Ball v. Mercantile Trust Co.

• Decision Date: 19 July 1927
• Docket Number: No. 19809.,19809.
• Parties: BALL v. MERCANTILE TRUST CO. et al.
• Court: Missouri Court of Appeals

297 S.W. 415

BALL v. MERCANTILE TRUST CO. et al.

No. 19809.

St. Louis Court of Appeals, Missouri.

July 19, 1927.

Rehearing Denied July 26, 1927.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Suit by John Ball, executor of the will of Jeremiah Prendiville, deceased, against the Mercantile Trust Company and another. Judgment for defendant Catherine M. Prendiville, and plaintiff appeals. Affirmed.

Wilbut C. Schwartz and John P. Leahy, both of St. Louis, for appellant.

Edgar H. McCulloch, of St. Louis, for respondent Mercantile Trust Co.

Igoe, Carroll, Higgs & Keefe, of St. Louis, for respondent Prendiville.

BECKER, J.

This was an action by John Ball, executor under the will of Jeremiah Prendiville, deceased, against the Mercantile Trust Company and Catherine M. Prendiville, niece of the said deceased, to recover a sum of money which was deposited to the joint account of the said Jeremiah Prendiville and the defendant Catherine M. Prendiville in the Mercantile Trust Company savings department. From the judgment rendered in favor of the defendant Catherine M. Prendiville, the plaintiff (executor) appeals.

Plaintiff's petition below alleges that on the 16th day of August, 1921, whilst Jeremiah Prendiville was a patient in Barnes Hospital, in the city of St. Louis, and in a greatly enfeebled condition of body and mind, the defendant Catherine M. Prendiville, who was then acting in a fiduciary capacity for the said deceased and managing his business affairs, caused a savings account to be opened in the Mercantile Trust Company of St. Louis in the joint names of the said Jeremiah Prendiville and herself, under the terms of which moneys were to be deposited in the said trust company, which could be withdrawn or paid out by the said trust company upon the request or order of both, or either of them; that thereafter the said defendant collected moneys on promissory notes, bonds, and other property of the said Jeremiah Prendiville, and from time to time deposited the amounts se collected in said savings account, and that at the death of the said Jeremiah Prendiville there was deposited to the credit of said account $794.41; that the defendant Catherine M. Prendiville merely represented the deceased as a confidential agent and in a fiduciary capacity in opening the said account and had or has no right, title, claim, or interest to any of the said moneys so deposited, and that the same was the sole and exclusive property of the said Jeremiah Prendiville; and that the plaintiff, as the executor under the will of said Jeremiah Prendiville, deceased, was rightfully entitled to the possession thereof.

The petition alleges demand upon the trust company and its refusal to pay, and prays that the defendant Catherine M. Prendiville be held to have no interest, right, or title in the account, and for judgment against the defendant for the amount of the deposits and accrued interest thereon.

The answer of the defendant Catherine M. Prendiville, among other things, sets up that on the 16th day of August, 1921, she deposited in the Mercantile Trust Company the sum of $147 in the names of herself and Jeremiah Prendiville jointly, in such form and manner that said deposit and any additions thereto should be paid to either of said parties and in case of the death of either to the survivor of them, and that the same was made in such form at the request of Jeremiah Prendiville, and by agreement between him and said defendant, and upon the agreement and understanding that the said deposit and any additions to the same should be held in joint tenancy; that on or before the date of the said first deposit she and the said Jeremiah Prendiville executed and entered into a contract in writing with the said trust company and with each other, whereby it was provided and agreed that the original deposit and any additions thereto should be held to the account and as the property of herself and said Jeremiah Prendiville as joint tenants, and that upon the death of either of said joint tenants the accumulated funds, so deposited, with accrued interest thereon, should go and belong to the survivor absolutely; that from time to time deposits were made by her to the said account to the credit of herself and the said Jeremiah Prendiville, as joint tenants, under the aforesaid agreement; that the amount of such deposits, with accrued interest thereon, was in excess of $850 and was held by the defendant Mercantile Trust Company in the names of "Jeremiah Prendiville or Miss Catherine M. Prendiville" as joint tenants, and that upon the death of the said Jeremiah Prendiville, on November 26, 1921, all right, title, and interest in and to the funds so deposited, which the said Jeremiah Prendiville may have had, terminated, and that she, as the survivor, became and was the sole and absolute owner thereof. This answer concludes with a prayer to decree, adjudge, and declare that the plaintiff has no right, title, or interest in said fund, and that the ownership of the fund be declared and decreed vested in her, and that the trust company be ordered to deliver said sum to her on demand.

The answer of the defendant Mercantile Trust Company admitted that it had $850.24 as a balance in an account held in the names of Jeremiah Prendiville and Catherine M. Prendiville, either or the survivor to draw. It admitted that demand had been made upon it for the payment of the fund, which it was unable to comply with as the ownership of the said funds had not been established.

Plaintiff adduced the ledger card made by the Mercantile Trust Company which showed the entire entries of the account in question, also the passbook which corresponded with the said ledger card. The account consisted of four deposits made between August 16, 1921, and October 21, 1921; and the passbook showed the account was in the name of "Catherine M. Prendiville or Jeremiah Prendiville, —ther, or survivor to draw." (There is evidently an omission before the letters "ther." It is conceded that the word probably meant is "either.")

The attorney for the trust company testified for the plaintiff that, when an account is opened at the trust company, the parties are requested to execute signature cards for the purpose primarily of getting the signatures of the parties, in order that any of their checks might be identified as to their signatures, and also to govern or indicate the wishes of the parties as to whose name the passbook is to be drawn, and the kind of an account to be opened; that the passbook is supposed to evidence what the parties desire when they execute the signature cards; that the passbook reflects the intentions of the parties in the execution of the signature cards; that the signature card is invariably executed by depositors when the account is opened and is preserved with the account. The plaintiff adduced E. A. Kamp, who testified that he was in the real estate business, had known Jeremiah Prendiville, who was a man of considerable means, for a number of years prior to his death, and had attended to his real estate investments for him; that the defendant Catherine M. Prendiville was one of several nieces of the deceased; and that Jeremiah Prendiville, a year and a half prior to his death, had been in ill health and had given up all active business, and that the witness visited him in several hospitals; that after August, 1921, at which time Jeremiah Prendiville was confined in Barnes Hospital, he never thereafter went to the bank, safe deposit vaults, or anywhere else, but transacted his real estate and bank transactions through him. The witness often brought checks for rents collected to the deceased; that the deceased sometimes held such rent checks for a considerable time, and therefore the witness suggested that such checks should be cashed; that the deceased thereupon told him that he wanted to turn the rent collections over to his niece, Catherine M. Prendiville, to use during the time he was living for the payment of his bills, and wanted her to have it after he was dead.

"Q. That he wanted her to have the money? A. Yes, sir. And I suggested that we go to the bank and open a joint account so that either one could draw, and and if he lived he could draw the money, and if he died she could draw the money.

"Q. That was before the account was opened? A. Yes, sir. We went later and opened the account.

"Q. Did he direct you to do that? A. Yes, sir.

"Q. And did he say he wanted her to have the money after his death that went into that account? A. He said that he wanted her to have that money, but during the time that he was living he wanted the use of it; if he needed any of it, he wanted the use of what he would need."

The witness identified the signature of Jeremiah Prendiville to the signature card. In reply to questions by the court he said he was acting for Mr. Prendiville in the matter of opening the joint account, and that Mr. Prendiville had asked him to open the account in the joint names of himself and his niece. The signature...