| Miss. | Oct 15, 1858
Lead Opinion
delivered the following opinion.
This was a proceeding, by petition, in the Court of Probates of Madison county, to compel the executor to deliver to the petitioners certain slaves, which they claimed as a specific legacy under the will of Mrs. Ann McWillie, deceased.
The petitioners alleged, that the testatrix, having made and published her last will and testament, in which she bequeathed to Ann J. Milcey, the wife of Owen Van Vacter, certain slaves, died in 1844; that the will was duly admitted to probate in said court, and that Abram A. McWillie was appointed sole executor by the will; that McWillie, qualified as the executor, took possession of said slaves, and continues to hold them; that all the debts of the testatrix have been paid, and that more than twelve months have elapsed since the date of his letters testamentary. The petitioners pray for a delivery of the slaves, with hire, or the payment of their value, and the amount of their hire.
A demurrer was filed to the petition, Avhich ivas sustained, and the petition dismissed. On appeal, the decree ivas reversed, and the demurrer overruled in this court. And the cause being remanded, the defendant filed his answer, in which he admitted that he was the executor, as charged ; denied that, as such executor, he held possession of the slaves claimed by the petitioner's, and refers to the inventory of the testatrix’s estate, returned by himself, as containing a true statement of the effects belonging to it. He alleged, that when she died, the testatrix was not seised of the slaves, and in support of this allegation, refers to, and makes it a part of his answer, a certain instrument alleged to have been executed by the testatrix on the 25th of April, 1842. As a further
The cause was heard upon the petition, answer, and proofs; and a decree was rendered, by which the defendant was ordered to deliver up the slaves, and to pay a certain sum as compensation for their hire, or in default of such delivery and payment, to pay petitioners the value of the slaves and their hire, as determined by the decree. Whereupon an appeal was taken to this court; and a reversal of the decree is sought, upon grounds which we will proceed to consider.
It is first insisted that, in this proceeding, the inventory returned by the executor was conclusivo as to the description and value of the assets, for which he was accountable: and hence, as the slaves claimed as a specific legacy, were not returned by the executor as part of the testatrix’s estate, the court had no authority to go beyond the inventory, and order distribution of property not embraced in it.
We may admit the correctness of this doctrine, as applied to a similar proceeding in the ecclesiastical courts of England, whose powers and jurisdictions are restricted to much narrower limits, than the authority and jurisdiction of the Courts of Probates in this State.
In the absence of statutory directions, it is found convenient to adopt the modes of proceeding observed by those courts. But in questions concerning the jurisdiction of the Courts of Probates, we do not refer to the ecclesiastical courts of England, as an authoritative standard. The Constitution of the State is the common source of the authority and powers of all our courts; and hence, in all questions in regard to the extent of their respective jurisdictions, must determine the controversy. The jurisdiction of the Courts of Probates, over the estates of decedents, was intended by the Constitution to be full and ample; and has, by this court, been uniformly held to be, in the main, exclusive.
In all cases in which letters testamentary, of administration, or of collection, are granted, it is made the duty of the executor,
It is true, in the case above cited, that the application was to compel the executrix to file a full and correct inventory, and not for distribution of assets not inventoried, as in the case at bar. But we apprehend this difference, under the circumstances of the present case, can have no important bearing upon the power of the court, to order a delivery of the slaves in controversy, to the petitioners, if in all other respects their claim be deemed valid. Here it is alleged that the executor, in his character as such, took possession of the property, claimed as a specific legacy, and that he is still in the possession of it. The court had jurisdiction of the person of the executor’, and, of consequence, its authority extended to all property in his possession, which rightfully constituted part of the testatrix’s estate. Assuming, for the present, that the property in controversy was assets of the decedent’s estate, to which the petitioners were entitled under the will, as a specific legacy, and that the executor took possession, and still holds possession, it would be mere trifling to hold, that before he could be called upon
In the second place, it is insisted that the decree should be reversed, for the reason, that the court had no power to adjudicate upon the title to the slaves in controversy, to which an adverse claim was set up.
