Kemp v. Holland

• Decision Date: 31 July 1846
• Citation: 10 Mo. 255
• Parties: KEMP v. HOLLAND, ADM'R OF SMITH, DEC'D.
• Court: Missouri Supreme Court

10 Mo. 255

KEMP

v.HOLLAND, ADM'R OF SMITH, DEC'D.

Supreme Court of Missouri.

July Term, 1846.

APPEAL FROM CALLAWAY CIRCUIT COURT.

TODD & ANSELL, for Appellant.

REED & HARDIN, for Appellee.

1st. That the slave did not come to Smith in right of the wife. On the death of her father, Smith acquired a right to her distributive share of the personal estate (slaves being such by the laws of Virginia), which authorized him to sell, assign, or dispose of it as he pleased. Wallace v. Taliafero, 2 Call, 447, 491. At the sale, Smith purchased the slave Sophia. He had a right to bid or not, at his election; and consequently; stands precisely in the condition of any other purchaser. His purchases at this sale amounted to more than his wife's portion in the estate, and the additional sum paid out of his other funds. But as this slave was by virtue of the marriage his own absolute estate, a resulting trust in favor of the wife, cannot be contended for.

2nd. But if said slave had come to Smith in right of his wife, she lost the right by omitting to make her election in due time. Letters of administration were granted on Smith's estate, in October, 1840, and her deed of election presented to the court in November, 1843. By the 6th section of the Dower act of 1835, a widow, where there is no child of the intestate, is bound to make her election of dower within six months of the date of administration. Is it not equally important, and is she not bound, where there are children, to make her election, in lieu of dower, within the same time? But where there is a child, or children, by former marriage, it is by election only that the widow acquires a right to a separate part of the estate, until she make her election. She is entitled to only a child's part after payment of debts; and there being no separate right in the estate to guard, the administrator is at liberty to sell any part, taking care to act for the best interest of the distributees. Hence we see a reason why the widow should make her election in due time. The slave in question was sold by an order made twelve months after administration, by the Warren County Court. At this time, appellant's wife had no separate interest in this slave, for she had not made her election. Hamilton v. O'Neil, 9 Mo. R. 11. The court might well, therefore, order the slave to be sold to pay debts. It would be a strong game, indeed, if a widow could remain silent until the administrator had paid the intestate's debts out of that portion which she could not reach by election, and then come forward and claim all the estate which came by her to the exclusion of her late husband's children. The fact that she claimed and received the $150, which the administration law gives to the widow, shows that this pretended election is an afterthought.

3rd. But the slave, even if appellant's wife had a right, was subject to the payment of debts, Rev. Code, 1835, p. 228, §§ 3, 4, and the administrator having sold for that purpose, neither he, the widow, nor purchaser, can set the sale aside, whether such sale was necessary or not. She might, if she could show fraud and collusion between the administrator and purchaser; but otherwise her remedy would be against the administrator. See 1 Story, 406; 2 Hen. & Mun. 69, Sale v. Roy; 2 P. Williams, 148; 1 Atkyns, 462, and authorities cited in note 1; 2 Bibb, 189, Henning v. Conner; 3 J. J. Marshall, 161, 162, Lareu's Heirs v. Lareu's Ex'r.; 3 J. J. Marshall, 505, Ward v. Lewis; Newland on Contracts, 512, 514; 2 Williams on Executors, 670.

SCOTT, J.

John Kemp, in April, 1844, filed his bill for an injunction and relief in the Callaway Circuit Court, in which it is set forth that he intermarried with Elizabeth Smith, widow of Samuel Smith, deceased, who died in Warren county, in the year 1840. That Samuel Smith died leaving children by a former wife, and without children by his last wife. That his wife, the said Elizabeth Smith, prior to her marriage with the said Samuel Smith, had received as a distributive share from the estate of her father, a slave named Sophia, who since has had two children. That the said Samuel Smith died in solvent circumstances, leaving land, negroes, personal estate, money, and debts due him, and but little embarrassed--his personal estate and debts due him fully competent to pay his debts. That the defendant, Thomas Holland, in October, 1840, took out letters of administration on the estate of said S. Smith, in Warren county. That shortly after he had taken upon himself the burden of administration, and before any disposition was made of the slaves, his wife, the said Elizabeth Smith, gave notice to the said administrator, that she should claim as her dower, the slave Sophia and her increase, which had come to the said Samuel Smith in right of his wire, Elizabeth Smith. Hearing that Holland was about to dispose of the said slave, Sophia, for some purpose relative to the administration, Kemp attended the sale, and his wife with his consent gave Holland notice of her claim before the sale, and of her desire to have the said slave as a part of her dower, but notwithstanding the slave was sold, and he, Kemp, became the purchaser for five hundred and six dollars, upon a credit of twelve months, and gave his note with security for the purchase-money. That when the note fell due, suit was brought thereon, and judgment obtained. That Kemp and wife, by deed, executed on the 6th November, 1843, released all right to the estate of Samuel Smith, other than the slave aforesaid, and her increase, and elected said slave and children as the dower of the said Elizabeth in the estate of her deceased husband, subject to the payment of debts, which deed was filed in the County Court of Warren county. That at the time of the sale of the said slave, and at...