Estate of Hopkins v. Estate of Hopkins, No. 18565

• Decision Date: 27 September 1993
• Docket Number: No. 18565
• Citation: 862 S.W.2d 470
• Parties: In re ESTATE OF Alma M. HOPKINS, deceased, Petitioner-Respondent, v. ESTATE OF Alvester J. HOPKINS, deceased, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 470

862 S.W.2d 470

In re ESTATE OF Alma M. HOPKINS, deceased, Petitioner-Respondent, v. ESTATE OF Alvester J. HOPKINS, deceased, Respondent-Appellant.

No. 18565.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 27, 1993.

Joseph P. Rice, III, Richey, Rice, Spaeth, Heisserer and Summers, Cape Girardeau, for respondent-appellant.

Mary Eftink Boner, Buerkle, Beeson & Ludwig, Jackson, and Gary A. Kamp, Marble Hill, for petitioner-respondent.

FLANIGAN, Judge.

This is a proceeding for discovery of assets, § 473.340, ¹ instituted by a verified petition filed in the Probate Division of the Circuit Court of Bollinger County, in the Estate of Alma M. Hopkins, deceased. Petitioner is the administratrix de bonis non of that estate.

Named as respondent in the petition was the Estate of Alvester J. Hopkins, deceased. Alvester J. Hopkins and Alma M. Hopkins were husband and wife. Alvester J. Hopkins died May 11, 1990. Alma M. Hopkins died May 29, 1990.

At issue in the proceeding was entitlement to two certificates of deposit. The trial court, after an evidentiary hearing, awarded both certificates, or the monies then represented by them, to petitioner. The Estate of Alvester J. Hopkins, through its personal representatives, appeals.

On this appeal, the Estate of Alvester Hopkins contends that the trial court erred in receiving into evidence petitioner's Exhibits 2, 3, and 4, which were introduced through the testimony of Rhonda Wallis, an employee of Capital Bank. Capital Bank was the successor of First Federal Savings & Loan Association, which had issued the two certificates. Alvester's estate further contends that the evidence was insufficient to support the judgment in that (a) "any existing joint tenancies had been severed by the acts of Verdetta Hahs," and the severance was a power granted her under Alvester's Durable Power of Attorney; and (b) there was no showing that the two certificates "were jointly titled at the time of Alvester J. Hopkins' death." The final contention of Alvester's estate is that the trial court erred in refusing to admit its Exhibit A and Exhibit B.

The trial court's findings of fact included the matters set forth in the following four paragraphs:

1. Alvester Hopkins married twice. His first wife was Alma Schrock Hopkins, who died January 7, 1977. Alvester's second wife was Alma M. Hopkins, whom he married on December 19, 1979. Alma M. Hopkins outlived Alvester by 18 days.

2. CD No. 371182, "the first certificate," was purchased on December 31, 1980, from First Federal Savings & Loan Association and "was titled in the name of Alvester Hopkins and Alma Hopkins"; CD 416532, "the second certificate," was purchased on November 10, 1981, from First Federal Savings & Loan Association and "was titled in the name of Alvester Hopkins or Alma M. Hopkins"; both certificates "were titled as joint tenants with right of survivorship"; both certificates were purchased and titled after the death of Alma Schrock Hopkins and after the marriage of Alvester Hopkins to Alma M. Hopkins; First Federal Savings & Loan Association, which is no longer in existence, was purchased in part by Capital Bank of Cape Girardeau County on May 18, 1990.

3. In early May 1990, prior to the death of Alvester Hopkins, Verdetta Hahs, "under authority of a durable power of attorney granted to her by Alvester Hopkins," transferred the first certificate "to Alvester Hopkins and Jeanna M. Liley;" in early May 1990, prior to the death of Alvester Hopkins, Verdetta Hahs transferred the second certificate to a checking account in the name of Alvester Hopkins and Verdetta Hahs.

4. On September 16, 1991, in Case No. CV190-42CC, the Circuit Court of Bollinger County set aside the above transfers and "as result of that order the ownership interest in said certificates reverted back to the form in which the certificates were titled prior to said transfers"; on November 25, 1991, Verdetta Hahs transferred the first certificate, plus accrued interest, to the Estate of Alvester Hopkins; also on November 25, 1991, Verdetta Hahs paid the proceeds from the second certificate to the Estate of Alvester Hopkins.

In its conclusions of law, the trial court made the following findings with respect to the first certificate:

The certificate was purchased at First Federal Savings & Loan Association in the name of Alvester Hopkins and Alma Hopkins and was held as joint tenants with right of survivorship in Alvester and Alma M. Hopkins; "since Alvester Hopkins predeceased Alma M. Hopkins, all interest in said certificate is the sole, separate, and absolute property of the Estate of Alma M. Hopkins, free of any claim of the Estate of Alvester J. Hopkins."

