Howell v. Ott

• Decision Date: 30 May 1938
• Docket Number: 33095
• Court: Mississippi Supreme Court
• Parties: HOWELL v. OTT

180 So. 52

181 So. 740, 182 Miss. 252

HOWELL
v.
OTT

No. 33095

Supreme Court of Mississippi

May 30, 1938

(Division B.)

1. EXECUTORS AND ADMINISTBATORS.

The assignee of note and deed of trust securing it, assigned by testatrix subsequent to execution of will, received whatever title thereto testatrix could convey, as against contention that note and deed of trust belonged to testatrix at her death, and were subject to administration.

2. USURY.

Under statute requiring forfeiture of interest where greater rate than 8 per cent, is stipulated for or received, it was contemplated that there should be either an agreement to receive more than 8 per cent, or a receipt of such interest from debtor to creditor, and a mere intention to charge, without a stipulation or receipt, does not violate statute (Code 1930, sec. 1946).

3. USURY.

In order to ''receive'' interest in excess of that permitted by statute, there must be one person to offer and another to take, or passage of interest from one person to another; a mere book entry not being contemplated by statute unless it is accepted and agreed upon (Code 1930, sec. 1946).

4. USURY.

Where excessive interest charge by creditor of testatrix was made by a mere book entry on his account and no actual money was received by him from testatrix, forfeiture of all interest under statute was not required (Code 1930, sec. 1946).

5. GIFTS.

Where testatrix executed deed, which was recorded, conveying all personal property of every kind in her residence, but providing [182 Miss. 253] that she retained life estate in premises, and thereafter shortly before her death she delivered to grantee her jewelry and keys to residence, garage, and safe, and stated that everything in residence belonged to grantee, there was a valid gift of all property in house, safe, and garage to grantee.

6. WILLS.

The court, in construing a will, has duty to give effect thereto and to carry out intention of testatrix, if ascertainable from will, which is controlling unless in violation of specific provisions involved.

7. WILLS.

The court in construing will was required to presume that language of will that just debts should be paid provided they were probated was intended to make personal property responsible only for probated debts.

8. WILLS.

The court in construing will was required to presume that testatrix in using phrase "all my right, title and interest in property" used it intelligently and with knowledge of meaning of words.

9. WILLS.

Under will devising all of testatrix' "right, title and interest" in and to described property, testatrix intended devise to be of such estate only as she had in land at her death, and that devisee should take cum onere.

10. EXECUTORS AND ADMINISTRATORS.

Where testatrix, after executing will devising her "right, title and interest" in and to land, gave deed of trust to executor covering same land and clothed him with full discretion, executor was entitled to stand upon his security and not probate his claim (Code 1930, secs. 1677, 1679).

11. EXECUTORS AND ADMINISTRATORS.

Executors and administrators have same right as any other creditor to stand upon their security and not probate their claims against estate (Code 1930, sec. 1677).

12. EXECUTORS AND ADMINISTRATORS.

Where executor had failed to probate his claim against estate secured by mortgage upon property devised in will of testatrix, devisee was not entitled to have land exonerated and executor's claim paid out of general assets, since that would defeat [182 Miss. 254] purpose of statute prohibiting payment of claims not probated (Code 1930, secs. 1672, 1674).

13. WILLS.

The rule in reference to abatement of legacies and exhausting residuary legacies to exonerate debts or incumbrances on realty may be controlled by terms of will.

14. EXECUTORS AND ADMIMISTRATORS.

The judgment of lower court concerning amount of fees to be allowed executor, where provided by law, and as to which court has discretion, is entitled to great respect.

15. EXECUTORS AND ADMINISTRATORS.

Where court in allowing fees to executor was probably influenced by its theory that personalty belonged to estate and constituted part of assets to be administered, redetermination of amount of allowance was required in light of reviewing court's holding that personal property was not part of estate.

ON SUGGESTION OF ERROR.

(Division B. May 30, 1938.)

[181 So. 740. No. 33095.]

Division B

April 4, 1938

APPEAL from the chancery court of Coahoma county, HON. R. E. JACKSON, Chancellor.

Suit by Reginald D. Ott against Y. E. Howell, executor, to set aside a decree approving the account of Y. E. Howell, as executor of the estate of Mrs. Virgie M. [182 Miss. 255] Cutrer. From the judgment rendered, defendants appeals. Reversed and remanded.

