McWillie v. Van Vacter , 35 Miss. 428 ( 1858 )

Smith, C. J.,

delivered the following opinion.

This was a proceeding, by petition, in the Court of Probates of Madison county, to compel the executor to deliver to the petitioners certain slaves, which they claimed as a specific legacy under the will of Mrs. Ann McWillie, deceased.

The petitioners alleged, that the testatrix, having made and published her last will and testament, in which she bequeathed to Ann J. Milcey, the wife of Owen Van Vacter, certain slaves, died in 1844; that the will was duly admitted to probate in said court, and that Abram A. McWillie was appointed sole executor by the will; that McWillie, qualified as the executor, took possession of said slaves, and continues to hold them; that all the debts of the testatrix have been paid, and that more than twelve months have elapsed since the date of his letters testamentary. The petitioners pray for a delivery of the slaves, with hire, or the payment of their value, and the amount of their hire.

A demurrer was filed to the petition, Avhich ivas sustained, and the petition dismissed. On appeal, the decree ivas reversed, and the demurrer overruled in this court. And the cause being remanded, the defendant filed his answer, in which he admitted that he was the executor, as charged ; denied that, as such executor, he held possession of the slaves claimed by the petitioner's, and refers to the inventory of the testatrix’s estate, returned by himself, as containing a true statement of the effects belonging to it. He alleged, that when she died, the testatrix was not seised of the slaves, and in support of this allegation, refers to, and makes it a part of his answer, a certain instrument alleged to have been executed by the testatrix on the 25th of April, 1842. As a further defence, he alleged that the bequest set up in the petition was invalid, for want of title in the testatrix; and referred to the will of Adam McWillie, deceased, a certified copy of which was made part of the answer. The defendant denied, further, that the debts were all p$id.

The cause was heard upon the petition, answer, and proofs; and a decree was rendered, by which the defendant was ordered to deliver up the slaves, and to pay a certain sum as compensation for their hire, or in default of such delivery and payment, to pay petitioners the value of the slaves and their hire, as determined by the decree. Whereupon an appeal was taken to this court; and a reversal of the decree is sought, upon grounds which we will proceed to consider.

It is first insisted that, in this proceeding, the inventory returned by the executor was conclusivo as to the description and value of the assets, for which he was accountable: and hence, as the slaves claimed as a specific legacy, were not returned by the executor as part of the testatrix’s estate, the court had no authority to go beyond the inventory, and order distribution of property not embraced in it.

We may admit the correctness of this doctrine, as applied to a similar proceeding in the ecclesiastical courts of England, whose powers and jurisdictions are restricted to much narrower limits, than the authority and jurisdiction of the Courts of Probates in this State.

In the absence of statutory directions, it is found convenient to adopt the modes of proceeding observed by those courts. But in questions concerning the jurisdiction of the Courts of Probates, we do not refer to the ecclesiastical courts of England, as an authoritative standard. The Constitution of the State is the common source of the authority and powers of all our courts; and hence, in all questions in regard to the extent of their respective jurisdictions, must determine the controversy. The jurisdiction of the Courts of Probates, over the estates of decedents, was intended by the Constitution to be full and ample; and has, by this court, been uniformly held to be, in the main, exclusive.

In all cases in which letters testamentary, of administration, or of collection, are granted, it is made the duty of the executor, administrator, or collector, within a limited time, to return an inventory of the assets of the estate in his hands. Hutch. Code, 661. The object of this provision of the statute, was to secure regularity and method in the management of decedents’ estates, to insure greater fidelity on the part of those intrusted with their administration, and to guard the rights of all parties interested, by furnishing means of accurate information, as to the value of any estate in the course of administration. The inventory, with the appraisement, when made out and returned agreeably to the directions of the statute, is made prima facie evidence of the value of the estate, in all suits by or against an executor, or administrator. But in no case, nor in any court, is the inventory declared to be conclusive evidence. Hutch. Code, 661, § 77. And as early as 1848, upon an application, by petition, in the Court of Probates, to compel the respondent, as executrix, to file an additional inventory of the estate of her testator, it was held, that the Court of Probates had jurisdiction over the subject, and powrnr to compel a full inventory to be filed. Killcrease et al. v. Killcrease, 7 How. Miss. R. 311. This was a direct decision upon the question under consideration, and its propriety has never been questioned in any subsequent adjudication.

