Gibson v. Boling, 81-50

• Decision Date: 12 October 1981
• Docket Number: No. 81-50,81-50
• Citation: 274 Ark. 53,622 S.W.2d 180
• Parties: Merna W. GIBSON and Cecil L. Gibson, Appellants, v. Larry BOLING, Special Administrator, Appellee.
• Court: Arkansas Supreme Court

Page 180

622 S.W.2d 180

274 Ark. 53

Merna W. GIBSON and Cecil L. Gibson, Appellants, v. Larry BOLING, Special Administrator, Appellee.

No. 81-50.

Supreme Court of Arkansas.

Oct. 12, 1981.

Rehearing Denied Nov. 9, 1981.

Davis, Bassett, Cox & Wright, by Tilden P. Wright, III, Fayetteville and Oscar Fendler, Blytheville, for appellants.

Bradley & Coleman by Douglas Bradley, Jonesboro, for appellee.

PURTLE, Justice.

This is the second appeal from the Chancery and Probate Courts of Craighead County in the matter of the estate of Herman Gibson, deceased. We reversed the first case and remanded for a new trial. See Boling, Special Administrator v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979). The trial court, in the present case, held the disputed Certificates of Deposit were a part of the estate of the decedent and the widow was entitled to take a dower interest since she had elected to take against the will.

Appellants, sons of the decedent, make several arguments for reversal and each point will be set out separately below. We do not find reversible error and affirm the trial court.

Herman and Nora Gibson had been married more than 20 years at the time of his death on October 12, 1976. The present contest is between the decedent's two sons by a prior marriage, Merna W. Gibson (known as Wayne Gibson) and Cecil L. Gibson, and the only child of Nora Gibson, Donald Ray King. Donald King was the son of Nora Gibson by a prior marriage. The widow died between the first and second trial. The CDs were purchased by Herman Gibson during his marriage to Nora and were issued to Herman Gibson or Merna W. Gibson or Cecil L. Gibson. None of the various issuing banks required the purchaser to designate the payees or owners in writing or to execute the signature card or any other written document in connection with the CDs. Neither is there any evidence that the decedent sought to execute any such authorization in writing.

On July 28, 1976, Herman Gibson, along with his son, Wayne Gibson, went to the lockbox at the First National Bank and Trust Company of Jonesboro and withdrew the CDs. The lockbox at the First National was in the name of Herman Gibson and Nora Gibson. After the CDs were taken from the lockbox at the First National the decedent handed them to his son Wayne and told him the CDs now belonged to Wayne and his brother Cecil. The father accompanied the son across the street to the Citizens Bank where the son went into the area of the lockboxes and rented a box at the Citizens Bank, and signed the signature card after his name only was typed on the card. The father did not accompany the son into the area where the boxes were rented. Wayne took both keys to the box at the time he rented it. There is no evidence that he ever furnished Herman Gibson a key, and the box was not entered until October 15, 1976, three days after the death of Herman Gibson.

The will of Herman Gibson was admitted to probate; and, when the inventory was filed, it did not disclose the $100,000 in CDs which are the subject of this lawsuit. The widow, Nora, filed suit in the chancery court to determine the ownership of the CDs. At the first trial the chancellor held the CDs were an inter vivos gift to Wayne and Cecil Gibson. Upon remand, the chancellor (not the same chancellor as heard the first case) held that the CDs were part of the Herman Gibson estate because there was no valid inter vivos gift.

There is no dispute over the fact that Wayne Gibson took possession of the CDs on July 28, 1976, and that he placed them in a box he had rented. However, subsequent to the time Wayne Gibson rented the box and took a receipt, which had been lost, H. Gibson's signature appeared on the card for Wayne Gibson's lockbox at the Citizens Bank although his name was never typed on the card. The manner in which H. Gibson's name was added to the card is highly disputed. Wayne states he never authorized the addition of any other name to the card. He steadfastly maintains he rented the box in his own name and in his own right and that his father never had authority to enter the box nor did he have a key. Contradicting this testimony is that of the vault attendant, Christabel Elliott, who testified she rented the box to Wayne Gibson and that on the same date Wayne told her his father would be in later to sign the card. This testimony became so highly controversial that at the first trial one of appellants' solicitors resigned and testified that he was present when Ms. Elliott stated she did not know how the name "H. Gibson" became affixed to the card. The solicitor testified that Ms. Elliott stated it must have been the girl who relieved her that caused the name to be added. This testimony by the solicitor resulted in a remand for a new trial. The solicitor's partner had remained in the proceeding, and it was upon these grounds the case was remanded. The Gibson brothers both confirmed the testimony of solicitor Moore. At the trial Ms. Elliott testified that Wayne Gibson stated that his father would be in later to sign the card. She also testified that H. Gibson came in a few days later, identified himself, and told her his son Wayne had rented a box and wanted him to come by and sign the card. She said she permitted him to do so as it was in keeping with Wayne Gibson's instruction at the time he rented the box. She further stated that H. Gibson explained to her that he did not yet have a key to the box but that he would be transferring some things over from the First National at a later date. However, the box was not entered by anyone until after the death of H. Gibson.

