Sullivan v. American Tel. & Tel. Co.

• Decision Date: 10 December 1969
• Docket Number: No. 1910,1910
• Citation: 230 So.2d 18
• Parties: Thomas Edward SULLIVAN, Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Inc., and Thomason & McKinnon, Appellees.
• Court: Florida District Court of Appeals

Page 18

230 So.2d 18

Thomas Edward SULLIVAN, Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Inc., and Thomason & McKinnon, Appellees.

No. 1910.

District Court of Appeal of Florida, Fourth District.

Dec. 10, 1969.

Rehearing Denied Jan. 28, 1970.

Robert G. Murrell, of Sam E. Murrell & Sons, Orlando, for appellant.

Gregory Presnell and William H. Robbinson, of Akerman Senterfitt, Eidson Mesmer, Robbinson & Wharton, Orlando, for appellees.

PER CURIAM.

Involved here is the question of ownership of corporate stock upon the death of the purchaser who had caused the shares to be issued in the joint names of herself and her son.

Anna M. Sullivan had a son named Thomas Edward Sullivan and a grandson named Thomas Edward Sullivan, Jr. For a number of years Mrs. Sullivan lived with her son in Chicago where she was employed by American Telephone and Telegraph graph Company, Inc. Through a company stock purchase plan she acquired stock in the company which she caused to be issued in the joint names of herself and her son. Mrs. Sullivan retained the stock certificates in her possession, not only during the time that she lived with her son, but also after she moved to Homestead, Florida in 1955 and lived by herself. With the son's acquiescence such dividends as were received were used by Mrs. Sullivan for her personal expenses.

Twelve days before Mrs. Sullivan died in December, 1964, Thomas E. Sullivan, Jr., the grandson, brought Mrs. Sullivan from Homestead to his home in Orlando. At that time, upon the request of Mrs. Sullivan, the grandson obtained the stock certificates from Mrs. Sullivan's safe deposit box. There were seven certificates representing a total of 300 shares of American Telephone and Telegraph, Inc. Two certificates representing 250 shares were in the name of Anna M. Sullivan and Thomas E. Sullivan, joint tenants, and the remaining five certificates representing 50 shares were in their names 'as joint tenants with right of survivorship and not as tenants in common.' When the grandson took possession of the stock certificates Mrs. Sullivan told him that she had originally intended the stock to go to her son upon her death, but that she had changed her mind and wanted the grandson to have the stock upon her death.

A few days after Mrs. Sullivan's death, the grandson took the stock certificates to the brokerage firm of Thomson & McKinnon requesting that the stock be sold. He furnished the necessary death certificate and executed an affidavit that he was the surviving joint tenant, endorsing the stock as such. The stock was sold and the brokerage firm issued its draft in the amount of $19,830.12, payable to Thomas E. Sullivan as survivor, the grandson obtaining the proceeds of this draft. Shortly thereafter, Thomas E. Sullivan, the son, became aware of the sale of the stock and made demand upon the brokerage firm and American Telephone and Telegraph, Inc. for return of the stock or else indemnification of his loss for their conversion of the stock. The brokerage firm and American Telephone and Telegraph, Inc. then brought this suit for declaratory decree to determine ownership of the stock, naming Thomas E. Sullivan and Thomas E. Sullivan, Jr., as defendants (but not naming as defendant the personal representative of Mrs. Sullivan's estate).

After a non-jury trial the court found that Thomas E. Sullivan, the son, was the person whose name appeared on the stock certificates as the joint tenant.

It further found:

'4. Mrs. Sullivan, until just prior to her death, never exhibited her bonds to her son or grandson. Neither knew how many shares she had. She received all the dividends herself, retained complete custody and possession of the stock.

'5. The son, Thomas E. Sullivan, testified that he gave his mother approximately $700.00 for the purpose of her buying stock in the late 1940's. The Court cannot tie this to any of the stock in question however, and therefore discounts this testimony.

'6. The requisites of an intervivos gift from Anna M. Sullivan to Thomas E. Sullivan, her son, do not exist. It is quite apparent that at the time the bonds were issued it was the intention of Mrs. Sullivan that nothing was to vest until her death. There is no evidence that the transactions surrounding the issuance of bonds conformed with the formal requirements of law relating to the testamentary disposition of property. Therefore the entire transaction as it relates to Thomas E. Sullivan, the son, must fail. (Citations omitted.)

'7. Mrs. Sullivan was living in Dade County, Florida in 1964. At Thanksgiving of that year her grandson, Thomas E. Sullivan went to Miami. The day after Thanksgiving, at his grandmother's request, he picked up her safe deposit box contents. Included therein were the 300 shares of stock in question. At this time, Mrs. Sullivan said that originally she intended her stock to go to her son, but this was no longer her desire. She then indicated that the bonds would go to the grandson, but in so doing she gave special instructions as to their use and ultimate disposition. At this time, Mrs. Sullivan was obviously near death (she died 12 days later). The conversation and publishing of the bonds did not indicate any immediate and absolute gift either. The deceased was again expressing a desire of what to do with her assets upon her death. In effect, she was...