Melton v. Ensley

• Decision Date: 10 October 1967
• Docket Number: No. 8681,8681
• Citation: 421 S.W.2d 44
• Court: Missouri Court of Appeals
• Parties: Lenora B. MELTON, Administratrix of the Estate of Leonel Elmo Melton, Deceased, Plaintiff-Respondent, v. Oba ENSLEY, Defendant-Appellant, and Joplin Federal Savings & Loan Association, a corporation, and Security National Bank of Joplin, Missouri, Defendants.

Page 44

421 S.W.2d 44

Lenora B. MELTON, Administratrix of the Estate of Leonel Elmo Melton, Deceased, Plaintiff-Respondent, v. Oba ENSLEY, Defendant-Appellant and Joplin Federal Savings & Loan Association, a corporation and Security National Bank of Joplin, Missouri, Defendants.

No. 8681.

Springfield Court of Appeals, Missouri.

Oct. 10, 1967.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 2, 1967.

Application to Transfer Denied Dec. 11, 1967.

Warten, Wells & Burden, Henry Warten, Joplin, for defendant-appellant.

Dean S. Johnston, Joplin, for defendant-appellant.

Roberts & Fleischaker, Loyd Roberts, Joplin, for defendant, Joplin Federal Savings & Loan Assn.

Charles Tudor, Joplin, for defendant, Security National Bank of Joplin, Missouri.

TITUS, Judge.

L. Elmo Melton died July 20, 1966, and his sister, Lenora B. Melton, as administratrix of the estate, instituted this declaratory judgment suit in the Circuit Court of Jasper County seeking to have the estate declared owner of a checking account, two certificates of deposit and two savings accounts. Each certificate and account was payable to decedent and Oba T. Ensley in the particular fashion we shall see anon. For brevity we frequently hereafter refer to Mr. Melton and Mrs. Ensley as Elmo and Oba. Answering the petition, Oba asseverated she and Elmo were joint owners with incident of survivorship of each account and certificate and that she became the sole owner of each upon his death. Defendants Joplin Federal Savings and Loan Association and Security National Bank, both of Joplin, Missouri, disavowed individual interest in the accounts and certificates and answered willingness to pay their obligations as determined by the court. One savings account in dispute was with the Miami Savings and Loan Association, Miami, Oklahoma, which did not appear and was not subject to the jurisdiction of the Missouri court. Following trial without jury aid, the circuit court adjudged the estate to be the owner of the certificates and accounts, and ordered each institution, including the Oklahoma association, to pay its account or certificate to the estate. When her after-trial motions were denied, Oba appealed. The aggregate value of the certificates and accounts is the amount in dispute on appeal. This is less than $15,000 and we have appellate jurisdiction. V.A.M.S.Const. art. V, §§ 3 and 13; V.A.M.S. § 477.040. In this instance we review the case on both the law and the evidence and reach our own judgment without regard to the rulings or reasoning of the trial court. V.A.M.R. 73.01(d); V.A.M.S. § 510.310, subd. 4; Edwards v. Durham, Mo., 346 S.W.2d 90, 100(7); Masterson v. Plummer, Mo.App., 343 S.W.2d 352, 354(1); Giraldin Bros. Real Estate Company v. Stiansen, Mo.App., 315 S.W.2d 636, 640(1).

Elmo was fifty-three years of age when he died and had remained unmarried following a 1947 divorce. His twenty year old adopted son, parents and two sisters reside in Joplin. In 1947 Elmo was a partner in the Wagoner Mattress Factory located near the Royal Drug Store in Joplin. Exactly when we do not know, Elmo became estranged from his parents and sisters, sold his interest in the factory to his sister, Lenora, and moved to near Neosho, Missouri, some sixteen or eighteen miles south of Joplin. He there established another mattress factory and lived alone in the building that also served as his place of business. The son resided with the grandparents. Lenora and Elmo had not been on speaking terms for six years prior to his death. While Elmo conversed with his parents, it generally was by telephone regarding untoward conduct of his son. If the matter required personal attention, Elmo went to his parents' home but 'stayed outside' the house during these meetings. There was no ill feeling between Elmo and his son. Excluding the disputed accounts and certificates, the inventory filed with the probate court showed Elmo at the time of his death, to be possessed of personal property valued at $17,426.45 and real estate appraised at $6,000, all of which would descend absolutely to his son. V.A.M.S. § 474.010(2)(a).

