Fancher v. Kenner

• Citation: 161 S.W. 166,110 Ark. 117
• Parties: FANCHER v. KENNER
• Decision Date: 10 November 1913
• Court: Supreme Court of Arkansas

161 S.W. 166

110 Ark. 117

FANCHER v. KENNER

Supreme Court of Arkansas

November 10, 1913

Appeal from Carroll Circuit Court, Eastern District; J. S. Maples Judge; affirmed.

STATEMENT BY THE COURT.

The appellant, as executor of the estate of Margaret C. Kenner filed in the probate court of Carroll County a petition alleging that appellee had in his possession money and personal property belonging to the estate of Margaret C Kenner, and that he withheld or concealed the same from the petitioner. The petition asked that Kenner be required to answer what property he had belonging to the estate of Margaret C. Kenner, and that he be required to deliver the same to the executor.

There was a trial in vacation before the probate judge, who found that Kenner had $ 200 belonging to the estate and other articles of personal property. Later this finding of the probate judge was made the judgment of the court, and the matter was appealed to the circuit court. Trial was had in the circuit court as to the title to the property which the appellee had in his possession. The appellee claimed that the property he had in his possession had been given to him by his mother, and the testimony introduced by him tended to prove his contention. Appellant, on the other hand, contended that the property which the testimony showed appellee had in his possession, had been disposed of by Margaret C. Kenner by will and that the same was the property of the estate. There is testimony tending to support his contention.

The cause was submitted to a jury and the verdict was in favor of the appellee as to all the articles claimed by him except the buggy. As to that, their verdict was in favor of the appellant. The court rendered a judgment against appellant for one-half the costs, and appellant prosecutes this appeal. Other facts stated in the opinion.

Judgment affirmed.

Guy L. Trimble, for appellant.

1. It was error to tax one-half the cost against the appellant. The jury awarded to appellant property claimed as belonging to the estate, the buggy, which appellee denied. The verdict should have carried with it the costs. Section 967 Kirby's Digest, does not apply in this case, but only where there are several causes of action.

2. To make a gift causa mortis effective, there must be a delivery, and the court's instructions 7 and 8 without qualification are erroneous.

Festus O. Butt, for appellee.

1. Delivery is an essential part of a gift, either inter vivos or causa mortis, and is so understood. It is not necessary that the court mention the matter of delivery in its instructions, unless there is a question raised by the evidence as to the fact of delivery, or unless the court's attention is called to the omission. 87 Ark. 602; 89 Ark. 300; 93 Ark. 209; Id. 451; 92 Ark. 111; 94 Ark. 254; Id. 282; 132 S.W. 643; 133 Id. 845; 135 Id. 811; 144 Id. 519; 99 Ark. 226; 98 Ark. 352.

2. The court properly assessed one-half the cost against the appellant. It was a matter of discretion with the court to tax part of the cost against appellant, especially in view of a large part thereof having been incurred unnecessarily by appellant. Kirby's Dig., § 967; 17 Ark. 361; 65 Ark. 219.

OPINION

WOOD, J., (after stating the facts).

The appellant complains because the court refused to suppress the deposition of a certain witness, giving as his reason that the witness declined to answer questions, and that her statements were inadmissible. We have examined the questions which appellant contends the witness refused to answer, and do not find that they tended to elicit facts that were material to the controversy, and therefore there was no prejudice in the court's ruling.

The court gave, among others, the following instructions:

"7. The court instructs the jury, that one has a right to dispose of his property as he or she sees fit, and in this case, if you find from the evidence that Mrs. Margaret C. Kenner, prior to her death, when she was of sound mind and disposing memory, gave to the defendant the property, or a part of the property in question, intending that it should be his property, then such property claimed as a gift, if you find a gift was made, would in law be the property of the defendant."

"8. As to whether or not the property in question was the property of Rulus Kenner, by gift or otherwise, from his mother is a question of fact for you to determine from all the facts and circumstances in evidence before you in this cause."

The appellant saved a general objection to each of the instructions, and he contends here that the instructions should have told the jury that there must be a delivery in order to constitute a gift. The instructions were correct declarations of law, applicable to the issue that was being tried. While delivery of a gift is an essential element of the gift, either inter vivos or causa mortis, it is not necessary for the court to so instruct the jury unless requested to do so. The gift of a thing includes the delivery thereof, and the instructions were sufficient to present the issue of fact raised by the testimony. If the appellant had desired the court to define more specifically the elements constituting a gift, including delivery, doubtless it would have done so if it had been so requested.

Having contented himself with the general objection at the trial, he can not now urge a specific objection on appeal to an instruction which is not inherently erroneous. St. Louis, I. M. & S. Ry. Co. v. Richardson, 87 Ark. 602, 113 S.W. 794; Mo. & North Ark. Rd. Co. v. Daniels, 98 Ark. 352, 136 S.W. 651; Geren v. St. Louis, I. M. & S. Ry. Co., 99 Ark. 226, 137 S.W. 1100. See, also, Strickland v. Strickland, 103 Ark. 183, 146 S.W. 501; Harmon v. Frye, 103 Ark. 584, 148 S.W. 269.

The appellant objects to the judgment taxing him with one-half of the costs. Sections 60, 61 and 62, under which the executor instituted this proceeding in the probate court, embody the procedure as contained in chapter 4, §§ 47, 48, 49 and 50 of the Revised Statutes, as amended by the act of March 17, 1885. The amendment of 1885 added to the laws contained in the Revised Statutes by vesting the probate judge with the right also to proceed in vacation in the same manner as the probate court. This court, in passing upon the provisions of the Revised Statutes, in Moss v. Sandefur, Executor, 15 Ark. 381 said that, their purpose was "not to invest the probate court with jurisdiction of contested rights, and matters of litigation, as to the title to property, between the executor or administrator...