Opinion
No. 21773.
February 2, 1953
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, JOHN R. JAMES, J.
Charles V. Garnett and Richard A. Erickson, Kansas City, for appellant.
Rufus Burrus, Independence, Llewellyn Jones, Independence, Guy W. Green, Jr., Kansas City, for respondent.
Mae Rayborn died testate June 17, 1947, and plaintiff, Stanley Gregg, was appointed administrator with will annexed of her estate. On July 11 her safe deposit box at the First National Bank of Independence, Missouri, was entered for the purpose of making an inventory. Among her papers were four certain envelopes containing currency and bonds. One sealed envelope contained $2,000 in currency and had written in ink across its face, in the handwriting of Mrs. Rayborn, the words, "Property of Jessie Page, 628 N. Delaware Street"; another sealed envelope contained $1,900 in currency and had written on it in pencil, in the handwriting of Mrs. Rayborn, the words, "This is the property of Jessie Page, 628 N. Delaware St., Independence, Mo."; another other unsealed envelope contained five $100 three per cent U.S. Government coupon bonds issued to bearer in 1931. On this envelope was written by Mrs. Rayborn, "This is the property of Jessie Page, 628 N. Delaware, Independence." The fourth envelope contained $1,680 in currency and had written thereon by Mrs. Rayborn, in pencil, the words, "This is the property of Fay Starrett, Lancaster, Missouri, brother of Mae Rayborn." All of this currency and the bonds were inventoried as assets of Mrs. Rayborn's estate.
Thereafter, the administrator filed a petition in two counts, the first of which sought construction of certain clauses of Mrs. Rayborn's will and the second sought a determination of the ownership of the bonds and currency contained in the envelopes just described. The issues presented in the first count are not involved on this appeal and we need not consider it further. The second count, among other allegations, recited the facts concerning the four envelopes and contents found in the lock box, and that the administrator was uncertain and in doubt relative to the ownership of such property and requested the court to require Jessie Page and H.C. Burkland, executor of the estate of Fay Starrett, deceased, to set up any claim and right, if any they had, to said bonds and currency.
Jessie Page filed answer claiming to be the owner of the contents of the envelopes bearing her name. The executor of the estate of Fay Starrett filed answer alleging that Mae Rayborn had made no delivery during her life to Fay Starrett or to Jessie in count two, and if any gift was intended or attempted it was ineffective to pass title or any interest therein to either of those persons and was wholly void, and that the title to such property was vested in plaintiff as administrator of Mae Rayborn's estate.
All the evidence relative to the issues of count two was introduced by plaintiff.
Stanley Gregg testified that he was vice-president of the First National Bank of Independence and had been connected with the bank for 46 years; that he had been appointed administrator with will annexed of the estate of Mae Rayborn whom he had known for many years; that she and her husband were, for many years, customers of his bank; that the safe deposit box in question was originally leased by the bank to Mae Rayborn and her husband; that Mr. Rayborn died in 1934, and since that time Mae Rayborn was the sole lessee of the box and did not, during her life, designate anyone except herself to have the right of entry thereto; that the bank's records disclosed that no one had ever entered the box or had access to it except Mae Rayborn subsequent to her husband's death; that Mrs. Rayborn was a good businesswoman who had investments in real estate and lent money, principally on real estate; that as she collected money on loans she would deposit it in his bank and always carried a substantial balance, averaging $3,000 to $5,000; that she also had an account at the Chrisman-Sawyer Bank in Independence, and a small account at a Pleasant Hill, Missouri, bank. He identified the four envelopes and contents, as above described, and stated that the writing on each envelope was the handwriting of Mae Rayborn.
The contents of the envelope containing $2,000 in currency consisted of three packages of $100 bills, each totaling $500, and one package of $50 bills, totaling $500, all in wrappers furnished by his bank; that the three packages of $100 bills bore the date stamped on the wrapper by the bank of "May 22, 1947," but the package of $50 bills bore no date; that the records of the bank showed that Mrs. Rayborn entered her deposit box on "May 22, 1947"; that the bank always stamps the date on the wrappers on the day the currency is received by the bank and wrapped in packages.
