Opinion
June Term, 1859.
Where a widow who, with an only daughter was the next of kin, administered on her husband's estate, and as a part thereof, held a certain slave for six years, and then, on the occasion of a second marriage, conveyed in her individual name such slave to a trustee in trust for herself and her daughter, it was held that such conveyance was conclusive to show that she ceased to hold the property as administratrix — that this act was a full administration as to it, and that after her death, an administrator de bonis non on her husband's estate, took nothing in said slave.
ACTION of TROVER, tried before HEATH, J., at the last Spring Term of New-Hanover Superior Court.
E. G. Haywood, for the plaintiff.
W. A. Wright, for the defendant.
The action was brought for the conversion of a slave named Jim. It was in evidence that John N. Brown died intestate in the spring of 1831, possessed of a negro girl named Katy; that he left, him surviving, his widow Emma Brown and an infant daughter about two years old, who, afterwards in 1847 or 8, and before she came of age, intermarried with the plaintiff; that at the death of John Brown, the slave Katy remained in the possession of his widow, who in June, 1831, administered on his estate, and in December following filed an inventory, in which Katy was returned as part of the estate; that the slave Katy continued in the possession of Mrs. Brown until the year 1837, when she was married to one Isham Peterson, who took possession of the said slave, and (as he testified) afterwards held her in right of his wife, and as her property. Some few years after the marriage of Peterson with Mrs. Brown, Katy gave birth to the boy Jim, who continued in the possession of Peterson until the year, 1854, when he mortgaged him to one Savage, who afterwards sold him under the authority of the mortgage, to one Du Pre, and in September, 1856, he was sold by the Sheriff under execution against the said Du Pre to the defendant Nixon. Mrs. Peterson died in 1850, and in December, 1856, the plaintiff administered de bonis non on the estate of John N. Brown, and after demanding Jim of the defendant, brought this action in 1857.
It was further in evidence, that in contemplation of the marriage about to take place between her and Peterson in 1837, Mrs. Brown conveyed the slave Katy to a trustee, one Hill, by a deed, in which she was joined by the said Peterson, and by the said trustee. This deed recites the marriage about to take place, and that the purpose was to secure certain slaves, Katy among them, to Mrs. Brown and her daughter, Athalia, and conveys the same to the said trustee upon trust that, during the minority of the daughter, the trustee is to permit the said Emma, the mother, "to receive the profits of the said slaves, and the same to use at her sole will and pleasure," and that the same shall not be "under the control or at the disposal of the said Isham Peterson, or be in any manner liable for his debts," and after the marriage, or arrival at full age of the daughter, the deed provides that certain of the slaves conveyed, not including Katy, shall be assigned and set over to the said daughter, and in the event of the daughter's dying, that then the said trustee shall hold the said property in trust for Mrs. Peterson with a power in her to dispose of them by will.
The plaintiff's counsel moved the court to instruct the jury that the legal effect and operation of the deed of marriage settlement, was to convey, not the legal title of the slave Katy, but only Mrs. Brown's equitable interest in her as one of the distributees of her first husband, and that she having taken possession of the slave as administratrix, it was not competent for her nor her husband, Peterson, after their marriage, by any act or declaration of theirs, to change the character of that possession. And if it were not so, yet, under the circumstances of the case, the other distributee of Brown being a young child, at his death, and continuing a minor at her marriage, in 1857 or 8, and there being no evidence that she had ever had a guardian, no presumption of a settlement and distribution of Brown's estate could arise, and that Mrs. Brown. and after her marriage, her husband, Peterson, must be taken to have held possession of Katy and Jim in her right of administratrix, and that consequently, the legal title was in the plaintiff.
His Honor declined giving these instructions, but charged the jury that if Mrs. Brown ever held her interest in Jim for one moment as next of kin, the plaintiff was not entitled to recover; and to that end they might consider that only one return of administratrix was shown; that she had held the mother for about six years prior to the marriage, and had conveyed her on the occasion of the marriage (Jim being born afterwards) by an absolute bill of sale in her individual name. And he further charged that if she conveyed the mother in her individual name, and not as administratrix, and she then had title as administratrix, such title would pass at law, though she held as administratrix, and that the plaintiff could not recover. Plaintiff's counsel excepted. Verdict and judgment for the defendant. Appeal by the plaintiff.
This Court concurs in the conclusion of his Honor, that the plaintiff was not entitled to recover.
The plaintiff acquired no title as administrator de bonis non, for the reason that Mrs. Peterson, who was administratrix of her former husband, Brown, had completed the administration in respect to Katy, the mother of the slave in controversy: so, that at her death, there was nothing left to be administered. The deed to Hill divested her title, and in any point of view, was an administration of the property conveyed by it. The purpose seems to have been to make a division between her daughter and herself, and to secure her one part for her separate use. Whether the deed was effectual for the purpose of making a division, is a question that cannot be raised in this Court. It certainly was effectual to divest her title as administratrix, and amounted to "an assent" or delivery to herself, and daughter as distributees, and had the same legal effect as the assent of an executor, according to the reasoning in Hailes v. Ingram, 6 Ired. EQ. 477.
This ground is yielded in the learned argument filed by Mr. Haywood, and he falls back on the position that the action can be maintained in the plaintiff's own right on the authority of Cotton v. Davis, 3 Jones' Rep. 355. There are two objections — either of which makes this position untenable.
1st. Supposing the legal effect of the deed to Hill was an assent or delivery by the administratrix to herself and daughter, as distributees, according to the division made thereby, the right to repudiate that division, and claim in opposition to it, was a chose in action of the daughter, which the plaintiff, who is her husband, cannot assert in an action to which she is not a party.
2ndly. Such assent or delivery vested the title in the mother and daughter, as tenants in common, and, supposing the plaintiff to have the two-thirds of the daughter, and the dedefendant, [defendant] claiming under Peterson, to have the one-third of the mother, and to be tenants in common, it is settled that trover will not lie by one tenant in common, against a co-tenant, unless the property is destroyed, either actually, or constructively, as where it is carried to parts unknown, or its identity is destroyed. There is no error.
PER CURIAM. Judgment affirmed.