Opinion
No. 39534.
April 4, 1955.
1. Gifts — courts favor — when.
Where relationship of parties is such as to make a gift a natural act, courts look with more favor on gift where weight of evidence is involved than would be necessary to sustain gift to a stranger.
2. Gifts — asserted after donor's death — evidence — clear and convincing.
Gifts asserted after death of alleged donor should be proved by clear and convincing evidence.
3. Gifts — evidence — gift of promissory notes to wife by husband — established.
Evidence sustained finding that deceased gave entire interest in promissory notes to his wife during his lifetime.
Headnotes as approved by Arrington, J.
APPEAL from the Chancery Court of DeSoto County; HERBERT HOLMES, Chancellor.
R.F.B. Logan, Hernando; James Stone Sons, Oxford, for appellant.
I. The Lower Court erred in holding void and in setting aside its former order vesting in the Administrator C.T.A. title to one-half of the proceeds of the notes in suit because the Lower Court had jurisdiction of the subject matter, and appellee's own fraud estopped her from raising the objection that she was not served with process. Perrin v. Perrin Properties, Inc., 53 Ariz. 121, 86 P.2d 23, 122 A.L.R. 621; 31 Am. Jur., Sec. 766 p. 304; 49 C.J.S., Sec. 284 p. 512.
II. The Lower Court erred in admitting any evidence as to the real estate transactions in Tenessee because such transactions were, and are, completely irrelevant so far as concerns the proper decision of this case.
III. The Lower Court erred in not holding that appellee was estopped to maintain this suit because of the following: (1) she did not renounce the will of Moses Saulsberry and the time had expired for such renunciation; so she is claiming partly under the will and partly against the will, and (2) the failure to serve her with process on the first hearing was due to her own failure to divulge that she claimed all the notes as a gift inter vivos.
IV. The Lower Court erred in holding that Moses Saulsberry and appellee, his wife, were tenants by entireties and not tenants in common because the notes in suit, and the deed of trust securing such notes, all grew out of a real estate transaction involving Mississippi real estate. Bolton v. Barnett, 131 Miss. 802, 95 So. 721; Conn v. Boutwell, 101 Miss. 353, 58 So. 105; Cross v. O'Cavanagh, 198 Miss. 137, 21 So.2d 473; Ewing v. Warren, 144 Miss. 233, 109 So. 601; Jahier v. Rascoe, 62 Miss. 699; Jane v. Martinez, 104 Miss. 208, 61 So. 177; Prater v. Prater, 208 Miss. 59, 43 So.2d 582; Richardson v. Neblett, 122 Miss. 723, 84 So. 695; Wilson v. Cox, 49 Miss. 538; Secs. 467, 834, Code 1942.
V. The Lower Court erred in holding that Moses Saulsberry made a valid gift inter vivos to appellee of the whole of the notes in suit for the reason that the testimony in support of such gift inter vivos was not of such sufficiency as required by law. Bourn v. Bourn, 163 Miss. 71, 140 So. 518; Ham v. Ham, 146 Miss. 161, 110 So. 583; Jones v. Jones, 162 Miss. 501, 139 So. 873; Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790; McClellan v. McCauley, 158 Miss. 456, 130 So. 145; Smythe v. Sanders, 136 Miss. 382, 101 So. 435; Stewart v. First Natl. Bank Trust Co. of Vicksburg, 192 Miss. 355, 5 So.2d 683; Woods v. Sturges, 116 Miss. 412, 77 So. 186; 24 Am. Jur., Secs. 115, 132-33 pp. 790, 799.
Lawrence W. Harrison, Judge Edgar Webster, Memphis, Tennessee, for appellee.
I. Estates by the entirety in personal property existed at common law, and still exist in the common law states, unless the common law has been abrogated. Allen v. Tate, 58 Miss. 588; Campbell v. Campbell, 167 Tenn. 77; Johnson v. Lusk, 6 Caldwell 113; MacMillan v. Mason, 45 Tenn. 263; Smith v. Haire, 133 Tenn. 343.
