This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Ronald C. Pearson, et al.,



Dougherty Dawkins Strand and Bigelow, Inc., et al.,


William D. Ford,


Filed August 11, 1998


Shumaker, Judge

Hennepin County District Court

File No. 9514577

Michael J. McNamara, Henderson, Howard, Pawluk & McNamara, P.A., 6200 Shingle Creek Parkway, Suite 385, Brooklyn Center, MN 55430 (for appellants)

Joseph W. Anthony, Fruth & Anthony, P.A., 3750 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents Dougherty Dawkins Strand and Bigelow, Inc., et al)

Judith A. Rogosheske, Best & Flanagan, 601 Second Avenue South, Suite 4000, Minneapolis, MN 55402-4331 (for respondent William Ford)

Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Shumaker, Judge.



Appellants Ronald C. and James E. Pearson appeal from a summary judgment in respondents' favor on appellants' claims of "conversion by negligence and fraud of securities and proceeds of securities." They contend that the district court erred in ruling that appellants had no ownership interest in the securities and proceeds at issue. We affirm.


With entirely her own money, Lucille Holland opened an investment account in 1985 at Miller & Schroeder Municipals, Inc. through the services of her broker, respondent William Ford. She listed appellants, her nephews, as joint tenants with right of survivorship. When Ford took a job as broker with respondent Dougherty, Holland transferred her investment account to that firm and again listed appellants as joint tenants with right of survivorship. In 1990, the bonds in the account were sold upon signatures purporting to be those of Holland and the Pearsons. The signatures were not genuine. The proceeds of the bond sales were placed in the joint tenancy account. Holland then opened a new joint tenancy account with Audrey and Jack Baumgartner and transferred to it the bond proceeds and funds from another account in her name alone. In 1992, Holland opened a second account in joint tenancy with the Baumgartners and transferred all of her Dougherty holdings into it. At her death in 1994, she had only the joint tenancy survivorship account with the Baumgartners. At no time did Holland tell appellants of any of the accounts; rather, they learned about the accounts and various transactions only after Holland's death.

Contending that they were the lawful surviving joint tenant owners of Holland's Dougherty account and that the unauthorized bond sale did not defeat their ownership interest, appellants claimed entitlement to the sums in the account that Holland had in joint tenancy with the Baumgartners when she died. The district court ruled that appellants had no ownership interest in any of Holland's accounts at her death. Appellants contend that the ruling is reversible error.


On appeal from a summary judgment, this court must determine whether a genuine issue of material fact exists and whether an error in the application of the law occurred. Fairview Hosp. v. St. Paul Fire & Marine, 535 N.W.2d 337 (Minn. 1995).

The dispositive question is whether appellants had received an irrevocable survivorship interest in Holland's investment account so as to entitle them to the proceeds of that account upon Holland's death. Appellants posit such interest on theories of gift, trust and equity.

When a person deposits money in a brokerage investment account for the purchase of stocks and bonds and provides that others, who contribute no funds, are to be joint tenants with the depositor, a question arises as to the nature and extent of the ownership interests, if any, of the noncontributing joint tenants. Rutchick v. Salute, 288 Minn. 258, 261, 179 N.W.2d 607, 610 (1970). Such interests must be based on contract, trust or gift. Id. Appellants do not contend that they gave consideration for an interest in the Holland account or that Holland created an express trust for them. Thus, if appellants acquired any ownership interest in the account, it was based on a inter vivos gift, and the issue must be analyzed under the law of gifts.

Appellants argue that their interests should be determined, at least in part, by an application of federal and state securities laws. We disagree. Although securities regulations respecting stocks and bonds and banking regulations respecting bank deposits and certificates might have evidentiary significance in an appropriate situation, our case law has consistently viewed such items as merely different forms of personalty and has invariably applied the laws of contract, trust, or gift in deciding ownership disputes. See, e.g., Hefner v. Estate of Ingvoldson, 346 N.W.2d 204, 206-207 (Minn. App. 1984) (joint tenancy law applied to savings bonds and certificates); Stribling v. Fredericks, Clark & Co., Inc., 300 Minn. 525, 526, 219 N.W.2d 93, 95 (1974) (gift law applied to stock); Rutchick, 288 Minn. at 262, 179 N.W.2d at 610 (gift law applied to savings certificate); Kath v. Kath, 238 Minn. 120, 123, 55 N.W.2d 691, 693 (1952) (gift law applied to stock); Larkin v. McCabe, 211 Minn. 11, 20-22, 299 N.W. 649, 654 (1941) (gift law applied to bonds); Innes v. Potter, 130 Minn. 320, 325, 153 N.W. 604, 606 (1915) (gift law applied to corporate stock).

