3 Miss. 701 | Miss. | 1838
delivered the opinion of the court.
The foundation of this proceeding was upon a suit atlaw, instituted by Hezekiah Harrington, as executor of the last will and testament of Sarah B. Bradford, against Jephthah Harrington, for the recovery of certain negroes, as' a part of the estate. As a bar to the action, the defendant set up a deed of gift for the negroes in question, made by Sarah B. Bradford in her lifetime. By the courts of law, the instrument under which he claimed was decided to be a testamentary writing, and not a deed of gift, and the plaintiff interposed a subsequent will, by which the previous one was revoked, and succeeded in recovering the negroes. An execution was sued out to enforce the judgment, and for the coming bond given and forfeited, and another execution issued, and the defendant then filed this bill to enjoin the proceedings at law, and for reforming the testamentary writing, alleging that it was intended as a deed of gift, but was made a will by the error, mistake, and unskilfulness of the draftsman.' By this instrument, property was given to Jephthah Harrington, Gabriel Harrington, and John Harrington, and the bill is preferred in the name of Jephthah Harrington in his own right, and as administrator of Gabriel Harrington, who
These depositions being the only evidence in support of the allegations of the bill, naturally present to the court the first questions for adjudication. The counsel for the appellants have raised two objectionsto them. First, thatthey are inadmissible as evidence between the parties to the bill; and secondly, that even if they were properly received, yet it is insisted, that they are not sufficient to establish the alleged mistake, and to justify a reform of the instrument.
The rule for allowing depositions taken in one cause to be read in another, seems to derive its support from necessity rather than principle, and is justly subject to several restrictions. The following may be considered as the usual tests by which the admissibility of such testimony is to be determined. First, the parties must be the same, or in privity. Secondly. The question in controversy must be the same. Thirdly. That had the testimony been different, it would have been prejudicial to the party introducing it. Fourthly, that the verdict and judgment rendered in one case would be evidence in the other; and Fifthly. The legal existence of the first suit. 1 Starkie on Ev. 253, 54; 264, 5, 6, 7, 8; 4 Wash. Cond. Cha. Rep. 186; 1 Munf. Rep. 389. If all these preliminary questions be essential and indispensable, and I take them to be so, the depositions were improperly admitted. In the first place, the parties are not the same. The suit at law was in favor of Hezekiah Harrington as executor, against Jephthah Plarrington indi
But it is insisted, that although the parties are not identically the same, yet there is a privity, and on this ground, the depositions were properly received. In support of this position, we are referred to the definition of privies given by Jacobs in his Law Dictionary, and they are said to be “ those who are partakers, or who have an interest in any action or thing, or any relation to another.” Fornlius gives user the same definition, but it is so general, that we get no satisfactory idea of privity. A better understanding of the term is gathered from the examples given by the last mentioned author of the different kinds of privies, and I shall endeavor to apply these examples for the purpose of ascertaining whether the privity exists in this case. The counsel for the appellees have divided privies into four kinds, to wit, in blood, in estate, in law, and in deed, and insist that John Harrington is privy in estate. Now let us take the examples given, and see whether they sustain this position of counsel. The first instance given by the author of privies in estate, is as between donor and donee, lessor and lessee; another instance is, “ as he in reversion ■or remainder, when land is given to one for life, and to another in fee, for that their estates are created both at the same time.” A third is between joint tenants, baron and feme, lessor and lessee, &c. From these examples, I am led to conclude that this privity cannot exist, unless one hold under another, and claim title through
The depositions are also objectionable for another reason. They were not offered in connection with the record. There is such a record as that mentioned in the bill, made an exhibit, but is not connected in any manner with the depositions, and we can only know by inference, that it is the same cause in which the depositions were taken.
But even if we should be mistaken in this view of the law, as applicable to the case, we still feel satisfied, that the depositions • were insufficient for the purpose they were designed to accomplish.