It is conceded, that the Courts of Probates have no jurisdiction to decide upon the validity of titles, or the validity and construction of contracts, in a direct proceeding; but, that those Courts, in the discharge of the duties imposed upon them, by the Constitution and the laws made pursuant thereto, have the power, incidentally to try title, and to adjudicate upon the validity and construction of contracts, has never been questioned by any decision of this court. We have seen that the inventory is but prima facie evidence of the description and value of the estate, and that it may, by other evidence, in any suit by or against an executor or administrator, be shown to be false. All the cases recognize the poiver of those courts, to compel the executor or administrator to make a correct and full inventory of the assets of the estate in his hands. Killcrease v. Killcrease, 7 How. 311; Burnett v. Strong, 26 Miss. 116" court="Miss." date_filed="1853-12-15" href="https://app.midpage.ai/document/burnett-v-strong-8256529?utm_source=webapp" opinion_id="8256529">26 Miss. R. 116; Anderson v. Duke, 28 Ib. 87; Snodgrass v. Andrews, 30 Ib. 487. It is manifest that these cases, in effect, recognize the authority to adjudicate upon the title of property in the possession of the executor or administrator, which is alleged to be assets of the estate of the testator or intestate. For otherwise, the jurisdiction of the Courts of Probates, in this respect, would be utterly nugatory. The case of Hill v. Hardy & Williams, 34 Miss. 289" court="Miss." date_filed="1857-10-15" href="https://app.midpage.ai/document/hill-v-hardy-8257296?utm_source=webapp" opinion_id="8257296">34 Miss. R. 289, is a direct decision upon the question. In that case, it was held, that in matters connected with orphans’ business, and the administration of decedent’s estates, wrhere the question is incidentally presented, the Court of Probates has jurisdiction to try title, and to determine upon the validity and construction of contracts.
In the case at bar, the property claimed as a specific bequest, was in the possession of the testatrix at the time of her death, and went into the hands of her executor, who still held possession when the petition was filed. Under these circumstances, there can be no dispute, that, in a proceeding to compel him to return an inventory of it, the court would have jurisdiction to decide upon the
In the third and last place, it is contended, that conceding the authority of the court to go into the investigation of title, the decree was erroneous, upon the facts established by the evidence in the cause.
The adverse title set up, and upon which the assumption is based, that the property in question was not assets of the estate, and therefore not subject to distribution, arises under the deed of gift referred to in the defendant’s answer. That deed purports to be founded upon the love and affection, which the donor or grantor bore to the donee, Mrs. Sarah J. McWillie, her daughter-in-law, and the further consideration of one dollar. It conveyed certain slaves, including those in controversy, to Mrs. Sarah J. McWillie, for life, with remainder to a trustee, for the use of the appellant, Abram A. McWillie, and reserving to the grantor during her life the possession and control of the property. It bears date on the 25th of April, 1842, and was, on the same day, acknowledged before a justice of the peace, whose certificate is in the following words: “ Personally appeared before me, Daniel Moore, an acting Justice of the Peace in and for said county, Mrs. Ann McWillie, widow, trading and acting for herself, who, in my presence, signed, sealed, and delivered the foregoing instrument of writing as her own act and deed, and for the purposes therein specified.” The grantor died on the 5th of October, 1844, and the deed was filed for record two days after that event. The record contains no further proof of the delivery of the deed. Abram A. McWillie lived on the same place with the grantor, when the deed was executed, and when she died. There was no evidence, nor an attempt at proof, that the slaves specified in the deed, were ever delivered to any person interested under it. On the contrary, in accordance with the reservation in the deed, the evidence tends strongly to show that, in point of fact, there never was a delivery of the property embraced therein.
