Barksdale v. Elam

30 Miss. 694

• Court: Mississippi Supreme Court
• Decided: April 15, 1856
• Status: Published

Opinion

Fisher, J.,

delivered the opinion of the court.

This was a proceeding in the Probate Court of Holmes county, to compel the plaintiff in error, as executor of the last will and testament of one Jonathan Carter, deceased, to make distribution of certain slaves, alleged to be part of the estate of the testator. The executor claimed the slaves as his own, by virtue of a certain deed, executed to him by the testator in his lifetime.

This deed contains certain conditions, which, it is said, are contrary to the spirit and policy of our laws, and that the whole instrument is therefore rendered void. It may be conceded, for the sake' of the argument, that every duty which the deed attempts to impose upon the donee, and every condition annexed thereto,, must be treated as absolutely void, yet, under the authority of the case of Weathersby v. Weathersby, 13 S. & M. 685, the donee’s title is not affected by such void conditions. He takes the property discharged from the conditions, supposing them to be void.

Decree reversed, and cause remanded.