Pool v. Morris

• Decision Date: 31 August 1859
• Citation: 29 Ga. 374
• Parties: Wiley Pool and Wife, plaintiffs in error. vs. Richard Morris et al., defendants in error.
• Court: Georgia Supreme Court

29 Ga. 374

Wiley Pool and Wife, plaintiffs in error. vs. Richard Morris et al., defendants in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1859.

In Equity, in Henry Superior Court. Tried before Judge Cabaniss, April Term, 1859.

This was a bill filed by Wiley Pool and his wife, Elizabeth, against Richard Morris and Absalom R. Allen, seeking the partition of certain negroes and to set up Mrs. Pool's equity in the share or interest coming to complainants.

The facts of the case are about as follows: In 1814 Absalom Ramey and Daniel Ramey, of the county of Clark, executed their respective deeds of gift, conveying to Nancy Allen certain slaves for her life, and at her death remainder to her three children, Absalom R. Allen, Naomi Allen and Elizabeth Allen, and to any other children she might have. Naomi intermarried with Richard Morris, one of the defendants, and Elizabeth intermarried with Wiley Pool, the complainant. Nancy Allen never had any other children, and she and her husband, James Allen, retained the use and possession of the negroes and their increase till 1828, when the remaindermen all being of age, and Naomi and Elizabeth being married as aforesaid, said Nancy and her husband relinquished and surrendered their life estate in said negroes to Richard Morris, Wiley Pool and Absalom R. Allen, who had a division thereof, and each took possession of the share allotted or assigned to him, and entered into bonds, conditioned to contribute and pay yearly a sum sufficient to maintain and support the said Nancy during her life. Upon this division Morris received four negroes, Pool three and Absalom R. Allen two, and the difference in the value of these lots was equalized by the payment of money from one to the other. James Allen died about 1844, and Nancy Allen, the tenant for life, died in 1857. And this bill was filed by Pool and wife, alleging that the division made in 1828 was temporary and partial, and that it was the agreement and understanding of the parties that at the death of the tenant for life the said negroes and their increase in the hands of the respective remaindermen were to be partitioned and a final and equal division then made. That said negroes and their increase now amounted to twenty-four, of which number Richard Morris had eighteen. The bill further alleged that Elizabeth Pool had nine children, and prayed that her share or interest of said negroes be settled on her and her children.

The defendant, Morris, answered the bill, and admitted the facts as therein stated, in relation to the deeds of gift from the Rameys; and admitted that Nancy Allen and her husband relinquished their life estate in said negroes, and that therewas a division thereof amongst the remaindermen in 1828, but denied that such division was temporary, but, on the contrary, avers that the same was final, and that each party received the share thus allotted and assigned absolutely and unconditionally, and in fee simple, and took possession of the same. That he has held possession of the negroes set apart to him upon said division, and their increase, ever since, or has held, claimed and treated them as his own absolutely; and he denies that complainants have any right, title or claim in or to the same or any part thereof.

Defendant Morris further pleaded the statute of limitation and lapse of time.

Upon the trial defendants, amongst other things, offered in evidence the bonds executed by Morris, Pool and Absalom R. Allen, conditioned to maintain and support Nancy Allen "during her life, as stated in the bill. Complainants objected to their introduction; the objection was overruled, and the bonds were admitted as part of the res gestæ at the division of the negroes, and complainants excepted.

Defendants next proposed to read the depositions of a number of witnesses, and to examine others, as to the sayings and declarations of James and Nancy Allen in relation to their relinquishment of their life estate in said negroes. Complainants objected to said declarations. The court overruled the objection and admitted the evidence, and complainants excepted.

Defendants offered in evidence a bill of sale from Absalom R. Allen to defendant Morris for one of the negroes allotted to and received by him at the division. Complainants objected to its admission; the court admitted it to the extent that it might affect Absalom's interest. To which ruling complainant excepted.

Complainants during the trial, moved to amend their bill by striking therefrom the name of Wiley Pool as complainant, and making him a party defendant, and to insert thename of William W. Clarke as a complainant and next friend of Mrs. Pool. The court refused to allow the amendment, and complainants excepted.

