Greene v. Greene

110 So. 218, 145 Miss. 87, 49 A.L.R. 565, 1926 Miss. LEXIS 2

• Court: Mississippi Supreme Court
• Decided: November 8, 1926
• Docket: No. 25684.
• Status: Published

Opinion

Etheidgei, J.,

delivered the opinion of the court.

M. A. Greene died intestate on March 27, 1921. He had been married three times, and left children by each marriage. His last wife filed, suit for herself and her minor children, Kittie Bell Greene, Boyd Greene, and Alston Greene, against the children of the other marriages of the deceased, for a partition of the property, and for tlie setting apart of the homestead to her. 'Certain of the children of the first two marriages had died, leaving descendants who were made defendants to the suit. The children who died since the death of their father were Dr. N. E. Greene and R. E. Greene. All of the children of the two first marriages at the death of the intestate were adults, except Miss Pollie Greene, who reached her majority a short while after the death of her father. The bill alleged that all of the children and the said wife were each entitled to one-eleventh interest in the said estate, and that all parties in interest were parties to this suit, except the two deceased children, Dr. N. E. Greene and R. E. Greene, whose descendants were made parties to the suit; that upon the death of R. E. Greene his one-eleventh interest in the said estate by his will became the property of Mrs. Annie Tyson, who by so acquiring obtained a two-elevenths interest in the said estate; that by the death of Dr. N. E. Greene his one-eleventh interest in the said estate descended to his widow, Mrs. Virginia Greene, and his minor child, Martin Greene, as his heirs, who together inherited and owned his one-eleventh interest. These parties were made parties to the suit.

The bill further alleged that the intestate had advanced certain moneys to his children, and that he kept a book account against them in his mercantile business, and charged against each of his children respectively a sum charged against them as “advancements.” It is charged that the account of the advancements to each of the persons to whom advancements were made is as follows :

To C. 0. Greene...$12,624.87

Mrs. Annie Martin Tyson ... 14,141.61

Miss Pollie Greene. 4,422.68

Mrs. L. G. Good. 4,558.12

B. B. Greene . 10',349.04

Dr. N. E. Greene . 3,697.77

Tlie bill charged that, in addition to the said advancements or indebtednesses,, shown by the mercantile books of the intestate which should be accounted for as advancements, the intestate had conveyed by way of advancements to the said three sons, E,. E. Greene, C. 0. Greene, and Dr. N. E. Greene, each respectively, certain tracts of land described in the bill, for a nominal consideration, and, dn certain cases, for love and affection, which, likewise, should be taken into consideration, and should be brought into the hotchpot in the partition of said lands, and in the adjustment of all equities shown in the bill.

It was also alleged in the bill that the administratrix had not sufficient personal assets in her hands to equalize any inequality that was necessary in the equitable adjustment of the said advances and claims set forth in the bill; that, if the said equities arising out of the facts alleged between the parties were not adjusted in this suit, there was no other source out of which the same could be obtained.

It is further alleged in the bill that in 1921 C. C. Greene and B. B. Greene executed a mortgage on their interest in all the lands to secure a debt fox a large sum of money due the administratrix for the stock of goods belonging to the estate, sold to them under an order of the court, a portion of which remains unpaid, and the mortgage is asked to be fixed as a lien on their interest in the land. The complainant, the widow, Mrs. Kate M. Greene, also asks that the “Johnson Park” property be -allotted to her as a homestead.

The bill further alleges that, after the death of Mr. Greene, the adult heirs sold to one R. E. De Berry a certain lot known -as “ginhouse” lot, in Holly Springs, which is asked to be relieved from the said partition and sold, the money to be held to await the judgment in this suit.

The bill prayed for the appointment of a commissioner to take and state an account of the advancements and indebtednesses shown by the books, which should be treated as advancements including the land advancements, and that all such advancements be taken into hotchpot, as required by law, and that said lands be partitioned, and that justice, equity, and right be done so as to equalize all parties in interest; that the property known as the “Johnson Park” property be set aside to Mrs. Kate M. Greene, the widow of the said intestate, as her homestead; that all of said lands be partioned in kind, and a reasonable attorney’s fee, etc., be charged against it, and prayed for general relief.

