Estate of Campbell, In re

• Citation: 939 S.W.2d 558
• Parties: In re the ESTATE OF Mary F. CAMPBELL, Deceased. BOATMEN'S BANK OF SOUTHERN MISSOURI, Personal Representative of the Estate of Mary F. Campbell, Respondent, v. Trula A. WALKER, Respondent, and Mary Patricia Soukup, Appellant, and Boatmen's Trust Company, Trustee of both the Mary F. Campbell Restated Revocable Trust dated
• Decision Date: 09 November 1990
• Court: Court of Appeal of Missouri (US)

Page 558

939 S.W.2d 558

In re the ESTATE OF Mary F. CAMPBELL, Deceased.

BOATMEN'S BANK OF SOUTHERN MISSOURI, Personal Representative of the Estate of Mary F. Campbell, Respondent, v. Trula A. WALKER, Respondent, and Mary Patricia Soukup, Appellant,

and

Boatmen's Trust Company, Trustee of both the Mary F.

Campbell Restated Revocable Trust dated November

9, 1990 and the Mary F. Campbell

Irrevocable Trust dated

September 28, 1992,

Respondent.

No. 20758.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 28, 1997.

Ben K. Upp, Michael J. Dearmon, Greene & Curtis, L.L.P., Springfield, for appellant.

Devon F. Sherwood, Sherwood, Honecker & Bender, Springfield, for respondent, Trula A. Walker.

GARRISON, Judge.

Mary Patricia Soukup (Appellant), daughter of Mary F. Campbell (Decedent), appeals from a judgment holding that Decedent made a gift of a promissory note to her other daughter, Trula Walker (Trula), before her death and that, as a result, the proceeds of the promissory note belonged to Trula and not to Decedent's estate. We affirm.

FACTS

The promissory note in question, which was payable to Decedent, arose from the sale of a home which the parties refer to simply as "Pickwick" or the "Pickwick property." Trula and her husband, Randall, owned Pickwick for several years before conveying it to Decedent in consideration for Decedent paying their attorney's fees in another matter unrelated to this case. Following the conveyance, Trula and Randall moved out of Pickwick and resided with Decedent.

Decedent executed a beneficiary deed pursuant to which she would remain the owner of Pickwick until her death, at which time Pickwick would become the property of an irrevocable trust established by Decedent for the sole benefit of Trula. Pickwick, however, was sold to Danny Terry (Terry) in November, 1993.

Some time prior to November 24, 1993, Decedent, Trula, and Randall met with Jeannie Gaut, a real estate agent and Randall's niece, at RBX Transportation, Inc., Randall's place of business. At that time, Decedent, Trula and Randall reviewed the documents presented by Gaut in connection with closing the sale of Pickwick, including a deed prepared for Decedent's signature and a copy of the promissory note to be signed by Terry. According to testimony at trial, after Decedent signed the deed, she handed all of the documents to Trula, saying, "Here, these are yours." Terry, however, had not yet signed his portion of the documents, including the promissory note, and Gaut took them in order to obtain his signature.

After Terry signed the papers, he sent them to a post office box, paid for by Decedent, but which bore the names of both Decedent and Trula. Trula testified that when Decedent opened the envelope containing Terry's $185,500 promissory note, she handed it to Trula, saying again, "Here, this is yours." The next day, Trula said she showed the note to Randall, saying that Decedent had given it to her. Randall then took the note to his office at RBX where he kept a file on the Pickwick property.

In January, 1994 Terry mailed his first monthly payment on the promissory note Decedent died on February 2, 1994. Terry continued making the regularly scheduled note payments in February, March, April, and May, as well as a $5,000 principal payment in May, all of which totaled $9,936. All of these payments were payable to Decedent and were mailed to the same post office box. Each payment was deposited by Trula and/or Randall in the joint account.

payable to Decedent, to the same post office box where he had mailed the note. The payment was deposited in an account titled to Decedent and Trula as joint tenants with rights of survivorship (the joint account). There was no dispute about ownership of the January payment because it was deposited in the joint account prior to Decedent's death. See In re Kaimann's Estate, 360 Mo. 544, 229 S.W.2d 527, 529 (1950); see also Melton v. Ensley, 421 S.W.2d 44, 55 (Mo.App. S.D.1967). The payments made by Terry after Decedent's death, as well as the ownership of the promissory note itself, are in dispute here.

