Opinion
No. 36319.
January 27, 1947.
1. WILLS.
In absence of statute to contrary, oral promise to make will can be proved as any other fact.
2. NAMES.
In absence of statute, common law is controlling in determining whether omission of middle name in written instrument is material.
3. NAMES.
The omission or insertion of middle name or middle initial in written instrument is immaterial.
4. EXECUTORS AND ADMINISTRATORS.
The omission of middle name or middle initial of deceased from probated claim did not invalidate claim.
5. EXECUTORS AND ADMINISTRATORS.
The failure of probated claim to disclose whether debt claimed was due from or to deceased's estate, and if from to whom did not invalidate claim.
6. FRAUDS, STATUTE OF.
A woman's promise to wash, iron and cook for a man who promised to bequeath his property to woman might have been performed in less than fifteen months and hence was not within statute of frauds (Code 1942, sec. 264).
7. FRAUDS, STATUTE OF.
A man's promise to make will leaving his property to woman who promised to wash, iron and cook was not within statute of frauds (Code 1942, sec. 264).
8. APPEAL AND ERROR.
The refusal to permit witness to testify on ground that witness was disqualified under statute would not be considered by Supreme Court where record did not disclose what the evidence of witness would have been (Code 1942, sec. 1690).
9. EXECUTORS AND ADMINISTRATORS.
Claim against decedent's estate for personal services rendered by claimant was barred as to all items accruing more than three years before the date of decedent's death (Code 1942, sec. 729).
10. EXECUTORS AND ADMINISTRATORS.
Facts which prevent statute of limitations from running against probated claim should appear in some form on probate thereof, and cannot be made to appear for first time by evidence offered when claim is under consideration in administration of deceased's estate (Code 1942, sec. 729).
APPEAL from the chancery court of DeSoto county, HON. V.D. ROWE, Chancellor.
R.F.B. Logan, of Hernando, for appellant.
The court erred in permitting any testimony on the probated claim of appellee that was barred by the statute of limitation. The attempted probated claim of Mrs. Mae Scruggs shows on its face that it was an open account for personal services not performable within fifteen months from the date rendered.
Moore v. Smart, 171 Miss. 248, 157 So. 467; Code of 1942, Sec. 264.
The court erred in refusing to permit Mrs. Mary Chamberlain to testify in this cause. Mrs. Mary Chamberlain was a sister and heir at law of George E. Boggan, deceased, and for this reason the lower court would not permit her to testify.
See Ford v. Byrd, 183 Miss. 846, 184 So. 443; Cock v. Abernathy, 77 Miss. 872, 28 So. 18; Sweatman v. Parker, 49 Miss. 19.
The court erred in allowing any part of the claim of appellee on a quantum meruit basis on the sole and only testimony of her husband, J.F. Scruggs, that George Boggan, deceased, had promised to make a will and give appellee all of his property.
Bell v. Oates, 97 Miss. 790, 53 So. 491; U.S. Fidelity Guaranty Co. v. Blanchard, 182 Miss. 179, 184, 181 So. 134; Jordon v. Love, 171 Miss. 523, 157 So. 877; Banks Co. v. Pullen, 113 Miss. 632, 74 So. 424; In re Weaver, 182 Pa. 349, 38 A. 12; Code of 1942, Secs. 454, 568.
The attempted account of Mrs. Mae Scruggs is headed as follows: "In account with George Boggan, Dec'd." No one can tell from this statement whether George Boggan, deceased, is being charged with something, or whether he is being credited with something; moreover it is in account with George Boggan, deceased, and not with George E. Boggan, and there is nothing in this record to show that George E. Boggan and George Boggan are one and the same person. There is no evidence in this record that George E. Boggan, deceased, owed Mrs. Mae Scruggs anything.
Wilson v. Yandell, 174 Miss. 713, 165 So. 430.
The statute with reference to probated claims must be complied with in substantial particulars, and such compliance with the statute is mandatory.
Strange et al. v. Strange, 189 Miss. 349, 197 So. 830; Jordan v. Love, supra; Merchants Manufacturers Bank v. Fox, 165 Miss. 833, 147 So. 789.
