58 Ky. 495 | Ky. Ct. App. | 1859
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
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
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.