Wilson v. Bridgforth

• Decision Date: 30 November 1914
• Docket Number: 16548
• Citation: 108 Miss. 199,66 So. 524
• Court: Mississippi Supreme Court
• Parties: WILSON et AL. v. BRIDGFORTH

66 So. 524

108 Miss. 199

WILSON et AL. v. BRIDGFORTH

No. 16548

Supreme Court of Mississippi

November 30, 1914

APPEAL from the chancery court of DeSoto county. HON. D. M KIMBROUGH, Chancellor.

Suit by David O. Bridgforth against D. E. Wilson, executors, and others. From a decree for plaintiff, defendant appeals.

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

Reversed and remanded.

Cutrer & Johnston, for appellant.

Farley & Lauderdale and Julian C. Wilson, for appellee.

OPINION

SMITH, C. J.

Mr. T O. Bridgforth, who during his lifetime was the owner of a large estate consisting of both real and personal property situated in the states of Mississippi, Alabama, and Tennessee, died in the year 1909. By his will he directed that his executors should convert all of his property, both real and personal, that he had not conveyed or disposed of "by will, deed of gift, or otherwise, at or prior to" his death, into cash, and to divide the same among his children and certain of his grandchildren; appellee being one of the latter, designating specifically the share thereof each was to receive. Bridgforth appointed, as the executors of his will, his two sons-in-law, W. B. Gray and D. E. Wilson, and Oliver Bridgforth, one of his grandsons. After Bridgforth's death, appellant D. E. Wilson, one of the executors, delivered to the grantees therein five deeds which had been signed and acknowledged by Mr. Bridgforth during his lifetime. One of these deeds conveyed a life estate in certain lands to appellee, with remainder to the issue of his body, and in default thereof to "the children" of the grantor. One conveyed certain land in fee simple to the widow and children of W. B. Bridgforth, a deceased son of the grantor. One, after reserving a life estate to the grantor, conveyed certain land to Mrs. Elizabeth Dickens, with remainder over, in event "she should die without bodily issue, . . . to the other children of" the grantor. One conveyed certain land in fee simple to Mrs. Mariah Wilson. One of them conveyed certain land in fee simple to Mrs. Nellie Gray. Mrs. Dickens, Mrs. Wilson, and Mrs. Gray were daughters of the grantor. The grantees in these deeds are also beneficiaries under the will.

Appellee declined to accept the life estate conveyed by the deed to him, and filed his bill in the court below for the purpose among other things, of ascertaining what the estate was of which T. O. Bridgforth died seised and possessed, and of having it sold by the executors, and the proceeds thereof disposed of by them in accordance with the terms of the will; the executors themselves having, on request, declined to file such a bill. The bill alleged, among other things, that these deeds never became operative, for the reason that they were never intended to be, and in fact were not, delivered by the grantor, and that therefore the property therein described was a part of his estate at the time of his death. The court below so held, entered a decree accordingly; and upon application of the appellants, defendants in the court below, an appeal was granted to this court to settle the principles of the case.

The sole question presented to us by the record for decision is: Was there a valid delivery of the deeds hereinbefore referred to? An affirmative answer will require a reversal of the decree granted in the court below, and a negative answer will require an affirmance thereof.

