{ "id": 1456619, "name": "Black v. Black", "name_abbreviation": "Black v. Black", "decision_date": "1940-01-08", "docket_number": "4-5691", "first_page": "609", "last_page": "618", "citations": [ { "type": "official", "cite": "199 Ark. 609" }, { "type": "parallel", "cite": "135 S.W.2d 837" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "48 A. L. R. 182", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "151 N. E. 373", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "114 Ohio St. 241", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 982596 ], "opinion_index": 0, "case_paths": [ "/ohio-st/114/0241-01" ] }, { "cite": "111 N. E. 1085", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "217 N. Y. 621", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 75788, 75638 ], "opinion_index": 0, "case_paths": [ "/ny/217/0621-01", "/ny/217/0621-02" ] }, { "cite": "151 N. Y. S. 1106", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 5585504, 5576898, 5585955, 5592579, 5577350, 5579367, 5589864, 5588299, 5600878, 5600815, 5593747, 5569269, 5589335, 5570270 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nys/151/1106-14", "/nys/151/1106-13", "/nys/151/1106-02", "/nys/151/1106-01", "/nys/151/1106-10", "/nys/151/1106-09", "/nys/151/1106-03", "/nys/151/1106-05", "/nys/151/1106-04", "/nys/151/1106-11", "/nys/151/1106-12", "/nys/151/1106-06", "/nys/151/1106-08", "/nys/151/1106-07" ] }, { "cite": "167 App. Div. 912", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 2797568, 2809636, 2796645, 2803979, 2809902, 2804048, 2804496, 2807418 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ad/167/0912-06", "/ad/167/0912-05", "/ad/167/0912-01", "/ad/167/0912-07", "/ad/167/0912-02", "/ad/167/0912-03", "/ad/167/0912-08", "/ad/167/0912-04" ] }, { "cite": "149 N. Y. S. 138", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 3224107 ], "opinion_index": 0, "case_paths": [ "/nys/149/0138-01" ] }, { "cite": "86 Misc, 187", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 1877515 ], "opinion_index": 0, "case_paths": [ "/misc/86/0187-01" ] }, { "cite": "47 App. Div. 472", "category": "reporters:state", "reporter": "A.D.", "case_ids": [ 7784143 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nys/63/0792-01" ] }, { "cite": "89 Hun 465", "category": "reporters:state", "reporter": "Hun", "case_ids": [ 3466592 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nys/35/0390-01" ] }, { "cite": "101 A. L. R. 829", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "181 Atl. 479", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "242 S. W. 57", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "154 Ark. 155", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1361236 ], "opinion_index": 0, "case_paths": [ "/ark/154/0155-01" ] }, { "cite": "227 S. W. 1", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "147 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1583371 ], "opinion_index": 0, "case_paths": [ "/ark/147/0007-01" ] } ], "analysis": { "cardinality": 789, "char_count": 17799, "ocr_confidence": 0.515, "pagerank": { "raw": 6.873213661561813e-07, "percentile": 0.964540596768383 }, "sha256": "a5240a3aa7a6d144317f896102a1743c87c24c20ef007d06774e39df4907b509", "simhash": "1:f3e2ba80670f2dd2", "word_count": 3253 }, "last_updated": "2023-07-14T16:09:45.659289+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Baker, J., dissents from the holding that the AvidoAv owns the hank, deposit as surviving tenant by the entirety." ], "parties": [ "Black v. Black." ], "opinions": [ { "text": "Smith, J.\nW. G-. Black, who departed this life April 3, 1939, was survived by Ida B., his widow, who was his second wife, by whom he had no children, and by a son and daughter, born of his first marriage. In addition to his home, he owned two other pieces of city real estate. He had, at the time of his death, a cash balance in his bank checking account, of $613.86, and, in addition, he had $3,790.00 in cash in a safe deposit box, and this litigation involves those cash items.\nBlack had made a will naming a niece as executrix, but the will had been destroyed. For a time he kept his checking account at the bank in his individual name, but he had changed the account to the names of \u201cMr. and Mrs. W. G. Black,\u201d and this account stood in their joint names at the time of Black\u2019s death. It appears that Mrs. Black had made no deposits to the credit of this bank account, nor had she drawn any checks against it, but her authority to have done so is conceded.\nOn October 26, 1934, Black leased a safe deposit box from W. B. Worthen Company, Bankers, in his individual name as lessee, and on the lease this indorsement was written: \u201cIn the event of the death of Mr. Black, any one entering the box must be accompanied by Mrs. Mary E. Beaumont (a niece).\u201d It was this niece who had been named as executrix in the destroyed will. Following this indorsement there was written: \u2018 \u2018 Change this to Mrs. Black. \u2019 \u2019 Lines were drawn through the name \u201cMrs. Black,\u201d and there followed on the lease this notation: \u201cAfter W. G. Black\u2019s death he wants his wife, Daughter & Son to be present when box is opened 3/10/37 (Signed) W. G. BLACK.