
    *John Royall v. Richard Eppes, Administrator of Lucy Royall.
    
    Argued March 27th, 28th and 29th, 1811.
    i. Wills — Executory Devise — What Constitutes — Case at Bar. — In a will, dated in 1783, and recorded in 1784, the following- clause occurred: “It is my will and desire, tliat in case my son John should die without heir of his hody lawfully begotten, that then, and in that case, [give to my wife Lucy, and to her heirs for ever, all the negroes which I had by her.” This was determined to be a good exec-utory devise in favour of Lucy; not on the ground that the word "then” was used; or the word "heir,” in the singular number; but because the bequest was of the negroes which the testator had by her: (saying nothing of their issue;) and this was considered as eyincing that he did not intend a return of them, or their posterity, to his wife, at any remote period of time.
    2. Same — Same—Same—Same.— And though Lucy died in the lifetime of John, who was her only son and heir, her contingent interest did not thereby accrue to him, hut to her administrator; so that the latter became entitled to recover the slaves upon John’s dying without issue living at the time of his death.
    3. Administrator — Appointment and Qualification-Effect. — It seems, that an administrator, appointed and qualified by a court of competent authority, is the lawful representative of the personal estate: (until his appointment be rescinded;) notwithstanding another had the better right to be the administrator.
    4. Case Agreed. — By a case agreed, the parties may rest the decision of the cause upon certain specified points of law, to the exclusion of all extraneous facts, or circumstances.
    5. Same — Assumptions by Court. — If the plaintiff and defendant claim under the same executory bequest; and a case be agreed, submitting the right, to be adjudged, according to the legal construc- ■ tion of the will, without saying any thing about the executor’s assent to the legacy, the court will assume that, as a fact, between the present parties.
    
