Miss. Valley Trust Co. v. Smith

• Decision Date: 30 July 1928
• Docket Number: No. 26728.,26728.
• Citation: 9 S.W.2d 58
• Parties: MISSISSIPPI VALLEY TRUST COMPANY v. SIDNEY S. SMITH and OTTO A. HAMPE. Administrator of Estate of CAROLINE B. FRANK, Interpleaders: OTTO A. HAMPE, Appellant.
• Court: Missouri Supreme Court

9 S.W.2d 58

MISSISSIPPI VALLEY TRUST COMPANY v. SIDNEY S. SMITH and OTTO A. HAMPE. Administrator of Estate of CAROLINE B. FRANK, Interpleaders: OTTO A. HAMPE, Appellant.

No. 26728.

Supreme Court of Missouri. Division One.

July 30, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Claude O. Pearcy, Judge.

AFFIRMED.

Foristel, Mudd, Blair & Habenicht, August M. Brinkman, Glen Mohler and Harry S. Rooks for appellant.

(1) The burden of proof was on defendant Smith to prove that Mrs. Frank intended to give him a joint tenancy or equal ownership of the account. 48 A.L.R. 191, annotation: L.R.A. 1917C, 553, annotation; Harris Banking Co. v. Miller, 190 Mo. 640. (2) Smith's burden of proof was not sustained by merely showing that Mrs. Frank signed the card reading, "I desire the name of S.S. Smith to appear on" the pass book, "making the account payable to either or the survivor," and that the name was added and pass book stamped accordingly. 48 A.L.R. 191, annotation: L.R.A. 1917C, 553, annotation. (3) The evidence showed that defendant Smith was Mrs. Frank's agent and acted in a confidential or fiduciary capacity, and that she was aged and infirm, with impaired eyesight; hence the burden of proof was upon Smith to show that she understood the nature and effect of the card she signed, that he acted in good faith, that there was no deception or undue influence, and that she intended to make him a joint tenant or equal owner of the fund. Kincer v. Kincer, 246 Mo. 419; Steffen v. Stahl, 273 S.W. 118; Martin v. Baker, 135 Mo. 495. And this rule is especially applicable as to those facts peculiarly within the knowledge of defendant Smith. Swinport v. Railroad Co., 207 Mo. 423; Schneider v. Maney, 242 Mo. 36. (4) The statute relating to deposits in two names (R.S. 1919, sec. 11840) was enacted in 1915 (Laws 1915, p. 190) and is not applicable to this case, wherein the contract or transfer, if there was any, was in 1912. The statute is not retroactive. Mo. Constitution, Art. 12, sec. 19; Art. 2, sec. 15. To hold it applicable to prior accounts would impair the obligation of contracts in violation of United States Constitution, Art. 1, sec. 10, and Missouri Constitution. Art. 2, sec. 15. (5) Since Mrs. Frank kept possession of the pass book and the presentation thereof was necessary under the bank regulations to make withdrawals from the account, there is not sufficient evidence of a gift to defendant Smith and delivery in consummation thereof. Martin v. First Nat. Bank. 206 Mo. App. 629; Harris Banking Co. v. Miller, 190 Mo. 640. (6) To establish a gift inter vivos the evidence must be clear, unequivocal and convincing, and the evidence in this case does not satisfy that requirement. Martin v. First Nat. Bank, 206 Mo. App. 629; Hunter v. Wabash Railroad, 149 Mo. App. 243. (7) If the transaction is claimed to be a contract (as to which Smith's interplea may be indefinite) and not a gift inter vivos, then no consideration is alleged, proved or even attempted to be proved, and the evidence shows there was none. (8) Under the circumstances shown by the evidence (gift of $3500 to one in confidential relation. etc.) the transaction is presumptively void, especially absent any showing that decedent had independent advice. Steffen v. Stahl. 273 S.W. 118; Kincer v. Kincer, 246 Mo. 437; Cadwallader v. West. 48 Mo. 483; Martin v. Baker. 135 Mo. 495. (9) This is an equity proceeding, triable de novo on appeal, where the appellate court may dispose of it as justice requires. Harris Banking Co. v. Miller, 190 Mo. 672.

