Skidmore v. Back
| Citation | 512 S.W.2d 223 |
| Decision Date | 09 May 1974 |
| Docket Number | No. 9400,9400 |
| Parties | Grace Oma SKIDMORE, Plaintiff-Appellant, v. James T. BACK, Defendant-Respondent. |
| Court | Court of Appeal of Missouri (US) |
James E. Reeves, Ward & Reeves, Caruthersville, for plaintiff-appellant.
David W. Keathley, Keathley & Little, Poplar Bluff, for defendant-respondent.
This is a suit between a sister and her brother in which plaintiff-sister sought equitable relief by way of a constructive trust against her brother-defendant. The lower court refused to grant plaintiff the requested relief and this appeal followed. A proposed opinion of this court failed of adoption and the case was re-assigned. We reverse and remand with directions.
T. W. Back was the father of plaintiff, defendant, Thomas and Albert. Following his wife's death in 1959 Mr. Back sold his farm for the approximate sum of $16,000.00. In 1960 he set up four separate savings accounts of $4,000.00 each in a Cape Girardeau savings and loan institution with a different one of his four children designated as a joint tenant with him, with right of survivorship.
In 1964 Mr. Back purchased a house trailer and moved it to the home of his son Thomas. During 1964 the joint account of Mr. Back and Thomas was closed and the monies received therefrom were used by Thomas. In 1968 Mr. Back moved his trailer to defendant's home and during that year the joint account he had with the defendant was closed and the proceeds used to pay off the balance of the indebtedness on defendant's farm.
During March of 1971 Mr. Back was hospitalized for surgery and the remaining two joint accounts were closed. The proceeds of these two accounts were deposited in defendant's bank account. Thereafter, plaintiff brought this suit claiming that the defendant 'through the exercise of coercion, duress and undue influence . . . caused the said deposit (the joint account standing in the name of T. W. Back or Grace Skidmore) . . . to be withdrawn and delivered to defendant' and sought the imposition of a constructive trust as to these funds. Mr. Back then 97-years-old and physically incapacitated, was not made a party to the suit. He died following the trial and prior to oral argument of this case.
There is substantial evidence in the record that the four savings accounts were intended by Mr. Back as testamentary arrangements ('it would not have to go through Probate'), sometimes referred to as a form of 'a poor man's will', and that he desired to retain the beneficial interest in each of the accounts during his lifetime. In the case of In re Estate of LaGarce, 487 S.W.2d 493 (Mo. banc 1973), our Supreme Court ruled that if there was compliance with § 369.150, RSMo 1969, V.A.M.S., in the absence of fraud, mistake, undue influence or mental incapacity, a surviving joint tenant would become the owner of the joint account even though the deceased joint tenant furnished all of the funds and retained or intended to retain the beneficial interest in the account during his lifetime--thus recognizing the statutory alternative to a will. Since there is no contention or evidence here that the creation of the four accounts by Mr. Back was in any way defective, we conclude that the joint savings accounts with his children were valid testamentary arrangements. Thus, plaintiff's interest in the joint account with her father may be properly categorized as an 'expectancy' because the interest was subject to the lawful destruction at any time by Mr. Back's withdrawal of the funds on deposit. We recognize that the LaGarce case was ruled after the trial below and that LaGarce disapproved former decisions. Nevertheless, we are required to apply the correct rule on this appeal, even though counsel and the chancellor could not have been aware of it at the time the suit was heard. Dickey v. Nations, 479 S.W.2d 208 (Mo.App.1972).
The defendant contends that plaintiff-daughter's failure to join their then 97-year-old feeble and infirm father (now deceased) as a party in this suit is fatal and forecloses a court of equity from entertaining her claim for relief; and, in any event, her 'expectancy' is not subject to the protection which courts of conscience have never hesitated to afford one who has been fraudulently wronged. The facts of this case are such that we have no hesitancy in declaring the defendant a constructive trustee for the use and benefit of his sister to the extent of the funds withdrawn from the joint savings account, less any monies from such account which were in fact properly used for the support and maintenance of T. W. Back.
