Napier v. Eigel

• Decision Date: 06 October 1942
• Docket Number: 38125
• Parties: Clara Napier, Plaintiff-Respondent, v. George Eigel, as Executor of the Estate of Amalie Marie Napier, and George Eigel, as Trustee Under the Will of Amalie Marie Napier, and the Washington University, a Corporation, Defendants-Appellants, and Emmaus Lutheran Church of St. Louis, Lutheran Society for Homeless Children, and the Lutheran Altenheim Society of Missouri, Defendants
• Court: Missouri Supreme Court

164 S.W.2d 908

350 Mo. 111

Clara Napier, Plaintiff-Respondent, v. George Eigel, as Executor of the Estate of Amalie Marie Napier, and George Eigel, as Trustee Under the Will of Amalie Marie Napier, and the Washington University, a Corporation, Defendants-Appellants, and Emmaus Lutheran Church of St. Louis, Lutheran Society for Homeless Children, and the Lutheran Altenheim Society of Missouri, Defendants

No. 38125

Supreme Court of Missouri

October 6, 1942

Appeal from Circuit Court of City of St. Louis; Hon. David J Murphy, Judge.

Reversed.

Richard S. Bull for appellant The Washington University and John A. Eigel for appellant George Eigel.

(1) Joint estates are not favored. To establish them, with their attendant rights of survivorship, where there is no statutory presumption in their favor, the evidence of their creation by gift must be clear and convincing and must resolve the issue beyond a reasonable doubt. Murphy v. Wolfe, 329 Mo 545, 45 S.W.2d 1079; Rodney v. Landau, 104 Mo. 251; Johnston v. Johnston, 173 Mo. 91; In re Franz's Estate, 127 S.W.2d 401, 344 Mo. 510; Albrecht v. Slater, 233 S.W. 8; Hunter v. Wabash Ry., 149 Mo.App. 243; Steffen v. Stahl, 273 S.W. 118; Foley v. Harrison, 233 Mo. 460; 7 R. C. L 813, Cotenancy, sec. 5. (2) The currency and bonds claimed by plaintiff concededly originated from funds belonging to the decedent, and the latter had been the sole owner thereof, as found by the court below. If, therefore, a joint tenancy was established, it must have been either by (a) a completed gift from the decedent to the plaintiff, or (b) creation of a condition which immediately vested plaintiff with the rights of a joint owner. Bunker v. Fidelity Natl. Bank & Trust Co., 335 Mo. 305, 73 S.W.2d 242; Commonwealth Trust Co. v. DuMontimer, 193 Mo.App. 290; In re Estate of Martin, 219 Mo.App. 51; Perry v. Leveroni, 252 Mass. 390, 147 N.E. 826; Anno. L. R. A. 1917C, 551, 557, 48 A. L. R. 203, 66 A. L. R. 891, 103 A. L. R. 1129, 135 A. L. R. 993. (3) For a joint tenancy of this sort to be effective there must be a completed donation. Even though acceptance by the donee of a gift imposing no burdens may be presumed, there yet must be knowledge thereof by the donee, and, more importantly, action taken by the donor to create a condition vesting joint title and right of possession and control. Here respondent's sister, to the time of her death, retained exclusive dominion and control over the subject matter; she had sole access to the safe deposit box, rented in her own name alone, which contained the currency and bonds. This fact is wholly incompatible with a consummated gift or joint tenancy. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Burns v. Plaza Bank of Commerce, 141 S.W.2d 209; Martin v. First Natl. Bank, 206 Mo.App. 629; Burchett v. Fink, 139 Mo.App. 381; Thompson v. Bratcher, 8 S.W.2d l. c. 1029; In re Peterson's Estate, 214 N.W. 418; Bolton v. Bolton, 138 N.E. 158; Appeal of Garland, 136 A. 459; Robinson v. Mutual Savs. Bank, 95 P. 533; Young v. Young, 80 N.Y. 422; Hurley v. Molloy, 21 N.Y.S. (2d) 974; 14 Am. Jur., pp. 81, 83, Cotenancy, secs. 7, 11; 24 Am. Jur., pp. 742, 744, Gifts, secs. 23, 26; Anno. 25 A. L. R. 643. (a) The markings on the envelopes, containing such words as "Emergency Property of Dr. Amalie M. Napier and or Clara Napier," and "Property of Amalie M. Napier, Clara Napier," were not of themselves sufficient to create a joint tenancy with right of survivorship (Plaintiff's Exhibits C, D and E). Evidence of an intent to that end likewise was insufficient, in view of decedent's retention of control, and that evidence was limited in any event to "an envelope containing money" with "both names on it." Imperfect, uncompleted gifts are not enforceable. Trautz v. Lemp, supra; Williams v. Thornton, 22 S.W.2d 1041; In re Pizer's Estate, 32 N.Y.S. (2d) 821, 178 Misc. 7; In re Bashford's Estate, 34 N.Y.S. (2d) 678; In re Squibb's Estate, 160 N.Y.S. 826; 24 Am. Jur., pp. 741, 754, 776-777, Gifts, secs. 23, 43, 91. (b) Such intention, if any, as there may have been on the part of decedent to pass title on her death to any of the money or bonds in question was testamentary in character and therefore not good as a gift causa mortis. Sec. 520, R. S. 1939; Trautz v. Lemp, supra; In re Lindhorst's Estate, 216 Mo.App. 473, 270 S.W. 150.

