Opinion
May 21, 1951.
1. — Husband and Wife. An estate by entirety can exist in bank account whether husband or wife, or both, furnish the money which goes into account.
2. — Husband and Wife. Where common law as to estates by entirety exists, bank deposit payable to husband and wife is presumed to be estate by entirety notwithstanding legislative enactments touching joint deposits.
3. — Husband and Wife. In interpleader proceeding to determine whether deceased's executor or deceased's wife, was entitled to proceeds of checking account in name of deceased and wife, evidence was sufficient to establish checking account was an estate by entirety.
4. — Husband and Wife. Where deceased husband had checking account in husband's name prior to marriage, and after marriage checking account was changed to husband and wife, and wife had drawn checks on joint account for 15 years, and both parties used checking account for household, office and personal expenses, checking account was estate by entirety and was not gift to wife.
Appeal from Circuit Court of Butler County. — Hon. Randolph H. Weber, Judge.
AFFIRMED.
George S. Roudebush and Phillips Phillips for Appellant.
I. The money deposited in the account in question was placed therein by Dr. C.B. Coleman. (Motion for New Trial, Point No. X). This action was a dispute between two defendants over the ownership of the bank account. The first question to be answered is who deposited the money in the account? There is no question as to the ownership of the money placed in the account in question, since the testimony revealed that the money belonged to Dr. Coleman. At Page 63 of the Bill of Exceptions, the testimony of Marie Schmerbauch was that all the money that was deposited in the account in question belonged to Dr. Coleman. There was never any testimony to refute this statement. II. The Court erred in holding, in effect, that the account in question represented an account by the entirety. (Motion for New Trial, Point No. IX). The Court in its findings and judgment found that the change in designation of the account in 1942, and the usage thereof was intended to make this account an account by the entirety and that the presumption was such. The question to be answered is, did Dr. Coleman give an interest in the money to the defendant Beatrice M. Coleman? And was the action on his part sufficient to designate this account an account by the entirety? In paragraph Four of the separate answer of Beatrice M. Coleman, we find the following statement: "That the checking account as aforesaid carried in the following manner `Coleman, C.B. Mrs. Chas. B.' constituted an estate by the entirety in personal property, said estate being owned by Charles B. Coleman and Beatrice M. Coleman, his wife. That Beatrice M. Coleman had a right of survivorship in said account and that at the death of her joint tenant, the said Charles B. Coleman, the entire account became and is her property." The Appellant urges that the error in this contention is that the account did not constitute a tenancy by the entirety. The money deposited in this account belonged to Dr. Coleman and the only manner in which she could acquire any interest in the money was by a gift from the deceased. There is no other way in which she could have acquired an interest in the account. This rule is thus stated in 66 A.L.R. 891: "Of course, as stated in the earlier annotation, the creation of a gift or trust is a condition precedent to the existence of a joint tenancy." The Appellant further contends that there was never any gift made, and furthermore, that there was never any evidence of any intention on the part of Dr. Coleman to make such a gift. It is the rule that a mere deposit of money in an account does not in itself evidence a gift. This rule is thus stated in 48 A.L.R. 191 (1927): "The rule sustained by a majority of cases is that the mere fact that money is deposited to the account of the owner `and' another, or the owner `or' another, does not show an intent to make a gift." This rule is applicable to deposits in the name of husband and wife. Thus in Jones v. Ferguson, 150 Fla. 313, 7 So.2d 464 (1942), the Court held that no gift was intended or effected where a husband, who was away from home for a long period, opened a bank account in his wife's name, and that thereafter an arrangement was made so that the husband or wife could withdraw funds. The Court said: "We do not find in these circumstances two essential elements of gifts inter vivos, namely, the intention of the donor to relinquish dominion over the subject and delivery of it to the donee. There was a responsibility on the part of the husband to support his wife and obviously creation of the account in the bank was the means adopted by him to accomplish that purpose. It is equally plain that he was making provision for the maintenance of the property which he owned and she occupied. By this method he could effectively meet the obligation to his spouse and, with her help, protect his property. This practical arrangement between a man and his wife falls short of establishing any intention on his part of making an outright gift but, on the contrary, is indicative of a joint effort to prevent any loss or inconvenience that might result from the absence of the husband." Again in Thomas