{ "id": 1653045, "name": "Burks v. Burks", "name_abbreviation": "Burks v. Burks", "decision_date": "1953-05-04", "docket_number": "5-87", "first_page": "97", "last_page": "102", "citations": [ { "type": "official", "cite": "222 Ark. 97" }, { "type": "parallel", "cite": "257 S.W.2d 369" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "232 S. W. 19", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "149 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718659 ], "opinion_index": 0, "case_paths": [ "/ark/149/0173-01" ] }, { "cite": "27 L. R. A. 507", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 }, { "cite": "29 S. W. 641", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "60 Ark. 169", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903682 ], "opinion_index": 0, "case_paths": [ "/ark/60/0169-01" ] }, { "cite": "219 Ark. 751", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609144 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/219/0751-01" ] }, { "cite": "238 S. W. 65", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "152 Ark. 339", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1364144 ], "opinion_index": 0, "case_paths": [ "/ark/152/0339-01" ] } ], "analysis": { "cardinality": 636, "char_count": 10740, "ocr_confidence": 0.48, "pagerank": { "raw": 1.4155445678921875e-07, "percentile": 0.6478178843631424 }, "sha256": "6c5f040bfa21fcf122eea026413dfab2f657cbcbab9999ec6ea6a0f33c98b170", "simhash": "1:7ff0c105d23fd486", "word_count": 1914 }, "last_updated": "2023-07-14T18:48:42.003901+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mr. Justice Ward dissents from the court\u2019s action in affirming the payment of an attorney\u2019s fee to Peoples National Bank." ], "parties": [ "Burks v. Burks." ], "opinions": [ { "text": "Griffin Smith, Chief Justice.\nThe issue is whether two checks drawn in an unusual manner against the maker\u2019s sufficient bank balance vested property rights in the payee, or whether express wishes of the maker, who acted in expectation of death, should be disregarded. If the latter course should be pursued the administrator would take charge of the money, paid into court when Peoples National Bank filed its interplea.\nFollowing a protracted illness having its inception prior to November, 1951, [Mrs.] Ella Mae Burks died intestate December 15, 1951. She had been attended by her warm personal friend and sister-in-law, Mrs. Mildred Burks. November 17th Ella Mae wrote and delivered to Mildred Burks a check for $1,000. In the lower left hand corner the check-maker wrote \u201cat my death\u201d. The second check (Dec. 10th) was in favor of Mildred Burks for $500 and bears the same notation.\nThe complaint, which is sworn to, asserts that for many months Ella Mae had not lived with her husband, D. A. Burks. She had formerly been married to a man named Raybon, and their son, Bedford, is confined to an institution for the mentally deficient, and has been so confined for many years.\nWhen the Peoples National Bank refused to pay the checks because of Mrs. Burks\u2019 death prior to their presentation, Mrs. Mildred Burks applied for an injunction to restrain the bank from paying $1,500 to any other person, A. D. Burks having in the meantime been appointed administrator. An alternative prayer was that the amount be paid into court. The bank was allowed a fee of $50 for its legal expense, to be taken from the item of $1,500 placed in the court\u2019s registry. The fee is questioned here.\nMrs. Mildred Burks testified that her sister-in-law and her husband had been separated on a previous occasion, but adjusted their differences for a while. A second separation, however, occurred in circumstances that were not explained. Because of friendship\u2019s ties and a relationship that had prevailed for a long period of time, the two \u201cinlaws\u201d maintained a status of closest cooperation. Ella Mae, when her health failed, and in the absence of her husband, went to live with appellant. Prom October until death occurred in December Mrs. Burks was in St. Vincent\u2019s Hospital three times. The patient had told appellant she wanted her to buy presents for the afflicted son. An explanation of the transaction is shown in the footnote.\nThe stub from which the $1,000 check was detached contains this writing by Ella Mae: \u201cFive hundred dollars given to Bedford Baybon, $4 a month, $1 every other week; $500 for your personal nse. Ella Burks\u201d.