Opinion
No. 21837.
June 1, 1953.
APPEAL FROM THE CIRCUIT COURT, CLAY COUNTY, JAMES S. ROONEY, J.
Simrall Simrall, James S. Simrall, Jr., and Julia C. Simrall, Liberty, for appellants.
L. M. Bywaters, Arthur R. Kincaid, and Lawson, Hale Coleberd, all of Liberty, for respondent Clark.
Plaintiff, Clay County State Bank, a banking corporation, had among its deposits the sum of $1,500, same being the remaining balance of funds originally on deposit in said bank to the credit of James C. Shelton, deceased (represented here by defendant Ernest Wharton, administrator), Eva E. Shelton, deceased, former wife of J. C. Shelton (represented here by R. L. Clark, her administrator), and Lillian C. Simrall, daughter of J. C. Shelton.
Mr. Shelton died on February 22, 1950 and, thereafter, the administrator of his estate, and each of the surviving depositors claimed the entire fund. Plaintiff instituted this suit by bill of interpleader, as a disinterested stakeholder, and tendered the money into court. Plaintiff prayed the court to determine and adjudge the ownership of said fund, to allow plaintiff its attorney fees and costs, and to discharge it from further liability.
The action was tried in equity. The court sustained the bill of interpleader and adjudged: that plaintiff be allowed the sum of $200 as and for its attorney fees herein; that the balance of the account, $1,300, be paid to the estate of Mrs. Shelton; and that the costs be paid by defendants Ernest Wharton and Lillian C. Simrall. Defendant Simrall prosecutes this appeal.
This being an equity case we will review it de novo and, subject to the rule of deference, reach our own decision on the law and the evidence. Peikert v. Repple, 342 Mo. 274, 114 S.W.2d 999, 1002; Ver Standing v. St. Louis Union Trust Company, 344 Mo. 880, 129 S.W.2d 905, 907.
Mr. and Mrs. Shelton were married August 14, 1935, and lived as husband and wife until Mrs. Shelton died, February 22, 1950. It was the second marriage for both, but no children were born of this marriage. Mr. Shelton was engaged in the real estate business in Excelsior Springs and Mrs. Shelton worked in his office, assisting him, and also engaging in making income tax returns for various clients, selling driver', automobile, hunting and fishing licenses. They occupied the same office and established and maintained a joint bank account, with right of survivorship, in plaintiff's bank. Each had executed a signature card. Proceeds of the earnings and income of both were deposited in this account, and each wrote checks thereon. This was the situation until Mrs. Shelton suffered a stroke, on April 2, 1947. From that date until the death of Mr. Shelton, checks were written on, and deposits made in, this account by Mr. Shelton alone. Defendant Simrall made no deposits in the account or wrote any checks thereon, at any time. Mr. Shelton was in ill health and underwent two operations and had three blood transfusions during the time of the illness of Mrs. Shelton. Mrs. Shelton went to California, some months prior to Mr. Shelton's death, and remained there until he died.
Mrs. Shelton testified by deposition to the effect that she and Mr. Shelton kept and maintained the above-mentioned account, in the manner stated, for several years prior to her illness in April, 1947, and that she never knew, until after Mr. Shelton's death, that the name of defendant Simrall had been added to the account.
Mr. Heberling, plaintiff's vice president and cashier, testified to the effect that both Mr. and Mrs. Shelton had signed deposit cards establishing the account; that funds of both were deposited therein for many years; that the account remained in the names of J. C. and Eva E. Shelton, until "Sometime after July, 1949"; that Mr. Shelton came into the bank and told witness that "he wanted to add Lillian C. Simrall's name to the account due to the fact that he was ill and Mrs. Shelton was ill and he didn't — he was afraid he would get in the hospital somewhere and not be able to write a check, or she wouldn't be able to, and at that time * * *. Then he could have Lillian Simrall to write a check, take care of his hospital or expense that he might have"; that he did not say that Lillian Simrall could have a part or all of said money in the event of his death; that he gave Mr. Shelton a signature cards were executed by Mrs. Simrall but it was never returned; that no signature cards were executed by any of the parties to the new account; that the name of defendant Simrall was added to the account upon the oral instruction of Mr. Shelton; that defendant Simrall never made a deposit in or wrote a check on said account prior to Mr. Shelton's death; that Mr. Shelton continued to write checks thereon, which checks were cashed; that "we have nothing to show what belongs to all three parties to the account or nothing that they couldn't check on it"; that shortly after the bank opened, on February 23, 1950, after Mr. Shelton's death, Mrs. Simrall came in and asked about the account; that the ledger sheet was inspected by witness and appellant; that it showed a balance of $1,895.76; that appellant was informed that plaintiff had no legal advice to the effect that it could, legally, pay out funds of a "three name" account on the check of any one survivor; that she and witness agreed to set aside $1,500 of the account, to be held pending determination of the bank's rights and obligations with regard thereto; that she signed a check drawn on the account, for $1,500; that a deposit slip was made out for said amount, which is as follows: "Deposited with Clay County State Bank by Clay Co. State Bk. Escrow." which instrument was in evidence; that Mrs. Simrall was given a receipt, upon which appears the word "Escrow," which receipt was in evidence; that thereafter, the $395.76 balance was paid out; and that, thereafter, claim and demand was made on plaintiff, by each of the three claimants herein, for payment of the $1,500 fund here in controversy.
