Brown v. Parker

^* Corpus Juris-Cyc. References: Witnesses, 40Cyc, p. 2311, n. 79; p. 2322, n. 83; p. 2329, n. 93. Appellee brought an action of replevin in the circuit court of Grenada county against appellant, as executrix of the estate of Mrs. Ida Phelan, to recover a certificate of stock in the Grenada Bank. At the conclusion of the evidence the court directed a verdict for appellee. Judgment was accordingly entered, from which appellant prosecutes this appeal. The following is deemed a sufficient statement of the controlling facts of the case to develop the question for decision:

H.M. Parker, a brother of appellee, borrowed five hundred dollars from Mrs. Ida Phelan, of whose will appellant is executrix, for the payment of which sum he executed his note, to secure which he pledged as collateral four shares of the capital stock of Grenada Bank. The stock certificate for the four shares so pledged stood in the name of appellee, and bore on its back a blank indorsement in her name. Before payment of the note Mrs. Phelan died, leaving a will. Appellant qualified as executrix of her will. Appellee, claiming to be the owner of the certificate of stock in question, and that the indorsement thereon was a forgery, brought this action of replevin against appellant to recover the same.

The evidence showed that W.K. Huffington represented Mrs. Phelan in making the loan to Parker; that Mrs. Phelan was not present, and, therefore, personally knew nothing of the transaction. The evidence also showed without conflict that appellee was not present during the negotiations for the loan, nor when it was consummated; that she knew nothing of the transaction. When the trial took place, H.M. Parker, maker of the note, was out of the state. His deposition had not been taken. Over the objection of appellant, appellee testified that the certificate of stock belonged to her, and that she had not indorsed it nor consented to its being used by her brother as security for the payment of his note to Mrs. Phelan. There being no conflict in the evidence to that effect, the court directed a verdict for the appellee. That action of the court is the ground for reversal relied on by appellant.

Appellant contends that appellee was incompetent as a witness under section 1917, Code of 1906 (section 1577, Hemingway's Code), which renders incompetent any person to testify as a witness to establish his own claim against the estate of a deceased person which was originated in the lifetime of such deceased person.

Appellee's position is that under the statute she was not barred from testifying that the alleged indorsement on the back of the certificate of stock was a forgery; that the statute only rendered her incompetent as a witness as to transactions had directly and personally between her and the deceased, Mrs. Phelan; that she was rendered incompetent as a witness only as to such matters in reference to which Mrs. Phelan was prevented from testifying on account of her mouth being closed by death; that the latter, if living, could not have given testimony with reference to whether the indorsement on the certificate of stock was forged or not, because she had no knowledge touching that question. Putting it differently, appellee's contention is that under the statute the mouth of the living party to the transaction is only closed as to such matters as the mouth of the dead party has been closed by death; that appellee's testimony was addressed to no such transactions, and, therefore, it was competent.

There is no decision of this court which has given the statute such a narrow construction. The statute does not render the witness seeking to establish his own claim against the estate of a deceased person incompetent alone to give testimony as to conversations, contracts, and other transactions had with the deceased person. The witness is incompetent under the statute not only as to those matters but as to any and all facts, circumstances, and transactions occurring during the lifetime of the deceased having a tendency to establish the claim of the witness against the estate of such deceased person, whether such facts, circumstances, and transactions took place with, or in the presence of, the decedent or not. Jacks v. Bridewell, 51 Miss. 881; Rushing v.Rushing, 52 Miss. 329; Rothschild v. Hatch, 54 Miss. 554;Duncan v. Gerdine, 59 Miss. 550; Ellis v. Alford,64 Miss. 8, 1 So. 155; Jackson v. Smith, 68 Miss. 53, 8 So. 258;Neblett v. Neblett, 70 Miss. 572, 12 So. 598; Wetherbee v.Roots, 72 Miss. 355, 16 So. 902; Saffold v. Horne, 72 Miss. 470, 18 So. 433; Watson v. Duncan, 84 Miss. 763, 37 So. 125;Baldridge v. Stribling, 101 Miss. 666, 57 So. 658;Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L.R.A. (N.S.) 187, Ann. Cas. 1916A, 1051; Kern v. Cooper,106 Miss. 895, 64 So. 838; Waldauer v. Parks (Miss.),106 So. 881.

In the Rothschild case the court said: "The reason the statute prohibits any person from proving his own claim against the estate of a deceased person is the same which made the common-law rule of exclusion on the ground of interest," etc.

In the Duncan-Gerdine case the court said: "It is not what the witness testifies to that makes him competent or incompetent under the statute, but it is the fact that the controversy is between the living and the dead; and the silence which death has imposed on the one the law imposes on the other; absolute equality is sought by the statute, and beyond this we did not go in the case cited."

We think the meaning of our decisions clearly is that the mouth of the living is closed not only as to transactions had between the living and the dead, but as to all matters taking place during the lifetime of the decedent. The determination of the question will not depend on whether the dead party, if living, would be able to give evidence touching the issue. A case can be well imagined in which the living witnesses might differ widely as to whether the dead person had cognizance of any of the material facts of the case. Such construction of the statute would make it in many cases most difficult of application.

We hold that, death having closed the mouth of the dead person as a witness as to all of the material facts of the case, the statute closes the mouth of the living party as to such facts occurring in the lifetime of the decedent.

It follows from these views that the trial court erred in permitting appellee to testify. She was incompetent under the statute.

Reversed and remanded.