Ragsdale v. Norwood

38 Ala. 21 | Ala. | 1861

STONE, J.

It was evidently the ancient law, that a remainder in things personal could not be created even by deed. As part of the reason for this, it was said, that per■sonal property could nbt, in any correct sense, “ be held for any estate,” but was the subject of absolute ownership.—See 2 Black. Com. 398 ; Williams on Personal Property, 7, 199, 200. and note; Sugden oh Property; 64 Law Library, 355-6.

So in America, some of the States have held, that no remainder in chattels can be created by deed.—See Cutler v. Spiller, 2 Hayw. 130 ; Gilbert v. Murdock, ib. 182 ; Vass v. Hicks, 3 Murph. 494; Sutton v. Hollowell, 2 Dev. Law, 185 ; Morrow v. Williams, 3 Dev. Law, 264; Betty v. Moore, 1 Dana, 236.

This stern rule has yielded to. exceptions in England, and. has been generally repudiated on this side of the Atlantic. In this State, it was early settled, and has been steadfastly maintained,, that a- remainder in- things personal can be created by deed. — Catterlin v. Hardy, 10 Ala. 511 ; Shep. Digest, 536.

|rhe rule we have declared' in reference to the perfection of oral gifts is, that the thing must pass from under the power and dominion of one person, into the possession,, control and dominion of another, who must be either the donee, or- some person who receives the dominion and control for the donee^-Smith v. Wiggins, 3 Stew. 221; Sims v. Sims, 8 Porter, 451; McCutchen v. McCutchen, 9 Porter, 656; Pope v. Randolph, 13 Ala. 221; Easly v. Dye, 14 Ala. 166-7; Thomas v. DeGraffenreid, 17 Ala. 610; Stallings v. Finch, 25 Ala. 518; Ivey v. Owen, 28 Ala. 647. (Under this principle, it is contended, that the gift of the remainder in this case is not perfected, because no person has. received the dominion and control of the slaves in contror yersy, for the benefit of those who claim in remainder.!) Probably this-argument is answered by the analogy to that principle, well settled in this court, which asserts that, when a legacy is to one for life, with remainder to another, the possession of the life-tenant is the possession of the remainder-man; and the assent, of the executor to the be--, quest to the first taker, is an assent to the gift in remainder., Magee v. Toland, 8 Por. 36; Pitts v. Curtis, 4 Ala. 350 ; Brown v. King, 10 Ala. 819; Chambers v. Perry, 17 Ala. 726 ; Gibson v. Land, 27 Ala. 117 ; Walker v. Fenner, 28 Ala. 367 ; Thrasher v. Ingram, 32 Ala. 645, 6681 Roper on Legacies, 570 ; Cains v. Marley, 2 Yerger, 584.

Although the rigor of the ancient common law, in rela.tion t<3 the creation^ of remainders in things personal, has yielded much to the spirit of progress • observable in our modern jurisprudence; yet we have never held, that such remainder can be created ,by oral gift ? and, although what-is called a sealed instrument has, for many purposes, ceased to be, with us, distinguishable fropj unsealed writings^ save by the employment of a rather"unmeaning scrollCstill we have refused to recognize the validity of a gift of personalty not perfected by delivery, even though the attempted gift be evidence»! by writing, unless it be also under the seal of the donor^fr Connor v. Trawick's Adm'r, 37 Ala. 289.

In the case of Kirkpatrick v. Davidson, (2 Kelly, 302,) the supreme court of Georgian-said : “The common law has never gone further than to extend the right to create remainders, over in personal estate hy writing; such were its provisions at the beginning of the revolution, when, adopted by this State. The inquiry, then, very naturally presents itself, by what authority can courts take it upon themselves to dispense with this writing ¶ It is not pre-. tended that there is any statute still further extending the-common law; and, in the absence'of such legislation,, where the common law stops, we must stop. And public - policy stands decidedly opjoosed to a wider departure from the ancient doctrine of the law as to these limitations. < If, even when evidenced by grant ov.nHlí, they are justly ob- -. noxious to the eloquent strictures of Judge Tucker, what-shall we say of them when resting in parol ? Slaves, and^ othej personal property, in the .possession of one person*, with remainder over to some half-dozen others in succession, to any number of lives-in being and twenty-one years and the period of gestation' after — :what inextricable confusion ! what a rich harvest of perjury-!” ■ See, also, Maxwell v. Harrison, 8 Georgia, 61 ; Fitzhugh v. Anderson, 2 Hen. & Munf. 289; Keyes on Chattels, § 407; Payne v. Lassiter, 10 Yerger, 607.

( So, we think that, to allow the creation of a remainder ih things personal by oral gift, would open a wide door for.,injustice, fraud, and even for perjury on the part of witnesses. We follow the precedent set us by the supreme court of Georgia, and hold that the remaindei\attempted to be set up in this case is. inoperative and void. J

We are not unmindful of the fact, that this'court has given effect to separate estates of married women in personal property, created without writing. — See Crabb v. Thomas, 25 Ala. 212; Lockhart v. Cameron, 29 Ala. 355. And we confess that it is somewhat difficult to distinguish in principle between the two classes of cases. Possibly it would shut the door against fraud, if the rule were so ■changed as to prevent the creation of separate estates without writing. This, however, is a question we are not inclined to consider open’in this court.

.^Without intending to-disturb the principle above anxiounced, we are unwilling to enlarge the rule, so as to bring within its influence a class of cases much more numerous, and from which there would probably be reaped a much more abundant harvest of frauds and perjuries^

The judgment of the circuit court is affirmed.