
    Martha E. Cockrell et al. v. Claude Cockrell.
    1. Estate op Decedent. Witness. Competency. Code 1892, l 1740. Equitable assignment. Specific enforcement.
    
    The original beneficiary of a life insurance policy is a competent witness in a suit against the estate of the insured to proye acts, occurring in his lifetime, which effected an equitable assignment of the policy in favor of a third person to whom the witness had consented it might be made payable, although by the fraudulent acts of the insured' it had been made payable to his legal representatives.
    2. Same.
    In such case the witness does not establish his own but the as-signee’s claim and hence is not incompetent, under Code 1892, § 1740, providing that a person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person which originated' during the lifetime of such deceased person.
    Erom tbe chancery court of Leflore county.
    Hon. Carey C. Moody, Chancellor.
    Claude Cockrell, the appellant, was complainant in the court below, and Martha E. Cockrell and others were defendants there. Erom a decree largely in favor of the complainant, defendants appealed to the supreme court, and the complainant prosecuted a cross appeal from that part of the decree in defendant’s favor.
    The facts are fully stated in the report of this case when it was heretofore in the supreme court. See Gockrell v. Gock-rell, 79 Miss., 568. Suffice it to say here that the purpose of the bill was to have it adjudged that Claude Cockrell was an equitable assignee of a policy of life insurance on the life of William M. Cockrell, his father. The insurance policy was originally payable to Mary V. Cockrell, wife of William M. Cockrell, and tbe mother of the complainant, Claude. Claude’s father and mother were divorced, and after the divorce the mother, being the owner of the insurance policy on the life of her divorced husband, the husband applied to her for the possession of the policy and obtained the same on the promise that he would have the insurance company change the beneficiary and have the policy made payable to Claude. The mother surrendered the policy upon the faith of the promise that the policy would be so changed, and she was fraudulently induced to sign an application to the insurance company for the change, believing that the application asked that the policy should be made payable to her son Claude, but in truth the application which she was fraudulently induced to sign asked the company to make the policy payable to the' legal representatives of the insured. The father, after obtaining possession of the policy, caused it, by the use of the fraudulent application, to be made payable to his legal representatives, and by his will devised the policy to his mother, appellant, Martha E. Cockrell. It was shown in evidence that Martha E. Cock-rell advanced the sums of money mentioned in the opinion to her son, Claude’s father, on the faith of the execution of the will, and she looked to the will for reimbursement; When the case was in the supreme court the first time, 19 Miss., 568, it was adjudged that the facts, stated in the bill of complaint herein, constituted an equitable assignment of the policy to Claude. Other facts are stated in the opinion of the court.
    
      McWillie & Thompson and 8. B. Ooleman, for appellants and dross appellees.
    We propound the proposition, that under the facts of this case Mrs. Mary V. Cockrell was not a competent witness, and if we maintain this proposition manifestly the decree appealed from should be reversed. Was Mrs. Mary V. Cockrell a competent witness? Our statute, § 1140, Code 1892, provides that a person shall not testify as a witness to establish his own claim or defense against tbe estate of a deceased person wbicb originated during tbe lifetime of tbe decedent. On this statute we ask the court to adjudge that Mrs. Mary V. Cockrell’s deposition was incompetent testimony. It is true, tbe statute adds, that “a person shall not testify as. a witness to establish any claim be bad transferred since tbe death of such decedent,” and th”is court, in tbe case of Fewell v. Fewell, 64 Miss., 635, adjudged that if the assignment be made before tbe death of tbe decedent, tbe assignor is a competent witness. We insist in this case that there was no assignment of tbe cause of action by Mary V. Cockrell, certainly none during tbe lifetime of her husband, against whose estate tbe claim is now propounded, and in fact there was no assignment of tbe cause of action sued upon until it culminated in tbe decree appealed from.
    
