Ferling v. Abernathy

670 S.W.2d 109, 1984 Mo. App. LEXIS 3759
CourtMissouri Court of Appeals
DecidedApril 10, 1984
DocketNo. 47069
StatusPublished
Cited by7 cases

This text of 670 S.W.2d 109 (Ferling v. Abernathy) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferling v. Abernathy, 670 S.W.2d 109, 1984 Mo. App. LEXIS 3759 (Mo. Ct. App. 1984).

Opinion

KAROHL, Judge.

On the petition of the personal representatives of the estate of George Ruby Fer-ling (estate) brought under § 473.340, RSMo 1978, the Probate Court determined that defendant-appellant Vivian Abernathy was in possession of $20,401.89 which was an asset of the estate and ordered that sum, plus interest, paid to the estate.

The Probate Court was asked by the petition to decide the legal effect of decedent’s act on April 6, 1981 in adding respondent’s name to his existing checking account as a joint tenant. She answered that decedent placed her name on his checking account and designated the proceeds as a gift to the survivor. The petition further alleged that in establishing the joint account the decedent acted under the domination, influence and coercion of respondent. Without specific findings the Probate Court found “the facts and issues in favor of the estate of George R. Ferling, deceased, ... that Vivian Abernathy has no right, title or interest in said funds ...”

We will affirm unless there is no substantial evidence to support the decree, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. McIntosh v. Dowdy, 625 S.W.2d 162, 163 (Mo.App.1981). Absent specific findings of fact we consider all controverted facts as found in accordance with the result reached, Freeman v. Taylor, 620 S.W.2d 1, 2 (Mo.App.1981). The judgment of the trial court will be affirmed if it is correct on any reasonable theory supported by the evidence. Molasky Enterprises, Inc. v. Carps, Inc., 615 S.W.2d 83, 86 (Mo.App.1981).

In reviewing submissibility on the issue of undue influence we accept the evidence of the party claiming undue influence as true, disregard the evidence of the opponent unless it aids the proponents case, and give the proponent the benefit of every favorable inference that may be legitimately drawn from the whole evidence. Wilhoit v. Fite, 341 S.W.2d 806, 813 (Mo.1960).

Applying these standards to the evidence, the estate’s evidence was that on April 6, 1981 the decedent drove his friend Vivian Abernathy and her daughter to the Mercantile Bank of Farmington, Missouri. The bank employee in charge of new accounts, called by the estate, gave the following testimony:

Q. Did you explain to Mr. Ferling what the meaning of putting someone else’s name on his account was?
A. Yes.
Q. What did you tell him?
A. That gives the co-owner full authority to sign, withdraw or deposit anything they please with this checking account.
Q. You explained to him that it gave them an opportunity to withdraw any and all funds that were in the bank?
A. Yes.
[111]*111Q. Did you explain to him that the account was then in the name of the individual’s or the survivor? If one should die, did you explain that to him?
A. Yes. Yes.
Q. That if one should die, what happens to the account?
A. It automatically goes to the other one that’s on the account.
Q. You explained that to Mr. Ferling?
A. Yes.
Q. Did he appear to you, as you were discussing it with him, to understand what you were saying?
A. As far as I realized he did.
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Q. Well, how did Mr. Ferling appear to you that day when — on that day when you were talking to him as to his ability to understand what you were telling him?
A. He seemed to understand.
[[Image here]]
Q. Okay. Now, when you say Mr. Fer-ling appeared to understand what you were saying, what indications did he give?
A. I don’t recall in my mind him questioning or anything like that. I mean, we explain the process to each individual case that comes in. We explain what’s being done and I don’t remember anything in particular of him not understanding what I was saying to him.
[[Image here]]
Q. Okay. Now, did he manifest that agreement?
A. I asked him if he was — if, you know, if that was — as I was explaining what was being done, you know, we always have to ask the main person if that is exactly what they want and he did apply that it was.
Q. He what?
A. He did apply that that was what he wanted, was to add her to his account.
Q. What do you mean by “apply”?
A. He said yes.

The estate also called Dr. Richard C. Winder, D.O. Dr. Winder treated the deceased between August, 1980 and December, 1980 for a chronic lung problem, particularly combined bronchitis and emphysema with an overlay of bronchogenic carcinoma. Dr. Winder’s treatment was primarily rendered at Mineral Area Osteopathic Hospital. On December 17, 1980, Mr. Fer-ling was transferred to St. John’s Mercy Hospital in St. Louis because of a strong suspicion of spread of cancer to the brain manifested by a disorientation as to time and place. Dr. Winder was of the opinion that on December 16, 1980 George Ruby Ferling was mentally incompetent. He testified, however, that he could not give an opinion as to Mr. Ferling’s mental competency on April 6, 1981. He further testified that there was a strong possibility that Mr. Ferling could definitely be influenced. On cross-examination Dr. Winder indicated that the brain scan and C.T. scan testing at St. John’s Mercy Hospital was negative and that there was no way he could tell what Mr. Ferling’s condition was on April 6, 1981; that in January 1981 he became oriented as to time and place which indicated to the doctor that his condition may have been improving. In response to this testimony the estate’s attorney acknowledged to the court that Dr. Winder could not give an opinion to a reasonable degree of medical certainty as to Mr. Ferling’s mental condition on April 6, 1981.

Appellant elected to defend against the claim of the estate on the basis of the creation of a joint bank account and on the contention of gift. On this defense appellant, as a donee, must show that the donor had the capacity to know and understand the nature and effect or consequences of the act involved, a reasonable understanding of the nature and extent of the donor’s property, and an understanding of the natural object of donor’s bounty. Flynn v. Union National Bank of Springfield, 378 S.W.2d 1, 6 (Mo.App.1964). “[T]he capacity required to make a gift is not as high or acute as the capacity to engage in a business or arm’s length transaction where each party thereto is engaged [112]

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Bluebook (online)
670 S.W.2d 109, 1984 Mo. App. LEXIS 3759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferling-v-abernathy-moctapp-1984.