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| Title |
Decisions of the Supreme Court of Tennessee |
| Source ID |
S67722 |
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DEER and WIFE, et. al. vs. DEVIN.
NASHVILLE, December, 1839.
Pages 66-74.
Names Elizabeth NOWLIN Devin's children and her father. Shows that she moved to Tennessee from Pittsylvania County Virginia sometime around 1825. |
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| Notes |
- [page 66]
In Virginia a parol gift of a slave, accompanied and followed by a permanent
and coutinuing possession, is good Randolph's Rep. 135.
A limitation in remainder iu the case of a parol gift of a slave is void, and
the absolute title to vests inthe.donee for life, to whom possession is delivered.
This is the law in Virginia and in Tennessee.
On the 25th day of July, 1839, Gilbert Deer and wife
Susan, (formerly Susan Devin,) William Devin, John Devin,
David Nowlin and his wife, Elizabeth, (formerly Elizabeth
Devin,) all residents of the county of Marshall and State of
Tennessee, presented their bill to the honorable Edmund
Dillahunty, one of the judges of the circuit courts, verified
by the affidavits of David Nowlin, Gilbert Deer and John
Devin, three of the complainants. The bill charged that
complainants, together with Lucy Beck, who resides in the
State of Virginia, and for whom they file this bill as well as
for themselves, are the legitimate children of Elizabeth Devin,
and that Elizabeth Devin, their mother, was the legitimate
daughter of Bryant W. Nowlin, deceased, who lived and died
- [page 67]
in the county of Pittsylva-
nia, in the State of Virginia; that made a will, in which was contained the following clause: "I lend to my daughter, Elizabeth Devin, a negro girl, named D8vln- Hannah, and her increase, during her natural life, and at her death, my will and desire is, that said negro and her increase be equally divided, by lot or sale as may best suit, among the children of my daughter, Elizabeth Devin, which she now hath or may hereafter have lawfully begotten, to them and their heirs forever, which she agreed to take for her part of my estate forever;" that said B. W. Nowlin died in the year 1810, leaving the deed of 1806 as his last will and testament: that this will was proven and registered according to the laws of Virginia; that said Elizabeth Devin took possession of said property under the will, and continued to hold it, putting up no other claim except that of a life estate until recently? that she now claims to be the exclusive owner of said Hannah and her children, amounting to fourteen in number; thai she had sold one of the children of said Hannah, and appropriated the proceeds of the sale to her own benefit; that she declared she would sell the balance of them; that they were worth six thousand dollars. The bill insisted that, by virtue of the premises above set forth, they were entitled in remainder to the said Hannah and her increase, to take effect upon the death of Elizabeth Devin. The bill prayed that Elizabeth Devin, a resident of Marshall county, be
made a party defendant to the bill, and that an attachment be issued, directed to the sheriff of Marshall, commanding him to take said negroes into his possession and to hold them'subject to the final decree. of the chancery court, unless said Elizabeth should enter into bond with approved security for their forthcoming to answer the decree, which should then be made in the premises. The bill further prayed that said Elizabeth be required
to account for the value of the aforesaid slave by her sold,
and for that purpose that a receiver be appointed, and that the other slaves mentioned should be hired out and the hire thereof be appropriated to the use and benefit of complainants until it should amount to the value of the slave so sold, to be kept and enjoyed by complainants Bryant W. Nowlin, their grand-father, in the year 1806,
- [page 68]
paying to said Elizabeth the lawful interest on the value as it
December, should fall
due during her natural life.
D"r On the said 25th
day of July, 1838, his honor judge Dilla-
D*vin- hunty issued his order to the clerk of the chancery court at
Shelbyville, commanding him, upon the complainants giving
bond with security by him to be approved, in the sum of
eleven thousand four hundred dollars, to prosecute their bill
with effect, or in case of failure to pay all costs, charges and
damages consequent thereupon, to issue an attachment as
prayed for in the bill of complainants. On the 27th, the
complainants filed their bill in the chancery court at Shelbyville,
Bedford county, giving bond in conformity with the
order of judge Dillahunty. The attachment was issued and
executed, and defendant retained the negroes by executing
bond in the sum of eleven thousand four hundred dollars
with approved security, conditioned that she should not rer
move the said property beyond the jurisdiction of the court,
and that it should be forthcoming to abide the final decree of
the chancery court.
To this bill Elizabeth filed her answer on the 25th of Sep-
tember, 1838.
She admits that Susan Deer, Wm. Devin, Jno. Devin and
Elizabeth Nowlin are her legitimate children, and that she
was the daughter of Bryant W. Nowlin, who died in 1810 in
the county of Pittsylvania in Virginia; that he made his will
in 1806; that the clause inserted in the bill from said will
was correctly extracted; that his will was proven and registered
in the said State and county; but denies that she took
possession of said Hannah under said will, or that she had
continued to hold her or her increase by virtue of the said
will, or that she had never claimed more than a life estate in
the said slave and her increase. On the contrary thereof,
she insisted that she derived her title to said slave by virtue
of a parol gift from her father in the year 1804, previous to
the execution of said will, and that the gift was without re-
striction, condition, or limitation; that the possession was de-
livered to her at the time by her father, and had been continuous
from the date of the gift till the filing of the bill; that
- [page 69]
her title was absolute, and that she had always claimed Han-
nan and her increase as her absolute property.
