source: Caselaw Access Project

author: COLLIER, C. J.

license: Public Domain

text:
    MARR, OX’X, vs. M’CULLOUGH, adm’r.
    1, Where a legacy is given generally, without appointing the time for its payment, it vests immediately upon the testator’s death, though it be not demandable until the expiration of the period defined by law, after the grant of letters testamentary, and if the legatee die before he is allowed to adopt coercive measures with a view to its recovery, his personal representative will be entitled to the legacy.
    g. Legacies payable after the death of the testator, are either vested or contingent, and where the testator annexes time to the payment only, the legacy will be vested, but if to the gift itself, it will be contingent.
    3. Where it appears from the construction of the whole will, that the testator intended the legacy should not vest until the timo proscribed for the payment, and when the event upon which payment is directed is uncertain, — there, the legacy will not be vested upon the maxim, dies incertus in testar-mentó conditionem facit.

    4, Where a legacy is contingent, no interest will pass to the executors or administrators of the legatee, if he dio before the period arrive for the legacy to vest.

    It has been often held, that the gift of a personal legacy, to bs paid upon a future uncertain event, with the direction to pay to the legatee the entire interest accruing in the mean time, sufficiently indicates that it was not the testator’s intention to make the legacy conditional.
    6. Yet it has been said, that a legacy payable at a future time, will not vest where less than the whole amount of interest is ordered to be paid annually, or where it is to be paid out of another fund, or where the legacy is given ont of real estate.
    7. But if from a view of the whole will, it appear, that the testator intended to make the interest a subject of bequest until a future period, and the principal was then for the first time to be taken out from the residuum of the estate, and paid to the legatee, the legacy does not vest, — the gift of the interest and principal is separate and distinct, and the time of the payment of the principal is of the essence of the gift.

    g. Seats, where no intention can be gathered from the will, to countervail the legal inference that the gift of the interest vests the principal.
    9. Where the corpns of a legacy was given to the executors as trustees, with a postponement of the payment to an indefinite period, depending upon an exercise of their discretion, with the direction that the interest should be paid in the meantime, the legacy, upon the authority of precedent, as well as upon principio, vested in the legatee, immediately on the death of the testator.

