13 Ky. 177 | Ky. Ct. App. | 1823
Opinion of the Court.
George Thomas filed this bill, alleging that bis grandfather, Daniel White, had made his will in Virginia, and devised to his son, William White, the only child then living of his slave Betty, and the nest child that should be born, to his mother, Mary White, the slave being then pregnant, and that she had a child shortly afterwards, which was called Nursey; that said Marv White intermarried with William Thomas, and that when they went to housekeeping, they took with
The administrator answered, setting forth the personal estate as shown by the inventory and sale; and alleges that the complainant lived with Floyd, and was' kept by him, and that Floyd had the personal estate in his hands, or some of it; that after the complainant came of age, he, the administrator, at the pressing solicitations of the complainant and Floyd, acted as an arbitrator between them, and settled the accounts of the estate, and made an award, to which the complainant agreed in writing, and the estate was settled accordingly
Floyd, in his answer, denies the right of the. complainant’s father to, or that he ever had possession of Nursey, and contends that she was since given to his wife, the mother of the complainant. He insists that a.court of equity will not take jurisdiction of the case; and relies on the award set up by the administrator, and the statute of limitations.
The court below dismissed the hill as to all the defendants ; and the propriety of that decree is the question now presented for our decision.
We have no doubt, that as to the administrator, so far as the bill attempted to charge him with the personal estate, it was properly dismissed. After the complainant came of age, it appears that the defendant, Floyd,
After such an award and ratification thereof, there can he no doubt, that the right of Floyd to the balance of the personal estate, with whom the administrator accordingly settled it, was complete, unless the transaction could be impeached by mistake or fraud, which is not attempted. It is true, Floyd or the administrator had not the right of expending the principal of that cs-tate, for the maintenance and education of the complainant; but as the balance was small, it could not he more than an adequate compensation, which the complainant, then of mature age, had a right to give, and which he did give by ratifying the award. On this claim, then, he is entitled to no relief.
But the claim to Nursey and her family rests upon different grounds. It is true, this award is reli'ed on as a bar to the claim for her; but however broad the expressions used, both in the ^ward and the agreement,
The question, then, must rest on other points of de-fence, which we must investigate. We have no doubt, from the evidence, that Nursey, tbe mother of the other slaves, was the second child of Bett}r, contemplated by the devise in the will of Daniel White, grandfather of
The will of Daniel White, touching the disposition of the slaves in controversy, reads thus: “Moreover, my will and desire is, for my well beloved wife to have the use of negro woman Bett, while she raises three children fit to be raised without the breast; then the said negro Bett to return to my son, Daniel White, and his heirs. Item, ,1 give and bequeath to my son, William White, one of the children before mentioned is now born, named Dina; and if he lives to have an heir, if not, to be sold and equally divided between his sister, Mary White, and brother, George White, which I had by my last wife. Item, 1 give and bequeath to my daughter, Mary White” (now Mrs. Floyd,) “ before mentioned, the next child my negro Bett raises; to be divided in the same manner as the before mentioned, if she dies ■without heir. Item, I give and bequeath to my son, George White, the third child the said negro woman raises, to be divided among the survivor or survivors. Also, my desire is, that my beloved wife shall keep the said three ne-groes, until the survivors or survivor comes to the age of twenty-one. years,”
2. So far as we are able to ascertain tlie meaning of this will, the testator designed that these three slaves should pass, one to each of his respective children, William, George and Mary; and that by the word, “heir,” lie must have meant lineal descendants or children, and not collateral heirs; for such collaterals appear, both from the will and other evidence, to he numerous, he having had two wives; so that there was no probability of a lack of heirs of that character. He must also have intended, that if one or two of these his children should die without children, the survivors or survivor should hold the slaves. The custody of these slaves was, however, granted to his wife, until these three legatees should each of them arrive at the age of twenty-one years. It is somewhat doubtful, whether Mary, first the wife of Thomas, and now the wife of Floyd, at her first marriage had arrived to the age of twenty-one years; but, assuming the fact to he, that she really had arrived to that age, and that Thomas, father of the appellant, did, during the existence of the marriage relation, get into his possession the slave Nursey, in-which case she became absolutely his, and that cn his death
3. It is, however, clear, that the legal right to the slave, if she belonged to the estate of the decedent, was vested in the administrator, and that he could, by any appropriate legal remedy, have recovered her from Mrs. Thomas, or from Floyd, after his intermarriage “with Mrs. Thomás. Although she went into the possession of Mrs. Thomas by consent of the administrator, yet she did not hold the slave as bailee to the administrator, but as her own; therefore, there was not such amicable possession on the one hand, as would save the statute from attaching, or such disability in the administrator, as would bring him within any of the exceptions of the statute. The only obstacle which could be plausibly set up, to his maintaining and prosecuting a suit as administrator; for the slave, is, that as his letters,
5. The question then remains, lias be any recourse against the administrator, for this negligence in not taking in the slave as part of the estate, not keeping her when she was in his possession, and not prosecuting suit fir her until the bar had elapsed? No doubt, an administrator or executor may be made responsible for such losses, occasioned by negligence; but to charge him, it is necessary that he should have acted with bad faith, or with some wilful default or fraud, or gross negligence. See 4 John. Ch. Rep. 419.
