302 S.W.2d 769 | Ark. | 1957
Mrs. Mable Flaherty, age 59, a resident of Camden, suffered a stroke on October 7, 1948. Prior to such time, she had worked as a secretary at the South Arkansas Grocery, but never returned to work after suffering the stroke. On Juty 11, 1953, Mrs. Flaherty suffered a second stroke, and remained a total invalid thereafter.
1. That plaintiff’s ward, Mable Flaherty, suffered a cerebral hemorrhage on or about October 7, 1948, and as a result thereof was rendered incompetent, and from such date was not legally competent to transfer or dispose of her property.
2. That during the month of February, 1952, Mrs. Flaherty had certain U. S. government bonds re-issued to add the name of the defendant, Arlene Davis, as co-owner. That on October 27, 1953, the defendant, Mrs. Davis, cashed these bonds and received therefor the sum of $12,200.75, and that said defendant converted said sum to her own use and benefit.
3. That on January 28, 1952, the said Mable Flaherty directed the Merchant & Planters Bank to add the name of Arlene Davis as co-owner of the savings account of Mrs. Flaherty in that bank. That between July 27, 1953, and December 7,1953, the defendant withdrew from said bank account the sum of $1,236.50 and used the same for defendant’s own benefit.
4. That sometime after October 7, 1948, the defendant, Arlene Davis, came into possession of a valuable diamond ring owned by Mrs. Flaherty and that the defendant now has said ring in her possession.
5. The court further finds that none of the said transactions constituted a valid legal gift.
In accordance therewith, the court rendered judgment for appellee against appellant in the total'sum of $13,437.25 together with interest at 6% per annum from such date until paid, and directed appellant to return the diamond ring to appellee. From such judgment comes this appeal.
Appellant first contends that the court was without authority to transfer the cause from Probate Court to Chancery Court, and erred in ordering such transfer; that all subsequent pleadings filed were of no effect whatsoever because the transfer was without any force or validity. The matter of transferring causes from Probate to Chancery Court was passed upon by this Court on November 26, 1956, in the case of Merrell, et al., v. Smith, Special Administrator, et al., 226 Ark. 1016, 295 S. W. 2d 624. There the Court approved such a transfer with the following language:
“ * * * While it properly admitted the will to Probate, the Probate Court lacked the jurisdiction to decide the issue of specific performance of the alleged oral contract. The case must be, and is remanded with directions that it be transferred to equity for further proceedings.”
Appellant argues that the mental incapacity of Mrs. Flaherty to make a gift is not shown by a preponderance of the evidence. This, of course, is the main issue in the litigation. No point would be served in reviewing all of the evidence. Some eleven witnesses, mostly neighbors, testified to the effect that Mrs. Flaherty did not act in her normal manner after suffering the first stroke in October, 1948. Most of the witnesses testified to a “silly giggle” that she developed after the stroke, occurring most of the time when nothing humorous had been said. Various witnesses testified that she had been a quiet, conservative type of person prior to the stroke, and that a marked difference was observed thereafter. It was testified that she would go to the back lot and transfer different trees and pine bushes, then go over to the next lot and bring back two or three brick in her hand; perhaps next day she would move the plants to another location and move the brick. She would sit on the wet and cold ground, and would go barefooted. In conversations, she would not stay on one subject, would talk at random, and her answers to questions would not be responsive. She was careless about her personal appearance, whereas prior to the stroke she had been careful about her grooming and was attractive and neat. She wanted to give things away, and endeavored on one occasion to give an expensive Kodak to a neighbor who refused to accept it. Another neighbor, Mr. W. G. Hatch, testified that she would come over to his yard, steal his flowers, and take them over and put them in her yard; then she would weed her flowers and bring the weeds over into his yard. Mr. Hatch, whose home was only 8 or 10 feet from Mrs. Flaherty’s bedroom, further testified that she frequently had crying spells, and would awaken him at night crying; that she would find a sunny spot in the yard and lie down “like a dog,” — and all of these actions had only occurred since the stroke. Her mother testified that Mrs. Flaherty had an ‘ ‘ awful appetite ’ ’ and would become angry when she felt she had not had enough to eat, would throw dishes around, and when her mother left the house, would go out and pull up the flowers in the yard. This was entirely contrary to her actions prior to the stroke.
