King's Estate, In re, s. KCD

Decision Date02 October 1978
Docket NumberNos. KCD,s. KCD
Citation572 S.W.2d 200
PartiesIn re the ESTATE of Sam KING, Deceased. Paul M. KING, Administrator, Respondent-Appellant, v. Shirley and David SMITH, Appellants-Respondents. 29305, 29315.
CourtMissouri Court of Appeals

Christian F. Stipp, David Thomas, Stipp & Thomas, Carrollton, for appellants-respondents.

John Franken, Robert A. Bryant, Carrollton, for respondent-appellant.

Before SHANGLER, P. J., and WASSERSTROM, J., and MASON, Special Judge.

DONALD L. MASON, Special Judge.

From a judgment of the Circuit Court of Carroll County decreeing that Shirley Smith and David Smith were the surviving joint tenants of two certificates of deposit the Administrator of the Estate of Sam King, Deceased, appeals. Shirley Smith appeals from that portion of the judgment decreeing that she was entitled to only one-half of the balance due on a contract for the sale of real estate.

Under Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976), our standard of review is to sustain the decree unless (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; (3) it erroneously declares the law; or (4) it erroneously applies the law, MFA Mutual Insurance Company v. Thost, 561 S.W.2d 431 (Mo.App.1978).

On November 5, 1975, Letters of Administration were issued to Paul M. King by the Probate Court of Carroll County in the Estate of Sam King, Deceased. On January 21, 1976, Paul King filed his Affidavit to Discover Assets and propounded Interrogatories to Shirley Smith. In the Affidavit the Administrator claimed that Shirley Smith was withholding assets derived from a contract for the sale of real estate dated July 29, 1975, one-half of which properly belonged to the Estate inasmuch as Sam King had been one of the sellers of the real estate, Shirley Smith being the other.

In answering the Interrogatories Shirley Smith asserted that prior to the execution of the contract for sale, she and Sam King owned the real estate as joint tenants with the right of survivorship and not as tenants in common; and, therefore, she was entitled to the total proceeds of the sale. She further divulged that she had in her possession and under her control a Certificate of Deposit at the First National Bank of Carrollton in the principal amount of $10,000, payable to Sam King, Agnes King, Shirley Smith or David Smith; and a Certificate of Deposit at the First National Bank of Carrollton in the principal amount of $40,000, payable to Sam King, Agnes King or David Smith. This disclosure precipitated the Administrator filing his Supplemental Affidavit to Discover Assets, citing in David Smith, and to also submit Interrogatories to David Smith. Supplemental Interrogatories were also submitted to Shirley Smith. In answering Interrogatories both Shirley and David averred that they were entitled to the Certificates of Deposit, being the surviving joint tenants of Sam King, Deceased. A hearing was held in the Probate Court on April 5, 1976, and the cause was taken under advisement. On April 21, 1976, the Probate Court ruled, inter alia, that Shirley and David Smith were entitled to the Certificates of Deposit as surviving joint tenants and that Shirley Smith was entitled to the entire proceeds of the contract for the sale of the real estate. The Administrator appealed to the Circuit Court of Carroll County on April 30, 1976.

On November 23, 1976, trial was had before the Circuit Judge (now retired) without a jury. On December 20, 1976, judgment was entered decreeing (I) that Shirley and David Smith were surviving joint tenants of Sam King and entitled to the Certificates of Deposit; and (II) the Estate and Shirley Smith were each entitled to one-half of the proceeds from the contract for the sale of real estate. Each party duly perfected their appeal. We will focus on the evidence adduced as we discuss each topic.


For reversal the Administrator urges that the (1) Certificates of deposit did not comply with Section 362.470; 1 (2) the Certificates having been purchased solely from the funds of Sam King and his deceased wife belonged to his Estate; (3) the admission of testimony of F. G. Rea was violative of Section 491.010, the "dead man's statute"; and (4) the "best evidence rule" should have excluded the admission of certain defendant's exhibits. We will identify the alleged erroneous evidence and exhibits as we discuss these points.