Appellants filed answer, making their answer a cross-bill, and admitted that the names of all the parties in interest were properly set forth in the bill; that M. A. Greene died seized of the land described in the bill; that the “ginhouse” lot sold to De Berry should be sold, and the proceeds thereof held to await the action of this suit for all parties in interest. They denied that any advancements were made, or that there were any accounts kept upon his mercantile books that should be treated as advancements. They denied that there were any indebtednesses due from any of the defendant heirs to the estate that should be treated as advancements, except open accounts that might be shown due from the adult defendant heirs that are not barred by the statute of limitation, which statute the answer pleaded. They also denied that there were any advancements to be considered or adjusted in this proceeding. They admitted the death of R. E. Greene, and that his interest was owned by Mrs. Annie Martin Tyson, and that on the death of said N. E. Greene his interest descended to his wife, Mrs. Virginia Greene, and child, Martin Greene. They denied that the “Johnson Park” property as a whole constituted the homestead at the time of the demise of the said intestate. They admitted that Mr. Greene, the intestate, was engaged in a large mercantile business at the time of his death, but denied that the said intestate charged any of his children any amount as advancements, or that they were to account for anything in the final distribution of his estate shown charged against them on his mercantile books. They averred that Dr. N. E. Greene and It. E. Greene worked for their father from time to time, and received no salary therefor, and alleged that they should be credited with a reasonable amount for said service. They alleged that the accounts kept on the mercantile books of the intestate were not intended for the purpose of. charging said children with any amount, but simply for the convenience of 'the said M. A. Greene. The appellants further averred that in the year 1916 all the amounts designated in said bill were charged off under the direction of the said intestate. They denied that any advancements in lands were made to his three sons, above named, as set out in the said bill. They admitted the execution of the deed of trust by G. C. Greene and B. B. Greene for the purchase of the goods, and admitted that the lands were capable of. a division in kind, and joined in the prayer for its partition, but alleged that a part of the “Johnson Park” property was not embraced in the bill, and that it ought to be, and prayed that it be brought in and partitioned with the other property outside of the homestead proper.

The complainants answered the cross-bill, and generally denied the allegations therein.

It appears that M. A. Greene in his lifetime, in conducting his mercantile business, charged to each member of his family everything that such member got out of the store, including money for his education, clothing, and other things usually furnished a member of a family. It further appears that practically all of these accounts were credited with payments, and that there was nothing on the face of the books which showed that it was the testator’s intent to treat these charges as advancements. The accounts ran for a long period of time — in some cases back to about 1901.

The testator’s sons claimed that the lands deeded to them were purchased by their father with money belong ing to their mother, and that therefore they should not he treated as advancements; that it was merely their father’s intention to give .them their interest in their mother’s estate; that he recognized that he was trustee by taking title to lands in his own name purchased with her money.

The regular chancellor of the district was disqualified by relationship to some of the parties, and a special chancellor was appointed to hear and determine the cause. On the 19th of October, ] 923, the cause came on for hearing before the special chancellor, whereupon the complainants proceeded with their evidence to the point where they offered to introduce the books of account of the deceased, M. iA. Greene, to which the appellants interposed objection, assigning as a reason that the books were not the books of original entry of the charges against the various defendants.

The widow, Mrs. Kate M. Greene, was introduced over objection, and testified to certain statements made by her husband, the intestate, during his lifetime with reference to his purpose and intention in regard to the account kept upon the mercantile books. She further testified that she had tried to get her husband in his lifetime to provide for her and her children, but that her husband never did so. The special chancellor finally held her testimony incompetent, and excluded it. Certain persons were introduced who had been bookkeepers for M. A. Greene at different times, who testified with reference to the books kept by them, saying that the books were kept in the usual course of business, but that certain of the day books and charge books made by salesmen were not found. Each of these persons testified that Mr. Greene had never spoken to them about any intention of charging these accounts as advancements, or that they were to be considered as advancements, or that they should be debts not subject to the statute of limitation.

