Tanner v. Robinson

• Decision Date: 02 March 1982
• Docket Number: No. 80-1571,80-1571
• Citation: 411 So.2d 240
• Parties: 33 UCC Rep.Serv. 350 Charles Thomas TANNER, Personal Representative of the Estate of Emma Tanner Childrey, deceased, Appellant, v. Kenneth B. ROBINSON, Appellee.
• Court: Florida District Court of Appeals

Page 240

411 So.2d 240

33 UCC Rep.Serv. 350

Charles Thomas TANNER, Personal Representative of the Estate of Emma Tanner Childrey, deceased, Appellant, v. Kenneth B. ROBINSON, Appellee.

No. 80-1571.

District Court of Appeal of Florida, Third District.

March 2, 1982.

Rehearing Denied April 13, 1982.

Hendricks & Hendricks and Ben E. Hendricks, Jr., Miami, for appellant.

Shutts & Bowen and Phillip G. Newcomm and Gregory P. Borgognoni, Miami, for appellee.

Before BARKDULL, SCHWARTZ and BASKIN, JJ.

SCHWARTZ, Judge.

Emma Tanner Childrey and her nephew, Kenneth B. Robinson, holders of individual accounts at the stock brokerage firm of Shearson Haydon Stone, Inc., opened an additional joint account with rights of survivorship. A few months later, Mrs. Childrey opened another individual account with a Ft. Lauderdale brokerage firm and executed a broad power of attorney, naming Robinson as her agent and attorney-in-fact. ¹ Mrs. Childrey and Robinson also opened still another joint account at the Ft. Lauderdale brokerage firm when it merged with Shearson Haydon Stone.

When Mrs. Childrey became critically ill, Robinson sent a letter to the broker requesting a transfer of the contents to their joint account. It did so. After her death, her personal representative sued to recover the securities then in appellee's possession, asserting, in part, that the transfer had been accomplished through undue influence. The trial court disagreed and entered judgment for Robinson. It referred in support of the result to a letter sent by Mrs. Childrey to the brokerage firm a few months before Robinson's letter arrived. Although the letter could not be located at time of trial, the testimony showed that it contained a direction by the decedent to transfer her individually held stock to the joint account. The court concluded that the letter had evinced Mrs. Childrey's intent to make a gift to Robinson although the formal transfer did not occur until his own letter arrived at the brokerage firm.

We affirm the judgment below on somewhat different grounds than those assigned by the trial court. Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Gatto v. Publix Supermarket, Inc., 387 So.2d 377, 380 at n.4 (Fla. 3d DCA 1980).

Although we place no reliance on the power of attorney to sustain the transfer of Mrs. Childrey's individually held stock to the appellee, ² we hold that her "missing" letter was alone and independently sufficient to convey the stock to Robinson on the rationale that her mailing it to the brokerage firm constituted a constructive or symbolic delivery of the stock in her individual account and thus completed a valid common law gift of those securities. Reynolds v. Maust, 142 Pa.Super. 109, 15 A.2d 853 (1940); 28 Fla.Jur.2d Gifts §§ 14-15 (1981), and cases cited; compare Dodson v. National Title Ins. Co., 159 Fla. 371, 31 So.2d 402 (1947) (letter of instruction to escrow holder insufficient to effect gift of escrow where holder continued to recognize authority of original owner after receipt of letter, and, unlike present case, letter contained no words of intent to make gift). It does not matter-as the trial judge appears to have believed-that the letter did not result in a "delivery" of the stock as provided under Secs. 678.309, 678.313(1), 678.320(1), Fla.Stat. (1979). ³ It seems universally to be held that these provisions of the U.C.C. are not exclusive and do not undercut the validity of a gift of securities which is otherwise effective under common law standards. In Estate of Zaharion v. Security National Bank, 95 Mich.App. 70, 290 N.W.2d 84 (1980), the court said:

Specifically, we are asked to determine whether M.C.L. § 440.8309 ⁴ ... is applicable to gratuitous inter vivos transfers of securities, thereby necessitating actual physical delivery of the stock certificates, or whether the aforementioned provision is inapposite to the case at bar. If so, then under the common law rule relating to inter vivos gifts, either actual or constructive delivery of the shares would suffice to effect a completed gift, assuming that the remaining elements of a gift inter vivos are present.

