Dyer v. Williams

Cooper, J., delivered the opinion of the court. In 1871 the appellant intermarried with Narcissa A. Hudson, the mother of the appellees, who, at the time of the marriage, was the owner of a considerable separate estate. The personal estate consisted in the main of ehoses in action, which came to her after her marriage as sole distributee of her mother', Mrs. Kirkwood, who had died before that time but whose estate was then being administered. She was also entitled to a distributive share in the estate of her former husband. All of this personal property was received by the appellant, and the ehoses in action were by him collected and the money spent. During coverture some of the lands of the wife were sold and the proceeds of sales also came into the. hands of the appellant, who used it as his own. The wife having died, the appellees, her children by the first marriage, exhibited this bill against the appellant to charge him as trustee of the wife’s estate. The bill sets out in detail the property of the wife which had been received by the appellant, describing minutely by dates and amounts the various notes which it is charged he had received. Having averred what amounts had been thus received, the details of which were known to them, the appellees charged that the same “ were the separate property of the said Narcissa A. and constituted the corpus of her separate estate, and that the defendant, Dyer, held the same in trust for the said Narcissa A. or became her debtor therefor, and could in no wise alter, abridge, or destroy her right thereto.” [308] The prayer for relief contains the following prayer for discovery: “ That the said defendant, Dyer, in addition to his answer to the specific allegations of this bill, may be required to answer what property of the said Narcissa A., not mentioned or indicated herein, he has received.” By his answer the defendant admitted the reception by him of a part of the property named in the bill, but denied that he had received it all, or that he had received any other thing than those charged in the bill; he exhibited a detailed statement of the property received by him and admitted that he had converted the money to his own use. He denied that he had received any 'part of the property or money as the trustee of the wife, but asserted the fact to be that his wife had given all said property and money to him, to be used and enjoyed as his own without any liability to account to her either as debtor or trustee. In explanation of the gift, he stated that at the time of his marriage to Mrs. Hudson she and her family had been accustomed to the ease and comfort of affluent circumstances; that the family consisted of several marriageable daughters; that the scale of expenditure incident to such style of living was great, and no change in this respect was made upon his marriage; that in view of the burden of expenses which would be imposed on him, and for the payment of certain debts which were then owing by his wife and which were afterward paid by him, and also by reason of the feeling engendered by the relation between them, his wife “gave to him to be kept and used as his own all of the money belonging to her which he received, and all that he did receive he received, not as her trustee nor to become her debtor, but as an absolute gift, to be his own. She considered and treated as his all that came to his hands, she made no claim for it or for any account of it, and she expressed to him and to others the intention and desire that it should belong to him.” The evidence by which the averment of the answer relative to the gift by the wife was sustained consisted of the testimony of a witness, Mrs. McClurg, a near relative to Mrs. Dyer, who, during the life of Mrs. Dyer, both before and after her marriage to the [309] appellant, was an inmate of her household and treated and considered as one of the family. This witness testified that on the evening preceding her marriage Mrs. Hudson invited her into a private room and said to her that she desired to assure the witness that her marriage should not alter the relations which had existed between them; that she desired, witness to continue as before in the family, and that she intended to give to Colonel Dyer all her property. •' , ' Some years after this, and when there was a controversy between the appellant and the sons-in-law of .the wife touching his management of the property of the appellees and the guardianship of their brother, who had died, Mrs. Dyer expressed to this witness her mortification and regret, and said that “ she had given everything she had to Colonel Dyer and was glad of it.” It is contended on behalf of the appellant that his answer is responsive to the bill of complaint in stating that the property of the wife was received by him, not as a trustee, but under a gift from the wife, and that this responsive allegation is supported by the testimony of Mrs. McClurg, and that the reasonableness of the gift is shown by the other circumstances set forth in the answer. The first question is, whether the fact of the gift has been sufficiently established, and we áre of opinion that this has not been done. The bill is skillfully and carefully drawn, with the evident purpose of excluding the defendant from availing of his answer as evidence in his favor as to the manner in which he received the property of the wife. Complainants" were content to rest this phase of their case upon the presumption of law which arises from the reception of the estate of the wife by the husband. They have not interrogated the conscience .of the defendant in reference thereto and are not to be prejudiced by any answer not called for by them, nor can the defendant, by volunteering information not asked, give to it the weight of evidence against them. He was called upon to admit or deny only the-1 allegations of the bill, and these were that the estate of his wife had passed into his hands and had been appropriated by him, and that he had not accounted [310] to her nor to her distributees. By his answer he admits both these facts, but in avoidance of their legal effect he sets up another independent affirmative fact not charged or denied by the bill, to wit, that the wife had given him her estate. This fact he could rely upon in his defense if established by proof, but being new matter its assertion was not evidence of its truth. Brooks v. Gillis, 12 S. & M. 438; Dease v. Moody, 31 Miss. 617; Parmalee v. McGinty, 52 Miss. 483 ; Parlk v. Bamburger, Ib. 569 ; Dodds v. Durbridge, 53 Miss. 613. The testimony of Mrs. McClurg, standing alone, is in our opinion insufficient to establish the fact of the gift. This witness does not state that she was present when the gift was made or that it was discussed or recognized in the family. Her only information on the subject arises from what was said by Mrs. Dyer in two isolated conversations, in each of which the mind of Mrs. Dyer was directed to other matters. The first interview was sought by Mrs. Dyer (then Mrs. Hudson) for the sole and expressed purpose of explaining to this witness, a dependent relative, that the contemplated marriage should not affect her membership in the family; the second conversation was in relation to the misunderstanding which existed between Colonel Dyer and his sons-in-law in reference to his management of the estates of the children. We attach but little importance to these declarations. The circumstances under which they were made, the fact that the mind of Mrs. Dyer was directed to totally different subjects, and the doubtful import of the language used detract from their significance. The property of husbands and wives would be held by a frail tenure indeed if casual remarks, such as those reférred to by this witness, dropped in the course of conversations in the intimacy of the family circle, should be held to be sufficient evidence of transfers of estates. The decree is affirmed.