Kaimann's Estate, In re, 41645

• Decision Date: 10 April 1950
• Docket Number: No. 2,No. 41645,41645,2
• Citation: 360 Mo. 544,229 S.W.2d 527
• Parties: In re KAIMANN'S ESTATE. BALLMANN v. KAIMANN
• Court: Missouri Supreme Court

Page 527

229 S.W.2d 527

360 Mo. 544

In re KAIMANN'S ESTATE.

BALLMANN v. KAIMANN.

No. 41645.

Supreme Court of Missouri, Division No. 2.

April 10, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 8, 1950.

Suelthaus & Krueger, and G. H. Suelthaus, St. Louis, for respondent-appellant.

Clem F. Storckman, St. Louis, Walter L. Metcalfe, St. Louis, for respondent-petitioner.

TIPTON, Judge.

This is a statutory action originating in the probate court of the city of St. Louis to discover assets in the estate of Stephen A. Kaimann, deceased. The petitioner was Anna C. Ballmann and the respondent was Francis S. Kaimann, both children of the deceased. The subject matter of this action was a balance of $10,480.25 in an account in the North St. Louis Trust Company standing in the name of 'Mr. Steve Kaimann or Mr. Francis S. Kaimann.' On appeal to the circuit court the jury was waived and that court found that Francis Kaimann was wrongfully withholding from the estate $7,833.72, and he was ordered to pay that sum to the estate. From this judgment, Francis Kaimann appealed to this court. This appeal is now being prosecuted by his widow, the administratrix of his estate.

At the time of his death, Stephen A. Kaimann was 85 years old and lived alone at his residence in St. Louis. He was survived by three children, Anna C. Ballmann, Francis and Clarence Kaimann, and certain children of his deceased children. For three months prior to his death he was confined in DePaul Hospital. He died on April 21, 1946.

On August 27, 1942, the deceased opened a joint account at the North St. Louis Trust Company with a deposit of $500.00. The agreement with the bank was to the effect that all deposits made by either Stephen Kaimann or Francis Kaimann shall be owned by them jointly with the right of survivorship. On April 14, 1944, deceased deposited in this joint bank account $1,065.03 and on April 17, 1945, he deposited $500.00 The fourth deposit of $2,024.88 was made on January 15, 1946. These items were in the handwriting of deceased. The fifth deposit for $1,909. 18, made February 13, 1946, the sixth deposit for $1,724.62, made March 14, 1946, the seventh deposit for $2,500.00, made on March 20, 1946, the ninth deposit for $883.80, and the tenth deposit for $125.00, both made on April 10, 1946, the eleventh deposit for $691.12, made April 15, 1946, and the twelfth deposit of $600.00, made on April 16, 1946, were all made in the handwriting of Francis Kaimann. The eighth deposit for $994.00, made on April 5, 1946, was made in the handwriting of Clarence Kaimann. It is undisputed that all of the deposits made in this joint account were made with money belonging to Stephen Kaimann except the last deposit for $600.00, made by Francis Kaimann, and this was replacement of a check for that amount drawn by Francis for payment on an automobile.

From 1922 until his death deceased maintained an active individual checking account in the Baden Bank. No deposits were made in this bank after January 1, 1946, and at the time of his death there was a balance of $917.43.

Stephen Kaimann was injured while shoveling snow in December, 1945. In February, 1946, he fell in his home and on the 12th day of that month he was taken to the hospital where he remained until April 18, 1946. He was then taken back to his home where he died three days later. Six days after his father's death, Francis Kaimann drew out of the joint account $10,480.26, which was the balance on the date of Stephen Kaimann's death.

The deceased had extensive rental real estate holdings in St. Louis. Francis Kaimann was his youngest child and he made out his father's income tax returns, kept his books and generally assisted his father with his affairs. Deceased, his daughter Anna and his son Clarence lived in the same block of the same street. All three children had a key to their father's home.

From May, 1941, until October 14, 1945, deceased placed in his safe deposit box at the Mercantile-Commerce Bank & Trust Company various sums of money which totaled $27,000.00 on the last named date.

The issues in this proceeding are made by the interrogatories and the answers filed. No formal pleadings are required in any action filed in a probate court. Spencer v. Barlow, 319 Mo. 835, 5 S.W.2d 28; Hall v. Greenwell, 231 Mo.App. 1093, 85 S.W.2d 150. There were eighteen interrogatories and answers filed. The issue made by these interrogatories and answers is whether the deposits belong to the estate of Stephen Kaimann or to Francis Kaimann.

The appellant contends that there was no evidence to show that the deposit agreement between the North St. Louis Trust Company and Stephen Kaimann and Francis Kaimann was not the real agreement between the parties, nor was there any evidence that it had been changed or modified between the date of the agreement, August 27, 1942, and the date of Stephen Kaimann's death. Therefore, all the money on deposit when Stephen Kaimann died became the absolute property of Francis Kaimann.

The deposit agreement complied with sections 7996 and 8070, R.S.Mo.1939, Mo.R.S.A. Both of these sections provide: 'When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made, * * *, shall become the property of such persons as joint tenants, * * *, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; * * *.'

We agree with the appellant that there is no evidence that would tend to prove that when the joint account was established in the North St. Louis Trust Company the deposit agreement was not the real agreement of the parties; nor is there any evidence of any change in the agreement. Except as to the last $600.00 deposit, it is admitted by both parties that all the money deposited in this joint account was money belonging to Stephen Kaimann. All deposits made with his knowledge and consent establishes a presumption of joint ownership in the fund with all the incidents attached to such ownership, including the attendant rights of survivorship therein. This is true because the law is well settled to the effect that proof of a deposit made by one for the use of himself and another with the right of survivorship raises a presumption that the survivor takes absolute title upon the death of the other; but this presumption may be overcome by competent evidence tending to overcome such presumption. Ball v. Mercantile Trust...