Opinion
(December Term, 1830.)
1. Slaves were, before the act of 1823 (Rev., ch. 1211), by deed limited to a woman "and her children at present living and those she may hereafter have, to have, etc., to her in manner aforesaid, for life, and afterwards to her present children, and any which may hereafter be born." Held that the limitations being in such succession, the mother took the whole interest.
2. Held, also, that if the deed had been executed in a State where such limitations of slaves were valid, they would have been supported here.
DETINUE for several slaves. The defendant pleaded the general issue, and the cause was tried before his Honor, Judge STRANGE. The plaintiffs were the children of Eleanor Smith, mentioned (542) in the following deed:
Nash, for plaintiffs.
No counsel for defendant.
FROM STOKES.
"State of Virginia, Mecklenburg County:
"Know all men by these presents, that I, Robert Hyde, of the county, etc., for, and in consideration of the natural love and affection I bear to Eleanor Smith, my sister and her children by her present husband, James Smith, and which she may hereafter have, have this day granted, given and transferred to my said sister and her children, at present living, and those she may hereafter have, the following property (setting forth the negroes claimed in this action) to have and to hold the before-mentioned property, to her, the said Eleanor, in manner and form aforesaid, for and during her life, and afterwards to her present children and any which may hereafter be born of the said marriage, and which may be living at the time of her death, to be divided among them in equal portions, to them and their heirs forever. In witness whereof," etc.
No evidence of title, except this deed, was offered by the plaintiff, and his Honor, being of opinion that the mother, Eleanor Smith, took the whole interest in the salves, and that the plaintiffs had no title as tenants in common with their mother, a nonsuit was entered, and the plaintiffs appealed.
The construction of the deed under which the plaintiffs claim is settled in our law. Upon the whole deed, the donees take in succession. The limitations over are unquestionably void. The construction may be varied by the law of another State in which it was executed. If it was executed in Virginia, the plaintiff should have proved the fact and the law of Virginia. It may be and probably is the law in that State that remainders in slaves after a life estate are valid, as they are known to certain purposes to have been part of the realty. But, if it be so, the burden of making it appear rested on the (543) plaintiffs, and in the absence of such evidence, the opinion of the Court below is correct.
PER CURIAM. Affirmed.