Prewett v. Coopwood

30 Miss. 369 | Miss. | 1855

Eisher, J.,

delivered tbe opinion of tbe court.

Tbe complainant, as administrator of John C. Cherry, deceased, filed this bill in tbe Vice Chancery Court at Eulton, for tbe purpose of recovering from tbe defendants certain property and money, which it is alleged they received from tbe intestate a short time before bis death.

Tbe defendants below demurred to tbe bill, and tbe court overruled tbe demurrer. Tbe causes of demurrer assigned are:—

1. Tbe bill does not show when tbe complainants took out letters of administration.

2. The bill does not make proferí of letters of administration.

3. Complainant has a remedy at law, and ;

4. “ Tbe bill is otherwise defective and ambiguous.”

It must now be presumed, that these were tbe only objections on argument of tbe demurrer in tbe court below, brought to tbe notice of tbe chancellor ; and hence other grounds of demurrer assigned in this court for tbe first time, should' never meet with tbe least favor, unless it be manifest that tbe court could take no jurisdiction over tbe subject-matter, or could not, under tbe well recognized principles of equity, grant relief on tbe case as made by tbe bill. These remarks are made with special reference to a point now made for tbe first time, by tbe appellant’s counsel, to wit: That it appears upon tbe face of tbe bill, that tbe object of tbe intestate, in placing bis property in tbe bands of tbe defendants, was to defraud bis creditors. Tbe allegations of tbe bill on this subject are as follows, to wit: “Your orator charges, that tbe said Abner Pre-wett and Mark Prewett, combining and confederating together to cheat and defraud tbe said John C. Cherry, in bis lifetime, and during bis last sickness, which was slow and protracted, and while be was generally debilitated in both body and mind, and bis days were evidently but few in this life, and availing themselves of that advantage, undertook to persuade and did persuade tbe said Cherry, and induce him to believe, that in tbe event of bis death, all of tbe slaves aforesaid, and tbe notes and money aforesaid, would be taken from bis wife and infant son, to pay debts for wbicb they alleged be was liable, as indorser for one Crane; all of wbicb was a a mere pretence, and only intended to alarm tbe fears and apprehensions of tbe said Cberry, and to influence bim to make such conveyance of tbe said negroes and money and notes, as would, in tbe opinion of tbe said Abner and Mark Prewett, vest tbe said property in them.” Tbe bill then proceeds to charge, that in virtue of these false and fraudulent representations,, tbe defendants obtained possession of tbe slaves, notes and money of tbe intestate. That they have continued to bold tbe same ever since, and have contributed nothing tot be support of tbe said widow and infant child, or to tbe payment of tbe debts, if any, of tbe intestate. Tbe demurrer admits tbe truth of tbe allegations, as they are made in tbe bill. Tbe defendants then admit by tbeir demurrer, that during tbe last sickness of tbe intestate, and while generally debilitated in body and mind, they falsely represented to bim that be was in-dorser for one Crane, when tbe truth was otherwise; and taking advantage of bis situation, induced bim to place bis property in tbeir possession, with tbe assurance that they would employ it for tbe support and benefit of bis widow and infant child. Tbe proposition established by these several allegations, is, that although tbe act of Cherry may appear to be fraudulent, yet he was induced by tbe false assertions and fraudulent conduct of tbe defendants to enter into tbe arrangement. Tbe question is, would tbe intestate, but for these false statements, and fraudulent conduct of tbe defendants, have made tbe disposition wbicb it is alleged was made, of bis property ? Tbe inference is very clear, that no such disposition would have been made. If therefore, tbe defendants were allowed at this late day to assign new causes of demurrer, this could not avail them. Assuming tbe allegations of tbe bill to be true, tbe defendants are accountable as trustees for tbe property and money, wbicb it is alleged they received.

