Union & Planters' Bank & Trust Co. v. Rylee

Smith, C. J., delivered the opinion of the court. A. J. Rylee died on April 10,1919, leaving a will in which the Union & Planters’ Bank & Trust Company was nominated as the executor thereof. Among the claims probated against Rylee’s estate were two by Thomas Rylee, a brothel of the decedent, and two by J. N. Rylee, a son of Thomas — 901 — Rylee and a nephew of the decedent. .The executor contested the validity of these claims, and their validity was submitted to the court below, resulting in a decree allowing one of the claims probated by Thomas Rylee and disallowing the others, from which there is an appeal both by the executor and by J. N. Rylee, Thomas Rylee not appealing from the disallowance of one of his claims. The pleadings on which the validity of these claims were presented to the court for decision were lost, but from an agreement entered into by counsel it appears that the statutory method of contesting claims against a decedent provided by section 2108, Code of 1906 (Hemingway’s Code, section 1776), was not followed, but that their validity was presented to the court below by an original bill by the executor against the Rylees and an answer and cross-bill by the Rylees, and an answer to his cross-bill by the executor. The claim of Thomas Rylee against the estate as set forth in the probated record thereof is as follows: “A. J. Rylee, Deceased, in Account with Thomas Rylee, Dr. “March 14, 1917, to Pease and Dwyer judgment, paid in cash, two hundred and twenty-four dollars and three cents. “March 14,1917, to judgment Union & Planters’ Bank & Trust Company v. A. J. Rylee, paid in cash, two hundred and seven dollars and sixty cents — total amount paid, four hundred and fifty-one dollars and sixty-three cents. “The above judgments, Pease and Dtvyer v. A. J. Bylee et al., and Union & Planters’ Bank & Trust Company v. A. J. Rylee et al., were recorded in Tallahatchie county, Miss., on judgment roll of said county, and the same were paid by Thomas Rylee on the 14th day of March, 1917. Thomas Rylee.” This statement of the claim was sworn to by Rylee and allowed by the chancery clerk in accordance with the statute. In support of this claim Thomas Rylee introduced the probated record thereof, and then introduced his son, J. N. Rylee, who identified a check reading as follows: — 902 — “Memphis, Tennessee, 3/14/1917. “Central State National Bank: Pay to the order of P. H. Brown, sheriff, $431.63, four hundred thirty-one and sixty-three dollars, for judgments Pease and Dwyer v. A. J. Rylee and Union Trust Bank v. A. J. Rylee. [Signed] Thomas Bylee.” Whether this check was ever indorsed and collected by the payee therein does not appear. The witness was then asked if he “knew what the check was given for,” to which he replied, “No more than what the check itself shows.” No evidence as to this claim was introduced by the executor. The executor’s contentions as to said claim are: First, that it was not properly probated; and, second, that it was not established by the evidence. We will pretermit any discussion of the first of these objections and dispose of the claim on the second. “A claim against the estate of a decedent, although duly probated and registered, must be established by competent evidence if objected to by the administrator.” North, Administrator, v. Lowe, 63 Miss. 31. The evidence offered in support of the claim here under consideration amounts to practically nothing. It does not appear therefrom that the judgments for the payment of which reimbursement is here claimed in fact existed, that the payee in the check was the sheriff, and as such was authorized to collect the judgments by execution or otherwise, nor that the check was collected by him. Moreover, in order for the claimant to be entitled to recover money paid by him in settlement of a judgment against the decedent, he must have paid it at the request, express or implied, of the decedent, for: “No man ‘can make himself the creditor of another by paying that other’s debt against his will or without his consent,’ or at least without some act on his part which will prevent him for withholding consent.” Clark on Contracts (3d Ed.), p. 627; Hammon on Contracts, p. 869; Walker v. Harrison, 75 Miss. 665, 23 So. 392. — 903 — The two claims probated against the estate of J. N. Bylee consist, one of an open account against the estate in favor of Thomas Bylee, and assigned to j. N. Bylee, and a promissory note for six thousand three hundred dollars executed by the decedent and payable to J. N. Bylee, and due November 15, 1917. The probated statement of the open account begins, “A. J. Bylee, debtor to Thomas Bylee,” and, after setting forth a number of debit and two credit items, continues as follows: “1918. January 13. Bal. Brought forward from 1917 . .