
    Jennie Ann LASTITION, Appellant, v. Walter LASTITION, Appellee.
    No. 75-881.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1976.
    Herbert L. Gildan and Thomas J. Yeager of Nason, Gildan & Yeager, West Palm Beach, for appellant.
    John T. Christiansen of Sales & Chris-tiansen, Palm Beach, for appellee.
   PER CURIAM.

Upon review and consideration of the briefs, record on appeal and oral argument we are of the opinion that the final judgment of dissolution should be affirmed in all respects except as to the determination that the wife’s transfer of her interest in the jointly held Travelodge property constituted a gift.

A review of the record reflects, among other things, that the property in question was originally acquired by the husband in 1963 with title to the property taken in joint names. The property was conveyed to a third party in 1971 with the conveyance accomplished by the wife signing a contract for the purchase and sale and signing a deed of conveyance to the purchaser. The record clearly reflects that at the time the wife signed the check she was bedridden and could not even endorse the check herself; her husband had to put the pencil in her hand when she signed the check. Moreover, the husband admitted that there was no conversation whatsoever concerning the purpose of this endorsement or the fact that the wife might be giving the husband half of the cash.

There was a mortgage on the subject property in the joint names of the parties. When the property was sold the husband took back the purchase money mortgage of $1,000,000 in his name alone.. The cash realized at the sale ($170,226.98) was reflected by a check made payable jointly to the husband and wife; the wife subsequently endorsed the check to the husband.

It is our opinion from a review of the totality of thé circumstances surrounding this transaction that the transfer in question did not constitute a gift by the wife to the husband of her interest in the jointly held property. Cf. Lerner v. Lerner, 113 So.2d 212 (Fla.2d DCA 1959). In this regard the learned trial judge misconceived the legal effect of the evidence.

Accordingly, the wife’s claim for a one-half interest in the subject property in question is recognized and the cause is remanded to the trial court for such other proceedings as may be consistent with this opinion.

MAGER, C. J., and CROSS, J., concur.

TROWBRIDGE, C. PFEIFFER, Associate Judge, dissents.

TROWBRIDGE, C. PFEIFFER, Associate Judge

(dissenting in part).

I would affirm the judgment below in its entirety.

All of the claims of the wife were disputed and the trial judge’s decision was primarily a factual one. He reserved jurisdiction on all matters except the dissolution and his order recognizes that the wife’s condition may require a change in residency and in alimony.

The wife wants us only to look to the last transaction instead of to the entire financial history of their dealings with each other. Judge Beranek’s opinion makes it clear that the wife received and divested herself of property over the years without ever having any real interest therein. To apply a rule of law to only one transaction overlooks the factual basis that led to that transaction.

Ball v. Ball, 335 So.2d 5 (Sup.Ct.1976) provides that a special equity is created by an unrebutted showing that all of the consideration for property held as tenants by the entirety was supplied by one spouse from a source clearly unconnected with the marital relationship and such property should be awarded to that spouse in the absence of contradictory evidence that a gift was intended. The old presumption of gift rules just don’t apply to this case. The judge below found that the wife did not contribute to the husband’s accumulation of wealth.

Accordingly, I would affirm the entire judgment.  