Lafayette-South Side Bank & Trust Co. v. Siefert

• Citation: 18 S.W.2d 572
• Decision Date: 02 July 1929
• Docket Number: No. 20817.,20817.
• Parties: LAFAYETTE-SOUTH SIDE BANK & TRUST COMPANY, A CORPORATION, RESPONDENT, v. ALICE SIEFERT, EXECUTRIX OF THE WILL OF KATHARINA ROSE, AND EMMA DIPPEL, APPELLANTS.<SMALL><SUP>*</SUP></SMALL>
• Court: Court of Appeal of Missouri (US)

18 S.W.2d 572 LAFAYETTE-SOUTH SIDE BANK & TRUST COMPANY, A CORPORATION, RESPONDENT,
v.
ALICE SIEFERT, EXECUTRIX OF THE WILL OF KATHARINA ROSE, AND EMMA DIPPEL, APPELLANTS.^* No. 20817. St. Louis Court of Appeals. Missouri. Opinion filed July 2, 1929.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Erwin G. Ossing, Judge.

[18 S.W.2d 573]

REVERSED.

Ebenhoh & Johnson for appellant, Emma Dippel.

In the absence of a statute there is a presumption, at least, of joint tenancy and right of survivorship. Kennedy v. McMurray, 146 Pac. 647; Miller v. Bank, 206 Pac. 796; Trust Co. v. Grobel, 114 Atl. 353; O'Connor v. Dunnigan, 143 N.Y. Supp. 373; Ludwig v. Brunner, 169 N.W. 890; Hatsted v. Bank, 172 Pac. 613. However, we are concerned with the law of Missouri. The trial court erred in overruling the demurrer of defendant Emma Dippel, and erred in sustaining plaintiff's bill and finding same a proper bill of interpleader for the reason that sections 11779 and 11840, Revised Statutes of Missouri, 1919, were in force and effect when the certificates of deposit in question were issued by plaintiff, were in force and effect when plaintiff's bill was filed, and when the orders of court were made. Section 11779 creates a deposit in any form, be it a savings account, checking account or certificate of deposit, 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, a joint tenancy and right of survivorship and absolute ownership in the survivor, free from the claim of any other person. The latter part of said section, reciting that bank shall be discharged for all payments made on account of such deposit prior to the receipt of said bank of notice in writing signed by any one of such joint tenants not to pay such deposit in accordance with the terms thereof, implies that none other than joint tenants during lifetime of both have right to make demand. The question of demurrability to the bill of plaintiff depends on whether the question is one of law or one of fact, and under the statute of this State, and particularly sections 11779 and 11840 thereof, the right of survivorship is a matter of law. Defendant Emma Dippel's demurrer should have been sustained by the court, because plaintiff's bill shows on its face that the certificates of deposit were payable to Catherine Rose or Emma Dippel, either or the survivor, and that Emma Dippel was the survivor, making her the absolute owner thereof, under our law, and subject to the claim or demand of no one. Section 11840, Revised Statutes of Missouri 1919, is identical with section 11779 thereof, except that the words "trust company" are used in lieu of the word "bank." Mississippi Valley Trust Co. v. Smith et al., 9 S.W. (2d) 58. Plaintiff states in its bill that the certificates of deposit were issued to Catherine Rose. Plaintiff was the judge, at the time said certificates were issued, if Catherine Rose was intentional and intelligent. The transaction was accepted, acquiesced in and acknowledged by plaintiff, and plaintiff should have recognized the rights of the survivor without filing an interpleader suit. Commonwealth Trust Co. v. Reagan, 193 Mo. App. 290. Section 11779, R.S. 1919, was construed by the St. Louis Court of Appeals in Ball v. Mercantile Trust Co., 220 Mo. App. 1165, 1172 S.W. 415.

Frank X. Hiemenz for respondent.

(1) No appeal may be taken and no review may be had unless a final judgment or decree has been rendered in the cause. The St. Joe Terminal R.R. Co. v. The Hannibal & St. Joseph R.R. Co., 94 Mo. 535; Voorhis v. Western Union, etc., 59 Mo. App. 55; Spears v. Bond, 79 Mo. 465; Macke v. Byrd, 109 Mo. 487, 19 S.W. 70; Strickler v. Tracey, 66 Mo. 465; Walser v. Haley, 61 Mo. 445; Evans v. Russell, 61 Mo. 37; Nobles v. Spaulding, 51 Mo. 571; Lowe v. Frede, 258 Mo. 208, 167 S.W. 443; City of Plattsburg v. Allen, 84 Mo. App. 432; Rodgers v. Kallmeyer, 104 Mo. App. 137; Merchants Exchange v. Sessinghaus, 59 Mo. App. 106. (2) After a stakeholder has actually been forbidden by one of the claimants to pay over the fund to another, he is permitted to discharge himself by invoking the aid of the court, and is not required to exercise his discretion (as to who is entitled to the fund) at his peril. Smith v. Grand Lodge, etc., 124 Mo. App. 181, Supreme Council v. Palmer, 107 Mo. App. 157; Little v. St. Louis Union Trust Co., 197 Mo. 281; Hayden's Executers v. Marmaduke, 19 Mo. 403; Repetto v. Raggio, 201 Mo. App. 628, 213 S.W. 525; Sovereign Camp v. Wood, 100 Mo. App. 655, 75 S.W. 377. (3) Attorney's fee allowed the attorney for plaintiff in an interpleader suit is paid out of the fund, but may be taxed as costs against the unsuccessful interpleader. Sovereign Camp v. Wood, 100 Mo. App. 655, 75 S.W. 377; Supreme Council v. Palmer, 107 Mo. App. 157; Clay County Court v. Baker, 210 Mo. App. 65, 241 S.W. 447; Grooms v. Mullett, 133 Mo. App. 477; Glaser v. Priest, 29 Mo. App. 1; Franco-America, etc. v. Joy, 56 Mo. App. 433.

HAID, P.J.

This suit was instituted by the Lafayette-South Side Bank & Trust Company against Alice Siefert, Executrix of the will of Katharina Rose, and Emma Dippel. The petition alleged that the plaintiff's predecessor issued to Catherine Rose its two certificates of deposit in the sum of $1000 each, payable to Catherine Rose or Emma Dippel, either or the survivor, at maturity; it alleged that Catherine (or Katharina her correct name) died testate in July, 1927, and that Alice Siefert, Executrix of the will of Katharina Rose and Emma Dippel have both demanded payment of said certificates and each have notified plaintiff not to pay the same to the other; that the executrix claims the full amount of the certificates for the alleged reason that the money represented thereby is and was at all times the property of the deceased and that Emma Dippel had no interest therein whatsoever and that Emma Dippel demands payment of the sum according to the terms of the certificates; that plaintiff has no interest in the controversy; that it is obliged and obligated to pay the face value of said certificates to the person legally entitled thereto; that it cannot determine which of the demandents is legally entitled to the sum represented by the certificates and asks the...