Frierson v. Frierson , 21 Ala. 549 ( 1852 )

GOLDTHWAITE, J.

— It is urged, that, by a correct construction of the will of Thomas McRae, tbe plaintiff in error took a separate estate in tbe four slaves specified in tbe third clause; and this construction is attempted to be supported upon tbe succeeding clause, by which tbe testator declares, that, at the death of bis wife, bis negroes are to be divided between bis five daughters, share and share alike. But if this construction was adopted, it is clear that tbe plaintiff in error could not recover, as, by the clause last referred to, tbe division of tbe slaves was not to take place until after tbe death of tbe testator’s wife; and, as it is conceded that she is still living, the plaintiff in error could not have the entire interest in the slaves, and consequently could not maintain the action. Miller v. Batman, 11 Ala. 609.

But this construction of the will cannot be supported. The testator, by the first clause, makes a specific and absolute bequest to his wife of sixteen negroes, and then, after certain specific legacies to his children, follows the residuary clause, giving to his wife the remainder of the estate, both real and personal, during the term of her natural life, with the direction, that no sale or alteration of the plantation, stock or household furniture, or any other thing, should be made until her death; that then, it is his will, that his negroes be divided between his five daughters, share and share alike, for their use, during the term of their natural lives, and not subject to the debts of their husbands, and at their deaths, to their heirs forever; and that the residue of his estate, both real and personal, be divided among four of his daughters, whose names are specified, share and share alike. It is, we think, perfectly clear, that the negroes which are referred to in the last clause mentioned, and which, at the death of his wife, are to be divided among his daughters, are the slaves which are given to the wife by the sicecific bequest; or, if he left other slaves not specifically bequeathed, it might include such slaves only; but after giving to one daughter eleven negroes, to another four, and to another two, there is no reasonable or sensible construction, which would authorize us to infer that these legacies were to be revoked, and that his entire negro property was to be divided amongst the five daughters equally.

IJpon the supposition, that the slaves which the daughters were to take after the death of the wife referred to the slaves given to her by the first clause of the will, the only inconsistency is, in giving a life estate to the wife, instead of a fee simple; while on the other hand, the construction insisted upon would operate as a revocation of several specific legacies, and make an entirely different appropriation of a large portion of the estate. Our conclusion, therefore, is, that the four negroes were a present, specific and absolute bequest, and that, under the will, the plaintiff in error would take a separate estate in those slaves only which, by its terms, she was to take at the death of the testator’s wife.

But it is urged, that, even if the will of Thomas McRae did not invest the plaintiff in error with a separate estate in the slaves sued for, it appears from the record that evidence was offered, on the trial below, tending to prove that the testator of the defendant in error, who was the husband of the plaintiff in error, had admitted her right to the slaves in controversy. hired them from her, and permitted one of them, at her request, to remain in the possession of her son by a former marriage, nearly or quite twelve years; and that the court erred, in instructing. the jury, that they could not, from evidence of that character, infer that he had conceded the exclusive right to the slaves to be in his wife. The rule is well settled, that at law, where the title to the property has vested in the husband, as in the case of a gift or bequest to the wife, no contract which he might afterwards make directly with her, and a fortiori no declaration or admission made by him during coverture, can vest the property in the wife, so as to enable her to maintain or resist an action by or against the representative of the husband. Machen v. Machen, 15 Ala. 373; Gamble v. Gamble, 11 Ala. 966. The decisions which we have referred to are conclusive upon this point, and apply with the same force to the slave which was permitted to go into the possession of the son of the plaintiff in error, as to the other slaves. His possession was not adverse to the husband; and the length of time he may have retained him, under the contract with or concession to the wife, did not invest her with the legal title.

In relation to the objection which is founded on the ruling of the court below in admitting parol evidence, to explain the will of Thomas McRae, we are satisfied that it was irrelevant ; but as it could only have been offered to show that the plaintiff in error did not take a separate estate in the slaves sued for, and as the will, under the construction which we have given to it, was conclusive upon that question, without the aid of - such evidence, no prejudice could have resulted to the plaintiff in error from its admission. The admission of irrelevant testimony will reverse, unless the record clearly shows that no injury could have resulted. It is not enough, that the court is not able to discover injury; it must see, and see clearly, that none could have resulted. If, for instance, tbe whole of tbe evidence objected to could be withdrawn, and the party in whose favor it was offered still be entitled to a verdict, it is apparent that the opposite party could not, in such a case, be prejudiced by its admission. This was the situation of the case under consideration. The will referred to showed, upon its face, that the plaintiff in error was not entitled to a separate estate in the slaves which she was attempting to recover, and the evidence objected to was cumulative, upon a point that was established as a legal conclusion from the other facts of the case.

There is no error in the record, and the judgment is affirmed.