There is no doubt but courts of equity will interpose to correct palpable mistakes, for the purpose of carrying into effect the intention of the parties where that intention is clearly shown, but the proof should be clear beyond a doubt, because, that it is better that a doubtful written instrument should stand, than that a doubtful provision should be substituted by parol testimony. Taking
■ The testimony of Mrs. Willis is nothing but hearsay; and that of Nancy East, so far as it has any bearing on the question, would support the- instrument as a will. The witness in substance states,' that she heard" Mrs. Bradford say, she intended the property for Jephthah Harrington and his two sons. In one of the answers, she states, that at several different times she heard Mrs. Bradford say she intended to leave her estate to the individuals above named, and that she wished them to be heirs to her property; This testimony lead's directly to the conclusion, that Mrs. Bradford intended to make this disposition of it by will.
Robert Liles states in substance, that he was present and signed the deed of gift as a witness. That the instrument presented to him at the time of deposing, was the same deed, that it was executed fairly and voluntarily, and that Mrs. Bradford declared at the time, that Jephthah, Gabriel, and John Harrington were her heirs, that they had rendered her services, and the estate would not more than compensate them. He afterwards frequently heard her speak of the deed, and say she had disposed of her property according to her wish. On cross-examination, the witness says he frequently heard Mrs. Bradford speak of the disposition of her property, before he knew any thing of the deed, and she always said she would give her property to those persons. He also states, that the deed was fully and distinctly read over to her, when if was signed. That it was not secretly done. She frequently spoke of it to the neighbors. That she called it a deed, and appeared fully to understand it.- She considered them more entitled to her property than her other relations, and enjoined on Jephthah Harrington that he should give certain sums of money to certain individuals at her death, if she did not make the gifts during her life.
This is, perhaps, the most important testimony offered, being that of a subscribing witness to the deed; and yét it shows nothing like mistake; on the contrary, it is also in support of the instrument as a will. There' is nothing to induce a belief that Mrs: Bradford thought of any thing else than making a disposition of
It is unnecessary to recapitulate more of the testimony: no additional fact is disclosed. The witnesses heard her speak of the deed and called it so by name. The testimony falls far short of establishing mistake. There, is one idea kept up and sustained throughout the whole of it, to wit: that she did not consider 'the instrument as conveying any right until after her death, and this is the distinguishing feature between a deed and a will. And when alluding to the capacity in which they were to take, we find that she invariably used the term “heirs,” a term not uncommonly applied to those who take by will. That she was in the habit of calling it a deed,, and declared that she would break it if she could, were but circumstances entirely immaterial when contrasted with her perfect understanding of the provisions of the instrument. The character of an instrument is to be determined by the provisions it contains, and not by-the name which may be given it by a person unskilled in technical language; and her impression that she could not revoke the instrument is not to be considered decisive of her power to do so. But even if it be admitted
There is one other point presented which must be disposed of. For the complainant, Jephthah Harrington, it is urged that at all events the cause must be remanded to the chancery court for further proceedings, because he is a legatee under the will, and is entitled to be protected to the extent of his interest. It is true that he is a legatee under the will, but as the case stands it seems to be impossible to afford any relief. This feature in the prayer is evidently secondary, having been adopted only as'a resort in case of failure in the primary object, and hence the showing for this purpose is deficient. He is but a reversionary legatee, having only an interest in the residue of the estate after the payment of debts and specific legacies. His interest is therefore conditional, and he is not entitled to receive it until the administration is completed, or at least until the debts are ascertained and provided for; because until then it cannot be known what he is entitled to. The proper relief could not be granted unless the court of chancery would undertake to administer the estate with a view to ascertain his rights.
It is alleged in the bill that the estate is not in debt, but denied by the .answer, and there is no proof on the subjéct; and a court of chancery will not decree an account to be taken unless there be a sufficient showing for that purpose. The only showing rve have before us is, that the complainant is a residuary legatee, but whether there is or will be any thing for him to take in that capacity does not appear. Besides, the orphans’ court of the proper county has ample power on this subject, and we perceive nothing in this case which makes it necessary to interfere with-its jurisdiction.
. The decree of the chancellor must be reversed, and the injunction dissolved, and the bill dismissed at complainants’ costs.