The questions arising upon those facts respect the validity, due execution, and delivery, of the instrument under which the adverse claim of Mrs. Sarah J. McWillie and the appellant is set up. We
We entertain no doubt that the instrument in question is to be regarded as a voluntary deed, and not a conveyance of property, based upon a consideration deemed valuable in law. It is what the law recognizes as a deed of gift. The proposition to be solved, therefore, is whether a gift or a donation of chattels personal, without delivery of possession to the donee, by deed of gift which reserves possession to the donor for life, is valid, under the law of this State ?
A gift of a chattel personal is the act of transferring the right and possession thereto; whereby one man renounces, and another man acquires, immediately, all right and title thereto. No consideration is necessary to support it; and if made bona fide, and there is an immediate delivery of possession, it is good against the world. But if the gift does not take effect by immediate delivery of possession, it is then not a gift, but a contract./ The subject of the gift must be certain, and there must be the mutual consent and concurrent will of both parties. Delivery of possession to the donee, was essential to the validity of a gift of a chattel personal. This was, unquestionably, the rule at common law, in regard to gifts by parol. But a distinction has been taken, in some of the English cases, between gifts by parol and by deed; and it has been hinted or assumed, that a gift of a chattel might do, without delivery, if made by deed, or in writing. Flower’s Case, Noye’s Rep. 67 (cited by Kent); Irons v. Smallpiece, 2 Barn. & Alder. 551. This rule, as a principle of the common law, at best, rests upon slender authority, and by Chancellor Kent is denied to exist. 2 Kent’s Comm. 439. However this may be, no doubt can be entertained as to the doctrine of this court on the subject for the last twenty years; as no distinction has ever been recognized between the gift of a chattel personal, by parol or by deed. In all cases, in which the question has come directly before the court, and where its determination was necessary to a disposition of the case, it is held, that delivery of possession is essential to the validity of a gift, whether attempted to be made by parol, or by an instrument in writing. Marshall v. Fulgham, 4 How. 216; 2 Ib. 745 (Thompson v. Thompson); Cara
In the two first cases, the question arose upon deeds which purported to convey the property donated, absolutely, without any condition or reservation of possession to the donors. In the third case, the words, “ under my own proper guardianship and protection,” were inserted after the habendum in the deed of gift, which, it is manifest, was equivalent to a reservation of the possession, until the donor should see proper to perfect the gift, by a delivery of the property specified in the deed. The charges given in the court below, raised, directly, the question whether the deed was operative, or not, unless there had been a delivery; and it w'as distinctly held, and stated to be the settled doctrine of this court, that a delivery, either actual or constructive, was essential to the validity of a gift; and of course, whether the gift was by parol, or an instrument of writing; as the question then under consideration arose upon a deed duly executed and recorded. The court say, in that case, “ As between the donor and donee, the gift of a chattel is incomplete, without delivery, or some act equivalent to a delivery, if at the time the thing be susceptible of transmission. We do not say, that actual delivery is necessary; it may be constructive, or symbolical. Perhaps the delivery of a deed, or having it recorded, might be regarded as circumstances sufiicient to amount to a delivery, or to justify the presumption that a delivery had been made. We only decide, that delivery, actual or constructive, is necessary.”
• The fourth case, Haley v. Brown, presented the precise question under consideration. In that case, there was no written opinion; but it was decided expressly upon the authority of the case previously cited. The case of Newell v. Newell recognizes the doctrine held in all the preceding cases; that is, that “ a gift is never complete without a delivery of the property.”
It has been supposed, that the Statute of Frauds (H. Code, 637, sec. 2), has an impoi’tant bearing upon the subject. The expressed and manifest object of that statute, was to protect creditors and purchasers without notice, against frauduleht sales and voluntary gifts. For this purpose, the statute requires that possession shall remain with the donee, or a deed duly executed and recorded, as
As delivery is the act by which the donor parts with his title and possession to the subject of a donation, and the donee acquires the right and possession thereto, it seems too plain for controversy, that if a deed of gift which purports to transfer the possession and title to a chattel, to take effect in presentí, be inoperative, unless delivery be made to the donee; a deed of gift of chattels, which purports to convey a present interest, to take effect, in possession, upon some future event, where possession is not delivered, but is expressly reserved to the donor, must also be invalid.
