Commonwealth Trust Co. v. Du Montimer

• Decision Date: 08 February 1916
• Docket Number: No. 14760.,14760.
• Parties: COMMONWEALTH TRUST CO. v. DU MONTIMER et al.
• Court: Missouri Court of Appeals

183 S.W. 1137

193 Mo. App. 290

COMMONWEALTH TRUST CO. v. DU MONTIMER et al.

No. 14760.

St. Louis Court of Appeals. Missouri.

February 8, 1916.

Rehearing Denied March 28, 1916.

Error to St. Louis Circuit Court; Rhodes E. Cave, Judge.

Bill of interpleader by the Commonwealth Trust Company against Katherine Du Montimer, Margaret K. Reagan, and another. Judgment for defendant Reagan and another, and defendant Du Montimer brings error. Reversed, and remanded with directions.

George B. Webster and Vital W. Garesche, both of St. Louis, for plaintiff in error. Thomas E. Mulvihill, of St. Louis, for defendants in error.

REYNOLDS, P. J.

The Commonwealth Trust Company (hereafter called the Trust Company) brought its bill of interpleader against Katherine Du Montimer, Margaret K. Reagan and William L. Fitzgerald, the latter as the executor of the estate of Thomas F. Fitzpatrick, deceased, for the purpose of determining the ownership of a deposit of $1359.95 in the hands of the Trust Company in its savings department, the right to which was asserted by Katherine Du Montimer, she claiming that the fund was a joint fund belonging to herself and Thomas F. Fitzpatrick as joint owners and that having survived, she was entitled to the whole of it. Margaret K. Reagan claimed it as sole legatee of Fitzpatrick, and Fitzgerald claimed it as executor under that will, averring that the fund represented moneys earned and saved by Fitzpatrick during his life and deposited by him with the Trust Company from time to time for safekeeping; that he was at all times sole and absolute owner of it and that it was at all times under his dominion and control and so remained up to his death, and on that happening, passed to the executor as part and parcel of the estate of Fitzpatrick. Bringing the fund into court, the Trust Company asked the court to determine the ownership of the fund as between these three parties, each claiming it as above. The will referred to is not in evidence, but it does not appear that there was any specific bequest of this fund, Margaret K. Reagan being general legatee of the testator.

It appears by the evidence in the case that the Trust Company maintained a savings department and that in January, 1912, Thomas F. Fitzpatrick opended a savings account in his own name with the Trust Company. When he opened this account a card was made out for the identification of Fitzpatrick, he signing it, his place of residence and birth date, occupation, and mother's name being written on the card. At that time and down to March 4th it appears that Fitzpatrick had on deposit with the savings department of the Trust Company about $200. On that date Fitzpatrick went to the Trust Company, and stated to Mr. Robert L. Gurney, the manager of the savings department, that he wanted to make his account a joint account and add the name of his sister, that is Katherine Du Montimer, plaintiff in error, jointly with himself, to it. Thereupon appropriate changes were made in the books of the Trust Company, changing the account from the name of Fitzpatrick to him and Mrs. Du Montimer, and the words "either or survivor to draw" were stamped on the identification card in purple letters with a rubber stamp. A card was thereupon made out and sent to Mrs. Du Montimer, who then resided in New York, for her signature. This card was apparently signed by her and returned by mail to the Trust Company. On the identification card sent to Katherine Du Montimer, at the top of it, are the words printed, "I hereby agree to the by-laws, rules and regulations governing the savings department of Commonwealth Trust Company. Confer with Mr. Delahunt or R. L. G. on this before paying. R. L. G. Either or survivor to draw." (R. L. G. are apparently the initials of Mr. Gurney.) Following the foregoing is what purports to be the signature of Katherine Du Montimer, her address, place and date of birth and her maiden name. On the reverse side of the card appears the following:

                                "St. Louis, Mo., ____ 19__
                

"The undersigned hereby agree to and with each other and the Commonwealth Trust Company, to and do hereby open an account with said Commonwealth Trust Company, and authorize, empower and direct said Trust Company to open an account with us in the name of

                                    "Thomas F. Fitzpatrick
                                    "Katherine Du Montimer
                

payable to either, or the survivor or under such other designation as said Trust Company may employ. And we agree that we are and shall be joint owners of all money deposited or which may hereafter be deposited to the credit of said account, and of all accrued and accruing interest thereon, and that upon the death of either of us the moneys then on deposit to the credit of said account shall become and be the property of the survivor.

