Knight v. Donahoo's heirs

42 Ky. 277, 3 B. Mon. 277, 1842 Ky. LEXIS 155

• Court: Court of Appeals of Kentucky
• Decided: September 20, 1842
• Status: Published

Opinions

Jirnafi Marshall

delivered the opinion of the Court.

There was no error in admitting the deposition of Elizabeth Donahoo. She had no legal interest in giving her husband an estate for her life, in the slaves, rather than a fee simple; and any bias which she may have had in establishing a limitation in favor of her own children, rather than a descent to the heirs of herbusband, would not affect her competency.

The limitation being proved'by herself and another witness, must be regarded as sufficiently established, and seems, moreover, to have been a probable and just disposition of the slaves, under the circumstances; and although the gift to E. Donahoo for life, and to her children upon her death, was by parol, yet. as the possession was delivered to, and held by her husband, under that gift, we are of opinion, that in a contest between his general heirs and the children of his wife, to whom the remainder was limited, the terms of the gift must prevail. In such a contest we do not perceive why even the voidness of the limitation over, should operate to enlarge the express life estate of the wife, for the benefit of the husband and his heirs.

It cannot be admitted at this day, that the gift of a chattel for an hour, or even for life, vests the absolute ownership in the donee.

Wherefore, the decree is affirmed.