Bank of Perryville v. Kutz
| Decision Date | 15 March 1955 |
| Docket Number | No. 29022,29022 |
| Parties | BANK OF PERRYVILLE, a corporation, Plaintiff, v. Jesse S. KUTZ, Administrator of the Estate of Henry Kutz, deceased, Respondent, Agnes Kohlfeld, Interpleader-Appellant. |
| Court | Missouri Court of Appeals |
R. P. Smith, Cape Girardeau, for appellant.
Leo J. Rozier, Perryville, for respondent.
This is an action of interpleader filed by the Bank of Perryville against the respondent Jesse S. Kutz, administrator of the estate of Henry Kutz, deceased, and the appellant, Agnes Kohlfeld, surviving widow of Tony Kohlfeld. The amount involved is a balance of $1,300 on deposit in the checking account of one Henry Kutz, deceased, in said bank.
The petition was sustained, the fund duly deposited with the clerk of the circuit court, and the plaintiff discharged. The respondent and the appellant each claim the fund and, by stipulation, the cause was submitted to the trial court without any evidence being produced but wholly upon an agreed statement of facts. The trial court ordered the fund on deposit paid to the respondent, Jesse S. Kutz, administrator of the estate of Henry Kutz, deceased, and dismissed the claim of Agnes Kohlfeld. From this judgment appellant perfected this appeal.
The agreed statement of facts sets out that Henry Kutz had a checking account with the plaintiff bank and deposited funds therein under an agreement whereby the bank agreed to pay all or any part of the funds deposited in said account to the said Henry Kutz or to any person or persons designated by him on regular checks. On or about April 14, 1952, the cashier of the bank, at the direction of Henry Kutz, inserted upon its records of Henry Kutz's deposits the following statement: 'Payable on death to Tony Kohlfeld,' after which Henry Kutz advised Tony Kohlfeld of such facts.
Thereafter, Henry Kutz died intestate April 28, 1952, without having changed the designation on the bank's records, at which time the balance on deposit was $1,300. It was further stipulated no deposits or withdrawals were made between April 14, 1952, and April 28, 1952; that the bank did not consider the designation as authority for Tony Kohlfeld to draw checks on said account, and checks drawn by him would not have been honored, and that Henry Kutz at all times retained the right to draw checks on the account. It was further agreed that respondent was duly appointed and acting administrator of the estate of Henry Kutz, and that through proper probate proceedings Agnes Kohlfeld, as surviving widow, became entitled to all rights in said fund to which Tony Kohlfeld may have been entitled.
Appellant claims the fund on the theory that the undisputed facts show an executed gift causa mortis, and that if the facts fall short of constituting a completed gift then they show the creation of a trust in favor of appellant's husband on the death of the donor.
To establish a gift causa mortis it is essential to prove that it was made in reasonable expectation of impending death. Northrip v. Burge, 255 Mo. 641, 164 S.W. 584; Slager v. Allen, Mo.App., 220 S.W.2d 752.
There is nothing contained in the agreed statement of facts to indicate that Henry Kutz was ill at the time he gave the direction to the cashier of the bank, or that he was in reasonable expectation of impending death. The fact that Henry Kutz died fourteen days after giving his instructions to the cashier is not sufficient to show that the direction was given in contemplation of impending death. For all that appears from the record, Henry Kutz may have died as the result of an unforeseeable accident.
Without a delivery, either actual or symbolic, or to someone in behalf of the donee, there can be no valid gift, either causa mortis or inter vivos. Slager v. Allen, supra; Cartall v. St. Louis Union Trust Co., 348 Mo. 372, 153 S.W.2d 370; Tygard v. McComb, 54 Mo.App. 85; Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132; Martin v. First National Bank, 206 Mo.App. 629, 227 S.W. 656. Henry Kutz did not deliver anything to Tony Kohlfeld or to anyone in his behalf. Appellant, in her briefs, does not suggest to whom there was a delivery. Henry Kutz did not part with control of the account, and he at no time surrendered his exclusive right to withdraw the account, partially or fully. There was no change insofar as his dominion over the fund was concerned before or after the time the direction to the cashier was given. The fact he did not withdraw funds is not evidence he did not have the right to do so, in view of...
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