Nocera v. Lembo

• Decision Date: 07 February 1979
• Docket Number: No. 76-280-A,76-280-A
• Citation: Nocera v. Lembo, 397 A.2d 524, 121 R.I. 216 (R.I. 1979)
• Parties: Carmelina NOCERA, Administratrix v. Eva LEMBO. ppeal.
• Court: Rhode Island Supreme Court

Page 524

397 A.2d 524

121 R.I. 216

Carmelina NOCERA, Administratrix v. Eva LEMBO.

No. 76-280-Appeal.

Supreme Court of Rhode Island.

Feb. 7, 1979.

[121 R.I. 219] Kirshenbaum & Kirshenbaum, Alfred Factor, Providence, for plaintiff.

Lembo, DeCesare & Grogan, Donald R. Lembo, North Providence, for defendant.

OPINION

BEVILACQUA, Chief Justice.

Carmelina Nocera (plaintiff), administratrix of her father's estate, brought his action against her sister, Eva Lembo (defendant), to recover funds held in a joint banking account. Before his death, Emilio Ricci (Ricci), their father, had established the account payable to either Emilio Ricci or Eva Ricci Lembo, or to the survivor of them. The defendant attempted to prove that the account was a valid gift In praesenti. To that effect she testified that her father gave her the bankbook before he went to the hospital, where he eventually died. In rebuttal, the plaintiff testified that her father added the name of the defendant to the account to facilitate his own dealings with the bank, particularly as the defendant personally handled their father's transactions.

Sitting without a jury, the trial justice stated that he did not believe defendant when she testified that her father had made her a gift of the bankbook when he went to the hospital. In concluding that defendant had failed to sustain her burden of proving that the bank account was indeed a fully executed inter vivos gift, the trial justice found that the joint account was established for Ricci's convenience and that he intended his three daughters to share equally in his estate after his death. We agree.

The defendant contends that the trial justice erred in not recognizing the existence of the joint bank account as prima facie evidence of a gift. She also argues that the trial justice erred in finding that plaintiff sustained her burden of proving that Ricci established the joint account solely for his own convenience.

It has been our practice not to disturb the findings of fact of a trial justice sitting without a jury unless those findings are clearly wrong, or the trial justice misconceived or overlooked material evidence on a controlling issue. State v. Eckert, R.I., 389 A.2d 1234, 1239-40 (1978); Ambrosino v. Bevilacqua, R.I., 375 A.2d 404, 405 (1977). It is the function of the trial court, not the appellate court, to ascertain the relative merit of testimony introduced at trial. Raheb v. Lemenski, 115 R.I. 576, 579, 350 A.2d 397, 399 (1976). Because the trial justice has the opportunity to see and hear the witnesses, his findings on conflicting evidence are entitled to great weight. Walther v. McOsker, 87 R.I. 386, 392, 142 A.2d 128, 131 (1958).

The law of gifts provides that the burden of establishing a gift inter vivos is upon the one claiming the gift. Generally, the claimant must prove that the donor intended to make a present transfer of exclusive ownership and control over the subject matter of the alleged gift to the claimant. Pearlman v. Campaloni, 96 R.I. 145, 148, 190 A.2d 7, 9 (1963); Walther v. McOsker, 87 R.I. at 393, 142 A.2d at 131. However, the claimant's burden of proof of the alleged gift is palliated when the gift in question is in the form of a joint bank account. In such a case, the form of the account constitutes prima facie evidence of ownership in the survivor upon the death of the other joint owner. Jonek v. Gromada, 111 R.I. 79, 82, 299 A.2d 175, 177 (1973) Citing Flynn v. Byrne, 82 R.I. 48, 53-54, 105 A.2d 800, 803 (1954); See Raferty v. Reilly, 41 R.I. 47, 50, 102 A. 711, 712 (1918).

Prima facie evidence, if unrebutted, is sufficient to satisfy the burden of proof on a particular issue. State ex rel. State Department of Public Health & Welfare v. Hogg, 466 S.W.2d 167, 170 (Mo.App.1971). The form of a jointly held...