Johnson v. Grice , 140 Miss. 562 ( 1925 )

^* Headnotes 1. Gifts, 28 C.J., Sections 92, 103, 104, 118; 2. Gifts, 28 C.J., Section 128; Requisite of gifts causa mortis, see 25 A.L.R., p. 645; 12 R.C.L., p. 958 et seq.; 2 R.C.L. Supp., p. 1518; 4 R.C.L. Supp., p. 780; 5 R.C.L. Supp., p. 667. 3. Gifts, 28 C.J., Section 125. Gift causa mortis cannot avail against creditors, see 12 R.C.L., p. 968. The petition filed in the chancery court of Lincoln county by Barney Grice, administrator of the estate of N.C. Collins, deceased, showed that the decedent at the time of his death was the owner of two promissory notes executed by Jim Gray in favor of the decedent for one hundred twelve dollars and fifty cents, one of which became due and payable March 1, 1925, and the other March 1, 1926. The petition further showed that said notes were executed as a balance of the purchase money of certain lands sold to the said Gray by the said decedent. The petition further showed that claims had been probated and filed against the estate, and at the time of filing the petition it did not appear whether the estate would be solvent or not. The petition further set up that the defendant, Willie Johnson, claimed said notes by virtue of some assignment or other transfer, the nature of which was unknown. The petition further showed that the note due March 1, 1925, had been paid to the administrator, and that he was entitled to the possession of the note due on March 1, 1926.

The answer set up briefly that immediately upon the execution and delivery of said notes by Gray to Collins the decedent, Collins, got Gray's wife to write defendant a letter and inclose said notes so that she (Willie Johnson) would be the sole owner thereof. She further averred that the notes were not delivered to her solely as a gift, but that she had been reared by the said Collins and lived with him and by her labor enabled him to acquire the lands which had been sold to Gray. She claimed the notes as her individual and exclusive property and asked that the administrator be directed to pay the proceeds of the note collected to her. On the back of these notes was the following indorsement:

"Wesson, Miss., March 1, 1924. In case of my death before this note matures, I hereby transfer and assign payment of same to Willie Johnson. [Signed] Nelson his

X Collins. Witness: [Signed] G.L. Hays." mark

The letter in which the notes were inclosed to Willie Johnson reads as follows:

"Wesson, Miss., March 9, 1924.

"Dear Willie: To-night I will rite you a few lines to let you hear from me. This leaves my family fairly well and hope this will find you and Lennette injoying the Blessings from God. I received your letter some days ago, also the deeds. Whi I hadent written you no sooner Mr. Collins had to get his deeds straighen up. They were so dem I think he had to have them prented over, so I were waiting untell he got every thing straight. Now we are buying the largest piece of land. We mad a one hundred dollar payment, and has 2 more notes to pay. Now I am sending you these 2 notes. You can see when they are due. When they are due you can send them back, one by one. Mrs. Collins told me to send them to you so if anything should happen you will be the successor. Mr. Collins is not so well. He went down to his brothers yesterday. He told me to give you his Love and say write to him. He will be at Sontag all this week. He say he think he will be at your house by Easter Sunday. If I were you I would try to keep him a while. Well I am so sleepy I must close. Tell Jennette to go and learn fast some day she will be a woman.

"Yours as ever, "ELSIE GRAY."

The record shows that N.C. Collins died some time in January, 1925; that at the time the letter was written, March 1, 1924, the negro was old and feeble; that Collins sent for Jim Gray, the maker of the notes, told him he did not expect to get well, and Gray remarked: "``I am owing you, what must I do about the payments?' and he said, ``I want you to pay it to Willie,'" meaning Willie Johnson, the defendant herein.

Willie Johnson was his stepgrandchild, and at the time the letter was written it is shown he was in feeble health, old and infirm, and evidently did not expect to live long.

The chancellor found that this was a conditional gift and entered a decree awarding the proceeds of the note which had been paid and the possession of the note not yet due to the administrator in this case.