      j o. And an administrator does not occupy a more favorable position in regard to the payment of a legacy, thus bequeathed, than his intestate (the legatee) did, and cannot therefore be allowed to urge an objection to the payment to the intestate while living, which would not have been available, if made by the intestate himself.
    11. So, where a legatee in his life time, had received the full amount of such a legacy, the discretion of the executor exercised in the payment, cannot be impeached by the personal representative of the legatee.
    Error to the Circuit Court of Tuscaloosa county exercising Chancery jurisdiction.
    Bill to charge an executor for a legacy alleged to have been improvidently paid.
    On the first day of’ March, eighteen hundred and thirty-four, James McCullough, of the county aforesaid, administrator, Ae bonis non, of the estate of Benjamin Franklin Spencer, deceased, who died intestate, in ■ said county, on the first day of February, eighteen hundred and thirty, came, and filed his bill against Nancy Gr. Marr, executrix of the last will and testament of William M. Marr, deceased, which bill stated : That, on the seventh day of September, eighteen hundred and twenty-six, John Spencer,senior, of the said county of Tuscaloosa, made his last aucl will aud testament, in writing, and which was duly signed and published by him, and attested in such manner as by law required for bequeathing real and personal estate, and appointed William M. Marr, Edward B. Elliott, and Thompson Windham, executors of his said last will and testament: That the testator, on the first clay of October, in the year last aforesaid, died, possessed of a very large real and personal estate, and the will was duly proved in the Orphans’ court of said county, and the executors aforesaid took upon themselves the execution: That Windham subsequently resigned his trust as executor, when the whole duties of the execution of the will, devolved on said Marr and said Elliot: That the ninth item of the will bequeathed to the testator’s son, Benjamin Franklin Spencer, (intestate of the complainant,) one thousand dollars, to remain in the hands of the executors as trustees, for his benefit, the interest of the same to be paid yearly to him by the executors, but the executors were charged never to pay to the said son, any part of the thousand dollars, until they should be thoroughly satisfied that he would prudently manage the same, &c.: That by the twelfth item of said last will and testament, after directing that all his just debts, and the expenses of settling his estate, be first paid, — the said testator willed as follows: The balance of his estate not specially bequeathed, it was his will should be sold by the executors, upon a credit of twelve months, taking bond with sufficient security, reserving an acre of land, including the grave yard on the plantation on which the testator lived, and the moneys arising from the sale of all the personal and real estate not bequeathed, should be applied to the payment of the monied legacies; and after satisfying the same, one hundred dollars was appropriated to enclose the grave yard ; the remaining part of the estate, after paying debts and expenses, and the special bequests designated, were to be divided as follows, to wit: 1. Henry W. Spencer and Sarah Jane Spencer, children of John Spencer, were to have one eighth, to be kept and loaned out upon interest, until either of them might marry, or arrive at lull age, then the said eighth part to be equally divided between them. After several other bequests of the residuary part of the estate, the said will proceeded, as follows, to wit: “ likewise to the said executors, in trust for Benjamin Franklin Spencer, one eighth, to be managed as the bequest heretofore made for his benefit.”
    The bill then charged, that the legacy of one thousand dollars, by the said last will and. testament given to complainant’s intestate, and the said one eighth part of the residuum of the estate of the testator, so as afore said given to the executors, in trust for the benefit of complainant’s intestate, were so given by reason of the prodigal and intemperate habits of said legatee, to prevent any imprudent waste of the legacies, and that the yearly interest arising from them might afford to the legatee a comfortable and suitable maintenance, until he should reform and refrain from his prodigal and intemperate habits.
    The bill further stated, that the executors, Marr and Elliot, continued to perform the duties and trust in them reposed by the will, until the fourteenth day of January, eighteen hundred and thirty-one, when a final settlement of the estate of the said testator was made, in the Orphans’ court of the county of Tuscaloosa, on which settlement a decree was made and signed by the judge of said court, by virtue of which decree, said Marr, executor as aforesaid, became and was bound to pay to said intestate of the complainant, the sum of twelve hundred and eighty-seven dol lars and twenty-five cents, according to the terms and conditions of the will, being a part of the legacies bequeathed to the said intestate.
    After the making of the said final settlement and decree as aforesaid, said Marr died, leaving a very large estate, both real and personal, and the said sum of twelve hundred and eighty-seven dollars and twenty-five cents, in said decree mentioned, remained in his hands at the time of his death. Before the death of said Marr, he made and published his last will and testament, by which his wife, Nancy G. Marr, the defendant, was appointed his sole executrix. After the death of Marr, the defendant caused his last will and testament to be proved according to law, in the Orphans’ court of said county, and took upon herself the burthen of the execution of said will, and so the complainant said, the said Nancy G. Marr, the defendant, the executrix as aforesaid, became chargeable with-the payment of that portion and amount of the legacies bequeathed to complainant’s intestate, by the will of his said father, the said John Spencer, senior, deceased, mentioned and specified iu said decree, and by the said decree directed to bo paid to the said intestate, according to the terms and conditions of the said last will and testament of said John Spencer,, senior, deceased, in the same manner as the said William M. Marr was, during his life time, and still would be, were he now living..
    After the death of the said William M. Marr, and after his will had been proved as aforesaid, to wit, on the first day of February, eighteen hundred and thirty-two, the said Benjamin Franklin.Spencer died, in the county of Tuscaloosa, aforesaid/intestate, leaving several brothers and sisters, his heirs at law, without having in any wise reformed his prodigal and intemperate habits, so as to have entitled himself, at any time, to the payment of the legacies so as aforesaid bequeathed to. him by his father’s will, or to have authorized and justified the said executors in the payment of the same, or any part thereof save only the le,gal interest annually accruing on the same, to which he was entitled yearly for his support. After the death of Benjamin Franklin Spencer, to wit, on the fourth day of February, eighteen hundred and thirty-three,, (none of the kindred of said Benjamin Franklin Spencer, or any of his creditors entitled to the administration of his estate, having applied for administra-tration thereof,) administration of all and singular, the goods and chattels, rights and credits, which were of the said Benjamin Franklin Spencer, deceased, at the time of his death, was committed to William Y. Glover, then and still sheriff of said county of Tuscaloosa, according to the statute in such case made and provided.
    Afterward, to wit, on the twentieth day of Febi'u-ary, in the year eighteen hundred and thirty-four, complainant, in right of his wife, Rebecca Jane, daughter of John Spencer, senior, deceased, and sister of the said Benjamin F. Spencer, deceased, entitled to a distributive share of the estate of the said Benjamin Franklin Spencer, obtained a revocation of the letters of administration, granted to the sheriff as aforesaid, and obtained a grant of the same from the County court, as administrator de bonis non, and qualified according to law, and the said sum of twelve hundred and eighty-seven dollars and twenty-five cents, being a portion and part of the legacies bequeathed, as aforesaid, to complainant’s intestate, and by the decree of the Orphans’ court, ordered and directed to be paid by the said William M. Marr, as executor as aforesaid, being a part of the estate of the intestate, at the time of granting of the letters of administration, as aforesaid, to complainant, remained unadministered by the said William Y. Glover, as sheriff and administrator, as aforesaid; tbe whole, or any part thereof, having at no time been paid to, or received by him.
    The bill farther stated, that by reason of the premises, complainant became entitled to demand and receive, from said Nancy G. Marr, executrix, as aforesaid, and she, said executrix, was bound to pay to complainant, as administrator,' the said - sum of twelve hundred and eighty-seven dollars' and twenty-five cents, decreed to be paid by said Marr, according to the terms, legal effect, and conditions of the decree, and of the last will and testament of said John Spencer, senior, deceased, and to that end, complainant had requested defendant to pay the same, which she had refused to do, pretending that she was not bound to pay the same, and that said sum of money had been paid to complainant’s intestate, &c.
    All of which was contrary to equity, &c.
    The bill prayed for a full, true, and explicit answer to the matters charged and stated, — for the writ of subpoena, and that defendant, as the executrix of William M. Marr, deceased, might be decreed to pay him, complainant, administrator as aforesaid-, the said sum of twelve hundred and eighty-seven dollars and twenty-five cents, &c.
    The bill was accompanied with a copy of the' will, and of the order of the Orphans’ court of Tuscaloosa, decreeing the payment of the sum of money mentioned in the bill.
    In answer of Nancy G. Marr, administratrix of William M. Marr, deceased, defendant to the bill of complaint of James McCullough, as administrator do bonis non oí’ Benjamin F. Spencer, deceased — stated :
    That respondent was informed and believed, that the testator, Spencer, did make his last will and testament of the date and purport as in the bill alleged, and afterwards departed this life; and that by the said will, William M. Marr, Edward B. Elliot, and Thomp-sonWindham were appointed executors; That testator left a large real and personal estate; tliat the will was proved, as stated in the bill, and the executors undertook the administration thereof; after Which, said Windham resigned as executor, as stated in the bill, and the execution of the will devolved on the said-Marr and Said Elliot. ■
    The answer admitted the copy of the will attached to complainant’s bill to be a true copy, but denied that any thing contained in the will, authorized the inference drawn therefrom, that the legacies given to said Benjamin F. Bpencer for his'use, 'were so given by reason of the prodigal and intemperate habits of said Benjamin. Respondent was advised, that in ordinary-cases, clear of ambiguity, no other mode of ascertaining the testator’s intention could be legally resorted to, but a fair, reasonable, and common sense interpretation.of the words used in the will, and by this test it appeared that, for -some reasons, the testator chose to leave the legacies intended for the said Benjamin F. payable whenever his executors should believe the legatee would prudently manage the same. Nothing was said in the wall of said legatee’s being prodigal, or intemperate, but it was virtually Said that he was deficient in prudence enough to manage the legacies left him; when he'obtained that prudence, hi the opinion of the executors, or such of them as administered the will, they were authoi’ized to pay him the legacies.
    The answer admits that Marr and Elliot, after the resignation of Windham, continued to discharge the duties of executors, until the fourteenth day of January, eighteen hundred and thirty-one, when a final settlement of the estate was made, and a decree rendered, as pet forth in the bill of complaint and appended to the same, by which the testator of respondent was ordered to pay to said Benjamin F. Spencer, the-S\jm of twelve. hundred and eighty-seven dollars and t-wenty-five cents, and that he was bound to pay the. same,., subject to a deduction of any amounts he had. previously paid, on account of the legacies, to said Benjamin F. according to the terms and conditions of said last will and testament of said John Spencer, senior-, deceased.
    Respondent admitted that, after the making of said final settlement and decree, as aforesaid, to wit, on the first day of September, eighteen hundred and thirty-one, the said William M. Marr departed this life, leaving a considerable estate, both real and personal, but denied that the sum decreed, as aforesaid, to be paid to said Benjamin F., or any part thereof, was remaining in the hands of said Marr, but averred that on the eleventh day of February, eighteen hundred and thirty-one, he paid and wholly satisfied the full amount he was bound to pay said Benjamin F., who executed to said William M. Marr. a receipt and release for one thousand four hundred and twenty-three dollars, in full of the principal and interest due him, said Benjamin F. as one of the legatees of said John Spencer, senior, deceased, a copy of which was appended to the answer. The payment was made pursuant to the injunctions of the will, as said Marr was legally advised, and in a conscientious discharge of the duty and trust reposed in him by- the will. William M. Marr made and published his will, as alleged in the bill, and appointed respondent executrix of the same, and after-wards departed this life, and respondent took upon herself the execution of the same, as alleged in the bill; but respondent denied that she thereby became chargeable as executrix with the payment of any portion of the legacies bequeathed to complainant’s intestate — the same having been fully paid off and satisfied, as aforesaid.
    Respondent was unable to state what the habits of said Benjamin F. were previously to his death, but denied that he had not so conducted himself, at some period between the decase of his father and his own death, as .to entitle himself to a payment, under the will, of the legacies bequeathed him, by inducing a satisfactory conviction that he would prudently manage the same. Respondent relied, also, upon the statute of non-claim — the period of eighteen months having elapsed after the issuance to her of letters testamentary, under the will of her husband, and before application of any sort, from any quarter, was made to her in relation to the legacies aforesaid. Defendant also demurred to the bill — because,
    1. It was not alleged that payment of said legacies had not been made to said Benjamin F. in his life time.
    2. Because it appeared by the bill that no demand of payment, or presentation of a claim of said legacies, was made to said defendant, as- executrix as aforesaid, within eighteen months after letters testamentary were granted to her, as aforesaid, &c.
    The receipt appended to the answer was dated on the eleventh day of February, eighteen hundred and thirty-one, and signed and sealed by B. F. Spencer, and, stated, that he had, on that day, received of William M. Marr, one of the executors of the last will and testament of his father, John Spencer, senior, deceased, one thousand four hundred and twenty-three dollars, the same being the full amount due him from said Marr, on account of the moneys received by said Marr, as executor as aforesaid, and according to a final settlement made by the Court, on the eighteenth day of January previous ; and he released said Marr from all further claim, or claims, on account of his portion of his father’s estate, &c.
    The evidence submitted, showed that the legatee, the intestate of the complainant, had lived a very dissolute and intemperate life, from the time of the death of his father until his own decease, though there were occasional indications of reform, and periods of abstinence.
    It appeared to the chancellor that, by the bill, and the exhibits accompanying it, John Spencer, senior, 'deceased, in the year eighteen hundred and twenty-six, made his last will and testament, in which was a bequest to his son, B. F. Spencer, of one thousand dollars, and also, one eighth part of the residue of testator’s estate, after the payment of his debts, and certain specific legacies, which the testator directed to remain in the hands of his executors, as trustees, for the benefit of his said son, the interest to be paid yearly for his support. . The will charged the executors, never to pay the son, said B. F. Spencer, any part of the thousand dollars, until they should be thoroughly satisfied that he would prudently manage the same. The same injunction was imposed as to his residuary share. At a final settlement before the judge of the Orphan’s court, respondent’s testator was decreed to pay to said B. F. Spencer the sum of twelve hundred and eighty-seven dollars and twenty-five cents, to be paid according to the terms of the will.
    It appeared further to the chancellor, that the answer of respondent admitted all the material allegations in the bill, but insisted that B. F. Spencer reformed, and that the testator of respondent paid him the sum decreed to be paid. But upon examining the testimony with great care, the chancellor was of opinion, that the evidence did not show that B. F. Spencer did, at any time, reform his habits so as to authorize the payment of the legacies bequeathed to him by his father’s will. Admitting, therefore, that the money was paid, as insisted by the respondent, it was paid in violation of the trust reposed in the executors by the testator, and afforded no defence to a recovery.
    It was therefore ordered, adjudged and decreed, that the respondent pay to the complainant as administrator, the sum of twelve hundred and eightv-seven dollars, and twenty-five cents, and interest on the same, from the date of the decree of the Orphan’s court, and also the costs of the suit, both to be levied of the effects of the respondent’s testator.

      From this decree defendant prosecuted her writ of error — and at the present term of the Supreme court, the plaintiff in error assigned, that in the decree aforesaid, the court below erred —
    1. Because the chancellor did not sustain the re•spondent’s demurrer to complainant’s bill;
    2. Because the court below decreed in favor of the complainant, and
    3. Because costs were decreed against the respondent.

      Crabb, for plaintiff in error.

      Ellis 8f Peck, contra.
   COLLIER, C. J.

The questions arising in this case are—

First. Does the bequest of one thousand dollars by the will of John Spencer, senior, to Ms executors in trust, to be paid to the intestate of the defendant in error, when the executors “ shall be thoroughly satisfied that he will prudently manage the same,” with the direction of the payment annually of interest thereon, in the meantime, pass a vested legacy 1

Second. Does the proof in the cause establish a payment by the plaintiff’s testator to the defendant’s intestate in his lifetime. If it does, can the defendant coerce a second payment, though the legacy had vested in his intestate ?

1. If a legacy be given generally, -without appointing the time for its payment, it vests immediately upon the testator’s death, though it be not deman dable until the expiration of the period defined by law, after the grant of letters testamentary. It is an interest in proesenti solvendum in futuro, and if the legatee die before he is allowed to adopt coercive measures with a view to its recovery, yet his personal representative will be entitled ■ to the legacy. But when a period beyond the testator’s death, is prescribed by the will for the payment of the legacy, it often becomes a perplexing question whether it is vested or contingent, in the solution of this question, as in all others, arising upon the construction of wills, the intention of the testator exerts a controlling influence, when it is possible to be known by the aid of those rules which áre established by law for its ascertainment. The construction of a will being settled, it may be laid down that the legacy will be vested, if the testator annexed tirria to the payment only; but if to the gift, then it will be contingent. And where contingent, no interest will pass to the executors or administrators of the. legatee, if he dies before the period arrives for the legacy to vest.

