Baldridge v. Stribling

• Decision Date: 12 February 1912
• Citation: 101 Miss. 666,57 So. 658
• Court: Mississippi Supreme Court
• Parties: MRS. ELIZABETH BALDRIDGE v. J. R. STRIBLING ET AL

57 So. 658

101 Miss. 666

MRS. ELIZABETH BALDRIDGE v. J. R. STRIBLING ET AL

Supreme Court of Mississippi

February 12, 1912

October 1911

APPEAL from the chancery court of Lowndes county, HON. J. F. MCCOOL Chancellor.

Suit by Elizabeth Baldridge against S. R. Stribling and wife. From a decree for defendants, complainant appeals.

Mrs Baldridge filed a bill in the chancery court against S. R Stribling and wife for an accounting. The bill alleged that one P. Cates, father of complainant and of Mrs. Stribling, died, leaving certain property which by will he had devised equally to his two daughters, Mrs. Baldridge and Mrs. Stribling; that for some time prior to his death he had lived with Mrs. Stribling, and that she and her husband had taken possession of his property, which consisted of money, and had unduly influenced the decedent to part with same; and that they had converted it to their own use, etc. Defendants filed separate answers, denying that they had possession of any of decedent's property, admitting that he had lived with defendants for some time before his death, and averring the fact to be that some time prior to his death he had drawn all of his money from the bank, and had given three thousand, six hundred dollars to his daughter, Mrs. Stribling, upon condition she would take care of him the balance of his life, and give him what spending money he needed, and pay doctor's bills, funeral expenses, etc.

On the trial, Mrs. Stribling and her husband testified to these facts, and their testimony is substantiated by their son and son-in-law, Gryder, and by the cashier and teller of the bank, who testified that decedent came in person to the bank and withdrew his money, and that the following day Mr. Stribling deposited three thousand, six hundred dollars to his wife's credit. The bank books substantiated this testimony. Mrs. Stribling testified that her father, in his old age (being nearly ninety years old), was very feeble and spent most of his time alternately between his two daughters; that a few years before his death Mrs. Baldridge had moved to Florence, Ala., to live with her married daughter, Mrs. Price; that when their father left Florence, and came to the home of the Striblings at Columbus to spend a while with them, Mrs. Stribling received a letter from Dr. Price, the son-in-law of Mrs. Baldridge, with whom she had been living, stating that they could not board the old man any longer as their house was crowded and they needed the spare room for other purposes. Mrs. Stribling testifies that after her father had stayed with her for awhile he broached the subject of returning to Florence to spend a while with Mrs. Baldridge, and it was then that she informed him of the contents of Dr. Price's letter, and that he seemed very much distressed, and stated that he was sorry he had divided all his property among his children (as he had done some years before), and that he had made a will leaving the balance equally to Mrs. Baldridge and Mrs. Stribling, but that, as the will never had been filed, he would now give Mrs. Stribling the balance of the money he had on hand, on condition she would take care of him for his remaining years, which she agreed to do.

Depositions were taken, and a motion was made by complainant to suppress the depositions of Mrs. Stribling as to the gift made to her by her father a short while before his death, because it was an effort to assert a claim against the estate of a deceased person, and to suppress that part of her testimony relative to the contents of the letter which she had received from Dr. Price, as the original letter was the best evidence. The court overruled the motion, and entered a decree for the defendants, and complainant appeals.

Affirmed.

W. J. Lamb, for appellant.

The principal question presented for the court's attention in this case is the motion to suppress testimony. We contend that the testimony is not competent and that the motion of the appellant to suppress the testimony should have been sustained.

This is a controversy which arose between two sisters, daughters of Pleasant Cates, about the estate of their father, none of the other heirs of Mr. Cates claiming any interest whatever in this estate.

