Opinion
October 7, 1953 —
November 3, 1953.
APPEAL from a judgment of the county court of Iowa county: JAMES E. O'NEILL, Judge. Reversed.
For the appellant there was a brief and oral argument by John R. Petrus of Highland.
For the respondents there was a brief and oral argument by Harry A. Speich of Mineral Point.
Proceeding was commenced by petition dated August 12, 1953, for a construction of a will of Sophia Gabler. The court determined that certain property, to wit, five postal savings certificates and five certificates of preferred stock in the Iowa County Livestock Marketing Co-operative issued in the name of Sophia Gabler were held by her and her husband in joint tenancy.
The facts established are to the effect that Sophia Gabler, deceased, and William F. Gabler, now deceased, during their lifetime and particularly during the years 1946 and 1947, maintained a joint checking account in the Highland State Bank at Highland, Wisconsin. On August 30, 1946, the husband drew a check on the joint checking account for the sum of $5,000, payable to M. L. Shafer, postmaster at Muscoda, Wisconsin, in payment for ten postal savings certificates. He was then advised that no more than $2,500 of such certificates could be issued to any one person. Accordingly, he then had five certificates issued to his wife, Sophia Gabler, and five certificates issued in his own name. Periodically the certificates were renewed in their individual names. At the time of Sophia Gabler's death, March 10, 1951, she held the five postal certificates which had been so issued in her individual name. It also appears that on October 8, 1947, William F. Gabler drew a check for $1,000 on the joint checking account, payable to Fred Swingle, who was, at the time, an officer of the Iowa County Livestock Marketing Co-operative and was selling stock of the co-operative. Mr. Swingle advised Mr. Gabler that the stock could be issued only in the individual name of the purchaser. Mr. Gabler then purchased, and there was issued to him, five shares of the stock in his individual name and five shares in the name of his wife Sophia Gabler. At the time of the death of Sophia Gabler, there was still standing in her name the five shares of stock theretofore issued to her.
On July 25, 1950, wills were executed by William Gabler and Sophia Gabler, each containing the following paragraphs:
"2. I give and bequeath unto my son, Arthur Gabler, the sum of twenty-one hundred ($2,100) dollars as his full share in my estate, and in addition thereto I hereby cancel as paid in full any and all notes or other evidences of indebtedness that I may have or hold against my said son Arthur Gabler at the time of my death. I make this provision for my said son Arthur Gabler as I consider that he has received his fair share of my estate by virtue of this provision for him and the advancements I have made to him during my lifetime."
"6. That whereas my beloved husband, William F. Gabler, and I, hold our entire estate in joint tenancy with full right of survivorship in the whole thereof, and it being the desire and wish of each of us that on the death of the survivor the estate remaining in the survivor shall on the death of the survivor be distributed in accordance with the terms and provisions of this will; my said husband and I have this day, by mutual agreement and consent drafted reciprocal and identical wills containing the same provisions as this will to the end that we shall know that our said estate shall ultimately be divided in accordance with our mutual plan and agreement as to the division thereof."
The trial court found and determined that it was the intention of Sophia Gabler and her husband to own all of their property in joint tenancy and that Sophia Gabler's will had the effect of establishing a joint tenancy in the five postal savings certificates and the five certificates of preferred stock in the Iowa County Livestock Marketing Co-operative; that therefore Sophia Gabler died seized of no separate estate. The judgment directed that the afore-described certificates be stricken from the inventory in her estate. From such judgment H. Petrus, the assignee of Arthur Gabler, appeals.
We are not presently to decide whether the wills of Sophia Gabler and William F. Gabler limit Arthur Gabler to a single bequest of $2,100. The provisions or agreement in the respective wills were in consideration of the promises of the one to the other. The promises were concurrent. The questions arising out of those circumstances must be resolved in the light and information that guided the makers of each will. Under the facts submitted on this appeal, we find the only issue is as to the existence of joint ownership or joint tenancy in the postal certificates and in the certificates of the Iowa County Livestock Marketing Cooperative issued to Sophia Gabler.
