46 Ky. 49 | Ky. Ct. App. | 1846
delivered the opinion of the ,Court.
'The plaintiff brought an action of trover for a female •slave, against the defendants, and after two trials before a jury and a failure to find a verdict upon issues joined, the •case was submitted to the Court upon the following agreed facts, in substance: that the plaintiff was indicted, tried, •convicted, and sentenced to a confinement in the Penitentiary for two years, for felony; -that he was pardoned and discharged before the expiration of his term; but ■before his pardon and discharge, one of his sons sold the .slave in question, which .before his .conviction was .bis .property, to the defendants. Upon these agreed facts the parties submitted the case to the judgment and decision •of the Court, upon the following terms.: that if the Court -should be of opinion that the law was for the defendant, .judgment was to be rendered for him, and if for the plaintiff, then the facts were to be submitted to a jury upon all 'the grounds of defence relied.on by the defendants.
The Court gave judgment against the .plaintiff, and he' has appealed to this Court.
The case involves the construction of the 20th section of the 10th article of the constitution of Kentucky, and of the two acts of the Legislature, the one passed in
If these sections stood alone and unaltered by the provisions of the statute of 1802, they might properly be construed as a surrender of the forfeiture, to which the Commonwealth was entitled during the life of the offender, to the wife and children or those who would be entitled to the estate in case of his dying intestate, and as well in cases where the punishment of the offence was a confinement for a term of years in the Penitentiary, as when the punishment was death.
But the Legislature takes up the subject, in the fifth section of the act of 1802, supra, and provides a different mode for the disposition of the property of a convict confined for a term of years, variant from and inconsistent with the disposition of it, made by the sections quoted of
So with respect to the minor children, guardians may b'e appointed for them, who are to be governed by the act of 1797, by which act they have no power to sell their estate, especially lands and slaves, but to apply the issues and profits only to their support, and if it will not suffice, to bind them out as apprentices. And the power is given to the convict in the Penitentiary, to dispose of his estate by will, in the same manner as if he or she had never been convicted; and on his discharge his estate, or so much thereof as has not been legally disposed of, shall revert to him again. If the title to the estate passed to the wife and children during the life of the convict, how could he devise it by will? He might, it is true, as decided by this Court in the case of Rankins’ heirs vs Ran-dins' executors, (6 Monroe, 535,) devise the remainder of the fee, after his death, but such power of devise can scarcely be regarded as a power to devise his or her estate in the same manner as if he or she had never been convicted. And how can the estate revert to the convict upon his discharge, if it was intended to pass to the wife and children during his life? These clauses are opposed to the idea that the estate and title was to pass and be vest, ed in the wife and children, or others, as in the case of dying intestate, as directed by the sections quoted in the act of 1797, and clearly indicate an intention on the part of the Legislature, to permit all right and title in the estate, to remain with the convict, subject to the payment of his debts and the use and support of the wife and children during his confinement, and no longer.
But it is insisted that as so much of the estate only is to revert to him, as has not been legally disposed of, and
The judgment of the Circuit Court is, therefore, reversed, and cause remanded, that a new trial may be granted and further proceedings had.