Clevidence v. Mercantile Home Bank & Trust Co.

• Decision Date: 13 January 1947
• Docket Number: No. 39795.,39795.
• Citation: 199 S.W.2d 1
• Parties: GILBERT H. CLEVIDENCE, Executor of the Estate of GURRETTIE VIOLA FORSTER, Deceased, Appellant, v. MERCANTILE HOME BANK AND TRUST COMPANY, Executor of the Estate of PETER T. FORSTER, Deceased.
• Court: Missouri Supreme Court

199 S.W.2d 1

GILBERT H. CLEVIDENCE, Executor of the Estate of GURRETTIE VIOLA FORSTER, Deceased, Appellant, v. MERCANTILE HOME BANK AND TRUST COMPANY, Executor of the Estate of PETER T. FORSTER, Deceased.

No. 39795.

Supreme Court of Missouri.

Division Two, January 13, 1947.

Motion for Rehearing or to Transfer to Banc Overruled, February 10, 1947.

Appeal from Jackson Circuit Court. — Hon. Brown Harris, Judge.

AFFIRMED IN PART, AND REVERSED IN PART.

William A. Kitchen for appellant.

(1) Under the provisions of Sec. 7996, R.S. 1939, the form in which bank deposits are made gives rise to a rebuttable presumption to a joint ownership with the attendant right of survivorship. Mercantile Bank v. Haley, 179 S.W. (2d) 916; Schnur v. Dunker, 38 S.W. (2d) 282; Melinik v. Meier, 124 S.W. (2d) 594. (2) The statute was enacted to protect banks in the payment of deposits made in the manner prescribed therein and also in the absence of competent evidence to the contrary, to actually fix the ownership of the funds in the persons named, as joint tenants. Melinik v. Meier, 124 S.W. (2d) 594; Ball v. Mercantile Trust Co., 220 Mo. App. 1165, 297 S.W. 415; Mississippi Valley Trust Co. v. Smith, 320 Mo. 989, 9 S.W. (2d) 58; Ambruster v. Ambruster, 326 Mo. 51, 31 S.W. (2d) 28; Schnur v. Dunker, 38 S.W. (2d) 282. (3) The cases uniformly hold that while the statute presumptively establishes joint ownership in the funds deposited, with the right of survivorship, the presumption may be overcome by competent evidence that a joint ownership was not intended and not in fact conferred. In re Geel's Estate, 143 S.W. (2d) 327; Ball v. Mercantile Trust Co., 220 Mo. App. 1165, 297 S.W. 415; Melinik v. Meier, 124 S.W. (2d) 594; Schnur v. Dunker, 38 S.W. (2d) 282. (4) The form of the deposit raises only a presumption of joint ownership which yields to competent evidence showing an intention contrary to a joint ownership. Ball v. Mercantile, 220 Mo. App. 1165, 297 S.W. 415; Mississippi Valley Trust Co. v. Smith, 320 Mo. 989, 9 S.W. (2d) 58; Schnur v. Dunker, 38 S.W. (2d) 282. (5) The presumption created by the form of joint bank accounts is a weak one and readily yields to parol proof of the real intention of the parties. Ambruster v. Ambruster, 326 Mo. 51, 31 S.W. (2d) 28. (6) To constitute a valid gift of personal property it is essential that the property be delivered by the donor to the donee, or someone for him, with an intention on the part of the donor to part with his right in and dominion over the subject of the gift, and that it be accepted by the donee, whose ownership must take effect immediately and absolutely with future dominion and control over the property vested in the donee. Trautz v. Lemp, 329 Mo. 580, 46 S.W. (2d) 135; Cartall v. Trust Co., 348 Mo. 372, 153 S.W. (2d) 370; Coon v. Stanley, 230 Mo. App. 524, 94 S.W. (2d) 96. (7) In cases like this the question of intent on the part of the alleged donor is a vital matter. Murphy v. Wolfe, 329 Mo. 545, 45 S.W. (2d) 1079; Coles v. Belford, 289 Mo. 97, 232 S.W. 728; Trautz v. Lemp, 329 Mo. 580, 46 S.W. (2d) 135. (8) The expressed intention of Mrs. Forster, as evidenced by her will dated November 9, 1933, and her last will, which was probated, coupled with her acts and conduct in managing her affairs, checking out money to make investments, exercising control over her property, all show that she had no conception of the legal meaning of the form of a joint bank account. Mercantile Bank v. Haley, 179 S.W. (2d) 916. (9) The defendant in this case is not entitled to recover the property of Mrs. Forster for the estate of Mr. Forster for the reasons (a) she exhibited a positive intention not to give her property to her husband and (b) he acquired possession and appropriated her money to his own use without her written consent in violation of law. Sec. 3390, R.S. 1939; Joerden v. Stumpe, 232 Mo. App. 959, 106 S.W. (2d) 543; Winn v. Riley, 151 Mo. 61, 52 S.W. 27. (10) Delivery to the donee is an essential element of a gift. Perry v. First Natl. Bank, 228 Mo. App. 463, 68 S.W. (2d) 927; Cremer v. May, 223 Mo. App. 57, 8 S.W. (2d) 110; Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132. (11) The requirement of delivery in making valid gifts is based upon public policy and constitutes a means of preventing mistake, imposition and perjury. Napier v. Eigel, 350 Mo. 111, 164 S.W. (2d) 908. (12) In order to constitute an effectual delivery the donor must not only have parted with the possession of the property but must also have relinquished to the donee all present and future dominion and control over it, beyond any power on his part to recall. The surrender must be so full and complete that if the donor resumes control over the property without the consent of the donee he will be answerable in