First Nat. Bank of Liberty v. Waller

• Decision Date: 07 April 1969
• Docket Number: No. 25120,25120
• Citation: 442 S.W.2d 171
• Parties: FIRST NATIONAL BANK OF LIBERTY, Missouri, Plaintiff, v. Virginia W. WALLER, Defendant-Respondent, Laura Henson, Executrix of the Estate of James Edgar Williams, Deceased, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 171

442 S.W.2d 171

FIRST NATIONAL BANK OF LIBERTY, Missouri, Plaintiff, v. Virginia W. WALLER, Defendant-Respondent Laura Henson, Executrix of the Estate of James Edgar Williams, Deceased, Defendant-Appellant.

No. 25120.

Kansas City Court of Appeals, Missouri.

April 7, 1969.

Motion for Rehearing and/or Transfer to the Supreme Court

Denied June 2, 1969.

Arthur R. Kincaid, William B. Waters, Hale, Coleberd, Kincaid & Waters, Liberty, for appellant.

Robert F. Sevier, Liberty, for respondent.

JAMES W. BROADDUS, Special Commissioner.

This is an appeal by Laura Henson, executrix of the estate of James Edgar Williams, deceased, from a judgment in favor of Virginia W. Waller for the sum of $6,980.25.

On July 26, 1967, plaintiff First National Bank of Liberty, Missouri, filed its bill of interpleader in the Probate Court of Clay County, alleging that it was a banking corporation; that Virginia W. Waller was the sister of James Edgar Williams, deceased; that George C. Henson and Laura Henson were the executors of the estate of James Edgar Williams, deceased, pending in said court; that on March 30, 1967, James Edgar Williams was the sole owner of a checking account and that he directed plaintiff to prepare a signature card for himself and sister,Virginia W. Waller, which would authorize the said Virginia W. Waller to write checks upon the account; that the said Virginia W. Waller did, thereafter, write checks on said account until the death of said James Edgar Williams on June 17, 1967, and that at the time of his death, the balance in said account was $6,980.25; that both Virginia W. Waller and said executors, by attorneys, had notified plaintiff that their respective clients claimed the entire amount remaining in said account; that plaintiff was without knowledge of proper ownership and after offering to pay the disputed amount into the registry of the court, requested that the court require said defendants to cross-plead.

Thereafter the executors and Virginia W. Waller filed respective interpleas claiming the fund.

The case was tried in the Probate Court and thereafter an appeal was taken to the Circuit Court. In the latter court counsel for the claimants entered into a stipulation in which it was agreed that the disputed funds were originally in the name of James Edgar Williams only and that the sole issue was whether Virginia W. Waller or Laura Henson, surviving executor, was entitled to the funds. It was further agreed that the court would make the judgment based upon the transcript of the proceedings from the Probate Court, including the testimony and exhibits offered and that all objections made whether sustained or refused would be considered.

The essential facts are: Respondent's first witness was William B. Pence, President of the First National Bank of Liberty. He identified Exhibit I, which bore the signature of James Edgar Williams and Virginia W. Waller. He stated that the Bank kept two cards for its record keeping purposes, but that they were identical. Exhibit I reads as follows:

'The undersigned hereby agree with each other, and with the First National Bank of Liberty, Missouri, that all sums heretofore or hereafter deposited by them, or either of them, with said bank to their credit as joint depositors, shall be owned by them jointly with right of survivorship, and be subject to the check or order or receipt of either of them, or the survivor of them * * *. At the death of either of the undersigned, the survivor shall take absolute and single ownership of the balance then due the account. Each of us authorize the other to endorse, cash or deposit to the credit of said account, any check or other instrument for the payment of money which may be drawn or endorsed to our joint order or to the order of either of us individually. * * * This agreement shall not be changed or terminated except by written notice to said bank signed by both of the undersigned. * * *.' (Emphasis ours)

Typed at the top of the exhibit are the words 'J. E. Williams and Virginia W. Waller auth to sign,' and 'Individual checking account' across its face, and 'Individual checking account' across one end, and 'Auth to sign' underneath the signature of Virginia W. Waller. Mr. Pence testified that those typewritten words were placed on the exhibit by the bank without written authority from either James E. Williams or Virginia W. Waller.

On cross-examination the witness was asked regarding a telephone conversation with deceased. Counsel for defendant Waller objected to the question on the ground it was an attempt to vary the terms of a written instrument and that it was in violation of the dead man's statute. The objection was taken with the case. Mr. Pence stated that he had known Mr. Williams for many years, recognized his voice and that he was called by him prior to the March 30, 1967, date and told that he wanted Mrs. Waller to have authority to sign on his account and that he would send her to the bank for a signature card. Mr. Pence stated that he probably told deceased that Mrs. Waters, an employee of the bank, handled signature cards. He testified that several days thereafter the cards came in the mail; that he examined them and that both deceased and Mrs. Waller had signed; that he immediately recognized that the cards were for a joint account, and he took them to Mrs. Waters and told her that she should call Mr. Williams to be certain if he wanted to change the relationship on the account. Mrs. Waters thereafter reported to him that Mr. Williams wanted an authorized signature, and he instructed her as to the typing which should be added.

The executors offered the testimony of Joyce Waters, an employee of the First National Bank for five years and whose duties were opening new accounts, as well as changing accounts. She stated that respondent Mrs. Waller, came to her desk several days before March 30, 1967, identified herself as the sister of Edgar Williams and stated that her brother had called Mr. Pence and talked to him about putting her name on the account and that she wanted signature cards. Mrs. Waters said she had not heard of the matter previously and that she gave her two yellow cards; that she next heard about the matter on March 30, when Mr. Pence brought her the cards with the signatures on them. Mr. Pence told her that he did not understand Mr. Williams to say that he wanted a joint account and he requested her to call him and find out if it was to be a joint or authorized to sign; that she called Mr. Williams' residence and a lady answered. She told her that the bank had received the cards and she wanted to find out if it was to be a joint account or authorized to sign and she was informed that she would have to talk to her brother about it. Thereafter a man's voice came on the phone. There was objection to testimony regarding this conversation on the ground it was an attempt to vary the terms of a written instrument, which objection was taken with the case. Mrs. Waters said that when she asked the man if it was to be a joint account or authorized to sign he immediately said authorized to sign and that there was no further conversation.

Respondent offered the testimony of one Harold Wymore by deposition. The witness testified that he was 68 years of age and had known James Edgar Williams all of his life; that he had gone to school with respondent, frequently visited in the home while she was there, and that he saw her cooking and cleaning; that on his frequent visits he talked with deceased regarding the sale of his farm and his cattle feeding operation; that on one occasion deceased told...