Carter v. Greenway
| Decision Date | 06 March 1922 |
| Docket Number | 201 |
| Citation | 238 S.W. 65,152 Ark. 339 |
| Parties | CARTER v. GREENWAY |
| Court | Arkansas Supreme Court |
Appeal from Independence Circuit Court; Dene H. Coleman, Judge affirmed.
STATEMENT OF FACTS.
J. H Greenway and Cora B. Smith instituted separate suits in the circuit court against the First National Bank of Batesville Ark., to recover the sum of $ 2,000 each, alleged to be due on certificates of deposit.
The bank filed an answer in which it admitted the execution of the certificates of deposit, and that they were past due. It averred that the certificates were issued upon certain checks purported to have been drawn by C. H. Greenway during his lifetime on an account kept by him in the bank. After the death of C. H. Greenway, certain persons claiming to be his heirs at law notified the bank not to pay said certificates of deposit, and that they intended to contest the validity of the same. The bank alleged that it was ready and willing to pay the amount of said certificates to the parties entitled to receive the same. The bank asked that the parties claiming the money be made defendants to the action.
Malissa C. Carter, Berdie Fulk, Sarah Maxey and Martha Newberry claiming to be heirs at law of C. H. Greenway, deceased, then intervened in the action. The two suits were then consolidated for the purpose of trial. The case then resolves itself into a contest between them as rival claimants of the money.
C. H. Greenway was a bachelor about forty years of age when he died, at the residence of Mrs. Cora B. Smith, his sister, during the month of April, 1920, in Independence County, Arkansas.
According to the testimony of Mrs. Cora B. Smith, one of the appellees, she is a widow with two children, and her brother, C. H. Greenway, had lived with her for nine years before he died. About Christmas 1919, C. H. Greenway, who was a bachelor, gave to her a little box and told her to take it and keep it and put it away where its contents would not get destroyed. The box was wrapped up in paper, and Mrs. Smith put it in a satchel. She kept the box, but did not open it until after her brother's death, which occurred on April 5, 1920. He died on Monday, and she opened the box the following Saturday in the presence of her 13-year-old daughter. When she opened the box, she found two checks signed by her brother, C. H. Greenway. Both were drawn on the First National Bank of Batesville, Ark. One of them was for $ 2,000 payable to herself, and the other was for $ 2,000 payable to J. H. Greenway, their youngest brother. There was also in the box a check signed by C. H. Greenway to her son for $ 158. The checks with the indorsements on them are marked exhibits "A" and "B" and are as follows:
Indorsed: "This is the way I want this to go."
"C. H. Greenway."
J. H. Greenway.
"Punched: Paid 4-15-20". 81-115.
Indorsed: "This is the way I want this to go."
When Mrs. Smith opened the box, besides the checks she found two notes, which, together with the endorsements thereon, she identified as exhibits "C" and "D", which are as follows:
Note attached:
Note attached:
Mrs. Smith first showed the contents of the box to George Greenway, an older brother. On Monday next after finding them she saw J. H. Greenway and delivered to him the notes and certificates of deposit which were payable to him. On the following Wednesday, Mrs. Smith and J. H. Greenway went to the First National Bank and presented the checks for payment. They were required to indorse the checks, and the bank then paid them by issuing to each of them a certificate of deposit for $ 2,000, payable at the end of six months, on the return of the certificate properly indorsed, with interest at the rate of four per cent. per annum.
C. H. Greenway was not friendly towards his brothers-in-law, Fulk and Carter. He was more intimate with J. H. Greenway than with his other brothers. J. H. Greenway was the youngest of the boys, and came to see C. H. Greenway nearly every day during his last sickness.
According to the testimony of Dr. J. H. Kelley, he knew C. H. Greenway and was called to see him as a physician on the 23rd day of November, 1919. Greenway was suffering from an enlarged liver and a bad heart. Dr. Kelley told Greenway that he was likely to die, and that he was going to die unless he got relief. He had waited on Greenway previously, and because of Greenway's obstinacy about taking medicine he felt like he ought to tell him his real condition. He did not tell him of his serious condition to scare him, but in an effort to make him take the treatment he prescribed for him. He thought possibly he might get better if he would do so.
