In the Interest of Allen v. Hooe , 11 S.W.3d 831 ( 2000 )

PHILLIP R. GARRISON, Chief Judge.

Defendant Home Savings of America (“Home Savings”) appeals from a judgment entered following a trial to the court without a jury. Hazel Allen (“Mrs.Allen”) filed the suit, through her guardian and conservator, Chalmer Dockins (“Respondent”), not only against Home Savings but also against Randall Allen Hooe (“Hooe”), and Cheryl Ray (“Ray”). The suit was for recovery of funds allegedly converted by Hooe and Ray from accounts established by Mrs. Allen and her husband, Leonard, in both of their names. These accounts consisted of four separate accounts at Home Savings, of which three were held as “joint tenants with right of survivorship.” The other account was held by the Allens as “joint tenants with right of survivorship and not as tenants in common, and not as tenants by the entirety.” Those accounts were:

Account # 1: Account # 211-001553-0 in the amount of $9,999.99 held in the names of Leonard Allen and Hazel Allen, as joint tenants with right of survivorship;

Account # 2: Account # 211-001695-9 in the amount of $15,000.00 held in the names of Leonard Allen and Hazel Allen, as joint tenants with right of survivorship;

Account # 3: Account # 211-004758-2 in the amount of $2,387.65 held in the names of Leonard Allen and Hazel Allen, as joint tenants with right of survivorship;

Account # 4: Account # 211-000950-9 in the amount of $15,000.00 held in the names of Leonard Allen and Hazel Allen, as joint tenants with right of survivorship and not as tenants by the entirety.

The theory of liability as to Home Savings was that it improperly allowed Hooe and Ray to withdraw funds from the accounts pursuant to a durable power of attorney executed in their favor by Leonard Allen. The durable power of attorney executed by Leonard Allen included the following powers:

To establish accounts of all kinds for me with financial institutions of any kind; to modify, terminate, make deposits to and write checks on and endorse checks for or make withdrawals from all accounts in my name or with respect to which I am an authorized signatory; to negotiate, endorse or transfer any checks or other instruments with respect to any such accounts; and to contract for any services rendered by any financial institution. (Emphasis added).

In addition, Hooe and Ray were granted “full power and authority to do and perform every act necessary to be done in the exercise of any of the foregoing powers as fully as I might or could do if personally present, ...”

On January 8, 1992, Hooe and Ray presented the durable power of attorney to Home Savings, and requested to transfer funds from the accounts held by the Al-lens. After checking with the attorney who prepared the durable power of attorney, Home Savings transferred the monies from those accounts to new accounts in the names of Leonard Allen or Hooe, joint trustees for Cheryl Ray and Kimberly Johnston. The funds from those accounts were later withdrawn and no accounting was presented concerning their use.

The trial court held that the fourth account was owned as joint tenants with the rights of survivorship in that it stated on the face of the account that it was not held as tenants by the entirety. Although it entered judgment against Hooe and Ray for the $15,000 representing the funds in the fourth account, the court concluded that Home Savings could not be held accountable as to that account because of the fact that it was a joint tenancy account rather than an entireties account. The court entered judgment against Hooe and Ray, as well as Home Savings, in the amount of $27,128.80 representing the funds withdrawn from the three accounts held as “joint tenants with right of surviv-orship.” Relying on Scott v. Flynn, 946 S.W.2d 248 (Mo.App. E.D.1997), the court apparently concluded that those three accounts were held by Leonard and Mrs. Allen as tenants by the entireties and, as such, one tenant was not authorized to withdraw the funds and, consequently, Home Savings, as well as Hooe and Ray, was liable for the “change, withdrawal and the ultimate conversion of said funds.” Home Savings appeals the judgment against it. Neither Mrs. Allen, through her guardian or conservator, Hooe nor Ray has appealed.

