| Mo. | Jul 15, 1862
delivered the opinion of the court.
Sarah Tucker, widow of Alexander Tucker, brought this suit against the children of Alexander Tucker, to have certain deeds of conveyance of slaves, made by Alexander Tucker to his children, declared void as to her, being in fraud of her rights of dower. The deeds were made by Alexander Tucker shortly before his death and whilst in feeble health, and he thereby retained the right to possess and use the slaves during his life.
The court below directed two issues to be tried by a jury, as follows:
1. Were the deeds, mentioned in the petition of the plaintiff, or any one of them, made to defraud the plaintiff of her dower in said slaves, or not ?
2. Did the defendants collude with the deceased, or in consequence of the weak state of his mind did they exercise an undue influence and control over him, and thereby procure the making of said deeds of gift, or any one of them, in their favor, for the purpose of defrauding the plaintiff of her dower?
The jury found the first issue for the plaintiff, and the second for the defendant. Upon those findings the court
During the trial the defendants offered to prove, by a witness, that Alexander Tucker, at the time of the execution of the deeds to his children, stated that his intention in making the deeds was to make a provision for his children, and to divide his slaves amongst them, so that he would know to whom they would belong; and that ho had no intention of defeating his wife’s rights of dower in his estate; and that he would have ample estate for her benefit left. The court, upon the objection of the plaintiff, excluded this testimony, of which the defendants complain as error.
The intention of the maker of the deeds was the direct subject of examination, and the presumption was (in favor of the defendants) that the deeds were honestly made, and not for the purpose of defrauding the plaintiff. We are unable to perceive how the evidence offered could have strengthened this presumption. Had the declarations been incorporated in the deeds themselves, they would have been no stronger than they were. No assertions or protestations of the maker of the deeds, of their honest intent, can be stronger than those implied in his execution of the deed's; and, therefore, his declarations were properly excluded.
Objection is here made to the form in which the issues are stated; but as no such objection was made in the court below, it will not be regarded.
Finally, it is objected, that notwithstanding the finding of the first issue for the plaintiff, judgment should have been rendered for the defendant.
We consider that point settled by this court in this case when heretofore in this court, (29 Mo. 350" court="Mo." date_filed="1860-01-15" href="https://app.midpage.ai/document/tucker-v-tucker-8000729?utm_source=webapp" opinion_id="8000729">29 Mo. 350,) and the cases of Davis v. Davis, 5 Mo. 189, and Stone v. Stone, 18 Mo. 389" court="Mo." date_filed="1853-07-15" href="https://app.midpage.ai/document/stone-v-stone-7999121?utm_source=webapp" opinion_id="7999121">18 Mo. 389.
The judgment of the court below is affirmed.