Stewart v. Pettus

• Decision Date: 31 July 1847
• Citation: 10 Mo. 755
• Parties: STEWART v. PETTUS, TO USE OF, &c.
• Court: Missouri Supreme Court

10 Mo. 755

STEWART

v.PETTUS, TO USE OF, &c.

Supreme Court of Missouri.

July Term, 1847.

APPEAL FROM LINCOLN CIRCUIT COURT.

WELLS, for Appellant. 1. The paper offered in evidence as a will, is not a will. It was never proved and recorded in this State, as required by the statute on Wills. It was illegal to prove it in Virginia; no law either of that State or this authorizes the proof of a will of a citizen of Missouri in Virginia. This point is settled by reference to the evidence and our statute on Wills. 2. The will vested no legal title in Pettus. It willed the property to Peggy Batte, and merely gave a power of control to Coleman and Pettus. 3. If any legal estate vested by the will in Coleman and Pettus, it does not vest in Pettus by survivorship, upon the death of one trustee. If both trustees had died, where would the legal estate have vested? Certainly in their administrator. 4. The court erred in excluding the evidence of Mrs. Batte's assent to the sale. It was competent to show fraud. If the trustees leave the property in her hands, she is their agent, and her acts affect their title. 5. The verdict was clearly against the instructions of the court.

CAMPBELL, for Appellee. 1. The will of Tabitha Batte was admitted to probate in the State of Virginia, where the party lived at the time of execution, according to the laws of that State, and need not be admitted to probate in this State. See case of Allison v. Bowles, 8 Mo. R. 2. The possession of the negro after the death of Tabitha Batte was in Peggy Batte, and the creditors of Thomas C. Batte had no right to seize on her for his debts. 3. The will must be construed liberally according to its obvious intent and true objects, which was to secure the property to Peggy C. Batte, and to prevent it from becoming liable for the debts of Thomas C. Batte, in any event whatever, and for that reason its terms must be takon not in a strict technical sense, but in such sense as will carry into practical legal effect the intentions of the testatrix. 4. The obvious intention of the will was to vest the control and management of the property in the trustees for the benefit of Peggy C. Batte, according to its directions, and that the powers of trustee should be exercised either by Pettus or by Coleman, as the property might be in Virginia or Missouri at the time of her death. 5. It was competent for Tabitha Batte to make a will creating a trust peculiar in its nature, and differing somewhat from ordinary trusts, and that she appears to have done, and the will should be carried out in conformity to the true intent of the testatrix, disregarding mere forms of expression. 6. The statutes of this State do not prohibit the probate of wills in a manner different from the modes specifically pointed out in the statute. 7. There is no evidence that either the defendant or Thomas C. Batte ever had any title or pretense of title to the slave.

SCOTT, J.

Tabitha Batte, in the year 1836, resided in the State of Virginia, where she made her last will and testament in conformity to law. By this will, she bequeathed, in trust to William G. pettus and James Coleman, all her property for the benefit of Peggy C. Batte, her daughter-in-law, and wife of Thomas C....