Kilcrease v. Shelby

23 Miss. 161 | Miss. | 1851

Mi’. Chief Justice ShaRkey

delivered the opinion of the court.

The plaintiff, as surviving executor of William H. Kilcrease, brought an action of detinue for certain slaves, against the defendant, and, the jury having found for the defendant, the case comes up on a motion for a new trial on the evidence merely.

The property in dispute originally belonged to Thomas N. Shelby, who died in December, 1831, leaving a widow, Mary, and four children, infants, and one other was born after the death of the father. In 1832 or 1833, an informal division of the property was made by some of the neighbors, called in for that purpose by Barnes, who had manied one of the distribu-tees, and the widow. In this division, Moses D. Shelby, then himself a minor, professed to represent or act for the younger children, though he was not then guardian. Barnes received his share of the property, but the rest of it remained in possession of the widóV. The negroes now claimed, were set apart or allotted to her by this division. In December, 1833, the widow intermarried with plaintiff’s testator, and in January, 1834, they removed from Claiborne, to Copiah county, taking these negroes as well as others, and also part of the children. Kilcrease used and spoke of the negroes as his own. In 1838 he died, after having made a will, in ■ which he gave all his property, real and personal, to his wife, during her life, and, by a subsequent clause, he gave her one third absolutely, and the other two thirds he disposed of after her death, and appointed his wife and plaintiff executrix and executor. He left other negroes and real estate, besides those which had been allotted to his wife. The widow, in 1839, returned an inventory of the other property, but did not include in it the negroes sued for, but kept all the property in her possession. In April, 1839, her co-executor moved the probate court to compel her to return an inventory of the negroes claimed by her as part of the estate of her first husband, which application was resisted by her, and overruled by the court.

In January, 1839, M. D. Shelby filed his petition in the probate court, for distribution of his father’s estate, which was granted. At the same time, Mrs. Kilcrease also filed her petition for her distributive share and dower, in Thomas N. Shelby’s estate, which was granted, and on these applications distribution was made, in which seven of the same negroes first allotted to her by the informal division, were again set apart to her, though then- increase, being part of the negroes claimed in the declaration, were set apart to other distributees. This distribution was duly confirmed by the court. In 1842, the co-executor again applied to the probate court to compel her to return an inventory of the negroes, as part of the estate of William H. Kilcrease, which she again refused to do, claiming them as as her separate property, and the court overruled the application; and she continued to hold and claim them as her own, until August, 1846, when she died, after having disposed of them by will, and they came into the possession of the defendant, as executor, he being also the principal legatee. This suit was brought on the 18th of March, 1847.

On this state of facts, it is most manifest that the plaintiff cannot recover, unless he can uphold the first distribution. The wife survived her second husband, and on the principles heretofore settled, her right to the property is unquestionable, if it continued a part of the undivided estate of Thomas N. Shelby. Wade v. Grimes, 7 How. 425; Harper v. Archer, 8 S. & M. 229. That a voluntary distribution, made by dis-tributees amongst themselves, or by other persons chosen by them for that purpose, is valid and binding, is beyond doubt if the parties be capable of binding themselves by contract, or by assent. But at the time of the voluntary distribution, four of the children of Shelby were minors, and some of them were very young. Not only so, but they seem to have had no agency in the matter. They gave no assent, even if such assent would have been binding on them. The doctrine is invoked, that an'lbifant will be held bound by an act which the law ,-yrcxuíd have compelled him to perform. It does not apply, because it cannot be said the lawwould have compelled just such a distribution as this, although it might have coerced distribution .’of the estate. And the partition was actually disaffirmed after some of the children became of age, and partition regularly made 'by order' of court; and this was acquiesced in by the plaintiff. But this question is perhaps .not very material, and the result must be the same, though we should be mistaken in this respect.

It seems that Mrs. Kilcrease never admitted these negroes to be a part of the estate of her husband, Kilcrease, but claimed them as part of the estate of her first husband, and this point was decided in her favor, by the probate court, in April, 1839, when her co-executor endeavored to coerce her to include them in an inventory. That was an adjudication that she did not hold the property as executrix. It was acquiesced in. She not only denied the trust, but her adverse right was sustained and adjudged. From that time the statute of limitations commenced running, and six years had elapsed before this suit was brought, and there is no escape from the operation of the statute of six years, which has been pleaded. Although under the act of 1844, the limitation is changed to three years, yet the last act expressly provides that the previous law may continue to run' where it had commenced. Either act might have been pleaded, as the last had been in operation inore than three years before the action of detinue was brought.

Judgment affirmed.