II. Estates by the entirety with right of survivorship cannot be destroyed by one tenant, alone, by will, or otherwise. Smith v. Haire, supra; Anno. 8 A.L.R. 1017.
III. The mere fact that a note is taken in the name of the husband and wife raises a presumption that an estate by survivorship was intended. Pile v. Pile, 74 Tenn. 508.
IV. Unless changed by statute, personal property wherever situated descends and must be distributed according to the law of the domicile of the deceased owner. Doran v. Beale, 106 Miss. 305, 63 So. 647; Martin v. Stovall, 103 Tenn. 1.
V. An inter vivos gift is established when it clearly appears that the donor intended to give the identical thing delivered to the donee and the donor relinquishes all control over it. Allison v. Allison, 203 Miss. 20, 33 So.2d 619; Comfort v. Smith, 198 Miss. 152, 21 So.2d 584; Ford v. Byrd, 183 Miss. 846, 184 So. 443; Harmon v. McFarlane, 135 Miss. 284, 99 So. 566; Howell v. Ott, 182 Miss. 252, 181 So. 740; Lacey v. Pelus, 198 Miss. 185, 22 So.2d 239; Leverette v. Ainsworth, 199 Miss. 652, 23 So.2d 798; Scott v. McClinton, 214 Miss. 364, 58 So.2d 913; Security Mutual Life Ins. Co. v. Brunson, 176 Miss. 893, 170 So. 824.
VI. As between husband and wife, the above rule is not strictly applied. It is, however, between strangers and fiduciaries. Jones v. Jones, 162 Miss. 501, 139 So. 873.
VII. Negotiable instruments do not have to be endorsed to become the object of an inter vivos gift. Rothwell v. Taylor, 303 Ill. 226, 135 N.E. 419.
VIII. Where personal property is acquired by husband and wife in one state at a time when they have established their domicile, or are about to do so, in another state, to which they soon go, the property thus acquired takes on the same aspect as if it had been acquired in the latter state; and the laws of such latter state control not only the marital status of it, but the descent of same. Land v. Land, 22 Miss. 99, 14 Sm. M. 99; State v. Barron, 14 Tex. 179; Vertner v. Humphreys, 22 Miss. 130, 14 Sm. M. 130.
IX. Notes in the possession of a nonresident secured by a trust deed on lands in Mississippi are not situated in the State, within the meaning of Section 467, Code of 1942. Speed v. Kelly, 59 Miss. 47.
X. An insurance policy which reserved to the insured the right to change the beneficiary became, by delivery, the property of the donee, even though at the request of the insured a new policy with another beneficiary was issued by the company. Stepson v. Brand, 213 Miss. 826, 58 So.2d 18.
XI. The Supreme Court is not justified in disturbing the finding of a Chancellor, unless it should appear to it that the Chancellor was clearly and manifestly wrong. Lindeman's Estate v. Herbert, 188 Miss. 842, 193 So. 790; Magnolia Textiles v. Gillis, 206 Miss. 797, 41 So.2d 6; Puryear v. Austin, 205 Miss. 590, 39 So.2d 257.
Moses Saulsberry died in Memphis, Tenessee, on January 19, 1953, owning at the time of his death property in Mississippi and in Tenessee. He had resided in Mississippi until 1952, when he established his home in Tennessee. In his will, executed in 1939, he devised 40 acres of land on which his home was situated in DeSoto County, Mississippi, to Josephine Saulsberry, his wife, together with other real property and certain personal property, none of which is involved in this case. All other property not devised and bequeathed in said will was devised and bequeathed one-fifth to Josephine Saulsberry, and four-fifths to other persons. After his death, the will was offered for probate in DeSoto County, Mississippi, by two of the residuary legatees, Johnie Saulsberry and Estella Saulsberry, was admitted to probate, and James P. Tipton, Chancery Clerk, was appointed administrator, c.t.a. of the last will and testament of Moses Saulsberry, deceased.
