14 Ala. 121 | Ala. | 1848
The exemplification of a copy of the' record by which it was proposed to show the probate of the will of Elizabeth Barge, states that the will of the testatrix was offered for probate to the court of pleas and quarter sessions of Robeson county on the fourth Monday of May, 1831, by the executor, Charles B. Jones. Whereupon, George Wilcox, claiming to be next of kin and heir at law of the testatrix, prayed to enter a caveat to the probate ; and an is
It is shown by the record, of the pleas and quarter sessions, that Charles B. Jones, qualified as the executor of Mrs. Bárge’s will agreeably to the procedendo in May, 1832, and that the will was recorded. Both the transcripts are certified pursuant to the act of Congress of May, 1790; in each of them the will is set out in extenso, and in one of them the verdict of the jury upon the issue submitted to them.
It is insisted that as the inferior court was commanded by the procedendo not only to register, but to take the probate of the will, it should affirmatively appear that this mandate had been obeyed by causing proof to be made per testes, to entitle the will to be received as evidence. This argument cannot be maintained. The object of the proceedings in the superior court was to test the validity of the will, and the verdict, with the order thereon, very satisfactorily established it. These should, and doubtless were regarded by the common pleas and quarter sessions, as conclusive of its genuineness, and authenticity. The order under which the proce-dendo issued, would perhaps have been more accurate, if it had required the verdict to be certified to the probate court, without giving specific directions as to the proceedings thereon; unless its form was prescribed by some statute or rüle of court. But be this as it may, it was altogether competent for the inferior court to have received the record of the trial, as evidence conclusive of the validity of the will, and dispensed with the examination of witnesses. In fact, the litigation superinduced by the caveat was directly upon the point to which the witnesses would have been examined; the finding of the jury and consequent order was res adjudí-cala, and superseded, if it did not necessarily exclude, an inquiry into the facts which were determined by the verdict.
The probate of a will is a judicial proceeding, and when
The deed from Jones to the plaintiff, as a trustee for Mrs. Mitchell and her children, recites the decree of the superior court of equity of Robeson county, North Carolina, as the authority for its execution, and appears to conform to its requirements. There can be no doubt but the execution of this deed was proved at the trial; for the bill of exceptions recites that'“the original deed, made under, and in virtue of
In Ross v. Durham, 4 Dev. & Bat. Rep. 54, it was decided
It is certainly not indispensable to a valid bequest of a chattel, that the testator should have had the actual possession of it; more especially if his right is admitted by those who stand in a predicament to controvert it. But giving to the testimony the fullest effect that can be claimed for it, and it does not negative the fact of the testatrix and her husband’s possession under the pretended sale to the latter, by Thomas Mitchell. If, however, it be conceded the want of possession was shown, it cannot render the bequest inoperative, if the fraudulent vendor submitted the slaves to the disposition of the will. The sale by that act would be consummated and valid against him, although it might be invalid against his creditors, on the ground that it was intended to delay, hinder and defraud them; but it would be good against all persons not claiming as a creditor or purchaser of the vendor. As the defendants do not come within either of these categories, they cannot insist upon the fraud as giving them a right paramount to the legatees under Mrs. Barge’s will.
The assumption of the defendants, that if Thomas Mitchell and Lewis Barge perpetrated a fraud in the pretended sale by the former, that the slaves might be settled on the family of the latter, and in pursuance of such an understanding, Mrs. Barge consummated the trust by her will, then the creditors of any party in possession of them may show the fraud, and the trust will not protect them from liability to such creditors, cannot be supported. True, if the transaction was fraudulent as supposed, the transfer of the slaves would be void against the creditors of Mitchell; but if it was acquiesced in by them, the creditors of a party who might acquire the possession under the cestui que trust, could not subject the property to liability to pay the debts of such a party.
Possession of a chattel is prima facie evidence of property in the possessor; but if the plaintiff has never had possession of the chattels, or if the contest be not with a mere stranger, but with one who will succeed in his proof of title, unless the plaintiff can prove a better, it is necessary for the latter to resort to strict evidence of title. If, therefore, the action be brought against a wrong doer, the mere fact of possession by the plaintiff is usually sufficient evidence of title, although the plaintiff claims under a title which is defective; for the possession of property is prima facie evidence of ownership. Traylor v. Marshall, 11 Ala. Rep. 458. In Tanner v. Allison, 3 Dana’s Rep. 422, it was decided that in detinue it is allowable to show the title is not in the plaintiff, but in a stranger. Whether such testimony is admissible where the defendant has acquired possession tortiously, or does not connect himself with the third person, we will not stop to inquire : and as there is nothing in the record from which it can be inferred that any one else had a right to the slaves, paramount to the plaintiff or defendants, it is unnecessary to consider the particular character of the defendants’ possession. Admitting the sale by Thomas Mitchell was intended to defraud his creditors, yet we have seen that as he parted with the possession, and the defendants do not claim through his creditors, or as a purchaser from him, the fraud is immaterial in the present case; and the court might very well have refused to charge that the plaintiff could be defeated if defendants showed title in a third person, on the ground that such an instruction would have been abstract. It cannot be assumed that Lewis Barge left other distributees than his wife who are entitled to the slaves in question, and that therefore Mrs. Barge’s will is pro tanto inoperative. The possession of her executor is prima facie evidence that the title was transmitted by her will, and if it were allowable to institute an inquiry on this point, the onus of disproving this presumption devolves on the defendants.
In respect to the settlement or bequest of property to the separate use of a married woman, it must be remarked that the common law will not allow her to possess personal pro-
The proof in the cause very clearly shows, that although the defendants purchased the slaves at a sale by the sheriff, under execution, yet the possession was not changed by con