It may be remarked, that the rule which considers a legacy as vested, where given in terms immediate, and the payment alone postponed, is itself subject to exceptions. Among these, may he enumerated the cases where it appears from a construction of the whole will, that the testator intended that the legacy should not vest until the time when it was to be paid, and where the event, upon which its payment is directed, is uncertain as to its taking place — upon the maxim, dies imertus in testamento condiiionem facit. But this latter exception, will not apply in all cases where the event upon which the payment of a legacy is directed, is uncertain, and always gives place to the meaning of the testator, where it appears from a view of the entire will, that he did not intend to make the legacy conditional.

And it has been often held, that the gift of a legacy, to he paid upon a future uncertain event, with the direction to pay to the legatee, the interest accruing in the meantime, sufficiently indicates that it was net the testators intention to make the legacy conditional.

In Fonereau vs. Fonereau, there appeared to have been, a devise of one thousand pounds to an infant, which the testator authorised his executors to lay out on such securities as they should see fit, and the interests or income thereof, to be applied towards the education of the legatee as they should think proper, and also to apply a part of the principal to put him apprentice, and the remainder to be paid him when he shall have attained his age of twenty -live, and not before. The Lord. Chancellor, among other things, said: “It is true, there is a distinction, where a legacy is given to one at his age of twenty-one= — ti: ere it is not vested: this distinction now is absolutely settled. But there are eases, where, when a testator gives interest in the meantime, he gives a property in the principal, unless something arises on the face of the will, to take off the force of it.”. And it was holden that the legacy vested, and the securities were directed to be transferred to the representatives of the legates — he having died before he “ attained his age of twenty-five.”

In Booth vs. Booth, the testator having devised and bequeathed the larger portion of his real estate, “ gave all the residue of his estate and effects, which should remain after paying his debts, &c.” to certain trustees, “ then executors, &c. upon -trust, as soon after his decease as conveniently might be, to collect and get in the same,'and invest the same from time to time in some of the public funds, &c., and upon trust, pay the dividends and produce thereof, as the same should from time to time become due, equally to his grand nieces, &c. until their respective marriages, and from and immediately after their respective marriages, to assign and transfer their respective moieties or shares thereof, unto them respectively.” One of the legatees being dead without ever having been married, it became material to ascertain whether the legacies vested. The Master of the Rolls, decided that the legacies to the grand-nieces vested, upon the grounds that the dividends and produce were required to be paid, previous to the marriages of either, and for the additional reason, that they were the bequest of a residue; and thereupon directed the moiety of the deceased legatee to he paid to her executor. So in Monkhouse vs. Holmes, one of the principal questions discussed was, whether a bequest to trustees of eight hundred pounds, to pay the interest to the testator’s wife for life, and then in parts and shares to legatees designated by the will, gave a vested interest to the several legatees. Lord Loughborough considered that the form of the bequest clearly indicated the intention of the testator not to annex time to the substance of the gift, but only to its payment. It may be remarked generally, that if the day is certain when a legacy is to be paid, the legacy is vested, “ but where uncertain, the true question will be, whether it is in the nature of a condition.” If it be a condition, time is annexed to the substance of the gift, and the legacy does not vest, until the arrival of the appointed period, or the happening of the event. In the case last noticed, Cloberry's case is cited, in which Lord Nottingham said, “ the giving interest shews no contingent legacy was intended.”

This doctrine was elaborately considered in Paterson vs. Ellis' ex'rs, by the Court of errors of New York; and it was there determined, that where the gift of a legacy is absolute, and the time of payment only postponed, as where a sum of money is given to be paid to the legatee when he shall attain a certain age, time not being of the substance of the gift, postpones the payment, but not the vesting of the legacy; and if the legatee die before the period appointed, his representatives are entitled to the money. But where the legacy is given when the legatee shall attain, or provided he does attain the age prescribed, time is of the substance of the gift, and the legacy does not vest until the contingency happens. And even where the legacy is given whent\\é legatee attains a certain age, if the testator directs the interest of the legacy to be applied in the meantime for

the benefit of the legatee, there being an absolute gift of the interest, the principal will he deemed to have vested. So the legacy will be deemed to have vested, if the trustee he invested with a discretion to pay it before the time specified in the will. Without noticing more particularly the great number of authorities, upon the application of this exception to the maxim of dies incerius in testamento conditionem facit, we shall content ourselves merely with a reference to some of them. Collins vs. Metcalfe *—Stapleton vs. Cheele —Hoath vs. Hoath Walcott vs. Hall —Dodson vs. Hay —Hanson vs. Graham —Lane vs. Goudge —Leake vs. Robinson —Jones vs. Mackelvain —Livesey vs. Livesey —Pulsford vs. HunterVawdly vs. Geddes —Butler's note to Fearne Cont. Rem. 553—Green vs. Pigot —May vs. Wood —Cave vs. Cave -Van vs. Clark—Piercy vs. Roberts . But it has been said the gift of the accruing interest, or a direction to apply it for the benefit of the legatee, will not vest the legacy, if the amount given for maintenance be not co-extensive with the whole amount of the interest, or if it be, to be paid out of another fund. It has been also said that where legacies are given out of real'estate, the gift of interest immediately will not have the effect to vest the legacy.—Prouse vs. Abingdon—Smith vs. Smith —Pearce vs. Lowman —Watkins vs. Cheek —Carter vs. Bletsoe—Hubert vs. Parsons —Paterson vs. Ellis' ex'rs. And it has been determined that where a testator made a bequest of legacies to infants when they should attain the age of twenty-one years, and appointed a trustee during their minori ty, tlic appointment of a trustee, indicated the testator’s intention, that the legacy should vest, “ as there could not be a trustee of nothing” — Branstrom vs. Wilkinson —Paterson vs. Ellis. But we do not feel ourselves called on to consider these several questions here, as in the case before us, there is a direction to pay the entire interest of a 'personal legacy, which sufficiently manifests the testator’s intention, that the legacy should vest.

In the construction of wills, we have already said that the testator’s intention, where consistent with the law, must prevail. Now as the intention is only implied, that a legacy shah vest, from the direction to pay interest until the principal is due, — if from a view of the whole will, it appears that the testator intended to make the interest a subject of the bequest, until some future period, and the principal is then for the first time to be taken out from the residue of his estate and paid to the legatee, it is clear that the legacy does not vest. “Because the gift and the payment of it are one and the same, and it was the intention of the testator to make the gift of the interest and the capital separate and distinct, so as to constitute the time appointed for payment of the principal, the very essence of the gift of it.” But if no intention can be gathered from the will, to countervail the legal inference, that the gift of the interest vests the principal, the representatives of the legatee will always be entitled. In the present case, the corpus of the legacy was given to the executors as trustees, with a postponement of the payment to an indefinite period, depending upon a careful and honest exercise of their discretion. The legacy then, not only upon the authority of precedent, but upon principle also, vested in the defendant’s intestate, immediately on the death of John Spencer, the testator.

2. it is sufficiently shewn by the proof, that the testator of the plaintiff in error, paid to the defendant’s intestate the entire amount of his legacy, either in money or in something else esteemed by him as an equivalent, and obtained his receipt in full, after the rendition of the decree by the judge of the County court. And the only question remaining to be considered, is, whether such payment was a legal satisfaction of the legacy. The defendant in error cannot occupy a more favorable position than his intestate did while living, so as to enable him to urge an objection to the payment, which would not have been available, if made by the intestate himself. It might be granted, that the plaintiff’s testator did not exercise his discretion with wisdom or even in good faith, in paying to the intestate his legacy, and yet the defendant is not entitled to recover, if there was a satisfaction in point of fact. The intestate could not have been heard to allege his incapacity to manage his own affairs with prudence, as a reason why his legacy was unsatisfied: to have entertained such an objection, would be to allow one to profit by his own wrong. The legacy then, having vested in the intestate of the defendant, it was competent for him either to have released it, or to have received it in possession — and it appearing from the proof, that it was fully paid to him, there was no interest left to be transmitted to his administrator, by the grant of administration: and as the death of the legatee could not revive the charge against the plaintiff, it follows, that the defendant has no cause of complaint against her.

The decree of the Circuit court is therefore reversed; and this court rendering such decree as should have been rendered by the Circuit court, doth order, &c. the bill to be dismissed, and the costs of this court and the court below, to be paid by the defendant in error.

      3 Aik. 645.

         4 Ves. R. 400.

      1 Vern. 462.

      2 Vera. 673.

       2 Bro. Ch. R. 4.

      Ibici, 305.

      Ibid, 404.

      6 Ves. 239.

      9 Ves. 229.

      2 Meriv. 386.

       1 Russ. Ch. R. 220.

       3 Cond. Ch. R. 399.

       3 Bro. Ch. R. 416.

       4 Cond. Ch. R. 389.

       1 Bro. Ch. R. 104-5.

       3 Bro. Ch. R. 471.

       2 Vern. 508.

       1 Atk. 510.

       6 Cond. Ch. R. 469.

       Bro.Ch. R. 416; 6 Ves. 249; 2 Medv. 386-7; 4 Cond. Ch. R. 389; 1 Roper’s Leg. 497.