The court erred in allowing any part of Mrs. Mae Scruggs' claim on the testimony of her husband alone. The law of Mississippi requires a will to be witnessed by two people who are not interested in the estate; and it seems to me that if a person undertakes to claim an interest in an estate under a promise made by the decedent that he would leave his property to a certain person on certain conditions, then, in that event, the promise to make the will should be made in the presence of two or more disinterested people. In the case at bar one witness, J.F. Scruggs, testified that this promise was made by the decedent in the presence of Mrs. Scruggs and her husband, J.F. Scruggs, the two interested parties. And according to the testimony of J.F. Scruggs, the promise was made by George Boggan and not George E. Boggan.
The court erred in allowing any part of the probated claim of appellee. The attempted probated claim filed by Mrs. Mae Scruggs in this cause does not show anything due from George E. Boggan, deceased, to Mrs. Mae Scruggs, because it says: "In account with George Boggan, Dec'd." No one can tell from that statement whether something is due George Boggan, deceased, or whether George Boggan, deceased, owes Mrs. Mae Scruggs or anyone else anything.
Wilson v. Yandell, supra.
This case must be tried on the pleadings, that is, the probated claim which is an open account for personal services for a definite period of time and for a definite sum of money. This is the only pleading probated and filed as to the claim of Mrs. Mae Scruggs and it is silent in whole as to any promise on the part of George E. Boggan that he would make a will and give her his property if she would do certain things for him. And the contest of this attempted probated claim was that the decedent, George E. Boggan, did not owe said Mrs. Mae Scruggs anything based on this attempted probated claim. When the case came on for trial, the claimant did not contend for a definite and certain amount, but based her claim on a quantum meruit basis and had her husband testify that George Boggan (not George E. Boggan) had promised to make a will and give his wife all of his property if she would do certain things for him; all of which was foreign to the theory of the case as set up in the pleadings.
Illinois Cent. R. Co. v. Sumrall, 96 Miss. 860, 51 So. 545; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.
It is the universal rule generally upheld in all appellate courts that, except as to jurisdictional questions or some such dominant question as lies at the very foundation of the case, the appellant is confined on appeal to the position which he assumed in the trial court.
Gulf S.I.R. Co. v. Boswell, 85 Miss. 313, 321, 38 So. 43; 2 Ency. Pl. Pr. 516; 4 C.J. 710-712; Elliott App. Prac., p. 410 et seq.
Gerald Chatham, of Hernando, for appellee.
The statute of limitations does not apply to a suit for damages and breach of a contract, because the cause of action does not accrue to claimant until breach of the contract, which is certainly not ascertained until the death of the intestate.
Ellis v. Berry, 145 Miss. 652, 110 So. 211.
When compensation for services is not to be made until a certain date or the happening of a certain event, full compensation may be recovered by law for all services performed prior to that date, as the statute of limitations does not begin to run until the time so fixed. In accordance with this principle, the general rule prevails that where personal services are performed by one person for another during life under a contract of mutual understanding, fairly to be inferred from their conduct and declarations, and the attending circumstances, that compensation therefor is to be provided in the will of the party receiving the benefit of them, and the latter dies intestate, or fails to make such provisions, the subsisting contract is then broken, and not only will the action then lie for the recovery of their reasonable value, freed from the operation of the statute, but it could not be maintained before. So the cause of action for breach of contract to devise land in consideration of services rendered, arises upon breach, and recovery may be had for the value of all the services, although part were rendered beyond the statutory limitation period prior to the breach. The reason for this doctrine is placed upon the ground that no breach of the agreement occurs until the decedent's death, for until then no debt is due, and no lawful demand can be made, and therefore the statute of limitations does not begin to run until the decedent's death, for until then no debt is due and no lawful demand can be made, and therefore the statute of limitations does not begin to run until that time.
Ellis v. Berry, supra.
Argued orally by R.F.B. Logan, for appellant, and by Gerald Chatham, for appellee.
The appellee probated the claim against the estate of George E. Boggan in the following form:
"In account with George Boggan, Dec'd. 1939 12 months, washing, ironing cooking at $10.00 per month ..................... $ 120.00 (with a similar separate item for each of the years 1940 to 1944, inclusive) 1945 5 months, washing, ironing cooking at $10.00 per month ....................... $ 50.00 _____________ Total .................................. $770.00" It was signed at the end "Mae Scruggs", and the statutory affidavit was attached thereto. A contest of the claim by the appellant was tried by the court without being referred to an auditor, and was allowed for $670. The administrator appeals; no cross-appeal was filed by the appellee.The evidence discloses that the decedent lived with Mr. and Mrs. Scruggs, during and after the year 1939, and promised Mrs. Scruggs that if she would do his washing, ironing and cooking, he would devise and bequeath his property to her. Mrs. Scruggs lived up to her part of this agreement, but the decedent did not, dying without devising or bequeathing any property to Mrs. Scruggs.
