Little v. Birdwell

Wheeler, J. The grounds relied on for a reversal of the judgment are, 1st. That the District Court had not jurisdiction of that case. 2nd. That the Court erred in the charge to the jury, and in refusing instructions asked by the defendants. 3rd. That a new trial ought to have been granted upon the affidavit of certain of the jurors. The jurisdiction of the Court is clearly maintainable on the authority of Howze v. Howze, (14 Tex. R. 232,) and the cases there cited. The defendants contested the plaintiff’s title, and set up title in the wife; first, to the property absolutely, as the separate property of the wife; secondly, to a life estate in the wife, under the provision of the will of the plaintiffs’ ancestor. Either pretension, on the part of the defendants, entitled the plaintiffs to sue for the maintainance of their right in the District Court. It cannot be questioned that the jurisdiction conferred upon that Court by the law of its constituí tion and organization is sufficiently comprehensive to embrace this case. And, although it may be a case of which the Probate Court could take cognizance, that would not necessarily conclude the right of the District Court to entertain jurisdiction. These Courts may have concurrent jurisdiction in certain cases. But in cases, like the present, where questions of title are involved, or the decision of the case brings in question the construction of a will, it is proper to invoke the jurisdiction of the District Court, as the more appropriate tribunal for the adjudication of such questions. (Smith v. Smith, 11 Tex. R. 102, and cases cited; Parker v. Parker, 10 Id. 83 ; Purvis v. Sherrod, 12 Id. 140.) — 607 — The charge of the Court complained of was to the effect, that the inventory returned by the widow was conclusive evidence against her upon the question of title, unless she acted in ignorance of her rights. And we are of opinion that this charge is not correct. The contrary was held in the case of White v. Shepperd. (16 Id. 167.) The effect to be given to the inventory, in cases like the present, has been brought under discussion in several cases lately decided; and the result of these cases is that the inventory thus returned is to be deemed but prima facie evidence of title in the estate, which may be rebutted by proof that, in point of fact, the title was not in the testator or intestate, but in another. (Carroll v. Carroll, and Cheatham v. Burnham, lately decided at Galveston.) The widow was not estopped or concluded from asserting her right of separate property, although she had returned an inventory of the property as belonging to the estate of her deceased husband. Nor was it necessary, in order to admit proof of her title, that it should appear that, in returning the inventory, she acted in ignorance of her rights. The Statute (Hart. Dig. Art. 1151) declares that the inventory shall not be conclusive, if it be shown that the property was not separate or common property, as specified therein. It does not make the right to show by proof the true state of the title, depend upon the knowledge or ignorance of the state of the title, by the party, at the time of returning the inventory. Its effect is to make the inventory, but prima facie evidence as against the party, that the title is as represented in the inventory. And so it would be, it is believed, on general principles. It is not an estoppel in deed; and to constitute it an estoppel in pais, the admission it contains must have been acted on by others, who would be prejudiced in consequence, were the party who made the admission permitted to retract it. It must be such as that good faith and fair dealing towards others, who have received it as true, and acted upon it, forbid that it be retracted; which does not appear to be the — 608 — «ase in this instance. The defendants' evidence of title was admitted without objection ; and the material question to be determined is whether it was sufficient to have warranted a different verdict, had there been no error in the charge of the -Court. We are of opinion that it was not. It is to be observed that the act or declaration, relied on as evidencing a transfer of title, occurred in a State where the Common Law prevailed, and its effect is to be determined accordingly. The declaration of the husband was, that if the money was paid upon the wife's order, the negro should be hers. The import of the language was rather to create an obligation or duty on the part of the husband to vest title In the wife, than to evidence a present transfer of the title. If it be admitted that the language evidenced an intention to vest the property in the wife for her separate and exclusive use, which would have been necessary to constitute it her separate property by the Common Law or the law of Alabama, (Nimms v. Davis, 7 Tex. R. 25, and authorities cited,) yet, it is conceived, it would not be held in that State to operate a present transfer of the property, or to create an obligation which a Court of Equity