Held by the court, that slaves, while in the possession of the tenant for life of them, are not choses in action of the reversioner in fee, because the possession of tenant for life is not adverse to, but consistent with his title. Rachel had, in fact, the general, and the donor only a special property in the slaves. The right to the slaves in question survived to the husband of Rachel, and, of course, the plaintiff in the circuit court showed no right to maintain the action. From an attentive examination of the cases, the clear result from all of them seems to be, that if a feme sole be entitled to slaves in remainder or reversion, and marry before the determination of the particular estate, the right will go to the husband or the wife, as the one or the other may survive. And according to that doctrine, it is obvious, as the husband survived in this case, the right to the slaves in question must belong to him. Judgment affirmed.

Where the devise was to the daughter for life, and if she leaves heirs

6.

BELL & WIFE v. HOGAN. July T. 1828. 1 Stewart's Rep. 536. Detinue for slaves. Bell and wife brought an action to recover twelve negroes under the will of Thomas B. Whitmell, which was in these words: "I lend to my daughter, Elizabeth West Whitmell, six negroes, (naming them,) and their increase during her natural of her bo- life; and if my daughter should leave an heir or heirs, lawfully bedy, then to i gotten of her body, I then give to the said heir or heirs so begotten, for ever; the said six negroes, and their increase, to them and their heirs forever. And for want of such heirs, my will and desire is, for such hairs, the above-named six negroes and their increase to be equally di

and for

want of

then to tes

tator's four vided among my four children, (naming them,) and their heirs for

children;

the remain- ever. '

der to the

children is

Elizabeth married, and took possession of the six negroes; and not too re- after the testator's death intermarried with the defendant.

mote.

Two of the testator's children released to their sister Elizabeth. The plaintiff's wife being one of the children, Elizabeth, the devisee, died without ever having had any children.

The court charged the jury, that the bequest to Elizabeth was a limitation over, after an indefinite failure of issue, and therefore void; that the limitation over being void, the first legatee took an absolute estate; that if said Elizabeth was entitled only to a life estate, that then, at her death, the property in the slaves would revert back, and sink into the residium of the testator's estate undisposed of by his will. Plaintiffs excepted.

Per Cur. Lipscomb, Ch. J. It is a rule of law, that a limitation

over to another, after an indefinite failure of heirs, is bad, because it is too remote. If the testator in the case under consideration meant, in his limitation over to the plaintiff, and her brothers, that it should not take effect until there had been an indefinite failure of heirs, we cannot carry his intention into effect; and the charge of the court was correct, that it was too remote, and that Elizabeth, the first taker, took an absolute estate. But if we are authorized, from the terms of the bequest, to believe that an indefinite failure. of heirs was not meant, and that by "failure of heirs," he meant heirs of a particular kind, then his intention is not opposed by the rule of law, and should be carried into effect. This limitation was not too remote, because it was to take effect, if at all, at the death of the first taker. And the court referred to Peek v. Pagden, 2 D. & E. 721.; Porter v. Bradley, 3 D. & E. 143.; Wilkinson v. South, 7 D. & E. 551.; Sheers v. Jeffries, 7 D. & E. 585.

BETTY V. MOORE.

7.

Spring T. 1833. 1 Dana's Rep. 235.

on condition that if the purchaser die

Suit for freedom. Betty claimed to be free under the will of A sale of a Jeremiah Moore, who willed, that after the death of his wife Judith slave, upshe should be free. Frank Moore transferred to his sister Judith, Betty, absolutely if she had children; but if his sister died without children, Betty should revert to him. Judith married Jeremiah Moore, the testator, and died without issue. The court instructed the jury, that upon these facts Betty had no right to freedom. Verdict and judgment for defendant.

without is

sue it shall

revert or third party,

pass to a

the condition is void, and

the property vests in

the first

Per Cur. The judgment must be reversed. At common law, a gift to a man and the heirs of his body was an estate upon condition, that it should revert to the donor, if the donee had no heirs taker. of his body; but if he had, that it should remain to the donee. It was therefore called a fee simple, on condition that he had issue. 2 Black. Com. 110. The statute de donis afterwards turned this estate upon condition, when it created the conveyance of real estate into fee tail. As to personalty, it still remains a fee on condition. According to the earlier decisions, while chattels were of little estimation, a grant of personalty for life carried with it the whole estate. But the law, as it has been settled in modern times, allows the limitation of a remainder after a life estate in personalty. And it has even been allowed, by executory devise or conveyance in trust, to create what is, to some extent, in effect the same as a conditional fee, or estate tail, in such property, without thereby passing the absolute and entire interest to the first taker. This, how

Where the

first taker

solute es

sequent li

void.

ever, is expressly confined to two excepted modes of creating an estate in personalty. For it is well settled, that, (with the exception of an annuity,) wherever by any of the ordinary modes of conveyance, an estate in fee conditional or fee tail is granted in or out personalty, that it passes the whole entire to the grantee or first taker, and consequently, all further limitations or reservations are null and void. Co. Litt. 20. (a); Fearn. on Cont. Rem. 460. 463; Roper on Leg. 393. So that, properly speaking, there can be no such estate in personalty as a fee simple, on condition of having issue, or fee tail, but all such estates, when attempted to be created, carry the whole interest.

