Irving's Admr. v. Irving's Admr., 5 Mo. 28

Statement of the case made and opinion of the court delivered by Tompkins, Judge. This was an action commenced in the circuit court by the plaintiffs in error against the defendants in error, for certain slaves. In that court the defendants hadjudgment, and to- reverse it this writ of error was sued out.

On the part of the plaintiffs, one witness testified that about fifteen or sixteen years ago, (meaning before he gave in his evidence,).he resided in the Petit Osage (Little Osage) bottom, in Saline county, in this Slate, and that Joseph Irving, junior, the defendants’ intestate, came-into that bottom to improve a place for his father, Joseph Irving, senior, the plaintiffs’ intestate.

That in the spring of the year, Joseph Irving, senior, sent up a negro-girl to cook and keep house for the laborers employed in-making the improvement; that the girl so sent was of a dark color, supposed to be about fifteen or sixteen-years-old, her name not remembered; perhaps in the same year, Joseph Irving, senior, moved up and settled-on the said place improved by his son; that he and his son, Joseph Irving, junior, continued to reside on the same place together, until sometime in the year 1819, when Joseph Irving, senior, became s-i-ck, and was, as he supposed, about to die, and proposed- to the witness to-write his will; that Joseph Irving, junior, was present,, and the old man said he had sold some land in Tennessee for about seven of eight hundred dollars, belonging' to the said Joseph, junior; that he had given him two horses, a wagon, and some money,, and a negro girl, for the consideratien of the land sold in Tennessee.

The witness said he understood that it was the negro girt which had been first sent up to cook, &c,, for Joseph1 junior, when he came up- to improve the place; that the said Joseph, junior, and Joseph, senior, talked the-matter over about selling the land in Tennessee, and-about the horses, wagon, money, and negro, given him by the old man for the money received for the land. That the witness then went for Mr. Howard Everett, a neighbor of said Irving, to get him to write the will, but that on his return with Mr.

Everett, the old man was better,- and nothing further was said, as far as he knew, about the will, or negro, money, wagon and horses, or land sold in Tennessee. About a month after, the old man died.

The witness said that although at one time he had thought the name of the negro which the old man said, in the presence of Joseph, junior, he had given to him was Nan-ey; yet from what he had heard since, he thought it was Hannah; it was the girl he had first sent to the place to cook, &c., (as he had before stated;) was the one that the old man said he had given to Joseph, junior, and that he remembered she was of a dark color. The witness further stated that all he remembered about the matter was but his impressions, and that they were not very strong.

Another witness, introduced by the plaintiff, stated that he knew the negroes of the elder Irving at the time spoken of by the first witness; that Irving, senior, had two girls, one named Hannah, of a dark color, the same sent up to cook, &c., as before stated, then aged fifteen or sixteen years; and another yellow girl, named Nancy, then aged nine or ten years; that Joseph, junior, lived with his father till the time of his death; and that both the girls were also in the family of the father.

It was further proved that Joseph, junior, kept said girl, Nancy, in his possession during his lifetime, and that she had several children; that she and her children had been hired out by the defendants in this action, since the death of said Joseph Irving, junior. The plaintiffs then •examined, by consent of the defendants, one Isham Arthur, who had married a daughter of Irving, the father, who had a child by her, but whose wife was dead.

This witness testified that he knew the two girls, Hannah and Nancy; that Hannah was dark colored, and that Nancy was yellow; that he had seen Nancy in possession of Joseph Irving, junior, the defendants’ intestate, since the father’s death; and that several years after the death of Joseph Irving, senior, he had heard the son say he had no claim to Nancy, and did not own her; tlíat he intended to sell her as the property of the estate of his father, and that he intended to buy her. The defendants then introduced William Jack, one of the defendants, as a witness.

He stated that a few days before the death' of Joseph Irving, senior, he called to ses him; that the old man told him he expected to die soon, and wished him to write his will. The witness declined complying with this wish, suggesting to the old man that he was probably in no danger of dying till he could procure some more capable person to do the business.

The old man then said he had left some children in Tennesse for whom he had done as much as he thought he ought; that he had sold some land in Tennessee belonging to Joseph Irving, junior, his son, for about seven or eight hundred dollars, and that he had given to him, in lieu of the purchase money, two horses, a wagon, some money, and a negro girl called Nancy. The possession of the woman Nancy and her children sued for was admitted by the defendants and their intestate.

The defendants then proved that Joseph Irving, junior, as administrator of his father, Joseph Irving, senior, for several years hired out, as the property of the estate, the negro girl Hannah, and did not hire out the negro girl Nancy; that Hannah became sick and died, and that the expenses of her sickness had been defrayed out of the estate of Joseph Irving, senior. To the admission of this testimony the plaintiff objected, and the court overruling his objection, he excepted to its opinion. The testimony being closed, the plaintiff prayed the court to instruct the jury: 1.

To disregard all the evidence about the hiring out of the negro girl Hannah by Joseph Irving, junior. 2. To disregard the evidence of William Jack, one of the defendants in this cause. 3. That any acts of ownership over the girl Nancy by Joseph Irving, junior, while he was administrator of his father, is no evidence to prove she was his property. These instructions were refused, and the plaintiff excepted. The court then, on the prayer of the defendant, instructed the jury: 1.