We first consider whether Holland gave a gift to appellants when she opened an investment account and designated them as joint tenants with right of survivorship. We reject the notion that the mere listing of appellants as joint tenants established a gift of an ownership interest in the account. Hefner, 346 N.W.2d at 206 ("joint or co-ownership does not automatically confer a property interest in savings bonds and certificates of deposit * * * ."). Even where a depositor opened a brokerage investment account entirely in the name of another before the depositor died, the putative owner was not entitled to recover damages caused by the brokerage's unauthorized transfer of funds because he failed to prove that the stocks were a gift to him:

To constitute a valid gift inter vivos, certain elements must be established: delivery, a clear intent to make an immediate, present gift beyond recall, and an unconditional surrender of future dominion and control by the donor over the property so delivered.

Stribling, 300 Minn. at 526, 219 N.W.2d at 95.

This case was presented to the district court on cross-motions for summary judgment. Implicit in any summary judgment motion is a concession that there is no genuine issue of material fact for trial. Minn. R. Civ. P. 56.03. (Judgment shall be rendered forthwith if * * * there is no genuine issue as to any material fact * * * ."). It is undisputed that the only thing that connects appellants in any way to the Holland accounts is the appearance of their names as joint tenants on the accounts and on bonds in the accounts. As a matter of law, this is not enough to satisfy the requirements of an inter vivos gift. See Stribling, 300 Minn. at 526, 219 N.W.2d at 95; Rutchick, 288 Minn. at 262, 179 N.W.2d at 610. Such fact does not support an inference that Holland intended to make the requisite "present gift beyond recall." Stribling, 300 Minn. at 526 , 219 N.W.2d at 95; see also Brennan v. Carroll, 260 Minn. 521, 526-527, 111 N.W.2d 229, 233 (1961) (evidence sufficient to justify conclusion that decedent did not make gift to sister where he endorsed securities in sister's name and delivered them to stockbroker to transfer to sister's account, but did not instruct broker to deliver certificates to sister.)

Nor has delivery been shown in the instant case. Although delivery can be accomplished through a third-party depository who receives the gift for the benefit of the donee, there must be sufficient evidence that the donor intended an unconditional surrender of future control over the property. Stribling, 300 Minn. at 526, 219 N.W.2d at 95. The undisputed facts are that Holland closed her Miller & Schroeder account; opened an account in 1989 at Dougherty; allowed bond sales proceeds to be placed back in the account in 1990; transferred other funds from the account in 1990; transferred funds from the account with appellants to an account with the Baumgartners; and in 1992 created another account with Baumgartners using funds from the 1990 bond sales. These facts negate any inference that Holland intended to relinquish control over her accounts and are significantly different from those in Larkin and Innes, on which appellants rely. In both of those cases, the donors made express representations that they intended the respective donees to receive gifts of stocks or bonds and then delivered the instruments to third parties to hold for the benefit of the donees. Innes states the applicable rule:

We accordingly hold that the owner of personal property may make a valid gift thereof with the right of enjoyment in the donee postponed until the death of the donor, if the subject of the gift be delivered to a third person with instruction to deliver it to the donee upon the donor's death, and if the donor parts with all control over it, reserves no right to recall, and intends thereby a final disposition of the property given.

Innes, 130 Minn. at 325, 153 N.W. at 606 (emphasis added).

At best, appellants at one time arguably had an inchoate interest in the Holland accounts and instruments on which they were listed as joint tenants. Had Holland effectuated an inter vivos gift to appellants by satisfying the legal prerequisites or had she created an express trust for appellants, the inchoate interest would have become absolute. Had Holland died before transferring the account out of appellants' names, at least arguably their inchoate interest would have become absolute. But none of those events occurred; the appellants' interest remained inchoate and revocable; and Holland revoked their interest when she opened the account with the Baumgartners.

Appellants argue that the bonds that were sold without the genuine signatures of Holland and appellants were the res of a constructive trust, and that their ownership rights ripened through that trust. In Larkin the court said:

A constructive trust is a remedial device by which the holder of the legal title is held to be a trustee for the benefit of another who in good conscience is entitled to a beneficial interest without reference to the intention, or the lack of it, of the parties.

Larkin, 211 Minn. at 26, 299 N.W. at 656.

Appellants did not own any portion of the Holland accounts. Holland revoked any inchoate interests appellants might have had, as she was legally entitled to do. There is no basis for concluding that appellants are entitled to money that always belonged entirely to Holland and that she decided to give to someone else.