Rosecrans v. Eden

• Decision Date: 23 February 1989
• Docket Number: No. 88-85,88-85
• Citation: 14 Fla. L. Weekly 525,538 So.2d 970
• Parties: 14 Fla. L. Weekly 525 Carole ROSECRANS, Appellant, v. Gloria EDEN, as Personal Representative of the Estate of Donald W. Adams, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 970

538 So.2d 970

14 Fla. L. Weekly 525

Carole ROSECRANS, Appellant, v. Gloria EDEN, as Personal Representative of the Estate of Donald W. Adams, deceased, Appellee.

No. 88-85.

District Court of Appeal of Florida Fifth District.

Feb. 23, 1989.

Neva M. Kelaher, of Kane & Williams, P.A., Orlando, for appellant.

Thomas R. Olsen, of Olsen & Olsen, Orlando, for appellee.

COBB, Judge.

This appeal concerns the ownership of a joint checking account held in the names of Donald Adams (deceased) or Carole Rosecrans (appellant). The niece of Donald Adams and personal representative of his estate, Gloria Eden (appellee), claimed below that no joint tenancy was created with right of survivorship.

In 1983, Adams opened a joint money market checking account at Florida National Bank in the name of Donald Adams or Carole Rosecrans in the amount of $15,000.00, whereby either party had the right to sign checks or deposit money without the signature of the other person. When the account was opened, both Adams and Rosecrans signed a signature card which was microfilmed by the bank. A depositor's agreement which contained express language of survivorship (with space for customer's signatures) was given to Adams but was not microfilmed by the bank. The operations manager for Florida National Bank suggested that even if customers did not sign the depositor's agreement form, they would still be joint tenants with right of survivorship, provided they signed the signature card, which would indicate that the customer received the deposit agreement from the bank.

In 1986, Adams died and Eden was appointed personal representative of Adams's estate. Upon the request of Eden, $16,105.69 was ultimately withdrawn and the account closed. According to the testimony of Rosecrans, she considered the account with Adams to be hers. Testimony was also received by Donald Stinebaugh, Adams's friend, who stated that Adams had advised him that he put Carole's name on the account because he wanted Carole to be taken care of.

In 1987, Rosecrans filed a complaint for declaratory judgment to determine who was the rightful owner of the funds contained in the account. A non-jury trial was held and the trial court found for Eden as personal representative of the estate of Donald Adams, deceased. On appeal, Rosecrans contends that the trial court erred because section 658.56, Florida Statutes (1983), creates a presumption that a person depositing funds in a bank account in two or more names intends the creation of a right of survivorship. She argues that no reasonable or clear and convincing proof was presented to rebut the presumption that Donald Adams and Rosecrans intended anything other than a joint account with right of survivorship.

Eden argues that the signature card did not contain survivorship language and, therefore, a joint account with right of survivorship was not created. Furthermore, Eden maintains that the only survivorship language relating to the account was contained in the terms of the deposit agreement and there was no evidence that Adams and Rosecrans had ever signed this particular form. Finally, Eden relates that even if a presumption has been created pursuant to section 658.56, there was clear and convincing proof that a joint account with right of survivorship was not intended by Adams.

Section 665.063(1), Florida Statutes (1983), which is part of the Florida Savings Association Act and section 658.56 ¹ (previously section 659.291), which is part of the Florida Banking Code, were passed by the legislature because of the uncertainty in the law regarding joint accounts with right of survivorship. In Re Estate of Gainer, 466 So.2d 1055, 1057 (Fla.1985); First National Bank of Leesburg v. Hector Supply Company, 254 So.2d 777, 781 n. 1 (Fla.1971); Morgan v. McLaughlin, 260 So.2d 890, 892 (Fla. 2d DCA 1972) (J. Mann, dissenting).

Florida Statute 658.56(1) generally states that unless a depositor expressly rebuts the presumption of survivorship in a signature card or other similar instrument given to and accepted by the bank in connection with the opening or maintenance of an account (in the names of two or more persons), then all such persons will be presumed to have intended that upon the death of any account holder all title to the account will vest in the surviving account holder(s). The purpose for the statute originally enacted (as 659.291) in 1971 was:

CHAPTER 71-205

House Bill No. 507

AN ACT relating to deposits and accounts in banks in the names of two or more persons; amending Chapter 659, Florida Statutes, by adding section 659.291; establishing a presumption of vesting upon death of one and specifying evidence necessary to overcome such presumption; providing for vesting in survivors or survivor upon death of any one, in absence of requisite proof to overcome presumption; and providing an effective date.

The court interpreted section 658.56 in Harrison v. Huber, 463 So.2d 1190, 1191 (Fla. 2d DCA), dismissed, 469 So.2d 749 (Fla.1985) and stated,

As we read the governing statute, some language indicating survivorship is required to invoke the rebuttable presumption of survivorship. See Fortman v. Freedom Federal Savings and Loan Ass'n of Tampa, 403 So.2d 985 (Fla. 2d DCA), petition for review denied, 402 So.2d 609 (Fla.1981) (interpreting Savings and Loan Association rules).

In Fortman, the court affirmed the order of the trial court stating that the actual creation of a joint account with right of survivorship depended upon an execution of a signature joint savings account authorization. The court also held that Freedom Federal did not issue a certificate of deposit in survivorship form and there were no executed documents reflecting survivorship. The court also distinguished Teasley v. Blankenberg, 298 So.2d 431 (Fla. 4th DCA 1974) ² by indicating that no evidence was offered in Fortman to show that under the savings and loan regulations, an account placed in two names would automatically without more, be "maintained" as a survivorship account. 403 So.2d at 988.

We find the statute clear on its face. The presumption of survivorship must be expressly negated, not expressly invoked. The Harrison decision has inverted the statutory purpose. We recognize section 689.15 states that the right of survivorship must be expressly provided for in the instrument which creates the estate in order for right of survivorship to prevail in Florida. This section should not, however, be read together with section 658.56 or the result is simply a waste of legislative effort. Section 689.15 should apply to estates of personal property or real estate, except where a more specific statute controls. In the present context, section 658.56 must control.

In the instant case, Adams and Rosecrans executed a signature card that created the contract. According to bank policy, a deposit...