Porterfield v. Porterfield's Estate, 5--6176

• Decision Date: 26 February 1973
• Docket Number: No. 5--6176,5--6176
• Citation: 491 S.W.2d 48,253 Ark. 1073
• Parties: Jesse PORTERFIELD et al., Appellants, v. ESTATE of P. B. PORTERFIELD, Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 48

491 S.W.2d 48

253 Ark. 1073

Jesse PORTERFIELD et al., Appellants, v.ESTATE of P. B. PORTERFIELD, Deceased, Appellee.

No. 5--6176.

Supreme Court of Arkansas.

Feb. 26, 1973.

Rehearing Denied March 26, 1973.

Joe W. McCoy, Malvern, for appellants.

J. E. Still, Arkadelphia, for appellee.

GEORGE ROSE SMITH, Justice.

P. B. Porterfield, aged 90, died in July, 1971, survived by his widow, five sons, and a daughter.In this litigation two of the sons, the appellants, claim ownership of two certificates of deposit that were in their father's possession at the time of his death.The probate court held the certificates to be part of the estate, there having been no completed gift ot the appellants.We agree with the probate court.

On April 24, 1968, the elder Porterfield, then 87, went to his bank in Gurdon and purchased for cash the first of the two certificates, the pertinent language of which is As follows:

Savings Certificate of Deposit

No. 0107

Clark County Bank

$12,500.00.

Gurdon, Ark.

April 24th, 1968.

P. B. Porterfield has deposited in this bank Twelve Thousand Five Hundred & no/100 Dollars, $12,500.00, payable to the order of Jesse Porterfield or Dildy Porterfield, Payee (s), in current funds on the return of this certificate properly endorsed 12 months after date, with interest at the rate of 5 1/2% per annum. . . .

Automatically Renewable.Checks for interest will be mailed each 12 months.

No interest after three years from date.Nonnegotiable.

/s/ Clayton Franklin

Authorized signature.

Not Subject to Check.

Three years later Porterfield purchased the second certificate, on a similar printed form, in the amount of $1,445.01, payable to Jesse Porterfield and Dildy Porterfield.Mr. Porterfield kept the certificates in a box at his home until his death.There is no contention that either certificate was delivered to the sons during their father's lifetime.

The point is not altogether clear, but apparently the two sons knew nothing about the certificates until after their father's death.In 1968, soon after the first certificate was acquired, Porterfield took the two sons to the bank, where they signed a signature card; but according to Clayton Franklin, the president of the bank, that transaction related only to Mr. Porterfield's checking account, which contained about $800 at his death.Mr. Franklin also testified that during Mr. Porterfield's lifetime the bank would not have permitted any of the three men to case the certificates without all three signatures, but 'if Mr. Porterfield died, in our way of thinking the money fell to the two remaining payees.'

The latter assumption by Franklin was incorrect, for the language necessary to create a survivorship interest in the sons did not appear in the certificates.Ark.Stat.Ann. § 67--552(Repl.1966);Washam v. First Nat. Bank, 248 Ark. 984, 455 S.W.2d 96(1970);Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570(1969).In fact, counsel for the appellants state candidly that there is no issue of survivorship in this case.

The question, then, is whether the proof shows completed inter vivos gifts of the two certificates.All the elements of such a gift must be shown by clear and convincing evidence.Mohr v. Hampton, 238 Ark. 393, 382 S.W.2d 6(1964);Bennett v. Miles, 212 Ark. 273, 205 S.W.2d 451(1...