Bunker v. Fidelity Natl. Bank & Trust Co.

• Decision Date: 12 June 1934
• Docket Number: No. 31238.,31238.
• Citation: 73 S.W.2d 242
• Parties: BERTHA A. BUNKER v. FIDELITY NATIONAL BANK AND TRUST COMPANY ET AL., OLIVE E. MICHELSEN, Executrix of Last Will and Testament of WALTER A. BUNKER, Appellant.
• Court: Missouri Supreme Court

73 S.W.2d 242

BERTHA A. BUNKER v. FIDELITY NATIONAL BANK AND TRUST COMPANY ET AL., OLIVE E. MICHELSEN, Executrix of Last Will and Testament of WALTER A. BUNKER, Appellant.

No. 31238.

Supreme Court of Missouri.

Division One, June 12, 1934.^*

Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.

AFFIRMED.

Porter B. Godard and Beardsley & Beardsley for appellant.

(1) The pleadings of the parties follow a judgment of interpleader between them. The proceeding then is in equity and the court will consider all the testimony and decide the cause. Harris Banking Co. v. Miller, 190 Mo. 659; Commonwealth Trust Co. v. DuMontimer, 193 Mo. App. 300; South St. J. Live Stock Exc. v. St. J. Stockyards Bank, 223 Mo. App. 632. (2) The facts and circumstances in this case do not fulfill the requirements of the law for the creation of a trust. The law requires that the proof shall be clear and certain, establishing the gift beyond a reasonable doubt. Northrip v. Burge, 255 Mo. 655; Frank v. Heimann, 302 Mo. 345; Harding v. St. Louis Union Trust Co., 276 Mo. 146; Keyl v. Westerhaus, 42 Mo. App. 57; Pitts v. Weakley, 155 Mo. 134; Ambruster v. Ambruster, 31 S.W. (2d) 34; Note 23 A.L.R. 1520; Norway Savings Bank v. Merriam, 88 Me. 146, 33 Atl. 340; Bath Savings Institution v. Togg, 101 Me. 188, 63 Atl. 731; Colnory v. Fanning, 124 Md. 548, 92 Atl. 1045; Taylor v. Henry, 48 Md. 550; Matthias v. Fowler, 124 Md. 655, 92 Atl. 298. (3) A gift by means of an executed trust could not be made without the present parting with title by the alleged donor. Nothing of that sort was done as to the securities involved here. Harding v. St. Louis Union Trust Co., 276 Mo. 136; In re Estate of Soulard, 141 Mo. 660; Godard v. Conrad, 125 Mo. App. 175; Dunn v. German-American Bank, 109 Mo. 99; Basket v. Hassell, 107 U.S. 602; Eschen v. Steers, 10 Fed. (2d) 741; Korompilos v. Tompras, 251 S.W. 81; Van Studdiford v. Randolph, 49 S.W. (2d) 254; Adams v. Hagerott, 34 Fed. (2d) 899; Pomeroy Equity Jurisprudence (3 Ed.) 998; Citizens Natl. Bank v. McKenna, 168 Mo. App. 257. (4) The testimony of Miss Michelsen, Mr. Norris and Mrs. McKeown touching statements alleged to have been made by Mr. Bunker after the time of the taking out of the receipts in controversy, was not only incompetent as expressions of opinion, but affirmatively did not undertake to add anything of writing or of oral statement or of fact to the transaction at the time of the taking of the receipts, which is the time when it is claimed a trust was created. Northrip v. Burge, 255 Mo. 669; Hayes v. Claessens, 179 N.Y. Supp. 153. (5) There is here no joint tenancy or tenancy by the entirety, in any event. Deslauriers v. Senesac, 334 Ill. 440, 163 N.E. 327; 8 R.C.L., pp. 811, 812, 821, 822; Ambruster v. Ambruster, 31 S.W. (2d) 36; Staples v. Berry, 110 Me. 32, 85 Atl. 305. (6) There is no evidence in this record of any purpose on the part of Mr. Bunker, at the time he took the receipts in controversy from the bank; that from that time forward, Mrs. Bertha A. Bunker, respondent, should have any present interest in either the capital or the income of the bonds in question. His statement made afterwards that he had fixed it so she would get the bonds after his death, was at most, testamentary in its character; also a mere expression of opinion. Godard v. Conrad, 125 Mo. App. 176; Dunn v. German-American Bank, 109 Mo. 99, 118 S.W. 1139; Elizabeth Bieber's Admr. v. Boeckmann, 70 Mo. App. 508; Basket v. Hassell, 107 U.S. 610, 2 Sup. Ct. 415, 27 L. Ed. 500; Mahan v. Plank, 289 Fed. 722. (7) It was an error to permit Mrs. Bunker, the respondent, to testify. R.S. 1919, sec. 5410; R.S. 1929, sec. 1723; Leavea v. So. Ry. Co., 266 Mo. 151; Leavea v. So. Ry. Co., 171 Mo. App. 24.

Charles M. Bush and Roy W. Crimm for respondent.

