Thomas v. Wallace

GOLDTH.WAITE, J. 1. We think the proof of the execution of the deed was entirely sufficient to authorise its admission as evidence. It has been often held, that one subscribing witness is sufficient to prove the instrument attested, though there are several. [3 Phil. Ev. 1262 ; 3 C. & H’s notes.] The absence of [275] the subscribing witness beyond the process or jurisdiction of the court, is sufficient to let in inferior evidence. [Id. 1294.] And in such case it seems that proof of the hand-writing of the witness, without any further evidence, will suffice in the first instance, to-allow the instrument to be read to the jury, though it is usual, for greater caution, to add corroborating circumstances. [Id. 1266.] In fact, the proof of the witness’ hand-writing, has been permitted, though he himself denies or doubts it. [Id. 1303, 4, 5.] So, if a witness recognizes his signature, and says he has no recollection that the writing was executed in his presence, but seeing his signature, he has no doubt he saw it executed; this has always been received as sufficient proof of execution. [Id. 1304.] From this view of the law, it may we think, be. concluded, that the testimony of one of several attesting witnesses is competent to prove the execution of the paper, either by testifying positively to the fact, or by acknowledging his signature, where he remembers nothing more. This being the law, all the witnesses being either dead or removed (as in the present case,) it would seem that the proof of hand-writing of one was prima facie sufficient to allow it to be read to the jury. 2. Most of the other questions which have been argued on be-' half of the plaintiff in error, are dependent upon the supposed interest of Mrs. West, under the deed of trust; and after a very deliberate examination, we have arrived at the conclusion that it was intended by the grantor that she should have none whatever; except upon a contingency, which does not appear to have yet existed. It is proper to remark, that the deed has no dependence upon the will, which indeed, refers to it, but only as a valid subsisting instrument; and such undoubtedly it was, upon the authority of our previous decisions. [McCutchen v. McCutchen, 9 Porter, 650; McRae v. Pegues, supra.] The intention evinced upon the face of this deed is entirely clear, and does not require the transposition or interpolation of any words to make it so. The deed declares two trusts; one of which is absolute, in favor of all the legal heirs of his daughter, born.of her body; and the other, which is conditional, is- in her favor, but is to have effect only when she is without children in being. With this idea of the grantor’s intention, we will recite the operative words of the deed. “Intrust, for the usos of the legal heirs of [276] M. West, upon her body to be begotten; and in caso of the failure of issue of the said M. West, the above mentioned land and negroes shall revert, &c.” “ The proceeds arising from the said land and negroes are to be applied to the support of the said M. West during her natural life, in case she shall have no children in being ; and at her death to revert, &c.” The subsequent matter of the deed seems to have no influence whatever upon the trusts, but is declaratory of the grantor’s intention that the property shall never be West’s under any circumstances. The concluding declaration, that «the proceeds of the property are alone to be applied to her use and the use of her childrenmust be confined to those uses as previously specified, which are, to her descendants, in the first instance, and to her only, when she has no descendants in being. The proof before the jury showed, that during the whole period between the date of the deed and the trial, she had children living ; consequently, there never has been a time when a coui't of equity would have given her either the use of the slaves or their proceeds. This circumstance, has been supposed in argument, one of much importance, because, (as insisted) if Mrs. West, at any time continuously for three years had been entitled, to the use of the property, or even if the trustee had loaned it to her, the possession continuing with her for that period, would have made it subject to the creditors of her husband, or protected a purchaser from him. Without intending to decide what is the proper construction to be given to the statute, we shall refer to some decisions from other States, upon one precisely similar. [Guy v. Moseley, 2 Mum. 545; Lewis v. Adams, 6 Leigh, 320 ; Pale v. Adams, 7 ib. 80; Crenshaw v. Anthony, Mart. & Yerg. 102; Andrews v. Hartsfield, 3 Yerg. 39; Withers v. Smith, 4 Bibb, 171; Craig v. Payne, ib. 337; Chiles v. Bernard’s ex. 3 Dana, 95 ; McLaughlin v. Daniel, 8 ib. 182; Strode v. Churchill, 2 Litt. 75; 1 Litt. 229; 1 Marsh. 7.] 3. Under the trust deed, the children of Mrs. West, or their descendants, are entitled to the use of the property, and therefore, when the trustee permitted their father to take and retain possession, it must be considered that he held it as their natural guardian; and this the more especially because the verdict concludes this point, for it was left to the jury to determine if West [277] held under the deed. In Seawell v. Glidden, [1 Ala. Rep. 52,] such a possession was held to be referable to the title of the child, and that the father’s possession was in trust for him. This in reality disposes of the case, by deciding the only question involved, and although some of the instructions, when given, as well as those refused, may be obnoxious to criticism, yet they do not affect the merits, for they become entirely abstract, under our view of the case: Let the judgment be affirmed.