
    Frances B. Marshall et al. v. Sydney V. Stratton et al.
    [51 South. 132.]
    1. Repeeviit. Yerdict for defendant. Evidence. Uncertain transactions between dead persons.
    
    A verdict for defendants in an action of replevin between kindred for old furniture will not be disturbed where its ownership depends upon transactions between persons now deceased of which the living are not well advised, and the acts of the deceased woman under whom plaintiffs claim can be accounted for reasonably only on the assumption that she had given the property to the deceased woman under whom defendants claim.
    2. Gifts Ijítek Vivos. Parol toills.
    
    An agreement between two sisters that the survivor should have the furniture, the subject of the agreement, does not constitute a gift -inter vivos, but is a futile effort to make a parol will.
    From the circuit court of Adams county.
    Hon. Mgyse H. Wilkinson, Judge.
    Mrs. Marshall and another, administrators de boms non of the estate of Mary Louise Williams, deceased, appellants, were plaintiffs in the court below; Sydney Y. Stratton and others, ap-pellees, were defendants there. From a judgment in defendant’s favor the plaintiffs appealed to the supreme court.
    The plaintiffs as administrators, sued the defendants in re-plevin to recover designated household furniture claimed by plaintiffs as having been the property of their testatrix. It was shown that the furniture had belonged to Mrs. Caroline M. Williams who died in 1863, leaving her property to' her three ■children Caroline M. Stratton, Irene S. Williams and Mary Louise Williams; that the furniture, by division of property ■among the three, was awarded to Mary Louise Williams. Shortly after the death of her mother Mary Louise Williams went to the home of her sister, Caroline M. Stratton, and carried with her the furniture and placed it in Mrs. Stratton’s home. Later Mary Louise Williams visited, and remained in the home of, her other sister Irene S'. Williams, but left the furniture in the home of Mrs. Stratton where it remained until after the death of Mrs. Stratton in 1908.
    The defendants declined to deliver up the furniture, claiming that they were entitled to its ownership and possession as heirs of Mrs. Stratton; and they introduced evidence tending to show that some two or three months before the death of Mary Louise Williams there had been an oral agreement between her and Mrs. Stratton that the survivor of the two should own the furniture. Mary Louise Williams died in 1906, and by her will, which had been duly probated and was introduced in evidence, she named her two sisters, Mrs. Stratton and Irene Williams as executors thereof and bequeathed the furniture to Irene Williams. Mrs. Stratton declined to act. Mrs. Williams topk out letters of ex-ecutorship, but failed to make any inventory of the personalty of the estate or to cause any appraisement to be made. Mrs. Stratton died in October, 1908, and Mrs. Williams about one month later. The will of Mrs. Stratton, duly probated and introduced in evidence, purported to make a disposition of the furniture to two of the defendants. The opinion of the court further states the facts.
    
