dissenting.
I concur with that portion of the dissenting opinion of Justice Bistline in which he points out that this was not a case that was properly triable to a jury. I believe that the opinion of the majority is incorrect to the extent that it is founded on the distinction between jury and court cases when it comes to considering the granting of summary judgment.
More fundamentally, I am unable to accept the rationale of the majority for reversing the summary judgment that was granted by the trial court. The issues stated by Mrs. Parker in her brief on appeal were: (1) whether the trial court erred in granting summary judgment “on the grounds that the investment account agreement was ambiguous” and (2) whether a genuine issue of material fact existed concerning Mr. Parker’s intent that the funds in the account be used to provide for his wife after his death.
In my view, the latter of these two issues is not relevant to the disposition of this case. The important moment in time was when Mr. Parker established the account. His intent at that moment is at issue here, not his intent at any later time, such as when he signed his will after his marriage to Lillie Parker. If he had already established a tenancy in common with his daughters, he could do nothing in his will to reconvert the account to his sole ownership.
As to the first issue stated by Mrs. Parker, the trial court indicated that the ambiguity of the agreement as to whether a joint tenancy or a tenancy in common was intended did not preclude the granting of summary judgment. The trial court concluded that Mr. Parker and his daughters clearly held the account as tenants in common rather than as joint tenants. This construction was the more favorable of the two for Mrs. Parker, since if Mr. Parker and his daughters had held the account in joint tenancy, Mr. Parker’s daughters would have been entitled to the entire account, rather than two-thirds.
Even the direction to Shearson signed by Mr. Parker and his daughters authorizing Shearson to issue checks to Mr. Parker in his single name on his verbal request referred to “our account” and to Mr. Parker and his daughters as “Tenants In Common.” I am unable to conclude that this created a genuine issue of material fact as to Mr. Parker’s intent in establishing the account.
No disputed facts came before the trial court. The only dispute was as to the inferences to be drawn from the facts. Since this was not a case that was triable to a jury, the trial court was entitled to resolve the conflict between the possible inferences from the undisputed facts. Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982). The trial court resolved the conflicting inferences by concluding that the undisputed evidence clearly established that the account was owned in equal portions by Mr. Parker and his daughters as tenants in common. I would affirm the trial court’s decision.