Nubby v. Scott

• Decision Date: 11 September 1939
• Docket Number: 33547
• Court: Mississippi Supreme Court
• Parties: NUBBY et al. v. SCOTT et al

190 So. 911

186 Miss. 309

NUBBY et al. v. SCOTT et al

No. 33547

Supreme Court of Mississippi, Division A

September 11, 1939

Suggestion Of Error Overruled October 23, 1939.

APPEAL from chancery court, of Neshoba county HON. T. P. GUYTON Chancellor.

Suit by Lilly Nubby and another against Lonie Scott and others for a half interest in estate collected by named defendant from her deceased father's estate and the United States Department of Interior. From a decree of dismissal, complainants appeal. Affirmed.

Affirmed.

Thomas E. Rhodes, of Washington, D. C., and Nate S. Williamson and Harold W. Davidson, both of Meridian, for appellants.

Lilly Nubby has a vested interest in one half of the trust estate held by W. W. Pierce under the trust agreement of April 30 1931.

A statement by an owner regarding or affecting his title is admissible not only against himself but also against parties claiming under him.

Levy v Holburg, 71 Miss. 66, 14 So. 537; Walker v. Marseilles, 70 Miss. 283, 12 So. 211; Sharp v. Maxwell, 30 Miss. 589.

Lilly Nubby was the lawful wife of Hickman Willis at the time of his death and the only wife he ever had. In re Estate of Willis, 129 Okla. 155, 265 P. 1064. Open the death of Hickman Willis the title to his entire estate immediately became vested in his lawful heirs, namely, his wife, Lilly Nubby, his legitimate daughter, Lonie Scott, and his illegitimate daughter, Lodie Willis, each being vested with title to a one-third interest in said estate.

67 C. J. 238.

Lilly Nubby is now entitled to recover either under her contract of 1926 with Lonie or under the instrument executed by Lonie on January 17, 1933, or both. The agreement of 1933, is a reassertion and confirmation of the agreement of 1926 and of the verbal understanding between Lilly and Lonie from the time they first heard of Hickman Willis' death that they would divide whatever was recovered by them, or either of them, equally between themselves. The only substantial, difference in principle between the agreement of 1926 and the instrument of 1933 is that the latter instrument may be construed as limiting Lilly's recovery to one-half of the money and property then held (in 1933) by Pierce as trustee, whereas the agreement of 1926 comprehended one-half of all that Lonie recovered.

Sufficient search was made for the lost documents, consisting of the power of attorney from Lilly Nubby to Odio Moore of 1925, and the contract between Lilly Nubby and Lonie Scott executed at the Indian Agency at Philadelphia, Mississippi, in 1926, to justify secondary evidence of the making and the contents of said documents.

8 Encyc. of Evidence, pages 350 and 351; Carter v. Myers, 132 Miss. 698, 95 So. 252; Native Lbr. Co. v. Elmer, 117 Miss. 720, 78 So. 703; Minor v. Tillotson, 7 Pet. 99.

The record in this case shows that Lonie Scott was competent to execute the agreement of 1926, and the instrument of January 19, 1933, and that her signature to said two documents was obtained without fraud or undue influence.

Gillis v. Smith, 114 Miss. 665, 75 So. 451; Creswell v. Creswell, 164 Miss. 871, 144 So. 41; Baum v. Greenwald, 49 So. 836; 18 C. J. 425.

The alleged appointment of W. W. Pierce as guardian of Lonie Scott by the county court of Bryan County, Oklahoma, in February, 1933, is illegal and void and not entitled to full faith and credit in the courts of Mississippi.

Steele v. Steele, 152 Miss. 365, 118 So. 721.

Lonie Scott being the creator of the trust agreement of April 30, 1931, which was created for her benefit, possessed the power to alienate one-half thereof, and the deed of January 19, 1933, is a valid assignment and conveyance to Lilly Nubby.