The special chancellor at this stage continued the hearing to a later day, making this statement in reference to setting the time:

“I am not going to hear this case further at this time, hut am going to continue it until an accountant can go over the books and make an itemized account of same. After this is done, I will then hear the rest of the case, and will then pass on same.”

The accountants then went over the books, and made up statements from the hooks showing the charges against each of the children. These accounts, after being so made up were sworn to by the administratrix, the complainant in the suit.

On the 17th day of June, 1924, the special chancellor resumed hearing, and certain of the witnesses testified with reference to the hooks of account, and offered the lists made up.' It also appeared that in the books kept there were accounts against the widow and her children, but these accounts were not made up by the accountants named by the court. At the end of this testimony the court ruled out the copies made up, and proceeded to find the amounts set out in the interlocutory decree, holding in his opinion that the complainants did not have to prove the accounts, because the answer denying the accounts wore sworn to by an attorney, and not by the defendants in person.

Certain persons wer.e introduced to testify to statements made by the intestate in his lifetime, one of whom was a dressmaker, who stated that Mr. Greene stated to her that he wanted to keep the accounts separate, charging to each one the work done for her, “as some day each tub would have to stand on its own bottom.” A brother of the complainant testified to statements made by the intestate to him in which, among other things, he stated that while some of the boys were in school he was living with Mr. Greene; that he said to Mr. Greene during a conversation, in effect, that the boys were spending a good deal of money; “that they were making it pretty hot for him, weren’t they?” And that he stated that he had one consolation about it — that he was charging it up to them, and that it would come out of their estate. Similar statements were made by others.

The special chancellor held in an interlocutory decree that he did not think the charges on the books were advancements, but he held that the money received by the children would be charged up against them, and be. deducted from their share of the estate in hotchpot; that the accounts were simply indebtednesses, and were not technically advancements. He held that the lands were advancements, and appointed a commission to make a partition thereof, and value them, and directed the commissioners to fix their value of the lands at the time the conveyances were made. In some cases a considerable period of time elapsed between the time the parties went into possession of the lands and the date on which the deed was made. One of the sons went into possession in 1907, and used the land from thence on, but the deed was not made until 1920. The chancellor held that the books made in the course of business were the original books of entry, and were competent as evidence, citing the case of Grenada Cotton Compress Co. v. Atkinson, 94 Miss. 93, 47 So. 644, as authority for this ruling. He excluded the accounts made up by the accountant as evidence, but held that they served the purpose of bills of particulars; that the said accounts, having been prepared by a competent accountant by copying the statements of the several accounts made from the books, served as a basis of calculation after being compared with the books, and were in evidence, and to be found in the transcript; that the correctness of these accounts was not seriously challenged as far as the items were concerned, the answer denying same not being sworn to by the respondents themselves, nor was that feature of the evidence supported by evidence or by persons in position to dispute the correctness of the accounts. The chancellor made several corrections in the account against Mrs. Tyson and against Pollie Greene on account of the erroneous charges, reducing the account of Mrs. Tyson from five thousand six hundred seventy-three dollars and seventy-four cents to five thousand four hundred forty-four dollars and thirty-one cents, and the account of Miss Pollie Greene from five thousand eight hundred twenty-nine dollars and seventy-seven cents to four thousand eight hundred twenty-nine dollars and thirteen cents.

The chancellor held with reference to the “Johnson Park” property that it be set apart according to the use made of it by the decedent in his lifetime, and instructed the commissioners with reference to setting off the same to the widow, and appointed commissioners to make a partition and sale of the “ginhouse” lot, and to find the value of the lands conveyed to the sons, R. E., N. E., and 0. C. Greene, as advancements, and directed that the homestead be set apart, and to value the several separate tracts of land, and report back to the court.

