Murphy v. Wolfe

• Decision Date: 06 February 1932
• Docket Number: 31004
• Citation: 45 S.W.2d 1079,329 Mo. 545
• Parties: James Murphy, Appellant, v. George N. Wolfe
• Court: Missouri Supreme Court

45 S.W.2d 1079

329 Mo. 545

James Murphy, Appellant, v. George N. Wolfe

No. 31004

Supreme Court of Missouri

February 6, 1932

Appeal from Osage Circuit Court; Hon. Ransom A. Breuer Judge.

Affirmed.

George J. Gove and Jacobs & Henderson for appellant.

(1) The statute, Sec. 7328, R. S. 1919, is explicit that the certificate of deposit in the Morrison bank shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care or protection thereof, but the same shall remain her separate property, unless, by the terms of said assent in writing, full authority shall have been given by the wife to the husband to sell, incumber or otherwise dispose of the same for his own use and benefit. Rodgers v. Bank, 69 Mo. 563; McCoy v. Hyatt, 80 Mo 136; Broughton v. Brand, 94 Mo. 173; Gilliland v. Gilliland, 96 Mo. 524; Reifer v. Reifer, 79 Mo. 352; Watson v. Smelting & Refining Co., 8 Mo.App. 604. (2) There is no evidence that Bridget Wolfe by gift or transfer, in writing, transferred and delivered to her husband, Geo. N. Wolfe, the time certificates on the Bank of Morrison or the Peoples Bank of Chamois, as set out in Sec. 7328, R. S. 1919. Kille v. Gooch, 184 S.W 1158; Haguewood v. Britain, 273 Mo. 89. (3) To constitute a valid gift inter vivos, there must be not only an intention to give, but a delivery to the donee or to some one for her of the property given; and in order to constitute delivery the donor must absolutely divest herself with the present and future dominion and control over the property. Harris Banking Co. v. Miller, 190 Mo. 640. (4) G. N. Wolfe, being the husband of Bridget Wolfe and being in possession of the money and property belonging to his wife, became the trustee for her, unless transferred to him in writing to be his absolute property. Harris Banking Co. v. Miller, 190 Mo. 640. (5) The object of the statutes was to secure to married women the title to their property against the rights of their husbands to deprive the wife of her property. Long v. Maxtin, 152 Mo. 668; Urman v. Carroll, 83 Mo.App. 135. A married woman's right to control her separate property and is not dependent upon her being with her husband. Woodward v. Woodward, 148 Mo. 241. The main idea of the lawmakers was to secure to the wife the full enjoyment of her separate personal property, as against the common law claims of her husband. Beagles v. Beagles, 95 Mo.App. 345; Edgers v. Edgers, 225 Mo. 140; Hurt v. Cook, 151 Mo. 416. (6) The husband, by his use thereof, becomes either a trustee or a debtor of any and all personal property in his hands, not reduced to his possession with her assent in writing. Winn v. Riley, 151 Mo. 61; Jones v. Elkins, 143 Mo. 647; Alkire Gro. Co. v. Balenger, 137 Mo. 369; Bank v. Winn, 132 Mo. 80; Hoffman v. Elxer, 126 Mo. 486; McGuire v. Allen, 108 Mo. 407. (7) The title to money or other personal property of a married woman is not transferred to the husband by his use, possession or care thereof. Alkire Gro. Co. v. Balenger, 137 Mo. 369. (8) The endorsement of a note owned by a married woman and delivered to her husband is not such written assent under this Section 7328 as will authorize him to pledge or dispose of said note for his own use. MacMahon v. Welsh, 132 Mo.App. 593; Hurt v. Cook, 151 Mo. 416; Case v. Espenschied, 169 Mo. 215; McGuire v. Allen, 108 Mo. 403. (9) When the husband holds or converts the property of his wife without her written assent as required in Sec. 7328, R. S. 1919, she may treat him as her trustee or as a single debtor. Broughton v. Brand, 94 Mo. 169; Owen v. Wiggens, 133 Mo. 630; Jones v. Elkens, 143 Mo. 647; Winn v. Riley, 151 Mo. 61; McLeon v. Venable, 163 Mo. 536; Hudson v. Wright, 204 Mo. 432. (10) The mere endorsement of the note falls short of the express assent of the wife, required by the statute. Games v. Groff, 157 Mo. 402; McGuire v. Allen, 108 Mo. 403; Winn v. Riley, 151 Mo. 61. (11) In attempting to create a jointure, if a jointure was attempted, the banking statute was not complied with. Sec. 5400, R. S. 1929, being Sec. 11779, R. S. 1919; Sec. 3003, R. S. 1929, being Sec. 7328, R. S. 1919; Messenbaugh v. Goll, 202 S.W. 265; McMahon v. Welch, 132 Mo.App. 593; McGuire v. Allen, 108 Mo. 403; Hurt v. Cook, 151 Mo. 416; Case v. Espenschied, 169 Mo. 215; Craig v. Bank of Joplin, 189 Mo.App. 389; Crowley v. Crowley, 167 Mo.App. 414; Donovan v. Boyd & Griffith, 215 Mo. 149; Powell v. Powell, 183 S.W. 625; Dacurso v. Dacurso's Estate, 239 S.W. 890. (12) A wife cannot direct that either personal property or a chose in action be payable to her husband or to herself and her husband, nor can she by mere endorsement reduce personal property or a chose in action to the possession of her husband unless she does so by means of a written assent authorizing him to sell, dispose of, or encumber same and reduce it to his immediate possession and dominion. Sec. 3003, R. S. 1929, being Sec. 7328, R. S. 1919; Messenbaugh v. Goll, 202 S.W. 265; McMahon v. Welch, 132 Mo.App. 593; McGuire v. Allen, 108 Mo. 403; Hurt v. Cook, 151 Mo. 416; Case v. Espenschied, 169 Mo. 215; Craig v. Bank of Joplin, 189 Mo.App. 389; Crowley v. Crowley, 167 Mo.App. 414; Donovan v. Boyd & Griffith, 215 Mo. 149; Powell v. Powell, 183 Mo. 625; Dacurso v. Dacurso's Estate, 239 S.W. 890. (13) The opinion of this court en banc in McGuire v. Allen, 108 Mo. 403, which was the law of the case at bar, was not overruled by the dicta in the case of In re McMenamy's Guardianship, 307 Mo. 98; State ex rel. v. Becker, 235 S.W. 1017; Kinnert v. Smith, 41 S.W.2d 381. (14) The case of Haguewood v. Britain, 273 Mo. 89, was not the law of the case at bar for the reason that it was an opinion of Division Number One and could not overrule the decision of this court en banc in the case of McGuire v. Allen, 108 Mo. 403. Further the Haguewood case, supra, and the case of Larrick v. Heathman, 288 Mo. 370, differ in their facts from the instant case and are predicated, with respect to the certificates of deposit in the instant case, upon the fact in each of the above cases that the deed on its face created an estate in the entirety.

