CALIFORNIA TRUST CO v. BENNETT (1948)

Appeal by plaintiff from a judgment for defendant in an action for money had and received.

Charlotte Bennett, deceased, rented a safe deposit box at Security-First National Bank of Los Angeles, referred to as ‘bank,’ on August 14, 1945. She deposited $7,950 in currency therein. The money was her separate property. On August 27, 1945, Charlotte Bennett and her husband, John Bennett, respondent-defendant, signed and delivered to the bank, a co-renter agreement covering the same box. The pertinent provisions of the agreement are these:

‘Co-Rents Agreement (Survivor To Have Exclusive Right Of Access)

‘Date Deposit Box No. 1586

Date Aug 27 '45

‘Security-First National Bank of Los Angeles: Seventh & Grand Branch.

‘The undersigned hereby rent the above numbered safe deposit box subject to conditions and regulations printed on the reverse of the current and any subsequent rental receipt issued to us, to which we agree.

‘We jointly and severally agree with you and with each other that: 1. Right of access to said box shall be had and surrender of same may be made by either of us without consent of or notice to the other. * * * 4. 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. * * * We hereby acknowledge delivery to us of the current rental receipt and of two keys to said safe deposit box.’

Charlotte Bennett died December 1, 1945, leaving John Bennett surviving her. John did not open the box, nor was he present when it was opened, until after the death of Charlotte. He did not pay any of the bank's rental charge for the box. He never discussed the contents of the box with his wife. He did not know what was in the box until December 7, 1945, when he removed the $7,950. Upon the death of Charlotte this money was the sole content of the box.

Appellant, as executor of the will of Charlotte, sued John Bennett to recover the $7,950. The genuineness and due execution of the co-renter agreement was admitted by the answer. Respondent, in his answer, alleged that by the agreement he was vested with the right, title and ownership of the money. At the trial, over the objection of appellant, the court received parol evidence offered by respondent for the purpose of proving that Charlotte intended to and did create a joint tenancy in the $7,950 by the execution of the co-renter agreement. The trial court found that prior to the making of the agreement the money was the separate property of Charlotte; that the contents of the box at the time of her death consisted only of the $7,950, and was held by her and respondent as joint tenants with right of survivorship; that on December 7, 1945, as surviving joint tenant, respondent secured possession of the money, and that upon his wife's death he became the owner thereof. Judgment was for respondent.

Appellant's first assignment of error is that the co-renter agreement did not create an estate in joint tenancy and that the trial court erred in ignoring the parol evidence rule. This assignment is well taken. A co-renter agreement, containing a provision identical with article 4 of the foregoing agreement, was before the court in Security-First Nat. Bank v. Stack, 32 Cal.App.2d 586, 90 P.2d 337. It was there held that the terms of the agreement merely gave the survivor access to the box and possession of the contents; that title to the contents of the box was not affected. To the same effect, Estate of Dean, 68 Cal.App.2d 86, 92, 155 P.2d 901. The co-renter agreement did not create an estate in joint tenancy in the contents of the box.

There is no ambiguity on the face of the agreement. No mistake or imperfection in the agreement was put in issue by the pleadings. The validity of the agreement was not in dispute. It must, therefore, be considered as containing all of the terms agreed upon by the parties; and there can be no evidence of the terms agreed to, other than the contents of the writing. Code Civ.Proc., sec. 1856. The parol evidence rule is not a rule of evidence. It is one of substantive law. It excludes evidence of conversations and negotiations preceding or contemporaneous with the execution of the writing. If such evidence is admitted without objection, it must be ignored. It has no legal force. The writing becomes a single and final memorial of the understanding of the parties. It ‘becomes the contract of the parties.’ Estate of Gaines, 15 Cal.2d 255, 264, 265, 100 P.2d 1055, 1060; Nourse v. Kovacevich, 42 Cal.App.2d 769, 771, 109 P.2d 999; O'Melia v. Adkins, 73 Cal.App.2d 143, 148, 166 P.2d 298; Lifton v. Harshman, 80 Cal.App.2d 422, 432, 182 P.2d 222. It was directly decided in Estate of Gaines, supra, that parol evidence is not admissible and may not be considered to determine the legal effect of an unambiguous co-renter agreement of a safe deposit box.

