Roane v. Rives

Mr. Chief Justice "WatKINS delivered the opinion of the Court. The appellee, who is the widow of Thomas. II. Hives, by her bill of complaint, sought to recover a slave named Betsey, and her increase, together with hire of the negroes, then in possession of the defendant, as executrix of Sam C. Koane, deceased. It appears that, in the year 1832, in the State of Virginia, Hives sold and delivered the negro woman Betsey, for value received, to Martha Kowlet, to whom ho executed his bill of sale, and upon which she endorsed the following instrument: “OiiESTEREiELD OouNty, March 1st, 1832. ■ I do give to my brother, Thomas W. Ilill, in trust for the use of my daughter, Anne Eliza Hives, and her increase forever, to their use, &c., the within negro woman and increase. Given •under my hand and seal, this date above written. MAHTHA BOWLET.” In the year 1838, Hives came to Arkansas, where ho sold, among other slaves, tbe negro woman Betsey and her child, to Boane, in whose possession and that of his executrix, they have ever since continued. Bives was joined by his family in the year 1840, resided in this State, until his death in 1852, and the complainant exhibited her bill in the year following. There were some allegations in the bill, to the effect that Boane bought the negroes in bad faith, and with a knowledge that they had been settled' in trust for the wife of Bives; but these allegations are not proven, and the evidence, on the part of the- defendant, tends to establish that her testator paid full value for- them, supposing that he got a good title, and in ignorance of any doubt or dispute about it. The Court below decreed that the negroes in controversy be delivered up to the complainant, and that the defendant pay the sum of sixteen hundred dollars, assessed as ■ the value of their hire and services. Leaving out of view any other question, made in-the cause, the decree appealed from must be reversed, upon the construction of the instrument executed by Martha Bowlet. According to the cases of Lindsey vs. Harrison, 3 Eng. 302; Sadler vs. Bean and wife, 4 ib. 202; Maulding vs. Scott, 13 Ark. 88, and Cox vs. Morrow, 14 ib. 603, without going into an examination of other cases cited for the appellant, the conclusion is unavoidable that the character of the instrument is not changed by the intervention of a trustee. No duties are specified or required of him to be performed, which would mate it an executory trust, but it became at once a use executed, passing the legal as well as the beneficial interest, to the oestwi gue use. Tested by the cases which have gone farthest upon the construction of wills, the beneficiary here took an absolute estate, divested of any remainder in her increase; the phraseology in the connection used, being clearly words of limitation, andnot of purchase. Itmay be true in point of fact, that the intended beneficiary was at the time a married woman, the wife of Bives, and that the object of the donor was to secure the slave to her separate use; but the conveyance to a third person in trust for her use, merely, and without any thing more, will not, according to the authorities, be sufficient for that purpose at the common law, the case not being affected by any statute for securing to married women their separate property. Without some further expression, on .the face of the instrument, indicative of an intention to exclude- the marital rights of the husband, they attach immediately, and the property becomes his, subject to his disposal like any .other chattel of the wife, reduced to possession during coverture. The decree will be reversed, and the cause remanded, with instructions to decree in favor of the defendant, dismissing the bill.