Whitehead v. Kirk

• Decision Date: 05 May 1913
• Docket Number: 16,203
• Citation: 61 So. 737,104 Miss. 776
• Court: Mississippi Supreme Court
• Parties: MRS. IMOGENE WHITEHEAD ET AL. v. MRS. LULA KIRK

61 So. 737

104 Miss. 776

MRS. IMOGENE WHITEHEAD ET AL. v. MRS. LULA KIRK

No. 16,203

Supreme Court of Mississippi

May 5, 1913

APPEAL from the chancery court of Yazoo county, Hon. G. G. LYELL Chancellor.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Mayes &amp Mayes, Barnett & Perrin and E. L. Brown, for appellants.

In this reply, we shall first reply to the suggestion of error filed by Judge Campbell; afterwards to the others.

Judge J. A. P. Campbell, speaking of this court's decision begins his brief with this observation: "And that it is contrary to general professional understanding in this state I think may be affirmed from the fact that the admission of Mrs. Kirk as a witness was not assigned as error or relied on by counsel who represented appellants in the court below and that the question of competency of such a witness in similar cases was not raised by other eminent lawyers."

This is an unfortunate observation for appellees; if it has any weight at all, it must operate as a boomerang. The "fact" relied on as evidence of the proposition advanced does not exist. The learned counsel is misinformed. First, the position criticised was "relied on by counsel who represented appellants in the court below." The objection was expressly and clearly made, beyond any possibility of misunderstanding, in the court below, and in due time. It was also expressly and clearly assigned in the motion to set aside the verdict, Item 4. Messrs. E. L. Brown and Barnett & Perrin made that motion; and Judge Edward Mayes, in person, made the objection on page 157, supra. This latter fact the record does not affirmatively show; but it is the fact; and the record does affirmatively show that Judge Mayes was present at the trial in the court below, and took part in it. Secondly, this action of the court was assigned for error. The 45th ground of error assigned was that the court erred in overruling the motion for a new trial. This was a sufficient assignment under the practice of this court. Besides all which, it was elaborately presented in our brief, and elaborately discussed in the oral argument; and if this court will examine our original brief, it will find that all of appellant's counsel signed it; and part of the subdivision which deals with this particular topic was prepared by Mr. Brown himself as an addition to what had already been written.

Judge Campbell's brief misquotes the statute. The quotations from the Codes of 1857 and 1871 and of 1880 are correct; but when it is said that such "is the language of the Code of 1906" there is an error. In both the Codes of 1892 and 1906 the language is changed, and the words, "of any amount," are not employed. The language is: "A person shall not testify as a witness to establish his own claim or defence against the estate of a deceased person which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent."

If before the Code of 1892 it could have been argued that the terms of the exception were such as to preserve and enforce the common-law disability only in those cases where the claim in controversy was one capable of statement, as some "amount;" surely, after the elimination of that word from the statute, such argument could no longer be made. The very terms of the statute were, by amendment, made broad enough to cover and include any sort of claim. It had been so decided even under the first form of the statute.

Judge Campbell says "that the decision overturns several decisions of this court, and it is not sustained by one, is, I believe, undoubtedly true." In view of this announcement, we look for some citation to the decisions of this court so rudely dealt with; but in vain. We find nothing but certain statements of general principles, none of which control this case.

It is said that "In an early case on the act of 1857, style not remembered, it was declared by this court that the statute did not disqualify one who was competent by the common law." Grant the proposition; what then? We do not claim such to be the case here. Mrs. Kirk was incompetent by common-law rules; and we say that the statute leaves her so.

It is said that the policy of our legislation has been to sweep away the common-law exclusions, etc. We grant it; but it is also true, and it cannot be denied, that in and by the very legislation which inaugurated and declared that policy, a saving and exception has been always and anxiously made; and the assertion and preservation of that exception has been just as much a part of the larger policy; just as conspicuous a feature, and just as vital. Never has the legislature intended, not for a day, that the removals of exclusions as between the living shall subject the estates of those who are dead, and whose lips are sealed, to be preyed upon by those, or any of those, who survive. We deny emphatically that any such intent was ever to be deduced from the legislation enacted; we deny that there ever was any such "open door" designed.