The standard of our review is pursuant to Rule 73.01(c). Accordingly, we are to affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. In re Marriage of Lafferty, 788 S.W.2d 859, 361 (Mo.App. S.D.1990).

Scott v. Flynn, relied on by the trial court, involved an account in the Cass Bank and Trust Company. The account was titled to husband and wife as joint tenants with right of survivorship. The husband was later determined to be incapacitated and a guardian and conservator was appointed for him. The conservator later withdrew the money from the account. Wife’s suit against the bank was on the theory that the account was held as tenants by the entireties and the bank breached its agreement by paying the money in the account to the husband’s conservator. The court observed that a conservator has no authority to withdraw property held in tenancy by the entirety without the consent of the other tenant, but that funds held in an account owned by joint tenants with right of survivorship may be withdrawn by the guardian on behalf of an incompetent joint tenant without the consent of the other tenant. Id. at 250. The court relied on § 362.470.5¹ providing that any deposit made in the name of two persons or the survivor thereof who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified. Id. The court concluded that since the account in question was not titled “joint tenants with right of survivorship and not as tenants by the entirety” or by similar words, it was an entireties account requiring the consent of both tenants to the withdrawal. It said:

Likewise, in this case, we hold that, absent a specific disclaimer that the account is not being held as tenants by the entirety, an account card signed by husband and wife as joint tenants with right of survivorship must be considered a tenancy by the entirety. Inasmuch as Bank offered no evidence that [the conservator] had Wife’s approval to withdraw the funds from the account, it follows that the Bank did not show that it was entitled to judgment ...

Id. at 251-52.

In the instant case the trial court apparently entered the judgment against Home Savings based on the perception that the three accounts were held by Mr. and Mrs. Allen as tenants by the entirety because of the presumption contained in § 362.470.5, as applied in Scott v. Flynn. It also appears that the reason the trial court did not find Home Savings liable as to the fourth account was because of its conclusion that it was a joint tenancy account based on the language on the account card stating that it was “not as tenants by the entirety.” We believe that the court’s conclusion as to the three accounts was a misapplication of § 362.470.5 and that the trial court erred in holding Home Savings liable for the amounts contained in those accounts.

Home Savings’ first point on this appeal premises error on the fact that the trial court improperly applied § 362.470.5 to this case rather than § 369.174.5. Section 362.470.5, applicable to banks and trust companies, provides:

5. Any deposit made in the name of two persons or the survivor thereof who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified.

Section 369.174, applicable to savings and loan associations, provides, in pertinent part:

1. When an account is opened or maintained in an association in the names of two or more persons, whether minor or adult, as joint tenants or in form to be paid to any of them or the survivor of them and whether or not the names are stated in the conjunctive or the disjunctive or otherwise, the account and all additions thereto shall be the property of such persons as joint tenants. The moneys in the account and all earnings on the account may be paid to any one of such persons during his lifetime or to any one of the survivors of them after the death of any one or more of them.... A person may be added or removed as an owner of an account upon the written direction of any owner of the account upon whose signature withdrawals may be made from the account.... Payment of all or any of the moneys in the account or payment of earnings thereon as provided in this section is a valid and sufficient release and discharge of the association with respect to the moneys so paid prior to receipt by the association of a written notice from any one of the account owners directing the association not to permit withdrawals or make payments in accordance with the terms of the account or the written instructions....

4. Any account opened in form to be paid to two persons or the survivor thereof who are husband and wife shall be considered a joint tenancy and not a tenancy by the entirety unless specified otherwise.

It is thus apparent that an account opened in a bank in the name of two spouses, or the survivor of them, is considered a tenancy by the entirety unless otherwise specified, but in a savings and loan association, it is considered a joint tenancy and not a tenancy by the entirety unless otherwise specified.

