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Estate of Evancoe (3/6/98), 955 P 2d 525


     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


In the matter of the estate of     )
                                   )    Supreme Court No. S-7285
ANTHONY M. EVANCO,                 )
                                   )
             Deceased.             )
___________________________________)    Superior Court No.
JOSEPH LYLE EVANCOE, by and        )    3AN-92-320 PR
through his guardian, Joseph       )
C. Evancoe,                        )
                                   )
             Appellant,            )
                                   )    O P I N I O N
     v.                            )
                                   )
EUGENE JULIUS EVANCOE, personal    )
representative of the estate of    )
Anthony M. Evanco,                 )
                                   )
             Appellee.             )    [No. 4952 - March 6, 1998]
___________________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Brian C. Shortell, Judge.


          Appearances: Joseph Charles Evancoe, pro se,
Pittsburgh, Pennsylvania.  Kevin M. Morford, Jensen, Harris & Roth,
Anchorage, for Appellee.


          Before:  Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.  


          MATTHEWS, Justice.
          


          Alaska Statute 13.31.070 validated provisions transfer-

ring at death property contained in certain instruments which do
not qualify as wills.  The question here is whether joint tenancy
designations on stock certificates are covered by AS 13.31.070.  We
answer in the affirmative, because the literal requirements of the
statute are met, and the result is consistent with state policy as
reflected in a subsequent amendment to the statute, which clearly
includes stock certificates.
I.  FACTS AND PROCEEDINGS
          Anthony M. Evanco (decedent) died on March 13, 1992.  His
will directed that his sizable estate be divided equally among his
surviving brothers and sisters.  The will also nominated the
decedent's brother, Eugene J. Evancoe (personal representative), as
the personal representative of the estate. 
          At the time of his death, the decedent owned and was in
possession of a substantial number of stock certificates and some
certificates of deposit.  On their face, these certificates named
both the decedent and another person as owners, designating them as
"joint tenants,""joint tenants with rights of survivorship,"or
with other similar designations.  The superior court found that the
decedent intended to retain control and ownership of the stock
certificates and the certificates of deposit during his lifetime,
but to have ownership pass to the named joint tenants automatically
and outside of probate upon his death.  Neither party contests this
finding on this appeal.
          Shortly after assuming his duties, the personal repre-

sentative delivered each of the stock certificates and certificates
of deposit to the persons designated "joint tenants"on the
certificates.
          Joseph Charles Evancoe (guardian) is the legal guardian
of his father, Joseph Lyle Evancoe, who is one of the decedent's
brothers and a beneficiary under the will.  The guardian filed a
petition in the superior court on behalf of his father seeking to
have Eugene Evancoe removed as personal representative.  In support
of his petition, the guardian alleged that the personal
representative's distribution of the joint tenancy stocks and
certificates of deposit directly to the named joint tenants (i.e.,
outside of probate) was improper.  The guardian also alleged that
the personal representative had committed fraud and various other
improprieties.
          The superior court concluded that the personal
representative's "distribution of the joint tenancy stocks directly
to the named joint tenants was consistent with the provisions of AS
13.31.070 and was valid under Alaska law."  It further concluded
that "Eugene J. Evancoe should not be removed as the personal
representative of the estate of Anthony M. Evanco, and the removal
petition should be dismissed with prejudice."
          The guardian appeals this decision.
II.  DISCUSSION
          The question that we must decide on this appeal is
whether the superior court was correct in its conclusion that
               Eugene J. Evancoe's distribution of the
joint tenancy stocks directly to the named joint tenants was
consistent with the provisions of AS 13.31.070 and was valid under
Alaska law.[ [Fn. 1]]

          Generally, a decedent's directions concerning disposition
of his property are invalid unless they are contained in a will.
[Fn. 2] However, at the time of Anthony Evanco's death, Alaska had
adopted a "validating statute,"which declares certain will
substitutes to be nontestamentary and thereby not subject to the
formal requirements of a will.  AS 13.31.070 (current version at AS
13.33.101).  This statute provided in pertinent part:
               (a) Any of the following provisions in an 
insurance policy, contract of employment, bond, mortgage,
promissory note, deposit agreement, pension plan, trust agreement,
conveyance or any other written instrument effective as a contract,
gift, conveyance, or trust is considered to be nontestamentary, and
AS 13.06 - AS 13.36 does not invalidate the instrument or any
provision that

               (1) money or other benefits theretofore
due to, controlled or owned by a decedent shall be paid after the
decedent's death to a person designated by the decedent in either
the instrument or a separate writing, including a will, executed at
the same time as the instrument or subsequently;

               . . . . [or]

               (3) any property which is the subject of
the instrument shall pass to a person designated by the decedent in
either the instrument or a separate writing, including a will,
executed at the same time as the instrument or subsequently.[ [Fn.
3]]

