Lewis' Estate, Matter of

• Decision Date: 29 October 1975
• Docket Number: No. 11533,11533
• Parties: In the Matter of the ESTATE of Ova LEWIS, Deceased. Carolyn ESCHWEILER, Administratrix of the Estate of Ova Lewis, Deceased, Plaintiff-Appellant, v. Phyllis DOWNEY and the Estate of Leo Haskel, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 852

543 P.2d 852

97 Idaho 299

In the Matter of the ESTATE of Ova LEWIS, Deceased.

Carolyn ESCHWEILER, Administratrix of the Estate of Ova Lewis, Deceased, Plaintiff-Appellant, v. Phyllis DOWNEY and the Estate of Leo Haskel, Defendants-Respondents.

No. 11533.

Supreme Court of Idaho.

Oct. 29, 1975.

Stephen W. Boller, Hailey, for plaintiff-appellant.

Kneeland & Laggis, Ketchum, for defendants-respondents.

McQUADE, Chief Justice.

This appeal involves a dispute over the distribution of the estate of Mrs. Ova Lewis, who dies intestate on August 12, 1966, in Hailey, Idaho. Her only heirs were three nieces and one nephew: plaintiff-appellant Carolyn Eschweiler, the administratrix of the estate (hereinafter appellant); her sister Dorothy Blech, who has waived any interest she may have in the estate; and defendants-respondents Phyllis Downey and Leo Haskel, who is deceased and represented by his estate (hereinafter respondents). Appellant petitioned the probate court and received letters of administration for the estate in October, 1966. Pursuant to the order of the probate court, notice by publication to the creditors of the estate, requiring them to make claims within four months of the first publication was made from December 1 through December 22, 1966. A decree showing that proper notice had been given to creditors was entered by the probate court on February 20, 1967.

During the course of the administration of the estate, a dispute arose between appellant and respondents. The dispute centered around three main areas of controversy:

(1) Appellant's failure to include in the estate certain real property located in Hailey, Idaho;

(2) Appellant's failure to include among the assets of the estate a savings account at the First Federal Savings & Loan Association of Boise which was a joint account of appellant and the deceased, and

(3) Appellant's allowance of a creditor's claim to herself in the amount of $2,426.38. Appellant claims the real property and the bank account as her own. Appellant has not filed for record a final account of her administration of the estate.

Respondents filed a motion for an order to show cause in March , 1969, asking that the Hailey property and the Boise savings account be included in the estate, and that appellant's creditor claim be disallowed. A hearing was held on the motion in July, 1969, at which time the probate court set aside the motion, anticipating that the parties would reach an out-of-court settlement. However, the parties did not reach such a settlement and therefore respondents renewed their motion in May, 1972. This motion included new claims not germane to this appeal. An order to show cause was entered ordering appellant to respond to the motion.

To avoid multiple hearings on this proceeding, first before the magistrate's division of the district court, and then before the district court, by stipulation of the parties, this cause was heard de novo in the district court on September 12, 1972. The court entered judgment against appellant, ordering that the real property in Hailey and the Boise bank account plus interest be included in the estate, and disallowing appellant's creditor claim. The court also ordered that appellant be removed as administratrix, and that a public administrator be appointed to settle and distribute and estate. Following denial of appellant's objections to the court's findings of fact and conclusions of law, this appeal was taken. We affirm in part and reverse in part the lower court's judgment.

In her first assignment of error, appellant maintains that the trial court erred in concluding that no gift was made to her of the real property in Hailey, Idaho, by deed from the decedent, and in ruling that this real property should be included in the probate estate. She claims the property passed to her outside of probate by a deed executed by the decedent before her death. According to appellant, a deed of gift was executed on March 5, 1965, naming her as grantee of the subject real property. She was then apprised of this fact by decedent. The record discloses that after the deed was executed, it was delivered to George F. McCoy, then Blaine County Recorder, who held it until Mrs. Lewis' death. Shortly after the death, appellant secured the deed from McCoy, and recorded it on August 15, 1966. This evidence in appellant's view supports the conclusion that a valid inter vivos gift of real property was completed through delivery to an agent during decedent's lifetime.