The $1,900 found in another envelope consisted of two packages of $20 bills containing $500 each, in wrappers of his bank. One package was dated "April 7, 1941," and the other "April 8, 1941." The balance of the money was in loose currency consisting of thirty-two $20 bills, twenty-eight $10 bills and two $5 bills.
The unsealed envelope contained five $100 three per cent U.S. Government coupon bonds issued to bearer in 1931. The last interest coupons removed were the ones due in September, 1942. All others were attached to the bonds.
The fourth envelope, with the name of Fay Starrett thereon, contained $1,680 in currency and consisted of three $500 packages of $20 bills, one of which was dated "April 7, 1941," and the other two were dated "April 6, 1944." The balance of the currency in that envelope was unwrapped and consisted of seventeen $10 bills and two $5 bills.
In addition to the four envelopes and contents in controversy, the deposit box contained some insurance policies, jewelry, five or six mortgage loans and other papers belonging to Mrs. Rayborn.
Mr. Gregg testified that he knew Jessie Page; that she taught in Chrisman High School in Independence; that she lived at the home of Mae Rayborn from 1938 until Mrs. Rayborn's death in 1947; that Miss that it was closed for a time and was reopened in 1941; that she did not deal in loans or business of any kind except teaching school; that her bank account averaged between $500 and $600; that her account did not show any withdrawal of as much as $500 at any one time; that he had seen Mrs. Rayborn and Miss Page come into the bank together, and also come in alone; that Miss Page did not claim the money and bonds at the time the box was opened, but at a later date "I think that she probably asked when we were going to get this settled up, when I was going to turn that money over to her."
Mr. Burkland testified that Fay Starrett, a brother of Mrs. Rayborn, died in October, 1948, and that he had been appointed executor of Starrett's estate; that he was present when the deposit box was opened, and that Jessie Page was also present and, when asked if she had requested that the envelopes containing the money and bonds be turned over to her, he replied: "I don't believe I can answer that because I might not have been sitting close enough to her to hear anything that she said. Q. You didn't hear her say anything? A. No, sir."
At the close of plaintiff's evidence the attorney for defendant Jessie Page inquired of the attorneys representing the estates of Mrs. Rayborn and Fay Starrett whether they would waive disqualification of Jessie she had with Mae Rayborn. The request was denied. There was no further offer of evidence by Jessie Page.
At the close of all the evidence relative to count two, the court found that the four envelopes in question were never delivered during the lifetime of decedent either to defendant Jessie Page or to the said Fay Starrett or to anyone else for them; that at no time did decedent ever declare or create or intend to declare or create any trust as to the bonds and currency for the benefit either of defendant Jessie Page or the said Fay Starrett; that decedent did not in anywise divest herself of ownership of any of the bonds and currency; that all of the bonds and currency were owned by and were in possession of decedent at the date of her death and passed as part of the personal assets of her estate into the hands of the plaintiff herein as administrator; that neither Jessie Page nor defendant H.C. Burkland as executor of the estate of Fay Starrett, has any right, title, claim or interest in or to the bonds or currency, subject only to the right of defendant H.C. Burkland as executor to participate in the final settlement and distribution of the assets of deceased, Mrs. Rayborn. Judgment was entered accordingly.
Jessie Page perfected her appeal and urges that the trial court erred in finding that the money and bonds in the three envelopes bearing her name were the property of Mae Rayborn at her death.
It must be kept in mind that, under the pleadings and trial theory, Jessie Page claims this property as her own, and that it never belonged to Mrs. Rayborn; therefore, cases involving gifts causa mortis or gifts inter vivos or testamentary trusts are not applicable. Ross v. Pendergast, 353 Mo. 300, 182 S.W.2d 307. The general principle of law applicable in the instant case is announced by the court in the Ross case as follows, 182 S.W.2d 307. The general principle of law applicable in the instant case is announced by the court in the Ross case as follows, 182 S.W.2d 309: "It is well settled law that exclusive possession and control over property are circumstances that raise a presumption of ownership in the possessor and anyone else claiming the property has the burden of proof. * * * Plaintiff, on the theory that the money was his property and that it never belonged to his father, was required to prove his claim by a preponderance or greater weight of the evidence."