What policy of the state legislation has been more clear, more studious, and more inflexible, than that which throws every possible safe guard around the estates of the dead? And if the two policies interfere, which in so far as such interference shall exist, must give way and which must prevail? The legislature itself has declared which is the favorite and superior policy; and how can any one assume to say that the policy of protection of such estates, must be narrowed and whittled down by presumptions in favor of the policy about witnesses?

We deny that in this particular category it ever was intended to be a matter of "credibility." How could it be? The lips of the party whose estate is to be charged, are sealed in death. We deny that our decisions warrant any such conclusion. Judge Campbell cites none such. And see where it lands us: for section 2001 of the Code of 1906 (which is in all the Codes) provides that any devise to a subscribing witness shall be void. Here on the very point of establishing a will, a mere devise is nullified by the settled policy of the state, if made to a witness. Is it a question of "credibility?" It is not; the situation is absolutely forbidden, that one shall take a devise, and be a witness. But yet the learned counsel infers, from a general policy about evidence, that in the matter of the complete destruction of a will, the person who is to gain all the estate by such destruction, is qualified to testify, and thereby to establish ownership. The two notions cannot co-exist.

That a state policy should exist since the Code of 1871, for now more than forty years, by which, in order to establish a will, and show the testator's capacity, the witness is disqualified to take even the legacy of a little part; and yet, at the same time, in order to destroy a will, to show the testator's want of capacity, and thereby to capture the entire estate, the spouse surviving is qualified to testify, is a grotesque condition. The legislature could, of course, pass two laws, so discordant; and if so passed, the court would have to enforce them; but, we submit, such a condition of law will not, and cannot, be deduced by the courts through judicial inference or construction. It can only be allowed when it shall be, as it never will be, expressly so written in the statutes.

The proposition so positively advanced, that the policy of our legislature has been continuous and progressive to open wide the door for the admission of the testimony, and that the tendency of our judicial decisions has been in the same direction--we deny to be correct, if applied to this subject-matter.

In other matters it is immaterial, whether correct or not; but as applied to this subject-matter, the tendency has been distinctly otherwise; and the legislature has more and more signified a determination to protect the estates of decedents from all forms of such invasion, from all quarters.

Somewhere in this diversity of view and this confusion, there must lie a line of judicial truth. We think that with considerable labor and much more thought we have searched it out; and our later conclusion confirms the views which we presented to the court in our original brief. That truth has been sometimes obscured and partly hidden by ill-considered expressions of the court in a few of the decisions rendered. But nevertheless it has been there always, is there now; and by no one has the clew to it been more clearly and definitely shown than by Judge Campbell himself, as we shall presently make plain. And we respectfully but firmly deny that there are "several decisions of this court according to which Mrs. Kirk is a competent witness" on this issue; and that is the whole question.

The question of law thus raised by Judge Campbell necessitates a review of this legislation from the beginning. We shall endeavor to work it out to the satisfaction of this court, from the statutes and the decisions; not by our own views.

"Before statutes on the subject, parties to suits were not competent witnesses in their own behalf. With the removal of the incompetency of parties as witnesses for themselves, there was excepted from the cases in which they might testify, all in which a right is asserted against any part of the estate of a deceased person, no matter in whose hands it might be at the time of the controversy, and which 'right' rests upon something occurring in the life time of such deceased person, and having relation to him." Campbell, J., in Jacks v. Bridewell, 51 Miss. 881 and 883.

Let us examine those statutes. Prior to the Code of 1857 it was competent for either party in a justice's court, to prove his claim by his own oath, after making oath that he had no...