Hawkins v. Allison

• Decision Date: 06 February 1989
• Docket Number: No. 15584,15584
• Citation: 764 S.W.2d 719
• Parties: Helen Carroll HAWKINS, et al., Appellants, v. Dale Lee ALLISON, et al., Respondents.
• Court: Missouri Court of Appeals

Page 719

764 S.W.2d 719

Helen Carroll HAWKINS, et al., Appellants, v. Dale Lee ALLISON, et al., Respondents.

No. 15584.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 6, 1989.

Morran D. Harris, Osceola, for appellants.

George D. Nichols, Lamar, for respondent, Linda Allison.

Donald B. Russell, Nevada, for respondent, Dale Lee Allison.

CROW, Presiding Judge.

This is an appeal by the plaintiffs from a judgment adverse to them in a proceeding to discover assets in the estate of Archie L. Carroll, deceased. At issue are a bank account and three certificates of deposit.

Mr. Carroll ("Archie") executed his last will and testament May 9, 1978, naming his wife, Dortha, executrix and devising and bequeathing his entire estate to her if she survived him. The will provided that if she predeceased him the estate was to be divided equally between his nieces and nephews who were living as of the date of his death, and the will named Dale Lee Allison ("Dale") as substitute executor.

Dortha died July 5, 1980, survived by Archie. At the time she died there was a checking account, number 15-368-0, in Tri-County State Bank of El Dorado Springs ("Tri-County") in the names of Archie and Dortha as joint tenants with right of survivorship.

Leola Bland, an employee of Tri-County, testified that on July 22, 1980, Archie came to the bank and told her he wanted Linda Allison put on the card for account number 15-368-0. Ms. Bland testified:

"And it is legal procedure to explain to him at the time, anyone, adding a name if they want it to be just where they can write checks or if they want right of survivorship; and which it states on the back of this card right of survivorship, which I told him. I read and explained to him that's what this was. He said that's the way he wanted it, right of survivorship, so that is why that is on the back."

Linda Allison ("Linda") is the wife of Dale, having married him November 22, 1976. At time of trial ¹ Linda had been employed at Tri-County 25 years, being appointed cashier and secretary of the board in 1984 and elevated to director in 1986. Dale, as best we can deduce from the record, was unrelated by blood to Archie, but was a nephew of Dortha. ²

Leola Bland was asked whether Linda was with Archie on July 22, 1980, when Archie asked that Linda's name be put on account number 15-368-0. Ms. Bland replied:

"We had her to come back to bookkeeping, which is general procedure, me being supervisor of bookkeeping at the time, I would have called her."

Ms. Bland recalled no conversation between Linda and Archie about the account. Asked about Archie's "mental condition or mental state" at the time, Ms. Bland answered:

"He was very alert at that time when he--when I was reading the card and discussing with him about the joint of survivorship."

Archie and Linda subscribed their respective names to a signature card changing the ownership of account number 15-368-0 to themselves as joint tenants with right of survivorship. Archie was 83 years of age at this time. ³

On October 2, 1980, Archie came to Tri-County and conferred with Ronald M. Sewell, president of Tri-County, about a "money market certificate." At Archie's direction Sewell issued certificate number 11197 for $40,000 in the names of Archie or Linda as joint tenants with right of survivorship, to mature in 30 months. Sewell's testimony included this:

"Q. Did Linda Allison, in any manner, participate in the issuance of that certificate?

A. No.

Q. Did you observe Linda Allison discussing or talking with Archie Carroll at or prior to the time that certificate was issued?

A. No.

....

Q. Did you discuss with Linda Allison the issuance of this certificate?

A. Not at all.

....

Q. In your judgment did [Archie] understand absolutely the significance of this transaction?

A. No doubt about it. That's why it was set up that way, so it would not be included in the--in his will.

Q. His mental condition was good at that time?

A. Absolutely.

Q. No question about it in your mind?

A. None--None whatsoever.

Q. Was he what one would call an independent, strong-willed individual, if you know?

A. Yes."

On January 9, 1981, Archie came to Tri-County and told Ms. Bland he "wanted to draw interest" on account number 15-368-0. Ms. Bland testified:

"[A]gain, we explained did he want it left joint of survivorship with he and Linda Allison, and again, he wanted it joint of survivorship."

Asked whether Linda was with Archie on this occasion, Ms. Bland replied:

"No, I'm sure she wouldn't have been because he would have come back and said he wanted to draw interest on his banking account; and we, again, would have had to call for her, because, see, when they come back to make an interest-bearing account, we have to have a new signature card...."

