Harder v. Archer

Mr. Justice HaNDY delivered the opinion of the court. This case is a continuation of the same controversy heretofore before this court in the case of Harper v. Archer, reported in 8 S. & M. 229. The rights of other parties, however, are involved, and many questions presented which were not directly involved in that case. The present case was a bill filed in the superior court of chancery by Robert W. Harper and Catharine his wife, against Richard T. Archer in his own right, and as administrator of Stephen C. Archer, and Stephen E. Archer a minor, to recover the portion due Catharine Harper from the estate of her first husband, Edward F. Barnes, deceased. The statements of the bill necessary to be considered, are in substance as follows: — That Edward F. Barnes died intestate, in April, 1827, leaving one child, Eliza F. Barnes, and . the complainant Catharine, his widow, who in May, 1834, married Stephen C. Archer, who died intestate in August, 1837, leaving a son, Stephen E. Archer, the defendant, the only issue of that marriage, and the said Catharine, his widow, who intermarried with the complainant Harper, in September, 1841; that Edward F. Barnes died seized and possessed of a plantation called Oaken Grove, and a large number of slaves and other personal estate, and in May, 1827, Abram Barnes was appointed administrator of the estate, and returned an inventory to August term, 1827, of the probate court, and at August term, 1828, he returned an account as administrator, which was allowed, and up to the time of his death in November, 1830, he acted the part of friend and guardian for the widow and child, cultivated the plantation and received the proceeds, but never settled any account for the same with the probate court; that after his death, Catharine resided with her child on the plantation, managed it, and — 225 — received the proceeds of the crops of 1830, 1831, 1832, and 1833; that after her marriage to Stephen C. Archer, he removed sixteen or eighteen of his slaves to the Oaken Grove plantation, where they were employed, and where he resided till his death, and the crops raised on the plantation by the slaves of Barnes’s estate, assisted by a few of those of Stephen C. Archer, for the years 1834, 1835, and 1836, were sold and proceeds received by him; that Eliza F. Barnes died in July, 1835, and in March, 1836, Stephen E. Archer, son of Stephen C. and Catharine, was born, and has been declared to be the heir at law of said Eliza; that Stephen C. Archer was appointed guardian to Eliza during her life, but never made any report or inventory of her property, or took any step to have a division of the property made between Catharine and Eliza, and that no administration de bonis non of E. F. Barnes’s estate has been granted, nor has administration been granted of Eliza F. Barnes’s estate; that administration of the estate of Stephen C. Archer, in Claiborne county, was granted to Richard T. Archer in January, 1838, at which time there were thirty-four slaves of the estate of Barnes on the plantation, which Archer fraudulently took possession of, and had them appraised as the property of Stephen C. Archer’s estate, and has cultivated the plantation partly for his own profit and partly for the estate of Stephen C. Archer for many years ; that no division or distribution has been made of the estate of Edward F. Barnes, and that the property yet remains to be divided ; that the rights of Catharine survived to her on the death of Stephen C. Archer, and that she and her husband are entitled to one half of the estate of Barnes, and for an account against Richard T. Archer for one half the hire and value thereof during the time he has had possession of the same. The bill seeks a general account against all the parties who have had the use and possession of the plantation and personal estate of Edward F. Barnes, against Abram Barnes’s heirs for the years 1828 and 1829, against the complainant Catharine, for the years during which she had the use and benefit of the property, against Richard T. Archer as administrator for the use and benefit of the property received by Stephen C. Archer in his lifetime, and against him, individually, for the — 226 — use and profits since the death of Stephen C. Archer; and prays a division of the estate between the parties entitled to it, and for compensation for her dower interest in the land, which has never been set apart. The answer admits many of the allegations of the bill, and states that the account of Abram Barnes, mentioned in the bill, was a final settlement with the probate court of his administration account; admits that no division of the estate of Barnes was made, and that the widow’s dower was not assigned, and charges that before her marriage to Archer she disposed of five very valuable slaves of the estate; admits that no administration de bonis non of Edward F. Barnes’s estate was granted, but the reason was that it was fully settled by Abram Barnes and delivered over to Catharine for herself and her daughter. Denies that any interest in the estate of Barnes survived to Catharine, but alleges that it vested in Stephen C. Archer on his marriage, he having taken and kept possession of it during his life, and since his death it having been in the hands of his administrators, and states that the question of title as between her and Archer’s estate was pending and to be settled by the high court of errors and appeals; denies that the thirty-four slaves named in the bill were all the property of Barnes’s estate, and states that three of them, Caty, Anne, and Robert, were purchased by Catharine during her widowhood, or by Stephen C. Archer in his lifetime; denies that complainants have any title to any of said slaves, and claims that they belong to the estate of Stephen C. Archer and Stephen E. Archer, and admits that he returned them