In re Ivers' Estate

• Decision Date: 09 July 1940
• Docket Number: 27447.
• Citation: 4 Wn.2d 477,104 P.2d 467
• Court: Washington Supreme Court
• Parties: In re IVERS' ESTATE. v. IVERS. WILSON

104 P.2d 467

4 Wn.2d 477

In re IVERS' ESTATE.

WILSON v. IVERS.

No. 27447.

Supreme Court of Washington, En Banc.

July 9, 1940

Proceeding in the matter of the estate of Frank Ivers, deceased, by Frances Ivers Wilson against Margaret Ivers, as administratrix of the estate, to obtain inclusion of certain bank deposits in the inventory of the estate. From an order denying the petition, the petitioner appeals.

Affirmed.

BEALS J., BLAKE, C.J., and MAIN and MILLARD, JJ., dissenting.

Appeal from Superior Court, Spokane County; Fred H. Witt, judge.

Hamblen Gilbert & Brooke, of Spokane, for appellant.

H. Earl Davis, of Spokane, for respondent.

STEINERT Justice.

This is an appeal from an order denying a petition for the issuance of a citation directing an administratrix to show cause why she should not be required to include certain bank deposits in her inventory of the estate. The petition and answer taken together, presented to the probate court the question whether the deposits belonged to the decedent at the time of his death or whether, on the contrary, they were, or became, the separate property of his wife. The facts were not in dispute, and the order entered by the court was based upon a determination that the estate as a matter of law possessed no interest in the deposits.

Frank Ivers, a resident of Spokane, died intestate in this state on July 10, 1937, leaving, as his sole heirs at law, his widow, Margaret Ivers, respondent herein, and his two daughters, Frances Ivers Wilson, appellant here, and Marie Ivers Hutchins. So far as the record discloses, the daughters are non-residents of this state. The widow was duly appointed and now is the administratrix of the estate of the decedent.

At the time of the death of Frank Ivers there was on deposit in the Seattle First National Bank, Spokane & Eastern Branch, the sum of $1,007.93 credited to the joint account of Mr. and Mrs. Ivers. The account had been opened during the year preceding Mr. Ivers' death, upon a printed form of agreement supplied by the bank and reading as follows:

'The undersigned hereby open a joint and several account with you to be kept in our names, and which shall be paid out on the check or other order of either of us. Each depositor's interest is acknowledged to be several as well as joint in the entire amount of the deposit now made, or as it may hereafter be, and the death or other disability of either depositor shall not affect the right of the other to withdraw the entire deposit. Each of us is authorized by the other to endorse the name of the other to all checks to be cashed or deposited. The signatures which you will honor are as follows:

'(Signed) F. Ivers.

'Mrs. F. Ivers'

At the same time there was on deposit in the United States National Bank of Portland, Pendleton Branch, the sum of $3,060.30 in a similar joint account which had been opened in April, 1935. The agreement evidencing that account was printed on a card furnished by the bank and read as follows:

'The United States National Bank of Portland accepts the joint account herein provided for under the following conditions, which are accepted by the undersigned and constitute a contract between the Bank and the depositors and/or each of them.

'Deposits entered herein are payable to either F. Ivers or Mrs. F. Ivers, or the survivor, and in case of the temporary closing of this account, you are hereby notified that a deposit thereafter by either is to be payable to either or the survivor, in case of the death of either, unless you are otherwise notified.

'Each depositor is authorized to sign and endorse checks, notes, drafts or other commercial paper payable to the other, and deposit the same in this account, and each depositor is the general agent of the other for all purposes connected with making deposits to this account or drawing checks thereon, and in case of overdraft by either, or overpayment to either, said overdraft or overpayment having arisen by error, mistake, inadvertence or otherwise, they are jointly and severally liable to the Bank for said overdraft or overpayment.

'In case of action to recover back said overdraft, or overpayment, the undersigned agree to pay in addition thereto such additional sum as attorney's fees as the court may adjudge to be reasonable to such action.

'Dated April 24th, 1935.

'(Signed) F. Ivers

'(Signed) Mrs. F. Ivers.

These two deposit agreements constitute the only evidence in the record concerning the transactions in which the accounts were opened. There is no evidence of any specific agreement solely and exclusively between Mr. and Mrs. Ivers with respect to the character, ownership, or disposition of the funds deposited.

