(232 S.W.) was therefore not good as a noncupative will as food inspector and his retention in the a packet containing certain property and diemployment did not constitute a waiver of rected that he divide the property equally bethe breach of the contract. The facts of that tween plaintiff, mother of M.'s deceased wife case are entirely different and have no ap- and M.'s own mother, and the court ordered case are entirely different and have no ap- the statement reduced to writing and admitted plication to the present one. In that case as a nuncupative will, and on appeal to the Hayes was employed as a traveling sales-circuit court probate was denied on the ground man and was to receive a certain salary that amount involved was more than $500 and unconditionally. Under the contract he was to receive an additional salary on certain conditions, and the issue in the case was whether or not he had broken the contract by failing to perform those conditions. The court held that under those circumstances the employer did not waive the breach by retaining the employee in the service for the reason that part of the contract, and the salary pertaining thereto was unconditional, and that the employer had the right, without waiving the breach, to permit the employee to remain in the service and receive the unconditional salary. In the present case the condition related to the whole of the contract, which was indivisible, and the breach of the contract was entirely waived by the retention of appellant in the employment and failure to make objection to the breach. The decree is therefore reversed, with directions to render a decree in favor of appellant for the sum of $450, the balance due him on his salary, with interest at legal date from June 15, 1919, the date on which the final payment of his salary was due. (149 Ark. 173) GORDON v. CLARK et al. (No. 44.) (Supreme Court of Arkansas. June 13, 1921. Rehearing Denied July 4, 1921.) 1. Courts 2002-Probate court has no jurisdiction of contest between administrator and claimant of property of deceased. Where the question of title to property belonging to deceased was involved in a contest between the administrator and claimant, the probate court was without jurisdiction, and where brought in the chancery court it erred in sustaining a plea to the jurisdiction because the matter was in probate. It is a general rule that, where person under a sense of impending death gives chattels to another intending to pass title in the event of his death, and the latter accepts, a gift causa mortis is constituted. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Gift Causa Mortis.] 5. Gifts 47 (2)-Presumption of acceptance where gift to one person for another is beneficial. Where a gift is made to one person for another, there will be presumption of acceptance where the gift is beneficial. 6. Gifts 64(1)—Gift of Liberty Bonds held valid as causa mortis gift. Where one, realizing that death is impending, gave to one person for others Liberty Bonds and war saving stamps, held, that there was delivery of these items such as to constitute a gift causa mortis. 7. Gifts 66(2)-Giving of bank book, which was merely evidence of account and did not authorize withdrawal, was insufficient for gift causa mortis. Delivery of depositor's bank book, which was only evidence of the account and could not be used to withdraw the money, was insufficient for gift of deposit causa mortis. 8. Gifts 62(5)-Life insurance policies may be transferred as a gift causa mortis without written assignment. Life insurance policies payable to legal representatives of the insured may be transferred by the mere delivery without written assignment to one person for another as a gift causa mortis. 2. Judgment 713(1)-To render judgment res adjudicata it must appear that the particular matter was raised and determined in 9. Gifts 56-Donatio mortis causa not sus the prior suit or might have been. To render judgment in one suit conclusive of a matter sought to be litigated in another, it must appear from the record or from extrinsic evidence that the matter sought to be concluded was raised and determined in the prior suit or might have been litigated therein. 3. Wills 432-Decision of probate court that nuncupative will was invalid held not res adjudicata in action for property. Where defendant represented to probate court that M. on his deathbed delivered to him tained. An attempted gift causa mortis of real estate by giving to one person for another deeds thereto was not valid, since a gift of real estate as a donatio mortis causa cannot be sustained. 10. Gifts 71-Partial invalidity did not render void entire gift causa mortis. Where a decedent made a gift causa mortis to one for others of several different things, and the gift failed as to a part thereof, held, that the gift was not invalid as to the other items. