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Finders Keepers? Losers Weepers?

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JUNE 4, 2012 VOLUME 19 NUMBER 22
Richard Scott (not his real name) had a propensity to hide things away. His children knew that, and they knew that when he died they would have to go on a treasure hunt — literally for treasure.

Mr. Scott lived in the same house in Paradise Valley, Arizona, for a number of years. During that time he had let the property deteriorate somewhat. When he died in 2001, his two daughters spent seven years just cleaning up, fixing some of the most urgently-needed items, and looking for his stashes of money, gold, stocks and bonds. In fact, during that seven-year period they found hundreds of green military ammunition cans stuffed with valuables.

Finally Mr. Scott’s daughters, believing that they had found pretty much everything, sold the house. Because of the disrepair they listed the property “as-is” and sold it to a young couple with that limitation. The new owners set to work remodeling their new “fixer-upper” property.

The buyers hired a contractor to do some of the remodeling. Almost immediately, one of the contractor’s employees stumbled upon a green ammunition can in the walls of the kitchen. Then the employee went looking for more; he found two other cans in the walls of an upstairs bathroom. Altogether the three cans held about $500,000 in cash.

You can probably see the legal question coming. Who owned the cash? Did it belong to the employee who found it, his boss (the contractor), the home owners, or the daughters of the prior owner?

The Arizona Court of Appeals decided the question just last week. Their answer: the money still belongs to Mr. Scott’s estate.

Generally speaking, according to the appellate court, the old “finders keepers, losers weepers” logic of the schoolyard does not apply in courts. The cases dealing with found property tend to divide the property into one of four categories: mislaid, lost, abandoned or treasure trove. Each of those categories is handled slightly differently.

Property can be mislaid if the owner puts it someplace (for safekeeping, perhaps) and then forgets about it. A finder of mislaid property must return it to the rightful owner. Of course, this category assumes that it is possible to determine the intention of the original owner when he or she placed the property where it was later found.

Lost property, on the other hand, is accidentally or inadvertently misplaced. This category might include, for example, the cash that slips from your pocket as you step over a curb, or the bracelet sliding from your wrist as you put groceries in your car. Lost property belongs to the finder — except that the original owner has the right to recover it from the finder. Note the difference between this and mislaid property: in the case of mislaid property the finder has a duty to return it to the owner.

Property can be abandoned by the owner making an affirmative decision (and acting on it) to relinquish all title to the property. This is what you do, for instance, when you haul your old sofa out to the curb and hope someone will carry it away — or when (more responsibly) you take it to a donation center and leave it with the collections person there. The finder of abandoned property has no duty to return it to the original owner. The Court of Appeals specifically noted that cash can almost never be characterized as abandoned property.

And finally, treasure trove is property that may have once been mislaid or lost, but has been in the place it was found for so long that it is verifiably antiquated and the original owner is probably dead or unknown. This category might be applied to the gold doubloons found in a rusty strongbox in an old mineshaft — and it is more the stuff of legends and stories than of actual legal controversies.

Which of these categories did Mr. Scott’s ammo cans of cash fit into? The Court of Appeals ruled that they were more likely mislaid than abandoned — the only two real choices. The only argument to treat them as abandoned was to assume that Mr. Scott’s daughters had made a conscious decision (buttressed by the “as-is” sale listing) to give up on their search for any further cash and to let the new buyers have anything they might find. The appellate judges decided that the burden of proving abandonment would rest with the new buyers, and they could not overcome the presumption that Mr. Scott and his daughters would not intentionally decide to give away cash. Grande v. Jennings, May 31, 2012.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.