Hagerty v. Hagerty
| Decision Date | 13 March 1951 |
| Citation | 52 So.2d 432 |
| Parties | HAGERTY et al. v. HAGERTY et al. |
| Court | Florida Supreme Court |
Felix, Taylor & Kniskern and C. B. Kniskern, Jr., all of Miami, Irving Cypen, Miami Beach, and Alexander T. Hussey, New York City, for appellants.
Mitchell D. Price, Zaring & Florence, Miami, for appellee.
This is a contest between three sons of the testator and the administrator of the estate of a fourth son, on the one part, and the widow and stepmother, on the other part, to determine the ownership of two bank accounts and the responsibility for estate and gift taxes.
The testator deposited money in a Miami bank and he and his wife signed a signature card authorizing the bank to recognize the signature of either on checks for withdrawals and providing furhter: Additional deposits were made and checks drawn on this account both by the testator and his wife.
Later the testate opened an account with a Coral Gables bank in the name of himself and his wife. Here the signature card bore the provision: 'If the account is joint the depositors agree with each other and with the said bank that all sums * * * shall be owned by the depositors jointly, with the right of survivorship, and shall be subject to payment upon the check of either * * * or the survivor * * *.' Additional deposits were placed in this account by testate alone, but no checks were drawn against it either by him or his wife.
The chancellor held both to be the property of the widow on the theory that they constituted estates by the entireties.
Appellants contend that such ruling was erroneous because, no consideration having moved from the wife to the husband, an estate by the entireties could only have arisen by a gift inter vivos; that the essential elements of a gift of that kind were absent; that there was no unity of control; that there was no intent to create an estate by the entireties anyway. It is their thought that the money having been the husband's in the first instance, any title could have passed to the wife only by gift inter vivos in order to establish joint ownership with right of survivorship. On this premise is then based an attack on the gift because it did not have the characteristics of a gift inter vivos.
We see no occasion, however, to dwell on that essential ingredient of a gift inter vivos, the surrender of dominion by the donor. From the very nature of the deposits the husband did not vest in his wife full control of them. Such would have been utterly inconsistent with the unities of possession interest, and person peculiar to estates by the entireties. Andrews v. Andrews, 155 Fla. 654, 21 So.2d 205. We cannot follow the argument that there was no estate by the entireties created because there was no actual gift carrying with it a complete surrender by the donor.
We think the estate may be established by what was agreed upon when the deposits were made and that we should have no particular concern over the fact that all money was deposited by the husband. We find no difference in that respect between the circumstances of this case and a situation where a husband buys realty, paying for it with his own money, and has the title conveyed to himself and his wife. The transfer to her of the property interest is presumed to be a gift, but such gift is not to be measured by rules governing gifts inter vivos. The latter is an outright donation, while the former is the delivery without consideration of an interest in the whole of a joint estate, the entire interest to be received automatically by one spouse upon the death of the other. They are both gifts in the sense that no consideration passes from the donor to the donee, but just there the resemblance seems to end.
Next it is argued that no such arrangement should have been dignified as an estate by the entireties because there was no union of control inasmuch as checks could have been drawn by either husband or wife but need not have been drawn by them jointly. To support this position counsel has cited Marble v. Jackson, 245 Mass. 504, 139 N.E. 442, but we prefer the reasoning in Madden v. Gosztonyi Savings & Trust Co., 331 Pa. 476, 200 A. 624, 630, 117 A.L.R. 904, where this point was discussed and the court said that unity of control would not preclude one spouse from acting for the other. The court thought that when an account was payable on the order of the husband or his wife, there was 'an immediate expression of authority, of agency [of either] to act for both.' We think this is a sensible construction, particularly as applied to the language of the signature cards we have quoted.
It is our conclusion that...
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