California Trust Co. v. Bennett

CARTER, J.

I dissent.

Assuming that the creation of a joint tenancy in personal property must be in writing, I believe that the safe deposit box rental agreement creates an ambiguity as to whether a joint tenancy in the contents (money) of the box was created *700 which permits the use of parol evidence to explain it. It will be recalled that the rental agreement was headed ‘ ‘ Co-Renters Agreement (Survivor to Have Exclusive Right of Access).” (Emphasis added.) The use of the word “survivor” is the common expression used to create joint tenancies. Hence we have some indication that there was an intent to create a joint tenancy. The agreement goes on to provide that the parties each agrees with the other that each has right of access to the box without consent or notice to the other. That is to say, each, to the complete exclusion of the other, may have access to the box, and implicit therein, it is reasonable to assume that he may remove the contents and appropriate same to his own use. In addition, it is provided that “Upon the death of either of us, the survivor is and shall for every purpose be the sole renter of said box, with the exclusive right of access thereto and possession of the contents thereof. . . .” (Emphasis added.) Plainly the survivor has exclusive right of possession. That “exclusive” right would bar the estate of the deceased tenant or a representative thereof from possession. In this connection, it should be noted that the rental agreement expressly provides that it “shall be binding upon the heirs, legatees, devisees, administrators, executors, successors and assigns of each of the undersigned.” (Emphasis added.) That being the case, the right of the exclusive possession in the survivor is binding upon all successors of the deceased. Therefore, no one could ever gam any right to possession without consent of the survivor. If no one but the survivor could have possession or any right to possession, how could any other person effectively become the owner of the contents? The interest in the property would be split with the heirs holding the bare legal title and the survivor having the right to perpetual exclusive possession. Furthermore, it is to be noted that the survivor is to have the exclusive right of possession “for every purpose,” indicating that he has it for the purpose of use and enjoyment to the extent of consumption if he desires.

We must consider the foregoing factors in light of various rules of law. It is presumed “That things which a person possesses are owned by him.” (Code Civ. Proc., § 1963[11].) Thus it is clear that giving the right to “possession” may mean that title was intended to be transferred. A situation somewhat analogous is presented in Woodford’s Ex’rs. v. Woodford, 44 N.J.Eq. 79 [ 14 A. 273 ], where the testator devised the right of possession of property to his wife. The *701 court held that ownership was intended to go to the wife, stating: “It is true that, when he comes to state what he understands to be a widow’s right in her husband’s personal estate, he describes it as a right of possession, but it is quite evident that he uses the word ‘possession’ in the sense of ownership. He meant a possession without limitation as to time. He does not say that her right to possession shall be limited in duration to her life, nor does he say that the share of his personal estate, which he directs shall go into her possession, shall, on her death, go to some other person. There is no gift over. ’ ’

All of the foregoing factors point to a reasonable probability that it was intended by the agreement to create a joint tenancy in the contents of the box—to make a gift of the contents—pass title to them. I am not overlooking the arguments that the agreement was merely intended as one for rental and was primarily to protect the bank; (it is to be noted, however, that the agreement expressly states that it is between the joint holders of the box inter se as well as with the bank); that right of possession does not necessarily mean ownership; and that only mere custody was intended. But those things merely illustrate the inherent ambiguity of the phrasing in the agreement. The words may, or may not, mean that ownership is to be transferred. Prom them alone you cannot be sure. Manifestly, therefore, parol evidence was admissible to explain their meaning.

There is ample parol evidence to show that the decedent intended the rental agreement to create a joint tenancy. To illustrate, the bank clerk testified that when the decedent made arrangements for the joint box: “I asked her [decedent] if she would want the survivor to have the contents of the box, if she should pass away, and she said that is what she wanted.” Defendant testified: “When she [decedent] asked me to sign that card she said if anything happened to her she wished me to have the contents of the box but named no contents or nothing referring to what was in it or should be in it. She naturally had to tell me something when she asked me to sit down and sign a paper. ’ ’

In my opinion, this evidence, coupled with the “Co-Renters Agreement,” was ample to sustain the finding of the trial court that decedent intended the contents of the box to be held in joint tenancy with defendant, and that he became the owner of such contents by virtue of the right of survivorship arising out of such agreement.

*702 The cases relied upon by the majority opinion should not be controlling. In Security-First Nat. Bank v. Stack, 32 Cal. App.2d 586 [ 90 P.2d 337 ], the court gave no consideration and made no mention of a clause such as exists in the instant case making the promises binding upon the executors, heirs and assigns of the parties. Moreover, the rental agreement there was completely wiped out as a joint tenancy arrangement by the execution by the husband and wife of a written agreement expressly terminating all joint tenancy relations after the rental agreement was made. Estate of Dean, 68 Cal. App.2d 86 [ 155 P.2d 901 ], rather than supporting the majority opinion, is to the contrary. The issue there involved was whether the contents of a safe deposit box was held in joint tenancy. There was a rental agreement similar to that involved in the instant case and, while stating that the agreement did not expressly declare that a joint tenancy was created, also holds that: “Considering the caption and the body of the writing together and as a whole, as appellant asserts should be done in order to ascertain the ‘true intention in the minds of the parties,’ it appears that it was not expressly declared on the signature card that the property in the box was to be held in joint tenancy; and it appears further that the writing was uncertain and ambiguous as to whether it was the intention of the parties to create a joint tenancy in the ownership of the contents of the box or to become Co-Renters with the right of joint access to the box and to possession of the contents. ... In the present ease the signature card, ‘standing alone,’ was not sufficient to create a joint tenancy, but was uncertain and ambiguous. ... It appears, contrary to appellant’s contention, that the court received parol evidence, and received documentary evidence in addition to the signature card of January 19th, for the purpose of considering it in determining the intention of the decedent in signing the card. The card, being uncertain and ambiguqus, such evidence was received properly. The evidence was sufficient to support the findings of the court.” (Emphasis added.) The majority opinion gives no reason why parol evidence was held to be properly admitted in the Dean case but not in the case at bar.

I would, therefore, affirm the judgment.

Schauer, J., concurred.

Respondent’s petition for a rehearing was denied April 28, 1949.- Carter, J., and Schauer, J., voted for a rehearing. Edmonds, J., did not participate herein. '