Smart v. Easley

• Decision Date: 24 December 1830
• Citation: 28 Ky. 214
• Parties: Smart v. Easley
• Court: Kentucky Court of Appeals

28 Ky. 214

Smart v. Easley

Court of Appeals of Kentucky.

December 24, 1830

Detinue. Limitation. Baron and Feme. Wills. Acceptance of a Legacy. Evidence. Possession.

ERROR TO THE SHELBY CIRCUIT; HENRY DAVIDGE, JUDGE.

Monroe for plaintiff.

Richardson for defendant.

OPINION

ROBERTSON CHIEF JUSTICE:

A verdict and judgment having been rendered in favor of the defendant in error, in an action of detinue brought against him by the plaintiff, for a slave, Isaac, this writ of error is prosecuted to reverse the judgment.

The plaintiff proved facts, conducing in some degree to prove a gift of the mother of Isaac, by Peter Depp in Virginia, to the wife of the plaintiff, about thirty-three years ago, when she was a child.

The defendant proved facts, conducing to show that the gift was to Mrs. Johnson, the daughter of the donor and mother of the plaintiff's wife; and also proved that the slave thus given, remained in the possession of Johnson, the father of the plaintiff's wife, from the time of the gift, until his death, which occurred only a short time before the institution of this suit; that Johnson exercised the proprietorship over the slave and her issue; and that the defendant holds Isaac by purchase, under the claim of Johnson, or of Mrs. Johnson.

The circuit court instructed the jury,

1st. That if they believed that Johnson was in the adverse possession of the slave five years after the plaintiff's marriage, and did not hold in right of the plaintiff's wife, they should find for the defendant.

2d. That the plaintiff should not recover, if he had received any portion of the estate devised to him by Mrs. Johnson, under whose will the defendant holds the slave in contest.

The circuit court also permitted a son and a daughter of Johnson to give testimony for the defendant, notwithstanding the objection of the plaintiff; and overruled a motion for a new trial.

The assignment of errors questions all the foregoing opinions of the circuit court.

We are of opinion that there is no error in the record.

1st. The instructions were proper. If the right of the wife was such as the law vested in the husband on marriage, five years adverse possession after the marriage barred his cause of action. If the wife's right was in action merely, then the husband could not, alone, maintain the suit. Therefore, there can be no valid objection to the first instruction.

If wife's right to a slave was such as the law vested in the husband on marriage, five years adverse possession of the slave by another after the marriage, bars the husband's right of recovery.

It seems from the tenor of the second instruction, and from other instructions in the record, that Mrs. Johnson, who survived her husband, made a will whereby she devised the slave in contest, and other property, and that the plaintiff, as one of the devisees, took the property devised to him. The will is not in this record. If, therefore, we must disregard it, the instruction was abstract, and consequently, inoffensive, as it was hypothetical. But if the will was before the jury, or the facts on which the instruction was based admitted, we perceive no error in the opinion of the circuit court, as expressed in that instruction. If the plaintiff accepted the legacy in the will, he must be considered as having waived his claim to the slave, devised to another person. He can not hold under the will and against it. His acceptance of the devise was by operation and intendment of law, as well as by presumption in fact, without any evidence of any other intention, an abandonment of his claim to Isaac; and consequently, he is concluded at law, as well as in equity.

If a person accept a legacy under a will, he waives his claim to all other property disposed of by the will. A person can no?? hold under a will and against it. Acceptance of a devise under a will, is by operation and intendment of law, an abandonment of all claim to the other property devised by the will.

2d. We will not, in the absence of proof, presume that the witnesses objected to, were incompetent. It does not appear that they had any interest in the event of this suit. The fact that they are children of Johnson or of Mrs. Johnson, does not necessarily or prima facie prove any such interest. If the slave was devised specifically to any other person than themselves they were not interested. If there was no will, they may not be interested. No fact appears, from which a disqualifying interest can be necessarily inferred. It was the duty of the plaintiff to prove their interest or fact from...