Carroll v. Hahn

• Decision Date: 19 June 1973
• Docket Number: No. 34721,34721
• Citation: 498 S.W.2d 602
• Parties: Albert R. CARROLL, Plaintiff-Appellant, v. Adell HAHN and Roosevelt Federal Savings & Loan Association, Defendants-Respondents. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 602

498 S.W.2d 602

Albert R. CARROLL, Plaintiff-Appellant, v. Adell HAHN and Roosevelt Federal Savings & Loan Association,

Defendants-Respondents.

No. 34721.

Missouri Court of Appeals, St. Louis District, Division Two.

June 19, 1973.

Motion for Rehearing or Transfer Denied Aug. 16, 1973.

King & Short, Clayton, for plaintiff-appellant.

John H. Scheele, Kirkwood, for Hahn.

Millar, Schaefer, Ehling & Wallace, Samuel C. Ebling, St. Louis, for Roosevelt Federal.

SIMEONE, Judge.

This is an appeal by plaintiff-appellant, Albert R. Carroll, from a judgment entered by the Circuit Court of St. Louis County which declared the defendant-respondent, Adell Hahn, to be the sole, lawful owner of a savings account in Roosevelt Federal Savings & Loan Association.

On March 18, 1971 Carroll filed a petition in the Circuit Court of St. Louis County seeking to impress a trust upon funds in a joint savings account at Roosevelt Federal and praying that said funds 'be declared in equity the property of Plaintiff.' The petition alleged that on December 24, 1970 an account was opened with an initial deposit of $4,373.27 at Roosevelt Federal (No. 21--05023) in the names of Albert R. Carroll and Leroy Purdy (Carroll's stepfather) as 'joint tenants with right of survivorship.' Then on February 8, 1971 Mr. Purdy, without the consent and knowledge of Carroll, transferred the account (containing $4,813.27) to another one in the names of Purdy and defendant, Adell Hahn. On March 15, 1971 Mr. Purdy died. Carroll alleged in his petition that as the survivor he is entitled to the proceeds of the account. The answer of Hahn alleged that the initial account was opened with funds belonging to Purdy and that the account was opened for the purpose of 'convenience only.' The answer further alleged that Purdy 'closed said account . . . by withdrawing the balance thereof in an amount of $4,813.27 and by transferring the same' to another account in the names of Purdy and Adell A. Hahn 'payable to either or the survivor as joint tenants (with rights of survivorship) and not as tenants in common.' Roosevelt Federal also filed an amended answer admitting the facts alleged in the petition and answer, and stated that it was indifferent to the claims and had 'no interest in or claim upon the monies held.'

The evidence on behalf of the plaintiff showed that Carroll and Hahn are cousins; that Leroy Purdy was the stepfather of Carroll (Purdy and Carroll's mother having been married in 1936). Carroll had lived with his mother and stepfather from 1936 until 1941 and again from 1945 through most of 1946. After the marriage of Purdy and Carroll's mother in 1936 they bought a home in St. Louis County with funds left to Carroll in 1936 by his uncle and loaned to Purdy and his mother. They lived in that home for a time and then purchased a home in North St. Louis with funds from the sale of the home in the county. Carroll's mother died in 1970 and after that Purdy came to live with Carroll.

Mr. Purdy and his wife (Carroll's mother) had a joint savings account at Roosevelt Federal in an amount of approximately $4,000, and following the death of Purdy's wife an account was created in the names of Purdy and Carroll. Carroll contended these funds came from the 'sale of the property.' Carroll testified that there was an understanding between Purdy and himself that the money from the loan would be Carroll's if he survived Purdy.

At the time the Purdy-Carroll account was closed on February 8, 1971, Purdy was living with Adell Hahn and her husband. After Purdy's death Carroll was told by Mr. Hahn that the account had been 'changed.' Upon investigation Carroll learned that the account had been closed and a new one opened in the names of Purdy and Adell Hahn.

On cross-examination Carroll stated that he did not know whether his uncle had left a will and explained the 'money' left him by saying 'Well, let's put it this way, my mother was working in a laundry and I was going to school. Somebody was paying it; it wasn't my mother.'

From the time of the death of Mrs. Purdy on December 13, 1970, to December 24, 1970, the only person on the Mr. and Mrs. Purdy account was Mr. Purdy. On December 24 Mr. Purdy added Carroll's name to the account. When asked whose funds were used to open the Purdy-Carroll account Carroll's answer was 'My mother's, my stepfather's and mine--.' Carroll made no deposits or withdrawals into or from the account.

