Phillips v. Alford

• Decision Date: 27 January 1936
• Docket Number: No. 18479.,18479.
• Citation: 90 S.W.2d 1060
• Parties: PHILLIPS v. ALFORD et al.
• Court: Missouri Court of Appeals

90 S.W.2d 1060

PHILLIPS v. ALFORD et al.

No. 18479.

Kansas City Court of Appeals. Missouri.

January 27, 1936.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State Reports."

Suit by Maude H. Phillips against Lon B. Pullins, administrator of the estate of Sallie C. Pullins, deceased, and another. After the administrator's death, the cause was revived in the name of his administratrix and William T. Alford, administrator de bonis non of the estate of Sallie C. Pullins, as parties defendant. From a judgment for the defendant administrator, plaintiff appeals.

Affirmed.

See, also, In re Pullins' Estate, 90 S.W. (2d) 1059.

Joseph P. Hughes, of Kansas City, for appellant.

James E. Goodrich and Hugh M. Hiller, both of Kansas City, for respondent bank.

Ralph S. Latshaw and P. H. Jackson, both of Kansas City, for respondent Alford.

BLAND, Judge.

This is a suit to determine the ownership of two certificates of deposit and the proceeds thereof. The case was tried as a proceeding in equity, resulting in a judgment in favor of the defendant, William T. Alford, administrator, and the plaintiff has appealed.

This cause was instituted in the circuit court of Jackson county, on January 27, 1934. The petition alleges that plaintiff is the sister of one, Sallie C. Pullins, who died intestate and childless, in Jackson county, on September 16, 1933; that the defendant, Lon B. Pullins, is the surviving husband of the deceased and the administrator of her estate; that the defendant, the East Side Bank of Commerce, is a banking corporation; that on September 16, 1932, the East Side Bank of Commerce issued to the said Sallie C. Pullins, in her lifetime, two certificates of deposit in the sum of $1,000 each, payable to her order, upon the return of the certificates properly endorsed, three, six, nine or twelve months after date; that on the 14th day of September, 1933, during the lifetime of the said Sallie C. Pullins, she gave said certificates of deposit to the plaintiff (the petition alleging facts, if true, showing such a gift); that plaintiff and her attorney have been in sole possession of the same ever since; "that the funds represented by the said certificates of deposit are now being held by the said defendant bank, which will not pay same to plaintiff without a decree and order of this court; that the said defendant bank is a necessary party to this suit; that the defendant, Lon B. Pullins, as administrator of the estate of Sallie C. Pullins, deceased, is claiming right to possession of the said certificates of deposit, alleging them to be the property of said estate; that the defendant, Lon B. Pullins, individually for himself claims a right to an interest therein as surviving husband of the said Sallie C. Pullins."

The petition further states that all parties to the cause were necessary parties in order that there might be a complete adjudication of their rights and claims and to prevent a multiplicity of suits between them in "their different capacities" and that plaintiff is without an adequate remedy at law. The petition asks that the court adjudge the plaintiff all right, title and interest in and to said certificates and "to the funds represented thereby" and to issue an order on the defendant bank to deliver "said funds to her" and for general relief.

After the cause was instituted the defendant Lon B. Pullins died and the cause was revived in the name of William T. Alford, administrator de bonis non of the estate of Sallie C. Pullins, deceased, and Marguerite Pullins, administratrix of the estate of Lon B. Pullins, deceased, as parties defendant.

On August 29, 1934, defendant, the East Side Bank of Commerce, filed a pleading in the nature of a bill of interpleader, acknowledging the issuance of the certificates of deposit, alleging that the sum of $1,030.00 was then due upon each and stating that the plaintiff, Maude H. Phillips, and William T. Alford, administrator of the estate of Sallie C. Pullins, deceased, were both claiming to be entitled to the said certificates of deposit and their proceeds and asked that the court order that the fund be paid into court and that plaintiff and the defendant, William T. Alford, administrator, be required to interplead for the fund.

No order was made relative to the request of the defendant, East Side Bank of Commerce, that the said parties interplead for the fund, until the conclusion of the trial of the whole case, where, in effect, the prayer of the bank was granted. There is no point raised by any of the parties hereto as to any irregularity in the disposition of the answer and request of the bank or its right to make it.

