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This debt was a legal lien on the slave.
Robert Alexander, jun., could only transfer his right to the sheriff of Fairfax. The goods of the testator cannot be taken in execution for the debt of the executor. Farr v. Newman, 4 T. R. 625. Chapman could therefore only purchase the right of Robert Alexander, jun., in the slave.
The parol partition was void for the infancy of one of the parties. There was no executor qualified to assent to the legacy. By the law of Virginia an executor cannot act until he has given bond. Fenwick V. Sears, 1 Cranch, 259; Ramsay v. Dixon, 3 Cranch, 319.
It is very doubtful whether · five years' possession of a slave in Virginia is itself a good title for a plaintiff. It may protect the possession of a defendant; and that is the only effect of the statute.
Robert Alexander the younger did not hold the slave as executor of his father's will, but under the legacy.
It is immaterial whether Chapman did or did not know that the slave belonged to the estate of the testator. Five years' possession by Chapman was a good title against all the world.
In England twenty years' possession is a good bar in ejectment, and it is also a good positive title in itself, upon which an ejectment may be maintained.
MARSHALL, Ch. J. Can an executor distribute the estate before he has qualified and obtained letters testamentary?
LIVINGSTON, J. In England, an executor, before probate, can do everything but declare.
WASHINGTON, J., mentioned the case of Burnley v. Lambert, 1 Wash. 308, in which it was decided by the Court of Appeals of Virginia that " after the assent of the executor, the legal property is completely vested in the legatee, and cannot be devested by the creditors."
MARSHALL, Ch. J., delivered the opinion of the court to the following effect:
This court is of opinion that the possession of Chapman was a bar to the seizure of the slave by the marshal under the execution stated in this case. The only objection of any weight was, that there was no administration upon the estate of Robert Alexander, sen., and consequently, that the possession of Chapman was not an adverse possession.
But there was an executor competent to assent, and who did assent, to the legacy, and to the partition between the legatees, and who could not afterwards refuse to execute the will. Judgment affirmed.
BRYAN v. WEEMS.
SUPREME COURT OF ALABAMA, 1856.
(Reported 29 Ala. 423.)
APPEAL from the chancery court of Dallas.
The case made by the record may be thus stated : In December, 1831, Simmons Harrison, of the county of Jones in North Carolina, there executed a deed of gift, conveying certain slaves to one William H. Green, his heirs, executors, and administrators, in trust for the sole and separate use, benefit, and behoof of Mrs. Mary R. Bush, who was the daughter of said Harrison and the wife of Nathan B. Bush, during her life; and after her death, for the use, benefit, and behoof of her children by the said Nathan B. Bush, and their heirs forever. Soon after the execution of this deed, Bush and his wife removed to this State, and brought with them the slaves conveyed by the deed. Mrs. Bush died in 1837, leaving three children, Holland, Mary, and Penelope. The slaves remained in the possession of said Nathan B. Bush until his death which happened in 1844, at which time he had acquired several others by his industry and economy, and by the services of the slaves conveyed by the deed. By his last will and testament, which was duly admitted to probate, and of which one Alexander Sledge was the executor, said Bush bequeathed all the slaves then in his possession, including those conveyed by the deed, with the increase of the females, to his three daughters, but not in equal portions — the bequest to Penelope being larger than the others. The executor proved the will, took possession of all the property, proceeded to a settlement of the estate, and delivered the slaves to the respective legatees. After the death of said Bush, his daughter Holland married Frederic B. Bryan; Mary married Thomas J. McQueen; and Penelope, the youngest, married Samuel W. Weems. In August, 1850, Mrs. Weems died, having bequeathed all her property to her said husband, who afterwards proved her will, and took possession of all her slaves and other property.
In December, 1850, Mr. and Mrs. Bryan, with Mary Bush, who was then unmarried, filed their bill against said Green, Weems and Sledge; alleging their ignorance of the deed from Simmons Harrison until a short time previous to the filing of the bill; and asking that the said Sledge, as executor of Bush, might be made to account for the hire and services of the slaves during the life of his testator, and that the slaves might be divided between Mrs. Bryan and Mrs. McQueen.
The defendant Weems answered the bill, demurring for want of equity, and setting up the statute of limitations in defense of the suit. The answer also contains other matter, which is not deemed material. On final hearing, the chancellor held the statute of limitations a bar
to the relief sought, and therefore dismissed the bill; and his decree is now assigned as error.
Wm. M. Byrd, for the appellants. A. R. Manning, contra. STONE, J. We are fully satisfied with the views of the chancellor, and the result which he attains on all the points necessary to a decision of this case.
1. However the rule might be, if the trustee in this case were appointed by will (Hill on Trustees, 239), his estate and interest did not terminate with the life of Mrs. Bush. The deed of Simmons Harrison conveyed the property to the trustee, “ his heirs, executors, and administrators,” ...“ in trust and for the following uses, interests, and purposes ; viz., in trust and for the separate and exclusive use and benefit of the said Mary R. Bush during her natural life, and in no wise or manner to be subject or liable to or for the contracts or debts of the said husband, Nathan B. Bush ; and after her death, for the use, benefit and behoof of the children of the said Mary R. Bush by her present husband, the said Nathan B. Bush, and their heirs forever.” There are no words in this deed, indicating an intention that the estate in fee, which the deed creates in the trustee, shall be cut down into a less estate. The estate of the trustee continued after the death of both Mrs. and Mr. Bush. Wykham v. Wykham, 18 Vesey, 395; Coleman v. Tindall, Y. & J. 605 ; Jones v. Strong, 6 Ired. 367; Murritt v. Wendley, 3 Dev. 399 ; Martin v. Prage, 4 B. Monroe, 524; Fry v. Smith, 2 Dana, 38.
Our own decisions are not in conflict with this. In Smith v. Ruddle, 15 Ala. 28, the deed directed that at the death of the said Elizabeth H., the property, both real and personal, was to go to and be equally divided between the children. Elizabeth H. was dead; and of course the estate of the trustee was an end.
In Comby v. McMichael, 19 Ala. 747, the deed directed the trustee to “ convey the property to such of the issue ” of the cestui que trust, as should be living at her death. Mrs. McMichael was dead; and Ch. J. Dargan held, that the legal title of the trustee had determined, because the deed clearly contemplated that result.
Couthway v. Berghaus, 25 Ala. 393-406, simply decides that a tender in that case to the cestui que trust was sufficient. The trustee lived out of the State, and was a mere naked trustee without interest. The cestui que trust had himself made the purchase of the property, taking the title in the name of his sister; while he, the beneficiary, was in possession of the property, receiving the rents and profits. The court rightly held, that the money was due to Berghaus, and that the tender to him was sufficient.
2. While Mr. Bush held the possession of the slaves, he must be regarded as holding in subordination to the title of the trustee. His declarations to Mr. Green, and to Mr. Whitfield, shortly before his death, would establish this proposition, if it needed confirmation. A short time before the death of Mr. Bush, he expressed to the trustee an incli
nation and wish to make a will, and to make more ample provision for Penelope, who afterwards married Mr. Weems ; speaking of her as his “ poor afflicted daughter.” The testimony of Mr. Green, the trustee, who was examined as a witness, satisfies us that he, Green, knew of the making of a will by Bush, and its “ general character," before such will was admitted to probate. This was, at least, enough to put him on inquiry ; and is equivalent to notice. Smith v. Zurcher, 9 Ala. 208, and authorities cited. The bill, after stating that Mr. Bush executed his will and died in June, 1844, proceeds as follows : “ Whereupon Alexander Sledge, the executor named in said will, caused the same to be duly admitted to probate in the Orphans' Court of said county ; obtained letters testamentary upon said estate, from the same court; undertook the execution of said will, and possessed himself as such executor as aforesaid of all the slaves and other personal property mentioned therein.” The will mentions all the slaves in controversy, except some children born since the probate, of females bequeathed by the will ; a part
tee. The answer admits these averments, but states that the executor possessed himself of the property before the will was probated. These several facts constituted the executor an adverse holder, from and after the probate of the will, and possession of the property under it by bim. From that time the statute commenced running against Green, the trustee. Findley v. Patterson, 2 B. Monroe, 76; Den, ex dem., v. Shanklin, 4 Dev. & Bat. Law, 289.
