ARK . HUDSON V. • BRADLEY. -853 HUDSON . V. BRADLEY. Opinion delivered . April 2, 1928. 1. GIFTS— SUFFICIENCY OF DELIVERY.—Where a father took out time certificates payable to the order of himself or his son with money which he had Saved, this did • not eonstitute a gift to the son of the certificates or the money represented by them, where the certificates were never_ delivered to the sop: and remained in the father's possession until his death: -
854 HUDSON V. 'BRADLEY. [176 2. DOWER—ANTENUPTIAL coNTRAcr.—A finding that a wife, unable to read or write, signed an antenuptial contract waiving her right to dower in her future husband's estate or that she authorized its execution, held contrary to the weight of evidence in a suit involving the question of recovery of dower interest after the husband's death. Appeal from Monroe Chancery Court; S. H. Mann, Spacial Judge ; reversed. C. F. Greenlee, for appellant. Bogle ce Sharp, for appellee. HUMPHREYS, J. Two questions are presented by this appeal and cross-appeal for determination. The first question to be determined is whether Joe Hudson is entitled to $6,000 on deposit in the Bank of Brinkley and $1,000 on deposit in the Monroe County Bank, or whether W. T. Hudson was seized and possessed of said money at the time of his death in 1926. The certificates of deposit are as follows : "Certificate of Deposit. "Brinkley, Ark., Sept. 6, 1925. No. 1787. "Bank of Brinkley. "W. T. Hudson has deposited in this bank exactly six thousand no/100 dollars ($6,000), payable to the order of himself or Joe Hudson, his son, in current funds, on the return of this certificate, properly indorsed, twelve montbs after date, with interest at 4 per cent. per annum. No interest after maturity. "Not subject to check. "L. H. Bradley, Cashier." "Certificate of Deposit. "Not subject to check. "Monroe County Bank 81-190—No. 994. "Brinkley, Ark. 5-21-26. "This certifies that W. T. Hudson or Joe Hudson has deposited in this bank exactly one thousand dollars ($1,000), payable to his or either own order 12 months after date, with interest to maturity only. at the rate of 4 per cent. per annum on return of this certificate. "No interest after maturity. Non-negotiable. "L. W. Brown, Cashier."
ARK.] HUDSON V. BRADLEY. 855 These certificates of deposit were round in the trunk of the deceased after his burial, at the home of himself and appellant. Joe Hudson, a son of the deceased, obtained the key to the trunk from appellant, and found the certificate of deposit therein. He claimed the money as a gift inter vivos from his father. He testified relative to the gifts as follows "My father told me that this money was placed in bank so that no one could touch it, only himself and me, r and at his death I would have full possession of it ; that the rest of the outfit had done got all that was coming to them, and that this money belongs to me. My father told me that if Mrs. Hudson was left any money she would throw it away, therefore he did not want her to have any money; I refer you to marriage contract on file. My father told me about the money being a joint account at the time I visited him in the spring of 1924." Joe Hudson insists that he is the sole owner of the money, whereas the widow and other heirs, who are grandchildren of the deceased, land nieces and nephews of Joe Hudson, and the administrator of the estate of W. T. Hudson, deceased, insist that the money belongs to his estate and is subject to division among them according to the statute of descent and distribution. In the case of Lowe v. Hart, 93 Ark. 549, 125 S. W. 1030, this court defined gifts inter vivos in substance as follows : To constitute a gift a donor must actually deliver the property to a donee with intent to pass the title immediately, and the donee must accept the same. See also Stiff t v. W. B. Worthen, Co., ante, p. 585. The evidence in the instant case does not meet the requirements of this rule. The time certificates of deposit were in the joint names- of W. T. Hudson and Joe Hud-son, and were not subject to check. The money constituted the savings of W. T. Hudson, land the certificates themselves were never delivered to Joe Hudson, but were retained under lock and key by W. T. Hudson. There was no actual delivery and acceptance of either the certificate or the money they represented in such manner
