LaGarce's Estate, In re

• Decision Date: 11 December 1972
• Docket Number: No. 57936,57936
• Citation: LaGarce's Estate, In re, 487 S.W.2d 493 (Mo. 1972)
• Parties: In the Matter of the ESTATE of August LaGARCE, Deceased. Bertha LaGARCE, Executrix of the Estate of August LaGarce, Deceased, Respondent, v. Leona MOULDON and William B. Quinn, Appellants.
• Court: Missouri Supreme Court

Page 493

487 S.W.2d 493

In the Matter of the ESTATE of August LaGARCE, DeceasedBertha LaGARCE, Executrix of the Estate of August LaGarceDeceased, Respondent, v.Leona MOULDON and William B. Quinn, Appellants.

No. 57936.

Supreme Court of Missouri, En Banc.

Dec. 11, 1972.

Martin Schiff, Jr., Fordyce, Mayne, Hart man, Renard & Stribling, Clayton, Richard R. Russell, Kirkwood, for respondent.

James E. Heckel, St. Louis, for appellants.

HOLMAN, Presiding Judge.

This is a discovery of assets proceeding.See§§ 473.340 to 473.353, ¹ inclusive.The probate court sustained a motion for judgment on the pleadings filed by plaintiff-executrix and accordingly entered a judgment for plaintiff.Upon appeal to the circuit court a judgment was also entered on the pleadings in favor of plaintiff and against defendants.Defendants appealed to the St. Louis District of the Court of Appeals.That court adopted the opinion of Judge Simeone which reversed the judgment and remanded the case with directions to enter a judgments in favor of defendants.Upon plaintiff's application we ordered the case transferred to this court.It will be determined here 'the same as on original appeal.'Mo.Const., Art. V. § 10, V.A.M.S.

We adopt a portion of Judge Simeone's opinion, as follows:

'On February 3, 1970, Bertha LaGarce, executrix of the estate of August LaGarce, filed an affidavit to discover assets which she alleged were unlawfully withheld by James and Leona Mouldon and William B. Quinn.She alleged that savings certificate No. 494 of the Tower Grove Savings and Loan Association of St. Louis, Missouri, in the sum of $7,000, was unlawfully withheld by the Mouldons and Quinn.²The probate court ordered a citation to issue to the Mouldons and Quinn to appear.

'Subsequently, and in accordance with law, interrogatories were addressed to James and Leona Mouldon and William B. Quinn.Answers were, in due course, filed by the defendants.No evidence was ever taken since a motion for judgment on the pleadings was sustained.The interrogatories, exhibits, and the answers given constitute the pleadings and contain the controlling and dispositive facts.³

'Sometime prior to August 21, 1969, August LaGarce was the sole owner of a Tower Grove Savings and Loan Association CertificateNo. 494 in the amount of $7,000.On that date, according to the answers to interrogatories, August LaGarce, in the presence of James and Leona, had the certificate transferred to his name and the names of James and Leona 'as joint tenants with right of survivorship and not as tenants in common.'This was done at the Tower Grove office.Contemporaneously, each signed an agreement which stated that '* * * It is agreed by the signatory parties with each other and by the parties with the Association that any funds placed in or added to the account by any one of the parties is and shall be conclusively intended to be a gift at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account * * *.'The agreement was in the names of August LaGarce, James Mouldon, and Leona Mouldon'as joint tenants with right of survivorship and not as tenants in common, and not as tenants by entirety * * *.'* * * No consideration was paid by James or Leona.The certificate was delivered by August to James and Leona on that same date.August was the first cousin to James'mother.On August 21, 1969, when August instructed the Tower Grove Savings and Loan Association, in the presence of James and Leona, to change the certificate from his name alone to his name and James and Leona, there was a conversation between these parties and Mrs. Mayer, an employee of Tower Grove.August told Mrs. Mayer that he wanted to change the certificate so that 'if anything happened to him the certificate would belong to James Mouldon and Leona Mouldon.'After Mrs. Mayer changed the certificate by typing the names of James and Leona and each had signed the card, Mrs. Mayer handed the certificate to August who in turn handed it to James Mouldon.Mrs. Mayer then said, 'The way that certificate is now made out, the person holding it can bring it in and cash it at any time without the signature or consent of the others, and if anyone whose name is on it dies then it will belong to those that are living.'August said, 'Yes, that is the way I want it, and I want them to have it and keep it and if I want it I can get it.I know they won't cash it.'James replied, 'If he wants it back he can get it.'

