Medders v. Ryle, 54281

• Decision Date: 05 September 1984
• Docket Number: No. 54281,54281
• Citation: Medders v. Ryle, 458 So.2d 685 (Miss. 1984)
• Parties: Hugh MEDDERS, Executor, Estate of Yewing Winon Medders, Deceased v. Betty RYLE, Executrix, Estate of Mary Davis Medders, Deceased.
• Court: Mississippi Supreme Court

Page 685

458 So.2d 685

Hugh MEDDERS, Executor, Estate of Yewing Winon Medders, Deceased v. Betty RYLE, Executrix, Estate of Mary Davis Medders, Deceased.

No. 54281.

Supreme Court of Mississippi.

Sept. 5, 1984.

Rehearing Denied Nov. 14, 1984.

Charles C. Jacobs, Jr., Lindsey C. Meador, Jacobs, Griffith, Pearson, Eddins & Povall, Cleveland, for appellant.

William Cliff Heaton, Neblett, Bobo & Chapman, Shelby, for appellee.

Before PATTERSON, C.J., and DAN M. LEE and PRATHER, JJ.

PRATHER, Justice, for the Court:

This appeal addresses the competency of evidence under the "Deadman's Statute" and sufficiency of proof required to establish a resulting trust. The suit arose within the administration of the estate of Yewing Winon Medders, deceased, when notice of the filing of heirship determination was given to the deceased's first wife, Mary Davis Medders and the five children of their marriage. The Chancery Court of Bolivar County held that a resulting trust arose against the proceeds of sale of forty acres of land titled to the decedent and sold by him nine months prior to death. From this decree the Y.W. Medders Estate appeals. The first wife, Mary Davis Medders, sought allegedly unpaid alimony due her prior to the decedent's death, and from a denial of that claim, she cross-appeals.

The Executor of Yewing Winon Medders Estate appeals and assigns as error:

(1) The competency of testimony by Mary Davis Medders in violation of the Dead Man's Statute;

(2) The ruling of the trial court that Mary Davis Medders was entitled to a one-half interest in the homeplace on the theory of a resulting trust arising out of the 1939 purchase of the property;

(3) The ruling of the trial court that Mary Davis Medders was entitled to a one-half interest in the homeplace on the theory of an equitable estoppel arising out of the 1946 divorce decree; and

(4) The failure of the trial court to hold that Mary Davis Medders was barred by the doctrine of laches from asserting a claim for an equitable one-half interest in the homeplace.

Mary Davis Medders, as cross-appellant, assigns as error:

(5) The ruling of the trial court that Mary Davis Medders was estopped to raise the issue of unpaid alimony by the decedent, Y.W. Medders.

I.

In 1922, Yewing Winon Medders married his first wife, Mary Davis Medders. Thereafter, on June 30, 1939, W.M. Merritt and Lottie W. Merritt conveyed to Yewing Medders by warranty deed 80 acres of Bolivar County farmland for $6,000.00. Simultaneously to this purchase, Yewing and Mary signed a Farm Security Administration mortgage for $6,705.00 secured by the eighty acres. The record is silent as to who signed the promissory note. Yewing and Mary made their home on the property, farmed the land and reared their five children.

In 1946 Mary was awarded a divorce from Yewing on the ground of habitual cruel and inhuman treatment. The divorce decree stated that Mary and Yewing were each the owners of an undivided one-half interest in the eighty acre homeplace. The decree provided that Yewing farm the land, but support Mary by dividing the proceeds of the farm profits from this land with Mary in such manner as the parties "may mutually agree upon."

Two weeks after the divorce, Yewing married his second wife, Gladys. Yewing provided Mary with a house in Boyle, Mississippi. Yewing paid the utilities, repairs and insurance on this house, purchased clothing for the children and gave Mary $25.00 per month which he later raised to $40.00 per month.

Mary Medders now claims that the divorce was actually arranged by her husband and his attorney. Her understanding at the time of the divorce was that she would have a one-half interest in the eighty acre homeplace.

In 1969 Yewing executed his last will and testament, devising his ex-wife Mary a life estate in the house and lot in Boyle, with the remainder to descend upon her death to Yewing's grandson. The will left his widow Gladys a life estate in all real property, the remainder to descend upon her death to Yewing's five children of his first marriage. All of Yewing's personal property was bequeathed to Gladys.

On January 2, 1978, Yewing conveyed all his real property to his brother, Hugh Medders, and his brother's wife, Grace for approximately $200,000.00. Yewing and Gladys moved to Cleveland, and on October 19, 1978 Yewing Medders died.