      6. Executor — Detinue against — Personalty in Which Testator fiad Interest for Life. — An executor, or administrator, holding slaves in which his testator or intestate had only an estate for life, terminable upon his dying without issue living at the time of his death, (which event actually took place,) may be charged, in detinue, personally, and not as executor, or administrator.
    7. Detinue — Declaration—Judgment.—It seems, that, if a declaration in detinue demand a negro woman, by name, and her three children, without mentioning their names, and a case be agreed, submitting that, if the law be for the plaintiff upon certain other points, judgment may be entered in his favour, “for the slaves in the declaration mentioned;” the court may insert the names of the negro children in the judgment.
    Ia the last will and testament of Joseph Royall, dated April 13, 1783, and admitted to record in September, 1784, the testator bequeathed to Lucy his wife, one half of all his negroes, for and during the term of her natural life. He also gave her a third part of all his stock and other personal estate, and directed that she should keep possession of his houses during her widowhood, and also have the use of one third of his land, adjoining to the houses, after his son John should come of age.
    The following clause next occurred: ‘‘It is my will and desire, that, in case my son John should die without heir of his body lawfully begotten, that then, and in that case, I give to my wife Lucy, and to her heirs for ever, all the negroes which I had by her; and the remainder part of my estate, after the deatJa of my wife, *1 give to be equally divided between my two brothers, Littlebury and John, to them and their heirs for ever.”
    There was no express devise or bequest to John Royall, the testator’s son. The will concluded with the appointment of executors.
    After the death of the testator, Lucy his. widow entered into, and was possessed of, the real and personal estate devised to her in possession. She departed this life, intestate, in the year 179S, and during the life of the said John Royall, who, immediately after her death, paid all her debts and funeral expenses. No administration of her estate was taken until December, 1803,, when Richard Eppes qualified as her administrator. John Royall departed this life, intestate, in the year 1802, possessed of all the slaves of which his father and his mother had died possessed, (except those whom he had sold,) and without leaving any lawfully begotten child.
    An action of detinue was then brought, in the Petersburg district court, by the administrator of Lucy Royall, against John Royall, who was one of the lawfully coheirs and distributees of the said John Royall, deceased, and also administrator, (but not charged as such in the declaration,) to recover the slaves contingently devised, as above mentioned, to the said Lucy and her heirs.
    The parties agreed a case, setting forth the will in hsec verba; the death of the testator and qualification of his executors, (one of whom, William Royall, is still living,) and the other facts aforesaid. It was also agreed that the defendant was the legal representative of John Rojall, but not the legal representative or distributee of Lucy Royall; and that the slaves in question were part of those described in the will, as “the negroes the testator had by his wife.”
    The case concluded- with an agreement that judgment should be entered for the plaintiff for the slaves in the declaration mentioned, and one penny damages, if the court should be of opinion, first, that the limitation, to his wife, of the slaves which the testator had by her, on *the event of John’s dying without heir of his body was a legal and valid limitation; and, secondly, that (notwithstanding the death of the said Lucy in the lifetime of John, who was her only child and heir) the slaves, so limited to her on the death of John as aforesaid, became vested in the plaintiff as her administrator: but if the court; should think otherwise, on either of these two points, judgment should be entered for the defendant.
    The declaration demanded “the following negro slaves, to wit, Isbell and her three children, of the value of thirty pounds each;” without mentioning the names of the children.
    - The-district court, being of opinion that the law was for the plaintiff, entered judgment that he recover against the defendant “the slaves Isbell, Tabb, Eanny and Chenor, in the declaration mentioned, and one penny.damages, and the costs;” from which judgment the defendant appealed.
    Hay and Wickham, for the appellant.
    George K. Taylor and Call, for the ap-pellee.
    The first point made by the counsel for the appellant was, that the limitation to Lucy Royall was too remote, and therefore void; depending, not upon the event of John’s dying without issue at the time of his death, but upon an indefinite failure of his issue.
    In support of this position they took a general view of the authorities; relying chiefly on Beauclerk v. Dormer, 2 Atk. 308, (in which all the previous cases were examined and commented upon by Lord Hard - wicke,) and Bigge v. Bensley, 1 Bro. Ch. Rep. 187, which differs from the present case only in this, that no bequest is made, in the will now in question, to John_. In that case, too, as in this, the rémainder over, in case of the death of the *first taker without issue, was given to a person in esse at the time when the will was written ; which circumstance seemed to show tha* the testator could not have intended a failure of issue indefinitely, but only at the death of the first taker. Yet it was determined that the contingency was too remote, and the remainder over could not take effect, being to the remainder-man and his heirs. It is, indeed, settled that a devise for life to one in esse, to take place after a dying without issue, may be good; because in such case, the future limitation being only for life, it must necessarily take place during that life, or not at all; and therefore the failure of issue is confined to the compass of a life in being: but that case is not like this; for here the limitation is to Lucy Royall and her heirs.
    On the other side, it was contended, that the rule, by which a distinction is made between an indefinite failure of issue and a failure at the death of the first taker, is contrary to common sense; arising from a strained construction of wills, originally introduced in England, to carry into effect, but now operating constantly to defeat, the intention of testators. It is generally agreed that the will must have effect where it conflicts with no positive legal rules ; that where the courts decide against the plain meaning of the will, they universally express regret; and that, therefore, to get (“in favor of common sense”) around this difficulty, “the most trifling circumstance is sufficient.” Will it, therefore, be deemed unpardonable, if every effort be used, in this case, to give common sense a liberation from the fetters in which pend-antry and law jargon, two hundred years ago, bound her?
    The cases in England on this point are contradictory. In some of them, a limitation, after a dying without issue generally, is considered as identified with a limitation after a dying without issue at the time of the death of the *first taker,  In others a different doctrine is laid down; not admitting this construction ex vi termini; but intending an indefinite failure of issue, unless the contrary intention be inferred from other expressions in the will,  The general result from all these authorities is, that any expression which can indicate the testator’s intention to take the case out of the old rule is to be effectual for that purpose.
    But in this will there are not only trifling, but strong circumstances to show the intention.
    The words “then and in that case,” are equivalent to the words, “then after her decease,” in Pinbury v. Elkin, 1 P. Wms. 563, which is recognised as authority in 2 Fearne, 191, and 1 Call, 344, Dunn v. Bray. It is said that the case of Pinbury v. Elkin was overruled by 11 Bro. 188, Bigge v. Ben-sley. But surely the court of appeals of Virginia had a right to take the authority supported by common sense, in preference to later decisions which are opposed to it; unless a maxim be resorted to that our judges have no right to decide until permission be wafted over to them from the other side of the Atlantic I
    Again, the expression “without heir of his body” (in the singular number) is important: for although, with respect to devises of lands, the cases of Tilbury v. Barbut, 3 Atk. 583, and Hill v. Burrow, 3 Call, 342, are against us, there is no such decision in the case of bequests of personal property; and Forth v. Chapman, 1 P. Wms. 667, shows, that even where the realty and personalty are devised in the same clause, a different construction, as to each, will take place.
    In addition to all this, the terms of the will are, that if John (the son) should die without issue, the widow should have all the negroes the testator had by her; and the brothers Littlebury and John should have the remaining part of the estate after the death of the widow. Hence it appears conclusively, that the testator could not *have contemplated an indefinite failure of issue, but only a failure at the death of his son John; because the negroes he had by his wife were living at the time of making the will; and it might have been impossible to trace their pedigrees at the end of, perhaps, one hundred years thereafter, which might have elapsed before an indefinite failure of issue; and because the bequest to the brothers, after the “death of the widow,” being good, (as not too remote,) the bequest to the widow herself must be good also; taking effect prior in point of time to that of the brothers, 
    
