Phoenix Title & Trust Co. v. Ella v. King, Civil 4379

• Citation: 121 P.2d 429,58 Ariz. 477
• Decision Date: 19 January 1942
• Docket Number: Civil 4379
• Parties: PHOENIX TITLE & TRUST CO., Administrator de Bonis Non With the Will Annexed of the Estate of Will P. Isley, Deceased, and BERLIE I. ROBART, Individually, Appellants, v. ELLA ISLEY KING, Appellee
• Court: Arizona Supreme Court

121 P.2d 429

58 Ariz. 477

PHOENIX TITLE & TRUST CO., Administrator de Bonis Non With the Will Annexed of the Estate of Will P. Isley, Deceased, and BERLIE I. ROBART, Individually, Appellants, v. ELLA ISLEY KING, Appellee

Civil No. 4379

Supreme Court of Arizona

January 19, 1942

APPEAL from a judgment of the Superior Court of the County of Maricopa. Levi S. Udall, Judge. Judgment modified and as so modified affirmed.

Messrs Hayes & Allee, for Appellant Phoenix Title & Trust Co.

Messrs Stanford & Stanford, for Appellant Berlie I. Robart.

Messrs Langmade & Langmade, for Appellee.

OPINION

LOCKWOOD, C.J.

This is an action brought by Ella Isley King, plaintiff, to require Berlie I. Robart, defendant, to account to the estate of Will P. Isley, deceased, for the sum of $5,000. The material facts necessary to a disposition of the case are not seriously in conflict and may be stated as follows:

Will P. Isley died June 6, 1939, leaving a holographic will dated June 30, 1934, which provided for a number of specific legacies, and then concluded as follows:

"to Berlie I. Robarts my oldest girle by Willie Jones Isley -- I make my legal administrator with out Bond I give her all rites to all my Personal Propertey to Dispose of as she sees fit & to pay the others as I hav stated after all Debts are Paid. What ever moneys if any are left She is to Divide eakoley with Ella King my Oldest Girl providin Ella is still single in case Ella is married a gin She Only is to have One third of the money -- that is left after all Debts are Paide."

It is admitted that the Ella King named in said will is the plaintiff in this action. At the time the will was executed deceased had two bank accounts, a checking one in the First National Bank of Arizona, which was opened by him in 1926, and a savings account in the Phoenix Savings Bank and Trust Company, which was started before 1918.On the date the will was made deceased authorized defendant to make withdrawals from the open account. On September 7, 1934, deceased and defendant went to the Phoenix Savings Bank and Trust Company and had the savings account changed to a joint account. They each signed a depositor's card which read as follows:

"We, the undersigned, having opened a joint account with the above named bank, hereby agree that all moneys deposited by us, or either of us, in said account, together with the increase thereof shall be placed to the credit of us jointly and may be withdrawn from or paid out by said bank, upon the request or order of both or either of us; and also that upon the death of either of us, the survivor shall have the absolute right to withdraw or be paid all moneys then remaining to our credit in said account, and the receipt of either of us or the survivor of us and payment thereof shall discharge said bank from liability to either of our heirs, executors and administrators. It is understood, however, that no withdrawals drawn in that account by the survivor will be honored until evidence is furnished that the inheritance tax is paid or arrangements made to pay the same in accordance with the requirements of law. We also agree to be governed by the by-laws, copy, of which is in our pass book, in regard to all deposits we may have with the said bank."

After this change of the savings account was made no withdrawals therefrom were made except an amount equivalent to the semi-annual interest, as it accumulated, and one withdrawal of $1,000 made in February, 1938. All these were made by deceased. The ultimate result was that the account, which amounted to $6,000 when it was changed from a separate account of deceased to a joint one of himself and defendant, was reduced to $5,000 at the time of his death.

The day after he died defendant, as the surviving joint depositor, withdrew the entire balance remaining in the savings account and ever since that time has treated it as her individual property. Thereafter his will was duly probated by defendant. Application was made to the estate tax collector of the State of Arizona, as provided by law, for the immediate transfer of bank deposits, in which defendant stated that deceased was the owner or joint owner of the two bank accounts above referred to, and that he had made no gifts nor transfers within the five years immediately preceding his death.

The case came on for trial before the court sitting without a jury. It was the theory of plaintiff that both bank accounts belonged to the estate of deceased and that defendant was, therefore, bound to account to such estate for both of them. It was the contention of defendant that the $5,000 savings account was her property, by reason of the action of deceased before his death. In support of this contention she offered evidence that her father had stated, in substance, at the time the savings account was made joint, that if she survived him she should have it in payment of a debt which he owed her for services which she had rendered as his daughter in caring for him. The court rejected this testimony. Nate Smith testified to the effect that deceased had stated to him shortly after he made his will:

"A. He said he was going to fix it so that Berlie, his daughter, would get what he had in the bank. He said he wasn't going to leave anything to the rest of the damned brats; he said he had done for them all he was going to do.

"The Court: He said what?

"A. He said he was going to fix it so that Berlie would get what he had in the bank and he said he didn't want any of the rest of the damned brats to get any of it because he had done enough for them."

There was also other evidence to the effect that defendant had cared for him on a number of occasions when he was ill. The trial court made findings of fact and rendered judgment as follows:

"And it appearing that upon the death of Will P. Isley a savings deposit with the Phoenix Savings Bank & Trust Company belonging to said estate came into the possession of Berlie i. Robart individually and as Executrix of his estate she failed to account therefor and has retained and treated the said money as her own, and it $"Further appearing that the plaintiff and defendant as residuary legatees, under the last will of Will P. Isley, deceased, are entitled to share in said $5,000 equally, share and share alike:

"It Is Therefore Hereby Ordered, Adjudged and Decreed that said Berlie I. Robart account for, return and pay over to the estate of Will P. Isley, deceased, the sum of $5,000.

"It Is Further Ordered, Adjudged and Decreed that the plaintiff have and recover of the defendant, Berlie I. Robart individually, and Berlie I. Robart, Executrix of the Estate of Will P. Isley, deceased, the sum of $2,500.00.

"It Is Further Ordered that the judgment against Berlie I. Robart as Executrix shall be paid in due course of administration as an allowed claim and no execution shall issue."

Whereupon this appeal was taken. After the appeal was taken Robart was removed as executrix, and the Phoenix Title and Trust Company was appointed as administrator de bonis non, with the will annexed, of the estate of deceased, and was substituted for Robart as executor on the appeal and permitted to, and did, file a brief herein. The appeal is, therefore, a triangular one.

It is the contention of plaintiff that the judgment should be affirmed in toto. It is the position of defendant that it should be reversed and judgment rendered in her favor, and of the Phoenix Title and Trust Company that the...