Melinik v. Meier, 24862.
| Decision Date | 07 February 1939 |
| Docket Number | No. 24862.,24862. |
| Citation | 124 S.W.2d 594 |
| Parties | MELINIK v. MEIER. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.
"Not to be published in State Reports."
Suit in equity by Michael Melinik against Karl Meier for alleged fraud of defendant in converting a certain bank account to his own use. From a judgment for defendant, plaintiff appeals.
Affirmed.
George W. Funke, of St. Louis, for appellant.
J. E. Swanston, Anderson & Whittington, and George F. Johnson, all of St. Louis, for respondent.
Appellant states that this is a suit in equity based upon the alleged fraud of the defendant in "converting a certain bank account to his own use and thereby depriving the widower of his absolute estate of his widow upon her death." Upon trial the court entered judgment for defendant and dismissed plaintiff's bill, whereupon plaintiff in due course appealed.
It appears that plaintiff is the widower of Josefa Melinik, deceased; that they were married in 1897, at which time Josefa was a widow with one child, a son about six months old born of a previous marriage. The Meliniks in turn had two children born of their marriage, a boy and a girl. Mrs. Melinik died November 5, 1927.
On November 25, 1927, the Probate Court of the City of St. Louis entered refusal of letters of administration on the estate of Josefa Melinik, deceased, whereby Michael Melinik, plaintiff below, as her widower, was authorized to collect, sue for, and retain the property of the deceased's estate as his absolute property. It is of interest to note that Melinik and his wife owned the house in which they lived as an estate by the entirety.
There is no controversy but that on July 8, 1921, Josefa Melinik had opened an account in her own name with the Lafayette-South Side Bank in St. Louis, and that on October 8, 1921, the account was changed to a joint account in the name of Josefa Melinik and Karl Meier, her son by a previous marriage, payable to either or the survivor of them; and that the amount on deposit at the time the change was made was $562.25. The account was continued as a joint account until the death of Mrs. Melinik on November 5, 1927, during which period of time there were additional deposits as well as withdrawals from the account, and on the date of her death the balance amounting to $788.13 was withdrawn by Karl Meier, the survivor of the joint account, and divided equally between himself and his half brother and half sister.
Plaintiff learned, after the death of his wife, that she had a joint account with her son Karl Meier, and he filed this suit for $788.13, the amount which was on deposit in the joint account at the date of his wife's death, and which had been withdrawn by Karl Meier, alleging that the money was the sole property of Josefa Melinik, deceased, and that the sums deposited in the bank during her lifetime in the joint names of herself and defendant were so deposited "for the purpose of cheating and defrauding plaintiff of his interest (absolute property) as the husband of the said Josefa Melinik deceased, and that said Karl Meier, defendant, while being mentioned as a joint owner of said account, in truth and in fact was merely the trustee of the said account for the benefit of the estate of said Josefa Melinik, deceased; that said Karl Meier well knew that the said bank account was the property of the estate of said Josefa Melinik, deceased, but that in total disregard of said trust and his duty to account to said estate for said bank account, and more particularly to this plaintiff for his absolute property * * * in pursuance of a scheme to cheat and defraud this plaintiff of his absolute property has failed and refused to pay the said sum * * * to this plaintiff."
The prayer of plaintiff's petition was for a decree "that the defendant hold the account in trust for the benefit of the estate of Josefa Melinik, and that plaintiff is entitled to the proceeds from said account as his absolute property, together with interest thereon from the date of the withdrawal by defendant of the fund from the bank." The answer was a general denial.
Plaintiff's own testimony was to the effect that he had no knowledge of the joint savings account in the Lafayette-South Side Bank in the names of his wife and defendant until after his wife had died, whereupon he filed this suit.
Karl Meier, the defendant, testified that at the time his mother married plaintiff in 1897, he was less than a year old, and that he had lived in the home of his mother and stepfather until he himself married in 1924; that all moneys which he had earned up to the time he was twenty-one years of age he had given to his mother; that on October 8, 1921, his mother's account at the Lafayette-South Side Bank was changed to a joint account in his mother's and his own name, and that from that time on until her death he, as well as his brother and sister, continued to give to their mother money to be deposited in that account.
On cross-examination defendant stated that while he could not state the amounts which he had given his mother to deposit in the account, he did testify that the amounts varied "sometimes five, ten or fifteen dollars."
During defendant's cross-examination questions and answers were read from his deposition which had been taken prior to the trial of the case, which defendant admitted were correct. In his deposition, in answer to the question whether he knew where his mother got the money that was deposited in the joint account, he answered, "That money was coming to us children and no one else through work. She never had anything else excepting through our work, and I deposited money myself and gave it to my mother to deposit, and so did my sister and brother.
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