Stewart v. Pettus

Scott, J., delivered the opinion of the Court. Tabitha Batte, in the year 1836, resided in the State of Virginia, where she made her last will and testament in conformity to law. By this will, she bequeathed, in trust to William G. Pettus and James Coleman, all her property for the benefit of Peggy C. Batte, her daughter-in-law, and wife of Thomas C. Batte, who, at that time, resided in Missouri. After-wards, Tabitha Batte removed from Virginia to this State, where she continued to reside until her death in 1840. Her will was admitted to probate in Virginia, but no probate of it was ever made in this State.— A portion of the property conveyed in trust was a slave named Mary, who had a child (Washington) after the date of the will. These slaves, after the death of Tabitha Batte, were levied on and sold under execution against Thomas C. Batte. They afterwards came to the possession of Grief Stewart, the appellant. Coleman, one of the trustees, having died, this action of detinue was brought by Pettus, the surviving trustee, for the recovery of the slaves. On the trial, Pettus, the trustee, read in evidence an authenticated copy of the will and probate in the State of Virginia. This was objected to by Stewart, and after a judgment against him, he appealed to this Court. The point in this case was determined in Nat vs. Coons, 10 Mo. Rep. Tabitha Batte, at the time of her death, being domiciliated in this State, her will should have been proved here, and no foreign probate was evidence. The general principle that the probate of a will is conclusive when introduced collaterally, is not applicable in this case, as the facts disclose a want of jurisdiction over the subject in the tribunal granting it. 2 Greenleaf, sec. 339. The will conferring the right to the slaves on the trustees, the instrument itself, and not the probate, is the foundation of their right. The cause will be remanded, that a probate of the will may be taken out in this State. Woolly vs. Clark, 5 Barn. & Ald., 744; 1 Sal., 302. In the case of joint trustees, the trust survives on the death of one of them. The distinction is between mere powers uncoupled with an interest and trusts. Joint powers, in matters of mere private concern, are extinguished by the death of one of the persons entrusted with it: not [757] so in the case of trusts; they survive to the survivor. 1 Thos. Coke, 739; 1 Dow. & Ry., 259, Read vs. Goodwin. The other Judges concurring, the judgment will be reversed and the cause remanded.