Roecher v. Commercial Nat. Bank
| Decision Date | 20 June 1930 |
| Docket Number | 6613. |
| Citation | 289 P. 388,87 Mont. 570 |
| Parties | ROECHER v. COMMERCIAL NAT. BANK. |
| Court | Montana Supreme Court |
Rehearing Denied July 7, 1930.
Appeal from District Court, Gallatin County; O. F. Goddard, Judge.
Action by A. C. Roecher, as administrator of the estate of Nelson Story, Sr., against the Commercial National Bank. From the judgment, plaintiff appeals.
Judgment modified, and, as modified, affirmed.
Walter Aitken, of Bozeman, for appellant.
W. S Hartman, Justin M. Smith, Roy M. Keister, and George Y Patten, all of Bozeman, for respondent.
This is an action in conversion brought by plaintiff as administrator of the estate of Nelson Story, Sr., deceased, against defendant for the recovery of certain personal property hereafter referred to as the "trust securities."
The complaint is in the usual form in this character of action. Defendant, by answer, admitted the possession of the property described in the complaint at the time of the death of Nelson Story, Sr., and alleged that it received the property pursuant to the terms of two certain agreements dated December 14, 1923, attached to and made a part of the answer, one between Nelson Story, Sr., and T. B. Story, and the other between Nelson Story, Sr., and Nelson Story, Jr., and that, pursuant to the terms of the agreements, it delivered the trust securities to Nelson Story, Jr., and Katherine F. Story. Demand by plaintiff for possession before the commencement of the action is admitted and liability denied.
Plaintiff demurred generally and specially to the answer, and moved to strike certain portions thereof. The demurrers were overruled and the motion to strike denied. Thereafter plaintiff replied, putting in issue the execution of the agreements and the receipt and delivery of the trust securities as alleged in the answer.
The cause was tried before the court with a jury, and, at the close of plaintiff's case, defendant's motion for a nonsuit was granted. Judgment was accordingly entered, from which plaintiff appeals.
The validity and effect of the agreements above referred to form the basis of this controversy. The agreement between Nelson Story, Sr., and T. B. Story relates to certain securities of the value of $72,700, and recites that several years before Nelson Story, Sr., distributed a large portion of his property to his son, T. B. Story, and as a result the latter became the absolute owner of such property; that at the same time, Nelson Story, Sr., desiring to protect T. B. Story and his family from unforeseen financial misfortune, and further with the idea of providing an income to Nelson Story, Sr., if unforeseen misfortune should come to him, he caused T. B. Story to agree "to turn over" to Nelson Story, Sr., the sum of $500 per month during the natural life of Nelson Story, Sr., or until such time as he should relieve T. B. Story from the obligation, and that pursuant to such understanding a contract was entered into between the parties on February 25, 1913, to carry out the understanding, and that under that contract T. B. Story had, on the 1st day of each month from March 1, 1913, to and including the 1st day of October, 1920, paid to Nelson Story, Sr., the sum of $500. The contract then recites:
"And whereas in said contract, above referred to, it was further understood between said parties that the party of the first part would safely keep all sums of money paid under said agreement during the natural life of the party of the first part, for the benefit of the party of the second part, or his family, and said contract further provided that said sums paid under said contract by said party of the second part should, at all times, be considered the property of the party of the second part, or his heirs and assigns, to be returned to the party of the second part or his family at the demise of the party of the first part, or at any time during the life of the party of the first part if he saw fit to return said money to the party of the second part, but it was further understood that the party of the first part should at all times, or until the party of the first part should relieve the party of the second part from said contract, or at the demise of the party of the first part, as hereinbefore stated, have the right to the income accruing from said fund for his own private use, and in consideration therefor the party of the first part would pay the annual income tax thereon."
