McNulty v. Quackenbush

515 So. 2d 377, 12 Fla. L. Weekly 2607, 1987 Fla. App. LEXIS 10972
CourtDistrict Court of Appeal of Florida
DecidedNovember 12, 1987
DocketNo. 87-1479
StatusPublished
Cited by3 cases

This text of 515 So. 2d 377 (McNulty v. Quackenbush) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McNulty v. Quackenbush, 515 So. 2d 377, 12 Fla. L. Weekly 2607, 1987 Fla. App. LEXIS 10972 (Fla. Ct. App. 1987).

Opinion

PER CURIAM.

This is an appeal from a final order which determined two Sun Bank accounts —a money market account and a checking account — and one IDS Financial Services mutual fund account to be non-probate assets which passed outside a decedent’s estate. We reverse in part, affirm in part, and remand with direction to determine the money market and checking accounts to be assets of the estate and to proceed accordingly.

A review of the transcript from the hearing held to determine whether the accounts were probate assets reveals that after the death of Philip Heyes, the personal representative of the estate, Rea Quackenbush and his wife, Eileen Quackenbush (appellees herein) took for themselves, outside of the estate, $42,815.86 from the Sun Bank money market account. Appellees also paid themselves the sum of $121.60 when they closed the Sun Bank checking account and admit that they used the balance of $4,050.00 in the checking account to pay expenses of the estate and then reimbursed themselves from the estate for such expenditures. Appellees further received $34,082.53 from the IDS mutual fund account.

The personal representative testified that prior to Mr. Heyes’ death, he and his wife had no knowledge that they were named on decedent’s money market account; that although they had signed signature cards, they had paid no attention to what they were signing; that none of their personal funds were ever placed in the money market account; that they never withdrew any funds from the money market account during decedent’s lifetime; that all the income earned on the account was paid to decedent during his life; and that decedent had sole control over the money market account during his lifetime.

Further, the personal representative testified that other than appellees writing the occasional check or making an occasional deposit as a convenience for decedent during his lifetime, decedent retained control over the checking account while he was living; that appellees did not deposit any of their own funds into the checking account; that they wrote no checks for their own benefit from the checking account; and that any interest earned on the checking account during decedent’s life was paid to decedent.

As to the IDS mutual fund account, the personal representative testified that appel-lees neither placed any of their personal funds into such account nor did they withdraw any monies during decedent’s lifetime. Further, the personal representative admitted that appellees received none of the income from the fund during decedent’s lifetime and appellees exercised no control over the monies in the fund as decedent had sole control over those monies.

The record shows that the Sun Bank money market account signature card introduced into evidence consists of one (1) page which contains an “X” in the box at the bottom marked “Money Market”, but contains no “X” in the box marked “Joint”. The Sun Bank checking account signature card introduced into evidence contains two (2) pages, a front and a back. The front of the checking account signature card contains an “X” in the box marked “Checking”, but no “X” in the box marked “Joint Tenancy With Rights of Survivorship”. The reverse side of said signature card contains the following provision:

If this is a joint account depositors hereby agree, jointly and severally, with each other and with the bank, that all sums [379]*379now or hereafter on deposit to their credit as such joint depositors are and shall be owned by them jointly with right of survivorship and shall be subject to check or receipt of either of them or the survivor.

As to the IDS mutual fund account, the documents introduced into evidence contain no right of survivorship language. However, John Lewis Bellande, the investment salesman who sold the decedent the IDS mutual fund account testified that the decedent had wanted Rea and Eileen Quacken-bush to receive the assets of this investment fund in the event of his death. In addition, Mr. Bellande testified that the investment account was set up as a joint account with right of survivorship as his company had only two types of ownership and a specific request had to be made in order to establish the account as tenants in common — which request was not specifically made by decedent. When asked if “there is any question in your mind that Mr. Heyes wanted them [Mr. and Mrs. Quackenbush] to be the survivors?”, Mr. Bellande answered “None whatsoever. This was absolutely the way he wanted it.” Mr. Bellande further testified that he had also written an annuity for the decedent and that Mr. and Mrs. Quackenbush were listed as the beneficiaries thereof.

The appellant has raised four points on appeal. After considering them all, we opt to discuss three of the four points raised.

I.

First, appellant argues that the trial court erred in finding that the assets in the decedent’s Sun Bank money market account passed outside of the decedent’s estate to appellees on the authority of Teasley v. Blankenberg, 298 So.2d 431 (Fla. 4th DCA 1974), and Seidl v. Estate of Michel-sen, 487 So.2d 336 (Fla. 4th DCA 1986). We agree. Examination of the signature card for said money market account reveals that there is no language establishing a joint account with the right of survivor-ship as was the case in both Teasley and Seidl. Furthermore, the evidence showed that the decedent had sole control of the assets of said account during his lifetime; that appellees made no deposits or withdrawals on the account; and that appellees were not even aware of the existence of said account until after the death of the decedent.

The trial court’s reliance on Teasley and Seidl was inappropriate as those cases dealt with commercial bank accounts that were titled as joint tenancies with the right of survivorship. A review of those cases reveals that they dealt with bank accounts that were specifically set up as joint accounts with rights of survivorship unlike the account herein. In Teasley, the court noted that the

checking account ... was opened on July 26, 1967 in the form of a joint checking account with the right of survivorship.

298 So.2d at 432. In Seidl the court noted that the

original depositor held the title to all the applicable accounts and certificates of deposit solely in her own name, but upon falling ill with cancer was persuaded by a visiting nephew to alter that ownership to create with him joint tenancies with the right of survivorship.

487 So.2d at 336.

A case more factually similar to the instant case is Harrison v. Huber, 463 So.2d 1190 (Fla. 2d DCA 1985), in which

a certificate of deposit was opened at the Palm Harbor office of Sun Bank (a commercial bank) in the names of “James R. Leathers or Frank H. Harrison.” No language concerning survivorship was contained in the certificate of deposit.

Id. at 1190. The trial court therein found the opening of a certificate of deposit in a commercial bank in the names of “James R. Leathers or Frank H. Harrison” without any other language did not create a surviv-orship account. The Second District Court of Appeal reviewed the language of section 659.291, Florida Statutes (1979) (this section was renumbered effective July 1,1980, and is now section 658.56) which states in relevant part:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Herring v. Henderson
670 So. 2d 145 (District Court of Appeal of Florida, 1996)
Rosecrans v. Eden
538 So. 2d 970 (District Court of Appeal of Florida, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
515 So. 2d 377, 12 Fla. L. Weekly 2607, 1987 Fla. App. LEXIS 10972, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnulty-v-quackenbush-fladistctapp-1987.