In Reedy, et al v. Alexander, 202 Miss. 80, 30 So.2d 599 (1947), a controversy arose over ownership of certain livestock and farm equipment alleged to be a part of the estate of the deceased.Summary of this case from Maxwell v. Yuncker
May 19, 1947. Suggestion of Error Overruled September 22, 1947.
1. EXECUTORS AND ADMINISTRATORS.
Where intestate's daughters filed a petition in the administration of his estate praying that certain property be established as part of the intestate's estate, burden of proof was on daughters to prove that farm equipment and livestock which intestate had listed in bills of sale to widow belonged to intestate at his death.
2. EXECUTORS AND ADMINISTRATORS.
Where intestate's daughters filed a petition in the administration of his estate praying that certain property be established as part of the intestate's estate, and widow set up affirmative matter in her answer with respect to diamond ring and check for oat crop, which she claimed as gifts from intestate, and as to intestate's automobile which she claimed to have acquired by virtue of a trade, widow should have been put to proof to such items.
3. EXECUTORS AND ADMINISTRATORS.
Widow's petition for the proceeds of certain property sold by administratrix, in lieu of the property itself was not a "claim" for payment of a debt out of the general funds of the estate within meaning of statute relating to claims against the estate of deceased persons (Code 1942, sec. 569).
4. EXECUTORS AND ADMINISTRATORS.
The word "claim" as used in statutes relating to claims against estates includes not only debts already due but unmatured debts, but it applies only to specific money demands due or to become due and not to inchoate and contingent claims (Code 1942, sec. 569).
5. EXECUTORS AND ADMINISTRATORS.
Widow's petition for proceeds of certain property sold by administratrix in lieu of the property itself, on ground that the property was hers rather than intestate's property, was not converted into a probatable claim because it had the oath of probate attached to it and the clerk certified that it had been probated, registered and allowed (Code 1942, sec. 569).
6. EXECUTORS AND ADMINISTRATORS.
Widow's petition for the proceeds of certain property sold by the administratrix, in lieu of the property itself, and petition by intestate's daughters praying that such property and other property be established as part of the assets of the intestate's estate, were matters in the course of administration of the intestate's estate and neither required any answer, and therefore failure of daughters to waive oath to widow's answer to their petition, and her oath to it had no weight in chancellor's adjudication of the issues (Code 1942, sec. 1281).
7. EXECUTORS AND ADMINISTRATORS.
Affirmative averments in widow's answer to petition of intestate's daughters praying that certain property claimed by widow be established as part of the assets of the intestate's estate, were not evidence and were required to be proved aliunde the answer.
8. EXECUTORS AND ADMINISTRATORS.
Where intestate's daughters appeared and contested widow's petition for the proceeds of certain property sold by the administratrix, in lieu of the property itself, on ground that the property belonged to the widow, the daughters assumed the burden of proof as to such property.
On petition by intestate's daughters to have certain property established as part of intestate's estate even though it was claimed by intestate's widow as her personal property, daughter was incompetent under the statute to testify as to the physical and mental condition of the intestate during his last illness, since such evidence tended to establish the daughters' claim (Code 1942, sec. 1690).
10. HUSBAND AND WIFE.
Intestate's daughters could not invoke against intestate's widow who claimed certain property as gifts from intestate, statute providing that a transfer or conveyance of goods and chattels, or lands or any lease of lands between husband and wife, shall not be valid against any "third person" unless written, acknowledged, and recorded, since the daughters were not third persons as contemplated by the statute (Code 1942, sec. 455).
APPEAL from the chancery court of Sunflower county. HON. J.L. WILLIAMS, Chancellor.
Ernest Kellner, of Greenville, for appellants.
This Court is precluded by the record as made in the trial court and cannot and will not consider anything not before the trial court as reflected by the record.
It is settled that on the contest of a probated claim the burden of proof is on the claimant to establish the claim.
