Summary
finding that full, complete and absolute gifts by husband to others before his death could not be recovered by widow
Summary of this case from In re FelsnerOpinion
July 17, 1951. Rehearing Denied September 17, 1951.
Appeal from the Circuit Court for DeSoto County, W.T. Harrison, J.
Rosin Paderewski and Gordon Hays, Arcadia, for appellant.
Treadwell Treadwell and Lewis E. Purvis, Arcadia, for appellees.
This is an appeal from two separate causes which were consolidated by the lower Court for the purpose of trial, involving the same persons and arising from the death of one decedent. In the first case, the widow seeks to recover moneys drawn by her deceased husband from a joint bank account and paid by him during his lifetime to his children and grandchildren by a previous marriage. And in the second case said children and grandchildren of the deceased, as owners of an undivided one-fifteenth interest in real estate, in fee simple (also being remaindermen in an undivided fourteen-fifteenths interest after the death of the deceased's widow), sought partition against said widow, upon the theory that petitioners' ancestor did not own the property in its entirety, his widow could not claim a life estate therein as being his homestead and thereby defeat partition.
Abril Whidden married Dora McBride, to which marriage union four children were born, namely Burndetta Whidden Johnson, Kathleen Whidden Dallas, Alex Whidden, and Abe Whidden. Abe Whidden and Alex Whidden both predeceased their parents, the said Dora McBride Whidden and Abril Whidden, each leaving one child, namely, Charlie Whidden and Dora Ann Whidden.
Abril Whidden purchased the interest of all the heirs of James McBride, his father-in-law, to the home place of the said James McBride, with the exception of a 1/12th interest belonging to his wife, Dora McBride Whidden, upon which property (being the property involved in this litigation), Abril Whidden and his wife and children resided, as their home place, until the death of Dora McBride Whidden on the 28th day of March, 1945.
At the time of the death of Dora McBride Whidden she left surviving, as her sole and only heirs at law, Abril Whidden, her husband; Burndetta Whidden Johnson, a daughter; Kathleen Whidden Dallas, a daughter; Charlie Whidden, a grandson, son of Abe Whidden, deceased son; and Dora Ann Whidden, granddaughter, daughter of Alex Whidden, deceased son, who inherited Dora McBride Whidden's one-twelfth interest in the property involved in this litigation, making the interest of Burndetta Whidden Johnson, Kathleen Whidden Dallas, Charlie Whidden and Dora Ann Whidden, an undivided one-fifteenth interest.
Abril Whidden continued to reside alone on this property until his marriage, on the 3rd day of October, 1945, to Mary Lee Spooner, a first cousin to his own children, and who resided with Abril Whidden on said property to the date of his death on the 23rd day of November, 1946.
That shortly after the marriage of Abril Whidden to Mary Lee Whidden, on the 3rd day of October, 1945, it was found that Abril Whidden had a cancer; an operation was performed in the summer of 1946 from which he got some relief, but he knew that he had an incurable disease from which he could not recover; that at that time, in addition to the citrus grove property upon which he and his second wife resided, he was also in the cattle business with Gordon Gammage, a brother-in-law of his first wife, owning a one-half interest in cattle and pasture lands; he sold his interest in the pasture lands and cattle to the said Gordon Gammage, converting it to cash, and deposited the cash to his individual credit in the DeSoto National Bank of Arcadia, Florida, paid considerable of his obligations, leaving unpaid a Federal Land Bank mortgage, a Land Bank Commissioner mortgage, and an income tax liability, the Federal Land Bank mortgage and the Land Bank Commissioner's mortgage aggregating the principal sum of $5,675.12, the income tax liability being undetermined.
He then prepared his last will and testament dividing all of his assets, other than the citrus fruit grove property upon which he resided and owned an undivided fourteen-fifteenths interest, equally between his two children and two grandchildren; sold the entire citrus fruit crop and received therefor $2,500 in cash, and directed the balance of $4,750, in the event of his death, to be paid to his wife, Mary Lee Whidden, whom he had appointed executrix of his last will and testament, but who later refused to qualify as such executrix and his daughter, Burndetta Johnson, was appointed administratrix cum testamento annexo.
After Abril Whidden's condition became such that he was confined to his home most of the time, Mary Lee Whidden went to the DeSoto National Bank and inquired of the bank if she and Abril Whidden had signed the proper card so that she could have the money to take care of their business after his death, and she was told that they had not; whereupon she asked for a proper card and was given a joint account card, which she took out of the bank with her and later, on August 13, 1946, returned to the bank with the signatures of Abril Whidden and herself affixed thereto.
