McCune v. McCune

• Decision Date: 31 October 1859
• Citation: 29 Mo. 117
• Parties: MCCUNE, Respondent, v. MCCUNE, Appellant.
• Court: Missouri Supreme Court

29 Mo. 117

MCCUNE, Respondent,

v.MCCUNE, Appellant.

Supreme Court of Missouri.

October Term, 1859.

1. When a person parts with his property, he may attach such lawful conditions to the transfer as he thinks proper.

2. Slaves were devised by a husband to his widow for life, with remainder to their children at her death. The persons appointed by the will to make the division among the heirs, with the consent of the widow made a division of the slaves among the heirs and widow, she reserving the right to take back the slaves at any time she should choose to do so. This condition was not communicated to the heirs. Held, that the acts and declarations of the heirs were inadmissible in evidence against the widow to show that she had consented to an unconditional surrender of the slaves allotted and an abandonment of her life estate, unless it were shown that she had knowledge of, or assented to, or acquiesced in, such acts and declarations, in some form or other.

Appeal from Ralls Circuit Court.

It is deemed unnecessary to set forth the facts more fully than they appear in the opinion of the court.

Henderson, for appellant.

I. The mode of appraising the slaves, the valuation at their full worth, the payment of money between the heirs to make their slaves equal, the agreement of the heirs to support an aged slave whose support devolved on the plaintiff in consideration of the division, the fact that notes previously given by the heirs to the executor were adjusted in this transaction, their rights made equal in every thing to that date, and all obligation over to the estate cancelled at the time, with the knowledge and consent of plaintiff, and that one of the parties receiving slaves on that day and under the same distribution and division was permitted to take them to California without objection on her part, and under the belief of the other heirs that the division was final, conclusive and operative on all the parties, are facts throwing light upon the transaction, and the court should not have excluded them. J. S. McCune's letter should have been admitted. The instructions asked and overruled should have been given. The instruction given for plaintiff was erroneous, in that it declared it was unnecessary to communicate the conditions of the possession to the defendant.

Broadhead, for respondent.

EWING, Judge, delivered the opinion of the court.

This was an action by the widow of Samuel McCune, deceased, to recover the possession of three slaves, which, with all the other property of the testator, were given by his will to respondent during her life or widowhood, with power to dispose of all or any of the slaves should they become disobedient; and at her death said property was to be divided among the three children, Henry, Joseph and Rebecca. William L. McCune, John S. McCune and Thomas Cleaver were appointed by the will to make division of the property. In 1852 and after testator's death, the three last named persons met at the house of respondent and made division of a portion of the slaves among the heirs. The slaves in controversy were assigned to appellant and his wife Rebecca, and he took possession of them.

The respondent insists that the slaves were merely loaned to appellant, and that the right was expressly reserved to take them back at any time. The appellant alleges that the partition was intended as a surrender and abandonment of her life estate, and that no conditions were annexed. On the trial respondent read the will, introduced some evidence as to the value of the slaves and their services, and closed. Appellant then proved the division of the slaves, as already stated, at the house of the respondent; that it was made as equal as possible among the heirs; and that those allotted to appellant shortly thereafter went into his possession, three or four being assigned at the same time to the respondent. It was also proved by John S. McCune, the executor of the will, that the division was made at his instance; that, being desirous of getting the estate off his hands, the legatees being of age, he proposed to respondent that she should reserve such of the slaves as she wished, and consent to a division of the remainder among the heirs; that she at first objected, saying that it was the request of the testator that the negroes be kept together during her life, and that she had promised him to do so, but finally consented, reserving the right to take them back at any time she chose to do so; that among the slaves selected by the widow was an old woman, and upon witness advising her to take a younger one, she declined, saying she could take any of them back whenever she desired. After this the division was made as stated; the witness took receipts as executor from the parties for the negroes. The heirs were not informed by him of any conditions, nor of the conversation he had with the respondent. He declined communicating the conditions to appellant and the other heirs in order to avoid...