North v. Lowe, 63 Miss. 31; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; Nicholson v. Dent, Robinson Ward, 189 Miss. 658, 198 So. 552; Wooley v. Wooley, 194 Miss. 751, 12 So.2d 539; Union Planters' Bank Trust Co. v. Rylee, 130 Miss. 892, 94 So. 796.
It is likewise settled that ownership being shown in the donor, the burden of proof is upon the donee to establish the alleged gift by clear and satisfactory proof.
The trial court erred in sustaining the motion of the appellee to require the appellants to assume the burden of proof in this case. By her motion the appellee says that because answer under oath was not waived in the petition of the appellants and her answer was sworn to, the burden of proof as to both issues shifted to the appellants and the trial court so held. That is not the law.
The trial court erred in excluding the books of J.L. Alexander, deceased. The exclusion of this evidence was highly prejudicial to the appellants in their contention that the property, which was sold as property of the estate for the proceeds of which the appellee probated her claim, was the property of the estate and not the property of the appellee.
Mrs. W.E. Reedy, who testified that she knew the physical and mental condition of J.L. Alexander, deceased, during his last illness, was not permitted to testify thereto because her testimony would tend to establish her claim against the estate of a deceased person. All of her testimony was excluded for the same reason. These rulings are contrary to the decisions of this Court and are, therefore, erroneous.
The trial court erred in excluding the evidence introduced by the appellants and in dismissing the appellants' contest. Of course, in considering this motion, it was the duty of the trial court, under the well settled familiar rule, to accept all of the evidence of the appellants as true and to indulge in all reasonable inferences therefrom favorable to the appellants.
In order for a gift to be proved, it must not only appear that the donor intended to make the gift, but consummated it by an actual, constructive, or symbolical delivery of the property to the donee, and mere declarations of the owner that he had made the gift unaccompanied by acts showing delivery of possession, or an absolute parting with all dominion and interest, are not sufficient to render the gift valid.
The trial court erred in not rendering a decree for the appellants. In making this contention I am mindful of the statute, Section 1312, Code of 1942, as construed by this Court in Partee v. Pepple et al., 197 Miss. 486, 20 So.2d 73, providing that where the motion of a defendant to exclude the evidence of a complainant is erroneously sustained, as in this case, on appeal by the complainant, this Court will not render final judgment for the complainant but reverse the case for a new trial. My contention is that the defendant, rather the appellee, having elected to try her case on the erroneous theory that the burden of proof was on the appellants and having elected not to introduce any evidence, was bound by that theory in the trial court and is so bound in this Court. The fact that the trial court concurred in the erroneous theory of the appellee in the trial of her case is of no avail to the appellee. She is not entitled to two bites at the apple. The burden of proof was on her to establish her probated claim, which she did not even introduce in evidence, and the burden of proof was on her to establish the alleged gifts to her by J.L. Alexander, deceased, during his lifetime. She elected not to make any effort to meet that burden of proof. She submitted her case to the trial court on the sworn petition of the appellants, her sworn answer thereto, and the proof introduced by the appellants. The burden of proof being on her, which she failed to meet, it was the duty of the trial court to render a decree for the appellants. On the same record it is the duty of this Court to enter the decree the trial court should have rendered.
The party having the burden of proof in a case will fail in the event no evidence is introduced.
Under the authorities cited under the first assignment of error in this case, the appellee in this case undoubtedly had the burden of proof on both issues raised by the petition. She elected not to introduce any evidence. She is bound by that election. She must fail on both issues raised by the petition.
The case here goes even further. The appellants did not stand on the failure of the appellee to introduce any evidence to meet the burden of proof that was upon her. The appellants offered evidence which completely denies the claims of the appellee.
Federal Land Bank et al v. Morris et al. (Miss.), 11 So.2d 210.
Everett Sanders, of Indianola, for appellee.
The chancellor was correct in requiring appellants to assume the burden of proving the allegations of their petition against Mrs. Alexander.