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Appeal from Sebastian Chancery Court; J. V. Bourland, Chancellor. Suit by S. H. Gordon against Wilmot Clark, Jr., and others. Judgment dismissing complaint for want of equity, and plaintiff applaint for want of equity, and plaintiff ap peals. Reversed and remanded. Appellant brought this suit in equity against appellees, and the prayer of her complaint is that the title to a one-half interest in the property described in the complaint be divested out of appellees and vested in her. The complaint alleges that on the 11th day of December, 1918, A. T. McMillan departed this life intestate in the Greenwood district of Sebastian county, Ark., and that he was a citizen of that county and state at the time of his death; that at the time of his death he owned personal property consisting of about $350 in Liberty Bonds, about $400 in war savings stamps, about $90.50 deposited in a bank, and the proceeds of two policies of insurance, one in the sum of $735 and the other in the sum of $1,000; that the said A. T. McMillan became sick, and, realizing that he had but a few hours more to live, called to his bedside Wilmot Clark, Jr., and delivered to him an envelope containing the Liberty Bonds, war savings stamps, insurance policies, bank book showing the amount deposited to his credit in the bank, and some deeds to real estate; that he directed said Wilmot Clark, Jr., to divide said property equally between appellant, who was the mother of his deceased wife, and his own mother. Appellant further states that William M. McMillan and Susan McMillan, who were defendants in the court below, were respectively the father and the mother of A. T. McMillan, "deceased, and that the other appellees, who were also defendants in the court below, were his brothers and sisters. Appellee Wilmot Clark, Jr., filed an answer in which he admitted that A. T. McMillan, realizing that he was about to die, called him to his bedside and gave him packet containing Liberty Bonds, war savings stamps, insurance policies, bank book and deeds, and directed him to divide his property equally between his mother and the mother of his deceased wife; that he hold said property subject to the orders of the court. Appellees allege that the chancery court has no jurisdiction over the cause, and said that the property claimed by appellant is now in the control of the probate court, which has exclusive jurisdiction of the distribution thereof. They allege that Wilmot Clark, Jr., is the administrator of the estate of A. T. McMillan, deceased, and that he holds the property described in the complaint to be distributed to the heirs at law of A. T. McMillan, deceased, in accordance with the laws of the state, and that said estate is now in process of administration in the probate court of Sebastian county. Appellees also interposed a plea of res adjudicata based on the following facts: After the death of A. T. McMillan, deceased, Wilmot Clark, Jr., appeared in the probate court and stated to said court that A. T. McMillan, realizing that he was about to die in a few hours, gave to him in a package the property described above consisting of Liberty Bonds, war savings stamps, bank book, insurance policies, and deeds. The proceedings had before the court were those prescribed for the proving of nuncupative wills. The court reduced the transaction had between A. T. McMillan just prior to his death and Wilmot Clark, Jr., to writing and admitted the same to probate as a nuncupative will. The heirs at, law of A. T. McMillan duly prosecuted an appeal to the circuit court. The circuit court found that on the 14th day of January, 1918, A. T. McMillan and Etta McMillan, his wife, each made a will in writing devising to the other all of his or her property; that said Etta McMillan died a few days before her husband, and that all of her property vested in her husband under her will; that her husband, A. T. McMillan, died intestate on December 14, 1918, and that, under section 10497 of Crawford & Moses' Digest, no nuncupative will is good where the estate bequeathed exceeds the value of $500; that the oral directions given by A. T. McMillan to Wilmot Clark, Jr., for a distribution of his estate bequeathed property exceeding the value of $500, and for that reason could not be reduced to writing and probated as a nuncupative will. It was therefore adjudged by the court that the judgment of the probate court reducing said directions to writing and admitting the same to probate as a nuncupative will should be canceled and set aside. It was further ordered and adjudged that a copy of the judgment of the circuit court be transmitted to the probate court and entered on the records of that court. No appeal was taken from this judgment. Upon this state of the record the case came on for hearing in the chancery court on October 18, 1920, and it was decreed that the complaint of appellant should be dismissed for want of equity. The case is here on appeal. Webb Covington and G. L. Grant, both of Ft. Smith, for appellant. W. A. Falconer and Jos. R. Brown, both of Ft. Smith, and Geo. W. Johnson, of Greenwood, for appellees. HART, J. (after stating the facts as above). [1] The chancery court erred in sustaining the plea to the jurisdiction of the court. It is true that the estate of A. T. McMillan, deceased, was in course of administration in the probate court. The question of the title to the property