      The very object of the suit was to establish an assignment. Tbe suit proceeds upon tbe idea that tbe legal title to tbe policy of insurance was in tbe appellant under tbe will of William M. Cockrell. Tbe policy, as changed, was payable to tbe administrator of William M. Cockrell. By tbe will of William M. Cockrell, it was devised to the appellant. When was an assignment made? It was never made. The object of the suit is to have it made. It will not do to invoke the equitable rule which regards as done that which ought to have been done, so as to take the witness, Mary V. Cockrell, out of tbe condemnation as a witness found in tbe statute, § 1740, Code 1892. The doctrine that tbe assignor of a cause of action, where the assignment was made before tbe death of tbe decedent, is competent cannot be stretched so as to make a person competent when the question is whether such person ever made an assignment. To so hold would be to make a witness’ competency depend upon what he swore. Suppose Mary V. Cockrell was antagonistic to the rights of Claude; suppose the suit had been brought by some other person as the next friend of Caude, and that Mary V. Cockrell was a defendant in the suit, and suppose her interest would be promoted by holding that there bad never been an assignment from ber, and suppose sbe was asserting’ a claim against tbe estate of ber deceased husband) predicated of tbe fact that sbe bad never made an assignment, would sbe clearly not be incompetent to testify as against tbe estate of ber deceased husband?
    Tbis is a suit against tbe estate of tbe deceased William M. Cockrell. Whether Claude has any claim against tbe estate or not depends upon whether there was an assignment by bis mother to him equitably, or otherwise. If there was no assignment, bis mother, Mary Y. Cockrell, could not testify in the case. If sbe could not testify in tbe absence of tbe assignment, sbe cannot testify where the very point in the suit is whether or not she ever made an assignment. It will not do to adjudge that sbe was competent if ber competency depends upon what sbe swears; but that is exactly what has to be done in tbis case in order to adjudge tbe woman a competent witness.
    If there was no equitable assignment in Cockrell’s lifetime, tbe woman is certainly an incompetent witness to establish tbe claim even if sbe assigned after Cockrell’s death. Can ber competency depend upon what she swears touching the very matter in dispute ? Certainly not, and yet to bold her competent you must do tbis very thing.
    Of course, even at common law, where interest disqualified, a witness could be examined collaterally to determine whether be were or were not competent, an examination for tbe guidance of tbe court but not for tbe jury. But it was never permissible to receive tbe evidence of a witness, whose competency was challenged, touching tbe very issue to be tried, until bis competency was determined, and competency could not be determined by what tbe witness swore touching tbe main issue in tbe case.
    It will not do to assume tbe very point in issue in order to adjudge a witness competent. Tbis you must do in order to support Mrs. Cockrell’s deposition, and you must assume tbe assignment only on ber testimony. Tbe chancellor erred in so doing.
    
      It is no answer to say tbat onr objection to tbe witness assumes tbat no assignment was made in Cockrell’s lifetime, tbe point in issue, because tbe burden of proof is on tbe appellant. Under tbe pleadings, tbe prima facie case is with us and we may stand upon it until it is overthrown by tbe testimony of competent witnesses.
    
      Lomax & Tyson, for appellee and cross-appellee.
    'As to tbe right of Mary V. Cockrell to testify in this case, that is settled by the opinion of tbe court in Y9 Mi'ss., 569, when this case was before it; tbe court said she was not a necessary party to tbe suit, and as she is not a party to tbe suit, not trying to establish her own claim against tbe estate of tbe deceased, her testimony is certainly admissible to prove Claude’s claim. Tbe mother can testify to sustain tbe claim of her child against the estate of a deceased person. 85 Pa., 353; 151 Pa., 294.
    
      McGlurg & Gardner, on same side.
    Tbe chancellor erred in allowing Mrs. Martha E. Cockrell tbe amount of her open account against her son William M. Cockrell, for small sums of money advanced him at different times and for sundry purposes. His error grew out of a misconstruction of Judge Terral’s language in tbe former decision of this ease, 19 Miss., 569, where be said tbat Mrs. Martha E. Cockrell was a “mere volunteer,” meaning, thought tbe chancellor, to say tbat, if she was not “a mere volunteer” tbat she bad an equitable interest to tbe amount of her advances. Tbe chancellor was mistaken, because tbe record does not support tbe claim tbat these small sums were advanced upon tbe faith or in cousideration of tbe promise to make tbe will.
   CaehooN, J.,

delivered tbe opinion of tbe court.

