Pemberton v. Pemberton
| Decision Date | 31 January 1856 |
| Parties | PEMBERTON et al., Respondents, v. PEMBERTON, Appellant. |
| Court | Missouri Supreme Court |
1. A parol gift of a slave to one for life, remainder to her children, then living, followed by the possession of the donee for life, is valid.
Appeal from Calloway Circuit Court.
The case is stated in the opinion of the court.
J. F. Jones, for appellant; that a remainder in personal property could not be limited by parol; cited 1 Black. Comm., 398, and note 11; 1 P. W'ms., 290; 2 Kent's Comm., p. 352, and notes; 13 Conn. Rep., 42; Cro. Jac., 459; 1 Bailey's (S. C.) Rep., 100; 1 Dana, 237; 3 Dev. (N. C.) Rep., 263; 10 Johns. Rep., 11; 11 Wend., 259; 4 Kent's Comm., 264; Fearne on Remainders, 460, 461, 463, 464, and notes; 2 Vesey, Sr., 171; Pollexfen, 29; 6 Ves., Jr., 440; 11 Ves., Jr., 257; 2 Ves. and Beames, 63; 19 Ves., Jr., 73; 1 Merivale, 20; Ib. 271; 2 Roper on Legacies, (2d ed.,) 393; 1 Ves., Sr., 133, 134.
Thomas Ansell, for respondent, cited 2 Hall, 543; 2 Strob. Eq., 243; 3 Murph., 493; 3 Mon., 276; 3 Bibb, 40; 2 Kelly, (Geo.,) 207; 2 Bouvier's Inst., 294-5; R. C., 1845, p. 588.
Nehemiah Hundley gave to his daughter Susan Pemberton, then the wife of Edmund Pemberton, and the mother of the plaintiffs, in January, 1842, a certain negro woman named Abigail, and her increase. The words of the old gentleman, for it was a verbal gift, are, “I then gave Susy Pemberton, my daughter, Abigail and her increase, for life, and at her death, for her and her increase to be equally divided among her children.” “I sent Abigail the next morning to Susy Pemberton.” Susan Pemberton, the mother of the plaintiffs, died in the year 1846, and her husband, Edmund, died in October, 1853.
Edmund Pemberton, after the death of his wife Susan, married again, and the defendant in this action is his widow. This suit is brought to recover a negro boy named Lewis, a child of the said negro woman Abigail, in the possession of the defendant, and claimed by her under the will of said Edmund Pemberton.
The question involves the validity of this disposition of the negro woman Abigail and her increase. Is such a disposition of a slave, without writing, good, in favor of the children after the death of the mother? The circuit court held that it was, and the defendant brings the case here by writ of error.
The statute of 1835, concerning gifts of slaves, is as follows:
From this statute, it is obvious that a parol gift of a slave accompanied by possession, like the gift of any other kind of personal property accompanied with possession, is good and valid. Such a gift needed no writing, neither deed nor will, to be a valid act, passing title from donor and vesting title in donee; all that is necessary in such gifts, made bona fide, is the possession of the gift by the donee. So far then as respects the gift of Abigail, the negro woman, by Mr. Hundley to Mrs. Susan Pemberton, his daughter, in this case, it is beyond controversy good and valid; for possession immediately accompanied the gift and remained with the donee.
Was it in the power of the donor to make this gift to his daughter for life, and then to become the property of her children? The children in this case were alive at the time the donation was made to their mother for life, and to them after her death. This donation gave to the mother a life estate, and a vested remainder to her children. The delivery of the possession to the mother, the tenant for life, was a delivery, pro hac vice, to her children.
The question arising in this case has been virtually settled by this court, in the case of Halbert v. Halbert and others, decided at July term, 1855, (see 21 Mo. 277.) There a father gave to his son a slave, upon the condition, that if the son died without leaving issue the slave should revert to the father--a parol gift. The circuit court decided, in an action brought by the father for the slave, after the death of the son without leaving any child living, that the gift to the son, accompanied by the possession, conveyed the absolute property in the slave to the son, and that the plaintiff could not recover. This court reversed that decision and remanded the case; remarking, that one question of inquiry before the jury was, whether the transaction was a gift; and if it was a gift, whether it was absolute or qualified; and if qualified, what was the qualification annexed to it; was it a condition that the slave should be the son's, if he had children born to him? or was it a provision to transmit the slave to the son's descendants, as long as there should be any descendants; and to secure a return of the slave to the giver upon a failure of descendants, whenever that event should occur? We had actually remarked, that if it were the former, it would be a lawful purpose and must prevail; if the latter were the intention of the father, the law will not carry it into execution, but makes the grant take effect as an absolute immediate gift of the whole property to the son.
In the case of Keene and West v. Macey, (3 Bibb, 30,) the court of appeals of Kentucky held, that when A. gives slaves to W. for life, with remainder to the children of W., the remainder was good. In this case, it appears that Cornelius Duvall executed a bill of sale, disposing of certain negroes, of which he was the rightful owner, to his daughter, Esther West, during her natural life, and after her decease to be equally divided between such of her children as might be then living. Esther West died leaving Vandever West, and the wife of Keene, two of her children then living. West and Keene being possessed of part of the negroes, Macey, claiming by purchase from Rezin West, the husband of Esther, brought an action of detinue against them for the negroes in their possession. Non detinet was pleaded, and issue joined thereon. On motion of Macey, the circuit court instructed the jury, that the remainder over of the slaves to the children of Esther West was void; that the sole and absolute property in the negroes passed by the bill of sale to Esther West, and that by operation of law the right...
To continue reading
Request your trial