(after stating the facts). The chancery court erred in sustaining the plea to the jurisdiction of the court. It is true that the estate of A. T. McMillan, deceased, was in course of administration in the probate court. The question of the title to the property did not arise in that court as a necessary incident to the administration of other matters over which the probate court had jurisdiction.
The present case involves a contest between the administrator and a claimant to certain property of the estate, and it is well settled that the probate court has no jurisdiction of a contest between an executor or administrator and others over the title of property belonging to the deceased. King v. Stevens, 146 Ark. 443, and cases cited, and Union & Merc. Trust Co. v. Hudson, 147 Ark. 7.
Again it is contended that the decree of the chancery conrt should he upheld on the appellees’ plea of res judicata. To sustain that plea it was shown that Wilmot Clark, Jr., had represented to the probate court that A. T. McMillan, deceased, on his death bed had delivered to him a packet containing certain property and directed that he should divide it equally between appellant, the mother of his deceased wife, and his own mother. The probate court ordered the statement to be reduced to writing and to be admitted to probate as a nuncupative will, and, on appeal to the circuit court, probate was denied on the ground that the property involved amounted to more than $500, and that, under section 10497 of Crawford & Moses’ Digest, no nuncupative will is good where the estate bequeathed exceeds the value of $500. To render a judgment in one suit conclusive of a matter sought to be litigated in another, it must appear from the record, or from extrinsic evidence that the particular matter sought to be concluded was raised and determined in the prior suit; or that it might have been litigated in that case. Livingston v. Pugsley, 124 Ark. 432, and Morton v. Linton & Plant, 138 Ark. 297.
The rule that a valid decree in a suit cuts off all defenses which might have been pleaded therein refers only to such matters as properly belong to the subject of the controversy, and are within the scope ,of the issues raised by the pleadings Pourche River Lumber Co. v. Walker, 96 Ark. 540. The title to the property in controversy in this suit was not involved in" the probate proceeding. The only question raised or that could have been raised in that proceeding was whether or not the statement of Wilmot Clark, Jr., to the probate court formed a sufficient basis to warrant it in being reduced to writing and filed for probate as a nuncupative will. •
The circuit court held that no nuncupatve will was established under the facts presented and no appeal was taken from that judgment. Hence that judgment is conclusive that no valid will was made by A. T. McMiilan. But appellant might be entitled to the property and still not be entitled to it as a legatee under a nuncupative will, The fact that a nuncupative will was not probated does not prevent appellant from claiming the property under a gift causa mortis. The reason is that the question of whether or not the decedent had given the property to her, in view of his impending death, did not become an issue in the proceeding to probate a nuncupative will, and could not have been made an issue in such proceeding. Such an issue could only be raised in an independent suit between the claimant and the administrator of the decedent, like the present one. Therefore the issues raised in the present case were not adjudicatd in the probate proceedings.
The general rule is that where a person realizes that he is about to die, and under a sense of impending death gives chattels to another intending to pass title in the event of his death, and the latter accepts the gift, such facts constitute a gift causa mortis. Lowe v. Hart, 93 Ark. 548.
It is generally held that where such a gift is made to one person for another there will be a presumption of acceptance where the gift is beneficial. Ammon v. Martin, 59 Ark. 191; Pyle v. East (Iowa), 3 A. L. R. 885, and case note at page 917, and Varley v. Sims' (Minn.), 8 L. R. A. (N. S.) 829.
In the present case A. T. McMillan, realizing that he was about to die in a short time, gave to "Wilmot Clark, Jr., a packet containing Liberty Bonds, War Savings Stamps, two insurance policies, his check book, and some deeds to real estate and directed him to divide the property equally between his own mother and his deceased wife’s mother. There was about $350 in Liberty bonds, and about $400 in War Savings Stamps. Under the rule just announced, there was a delivery ,of these items and they constituted a gift ccmsa mortis. There was about $90.50 deposited in the bank to the credit of A. T. McMillan. The question is presented as to whether or not the delivery of the depositor’s bank book constituted this a gift ccmsa mortis. The deposit of A. T. McMillan could not be withdrawn from the bank by the production of his bank book, but could be withdrawn only on his check. The delivery by McMillan to Clark of his bank book did not give the latter dominion and control over the money which McMillan had on deposit in the bank. The deposit was just as subject to check, without the production of the book as with it. The book was only evidence of the state of the account between the bank and McMillan. Therefore, we hold that the facts stated are not sufficient to constitute a valid gift ccmsa mortis of the money on deposit in the bank to the credit of deceased. Jones v. Weakley (Ala.), 12 So. 420, and cases cited; Ashbrook v. Ryon, 2 Bush (Ky.), 228; 92 Am. Dec. 481, and Seabo v. Speckman (Fla.), L. R. A. 1917 D, 357.
