Flynn v. Union Nat. Bank of Springfield, 8220

• Decision Date: 14 April 1964
• Docket Number: No. 8220,8220
• Citation: 378 S.W.2d 1
• Parties: Clara FLYNN, Administratrix of the Estate of Anna M. Yorger, Deceased, Plaintiff-Respondent, v. UNION NATIONAL BANK OF SPRINGFIELD, Missouri, Defendant-Respondent, and Emma McReynolds, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 1

378 S.W.2d 1

Clara FLYNN, Administratrix of the Estate of Anna M. Yorger, Deceased, Plaintiff-Respondent, v. UNION NATIONAL BANK OF SPRINGFIELD, Missouri,

Defendant-Respondent, and Emma McReynolds,

Defendant-Appellant.

No. 8220.

Springfield Court of Appeals, Missouri.

April 14, 1964.

Motion for Rehearing or to Transfer Overruled May 4, 1964.

Bussell & Hough, Leland C. Bussell, Kelly & Church, W. Clark Kelly, Springfield, for defendant appellant.

Allen, Woolsey & Fisher, Russell G. Clark, Springfield, Ninian M. Edwards, Clayton, for plaintiff respondent.

PER CURIAM.

This is an appeal from a judgment declaring that title to a savings account is vested in Clara Flynn, Administratrix of the Estate of Anna M. Yorger, deceased.

We have rendered an opinion in this case, Stone J., not sitting. Motion for rehearing was sustained and Honorable James C. McDowell, former judge of this court and now commissioner, sat with the court for reargument in place of Judge Stone. After hearing such argument and careful consideration we have come to the conclusion that the opinion was correct. Our opinion is as follows:

The original petition charged that Mrs. Yorger had nine thousand dollars in a savings account in her own name at the Union National Bank of Springfield; that on January 18, 1960, she transferred such account to a joint savings account in her name and the name of defendant (now appellant), Emma McReynolds; that at the time of such transfer Anna Yorger was incompetent and was not aware of the consequences of the change in the account. In an amended petition, filed by leave of court after most of the evidence was in, plaintiff also charged that there was a relationship of trust and confidence between Mrs. Yorger and defendant, Emma McReynolds, and also a confidential relationship between Mrs. Yorger and one Evans McReynolds (son of Emma McReynolds); and that the McReynoldses, mother and son, exercised undue influence over Mrs. Yorger in order to procure the transfer of such account.

The principal characters and some of the witnesses in this transaction are:

Anna M. Yorger, elderly wife of Gustave Yorger. This couple had lived at the same address in Springfield since the latter part of 1942 or early 1943. They were childless. We gather from the whole evidence that Mrs. Yorger was rather a dependent, nervous sort of person, tending toward being a hypochondriac, and that she relied upon her husband to make purchases and to control the financial affairs concerning the household.

Plaintiff's witness, Dr. Fitch, who was engaged in the general practice of medicine, had been Mrs. Yorger's physician off and on (with two years out) since 1951. He said he had treated Mrs. Yorger for symptoms of insomnia, restlessness, various aches and pains, and that she demanded new and different sedatives for sleep. For years, 'Well, this poor old fellow, her husband, she had many imaginary ideas about his infidelity, and his mistreatment of her, and, actually, he was a very kind old person.' How the doctor acquired possession of the knowledge that her ideas concerning her husband's infidelity were 'imaginary' we do not know.

Next-door neighbor for twenty odd years was defendant, Emma McReynolds. Mrs. Yorger and Mrs. McReynolds had been 'bosom friends' for a long time.

Evans McReynolds is the son of Emma McReynolds and was a friend of the Yorgers. He was a vice-president of the Union National Bank and was in charge of public relations, loans, investments, and advertising.

Clara Flynn, also elderly, was half-sister and nearest kin of Anna Yorger. Mrs. Flynn lived in St. Louis and, according to her testimony, had visited Anna Yorger every year.

Gus Wesley Flynn, son of Clara Flynn, lived in St. Clair. In former years he had visited Mrs. Yorger practically every year; but prior to the death of Gustave Yorger (he attended the funeral) he had not visited with her for two and one-half years. He had four children by his second marriage. Mrs. Yorger had never seen the three youngest.

On September 5, 1959, Gustave Yorger, Anna's husband, committed suicide by shooting himself. Clara, the half-sister, came down for the funeral and stayed with Anna for approximately three or four weeks. Some friction developed between the two half-sisters, and Clara went back to St. Louis. Produced in evidence was an envelope and an enclosed paper writing, in ink, written by obviously shaky fingers. The envelope was entitled: 'My Will Mrs Anna Yorger.' The same writing on the paper inside the envelope was:

'Sunday November 8/1959

'if any thing should happen to me suddenly dont dont let my half sister Clara Flyn take possession of my property give it to the probate court and Mrs Emma McRenold She has been very kind to me and all so my Church Cambell Av Methodis Church I am very nerves I can scarcely writ my hand trembles

'Mrs Anna Yorger'

At sometime after the death of her husband, Mrs. Yorger engaged a realtor and sold her home. So far as the record shows, she handled this transaction herself. Evans McReynolds testified that she asked him to stop by her home and that she delivered the proceeds of the sale to him for deposit in the Union National Bank. He deposited it in her checking account.

