Longacre v. Knowles, 47546

• Decision Date: 08 February 1960
• Docket Number: No. 2,No. 47546,47546,2
• Parties: Joseph N. LONGACRE, Appellant, v. Kathleen KNOWLES, Individually and as Administratrix of Estate of Merit Gustavis Longacre, Deceased, Respondent
• Court: Missouri Supreme Court

Page 67

333 S.W.2d 67

Joseph N. LONGACRE, Appellant, v. Kathleen KNOWLES, Individually and as Administratrix of Estate of Merit Gustavis Longacre, Deceased, Respondent.

No. 47546.

Supreme Court of Missouri, Division No. 2.

Feb. 8, 1960.

Motion for Rehearing or for Transfer to Court en Banc Denied

March 14, 1960.

Donald B. Russell, and Robert L. Ewing, Ewing, Ewing, Ewing, Carter & Wight, Nevada, Mo., for appellant.

Everett E. Teel, Nevada, Mo., for respondent.

STOCKARD, Commissioner.

This suit was originally filed pursuant to Section 473.357 RSMo 1949, V.A.M.S., in the probate court of Vernon County for the determination of title to certain personal property held by the administratrix of the estate of Merit Gustavis Longacre, known and referred to in the record as Gus Longacre. Upon appeal to the circuit court the judgment was in favor of the administratrix, and plaintiff has appealed.

Gus Longacre died intestate on January 28, 1957, leaving as his sole heirs Joseph N. Longacre, plaintiff-appellant, a nephew, and Kathleen Knowles, a niece, who individually and as administratrix is defendant-respondent. After the death of Gus Longacre the following notes and bonds were found among his possessions and which the administratrix contends are assets of his estate.

Exhibit 1. A note executed by Dorris L. Sherrell and Danny D. Sherrell, for $4,200 payable to 'M. Gus Longacre and Joe Longacre or order.'

Exhibit 2. A note executed by Otis C. and Wilda Rider for $3,000 payable 'to the order of Gus Longacre and/or Joe N. Longacre, or assigns.'

Exhibit 3. A note executed by Donald and Evelyn Irwin for $1,470 payable 'to the order of Gus Longacre or Joe N. Longacre.'

Exhibit 4. A note executed by Leonard H. and Wilma N. Bogart for $4,000 payable 'to the order of Gus Longacre and/or Joe N. Longacre, or survivor.'

Exhibit 5. A note executed by C. E. and Helen A. Cavanaugh for $2,600 payable 'to the order of Gus or Joe N. Longacre on demand.'

Exhibit 6. A note executed by R. C. and Mrs. R. C. Banes for $1,900 payable 'to the order of Gus Longacre or J. N. Longacre.'

Exhibit 7. A note executed by Carl and Lois Neas for $1,500 payable 'to the order of Gus Longacre or Joe Longacre.'

Exhibit 8. A note executed by H. N. Comstock, Jess M. Banes and Nona Mae Comstock for $2,250 payable 'to the order of Gus Longacre and/or Joe N. Longacre, as joint tenants with right of survivorship and owners of this security.'

Exhibit 9. A note executed by Jack D., R. Vinona and Jess M. Banes for $1,400 payable to 'Gus Longacre or J. N. Longacre or order.'

Exhibits 10 and 11. Two corporate bonds, each in the amount of $500, issued by Lipscomb Grain & Seed Company, registered in the names of 'Mr. Gus Longacre or James O. Longacre.'

Exhibits 12 and 13. Two corporate bonds, each in the amount of $500, issued by Lipscomb Grain & Seed Company, registered in the names of 'Mr. Gus Longacre or Roxie L. Marlow.'

All the interest of James O. Longacre and Roxie L. Marlowe has been assigned to appellant. Since the death of Gus Longacre some of the notes have been paid and the funds, by agreement, are being held in escrow pending this appeal. Partial payments were made on some notes but not in sufficient amounts to affect the jurisdiction of this court.

Plaintiff's contention is that Gus Longacre and the other person named as payee or owner were joint owners of the notes or bonds with the right of survivorship, and that at the death of Gus Longacre the person named as copayee or co-owner became the sole owner.