It appears from the evidence that in August, 1909, Mr. T. O. Bridgforth, who was then about eighty-three years old, decided to arrange for the distribution of his property after his death and to that end employed an attorney by the name of Stokes, who prepared for him a will and the deeds here in controversy. These deeds and the will seem to have been drawn up in the office of D. E. Wilson. At all events they were in his office when Stokes and Bridgforth concluded their labors in the matter. This office was in the same building as that occupied by W. B. Gray Company, of which C. A. Worthy was a member, was separated only by a wall from the office of this company, in which wall there was a door, by means of which access from one office to the other was had. In this company's office there was an iron safe which either belonged to, or was under the control of, Mr. Worthy. Bridgforth occasionally left with Worthy private papers belonging to him, to be kept in this safe. Wilson was also accustomed to keep his private papers in this safe; he having a separate drawer for that purpose, to which he alone had the key. When Stokes and Bridgforth concluded their labors they, together with Wilson, went into Mr. Worthy's office. Up to this point it is not claimed that there is any material conflict in the testimony. According to Worthy, who was introduced in behalf of appellees, a sealed envelope, with "J. O. Bridgforth papers." or "J. O. Bridgforth's papers" written thereon, was handed to him by either Bridgforth or Wilson, but by which one he could not remember, with the request that he keep it until called for by whichever one of them handed it to him. This envelops contained these deeds, Bridgforth's will, and a paper, styled "'Statement of Advancements Made," and was placed by Worthy in the safe, not in the drawer where Wilson kept his papers, but in a different drawer, the key to which was in Worthy's possession. Mr. Bridgforth lived several months after this, during all of which time these papers remained in the possession of Worthy. After Bridgforth's death, they were called for and delivered to Wilson. Worthy admitted that shortly after Bridgforth's death, and after the delivery by him of the papers to Wilson, he (Worthy) told appellee and Mr. N.E. Wilroy that the papers had been left with him by Mr. Bridgforth, with the request that he keep them until called for by him. Appellee himself and Wilroy also testified in behalf of appellee to this statement made them by Worthy, going somewhat more in detail as to what Worthy said than Worthy himself did. This evidence was practically all that was offered in behalf of appellee, necessary to be considered in this connection.

There appears in the record a motion to suppress appellee's and Wilroy's testimony. A memorandum on this motion indicates that it was never filed, and we fail to find in the record any order disposing of it. We are not, therefore, called upon to pass on the competency of the evidence thus objected to.

Worthy further testified that at the time he made this statement to these witnesses he thought it was true, but that, since thinking the matter over and discussing it with other parties he had become doubtful about it, and could not say whether the papers were given to him to be kept for Bridgforth or for Wilson. Had Worthy testified that he could not recall definitely for whom he was holding the papers, but at the time he made the statements to appellee and Wilroy he did know, and that whatever he then said was true, such evidence would have been, assuming its competency, of some value; but the evidence here falls far short of that, and proves nothing but that Worthy's recollection of the matter was so imperfect that his testimony could not be safely relied upon.

Appellant D. E. Wilson was introduced as a witness and testified substantially as follows: That, when Stokes and Bridgforth concluded their labors, they were in his (Wilson's) office, and that Bridgforth then handed him (Wilson) "a bundle of loose papers," and stated either, "Here are some papers I want you to keep for me and give to my children after my death;" or "Here are some papers I want you to keep and give my children after my death." He first testified that the first of these statements was made by Bridgforth, and later that the second statement was the one made by him, and finally that he could not say which of the statements was the one made; that is, whether he used the words "for me" contained in the first statement, but omitted from the second. He (Wilson) took this bundle of papers, walked into Worthy's office, and asked him for an envelope. Worthy not having the envelope, he walked back into his own office, put the papers in an envelope, sealed it, wrote on them "J. O. Bridgforth's papers," carried them back into Worthy's office, handed them to Worthy, and asked him to put them in the safe and keep them for him (Wilson). Bridgforth and Stokes accompanied him (Wilson) into Worthy's office, and in the language of the witness: "At this period Mr. Bridgforth stated to Mr. Worthy: "These are some papers I am giving to Wilson to keep and give to my children after my death.' Upon correction by Mr. Stokes, he called the papers 'deeds.' Mr. Worthy then took the papers and placed them in his safe."

Wilson seems not to have been definitely advised by Stokes and Bridgforth of the disposition that Bridgforth was making of his estate by these papers, but he knew generally what they were doing, and that Mr. Bridgforth was arranging for the division of his estate among his children and grandchildren. Bridgforth did not, thereafter, call upon Wilson for them nor was there any further conversation between them relative thereto. They remained in Worthy's keeping until after Bridgforth's death, and were then, as hereinbefore stated, delivered by Worthy to Wilson upon being called for by him. During his examination Wilson was asked this question: "For whom were you keeping these papers during Mr. Bridgforth's lifetime?" And his answer was: "I will be bound to answer that I thought I was keeping these papers for Mr. Bridgforth." Again he said "that Mr. Bridgforth could have gotten these papers from me if he had demanded them." He was then asked whether he "felt under any obligations to return the papers to him (meaning Bridgforth) upon his...