       1 Atk. 482.

       2 Vern. 92.

       3 Ves. 135.

       1 Cond. Ch. R. 416.

       2 Vern. 617.

       2 Ves. 262.

       11 Wend. R. 272; see also 1 Atk. 512-556.

      1 Bro. Ch. R. 298.

      2 Vent. 342.

       11 Wend. R. 259.

      7 Ves. 422.

       11 Wend. R. 274.

      1 Roper’s Leg. 500; 3 Yes. 363; 12 Ves. 75; 3 Atk. 219; 2 Meriv. 3G3.


author: COLLIER, C. J

text:
    POWERS VS BRYANT’S adm’r.
    1. A verification, at the foot of a plea in abatement, stating it to have been sworn to and subscribed in open court, certified by the clerk, is a sufficient compliance with the statute which requires such pléas to be accompanied with an affidavit.
    2. A plea in abatement of a writ, alleging the residence of defendant in another county, need not allege the ground of abatement to have been continued up to the time of pleading; and a change of residence of defendant, between the time of suit brought and the time! of interposing the defence, cannot deprive him of his privilege under the statute authorising the plea.
    3. The words “resident citizen,” in such a plea, are as forcible to indicate a fixed home, as the words “permanent residence,” which are the words employed in the statute, and sufficiently accord with the intent and meaning of the statute.
    4. A demurrer to a plea in abatement admits the plea to be on file, and can only contest its legal sufficiency; and semble does not reach the indorsement on the plea required by the twelfth rule, regulating the practice in the Circuit and County courts.
    5. Though an objection might, it seems, be well taken to such plea, if it affirmatively appears not to have been filed within the time prescribed by statute.

      0. The certificate of a judicial officer or clerk of a court, of the acknowledgment or proof of deeds, need not be under seal; and the hand-writing of the judge or clerk taking the acknowledgment, may be proved in open court by any witness acquainted with it.

      7. To support a plea in abatement which alleges that defendant was at the time of service of the writ, a resident citizen and freeholder in another county, a conveyance of a lot of land to defendant, without suppletory proof, is not sufficient: ¡Sem-ble, that proof that the grantor in the conveyance had title, or that defendant was in actual occupancy of the land, would sustain the defence.
    Error to the Circuit court of Tuskaloosa county.
    Action on the cause in assumpsit. Plaintiff issued his writ against defendant, returnable at the Spring term, eighteen hundred and thirty-five, of the said court, which was returned executed, and at the March term of said court, filed his declaration, for that on the seventh day of July, eighteen hundred and thirty-three, in the county-aforesaid, defendant made and delivered to said plaintiff a certain promissory note of defendant of that date, and thereby then and there promised to pay hy the twenty-fifth day of December next thereafter, to the said plaintiff, or hearer, three hundred dollars, in good negro property at a cash price, for value received of him on that day. And although the note had been long due, and defendant often requested, yet he had not paid said sum of money in said note specified, according to the tenor and effect thereof, but so to do had wholly neglected and refused, &c.
    And the defendant came in his own proper person, and filed his plea in abatement to the plaintiff’s declaration, in the following terms, to wit: That the said plaintiff further to sustain his said action ought not, because he said that at the time 'when the writ in the cause was issued, and 'when the same was executed, he, the said defendant, was a resident citizen of the county of Mobile, and a freeholder of said county, and this he was ready to verify. This plea was subscribed and sworn to by defendant in open court.
    To this plea plaintiff demurred; which being overruled, the plaintiff replied, and upon issue, a verdict was given for the defendant.
    Before the jurors withdrew from the bar of the court, the plaintiff filed his bill of exceptions, which stated, that on the trial of the issue upon the plea in abatement, the defendant, after shewing his residence in Mobile county, offered as evidence, to prove himself a freeholder in the said county of Mobile, a deed of bargain and sale from one Moody and wife, to himself, of a freehold estate in said county of Mobile, having endorsed upon it a certificate of acknowledgment and registration in the usual form, except that it was under the private seal of the clerk of the County court, not including a statement or shewing, that there was no public or official seal to the office: to the introduction of which deed, thus authenticated, the plaintiff objected; whereupon, the court permitted the defendant to prove the handwriting of the said clerk, to which also the plaintiff objected, as well as to the introduction of the said deed; which objection of the plaintiff tiie court overruled, and permitted said deed to go in evidence to the jury.
    Upon this state of the case, the plaintiff requested the court to charge the jury, that the evidence was not of itself sufficient to sustain the defendant’s averment in his plea, that he was a freeholder; which instruction the court refused, and to all the things as above stated, plaintiff excepted, &c.
    And the said plaintiff here said, that in the record from the court below, there was error, to wit:
    1. That the court below overruled plaintiff’s demurrer to the plea in abatement;
    2. That the court below permitted defendant to prove the hand-writing of the clerk, after the plaintiff’s objection as shewn in the bill of exceptions;
    3. That the court below permitted the deed to go in evidence to the jury, as authenticated, as shewn by the bill, &c.
    4. That the court below overruled and refused the instruction asked for by the plaintiff, &e.
    And at the June term of this court, upon a suggestion of the death of the defendant below, a scire facias issued to his personal representative, to appear if he thought proper, to do and receive what this court should consider, &c. Upon the return of which, being executed, the administrator cum testamento annexo of the deceased, was entered as a party, &c,

      Crabb, for plaintiff in error,
    now urged the reversal of this case,—
    1. Because the court below should have sustained the demurrer to the plea in abatement. That plea was not -filed in proper time. It was not verified by affidavit— (Aik. Dig. 276, s. 103.) It was not good in substance— it did not allege that Mobile county was the county of defendant’s •permanent residence, as the statute requires —(Aik. Dig. 284. s. 146.) Nor did the plea allege, as it should, that Mobile was the county of defendant’s permanent residence at the time of filing the plea, as well as when the writ was issued and when executed. Dilatory pleas were to be construed strictly, and against the party pleading — (Gould’s PI. ch. 3, s. 57,58 and 59; ch. 5, s. 66.
    The evidence offered on the trial of the issue, did not prove a permanent residence of the defendant in Mobile county. The evidence offered to show a freehod in defendant, was not admissible, when first offered, because there was nothing about the certificate of its execution that implied verity, and it ought to have been proven by a witness before the court, who saw it executed. The court ought not to have permitted the proof of the hand-writing of the person who professed to be clerk, to have dispensed with the ordinary mode of proving deeds at common law. As there was no official seal to attest the verity of the clerk’s certificate, the next best evidence was the certificate of the judge of the county court of Mobile, that the person certifying was clerk, and that his certificate was entitled to due faith and credit as such. As no official seal accompanied the certificate, and no statement that there was no official seal, and therefore the private seal was affixed, — there was ground of suspicion that the certificate to the deed in question was not legally and in good faith applied, and therefore danger in deviating from the common law mode of proving the deed.
    But if the deed was sufficiently authenticated, there
      wc.s error in admitting it as evidence per se of freehold in the grantee. Es should have been required also to prove possession under the deed; for mere possession of title papers is not such evidence of freehold as should be required to sustain a plea in abatement ef freehold. It was not at all unusual, that an individual retained the evidence of a conveyance of land to himself, after he had divested himself of all title by a subsequent conveyance to another. If this was sufficient evidence, an insolvent individual, who had not owned a freehold for years, might sustain a plea of freehold. This was a dilatory plea, and defendant should have been held to the strictest proof of his allegations. He might have divested himself of his freehold, and yet it be out of the power of the plaintiff to show it, because of the conveyance not having been recorded.
    That a plea in abatement must be verified by affidavit — (See 2 Stew. & Por. 358.)
    Porter, contra.
   COLLIER, C. J

— The facts suggest these questions—

First. Should the demurrer to the testator’s ]3lea have been sustained?

Second. Was the dred for the lot in Mobile legally admitted in evidence?

Third. Was it sufficient evidence in point of law, to show that the'testator was a freeholder, as alleged in his plea ?

1. The verification at the foot of the plea, stating it to have been sworn to, and subscribed in open court, (as certified by the clerk,) is certainly a sufficient compliance with the statute, which requires such pleas to he accompanied with an affidavit of their truth.

The words “sworn to” clearly refer to the plea, and must he taken to mean, that the testator declared, on oath, the facts it set forth were true.

Nor is the plea objectionable, in not alleging the ground of abatement to be continuing up to the time of pleading. The language of the statute forbids such an idea. It exempts from suit, any one situated as the testator is shewn by his plea to have been; and a change of condition between the time of bringing suit and interposing the defence, cannot deprive him of his privilege. We are warranted in this conclusion by the usual forms of such a plea —(1 Stew. R. 22; ibid 379; 2 Stew. & Por. R. 247.)

The plea does not, in the defence relied on, employ the precise language used in the statute, the words of which are: “ No freeholder of this territory shall be sued out of the county of his permanent residence,” &c.

The plea is, that the “ defendant was a resident citizen of the county of Mobile, and a freeholder of said county.” The adjective “resident,” preceding the substantive “ citizen ,” we think quite as forcible to indicate a fixed home, as the words “ permanent residence” connected in the act; and as no rule of pleading requires a de-fence of this character to be disclosed, otherwise than according to the intent and meaning of the statute, — we are of opinion that the discrepancy is not fatal.

