Scott v. Union & Planters' Bank & Trust Co.

• Decision Date: 15 March 1910
• Citation: 130 S.W. 757,123 Tenn. 258
• Parties: SCOTT v. UNION & PLANTERS' BANK & TRUST CO. et al.
• Court: Tennessee Supreme Court

130 S.W. 757

123 Tenn. 258

SCOTT v. UNION & PLANTERS' BANK & TRUST CO. et al.

Supreme Court of Tennessee.

March 15, 1910

Appeal from Chancery Court, Shelby County; H. Dent Minor Chancellor.

Suit by Mrs. M. H. Scott against the Union & Planters' Bank & Trust Company and another, in which third persons were, on their motion, permitted to become defendants. From a decree dismissing the bill, complainant appeals. Reversed and rendered for complainant.

Fitzhugh & Biggs, for appellant.

Lehman Gates & Lehman and W. G. Lynn, for appellees.

BEARD C.J.

The bill in this case was filed by complainant to have established by decree of the court two gifts, alleged to have been made to her, in his last illness and in contemplation of death, by her deceased brother, J. C. Marley. The subjects of these gifts were a certificate of deposit issued by the defendant bank to the deceased for $125, 937.51, and $50,500 par value of United States 3 per cent. coupon gold bonds on deposit in a safety box, rented by the deceased and located in the vault of that bank.

As originally filed, only the depositary, the Union & Planters' Bank & Trust Company, and Joe M. Scott, the administrator of the deceased, were made parties defendant to the bill. As to the certificate of deposit, the bill averred that on the 11th of May, 1909, the day before his death, the deceased "gave the complainant the aforesaid certificate of deposit, by indorsing his name on the back thereof, and having his indorsement witnessed by Messrs. C. R. Barbee and C. M. P. Partee, two highly respected citizens of Ripley Tenn. *** This certificate, after he had indorsed it, he gave to complainant, and she then indorsed it and gave it to the defendant Joe M. Scott, who brought it to Memphis, Tenn., for collection for her and presented it to the defendant bank and trust company. *** Instead of paying the amount in money to him, at the request of the defendant Scott, it issued to complainant its cashier's check, payable to her, *** on the morning of May 12, 1909."

As to the gift of the bonds, it was alleged that: "At the time the gift of the certificate of deposit was made to complainant, the deceased gave her the contents of his box in the vault of defendant bank. For this purpose he requested his nephew, the defendant Joe M. Scott, to write an order to Mr. S. P. Read, president of the Union & Planters' Bank & Trust Company, which order was signed by Capt. Marley and witnessed by Messrs. Barbee and Partee, and is in the following words and figures:

"'Ripley, Tennessee, May 11th.

"'Mr. S. P. Read, Memphis, Tenn.--Dear Sir: This will be handed you by my nephew, Joe M, Scott, and he has the key to my box in your vault, and I want him to get some papers that I have in it.

"'[Signed] Joe C. Marley.

"'Witnesses: C. R. Barbee. G. M. Partee.'

"The deceased also gave to Mr. Scott the key to this box and directed, as trustee for complainant, to take from his box all of its contents and deliver the same to said complainant, to whom deceased gave all the contents of said box. *** On the morning of May 12th, Mr. Scott carried the above order to Mr. S. P. Read, who admitted him to the private box of Capt. Marley, and Mr. Scott took therefrom its contents, to wit, the United States coupon bonds, *** and these bonds were delivered to complainant, and are now in her possession."

In answering this bill, the defendant Scott, while conceding that the physical facts alleged therein, as to the certificate of deposit, took place, denied that there was a completed valid gift, either of it or of the fund represented by it on deposit in the defendant bank. As to the order for the bonds, the averment of the answer is as follows: "He (respondent) admits that the order set out in the bill, addressed to the president of the said Union & Planters' Bank & Trust Company, was written by him and signed by Joe C. Marley, and witnessed, *** and at the time certain instructions were given to the respondent by the said Joe C. Marley. The words, as near as this respondent can now state, are as follows: 'Take the key and go bring the bonds and everything in the box, and give to your mother."'

While admitting this much, yet, it is averred that title to these bonds was not vested in the complainant, as there was lacking the ingredient of delivery as contemplated by law.

