Wilson v. Smith , 10 Md. 67 ( 1856 )

Le Grand, C. J.,

delivered the opinion of this court.

This was an action of replevin, instituted in the circuit court for Calvert county, on the 30th day of April 1850, for the recovery of negro woman named Milly, claimed by the' plain tiff as the property of Samuel Owens, late of that county. The usual pleas in replevin were filed, including actio non accrevit infra tres annos.

The plaintiff proved that Samuel Owens died in Calvert county in the year 1815, and that it no where appeared among the records of the register of wills of said county that any letters testamentary, or of administration, were ever granted upon

the estate of Samuel Owens, or other proceedings had in reference thereto, prior to the appointment of the plaintiff as administrator ad colligendum. The plaintiff also proved that up until the time of his death, Samuel Owens occupied and worked a piece of land, the annual rent of which was about $150, and that he had farming utensils, household furniture, and certain negroes, among which was Milly. The defendant then gave in evidence the will of Owens, by which he devised, for life, to his wife, Mary, all his property, real and personal, with remainder to his children and grand-children, and declared his wish to be that his wife should be administratrix. And also that Samuel Owens, at the time of his death, was indebted to the extent of $178, which debts, prior to 1828, were paid off by one Richard Hance, at the request of the widow, Mary, and that sometime after the payment of the debts, she executed, on the 7th day of October 1828, a mortgage to Hance of certain property of her late husband, to secure said Hance against loss by said paymeirt. That Samuel Owens, at the time of his death, had the following named children and grand-, children, viz: Sarah Owens, who was fourteen years old at the death of her father, and who, in 1824, married William T. Wilson; Mary Owens, who was twenty-five years old when her father died, and who, ten or fifteen years after her father’s death, and before 1828, married Enoch Neale; and Francis Hollingshead, and Samuel and Mary Hollingshead, children of Francis and Rebecca Hollingshead, the latter a daughter of Samuel Owens, who died before the said Samuel; that Sarah and Mary Owens lived with their mother until their respective marriages; that Francis Hollingshead and his children (who were then minors,) lived on a farm adjoining that of Samuel ■Owens, at his death, and that they removed to Baltimore in 1823; she (the defendant) proved that in 1834 the said widow, Mary Owens, sold the woman Milly, with others, issue of Milly, born after the death of Samuel Owens, to a certain Abraham Lowe, as slaves for life, and executed a bill of sale for the same. To this bill of sale William T. Wilson, son-in-law of Mary Owens, was a witness. Lowe held possession 'of the woman, Milly, up to the time of his death, claiming her as his slave for life. After his death the woman was distributed as a portion of his estate, and came into possession of Mrs. Ireland, wife of Benjamin Ireland, as one of the distributees of said Lowe. In 1847, she was sold at public sale by B. Owens, administrator of Ireland, as part of the estate of the latter. The defendant became the purchaser, and retained possession of the woman until the bringing of this action. It was also proven, on behalf of ihe plaintiff, by the witness, Richard Hance, that at the time of She execution of the mortgage to him, some conversation took place between him and Mary Owens, as to her right to make the mortgage without administration upon the estate of Samuel Owens, in which she said, there was no necessity for administration, that it was only necessary to pay off the debts, that ail would be settled without it; and, further proved by the same witness that he never dealt with her as executrix or administratrix. There was other evidence adduced on the part of the plaintiff, whereby it appeared, that in the year 1834, Abraham Lowe had said, he had purchased some negroes from Mrs. Owens, and was going to send a cart for them, and on being informed there had been no letters of administration granted on the estate of Samuel Owens, and that she had no right to dispose of them, he declared he did not care, that Mrs. Owens owed him a large bill, and if he got the negroes into his possession, he would take care of himself.

The plaintiff offered to the court three, and the defendant one prayer; the latter was granted, and the others rejected. In this ruling we think the court fell into error. The prayer on the part of the defendant does not present all the facts, but only a part of them, studiously excluding all allusion to the evidence in regard to the stale of the records of the register of wills, and of the declarations of Mrs. Owens and Lowe, that no letters of administration had been granted. Although it is the right of a party to segregate a portion of the testimony in a cause, and ask the opinion of the court upon it, (1 Grill, 127,) yet the court will not grant such instruction, if it be such as will likely mislead the jury; and we consider the direction asked on the part of the defendant of such a character. It not only told them they might, in direct opposition to the record and proof, presume the granting of letters, but they ought to presume their existence. If there were no other objection to the prayer, its imperative direction to the jury would be fatal; but there are others to which we need not refer, as this one is sufficient.

Judgment reversed and procedendo awarded.