Rowland V. Phillips.
(Supreme Court of Arkansas. May 24, 1890.)
Gift—Delivery—Evidence.
It was the intention of a widow to give her dower in the personalty of her second husband to his children by a former marriage, and she so stated to various persons, though no actual delivery was made. On her death-bed she called her brother to her, and told him that the property in question belonged to these children, and that she wanted him to take charge of it for them, and see that they got it. Held not a sufficient delivery, and that there was no valid gift.
Appeal from circuit court, Grant county;
J. B. Wood, Judge.
Sanders & Watkins, for appellant.
Hughes, J. -This action was brought in the probate court by appellant in his own right, and as guardian of three minor children of Thomas W. and Louisa Rowland, deceased, to recover the dower interest of the said Louisa in the personal estate of her second husband, Isaiah Phillips, whom she married on the 4th of February, 1884, and who died on the 31st day of January, 1885, leaving the said Louisa, his widow, and four children by a former wife, as his heirs at law. On the 22d day of February, 1885, the said Louisa died, leaving six children by her first husband, Thomas W. Rowland, as her heirs at law, and leaving no issue of the marriage with Isaiah Phillips, her second husband. The said Louisa, at the time of her decease, had not had assigned, nor had she received, dower in the estate of her said husband, Isaiah Phillips. The object of this suit was to compel the administrator of the estate of Phillips to pay over to plaintiffs four-sixths of one-third of the personal property of the estate of said Phillips, or, if sold, of one-third of the proceeds of the sale thereof, in lieu of the property. The answer of the administrator admitted the facts stated, but denied that the plaintiff was entitled to recover the property or its value, and averred that the said Louisa and the said Isaiah Phillips had made a verbal marriage contract before their marriage, in which they agreed that the property of each should remain separate, and at the death of each go to his or her children, respectively, and that the said Louisa had relinquished all right and claim to the property of Isaiah Phillips after his death. The plaintiff filed a demurrer to that part of the answer setting up the verbal marriage contract, which was overruled. A trial in the probate court resulted in judgment for the defendant, and an appeal was taken to the circuit court, where the plaintiff renewed his demurrer to the answer of defendant, which was sustained. The defendant then amended his answer, by stating that plaintiff was not entitled to recover because of the relinquishment, by Louisa Phillips, after the death of Isaiah Phillips, of all right and claim to his property. Upon the answer thus amended a trial was had in the Grant circuit court upon an agreed statement of facts as set out in the judgment. The record of the agreed facts, and of the judgment, is as follows: "Comes on this case to be heard upon the complaint and answer, and the following agreed statement of facts, to-wit: Isaiah P. Phillips and Louisa Rowland, the mother of the plaintiffs, were married on the 4th day of February, 1884, and at the time of their marriage the said Isaiah had four minor children, to wit, Marcus C., Marmaduke, Mary J., and Regina; and the said Louisa had six, to-wit, James W., John W., George T., Andrew I., Martha J., and Mary Ann W.; that the said Louisa was the sister of the mother of said Isaiah's children; that prior to said marriage the said Isaiah and the said Louisa entered into a verbal agreement that the property which each owned and possessed at the time of such marriage should remain the property of each, and should descend and go to their respective children,—that is to say, the property of the said Isaiah should go to his children at his death, and the property of the said Louisa should go to her children at her death; that the property claimed by the plaintiffs in this suit was owned by the said Isaiah at the time of such marriage; that the said Isaiah died on the 31st day of January, 1885, and the said Louisa died on the 22d day of February, 1885; that after the death of said Isaiah the said Louisa stated to various persons that she and the said Isaiah, prior to their marriage, made the agreement as above set forth, and that she intended to carry it out; that all the property which the said Isaiah owned at their marriage belonged to his said children, and that she would not have one dollar of it; that, as the said children were living with her, she intended to administer on the estate of the said Isaiah, and save all the said property for them; that she stated to two of the said children, after the death of the said Isaiah, that all of said property belonged to said Isaiah; that on her death-bed, when she knew that she must soon die, she called her brother to her, and stated to him that the property sued for here belonged to the said children of the said Isaiah, and that she wanted him to take charge of it for them, and see that they got it, as she wanted the said agreement strictly carried out. And upon these facts the court finds that the said children of the said Isaiah to-wit, Marcus, Marmaduke, Mary J., and Regina, are the owners of said property, and the plaintiffs ought not to recover. It is therefore considered, adjudged, and decreed that the complaint of plaintiffs be dismissed, and that the defendant have and recover all costs in and about this suit accrued. Plaintiffs excepted, and appealed.
In Hill v. Mitchell, 5 Ark. 608, it is held that a widow is entitled to one-third of all personal estate owned by her husband at his death, including money or cash on hand and choses in action, absolutely, unless he leaves no children, in which case her Interest is one-half of each, instead of one-third; that her dower is carved out of the specific estate of which her husband was possessed; and in Menifee v. Menifee, 8 Ark. 9, it is held that the administrator holds her dower in personalty in trust for her, and that if he sells it she is entitled to one-third of the proceeds of the sale. The verbal contract of marriage relied upon in the answer was within the statute of frauds, and void. Sections 3371, 4582, Mansf. Dig.; Galbreath v. Cook, 30 Ark. 417.
Was there a gift or relinquishment by Louisa Phillips to the children of Isaiah Phillips of her right or dower interest in the personal estate of said Phillips? It does not appear that there was any written relinquishment of her interest by Louisa Phillips; and while it does appear that it was her purpose and intention to give her interest in the estate of Isaiah Phillips to his children, and that she requested, when on her death-bed, her brother to take charge of it for them, and stated to him that the property here sued for belonged to them, it does not appear that be took charge of it; nor does it appear that there was any actual or effective delivery of the property, which is always necessary to support a verbal gift of personal property or of choses in action. "Delivery of the property in question, with the intention to give, is absolutely necessary to the validity of the gift." There must be an actual and positive change of possession. Words of gift are not sufficient. Nolen v. Harden, 48 Ark. 307; Brantley v. Cameron, 78 Ala. 72; Scott v. Lauraan, 104 Pa. St. 593; and other cases cited in note 6, p. 1314, § 3. tits. "Gift," "Delivery," 8 Amer. & Eng. Enc. Law. Whether the gift be inter vivos or causa mortis, it must be shown, to sustain it, that there was an intention to presently pass the property, and that the intention was carried into effect by an actual or effective delivery. Newton v. Snyder, 44 Ark. 42. The proof in this cause fails to show a delivery of the property. The judgment is reversed, and the cause remanded.
Source: The Southwestern Reporter, Volume 13, March 17-July 28, 1890, published by West Publishing Co., 1890; Pgs. 1101-1102