\nAppellees call attention to the fact that the checks were not presented for payment until January 23,1952\u2014 thirty-nine days after death of the drawer.\nAppellees rely upon two propositions: Ark. Stat\u2019s, \u00a7 68-1304, relating to gifts where there was no consideration, and the superior right of creditors. Such gifts are declared void \u201ceven against the grantor unless possession really and bona fide accompany such gift or conveyance \u2019 \u2019.\nThe other point is that an uncertified check, being revocable, does not pass a present interest in the subject-matter and the order of payment is, as a matter of law, revoked when the maker dies.\nMr. Justice Hart discussed gifts causa mortis and gifts inter vivos in Carter v. Greenway, 152 Ark. 339, 238 S. W. 65. There was no recorded dissent to Judge Hart\u2019s statement that the trend of authority, and the better reasoning, is that a check may he the basis of a gift causa mortis where creditors are not concerned. This expression, however, appears in the opinion: \u201cWhen the delivery of the check is coupled with an intent to transfer a present interest in the money, and no revocation is attempted, the intent of the donor should be given effect\u201d.\nAppellees call attention to the condition they say must attach when payment of a check is demanded after death of the maker, that is, delivery of the check must be coupled with an intent to transfer a present interest in the money. Here, they say, is the absent condition, for Mrs. Burks\u2019 direction was that the check should be paid at her death. The opinion appears to have been explained by the subjoined quotation from Morse on Banks and Banking \u2014 a correct rule to the effect that there may be \u201ca gift of a check causa mortis\u2019The Morse rule analyzed by Judge Hart is that there must be such a delivery by the donor as to clearly indicate his intent to transfer the property from himself, and an actual transfer of the rightful control of the property. The quotation then continues: \u201cBut this, we contend, is done when he gives a check to the donee, or to another to give to the donee, and does not revoke before the delivery is made according to instructions. In this peculiar case of a check the donor could revoke during his life; but as against the rest of the world it is a clear delivery of control of the money, and no one but the creditors of the donor has a right to object. [The creditors] have a superior equity to the donee; but, if the donor is solvent, and continues in the same mind till his demise, what right has any one else to interfere with his clear intent? . . .\n\u201cThe donor has a right to do with his property what he chooses, and his intent, clearly indicated, should be respected, and his personal representative has no right to frustrate his wish. The continuous progress of legal thought on this subject of gifts points to the conclusion set forth above, viz., that, although a gift of a check cannot give an action against the donor himself, nor prefer the donee to creditors, yet it should be held good otherwise. And if the donor is solvent and does not revoke during his life, it ought, we think, to be good against the deposit, and against his personal representatives when they have obtained possession of the deposit on which the check was drawn. .\nSmith, Administratrix, v. Clark, 219 Ark. 751, 244 S. W. 2d 776, was a case where the check was cashed during the lifetime of the maker. Conflicting decisions were mentioned, coupled with the statement that many courts hold that delivery of the donor\u2019s own check in expectation of death is not the subject of a gift, either inter vivos or causa mortis, where such check is not accepted or paid by the bank before the donor\u2019s death. (Citing cases). \u201cBut\u201d, says the opinion, \u201cthis court is committed to the so-called minority rule which holds that one\u2019s check or draft may be the subject of a valid gift by the maker, although it is not presented for payment until after the death of the donor\u201d.