Rosser v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

276 A.2d 234, 1971 D.C. App. LEXIS 303
CourtDistrict of Columbia Court of Appeals
DecidedApril 20, 1971
DocketNo. 5560
StatusPublished

This text of 276 A.2d 234 (Rosser v. Merrill Lynch, Pierce, Fenner & Smith, Inc.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosser v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 276 A.2d 234, 1971 D.C. App. LEXIS 303 (D.C. 1971).

Opinion

PAIR, Associate Judge:

This appeal challenges an order of the court below granting summary judgment in an action to recover from a stock broker certain shares of stock or their value.

Appellant is and was, at the time she filed her complaint, a citizen of the State of California. Appellee is a stock broker conducting, in the District of Columbia and in various states, including the States of California and Oregon, a stock brokerage business.

The facts are not in dispute. Commencing sometime in 1959 appellant and [235]*235one Horace R. Skinner, to whom she was then married, maintained with appellee, at its office in Fresno, California, joint account numbered 260-11622 with right of survivorship, to which was credited, at the time this controversy arose, 108 shares of common stock of the Sperry Rand Corporation.

On May 5, 1960, appellant and Horace R. Skinner entered into a Property Settlement Agreement by which, consistent with their expressed mutual wish and desire, they undertook to effect a full and final adjustment of all their property rights. Insofar as it is here pertinent, the agreement provided:

SECOND: That each of said parties shall have an immediate right to dispose of or bequeath by will * * * all property set over to either of the parties hereto under this Agreement.
* # ‡ * i{i
FIFTH: The property of the parties hereto shall be divided between the parties as follows, to wit:.
* * >K * * *
B. The Husband shall receive and there is set aside to him as his sole and separate property the following:
(2) 100 shares of common stock of Sperry-Rand Corporation, held by Merrill Lynch, Pierce, Fenner & Smith, securities brokers, and having a present value of approximately $2,050.00;
:{< ‡ j{< % 5js
ELEVENTH: It is hereby agreed that this Agreement shall be referred to in any * * * Final Decree of Divorce * * * between the parties hereto that may hereafter be entered, and shall be made a part thereof, and shall constitute a full and final settlement of all of the property rights of the parties hereto.

Thereafter, appellant on May 9, 1960, obtained a divorce by a Nevada decree in which

IT [WAS] FURTHER ORDERED, ADJUDGED AND DECREED that that certain Property Settlement Agreement made and entered into by and between the parties hereto on the 5th day of May, 1960, settling all community and other property rights of the parties hereto, be, and the same is hereby allowed, confirmed, ratified and approved, and incorporated by reference herein, as though fully set forth, and the parties hereto, and each of them, are hereby ORDERED to comply with all of the terms and conditions therein contained.

As provided in the Property Settlement Agreement, Horace R. Skinner transferred to appellant all property which, by the FIFTH paragraph thereof, was set aside as her sole and separate property. Likewise appellant transferred to Horace- R. Skinner all property which, by such paragraph, was set aside as his sole and separate property, with one exception. She did not, for reasons which do not clearly appear from the record, assign to Horace R. Skinner her interest in the stock and securities credited to the joint account.

Horace R. Skinner died testate on June 27, 1966, a domiciliary of Hood River, Oregon. By the terms of his will dated February 2, 1961, and which was admitted to probate in a circuit court of the State of Oregon, August 12, 1966, Katharine Parkhurst, the decedent’s sister, of Hood River, Oregon, was named sole beneficiary and executrix of the estate, with whom one Denton G. Burdick was appointed to serve as executor.1

Asserting a right of survivorship to the Sperry Rand stock and other securities [236]*236credited to joint account numbered 260-11622, appellant, after making repeated demands upon appellee at its offices in Fresno, California, and Portland, Oregon, commenced in the court below the action which is the subject of this appeal.

Appellee, by its answer, denied any liability to appellant alleging, inter alia, that pursuant to the Property Settlement Agreement mentioned above all such shares of stock and other securities credited to joint account numbered 260-11622 became, on and after May 5, 1960, the sole and separate property of the late Horace R. Skinner. Appellee then represented that it was holding to the credit of Horace R. Skinner in its account numbered 311— 36053 the shares of stock and other securities theretofore credited to the joint account.

The case was considered and disposed of on cross-motions for summary judgment and the court below on October 5, 1970, found for appellee. We affirm.

Appellant’s principal contention is that, because the late Horace R. Skinner made no demand upon her to execute, pursuant to the provisions of the Property Settlement Agreement, an assignment of her interest in the joint account, upon his death on June 27, 1966, all property rights in the shares of stock and other securities credited to the account passed to her by right of survivorship.

What has apparently escaped the attention of appellant is that, upon entry on May 9, 1960, of the Nevada divorce decree, such property rights in joint tenancy as then obtained were dissolved. Adams v. Adams, 85 Nev. 50, 450 P.2d 146 (1969). See and compare: Benson v. United States, 442 F.2d 1221 (D.C. Cir., 1971) and Sebold v. Sebold, U.S.App.D.C. (No. 23,014, decided February 12, 1971).

Thus, the Nevada divorce decree, which incorporated by reference the Property Settlement Agreement, was thereafter controlling with respect to all property rights of the parties. Adams v. Adams, supra. See also, in this connection, Holm v. Shilensky, 388 F.2d 54, 57 (2d Cir., 1968), where it was said:

* * * [Ujnder Nevada law, when in adjudicatioii in a divorce action a previously-executed separation agreement is ratified, adopted, or approved by the court by reference thereto, the decree or judgment rendered by the court has the same force and effect and legal consequences as if the separation agreement were copied into or attached to the divorce decree. Nevada Rev.Stats. § 123.080(4); see Ballin v. Ballin, 78 Nev. 224, 371 P.2d 32 (1962) (section applies to property settlement agreements as well as support and maintenance agreements).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Davis v. Davis
305 U.S. 32 (Supreme Court, 1938)
Alton v. Alton
347 U.S. 610 (Supreme Court, 1954)
Durfee v. Duke
375 U.S. 106 (Supreme Court, 1963)
Eleanor M. Benson, James A. Travis v. United States
442 F.2d 1221 (D.C. Circuit, 1971)
Ballin v. Ballin
371 P.2d 32 (Nevada Supreme Court, 1962)
Adams v. Adams
450 P.2d 146 (Nevada Supreme Court, 1969)
Wilburn v. Wilburn
210 A.2d 832 (District of Columbia Court of Appeals, 1965)
Wolf v. Wolf
162 A.2d 776 (District of Columbia Court of Appeals, 1960)

Cite This Page — Counsel Stack

Bluebook (online)
276 A.2d 234, 1971 D.C. App. LEXIS 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosser-v-merrill-lynch-pierce-fenner-smith-inc-dc-1971.