BROWN et al.
NAVARRE et al
Appeal from Superior Court, Maricopa County; Howard C. Speakman, Judge.
Kramer, Morrison, Roche & Perry, L. V. Rhue, and Chas. D. McCarty, all of Phoenix, for appellants.
Lynn M. Laney and Grant Laney, both of Phoenix, for appellees.
Fennemore, Craig, Allen & Bledsoe and Henry W. Allen, all of Phoenix, amici curiae.
Stanford, Chief Justice. La Prade and Morgan, JJ., concur.
Stanford, Chief Justice.
[64 Ariz. 263] We will style the appellants the plaintiffs and appellees, defendants, as they appeared in the trial court.
The two plaintiffs Sue Navarre Brown and Lavage Navarre, are the children of Leonce T. Navarre and Mae Navarre who were divorced. Leonce Navarre received the sum of $ 7,000 in cash in the settlement of the property rights by reason of the divorce. Thereafter he married the defendant Ernestine Navarre. The defendant Mabel Riddle, also known as Mrs. Lawrence Riddle, as we understand the pleadings, is either a sister or sister-in-law of Ernestine Navarre. Leonce T. Navarre was married to the defendant Ernestine Navarre in December, 1943, and Leonce T. Navarre died on October 4, 1944.
[64 Ariz. 264] Leonce T. Navarre rented from the Phoenix Savings Bank and Trust Company of Phoenix, Arizona, a safety deposit box. Later the lease agreement for the box was amended to include the name of defendant Mabel Riddle. The following language appears in the lease agreement:
"It is hereby declared that all property of every kind, at any time heretofore or hereafter placed in said box, is the joint property of both lessees and upon the death of either passes to the survivor."
Two keys were given by the bank to the box in question, one to Leonce T. Navarre and one to Mabel Riddle. Each had access to the box independently of the other. The box contained the following properties:
Two $ 25 War Savings Bonds issued to Lawrence Leonard Riddle or Mabel G. Riddle.
One $ 250 War Savings Bond issued to Leonce T. Navarre, payable on death to Mrs. Mae Navarre.
A life insurance policy issued to Mabel G. Wolfe, payable to Lawrence Leonard Riddle.
A government life insurance policy issued by the United States to Lawrence Leonard Riddle.
$ 6400 in United States Currency.
$ 3.90 in war savings stamps.
The birth certificate of Lawrence Leonard Riddle.
Upon the death of Leonce T. Navarre, Ernestine Navarre applied for letters of administration of his estate and represented in his petition that the value of his estate did not exceed $ 400.
Mabel Riddle executed a power of attorney to Ernestine Navarre authorizing the latter to open the safety deposit box and remove the contents. Apparently the amount of cash on hand in the bank in the safety deposit box at the time of the death of Leonce T. Navarre was $ 6400, and the
two plaintiffs herein, as children of said Leonce T. Navarre, claim said sum as a part of their father's estate and that the same should also be subject to administration.
It is the claim of defendants Ernestine Navarre and Mabel Riddle that said sum belongs to Mabel Riddle and that she may give it to Ernestine Navarre, or do as she likes with it.
The complaint in this case was filed in the early part of January, 1945. On the 16th day of January, 1945, defendants filed a motion for summary judgment, and supporting said motion was an affidavit by H. J. Coerver, chairman of the Board of Directors of the Phoenix Savings Bank and Trust Company. Thereafter the trial court rendered its judgment in favor of the defendants. From said judgment the plaintiffs take this appeal.
Plaintiff's sole assignment of error is:
"The trial court erred in granting defendants' motion for summary judgment, and [64 Ariz. 265] in rendering judgment in their favor thereon, because (1) the facts alleged in the verified complaint, and as supplemented by the affidavit filed in support of the motion for summary judgment, do not entitle the defendants to judgment in their favor, and (2) the intent to create a joint ...