Stewart v. First National Bank Trust Co., 192 Miss. 355, 5 So.2d 683, 685; In re Lewis' Estate, 194 Miss. 480, 13 So.2d 20; Ellis v. Berry, 145 Miss. 652, 110 So. 211; Code of 1942, Secs. 575, 627; Griffith's Mississippi Chancery Practice, Secs. 573, 590.
No ruling of the chancellor in regard to the evidence constituted reversible error.
Comfort v. Smith, 198 Miss. 152, 21 So.2d 584; McFadden v. Welch, 177 Miss. 451, 170 So. 903; Rollings v. Rosenbaum, 166 Miss. 499, 148 So. 384; Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41; Federal Credit Co. v. Scoggins, 158 Miss. 275, 130 So. 153; Burks v. Moody, 141 Miss. 370, 106 So. 528, 107 So. 279; Mexican Gulf Land Co. v. Globe Trust Co., 125 Miss. 862, 88 So. 512; Self v. King, 124 Miss. 874, 87 So. 489; Longmire v. Mars, 124 Miss. 77, 86 So. 753; Whitehead v. Kirk, 104 Miss. 776, 61 So. 737; Dixon v. Milling, 102 Miss. 449, 59 So. 804; Groce v. Phoenix Ins. Co., 94 Miss. 201, 48 So. 298; Virden v. Dwyer, 78 Miss. 763, 30 So. 45; Barwick v. Moyse Sons, 74 Miss. 415, 21 So. 238; Hillrer v. Jones, 66 Miss. 636, 6 So. 465; Day v. Davis, 64 Miss. 253, 8 So. 203; Finch v. Tanner, 2 Miss. Dec. 209; Code of 1942, Sec. 455.
On or about July 27, 1944, J.L. Alexander died intestate in Sunflower County, Mississippi, survived by his widow, Mrs. Bonnie B. Alexander, appellee here, and his three married daughters by a former marriage, appellants here. Letters of administration were issued to the widow, who duly qualified.
As administratrix she employed a solicitor and at the time informed him that certain personal property, apparently part of the estate of her deceased husband, was, as a matter of fact, her own. This solicitor told her to employ a personal attorney to prosecute her claim, if she intended to do so, as he could not, for the reason he was representing her as administratrix. This she did. By order of the Chancery Court the involved property was sold, and she was granted the right to receive the proceeds of that part to which she was entitled as her own, in lieu of the actual property, upon proof of her right to it.
Accordingly, she filed a written claim "to the proceeds of certain personal property, hereafter set out, which property was sold by an order previously made, which order however protected her rights to claim the proceeds of the sales of said property, in lieu of the property itself." Thereto were exhibited two bills of sale to her, executed by her husband, because of which she claimed a considerable amount of farm equipment and livestock. There was no process asked or served.
Appellants filed no answer or contest directly addressed to the foregoing petition by appellee, but before the Chancellor had acted thereon, they filed their own petition praying that such property be established as part of the assets of the estate of their deceased father, naming therein no one as respondent, asking no process thereon, and not waiving answer under oath. In addition to seeking the farm equipment and livestock, supra, the petition also sought to have declared property of the estate, one man's diamond ring; one 1942 Dodge coupe; all household furniture; and proceeds of all agricultural crops of all kinds for the year 1944, especially the proceeds of the oat crop, $2,008.55.
