Armstrong's Ex'r v. Morris Plan Industrial Bank

• Decision Date: 05 March 1940
• Citation: 138 S.W.2d 359,282 Ky. 192
• Parties: ARMSTRONG'S EX'R v. MORRIS PLAN INDUSTRIAL BANK et al. SAME v. LIBERTY NAT. BANK & TRUST CO. et al.
• Court: Kentucky Court of Appeals

138 S.W.2d 359

282 Ky. 192

ARMSTRONG'S EX'R v. MORRIS PLAN INDUSTRIAL BANK et al.

SAME v. LIBERTY NAT. BANK & TRUST CO. et al.

Court of Appeals of Kentucky

March 5, 1940

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division; James Garnett, Presiding Judge, and Thomas A Ballantine, Special Judge.

Consolidated actions by Julian Tevis Armstrong's Executor (United States Trust Company) against the Morris Plan Industrial Bank and another, and by Julian Tevis Armstrong's Executor (United States Trust Company) against the Liberty National Bank & Trust Company and another. From an unsatisfactory judgment, plaintiff appeals.

Affirmed.

Tilford & Wetherby, of Louisville, for appellant.

Crawford Middleton, Milner & Seelbach and J. Donald Dinning, all of Louisville, for appellees.

PERRY Justice.

These two consolidated actions, as above captioned, call for our determination of the question as to who, the trustee of testator's estate or the appellee, his daughter, Lydia Barbee Armstrong, is entitled to the remainder of the two joint bank accounts carried by testator in the names of himself and daughter, with survivorship clause.

The facts as shown by the record, out of which these suits arise are that the testator, Julian Tevis Armstrong, died on December 20, 1938, when 77 years of age.

He was survived by an only daughter, the appellee, Lydia Barbee Armstrong, an adult son, Thomas Brent Armstrong, who is employed and living in Cincinnati, O., and an infant grandson (some five years of age), Julian Tevis Armstrong, II, the only son of testator's deceased son, John Tevis Armstrong.

Testator's wife, it is shown, died in 1912, since which time his daughter, the appellee, has lived with him in their family home, his constant companion and faithfully looking after his needs and the affairs of the house.

It appears that testator had been a man of frugal habits and continuous industry and had accumulated an estate amounting to some $19,000, which he carried on deposit with the two appellee banks as a checking and savings account, and, exclusive of this, he owned at the time of his death an estate of some $20,000, consisting of stocks and securities, which he disposed of under his will, drawn some ten years prior to his death. By his will he left to each son a fourth interest in his estate and to his daughter the income from a half interest therein, her remainder interest to go at her death to her brothers or their descendants.

These collateral matters, however, possess no relevancy to the question here before us, other than as serving to throw some light on testator's intention and purpose in changing his deposit accounts carried in his own name with the two appellee banks into joint accounts, carried in the names of himself and daughter.

As to this, it appears that some seven or eight months prior to his death, he, in the company of his daughter, Lydia, called at these banks in which he was carrying the two deposit accounts her involved and told the officers of the banks that he wished to change them into joint accounts. Testator's wish and manifested intention was thereupon carried into effect by the signing of appropriate writings, changing the checking and savings accounts carried in the banks into joint accounts carried in the names of himself and daughter, with survivorship clause.

The wording and language of the writing employed in the savings account transaction are as follows:

"This indenture, made and entered into at Louisville, Kentucky, this 6 days of June, 1938, by and between ___ ___ and L. Barbee Armstrong, of the first part (hereinafter called depositors), and the Morris Plan Industrial Bank, of the second part (hereinafter called the bank),

"Witnesseth:

"It is agreed between the parties hereto, and each and all of them, as follows:

"The depositors are opening a joint account with the bank, in the names of both of the depositors, to whose joint account all money shall be deposited. Each of the said depositors shall have the right to check or draw upon said account without the signature of the other, as fully and to the same extent as if the account stood in his name alone. Upon the death of either of the depositors all of this interest in and claim upon the said joint account, or any part thereof, shall cease, and his estate shall have no interest in or claim upon the said joint account or any part thereof, and the funds standing to the joint credit of the depositors, as aforesaid, shall belong absolutely to the survivor.

"In testimony whereof, witness the hands of the parties hereto.

"J. T. Armstrong,

Miss L. Barbee Armstrong

"Morris Plan Industrial Bank,

"By ___ ___"

A like writing, changing his checking account carried in the Liberty Bank into a joint account, was also signed by testator, his daughter and the bank, which we will not quote herein.

This change having been thus effected, both the father and daughter, as by the terms of the contract they were authorized, proceeded to check upon the joint accounts as desired up until the time of Mr. Armstrong's death in December, 1938.

Thereupon, the appellant, United States Trust Co., the named executor of Mr. Armstrong's will, demanded of the two banks in which these joint accounts were carried payment of the balance then remaining in the accounts, contending that testator's estate was entitled thereto.

The daughter and appellee, Lydia Barbee Armstrong, contested this claim, contending that under the terms of the joint account contracts had with the...