delivered the opinion of the court.
One of the principal questions in this case is whether the administrator of Joel Salmons or his distributees should have brought this action.
Salmons died in Kentucky in 1826. No administration in form was had upon his estate, but his widow and children (who were all of age but one) divided out his property, and
It is well settled both in Kentucky and Virginia, where the law declares slaves to be real estate for some purposes, that they do not, in cases of intestacy, descend like land directly to the heirs, but go to the administrator as assets. Without the assent of the administrator, the title of the heir is not complete, and he can not maintain an action for them against a third person. After the passage of the act of 1800 in Kentucky, (
There is no doubt, therefore, that the administrator is the
Where there is a particular estate in a chattel and a remainder over, a delivery to the owner of the particular estate may be considered as a delivery to the person who has the remainder. Upon the death' of the tenant for life in such cases, the title to the property is vested in the person having the remainder, and he alone is the proper person to bring an action for its recovery. As where a person dies, leaving-slaves to A. for life, with remainder to B. absolutely; upon the death of A., to whom the executor or administrator of the devisor has delivered them, B. may maintain his action. The property has passed from the estate, and the administrator has nothing more to do with it.
But where a life estate is created by will or by law, and no remainder is designated, the reversion, as the remainder is then called, falls back into the assets of the original estate, and the administrator, in such cases, is the proper person to sue. Such may be regarded as the character of the present case, where slaves have been assigned as dower, which is a life interest only, and the reversion on the death of the dow-ress is in the estate of the husband. The administrator of that estate, and not the heirs or distributees, may well sue, considering the property as falling back into the mass of assets. This course will not only be more convenient, but in some cases it may be important to the rights of the distribu-tees, who may have been unequally advanced in former distributions, and who may, through the intervention of this administration, have these inequalities corrected. Whether, under the circumstances of the present case, such as the death of Salmons’ intestate more than thirty years ago in Kentucky, and the acquiescence of all parties in the possession of the negroes in controversy by Mrs. Salmons as dower, the consent of the administrator of Salmons might not be presumed, and an action be maintained by the heirs, is not
The statute of limitations appears to have no bearing on this case, although some instructions were asked, and some evidence was offered, having reference to a title under this statute. A person having a life estate in property can not, by his acts or declarations, set up pretensions to an absolute estate, so as to make his possession an adverse one to the reversioner or remainderman. The reason of this is that there is no right of action in the reversioner until the particular estate lias determined, and the possession of the tenant is entirely consistent with the title of the reversioner. In fact the latter concedes the existencé of the former, and whatever the tenant for life may do or say about his title can be of no consequence to the reversioner; for, whether true or false, the latter can not disturb the life tenant during the admitted duration of his tenancy. It is impossible, therefore, for the tenant for life to make his possession an adverse one to the claim of one who has the remainder or reversion. It is not like the case of a trustee and a cestui que trust. The trustee may disclaim his trust and hold adversely to his ces-tui que trust as well as all others. The cestui que trust, unless laboring under some of the disabilities recognized by the statute and provided for, may sue the trustee at any .time; and therefore if an adverse possession continues long enough, it will protect the trustee, notwithstanding the general principle of equity law that no length of time will bar a trust. This general maxim is applicable only to cases where the relation of trustee and cestui que trust continue and is recognized; for when the trustee disavows his trust openly, and maintains a position adverse to his cestui que trust, as he may do, he has the same benefit from the statute of limitations which all others have. But the case of tenancy for life is different. There is no one to sue, no matter how
If Mrs. Salmons took the slaves as her dower or as tenant for life, her possession could not be made adverse to the persons in remainder or reversion ; and if Mrs. Salmons, as was contended on the part of the defendant, took an absolute estate, then the statute of limitations was out of the question.
The question of fact, upon which this case turned and upon which instructions from the court were given, was whether Mrs. Salmons took the slave Milly, the ancestress of the slaves sued for, as her dower and as a tenant fpr life, or whether, by virtue of the arrangement which took place between her and the heirs after the death of her husband, she acquired an absolute title to them. It appears that shortly after the death of Joel Salmons, his children paid off the debts of the estate, and having selected persons to appraise the property, divided it among themselves, after assigning to the widow the slave Milly and some other property. It is immaterial whether this division was binding upon the heirs or not; it was satisfactory to them and was satisfactory to the widow. It was made more than thirty years before this suit was brought, and has been acquiesced in ever since. The paper which preserved the evidence of this division was signed by all the children and was in the form of a penal bond with conditions. It was not signed by the widow, but was read over to her and was not objected to. This paper was given in evidence on the trial notwithstanding the objections of the defendants. We think the paper was admissible as a part of the res gestee. It was contemporaneous with and explanatory of the whole transaction.
It will be observed that by the law of Kentucky, as it was at the time of this transaction, a widow’s dower in the slaves of her husband could not under any circumstances by the
Upon- another point, also, the instructions of the court were more favorable to the defendants than the law warT ranted. By the laws of Kentucky, in 1826, a nuncupative will of slaves was not allowed. Such at least is the construction of the act of 1800, which directed slaves to pass by will as land, given by the courts of that state. (McCans & wife v. Board’s heirs,
The exclusion of the declaration of Mrs. Salmons, tending to show her claim of an absolute title in the slaves, was proper; (Watson v. Bissell,
The declarations or statements of Robert Salmons, John K. Salmons, and E. Chasten, distributees of Joel Salmons, deceased, were properly excluded. These persons were not parties, and were competent witnesses. Some of them did testify in the case, but no foundation was laid for contradicting their evidence, or impeaching their veracity, by declarations inconsistent with their statements in court.
The declaration of Nathan Salmons, the administrator, was also properly excluded, because it was made long before he was administrator; and as to matters which occurred previous to his taking out letters, he was fully competent to testify, although a party to the suit.
In relation to portions of the deposition of N. N. Williams, admitted on behalf of plaintiffs, which are objected to as