Mr. Cates departed this life in December, 1906, testate. His will was duly recorded in the chancery clerk's office of Lowndes county, Mississippi, where he resided and was living at the time of his death. In this will he left all of his property of which he died seized and possessed to his two daughters, the appellant, Mrs. Elizabeth Baldridge, and one of the appellees, Mrs. Mary Jane Stribling. Mrs. Stribling denies that Mr. Cates, her father, left any estate whatever. However, she admits in her testimony and in her answer that the deceased, Pleasant Cates, did have some money, to-wit: the sum of three thousand, six hundred dollars which Mrs. Stribling contends the deceased gave her in February, 1906. After the will was probated, Mrs. Baldridge called on Mrs. Stribling and demanded of her that she surrender one half of this sum and any other sum that she had, or that Pleasant Cates had, at the time of his death, which Mrs. Stribling refused to do, claiming that all of his property was hers, made to her as a gift in February, 1906.

The principal testimony in this record to sustain that contention is the testimony of Mrs. Stribling, and the contention that this property was a gift to Mrs. Stribling must virtually stand or fall on her own testimony.

This question has been settled repeatedly by the courts in favor of the appellant's contention, to-wit, that Mrs. Mary Jane Stribling was not a competent witness to testify in her own behalf in this case.

In the case of Cockrell et al. v. Mitchell, the court said: "The objection to the competency of the appellee as a witness should have been sustained. The purport of his testimony was to show that his father had given him the mule in controversy, and, the father being now dead, the appellee is disqualified to testify as a witness as to any transaction had with him. The case is within the principles of many adjudications of this court. It is entirely covered by Jackson v. Smith, 68 Miss. 53, 8 So. 258. Judgment reversed." Cockrell v. Mitchell, 15 So. 41, and a more recent decision in this point is the case of Burnett v. Smith, 93 Miss. 566.

If the motion of the appellant is sustained, as we contend it should be, then the relief should have been granted to the appellant in this case, for there is nothing here on which Mrs. Stribling can base her contention that this money was a gift to her from her father.

Now, Mrs. Stribling contends that her father gave her this money in February, while the conversation about which Mr. Cates testifies took place the following June; and R. C. Cates has no interest in this lawsuit and is not claiming any of the estate of Pleasant Cates.

If the motion to suppress the incompetent and irrelevant testimony in this case is sustained, it leaves the appellee without anything whatever on which to stand to sustain their contention. We respectfully submit to the court that this motion ought to be sustained and that the appellant is entitled to an accounting against the appellee for the money belonging to this estate and ought to have her one-half interest in her father's estate.

E. T. Sykes, for appellees.

Campbell, J., delivering the opinion of the court in Jacks v. Bridwell, 51 Miss. 881, says: "The term 'estate of a deceased person' is used, in its broad and popular sense, to signify all property of every kind which one leaves at his death. Therefore, any 'right' asserted against real or personal property left by the deceased person, as accrued to the party by virtue of a dealing between him and such person, since deceased renders the person asserting it incompetent as a witness to maintain in his own behalf such asserted right."

It follows that as shown by the testimony of Mrs. Stribling and that of her husband supported, yea confirmed, by the testimony of W. P. Stribling and W. C. Gryder, the deceased, P. Cates, having disposed of all his property in his lifetime and therefore left no estate in possession at his death, Mrs. Stribling was a competent witness, and could legally testify as to the gift of the money to her by deceased in his lifetime and which gift inter vivos of all his property removed it from the operation of any prior will of the decedent. Such gift operated as an ademption of the property and a total revocation of the will which Mrs. Baldridge is seeking to establish. 30 Am. and Eng. Ency. of Law (2 Ed.), 652 (5).

Again if the interest claimed by a witness is shown to have been transferred and delivered (as here the possession of, and title to, the money was delivered by the decedent in life to Mrs. Stribling as an absolute gift) before the death of the decedent, the donee thereof is not disqualified by the statute to testify as a witness to establish his or her claim thereto. Snell v. Fewell, 64 Miss. 655.

In the above case, Cooper, C. J., speaking for the court says: "But it must appear either that the witness is interested in the subject-matter or that he was so interested at the time of the death of the decedent. If on the fact developed in the trial it should appear that the interest claimed to have been transferred before the death of the decedent had in fact been transferred after the death, the testimony should be excluded; but where, by the testimony of such witness or otherwise, it was shown that the transfer was made before the death, the witness is competent." Citing 1 Greenleaf on Evidence, 422, 424.

I trust I will not be considered presumptious in stating that the cases cited by counsel for appellant in...