It is true, in the case above cited, that the application was to compel the executrix to file a full and correct inventory, and not for distribution of assets not inventoried, as in the case at bar. But we apprehend this difference, under the circumstances of the present case, can have no important bearing upon the power of the court, to order a delivery of the slaves in controversy, to the petitioners, if in all other respects their claim be deemed valid. Here it is alleged that the executor, in his character as such, took possession of the property, claimed as a specific legacy, and that he is still in the possession of it. The court had jurisdiction of the person of the executor’, and, of consequence, its authority extended to all property in his possession, which rightfully constituted part of the testatrix’s estate. Assuming, for the present, that the property in controversy was assets of the decedent’s estate, to which the petitioners were entitled under the will, as a specific legacy, and that the executor took possession, and still holds possession, it would be mere trifling to hold, that before he could be called upon for a delivery of the property, he should be compelled to return a full inventory in which it would be embraced.

In the second place, it is insisted that the decree should be reversed, for the reason, that the court had no power to adjudicate upon the title to the slaves in controversy, to which an adverse claim was set up.

It is conceded, that the Courts of Probates have no jurisdiction to decide upon the validity of titles, or the validity and construction of contracts, in a direct proceeding; but, that those Courts, in the discharge of the duties imposed upon them, by the Constitution and the laws made pursuant thereto, have the power, incidentally to try title, and to adjudicate upon the validity and construction of contracts, has never been questioned by any decision of this court. We have seen that the inventory is but prima facie evidence of the description and value of the estate, and that it may, by other evidence, in any suit by or against an executor or administrator, be shown to be false. All the cases recognize the poiver of those courts, to compel the executor or administrator to make a correct and full inventory of the assets of the estate in his hands. Killcrease v. Killcrease, 7 How. 311; Burnett v. Strong, 26 Miss. R. 116; Anderson v. Duke, 28 Ib. 87; Snodgrass v. Andrews, 30 Ib. 487. It is manifest that these cases, in effect, recognize the authority to adjudicate upon the title of property in the possession of the executor or administrator, which is alleged to be assets of the estate of the testator or intestate. For otherwise, the jurisdiction of the Courts of Probates, in this respect, would be utterly nugatory. The case of Hill v. Hardy & Williams, 34 Miss. R. 289, is a direct decision upon the question. In that case, it was held, that in matters connected with orphans’ business, and the administration of decedent’s estates, wrhere the question is incidentally presented, the Court of Probates has jurisdiction to try title, and to determine upon the validity and construction of contracts.

In the case at bar, the property claimed as a specific bequest, was in the possession of the testatrix at the time of her death, and went into the hands of her executor, who still held possession when the petition was filed. Under these circumstances, there can be no dispute, that, in a proceeding to compel him to return an inventory of it, the court would have jurisdiction to decide upon the testatrix’s title. This being established, it follows necessarily, that the court would have the same power in an application for distribution.

In the third and last place, it is contended, that conceding the authority of the court to go into the investigation of title, the decree was erroneous, upon the facts established by the evidence in the cause.