Although the term 'joint tenancy' properly refers to an interest in land, it frequently is used in reference to personal property, and it is recognized in Missouri that any personal property subject to being possessed in severalty is subject to joint ownership. Johnston v. Johnston, 173 Mo. 91, 73 S. W. 202, 61 L.R.A. 166, 96 Am.St.Rep. 486. An estate in joint tenancy is one held by two or more persons jointly with equal rights to share in its enjoyment during their lives and having the right of survivorship. 14 Am.Jur. Cotenancy, Sec. 6. 'A joint tenancy is based on the theory that together the joint tenants have but one estate; they hold per my et per tout--by the moiety or half and by the whole.' In re Gerling's Estate, Mo.Sup., 303 S.W.2d 915, 917. It has frequently been held that to create a joint tenancy the tenants or owners must have one and the same interest (unity of interest); the interests must accrue by one and the same conveyance (unity of title); they must commence at one and the same time (unity of time); and the property must be held by one and the same undivided possession (unity of possession). 14 Am.Jur. Cotenancy, Sec. 7; 48 C.J.S. Joint Tenancy Sec. 3c; Feltz v. Pavlik, Mo.App., 257 S.W.2d 214. The intention of the parties is the principal controlling factor whether or not a joint tenancy or joint ownership is created. 48 C.J.S. Joint Tenancy Sec. 3d.

Generally, in the absence of a statute pertaining to the matter (see Section 363.470 RSMo 1949, V.A.M.S., pertaining to bank deposits and Section 442.450 pertaining to the grant or devise of realty) in order for a joint tenancy to be created the intent to do so must clearly be expressed by appropriate language understandingly used. McElroy v. Fluker, Mo.Sup., 265 S.W.2d 361. Where the instrument is silent or ambiguous as to the nature of the estate or interest created, as a rule it will not be construed to create a joint tenancy. 48 C.J.S. Joint Tenancy Sec. 3d, p. 918. We shall first consider whether a joint ownership was created in those notes and bonds where the payees or owners were named in the alternative.

'In most of the cases in which the question has arisen it has been held that no joint tenancy, with right of survivorship, was created by a note or certificate of deposit providing for payment in the alternative to two or more payees.' Annotation, 171 A.L.R. at page 528. See also the cases there cited and Knox v. Maher, 261 Ill.App. 159, and Newitt v. Dawe, 61 Nev. 472, 133 P.2d 918, 144 A.L.R. 1462. This result is necessarily and properly reached because the language used does not indicate an intent to create a unity of interest, but on the contrary it indicates an intent that the interest of one is to be to the exclusion of the other, and there is not an equal right in both to share in the enjoyment of the property. See Reese v. First National Bank of Bellville, Tex.Civ.App., 196 S.W.2d 48, 171 A.L.R. 516. As stated in Hemphill v. Jackson, Mo.App., 306 S.W.2d 610, 615, "The word 'or' is disjunctive in its very nature, and is incompatible with tenancy in common [or joint tenancy] because it infers one or the other, but not both."

The above result is also required in the situation where the note (exhibit 2) was made payable to 'Gus Longacre and/or Joe N. Longacre, or assigns.' The use of the phrase 'and/or' is confusing and conflicting, 'But the commonly accepted meaning * * * is 'Either and or or." Coplen v. Zimmerman, Mo.Sup., 271 S.W.2d 513, 515. As here used the term necessarily results in the declaration of the intention that Gus Longacre should retain the choice of maintaining his ownership of the note to the exclusion of his nephew if he so desired, and as subsequently shown the evidence discloses that he did so.

Plaintiff contends that the words used are ambiguous and we can look to the surrounding circumstances and, notwithstanding the language used, determine that Gus Longacre really intended to create a joint tenancy with right of survivorship in the copayees and co-owners. See Hemphill v. Jackson, supra.

At least one maker of each note which was made payable in the alternative testified except the makers of the note identified as exhibit number 9. The substance of the testimony in each case was that Gus Longacre told the makers that he was including Joseph Longacre as a copayee so that if anything happened to him the note would then be the property of Joseph Longacre, but that the makers understood that the note was to belong to Gus Longacre during his lifetime and they were to make all payments of interest and principal to him. The four bonds were issued by the Lipscomb Grain & Seed Company. Mr. Lipscomb testified that Gus Longacre first had the bonds issued to him alone, but that three days later he 'said he wanted to make two of those bonds to James O. Longacre--Gus Longacre or James O. Longacre and two of them to Roxie L. Marlowe--Gus Longacre or Roxie L. Marlowe.' Mr. Lipscomb then wrote with pen and ink following the typed name of Gus Longacre the words 'or James O. Longacre' on two bonds, and 'or Roxie L. Marlowe' on the other two bonds. Mr. Lipscomb testified that it was his 'understanding' that the bonds 'were Gus Longacre's until he died,' and 'then they would go to James O. Longacre and Roxie Marlowe--that's what he told me. * * * They couldn't get them until he died the way I understood it...