Park v. McClemens

• Decision Date: 04 April 1960
• Docket Number: No. 5-2055,5-2055
• Citation: 231 Ark. 983,334 S.W.2d 709
• Parties: Gladys PARK, Appellant, v. John William McCLEMENS, Executor, Appellee.
• Court: Arkansas Supreme Court

Page 709

334 S.W.2d 709

231 Ark. 983

Gladys PARK, Appellant, v.John William McCLEMENS, Executor, Appellee.

No. 5-2055.

Supreme Court of Arkansas.

April 4, 1960.

Rehearing Denied May 23, 1960.

Robert M. Lowe, Paul Jones, Texarkana, for appellant.

Smith & Sanderson, Texarkana, for appellee.

WARD, Justice.

This litigation is concerned with the ownership of several bank accounts.Appellant, as the survivor, claimed title to four bank accounts upon the death of her aunt on the ground that they were joint accounts.The trial court held against her contention, hence this appeal.The facts which are somewhat involved but not materially in dispute are substantially as hereinafter set forth.

Mrs. Janie Witten who owned and managed a modest business in Texarkana for many years died testate July 31, 1958, and the appellee, John William McClemens, was appointed the executor of her estate.Prior to her death, on April 24, 1957, Mrs. Witten executed a will in which she left part of her estate to another niece, Ida Jo McClemens, who is at this time a student in school.During several years Mrs. Witten had deposited funds from time to time in two separate banks in Texarkana, which funds are the subject of this litigation.At the time of her death there were these accounts: In the State National Bank there was Savings AccountNo. 4619 in the amount of $2,259.63 and a checking account in the amount of $2,639.15.In the Texarkana National Bank there was Savings AccountNo. 4931 in the amount of $2,159.59 and a checking account in the amount of $1,533.90.All the above mentioned funds were placed in the banks by Mrs. Witten and were there held in her name until about the 8th day of August of 1957 when she and appellant signed signature cards which were delivered to the banks.Thereafter the banks placed appellant's name on each account record along with the name of Mrs. Witten which had been there all along.It is, of course, the contention of appellant in this litigation that the effect of placing her name on the above accounts constituted her a joint owner with the right of survivorship.

The record shows that appellant had been living with Mrs. Witten for several months at the time of her death and, apparently believing that the subject funds belonged to her, she withdrew all of them on or about August 2, 1958.The record further reflects, however, that when it became apparent that a dispute over the funds was in the offing she and her attorney, with a commendable spirit of fairness and cooperation, replaced the funds in a bank pending legal determination of the rightful ownership.

This litigation was begun by appellee in Probate Court by agreement with and the cooperation of appellant in order to have the ownership of the funds established.On appeal no questions were raised regarding jurisdiction of the Probate Court.In view of the fact that both parties agreed to submit their differences to the Probate Courtwe think that Court could take and retain jurisdiction under Ark.Stats. § 62-2409andHartman v. Hartman, Adm'r, 228 Ark. 692, 309 S.W.2d 737.

Only two issues are raised by appellant: The competency of certain evidence and the effect of the signature cards.

Dead Man's Statute.As will more fully appear later it was recognized early in the trial that the question of Mrs. Witten's intentions regarding the disposition of her bank deposits might be material, so for that and other reasons appellant was called to testify in her own behalf.At the outset appellee objected to any testimony relative to conversations or transactions which appellant had with the deceased.The pertinency of the objection, based on the Arkansas Constitution, Schedule, Section 2, was conceded by appellant.However, appellant contended and now contends that appellee waived all objections by taking the deposition of appellant.In support of this appellant relies on our opinion in Smith, Administratrix v. Clark, 219 Ark. 751, 244 S.W.2d 776.That opinion was rendered January 7, 1952 and was based on Ark.Stats. § 28-401.The following year the Legislature passed Act 335, commonly known as the 'Discovery Statute'.Section 1 of that Act now appears as Ark.Stats. § 28-348.Subdivision (f) of the said section in part states: 'A party shall not be deemed to make a person his own witness for any purpose by taking his deposition'.It is contended by appellee that, since appellant's deposition was never introduced into evidence and never used by appellee, appellee did not waive his right to object to appellant's testimony regarding conversations and transactions with the deceased.We do not, however, at this time, pass upon this particular question since it is not necessary to do so.The record shows that when the trial court sustained appellee's objection to the proffered testimony appellant did not place in the record statement of what she would say if allowed to testify.Not having done so appellant is in no position now to ask for a reversal.SeeLincoln Reserve Life Insurance Company v. Morgan, 126 Ark. 615, 191 S.W. 236;Ward v. Fort Smith Light & Traction Company, 123 Ark. 548, 185 S.W. 1085;Wallace v. Riales, 218 Ark. 70, 234 S.W.2d 199;andLynch v. Garnes, 227 Ark. 767, 301 S.W.2d 739.

Joint Accounts.Appellant ably and strenuously contends that the joint signature cards signed by her and the deceased (and delivered to the bank) operated to create joint accounts and that the proceeds of the accounts go to her as the survivor.To support that contention appellant points particularly to the decision of this Court in Pye v. Higgason, 210 Ark. 347, 195 S.W.2d 632.The opinion in that case deals with a joint bank account and construes the meaning of Pope's Digest, Section 727a, (the same as Ark.Stats. § 67-521).This section, in all portions material here, reads:

'When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the person so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; and such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge to said bank * * *.'(Emphasis supplied.)

Appellee takes the position here, and the trial court held, that Ark.Stats. § 67-521 should be considered together with the testimony, facts and circumstances disclosed by the record in a case of this kind to arrive at the intent of the depositor.Although, we must admit, the Pyecase, supra, is susceptible of the interpretation placed on it by appellant yet we think the weight of our decisions supports the view of appellee and the trial court.We shall now examine some of these cases.

In Black v. Black, 199 Ark. 609, 135 S.W.2d 837, 841, this Court had occasion to consider a 'joint account' as affected by § 727a of Pope's Digest (now Ark.Stats. § 67-521).There the Court gave the money to the widow (the survivor) but only because they were husband and wife and not because of the effect of the statute.Among other things the Court said:

'While we think and hold that the widow has title to the bank deposit as surviving tenant by the entirety, we do not ascribe her title to this section of the statute.It will be...