Burkholder Ex Rel. Burkholder v. Burkholder

48 S.W.3d 596, 2001 Mo. LEXIS 65, 2001 WL 641954

• Court: Supreme Court of Missouri
• Decided: June 12, 2001
• Docket: SC 82976
• Status: Published

Opinions

WHITE, Judge.

I.

Robert J. Burkholder (R.J.) sought termination of joint tenancies held with his son, Edward Burkholder (Edward), on a certificate of deposit, a 1991 Buick automobile, and a church savings bond. While the termination action was pending, R.J. died and the personal representative of his estate was substituted as a party. Thereafter, Edward filed a separate suit contesting his father’s will and alleging conversion of personal property by his brother, William Lawrence Burkholder. The cases were consolidated for trial, and the trial judge granted termination of the joint tenancies, denied Edward’s claim of conversion, and upheld the validity of RJ.’s will. We affirm.

II.

The trial court’s judgment in a court-tried case may be reversed when it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.¹ The evidence, and permissible inferences therefrom, are viewed in the light most favorable to the judgment disregarding all contrary evidence and inferences.²

With regard to Edward’s point concerning the termination of the tenancies held on the automobile and the church bond, we affirm the trial court’s judgment pursuant to Rule 84.16. The trial court’s decision was supported by substantial evidence, was not against the weight of the evidence, and no error of law appears. A published opinion reciting the detailed facts and restating the applicable principles of law would have no precedential value.

Edward’s point relied on regarding the claim of conversion of personal property states that, “... the evidence was that Edward Burkholder was the owner of that personal property as a result of a bill of sale given to him by R.J. Burkholder on November 11, 1992, and that William Lawrence Burkholder took possession of the property without Edward Burkholder’s consent and claimed the property as his own.” Appellant’s point fails to cite relevant authority as required under Rule 84.04(d) and as such is not preserved for appellate review.³

This Court now addresses the issue of termination of the joint tenancy held on the certificate of deposit. It was determined in In re Estate of LaGarce that to terminate a joint tenancy in a savings certificate “actual termination” is required and an “intent to terminate” is not sufficient.⁴ The difference between “actual termination” and “intent to terminate” has been defined as the difference between “a contemplated act” and “a completed act.”⁵ Satisfying the “completed act” standard can be accomplished by means other than procuring a final judgment in a termination proceeding prior to the depositor’s death.⁶ Where there is a sole contributor to a jointly held certificate, methods to effect an “actual termination” include: cashing the certificate⁷ or surrender of the certificate by the sole contributor and the issuing of a new certificate in his name alone or in the name of a third party.⁸ A sole contributor can also terminate a joint tenancy by having the bank or savings association make physical changes on the certificate, or other tangible representation of the account, with corresponding changes in the institution’s records.⁹

Edward concedes that R.J. was the sole contributor to the $85,000 joint certifícate of deposit and that R.J. had the authority to remove his son as a joint tenant.¹⁰ Edward, however, relies on Sentinel Federal Savings and Loan Association v. Jones¹¹ and Home Savings Association of Kansas City v. Bratton¹² for support of the propositions that freezing an account and a lawyer’s request to terminate an account are insufficient to meet the “completed act” standard of LaGarce. Citing to Bowers v. Jones, Edward further contends that the above mentioned methods for terminating a tenancy are restrictive and would not encompass the mere revocation of authority.¹³ However, the methods identified in LaGarce and its progeny to effectuate severance of such joint tenancies do not comprise an exclusive list.

In LaGarce, the party wanting to terminate the joint account had only requested return of the certificate and did not sign a revocation of authority. Additionally, these parties had executed a collateral agreement at the time of opening the account stating that the joint tenants were to receive the funds as a gift.¹⁴ Unlike in LaGarce, R.J. had no collateral contracts with the Bank prior to executing the revocation of authority, and he took additional steps to terminate the tenancy.

R.J. asked his son to return the certificate that had been removed from his safety-deposit box without his permission. When Edward refused, R.J. went to the bank with the intention of removing Edward’s name from the account or cashing it out. Either of these actions would have, without question, severed the joint tenancy. Without physical possession of the certificate, the bank provided R.J. only one option, the execution of a revocation of authority. The revocation terminated the Bank’s authority to make payments or allow withdrawals in accordance with the original terms of the certificate, but also stated the funds in the account would continue to be owned jointly and become the property of the survivor.¹⁵ R.J. next had his attorney write a letter to Edward demanding return of the certificate and filed suit for termination of the tenancy. Edward responded by mailing a letter to the Bank stating he intended to keep the certificate that the “assets be preserved for his father.” Unfortunately, R.J. died prior to the conclusion of his suit.

The general rule is that a pending suit for partition of a joint tenancy does not sever the right of survivorship of any of the tenants. “This rule is based on two related concepts: First, the theory of survivorship — that at the moment of death, ownership vests exclusively in the surviving joint tenant or tenants, and second, the doctrine that severance of the joint tenancy does not occur until the partition suit reaches final judgment.”¹⁶ It is axiomatic, however, that when a partition suit is filed by the sole contributor to a joint tenancy, who possesses the lifetime power to divest the interests of a non-contributing joint tenant,¹⁷ the judgment in favor of severance is a forgone conclusion.

