
    Duncan & Wife & Others v. Wright.
    February, 1841,
    Richmond.
    Wills — Detinue—When Statute of Limitations Begins to Ran — Case at Bar. — Testator lends three slaves to his daughter during her natural life and to her heirs lawfully begotten of her body; but should his daughter or her husband dispose of. convey out of the way, conceal, or attempt to alienate the slaves, then her title to cease, and he directs his executors to take them into possession, and after her decease they and their increase to be divided among her children; the daughter’s husband sells one of the slaves; the testator’s executors are apprised of the sale, but fail to take the slave sold Into their possession, or to bring any action to recover the same; the daughter dies; and long after the lapse of five years from the date of the sale, but within five years after the daughter’s death, her children bring detinue for the slave: and the only question being from what time the statute of limitations began to run, Hisim. the right of the children accrued upon the death of their mother, and so the statute began to run against them only from the time of her death.
    Same — Validity of Condition Not to Alien — Case at Bar. —Note, the question whether the daughter did not take an absolute estate, exempt from the condition that she should not alien as being repugnant and void, was not presented by the record, and therefore not decided by the court.
    Detinue for a slave named John, brought in 1829, by Wesley Duncan and Sarah his wife, William Davidson *and Mary his wife, and William and Henry Camden, against Wright, in the circuit court of Nelson. Pleas, non detinet and the statute of limitations.
    
      At the-trial of-the issues, the plaintiffs gave in evidence the will of Charles Burrus, who died about the year 1796, whereby he bequeathed as follows: “I lend to my daughter Buey Camden, my negro woman Sidney and her.child Sarah and negro boy John” (this boy John was the slave in question) “during her natural life, and to her heirs lawfully begotten on her body; but should m.y said daughter or her husband dispose of, convey out of the way, conceal, or attempt to alienate the negroes aforesaid, I do hereby declare her title to cease, and direct my executors to take them into possession; and in such case, after her decease, they and their increase to be divided among her children if any living, otherwise to be .divided among my children, Joseph, &c.” ■ Joseph and Charles Burrus, executors named in the will, took probat in January 1797.- And the plaintiffs ' adduced evidence to prove, that Henry Camden, the 'husband of the legatee Lucy and their father, about the year 1800 or 1801, sold the slave John to one Bryant, under whom the defendant .claimed; that the legatee Lucy Camden died within five years next before the commencement • of this suit; that the plaintiffs,- Sarah Duncan, Mary Davidson, and William and Henry Camden, were her children; and that they were infants at the time of the. sale made by their father to Bryant. And then the defendant adduced evidence on his part to prove, that the-testator’s - executors Joseph and Charles Burrus migrated from Virginia about the year 1807, and one of them, Joseph, died in Tennessee in .1823; that they were apprised of the sale of the slave John by Henry Camden, the husband of the legatee Lucy, to Bryant',' before they left Virginia ; and that the purchase money óf the slave was not paid by Bryant, until after he had had an interview with the executors, who were said to have ‘made objections to' the sale, interposing' their claim under their testator’s will. (There was no proof adduced of the assent of the executors to the legacy, in the first instance ; but the plaintiffs’ claim -was not resisted on that ground, and the court considered that fact 'as admitted.) Whereupon, the defendant moved the court to instruct the jury, that the statute of limitations, which he relied on in his defence, began to run from the date of the sale by Camden the husband to Bryant, notwithstanding the infancy of the plaintiffs, provided it should be proved to them, that Camden sold, and the purchaser Bryant claimed under the sale, the absolute estate in the slave, that such sale and claim were known to the testator’s executors before their 'migration from’ Virginia, and that there was no impediment to a suit by the executors before they left the state. And the court gave the instruction accordingly; to which the plaintiffs excepted.
    Verdict and judgment for'the defendant. The plaintiffs applied by petition to this court, for a supersedeas; .which was allowed.
    Garland, for the plaintiffs in error,
    maintained, that, -upon the true construction of the will of Charles Burrus, the legal title of the slave in question, which the legatee for life forfeited by the alienation, vested in the plaintiffs at the death of their mother, not in the testator’s executors in trust for them, and that their right did not accrue until their mother’s death; and this action having been brought within five years after her death, the statute of limitations could not be a bar.
    Leigh, contra,
    said the plaintiffs had no title at all. The bequest under which they claimed was so framed, that, had the words been applied to real property, they would have given mrs. Camden an estate tail, tantamount by our law to a fee simple,, and applied to personal property, they gave her the absolute estate; and *then to this absolute estate a condition subsequent was annexed, that neither she nor her husband should alien the property, but should keep it constantly in actual possession. The condition was repugnant and void, and the legatee took the property exempt from the restraint upon her power of alienation. Co. Litt. 223a. [Tucker, P. Whatever there may be in that point, it does not appear that it wras raised in the court below, and it is not presented by the record.] Leigh agreed, that it was not; but, he said, as the point must arise upon the . will, it would be well that the court should intimate its opinion upon it (as under like circumstances it had often done),, and so put an end to a controversy, the expense of which was probably equal to the present value of the subject. But supposing the bequest .effectual- according to the testator’s intent, then immediately upon the.alienation of the slaves, the legal estate was vested in the executors; they -were empowered and required to take them into their possession; they -might have rnaintained ■an action for them.- The trust on which they were in that case to hold them was not expressly declared, but if resulted very plainly: they were to hold them in trust for mrs. .Camden for life, and. after her death in trust for her children to be divided among them. The statute of limitations was a bar to any action the executors and trustees could have brought at this late day.; and it was equally a bar to the claim of-the cestuis que trust, and that notwithstanding their infancy., Wych v. Last India Co., 3 P. Wms. 309.
   TUCKER, P.

The only question is as to the date from which the statute of limitations began to run. The question of title does not arise upon the record. As the case is presented to us, we must take it that mrs. Camden or her husband had no power to-sell the slaves, and that upon the sale her title ceased, and a right accrued to the executors to take them into possession *during her life. It still r.emains to decide, whether during her life the legal title devolved upon her children by the bequest, or whether the executors were trustees for them. And I am of opinion, that the children were to take nothing until after the decease of mrs. Camden, at which time the title devolved upon them, and not till then. No trust of the profits between the date of the sale and mrs. Camden’s death is declared in their favour. It is not necessary to decide, w'hether the profits went- to her, or into the residuum of the testator’s estate: they could not, under the terms of this will, pass to her children. The children, then, had no title until their mother’s death, and the statute consequently was not a bar to this action, brought within five years after her death. The judgment must, of course, be reversed, the verdict set aside, and a new trial had, upon which the instruction given by the court is not to be repeated.

The other judges concurred. Judgment reversed, and cause remanded for a new trial.  