Scott v. Flynn, relied on by the trial court, was applying § 362.470.5 because the financial institution involved there was a bank. Here, Home Savings is a savings and loan association subject to the provisions of § 369.174. Accordingly, the three accounts in question here were, by reason of § 369.174.1 and .4, joint tenancy accounts and not entireties accounts, and could be paid to either of the owners. [3] Respondent does not, in his response to Home Savings first point, contest the scope of the durable power of attorney or Home Savings’ authority to rely on it in permitting the transfer of the funds from the three accounts in question here.² In fact, the portion of the judgment holding that Home Savings was not liable on the fourth account was necessarily premised on the transfer of those funds from a joint tenancy account by an attorney in fact who was authorized to do so by the durable power of attorney.³ Respondent did not appeal that part of the judgment.⁴ Accordingly, we conclude that the trial court erred in holding that the three accounts were held as tenants by the entireties requiring the consent of both owners for withdrawal and in entering judgment against Home Savings for $27,128.80. Because of this result, we do not reach Home Savings’ other two points on appeal. The judgment against Home Savings is reversed. Otherwise the judgment is affirmed.

PREWITT, J., dissents and files a separate opinion. BARNEY, J., concurs.

1 . All statutory references are to RSMo 1994 unless otherwise indicated.

2 . The dissent notes that "Respondent also asserts that the power of attorney did not grant authority to change survivorship interests in the principal’s property.” This contention is one, made in passing, in response to Home Savings’ second point on appeal, one which we do not reach because the first point is dispositive. No such contention was made in response to the first point.

3 . The dissent concludes that a determination of whether the accounts were held as joint tenants with rights of survivorship or as tenants by the entirety is meaningless because the durable power of attorney did not grant authority to change survivorship interests in the principal’s property. It is true that the version of § 404.710.6(5) RSMo 1989, in effect in 1992, required that the power to create or change survivorship interests in a principal’s property be expressly enumerated and authorized in the power of attorney. In the instant case, the durable power of attorney expressly authorized the attorney in fact to "modify” or "terminate” all accounts to which the principal was an authorized signatory, and also to "make withdrawals” from those accounts. Any of those actions would surely change survivorship interests as to an account held jointly with another person as joint tenants with rights of survivorship. Certainly, withdrawing the money from an account would do so. Likewise, such a result could arise from modifying an account. It appears that under the specific powers granted to the attorney in fact here, he could withdraw the money from such an account and deposit it in an account in the name of the principal and himself. Mercantile Trust Co., N.A. v. Harper, 622 S.W.2d 345, 350 (Mo.App. E.D.1981), cited by the dissent involved a "general power of attorney” with no specific powers enumerated. In the instant case, the durable power of attorney granted numerous specific powers including those mentioned above, and also granted the power to "do and perform every act necessary to be done in the exercise of any of the foregoing powers as fully as I might or could do if personally present.” "Although the general rule is that powers of attorney are strictly construed,’[t]he rule of strict construction ... is not absolute and should not be applied to the extent of destroying the very purpose of the power ... [I]f the language will permit, a construction should be adopted which will carry out, instead of defeat, the purpose of the appointment.’ ” Brookfield Prod. Credit Ass’n v. Weisz, 658 S.W.2d 897, 899-900 (Mo.App. W.D.1983). In Estate of Linck, 645 S.W.2d 70, 77 (Mo.App. W.D.1982), it was held that a general grant of power together with specific grants of authority to perform acts relating to personal property and banking was sufficient to authorize the attorney in fact to convert savings and checking accounts into accounts held jointly by the principal and attorney in fact.

4 . The dissent argues that Respondent was not required to appeal the portion of the judgment holding that Home Savings had no liability as to the fourth account, noting that he received judgments against all Defendants. While he did receive a judgment against all Defendants, he was denied relief as to Home Savings on the fourth account, a decision that was adverse to Respondent. Section 512.020 permits any "party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not” otherwise prohibited to appeal. Here, the dissent would grant Respondent relief on a theory contrary to an implicit holding of the trial court which decided a part of the case contrary to his contentions, and which he did not appeal.