43 Ark. 307 (Ark. 1884), Nolen v. Harden
|Citation:||43 Ark. 307|
|Opinion Judge:||Eakin, J.|
|Party Name:||Nolen et al v. Harden et al.|
|Attorney:||Compton, Battle & Compton, for appellants. Smoote & McRae for appellee, C. S. Hill. R. H. Baugh, pro se.|
|Court:||Supreme Court of Arkansas|
��������� APPEAL from Clark Circuit Court in Chancery. Hon. H. B. Stuart Circuit Judge.
���������So much of the testimony of C. S. Hill, J. C. Pettus and C. A. Hightower as relates to transactions with or statements of M. O. Hill deceased should have been excluded. Sec. 2 of Schedule to Const. 1874. So much of the testimony of Mrs. C. A. Hightower as relates to the statements made by M. O. Hill in her presence and hearing, while she was his wife, should have been excluded. 1 Greenl. on Ev. Sec. 337-8; Gantt's Dig., Sec. 2482; Acts 1883, page 8.
���������In gifts inter vivos and causa mortis, there must be an actual delivery. The delivery must be according to the nature of the thing, and must be the true and effective way of obtaining the command and dominion of the subject of the gift.
���������The donor must deliver the property and part with all present and future dominion over it. There must be a substantial, tangible and visible change of possession to the donee. Gantt's Dig., Sec. 2956; 2 Kent. Com., Marg. p. 438-9; 1 Nott & McCon'l ( S. C .) 239; Cutting v. Gilman, 41 N.H. 150; 31 Me. 422; 9 Vesey, 1; 7 Taunt., 224; 2 Vesey, Sr., 431; 109 Mass. 541; 2 B. & Ald., 551. See also 35 Barb., 33.
���������The testimony shows that Hill never parted with his dominion over the money, and the gift was never consummated.
���������1. Whether C. S. Hill was a competent witness as to conversations and transactions with M. O. Hill deceased, he certainly was as to all other facts. Const. 1874, Sch. Sec. 2.
���������2. Mrs. Hightower was competent as to all facts not coming to her knowledge by reason of her relation as wife. 1 Greenl. Ev., Sec. 383 and note .
���������3. Pettus is not within the exception. He is merely a nominal party. No judgment can be rendered against him. He is clearly competent. 37 Ark., 195; 8 Com., 254; 5 Dana, 499; 2 A. K. Marsh., 566.
���������4. The evidence clearly shows a gift inter vivos, and the money never became part of the estate. 11 Ark., 249; 14 Id., 304; 35 Id., 304; 37 Id., 483; 8 Id., 83; 10 Id., 211; 17 Am. Law Reg., 7 & 73.
���������Notwithstanding the provisions of Section Two (2) of the Schedule to the Constitution of 1874, and the decisions of this court reported in the 26 Ark., 476; 30 Ark., 285 and 32 Ark., 337, the defendant, J. C. Pettus, is unquestionably a competent witness in this cause, and his deposition was properly considered by the Chancellor in the court below. 37 Ark., 195; Bird et al v. Jones et al; Bonnett v. Stowell, 37 Vermont; Ford v. Sproule, 2 A. K. Marshall, 528; 8 Conn., 254; 11 Conn., 522; 20 American Decisions, 100 and note on p. 109; 12 Pickering, 307; 30 American Dec., 689; see also Sec., 22, Art. 7, Constitution 1868.
��������� The right to dispose of property honestly acquired, conformably with law, is before and higher than any Constitutional sanction. Constitution 1874, Declaration of Rights; Parsons on Contracts, Vol. I, p. 234.
���������And the grantor's clear intention in an effort to exercise this right while living, ought to be, after his decease, if not largely aided and abetted by Courts of Chancery, at least regarded by them with marked favor. Bond v. Bunting, 78 Pennsylvania; Digest American Decisions, Vol. 1 to 30, p. 103, Sections 109, 115, 117; 6 Conn., 111; 2 Gill and Johnson, 36.
���������There was a perfect technical delivery from the donor to Pettus as the trustee of his infant daughter, the donee. 11 Ark., 265, 266; 14 Ark., 304; 35 Ark., 195, 304, 315; Cooper v. Burr, 45 Barb. ; 4 Leigh, 333.
���������Such delivery to and the acceptance by Pettus of the fund in question, perfects a title thereto in the infant donee, even though its subsequent possession was in the parent of the donee. 8 Ark., 83, 107; 10 Ark. 211, 224; 1 Nott & McCord, 237, 592; 41 Iowa 334; 15 Wend., 548; Roberts Appeal, 85 Penna. St. ; 2 Kent 445.
���������And title once vesting in donee, if a gift inter vivos, the donation was irrevocable, and title yet remains in donee. 2 Kent, 440; 17 American Law Register, pp. 7 and 73, where authorities on this point are collated .
���������The gift was inter vivos: 1 Parsons Contract, 234, et seq.; 17 American Law Register, p. 1, et seq.; Gardner v. Meritt, 32 Md. And was not, causa mortis: Rhodes v. Childs, 64 Pennsylvania; 14 Cent. Law Journal, 362; 23 American Decisions, 191.
���������But viewed as being either one or the other, the transaction constitutes a perfect gift. 1 Parsons Contract, p. 236; 5 American Decisions, 593; 9 American Decisions, 593; 23 American Decisions, 191, 597, 604; 11 Cent. Law Journal, 414.
���������If substantial justice has been done in this cause the judgment of the court below will stand. 34 Ark., 94.
���������On the 2nd day of January 1882, Dora O. Baugh, with her husband, R. H. Baugh, sued J. C. Pettus and C. S. Hill on a bill of exchange for $1,875, drawn by them in favor of plaintiffs, on the 10th, of August, 1881, upon Wolf, Bro. & Bath, of St. Louis, payable by the 1st of December following, and which had been protested for non-acceptance.
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