did not arise in (232 S.W.) that court as a necessary incident to the does not prevent appellant from claiming the administration of other matters over which the probate court had jurisdiction. property under a gift causa mortis. The reason is that the question of whether or not The present case involves a contest between the decedent had given the property to her the administrator and a claimant to certain in view of his impending death did not beproperty of the estate, and it is well settled come an issue in the proceeding to probate a that the probate court has no jurisdiction nuncupative will and could not have been of a contest between an executor or adminis- made an issue in such proceeding. Such trator and others over the title of property | an issue could only be raised in an independbelonging to the deceased. King v. Stevens, ent suit between the claimant and the admin225 S. W. 656, and cases cited, and Union & istrator of the decedent like the present one. Merc. Trust Co. v. Hudson, 227 S. W. 1. Therefore the issues raised in the present case were not adjudicated in the probate proceedings. [2, 3] Again it is contended that the decree of the chancery court should be upheld on the appellees' plea of res adjudicata. To sustain that plea it was shown that Wilmot Clark, Jr., had represented to the probate court that A. T. McMillan, deceased, on his deathbed had delivered to him a packet containing certain property and directed that he should divide it equally between appellant, the mother of his deceased wife, and his own mother. The probate court ordered the statement to be reduced to writing and to be admitted to probate as a nuncupative will, and on appeal to the circuit court probate was denied on the ground that the property involved amounted to more than $500, and that, under section 10497 of Crawford & Moses' Digest, no nuncupative will is good where the estate bequeathed exceeds the value of $500. To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear from the record or from extrinsic evidence that the particular matter sought to be concluded was raised and determined in the prior suit, or that it might have been litigated in that case. Livingston v. Pugsley, 124 Ark. 432, 187 S. W. 925, and Morton v. Linton & Plant, 138 Ark. 297, 211 S. W. 175. The rule that a valid decree in a suit cuts off all defenses which might have been pleaded therein refers only to such matters as properly belong to the subject of the controversy, and are within the scope of the issues raised by the pleadings. Fourche River Lumber Co. v. Walker, 96 Ark. 540, 132 S. W. 451. The title to the property in controversy in this suit was not involved in the probate proceeding. The only question raised or that could have been raised in that proceeding was whether or not the statement of Wilmot Clark, Jr., to the probate court formed a sufficient basis to warrant it in being reduced to writing and filed for probate as a nuncupative will. The circuit court held that no nuncupative will was established under the facts presented, and no appeal was taken from that judgment. Hence that judgment is conclusive that no valid will was made by A. T. McMillan. But appellant might be entitled to the property and still not be entitled to it as a legatee under a nuncupative will. The fact that a nuncupative will was not probated [4] The general rule is that, where a person realizes that he is about to die, and under a sense of impending death gives chattels to another intending to pass title in the event of his death, and the latter accepts the gift, such facts constitute a gift causa mortis. Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030. [5] It is generally held that, where such a gift is made to one person for another, there will be presumption of acceptance where the gift is beneficial. Ammon v. Martin, 59 Ark. 191, 26 S. W. 826; Pyle v. East, 173 Iowa, 165, 155 N. W. 283, 3 A. L. R. 885, and case note at page 917; Varley v. Sims, 100 Minn. 331, 111 N. W. 269, 8 L. R. A. (N. S.) 829, 117 Am. St. Rep. 694, 10 Ann. Cas. 473. [6] In the present case A. T. McMillan, realizing that he was about to die in a short time, gave to Wilmot Clark, Jr., a packet containing Liberty Bonds, war savings stamps, two insurance policies, his check book, and some deeds to real estate, and directed him to divide the property equally between his own mother and his deceased wife's mother. There was about $350 in Liberty Bonds, and about $400 in war savings stamps. Under the rule just announced, there was a delivery of these items and they constituted a gift causa mortis. [7] There was about $90.50 deposited in the bank to the credit of A. T. McMillan. The question is presented as to whether or not the delivery of the depositor's bank book constituted this a gift causa mortis. The deposit of A. T. McMillan could not be withdrawn from the bank by the production of his bank book, but could be withdrawn only on his check. The delivery by McMillan to Clark of his bank book did not give the latter dominion and control over the money which McMillan had on deposit in the bank. The deposit was just as subject to check without the production of the book as with it. The book was only evidence of the state of the account between the bank and McMillan. Therefore we hold hold that that the the facts stated are not sufficient to constitute a valid gift causa mortis of the money on deposit in the bank to the credit of deceased. Jones v. Weakley, 99 Ala. 441, 12 South. 