The adverse title set up, and upon which the assumption is based, that the property in question was not assets of the estate, and therefore not subject to distribution, arises under the deed of gift referred to in the defendant’s answer. That deed purports to be founded upon the love and affection, which the donor or grantor bore to the donee, Mrs. Sarah J. McWillie, her daughter-in-law, and the further consideration of one dollar. It conveyed certain slaves, including those in controversy, to Mrs. Sarah J. McWillie, for life, with remainder to a trustee, for the use of the appellant, Abram A. McWillie, and reserving to the grantor during her life the possession and control of the property. It bears date on the 25th of April, 1842, and was, on the same day, acknowledged before a justice of the peace, whose certificate is in the following words: “ Personally appeared before me, Daniel Moore, an acting Justice of the Peace in and for said county, Mrs. Ann McWillie, widow, trading and acting for herself, who, in my presence, signed, sealed, and delivered the foregoing instrument of writing as her own act and deed, and for the purposes therein specified.” The grantor died on the 5th of October, 1844, and the deed was filed for record two days after that event. The record contains no further proof of the delivery of the deed. Abram A. McWillie lived on the same place with the grantor, when the deed was executed, and when she died. There was no evidence, nor an attempt at proof, that the slaves specified in the deed, were ever delivered to any person interested under it. On the contrary, in accordance with the reservation in the deed, the evidence tends strongly to show that, in point of fact, there never was a delivery of the property embraced therein.

The questions arising upon those facts respect the validity, due execution, and delivery, of the instrument under which the adverse claim of Mrs. Sarah J. McWillie and the appellant is set up. We will first direct our attention to the character of the instrument itself, as our conclusions upon that subject may dispense with any further investigation.

We entertain no doubt that the instrument in question is to be regarded as a voluntary deed, and not a conveyance of property, based upon a consideration deemed valuable in law. It is what the law recognizes as a deed of gift. The proposition to be solved, therefore, is whether a gift or a donation of chattels personal, without delivery of possession to the donee, by deed of gift which reserves possession to the donor for life, is valid, under the law of this State ?

A gift of a chattel personal is the act of transferring the right and possession thereto; whereby one man renounces, and another man acquires, immediately, all right and title thereto. No consideration is necessary to support it; and if made bona fide, and there is an immediate delivery of possession, it is good against the world. But if the gift does not take effect by immediate delivery of possession, it is then not a gift, but a contract./ The subject of the gift must be certain, and there must be the mutual consent and concurrent will of both parties. Delivery of possession to the donee, was essential to the validity of a gift of a chattel personal. This was, unquestionably, the rule at common law, in regard to gifts by parol. But a distinction has been taken, in some of the English cases, between gifts by parol and by deed; and it has been hinted or assumed, that a gift of a chattel might do, without delivery, if made by deed, or in writing. Flower’s Case, Noye’s Rep. 67 (cited by Kent); Irons v. Smallpiece, 2 Barn. & Alder. 551. This rule, as a principle of the common law, at best, rests upon slender authority, and by Chancellor Kent is denied to exist. 2 Kent’s Comm. 439. However this may be, no doubt can be entertained as to the doctrine of this court on the subject for the last twenty years; as no distinction has ever been recognized between the gift of a chattel personal, by parol or by deed. In all cases, in which the question has come directly before the court, and where its determination was necessary to a disposition of the case, it is held, that delivery of possession is essential to the validity of a gift, whether attempted to be made by parol, or by an instrument in writing. Marshall v. Fulgham, 4 How. 216; 2 Ib. 745 (Thompson v. Thompson); Caradine v. Collins, 7 S. & M. 428; Newell v. Newell, 34 Miss. R. 385; Haley v. Brown (not reported).

In the two first cases, the question arose upon deeds which purported to convey the property donated, absolutely, without any condition or reservation of possession to the donors. In the third case, the words, “ under my own proper guardianship and protection,” were inserted after the habendum in the deed of gift, which, it is manifest, was equivalent to a reservation of the possession, until the donor should see proper to perfect the gift, by a delivery of the property specified in the deed. The charges given in the court below, raised, directly, the question whether the deed was operative, or not, unless there had been a delivery; and it w'as distinctly held, and stated to be the settled doctrine of this court, that a delivery, either actual or constructive, was essential to the validity of a gift; and of course, whether the gift was by parol, or an instrument of writing; as the question then under consideration arose upon a deed duly executed and recorded. The court say, in that case, “ As between the donor and donee, the gift of a chattel is incomplete, without delivery, or some act equivalent to a delivery, if at the time the thing be susceptible of transmission. We do not say, that actual delivery is necessary; it may be constructive, or symbolical. Perhaps the delivery of a deed, or having it recorded, might be regarded as circumstances sufiicient to amount to a delivery, or to justify the presumption that a delivery had been made. We only decide, that delivery, actual or constructive, is necessary.”

