Estate of Ingram, Matter of

• Citation: 1994 OK 51,874 P.2d 1282
• Decision Date: 17 May 1994
• Docket Number: No. 79637,79637
• Parties: In the Matter of the ESTATE OF Lola Jane INGRAM, Deceased. Shirley GAZALSKI, Individually and in Her Capacity As Personal Representative of the Estate of Lola Jane Ingram, Appellant, v. Norma GOSS and Doyle Ingram, Appellees.
• Court: Supreme Court of Oklahoma

Page 1282

874 P.2d 1282

1994 OK 51

In the Matter of the ESTATE OF Lola Jane INGRAM, Deceased.

Shirley GAZALSKI, Individually and in Her Capacity As

Personal Representative of the Estate of Lola Jane

Ingram, Appellant, v. Norma GOSS and Doyle Ingram, Appellees.

No. 79637.

Supreme Court of Oklahoma.

May 17, 1994.

Certiorari to the Oklahoma Court of Appeals, Division III.

Certiorari granted to review the Court of Appeals' opinion which affirmed the District Court of Okmulgee Co., Hon. Billy L. Martin presiding. The issue presented is whether certificates of deposit and bank accounts were in joint tenancy. Because of the express language on the face of the certificates of deposit, we hold that the certificates were in joint tenancy. A joint tenancy is not defeated by a later will which did not take effect until death. As for the bank accounts, there is insufficient evidence to show the existence of a joint tenancy. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Donald W. Henson, Okmulgee, for appellant.

Ron Wright, Muskogee, for appellees.

SUMMERS, Justice:

The first question is whether a will severs a valid joint tenancy so that jointly held property passes through the estate rather than to the surviving joint tenant. We hold that it does not. The second question is whether bank accounts described as "joint", but lacking, as far as we can find, any language of "survivorship", create a valid joint tenancy. We find that under the facts of this case they do not.

Lola Jane Ingram established a savings account and a checking account, and on each of these accounts named as a co-signor Shirley Gazalski, one of her daughters. Ingram later created three certificates of deposit, each of which named Gazalski as a co-tenant in a joint tenancy relationship. The CD's specifically established joint tenancy with the right of survivorship.

Four days prior to her death, at the request of her other children, Ingram, the mother, wrote a holographic will which stated that she wanted her entire estate "including bank account and CD" divided equally among her four children: Doyle Ingram, Shirley Gazalski, Zeda Jenkins and Norma Goss. The will appointed Gazalski as the personal representative of Ingram's estate. After the mother's death, Gazalski kept the money from the checking and savings accounts as well as the three certificates of deposit. She sold mother's house and car and distributed the proceeds equally among the four children.

The other three children objected to the final accounting presented by Gazalski, arguing that their mother's intent was to include the bank accounts and the certificates of On cross examination Gazalski agreed that she did not receive the interest from the certificates of deposit, and that the interest had been claimed, for income tax purposes, by her mother. She also testified that she contributed none of the money held in the accounts or the CD's. Gazalski testified that she never used any of the funds in the bank accounts for her personal benefit, although her mother told her that she use could the money if she so chose.

deposit in the estate. At the hearing before the trial court, Gazalski, who had cared for her mother on a day to day basis, testified that her mother intended for the bank accounts and the certificates of deposit to be hers. She stated that her mother told her that the proceeds from the sale of the house and car were to be divided, but that the bank accounts and certificates of deposit were in a joint tenancy so that Gazalski would receive them.

Norma Goss testified that her mother told her that Gazalski's name was on the accounts so that someone would be able to pay her bills. Goss also stated that Ingram never talked to her about the certificates of deposit or the bank accounts, but did state that she wanted "everything" divided among her four children. Goss did not know what Ingram intended to be included in "everything."

The trial court held that the bank accounts and the certificates of deposit were to be included in the estate, and were not the property of Gazalski as a joint tenant. The Court of Appeals, Division III, affirmed, stating that (1) there was no express language of joint tenancy in the documentation of the bank accounts and (2) that there was sufficient evidence to support the trial court's ruling with regard to the certificates of deposit. We reverse and remand in part, directing that certificates of deposit not be included as property of the estate. As to the bank accounts, we affirm.

THE CERTIFICATES OF DEPOSIT

The three certificates of deposit established by Ingram totalled $63,000.00 at the time of her death. The language on the face of the certificates specifically stated that the certificates were payable to "said depositor(s), or if more than one depositor as joint tenants with the right of survivorship." Both Ingram's and Gazalski's names appeared on the face of all three certificates.

A joint tenancy can be created in two ways: (1) By express language in the instrument, as contemplated by 60 O.S.1991 § 74, AND (2)¹ by actions of the party creating the joint tenancy which show an intention to create the essential elements of joint ownership and survivorship. Raney v. Diehl, 482 P.2d 585, 590 (Okla.1971); Dyer v. Vann, 359 P.2d 1061 (Okla.1961). When the owner of property transfers funds or property to herself and another by a written agreement which meets the requirements of a joint tenancy, a joint tenancy is created with the right of survivorship. Raney, 482 P.2d at 590; Barton v. Hooker, 283 P.2d 514 (Okla.1955).

The distinguishing characteristic of joint tenancy is the right of survivorship. Clovis v. Clovis, 460 P.2d 878, 881 (Okla.1969). Mercer v. Mercer, 365 P.2d 554 (Okla.1961); See also Shackelton v. Sherrard, 385 P.2d 898, 901 (Okla.1963). "A joint tenancy simply creates a present estate which, absent severance of the tenancy during the life of both tenants, assures the surviving joint tenant absolute ownership of the whole subject matter of the joint tenancy." Clovis, 460 P.2d at 882.

In Alexander v. Alexander, 538 P.2d 200 (Okla.1975), we analyzed certificates of deposit appearing to be in joint tenancy. The deceased had established certificates of deposit in his name and the name of his niece In the present case, the language on the face of the certificates established a joint tenancy. Both parties were listed as joint tenants, and the certificate provided that the parties had the right of survivorship. Children urge that even if there was a joint tenancy, it was severed by Ingram's subsequently executed will. In the alternative, they urge by implication that the joint tenancy was created only for convenience, and was more in the nature of a constructive trust, with the intended beneficiaries being all four children.

                and nephew.  The certificates specifically stated on the face of the documents that they were held "as joint tenants and not as tenants in common with right of survivorship."  Id. at 201.   The wife of the deceased urged that the certificates were merely incomplete gifts to the niece and nephew, or in the alternative, that the certificates were only a constructive trust.  We disagreed, stating that there was no doubt that the certificate's language created a joint tenancy in accordance with the statute.  The Court further stated that there was no indication that the deceased intended a constructive trust.  Rather, the express language on the face of the documents showed his intent to be the creation of a joint tenancy.  Id. at 203
                

As for their first argument, we do not agree that the joint tenancy was severed by the will. A joint tenancy can be severed, but only during the lifetime of the tenant who would sever. Littlefield v. Roberts, 448 P.2d 851, 855 (Okla.1969); Shackelton, 385 P.2d at 901. The reason the argument fails is that at the death of one tenant, the title to the property passes by operation of law to the surviving tenant. Littlefield, 448 P.2d at 855.

In Littlefield, property was placed in joint tenancy by a deed conveying to a mother and one of her daughters. The mother's will, executed after the joint tenancy deed, stated that the property subject to the deed was to be split among her children. The will even stated that the deed was one of convenience; however, no such language appeared in the deed itself. While we agreed that the will may show that the mother's intent changed after the execution of the deed, the will did not operate as a severance, because it had no effect until her death. A joint tenancy cannot be severed after the death of the party who would sever. Thus, the daughter, as the surviving joint tenant, was the owner of the property.

In Shackelton, 385 P.2d at 901, we held that the acts of one of the joint tenants operated to sever the joint tenancy. There, land was placed in a joint tenancy between a husband and wife. Later, the husband deeded his part of the land to his son. We held that the second deed of the husband was inconsistent with a joint tenancy, and destroyed the required unity of interest. Since the inconsistent act occurred during the lifetime of the husband, a severance of the joint tenancy resulted.

Likewise, in Clovis v. Clovis, 460 P.2d at 882, the mother executed a joint tenancy deed, naming herself and her son as joint tenants. The deed was executed under fraudulent circumstances, and the mother then attempted to cancel the joint tenancy. The court held that the joint tenancy was severed because a joint tenancy can be severed during the lifetime of the tenant. Id.

Our case is controlled by Alexander and Littlefield. Unlike Shackelton and Clovis, here the mother's act claimed as one of severance was the execution of a will which did not take effect until her death. Thus no severance was accomplished during her lifetime. While the will may be evidence of a changed intent, no act occurred prior to her death which terminated the joint tenancies as...