As this is incontrovertibly true, in order to avoid a very palpable inconsistency, we would be- driven to hold that the gift, in either case, is void without delivery of possession, or that a delivery is not necessary to the validity of a gift of a chattel personal. But if we adopt the latter alternative, we disregard a plain principle of the common law, and discard a doctrine of this court, which has been acted upon, by citizens, clients, and counsel, for near a quarter of a century, as the settled law of the land.
Our decision in the recent case of Wall v. Wall, 30 Miss. 91" court="Miss." date_filed="1855-12-15" href="https://app.midpage.ai/document/wall-v-wall-8256873?utm_source=webapp" opinion_id="8256873">30 Miss. R. 91, has been cited as holding an adverse doctrine on the subject.
In that case, the main question was, whether a certain instrument, admitted to probate, as the last will and testament of the deceased, was “in law a deed, or a will.” The question, whether the instrument was a will, or not, was clearly not dependent upon the further queétion of the validity of the instrument, if held to be a deed, and not a will. The legitimate investigation of this court necessarily terminated with the conclusion, that the instrument was a deed,' and not a will. It could not properly decide upon its validity, as an instrument of that character, as no such question could have been raised or decided in the Court of Probates. Under
The common law of England, modified by the peculiar genius of our institutions, and altered by special legislative enactments, constitutes the great body of our municipal jurisprudence. This court, in its adjudications upon the subject under consideration, has adopted as a rule of decision, an acknowledged principle of the common law, which, it is manifest, is not repugnant to the genius of our government, and which it is believed has never been altered by the legislature. Clearness and correctness in the exposition of the law, and the just application of its true principles in the settlement of controversies, is a high duty imposed upon courts. But at the same time, wisdom and sound policy require certainty and stability in their decisions. If, therefore, we were doubtful of the expediency of the law, and even questioned the correctness of the doctrine of this court upon the subject, we should, nevertheless, at this day feel bound to adhere to it.
This view of the subject renders further examination unnecessary.
Decree affirmed.
Concurrence Opinion
delivered the following opinion:—
While I concur in the opinion of the chief justice, upon the first and second points stated in that opinion, and in the conclusion, that the judgment should be affirmed, I cannot agree with the views stated upon the third point considered in the opinion, and will briefly state my view of the subject.
The question is, is a deed of gift, signed, sealed, and delivered by the donor to the donee, conveying personal chattels to the donee, but reserving possession to the donor for a specified time, valid, as between the donor and donee, to transfer to the latter the title to the property ?
It is true, that the negative of this proposition is held by the cases of Thompson v. Thompson, 2 How. 737, and Marshall v. Fulgham, 4 Ib. 216. In the former of these eases, it is to be observed, the instrument under which the title was claimed, was not in law a deed, and could not import any of the legal efficacy of a
In Marshall v. Fulgham, there was no reservation of possession to the donor, in the deed; but it is broadly held, that if a deed does not take effect by immediate delivery of possession of the chattel, it is not a gift, but a contract.
The authority on which this rule is stated, is 2 Bl. Comm. 442. But it appears to be evident, from the context, that Blackstone referred to gifts by parol, in the passage cited, and when he says that a true and proper gift is always accompanied by delivery of the chattel; for he states, as a reason for it, that then “ it is not in the donor’s power to retract it.” He further states, that without delivery, it is not a gift, but a contract. Yet he shows in the same chapter, that if it be by deed, though voluntary, it imports a consideration, and the donor is bound-by it. So that the general remark, in relation to the necessity for delivei’y of possession, must have been made with reference to what he denominates “ a true and proper gift” — a naked, simple gift — by parol; for he lays it down, as the general rule, that gifts of chattels may be made, “ either in writing, or by word of mouth, attested by sufficient evidence, of whieh delivery of possession is the strongest and most essential.” It is, therefore, only in point of evidence of the fact that the gift has been made, that delivery of possession is essential. But it does not follow, that that fact may not be shown by other evidence than delivery of possession.
