131 Ark. 501 | Ark. | 1917
(after stating the facts). (1) The testimony bearing on the issues of fact in this case are exceedingly voluminous, and it could serve no useful purpose to set out and discuss the same in detail. After careful consideration of it we have reached the conclusion that J. T. Harmon, a few days after the death of his son, S. W. Harmon, gave to his other sons the property which he inherited from his son, S. W., and this gift was made complete by their accepting and taking possession of the property. The preponderance of the evidence tends to show that after the property was given to them by their father, something more than a month before his death, they took charge of the same and divided it among themselves. The gift from the father to the sons was an absolute gift inter vivos; although there is testimony tending to show that at the time the gift was made the donor was afflicted with an incurable malady and knew that he could not get well. Notwithstanding this fact, where the gift is made not in contemplation of death, but to take effect and become complete immediately upon the delivery, and the taking possession of the property by the donee, the gift is one inter vivos, notwithstanding the donor may be upon his death bed. There is nothing in the testimony to warrant the conclusion that J. T. Harmon did not intend that the title to the property should pass to his four sons, the donees, during his life and immediately upon their taking, possession of the same, which occurred, as above stated, something more than a month before his death.
This court, upon a thorough consideration of the essentials to constitute a gift causa mortis in Hatcher v. Buford, 60 Ark. 169, 176, said: “We think the better doctrine upon the transfer of the title to gifts causa mortis is that which accords with Justinian’s definition, and recognizes the subject matter of the gift as becoming the property of the donee in the event of the donor’s death. This seems to be the rule adopted by the English courts of chancery, and is supported also by eminent American courts and text writers.” See also, Ammon v. Martin, 59 Ark. 191.
(2) When a gift is made by one who is afflicted with a fatal malady and who at the time of the making of the gift has no hope of recovery, and where the gift is made in contemplation of the near approach of death the presumption is that such gift was causa mortis, but this presumption may be overcome by proof to the contrary, and such was the case here.
In the same case (Hatcher v. Buford, supra), after recognizing the above doctrine, we said: “But it must not be forgotten that an absolute gift when inter vivos may be made by one upon his deathbed, and who is aware of the near approach of death from the ailment.”
In Lowe v. Hart, 93 Ark. 548, this court said: “Where a holder of a certificate of deposit intended as he handed it to another to pass title immediately, and the latter accepted it as her own, the gift was inter vivos, though the donor knew he was about to die.”
(3) This disposes of the issue raised by the intervention of Mrs. Martha Harmon, as administratrix of the estate of J. T. Harmon, deceased, and also of her individual claim for dower. The gift by1 J. T. Harmon of the property inherited by him from his son, S. W. Harmon, to his other four sons being one inter vivos, his widow has no rights therein either as administratrix or in her own right as widow.
(4) The next question is, did the Harmon brothers, the donees of the interest of S. W. Harmon, in the business of Harmon & Harmon, as an inducement to C. Gr. Harmon to buy their interest in such business, agree that they would trade with him and that their respective accounts should be credited on the notes. This was purely an issue of fact, and it would greatly lengthen this opinion to discuss the testimony in detail bearing upon it. After a careful consideration of the testimony on this issue, we have reached the conclusion that the preponderance of the evidence shows that there was no such agreement. But even if there was such an agreement, the appellant could not enforce it in this suit, for the reason that the Harmon brothers and the appellant reduced their contract concerning this purchase to writing and evidenced the amount that was to be paid in consideration for the purchase by a promissory note. To permit appellant to prove that a plain promissory note, payable under the law in money, was, under the terms of a contemporaneous parol agreement, to be paid partly in merchandise would be to violate the rule which prohibits the production of parol evidence to vary or contradict the terms of a written contract. Such is the effect of the decisions of this court and of the authorities generally. Borden v. Peay, 20 Ark. 293; Bishop v. Dillard, 49 Ark. 285; Tisdale v. Mallett, 73 Ark. 431, and other cases cited in appellees brief.
The preponderance of the evidence shows that the appellees John and Frank Harmon were innocent holders for value of the notes in suit. The testimony showed that the other brothers had transferred before maturity for value, their interest to the appellees. The court heard oral testimony on this issue and the testimony shows that the appellees held receipts from the other brothers showing that Silas and Henry Harmon had assigned their interest to the appellees.
There is no error in the decree of the court and the same is therefor affirmed.