11 Ala. 609 | Ala. | 1847
Lead Opinion
We think the principle stated in Olds v. Powell, 7 Ala. 655, governs this case. A will not published, or made known to others, would not be evidence of an intention, not to give the entire estate, because to countervail the presumption which the law makes of a gift, where property is sent home to the new married couple, the declaration of a contrary intent should be open and clear, and not left to be inferred from doubtful or ambiguous circumstances, which the donor might avail himself of, or suppress at his pleasure. But we cannot perceive how the fact, that it was written down, as well as declared verbally, can alter the case. The slaves being then in the possession of the donor, the fact of making the will, pursuant to the declared intent before the property was sent, is strong evidence of a fixed and settled purpose, not to give-the son-in-law the entire estate.
The objection is urged, that a parent cannot by a parol de- ‘ claration, create a remainder over, after the termination of the life estate. We do not understand that to be contended for here, but that the will, considered as a declaration, was evidence, in connection with the verbal declarations made previous to the property being sent home, that the father did not intend to make a gift to the son-in-law. It was then necessarily a mere loan of the property, the title remaining in the father, and at his death it passed according to the pro•visions of his will. [Banks v. Hatton, 1 Nott & McCord, 221; Collier v. Poe, 1 Dev. Eq. 55.]
The case of Hill and Hill v. Duke, 6 Ala. 259, depends upon different principles. Undoubtedly, in a case where the transaction was recent, or comparatively so, the question would be the same, whether it arose between the donor and donee, or between the former and á creditor, or purchaser from the latter; but after a long continued possession by the donee, in a controversy between his creditors and the donor, a subsequent gift might be inferred, especially in cases not affected by the statute of frauds. Thus, in the case last referred to, this court says, “ when such a loan is extended over a period of ten years, and no period is fixed for its determination, it is not too much to say, in a contest between a creditor and the donor, that a strong presumption to infer a subsequent absolute gift, is well warranted, even if the bail
The remaining question is, whether this action can be maintained by the surviving brothers and sisters, without any administration upon the estate of the brother, who died in infancy. At common law, personal property did not descend to the heir, but was vested in the ordinary, and it was not until the 31st Edward 3, that the ordinary was required to grant administration to the friends of the deceased. Our statute law has also directed, who shall be entitled to administration, and how the surplus after the payment of debts, shall be distributed. From this it follows, that the legal title to the personal property of one dying intestate, can only be derived through an administrator. Although therefore, an infant of six years of age has no capacity either to make a will or to contract debts, yet as his personal estate does not descend to his heirs at law, no action can be maintained by them at law for its recovery, unless they can deduce their title through an administrator, in virtue of the statute of distributions. This was held by this court in Hogan v. Bell and wife, 1 Stewart, 536, and Boyett v. Kerr, 7 Ala. 9.
In courts of equity, where it is not necessary that the legal title should be vested in the plaintiff, an administration may be dispensed with, where the right is asserted by those who would be entitled to distribution, and where it is clear there are no creditors to be prejudiced. Such was the case of Bethea v. McColl, 5 Ala. 315.
But even these are exceptions to the general rule, which is the same in equity as at law.
To recover in the action of detinue, the plaintiff must have the entire interest in the thing sued for; either the absolute property with the right to the immediate possession, or a special property as in the case of a bailee. As therefore it appears, that one-fourth part of these slaves vested in the deceased infant, upon the death of his mother, his remaining brothers and sisters, though his distributees, can derive their title to it only through his legal representative ; and as their
The authorities referred to on the subject of joint tenantcy, have no application here. Let the judgment be reversed.
Concurrence Opinion
I concur in the result of reversing the judgment, but I think it should be reversed on both grounds. I fully concurred in what was said in Powell v. Olds, but I think the facts given in evidence here go greatly beyond that case. Undoubtedly declarations made by a parent about the subject matter of a gift to a daughter or any other child, are proper as part of the res gesta. But it is only on the ground that the gift is then the matter transacting. The making of a will is a different transaction altogether, and the res gesta attendant on. that cannot in my judgment be connected with another and different transaction, to wit, the act of sending the slave home with the daughter. Each transaction is a different one, and, though either may be explained by declarations made at the time, the declarations attendant on the one, in my judgment, are not admissible to explain the other.