v. Houston, 181 N.C. 91, 106 S.E. 466 (1921) the facts show that the decedent had deposited his funds in a bank in return for a certificate of deposit payable to himself or his wife. The Court held that the proceeds of the certificate belonged to the decedent's estate, stating as follows (page 93): "In the instant case, there is no evidence of any intentional gift accompanied by an actual or constructive delivery during the last illness of the deceased. He was up and about his business at the time the money was placed in bank; and there is no evidence that anything transpired between him and his wife with respect to this certificate of deposit subsequent to the date of its issuance which would amount to a valid transfer." In Wolfe v. Hoefke, 124 Wn. 495, 214 P. 1047 (1923) the Court said: "The fact that Miss Hoefke could draw the money would not imply that it belonged to her. Passing upon that precise question, in Meyers v. Albert, 76 Wn. 218, 135 P. 1003, we said: `Where an account in a bank is opened in the name of two persons, the money being supplied by one, but each having the equal right to draw upon it, the title to the account does not pass from the one supplying the funds to the one to whom the right to draw is jointly extended'." It has also been held that a deposit by a husband of his own funds in the name of husband and wife does not by itself create a tenancy by the entirety. Such a ruling is found in Bender v. Cleveland Trust Co., 123 Ohio St. 588, 187 N.E. 452 (1931) where the Court said: "The significant and, in our opinion, the controlling and decisive fact appearing in this case is that no right of survivorship was expressed in the direction given to, and authority conferred upon, the bank; but on the contrary, the limited purpose clearly indicated by David Bender for which such arrangement was made that `either may draw' expressly excludes the view that Josephine Bender was given any right to said fund as survivor." It is true that there were special circumstances bearing upon the purposes for which the husband gave the wife the right to withdraw in that case, but as stated by the Court, the significant fact is that no direction as to survivorship was given when the account was opened. So, here, there is nothing on the signature card and no additional evidence to indicate that survivorship was intended. An account created with a signature card similar to the one here used could not possibly give rise to a tenancy by the entirety. The incidents of such a tenancy are well known; they are set out at length in Stifel Brewing Co. v. Saxy et al., 201 S.W. 67 (Mo. 1918). One of these incidents is that neither spouse can dispose of an interest in the property so held without the consent of the other. Under the arrangement here made by the decedent with the plaintiff bank, either party could have taken all the assets. Indeed, this occasionally occurred, according to the testimony of Miss Schmerbauch, because the account was sometimes overdrawn. An account held in such a fashion certainly cannot be declared to be held by the entirety. The most that can be said is that there may be a matter of intention as to whether the decedent created an account by the entirety. In Craig v. Bradley, 134 S.W. 1081 (K.C.Ct. of App. 1911) the Court said: "Both bank accounts were made up of deposits by the husband alone in the name of both. Whether these were held in entirety depends upon the intention. The mere direction of the husband to the bank to keep an account in their joint names is not conclusive, but it has a favorable bearing on the question in the wife's favor." The Court then went on to hold that the circumstances in that case were such that a tenancy by the entirety was intended. Here there were no such circumstances. The situation is exactly what it purported to be and nothing more: Dr. Coleman placed his money in the account so that either he or his wife could draw upon it at will. That is exactly what he did and all that he did. He did not purport to do more. If he had wanted to do more, he could easily have done so. The president of the plaintiff bank testified that Dr. Coleman was thoroughly familiar with business procedures. The bank itself was, of course, familiar with such procedures. There would have been no difficulty whatever in providing that this account should be payable to either or survivor. The statute providing for such accounts is R.S. 1939 Sec. 7996, was enacted in 1915 (Laws, 1915, p. 154) and was known to the bank. Yet no use was made of the forms there provided. As the signature card was written, the statute is not applicable. It provides: "When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them . . ." (Our emphasis). Here there was no use of the words "either," "or" or "survivor." The depositor merely directed the bank to recognize two signatures. In order for this statute to be applicable the deposit must meet the requirements of the statute. In Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079 (1932) the Court said (p. 1081): "The deposits in question in this case, however, cannot be said to fall within the terms of the statute. It may well be that the depositor by the use of the words `payable to herself or G.N. Wolfe,' intended the deposits to be paid to either or the survivor of them, but they are