Jackson v. Johnson

• Court: Mississippi Supreme Court
• Writing for the Court: SYKES, P.J.
• Citation: Jackson v. Johnson, 126 Miss. 26, 88 So. 410 (Miss. 1921)
• Decision Date: 23 May 1921
• Docket Number: 21774
• Parties: JACKSON v. JOHNSON

88 So. 410

126 Miss. 26

JACKSON v. JOHNSON

No. 21774

Supreme Court of Mississippi

May 23, 1921

1 WITNESSES. Party to suit involving estate of decedent incompetent when claiming under contract with decedent.

Where a part of the estate of a deceased person is the subject-matter of the litigation, a party to the suit is incompetent to testify to his contract with the deceased, by virtue of which contract he is claiming a part of this estate. This testimony is incompetent, though the suit is not between him who would testify and the administrator or executor of the deceased person, but extends to every assertion of such right by a party to any part of the estate left by a deceased person and claimed by such party by reason of an alleged contract between such party and the deceased person.

2. EVIDENCE. When declarations by decedent are admissible as between third persons stated.

Declarations made by a deceased person as to facts presumably within his knowledge, if relevant to the matter of inquiry are admissible in testimony as between third parties, first, when it appears that the declarant is dead; second, that the declaration was against his pecuniary interest; third, that it was a fact in relation to a matter of which he was personally cognizant; fourth, that the declarant had no possible motive to falsify the fact declared.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS Judge.

Action by Amanda Thompson Jackson against Cornelia Johnson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

W. S Chapman and S. C. Mounter, for appellant.

The defendant first moved to rule out all the testimony of the plaintiff, Amanda Thompson, on the ground that she was testifying to establish her own claim against the estate of a decedent. The court on this motion ruled out all the testimony of Amanda, not only what she testified to with reference to Andrew, but all she testified to with reference to her dealings and connections with Cornelia, after Andrew's death.

She testified to Cornelia sending for her and proposing and agreeing to carry out Andrew's terms of employment; to her staying on the place at the instance of the defendant, and working and making the crop, and picking it out; to Cornelia furnishing her, and to her taking the cotton and driving her, with the assistance of McGee, off the place. All of this happened, after the death of Andrew.

In the case of Witherspoon v. Blewett, 47 Miss. 570, 576, which was a replevin suit for certain cattle the court said: "The wrong and injury complained of by the plaintiff, were committed after her intestate's death, and her possession as administratrix was invaded; against her right as such legal owner, was the conversion committed by the defendant. All the parties connected with the transaction, as owner and wrongdoer, are living persons. The administratrix, as owner, of the cattle caused a demand to be made of the defendant; the matters about which he was permitted to testify, connected themselves with the demand, his response thereto, the character of his possession, how acquired, and how held."

In the case of McDonald v. McDonald, 68 Miss. 689, 690, the court said: "The appellant was a competent witness to testify to what occurred after the death of his intestate. The last clause of section 1602, of the Code was for the purpose of meeting Haralson v. White, 38 Miss. 178, and has the effect to render competent as a witness any person as to anything subsequent to the death of the decedent."

Code 1906, section 1917, but this shall not apply to claims or defenses which arose in the course of the administration of the estate of such person. Her right of action did not arise until she had finished her year's work. Her right or cause of action arose after death of the decedent.

The woman, Cornelia Johnson, sent for her and employed her again to finish out the crop. She could certainly testify as to what took place between her and Cornelia Johnson. She was certainly entitled to recover for the work under Cornelia Johnson.

It was the fact that she worked in the crop at all that gave her the lien independent of any contract. The statute gives the lien for the work done. If she worked for only a few days in the crop she was entitled to a lien for so much.

She mentioned her contract of employment by Andrew Johnson simply as inducement to show how she got on the place. This is an action in rem for the cotton itself. The cotton did not arise until after the death of Andrew. It was not in existence until after his death. The tort was committed by Cornelia Johnson and she is yet alive. The plaintiff is not seeking to hold the estate of the decedent for anything. Cornelia Johnson did not claim as administratrix or executrix of Andrew Johnson. She took the cotton in her own right or her own wrong more correctly speaking. She would not be allowed to get this woman's service, and go off with the product and not pay her anything, and defend on the ground that this was the estate of a decedent.

Neil & Clark, for appellee.

In a suit by the representatives of an estate, a defendant is incompetent to testify as to a contract between himself and the decedent. Otey v. McAfee, 38 Miss. 348; Boylan v. Holt, 45 Miss. 277.

Then for stronger reasoning, a plaintiff could not be heard in a suit instituted by her, involving a part of the estate of a deceased person, to testify as to a contract between herself and the deceased party. It is generally held that the term estate is used in a broad sense to signify all of the property of every kind or character which a decedent leaves at his death and that any right asserted against this property, which accrued to a party by virtue of dealings between him and the deceased person cannot be established by evidence of the living party. Jacks v. Bridewell, 51 Miss. 881.

In the case of Witherspoon v. Blewett, 47 Miss. 570, relied on by attorneys for appellant, on this principal the court says: "The manifest reason for the exclusion of such witness is to shut out ex parte evidence touching matters and transactions which transpired in the lifetime of the deceased, after death has sealed the lips of one of the parties, so that his version and explanations and statements cannot be heard. If the suit be for a tort or a contract done or made in the lifetime of the intestate, the survivor is incompetent to prove the one or the other against the estate."

The above quotations are embraced in the decision of the court to explain the true principles governing testimony of claimant to assets of an estate. The facts, however, in the case cited did not come or did not bring the case within the general rules as set out.

It is true that the cotton raised by Amanda Thompson, appellant in the instant case, was not picked until after the death of Andrew Johnson; yet, if appellant stands on the theory that she entered into a contract with Andrew Johnson, deceased she must prove this contract by other testimony than her own, and any evidence given by appellant as to a share crop contract existing between her and the deceased, Andrew Johnson, during his lifetime, as a basis for her claim is...