Roberts v. Stoner

• Decision Date: 31 October 1853
• Citation: 18 Mo. 481
• Parties: ROBERTS et al., Defendants in Error, v. STONER, Plaintiff in Error.
• Court: Missouri Supreme Court

18 Mo. 481

ROBERTS et al., Defendants in Error,

v.STONER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1853.

1. The act of 1835 concerning “dower” took effect on the first day of December, 1835, and not before.

2. A court, in its discretion, may require a tenant for life of slaves or other property, to give security that the property shall be forthcoming upon the termination of the life estate.

3. Under what circumstances, a writ of sequestration may issue.

Error to Franklin Circuit Court.

This was a proceeding instituted in the Circuit Court of Franklin county by Francis G. Roberts, James R. Wilson and Mary Jane Wilson, his wife, against Isaac Stoner, John Q. Dickenson, Alexander Chambers and A. W. Jeffries.

The petition stated that John A. Roberts, being possessed of certain slaves, died intestate on the first of May, 1835, leaving a widow, Ann J. Roberts, since married to the defendant, Stoner, and two children, the plaintiffs, Francis G. Roberts and Mary Jane Wilson; that the said Ann J. was entitled to one-third of the said slaves during her life, as her dower, and that the said Francis G. and Mary Jane were each entitled to one-third absolutely, and upon the death of their mother, Ann J., each to one-half of the third assigned to her as dower, with the increase, absolutely; that a division was made by order of the county court, and a portion of the slaves set apart to the said Ann J., as her dower, of which the defendant, Stoner, since his marriage with her, had taken possession; that the said Isaac Stoner, although he only had an estate during the life of his wife, was treating the slaves as his absolute property, and had disposed of some of them, as such, to the other defendants, and was attempting to dispose of the remainder; and that two of them had been sold and removed beyond the state to some place to the plaintiffs unknown.

The prayer of the petition was “for a judgment against the defendant, Stoner, for the value of the slaves sold by him, and that his estate in the same be sequestered for the satisfaction of said judgment and costs;” and that all of the defendants be required to enter into bond with security, conditioned for the delivery of the slaves in their possession to the plaintiffs, upon the termination of the life estate of Ann J. Stoner. The plaintiffs also prayed for an order enjoining the defendants from disposing of the slaves or removing them beyond the jurisdiction of the court before the termination of the suit, and for general relief.

The defendant, Stoner, filed his answer, stating that his wife had, by the judgment of the county court, which still remained in force, been endowed of the slaves, absolutely, under the act of 1835, concerning dower, and not merely of a life estate.

This answer was stricken out, and the court proceeded to enter up a final judgment, requiring Stoner to give bond conditioned for the delivery of the slaves in his possession, upon the death of his wife; and the defendant, Stoner, being present in court, and declining to give bond, the court ordered that the sheriff forthwith take the slaves out of his possession, and deliver them into the hands of James Halligan, who was appointed trustee to receive them, and hire them out; and it was ordered that the trustee pay the money arising from the hire to the defendant, Stoner, until the termination of the life estate, and then deliver up the slaves and their increase to the plaintiffs, or those entitled under them. It was further ordered, that Stoner pay over to the trustee the sum of $400, which it appeared he had realized from the sale of a portion of the slaves, and that a writ of sequestration issue against him for said sum. The trustee was required to loan out the money, and pay the interest to Stoner until the death of his wife, and then to pay the principal to the plaintiffs, their...