That if a consideration in money had passed from the younger to the elder Irving for the negro girl, the sale was good, whether it were by deed or by parol. 2. That although the hiring out of Hannah did not show a title to Nancy, yet it is a circumstance from which they may infer that Nancy was intended to be given in the place of Hannah. 3. That although the acts of ownership exercised by Joseph Irving while he was administrator are not sufficient evidence of title, yet connected with other testimony, they are evidence for as much as they are worth.

To the giving of these instructions the plaintiff also excepted. The verdict of the jury being for the defendants, the plaintiff moved for a new trial: 1. Because the verdict was contrary to the evidence. 2. Because the verdict was contrary to the weight of evidence. 3. Because the court misinstructed the jury. 4. Because the court refused to instruct the jury as prayed by the plaintiff. The several matters excepted to are assigned for error. The points made by the plaintiff in error are, 1.

That the court erred in permitting the defendants to prove the acts of Joseph Irving, junior, as administrator of his father, to show that the. negroes in dispute were his property. 2. That the weight of testimony was in-favor of the plaintiff in error., A son who was administrator of his father’s estate, cuy hired out'a’" negro girl, named Hannah, as the estafe,^lso ciaba-ed another girl “Nancy,” by íatíier^hís Ufe™ time.

Inanae. tion instituted ^ admrfafter his'S decease, for the ed on the alleged fraud or claimlno°Nancy, ■whenHannah was the slave ao-byiíis.fatheT, acts of the senas »dmv. of his. fa-Hannah under the direction,and supervision, of the retaimn^posses-*1 sioisof the slave “■Nancy,” will be evidence to°the m jury — it being proved that cease, was the more valuable groofthetwo. similar to decía-rations made by interest are td-missible evi-dpnce, and if corroborated by other uestis™^"fent to jHeetf¡y a'verdict in his favor, Tompkins, Judge.

The act concerning executors and administrators, requires them, to file an inventory of alb the property of the deceased-under oath, andgives to any persotl interested in the-estate of the deceased the to file an affidavit, stating that such person has good cause to believe that any, person has concealed or embezzled any goods, &c.,,and the court is directed to in.*-vestigate the matter — see-last Revised-Code, pages-46 and/ 47. Under the direction too of the county courtj.execu-tors and administrators are required to hire out the slaves of the deceased.

It was in evidence that- the - intestate of the defendants in error did, for several years,, hire out this- negro,. Hannah, as the property of the estate fi’s intestate, at a time too, when from her age, (she being about fifteen or sixteen, while the other was only or ten years old,) it is fairly to be presumed was more valuable than the other, Nancy, which he-retained in his own possession, and that in so doing he against his own-interest. It was also in evidence-she was the- more valuable of the two.

It is not pretended that the negro, Hannah, was not- returned on; the inventory directed to be filed with the clerk of the-court, as the property of the intestate. We are-then left to presume that the administrator did his - duty, and that as-he hired her out as- the property of the estate,. so 'fie returne£l her on, the inventory as the property of such intestate.

These act's done by the administrator, under oath, under the inspection of a-court appointed bylaw to cotttr°l him in his settlement of the estate, in open court, in the constructive and probably in the actual presence of creditors and- distributees, and contrary to-own interest at the time, the correctness of none of which were called in question by any one interested, to this court to be admissible as evidence to prove ^ two slaves the-father’ intended to sell to the son.

Had Joseph Irving, junior, in the presence of the representatives of the intestate asserted- in. con-yersation- his right to this slave,-by purchase from-his Hther, and. that the other. (Hannah) was not the slave-sold-him by, the-father, nobody would deny that this-con-versat‘on) ^ uncontradicted or undisputed by them, might be given in evidence of their admission of his rightf weak it might be, but .it would be admissible.- For much-'better reason, we think his public acts in hiring out Hannah, and his exercise of the right of property for so long •a time undisputed, and contrary to his own interest, ought to be permitted to go to the jury for as much as ■it is worth.

The circuit court then, it appears to us, com-'’ nutted no error m this. But secondly, we are told that the evidence preponderated greatly in favor of the plaintiff. Gilliam, the first witness examined by the plaintiff, to identify the negro sold by the elder Irving to his son, the intestate of the defendants, after stating that he heard the conversation between the father and the son about the sale of the land lying in Tennessee, and the property, money, •&c.,given by the father to the son, closed by saying that all he remembered about the matter was but his impressions, and that they were not very strong.

Arthur, the •brother-in-law of the the defendants’ intestate, speaks-only of declarations made by the intestate that Nancy belonged to the estate of his father and not to him, that he intended to buy her, &e. To this testimony of Gilliam and Arthur is opposed the positive testimony of William Jack, one of the defendants. The statute makes Jack a competent witness, and he is certainly no more interested in the estate of his intestate than Arthur is in that of the plaintiffs’ intestate, of which his son is a dis-tributee.

When we add to the weight of Jack’s testimony that of the acts. of Joseph Irving, junior, in his character of administrator of his father’s estate, acts ■done under the inspection of the county court, and in the constructive, if not actual presence of many persons interested in the event, and for so long a time passing under review without censure, and above all, evidently contrary to his own interest, we are inclined to think that the jury did not find their verdict contrary to the weight of evidence, and that the circuit court committed. no error in refusing to grant a new trial.

Its judgment is therefore affirmed.