Hatcher v. Buford

• Decision Date: 12 January 1895
• Citation: 29 S.W. 641
• Parties: HATCHER v. BUFORD et al.
• Court: Arkansas Supreme Court

29 S.W. 641

HATCHER v. BUFORD et al.

Supreme Court of Arkansas.

January 12, 1895.

Appeal from circuit court, St. Francis county; Grant Green, Jr., Judge.

Bill by M. E. Hatcher against A. B. Buford and others to recover dower upon renunciation of the provisions made for her in her husband's will in lieu of dower, and to have a transfer of bank stock and notes made by him to defendant declared fraudulent as against her right of dower therein. From a judgment denying dower in the personalty so transferred, and allowing it in one-half the realty in fee, both parties appeal. Affirmed as to realty and notes, but reversed as to bank stock.

T. A. Hatcher, a prosperous merchant of Forrest City, Ark., died December 10, 1891. He had never had any children, but left a widow, M. E. Hatcher, the appellant. About two months prior to his death, he sold an interest in his store to Walter Buford, his nephew, taking in payment therefor notes of the said Walter amounting to $2,500. These notes Hatcher indorsed to his sister Mrs. A. B. Buford, and mailed them to her on the 9th of October, 1891. About one month before his death, Hatcher directed his agent to buy $4,000 of bank stock, and, about 10 days before, $1,000 more. This stock was issued in the name of Mrs. Buford, and was delivered by Hatcher's agent to her son Walter. Hatcher made a will, in which, among other bequests, was a provision for his wife, and Mrs. Buford was declared residuary legatee and devisee. Appellant's bill (omitting nonessentials) sets up a renunciation of the will, and that the disposition of the notes and bank stock in the manner indicated was done with intent to defeat appellant's dower, and was fraudulent; that the lands of which her husband died seised were a new acquisition. She prays to be endowed of half the notes and bank stock, also of half the fee in the real estate. The answer denied the fraud, claimed an absolute gift of the personalty, and that dower in the realty should be of one-half for life. The decree refused dower in the notes and bank stock, but granted it in one-half the real estate in fee. Both parties have appealed, and the issues presented by this record are: First. Was there a gift? Second. If a gift, was it inter vivos or causa mortis? Third. If a gift causa mortis, did it defeat the widow's dower? Fourth. Should dower in the realty be according to the law at the time of the marriage or at the death of the husband?

N. W. Norton, for appellant. John Gatling and Rose, Hemingway & Rose, for appellees.

WOOD, J. (after stating the facts).

1. Was there a gift? The only controversy on this point was as to the delivery. Delivery, of course, is essential to a gift. 3 Pom. Eq. Jur. § 1150; Ammon v. Martin, 59 Ark. 191, 26 S. W. 826. Mrs. Buford testified that the bank stock was not delivered to her until after her brother's death, while Walter, her son, testified that he delivered the bank stock to his mother before Hatcher's death. No question is raised as to the delivery of the notes. The evidence supports the finding of the chancellor that there was a gift of the bank stock and notes.