      Martin '<& Bowman, for appellants. ■
    The material question in this case is, whether there is sufficient legal evidence to establish a gift of the furniture by Miss Mary Louise Williams to Mrs. Caroline M. Stratton. If not, then the title never passed from Miss Williams, and appellants, ■as her present representatives, are entitled to recover. The only direct evidence on this point is that one witness], Mrs. Wheeler, had overheard on several occasions conversations between the ladies which the witness had understood as conveying information to the following effect, — that if Miss Mary Louise Williams died first, the furniture was to go to Mrs. Stratton, and that if Mrs. Stratton died first, the furniture was to go to Miss Williams. Now, in considering this proposition, it must be borne in mind that when these two ladies were talking about the furniture they were talking about something that belonged to Miss Williams. The court will note that the witness herself recognized that the furniture had been the property of Miss Williams. Now, the substance of these conversations was introduced in evidence for the purpose of establishing the gift to Mrs. Strat-ton from Miss Williams, upon the theory either that they are in themselves and of their own force sufficient to create a gift, or that they constitute some evidence that such a gift had been made prior thereto. Whatever the law may be, it is manifest that the words cannot be given any force or effect other than or different from their plain meaning and intent, and that if they create a gift, or are evidence that a gift has been made, the gift so created, or evidenced, must be of the character described in the words. Ascribing to the witness absolute accuracy, both in her recollections and report of the conversation, we have evidence of the following arrangement between the ladies, namely, that this furniture, which belonged to Miss Williams, was, in case Mrs. ■Stratton outlived Miss Williams, to be the property of Mrs. Stratton, otherwise to remain the property of Miss Williams. It is perfectly clear from a critical examination of what Mrs. Wheeler said that she was testifying to just this sort of parol agreement or understanding between Miss Williams and her sister, Mrs. Stratton; and in placing such construction up on her testimony we are practically ignoring the very significant statement that tbe conversations in wbicb tbis agreement was spoken of, were of a jocular nature. G-iving them, however, their full effect and disregarding the jocular -feature as not causing a doubt whether they really meant what they said, the question arises as to whether a valid and binding gift from Miss Williams to Mrs. Stratton was either created or 'sufficiently evidenced by them. We assert the contrary with great confidence. We claim that from a legal standpoint, all such conversations were merely the idle chat of an hour, and that no rights were thereby vested either in Mrs. Stratton or lost to Miss Williams. Gifts to be valid and binding between the parties must be either inter vivos or causa mortis. In the instant case the alleged and supposed gift can not be sustained as a gift causa mortis, as it lacks the most essential feature of such a gift, the necessity of having heen made in sickness and contemplation of death. Kiff v. Weaver, 55 Am. Hep. 601; Wilson v. Jourdan, 79 Miss. 133; 20 Cyc. 1230.
    The evidence is, Without contradiction, that when these conversations occurred, Miss Mary Louise Williams was not sick, but in very good health, and that there was absolutely no feature of a gift causa mortis. Nor can the alleged gift be-sustained upon the theory that it was a gift taking effect inter vivos, unconditionally, immediately and irrevocably. So far as possession is concerned the alleged donee simply remained in possession of the property that had been left with her for a long time, but the trouble with appellees’ case is that the. supposed gift was not unconditional, not to take effect in prcesenti, but was conditioned absolutely upon the contingency of Mrs. Stratton’s surviving Miss Williams. This fact destroys the validity of the alleged gift. There must be no rights reserved by the donor, there must be no strings tied to the gift, and it must furthermore be an absolute conveyance coupled with immediate possession. Smith v. Dorsey, 10 Am. Hep. 118.
    
      
      Lemuel P. Conner, for appellees.
    Tbe appellees do not claim tbe gift to have been made in contemplation of early death, or tbat it was a gift causa mortis, but insist tbat it was a gift inter vivos. In tbe case of Wilson v. Jour dan, 19 Miss. 133, 'this court announced in terse language tbe essential elements of a gift inter vivos as distinguished from a gift causa mortis. Tbe test is not tbe mere fact tbat tbe donor is in extremis and expects to die and does die of tbat illness, but whether be intended tbe gift to take effect in prcesenti, irrevocably and unconditionally. In tbe present case tbe gift was not postponed to take effect when Mary Louise Williams should die, but, on tbe contrary, its effect was immediate and irrevocable. What other incidents are there in a gift inter vivos? To quote from tbe language of tbe supreme court of Indiana in tbe case of Smith, Admr., v. Dorsey, 38 Ind. 451, 10 Am. Rep. 118: “It must take effect at once and completely, and when it is made perfect and complete by delivery and acceptance, then it becomes irrevocable by the donor.” And tbat is tbe rule of law we find in practically all tbe jurisdictions, including our own, from Wheatley v. Abbott, 32 Miss. 343, on down. If in tbe present case there bad yet remained some matter or thing to be done to complete tbe gift; if tbe donor bad retained any control over the property; if there were any conditions imposed upon tbe donee which affected delivery or title, then tbe gift would have been invalid. To drop into tbe vernacular of tbe day, if there bad been any strings tied to tbe gift, it would have been invalid. In tbe Indiana case cited supra, a man about to join tbe army during tbe Civil War, said to a friend, then having in bis possession a gun belonging to tbe enlisting soldier, “Well, if I never return, you may keep tbe gun as a present from me.” Tbe court was clearly right in bolding tbat such a statement carried no gift inter vivos, and tbat it lacked tbe elements of a gift causa mortis. Tbe alleged donor used tbe words, whose meaning was tbat be reserved all of bis rights of ownership and possession. That case is totally different from tbe case at bar, and is-valuable to us only as giving a concise and accurate description of tbe requirements for a valid gift inter vivos. In tbis case tbe gift was immediate. Mrs. Stratton was already in tbe possession of tbe furniture and tbe effect of tbe gift was to take effect in p’cesenti. It was irrevocable and unconditional; tbe furniture was already in tbe possession of Mrs. Stratton, so that no formal delivery was necessary; tbe gift was absolute, unconditional and immediate, and accepted by Mrs. Stratton. What more was needed ? It is bigbly improbable that tbis lady used-terms that would bave been employed by a lawyer, bad be been called upon to draft a deed of gift to carry out tbeir intentions. But tbe words used or tbe name given to an agreement are not tbe sole guide of bim wbo seeks to know tbe nature of that agreement. Courts look to tbe intention of tbe parties, and seek to ascertain the aggegaiio mentium. In tbis case it is immaterial whether Miss Williams bad said to Mrs. Caroline Stratton as to-tbe furniture in controversy, “I will now make you a gift of tbis furniture with contingent reversion to myself if I shall survive you.” Such a gift would bave contravened none of tbe rules of law governing tbe validity of a gift inter vivos.
    