The defendant Joe M. Scott, while administrator of the estate and making these qualified denials, was the son of complainant. And so it was that certain distributees of the deceased, believing that his defense of this case would be merely colorable, denying the legal efficacy of the matters in question to confer title upon the complainant, asked leave, and were permitted, to become defendants in the cause. Thereupon they filed an answer in which they put in issue every matter of fact upon which complainant sought to maintain a claim to the property in question.

Upon the hearing of the cause, the bill of complainant was dismissed. From this decree of dismissal the case has been brought to this court by the complainant for review.

To an intelligent determination of the issues, we deem it necessary to set out with some detail those facts of a historic nature which led up to the incidents out of which this controversy grows. Capt. Joe C. Marley died on the 12th of May, 1909, at the advanced age of 81 years. He was one of seven children, five of whom were of the half blood, and the other, the complainant, being of the whole blood. All of this family predeceased him, save the complainant and an aged half-brother, Hampton W. Marley, who, with his family, had resided for many years in the state of Texas. Two of his half-brothers and a half-sister left children, who as parties defendant are now contesting the claim set up by complainant in her bill.

That the most intimate and affectionate relations existed between Capt. Marley and his sister is abundantly shown. Married but a few months, he remained a widower from his wife's death, in 1871. He lived and died childless. For many years his home was in or near Ripley, in this state, and near that of complainant. For the last 17 years of his life, he was a member of her household, where in health he received continued marks of consideration and sisterly love from her, and in illness was nursed by her "as if one of her children." On the other hand, he never failed, by act or word, to express his devotion to her, and the record well justifies the statement of her counsel "that he attempted at all times to shield her from every worry; that he never allowed her to want for anything that was in his power to give, or to do." For 20 years prior to his death, Mrs. Scott was a widow, and her bereavement and his own solitary life, no doubt, brought them more closely together. As it was, some of her children and grandchildren grew up, as it were, "around his knee," and they, as was the complainant, were the objects of his solicitude. As an indication of his great regard for complainant and a seeming purpose to make provision for her old age, during a financial disturbance which occurred some time before the transactions here involved, he gave to her $10,000 in gold coin, and about 10 days before his death he had brought from Memphis coupon bonds of the value of $37,000, and, carefully wrapping them in paper, he called her to him, and when placing the package in her hands, said to her that the contents were a gift from him and were her property. As a further mark of his affection for her, which was evidently far beyond that entertained by him for any other of his kindred, the testimony of Joe M. Scott is that years before his uncle's death, and during his last fatal illness, Capt. Marley stated to him that he had made a will giving his mother everything, but in these last conversations he stated he did not know where it was.

While such were the relations existing between this brother and sister, and such his affections for her children and grandchildren, Capt. Marley was by no means destitute of regard for others of his kinspeople. The record contains a number of letters from Capt. Marley to his old half-brother in Texas, running down to a little while prior to the death of the former, in all of which he expresses strong fraternal affection for him. This half-brother, nearly 90 years of age, during the last few years prior to Capt. Marley's death received from him and his abundance without request, at different times, about $4,000. To nephews and nieces he was equally kind, if not as generous, and in some of them he manifested a very kindly interest.

In the fall of 1908, Capt. Marley was afflicted with grippe, which was followed, in January, 1909, by an attack of bronchial pneumonia. The effect of these illnesses was that he was left in a badly enfeebled condition. Dr. Lackey, an accomplished physician of Ripley, attended him during this latter attack. He visited Capt. Marley from January 19th to the 31st of that month, when he ceased his attentions and was only recalled on April 7th, following. From this time until his death he was with him and ministered to him daily. He testifies that, in the interim between the two dates last mentioned, Capt Marley's case was one simply of suspension, and that his last attack was "the result of the bronchial pneumonia. His lungs did not heal up, and it was but a continuation of the first attack." On Saturday night, May 8, 1909, or about 12:30 a. m. Sunday, May 9th, according to this witness, Capt. Marley had a cerebral hemorrhage, brought about by the weakened condition of his general organism, including his arteries, exaggerated by his great age. This hemorrhage produced what this physician denominates a "storm" for about 12 hours in Capt. Marley, accompanied by...