Opinion
No. 42347.
January 14, 1952. Motion for Rehearing or to Transfer to Court En Banc Denied February 11, 1952.
Harold Waxman, Jerome B. Stone, Kansas City, for appellant.
S. Ralph Stone, Independence, for respondent.
On this appeal Ardis D. Darrow, plaintiff, seeks to have a resulting trust declared in her favor as the sole owner of certain described real and personal property to which title had been taken by Howard B. Darrow, her former husband, defendant, and herself as tenants by the entirety or, in the alternative, for an accounting and partition of said property. The property involved consists of approximately ten acres of land in Jackson County, near Blue Springs, Missouri, on which are situate a dwelling, a small store and service station, and merchandise and personal property. The chancellor found the issues for the defendant, decreed the parties became tenants in common of undivided half interests in the property upon the entry of the decree of divorce, decreed an accounting, and ordered the sale of the property and partition accordingly, retaining jurisdiction to adjust the accounting in conformity with future developments prior to final disposition.
In 1938 plaintiff and defendant moved to New Jersey. At that time plaintiff put $1,200 she received from her grandfather's estate into the family funds. The business venture in New Jersey was not successful and they moved to Washington, D.C., late in 1938 or 1939. They were broke and defendant went back to his old trade of court reporting.
At first the children required plaintiff's attention but later she assisted defendant by doing his typing. They were more prosperous. Defendant maintained an account with the Munsey Trust Company of Washington, D.C., in his own name. By 1943 defendant had purchased the equity in two pieces of Washington real estate, and the title was taken in their joint names as estates by the entirety. Defendant sustained an injury and, after discussions between plaintiff and defendant, the bank account was changed in 1944 to the joint names of plaintiff and defendant, with the right of survivorship. The funds in this account were used as needed by the family.
In April, 1946, defendant went to Nuremburg, Germany, to do reporting work on the War Crimes Trials, and plaintiff accepted a position as a typist.
In May, 1946, plaintiff was severely injured by an automobile while crossing a street. Defendant thereupon returned to Washington. Plaintiff was hospitalized for seven months.
Plaintiff instituted suit and defendant joined therein. The petition did not segregate the damages claimed by each but in a pretrial conference the court fixed the special damages claimed by the husband to June 1, 1947, at $15,770.76.
After defendant's return the equities in the two Washington properties were sold and the net proceeds, around $3,000, were deposited in the joint account, and used to meet plaintiff's hospital expenses. A home was purchased. In October, 1947, they sold the home at a net profit of between $3,900 and $5,000. They purchased a more suitable home. The title in each instance was in their joint names as tenants by the entirety.
On March 1, 1948, the suit was settled for $45,000, payable in three installments, the last being due April 15, 1948. The three checks issued in payment of said $45,000 were payable to Mr. and Mrs. Darrow and their attorney. They were endorsed by Mr. and Mrs. Darrow; and the attorney, in making his accounting, issued his checks payable to them jointly, and said checks were deposited by them in their joint account in the Munsey Trust Company. After payment of attorney fees and $1,695.30 loaned to them by the attorney, they realized $32,054.70 out of the litigation.
Plaintiff testified marital troubles developed and she wanted to put some of the $32,054.70 away for the children's education and defendant objected seriously; that she discussed it in front of her attorney in Washington but, upon leaving, defendant stated he would make "millions" if she would let him handle it and not put it away for the children; and that she wanted to return to Kansas City and have a home near her family to raise the children.
Plaintiff and defendant also held the title to two automobiles in their joint names.
Plaintiff and defendant came to Kansas City to buy property. They contacted the W. H. Ballard Realty Company and on May 27, 1948, they, as husband and wife, executed a contract to purchase the property here involved. The price of the real estate was $18,500 and plaintiff and defendant paid the agreed upon earnest money of $1,850, plaintiff issuing her check against the account in the Munsey Trust Company for said $1,850. They also eventually paid $1,121.63 for the stock of merchandise and $687.37 for the equipment.
