Maier v. Bean

• Decision Date: 03 August 1966
• Docket Number: No. 6529,6529
• Citation: 189 So.2d 380
• Parties: Robert MAIER, as Executor of the Estate of Edward A. McGrath, deceased, Appellant, v. Ruth C. BEAN, Appellee.
• Court: Florida District Court of Appeals

Page 380

189 So.2d 380

Robert MAIER, as Executor of the Estate of Edward A. McGrath, deceased, Appellant, v. Ruth C. BEAN, Appellee.

No. 6529.

District Court of Appeal of Florida, Second District.

Aug. 3, 1966.

Rehearing Denied Sept. 7, 1966.

George F. Wilsey, of Fisher & Wilsey, St. Petersburg, for appellant.

W. E. Wight, Jr., of Roess, Wight & Burford, St. Petersburg, for appellee.

ALLEN, Chief Judge.

Plaintiff below appeals from a final decree, which declared defendant the exclusive owner of a joint savings account.

In July, 1959, Edward A. McGrath and his wife of 34 years, Jane A. McGrath, opened a savings account at First Federal Savings and Loan Association of St. Petersburg. From April, 1963, to October 5, 1965, the account balance was exactly $10,000.00, and there was no activity therein except for periodic credit and withdrawal of the account's dividends. Jane McGrath died July 10, 1964. The account stood in the name of Edward McGrath only until October 5, 1964.

In June, 1959, defendant Ruth Bean took an apartment across the street from where the McGraths were then living. In addition to being neighbors, Miss Bean and the McGraths became good friends.

In May or June, 1964, the McGraths bought a trailer, located in a trailer park in the northern part of St. Petersburg. After Jane McGrath's death, Ruth Bean adopted the practice of not only visiting with Edward McGrath almost every night after she got through work, but also spending considerable time with him on weekends. Toward the middle of September, Edward McGrath mentioned to Ruth Bean that he planned to change his will. On September 16, 1964, he drew up a new will and made Ruth Bean the beneficiary of his trailer.

On October 2, 1964, while Ruth Bean was again visiting with McGrath at his trailer, he discussed with her his financial circumstances and asked her to marry him; she accepted. McGrath not only advised her of his account at First Federal Savings and Loan, but also told her of his other savings account at Home Federal. He indicated he would have both of these accounts changed into their joint names. In explanations of this intent, McGrath stated he wanted to share with her his life and his worldly possessions.

On Monday, October 5th, McGrath and Ruth Bean went to the Madeira Beach office of First Federal to change the savings account into a joint account with right of survivorship. The branch manager, William Zeunges, had McGrath sign a Notice of Change of Ownership form, and had both McGrath and Ruth Bean sign a signature card. Mr. Zeunges then posted an insert on the face of the passbook indicating the creation of a joint account with right of survivorship in the names of Edward McGrath and Ruth C. Bean.

Mr. Zeunges explained to Mr. McGrath that the use of the account by Miss Bean could 'establish the fact that it was her money as well as his,' that is, 'that it would be both their accounts.' Pursuant to this suggestion, McGrath gave Miss Bean $398.00 cash. She then deposited this amount in this joint account.

After Miss Bean made the deposit, she handed the passbook to Mr. McGrath. McGrath asked her if she did not want to keep it. Miss Bean said, 'No, I don't. You keep it, because you are the man of the house, or will be the man of the house. * * * And you have a place to lock it.' She further testified he had a lock box in his mobile home and she had no place to lock it in her apartment.

On another occasion, McGrath took the account book out of the lock box and asked Miss Bean if she did not want to keep it. Miss Bean kept it for a few minutes and said, 'No, Eddie, it won't be long until I will be over here. Let's keep it here.'

A withdrawal of $100.00 on October 22, 1964, was the only transaction in the account before McGrath's death. Miss Bean drove him to the bank that day. McGrath drew out the money and gave half of it to Miss Bean.

On October 28th McGrath died. Sergeant Kelly took custody of the lock box. The Sergeant testified that Miss Bean identified the passbook as hers, but that she could not have it as he had no authority to release it to her.

The Executor filed suit to recover the money in the account. Before the final hearing, plaintiff filed requests for admission asking, inter alia, whether a $398.00 deposit in the account, purportedly made by the defendant on the advice of the bank, was in fact money given the defendant by the decedent for this purpose. Defendant objected to the requests on the grounds that they were improper in the absence of a waiver by the plaintiff of his protection under the Dead Man's Statute. The objection was overruled by the court on the ground that such requests by plaintiff did constitute such a waiver.

On final hearing, the court, sitting without a jury, found that the joint account with right of survivorship was established with intent of Mr. McGrath, not to make a testamentary disposition of the funds in the account, but rather, in view of his forthcoming marriage to the defendant, intended to make a present gift in contemplation of life.

Appellant-plaintiff presents three points on appeal; discussion of the last two will take place first.

Did the creation of a joint account with right of survivorship pass an inter vivos gift to the defendant-appellee, Miss Bean?

In upholding the right of a survivor to take the balance of a joint bank account upon the death of the joint owner with whose funds the joint bank account was established, Florida courts follow the 'joint tenancy' theory. Chase Federal Savings and Loan Association v. Sullivan, Fla.1960, 127 So.2d 112; Spark v. Canny, Fla.1956, 88 So.2d 307.

Crawford v. McGraw, Fla.1952, 61 So.2d 484, 487, states:

'* * * the opening of a joint bank account with the intention of creating a right of survivorship is a means of creating a joint estate in personal property. * * *'

Justice Robert's opinion in Spark v. Canny, supra, contained the following comment pertinent to the gift facet of this problem:

'It is true, as contended on behalf of Mrs. Canny, that the rules relating to gifts inter vivos cannot be strictly and literally applied in determining whether a joint bank account with right of survivorship has been established. Thus, the very nature of a joint bank account is such that one essential element of a gift inter vivos is missing--that of surrender of dominion and control by the donor--since each party has an equal right to withdraw the funds on deposit. See Hagerty v. Hagerty, Fla.1951, 52 So.2d 432. Nor is the rule as to 'delivery' of the gift applicable in this situation. This is so because the thing given is not the money, in specie, on deposit in the joint bank account; it is a gift of an interest in the funds on deposit equal to that of the donor. But we think that the third essential of a gift inter vivos--that of donative intent--is just as relevant to the question here under discussion as it is in cases involving the establishment of a bank account by a person with his own funds in the name of another. * * *' (Emphasis added.) 88 So.2d p. 311.

In other words, the theory that the object or indispensable document had to be in actuality delivered and accepted has, at least since the Spark case, been discarded.

What primarily needs to be shown in these situations is the donor's intent to give the donee a present right of ownership of a one-half undivided interest in the account.

Once, however, the joint bank account with right of survivorship is established...