About November 12, 1959, Emma McReynolds went to the office of Mercy Villa, an establishment devoted to the care of elderly people, and made inquiry concerning possible admittance of Mrs. Yorger. The next day, Mrs. Yorger, accompanied by Mrs. McReynolds, went to Mercy Villa and inspected a room which Mrs. Yorger would have. The following day, November 14, 1959, Mrs. Yorger, accompanied by Mrs. McReynolds, registered in at Mercy Villa. Mrs. Yorger herself furnished the information necessary for admission. Inquiry was made of her concerning her relatives. She informed the Sister in charge that she had a half-sister but she did not want the name of the half-sister placed on the admission sheet. Listed on the admission sheet record following name, address, and doctor, was 'Age 79--May 13th' (we do not know whether 'Age' was calculated at the nearest birthday); 'Religion Methodist'; 'Responsible Self. (Neighbor: Mrs. S. L. Uhr. Phone UN 6-5146 Mrs. McReynolds, Phone UN 4-4267' She was placed in the domiciliary or residence section, which is that portion where patients 'pretty well take care of their own needs' and are free to come and go. Sometime in November, about the 26th, Dr. Fitch saw Mrs. Yorger at Mercy Villa. His report of physical examination was: head, ears, nose, throat, mouth, and lungs, 'clear'; vision, 'poor, cataracts'; heart and blood vessels, 'Heart tones are clear and regular. Arteries are sclerotic'; mentality, 'nervous, emotional, orientated'; tentative diagnosis, 'arteriosclerosis, neuro dermatitis.'

From November 14, 1959, until the early part of January 1960, Mrs. Yorger visited in the office of Mercy Villa every day. She frequently made trips outside the Villa. During this period she went to the office of Dr. Fitch on three different occasions. She made several trips to the Union National Bank. These trips were made by cab. On November 23, 1959, she deposited nine thousand dollars in a savings account at Union National. Presumably this comprised the principal proceeds which had been derived from the sale of her home.

On or near January 9, 1960, Mrs. Yorger was transferred to the infirmary hospital section on the third floor of Mercy Villa. Sister Mary Phillipine, the administrator, testified, 'I had thought for some time that she should be in the hospital section. And we suspected at the time she was taking more medicine than necessary, and we called Dr. Fitch, and between the two us, we agreed to transfer her to the hospital section.'

On or about January 17, or 18, 1960, the transfer of the savings account was made. This is the transaction here in question. The transfer was accomplished by the execution of a joint account depositors' contract card wherein 'the undersigned, joint depositors,' agreed that the account would be owned jointly and with right of survivorship. It was signed by Anna M. Yorger and Mrs. Emma McReynolds. Further reference will be made to this card.

In the latter part of January 1960, Mrs. Yorger's nephew, Gus Flynn, came to the infirmary to see her. On January 28, 1960, Betty Jane Flynn (wife of Gus Flynn) filed petition in probate court for appointment of guardian of the person and estate of Anna Yorger, age seventy-nine. Hearing was set for February 3, 1960, and notice was served on Mrs. Yorger on January 29. On February 10, Evans McReynolds was appointed guardian. Mrs. Yorger died September 5, 1960, exactly one year from the day her husband killed himself.

Turning to the negotiations concerning a will: On December 15, 1959, Mrs. Yorger phoned Mr. Powell, an attorney in Springfield, and requested that he come to Mercy Villa to talk about a will. He went there, but he does not recall how many days thereafter. He met her in a private visitors' room on the first floor, and they talked about an hour. She discussed with him various items of her assets which she wanted to dispose of in her will. She mentioned her church and that she had given a ring to Mrs. McReynolds. She stated that she did not want Clara Flynn to have any of her money. She mentioned the desire to leave some money to the children of Gus Flynn but was afraid their father, or Clara Flynn, would control it. Powell advised that she could leave the money for the children in charge of a trustee, and 'she was pleased about this, because it changed her mind about what she was going to do about some of her property.' Powell left. He prepared a will sometime later. He does not know how many days thereafter he took a draft of the will to her. On this occasion they discussed the will and she was satisfied with it. Powell then went to a Sister in charge of the ward for witnesses and told her he was going to have Mrs. Yorger execute a will. The Sister...