Smith v. Thomas
| Decision Date | 25 February 1975 |
| Docket Number | No. 9678,9678 |
| Citation | 520 S.W.2d 132 |
| Parties | Robert J. SMITH, Administrator of the Estate of Deanie C. Kracke, Deceased, Appellant, v. Dana THOMAS, Respondent. |
| Court | Missouri Court of Appeals |
A. Ronald Stewart, Springfield, for appellant.
Kerry L. Montgomery, Springfield, for respondent.
Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.
Appellant-administrator has appealed from the judgment of the Circuit Court of Greene County that the Estate of Deanie C. Kracke was not entitled to the proceeds of a certificate of deposit, a savings account, and a checking account, and that respondent Thomas was the owner thereof as a surviving joint tenant. We conclude otherwise and reverse.
Following Mrs. Kracke's death on January 26, 1969, her will was admitted to probate and letters testamentary issued to the respondent. Some time prior to June 21, 1971, the circuit court adjudged the will to be invalid for lack of proper attestation and revoked respondent's appointment as executor. Appellant was appointed administrator of the estate and initiated proceedings to discover assets under § 473.340, RSMo 1969, V.A.M.S., alleging respondent 'wrongfully withheld and has in his possession or under his control or has converted to his own use' bank deposits 'totalling $15,121.06.' In answers to interrogatories the respondent claimed the bank deposits had been 'given to Dana Thomas in exchange for care by Dana Thomas and Ottobelle Thomas (his wife) for the remainder of the life of Deanie C. Kracke after 1967 and for services rendered to her and her late husband for five years prior to the death of Frank Kracke.'
The probate court found the issues in favor of the administrator and entered judgment against the respondent for the total sum of the three deposits. The court ruled the deposits were the sole property of the decedent at the time of her death and that the evidence failed to establish gifts of the deposits to the respondent or that he was a surviving joint tenant.
On appeal to the circuit court the cause was submitted on a stipulation of facts. This included the administrator's interrogatories and respondent's answers thereto, the detailed findings and judgment of the probate court, and the documentary exhibits pertaining to the three bank deposits. It was also stipulated that respondent was claiming ownership of the proceeds from the three bank deposits by way of a gift or as a surviving joint tenant. There was no dispute between the parties that the proceeds from the three bank deposits came into the hands of the respondent during the period he was serving as executor of the decedent's estate and that the deposits or proceeds were never at any time inventoried by him as assets of the estate.
The circuit court's judgment determined that the respondent was the owner of the proceeds of the three deposits as the survivor of statutory joint tenancies created pursuant to § 362.470, RSMo 1969, V.A.M.S. In this appeal the respondent has abandoned his theory of gift and seeks affirmation of the lower court's judgment on the basis of his being a surviving joint tenant of the deposits. Appellant-administrator contends the deposits are not within the purview of § 362.470.
In this court-tried case we review the judgment of the circuit court upon the law and the evidence as in suits of an equitable nature. Rule 73.01(3a), V.A.M.R. Nevertheless, our review being de novo, we reach our own conclusions upon the law and the evidence and give such judgment as should have been given if we decide the judgment is clearly erroneous. Kearney Commercial Bank v. Deiter 407 S.W.2d 575 (Mo.App.1966). Since the issues herein were submitted to the trial court upon a stipulation of facts and documentary evidence the credibility of witnesses is not here involved and our review of the facts and law is not limited. Rule 73.01(d); Security Trust Company v. Sherwood Homes, Inc., 436 S.W.2d 776 (Mo.App.1968).
The certificate of deposit. On May 17, 1967, the Farmers & Merchants Bank of Springfield, Missouri, issued a $10,000.00 certificate of pdposit to Deanie C. Kracke, made payable to 'Herself or Dana Thomas, Executor.' On May 16, 1969, the respondent presented this certificate for redemption and received $10,253.16--principal plus unpaid accrued interest. The certificate was endorsed 'Dana Thomas.'
The savings account. This account was opened May 17, 1967, at the Farmers and Merchants Bank with a $5,000.00 deposit by Mrs. Kracke. The front of the signature card for this account listed the account in the name of and was signed only by her in the space for authorized signature. Subsequently, 'ONLY' was struck through and the words '& Dana Thomas, Exc' added to the front side of the card. At that later time the signature of 'Dana Thomas, Exuctor (Sic)' was appended to the reverse side of the card underneath the following printed agreement:
'JOINT ACCOUNT--PAYABLE TO EITHER OR SURVIVOR
We agree and declare that all funds now or hereafter, deposited in this account are, and shall be our joint property and owned by us as tenants with right of survivorship, and not as tenants in common; and upon the death of either of us any balance in said account shall become the absolute property of the survivor. The entire account or any part hereof may be withdrawn by, or upon the order of either of us or the survivor.
'It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives.'
Two printed lines for signatures followed the foregoing agreement with 'Dana Thomas' written on the top line and 'exuctor' (Sic) on the second line. Mrs. Kracke never signed this agreement.
