65 So. 273 | Miss. | 1914
delivered the opinion of the court.
Mrs. M. E. Peavey made a will December 5, 1899,. by which she devised all of her property, except some
“The State of.Mississippi, Monroe County.
“Know all by these presents, for and in consideration of one dollar paid to me, love, affection, and certain services rendered, have this day sold to H. P. Pace the following described property, to wit: All of my household and kitchen furniture, except two feather beds and steads, all live stock, such as horses, mules, cattle, hogs, etc., one surrey and one buggy, also all trust deeds, notes, accounts, and cash money, or so much thereof as I may possess at the time of my death. To have and to hold against the claims or demands of any person or persons whatsoever, and to his heirs- and assigns forever. Witness my signature, January 16, 1900.-
“M. E. Peavey.
“I hereby certify M. E. Peavey signed the above document before me this the 18th day of January, 1900.
“K. W. Eikneb, Justice of 'the Peace.”
On December 30, 1910, Mrs. Peavey departed this life. After the death of the testator, her will was probated, and Mr. Paine qualified as executor.
During the last illness of Mrs. Peavey she sent for H. P. Pace, appellant, and delivered to him two notes, payable to her and signed by Sam Billups, and also her bank book, showing that she had on deposit in the Bank of Aberdeen five hundred and two dollars and forty cents, saying to him in the presénce of others that she wanted bim (H. P. Pace) to have all she had when she •died. It is claimed by appellees that there is some conflict in the evidence as to whether or not Mrs. Peavey •delivered one of the Sam Billups notes- to Mr. Pace; but we think it is clear, from a reading of the abstract of the testimony of Mrs. Johnston about the Sam Billups
The only question left for decision is: Did she succeed in carrying out her purpose! It makes no difference whether she made or attempted to make a gift inter vivos, or causa mortis, as the result will be the same. We think, however, she was making, or attempting to-make, a gift causa mortis. Doing back to the bill of sale-executed January 16,. 1900, we are of opinion that this-instrument is only • significant in establishing that Mrs. Peavey then intended to make II. P. Pace her heir, and. the notes, trust deeds, accounts, and money mentioned referred to the money and evidences of debt she then possessed. The evidence, -however, shows that Mrs. Peavey in her last illness still desired to make II. P. Pace heir of all she had at her death.
After the death- of Mrs. Peavey, Mrs. Bowen, who: nursed her during her last illness, claimed that she was entitled to five hundred dollars out of her estate, and appellant agreed- .with the executor and his brother that she should be paid out of the money in the hands of the executor:- It also appears that the will was probated with appellant’s consent,- that appellant agreed to take under the will, and that he delivered to the executor the notes in-controversy. It is insisted that appellant is now estopped to claim the notes, because he-delivered them to the- executor and made no claim to the-notes at the time he turned them over to Mr. Paine. "We-are unable to discover any of the elements of estoppel in this transaction. Nobody was misled to his prejudice,, or caused to give up anything because of his failure to-claim the notes, or by his agreeing to the probate of the-will. There is no contention that the instrument offered
The delivery of the notes to appellant perfected the gift of same, and the chancellor erred in holding to the contrary. 20 Cyc. 1206; Ashbrook v. Ryon’s Adm’r, 2 Bush (Ky.), 228, 92 Am. Dec. 481.
It is claimed that the delivery of the bank book, evidencing the credit which the donor had in the bank of deposit and discount, sufficed to transfer this claim to appellant. The gift of such a bank book is not a sufficient delivery to sustain a gift causa mortis. Jones v. Weakley, 99 Ala. 441, 12 So. 420, 19 L. R. A. 700, 42 Am. St. Rep. 84; 20 Cyc., p. 1205. In the case of Ashbrook v. Ryon’s Adm’r, 2 Bush (Ky.), 228, 92 Am. Dec. 481, the court differentiates the effect of the delivery of notes and the delivery of bank books. In that case the Kentucky court used language which seems to be pertinent to the criticism by appellees of the evidence in this case, which we quote:
..“It is true that there is, as is usual, some difference in the statements of these various witnesses as to minor facts; but, instead of this impairing the value of their evidence on the'main facts, it goes to preclude the idea that the evidence was manufactured.”
The manifest intention of Mrs. Peavey was to give H. P. Pace all she possessed at the time of her death; but mere intention to give is insufficient to perfect a gift causa- mortis. There must be a legal delivery of the tiling given, and the delivery of the bank book, with a statement that she wanted him to have all she had, was not a delivery of her claim against the bank.
We can see no -inconsistency in "agreeing to the probate of the will of Mrs. Pace and the claim'of appellant to her property. He is entitled to what she gave him by reason of the perfected gift, and he is entitled to one-half of the property disposed of by the will, because the will so provides. The effort of Mrs. .Peavey to dispose
Reversed.
