McGee v. St. Francois County Sav. and Loan Ass'n, 60314

• Decision Date: 19 December 1977
• Docket Number: No. 60314,60314
• Citation: 559 S.W.2d 184
• Parties: Vernell McGEE, Respondent, v. ST. FRANCOIS COUNTY SAVINGS AND LOAN ASSOCIATION et al., Appellants.
• Court: Missouri Supreme Court

Page 184

559 S.W.2d 184

Vernell McGEE, Respondent, v. ST. FRANCOIS COUNTY SAVINGS AND LOAN ASSOCIATION et al., Appellants.

No. 60314.

Supreme Court of Missouri, En Banc.

Dec. 19, 1977.

Geoffrey L. Pratte, Farmington, for appellants.

Eric C. Harris, Flat River, for respondent.

FINCH, Judge.

This is an appeal by defendants from a judgment which determined that plaintiff as surviving joint tenant was the owner of two savings certificates issued by the St. Francois Savings and Loan Association (hereinafter S & L). The Court of Appeals, St. Louis District, reversed and remanded with directions to enter judgment that the certificates were the property of the estate of Walter McGee. One of the participating judges concluded that the majority opinion is contrary to the decision of this court in the case of In re Estate of LaGarce, 487 S.W.2d 493 (Mo. banc 1972), and requested transfer of the case to this court pursuant to Mo.Const., art. V, § 10. We now decide it as though here on direct appeal. We reverse and remand with directions.

The facts are undisputed because the case was tried on a stipulation of facts. Prior to February 11, 1974, Walter McGee owned certificate No. 207 for $2,000 issued by S & L. It had been issued originally in the names of Walter McGee and his wife. At her death in September 1973, S & L, at McGee's request, simply lined through her name so that the certificate stood in the name of Walter McGee, the surviving spouse. Walter McGee also owned a savings certificate for $18,000 which was renewable on February 11, 1974. On that date McGee presented that certificate and received a renewal certificate, No. 964, which listed him as sole owner.

Sometime later during the day on February 11, 1974, Walter McGee brought certificates 207 and 964 to S & L and requested that the name of Vernell McGee, his nephew, be added as joint tenant with right of survivorship. Pursuant to that request the officers and agents of S & L added "Vernell McGee 2/11/74" to certificate No. 207 and stamped thereon the words "as joint tenants with right of survivorship and not as tenants in common." In addition, "Vernell McGee" was added to S & L's account card and a new signature card was signed by both Walter and Vernell McGee. On certificate No. 964 they added "and Bernell McGee" ¹ and stamped the words "as joint tenants with right of survivorship and not as tenants in common." At the same time the words "and Vernell McGee" and "as joint tenants with right of survivorship and not as tenants in common" were added to S & L's account card and both Walter McGee and Vernell McGee signed a new signature card.

On March 7, 1974, Walter McGee again appeared at S & L with the two certificates. He requested that both be changed to his name only. In response, the officers and agents of S & L, in the case of the savings account represented by certificate No. 964, lined through the words "and Bernell McGee" on the certificate and added figures "3/7/74." On the signature card for this account, S & L lined through the name and signature of Vernell McGee and added the figures "3/7/74." On the account card, S & L lined through the name "Vernell McGee" and the words "as joint tenants with right of survivorship and not as tenants in common" and added the figures "3/7/74." In response to the request concerning the account represented by certificate No. 207, the officers and agents of S & L lined through the words "Vernell McGee 2/11/74" on the certificate. The name and signature of Vernell McGee likewise was stricken from the signature card and the figures "3/7/74" added thereto. Vernell McGee's name also was lined through on the account card.

Walter McGee died on June 28, 1974. At the time of his death the two savings certificates were in his safety deposit box. Vernell McGee was appointed executor of his estate and on August 2, 1974, at the suggestion of the attorney for the estate, he cashed in certificate No. 207 and applied the proceeds on the funeral bill. Thereafter, he made a claim against the estate, asserting that certificate No. 207 was his personal property as surviving joint tenant and that he should receive the proceeds thereof.

After numerous demands on S & L to pay him on certificate No. 964, plaintiff brought this suit against S & L and against the Walter McGee estate, seeking a determination that he owned both certificates and was entitled to recover thereon. The probate claim on certificate No. 207 was consolidated with this action. The trial court held that the actions of Walter McGee and the officers and agents of S & L on February 11, 1974, established a statutory joint tenancy with right of survivorship in both savings certificates but that the action of Walter McGee and the officers and agents of S & L on March 7, 1974, did not have the legal effect of destroying the joint tenancies in the two certificates theretofore created on February 11, 1974. Accordingly, the trial court held that the joint tenancy continued until the death of Walter McGee and that plaintiff then became the owner of the certificates as surviving joint tenant.

This is a court tried case. Our review is pursuant to Rule 73.01, V.A.M.R., as interpreted in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We are to uphold the judgment unless there is no substantial evidence to support it or it is against the weight of the evidence or its erroneously declares or applies the law. In this case the facts were stipulated and the trial court found the facts in accordance with that stipulation. We accept those findings and do not disturb the judgment on an evidentiary basis. We do conclude, however, that in holding that the actions of Walter McGee and the officers and agents of S & L on March 7, 1974, did not have the effect of terminating the joint tenancy in certificates 207 and 964, the trial court erroneously declared and applied the law.

The single issue to be resolved is whether what Walter McGee and personnel of S & L did on March 7, 1974, had the legal effect of terminating the joint tenancy and transferring the two accounts to Walter McGee. Plaintiff argues that under LaGarce, supra, it did not. LaGarce dealt with a situation wherein August LaGarce owned a savings certificate which he had transferred by the savings and loan association to the names of August LaGarce, James Mouldon and Leona Mouldon as joint tenants with right of survivorship and not as tenants in common. After the revised certificate was handed to him by an employee of the association, LaGarce handed it to the Mouldons. There was conversation to the effect that if LaGarce later wanted the certificate back, he could get it. Subsequently, LaGarce and his wife, who had been separated, were reconciled and he requested that the Mouldons return the certificate in order that it could be changed and placed in the names of LaGarce and his wife. However, the Mouldons did not turn over the certificate and LaGarce died while it was still in the possession of the Mouldon's attorney.

In a proceeding to discover assets, the executrix of the estate of August LaGarce sought to recover the funds in the savings account. Her primary contention was that under existing decisions the revised certificate did not create a valid joint tenancy because LaGarce intended only to make a testamentary disposition, not surrender control at that time, and that this did not constitute a valid inter vivos gift. This court held that a joint account with right of survivorship had been created pursuant to § 369.150, RSMo 1969. ² Overruling earlier cases which, in spite of the provisions of § 369.150, had held that a joint tenancy was not created if the intent was primarily to arrange a disposition at death, the court held, 487 S.W.2d at 500, that if a certificate is issued in the statutory form it creates a statutory joint tenancy which must be recognized and given effect without applying common law concepts to determine whether a valid joint tenancy has been created.

In LaGarce the executrix also contended that even if the savings account had been converted to a joint account by means of the addition of the names of the Mouldons to the certificate and the...