Kohler

*931 Opinion

Petitioner Alice L. Kohler brought a proceeding under Probate Code section 851.5 to determine title to funds totaling over $26,500 on deposit at Home Federal Savings and Loan Association (Home Federal) in an account standing in the name James Linwood Collins. Kohler appeals the court’s order denying the petition and decreeing the funds are an asset of Collins’ probate estate.

The hearing on the petition was conducted on stipulated facts. Collins went to the Central Federal Savings and Loan Association (Central Federal) office in Carlsbad on October 11, 1976, and signed an application for individual trustee savings deposit account naming himself as trustee and Kohler as beneficiaiy of the funds remaining in the account at his death. Collins also signed and delivered to Central Federal a sight draft directing Home Federal to pay the balance of his account No. 019-034153-7, $26,597.62 plus accrued interest, to Central Federal for credit to the trustee savings account. At the same time Collins also delivered to Central Federal his passbook which evidenced his ownership of the Home Federal account. Collins had no funds on deposit at Central Federal at that time and made…

The majority opinion, in my view, errs in several respects. The taproot of this errancy is the oft-repeated conclusion that a Totten trust was not created because trustor-trustee Collins “made no deposit” in Central Federal Savings and Loan Association. This conclusion is contrary to the conceded facts, contrary to decisional law of this state and universally recognized scholarly writings.

The resultant opinion violates a most fundamental rule of construction of written documents. It, without sound basis in authority or reason, refuses to enforce the crystal clear written expression of intent of decedent Collins to create a Totten trust.

The Facts

We review the conceded facts in some detail to the end that law and reasoning relevant to this set of facts be applied. The evidence is overwhelming that James L. Collins (Collins), now deceased, intended to establish a Totten trust—a savings account trust with himself as trustortrustee and his sister Alice L. Kohler as beneficiary in the Central Federal Savings and Loan Association of San Diego (Central Federal). He expresses this intent most specifically in writing. Six separate written documents together with the conceded act of…