If, however, the demurrer can be made to reach not only to defects apparent in the plea, but to the want of an indorsement on the plea of the time of pleading, it still might be sustained. By the twelfth rule, regulating the “practice in the Circuit and County courts,” it is provided that, “ No plea in abatement shall be received, if objected to, unless by the indorsement of the clerk, it appear to have been filed within the time allowed for pleading.” The phraseology of this rule would intimate, that the want of an indorsement, such as it contemplates, must be objected, before the reception of the plea, or it cannot be afterwards raised. In the present case, the demurrer admits the plea to be in file, and can only contest its legal sufficiency on the ground, that the facts disclosed, do not constitute an available defence, or else do not come in, in such form as to make them unexceptionable. If it appeared affirmatively that the plea was not filed within the time prescribed by statute, we will not say that such an objection would not have been well taken; but this is not discovered by the record, however the fact may be.—(Buddle vs. Wilson, 6 T. R. 369; and McAlpin & McAlpin vs. May, 1 Stew. R. 520.) We are, then, brought to the conclusion, that in overruling the demurrer, the Circuit court did not err.

2. The solution of the second question must depend on our statutes, in regard to the acknowledgment and certification of deeds. By the third section of the act of eighteen hundred and three, (Aik. Dig. 88,) the judges of the Superior court, or one of the justices of the County court, of any county in which the lands, &c. are situated, are authorised to take the acknowledgment or probate of deeds or conveyances of land, &c., “ and if a certificate of such acknowledgment or proofs shall be written upon or under the said deed or conveyance, and be signed by the person before whom ft was made, then every such deed or conveyance, so acknowledged, or proved and certified, shall be received in evidence in any court of this territory, as if the same were then and there produced and proved.’-’

By the first section of the act of eighteen hundred and ■eighteen, (Aik. Dig. 90,) it is enacted, that clerks of the Superior and County courts shall take and certify ác-. knowledgments of deeds and relinquishments of dower, within their respective counties, in like manner and form as were then required, when taken before a judge of the Superior court or justice of the quorum. These-are 4lre only statutable provisions which can have any influence upon the question.

The act of eighteen hundred and three, does not require the certificate of a judicial officer of the acknowledgment or proof of deeds to be made under seal, so that these acts would be quite as valid, without that appendage. The act of eighteen hundred and eighteen, which confers'the authority given by the previous enactments, on the clerks of the courts, only requires that they shall execute it, in the like manner and form as theretofore required. Now as seals were not theretofore essential to the validity of a certificate, it would seem" necessarily to follow, that the objection founded upon the want of a seal, was not well taken, and that there could be no objection to the course adopted on the trial, of proving the hand-writing of the clerk.

3. The deed was not sufficient in itself, to show the testator to have been a freeholder in Mobile at the commencement of the action, or at any other time. There was no evidence that the grantor himself had the title, which by his deed, he undertook to convey — nor was the absence of this, supplied by proof, that the testator was in the actual occupancy of the lot conveyed. Without suppletory proof, the deed could not sustain the de-fence, and for the refusal so to instruct the Jury, there is error.

The judgment is reversed and the cause remanded.


author: ORMOND, J.

text:
    EXECUTORS OF GREEN VS GREEN.

      h Under the operation of the statute of uses, a jointure made expressly in lieu of dower, barred the widow of her dower; but a devise or bequest will not, unless expressly or impliedly so declared in the will; and in such case, the widow is entitled to her election. '

      2. Where no provision is made for the widow by the will of the husband, she may claim dower without any express dissent from the will: and a'petition for dower to the Circuit or County court, is a sufficient dissent on the part of the widow from the will; and is equivalent to an abandonment of her claim under it
    3. The evil intended to be remedied by the statute, (Aik. Dig. 132,) was the delay to which a demandant in dower was subjected, at common law, and not the inadequacy of the common law remedy; and as the rights of all the parties interested were sedulously guarded by the common law — so, therefore : in all cases of petition for dower under the statute, it is necessary in the petition, or by suggestion to .the court, for the demandant to state, who are the heirs and tenants of the freehold, and to avoid delay, she may give them notice to appear and contest her claim; and the petition should set forth with reasonable precision all the facts on which the claim rests; and, semble, that if after notice, the heirs and terre-tenants do not appear, the fact should be spread upon the record, before the court will be sufficiently authorised to grant the prayer of the petition.
    4. Notice to the executor, that he may contest the claim of de-mandant, and public notice in the gazette, if demandant be herself executrix or administratrix, or there be no tenant in possession, or the person claiming the fee be not in reach of process, are also necessary parts of the proceeding, but semble the executor is not .constituted a defendant to protect the rights of those who claim an interest in the freehold, nor can those interested be concluded by his action, or by his failure to act.

      5. The executor may shew cause against the claim of the de-mandant to the personal estate of the deceased, by making known that the estate is not finally settled,, or that there are outstanding debts, or by shewing any claim he might have under the will, or that the landds a term and not a freehold • but for any other purpose, he has no right to contest the claim of the widow, and will be considered a mere volunteer: nevertheless, where he has been cited by process of the court to appear and contest the claim of the widow, he cannot be amerced in costs..
    Error to the County court of Jackson county.
    This was a petition filed by the defendant in error, in the County court of Jackson county, praying that dower be assigned her in the lands and personal property of her husband. The petition alleged the marriage and the death of the husband, in April, eighteen hundred and thirty-three-. That he made a will; in which she was. not. at all provided for, in either real or personal property. The petition described the land, of which it alleged' the deceased died seized, and stated, that his personal property was worth from three to four thousand dollars. The petition was filed on the first day of April, eighteen hundred and thirty-four.
    Upon tliis-petition, an alias citation issued to the plaintiffs in error, as executors of Burkit Green, to appear and show cause, why dower should not he assigned to the widow, which issued on the twenty-second of June, eighteen hundred and thirty-five, and was returnable to. tbe August term after. This was returned executed hy the sheriff.
    The plaintiffs appeared, and moved' the court to dismiss the petition, on the ground, that there had been a discontinuance of the cause; and because the estate of the deceased was not sufficiently described in the petition. This motion being refused by the court, the plaintiffs pleaded in abatement of the petition, for want of notice, either by advertisement or otherwise, of the filing of the petition. This plea was demurred to, and the demurrer overruled by the court, at the eosts of the plaintiffs in error, to be levied of the goods and chattels of their testator. The plaintiffs in error then demurred to the petition, which was overruled by the court.
    The court then awarded a writ of admeasurement of dower, directing the sheriff to summon five freeholders, to allot and set off by metes and bounds to the petitioner, her dower in the lands of the deceased, (which were described) and to put her in possession of the same; and also, to allot and set off to her, her portion of the personal estate.
    This writ was returned by the sheriff, with an endorsement signed by four persons, who described themselves as commissioners, summoned by the sheriff and duly sworn, and described by metes and bounds, the lands allotted to the widow, and further stated, that they demanded a part of the personal property of the deceased, which the executors refused to deliver. The report was also signed by the sheriff.
    This report of the commissioners, was, at the ensuing term of the court, ordered to be recorded.
    The plaintiffs assign for error— '
    1. That the court erred, in not sustaining the demurrer to" the petition;
    2. In overruling the demurrer, to the plea in abatement ;

      3. For failing to dismiss the petition, in consequence of the failure to issue citation, until a year after the petition was filed;
    4. Because the sheriff made no return to the writ, and because only four persons signed the report, alloting dower as commissioners;
    5. The notice served on the executors, was an application for dower only — and the writ required the commissioners to disburse to the widow, a share of the personal property;
    6. The petition showed no right to dower, or to a distributive share, shown in the petition;

      7. It did not appear that the commissioners were either summoned or sworn;
    8. The allotment of dower was vague and uncertain.
    Parsons, for plaintiff in error.
    Robinson, contra.
   ORMOND, J.

— As the settlement of the important questions of law raised on this record, will mainly depend on the proper construction to be put on the statute, regulating this proceeding, we will in the first place ascertain the rights given, and the duties imposed by it.

The act will be found on page 132, of Aikin’s Digest, title dower. The third section provides, that “ when any person shall die intestate, or shall make his last will and testament, and not therein make any express provision for his wife, by giving and devising unto her, such part or parcel of his real and personal estate, as shall be fully satisfactory to her, such widow may signify her dissent thereto, in the Superior or County court in the county wherein she resides, at any time within one year after the prohate of such will, and then and in that case, she shall he entitled to dower in the following manner, &c.:

It is alleged in the petition, that the husband of the petitioner died without making any provision in his last will and testament for her, either of real or personal property; and it is insisted by the counsel for the plaintiffs in error, that before she can establish her title to dower in the estate of her late husband, she must show, that she dissented from his will, within twelve months after its probate.

The right to dower is a common law right, which can only be impaired by statute; and in order to ascertain how far the statute has imposed restraints or limitations on it, let us enquire how it stands at common law.

