Estate of Huskey v. Monroe
| Citation | 674 S.W.2d 205 |
| Decision Date | 14 June 1984 |
| Docket Number | 13172 and 13178,Nos. 13124,s. 13124 |
| Parties | In re ESTATE OF Emma Edith HUSKEY, deceased, Eugene Wilson, Administrator, et al., Plaintiffs-Respondents, v. Bonnie O. MONROE, Robert G. Huskey and Citizens Bank of Newburg, Defendants-Appellants, and Centerre Bank of Rolla, Defendant. |
| Court | Court of Appeal of Missouri (US) |
Harvey J. Schramm, Clayton, for defendant-appellant Bonnie O. Monroe.
Virginia I. Nye, Rolla, for defendant-appellant Robert G. Huskey.
William C. Morgan, Waynesville, for defendant-appellant Citizens Bank of Newburg.
Dan L. Birdsong, Routh, Thomas & Birdsong, Rolla, for plaintiffs-respondents.
This is a proceeding to discover assets brought under the provisions of § 473.340, RSMo 1978, 1 by the administrator and collateral kindred of Emma Edith Huskey, who died intestate in Phelps County on December 12, 1981, at age 66. Primarily at issue was the interest vel non of defendants Bonnie O. Monroe and Robert G. Huskey in four "money market" certificates in the total amount of $52,000 and two passbook savings accounts in the total amount of $14,852.83. Various collateral issues were tried and resolved but upon the main issue, the trial court found for the plaintiffs and against the defendants. In this court, the principal issue tendered is whether title to the certificates vested in defendants Monroe and Huskey upon the intestate's death as proceeds of a joint deposit within the meaning of § 362.470.
The slender record tells us very little about Mrs. Huskey or her husband. We are able to glean from the record and the documents filed here that the intestate was married to George S. Huskey in 1936; that George S. Huskey died September 25, 1981, and that they lived on a 25-acre tract of land near Newburg. Defendant Robert Huskey is George Huskey's son; he was reared by his father and stepmother, the decedent. Defendant Monroe is Mrs. Huskey's niece.
We take the appeals as submitted and consider those matters which counsel consider to be important. So taken and considered, the record shows that the first certificate with which we are concerned was issued by the Citizens Bank on September 8, 1981, in the amount of $18,000. The certificate is made payable to "George or Edith or Robert G. Huskey." The second certificate was issued by the same bank on September 14, 1981, in the amount of $10,000. This certificate was made payable to "George S. or Emma E. or Robert G. Huskey."
The third and fourth certificates were issued by the same bank. Both were dated August 6, 1981. Both were issued in the amount of $12,000; both were made payable to "George S. or Emma E. Huskey or Bonnie O. Monroe." It stands conceded that either the intestate or George S. Huskey, or both, furnished all the money with which all four certificates were purchased; the intestate affixed her signature to indicate receipt of the instruments, and George S. Huskey was alive at the time the certificates were purchased. All four certificates were placed in a safety deposit box at the Citizens Bank.
Shortly after Mrs. Huskey's death, defendant Robert Huskey removed the certificates from the deposit box. He obtained cash in the amount of $28,000. He delivered the other two certificates to defendant Monroe, who realized the proceeds of the certificates delivered to her in the amount of $24,000.
One of the two savings accounts in controversy was held by the Citizens Bank. There was $8,542.60 in this account. Defendant Monroe withdrew the proceeds of this account, which we shall discuss further. The other savings account was held by the Centerre Bank of Rolla; there was a balance of $6,310.23 in this account when Mrs. Huskey died. The Centerre account was in the form contemplated by § 362.470 and the trial court found the proceeds of this account were not assets of the estate. The trial court was correct and we need not consider the Centerre savings account further.
The trial court made findings of fact and conclusions of law, amended those findings within 30 days and concluded: 1) that the decedent was the owner of all four of the certificates issued by the Citizens Bank; 2) that the intestate was the owner of the passbook savings account held by the Citizens Bank; 3) that the Citizens Bank had unlawfully paid the funds represented by the four certificates to Huskey and Monroe; and 4) that the Bank of Newburg had wrongfully paid the savings account held in the names of the intestate, her husband and defendant Monroe to defendant Monroe.