not `in form to be paid to either, or the survivor of them.' Hence the statutory presumption just referred to does not arise from their use." This rule of strict construction of the statute is followed in other states where a similar statute has been enacted. In New York where the wording of the statute is identical with the underlined portion of the Missouri statute quoted above, the Court in In re Fonda's Estate, 206 A.D. 61, 200 N.Y.S. 881 (1923) said (p. 883): "However, as the provisions are in derogation of the common law, they must be strictly construed. It has accordingly been held that the form of the deposit must be in strict conformity with that expressed by the statute, or the statute will not apply." It has been held in Missouri in Ball v. Mercantile Trust Co., 220 Mo. App. 1165, 297 S.W. 415 (St. L., 1927) that New York authorities on the interpretation of this statute in Missouri are controlling. Although cases may be found holding that the balance in certain husband and wife cases should be paid to the survivor, there are factors in such cases which distinguish them from the present one. Thus in Simon, et al. v. St. Louis Union Trust Co., et al., 139 S.W.2d 1002 (Mo. S.C., 1940) one of the matters before the Court was certain time certificates of deposit issued to "George H. Simon and Charlotte Simon." The Court held that on the death of George Simon, his widow, Charlotte Simon, was entitled to these certificates. That case is entirely different from the present one. The property involved was a time certificate of deposit which could only be held and paid as an entirety. Further it was issued to husband and wife. Here there were successive bank deposits which could be, and were at times, withdrawn by either party. Here, also, either party was authorized to make withdrawals. There was no entirety about the present case, while there was such an entirety in the Simon case. This Appellant respectfully submits that Dr. Coleman deposited his funds in the plaintiff bank for the convenient use of himself and his wife. More than that he did not do. There is nothing on the face of the transaction, nor did the defendant Beatrice M. Coleman offer any evidence, to show that Dr. Coleman ever intended that on his death the balance in the account should go to his wife. Therefore, the judgment of the Court should be given for defendant Frank B. Coleman, Executor of the Estate of Charles B. Coleman, deceased. III. The Court erred in wholly or partially basing its judgment on ledger sheets of plaintiff. (Motion for New Trial, Point No. VII.) The ledger sheets of the State Bank of Poplar Bluff, after 1942, carried this account under 5 different headings. When Mr. Hays, president of the Bank, was asked why this discrepancy in names was possible, he stated (Bill of Exceptions No. 88): "Yes, Sir. I would like to state this, in 1941 there were eight employees in the bank. During the war, there were a lot of changes. And within the next four or five or six months, five of those eight were jerked out and put into the military service and we had no choice of getting competent bookkeepers. We just had to take anybody that would take the job. And where you have some six or eight thousand accounts, it becomes an almost impossible task to keep everything in shape." As can be seen from the above, these ledger sheets would be very poor evidence of the ownership of this account; and the Court should not have used them as a partial basis for his decision. The Appellant urges that whatever action was taken by the Bank with reference to this account, or in what manner the Bank regarded this account, has no bearing upon this case. The intention of Dr. C.B. Coleman is the determining factor, and Appellant contends that there is no evidence that he intended to create an account by the entirety. IV. The Court erred in wholly or partially basing its judgment on the Bank's typing a certain designation on the signature card. (Motion for New Trial, Point No. VIII.) In paragraph Four of the Court's Findings and Judgment, we find the following: "The Court further finds that on May 6, 1942 * * * that plaintiff bank on that date typed thereon the designation "Coleman, C.B., and Mrs. Chas. B." The action of the bank in typing the aforesaid names on the signature card is of no consequence in this case, and should not have been considered by the Trial Court in reaching his decision in this case. Any action taken by the Bank with reference to this account could not create a joint account in Dr. Coleman and his wife. The determining facts are the intention of the deceased and whether he conformed to the law in creating this account. V. The Court erred in holding, in effect, that the signature card conforms to the statutes relative thereto. The question of whether or not a deposit or an account is joint is governed by Section 7996 R.S. Mo. (1939). This Section, in part, provides as follows: "* * * When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon shall be held for the exclusive use of the person so named and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; * * *" The Appellant contends that the deposits made to this account were not made "by any person in the name of such depositor or another person and in form to be paid to either." The deposits to this account