Estate of Frank, Matter of

• Decision Date: 12 June 1987
• Docket Number: No. 86-1493,86-1493
• Citation: 410 N.W.2d 621,140 Wis.2d 429
• Parties: In the Matter of the ESTATE OF Emmy FRANK, Deceased. Virginia WACHNIAK, Appellant and Cross-Respondent, v. ESTATE OF Emmy FRANK, Arthur T. Frank, Personal Representative, Respondent and Cross-Appellant.
• Court: Wisconsin Court of Appeals

Page 621

410 N.W.2d 621

140 Wis.2d 429

In the Matter of the ESTATE OF Emmy FRANK, Deceased.

Virginia WACHNIAK, Appellant and Cross-Respondent, v. ESTATE OF Emmy FRANK, Arthur T. Frank, Personal

Representative, Respondent and Cross-Appellant.

No. 86-1493.

Court of Appeals of Wisconsin.

Submitted on Briefs April 7, 1987.

Opinion Released June 12, 1987.

Opinion Filed June 12, 1987.

James A. Walt of Walt & Walt, Milwaukee, for appellant and cross-respondent.

Arnold J. Gazinski, Milwaukee, for respondent and cross-appellant.

Before MOSER, P.J., and WEDEMEYER and SULLIVAN, JJ.

SULLIVAN, Judge.

Virginia Wachniak appeals an order to pay half of the proceeds of a joint savings account to the estate of Emmy Frank. Arthur T. Frank, who is Emmy's widower and the estate's personal representative, cross-appeals. We hold that sec. 705.03(1), Stats., precludes the estate's inquiry about funds that Wachniak removed from the account that she held jointly with Emmy. Accordingly, we reverse.

It is undisputed that Emmy opened a sole savings account in 1978. In 1980 Emmy assigned her account to a joint account with Wachniak. Two days before Emmy's death, at Frank's insistence, Wachniak withdrew the entire account, $10,054.41. According to bank records there were no previous withdrawals. Although the trial court made no finding, the record establishes without dispute that deposits came principally from Emmy's social security checks. Frank conceded that none of his paychecks or bank account savings went into this account.

The parties agree that the account was a savings account and a joint account within the definition of sec. 705.01(4), Stats. The trial court held that a joint tenancy with right of survivorship was created between Emmy and Wachniak and that Wachniak's withdrawal severed the account and destroyed rights of survivorship. It ordered Wachniak to pay half of the account, with interest, into the estate.

Frank demands return of the entire proceeds under sec. 861.17(1), Stats., which provides equitable relief to a surviving spouse for a decedent spouse's property arrangements in fraud of the survivor's rights. Wachniak maintains that Frank's claim was barred by the three-year limitation of sec. 861.17(5). Frank filed his individual claim in the estate on October 9, 1985; Emmy died in June 1982. The trial court never tried or decided this issue. The parties stipulated on the record that the only issue for trial was the estate's claim for recovery of the joint account funds. Frank's notice of cross-appeal lies only to the order determining the estate's claim. We thus lack jurisdiction to decide his individual claim.

The application of a statute to a particular set of facts is a question of law. Bitters v. Milcut, Inc., 117 Wis.2d 48, 49, 343 N.W.2d 418, 419 (Ct.App.1983). Thus, we decide the issue independent of the trial court's determination. Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).

Wachniak argues here, as she did in the trial court, that she is entitled to the entire fund under sec. 705.03(1), Stats., which prevents inquiry by anyone into the use of funds withdrawn from a joint account. We agree. Subsection (1) provides lifetime rights between parties to a joint account. It vests the entire account in all joint parties regardless of respective contributions and regardless of the number of signatures required for payment. It further provides that application of sums withdrawn by a party to the account shall not be "subject to inquiry by any person, including any other party to the account." Id. Because the word "inquiry" is not defined in chapter 705, we resort to a dictionary to ascertain its ordinary and accepted meaning. Town of Lafayette v. City of Chippewa Falls, 70 Wis.2d 610, 619, 235 N.W.2d 435, 440 (1975). "Inquiry" is defined as "[t]he action of seeking ... for truth, knowledge, or information concerning something; search, research, investigation, examination." Oxford English Dictionary 323 (compact ed. 1979). The statute bars anyone, therefore, from looking into or questioning a party's application of sums withdrawn from the account during the lifetime of the joint parties.

Section 705.03(1), Stats., signalled a change in the troubled law of joint tenancies in accounts. In Estate of Schley, 271 Wis. 74, 72 N.W.2d 767 (1955), our supreme court held that each joint tenant's interest in certificates of deposit was equal regardless of contribution. Withdrawal of more than an equal share without the co-tenant's consent severed the tenancy. The other tenant's half interest was not destroyed, however, and he was permitted to trace the withdrawn funds into subsequently acquired certificates. Id. at 81, 72 N.W.2d at 770. Estate of...