• The fourth case, Haley v. Brown, presented the precise question under consideration. In that case, there was no written opinion; but it was decided expressly upon the authority of the case previously cited. The case of Newell v. Newell recognizes the doctrine held in all the preceding cases; that is, that “ a gift is never complete without a delivery of the property.”

It has been supposed, that the Statute of Frauds (H. Code, 637, sec. 2), has an impoi’tant bearing upon the subject. The expressed and manifest object of that statute, was to protect creditors and purchasers without notice, against frauduleht sales and voluntary gifts. For this purpose, the statute requires that possession shall remain with the donee, or a deed duly executed and recorded, as notice to the world that the gift was made. It is clear, that the statute does not attempt to change the rule at common law, which makes delivery to the donee essential to the validity of a gift of a chattel personal. It proceeds upon the presumption, that a valid gift has been made; and provides that the gift, however valid, shall not stand against creditors and purchasers, unless possession shall remain with the donee, or the gift be evidenced by deed duly executed and recorded. It is, hence, manifest that the statute has no application to the subject.

As delivery is the act by which the donor parts with his title and possession to the subject of a donation, and the donee acquires the right and possession thereto, it seems too plain for controversy, that if a deed of gift which purports to transfer the possession and title to a chattel, to take effect in presentí, be inoperative, unless delivery be made to the donee; a deed of gift of chattels, which purports to convey a present interest, to take effect, in possession, upon some future event, where possession is not delivered, but is expressly reserved to the donor, must also be invalid.

As this is incontrovertibly true, in order to avoid a very palpable inconsistency, we would be- driven to hold that the gift, in either case, is void without delivery of possession, or that a delivery is not necessary to the validity of a gift of a chattel personal. But if we adopt the latter alternative, we disregard a plain principle of the common law, and discard a doctrine of this court, which has been acted upon, by citizens, clients, and counsel, for near a quarter of a century, as the settled law of the land.

Our decision in the recent case of Wall v. Wall, 30 Miss. R. 91, has been cited as holding an adverse doctrine on the subject.

In that case, the main question was, whether a certain instrument, admitted to probate, as the last will and testament of the deceased, was “in law a deed, or a will.” The question, whether the instrument was a will, or not, was clearly not dependent upon the further queétion of the validity of the instrument, if held to be a deed, and not a will. The legitimate investigation of this court necessarily terminated with the conclusion, that the instrument was a deed,' and not a will. It could not properly decide upon its validity, as an instrument of that character, as no such question could have been raised or decided in the Court of Probates. Under these circumstances it is clear, that whatever expressions may have been used, it was not our intention to overrule the previous decisions on the subject of gifts.

The common law of England, modified by the peculiar genius of our institutions, and altered by special legislative enactments, constitutes the great body of our municipal jurisprudence. This court, in its adjudications upon the subject under consideration, has adopted as a rule of decision, an acknowledged principle of the common law, which, it is manifest, is not repugnant to the genius of our government, and which it is believed has never been altered by the legislature. Clearness and correctness in the exposition of the law, and the just application of its true principles in the settlement of controversies, is a high duty imposed upon courts. But at the same time, wisdom and sound policy require certainty and stability in their decisions. If, therefore, we were doubtful of the expediency of the law, and even questioned the correctness of the doctrine of this court upon the subject, we should, nevertheless, at this day feel bound to adhere to it.

This view of the subject renders further examination unnecessary.

Decree affirmed.