Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-06-08
Kirk vs.. York and wife


This was an action of 'trover for the wrongful
conversion of slave hired by York and wife to
Kirk for the year 1856. The plaintiff recovered
Judgment for 81 900, which, from the proof, was
the full value Of the slave.
The title to the slave by the will of Charles Puck
stt (father of Mrs. York; in Mrs. York for life,
with remainder to her children.
No objection appears to have been made, on the
trial to recovery by the plaintiffs (who sued as
theabsolute owners of the property OF the full value
of the slave, though vested with only life interest
in the wife The only question properly presented
BY the record Is respect to the competency of the
witness Wright, who was admitted to give evl
dence for the plaintiff after being objected to by the
defendant.
daughter of plaintiff Mrs. York one of the several
owners of the remainder interest in the slave in
question.
To obviate the objection to his competency,
/ Wright and wife executed release of all the in
terest, (which we have or may have acquired IN
and to any sum of money that may be recovered of
John Kirk in the suit now pending" &c. And,
therefore, Wright the husband, was held con1pe-
tent and was examined for the plaintiffs, to which
defendant objected. The objection that plaintiffs
were not entitled to sue for recover more than
the value of their life interest in the slave, cannot
now be urged by the plaintiff in error, as ground
of reversal such objection having been lmade IN
the Court below 1t only be incidentally consid
cred, in so far it may be necessarily involved
Wright.
If the recovery had only been sought for the
value of the life interest of the plaintiffs, in the
slave. perhaps no valid objection could have been
made to the competency of the witness, for ID re-
covery of damages to that extent neither he nor his
wife as one of the owners in interest remainder
would have had any legal interest in the event of
the suit, though interested in the question perhaps
But taking the case as it stands the entire value
of the slave having been sued for. are recovered
arrffp ha oV.d
ed as disqualified on the ground of interest?
As husband merely of one of the owners of the
remainder interest he certainly has present in
terst and it is only in the double contingency of his
surviving his wife, the tenant for life also, that
he can acquire any future interest His marital
right cannot attach, until the falling of the life es
tate, and even then lin the event of his surviving
his wife) before distribution Of the slaves, she
may exclude his right by asserting her equity to
settlement upon her, to her separate use.
1t might well be doubted whether such an inter
est is not too contingent and remote 10 dsqusfy the
| witness.
But be this as it may the release operates upon
all the interest of the husband, and estops him to
set up any claim to any portion Of the damages re-
covered.
This is So although the release may be inopera-
tive as to the wife because not executed in such
| manner as to bind her.
It is enough, to obviate the objection to his com
] potency, that his interest is Invested.
4
equity, the owners of the remainder interest in the
slave, including Mr.. Wright's might be set up
| claim to the entire amount of damages recovered
] in the present action, allowing to the latter the
| annual interest upon the fund during the contnu-
ance of her life interest, in lieu of her interest in
| the slave; the admission would be unaVailing be-
cause the release would efsctually preclude the
! husband from asserting any claim to the fund in
equity, tif such suit might be maintained) as in
| the present suit at law.
Or if it even be assumed, that the owners of the
remainder interest, (who otpsrties to the pre-
sent suit might bring another action against Kirk
! to recover damages for the value of their interest
in the slave; (though we intimate no opinion upor
the question whether or not they might do so) it
clear, that the right to do so if admitted to exist
! would have no influence upon the question o.
Wrights competency nthe present suit. because the
right and interest Of the remainder man, are, II
this view, entirely separate end distinct from those
| of the tenant for life.
There is no error in the Judgment, and il will ot
| affirmed. MCKINNEY
] Correct copy; J, P. CLAEE, Clerk.