There is no doubt that both Mr. Gabler and Mrs. Gabler intended all their property to be held by them as joint owners or joint tenants. Their bank account was held in joint tenancy, but a severance of the tenancy became effective at the time the funds withdrawn were invested in postal savings certificates and preferred stock certificates of the Iowa County Livestock Marketing Co-operative in their individual names, as described in the statement of facts; and notwithstanding their declared intention to have the joint tenancy continue, they never took the necessary steps to re-establish such status.
At common law, in order to create a joint tenancy in property, it is necessary to have the four unities present, viz., (1) that the interest be created, by one and the same person, (2) that the interest be created by one and the same conveyance, (3) that the interest be created at one and the same time, and (4) that the possession be one and the same. Bassler v. Rewodlinski (1906), 130 Wis. 26, 109 N.W. 1032, 7 L.R.A. (N.S.) 701. However, at common law it is possible to have a joint tenancy in personal property as well as in reality. Dupont v. Jonet (1917), 165 Wis. 554, 162 N.W. 664. Furthermore, a joint tenancy in personal property may be created orally as well as by written instrument. 48 C. J. S., Joint Tenancy, p. 914, sec. 3; Peterson v. Lake City Bank Trust Co. (1930), 181 Minn. 128, 231 N.W. 794.
In the instant case there is no question but that the postal savings certificates and certificates of preferred stock in the Iowa County Livestock Marketing Co-operative, at the time they were issued in the name of Sophia Gabler individually, constituted her separate property and not property owned jointly with her husband. Under the rules applicable to the creation of joint property at common law she could not thereafter by direct act of transfer to her husband create a joint tenancy in said certificates, because her husband would have acquired his interest therein at a different time from that in which she had acquired her interest, and the joint tenancy would not have been created by the same instrument or transaction, and the two parties would have acquired their titles from different persons or parties. However, sec. 230.45, Stats., has changed the rules of common law with respect to creation of joint tenancies between husband and wife. Sub. (2) of said statute provides as follows:
" Any deed, transfer, or assignment of real or personal property from husband to wife or from wife to husband which conveys an interest in the grantor's lands or personal property and by its terms evinces an intent on the part of the grantor to create a joint tenancy between grantor and grantee shall be held and construed to create such joint tenancy, and any husband and wife who are grantor and grantee in any such deed, transfer, or assignment heretofore given shall hold the property described in such deed, transfer, or assignment as joint tenants." (Italics supplied.)
The respondents contend that the provisions of the will of Sophia Gabler, deceased, did create or establish a joint tenancy in said certificate between her and her husband. However, such will does not constitute a " deed, transfer, or assignment" within the meaning of the statute. The will does disclose that Sophia Gabler mistakenly thought that she owned all her property in joint tenancy with her husband, but such mistaken understanding or intention is not sufficient in itself to create a joint tenancy.
By the Court. — Judgment reversed, cause remanded for further proceedings consistent with this opinion.
The following memorandum was filed December 30, 1953:
Counsel for the respondent executors in support of their motion for rehearing complain that our original opinion herein does not dispose of the issues raised as to the construction of the will of testatrix. By our determination that there was no joint tenancy in the postal savings certificates and preferred stock certificates of the Iowa County Livestock Marketing Co-operative issued in the name of testatrix, it necessarily follows that such assets are to be assigned by the county court in accordance with the provisions of the will of testatrix independently of the will of her husband, William F. Gabler.
Any question as to whether the $2,100 legacy of the son, Arthur F. Gabler, is to be paid twice or only once under both wills will not arise in this estate, which concerns only the will of testatrix, but such question may properly be raised for determination in the estate of William F. Gabler, which latter estate is not now before this court.
By the Court. — Motion for rehearing denied with costs.