Prior to the withdrawal of the account in which plaintiff was a joint tenant with her father, the defendant and his brother, Tommie, had each withdrawn the savings accounts in which they were joint tenants with T. W. Back. The defendant had used the $4,000.00 he received from his joint account to pay off the indebtedness on his farm. At the time of the March, 1971, withdrawal of which plaintiff complains, the defendant also caused the withdrawal of the savings account which was in the name of his brother, Albert, and their father. The total withdrawals from the two accounts in March of 1971 amounted to $10,483.16 and defendant deposited these funds in his personal checking account--which at that time had a balance of $155.54.
According to the defendant the monies withdrawn from the two savings accounts in March of 1971 had been used for the living expenses of himself and his father but he could not produce any record or receipt of any money expended for the care medical bills or support of his father. Mr. Back also had a monthly income of $200.00 per month from Social Security and the Veterans Administration and defendant admitted cashing these checks and using such monies partly for his own personal benefit. In reply to the question 'It doesn't cost you more than two hundred dollars a month to keep and support your father, does it?' the defendant said 'No.' Three weeks before the trial of this case in July of 1972 there remained $4,320.13 in defendant's personal checking account in the Bank of Campbell from the more than $10,000.00 that was derived from the two savings accounts and defendant withdrew $4,000.00 from this account and deposited such sum in a Poplar Bluff bank in a joint account in his and his son's names.
The defendant admitted that since 1968 he had completely managed and controlled his father's business and affairs and had controlled him to the exclusion of all other persons and his father depended upon him to look after him. Defendant acknowledged that his father's physical condition was bad and weak in March of 1971. He said the only business transaction that his father handled was the withdrawal of the savings accounts in March of 1971. Mr. Back was not physically able to care for himself and could not read a newspaper, according to the defendant. Since his father moved in with the defendant, the father had never failed to do anything the defendant had asked him to do and Mr. Back relied wholly on the advice and suggestions of the defendant.
Portions of defendant's deposition were received as admissions against interest and are as follows:
'Q. Now, since 1968 have you managed and conducted your father's business affairs and handled his other transactions that needed to be taken care of?
A. Yes.
Q. Has there been anybody else that has handled any business or any other transactions for him other than you or your wife?
A. No.
Q. Would you say that your father since 1968 has looked to you and your wife to take care of him and handle his affairs?
A. Yes.
Q. And he has depended on you and your wife alone to look after him, hasn't he?
A. Yes.
Q. Would you say that you advised your father as to what he should do, give him advice as to his care and treatment?
A. Yes, I tell him to turn over so that I can wash him from behind and he does it.
Q. Would you say you and your wife have actually controlled him since he moved in with you in 1968?
A. Yeah, I help control him, yes.
Q. Continuously since 1968?
A. Yes.
Q. His physical condition now is bad, isn't it?
A. Pretty bad.
Q. He is bedfast most of the time, isn't he?
A. He can get up and get a hold of the bed post and get to his chair and we watch him so he won't fall.
Q. All right. And his physical condition in March of 1971 was bad too, wasn't it?
A. When he come out of the hospital?
Q. Yes.
A. It was pretty bad, yes, his physical condition. He was weak.
Q. He was weak and how long was he weak after getting out of the hospital?
A. Well, he is still weak.
Q. Well, back in March, 1971, he couldn't handle any business transactions, could he?
A. Yes.
Q. What kind of transactions could he handle?
A. He drew that money out of the Cape Girardeau Savings.
Q. Wasn't that at your suggestion?
A. No.
Q. What other transactions did he handle in March, 1971 besides drawing these two accounts out of the bank and turning the money over to you?
A. None.
Q. Well, in March, '71 and for a period of time before and after that he wasn't capable of looking after himself, was he, Mr. Back? Your father wasn't--
A. Physically you mean?
Q. Yes.
A. No he wasn't.
Q. And that is the reason you were taking care of him is because he couldn't take care of himself, isn't that right?
A. Yes.
Q. Your father can't see well, can he?
A. Well, he can see.
Q. He can't read a newspaper even with glasses, can he?
A. No, I don't believe he can hardly read a newspaper.
Q. How long has he been in that condition?
A. He can see enough to tell time.
Q. Was he able to read anything back in March, '71, put on glasses and read a newspaper then?
A. I don't think he could.
Q. Has your father ever failed to do anything you asked him to do since he moved in with you in 1968?
A. No.
Q. He is relying wholly on your advice and suggestions as to what he should do, isn't that true?
A. That is right, yes.'...
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