Our own case of Lowe v. Hart, 93 Ark. 548, is not opposed to the view herein expressed, but rather confirms it. In that case the bank through its cashier had issued a written certificate of deposit, and the certificate recited that the amount deposited was payable to the order of the depositor on the return of the certificate properly indorsed. The depositor on his deathbed had given the certificate to Mrs. Hart and spoke of it as a check for the money. Under the circumstances the court held that there was a valid gift ccmsa mortis.
As we have already seen, the bank book in the present case was merely evidence of the amounts which from time to time had been placed in the balnk by the depositor, and the delivery of the book could not pass the title thereto.
The delivery of the life insurance policies was complete, and it is well settled that life insurance policies payable to the legal representatives of the insured may be transferred by a mere delivery without a written as-' signment. Gledhill v. McCoombs (Me.), 45 L. R. A. (N. S.) 26, Ann. Cas. 1914 D, 294. In a case note to the latter citation on page 297, it is said that the general, if not universal, rule is, that a policy of insurance on the life of the donor may be made the subject of a gift in the same manner as any other chose in action and numerous decisions are cited in support of the rule.
Again on page 298 it is said that the gift of a policy of life insurance is valid in the absence of a written as-sigment, provided there is a delivery of the policy by (he donor to the donee, and numerous cases are cited in support thereof. In such cases the courts make no distinction between bonds or promissory notes and policies of life insurance. Each is held to be a contractual obligation to pay money at a certain time, so that it is said that, if the mere delivery of a promissory note without indorsement is sufficient to entitle the donee as against the donor and his representative to demand and receive the money from the obligor, no reason can be perceived why under like circumstances the donee of a life insurance policy should not be vested with like rights.
The attempted gift of the real estate was not a valid gift ccmsa mortis. It is almost universally held that a gift of real estate as a donatio mortis causa can not be sustained. .12 Cyc. 1242 and cases cited; Meach v. Meach, 24 Vt. 591; and Johnson v. Colley (Va.) 99 Am. St. Hep. 884, and case note at page 908.
It results from the views we have expressed that there was a valid gift causa mortis of the Liberty Bonds, the War Savings Stamps and the insurance policies, but that no title passed to the money deposited in the bank or to the real estate.
Finally, it is contended that there was no intention on the part of the donor to make the gift otherwise than as a whole, and that the failure of a part must defeat the whole. To support this contention, counsel cite McGrath v. Reynolds, 116 Mass. 566, and Knight v. Tripp (Cal.), 54 Pac. 267.
We do not think that the facts in those cases control here. In each of them direction was given to a third person as here to pay certain bequests to others, but here the analogy ends. In each of those cases the donor directed the donee to give the property to various persons, and different amounts were directed to be given to them. It was the evident purpose of the donor to distribute his property to all these persons, and there was nothing to indicate that a portion of the property would have been given to some of them if the whole gift was not held valid.
In the case at bar the donor directed the donee to divide his property equally between two persons, and a failure of a part of the intended gift could in no wise affect the remainder. It is not to be supposed that the donor would not have intended a part of his property to be divided equally between the parties because his gift to the whole of it failed. On the contrary, it was the evident intention of the donor to divide all of his property between his own mother and his deceased wife’s mother. The reason of his course is perfectly apparent, He and his wife had made wills in favor of each other. His wife had died but a few days before he realized that he was about to die. Therefore, he wished to divide his property equally between his own mother and his deceased wife’s mother. A failure to accomplish his purpose as a whole should in no sense be held to defeat it entirely.
It follows that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.