Citizens' Nat. Bank v. McKenna

• Decision Date: 03 February 1913
• Citation: 153 S.W. 521
• Parties: CITIZENS' NAT. BANK v. McKENNA et al.
• Court: Missouri Court of Appeals

153 S.W. 521

CITIZENS' NAT. BANK v. McKENNA et al.

Kansas City Court of Appeals. Missouri.

February 3, 1913.

1. GIFTS (§§ 15, 18) — "GIFT INTER VIVOS" — REQUISITES.

To constitute a "gift inter vivos," there must be both an intent to give and an actual delivery.

For other definitions, see Words and Phrases, vol. 4, pp. 3091-3093; vol. 8, p. 7671.]

2. TRUSTS (§§ 17, 18) — EXPRESS TRUSTS IN PERSONALTY — PAROL TRUSTS.

A trust in personalty may be created by parol, and a writing is required only for the creation of a trust in realty.

3. TRUSTS (§ 155) — EXPRESS TRUSTS — TRUSTEE.

A donor of personalty in trust may make himself the trustee.

4. TRUSTS (§ 31) — EXPRESS TRUSTS — CREATION.

To transfer personalty from the owner to a trustee for another, there must be a present and permanent change of title; and where the owner makes himself the trustee the title must pass from him individually, so that he will hold the property for the beneficiary.

5. TRUSTS (§ 34) — EXPRESS TRUSTS — CREATION.

A depositor made a deposit in a bank to the order of himself or a nephew. He declared at the time that he wanted the nephew to have the deposit in case of his death. He was then in ill health, and died 15 days later. He retained possession of the certificate of deposit. Held, that the deposit did not create a trust for the nephew with the depositor as trustee in possession, but merely showed an intention to make a testamentary disposition, to become effective at the depositor's death without other disposition of the deposit.

6. TRUSTS (§ 31) — EXPRESS TRUSTS — EXECUTORY TRUSTS — ENFORCEMENT.

Equity will not regard a transaction as creating a trust so long as it remains executory; but the property must pass out of the donor of the trust, so as to effectually pass the equitable title to the beneficiary.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Interpleader by the Citizens' National Bank against William McKenna and Thomas Austin, administrator of John McKenna, deceased. From a judgment for the administrator, William McKenna appeals. Affirmed.

H. K. White, of St. Joseph, and John L. Schmitz, of Chillicothe, for appellant. P. W. Harding, of Denison, Iowa, and A. W. Mullins, of Linneus, for respondent.

ELLISON, P. J.

The Citizens' National Bank of Chillicothe, Mo., held $3,500 which had been deposited by John McKenna. He died shortly after making the deposit, and his administrator and William McKenna, a nephew, each claimed the money. The bank brought action in equity, asking that the claimants be required to interplead for the money. They appeared and made their claim in due form. The result in the trial court was in favor of the administrator, and William appealed.

Deceased, John McKenna, was an old man possessed of considerable property, and without a family of his own. He died April 14, 1910. Near three weeks prior to his death, on March 26, 1910, he deposited the above sum in the bank and received the following certificate of deposit, payable to himself or interpleader William McKenna: "The Citizens' National Bank of Chillicothe. Chillicothe, Mo., Mar. 26, 1910. $3,500.00. John McKenna has deposited in this bank thirty-five hundred and no/100 dollars, payable in current funds to the order of himself or Wm. McKenna, six months after date, on return of this certificate properly indorsed, with interest to maturity only at the rate of 3 per cent. per annum. This certificate of deposit is not subject to check and draws no interest after maturity. R. F. McNally, Cashier."

Before this he had a time deposit of $2,000, drawing interest, and a checking account of $1,500. At the time of the deposit we have just set out, he came to the bank in company with William, whom he introduced to the cashier. He stated to the latter: "I have $2,000 in a certificate and $1,500 in my checking account. I want it put in a certificate to bear interest, payable to my nephew, William McKenna, in the event I die, or anything happens to me." The cashier's testimony continued as follows: "I said, `I can make the certificate to you or William McKenna.' I said, `Is that satisfactory?' And he said: `Yes; I want his name on the certificate.' I asked him how he was feeling, and he said he was a candidate for the `cemetery,' and I noticed it because in my relations with him it was the first time I heard him speak of dying. I put the certificate in an envelope, and he stayed around the bank about an hour, and I took him to the hospital in my automobile, with his nephew. That was the last time I ever saw him, and he died 15 days later." On further examination the witness repeated that deceased said that he "wanted the money to go to William in the event of his death, or anything happening to him."

During this conversation and transaction William said nothing. Deceased kept the certificate in his possession up to his death, without indorsement or change of any kind. There was other evidence tending to show that he intended the money for William. There was other evidence showing that a few days after the deposit deceased escaped from the Sisters' Hospital in Chillicothe, where he was staying, having evidently become deranged. He was taken back. So there was evidence that he had $2,375 in a glass jar buried under the floor of his cabin on his farm in Linn county, of which...