Matter of Estate of Ashe

BAKES, Chief Justice.

In this probate proceeding, Sam Ashe, the husband of the deceased Esther Ashe, filed a petition which sought (1) to classify a certain brokerage account as a joint tenancy, and thus petitioner’s separate property as the surviving tenant, and (2) to classify certain real property as community property. The deceased’s children by a prior marriage, Jack Hurt et al., filed a response which sought (1) to classify the brokerage account as community property and thus subject to the provisions of the deceased’s will which left the deceased’s share to them, and (2) a determination decreeing that the real property had previously been effectively deeded to Jack Hurt and therefore was neither community property nor a part of the deceased’s estate. After a magistrate’s hearing, plaintiff Ashe’s petition was denied. On appeal, the district court upheld the magistrate’s decision. On further appeal, the Idaho Court of Appeals affirmed. Ashe v. Hurt, 114 Idaho 70, 753 P.2d 281 (Ct.App.1988). We granted review only as to the decision denying petitioner’s claim that the brokerage account was his separate property. Following the original argument, the case was set for reargument to address additional issues discussed more fully below.

The factual background of this case is fully and accurately set out in the Court of Appeals opinion. See Ashe v. Hurt, 114 Idaho 70, 753 P.2d 281 (CtApp.1988). In sum, this case involves a joint tenancy account established between a husband and wife from funds which were the community property of the spouses.¹ The trial court (magistrate) held that Sam Ashe had the burden of proving by clear and convincing evidence that Esther intended the creation of a joint tenancy with right of survivor-ship in order to change the community nature of the funds which went into the account to joint tenancy. The magistrate concluded that Sam Ashe had not met his burden of proof. The magistrate found that “the burden of proof is not sustained that Esther knowingly and intentionally elected the joint tenancy account with right of survivorship. Specifically, the court finds that Sam Ashe made the decision and Esther merely acquiesced.” The magistrate made that finding after noting that “Esther did not have the necessary legal knowledge and was furnished with insufficient information to have caused her to believe that signing the joint tenancy agreement would override her intent to dispose of her one-half of the property in her will.” The district court and the Court of Appeals affirmed the trial court’s findings and its legal conclusions on appeal.

We granted appellant’s (Ashe’s) petition for review based upon his request that this Court reconsider our case of In re Estate of Bogert, 96 Idaho 522, 531 P.2d 1167 (1975), and the rule that requires clear and convincing evidence to establish the intent of the parties to a joint tenancy account. Following argument, we requested the parties to brief and to address on reargument the issue of “whether § 15-6-104 of the Uniform Probate Code as adopted by Idaho, is applicable to the account in this case,” and it is this issue which we first address.²

I

I.C. § 15-6-104 reads in pertinent part:

15-6-104. Right of survivorship. — (a) Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent if an intent to give the account can be shown by the surviving party or parties____ (Emphasis added.)

I.C. § 15-6-101 defines “account” as follows:

(1) “Account” means a contract of deposit of funds between a depositor and a financial institution, and includes a checking account, savings account, certificate of deposit, share and other like arrangement. (Emphasis added.)

I.C. § 15-6-101(3) defines “financial institution” as “any organization authorized to do business under state or federal laws relating to financial institutions, including, without limitation, banks and trust companies, savings banks, building and loan associations, savings and loan companies or associations, and credit unions.” (Emphasis added.)

Construing these same provisions in Bogert, we held in part that “a stock brokerage firm which is handling a brokerage account for a person investing in stocks cannot be fairly construed to be a “financial institution’____”

Ashe contends that the holding in Bogert is inapposite because the account in the present case is unlike the “simple stock account” at issue in Bogert. Ashe contends that his cash management account with Merrill Lynch falls within the meaning of “account” as that term is defined by 15-6-101(1), because it included a checking account, VISA cards and a savings account in addition to brokerage account services. Ashe argues further that Merrill Lynch is a “financial institution” as the term is defined in I.C. § 15-6-101(3) because the list of financial institutions in that provision, while not including stock brokers, is not exhaustive; and that Merrill Lynch “is an organization authorized to do business under state and federal laws relating to financial institutions.”

After carefully reviewing the entire record in this case, we are unable to discover sufficient evidence of the nature of the business structure of the Cash Management Account involved here, and any “state and federal laws relating to financial institutions” under which Merrill Lynch is operating its Cash Management Account business in order to come within the meaning of “financial institution.” We emphasize that our holding, does not categorically preclude all future litigants from demonstrating that Merrill Lynch and other stock brokerage firms may indeed be found to be “financial institutions” as contemplated by I.C. § 15-ftfl01(3). We simply find that this record does not establish that claim.

II

Accordingly, I.C. § 15-6-104 is inapplicable to this case, and our decision rests on the rule delineated in Bogert, that the surviving party to the joint account must prove by clear and convincing evidence that the parties to the account intended to make a gift. This is the rule that was applied by the magistrate court and confirmed on appeal. We need not reiterate the detailed analysis provided in the Court of Appeals

opinion on this matter, but simply note our concurrence.

To examine the validity of the rule of Bogert was the initial issue for which we granted review. The common law rules governing the distribution and quantum of proof burdens relative to joint account cases are multivariate. A vortex of controversy and uncertainty has attended every approach to the problem adopted by the various states. Creation of a Joint Tenancy Bank Account With Right of Survivorship, 24 Ark.L.Rev. 361 (1970); Joint Bank Accounts — Search for a Solution, 88 Dick. L.Rev. 631 (1984); Co-ownership of Bank Accounts and Stock Certificates, 6 Okl.L. Rev. 107 (1953). We are not unmindful of the criticisms applied to these-rules and our own rule, but find such criticism insufficiently compelling to depart from a rule now well established in our case law. In re Estate of Bogert, 96 Idaho 522, 531 P.2d 1167 (1975).

The judgment below is affirmed. Costs to respondent. No attorney fees allowed.

BISTLINE, JOHNSON, BOYLE and McDEVITT, JJ., concur.

1 . In the proceedings below a substantial amount of time was spent by petitioner attempting to trace the property in question through the various accounts to prove that its original source was either Sam Ashe’s separate property or the joint tenancy property of Sam and Esther Ashe. The Court of Appeals opinion accurately traces the various account changes to which these funds were subjected. During oral argument to this Court, counsel for appellant Ashe recognized that there was substantial evidence supporting the lower courts’ determination that the account was established with community property, and counsel assumed that for purposes of the review before this Court the property which went into the joint account in question was community property.

2 . In Bogert we stated that "[tjhe first question which must be decided is whether or not I.C. § 15-6-104 is applicable to the stock account in this case." We concluded that I.C. § 15-6-104 was not applicable because the joint stock account in that case was not an "account" as that' term is defined in I.C. § 15-6-101.