During the course of the probate proceedings, appellant filed a petition alleging that respondent had not made a full and correct inventory of the property belonging to the estate, in that she had not included the moneys standing in the two joint accounts which, it was averred, were community property. The prayer of the petition was that a citation issue requiring respondent to show cause why all moneys on deposit should not be included in the inventory. Respondent appeared by answer and return to the petition, and set forth in her pleading the facts substantially as we have already narrated them, and claiming that, by reason of the terms and conditions of the agreements and the subsequent death of Mr. Ivers, she became the sole owner of the two accounts. She further alleged that of the moneys on deposit in the Oregon bank at least $1,000 was at all times her separate property; that issue however, is not presented for adjudication on this appeal. The material allegations of the answer were denied by reply. The matter was thereupon submitted to the court on the pleadings. The court rendered a memorandum opinion expressing the view that the agreements created joint tenancies with the right of survivorship, and thereafter entered an order confirmative of its memorandum opinion and denying the petition.

Respondent has moved to dismiss the appeal upon the ground that the order here in question is not a final and appealable order, in that this proceeding, having been instituted under Rem.Rev.Stat. § 1472, is in the nature of a discovery proceeding, and the statute makes no provision for an appeal from such an order. The following cases are cited in support of the motion: State ex rel. Wolfe v. Superior Court, 139 Wash. 102, 245 P. 764; In re Robinson's Estate, 142 Wash. 552, 253 P. 816; State ex rel. Brown v. Long, 180 Wash. 602, 41 P.2d 396

.

The Robinson case, supra, merely held that an initiatory order directing an administrator to institute summary proceedings for the recovery of assets as provided by Rem.Comp.Stat. § 1472, was not an appealable order under Rem.Comp.Stat. §§ 1591 and 1716.

In both of the other two cases cited, supra, it was held that Rem.Rev.Stat. § 1472 (formerly Rem.Comp.Stat. § 1472), was a statute of discovery only and did not authorize the court to try title to the property involved.

However, in each of these latter two cases the matter came to this court by way of writ of prohibition to restrain the superior court from proceeding to try title in a case where the parties were Before that court only in discovery proceedings and wherein no issues had been joined on the matter of title to the property. In the case now Before us we have an entirely different situation. Here the respondent in her answer asserted title to the deposits in the joint account and in fact that was the real issue presented to the court.

Where parties come into court without objection and submit the title to specific property for adjudication, the court may determine the ownership of such property. In re Uzafovage's Estate, 153 Wash. 620, 280 P. 85; In re Quick's Estate, 161 Wash. 537, 297 P. 198.

Respondent, however, contends that the rule just stated should not control this case for the reason that appellant's sister, who is one of the heirs at law, was not a party to the proceeding and that, therefore, all parties interested in the matter to be adjudicated are not Before the court.

Conceding for the sake of argument that such objection would be effective if properly raised, it comes too late upon the appeal. No objection having been raised by demurrer or answer, and the court having obtained jurisdiction of the subject matter, respondent may not now claim that there is a defect of parties. Rem.Rev.Stat. §§ 259, 261 and 263. Hannegan v. Roth, 12 Wash. 65, 40 P. 636; State ex rel. Abrashin v. Terry, 74 Wash. 208, 133 P. 386; Collins v. Warner, 141 Wash. 162, 251 P. 288; O'Neal Land Co. v. Judge, 196 Wash. 224, 82 P.2d 535.

The motion to dismiss the appeal is denied.

Upon the merits of the case the question is whether or not, with respect to the moneys on deposit, the agreements through which the joint accounts were opened created joint tenancies with the right of survivorship. The court answered the question in the affirmative.

The doctrine of survivorship as an incident of joint tenancy was abrogated in this state in 1885 by an act of the legislature entitled: 'AN ACT to Abolish the Right of Survivorship in Estates held in Joint Tenancy.' Laws 1885-86, p. 165; Rem.Rev.Stat. § 1344; Mabie v. Whittaker, 10 Wash. 656, 39 P. 172; Brownfield v. Holland, 63 Wash. 86, 114 P. 890; Halverstadt v. Estus, 160 Wash. 390, 295 P. 175; Winner v. Carroll, 169 Wash. 208, 13 P.2d 450.

By chapter 123, § 2, p. 280, Laws 1929 (Rem.Rev.Stat. § 3348(3), the provision for survivorship as an incident of joint tenancy was revived with respect to joint accounts in mutual savings banks. Winner v. Carroll, 169 Wash. 208, 13 P.2d 450; In re Peterson's Estate, 182 Wash. 29, 45 P.2d 45.

By chapter 183, § 41, p. 729, ...