Adams County MsArchives Court.....Lowry, Mr 1839
************************************************
Copyright.  All rights reserved.
http://usgwarchives.net/copyright.htm
http://usgwarchives.net/ms/msfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 8:38 pm

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Lowry v. Houston.

pages 394-397

The husband is entitled to a vested legacy of the wife, although not reduced 
into possession during coverture, and the purchaser of the same from the 
husband will acquire a good title.

An assignment of the wife's choses in action by the husband during the 
lifetime of the wife, for a valuable consideration, has been repeatedly held 
to be valid.

It seems that the husband is considered as the next of kin to his wife, by 
relation of marriage, and takes her property as such in case of death; but 
whether so considered or not, her personal property, remaining after death 
goes to her husband, either jure mariti or as next of kin.

In an action of detinue the rule is, that, although possession by the 
defendant must be proved, yet it is not necessary, that it should be continued 
up to the time of the commencement of the suit, and the plaintiff will be 
entitled to recover, unless the defendant has been lawfully dispossessed.

A judgment against the administrator can operate as a lien only upon the 
assets in his hands; and where he wrongfully delivers up possession of 
property which is not assets, detinue will lie against him for its recovery, 
in as much as he is not lawfully dispossessed thereby.

ERROR to the circuit court of Adams county.

Webber and Rawlings for the plaintiff in error.
Montgomery and Boyd, contra.


Mr. Justice TROTTER delivered the opinion of the court.

This is an action of detinue, to recover three slaves claimed by the defendant 
in error, under a purchase from one Oliver H. Allen. The bill of exceptions 
which was taken on the trial in the court below, exhibits the will of Mrs. 
Margaret M’Connel, under which Allen derived his title to the negroes in 
dispute. In her will she devised a tract of land, and bequeathed several 
negroes to her two grandchildren, William G. M'Connel and Margaret Caroline 
Allen, the wife of the said Oliver H. Allen, with a provision that if either 
of them died without issue, the property bequeathed should belong to the 
survivor. In the division of the slaves, the three in controversy were given 
to William G. M'Connel. He died without issue, before the death of Mrs. Allen. 
The guardian of William M'Connel delivered to Lowry, who had become his 
administrator, the three slaves sued for. Allen sold the same to Houston, 
without having reduced them into possession. He survived his wife. A verdict 
was found for the defendant in error in the court below, and judgment rendered 
in his favor for the slaves.

The plaintiff in error now insists that the judgment is erroneous for two 
reasons.

1. Because the sale to Houston by Allen could not vest in him such a title as 
will support detinue.

2. Because the court erred in rejecting the evidence offered of the judgment 
against Lowry as M'Connel's administrator, and the execution on it, by which 
one of the negroes was seized and sold.

In support of the first objection, it is urged, that the slaves being the 
property of Mrs. Allen, under the will of her grandmother, her husband had no 
title to the same until he reduced them into actual possession. In this case, 
the slaves were bequeathed to Mrs. Allen, and the legacy became a vested one 
upon the death of William G. M'Connel, and it was not necessary that the 
property should be actually reduced into possession by her husband, in order 
to secure his title. It was complete by the bequest, and the death of William 
M'Connel. In the case of Bunch v. Hurst, 3 Dessaussure, 289, it was held that 
the husband is entitled to a vested legacy of the wife, though not reduced 
into possession during coverture, it being vested in interest, though not in 
possession, was sufficient. The same point is decided in the case of Elms v. 
Hughes, 3 Dessaussure, 160. In that case, the chancellor held, that as the law 
stood prior to the act of 1791, of the State of South Carolina, there could be 
no doubt that the husband takes the personal property of the wife, though not 
reduced into possession. In the note of the case of Griswold v. Pennyman, 2 
Conn. Rep. 564, as stated in the note of the American editor of Toller's Law 
of Executors, p. 220, (edit. 1834,) it appears to have been held in 
Connecticut, that a share of personal property, accruing in right of the wife, 
vests absolutely in the husband, even before distribution, and does not, in 
the event his prior death, survive to her. The same point was ruled in the 
court of appeals of Kentucky, and it has there been repeatedly held, 
that "actual enjoyment of a chattel which accrued to the wife before marriage, 
is not necessary to vest her interest in her husband if he survives, as 
slaves, whilst in the possession of the tenant for life, for his possession is 
not adverse. Pirtle’s Dig. 499. These adjudications settle this question 
conclusively, as it is believed, in favor of the title of Allen. The present 
is surely as strong a case as the one referred to in Kentucky, where the 
tenant for life had the possession of the property at the death of the wife. 
It is the case of a vested legacy, and it was not necessary to the title of 
Allen that he should have had the actual enjoyment of the negroes in the 
lifetime of the wife. It is the case of a vested legacy, and it was not 
necessary to the title of Allen that he should have had the actual enjoyment 
of the negroes in the lifetime of the wife. By the death of William M'Connel, 
these slaves became his property, and he, therefore, had the constructive 
possession, and he had an undoubted right to sell them.