420, 19 L. R. A. 700, 42 Am. St. Rep. 84, and cases cited; Ashbrook v. Ryon, 2 Bush (Ky.) 228, 92 Am. Dec. 481; and Szabo v. Speckman, 73 Fla. [ estate as a donatio mortis causa cannot be 374, 74 South. 411, L. R. A. 1917D, 357. Our own case of Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, is not opposed to the view herein expressed, but rather confirms it. In that case the bank through its cashier had issued a written certificate of deposit, and the certificate recited that the amount deposited was payable to the order of the depositor on the return of the certificate properly indorsed. The depositor on his deathbed had given the certificate to Mrs. Hart and spoke of it as a check for the money. Under the circumstances the court held that there was a valid gift causa mortis. As we have already seen, the bank book in the present case was merely evidence of the amounts which from time to time had been placed in the bank by the depositor, and the delivery of the book could not pass the title thereto. [8] The delivery of the life insurance policies was complete, and it is well settled that life insurance policies payable to the legal representatives of the insured may be transferred by a mere delivery without a written assignment. Gledhill v. McCoombs, 110 Me. 341, 86 Atl. 247, 45 L. R. A. (N. S.) 26, Ann. Cas. 1914D, 294. In a case note to the latter citation on page 297 it is said that the general, if not universal, rule is that a policy of insurance on the life of the donor may be made the subject of a gift in the same manner as any other chose in action and numerous decisions are cited in support of the rule. Again on page 298 of Ann. Cas. 1914D it is said that the gift. of a policy of life insurance is valid in the absence of a written assignment provided there is a delivery of the policy by the donor to the donee, and numerous cases are cited in support thereof. In such cases the courts make no distinction between bonds or promissory notes and policies of life insurance. Each is held to be a contractual obligation to pay money at a certain time so that it is said that, if the mere delivery of a promissory note without indorsement is sufficient to entitle the donee as against the donor and his representative to demand and receive the money from the obligor, no reason can be perceived why under like circumstances the donee of a life insurance policy should not be vested with like rights. sustained. 20 Cyc. 1242, and cases cited; Meach v. Meach, 24 Vt. 591; and Johnson v. Colley, 101 Va. 414, 44 S. E. 721, 99 Am. St. Rep. 884, and case note at page 908. It results from the views we have expressed that there was a valid gift causa mortis of the Liberty Bonds, the war savings stamps, and the insurance policies, but that no title passed to the money deposited in the bank or to the real estate. [10] Finally it is contended that there was no intention on the part of the donor to make the gift otherwise than as a whole, and that the failure of a part must defeat the whole. To support this contention counsel cite McGrath v. Reynolds, 116 Mass. 566, and Knight v. Tripp, 121 Cal. 674, 54 Pac. 267. We do not think that the facts in those cases control here. In each of them direction was given to a third person as here to pay certain bequests to others, but here the analogy ends. In each of those cases the donor directed the donee to give the property to various persons, and different amounts were directed to be given to them. It was the evident purpose of the donor to distribute his property to all these persons, and there was nothing to indicate that a portion of the property would have been given to some of them if the whole gift was not held valid. In the case at bar the donor directed the donee to divide his property equally between two persons, and a failure of a part of the intended gift could in no wise affect the remainder. It is not to be supposed that the donor would not have intended a part of his property to be divided equally between the parties because his gift to the whole of it failed. On the contrary, it was the evident intention of the donor to divide all of his property between his own mother and his deceased wife's mother. The reason of his course is perfectly apparent. He and his wife had made wills in favor of each other. His wife had died but a few days before he realized that he was about to die. Therefore he wished to divide his property equally between his own mother and his deceased wife's mother. A failure to accomplish his purpose as a whole should in no sense be held to defeat it entirely. It follows that the decree must be reversed and the cause will be remanded, for further proceedings in accordance with the principles of equity and not inconsistent with this [9] The attempted gift of the real estate was not a valid gift causa