Opinion
(December Term, 1845.)
1. A bequest of slaves to A., and "after her death to be equally divided between the heirs of A.'s body," is a good limitation over to the children of A.
2. Where the person in possession of this property after the death of A. claimed it as his own, it was not necessary for the remaindermen to make any demand on him before they commenced their action; and they are entitled to damages for the detention of the property from the time of A.'s death.
APPEAL from CASWELL Fall Term, 1845; Dick, J.
Kerr for plaintiffs.
Morehead for defendant.
Detinue for certain slaves mentioned in the declaration. The plaintiffs claimed the slaves under a bequest in the will of John Lea, who died in March, 1803, and whose will was admitted to probate at April Term, 1803, of Caswell County Court. The bequest was in the following words: "My will is that my daughter, Betsy Evans, shall have negro Hannah during her lifetime, and at her death I leave (89) Hannah and her increase to be equally divided between the heirs of my daughter Betsy's body. Betsy Evans was the wife of Elisha Evans, and the plaintiffs were her children and the representatives of her children. It was proved that more than forty years ago the slave Hannah was delivered by the executors of John Lea to Elisha Evans, husband of Betsy, and that the said Elisha sold the said slave to the defendant Allen about forty years since, and that the slaves in controversy are the children of Hannah, born while she was in possession of the defendant. Betsy Evans died in April, 1843, and this action was commenced in May, 1844. A demand of the slaves, before action brought, was proved, and also their value and the value of their services per annum. The defendant relied on the pleas of the general issue and the statute of limitations, and insisted that the limitation over in the will of John Lea was too remote; secondly, that he was protected by the statute of limitations; and, thirdly, that if the plaintiffs were entitled to recover, they could only claim damages from the time they made their demand. But the court ruled that the limitation over was good in law, that the statute of limitations did not bar, and that the plaintiffs were entitled to recover damages for the detention of the slaves from the time of the death of Betsy Evans. Under these instructions the jury found a verdict for the plaintiffs, and judgment being rendered accordingly, the defendant appealed.
The limitation over in the bequest in the will of John Lea of the slave Hannah and her increase, after the death of his daughter, Betsy Evans, "to be equally divided between the heirs of my daughter Betsy's body," is in law a good limitation over. That was held by this Court in Swain v. Rascoe, 25 N.C. 200.
(90) The remaindermen had no right to commence their action until the death of their mother; and three years had not run from that time before they brought their action. The statute of limitations, therefore, was no bar. As to the damages, it appears that the defendant held and claimed these slaves as his own property. It was, therefore, not necessary for the plaintiffs to have made any demand before the commencement of their action. Knight v. Wall, 19 N.C. 125; and damages were consequential upon the things sued for, from the commencement of the plaintiff's right of action, which was on the death of their mother.
PER CURIAM. Judgment affirmed.
Cited: Evans v. Lea, 40 N.C. 172.