Florida Nat. Bank of Jacksonville v. Gann, 191

• Decision Date: 26 March 1958
• Docket Number: No. 191,191
• Parties: The FLORIDA NATIONAL BANK OF JACKSONVILLE, as Administrator of the Estate of Mary E. Hall, otherwise known as Mrs. John C. Hall, deceased, and Alice Siner, Appellants, v. Emily GANN and Louise Mentzer, Appellees.
• Court: Florida District Court of Appeals

Page 579

101 So.2d 579

The FLORIDA NATIONAL BANK OF JACKSONVILLE, as Administrator of the Estate of Mary E. Hall, otherwise known as Mrs. John C. Hall, deceased, and Alice Siner, Appellants, v. Emily GANN and Louise Mentzer, Appellees.

No. 191.

District Court of Appeal of Florida, Second District.

March 26, 1958.

Ed W. Harris and William E. Allison, St. Petersburg, for appellants.

M. Tom McClure, St. Petersburg, for appellees.

SANDLER, HARRY N., Associate Judge.

This proceeding was instituted by the Florida National Bank of Jacksonville, as administrator of the estate of Mary E. Hall, under the Declaratory Judgment Act, F.S.A. § 87.01 et seq., for the purpose of determining the ownership of two parcels or tracts of real estate. Both tracts or parcels were the property of Mary E. Hall who conveyed them to Elizabeth M. Long, and Elizabeth M. Long, single, on the 15th day of August, 1940, conveyed one tract to Mary E. Hall and Louise M. Mentzer, or survivor, and on December 19, 1940, conveyed the other tract or parcel to Mary E. Hall and Emily C. Gann, or survivor.

Mary E. Hall died intestate on the 4th day of November, 1956, and the bank was appointed administrator. At the time of the respective reconveyances there was in effect Section 5482, Laws of 1927, which provided as follows:

'The doctrine of the right of survivorship in cases of real and personal property held by joint tenants shall not prevail in this state.'

The Legislature of 1941 amended the statute, effective July 1, 1941, F.S.A. § 689-15, as follows:

'That is to say, except in cases of estates by entirety, devise, transfer or conveyance heretofore or hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivorship; and in cases of estates by entirety, the tenants, upon divorce, shall become tenants in common.'

The purpose of the bill is to have the Court determine 'as to whether or not the law in effect in 1940 is still effective as to these conveyances or whether the 1941 statute is retroactive so as to create a valid joint tenancy in these above properties' so that the ownership may be determined.

The three daughters and heirs-at-law of Mary E. Hall, answered the complaint. The answer of Louise M. Mentzer and Alice Siner are to the same effect, to-wit, that they do not know the legal effect of the transactions mentioned in the complaint and request the Court to enter its decision in construing the deeds and the effect thereof. The other daughter and defendant, Emily C. Gann, filed her answer setting up, among other things, that she had rendered valuable services to her mother in taking care of her during her last years and that it was the intention of her mother to compensate her by leaving her the property in Thornton Subdivision and that the taking of title to this property by Mary E. Hall and Emily C. Gann, or survivor, was done by Mary E. Hall as part of her plan to dispose of all her property during her lifetime and for this reason caused her Last Will and Testament, of which the plaintiff bank was executor, to be destroyed. From a decree, of the Chancellor, holding the deeds in question to create a joint tenancy with the right of survivorship, the bank appealed.

Decisive of this appeal is the interpretation or construction of Section 5482, Laws of 1927, which was in effect at the time of the reconveyances and, of course, prior to the amendment. This section does not prevent or abolish the right of survivorship, but rather abolishes the doctrine of the right of survivorship, which is the common law, doctrine or principle applicable to joint tenancy. By the common law an estate acquired in any way except by inheritance, by two or more persons not husband and wife, created a joint tenancy in them, the principal incident of which is the right of survivorship, by which the entire tenancy, on the decease of one tenant, remains to the survivors, and ultimately to the last survivor. To create a tenancy in common, it was necessary to add restrictive or explanatory words, so as to expressly limit the estate to the grantees, to hold as tenants in common and not as joint tenants. Until the policy of the law was changed by statute, it was essential to the creation of an estate in common that there should be something to show an intent that the grantees or devisees should hold by several and distinct titles, or that, instead of a survivorship to one, there should be an inheritance from both or all. Where an estate was given to several persons jointly, without any expressions indicating an intention that it should be divided among them, it was construed as a joint tenancy. Thompson on Real Property, Section 1775.

The common law Judges had at a quite early period commenced to favor joint tenancy as against tenancy in common with the result that by conveyance to two or more persons, with nothing to indicate a contrary intention, a joint...