Apache State Bank v. Daniels

• Decision Date: 12 December 1911
• Citation: 121 P. 237,32 Okla. 121
• Parties: APACHE STATE BANK v. DANIELS.
• Court: Oklahoma Supreme Court

121 P. 237

32 Okla. 121

APACHE STATE BANK v. DANIELS.

Supreme Court of Oklahoma

December 12, 1911

Syllabus by the Court.

Under the provisions of section 16, art. 7, and section 2 of the Schedule of the Constitution, an appeal lies to the district court from the county court, in probate matters, in those cases in which an appeal was allowed by the statutes of Oklahoma Territory. Wilson's Statutes, § 1793; Snyder's Statutes, § 5451.

In an equity proceeding, the trial judge may, in his discretion impanel a jury and submit to it distinct questions of fact for its advice; but he should not in such cases submit the case to a jury for a general verdict for the plaintiff or the defendant. Such a submission is erroneous; but a case should not be reversed for such an error, where it affirmatively appears that, notwithstanding the verdict of the jury, the trial judge reviewed the evidence and reached the same conclusion as the jury.

James Daniels, on his deathbed, said to his wife: "Florence, I give you all of my bank stock, and all of my property and my diamonds. Take my key to our box and keep it, and allow no one to have it." The bank stock was in a small tin box in a vault in an adjoining room, to which both the deceased and his wife had access. There were two keys to this tin box one of which was usually carried by the deceased and one key by his wife. At the time these words were spoken, the wife had both keys on her belt, and transferred his key from his key ring to hers. Nothing else was done prior to his death.

Held, that this was not a sufficient delivery to constitute a valid donatio causa mortis.

Commissioners' Opinion, Division No. 1. Error from District Court, Rogers County; John H. Pitchford, Judge.

Proceeding by the Apache State Bank against Florence Daniels administratrix of the estate of James Daniels, deceased. Judgment for defendant, and plaintiff brings error. Reversed and rendered.

John H. Burford and Frank B. Burford, for plaintiff in error.

Davenport & Hall, Ziegler & Dana, and Chas. Bucher, for defendant in error.

AMES C.

The plaintiff instituted this proceeding by filing in the county court of Rogers county an application to require the defendant, who was administratrix of the estate of James Daniels, deceased, to inventory 168 shares of the capital stock of the Farmers' & Merchants' Bank of Catoosa. The application alleged that this bank stock had formerly belonged to one James Daniels, deceased; that upon his death James Daniels left two heirs at law, one being his widow, Florence Daniels, the defendant, who was also the administratrix of the estate, and the other his father, S. H. Daniels; that the plaintiff had recovered judgment against S. H. Daniels for $1,300; that it had thereafter brought an action in the district court of Rogers county against S. H. Daniels and Florence Daniels, as the heirs of the deceased, for the purpose of subjecting the interest of S. H. Daniels in said stock to the payment of said judgment; that in said cause a receiver had been appointed, who was then in possession of the stock; that the plaintiff was entitled to have the distributive share of S. H. Daniels applied to the payment of its judgment; and that the defendant was claiming the said stock as her individual property and refusing to inventory it. The defendant moved to quash the citation, and the motion was overruled. She then replied admitting that she held the stock, but claiming it as her individual property and denying that she was required to inventory it as property of the estate. The issue raised by these pleadings was tried in the county court, and an order was made directing the defendant, as administratrix, to inventory the stock as the property of the estate. An appeal was taken to the district court, which the plaintiff moved to dismiss because the court was without jurisdiction; the order from which the appeal was taken not being a judgment from the rendition of which an appeal would lie from the county court to the district court. This motion was overruled, and the case proceeded to trial, resulting in a judgment in favor of the defendant, and the case is here on the plaintiff's petition in error.