After securing a commitment for a loan they returned to Washington. They were notified the transaction would be ready for closing about July 20 and they moved the family and their furniture to Kansas City.
On July 22, 1948, plaintiff and defendant opened a joint account with the Commerce Trust Company of Kansas City. The signature card, executed by plaintiff and defendant, but which plaintiff said she did not read, recited that deposits therein were "owned by them jointly with the right of survivorship" et cetera. They transferred to the Commerce Trust Company account from the Munsey Trust Company account on July 22, 1948, $10,000 and on October 5, 1948, $5,000.
The deed here involved was to plaintiff and defendant, as husband and wife, and bears date of July 23, 1948. Plaintiff testified she did not read it. We understand they paid $8,809 cash on the total purchase price of $20,309, which payments were made out of deposits to their joint credit in the trust companies. The balance of the purchase price was evidenced by notes and two deeds of trust securing $11,500. The notes and deeds of trust were executed by plaintiff and defendant.
The first mortgage, securing $10,000, was given to the Blue Valley Federal Savings and Loan Association. W. R. Cockefair, Jr., acted for the association. He testified he saw plaintiff and defendant three times in connection with the loan; that all discussed the terms and conditions of the first mortgage loan, plaintiff as well as defendant; that defendant did most of the talking but not noticeably so, and witness' remarks were addressed to both of them.
They moved onto the property and started operating the store on July 29, 1948. Plaintiff testified that she, with the help of the children, operated the business thereon and kept up the payments on the mortgages, insurance, taxes, et cetera and supported the family.
Defendant testified, among other things, that plaintiff and he had worked together on all things until sometime after they returned to Kansas City; that the checks received in settlement of the litigation had been deposited in their joint account the same as they had always done; that he did not make up her mind for her; that he returned to Kansas City because she wanted to return; that she was with him at all times in transacting the purchase of the property here involved; and that after moving onto the property purchases were paid for out of their joint bank accounts and for their convenience they opened a third bank account in their joint names with survivorship rights with a bank at Blue Springs.
Plaintiff and defendant separated in October, 1948. Plaintiff withdrew $4,000 from the joint account in the Commerce Trust Company on October 20, 1948, and $1,000 from the joint account in the Munsey Trust Company on October 23, 1948, and $640 on December 3, 1948. She deposited these to her credit in a bank at Independence, Missouri. She left a balance of $815 in the Commerce Trust Company, which defendant withdrew. Plaintiff testified she thereafter gave defendant a total of $1,300, or possibly more, giving him $1,000 in cash at one time; and that she also used this money to keep up the monthly payments on the $10,000 mortgage against the property here involved, and payments on a mortgage against their real estate in Washington, D.C. The Washington real estate was later sold and plaintiff and defendant adjusted their interests therein. Defendant denied receiving the $1,000 cash from plaintiff, but admitted receipt of the other items.
Plaintiff obtained a divorce from defendant on March 31, 1949, in Jackson County, Missouri, and was awarded the custody of the three minor children and $100 a month for their support, on which defendant had made no payments.
Plaintiff contends defendant's portion of the $32,054.70 received by plaintiff and defendant on account of her injuries was $15,770.76, the amount fixed at the pretrial proceedings as the husband's special damages up to June 1, 1947; that a sum in excess of $15,770.76 was withdrawn from their joint account to meet the medical, hospital and other expenses occasioned by plaintiff's injuries and the living expenses of the family prior to the purchase of the property here involved; and that, as a result, said property was purchased by funds belonging to plaintiff as her separate estate, and no part of defendant's funds went into the purchase of said property, and, therefore, defendant holds his title in said property in trust for the use and benefit of plaintiff, plaintiff not having given her written assent to the taking of the title to said property in their joint names as tenants by the entirety, R.S. 1949, § 451.250, V.A.M.S.