With respect to the second certificate, the trial court made the same findings, except that the certificate was purchased "in the name of Alvester Hopkins and Alma M. Hopkins."

The court ordered the personal representatives of the Estate of Alvester Hopkins to turn over the first certificate, and accrued interest, and the proceeds of the second certificate, to the administratrix of the Estate of Alma M. Hopkins.

The petition alleged, and the answer of Alvester's estate admitted, that in Case No. CV190-42CC, in which the Estate of Alvester was plaintiff and Verdetta Hahs was a defendant, an order was entered on September 16, 1991, requiring Verdetta Hahs to pay over to the Estate of Alvester Hopkins the proceeds of the first certificate, held at Capital Bank, and the second certificate, held at First Federal Savings & Loan Association.

The fourth paragraph of the petition alleged: "4. The order [of September 16, 1991, in Case CV190-42CC] stated that Verdetta Hahs had exceeded her authority under the Durable Power of Attorney under which she was operating when she transferred [the first certificate] from the name of Alvester Hopkins and Alma Hopkins, as joint tenants with rights of survivorship, to the name of Alvester Hopkins and Jeanna M. Liley as joint tenants with rights of survivorship; the court found that Verdetta Hahs had also exceeded her authority under the Durable Power of Attorney under which she operated in changing [the second certificate] held in the name of Alvester Hopkins and Alma M. Hopkins into a checking account in the names of Alvester Hopkins and Verdetta Hahs, as joint tenants with rights of survivorship."

The answer of the Estate of Alvester Hopkins admitted the allegations of paragraph 4 of the petition, "with the exception of the statement that [the second certificate] was held in the name of Alvester Hopkins and Alma M. Hopkins. Respondent denies that there was any middle initial on [the second certificate]." This portion of the answer, and the allegations to which it was responsive, were offered by petitioner and received in evidence.

The answer also included the following statement: "It is the belief of the respondent that the joint accounts referred to in the petition for discovery of assets were jointly held by Alvester Hopkins and his first wife, and that as a result of her death those funds passed to his estate by virtue of joint tenancy."

At the nonjury trial, petitioner presented two witnesses, Verdetta Hahs and Rhonda Wallis. The testimony of Verdetta Hahs, which contained some of the matters previously set forth, included the following: The first certificate and the second certificate were in my physical possession when I transferred them in May 1990; that transfer was made the first week in May and before Alvester's death; I no longer have them; I relinquished possession of them to First Federal Bank (sic); the names which appeared on the first certificate were Alvester Hopkins and Alma Hopkins; the names which appeared on the second certificate were Alvester Hopkins and Alma M. Hopkins; pursuant to the order of September 16, 1991, in Case CV190-42CC, I paid the proceeds of both certificates over to the Estate of Alvester Hopkins.

Rhonda Wallis testified: I am vice president and assistant cashier at Capital Bank in Cape Girardeau; I was subpoenaed to bring documentation concerning the first certificate and the second certificate; I have brought that documentation; both certificates originated at First Federal Savings & Loan Association; Capital Bank purchased First Federal Savings & Loan Association on May 18, 1990; Resolution Trust Corporation was in control up until that time; when Capital Bank purchased First Federal, it also purchased their documentation and their computer information; I have no reason to believe that their computer information would have been inaccurate, "everything balanced"; with regard to the certificates, we found some histories of accounts, copies of statements, and some signature cards; I did not find the actual certificates.

Rhonda Wallis further testified: From the records I have found, I located information concerning the two certificates; my documentation is from the files of Capital Bank; the top portion of Exhibit 2 pertains to the second certificate, and the bottom portion of Exhibit 2 pertains to the first certificate; this information came from Financial Institution Trust Corporation which did computer work for First Federal Savings & Loan Association; Exhibit 2 contains a handwritten notation, by an employee of Capital Bank, that the first certificate had a name change on May 7, 1990, "from Alvester & Alma"; Exhibit 2 shows that the origination date of the first certificate was December 31, 1980; Exhibit 3 is a portion of a teller transaction journal created in the regular course of business; Exhibit 4 was generated in the same manner as Exhibit 3; Exhibit 3 contains information concerning the second certificate; I also have documentation showing that the origination date for the second certificate was November 25, 1981; on Exhibit C, the signature card, there is nothing to indicate it was signed at the time of the purchase of the first certificate; it is possible there was no signature...