He says but little, as to gifts by wiiting or deed, because such instruments are such clear evidence of the title conveyed by them, that they would speak for themselves, and required nothing to be said, as to their nature and effect, -which were governed by the general rules applicable to deeds. But it was different with respect to parol gifts. Being doubtful and uncertain as to their true character, and as to the evidence upon which they rested, it was necessary that some decisive act, showing clearly that the donor intended that the chattel should be the property of the donee, should appear ; and that act, in such a case, was the delivery of possession. But, in the case of a conveyance by deed, the nature of the title is rendered certain to the donee, and the donor is thereby estopped from setting up title, contrary to the terms of his solemn deed.
If, however, a gift by deed be regarded as a contract, as stated, it can make but little difference, as between the donor and donee, by what name the act is designated; for if it be a contract, it would bind the donor, and, in equity, the donee would take the use and possession of the chattel which the donor had contracted to convey, agreeably to the terms of the contract; and, as to creditors and subsequent purchasers, the deed, if recorded, and made bona fide, is rendered valid, by the positive provisions of the Statute of Frauds.
But the rule, as stated in Marshall v. Fulgham, is not sustained by the subsequent cases in this court. In Carradine v. Collins, 7 S. & M., it is said: “As between donor and donee, the gift of a chattel is incomplete, without delivery, or some act equivalent to delivery." “ The delivery may be constructive, or symbolical. Perhaps the delivery of a deed, or having it recorded, might be regarded as circumstances sufficient to amount to delivery, or to justify the presumption that delivery had been made. We do not decide what is a sufficient delivery, or what is sufficient evidence that it was made. We only decide that delivery, actual or constructive, is necessary.” And this doctrine is sustained, by reference to the cases in 12 Johns. 188" court="N.Y. Sup. Ct." date_filed="1815-05-15" href="https://app.midpage.ai/document/cook-v-husted-5473509?utm_source=webapp" opinion_id="5473509">12 John. 188, and 10 lb. 293.
It is worthy of remark, that the case cited in 12 John. Rep., was a title set up under a parol gift of a slave; and, with reference to such a gift, that court says, that “ a delivery of possession was necessary to a change of propertyand the case in 10 John. Rep., was a parol gift of a chose in action; and the court says, that, in such a case, “delivery of possession is necessary to constitute a valid gift.” But nothing is said, nor, indeed, could properly have been said, in either of these cases, as to the validity of a gift by deed, without delivery of possession of the chattel to the donee.
It would appear, from this case of Carradine v. Collins, that it was not considered to be necessary that there should be an actual delivery of the chattel, in order to render the gift valid, when it was made by deed, duly signed, sealed, and delivered; and this doctrine is amply sustained by authority and by sound reason.
The distinction as to the necessity for delivery, is clearly laid down in the elementary works. “A gift,” says Chitty, “is not good and binding, unless it be by deed; or unless the thing, which forms the subject of the gift, be actually delivered to the donee.” Chitty Contr. 52. The same rule is laid down in Williams on Personal Property, 33. It is also held by adjudications in England, as a rule of the common law: Irons v. Smallpiece, 2 Barn. & Ald. (4 Eng. C. L. Rep.) 552; Ward v. Audland, 16 M. & W. 871; and is fully sanctioned by adjudicated cases in this country: Banks v. Marberry, 3 Littell, 276; Bohn v. Headley, 7 Harr. & John. 257; Caines v. Marley, 2 Yerger, 582; Duncan v. Self’s administrator, 1 Marp. (N. C.) 466. And no adjudicated case has been produced, holding that a gift by deed, duly executed and delivered, without delivery of possession of the chattel conveyed, was not valid, by the rules of the common law, except it be Marshall v. Fulgham.