Brown v. MacGill, 87 Md. 161, 39 A. 613, 39 L.R.A. 806; Scott v. Keane, 87 Md. 709, 40 A. 1070, 42 L.R.A. 359; McIlvane v. Smith, 42 Mo. 45, 97 Am. Dec. 295; Graff v. Bonnett, 31 N.Y. 9, 88 Am. Dec. 236; MacKason's Appeal, 42 Pa. St. 330, 82 Am. Dec. 517; Ghormley v. Smith, 139 Pa. St. 584, 21 A. 135, 23 A. S. R. 215; Nolan v. Nolan, 218 Pa. St. 135, 67 A. 52, 12 L.R.A. (N.S.) 369; Petty v. Moore, 110 Va. 815, 67 S.E. 355; Restatement, Law of Trusts, 386, sec. 156; Helvering v. Hemholz, 296 U.S. 93, 80 L.Ed. 76; Phelps v. Thompson, 198 N.Y.S. 321; 2 Perry on Trusts and Trustees (7 Ed.), sec. 290, pages 1562-1563; Fidelity & Columbia Trust Co. v. Gwynn, 206 Ky. 823, 268 S.W. 537; Stephens v. Mo., 298 Mo. 215; Cole v. Nickel, 43 Nev. 12; Whittemore v. Equitable Trust Co., 162 A.D. 607; Maber v. Hobbs, 2 Younge & C. 327; Rowley v. American Trust Co., 144 Va. 375; First Natl. Bank v. Cash, 220 Ala. 318, 125 So. 319; Boothe v. Cheek, 253 Mo. 119, 161 S.W. 791; Leigh v. Harrison, 69 Miss. 923; Dibrell v. Carlisle, 48 Miss. 691; Merchants National Bank & Trust Co. v. Port Gibson Oil Works, 165 Miss. 314; Baker v. Whiting, 3 Summer 475.

The Chancellor has the power to compel W. W. Pierce, as trustee, to forthwith pay, convey, transfer, assign and deliver unto Lilly Nubby one-half of all of the money and property held by him as trustee for Lonie Scott under the trust agreement of April 30, 1931.

21 C. J. 150, 151; Massie v. Watts, 6 Cranch 148; Nugent & Mcwillie v. Powell, 63 Miss. 99.

The special chancellor committed prejudicial error in overruling the motion of the appellants to amend the amended hill of complaint so as to strike out the allegation that Lonie Scott and Lilly Nubby were "full blood" Choctaw Indians.

Act of Congress of May 27, 1908, c. 199, 35 Stat. 312; Parker v. Richard, 250 U.S. 235; Munich Reinsurance Co. v. First Reinsurance, 6 F.2d 742; Jenkins v. Collard, 145 U.S. 546; Benton Harbor Fuel Co. v. Middle West Coal Co., 271 F. 216; The Kaiser Wilhelm II, 246 F. 786; Morgan's Louisiana T. R. & S. S. Co. v. Isaac Joseph Iron Co., 243 F. 149; Muir v. Louisville & N. R. Co., 247 F. 88; Givens v. Zerbst, 255 U.S. 11; Nishimura Ekin v. U.S. 142 U.S. 651; Riverside Oil Co. v. Hitchcock, 190 U.S. 315.

The chancellor has the power to remove the defendant as trustee as to one-half of the trust property, or as to the whole.

3 Pomeroy's Eq. Jur., page 2419, sec. 1058, page 2427, sec. 1062, page 2455, sec. 1071, page 2503, sec. 1086; May v. May, 165 U.S. 310; Franz v. Buder, 34 F.2d 353; Nutt v. State, 96 Miss. 473.

W. W. Pierce, of Jackson, and Richardson & Sanford, of Philadelphia, for appellees.

Appellant, Lilly Nubby, had no vested interest in the estate of appellee, Lonie Scott, held in trust by appellee, W. W. Pierce, for the use and benefit of the appellee, Lonie Scott, under the trust agreement dated April 30, 1931.

