By: Morgan Nesbitt