\nMr. Justice Wood, Hatcher v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507, made an interesting review of the law of gifts such as we are discussing here, adverting to Justinian\u2019s definition embracing requisites essential from a factual standpoint \u2014 that is, circumstances attending the gift may be such that the donor prefers to retain dominion over it rather than have the donee acquire it, \u201cbut he prefers the donee should have it rather than his heirs\u201d. Judge Wood then said: \u201cWe think the better doctrine upon the transfer of the title to gifts causa mortis is that which accords with Justinian\u2019s definition, and recognizes the subject-matter of the gift as becoming\u2019 the property of the donee in the event of the donor\u2019s death, i. e., the donor\u2019s death is a condition precedent to the vesting of the title to the thing given in the donee.\u201d\nIn the quotation from Morse, used by Judge Hart in the Carter-Greenway case, the inconsistency of a different rule was emphasized by a statement that \u201cIt does not seem sensible to say that a donatio causa mortis is a gift to take effect in case of death, and then to say. that the donor did not intend it to be good unless it took effect before his death\u201d.\nIn Gordon v. Clark, 149 Ark. 173, 232 S. W. 19, A. T. McMillan, realizing the approach of death, gave Wilmot Clark certain things of value, and his bank book. It was held that this did not have the effect of transferring to Clark the bank balance, since \u201cthe book was only evidence of the state of the account\u201d.\nA bank certificate of deposit was treated as a chattel subject to pass upon delivery as a gift inter vivos, notwithstanding the fact that the donor knew he was about to die; but there could be questions of fact, (a) whether the owner of the certificate intended, at the time of delivery, that title should pass and the recipient\u2019s purpose was to receive it; (b) the jury could have found that the owner, being on his death bed and expecting soon to die, gave the certificate to the recipient, \u201cwhich was a symbolic delivery of the money itself\u201d. In the second case the gift would be causa mortis.\nIn the case at bar all of the testimony, and the checks, disclosed an intent upon the donor\u2019s part that at the instant of death the money should pass to appellant \u2014 subject, however (in respect of $500) to the trust imposed for the benefit of the giver\u2019s incompetent son.\nThe trial court\u2019s action in allowing the interpleader a $50 fee is affirmed under authority of Ark. Stat\u2019s, \u00a7 27-816, and our thought is that the evidence does not show that a greater amount was earned. The judgment directing delivery of the balance of $1,450 to appellees is reversed, with directions that an order be entered not inconsistent with this opinion.\nMr. Justice Ward dissents from the court\u2019s action in affirming the payment of an attorney\u2019s fee to Peoples National Bank.\nMrs. Burks\u2019 bank balance was $2,200.\nIn substance, Mrs. Mildred Burks testified: \u201c[Ella Mae] had told me a day or two before that she wanted me to buy some Christmas presents for her son, Raybon. When I went out there \u2014 I think it was on Monday \u2014 she said, \u2018Mildred, will you get my glasses out of the drawer, and my checkbook and pen out of my purse? I want you to write a check for me.\u2019 When I opened the checkbook I saw a check [had already been made out] to me for $1,000. It was dated Nov. 17, and signed \u2018Ella Mae Burks\u2019. She then said, \u2018Write out a check [for $500] and make it payable to yourself,\u2019 . . . and I said, \u2018What do you want with $500 up here?\u2019 and she said, \u2018I want you to have it.\u2019 [She then added] : \u2018You see a check for $1,000 made to you: I am going to die \u2014 -I -will never get out of this bed.\u2019 But I said to her, \u2018Let\u2019s wait until tomorrow,\u2019 but she got very nervous and replied, \u2018I want to write the check,\u2019 so I wrote it and she said, \u2018Hand me something to sign it with,\u2019 and I handed her my purse, and she signed it and wrote, \u2018At my death.\u2019 She [then] said, \u2018He has spent all the money of mine he is going to spend\u2019.\u201d", "type": "majority", "author": "Griffin Smith, Chief Justice." } ], "attorneys": [ "Robert J. Brown, for appellant.", "Irvin M. Brewer,' tor appellee." ], "corrections": "", "head_matter": "Burks v. Burks.\n5-87\n257 S. W. 2d 369\nOpinion delivered May 4, 1953.\nRobert J. Brown, for appellant.\nIrvin M. Brewer,' tor appellee." }, "file_name": "0097-01", "first_page_order": 121, "last_page_order": 126 }