Josephson v. Kuhner

• Decision Date: 27 March 1962
• Docket Number: No. C-142,C-142
• Citation: 139 So.2d 440
• Parties: Norton JOSEPHSON, as Ancillary Administrator of the Estate of J. George Kummer, Jr., a/k/a George Kummer, Appellant, v. Evan T. KUHNER and Thelma J. Kuhner, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 440

139 So.2d 440

Norton JOSEPHSON, as Ancillary Administrator of the Estate of J. George Kummer, Jr., a/k/a George Kummer, Appellant, v. Evan T. KUHNER and Thelma J. Kuhner, his wife, Appellees.

No. C-142.

District Court of Appeal of Florida, First District.

March 27, 1962.

Rehearing Denied April 17, 1962.

Kinsey, Vincent & Pyle, Daytona Beach, for appellant.

Isham W. Adams and William W. Judge, Daytona Beach, for appellees.

RAWLS, Judge.

The decree herein appealed from was entered in an action brought by Norton Josephson, as ancillary administrator of the estate of J. George Kummer, against Evan T. and Thelma Kuhner seeking to recover for the estate, funds of J. George Kummer which in the last days of Mr. Kummer's life had been transferred into joint accounts in the names of J. George Kummer and Evan T. Kuhner with right of survivorship.

Three separate and distinct transfers of bank accounts, each account being in the principal sum of $10,000 are involved in this cause. The appellees insist that the transfers constituted a valid gift with survivorship in appellee, Evan T. Kuhner, while appellant claims that such transfers did not constitute valid gifts. For reasons hereinafter enumerated, we find that the Chancellor erred in holding such transfers to be valid gifts.

The evidentiary matters presented to the Chancellor are important in reaching our decision. ¹ References will sometimes be made to appellee-defendant, Evan T. Kuhner, as 'Kuhner' or as 'donee' and to decedent, J. George Kummer as 'George' or as 'donor'. The factual background is that the alleged donor, J. George Kummer, an eighty-one year old man, was one of five sons in a family of German descent. During their working years all of the brothers had at one time been engaged in the business of retail meat marketing in Butler, Pennsylvania, which was owned by George Kummer and his brother, Fred. George, who had no wife or children, often lived with or visited with other members of the family. George was dependent upon Fred's business acumen for the accumulation of his estate, kept his holdings in Fred's name, and in the fall of 1957, received final settlement of his funds from Fred's estate. For several years prior to his death, George had lived in rooming houses in Pennsylvania during the summer and rented a room from the appellees in Daytona Beach, during the winter.

The administrator adduced testimony from George's family, that in the fall of 1957, George had agreed to spend the winter in Butler with his brother Al, but that after receiving a letter which George described as a 'hot one from his girl friend,' and over his family's protests, he drove to Daytona Beach, Florida; that George took about $30,000 with him; that George was unclean in his habits, was miserly but liked to flash his money and tell about his possessions and savings, registered and posed as a physician, and had other peculiar habits, such as urinating in a water glass and storing same in his bedroom furniture. George rented a room from the appellees and stayed there until March 25, 1958, on which date he was examined by a physician (Dr. Herbert A. King) and was placed in a hospital at Daytona Beach, where he remained until his death on April 27, 1958. During the last ten days of George's life and while confined in the hospital, he signed cards authorizing transfer of three savings accounts into the names of J. George Kummer and Evan T. Kuhner, with right of survivorship. On April 28, 1958, (one day after George's death) Kuhner withdrew the funds from one account and deposited same in accounts in the names of Evan T. Kuhner and his wife, Thelma J. Kuhner, and two days later closed the other two accounts in the same manner.

The signature cards authorizing transfer of the three bank accounts were signed by George Kummer between April 17, 1958, and April 27, 1958. The hospital records reflect that upon admission, George Kummer was described as '* * * a slightly confused dirty old white male with a partially fused left hip who walks with a limp and complains of pain across the low back. He is extremely vague.' During the period of time preceding his signing of the signature cards (March 25--April 17), the hospital records reflect that George Kummer fell out of his bed and injured himself, that on occasions side rails and a fish net were used on his hospital bed, at times that he was 'fairly alert' and at other times confused, sleeping at long intervals, was given percodan tablets (a synthetic agent like codeine), and at times was sitting up and walking with assistance for short periods, and was progressively getting weaker. George signed the several transfer cards during the period April 17--April 27, the latter being the date of his death. During this period a marked difference in his physical and mental condition was revealed by the nurses notes, which in substance reflected that side rails and fish net were used almost continuously, percodan given daily, and a description of George Kummer's condition as 'confused', 'stuporous', 'disoriented', 'shouting', 'calling loudly', 'moaning' and 'groaning'.

