The opinion
Rodman, J.,
dissenting. When the bonds in question were purchased, a contract was made with the Government which was binding on the parties. Ervin v. Conn, 225 N.C. 267 ; Watkins v. Shaw, 234 N.C. 96 ; Wright v. McMullan, 249 N.C. 591 . Pertinent Federal regulations provide: “Savings bonds are not transferable and are payable only to the owners named thereon, except as specifically provided in the regulations in this part and then only in the manner and to the extent so provided.” 31 C.F.R. 315.15.
“No judicial determination will be recognized which would give effect to an attempted voluntary transfer inter vivos of a bond or would defeat or impair the rights of survivorship conferred by these regulations upon a surviving co-owner of a savings bond, and all other provisions of this subpart are subject to this restriction.” 31 C.F.R. 315.20.
The regulations contain ample and explicit provisions for surrender or reissue.
When the separation agreement was signed and plaintiff relinquished her legal right to the bonds, because she had furnished a part of the purchase price, she did not foreclose her right to receive the benefits of a contract which her husband might voluntarily maintain for her benefit.
There is no suggestion that plaintiff did anything to prevent her husband from exercising his right to terminate the contract which required payment to her on his death. The separation agreement surrendering plaintiff’s legal right to surrender the bonds and receive payment was an incomplete inter vivos transfer which could have been completed at any time by deceased by a mere surrender of the *615 bonds with a request for payment or reissue. He elected not to exercise his option to terminate plaintiff's contractual rights. Plaintiff’s right to cash the bonds for her benefit was .complete and became a vested right the moment her husband died. That right ought not to be defeated by mandate of this Court based upon some assumed equity. If we are to follow our own decisions and the majority of the courts of this country, the judgment .should be affirmed. My vote is to that effect. If, however, the judgment is not affirmed on the facts found, defendant should not be adjudged the equitable owner and plaintiff a mere trustee until that intent of her deceased husband has been ascertained.
Plaintiff alleges in her pleadings her husbandi intended that she should receive the bonds or proceeds upon his death. To support her allegation she offered evidence tending to show that the affection engendered by more than a quarter of a century of married life did not terminate the moment the separation agreement was executed but continued until the death of the husband. She also offered evidence to show that her husband was informed of his right to surrender the bonds and the effect of his failure to do so.
The court excluded the evidence offered by plaintiff to establish the alleged intent of her husband to vest her with both legal and beneficial ownership of the funds. Some of the evidence offered was incompetent because of its source, but that was not true as to all the evidence; and the evidence was not excluded because of its source but because the court deemed it irrelevant and immaterial as the rights of the parties were fixed by the provisions of the bonds themselves.
The Court effectively disposes of the question of the intent of Ernest M. Tanner by this sentence: “Plaintiff in her brief undertakes to discuss a question which is not supported by any assignment of error based on an exception.” Presumably the quoted sentence is directed) to that portion of appellee’s brief stating: “We agree with the trial court that the Appellee is entitled to the bonds as a matter of law and the intention of the decedent is not material. However, if we are found to be in error we respectfully urge that the decision of the trial court should not be reversed but the case should be sent back for a new trial in order that this evidence of the decedent’s intentions may be considered and appropriate findings made.”
Appellees are not expected to assign errors or take exceptions to judgments favorable to them. When, as here, the court has concluded that the facts found suffice for a judgment establishing plaintiff’s ownership, plaintiff is not required to except to the failure to find ad *616 ditional facts to support the judgment in order to preserve his right to have the essential facts ascertained in accord with the evidence.
If the judgment is not affirmed on the facts found plaintiff is, in my opinion, entitled to have a jury ascertain the intent of deceased. Did he, as alleged by plaintiff, intend that she should in her own right and not as trustee collect the bonds? If such was in fact his intent, the mandate of this Court requiring her to forego that right is not in the furtherance of justice.
Bobbitt and Higgins, J. J., concur in dissent.