The inchoate right of the wife to dower, attaches at the instant of marriage. It is a right highly favored by the common law. No conveyance to the wife during coverture would operate as a substitute for her dower. By the operation of the statute of uses, a jointure made expressly by its terms in lieu of dower, will bar the widow of dower, but a devise or bequest will not, unless expressly so declared in the will; or unless it arise from necessary implication from the will, that it was intended in lieu of dower; in which last case, the chancellor will put her to her election, which she will take. The case of Strahan vs. Sutton, (3 Vesey, jr.) is a strong case to this effect. The Master of the Rolls declares, in substance, that the widow shall not he put to her election, whether she will take under the will or claim her dower, unless her claim be inconsistent with the will; and in that case, he refused to put her to her election. The very term implies choice, selection. But how can there be a choice between her right to dower, and her rights under the will, when she can take nothing under the will 1 We cannot suppose the legislature intended such an absurdity, and conclude, that where no provision is made by the will for the widow, she may claim her dower without any express dissent from the will.

A more difficult question arises, as to what act on the part of the widow shall constitute a dissent from the will, in cases where she thinks an unsuitable or inadequate provision is made for her. The statute is silent as to the mode of doing the act, though it points out the place where it shall be done; “ In the Circuit or County court of the county wherein she resides.” It would appear from the statute, that any act of public notoriety, either by parol or in writing, in either of the places mentioned in the act, signifying her dissent to the will, would satisfy its terms; the more especially, when we consider, that the statute is in derogation of the common law. At all events, we are satisfied that the filing a petition for dower, in the Circuit or County court, is such an act as will signify her dissent from the will. This will appear more plain, when we consider the first section of the act. “ The widow may in all cases, waive the provision made for her in the will of her deceased husband, and claim her dower, which shall be assigned her accordingly; in which case, she shall receive no part of such provision, unless it appear plainly by the will, that the testator intended it, in addition to her dower.” Now, as she cannot claim under the will, and assert her' Tight to dower also, the assertion of one is precisely equivalent to the abandonment bf the other.

The fifth and sixth sections of the act, point out the .mode in which the widow shall proceed to have her dower assigned. This portion of the act seems to have been rather loosely drawn.- but we cannot agree that the construction put on it by the counsel for the defendant in error, is correct. To assert that the proceedings are entirely ex parte, would be destructive of the very first principles of justice, and in direct contravention of the bill of fights; which declares, that “ no one shall be deprived of life, liberty, or property, but by due course bf law.” By the fifth section of the act, the sheriff is required, after the allotment is made, to put the widow in possession; “ which possession” the act says, “ shall vest in her- an estate for her natural life.” The estate out of whieh the dower is tafeen, might be in the possession of a purchaser, who might receive his first notice bf the claim by the visit of the sheriff, to dispossess him5 without having Md any nbtice of the proceedings which led to that resült, and be driven to his action to regain the possession of his property.

In order to ascertain what the legislature designed to accomplish, by the passage of the act in question, let us enquire into the common law mode of proceeding. The process given by that law, was by writ of dower unde nihil habuit, or by writ of right of dower, against the tenant of the freehold. The result of these suits was, if the demandant was successful, an assignment of dower by the sheriff, after which the doweress was driven to her action of ejectment/to obtain possession. From this it may be seen, how sedulously the common law guarded the rights of all; for, in the prosecution of the action to obtain the assignment of dower, the defendant might plead the various matters which would bar the widow of her dower: as for example, he could controvert the seizin of the husband — deny that the demandant was lawfully married, or that she had been divorced a vinculo, or allege any of the various matters, which would bar her of her dower. The defect of the system was the delay which was caused by it. But while it is clear that it was intended to obviate this objection by giving a summary method to the widow, it is equally as certain, that the legislature could not have intended to break down all the barriers erected by the constitution, for the preservation of private rights.

The act, then, must receive such a construction as will comport with the intention of its framers — and we holcf, that in all cases, it is necessary either in the petition, or by suggestion to the court, for the petitioner to state, who are the heirs and tenants of the freehold; and to avoid delay, she may give them notice to appear at the court to which the application is made, to controvert her claim. If they appear and plead, an issue may be made up-t© try the fact or facts in controversy; or they may demur in law to the petition, for it is necessary that the petition should set forth,, with reasonable precision, the facts on which her claim to dower rests, so- as to make out a pri-ma facie case. If, after notice, they do not appear, that fact should be noticed on the record, and the court would be authorized to grant the prayer of the petitioner. Should any of the heirs or terre-tenants be infants, the court could appoint a guardian ad litem to protect their interest. By thus construing the act, we give to it the summary character which it was intended to have, while at the same time the rights of all are secured.

That the legislature contemplated this contestation by the parties in interest, is clear from the language of the act itself. The sheriff is required by the fifth section “ to summon five discreet freeholders as commissioners, connected with the parties, neither by consanguinity or affinity, and entirely disinterested,” &c. It is manifest, then, that there were to be parties to the proceeding, and as the commissioners were to be disinterested persons, not related in any manner to the parties, it follows that the parties spoken of in the act, are such as have an m-terest in the matter. For it is inconceivable why all these pains should be taken to obtain commissioners to allot the dower, but upon the supposition, that there were parties interested in the proceeding, beyond any interest the executor could have in the freehold, as executor merely-

And this brings us to the examination of that portion of the act, which requires notice to be given to the executor — or if the widow be herself the executrix or admin-istratrix, to publish a notice in the gazette. In our opinion, this notice is, under the act, a necessary part of the proceeding.

By the provisions of the fifth section of the act, the commissioners are also directed to allot and set off to the widow, her portion of the personal estate, of which her husband died possessed; there was therefore a manifest reason why the executor should be made a party to the proceeding, that he might show cause against it, by making known, that the estate was not finally settled, or that there were outstanding debts; and also that he might contest her right, in virtue of any claim he might have under the will of his testator: he might*also show that the land out of which the widow claimed her dower, was a term, and not a freehold estate. That the legislature could not have intended to constitute him a defendant, to protect the rights of those who claimed an interest in the freehold, is evident from the consideration, that it would let in all the mischiefs attendant on considering this an ex parte proceeding altogether. A construction, which would lead to such an absurdity, as to require one man to defend another’s rights, and to conclude the person interested by his action, or by his failure to act, — ought not to be imputed to the legislature, without the clearest conviction that such was their intention. We have already said, that the heirs and terre-tenants should be notified of the proceeding; it might be, however, that the widow claimed dower to land on which there was no tenant in possession, and the person claiming the fee might not be within reach of the service of notice. To subserve some such purpose, and as a mean of giving notice, was probably the reason which influenced the legislature in requiring notice to be given by advertisement. In such a case, if the owner did not appear, it is clear that the right of the widow might be afterwards contested.

The construction we have put on the act, is sanctioned by the practice under it; and has impliedly received the approbation of this court, in the cases of Chinubbee vs. Nicks, et. al. (3 Por. 362,) and Gillespie vs. Somerville, (3 Stew. & Por. 447,) in both of which cases, the controversy was between the widow, and purchasers from the husband.

It follows, from what has been said, that the executor, as such merely, and for any other purpose than as above stated, has no right to contest the widow’s claim to dower, and must be considered as a mere volunteer, unless he shows the contrary on the record, by propounding an interest.

What then, is the attitude of the plaintiffs in error— they appear on the record merely as the executors oí the deceased, without showing any interest in the lands, out of which the dower is to issue, and therefore having no interest in the matter, have no right to controvert the title of the widow to dower, in the realty.

But as it appears from the record that they were cited by the process of the court, to appear and contest the widow’s claim to dower in the estate of her husband, which process must have been sued out at the instance of the petitioner; and there being no lawful authority for this, the judgment of the court below condemning them in the costs, was erroneous; and to reverse that judgment, they might lawfully sue out a writ of error to this court.

The judgment of the court below is also erroneous, as it does not appear that the heirs or terre-tenants have been notified of the application.

The judgment of the court below is therefore reversed down to the petition, and the case remanded for further proceedings not inconsistent with this opinion.


text:
    ADMINISTRATOR OF JAMES VS. SCOTT.
    Where in the description of a bond in the plaintiff’s statement of his cause of action, there being no attempt to set it out in hcec verba, the words “ value received” were inserted, which were not contained in the bond as produced — the averment was held to be unnecessary, and did not vitiate the declaration.
    Error to the County court of Jackson county.
    In this case the plaintiff in error recovered a judgment before a magistrate in the county aforesaid on a note under seal, on which judgment there was an appeal to the County court.
    In that court, the plaintiff, as administrator of Lyman James, deceased, who sued for the use of Benjamin B. Coffey, declared against defendant, of a plea that he rendered to him thirty-five dollars, which to him he owed, and from him unjustly detained; for that on the seventh day of April, eighteen hundred and thirty-four, at said county, said defendant, together with one L. Wood, who was not sued in the action, executed his bond to the plaintiff, whereby he bound himself to pay plaintiff the sum aforesaid, by the first of January then next ensuing, for value received, which sum said defendant had not paid, or any part of the same, but had refused, &c.

      To this declaration defendant plead payment, with leave to give in evidence, and rely on any special matters, that might constitute a good plea in bar of a recovery; and a verdict was rendered in his favor.
    Pending the trial of the cause, the plaintiff tendered his bill of exceptions, which stated, that he offered in evidence to support his declaration, a bond signed by on© L. Wood and defendant, by which they promised, by the first day of January ensuing the date thereof, to pay to the plaintiff, administrator of L. James, deceased, thirty-five dollars, for house rent. The bond or sealed note was dated the seventh day of April, eighteen hundred and thirty-four, and was signed and sealed as aforesaid. This evidence was objected to by defendant, as the note described in the declaration was stated to have been given for value received. The objection was sustained by the court, and the bond excluded from the jury to which the plaintiff excepted, &c. This was assigned in error.
    Robinson, for plaintiff in error,
    cited Aik. Dig.- 261; 1 Porter, 13; 1 Stewart, 17; 2 Porter, 542; 7 Cranch, 408. All bonds and notes import value received — Aik. Dig. 283, s. 137.

      Hopkins & Parsons, contra.
   ORMOND, J.

— The decision of the court belo'W must have proceeded on the ground, that the words “value received” in the statement of the plaintiff’s cause of action, were a part of the description of the bond; when it was certainly nothing more than an unnecessary averment on the part of the pleader, that the bond was given for a valuable consideration, ‘which cannot vitiate: Admitting, that in cases of this kind the same strictness will be required in pleading, as in causes originating in the Circuit or County courts,' still, the decision of the court beldw cannot be sustained. This court, in the case of Harrison vs. Weaver, (2 Por. 543,) decided, that where the declaration described a note as payable to order,” when the note did not contain these words, the variance was immaterial — on the gfound that the legal effect of the note was, that it was payable to order— and they lay down as a test of such cases, that if the averment does not change the nature of the contract, but the legal effect continues the same, the objection cannot be made; and in support of their decision, cite (7 Cranch, 408.)

In this case, it is manifest there was no attempt to set out the bond in hcec verba; had that been the case, there would have been some plausibility in the objection.

The judgment must be reversed and the cause remanded.


author: GOLDTHWAITE, J.

text:
    COPEWOOD VS. TAYLOR’S adm’r.

      X- A defendant cannot be permitted after verdict to object to tbe character in which the plaintiff sues, nor can a court in reviving- a suit which has abated by the death of a party, constitute itself a judge of the facts alleged.
    2. A want of proferí ad curiam of the letters of administration, is not available; after verdict, to a defendant seeking to reverse a judgment obtained by an administrator; and the same principle must govern a case where an administrator is made a party after the abatement of a suit' by the death of the plaintiff.

      3. Where a party has contested a suit in the court below, he cannot be permitted to reverse a judgment obtained, because the record does not set out the particular defence which he insisted on when the cause was tried.
    4. Where a judgment provides that the plaintiff shall recover certain slaves mentioned in-the declaration, “ if to be had, or their alternative values,” as assessed by the jury — the words 'import no other meaning than to authorize the recovery of the ■slaves, and if either of the slaves cannot be had, then its value as assessed as aforesaid.
    Error to the Circuit court of Lawrence county.
    Peter W. Taylor, at September term, eighteen hundred and thirty-six, of the court aforesaid, declared against Copewood, in trover, for two slaves.
    At the March term of the said court, in eighteen hundred and thirty-seven, the death of plaintiff in the suit was suggested, and on motion, it was ordered by the court, that the said suit should stand revived in the name of Samuel Henderson, administrator of the goods and chattels, rights and óredits of said decedent.

      And thereupon came the parties, and a jury of good and lawful men came also, who being elected, &c. and Sworn the truth to speak upon the issue joined, upon their i oaths said, they found the issue for the plaintiff, and assessed the value of the boy Dick at one thousand dollars, and the boy Tink also at one thousand dollars, and damages for the detention of said negroes Dick and Tink at eight hundred dollars: It was therefore consid-( ered by the court, that the plaintiff should recover of defendant, the negro slaves aforesaid in the declaration mentioned, if to be had, or the alternative values assessed as aforesaid by the jury, together with the sum aforesaid of eight hundred dollars, damages for the detention of said slaves, together with the costs by him' about his suit in that behalf expended, &c.

      Hopkins & Parsons, for plaintiff in error,
    McClung, contra.
   GOLDTHWAITE, J.

— The errors which are insisted on, as sufficient to reverse the judgment rendered by the Circuit court are—

1st. Because the case was revived in an illegal mode, without proof that Henderson was the administrator of Taylor.

2d. Because there was no plea filed or issue joined, between the parties.

3d. Because the judgment authorizes the collection of the aggregate values of both the slaves, if one could be had and the other could not.

The court in reviving a suit which has abated by the death of a party, can no more constitute itself the judge of the facts alleged, than it could if the suit was originally instituted by an administrator. In the first case, the counsel makes the suggestion of the abatement, and introduces a new party on the record — and in the latter, the necessary allegations are made in the declaration. In either case, the defendant is at liberty to. contest the facts alleged, or to admit them, and deny their effect in law to charge him. But in neither case can he be permitted after verdict, to object to the character in which the plaintiff sues.

A want of proferí in curia, of the letters of administration is not available after verdict, and the same principle must govern a case, where a party is made after the abatement of the suit by the death of the plaintiff. If the defendant had not appeared to the suit when the new party was made, he did appear as the record informs us, at the trial of the cause, and for aught which we can know, may have formed an issue on this very ground. We are not informed what the issue was, but if on a plea in abatement, the verdict, if for the plaintiff, would properly be as it- now appears.

2d. The second assignment cannot be more available than the first. The earlier decisions of this court would sustain this assignment, but they have been overruled, and we think very properly so, by the case of Castleberry vs Pierce, (2 Stew. &. Por. 141,) which was recognized and confirmed in that of Wheelock vs Fitch, (3 Por. 387.) At the present day, it would savour of undue refinement to decide, that when a party has contested a suit to the utmost in the court below, he shall be permitted to reverse the judgment obtained, because the re-. cord does not state the particular defence which he insisted on when the cause was tried. To the appellate court, it is a matter of no importance whatever, what was the nature of the defence. Whether material or otherwise, the jury have declared it by the verdict to he unfounded in fact, and no ingenuity can present a view of this case, from which it can be perceived that any injury can result to the plaintiff in error, from the omission to spread his defence (whatever it was) on the record. There is no defence which he could have interposed, which would now avail him, and to permit him to reverse a judgment for the omission of that in the record, which if there, could not be reversed by him, would be grasping at the shadow and leaving the substance to sink. We do not fear that any difficulties will arise from thus declaring the law, but should cases occur in which the general rule will work an injury in any particular case, we doubt not but the ability of counsel will readily suggest a remedy.

We have been unable, from any consideration which we have given to the form of the judgment, to arrive at the conclusion that it authorizes the recovery of the value of both slaves, if one only can be had by the plaintiff. The words used cannot import any other meaning, as we conceive, than to authorize the recovery of the slaves, and if either of them cannot be had, then its value as assessed by the'jury.

The judgment of the Circuit court is affirmed.


text:
    WYATT et. al. VS. JUDGE et. al.
    1. Where a justice of the peace entered a judgment against a plaintiff, who failed to appear and prosecute his claim, in the words following, to wit: “ Judgment vs. plaintiff, by default for costs,” and signed by the magistrate, — it was held, that the judgment was not void for want of form, but that it was to be understood as a judgment of nonsuit against plaintiff, for not appearing to prosecute his suit. „
    2. Where the merits of a case are not considered by a justice of the peace, the justice may immediately issue fresh process, and proceed to final judgment.
    3. An appeal, or writ of error, lies only upon a judgment or final sentence of a court, and therefore where the judgment of a justice of the peace is not decisive of a plaintiff’s case, an appeal will not lie to the Circuit court.
    4. If an objection to the jurisdiction be not taken in the Circuit court, on an appeal from a magistrate, yet the Supreme court will do what the court below should have done, nor does a wrong reason given by the Circuit court for its judgment in such a case of appeal, necessarily authorize the reversal of the judgment by the Supreme court.

      5. A want of jurisdiction of the subject matter is not aided by a plea to the merits, and is available in the appellate court: and the consent of parties, whether express or implied, cannot give jurisdiction. ' '
    Error to the Circuit court of Autauga county.
    William F. Hansford,, a justice of the peace of Autau-ga county, issued a notice, addressed to Henry B. Judge, a constable of that county, and his securities in office, reciting, that the plaintiffs had theretofore recovered a judgment against John A. Whetstone, for the sum of twenty-eight dollars and fifty cents debt, and one dollar thirty-one cents costs, before David Golightly, a justice of the peace for the same county: — that execution was issued thereon, and placed in the hands of Judge, which he was required to execute and return, according to law; and though the day of its return was past, yet the mandate of the execution had not been obeyed: The notice then informed the constable and his sureties that a motion would be made, before the justice issuing the notice, at a time and place therein appointed, for a judgment for the debt and costs founded on the default of the former as above stated. At the time expressed in the notice, the justice rendered a judgment against the plaintiff in these words:
    “ William Wyatt, and others,
    vs.
    Henry B. Judge, and others.
    Judgment vs. plaintiff by default for costs, eight.y-one and one fourth cents.
    William F. Hansford, J. P.”
    From this judgment, the plaintiffs appealed to the Circuit court of Autauga, where the defendants demurred to the notice; and the demurrer being sustained, the plaintiffs sued a writ of error to this court.

      George GoldtJmaile, for the plaintiffs in error.
    Dargan, contra.
   COLLIER, C. J.