John P. Peters and E. M. Zevely for respondent.

(1) The "bank section" of the Missouri Revised Statutes of 1929, sec. 5400, was taken from the Banking Laws of New York 1892, Ball v. Mercantile Trust Co., 220 Mo.App. 1165, 1172. Under the accepted rule of this State in the construing of statutes of another state, adopted by this State, the construction of the statute in the foreign state before its adoption here is controlling after its adoption. With this legal pronouncement before us, we state: "If the relation of husband and wife could be eliminated from consideration, there would be no question but that Bridget Wolfe, by making the deposits in the form she did with the intention of giving respondent a joint interest in the funds during their lives and the absolute ownership thereof if he outlived her, created a joint tenancy with the attendant right of survivorship." Corcoran v. Hotaling, 164 A.D. 75; Kennedy v. McMurray, 169 Cal. 287; Trust Co. v. Reagan, 193 Mo.App. 290. (2) The proof of intention of Mrs. Wolfe was clearly established by the testimony introduced and undenied. In the absence of proof to the contrary, husband and wife will be taken to be the joint owners in equal shares of money on deposit in bank to their joint credit. State ex rel. Toebben v. Brady, 53 Mo.App. 202. A promissory note made payable to the husband "or" his wife, passes on the decease of the husband to the wife, who becomes the sole owner of such note as his survivor. Wells v. Moore, 68 Mo.App. 499. Where certain promissory notes given for rent of land which was the separate estate of a married woman were made payable to the order of her husband and herself, . . . the joint payee took them by survivorship. Shields v. Stillman, 48 Mo. 82; Sec. 3114, R. S. 1929. If the relation of husband and wife does not prevent the usual incident of survivorship, then the certificates were sufficiently "in form" of the statute. Corcoran v. Hotaling, 164 A.D. 75; Kennedy v. McMurray, supra; Trust Co. v. Reagan, 193 Mo.App. 290; Ambruster v. Ambruster, 31 S.W.2d 28; Mississippi Valley Trust Co. v. Smith, 320 Mo. 989, 9 S.W.2d 58. No particular formula is required and courts will be controlled by the substance of the transaction rather than by the name given it. Mississippi Valley Trust Co. v. Smith, 320 Mo. 1000; Conqueror Trust Co. v. Craig, 204 Mo.App. 650. (3) Survivorship is favored as to husband and wife, being especially preserved in the statute abolishing joint tenancies as to other persons. R. S. 1929, sec. 3114; Haguewood v. Britain, 273 Mo. 89; Larrick v. Heathman, 288 Mo. 370. (4) On the certificate for $ 4,173.45, dated October 19, 1927, the first step necessary to effect the change desired was the endorsement by the wife, the payee therein named, and with a full knowledge of the result to be attained, which she had carefully considered for over a year, she made that endorsement with her own hand as fully as she was capable of doing. As to whether this was a sufficient "assent in writing" this case, in the light of all the surrounding facts and circumstances, should surely be distinguished from cases cited by appellant, such as McGuire v. Allen, 108 Mo. 403; Hurt v. Cook, 151 Mo. 416; Powell v. Powell, 183 S.W. 625; Case v. Espenschied, 169 Mo. 215; Messenbaugh v. Goll, 202 S.W. 265, and McMahon v. Welch, 132 Mo.App. 593, wherein the husband was in possession of checks or notes, with the mere blank endorsement of the wife, and used them for his own benefit without her consent, and in some of the cases without her knowledge. (5) The Married Woman's Act, Sec. 3003, R. S. 1919, relied on by appellant to defeat the claim of responden...