would enforce. Although Courts of Equity will sustain a gift by a husband to the wife which amounts only to a reasonable provision for her, yet they require clear and incontrovertable evidence to establish such gift as matter of intention and fact. (2 Story Eq. Sec. 1375.) If the wife was entitled to have a provision made for her sole use on account of the appropriation of her money by the husband, it would only be of the sum thus appropriated, and it does not appear what that sum was. It may have been an inconsiderable amount. Possibly, if it appeared that it was of value sufficient, it might have been held by a Court of Equity, under the circumstances, that the property in the negro should be secured to the wife, or some equivalent provision should be made for her out of property of the husband. It has been ruled that where property of the — 609 — wife has been reduced into possession by the husband, yet if it appear that he did not intend to convert it to his own use, it is in law the property of the wife. (Hind’s Estate, 5 Whart. 138.) And although the rule is that reduction into possession by the husband of his wife’s dioses in action is prima facie evidence of conversion to his own use, yet the presumption of intention may be repelled by disproof of the fact in the particular instance. (8 Barr. 191-2.) But the material question to be here determined is whether there was an actual transfer to the wife of the property in question ; and we think it must be held that there was not. It cannot, we think, be maintained, upon the evidence which the record discloses, of the mere oral declaration of the husband, unattended by any corresponding act, evidencing a transfer of the property in fact, that the wife acquired the title in the State of Alabama. In Bradshaw v. Mayfield, (12 Tex. R. 26,) this Court said, “Yerbal sales and gifts, between husband and wife, ought not to be admitted, unless on clear and satisfactory proof that the property was divested out of the vendor, and vested in the vendee or donee.’’ The case of Avery v. Avery, (12 Tex. R. 54,) goes farther, perhaps, than any other decided by this Court to maintain the right of the wife in this case. But, in that case, the husband, having removed from Georgia to the State of Louisiana, there had the title made to his wife, which the husband, in this case, declined to do, and it was on that title that her right was maintained. The equities of the wife, in that case, were as strong as in this ; but they were not supposed to invest her with the title. The wife’s claim of title derives no aid from what subsequently transpired in Mississippi and Louisiana. In the former State, the husband proposed a disposition of the slave as his own property ;,and in the latter, although he seems to have contemplated asserting title-in his wife, if it should become necessary to protect the property from his creditor, yet when it was proposed to him to execute a deed to his wife, which — 610 — he ought unhesitatingly have done, if it was his bona fide intention to secure the property to her separate use, he declined to do so. In fine, the evidence of title relied on, is of too equivocal, indeterminate and unsatisfactory a nature to amount to proof suEcient to establish a right of separate property in the wife. Had the jury so found, their verdict must have been set aside as not warranted by the evidence. The error in the charge, therefore, becomes immaterial, since it cannot have operated to the prejudice of the defendants. (James v. Thompson, 14 Tex. R. 463 ; 15 Id. 34 ; 18 Id. 811 ; Id. 21; 17 Id. 408.) it is further insisted that the Court erred in refusing instructions asked by the defendants, to the effect that the limitation in the will of the life estate of the widow, during her widowhood, is a condition in restraint of marriage, and therefore void. The general result of the modern decisions in the English and American Courts, upon 4his subject, is thus stated by Judge Story: “ Conditions, annexed to gifts, legacies, and devises, in restraint of marriage, are not void, if they are reasonable in themselves, and do not directly or virtually operate as an undue restraint upon the freedom of marriage. If the condition is in restraint of marriage generally, then, indeed, as a condition against public policy, and the due economy and morality of domestic life, it will be held utterly void. And so, if the condition is not in restraint of marriage generally, but still the prohibition is of so rigid a nature, or so tied up to particular circumstances, that the party upon whom it is to operate, is unreasonably restrained in the choice of marriage, it will fall under the like consideration.” (1 Story's Eq. Jur. Sec. 280.) But while conditions in restraint of marriage are held to be void, it is otherwise with limitations of the use of the thing given or bequeathed, until the donee or legatee shall marry. Such limitations of the use are not deemed to be in — 611 — restraint of marriage, and are lndd valid. Tims, it has been said, “We