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Phoenix Title & Trust Co. v. Ella v. King

Supreme Court of Arizona

January 19, 1942

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

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

Page 430

[58 Ariz. 478] 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 [58 Ariz. 479] 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

Page 431

from liability to either of our heirs, executors and administrators. It is understood, however, that no withdrawals drawn [58 Ariz. 480] 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 ...


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