concurring.
I concur in the affirmance of the judgment of the trial court. I do not agree that the record establishes a breach of a fiduciary relationship as a matter of law merely because Moore accepted the transfers by Mrs. Littell to him as joint tenant with survivorship rights of her funds in the two savings accounts. There is evidence that from the time Mrs. Littell became physically incapacitated from a broken hip in 1967 until her death in 1972, Moore alone took care of her physical as well as her financial affairs. As her designated next of kin and the only relative who looked after her during her long confinement, Moore paid all her bills and saw to her other needs.
There is no allegation of undue influence or lack of mental capacity in the execution by Mrs. Littell of the necessary forms to convert the two accounts to joint survivor-ship accounts. Her signatures on these accounts were witnessed by several of the nursing staff of the convalescent center where Mrs. Littell was confined, including the private nurse who looked after her for several years. Obviously, if Mrs. Littell was “confused” about this purpose or had been overreached, petitioner could have easily obtained such evidence. There is testimony from officers at the two institutions where these two survivorship accounts were opened that there was nothing unusual in an elderly woman opening this type account so that her bills could be paid during her confinement by her next of kin. All of this testimony raised a fact issue, at the very least, as to whether Moore breached his fiduciary relationship with his aunt by permitting her to open these joint survivorship accounts.
Nevertheless, there is testimony from the Master in Chancery that the sum of $4,015.67 received by Moore from monies belonging to Mrs. Littell was not accounted for by Moore. This uncontroverted testimony, together with the jury finding that Mrs. Littell did not make a gift to Moore of the two survivorship accounts, supports the judgment of the trial court.
I concur in the affirmance of the trial court’s judgment.