Baldridge v. Stribling

57 So. 658 | Miss. | 1911

McLean, J.,

delivered the opinion of the court.

One of the defendants in the court below, Mrs. Jane Stribling, testified that, a short time before her father’s death, he came to her with a roll of money in his hand and said that that was all the money he had left; that he wanted to give it to her, with the understanding that she was to take care of him during his life, and after his death to give him a decent burial; that he actually delivered to her the money, three thousand, six hundred dollars. The appellant, complainant in the court below, objected to this evidence on the ground that the witness was establishing her own claim against the estate of a deceased person. The chancellor overruled the objection. The appellee contends that this witness was not testifying to establish her own claim against the estate of a deceased person, as the deceased' had no estate of any kind at the time of his death in this money, and hence that Sec. 1917 of the Code of 1906 does not apply to the testimony of this witness, and in support of the contention relias upon Snell v. Fewell, 64 Miss. 655, 1 South. 908. The counsel misconceives the opinion of the court in this case. The witnesses in that case were held competent, for the reason that neither of them was seeking to assert any claim or interest in the property. To say, as appellee contends, that the deceased, the father of Mrs. Mary Stribling, had no estate or interest in the property in controversy, is to assume as true the very point in question. The testimony of this witness was in the teeth of the statute, which declares that “no person shall testify as a witness to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent.” The claim of Mrs. Stribling to this money arose during the lifetime of the deceased, and the object and purpose of the legislature in enacting this statute was to prohibit this testimony. The following authorities are squarely on the proposition: Burnett v. Smith, 93 Miss. 566, 47 South. 117; Cockrell v. Mitchell, 15 South. 41; Jackson v. Smith, 68 Miss. 53, 8 South. 258.

Mrs. Stribling was a competent witness to prove that she received the letter written by Dr. Price, for the purpose of laying the foundation for the introduction of the letter. Cole v. Gardner, 67 Miss. 670, 7 South. 500; Harper v. Lacy, 62 Miss. 5. What purports to be a copy of the letter is attached, as an exhibit, to the defendant’s answer; but the letter itself was not introduced, nor was there any evidence accounting for the absence of the original — nothing to show that it was lost or destroyed — and consequently no foundatin was laid for the introduction of its contents, and hence all the evidence relating to the contents of this letter was clearly inadmissible.

The defendants also objected to the testimony of Wm, P. Stribling, S. E. Stribling, and W, C. G-ryder, on the ground, chiefly, that their testimony is hearsay. All of the witnesses testified that the deceased, P. Oates, stated to them at different times that h^ had given his money to Mrs. Mary Jane Stribling, and that she was to take care of him. While these statements of the deceased may be regarded as hearsay; yet they are declarations against interest, and accordingly are admissible; the rule being that declarations, whether verbal or written, made by a deceased person as to facts presumably within his knowledge, if relevant to the matter of inquiry, are admissible in evidence as between third parties (1) when it appears that the declarant is dead; (2) that the declaration was against his pecuniary interest; (3) that it was of a fact in relation to a matter of which he was personally cognizant; and (4) that the declarant had no possible motive to falsify the fact declared. Notes to 94 Am. St. Eep. 673; Am. & Eng. Ency. of Law, vol. 9, p. 8.

The gift or transfer of this money was assailed upon the ground of undue influence; but the complainant failed to meet the burden imposed upon her, and mere suspicion, however strong, is insufficient upon which to set aside the transaction. Powell v. Plant, 23 South. 402.

Objections were made to other portions of the evidence; but, as no harm could possibly be done to either party, either by the admission or rejection of this evidence, we do not consider it necessary to refer to it.

Disregarding entirely the incompetent testimony, there is ample evidence to support the decree, and the same is affirmed. Affirmed.