When Oba's marriage terminated by divorce in 1949, she was employed as a saleslady by the Royal Drug Store and is still so engaged. Oba, who was from July to December older than Elmo, resides in Joplin with her mother and father, respectively seventy-five and seventy-six years of age at time of trial. The Meltons became acquainted with Oba when they frequented the drug store as customers and about 1955 or 1956 Elmo and Oba started 'dating' occasionally. The 'dates' increased in frequency as time passed and for several years before Elmo died their association had become almost a daily occurrence. At one time the couple discussed becoming engaged to marry, 'but we had both been divorced and so we decided to stay friends.' Oba was a member and regularly attended church twice on Sundays and each Wednesday night. Elmo accompanied Oba to church, 'enjoyed it very much,' and became a member in 1958 or 1959. For sometime before his death, Elmo was teacher of a 'teenage' Sunday school class. In late 1964 and early 1965 while being treated for pneumonia, Elmo was advised concerning a heart condition of which he never complained. He was instructed to lose weight and 'watch his cholesterol count * * * For the last two years most of the time' Elmo ate meals at Oba's home prepared by her mother 'because * * * he couldn't go out and eat and get the food that the doctor told him to eat.' Elmo gave Oba gifts, but none in cash, and at one time was the principal contributor, along with Oba, in the purchase of a dishwasher for Oba's mother.

Elmo and his father, with Elmo paying the assessments, belonged to the 'Masonic Widow's Fund' until 1958 when Elmo asked both he and his father be suspended. In August 1964 Elmo requested reinstatement for himself but not for his father. The secretary of the fund testified that in the process of reinstating Elmo, 'I asked him who he would have as his beneficiary and he said 'Mrs. Oba Ensley' * * * and he said 'No relation, just a friend' * * * and he stood there for a little bit and he says 'I don't what them to have anything I have.''

Any incompetency of Oba to testify in this cause because of 'the deadman's statute,' V.A.M.S. § 491.010, was waived when the plaintiff administratrix took her deposition. Edwards v. Durham, supra, 346 S.W.2d at 97; Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875, 880(7).

TRANSACTIONS AT THE SECURITY NATIONAL BANK

A twelve-month time certificate of deposit in the sum of $1,000 was issued November 16, 1964, by the bank payable to 'L. Elmo Melton or Oba T. Ensley.' The certificate, bearing four per cent interest, was automatically renewable. Elmo gave Oba the money for the certificate and asked her to take it to the bank. Oba delivered the funds to a bank employee, Sally Harrington, who prepared the certificate in the manner she had been instructed in a telephone conversation with Elmo. Sally answered 'yes, sir' to the inquiry if she had been 'instructed to issue the same as a joint account in those names with right of survivorship.' Fifty-one dollars accrued interest on the certificate was subsequently paid to Elmo in cash. The certificate was exchanged for a $1,000 certificate bearing 5 1/2 per cent interest dated June 24, 1966, and made payable to 'L. Elmo Melton or Oba T. Ensley.'

A savings account in the name of 'L. Elmo Melton or Oba T. Ensley' was opened at the bank May 4, 1965, and closed by a $1,023.49 withdrawal authorization dated February 14, 1966, signed by Elmo. The vice-president and cashier of the bank, James R. Sanders, said this withdrawal 'was applied to a C.D. (certificate of deposit) with additional money.' The certificate, dated February 16, 1966, was in the sum of $2,074.79 and payable to 'L. Elmo Melton or Oba T. Ensley.' (Dehors the record, we note the amount of the certificate equals the sum withdrawn from the savings account, the $51 interest paid Elmo on the first certificate, and $1,000.) Mr. Sanders testified Elmo 'specifically asked that we make it out in his name or Mrs. Ensley,' and the form used by the bank when requested to establish joint tenancies with right of survivorship in certificates of deposits, in savings accounts and checking accounts was 'just with the word 'or' placed between the names.' Prior to the times in question, the cashier related, 'some of our girls' were putting 'and/or between the signature and we did tell them to cut out the 'and' and the 'slash bar' and just put the word 'or' in, which gives the same meaning * * *'

Both of the certificates in force when Elmo died had been given to Oba by Elmo with the explanation they were 'a joint account' and were in her possession at all times. Elmo had instructed the cashier at the bank 'that any mail or any matter that would be mailed out, go to Mrs. Ensley on the C.D.'s.' After Elmo's death, the certificates were cancelled and replaced by two others in the respective amounts of $1,000 and $2,121.17 payable to 'Oba T. Ensley or Donald C. Ensley,' the latter being a son of Oba. Mrs. Ensley recounted she was assured by bank officials that in having the certificates issued 'in the form shown, 'Oba T. Ensley or Donald C. Ensley' (she was) establishing and having issued * * * a time certificate of deposit in joint tenancy with right of survivorship.'

The bank checking account was established May 5, 1965, in the names of 'L. Elmo Melton or Oba T. Ensley,' and had a $329.50 balance on the day Elmo died. Oba testified: 'Elmo asked me to go down and open the account and he gave me the money to open it with. It was to be set up as a house fund account' so Elmo's tenants could deposit the rent payment in it. 'It was easier' for the tenants to pay the rent into the account than to deliver it personally to Elmo. The rental property was located in Joplin and Elmo made the house mortgage payments from the...