"And we are mutually agreed and hereby notify said Trust Company that each or either of us, or the survivor of us, may at all and any times withdraw and receive from said Trust Company the whole or any part of said moneys now deposited, or which may be hereafter deposited to the credit of said account; that each of us is authorized and empowered to sign our respective names, or the name or names of any or either of us to any receipt, check, draft or other voucher for the money so drawn, and such receipt, check, draft or other voucher, so signed, shall be a full acquittal to said Trust Company for all moneys so withdrawn from said account.

                  "Witnesses
                   "______."
                

Whether the names of Thomas F. Fitzpatrick and Katherine Du Montimer as they appear here in the body of this were signed by them is not clear, Mr. Gurney testifying that "the signature on the card was that of Fitzpatrick." What signature he refers to is not clear. These cards were in evidence and with oral testimony constituted all the evidence in the case. The oral evidence was given by Mr. Robert L. Gurney. He testified, on direct examination, that on or prior to March 4th, 1912, he was manager of the savings department of the Trust Company and that on or about that date Thomas F. Fitzpatrick came to the banking house of the Trust Company and in his presence stated that he wanted to make his account a joint account and add his sister's name to it. He was informed that he would have to send a card to his sister to have her sign it; that her name was thereupon added to that of Thomas F. Fitzpatrick on the books of the Trust Company and the card sent to Katherine Du Montimer for her signature, along with a letter advising her of the action of her brother, and was subsequently returned, in answer to the letter, to the Trust Company by mail. He also testified that on July 2nd, 1913, the balance in the savings account amounted to $1435.14, and that on December following a credit of $24.81 representing accrued interest was added; that Fitzpatrick withdrew $100 on January 15th, 1914, leaving a balance in bank of $1359.95 at the time of his death, which occurred July 26th, 1914. This was the amount paid into court by the Trust Company on filing the bill of interpleader, less certain expenses and costs allowed the Trust Company.

On cross-examination Mr. Gurney testified that he did not charge his memory with every detail of the transaction but remembered it from his acquaintance with Fitzpatrick and from the circumstances attending the matter. All that he recalled was the fact of Mr. Fitzpatrick being there and making the change and that on that day the Trust Company had written a letter to Mrs. Du Montimer. He further testified that all that any person taking out a joint account has to do is to fill in the blanks in a form, and so far as the contract is concerned that is already prepared, printed on the back of the identification card, and the party is required to sign the card. He further testified that the Trust Company had received no deposit from Mrs. Du Montimer; that he was familiar with the rules governing the withdrawal of funds in the savings account; that it was not possible to withdraw the fund without the presentation of the pass book, and that parties depositing in a joint account must conform to these rules; that the pass book is a voucher issued by the Trust Company to the depositor, and the book representing this account was given to Mr. Fitzpatrick. Asked if he was prepared to state just what the conversation was between himself and Mr. Fitzpatrick at the time the joint account was opened, other than disclosed by the record, witness answered that he remembered that he had the conversation and that he wrote in the letter to Mrs. Du Montimer, "To-day your brother, who has a savings account with us, requested that we add your name to the account. We therefore inclose signature card," and so on. He further stated that prior to the time he had this conversation with Mr. Fitzpatrick about changing his account to a joint account, he did not know Mrs. Du Montimer. Asked whether her name was suggested to Fitzpatrick by witness, or by witnesses to Fitzpatrick, he answered that the letter, evidently referring to the letter to Mrs. Du Montimer, would seem to indicate that Fitzpatrick must have suggested it.

This is substantially all the evidence in the case. Upon its conclusion the trial court, by its judgment, awarded the fund to William L. Fitzgerald, as executor. Mrs. Du Montimer, filing her motion for new trial and excepting to the overruling of that motion, sued out her writ of error.

The points made by counsel for plaintiff in error are: First, that the transfer of the deposit from Fitzpatrick to the credit of himself and of Mrs. Du Montimer, payable to either or the survivor, created a joint tenancy between them and on his death the fund passed by operation of law to her. Second, the mere fact that either might have drawn in the lifetime of the other, does not negative the effect of the death of one, at least as to so much of the deposit as remained; nor does the fact that the pass book was retained by...