Nimmo v. Davis

• Decision Date: 01 January 1851
• Citation: 7 Tex. 26
• Parties: NIMMO AND OTHERS v. LEE R. DAVIS.
• Court: Texas Supreme Court

7 Tex. 26

NIMMO AND OTHERS

v.LEE R. DAVIS.

Supreme Court of Texas.

1851.

Where it is proved or admitted that the common law was in force in another State where the rights in controversy accrued, the court will take notice of the principles of the common law, including equity, applicable to the case.

At common law a bequest of personal property to trustees for a married woman, the profits to be applied to her benefit, did not impart to her an interest beyond the control and dominion of her husband. (Note 7.)

All contingent and executory interests are assignable in equity, and will be enforced if made for a valuable consideration; and all contingent estates of inheritance, as well as springing and executory uses and possibilities coupled with an interest, where the person to take is certain, are transmissible by descent and devisable and assignable. It is, however, incumbent on the party dealing with heirs, reversioners, or remaindermen to show that the dealing is fair and for an adequate consideration.

Appeal from Milam. The appellants brought suit against the appellees, on the 1st day of May, 1845, to recover certain negroes claimed by the former, in right of Rhoda, wife of James Nimmo, and her children, Elizabeth Fuller and others, plaintiffs.

The plaintiffs claimed the property as legatees under the will of their ancestor, Samuel Hamner, father of Rhoda Nimmo, made in the State of Virginia, in the year 1817. The clause of the will under which they claimed was as follows:

“I convey to the care of William Hamner, Morris Hamner, and Samuel Hamner, as trustees for my daughter, Rhoda Nimmo, and her children, during her, the said Rhoda Nimmo's, natural life, the following negroes,” (naming them;) “and my will and desire is, that the profits arising from the aforesaid property, either by hiring or otherwise, shall be applied to the benefit of the said Rhoda Nimmo and her children; and after the decease of my daughter Rhoda, my desire is, that what I have left her upon trust shall be equally divided between the heirs of her body, share and share alike, to them and their heirs forever. It is also my desire, should James Nimmo outlive his wife Rhoda, that the trustees should furnish him, said James Nimmo, with a reasonable support, should he be in need of it, out of my estate put in trust.”

At the date of the will all the children of James and Rhoda Nimmo whose rights were brought in question in this suit were in being. The testator died shortly after making the will, in the same year. The trustees named in the will also died previous to the year 1826. The negroes appear to have been in possession of Mr. and Mrs. Nimmo at and after the date of the will and the death of the testator. In 1833, James and Rhoda Nimmo had removed from Virginia, and were residing in Alabama. In that year the defendant, Lee R. Davis, married their daughter, Mary Jane, who was the youngest of the children. In the same year, in the State of Alabama, the property bequeathed was divided and distributed by the parties in interest among themselves, they all being of lawful age, and present, and consenting to the division, except the wife of the defendant, who was a minor, and absent, and was represented by her husband acting in her behalf.

The plaintiff, Elizabeth Fuller, then Elizabeth Davis, wife of Hiram Davis, (since deceased,) was present with her husband. The subject of the division was discussed, and its terms agreed upon by all the parties present; and its object was understood to be, “to pay the debts of the old people, (James and Rhoda Nimmo,) who were bad managers, and to provide for their future maintenance and support during their natural lives, and to place the property in the hands of the children, to whom it was given in the will.” It was agreed that each child should pay a proportionate part of the debts of their parents, James and Rhoda. The negroes, consisting of a family, were divided into lots as nearly equal as possible, and delivered to the children, except one negro girl, which was retained by Mrs. Nimmo. The slaves of the defendant Davis, received on account of his wife, exceeding in value the slaves received by the other children about $175, he paid that amount to them, which, it was estimated, made all their shares equal. There was at the same time property supposed to be sufficient for the support and maintenance of the parents, (James and Rhoda Nimmo,) but of little value, except the negro girl assigned to the said Rhoda, set apart to them. The parents and children all expressed themselves satisfied at the time with the division of the property. The children received into possession, and used and disposed of as their own, the respective portions set apart to each.

At the time of making the distribution the parties had a copy of the will before them. The parents lived with two of their sons in Alabama until 1835, when they removed to Texas, after which they lived with their son-in-law, Hiram E. Davis, until their death, which occurred after the commencement of this suit. The wife of the defendant, Lee R. Davis, died in 1836, leaving no issue.

It was admitted that the common law was the rule of decision in Alabama when the division was made.

The plaintiff's counsel asked the court to instruct the jury, in effect, that no legal distribution of the property could take place until after the death of Rhoda Nimmo. This instruction the court refused, but instructed the jury, in substance, that if the division of the property was fairly made, and was just, and a suitable portion of the estate for their support was allotted to Rhoda Nimmo and her husband, and all the parties in interest were present and consenting, and took into possession their respective shares, the plaintiffs could not recover; but if any unfair advantage was taken of any of the parties, or if ample provision had not been made in the settlement for the support of Mrs. Nimmo and her husband during their lives, the plaintiffs are entitled to recover; that the consent of the husbands of the married daughters was, by the common law in force in Alabama, sufficient to bind them.

The jury returned a verdict for the defendant; on which the court gave judgment, and the plaintiffs appealed.

A. M. Lewis, for appellants.

H. J. Jewett and J. Sayles, for appellee.

LIPSCOMB, J., did not sit in this case.

WHEELER, J.

The principal inquiry in this case is as to the legality and validity of the distribution made of the property in the State of Alabama. This will depend upon the power of the parties to dispose of their respective interests in the estate, and the intrinsic fairness of the transaction.

The intervention of trustees did not render the estate or interest vested in the plaintiffs, as beneficiaries, inalienable. In general, the cestui que trust or beneficiary in a trust estate may convey his interest at pleasure, as if he were the legal owner. (4 Kent Comm., 304.)

The terms employed in the will to describe the estate bequeathed to Mrs. Nimmo and her children are, that “the profits arising from the aforesaid property, either by hiring or otherwise, shall be applied to the benefit of the said Rhoda Nimmo and her children,” to be enjoyed by the said Rhoda during her natural life, and after her death to be equally divided among the heirs of her body, her husband to be provided for in a certain event.

The first question which naturally presents itself is, did the will create a separate estate in Mrs. Nimmo? Does the conveyance of an estate to trustees for the benefit of a married woman and the heirs of her body confer upon her an estate separate from her husband?

As the common law was the rule of decision in Alabama, the questions arising in the case must be determined by the principles administered in its courts of law and equity.

“Under what circumstances,” says Story, “property given, secured, or...