The defendant claims title to the stock by virtue of a gift from her husband while he was on his deathbed, and it appears from the evidence that the stock was in a tin box in the vault of the Catoosa bank; that the defendant and her husband lived in a room adjoining the banking room; that the deceased died on Sunday afternoon; that the defendant knew the combination and was accustomed to opening the vault; that a few hours prior to his death the deceased said to his wife that he wished to give her his bank stock and other property in the box, and for her to take the key and not let anybody have it; that at the time there were two keys to the box, one ordinarily carried by the deceased, and the other by the defendant, but that the defendant had both keys in her possession at the time of this gift; and that upon these words being spoken she transferred the key of the deceased from his key ring to her key ring, but did not enter the vault or take possession of the box.

The questions which are raised by the record are as follows: (1) Did the district court have jurisdiction of this appeal? (2) Was it reversible error for the district court to impanel a jury and submit the issues for a general verdict? (3) Was the delivery sufficient to constitute this a valid donatio causa mortis? (4) If so, does the statute providing that the capital stock of a corporation is personal property and can only be transferred by delivery and indorsement defeat the gift? (5) Was the defendant, under the circumstances of this case, a competent witness for herself?

1. We think the district court had jurisdiction. It is admitted that, under the statutes in force in the territory of Oklahoma, an appeal in this case would lie from the probate to the district court, under section 1793 of Wilson's Statutes (Snyder's Statutes, § 5451), which is as follows: "An appeal may be taken to the district court from a judgment, decree or order of the probate court: First. Granting, or refusing, or revoking letters testamentary or of administration, or of guardianship. Second. Admitting, or refusing to admit, a will to probate. Third. Against or in favor of the validity of a will or revoking the probate thereof. Fourth. Against or in favor of setting apart property, or making an allowance for a widow or child. Fifth. Against or in favor of directing the partition, sale or conveyance of real property. Sixth. Settling an account of an executor, or administrator or guardian. Seventh. Refusing, allowing or directing the distribution or partition of an estate, or any part thereof or the payment of a debt, claim, legacy or distributive share; or, eighth. From any other judgment or order of the probate court, or of the judge thereof affecting a substantial right."

It is urged that section 16 of article 7 of the Constitution limits such appeals to judgments only, and therefore, in substance, denies the right of appeal from all orders which may not be treated as judgments. That section is as follows: "Until otherwise provided by law, in all cases arising under the probate jurisdiction of the county court, appeals may be taken from the judgments of the county court to the district court of the county in the same manner as is now provided by the laws of the territory of Oklahoma for appeals from the probate court to the district court, and in all cases appealed from the county court to the district court, the cause shall be tried de novo in the district court upon questions of both law and fact."

Section 2 of the Schedule provides: "All laws in force in the territory of Oklahoma at the time of the admission of the State into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law."

The question here raised is settled by the case of Bowman v Bilby, 24 Okl. 735, 104 P. 1078, where the question involved was whether or not justices of the peace, after statehood, had jurisdiction in forcible entry and detainer cases. The Constitution prescribed the jurisdiction of justices of the peace "until otherwise provided by law," and did not confer upon them jurisdiction in such cases. The laws in force in the territory of Oklahoma did. Section 2 of the Schedule extended these laws where not repugnant to the Constitution, or locally inapplicable, and the question involved was whether or not that jurisdiction conferred by the territorial statute remained in addition to that jurisdiction which was conferred by the Constitution. That is much the same question which is here presented. In the opinion it is said (24 Okl. 738, 104 P. 1079): "It was evidently the intention of the framers of the Constitution to leave the question of the jurisdiction of justice of the peace open to be fixed by the proper legislative authority, and in the meantime, to avoid inconvenience, to adopt by the schedule the old Oklahoma Territory statutes on the subject. The enactment of section 2 of the Schedule had precisely the same effect as if the legislative assembly had convened immediately after statehood and passed a statute on the subject of forcible entry and detainer, the same in purport as that in force in Oklahoma Territory when statehood became a fact. If the Legislature could pass such a law--and there seems to be no room for doubt upon this proposition--the constitutional convention could also do so by adopting the law upon the subject from the territory of Oklahoma in conformity with the enabling...