    In reply to these arguments it was said, that the rule established in England, that where real estate is devised to A. and his heirs, and, if he die without issue, remainder over, it shall be considered an estate tail for the benefit of the issue, never was applicable to personal estate; with respect to which, originally, there could be no limitation over; it being the old maxim that a bequest of a chattel, for a day, was good for ever. This rigour was relaxed in Matthew Manning’s Case,  and by subsequent authorities, it is now settled that limitations over, in bequests of chattels, may take place; but with this restriction, (to prevent perpetuities,) that the event, upon which the absolute right of property is to be vested in the last taker, must happen within a life or lives in being.  It is settled in England, that “failure of issue” must be considered indefinite failure, unless there be some other words to tie down the failure within such period The position, that “dying without issue” (in general terms) means “dying without issue living at the time of the death,” is not supported by any authority. In Nichols v. Hooper,  the legacy was payable “within six months after the death of the survivor,” &c. In Target *v. Gaunt,  the words were, “for his life and no longer, and, after his decease, to such of his issue as he by his will should appoint; and in case he should die without issue, then,” &c.
    In Hughes v. Sayer,  the bequest was to two persons, and if either should die without children, then to the survivor. In Pinbury v. Elkin,  the testator gave his wife all his goods and chattels; provided, that if she shall die without issue by the said testator, then, after her decease, 801. should remain to his brother I. S.” In Forth v. Chapman, the devise was “to William and Walter, and if either of them should depart this life, and leave no issue of their respective bodies, then,” &c. The operative word there was leave, which was construed to confine the failure of issue to the time of their deaths, which was also the case in Atkinson v. Hutchinson, 3 P. Wms. 258. In Pleydell v. Pleydell, the ground of the decision was, that the former limitations being to sons, the dying without “issue” must mean “such issue,” i. e. “sons.”
    
