Loftus v. Penn

• Decision Date: 30 April 1852
• Citation: 31 Tenn. 445
• Parties: LOFTUS v. PENN.
• Court: Tennessee Supreme Court

31 Tenn. 445

LOFTUS

v.PENN.

Supreme Court of Tennessee.

April Term, 1852.

At the October term, 1850, of the county court of Fayette county, Edward M. Penn was appointed administrator of the estate of Ann. E. Loftus. At a subsequent term of the court R. W. Loftus presented his petition to the court, praying the revocation of the letters of administration granted to Penn, and insisting upon his right, as husband of the said Ann E., to administer upon her estate. At the November term, 1850, the court refused to revoke the letters of administration to Penn, and permit Loftus to administer; whereupon he appealed to the circuit court. At the October term, 1851, of the circuit court, Humphreys, judge, presiding, the judgment of the county court was affirmed; and Loftus appealed in error.

Searcy and Parham, for Loftus, cited 4 Yerg. 447; Methodist Episcopal Church v. Jacques, 3 Johns.; 2 Hill. Abr., ch. 29, sec. 38; 6 Humph. 129;7 Johns. 246; 18 Ves. 49; 3 Humph. 628; 1 Phill. 1; Story's Eq., sec. 1394, and note; Roper on Leg. 120; 2 Williams on Ex. 969, 981, 982.

Rivers, Harris, and Wright & Turley, for Penn, cited Hamrico v. Laird, 10 Yerg. 222;6 Gill & J. 349;6 How. 70; 3 Ves. Jr. 146, 244, 487; 14 Id. 307, 312, 380, 381; 6 Cond. Eng. Ch. 26; 7 Id. 124;9 Id. 163.

Green, J., delivered the opinion of the court.

This is an application to the county court of Fayette county, for administration on the estate of the plaintiff's deceased wife, and for the removal of the defendant, her brother, who has heretofore been appointed administrator.

Before the marriage of the plaintiff and the intestate a contract was entered into, whereby certain property was conveyed to a trustee, for the separate use of the intestate, with a power of appointment, etc.; and she having died without appointment and without issue the question is whether the plaintiff, as husband, or the next of kin of the wife, shall take the property. If the former, then he is entitled to the administration; if the latter, then the defendant is entitled to the administration.

To determine this question we must examine the contract of the parties, and ascertain what was their intention in reference to the ultimate disposition of the property. For if, by the contract, the husband parted with all claim to the property, and excluded his marital right beyond the period of coverture, the law will exclude him, and the property will go to the next of kin. But if on the other hand, he is not excluded beyond the period of coverture, by the plain meaning of the contract, his marital right, although suspended during the coverture, attached immediately upon the death of his wife, and he is entitled to the administration, and to the property, jure mariti.

In order to determine the meaning of the parties, it is necessary to look at the entire instrument. It is in these words:

“This indenture of three parts, made this 26th day of May, in the year of our Lord one thousand eight hundred and forty-five, by and between Ralph W. Loftus, of the county of Nelson, and state of Virginia, of the first part, and Ann E. Hargrove (widow and ??elict of John J. Hargrove, deceased), of the same county and state, of the second part, and Nathan Loftus, of the same county and state, of the third part, witnesseth: That whereas a marriage is intended shortly to be had and solemnized by and between the said Ralph W. Loftus and Ann E. Hargrove; and, whereas the said Ann E. Hargrove is possessed of a small personal estate, consisting of the following slaves--a yellow woman named Lucy, and her four children, Robert, Chester, Betty, and Lettenik, Armstead, Alexander, and Fanny--and one sorrel horse; and whereas, upon the contract of said marriage, it hath been agreed by the said Ralph W. Loftus and Ann E. Hargrove that if the same shall take effect, then, notwithstanding said marriage, he, the said Ralph W. Loftus, his executors, administrators, or assigns, shall not and will not intermeddle therewith, or have any right, title, or interest, either in law or equity, to the said slaves and other property herein before described, or to the hires, income, increase, or profits of all or any portion thereof, but the same shall remain, continue, and be to the said Ann E. Hargrove, or to such uses and persons as she shall think fit and appoint. It being the intention of the said Ralph W. Loftus and Ann E. Hargrove to assign and secure to her separate use and disposal the personal property aforesaid, and thereby make a sure and certain provision for her support and maintenance, and for those persons whom she may wish to assist, to be at all times within her own direction and control. Now this indenture witnesseth that the said Ann E. Hargrove, in consideration of the said intended marriage, and of the premises, and of five dollars to her in hand paid by the said Nathan Loftus, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and for divers other considerations her thereunto moving, and by and with the consent and approbation of the said Ralph W. Loftus, testified by his signing and sealing these presents, hath granted, bargained, sold, assigned, transferred, and set over, and doth by these presents grant, bargain, sell, assign, transfer, and set over, unto the said Nathan Loftus, his executors, administrators, and assigns, all the said slaves, and other property heretofore described, consisting of a yellow woman named Lucy, and her four children, Robert, Chester, Betty, and Lettenik, Armstead, Alexander, and Fanny, and one sorrel horse, together with the future increase of the female slaves...