Jacobs v. Jacobs

• Decision Date: 12 November 1986
• Citation: 728 P.2d 89,82 Or.App. 333
• Parties: In the Matter of the Estate of Clifford C. Jacobs, Deceased. Donald C. JACOBS, Personal Representative of the Estate of Clifford C. Jacobs, Deceased, Appellant, v. Helen I. JACOBS, Respondent. 2315; CA A35908.
• Court: Oregon Court of Appeals

Page 89

728 P.2d 89

82 Or.App. 333

In the Matter of the Estate of Clifford C. Jacobs, Deceased.

Donald C. JACOBS, Personal Representative of the Estate of Clifford C. Jacobs, Deceased, Appellant, v. Helen I. JACOBS, Respondent.

2315; CA A35908.

Court of Appeals of Oregon.

Argued and Submitted March 7, 1986.

Decided Nov. 12, 1986.

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

David Gernant, Portland, argued the cause and filed the brief for respondent.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

In this probate proceeding, the personal representative appeals a trial court ruling denying his petition that respondent be ordered to deliver to the estate certain assets that she had retained after her husband's death. We affirm.

The decedent, Clifford Jacobs, died in Arizona on July 4, 1982. He was a resident of Enterprise, Oregon, at the time of his death but had been spending winters in Arizona with his wife for a number of years. His survivors include his widow, Helen, a son, Donald Jacobs, and a daughter, Helen Lee Ward. Clifford and Helen had been married for approximately 11 years; it was a second marriage for both. They had entered into an antenuptial agreement ¹ and decedent left a will ² dated August 13, 1976. The trial court, in a detailed and well-considered opinion, found that, because the assets mentioned in the petition for turnover were jointly owned by Clifford and Helen with the right of survivorship, they passed to Helen at the time of Clifford's death.

The appeal focuses on decedent's intent and, on de novo review, we are presented with the same question confronted by the trial court: whether the assets passed to Helen at Clifford's death by virtue of the joint tenancies with right of survivorship or whether they belonged to the estate under operation of the will. The disputed assets include certificates of deposit in Oregon and Arizona, a checking account in Oregon, real estate in Arizona and stocks and bonds purchased through an Arizona broker.

Helen and Clifford purchased a house in Sun City, Arizona, during their marriage. Because the law applicable to real property is generally the law of its locus, Buresh v. First Nat'l Bank, 10 Or.App. 463, 500 P.2d 1063 (1972), we apply Arizona law to determine ownership of the house. In that state, there is a long-recognized general rule that all property acquired during marriage is community property. National Industries v. Republic Nat. Life Ins. Co., 677 F.2d 1258 (9th Cir.1982). In spite of that presumption, Arizona law recognizes the right of married persons "to hold property as joint tenants in derogation of their community property status." National Industries v. Republic Nat. Life Ins. Co., supra, 677 F.2d at 1266; see also In re Baldwin's Estate, 50 Ariz. 265, 71 P.2d 791 (1937); Safley v. Bates, 26 Ariz.App. 318, 548 P.2d 31 (1976). If that is intended, not only is it necessary that the deed contain language creating a joint tenancy, but there also must be a clear showing that both spouses agreed and intended that the property be held as a joint tenancy. ARS § 33-431 B provides for the creation of joint tenancies with the right of survivorship in real property:

"A grant or devise to two or more persons may, however, by express words vest the estate in the survivor upon the death of a grantee or devisee."

In Arizona, if property is held in joint tenancy, the survivor becomes the sole owner of the property upon the death of a spouse; if the property is held as community property, the decedent's one-half share may be disposed of by will and passes to the estate. In re Baldwin's Estate, supra.

In the present case, the property was jointly held with rights of survivorship. The escrow agreement read: "Clifford C. Jacobs and Helen I. Jacobs, his wife, as joint tenants with right of survivorship." Both of them signed that agreement. The deed states "to Clifford C. Jacobs and Helen I. Jacobs, his wife, not as tenants in common and not as a community property estate, but as joint tenants with right of survivorship." Helen and Clifford both signed the deed under the words "received and approved." We find that both agreed that the property would be held as a joint tenancy with the right of survivorship. Helen, therefore, became sole owner of the house at the time of Clifford's death.

Helen and Clifford also had bank accounts and certificates of deposit in Arizona and Oregon. In both states, the applicable statutes pertaining to checking accounts and certificates contain virtually the same language. ORS 708.600(1) provides:

" 'Account' means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit and share account."

ARS § 14-6101 mirrors that language. The Oregon assets consisted of a checking account valued at approximately $8,000 and certificates of deposit worth $70,000. The checking account was jointly owned with the right of survivorship and was made out to Clifford, Helen and Donald Jacobs. All signed the signature card. The certificates were made payable to "Clifford C. Jacobs or Helen I. Jacobs." They also owned certificates in Arizona valued at $60,000. ORS 708.616(1) and ARS § 14-6104(A) both provide:

"Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created. * * * "

Assets in the account at the time of the death belong to Helen, unless there is clear and convincing evidence of a contrary intent at the time the account was created. Additionally, ORS 708.616(5) and ARS § 14-6104(E) provide that the right of survivorship cannot be changed by will: "A right of survivorship arising from the express terms of the account * * * cannot be changed by will."

The personal representative contends that there is clear and convincing evidence that decedent intended his property to go to his children in equal shares and that his wife was to receive only an interest for life. He also asserts that decedent's will and the antenuptial agreement express that intent. The primary evidence that he offers is testimony by decedent's attorney about a conversation which he had with decedent about ten months before his death. At that time, decedent reportedly stated that he wanted his property to go to his children. However, that evidence does not establish that Clifford did not intend for the joint accounts to go to Helen.

Decedent either purchased or converted over 95 percent of his property to joint tenancy with the right of survivorship during the marriage. His attorney testified that he was a very astute businessman who owned property, ranches and a store and would have known the difference between a joint account and one in his own name. He suggested that decedent could have changed his mind, decided that he had already given his children enough and concluded that it was time to take care of himself and his wife. He had given his son a home and a business and had made numerous gifts to his daughter. He had conducted his business without advice from others. Helen knew little about his business affairs. She testified that...