Trimble v. Hensley, 10 Mo. 309

Trimble v. Hensley

10 Mo. 309 | Mo. | 1847

McBride, J.,

delivered the opinion of the Court.

Trimble and wife brought their action in detinue against Clark’s ad*311ministrator, to recover certain slaves. The evidence shows that Mrs. Trimble was Nancy Bailey, and whilst sole and unmarried, the mother of the slaves in controversy was devised to “ her and her heirs forever,” by her grand-aunt, Sarah Ann Garner, of Woodford County, Kentucky. At the date of the bequest, Nancy Bailey was of tender years, and the negro girl slave only about two years old. That subsequently, the girl come to the possession of Miss Bailey, and whilst in her possession, she intermarried with Thomas Clark, who acquired possession of the negro girl, and continued to enjoy that possession up to the time of his death, and the defendant, Hensley, holds as his administrator. That Clark left children by his said wife ; that Mrs. Clark intermarried with Trimble, the plaintiff, who now claims the negro woman and her increase under the bequest aforesaid.

The plaintiff then moved the Court for the following instruction: — “ If the jury believe from the evidence that Nancy- Trimble, one of the plaintiffs in this action, is the identical person to whom the bequest in said will was made, and that the negro slaves sued for are the same that were willed to her, then they shall find for plaintiffs. That said will gives to said Nancy Trimble a life-time estate in said negroes, free from the control of the administrator of her late husband, Thomas Clark, deceased,” which the Court refused, and thereupon the plaintiffs took a non suit, with leave to move to set the same aside, but the Court refusing to set aside the same, they have brought the case here by writ of error.

The question raised in the Court below by the instruction asked by the plaintiffs, and now submitted for the decision of this Court, is, what title was vested in Mrs. Trimble, by the will of her aunt, to the property in controversy. The use of the words u her and her heirs for ever,” is supposed to operate as a limitation upon her title. Such was certainly not the rule of the common law, for at one period of its history it was held that those words were absolutely necessary to create an estate in fee simple. But this particularity in language was never applied to the construction of wills, it being always considered sufficient to vest an absolute estate where it could be fairly deduced from the language of the testator that he so intended. 2 Blk. Com. 110, and following.

It is thought, however, that some aid can be derived from our statute concerning wills. R. C. 1845, p. 1085, §47. This section provides that where the words “heirs and assigns,” or “-heirs and assigns forever ” are omitted, and there is nothing in the will showing an intention on the part of the testator to limit the estate devised, it shall be considered as vesting an absolute estate in the devisee. If any legitimate argument is to *312be derived from the provisions of this section, it would appear to be against the ground assumed for the plaintiffs, for the statute presupposes the words quoted to have been necessary to create an estate in fee simple, and declares that they shall not hereafter be necessary. If the words were not in the will, and were important to give effect to the devise, then our statute might be appealed to, and would come in aid of the omission in the will.

The title, then, which Miss Bailey acquired to the. negro girl under her grand-aunt’s will, was an absolute, unconditional estate in fee simple, and on her marriage with Thomas Clark, he by virtue of his marital rights succeeded to all the estate she had in the negro in possession. When • Thomas Clark died, his widow was entitled only to a dower interest in those negroes, inasmuch as they constituted as much a part of his abso-lute estate as any other negroes he may have been possessed of at his death. See Griffith vs. Walker, 3 Mo. Reps, 191, 2nd ed.

The judgment of the Circuit Court is affirmed.