29 Mo. 117 | Mo. | 1859
delivered the opinion of the court.
This was an action by the widow of Samuel McCune, deceased, to recover the possession of three slaves, which, with all the other property of the testator, were given by his will to respondent during her life or widowhood, with power to dispose of all or any of the slaves should they become disobedient ; and at her death said property was to be divided among the three children, Henry, Joseph and Rebecca. "William L. McCune, John S. McCune and Thomas Cleaver were appointed by the will to make division of the property. In 1852 and after testator’s death, the three last named persons met at the house of resjiondent and made division of a portion of the slaves among the heirs. The slaves in controversy were assigned to appellant and his wife Rebecca, and he took possession of them.
The respondent insists that the slaves were merely loaned to appellant, and that the right was expressly reserved to take them back at any time. The appellant alleges that the partition was intended as a surrender and abandonment of her life estate, and that no conditions were annexed. On the trial respondent read the will, introduced some evidence as to the value of the slaves and their services, and closed. Appellant then proved the division of the slaves, as already stated, at the house of the respondent; that it was made as equal as possible among the heirs ; and that those allotted to appellant shortly thereafter went into his possession, three or four being assigned at the same time to the respondent. It was also proved by John S. McCune, the executor of the will, that the division was made at his instance; that, being desirous of getting the estate off his hands, the legatees being of age, he proposed to respondent that she should reserve
Much of this evidence was wholly irrelevant and had no tendency to prove any assent, either express or implied, to an unconditional surrender of the slaves in controversy to the appellant, or any abandonment of her life estate in them. That one of the heirs may have taken the slaves allotted to him out of the state with respondent’s knowledge, is entirely consistent with the conditions on which she parted with them
On the part of the respondent the court instructed the jury that they might infer a gift from the circumstances of the case in the absence of acts and declarations to the contrary, but that inference may be rebutted by acts or declarations made at the time to the contrary, and if they find that plaintiff, when she assented to the division of the slaves, attached any condition to that assent, it was not necessary to communicate that condition to the defendant, but she can only be held to have parted with the property upon such conditions. The court, on its own motion, instructed the jury, submitting to them the question of the intent and purpose with which the slaves in controversy were delivered to the appellant, and that if there was a delivery to appellant shortly after his marriage with respondent’s daughter without notifying him of any conditions, or that she intended to loan the slaves only, the law would presume a gift of her life interest in the slaves as an advancement, but that this presumption might be rebutted by the evidence. The jury were also told by an instruction given at the instance of appellant, that if the slaves were delivered to him with the understanding on the part of respondent that she could reclaim them at pleasure, yet they ought to find for defendant if she afterwards
The instructions given present the law of the case fully and fairly to the jury upon the evidence. The first instruction only asserts in effect that a party can not be divested of his property without his consent, and that when he does part with it he may annex such lawful conditions to the transfer as he may think proper. This is substantially the instruction. There is no controversy as to the right of the respondent to the property under the will, nor as to the right of the appellant .to a share of it in right of his wife at the termination of the widow’s life estate. It is insisted, however, that, having consented to a partition of the slaves and a delivery of possession of a part of them to the appellant, without notifying him of the condition she annexed thereto, she can not now avail herself, of it, in seeking to reclaim them. If tlie executor acted prematurely and without authority in making partition of the slaves and delivering them to the heirs, then such illegal act can not divest the title of respondent, and she can reclaim them at any time, as she could recover any other property to which she knight be entitled. If the partition and the delivery pursuant to it were made with the intention and expectation on the part of the heirs and executor that it should be final, and- pass the life estate of the widow, it was no act of hers, no. arrangement to which she was a party, and by which she can'not be boun(d unless it was in accordance with the terms she prescribed. In such case the possession acquired by the appellant was acquired without the consent of .the respondent and does not bind her.
John S. McCune, through whose instrumentality the partition was made, seems to have acted for both parties, and not as the agent peculiarly of the respondent. But, if he is to be regarded as the agent of the respondent, he was an
The judgment will be affirmed,-