R.J. cites to Estate of Munier v. Jacquemin18 and Irondale Bank v. Crocker¹⁹ for the proposition that sole contributors to such accounts should be able to terminate a joint tenancy with a showing of sufficient facts probative of the intent to terminate it. To otherwise hold would result in undesirable situations where a joint tenant depositing all of the funds is thwarted in valid efforts to terminate the tenancy due to wrongful or fraudulent withholdings of such certificates.²⁰ There is no need, however, to engage in a discussion of R.J.’s obvious intent to extinguish the tenancy, because no further action was required to complete the act of severance prior to his death. On these facts, LaGarce does not require R.J.’s son to be rewarded for his wrongful refusal to relinquish the certificate.

III.

Where there is a sole contributor to a jointly held certificate, absent proof of fraud, duress, or undue influence, a partition suit filed by the contributor when unable to regain physical possession to otherwise alter the certificate constitutes actual termination of the tenancy. To the extent the decision in Bowers is inconsistent with this opinion it should no longer be followed. This is in no way contrary to our holding in LaGarce, but merely serves to identify another method to satisfy the completed act standard. The judgment is affirmed.

PRICE, C.J., WOLFF and LAURA DENVIR STITH, JJ., concur. HOLSTEIN, J., concurs in part and dissents in part in separate opinion filed. LIMBAUGH and BENTON, JJ., concur in opinion of HOLSTEIN, J.

1 . Brawley v. McNary, 811 S.W.2d 362, 371 (Mo. banc 1991), citing to, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). See also Rule 84.13(d).

2 . Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991).

3 . Appellant's argument cited only to Maples v. United Sav. & Loan Assoc., 686 S.W.2d 525 (Mo.App.1985), to questionably provide a definition of "conversion,” but Appellant still failed to support his position that the facts asserted, coupled with applicable law, resulted in an unlawful conversion.

4 . In re Estate of LaGarce 487 S.W.2d 493, 501 (Mo. banc 1972).

5 . McGee v. St. Francois County Sav. and Loan Ass'n, 559 S.W.2d 184, 188 (Mo. banc 1977).

6 . Bowers v. Jones, 841 S.W.2d 744, 748 (Mo. App.1992).

7 . McGee, 559 S.W.2d at 187.

8 . In re Estate of Hampton, 547 S.W.2d 886, 887 (Mo.App.1977); Carroll v. Hahn, 498 S.W.2d 602, 607 (Mo.App.1973); and Estate of Thompson, 539 S.W.2d 650, 652 (Mo.App.1976).

9 . Bowers, 841 S.W.2d at 748; McGee, 559 S.W.2d at 185-88; Peterson v. Mercantile Bank of Sedalia, 827 S.W.2d 729, 730-31 (Mo.App.1992); Jackson Savings & Loan Ass'n v. Seabaugh, 395 S.W.2d 260, 262-64 (Mo.App.1965). The foregoing case determinations are consistent with the statutory language in sections 369.174 and 362.470, which allows the creation of statutory joint tenancies in joint accounts and deposits absent all four of the common-law unities traditionally required to form a joint tenancy. Consequently, the statutory joint tenancy is terminated when the account is no longer maintained in statutory form. See LaGarce, 487 S.W.2d at 499, and Bowers, 841 S.W.2d at 748.

10 . Rubin v. Boatmen’s Nat. Bank, 811 S.W.2d 494, 496 (Mo.App.1991); Carroll, 498 S.W.2d at 607; Bowers v. Jones, 841 S.W.2d at 748.

11 . 823 S.W.2d 105, 108 (Mo.App.1991). In Sentinel, the court determined that freezing a joint account, where there was a sole contributor, merely suspended any action on the account by the joint tenants and did not sever the tenancy.

12 . 721 S.W.2d 40 (Mo.App.1986).

13 . Bowers, 841 S.W.2d at 749 (Mo.App.1992). The Bowers court followed the reasoning in Sentinel with regard to freezing a jointly held account when there is a sole contributor.

14 . In LaGarce, the joint tenants signed a separate agreement with the institution at the time the accounts were created. That agreement provided any funds deposited into the account "shall be conclusively intended to be a gift at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account.” LaGarce, 487 S.W.2d at 495. While a request was made to have the certificate returned, no demand was made, and the joint tenants holding the certificate made arrangement to return it to the sole contributor. No other documents were executed in an attempt to secure sole control over the accounts or sever the tenancy, and the sole contributor died prior to the return of the certificate.

15 .This Court need not address the issue as whether or not the revocation of authority was sufficient, in an of itself, in severing the joint tenancy because Robert's action of filing the partition suit satisfies the completed act standard of LaGarce.

16 . Heintz v. Hudkins, 824 S.W.2d 139, 142-43 (Mo.App.1992), citing to Cobb v. Gilmer, 365 F.2d 931, 933 (D.C.Cir.1966).

17 . Estate of Munier v. Jacquemin, 899 S.W.2d 114, 117 (Mo.App.1995); Auffert v. Auffert, 829 S.W.2d 95, 98 (Mo.App.1992); Blue Valley Federal Savings & Loan v. Burrus, 637 S.W.2d 737, 745 (Mo.App.1982); and Carroll v. Hahn, 498 S.W.2d 602, 607 (Mo.App.1973).

18 . 899 S.W.2d 114 (Mo.App.1995).

19 . 913 S.W.2d 360 (Mo.App.1996).

20 . Id. at 361.