38 Tenn. 563 | Tenn. | 1858
delivered the opinion of the Court
Richard Hancock died in Cannon county, Tenn., the 15th of July, 1855, leaving a widow and three children, the complainant, Alaminta, and the defendants. This bill is filed for the settlement of the estate, and to set aside a division of the slaves and other property made by the intestate and the parties, a day or two before his death. The slaves are fifteen in number, and are all, together with others given to the children before the last division, the descendants of “ Celia.” The first question which arises in the case, is as to the title to her; whether Richard Hancock had an estate for the life of his wife only, with remainder to her children, or the entire estate. This question is only important now, (as the children have received the slaves, and had a division of them,) on a question of advancement. On the marriage of Alaminta to Owen, two of the oldest of Celia’s children were placed in their hands as a gift, as they say, and they have increased considerably, and in the last division they accounted for them at their then present value; upon the idea that they only got the life estate, and that they wrere subject to the remainder interest .of all the children, when, if they got the absolute estate by the gift, they would only be liable to account for their value at the date of the gift, as an advancement. This would make a very great difference
Here is a disposition of the slaves to his daughter for life, and no express disposition over, except in one event, that she should die without “heirs born of her body,” which, in that connection, clearly means children, and in that event, to go to his, the testator’s, other children. This contingency did not happen, for she. died in 1858, leaving three children — the complainant, Ala-minta, and defendants. It cannot then return to his estate, and the question is, where does it go, when the event upon which it was to go over under the will became impossible 1 The position.. of defendants is¡, that
An estate by implication can only be sustained on the principle of carrying the testator’s intention into effect. That rule may be illustrated by examples like these: A devise over after the death of the wife, or the arrival at age of a child, without expressly giving them any estate, would confer by necessary implication, an estate for life, or during minority. In these, the estate is disposed of in a manner to indicate unerringly, that the use was to be in the persons named until the happening of a certain event; there was no contingency. But here there is no reference to the heirs or children, with a view to give them any distinct estate, but only to specify an uncertain event, by which the rights of others were to be governed. That is, if no children were born of the daughter, then the bounty should not go to strangers to his blood, but return to his other children; but if she should have children, then the reason of limiting the estate to her life, no longer existed, and by making no disposition of it in that event, he clearly intended that her estate should be absolute and unlimited, and the property subject to all the ordinary rules applicable to the personal estate of married women, with reference to the marital rights of husbands, and the laws of distribution. To avoid these consequences, and secure benefits to children by way of what is familiarly called the en
In the will of Armstead Moore, there was a clause very similar to this, which we construed at last term, (5 Sneed, 127,) as we now do this.
Perhaps the only difference is, that there the estate given was general, dependant upon the contingency of dying without heirs of the body, and here it was for “life” in terms. Can this make any difference in the construction ? We think not; and so are the authorities. 2 Bro. Ch. R., 448; 2 Powel on Dev., 602; 22 Law Lib., 321. This is contrary to some of the old cases, but is now well settled. So the life estate expressly given, was enlarged into a fee, upon the birth of a child.
So our opinion is, that the Chancellor was right in holding, that upon the marriage of Richard Hancock in 1809, with the widow, Mary Cooper, and the birth of children, he became absolute owner of the slave Celia and her increase, and could dispose of them by advancement or otherwise, as he chose. And it must follow, that a gift to the complainants after they married, unexplained, would be an advancement; and only to be accounted for by them, in the distribution of his estate after his death, at their value when advanced. Such was the decree of the Chancellor, with the necessary account, upon that basis. To reach these results, it was necessary to make void and set aside a division of the property made by the parties at the instance of the father, a day or two before his death; and a bond signed by them all at that time, in which the slaves
This raises the next and most difficult question.
It seems that on the marriage of complainants, some twenty-five or thirty years before, Jenny, a child of Celia, with her child Minta, were placed in their hands by Richard Hancock, and were by them retained and claimed as their own, down to this division. That they had increased to seven; that four of them had been sold, and the other three still -retained. A short time before the death of the old man, a difficulty seems to have sprung up among the children, as to their rights in relation to the descendants of Celia — whether they were entitled in remainder, after the death of their mother in 1858, under the will of her father, before set forth and construed; in which event the complainants would be bound to return or account for those held or disposed of by them, at their value at the end of the life estate ; or if there was no remainder then, their title by gift was good as an advancement, and they would only be bound to account for the value at the time received, which is proved to have been only five or six hundred dollars.
