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11/20/84 JAMES R. VAUGHN AND JOAN VAUGHN v. ELLIS

November 20, 1984

JAMES R. VAUGHN AND JOAN VAUGHN, PLAINTIFFS-APPELLANTS,
v.
ELLIS E. SPITZ, DEFENDANT, AND WRIGHT COUNTY BANK, GARNISHEE-RESPONDENT



From the Circuit Court of Greene County; Civil Appeal; Judge John A. Appelquist.

Motion for Rehearing Overruled, Transfer Denied December 12, 1984.

Before Hogan, P.j., Prewitt, C.j., Maus, Crow, JJ.

The opinion of the court was delivered by: Prewitt

Plaintiffs received a monetary judgment against defendant. Thereafter, plaintiffs requested, and there was issued, a general execution and garnishment proceedings toward garnishee Wright County Bank. Interrogatories were then submitted by plaintiffs to the garnishee. By its answers to the interrogatories garnishee denied any obligation to defendant, and stated that defendant "does have a joint checking account with his wife, Elsie Spitz."

Plaintiffs' exceptions to garnishee's answers to interrogatories admitted that defendant and his wife had a joint bank account and that the bank had no other personal property of defendant in its possession or control. The exceptions alleged that defendant had deposited more than $2,700 into the bank account. Plaintiffs claimed that defendant was the sole owner of these funds and that the deposit was a transfer without consideration and in fraud of creditors contrary to the provisions of § 428.020, RSMo 1978. Plaintiffs asked the court to order garnishee to pay the $2,700 into court for plaintiffs' benefit. The trial court sustained garnishee's motion to dismiss and plaintiffs appeal.

Where a husband and wife hold a bank account as joint tenants it is presumed to be held as tenants by the entirety. Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, 396 S.W.2d 570, 580 (Mo. banc 1965). Ownership of bank accounts in this manner has long been recognized in Missouri and in some other jurisdictions. See Annot., Estates by entirety in personal property, 64 A.L.R.2d 8, 79 (1959). That the account here is held as tenants by the entirety is not disputed.*

An execution arising from a judgment against the husband alone ordinarily cannot affect a bank account or other property held by a husband and wife as tenants by the entirety. Hanebrink v. Tower Grove Bank & Trust Company, 321 S.W.2d 524, 527 (Mo.App. 1959). See also Annot., 11 A.L.R.3d 1465, 1484 (1967). But cf. Huff v. St. Louis Postal Employees Credit Union, 457 ...


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