Thereafter it developed that on August 20, 1952 Moses Saulsberry had sold to Lawyer Chalmers and his wife, Estella W. Chalmers, the 40 acres of land in DeSoto County on which he resided while living in Mississippi, and which had been devised in his will to Josephine Saulsberry, for a consideration of $4,000 — $1,200 in cash and the sum of $2,800 evidenced by six notes payable as follows: Note No. 1 for $134.00, payable on or before December 1, 1952; Notes 2, 3, 4, 5 and 6, each in the sum of $555.00, being due and payable as follows: Note No. 2 being due and payable on or before December 1, 1953, and one of said notes being due and payable on or before the first day of December of each year thereafter. These notes provided for interest at the rate of five percent per annum from December 1, 1952, and were secured by a deed of trust on the 40 acres of land. The notes were payable to Moses Saulsberry and his wife, Josephine Saulsberry. The whereabouts of the notes were not known and the administrator c.t.a. filed a petition against Lawyer Chalmers and his wife, Estella W. Chalmers, setting out the above facts and alleging that as administrator c.t.a., it was his duty to collect one-half of each of the last five notes and one-half of the interest due thereon. Defendants answered, acknowledging the averments of the petition and submitted themselves to the jurisdiction of the court, and asked for directions as to how to pay the money. Whereupon, the defendants were ordered to pay one-half of the amount of said notes, as each note became due, to the administrator c.t.a. of the estate of Moses Saulsberry, deceased. Josephine Saulsberry was not a party to this proceeding, and no process was served on her, or notice given her of said proceeding, although the administrator was corresponding with her about other matters and knew her address. This decree was entered on September 14, 1953.
On January 14, 1954, Josephine Saulsberry filed her petition in the Chancery Court of DeSoto County, asking that the previous decree ordering one-half of the sum of said notes be paid to the administrator c.t.a. of the estate of Moses Saulsberry, deceased, be set aside, and alleged that prior to the death of Moses Saulsberry, he had given the notes to her, and other matters not necessary to set forth herein, due to the conclusion that we have reached.
Upon hearing the matter, the chancellor vacated the former decree and found that Moses Saulsberry, for good and sufficient reason during his lifetime, gave these notes to Josephine Saulsberry to be her sole and exclusive property, and appellant has appealed.
The elements of a gift inter vivos are set forth in the case of Maier v. Hill, (Miss.) 72 So.2d 209, and the facts in that case are very similar to the facts in this case, except that persons not related to any of the interested parties were present and testified to the fact of the gift, and the notes were payable to the donor and donee. In the instant case, Maliza Williams, the daughter of the appellee, was the only witness to testify that she saw the gift made. O.T. Williams, a son-in-law, and Valerie Daniels, a daughter, testified concerning statements made by the donor a month or so after the alleged gift, which supported Maliza's testimony. The chancellor saw these witnesses and had a right to determine whether they were telling the truth.
(Hn 1) Appellant argues that assuming the testimony of the petitioner's witnesses to be true, the evidence is just as consistent that it is a gift of only a half interest in the notes as it is that it is a gift of the entire interest. However, it is a question for the trier of fact "to decide as questions of fact matters relating to the . . . intent with which the delivery was made." 38 C.J.S., Gifts, p. 893. And where the relationship of the parties is such as to make a gift a natural act, the courts look with more favor on it where the weight of evidence is involved than would be necessary to sustain a gift to a stranger. 38 C.J.S., Gifts, pp. 882-883. (Hn 2) On the other hand, gifts asserted after the death of the alleged donor should be proved by clear and convincing evidence. Stewart v. First National Bank Trust Company of Vicksburg, 192 Miss. 355, 5 So.2d 683.
(Hn 3) Nevertheless, accepting the petitioner's testimony as true, there was substantial evidence to support the finding of a gift, which would include the necessary intent of the donor to give the entire interest in the notes, and we cannot say that the chancellor was manifestly wrong in his finding that there was a gift inter vivos of the promissory notes.
Affirmed.
Roberds, P.J., and Kyle, Ethridge, and Gillespie, JJ., concur.