Bogert's Estate, In re
| Decision Date | 06 February 1975 |
| Docket Number | No. 11624,11624 |
| Citation | 96 Idaho 522,531 P.2d 1167 |
| Parties | In the Matter of the ESTATE of Ruth D. BOGERT, Deceased. Rozalys B. SMITH and E. A. 'Dee' Bogert, personal representatives, Appellants, v. Edmund A. BOGERT, Sr., Respondent. |
| Court | Idaho Supreme Court |
Louis H. Cosho of Clemons, Cosho Humphrey & Samuelsen, Boise, for appellants.
Thomas B. Campion of Kneeland, Laggis & Korb, Ketchum, for respondent.
This case presents the question of the status of securities which were acquired with community property and which were held by a husband and wife in a stock account with a brokerage firm, which account was designated as a joint tenancy account with right of survivorship.
Decedent Ruth D. Bogert, who was married to Edmund A. Bogert, Sr., died testate on November 22, 1972. In her will she devised all of her property to the Bogerts' three children. Two of those children survived her and they, appellants Rozalys B. Smith and E. A. 'Dee' Bogert, were designated the personal representatives of her estate. They claim that the stock held in a joint tenancy account with Birr, Wilson & Co., Inc., a stock brokerage firm in Boise, Idaho, worth approximately $354,000.00, was in fact community property, and thus one half of those stocks should be included in the probate estate. Respondent, Edmund A. Bogert, Sr., the decedent's husband, claims that he and his wife held the stocks in the Birr, Wilson account as joint tenants with right of survivorship, and thus those stocks passed directly to him, outside of the will, by right of survivorship and should be excluded from the decedent's probate estate.
Trial was held in the Magistrates Division of the district court, and in that trial Edmund A. Bogert, Sr., was the only witness. In support of his joint tenancy claim he testified as follows:
'Q. When, if you know, was that account opened with Birr and Wilson?
'COURT: You may proceed again, ask your last question.
'A. I had the account with Walston and Company and I changed it to Birr, Wilson.
'Q. And at the time you changed it did you, well, let me strike that, there is attached to the Petition a copy of a joint tenancy agreement between you and Mrs. Bogert and Birr, Wilson. Did you execute that at the time you opened this account?
'A. Right about that time.
'Q. Did you have a joint tenancy agreement with brokers prior to that time?
'A. Yes, and Rush Company too. Mrs. Bogert and I had everything jointly owned together.
There was no other testimony relative to the intent of the parties regarding the ownership of this $354,000 account in the event of death of one of them. A copy of the joint tenancy stock account was attached to the pleadings and was part of the record before the magistrate. 2
The personal representatives of the estate introduced no evidence at that hearing. The magistrate ruled that while spouses could transmute community property into joint tenancy with right of survivorship, the intention to so transmute the property must be shown by clear and convincing evidence. The magistrate concluded that the evidence introduced in support of that transmutation was not clear and convincing, and therefore the stocks were the community property of the decedent and Edmund A. Bogert, Sr., and ordered Edmund A. Bogert, Sr., to turn over one half of the community property stocks to the personal representatives of the decedent's estate.
Edmund A. Bogert, Sr., appealed to the district court which, reviewing the transcript of proceedings before the magistrate ruled that '(s)ecurities on deposit in a joint tenancy brokerage account belong entirely to the surviving joint tenant unless there is clear and convincing evidence of a contrary intent at the time the account was created.' Having reversed the burden of proof from that applied by the magistrate, and finding no evidence of a 'contrary intent,' the district court held that the securities were in fact held in joint tenancy with the right of survivorship, and ordered the personal representatives to turn the securities back over to Edmund A. Bogert, Sr. The personal representatives have appealed the ruling of the district court.
This Court has previously decided a number of cases involving the question of ownership of property allegedly held in joint tenancy. In re Estate of Cooke, 96 Idaho 48, 524 P.2d 176 (1974); Vaughan v. First Federal Savings & Loan Association, 85 Idaho 266, 378 P.2d 820 (1963); In re Estate of Chase, 82 Idaho 1, 348 P.2d 473 (1960); Idaho First National Bank v. First National Bank of Caldwell (the Griffiths case), 81 Idaho 285, 340 P.2d 1094 (1959); Shurrum v. Watts, 80 Idaho 44, 324 P.2d 380 (1958); Gray v. Gray, 78 Idaho 439, 304 P.2d 650 (1956). In addition, the Uniform Probate Code, I.C. § 15-1-101 et seq., was enacted, effective July 1, 1972, and since the decedent in this case died after that date the first question which we must decide is whether or not I.C. § 15-6-104(a) is applicable to this case. That section provides:
3
The first question which must be decided is whether or not I.C. § 15-6-104 is applicable to the stock account in this case. While it is unclear from the transcript in the matter whether or not the stocks which are the subject matter of this proceeding were held jointly in the name of the decedent and her husband, or whether they were held by the brokerage firm in its name, it is our view that there was no 'account' as that term is defined in § 15-6-101 and used in § 15-6-104. § 15-6-101 defines an account as follows:
"Account' means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share account and other like arrangement.'
In other for there to be an 'account' there must be a 'deposit of funds between a depositor and a financial institution . . ..' 4 A stock brokerage firm which is handling a brokerage account for a person investing in stocks cannot be fairly construed to be a 'financial institution' and the investor a 'depositor' of funds. In our view, investments in stocks through the means of a stock broker, regardless of whether or not the securities are held in the name of the investor or the stock brokerage firm, are not the 'deposit of funds' in a 'financial institution' contemplated in the definition of 'account' in § 15-6-101(1).
Having concluded that I.C. § 15-6-104 is inapplicable to the case before us, we are presented with the task of determining the applicable law. If the Bogerts had transmuted the securities in the account from community property to property owned in joint tenancy with a right of survivorship, each would have made a gift to the other of his or her interest in the community property, including the right to devise one half of the community property at death, and would have received as a gift a separate property interest in joint tenancy. In re Estate of Cooke, supra. In past cases we have required that the intent to make a gift under similar circumstances be shown by clear and convincing evidence. In the case of In re Estate of a Cooke, supra, we held that the intent of a decedent-depositor to a joint bank account to have made a gift must be proved by clear and convincing evidence. In Vaughan v. First Federal Savings & Loan Association, supra, we held that the intent to establish a savings account (Tot...
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