856 HUDSON v. 'BRADLEY. [176 that W. T. Hudson surrendered dominion over them. W. T. Hudson could at any time during his life have presented the certificates and got the money out 'Of the bank, without the consent or permission of Joe 'Hudson. Joe Hudson could not have presented the certifiCates and got the money, because he never had poSsession of them. There was no intention in the acts of the Parties to pass the title to the certifidates or money. The evidence is insufficient to support a gift. _ In addition to claiming the money as a gift, Joe 'Hudson interposed the further defense to appellant's claim for dower that she entered into . an antenuptial contract with his father, waiving her right Of, dower in and to his estate. The contract is as follow g : "This agreement made and entered into this the 2d day of December, by and between W. T. Hudson and S. B. Hudson, is as follows : That whereas we, the said W. T. Hudson and S. B. Hudson desire and have decided to be remarried again,, and become as husband and. -wife, and now before said marriage it is hereby agreed and fully. understood, and in consideration of this agreement and of said marriage, and the further . consideration that_we have once divided our property between each other mutually and agreeably to each of us, it is now hereby agreed and understood by and between each of us that I, the said S. B. Hudson, do hereby agree and waive all my right or possibility and future claims or any and all dower or financial claims that would come to me or be allowed to maunder the matrimonial laws . of the State of Ark -ansas. • o make it more explicit, B. Hudson, waive all right to a dower or other claims in or to said W. T. Hudson's estate either during his natural life or after his death, and our property to be kept separate and distinct apart and in each other's name and control as separate individuals do, with no future claims of dower or curtesy whatever. And it is hereby.understood and agreed that, in case of any disagreement between us that would result in separation as husband and wife, each one
ARK.I HUDSON V. BRADLEY. 857 of us to take the individual property owned by us individually, and that to be the final settlement between us as herein . agreed and made binding between us. "Witness Our hthids and seals ' this the second day. of December, '1916. "W. T. Hudson her "Mrs. S:B: (x) Hudson mark "Witness, R. M. Henderson. "Wanes§ to mark, R. M. Henderson." "State of Arkansas, county of Monroe. "On this . the 2d day of December, 1916, appeared before me, R. M. -Henderson, a justice of the peace, duly. commissioned and : acting, Mrs. S. B. Hudson, to me well known, and acknowledged that she had signed the foregoing transfer,_ for the consideration and purposes. therein mentiOned, of her own free will and accord. "Witness iny hand as . such justice of the pea6e, on this the 2d day 'of December, 1916. R. M. Henderson, J.-P."? Certificate of Record. "State of Arkansas, County of Monroe. "I, R. A. Holloway, circuit clerk ' and ex-officio recorder of the cpunty aforesaid, do hereby certify that the annexed andforegoing instrument of writing was filed in my office on istday of December, 1917, at 2:30 o'clock r. wt., _and that the same is now duly recorded with the' acknoNidedgments'and Certificates thereon in record bOok 21, page-146.- "In , witness,whereof 11 have hereunto set my hand-and affixed the Seal of said court this 13th day of Decem-ber, 1917. • R. A. Holloway, circuit 'clerk and ex-officio recOrden; By ^' " (Seal). Appellant denied signing the contract or authorizing any one to sign it for her. She said her husband prop O -s-0d entering in-CO such *a contract before* their second marriage, but that she declined to do so, and that she
858 [176 never heard of nor saw the purported contract until it was shown to her by Mr. _Milwee after her husband's death. Appellant could neither read nor write. Appellant's second initial is V, and it will be observed that it appeared as B on the contract. Counsel for appel-lee argue that the contract had been on record for nearly ten years. We do not see how that fact can help them, unless they had shown that appellant knew of the existence of the contract and that same had been recorded. The trial court's finding to the effect that appellant signed the antenuptial contract was contrary to the weight of the evidence. The trial court's 'finding against a gift of money by W. T. Hudson to Joe Hudson is in accordance with the weight of the evidence. The judgment on the cross-appeal is affirmed, but the judgment on the direct appeal is reversed and the cause is remanded, with directions to allow the widow one-third of the money and to divide the balance between the heirs according to the statute of descent and distribution.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.