Craslin v. Baker

• Decision Date: 31 January 1844
• Parties: CRASLIN ET AL. v. BAKER.
• Court: Missouri Supreme Court

8 Mo. 437

CRASLIN ET AL.

v.BAKER.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM HOWARD CIRCUIT COURT.

HAYDEN, for Appellants. The property taken and sold by defendants, if the property of the estate of the deceased, Hanks, was properly sold as against the plaintiff, and whether the same were of the estate of the deceased, Hanks, was a question for the decision of the jury. 2. The court erred in not giving the instructions prayed for by defendants. 3. The court erred in giving the opinion which it gave to the jury upon their return into court, after having retired from the bar to consider of their verdict.

4. The court erred in not setting aside the verdict, and in refusing a new trial to the defendants. See Statutes, Digest, 1825, p. 102, § 30; Digest 1835, p. 148, §§ 27-30.

TODD and LEONARD, for Appellee. 1. The first, third, and fifth instructions of defendants were properly refused, for a person even having legal right to property is not justified in taking possession of property, to commit a trespass, with force. 2. The second and fourth instructions were properly refused, because they contain an abstract proposition, and too general in terms, and the title of the defendants not involved, and because time and possession will give right to personal property without administration, where possession is under color of legal title. 3 Bacon Abr., 21, note. 3. The weight of evidence was for the plaintiff, and the verdict was for the right party. 4. The plaintiff's instructions were right. 5. The defendants did not except, although objecting to a previously expressed verbal opinion of the court. 6. The statute of 1824 gave the widow a right to $150 worth of property; she retained under that right, and is entitled to the increase. 7. The administration was taken under color to deprive the plaintiff of his property, and should not justify a trespass, in taking and selling estate secured to the widow by law, the administration having power only to appraise the original stock, and take the widow's receipt for it. Mo. Dig., 1824-5; Toller, 228, and note; 3 Bacon, 21, and note; 6 Litt. 81.

TOMPKINS, J.

This is an action of trespass, commenced by Morris Baker against James Craslin, David Hanks, William Hanks and others, in the Circuit Court of Saline county. From this court the suit was transferred to Howard Circuit Court; there a judgment was obtained against the defendants, from which they appealed to this court.

In the year 1838, Baker, the appellee, married the widow of one Zachariah Hanks, who had died in November, 1831, in Saline county, leaving nine children, who lived with their mother, and were raised by her, until she intermarried with the plaintiff. The eldest was nineteen years old at the death of his father. When the deceased, Hanks, was on his death-bed, he told one of the witnesses of the defendant, that he owed about seventy dollars, and that he was leaving his family destitute, as his property would not pay his debts and support them. This witness says, the property left by Hanks, at his death, was not worth the seventy dollars; “that he knows the old lady, by selling pork that winter, and with her boys' work afterwards, paid a debt of the old man's, of $32 or $33, to Craslin.”

Another witness of the defendants proved that one of the minor children, with the consent of his mother, hired himself to this witness for a year; that he, the witness, paid this minor, some in clothing, some in bacon, and also assumed and paid to one Compton a debt of thirty dollars left by the old man, Hanks, at the time of his death.

It was also proved, that the widow paid the funeral expenses of her deceased husband, and that she paid to one of the witnesses four dollars, which the deceased, in his life-time, owed to the witness. On the 20th day of July, in the year 1839, David Hanks, one of the sons of the deceased, took out letters of administration on the estate of his deceased father. This was done nearly eight years after the death of the father. One of the sons of the deceased, Jesse Hanks, called by the defendants, states, that when his father died, in 1831, he left nine children, himself the eldest; that his father had, at the time of his death, two cows and calves, one or two yearlings, and between fifteen and thirty head of hogs.

After David Hanks, as aforesaid, had taken out letters of administration, he and the other defendants went to the house of the plaintiff, Baker, and forcibly took and carried away some cattle found there; and the last-mentioned witness states, that all the stock taken and sold by David Hanks, his brother, “was the natural increase of the stock on hand at the time of the death of his father, with some trifling exceptions of a stray cow left on hand at the death of his father, one yoke of oxen, which he had gotten in exchange for a stray left by his father.”

There was some contradictory testimony as to the origin of the stock. Some of the testimony went to prove that a part of the cattle, &c., taken away by the administrator, was the increase of cows purchased by the widow. But it is not material to the present purpose whether it were or not.

A witness called by the plaintiff represents the quantity of hogs left by the deceased as somewhat less than the son of the deceased above-mentioned, called by the defendants, stated it to be; and further said, that the family, the winter of the death of its head, used such of the hogs as were fit for pork, and made beef of one cow; and that, at the time of the sale of the property by David Hanks, under the letters of administration, there were about sixteen head of cattle, including one yoke of oxen, and about one hundred head of the hogs; some of the children appear to have been supplied with cattle when they left their mother. The plaintiff had been married, and in possession of the stock more than a year before it was taken by the administrator, David Hanks.

On this evidence, the defendants moved the court to instruct the jury. 1. That in case they find the property sued for was taken and sold as the property of Hanks, deceased, by an administrator, and that the property taken and sold was the natural increase of the stock on hand at the time of his death, that then the administrator had a legal right to the property, and was not a trespasser by taking the property and selling it. 2. That by the law, no person can acquire a right to the effects of a deceased person who dies intestate, except by administration, except as excepted by the statutes of this State in favor of families. 3. That if, in this case, the jury believe, from the evidence, that if the wife of the plaintiff had taken into her possession property of her former husband without any grant of administration, and that that property, and its natural increase, is the property now sued for, and that the trespass complained of was the taking of the same by a lawful administrator as the property of the deceased, and selling the same as such, that in such case the defendant David Hanks, the administrator, was not guilty of a trespass, and in this action the jury ought to find for the defendants. 4. That if Mrs. Baker took the personal property of her deceased husband into her possession after his death, and he died intestate, she, by such act, acquired no right in such property as against a lawful administrator of her deceased husband, Hanks, and that the natural increase of said cows and hogs also belongs, in law, to the administrator, to be administered according to law. 5. That if Mrs. Baker is found by the jury, from the evidence, to have been the wife of Hanks, at the time of his death, and he died intestate, and she took the cattle and hogs of her deceased husband into her possession, and used them as her own, that in such case she has acquired no legal right either to the cattle or hogs, or to their natural increase, so taken into her possession, as against a lawful administrator of the deceased; and that the plaintiff, Baker, by his intermarriage with her, acquires...