Moore v. Walker

Decision Date19 December 1899
PartiesMOORE ET AL. v. WALKER.
CourtAlabama Supreme Court

Appeal from circuit court, Cherokee county; J. A. Bilbro, Judge.

Action by Chessie Walker against S.D. Moore and others. From a judgment for plaintiff, defendants appeal. Reversed.

Mrs Alice McBee was the mother of the plaintiff below, Mrs Chessie Walker. Mrs. McBee died in the year 1885, whether with or without a will does not appear, and it does not appear any administration was ever taken on her estate. She left surviving her a husband, W. J. McBee, and two minor children-the plaintiff and a younger daughter named Pearl. The piano in question always remained in the possession of the family, and so far as appears was never in the possession and control of the plaintiff. Mrs. McBee died in Tennessee to which state the family had moved from Alabama, carrying the piano with them, and after her death, Mr. McBee brought his children to Ft. Payne in this state, and brought the instrument with them, where the plaintiff used it in practice when taking music lessons. In 1890, Mr. McBee removed to Center, Ala., and brought his two children-the plaintiff and her sister-and the piano with him. He testified, and there is no evidence to the contrary, that he had the instrument in his possession and control, ever since 1880, when it was purchased, up to the commencement of this suit. About two years before suit brought, as appears, he moved out of Center some two miles into the country, and left the piano in charge of Dr. and Mrs. Weaver. The Weavers moved from town also, and defendants, S.D. Moore and wife, moved into the house occupied by Dr. Weaver and wife; and Mr. McBee, as he swears permitted the piano still to remain in the same house in charge of defendants. He also testified that plaintiff never did assert any claim to the instrument until this suit was brought. William Walker, the husband of plaintiff, testified that neither he nor plaintiff were ever in possession of the piano, and before the bringing of this suit, he demanded its possession from defendants, who refused to deliver it to him.

The plaintiff testified, that her mother bought the piano 18 or 19 years ago, when plaintiff was an infant, 4 or 5 years of age; that her mother immediately gave the piano to her; that she gave it to her in Center, Ala., and afterwards, gave it to her a second time in Tennessee, to which state the family had moved; that at the time it was bought, her mother said she bought it for plaintiff and intended plaintiff to have it, and this was all she said about it, and that in Tennessee, her mother just said the piano was plaintiff's, and she wanted plaintiff to have it when she died; that this was all that was ever said or done; and that no one was present at either time when her mother gave the instrument to her. She further testified, that she was at the trial 22 years old; that she was at the time of said alleged gift living with her father and mother and continued to live with them and her sister, Pearl, up to the death of her mother in 1885; that after her death, plaintiff was sent to Ft. Payne to her aunt, and the piano was sent there for her to practice her music lessons on; that the family moved back to Center in 1890, and the instrument was brought there and has ever since remained in the possession and control of her father, and she never did make any demand of him for the possession of the same.

To the evidence of this witness in respect to the giving of the piano to her by her mother in Alabama and Tennessee, and all ther occurred between them in respect thereto, the defendants severally objected at the times the same was offered, and after it was admitted in evidence, they moved to exclude it by their several motions, on the grounds in each instance, that said evidence was illegal, irrelevant and incompetent, and on the ground, specially, that the witness, having a pecuniary interest in the result of the suit, was incompetent to testify against defendants as to any transaction with or statement by her deceased mother, whose estate was interested in the result of the suit. The court in each instance overruled the objections, allowed the evidence and refused to exclude the same, to which rulings defendants excepted.

The evidence on the part of the plaintiff tended to show that her mother bought and paid for the piano with her own money in the year 1880 or 1881; and that on the part of defendants, that plaintiff's father bought and paid for it at that time with his own money.

There were other rulings of the trial court to which exceptions were reserved, but the facts pertaining to the only ruling reviewed on the...

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