ARK.] .DAVISON V. MCCALL. 657 DAVISON V. MCCALL. • 4-4298 Opinion delivered April 27, 1936. EXECUTORS AND ADMINISTRATORS.—The finding of the chancellor on the issue whether certain notes and mortgages in the possession of the administratrix of Mrs. S. was part of the life estate received by Mrs. S. under the will of her former husband is sustained by the evidence; therefore the executor in succession of Mrs. S.'s husband's will was entitled to the possession thereof for the benefit of the remaindermen under his will. Appeal from Lonoke Chancery Court; Frank H. Dodge, Chancellor ; affirmed. John C. Sheffield, for appellant. Trimble, Trimble ce . McCrary and W• P. Beard, for _ BAKER, J. This suit was filed by A. 0. McCall, as the executor in succession of the estate of George Sibly, deceased, against Alice Davison, administratriX of the estate of Sarah S. Sibly, deceased. George Sibly and Sarah S. Sibly were husband and wife. George Sibly died long prior to the *death of Sarah S. Sibly. When • George Sibly died he left a will whereby he disposed of his property, giving and bequeathing to his wife all of it for her lifetime, but with the full power of disposition, sale or other alienation of the property as she might wish,
658 DAVISON v. 'MOCALL:- [192 with the Teniainder, after the termination of- her life estate, hoWever,. to-his 7heirs, There is 'no controverSy between the parties as to the will . or its construction, and for that reason time or space will hot be q a•en td set it . forth herein. Let Aloe sufficient to say that . thewill waS not essentially different from that of Mr. 'Carman, the testator, in 'the case of Little RO'ck v: LenoW,, 186 Ark: 460,' 54 S. W. (2d) 287. The Only question for determination here is a question of fact. It was asserted by the plaintiff and denied by the défendarit that the . property in controversy, notes and mortgage for the sum a $2,500, in the custody of the appellant and claimed by her as belonging to the estate of Sarah S. Sibly, belong to the estate of George Sibly, deceased. The abstract shows, among other things, that the notes in question were payable to Sarah S. Sibly, and the mortgage securing the , same is•a conveyance to her ; that she was the owner of •certain real property in her. own right,•acquired prior to the death of her husband. There were several different tracts of land that . she owned as we . ll.a . s others that she Acquired . under the will. We are inclined to think that appellant's theory in the presentation of the case is to the effect that the evidence offered herein is not . sufficiently strong,to overturn the presumption that the' liotes . and . mOrtgage .seCuring the same belonged to Mrs. SiblY, as they were made tb her as payee, and for the further reason that the original evidences. of 'this . same . debt were transferred'or assigned to Mrs. Sibley for an account in an insolvent bank, which , account shoWs.that she had on deposit in that bank, at the. tithe it failed, about $2,700: The presumption would be sufficient, were it not for the fact that it is rebutted by testiniohy which is not disputed.- This testimony is to the effect that when Mr. George Sibly died the Officers of the Bank of Central Arkansas being acquainted 'with the conditions,- transferred George Sally's •bank account to Mrs. Sibly. Later, when the Bank of Central ArkanSas failed, Mrs. Sibly's account, so acquired, amounted to something
ARKJ DAVISON; V. MCCALL 659 more than $19,000. The Bank • of Central Arkansas paid a dividend of 53 per cent., and from that account Mrs. Sibly received checks or dividends amounting- fo.nearly or about $10,000. These she deposited iria Lonoke County bank. Her account was continued-in that:bank. until it became insolvent. It :had been reduced.at that time to-,ahout $2,700. The liquidating agent in charge of the bank transferred to her the notes and mortgage of W. _J. Waggoner for $2,500 in settlement of her account in the Lonoke County Bank. There was another :item of $2,500 in government bonds, which . Mrs. Sihly , had given_ to . one of' her neighbors for seiwices and attentions hestOwed upon her by the neighboithroughout . the . years: The qnestion-of 'title arid 'ownership Of the 'government bonds,: hbNii.ever, •was settled by a decree in the chancery court, .and from 'that decree, as to that item, there has been:no appeal. . . . It is argued that since Mrs.,Sibly had other property .that she must, have added her. own individual moneys to the bank • accounts from time to time, .and that it Was-error to 'treat 'the entire affiount as belonging .• t : b the —estate of George SiblY. Recetd§ of the :bankS • are not available'. .'Sonie have been lost, sOthe Were 'sfored in anonthonse, which blirned some time . ago, and the recOrd is wholly 1 4c: king ih proof of . any . additions . to the Sibly acconnt . .thioughont the years, do We do not sOe that thdF.e cOuld be . a legal, pre-siiMption that any . 'additiOns' Were 'Made thereto. It is, true. that Mrs. Sibly. sold: several pieces:of pro • P-erty. She -may have received cash upcin these : sales, or may have , collected : payments from : time-- to -time: The 'record, however, is wholly silent as to any addition§ to the :Sibly account. Further, when. Mrs'. Sibly : sold:some of ,the, Sibly estate,. in • the execution of her deed, ' shexe-cited .the fact that ;title was acquired : by her . ,from the ' estate of:her husband.: If there were any deposits 'made ,hy her they were evidently Made -as restorations:to -the est4te left by the husband—. If this. were. not true, she should:have made,or: left 81:611., record or evidence -where-
660 [192 by her personal or individual property could have been identified.. 1 Restatement of Law of Trust's, § 180. This, in effect, was all of the proof,. The decree is in conformity with it. The evidence, we think, by preponderance supports the decree of the chancellor. It is affirmed.
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.