M'Donald v. Walton

• Decision Date: 31 May 1828
• Citation: 2 Mo. 48
• Parties: M'DONALD, ADM'R., v. WALTON.
• Court: Missouri Supreme Court

2 Mo. 48

M'DONALD, ADM'R.,

v.WALTON.

Supreme Court of Missouri.

May Term, 1828.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

TOMPKINS, J.

M'Donald sued Walton in an action of detinue for some slaves. At the March term of the year 1827, judgment was rendered for Walton in the Circuit Court. M'Donald appealed to this court, and at the May term of the same year, the judgment of the Circuit Court was reversed, and the cause sent back to the Circuit Court for further proceedings. At the November term of the Circuit Court for the same year, judgment being again given for Walton, M'Donald appealed to this court. The facts as they now appear in the bill of exceptions, are as follows, viz:--In the year 1805, Daniel Polk or Pogue married Rebecca Walton in the State of North Carolina; before and at the time of the marriage, Polk was possessed of certain slaves, mentioned in the bill of exceptions, and for which slaves and their descendants this action was brought. Shortly after their marriage, Polk and his wife removed from North Carolina to Kentucky, and settled on an island in the Ohio river, taking said slaves with them. In January, 1807 or 8, said Polk died intestate at his residence in Kentucky, and about the last of February or the first of March, next thereafter, his widow left Kentucky, and came to Upper Louisiana, now Missouri, bringing with her the said slaves, and one other, born in Kentucky, of the first mentioned. Polk had no children, and at the time of his death, no family living with him except his wife and slaves. In the month of April of the same year, the widow intermarried with one Absalom Chapman, a young man without property. Soon after their marriage, Chapman and his wife went to Kentucky on a visit, and after an absence of a few months, returned and settled at Point Labbadie, in St. Louis county, having said slaves in their possession. After being there something more than a year, they removed said slaves to the lower country to some place unknown, either in the Mississippi or Orleans territory. A few years afterwards, in the year 1815, Chapman and his wife returned to St. Louis county, bringing with them the said slaves and their increase, and remained in possession of them till 1817, when Chapman died, and a few months after, Rebecca, his wife died. The plaintiff proved, that on the 19th June, 1826, he obtained letters of administration on Polk's estate, in St. Louis county.

Chapman appointed the defendant, Walton, his executor. Walton proved the will and took on himself the execution thereof, as executor, and took possession of said slaves and their increase, and continued to hire them out, as executor, until the year 1823, when he settled his testator's estate, and continued his possession of said slaves, as guardian of the infant children of Chapman and said Rebecca; and in that character hired out said slaves from year to year, till September, 1824, when he delivered to William Melton, husband of his ward Narcissa, daughter of Chapman and wife, a part of said slaves as his portion of Chapman's estate; the defendant continued to hire out the remaining slaves till September, 1825, when he hired one of them to McDonald, the plaintiff, and two to one Waldo, neither of which have been returned to the defendant, and they are all three now in the possession of the plaintiff in this action, appellant here. The remaining part of said slaves are still under the defendant's control, and hired out by him. Chapman and wife, before they departed hence for the lower country, expressed much uneasiness lest these slaves should be set free under Polk's will, about which there was much talk. When Chapman and wife lived in Point Labbadie, there were but few families in the Point, the settlement being on the frontier. Polk had been heard to say, before he was married to Rebecca Walton, that he had no relations in America known to him; it was also in evidence, that said Rebecca, soon after Pogue's death, and before her removal from Kentucky, had been heard to say, “that she was much afraid that said slaves would be taken away from her, as Polk had, in his life-time, made some arrangements with a man at the Red Banks about keeping or taking care of said slaves after his death,” and gave this as a reason for her removal from Kentucky with said slaves. Some Kentucky statutes were read in evidence, which will be noticed hereafter; and no other evidence, material to be here noticed, was offered. The defendant prayed the court to instruct the jury: First. That if the jury find, from the evidence, that Polk died intestate in the State of Kentucky, in 1807 or 8, without any issue or other descendants, and without leaving any father, mother, brother or sister, or their, or either of their descendants, and without leaving any paternal or maternal kindred capable of inheriting, the whole of said slaves which belonged to said Pogue, and which he had with him in Kentucky at the time of his death, descended to Rebecca his wife, as his heir at law. Second. If the jury find, from the evidence, that Rebecca, widow of Pogue, was entitled to the slaves of which Pogue died possessed, and that said Rebecca and those claiming under her, have been in the uninterrupted exclusive possession of said slaves, under a claim of title adverse to all other persons, for a period of fifteen years consecutively, they ought to find for the defendant. To which instructions the plaintiff objected. The court gave them as requested. The plaintiff then prayed many instructions, three of which, only, will be noticed, the rest being substantially contained in those three: First. If the jury find, from the evidence, that Pogue died intestate in the State of Kentucky, in the year 1807 or 8, without any issue or other descendants, and without leaving any father, mother, brother, sister, or their or either of their descendants, and without leaving any paternal or maternal kindred capable of inheriting, yet the wife of said Pogue, and those claiming under her as her descendants, are not heirs at law of said Pogue, and cannot take, as heirs at law, any property, real or personal, left by said Pogue at the time of his death. Second. That no length of possession of Pogue's negroes, and their descendants since his death, by Pogue's widow and those claiming under her, before administration on said Pogue's estate, can confer a right of property in said negroes in said widow and her representatives, and those who claimed under her. Third. That notwithstanding the jury may find, that Mrs. Pogue, widow of Daniel Pogue, and those claiming under her, are the heirs at law, under the laws of Kentucky, still this will not operate as a bar to the plaintiff's right to recover in this action. These instructions were refused. The points growing out of these instructions, and which only it seems necessary to decide, are: First. Whether Mrs. Pogue, widow of the intestate, afterwards married to Chapman, could, by the laws of Kentucky, take the negroes by descent from her...