$ 5.93 March 10. To expense Tutwiler and return .... 10.00 April 26. To expense Tutwiler and return---- 10.00 June 13. Balance due fpr services up to date .... 1,610.00 Balance due to date.................... $1,665.93 “I hereby approve the above account and agree that same shall bear interest from date until paid June 6, 1918. [Signed] A. J. Bylee. “By W. J. Bylee, Agent.” Indorsed on back thereof: “Pay to John -N. Bylee, without recourse on me. [Signed] Thomas Bylee.” The statement of this amount was not signed by any one, and was sworn to by J. N. Bylee,. The only evidence offered in support of the account was a power of attorney executed by A. J. Bylee to his son, W. J. Bylee, in January, 1917, being as follows: “I, A. J. Bylee, constitute and appoint W. J. Bylee my legal agent and, attorney in fact to collect and receipt for any and all rents due me in the town of Tutwiler, Miss., and to transact all legal business pertaining to my property and interest in the said town and until this authority is revoked by me.” W. J. Bylee testified that he made the notation on the account approving it, but that he did so at the request of his uncle, Thomas Bylee, but knew nothing whatever as to its correctness vel non himself. — 904 — Several objections are made by the executor to the manner in which this account was probated, but we will pretermit any discussion thereof, for the reason that it does not appear that any item of the account relates to any property or interest of the decedent in the town of Tutwiler, and consequently the approval of it was not within the scope of the authority conferred upon J. W. Eylee by the power of attorney executed to him by the decedent. The court below committed no error in disallowing it. In support of the promissory note probated by him J. N. Eylee proved the signature of the decedent thereto, find then introduced it and a deed of trust securing it in evidence. The executor then introduced evidence to the effect that in January, '1915, the decedent, being indebted to Thomas Eyle in the sum of one thousand dollars, executed to him a promissory note therefor secured by a deed of trust on the property afterward included in the deed of trust hereinbefore referred to to J. N. Eylee, and also executed to Thomas Eylee a full power of attorney for the management of the decedent’s business; that on February 7, 1915, the decedent executed a promissory note to J. N. Eylee in the sum of three thousand five hundred dollars securing it by a deed of trust on the property included in the two deeds of trust herein before referred to. The note to J. N. Eylee for six thousand three hundred dollars here sought to be collected was executed on Juy 12, 1915. The evidence for the executor further discloses that on June 2,1916, Thomas Eylee and the decedent had a final settlement embodied in a written agreement signed by each by which the power of attorney theretofore executed by the decedent to Thomas Eylee was revoked, and reciting that “all moneys due to either party by the other have been paid,” and that — “This instrument is intended as a complete settlement and adjustment of any and all business matters, and accounts heretofore existing between the said parties, and as a mutual acquittance, release, and discharge of each party from any liability to the other.” — 905 — W. J. Eylee testified on behalf of the executor that the six thousand three hundred dollars note here in question was paid by the decedent to Thomas Eylee, and, over the objection of the claimant, J. N. Eylee, that Thomas Eylee had told him, the witness, that the decedent did not owe J. N. Eylee anything; that the note executed by the decedent to J. N. Eylee for three thousand five hundred dollars was to cover the one thousand dollar note executed by the decedent to Thomas Eylee and advances made to the decedent by Thomas Eylee, and that the reason that it was made payable to J. N. .Eylee instead of to Thomas Eylee was that he (Thomas Eylee) had been advised by his attorney that the note ought not to be made payable to him .