Gordon v. Clark

• Decision Date: 13 June 1921
• Docket Number: 44
• Citation: 232 S.W. 19,149 Ark. 173
• Parties: GORDON v. CLARK
• Court: Arkansas Supreme Court

232 S.W. 19

149 Ark. 173

GORDON v. CLARK

No. 44

Supreme Court of Arkansas

June 13, 1921

Appeal from Sebastian Chancery Court, Greenwood District; J. V Bourland, Chancellor; reversed.

STATEMENT OF FACTS.

Appellant brought this suit in equity against appellees, and the prayer of her complaint is that the title to a one-half interest in the property described in the complaint be divested out of appellees and vested in her.

The complaint alleges that on the 11th day of December, 1918, A T. McMillan departed this life intestate in the Greenwood District of Sebastian County, Arkansas, and that he was a citizen of that county and State at the time of his death that at the time of his death he owned personal property consisting of about $ 350 in Liberty Bonds; about $ 400 in War Savings Stamps, about $ 90.50 deposited in a bank and the proceeds of two policies of insurance, one in the sum of $ 735 and the other in the sum of $ 1,000.

That the said A. T. McMillan became sick, and realizing that he had but a few hours more to live, called to his bedside Wilmot Clark, Jr., and delivered to him an envelope containing the Liberty Bonds, War Savings Stamps, insurance policies, bank book showing the amount deposited to his credit in the bank, and some deeds to real estate. That he directed said Wilmot Clark, Jr., to divide said property equally between appellant, who was the mother of his deceased wife, and his own mother. Appellant further states that William M. McMillan and Susan McMillan, who were defendants in the court below, were respectively the father and the mother of A. T. McMillan, deceased, and that the other appellees, who were also defendants in the court below were his brothers and sisters.

Appellee Wilmot Clark, Jr., filed an answer, in which he admitted that A. T. McMillan, realizing that he was about to die, called him to his bedside and gave him a packet containing Liberty Bonds, War Savings Stamps, insurance policies, bank book and deeds, and directed him to divide his property equally between his mother and the mother of his deceased wife; that he hold said property subject to the orders of the court.

Appellees allege that the chancery court has no jurisdiction over the cause, and say that the property claimed by appellant is now in the control of the probate court, which has exclusive jurisdiction of the distribution thereof. They allege that Wilmot Clark, Jr., is the administrator of the estate of A T. McMillan, deceased, and that he holds the property described in the complaint to be distributed to the heirs at law of A. T. McMillan, deceased, in accordance with the laws of the State, and that said estate is now in process of administration in the probate court of Sebastian County.

Appellees also interposed a plea of res judicata, based on the following facts:

After the death of A. T. McMillan, deceased, Wilmot Clark, Jr., appeared in the probate court and stated to said court that A. T. McMillan, realizing that he was about to die in a few hours, gave to him in a package the property described above, consisting of Liberty Bonds, War Savings Stamps, bank book, insurance policies and deeds.

The proceedings had before the court were those prescribed for the proving of nuncupative wills. The court reduced the transaction had between A. T. McMillan just prior to his death and Wilmot Clark, Jr., to writing and admitted the same to probate as a nuncupative will.

The heirs at law of A. T. McMillan duly prosecuted an appeal to the circuit court. The circuit court found that on the 14th day of January, 1918, A. T. McMillan and Etta McMillan, his wife, each made a will in writing devising to the other all of his or her property; that said Etta McMillan died a few days before her husband, and that all of her property vested in her husband under her will; that her husband, A. T. McMillan, died intestate on December 14, 1918, and that under section 10497 of Crawford & Moses' Digest, no nuncupative will is good where the estate bequeathed exceeds the value of $ 500; that the oral directions given by A. T. McMillan to Wilmot Clark, Jr., for a distribution of his estate, bequeathed property exceeding the value of $ 500, and for that reason could not be reduced to writing and probated as a nuncupative will.

It was therefore adjudged by the court that the judgment of the probate court, reducing said directions to writing and admitting the same to probate as a nuncupative will, should be canceled and set aside.

It was further ordered and adjudged that a copy of the judgment of the circuit court be transmitted to the probate court and entered on the records of that court. No appeal was taken from this judgment.

Upon this state of the record the case came on for hearing in the chancery court on October 18, 1920, and it was decreed that the complaint of appellant should be dismissed for want of equity. The case is here on appeal.

