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June 21, 1983


From the Circuit Court of Platte County; Civil Appeal; Judge Floyd R. Baber.

Before Pritchard, P.j., Manford, Nugent, JJ.

The opinion of the court was delivered by: Nugent

Edith Carr appeals from the order of the probate division of the circuit court in this action for the discovery of assets in the estate of her step-father, James Frank Fata. She argues that the trial court erred in ruling that she wrongfully withheld $8,379.60 from the estate. We affirm.

The record of this case is replete with testimony relating to confusing transfers of funds between various savings accounts. A lengthy repetition of that confusion will serve little purpose here. The decisive facts are as follows.

On April 5, 1968, a savings account numbered 52861 was opened at Sentinel Federal Savings and Loan Association of Kansas City, Missouri, in the names of Rose Fata or James Fata or Vincent Fata as joint tenants with right of survivorship. The signature card authorized transfer of "any part or all" of the account on request of any of the joint tenants. (Rose Fata is the mother of defendant Edith Carr; James Fata is the stepfather of Edith Carr and the husband of Rose Fata; and Vincent Fata is the son of James Fata.)

On May 7, 1974, Sentinel Federal account number 90552 was opened in the names of Rose F. Fata, James F. Fata and Edith Carr as joint tenants with right of survivorship.

On November 16, 1976, Rose Fata transferred $6,620.32 from account 52861 to an account she held jointly with Edith Carr, and $15,177.44 from account 90552 to still another account she maintained with Edith Carr. Both accounts were held by Edith Carr and Rose Fata as joint tenants with right of survivorship.

From December, 1976 to April, 1978, Edith Carr removed a total of $16,759.20 from the accounts she held jointly with her mother through a series of large withdrawals ranging from over $1,000 to over $9,000.

On May 15, 1980, James Frank Fata was declared incompetent. Victor Peters was appointed guardian of the estate.

On June 1, 1980, Mr. Peters filed this action to discover the assets of James Fata, stating that he "had good cause to believe and does believe that Edith Carr has concealed or embezzled or is otherwise unlawfully withholding certain personal property of the said James Frank Fata." No written answer was forthcoming from Edith Carr, a failure attributed by her counsel to the fact that she did not receive proper service. In a pretrial Discussion, defendant's counsel waived the improper service and stated that had an answer been filed, it would have been a general denial. The court accepted this oral answer.

At trial, Mr. Peters presented the above facts and read into evidence a deposition of James Fata. Asked whether he knew if anyone had taken any of his property, Mr. Fata responded, "I never know. They took some of the stuff over a long time. I don't know where it got to. It's all gone." Mr. Fata did not define "they" or "stuff?" Asked specifically whether Edith Carr had taken any of his property, he answered unintelligibly and then added ambiguously, "The furniture is that property. Never took any of that, no. I don't know." Mr. Fata stated that he had given his wife all his money so that she could take care of him.

At this point, plaintiff rested. Following the court's denial of defendant's motion to dismiss, Ms. Carr presented testimony by Rose Fata that she knew of no embezzlement or concealment of property by her daughter and that anything done by Edith Carr in regard to the bank accounts was done at her request. The relationship between Rose Fata and Edith Carr was apparently close. Not only was Ms. Carr trusted to handle financial matters for Rose Fata, she provided a home for her mother at the time of trial and took care of her by driving her to the doctor, the bank and to shopping areas.

Mrs. Fata testified that she and James Fata had jointly owned and operated a filling station before their retirement and that when the business was sold, the money was used to buy a house. The excess went into a joint bank account. She did not know how much money she had in the bank at time of trial.

Ms. Carr testified repeatedly that in regard to the financial affairs of her mother, she never acted other than at her specific request. "I haven't done anything except what my mother has told me to do." This included the transfer of funds from one account to another and the withdrawals of funds. Over plaintiff's continuing objection that Ms. Carr had not pleaded an affirmative defense of payment, she denied ever keeping any of the money withdrawn for her own use and stated that all cash withdrawn was given to her mother. She agreed that her mother was not making a gift to her when she put her name on the accounts and that she had no ownership ...

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