Birney v. Richardson

• Decision Date: 06 October 1837
• Citation: 35 Ky. 424
• Parties: Birney v. Richardson and Ford.
• Court: Kentucky Court of Appeals

35 Ky. 424

Birney v. Richardson and Ford.

Court of Appeals of Kentucky.

October 6, 1837

FROM THE CIRCUIT COURT FOR MERCER COUNTY.

Mr. H Marshall, Jr., for appellant.

Mr Owsley and Mr. Anderson for appellees.

Judge Marshall did not sit in this case.

OPINION

ROBERTSON CHIEF JUSTICE

This appeal is prosecuted for reversing a judgment in detinue obtained by the appellees, Landie Richardson and Elizabeth Ford, as the surviving legatees of Thomas Richardson, their deceased father, against James Birney, the surviving husband of one of the deceased co-legatees, whom he married, in the year 1800, and who died in 1834, about a year prior to the commencement of this action, for fifteen slaves, fourteen of whom are the children and grand-children of the fifteenth named Esther; who was the property of the testator, and who then childless, was embraced in his will, which--having been admitted to record in 1789, in Fayette county, in this State, where the testator died--is in these words:--" In the name of God, Amen--I, Thomas Richardson, of Fayette county, being weak in body but of sound mind, make and ordain this my last will and testament in manner and form following, to-wit--I lend unto my beloved wife Mary Richardson, all my estate, both real and personal, during her widowhood, and if she marries, at her marriage, for my whole estate, as above mentioned, to be taken out of her hands, by my executors, hereafter mentioned, and equally divided among my children Landie Richardson, Sally Richardson, Elizabeth Richardson, Lucy Richardson, and Mary Richardson--any or either of the above mentioned children should die without a lawful heir begotten of their body, then his or her part of the estate to be equally divided among my surviving children: I appoint my brother, William Richardson, James Richardson and James Arnet, to be executors of this my last will and testament" --(dated, subscribed and attested, February 2d, 1788.)

Appeal from a judg't in detinue for slaves.

The will, by virtue of which the plt'fs claimed the slaves.

In addition to the foregoing facts, it appears, from the agreement of the parties submitted to the Circuit Judge: first--that, the persons nominated as executors having refused to undertake the trust, the testator's widow was duly appointed administratrix with the will annexed. Second--that, about two years after the testator's death, his widow intermarried with David Gillespie, since dead, she still surviving; and that, after their intermarriage, he was substituted as her surety in the administration Third--that Mrs. Gillespie retained the possession of the testator's whole estate, with the exception of some occasional advances to his children, and never made or expressly consented to any division, or allotment of it among them as legatees. Fourth--That all the legatees were minors and unmarried at the testator's death; and that two of them, who married and died, between the marriage and death of Mrs. Birney, left children who are still living; and, fifth--that, not long after Birney's marriage, the slave Esther was sent to him by Mrs. Gillespie, for temporary use as a nurse, and remained with him for some time, and afterwards, being again in her possession, was taken back by him without the express consent or sanction of Mrs. Gillespie, and was ever afterwards kept and used by him, apparently as his own property; and that, whilst Esther was so possessed and used by him, the other fourteen slaves, her children and grand-children, were born.

Further facts.

Upon these facts, the Circuit Judge, being of the opinion that the appellees had a legal right to all the slaves, gave judgment accordingly.

Judgment.

If the appellees have the legal right now to maintain this action, they must derive it from the death of Mrs. Birney without issue; for no claim to a vested right on the marriage of their mother, would be available at this time, or in this action; because the lapse of time would operate as a legal divestiture, and also because, as legatees of interests accruing on their mother's marriage, they do not appear to have been entitled to more than two undivided fifth parts of the testator's estate. But if, upon Mrs. Birney's death, her surviving co-legatees were entitled, by the will, to her interest in the testator's estate, they might now recover the slaves in this form of action; because the facts authorize the deduction that--Birney having so long held and claimed them, as he must be presumed to have done, in his wife's right as a legatee, the exclusive legal right to them, in that character, and as long, at least, as she lived, should be presumed to have been consummated by the implied consent of the co-legatees, and of the administratrix cum testamento ; and the title of the appellees thus not having accrued until her death without issue, and which occurred only about a year prior to the institution of this suit, the statute of limitations could not apply.

