Abercrombie's Executor v. Abercrombie's Heirs.

As to the legacies directed by the will to the children of Nancy, it is certain that, if it was the intention of the testator they should vest at his death, they must be held void, for the reason, that slaves are incapable of taking; but the decision of this question depends upon the rational interpretation of the whole instrument. There are no words which force us to this conclusion. The legacies are not to be paid until the period fixed for the emancipation of the legatees, and there is no express gift of the legacies before the time of payment. In addition to this, the gift is to a class of persons who are incapable of taking before that time; and these circumstances, we think, are conclusive as to the intention of the testator, that the payment was not to be made until the leading object, which it is apparent he had in view, was accomplished—the emancipation of the slaves referred to. Upon this construction, the legacies to the children were valid.-Atwood v. Beck, supra.

The bequest to the slave Nancy was void, as she had no capacity to take; and she herself must be regarded as property not bequeathed by the will, for the reason, that the provisions in relation to emancipation do not apply to her, and she is not embraced in the trust which authorizes Ware to sell and dispose of the property. Although the last is general in its terms, it is manifest that it was not the intention of the testator to include her, as he gives her a portion of the proceeds of the property to which this trust extends; and although the gift is void, it is not the less expressive as indicating the intentions of the testator in this respect. It fol lows, necessarily, therefore, that this slave, and the portion bequeathed to her out of the proceeds of the other property, must be regarded as not disposed of by the testator, and subject to distribution.

In opposition to the views we have expressed upon the last point, it has been urged, that if the slave Nancy is not included in the emancipation clause, and the legacy to her is void, still under the will she becomes the absolute property of Ware. This position is not tenable. The property was conveyed to Ware for the execution of certain specified trusts, and for no other purpose. Those trusts were, the manumission of certain slaves, and the payment of the legacies bequeathed

May v. Kelly & Frazier.

to them. Where the testator fails to make a complete and effectual disposition of all his property, the law makes the disposition which he has failed to do; and the principle equally applies to those cases where the estate is devised or bequeathed to a trustee. A resulting trust to the property not disposed of is then created in favor of the heir or distributees.-1 Jarm. on Wills, 502, and cases there cited.

It results from the views we have expressed, that the decree of the chancellor was in all respects correct.

Judgment affirmed, at the cost of the appellant.

MAY vs. KELLY & FRAZIER.

[ACTION UNDER CODE, AGAINST OWNERS OF STEAMBOAT, ON BILL OF EXCHANGE DRAWN BY CLERK, AND ACCEPTED BY CAPTAIN.]

1. Drawee only can accept, except for honor.—Where a bill of exchange is directed to a particular person, nobody but the person to whom it is directed can accept it, except for honor; and therefore, in declaring against one as acceptor, a count is demurrable, which alleges that the bill was payable at a particular counting-house, but does not aver that it was directed in blank, or that it was drawn upon the defendant, or that he accepted it for honor, or that he resided or did business at said counting-house.

2. Agent's authority to accept must be averred.--In declaring against the principal, on a bill accepted by his agent, the agent's authority to accept must be averred; it is not suficient to allege, that he was the agent, and as such agent accepted for the principal.

3. Captain of steamboat cannot bind owner by individual acceptance.-The acceptance of a bill of exchange by the captain and master of a steamboat, in his own name as captain, does not bind the owner as acceptor.

APPEAL from the Circuit Court of Mobile.

Tried before the Hon. C. W. RAPIER.

THIS action was brought by Kelly & Frazier against James T. May, on a bill of exchange of the following tenor:

"Exchange for $476. Louisville, Ky., November 11, 1852. "Nine months after date of this first of exchange (second of same tenor and date unpaid), pay to the order of the Mer

May v. Kelly & Frazier.

chants' Louisville Insurance Company, payable at the co. room of May & Vanhook, New Orleans, four hundred and seventysix dollars, value received, and place the same to account of insurance on S. Bt. Messenger.

"To Capt. B. W. Bell,

for St. Messenger & owners,
Mobile, Ala.

FRANK BELL, Clerk."

The complaint contained three counts-to-wit :"The plaintiffs claim of the defendant $476, with interest, upon the acceptance by B. W. Bell, captain of the steamboat Messenger, for said steamboat and her owners, of which steamer defendant was then owner, of the .draft of Frank Bell, clerk', dated Louisville, Ky., November 11, 1852, for the sum aforesaid, payable nine months after that date at the counting-house of May & Vanhook in New Orleans, to the order of the Merchants' Louisville Insurance Company, (for insurance of said steamboat,) and by said company (by Wm. Prather, secr'y) endorsed to said Kelly & Frazier; which draft has been duly protested for the non-payment thereof, and is still unpaid; of all which said defendant had due notice.

"Also, upon the acceptance by the defendant, by B. W. Bell, of another draft, in all respects like the one above described, and which is still unpaid.