\u201d\nOn March 12, 1937, a new lease was taken to the safe deposit box in the names of W. G. Black and Mrs. W. G. Black, and under this lease either lessee had the right of access to the box in the absence of the other. The lease signed by both Mr. and Mrs. Black contained a provision reading as follows: \u201cIn case the Lessees are joint tenants, including husband and wife, it is hereby declared that all property of any kind at any time heretofore or hereafter placed in said box is the joint property of both lessees and, upon the death of either, passes to the survivor subject to inheritance tax laws. Each of the lessees shall have full access to and control of the contents of said box without further authority. The lessor shall not be liable, in the event that property belonging to the joint tenants having access to said box be misappropriated by one or more of those having access. Each or all of the lessees may appoint a deputy to have access to or surrender the box.\u201d\nA certificate appended to this lease was signed 5/9/39 by Mrs. Black, which recites that the contents of the box had been safely withdrawn and that the box had been surrendered.\nShortly after the death- of Mr. Black, his widow, with the bank\u2019s approval, checked out the bank balance and withdrew the currency from the box, and this was done although Black\u2019s son and daughter had, after their father\u2019s death, given the bank written notice not to permit that action. Thereafter the son and daughter filed this suit in the chancery court, praying that Mrs. Black be restrained from wasting or using this money, and an order was made by the chancery court requiring Mrs. Black to deposit in the registry of the court the $3,790 found in the box. She was permitted to retain the $613.86 bank deposit subject to the outcome of the litigation.\nBoth cash items are claimed by the widow as surviving tenant by the entirety, but the court found that an estate by the entirety had not been established by the testimony and dismissed the widow\u2019s cross-complaint praying that relief as being without equity, from which decree is this appeal. The distribution of the estate was postponed subject to the outcome of the appeal.\nIn addition to the $3,790 in cash, Mr. Black had placed in the box certain tax deeds, tax receipts, abstracts of title, and other valuable papers. He had also placed in the box a letter, in his own writing, dated January 27, 1938, addressed \u201cTo My Wife, Daughter and Son.\u201d He wrote letters both to his son and daughter advising them of this letter in the box and explaining why he had written it.\nIn this letter, found in the box, Mr. Black stated that he had \u201cdone away with the will\u201d in which his niece had been named as executrix, \u201cor any other documents or will heretofore made by me.\u201d The remainder of the letter reads as follows:\n\u201cIt is my wish that all three of you abide by the provisions of this letter, being my wishes and instructions, as I believe that all three of you are honest and loyal and will comply herewith as it is my sincere wishes to all concerned.\n\u201cI want all of my funeral expenses paid out of the estate. I give, devise and bequeath to my Avife. Ida B. Black, for her natural life, one third of my real property, except as hereinafter specified, it being understood that she is to have and possess for her residence during her natural life my residence at 2308 West 11th Street, Little Rock, Arkansas, providing that the said Ida B. Black remains single after my death, but should she remarry, it is my wish that the aforesaid property no longer remain as her place of abode unless same is agreeable to my son and daughter. The expense of upkeep of my real property is to be equally borne by my wife, son and daughter.\n\u201cI give and bequeath to my son, Victor R. Black, one-third interest in all my real property except as hereinafter specified.\n\u201cI give to my daughter, Laura Jean Kersey, one third of all of my real property except the 12th St. property, which should I not sell during my lifetime, I give her personally, independent of other property, there will be found in my vault box a deed, deeding the last named property to her.\n\u201cI give to my grandson, Victor Rukins Black, Jr., my watch, and my masonic emblems, Avhich are to be kept by Victor R. Black, Sr., who is to give my watch to the Victor R. Black, Jr., when he is 25 years of age and my masonic emblems to be given him when he is entitled to Avear them.\n\u201cIt is my wish that out of my personal property, that my funeral expenses first be paid and the balance to be divided equally between my wife, Ida B. Black, daughter, Laura Jean. Kejjsey, and Victor R. Black, Sr., share and share,, alike.\n\u2018 \u2018 Signed W. Gh Black\n\u201cWitnesses:\n\u201cW. S. Rogers\n\u201cOpal H. Adams\n\u201cSam J. Spitzberg, J. P.\u201d\nThe letters to the son and daughter confirmed the disposition which Mr. Black asked to be made of his estate as stated in the letter copied above, it being explained in the letters to both son and daughter that it was desired to save the expense and to avoid the delay incident to an administration upon the estate. Mr. Black owed no debts at the time of his death, and his estate owed only his funeral expenses amounting to $353.\nThe undertaker who buried Mr. Black was permitted to testify that Mr. Black arranged with him for his funeral, whenever it should occur, and directed that all expenses incident to the funeral should not exceed $400. and Mr. Black stated to him that this item would be paid from a checking account which Mr. Black had at the Worthen bank. \u2022<> .