Salmons' Adm'rs v. Davis

• Decision Date: 31 October 1859
• Citation: 29 Mo. 176
• Parties: SALMONS' ADM'RS, Respondents, v. DAVIS et al., Appellants.
• Court: Missouri Supreme Court

29 Mo. 176

SALMONS' ADM'RS, Respondents,

v.DAVIS et al., Appellants.

Supreme Court of Missouri.

October Term, 1859.

1. One S. died in Kentucky in 1826. No administration in form was had upon his estate, but his widow and heirs made a division of his property, and a certain female slave named Milly was, with other property, assigned to the widow. About ten years after the death of her said husband the widow removed to the state of Missouri, bringing with her said slave Milly and her children. She died in 1855, and by her will disposed of said Milly and her children. Letters of administration were afterwards taken out upon the estate of S. Held, that the administrators of S. were proper parties plaintiff in a suit brought for the possession of said slaves in behalf of the representatives of said S.

2. The possession of a tenant for life is not adverse to the reversioner or remainderman; and he can not, by his acts and declarations, make his possession adverse so as to enable him to invoke the statute of limitations.

3. A husband dying, his widow and heirs made a division of his estate, including slaves, among them. The widow afterwards dying, the administrators of the husband instituted suit against persons claiming under the widow for the possession of certain slaves that had been assigned to the widow. Held, that a bond executed by the heirs at the time of the division and by which they bound themselves to abide by the division, but which was not signed by the widow, though read over to her and not objected to, was admissible in evidence as part of the res gestæ, in behalf of the administrators, to show that the assignment was made to the widow as dower and not absolutely.

4. Declarations of a person in possession of personal property as dowress for life only, can not be received in evidence to elevate her estate into an absolute one.

Appeal from Pike Circuit Court.

The facts sufficiently appear in the opinion of the court.

Broadhead and Wells, for appellants.

I. By the law of Kentucky at the death of Salmons, slaves descended to the heirs, as real estate. The title, therefore, vested in the heirs, and the administrators could acquire no title. The county court of Lincoln county had no authority to grant letters on the estate of Salmons, he never having resided or owned any property in this state. The court admitted illegal evidence, to-wit, the declarations of J. K. Salmons and others, heirs of Joel Salmons, contained in the deposition of Williams. The bond of the heirs was not admissible in evidence. It was not executed by the widow. It did not bind the widow and was never intended to do so. The declarations made by Mrs. Salmons as to her absolute title to Milly were improperly excluded. These declarations were competent to show the nature of her possession. The error of the court was in assuming that it was proven that Eve Salmons took a life estate only. The court erred in refusing the instructions asked.

Henderson and W. Porter, for respondents.

I. The articles of agreement were properly admitted in evidence. The declarations of the widow were properly excluded. (21 Mo. 522; 24 Mo. 221; 27 Mo. 220.) The statute of limitations is not applicable to the present case. (Angell on Lim. 181; 5 B. & Ald. 204; 12 Wheat. 129; 2 Mart. 422.) The statute can not run against an administrator until the grant of letters. (19 Mo. 467; 26 Mo. 291.) The court properly excluded the declarations of some of the heirs of Joel Salmons; so the declarations of Nathan Salmons, one of the administrators. The court properly refused the instructions asked. The suit was properly brought in the name of the administrators. (1 Marsh. 14; 1 Monr. 255; 6 Monr. 139; 1 J. J. Marsh. 16; 2 Bibb, 188; 2 J. J. Marsh. 203; 1 Kentucky Stat. p. 666, § 41.) It was no case for the application of the statute of limitations. There was no cause of action until the death of Mrs. Salmons. (Angell on Lim. 185; 5 B. & Ald. 204; 23 Mo. 344; 12 Wheat. 129.) The slaves were received as dower. Mrs. Salmons had only a life estate. The instructions were correct. (21 Pick. 88, 80; 4 Ala. 166; 24 Mo. 399; 1 Dana, 340; Story, Confl. 429, 439; 9 Wheat. 571; 5 Pet. 518; 20 Johns. 265; 1 Mo. 726; 1 Williams on Executors, 267; 14 Peters, 32; 2 Phill. Ev. 550; 8 Wheat. 671; see 2 Mo. 48; 1 Harr. 337; 2 Bibb, 89; 1 A. K. Marsh. 10; 3 Litt. 180; 5 Cranch, 358; 27 Mo. 421.)

NAPTON, Judge, delivered the opinion of the court.

One of the principal questions in this case is whether the administrator of Joel Salmons or his distributees should have brought this action.

Salmons died in Kentucky in 1826. No administration in form was had upon his estate, but his widow and children (who were all of age but one) divided out his property, and the mother of the slaves now sued for, with other property, was assigned to the widow as her share of the estate. The theory of the action is that the slave was received as dower. However that may have been, the widow brought the slave Milly and her children from Kentucky about ten years after the death of her husband, and died here, shortly before this suit was instituted, in possession of the slaves. She undertook to dispose of them by a will, and her executors are accordingly the defendants in this suit, maintaining that the title of Mrs. Salmons to the slave Milly was absolute; and the plaintiff, representing the interests of the personal distributees of Joel Salmons, maintaining that the title of Mrs. Salmons was only for life, and that on her death the slaves vested in him as administrator of Joel Salmons. The question is, taking the plaintiff's view of the facts to be true, can the administrator, under the circumstances, maintain the action, or must the heirs of Joel Salmons bring the action in their name? The question only affects the form of the proceeding, for if the plaintiff prevails as administrator, he will recover merely as a trustee for the distributees.

It is well settled both in Kentucky and Virginia, where the law declares slaves to be real estate for some purposes, that they do not, in cases of intestacy, descend like land directly to the heirs, but go to the administrator as assets. Without the assent of the administrator, the title of the heir is not complete, and he cannot maintain an action for them against a third person. After the passage of the act of 1800 in Kentucky, (2 Littell, 374) slaves devised were no longer considered assets in the hands of the executors, but were held to pass, like land, directly to the devisee. But where there was no will, notwithstanding the statute declared them to be real estate, slaves, just as other personal property, passed upon the death of their owner into the hands of his administrator, and he alone could sue for them. (Woodyard's heirs v. Threlkeld, 1 A. K. Marsh. 14; Irons v. Luckey, ib. 54.)

There is no doubt, therefore, that the administrator is the proper person to sue for slaves belonging to the estate of his decedent in ordinary cases, and where the property has never been administered on and handed over to the persons entitled to it after the payment of all claims against the estate.

Where there is a particular estate in a chattel and a re mainder over, a delivery to the owner of the particular estate may be considered as a delivery to the person who has the remainder. Upon the death of the tenant for life in such cases, the title to the property is vested in the person having the remainder, and he alone is the proper person to bring an action for its recovery. As where a person dies, leaving slaves to A. for life, with remainder to B. absolutely; upon the death of A., to whom the executor or administrator of the devisor has delivered them, B. may maintain his action. The property has passed from the estate, and the administrator has nothing more to do with it.

But where a life estate is created by will or by law, and no remainder is designated, the reversion, as the remainder is then called, falls back into the assets of the original estate, and the administrator, in such cases, is the proper person to sue. Such may be regarded as the character of the present case, where slaves have been assigned as dower, which is a life interest only, and the reversion on the death of the dowress is in the estate of the husband. The administrator of that estate, and not the heirs or distributees, may well sue considering the property as falling back into the mass of assets. This course will not only be more convenient, but in some cases it may be important to the rights of the distributees, who may have been unequally advanced in...