Lowry v. Florida Nat. Bank of Jacksonville

• Decision Date: 16 September 1949
• Citation: 42 So.2d 368
• Parties: LOWRY v. FLORIDA NAT. BANK OF JACKSONVILLE et al.
• Court: Florida Supreme Court

Page 368

42 So.2d 368

LOWRY v. FLORIDA NAT. BANK OF JACKSONVILLE et al.

Supreme Court of Florida, en Banc.

Sept. 16, 1949.

Rehearing Denied Nov. 1, 1949.

Charles A. Robinson, St. Petersburg, for appellant.

Grazier & Fielding and B. M. Skelton, St. Petersburg, for appellees.

BARNS, Justice.

This cause reaches us on appeal from a decree declaring appellee, Administrator c. t. a. d. b. n. of the Estate of Dick Willard Paul, deceased, to be entitled to the contents of a certain safety deposit box in the city of St. Petersburg, Florida, as against Ruth L. Lowry, appellant, who claims the contents as donee of an inter vivos gift from the decedent.

In the fall of 1936, appellant became acquainted with the decedent, an elderly man in his sixties, and in the course of a few months a close friendship developed. Appellant, a widow at the time, had a young daughter who was in ill health and the two became the objects of decedent's kindly affection and benefaction. He was a frequent visitor at the home of appellant and her mother, who resided with her in St. Petersburg.

Late in 1937 the decedent made known to appellant's mother a desire 'to do something' for appellant. The mother asked him not to put her daughter in his will 'or anything that would cause embarrassment.' The decedent replied that 'he thought he could work something out.' Some time thereafter decedent handed to appellant an envelope containing a number of coupon bonds, and together they proceeded to The First National Bank, where appellant rented a safety deposit box and placed the envelope therein. The envelope bore on the outside the writing 'property of Ruth W. Stevens,' which was appellant's name at that time. Mr. Paul, the decedent was deputized to enter the deposit box and both parties had a key to it. The box remained in appellant's name from that time continuously to the date of Mr. Paul's death. Appellant testified that sometimes she would pay the rental and at other times the decedent would pay it.

Appellant testified that from the date when she placed the envelope in the safety deposit box until shortly after Mr. Paul's death in 1944 she did not at any time enter the box. When, after the latter event, she opened the box, there were three envelopes therein; one being the envelope that she had placed in the box some years before and the other two being sealed and addressed, with notes clipped thereto, instructing her to send them to the addressees by registered mail. Although we are not here concerned with these two enevelopes, the record shows that they contained valuables that the decedent desired the addressees to have after his death. The writing on the original enevelope had been amended to real 'property of Ruth W. Stevens Lowry' to conform with appellant's change in name following her marriage in December, 1938. To the outside of the envelope was clipped a note reading: 'Ruth--don't let anyone talk you into investing this--too easy to lose, or cannot get to it when needed. Better still, don't let anyone know about it. Put it in federal building companies or better still in postoffice.'

Upon examination and inventory of the bonds it was found that the interest coupons due after the date of Mr. Paul's death had been clipped. Whether before or after delivery is not disclosed by the record.

The foregoing facts are taken largely from the testimony of Mrs. Lowry and her mother, Mrs. Newman, the only witnesses at the trial.

The Chancellor who presided at the hearing was of the opinion that the testimony, especially that of Mrs. Newman, disclosed an intention on the part of the decedent to make a gift, but that such intention was not to make delivery effective as of the time when he handed the bonds to Mrs. Lowry, but rather, that delivery was to take effect at the time of his death. Accordingly, he entered a decree in favor of plaintiff administrator.

The Chancellor, in arriving at his decision, placed considerable weight on the fact that appellant did not enter the safety deposit box for a period of some seven years, but that during this period the decedent not only entered the box frequently but clipped the interest coupons. Doubtless it was these factors which led the Chancellor to the conclusion that...