Harris Banking Co. v. Miller

• Decision Date: 25 October 1905
• Citation: 190 Mo. 640,89 S.W. 629
• Parties: HARRIS BANKING CO. v. MILLER et al.
• Court: Missouri Supreme Court

89 S.W. 629

190 Mo. 640

HARRIS BANKING CO. v. MILLER et al.

Supreme Court of Missouri, Division No. 2.

October 25, 1905.

1. INTERPLEADER — RIGHT TO REMEDY.

Where a certificate of deposit issued by a bank was assigned by the holder during his lifetime, and after his death there were rival claims between the assignee and the holder's executors, equity has jurisdiction, by suit for interpleader brought by the bank, to determine the rightful owner.

2. APPEAL — REVIEW — WEIGHT OF EVIDENCE.

Where the question is one of equity, the finding and conclusion of the circuit court are open to review; and, where the evidence is practically undisputed, the Supreme Court has a right to weigh the testimony.

3. GIFTS — INTER VIVOS — NECESSITY OF DELIVERY.

To constitute a valid gift inter vivos, an intention of the donor to give is not alone sufficient, but the intention must be executed by complete and unconditional delivery.

4. SAME — TIME OF TAKING EFFECT.

A gift cannot be made to take effect in the future.

5. SAME — RETENTION OF POSSESSION.

Evidence of the alleged donee of a certificate of deposit, to whom the same had been indorsed, that the donor showed it to her and permitted her to read it, but said he wanted to keep it in his possession to draw the interest on it; that it would be hers at his death, but he would draw the interest while he lived — was insufficient to establish a valid executed gift inter vivos.

6. TRUSTS — CREATION BY PAROL.

The statute of frauds (Rev. St. 1899, § 3416) does not by its terms include personal chattels, and does not prohibit the creation of an express trust in such property by parol.

7. SAME — ENFORCEMENT — DEFENSE.

The assertion of a gift inter vivos, and failure to establish the same, does not prevent the party from showing a perfect valid trust.

8. SAME — PLEADING.

An interplea alleged that the interpleader was the owner of a certificate of deposit, and that the other claimants had no right thereto; that at the earnest solicitation of decedent and of his twin brother she undertook to keep house for them; that such brother was without means of support and living off the bounty of decedent; that at the solicitation of said decedent she entered on the work and continued in the discharge of duties until the death of the twin brother; that, in recognition of her kindness and the work performed, the said decedent, having obtained a certificate of deposit from a bank, gave the right to have and receive the money to the claimant, and indorsed said certificate to her; and that it was now wrongfully withheld by the executors — and prayed for judgment for the amount of the deposit and for such orders as might be proper. Held a sufficient assertion of a trust in such fund, on the failure of the interpleader to establish a gift of the same, to justify the court in determining the existence of the trust and to enforce it.

9. SAME — CONSIDERATION.

If a complete valid trust is established, it will be enforced, notwithstanding it is purely voluntary.

10. SAME — CREATION OF TRUST IN CERTIFICATE OF DEPOSIT.

A depositor, at the time of making a deposit in a bank, consulted the officers of the bank as to the method he should pursue so that a certain person could be the absolute owner of the property, and that, in case of his death, she could come to the bank and draw the money. He was advised to take the certificate of deposit in his own name and indorse it to such person, which he did by the execution of an assignment on the certificate. He then notified the beneficiary of what he had done, and showed her the certificate; but he retained it, saying that he desired to keep it and draw the interest thereon during his life, telling her that it should be hers at his death. Held, that such facts established an executed parol trust.

11. APPEAL — REVIEW OF GROUNDS OF DECISION.

In an equity cause, the decree of the circuit court may be affirmed, if proper, notwithstanding the reason upon which it was based is not approved.

Appeal from Circuit Court, Putnam County; P. C. Stepp, Judge.

Action of interpleader by the Harris Banking Company against Helen A. Miller and others. From a judgment in favor of Helen A. Miller, the other defendants appeal. Affirmed.

T. B. Davis, Higbee & Mills, Robison & Robison, and N. A. Franklin, for appellants. Wilson & Clapp and A. W. Mullins, for respondent.

GANTT, J.

