Estate of Ashe, Matter of

• Decision Date: 01 April 1988
• Docket Number: No. 16818,16818
• Citation: 114 Idaho 70,753 P.2d 281
• Parties: In the Matter of the ESTATE OF Esther ASHE, aka Esther F. Ashe, Deceased. Sam ASHE, Plaintiff-Appellant, v. Jack HURT, Michael R. Hurt, Allen L. Hurt, Brett W. Hurt, Adam L. Hurt, Kevin L. Hurt, Timothy Hurt, Individuals, and James E. Schiller, In His Capacity As Personal Representative of the Estate of Esther Ashe, Deceased, Defendants- Respondents.
• Court: Idaho Court of Appeals

Page 281

753 P.2d 281

114 Idaho 70

In the Matter of the ESTATE OF Esther ASHE, aka Esther F. Ashe, Deceased.

Sam ASHE, Plaintiff-Appellant, v. Jack HURT, Michael R. Hurt, Allen L. Hurt, Brett W. Hurt, Adam L. Hurt, Kevin L. Hurt, Timothy Hurt, Individuals, and James E. Schiller, In His Capacity As Personal Representative of the Estate of Esther Ashe, Deceased, Defendants- Respondents.

No. 16818.

Court of Appeals of Idaho.

April 1, 1988.

Petition for Review Granted June 9, 1988.

Merlyn W. Clark, Hawley, Troxell, Ennis & Hawley, Boise, for plaintiff-appellant.

Gary L. Morgan, Caldwell, for defendants-respondents.

SMITH, Judge Pro Tem.

This is an appeal from an order made in the administration of a decedent's estate, with respect to the inclusion, and exclusion, of certain property in the estate. The order was entered in the magistrate division in Owyhee County, in the estate of Esther Ashe, deceased. The petition of Sam Ashe, surviving husband of the decedent, to classify a Merrill-Lynch brokerage account as his separate property pursuant to a joint tenancy agreement, and to classify as community property an acreage in Idaho formerly shared with his wife, Esther Ashe, was denied by the magistrate. On appeal, Mr. Ashe asserts the magistrate applied an incorrect standard of proof to the question of joint tenancy. He also contends that as a matter of law a deed to the Idaho property was never delivered. We affirm.

Esther Ashe died on December 26, 1983. She left a surviving spouse, Sam Ashe; a son from a prior marriage, Jack Hurt; and Jack's sons and grandsons. After Jack Hurt was appointed as special administrator, he filed a petition for formal probate of the will of Esther Ashe, and for his appointment as personal representative. Sam Ashe objected, alleging that duress and mental incapacity of the decedent rendered the will invalid. That contest was resolved by a stipulation in which the will was admitted to probate, another person (James Schiller) was appointed as personal representative, and the contested issues were delineated.

Later, Sam Ashe filed a petition seeking an order declaring (1) that a cash management account at Merrill-Lynch, Boise, Idaho, was his property and was not to be included in the estate and (2) that a parcel of real property previously deeded to Jack Hurt was to be included in the estate as community property. Jack Hurt responded, petitioning for a determination that the Merrill-Lynch account was community property and that the real estate in question had been disposed of by the deed and therefore was not a part of the estate. Following trial before a magistrate, the court entered findings of fact and conclusions of law, and an order denying Sam's petition and granting Hurt's petition. The magistrate's decision was affirmed on appeal to the district court.

I BACKGROUND

The facts leading to the controversy in this case are not materially in dispute. Sam and Esther were married in Santa Rosa, California, in 1938. Esther's son by a prior marriage, Jack Hurt, was then about fourteen years of age. He lived with Sam and Esther for about four years after the marriage. Sam and Esther had no children during their marriage.

Sam and Esther accumulated considerable wealth during their marriage. Sam "bucked" the oil fields for a few years and then started speculating in houses, buying and building in Bakersfield, California and the environs. They each inherited some assets from their respective families. Sam gave real estate he inherited to his family members. Securities inherited by Esther in 1960 in the amount of about $19,000 were either sold or reinvested by the couple. Esther was an osteopath, but apparently did not practice her profession. Accordingly, it is apparent from the record that the wealth of Sam and Esther came from Sam's expertise as a speculative builder, from their investments and from the construction business.

The couple established a joint tenancy stock brokerage account at the E.F. Hutton office in Bakersfield in 1963. According to Mr. Ashe's testimony, after Esther had attended a businesswomen's meeting, she took Sam to confer with an investment advisor who had aroused her interest in the manner of making investments. Sam recalled that the investment advisor told them there were two ways to avoid inheritance taxes, i.e., to give the property away or to spend it. The investment advisor also As a result of this advice and other contacts, Sam deduced that in joint tenancy with right of survivorship, two people own the property, and if one survives the other, the survivor takes the ownership of the total property. He also understood that one cannot "will away" property that is held in joint tenancy.