>\u2022\nWhen Mrs. Black found the' letter in the box, she filed it for probate as a will, but she has not relinquished her claim to the money as surviving tenant by the entirety, and the letter does not appear to have been probated as a will.\nThis case involves no question arising out of any contract between the husband and the wife, nor does it present any question of a trust relation. All the money was at one time the sole and separate property of the husband, and the question for decision is, What interest in the money has the husband given his wife? We think this question must be determined by ascertaining Mr. Black\u2019s intention in opening and carrying his checking account in the names of himself or wife and in depositing the money in a safe deposit box which had been leased to him and his wife jointly.\nThat an .estate by the entirety may be created in personal property was expressly decided in the case of Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S. W. 1; and that holding was reaffirmed in the case of Dichson v. Jonesboro Trust Co., 154 Ark. 155, 242 S. W. 57.\nThis Dickson case is cited and relied upon by both parties to this litigation; but each attempts to distinguish this case from that one under the facts.\nThere; a bank account, kept in the name of Dickson and .wife, was held to have created an estate by the entirety in the bank deposit, but that, when the husband, with the wife\u2019s consent, had withdrawn portions of the deposit and had reduced the sums withdrawn to his separate possession by buying bonds and stamps and taking notes in his individual name for portions of the money withdrawn and loaned by him, with his wife\u2019s consent, the estate did not exist in the assets thus acquired by the husband. It was said, that the estate by entirety was destroyed in the funds so withdrawn and reduced to separate possession of one of the tenants, but that the estate continued in so much of the bank account as had not been withdrawn and reduced to the separate possession of one of the tenants. That principle applies here as to the bank account. Deposits made by either spouse to this joint account would have become part of an estate by the entirety, and would have continued so to be unless and until one spouse or the other withdrew a portion of the deposit and reduced it to a separate possession, in which event the estate would have continued only in so much of the account as had not been withdrawn.\nWe conclude, therefore, that Mrs. Black owned the bank deposit as surviving tenant by the entirety.\nBut a different principle is applicable to the contents of the safe deposit box. Appellant insists that the recital contained in the contract of lease of the box, hereinabove quoted, is conclusive of the common ownership of the contents of the box. But we do not think this was the purpose or the effect of that provision of the lease. Its obvious purpose whs to protect the lessor, who could not knoAv what money or things of value Avould be placed in the box, nor by which of its tenants; nor Avould it know by Avhich of the tenants withdrawals Avere made. The lessees were, therefore, declared and agreed to be, as betAveen themselves and the lessor, joint tenants of the box and owners of its contents, so that it became and Avas unimportant, so far as the lessor was concerned, which tenant\"-made deposits or withdrawals. Each tenant Avas given the right to deposit objects in the box and to remove them, and the lease contract has no relation to, or bearing upon, the question of owner ship as between the tenants themselves.\nIf it be said and conceded to be true that there was a presumption of ownership in favor of the surviving lessee of the box, this was a mere presumption, which would not prevail in the face of testimony to the contrary. The question of the presumption as \u25a0 to OAvnership of property in a safe deposit box is the subject of the annotator\u2019s note to the case of Re Estate of Alphonse Wohleber, Deceased, 320 Pa. St. Rep. 83, 181 Atl. 479, appearing in 101 A. L. R. 829.\nIn a headnote to this decision by the Supreme Court of Pennsylvania it is said that \u201cThe fact that a safe deposit box was leased in the names of both the husband and the wife, either or the survivor of them, is not of itself sufficient to establish a tenancy by the entireties, Avith right of survivorship, of securities found therein after the death of the husband, where there is evidence to shoAv that the securities were in fact owned by the husband.\u201d\nThe annotator\u2019s note upon this and other cases Avhich the author cites is:\n\u201cAs against the contention that the taking of a safe deposit box in the name' of one \u2018or\u2019 another made the parties joint tenants, equally entitled to the property contained therein, and that upon the death of one the title vested in the other, the court in Mercantile Safe Deposit Co. v. Huntington (1895) 89 Hun 465, 35 N. Y. S. 390, said that all that could be deduced from the way in which the box was rented was that it was the intention of the parties that either might qualify, himself to have access to the safe; th\u00e1t it did not, by any means, determine the ownership of the coi\u00edtbnts of the s\u00e1fe, of justify a conclusion that there was a joint ownership' in the property, contained therein, with a right,of survivorship. The court concludes : \u00a3'We think it\u2019would be a proposition which wbuld somewhat astonish the renters of boxes in safe deposit companies'if it should be held that, when two combine to rent a safe, the presumption would be that there was a joint ownership in all the property contained therein, eveh though the names of the renters w\u00e9re disjunctively\u2018Associated.