ESTATE OF KLING, 736 S.W.2d 65 (Mo.App. 1987)

IN THE ESTATE OF ROBERT E. KLING, DECEASED.

JOHN WILLIAM KLING AND JANET A. KLING, PETITIONERS-APPELLANTS, v. NANCY

HEMAN KLING AND EVERETT W. KLING, DEFENDANTS-RESPONDENTS.

JOHN WILLIAM KLING, ET AL., PETITIONERS-RESPONDENTS, v. NANCY HEMAN KLING,

ET UX., DEFENDANTS-APPELLANTS.

Nos. 51916, 51917.

Missouri Court of Appeals, Eastern District, Division Four.

August 11, 1987.

Motion for Rehearing and/or Transfer Denied September 9, 1987.

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APPEAL FROM THE ST. LOUIS COUNTY CIRCUIT COURT, LOUIS M. KOHN, J.

Jack F. Allen, Clayton, for petitioners-appellants.

Edward E. Murphy, Clayton, for defendants-respondents.

GARY M. GAERTNER, Presiding Judge.

[1] John and Janet Kling, the surviving children of Robert Kling,
decedent, brought an action against decedent's brother Everett
and his wife Nancy. Acting as personal representatives of the
estate, the children (appellants) sought discovery of assets and
made a claim to certain property held by Everett and his wife.

[2] Decedent and Everett (respondent, cross-appellant) owned
several pieces of property together. The properties included
Water Oaks, a recreational property in Crawford County, Cheshire
Lane, a rental property in Webster Groves, and Horan Drive, a
rental property in Fenton. Decedent and Everett also maintained
several joint bank accounts. They maintained an account at
Centerre Bank of Chesterfield into which they made deposits and
paid the expenses of the rental properties. The Centerre account
had a balance of $7,148 at decedent's death. A bank account at
Commerce Bank of Webster Groves was set up and maintained for the
upkeep of Water Oaks. Decedent and Everett had agreed to each
contribute $20 per month to the account. Repairs and expenses of
the property would then be paid out of the account. Decedent
never contributed to the account and Everett increased his
contribution to $40 per month. Everett alleges that decedent's
failure to contribute to the upkeep of Water Oaks created a
"moral obligation" leading to the confusion surrounding the title
to the Fenton property.

[3] When the brothers purchased the Fenton property each
contributed part of the purchase price, with the property being
titled in Everett's wife's maiden name. The evidence as to why
the brothers had the property titled in Everett's wife's name is
conflicting. Everett alleges that it was a security arrangement
resulting from decedent's "moral obligation" from Water Oaks.
Appellants allege that decedent sought to hide his ownership of
the Fenton property from his employer, the City of Fenton.

[4] Everett and his wife claimed 100% ownership of the Fenton
property. Appellants sought the imposition of a resulting trust,
splitting the property 50-50. The trial court imposed a resulting
trust determining Everett's interest to 71% and decedent's
interest to be 29%. The court also found the Centerre Bank
account to be held in joint tenancy with right of survivorship
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and
awarded the balance to Everett. Both Everett and appellants
challenge the trial court's judgment.

[5] On cross-appeal, Everett attacks the trial court's ruling
which precluded him from testifying under the Dead Man's
Statute.[fn1] Everett then made an offer of proof detailing the
conversations between decedent and Everett regarding the Fenton
property. Everett argues that the evidence shows that the parties
intended a security arrangement, not an implied trust. The trial
judge did not consider the offer of proof in making his findings
of fact and conclusions of law.

"[I]n actions where one of the original parties to
the contract or cause of action in issue and on
trial is dead, ... the other party to such contract
or cause of action shall not be admitted to testify
... in his own favor...."

