Connor v. Temm

Decision Date20 July 1954
Docket NumberNos. 28786,28788,s. 28786
PartiesCONNOR et al. v. TEMM.
CourtMissouri Court of Appeals

Ziercher & Tzinberg, Herbert W. Ziercher, F. William Human, Jr., Clayton, for appellants-respondents.

Lee, Fricke & Lee, John A. Wolf, St. Louis, for respondent-appellant.

ARONSON, Special Judge.

This is a suit by two brothers, as the executors of their mother's estate, to recover the sums withdrawn from two bank accounts, after the death of their mother and testatrix, by defendant, their sister, in whose name, jointly with the mother, the accounts had been opened. The theory of the amended petition is that while the accounts were joint accounts in form, actually they were opened for the convenience of the mother and solely with her funds, and without intention that they would become the property of the daughter, and, therefore, that the daughter was in a fiduciary capacity and was not a co-owner, with rights of survivorship.

The suit was brought in two counts, the first involving a checking account at the Jefferson Bank & Trust Co., with a balance of $1,495.89, and the second involving a savings account at the Mercantile-Commerce Bank & Trust Co., with a balance of $4,037,04. (The total amount of the two accounts is within the jurisdictional limits of this court.) The verdict of the jury was in favor of the executors on Count I and was against them on Count II. Cross-appeals have been taken from the judgment entered on said verdict.

Since all parties have appealed from the judgment of the Circuit Court, and each is an appellant on some phase of the case, as well as a respondent on some other phase, we shall avoid confusion by referring to the parties as plaintiffs and defendant, as they were in the trial court.

In the view we take of the case it is logical and desirable that we first consider and rule upon the issues presented on defendant's appeal. She obviously was not aggrieved by the verdict and judgment in her favor on Count II of the petition, and her claims of error may be considered as directed only to the judgment against her on Count I. The issues on the two counts were quite similar, and they were tried simultaneously, and yet it will simplify the issues if we confine our present discussion to Count I; accordingly, we do so.

For brevity, also, we shall omit reference to the considerable quantity of extraneous and irrelevant evidence as to family dealings which so greatly enlarged the record in this case. The essential facts are simple.

The evidence showed that the checking account in the Jefferson Bank was opened in January, 1928 in the names of Mrs. T. Connor and/or Mrs. M. Connor Temm, as a change from a prior individual account of Mrs. Connor to a joint account. The 'Depositor's Agreement' then signed reads as follows:

'Depositor's Agreement.

'St. Louis, Mo. Jan. 30 1928

'The undersigned hereby open an account with the Jefferson Bank of St. Louis (subject to the present and future rules of said bank concerning accounts), in the names of Mrs. T. Connor and/or Mrs. M. Connor Temm payable to either or the survivor.

'And the undersigned hereby declare and agree with each other, and said bank, as follows:

'1. That all sums deposited or credited to said account are and shall be the joint moneys or property of the undersigned, payable on the check of either or the survivor, and that the amount to the credit of said account on the death of either is and shall be the sole and absolute property of the survivor and payable on the check of such survivor.

'2. That said bank may pay all checks drawn against said account by either of the undersigned, and presented for payment within five days after written notice to the bank of the death of the drawer, which checks the bank is hereby expressly authorized to so pay after the death of the drawer, and the right of the survivor in, or to check against, funds to this account is subject to the payment of said checks as aforesaid.

'Sign here

'(S) Mrs. T. Connor

'Sign here

'(S) Mrs. Margaret Connor Temm.'

The bank's cashier testified that if parties so desired, its custom and practice would have permitted the opening of an individual account, with right of withdrawal by a second person as agent of the depositor, without survivorship rights.

This checking account was 'active' with charges and credits from time to time, and remained so until Mrs. Connor's death, which occurred on February 9, 1946. On that date the balance on deposit was $2768.70, but subsequently defendant made withdrawals in payment of funeral bills, monument, drugs and safe deposit box rental, whereby the balance was reduced to $1,495.89. No complaint is made by plaintiffs as to these withdrawals, and the amount in controversy on Count I is $1,495.89.

Almost five years after Mrs. Connor's death, the parties herein and their attorneys met on January 2, 1951, in the safe deposit department of Mercantile-Commerce Bank & Trust Company to ascertain if there was a will in the decedent's box. Such a will, executed in 1923, was found, and subsequently letters testamentary under said will were granted to plaintiffs by the Probate Court of St. Louis County. Within a few days after this meeting of January 2, 1951, and before administration on the estate was begun, defendant, on the advice of counsel, withdrew the balance from the checking account in the Jefferson Bank (as she also did with the savings account in the other bank.)

Both plaintiffs testified in substance that while all the parties and counsel were at th safe deposit department of January 2, 1951, a conversation ensued between Mr. Ziercher, plaintiffs' attorney, and the defendant, in the course of which defendant said that the money in the joint bank accounts came from the mother's account, that the purpose of the account was to pay her mother's bills and for tax purposes and that she made no claim as survivor but the account belonged to the estate.