As to the fact, that Thomas liad the possession of this slave in his lifetime, the administrator swears in his answer, and also in a deposition taken - by the appellant himself, that he never did know that Thomas, his intestate, had held the possession of the slave; and from any testimony in the cause, it does not appear that he ever had such knowledge.1' And it is very probable, from the distance that he resided from the intestate, and the short period of time which Thomas held her, that he might remain ignorant of the fact. We have, however, no doubt that such was the fact. We do not take this, however, from the testimony of the old lady, who is the widow of the testator and mother of Mrs. Floyd, and who has given two depositions in the cause, in one of which she so flatly contradicts wbat she had stated in the other, on this very point, that we can place no reliance on either. The testimony, however, of Mrs. Floyd, who was a competent witness against the administrator, and whose deposition he took himself, and caused to be read against the objection of the opposite
Nursey.wa,s. the child bequeathed by the will to Ms .sister Mary, after she, arrived at the age ^f twenty-onj^. years,..and in the mean time directed to remain withhfiá% mother,. He also well knew of the marriage-of Thorn-as,-bis intestate, with his sister. -It may,, then, be uEg-■ed, that by law Mrs. Thomas had a vested right under will, to the slave, which, by the marriage,.so vested in-her husband, that, the right, on his death, would not survive to her, notwithstanding he never obtained possession of her, because tbe particular estate was not .determined; and that his administrator, was bound- to know the law, and must be presumed to have known it, and therefore he is inexcusable for not asserting the claim, and thereby saving the slave. This is the strongest attitude in which the case can be placed against the administrator, supposing, as we have done, that he was ignorant of his intestate’s possession.
It must he admitted to be a correct maxim, at least in a criminal case, that every intelligent man is presumed to-know the law; and on no other principle could society well exist or be governed. We yet, however, well'know, that its principles are frequently so abstruse and hard to be ascertained, as to escape the ken .of the most enlightened lawyers, and that they may be frequently convicted of palpable mistakes, in dealing in, and practising upon its principles, when it would be’cruel and unjust to impute to them such gross neg-iigepqe or impurity of motive, as to make even them responsible for culpable neglect or fraudulent intention. if such as they, ousht to be excused forsuch blun
Whether, as the title to this slave was vested in Mrs» Thomas, now Mrs. Floyd, before her marriage, subject to the particular estate reserved to her mother, it would so vest in her husband, on the marriage, as to descend, at his death, to his representatives; or whether it would survive to the wife, is a question on which wre do not now feel ourselves bound to express any decided opinion. We will, however, say, that it is one which, with regard to slave property, has never been directly settled by any solemn adjudication in this country. And the appellate court #of Virginia, in the case oi Wallace vs. Taliafero, 2 Call 447, has decided,* after elaborate argument and solemn deliberation, with some division among the members of that court, that even in a case where the right of the wife accrued during coverture, which is stronger than the present, the right survived to the wife, if the question is thus doubtful, or rather has been thus decided against the appellant, by a tribunal of such high authority in the state where this right first accrued, ’ if it accrued at all, surely the administrator may be acquitted of mal-administration in neglecting to contend for it.
Add to this, that it is in proof that a strong belief existed in the family, that this slave did not pass by the will, because she was not born at the time of making the wall, owing to the advice of a lawyer in that country to that effect. And although rve have come to a different conclusion, yet it is a question not free from doubt or difficulty, increased by the barrenness of authority.
Upon the whole, then, we conceive that the appellant lias not made out such a case of mal-conduct against the administrator, as to subject him to the value of these slaves; and the appellant, admitting the law to have been once in his favor, has met with what is not unusual — a loss of property, by hot, seeking it in time, or because the title thereto rvas not well understood.
The decree must, therefore; be affirmed with costs»