Adams v. McMichael , 37 Ala. 432 ( 1861 )

R. W. WALKER, J.

-It was decided by this court, at the -term before the last, ia a case brought by the children of -Mrs, Henderson .to -recover these slaves, that the remain* -der t© them was, according to the law of Georgia, void. Adams v. Henderson, 35 Ala. 723. The question now pre* sented is, did these slaves revert to the donor, on the death of his daughter, Mrs. Henderson ?

If we were at liberty to decide this question according to our own convictions of what the law should be,.we might, perhaps, hold that, the remainder -which the donor sought to create being void ctb initio, the slaves reverted to him. by operation of law. Keyes, in his -work on Chattels, lays down the doctrine, that gtuasi reversions of chattels personal exist in all cases, both at law and inequity, in which partial interests alone are created in-them j.,and in-all cases ia which partial interests are created, .with limitations over which fail to tabe effect, or which,are void ctb initio, or which subsequently become void. And he says, that the operation of this rule is not prevented by the fact, that there is a manifest intention on the part of the donor to dispose* of the whole interest; unless, .indeed, the conditional- limitations which are originally void, or--fail to take effect, are engratted upon interests in.the first takers, which, in the absence of such conditional limitations, would be held to be absolute interests. — Keyes on Chatt. §§ 275-6, 280-1. This opinion seems to be sustained by adjudged cases, both in. England and the United States. — Brown v. Kelsey, 2 Cushing, 243; Cresswell v. Emberson, 6 Ired. Eq. 151; James v. Masters, 3 Murphy, 110; Green v. Ward, 1 Russ. 262 ; Andree v. Ward, ib. 260. See, also, Geiger v. Brown, 4 McCord, 427-8.

On the other hand,, respectable authorities maintain the proposition, that .where the donor of a chattel manifests an intention to part with his whole interest,, .if the limitation over is either originally void, or incapable of- vesting when the contingency happens, the whole interest vests in the first taker. — Powell v. Brown, 1 Bailey, 100 ; Harris v. McLaran, 30 Miss. 533, (570, 573.)

But we are not at liberty, in the present case, to inquire which of these rules -is •• btest supported by reason and good sense. The gift was - made in . Georgia, and the rights of the parties to this controversy .must be determined-, by the law of that State..

In Yarborough v. West, (10 Geo. 471,) it appeared that John Wingo had made a parol gift of a slave to his daughter, Jincy West, during her life, with remainder to her children : and that after the death of Jincy West, her husband, John West, promised the donor, Wingo, that he would hold the slave in trust for’her'children. West afterwards sold the slave, and the children filed a bill in equity against him, to recover the value of the property. The court held, that the parol remainder to the children was void ; and, in answer to the argument, that they were entitled to recover upon the promise which John West' made after-the death of- his wife, used this language “But it is further insisted, feat notwithstanding this limitation over to the children of Jincy West, by the parol gift of John Wingo, -may be void as to them; yet it'is alleged, that'after the death of Jincy West,-John West, her husband, most faithfully promised-John Wingo, (who-demanded the possession ¡of the slave Peter, for the children of his daughter Jincy, by virtue of. said gift,) that be would hold and manage the said boy Peter in trust for the benefit and use of the said children. By the parol gift, fee title to the slave Peter vested in Jincy West, the wife of John West, and, consequently, became the property of her husband, by virtue of his marital rights; the gift being by parol, no interest in the slave Peter vested in the children, who were the persons to take in remainder under that parol gift. Supposing John West to have been fully cognizant of his legal rights at the-time of the alleged promise made by him to John Wingo, in regard to the slave Peter, yet. there was no consideration to support the promise; the title to the property teas already vested in Mm bylaw, and was not at that time either in John Wingo, or the children, according to the judgment of the court in Kir7c-patrieh v. Davidson.. In -order to raise a trust by the agreement' of a party, which a court of equity will execute, it must-be founded.on some meritorious or some valuable consideration. — 2 Story’s Eq. 235, § 973. Tbe only consideration - which. we can discover, to support the alleged .premise or agreement, is, that West should have the privilege oí retaining the possession of his own property.”'

Accepting this decision as a correct exposition of the rule of law which prevails in Georgia, we must hold, that the effect of the gift which was made in this case was to vest the absolute interest in the slaves in Lucinda Henderson j and that, by virtue of his marital rights, they became the property of her husband, and.did not, on her death, revert to the donor.

■Judgment reversed, and cause remanded.