In re Estate of offutt
| Decision Date | 15 July 1911 |
| Citation | 139 S.W. 487,159 Mo.App. 90 |
| Parties | IN RE ESTATE OF MOLLIE OFFUTT, Deceased, Respondent, v. HARRY TROLL, Public Administrator, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted April 5, 1911
Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.
Judgment affirmed.
Edwin S. Puller for appellant.
(1) "Cash" means ready money, placed where the owner can command it at any time. It does not include promises to pay in the future. Long v. Strauss, 107 Ind. 94; Crocker v. Crane, 21 Wend. 211; Palliser v U.S., 136 U.S. 257; State v. Moore, 48 Neb 870; 6 Cyc. 700. (2) A certificate of deposit is a mere promise to pay money. It is a promissory note and not "cash." Curran v. Witer, 68 Wis. 16; Dietrich v. Rothenberger, 75 S.W. 271; Mereness v. First National Bank, 112 Ia. 11; Brummigim v Tallent, 39 Cal. 503; Leavitt v. Palmer, 3 Comst. (N. Y.) 19; Morse on Banks and Banking, (4 Ed.), sec. 298; 1 Bolles on Banking p. 455; Pierce v. Bryant, 87 Mass. 91; State v. Moore, supra; Foquet v. Hoodley, 3 Conn. 534; Poorman v. Mills, 35 Cal. 118; Kilgore v. Bulkley, 14 Conn. 362; Swift v. Whitney, 20 Ill. 144; Mitchell v. Easton, 64 N.Y. 155; Citizen's Bank v. Brown, 45 Oh. St. 39; Zane on Banks and Banking, sec. 161; Frank v. Wessels, 64 N.Y. 155; Talladega Ins. Co. v. Woodward, 44 Ala. 287; Baker v. Leland, 9 App.Div. (N. Y.) 365; Hunt v. Devine, 37 Ill. 137. (3) Deposit of moneys in bank subject to withdrawal only after notice for a specific time does not pass under a gift of ready money in bank or on hand. In re Wheeler, 52 Weekly Rep. 586; In re Price, 53 Weekly Reports 600; Mayne v. Mayne, 1 Irish Rep. 324.
L. C. Dyer and Byron F. Babbitt for respondents.
The cardinal rule of interpretation in construing wills is that the intention of the testator shall control. McMillan v. Farrow, 141 Mo. 55; Small v. Field, 102 Mo. 104; Clotilde v. Lutz, 157 Mo. 439; Simmons v. Cabanne, 177 Mo. 336.
Mrs. Offutt, a widow, by her last will, duly probated, after providing for the payment of her debts, expenses of last illness and funeral expenses, bequeathed to her mother an insurance policy she held, and to her sisters and a niece "all cash on hand and in bank at time of my death, if any, to be divided equally between them." She devised and bequeathed to her adopted daughter, Delia Rucker, all the rest and residue of her estate, of every description, real, personal and mixed, including her homestead situate on Cottage avenue in St. Louis, as well as all furniture and household "effects" therein contained and every and all other property not therein above disposed of. The will is dated April 22, 1907, and Mrs. Offutt died April 26, 1907. On the 18th of April, 1907, that is eight days before her death, and four days before she made her will, Mrs. Offutt deposited with the National Bank of Commerce in St. Louis $ 700, taking a certificate of deposit in usual form, payable to her order on the return of the certificate six months after its date, in current funds, the deposit bearing no interest after maturity and not payable until the certificate is due. It was cashed after her death and at maturity by her executor. For a long period prior to her death, Mrs. Offutt maintained a cash deposit with a trust company, the deposit subject to her check. At the time of her death, she had $ 485 on deposit with the trust company. She had no deposit with the Bank of Commerce subject to check and her entire dealing with that bank was represented by the certificate of deposit before mentioned. She had no cash in hand at the time of her death. Her adopted daughter, Delia Rucker, died intestate on March 19, 1908. The executor of Mrs. Offutt exhibited his final settlement in the probate court of the city of St. Louis, by which it appeared that he had a balance of $ 937.98 cash on hand, which included the proceeds of the deposit certificate, and personal property of the appraised value of $ 127. The probate court ordered distribution as follows: To each of the sisters and the niece $ 262.24 2-3; to the public administrator in charge of the estate of Delia Rucker, deceased, $ 127 (the appraised value of the personal property), and $ 24.24 cash. The public administrator appealed from this to the circuit court, where on a trial on an agreed statement of facts, the substance of which we have given, and on the record, including the will, settlement, etc., the circuit court, following the action of the probate court, made a like order of distribution. From this order the public administrator, as in charge of the estate of Delia Rucker, has duly perfected his appeal to this court.
It will be noticed that the whole controversy turns on the question as to whether the money on deposit with the Bank of Commerce, evidenced by the certificate of deposit, is to be considered as of "all cash on hand and in bank at time of" death of the testatrix. If so, it was to be equally divided between the two sisters and niece of the testatrix. If not, it went into the undisposed of portion of the estate, and fell to Delia Rucker, the adopted daughter, as residuary legatee, the executor of Mrs. Offutt having collected it in due course. Counsel for the administrator of Delia Rucker (herein referred to as the administrator), claims that cash means ready money and that a certificate of deposit is a mere promise to pay money and is a promissory note and not "cash," and that the deposit of moneys in bank subject to withdrawal only after notice for a specific time does not pass under a gift of ready money in bank or on hand.
In support of this latter proposition Mayne v. Mayne, 1 Irish Reports (1897), 324, is cited. The will there under construction made certain specific legacies, "and as regards whatever ready money may be found in bank, or interest accruing, at the period of my decease," after the payment of debts, etc., the testatrix directed that the surplus be divided between named charities. The Master of the Rolls held that the term "ready money" had a different signification from money itself, and he reached the conclusion that money deposited in bank on deposit certificates was not ready money. He states as one of the reasons for excluding the large amount which was in bank on deposit from these charitable bequests, that considering the length of time which had elapsed from the execution of the will and the death of the testatrix, and her fortune at her death as compared to what it had been when she made the will, it is not to be supposed that she intended to include this. In the language of the Master of the Rolls ( 341): ...
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