Mrs. Simrall testified in the course of the trial, but such testimony is not materially contradictory of, or at variance with the above. We find the above to be the material facts in the case, as disclosed by the whole record.
Appellant contends that plaintiff did not make out a proper case for application of the law, under a bill of interpleader, and should not be adjudged to be a disinterested stakeholder entitled to a judgment ordering payment of the funds into court for adjudication, and to an allowance for attorney fees and costs. She contends that plaintiff was required to pay out this account, to either of the survivors, upon check, under the provisions of Section 362.470, RSMo 1949, V.A.M.S. The statute does not so provide in clear terms, as to accounts in the names of more than two depositors; nor does it appear that an unconditional demand for payment to her was made by appellant prior to notice on behalf of each of the other defendants that each claimed the entire balance of the fund. To the contrary, the documentary evidence indicates that appellant, on February 23, 1950, conceded that there was a serious legal question as to who had the right to receive the money here in controversy. By agreement between plaintiff and defendant the $1,500 was placed in plaintiff's bank "by Clay Co. State Bk. Escrow," and appellant was, at that time, given a receipt therefore, marked "Escrow."
Under the circumstances appearing here, we will treat the fund in controversy as now forming a part of the original account, as it did prior to its conditional withdrawal therefrom.
There is no question but that, under the facts of this case, interpleader lies. Plaintiff held a fund to which it claimed no right or title. Three different people had, severally, demanded its delivery. Plaintiff was, therefore, entitled to seek relief from a double vexation on account of its single liability. 30 Am.Jur. page 215, par. 3; Buerger v. Costello, 240 Mo.App. 1194, 226 S.W.2d 610, 611; Section 507.060 RSMo 1949. V.A.M.S., Note 1.
It is not necessary to discuss what the liability of plaintiff would have been to one survivor had it paid out the money in this "three name" account on the check of another of the two survivors. It did not so pay.
In approaching a disposition of this case it is noted that the Missouri statute makes no provision governing joint bank deposit accounts with right of survivorship involving more than two depositors. Appellant argues that we may construe the singular used in the statute, to include the plural. She cites Vol. 2, Paton's Digest, page 1690, 14B. However, we think it is unnecessary to engage in that mental exercise in this case, since the money is still in the hands of the bank and no question of its liability to either party is involved, as might have been the case had it been paid to either Mrs. Shelton or Mrs. Simrall.
Nor need we consider the fact that Mrs. Shelton had no knowledge of the inclusion of Mrs. Simrall in the named depositors. That point might or might not have been material if plaintiff had paid the money to Mrs. Simrall.
Appellant's position is that the law applicable to conventional "two name" accounts is applicable to the case at bar. It is only upon that theory that she claims the account; and she urges that theory strongly on the ground that, since Mrs. Shelton is now dead, she, appellant, is the sole survivor.
The creation of a joint account in the names of two persons, with the right of survivorship, establishes a presumption of joint ownership in the fund. Melinik v. Meier, Mo.App., 124 S.W.2d 594, 597, and cases there cited; Gordon v. Erickson, 356 Mo. 272, 201 S.W.2d 404. However, it is also well settled that such a presumption may be overcome, as between the depositors or their representatives, by competent evidence showing a contrary intention. Melinik v. Meier, supra.
In Commerce Trust Company v. Watts, Mo.App., 222 S.W.2d 937, 939, we held that proof of a deposit made by one for the use of himself and another, with the right of survivorship, raises a presumption that the survivor takes absolute title upon the death of the donor; and that this presumption may be overcome by any competent evidence, including parol evidence, tending to overcome such presumption. To the same effect see Weber v. Jones, 240 Mo.App. 914, 222 S.W.2d 957, 959.
The testimony of Mr. Heberling was to the effect that Mr. Shelton gave as his reason for having requested that the name of appellant be added to the account, the fact that he was ill, that Mrs. Shelton was ill, and that he, Mr. Shelton, might get into a hospital and be unable to write a check to take care of his needs, and that Mrs. Shelton (who was then seriously ill and in California) might be unable to write a check; that by changing the account it would make it possible for appellant to write checks for his benefit. Such positive statement of purpose and intent negatives any presumption of intent to vest appellant with any real title. Other evidence may be considered to corroborate and substantiate this declaration of intent, to-wit: Mr. and Mrs. Shelton had deposited their separate earnings in joint accounts at this, and another bank for many years; each checked thereon; all expenses of both were paid from these accounts; Mr. Shelton told Mrs. Shelton shortly before she left for California that she was to check on their account for travel money if anything should happen to him; and this account constituted donor's sole remaining asset at the time of his death, he having deeded certain property to appellant. Considered as a whole the testimony constitutes substantial proof that appellant was named on the account merely for the convenience of the donor, to have some one at hand capable of signing checks on the account, in the event of his mental or physical incapacity. Such evidence raises a fact question for determination. In re Geel's Estate, Mo.App., 143 S.W.2d 327, 330. The chancellor found, in effect, that Mr. Shelton did not, in fact, transfer title to appellant. That conclusion is fully supported by the evidence, and the judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.