Erwin v. Henry

• Decision Date: 31 August 1838
• Citation: 5 Mo. 469
• Parties: ERWIN v. HENRY.
• Court: Missouri Supreme Court

5 Mo. 469

ERWIN

v.HENRY.

Supreme Court of Missouri.

August Term, 1838.

CARTY WELLS, for Appellant, cited: 2 Bibb, 298; 1 Mar. 532; 1 Wil. 333; 3 do. 141; 1 H. Bl. 223; 2 do. 144, 450, 451; 1 Sto. 560, 529 to 540 and 473; 2 Tuc. Com. 492; 1 do. 437; 1 Mit. 144; 1 J. C. R. 620, 166; 6 Con. R. 500; 1 Sto. Com. 323, 509 to 514, 80, 533, 64, 512, 967; do. 328, 329, 453; 2 Blk. Com. 494; 3 do. 98; 4 Bell, 266; 3 Whea. 221, 223; 3 Pet. 433, 447; 1 Tuc. Com. 499; 8 Vez. 380; 2 Ch. 6; Rev. St. Mo. 155, § 8; 2 Vez. 285; 3 Wil. 141; 2 H. Blk. 444, 850, 851; 1 do. 223; 1 J. C. R. 498, 620, 116; 6 Con. R. U. S. 500; 1 Tuc. Com. 449; 8 Vez. 380; 2 Mad. Ch. 6; 2 J. C. R. 339; Mo. L. 508, § 2.

. BATES, for Defendant, cited: Rev. Code, 156; 2 Wm. & Ex. 1186; 7 S. T. R. 690.

MCGIRK, J.

In 1836, Erwin filed her bill in the Circuit Court of Lincoln county, praying that court to decree to her a specific legacy which she alleges was bequeathed to her by the last will and testament of one Malcom Henry. The bill was demurred to for want of equity, and was dismissed by the court. It appears by the record that the testator, Malcom N. Henry, made his last will and testament, and shortly thereafter died. The will commences with the usual solemnity, and then says that after the burial expenses are paid, and all his debts are paid, the following disposition of the property shall be made: “Item 1st. It is my will and desire that my boy, Adam, Juno and Cynthia, be released from bondage, on condition that Juno serve my sister Mary one year; Adam and Cynthia to serve the executor of my estate, or serve them to whom he hire them. Adam to serve two years, and Cynthia to serve four years, each then to have their perfect freedom, provided my sister may quit her claim to Juno; otherwise, the property I will to her shall hereafter be equally divided between my brothers and sisters: my desire is to pay sister Mary well for her claim on Juno.” The will then goes on to make several specific bequests and devises of real estate, apparently to a considerable amount. Then the will declares thus: “My crop of grain, farming utensils, household and kitchen furniture, and stock, all of which I want valued and acted on according to law, after my affairs are settled; then, if there is a residue from hire of negroes, crop, &c., I wish it to be given to Eleanor Erwin. I appoint Francis Henry my sole executor,” &c. The bill charges that the executor took upon himself the execution of the will; made certain inventories, appraisements, &c. and also, certain settlements with the county court of Lincoln county; paid the specific legacies; sold the personal property of the testator, required by the will “to be acted on according to law.” The bill charges that during the four years Cynthia, the female slave, was required to serve before her freedom commenced, she had borne a female child, which, by the will, was wholly undisposed of, and that the same thereby fell into the general residue; that the complainant is entitled to said child as residuary legatee after the payment of debts. The bill alleges that all debts are paid; that considerable sums of money came to the hands of the executor which he has rendered no account of; that he embezzled divers goods, chattels and effects belonging to the testator; has rendered no account of the hire of the slaves; that he privately and against law, opened a certain trunk of deceased, which the bill alleges contained valuable property, and that he has rendered no account of it; that he claims the female child, the slave, as his own; that he made unjust and unfounded charges of expenses for administering the estate; that, deceiving said court, has made a settlement of his executorship, by which settlement no residue is left. The bill charges divers other mal-practices, and prays for a discovery of assets, a re-settlement of accounts already settled, and that the slave may be decreed to her, and for general relief. On the argument of the cause here, Mr. Bates, of counsel for the defendant, Henry, has made several objections to the claimant's right to recover, the first of which is, that the matter of the complaint belongs exclusively to the county court. The second is, that in regard to the matters already settled by the county court, as no appeal was taken from that court, its proceedings, as far as they go, are conclusive, and third, that by the true construction of the will, the slave does not pass to the complainant by the residuary clause, but falls into the general assets. Mr. Wells, for the complainant, insists that, by the British chancery law, it was a peculiar power of courts of chancery to decree the payment of legacies, particularly the payment of residuary legacies, and that that court took cognizance of accounts of executors and administrators, and compelled them to discover assets and render just accounts; and to prove this he cites many authorities. See Mitford, 114; 1 Johns. Ch. R. 620; 1 Story's Com. 599, 509 to 514. I have no doubt of the power of the chancery court in England, and that it has the power claimed for it by the complainant's counsel as to this matter. The counsel for the defendant admits that such is the case; but he contends that all matters relating to the payment of legacies, the due execution of wills, and the settlement of deceased persons' estates, are exclusively given by the act of the General Assembly to the county court; therefore, the bill was rightly dismissed for want of jurisdiction in the court as a court of chancery.

By the 15th section of the act respecting county courts, it is enacted that the county court shall have, first, exclusive original jurisdiction in all cases relative to the probate of last wills and testaments, the granting letters testamentary and of administration, and repealing the same. The second clause then proceeds to enumerate other instances of jurisdiction, but drops the words “exclusive original jurisdiction” In the third paragraph, power is given to settle the accounts of executors, administrators and guardians, but still the words “exclusive original jurisdiction” do not occur. Yet we must at least read here that the jurisdiction is to be original and not appellate, and I see no great reason why we may not read also, that the jurisdiction shall be exclusive as well as original, so far as the mere tacking of sense and sentences is concerned. This idea is also strengthened by the fact, that in the seventh instance, the act says the county court shall have concurrent jurisdiction with the Circuit Court in all such cases, where the demand shall exceed that sum--that is, a sum just enumerated in the sixth instance, which is the sum of $100. I should have no doubt the words “original exclusive jurisdiction” would well pervade the statute till the 7th clause, if it were not apparent that the concurrent power in the 7th clause mentioned, is only mentioned for the purpose of parcelling out the objects of the concurrent authority in the 6th and 7th clauses only. If, indeed, the concurrent power is to be carried up to the 7th clause by implication, the same rule would carry the concurrent power to a great length beyond the 7th clause. In the 9th clause, both courts would have power to control and manage the property of the county; in the 10th, both would have power to purchase property for the county; in the 11th, to sell the same; and 12th, to audit and settle accounts against the county. For these reasons, I cannot admit that the exclusive jurisdiction in the first clause mentioned goes beyond that clause; nor that the concurrent jurisdiction mentioned in the seventh clause goes beyond it. Then, whatever is given to the county court belongs to it, and that given to the Circuit Court belongs to it properly; and that wherever the subject of litigation is given to both courts without some exclusive words in that matter, the jurisdiction is concurrent. By the 1st section of the amended Constitution, the Supreme and Circuit Courts are invested with chancery power, to be exercised in such manner as shall be prescribed by law; and by the 2d section, the whole judicial power, as to matters of law and equity, is vested in the Supreme Court, Circuit Courts, and County Courts. This power is to be exercised in the manner prescribed by law. The...