When this case was in this court before, Cockrell v. Cockrell, 79 Miss., 569, we reversed a decree below which sustained a demurrer to the bill, and it is now here again, this time on appeal and cross appeal from final decree on the merits. The bontést is over the right to the proceeds of a policy of life insurance.

Claude Cockrell, who' is a minor, charges in the bill that from 1893 to the date of his death, his father, William M. Cockrell, was the holder of a policy of insurance on his life in the sum of $1,000, in which policy Mary V. Cockrell, the mother of Claude, was beneficiary, and that she had the policy in possession and kept the premiums paid on it until the year 1900. That in 1899 his mother obtained a divorce from his father, after which she still retained possession of the policy until the spring of the year 1900, when her former husband, William M. Cockrell, persuaded her to give him possession of it, giving as his reason his wish to. have possession of it in order to have it changed so as to be made payable to Claude, who was the only child of the marriage, and that this was a mere fraudulent pretense, used to deceive Mary V. Cockrell, and in order to defraud her and Claude. That this fraudulent pretense induced her to part with the possession of the policy and to sign the release of her right as beneficary, which she did at the instance of William M. Cockrell, without reading the release, and under the belief that Claude’s name was in it, not thinking the man would perpetrate a fraud upon her and his own child.

But that in fact, William M. Cockrell, in pursuance of his fraudulent purpose, had inserted his own name in the release and the policy as beneficiary instead of the child’s. That a few months thereafter, William M. Cockrell died, having attempted to bequeath the proceeds of the policy to his mother* Martha E. Cockrell, the appellee in this case, and that then, for the first time, did Mary V. Cockrell and her son Claude have any knowledge that William M. Cockrell had not carried out bis promise, but bad perpetrated tbis fraud upon Claude. The prayer of the bill is that the life insurance company, be required to pay the proceeds of the policy to Claude just as if William M. Cockrell bad carried out bis! agreement with Mary V. Cockrell, and just as if Claude’s name bad been inserted in the policy as beneficiary, as it should have been.

Mrs. Martha E. Cockrell, the mother of William M. Cock-rell, in her answer denies that be fraudulently procured possession of the policy as charged, sets up her ownership of it and its proceeds in virtue of bis will specifically bequeathing it to her, and avers by way of cross bill that she was not a mere volunteer, but entitled, independently of the will, because of money she advanced him at various times, and that be bad “placed said policy in her bands and made bis will transferring said policy to her, said policy having been given over to her at the time said will was executed,” when she bad no knowledge of the pretended equitabe assignment.

The court decreed that the change in the name of the beneficiary was a fraud, and that the proceeds of the policy should be paid to Claude, except the sum of $101.85, which is the aggregate of the several sums advanced by Mrs. Martha E. Cock-rell to William M. Cockrell, and that much of the proceeds was decreed to her on cross appeal. This latter part of the decree we decline to disturb on the facts. Whether the former part of it shall be affirmed or reversed, depends on the sole question whether Mrs. Martha E. Cockrell was a competent witness to establish the alleged equitable assignment made in {.he lifetime of William M. Cockrell.

We concur with the chancellor in the opinion that she was a competent witness under § 1140 of the code and the numerous cases construing it. In the matter of any claim by Mrs. Martha E. Cockrell, the mother, under the will, to occupy the position of an innocent purchaser for value, we say, under the decision of the chancellor on the facts, that she is a mere volunteer, as sbe was held to be, on tbe face of tbe bill in 79 Miss., 569. In relation to ber claim for money advanced by ber to ber son, sbe is in a different category on tbe evidence.

Affirmed on appeal and cross-appeal at the costs of appellant.  