were all made by Dr. C.B. Coleman before 1942, when the signature card was signed, and also after 1942. In the case of Murphy v. Wolfe, 45 S.W.2d 1079, l.c. 1081, the Supreme Court of this State said: "The deposits in question in this case, however, cannot be said to fall within the terms of the statutes. It may very well be that the depositor by the use of the words `payable to herself or G.N. Wolfe,' intended the deposits to be paid to either or the survivor of them but they are not `in form to be paid to either, or the survivor of them.' Hence the statutory presumption which is referred to does not arise from their use." It will be noted that in that case the deposits were made by using the words referred to in the above quotation, but in the instant case the deposits were made by Dr. C.B. Coleman. It should also be remembered that Mrs. Coleman never made a deposit in this account. (Bill of Exceptions p. 63). It appears to be the law in this State that a presumption arises that a joint deposit in form payable to either depositor or survivor becomes the property of both as joint tenants with attendant right of survivor. Even though the above is the law, attention must be called again as to the manner in which the deposits were made, which was in the name of Dr. C.B. Coleman alone. The Appellant urges that if the depositor intends to create a joint tenancy, as contended by the respondent, that same should be done in conformity with the statutes of this State, and cannot be done by inference. The only action taken by Dr. Coleman which could indicate an intention on his part was the fact that he signed the signature card along with Mrs. Coleman, which signature card and the signatures thereon did not conform to the provisions of the statutes pertaining thereto as to joint tenancy of bank accounts. VI. The Courts erred in failing to consider the fact that Beatrice M. Coleman (Mrs. Chas. B. Coleman) had a private account in the same bank. (Motion for New Trial, Point No. CI). In arriving at his decision in this case, the Trial Court failed to take into consideration the fact that Beatrice M. Coleman (Mrs. Chas. B. Coleman) had a private account in the State Bank of Poplar Bluff, on which account her husband could not draw checks. It is true that Dr. Coleman also had a private account, but he deposited all the funds in both his private account and the account here in controversy. The Appellant urges that if Dr. Coleman intended to give the Respondent any sums of money that he would have had it deposited to her private account and not to the checking account in question.
Robert C. Hyde for respondent, Beatrice M. Coleman.
(1) There is no testimony in the case to successfully controvert the oral testimony of the bank officials and the documentary evidence which demonstrated that the account in question was carried as a joint account and that it was Dr. Coleman's intention to so carry it. II. A wife claiming an estate by the entirety in a bank account does not have the burden of proving a gift from her husband. Simon, et al. v. St. Louis Union Trust Co., et al., 346 Mo. 146, 139 S.W.2d 1002; Murphy v. Wolfe, 329 Mo. 545, 45 S.W.2d 1079; 135 ALR l.c. 1011;; 149 ALR l.c. 892. III. Where a checking account is carried "Mr. Mrs. C.B. Coleman," the presumption arises that the account is an estate by the entirety. Simon v. St. Louis Union Trust Co., supra; Cullum v. Rice, 236 Mo. App. 1113, 162 S.W.2d 342; Black v. Black (Supreme Court of Ark. 1940), 135 S.W.2d 837; Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S.W. 57; 135 ALR 1011; 149 ALR 894. (a) An account in the name of husband and wife can fail to comply with the language specified in Section 7996 R.S. Mo. 1939, and still constitute an estate by the entirety. Simon v. St. Louis Union Trust Co., supra; Murphy v. Wolfe, supra; l.c. 1081; Black v. Black, supra; (b) An estate by the entirety can exist in a checking account. Cullum v. Rice, supra; Black v. Black, supra; Dickson v. Jonesboro Trust Co., supra. (c) The fact that all deposits were made by Dr. Coleman does not prevent the account from constituting an estate by the entirety. Black v. Black, supra; Cullum v. Rice, supra; Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387 l.c. 392.
This case was started by a bill of interpleader. Answers were filed by Mrs. Beatrice Coleman, widow, and Frank B. Coleman, Executor of the estate, of Charles B. Coleman, deceased. Upon trial, the court rendered judgment for Mrs. Coleman. From that judgment, Frank B. Coleman, Executor, has appealed.
In its bill of interpleader, the State Bank of Poplar Bluff stated that it had in a checking account in the name of "C.B. Coleman and Mrs. Charles B." the sum of $6,887.86; that C.B. Coleman died February 1, 1949; that this sum was claimed by the widow of the deceased C.B. Coleman and also by the Executor of his estate. Plaintiff asked permission to pay the sum into court and prayed the court to have these parties interplead. This order was made and Frank B. Coleman, Executor, filed his answer, claiming the sum on the theory that it belonged to the estate of the deceased. Mrs. Coleman in her answer and cross bill claimed that the funds were held as an estate by the entirety and that upon her husband's death, it became hers and she prayed judgment accordingly.
