McLeod v. Richard S. Bd.

• Decision Date: 30 April 1867
• Citation: 30 Tex. 238
• Parties: ROBERT L. MCLEOD ET UX. v. RICHARD S. BOARD.
• Court: Texas Supreme Court

30 Tex. 238

ROBERT L. MCLEOD ET UX.

v.RICHARD S. BOARD.

Supreme Court of Texas.

April, 1867.

Where property was conveyed in trust by a marriage contract, and the heir of the wife, who claimed the remainder, sued, and averred that the trustee was dead, and his heirs did not reside in the state, although it was urged that the trustee was a necessary party, and the petition was dismissed upon a general demurrer, the court declined to consider the question of parties.

See the statement of the case and the opinion for a marriage settlement which might be within the rule in Shelley's case, and yet the question was whether the husband did not exclude himself from any right as heir.

Equity will always carry the intention of a marriage settlement into effect, when that intention is explicit and certain.

Where the averment was, that the intention of the settlement was to exclude the husband from any interest in the estate, not only during his life, but after his death, and the deed seemed to bear out that intention, it was error to sustain a general demurrer to the petition of the heir.

As to the question of comity in regard to descents and distributions, where there has been a marriage settlement, the lex loci contractus, by positive ante-nuptial agreement, may be made the rule for determining the parties who shall take as heirs or distributees, on the failure of the wife to dispose of the property by will or otherwise, as well as to govern the construction of the contract in all other respects, and especially in respect to its control in the partition and disposal of the property acquired after a change of the domicile from the state of the marriage. Pas. Dig. arts. 4632, 4639, notes 1040, 1046.

Where the husband has, by marriage contract in South Carolina, excluded himself from all interest in the property of his intended wife, both before and after marriage, the averment of her sister, that she was the only heir, was the statement of a good cause of action, although she stated that she was heir according to the laws of South Carolina.

APPEAL from Harrison. The case was tried before Hon. CHARLES A. FRAZER, one of the district judges.

The suit was to recover two slaves and the increase of one of them. The case turned entirely upon the sufficiency of the petition upon demurrer.

The facts of the case embodied in the petition were as follows. On the 13th December, 1835, in the state of South Carolina, Mary W. Michan and Benjamin S. Mitchell were intending to marry. She owned two negroes, Simon and Bina; and in consideration of said proposed marriage the parties made a marriage settlement, by the terms of which the said Mary “granted, bargained, sold, and delivered to Mina McCoy, who was a party to the settlement, the said negroes, to have and to hold to him, the said Mina McCoy, his heirs, executors, and administrators, the said slaves Simon and Bina, with the future issue and increase forever, in trust and for the sole and separate use of the said Mary for and during her natural life, not subject to the debts, incumbrances, charges, demands, power, or control of the said Benjamin, or any future husband, to pay over to the said Mary the hire aforesaid of the labor of said slaves, and their future issue and increase, to and for her sole and separate use; or, at the option and choice of her, the said Mary, to permit her, notwithstanding her coverture, to hold and possess, use and enjoy, said slaves, with their issue and increase, without the same, or any part thereof, or their hire, or the profits of their labor, being in any way subject to the debts, liabilities, or control of the said Benjamin, or any future husband that she might have; and that, if the said Mary should depart this life without leaving issue alive at the time of her death, and without disposing of her separate estate by last will and testament, then and in that case the said Mina McCoy should hold said slaves, with their issue and increase, in trust, to convey the same to her, the said Mary's, heirs at law, to be divided according to the statutes of the state of South Carolina.” The marriage took place immediately. In January, 1840, the parties removed to Texas, and on the 1st day of June, 1841, Mrs. Mitchell died in Texas, without children or their descendants, without father or mother, brother or sister, except her half sister, the plaintiff Harriet, and without disposing of her separate estate by will, and was survived by her husband, the said Benjamin. She elected upon her marriage to take possession of the slaves, and had the possession and use of them until her death.

The trustee is dead, and his heirs, executors, and administrators live beyond the limits of the state of Texas, and are prayed to be made parties upon their coming into the jurisdiction of the court. The prayer is to recover the slaves and damages for their detention.

To this state of the case the defendant interposed a demurrer, which was sustained by the court below, with leave to the plaintiff to amend, which was declined, and judgment final rendered for the defendant. The correctness of this ruling is the only matter for discussion.

A. H. Wilson, for appellant. I. The demurrer was sustained, under a misapprehension of the rule in Shelley's case, which does not apply to contracts of this kind.

II. The marital rights of the husband attach to all the personal property that his wife has in her possession at the time of their marriage, and it becomes absolutely his. He may, however, entirely exclude those rights by an ante-n uptial contract, executed by himself and wife, not only during her life, but forever afterwards. And whenever the question comes up, exclusion or no exclusion, the intention is the first matter of inquiry, and if it can be ascertained by any of the known rules of construction, and is consistent with the principles and the policy of the law, it will be recognized and enforced as the law of the contract, by which their respective rights are to be governed. If such a contract be valid, and the marital rights excluded, the question may then very properly arise whether the husband, after the death of his wife, can be let in to take the property, or any part of it, as personæ designatœ in the instrument, under the intention therein manifested. These views are fully supported by the following cases and authorities: 2 Kent, 165; 1 Rop. Prop. 326, 327, 328, 329; Bailey v. Wright, 18 Ves. 49; Watt v. Watt, 3 Ves. 244; Holmes v. Liptrot, 8 Ga. 279; Roberts v. Digwell, 1 Atk. 607; Smoot and Nicholson v. Lecatt, 1 Stew. 590;Williams v. Claiborne et al. 7 Smedes & M. 488; same case, 1 Smedes & M. Ch. 355; Brown's Administrators v. Brown's Administrators, 6 Humph. 127;Hamrico v. Laird, 10 Yerg. 222;Stilley v. Folger, 14 Ohio, 659;Neves v. Scott, 9 How. 196, 210;Robinson's Administrator v. Brock, 1 Hen. & M. 213; 2 Story, Eq. 1379. [Mr. Wilson quoted many of these authorities at great length, and, upon the suggestion of Chief Justice WHEELER, the case was reargued upon the question of the intention of the parties.]

Hill & Hill, for appellees. I. It will be observed that this is simply an action at law to recover the slaves, and damages for their detention. The plaintiffs therefore must establish a valid legal title to the slaves. If the marriage agreement had not been made, the negroes would, by the fact of marriage, have become the absolute property of the husband, it being conceded that the common law was in force in South Carolina at the date of the marriage. The agreement, being in derogation of the common law, must be strictly construed. The effect of the agreement was to vest in the trustee the legal title. If it did not have this effect, the legal title remained in Mary Michan, and upon the marriage vested in her husband. If it did have this effect, the legal title passed into the trustee, incumbered only with the trusts specifically declared in the articles of settlement; and in him, or, if he is...