On the other hand, a Camden banker and a Camden attorney, who witnessed the execution of a will by Mrs. Flaherty on March 19, 1951,
Appellant testified that Mrs. Flaherty and the members of her family did not getalón*g well, that she (appellant) visited Mrs. Flaherty three times a day while she was in the hospital in 1953; that she had frequently given Mrs. Flaherty shots for her diabetes; that she often, after the stroke, would go by and carry Mrs. Flaherty riding in her car; that Mrs. Flaherty and her daughter: frequently had words, and that the .two would throw things at each other and would slap each other
“Q. Did you ever have any discussions with Mable Flaherty, other than the ones you have mentioned here about the bonds, pertaining to any other properties that Mable Flaherty owned or had possession off
A. Well, yes, she, back in I guess ’49 or ’50 she gave me her ring, and she gave it to me one day, and she said, ‘I want you to have it; I won’t wear it any more; but now you know the mounting is worn and you can’t wear it until it is fixed.’ But she said, ‘You can have it fixed and wear it.’ And of course I didn’t get it fixed right then, I just kept it and finally one day she said, ‘Why don’t you go ahead and get the ring fixed and go ahead and wear itf ’ And so I had it remounted, and then I have been wearing it ever since. And she told me she wanted me to have it, to keep it just as long as I lived. ’ ’
Appellant does not contend that any part of the monies in the bank were given to her, but states that such sums expended were used entirely for the benefit of Mrs. Flaherty. However, no statements or bills which she had paid on behalf of the latter were placed in evidence.
After a careful study of the testimony in this cause, we are unable to say that the Chancellor’s findings are against the preponderance of the evidence. It is noteworthy that appellee’s witnesses were, on the whole, much better acquainted with Mrs. Flaherty than the witnesses on behalf of appellant; likewise, they had better opportunity to observe her actions, and according to the evidence, did, much more often, see and talk with her. It must also be remembered that neither of the physicians knew Mrs. Flaherty before being called in attendance.
To summarize, the question as to whether Mrs. Flaherty was competent or incompetent from the period after October 7, 1948, resolves itself into purely a question as to what evidence made the most profound impression on the court. The Chancellor heard the case, had the opportunity to observe the demeanor of the witnesses, apparently gave close study to the testimony, and the contentions of each litigant. The rule, so many times reiterated, is to the effect that while this Court tries Chancery cases de novo, still it will not reverse a Chancellor’s decree unless his findings are against the weight of the evidence. Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686 (1946). We are unable to make such a finding in this cause.
This determination makes unnecessary any discussion of the court’s finding that none of the transactions constituted a valid legal gift.* 12**
The judgment of the chancery court is affirmed in its entirety.
Mrs. Flaherty died subsequent to the trial of.'this cause, and her estate is being administered by the guardian under the provisions of Section 231 of Act 140 of 1949.
The will left $10 to Mrs. Flaherty’s daughter, $10 to her son, and the rest of her estate to appellant.
The following hypothetical question was propounded: “Q. Doctor, based upon your experience in the medical profession, if a woman who has been described by her neighbors, friends, and family as a quiet, reserved, intelligent person, who sought to improve her mind, who had worked continuously in secretarial capacity for a number of years, had been frugal in saving her money, had done nothing so far as her family and friends could observe that would be classed as abnormal or out of the way in any way; in other words, a person who is described as above average intelligence; if that person suffered a cerebral hemorrhage causing brain damage, temporary or permanent-, or with or without healing, but anyway there was a cerebral hemorrhage, after that time, according to her- family, neighbors, and friends, she was different in almost every respect, that she was subject t.o violent emotions, which she had never been subject to before,' she had a hysterical giggle which occurred on many occasions when something was not funny, when she would go out in the yard and lie down in the sun like a dog, when she was unable to carry on any ordinary conversation that she had been able to carry on prior to that stroke, and taking all of those things into consideration,.- Doctor, would, you say that such a person ’would be competent to handle her business affairs?” ...
These alleged difficulties between mother and daughter occurred before the stroke.
This finding was based upon the fact that since Mrs. Flaherty remained a co-owner of the bonds, and upon gaining possession, could have cashed them at any time herself, no absolute gift was made.