Ford v. Byrd
Citation | 183 Miss. 846,184 So. 443 |
Decision Date | 14 November 1938 |
Docket Number | 33368 |
Court | United States State Supreme Court of Mississippi |
Parties | FORD v. BYRD et al |
Suggestion Of Error Overruled December 12, 1938.
(Division A.)
1 GIFTS.
In proceeding by heir against administratrix who claimed as inter vivos gifts bonds formerly owned by decedent, evidence sustained chancellor's decree of a gift of one-half of the bonds but decree as to second gift of the other half of the bonds was unsupported by the evidence.
2 GIFTS.
Declarations of alleged donor that she intended to give and had given bonds to donee were insufficient to disclose a gift, where unaccompanied by any act showing a delivery and parting with possession and control.
3 EVIDENCE.
In proceeding by heir against executrix who claimed as inter vivos gifts bonds formerly owned by deceased exclusion of evidence that alleged donee heard statement of attorney after reading of will that bonds belonged to the estate and then made no claim to the bonds was error.
4. WITNESSES.
In proceeding by heir involving ownership of bonds formerly owned by deceased and claimed by her executrix as inter vivos gifts, evidence by heir negativing gift would not be in support of a claim by any one against the estate and would be competent under statute providing that a person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person. (Code 1930, sec. 1529.)
5. WITNESSES.
Evidence concerning statements made out of court by a witness is incompetent unless a proper predicate therefor has been laid.
6. CONTINUANCE.
Refusal of trial court to require the litigant obtaining continuance on ground of character of pleading litigant was required to answer to pay certain expenses incurred by opponent in attending court was not an abuse of discretion.
HON. J. L. WILLIAMS, Chancellor.
APPEAL from the chancery court of Warren county, HON. J. L. WILLIAMS, Chancellor.
Proceeding by Mrs. Helen Meyer Ford against Miss Leona Byrd, both individually and as executrix of the will of Mrs. Lizzie Meyer Wehmeyer and Julius M. Buchanan, as executor, involving the ownership of $ 9, 000 in U.S. Bonds formerly owned by deceased and claimed as a gift inter vivos by Miss Leona Byrd. From a decree for the defendants, Mrs. Helen Meyer Ford appeals. Reversed and remanded.
Reversed and remanded.
F. Lee Evans, of Atlanta, Ga., and Dabney & Dabney, of Vicksburg, for appellant.
The decree of the court was against the overwhelming weight of the evidence.
It will not be denied that all of the authorities are in accord that if the donor places the subject of the proposed gift in the hands of his own agent with instructions to complete the transfer, until such agent acts upon the instruction the donor may revoke the power and retake the property, for he does not under such circumstances lose control (28 C. J., 640, 650, 651), and his death, before the agent makes the delivery, revokes the agency.
Davis v. Wachter, 140 So. 361.
Gifts first asserted after the death of the donor are regarded with suspicion by the courts, and the rule requiring gifts to be established by clear and convincing evidence is especially applicable in such cases, particularly where a confidential relationship existed between the parties, some of the decisions holding in such cases that the evidence must be as clear as that required to sustain a gift causa mortis. Mere preponderance of evidence will not suffice. The evidence must be so cogent, it has been said, as to leave no reasonable doubt in the mind of an unbiased person that the demand is a proper one.
28 C. J., 676 & 681; Wheatley v. Abbott, 32 Miss. 343; Deer v. Moss Point Baptist Church, 17 So. 1.
Thus the mere fact that a person claiming property as a gift after the death of the alleged donor has the property in his possession has little if any weight on the question of a gift, where the claimant has had access to the property and effects of the alleged donor during his last sickness, or after his death.
28 C. J., page 678; Buie v. Buie, 67 Miss. 456, 7 So. 344.
Appellee had access to the property but merely as a help to Mrs. Wehmeyer and because she had no other person to assist her.
Davis v. Wachter, 140, So. 361; Wheatley v. Abbott, 32 Miss. 343; 2 Kent. Com. 438; Yates' Estate v. Alabama-Mississippi Conference Association of Seventh-Day Adventists, Inc., 176, So. 534; Muir v. Gregory, 168 F. 641; 28 C. J. 678; McClellan v. McCauley, 130 So. 145; Meyer v. Meyer, 106 Miss. 638, 64 So. 420.
