LYNCH v. MURRAY, 139 F.2d 649

HOLMES, Circuit Judge. This appeal involves the title to bank deposits, and is governed by the law of Florida. Its correct decision depends upon the construction of a statute of that state modifying the common law of joint tenancy with the right of survivorship. Prior to her death, Frances Lynch created joint bank accounts in various cities in the name of herself and the appellee. All funds deposited in these accounts originally were the property of Miss Lynch, or came from joint accounts of Miss Lynch and her mother.

Miss Lynch died on May 19, 1942, and on that date sums aggregating more than $30,000 were on deposit in joint accounts in two banks in Miami, Florida. The appellant, decedents administratrix, claimed the funds in behalf of her intestate; Mrs. Murray claimed them by right of survivorship; and both banks filed bills of interpleader. The cases were consolidated and tried before the court without a jury, and judgment was entered for appellee. The administratrix has appealed.

The following material facts, as found by the court below, were clearly proven by the evidence and must be accepted as true: Miss Lynch and the appellee lived together and were intimate friends; each felt toward the other as a sister; and on more than one occasion Miss Lynch stated in public that whatever property she owned she considered Mrs. Murray’s also.

When three of the joint bank accounts were opened, including one of the two here involved, Miss Lynch discussed at length with officers of the banks the nature and legal consequences of joint accounts; and on each occasion she made clear her intention that either she or Mrs. Murray should have the right to draw upon the account, and that upon the death of one of them the entire balance in the account should be the property of the survivor. These statements were admissible as declarations against interest. One of the joint accounts involved was opened in the First National Bank of Miami on November 18, 1941.

At that time Miss Lynch and Mrs. Murray executed an agreement in writing providing that they agreed with each other and with the bank that all sums theretofore or thereafter deposited in the joint account by either party should be owned by Miss Lynch and Mrs. Murray jointly, with the right of survivorship. It was further agreed that no provision of the instrument could be changed, waived, or terminated, except by written notice to the bank signed by both parties. On December 10, 1941, when the other account in controversy was opened in the Little River Bank & Trust Company, Miss Lynch and Mrs.

Murray executed an instrument containing provisions identical with those referred to in the depository agreement at the First National Bank of Miami. Prior to July 1, 1941,

Section 5482 of the Compiled General Laws of Florida provided that the doctrine of the right of survivorship, .in cases of real estate and personal property held by joint tenants, should not prevail in Florida. As of July 1, 1941, and prior to the creation of the joint accounts here in question, an exception was engrafted upon the statute with respect to estates created by a conveyance to two or more persons where the instrument creating the estate expressly provided for the right of survivor-ship. In the case of Cerny v.

Cerny, 11 So.2d 777, the Supreme Court of Florida held that the provisions contained in a bank signature-card (as were the depository agreements here) would not be construed as vesting title or creating a right of survivorship on the part of a joint depositor unless it contained unequivocal language to show that the survivor of two persons having a joint bank account should take title at the death of the other. Under the common law, the doctrine of survivorship was an incident to all joint tenancies.

Growing disfavor with the doctrine caused many states to enact statutes limiting its application to cases where the creation of a joint tenancy with right of survivorship was clearly intended and effectuated in the instrument of conveyance. As we interpret the amendatory statute of 1941, supra, and the plain implication of the Florida Supreme Court in the Cerny case, the State of Florida will recognize and enforce the doctrine of survivorship with respect to joint bank accounts if the terms of the depository agreement unequivocably provide therefor.

Upon this record, the court below did not err in finding that the depository agreement expressly provided for the creation of a joint ownership of the funds on deposit with the right of survivorship. Such right, being clearly intended and effectuated in said agreement, is valid and enforceable under said statute of Florida. The judgment appealed from is affirmed.

Section 689.15 of the Florida Statutes of 1941, F.S.A. § 689.15, provides: “The doctrine of the right of survivorship in cases of real estate and personal property held by joint tenants shall not prevail in 'this state; that is to say, except in cases of estates by entirety, a devise, transfer or conveyance heretofore or-hereafter made to two or more shall create a tenancy in common, unless the instrument creating the estate shall expressly provide for the right of survivor-ship; and in cases of estates by entirety, the tenants, upon divorce, shall become tenants in common.” Thornburg v.

Wiggins, 135 Ind. 178, 34 N.E. 999, 22 L.R.A. 42, 41 Am.St.Rep. 422; Johnston v. Johnston, 173 Mo. 91, 73 S.W. 202, 61 L.R.A. 166, 96 Am.St.Rep. 486; 7 R.C.L. 812. Thornburg v. Wiggins, supra; Farr v. Trustees of Grand Lodge, 83 Wis. 446, 53 N.W. 738, 18 L.R.A. 249, 35 Am.St Rep. 73; 7 RC.L. 813, 814; Anderson v. Andeson, 132 Iowa 744, 110 N.W. 335, 9 L.R.A.,N.S., 217.