'On August 23, 1969, the Mouldons retained defendant-appellantWilliam B. Quinn to advise them as to the legal effect of the transfer and delivery of the certificate.About a week later, on August 30, 1969, Quinn was retained by August LaGarce to represent him in a controversy he was having with his wife.In due time, August reconciled with his wife and wrote to Quinn that his services were no longer necessary and paid him for services rendered between August 30 and September 30, 1969.During the term of Quinn's employment, August delivered to him certain property and securities, consisting of cashier's checks, a passbook savings account, a certificate of deposit, bank stock certificates and savings certificates issued by Tower Grove, but these securities did not include CertificateNo. 494.Later, and on September 26, LaGarce went to Quinn's office and requested the return of these assets and securities.Quinn responded by letter on September 29, advising August he would return the assets just as soon as his schedule permitted him to arrange an appointment.On the same date LaGarce wrote Quinn terminating Quinn's services and requesting a statement.On September 30, August wrote to Quinn informing him that he had reconciled with his wife but was unable to fulfill the reconciliation agreement because Quinn had the assets in his office.On October 3, Quinn returned the assets to August and was paid for his services from August 30 to September 30, 1969.

'On the evening of Actober 3, August telephoned Leona and told her that his wife, Bertha, had promised to return to their home and live with him, provided he agreed to put her name on all his property.Leona asked him if he was calling to have the certificate returned and he said 'that wasn't the way he wanted things, but that he was very sick' and needed someone to take care of him.In this conversation Leona told August that she would turn the certificate (No. 494) over to his friend John Zakibe that evening.After concluding the phone conversation, leona and her husband 'decided' to make the certificate available to August by placing it in the hands of Mr. Quinn.That same evening Leona telephoned August and told him 'what had been decided by my husband and me about making the certificate available to him.'

'On October 7, the certificate was delivered to Quinn by the Mouldons, who on that date retained Quinn 'for the purpose of making it available to August and only to him' at the office of Quinn upon the condition that August would pay $150 to Leona and one Ruth Moffit for house cleaning and laundry.

'In her answers to interrogatories, Leona stated that on October 7, 1969, the certificate was placed in the possession of William B. Quinn with the request that 'he hold it so as to make it available to August LaGarce at the office of William B. Quinn, to be picked up personally by August LaGarce, when and if he so desired,' upon the conditions set forth above.

'The next day, October 8, a female telephoned Leona at her home and identified herself as Mrs. Mayer of Tower Grove.Mrs. Mayer stated she was calling about the certificate that August had transferred.She stated that August and his wife had been in the office for the purpose of having the certificate changed to the name of August and his wife but that since August did not have the certificate the change could not be made.She asked Leona if she had the certificate and if 'we would give it to Mr. and Mrs. LaGarce.'Leona told her that the certificate had been turned over to Quinn 'to make it available to August LaGarce, and only August LaGarce, and that if he wanted it he, and only he, could pick it up from William B. Quinn at his office.'Mrs. Mayer replied that August was very sick and that it was likely he would die and that he could not go to Quinn's office.Leona then stated that if August was so sick that he might die, then she would not turn over the certificate to anyone under any circumstances since it was August's intention that 'my husband and I have the certificate if he died, and that I would instruct William B. Quinn not to give the certificate to anyone, including August LaGarce, until the outcome of his illness was known.'Leona was unable to reach Quinn until after August died, when she instructed him to return the certificate to her, which was done on October 15.

'Strangely, all the circumstances came to a head on October 9, 1969: (1) Quinn received a telegram from an attorney, Richard Russell, demanding immediate delivery of the certificate; (2) Quinn dictated and signed a letter addressed to August requesting him to arrange to be in Quinn's office on October 10 for the purpose of making available to August, and no other person, the certificate in dispute and to collect $150 for services rendered to him; and (3) August died.

'Subsequently, the attorney for the executrix, Bertha LaGarce, demanded from Quinn that the savings certificate be returned, and within a few days thereafter the Mouldons retained Quinn to represent them in their claim to sole ownership of the certificate.The Mouldons claim ownership of the certificate because they say that August made a gift of it to them at the time he had it transferred from his name alone to him and the Mouldons.

'On February 3, 1970, the executrix of August's estate filed with the probate court her affidavit to discover assets alleging that James and Leona and Quinn had unlawfully...