In Zimmerman v. Fawkes, ¹ this Court enunciated the essential elements which must be present before a valid inter vivos gift will be found to exist:

'* * * The essential elements of a 'gift inter vivos' are: (1) A donor competent to contract; (2) freedom of will of donor; (3) the gift must be complete and nothing left undone; (4) the property must be delivered by the donor and accepted by the donee; (5) the gift must go into immediate and absolute effect.' ²

Respondents do not dispute the existence of the first three of these elements. Rather they contend there was no present delivery because the property did not pass beyond the dominion and control of the donor.

A necessary element of an enforceable gift be it inter vivos or causa mortis is:

'. . . present donative intent, that is the giver's purpose or motive to transfer immediately to the donee dominion over the object given.' ³

Such transfer or delivery need not necessarily be to the donee in person. It may be to a third party agent acting in the donee's behalf. ⁴

The question before this Court is whether McCoy was acting as the decedent's agent; i. e., whether Ova Lewis still exercised dominion over McCoy to request return of the deed to her. If she could have, then she did not relinquish all dominion, and no effective transfer was made. On the other hand, if the decedent had divested herself of control over the deed, then McCoy was acting, in effect, as appellant's agent. This is a question of intent as of the time the deed was given to McCoy. The trial court made no finding of fact on this crucial point. Therefore, we must reverse on this ground and remand back to the trial court for such a finding. As stated in Perry Plumbing Co. v. Schuler, ⁵

'. . . the trial court must make findings upon each and every material issue arising from the pleadings, upon which proof is offered. Its failure to do so will necessitate a remand for additional finding, unless such findings would not affect the judgment entered.' ⁶

In her second assignment of error, appellant submits that the trial court erred in requiring her to include in the estate the savins account in the First Federal Savings & Loan Association of Boise, plus interest to date. Appellant argues that this savings account was a joint account with decedent and herself, and that upon the death of decedent, she was entitled to the entire account through the right of survivorship.

It is well established in this state that,

'(W)here money in a joint account is deposited by one party, and thereafter a question of the depositor's intent arises, the party asserting the gift must prove all the elements of a gift, excepting irrevocable delivery, by clear and convincing evidence.' ⁷

The record is devoid of a finding on the critical question of the decedent's intent at the time the joint savings account with appellant was established. Therefore we remand back to the trial court to make this finding on clear and convincing evidence.

We do not believe that the enactment of the Uniform Probate Code in this state in any way modified the quantum of proof that a non-contributing party asserting a claim to a joint bank account by right of survivorship need introduce in order to prove a decedent's donative intent at the time the joint account was created. I.C. § 15-6-104(a) provides in pertinent part:

'Right of survivorship.-(a) 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 if an intent to give the account can be shown by the surviving party or parties . . .'

Professor Philip Peterson, instrumental in bringing about the adoption of the Code in Idaho, stated his belief in a law review article on Idaho's Uniform Probate Code, ⁸ that the above mentioned language was intended to codify the results of the Griffith's case. ⁹ In the Griffith's case, it was established that a non-contributing surviving joint tenant who claimed a right to the proceeds of a joint savings account by right of survivorship was required to establish the decedent's donative intent by 'clear and convincing evidence,' and not by a mere preponderance.

We are cognizant of the fact that I.C. § 15-6-104(a) differs from its counterpart provision in the Uniform Probate Code as promulgated by the National Conference of Commissioners on Uniform State Laws. The Uniform Probate Code provision is as follows:

' § 6-104(a) 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 convincting evidence of a different intention at the time the account is created.'

Although this provision was not specifically adopted by our Legislature, nevertheless I.C. § 15-6-104(a) requires the surviving joint tenant to prove the decedent's donative intent at the time the joint account was established. There is no indication that in refusing to adopt section 6-104(a) of the Uniform Probate Code, and in adopting I.C. § 15-6-104(a), the Legislature intended to modify the standard in this state as announced in the Griffith's case. In the absence of other information that this was the Legislature's desire, we decline to read this intent into the legislation.

In her third assignment of error, appellant contends that the district court erred in denying her creditor's claim, and in requiring that this sum be placed back in the...