Sullivan v. Chase Federal Sav. and Loan Ass'n, 59-418

• Decision Date: 10 March 1960
• Docket Number: No. 59-418,59-418
• Citation: 119 So.2d 78
• Parties: George J. SULLIVAN, as Administrator C.T.A. of the Estate of Mary E. Sutton Sullivan, Deceased, Appellant, v. CHASE FEDERAL SAVINGS AND LOAN ASSOCIATION, a Florida corporation, and Selena M. Poster, Appellees.
• Court: Florida District Court of Appeals

Page 78

119 So.2d 78

George J. SULLIVAN, as Administrator C.T.A. of the Estate of Mary E. Sutton Sullivan, Deceased, Appellant, v. CHASE FEDERAL SAVINGS AND LOAN ASSOCIATION, a Florida corporation, and Selena M. Poster, Appellees.

No. 59-418.

District Court of Appeal of Florida, Third District.

March 10, 1960.

Rehearing Denied April 18, 1960.

Fuller Warren and Ellen Morphonios, Miami, for appellant.

Evans, Mershon, Sawyer, Johnston & Simmons, Miami, for Selena M. Poster, appellee.

PEARSON, Judge.

The appellant, George J. Sullivan, the administrator C.T.A. of the estate of Mary E. Sutton Sullivan, deceased, appeals from a summary final decree wherein it was held that the defendant, Selena M. Poster, was the owner of a certain savings account. This summary final decree was entered in a cause for declaratory decree brought by the administrator.

There is no question raised as to procedure or the propriety of entering a summary decree under the circumstances of this case. The sole question raised is whether or not the summary decree was properly entered for Mrs. Poster rather than for the appellant.

The account in question was originally opened by Edgar S. Sutton, a former husband of the deceased. On January 21, 1950, Mr. Sutton had changed the account into a joint account in his and his wife's name. Mr. Sutton died and Mary E. Sutton, his wife, became the sole owner of the funds in this account. Thereafter on October 3, 1957, Mary E. Sutton changed the account into a joint account in her name and in that of Selena M. Poster with right of survivorship. The depositions and affidavits clearly showed that Mrs. Sutton wanted Mrs. Poster to have the balance in the account upon her death because Mrs. Poster had been a constant and close friend. Thereafter Mary E. Sutton married George J. Sullivan, but the account remained unchanged. Upon the death of Mary E. Sutton Sullivan her administrator brought the action in which the summary final decree was entered.

The controlling question is one of law. It arose in the following manner. The complaint filed by the administrator was for a decree determining whether he, as administrator, or the defendant, Mrs. Poster, was entitled to the amount in the joint account. The answer of Mrs. Poster admitted the existence of the account and alleged that she was the survivor and the sole owner. Paragraph numbered 9 of her answer raised the question of law to be decided by the court.

'That she denies the allegations of Paragraph 9 of said complaint as the same are stated and affirmatively alleges that said account or the funds deposited therein became her sole property by operation of law upon the death of said decedent; that the said decedent created said joint account with right of survivorship in the names of Mary Sutton and Selena M. Poster with the intent to make a gift to Selena M. Poster of the funds on deposit upon the decedent's death.' [Emphasis added]

The summary final decree was entered upon the basis of the pleadings, the depositions of Mr. and Mrs. Colvin B. Williams, who are relatives of the deceased, and the affidavits of Mrs. J. G. Shulenberger, a neighbor of the deceased, and Dr. Russel H. Poster who is the husband of Mrs. Poster.

In each instance the affidavits and depositions sustained the allegations of paragraph '9' of the answer, that the decedent created the joint account with the right of survivorship in the names of Mary E. Sutton and Selena M. Poster with the intent to make a gift to Selena M. Poster of the funds on deposit upon her death. Nowhere in the record is there any suggestion that the deceased ever intended to make an inter vivos gift of the amount in the account.

The Supreme Court of Florida has determined 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 that such presumption may be rebutted. Spark v. Canny, Fla.1956, 88 So.2d 307. The presumption has been rebutted in this case by the pleadings, depositions and affidavits to the effect that the sole intent of the creator was to make a gift effective only upon the death of the creator. Therefore the establishment of the joint bank account was an ineffectual attempt to do that which could only be accomplished by last will and testament. Since the evidence in the instant case shows conclusively that the joint bank account was established by Mrs. Sullivan as an attempted testamentary devise, it was error to hold that Mrs. Poster was entitled to the balance in the account at Mrs. Sullivan's death. Spark v. Canny, supra; Murray v. Gadsden, 91 U.S.App.D.C. 38, 197 F.2d 194, 203, 33 A.L.R.2d 554.

The summary final decree is reversed and the cause remanded for the entry of a decree in accordance with this opinion.

Reversed.

HORTON, C. J., concurs.

MILLEDGE, STANLEY, Associate Judge (dissenting).

I am unable to agree with the court's view of this case and since my own view is held with conviction I feel impelled to state it, however tedious.

My view is that the court has not followed the full implications of Spark v. Canny, Fla.1956, 88 So.2d 307, 311. If the nature of the transaction here involved were before this court as a case of first impression the transaction itself would raise many questions difficult to answer. These questions troubled the Supreme Court. The creator of the joint account with right of survivorship is not by this act relinquishing control. Control is not lost until the death of the donor of the account. As the Supreme Court explicitly noted, this circumstance in the Spark case, which is at odds with the traditional idea of what constitutes a gift, does not prevent the transaction from being treated, presumptively, as a gift inter vivos. This is a good example, I take it, of a court refusing to be prevented by a definition from working out a satisfactory solution without doing violence to basic concepts. In the transaction involved in the Spark case and in this one the present act of the donor in creating the account is the operative fact of transfer to the donee. The death of the donor, nevertheless, is a highly...