Reiner v. Reiner, 80-1736

• Decision Date: 01 July 1981
• Docket Number: No. 80-1736,80-1736
• Citation: 400 So.2d 1292
• Parties: Margaret REINER and Milton Reiner, Appellants, v. Alfred W. REINER and Dorothy Reiner, Appellees.
• Court: Florida District Court of Appeals

Page 1292

400 So.2d 1292

Margaret REINER and Milton Reiner, Appellants, v. Alfred W. REINER and Dorothy Reiner, Appellees.

No. 80-1736.

District Court of Appeal of Florida, Fourth District.

July 1, 1981.

Rehearing Denied Aug. 7, 1981.

Patrick O'Neal of O'Neal & Booth, P.A., Fort Lauderdale, for appellants.

Richard L. Polin and Robert A. Brown, Fort Lauderdale, for appellees.

HURLEY, Judge.

Appellants challenge a trial court's finding that an inter-family transfer of monies constituted a gift rather than a loan. We believe that the court's decision was based upon an erroneous interpretation of the law and, consequently, we reverse.

Appellant, Margaret Reiner, is the eighty-eight year old aunt of appellee, Alfred Reiner. Margaret resided with Alfred and Dorothy Reiner for several years, first in New Jersey and then in Florida. In February of 1972, Margaret and Alfred opened a joint savings account with a right of survivorship at a Broward County bank. All of the monies deposited into the account were Margaret's. Moreover, Margaret retained the passbook, and Alfred made no deposits or withdrawals other than on one occasion when by accident a sum was withdrawn by the bank and credited against an overdraft by Alfred. As soon as the bank's action was discovered, Alfred deposited money to cover the withdrawal.

In July of 1974, with Margaret's permission, Alfred withdrew $17,500.00 from the savings account and paid off the mortgage on a home which was titled in Alfred's and Dorothy's names. Herein lies the controversy: Margaret claims the transfer was a loan while Alfred says it was a gift.

After a bench trial, the court ruled in favor of Alfred finding that:

The transaction whereby the sum of $17,500.00 was withdrawn from a joint savings account, held in the names of MARGARET REINER and ALFRED W. REINER, with right of survivorship intended, was not a transaction which amounted to a loan by MARGARET REINER to ALFRED W. REINER but was, by the nature of the said savings account, a gift. The Court finds that no loan or mortgage was intended and no unjust enrichment occurred.

We begin by considering the trial court's conclusion that the transfer was a gift because of "the nature of the ... savings account." In Chase Federal Savings and Loan Association v. Sullivan, 127 So.2d 112, 114 (Fla.1960), our Supreme Court, referring to an earlier holding, noted that " 'where a joint bank account with right of survivorship is established with the funds of one person, a gift of the funds remaining in the account at the death of the creator of the joint account is presumed, but ... such presumption may be rebutted.' " Obviously, in the case at bar we are dealing with an allegation of an inter vivos gift, but the principle remains the same, i. e., the existence of a joint account, at most, gives rise to a rebuttable presumption of a gift. For there to be a present inter vivos gift, "there must exist an intention that each party shall have a present, equal right to withdraw the funds." Id. at 114.

The testimony in the case at bar unequivocally shows that the joint account was established for survivorship purposes only and that Alfred did not have the present ability to withdraw funds from the account. Asked why it was a joint account, Margaret Reiner replied, "In case I died, he (Alfred) would have it. In case he died, I would have it." She further testified that she always retained the passbook in her possession. Moreover, Alfred freely admitted that he knew he did not have the ability to withdraw funds without his aunt's permission. In point of fact, and excluding the withdrawal in contention here, Alfred only caused funds to be withdrawn from the...