Miller's Estate, In re, 49031

• Decision Date: 13 November 1956
• Docket Number: No. 49031,49031
• Citation: 79 N.W.2d 315,248 Iowa 19
• Parties: In re ESTATE of John MILLER, Deceased. Albert W. MILLER, Appellant, v. Robert MILLER, Appellee.
• Court: Iowa Supreme Court

Page 315

79 N.W.2d 315

248 Iowa 19

In re ESTATE of John MILLER, Deceased.

Albert W. MILLER, Appellant, v. Robert MILLER, Appellee.

No. 49031.

Supreme Court of Iowa.

Nov. 13, 1956.

Donald E. O'Brien and John T. O'Brien, Sioux City, for appellant.

Fred S. Nordenson, Sioux City, for appellee.

THOMPSON, Chief Justice.

John Miller died intestate, a resident of Woodbury County, on July 9, 1953. His son Robert Miller was appointed and qualified as administrator of his estate. No spouse survived John Miller, and the only other person entitled to share in his estate is the appellant, Albert W. Miller, another son. Robert Miller filed his final report as administrator on August 10, 1954, and prior to the time fixed for hearing Albert W. Miller filed a resistance and objections thereto. The issue thus made was determined by the trial court in favor of Robert Miller, and from this judgment we have the present appeal.

I. The controversy centers solely upon the construction to be placed upon certain language contained in three separate instruments known as debentures issued by the Farmers Loan & Trust Company of Souix City. These were in the respective amounts of $12,000, $8,000, and $6,000, were issued at various times and were due on various specified dates not important here. A debenture is defined by Webster's Collegiate Dictionary, Fifth Ed., as a writing or certificate issued as an evidence of debt. It is sometimes known as a 'debenture bond' and may be secured or unsecured. In the instant case the debentures seem to have been unsecured, and may be considered as time certificates of deposit, or promissory notes of the issuing bank, in the sense that they were promises to pay.

Each of the debentures was payable to 'John Miller or Robert Miller, either one or the survivor'. But it is the contention of the appellant that the intent of John Miller being the controlling consideration, and the writing establishing the joint tenancy being vague and unclear, evidence of intent was admissible; and evidence having been introduced which the objector-appellant thinks shows that John Miller meant to treat his sons alike in the distribution of his estate,--to divide it equally--it must be held that Robert Miller holds the proceeds of the debentures in trust for himself and his brother in equal shares. There seems little doubt that it was the money of John Miller which purchased the debentures.

There is some evidence of a signature card; but we think it unnecessary to consider whether the record shows this card was signed by both John and Robert Miller, or by only one, or when it was signed, or what were its terms. The usefulness of a signature card under these circumstances would be slight. Checks could not be written against the debentures; they were due at stated dates, and would be payable, under their terms, to either of the named payees upon identification. The actual contract here, as in joint tenancy deeds, was expressed on the face of the debentures.

II. There is no doubt that the words 'or the survivor' were sufficient to create a joint tenancy. Any language which clearly shows an intent to make the grantees in a written instrument of conveyance or ownership joint tenants is sufficient. In Wood v. Logue, 167 Iowa 436, 437, 149 N.W. 613, 614, this language was held to show a clear intent to create a joint tenancy:

"In case of the death of the grantor, the grantees are to inherit the undivided one-third interest of the grantor, and in case of one of the grantees dying first, the grantor and the surviving grantee are to inherit that portion of the property that is owned by the grantor and grantee that are deceased. It is understood between the grantor and grantees herein that the one dying last is to be the absolute owner of the property herein described, and he or she may dispose of the entire property by will or in any other way that he or she may desire." See also Stewart v. Todd, 190 Iowa 283, 173 N.W. 619, 180 N.W. 146, 20 A.L.R. 1272.

The issuance of shares in a building and loan association to 'Morris Polansky and Ida, his wife, or survivor' was held by the New Jersey Court of Chancery to effect a joint tenancy in the shares, the court saying:

'But a joint tenancy is created when title is put in the names of husband and wife, or the survivor, and then, upon the death of one of them, the survivor becomes entitled to the whole.'

Able-Old Hickory Building & Loan Association v. Polansky, 138 N.J.Eq. 232, 47 A.2d 730, 731. To the same effect is Tobas v. Mutual Building & Loan Association, 147 Neb. 676, 24 N.W.2d 870, 871.

The general rule is as contended for by the appellant herein; that is, that the presumption is that any instrument, whether pertaining to realty or personalty, in which two or more persons are grantees, or payees, creates in them a tenancy in common in the absence of expression of a contrary intent. However, the language of the debentures here makes clearly apparent that intent to create a joint tenancy in John Miller and Robert Miller, and we so hold.

III. Of course, language creating a joint tenancy in a written instrument gives the grantees, or payees, the rights of joint tenants. The most important and well established of these is the right of the survivor to take the whole property. Since the right of joint tenancy in personal property as well as in real estate is recognized in Iowa (see In re Estate of Winkler, 232 Iowa 930, 933, 5 N.W.2d 153, 155), it follows that language which is sufficient to...