Pool v. Harrison , 18 Ala. 514 ( 1850 )

CHILTON, J.

This case was before this court at a previous term. — 16 Ala. 167. We have carefully examined the opinion in that case, and find that it covers the material points raised upon the record before us. We think it very clear that the unqualified surrender by Pool to Kirkland Harrison, the administrator, of the slaves in dispute, as assets of the estate of Richard Harrison, deceased, and the subsequent distribution of them among the next of kin, without any objection from him, all which was done by order of the Orphans’ Court and with Pool’s concurrence or rather without objection from him, completely estops him from afterwards claiming the slaves, as against the administrator. The pleas which set up this estoppel were good, and are fully sustained by the previous decision made in this cause. — 16 Ala. 175, et seq. Nor does it make any difference whether said slaves were surrendered upon the demand of the administrator or were voluntarily brought forward and delivered by Pool without such demand; nor whether the administrator regarded them as property of said estate, and so returned them in his inventory, before such delivery was made. The gist of the estoppel is that Pool delivered thenr to the administrator as assets for distribution, and they were accordingly distributed. He should not then be heard to complain against the administrator, and hold him liable for the consequences resulting from his own act. But it is unnecessary to elaborate this point or to cite authorities in support of it. It is very clear the pleas of estoppel, pleaded as they were in short by the consent of counsel, were substantially correct, and the several replications to them were bad.

As to the joint replication to both these pleas, it did not deny the estoppel, but avered that the plaintiff was entitled to the slaves by the will of Richard B. Harrison, thus going behind the estoppel, and attempting to set up the claim upon which the estoppel operated as valid notwithstanding. — 1 Chitty’s Pl. 604.

But if it were allowable in the case before us, the replication shows the plaintiff had no title, which he could assert against the personal representative of the estate of R. B. Harrison. The will makes him a trustee of the slaves sued for, for the use of other slaves attempted to be emancipated by the will. Several decisions of this court are in point to show that such a bequest cannot be supported, as it contravenes the law of the land. We consider this point as concluded by Alston v. Coleman et al., 7 Ala. 795, and Trotter v. Blocker, 6 Port. 269. In the case first cited, the testator attempted to emancipate a slave by his will and declared a trust for her benefit in the sum of $1500, to be used for her benefit at the discretion of his executor, but it was held that the will was ineffectual to emancipate the slave, and to be well established by the authorities, that the trust created for the slave’s benefit was illegal, and that it fell into the residuum of the estate; citing several authorities to show that the trust was void. — See also, 9 Ala. 481; Welch’s Heirs v. Welch’s Adm’r, 14 ib. 76; Carroll & Wife v. Brumby, adm’r, 13 ib. 102. We conclude, therefore, that this trust is void, and the property so bequeathed falls into the residuum of the estate for distribution.

The only remaining point is the action taken by the court upon the interrogatories, filed by the plaintiff for discovery, under the statute. — Clay’s Dig. 341, § 160. We think the court had the discretionary power to allow the defendant to answer after the expiration of the sixty days named in the statute, and to allow him to amend the answer filed by him, there appearing a sufficient excuse, in the estimation of the primary court, for granting such indulgence. This being the exercise of a discretion on the part of the court below, this court will not reverse it. This view harmonizes with the decision made by our predecessors in the case of Goodwin, use, &c. v. Harrison, 6 Ala. 438.

We are unable to perceive any error in the record, and the judgment is consequently affirmed.