Green v. Otter
| Decision Date | 30 September 1842 |
| Parties | Green et al. v. Otter. |
| Court | Kentucky Court of Appeals |
Trusts and Trustees. Lapse of time.
APPEAL FROM THE EDMONDSON CIRCUIT.
Monroe for appellants
Morehead & Reed and Cates & Lindsey for appellee.
The case stated.
IN April, 1790, Ann Cobb and John Jacob Otter, who were soon afterwards intermarried, made an ante-nuptial contract in consideration of their contemplated union, whereby she conveyed to a trustee, William Boswell, her estate consisting of some slaves and other moveables, in trust for securing the profits to the use of herself and husband during his life, reserving to herself a power of appointment, by will, during her coverture, and providing that, in the event of her death whilst covert and without making an appointment, the trust property, with its increase, should go " to the heirs of her body equally."
During the subsistence of the marriage, she and her husband, with the trustee's concurrence, exchanged one of those slaves for another female slave and child--the husband perhaps paying £ 20 as boot.
In November, 1821, Mrs. Ann Otter, then covert, conveyed by deed, Barbara, a child of one of the slaves obtained by the said exchange, and also two other slaves, Albert and Joanna, to trustees for the separate use of her married daughter, Elizabeth Green, during her life, remainder to her children. And, in July, 1823, Green and wife, and Mrs. Otter herself, being about to remove from Virginia to Kentucky, the trustees in the deed of 1821 conveyed the same slaves, upon the same trusts, to Harman R. Otter, who permitted Mrs. Green to enjoy the possession and use of them, until about the time of her death in 1828, when he took possession of them as trustee of her children--who in 1834 filed a bill in Chancery for enforcing their claim to the slaves and their increase.
On the final hearing, the Circuit Judge decided that Mrs. Otter's deed of 1823, was void, either because, in his opinion, she had no power to make an appointment otherwise than by will, or possibly because he thought she had no right of disposition--and also decided that all the slaves passed, by operation of law, to the heirs of John Jacob Otter, deceased, and that his son-in-law, Green, the father of the complainants, was entitled, in virtue of his marriage, to his wife's portion thereof, as one of those heirs. The complainants appeal to this Court, and we are clearly of opinion that the decree is radically erroneous.
Decree of Circuit Court.
It is perfectly evident that John Jacob Otter had no other interest in the slaves embraced in the deed of 1790, than that which he derived from that contract, which undeniably limited his interest to the profits during his life. When, therefore, he died in 1823, his interest terminated and he had, of course, nothing to transmit.
By an ante-nuptial contract, the wife conveys her slaves in trust for the benefit of herself and husband during their joint lives; and upon the death of the husband to revert to the wife, reserving the power of disposition to the wife by will, during the coverture. The wife and trustees convey to other trustees, for the benefit of the children of the wife, the husband dies leaving the wife, his heirs have nothing in the slaves.
Nor can there be any doubt that the slaves procured in exchange for one of the trust slaves, with the concurrence of all the parties to the ante-nuptial contract, should be considered as held, ever afterwards, under the original trust. The fact that J. J. Otter may possibly have paid a small...
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