Brown v. Navarre

• Decision Date: 13 May 1946
• Docket Number: 4815
• Citation: 169 P.2d 85,64 Ariz. 262
• Parties: BROWN et al. v. NAVARRE et al
• Court: Arizona Supreme Court

169 P.2d 85

64 Ariz. 262

BROWN et al. v. NAVARRE et al

No. 4815

Supreme Court of Arizona

May 13, 1946

Appeal from Superior Court, Maricopa County; Howard C. Speakman Judge.

Affirmed.

Kramer Morrison, Roche & Perry, L. V. Rhue, and Chas. D. McCarty all of Phoenix, for appellants.

Lynn M. Laney and Grant Laney, both of Phoenix, for appellees.

Fennemore, Craig, Allen & Bledsoe and Henry W. Allen, all of Phoenix, amici curiae.

Stanford, Chief Justice. La Prade and Morgan, JJ., concur.

OPINION

Stanford, Chief Justice.

We will style the appellants the plaintiffs and appellees, defendants, as they appeared in the trial court.

The two plaintiffs Sue Navarre Brown and Lavage Navarre, are the children of Leonce T. Navarre and Mae Navarre who were divorced. Leonce Navarre received the sum of $ 7,000 in cash in the settlement of the property rights by reason of the divorce. Thereafter he married the defendant Ernestine Navarre. The defendant Mabel Riddle, also known as Mrs. Lawrence Riddle, as we understand the pleadings, is either a sister or sister-in-law of Ernestine Navarre. Leonce T. Navarre was married to the defendant Ernestine Navarre in December, 1943, and Leonce T. Navarre died on October 4, 1944.

Leonce T. Navarre rented from the Phoenix Savings Bank and Trust Company of Phoenix, Arizona, a safety deposit box. Later the lease agreement for the box was amended to include the name of defendant Mabel Riddle. The following language appears in the lease agreement:

"It is hereby declared that all property of every kind, at any time heretofore or hereafter placed in said box, is the joint property of both lessees and upon the death of either passes to the survivor."

Two keys were given by the bank to the box in question, one to Leonce T. Navarre and one to Mabel Riddle. Each had access to the box independently of the other. The box contained the following properties:

Two $ 25 War Savings Bonds issued to Lawrence Leonard Riddle or Mabel G. Riddle.

One $ 250 War Savings Bond issued to Leonce T. Navarre, payable on death to Mrs. Mae Navarre.

A life insurance policy issued to Mabel G. Wolfe, payable to Lawrence Leonard Riddle.

A government life insurance policy issued by the United States to Lawrence Leonard Riddle.

$ 6400 in United States Currency.

$ 3.90 in war savings stamps.

The birth certificate of Lawrence Leonard Riddle.

A watch.

Upon the death of Leonce T. Navarre, Ernestine Navarre applied for letters of administration of his estate and represented in his petition that the value of his estate did not exceed $ 400.

Mabel Riddle executed a power of attorney to Ernestine Navarre authorizing the latter to open the safety deposit box and remove the contents. Apparently the amount of cash on hand in the bank in the safety deposit box at the time of the death of Leonce T. Navarre was $ 6400, and the two plaintiffs herein, as children of said Leonce T. Navarre, claim said sum as a part of their father's estate and that the same should also be subject to administration.

It is the claim of defendants Ernestine Navarre and Mabel Riddle that said sum belongs to Mabel Riddle and that she may give it to Ernestine Navarre, or do as she likes with it.

The complaint in this case was filed in the early part of January, 1945. On the 16th day of January, 1945, defendants filed a motion for summary judgment, and supporting said motion was an affidavit by H. J. Coerver, chairman of the Board of Directors of the Phoenix Savings Bank and Trust Company. Thereafter the trial court rendered its judgment in favor of the defendants. From said judgment the plaintiffs take this appeal.

Plaintiff's sole assignment of error is:

"The trial court erred in granting defendants' motion for summary judgment, and in rendering judgment in their favor thereon, because (1) the facts alleged in the verified complaint, and as supplemented by the affidavit filed in support of the motion for summary judgment, do not entitle the defendants to judgment in their favor, and (2) the intent to create a joint tenancy cannot be determined upon an affidavit in support of a motion for summary judgment."

