
    Ball & als. v. Johnson’s Ex’or & als.
    October Term, 1851,
    Richmond.
    (Absent Cabell, P.)
    i. Statute of Limitations — When It Begins to Run against Remaindermen. — The statute of limitations does not commence to run against the owners of the remainder in slaves in favour of the purchaser of the life estate, until the death of the life tenant.
    Chancery Practice — Presumption as to Parties — Case at Bar. — In a bill by persons claiming to be legatees or assignees of legatees, against defendants as other legatees and assignees of legatees, under the same will, for distribution of the slaves bequeathed to the legatees jointly, the presumption is, in the absence of all pleading and proof to the contrary, that the persons made parties to the suit as legatees are not fictitious persons, or mere pretenders to the characters assumed in the proceedings.
    3. Same — Want of Proper Parties — Case at Bar. — In such case, the case being a proper one upon its merits, for distribution of the subject amongst those entitled thereto, the bill should not be dismissed for want of parties, or of proof that the parties were what they professed to be; but the Court should direct the plaintiffs to amend their bill and make the proper parties, and should direct a commissioner to ascertain and report the persons entitled to the several distributive shares.
    In March 1844 a bill was filed in the Circuit court of King William county, in which the plaintiffs stated themselves to be Peggy Minor, widow of Richard Minor dec’d, and who before her marriage was Peggy Powers, Richard Gwathmey, sheriff and committee of the estate of James Powers deceased, and Samuel B. Bips-comb, who claimed as purchaser from Delila and Sally Powers, children of William Powers deceased. The bill charged that David Powers, after providing for the payment of his debts, left the remainder of his property to his wife for her life, and at her death to be equally divided among his eight children and the child of his wife by a former husband, who was to share equally with *his own children That the plaintiff Peggy Minor was one of the children, that Gwathmey was the representative of James Powers deceased, who was another of them, and that Bipscomb claimed the interest of William Powers, another child of David, by purchase from Detila and Sally Powers, the children of William; and the deeds from them to him were made exhibits with the bill. That among the negroes left by-David Powers to his wife for life, was one named Esther, who had since had some four or five children. That Mrs. Powers sold her life estate in this slave to Christopher Johnson, who* as plaintiffs had heard, had purchased the interest of several of the legatees in said slave. That Johnson died in possession of said slave and her increase, in the life time of Mrs. Powers, who had since died. That there has been no division of this slave and her increase, but that they were then in the possession of one or more of Johnson’s legatees.
    The bill stated that the names of the other legatees of David Powers were Thomas Toler and Sally his wife, who was Sally Powers, Polly Reid, who was the daughter of Mrs. Powers by her first husband, Richard Gwathmey, sheriff and committee administrator of David Powers deceased, and also of Alexander Powers, Betsey Powers, and Catharine Allen who was Catharine Powers, and Fielding Slater, who claimed as purchaser of the interest of Thomas Toler and Sally his wife. And making these and the surviving executor of Christopher Johnson, and his legatees, parties defendants, they asked for a discovery of the names, sexes and ages of the children of Esther, and for a division of the said slaves either by a sale or in kind; for their share of the hires of said slaves since the death of Mrs. Powers; and for general relief.
    Sherwin McRae, the surviving executor of Johnson, and the guardian of his two younger children, answered the bill for himself and his wards. He stated that the “slaves left by Christopher Johnson had been distributed among his legatees. That the bequests of the slaves were absolute and unconditional, recognizing no property or title in any other person. That Esther was in the possession of Johnson many years before his death; and that she and her children have been in possession of his legatees ever since; a possession which had been quiet and undisturbed, and adversary to all the world. That this possession had continued more than five years in Christopher Johnson before his death, and he died in 1832; and had continued ever since in those claiming under him. And they therefore relied on the statute of limitations. He further stated that Esther and her children were with other slaves bequeathed by Christopher Johnson to his wife for her life, and then to his three youngest children; and had been divided amongst them according to the will. And he called for proof of the identity of the Esther mentioned in the bill with the slave in the possession of Johnson, and bequeathed by his will; and strict proof of the title of the plaintiffs in all other respects. And it was objected that the administrator or executor of William Powers was not a party to the suit.
    It appears from the evidence that David Powers died previous to July 1806, and that a negro girl named Esther was allotted to Mrs. Powers, as a part of her distributable interest in her husband’s estate. That some time afterwards, the time is not stated, but it was previous to 1825, Mrs. Powers sold her life estate in this slave to Christopher Johnson, and that since Johnson’s purchase of her, all her children, five in number, have been born. Johnson seems also to have purchased out the interest of some of the remaindermen in this slave. And in 1832 he bequeathed these slaves to his three youngest children. Mrs. Powers died in 1843.
    The cause came on to be heard in May 1846, when the Court dismissed the plaintiffs’ bill with costs.
    *At the same term of the Court there was an application for a rehearing of the cause on the ground of after discovered evidence, and the affidavits of several witnesses were filed with the petition, to prove that Johnson had only a partial interest in the slaves. But the Court refused to rehear the cause. And thereupon the plaintiffs, (one of whom, Peggy Minor, had married Achilles Ball,) applied to this Court for an appeal, which was allowed.
    Byons, for the appellants,
    insisted, that their title to an interest in the slaves was fully made out. And that Mrs. Powers the life tenant, having lived until 1843, until that time the possession of the purchaser from her and those claiming under him, was not adversary but under her title; and therefore that the statute of limitations was no bar. He referred to Lynch v. Thomas, 3 Leigh 682; Merrit v. Smith, 6 Id. 486.
    Daniel, for the appellees,
    insisted,
    1st. That the answer having put in issue the identity of both the plaintiffs and the property claimed, that identity must be proved; and that there was a total absence of proof that the plaintiffs were the persons whom they claimed to be. So there was no proof of the assignment to Lipscomb. And upon the necessity of proof of the assignment, he referred to Corbin v. Emmerson, 10 Leigh 663; Tennant v. Patton, 6 Leigh 229.
    He insisted further, if there had been proof of the title of the assignors and of the assignment, that Lipscomb was not the proper party to sue, but William Powers’s administrator. And he insisted that the joinder of an improper party was fatal. For which he cited Cuff v. Platall, 3 Cond. Eng. Ch. R. 651; Makepeace v. Haythorne, Id. 652; King of Spain v. Machado, Id. 643; Dickenson v. Davis, 2 Leigh 401.
    