The card for the box at Citizens Bank revealed the signature of "H. Gibson" to be genuine. This signature was added after the initial transaction. The receipt issued to Wayne after Herman's death listed the holder of the box as "Gibson, Wayne or H." Cecil Gibson's name was typed on the card and he signed it on October 15, 1976, subsequent to the death of H. Gibson. Between July 28, 1976, and October 12, 1976, several interest checks on the CDs were mailed to Herman Gibson. The interest payments were payable in the same order as were the CDs. It is not disputed that Herman Gibson cashed the checks and used the proceeds. On remand, a new trial was held in probate and chancery courts based primarily on the record of the previous trial. At the beginning of the second trial the court stated:

At this time, with agreement of counsel for all parties, the Court will try this matter upon the transcript of the record in the Chancery Court of Craighead County, Western District, Cause No. E-77-228, which was consolidated with and tried at the same time with Probate Cause in the Probate Court of the Western District of Craighead County, being P-76-190, and was appealed as Cause No. 78-146, Boling vs. Gibson, in the Supreme Court of Arkansas. Now, the Court will disregard all of the material in the record which is irrelevant, immaterial, incompetent and has now been abandoned. As the Court understands it, the real issues are the question of ownership of eight (8) Certificates of Deposit, which total $108,038.14. Either side may introduce any additional testimony or evidence, together with the previous transcript, will constitute the record of this cause for appeal. Does that give you an opportunity, Mr. Bradley, to do whatever you desire to complete a record?

After moving that certain exhibits introduced at the first trial be excluded, the appellants' solicitor elicited testimony from the former solicitors for the Gibson brothers. The testimony of solicitor Moore was essentially the same as it had been at the first trial. His testimony was directed at discrediting the testimony of Christabel Elliott. He testified as to the contradictions made about the opening of the lockbox at Citizens Bank by Wayne Gibson. Solicitor Michael Gibson testified not only to the testimony previously discussed relating to the contradictory statement of Christabel Elliott but also that he had written the will for his grandfather, Herman Gibson, and proffered testimony that he had instructed his grandfather on how to handle the CDs.

After the briefs were filed each of the solicitors moved to strike parts of the other party's abstract and brief. We recognize that this case was a heated case all the way through. In fact, it has been to this court, in one form or another, at least three times prior to this appeal. We grant appellants' request to strike that portion of the appellee's brief which implies that the former solicitors for the appellants were dishonest and committed what amounted to subornation of perjury. We think solicitor for appellee went entirely too far in this respect. However, we do not strike the other portions of the record requested to be stricken by the appellants but consider them only if relevant.

This should not occur again. Furthermore, the appellants' statement of the case was entirely too long and somewhat argumentative; however, we do not resort to the extreme remedy of striking the brief, pursuant to Rule 9(e)(2), Rules of Supreme Court.

We think it appropriate to briefly discuss Ark.Stat.Ann. § 67-552 (Repl.1980) at this point in the opinion. This statute deals with certificates of deposit issued in two or more names. Section (a) of the above-quoted statute requires the person opening such account to make a designation in writing to the banking institution concerning the certificate to be held in "joint tenancy" or in "joint tenancy with right of survivorship" or other similar language. It further provides that if such designation is made in writing, the survivor or survivors of the depositor shall be the lawful owners. This authorization made at a bank is commonly referred to as a will substitute. In the present case there was no designation in writing by Herman Gibson. Section (e) of the statute states that if a person holding a certificate of deposit shall file with the bank a...