3. Between the time of the probate of the will of Mr. Bush, and the commencement of this suit, more than six years elapsed. The trustee was then barred of his action of detinue. The rule is certainly well settled, that if a trustee delay the assertion of his rights until the statute perfects a bar against him, the cestui que trust will also be barred. Colburn v. Broughton, 9 Ala. 351-363; Hovenden v. Lord Annesley, 2 Sch. & Lef. 628-629; Angell on Limitation, 514, § 6; Bond v. Hopkins, 1 Sch. & Lef. 429; Freeman v. Perry, 2 Dev. Eq. 243 ; Couch v. Couch, 9 B. Monroe, 160; Falls v. Torrence. 4 Hawks' Law & Eq. 412.
4. It will be seen that we have assimilated the complainant's right to relief in this case to the trustee's right to maintain detinue. If, at the time the bill in this case was filed, Green, the trustee, had instituted his action of detinue or trover for the slaves, against Sledge, the executor, the six years statute, if pleaded, would have barred either action, not only as to the slaves bequeathed by the will, but also as to the offspring of the females, born after the adverse holding. Morris v. Perregay, 7 Gratt. 373; White v. Martin, 1 Porter, 215.
When defendant's right to property is established by a successful interposition of the plea of the statute of limitations, it relates back to the time of the first taking, and carries with it all the intermediate profits, and the increase of the females wbile in the adverse possession of such defendant, unless, as to such increase, some act be done before the bar against recovery of the mother is perfected, which prevents the operation of this rule. Partus sequitur ventrem. To hold otherwise, would lead to strange results in the case of female slaves. An adverse holding of six years would vest the title in the holder. During the time she was adversely held, she may, at intervals, have given birth to children; she and the children all the time remaining together, out of the possession of the claimant. She may have given birth to an infant within a very short time before the completion of the six years. According to the argument, all claim to the mother would be forfeited, while to bar the right to recover her child would require another period of near sis years.
Another illustration may serve to present this argument in a stronger light. Suppose the property adversely held consist of domestic animals, who multiply at an early age, and rapidly. Before the six years expire, the females, in all probability, will have increased abundantly; and perhaps at no point of coming time, will there be a female that has reached
not follow the mother as an incident, but each successive scion must itself be adversely held for the term of six years before the statute runs, unless, before its birth, the parent stock had existed and been adversely held for a like period, the entire interest of the former owner would not probably be extinguished in any conceivable number of years. This point was not raised in argument; but we have felt it our duty to notice it, as the court is not unanimous.
The claim for hire, and for profits of the labor of the slaves, while in the possession of Mr. Bush, is barred both by lapse of time, and by the statute of non-claim.
Under these principles, the right of complainants is barred. Whether Mr. Bush, or those claiming under him, can set up fraud in the original deed to Mr. Harrison, and from him to Mr. Green in trust, we need not inquire. See Walton v. Bonham, 24 Ala. 513; Twine's Case, 3 Rep. 83; Roberts on Conveyances, 10–11.
The decree of the chancellor is affirmed.
CHAPIN v. FREELAND.
[Reported 142 Mass. 383.] REPLEVIN of two counters. Writ dated November 14, 1881. Trial in the Superior Court, without a jury, before Blodgett, J., who allowed a bill of exceptions, in substance as follows:
There was evidence tending to show, and the judge found, that in 1867, one Daniel Warner built a building upon his land in Oxford, and fitted up the same with shelving and counters, and designed the