Archie and Linda subscribed their respective names to a signature card changing account number 15-368-0 to "an interest-bearing NOW account" in the names "A.L. Carroll or Linda Allison" as joint tenants with right of survivorship. Ms. Bland's testimony included this:

"Q. Ms. Bland, at all times during the period of time that these transactions occurred that you testified that you handled, what was Archie Carroll's mental condition and health?

A. Well, anything that I transacted with him on the signature cards there was no problem with his mental condition.

Q. He fully understood the import of his acts; is that correct?

A. Why I'm sure he did because being--having it read to him."

On April 2, 1983, some 27 months after the transaction of January 9, 1981, Archie came to Tri-County to renew certificate number 11197. Carol Reed, a Tri-County employee, asked Archie if he wanted the new certificate titled the same way. Asked how he responded, Ms. Reed testified: "He said just issue it as it was prior."

Ms. Reed issued money market certificate number 15217 dated April 2, 1983, in the names "Archie L. Carroll or Linda Allison" payable to either or survivor. The amount of the certificate was $41,736.43, which included interest. Ms. Reed handed the certificate to Archie and he left the bank. Asked whether Archie talked with Linda as he departed, Ms. Reed replied: "No, not to my knowledge. No."

On August 15, 1983, Archie, who had resided alone in his home since Dortha's death, was admitted to Community Care Center in El Dorado Springs as a resident. He made his own arrangements for this and signed all his admission records. At that time he had a sister who was a resident at the same facility.

Kay Harper, administrator of the facility, testified that when Archie was admitted he was "pretty much self-care to a certain extent." She added, "He needed observation on his dressing and with food, being fed and that type of care."

Judith Russell, a registered nurse and director of nurses at Community Care Center, recounted that the main thing that brought Archie to the Center was malnutrition. She explained:

"He wasn't eating properly on his own. I don't know how much prior to admission that his wife had died, but he still cried a lot about her and was not eating."

Archie was examined by a doctor upon admission to Community Care Center. Asked about the results of that examination, Ms. Russell testified:

"He had cancer of the prostrate [sic] prior to admission. He had eye disorders, glaucoma. He had congestive heart failure, acute chronic prostrate [sic], chronic cystitis, glaucoma with cataracts, he had kidney failure; as the time went on that was added to his diagnosis."

On October 11, 1983, Archie was transferred to Cedar County Memorial Hospital for observation. He was returned to Community Care Center three days later. Asked about his condition on that occasion Ms. Russell responded:

"[I]t was acute prostatitis and ... chronic cystitis, organic brain syndrome, glaucoma, and cataracts.

Q. Okay. What does organic brain syndrome mean?

A. It's what we used to call hardening of the arteries. It's kind of a catch-all for anyone that gets old and a little forgetful. Now, they're calling it Alzheimer's....

Q. Now, the fact that he had that, ... you just called it brain syndrome, did that prevent him from looking after himself or his affairs at that time?

A. No, sir.

Q. And did he, in fact, see after himself at that point in time?

A. Yes."

On January 9, 1984, Archie was again hospitalized, this time because of a fractured hip. He had surgery to repair it and was returned to Community Care Center January 20, 1984. Regarding Archie's condition at that time, Ms. Russell's testimony included this:

"Q. ... What did [Archie's physician] diagnose as primary diagnosis and secondary?

A. Parkinson's.

Q. And what's secondary?

A. Prostrate [sic], adenocarcinoma, senile dementia[,] current hip trauma, and glaucoma.

Q. What is senile dementia?

A. It's a condition of elderly people.

Q. Well--

A. Same as organic brain syndrome. I mean they use them interchangeably. I'm quite sure if you got a medical book out there would be a difference in them, but they kind of use them interchangeably and now they've added Alzheimer's disease."

Ms. Russell recalled that in July, 1984, Archie had "a period of confusion." One doctor called it paranoia. The physician prescribed one milligram of Haldol twice a day. Ms. Russell described Haldol as a "psychotropic drug." According to Ms. Russell, Archie had an excellent response to the medication. She added:

"We had it as PRN then after it was stopped twice a day. We just kept it PRN and he used it very infrequently, two to three times a month. When he would get in a period of confusion, we would use it; and it would pull him out of it."

On October 4, 1984, Archie telephoned Tri-County and talked with Brenda Beaty, who worked in "the CD department." Archie requested Ms. Beaty to issue a money market certificate for $16,861.28 in the names "A.L. Carroll or Dale Allison" payable to either or survivor. Ms. Beaty prepared certificate number 17261 per Archie's...