Wantuck v. United Sav. & Loan Ass'n

• Decision Date: 11 January 1971
• Docket Number: No. 54960,54960
• Citation: 461 S.W.2d 692
• Parties: Charles M. WANTUCK, Executor of the Estate of Louis H. Mengerhausen, Deceased, Plaintiff-Appellant, v. UNITED SAVINGS AND LOAN ASSOCIATION, Defendant, and St. John Evangelical and Reformed Church, a Corporation, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 692

461 S.W.2d 692

Charles M. WANTUCK, Executor of the Estate of Louis H Mengerhausen, Deceased, Plaintiff-Appellant, v. UNITED SAVINGS AND LOAN ASSOCIATION, Defendant and St. John Evangelical and Reformed Church, a Corporation Defendant-Respondent.

No. 54960.

Supreme Court of Missouri, En Banc.

Jan. 11, 1971.

Charles M. Wantuck, Springfield, for plaintiff-appellant.

Neale, Newman, Bradshaw & Freeman, Jean Paul Bradshaw, Joseph A. Bohrer, Richard Owensby, Springfield, for defendant-respondent, St. John Evangelical and Reformed Church--The United Church of Christ.

ROBERT G. BRADY, Special Judge.

This is a declaratory judgment action brought to determine the ownership of a $10,000.00 investment account represented by a certificate issued by United Savings and Loan Association (hereinafter referred to as United) reading: '* * * Louis H. Mengerhausen and St. John Evangelical and Reformed Church, the United Church of Christ, as joint tenants with right of survivorship.' Mr. Mengerhausen is deceased and defendant claims the account as a surviving joint tenant. Plaintiff is deceased's executor. The trial court found for the church. The Springfield Court of Appeals reversed that judgment. On application this court ordered the cause transferred.

The deceased had established this savings account in 1963. On April 15, 1966 he signed a letter addressed to United reading: 'I hereby authorize you to add St. John's Evangelical and Reformed Church--The United Church of Christ to Savings Account No. 1814. This leaves the account to read Louis H. Mengerhausen and St. John's Evangelical and Reformed Church--The United Church of Christ, as joint tenants with right of survivorship.' ¹

In July of 1966, on United's advice that a different type of account would make a more profitable investment, deceased had the account changed to what is known as an investment account. At that time a certificate was issued to 'Louis H. Mengerhausen and St. John's Evangelical and Reformed Church, The United Church of Christ, as joint tenants with right of survivorship.' There was no written authority to issue this certificate in joint names, but the certificate bears a notice on the upper left corner 'Replace Sa. #1814. Div. fr. 7--1--66.' The certificate was delivered to deceased who put it in his safety deposit box where it was found after his demise.

When he established the original savings account deceased signed a signature card. United's rules did not require both parties to a joint account to sign the signature card or require a new card when the account was changed from a single owner or when the savings certificate was changed to an investment account. The church never signed nor saw such a card for this account. United issues only one certificate to each joint account. Surrender of that certificate with proof of identity is required to obtain payment. United made the checks representing the interest on the account solely to deceased until informed of his death. The evidence is undisputed that the church knew nothing of this transaction never having seen the certificate or been informed of its existence or deceased's actions in any manner until October of 1967. Deceased's death had occurred in December of 1966.

The church contends deceased's actions created a joint tenancy and that as the surviving tenant it is entitled to ownership of the funds represented by the certificate. Plaintiff contends there was no completed inter vivos gift by the deceased to the church with the result that the parties are not joint tenants with right of survivorship.

Joint tenancy is not a doctrine favored in the United States, and the common law rule that a conveyance to two or more persons was deemed to create a joint tenancy with right of survivorship unless a contrary intent appeared has been generally abrogated. ² The parties here involved cannot be joint tenants unless that relationship arises as the result of the deceased-donor's action in directing United to place the church's name upon the certificate; in short, only as the result of a valid inter vivos gift. ³

The essentials of an inter vivos gift of personal property were stated in Thomas v. Thomas, 107 Mo. 459, 18 S.W. 27, l.c. 28, quoted with approval in Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135, l.c. 144, and more recently in In re Estate of Simms, Mo., 423 S.W.2d 758, l.c. 762(2). They are: '* * * a present intention to make a gift on the part of the donor, a delivery of the property by the donor to the donee, and an acceptance by the donee, whose ownership takes effect immediately and absolutely.'