On suggestion of error. Suggestion of error overruled.

Reversed and remanded. Suggestion of error overruled.

G. Edw. Williams and E. F. Whittington, both of Clarksdale, for appellant.

Was the gift of the personal property consummated, or does this property constitute a portion of the estate to be administered? If the language of the instrument shows that the conveyance was not to take effect until after the death of the donor, no title passed. But if the language of the instrument shows that the conveyance was to take effect upon delivery of the deed, title passed. In other words, the question for decision is whether it is the conveyance, or merely the enjoyment of the property conveyed, which is postponed.

Stubblefield v. Haywood, 123 Miss. 480.

The test seems to be whether any interest in the property itself has been retained, as distinguished from the mere use or enjoyment.

28 C. J. 649.

The donor in this case merely reserves the right to use the personal property conveyed during the term of her natural life.

McDaniel v. Johns, 45 Miss. 632; 28 C. J. 637.

After delivery of the deed, could the grantor have revoked the conveyance? Under the undisputed facts in this case it is not important whether it be said title did or did not pass by the deed. To say the least, the instrument supplies some of the elements of a valid gift. It shows the intent on the part of the donor to give certain specific property to the donee. After the delivery of the deed, the property itself was delivered into the unrestricted possession of Mrs. Howell, the donee, and was accepted by her. Certainly, after that [182 Miss. 256] was done, there was no element lacking to make a perfected gift inter vivos.

Bank v. Peugh, 129 Miss. 817, 93 So. 353.

A gift of personal property made with the intent to take effect immediately and irrevocably, and fully executed by complete delivery, is binding as a gift inter vivos, even if the donor was in extremis and died soon after.

12 R. C. L., sec. 9, Gifts; Wilson v. Jourdan, 79 Miss. 133.

Elements constituting a gift causa mortis do not exist here. The donor was not momentarily expecting death, nor was she in extremis. The delivery of the property was not made with the reservation for its return in case death did not occur. When the donor relinquishes all dominion over the gift, as was done in the instant case, the gift is one inter vivos.

Harmon v. McFarland, 135 Miss. 284, 99 So. 566.

We respectfully submit that the court was in error in decreeing that the personal property is a part of the estate to be administered.

Baber v. Caples, Ann. Cas. 1916C, 1031.

It seems to be generally held, however, that the rule exonerating land at the expense of the legatees is only applicable to residuary legatees, and does not affect specific or pecuniary legacies. That is, the equity to have real estate exonerated from the personalty subsists only between the devisees and residuary legatees, and not as against specific and general legatees.

8 Ann. Cas. 593; Stewart v. Robinson, 80 Miss. 297.

Ordinarily, it is true, the residuum is used to pay mortgage debts as well as debts ordinarily probated. We submit, however, in this case the testatrix certainly did not intend for this to be done. She had already mortgaged this land and certainly knew she would have to mortgage it further to obtain money to pay taxes, etc. Knowing the above facts, the testatrix devised to appellee [182 Miss. 257] all of her "right, title and interest in and to" the property therein described. In addition to this the testatrix directed that her debts which were probated and allowed be paid.

The real intent of the testatrix must be determined, and when determined, must be followed.

Keeley v. Adams, 149 Miss. 201, 155 So. 344; Blakely v. Du Bose, 52 So. 746.

Whether a payment be made by the debtor to his creditor who holds a mortgage upon his property, or whether an account in his favor against the creditor is to be regarded as a payment on the mortgage, leaving the mortgage standing as it was before, is a question of the intention of the parties, and is to be determined as a question of fact. In the absence of any agreement between the parties, express or implied, the mere existence of a debt due to the mortgagor from the mortgagee does not operate as a satisfaction of the mortgage wholly or in part, or enable him afterwards to set off such indebtedness against an assignee of the mortgage. 2 Jones on Mortgage, sections 1156 and 1157.

2 Jones on Mortgage, sections 1156 and 1157.

The interest charged on the loan is not usurious. Of course, if it be taken for granted that the contract between Mrs. Cutter and Mr. Howell was one whereby Mr. Howell obligated himself to advance to Mrs. Cutter from time to time certain funds, the total of which was not to exceed $ 4,000.00, the long list of authorities cited and quoted at length by counsel would have some bearing here. A contract for future advances, where the amount is not passed to the credit of the borrower and not made immediately...