Lapse of time (5 years) operates as a divestiture of the title of one party to slaves adversely held by another: and detinue can not be maintained on the title thus barred by time.

Legatees entitled to an undivided portion in slaves, can not maintain detinue for the whole.

Legatees entitled to the remainder in slaves after a life estate (terminated). may maintain an action to recover them, notwithstanding they may have been held ever so long (30 years in this case), by the tenant for life, or by her husband; for the plaintiff's right does not accrue, in such case, till the death of the tenant for life; and her husband (though he acquired the possession without the consent of the executor), must be presumed to have held it, by the assent of the executor and co-heirs, according to the title of the wife, and not adversely to the devisees in remainder.

It was on such a construction of the facts and of the rights of the parties, that the Circuit Judge rendered the judgment now called in question; and if that be the proper interpretation, the judgment must be sustained; because the facts being, in our opinion, such as would have authorized a jury to infer that, at the time of her death, Mrs. Birney, or rather the appellant, in his right as to her husband, was lawfully holding the exclusive title to the slaves in virtue of her right as a legatee, the like deduction by the Circuit Judge, deciding, under the agreement of the parties, upon both the law and the facts of the case, should be approved by this Court.

The judg't of a circuit judge, upon an agreed case, if sustainable in law, upon the facts and such inferences as a jury might draw from them, will be approved.

But even if, by dying without issue, the testator should be understood as intending the death of one of his legatees without issue--not between his own demise and either that or the marriage of his widow, or at any time before the legatees would be entitled to a division of the estate and the enjoyment of their legacies--but any such a dying, even at any subsequent period; and if, also, the appellant, as husband, should be considered as being, at his wife's death, entitled as much to the slaves as he would have been, had there been a formal, instead of a constructive, allotment of Esther to him, under the will--still he contends that the judgment is nevertheless erroneous: first-- because, as he insists, the limitation was too remote, and was therefore void; and, second--because, if it was valid, the representatives of the two legatees who died leaving children, are entitled equally with the appellees, who can not, therefore, maintain the action in their own names, and in their own right alone--and, third--because, as he contends, the will should be construed as having vested absolute and indefeasible interests in the legatees living at the time of the widow's marriage; and because, also, as he insists, his title was, therefore, consummated by time.

Grounds relied on by the appellant, for a reversal of the judg't.

I. Upon the hypothesis which has been stated, the first of these objections cannot be sustained.

A devise of the testator's whole estate to his wife, as a loan to her during widowhood; on her marriage, the whole estate to be taken from her, and divided equally among the testator's children; the part of any dying without issue to be equally divided among the survivors.

At the date of the will, and at the time of the testator's death, slaves passed by will as goods and chattels; and a limitation of such property might, legally and availably, have been made as remote as of real estate, which would not have been void for remoteness or indefiniteness, unless it had been extended beyond a life or lives in being, and twenty-one years, and the period of gestation; and therefore, if, by " dying without issue," the testator should be understood as intending a failure of issue living at the death, and not an indefinite failure, there can be no doubt that the limitation was legal and effectual.

It is insisted, however, that, according to the ordinary technical import of those terms, unexplained, " dying without issue," means an indefinite failure of issue; and that there is nothing in the will we are considering which should affect that fixed and arbitrary rule of construction; and that, consequently, as there might, in this technical sense, be a failure of issue at some time beyond the maximum period of legal limitation, the bequest over in this case was void.

In 1788-9, when the will was made, and when the testator died slaves (the subject of this controversv) passed by will as goods and chattels, and a limitation of them would have been legal and available, if not more remote than a good limitation of real estate, viz., after a life or lives in being, twenty-one...