Snow v. Martensen
| Decision Date | 07 April 1975 |
| Docket Number | No. 74--300,74--300 |
| Citation | 522 S.W.2d 371,257 Ark. 937 |
| Parties | Miss Linda Ellen SNOW and Mrs. Dale Loyd Smith, Appellants, v. Marjorie T. MARTENSEN, Appellee. |
| Court | Arkansas Supreme Court |
Crouch, Blair, Cypert & Waters, Springdale, for appellants.
Jones & Segers, Fayetteville, for appellee.
This is an appeal by Miss Linda Ellen Snow and Mrs. Dale Loyd Smith from a Washington County Probate Court judgment holding the appellee, Marjorie T. Martensen, to be the surviving joint tenant, and therefore sole owner, of a savings account in the approximate amount of $70,000 deposited with the First Federal Savings and Loan Association of Fayetteville in the names of Blanche M. Box and Marjorie M. Martensen. 1
The facts appear as follows: Mrs. Blanche M. Box was 83 years of age when she died testate in Washington County, Arkansas, on October 17, 1971. She left as her sole surviving heirs, one daughter, the appellee Marjorie T. Martensen, and two granddaughters, the appellants Linda Ellen Snow and Joan Snow Smith.
Mrs. Box was living in California when she executed her last will and testament on March 10, 1969, and the pertinent provisions of the will read as follows:
(a) One-half (1/2) thereof to my daughter, MARJORIE T. MARTENSEN. If she fails to survive me, I give all such property to her lawful issue who survive me on the principle of representation.
(b) One-fourth (1/4) thereof to my granddaughter, LINDA ELLEN SNOW.
(c) One-fourth (1/4) thereof to my granddaughter, JOAN ELIZABETH SNOW.
SEVENTH: I nominate and appoint my husband as Executor of this Will, to serve without bond. If my husband shall for any reason fail to qualify or cease to act as Executor, I nominate and appoint CARL J. SCHUCK as Executor of this Will, to serve without bond. The term 'Executor' as used in this Will shall include any personal representative of my estate. I authorize my Executor to sell or lease such property of my estate as may be necessary or advisable, subject to confirmation as may be required by law and to hold, manage and operate any business belonging to my estate at the risk of my estate. I authorize and empower my Executor to invest and reinvest my estate to the extent permitted by law in such investments as are authorized by the provisions of California Civil Code Section 2261 or any subsequent statute of similar import.'
Mrs. Martensen went to California and returned to her home in Fayetteville with her mother, Mrs. Box, about October 1, 1971. Mrs. Box's husband, John V. Box, died after the will was executed. Following the death of Mrs. Box, Mr. Schuck renounced his right to appointment as executor under the will and Mrs. Martensen was appointed administratrix with will annexed. Mrs. Martensen filed her inventory on May 10, 1973, showing no real estate, and personal property totaling $786.00 itemized as follows:
'Miscellaneous personal effects $50.00
One (1) old style round cut diamond ring, 2.20 carats with four small diamond melee 696.00
One (1) 14 kt. yellow gold bracelet 25.00
One (1) 14 kt. yellow gold bee pin 15.00'
The appellants filed objections to the inventory filed by the appellee. They contended that the savings account here involved constituted assets of the decedent's estate to be administered under her will. Mrs. Martensen contended first that the amount in the savings account was a gift to her and, second, that the savings account belonged to her as the surviving joint tenant with right of survivorship. The probate judge agreed with Mrs. Martensen on her second contention and on appeal to this court the appellants have designated the following points for reversal:
'The probate court erred in holding that Arkansas law does not require a designation in writing to create a joint-tenance with right of survivorship in a savings account held in a savings and loan.
The probate court erred in failing to hold that even if Ark.Stat. 67--1838(1) does not on its face require a designation in writing, that that statute has been amended and/or repealed either directly or by implication by Act 78 of 1965 (Ark.Stat. 67--552).
The probate court erred in failing to hold that Section 1 of Ark.Stat. 67--1838 as far as it attempts to make the doing of an act conclusive evidence of another act or of an intention is invalid.
The probate court erred in failing to hold that an account with a savings and loan is a contract and since the signature card (appellants' exhibit A) was never signed by Blanche Box (and in fact, there was no evidence that it was ever seen by her), Blanche Box is not bound by the language on the signature card nor is she an applicant for the opening of a joint account as stated on the signature card.'
We find no merit to the appellants' first two points.
In Willey, Adm'r v. Murphy, 247 Ark. 839, 448 S.W.2d 341, we had under consideration a savings account in a savings and loan association under Ark.Stat.Ann. § 67--1838 (Repl.1966) and also certificates of deposits in the Peoples Bank and Trust Company of Russellville under Ark.Stat.Ann. § 67--552 (Repl.1966). The savings and loan certificate for $8,000 was issued to Pearl Bailey or V. A. Murphy. The evidence was to the effect that both Mrs. Bailey and Mr. Murphy went to the savings and loan association office and opened the account with Mrs. Bailey's money. A deposit slip and signature card were in evidence in that case and the signature card designated Mrs. Bailey and Murphy as joint tenants with right of survivorship. Mrs. Bailey died and the trial court held, in a suit between Murphy and the administrator of Mrs. Bailey's estate, that the savings account belonged to Murphy and we affirmed citing § 67--1838, as follows:
"If the person opening such savings account fails to designate in writing the type of account intended, or if he designates in writing to the association that the account is to be a 'joint tenancy' account or a 'joint tenancy with right of survivorship' account, or that the account shall be payable to the survivor or survivors of the persons named in such account, then such account and all additions thereto shall be the property of such persons as joint tenants with right of survivorship."
On the same date the account was opened with the savings and loan association, Mrs. Bailey and Mr. Murphy went to the People Bank and Trust Company of Russellville and opened an account there through certificates of deposit. The certificates were stamped 'as joint tenants with right of survivorship and not tenants in common.' An executive officer of the bank testified that Mrs. Bailey introduced Mr. Murphy to him and told him she wanted the certificates issued in both names, and that he assumed she wanted it in a normal wording of a joint account with right of survivorship. He said he misplaced Mr. Murphy's name and upon so advising Mrs. Bailey, she again advised him to issue the certificates in her name and the name of Mr. Murphy. The trial court found that the two bank certificates were not issued in the form required by law to vest title in Murphy as survivor. We affirmed the trial court and in doing so quoted § 67--552, as follows:
"If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in 'joint tenancy' or in 'joint tenancy with right of survivorship', or that the account or certificates of deposit shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right to survivorship."
As to the bank certificates in Willey, supra, we relied on Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570, where we said that there must be a substantial compliance with the 'designation in writing' requirement of the Act in order to effect survivorship.
In Cook v. Bevill, supra, we traced the history of § 67--552 as relating to joint accounts in banks and stated that Act 260 of 1937 (§ 67--521 before amendment) had a two-fold purpose. '"' Citing Pye v. Higgason, 210 Ark. 347, 195 S.W.2d 632. We then pointed out in Bevill that Act 78 of 1965, Ark.Stat.Ann. § 67--552 (Repl.1966), 'was our first comprehensive enactment governing joint bank accounts.' In Bevill we then continued:
We are unable to read into Act 78 of 1965, § 67--552, an amendment of § 67--1838. Section 67--552 is under Chapter 5 of the statutes pertaining to 'Powers of Banks' and only banking...
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