Lowe v. Hart

• Decision Date: 31 January 1910
• Citation: 125 S.W. 1030,93 Ark. 548
• Parties: LOWE v. HART
• Court: Arkansas Supreme Court

125 S.W. 1030

93 Ark. 548

LOWE v. HART

Supreme Court of Arkansas

January 31, 1910

[Copyrighted Material Omitted]

Appeal from Greene Circuit Court; Frank Smith, Judge; affirmed.

STATEMENT BY THE COURT.

J. H Carroll died March 2, 1908. His only known next of kin were seven children of a brother who had died in Leeds, England. Carroll deposited with the First National Bank of Paragould Arkansas, a sum of money, and received the following certificate:

"The First National Bank of Paragould

"No 1323.

"Certificate of deposit not subject to check.

"Paragould, Arkansas, Oct. 18, 1907.

"J. H. Carroll has deposited with this bank eighteen hundred ten and no-100 dollars ($ 1,810), payable to the order of himself in current funds on return of this certificate properly indorsed.

"Not over two thousand dollars--$ 2,000.00.

"With interest at the rate of 4 per cent. per annum if left 6 months; -- per cent. per annum if left -- months.

"J. M. Lowe, Cashier."

This suit was brought May 22, 1908, against the bank; appellee alleging that on or about the 19th of February, 1908, J. H. Carroll gave to appellee the certificate of deposit and the money represented by it, and that she is the lawful owner and holder thereof; that on the 2d day of March, 1908, J. H Carroll died; that said certificate is past due and unpaid. She prays judgment for the amount and her costs.

The bank on August 21, 1908, filed petition for "bill of interplea" under section 6013, Kirby's Digest, setting up the death of Carroll, intestate, that J. M. Lowe was the administrator of his estate, and praying for an order requiring said J. M. Lowe as administrator to appear within such time as the court may fix, and either maintain or relinquish all claims he may have as such administrator, and that such judgment be rendered as will protect it against the payment of said certificate of deposit or any part thereof to any other person or persons whomsoever," etc.

The citation was issued, and Lowe responded, setting up that he was the administrator of J. H. Carroll, deceased, and asking that he be substituted as party defendant in said cause of action; that the style of said cause of action be changed to 'Agnes Hart, plaintiff, v. J. M. Lowe, as administrator of the estate of J. H. Carroll, deceased, defendant,' and that as such he be permitted to plead, answer or demur to said plaintiff's complaint, and for all other proper and needful relief."

On September 2, 1908, Lowe, administrator, filed a motion to compel plaintiff to make her complaint more specific by stating whether she claimed the certificate as a gift inter vivos or causa mortis. This motion was overruled, and appellant duly excepted.

On September 2, 1908, Lowe, administrator, filed his answer, alleging therein his appointment, denying the gift, and setting up Carroll's mental incapacity to make a gift.

On the 8th day of February, 1909, the cause was submitted to a jury upon the evidence and under the instructions of the court. A verdict was rendered for plaintiff.

Two days after the trial, on February 10, 1909, Lowe, as administrator, filed his motion for the allowance of an order nunc pro tunc, showing that the style of the cause of action had been changed on motion of appellant before the hearing, substituting him as defendant and making the style of the case: "Agnes Hart, plaintiff v. J. M. Lowe, as administrator of the estate of J. H. Carroll, deceased, defendant."

The court heard evidence on the motion for nunc pro tunc order. The cashier of the First National Bank testified that he made an entry in the certificate of deposit register of the bank opposite certificate 1323, which is the certificate involved here, as follows: "Transferred to court, 9-1-08; do not pay except by instruction of court. Lowe, Cashier." The clerk of the court was introduced and identified the record of the minutes of the judge's docket. These were as follows: "Third day: Response of administrator and petition to be made party defendant. Order granted, and administrator made party defendant, and exceptions."

The court overruled the motion for order nunc pro tunc, stating: "So far as the recollection of the court goes, the record reflects what was done. * * * I think the order of record upon the minute made on the second day practically takes care of both propositions," [i. e. for the bank to pay the money to the clerk, and for appellant to be made a party defendant.] The main idea at the time was, for a variety of reasons, to make the administrator a party, and over the objection of plaintiff this was done, and that is what is intended to be done by these orders." The appellant duly objected and excepted to the court's ruling. Counsel for appellee state the facts as they might have been found in her favor as follows:

J. H. Carroll came to this country many years ago from Ireland. He was a section foreman on the Paragould Southeastern Railway, and lived for some time with Mr. and Mrs. Hart. He had no other home, and had no relatives except a brother in England, whom he had not heard from in nine years. When Mr. and Mrs. Hart left the P. S. E. Railway and moved to Paragould, Mr. Carroll expressed great regret that they moved away and left him. He told Mr. Wright and Mr. Stout that he liked to live with Mr. and Mrs. Hart; that their house was his home; that Mrs. Hart had treated him so well when he was sick at her house, and had taken such good care of him, that she was like a mother to him, and the family were more like homefolks to him than anybody he had ever met.