We understand defendant does not question the contentions made by plaintiff: that moneys received by the wife for any violation of her personal rights are her separate property, R.S. 1949, § 451.250, V.A.M.S.; 41 C.J.S., Husband and Wife, p. 744, § 262; that the record does not establish a written assent contemplated by § 451.250 of plaintiff to defendant to reduce plaintiff's separate property to his possession, Herzog v. Ross, 358 Mo. 177, 213 S.W.2d 921, loc. cit. 929, 930; Messenbaugh v. Goll, 198 Mo.App. 698, 202 S.W. 265[4]; that presumptions arising from deposits in joint bank accounts with the right of survivorship may be rebutted, Clevidence v. Mercantile Home Bk. Trust Co., 355 Mo. 904, 199 S.W.2d 1, 6[5]; Thieman v. Thieman, Mo.Sup., 218 S.W.2d 580, 583[4, 5]; and that a resulting trust arises in favor of the wife where the husband has reduced her separate property to his possession without her written assent, Sanders v. Sanders, 357 Mo. 881, 211 S.W.2d 468, 470[1, 3] and cases cited; Moss v. Ardrey, 260 Mo. 595, 611, 169 S.W. 6, 10; Thieman v. Thieman, supra.
The record indicates that plaintiff is an intelligent woman. Her testimony shows that she and defendant established a joint bank account, with right of survivorship, in 1944; that they took title to several pieces of real estate and their automobiles as estates by the entirety; that she participated in the negotiations leading up to the purchase of the property involved and executed the notes and deeds of trust with defendant to secure the unpaid purchase price and did not question the deed conveying the property as an estate by the entirety. Plaintiff testified she was not able to do typing after her injury. Quite a number of deposits were made in their Munsey Trust Company joint account while plaintiff was hospitalized, some being for several hundred dollars and several in excess of $1,000, and payments were made therefrom for expenses incurred on account of plaintiff's injuries prior to the settlement of the litigation. The joint bank account refutes plaintiff's contention (whether otherwise legally sound or not) that only her separate funds were used in the purchase of the property involved. For instance: On the date of the contract of purchase, May 27, 1948, the balance in their joint account exceeded $24,000. The $11,500 unpaid purchase money was borrowed and loaned on the credit of plaintiff and defendant. Plaintiff was a femme sole with power "to carry on and transact business on her own account, to contract and be contracted with" et cetera with respect to her separate property and to do with it as she pleased. R.S. 1949, § 451.290, V.A.M.S. The rights of plaintiff and defendant in their joint bank deposits in this state, with the right of survivorship, as evidenced by the signature card executed by plaintiff and defendant covering their joint deposit in the Commerce Trust Company conforms to the statutory recognized rights of such depositors. See R.S. 1949, § 362.470, V.A.M.S.; Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079. Cash payments at the time of purchase were made out of said joint deposits.
This is not a case, as are the plaintiff's cases, of a husband taking funds entrusted to him by his wife to purchase property in her name and his taking title in his name or by the entirety, or a case involving merely the blank endorsement by the wife of a check or note due her and delivery of the instrument to the husband as was the situation in Messenbaugh v. Goll, 1908 Mo.App. 698, 202 S.W. 265[4], and cases there cited.
Parol evidence to establish a resulting trust must be so clear and convincing as to leave no doubt in the mind of the court as to its existence. Thieman v. Thieman, Mo.Sup., 218 S.W.2d 580, 583[3]; Aeby v. Aeby, Mo.Sup., 192 S.W. 97, 99[3]; Middleton v. Reece, Mo.Sup., 236 S.W.2d 335, 342[3]. The facts of the instant case sustain the trial court's decree. Aeby v. Aeby, supra; Milligan v. Bing, 341 Mo. 648, 108 S.W.2d 108; Frost v. Frost, 200 Mo. 474, 98 S.W. 527; Cisel v. Cisel, 352 Mo. 1097, 180 S.W.2d 748, 750[2]; Yates v. Richmond Trust Co., Mo.App., 220 S.W. 692, 693[2]. Consult Murphy v. Wolfe, supra.
The judgment is affirmed.
WESTHUES and BARRETT, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.