[6] RSMo § 491.010 (Cum.Sup. 1984). Everett argues that
cross-respondents waived the protection of the Dead Man's Statute
by bringing the action and introducing evidence of the
transaction in dispute, citing Buchweiser v. Laberer,
695 S.W.2d 125 (Mo. banc 1985). Buchweiser was decided August 7,
1985, well after the trial in the instant case.[fn2] Since
application of the Dead Man's Statute is an evidentiary matter
procedural in nature, the Buchweiser case applied prospectively
only. In re Weissinger, 720 S.W.2d 430, 431 n. 1 (Mo.App.,
E.D. 1986). The trial court correctly applied the statute in
effect at the time of trial. Further, the evidence contained in
Everett's offer of proof was mostly cumulative and would not have
overwhelmed the clear and convincing evidence of the resulting
trust. Cross-appellants' first point is denied.

[7] Both parties attack the trial court's application of a
resulting trust. Appellants claim that the trust should have been
divided 50-50. Everett argues that a resulting trust never arose,
rather the evidence showed the parties intended a security
arrangement.

[8] The law implies a resulting trust from the conduct of the
parties and the circumstances existing at the time of the
transaction from which the trust arose. Dallas v. Dallas,
670 S.W.2d 535, 539 (Mo.App., E.D. 1984). The burden of establishing
the elements of a resulting trust lies with the party seeking to
establish the resulting trust. Robinson v. Owens, 647 S.W.2d 206,
207 (Mo.App., E.D. 1983). Where one pays the purchase price
for land with legal title taken in another, a presumption arises
that the latter holds the property under a resulting trust for
the payor. Dallas, 670 S.W.2d at 539. If the payor only pays a
part of the purchase price, he acquires a pro tanto interest in
the real estate. Duncan v. Rayfield, 698 S.W.2d 876, 880
(Mo.App., S.D. 1985). This theory assumes that one who provides
purchase money intends to receive the benefit of the purchase.
Absent evidence to the contrary, it is presumed that the payor
did not intend to make a gift. Jones v. Anderson, 618 S.W.2d 252,
255 (Mo.App., S.D. 1981).

[9] Of the $19,005.00 paid at and before the closing, the
evidence showed that decedent contributed $5,544 and Everett
contributed $5,624. The remaining $7,837 was attributed to
Everett because appellants, the proponents of the trust, failed
to meet their burden of proving otherwise. See Robinson v.
Owens, 647 S.W.2d 206, 207 (Mo.App., E.D. 1983). The trial
court's calculation resulted in a 29% share for decedent and a
71% share for Everett. The trial court based its determination on
clear and convincing evidence and we will not disturb its ruling
absent a strong showing of evidence to the contrary. Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We find no such
evidence. Appellants' first point and cross-appellants' second
point are denied.
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[10] In their second point, appellants allege that the trial court
erred in refusing to admit certain evidence pertaining to the
Cheshire property. The trial judge excluded the evidence based
on relevancy. The determination of whether offered evidence is
relevant lies within the sound discretion of the trial court.
The trial court's ruling will be upheld absent an abuse of
discretion. Moreland v. State Farm Fire & Casualty, 662 S.W.2d 556,
565 (Mo.App., S.D. 1983); Weatherly v. Miskle, 655 S.W.2d 842,
844 (Mo.App., E.D. 1983). We find no abuse of discretion.
Point denied.

[11] Finally, appellants allege that the trial court erred in
awarding the balance of Everett and decedent's joint checking
account to Everett. Appellants argue that the account contained
trust proceeds which continued to be subject to the trust. We do
not find appellant's argument persuasive and will follow the
well-settled rule in Missouri that absent fraud or undue
influence, a joint bank account is held in joint tenancy with
right of survivorship. RSMo § 362.470 (1986). See In re
LaGarce, 487 S.W.2d 493, 499 (Mo. banc 1972). This point is
denied.

[12] Finding appellants' and cross-appellants' contentions on
appeal without merit, we affirm the judgment of the trial court.

[13] STEPHAN and SIMON, JJ., concur.

[fn1] In 1985 the legislature abrogated the Dead Man's
Statute by substantially rewriting § 491.010. See RSMo §
491.010 (1986).

[fn2] Buchweiser had been previously decided by the Missouri
Court of Appeals, Eastern District in December, 1984, but was
transferred to the Missouri Supreme Court and pending at the time
of trial.

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