By stipulation and testimony, it was shown that in 1928, C.B. Coleman, who was a practicing dentist, had an account in plaintiff's bank in his own name. That on June 20th, 1934, he married Beatrice McDaniel and that shortly thereafter, the account was changed to the name of C.B. Coleman and Mrs. Charles B. Coleman. They were husband and wife from the marriage until C.B. Coleman's death. From the time the account was changed until his death, both of them drew checks against the account and these checks were honored without any remonstrance from either of them or from the bank. Apparently, Beatrice kept no record of her checks and neither Dr. Coleman nor his secretary, witness Schmerbauch, knew the number of checks she drew during the month until the monthly statement arrived. On occasions, apparently the account would be overdrawn. This account contained a balance of $6,887.86 at Dr. Coleman's death.
The evidence also showed that Dr. Coleman had a separate account in his individual name in the Bank of Poplar Bluff in which his wife had no interest and that Beatrice M. Coleman had a separate account in her name in plaintiff bank, in which her husband had no interest. Ledger sheets were introduced in evidence which were headed "Mr. and Mrs. C.B. Coleman, 105 No. Main Street, Poplar Bluff, Missouri." One signature card filed with the bank May 6, 1942, was signed by both Dr. and Mrs. Coleman and it authorized the bank to recognize these signatures "in payment of funds or the transaction of other business on our account." On the bottom of this signature card was the notation put there by employees of the bank in typewriting, "Coleman, C.B. and Mrs. Charles B." A charge was made of three cents for each check written on the account above eight in number and an itemized slip stating the amount of this charge was included with the monthly bank statement. On the bottom of this slip was this notation made by the bank, "Charge account of Mr. and Mrs. C.B. Coleman." Two of these slips were introduced in evidence. There was testimony relative to other ledger sheets (which were not introduced) which showed they were headed " C.B. Coleman", "C.B. Coleman or Mrs. C.B. Coleman" and others "C.B. Coleman and Mrs. C.B. Coleman." This variation was attributed by officers of the bank to the fact that during the war some of their regular employees were inducted into the armed service and they were forced to employ incompetent and inexperienced persons.
The evidence tended further to show that most, if not all of the deposits were made by Dr. Coleman.
The President of plaintiff bank testified that the entry at the top of the ledger sheet should have been originally made from the deposit ticket. He remembered a conversation with deceased to the effect that because Beatrice Coleman had a personal account in her name, as "Beatrice McDaniel Coleman" that on the account with her husband, they should use the designation Mrs. C.B. or Mrs. Charles B. Coleman to avoid confusion in the accounts. The account had been carried as a "joint" account for about fifteen years. Beatrice M. Coleman was placed upon the witness stand but the court refused to permit her to testify because of the provision of Sec. 1887 R.S. Mo. 1939 (the dead man statute.)
It is well settled that there can be an estate by the entirety in a bank account. Ambruster v. Ambruster 31 S.W.2d 28, 326 Mo. 51, 77 A.L.R. 782. Cullum v. Rice, 236 Mo. App. 1113, 162 S.W. (2) 342. Ryan v. Ford, 151 Mo. App. 689, 132 S.W. 610. Rezabek v. Rezabek, 196 Mo. App. 673, 192 S.W. 107.
And that is so whether the husband or the wife, or both, furnish the money that goes into the account. Murphy v. Wolfe 329 Mo. 545 (en banc) 45 S.W.2d 1079. Sutorius v. Mayor, 350 Mo. 1235, 170 S.W.2d 387. Cisel v. Cisel, 352 Mo. 1097, 180 S.W. (2) 748. Bender v. Bender, 281 Mo. 473, 220 S.W. 929. Kaufmann v. Kaufmann 70 A.2d 481, 166 Pa. Super. 6.
The common law relative to estates by the entirety governs in Missouri. Schwind v. O'Halloran, 142 S.W.2d 55, 346 Mo. 486. Linders v. Linders, 356 Mo. 852, 204 S.W.2d 229. McElroy v. Lynch (Mo.) 232 S.W.2d 507. Frost v. Frost, 200 Mo. 474, 98 S.W. 527, 118 Am. Jur. S.R. 689.
And the statute relative to joint deposits or other similar statutes does not affect common law estates by the entirety where property is in the name of a husband and his wife. The presumption is that it is an estate by the entirety. Cullum v. Rice, 236 Mo. App. 113, 162 S.W.2d 342.
