Gillespie's Adm'r v. Burleson

WALKEE, J. "The appellant, as the administrator of the — 561 — estate of James Gillespie, deceased, was the plaintiff in a suit involving the title to-a negro woman, Hester, and her children. A parol gift of Hester was made, in 1833, and before the birth of the other slaves, by Henry Johnson, to his daughter, Lucy Gillespie, who was, at the time «of the gift, the wife of James Gillespie, the appellant's intestate. Lucy Gillespie survived her husband, and after his death, sold the slaves to the appel-lee. The question in the court below seems to have been, whether the title to the negroes vested in the husband of the donee during her coverture; and the right of the plaintiff depended upon a decision of that question in the affirmative. The rulings of the court below, permitting the defendant to prove declarations of Henry Johnson, the donor, of Lucy Gillespie, the donee, and of James Gillespie, the appellant's intestate, are presented for revision in this court. An agreement of counsel is found in the bill of exceptions, which, it is argued, precluded the defendant from giving in evidence those declarations. The tendency of the proof objected to- was, to negative the existence of any title in James Gillespie to the negroes sued for. Such proof is not only not inconsistent with the agreement, but legitimately belongs to the class of evidence which the counsel, in the agreement itself, reserve the right to introduce. The agreement admits the making of the gift, in 1833, and the coverture of defendant's vendor at the time ; but reserves the right to show that the marital rights of the husband were excluded, or that he never had any title. The admission of counsel, that a gift was made during cover-ture, is not inconsistent with the hypothesis that, by the terms of the gift, or by the conduct and declarations of the husband and wife, the vesting of a title in James Gillespie was prevented. The evidence introduced is not outside- of the reservations in the agreement of counsel; and therefore it is unnecessary to inquire, whether the maxim, “ inclusio unius est exclusio alterius,” would apply,' and exclude evidence not susceptible of being classed under those reservations'. • For these reasons, we think that the admissibility of the declarations-dbjected to is not at all affected by the agreement of counsel. It is set forth in the agreement of counsel, that the gift of Hester was made to Lucy Gillespie in the “fall of 1833.” The bill of exceptions shows that the defendant was permitted to — 562 — prove that, “in 1833”. the slave was delivered by Henry Johnson to Lucy Gillespie; and that ho declared, the night before, and at the time of the delivery, that he was going to give her, Lucy Gillespie, some property, (alluding to the-mother of the slaves in controversy,) and that he did not intend it to be liable to James Gillespie’s debts.” The defendant was also permitted to pi;ove, that Henry Johnson, “ six or eight months afterwards,” made the same declarations, and furthermore said, “ that after the death of Lucy, the property was to go to her children, — that he had loaned the property to Lucy before, and that when he got it fixed, he intended it to go to her children after her death.” It would be clear that the declarations of Henry Johnson, made six or eight months after the delivery of the negro to his daughter, were improperly admitted in evidence, if the bill of exceptions had shown that the gift was made at the time of the delivery ; because it would be incompetent for the donor, after the consummation of the gift, by his declarations to affect, or to make evidence in reference to, the title conferred. — See Olds v. Powell, 9 Ala. 861; Rumbly v. Stanton and Wife, 24 Ala. 712 ; Martin v. Hardesty, 27 Ala. 458. But, while delivery is a necessary constituent of a parol gift, it is not indispensable that it should be simultaneous with the words of conveyance. The bill of exceptions informs us that the delivery was in 1833, but does not specify the time of the year. The delivery may have been, consistently with the bill of exceptions, in the first place, on loan, and may have occurred several months before the gift was actually made in the fall of 1833 ; and declarations, made six or eight months after the delivery, may have been antecedent to the gift. Therefore, we are npt authorized, from the bill of exceptions before us, to decide that the court admitted in evidence declarations of the donor made after the gift. Indeed, we may intend that the declarations were made before the gift, because the bill of exceptions is as well suceptible of that construction as any other. If the declarations were made before the gift, they would bo evidence, in the event they were made by the donor, during the time previous to the gift, when the gift was under consideration and discussion by the donor, and were made in reference to, and in contemplation of it, and were explanatory of the donor’s intention. — Olds v. Powell, 9 Ala. 861. — 563 — . The declarations of the donor, made at the time of the delivery, were explanatory of the act done, and admissible as a part of the res gestee. ■The declarations of the plaintiff’s intestate, in opposition to his own, and in favor of his wife’s title, were legal