Opinion
No. CV 05-4007359-S
March 11, 2009
MEMORANDUM OF DECISION ON DEFENDANTS' COUNTERCLAIM AND ON PLAINTIFF'S OBJECTION TO THE DEFENDANTS' BILL OF COSTS
This Court has already entered judgment for the defendants on the plaintiff's complaint. See Transcript signed by this Court in the file.
As for the counterclaim, which is still before this Court, defendants claim one-half of a previous joint account with the decedent, Mary Hager, and the plaintiff, David Kerrigan. The joint account was at the time of death $27,213.30, and the defendants are seeking one-half thereof, $13,606.65 under Connecticut General Statute § 36a-292(a) which provides that the survivor of the joint account shall be liable for one-half of that account to be paid to the decedent's estate when the decedent's estate is insolvent (not having enough funds to pay the debts of the estate).
In Sullivan v. Fantone, 25 Conn.Sup. 248, 250 (1964), the Court summed up the meaning of C.G.S. § 36-3a, which is the predecessor of C.G.S. § 36a-292 as follows: "provides in substance that the surviving owner of a joint bank account is liable for the debts of the last illness, the expenses of settling the estate, and funeral expenses to the extent of his fractional interest, provided the decedent left no other estate sufficient for the payment of such claims." C.G.S. § 36a-292(a) is attached hereto as Exhibit A. [Editor's Note: The referenced exhibit is not included with the reported opinion.]
The plaintiff has responded with the claim that said $13,606.65 is not subject to Connecticut General Statutes § 36a-292(a) because the plaintiff is the beneficiary of a resulting trust, and also that the total amount of $27,213.30 was intended as a gift from the decedent to the plaintiff.
1. The Court does find from the totality of the evidence that the facts support the conclusion that the $27,213.30 was intended by Mary Hager as a gift to the plaintiff.
This was conceded by the defendants in their February 25, 2009 memorandum, page 3. However, at oral argument of this date, March 10, 2009, defendants' attorney questioned whether it was a gift.
Plaintiff cites Saradjian v. Saradjian et al., 25 Conn.App. 441, 414 (1991), which holds that "intent is also a question of fact to be determined by the trier of fact from the evidence that it finds to be credible," citing Lord v. Stavvakis, 6 Conn.App. 161, 162 (1986), which states: "intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which could not reasonably be drawn," citing Whitney v. Whitney, 171 Conn. 23, 33 (1976), and Spatola v. Spatola, 4 Conn.App. 79, 82 (1985). This Court has made a reasonable inference from the evidence, including Mary Hager's comment when she went to Webster Bank and took out of one account $11,000 and added it to the $16,313.30 accounting for the $27,213.30 which is the account subject of this counterclaim. At that time she stated after the transfers at Webster that "now it is clear who should get my money." It is clear from the evidence of the original $16,000 plus balance that account was meant for David Kerrigan, the plaintiff, as a gift and it is also clear that the additional $11,000 plus was also intended as a gift. She set up this account on July 7, 2004 knowing she was dying of leukemia and she did die approximately a week later.
2. Resulting Trust: When property has been acquired and maintained under circumstances that make it inequitable for the holder of the legal title to retain the entire beneficial interest, equity converts him into a trustee . . . the parties would, under these circumstances, share the property in proportion to the contribution of each to the purchase price . . . "when the purchase money for property is paid by one and the legal title is taken in the name of another, a resulting trust ordinarily arises at once, by operation of law, in favor of the one paying the money . . ." Saradjian v. Saradjian, 25 Conn.App. 411, 414 (1991).
In this case, the joint account funded entirely by Mary A. Hager was for the benefit of David Kerrigan, but what is missing from the requirement for a resulting trust is any inequitable circumstances. Having established that the account was a gift to David Kerrigan, Saradjian, supra, states on pages 414-15 that "where the nominal grantee is a natural object of the payer's bounty, the presumption of trust is rebutted, because the law presumes a donative intent." In effect the Saradjian court is saying that if it is a gift, it is not a resulting trust. It has already been established that the $27,213.30 was a gift by the decedent.
This Court sent a memorandum to both counsel asking them to submit a memorandum that, assuming there was a resulting trust or a gift, does that exempt the one-half of the joint savings account mentioned above from the provisions of C.G.S. § 36a-292. No convincing memorandum has been submitted by the plaintiff. The plaintiff cites C.G.S. § 36a-290(b) which merely provides that the subject account is a joint account, but that still does not exempt the joint account from C.G.S. § 36a-292.
C.G.S. § 36a-290(b) states in pertinent part ". . . in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds." By this language it is clear that this statute applies to legal actions between the joint owners, Mary Hager and David Kerrigan. Mary A. Hager was never a party to this action obviously because she was deceased at the time, and, therefore, this case is not between the joint owners of the aforementioned bank account. Accordingly, C.G.S. § 36a-290(b) does not apply to this case.
Plaintiff also cites sections 45a-368, 369 and 370 which limits a beneficiary's share of administrative expenses to his share of assets inherited from the estate. However, it is clear that a joint account in survivorship is not an asset of the estate.
3. The plaintiff also asserts that he is entitled to keep the funds of that account based upon the fact that he was not included in the planning of the funeral. This claim is irrelevant to this action. Since Richard Kerrigan is the executor of the Mary Hagar estate, he had every right to plan the funeral regardless of the wishes of anybody else except the decedent, and there is no evidence that the decedent or anybody else specified that the plaintiff was to be involved in the planning of the funeral.
From the totality of the evidence and all of the above reasons, the estate is entitled to one-half of the $27,213.30 joint account. Accordingly, the Court enters judgment for the defendants on the counterclaim and orders the plaintiff to pay $13,606.65 to the estate of Mary A. Hager through the executor, Richard Kerrigan.
OBJECTION TO THE BILL OF COSTS
The plaintiff has objected to the defendants' Bill of Costs dated February 13, 2009. In particular he objects to the fee of Dr. Kenneth M. Selig as an expert witness for trial preparation and live testimony which totals $6,837.50. Although the Court stated at the time of the decision on the plaintiffs' complaint that Dr. Selig's testimony was critical to the Court's decision in favor of the defendants, the $6,837.50 seems a little bit excessive. Accordingly, the Court exercises its discretion and reduces the total of Dr. Selig's fee to $5,000 resulting in a total cost of $5,389.50 which amount is approved.