Mrs. Smith's 13-year-old daughter, Edna, corroborated her testimony about the finding of the checks and notes in the box.
Other evidence for appellees tended to show that C. H. Greenway was not on good terms with his brothers-in-law, Fulk and Carter, and that he thought more of his youngest brother, J. H. Greenway, than he did of his other brothers.
On the part of appellants it was shown that C. H. Greenway had settled his differences with his brothers-in-law and was on friendly terms with them during his last illness. There was also evidence adduced by appellants tending to show that the signature to the checks was not the genuine signature of C. H. Greenway.
Inasmuch as there was a verdict for appellees, and its sufficiency must be tested by the evidence adduced in their favor, it is not necessary to more particularly abstract the testimony for appellants.
Judgment was rendered in favor of appellees, and to reverse that judgment appellants have duly prosecuted this appeal.
Judgment affirmed.
The verdict is not supported by the evidence. In order to uphold a gift causa mortis the proof must be clear and convincing. 93 Ark. 548; 72 Ark. 307; 44 Ark. 42.
The evidence was not sufficient to show that it was the intention of C. H. Greenway to make a gift of the certificate of deposit to Mrs. Smith, or that she was to act as the agent of J. H. Greenway. 44 Ark. 42.
To constitute a valid gift, there must be a complete delivery of the subject of the gift. 12 R. C. L. 495. To establish a gift causa mortis, there must be an intention to pass the title, and this intention must be carried into effect by delivery. 44 Ark. 42; 72 Ark. 307; 43 Ark. 307; 132 Ark. 54.
The delivery of a check not to be used until after the death of the maker does not constitute a gift inter vivos. 27 L. R. A. (N. S.) 308. A check of itself does not operate as an assignment of the funds. C. & M. Digest, § 7955.
One cannot make his own check or note the subject of a gift so that in the absence of payment it can be enforced against the donor. 105 Cal. 143; 69 Conn. 404; 70 Ill. 647; 39 Ind.App. 108; 124 Ky. 512; 17 La. 144; 90 Me. 468; 96 Md. 609; 111 Mass. 24; 13 Mich. 282; 60 Ark. 169; 93 Ark. 548; 131 Ark. 501.
Samuel M. Casey, for appellees.
The delivery of a gift may be made to the donee, her agent or trustee. 59 Ark. 195.
When a gift is made by one stricken with a fatal malady and has no hope of recovery, the presumption is, that it is a gift causa mortis. 131 Ark. 501.
If the gift is absolute, a mere postponement of the enjoyment until the death of the donor is not material. 14 A. L. R. 702, and note to 3 A. L. R. 902.
There was a valid gift causa mortis. 36 S.E. 74; 93 Ark. 548. It was not necessary that the certificate of deposit should be indorsed. 12 R. C. L. 966; 99 Am. St. Rep. 912. The evidence was sufficient to show delivery. 211 S.W. 127.
The law presumes an acceptance of a gift beneficial to the donee, Gordon v. Clark v. Clark, 149 Ark. 173.
Mrs. Smith took the gifts to her brother as trustee for him. 101 Va. 414; 44 S.E. 721; 117 Am. St. Rep. 694; 105 S.C. 459; 3 A. L. R. 891.
The gifts should be sustained. 100 Minn. 331; 111 N.W. 269; 10 Ann. Cas. 473; 8 L. R. A. (N. S.) 828.
HART, J., (after stating the facts).
The theory upon which appellees brought this suit and upon which it was tried in the lower court was that they were entitled to the amounts of the checks on the ground of a gift causa mortis. The law on this question has been clearly and concisely stated by the New York Court of Appeals in Ridden v. Thrall, 11 L.R.A....
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