    None of these cases are in opposition to Beauclerk v. Dormer,  and Bigge v. Bensley,  in the former of which all the authorities were reviewed by Eord Hard-wicke, and in the latter, by Éord Thurlow, and the doctrine then laid down has never been departed from in any subsequent decision.
    The act of 1776, docking entails, gave an opportunity to this court of introducing a new rule which might have been founded upon the spirit of that act; but this it failed to do, (declaring that the act had not the effect of altering the law in this respect,) and adopted all the English authorities. In Dunn v. Bray, the limitation was held to be good; the words being, “in case my son William should die, and leave no lawful issue, then,” &c. The dictum of Judge Pendleton, concerning the effect of the word “then,” was not the point decided. The word “then,” has never been considered as sufficient to vary the construction. It is, in such cases, merely a word of ^relation, not an adverb of time: but whether it be understood as one or the other, its effect is the same: for, in either case, it refers to the failure of issue, without ascertaining when.
    Neither does the word “heir” (in the singular number) make any difference. That word occurred in Hill v. Burrow,  Tate v. Tally,  and Eldridge v. Pisher yet, in every instance, was considered by this court as equivalent to the word “heirs;” since “heir” is nomen collecti-vum, comprehending not only immediate but future inheritors.
    In Higgenbotham v. Rucker,  the limitation was not too remote; the gift being “to the daughter of the plaintiff and the heirs of her body, and in case she died without issue, that is, children of her body, the said slaves to return to the grantor.” The meaning intended to be affixed to the word issue was there explained by thé grantor himself, and very properly confined to issue living at the time of the daughter’s death. But this case is not like that.
    The circumstance that a particular family of negroes are the subject of the bequest cannot vary the construction. If the devise had been of a negro man, the limitation over would have been good, since it must have taken effect in his life, or not at all. But the case is otherwise with a woman and children devised over upon an indefinite failure of issue.
    The counsel for the appellant farther contended, that, if the testator did not mean an indefinite failure of issue, but intended the limitation to take effect on the death of John in the lifetime of the widow, the limitation is void: not as being too remote, but because the contingency never happened; for she died in the lifetime of John. If it be contended that the limitation over after the death of John fixes the time of failure to that epoch, whether John should die in her lifetime or not; the manifest intention of the testator was otherwise; for the property was not *to go to her until the death of John, and there is another limitation over after her death. 
    
    In the next place they contended, that admitting the limitation to the widow was good, the slaves went to her son John, as her legal representative, who, according to •Cutchin v. Wilkinson, 1 Call, 6, was entitled to the administration of her estate; and to all her property real and personal, (including this contingent interest,) by virtue of the acts of descents and distributions, since she died in 1795. The defendant, therefore, is entitled, as legal representative of John Royall.
    In answer to this, it was said to be clear law, that, upon the death of Lucy Royall, her contingent interest in the slaves, which was a personal and not a real interest, belonged not to her heir, but to her executor •or administrator, 
    
    In reply, it was said that the administration was surreptitiously granted to Eppes, the present plaintiff; that the beneficial interest was in John Royall, who should have been the administrator of his mother, whose debts and funeral expenses .he paid; that the true meaning and intention of the case agreed, was to submit the question who had the substantial, beneficial interest? not as to the mere formal right: but if strict law was to be insisted upon, the plaintiff had no right to recover, it not being stated that the executors of Joseph Royall ever assented to the legacy, 
    
