Sale v. Saunders

| Miss. Ct. App. | Jan 15, 1852

Mr. Justice Yerger

delivered the opinion of the court.

In the year 1831, Joseph Saunders, who resided in the State of Alabama, made his last will and testament, which was duly probated in that State, and among other bequests contained in it, was one of a slave, in the following words: “ I give and bequeathe unto James E. Saunders, as trustee of my said daughter, Lucy Fenner, and her husband, to be enjoyed and used by them during their natural lives, free from any liability for the debts of her said husband, and by the survivor of them during his or her natural life,” &c. The slave so bequeathed was sold in the State of Alabama during the lifetime of Fenner, as his property, by virtue of an execution on a judgment against him, and the plaintiff in error became the purchaser. Fenner, the husband, died, and this suit was brought by Saunders, the trustee, to recover the slave, for the use of Mrs. Fenner, who has survived her husband, and a judgment rendered in his favor. It is insisted by the counsel for the,plaintiff in error, that, by the decisions of the Supreme Court of Alabama, Fenner,.the husband, had not only an estate in the slave during the joint lives of himself and wife, which could be sold by an execution at law, but also an estate during the lifetime of his wife, in the event of her surviving him, equally subject to the payment of his debts by execution at lawand that the plaintiff in error, by virtue of the sale made in this case, has become the owner of that estate, and can hold the slave by virtue thereof against the surviving wife or her trustee. As this will, and the sale, by virtue of which the plaintiff in error claims, were made in Alabama, of course the rights of the parties to the slave must depend upon the laws of that State.

Upon examining the cases to which counsel have referred us, we find that the Supreme Court of Alabama has held that the conveyance of a slave, “in trust, for the joint use of the husband and wife, for their lives, remainder to the survivor, and remainder in fee to the issue of the marriage,” vests in the husband an estate for life, which may be sold at law by virtue of an execution against him. 7 Alabama R. 589; 2 Porter, R. 463.

It may be remarked, that the construction thus given by the courts of that State to such conveyances, is opposed to the rule established by the Supreme Court of Virginia in regard to them. It has been held by the latter court in several cases, that by “ a conveyance of slaves to the joint use of the husband and wife during their livés, with remainder to the survivor,” the husband and wife each become seized of the entirety, and that the wife has such an interest in the estate, that the husband cannot dispose of it without her consent, nor-can it be sold for the debts of her husband. 5 Munf. R. 86; 4 Leigh, R. 550.

It is also opposed to the common law doctrine in relation to conveyances of real estate, by similar words, the rule in regard to which has been stated by Chancellor Kent in the following language: “ The same words of conveyance which would make two other persons joint tenants, will make the husband and wife tenants of the entirety. Both are seized of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole.” 5 Johns. Ch. R. 427. See also 2 Black. Comm. 133; 2 Vernon, R. 120; 7 Yerger, R. 332.

As we are called upon, however, in this case, to give a construction to a will made in Alabama, in relation to property in that State, at the testator’s death, we must give to it that construction which would be given to it by the courts of Alabama; and, without intending to express any opinion as to the rights which a husband would acquire under a will or conveyance of property in this State, containing similar language to that in the will before us, we do not doubt that in Alabama the husband had an estate for life in the slave subject to sale by execution at law against him.

This brings us to the consideration of the second question presented by this record. Can the wife, by virtue of her survi-vorship, maintain an action for the slave against a purchaser at execution sale against the husband ? We think she can. We have carefully examined the cases in Alabama cited for the plaintiff in error, but do not find in them, or in any other decision in that State, that the contingent estate limited to the wife in the event of her survivorship, was subject to salé by the husband without the consent of the wife, or by the creditors of the husband. In the case of Hale et al. v. Stone, 14 Alabama R. 803, and chiefly relied upon by counsel, the court merely decide, that the intervention of a trustee will not have the effect, in the absence of a declared intention to exclude the husband, to vest in the wife a separate estate; and, “if the wife, by the terms of the gift, be entitled to the usufruct in the property, and the same comes to the possession of the husband, the wife’s interest, whether for years, for life, or in fee, may be sold under execution at law against him.” This language merely declares the old rule on this subject, and the case comes very far short of deciding that the reversionary interest of the wife in personal property, or an estate limited to her upon a condition which could not take effect until the death of the husband, was subject to sale for the debts of the husband.