On November 10, 1975, the First National Bank of Carrollton, Missouri, by its President, F. G. Rea, issued its nonnegotiable 2 Certificate of Deposit No. 7995 in the face amount of $40,000. This Certificate recited that "Sam King, Agnes King or David Smith" had deposited that amount with the bank, payable 12 months hence with interest at the rate of six percent per annum. Also, on the same date the bank issued its Certificate of Deposit No. 7996. That Certificate recited that "Agnes King, Sam King, Shirley Smith or David Smith" had deposited $10,000 under the same terms. Each Certificate recited that the interest The Certificate of Deposit form used by the bank was in triplicate with carbon paper inserted between the first and second and second and third forms by the manufacturer. As can be gleaned from an examination of the exhibits, and as testified to by the Administrator's witness, a vice-president of the bank, the inserted carbon paper permits the completion of the original and two duplicates contemporaneously, whether it be in longhand or typing. On completion of the Certificate the original was given to the depositor and the two duplicates were kept by the bank as its records of the transaction. The quoted language which we have set forth above appears on the face of the original and the duplicates. On the reverse side of what appears to be the first duplicate of No. 7996, is printed a graph to record interest accrued. On the reverse side of what appears to be the second duplicate is a graph to record payment of accrued interest. Under the legend for disposition of interest, an "X" appears in the box adjacent to "deposit to checking account." The names of the depositors are the same as on the face of the Certificate and, likewise, are written in longhand. Under the printed word "authority" appears the signature of Agnes King. Under the signature of Agnes King appears the printing "payable to either/or survivor." In the box adjacent to that printed language an "X" in ink has been placed. The reverse side of the two duplicates of Certificate No. 7995 are the same with one addition. On the reverse side of the second duplicate following the longhand names of the depositors appears "either/or surv." The Administrator, as plaintiff, introduced the original of each Certificate and objected strenuously to the admission of the two duplicate copies of each Certificate by the defendants. The court received the duplicates on the grounds that the face of the Certificate created an ambiguity as to the intent of the parties in the creation of the joint tenancy account. The Administrator now urges that the admission of these duplicates violates the common law "best evidence rule."

was to be deposited "to checking account." Each Certificate bore the social security account No. 539-09-8625. Neither the owner of the checking account to which the interest was to be deposited nor the owner of the social security number was identified on the documents.

The transcript reveals that during the cross-examination of plaintiff's witness concerning the duplicates of each Certificate, the Administrator made various objections to the testimony leading to the admission of the duplicates, none of which objections encompassed the reason now advanced. The purpose of objections is to avoid trial error and to enable the court to rule intelligently. To that end the burden is on the party who objects to the admission of evidence to state the proper ground for exclusion, Lewis v. Hubert, 532 S.W.2d 860 (Mo.App.1976). Objections should be specific so that the trial court can realize what rule of evidence is being invoked and why that rule of evidence would exclude the evidence, Lindsey v. P. J. Hamill Transfer Company, 404 S.W.2d 397 (Mo.App.1966). Where the proper objection is not made the trial court cannot be convicted of error in overruling the objection, Crabtree v. Reed, 494 S.W.2d 42 (Mo.1973); and nothing is preserved for appellate review, Federal Deposit Insurance Corporation v. Crismon, 513 S.W.2d 305 (Mo.1974); Plumlee v. Ramsay Dry Goods Company, 451 S.W.2d 603 (Mo.App.1970).

In a court-tried case this Court does not consider errors as such in the admission or exclusion of evidence; but we arrive at our conclusions by considering only the evidence which is properly admissible, Ruckman and Hansen v. State Highway Commission, 546 S.W.2d 500 (Mo.App.1976); Hunt v. Easley, 495 S.W.2d 703 (Mo.App.1973); Triplett v. Wyatt, 360 S.W.2d 386 (Mo.App.1962). There is a reason why the duplicate of each Certificate was admissible which lays waste to the Administrator's "best evidence rule" assertion. The original and two duplicates of each Certificate were completed contemporaneously by the use of carbon paper. The second and third sheets are not considered as copies Perpetuating the same argument as to the nonadmissibility of the duplicates, the Administrator urges that the original of each Certificate, considered alone, did not conform to the requirements of Section 362.470, RSMo., so as to create a joint tenancy in Shirley and David Smith as survivors of Agnes King who died on the 8th day of March, 1975, and Sam King who died on the 9th day of October, 1975. This argument continues to ignore that the duplicates were properly admitted into evidence, and, with the original, constitute the total documentation of the transactions, In Re Estate of LaGarce, 487 S.W.2d 493 (Mo.banc 1972). We can perceive no difference in creating bank records by the mechanics...

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