          Initially, we must decide whether AS 13.31.070 applies to
this case.  The guardian argues that the statute should not apply
because: (1) "[The statute] does not currently validate POD
[payable on death] stocks and mutual fund shares"; and (2) the
residual clause in the statute should not be interpreted to
encompass stocks, because stock certificates were "widely used"at
the time of the statute's drafting, and the residual clause is
"logically viewed as a protective device aimed at those incipient
instruments that the enumerated portion fails to cite."
          We find the guardian's argument unpersuasive.  A share of
corporate stock evidenced by a stock certificate can fairly be
regarded as a "written instrument effective as a contract."[Fn. 4] 
See AS 13.31.070(a).  Further, we can think of no policy reasons
for excluding stock certificates from that category.  Additionally,
effective January 1, 1997, AS 13.31.070 was superseded by a
substantially similar provision, AS 13.33.101, which clearly
encompasses stock certificates. [Fn. 5]  When an ambiguous statute
that we have not construed and an unambiguous successor statute can
reasonably be interpreted in a consistent manner, the policy
embodied in the successor statute is a factor that is appropriately
considered in interpreting the old statute. [Fn. 6]  For these
reasons, we conclude that AS 13.31.070 applies to stock
certificates.
          The remaining elements of the validating statute are also
satisfied.  First, the joint tenancy designations on the stock
certificates are "provision[s] that . . . property which is the
subject of the instrument shall pass to a person designated by the
decedent . . . ."  See AS 13.31.070(a)(3). "The primary incident of
joint tenancy is survivorship, by which the entire tenancy on the
decease of any joint tenant remains to the survivors, and at length
to the last survivor."  Black's Law Dictionary 1465 (6th ed. 1990). 
          In addition, the requirement that the instrument be
"effective as a contract, gift, conveyance, or trust"is satisfied. 
See AS 13.31.070(a).  As previously stated, a share of stock may
properly be regarded as a contract between a shareholder and his
corporation.  The joint tenancy designation can appropriately be
characterized as a provision naming a third-party beneficiary.  See
Corbin on Contracts sec. 783 (1951).  Thus, the joint tenancy
designations on the stock certificates were "effective as a
contract."   
          In conclusion, the validating statute applies and
requires that an otherwise valid provision in a stock certificate
be regarded as nontestamentary.  Consequently, we hold that the
joint tenancy designations on the stock certificates in this case
are valid and effective will substitutes.
          AFFIRMED. 


                            FOOTNOTES


Footnote 1:

     The guardian also contends that the superior court erred in
concluding that the certificates of deposit could be distributed to
the named joint tenants.  However, at the time of Anthony's death,
AS 13.31.020(a) (current version at AS 13.33.212(a)) provided in
relevant part that "[s]ums remaining on deposit at the death of a
party to a joint account belong to the surviving party or parties
as against the estate of the decedent unless there is clear and
convincing evidence of a different intention at the time the
account is created."  A bank certificate of deposit designating a
joint tenant is a "joint account."  See  AS 13.31.005(1) (current
version at AS 13.33.201(1)); AS 13.31.005(4) (repealed, sec. 18 ch
75
SLA 1996).  In addition, AS 13.31.030 (current version at AS
13.33.214) provided that "[a]ny transfers resulting from the
application of AS 13.31.020 . . . are not to be considered as
testamentary."  Therefore, we reject this contention.

          Although the guardian also listed several other issues in
his statement of issues, he waived them by failing to discuss them
in the argument section of the brief.  Adamson v. University of
Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991)("[W]here a point is
given only a cursory statement in the argument portion of a brief,
the point will not be considered on appeal.").


Footnote 2:

     Under common law the attempted transfer in this case of stock
certificates would be invalid.  The parties agree that the joint
tenancy designations did not operate as a valid inter vivos
transfer or irrevocable assignment, because the decedent intended
to retain control and ownership of the stock certificates during
his lifetime, and because there was no delivery.  See Neuschafer v.
McHale, 709 P.2d 734, 738-39 (Or. App. 1985) (holding that where
the court determined that the decedent's intention was to "avoid
probate,"placing shares of stock in joint tenancy with rights of
survivorship was not a valid inter vivos gift, and was testamentary
and void); see also Uniform Probate Code sec. 6-201, Official
Comment
(1983) (stating that provisions in a promissory note to pay to
another named person if the payee dies are invalidated by most
states for noncompliance with the statute of wills).  Consequently,
the purported transfer would be treated as testamentary.  Because
the purported transfer does not comply with the formalities in the
statute of wills, it would be invalid, and the stocks would pass
according to the provisions of the will.  See AS 13.11.155 (current
version at AS 13.12.502) (requiring, among other things, signatures
of two people who witnessed the testator sign or acknowledge the
signature on the will).  


Footnote 3:

     We will refer to this statute as the "validating statute."


Footnote 4:

     We have previously noted that "[t]he relationship between a
corporation and its shareholders is primarily contractual."Hanson
v. Kake Tribal Corp., 939 P.2d 1320, 1325 (Alaska 1997).


Footnote 5:

     AS 13.33.101 provides:

               (a) A provision for a nonprobate transfer
on death in an insurance policy, contract of employment, bond,
mortgage, promissory note, certificated or uncertificated security,
account agreement, custodial agreement, deposit agreement,
compensation plan, pension plan, individual retirement plan,
employee benefit plan, trust, conveyance, deed of gift, marital
property agreement, or other written instrument of a similar nature
is nontestamentary.  This subsection includes a written provision
that
               (1) money or other benefits due to,
controlled by, or owned by a decedent before death must be paid
after the decedent's death to a person whom the decedent designates
either in the instrument or in a separate writing, including a
will, executed either before or at the same time as the instrument,
or later;
               . . . . [or]
               (3) property controlled by or owned by
the decedent before death that is the subject of the instrument
passes to a person the decedent designates either in the instrument
or in a separate writing, including a will, executed either before
or at the same time as the instrument, or later. 

(Emphasis added.)  Shares of a corporation's stock evidenced by
stock certificates clearly are "certificated securities,"and
therefore are among the specifically enumerated instruments in the
current statute.


Footnote 6:

          Cf. Hansen v. Stroecker, 699 P.2d 871, 874-75 (Alaska
1985) (stating that where we had never ruled on question of whether
to adopt "wait-and-see"approach as common law rule, and where
legislature had enacted a prospective statute embodying "wait-and-
see"approach, we were influenced by the statute in determining
common law rule applicable to suit filed prior to the effective
date of the statute).