Evans v. Wells

• Decision Date: 05 May 1919
• Docket Number: 207
• Citation: 212 S.W. 328,138 Ark. 454
• Parties: EVANS v. WELLS
• Court: Arkansas Supreme Court

212 S.W. 328

138 Ark. 454

EVANS v. WELLS

No. 207

Supreme Court of Arkansas

May 5, 1919

Appeal from Randolph Chancery Court; Geo. T. Humphries; Chancellor affirmed.

Decree affirmed.

G. B Oliver, for appellants.

1. There is no evidence of a gift from the wife to the husband. It was the property of the wife the same as if a femme sole. Kirby's Digest, §§ 5207-5227-9; 116 Ark 142-152. The evidence is not clear and satisfactory. 84 Ark 355-8; 101 Id. 451-6. The burden was on him to show a gift from the wife and he has failed. He was not a competent witness. Kirby's Digest, § 3905; 81 Ark. 147-153. But if competent it was not clear and satisfactory, and is not corroborated at all. 7 C. J.; § 394; 174 S.W. 492. Appellee's testimony is contradictory and contradicted by many witnesses. The decree should be reversed and a decree rendered here against appellee for $ 5,000 and interest.

Jerry Mulloy and S. A. D. Eaton, for appellee.

1. A trial de novo in chancery requires a full abstract of the testimony. The abstract filed here does not comply with the rules of this court, and the decree should be affirmed under Rule 12.

2. The evidence does not warrant a finding upon which a trust could be declared in the lands of appellee. The question is one of fact, and a gift to appellee by the wife was established. The findings of a chancellor will be sustained unless clearly against the preponderance of the evidence. 89 Ark. 309; 116 S.W. 668; 91 Ark. 69; 120 S.W. 400; 91 Ark. 149; 120 S.W. 400-843; 103 Ark. 473; 142 S.W. 567. The evidence clearly shows a gift to appellee by the wife. The testimony of Wells was given by him as a witness for appellants. 33 Ark. 91; 32 Id. 337; 53 Id. 99; 131 S.W. 44; 132 Id. 462; 142 S.W. 1122. No specific objections were made to his testimony. 124 Ark. 26; 186 S.W. 312; 112 Ark. 305; 169 S.W. 83. The wife being dead, there is no merit in the objections to appellee's testimony. 75 Ark. 127; 86 S.W. 818; 41 Ark. 177; Rodgers on Dom. Rel., § 302; 29 Ark. 603; 40 Cyc. 2230 (10).

3. The testimony of appellee that the money was a gift is supported by all the conditions and circumstances of the case.

4. Appellants were guilty of laches in waiting so long. 109 S.W. 651.

5. No fraud or coercion is shown on the part of Wells, but the testimony shows that Mrs. Wells intended a gift, and did give the money to her husband. 75 Ark. 127; 86 S.W. 818; 183 Id. 746; 130 Id. 515; 142 Id. 848.

OPINION

SMITH, J.

Appellee G. W. Wells was married to Millie Harbison, a widow, on August 21, 1900, at which time she owned forty acres of land in her own right and had dower and homestead in two hundred acres more. On October 27, 1905, she sold her interest in these lands for five thousand dollars cash, and on October 30 deposited this money in the Bank of Corning in the name of Millie and G. W. Wells, the latter of whom at the time had an individual account with the Bank of Corning. This five thousand dollars was at various times and in various amounts beginning March 27, 1906, and ending December 7, 1909, passed to the credit of G. W. Wells' individual account by means of debit slips and by him checked out. Mrs. Wells died without descendants on April 25, 1912, and her heirs, who are the appellants here, began this suit on May 12, 1916, to recover this money and to have a trust declared in their favor against certain lands which G. W. Wells had purchased, upon the ground that the lands had been purchased with portions of this money. The answer denied the use of any of this money in the purchase of the lands, but admitted the appropriation of the deposit and alleged that Mrs. Wells had given him the money and that he had expended it for their common use and benefit.

The plaintiffs filed two amendments to their complaint, consisting of interrogatories propounded to the defendant, all of which he answered under oath as he was requested to do. These questions and answers related to the acquisition and disposition of the deposit. The court dismissed the complaint as being without equity, and this appeal has been duly prosecuted to reverse so much of the decree as found that Mrs. Wells had given the deposit to appellee. No complaint is made here of the finding adverse to appellants' contention that no trust existed in the lands.

Appellants cite sections 5207 and 5227 of Kirby's Digest as being applicable and controlling under the issues joined in the case. The first of these sections is Section 7 of Article 9 of the Constitution, which gave to any femme covert the same property rights enjoyed by femme soles; while the second section is taken from Act No. 91 of the Acts of 1875, p. 172, entitled, "An act to protect married women in the enjoyment of their separate property." We think, however, that the sections of the digest referred to are of no controlling importance here. Indeed, section 5207, which provides that the fact that a married woman permits her husband to have the custody and management of her separate property shall not, of itself, be sufficient evidence that she has relinquished her title to said property, but that there shall be a presumption of agency, also provides that this presumption may be rebutted by any evidence establishing a sale or gift by the wife to the husband of such property. So that the question to be decided is one of fact, which may be stated to be, Did Mrs. Wells give this money to her husband?

Appellants now complain that appellee was permitted to testify that his wife did in fact give him this money as being in violation of section 3095 of Kirby's Digest. But if this be true, and we do not so decide (Hannaford v. Dowdle, 75 Ark. 127, 86 S.W. 818), appellants are in no position to complain, as they developed this testimony on their...