All of these elements must be present and the absence of any defeats the gift. As we view this case the real dispute is as to the requirement of delivery and the immediate and absolute ownership by the church. While no particular form is necessary to effect delivery (that element being intended only to evidence the purpose of the grantor to give effect to the instrument, Rumsey v. Otis, 133 Mo. 85, 34 S.W. 551, l.c. 553), the law requires a completed delivery of the subject matter of the gift or of the document evidencing that subject matter. Napier v. Eigel, 350 Mo. 111, 164 S.W.2d 908, l.c. 911, specifically holds: 'A mere uncompleted intention to grant an interest at death, or at some time in the future, or upon the happening of some contingency is not enough. Nor do we think that proof of intention alone, even to grant a present interest, would suffice without proof of conduct showing the carrying out or fulfillment of that intention. Since the claimed donation would be beneficial, it may be that acceptance by respondent could be presumed even though she was without knowledge of it. Also, it is true that one joint owner may hold property for the benefit of all the joint owners. Yet, we think it was necessary to show a delivery of the property by Dr. Napier, actual, constructive or symbolical, by showing some conduct on her part indicating a change of the character of her possession from that of sole owner to that of a co-tenant.' (Emphasis supplied.) The case also holds that the principles governing a gift of the property are equally applicable to that of the grant of an interest therein.

The church contends that under the circumstances of this case delivery was unnecessary. It relies upon Commonwealth Trust Co. v. Du Montimer, 193 Mo.App. 290, 183 S.W. 1137, where at l.c. 1139 it is said: 'In 14 Am. & Eng. Ency. of Law (2d Ed.) p. 1019, it is said: 'Where one person gives to another a joint interest in property with himself, no delivery to the donee is necessary, the possession of the donor being also that of the donee. * * * " This quotation does not bespeak a rule contrary to that stated in Napier, supra, but instead has reference to the exception recognized in that line of cases exemplified by Rumsey v. Otis, supra, to the effect that in determining whether there has been a valid delivery the law will presume much more in favor of the presence of that element '* * * in cases of voluntary settlements in favor of a wife, child, or near relative than it does in ordinary cases of bargain and sale between strangers. (Citing cases)' In Napier, supra, the court put the quotation upon which the church relies in proper perspective as an exception to the quantum of proof required to show delivery in those cases involving parties within a family relationship by holding the authorities cited in 14 Am. & Eng.Ency. of Law have reference only to situations involving that relationship. ⁴ It follows that cases such as Commonwealth Trust Company v. Du Montimer, supra, and Longacre v. Knowles, supra, must be read in the light of the fact that a family relationship existed between the donor and donee, and absent such circumstances do not constitute authority to support the contention for which they are cited. Napier further held the rationale for the requirement of delivery was public policy so as to prevent mistake, imposition and perjury. We hold there must be delivery to sustain a valid inter vivos gift and that exception to the general rule requiring delivery allowing for a presumption as to the presence of that element in cases where a family relationship exists should not be extended to the parties in the instant appeal.

It follows that a delivery, be it actual, constructive or symbolic, is necessary before a valid inter vivos gift can be consummated and that the test to determine the existence of an actual constructive or symbolic delivery is that there must be some conduct on the part of the donor indicating a change in the character of his possession from that of sole owner to that of joint tenant.

This record is totally devoid of any evidence of such conduct on the part of the deceased. It is undisputed that United under its rules issued only one certificate and that the surrender of that certificate was required to obtain payment of the amount evidenced thereby. It is likewise undisputed that the deceased kept possession of the certificate. Under such circumstances there was no loss of power or dominion by the deceased over the account so as to indicate a change of the character of his possession from that of sole owner to that of joint tenant. At any time after the alleged gift and prior to his death deceased could have surrendered the certificate and demanded payment of any or all the money to him, and United would have had no alternative but to so pay. He could have done what he wished with the money even to the extent of taking out another certificate, worded in the same language as that involved here but with another party's name substituted for that of the church. Deceased surrendered nothing--literally or figuratively.

It is equally clear deceased's conduct did not confer any dominion over the certificate upon the church. As previously indicated, the church did not have the certificate and thus could not have required United to pay any portion of the account to...