Covington v. Frank, 77 Miss. 606

77 Miss. 606 | Miss. | 1900

Terral, J.,

delivered the opinion of the court.

Godfrey Frank and others filed their bill in the chancery court of Bolivar county against the unknown heirs of W. A. Covington, deceased, to collect certain notes executed by said decedent for large sums of money, and to foreclose a mortgage executed by Covington alone upon a large real and personal property, for the security of said notes.

Mary Covington and Cornelia Covington, claiming to be the widow and daughter of Covington, made themselves parties to the bill and interposed as a defense thereto that the claim was excessive, and that a portion of the real estate sought to be subjected to the claim was not liable, because it was the homestead of the decedent and of his family, and the mortgage was not signed by his wife, the said Mary Covington.

The depositions of Mary Covington and of Cornelia Miller was offered by them to prove their relationship of widow and child of Covington, and hence their title to his estate by descent, and these depositions were excluded by the court.

Section 1738, annotated code, provides: “Every person, whether a party to the suit or not, shall be competent to give evidence in any suit at law or in equity, and shall not be incompetent by reason of any interest in the result thereof, or in the record, as an instrument of evidence in other suits.” And § 1740 provides that: “A person shall not testify as a witness to es-tablisb bis own claim or defense against tlie estate of a deceased .person which originated during the lifetime of such deceased person.” And upon the construction of these clauses the competency of said witnesses must be determined.

Sec. 1738 removes a disability of persons which existed at or by the common law. and thus bestows a right or benefit upon all persons, and § 1740 excepts from that right or benefit the persons therein named: and it is a rule in the construction of statutes that exceptions must be strictly construed. Endlich on Const. Stats., sec. 340; Black on Interpretation of Laws, 275, 282. And where strict construction is to be resorted to, the person or thing excepted must come within both the letter and the spirit of the act. Now, the exception in § 1740 is that of a person to establish his own claim, etc., which originated in the lifetime o.f the deceased. If to prove the status of Mary Cov-ington and Cornelia Miller as to' W. A. Covington be proof of a claim against the estate of W. A. Covington, certainly it is a claim that did not originate in the lifetime of W. A. Covington. It is undoubted law that a child, during the lifetime of the father, has no interest in his estate; it was held in the New Orleans Railway & Mill Supply Co. v. Gatti and wife, at this term, that a wife has no property interest in the homestead of the husband such as would constitute a consideration to support a promise from him to her. So neither wife nor child has any interest in the property of the husband and father during his lifetime; dying intestate they would be his heirs, and to prove their relationship to him is to prove their title to his property by descent when cast; but it is not to prove a claim that originated in his lifetime. At the death of a person, dying intestate, eo ins tan ti' the title of the heirs áccrues. Jones v. Robinson, 17 Ohio St., 171, 180; 1 Redfield on Wills, 412, 413.

It is too plain for argument that the title of Mary Coving-ton and Cornelia Miller, as his heirs, to the estate of W. A. Covington did not accrue in his lifetime, and only a claim arising in his lifetime excludes them from testifying.'

In Tucker v. Whitehead, 59 Miss., 594, and in Kelly v. Miller, 39 Miss., 17, it is beld that a person claiming title or right under a will may testify to establish the will by which their title to the estate of the testator is established; a like construction authorizes a person to establish his title to the intestate’s property by his own oath. They are parallel cases in every respect. If § 1740.did not exclude Mary Whitehead from testifying in Tucker v. Whitehead, or Miller from testifying in Kelly v. Miller, it ought not to exclude Mary Cov-ington and Cornelia Miller from testifying in this case. The title of Mary Whitehead accrued upon the death of Tucker, as the title of Mary Covington accrued at the death of Cov-ington. In neither case did the title originate in the lifetime of the testator or of the intestate, and both are competent witnesses.

It is held in some eases that where a marriage relation is directly in issue, one of the parties cannot testify thereto, the other party being dead; but where such relation comes indirectly in issue, such relation may be proved by one of the parties, though the other is deceased. Jones on Evidence, sec. 793; Green v. Green, 126 Mo., 17. This authority directly supports our decision. For the direct question in this case is, what is the amount of the debt due these executors; what part, if any, of this estate can be preserved from the claim of this creditor ? The claim directly in issue here is the claim of these executors; the right of Mary Covington and Cornelia Miller is only indirectly concerned.

We are of the opinion that the depositions of Mary Coving-ton and Cornelia Miller should have teen received and considered by the chancellor, and- for the error in excluding them, the decree is reversed, and the case is remanded for a- new hearing.