Cooke's Estate, In re

• Decision Date: 17 December 1973
• Docket Number: No. 10839,10839
• Citation: 96 Idaho 48,524 P.2d 176
• Parties: In the Matter of the ESTATE of Nelson H. COOKE, Deceased. Raymond T. GREENE, Jr., Administrator, Plaintiff-Respondent and Cross-Appellant, v. Cliff COOKE and Kathleen I. Foder, Defendants-Appellants and Cross-Respondents.
• Court: Idaho Supreme Court

Page 176

524 P.2d 176

96 Idaho 48

In the Matter of the ESTATE of Nelson H. COOKE, Deceased.

Raymond T. GREENE, Jr., Administrator, Plaintiff-Respondent and Cross-Appellant, v. Cliff COOKE and Kathleen I. Foder, Defendants-Appellants and Cross-Respondents.

No. 10839.

Supreme Court of Idaho.

Dec. 17, 1973.

On Rehearing July 8, 1974.

Stephen Bistline, Sandpoint, for defendants-appellants and cross-respondents

Raymond T. Greene, Jr., James E. Hunt, Greene & Hunt, Sandpoint, for plaintiff-respondent and cross-appellant.

DONALDSON, Chief Justice.

Nelson H. Cooke (hereinafter referred to as the testator) died in California on February 20, 1966, leaving a holographic will which reads as follows:

'3 February 1965

'I Nelson H. Cooke the undersigned below does hereby declare this to be my Last Will & Testament to wit.

'I give devise and bequeath to my wife, Vera Darlene all of the property of which I die possessed, and request that no further probate of my estate be made other than that prescribed by law.

'Should any other person make claim to my estate I give to such person the sum of one dollar ($1.00).

'Nelson H. Cooke

210 Rosa Avenue

San Clemente, Calif.'

Upon the petition of the testator's wife, Vera Darlene Cooke, his will was admitted to probate in the probate court for Bonner County, Idaho. Raymond T. Greene was subsequently appointed administrator with will annexed. After the administrator had petitioned for distribution according to the terms of the will, objections were filed by Cliff Cooke and Kathleen I. Foder, the testator's children by a former marriage. From a probate court determination, the matter was appealed to the district court, which tried the issues do novo without a jury; both sides-the administrator on the one hand and the testator's children on the other-appeal to this Court from the decision rendered by the district court.

The testator and Vera Darlene Cooke were married on March 14, 1964. Soon after, they opened a joint checking account with right of survivorship at the San Clemente office of the United California At the time of the marriage, the testator was the proprietor of a business known as San Clemente Sportfishing, Inc. In August of 1965, the Cookes took a trip to northern Idaho to search for real property suitable for a trailer park or a marina On August 10, 1965, the testator wrote out a check for $500 on the United California joint checking account, as earnest money on a parcel of real property located in Bonner County. On the same date, the testator and his wife opened up a joint checking account with right of survivorship at the Sandpoint office of the Idaho First National Bank; deposited at that time was a check in the amount of $6,925 drawn on the account of San Clemente Sportfishing, Inc. The Cookes returned to California, where the testator sold his interest in San Clemente Sportfishing, Inc.; the proceeds of sale, amounting to $55,000, were deposited in the couple's joint checking account at the United California Bank.

Bank. Income received by both the testator and his wife was deposited into this account, which usually had an operating balance of about $1,000.

Around the first of September, 1965, the Cookes moved to Idaho, intending to locate permanently in Bonner County. On September 7, 1965, two checks totaling $50,050, were deposited into the Cookes' account at the Idaho First National Bank. One of the checks, in the amount of $50, was drawn in favor of the testator's wife in partial payment of a debt owed to her under a deed of trust acquired prior to her marriage to the decedent. The other check, in the amount of $50,000, was drawn by the testator on the couple's joint account at the United California Bank in San Clemente.

The agreed purchase price for the Idaho property was $25,000 plus interest. Except for the initial $500 payment, all of the purchase money paid for the property consisted of funds which had been deposited by the Cookes in the Idaho First National Bank checking account. Two payments-one of $6,875 and one of $4,752-were made prior to the testator's death in February of 1966. A third and final payment, in full satisfaction of the outstanding balance owing, was made by the testator's wife in April, 1966; although her check for $13,463 was drawn on an Alhambra, California, bank, she admits that this payment consisted of funds transferred by her from the Idaho First National Bank account.