    Evidence of tbe possession or control of tbe subject of a gift,, or of an assertion of right thereto by one or tbe other of tbe parties is admissible to prove or disprove tbe fact of a completed gift. 20 Cyc. 1222.
    Proof of a fact tending to show a moral consideration for a gift is not irrelevant, especially when it is attempted to be shown by tbe opposite party that tbe declaration of tbe alleged donor, by which tbe gift is sought to be established, were made in jest. 20 Cyc. 1221, 1223.
    Tbe declarations and admissions of a donor, either before or after tbe alleged gift, unless too remote or inconsistent, with an intent to give, are admissible, as bearing on bis intentions, for the purpose of establishing tbe gift. Prior or contemporaneous declarations of tbe alleged donor are also admissible to show that a certain transaction was not intended as a gift; but when the gift is once established, his subsequent declarations are ineffectual to invalidate it. Nelson v. Iverson, 17 Ala. 216.
    'Whether or not there is sufficient evidence to be submitted to the jury on the question of a gift inlet vivos, it is for the court to determine; and if the trial court has not abused the discretion vested in it, the finding will not be disturbed. 53 Pa. St. 108, 123 Mich. 44, 6 Tex. 516, 24 Ala. 9, 124 Iowa, 401, 170 Mass. 445, 33 Vt. 639, 78 N. T. 446.
   Whiteield, C. J.,

delivered the opinion of the court.

■We think the right result has been reached in this case. It is true that the testimony of Mrs. Wheeler to the effect that Mrs. Stratton and Miss Louise Williams agreed that if Miss Williams died first Mrs. Stratton should have the property, and if Mrs. Stratton died first Miss Williams should have the property, does not establish a gift inter vivos. Wilson v. Jourdan, 79 Miss. 133, 29 South. 823. It was in itself a futile effort to make a parol will. The alleged gift was not to take effect in prcesenti> and was not unconditional or irrevocable. But Miss Williams, by her will, bequeathed this parlor set of furniture (which it is a great misfortune was not consumed in the conflagration which destroyed Mrs. Stratton’s home) to her sister, Mrs. Irene Williams. Mrs. Stratton and Mrs. Irene Williams were the executors of Miss Louise Williams. Mrs. Stratton declined to act, and Mrs. Irene Williams acted during the two years intervening between the death of Miss Louise Williams and Mrs Stratton; the former dying in 1906 and the latter in 1908. The testimony conclusively shows that Mrs. Irene Williams visited her sister, Mrs. Stratton, constantly, saw this parlor set of furniture in Mrs. Stratton’s home, where it had been since 1863, every week, and never claimed it, and never said one single word to indicate any claim of ownership on her part of this furniture against Mrs. Stratton. It is further shown that Mrs. Irene Williams never returned any appraisement of this parlor set of furniture, and never inventoried it. It is further shown that Mrs. Stratton left a will in which she bequeathed this furniture, referring to it as “my parlor set of furniture.”

We think it is very probable — indeed, the only rational probability — that Mrs. Stratton and Mrs. Irene Williams both treated the long use of the furniture, and the conversation testified to by Mi’s. Wheeler, between Mrs. Stratton and Miss Louise Williams, as having constituted a valid gift from Miss Williams to Mrs. Stratton of this furniture, and, further, also, that Mrs. Irene Williams intended, by her conduct, herself to ratify that supposed gift by acquiescing'in it — in short, by giving it herself, inasmuch as she was the owner under the will of Louise Williams, and never, as stated, set up any claim, though constantly in the home of Mrs. Stratton, and necessarily seeing the furniture constantly. It seems incredible that there could have been any other understanding between Mrs. Stratton and Mrs. Irene Williams, who was clearly the owner of this property, after Miss Williams’ death, than that Mrs! Irene Williams intended, by her conduct, to confer the property on her sister, Mrs. Stratton. If a contrary verdict to this view should have been rendered, it would be extremely unsatisfactory and exceedingly difficult, if not impossible, to uphold.

We are of opinion, on the whole case, certainly a most disagreeable one, that justice has been done. Wherefore the judgment is affirmed.  