Dickson v. Jonesboro Trust Company

• Decision Date: 12 June 1922
• Docket Number: 58
• Citation: 242 S.W. 57,154 Ark. 155
• Parties: DICKSON v. JONESBORO TRUST COMPANY
• Court: Arkansas Supreme Court

242 S.W. 57

154 Ark. 155

DICKSON v. JONESBORO TRUST COMPANY

No. 58

Supreme Court of Arkansas

June 12, 1922

Appeal from Craighead Chancery Court, Western District; Archer Wheatley, Chancellor; reversed in part.

Decree affirmed in part and reversed in part.

Horace Sloan for J. S. Dickson, appellant and appellee.

An estate of tenancy by the entirety does not exist in personal property in this State. This case is distinguished from that in 147 Ark. 7, on the facts.

There was not a sufficient designation of the wife to render Sarah L. Dickson a tenant by the entirety of this fund with her husband.

Even though the widow be held to be a tenant by the entirety in the bank account, it does not follow that she is entitled to the bonds, stamps and notes, as these were the individual property of G. B. Dickson and now the property of his administrator. See 147 Ark. 7; 8 A. L. R. 1017.

The charge of fraud and collusion made against the administrator in the case in which he is appellee is a general allegation and not legally sufficient. 77 Ark. 355; 51 Ark. 1; 45 Ark 505; 42 Ark. 186; 34 Ark. 631; 33 Ark. 727.

A court will not reopen a judgment when the application does not disclose some defense on the merits. Crawford's Digest "Judgments" secs. 46, 100. On the ground of fraud such fraud must have existed in the procurement of the decree, and the existence of fraud in the original cause of action is insufficient to vacate a decree in equity. 90 Ark 261. Here no fraud is alleged or pointed out. Only the administrator had the right to bring the suit. 45 Ark. 299; 35 Ark. 289.

Gautney, Caraway & Dudley, for Crowder et al, appellants.

Under secs. 1101 and 1102 C. & M. Digest, the grandchildren having an interest in the property should have been allowed to become parties. See also 49 Ark. 100; 74 Ark. 54; 86 Ark. 304.

An estate by the entireties in the funds in bank was not created. There is no presumption that such a result is intended, but there must be something said or done at the time of making the deposit to call for such a rule, or there must be a statute to that effect. See 148 N.Y.S. 302; 146 P. 647; 3 R. C. L. 527, sec. 155; 128 A. S. R. 543; 51 A. S. R. 473; 17 A S. R. 524.

Arthur L. Adams, for appellee Sarah L. Dickson.

The estate of tenancy by the entirety in personal property exists in this State. 147 Ark. 7; 8 A. L. R. 1017; 13 R. C. L. 1106, sec. 129; 21 Cyc. 1197.

Making the deposit in the name of G. B. Dickson and wife as fully identifies Sarah L. Dickson as if her name had been used. Had Mr. Dickson intended to be the sole owner of the deposit he would have used only his own name. Freeman on Cotenancy and Partition (2nd Ed.), . sec. 68. Changing the form of the property from cash deposit of bonds, notes, etc., taken in the name of one, does not extinguish the rights of the other tenant. 8 A. L. R. 1014; 7 Tenn. Civ. A. 277; 147 Ark. 7. The wife must have known of such intent and acquiesced therein.

The intervention of Crowder et al. was properly denied because jurisdiction of the lower court had been terminated by perfecting the appeal to this court before any action was taken by them. 2 Stand. Ency. Proc. 324; 72 Ark. 475; 88 Ark. 391; 107 Ark. 415; 150 U.S. 31; 29 Ark. 85.

A deposit by a husband to the credit of himself and wife creates a presumption of tenancy by the entirety. 153 Mo. 586; 108 N.Y.S. 493, 87 N.E. 1130.

OPINION

SMITH, J.

On December 31, 1921, the Jonesboro Trust Company filed its bill of interpleader against J. S. Dickson, as administrator of the estate of G. B. Dickson, and Sarah L. Dickson, the widow of G. B. Dickson. On the same day the Bank of Jonesboro filed a similar bill. The administrator filed an answer, as did also the widow; and each claimed the funds there described. On January 6, 1922, these causes were consolidated by consent of parties and were heard on an agreed statement of facts from which we copy the following recitals: G. B. Dickson died intestate November 24, 1921, and was survived by his widow and their sons and by the children of a deceased son and two deceased daughters. On November 28, 1921, J. S. Dickson, a son, was appointed and qualified as administrator, and is now serving as such. G. B. Dickson and Sarah L. Dickson were married in 1886, and all of G. B. Dickson's children were born of this union.

For a great many years prior to the death of G. B. Dickson a general deposit bank account was kept in the Bank of Jonesboro in the name of "G. B. Dickson and wife." During the lifetime of G. B. Dickson checks drawn on this account and signed "G. B. Dickson" were honored. At the time of the death of G. B. Dickson the amount of this general deposit account in the Bank of Jonesboro was $ 5,526.87.

On March 12, 1918, G. B. Dickson withdrew from the Bank of Jonesboro the sum of $ 5,000 and deposited this amount in the Jonesboro Trust Company as a general deposit to the credit of "G. B. Dickson and wife." Other deposits were made to this same account from time to time, and certain withdrawals from the account were also made. At the time of the death of G. B. Dickson the amount of this general deposit in the Jonesboro Trust Company was $ 6,992.94.

The Jonesboro Trust Company had in its possession certain Liberty bonds and Thrift stamps which were purchased from time to time prior to the death of G. B. Dickson and were all paid for by checks drawn by and signed "G. B. Dickson" on the bank deposits in the Bank of Jonesboro and in the Jonesboro Trust Company, both of said deposits being, as above stated, in the name of "G. B. Dickson and wife." The bonds and stamps are all payable to bearer and negotiable by delivery. Said bonds and stamps were delivered to the bank for safekeeping, without any designation as to whether "G. B. Dickson" or "G. B. Dickson and wife" were the owners thereof. Interest collected from time to time on the Liberty bonds was deposited by G. B. Dickson during his lifetime in the Jonesboro Trust Company in the deposit account above referred to as being in the name of "G. B. Dickson and wife."

The trust company also had in its possession two notes payable to the order of G. B. Dickson, both being executed by his sons, and representing money they had borrowed from their father. The money represented by the notes was advanced on checks drawn on the Bank of Jonesboro and payable to the order of E. F. Dickson, and were paid by said bank out of the joint bank deposit held by said bank in the name of "G. B. Dickson and wife." G. B. Dickson did not have any interest in any other bank account in the Bank of Jonesboro except the one made and kept in the name of "G. B. Dickson and wife."

All funds forming the bank deposit accounts, before being deposited in said account of "G. B. Dickson and wife," were the earnings of G. B. Dickson, and not the separate property of his wife, nor did they comprise any portion of her separate estate. The bank account in the Bank of Jonesboro was started over thirty years ago in the name of "G. B. Dickson and wife". An indeterminable part of the bank deposits in controversy represents the remainder, including interest and profit accumulations on the deposits so made from time to time.

On this agreed statement of facts the court, on January 6, 1922, a regular day of the January 1922 term, ad-judged that the widow, as the surviving tenant by the entirety, is the sole and exclusive owner of the bank deposits, and also the bonds and stamps and notes. From this finding and decree the administrator, who claimed the title to the property, described for the benefit of the estate, prayed and was granted an appeal to this court.

On March 10, 1922, the same being an adjourned day of the January 1922 term of court, the grandchildren of G. B Dickson filed an intervening petition, in which they alleged their relationship to G. B. Dickson, deceased, and alleged...