The bank's ledger sheet for the savings account was originally in the name of 'Deanie C. Kracke (ONLY),'. Sometime later it was changed by striking four dollar signs over the word, 'ONLY' and adding 'or Dana Thomas, Exc.' A label affixed to the sheet bears the signatures of Deanie C. Kracke and Dana Thomas, Exc. Interest on this account was withdrawn periodically so that on January 2, 1969, the balance was $5,101.69. On that date $1,101.69 was withdrawn and deposited in the checking account, infra, to provide ready funds for Mrs. Kracke's maintenance or, as respondent stated in his answers to interrogatories, 'for convenience of paying bills prior to the death of Deanie C. Kracke.' On April 28, 1969, the respondent withdrew the balance of the savings account, $4,050.40.
The checking account. On April 4, 1946, a checking account was opened at Farmers & Merchants in the names of 'Kracke Frank of Deanie.' Both Frank and Deanie signed in the spaces for authorized signatures on the front of the card but neither signed the reverse side which had a provision for ownership of the account as joint tenants with right of survivorship. The printed agreement was identical to the one set forth above with certain additions not here pertient. On April 13, 1959, Frank and Deanie gave effect to this provision by affixing their signatures to this clause as it appeared on a second signature card. Frank Kracke died sometime before May 17, 1967, and thereafter an undated signature card, identical to the other two for the account, was signed only on the front side by Mrs. Kracke and the respondent in the spaces for authorized signatures. This card listed the account 'Kracke Deanie or Dana Thomas.'
The bank's ledger sheets for this account show that sometime after December 27, 1967, the respondent's name was added thereto so that it read 'Frank Kracke or Deanie or Dana Thomas.' Between May, 1967, and the death of Mrs. Kracke, respondent wrote a few checks on this account to pay for groceries and care and maintenance for her. On the date of Mrs. Kracke's death there was $817.53 in the account. Thereafter, the respondent drew three checks on the account. The first check was written on February 21, 1969, to Mercy Villa for $56.35 and signed 'Deanie C. Kracke by Dana Thomas, Executor.' The second, dated April 27, 1969, was to Ayre Goodwin Funeral Home in the sum of $228.10, and signed the same way. 1 The third check, payable to respondent in the sum of $533.08 (the balance of the account), count), was dated June 12, 1970, and signed in a like fashion.
Not all deposits in the names of two or more persons are 'joint deposits' within the meaning of § 362.470 although they may be so referred to in common parlance. Melton v. Ensley, 421 S.W.2d 44, 52 (Mo.App.1967). A statutory joint tenancy, such as the lower court found in the bank deposits involved in the present case, is created only 'When a deposit is made by any person in the name of the depositor and any one or more other persons . . . and in form to be paid to any one or more of them, or the survivor or survivors of them . . .' § 362.470 RSMo 1969, V.A.M.S. Since each of the deposits in controversy is in the names of the depositor and another person, we must look to 'the form, manner and circumstances under which (each) joint bank account was established and maintained' to determine the applicability of § 362.470. Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, 396 S.W.2d 570, 579 (Mo. banc 1965). Expressed in the language of the statute, the issue as to each deposit or account is whether the same is 'in form to be paid to any one or more of them, or the survivor or survivors of them.'
The certificate of deposit issued to Mrs. Kracke and made payable to 'Herself or Dana Thomas, Executor' is not within the purview of § 362.470. As was said in Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079, 1081 (banc 1932): ...
To continue reading
Request your trial
-
King's Estate, In re, s. KCD
...King, Agnes King or David Smith, either/or survivor." in so ruling. The cases of Ison v. Ison, 410 S.W.2d 65 (Mo.1967), Smith v. Thomas, 520 S.W.2d 132 (Mo.App.1975), and Matter of Estate of Bonacker, 532 S.W.2d 898 (Mo.App.1976), relied upon by the Administrator are factually inapposite. I......
-
Stillings v. Citizens Bank of Ava, 12208
...not in statutory form. Ison v. Ison, 410 S.W.2d 65 (Mo.1967); Matter of Estate of Bonacker, 532 S.W.2d 898 (Mo.App.1976); Smith v. Thomas, 520 S.W.2d 132 (Mo.App.1975). The interests of the parties must be determined upon the basis of the indicium of ownership that was issued and circumstan......
-
Estate of Huskey v. Monroe
...never, to our knowledge, been construed to authorize two alternative methods of creating a statutory joint tenancy. Smith v. Thomas, 520 S.W.2d 132, 136[4, 5] (Mo.App.1975). We must presume the General Assembly knew In part, the defendants' "plain meaning" argument is an argument that becau......
-
Case v. Universal Underwriters Ins. Co.
...Meyers v. Smith, 375 S.W.2d 9 (Mo.1964); Mid-Continent Nat'l Bank v. Bank of Independence, 523 S.W.2d 569 (Mo.App.1975); Smith v. Thomas, 520 S.W.2d 132 (Mo.App.1975). In order to arrive at the controlling issue in this appeal, a history of the various transactions involving the 1965 Corvai......