2. Was the gift inter vivos or causa mortis? The donatio inter vivos, as its name imports, is a gift between the living. It is perfected and becomes absolute during the life of the parties. The donatio causa mortis, literally, "is a gift in view of death." But this does not give us an adequate conception of the gift as it is understood and treated by the authorities. We find from an examination of these that where one, in anticipation of death from a severe illness then afflicting him, or from some imminent peril to his life, to which he expects to be exposed, makes a gift accompanied by the delivery of the thing given, either actual or symbolic, which is accepted by the donee, the law denominates such a gift a "donatio causa mortis." 3 Pom. Eq. Jur. § 1146 et seq.; 3 Redf. Wills, p. 322, § 42 et seq.; 2 Beach, Eq. Jur. p. 1144, § 1062; 1 Woerner, Adm'n, §§ 57, 58; Thornt. Gifts, p. 12, c. 1; 1 Williams, Ex'rs, 844; Gourley v. Linsenbigler, 51 Pa. St. 345; 2 Kent, Comm. 444; 2 Bl. Comm. 514; Hebb v. Hebb, 5 Gill, 506; Schouler, Pers. Prop. § 135. Were the notes and bank stock in controversy given under such circumstances? Both the pleadings and the proof settle conclusively that the gifts were in contemplation of the near approach of death from the illness then afflicting the donor, Hatcher, to wit, consumption. The gifts being made during the last illness, and when all hope of recovery was gone, the presumption is they were causa mortis. Merchant v. Merchant, 2 Bradf. Sur. 432; 3 Pom. Eq. Jur. § 1146, supra; Lawson v. Lawson, 1 P. Wms. 441; Henschel v. Maurer, 69 Wis. 576, 34 N. W. 926. The conditions inhering in a gift made under such circumstances do not have to be expressed. The law attaches them as a part of the essential nature of a gift causa mortis. 2 Beach, Eq. Jur. § 1063; Williams v. Guile, 117 N. Y. 343, 22 N. E. 1071; Grymes v. Hone, 49 N. Y. 17; Emery v. Clough, 63 N. H. 553, 4 Atl. 796. But it must not be forgotten that an absolute gift — one inter vivos — may be made by one upon his deathbed, and who is aware of the near approach of death from his then ailment. Thornt. Gifts, p. 24, § 21, and authorities cited. Is there anything in the proof to overcome the presumption of gifts causa mortis? As to the notes, the testimony shows that Hatcher was up and at his store on the day these were executed; that they were delivered on the same day; and that the donor was able to drive out after this transaction. It also shows that it was Hatcher's desire to give to his nephew Walter Buford an interest in the store, and that Walter declined to take it. The notes were executed for this interest, and immediately indorsed by the payee, the donor, to the donee, the mother of the maker of the notes. The gift to his nephew of an interest in his mercantile business seems to have been the real purpose of the donor. Such a gift, of course, would have been incompatible with the limitations which the law imposes upon the use and enjoyment of the subject-matter of gifts causa mortis, and the attribute of revocability attaching to such gifts. 2 Beach, Eq. Jur. § 1063; 3 Redf. Wills, pp. 322-343. We think the time and circumstances of the gift of the notes, as indicated by the proof, supports the chancellor's finding that this was a gift inter vivos. The same, however, cannot be said of the bank stock. Hatcher was upon his deathbed, and unable to attend to any business, when this was given. Four thousand was taken out about one month before his death, and one thousand only about ten days before. It was not delivered until a few nights before his death. We find nothing whatever in the proof to take the bank stock out of the presumption that it was a gift causa mortis, and nothing to support the chancellor's conclusion as to this.

3. Being a gift causa mortis, did it defeat the widow's dower? Section 2541, Sand. & H. Dig., provides: "A widow shall be entitled, as a part of her dower, absolutely and in her own right to one-third part of the personal estate, including cash on hand, bonds, bills, notes, book accounts and evidences of debt whereof the husband died seised or possessed." Was the donor seised or possessed of the bank stock at the time of his death? The terms "seised" or possessed," as thus used with reference to personalty, mean simply ownership, which carries with it the actual possession, or a right to the immediate possession. The real inquiry, then, is as to when the title or property in the subject-matter of a donatio causa mortis passes. We are aware that there is conflict and confusion in the authorities upon this point, doubtless growing out of the modes of donatio causa mortis recognized originally by the Roman jurisprudence, whence the doctrine is derived. Under one of these, the subject-matter of the gift became at once the property of the donee, but on condition that he should return it to the donor in the event of his recovery. Under another, the gift was made upon condition that the thing given should become the property of the donee only in the event of the donor's death. Under the former, delivery was essential; under the latter, it was not. Thornt. Gifts, p. 44; Ward v. Turner, 2 Ves. Sr. 431; Abb. Desc., Wills & Adv. 169. Mr. Roper, in his work on Legacies, tells us that, after the contest upon the subject had subsided, Justinian gives a definition of "donatio causa mortis," which alone is the proper one. 1 Rop. Leg. 1. Mr Pomeroy quotes this definition, and translates it as follows: "A donatio causa mortis is that which is made in expectation of death; as when anything is so given that, if any fatal accident befalls the donor, the person to whom it is given shall have it as his own; but if the donor should survive, or if he should repent of having made the gift, or if the person to whom it has been given should die before the donor, then the donor shall receive back the thing given." 3 Pom. Eq. Jur. § 1146. Judge Redfield, in his work on Wills, says: "The conclusion of Justinian's definition seems to embrace the essentials of the gift, viz. the gift is such that the donor prefers himself to retain dominion over it rather than have the donee acquire it. But he prefers the donee should have it rather than his heir." 3 Redf. Wills, 322. Those authorities which hold that the property in the thing given passes upon delivery and during the life of the donor have obviously followed the kind of donatio causa mortis referred to supra, existing under the Roman law prior to Justinian's definition, which recognized the subject-matter of the gift as becoming at once the property of the donee, defeasible upon a condition subsequent, and under which delivery was essential. This is a formidable position, and supported by high authority. Basket v. Hassell, 107 U. S. 602, 2 Sup. Ct. 415; Chase v. Redding, 13 Gray, 418; Marshall v. Berry, ...