The court erred in sustaining appellee's objection to appellant, Mrs. Ford, testifying in support of the estate as against the adverse claim of Leona Byrd.
Before tendering Mrs. Ford as a witness, she was not offered for the purpose of testifying to establish her claim against the estate of Mrs. Wehmeyer but for the estate of Mrs. Wehmeyer and against the adverse claim of Leona Byrd, an executrix of the estate, who had turned traitor to the estate. We concede that Mrs. Ford would benefit by the failure of Leona Byrd to establish her claim but that should not in our opinion disqualify her. In A. H. Lamar et al. v. Joel Williams, et al., Admr., 39 Miss. 342, the court said: "The spirit and policy of the proviso, appear clearly to be that a living party, either plaintiff or defendant, in an action in which the representatives of a decedent's estate are a party, shall not be competent to testify in his own behalf to establish his demand or right, asserted and relied on in the action, against the estate, if the matter exceed the sum of fifty dollars; because an undue advantage would thereby be given to the living party, by enabling him to testify to matter which took place between him and the decedent, and which, resting entirely in the private transactions of the parties, could not be disproved or explained by reason of the death of the other party."
Brown v. Parker, 143 Miss. 291, 108 So. 492; Jackson v. Smith, 68 Miss. 53.
The court erred in not construing the will in response to the petition for construction, and in not holding the eighth paragraph thereof void, and in not holding that appellant was entitled to inherit all of the assets of said estate not specially devised or bequeathed.
Page on Wills (2d), sec. 809, sec. 1414, page 2361, sec. 1423, page 2393, sec. 1425, sec. 44, page 79, page 80, 82, sec. 46; Brewster v. Foreign Mission Board, 2 N. B. Eq. 172; 94 A.L.R., pages 65, 66; Handley v. Palmer, 91 F. 948; Karsten v. Karsten, 98 N.E. 947; Taylor v. Horst, 63 P. 231.
R. M. Kelly and Brunini, Wright & Brunini, all of Vicksburg, for appellee.
It is true that the burden of proof is upon the claimant, but if the preponderance is clear and convincing it doesn't have to be more.
Amendments in the discretion of the court are allowed with liberality to the ends of justice and the merits.
The Chancellor correctly applied the law to the facts, and he found the facts adversely to appellant.
Admissions in withdrawn, abandoned or suspended pleadings are not conclusive on the pleader, but may be explained or contradicted.
Prewett v. Coopwood, 30 Miss. 369; 22 C. J., sec. 505, page 422, sec. 507, page 425.
To impeach witness by previous statements or conversations, he must by predicate be apprised to time, place and persons present, and particular impeaching matter must be distinctly presented to his attention.
Harrison v. State, 152 So. 494, 168 Miss. 699; Magness v. State, 63 So. 352, 106 Miss. 195; Jeffries v. State, 28 So. 948, 77 Miss. 757; Corer v. State, 130 So. 511, 158 Miss. 493; Lanham v. Wright, 142 So. 5, 164 Miss. 1; Cody v. State, 148 So. 627, 167 Miss. 150.
Argued orally by Fred Dabney, for appellant, and by R. M. Kelly and John Brunini, for appellee.
Mrs. Lizzie Meyer Wehmeyer died on August 10, 1936, leaving a will in which Leona Byrd was nominated as executrix, and Julius M. Buchanan as executor. On August 17, 1936, they applied for and received letters of administration, the petition therefor setting forth that her estate consisted in part of $ 9, 000 in U.S. Bonds.
On March 27, 1937, Helen Meyer Ford filed a petition in the court below in this administration proceeding setting forth Mrs. Wehmeyer's will, and alleging in substance that: The petitioner is Mrs. Wehmeyer's sole heir at law; publication to creditors had been made by the executors, and the time for probating claims against the estate had expired without any claims being probated; and that no account had been filed by the executors. That the following bequests in the will are void:
The words "Julius Buch-" appear under the X's in Item 9. The prayer of the petition is:
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