    To repel this objection, the counsel for the appellee '^observed, that in Hairston v. Hall, the point, whether •the assent of the executor was necessary, was expressly made in the case agreed; and there was no ground for inferring assent; but in this case there are strong circumstances in favor of such inference; it being agreed that John Royall the son held the property during his life, and that the •defendant (his administrator) is in possession : the court, then, will not permit him to raise the objection that the executors have not assented to the legacy. Besides, he has expressly waived it, by agreeing that judgment shall be entered for the plaintiff, in case the court shall determine two specified points in his favour. This was a relinquishment of all technical objections, not involved in the points stated, on which he agreed to rest his cause.
    On the other side, it was urged that matter of inference is not sufficient to prove the assent of the executor; for this is not a finding of the fact. Such facts as are necessary to decide the points submitted must be expressly found.  The case agreed is therefore imperfect; but a venire de novo is not necessary, the merits being against the plaintiff.
    But in answer to this argument, it was said that a case agreed, of the character of that now in question, is not like a special verdict. The plaintiff might have gone on ■to prove assent; if the defendant had not agreed to submit to the court’s opinion upon two points of law.
    Two other objections were taken by the appellant’s counsel; 1st. That the evidence stated in the case agreed, showing a possession by the defendant as administrator *of John Royall, did not support the declaration, which was against him in his own right: and, 2dly. That the declaration failing to mention the names of Isbell’s children, judgment could not be entered for them.
    The first of these objections was opposed, on the other side, by observing that John Royall had only an estate for life in the slaves. The defendant, therefore, is himself a wrongdoer, and personally responsible ; for he is not justified in holding as administrator. The second objection ought not to be regarded, because, according to the maxim “partus sequitur ventrem,” if the court shall decide that the plaintiff is entitled to the mother, his right to the children will be unquestionable.
    In reply to this, it was insisted that the court had no right to enter judgment, without something to warrant it. A child in its mother’s arms may be described as such, without specifying a name; but the rule is otherwise as to negroes that may be presumed to have names. If the plaintiff knew not their names, he might have brought a suit in chancery for a discovery.
    
      
       For sequel of principal case, see Royall v. Royall, 5 Munf. 83.
    
    
      
      
         Wills — Executory Devises. — See principal case cited in Griffith v. Thomson, 1 Leigh 335.
    
    
      
       Case Agreed. — The principal case is cited on this subject in Roach v. Gardner, 9 Gratt. 91: Stockton v. Copeland, 23 W. Va. 701.
    
    
      
       Executor — Detinue against. — When an executor takes possession of the property of a third person of which his testator died in possession, he is liable to an action of detinue at the suit of,the true owner, either in his individual character, or as executor, at the election of tne plaintiff. That he is liable in his individual character seems not only to be established by the case of Royall v. Eppes, 2 Munf. 479, but by ancient cases, and by the reason of the thing. Catlett v. Russell, 6 Leigh 364.
      See further monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578; monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       2 Fearne, 279, 1 T. R. 598, Lyde v. Lyde.
    
    
      
       Note. See 1 Wash. p. 102, Kennon v. M’Roberts and Wife.
    
    
      
       1 T. R. 597 ; 2 Fearne, 245.
    
    
      
       1 P. Wms. 199, Nichols v. Hooper; Id. 432, Target v. Gaunt; Id. 534. Hughes v. Sayer; Id. 568, Pinbury v. Elkin; Id. 667, Forth v. Chapman; Id. 748, Pleydelly. Pleydell; 6 Br. Parl.Cas., Kelly v.Fowler; 3 P. Wms. 258, Atkinson v. Hutchinson; Cowp. 410, Denn v. Shenton.
    
    
      
       2 Fearne, 259; 2 Atk. 308, Beauclerk v. Dormer; Id. 373, Saltern v. Saltern; 2 Ves. sen., Stafford v. Bulkeley; 1 Bro. 170, Attorney-General v. Hird; Id 188, Bigge v. Bensley; 2 Bro. 33: Glover v. Strothoff; 3 Atk. 882, Sheffield v. Lord Orrery; 2 T. R. 720, Goodtitle v. Pegden; 2 Bro. 553, Attorney-General v. Bailey.
    
    
      
       Note. See Keily v. Fowler, 2 Fearne, 236-289.
    
    
      
       2 Fearne, 266; Ambl. 122, Sheppard v. Lessingham.
    
    
      
       8 Co. 94, b.
    
    
      
       Hyde v. Parratt, 1 P. Wms. 1; Tissen v. Tissen, id. 500; Upwell v. Halsey, id. 651, and other cases.
    
    
      
      Note. See Fearne, 320, and Christian’s note to 2 Bl. 175.
    
    
      
       2 Fearne, 259.
    
    
      
       1P. Wms. 198.
    
    
      
       1P. Wms. 432.
    
    
      
       1 P. Wms. 534.
    
    
      
       Id. 563.
    
    
      
       Id. 663.
    
