
    CASE 28 — IN EQUITY
    JANUARY 5, 1859.
    Maddox, &c., vs. Allen.
    APPEAL FROM SHELBY CIRCUIT COURT.
    1. Under the law, as it stood before the adoption of the Revised Statutes, the general residuary legatee was entitled, in that character, to whatever personal estate might fall into the residue after the making of the will, by lapse, invalid disposition, or other accident; but it devolved upon such legatee to prove the facts necessary to show that such lapse or failure has occurred in order to establish his right as residuary legatee; and until this is done, in the case of the hires of slaves, the administrator with the will annexed would have the right to control and manage the slaves and hires.
    2. If such slaves are, however, held adversely to the administrator, for five years, he is barred of his right to recover possession of them, by action, notwithstanding his attitude be that of a trustee in reference to the hires of the negroes, which were appropriated, by the will, to the support of infirm or disabled slaves. He could have maintained his action at law in proper time, and the statute of limitations can always be relied on where there is a legal remedy; it is only in cases of trusts, purely equitable, that the statute is not allowed to operate.
    By the will of Charles Masterson, admitted to record in 1836, such of his slaves as should be under the age of twenty-two years at the death of his wife, (who was devisee for life of his whole estate,) were directed to be hired out by his executor until they should attain to that age; the hires to be applied to the support of such of the slaves as might be infirm or disabled, except the last year’s hire, which was to go to the slaves hired out. Other slaves were to be free at the death of his wife. After some specific legacies, the testator devised one half of the remainder of his estate to be disposed of by his wife at her death as she might choose; the other half, upon her death, to go to his brothers and sisters, who conveyed their interests to his widow. The widow qualified as administratrix. She, by her will, recorded in March, 1843, devised to her niece, Jane Aynes, the negro boy James, (whose hire is in controversy,) until he should arrive to the age of twenty-two years, when he is to be free; and Mrs. Aynes, by her will, recorded in August, 1855, devised said negro, with the same condition, to her daughter Eliza Allen, wife of Stephen Allen, the boy to have his last year’s hire. Stephen Allen hired the negro to Owen and Martin for the year 1857, and having brought suit upon the note therefor, the appellants, Maddox, &c., caused themselves to be made parties and set up claim to the hire; Allen, by a separate instrument, of the date of the note, having agreed with Owen and Martin that if Maddox, &c., should establish their claim to be superior to his, the hire should be paid to them. The claim set up by Maddox, &c., arises under a contract dated 11th October, 1856, by which the administrator de bonis non with the will annexed of Charles Masterson, deceased, hired to them the slave in question until the 25th of December, 1857. The possession of the slave since the death of Mrs. Masterson has been held by Allen and those under whom he claims.
    
      Judgment having been rendered in favor of Allen, this appeal is prosecuted by Maddox, &c.
    Brown and Whitase¶. for appellants—
    1. It was erroneous to adjudge costs in favor of Allen against Owen and Martin.
    2. The facts in the case do not authorize the conclusion that the holding by Allen and those under whom he claims was adverse to the administrator of Masterson. The possession of his widow, who was his administratrix, was not adverse; and her successor in the office of administrator was, upon her death, entitled to control and manage the minor slaves and their hires. Adverse possession cannot, moreover, be relied on, because it would tend to impair the right of freedom given to the slaves, and to defeat the charity to the infirm and disabled negroes.
    Authorities cited: 3 J. J. Mar., 278; lb., 368; 7 lb., 200.
    T. B. and J. B. Cochran for appellee—
    As it does not appear that there were any infirm or disabled slaves, the devise of the hires of the minor slaves to that object lapsed. This income became Mrs. Masterson’s; and those holding and claiming under her are entitled to it. In any event, the claim of the administrator of Charles Masterson is barred by the statute of limitations.
   CHIEF JUSTICE SIMPSON

delivered the opinion op the court:

By the will of Charles Masterson, the hire of his young negroes was appropriated to such of the testator’s negroes as might be infirm or otherwise disabled. It did not therefore pass under the residuary devise in the will, which only disposed of that part of the testator’s estate which was not otherwise disposed of or appropriated. But as the will took effect before the adoption of the Revised Statutes, its construction and effect depend on the pre-existing law. The rule under that law was, that the general residuary legatee was entitled in that character to whatever personal estate might fall into the residue, after the making of the will, by lapse, invalid disposition, or other accident. If, however, the hires are claimed under the residuary devise, on the ground that the disposition which the testator made of them has failed, for the want of a person or persons to receive the benefit of the appropriation, it devolves on those who assert the claim to prove the facts which are necessary to show that such a failure has occurred. Their right under the will depends upon the lapse or failure of the devise which the testator made of these hires, and consequently to establish such a right, the claimant must prove that the devise has turned out to be ineffectual and inoperative.

As this fact was not established by the proof, the right of the administrator with the will annexed to control and manage the young negroes is clear and unquestionable. It is his duty to collect the hires and hold them for the purposes indicated by the will.

But as his right to the possession and control of the slave Jim accrued upon the death of the widow, and the possession has ever since that time been held by Allen, and those under whom he claims, being a period of more than five years before the commencement of this action, the question arises whether his right is not barred by the statute of limitations.

It is contended that the statute does not apply because there is no proof that the possession was adverse. It is obvious, however, that the possession was held under the will of the widow, and not under the administrator with the will annexed of Charles Masterson, deceased. It is also obvious that the devisee, Jane Aynes, claimed a right to hold the boy Jim until he was twenty-one years of age, and disposed of him by her will until that time, as if he were her own property. The holding must therefore be deemed to have been adverse, and the statute bars the right of the administrator, unless there be some other reason which forbids its application.

It is argued that the attitude of the property, the character of the charity created by the testator, and the interest of the boy himself, alike forbid the application of the statute of limitations.

It is no doubt true that a trust exists under the will, and that the boy Jim constitutes part of the trust property, but that does not prevent the operation of the statute against the claim of the trustee. Allen and those under whom he claims did not hold the property subject to the trust, but held it adversely. The trustee could have maintained an action at law for the-property, and recovered it, if he had brought his action in proper time. The doctrine is -well settled, that the statute can always be relied upon where there is a legal remedy. It is. only in cases of trusts which are purely equitable, that the statute is not allowed to operate. But here, as between the claimant, and the adverse holder, there was no trust whatever, of any description. No injury can result to the boy from the failure of the administrator to assert his right in due time. He has by his neglect rendered himself responsible to the old and infirm negroes for the hire, if there be any to claim it. But no liability can be imposed on the boy Jim in consequence of the failure of the administrator tó discharge his duty.

Owens and Martin should not have been subjected to the payment of any costs. The costs of the controversy should have been adjudged against the Maddoxes. But as the last named persons are the only appellants, and the error is not to their prejudice, the judgment cannot be reversed on this account at their instance.

Wherefore, the judgment is affirmed.  