Woods v. Sturges , 116 Miss. 412 ( 1917 )

Stevens, J.,

delivered the opinion of the court..

This appeal presents - for decision the validity of a promissory note in the sum of five thousand dollars, -executed by one Theodore Sturges in his lifetime, payable to appellant, H. J. Woods, upon demand. Appellant married the daughter of Theodore Sturges, but the daughter predeceased her father, who, in disposing of his estate, left a valid last will and testament which has been duly probated, and by which he devises and bequeaths his entire estate to his three living children and two grandchildren. His son, R. W. Sturges, and R. M. Bourdeaux, appellees herein, were appointed executors. The executors duly qualified, and as such instituted this suit in the chancery court of Lauderdale county, praying the cancellation and delivery up of the promissory note held by Mr. Woods. The bill charges that the note was executed without consideration, and evidences an unexecuted gift for five thousand dollars. Conceding for the purpose of this statement the competency of Mr. Woods as a witness, it appears from the testimony taken before the chancellor that the testator, Theodore Sturges, many years ago stated to Mr.'Woods that he (Sturges) desired to make Woods a gift, but in doing so he preferred not to mention or provide for the gift in his will, and requested Mr. Woods to consult an attorney to determine whether the gift could be made in the form of a promissory note. It appears from Mr. Woods’ testimony that he then accepted the note as a gift. , The original note was executed about 1909, and in 1915 the testator executed and delivered a renewal note payable upon demand. The renewal note was executed in January, 1915, and in December following Sturges duly- executed his will. The will makes no mention of the Woods note or of any gift to' Woods. After notice was published to creditors to probate claims, Woods filed his note with the chancery clerk and had the same registered and allowed. There is proof tending to show that after the death of the testator Mr. Woods admitted that his note was without consideration and invalid, and that he promised not to probate it. After its probate the executors exhibited a bill in this case to enjoin appellant from assigning or pledging the note to a third party and to cancel the same,. There is a controversy between the parties as to the competency of appellant as a witness, "but the law point determinative of this case renders unnecessary a discussion of any question save the one considered below. The chancellor decreed in favor of the complainants in the court below and disallowed appellant’s claim.

The most that could be said for appellant’s case is that Mr. Sturges, the testator, executed a demand note; that this demand note was intended to evidence a mere gratuity; that the note was duly delivered by the maker to the payee, but was not in fact intended to be paid, and was not paid, before the maker’s death. Can the note, therefore, be upheld as a gift inter vivosl The authorities answer this question in the negative. In the case note to Sullivan v. Sullivan, 122 Ky. 707, 92 S. W. 966, 7 L. R. A. (N. S.) 156, 13 Ann. Cas. 163, it is stated:

“The weight of authority at the present time has established as a general rule of law that one cannot make his own promissory note the subject of a gift to such extent that it can be enforced by the donee against the donor in the latter’s lifetime, or against his estate after his death.”

This was the conclusion reached by the Kentucky court in the Sullivan Case, there reported, and this conclusion is supported by numerous authorities cited in the footnote. One of the leading cases is Parish v. Stone, 14 Pick. (Mass.) 198, 25 Am. Dec. 378, where the court, by Shaw, C. J., very pointedly and accurately says:

“It was simply a promise to pay money, and as such, and as a gift of a sum of money, it wants the essential requisite of an actual delivery.”

There is a subsequent case note on checks and promissory notes as a subject of gift in 27 L. R. A. (N. S.) 308, and in this note the maker’s own check is placed in the same category as a promissory note. The authorities are abundantly collated in this note, and are against the contention of appellant in the present case. Counsel have not brought to our attention any decision of our own court where an alleged gift in the form of the maker’s own note has been considered. But the spirit and trend of our decisions point to the general rule, and place this court within the spirit of the case just referred to. In Meyer v. Meyer, 106 Miss. 638, 64 So. 420, the general rule that a gift must be completed by actual delivery was announced, and it was expressly held that profits.from business credited upon the books to the sons of one of the partners, but not actually paid over before death, could not be claimed as a gift; there being no delivery of the profits. It was there stated that:

The entry of the credit upon the books kept in the business “constitutes, at most, nothing more than a written evidence of the promise; and the written promise or declaration of an intention to give is no more valid or binding than a verbal one. It is simply easier to prove.”

That is the case here. The note relied upon is a written promise by the maker to pay appellant five thousand dollars. The promise was never executed, and indeed was not intended to be complied with, until after the maker’s death, although the maturity of the note was on the face thereof stated to be “on demand.” The same reasoning is employed in Kingsbury v. Gastrell’s Estate, 110 Miss. 96, 69 So. 661, where the court uses this expression:

“The gift was never consummated by delivery of the notes and the cancellation of the indebtedness.”

See, also, 3 R. C. L. p. 937, section 133, and authorities cited; 14 Am. & Eng. Enc. of Law (2 Ed.), 1030 and 1063.

The eases relied upon by appellant presented instances where there was a voluntary conveyance of land or other property by' the deceased in his lifetime, absolute conveyances, and delivery of property. In the case at the bar Mr. Woods lays no claim to any specific property conveyed to him, and he is in no wise named in the* will as one of the beneficiaries. To enforce now the unexecuted promise of the testator to pay appellant a sum of money would necessarily reduce the estate and take from the devisees that which.by solemn will has been expressly devised them.

There is no merit in any of the assignments of error, and the decree complained of is affirmed.

Affirmed.