      
      Statute of Limitations — When It Begins to Run against Remaindermen. — In Merritt v. Hughes, 36 W. Va. 363, 15 S. E. Rep. 58, it is said: “It is a principle everywhere admitted that the possession of a tenant for life is not adverse to the remainderman or reversioner, and therefore the statute does not begin to run against them until the end of the life estate. Hutch. Land Titles, sec. 353; Ang. Lim. §§ 371, 372; Jackson v. Schoonmaker, 4 Johns. 390; Co. Litt. 240b; Wood, Lim. 527; Tyler, Eject. 923, 946; Merritt v. Smith, 6 Leigh 493; 1 Rob. Pr. (New) 508, 510; 3 Wasbb. Real Prop. 132, 133; Ball v. Johnson, 8 Bratt. 285."
      
      See also, in accord, Hope v. N. & W. R. Co., 79 Va. 288; Effinger v. Hall, 81 Va. 100; Davis v. Tebbs, 81 Va. 606; Hannon v. Hounihan, 85 Va. 439, 12 S. E. Rep. 157; Central Land Co. v. Laidley, 32 W. Va. 143, 9 S. E. Rep. 64; Beattie v. Wilkinson, 36 Fed. Rep. 649, all citing the principal case.
    
   “'BALDWIN, J.,

delivered the opinion of the Court.

It appears to the Court that the slave Esther, in the proceedings mentioned, was the property of David Powers deceased, in his life time, and was by his last will and testament bequeathed to his wife Elizabeth Powers during the term of her natural life, and after her death in remainder jointly to his eight children therein named and the daughter of his said wife by a former husband: That Christopher Johnson, the father of some of the appellees, purchased from the said Elizabeth Powers her life estate in the said slave, and also purchased the undivided interest therein of some of the legatees in remainder, but whose or how many does not certainly appear. That the said Johnson at the time of his purchase from the said Elizabeth Powers, acquired possession of said slave, and held her and her increase until his death; and that since his death she and her increase have been held by his widow during' her life, and since her' death by some of his children and legatees, under his will. That the said Elizabeth Powers died a year and some months before the institution of this suit, and thereupon her life estate which she had sold to the said Christopher Johnson was determined ; and those claiming under him have thenceforth had no interests in the subject, beyond those acquired by the said Christopher Johnson by purchase from some of the legatees in remainder as aforesaid.

And the Court is of opinion, that the legatees in remainder of the said David Powers, whose interests in the subject were not purchased by the said Christopher Johnson, had no cause of action or suit to recover the same until the determination of the life estate by the death of the said Elizabeth Powers, until which time the possession of the said Christopher Johnson, and of those claiming under him, was not adversary to, but consistent with, and in support of, the title in remainder: And the persons so entitled are not therefore *barred by the statute of limitations; nor does the lapse of time furnish any presumption against their right to recover their respective interests in the subject.

