| Va. | May 10, 1883
Lead Opinion
delivered the opinion of the court.
William Pettyjohn died in 1822, and his will was proved and recorded in Amherst county, in the same year. The testator, after providing for his widow, divided his estate equally between his six children surviving him, and his grandson, Seth Woodroof, an infant son of a deceased daughter—that is, one-seventh to each. As to the shares of his surviving children, he provided that if any of the children should die without leaving lawful issue, then the share of such child so dying should revert hack to the surviving children of the testator. And as to his infant grandson, above named, he provided that his share should he continued under the direction and management of his executors, as trustees, to his use until he should attain the age of twenty-one years, or marry-—and then provided as to his share as he had provided with reference to the shares of his, the testator’s, six children, that in case the said grandchild should die, leaving no issue of his body, then his share and its increase to he equally divided among his six children above mentioned, who survived him, or their legal representatives.
The grandchild aforesaid grew to full age, received his share of the estate from the executors, and died unmarried and without issue of his body, and left a large estate, real and personal. His death occurred in the city of Lynchburg, in the year 1815, and the appellee qualified as his executor. Whereupon the
It was error to decree that Seth Woodroof took under the will ■of his grandfather his share of the estate in absolute property, because the will directed that if he died without issue of his body the property should pass to testator’s six children; and Seth Woodroof did die without issue of his body, so his share which he held for life passed to the said six children of testator under the said will. His attaining twenty-one years of age was the contingency upon the happening of which the executors were to deliver the property to him, before that time to be held for his use, and after that time to be held by him for life only, if he should die without issue of his body; and as he did die without issue of his body, the share bequeathed to him passed to the six children of the testator, or their legal representatives,
The estate of Seth Woodroof, the grandson, was limited in exactly the same way that the,share of each child was limited, and it is difficult to account for the strange error into which the court went. The provisions of the will are perfectly plain and unambiguous.
The circuit court erred in holding, moreover, that if the remaindermen took the estate of the said life tenant at all, they only took such as remained in kind at the death of the life tenant. Such a ruling would absolutely destroy in most, or certainly very many cases, the entire interest of the remainder-men, and also defeat the provisions of the will as to the life tenant. If the estate consisted of money, as this in part did, the life tenant could make no use of it if he kept it in kind; and if he invested it, the remaindermen would make nothing because it did not remain in kind. The decree of the circuit court is equally erroneous as to the slave property. If the life tenant kept anything he received in kind until his death without issue of his body, then it passed in kind; but if he converted any of the estate to his own use, then his estate at his death is liable for the value of the property so converted at his death without issue—that is, his personal representative is liable to the remaindermen or their legal representatives, the appellants, for the sum he sold the slaves for, with interest only from the date of his death. See Tabb v. Cabell, 17 Gratt. 160" court="Va." date_filed="1867-01-15" href="https://app.midpage.ai/document/tabbs-curator-v-cabell-7669159?utm_source=webapp" opinion_id="7669159">17 Gratt. 160; Fearne on Remainders, 414; Martin v. Green, 1 Georgia Decisions, 109" court="Coweta Cty. Super. Ct." date_filed="1842-03-15" href="https://app.midpage.ai/document/martin-v-greer-9339769?utm_source=webapp" opinion_id="9339769">1 Georgia Decisions, 109; Brown v. Lambert, 33 Gratt. 364. In this last case the court said: “ Where a trustee commits a breach of trust by a sale of the trust subject without authority, the cestui que trust may at his option disaffirm the sale and pursue the property in the hands of a volunteer or a purchaser for value with notice of the trust, or he may affirm the sale and resort to the proceeds in the hands of the trustee.” This was a case like the one in hand—of the sale of a slave by the life tenant and a suit to recover the
The case of Moorman v. Smoot, 28 Gratt., is a similar case. This court there held the remaindermen entitled to recover the value of the slaves notwithstanding their subsequent emancipation.
See also Kenny v. Kenny, 25 Gratt., and Cross v. Cross, 4 Gratt. The appellee seeks to defend the claim of appellants upon the ground of the statute of limitations. This defence is equally without avail to the appellee. The appellants had no cause of action until the death of the life tenant without issue; that occurred in ISIS, and appellants filed their hill in lStT. In less than two years after the right of action accrued the suit was brought, and so the claim of the appellants is not barred by the statute of limitations.
The appellants had no right in the slaves or other property until the death of life tenant without issue. Before the happening of that contingency they cannot be held to have acquiesced in any act concerning the same, and no charge of laches, for like reason, can attach to them. Since their right of action accrued, they have been prompt and diligent in the assertion of their claims.
The policy of the law concerning the speedy and absolute vesting of estates, has no application to this case. The terms of the will were within the policy of the law, and there is no aid for the appellees in that defence.
Upon the whole case, we are of opinion that the decree of the circuit court aforesaid should be reversed and annulled. And the cause must be remanded to the circuit court of Lynch-burg for further proceedings to be had therein, in accordance with the foregoing views, and an account to be taken of the amount of the share received by Seth Woodroof, deceased, of his grandfather’s estate, with interest from the date of the death of said Woodroof. Such slaves as died, or were emancipated, constitute no charge on his estate, if he had not converted them to
Dissenting Opinion
dissented.
The decree is as follows:
This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion for reasons stated in writing and filed with the record, that the plaintiffs are entitled under the will of William Petty-john, deceased, to the share of Seth Woodroof under the said will, and that the decree aforesaid is absolutely erroneous. Instead of said decree, the said circuit court should have entered a decree directing an account of the legacy received by Seth Woodroof under the will of William Pettyjohn, deceased, of the sale by him of slaves embraced in said legacy and the proceeds thereof, and should have decreed the payment of the amount so ascertained by the defendant to the plaintiffs, and ordering the payment by the defendant to the plaintiffs of their costs by them expended in the prosecution of their claims in this cause in the said circuit court.
It is therefore decreed and ordered that the said decree be reversed and annulled, and that the appellee pay to the appellants their costs by them about the prosecution of the appeal aforesaid here expended..
And this cause is remanded to the said circuit court of Lynch-burg for further proceedings to he had therein in order to a final decree in the cause in conformity with the opinion and principles herein expressed and declared; which is ordered to be certified to the said circuit court.
Decree reversed.