damages as a trespasser. Roethemeier v. Veith, 334 Mo. 1030, 69 S.W. (2d) 930; Reynolds v. Hanson, 191 S.W. 1030; 28 C.J. 635, sec. 23. (13) The burden of proof establishing a gift inter vivos is upon the party claiming a gift and must be established by conclusive evidence. This is especially true where the alleged gift is not asserted until after the death of the alleged donor, and gifts thus preferred after death of the alleged donor, are regarded with suspicion by the courts. In re Franz Estate, 344 Mo. 510, 127 S.W. (2d) 401; Burns v. Plaza Bank, 141 S.W. (2d) 209; Cremer v. May, 223 Mo. App. 57, 8 S.W. (2d) 110; Manley v. Ryan, 235 Mo. App. 45, 126 S.W. (2d) 909; Reynolds v. Hanson, 191 S.W. 1030; Jones v. Falls, 101 Mo. App. 536, 73 S.W. 903. (14) He who attempts to establish title to property through a gift inter vivos, as against the estate of a decedent, takes upon himself a heavy burden, which he must support by evidence of great probative force, which clearly establishes every element of a valid gift. The defendant made no attempt to meet this burden. Cremer v. May, 223 Mo. App. 57, 8 S.W. (2d) 110; McCune v. Daniels, 225 S.W. 1020; In re Van Fossen, 13 S.W. (2d) 1076; Jones v. Falls, 101 Mo. App. 536, 73 S.W. 903; Reynolds v. Hanson, 191 S.W. 1030; Tygard v. Falor, 163 Mo. 234, 63 S.W. 672. (15) The time when the gift is first asserted has a bearing on the issue of delivery and where an alleged gift inter vivos is asserted for the first time after the death of the alleged donor, an extraordinary degree of proof is required to establish a gift inter vivos. "Clear, cogent, and convincing" describes the standard which the testimony must meet so as to leave no room for a reasonable doubt in the mind of a chancellor. Stein v. Mercantile Home Bank & Trust Co., 347 Mo. 732, 148 S.W. (2d) 570; Cartall v. St. Louis Union Trust Co., 348 Mo. 372, 153 S.W. (2d) 370; Re Franz Estate, 344 Mo. 510, 127 S.W. (2d) 401; Jeude v. Eiben, 338 Mo. 373, 89 S.W. (2d) 960; Ambruster v. Ambruster, 326 Mo. 51, 31 S.W. (2d) 28; Foley v. Harrison, 233 Mo. 460, 136 S.W. 354; In re Van Fossen, 13 S.W. (2d) 1076; Reynolds v. Hanson, 191 S.W. 1030; McCune v. Daniels, 225 S.W. 1020. This is particularly true where as in this case a particularly confidential relationship existed between the donor and the donee. Gosney v. Costigan, 326 Mo. 1215, 33 S.W. (2d) 947. (16) Where husband and wife live together, the possession of the separate property of the wife by the husband will be deemed in law the possession of the wife, who has the title. Roethemeier v. Veith, 334 Mo. 1030, 69 S.W. (2d) 930; Stewart v. Ball's Adm., 33 Mo. 154; Joerden v. Stumpe, 232 Mo. App. 959, 106 S.W. (2d) 543. (17) After the alleged donor's death, the burden is on one claiming a gift inter vivos to sustain his claim by evidence of clear and unequivocal force which convinces the court beyond a reasonable doubt of its truthfulness. Albrecht v. Slater, 233 S.W. 8. (18) Where, as in this case, the alleged gifts comprised nearly the whole of the donor's personal estate, the court will require the most clear and satisfactory proof of the gift as well as its delivery. 38 C.J.S. 877, sec. 67; 28 C.J. 678, sec. 82; Bachseits v. Leichtweis, 256 Ill. 357, 100 N.E. 197; Reynolds v. Thompson, 161 Ky. 772, 171 S.W. 379. A gift of a husband's or father's entire estate to a wife or child by way of advancement is unreasonable and a presumption of a gift may be rebutted by slight evidence. 28 C.J., sec. 82, p. 678, note 56, citing the Bachseits case, 256 Ill. 357, 100 N.E. 197. (19) The removal of Mrs. Forster of HOLC bonds from the Pioneer box and placing them in the Mercantile box did not constitute a completed delivery of the bonds to Forster so that he could claim them as a valid gift. Trautz v. Lemp, 329 Mo. 580, 46 S.W. (2d) 135; Cartall v. St. Louis Union Trust Co., 348 Mo. 372, 153 S.W. (2d) 370; Napier v. Eigel, 350 Mo. 111, 164 S.W. (2d) 908; Albrecht v. Slater, 233 S.W. 8. (20) The fact that the money of Mrs. Forster, together with her bonds and other securities were deposited in a joint bank account, or in the joint safe deposit box, and Mr. Forster made most of the deposits, and otherwise transacted the business for her, did not make the property involved the property of Mr. Forster. Roethemeier v. Veith, 334 Mo. 1030, 69 S.W. (2d) 930; Joerden v. Stumpe, 232 Mo. App. 959, 106 S.W. (2d) 543. (21) Proof of intention alone will not suffice to complete a gift without proof of conduct showing the carrying out or fulfilment of that intention. Napier v. Eigel, 350 Mo. 111, 164 S.W. (2d) 909. (22) Her declarations of ownership as evidenced by her written memoranda, and her general conduct of retaining and exercising control over her property are inconsistent with the theory that she parted with the possession and control of her interest in the certificate. Roethemeier v. Veith, 334 Mo. 1030, 69 S.W. (2d) 930; Godwin v. Godwin, 141 Miss. 633, 107 So. 13; 28 C.J. 681, sec. 87. (23) The various memoranda, plaintiff's Exhibits 3, 4 and 5, all admittedly in the handwriting of Mrs. Forster, are admissible, competent evidence tending to characterize and explain her...