The appellee proved these facts by her husband alone, and the appellant says that since two witnesses are necessary in the making of a will, two witnesses should be required to prove a promise to make one. No authority is cited for this, and the point is without merit. A promise to make a will may be oral, and in the absence of a statute to the contrary, may be proved as any other fact may be.
The appellant had two objections to the form of this probated claim. One is that the middle name or initial of the decedent was omitted therefrom; that it should have been against the estate of "George E. Boggan" instead of the estate of "George Boggan."
Whether the omission of one's middle name in written instruments is material, has not heretofore been answered by this Court, and as we have no controlling statute, its answer must be found in the common law. That law "knows of but one Christian name" (Haywood v. State, 47 Miss. 1), and according to the English courts, the Supreme Court of the United States, and the courts of all but a few of the American states "the omission or insertion of the middle name, or of the initial letter of that name, is immaterial." Games v. Stiles, 14 Pet. 322, 10 L.Ed. 476. A full discussion of this rule, its origin and history, with a citation of the cases will be found in the note to State v. Hughes, [ 31 Tenn. 260] in 1 Am. Rul. Cases, 44; and if further authority should be desired, see 45 C.J. 369 and 38 Am. Jur., Name, Sec. 5, p. 596. In Thomas v. First National Bank of Gulfport, 101 Miss. 500, 58 So. 478, 481, 3 L.R.A. (N.S.) 355, this court, though not then called on to answer the question here under consideration quoted, seemingly with approval, the following excerpt from Beattie v. National Bank of Illinois, 174 Ill. 571, 61 N.E. 602, 43 L.R.A. 654, 66 Am. St. Rep. 318, "the law does not regard the middle [letter] as a part of a person's name, but only recognizes one Christian name of a party."
The second of the appellant's objections to this probated claim is that it does not disclose whether the debt claimed is due from, or to, the decedent's estate, and if from, to whom. This objection seems to the writer to be well taken, but he yields to the judgment of his associates, who are of the opinion that it is without merit.
The appellant invokes the statute of frauds, seemingly, both as to Mrs. Scruggs' promise to render the service she did to the decedent and the decedent's promise to devise his property to her in consideration thereof. Mrs. Scruggs' promise is not within Section 264, Code 1942, for the reason that it might have been performed in less than fifteen months. Steen v. Kirkpatrick, 84 Miss. 63, 36 So. 140; Smith Co. v. Jones, 75 Miss. 325, 22 So. 802; Jackson v. Illinois Cent. R. Co., 76 Miss. 607, 24 So. 874. That the statute of frauds does not apply to a promise to make a will appears from Johnston v. Tomme, 199 Miss. 337, 24 So.2d 730, at page 733.
The appellant offered a witness who was not permitted to testify seemingly on the ground that she was disqualified under Section 1690, Code 1942. Whether or not this ruling of court is correct, is not before us, for the reason that the record does not disclose what the evidence of this witness would have been.
On the face of the appellee's probated claim, a part thereof appears to be barred by the three-year statute of limitation, Code 1942, Sec. 729, and the appellant says that the court erred in not approving the claim for only that portion of it which appears not to be barred. The appellee's answer to this contention is that her cause of action did not arise until the death of the decedent without complying with his promise to devise property to her. This is true, but can avail her nothing here, for the reason that facts which prevent the statute of limitation from running against a probated claim should appear in some form on the probate thereof and cannot be made to appear for the first time by evidence offered when the claim is under consideration in the administration of the decedent's estate. This ruling is clearly stated and the reasons therefor given in Whitehead v. Puffer, 187 Miss. 193, 192 So. 566. "The statute . . . clearly contemplates that, in presenting claims against the estate of a decedent, the evidence or statement of same probated must on its face show a prima facie right in the claimant to recover from the estate the amount claimed." First Columbus Nat. Bank v. Holesapple-Dillman, 174 Miss. 234, 164 So. 232, 234, quoted with approval in Wilson v. Yandell, 174 Miss. 713, 165 So. 430.
The court below should have allowed this claim only for the three years preceding the death of the decedent, and its decree will, therefore, be reversed and one will be rendered here approving the claim to that extent.
So ordered.