Opinion
No. FST CV 07 4011504 S
May 20, 2009
MEMORANDUM OF DECISION
On April 30, 2007, the appellant, Doreen L. Mikoshi, both individually and in her capacity as the executrix, appealed to the Superior Court from the order of the Probate Court on the final accounting, adding the $67,718.42 in the LaJolla Bank account #50-95-20542 (Account) as an asset to the Estate of Vincent J. Cappiello (Estate), the decedent. The appellant filed revised reasons of appeal on August 17, 2007, to which the defendant filed an answer on October 9, 2007. Thereafter, the appellant filed claims of law on December 2, 2008. Upon completion of the trial, the appellant and the respondent, Richard Capiello, filed a post-trial memorandum, respectively, on January 23, 2009. Finally, the respondent submitted a reply brief on February 4, 2009.
The decree of the Probate Court stated "that the Final Account of Doreen L. Mikoshi, Executrix of the State of Vincent James Cappiello, deceased, is hereby allowed, except that the sum of $67,718.42 shall be added to the assets of said Estate by a Supplementary Inventory and shall be distributed one half to the said Doreen L. Mikoshi and one half to Richard Cappiello in accordance with the Will of the decedent."
The appellant's reasons of appeal state that the monies from the Account are "rightfully and properly omitted from the Inventory and Final Account of the fiduciary" for the following reasons: "(a) The appellant had the legal right to withdraw said monies from her joint accounts; or (b) The decedent stated that the funds in the joint account was her money, by gift; or (c) In the event that the monies were improperly withdrawn from said account, should the funds be redeposited, the appellant would have the legal right thereto."
"An appeal from a Probate Court to the Superior Court is not an ordinary civil action. When entertaining an appeal from an order or decree of a Probate Court, the Superior Court takes the place of and sits as the court of probate . . . In ruling on a probate appeal, the Superior Court exercises the powers, not of a constitutional court of general or common law jurisdiction, but of a Probate Court . . .
"The function of the Superior Court in appeals from a Probate Court is to take jurisdiction of the order or decree appealed from and to try that issue de novo . . . Thereafter, upon consideration of all evidence presented on the appeal which would have been admissible in the probate court, the superior court should exercise the same power of judgment which the probate court possessed and decide the appeal as an original proposition unfettered by, and ignoring, the result reached in the probate court." (Internal quotation marks omitted.) Sandford v. Metcalfe, 110 Conn.App. 162, 167-68, 954 A.2d 188, cert. denied, 289 Conn. 931, 958 A.2d 160 (2008).
The appellant's exhibits from trial include the following: the fiduciary's final account (Exh. 1); the objection to the executrix's final accounting (Exh. 2); the certificate of deposit (CD) in the names of Vincent Cappiello and Doreen Mikoshi at the Stamford Federal Savings Bank (Exh. 3); the personal CD passbook insert (Exh. 4); the modification of account card (Exh. 5); the bank statement of the LaJolla Bank joint account (Exh. 6); the deposit transaction dated June 8, 2001 (Exh. 7); the last will and testament of Vincent James Capiello for which he appoints Doreen Mikoshi as the executrix (Exh. 8); copies of the relevant checkbook registers (Exhs. 9-11); the deposition of Michael Brucoli (Exh. 12); and the decedent's loan from the Connecticut National Bank (Exh. 13). Finally, the defendant's exhibit is the succession tax return (Exh. A).
I JOINT ACCOUNT
General Statutes § 36a-290 states in relevant part: "(a) When a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union, in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them. Any such payment constitutes a valid and sufficient release and discharge of such bank, Connecticut credit union or federal credit union, or its successor, as to all payments so made.
"(b) The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds."
Our Supreme Court has held that § 36a-290 provides that "when an account is created in the names of two or more people, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them . . . Thus, under this statute, a bank is authorized to release up to the entire balance of a joint account to each and any co-holder who so demands." (Citation omitted; emphasis in original; internal quotation marks omitted.) Fleet Bank Connecticut, N.A. v. Carillo, 240 Conn. 343, 349-50, 691 A.2d 1068 (1997). "[T]his authorization not only provides protection for payor banks but also recognizes a sufficient property interest in each coholder to warrant characterizing all such deposits as a `debt due' to each coholder." (Internal quotation marks omitted.) Grass v. Grass, 47 Conn.App. 657, 661, 706 A.2d 1369 (1998), citing to Fleet Bank Connecticut, N.A. v. Carillo, supra, 240 Conn. 350. Specifically, "[t]he coholders of a joint account are considered owners of the entire account and either may withdraw." Masotti v. Bristol Savings Bank, 43 Conn.Sup. 360, 364, 653 A.2d 836 (1994).
Grass v. Grass, supra, 47 Conn.App. 661, continues to state: "Our Supreme Court has stated that [a] signature card is essential to the creation of a bank account . . . It is clear that, under Connecticut law, coholders of a joint account are considered owners of the entire account . . . with access to the entire amount therein. Whether a joint account has been established, however, depends solely on the deposit contract governing the account." (Citations omitted; internal quotation marks omitted.) In the present case, the plaintiff signed the modification of account card (Exh. 5). Accordingly, as it is undisputed that a joint account was established by the decent and the plaintiff, the plaintiff is a coholder of the Account "with access to the entire amount therein." Id.
