Magruder v. Stewart's Administrators

5 Miss. 204 | Miss. | 1839

Mr. Chief Justice Sharkey

delivered the opinion of the court.

The court was asked to charge the jury, “that the plaintiffs’ right of action did not acme until the death of Anne Tabor, to whom a life estate in the said negro, Mary, was given by the will of said Brocus, and if the plaintiffs brought their action within six years after that time, the statute of limitation will not bar their recovery.” This the court refused to give, and substituted in lieu thereof the following, to wit: — That if they believed Anne Tabor was the only child of William Brocus, that then the life estate given her by the will, was merged in her right as heir, and that the entire property was vested in her at the death of said testator.

It must be undeniably true that if the charge given was correct, then that which was asked was properly refused, because the heirs of Brocus as such could have no right whatever to the negroes. This point must therefore be disposed of before any other can properly arise, and the only inquiry involved in it, is as to the proper application of the doctrine of merger, to the title of Anne Tabor. A merger takes place when a greater and a less estate coincide and meet in the same person, without any intermediate estate. 2 Black. Com. 177. It is a term which is applied in the acquisition of title to real estate, but we need not stop to enquire whether it be exclusively applicable to things real; many of the marked distinctions which were formerly held to exist between the two kinds of property are now giving way, and it will not be denied that a merger may take place in the titLe in things personal. But admitting that it is a doctrine, applicable as well to personal as to real property, yet the state of case before the court was not such as to justify the charge. A merger is the mere operation of law, and eannot take place to the prejudice of creditors, infants, legatees, or distributees. 4 Kent, 101. The law is not supposed to operate prejudicially. To sustain it in this case would be manifestly prejudicial to the heirs.

Brocus gave to his daughter a life estate. If that bequest was operative, she could not dispose of the property for a longer period than for her life, and this protected the remainder for the heirs at law; but if her life estate was merged in her right as heir, she had an absolute right to the property, and could dispose of it to the prejudice of her own children, who became heirs at her death. Let it be remembered, too, that besides the two illegitimate children, she had also two legitimate daughters at the time Brocus died, for whom no specific provision was made, and it was competent for the testator to provide for them in this way. Whether he intended to do so or not, it is clear that he only intended to give his daughter a life estate, and that intention cannot be defeated unless it be incompatible with some fixed principle of law, but must prevail if it can be legally carried out.

But there is a further reason which is opposed to the charge of the court. The term merger necessarily presupposes the previous existence of the particular estate which is merged. Hence it is said that there is no merger when both estates are created by the same deed, because this would be to avoid one or the other at the instant of its creation, and it could not therefore be the coincidence of a greater and less estate in the same person. Fearne on Remainders, 499 — 502. It is equally fair to reason that a merger does not take place when both estates are to spring into legal existence by the same event, as for example, by the death of the original holder. The force of the rule may be illustrated by the case before us.

Brocus by his will gave his daughter, who was his only child, a life estate in the negroes. The will took effect at his death; at his death also, she became his heir, and then her right as such accrued. If both estates existed, their existence began at the same instant; and at the same instant, also, the lesser was merged in the greater. This cannot be, for if the life estate was merged, it was at the moment of its creation, and it never had a legal existence ; the will, therefore, as to that estate, was void. It would be giving but a momentary existence at best to the life estate, merely that the law in its omnipotence might destroy it, and thus the law of merger would be made to defeat the intention of the testator. If Mrs. Tabor had outlived her children, then she would have held the negroes absolutely, because of the failure of other heirs; but because a contingency might have arisen, on the happening of which her right would have been absolute, this is not to be regarded as sufficient to defeat, the will. This is only a circumstance which might defeat the limitation over, and the rule is that a limitation that is good at the testator’s death, by being afterwards defeated, does not enlarge the life estate. Lenoir v. Sylvester, 1 Bailey’s Rep. 632. Nor is a life estate enlarged, when by possibility the remainder may take effect. As in the case cited, a life estate was given in negroes, and they were afterwards to be emancipated, but a statute intervened, which prohibited the emancipation, and still the life estate was not enlarged. For these reasons we think the charge given was erroneous. Was that which was asked of the court proper?

It is a general rule that the statute of limitations does not begin to run before a right of action exists, for it is generally considered to be a mere bar to the remedy. Mrs. Tabor having a life estate •in the negroes, had the right of possession during her life. Her right was not adverse to that Of the defendants, and having power legally to dispose of her life estate, the possession of her vendee was not adverse during her life. By her death, the right of the plaintiffs attached, and then, but not until then, their right of action accrued. Although' they had a vested remainder, it was only vested in interest, and not in possession. Her possession was altogether compatible with their interest, but it was not their possession, hence we find that the books hold that the statute does not begin to run against the remainder man, until the termination of the particular estate, and the reason of the rule applies to personal as well as to real property.

The holder of a particular estate is bound to protect the interest of the remainder man, and if he refuse or neglect to do so, resort may be had to a court of chancery to compel him. In this light, he may be justly regarded as the trustee for the remainder man, and until he claimed to hold by adverse title, the statute would not run. Nothing appears in this case to show that the defendants ’ intestate did not acquiesce in the title of the plaintiffs, up to the time of Mrs. Tabor’s death, and as the suit was brought within six years after that happened, the statute of limitations constitutes no bar to the plaintiffs’ right of recovery.

Another ground taken in the argument at bar is, that the court erred in refusing to charge the jury that if the right of action accrued during coverture, the suit was propérly brought in the names of the husbands alone ; and also in charging that if the right of action so accrued, the wives should have been joined in the action. This question may be elucidated by a few general principles. When the cause of action would survive to the wife, she must be joined; when it does not survive, she need not be joined, and that which the husband may discharge alone, or of which he inay dispose for his own use, in such cases he may sue alone. It has been decided by this court, that the husband acquires by marriage an absolute right to all the personal property of the wife, and may dispose of the same. Cable v. Martin & Bell, 1 Howard’s Rep. 558. Lowry v. Huston, 3 id. 394. The inevitable consequence is, that he may recover it in his own name. Where the law transfers the property to the husband, the wife’s interest ceases, and the husband must sue alone, or at least, he certainly may do so. 1 Chitty, 83. It would be otherwise if the wife had a continuing interest.

The court also charged the, jury that if William and Stephen Minor were interested in the gross estate of Brocus, they should have been made parties, and that they were so interested by a proper construction of the will. This court on a former occasion decided, that they had no such interest as that here asserted for them, and we see no reason for changing that opinion. See 2 Howard, 912.

These are the prominent points raised in the argument, and being decidedly with the plaintiffs, the judgment must be reversed. Several other questions were made on the application for a new trial, which need not now be noticed.