R. R. Co. v. Burke, 53 Miss. 200; Johnson v. State, 154 Miss. 512; Gates v. Seibert, 157 Mo. 254, 57 S.W. 1065; Stewart v. Hirriman, 22 Am. Rep. 408; Clark v. McClearey, 20 Miss. (12 S. & M.) 347; Marshall v. King, 24 Miss. 85; Day v. Madden, 48 P. 1053; Richardson v. Aiken, 87 Ill. 138; Steers v. Kinsey, 68 Ark. 360, 58 S.W. 1050; Coles v. Madison County, 1 Ill. 154, 12 Am. Dec. 161.

The finding of the Chancellor on conflicting evidence is conclusive upon the question that it was not a contract between the appellant, Lilly Nubby, and appellee, Lonie Scott, to divide whatever was received by either. The finding of the trial court is presumed to be correct unless the contrary appears in the record.

Smith v. Berry, 1 S. & M. 321; Effinger v. Richards, 35 Miss. 540; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578.

The evidence being in conflict, there is nothing that will appear contrary to the finding of the Chancellor. The trial court will not be held in error and reversed by this court in a finding on conflicting evidence unless the record clearly shows that his finding was wrong.

Heard v. Collrell, 100 Miss. 42; Lott v. Hull, 104 Miss. 308; Lee v. Wilkerson, 105 Miss. 358; Bland v. Bland, 105 Miss. 478; Grace v. Purce, 127 Miss. 831; Crump v. Tucker, 149 Miss. 711; Gulf Transportation Co. v. Firemens Fund Ins. Co., 121 Miss. 655; Berry v. Mattocks, 156 Miss. 425; Bradley v. Howie, 161 Miss. 346; Cole v. Standard Life Ins. Co., 170 Miss. 330; Mays v. Howie, 98 Miss. 300; Freeman v. Freeman, 107 Miss. 750; Steede v. Ferrer, 150 Miss. 711; Leavenworth v. Hunter, 150 Miss. 750; Stevenson v. Swilley, 156 Miss. 552; Bradbury v. McLendon, 119 Miss. 210; Bacot v. Holloway, 140 Miss. 120; Quine v. Wolcott, 165 Miss. 325; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441; Hibernia Bank & Trust Co. v. Turner, 156 Miss. 842; Pannell v. Glidewell, 142 Miss. 77; Watkins v. Watkins, 142 Miss. 210; Conn v. Conn, 186 So. 646.

The trial court did not commit a prejudicial error against the appellant as to the admissiblity of secondary evidence offered to establish the execution of the alleged instruments marked Exhibits "H" and "J" to the amended bill of complaint.

Appellant failed to prove by competent evidence the alleged contract between the appellant, Lilly Nubby, and appellee, Lonie Scott, and also the alleged power of attorney between the appellant, Lilly Nubby, and appellant, Odie Moore.

Freeland v. McCaleb, 2 How. (3 Miss.) 375; Parr v. Gibbons, 27 Miss. 375; McLeod Lbr. Co. v. Anderson Mercantile Co., 105 Miss. 498; Federal Chemical Co. v. Jennings, 112 Miss. 513, 73 So. 567.

The appellants were not entitled to recover on the alleged contract between Lilly Nubby and Lonie Scott alleged to have been executed at the Indian Agency in 1926(1) because there was no valid consideration therefor, and (2) there was no agreement therein to forbear an appeal in the proceeding to establish the heirs of Hickman Willis, deceased, and the burden of proof rested on appellants.

Presbyterian Board v. Smith, 209 Pa. 361, 58 A. 689; Saunders v. Bank of Mecklinburg, 112 Va. 443, Ann. Cas. 1913B 982; Shupe v. Galbraight, 32 Pa. 10; Clarke v Russell, 3 Watts 213; ...