The court therefore ordered: 1) that the estate have and recover the sum of $30,742.93 from defendant Robert Huskey, such sum representing the principal and accrued interest realized from surrender of the certificates and Huskey's withholding of those proceeds from the estate; and 2) that the estate have and recover the sum of $37,766.94 from defendant Bonnie O. Monroe, that sum being the amount realized by her as proceeds of two certificates issued by the Citizens Bank and the savings account held by that bank. The court also entered judgment against the Citizens Bank for the entire amount it had paid to defendants Huskey and Monroe plus accrued interest, the amount of that judgment to be reduced pro tanto by the amount recovered from defendants Monroe and Huskey. By conditional assignment, cash tender and supersedeas bond, the alternative judgments rendered have been stayed pending the decision of this court.
The Citizens Bank of Newburg's appeal has been styled Appeal No. 13178. The bank appealed promptly, but thereafter filed no brief. Its appeal was dismissed but was later reinstated. After reinstatement the bank asked to "adopt the briefs" of the other two appellants and this court allowed it to do so. Nevertheless, we find on full examination of the record that no alleged error in finding against the defendant Citizens Bank of Newburg has been briefed or presented and accordingly, the appeal of the defendant bank must be considered as having been abandoned. See: White v. Robertson-Drago Funeral Home, Inc., 552 S.W.2d 47, 49 (Mo.App.1977); Charles Palermo Co., Inc. v. Wyant, 530 S.W.2d 15, 17 (Mo.App.1975).
Defendants Huskey and Monroe appealed separately; the appeals were consolidated for purposes of argument, but those assignments of error which are duplicative will be considered together. We bear in mind two basic principles which govern the scope of our review. In this bench-tried case, we review under the provisions of Rule 73.01(c), as construed in Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976), and the appellants have the burden to demonstrate the judgments are erroneous. Estate of Linck, 645 S.W.2d 70, 74[1, 2] (Mo.App.1982). Further and fundamental is the rule that contentions not put before the trial court will not be considered here; an appellate court will not convict a trial court of error on an issue which was not put before it to decide. Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982); School District of Kansas City v. Smith, 342 Mo. 21, 25, 111 S.W.2d 167, 168 (1937).
The principal point before the court is whether the proceeds of the certificates became the property of the defendants by operation of law upon the intestate's death. This contention is tendered by defendant Huskey's third and defendant Monroe's first assignment of error. Essentially, the defendants argue that the certificates comply with the requirements of § 362.470. Resolution of this question requires a partial construction of § 362.470.1.
(Provisions of the certificates)
To put this contention in perspective, we must first consider the provisions of the four certificates. Each certificate bears the legend "money market certificate." One of the two certificates claimed by defendant Huskey recites that the "depositor" is "George S. or Emma E. or Robert G. Huskey." The other states the "depositor" is "George or Edith or Robert G. Huskey." The two certificates claimed by defendant Monroe recite that the "depositor" is "George S. or Emma E. Huskey or Bonnie O. Monroe." All four certificates recite: "The amount shown above has been deposited, and is payable to the depositor upon presentation and surrender ... properly endorsed, at maturity." The certificates are neither transferable nor negotiable. They are not therefore instruments within the intent and meaning of § 400.3-116; that section speaks only to negotiable instruments. Neither are they ordinary certificates of deposit; they are simply time certificates which represent a time deposit. We reiterate and emphasize that neither defendant furnished any of the money which went to purchase the certificates and that George Huskey was alive at the time the certificates were purchased.
(Defendants' contention)
The defendants insist upon what they call a "literal reading" of the first sentence of § 362.470.1. They cite no authority except one or two backward glances given the statute by other districts of the court of appeals. The language upon which our attention is focussed is as follows:
"When a deposit is made by any person in the name of the depositor and any one or more other persons, whether minor or adult, as joint tenants or in form to be paid to any one or more of them, or the survivor or survivors of them ... the deposit thereupon ... shall become the property of these persons as joint tenants...." (Our emphasis.)
The defendants argue that this language, which first appeared Laws of Mo.1977, p. 554, provides three alternative methods of creating a statutory joint tenancy. More specifically, they say that if a deposit is made: a) as joint tenants, or b) in form to be paid to any one or more of the depositors, or c) is made payable to the survivor or survivors of the depositors, then the requirements of the statute are met. So, simply because three persons...
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