Newcombe v. Farmer, 30811
| Decision Date | 18 September 1962 |
| Docket Number | No. 30811,30811 |
| Citation | 360 S.W.2d 272 |
| Parties | Ruth Richmond NEWCOMBE, Plaintiff-Respondent, v. Judson FARMER, Grace McNabb, Administratrix of the Estate of Effie Richmond Farmer, Deceased, and Bank of Belgrade, a corporation, Defendants, Grace McNabb, Administratrix of the Estate of Effie Richmond Farmer, Deceased, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Samuel Richeson, Dearing, Richeson & Weier, Hillsboro, for appellant.
Frank May, Robert A. McIlrath, Flat River, for respondent.
BRADY, Commissioner.
The issues involved in this appeal arise out of a dispute as to the ownership of a bank account in the sum of $3,385.37, claimed by the administratrix to belong to the estate of Effie Richmond Farmer, and by her daughter, the plaintiff in the trial court, to belong to her. The jury found the issue in favor of the daughter, respondent here, and awarded her the full fund. Upon her timely after trial motions being overruled, the administratrix has perfected this appeal and will hereinafter be referred to as the appellant.
The respondent's amended petition alleged that on the 4th of February, 1953, the respondent and her husband purchased from her mother a tract of land in Washington County, Missouri, in which the mother reserved a life estate; that the respondent and her husband assumed a deed of trust on that property in the amount of $2,500.00; that on December 4, 1958 '* * * the plaintiff and her husband sold said property * * *' for $3,500.00 and directed the mother to receive this amount and to '* * * place the same in a joint account with right of survivorship in the Bank of Belgrade to be in the name of Effie Richmond and Ruth L. Newcombe * * *'; that the mother did receive the money but, contrary to the directions given her by the Newcombes, placed the money in the bank in her own name; that the respondent's mother married Judson Farmer in 1955; that the mother died on April 23, 1959, then having $3,385.37 '* * * of the money belonging to your petitioner * * *' in the Bank of Belgrade in her own name; that this money is claimed by the administratrix as part of the estate and the bank therefore refuses to pay it to the respondent; that this money does not belong to the estate but does belong to the respondent. The petition prayed a judgment '* * * declaring that said money above mentioned that is now in the Bank of Belgrade is the sole property of the Plaintiff herein and that Judson Farmer and Grace McNabb, as Administratrix, of the Estate of Effie Richmond Farmer, has no title or interest in and to the same and that the Bank of Belgrade be directed to pay all of said money to the Plaintiff herein.'
Appellant's answer, insofar as the matters essential to this appeal are concerned, admitted that the money remained on deposit in the Bank of Belgrade in the name of Effie Richmond Farmer, denied that it belonged to plaintiff, denied that plaintiff and her husband directed Effie Richmond Farmer to receive the money and place the same in a joint account, admitted the death of Effie Richmond Farmer, and the amount remaining on deposit at that time, and admitted that defendant Grace McNabb as administratrix claimed to be entitled to said funds.
The appellant contends that the respondent failed to make a submissible case because there was no evidence of any agreement to deposit this mony in a joint account with the right of survivorship and therefore the trial court reversibly erred in overruling appellant's motions for a directed verdict. Secondly, appellant contends that the trial court reversibly erred in permitting the respondent to testify at all. In this regard it is the appellant's position that respondent was barred from testifying because of the Dead Man's Statute. The third allegation of error deals with the trial court's action in permitting respondent to testify that Judson Farmer had filed a claim for allowances, that respondent had paid her mother's funeral and medical expenses, and that respondent and her mother had previously maintained a joint account in another bank. The appellant also assigns as reversible error the trial court's action in giving and reading to the jury Instruction No. 1, contending that there was no evidence to support the submission of such an instruction. The last allegation of reversible error deals with the trial court's action in refusing to permit appellant's counsel to argue to the jury that an inference unfavorable to respondent should be drawn from the failure of respondent's husband to testify since he was also a party to the transaction out of which this fund arose. Under our disposition of this appeal, we will rule only upon the contentions of appellant with regard to the lack of a submissible case and, because the matter is closely connected thereto, the giving of respondent's verdict--directing Instruction No. 1. For that reason, the evidence has been summarized without niting the repeated and energetic objections by appellant's counsel.
Instruction No. 1 reads:
'The Court instructs the jury that noting the repeated and energetic objections that Ruth Richmond Newcombe and her husband, Paul Newcombe, signed and delivered a Deed to Effie Richmond Farmer, deceased, selling real estate mentioned in the evidence and if you further find that Effie Richmond Farmer received $3,500.00 for said property that was sold and if you further find and believe from the evidence that at the time Ruth Richmond Newcombe and Paul Newcombe delivered the Deed to Effie Richmond Farmer, it was agreed by all parties thereto that the money for said property was to be placed in the Bank of Belgrade, a Corporation, with Effie Richmond Farmer and Ruth Richmond Newcombe as joint tenants with right of survivorship, then, so finding your verdict will be for the Plaintiff.'
It should be pointed out that Instruction No. 2 hypothesized that if no agreement to deposit the money in the joint names with right of survivorship was found, then the verdict should be for the appellant. It is obvious that the jury found an agreement. The only other instruction given was a burden of proof instruction.
The evidence was that Effie Richmond, the respondent's mother, was, after her husband's death, the sole owner of some real estate in Washington County, Missouri. On February 4, 1953, while a feme sole, by 'general warranty deed', admitted into evidence, Mrs. Richmond conveyed one-half interest in this property to 'Ruth L. Newcombe or Paul E. Newcombe' but reserved a life estate to herself. The Newcombes assumed a deed of trust in the amount of $2,500.00 on the farm. Mrs. Richmond married Judson Farmer in 1955. On December 4, 1958, by warranty deed admitted into evidence, Judson Farmer, Effie Richmond Farmer, Paul E. Newcombe and Ruth L. Newcombe conveyed this same property, a farm, to one Cruse Shelton and Oda Mae Shelton, his wife, in consideration of $3,500.00. The respondent testified that this deed was sent to her by her mother for her and Paul Newcombe to sign; that her mother secured the buyers, the Sheltons; that her mother received the payment for the property; that her mother died in April of 1959; and that her mother had a bank account at the Bank of Belgrade, and at the time of her death there was approximately $3,400.00 or $3,300.00 in it. The respondent further testified that she, her husband and her mother also owned two lots in Belgrade which were conveyed to them on April 3, 1959, by the deceased's sister, Mattie Turner...
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