For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
Appeal is herein taken from an order of the Cape May County Court granting plaintiff's motion for summary judgment. The judgment awarded plaintiff, Marie J. Ward, funds remaining in two accounts opened in 1957 in defendant bank, both entitled "Charles M. Cox, Jr. or Marie J. Ward, payable to either or the survivor." Charles M. Cox, Jr. died in November 1959. Claude F. Cox, the appellant herein, was appointed administrator of the decedent's estate and claimed the funds remaining in the above entitled savings and checking accounts. Plaintiff also asserted her ownership and brought suit to adjudicate title to the accounts and to compel the bank to hand over the moneys. Appeal was taken to the Appellate Division from the judgment of the County Court, but before argument there we certified the case on our own motion.
The basis for the decision of the County Court was N.J.S.A. 17:9A-218, which reads in part:
"A. When a time or demand deposit account is maintained in a banking institution in the names of 2 persons, payable to either or to the survivor, the banking institution shall pay any moneys to the credit of the account from time to time to, or pursuant to the
order of, either of said persons during the lives of both, in the same manner as if the account were in the sole name of such of the 2 persons to whom, or pursuant to whose order, the moneys are paid. Upon the death of the first of the 2 persons to die, the banking institution shall pay the moneys to the credit of the account, less all proper set-offs and charges, to, or pursuant to the order of, the survivor.
B. When either, or both, or only 1 of the 2 persons in whose names a time or demand deposit account is maintained in any form described in this section, makes a deposit or deposits in such account, or causes a deposit or deposits to be made in such account, such person shall be conclusively presumed to intend to vest in the other a present beneficial interest in each deposit so made, and in the moneys to the credit of the account from time to time, to the end that, upon the death of the first of the 2 persons to die, all the right and title of the person so dying in and to the moneys to the credit of the account on his death, less all proper set-offs and charges, shall, at such death, vest solely and indefeasibly in the survivor.
F. When a time or demand deposit account is maintained in the names of 2 persons in any form described in this section, the right of the survivor of the 2 persons to be vested with the sole and indefeasible title to the moneys to the credit of the account on the death of the first of the 2 persons to die, shall not be denied, abridged, or in anywise affected because such right has not been created by a writing executed in accordance with the law of this State prescribing the requirements to effect a valid testamentary disposition of property." L. 1954, c. 209, § 3.
Appellant contends that the statute works an unconstitutional denial of property. Such characterization of the law is justified, it is asserted, because by the terms of the statute maintenance of an "either or survivor" account establishes a conclusive presumption that the intent of the parties to the account was to vest the survivor with full beneficial interest in and ownership of the amounts remaining therein at the death of the other owner. Utilization of the device of a "conclusive presumption" precludes judicial probing into the true nature of the parties' ...