Shroff v. Deaton, 6441.

• Decision Date: 31 March 1949
• Docket Number: No. 6441.,6441.
• Citation: 220 S.W.2d 489
• Parties: SHROFF et al. v. DEATON.
• Court: Texas Court of Appeals

220 S.W.2d 489

SHROFF et al. v. DEATON.

No. 6441.

Court of Civil Appeals of Texas. Texarkana.

March 31, 1949.

Appeal from District Court, Gregg County; Earl Roberts, Judge.

Suit by Mrs. Peggy Deaton Shroff and others against Mrs. Melanie Selzer Deaton to recover one-half of a sum of money on deposit with the Kilgore Federal Savings & Loan Association, wherein the Association filed its bill of interpleader and deposited the fund in controversy in registry of the court. From judgment denying plaintiffs any recovery, the plaintiffs appeal.

Affirmed.

John E. V. Jasper, Dallas, for appellants.

W. H. Barnes, Terrell, for appellee.

LINCOLN, Justice.

The appellants, children and heirs at law of K. D. Deaton by a former marriage, brought this suit against the appellee to recover one-half of a sum of money on deposit with the Kilgore Federal Savings and Loan Association. The parties will be referred to as in the trial court and the Kilgore Federal Savings and Loan Association will be referred to as the Association. Defendant was the surviving wife of K. D. Deaton, deceased. After the suit was filed the association filed its bill of interpleader and deposited one-half of the fund in the registry of the court, this being the fund in controversy. Plaintiffs' petition alleged that the money on deposit with the association was the community property of the deceased and of the defendant, and that the plaintiffs as heirs at law of deceased were entitled to one-half of it. The deceased left a written will which had been probated, but it was admitted by the parties that the will did not dispose of the fund on deposit with the association.

The case was tried before the court without a jury. The judgment entered denied plaintiffs any recovery and allowed an attorney's fee to be paid to the association out of the fund deposited in the registry of the court. There is no appeal from that part of the judgment allowing attorney's fees but the plaintiffs appeal from the judgment denying them recovery for one-half of the fund, as sued for in their petition.

After the judgment had been entered the court filed its findings of fact and conclusions of law, as requested by the plaintiffs. The findings material to this decision are as follows:

"5. At the time of the death of K. D. Deaton in October, 1947, there was deposited to the joint account of K. D. Deaton and wife, Melanie Selzer Deaton, the sum of $9,919.22, with the Kilgore Federal Savings and Loan Association, which amount of money is the basis of this suit.

"6. That on or about May 1, 1946, the said K. D. Deaton and Melanie Selzer Deaton entered into a written contract with the Kilgore Federal Savings and Loan Association for the purchase of Optional savings shares; that the said written agreement provided that the purchase was to be held in joint tenancy by the said K. D. Deaton and Melanie Selzer Deaton, and further provided the right of survivorship, a copy of said instrument being in exact form as follows:

                  "`No. 333      Date  501   1946
                "`Names     K. D. or Mrs. Melanie Deaton
                

"`I hereby subscribe for Optional Savings shares in the Kilgore Federal Savings and Loan Association subject to the laws of the United States, the rules and regulations of the Federal Home Loan Bank Board and the charter and by-laws of the association as they now are or as they may hereafter be amended. It is understood and agreed that the shares hereby subscribed for are issued by the association, and all moneys paid or that may hereafter be paid thereon are paid by the undersigned, and such shares together with all accumulations thereon are held by the association for our account, as joint tenants with right of survivorship and not as tenants in common, and that said shares may be resold subject to the by-laws of the association, by either before or after the death of either, and either is authorized to pledge the same as collateral security to a loan.

                (Signed)  K. D. Deaton, Mrs. Melanie
                    Deaton
                (For a joint account)'
                

"7. That a passbook was issued in the names of both parties, namely K. D. Deaton and Melanie Selzer Deaton, for the purpose of making deposits and withdrawals and that the withdrawals and/or deposits could be made either with or without the presenting of the passbook.

"8. The said K. D. Deaton did, a short time before his death, make a gift of all of his interest in said shares of stock or money on deposit with the Kilgore Federal Savings and Loan Association to Melanie Selzer Deaton, and delivered at that time the passbook heretofore referred to, to said Melanie Selzer Deaton."

The court's conclusions of law are as follows:

"2. That after the death of K. D. Deaton in October, 1947, his interest in the account passed to Melanie Selzer Deaton under the terms of the contract with the Kilgore Federal Savings and Loan Association, and that said whole interest should vest in the survivorship of the two, such provisions being valid.

"3. That K. D. Deaton made a valid gift of his interest in the account to Melanie Selzer Deaton prior to his death and with it delivered the passbook heretofore referred to.

"4. In connection therewith, the court further finds that both parties had a legal right to withdraw their savings in accordance with the terms of the contract with the Kilgore Federal Savings and Loan Association.

"5. That all the money deposited with the Kilgore Federal Savings and Loan Association, except $3,000 placed therein by Melanie Selzer Deaton as her separate property, was made by the joint efforts of both K. D. Deaton and Melanie Selzer Deaton, and thereby became community property."

No statement of facts has been brought up on appeal. The first point presented for reversal is that ...