Mary Lee Whidden contacted Abril Whidden's attorney who had prepared his last will and testament, and, in conversation with him with reference to a bill of sale to a mare and colt, she let it be known that she had arranged the joint account at the bank, whereby all the cash assets would become her property on the death of Abril Whidden. Thereupon, the attorney advised Abril Whidden of the condition of his bank account, which was a definite surprise to him, and he transferred $15,000 from the joint account to his individual account, leaving a balance in excess of $500 in the joint account, stating at the time that Mary Lee Whidden had told him all she wanted was a child's part, and that he knew he had a little money in the joint account but that he thought most of his money was in his personal account. That same afternoon, or the following day, Abril Whidden sent Gordon Gammage, his former partner in the cattle business, to get his attorney, who went out to the hospital, and was advised by the said Abril Whidden that it was his desire to make a gift of $3,000 to each of his two children and two grandchildren, leaving in his individual account a like sum of $3,000, he having theretofore transferred from the joint account to his personal account the said sum of $15,000. Checks were prepared at his direction, signed by him, and distributed by his attorney at his request.
Mary Lee Whidden learned in some manner of this distribution and raised a considerable disturbance, taking her attorney to the hospital to discuss the matter with Abril Whidden, and obtained, in some way not revealed by the record, a return of the remaining $3,000 to the joint account.
After the death of Abril Whidden, and during the month of December, 1946, the said Mary Lee Whidden collected from Sorrells Brothers the sum of $4,750, being the balance due on the fruit crop produced on the citrus fruit grove owned by Abril Whidden and his two children and two grandchildren, and she has refused to account to them for their share of the same, or to pay over to the administratrix the portion due the estate of Abril Whidden, and has continued, from that time to the date of the final decree, to sell and dispose of the citrus fruit produced on the property involved in this litigation.
Upon this factual situation the said Mary Lee Whidden filed suit to recover the $12,000 given by Abril Whidden to the appellees, upon the theory, as alleged in the plaintiff's bill of complaint, that prior to the creation of the joint account it was agreed by and between Abril Whidden and the appellant that the joint account would be created in such a manner as to make it an estate by the entireties; that the monies arising out of the sale of the pasture land and cattle, or any other monies coming to Abril Whidden, would be deposited therein and be used only for the common good, needs and mutual benefits of the appellant and Abril Whidden, including expense of last illness and payment of certain debts; the residue, upon the death of Abril Whidden, to go to the appellant; and upon the further theory that Abril Whidden, at the time of the signing of the checks by which the appellees received $3,000 each, was under the influence of narcotics to the extent that he did not know the effect of what he was doing, nor did he comprehend the natural result thereof, and that the same was not his act and deed.
The appellees, by their answer, denied the material allegations of the bill of complaint and filed their counterclaim, claiming individually as being the owners of a one-fifteenth interest and Burndetta Johnson, as administratrix with the will annexed, claiming the remaining fourteen-fifteenths interest of the proceeds of the citrus fruit crop produced on the property involved in this litigation.
Thereafter the appellees, who are also cross-appellants, filed their bill for partition of the property, being the owners of an undivided one-fifteenth interest in fee simple, upon the theory that since their father and grandfather did not own the property in its entirety, his widow could not claim a life estate therein as being his homestead, and that the same was subject to partition.
The Chancellor heard all of the testimony in the two consolidated cases and entered a decree thereupon, with findings, in substance, as follows:
1. That the gifts made by Abril Whidden to his children and grandchildren, approximately two months prior to his death, totaling $12,000, were full and complete and absolute gifts.
2. That Abril Whidden intended that the balance due on the 1946-47 fruit crop of $4,750 should belong to his widow.
3. That since the extent of the interest of Abril Whidden in the property on which the fruit was produced was less than the whole, to-wit, fourteen-fifteenths, that his widow was entitled to take and receive no more than was owned by him, and that the appellees were entitled to a one-fifteenth of said sum remaining due on said fruit crop, for that and subsequent years, less the expenses of producing the same.
4. After deducting the expenses from the proceeds of the fruit crop produced for the fruit seasons of 1946-47, 1947-48, and 1948-49, there was a net balance of $4,181.04.
5. That each of the parties should contribute their prorate share in the payment of claims against the estate.
6. The Court further found the appellees' attorneys were entitled to a fee of $2,000 and charged it solely to the undivided one-fifteenth interest of the appellees.
Upon such findings the Court decreed:
A. That the appellant's action to recover the $12,000 be dismissed at the cost of the appellant, plaintiff in the Court below.
B. That the appellees owned a one-fifteenth interest in the real property involved in this action and a remainderman's interest in the remaining fourteen-fifteenths, subject, however, to a life estate of the appellant in the remaining fourteen-fifteenths interest, and ordered partition and appointed Commissioners.
C. A judgment was entered for the appellees against the appellant in the amount of $278.75 for their one-fifteenth interest in the net proceeds of the sale of citrus fruit crops for the years 1946-47, 1947-48 and 1948-49.
After a careful review of the record, and a thorough consideration of all the evidence and briefs and arguments of respective counsel, we are of the opinion that the Chancellor was eminently correct in his findings of fact and judgment. Hence, the causes will be affirmed and remanded for further proceedings not inconsistent herewith.
Affirmed and remanded.
CHAPMAN, Acting C.J., and ADAMS and HOBSON, JJ., concur.