\u2019 This decision was cited in Gilkinson v. Third Ave. Rd. Co., (1900) 47 App. Div. 472, 63 N. Y. S. 792, as holding that the joint ownership of a box indicates nothing as to the ownership of the contents, and that all that could be inferred from the fact of ownership was \u2018the intention of the parties that either might qualify herself to have access to the box.\u2019 And see Re Brown, (1914) 86 Misc, 187, 149 N. Y. S. 138 (affirmed without opinion in (1915) 167 App. Div. 912, 151 N. Y. S. 1106, which is affirmed without opinion in (1916) 217 N. Y. 621, 111 N. E. 1085), to the same effect, the court refusing to recognize any right of \u2022 survivorship of the wife in securities that belonged to- her husband, when they were put into the box held by them as joint tentants with-right of access in each in case of the death of .either.\u201d See, also, the annotated case of Cleveland Trust Co. v. Scobie, 114 Ohio St. 241, 151 N. E. 373, 48 A. L. R. 182.\nWe digress at this point to comment upon \u00a7 727a, Pope\u2019s Digest, which appellant cites and relies upon.as vesting title in her to the bank deposit. This section reads as follows: \u201cWhen a deposit shall have been made by any person in the name of such depositor and other person and in form to be' paid to either, or the survivor of them, such deposit thereupon and any additions thereto made' by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same together with all interest thereon, shall be held for the exclusive use of the person so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; and such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by anyone' of such joint tenants not to pay such deposit in accordance with the terms thereof.\u201d\nWhile we think and hold that the widow has title to the bank deposit as surviving tenant by the entirety, we do not ascribe her title to this section of the statute. It will be observed that the application of this statute is not limited to deposits of husband and wife, but applies to joint deposits of any two persons, and was, we think, passed for the protection of the bank in which the deposit was made. It permits the bank to pay out the deposit in accordance with the apparent intent of the depositors, and protects the bank in doing so; but such withdrawals of the deposit, or portions thereof, must be made \u201cprior to the receipt by said bank of notice in writing signed by any one of such joint tenants not to pay such deposit in accordance with the terms thereof.\u201d The statute effects no investiture of title as between the depositors themselves, but only relieves the bank of the responsibility and duty of making inquiry as to the respective interests of the .depositors in the deposit until one of the joint tenants shall give notice in writing that the joint ownership has be\u00e9n dissolved.\nWe -think--the \u2019\u2019letter found in the box, hereinabove copied, which, wa\u2019s \"hot addressed nor delivered to the bank, did not destroy the estate by the entirety in the deposit, as this estate, after its creation, could have been destroyed only by the act of one tenant or the other withdrawing the deposit, in whole or\"in part, by checks upon it, which the bank would have been required to honor, and after the reduction of the money withdrawn to the personal and individual use of the tenant who had withdrawn it, as ivas done in the Dickson case, 'supra.\nBut an estate by the entirety was never created in the money placed in the safe deposit box. Any presumption that this money had become a joint estate is completely refuted by the letter indicating a contrary .intention. The money belonged to Mr. Black, and he had the right to place it in the box, to Avhich he had given his wife access as a joint lessee of the box, Avithout creating an estate by the entirety in the money. It Avas not placed there for that purpose, and such estate never existed in,the money in the box.\nWe concluded, therefore, that the court below Avas correct in holding that Mrs. Black did not acquire title to the money in the box as surviving tenant by the entirety; hut we are of opinion that she did so acquire title to the bank deposit.\nAs the distribution of this estate has been suspended pending this appeal the decree of the court below will he modified to the extent indicated, and the cause will he remanded for further proceedings not inconsistent with this opinion.\nBaker, J., dissents from the holding that the AvidoAv owns the hank, deposit as surviving tenant by the entirety.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Miles & Amsler, for appellant.", "Beaumont S Beaumont and G. Hamilton Moses, for appellee." ], "corrections": "", "head_matter": "Black v. Black.\n4-5691\n135 S. W. 2d 837\nOpinion delivered January 8, 1940.\nMiles & Amsler, for appellant.\nBeaumont S Beaumont and G. Hamilton Moses, for appellee." }, "file_name": "0609-01", "first_page_order": 627, "last_page_order": 636 }