Although respondent does not make the point with clarity and does not comply with the Rules on Appeal (Rule 15, 22 Cal.2d 12), it seems to be his claim that aside from the co-renter agreement an oral estate in joint tenancy was created between the parties. The only evidence which has any bearing on the question, as set forth by respondent, is this: When Charlotte obtained the co-renter agreement from the bank, the clerk in the safe deposit box department asked her ‘if she wanted the survivor to have the contents of the box if she should pass away,’ and Charlotte ‘said that is what she wanted’; the clerk asked Charlotte ‘at the time she rented the box if she wished anyone else to have access to it, and she said she did. I asked her the relationship and she said it was her husband’; Charlotte and John had a joint tenancy account; because Charlotte's sister wanted her son to have a similar amount Charlotte must have had the same thing in mind for her husband; at the time John signed the agreement Charlotte gave him a key to the box; when Charlotte asked John to sign the agreement, 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.’

‘A joint interest is one owned by two or more persons in equal shares, by a title created by a single * * * transfer, when expressly declared in the * * * transfer to be a joint tenancy, of by transfer from a sole owner to himself and others, * * * when expressly declared in the transfer to be a joint tenancy * * *.’ Civil Code, sec. 683. ‘Every interest created in favor of several persons in their own right is an interest in common, unless acquired by them in partnership, * * * or unless declared in its creation to be a joint interest, as provided in section six hundred and eighty-three, or unless acquired as community property.’ Civil Code, sec. 686. Estates in joint tenancy are frowned upon in this State. Reiss v. Reiss, 45 Cal.App.2d 740, 747, 114 P.2d 718. An estate in joint tenancy in personal property may rest in parol. Young v. Young, 126 Cal.App. 306, 310, 14 P.2d 580. For the creation of an estate in joint tenancy, four unities are required, namely, unity of interest, unity of title, unity of time, unity of possession. Each of these four elements must be present and an absence of any one of them is fatal to the creation of an estate in joint tenancy. Siberell v. Siberell, 214 Cal. 767, 771, 7 P.2d 1003; McDonald v. Morley, 15 Cal.2d 409, 412, 101 P.2d 690, 129 A.L.R. 810. Joint tenants must have one and the same interest accruing by one and the same transfer commencing at one and the same time and held by one and the same undivided possession. 2 Bl.Com., Chase's Ed. 180. By unity of interest is meant that the estate of each tenant must be alike. By unity of title is meant that the estate of each must have been created by the same act. By unity of time is meant that the estates of the tenants must have vested at one and the same period. By unity of possession is meant that each must be seised per my et per tout, by the half, or moiety, and by the whole, i. e. each of them has the entire possession. Ibid, 181, 182. The doctrine of survivorship arises from these unities. To create a joint tenancy there must be some operative words declaring the intention to create. Dalton v. Keers, 213 Cal. 204, 207, 2 P.2d 355; Estate of Hittell, 141 Cal. 432, 435, 75 P. 53.

The court in Re Finley, 103 Cal.App. 694, 284 P. 941, after quoting from Bowen v. May, 12 Cal. 348, to the effect that in order to constitute a joint tenancy in lands such estate must be declared in the conveyance itself, applied the principles we have stated, saying, 103 Cal.App. at page 697, 284 P. at page 942: ‘We have been unable to find an instance where this declaration has ever been questioned or disputed. In fact, in Denigan v. San Francisco Savings Union, 127 Cal. 142, 59 Pac. 390, 391, 78 Am.St.Rep. 35, it is affirmed in substance. There the contest revolved around an account in the defendant bank ‘in the name of ‘Francis and Ellen Denigan, payable to either.’' The court, after referring to the section we have quoted, said: ‘The money deposited by Ellen was up to that time her separate property, and it cannot be said that she then acquired any interest therein; and, if it could be assumed that by reason of the form in which the deposit was made Francis acquired any interest therein, it was acquired at a different time and by a different title from that of Ellen. There was no declaration that the money should be held in joint tenancy, and the words, ‘payable to either,’ placed in the account, take away the claim of a joint interest.' So here, in so far as the money is concerned, there was no transference of title from the appellant to her husband, or vice versa, nor was there a declaration that the fund should thereafter be held by them as a joint tenancy.' See Robinson v. Mutual Sav. Bank, 7 Cal.App. 642, 647, 95 P. 533; Lynam v. Vorwerk, 13 Cal.App. 507, 110 P. 355; Estate of Dean, 68 Cal.App.2d 86, 94, 155 P.2d 901. Civil Code section 683 requires an express declaration to create an estate in joint tenancy. In the evidence here there was no declaration, express or implied, that the contents of the box should thereafter be held by Charlotte and John in joint tenancy. There were no operative words indicating an intention to create an estate in joint tenancy. Unity of interest is lacking. No estate was created in John. He was merely given access and right of possession. Unity of title is absent. Charlotte had title. There was no transfer of any title to John. The most that can be said of the parol evidence is that she indicated a testamentary intent that John should have title upon her death. Unity of time is absent. Estates in Charlotte and John did not vest at one and the same period. Unity of possession did not exist in the sense required for an estate in joint tenancy. Each was not seised by the moiety and by the whole. It is significant that after Mrs. Bennett had explained her purpose and wishes to the clerk the latter furnished her the card which provided that the survivor would have the exclusive right of access and possession of the contents, and not a card which would, upon due execution, create a joint tenancy. An estate in joint tenancy in the contents of the box was not created by the parol evidence. Sears v. Rule, 27 Cal.2d 131, 142, 163 P.2d 443, cited by respondent is not helpful. The court there held that evidence is admissible to show that a husband and wife who took property apparently as joint tenants actually intended it to be community property and that property may be converted to community property by oral agreement. Here there is no evidence of any agreement to transfer title from Charlotte to Charlotte and John as joint tenants.