[114 Idaho 72] talked to Sam and Esther about holding property in joint tenancy with right of survivorship.

Thus, according to Sam's understanding of the meaning of joint tenancy, Sam and Esther accumulated their wealth in joint tenancy with right of survivorship. However, the evidence does not clearly establish whether Esther fully understood all of the ramifications of joint tenancy with right of survivorship. It does appear that Esther for years incorrectly believed that a married person could not make a will at all without the consent of the other spouse. So from time to time during the marriage, Esther asked Sam about making a will. Sam would respond "lets get together and see what we want." However, they never did get together in the making of a will.

At some time just prior to 1972, Sam became interested in residing in Idaho. In 1972 and 1973, he and Esther liquidated their real estate holdings in California and moved to the vicinity of Marsing, Idaho. The E.F. Hutton brokerage account was left in California. They acquired a home and acreage in the Marsing area which came to be known to them as the "Home Place."

While Sam and Esther lived in the Marsing area, they met people, made friends and became a part of the community. Esther continued to be concerned about the disposition of their estate, as was Sam. In April of 1981, Sam gave some Owyhee County lots to his brother, Tillman Ashe. Esther reluctantly joined in this conveyance. That same month, Sam joined with Esther in deeding the Home Place to Esther and Jack. The deed was delivered to Esther by Sam with the admonition that the deed should not be recorded. Jack was not told about this deed at that time. Sam and Esther contemplated they would have the use of the Home Place so long as they needed it. However, no language reserving a life estate was contained in this deed. Jack did not become aware of this deed until October, 1981.

In May, 1981, Jack Hurt moved from Arkansas to Idaho. Jack testified that his mother had invited him to move to Marsing. Sam testified that, prior to this move, Esther asked Sam if he wanted Jack and Ina, Jack's wife, to move to Marsing. Sam did not want them to move to Idaho, but the next thing he knew they had moved in. Actually, Jack and Ina lived in Ina's travel trailer parked on the Home Place. After that Sam felt like a stranger in his own home. Following Jack and Ina's move onto the property, all of the parties were living "pretty close" together and, according to Sam, Jack was showing his mother great "familial" affection for the first time. It is clear from Sam's deposition that he thought Jack was trying to ingratiate himself, particularly with Esther, in order to gain from the newly "cultivated" close relationship.

Later in September, 1981, because of the way Jack was acting, Sam felt uncomfortable. He decided to take a trip to Europe. He stayed about thirty days. He then returned to the United States having decided not to return home to Marsing. Sam was concerned Esther might cash out the brokerage account in California and "leave him in the cold." He decided to take the money himself. He cashed in the E.F. Hutton account, and obtained $329,000 in checks. He then returned to Marsing, found $28,000 in his bank account there, put $4,000 with it, obtained cashier's checks amounting to $325,000 and took the cashier's checks with him to San Francisco where he opened a new brokerage account in his own name with Merrill-Lynch. The cashier's checks, two in number, were dated October 29, 1981. The Merrill-Lynch account was established on or about the next business day.

On October 30, 1981, Esther and Jack consulted with an attorney, Terry Coffin. Esther had learned that Sam was back from Europe and that he had cashed in the On November 2, 1981, the divorce action was filed. Also, the deed of the Home Place to Jack and Esther was recorded. About the same time, David Stecher, another attorney in the same firm with Terry Coffin, was instructed by Esther to prepare a will for her. She executed the will on November 5, 1981. The will gave all of her property to Jack, his children and his grandchildren. This will was the one later admitted, by stipulation, to probate in this case.

[114 Idaho 73] E.F. Hutton account. She also was concerned about the state of Sam's health. She had heard he was ill. She believed Sam was going to take the money to Arden Woods Benevolent Society in San Francisco and use those funds to acquire a place to live for the rest of his life. She wanted Terry Coffin to make sure her share of the money was protected. After discussing several possibilities, Coffin recommended divorce proceedings be filed so she could obtain a restraining order to tie up the money.

Toward the latter part of November, 1981, Sam returned to Marsing to contest the divorce or at least the settlement thereon. While in Marsing Sam and Esther reconciled at the urging of a friend, John Larsen.

In January, 1982, while Sam and Esther were traveling in California, they went to San Francisco where Sam transferred the Merrill-Lynch account to himself and Esther as joint tenants with right of survivorship. Sam and Esther were still residing at the Home Place in Marsing. In March, 1982,...