
    Hudson v. Hudson’s Administrator and Others.
    Decided, April 2d, 1819.
    1. Power of Appointment —Statute of Limitations — Case at Bar,— If a widow holding, by virtue of her husband’s Will, certain Slaves for life, with power to dispose of them afterwards, among his children, as she should think proper, bequeath them to trustees for the benefit of one only of those children: such child must be considered as holding the slaves under her Will, adversely, in relation to the other children, and therefore may be protected by the act of Limitations from a claim in their behalf.
    2. Pleading and Practice — Statute of Limitations— Special Plea. — in a case where it is necessary to plead the act of Limitations, it ought, in order to form a bar, to be specially pleaded, or at least insisted on; that is, the term prescribed by the Statute should be particularly (if not formally) pleaded, or relied on, to let in the plaintiff to shew, in his replication, that, within that term, an original had been sued out, if the fact were so, and thus to avoid the bar.
    3. Power of Appointment-Exercise of — Case at Bar.— Where a testator empowers his widow to dispose of certain slaves “among his children,’* (in general terms,) “as she shall think proper,” she can not give them all to one, nor wholly exclude any; nor can she give any of,,them to his grand children: and if she make an appointment violating this principle, it will be avoided in Equity, and the property distributed among all the children and their representatives.
    4. Slaves — Adverse Possession:) — Evidence of. — The circumstance that slaves are beijueathed to trustees, lor the use of a person, that he may enjoy the profits of their labour during his life, &c., is not, in itself, sufiicie.nt evidence that, by virtue of such beauest. he had actual possession thereof, adversely to the claim of other persons.
    5. Same — Same-Infancy.--A possession of slaves commencing during the infancy of a plaintiff, can not operate a title in favour of a defendant, until it has continued five years after such infancy has ceased.
    6. Statute of Limitations-Operation —Disabilities.— When the act of Limitations once begins to run, it runs over all mesne acts, such as coverture, infancy, &c.
    See Fitzhugh v. Anderson, 2 H. & M. 289.
    Christopher Hudson of the County of Amelia, by his Will, dated the 4th of November 1788, and admitted *to record the 26th of February 1789, bequeathed to his wife Elizabeth Hudson certain slaves during her life, and directed that the same should be by her disposed of, among his children, after her death, as she. should think proper. The Will contained sundry devises and bequests of lands, slaves and other property, in various proportions, among to his four sons, Eewellin Hudson, William Chamberlayne Hudson, Charles Hudson and Francis Eppes Hudson; his daughters Elizabeth Eittle-page Price, and Mary Bass; and his Wife.
    Elizabeth Hudson, the widow, by her Will dated the 28th of October 1794, and admitted to record in December following, gave nearly all the slaves, in which she had a life estate as aforesaid, together with their future increase, to William B. Giles and John Royall, or the survivor of them, in trust for the use of her son Francis Eppes Hudson; that they should permit him during his natural life to enjoy the profits of the said slaves; and, after his death, that the said slaves with all their increase should be equally divided among his children lawfully begotten; or, if he should have no children, among the surviving children of her other sons and daughters above mentioned.
    Francis Eppes Hudson qualified, in August 1795, as administrator with the Will annexed, in which the testatrix also directed that he should pay all her just debts, together with certain legacies to her daughter Mary Bass and her son Charles.
    On the 20th day of June 1808, Hannah Hudson and others, children and representatives of William Chamberlayne Hudson (who died on or about the 29th of July, 1800,) sued oui a subpoena from the Superior Court of Chancery for the Richmond district, against Francis E. Hudson administrator of Elizabeth Hudson deceased, William B. Giles, and William Royall executor of John Roj'all the other trustee. In March 1809, they filed their Bill; and af-terwards an amended bill, making the other children of Christopher Hudson parties, to set aside the appointment made by the Will of Elizabeth Hudson, *in relation to the slaves, as unjust and partial, and not authorized by the proper construction of the Will of Christopher Hudson; that an equal division of the said slaves and their increase might be made among all the children of the said Christopher and their representatives; to compel the defendant Frahcis E. Hudson to account •for and pay the value of one of the slaves, sold by him and converted tc his use since the suit was brought; and to obtain an Injunction to restrain him, pendente lite, from removing any of them out of th'e State: which Injunction was granted by the Chancellor.
    Francis B. ‘ Hudson by his answer insisted, for various reasons, that the appointment made in his favour was reasonable and just, under all the circumstances of the case; that it was the intention of the testator Christopher Hudson, expressed in his Will, that the power given his Wife should be exercised entirely according to her own discretion, provided she gave the slaves to any one or more of his children; that the amount of debts and legacies, which the respondent was to pay, under the Will of Elizabeth Hudson, was so large as to leave him, with the negroes bequeathed to him, but a small part of his father’s estate ; at any rate not more than his brother William, C. Hudson, father of the plaintiffs, had received. He admitted" that, since the institution of the suit, he sold for a fair price the negro boy mentioned in the Bill; but alledged that Elizabeth Hudson died intestate as to part of the negroes ; viz., a woman , named Dolsha and child; that, in consequence thereof, the said sla ves were sold, and the money arising from such sale was equally divided between William C. Hudson, and others; concluding with remarking, “that the said William C. Hudson lived many years after the death of his mother, and never claimed the property now sued for by the complainants, becáuse he was well satisfied that he had no right to make such a claim; and the respondent is advised that it is not competent for the plaintiffs at this time.to claim the same in right of William C. Hudson.”
    *The defendant Lewellin Hudson answered; saying, that he had received no part of the slaves in controversy, except an equal part of. the money which Dolsha sold for. No answer being put in by the other defendants, decrees nisi were duly served upon them. A receipt from William C. Hudson for his share of the price of Dolsha and her child, was made an exhibit.
    Chancellor Taylor dismissed the Bills with costs; from which Decree the plaintiffs appealed. ■
    