"And plaintiffs, by leave of the court now here granted, further complaining, claim of said defendant the further sum of $476, with interest thereon, for that whereas, heretofore, to-wit, on the 11th day of November, A. D. 1852, the said defendant was owner of a steamboat, named and called 'Messenger', and one B. W. Bell then the captain and master of said boat, and agent of the owner or owners thereof and of the defendant; and the said B. W. Bell, as such captain and agent, then accepted a draft, or bill of exchange, by writing his name across the face of it, thus, B. W. Bell, capt.'; drawn and dated on the year aforesaid by one Frank Bell, who was then clerk of said steamboat and keeper of the accounts thereof, upon and addressed to the said B. W. Bell, captain and agent as aforesaid, as such, by the name and addition of 'Capt. B. W. Bell, for st. Messenger & owners, Mobile, Ala.', for the sum of $476; payable nine months after the date thereof, at the counting-room of May & Vanhook in New Or

May v. Kelly & Frazier.

leans, to the order of the Merchants' Louisville Insurance Company, for insurance of said steamboat by said company; who then and there endorsed, by Wm. Prather, their secretary, the said bill of exchange to the plaintiffs; which bill of exchange is still wholly unpaid."

The defendant demurred to the complaint, but his demurrer was overruled; and he then pleaded the general issue.

On the trial, as appears from the bill of exceptions, the plaintiffs read in evidence the bill of exchange declared on, with the endorsements thereon, and then proved, by one Thomas Adams, that said defendant, at the date of said bill of exchange, was the owner of said steamboat Messenger, B. W. Bell the captain, or master, and Frank Bell the clerk; and that the insurance company mentioned in the draft was engaged in the business of insuring boats, and Wm. Prather, the endorser of the draft, was the secretary of said company. This was all the evidence, except the protest of the bill for non-payment, and the interest law of Louisiana."

"The court charged the jury, upon this evidence, that if they believed it, the acceptance not being denied by a sworn plea, the plaintiffs were entitled to a verdict.

"To this charge the defendant excepted, and asked the court to give the following charges:—

"1. That the draft did not support the complaint, and varied from that described therein.

"2. That in order to bind the defendant, it was necessary to show that the draft was accepted in his name, or by some name used by him, adopted for that purpose by B. W. Bell; and that the draft, accepted 'B. W. Bell, capt.', did not bind May, nor follow the complaint."

The court refused these charges, and to each refusal the defendant excepted; and he now assigns for error the overruling of his demurrer to the declaration, the charge given, and the refusal to charge as requested.

K. B. SEWALL and J. C. BOLLING, for appellant:

1. The demurrer to the declaration ought to have been sustained, because neither count showed a legal liability on the part of the defendant. The first count shows no authority in Bell to accept a bill of exchange for defendant: the aver

May v. Kelly & Frazier.

ment that he accepted "for the steamboat and owners", is no averment of his authority so to accept. The second count is defective for the same reason; and the third, though more specific, is equally defective. It was not sufficient to aver that Bell was the agent of May, since he may have been his agent, and yet had no authority to accept a bill for him. The fact of agency does not, ex vi termini, import authority to accept a bill of exchange.-Childress v. Miller, 4 Ala. 447; Brooks & Wilson v. Harris, 12 ib. 555.

2. The bill offered in evidence is variant from that described in the first count, because it does not purport to be accepted by "B. W. Bell, captain, for steamboat and owners"; and from that described in the second count, because it does not purport to be the acceptance of the defendant by Bell.

3. The bill offered in evidence, with the other proof in the cause, shows no liability on the part of May to pay it. To make the principal liable on a written contract made by his agent, it must appear to be executed in the name of the principal.-McTyer v. Steele, 26 Ala. 492; 10 Wend. 271; 8 Mees. & W. 834; Story on Agency, § 207. Exceptions to this general rule are, contracts signed by the master of a vessel in his own name, in the usual course of his employment, such as bills of lading, contracts for repairs, &c.; but the scope of his employment does not embrace the acceptance of bills of exchange, even for necessaries, so as to bind the owners.-Abbott on Shipping, 172; Ware's Rep. 263; 10 Metc. 380; 3 Story's R. 475; 10 B. & C. 135. The master of a ship, merely as such, has no authority to insure the ship; nor is the ship's husband, even when a part owner, authorized to insure for the other owners, without directions to that effect. 3 Phil. Ev. (3d ed.), p. 534, §§ 1854, 1855; 5 Burr. 2227–30; 2 Stark. 345; 8 Wend. 144; 7 B. Mon. 595; 35 Maine R. 542; 1 Metc. 16; 5 ib. 192.

MANNING & WALKER, contra, made these points :—

1. If either of the counts was good, the demurrer was properly overruled.-Kent v. Long, 8 Ala. 25; Firemen's Insurance Co. v. Cochran & Co., at the present term. And if the proof sustained either count, though in itself imperfect, the plaintiffs were entitled to a verdict.-3 Port. 45.