We think it is clear from this record that this was a giftcausa mortis, because made by the old negro to his stepgrandchild in view of his death, and that in the event of his death before the notes matured he intended for Willie Johnson, his stepgrandchild, to have the proceeds of said notes. There was a completed delivery of the notes by the decedent to Willie Johnson. But on this record it makes no difference whether there was a gift inter vivos or causa mortis, as the result is the same. Pace v. Pace, 107 Miss. 292, 65 So. 273.

"Gifts causa mortis" are thus defined by 28 Corpus Juris, section 92, pp. 684, 685:

"A donatio causa mortis, liberally translated, means a gift in prospect of death. It is a gift of personal property made by a party in the expectation of death, then imminent, and upon the essential condition that the property shall belong fully to the donee in case the donor dies as anticipated leaving the donee surviving him, and the gift is not in the meantime revoked, but not otherwise. Such a gift Judge STORY describes as amphibious, that is between a gift inter vivos, and a legacy. A gift causamortis has some properties in common with gifts inter vivos, and some in common with legacies; but in its essential properties it is testamentary."

Such gifts are distinguished from testamentary disposition, in that they are always conditional upon death, but possession of the property bestowed must be delivered to the donee and retained by him during his lifetime.

28 Corpus Juris, pp. 685, 686, section 94, reads as follows: "While gifts causa mortis are in the nature of testamentary dispositions and have several characteristics in common with legacies, they differ from the latter in many important respects. A gift causa mortis resembles a legacy in that it is made in contemplation of death, is ambulatory, incomplete, and revocable at the option of the donor at any time during his life. On the other hand it differs from a legacy in several important particulars. Possession must be delivered to the donee and retained by him during the life of the donor, whereas in case of a legacy the possession remains with the testator until his decease; the claim need not be proved in a court of probate; the title of the donee becomes by relation complete and absolute from the time of delivery; no consent or other act on the part of the personal representative is necessary to perfect the title of the donee. It is a claim against the personal representative; a legacy is a claim from and through him. Although the donor has made a will disposing of all his personal property, a donation of this sort is good."

And the authorities cited in the notes to this section fully sustain the text.

The delivery of the notes to Willie Johnson with the written transfer thereon, together with the statement of the maker of the notes, constitutes in our opinion a gift causa mortis. Quoting this witness literally:

"He sent for me, and I went out there. I asked him if he expected to get well, and he said, ``No.' And I said: ``I am owing you. What must I do about the payments?' And he said, ``I want you to pay it to Willie.'"

So that we think the delivery and the statement to Gray, the debtor, constituted a completed gift causa mortis. But it appears that an administration of this estate was deemed necessary by the chancery court of Lincoln county, and that at the time of the trial of this case there were probated claims and the time within which the claims might be interposed had not expired, and it is well settled that neither gifts inter vivos norcausa mortis are effective or to be effectuated as against the rights of creditors, and the record makes it uncertain that the estate in the hands of the administrator will be sufficient to pay the debts.

We are therefore of the opinion that until the rights of the creditors can be ascertained, and for their protection, the administrator would be entitled to hold such notes or the proceeds thereof. We are sustained in this position by 28 Corpus Juris, p. 699, section 125; and also by 12 R.C.L., p. 968, section 40.

We hold that under the circumstances detailed above this was a gift causa mortis; that the notes belong to Willie Johnson subject to the rights of creditors to be hereafter determined by the chancery court; that the balance of the estate shall be exhausted before any part of the proceeds of these notes shall be subject to debts, but if it shall be ascertained that all or any part of the proceeds of these notes are necessary to liquidate the legal claims against the estate of the decedent, all or so much thereof as may be necessary shall be so applied; and if not so required to pay debts, then all or the remainder, if any, as the case may be, should be paid to Willie Johnson.

The decree of the court below will be reversed, and decree entered here, and the cause remanded to be proceeded with as herein indicated.

Reversed and remanded.