We conclude that the common law rules relative to such transfers remain undisturbed by M.C.L. § 440.8309. As such, we hold that an inter vivos transfer by gift of any interest in securities is accomplished by either actual or constructive delivery of the same, where donative intent is also present, and where acceptance by the donee may be presumed or is proven directly....

290 N.W.2d at 85. Accord, Ashley v. Ashley, 482 Pa. 228, 393 A.2d 637 (1978); see, Fidelity & Casualty Co. of New York v. Key Biscayne Bank, 501 F.2d 1322 (5th Cir. 1974); see also, In re Estate of Wintermann, 492 S.W.2d 763 (Mo.1973).

Affirmed.

BASKIN, Judge (specially concurring).

Although I agree that affirmance is appropriate, I strongly disagree with the majority's reliance on Mrs. Childrey's missing letter as the foundation for decision. Her letter cannot be considered a gift of securities under either the U.C.C. or common law because elements necessary to show delivery are absent.

Mrs. Childrey's letter did not constitute a gift under the U.C.C. because sections 678.309, 678.313(1), and 678.320(1), Florida Statutes (1979) require that appropriate entries be made in the corporate books, and it is clear those entries were not made following the firm's receipt of her letter.

Mrs. Childrey's letter did not establish a gift under common law either. Common law also requires delivery before a gift is valid. Mrs. Childrey's absent letter was inadequate to establish a gift under common law because Mrs. Childrey maintained her joint interest in the account. Without a surrender of her dominion and control, Kuebler v. Kuebler, 131 So.2d 211 (Fla. 2d DCA 1961); Eulette v. Merrill, Lynch, Pierce, Fenner, & Beane, 101 So.2d 603 (Fla. 3d DCA 1958), divestiture or delivery could not occur. Cf. Crossman v. Naphtali, 160 Fla. 148, 33 So.2d 726 (1948) (no gift of savings account); Dodson v. National Title Insurance Co., 159 Fla. 371, 31 So.2d 402 (1947) (no gift of escrowed deed); Webster v. St. Petersburg Federal Savings & Loan Association, 155 Fla. 412, 20 So.2d 400 (1945) (no gift of retained certificates). The absence of proof of donative intent, delivery, and acceptance precludes a finding of common law gift. Lowry v. Florida National Bank of Jacksonville, 42 So.2d 368 (Fla.1949); Wood v. McClellan, 247 So.2d 77 (Fla. 1st DCA 1971).

It is therefore apparent that the question answered by the majority, that is, whether a common law inter vivos gift of securities may be established when U.C.C. requirements have not been met, is not ripe for decision in this lawsuit because even under common law, no delivery occurred. In the majority's eagerness to extend the rule announced in Estate of Zaharion v. Security National Bank, 95 Mich.App. 70, 290 N.W.2d 84 (1980) to Florida, ¹ it has overlooked the fact that the making of a gift involves a relinquishment of ownership. Mrs. Childrey's letter merely adds Robinson to the account but does not relinquish her interest. Considered by itself, it does not constitute a gift.

A transfer did take place, however, in response to Kenneth Robinson's letter. See Maxcy v. Commissioner of Internal Revenue, 441 F.2d 192 (5th Cir. 1971). An examination of the power of attorney, when read in conjunction with Mrs. Childrey's letter, reveals that it conferred powers sufficient to permit Kenneth Robinson to make a gift to himself.

In determining the authority conferred upon the agent by the terms of the writing expressing it, not merely that writing itself, but letters of the principal to the agent with reference to the execution of the business confided to the agent's care are to be considered, and this whether such letters amount to a modification of the agreement or the conferring of new and additional powers.

2A C.J.S. Agency § 151(c) (1972). Testimony established that in her letter ² to the stock brokerage firm, Mrs. Childrey sought to transfer stock into the account she held jointly with Kenneth Robinson. That testimony supports the trial court's conclusion that Mrs. Childrey intended to transfer the stock and supplies the aid in construing the power of attorney which was absent in Hodges v. Surratt, 366 So.2d 768 (Fla. 2d DCA 1978), cert. denied, 376 So.2d 76 (Fla.1979) and Johnson v. Fraccacreta, 348 So.2d 570 (Fla. 4th DCA 1977).

The trial court correctly held that Kenneth Robinson's letter transferring Mrs. Childrey's stock to his individual account...