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Kirkpatrick es. Davidson.

Court held that a voluntary acknowledgment will dispense with the written proof of a trust; and further, that equity would compel the acknowledgment of a parol trust though the Statute of Frauds was relied upon.

In Letcher vs. Letcher, 4 J. J. Marsh. R. 592, the Court of Appeals in Kentucky distinctly recognise the doctrine that parol evidence is admissible to establish a trust in personal property.

As to the right to create a remainder in chattels "by word [2.] of mouth," to adopt the expressive language of the courts, the process of reasoning by which the power is negatived, is short, simple and to my mind unanswerable.

Anciently there could be no limitation over of a chattel, but a gift for life carried the absolute interest. Then a distinction was taken between the use and the property; and it was held that the use might be given to one for life, and the property afterwards to another, though the devise over of the chattel itself, would be void. It was finally however settled, that there was nothing in that din tinction, and that a gift for life of a chattel was a gift of the use only, and the remainder over was good as an executory devisen, 2 Kent, 285; 2 Black. Com. 398. And the general mie a established by numerous decisions, is, that if a man either by deed or will limit his chattels to A for life with remainder may is B, the remainder is good. 1 Burrow. 284; 6 Craise, 437; 3 0 50; 10 John. 12; 2 Serg. & Rarole, 59.

Mr. Coleridge in his edition of Blackstone as cited in a Stephens' Commentaries, still insists there can be no TentRinder N chattels created by deed, and that such remainder is grond son og way of executory devise. But the cases quoted, and mom them which might be referred to, show that this distinction my since been disregarded. And while it is true, that na ha cases to be met with in the books have are may now be considered as settled, that remuntary of you have f may be created equally by grant on Zerne

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Kirkpatrick vs. Davidson.

perhaps the wisdom of the old common law is no where more conspicuous than in totally discountenancing all such limitations. 1 Tuck. Com. 312.

Now it will be perceived that the common law has never gone further than to extend the right to create remainders over in personal estate, by writing; such were its provisions at the beginning of the Revolution, when adopted by this State. The inquiry, then, very naturally presents itself, by what authority can courts take it upon themselves to dispense with this writing? It is not pretended that there is any statute still further extending the common law; and, in the absence of such legislation, where the common law stops, we must stop.

And public policy stands decidedly opposed to a wider departure from the ancient doctrine of the law as to these limitations. If even, when evidenced by grant or will, they are justly obnoxious to the eloquent strictures of Judge Tucker, what shall we say by them when resting only in parol? Slaves and other personal property, in the possession of one person, with remainder over to some half dozen others in succession, to any number of lives in being, and twenty-one years and the period of gestation afterwhat inextricable confusion; what a rich harvest of perjury.

The case of Brummet vs. Barber, 2 Hill S. C. R. 543, fully sustains the position of counsel for the plaintiff in error, to wit: that in a gift of personal property, the donor may verbally create a limitation over either by way of trust, or as a direct gift. I regret to add as I must do, but with profound respect, personal and judicial, for the eminent individual who delivered the opinion of the Court in that case, that the decision pro tanto, was not demanded by the facts of the case; the trust being sufficiently manifested by writing to take the case out of the statute, had real estate instead of slaves been involved in the suit. And the receipts in this Carolina case differ from the letters in the one before us, in this, that the former plainly and fully set forth the terms and tenure by which the persons in possession took and held the property; whereas the letters written by Watson Shaw furnish no such evidence.

Shall it be answered that it is absurd to maintain that one may convey chattels absolutely by parol, or create a trust in them, and yet to hold that he cannot in the same way transfer them in the life of another, and then that they go over in remainder or reversion? The reply is, that such undoubtedly was the ancient common law. For at the very period when it was held that there

Kirkpatrick vs. Davidson.

could be no remainder in chattels, nevertheless the owner was allowed to dispose of them absolutely, or raise a trust in them by parol. Thus demonstrating that there is no legal incongruity in the two propositions.

I trust that the day is not distant when the titles to slaves shall pass only by writing. The more that parol testimony is restricted, the better, whether it be used to create or destroy rights. I always involuntarily tremble for the rights of parties where they are dependent upon the unassisted memory of witnesses. In England nuncupative wills are entirely abolished; and promises to take cases out of the plea of infancy and the statute of limitations, must be in writing. I will not say that we need another statute for the prevention of frauds and perjuries; or with Lord Nottingham, that every line in that which we have, is worth a subsidy, but I will say, and it is universally felt and admitted, that further legislative enactments are greatly needed in this State, to discourage and totally cut off the great temptation and facility of defeating justice by oral testimony.