Appellant first contends that, under the facts in this case, the presumption of ownership in Mrs. Rayborn never came into being because Mrs. Rayborn had written on the envelopes containing the money and bonds, "This is the property of Jessie Page," and thereby destroyed any presumption. In support of this proposition she cites 22 C.J. p. 126; 73 C.J.S., Property, § 17, p. 212; Dorn v. Parsons, Admr'x, 56 Mo. 601, and Rawley v. Brown, 71 N.Y. 85, 89. Plaintiff quotes from 73 C.J.S., supra, this language: "Presumptions concerning title are never allowable against ascertained and established facts. Thus, a presumption of ownership from possession is not allowable against ascertained and established facts to the contrary." We think that and similar language in the other citations is another way of saying that such a presumption is rebuttable. All the authorities agree that it is a rebuttable presumption. In the Ross case, supra, and in Valentine v. St. Louis Union Trust Co., Mo.Sup., 250 S.W.2d 167, the envelopes containing the property in litigation had written thereon the name of the claimant and were found in the safe deposit box of the deceased. In both cases the court recognized the existence of the presumption and merely treated the writing on the envelope, together with other facts, as evidence tending to rebut the presumption. Those are the last two decisions in this state on the question and are binding on this court.
We hold that the aforementioned presumption existed in this case and the burden of proof was on Jessie Page to prove her claim by a preponderance or greater weight of the evidence.
The only evidence in the record tending to prove that the money and bonds in the certain three envelopes belonged to Jessie Rayborn, is the fact that Mrs. Rayborn had written on each envelope, "This is the property of Jessie Page." Is that fact alone sufficient to meet the burden of proof and compel a finding in her favor after taking into consideration other undisputed evidence?
We think the declarations written on the envelopes by Mrs. Rayborn were admissible as evidence and were sufficient to make an issue of fact of the ownership of the contents of the envelopes, but we do not believe such declarations, when other undisputed facts are considered, compel a finding for Jessie Page. Ross v. Pendergast, supra; Valentine v. St. Louis Union Trust Co., supra; Darrett v. Donnelly, 38 Mo. 492; Meier v. Meier, 105 Mo. 411, 16 S.W. 223; Anderson v. McPike, 86 Mo. 293.
So far as the record in this case discloses, Jessie Page had no property or income other than her salary as a High School teacher; her average bank account, during the time in issue, was approximately $500; she had not withdrawn from her account as much as $500 at any one time; she did not claim the contents of the envelope at the time the deposit box was opened for an inventory of its contents. With reference to the Government Bonds, we think that it is unlikely that Jessie Page would have permitted the interest coupons to remain uncollected for a period of approximately five years immediately before Mrs. Rayborn's death if she had been the owner of such bonds. We also think it unlikely that, with such a small bank account, she would have kept $3,900 in currency in someone else's deposit box, without the right of entry, if she had been the owner and, especially so, when $1000 of that currency was bundled and stamped by the bank on "April 7 and 8, 1941," more than six years before Mrs. Rayborn died. It does not seem reasonable, and we are unwilling to believe, that Jessie Page and Fay Starrett (who lived 200 miles from Independence), on the same day, gave packages containing the same amount of currency to Mrs. Rayborn to keep for them.
We think it is reasonable to infer that, if Jessie Page had acquired the bonds and currency totaling $4,400, she could and would have produced some evidence of that fact from competent outside sources, but there is nothing in the record to that effect.
On the other hand, the evidence is that Mrs. Rayborn was a businesswoman and possessed of considerable real estate and personal property; that she had a substantial income from rents, interest and the payment of loans, and maintained a sizeable bank account at all times. In other words, she had ample property and income to justify the conclusion that she could well afford to keep a substantial amount of currency in her safe deposit box. She had no children or lineal descendants. Her only surviving heirs were a brother and a sister. We think she intended to make a gift of this property to Jessie Page and Fay Starrett, but failed to take the necessary steps to accomplish that intent.
When all the facts and surrounding circumstances are considered, we conclude that the findings and judgment of the trial court are correct.
It follows that the judgment should be affirmed. It is so ordered.
All concur.