Appeal by defendant from the Circuit Court of Sangamon county;
the Hon. DeWITT S. CROW, Judge, presiding. Heard in this court at
the October term, 1950. Affirmed. Opinion filed November 2, 1950.
Rehearing denied December 28, 1950. Released for publication
December 28, 1950.
MR. JUSTICE WHEAT DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 28, 1950
Defendant, John B. Kennedy, as administrator of the estate of Mary Kennedy, deceased, appeals from that part of a decree of the circuit court of Sangamon county, finding that said Mary Kennedy had no interest in or title to $12,325 in currency contained in a certain safety deposit box rented by Ridgely Farmer's Safe Deposit Co., of Springfield, as lessor, and ordering that said depositary turn over one-half of said currency to George A. David, plaintiff appellee, and the other one-half thereof to said George A. David, as executor of the last will and testament of his deceased wife, Sarah David.
The original complaint at law alleged that said depositary refused to deliver certain personal property including currency in the amount of $12,325 contained in one of its safety deposit boxes which was rented in the name of Sally Kennedy, the maiden name of plaintiff's wife, Sarah David, who died November 15, 1947, and that said property was and is plaintiff's, having been taken from his business and from sales of his property and turned over to his wife for safekeeping and for her comfort and enjoyment, to be held by her until needed and called for by plaintiff. By amendment to the complaint it was alleged that defendant, Mary Kennedy, plaintiff's deceased wife's mother, claimed some interest in the property in question under the terms of the joint deposit box agreement signed by her and plaintiff's wife at the time the box was rented in 1944, but that her claim is subordinate to plaintiff's. The depositary interpleaded, disclaiming any interest in the property in question, except its claim for box rental and the cause, by stipulation, was dismissed as to it.
Plaintiff's motion for leave to file an additional count in equity as Count II was allowed over defendant's objection, the record showing that Count II was found by the court "to be similar in nature to the original complaint at law." No part of Count II itself, however, appears either in the record or the abstract and nothing further discloses its contents except what can be gained from defendant's answer thereto, which denies that the property in question belonged to plaintiff and alleges it to be the sole property of defendant. The answer further alleges that the property in question was jointly owned by defendant and plaintiff's wife at the time it was placed in the safety deposit box and alleges that the box was rented by them in their joint names in accordance with the terms of a certain rental agreement relied upon to establish joint ownership with right of survivorship between them, and further denies that any of the property in question was placed in the safety deposit box by defendant or that it was not claimed or controlled by her during the lifetime of plaintiff's wife. Plaintiff's reply denied the affirmative allegations of the answer and the matter was referred to the master in chancery to take testimony as to the issues made thereby. Thereafter, Count I, being the amended complaint at law, was dismissed on plaintiff's motion.
Some time after the hearing before the master had begun pursuant to the reference of Count II, defendant moved the court to set aside the reference to the master and her motion was allowed, as was her ex parte motion to strike "that portion of Count II with reference to mutual wills" made by plaintiff and his deceased wife. The court thereupon re-referred the cause to the master "on the sole issue as to plaintiff's ownership of the property in question under Count II and also whether said property is impressed with a trust as alleged in Count II."
Plaintiff thereupon moved for leave to file an amended Count II and a new Count III, both in equity, a copy of each being attached to plaintiff's motion for leave to file. Amended Count II alleged that since the filing of the original complaint the will of plaintiff's wife has been found and admitted to probate and that said will was executed along with a similar will of plaintiff's pursuant to an agreement between plaintiff and his wife for the mutual protection of both of them and for the protection of plaintiff as to any part of his property placed in his wife's custody. Count III, styled "an alternative to amended Count II," alleged that plaintiff's wife had received the property in question from plaintiff to place in the safety deposit box, but that the property was and is plaintiff's having been taken by him from his business and from sales of other property and turned over to his wife for safekeeping and to be held by her until needed and called for by him, that plaintiff, at various times, placed funds and property in his wife's hands for her to place in the safety deposit box for safekeeping and on various occasions sent her to withdraw funds and property from the box when needed in his business, and that in addition to the funds in question the plaintiff gave his wife sufficient funds for her well being, comfort and support. Count III further alleged that defendant has claimed the currency in the safety deposit box as her own, although none of it was placed there by her and was not claimed or controlled by her during the lifetime of plaintiff's wife; that the plaintiff's wife was, with respect to the property in question, trustee for the benefit of plaintiff and that the deposit box agreement, if valid, was in violation of the trust imposed upon plaintiff's wife with respect to the assets in question and is of no force and effect and is a fraud upon the rights of plaintiff.
The two counts alleged in common the marriage of plaintiff and wife in October 1935, that they lived together as husband and wife until her death in 1947, that after her marriage she at no time engaged in any business or employment but was supported by plaintiff, that she at no time possessed any real or personal property as her sole and separate property; that upon her death certain listed personal property was found in the safety deposit box in question, $12,325 in cash being included therein, and that defendant claims said assets by virtue of the joint deposit box agreement which is set out in full. It is further alleged in both counts that the agreement is insufficient in law to transfer the ownership and possession of the assets which were in the possession of plaintiff's wife during her lifetime to her mother, the defendant.
Plaintiff further moved that the court, upon allowing the amendment of the complaint by the filing of the foregoing counts, re-refer the cause to the master on the issues made therein. The record and abstract show only that this motion was taken under advisement, that Count III was filed and that the court ordered that "said Count III with reference to the trust now before the Master be made a part of the pleadings in this case." There is nothing whatever in the record to indicate that answer of any kind was made to Count II as amended or to Count III, the only answer filed by defendant having been directed to the original Count II which, as noted above, is not shown in either the record or the abstract. No criticism of the condition of the record is made by either party.
Nevertheless, the master proceeded to hear the testimony of numerous witnesses on two principal issues, namely, "the title to certain cash in a joint safety deposit box and the effect of the agreement relating to such safety deposit box."
The essential facts found to have been established by the court in its decree, which approved the master's report and findings, are as follows:
Plaintiff and his wife were married October 10, 1935, and to the date of her death on November 14, 1947, both worked in a business known as Rose's Eat Shop, which in various locations was owned by them and managed by plaintiff. During said period they accumulated the $12,325 in currency in question, which represents, either directly or indirectly, the profits of said business in which both were interested, said sum being all the cash possessed by plaintiff and his wife at the time of her death. The court further found that during their married life, plaintiff turned over to his wife to hold and keep for him all the profits of the business and that at various times plaintiff used a part of this fund in the business and for other investment and retained control thereof in his wife's hands, she at all times holding the funds for him and subject to his order, and that plaintiff and his wife each beneficially owned one-half of the currency in question located in the safety deposit box.
It was further found that this box was rented on April 28, 1944, by plaintiff's wife and her mother, the defendant, and that the latter was never at the box, did not know its location, and owned none of the contents thereof, plaintiff's wife having continually opened the box and controlled the contents thereof during her lifetime.
The court also found that the deposit box agreement, hereinafter set forth, executed by plaintiff's wife and defendant, did not create a joint tenancy in them with respect to the contents of the box, that no title or ownership therein passed to defendant as the survivor of the two lessees, and that defendant has no interest in or title to any of the assets contained in the safety deposit box.
The court concluded that the currency in question is the property of the plaintiff and his deceased wife in equal shares and ordered it turned over and delivered accordingly, as above indicated. During the proceedings, Mary Kennedy (the mother) died, her death was ...