Succession of Miller

378 So. 2d 543, 1979 La. App. LEXIS 3336
CourtLouisiana Court of Appeal
DecidedDecember 11, 1979
DocketNo. 10541
StatusPublished
Cited by2 cases

This text of 378 So. 2d 543 (Succession of Miller) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Succession of Miller, 378 So. 2d 543, 1979 La. App. LEXIS 3336 (La. Ct. App. 1979).

Opinion

CHEHARDY, Judge.

Mildred Margaret Miller died on May 25, 1976 unmarried and without ascending or descending heirs.

Two years before her death, Miss Miller purchased $4,500 of bearer bonds from Schwegmann Brothers Giant Super Markets.

[544]*544Approximately four months before her death, Miss Miller closed an existing savings account containing the sum of $7,599.72 and deposited the identical amount in a new account on the same day in the name of Mildred M. Miller or Mrs. Albertha S. Meyer, her cousin. The passbook indicated “payable to either or survivor.”

One day before the death of Miss Miller, Mrs. Meyer withdrew the funds of the joint account. These and the Schwegmann. bonds were in her possession at the time of Miss Miller’s death.

A document referred to as the decedent’s “last will and testament,” which also read “I leave all that I die possesed [sic] of [to] my cousin, Albertha Screen Meyer,” was not admitted to probate because it did not follow any of the allowable forms prescribed by Louisiana law.

All property belonging to Miss Miller, therefore, was distributed according to the laws of intestate successions, and Mrs. Helen M. Regan, another cousin of Miss Miller, was named administratrix.

Mrs. Albertha S. Meyer filed a rule to traverse the inventory filed herein by the administratrix to eliminate the $7,599.72 cash shown thereon. The administratrix answered and reconvened' asking that the inventory be amended to include $4,500 of Schwegmann Brothers Giant Super Markets bonds.

The trial court held that valid inter vivos donations had not been accomplished and, therefore, ordered the cash and bonds to be included in the decedent’s estate.

The issue presented to this court is whether or not the Schwegmann bonds and the cash withdrawn from the joint account are valid inter vivos donations and, therefore, not part of the decedent’s estate but the property, solely, of Mrs. Meyer.

Mrs. Meyer’s testimony relating to the transfer of the homestead account to her name and the decedent’s name and the subsequent request by Miss Miller from her hospital bed the day before her death do not show the clear donative intent essential to a valid donation inter vivos. According to testimony of Mrs. Meyer the transfer of the savings account funds from the name of Mildred Miller to Mildred M. Miller or Alb-ertha S. Meyer took place at the homestead in the presence of Mrs. Meyer. In this regard she testified:

“Well, the date before it happened she had discussed it with Wilfred and I that we were going down to the homestead and she was going to put what she had in the homestead in both our names. She said, ‘Albertha, I want you to have that.’ I said, ‘As long as you are living it’s yours.’ So, we went down to the homestead. It was nine o’clock, and she discussed it with the lady that she wanted it put in both our names, which she had done. And she was well satisfied and we never made nothing over it and that was it.”

Mr. Meyer testified Miss Miller consulted him for advice on her business affairs and gave the following testimony:

“Q Was it your understanding that Mildred would get whatever interest accrued on this savings account in the homestead?
A Mildred used to get the interest, that’s correct.
Q She also got the coupons from the bonds, is that correct?
A That’s correct.
Q And was it also your understanding that if Mildred ever asked for her money back, for whatever reason, that your wife would give her the money back and wouldn’t insist upon the finality of the donation?
A If Mildred wanted her money back, she would get her money back.”

Testimony relied upon by appellants to substantiate her claim for a donation inter vivos of the homestead funds allegedly took place on May 24, the day preceding Miss Miller’s death. At that time Mrs. Meyer testified that Miss Miller told her:

“Q That’s the day before she died?
A Yes, sir.
Q Was she aware of the fact that you were going down and taking the money?
[545]*545A Sure. When we entered the hospital she told me to go down and get the money out the homestead, and I said, ‘Oh, Mildred, that ain’t necessary. You are not — .’ She said, ‘Al-bertha, I am going to die.’ I said, ‘Don’t tell me that. You are not going to die. You have a long time to live.’ So, near the ending, there, I went down. She told me to go down so I went down.
Q And is there any doubt in your mind but that she knew she had given you the money and you were going to take it out the homestead?
A She knew.”

The mental and physical condition of the decedent, as substantiated by hospital records admitted in evidence casts doubt upon this testimony. These records note that from the time of her admission on May 19, 1976 until her death on May 25, 1976 Miss Miller was in a comatose or semicomatose state and unable to speak or be understood. LSA-R.S. 13:3714 provides that such records shall be accepted as “prima facie proof” of their contents.

Even accepting the testimony of the Meyers as given, the words of Miss Miller do not indicate clear donative intent to irrevocably and presently divest herself of the $7,599.72 in the savings account.

A joint account does not automatically transfer ownership of all of the monies in the account to each of those parties. In Broussard v. Broussard, 340 So.2d 1309 (La.1976), the Court explained that as long as monies remained in a joint account, there could be no automatic transfer of ownership. Indeed, the right to monies in such an account is an incorporeal one, and C.C. art. 1536 would apply; i. e., the monies could only be donated by notarial act, as long as they remained in the account.

Appellant has cited the case of Succession of Tebo, 358 So.2d 337 (La.App. 4th Cir. 1978). Tebo is distinguishable from this case because Tebo concerned a check which had been manually given by the decedent and then cashed by the donee before the donor’s death, rendering the donation complete.

Succession of Palermo, 359 So.2d 1040 (La.App. 4th Cir. 1978), however, in both the factual and legal issues involved, is applicable. In that case there was a joint savings account in the names of a husband and wife. The husband had expressed his intent, shortly before he died, to give all of the monies in the account to his wife. Two days before his death, the'wife withdrew all of the funds and claimed ownership. The court ruled that no inter vivos donation took place because there was no delivery as required for a manual gift under C.C. art. 1539. The court said, in effect, that although the incorporeal right to the monies in the account had been converted, by the withdrawal, into the corporeal movable of cash, the decedent would have then had to have had actual physical possession of this cash himself and subsequently have then turned it over to the donee wife to complete a valid manual gift.

It is our opinion that there was no valid inter vivos donation of funds in the savings account.

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

Related

Succession of Miller
381 So. 2d 1231 (Supreme Court of Louisiana, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
378 So. 2d 543, 1979 La. App. LEXIS 3336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/succession-of-miller-lactapp-1979.