(1) The bonds immediately became the property of W.A. Bunker and Bertha A. Bunker, as joint tenants, when they were deposited with the New England National Bank & Trust Company in the name of W.A. Bunker and Bertha A. Bunker or survivor. Sec. 5465, R.S. 1929; Sec. 11840, R.S. 1919; Commonwealth Trust Co. v. Du Montimer, 193 Mo. App. 306, 183 S.W. 1137; Ball v. Mercantile Trust Co., 220 Mo. App. 1175, 297 S.W. 415; Mississippi Valley Trust Co. v. Smith, 9 S.W. (2d) 62; Murphy v. Wolfe, 45 S.W. (2d) 1079. (2) There being no evidence in this case of any agreement between the depositors, showing that joint ownership was not intended to be established, the provisions of the statute determines that respondent Bertha A. Bunker, as surviving joint tenant is the sole owner of and entitled to the possession of the bonds. Sec. 5465, R.S. 1929; Sec. 11840, R.S. 1919; Ball v. Mercantile Trust Co., 220 Mo. App. 1165, 297 S.W. 418; Mississippi Valley Trust Co. v. Smith, 9 S.W. (2d) 63; Murphy v. Wolfe, 45 S.W. (2d) 1081; Crowley v. Savings Bank & Trust Co., 30 Cal. App. 144, 157 Pac. 518; Barstow v. Felter, 87 Atl. 829, 115 Me. 96. (3) Regardless of the statute, the deposit of the bonds in the name of W.A. Bunker or Bertha A. Bunker or survivor created a joint tenancy, and respondent, as surviving joint tenant, is the sole owner. Commonwealth Trust Co. v. Du Montimer, 193 Mo. App. 290, 183 S.W. 1137; Ball v. Mercantile Trust Co., 220 Mo. App. 1165, 297 S.W. 418; Mississippi Valley Trust Co. v. Smith, 9 S.W. (2d) 63; Murphy v. Wolfe, 45 S.W. (2d) 1082; In re Martin's Est., 217 Mo. App. 418, 266 S.W. 751; In re Taylor's Est., 182 N.W. 101. (4) The deposit with the trust company, of the bonds in question, was such a deposit as to come under the express provisions of the statute. Butcher v. Butler, 134 Mo. App. 61, 114 S.W. 564; Phillips v. Franciscus, 52 Mo. 370; 18 C.J. 562; Sec. 5421, R.S. 1929; 18 C.J. 565; Gaty v. French, 3 S.W. (2d) 1043; Wright v. Paine, 62 Atl. 344, 34 Am. Rep. 24; Ex parte Huston, 147 Pac. 1066; 48 C.J., p. 732; McCullough's Est., 14 Pa. Dist. 7, 31 Pa. Co. Ct. Rep. 16; Dunn v. Houghton, 51 Atl. 83. (5) The deposit of the bonds as made with the New England National Bank & Trust Company met every requirement for the creation of a joint tenancy with right of survivorship. Gosney v. Costigan, 33 S.W. (2d) 953, 326 Mo. 1215; Jones v. Jones, 201 S.W. 557; Thornton on Gifts and Advances, 1893, sec. 86, p. 71; In re Sander's Est., 223 N.Y. Supp. 588, 129 Misc. Rep. 780. The testimony of witnesses, showing admissions by Mr. Bunker against interest, was competent. Robertson Bros. v. Garrison's Est., 21 S.W. (2d) 203; Shern v. Sims, 258 S.W. 1029; Blount v. Honey, 42 Mo. App. 644; Cape Co. Bank v. Wilson, 34 S.W. (2d) 985; Crowley v. Savings, etc., Co., 30 Cal. App. 144, 157 Pac. 518. The testimony of respondent, on her own behalf, was competent. Robertson Bros. v. Garrison's Est., 21 S.W. (2d) 202; Knickerbocker v. Athletic Tea Co., 285 S.W. 799.

FERGUSON, C.

This suit involves the right to possession and title and ownership of certain unregistered United States Government Bonds in principal sums aggregating $21,150. The bonds were deposited, for sake-keeping, by W.A. Bunker with the New England National Bank and Trust Company of Kansas City. After the death of W.A. Bunker the New England National Bank and Trust Company merged and consolidated with defendant Fidelity National Bank and Trust Company (of Kansas City) whereupon the bonds so deposited with the New England National Bank and Trust Company came into the possession of the defendant Fidelity National Bank and Trust Company and were held by it under the terms and conditions governing the deposit thereof by Bunker with the New England National Bank and Trust Company. The bonds were deposited as the property of "W.A. Bunker or Bertha A. Bunker or Survivor." After the death of W.A. Bunker, Bertha A. Bunker made demand upon the defendant Fidelity Bank and Trust Company for the bonds so deposited and then held by it. The demand being refused she filed an action in replevin against the Fidelity Bank and Trust Company to recover possession of the bonds, alleging that she is the owner and entitled to the possession thereof and that defendant trust company "wrongfully detains same." The defendant trust company filed its answer and cross-bill admitting that the bonds described in plaintiff's petition had been originally deposited by W.A. Bunker with the New England Bank and Trust Company; that receipts, verified copies of which were attached, had been issued therefor and that said bonds were held by it; but states that "Olive E. Michelsen, as executrix of the estate of Walter A. Bunker, deceased, claims to be the owner and entitled to the possession of said" bonds "which claim is adverse and directly opposed to the claim of plaintiff who claims to be the owner and entitled to the possession" thereof. By its answer and cross-bill the trust company disclaims any title to or interest in the bonds, except that it holds them for safe-keeping only, and avers that it "is ready and willing to deliver them to the rightful owner;" asks that the executrix be made a party to the action and that the court "adjudge and determine" as between the adverse claimants, Bertha A. Bunker and the executrix, which is the "rightful owner of and entitled to the possession of" said bonds and "direct" it "to dispose of" same accordingly and that it be discharged. The executrix was made a party defendant. Following a judgment of interpleader the plaintiff Bertha A. Bunker and defendant Olive E. Michelsen, executrix, filed appropriate pleadings each claiming ownership and right to possession of the bonds held by the trust company. Trial of that issue, thus framed, was had before the court, without a jury, and the finding and judgment of the court was for the plaintiff Bertha A. Bunker; the executrix has appealed.

Walter A. Bunker was a resident of Kansas City. He owned large and valuable property interests, in the form of numerous parcels of real estate, bonds, stocks and other securities and cash. In 1921 the New England National Bank (later...