Bennett v. Miles

• Decision Date: 10 November 1947
• Docket Number: 4-8317
• Citation: 205 S.W.2d 451,212 Ark. 273
• Parties: Bennett v. Miles, Administrator
• Court: Arkansas Supreme Court

205 S.W.2d 451

212 Ark. 273

Bennett v. Miles, Administrator

No. 4-8317

Supreme Court of Arkansas

November 10, 1947

Appeal from Pulaski Probate Court; Frank H. Dodge, Judge.

Reversed.

W E. Phipps, Wm. J. Kirby and Talley & Talley, for appellant.

Guy Amsler, for appellee.

OPINION

McHaney Justice.

Appellant is the grandson of the late George W. Bennett who died testate on October 5, 1945, a resident of North Little Rock, Arkansas. The will of the testator is not in the record, but it is conceded that it was probated and that appellee is the executor. Appellant appears to have contested the will on the grounds of the mental incapacity of the testator and the alleged undue influence of the chief beneficiary, one J. D. Scruggs, a brother-in-law. The will was held to be valid in that case, from which there was no appeal. But, because appellant was not mentioned or named in said will, the court held that he was entitled to take under § 14525 of Pope's Digest, the pretermitted child statute.

Appellee filed his annual account current in the probate court on November 6, 1946. Thereafter, appellant filed exceptions to various items in said account, but the only item we are here concerned with is a deposit in the Twin City Bank of North Little Rock, in the name of said J. D. Scruggs, on December 26, 1944, which was not included as an asset of said estate by appellee in his said account current.

The matter was tried on January 27, 1947, and the court entered a judgment denying the exception on the ground that the $ 2,200 item was a gift from the testator to Scruggs, made during the lifetime of the decedent, and was not a part of the assets of his estate after his death. This appeal followed.

The undisputed facts are that on December 26, 1944, George W. Bennett delivered to J. D. Scruggs $ 2,200 in cash at a hospital in Little Rock, Arkansas, while he, Bennett, was a patient therein; that Scruggs deposited said sum in said bank to his own credit, but authorized and directed said bank to honor checks drawn on said account and signed "J. D. Scruggs by G. W. B. or G. B.", in other words Bennett had the right to draw all or any part of said deposit by signing checks in the name of Scruggs by himself; that prior to his death Bennett, by checks drawn in the manner stated, had reduced the balance in said bank to $ 1,700, and that Scruggs personally never drew a check against said bank account until after the death of Bennett, his first check being dated October 6, 1945, the day following Bennett's death. In a little black book kept by Bennett and given to Mrs. Church, a witness, for safekeeping, a reference to said deposit in his handwriting reads: "$ 2,200 deposited December 27th in Twin City Bank by J. D. Scruggs in favor of Geo. W. Bennett to be drawn by George W. Bennett at any time he wants money on J. D. Scruggs account." In a letter to Bennett dated January 1, 1945, at Cuero, Texas, Scruggs said in part: "I only (as you required) put your money in a bank in my name, which I assure you I will not check against, but you have full authority to check against . . ." In another letter dated January 21, 1945, Scruggs said: "On January 2nd I deposited $ 2,200 of your money in my name . . ."

Scruggs now contends, as does the appellee, that Bennett made a gift to him of this $ 2,200 and the court so found and held. In so holding we think the learned trial court fell into error. Gifts inter vivos, as well as ...