Decree reversed, and cause remanded.

Webb Covington and G. L. Grant, for appellant.

1. There is only one question in this case, i. e., has the chancery court jurisdiction to try and determine the cause? The question of res judicata can not be considered, for that is an affirmative defense to be heard in the trial below, and, as there was no trial and no testimony introduced by either party, nothing is open now except the question of jurisdiction. There was a gift to appellant. The delivery to Clark of the property was the best one that the nature of the property at the time admitted. The gift was intended in presenti and accompanied by delivery and sufficient. 59 Ark. 96; 93 Id. 563. The probate court has no jurisdiction of this case. 110 Ark. 119. Probate courts can not try the title to property. 111 Ark. 357; 72 Id. 330; 227 S.W. 1-3.

2. The chancery court has jurisdiction, as a trust was involved. 3 Am. L. Rep. 912-13; 101 Ark. 455; 227 S.W. 1-3.

W. A. Falconer, Jos. R. Brown and Geo. W. Johnson, for appellees.

1. Appellant's brief is not in conformity with rule 9 of this court.

2. The appeal presents only a moot question, which this court will not decide. 90 Ark. 165; 91 Id. 292; 92 Id. 242.

3. The complaint stated no cause of action, and was properly dismissed. If the judgment was correct on any ground, whether that ground was relied on by the lower court or not, the cause should be affirmed. 88 Ark. 140; 107 Id. 462; 126 Id. 159; 117 Id. 304.

4. The case was properly dismissed, as it was res judicata.

The complaint attempts to set up a gift causa mortis. Under the circumstances here the law presumes a gift causa mortis and not inter vivos. 131 Ark. 507. Real property is not the subject of a gift causa mortis. 20 Cyc. 1242. Where the donor intended to give property as a whole, a gift of part of it only will not suffice, and the whole gift must fail. 20 Cyc. 1231. The complaint shows that McMillan made Clark his agent to make delivery after his death, and this is a nullity. 44 Ark. 42.

Money in bank and the proceeds of an insurance policy do not pass by delivery. 99 Ala. 441; 12 So. Rep. 420; 92 Am. Dec. 481.

No trust is involved here, and the cirucit court had jurisdiction. 10 N.E. 352. The judgment of the circuit court is not open to collateral attack, and every presumption is in favor of the court's jurisdiction. 77 Ark. 497; 101 Id. 390. Want of jurisdiction was not pleaded in the lower court, and appellant is now precluded. 119 Ark. 413; 110 Id. 119. The probate court is a court of superior jurisdiction, and its judgment not subject to collateral attack. 92 Ark. 611, 616.

The judgment against Mrs. Gordon is not void, and by long acquiescence of the parties jurisdiction may be conferred on the probate court. 110 Ark. 119; 44 Id. 42.

OPINION

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

The chancery court erred in sustaining the plea to the jurisdiction of the court. It is true that the estate of A. T. McMillan, deceased, was in course of administration in the probate court. The question of the title to the property did not arise in that court as a necessary incident to the administration of other matters over which the probate court had jurisdiction.

The present case involves a contest between the administrator and a claimant to certain property of the estate, and it is well settled that the probate court has no jurisdiction of a contest between an executor or administrator and others over the title of property belonging to the deceased. King v. Stevens, 146 Ark. 443, 225 S.W. 656, and cases cited, and Union & Merc. Trust Co. v. Hudson, 147 Ark. 7, 227 S.W. 1.

Again it is contended that the decree of the chancery court should be upheld on the appellees' plea of res judicata. To sustain that plea it was shown that Wilmot Clark, Jr., had represented to the probate court that A. T McMillan, deceased, on his death bed had delivered to him a packet containing certain property and directed that he should divide it equally between appellant, the mother of his deceased wife, and his own mother. The probate court ordered the statement to be reduced to writing and to be admitted to probate as a nuncupative will, and, on appeal to the circuit court, probate was denied on the ground that the property involved amounted to more than $ 500, and that, under section 10497 of Crawford & Moses' Digest, no nuncupative will is good where the estate bequeathed exceeds the value of $ 500. To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear from the record, or from extrinsic evidence that the particular matter sought to be concluded was raised and determined in the prior suit; or that it might have been litigated in that case. Livingston v. Pugsley, 124 Ark. 432, 187 S.W. 925, and Morton v. Linton & Plant, 138 Ark. 297, ...