as such to the probate court. In an amended answer, Richard T. Archer states that he has learned since his original answer was made, that he improperly admitted that sixteen of the slaves named in the bill were of the estate of Edward F. Barnes. He now alleges that of those slaves, nine came to the possession of Catharine by inheritance, after the death of Barnes, and that the residue were purchased by her after his death, and that all of them belonged to her in her own right when she was married to Archer. He states, therefore, that he has only fifteen slaves in his possession belonging to the estate of Barnes. — 227 — Upon the final hearing on the bill, answers, exhibits, and proofs, the Chancellor dismissed the bill, to which decree the complainants have prosecuted this writ of error. The first question for consideration is, whether the slaves and other personalty belonging to the estate of Barnes were so' reduced to possession by Stephen C. Archer during his marriage, as to render the widow’s interest in the estate his property. We do not perceive how any doubt can exist on this point under the repeated decisions of this court, and especially under the decision in 8 S. & M. in relation to this same estate and the rights of the parties interested in it. It is true that the question was raised there between the guardians of Stephen E. Archer and Harper and wife. But the facts under which the legal right was settled in that case are substantially the same as the facts presented in this record in relation to the right of Stephen C. Archer to the portion of Barnes’s estate to which his widow was entitled. In this case, as in that, it is fully admitted that no division of Barnes’s estate was ever made between his widow and child, and that Archer, after his marriage, lived on the plantation with his wife, and had possession and control of the undivided estate of Barnes, doing nothing to indicate a severance of the interest of the distributees or an appropriation of the specific property to his use, or a right of disposition of it as his property. Without any material difference between the two cases as to the facts touching the right of Archer to his wife’s portion of the estate, the answer of his administrator in this case distinctly submits that question to the decision of this court in the case in 8 S. & M., which was not decided when the answer was made. In addition to that case being a decision upon the same claim involved in this case, it declares a sound legal principle which has been repeatedly sanctioned before and since that case was decided. Duncan v. Johnson, 23 Miss. 130; Kilcrease v. Shelby, Ib. 161. These cases are, therefpre, conclusive of the point, that the right did not vest in Archer during his marriage, but survived to his widow upon his death. The next subject of inquiry is, whether the slaves inherited by Mrs. Barnes from her sister came to the possession of Barnes — 228 — in his lifetime, so as to become his property and subject to distribution as such. It is insisted in' behalf of the defendants in error, that the evidence shows that these slaves never came to the possession of Barnes, inasmuch as he died in April, 1827, and it is proved that they were first brought on the plantation by Abram Barnes, his administrator, in January, 1828. This is the testimony of theuwitness Herrel, who states that he was the overseer on the plantation from November, 1827, until some time in the year 1831. He also states that the slaves may have' been in the possession of Barnes in the spring of 1827, but if so, he did not know it, and that they were not on the plantation in the fall of 1826. On the contrary, the witness White proves that he was one of the appraisers of Barnes’s estate, and at the time of the appraisement in June, 1827, these slaves were on Barnes’s plantation, and appraised as his property, — and this fact is verified by the appraisement filed. It is clear, therefore, that the witness Herrel was mistaken in his recollection or opinion, and we think that all the circumstances connected with these slaves go to show that they were in the possession or under the control of Edward F. Barnes in his lifetime as his property. It appears that Mrs. Barnes inherited the slaves from an only sister who died before her marriage to Barnes, which took place in 1825. Nothing is shown as to who had possession of them from that time till they were appraised. But they were then on the plantation of Barnes, and were appraised as his property with, his other slaves. They must have been produced to the appraisers as his property by Abram Barnes, his administrator, who is shown to have been a man of intelligence and exemplary probity; and it is not to be supposed that such a man would have attempted to bring into the estate, slaves which his intestate had never had in possession or under his control. He was the brother of the intestate and well acquainted with his affairs, and must have had a better knowledge of the property belonging to him than the overseer, who came to the place after his death. In addition to this, no claim of separate property in these slaves was set up either by the widow before her second marriage, or by Archer after that marriage, which most probably — 229 — would have been done if it had not been known that they belonged to Barnes’s estate. On the contrary, all parties up to the time of Archer’s death appear to have recognized these slaves as in the same situation as the other slaves which he died in possession of. It is said that, as Barnes’s title to these slave, is denied by the answer, it was incumbent on the complainants to show positively that he had possession of them during his life. We do not think so. There is nothing in such a case requiring fuller proof of possession than in many other cases where that fact becomes ari important question. And the cases are