White v. Bartlett

34 Tex. 399 | Tex. | 1871

Ogden, J.

This cause was submitted at a former term, and' an opinion in the case was then prepared, but before the cause was decided, it was discovered that some of the parties were dead. The submission was withdrawn to make the representatives of the deceased parties. This has been done, and the cause is now again submitted for decision. The record has been re-examined, and as we now fully concur in the opinion of the learned judge who prepared; the opinion when the cause was previously submitted, we shall take the liberty of adopting the same, with but slight alterar tion, as the opinion of the court.

This suit was brought in the year 1858, for the recovery of certain slaves, or their value, by the appellees against the appellant. A trial was had at the Spring term, 1860, and a judgment rendered in favor of the plaintiffs for the sum of $12,825. The petition set forth, substantially, that, by a legacy in the will of Abner Bartlett, of the State of Georgia, which will was duly admitted to record by a court in that State having jurisdiction in probate matters, a contingent estate in the slaves was bequeathed to George T. Bartlett, a son of the testator, in trust for the wife of the appellant during her life, with a remainder to her issue living at the time of her death; and upon failure of such issue surviving her, then with a limitation over to the five sons of the testator, or such of them and their descendants as might be living at the happening of this contingency. The testamentary trustee declined to act, and 'upon the petition of the wife of appellant, setting forth the nature, character and condition of the legacy, and the refusal of the trustee to assume the trust, the proper court of Georgia, by a decree, substituted the appellant in his stead, who executed the required bond for the faithful performance of the trust. The trustee thus appointed and the cestui que trust were then domiciled in the State of Texas, whither the slaves were immediately transferred, excepting a portion of them, who had previously been carried thither about two years anterior to the death of the testator, under a loan acknowledged in a written and recorded instrument by the appellant. These slaves under the. loan were embraced in the will, and constituted a part of the legacy. The wife of the appellant, who was the cestui que trust, died in the year 1857, without issue living ; and this suit was brought against her husband and trustee in 1858. The defense set up against the cause of action was an adverse possession and the statute of limitations.

The errors assigned .are so vague and indefinite that the court has been compelled to encounter all the labor and trouble which assignments were intended to obviate. The only specific assignment is as to the admissibility of a portion of the evidence. The admission of the will of the testator as evidence was objected to, because it was not authenticated, either according to the act of Congress, or the law of the State of Texas. But considering that the will may not have been properly' admitted, still the record acts and admissions of the appellant in the proceedings of the court of Georgia, substituting him as trustee, and his receipt for the slaves, all of which were duly authenticated, were amply suf- ' ficient to sustain the verdict of the jury. Until the death of the wife, in 1857, there could be no adverse holding against the party entitled to the remainder. The holding during her life was amicable, and perfectly consistent with both the estate for life and in remainder. Not more than a year had elapsed after her death, before this suit was instituted, and no adverse holding could take place till her death. The appellees therefore had a good cause of action when they brought their suit, and upon the trial clearly established, by proof, their right to the property or its value. We think there is no error in the judgment, and it is affirmed.

Affirmed.