evidence against one claiming as the administrator of the declarant’s estate, and the court did not err in admitting them. — See Jennings v. Blocker, 25 Ala. 415 ; Miller v. Jones, 26 Ala. 247. It is not very clear from the bill of exceptions, whether all the declarations of Mrs. G-illespie, which the court admitted in evidence, were made in the presence of her husband, the plaintiff’s intestate, and acquiesced in by him ; but it is certain that such was the case in reference to all of her statements which were objected to, and made matters of exceptions. Declarations, thus made in the presence of, and acquiesced in by the husband, are as competent evidence against his administrator, as they would have been against himself. We deem it proper, however, to remark, that the assertions of the wife, not made in the presence of the husband, nor communicated to him, could only be evidence for her vendee, when they were made while she was in possession of the negroes, and explanatory of her possession. — Nelson v. Iverson, 24 Ala. 9 ; Johnson v. Boyles, 26 Ala. 576. The qualification added by the court to a charge, given at the instance of the plaintiff, is objected to, upon the ground that it authorized the jury to consider the acts and declarations of the donor, subsequent to the gift, in explanation of those which were attendant upon and connected with the making of the gift. The language of the qualification to the charge is such as to leave room for doubt, whether it has the. meaning and effect imputed to it. But, as the case must be reversed upon another point, it is not necessary to inquire what is the true construction of the charge given. It is sufficient for us t‘o respond to the question of law presented in the argument of the counsel, and which will probably arise upon the future trial of the cause. We conceive the law upon the question presented to be, that no acts or declarations of Henry Johnson, the donor, subsequent to the completion of the gift, and at a time totally disconnected with the making of the gift, and not in the presence or the hearing of the appel — 564 — lant’s intestate, or communicated to Mm, are evidence in this case, either for the purpose of affecting the gift made, or explaining the words or conduct of the donor at the time of the gift. — Rumbly v. Stanton, supra. The court below, by way of qualification to a charge given upon request of plaintiff, instructed the jury, in effect, that a parent may, by the terms of a parol gift to his married daughter, exclude her husband’s marital rights. In doing'so, the court did not err, because the instruction given asserted a legal proposition fully recognized by the decision of this court in the ease of Crabb v. Thomas, 25 Ala. 217. — See, also, Jennings v. Blocker, 25 Ala. 415. The plaintiff below asked in writing a charge as follows : “ The words, T intend to give you some property, (referring to the slaves in controversy,) but not subject to your husband’s debts,’ do not create a separate estate.” The qualification of a gift to a married woman, by a stipulation that the property shall not be liable to her husband’s debts, is not sufficient, standing alone, to exclude the husband’s marital rights. The law is so laid down by this court in the case of Bender v. Reynolds, 12 Ala. 446. Such a qualification imports an intention to exempt from liability to the husband’s debts, and does not of itself imply an exclusion of the husband’s title. The charged asked asserts a correct legal proposition, and we are not authorized by the bill of exceptions to regard it as inappropriate to the case. We therefore decide, that in the refusal of that charge the court erred. As this case must be reversed, we do not deem it necessary to notice with particularity the three other charges given by the court. It will be sufficient for us to lay down one rule of law which seems applicable to the questions presented in those charges, for the direction of the circuit court upon a future trial; and this we are enabled to do without difficulty, as the recent decisions of this court cover the entire ground. If, at the time the slave Hester was given to Mrs. Gillespie, she asserted that the property was received to her separate use, exclusively of her husband, and she uniformly during her husband’s life claimed that the possession of the negro, and of the children born after the gift, was under a separate title in her, exclusive of her husband; and the husband — 565 — assented to such assertion and claim by her, from the time of the gift to his death, — it must be held, in this suit, between the administrator of the husband and one claiming by purchase from the widow, after the husband’s death, that the marital rights of the husband never attached ; and it makes no difference whether the husband or wife actually controlled the property. For in such a case it cannot be said that the appellant’s intestate has ever, as husband, reduced the property to possession. No argument is necessary to sustain this exposition of the law, because, in our judgment, it is fully authorized by the decisions of this court in the cases of Machem v. Machem, at the present term, and Jennings v. Blocker, 25 Ala. 415. For the error pointed out in this opinion, the cause must be reversed and remanded.