Davis v. Foster

15 Mo. 395

• Court: Supreme Court of Missouri
• Decided: January 15, 1852
• Status: Published

Opinion

Ryland, J.,

delivered the opinion of the court.

The construction of the conveyance by George S. Foster of the negro woman, Dice, to the defendant, Margaret Foster, is the principal matter in the present controversy. This conveyance contains the following clause, “to have and to hold the said negro woman, Dice, during her natural life.” “The increase of the said negro woman is reserved for the heirs of said James S. Foster and to be divided among the said heirs of James S. Foster by me or my personal representatives, so as to make an equal distribution, taking into consideration what I have given to said children.” “And at her death (that is the defendant’s death) the negro girl Dice is to be divided among said minors (naming them) equally.

The plaintiffs claim the increase of Dice,, under this conveyance.

Upon a careful examination of this conveyance, it becomes clear that there is no grant in it of any present estate in the increase of the negro woman Dice, to the children of James S. Foster, the-grand children of the grantor. Neither the terms of the conveyance, nor the intent of the grantor, as gathered from the whole instrument, can be construed into a grant of any present interest in and to the increase of the woman Dice, to the grand children of George S. Foster. “The increase of the woman is reserved for the heirs of James S. Foster to be by me or my personal representatives distributed,” &c. Here is no passing of any present interest in the increase of Dice to the heirs of James S. Foster. Nor can such terms be made into a grant. The obvious design of the grantor was to save the controlling power and the interest in the increase to himself, which he might hereafter distribute, or which his legal representatives might distribute.

To construe this instrument into a grant of a present estate in the increase of the negro woman Dice, to the heirs of Jas. S. Foster, would produce the absurdity of supposing the grantor, George S. Foster, intended to give power to those minors to have a partition or sale of each child of the negro woman, Dice, as soon as it was born.

The deed of conveyance then, in the“opinion of this court, passed no present estate in the increase of Dice to the children of James S. Foster. Neither! the words of the instrument, nor the intent of the parties allow of the passing of any estate in such increase to the grand children of George S. Foster.

The court below declared the law to be, “That under the deed from George S. Foster to Margaret Foster, the plaintiffs cannot have a partition of the slaves, until the death of George S. Foster, or until he orders or authorises a partition.” This instruction is wrong in the latter clause of it. It should have stopped at the simple declaration, that the plaintiffs were not entitled to a partition in these slaves. But as the judgment of the court below, was, upon the whole case, for the right party, and as the qualification in the instruction was to the injury of the defendant, who notwithstanding had judgment, the judgment below is affirmed,

the other judges concurring.