Appellee answered this petition under oath, averring that the farm equipment and livestock were her property, because of the aforesaid two bills of sale from her deceased husband; the diamond ring was hers as a gift from him; the Dodge car was hers by virtue of a trade whereby her deceased husband transferred it to her, so she would dispose of her own Plymouth car. Both cars were not then needed by them, as he was bedridden; and, the check for the oat crop was given her by him to buy a home for herself after his death, since he owned none to leave her. She claimed, also, in her answer that when she and her husband married he had only a small amount of furniture, "and that she and her husband purchased furniture, which was her individual property; that if her husband had any right or title therein, such right and title was conveyed to her by the bill of sale of September 10th, 1938; that the insurance thereon was carried in her name; that no particular furniture is claimed by the petitioners." Her answer further said that the attorney for the estate, in listing the property for sale, did not include any furniture therein, and if she had any articles of furniture belonging to petitioners, "she is ready and willing for them to be sold by the estate and to account to this Court for their proceeds." This answer exhibited with it her petition for the proceeds of the sale, supra, to which were exhibited the two bills of sale, as already stated.
The Chancellor placed the entire burden upon appellants, but we are of the opinion that the burden of proof was upon them only to prove that the farm equipment and livestock listed in the bills of sale, and the furniture, belonged to their deceased father, at his death. The proof, on that issue, sustained the claim of appellee. However, as to the alleged gifts to appellee of the diamond ring and the check for $2,008.55, we are of the opinion that the burden of proof was upon appellee to prove herself the donee thereof. The burden of proof was likewise upon appellee, in our judgment, to establish that she had acquired title to the Dodge car by virtue of the alleged transaction with her husband involving her own Plymouth car. She introduced no proof, at the trial.
At the conclusion of the evidence appellee moved the Court to exclude all of it, and enter a decree dismissing the petition of appellants. This motion was sustained. Probably the Court's action was prompted by a conception that appellee's sworn answer was conclusive proof of its averments, since oath to it was not waived in appellants' petition. The bills of sale were sufficiently proven in favor of appellee, we think, and appellants made no proof as to the furniture. So the Chancellor was correct in excluding the evidence and dismissing the petition for the furniture and the farm equipment and livestock. He was wrong as to the diamond ring; the Dodge car; and the check for $2,008.55. We revert to this phase of the case, post.
The answer of appellee set up affirmative matter to sustain her claimed rights to the three last items, and she should, therefore, have been put to the proof as to them. Strangely, all parties treated the claim of appellee to the proceeds of the sale, as a probated claim, which it was not. It is what its averments and prayer make it, — a petition for the proceeds of certain property sold by the administratrix, in lieu of the property itself, filed by leave of the Chancellor in the administration of the decedent's estate. The claim was not for payment of a debt out of the general funds of the estate.
The statute, Code 1942, Sec. 569, embraces "all claims against the estate of deceased persons, whether due or not." It would be expanding that language beyond the bounds of reason to hold a claim to the proceeds of the sale of personal property of an estate to be a debt owing by the decedent. The term "claim" in statutes relating to claims against estates includes not only debts already due, but unmatured debts. Roth v. Ravich et al., 111 Conn. 649, 151 A. 179, 74 A.L.R. 364. It applies only to specific money demands due or to become due and not to inchoate and contingent claims. Evans v. Hoyt, 153 Ark. 334, 240 S.W. 409.
The Supreme Court of Minnesota decided that a demand for a whole or a part of the estate is not a "claim" against it, since "claim" against the estate (which is the language of our statute) of a deceased person is a demand of a pecuniary nature, which could have been enforced against decedent during his lifetime. In Re Brust's Estate, 111 Minn. 352, 127 N.W. 11, 20 Ann. Cas. 852. We approve that announcement. See also 34 C.J.S., Executors and Administrators, Sec. 367, Claims, page 95. The case before us is a controversy over definite tangible chattels. That the petition had the oath of probate attached to it, and the Clerk certified it had been probated, registered and allowed, did not convert it to a probatable or probated claim. Both petitions were matters in the course of the administration of Mr. Alexander's estate, and neither required any answer.