These authorities appear to be conclusive of the question, as a rule of the common law.
But the validity of such a gift is clearly recognized by our Statute of Frauds. ITutch. Code, 638, § 2. It enacts, that any conveyance of chattels, not upon valuable consideration, shall be taken to be fraudulent, as to creditors and subsequent purchasers, unless the same he ly deed, acknowledged and recorded, or unless the possession of the chattel should remain with the donee. This
The Statute of Frauds has indicated, in how far conveyances of the character in question were deemed impolitic and not to be countenanced. But, as between the donor and donee, irrespective of the claims of creditors and subsequent purchasers, no reason of sound policy appears to require that a donor shall not have the power, by deed duly executed and delivered, and especially if recorded, to convey his chattel by way of gift, to a person standing in such a relation of blood or kindred to him, as to constitute a good consideration, to take effect in possession at a specified time. Such settlements appear to be just and convenient as a mode of disposition of property, enabling the donor to dispose of his property deliberately, while in the enjoyment of his faculties, carefully fixing the terms upon which it should vest in possession in the donee, saving the trouble and expense of administration and distribution, and making an open declaration of the act; and, at the same time, assuring and making known to the object of his bounty, the portion of the donor’s property which he was- to receive, without the power of revocation. It is easy to perceive that, in such dispositions of property, nothing but justice would be done to those who should be the beneficiaries of the donor’s property, by securing it to their use beyond the power of revocation, but to take effect in possession at the time which the donor had seen fit to appoint.
Nor does this rule disturb any rights which may have been
Under these views of the subject, I am of opinion that the deed in this case, if it had been duly executed and delivered, would have, been valid, as between the donor and donee, to convey the slaves to the donee, to take effect in possession at the donor’s death.
But the question is raised, whether the deed was delivered by the donor, so as to render it effectual in law.
The facts touching this point, as they are shown by the record, appear to be, that the deed was signed, sealed, and delivered by the donor, in the presence of a justice of the peace, more than two years before her death; it was not filed for record in the Probate Clerk’s office until after her death; the husband of the donee, and a beneficiary of the deed, was the executor of the donor; and there is no proof of the delivery of the deed, except the certificate off the justice of the peace indorsed upon it, stating that the donor in his presence signed, sealed, and delivered it as her act and deed.
These facts are not sufficient proof of delivery. The certificate of the justice of the peace is rendered necessary by the statute, in order to admit a deed to record. But, in order to that, it is necessary that the deed should be acknowledged by the .donor or grantor, or proved by the subscribing witnesses, before a justice of the peace, who must certify that it has been acknowledged or proved. Hutch. Code, 606, § 7; 607, § 12. Unless the certificate of the officer state that it has been acknowledged, or proved, it is not in conformity to the statute, and the deed is not admissible to record. The statute contemplates that the signing, sealing, and delivery
The deed is highly beneficial to the donees, and if really delivered and intended to be acknowledged, it must have been done for the purpose of having it recorded. Yet, as it appears by the record, it remained for more than two years without record, during all which time the property was subject to be sold to any purchaser, or t.o be charged with debts, and the gift defeated; and it was not recorded until after the donor’s death.
It is, however, insisted that the point of delivery of the deed was not raised in the court below. That cannot be determined by the record. The appellant claimed title under the deed as an instrument duly executed and delivered, and it was incumbent on him to establish it as such. It does not appear from the record upon what ground the judgment below was founded; whether from insufficiency of the deed for want of delivery, or from the reservation of possession of the property, to the donor for life; nor does it appear that all the evidence before the court is presented in the record. But it would appeal’, from the proof offered by the appellees in relation to the time of the donor’s death, that the question of due execution and delivery was intended to be raised. But we cannot say from the record, that it was not made and decided; and, as it is now presented for decision upon the record, it is our duty to say whether the evidence is sufficient to establish the delivery of the deed.
This ease was decided after Judge Fisher had resigned, and before Judge Harris took his seat on the bench.