Buie v. Buie

• Decision Date: 10 March 1890
• Court: Mississippi Supreme Court
• Parties: R. M. BUIE ET AL. v. MARY BUIE

7 So. 344

67 Miss. 456

R. M. BUIE ET AL. v. MARY BUIE

Supreme Court of Mississippi

March 10, 1890

FROM the chancery court of Copiah county, HON. WARREN COWAN Chancellor.

This suit originated in a bill of interpleader filed by one Calvin Blue against Mary Buie, the appellee, and Robert M. Buie and others, the appellants. The bill alleged that in 1873 Gilbert M. Buie died intestate, leaving the appellee, his widow, and the appellants, his children and grandchildren; that prior to the death of Buie, complainant, and one McLain, his partner borrowed about $ 1800 from him, and executed a note therefor in their firm name of C. Blue & Co., payable to said Buie or order; that different payments were made on the note during the lifetime of Gilbert M. Buie, but there remained due thereon at his death $ 1963.40; that both the appellants and the appellee were claiming the amount due upon the note, and being unable to determine to whom it should be paid, he asked leave to pay the fired into court, and claimants were cited to appear and propound their claims. The bill sets out at length the facts relied on by the said contestants respectively, to establish their claim to the fund as hereinafter stated. The fired was paid into court, and the complainant discharged.

Robert M. Buie, together with the other appellants, filed an answer and also a cross-bill against Mary Buie, in which they recite that appellee is the widow of Gilbert M. Buie, who died as aforesaid, and that they are his children and grandchildren by a former marriage; that the said Gilbert M. Buie made a will giving certain specified bequests to his said wife, and bequeathing the residue of his property to his children through whom appellants claim. The cross-bill also recites the execution of the note by C. Blue & Co. to Gilbert M. Buie, and alleges that it was part of his estate at the time of his death, and passed to appellants under the residuary clause of the will; but that after the death of said Gilbert M. Buie the note came into the hands of appellee, who wrongfully and fraudulently appropriated it, and induced the firm of C. Blue & Co. to execute, in lieu thereof, a new note payable to herself, which renewal note has since been held by appellee, claiming it as her own; that after she had collected the sum of $ 2587.93 on the note at various times, there still remained due in August, 1879, the sum of $ 1420, for which Calvin Blue, surviving partner of the firm of C. Blue & Co., executed still another note payable to the appellee; that Mary Buie, the appellee, recovered judgment on this note against Calvin Blue in 1889 for the principal and interest due thereon. Appellants further charge that, although the note was originally payable to Gilbert M. Buie, and was part of his estate at his death, the appellee concealed its existence from the executors of the will and complainants.

The prayer of the cross-bill was for a decree directing the fund in court to be paid to the complainants therein, and for a decree against Mary Buie for the sums collected by her on the several notes, which it is claimed she received as trustee in her own wrong for these complainants.

Mary Buie, the appellee, filed a demurrer to the cross-bill upon the ground that there was no equity on the face of the bill, and that complainants therein had an adequate remedy at law. The demurrer was overruled, and Mary Buie filed her answer, in which she admitted the execution of the will, as alleged, and the delivery by C. Blue & Co. of the note to her husband, and she averred that her husband, a few days before his death, assigned and delivered the note to her for a valuable consideration. She denied any concealment or fraud in the premises, and averred that she informed the persons named as executors in the will, and the heirs of Gilbert M. Buie, of her ownership of the note soon after the death of her husband. She further pleaded the six years statute of limitations in bar of the rights of complainants in the cross-bill.

The will of Gilbert M. Buie was proved and recorded in the chancery court of Jefferson county, but the persons named therein as executors did not qualify, and no letters testamentary were ever issued; but the legatees and devisees agreed upon a distribution in accordance with the will. The proof showed that Calvin Blue was perfectly solvent at the time of Gilbert M. Buie's death, and continued so, although the last payment made by him to appellee upon the note was in 1879.

There was some evidence tending to prove that Gilbert M. Buie was indebted at the time of his death to the appellee for money borrowed from her, but no writing was produced as evidence of this, nor was there any written evidence of the gift to her by deceased of the note due by C. Blue & Co., and no witness testified of such assignment or gift, except the appellee herself. Upon motion of appellants in the cross-bill to suppress her testimony, the court suppressed it so far as it related to what transpired prior to the death of her husband.

On final hearing the cross-bill was dismissed, and the fired in court awarded to the appellee, and the costs were taxed against the complainants in the cross-bill. From this decree said complainants have appealed.

A. C. McNair, for appellants.

1. Mary Buie was incompetent as a witness to establish her own claim against her dead husband's estate. As the estate was never administered, she is disqualified by the statute from testifying at all. If the estate had been administered, she might have testified to anything occurring during the administration, but as it was, she was disqualified. Apart from her testimony, there is no evidence to sustain her claim of ownership to the note. On the other hand, the absence of any written assignment or endorsement of the note, or of any evidence of statements, or admissions by Gilbert Buie, and all the facts are strongly persuasive that the note was not given to the appellee.

2. The decision of the chancellor was that the facts did not establish fraud in appellee, and that appellants had a remedy at law, and were barred by the statute of limitations.

There being no administration by the courts of the estate, the legal title to the note was in abeyance. Ricks v. Hilliard, 45 Miss. 359. The heirs of Buie are not barred. Code 1871, § 2162; Code 1880, § 2683; Hambrick v. Jones, 64 Miss. 240; Perkins v. Sturdivant [MS. rep.]. Suit did not lie at common law for a general legacy, and the statute authorizing suits at law for legacies applies to specific legacies. Code 1871, § 1177; Code 1880, § 2085; Worten v. Howard, 2 S. & M. 527.

3. If the statute of limitations is applicable, it could run only from the time Mrs. Buie collected the money, as that is the substantial thing in controversy. The note is mere evidence thereof. It has no application to the funds in the hands of the clerk of the court. Livermore v. Johnson, 27 Miss. 284. Besides, appellee by her conduct became executrix de son tort, and cannot plead the statute as a defense. She is a trustee for appellants,...