S. Mayner Wallace for respondent Smith.

(1) The record satisfies the burden of proof that rested upon the respondent, Smith. (2) However, the facts do not warrant the applying of such a burden of proof in this case. (3) The joint-account transaction of 1912, between and among Mrs. Frank and Mr. Smith and the Trust Company, had the legal effect of conveying to Smith a joint interest in said account at that time: and also of constituting Mrs. Frank and Mr. Smith joint owners of all moneys then and thereafter deposited therein with the right of survivorship in the one of them who survived the other. 7 C.J. 640; 3 R.C.L. 527. (4) Further, the statute provides independent support for the decree of the trial court. R.S. 1919, sec. 11840. There was no suggestion in the motion for a new trial or elsewhere below that said statute did not operate upon this case. In virtue of said statute, the survivor succeeds (merely by reason of the form of such joint-account) to the entire ownership. Ball v. Trust Co., 297 S.W. 415. The Ball case also ruled that said statute gives to the mere opening of a joint account "a presumption of an intent to make an immediate gift." In 48 A.L.R. 195, some apt New York cases (from which State our statute was adopted; 297 S.W. 417) are cited to the proposition that: "In so far as such statute announces a rule of evidence, it applies to deposits made before, as well as after, its enactment." (5) Independently of said statute (which, however, seems to be only "a continuation." see Sec. 11844, of the prior law upon the subject in Missouri), and even if none of respondent's moneys had gone into the account and even if Mrs. Frank had always retained exclusive possession of the pass book, the decree below was right. Commonwealth Trust Co. v. Du Mortimer, 193 Mo. App. 290. The said account, from 1912 to 1924, has in it no element of any gift even if, in 1912, there had been such an element. (6) The Public Administrator's interplea failed entirely to state any cause or right of action whatever. There is no allegation of any property right in him or in the deceased, Mrs. Frank. "It was incumbent upon appellant, therefore, to have alleged in its interplea every fact necessary to support its claim of title." Grafeman Dairy Co. v. Mercantile Club. 241 S.W. 929. The motion for judgment, filed by Mr. Smith on October 27, 1924, and again on the day of the trial, should have been sustained. (7) The Public Administrator conceded the allegations of Mr. Smith's interplea by failing to place same in issue; and the latter's motion for judgment, filed at the trial, was also sustainable upon that ground.

SEDDON, C.

Plaintiff, a domestic and incorporated trust company, engaged in the banking and trust business in the city of St. Louis, on October 10, 1924, commenced this action in the circuit court of said city by filing therein a petition praying that summons be issued to defendants, Sidney S. Smith and Otto A. Hampe, administrator of the estate of Caroline B.L. Frank, deceased, under appointment of the probate court of said city, requiring said defendants to interplead therein for the purpose of establishing and determining which of said two defendants is the lawful owner of, and legally entitled to, a fund of $17,550.32, held on deposit in the savings department of plaintiff Trust Company, and afterwards deposited by plaintiff in the registry of said circuit court, subject to the order and judgment of said court. The substantive allegations of plaintiff's petition are as follows:

"That on and prior to the 26th day of August, 1924, there was on deposit in the savings department of the plaintiff, at its banking house in the city of St. Louis, the sum of seventeen thousand, five hundred, fifty dollars and thirty-two cents ($17,550.32), standing in the name of `S.S. Smith and or Mrs. Caroline B.L. Frank, either or survivor to draw:' that said S.S. Smith is the defendant Sidney S. Smith herein: that under and by virtue of the terms of said deposit it was expressly understood and agreed between said depositors and plaintiff that no part of said deposit should be paid except upon production to the plaintiff of the pass book issued to the depositors by the plaintiff evidencing such deposit, and that upon the final closing of said account and payment of said deposit said pass book should first be delivered and surrendered to the plaintiff for cancellation, in accordance with the laws of the State of Missouri.

"That on or about said 26th day of August, 1924, the said Mrs. Caroline B.L. Frank departed this life at the city of St. Louis, Missouri, intestate, as this plaintiff is informed and believes, and that thereafter, on or about the 27th day of August, 1924, the defendant Otto A. Hampe, as the duly elected, qualified and acting Public Administrator of the City of St. Louis, Missouri, did, pursuant to the statutes of the State of Missouri, open administration upon the estate of said decedent in the probate court of said city, and did duly qualify as such administrator of said estate in said court, and is and was at all times hereinafter mentioned acting as administrator in charge of said estate.

"That at the time of the death of said Mrs. Caroline B.L. Frank she was in possession of the aforesaid pass book, and that at all times since her death the defendant Otto A. Hampe, as such administrator, in charge of her estate, has been and is now in possession of said pass book.

"That subsequent to the death of said Mrs. Caroline B.L. Frank, said Sidney S. Smith, without the production of said pass book, or tender thereof, or accounting therefor, has called upon this plaintiff to pay to him the aforesaid balance of said deposit, but that prior to such demand said Public Administrator. Otto A. Hampe, so in charge of the estate of said deceased, delivered to the plaintiff notice in writing, on behalf of the estate of said decedent, not to pay such deposit, or any part thereof, to said defendant Sidney S. Smith, and thereby claimed the whole of said deposit as the property of the estate of said decedent, and demanded payment thereof to him as such Public Administrator in charge of said estate.

"That by reason of the premises, and of the said demands of the defendants upon this plaintiff for the payment of said balance, this plaintiff is threatened with litigation, in that each of said defendants claiming said fund...