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09/27/93 ESTATE ALMA M. HOPKINS v. ESTATE ALVESTER

September 27, 1993

IN RE ESTATE OF ALMA M. HOPKINS, DECEASED, PETITIONER-RESPONDENT,
v.
ESTATE OF ALVESTER J. HOPKINS, DECEASED, RESPONDENT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF BOLLINGER COUNTY. Honorable Michael J. Bullerdieck, Judge

Flanigan, Prewitt, Crow

The opinion of the court was delivered by: Flanigan

This is a proceeding for discovery of assets, § 473.340, *fn1 instituted by a verified petition filed in the Probate Division of the Circuit Court of Bollinger County, in the Estate of Alma M. Hopkins, deceased. Petitioner is the administratrix de bonis non of that estate.

Named as respondent in the petition was the Estate of Alvester J. Hopkins, deceased. Alvester J. Hopkins and Alma M. Hopkins were husband and wife. Alvester J. Hopkins died May 11, 1990. Alma M. Hopkins died May 29, 1990.

At issue in the proceeding was entitlement to two certificates of deposit. The trial court, after an evidentiary hearing, awarded both certificates, or the monies then represented by them, to petitioner. The Estate of Alvester J. Hopkins, through its personal representatives, appeals.

On this appeal, the Estate of Alvester Hopkins contends that the trial court erred in receiving into evidence petitioner's Exhibits 2, 3, and 4, which were introduced through the testimony of Rhonda Wallis, an employee of Capital Bank. Capital Bank was the successor of First Federal Savings & Loan Association, which had issued the two certificates. Alvester's estate further contends that the evidence was insufficient to support the judgment in that (a) "any existing joint tenancies had been severed by the acts of Verdetta Hahs," and the severance was a power granted her under Alvester's Durable Power of Attorney; and (b) there was no showing that the two certificates "were jointly titled at the time of Alvester J. Hopkins' death." The final contention of Alvester's estate is that the trial court erred in refusing to admit its Exhibit A and Exhibit B.

The trial court's findings of fact included the matters set forth in the following four paragraphs:

1. Alvester Hopkins married twice. His first wife was Alma Schrock Hopkins, who died January 7, 1977. Alvester's second wife was Alma M. Hopkins, whom he married on December 19, 1979. Alma M. Hopkins outlived Alvester by 18 days.

2. CD No. 371182, "the first certificate," was purchased on December 31, 1980, from First Federal Savings & Loan Association and "was titled in the name of Alvester Hopkins and Alma Hopkins"; CD 416532, "the second certificate," was purchased on November 10, 1981, from First Federal Savings & Loan Association and "was titled in the name of Alvester Hopkins or Alma M. Hopkins"; both certificates "were titled as joint tenants with right of survivorship"; both certificates were purchased and titled after the death of Alma Schrock Hopkins and after the marriage of Alvester Hopkins to Alma M. Hopkins; First Federal Savings & Loan Association, which is no longer in existence, was purchased in part by Capital Bank of Cape Girardeau County on May 18, 1990.

3. In early May 1990, prior to the death of Alvester Hopkins, Verdetta Hahs, "under authority of a durable power of attorney granted to her by Alvester Hopkins," transferred the first certificate "to Alvester Hopkins and Jeanna M. Liley;" in early May 1990, prior to the death of Alvester Hopkins, Verdetta Hahs transferred the second certificate to a checking account in the name of Alvester Hopkins and Verdetta Hahs.

4. On September 16, 1991, in Case No. CV190-42CC, the Circuit Court of Bollinger County set aside the above transfers and "as result of that order the ownership interest in said certificates reverted back to the form in which the certificates were titled prior to said transfers"; on November 25, 1991, Verdetta Hahs transferred the first certificate, plus accrued interest, to the Estate of Alvester Hopkins; also on November 25, 1991, Verdetta Hahs paid the proceeds from the second certificate to the Estate of Alvester Hopkins.

In its Conclusions of law, the trial court made the following findings with respect to the first certificate:

The certificate was purchased at First Federal Savings & Loan Association in the name of Alvester Hopkins and Alma Hopkins and was held as joint tenants with right of survivorship in Alvester and Alma M. Hopkins; "since Alvester Hopkins predeceased Alma M. Hopkins, all interest in said certificate is the sole, separate, and absolute property of the Estate of Alma M. Hopkins, free of any claim of the Estate of Alvester J. Hopkins."

With respect to the second certificate, the trial court made the same findings, except that the certificate was purchased "in the name of Alvester Hopkins and Alma M. Hopkins."

The court ordered the personal representatives of the Estate of Alvester Hopkins to turn over the first certificate, and accrued interest, and the proceeds of the second certificate, to the administratrix of the Estate of Alma M. Hopkins.

The petition alleged, and the answer of Alvester's estate admitted, that in Case No. CV190-42CC, in which the Estate of Alvester was plaintiff and Verdetta Hahs was a defendant, an order was entered on September 16, 1991, requiring Verdetta Hahs to pay over to the Estate of Alvester Hopkins the proceeds of the first certificate, held at ...


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