It only remains, in conclusion, to subjoin, that we concur cordially in the opinion of the Supreme Court of Appeals in Virginia, in Fitzhugh vs. Anderson and others, 2 Hen. & Munf. 302," that no remainder in a slave can be created by any verbal gift, made at the time of the delivery to the first taker." And that consequently the contingent limitation over in this case, upon a dubious and uncertain person, namely, the children of Ann Eliza Shaw, then not in esse, is void.

It is not necessary that we should decide who has the title to these slaves; as the plaintiffin trover must recover upon the strengh of her own title, it is enough to declare, as we do, that the paramount title to the property is not in her.

The judgment below must be affirmed.

Trrppe & Slade and others vs. Lowe's adm'r. and others.

No. 46.-TRIPPE & SLADE, and HUDSON & THOMAS and others, plaintiffs in error 28. URIAH WARD, administrator of William J. Lowe and William V. McGehee and others, defendants in error.

[1.] In cases of fraud (with the exception of fraud in obtaining a will) courts of equity and courts of law have concurrent jurisdiction, and the court which first acquires Jurisdiction is entitled to retain it.

[2] Where a bill was filed by judgment creditors to set aside a conveyance as fraudulent, it was held, that a court of equity had jurisdiction, notwithstanding the creditors might have sued the donee as executor de son tort, after the death of the donor,

Bill and Demurrer, From Putnam Superior Court. Demurrer sustained and bill dismissed. Judge MERRIWETHER presiding. March Term, 1847.

For the facts of the case, and the error alleged, see the opinion of the Supreme Court.

CONE, for the plaintiffs in error.

HILL, for the defendants in error.

Judge CONE, for the plaintiffs, made the following points: First. A court of chancery has jurisdiction to assist a judgment creditor, to discover and reach the property of his debtor fraudulently conveyed away, after such creditor has pursued his remedies at law to every available extent. 1 John. Ch. R. 296; 4 Ib. 687; 3 Munf. R. 521; 1 Paige R. 305; 1 Munroe R. 106, 222; 1 Paine

R. 525.

Second. Courts of equity have concurrent jurisdiction with courts of law in all cases of fraud, except perhaps in the single case of fraud in the obtaining of a will. 1 Story Eq. 210, 287, 395, 405; 2 Atkyn's R. 172; 3 Ib. 167; 1 Ves. R. 160; 2 Randolph R.

384.

By the Court-WARNER, J. delivering the opinion.

This was a bill filed in the Court below, by the creditors of William J. Lowe, deceased, against Uriah Ward, his administrator, and William V. McGehee et al. to subject certain property therein specified to the payment of their debts. It appears from the record,

Trippe & Slade and others vs. Lowe's adm'r. and others.

that the complainants have obtained judgment against Lowe's administrator for their respective demands, quando acciderint, and the sheriff has returned on the executions issued thereon, “no property of the defendant." That subsequent to the contracting of the debts due the complainants, Lowe, the intestate, executed a deed of trust to said McGehee as trustee for his wife Elizabeth, and Anna Frances, child of said William J. Lowe and his wife Elizabeth, by which deed he conveyed all his visible property, without making any provision whatever for the payment of the debts then due the complainants; and that, at the time of the execution of said deed of trust, the said William J. Lowe was nearly or quite in a state of insolvency. It is also charged, that said deed was voluntary and without any valuable consideration moving from the said McGehee, or from any one else, to the said Lowe, and was executed for the purpose of defrauding his creditors. The complainants pray that McGehee may be decreed to pay their debts out of the property so conveyed to him in trust as aforesaid.

The defendants filed a demurrer to the complainants' bill, on the ground that they had an ample and complete remedy at law. There was another ground of demurrer mentioned in the record, but it was not urged before this Court.

The Court below, on hearing the demurrer, sustained it, and dismissed the complainants' bill, on the ground that they had a full, complete, and adequate remedy at law, inasmuch as William V. McGehee was liable to them as executor de son tort of the estate of William J. Lowe; to which decision of the Court the complainants excepted, and now assign the same for error in this Court.

Taking the charges in the bill to be true, as the demurrer [1] admits, the conveyance executed by Lowe to McGehee was fraudulent as against existing creditors, and we concur in opinion with the Court below, that McGehee might have been sued as an executor de son tort. But upon what principle would the creditors have been entitled to judgment against McGehee as executor de son tort of William J. Lowe, deceased? Clearly upon the ground that the conveyance of the property was a fraud on the rights of the existing creditors of Lowe. In all cases of fraud (with the exception of fraud in obtaining a will) courts of law and courts of equity have concurrent jurisdiction. 1 Story Eq. 195, sec. 184; Bacon vs. Bronson, 7 John. Ch. R. 201; White vs. Jones, 4 Call. R. 253; Singery vs. Attorney General, 2 Harris & John. R. 487. Mr. Justice Story states the rule to be, "that, with the exception of wills, as

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