Terry exercised his right under the note to prepay it in May, 1994. To facilitate that payment, Randall delivered the note to Boatmen's Bank. ¹ On May 25, 1994, Terry prepaid the entire balance of the note, delivering the payment to Boatmen's, which retained those funds as Decedent's personal representative pending a determination of the ownership of the note and its proceeds. The Bank eventually determined that it could not resolve the issue itself, and on September 1, 1994, Boatmen's filed a petition to discover assets. The issue confronting the trial court was whether or not Decedent made an effective gift of the unendorsed promissory note to Trula prior to her death.

We note here that two trusts were established by Decedent, one for Appellant and one for Trula. Each trust is the residuary beneficiary of one-half of Decedent's estate. Therefore, if Decedent made a gift to Trula of the promissory note prior to her death, then Trula would own all the proceeds of the note. If, however, an effective gift was not made, half of the proceeds would go to the trust benefitting Trula and half would go to the trust benefitting Appellant. ²

The trial was held on October 31 and November 1, 1995. On December 14, 1995, the trial court entered its judgment finding "that the promissory note ... was effectively transferred by Mary F. Campbell to Respondent Trula A. Walker during her lifetime and was given to Trula A. Walker as a gift." As a result, the proceeds of the promissory note, including the payments totaling $9,936 retained by Trula and Randall, were determined to be Trula's property and not an asset of Decedent's estate.

In her sole point relied on, Appellant contends that the trial court erred in holding that the promissory note was effectively transferred by Decedent to Trula as a gift and that all proceeds of the note are Trula's property. According to Appellant, the trial court's judgment was not supported by the evidence, was against the weight of the evidence, and was an erroneous application of the law in that the evidence failed to establish the necessary elements of a gift.

Since this was a court-tried case, our review is governed by Rule 73.01. The trial court's judgment must be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or Neither party requested findings of fact or conclusions of law. "Such findings and conclusions are not required of the trial court unless requested and in cases where they are not requested, all fact issues are to be considered found in accordance with the result reached by the trial court." McLain v. Johnson, 885 S.W.2d 345, 347 (Mo.App. W.D.1994).

judgment is wrong." Id. We give due regard to the trial court's determination of the credibility of witnesses. Rule 73.01(c)(2).

The essentials of an inter vivos gift of personal property are as follows: "a present intention to make a gift on the part of the donor, a delivery of the property by the donor to the donee, and an acceptance by the donee, whose ownership takes effect immediately and absolutely." Wantuck v. United Savings & Loan Ass'n, 461 S.W.2d 692, 694 (Mo. banc 1971); see also In re Estate of Hoffman, 490 S.W.2d 98, 103 (Mo.1973). "Generally, a person claiming a gift has the burden of proving the gift by clear and convincing evidence." Kennedy v. Milligan, 915 S.W.2d 784, 789 (Mo.App. W.D.1996). "Where the gift is not asserted until after the alleged donor's death, it is viewed with suspicion and it has been held the proof should leave no room for reasonable doubt." Robertson v. Estate of Zimmerman, 778 S.W.2d 805, 808 (Mo.App. E.D.1989).

A. INTENT

According to Appellant, "the evidence failed to establish [Decedent's] present intent to make a gift of the promissory note to Trula A. Walker." In connection with this issue, we note that "[c]onduct is an enlightening ingredient in discerning intent." In re Estate of Hoffman, 490 S.W.2d at 103.

There was evidence indicating that Decedent intended for Trula to have Pickwick at her death. For instance, in July, 1992, Decedent signed a document acknowledging her intent that Trula was to receive that property, among others, when she died. Decedent also executed the beneficiary deed which provided that the property would belong to Trula upon her death. These examples in themselves, however, do not indicate that Decedent intended to make a gift of the note or its proceeds prior to her death. We note that "[l]anguage written or spoken, expressing an intention to give, does not constitute a gift, unless the intention is executed by a complete and unconditional delivery of the subject matter, or delivery of a proper written instrument evidencing the gift." In re Estate of Piper, 676 S.W.2d 897, 899 (Mo.App. S.D.1984).

There was evidence, however, of a present intent by Decedent to give the note and its proceeds to Trula. Trula, Randall and Jeannie Gaut all testified that when Decedent signed the deed conveying Pickwick to Terry, she handed the copy of the note to Trula, saying that it was hers. According to Trula, Decedent did and said the same thing again when the signed note was received. Gaut also testified that Decedent asked Trula where she wanted the note payments to be sent, and that Trula directed that they be mailed to the post office box which contained both of their names.

Louise House, a friend of Decedent since 1934, also testified about a conversation she had with Decedent concerning Pickwick and the note. She testified:

Q: So after that time she--did [...