Hartt v. Brimmer

• Decision Date: 13 September 1955
• Docket Number: No. 2680,2680
• Parties: Pearl HARTT, Plaintiff and Appellant, v. Clarence A. BRIMMER and Robert Bible, Executors of the Estate of John K. Hartt, Deceased, Defendants and Respondents.
• Court: Wyoming Supreme Court

Page 638

287 P.2d 638

74 Wyo. 338

Pearl HARTT, Plaintiff and Appellant, v. Clarence A. BRIMMER and Robert Bible, Executors of the Estate of John K. Hartt, Deceased, Defendants and Respondents.

No. 2680.

Supreme Court of Wyoming.

Sept. 13, 1955.

Pence & Millett, Laramie, Senior & Senior, Salt Lake City, Utah, Francis M. Gibbons (of Senior & Senior), Salt Lake City, Utah, for appellant.

Clarence A. Brimmer, Jr., Rawlins, Wyo., Lathrop & Lathrop, Cheyenne, Carleton A. Lathrop, Cheyenne, and Clarence A. Brimmer, Jr., Rawlins, for respondents.

BLUME, Justice.

The action herein was commenced on November 21, 1953. An amended petition was filed on March 10, 1954, in which the plaintiff alleged substantially the following facts. Plaintiff is the widow of John K. Hartt, deceased; that deceased died on or about July 14, 1952, leaving a last will and testament dated March 14, 1951; that on August 21, 1952, the will was duly admitted to probate in the district court of Carbon county, Wyoming, and the respondents herein were appointed executors and have duly qualified; that for many years prior to December 6, 1951, decedent leased in his sole name safe deposit box No. 301 from the First National Bank of Rawlins, Wyoming; that on or about December 6, 1951, decedent and the plaintiff herein became colessees of said deposit box; that the contract with the bank by these co-lessees was as follows:

'1. No person other than the Lessee, his duly appointed deputy as shown by the records of the Safe Deposit Department or the legal representative of the Lessee in the event of his death, incompetency, insolvency or other disability, shall have access to the box, except as hereinafter expressly stipulated.

'2. The Lessor, having no control or possession of a Box will be liable only for ordinary diligence in preventing the opening of it by an unauthorized person, and shall not in any event be liable for the loss or alleged loss of any of its contents. The opening of a box by an unauthorized person shall not be inferred from the loss of any of its contents.

'3. The Lessor will retain no keys to any rented box and will at all times remain wholly ignorant as to its contents. Upon surrender of a Box both keys must be returned to the Lessor. The cost of replacing lost or broken keys and forcing open boxes shall be paid by the Lessee.

'4. All rentals are payable yearly in advance. In event the lease of the box is not renewed within three months after expiration of the term paid for, the Lessor reserves the right to refuse admission thereto and may, at the expense of the Lessee and without notice, open same and hold the contents thereof in such manner as it may deem best until all accrued rent and charges are paid; in which event all liability of the Lessor in relation to such contents shall cease immediately and absolutely upon the opening of the Box. The Lessor reserves the right to terminate, at any time, the lease and possession of a Box upon notice mailed to the Lessee at this last given address or otherwise given him, his deputy or legal representative in which event the prorata unearned portion of the rental paid will be refunded.

'5. In event of the death of the Lessee or his deputy the survivor shall notify the Lessor immediately and access shall not be allowed to the box until the Lessor has been released from liability under the provisions of the Inheritance Tax Laws of the United States and the State in which this Lessor is located.

'6. Access to a Box allowed only during the regular business hours of the Safe Deposit Dept.

'/s/ James Engstrom, Witness.

'The undersigned in consideration of the letting of a Safe Deposit Box by the First National Bank of Rawlins, hereby acknowledges receipt of two keys thereto and certifies that he (they) has (have) read and approved the rules governing Safe Deposit Boxes, and also agrees to pay rental for said box annually in advance and to accept said lease and use of said box in accordance with the rules of the Bank.

'/s/ John K. Hartt, Lessee Deceased

7-14-52

Mrs. John K. Hartt, Lessee'

Beneath the signatures of the parties was stamped the following:

'As joint tenants with right of survivorship and not as tenants in common.'

In the safe deposit box were decedent's notes and certificates of shares of stock in various companies including 1000 shares of General Motors Corporation and 1000 shares of Swift and Company, all in the name of decedent.

The amended petition further alleges that on December 6, 1951, the decedent and plaintiff became joint tenants in the safe deposit box with the right of survivorship; that defendants in their capacity as executors have filed an inventory, including the stock certificates and notes contained in the safe deposit box and removed these notes and certificates from the box and claim that they are the property of the estate of John K. Hartt, deceased; that plaintiff has made demand on the defendants for the property but they have refused and have failed to deliver same to the plaintiff. Plaintiff accordingly prayed that she be declared to be the sole owner of the certificates and notes contained in the deposit box and that defendants be required to deliver them to her.

Defendants filed an answer admitting that they are the executors of the estate of John K. Hartt, deceased; that the deceased died as above mentioned; that the will was admitted to probate as stated in the amended petition; that the deposit box contained stock certificates and notes heretofore mentioned, all belonging to decedent; that decedent and plaintiff became co-lessees of the box as above mentioned in the petition, but did not become joint tenants as to the contents thereof; that they filed an inventory in the estate containing the securities above mentioned of which they had taken possession, administered the estate, are ready to close it, and that plaintiff is guilty of laches in bringing this action and has acquiesced in the probate proceedings of decedent's estate. Defendants prayed that plaintiff be denied any relief.

The court rendered judgment in favor of the defendants and dismissed the plaintiff's petition. We may incidentally mention the fact that a second cause of action was alleged by plaintiff and appellant herein claiming that the property above mentioned became her property as a gift causa mortis but this claim appears to have been abandoned. From the judgment rendered as above mentioned, the plaintiff has appealed to this court by direct appeal.

It is the contention of the appellant that since the deposit box in question was leased by the decedent in his own name prior to December 6, 1951, and in view of the fact that thereafter decedent and appellant became co-lessees and that appellant had access to the box and could have removed the securities in the box at any time as joint tenant, she became the sole owner of the securities after the death of the decedent by reason of the right of survivorship, as mentioned in the stamped words heretofore set out. Counsel for appellant call our attention to the fact that the contract with the bank should be construed in the light of circumstances surrounding the parties when the contract was made. 17 C.J.S., Contracts, § 321, pp. 744, 746. Unfortunately, however, we have been left in the dark as to a number of facts and circumstances which might throw light on the case before us. We know for instance that decedent left a will dated March 14, 1951, but we know nothing of the contents of the will except that it may be inferentially gathered from the answer of the executors herein that the property was left to the individual executors as trustees under the will. It was stated by counsel in oral argument herein that the value of the contents of the deposit box was approximately a million and a half dollars. We are left in the dark as to the age of the decedent and of the appellant herein. If we may take into consideration what was disclosed by the case argued at the same time as the case at bar, decedent and appellant have five living children, all daughters. We do not know their ages, although it seems they are all married. We know nothing of the attitude of the decedent toward these daughters or theirs toward him. If appellant's contention herein were sustained, these daughters would all be disinherited. It appears herein that appellant had some property in her own name, but we do not know the amount thereof. It appears herein that appellant never opened the deposit box in question until long after the decedent had died and she also testified that she did not remember signing the contract with the bank above mentioned.

The question before us is part of the larger question relating to the method of creating a joint tenancy with the right of survivorship in personal property. Most of the cases on the subject, and they are numerous, deal with bank accounts and certificates of deposit. See Annotation, 48 A.L.R. 190; 66 A.L.R. 891; 103 A.L.R. 1133; 135 A.L.R. 993; and see discussion in 7 Am.Jur. 307, 308. Counsel for defendants contend no such joint tenancy with right of survivorship can be created unless there exists unity of interest, title, time and possession and that these unities do not all exist in the case before us. They say that our statute has relaxed the rule only as to bank accounts when it provides in § 35-148, W.C.S.1945, that when a deposit has been made in the name of two persons, payable to either or the survivor, payment to either protects the bank. See as to that matter 48 C.J.S., Joint Tenancy, § 3, pp. 919 to 924. However, we find it stated in Annotation, 1 A.L.R.2d 249 'Numerous cases subscribe to the view that where from the language of the instrument it is evident that the parties thereto intended to create a right of survivorship, this intent will be given effect even though the instrument, by reason of the absence of one or more of the four unities of interest, time title, and possession, did...