numerous where possession may be presumed from circumstances. Indeed the great lapse of time since the transaction occurred, the death of witnesses cognizant of a matter so unlikely to be known or remembered by many persons as who had the possession of particular slaves at a stated remote date, and the consequent difficulty of making positive proof upon such a point, would seem to render a resort to circumstantial evidence, in the absence of positive proof, necessary to the ends of justice. We think, therefore, that these slaves must be regarded as having come to the possession of Barnes in his lifetime, and as constituting a part of his estate. The next point to be considered is, whether the slaves Arthur, Venus, and their children are to be held as part of the estate of Barnes. These slaves were not of the estate of Barnes at the time of his death, and the only evidence showing how they became connected with the estate, consists of the testimony of the witness Coburn, taken by the defendants, showing that Abram Barnes, the administrator, had purchased them from Dr. Moore’s estate for the estate of Edward F. Barnes. It is objected in behalf of the defendants, that the administrator had no right to make such a purchase for the estate. That may be true, but if no objection was made to it, it cannot be said that the property shall not go to the benefit of the estate because the administrator exceeded his authority in making the purchase. It does not appear that the parties interested in the estate made any objection to the act; and it would be' — 230 — strange to say that property purchased for the estate and with its means, as must be presumed, should be lost to it because strangers think proper to object that the purchase was made without legal authority. But it is said that, inasmuch as the administrator made no charge in the account which he returned to the probate court for money advanced for these slaves, (which account is alleged to be his final settlement,) and as he acted as the friend and agent of the widow in managing all her business up to the time of his death, he must have purchased the slaves for her individual use. To this there are several sufficient answers. 1st. The proof is that he made the purchase for the estate. 2d. His account returned to the court does not purport to be a final settlement, and cannot be considered in law as having that effect. It is made without notice, contains no order of discharge to him as administrator, nor order for distribution. It does not appear that he regarded it as a final settlement, for he received the proceeds of the crops for two years thereafter, and it must have been after that account was returned that he purchased these slaves; for otherwise it is to be presumed that he would have charged himself with the money paid. The probability, therefore, is much greater that he made the purchase with funds of the estate received after his account was rendered and for the use of the estate, than that he gratuitously used his own means or misapplied the funds of the estate to purchase slaves for the individual use and as the separate property of Mrs. Barnes. We think, therefore, that the slaves in question must be treated in equity as the property of the estate, and chargeable accordingly. We will now proceed to consider several questions involved in the account to be taken between the complainants and Stephen E. Archer, and Richard T. Archer in his own right and •as administrator of Stephen C. Archer. 1. The first of these questions arises upon the slaves of Barnes’s -■estate which were sold to David Moore, either by Mrs. Barnes during her widowhood, or by Stephen C. Archer after his mar-adage in pursuance of an agreement made with the widow before his marriage. — 231 — These slaves being sold before division of the estate between the widow and heir of Barnes, that act must be considered in law as a severance of her interest in the estate to the amount of the value of the slaves and an appropriation of them to her use, and so far as the husband participated in the sale, it must be considered as a reduction to possession of so much of the wife’s interest in the estate. Cabell v. Bell, 1 How. 558; Wade v. Grimes, 7 Ib. 425. It may have been intended by the widow as a mere exchange of property and substitution of certain slaves for those belonging to the estate. But upon this point the testimony is very unsatisfactory and uncertain. It is clear that there was no power in Mrs. Barnes or Archer to dispose of the slaves of the estate otherwise than in virtue of her interest in the estate as a distributee, and in that way alone can the disposition be valid. It is also clear that they had no power to exchange the property of the estate so as to bind the other dis-tributee to take the property obtained, instead of the value of that disposed of. Considering the matter, therefore, in the only light in which the law can view it, it must be regarded as a sale of so much of Mrs. Barnes’s interest in the estate ; and it follows, that the slaves received in the transaction became her individual property, and belonged to her husband Archer and went to his administrator upon his death, and that in the account and division to be made between Mrs. Harper and Stephen E. Archer, she is chargeable with the value of the slaves belonging to the estate, and so disposed of. This result, which may appear in one point of view to be inequitable, is the legal consequence of her interference with, and disposition of, the estate before the division ; and the rights of Stephen E. Archer as co-distributee cannot be prejudiced by her conduct. 