After this interlocutory decree, a new chancellor was elected and qualified, and the case came on for further hearing before him. The defendants filed an exception to the report, and offered proof to show that the possession of certain lands was awarded to the sons before the deeds were made to them; offered to prove that the value at the time they were into possession was much less than the value at the time some of the deeds were made. They also offered proof to show that the lands treated as advancements by the special chancellor were 'bought with funds belonging to their mother, and hence did not constitute subjects of advancement against the estate of the father. They also sought to review the findings of the special chancellor on the interlocutory de cree, and to challenge the accounts, and to show that the complainant, Mrs. Kate M. Greene, had received certain rents from the “Johnson Park” property and the value thereof, and sought to contest liability on those accounts for periods of minority; in other words, the appellants, on the coming in of the'commissioners ’ report, undertook to have the regular chancellor review the case as dealt with by the special chancellor, and hear additional evi- deuce in reference thereto. The regular chancellor, who had been elected and qualified, refused to review the proceedings before the special chancellor, stating that he would treat that decree as a final judgment, and he refused to hear evidence on the subjects as tendered by the defendants.

We think the chancellor was correct in finding that the accounts were not advancements within the meaning of the law upon that subject. In 1 R. C. L. 660, par. 10, it is said:

‘ ‘ The definition of advancement embraces the idea that the donor has irrevocably parted with his title in the subject-matter, and that complete title has passed to and become vested in the donee. And it is necessary to the existence of .an advancement that the passing of the complete title and the vesting of the beneficial interest shall take place during the lifetime of the donor, as the purpose of an advancement is to allow the heir or distributee the present use and enjoyment of that which under other circumstances he would not seqnre until the donor’s death. Hence, where no estate that can he alienated is given to a donee, no advancement can be said to have been made.”

See, also, 18 C. J. 929, section 246.

The hook accounts therefor were not dealt with by the intestate' as advancements, but payments on the debts shown by the books were received and credited. In other words, the intestate treated the accounts as any other debt charged upon the hooks, and dealt with it as such.

The several statements made by the witnesses who testified to conversations with the intestate in his lifetime merely show that he intended to make some disposition or final adjustment between his children. These payments in some instances amounted to large sums of money relatively speaking. As we understand, there is no proof of any of these conversations being so directly connected with any particular advancement as to make it a part of the res gestae. And these statements were not chosen.'to have been made in'the presence of the respective children against whom the accounts wer*-' charged, oí that the intention of the father ever was communicated to the respective children. Of course, if the intention existed to make them advancements, and that was clearly proven, it would be controlling, because a parent has the right to charge up money or property advanced to his child, at least for any purpose other than that which the law imposes a duty upon him to furnish it.

In Garrett v. Colvin, 77 Mis. 408, 26 So. 963, it is said:

“It is the duty of a father to give his son an elementary education, and generally expenses incurred by the father for a university education would not be held as advancements, but we see no reason why a gift of money from a father to his child, to enable him to take a university education, whether in law, medicine, theology, or in the arts and sciences, should not constitute an advancement, if distinctly intended so to be at the time of the gift.” (Italics supplied.)

In reference to the holding of the chancellor that the accounts should be charged against each one of the children as debts, we think his ruling is error in so far as it dealt with things furnished the child during the minority of the child. In order to be a debt it must be a contract, and a child under twenty-one years of age is incapable of contracting, except for necessaries, and it is tne duty of a father to furnish the necessaries for his child, and he cannot charge the child up with necessaries which it is his duty to furnish.

It was also error for the chancellor to hold that these accounts should be charged against the several children against whom they were charged, where they were more than three years old at the date of the death of M. A. Greene. All open accounts more than three years old at said time were barred by section 2479’, Hemingway’s Code (Code 1906, section 3115), which reads as follows:

“The completion of the period of limitation herein prescribed to bar any action, shall defeat and extinguish tlie right as well as the remedy; but the former legal obligation shall he a sufficient consideration to uphold a new promise based thereon.”