Fleet Bank Connecticut, N.A. v. Carillo, supra, 240 Conn. 350, continues to explain that the property interest in each coholder is "sufficient to trigger a third party creditor's statutory right to execute against the entire balance of the joint account." In the present case, there is no third-party creditor, but rather a dispute between coholders, for which Fleet Bank Connecticut, N.A., concludes that § 36a-290 fails to provide for property rights as between holders. As further discussed in this decision, however, this legal conclusion is inapplicable in the present case.
In Durso v. Vessichio, 79 Conn.App. 112, 115-20, 828 A.2d 1280 (2003) the appellate court extensively discussed § 36a-290. The transfer of monies in Durso, however, was not an inter vivos transfer as it is in the present case. Rather, the father decedent in Durso opened a joint account with his son and daughter, and upon the decedent's death his daughter withdrew all funds from the account, claiming that § 36a-290 provides for a race to the money rule in the case of joint accounts. Id., 113-14. The court disagreed, holding that once the father passed away, survivorship rights vested in the son and the daughter under subsection (b) of the statute. Id., 122.
The court reasoned that "[t]he specific property interest recognized by the court in [ Fleet Bank Connecticut, N.A. v. Carillio, supra, 240 Conn. 350], is limited . . . to permit a creditor of any of the holders of a joint account to exercise setoff rights against the account in its entirety . . . In other words, § 36a-290(a) recognizes the account holder's right to the moneys as a debt due by the bank. It does not recognize an account holder's rights to the moneys as between holders. See Grodzicki v, Grodzicki, 154 Conn. 456, 463, 226 A.2d 656 (1967) (`language of [General Statutes § 36-3, the predecessor of § 36a-290] does not determine the respective rights of the parties inter vivos')." (Citation omitted.) Durso v. Vessichio, supra, 79 Conn.App. 117.
The factual context of that holding in Grodzicki v. Grodzicki, supra, 154 Conn. 456, however, is distinguishable from Durso v. Vessichio, supra, 79 Conn.App. 117, as the transfer of funds in Durso was not inter vivos. In Grodzicki, a wife and a husband were coholders of a joint account, to which the wife was the sole contributor. Upon their separation, she withdrew all of the funds, at which point her husband sued for conversion, claiming a one-half interest in the monies in the joint account. The court rejected the conversion argument, holding that the wife was permitted to withdraw the funds because § 36a-290 "does not determine the respective rights of the parties inter vivos such that one coholder may claim community property rights in funds deposited by another . . . In a conflict between coholders, therefore, § 36a-290 does not serve to convert the deposits made by one coholder into an inter vivos gift to another coholder." (Emphasis in original.) Fleet Bank Connecticut, N.A. v. Carillo, supra, 240 Conn. 353; Grodzicki v. Grodzicki, supra, 154 Conn. 463. Applying this reasoning to the present case, the appellant, as a coholder, was permitted to withdraw all monies from the account under the statute. Her father's estate, however, cannot claim an ownership interest in the monies, as the transfer was made inter vivos.
In the present case, the parties do not dispute that the Account was a joint account in the names of Vincent Capiello and Doreen Mikoshi. Accordingly, pursuant to § 36a-290(a), the appellant permissibly withdrew any and all monies from the Account.
The statute creates a presumption of survivorship in § 36a-290(b). The issue of survivorship, however, though addressed by the parties, will not be addressed by the court, as the court has already held that the appellant permissibly withdrew the funds from the Account.
II GIFT
Alternatively, assuming arguendo, that the appellant was not permitted to take the funds out of the joint account, the respondent still would not be entitled to the monies, as the decedent made a valid inter vivos gift to the appellant. "When an estate is a party, the burden is on the person claiming the gift to prove the claim by clear and satisfactory proof." (Internal quotation marks omitted.) Dalia v. Lawrence, 226 Conn. 51, 70, 627 A.2d 392 (1993).
In the present case, there is sufficient evidence to find that this was a valid gift made to the appellant. The court finds the appellant's testimony was credible as to the following facts:
The appellant lived at her parents' house, helping out around the house and taking care of her mother and father since 1995, of which her father was appreciative, as he was working when his wife, who passed away in 1996, was sick with cancer. Once her father got sick, the appellant visited him every day at Stamford Hospital, where he stayed in a private room. On June 18, 2001, the date the gift was made, she was visiting the decedent alone for one or two hours. On said date, the appellant and her father had a conversation. The appellant was sitting bedside, while her father was sitting upright in his bed. Throughout the conversation the appellant and her father made eye contact. The decedent appeared to be able to hear clearly, and he was audible to the appellant. During this conversation, the decedent talked about his expenses with her, and told her that she was to withdraw the money from the joint account and put it into a separate account in her name. The decent told the appellant that the contents of the joint account were hers, and he also spoke about the check book in both of their names, that she was to pay any outstanding and future bills. After the visit on June 18, 2001, the appellant went to bank, withdrew the money from the account, and deposited it into an account in her own name. On June 19, 2001, she again visited with her father, who appeared to understand her and whom she could understand, and informed him of the money transfer, to which he responded that she had done what he wanted her to do. The decedent subsequently passed away on June 21, 2001.
Based on the appellant's credible testimony, the court finds this to be clear and satisfactory proof that the gift was valid.
CONCLUSION
Accordingly, the appellant was permitted to withdraw the funds from the Account. Alternatively, a valid gift was made by the decedent to the appellant. Wherefore, judgment may enter in favor of the appellant in accordance with this decision.