must, however, be careful not to confound limitations with conditions ; for limitations may be good, notwithstanding they are seemingly in restraint of marriage; and were so by the Civil as well as the Common Law. As, for instance, where the meaning of the testator is not to forbid marriage, but to grant the use of the thing bequeathed until the legatee shall marry; (Swinburne, part 4, Ch. 12, Sec. 6 ;) or where the prohibition of marriage is not made conditionally by this word, if, (as I make thee my executor if thou dost not marry,) by other words or adverbs of time ; as when the testator willeth that his daughter or wife shall be executrix, or have the use of his goods so long as she shall remain unmarried. Agreeably thereunto are the laws of this realm of England, wherein there is a case that one of the Kings of this realm did grant to his sister the manor of D, so long as she should continue unmarried ; and this was admitted to be a good limitation in law, bnt not a condition.” (Swinburne, part 4, Ch. 12, Sec. 19; per Kennedy, J., in Middleton v. Rice, 6 Penna. L. Jour. 234; and see particularly Commonwealth v. Stauffer, 10 Barr, 350, 354, 357, Opinion by Ch. J. Gleson ; 1 Rop. on Leg. 797 et seq. and notes; 1 Story’s Eq. Jur. Sec. 276 to 291 and notes; Hare & Wallace’s Motes to White and Tudor’s Leading Cases in Eq., 71 Law Lib. 266 to 337, Scott v. Tyler ; 1 Jarmon on Wills, 698 and notes.) We deem it unnecessary in the present case to enter upon an examination of the numerous anthorities upon this subject; for they are all (at least the modern authorities) agreed that where, as in this case, property is limited to a widow until marriage, and npon marriage then over, the limitation is good. “It is difficult” (says Sir J. Wigram, V. C.) “to understand how this could be otherwise, for in such a case there is nothing to give an interest beyond the marriage. If you suppose the case of a gift of a certain interest, and that an interest sought — 612 — to "be abridged by a condition, you may strike out the condition, and leave the original gift in operation. But if the gift is until marriage, and no longer, there is nothing to carry the gift beyond the marriage.” (Morly v. Rennoldson, 2 Hare, 580.) The limitation in this case was unquestionably valid; the use of the property was determined by" the marriage of the widow, and the Court did not err in refusing the instruction, to the effect that it was a condition in restraint of marriage. It remains to inquire whether there was error in refusing to grant a new trial upon the affidavits of jurors. And there clearly was not. The generally received doctrine is that the affidavits of jurors shall not be received to impeach their verdict. And for the obvious reason that it would open a door for tampering with jurors, and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under the sanction of an oath. The subject was very fully examined in the case of The State v. Freeman, (5 Conn. R. 384,) and after reviewing the authorities, the Court concluded that “ almost the whole legal world is adverse to the reception of the testimony in question,” (that of the jurors who tried the case,) “ and on invincible foundations.” In Graham & Waterman on New Trials it is said, ‘‘It is admitted, notwithstanding a few adjudications to the contrary, that it is now well settled, both in England, and, with the exception of Tennessee, perhaps in every State of this Confederacy, that such affidavits cannot be received, and we believe upon correct reasoning.” (3 Gr. & Wat. on New Trials, 1429.) The numerous cases there collected and reviewed, confirm the observation. In Tennessee, where the affidavits of jurors are admitted to impeach their verdict; it is said they must be received with great caution. (4 Humph. 516.) In Ohio, it is said, they are not jn general admissible for that purpose, and can only be received under certain circumstances, where a foundation has been first — 613 — laid by other evidence. (Farrer v. The State, 2 Ward. Ohio R. 54.) The better opinion is that they ought not in general to be admitted to impeach the verdict, and, if received at all for that purpose, it ought only to be under special circumstances. The course of decision in this Court has been decidedly to discountenance applications for new trials, founded on the affidavits of jurors; and the consequence is that few cases of this kind have occurred in our practice. (Kilgore v. Jordan, 17 Tex. R. 341; 1 Id. 726; Id. 475.) But if the affidavits were admitted in the present case, they show no ground for granting a new trial. The paper on which the jurors say, if before them, they would have returned a different verdict, afforded not the slightest evidence of title, nor was there any reason for giving it the effect they proposed. Their affidavits show that they entirely mistake the character of the paper, and, if allowed, would have given it an improper influence upon their deliberations. On the whole, we are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.