On the date of the testator's death, there remained about $25,000 in the Idaho First National Bank account and about $5,000 in the United California account. During their two years of marriage, the testator's wife deposited into these accounts about $7,000 of 'money from her own sources' (since this consists in part of her wages during marriage, at least some of this amount would have the status of community income).

When the balance of the down payment on the real property was made on September 8, 1965, the Cookes received a warranty deed which conveyed the property to 'Nelson H. Cooke and Vera Darlene Cooke, husband and wife.' However, after the deed had been signed by the grantors and delivered, the testator interlineated the words 'with sole ownership to the survivor' after the words 'husband and wife' appearing in said deed. According to the real estate broker who handled the sale, the testator made it very clear that in case of his death, he wanted the property to go to his wife by right of survivorship.

In January, 1966, the Cookes decided that because of the severe winters prevalent in northern Idaho, it would be impossible for them to continue to live there. They therefore left Idaho, intending to establish a residence somewhere along the Colorado River in either Nevada or Arizona. They were still searching for a piece of property along the river when Nelson Cooke died during a one-day business trip to California.

In the district court, the testator's children claimed to be pretermitted and therefore entitled to share in their father's estate Concluding that the testator's omission to provide for his children was not intentional, the district court decided that they were pretermitted and therefore entitled to an intestate share according to I.C. § 14-320.

as provided in I.C. § 14-320 (prior to its repeal in 1971); they further contended that the Bonner County real property and the funds remaining in the joint bank accounts were the testator's separate property and that they are entitled to two-thirds of the estate. His widow, on the other hand, contended that both the bank account and the real estate had been held in joint tenancy and, therefore, both passed to her by right of survivorship upon her husband's death.

Although the district court found that the testator had deposited his separate property in the joint accounts with the intent of conferring a gift upon his wife, it nevertheless concluded that the real property purchased with these joint tenancy funds was tenancy in common property. The court reasoned that the non-joint-tenancy form of the conveying deed was controlling and that the decedent grantee could not unilaterally alter the form of that deed by interlineating the words 'with sole ownership to the survivor.' The funds remaining in the joint accounts at the testator's death were awarded to his widow by right of survivorship.

I

Prior to its repeal in 1971, I.C. § 14-320 read in pertinent part as follows:

'When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate * * *.' ¹ Emphasis added.

The district court granted the testator's children an intestate share under I.C. § 14-320 because it concluded that the testator did not intentionally omit to provide for them in his will. The cross-appellant administrator challenges this conclusion, submitting that (1) the intentional nature of the omission need not be found on the face of the will but rather may be shown by extrinsic evidence, and (2) the testator's intent to omit his children is evinced by his gift of one dollar to 'any other person' making a claim to his estate.

The first question raised was noticed but not decided in the case of In re Fell's Estate, 70 Idaho 399, 402, 219 P.2d 941 (1950), where no extrinsic evidence was offered at trial and where both parties relied upon the face of the will. The court said, 'Therefore, we are not called upon to determine whether, under the provisions of Section 14-320, I.C., extrinsic evidence can be introduced to show the intention of the testator. On this question the authorities are divided.' Id.

An annotation on point summarizes in the following manner the cases decided under statutes like I.C. § 14-320:

'Under statutes providing that an omitted child, or issue of a deceased child, should be entitled to a portion of the testator's estate, 'unless it appears that such omission was intentional,' the courts, except in California and Oklahoma, have uniformly held or recognized that extrinsic evidence was admissible to prove that the testator intended to disinherit an omitted child.' Annot., 88 A.L.R.2d 616, 629 (1963).

Cited in support of the alleged uniformity of holdings are cases from only six states: Maine, Montana, Nevada, North Dakota, South Dakota, and Utah. Id. at 629-630 (1963, Later Case Service 1968, 1972). We are more impressed, however, by the rationale supporting the minority rule, as 'It may be stated as a general proposition, not open to controversy, that wills, like other written instruments, cannot be varied, altered, added to, or contradicted by parol evidence. * * *

set forth in the early landmark California case of In re Estate of Garraud, 35 Cal. 336, 340-342 (1868) (decided at a time when California's statute, since altered, was substantially identical to I.C. § 14-320):

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