(Thomas Eylee) because of the fiduciary relations then existing between him and the decedent, and that the six thousand three hundred dollar note to J. N. Eylee was executed to cover the three thousand five hundred dollar note and advances made by Thomas Eylee to the decedent, and was made payable to J. N. Eylee instead of to Thomas Eylee for the same reason that the three thousand five hundred dollar note was made so payable; that Thomas Eylee told him (the witness) that everything was settled between him and the decedent. J. H. Cook, an attorney at law, was permitted to testify on behalf of the executor and over the objection of the claimant that he was present at a conference between the decedent and Thomas Eylee in which the decedent stated and Thomas Eylee admitted that he (the decedent) did not owe J. N. Eylee anything, and that the decedent dictated -to him (Cook) a letter to J. N. Eylee to that effect, which letter was mailed to J. N. Eylee, but was not answered by him. Cook also produced on cross-examination and at the request of counsel for the claimant read a letter which he had written to the claimant on November 10, 1918, stating that the deed of trust securing the six thousand three hundred dollar note had not been canceled, and, inasmuch as the note had been paid, he as the representative of A. J. — 906 — Bylee, would request the claimant to cancel it. This letter was not answered. The decedent died in a hospital in Memphis, and one of the nurses who attended him there testified that J. N. Bylee visited him at the hospital, and the decedent then said to him in her presence, “John, I understand you are claiming an indebtedness against me, and I want to know what it is for and why I owe you anything?” to which John replied, “You do not owe me anything,” and wanted to know where he got the information that he owed him anything, and that “He did not see any reason why he had that idea, as he'did not owe him anything at all.” This witness further testified that when J. N. Bylee left the decedent’s room she accompanied him into the hall, and, in the language of the witness: “He asked me in regard to his uncle’s health and present condition, and he wanted to know who told Capt. Bylee that he was claiming an indebtedness against him, and wanted to know where he got the information from, and stated that he did not owe him anything, and that he did not see why Capt. Bylee should owe him or any one else anything with the capital that he had.” The deeds of trust securing the one thousand dollar note to Thomas Bylee and the three thousand five hundred dollar note to J. N. Bylee were, but the deed of trust securing that six thousand three hundred dollar note was not, canceled by a notation on the record thereof to that effect. No demand was made on the decedent during his lifetime by either Thomas or J. N. Bylee for the payment of the six thousand three hundred dollars. That the deed of trust securing the six thousand three hundred dollar note had not been canceled was discovered by J. N. Bylee and reported to the decedent. The claimant then introduced Thomas Bylee, who testified at great length, and, while his testimony abounds in contradictions, when taken as a whole it warrants the belief that he advanced the money to the decedent, to cover which all three of the notes hereinbefore referred to were — 907 — given, and that in having the notes made payable to J. N. Rylee he was, in the language of the witness, simply “using his name.” The testimony of the witnesses W. J. Rylee and Cook that was objected to as hereinbefore set forth, should not have been admitted, it being pure hearsay. The error committed by its admission, however, will not necessitate the reversal of the decree, for the reason that it is fully supported by other competent testimony, to-wit, the admission made by J. N. Rylee to the decedent and the nurse at the hospital that the decedent did not owe him anything, his failure to reply to Cook’s letter requesting him to cancel the deed of trust, his making no demand for the payment of the note until after the decedent’s death, and the deductions which the court below was warranted in making from the testimony of Thomas Rylee as hereinbefore set out. A judgment or decree will not be reversed for the admission of incompetent, when supported by other and competent, evidence. O’Leary v. Burns, 53 Miss. 171; Rothschild v. Hatch, 54 Miss. 554; Fletcher v. State, 60 Miss. 675; Penn v. State, 62 Miss. 450; Board of Levee Commissioners v. Lee, 85 Miss. 508, 37 So. 747. The decree of the court below 'will be reversed in so far as it allows the claim probated by Thomas Rylee, but in all other respects will be affirmed. Reversed and remanded as to Thomas Rylee; Affirmed as to J. N. Rylee.