      
      Statute of Limitations — Special Plea of. — See mono-graphic note on “Limitation of Actions’* appended to Herrington v. Harkins. 1 Rob. 591. The principal case is cited on the subject in Woodyard v. Polsley, 14 W. Va. 220. See principal case cited in Tazewell v. Whittle, 13 Gratt. 345.
    
    
      
      Power of Appointment — Exercise of,--A power of appointment, where a trust and confidence is reposed in the donee, is personal to the donee, and cannot be delegated; nor will a power to appoint to children authorize an appointment to grandchildren or other persons, unless a contrary intention appears from the instrument creating the power, for cujas est dare ejus est disponere. Hood v. Haden, 82 Va. 595. 596, citing principal case as authority.
      An act done in execution of a power of appointment must conform thereto. A will made in execution of a power to appoint by will wMcli appoints the whole subject to one person entitled under the will omitting others equally entitled, Is void as an act ot appointment. Thrasher v. Ballard, 35 W. Va. 524, 526, 14 S. E. Rep. 232, 233, citing principal case.
    
    
      
      Adverse Possession — Trustees.—See principal case cited on this subject in Parsons v. McCracken, 9 Leigh 508. 510.
      See generally, monographic note on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.
    
   The following was the opinion of this Court, which

JUDGE ROANE

delivered.

