Slack v. Slack

26 Miss. 287

• Court: Mississippi Supreme Court
• Decided: December 15, 1853
• Status: Published

Opinion

Mr. Justice FisheR

delivered the opinion of the court.

This was a proceeding in the probate court of Tallahatchie county, by the widow and heirs at law of Joseph Slack, deceased, to obtain distribution of the intestate’s estate.

The error complained of arises out of that part of the decree directing the sum of $564.16, placed in the hands of Tatum by the intestate, for the purpose of purchasing a slave in the name of and for his infant son, the appellant.

The facts relating to this part of the decree are briefly these: Tatum was indebted to the intestate in a certain sum of money, and it was agreed between the parties that the former should make a purchase of a negro girl in the name of the appellant. The purchase was accordingly made. The whole evidence in the record shows that this was an absolute gift by the father to his infant son, to be by him enjoyed over and above an equal distributive share with the codistributees of the intestate’s estate.

The intention of the father to treat the money or slave as an absolute gift, is fully established by evidence free from all objection, admitting the incompetency of Tatum as a witness. This intention, when correctly ascertained, must control the gift, and make it either absolute, or a mere advancement, according to the technical meaning of the term.

Entertaining no doubt that the gift was intended to be unconditional, we think the court below erred in requiring the money to be brought into hotchpot.

Decree reversed in this respect; and decree here, that said money is not part of the intestate’s estate liable to distribution.