Their father was very anxious to have the matter settled before he died, and that there should be no contention among his children after his death. Steps were taken to bring the parties together at his house, two or three days before his death, to settle the matter. It appears from the proof, that the old man was not exactly certain as to the nature of his title. He most generally acted and talked in relation to these slaves, as if they were his own, absolutely, both before and since the death
Four or five of the neighbors were requested to attend on the day designated, and make an equal division of all the slaves descended from Celia, including those that complainants had sold, and still held. The referees refused to act, until the parties agreed on some principle on which it was to be done. The difficulty seemed to be in reference to the slaves of complainants; how they should be accounted for. If at the value of the two when received, they would be entitled to a share in the fifteen on hand; but if for their value at that time, they would be entitled to no more; but the fifteen would go to defendants. The dissatisfaction of complainants appeared to be on the ground, mainly, that as they had raised the slaves, the benefit of their increased number and value ought not to inure to the brothers. The consideration, on the other side, was, that they had enjoyed their labor and services for a long period, and had sold four of them, and had the advantage of the proceeds. The complainants, however, brought their slaves forward, and finally acquiesced in the arrangement by which they were to keep the slaves they had, and get another, named Clark; and the fifteen remaining on hand, were to be equally divided between the brothers. This was about equal, or at least there is no complaint of it on that ground. This agreement was reported to the
These facts cannot affect the question. The title was then in Hancock, the father, and he sanctioned and ratified the division, and by that relinquished his title to the parties, respectively, before his death; nor does his personal representative take exceptions, or claim any of the slaves as the property of the estate. It is not for the complainants to make objections on that ground, because they took and held possession of the share allotted to them, both as to slaves and notes. No right had descended to any of them at that time, as the owner still lived. But the possession may be regarded as passing on that day, as the parties, and the slaves were all present, and the fact that they were not removed before the death, can make no difference, so far as the complainants are concerned. If the administrator could possibly make this question, which we do not concede, yet, certainly, they cannot. For the same, and other reasons, the want of a written conveyance from the old man does not invalidate the agree
Something is said in argument about the invalidity of the consent or waiver of her rights by complainant, Alaminta, on account of her coverture. She had no rights to waive; none had vested in her by the death of her father at that time, in the fifteen slaves, nor had she any in the others claimed as an advancement; for to them the marital right of her husband had attached. And even after the death, the right she would have by descent, in personalty, would be under the husband’s control, subject only to the wife’s equitable claim to a settlement until possession had been obtained, or the right legally disposed of by him. But in this case, no rights existed in any of them to the fifteen slaves, and none could or did pass from one of them to the other, but only from the owner.. It does not change the nature of the transaction, that he called them, or others into consultation, and chose to conform his action to their agreement, among themselves.
There is no doubt but that complainants, as well as defendants, acted upon the idea, that by the will they were entitled to the remainder in the slaves, and that it was what they called entailed property. There can be no doubt either, but that such was honestly the opinion of all concerned, at that time. It is very likely also, that complainants would not have agreed to the arrangement they did, if they had not believed the law would compel them to do so. But there is just as little doubt that equity and equality has prevailed over their strict legal right, and this was ardently desired by their father. He certainly had the unquestionable power, by gift or
On the 12th of July, 1855, when the four neighbors met, as before stated, for the purpose of making the division of the slaves, a writing was drawn up by one of them, Joseph Clark, binding all parties to stand to their action in the matter, under a penalty of $8,000.
This article was signed by all the parties, and by it they agreed that they should value, and equally divide into three parts, all the slaves, that is, the fifteen on hand, and those then held, or which had been sold by the complainants. As before stated, these men did not perform the duty assigned them, but the parties agreed upon the division themselves, and reported to them on the second day, 18th of July, that they had been able to come to an agreement among themselves, and with that they were all satisfied, and the referees thereby relieved from the duties imposed upon them in the writing.
Under all these circumstances, should a. Court of Equity restore the complainants to their legal advantage, on the question of advancement, and interfere with the solemn agreement of the parties, by which equality and
The decree will be reversed upon this ground, the adjustment' of their rights made on the 13th of July, 1855, will stand; and the account taken, and the estate finally settled on that basis.