At common law, and under the statutes of most states, the statute of limitation does not extinguish the debt, but merely bars the remedy by which the debt may be collected or enforced. When such is the ease, the debt continues to exist, and may be charged against the child in the division of an estate; but, where the debt itself is extinguished by the statute of limitation, as it is in our state, the account ceases to be a debt. It is completely extinguished by the statute of limitation, and can only serve as a legal consideration for a new promise based thereon. Proctor v. Hart, 72 Miss. 288, 16 So. 595; Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84; Cox v. American Freehold & Land Mortgage Co. of London, 88 Miss. 88, 40 So 739; Central Trust Co. v. Meridian Light & R. Co., 106 Miss. 431, 63 So. 575, 51 L. R. A. (N. S.) 151; Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958.

In reference to the accounts which are not barred by the statute of limitation, we are of the opinion that the testimony that the books were made up in the regular course of business and were correctly kept renders them admissible in evidence. They may be sufficient, in the absence of counter proof, to sustain the finding that the parties charged therewith owed the said amounts. We think that the chancellor was in error in holding that the complainants were not put to proof by the denial of the answer being sworn to by an attorney. Section 731, Hemingway’s Code (section 1011, Code of 1906), provides:

“In all cases where the oath or affirmation of the party is required, such oath or affirmation may be made by his agent or attorney, and shall be as effectual for all purposes as if made by the party.”

This section has the effect of making a denial sworn to by an attorney impose the burden to prove the matter upon the complainant.

We do not think the affidavit to the account made by the administratrix after the pleadings were made up has any efficacy in putting- the defendant to a denial of the several items under the oath. The bill was not based upon an itemized open account duly sworn to as provided by section 1638, Hemingway’s Code (section 1978, Code of 1906). This section was intended t.o be used in connection with the pleadings in making up the issues. After the pleadings are properly at issue, the proof must be produced in the regular way by the production and examination of the witnesses. This section was not intended for the purpose for which it is attempted to be used in the present suit. It was not intended to enable a person incompetent to testify to accomplish the same result by swearing to an open account itemized ex parte. Where the account is a part of the pleadings, and is verified in the manner provided by the statute, the statute compels the other party to particularize in his denial of what is and what is not correct; but it is not intended that either party by an affidavit subsequently filed as a part of the evidence can get the benefit of it.

In reference to the land deeded by the intestate to the three sons above mentioned, we think the regular chancellor should have heard the evidence with reference to the purchase of this property with the money of the first wife of the intestate, who was the mother of the three sons involved. If in fact he purchased these lands with their mother’s money, and intended when he gave the lands to recognize his obligation to her children, the lands should not be held to be advancements. If they were not so purchased, and if they were intended as advancements, as the law presumed they were in the absence of proof to the contrary, the value should have been fixed as of the date when the gift was made and possession taken.

In 1 R. C. L. 678, under the heading “Time of Valuation, ” it is said:

“It is a rale of almost universal application that an advancement is to be valued as of the date when the estate or interest passed to the donee, or as the rale is often expressed, 'as of the date when the donee took possession and entered into the enjoyment of the gift. It matters not whether, at the time the donee thus actually took possession and entered into the' enjoyment of the advanced property, he held the legal title thereto, provided he thereafter acquired such title. Thus the value of land advanced is to be determined as of the date of taking possession, although the advancement was made in parol and the deed to the laud was not delivered until after possession was acquired.”

In Jackson v. Jackson, 28 Miss. 674, 64 Am. Dec. 114, this court said:

“Its value must he estimated as at the time when the gift was made.”

The chancellor was, therefore, in error in having the. land value as of the dates of the deeds rather than of the dates possession was taken. There might, in fact, never be a deed, but title might ripen by adverse possession. For the purpose of advancement, it is to be treated as though the deed was made when possession was given with the declaration or agreement of gift.

We think the decree of the chancellor was proper in reference to the homestead, and that the commissioners should set aside the homestead according to the manner it was treated by the intestate in his lifetime. We think it proper to reverse the case generally and remand it for the purpose of conforming to the opinion herein rendered.

Reversed and remanded.