    
      
       Id. 748.
    
    
      
       See 2 Fearne, 488; Note (1) to 1 P. Wms. 750, Cox’s ed. and Amb. 125, Sheppard v. Lessingham.
    
    
      
       2 Atk. 308.
    
    
      
       1 Bro. 187.
    
    
      
       1 Call, 338.
    
    
      
       Ibid. 344.
    
    
      
       2 Atk. 311; 1 Bro. 190,
    
    
      
       3 Call, 342.
    
    
      
       Id 354.
    
    
      
       1 H. & M. 559.
    
    
      
       2 Pall, 313.
    
    
      
       2 Fearne, 445-448, 2 Atk. 621.
    
    
      
       Hairston v. Hall. 8 Gall. 218.
    
    
      
       Bass v. Bass, 4 H. & M. 478.
    
   Thursday, November 7th. The president pronounced the following opinion of the court:

“This court is of opinion that, although the case agreed in this cause has not expressly admitted the assent of the surviving executor of Joseph Royall to the legacies bequeathed by his will, and now in question, yet such assent is to be assumed, as between the present parties; as well- from the facts agreed in the case, that the widow and son of the testator were respectively possessed of the slaves severally bequeathed to them, (which will be intended as a lawful, and not tortious possession,) as because the case aforesaid has rested the cause upon the decision of two questions which exclude the necessity of the assent aforesaid; and because, while, *on the one hand, it is an unnatural presumption that parties litigant would have reference to a circumstance equally affecting, and, in one view, equally destructive of the title of them both; it is, on the other hand, equally reasonable, and usual, for parties to adjust their claims, in subordination to the ulterior claims of others not parties to the controversy.
“The court is further of opinion, that the inquiry before us is also narrowed by the case aforesaid, so as to exclude the question, whether the appellant is entitled to retain the slaves now in controversy, or any part of them, by reason of being one of the co-heirs or distributees of John the son, and his having paid the debts and funeraLexpenses of his mother, the intestate of the appellee; that case, in submitting it to the court to say, whether the limitation over to Lucy, the wife, was a legal and valid limitation or not, being supposed to have submitted the point upon the true construction of the will of Joseph Royall only; and not as being influenced by these, or other, extraneous facts or circumstances.
“With respect to the second question submitted, namely, whether (notwithstanding the death of Lucy, the mother, in the lifetime of John the son) the slaves limited to her by the will (supposing the limitation to be good) became vested in the appellee as her administrator? the court adopts the affirmative opinion ; in support of which, the case of Pinbury v. Elkin, 1 P. Wms. 564, is supposed to be a decisive authority.
“As to the point submitted, which involves the validity of the limitation aforesaid, it requires rather more consideration. While the court is clearly of opinion that, in relation to land, there' is nothing in the will which would restrict the limitation aforesaid, so as to make it valid; and while, even in relation to personal estate, (as to which a more liberal rule of construction has prevailed,) the court does not see that either the terms “then and in that case,” or the word ‘heir,’ used in the singular *number, would justify them in adopting the restrictive construction, (under the decisions on-this subject, either in this country, or in England,) the court is inclined to think that the testator could not have contemplated a vesting in his wife and her heirs, at a remote point of time, of the negroes in question; and, consequently, that the restrictive construction should be adopted in relation to them. This opinion is induced by his mentioning in the will the ‘negroes he had by his wife;’ omitting to say any thing about their issue: which negroes, thus specifically limited to her, were in esse at the time; and, consequently, the idea of a return of them, or their posterity, to the heirs of the wife, at a remote distance of time, seems to be reprobated.
“The court adopts this construction, by analogy to the principle of the case of Pleasants v. Pleasants, in this court, and to that of the numerous class of cases in which a remainder over to a person, who is in esse for life, has been held to restrict words, otherwise purporting an indefinite failure of issue.
“On these grounds, the court is of opinion that the judgment of the district court should be affirmed.” 
      
       2 Call, 319.
     