She alleged that in 1825, when she was about to leave the
State of Virginia for the State of Tennessee, Richard Beck
and his wife Lucy, for whose benefit with the others this bill,
as therein stated, was filed, instituted their suit in the county
court of Pittsylvania county, in chancery, in which bill they '
allege the same matters now alleged in this bill, and attempted
to have respondent enjoined from removing said negroes
from the State of Virginia upon the ground that respondent
had only a life estate therein; that in that suit respondent set
up the same defence urged in this bill, to wit: that said slaves
were the absolute property of respondent, by virtue of a gift
mode in the year 1804, and possession delivered in accordance
therewith; that complainant, Beck, and wife, replied to the
answer of respondent, and the cause came on for hearing on
the 24th day of November, in the year 1826, upon the bill,
answer, replication and proofs, and that the eyparte order
previously made, restraining this respondent from removing
the said slaves from the State of Virginia, was discharged and
the bill dismissed at the cost of the said Beck and wife. She
insisted that the question involved in this suit was therefore
adjudicated by a court of competent jurisdiction, and the
rights of the parties, so far as VV. C. Beck and wife and respondent
were concerned, were settled conclusively. She
admitted that Hannah had fourteen children since she came
to her hands, and that she had possession of them all with
the exception of one which she had sold for the sum of
three hundred and fifty dollars, and that she had appropriated
the said sum, with the exception of forty dollars, to the payment
of the debts of complainants, William and John Devin
and Gilbert Deer; that she had sold said slave with the full
knowledge and acquiescence of complainants, so far as she
had ever heard-
At, November rules, 1838, the complainants filed a general
Replication.
The record from Virginia was filed on 28th September*
1839, which sustained the allegations of the answer in re-,
gard thereto, and much testimony was taken in the cause.
- [page 70]
At the August term, 1839, it was set for hearing by the de- "
7' tory testimony relating to so remote a transaction there are
Dtvin-
some uncontroverted positions of fact. fendant. Amongst a mass of contradictory and unsatisfac-
It appears that Bryant W. Nowlin made his will in 1806
and died in 1810; that he had, at his death, thirteen children,
amongst whom was the defendant; that he was possessed of
a tract of land and eleven negroes til his death; that one of
his children had been provided for previously to the execution
of the will; and that two years before the execution of the
will, in the year 1894, the slave Hannah, at about the age of
fifteen years, was delivered to defendant in full discharge of
her claims against her father's estate; that at the death of
Bryant W. Nowlin the defendant set up no claim to any
other portion of his estate, and it does not appear satisfactorily
that she assented to its provisions or objected thereto;
that the will was proven and registered in Pittsylvania
county, Virginia; that the decedent directed, after payment
of his debts, that his wife should hold his land (one hundred
and fifteen acres) during her natural fife, and that at her death
it should be sold and the proceeds equally divided between
eleven of his children, of which defendant was not one; and
that when his youngest son should become of age, (in the
year 1810,) the eleven slaves should be equally divided by lot
or sale amongst the same eleven children, to be held by
them and their heirs forever; that the defendant claimed and
received nothing from her father or her father's estate except
the slave in question; that her possession of Hannah from
1804 had been continuous and unbroken.
In the lapse of thirty years the descendants of Bryant W.
Nowlin scattered over the valley of the Mississippi in the
States of Missouri, Tennessee and Mississippi, and they being
the chief witnesses in regard to a family transaction,
their testimony, collected from remote points, presents the
most contradictory accounts of the facts. One of the sisters
states that there was an absolute gift of the slave, whilst
various other witnesses state that the defendant claimed only
a life estate in the property till the period of 1825, when she
attempted to remove them from Virginia, and her attempt
- [page 71]
was resisted and delayed by the complainant, Beck, and wife,
by bill in chancery. It seems to have been the understand-
ing of most of the children of Bryant W. Nowlin, from the
year 1804, the date of the delivery of the possession, that
the defendant had received the slave from her father as a
gift during her natural life, limited, in remainder, to her
children.
The chancellor, Bramlett, being of opinion that the negro
woman Hannah, and her children, were, by the last will and
testament of Bryant W. Nowlin, loaned to the defendant
during her life, and that the absolute title to the said slave,
at the death of said E. Devin, was bequeathed "to her legitimate
children, decreed that complainants were entitled to
them at the death of defendant; and believing that their
rights were endangered by the acts of the defendant, ordered
that said Elizabeth Devin give a bond with good and sufficient
security, in the sum of dollars, to the clerk and master,
conditioned that said Elizabeth have the said Hannah and
her increase forthcoming at her death, to be divided equally
amongst her legitimate children, in accordance with the pro*
visions of the will of B. W. Nowlin, and in the event that
said Elizabeth failed in the course of six weeks from the
date of the decree to give such security, that the clerk and
master should take the said negroes into his possession as receiver;
that he should hire them out, pay the proceeds of
their labor to the said defendant from time to time, as the same
should be collected, and that she have the said slaves ready
at the death of said E. Devin to be delivered to the complainants.