The attending physician (Dr. King) testified that even though he had diagnosed George's ailments as 'angina pectoris', 'might well have pernicious anemia', 'arthritis' and 'uremia', and did on April 22 place him on the 'critical list', that he did not expect George to die from these illnesses as suddenly as he did and did not think that George was anticipating death. The physician further testified that even though he had described George as being 'vague', 'confused' and 'senile', that in his opinion George had sufficient mental capacity to take care of his business. On cross examination, the physician testified that he did not know that George Kummer possessed large sums of money; that it was his understanding that money would be put into a bank so Mr. Kuhner could pay George Kummer's medical bills; that he didn't think the man was going to give away his money or do any odd thing, and that it was his understanding that Mr. Kummer planned to live with and 'be taken care of' by Mr. Kuhner.

It was against this background that Evan T. Kuhner arranged for the signing of the transfer cards in each bank account, changing them from the name of J. George Kummer to the names of J. George Kummer and Evan T. Kuhner, with right of survivorship. Significantly, other than medical personnel, the record does not indicate that any person visited or conversed with George Kummer during his hospital confinement, save Evan T. Kuhner and his wife.

After consideration of the proofs presented by each party, the Chancellor entered a final decree dismissing the administrator's complaint.

Appellant raises three points, viz.:

(1) Where a person is named in a joint bank savings account with right of survivorship with a deceased person, is the survivor competent to testify as to the transaction creating the account?

(2) Where three transfers of savings accounts to a joint account with right of survivorship were made within a ten day period prior to death and competent evidence presented showed that during such transfer period the donor could have been disoriented, vague, and confused, did the burden of proof shift from the appellants to appellees to show that the transfers were made during a lucid interval of the donor?

(3) Where it has been shown by uncontradicted competent evidence that two transfers of savings accounts from an individual account to a joint account with right of survivorship, were made for the purpose of paying bills, and a third account was transferred from an individual account to a joint account with right of survivorship, because the donor desired to have the donee's name thereon 'in the event of death', was the presumption that the transfer to a joint account was a gift, sufficiently rebutted so as to set aside said transfers?

The administrator's first point goes to the application of Section 90.05, Florida Statutes 1957, F.S.A., commonly known as the 'Dead Man's Statute', which provides in substance that a person interested in an event cannot testify as to transactions or communications with a decedent. It is appellant's position that the Chancellor erred in considering the testimony of the donee because such testimony violated the Dead Man's Statute. Standing alone, this position is well taken. However, an interested person may waive the provisions of the statute, by opening the door as to communications with the deceased. Ben Kummer, a brother of decedent, an heir at law, and, therefore, an interested person within the terms of the statute ² testified as to the close family relationship between decedent and his brothers, and on direct examination testified as follows:

'Q. Did your brother J. George Kummer ever mention the defendant, Evan T. Kuhner?

'A. Yes he did. We was talking one night out on the bench in the back yard. Got to talking about Evan Kuhner, and he said, 'That guy is a fox. You know what I mean, he's a schurkii.'

'Q. What does that German word that you used mean?

'A. Two-faced.'

Such testimony was clearly directed toward establishing the mental attitude of the donor to the donee and, therefore, constituted a waiver by the interested person of the statutory provisions. To allow an heir at law to testify as above, without permitting the donee to testify as to communications with decedent, would give the heir at a distinct advantage over the other interested party. This jurisdiction has long settled such a proposition in holding that under such circumstances the provisions of the statute are waived. ³ The Chancellor was correct in considering the testimony of the donee.

We now go to the administrator's second and third points, which will be considered together.

In dealing with gifts, this jurisdiction has considered the question of burden of proof in a number of cases, and has held that in some instances the burden rests upon those...