Defendant in her testimony agreed that she had said that the money in the accounts came from her mother's funds and that the account was established for convenience in paying her mother's bills and for tax purposes, which she said meant that her mother wanted no inheritance tax to be payable on the balances in the accounts on her death. She denied that she had said she made no claim as survivor; and her attorney, Mr. Lee, testified, as she did, that no question was asked nor answer given on that issue.

Defendant's principal contention now is that the trial court erred in overruling her motion for a directed verdict at the close of all the evidence and in failing to enter judgment in her favor.

It goes without saying that it is our duty to follow the last and controlling decision of the Supreme Court of this state on any proposition of law. Const. of Mo.1945, Art. 5, Sec. 2, V.A.M.S., Von Der Haar v. City of St. Louis, Mo.App., 226 S.W.2d 376. The performance of our duty in this instance is made easier by the fact that there is no doubt as to what case is the last word by our Supreme Court on the subject-matter involved herein, to-wit: Commerce Trust Co. v. Watts, 1950, 360 Mo. 971, 231 S.W.2d 817.

Although that case was in form an interpleader action, the contest, as here, was between an executor of a decedent and the surviving person in whose name, jointly with the decedent, a bank account had been established. The money in the account had come solely from the deceased as here. The trial court and the Kansas City Court of Appeals, 222 S.W.2d 937, had ruled in favor of the executor; but the Supreme Court, Division No. 1, in an opinion by Judge Conkling reversed these rulings and directed entry of judgment for the survivor-claimant.

Because counsel for plaintiffs seem not to appreciate the significance of this Watts case, we shall give it extensive analysis. Many prior cases involving joint accounts had been adjudicated in Missouri. However, no prior Missouri case, the court stated, had ever treated or considered the question of the application of the parol evidence rule to written contracts covering joint bank accounts.

The statute reads now, as when the Watts case was decided, Section 363.740 RSMo 1949, V.A.M.S., in part:

'When a deposit (in a Trust Company) shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made, by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to either during the life time of both, or to the survivor after the death of one of them.'

A comparable provision as to banks may be found in Section 362.470 RSMo 1949, V.A.M.S.

There was a written agreement between the trust company, defendant Watts, and the deceased, one Crandall. The trial court admitted parol evidence from which it made a finding that the account was opened for the convenience of Crandall so that Mrs. Watts could draw checks on it for the accommodation of Crandall and it was not intended that Mrs. Watts should have any interest in the account. She argued on appeal that parol evidence was not admissible to contradict, vary or change the intention shown by the parties in their written agreement.

The court noted that joint bank account deposit agreements create joint tenancies with rights of survivorship and fixed ownership of the account with attendant rights; and said 231 S.W.2d loc.cit. 820:

'* * * We do not find that this exact question of whether such a writing is a valid contract as between the depositors has been either raised or ruled in Missouri but there is eminent authority that these written joint deposit agreements are contractual in nature and effect and that each of...

To continue reading

Request your trial
20 cases
  • Cooper v. Crabb
    • United States
    • Mississippi Supreme Court
    • September 11, 1991
    ...371, 373 (1916), to the contrary notwithstanding. See Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817 (1950); and Connor v. Temm, 270 S.W.2d 541 (Mo.App.1954). We search for intent, but when we search for intent we accept that the law directs our search and points first and foremos......
  • Melton v. Ensley
    • United States
    • Missouri Court of Appeals
    • October 10, 1967
    ...220 Mo.App. 1165, 297 S.W. 415, 418(2, 3).2 Krummenacher v. Easton-Taylor Trust Co., Mo.App., 306 S.W.2d 593, 599(1, 2); Connor v. Temm, Mo.App., 270 S.W.2d 541, 546(2); Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817, 820(6); Harvey's Estate v. Huffer (Banc), 125 Ind.App. 478, 126......
  • Hardin v. Ray
    • United States
    • Missouri Court of Appeals
    • June 16, 1966
    ...the understanding and intention of the parties.' Commerce Trust Co. v. Watts, 360 Mo. 971, 977--978, 231 S.W.2d 817, 820; Connor v. Temm, Mo.App., 270 S.W.2d 541, 545. The parol evidence rule, 'founded upon the experience of makind in dealing with the 'slippery memory' of mem' (Jackson v. C......
  • Williams v. Kaestner, 30315
    • United States
    • Missouri Court of Appeals
    • February 16, 1960
    ...the weight of the evidence, recognizing the rule that such an assignment of error presents nothing for appellate review, Connor v. Temm, Mo.App., 270 S.W.2d 541; Frye v. Baskin, 241 Mo.App. 319, 231 S.W.2d 630. If the trial court's order is to be affirmed as to granting respondent a new tri......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT