Smith v. Denny

• Decision Date: 31 October 1865
• Citation: 37 Mo. 20
• Parties: WILLIAM H. SMITH et als., Appellants, v. RAPHAEL DENNY et als., Respondents.
• Court: Missouri Supreme Court

37 Mo. 20

WILLIAM H. SMITH et als., Appellants,

v.RAPHAEL DENNY et als., Respondents.

Supreme Court of Missouri.

October Term, 1865.

Appeal from St. Charles Circuit Court.

The petition was as follows:

“William H. Smith and F. Leona Smith, by John M. Keithly, their guardian; Woodford Keithly and Mary M. Keithly his wife, plaintiffs, v. Raphael Denny, Lawrence Fisher, Raphael Denny, executor of Rachel Denny, Raphael Denny, and Martina Denny, administrators of John Denny, defendants.--In the Circuit Court of St. Charles county, May term, 1865.

Plaintiffs by leave of court file their amended petition, and state that Rachel Denny, on the _____ day of November, 1842, by deed of that date, which deed is not in possession or under the control of the plaintiffs--a copy of which is herewith filed--conveyed to John Denny as trustee for Mary Smith, the wife of John Adam Smith, two certain slaves named George and Sarah, in which deed it was stipulated that said Mary Smith should have the actual use, management and control of said slaves so long as she should live, and at her death said slaves should descend to the children of the said Mary Smith, to be their absolute property.

Plaintiffs say that, at the date of said deed, the said Mary Smith was the wife of John Adam Smith; that the said Mary Smith died in year 1845, and J. Adam Smith died in 1851, they leaving one child born of their marriage surviving them named Rachel Ann Smith; that at the death of the said Mary Smith said slaves descended to and became the absolute property of the said Rachel Ann Smith, who was her only child.

Plaintiffs further state that the said Rachel Ann Smith departed this life in the year 1853, being yet a minor, unmarried, and without issue, leaving as her only heirs John Smith, William H. Smith, Mary Smith (now wife of Woodford Keithly), and Frances Leona Smith, her brothers and sisters of the half-blood by marriage of her father, the said John Adam Smith, prior and subsequent to his marriage with the said Mary, the mother of the said Rachel Ann Smith;--that no administration letters were ever granted, nor was there any administration on the estate of said Rachel Ann Smith; that, after the death of said Rachel Ann Smith, one of her half-brothers, the said John Smith died, being yet a minor, unmarried, and without issue, leaving the plaintiffs his only heirs, and no letters of administration were ever granted, nor has there been any administration of his estate, and his death occurred at least three years before the commencement of this suit; that John M. Keithly was duly appointed and qualified as guardian of said William H. and F. Leona Smith on the 14th day of July, 1856, and is still acting as guardian of them. By reason of all which, the said plaintiffs and the said John Smith, now deceased, became the owners of, and were entitled to, the possession of said slaves, as the heirs of Rachel Ann Smith at her death.

Plaintiffs further say that, after the death of the said Rachel Ann Smith, Sarah, one of the said slaves, came into possession of the defendants Raphael Denny, Lawrence Fisher, John Denny (now deceased), and Rachel Denny (now deceased), who wrongfully converted said slave to their own use, and sold her to one E. C. Stewart, on the first day of January, 1857, for the price of one thousand and thirty dollars, and received said sum of money from said Stewart and converted and applied the same to their use, and said slave was removed beyond the jurisdiction of this court and to parts unknown to plaintiffs; that since said sale and conversion the said Rachel Denny hath departed this life, and said Raphael Denny is her executor, duly qualified and acting; that said John Denny has also died since said sale and conversion, and Raphael and Martina Denny are his administrators and have charge of his estate.

Plaintiffs therefore say that, by reason of the premises, they are entitled to have and recover of defendants the value of said slave Sarah, as aforesaid, and defendants became liable to pay the same at the time of her conversion, which said slave on the first...