On July 25, 1901, Giles Burlinggame, of Putnam county, Mo., died testate at said county, and on July ____, 1901, his will was duly probated, and letters testamentary were issued to the defendants William Johnson and James E. Davis, who were duly qualified and are acting as such executors of said estate. On August 26, 1902, the Harris Banking Company filed its petition in the circuit court of Putnam county, stating that it was and still is a banking corporation, with its banking house in the town of Harris, Sullivan county, Mo.; that for several years prior to his death said Burlinggame had kept a considerable sum of money upon deposit in plaintiff's bank, bearing interest; that on May 22, 1901, plaintiff issued to said deceased a certificate of deposit for $8,080.91, which was dated June 11, 1901, and which said Burlinggame on said May 22, 1901, by written indorsement, assigned to Helen A. Miller; that plaintiff is informed and believes said Burlinggame delivered said certificate of deposit to said Helen A. Miller soon after said assign ment and before his death; that plaintiff is informed and believes that said certificate of deposit was in the possession of said Burlinggame at the time of his death, and whether he held the same for himself or for Helen A. Miller plaintiff does not know; that said Helen A. Miller claimed same as her absolute property, but said executors inventoried same as the assets of the estate of said Burlinggame, and refused to deliver it to her; that said executors on the one hand, and the said Helen A. Miller on the other hand, are now each demanding plaintiff to allow amount due on said certificate of deposit, and were threatening to sue the plaintiff if the sum was not paid to each of them, respectively, in full; that plaintiff was ready and willing to pay the amount due on said certificate of deposit to the party legally entitled thereto, or to pay the sum into court for such party as shall be adjudged entitled to the same; that it would be unsafe for plaintiff to pay the sum to either claimant without its being judicially determined to which of the claimants it should be rightfully paid — and prayed that said Helen A. Miller and the said executors be required to interplead, setting up their respective claims to said certificate in order that it might be judicially determined to whom plaintiff should pay the sum, and for all proper relief. At the October term of said court, 1902, Helen A. Miller filed her interplea, alleging that she was the owner and rightfully entitled to the said certificate of deposit and the fund evidenced thereby, and that the said Giles Burlinggame had no right, title, or interest therein; that on or about the ____ day of ____, 1894, at the special solicitation of the said Giles Burlinggame, said Helen A. Miller moved from her home at Springfield, Mo., to the residence of said Giles Burlinggame and his twin brother, Miles Burlinggame, both of whom were old and infirm, living alone, both being bachelors and her cousins, and undertook to keep house, wait on, and nurse them; that said Miles was then, and has continued to be, without means of support, and was living off the bounty of his brother, the said Giles Burlinggame, and that solely at the solicitation of said Giles Burlinggame she entered upon the work, service, and duties she had so assumed, and from that date continued in the discharge of the duties in keeping house, waiting on, and nursing said Burlinggames, until the death of said Giles Burlinggame on July 25, 1901; that in recognition of the kindness she had so shown said Giles Burlinggame and his brother, and because of the work and the labor so performed, and the care and the attention she had bestowed upon said Burlinggames during all that period, the said Giles Burlinggame, having deposited in the plaintiff's bank the sum of $8,080.91, and having received the said certificate of deposit therefor from said bank, gave the same and the right to have and receive said money so on deposit to said Helen A. Miller, and indorsed and signed said certificate of deposit to her on May 22, 1901, and that certificate of deposit is now wrongfully withheld from her by said Johnson and Davis, executors of the will of said deceased, because they, as such executors, have no right thereto and no interest in said fund. Wherefore she prays judgment for said sum of $8,080.91, and that the plaintiff bank be required to pay the same to her, and that the court will make such orders and render such judgment as may be proper. On the same day Johnson and Davis, the executors, filed their petition as interpleaders, and admitted that they were the executors of the last will and testament of Giles Burlinggame, deceased, and alleged that said banking company duly issued its certificate of deposit to said deceased on date June 11, 1901, for the sum of $8,080.91, bearing 3 per cent. interest to maturity only; that said certificate ever afterwards remained the property of said Burlinggame, and was his property at his death; that said money was due from said banking company to said Burlinggame, with all interest thereon, and was wholly unpaid at his death, and was a part of the assets of his estate; that said certificate was duly taken possession of by them, as executors of the last will of said deceased, and duly inventoried by them as assets of said estate, and they are now the owners and holders thereof as such, and said certificate and said sum of $8,080.91, with all interest, is now due, for which they pray judgment, and that this court order the same paid...