Williams v. Young, 227 N.C. 472 (1947)

May 21, 1947 · Supreme Court of North Carolina

227 N.C. 472

SOL WILLIAMS, Admr., v. McCULLERS YOUNG et al.

(Filed 21 May, 1947.)

1. Gifts § 1—

Evidence that the owner gave • intervener the property in dispute and that the gift was completed by delivery of the property to the donee held sufficient to support intervener’s claim to the property by gift inter vivos.

2. Evidence § 32—

Where, in claim and delivery by an administrator, the replevin bond of defendant is superseded by a replevin bond given by intervener, the surety on the original bond has no pecuniary interest in the outcome of the action and is competent to testify for intervener as to a declaration made by decedent.

3. Evidence § 43b—

In an action in claim and delivery by an administrator, testimony by a disinterested witness as to a declaration made by decedent that the property in suit belonged to intervener, is competent as a declaration against interest.

4. Evidence § 43a—

In an action in claim and delivery by an administrator, testimony as to declaration made by deceased to the effect that she had “loaned” rather than “given” the property to intervener claiming by gift inter vivos, is held incompetent both on the ground that it is hearsay and on the ground that the declaration is self-serving.

5. Appeal and Error § 6c (4) —

Where the record fails to show what the witness’ answer would have been if permitted to testify and the relevancy or materiality of the answer is not made apparent, assignment of error to the exclusion of the testimony cannot be sustained.

Appeal by plaintiff from Carr, J., at January Civil Term, 1947, of FRANKLIN.

Civil action in claim and delivery instituted by administrator against McCullers Young to recover cow and calf as property of the estate.

Lena Kearney Young, wife of the defendant, with leave of court, intervened, executed replevin bond, and alleged that she was the owner “in fee simple” of the property seized.

From an adverse verdict and judgment, the plaintiff appeals, assigning errors.

G. M. Beam for plaintiff, appellant.

Yarborough & Yarborough for defendants, appellees.

Stacy, C. J.

The plaintiff, administrator, is a son of Eliza Williams, who died 21 March, 1946. Lena Young is a granddaughter of the deceased. It is admitted that tbe property in question, a cow and calf, was originally owned by tbe deceased. Tbe intervener claims tbe property by gift inter vivos from ber grandmother some fifteen months before her death.

There was evidence on behalf of tbe intervener tending to support ber claim to tbe property by gift inter vivos. Gross v. Smith, 132 N. C., 604, 44 S. E., 111; Patterson v. Trust Co., 157 N. C., 13, 72 S. E., 629. Lenora Eoster, a disinterested witness, testified that she was present and beard tbe deceased say: “Lena you can have my cow.” They were then at tbe home of Sol Williams. “Tbe cow was there too. ... I didn’t bear ber say anything about lending tbe cow to Lena.” . Tbe gift was completed by delivery of tbe property to tbe donee. Parker v. Mott, 181 N. C., 435, 107 S. E., 500, and cases there cited.

Another witness for tbe intervener was ber father-in-law, J. C. Young, who was surety on tbe first replevin bond given by McCullers Young. This bond, however, bad been superseded by tbe later replevin bond given by tbe intervener. His testimony was to tbe effect that just prior to tbe marriage of bis son to tbe intervener, be beard tbe deceased say “tbe cow belonged to Lena.” Tbe ruling that tbe interest of tbe witness did not disqualify him to speak in the case would seem to be correct. Cf. Mason v. McCormick, 75 N. C., 263. In no event could McCullers Young and tbe surety on bis bond be held liable for the return of tbe property or for costs. He bad no pecuniary interest in tbe matter. Tbe evidence is competent as a declaration against interest. Smith v. Moore, 142 N. C., 277, 55 S. E., 275. Tbe exception is not sustained.

Tbe plaintiff offered to show by Charlie Spivey that he beard tbe deceased say, only a few days before ber death, “that she loaned tbe cow to Lena so she could have milk and butter for ber two children.” On objection this evidence was excluded. Tbe plaintiff excepts and has pressed tbe exception with vigor. Tbe ruling is supported by a number of decisions. In tbe first place, it is hearsay, Chandler v. Marshall, 189 N. C., 301, 126 S. E., 742; and, secondly, it is self-serving. Barker v. Ins. Co., 163 N. C., 175, 79 S. E., 424. There was no error in its exclusion.

While on tbe witness stand, the administrator was asked whether any claims bad been filed against tbe estate. An objection to tbe question was interposed and sustained. Tbe record does not show what the answer would have been. In re Smith's Will, 163 N. C., 464, 79 S. E., 977. Nor is its relevancy or materiality apparent. Tbe assignment cannot be sustained.

Perhaps it should be mentioned, as worthy of preservation, that tbe intervener alleges she is tbe owner “in fee simple” of tbe cow and calf in question. Tbe quality of ber title, however, was not determined on tbe bearing as tbe jury only found tbe plaintiff was not the owner.

A careful perusal of the entire record leaves us with the impression that no reversible error has been made to appear. Hence, the verdict and judgment will be upheld.

No error.