It is true, that, by the rule's of the common law, the rights of the wife were so completely merged in the husband, that he became the owner of all the personal property she had at the date of the marriage or subsequently acquired, and also of such choses in action belonging to her as he might have reduced to possession; but, in regard to such choses in action as were not reduced to possession, the same survived to the wife. Now, in regard to estates granted to the wife upon a contingency that could not happen during the lifetime of the husband, it is clear, inasmuch as no title or estate could vest in the wife until his decease, that she had no property or right in action capable of being reduced to possession by him, and that he could not, therefore, have any interest or property in such contingent estates which his creditors could reach. Certainly no legal estate could vest in him- in right of his wife, inasmuch as none could vest in her until the happening of a contingency which could not take place until after or at the period of his decease.

A distinguished law writer has remarked, in relation to the wife’s right of survivorship in reversionary estates, that “ all the decisions deny the absolute. power of the husband to bar the rights of the wife by an assignment for valuable consideration; ” and in many of the decisions, his power to do so, even with the consent of the wife, has been denied. Clancy on Rights of Husband and Wife, 144-146.

If the husband, without the consent of the wife, could not dispose of her interests in reversion, so as to bar her right of -sur-vivorship, a fortiori a creditor of the husband, by means of a forced sale at execution, could not acquire any other right or interest than a voluntary sale' by the husband would convey.

These cases seem to be based upon the principle, that until these estates in reversion vested in the wife, there was no interest or property therein capable-of being, reduced into possession by the husband; and that unless he could reduce them into possession, he could do no act, without consent of the wife, which would bar her right by survivorship. Upon this point,' the case of Hornsby v. Lee et al., 2 Madd. Ch. Cas. 16, the decision of the Master of the Rolls will be found conclusive, and his reasoning clear and satisfactory. In that case the husband and wife made an assignment of the wife’s reversionary interest in some government stock. After the death of the hnsband and of the person on whose death the wife was to take, the wife claimed the stocks as survivor against the assignee of her husband and herself; and it was held she was entitled to recover, because she had not such an interest in the stocks as could have been reduced into possession, and, therefore, not such an interest or estate as could be assigned by the husband so as to bar her. right.

The principle decided there is fully applicable to the case at bar. For, while it is true that in the case cited the interest of the wife was a reversion in choses in action, and in the case before us it is an estate in a slave, yet it is an estate dependent on a condition which cannot take place till the death of the husband, and, therefore, a right or interest which it is impossible that he could reduce to possession.

But, if it were conceded that the husband had acquired a title by virtue of his marital rights, which he could sell and dispose of, it does not follow that it is such an estate as could be sold by virtue of an execution at law against him. Indeed, we incline very much to the opinion that it could not. In Tennessee, where this question has arisen, it has been held, that “ a remainder in slaves cannot be levied on and sold by execution at law.” Allen v. Scurry, 1 Yerger, 36. In that case, the court said, “ the remainder or reversion of a live chattel is a pure contingency, a bare possibility whether it will ever exist or not. On the part of the purchaser it is a perfect hazard; the thing acquired may be of some value, or it may be of hone; and a sale under such circumstances would be a gaming transaction, subversive of good morals, ruinous in its consequences, and injurious to the rights of other creditors, by the sacrifice of that fund which, in proper time, might be competent to the satisfaction of all their claims;”, and hence the court concludes, that a remainder in a slave being a mere contingent or possible estate, incapable of seizure by the sheriff, and, in this respect, like a chose in action, is not subject to sale by execution, according to the principles of the common law.

If the principle of this decision be applied to the case before us, it is obvious, that any estate or interest which the husband could have in the remainder limited to his wife and dependent upon her survivorship, was entirely uncertain and contingent, a bare possibility, which might or might not be fixed at a future day, an incorporeal and intangible estate, incapable of seizure by the sheriff, and, therefore, by the rules of the common law, not a subject of levy arid sale. We see no error in the judgment below.

Let the judgment be affirmed.