18 N.C. 284 | N.C. | 1835
1st. The loan or gift for life by Ann Torrence to her daughter, vested the entire interest in her husband. For, although McKnight refused to receive the slaves himself, yet, as he assented to the loan to the wife for life, the slaves by operation of law became his property.
2d. The award of the slaves to the wife for life, acquiesced in by the executors, vested the entire interest in the husband, free from the idea of a gift or loan; and also from the dissent of the husband. And the judge should have so charged the jury, and not have left it to them to decide from the evidence, what should be the effect of the award. An award in pais acquiesced in, is an agreement executed, or a bargain, and although by parol, would, before the act of 1806, (Rev. ch. 711,) have vested the title to slaves. No specific instruction was prayed as to the effect of the will, yet still the judge left it as a circumstance to the jury. As to the award, nothing was submitted to the arbitrators but simply to ascertain the intention of the mother with respect to her daughter's possession of the slaves. They were not authorised to make any order for carrying the intention into effect. The award did not affect, nor design to affect the title, but only declared what was the old lady's meaning with respect to the possession.
Pearson, in reply. — The construction upon the words of an instrument, and words proved by parol must be the same in legal effect. The former construction as to the difference between the use of a thing and the thing itself, was founded upon the very same reasons, as the distinction now taken, and as the one has been abolished, the other cannot hold.
The award was that the wife "should have" the slaves during her life; and the award itself is more certain than the testimony of witnesses as to what was intended by it. — As no specific instructions appear to have been asked by either party on the trial, the defendant is not entitled to a new trial, unless he can show that the jury was probably misled by the charge of the judge. Upon a fair construction of the charge, we think that it is not liable to this imputation. The main question in controversy was the intention with which Mrs. Torrence parted with, and Mrs. McKnight took the possession of the slaves. It was then the settled law that if a parent put personal property, into the possession of his daughter soon after her marriage, it should be presumed prima facie, that the property was given absolutely in advancement of the daughter, but that this presumption must yield to proof that the property was only lent. Carter's Executors v. Rutland, 1 Hay. Rep. 97.Killingsworth v. Zollicoffer, 2 Hay. Rep. 72. Robinson v. Devane, Ibid. 154. Much evidence was offered tending to show that the negroes in question had not been given, but lent. And the Judge was perfectly correct in leaving this part of the controversy *289 to the jury, with directions to decide, upon all the evidence, whether it was a loan or a gift. If a loan, the law pronounced its effect to be that of a bailment, revocable at the will of the bailor. We need not perplex ourselves with the question, what interpretation it would put upon the case proposed, of a loan expressly declared to be for life. No witness testifies to any precise formula which was used in the transaction, so as to render it necessary to determine upon its technical operation. The transaction was informal, and the proper inquiry was to ascertain from the acts and declarations of the parties, and all the other attending circumstances, whether it was thereby intended to transfer any legal dominion in the slaves themselves, or only to permit them to be held free from hire, until the owner should think proper to redemand them.
It is insisted, however, by the defendant, that whatever might have been the understanding or contract when the negroes were put into Mrs. McKnight's possession, the award of the arbitrators gave a legal title for life, and that this, in the case of a chattel, constitutes the entire dominion therein; and that therefore the charge of the Judge was on this point erroneous. Before we examine whether such would be the operation of an award in those terms, it is well to inquire what were the instructions in relation to the award. The statement of his Honor's opinion on this part of the case, is given so briefly as to render it somewhat obscure. But it was the duty of the party who excepts to the opinion, to see that it should be so spread upon the record, as to enable us to determine whether in truth it bears the interpretation which he affixes to it. We are not permitted to doubt but that it would have been stated more fully, had it been desired by the defendant, so as to present distinctly, the views which the Judge intended to convey. Examining the opinion as expressed, in connection with the statement of facts to which it applies, we understand it to be free from this objection. It had been testified that a short time before Mrs. Torrence died, she sent for John Harris to write her will, and despatched the witness to McKnight to see him about the negroes, in order that the disposition of them might be settled in her will. *290 He would not have them as property, and the will was silent about them. After Mrs. Torrence's death, the executor's demanded the immediate possession, which McKnight was willing to surrender, but his wife objected. It was then agreed to leave it to men to say "what Mrs. Torrence intended should be done with the negroes." There was no written submission, and therefore it is difficult to say what was the its definite purpose; whether the parties meant that the arbitrators should pass upon the question oflegal ownership or of equitable title, or only to ascertain what arrangement among the children of the deceased would best accord with the wishes of their mother. The referees called on John Harris; and after hearing him they decided (said the witness) "that it was the old lady'swish for Mrs. McKnight to have them during her life, and she should have them accordingly;" and McKnight remarked, that if his wife were dead they might take them immediately. This was not in writing; it was made thirty years before the trial, and it is impossible to suppose that the precise words of it could be stated. In reference to this representation of facts, the Judge remarked, that it seemed "that it was submitted, and that the arbitrators decided, that as it was the old lady's wish that she should hold the negroes for life, they therefore awarded them for life; but still the jury would decide from the evidence of the submission, whether it was the loan for life or the gift for life." That is to say, as we believe it plainly imports, there is evidence of a submission to arbitrators in regard to these negroes now alleged by the defendant to have been given, but insisted always by the plaintiffs to have been only lent. There is evidence of a determination by the referees that Mrs. Torrence wished her daughter Betsey to enjoy them during life, and that therefore she ought to do so; but upon the evidence it remains for the jury to say whether the arbitrators decided more than that the negroes had been lent; that Mrs. Torrence did not wish the loan countermanded during Betsey's life; and that therefore she should be permitted, by those interested in the estate, to hold them as lent, so long as she lived; or whether they decided that the negroes had been given for life, and that therefore she should hold *291 them for life. If they put the former construction on the award, they were advised to find for the plaintiffs; but if the latter, then to find for the defendant. Of this advice, it seems to us, the defendant has no right to complain.
Some objections were taken below to the evidence, which have not been insisted on here, and which we think were properly waived.
PER CURIAM. Judgment affirmed.
