Ball v. The Mercantile Trust Co.

• Citation: 297 S.W. 415,220 Mo.App. 1165
• Parties: JOHN BALL, EXECUTOR OF THE WILL OF JEREMIAH PRENDIVILLE, DECEASED, APPELLANT, v. THE MERCANTILE TRUST COMPANY, A CORPORTATION, AND CATHERINE M. PRENDIVILLE, RESPONDENTS.
• Decision Date: 19 July 1927
• Court: Court of Appeal of Missouri (US)

297 S.W. 415

220 Mo.App. 1165

JOHN BALL, EXECUTOR OF THE WILL OF JEREMIAH PRENDIVILLE, DECEASED, APPELLANT, v. THE MERCANTILE TRUST COMPANY, A CORPORTATION, AND CATHERINE M. PRENDIVILLE, RESPONDENTS.

Court of Appeals of Missouri, St. Louis

July 19, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.

AFFIRMED.

Judgment affirmed.

Wilbur C. Schwartz and John P. Leahy for appellant.

(1) An agency cannot be established by the declarations of the agent. There is no evidence tending to prove that the deceased ever signed any agreement establishing a joint deposit which contained a provision that either or the survivor should draw. McDermott v. Hannibal, etc., R Co., 76 Mo. 516; Jones on Evidence, section 255, page 383. (2) The provisions of section 11779, R. S. 1919 regulating deposits by one person in the name of another and providing for a release and discharge of banks, was enacted purely for the protection of the bank in which such deposit was made and does not attempt to settle or adjust the rights of the depositors as between themselves. Clary v Fitzgerald, 155 A.D. 659, 140 N.Y.S. 536; McDonald v. Sargent, 201 N.Y.S. 129; Dennigan v. San Francisco Savings Union Bank, 127 Cal. 142; Hayes v. Claeser, 189 A.D. 444. (3) The mere opening of a joint account, each having equal right to draw, does not in itself establish a gift. Dennigan v. San Francisco Savings Union Bank, 127 Cal. 142; McCullough v. Forest, 84 N. Y. Eq. 101; Hayes v. Claeser, 189 A.D. 449. (4) Notwithstanding the provisions of the statute, Section 11779, Revised Statutes 1919, and although the deposit was joint with the right of survivorship attaching thereto, oral evidence is always competent to indicate the intention of the donor in making the deposit, and such intention will be sustained by the court, although adverse to the claim of the survivor. In re Fonde Estate, 206 A.D. 61; Clary v. Fitzgerald, 155 A.D. 659. (5) It is a familiar doctrine that if a gift does not take effect as an executed or completed transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition and good only if made and proved as a will. In re Lindhorst Estate, 270 S.W. 150; Albrecht v. Slater, 233 S.W. 8; Welch v. Mahoney, Admr., 121 Maine, 49; Spencer v. Vance, 57 Mo. 427; In re Estate of Soulard, 141 Mo. 642; Thomas v. Thomas, 107 Mo. 459.

Igoe, Carroll, Higgs & Keefe for respondent.

(1) Under the statute, the respondent and her uncle held the deposit in joint tenancy, and the respondent, as survivor, is the sole owner of the fund. R. S. 1919, secs. 11779, 11840; Conqueror Trust Co. v. Craig (Mo. App.), 218 S.W. 972; Clary v. Fitzgerald, 155 A.D. 659, 140 N.Y.S. 536; O'Connor v. Dunnigan, 158 A.D. 334, 143 N.Y.S. 373, aff. in 107 N.E. 1082; Loker v. Edmans, App.Div. , 197 N.Y.S. 857; Erwin v. Felter, 283 Ill. 36, 119 N.E. 926; Illinois Trust & Savings Bank v. Van Vlack, 310 Ill. 185, 141 N.E. 546; Reder v. Reder, 312 Ill. 209, 143 N.E. 418; New Jersey Title Guaranty Co. v. Archibald, N. J. , 108 A. 434; In re Redfield's Estate, Mich. , 164 N.W. 372; Ludwig v. Brunner, 203 Mich. 556, 169 N.W. 890; In re Taylor's Estate, Mich. , 182 N.W. 101; Kennedy v. Kennedy, 169 Cal. 287, 146 P. 647; McDougal v. Boyd, 172 Cal. 753, 159 P. 168; In re Harris' Estate, 169 Cal. 725, 147 P. 767; Miller v. American Bank & Trust Co., Colo., , 206 P. 796. (2) Not only does the form of the deposit show a joint tenancy, but the evidence clearly shows that such was intended by deceased and respondent. Deceased not only signed the contract creating the joint tenancy, but, through his agent, directed the bank as to the character and form of the deposit. In re Taylor's Estate, Mich. , 182 N.W. 101; Kelley v. Beers, 194 N.Y. 49, 86 N.E. 980; Erwin v. Felter, 283 Ill. 36, 119 N.E. 926; Kennedy v. Kennedy, 169 Cal. 287, 146 P. 647; New Jersey Title Guaranty Co. v. Archibald, N. J. , 108 A. 434. The testimony of the agent was properly received. The agent's testimony was competent to show agency, though his mere declarations would not have been. Monument Plumbing & Supply Co. v. Dittmeier (Mo. App.), 223 S.W. 818; Bates v. Walter (Mo. App.), 199 S.W. 729; Russell v. Wyant, 214 Mo.App. 377, 253 S.W. 790; Christian v. Smith, 85 Mo.App. 117. (3) The fact that deceased wished to be able to use the money during his lifetime, "if he needed any of it," is not inconsistent with the intention to create a joint tenancy, joint user being an incident of every joint tenancy. Commonwealth Trust Co. v. DuMontimer, 193 Mo.App. 290, 183 S.W. 1137; Kelley v. Beers, 194 N.Y. 49, 86 N.E. 980; Kennedy v. Kennedy, 169 Cal. 287, 146 P. 647; Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N.E. 371. (4) The making of the deposit with provision for survivorship rights did not constitute an attempt at testamentary disposition. The thing given was a present joint interest, which, even if considered from the standpoint of a gift, contains all the elements required. But the gift, being of a joint interest (joint user, joint possession and survivorship being incident thereto) is not comparable to ordinary gifts of personal property not held in joint tenancy. Commonwealth v. DuMontimer, 193 Mo.App. 290, 183 S.W. 1137; Negaunee Nat'l Bank v. LeBeau, Mich. , 161 N.W. 974; Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N.E. 371; Kelley v. Beers, 194 N.Y. 49, 86 N.E. 980; Reder v. Reder, 312 Ill. 209, 143 N.E. 418; Erwin v. Felter, 283 Ill. 36, 119 N.E. 926. (5) The creation of a joint tenancy in a bank deposit is a matter of contract, and the nature of the deposit is determined by the contract, just as in joint tenancies of real estate the character of the title is determined by the instrument of conveyance. Chippendale v. North Adams Savings Bank, 222 Mass. 499, 111 N.E. 371; Parrish v. Merchants & Mechanics Savings Bank, Va. , 91 S.E. 135, Reder v. Reder, 312 Ill. 209, 143 N.E. 418. See, also, cases cited under point 1.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

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 so 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,...