Duling v. Duling's Estate, 37917

• Decision Date: 16 April 1951
• Docket Number: No. 37917,37917
• Parties: DULING et al. v. DULING'S ESTATE et al.
• Court: Mississippi Supreme Court

Page 39

52 So.2d 39

211 Miss. 465

DULING et al. v. DULING'S ESTATE et al.

No. 37917.

Supreme Court of Mississippi, Division A.

April 16, 1951.

Alexander and Alexander, Jackson, for appellants, Albert Duling and Mrs. Kittie R. Duling.

Green, Green & Cheney, Jackson, for appellee and cross-appellant, Old Ladies' Home Association.

Barron C. Ricketts, Jackson, for appellee and cross-appellant, Mary Louise Hutchins.

McGEHEE, Chief Justice.

This controversy arose in the administration of the estate of Miss Lorena Duling, deceased, who was for many years a very highly respected and capable teacher in the city schools of Jackson, and the executor of whose last will and testament, Stokes V. Robertson, Jr., petitioned the chancery court for an adjudication as to the ownership of the contents of a certain safe deposit box which had been leased by Miss Duling and her two brothers, Albert and Charles H. Duling, from the Capital National Bank, at Jackson, and which deposit box contained the sum of $4,000 in cash at the time of the death of Miss Duling, which was kept in an envelope on the outside of which there appeared the notation 'Payment on Madison Property' and the figures $4,050 with $50 deducted therefrom. There were also some souvenior spoons and certain trinkets kept in this deposit box.

The petition of the executor asked that there be summoned as defendant thereto the following: namely, Mrs. Mary Louise Hutchins, who was claiming the fund as a close friend, associate teacher, and alleged donee of Miss Duling, and also the Old Ladies Home, both of Jackson, Mississippi, together with the two brothers of the deceased, to wit, Albert Duling and Charles Duling of Nashville, Tennessee, who were her two sale surviving heirs at law, in order that they could appear and present their respective claims.

A separate answer was filed by the claimant, Mrs Hutchins, wherein she asserted her right to the contents of this deposit box under and by virtue of an alleged gift thereof to her by Miss Duling in her lifetime, and as being evidenced by two letters in the handwriting of the alleged donor dated August 6, 1946, one addressed to her brother, Albert Duling, and the other to her brother, Charles Duling, and she also claimed the same by virtue of repeated statements alleged to have been made to her in that behalf by the donor on different occasions prior to her death, the time of the making of one statement only being alleged in the answer of this claimant. It is not claimed that this alleged gift was completed during the lifetime of the donor, but that 'her brothers, or either or both of them' were directed 'to make this gift effective after her death through the delivery of such money to the said Mary Louise Hutchins.'

The Old Ladies Home merely entered an appearance and filed no answer, but relied upon the asserted right of the executor to the contents of the deposit box as a part of the assets of the estate of Miss Duling, who died June 18, 1949, leaving most of her estate to the Old Ladies Home.

In his petition the executor alleged that he believed that the contents of said deposit box, especially of cash found therein, were assets of the said estate which it is his duty as executor to administer under the direction of the court and under the authority of the last will and testament of Miss Duling, dated September 1, 1948, wherein she devised and bequeathed unto her friend, Mrs. W. F. Marshall, with whom she resided, and to another friend, Mrs. Fannie Patterson, each, an article of personal property, and to the Old Ladies Home, in Jackson, a long list of furniture, rugs, bedding, a refrigerator, and other articles of personal property listed in the will, and directed the executor to sell 'all other furniture, silverware, cut glass, house furnishings, and equipment of every kind and character, and to turn over the proceeds thereof to the Old Ladies Home, together with any other cash that I may possess.' No reference is made to the claimant, Mrs. Hutchings, under the terms of the will; nor does it contain any reference to either of her brothers or to the contents of said deposit box.