It also appears that the object of this suit is to obtain distribution amongst those entitled in remainder of the said slave Esther and her increase, and of their hires since the expiration of the life estate. The bill purports to make as the proper parties thereto, some as plaintiffs and the rest as defendants, those interested in the subject, whether as legatees or as representing or deriving title from legatees: And it represents that the said Esther and her increase are in possession of some one or more of the heirs and legatees of the said Christopher Johnson, and it makes them and his surviving executor defendants; and it further represents that the plaintiffs have heard that the said Johnson in his life time purchased the interests of some of the legatees in remainder.

And the Court is of opinion that the parties in this suit, both plaintiffs and defendants, are to be treated as occupying the position of persons claiming a common right in the same subject, derived from the same original source: and the jurisdiction of the Court is invoked for the purpose of causing the proper distribution in severalty to be made amongst them. There is no conflict, so far as yet appears, of pretensions in the cause in regard to the ownership of the several distributive shares; and if there be any difficulty in making the distribution sought, it must arise from mere absence of proof as to the identity of persons made parties as legatees, or as to the representative character of parties in relation to deceased legatees, or as to the fact of assignment to parties claiming to be purchasers from legatees. These are matters in which the appellees have no interests beyond those acquired by the said Christopher Johnson in his life time. The distributive shares in point of number are fixed, and the persons to take them Respectively designated by the will of the said David Powers. To such of the shares as were purchased by said Christopher, when ascertained, the appellees or some of them will as his representatives be entitled : but their shares cannot be enlarged or diminished by any failure of proof as to other distributive shares not acquired by their testator. The only legitimate consequence of a failure of proof as to some of the distributive shares would be to suspend the action of the Court in the disposition thereof until the defect be supplied; and it is the province of the Court to direct the proper steps to be taken for that purpose. It could furnish no good reason for dismissing the suit, and thereby defeating» the rights of parties who appear to be entitled to other distributive shares. The presumption is, in the absence of all pleading or proof to the contrary, that the persons made parties to the suit as legatees, or personal representatives of legatees named in the will, are not fictitious persons or mere pretenders to the characters assumed in the proceedings; and this presumption is applicable to most of the parties in the cause. It is only in reference to parties claiming as entitled to distributive shares by purchase that the proceedings and proofs are defective: these are the plaintiff Eipscomb, the defendant Slater, and the appellees as representatives of Christopher Johnson. Eipscomb claims the share of the legatee William Powers deceased, by purchase from Delila and Sally Powers his children ; but the said Delila and Sally, and the personal representatives, if any, of the said William Powers deceased, are not made parties either as plaintiffs or defendants, and there are no averments or proofs tending to shew that the distributive share of the said William Powers became vested in his said children; nor is there any evidence of the execution of the papers purporting to be assignments from them to the said Eipscomb.

The defendant Slater is stated in the bill to claim b5\*purchase, as the plaintiffs have been informed, the interests of the defendants Thomas Toler and Sally his wife one of the legatees named in the will; but neither Slater nor Toler and wife have answered, and there is no evidence of such purchase. The appellees, or some of them, as representatives of Christopher Johnson, are entitled to such of the distributive shares as he may have acquired by purchase from legatees; but such of his representatives as have answered are silent upon that subject, and no written or other definite evidence in relation to it has as yet been produced.

The case being a proper one upon its merits for distribution of the subject amongst those entitled thereto, and as such distribution must be accomplished through the agency of one or more commissioners, the decree upon the hearing ought of course to have been interlocutory only, and to have directed the measures requisite for supplying- the defects above mentioned in the pleadings and proofs, Ror this purpose the Court ought to have directed the plaintiffs to amend their bill, and make the proper additional parties, and a commissioner or commissioners to ascertain and report the persons entitled to the several distributive shares, the number, sexes, names and ages of the slaves and their estimated values, the hires of them accruing since the expiration of the life estate, and the persons accountable therefor, with the credits to be allowed for charges incurred since that time in the care and maintenance of any of tender years, or otherwise incapable of labour, and to ascertain and report whether the slaves could be distributed in kind, and if so, to apportion the respective shares of the persons entitled. And upon the coming in of such report, it would have been proper for the Court by its further directions to accomplish a distribution of the slaves in kind, or of the proceeds of a sale of them, if that should be necessary; and finally to dispose of the cause according to the rights of the parties.

*The Court is therefore of opinion, that the decree of the Circuit court dismissing the bill of the plaintiffs is erroneous. Reversed with costs, and remanded with instructions to reinstate the cause, and proceed according to the principles above declared.

Decree reversed.  