The Court is of opinion, that, as the will of Christopher Hudson, was consummated, in favour of the appelle.e F. E. Hudson, by that of Eliza Hudson his widow and trustee, (though improperly consummated,) the said F. E. Hudson is to be considered as holding the negroes thereby appointed, adversely, in relation to the appellants, as much so, as if the Will of the original testator had been perfected by himself; and that, quoad the appellants, the appellee F. E- Hudson is not so to be considered a trustee, as to bar him from relying on the act of limitations. There was no special trust or confidence reposed in him which should have that effect; and he stands merely in the common situation of a man who has obtained property to which he is not entitled. Denying to him, therefore, the benefit of the Act of Limitations, would go far to repeal the operation of that act altogether. The Court is also of opinion, that, although five 3rears had not elapsed between the death of William C. Hudson, the father of the appellants, (some of whom are infants,) and the time when the appellee F. E. Hudson administered on the estate of his mother, and probably got possession of the negroes in controversy, that circumstance would not prevent .the statute from affording a bar; the principle being that, when the act once begins to run, it runs over all mesne acts, such as coverture, infancy, &c., and that it would defeat the statute, if, after the lapse of four years, the death of the plaintiff and infancy of his issue were to set all at large again. (1 Stra. 566, Gray v. Mendez.) *The Court is also of opinion, that the possession of F. E. Hudson in this case was in his character of .appointee of his mother, and not in that of her administrator ; for it was not her property, nor could he receive it as such. But the opinion of the Court is that, where it is necessary to plead the act of Limitations, it ought, in order to form a bar, to be specially pleaded, or at least insisted on. — -A general averment, such as that in the answer of F. E. Hudson, that William C. Hudson lived many years after the death of his mother, and did not claim the property, is not sufficient. It doe.s not assert, or necessarily import this delay to have been for five years; and the expression may be as well satisfied by four years and eleven months as by five years. It is important that the term prescribed by the Statute should be particularly (tho’ not formally) pleaded,, or relied on, to let in the plaintiff to shew, in his replication, that, within that term, an original had been sued out, if the fact were so, (4 Bac. 484,) and thus to avoid the bar: but such replication might be deemed immaterial, if net impertinent, in a case in which the delay to sue for the full term prescribed by the statute had not been put in issue by the defendant Altho’ the statute might have been pleaded in this case, therefore, the opinion of the Court is, that it has not been so pleaded or relied on ; and we are driven ■to decide the cause upon it’s merits.

On those merits, the Court holds the principle to be, that, where a power is given to a trustee to distribute an interest among all the children, he cannot give it all to one, nor wholly exclude any, nor can he appoint any part of the subject to the grandchildren, of the testator. An appointment violating this principle, (as the present does in all it’s members,) will be avoided in Equity, and the property distributed among the children and their representatives. All these points were decided by this Court in the case of Owen v. Morris (2 Call 520.) If there was nothing else in this case, therefore, the Court would give it this destination, as to the negroes and their profits; debiting the appellee, at the same time, with the full value of one of the negroes, admitted to have been '*sold by him, and converted to his own use. It is, howevei, probable, that, altho’ the appellee has no other title to the slaves in controversy, such title may have accrued in his favour by an actual adverse possession of them for more than five years. That such possession will give a title to a defendant, (as well as a plaintiff,) and that without pleading the Act of Limitations, has been often decided in this Court. We refer particularly to the cases of Jordan v. Murray, 3 Call 85, and Garth’s executor v. Barksdale, 5 Munf. 101. Altho’ it is probable, from this record, that this possession did actually exist in the appellee in the case before us; and that a jury might deem itself justified to infer it, for the facts admitted and proved in the case, and other testimony which might be offered on the trial of an issue; there is not enough conceded, on this record, to enable the Court to infer that fact, with certainty. The Court must therefore avail itself of an issue to ascertain that fact; and, more particularly, to find whether or not an actual possession of the negroes in question commenced with the appellee during the life time of Wm. C. Hudson, and continued five years or longer. We would restrict the commencement of such possession to the life time of the appellee’s ancestor; for it is not supposed that a possession commencing during the infancy of a plaintiff, should operate a title, in favour of a defendant, until such possession had continued five years after his infancy had ceased.

The decree is to be reversed with Costs; the cause remanded, and an issue directed, for the purpose aforesaid; on the return of which, the decree is to' be rendered for the appellants, or appellee, under the principles of this decree, according as the finding of the issue may be in favour of one or the other of the parties. ,  