The court charged the jury as follows:

"Absalom and Daniel Ramey conveyed certain negroes to Absalom R. Allen, Naomi and Elizabeth Allen, children of Nancy Allen, with a use for life to Nancy Allen, and at her death to be equally divided between her three children. The legal effect of the deeds was to convey a life estate in the property to Nancy Allen, with remainder to her children. This was a vested remainder. The title to the property vested in Absalom R., Noami and Elizabeth Allen, upon the execution of the deeds by Absalom and Daniel Ramey, but the possession and use by them was postponed until the death of Nancy Allen. Then title was vested, and upon the marriage of Naomi and Elizabeth Allen, their interest in the property, whatever it was, vested in their husbands, and their husbands by marriage acquired the right to reduce their shares of the property into possession upon the termination of the estate of the life tenant, subject to their equity to have their shares settled to their separate use. Nancy Allen having a life estate in the property, had the right by herself or by her husband to relinquish it to those who were entitled to the remainder, and if the relinquishment was made by her husband, and she gave her assent to it, and ratified it by accepting and carrying out the terms of the agreement, it became hers, and was as valid as if made by her. When that relinquishment was made, the life estate of Nancy Allen was extinguished; it became extinct, by uniting with and merging in the estate in remainder; and the life estate of Nancy Allen being extinguished, the estate of the remaindermen became absolute and unconditional. They then had the right to reduce the property into possession and to divide it, either temporarily or permanently, as they might deem proper.

"If they proceeded to reduce the property into possession, and to make a final division of it, then was the time for the wife of Pool to assert her equity and her right to a separate settlement of her share. If she permitted a permanent division of the property to be made, and her share to go into the possession of her husband without setting up or asserting her equity, she is barred from setting it up afterwards. When the life estate of Nancy Allen was extinguished by merging in the estate in remainder, Wiley Pool and wife had the right to reduce her share into possession. The only restriction to which that right was subject was a right on her part to set up her equity to her share before her husband reduced it into possession; but if she permitted it to go into his possession without asserting her equity, her right to have it settled to her separate use is lost. When the life estate of Nancy Allen was relinquished to the remaindermen, their estate became absolute, and they could make such division of the negroes as they saw proper, and if the division then made was merely temporary, with an understanding that a final and permanent division was to be made at the death of Nancy Allen, such temporary division did not vest a title to any specific portion of the negroes in either of the children of Nancy Allen; upon such division there was not such a reduction into possession as to vest a title in Absalom R. Allen, Wiley Pool and Richard Morris to the negroes respectively assigned them. If that was the division then made by the parties, Elizabeth Pool, upon the death of Nancy Allen, has the right to have a final and permanent division of the negroes, made according to the terms of the deeds of Absalom and Daniel Ramey; and Wiley Pool, the husband of Elizabeth Pool, never having reduced her share of the negroes into possession, her equity attaches to her share, and upon the partition which may be decreed she has the right to have her share settled to her separate use and the use and benefit of her children, free from the control of her husband and from any liability for his debts, and such division mustinclude all the negroes and their increase and profit; the negroes received by Pool and Absalom Allen, as well as those received by Morris.

"But if, when the life estate of Nancy Allen was relinquished to her children, they were all of age and competent to act for themselves, and if they then agreed to make a final and permanent division of the negroes, and did make such division by agreement among themselves, they are now concluded by that division and must abide by it. Such division vested a perfect title in them to their respective shares; and the jury should not decree any further division, and when that division was made, and the shares of each were taken possession of by them respectively, that was such a reduction into possession by Wiley Pool of his wife's share as to bar her equity and her right to have her share settled upon her, and that division also vested a complete title in Absalom Allen and Richard Morris to their respective shares. If, therefore, you believe from the testimony that such final and permanent division was made by the parties, you should find for the defendants."

Counsel for complainant requested the court to charge: 1st. That the equity of Elizabeth Pool can not be barred by any act of her husband, without her consent and approval.

2d. That the Ramey...