Reidy v. Almich
| Decision Date | 27 September 1966 |
| Docket Number | CA-CIV |
| Citation | 4 Ariz.App. 144,418 P.2d 390 |
| Parties | James B. REIDY, as Executor of the Estate of Ida A. Shepard, deceased, and Pima Savings and Loan Association, an Arizona corporation, Appellants, v. Clara ALMICH, Appellee. * 2262. |
| Court | Arizona Court of Appeals |
Rees, Estes & Browning, by Paul G. Rees, Jr., and Daniel J. Reidy, Tucson, for appellant Reidy. Merchant, Lohse, Donohue & Bloom, by Ashby I. Lohse, Tucson, for appellee.
This is an appeal from a summary judgment granted in favor of one of the defendants in an interpleader action brought by the plaintiff, Pima Savings and Loan Association, to determine the ownership of a savings account held in that institution under the name of 'Shepard, Ida A., Trustee.' The plaintiff joined as defendants the executor of the estate of Ida A. Shepard and Clara Almich, a surviving sister of the deceased, who was named as beneficiary in the signature card pertaining to the subject account. The judgment of the court below was in favor of the defendant Clara Almich and against the contention of the executor that the amount on deposit in the subject account at the time of the death of Ida Shepard was the proper of her estate.
The subject account had been established originally on January 4, 1957, as the joint account of William L. or Ida A. Shepard, husband and wife. The husband, William L. Shepard, died sometime in 1957 and the account in question was continued thereafter as the individual account of Ida A. Shepard until August 25, 1960. At this time Mrs. Shepard came into the office of the plaintiff and signed a signature card reading as follows:
'Individual Trust
(1) Shepard, (To be typed) (Surname) Ida A. (First Name) _ _ Trustee (Middle Name)
(2) Almich, Mrs. Clara Beneficiary I hereby apply for membership and a _ _ savings share account in the PIMA SAVINGS AND LOAN ASSOCIATION and for the issuance of evidence of membership. A specimen of my signature is shown below and the association is hereby authorized to act without further inquiry in accordance with writings bearing such signature.
Signature /s/ Ida A. Shepard _ _ Telephone Number as Trustee
As specified in trust agreement on reverse side hereof. Dated 25 day of Aug, 1960.'
On the reverse side of the signature card was a form of 'Trust Agreement,' which contained five numbered paragraphs. In paragraph (1) and (2) the power to control the account and to revoke it at any time is retained in the 'trustee.' There are no blanks in these paragraphs. Paragraphs (3) and (4) provide for the appointment of a 'successor trustee' and for a continuation of the trust, '* * * subject to the right of revocation * * *' until the 'beneficiary' reaches a certain age. These two paragraphs have unfilled blanks pertaining to the names of the successor trustees and the age of the beneficiary. Paragraph (5), absolving the savings and loan association from liability in honoring the signature of the 'trustee,' has no unfilled blanks. A space for a date and the signature of the 'grantor' were left in blank at the bottom of the form.
The employee of the plaintiff loan association who dealt with Mrs. Shepard on the occasion in question could not remember the particular circumstances of the transaction of August 25, 1960, but testified that the transaction appeared from the records of the plaintiff to have been handled in its customary way to change an individual account into a trust account with a designated beneficiary. This employe testified that it was not customary at the time of this transaction for the reverse side of the signature card on an 'individual trustee' account to be completed as it was not thought by her superiors to be necessary to establish such an account.
The defendant-executor has made admissions in response to requests for same that the signature of Ida A. Shepard upon the signature card in question is genuine and that the information upon the card was personally supplied to the plaintiff by Ida A. Shepard.
At the time of the death of Mrs. Shepard, there was the sum of $10,000, plus accumulated interest, in the account in question. There is a verified statement from another surviving sister of Ida A. Shepard on file in this action reading, in part, as follows:
'I Marion Knoll the undersigned, know there was ten thousand dollars put away for Clara Almich in a Saving and Loan Assn in Tucson Arizona, by Ida Shepard, because Ida told me while living at my home 2711 West 28 Street Minneapolis, Minn.'
Other than the foregoing, there was no evidence before the lower court as to any intent or lack of intent on the part of Ida A. Shepard to establish a trust for the benefit of her surviving sister Clara Almich. The plaintiff made no objection to the motion for summary judgment of the defendant Almich and has taken no appeal from the judgment below.
The defendant-executor filed objections to the motion, unsupported by affidavit, and has appealed to this court from the unfavorable judgment below, contending (1) that the signature card in question is not sufficient to satisfy the requirement of A.R.S. section 6--431 that there be a 'written agreement' and (2) that there was insufficient evidence of the intent of the deceased, Ida A. Shepard, to establish a trust as to the subject savings account.
The original complaint was filed on July 9, 1962, while summary judgment was granted almost two years later, on May 25, 1964. There is no contention made by the appellant-executor that the trial court wrongfully restricted the appellant in pursuing discovery procedures. There is no suggestion on appeal that any additional evidence would be forthcoming at a trial other than that which might be developed by cross-examination of whatever witnesses might be called by the defendant Almich. The only known witness to the transaction changing the savings account from an individual one to that of an 'individual trust' account is the employee of the plaintiff who was examined by appellant's counsel at the time her deposition was taken. The only evidence in the record pointed out by the appellant as casting any doubt upon the intent of the deceased to establish an account which would become the property of the defendant Clara Almich upon the death of the deceased is a portion of the verified statement of Marion Knoll to the effect:
'She (Ida Shepard) told me that Bill Shepard her late husband had made a will dividing their estate equally to his Brother Fred Shepard and her sister Clara Almich, but that she was going to make a new will giving it to the children, and Clara Almich.'
A.R.S. section 6--431, subsec. B, in its pertinent portion, reads as follows:
(Emphasis added)
We are here dealing with a 'Totten' or 'tentative' trust, a device used to pass property in a bank account after the depositor's death to a designated person through the vehicle of a trust rather than through the more ritualistic process of probate. Without the aid of statute, the device has been both upheld, In re Totten, 179 N.Y. 112, 71 N.E. 748, 70 L.R.A. 711 (1904), and struck down, Murray v. O'Hara, 291 Mass. 75, 195 N.E. 909 (1935). The Restatement of the Law of Trusts (Second), section 58, has resolved this conflict of authority in favor of upholding such a trust:
'Where a person makes a deposit in a savings account in a bank or other savings organization in his own name as trustee for another person intending to reserve a power to withdraw the whole or any part of the deposit at any time during his lifetime and to use as his own whatever he may withdraw, or otherwise to revoke the trust, the intended trust is enforceable by the beneficiary upon the death of the depositor as to any part remaining on deposit on his death if he has not revoked the trust.' Restatement (Second), Trusts, § 58
This court has no need to determine what the common law of Arizona might be on this interesting subject, the legislature having specifically given its approval to the concept of the tentative trust insofar as the savings account in question is...
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