mortis. It is almost universally held that a gift of real opinion. (149 Ark. 306) (232 S.W.) mony that view of it most favorable to him, GRADY v. DIERKS LUMBER & COAL CO. and if the testimony and all reasonable infer (No. 59.) (Supreme Court of Arkansas. June 20, 1921.) Frauds, statute of 159-Whether supplies furnished under collateral agreement held for jury. In an action on an alleged oral agreement to pay plaintiff for supplies furnished persons having a logging contract with defendant, evidence as to how the accounts were carried on plaintiff's books and as to whether credit was extended to defendant or to the contractors held to make an issue for the jury. ences deducible therefrom, thus viewed, have made a case for the jury, the judgment must be reversed. There is some conflict in the testimony as to how the accounts were carried on the books of Holcomb & Grady, and it is admitted that the accounts were paid only on the approval of the person to whom the goods furnished had been charged. Appellee insists that these circumstances are important for their bearing on the proposition that both Holcomb and Grady expected nothing more from appellee than to see that the accounts Appeal from Circuit Court, Sevier County; were paid in so far as what the men earned James S. Steel, Judge. Action by R. W. Grady against the Dierks Lumber & Coal Company. Judgment for defendant on a directed verdict, and plaintiff appeals. Reversed and remanded. could pay them, and that any balance remain- Grady, who kept the books, testified that Johnson & Shaver, of Ashdown, for appel- the accounts were kept in the name of appellee by the particular person who bought the lant. Lake & Lake and Abe Collins, all of De goods. But as appellee contends, these book Queen, for appellee. SMITH, J. Appellant is the successor in business of the firm of Holcomb & Grady, a copartnership, and brought this suit to recover a sum alleged to be due by appellee. Appellee is a corporation, and had given its employees, Sanders and Cheshire, a contract to get out logs by the thousand, and later made a similar contract with one McWhorter. It became necessary for these men who were to do the logging to have advances of goods, wares, and merchandise, and such advances were made by Holcomb & Grady. At the conclusion of all the testimony the court gave the jury the following peremptory instruction: charges of appellant stand on no higher footing than the form of the promise or the situation of the parties. It must be confessed that there are isolated statements of both Holcomb and Grady, which, standing alone, appear to indicate that the credit was extended to the men themselves, and it was induced solely by the promise of McCurry, appellee's superintendent and agent, to stand for the accounts. Grady, in his redirect examination, was asked these questions: pay these accounts." "Q. In response to a question by Mr. Lake [counsel for appellee] yesterday you stated that the Dierks people [appellee] were standing for this account. What did you mean by that phrase? A. Mr. McCurry told us to charge it to the Dierks Land & Coal Company and that "Gentlemen of the jury, under the law, as they would see that these accounts were paid. the court sees it, there is no question to go Q. Did they say they would see that they were before the jury in this case. We have a stat-paid, or would pay them? A. That they would ute in our state, enacted by our Legislature almost at the beginning of statehood, requiring that what we call a collateral undertaking shall be evidenced by writing, or where any one contracts to stand for the debt of another, it must be in writing; and under that law there is nothing to go to the jury, because there is no question here; no writing was signed up by any one at all, and in cases of that kind the statute says a contract, made to stand for a debt, default, or miscarriage of another, must be signed in writing, and unless this is done it is void." It is apparent that the instruction is a correct declaration of the law; but it is very earnestly insisted that the court erred in holding that there was no question of fact for the jury; and we have concluded that appellant is right in this insistence. Inasmuch as the verdict was directed against appellant, we must give to the testi The negotiation for the opening of these accounts was conducted between McCurry and Holcomb, who stated that the contract under which the goods were furnished was as follows: "He [McCurry] called me up, and said it was Mr. McCurry with the Dierks people, and that he would have a couple of men down to go logging down at the Reunion grounds, and he would like for us to make arrangements to furnish them, and I told him we would be glad to have the business, and he told me who the two men were, and in a few days the men came down and went to logging and went to trading with us. Q. What did he say about the way for you to carry these accounts? A. He said for us to charge them to Mr. Sanders and Mr. Cheshire, and send the bills to them at Dierks, and the Dierks people would send us a check for the money." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |