Merriwether v. Eames , 17 Ala. 330 ( 1850 )

PARSONS, J.

It appears by the bill of exceptions that Zachary Merriwether, the father of the wife of John H. Merrswelher, under the latter of whom the plaintiff in error, whose name also is John H. Merriwether, claims the slave in controversy, early in the year 1835 sent the slave with her clothes and bedding in his wagon to the house of John H., his daughter’s husband, without any expression of his intentions at any time; that the slave remained there until some considerable time after the death of Zachary Merriwether, which occurred in January 1836, during which time the husband continued in possession and control of the slave as his own; but it appears that Zachary Merriwether’s daughter had been married about twenty years to John H. Merriwether, her husband, at the time the slave was sent.

The question which we have first to consider is this — Will the law upon these facts presume a gift? There was a good and usual Consideration for a gift — his natural love and affection for his daughter. There was also an act on his part, the act of sending the slave to his daughter’s house and of permitting her to remain there as long as he. lived, which clearly indicated an intention to give his daughter some benefit in the slave. The law would certainly presume to this extent. Hence the true question is, Will it presume a gift or some less benefit? For the sake of certainty if for nothing else, we think a gift sh.ould be presumed; for if we should hold that a smaller interest should be inhered, then the extent of that interest is entirely uncertain. There was an act and a motive or inducement for it which were evidence of an intention to give, and if they amount to prima facie evidence of that intention then the legal presumption of a gift is clear. In the absence of any explanation, it is but reasonable .to presume that all persons intend the most that can fairly be inhered from their deliberate acts. If the act may indicate more than was intended, they have the power to give the necessary explanations. If these be omitted, the omission must be presumed to be intentional. There could be no controversy upon this question if this negro had been sent soon after the daughter’s marriage. In that case all' the authorities shofr that a gift would be presumed, unless the wife’s father could show that such was not his intention. But we think the law will presume an intention to make a gift from such acts, whether the daughter has been married for a long time or but recently; though the presumption may not beso strong in the former case as in the latter, and less would remove it. The presumption of a gift is stronger if the daughter has been lately married, because that is the usual and appropriate time to make an advancement for a daughter. Yet it is very natural and perhaps usual for a father to assist his daughter by a gift of what she needs long after her marriage, when her necessities or his fortune may have increased.

There was some criticism at the bar upon the bill of exceptions ; and indeed the charge requested and refused appears not to be appropriate to the whole case. But the charge-that was given must have misled the jury in respect of the legal effect of the facts which we have considered, and for this the judgment must be reversed and the cause remanded.

• The charge that was given did not extend to the other facts stated in the bill of exceptions, and for that reason we have not adverted to them.