V. L. Hash, of Phoenix, for appellant.
C. A. McKee, of Glendale, for appellee.
Frank E. Flynn, United States Attorney, for the District of Arizona, Phoenix, Charles B. McAlister, Assistant U. S. Attorney, Phoenix, of counsel.
Phelps, Justice. La Prade, C. J., and Udall, Stanford, and De Concini, JJ., concur.
[70 Ariz. 210] The facts in this case are that one Martin L. Lee in his lifetime purchased 33 U. S. Savings Bonds of a maturity value of $ 25 each. The bonds were paid for by Lee out of his own funds and were by him kept in an envelope numbered 556 which he rented from the Glendale branch of the Valley National Bank and in which he kept all of his valuable papers. All of the bonds except one were registered as follows: "Martin L. Lee, payable on death to Viola Anderson." The other bond is registered in co-ownership as follows: "Martin Lee or Viola Anderson." The bonds were in the bank envelope at the time of Lee's death. After the death of Lee, Viola Anderson who will be referred to hereinafter as plaintiff made demand upon the Valley Bank (Glendale branch) hereinafter called the bank, for delivery of said bonds to her. Upon being refused delivery thereof she brought this action to have the bonds declared to be her property and that she be given possession thereof.
The bank, upon petition, was permitted to deposit its envelope containing the bonds in question in court pursuant to the provisions of section 21-1609, A.C.A.1939, and the cause of action against the bank was thereby dismissed. At the same time the court granted the administrator of the estate of Martin L. Lee, hereinafter called defendant, permission to file an answer in interpleader which he did. In his answer the administrator alleges in substance the facts hereinabove set forth except as to the maturity value of the bonds; alleges that the estate is insolvent; that there were debts outstanding against the estate and that there were no funds with which to pay them. He alleged further that to award plaintiff the bonds would constitute a fraud upon the creditors of the estate; that the alleged interest of plaintiff in the bonds rests upon the promise of deceased to make a gift in the future which is unenforceable. As a further defense he alleges that the right to survivorship of property held jointly by two or more persons has been abolished in Arizona and that plaintiff has no interest in law or in equity to the bonds in question but that they belong to the administrator as representative of the estate of deceased.
The cause was tried to the court without a jury and judgment rendered in favor of plaintiff.
From said judgment defendant appeals and presents the following assignments of error:
1. The trial court erred for the reason that plaintiff had no interest in the bonds as a donee inter vivos or ...