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08/26/93 ESTATE BLANCHE N. MURRAY v. HAROLD

August 26, 1993

IN RE ESTATE OF BLANCHE N. MURRAY, SHARON LEE DARBY, RESPONDENT,
v.
HAROLD TESTERMAN AND ANNA MARIE TESTERMAN, APPELLANTS.



APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY. The Honorable William Roberts, Judge

Before Lowenstein, P.j.; Spinden and Smart, JJ.

The opinion of the court was delivered by: Smart

Sharon Darby, as Personal Representative of the estate of her grandmother, Blanche N. Murray, filed a petition for discovery of assets and an accounting against her brother, Harold Testerman, and his wife Anna Testerman. The trial court ruled that the Testermans held certain estate property, including a certificate of deposit, in a constructive trust for the benefit of decedent's heirs. The court ordered that the property be delivered to the estate. The Testermans appeal that portion of the trial court's order related to the certificate of deposit.

The judgment is reversed as to the issue on appeal, and the case is remanded for modification of the judgment.

On August 28, 1987, Blanche Nellie Murray died intestate at the age of 83. Mrs. Murray was preceded in death by her second husband, Roe Murray, who died in April, 1982, and by her two children. She was survived by six grandchildren, including Defendant Harold Testerman and Plaintiff Sharon Darby.

Three months after her husband's death, Mrs. Murray added Harold Testerman's name to a certificate of deposit as a joint tenant with right of survivorship. The certificate had a $20,000.00 face value and was originally issued on April 29, 1980. The title of the certificate remained unchanged from 1982 until Mrs. Murray's death in 1987, at which time the certificate was surrendered to Mr. Testerman as the surviving joint tenant. Mrs. Murray also added her grandson's name to her safe deposit box, and titled her checking account in joint tenancy with Mr. and Mrs. Testerman.

On August 25, 1989, Sharon Lee Darby filed an application for letters in the probate court requesting letters of administration on the estate. The court granted the letters. On February 19, 1991, Mrs. Darby filed a petition for discovery of assets and an accounting naming the Testermans as defendants. Following a hearing, the trial court entered judgment for Plaintiff Darby. The court found that the character of the joint certificate was for "business and convenience purposes" rather than for survivorship purposes. Although the court found no fraud or undue influence had been exercised, the court ordered that the certificate, together with certain coins and other personal property located in the safe deposit box, be turned over to Plaintiff Darby as personal representative, finding that the property was held by Mr. Testerman in constructive trust for all of Mrs. Murray's heirs. The Testermans appeal only that portion of the trial court's judgment concerning the certificate. Joint Tenancy with Right of Survivorship

The Testermans contend on appeal that the trial court erred in ordering them to deliver the certificate to Mrs. Murray's estate because upon the death of Mrs. Murray title to the certificate of deposit vested in Mr. Testerman, who held the instrument in joint tenancy with right of survivorship with Mrs. Murray. The Testermans contend that since the trial court found no fraud or undue influence in this case, the trial court had no legal basis for imposing a trust on the certificate.

Missouri has two statutes that deal with joint accounts, § 362.470, RSMo 1986, which deals with banks and trust companies, and § 369.174, RSMo 1986, which relates to deposits made in savings and loan associations. This action is governed by § 369.174, which provides that when an account is established "in the names of two or more persons . . . as joint tenants or in form to be paid to any of them or the survivor of them," the account becomes property of the persons named as joint tenants. Section 369.174 further provides:

The opening or maintenance of the account in such form, in the absence of fraud or undue influence, shall be conclusive evidence in any action or proceeding to which the association or any survivor of the personal representative of a deceased owner is a party of the intention of all the parties to the account to vest title to the account and the additions and earnings thereto in the survivor.

This statutorily created joint tenancy enforces survivorship rights based upon how the asset is titled, without consideration of the creator's actual intent. In re Estate of LaGarce, 487 S.W.2d 493 (Mo. banc 1972). The Missouri Supreme Court in LaGarce provided that a joint tenancy account is created if drafted in compliance with one of the joint tenancy statutes and that the account will be enforced as a survivorship account in the absence of fraud, undue influence, mental incapacity or mistake. Id . at 501.

In the present case, neither party disputes that when Mr. Testerman's name was added to the certificate, the ownership of the account complied with the terms of § 369.174. Thus, the issue is whether the trial court's action in ordering the certificate transferred to the estate was a misapplication of the law. Mrs. Darby contends that substantial evidence was presented to demonstrate that Mr. Testerman unduly influenced his grandmother in having his name added to the certificate and that he violated the confidence and trust placed in him by his grandmother by keeping the certificate for himself instead of voluntarily transferring the asset to the estate upon her death. At trial, Mrs. Darby testified that Mrs. Murray had said on several occasions before her death that her assets were to be divided among all the grandchildren. Also, she testified that on one occasion she overheard Mr. Testerman tell Mrs. Murray that she should put his name on the certificate so it would be easier for him to take care of her business when it was time to renew the certificate.

Clear, Cogent and Convincing Evidence

Mr. Testerman contends that the trial court erroneously imposed a constructive trust in this case because the evidence did not meet the level of proof necessary for imposing a constructive trust. The case of Fix v. Fix, 847 S.W.2d 762 (Mo. banc 1993) ...


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