Without expressly making the the point, respondent suggests that the evidence recited, together with the signing of the co-renter agreement and the delivery of a key to the box by Charlotte to John at the time of the signing of the agreement, was sufficient to constitute a gift by Charlotte to John in joint tenancy of the money in the box. The evidence is not sufficient to establish a gift inter vivos or a gift causa mortis. To effect either, the donor must divest himself completely of control and dominion over the property. To accomplish either, delivery of the property given must be absolute. Mutual Ben. Life Ins. Co. v. Clark, 81 Cal.App. 546, 550, 254 P. 306.

If transfer of dominion or control is postponed to the death of the donor there is no more than an unexecuted and unenforceable promise to make a gift. Beebe v. Coffin, 153 Cal. 174, 177, 94 P. 766; Mutual Ben. Life Ins. Co. v. Clark, supra. In order that a gift inter vivos or causa mortis be made, title must pass to the donee at the time the gift is made. Stout v. McNab, 157 Cal. 356, 360, 107 P. 1005. A gift causa mortis must be ‘made in contemplation, fear, or peril of death.’ Civil code, sec. 1149. As we have said, the evidence does no more than indicate an intention upon the part of Charlotte that upon her death John should have the contents of the box. The language said to have been used by Charlotte was not the expression of a purpose to make a gift in joint tenancy taking effect in praesenti. Yates v. Dundas, 80 Cal.App.2d 468, 182 P.2d 305.

Respondent urges that the delivery of property, the subject of a gift, may be constructive or symbolical. This is true. He then says that Charlotte delivered the key to the box to him; that such constituted symbolical delivery of the contents of the box and effected a gift in joint tenancy, citing Estate of Escolle, 134 Cal.App. 473, 25 P.2d 860. Delivery of the key was made at the time the co-renter agreement was signed. The effect of the delivery of the key must be considered in connection with the agreement which gave John access to the box but did not give him title to its contents. Delivery of the key was for the sole purpose of giving John access to the box and was not a constructive or symbolical delivery of the contents of the box as an element in making a gift. In the Escolle case, the donor, in her last illness, expressly stated that she was making a gift of stock in a safe deposit box. She did it in writing and delivered the key to the box. Later the same day she said she had made a gift of the stock and ‘if I don't die, I want my stock back.’ As all of the other essential elements of a gift causa mortis were present, it was held that delivery of the key to the box constituted symbolical delivery of the stock in the box and that a gift was effected. The case is not in point here. In that case there was an express gift in praesenti. Here there is no evidence of an intent to make a gift in praesenti. Charlotte wanted John to have the contents of the box only ‘if anything happened to her.’ In the present case there is no evidence that Charlotte was in contemplation, fear, or peril of death. The only evidence on the subject is to the contrary. To us the only possible construction of the evidence is that Charlotte did not intend, by the language she used in connection with the execution of the co-renter agreement, to effect a present transfer of title to the money in the box. There is no evidence sufficient to establish a gift in joint tenancy.

The record indicates that respondent's theory in the trial court was that the co-renter agreement, construed in the light of the parol evidence, created an estate in joint tenancy. The implied contentions that the parol evidence established an oral agreement to create such an estate in joint tenancy, and that it also proved a gift, appear to be after-thoughts made for the first time on appeal. The finding that on the death of Charlotte Bennett the contents of the safety deposit box were held by her and respondent as joint tenants with right of survivorship, is without support in the evidence.

Judgment reversed.

VALLÉE, Justice pro tem.

SHINN, Acting P. J., and WOOD, J., concur.