Y.W. Medder's brother, Hugh Medders, was named executor and probated the will. Following the executor's petition for partial disbursement of assets and for a determination of heirship, Mary Medders and four of the five children filed an answer and cross-bill in which they asserted an interest under the will in the eighty acre homeplace conveyed by Yewing to his brother prior to his death. Appellees/cross-appellants further alleged that by virtue of the 1946 divorce decree Yewing was without authority to convey the eighty acres. The appellees sought a lien against the proceeds of the sale of the property.

The chancellor found no evidence of a confidential relationship, undue influence by Hugh Medders or mental incompetency on the part of Yewing at the time of the sale and upheld the decedent's sale of his property. Further, the Court held Mary was estopped to seek unpaid alimony. However, the court found that Mary was entitled to an equitable one-half interest in the eighty acre homeplace on a theory of resulting trust or, in the alternative, the theory of equitable estoppel.

Mary David Medders died on May 28, 1982 subsequent to the hearing before the chancery court. The suit was revived by her executrix, Betty Ryle.

II.

The first assignment of error is the trial court's admission of Mary Medders' testimony. Appellant contends that the testimony was incompetent under Mississippi Code Annotated section 13-1-7 (1972), the Dead Man's Statute, which prohibits as being incompetent testimony by a witness to establish his or her own claim against the estate of a deceased person which originated during the lifetime of the deceased.

Both parties to this controversy admit the incompetency of testimony of one seeking to establish his or her own claim against the estate of a deceased person under the "Deadman's Statute" which in pertinent part states:

A person shall not testify as a witness to establish [her] own claim ... against the estate of a deceased person, which originated during the lifetime of such deceased person....

Miss.Code Ann. Sec. 13-1-7 (1972). Our cases interpreting this statute and its applicability to the competency of persons affected by the statute are legend. In Re Collier, 381 So.2d 1338 (Miss.1980) and Bourn v. Bourn, 375 So.2d 421 (Miss.1979) are two of our more recent cases interpretating this provision.

Additionally, we have recognized that there can be a waiver of the incompetency of a witness. Birchett v. Hundermark, 145 Miss. 683, 110 So. 237 (1926) (waiver of incompetency by introducing and examining claimant as witness.) Coney v. Coney, 249 Miss. 561, 163 So.2d 692 (1964) (examination of incompetent witness operates as a waiver of incompetency of subsequently offered testimony of other witnesses as to matters testified to by the first witness.)

However, the question presented here is whether the objection voiced by the appellant's attorney was specific enough to apprise the court of the basis of the objection.

The appellee argues that any objection to the testimony was waived by failure to object on the specific basis of the statute. The objection to the testimony occurred as follows:

Q. Now, Mrs. Medders, do you recall approximately when the divorce was granted between you and Y.W. Medders?

A. In '48.

Q. Well, I think the record would reflect....

A. '47.

Q. All right, in or around 1946 I believe the final decree would show us, okay. Do you know who served as the lawyer back then?

A. Shands.

Q. Now was he your regular lawyer?

A. No, I didn't have no lawyer.

Q. And between you and Y.W. Medders which one of you wanted the divorce?

A. He did.

Q. And when you went to the lawyer's office what did you find there?

A. The papers already ready.

Q. All right.

A. The divorce papers was already ready.

Q. Had you gone up there before you went that first time?

A. No.

Q. And how many times did you even see the lawyer?

A. One time.

BY MR. WYNNE: No, your Honor, I'm going to object. I think this is all self-serving.

BY THE COURT: I don't believe that's any valid objection to it. I would overruled the objection.

Following the objection, Mary testified at length about the circumstances surrounding the divorce and the limited support she received afterwards.

Appellee relies upon Fant v. Fant, 173 Miss. 472, 162 So. 159 (1935), contending that Yewing's estate waived any objection to the competency of Mary Medders by failing to waive answer under oath. In Fant, however, the waiver was applied only to allow admission of the sworn answer as evidence. 162 So.2d at 161. Research discloses no case in which failure to waive answer under oath has been held to permit an otherwise incompetent witness to testify in open court.

The objection by counsel for appellant at trial did, in fact, focus upon the matter which is now urged--that the testimony of Mary Davis Medders was incompetent as being in violation of Miss.Code Ann. Sec. 13-1-7 (1972), the Deadman's Statute. Appellant stated that "this is all self-serving", to which the Court replied, "I don't believe that's any valid objection to it."

The rationale underlying the Deadman's Statute is that self-interested testimony should not be permitted to establish a claim against one whose lips have been sealed by death. Poole v. McCarty, 240 Miss. 341, 127 So.2d 398 (1961). The objection that Mary Davis Medders' testimony was "self-serving" focused on the very basis of the prohibition.

We conclude that permitting the claimant, Mary Davis Medders to testify to establish her own claim against the Estate of Yewing Winon Medders which originated during the...