Tbe point on tbe demurrer having been disposed of, a question of fact alone was presented for tbe consideration of tbe court below. Tbe case presenting a great variety of circumstances, as well as perhaps some conflict in tbe testimony, tbe chancellor directed an issue to be made up and sent to a jury for trial, in tbe Circuit Court of Monroe county. Tbe jury, after bearing tbe evidence, found a verdict in favor of Abner Prewett, and a verdict against Mark Prewett, for tbe sum of $4918, which being certified to tbe Yice Chancery Court, a decree was rendered thereon for tbe complainant, from which decree the present appeal has been prosecuted.

The first question at this stage of tbe case coming up for consideration is, whether the decree of- the chancellor is sustained by the testimony in the cause; and this must depend upon the fact, whether the verdict of the jury was warranted by the evidence ; by which is meant, not whether it was clearly right, but was it manifestly wrong ? The evidence consists mainly of the admissions of the defendant, which appear to have been but few, though he was frequently approached on the subject. To one witness he admitted, that he had the means of the infant son, amounting to about $1500; to another he made the same admission, except as to the amount, which he stated to be $2000, or 2500. To others, admissions were made, which, though not certain as to any particular sum, or duty which be intended to perform for the infant, yet enough appears to have been said to awaken suspicion. Admitting that the evidence is not as certain and direct as it is desired evidence should be, yet having been weighed and considered by a jury, supposed always to be conversant with the common transactions of life, and the motives which influence human action, and been by them pronounced sufficient, their verdict must stand, unless a clear preponderance in the evidence is shown the other way. We are not prepared to say that such is the case. Twelve minds, perhaps differently constituted, viewing the evidence in different lights, have concurred in pronouncing, that, considered as a whole, the evidence establishes the main fact put in issue by the pleadings.

But it is- said that there is no admission, that the defendant had in his possession any of the money or other effects of Cherry’s estate, and that therefore there was no evidence which would be sufficient to sustain the allegations of the bill. It is true, the admissions refer in direct language to the means of the infant son ; but if the jury credit the evidence, there is enough to show that the means constituted part of Cherry’s estate, and ought to be accounted for to the representative, and not merely to one of the distributees. Besides, such is not the position taken by his answer. If he intended it as a full and fair denial, he denies having received any of the money or other means of the estate, as charged in the bill. The bill charges, that he received what he obtained, for the widow and infant son. He denies — at least attempts to do so — this allegation. He is therefore estopped by his answer, to say that he is accountable, if at all, not to the representative, but to the infant son. When he said that he had the son’s money or means, he must be understood as merely saying, that he intended to account to the son for what he had received of the intestate’s estate.

It is again said by counsel, that but little weight ought to be given to the evidence, as it consists entirely of the admissions of the party. It has been frequently said, that such evidence may be either the weakest or strongest, when considered with due regard to all the surrounding circumstances. We assent fully to this rule; the value of every admission, as evidence, must depend more or less upon the circumstances under which it was made. It may be worth nothing, or irresistible, according to the situation of the partiés, or the circumstances attending it. These matters must, however, be considered, like the admission itself, by the jury. The court must decide whether testimony is competent to go to the jury, and they must determine the weight to be given to it; and of course in considering this question, they must consider all the circumstances under which it was made.':

The last point made by counsel is, that the court erred in ruling out certain evidence offered by the defendant. It appears that the widow of Cherry, about 1840 or 1841, stated to the witness, that her father, Lemuel Prewitt, had her money, (meaning her interest in the estate,) in his hands. Thé object of the evidence was to create the presumption that the defendant had not received so much of the estate, at least, as belonged to the widow. If she had been the only distributee, and the estate owing no debts, as is proved in this case, the evidence would have been admissible on tbe ground, that being tbe sole beneficiary in tbe estate, sbe could make admissions or do any other act affecting ber interest, which a legal owner of property could make or do. Tbat sbe could make no admission affecting tbe rights of a co-distributee, because sbe bad no power over bis interest. Tbe money, when collected, must be distributed under tbe authority of tbe Probate Court; and ber admissions ought not to be received to diminish the recovery, when sbe will share equally with an innocent party tbe amount recovered. Under this view of tbe law, tbe evidence was properly ruled out.

Decree affirmed.