Adell Hahn testified that she was a niece by marriage to Leroy Purdy and that she and Carroll were first cousins; that she lived with Leroy Purdy while her husband was in the service and then Purdy resided in her home for several months prior to his death. Prior to his death Mr. Purdy brought a signature card home for her to sign relating to the Purdy-Hahn joint account in Roosevelt Federal and Mr. Purdy returned it. Mr. Purdy possessed the passbook.

On June 1, 1972 the trial court made extensive findings of fact and conclusions of law. The court found that in 1969 a joint account in the names of Leroy Purdy and his wife, Anna M. Purdy, was opened at Roosevelt Federal Savings & Loan Association; that thereafter Anna Purdy died on December 13, 1970; that on December 24, 1970 the balance of the account in an amount of $4,349.67 was transferred by Purdy to a new account in the names of Purdy and Carroll, payable to either or the survivor as joint tenants, and that the account was closed on February 8, 1971, at a time when the account contained a balance of $4,813.27. The court found that on February 8, 1971 this balance was transferred by Purdy to a new savings account in the names of Purdy and Hahn 'payable to either or the survivor as joint tenants and not as tenants in common.' The court further found that upon the death of Purdy Adell Hahn 'became and continues to be the sole surviving tenant of said savings account'; that 'Plaintiff has failed to sustain the burden of proof essential to establish any vested interest in Plaintiff to any of the funds . . .' and failed to sustain the burden of proof essential to establish a resulting trust in his favor.

The court concluded, therefore, that after Purdy opened the Purdy-Carroll account Purdy was lawfully entitled to withdraw and appropriate to his own use any portion, including the entire balance of funds to the account, and that he lawfully withdrew the entire balance by transferring the same to a new savings account in the names of Purdy and Hahn, payable to either or the survivor as joint tenants and not as tenants in common. Therefore, upon the death of Purdy the balance in the Purdy-Hahn account, in an amount of $4,813.27 with interest thereon, 'became vested solely and entirely in Defendant Adell A. Hahn as the sole surviving tenant of said savings account . . .'

The appellant's only point on this appeal is that the trial court erred in refusing to impress a constructive trust on the funds in his favor because he had a vested interest in the funds and because they were improperly withdrawn and assigned without his consent to his damage. As best we understand it, appellant's theory is that: (1) there was sufficient evidence to conclude that the funds in the accounts originated from an inheritance from his uncle some 30 years before, and (2) once the joint account was opened in the names of Purdy and Carroll on December 24, 1970, Purdy could not, without Carroll's knowledge and consent, assign the entire account in such manner as to divest him of his rights to the funds, but the funds retained their character as joint property and may be traced to the Purdy-Hahn account.

This is a court-tried case. We are required to review the case de novo both upon the law and the evidence and make our own independent findings of fact, but we are not to set aside the judgment of the trial court unless clearly erroneous, giving due regard to the opportunity of the court to judge the credibility of the witnesses. Rule 73.01(d), V.A.M.R.

We agree with the trial court that the plaintiff failed to sustain the burden of proof essential to establish a trust in his favor or to establish any actual interest in or any right to the funds in controversy.

Appellant based his right to the funds on a claim that he received an inheritance in 1936 and that he loaned this money to his mother and his stepfather, Mr. Purdy, so they could buy a home in St. Louis County. Now, over thirty years later, during which time Mr. and Mrs. Purdy bought and sold several homes, appellant is claiming that the money can be traced and that he has an interest in the money in the account. The evidence as developed in the record was insufficient to sustain appellant's burden to establish that the money in the account belonged to him under any theory, including that of a constructive or resulting trust. There is not clear, cogent, convincing proof of a purported loan, no evidence as to the amount of any loan or any clear evidence to trace the money so as to show Carroll's ownership in the present funds.

In Ambruster v. Ambruster, 326 Mo. 51, 31 S.W.2d 28 (1930), the supreme court stated that 'The rule is well settled that an extraordinary degree of proof is required to establish a parol (or constructive) trust . . . The cases use various expressions, as that the showing must be 'clear,' 'cogent,' 'convincing,' or 'such as to leave no room for a reasonable doubt in the mind of the chancellor. " Ambruster v. Ambruster, supra, 31 S.W.2d at 34. Under these tests Carroll failed to sustain his burden of proof to establish a trust in his favor.

The appellant also contends that while one joint owner of a joint account may withdraw a portion or all of the account, he may not assign the entire account so as to divest the other joint tenant of his interest in the funds. In such instance he contends that the funds retain their character as joint property and may be traced so that a trust may be impressed thereon. Implicit in his...