Davis v. Davis

• Decision Date: 30 April 1838
• Citation: 5 Mo. 183
• Parties: ELIZABETH DAVIS v. THOMAS J. DAVIS.
• Court: Missouri Supreme Court

5 Mo. 183

ELIZABETH DAVIS

v.THOMAS J. DAVIS.

Supreme Court of Missouri.

April Term, 1838.

U. WRIGHT, for Appellant. Cited, 5 Johns. Ch. R. 482; 2 Vernon, 612; 2 Atkins, 62 and 377; 1 Atkins, 63; 5 Munford, 482; 1 Russell, 485; 1 Fonblanque, 269; 3 Coke (book 3), 328, top 325, 333, note G, 328.

E. BATES, for Appellee. Cited, Rev. Code of 1825, p. 790; Rev. Code of 1835, p. 617; 7 Peters' R. (Brasher v. Wash), 616.

MCGIRK, J.

Elizabeth Davis filed a bill in chancery, in the Circuit Court of Marion county. The bill states that in the year 1801, the complainant was married to one Shadrach Davis, and that she had by that marriage one son, Thomas J. Davis; that she lived with Shadrach Davis till the 7th of May, 1832, when her husband departed this life, possessed of an ample estate and property. The bill states, that in the latter part of the life of said Davis, he became much diseased with the consumption, and was bed-ridden for a long time, and finally died at the time aforesaid. The bill then charges that a short time before his death, on the 19th day of March, in the same year, he executed his last will and testament, by which he devised to his son Thomas, the only child of the marriage, all his property, real and personal, after the payment of his debts, except so much as would support his wife, said Elizabeth, during her life-time, with a request contained therein that she should live with her son Thomas during her life. The will is made an exhibit. The bill also shows that the said will was duly proved, and that Thomas Davis, as executor, took upon himself the execution of the same. The bill then charges, that on the same day, and at the same moment the will was executed, said Shadrach executed a deed to Thomas J. Davis for five valuable negroes, to-wit: Fielder, sr., Fielder, jr., John, Darcus, and Anthony, which deed sets forth on its face, that said Thomas had taken up that day a note of said Shadrach's, due one Moses D. Bates, for the sum of two hundred and thirty-one dollars, and substituted his own note in its place; and that in consideration of the premises, and the further consideration of natural love and affection, said Shadrach conveyed said negroes to said Thomas as his own absolute property; a copy of which is exhibited. The bill further states, that after allowing her lawful share of her husband's other property, the said slaves so conveyed by deed, were by far the most valuable part of the estate of said Shadrach; and that the part passed by the will was not of any great value; and that the remainder of the slaves were almost valueless, and almost a charge upon the estate. The bill states that the complainant renounced the provisions and benefits of said will in her favor. The bill also shows that the complainant made an ineffectual attempt to compel the said Davis, as executor, to inventory the said five negroes as part of the estate of Shadrach Davis, which he refused to do, but claimed the same as his property under the deed. The bill then charges that said deed was made in fraud of her dower right in the estate of her husband; and that the same was a fraudulent contrivance to prejudice her rights; and that the same was made with the avowed design of depriving her of her rightful portion of her husband's estate, which she would have been entitled to had her husband died intestate. The bill charges, also, that the deed was made with the intent of preventing the complainant from obtaining her portion of the estate, in case she should renounce the will; and the defendant was told, that in case the will of S. Davis did not suit the widow, she might renounce it, and have her share as in case of intestacy.

The defendant took counsel here to cut off the complainant of her just share. The bill states, that at the time the deed and will were executed, the said Shadrach was in a very low condition, and in the last stages of consumption, bedridden, and had to be held up when he executed, with conscious certainty of approaching death, he having then no hope of recovery; that at the time the deed was made, the defendant lived in the same room with his father, and worked the negroes aforesaid; and that there was in fact no delivery of the slaves, as pretended by said deed. The defendant and said negroes remained on the place till the father died, as above stated. The bill charges, that the pretended consideration of the deed was fictitious; that M. D. Bates was present when the deed and will were made; and, also, the bill charges that the will burdened all the property of testator with the payment of debts; and the bill avers that the consideration put in said deed was in fact not the motive moving to the same, and was only colorable; and that the whole object was to defraud the complainant of all interest in the slaves arising to her as dower, and that such was the design of the defendant in procuring and accepting the deed.

The bill charges, that defendant is in possession of the slaves, claims them as his own, and refuses to assign to the complainant dower in them; and that the property of the testator is ample, besides these slaves to pay all his debts. The bill charges a combination between the father and son to defeat the wife in regard to her dower in the slaves, and calls the deed a will in disguise. The bill alleges there is no remedy at law, and prays general and special relief. The defendant demurred to the bill for want of equity. The Circuit Court sustained the demurrer, and dismissed the bill, and the cause is brought here by appeal.

Before I proceed any further, I will remark that an interlocutory decree was had at one term, and at the next term the same was opened, and the cause afterwards heard on the merits. The appellant assigns error on the opening of the decree. From the view which I shall take of this case hereafter, I deem it unimportant to dispose of this point. The error assigned is general, that the decree should have been for the complainant. With a view to bring up the merits of this case, as argued by Mr. Bates for the appellee, and Mr. Wright for the appellant, I shall begin with the objections made by the appellee's counsel to the equity of the bill. 1. The first objection is, that if the complainant has any right at all, it is at law, and that the administration act furnishes a remedy. 2. The complainant bases her right on the supposition that a right to dower and distribution is, in the life-time of the husband, a vested right. That the assumption is, the husband could not bequeath these slaves by will, and that he could not pass them by deed. 3. That the husband in this case had full power to pass these slaves by a will, and of course by a deed; and to prove this, the counsel relies on the statute of 1825, Rev. Code, 790. 4. That the general owner of property may sell the same, destroy, or give the same away at pleasure; see 7 Pet. R. 616.

The counsel for the complainant alleges that, by the statute of the State and by the common law, courts of equity can entertain dower bills, and especially a bill like the present; and for this purpose he cites Johns. Ch. Rep. 482, where the Chancellor says the right is at law, in New York; yet, if the chancery court gets lawful jurisdiction of the same, by reason of impediments being thrown in the way, that it will entertain the suit and assign dower. This has been well considered by the court, and they are unanimous that this bill, so far as it regards jurisdiction, is well brought. I am of opinion that a court of law cannot grant the relief sought here. The bill alleges a fraud on the rights of the wife, by a contrivance to get round the laws regarding wills and dower. Now, if it be true that the wife, notwithstanding the will which passed all the property to the son, except a support for the wife, is entitled to her third of the slaves, then the deed, if made to elude that which might arise to the wife, was a fraud; and of this the court of chancery has jurisdiction. The counsel for the appellee insists, however, that the County Court might compel this man to inventory these slaves as the property of the estate. This, we see by the bill, and the decision of this court between the same parties, cannot be done where the executor claims property in the thing demanded to be inventoried, and shows such strength of title as this deed shows on its face. See the case of Davis v. Davis.

The County Court has no adequate means or power to enable it to declare this deed void, nor to order it to be delivered up and cancelled, and to enforce that order. Its jurisdiction is defective on these matters. Though that court has great powers, I do not conceive it can do this. But a court of chancery can do this, if sufficient cause exist. It may be that a court of chancery may find it difficult to get on with the assignment of the dower. But if that court should think so, it may set aside...