The said assignment is followed by the following propositions of law:

"1. In order to constitute a joint tenancy, four requisites must exist, namely: The tenants must have one and the same interest; the interest must accrue by one and the same conveyance; they must commence at one and the same time; and the property must be held by one and the same undivided possession. In other words, there must be four unities: (1) Unity of interest, (2) unity of title, (3) unity of time and (4) unity of possession. If anyone of these elements is lacking, the estate will not be one in joint tenancy. Hence, where two or more persons acquire an individual interest in property at different times or by different conveyances, the estate created is not joint tenancy, or the unity of time or the unity of conveyance would be disregarded were this to be called a joint tenancy.

"2. The construction of a lease of a safe deposit box or two or more persons depends upon the facts and circumstances of the particular case. The use of the words 'either or the survivor' does not necessarily create a joint tenancy.

"3. A joint tenancy cannot be created by the owner of property to himself and another because unity of title and unity of time are lacking in the estate created in the two grantees and therefore a tenancy in common results.

"4. A gift of inter vivos first asserted after the death of the alleged donor will be subjected to the closest scrutiny by the courts.

"5. The doctrine of survivorship is not a favorite of the law.

"6. The question of intent of the parties cannot be determined upon motion for summary judgment where their rights or actions are susceptible of more than one interpretation."

Under appellants' proposition of Law No. 1 they cite 14 Am.Jur., P. 81 and quote from the case of Siberell v. Siberell, 214 Cal. 767, 7 P.2d 1003. Appellants also cite the case of McDonough v. Portland Savings Bank, 136 Me. 71, 1 A.2d 768.

From 14 Am.Jur., Cotenancy, Par. 7, we quote:

"In order to constitute a joint tenancy, four requisites must exist, namely: The tenants must have one and the same interest; the interests must accrue by one and the same conveyance; they must commence at one and the same time; and the property must be held by one and the same undivided possession. In other words, there must be four unities: (1) Unity of interest, (2) unity of title, (3) unity of time, and (4) unity of possession. If any one of these elements is lacking, the estate will not be one in joint tenancy. Hence, where two or more persons acquire an individual interest in property at different times or by different conveyances the estate created is not joint tenancy, for the unity of time or the unity of conveyance would be disregarded were this to be a joint tenancy."

Plaintiff's second proposition of law is:

"The construction of a lease of a safe deposit box to two or more persons depends upon the facts and circumstances of the particular case. The use of the words 'either or the survivor' does not necessarily create a joint tenancy."

Plaintiffs quote from our case of McNabb v. Fisher, 38 Ariz. 288, 299 P. 679, 681, which is a case where the administrator McNabb, who brought an action against the son of deceased and The Valley Bank to recover from the bank a balance of deposits made a short time before the death of the deceased. The deposit was made in the name of both deceased and his son and the account was payable to either or the survivor. Following is plaintiffs' quotation from said case:

"As indicated, the intention of the depositor is controlling. If the intention to make a gift is clear, definite, and certain, the courts have not permitted a divided control of the deposit to defeat the gift. Sometimes intention may be gathered from the statement accompanying the deposit and sometimes from the acts of the parties and the attendant circumstances. This vital point must depend upon the particular facts in each case."

Plaintiffs also submit the case of Millman v. Streeter, 66 R.I. 341, 19 A.2d 254, 257. The action was brought in the trial court by Millman, who was the administrator of the heirs of the estate of a Dr. Sheffield Smith. Bertha Streeter claimed the sum of $ 12,000 which was placed by Smith in a lock box rented from the Citizens Safe Deposit Company. The box was hired and payed for by Dr. Smith, but was registered in the names of both Smith and Streeter under the following agreement:

"'We agree to hire and hold Safe No. 7179 in the Citizens Safe Deposit Co.'s vault, as Joint Tenants, the survivor or survivors to have exclusive right of access thereto for any purpose including right to remove contents in case of death of either, and either to have power to appoint a Deputy. Either of the tenants has the right to surrender the safe.

"'We acknowledge a receipt from the Citizens Safe Deposit Company covering rent of within described safe and agree to the rules and regulations as printed thereon and to such reasonable amendments or additions thereto as may be hereafter adopted We also acknowledge receipt of two keys.

"'Signed Bertha E. Streeter

"'Signed Sheffield Smith.'"

We quote from the case, in part:

"She now argues that the money which was thus placed in the box belonged to her because a joint tenancy therein had been created by the above agreement; and that such agreement must be accepted as conclusive evidence of the existence of such tenancy. We cannot determine from the transcript whether this argument was made to the trial justice as clearly as it is now made to us. However, if we assume that it was so made...