Section 1281, Code 1942, provides that in matters testamentary, among others, no answer shall be required to any petition, and such petition shall not be taken as confessed because of the want of an answer, but every such petition shall be supported by the proper evidence. It may be contested without an answer, and such proceedings shall be as summary as the statutes regulating them require. However, when "either of the parties having a controversy in court as to any of said several matters shall require, and the court shall see proper, it may direct plenary proceedings by bill or petition, to which there shall be an answer, on oath or affirmation." Failure then to answer authorizes the taking of the bill as confessed. Neither of the parties hereto "required" an answer, nor did the court "direct" it. So failure of appellants to waive oath to appellee's answer, and her oath to it, should have had no weight in the Chancellor's adjudication of the issues.
But, let us assume for the sake of argument only, that the case was heard on bill and answer. Even so the Chancellor was not justified in the conclusiveness he accorded the sworn answer of appellee. Her claims to the property were affirmative averments of ownership. However, such affirmative averments in an answer are not evidence and must be proved, aliunde the answer. Sections 570, 571, note 67, pages 629 and 630, Griffith's Chancery Practice. Again we point out that appellee offered no evidence here, since the Chancellor, on her motion, excluded the evidence of appellants and dismissed their petition.
Had appellants appeared and contested the petition of appellee as to the proceeds of the farm equipment and livestock, the burden there would have remained upon her. But they did not do so. They filed a petition of their own, claiming this property to be assets of the estate (to which each of them would be entitled to a fourth). They, therefore, eased that burden from appellee and assumed it themselves. Yet a contest merely of appellee's petition would have left unchallenged her possession of the diamond ring, the Dodge coupe, the check for $2,008.55, and the furniture. So, appellants naturally went after all of it, but with the resultant complications, as shown.
Appellants further assign as error that the trial court excluded part of the testimony of appellant Mrs. W.E. Reedy, a daughter and one of appellants, as to the physical and mental condition of her deceased father during his last illness, for the reason that her testimony would tend to establish her claim. Section 1690, Code 1942. In support of their contention they cite McFarlane v. Plant et al., 185 Miss. 616, 188 So. 530, holding that a distributee of an estate of a decedent is a competent witness under statute to establish claim of the decedent against the estate of another decedent. We do not think that case is in point here. Whitehead et al. v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L.R.A. (N.S.) 187, Ann. Cas. 1916A, 1051; and Kern v. Cooper et al., 106 Miss. 895, 64 So. 838; sustained the correctness of the Chancellor's ruling.
As to the alleged gifts of the diamond ring and the check, we are of the opinion the Chancellor erred in not holding that the burden of proof was on appellee. 24 Am. Jur., Gifts, Sec. 133; Stewart v. First National Bank, 192 Miss. 355, 5 So.2d 683. His excluding the evidence and dismissing appellants' petition with reference thereto was, therefore, error, in our judgment. He likewise erred in so doing with reference to the Dodge coupe. The appellants' contention that Section 455, Code 1942, protects the estate against appellee's claim to this property as gifts from her husband, cannot prevail here, since they are not "third" persons as therein contemplated. Self v. King, 124 Miss. 874, 87 So. 489, refutes such argument.
Had the Chancellor not sustained appellee's motion to exclude all of the evidence, he would have been amply warranted in holding for her as to the farm equipment and livestock and furniture, and a decree could have been entered for her as to such property. But she herself had all the evidence excluded, instead of limiting her motion to that part thereof bearing on the farm equipment, livestock and furniture. But her motion, as made, upon being sustained, left appellee with no proof of right to the farm equipment, livestock, and furniture, the proceeds of which her own petition was seeking, as she offered no proof about it. Such a partial exclusion, however, would have left her still under the necessity of proving the gifts to her of the diamond ring, the Dodge coupe, and the check, and in seeking to avoid those issues, she unfortunately cast away the advantage she had, up until then, achieved in the trial.
So, in our judgment, we must and do reverse the entire decree and remand the cause for a new trial, where the burden of proof shall be placed on appellants as to the farm equipment, livestock, and furniture, and upon appellee as to the diamond ring, the Dodge car and the check for $2,008.55.
Reversed and remanded.