It makes no difference if they are not so designated, if in fact, they are husband and wife.
We think that under the decisions of this state, the evidence in this case was sufficient to show an estate by the entirety. Craig v. Bradley 134 S.W. 1081, 153 Mo. App. 586. Murphy v. Wolfe 329 Mo. 545, 45 S.W.2d 1079. Simon v. St. Louis Union Trust Co. 346 Mo. 146, 139 S.W.2d 1002. Baker v. Lamar (Mo.) 140 S.W.2d 31. Hiatt v. Hiatt (Mo.) 168 S.W.2d 1087. Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295, 161 A.L.R. 450. Black v. Black 199 Ark. 609, 135 S.W.2d 837. Dickson et al. v. Jonesboro Trust Co. 154 Ark. 155, 242 S.W. 57. Pattons Digest of Legal (Banking) Opinions, Vol. II (1942 Ed.) Page 1708, Sec. 14D:15.
The deceased had an account in his own name prior to the marriage. Immediately after his marriage it was changed to himself and his wife and he discussed with the banker the proposition of using the name, Mrs. Charles B. Coleman, because she had a personal account in the name of Beatrice McDaniel Coleman in the same bank. He had a separate account in his name in another bank in which she had no interest and in the plaintiff bank she had a separate account in which he had no interest. She had drawn checks on this joint account for 15 years. From it, household, office and personal expenses were paid. A great portion, if not most of the ledger sheets were in their joint names. When a service charge was made against the account, it was designated as a charge against the account of "Mr. and Mrs. C.B. Coleman." This slip notifying them of the service charge was included with the cancelled checks and monthly statement, which apparently was mailed to the deceased, himself, at his office. The signature card referred to it as "our account".
His secretary testified that she kept his books and that each month the monthly statements and checks were kept in Dr. Coleman's office and a check book was kept there. She testified that when the bank statements came back to the office, "We checked from our check books in the office the checks which were written for monthly bills." Upon being asked if she took the cancelled checks written by Mrs. Coleman and entered them in the check book, she said, "No, we just subtracted." the aggregate of them. This was from the balance which did not show the checks written by Mrs. Coleman. The secretary would make the deposits for Dr. Coleman. Sometimes he directed the deposit be made in his personal account at the Bank of Poplar Bluff and at other times in the account of himself and wife at the State Bank of Poplar Bluff. She was asked if she discussed the accounts with Dr. Coleman and she answered, "No, sir, we just checked them." She then stated that she checked them and the bank book would balance.
She then said that Dr. Coleman did not check the bank balances but left that to her.
There can be no question from this evidence but that immediately after the marriage, Dr. Coleman had his personal account in the State Bank of Poplar Bluff changed from his name alone to him and his wife. From that time on, each of them drew checks from it in payment of household, office and other expenses. There is no evidence whatever that this procedure was contrary to his intentions and there was no evidence of a complaint from him, his wife or the bank.
A subpoena had been issued for other signature cards but they were unable to find any since the one filed in 1942. From the banker's testimony as to the method of procedure, it is a reasonable inference that one was filed at the time the account was changed from Dr. Coleman's personal account to that of him and his wife, but it could not be found upon a search. The testimony shows Dr. Coleman was an experienced business man, a director in the Poplar Bluff Trust Co., and familiar with banking matters.
It is not a reasonable inference from the testimony that the bank made the change in the account from Dr. Coleman, personally, to him and his wife without his authority, neither is it reasonable to assume that if they did so he would not have discovered or approved it in the fifteen years since the change.
Cases have been cited by appellant relating to gifts causa mortis and inter vivos. This was not such a gift and those cases do not apply. This was the creation of an estate by the entirety where, under the common law and the law of Missouri, there is unity of interest, time, title and possession in the husband and wife, each seized of the entirety, they being one person in law.
Neither does the fact that either Dr. Coleman or his wife could draw checks on the account destroy their relationship as tenants by entirety in the balance left in the bank. The drawing of the checks was by mutual consent. Kaufmann v. Kaufmann, 70 A.2d 481, 166 Pa. Super. 6. Hoyle v. Hoyle (Del. Ch.) 66 A. 130, Madden v. Gosztonyi Savings and Trust Co., 200 A. 624, 331 Pa. 478, 117 A.L.R. 904.
The judgment of the trial court should be affirmed. It is so ordered. Blair, J. concurs.