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STATE OF MICHIGAN
COURT OF APPEALS


DAVID BURKACKI, Personal Representative of the Estate of EMILY L. BARR, Petitioner-Appellee/CrossAppellant, v JAMES BARR, Trustee for the ALEXANDER M. BARR TRUST, Respondent-Appellant/CrossAppellee.

UNPUBLISHED June 15, 2006

No. 266669 Oakland Probate Court LC No. 04-293771-CZ

Before: Smolenski, P.J., and Hoekstra and Murray, JJ. PER CURIAM. Respondent appeals as of right from the probate court's opinion and order granting summary disposition in favor of petitioner pursuant to MCR 2.116(C)(10). The court directed that assets from a Morgan Stanley Dean Witter (MSDW) brokerage account owned by Alexander and Emily Barr, as joint tenants with rights of survivorship, be returned to petitioner, the personal representative of Emily Barr's estate, because Emily survived Alexander and therefore acquired all rights to the assets upon Alexander's death. Petitioner cross appeals the trial court's denial of sanctions pursuant to MCR 2.114. We affirm. Respondent, Trustee for the Alexander M. Barr Trust, argues that the trial court erred in determining that the brokerage account assets belonged to Emily Barr rather than Alexander Barr's trust. As this Court stated in O'Donnell v Garasic, 259 Mich App 569, 572-573; 676 NW2d 213 (2003): A trial court's grant or denial of summary disposition under MCR 2.116(C)(10) is reviewed de novo on appeal. A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim. Affidavits, pleadings, depositions, admissions, and documentary evidence are considered in reviewing a motion for summary disposition pursuant to MCR 2.116(C)(10), and the evidence is viewed in the light most favorable to the party opposing the motion. Summary disposition is proper under MCR 2.116(C)(10) if -1-


the documentary evidence shows that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. [Internal quotations and citations omitted.] In this case, Alexander and Emily Barr opened a brokerage account with MSDW pursuant to a "Joint Account Agreement with Right of Survivorship," which provided: It is the express intention of the undersigned to create an estate or account as joint tenants with rights of survivorship and not as tenants in common. In the event of death of either or any of the undersigned, the entire interest in the joint account shall be vested in the survivor or vested in the survivors on the same terms and conditions as theretofore held, without in any event releasing the decedent's estate from the liability provide for in the next preceding paragraph. Because this document is unambiguous, it must be enforced according to its terms. Burkhardt v Bailey, 260 Mich App 636, 656; 680 NW2d 453 (2004). The agreement expressly provides that Alexander and Emily Barr held the brokerage account as joint tenants with rights of survivorship. Thus, the account automatically passed to Emily, as the survivor, when Alexander died on March 14, 2002. Cf. In re VanConett Estate, 262 Mich App 660, 667-668; 687 NW2d 167 (2004), lv gtd 474 Mich 999 (2006); see also 1 Cameron, Michigan Real Property Law (2d ed),

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