If these views be correct, the property in question cannot be considered in 
the light of the wife's choses in action. But if such was the case, it is yet 
believed that the sale by Allen was valid. An assignment of the wife's choses 
in action by the husband, during the lifetime of the wife, for a valuable 
consideration has been repeatedly held to be valid. In the case of Schuyler v. 
Hayle, 5 Johns. Cha. Rep. 196, it was determined that the husband may, for a 
valuable consideration, transfer his wife's choses in action, free from the 
wife's contingent right of survivorship. In the case of Stewart v. Stewart, 7 
Johns. Cha, Rep. 229, it was decided also; that the husband may be considered 
as the next of kin to his wife, by relation of marriage, and as taking her 
property in case of her death as such, but whether so considered or not, her 
personal property remaining after her death, goes to the husband either jure 
mariti, or as next of kin. So in the case of Hamrico v. Laird, 10 Yerger's 
Rep. 222, the Supreme Court of Tennessee put the right of the husband to the 
wife's choses in action, upon the common law, as it stood prior to tho 
declaratory act of 29th Charles 2. The subject was elaborately discussed in 
argument. and it was insisted that as no act similar to that of Charles 2d had 
been adopted in Tennessee, the husband was not entitled to his wife's choses 
in action, unless he reduced them into possession during the coverture. But 
the court said it was now too wel1 settled to be controverted, that the right 
of the husband arises jure mariti, and not on the consideration of his being 
the next of kin. The case before noticed in South Carolina takes the same view 
of this subject. The act of 1791 introduced a new rule, and it was under that 
statute that the case was decided. It is, therefore, no authority for the 
doctrine insisted on by the counsel for the plaintiff in error. On the 
contrary, the chancellor expressly states, that, as the law stood prior to the 
act of 1791, the husband is entitled. Our statute of distributions silent on 
this subject. The husband, by statute, is entitled to administer on his wife's 
property; but there is no provision which determines the character of his 
title, where, as such, he has reduced it into possession. His rights are 
determined by the common law, and we have seen that, by its provisions, he 
holds it as his own. We are, therefore, of opinion that the sale to Houston 
conferred a good title upon him.

In relation to the second objection, it may be remarked that the rule is, that 
though possession by the defendant must be proved, yet it is not necessary 
that it should be continued up to the time of the commencement of the suit, 
and the plaintiff will be entitled to recover, unless the defendant has been 
lawfully dispossessed. The judgment against Lowry, as the administrator of 
William G. M'Connel, could operate as a lien only upon the assets in his 
hands. But these slaves were not assets, and, of course, not subject to the 
execution; and this fact was well known to Lowry, who yet voluntarily 
surrendered one of Houston's slaves to the officer. He was not, therefore, 
lawfully dispossessed of the slave sold under this execution, and the court 
below was right in rejecting this evidence.

The judgment of the circuit court must, therefore, be affirmed with damages, 
&c. 

Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

File at: http://files.usgwarchives.net/ms/adams/court/lowry35gwl.txt

This file has been created by a form at http://www.genrecords.org/msfiles/

File size: 9.9 Kb