About February 1, 1908, Mr. Carroll took sick, and his friend, Mr. Wright, engineer on the P. S. E. railroad, brought Mr. Carroll to Paragould on his train. At the station Mr. Wright told Mr. Carroll that he must go to the sanitarium, but Mr. Carroll said: "No, I want to go home." Wright asked him where his home was, and Mr. Carroll replied: "John Hart's." Wright insisted that he go to the sanitarium, but Mr. Carroll as strongly insisted on going to Hart's. Upon Wright's repeated and urgent requests Mr. Carroll finally consented to go to the sanitarium. But he was not satisfied there. He sent for Mrs. Hart to come up and see him, and she did so.

At the sanitarium Mr. Carroll gave Mr. Wright some instructions about unloading his ties, and Mr. Wright told him not to bother himself about ties, and said to Mr. Carroll: "You have got plenty of money, haven't you?" and Mr. Carroll then showed Mr. Wright the certificate in controversy and two P. S. E. railroad checks for wages. Mr. Wright then told him that he needn't bother himself any more about ties, that he had enough money to last him as long as he would live, and then Mr. Wright asked him, "What are you going to do with this stuff anyhow? You may die." And Mr. Carroll said, "John Hart's folks will know what to do with my stuff." Mr. Carroll then told Wright to tell John Hart to come up there; that he wanted to go to John Hart's house; that he wanted to get away from the sanitarium; that he didn't like the place.

Mr. Carroll told Dr. Dickson, one of the proprietors of the sanitarium, that he wanted to go over to Mrs. Hart's home; that he had lived there before; he thought he wasn't going to get well in the sanitarium, and Dr. Dickson intimated to him that he could not get well, and he seemed to want to die at the home of his friend Hart. At Mr. Carroll's request he was taken to the home of Mrs. Hart.

Upon entering Mrs. Hart's home Mr. Carroll, after seating himself by the fire, took an envelope from his pocket, opened it, took out of it the certificate of deposit, read it carefully, and then, in the presence of Mrs. Gregory, handed it to Mrs. Hart, and said: "Here is a check for my money." Mrs. Hart took it and put it away. Dr. Dickson advised Mrs. Hart to get Mr. Carroll to make a will and to call in Father Feurst to advise him to do so, but Mr. Carroll would not talk business with the priest. Mr. Carroll's old friend, Mr. Stout, called to see him several times, and on one occasion he talked about making a will. Mr. Carroll said he had thought at first he would make a will, but afterward changed his mind; that he had already given the certificate to Mrs. Hart; that if he willed what he had away he would die a pauper; Mr. Carroll asked Mrs. Hart to get the certificate and show it to Mr. Stout; and he asked Mr. Stout to look it over and see if it is "O. K.," and in the presence of Mr. Stout, Mrs. Gregory and Mrs. Hart, Mr. Carroll said he had given the certificate to Mrs. Hart, and handed it back to Mrs. Hart. He said then when he handed it to her that he had given it to her, and she would know what to do with it in a few days. Mrs. Hart kept the certificate as her own property from the time Mr. Carroll first gave it to her. Mr. Carroll was of sound mind, and knew what he was doing when he gave Mrs. Hart the certificate and when these various transactions occurred.

The jury might have found the facts as thus stated. The court instructed the jury as follows:

"1. Gentlemen of the jury: Mrs. Hart claims that Mr. Carroll gave her the certificate of deposit which was introduced in evidence. Mr. Carroll is dead, and his administrator now comes and denies that Mr. Carroll ever gave Mrs. Hart this certificate, and further denies that at the time of the alleged gift Mr. Carroll had sufficient capacity to make a valid gift."

"2. You are instructed that, in order for you to find that Mr Carroll made a valid gift of the certificate in question, you must find, first, that Mr. Carroll was at the time of the alleged gift of sound mind, that is, that he knew and understood the effect of his act and intended that effect second that he actually delivered the certificate in question to Mrs. Hart;...