Self v. King , 124 Miss. 874 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

Charles R. King departed this life seized and possessed of an estate of one hundred thousand dollars or thereabouts. He left a last will and testament in which he appointed P. M. B. Self and W. E. Savage as executors, and also made Mr. Self guardian of certain of his minor children, and devised and bequeathed certain sums to certain of his children, and in section 8 of the will he gave, devised, and bequeathed to his wife, the appellee, the homestead and all lots adjoining thereto, situated in the city of Okolona, Miss., and the furniture, carpets, rugs, and other fixtures thereunto belonging, during her widowhood or natural life, except the piano, and directed that his just debts and all special devises be paid out of money received from life insurance policies before general division was made, and then directed his estate to be divided into nine equal shares, one-ninth to his wife and one-ninth to each of his children, with the exception of one daughter, Mrs. Minnie King Burkitt, and devised her share .of his estate to her two minor children. After the death of the testator the executor brought an action for the recovery of one diamond and one automobile alleged to be the property of the deceased but in the possession of "the widow. The diamond was worth from eight hundred dollars to two thousand dollars, and the automobile about one thousand dollars. The answer denied the right of the complainant to recover the diamond and the automobile, and asserted that the widow was the owner of said diamond and automobile prior to the death of the testator.

On the trial the appellee proved by numbers of witnesses declarations by the decedent that he had given .her the diamond and the automobile. The deceased purchased the diamond from one McGahey, a railroad conductor, paying therefor, the sum of eight hundred dollars. Subsequent to this time Mr. King visited the home of Mr. and Mrs. McGahey in Mobile, Ala., and Mrs. McGahey testified that, Mr. King not having the diamond with him, she asked him why he did not have the diamond or why he was not wearing it, and he said to her that Mrs. King-had the diamond; that he had given it to her as a Christmas present. She also testified that she stated to Mr. King- that she thought he got a bargain in the diamond; that he said that, while he did not really need the diamond, he got it to help out Mr. McGahey and gave it to his wife as a Christmas present. .Several other witnesses testified to statements by Mr. King- as to his giving the automobile and the diamond to Mrs. King. Mrs. King-, of course, was incompetent to testify- and did not testify.

For the complainant it was proved that Mr. King usually wore the diamond, and it was’ also in proof that, after the death of Mr. King, Mr. Self discussed the matter with Mrs. King before the will was read, and she stated to him, according to his testimony that her husband, Mr. King, had willed, her the residence and all of the personal property, and that Mr. King had said that he wanted her son to have the diamond, and that she said that no one knew about this expression except herself. It also insisted that under the statute, section 2522, Code of 1906, section 2056, Hemingway’s Code, it is required that transfers of chattels between husband and wife shall not be valid unless the transfer be in writing and acknowledged and filed for record, and that the possession of the property shall not be equivalent to the filing of the writing for record, but to affect third persons the writing must be filed for record.

It is insisted, first, that the evidence is not sufficient to show a gift from Mr. King to Mrs. King; that to constitute a gift there must be a delivery of the property involved and an acceptance by the Other party to constitute a valid gift, and it is insisted that the proof is not sufficient to establish these facts.

We have examined the evidence in the record, and we think the proof sufficient to show a delivery and acceptance of both the automobile and the diamond. One of the witnesses resided in the home of' Mr. and Mrs. King for a .number of years and was a brother-in-law of Mr. King, being a conductor on the railroad, and spending every other night in this home, and who was in a position to know the understanding between the parties. The various declarations of Mr. King as to the gift are not disputed, but it was proven by the plaintiff that Mr. King.usually wore the diamond and that this is inconsistent with the possession of it by Mrs. King. We think the gift is proven by as much testimony as would be usually available for this purpose, and that the chancellor was warranted by the evidence in reaching the conclusion that there was a gift from Mr. King to Mrs. King.

We are then brought to the question: What effect does section 2522, Code of 1906, section 2056, Hemingway’s Code, have upon the transaction involved here? Does the phrase, “shall not be valid as against any third person,” embrace the heirs of the deceased husband? The right of the heirs to this property depends entirely upon the ownership of the property by Mr. King at his death. They are not in the attitude of creditors, purchasers., or any other class of persons who have a claim or right in or to the property antedating the death of Mr. King. The gift between husband and wife is valid as to each of them, though not in writing, and we think that the heirs of a person asserting claim against his estate solely by reason of their heirship, or by reason of a will not specifically mentioning the property, that they stand in the shoes, so to speak, of the deceased. They are not in position to make any claim to the property that he could not make himself if he were living. They are not third persons in such sense as to bring them within the purview of the statute. The phrase, “to affect third persons,” it is true, is broad and was intended, no doubt, to embrace other persons than creditors and subsequent purchasers. It would be broad enough to embrace any right affecting the property in question that antedated the death of the testator, but we think to bring persons within the purview of the statute there must be some valid claim upon which to found a right existing prior to the death of the testator.

The chancellor held in accordance with these views, and the judgment will be affirmed.

Affirmed.