Newitt v. Dawe

• Decision Date: 11 February 1943
• Docket Number: 3372.
• Parties: NEWITT v. DAWE.
• Court: Nevada Supreme Court

133 P.2d 918

61 Nev. 472

NEWITT v. DAWE.

No. 3372.

Supreme Court of Nevada

February 11, 1943

Appeal from District Court, Fourth District, Elko County; James Dysart, Judge.

Suit by Sue A. Hazell Newitt against Clarence E. Dawe, as executor of the last will and testament of William J. Dawe. From a judgment for defendant, plaintiff appeals.

Affirmed.

Milton B. Badt, of Elko, for appellant.

H. U Castle, of Elko, for respondent.

ORR Chief Justice.

This appeal presents for determination the question of whether or not the common-law rule, to the effect that where one of the joint payees of a bill or note dies title to the instrument passes to the surviving payees to the exclusion of the representatives of the deceased, is modified by Chapter 21 Session Laws of 1939, page 15, viz.: "An Act to define the manner in which joint tenancy may be created" approved February 23, 1939.

The following facts appear:

One Harris and wife had executed their promissory note for $12,500 to the order of William J. Dawe or Sue A. Hazell Newitt, and as security for this note, Harris and his wife executed their mortgage to William J. Dawe and Sue A. Hazell Newitt. William J. Dawe died, and Clarence E. Dawe was appointed executor of his estate. The executor came into possession of the note and mortgage. Mrs. Newitt made demand for the possession of the note and mortgage. This was refused, and she commenced suit against the executor claiming that by reason of Dawe's death she, as surviving joint obligee, became the owner of the paper. Her complaint alleged ownership. The deceased's executor admitted all of the allegations of the complaint except the allegation of ownership, and alleged the estate's ownership of a one-half interest in the note and mortgage.

Prior to the 1939 Act the statutory modification of the common-law rule as to the creation of joint tenancy related to real property only. Sec. 1513, Vol. 1, Nevada Compiled Laws, 1929. The Act of 1939 makes specific reference to personal property in the following words: "Joint tenancy in personal property may be created by a written transfer, agreement, or instrument." It is the contention of appellant that the statute quoted supra has no reference to instruments running in favor of joint obligees, and that the rule in this state is as laid down in the case of Ehrlich v. Mulligan, 104 N.J.L. 375, 140 A. 463, 57 A.L.R. 596, decided in the year 1928, and reasserted ten years later in the case of Hill v. Breeden, 53 Wyo. 125, 79 P.2d 482. With this contention we cannot agree. We see no reason why the use of the words "personal property" in the 1939 statute should be restricted so as to exclude choses in action. The common-law rule has been abrogated by statutory enactments in many states, and this modification of joint tenancies with the right of survivorship applies to joint tenancies in personal property, as well as real property, some states having provisions similar to Nevada: that the relation must be created by the grant, devise or other instrument. 33 C.J. pp. 902-903, paragraphs 3 and 4. Under note 27, p. 903, 33 C.J., there are cited two Arkansas cases, Trammell v. Harrell, 4 Ark. 602, and Sessions v. Peay, 19 Ark. 267, which hold the rule that where two or more payees or obligees have a joint interest in a note or bond and one dies, the right of action survives to the other, is not changed by statutes by which all survivorships of real and personal estate are abolished. These cases support appellant's position, but are not in accord with the weight of authority. In the case of Trammell v. Harrell, supra, Chief Justice Ringo of said court dissented, and we believe the reasoning contained in the dissenting opinion is more in accord with the intent and purposes of statutes modifying the common-law rule. We quote with approval the following statement taken from said dissenting opinion, as it appears on page 609 of 4 Ark. The Arkansas statute reads: "All survivorships in real and personal estate, are forever abolished." Chief Justice Ringo said: "The language used certainly comprehends every case of survivorship, and, by necessary implication, as I conceive, repeals all laws establishing any such right, as well in respect to personal property and choses in action, as to real estate, without any reservation whatever. And I know of no rule or principle which warrants any restriction of, or exception to, its general operation; for, I think it has been sufficiently shown, that the injustice, the hardship, and the inconvenience of the old law, was not confined to real estate, but also extended to personal property and even choses in action; because, in respect to the latter, it could scarcely be considered just, that a surviving obligor, simply from the accidental circumstance of the death of his co-obligor, should be bound to answer the whole demand, and be deprived of all right to call upon the legal representative of his deceased co-obligor for a ratable contribution, or that the legal representative of a deceased co-obligee should be obliged to wait until the joint demand was collected by the survivor, and then be compelled to sue him, in a court of equity, and there recover of him the share or portion of the deceased co-obligee, before he could obtain the possession and enjoyment thereof."

Choses in action are personal property (42 Am.Jur. p. 207, par. 26; 50 C.J. p. 763, par. 38), and are included within the term "personal property" as used in the 1939 statute quoted supra. It has been held that notes and mortgages are considered as personal property under statutes abolishing joint tenancy. Hay v. Bennett, 153 Ill. 271, 38 N.E. 645, at page 649, column 1. And in the case of State v. District Court, 74 Mont. 355, 240 P. 667, at page 669, column 2, the court makes...