A joint answer was filed to the petition of the executor by Albert Duling and Kittie R. Duling, she being the widow and sole surviving heir at law of Charles Duling who had died at 77 years of age, after the filing of the petition and prior to the filing of the answers thereto. They asserted their rights as joint owners of the contents of the deposit box under and by virtue of a joint tenancy agreement duly executed on November 12, 1943 by the said Lorena Duling and her brothers, Albert and Charles Duling, and which provided for the right of survivorship in any money thereafter placed in said deposit box by either of the parties to the joint tenancy agreement, the pertinent part of which agreement is as follows:

'It is agreed between the undersigned, lessees of Box No. 106, located in the safe deposit vault of Capital National Bank in Jackson that all property at any time heretofore, now or hereafter placed or contained in said box now does and shall, so long as it is contained therein, belong to the lessees jointly as joint tenants with right of survivorship therein, and may be withdrawn and removed therefrom, in whole, or in part, by all, or any one or more the lessees; and upon the deth of any one or more of the lesses and upon every such death the title to all property then contained in said box shall be in the survivors jointly, with the right of survivorship therein, or in the sole survivor if there be one, and such survivors, or survivor, and any one or more of them, subject to the restrictions contained in the laws of the State of Mississippi with reference to inheritance tax, shall have the right to remove from said box all or any part of the property contained therein.

'The lessees further agree on behalf of themselves, their respective heirs, executors, administrators and assigns, that Capital National Bank in Jackson, under no circumstances whatsoever shall be liable on account of the removal by any one or more of the lessees of all or any part of the contents of said box, either before or after the death of any one or more of the lessees.'

The above quoted provisions of the agreement are prefaced by the following note of warning in parentheses, to wit: 'Do not execute this agreement unless you are joint owners of the contents of box and desire the survivor, or survivors, to become the sole owners thereof in case of the death of any of you.'

Thus it will be seen that the foregoing agreement was not intended merely for the protection of the bank, but also to evidence the respective rights of the signers thereof in the contents of the deposit box.

On June 20, 1949, the second day after the death of Miss Duling, it appears that Charles Duling, who was in Jackson to attend her funeral, went to the Capital National Bank and was duly and lawfully permitted by it to withdraw the contents of the deposit box under and by virtue of the authority of the said joint tenancy agreement.

After Charles Duling had removed the contents of the deposit box, he carried the same to his hotel. Thereafter he had a conversation at the Wright and Ferguson Funeral Home with the claimant, Mrs. Hutchins, wherein she told him that Miss Duling desired for her to have the money that was in the deposit box and had told her so on several occasions, and was insistent that he turn the money over to her, with the result that he returned to his hotel, got the money, and later went back to the funeral home and delivered the same to said claimant, who later paid the $4,000 into the registry of the court to abide the order of the chancellor.

We learn of this conversation and the thoughtless action of Mr. Duling, in turning this fund over to the said claimant, only through the testimony of the executor, who was the only competent witness in that behalf.

The executor testified that although he did not know about the deposit box or its contents at the time he wrote the will of the deceased, he learned, after her funeral, when checking with the bank, that there was such a deposit box and that the same had been emptied and surrendered; that he then wrote to Mr. Charles Duling and requested that he come back to Jackson in regard to the matter. The executor stated that:

'He came down a few days later. I talked to him about what I had discovered and at that time he told me he had gone into the box and there was $4000.00 in cash in an envelope marked on the outside 'Sale of Madison property' and the figures $4,050. and right under that $50. deducted, a line drawn and $4,000 in figures on the outside of that envelope, and that he had found that in the safe deposit box and had taken it out together with some souvenir spoons and other trinkets Miss Duling had in the box; that he had taken that, and on June 20, 1949, at the Funeral Home, he had seen a Mrs. Mary Houise Hutchins, who had stated she was a close friend of Miss Lorena Duling and that Mrs. Hutchins had told him Miss Duling desired for her to have this money in the safe deposit box and was insistent in that respect, and that Miss Duling had wanted her to have it, had told her that on several occasions, and that he, Charles Duling, had turned this $4,000.00 in the envelope over to Mrs Hutchins, and that prior to surrendering it to Mrs. Hutchins he took the contents to his hotel room in Jackson and then carried it to Wright and Ferguson Funeral Home and there delivered it to Mrs. Hutchins, as I understood it. I believe that is about all the gist of that conversation except, of course, wondering what would be the proper procedure.'

The envelope which had contained the money was introduced in evidence and contained the following:

'$4050 PAYMENT ON MADISON PLACE

50

4000'

During the conversation between the executor and the said Charles Duling on his return to Jackson, the latter produced in...