Matter of Estate of Ashe

SWANSTROM, Judge,

specially concurring.

I concur in the opinion fully except as to part III C holding that Sam Ashe had no survivorship rights in the joint tenancy account established by Mr. and Mrs. Ashe in Idaho. As to part III C, I concur in the result. I believe that the magistrate correctly applied Idaho law to reach the result he did. Nevertheless, the Bogert rule’s effect in this case is to give a decided advantage to one of two claimants to a decedent’s property. It makes little sense here for one claimant to have the advantage of a presumption that the other claimant can only overcome by clear and convincing evidence. The Bogert rule has tilted the scales of justice too far in one direction. Unfortunately, we are constrained to follow the rule.