Yates' Estate v. Alabama-Mississippi Conference Ass'n of Seventh-Day Adventists, Inc, 32844

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: McGehee, J.
• Citation: 179 Miss. 642,176 So. 534
• Parties: YATES' ESTATE v. ALABAMA-MISSISSIPPI CONFERENCE ASS'N OF SEVENTH-DAY ADVENTISTS, INC
• Docket Number: 32844
• Decision Date: 25 October 1937

176 So. 534

179 Miss. 642

YATES' ESTATE
v.
ALABAMA-MISSISSIPPI CONFERENCE ASS'N OF SEVENTH-DAY ADVENTISTS, INC

No. 32844

Supreme Court of Mississippi

October 25, 1937

Division A

1. GIFTS.

The act of decedent in leaving money with assistant bank cashier to be sent by assistant cashier to organization as a gift from decedent in event of her death did not effect valid gift, because of lack of delivery, where assistant cashier placed money to credit of decedent at bank, where it could have been withdrawn at any time by decedent, without liability on part of bank to organization.

2. GIFTS.

One of essentials of valid "gift causa mortis," as well as of "gift inter vivos," is that the property must be delivered in such manner that donor retains no control or dominion thereover.

[179 Miss. 643]

3. EXECUTORS AND ADMMINISTRATIONS.

A gift causa mortis otherwise valid is ineffective where it is needed for paying debts of donor's estate.

HON. R. W. CUTRER, Chancellor.

APPEAL from the chancery court of Wilkinson county HON. R. W. CUTRER, Chancellor.

Proceeding by the Alabama-Mississippi Conference Association of Seventh-Day Adventists, Inc., against the Estate of Annie E. Yates, deceased, P. Yates, administrator. From an adverse decree, defendant appeals. Reversed and rendered.

Reversed, and decree here for appellant.

W. F. Tucker, of Woodville, for appellant.

The court erred in admitting and considering the unsigned statement of appellee's probated claim against the estate, "Exhibit No. 3," over the objection of the appellant.

Section 1671, Code of 1930, Chapter 304, Laws of 1934.

This court held in Bankstone v. Coopwood, 99 Miss. 511, 55 So. 48, that an itemized account is sufficiently signed when creditor signs the affidavit attached to the account. This is a sound decision.

The statement probated does not state any claim against the deceased; it says that the one hundred and sixty dollars was deposited by the deceased with Miss "Annie" Miller and was by Miss Miller to be sent to the creditor on the death of Mrs. Yates, that said amount was in the hands of Miss Miller at the time of the death of the deceased, that said amount was a gift by the deceased to the creditor and that said amount is the property of said church. This is a good unsigned statement of a claim against Miss Annie Miller, but the statement fails to state how the money got out of the hands of Miss Annie Miller and into the hands of the administrator of the estate of Mrs. Annie E. Yates, deceased. The statement says that the said money was in the hands of Miss Miller on the death of Mrs. Yates and [179 Miss. 644] the statement fails to show that the said money came into the hands of the administrator of the estate of Mrs. Yates. The creditor here files an unsigned statement against Miss Annie Miller, who according to the statement still has the money in hand and still refuses to give same to creditor. The affidavit avers the annexed claim is against the estate of Annie E. Yates for one hundred and sixty dollars, but the annexed statement in no way connects the estate of Mrs. Yates or the administrator of said estate with having or possessing said money, or liable for same.

The said probated statement or claim fails to show that the estate of Mrs. Annie E. Yates is liable to the appellee for the one hundred and sixty dollars, the amount probated and allowed by the clerk against the said estate.

Wilson v. Yandall, 174 Miss. 713, 165 So. 430.

This court has repeatedly held that said Section 1671, Code of 1930, should be strictly construed against the creditor and that the provisions of said section are mandatory.

McWhorter v. Donald, 39 Miss. 779; Cheairs v. Cheairs, 81 Miss. 662, 33 So. 414; Walker v. Nelson, 87 Miss. 268, 39 So. 809; Saunders v. Stephenson, 94 Miss. 676, 47 So. 783; Lehman v. Power, 95 Miss. 446, 49 So. 622; McMahan v. Foy, 104 Miss. 309, 61 So. 421; Stevens v. Dunlap Mercantile Co., 108 Miss. 690, 67 So. 160; Persons v. Griffin, 112 Miss. 643, 73 So. 624; Levy v. Bank & Trust Co., 124 Miss. 325, 86 So. 907; Jennings v. Lowery & Berry, 147 Miss. 673, 112 So. 692; Wilson v. Yandell, 174 Miss. 713.

The written instruction, Exhibit "A," if anything, is an instrument purporting to be a donation of an unmentioned sum of money to appellee. This instrument appears to be a secret codicil to a will then in existence.

It seems from this instrument that some money, amount not named, at some time, no date mentioned, [179 Miss. 645] was given by some person, instrument bears no name or signature, to Miss Miller to send the seventh day conference, Meridian, after the death of the person writing the instrument. There must have been, when the instrument was written, a will of this person and donor in existence, for the donor says "I do not want it in the will," the money was to be sent to the creditor if the donor died.

This instrument donating an unknown sum of money is the basis of appellee's claim against the appellant, but it carries no name, except Miss Miller's, no amount of money and no date is mentioned in said instrument.

Wilson v. Yandell, 174 Miss. 713, 165 So. 430.

In the case at bar the statements emanating from the brain of the appellee and probated and allowed for one hundred and sixty dollars is a claim against Miss Miller and not the said estate; the statement by the donor contains so many elements of uncertainty that, if relied upon by the court, will be taking money from the appellant on a probability and not on the preponderance of evidence, as required by said statute. But, if the money referred to in the said instrument...