Halbert v. Halbert

• Decision Date: 31 July 1855
• Citation: 21 Mo. 277
• Court: Missouri Supreme Court
• Parties: HALBERT, Appellant, v. HALBERT & OTHERS, Respondents.

21 Mo. 277

HALBERT, Appellant,

v.HALBERT & OTHERS, Respondents.

Supreme Court of Missouri.

July Term, 1855.

1. What were the terms of a parol transfer of a slave, is a question of fact for the jury, from all that was said and done, and not a question of law for the court.

2. A condition annexed to a gift of a slave, that the donee shall have children born, is valid; and upon failure of the condition, the slave will revert to the donor.

Appeal from Crawford Circuit Court.

This was an action brought by James Halbert, in 1852, to recover a slave claimed by the defendants as belonging to the estate of Nathan Halbert, their intestate.

At the trial, it appeared in evidence that Nathan Halbert was a son of the plaintiff, and that the slave was given to him by his father, and remained in his possession up to the time of his death, some ten or fifteen years afterwards. There was no writing evidencing the terms of the gift; but William J. Allen, a witness for the plaintiff, testified that the plaintiff, upon the marriage of his children, put in their possession a slave, “which was to be theirs upon the condition that they should have issue,” and he had often heard Nathan Halbert, in his life time, say that this was the way he held the slave in controversy. Nathan Halbert never had any children. Several witnesses testified that he always recognized the slave as the property of his father, and refused to sell him for that reason, and frequently complained that his father had not done right by him, in not giving him an absolute right to the slave.

At the close of the plaintiff's case, the court instructed the jury that he could not recover, holding, as a matter of law upon the evidence, that there was an absolute gift, and a remainder over, and that this remainder was void.

C. Jones, for appellant, in his brief, insisted that the court erred in taking the whole case from the jury.

M. Frissell, for respondent. The gift was absolute and the condition void. ( Betty v. Moore, 1 Dana, 235. Fearne on Remainders, 460, 463. Wilson v. Cockrill, 8 Mo. 3.)

LEONARD, Judge, delivered the opinion of the court.

In Wilson v. Cockrill, (8 Mo. Rep. 1,) and again in Vaughn v. Guy, (17 Mo. Rep. 429,) this court decided that, after a grant of a personal chattel to one, a limitation over to another, upon the death of the first taker, was void, and that the absolute property was in the first grantee. There are two grounds upon which these decisions may be placed; one, that the limitation over, being upon a dying without issue, which has been construed to mean an indefinite failure of issue--a want of descendants, at any time, sooner or later, whenever it should occur, and not a want of them at the death of the first taker, or at any other definite point of time--the effect of it, if applied to real property, would have been to create an estate tail by necessary implication; and, therefore, being here applied to personalty, carried the whole interest, according to the rule that terms, which, if applied to real property, would give an estate tail, pass the absolute interest in personal property, and left nothing in the grantor upon which the limitation over could take effect; ( Anderson v. Jackson, 16 Johns. 381, and cases there referred to;) and, second, that, although such future interests in personal chattels, if limited to spring up within a proper period of time, so as not to violate the rules against perpetuities, are valid at law, when created by will, as executory bequests, and good in equity as equitable estates through declarations of trust, yet they are not allowed at common law in the disposition of personal chattels by conveyances inter vivos. (Chitty's Black. 2 B. 398.) If the dying without issue meant an indefinite failure of issue, the limitation over was void, in a conveyance of real property, because the effect of a limitation over upon such an event was to create an estate tail, by necessary implication, in the first taker; and then the future interest that was to arise upon the regular expiration of the estate was void, as tending to a perpetuity; and in a conveyance of personal property, the limitation over was void, because the same words, instead of creating an estate tail, that could not be in such property, passed the absolute interest, leaving no reversion in the grantor out of which the future estate could take effect. But if it meant a definite failure of issue, as for instance, at the death of the first taker, the limitation over, although good as an executory use, in a conveyance of real property operating under the statute of uses, was void in a transfer inter vivos of a mere personal chattel, as an attempt to create in this manner a future interest at law in such property.

It may be observed here, that limitations of future interests in chattels, both real and personal, came originally out of the courts of equity, where they were first recognized as lawful limitations of property. Lord Hardwicke, in 1742, remarked, ( Beauclerk v. Dormer, 2 Atk. 312,) “the first case of an executory devise (of terms for years) was Mathew Manning, 8 Co. 95; afterwards came Lampet's case, 10 Co. 46, b, and several others, which were all on terms for years, and partook of the realty, but the judges had no notion of extending it to a personalty. Courts of equity have gone further still, and have admitted of the like limitations in personal as in chattels real;” and afterwards, in 1757, Lord Mansfield, ( Wright v. Cartwright, 1 Burr. 282,) arguing in favor of allowing the same limitations of terms for years by deed that were lawful by testamentary disposition, said: “When they came to be allowed by will, or by declaration of trust, the substantial reason was the same for allowing them by deed.” In the progress of the law, bequests of mere personal chattels have now become valid as legal dispositions of property, (10 Johns. Rep. 12;) and the remark of Lord Mansfield might now, perhaps, be repeated in favor of allowing future interests in personal chattels to be created by deed as well as by will, but the remark is not called for by the present case.

In the two cases decided in this court, to which we have referred, the grants were in writing, and the meaning of the terms used fixed by judicial interpretation, and there were express limitations over to third persons; but here, there is no writing, and no express limitation over to another, or express reservation to the grantor. Those decisions, therefore, do not settle this case; but in the case of Betty v. Moore, (1 Dana, 235,) there was no written grant, but an express reservation to the grantor, if the donee died without having children; and it was there held that the gift was absolute, passing the whole property, and the reservation void; and it was probably upon the authority of this decision, that this case was decided in the court below. What the terms of this grant were, we think, was a question for the jury, and not a matter of law for the court; but, assuming them to have been...