Smith v. Denny

37 Mo. 20

• Court: Supreme Court of Missouri
• Decided: October 15, 1865
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

The petition in this case shows no cause of action. The deed from Rachel Denny to John Denny vested the title to the slaves in the latter, in trust for Mary Smith during her natural life. Should she die before her husband, then he was to have the use and control of them whilst he lived ; remainder then to vest absolutely in the issue of the said Mary, if any survived her ; but if she died no issue surviving, then they were to revert to the donor.

Rachel Ann Smith was the only issue born of the marriage of John Adam Smith and Mary Denny, and she survived them both, and by the terms of the deed of trust the title to the slaves then vested in her absolutely. And when John Denny was appointed by the bounty court of St. Charles county guardian of the person and curator of the estate of Rachel Ann, he was in possession of the slaves by virtue of his appointment as such curator, and not under the title vested in him by the deed of trust.

Upon the death of the said Rachel Ann, the property being personal property belonged to her administrators and not the heirs. The appellants, who claim to be the heirs, are proceeding as if it were real estate ; but, being purely personal in its nature, there must be an administrator to represent it before an adjudication can be had in court. Personal property must be administered on before the heirs can claim their distribution shares.

The petition and sale on partition were irregular, and evidently proceeded on the belief that on the death of Rachel Ann Smith the slaves reverted back to respondents or their intestates; but the absolute legal title being vested in her, they went to her administrator.

The record shows clearly that the guardian, John Denny, whose settlement is now sought to be set up as a bar, never charged himself with the slaves, nor accounted for them; but, by joining with the other parties in the petition for partition, and also in the bill of sale, he disclaimed all title in his ward, and asserted it in himself and associates.

The appellants showing no cause of action in this proceeding, the judgment is affirmed.

The other judges concur.