Mohr v. Hampton

• Decision Date: 21 September 1964
• Docket Number: No. 5-3268,5-3268
• Citation: 238 Ark. 393,382 S.W.2d 6
• Parties: Ernestine MOHR et al., Appellants, v. Charles HAMPTON, Adm'r, et al., Appellees.
• Court: Arkansas Supreme Court

Page 6

382 S.W.2d 6

238 Ark. 393

Ernestine MOHR et al., Appellants, v.Charles HAMPTON, Adm'r, et al., Appellees.

No. 5-3268.

Supreme Court of Arkansas.

Sept. 21, 1964.

Gus R. Camp, Piggott, James Foreman, Metropolis, Ill., for appellants.

Howard A. Mayes, Kirsch, Cathey & Brown, Paragould, for appellees.

HOLT, Justice.

The appellants brought this action to establish ownership of $16,418.00 in cash and securities in their uncle's lock box by gift inter vivos or causa mortis.The Chancellor held that the decedent did not make a gift in either manner to the appellants.On appeal the appellants contend 'that the proof substantiates a gift either inter vivos or causa mortis.'

The decedent, Fred Folks, was 67 years of age at the time of his death.His permanent residence was in Rector, Arkansas where he had resided in the home of his aunt, Mrs. Adelia Hampton, for many years.Folks had been estranged from his divorced wife since 1931.His relationship with his daughter, Chelsene Lohranz, and only surviving heir, was marked by occasional correspondence and visits.He made annual vists to his home town of Vienna, Illinois to see his sister, the mother of the appellants, until her death in May, 1962.Folks' next visit to Vienna was on December 22, 1962.On this occasion he was visiting in the home of appellant, Mary Georgia Elliott, his niece, and her husband, Don Elliott.Except for a one-day return trip to Rector to attend to some business matters he remained in their home until his death on January 21, 1963.

Don Elliott testified that he was awakened about 11 or 11:30 P.M. by Folks who complained of being short-winded.After walking around, Folks stated he was better and returned to bed.Folks had previously complained of a heart ailment.Shortly thereafter Folks again called Elliott.Dr. Wakefield came to the Elliott home and an ambulance was summoned for the purpose of removing Folks to the hospital if it became necessary.Mr. and Mrs. Elliott, Dr. Wakefield, J. W. Robinson, owner of the ambulance and funeral director, his assistant, Mr. Lillidoll, Ernestine Mohr, appellant and Folks' niece, and her husband, Ernest Mohr, were all present in the Elliott house where Folks died at 1:15 A.M.Only two witnesses, Don Elliott and J. W. Robinson testified as to any knowledge of the alleged gift which occurred during the last ten or fifteen minutes of Folks' life.

Elliott's first version of what occurred at the time of the alleged gift was that while the doctor was making arrangements on the phone for Folks' admittance to the hospital, Folks asked for his overalls and pulled out a little blue book [a savings account book indicating a balance of $2,815.64 in a Kennett, Missouri bank] and 'these keys and he just opened it up and he put them in there like that and * * *'he asked me to give then to Mary Georgia and Ernestine [appellants] and said: 'These keys is theirs and whatever is behind that lock belongs to them.Don't give the others a thing.'; that he, Elliott, then gave his wife and sister-in-law each a key.Upon further questioning Elliott declared the decedent told him the lock box was in the Bank of Rector.Elliott first testified that when Folks placed the keys in the bank book there were two sets of keys; one consisting of the two lock box keys and the other set consisting of three keys.On further questioning Elliott testified that in addition to the two separate sets there was a loose key which later proved to be a key to the Dalton Hardware Store in Rector where decedent kept his carpentry tools.Elliott and appellants declared emphatically that each of appellants thereafter retained in their exclusive possession the lock box key which he had given to them and at no time thereafter were the lock box keys placed on a ring with the other keys.

This testimony is squarely contradicted by Arthur McNiel whom appellants visted in Rector the day following their uncle's death for the purpose of establishing if a will existed.Mr. McNiel testified that appellants and their husbands showed him several keys which were...