Buder & Buder and G. A. Buder, Jr., for respondent.

(1) Dr. Napier, the deceased, intentionally and effectively created a situation in regard to the currency and the United States Treasury Bonds which embraced all the essential elements of joint ownership by herself and her sister, the respondent herein. The creation of a joint tenancy with right of survivorship is not governed by the same rules as the making of gifts inter vivos and the respondent's title by virtue of survivorship is not defeated by circumstances which would have been fatal in the case of a gift. Bunker v. Fidelity Natl. Bank & Trust Co., 335 Mo. 305, 73 S.W.2d 242; In re Martin's Estate, 219 Mo.App. 51, 266 S.W. 750; Commonwealth Trust Co. v. Du Montimer, 193 Mo.App. 290, 183 S.W. 1137. (a) The correct interpretation of the symbol "and/or" requires effect to be given to both the conjunctive and the disjunctive, especially where that is necessary to effectuate the intention of the parties. The use of that symbol by the deceased, together with her statement explaining her action during her life, was amply sufficient to create a joint ownership with right of survivorship in herself and her sister. Bobrow v. United States Cas. Co., 231 A.D. 91, 246 N.Y.S. 363; Schaffer v. City Bank Farmers' Trust Co., 267 N.Y.S. 551; Davison v. F. W. Woolworth Co., 198 S.E. 738; Natl. Cash Register Co. v. Taylor, 297 N.Y.S. 169. (2) The cases invoked by appellants are inapplicable to the case at bar and do not defeat plaintiff's claim because they involved either (a) gifts inter vivos as distinguished from joint ownership or (b) unfinished attempts to create a joint ownership. Burns v. Plaza Bank of Commerce, 141 S.W.2d 209; Martin v. First Natl. Bank, 206 Mo.App. 629; Burchett v. Fink, 139 Mo.App. 381; Trautz v. Lemp, 329 Mo. 580.

Clark, J. All concur, except Hays, J., absent.

OPINION

CLARK

Dr. Amalie M. Napier died testate in March, 1940. By her last will she provided that her entire net estate should be held in trust and certain payments made to her sister, the respondent herein, during her life and then, the property remaining, be distributed to certain religious and educational institutions.

Among the assets inventoried to and now claimed by appellants as the property of the estate were United States bonds of the par value of $ 2,500.00 and currency to the amount of $ 6,655.00, all found in a safety deposit box rented by the deceased.

The respondent, Clara Napier, as plaintiff, brought a suit in equity in the circuit court against the executor and trustee and the beneficiaries named in the will and procured a decree adjudging respondent to be the owner of said bonds and currency. The case is here on appeal by defendants.

In her petition respondent alleged that her sister, Dr. Napier, "during her lifetime created and established a joint tenancy with right of survivorship in behalf of and in the name of herself and this plaintiff," as to the property in question.

The case was tried on an agreed statement of facts supplemented by brief oral and documentary evidence from which it appears: Plaintiff and Dr. Napier were sisters and for more than twenty years prior to the death of the latter made their home together in a residence owned by the deceased. Deceased was a practicing physician, an eye specialist, and the household expenses as well as the personal expenses of both sisters were paid by her. Plaintiff had no property or income. Deceased had rented in her own name a safe deposit box which, after her death, was found to contain the bonds and currency involved in this case and a large amount of other bonds and cash. The bonds in controversy were in two large envelopes, each bearing the endorsement: "Property of Amalie M. Napier Clara Napier 3158 Ohio Ave. St. Louis," the name "Clara Napier" and the address being in handwriting of the deceased. The cash in controversy was in a large envelope endorsed: "Emergency property of Dr. Amalie M. Napier and or Clara Napier," the italicized words being in print and the rest of the endorsement being in the handwriting of deceased. Seventy dollars of this cash was loose in the large envelope and the remainder was in a number of smaller envelopes contained in the large one. Some of these small envelopes bore endorsements in the handwriting of deceased, such as: "Clara or Amalie Napier in case of sickness. Special," "Clara & Amalie Napier," "Clara or Amalie Napier," "Emergency, Amalie Napier."

Plaintiff attempted to testify that she had at different times accompanied her sister to the safety deposit box, but this testimony was excluded on the objection of defendants. Mrs. Fisher, a witness for plaintiff, testified that a few days before Christmas in 1939 the deceased said she had left an envelope containing money, not stating the amount, in her safety deposit box and wanted it used for emergency, in case anything happend to her or her sister, and the survivor was to get it. On cross-examination this witness said the deceased mentioned the will, "In the event the will would be tied up" and also said something about the money being used in case of sickness.

For the defendants, employees of the trust company said they had seen deceased visit the safe deposit vault frequently, but had never seen any one accompany her.

Appellants say the proof is insufficient to establish a joint tenancy with right of survivorship because it does not show a completed gift nor the creation of a...