2. The second question is whether the estate of Stephen C. Archer is liable for the crops raised on the plantation in the years 1834,1835, and 1836, after his marriage, or whether they are to be charged against Mrs. Harper as so much of the estate reduced to possession by the husband. It appears that, after the marriage, Stephen C. Archer lived on the plantation of Barnes’s estate, had charge of the slaves, — 232 — and cultivated and sold the crops and received the proceeds. He does not appear to have claimed the proceeds of the plantation as his property, or to have disposed of the crops for his own use. On the contrary, it is shown that he carried on the plantation and made accounts in relation to it, in the name of the estate and separate from his individual accounts. From the nature of this part of the property, it had necessarily to be sold. But nothing is shown to justify the conclusion that he sold the crops as his own property, or that he was acting otherwise than as the agent or trustee of the parties. And it is well settled that it is not merely the possession of property which confers a right in such cases, but there must be a claim of title or unequivocal acts indicating such a claim. When the money came to his hands, he was entitled to such portion of it as belonged to his wife, because from its nature, the possession coupled with the right was absolute ownership; but as to the portion due the child, he was not entitled to it, did not claim it as his property, and cannot be considered in law or equity as having appropriated it to his use, so as to make his wife’s interest in the estate chargeable with it in an account between her and the child. On the contrary we think that, as to the child’s portion of the money, the father must be regarded as having received it as trustee or guardian for him, and that the father’s estate is chargeable with it in the account to be taken. The condition of Stephen C. Archer is not different in this respect from what it would have been if the estate had been carried on by the administrator, who had paid over to Archer the proceeds of the crops, not especially on account of his wife’s share of the estate; in which case there can be no doubt that Archer would be regarded in equity as having received the portion due his son as his trustee or guardian, and be held accountable accordingly. 3. The next point is, whether Mrs. Harper should be charged with the proceeds of the estate for the years 1828 and 1829. She is sought to be so charged on the ground that Abram Barnes, the administrator, settled his final account in August, 1828, and surrendered the estate to her. But we have above seen that the account of Abram Barnes cannot be considered — 233 — as a final settlement, and consequently the estate was in his charge and he must be held accountable for it. On the other hand, the complainants seek to charge Barnes’s estate for the proceeds of the crops during those years, and pray an account against Richard T. Archer and wife, the distributees of Abram Barnes, for the avails of the property received by Barnes for those years. We can perceive no ground for entertaining such a claim in a court of equity. If it were well founded, no sufficient reason is shown why it has not been asserted in the probate court, and why so great a lapse of time has been permitted to intervene before asserting it. 4. In the account to be taken, Mrs. Harper will be chargeable with the net proceeds of the estate of Barnes for the years 1830,1831, 1832, and 1833, after deducting the necessary and proper charges for the support, education, and maintenance of Eliza F. Barnes; also, with the hire of the slaves of the estate which have remained in her possession and use, and also with the value of the articles she has received from the estate of Barnes since the death of Stephen C. Archer. Richard T. Archer will be chargeable individually with the-annual value of all the slaves and other personal property of the estate of Edward F. Barnes of which he has had the use or possession since the death of Stephen C. Archer, and with the rents and profits of the dower interest of the widow in the real estate for the same time. The estate of Stephen C. Archer cannot be chargeable to the distributees for the use and possession of the property since his death, because all his interest in¡ the estate ceased with his death, and Richard T. Archer as his. administrator had no right to or interest in the estate. His connection with it is, therefore, in law that of an individual,, and as such he is accountable. In relation to the dower interest of Mrs. Harper it is insisted,, in behalf of the defendants, that she is entitled to no compensation on that account, because she has not seen proper to have her dower set apart as she had a right to do. It is true that she might have had her dower assigned, but her failure to do so can be no reason why she should not receive compensation for her right from one who has had the benefit of it. It is also, true, as — 234 — is contended, that at law the widow was not entitled to rent for her dower interest until it had been set apart. But a different rule prevails in equity, which will give an account for mesne profits before the assignment, Story’s Eq. Jur. § 626; and though she die before her right to dower be established, equity will decree an account of the rents and profits in favor of her representatives. Ib. § 625; Fonbl. Eq. Book I. Ch. 3, § 3, note k; Park on Dower, 352. It is, therefore, clear that she is entitled to an account from the time of the death of Archer as sought in the bill. We have thus examined the material points necessary in settling the rights of the parties, and in taking the account necessary to the adjustment of those rights; and it follows from the views we take of the case, that the decree was erroneous in dismissing the bill. It is, therefore, reversed, and the case remanded to the superior court of chancery, with directions to decree an account to be taken in accordance with the views and principles herein stated, the costs in this court to be paid by the defendants.