Defendant, William T. Alford, administrator of the estate of Sallie C. Pullins, filed a pleading entitled "Answer and Cross-petition," admitting the issuance of the certificates of deposit but denying each and every other allegation contained in the petition and, for further answer, pleaded as res adjudicata, a judgment of the circuit court of Jackson county, wherein the administrator of the estate of Sallie C. Pullins, deceased, in a proceeding, instituted by him in the probate court and appealed to said circuit court, to discover assets, against the present plaintiff; that the said judgment by said circuit court adjudged that the two certificates of deposit in question were the absolute property of the estate of Sallie C. Pullins and ordered that the same be delivered to the administrator of her estate. The answer further alleged that plaintiff had unlawfully and fraudulently obtained possession of said certificates of deposit and asked that the petition be dismissed and if it be not dismissed that the court adjudge that William T. Alford, as administrator of the estate of Sallie C. Pullins, deceased, be entitled to said certificates of deposit and the proceeds thereof.

The defendant, Marguerite Pullins, administratrix, filed a pleading entitled "Answer and Cross-petition" which alleges substantially the same facts as those set out in the answer of the defendant, Wm. T. Alford, administrator, and asked that plaintiff's petition be dismissed and that if the same be not dismissed that the court adjudge that said Alford, as administrator, be entitled to the certificates of deposit and the proceeds thereof.

The facts show that Sallie C. Pullins died by her own hand at the age of 68 years on September 16, 1933, at her home in Kansas City; that Lon B. Pullins and Sallie C. Pullins were husband and wife and lived together as such at their home located at 2025 Kansas avenue, in Kansas City; that they were married in June, 1924; that both of them previously had been married; that the home where they lived was purchased in 1925 and the title was taken in the name of Sallie C. Pullins; that the property was not paid for in cash but by installments; that by far the greater number of the installments were paid by Pullins, although his wife paid some of them; that she had worked for a laundry for a period of about 14 years and had accumulated some money of her own; that at the time of her death, though extremely nervous, she was in "fairly" good health, except that she had suffered from arthritis and had to quit work on this account; that she had remained at home for about a year prior to her death; that there were no children born of the marriage between Mr. and Mrs. Pullins; that for four years prior to her death her sister, the plaintiff herein, lived with them at their home.

In August, 1933, Pullins underwent a major stomach operation and he was told by the doctor that he had but a limited time in which to live. "He wasn't supposed to live over three months or a year." He returned from the hospital to his home about a week prior to the day of his wife's death.

In addition to having the certificates of deposit from the East Side Bank of Commerce, Mrs. Pullins also had on deposit in said bank the sum of about $606.00. This and the home place were the only substantial assets that she had at the time of her death, so far as the evidence shows. There is no evidence that her husband was possessed of any money or property.

Plaintiff introduced as a witness, Mr. I. B. Nordyke, secretary of the building and loan association which held the mortgage upon the home. He testified that shortly before the death of Mrs. Pullins (perhaps a week or two) she came to him and desired to transfer her property to her sister, the plaintiff, Mrs. Phillips; that he told her that the property could be deeded to her sister if her husband would sign the deed but she said he would not sign it; that at this time she appeared to be highly nervous and worried about something; that this was the last time he saw her during her lifetime; that Mrs. Pullins brought to his office about six of the payments of the twenty-eight in all made upon the property; that Mr. Pullins brought the remainder.

Plaintiff also put upon the stand, Mr. E. G. McGonigle, vice-president of the defendant, East Side Bank of Commerce, who testified that about three or four days prior to the death of Mrs. Pullins she came to the bank in company with a lady; that Mrs. Pullins then had in her possession the certificates of deposit in question and her bank book; that she stated that she desired to "deposit the certificates of deposit to her sister's (plaintiff's) account and she wanted to draw the interest on them in cash." The witness further testified that the maturity date of one year on the certificates did not expire until the 16th of the month, which was three or four days after Mrs. Pullins came to see him; that he explained to her that in order to draw the full year's interest, it would be necessary for her to permit the certificates to remain in her name until the 16th; that Mrs. Pullins stated that she would be back again when the certificates were due, or, "something to that effect"; that he suggested to Mrs. Pullins that it would be advisable, if s...