Woods v. Sturges

• Citation: 77 So. 186,116 Miss. 412
• Decision Date: 07 January 1918
• Docket Number: 19745
• Court: United States State Supreme Court of Mississippi
• Parties: WOODS v. STURGES ET AL

77 So. 186

116 Miss. 412

WOODS v. STURGES ET AL

No. 19745

Supreme Court of Mississippi

January 7, 1918

Division A

APPEAL from the chancery court of Lauderdale county, HON. G. C TANN, Chancellor.

Bill by R. W. Sturges and another, executor of the estate of Theodore Sturges, deceased, against H. J. Woods, to cancel a promissory note. From a decree for plaintiff, defendant appeals.

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

Decree affirmed.

F. V Brahan, for appellant.

Notes the payment of which are contingent on the termination of a life, have been held to import a consideration, where this was questioned. Cases involving this class are here included as having weight in determining the negotiability of such notes, although it was not discussed. One feature of negotiability is that the paper imports a consideration. Safford v. Graves, 56 Ill.App. 499; Shaw v. Camp, 61 Ill.App. 62, 160 Ill. 425, 43 N.E. 608; Hathway v. Roll. 81 Ind. 567; In re Simmons, 48 Misc. 484, 96 N.Y.S. 1103; Root v. Strong, 77 Hun. 14, 28 N.Y.S. 273; Giddings v. Giddings, 51 Vt. 233, 31 Am. Rep. 682; Yarwood v. Trusts & Guarantee Co., 94 A.D. 47, 87 N.Y.S. 947; Banker v. Coons, 40 A.D. 573, 58 N.Y.S. 47.

It may be of interest to group other cases, where similar notes were held valid, but which do not pass on the question of negotiability of the instrument, because this was not raised in the issue in the cases. Carrigus v. Home Frontier & Foreign Missionary Soc., 3 Ind.App. 91, 50 Am. St. Rep. 262, 28 N.E. 1009; Putnam v. Lincoln Safe Deposit Co., 191 N.Y. 166, 83 N.E. 789; Carnwright v. Gray, 127 N.Y. 99, 12 L. R. A. 845, 24 Am. St. Rep. 425, 27 N.E. 835; Wolfe v. Wilsey, 2 Ind.App. 549, 28 N.E. 1004; Maze v. Baird, 89 Mo.App. 352; Murray v. Cazier, 23 Ind.App 600, 53 N.E. 476, 55 N.E. 880; R. E. Todd, 47 Misc. 35, 95 N.Y.S. 211, a note; Barnett v. Franklin College, 10 Ind.App. 103, 37 N.E. 427; Robinson v. Foust, 11 Ind.App. 189, 99 St. Rep. 269, 68 N.E. 182; Huguley v. Lanier 86 Ga. 640, 22 Am. St. Rep. 487, 12 S.E. 922; Randall v. Grant, 59 A.D. 485, 69 N.Y.S. 221; Carter v. King, 11 Rich. L. 131; Hamilton v. Hamilton, 127, App.Div. 871, 112 N.Y.S. 10; Alexander v. Follet, 5 N.H. 499.

S. R. Bourdeaux and A. S. Bozeman, for appellee.

The appellant in this case is not a legatee because he is not mentioned in the will. He is not a creditor because he admits that the deceased owed him nothing. He does not pretend to be anything but a donee of the deceased. His pretended gift was not of any specific property, but merely an executory promise to give. The last will and testament as executed is effective and since the death of Mr. Sturges, is irrevocable. As long as this will stands unimpeached, it effectively disposes of Mr. Sturges' property and we repeat that the appellant is not named therein.

With all the respect to learned and eminent counsel on the other side, we submit that the one and only question involved in this case is whether or not the promissory note of a donor is the subject of a gift that can be enforced by the donee against the donor, or against his estate after his death, and we further confidently submit that this one and only question has been settled beyond all peradventure or doubt. See 3 R. C. L., page 937, sec. 133, and numerous authorities therein cited; see 20 Cyc. 1211 and 1240, and numerous cases therein cited; see 14 American and English Encyclopedia of Law (2 Ed.), pages 1030 and 1063 and numerous cases therein cited; see Sullivan v. Sullivan, 92 S.W. 966, 7 L. R. A. (N. S.) 156 and copious note thereunder.

There are so many cases cited to this point that we will not further burden this brief by citing them. Every set of selected cases has so called leading cases to this point with copious notes. The case above cited, Sullivan v. Sullivan, is one of the cases. We respectfully and confidently submit that a close scrutiny and careful analysis of all the reported cases on this point shows that there is no modern authority which takes the contrary view.

Construing this record and all reasonable inferences therefrom in its most favorable aspect for the appellant, the most that can be said for him is that Mr. Sturges promised to make him a gift of five thousand dollars in so far as the obligation of the promise is concerned, this note was no more obligatory than a mere oral promise by Sturges. Sturges did not make a voluntary conveyance to Woods of certain lands. Sturges did not transfer to Woods stock or bonds. Sturges did not deliver to Woods any money. Sturges did not give or deliver to Woods any property of any kind whatsoever. To constitute a gift there must necessarily be a subject of the gift. Woods has absolutely no claim to any specific property in the hands of the executors. He does not say that Mr. Sturges has given anything, but merely that he promised to give him something.

Under the solemnities of the law, by last will and testament, Sturges actually and effectively gave all the property that he died seized and possessed of to persons other than Woods. The gifts by Sturges to the devisees under the will are executed and irrevocable. Executed gifts take precedence over executory promises to give. As long as the integrity of the last will and testament is not impeached, the right, title and interest of the devisees thereunder in and to the property that Sturges died seized and possessed of cannot be defeated, or in any wise affected, except by the just claims of creditors. To enforce Sturges' alleged executory promises to Woods would necessarily, to that extent, nullify the will and thwart the executed intentions of Sturges, expressed in a way sanctioned by law.

OPINION

STEVENS, J.

This appeal presents for decision the validity of a promissory note in the sum of five thousand dollars, executed by one Theodore Sturges in his lifetime, payable to appellant, H. J Woods, upon demand. Appellant married the daughter of Theodore Sturges, but the daughter predeceased her father, who, in disposing of his estate, left a valid last will and testament which has been duly probated, and by which he devises and bequeaths his entire estate to his three living children and two grandchildren. His son, R. W. Sturges, and R. M. Bourdeaux, appellees herein, were appointed executors. The executors duly qualified, and as such instituted this suit in the chancery court of Lauderdale county, praying the cancellation and delivery up of the promissory note held by Mr. Woods. The bill charges that the note was executed without consideration, and evidences an unexecuted gift for five thousand dollars. Conceding for the purpose of this statement the competency of Mr. Woods as a witness, it appears from the testimony taken before the chancellor that the testator, Theodore Sturges, many years ago stated to Mr. Woods that he (Sturges) desired to make Woods a gift, but in doing so he preferred not to mention or provide for the gift in his will, and requested Mr. Woods to consult an attorney to determine whether the gift could be made in the form of a promissory note. It appears from Mr. Woods' testimony that he then accepted the note as a gift. The original note was executed about 1909, and in 1915 the testator executed and delivered a renewal note payable upon demand. The renewal note was executed in January,...