The agreement then recites that on the 1st day of June, 1917, the parties entered into an additional agreement to the effect that T. B. Story should pay to Nelson Story, Sr., on the 1st day of June and January of each year thereafter, during the life of Nelson Story, Sr., in addition to the above-mentioned payments, the sum of $4,437.50, which payments should be held by Nelson Story, Sr., subject to all the terms and conditions of the agreement relating to the $500 payments; that T. B. Story had paid to Nelson Story, Sr., under the two agreements, the sum of $72,625; that the parties had agreed to partially reform the former contracts, and in lieu thereof substitute the agreement under consideration, "which shall be considered by the parties hereto as governing their rights and liabilities growing out of said understanding"; that T. B. Story in the past had borrowed sums of money from his wife, Katherine F. Story, in excess of the principal sum named, and agreed that such fund be turned over to Katherine F. Story rather than to himself, in order that she might be partially indemnified for such loans, and proceeds:
"Therefore, in consideration of the premises, it is mutually agreed between said parties that the party of the second part shall no longer make said payments of $500.00 per month, or of $4,437.50 semi-annually, as above stated, and that the party of the first part is this day turning over to the Commercial National Bank, of Bozeman, Montana, certain securities aggregating in value the sum of $72,625.00, which represents the $72,625.00 which has been paid by the party of the second part to the party of the first part;
That the party of the first part shall, during his natural life, receive all of the income necessary for his personal use and that of his wife, Ellen Trent Story, from said securities with the understanding, however, that he shall pay the income tax thereon during said period;
It is also provided that should the wife of the party of the first part, to-wit, Ellen Trent Story, survive him, then she shall receive so much of the income from said securities as may be necessary for her personal use, so long as she shall live, she paying the income tax thereon during said time.
Upon the demise of the party of the first part, or of the said Ellen Trent Story, if she should survive the party of the first part, then the said Commercial National Bank is directed to turn over to the said Katherine F. Story, or to her executors, administrators or assigns, all of said securities as referred to in this agreement, the same having become, in fact, her individual property.
It is further mutually agreed between the parties hereto that, should an exigency arise whereby the said party of the first part, or the said Ellen Trent Story, may require for their use a larger sum than the interest from said principal, as above referred to, they or either of them, shall have the right to take from said principal fund or securities such an amount as is necessary to maintain them in their present station of life and manner of living."
The agreement between Nelson Story, Sr., and Nelson Story, Jr., is identical with the one just referred to, except as to names, the amount paid by Nelson Story, Jr., the description of the securities, and provides that, upon the death of Nelson Story, Sr., the securities should be delivered to Nelson Story, Jr., or to his executors, administrators or assigns, and was signed by him subsequent to December 14, 1923.
The testimony shows that on the morning of December 14, 1923 Nelson Story, Sr., in company with T. B. Story, came to the bank of defendant, and requested Charles Vandenhook, then vice president, and now president, of the bank, to stay until he called him. During the afternoon Vandenhook, by request, went to the residence of Nelson Story, Sr., who stated to him that he was desirous of turning over to the bank certain securities to be held by it as trustee for Nelson Story, Jr., and Katherine F. Story, and that he would give him the key to his safety deposit box; that T. B. Story had a list of bonds to be taken out of the safety deposit box, which bonds would be a part of the securities to be turned over to the bank, and that such securities would be the ones to put into the trust box; that Nelson Story, Sr., gave to him a certificate of deposit of the Commercial National Bank for $10,000, a certificate of stock in the same bank for 200 shares, and the key to the safety deposit box, besides other securities not here involved. At the same time Nelson Story, Sr., discussed the contents of the agreements and the reason for making them; he stated that he was turning over the securities to the bank to be held for Nelson Story, Jr., and Katherine F. Story; that Nelson Story, Jr., and T. B. Story had been paying him $500 a month for many years, and that he had decided to discontinue the payments and to reimburse the sons for the payments made in the past, and he wanted the bank to act as trustee. Nelson Story, Sr., signed the instruments in...
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