37 Ky. 165 | Ky. Ct. App. | 1838
delivered the Opinion of the Court. Judge Ewing did not sit in this case.
This writ of error seek the reversal of a decree directing the administrators of Basil Robinson, deceased, to surrender to the children and distributees of John Hen-drick, deceased, (whose wife was one of the distributees of said Basil,) a female slave — Tabitha, and several other slaves — her children, and enjoining a decree previously made in a suit between the distributees of Robinson, ordering the sale of the said slaves, preparatory to a final decree for distribution among themselves. The defendants in error — who were no parties to the decree for sale of the slaves — claim them under an alleged absolute gift of Tabitha, when a child, to their mother, by her father, and a possession by their father for more than seven years after that gift, and until his death in September, 1821; and, in their bill (filed only against Basil Robinson’s administrators and Thomas Hill, one of his sons-in-law who had administered on
If, as alleged and perhaps proved, the title to Tabitha had become vested in Hendrick at the time of his death, and Robinson afterwards took her into his possession, as an agent or trustee, to hire out for the benefit of the decedent’s family, this suit in chancery may, in our opinion, be maintained, and has not been barred by lapse of time; for it is evident that Hill, as Hendrick’s administrator, waived, from the beginning, and still renounces, all claim to Tabitha and her children as assets in his hands; and therefore, not only was tho alleged trust for the benefit of Hendrick’s distributees available as against Hill as administrator, but it might be enforced, of course, in a court of equity; and such a suit would not be barred by time, unless there had been an open renunciation of the trust five years at least prior to the commencement of the suit, and unless also, at the time of such renunciation, Hendrick’s children or some of them labored under no saving disability, or unless none of them labored under such disability for five years immediately preceding the filing of the bill; but there is no sufficient proof of any such renunciation, and there can be no doubt that, if there had been such renunciation, all Hendrick’s children were then minors, and that some of them were minors when this suit was brought.
Nor can the decree for the sale of the slaves for the
But, as a portion of the decree between Robinson’s administrators and distributees was enjoined in this case, it seems to us that all the parties to the decree thus enjoined were necessary parties to the suit enjoining it. And none of Robinson’s distributees, except the two who were administrators and Hill, have been made parties in this case.
As, for this last defect in the preparation of this suit, the decree we are called on to revise must be reversed, we shall not now express a distinct opinion as to the effect of the evidence respecting the right of Hendrick to Tabitha, or that of his children to her and her increase, as claimed in virtue either of his title or of any gift by Robinson to themselves, express or implied, since their father’s death. We may suggest, however, that, according to the facts as now exhibited, their claim is so far plausible and imposing as to have authorized an affirmance of the decree in their favor, or at least rendered a reversal very difficult, had all the necessary parties been before the Court.
But, for the defect of parties already suggested, the decree is reversed, and the cause remanded, with instructions to allow time for making all necessary and proper parties.