McKeever v. Shirati Mennonite Hospital

770 S.W.2d 474, 1989 Mo. App. LEXIS 599
CourtMissouri Court of Appeals
DecidedMay 2, 1989
DocketNo. 55020
StatusPublished
Cited by2 cases

This text of 770 S.W.2d 474 (McKeever v. Shirati Mennonite Hospital) 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
McKeever v. Shirati Mennonite Hospital, 770 S.W.2d 474, 1989 Mo. App. LEXIS 599 (Mo. Ct. App. 1989).

Opinion

SATZ, Judge.

In this discovery of assets proceeding, the trial court granted defendant a partial summary judgment, finding the decedent’s trust agreements created Totten Trusts. Plaintiffs appeal. We affirm.

In her lifetime, decedent, Marie A. Bis-chof, opened twelve savings accounts, ten of which are in issue here. Eight of these accounts were opened at Roosevelt Federal Savings and Loan Association (Roosevelt), one at Conservative Federal Savings and Loan Association (Conservative) and one at Economy Savings and Loan Association (Economy). In each instance, decedent signed a “Trust Agreement” with the savings and loan association, naming herself as trustee and Shirati Mennonite Hospital of Tanzania (Shirati) as beneficiary.

Decedent never married, had no children and died intestate. As personal representatives of decedent’s estate, plaintiffs brought an action for discovery of assets. Plaintiffs sought a court order declaring the money in the accounts to be assets of decedent’s estate, ordering the savings and loan associations to pay the amounts over to the estate and declaring that no other party has any interest in the accounts. Plaintiffs alleged that decedent was “elderly and mentally infirm,” she “never had the intent of benefiting the named alleged beneficiary” and her “intent was to benefit her heirs.”

Defendant Shirati filed a motion for summary judgment, contending the accounts were Totten Trusts. The motion was based on the trust instruments and other material.1 In opposing the motion, plaintiffs filed [476]*476an affidavit of a “neighbor and friend” of decedent, in which the neighbor stated the decedent “intended that her relatives receive the money” and decedent “never intended to grant á beneficial interest in the certificates” to Shirati.

The trial court granted defendant’s motion as to the ten accounts. Plaintiffs’ appeal followed.

On appeal, plaintiffs make two basic arguments: (1) the decedent’s intent in opening each savings account is an issue of fact which cannot be resolved solely from the language of the instrument used to open the account, and (2) if decedent’s intent could be so resolved, it was put in issue again by the affidavit of decedent’s “neighbor and friend.” In either case, plaintiffs argue, the decedent’s intent was not resolved and, therefore, the trial court could not properly conclude, as a matter of law, the savings accounts in issue were Totten Trusts.

Whether the instrument used to open a savings account creates a Totten Trust is an issue with an uncertain history in Missouri. Typically, the issue now arises when a person deposits cash in a savings account and directs the savings company or bank to entitle the account in the name of the depositor “as trustee” for another person. Bogert, Trust and Trustees, § 47 at 1-3 (Rev’d 2d Ed.1984). In Missouri, as in some other jurisdictions, we treat these transactions differently than the creation of an irrevocable trust. We treat the transaction as a Totten Trust. E.g., Blue Valley Federal Savings and Loan Assoc, v. Burrus, 617 S.W.2d 111, 113 (Mo.App.1981); First Nat’l Bank of Mexico v. Munns, 602 S.W.2d 910, 913 (Mo.App.1980). Rather than being irrevocable, the trust is said to be a tentative trust, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration. In Re Totten, 179 N.Y. 112, 71 N.E. 748, 752 (1904); Burrus supra at 113; Munns supra at 913. “In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.” Totten, supra at 752; Burrus, supra at 113; Munns, supra at 913.

In opening each account at Roosevelt, decedent signed an instrument designated: “Revocable Trust Agreement.” The instrument is a card, sometimes called a “signature card”, with the terms of the Agreement printed on both sides of the card. The language of this agreement fits within the Totten Trust doctrine. Decedent is named as trustee for Shirati, the beneficiary. She controls the account during her lifetime, reserving the right to revoke the account. The trust is to continue until her death, at which time the balance in the account is transferred to the beneficiary.2

The actual language of the agreement, admittedly, is prolix and the syntax questionable. Nonetheless, the meaning is clear. We do not need to look to extrinsic evidence to aid us in interpretation. See, e.g., First Nat’l Bank of Kansas City v. Hyde, 363 S.W.2d 647, 653 (Mo.1962). Moreover, the meaning has an equally clear [477]*477legal effect. It presumptively creates a Totten Trust. See Munns, supra at 913.

Plaintiffs contend this presumption is rebuttable, and, they argue, the presumption is met by the affidavit of the decedent’s neighbor. This, they argue, creates an issue of fact: the intent of the decedent. We disagree.

We need not reach the question of whether the presumption is rebuttable. The affidavit simply does not raise a question about the decedent’s intent. In the affidavit, the neighbor states:

I know [the decedent] opened the various certificates at issue here in an attempt to reduce her own taxes. [Decedent] never intended to grant a beneficial interest in the certificates to the Shirati Mennonite Hospital.
[Decedent] intended that her relatives receive the money in the various certificates after death.

These statements are simply inferences drawn or conclusions reached without any supporting operative or evidentiary facts. They are not statements of “specific facts” which show there is a genuine issue for trial. Rule 74.04(e); see, e.g., Landmark North County Bank & Trust Co. v. National Cable Training Centers, 738 S.W.2d 886, 890 (Mo.App.1987).

The instruments signed by the decedent in opening her accounts at Conservative and Economy, however, raise a different issue. These two instruments, each designated as a “Discretionary Revocable Trust Agreement,” are essentially the same. At first, they both parallel the language of the Roosevelt instrument and, thus, in turn, parallel the language of a Totten Trust: decedent is named the trustee for Shirati, the beneficiary, and she controls the account during her lifetime, reserving the right to revoke the account. However, these instruments contain additional provisions which differ from both the Roosevelt instruments and the Totten Trust doctrine.3 See Comment, Missouri’s Totten Trust doctrine, 48 Mo.L.R. 495, 513 (1983).

First, they give the depositor/trustee the option to continue the trust after his death.

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