— Without pretending to inquire into, the sufficiency of the notice, we think the record shows that the Circuit court had no jurisdiction of the case-The judgment entered by the justice was certainly very informal, yet perhaps not more so, than we should often expect from a body of magistrates, usually selected, not with a regard to legal learning, but for their integrity and practical intelligence. By the “ default” of the plaintiff, we are to understand that he did not appear to prosecute his notice, in the same manner, as by the defendants “default,” he is said to come not and make de-fence : thus interpreted, the judgment rendered by the justice must be understood to be a nonsuit. The merits of the plaintiffs case, then, not being considered, he might immediately have issued another notice, and have proceeded to judgment against the defendants if the proof authorized it. If the judgment was not decisive of the plaintiffs case, we think it clear that it could not have been appealed from, otherwise the strange anomaly would follow, that, two suits for the same cause might be prosecuted in two distinct tribunals at the same time —the one before a primary, and the other before an appellate court. It has been determined not only here, but in all other revising courts, so far as our researches extend, that a writ of error or appeal lies only upon a final sentence or judgment. And we can discover no reason why this rule should not apply to appeals from justices of the peace, unless it could be shewn that there, judgments must be final, even where the plaintiff does not appear to prosecute his demand.

It may perhaps be thought, that inasmuch as this objection was not expressly made in the Circuit court, it should not be regarded here. We understand the law to be otherwise. It was the duty of the Circuit court mero motu to have repudiated the appeal—Sweet vs. Dow, (1 Root’s R. 409; S. P. 410-458;) and Williams vs Holcombe, (1 Car. Law Rep. 365.) — and it is certainly our duty to do what that court should have done. Suppose we were to reverse the judgment on the ground that the demurrer to the notice should have been overruled, we could not remand the cause to a court that could render no judgment upon t[ie matters in controversy. But conceding that the judgment of the Circuit court is founded upon an assumption which the law does not approve, yet inasmuch as that court should have dismissed the case, a wrong reason for its judgment does not authorize its reversal—Purnell et. al. vs Hogan, (5 Stew. & Por. 192;) Dawson vs Turner, (ibid, 195;) McGrew vs Toulmin, (2 Stew. & Por. 428.)

In Richardson vs Denison, (1 Aik. R. 210,) it was held that the want of jurisdiction was allowable in the appellate court, though not made below. To S. P. Cleveland vs Hopkins, (2 Aik. R. 394)—so in Eaton vs Houghton, (1 Aik. R. 380)—a want of jurisdiction of the subject matter was determined not to be aided by a plea to the merits. And the true doctrine is, that consent, whether express or implied, cannot give jurisdiction. Satis- _ fled that the Circuit court should not have entertained the case, its judgment must be affirmed.

GOLDTHWAITE, J — Not sitting.


text:
    MORROW VS. CAMPBELL.
    1. To excuse the performance of an express covenant, it mlist be shewn either that it is prohibited by law, or that its performance has become impossible by the intervention of causes which human agency could not prevent:
    2. And where one expressly covenanted to return a deed by a certain day, or pay a sum of money, — and alleged that he casually lost the deed before the day came about for its return: It was held that as the loss of the deed was not shewn to have been occasioned by any cause, which care and prudence could not have prevented, he could not be relieved from the performance of the alternative of thecovenánt.
    3. VVhere parties themselves have provided the terms on which their Contract shall be abrogated, neither can dispense with those terms, without the consent of the other.
    4. A party having the custody of a paper, may, upon first proving its existence by a disinterested witness, give testimony to 'the court of its loss, that secondary evidence of its contents may be let in to the jury,
    -5. But as a party is incompetent to be a witness in his own case, as to a material fact, he therefore cannot be allowed as a witness to give testimony furnishing an excuse for not returning á paper which he had covenanted himself to return on a certain day, or in case of failure to pay a sum of money.
    ■Error to the Circuit court of Morgan county.
    The plaintiff in error brought an action of covenant 'against the defendant, in the Circuit court of Morgan, upon an agreement under seal: which agreement, after reciting that the plaintiff, as the attorney in fact of 'George Gamble, had made to Charles W. Peters, a deed •to a patent machine (called the patent revolving washing

      machine,) for the Territory of Arkansas, bearing date on the fifteenth of March, eighteen hundred and thirty-three, —proceeded as follows: — “Which deed is delivered by the said Hugh Morrow, agent as aforesaid, to the said Charles W. Peters and William H. Campbell, on this condition, — that the said Peters and Campbell, are to have until the first day of October, eighteen hundred and thirty-three, to return said deed, made to said Peters, for the territory aforesaid, and said contract is to be null and void. If said deed is not returned,, said Peters and Campbell are to pay Hugh D. Morrow, agent as aforesaid, the sum of five hundred dollars, on, &c.” The defendant pleaded, “ covenants performed, with leave to give special matter in evidence.”
    The defendant proved to the jury, that Peters had notified the plaintiff, about the first of October, eighteen hundred and thirty-three, (but whether before or after that day, it was uncertain,) that he, Peters, would abandon his contract: He then offered to prove, by his own oath, that he had lost the deed mentioned in the agreement, in the Territory of Arkansas, before the first day of October, eighteen hundred and thirty-three. The plaintiff objected to the defendant, as a witness, to prove the loss of the deed, by his own oath: notwithstanding which, the defendant was sworn, — and stated, that he had lost the deed early in September, eighteen hundred and thirty-three — whereupon the plaintiff excepted, &c.
    The court charged the jury, that if they believed the deed was lost, and the plaintiff had notice of that fact, previous to the first day of October, eighteen hundred and thirty-three, — ,their verdict should be in favor of the

      defendant. To'which the plaintiff excepted, &c. And a verdict being found for the defendant, and judgment thereon rendered, the plaintiff brought his case to this court for revision.

      Hopkins Parsons, for plaintiff in error.

      McClung, contra.
   COLLIER, C. J.

— The charge of the court 'supposes that a rescission of the contract was permissible without an actual return of the deed as provided by the agreement ; and even by a loss of the deed and notice thereof to the plaintiff, previous to the first day of October, eighteen hundred and thirty-three.

For the purpose of ascertaining what was to be done by the defendant and Peters, to relieve themselves from their obligation to pay the plaintiff the sum stipulated, regard must be had to the terms of agreement. It no where declares, that a mere loss of the deed, though the plaintiff be informed thereof shall absolve them from their undertaking to pay — The court, then, in stating the law to the jury, erred in supposing the proof of these facts, should have that effect.

The parties agreed that the contract should be null and void, if the defendant and Peters returned the deed made by Gamble, (through his attorney) by the first day of October, eighteen hundred and thirty-three. In default of such return, they are to pay to the plaintiff five hundred dollars,- on, &c. Here is an alternative agreement, either to perform a certain act or pay a sum of money, and is an express covenant to do one of two. things — the omission to return the deed at the time appointed, makes absolute the undertaking to pay the money. And it is no answer to an action brought for the non-payment of the money, for the defendant to say, that I would have availed myself of its alternative, had not circumstances beyond my control prevented. To excuse the performance of an express covenant, it must be shewn, either that it is prohibited by law, or that its performance has become impossible by the intervention of causes which human agency could not prevent. To illustrate the latter excuse; if one rents a house which he stipulates to repair — if it be destroyed by lightning, he shall notwithstanding rebuild it; because this is possible. . But if one rent land, and covenant to re-deliver it to the landlord in as good a condition as when he received it; yet if the timber is prostrated by a tempest, he shall not be held to a performance; because the injury was a result beyond human prevention, and reparation impracticable. If, however, in the case last supposed, the tenant had suffered the fencing to be destroyed, and the fruit or ornamental trees to be injured by cattle, he would be responsible for the injury in damages.

In the casé at bar, the defendant does not bring himself within the principle of the cases, which relieve from the performance of express covenants. The loss of the deed is not pretended to have been occasioned by any cause, which care and prudence could not have prevented, and we cannot well conceive how it could have been lost, otherwise than from the want of carefulness. It has, however, been urged, that as the deed could sub-serve no purpose in the hands of the plaintiff, there could be no necessity for requiring its return before the rescission of the contract. Would not its retention place it in the power of the defendant to sell patent rights to the prejudice of the plaintiff’s interests ? Be this as it may, the parties themselves have provided the terms on which their contract shall be abrogated, and neither can dispense with them, without the consent of the other—McGehee vs Hill, (4 Porter’s R. 170;) Perry vs Hewlett, (5 Porter 318.)

But even if the charge of the court was unexceptionable, the evidence received in the court below, was clearly inadmissible. The bill of exceptions does not inform us whether the defendant’s testimony was addressed to the court or the jury, but as the fact he related was necessary (if available) to be shewn to the latter, we must infer that he gave evidence to the jury; more especially as it appears that there was no other evidence at all satisfactory to that point. The defendant did not propose to show the loss of the deed to the court, and thus lay the ground for the introduction of parol evidence of its contents. But the object of his testimony was to furnish an excuse for the neglect to return it to the plaintiff. That a party who has had the custody of a paper, may, upon first proving its existence by a disinterested witness, give testimony to the court of its loss, that secondary evidence of its contents may be let in to the jury, is well settled, at least, in this State—Bass vs Brooks, (1 Stew. R. 44.) But no authority within the range of our researches maintains the competency of a party to become a witness in his own cause, as to facts material to be shewn to the jury, either in the prosecution or de-fence of a cause. That this departure from the rules of evidence was tolerated in the present case, we are constrained to conclude.

The result of our inquiries is, that upon each of the points presented by the bill of exceptions, the Circuit court erred.

The judgment is consequently reversed, and the cause remanded.