The court further ordered that, in the event that
defendant failed to give security, as required by the decree,
she should deliver the said slave to the clerk and master
upon his application for them. The court further ordered
that she pay the costs of this suit.
From this decree the defendant prayed and obtained an
appeal to the supreme court. E. J. Frierson, for the defendant.
1. The defendant acquired
a good title to the property in controversy by virtue
of the statute of limitations. She held it from 1804 till 1810.
- [page 72]
There was no pretence that she held it during this period by
virtue of a will, the contents of which were not known even
to his own children till his death. On this point the only
Dcvini troversy which
can arise is as to the character of the possession.
If the defendant took possession of the slave by virtue
of a parol gift, and if a parol gift of a slave be void by the
laws of Virginia, still it fixes the character of her possession,
and establishes the fact that she held the slave as her own
adverse to the claim of all others. The presumption of law
is that she as donee held for herself. This presumption is not
rebutted. The statute of limitations therefore divested Bryant
W. Nowlin previous to his death of all interest in the
slave, and the clause in his will imposing a limitation upon
the title of the defendant was void. "
2, If it be admitted that Bryant W. Nowlin made a parol
gift of this slave, with limitation in remainder to children
of defendant, to take effect after her death, what would be
the effect of such a state of facts upon the rights of the parties?
Whatever may be the laws of Virginia in regard to a
parol gift of the entire and absolute interest in a slave, a gift
by parol of a life estate would be good. A remainder created
by parol is void, both by the laws of Virginia and of this
State. What becomes of the remainder interest where the
remainder is void and the life estate valid? Does it revert to
the donor or grantor, or does it vest by operation of law on
the owner of the life estate? It vests undoubtedly in the
owner of the life estate. 10 Yer. 511.
Nicholson, for the complainants, commented upon the facts
to show that the clause in the will limiting the right of the
defendant in the slave to a life estate with a remainder to
her legitimate children, was made in conformity with the
views of the testator at the time he delivered the slave to his
daughter, and that she received the slave with that understanding,
kept possession of her with that understanding^
acquiesced in the provisions of the will, and at various and
remote periods, during a series of years, declared that she
held a life estate only. There was no gift previous to the
will, but only a promise or agreement to give by will. The
- [page 73]
title of the defendant is derived from the will, and conse-
quently the decree ot the chancellor is correct.
The statute of limitations is not pleaded by the defen-
dant and is not relied on in the answer and cannot now be
set up.
Meigs, on the same side. There can be no presumption
of a gift in this case deduced from the possession, because
there is no clear evidence under what title the possession
was taken and continued. If under the will, then the onus
was on the defendant to show a gift by independent evidence,
by evidence other than the mere fact of possession. In this
case the proof stands in cquilibris whether the possession
was under the will or under a previous gift, consequently a
gift is not to be inferred from the possession, that being as
consistent with the will as with the gift.
REESE, J. delive red the opinion of the court.
We have looked into this record with entire willingness
to maintain, if we could, the decree of the chancellor; for
if the expectations of the complainants to enjoy ultimately
the property in dispute shall depend, not upon the will of
their father, but upon the dying intestate of the defendant,
without alienation, their expectations however, from the ties
of nature reasonable, may perhaps be disappointed. But in
point of law, one thing is undeniable, namely, that in Virginia,
a parol gift of a slave, accompanied and followed by a
permanent and continuing possession, is good, and vests the
title in the donee. See 6 Randolph's Rep. 135. And whether
we look into all the proof which the chancellor felt himself
at liberty to do or not, one thing, as a matter of fact, is
satisfactorily established, namely, that the father of the complainants
and defendant gave to the defendant the negro girl
Hannah, the mother of all the rest, in the year 1804, in full
of all her future claims upon his estate. She was so received
by her; possession was then delivered to her, and has continued
with her ever since. This, by the law of Virginia,
made the negro hers. There is no pretence that she gave
back and delivered possession of the negro to her father. Of
- [page 74]
course, in 1806, when the will bears date, or at the time of
Hinkle . * his death, some years after, the testator had no interest in or
devises in the will nothing but the negro to the defendant
for life, with remainder to her children. So no question of
election arose, and the executor of the will proves, both in
the case in Virginia and in this State, affirmatively that the
defendant claimed or received no distribution under the will.
If we could look into the affidavits made by the complainants
in the case in Virginia in maintenance of their own claims,
which we are satisfied we cannot, still, the most they would
establish would be that the parol gift of 1804 was to the
defendant for life, with remainder to the complainants. And
then by the law both of Virginia and Tennessee the limitation
in remainder in the case of a parol gift of a slave must
be held to be valid, and the absolute title would vest in the
donee for life, to whom possession was delivered. v disposing power and control over the negro in question. He
So we are of opinion that the decree must be reversed
and the bill be dismissed, but without costs.
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