8.

SMITH V. BELL AND WIFE. July T. 1827. Martin & Yerger's

Rep. 302.

The testator devised as follows: "I give to my wife, Elizabeth, takes an ab- all my personal estate whatsoever, and of what nature, and quality, tate, a sub- and kind soever, after paying my debts, legacies and funeral exmitation is penses; which personal estate I give and bequeath unto my said wife, Elizabeth, to, and for her own use and benefit, and disposal absolutely. The remainder of said estate, after her decease, to be for the use of my son Jessee." The bill charged, that Elizabeth married the defendant Bell, who took the estate consisting principally of negroes. Jessee, the son, assigned to the plaintiff all his claim and interest in the personal estate of his father after the death of the widow. The chancellor dismissed the bill.

Per Cur. Catron, J. The decree must be affirmed. Where the first taker has an absolute estate in the property devised, then the limitation over is void, being inconsistent with the interest given to the first taker.

A devise to

the body.

9.

HIGGINBOTHAM V. RUCKER. April T. 1800. 2 Call's Rep. 313. 319.

Held by the court, that where a father makes a gift of slaves to the heirs of his daughter, and the heirs of her body, and in case she die without issue, that is, children of her body, the said slaves shall return to the grantor, the limitation is not too remote, and is therefore good. It is a clear principle, that a limitation of personal estate, after an indefinite failure of issue, is void as tending to a perpetuity; but, it

is also a principle, that with respect to personal estate, the courts incline to lay hold of any words, which tend to restrict the generality of the words "dying without issue" to mean "dying without issue living at the death." Thus a limitation to a person in issue for life, after dying without issue is good, because the contingency must happen, if at all, in the life time of the remainderman; and the limitation to him for life, restrains the generality of the words, " dying without issue;" otherwise the limitation over would be void. See Dunn v. Bray, 1 Call's Rep. 338.; Timberlake and Wife v. Graves, 6 Munf. Rep. 174.; Gresham v. Gresham et al., 6 Munf. Rep. 187.; Didlake v. Hooper, Gilmer's Rep. 194.; Bradley v. Mosby, 3 Call's Rep. 50.; Pleasants v. Pleasants, 2 Call's Rep. 320. (2d ed. 270.)

10.

DUNN AND WIFE V. BRAY. Oct. T. 1798. 1 Call's Rep. 338.

devise to

heirs for

ever.

Held by the court, that where the testator devised certain slaves So where to his son W." and his heirs for ever, but if he should die and he makes a leave no issue, then to his son C.," the limitation to C. is good, and W. and his not too remote. See Shaw v. Clements, 1 Call's Rep. 429. And in the case of Royal v. Eppes, Adm'r of Royal, 2 Munf. Rep. 479., the clause in the will was, "it is my will and desire, that in case my son John should die without heir of his body lawfully begotten, that then, and in that case, I give to my wife Lucy, and to her heirs forever, all the negroes which I had by her," the court held it was a good executory devise in favor of Lucy; not on the ground, that the word "then" was used; or the word "heir," in the singular number; but because the bequest was of the negroes the testator had by her, (saying nothing of their issue,) and this was considered as evincing that he did not intend a return of them, or their posterity, to his wife, at any remote period of time.

11.

KEEN et al. v. WEST. Spring T. 1813. 3 Bibb's Rep. 39.

of the common law as

to remainin

vail.

Held by the court, Owsley J., that where A. gives slaves to B. The rules for life, with remainder to the children of B.; the remainder is good. In the case of Higginbotham v. Rucker, 2 Call's Rep. 313., it was decided that the gift of a slave to one for life with remainder to slaves prehis children, was a good limitation. We think, by the rules of common law, as they are recognized and known, both in England and in this country, a personal chattel may be granted to one for life, with remainder to another, either by will or deed.

12.

Rule of re

the remain

der man.

JOHNSON V. SEVRER'S EX'RS. June T. 1830. 4 Marshall's Rep.

141.

Held by the court, Underwood, J., that the amount of recovery covery by by a remainderman, against the vendee of the owner for life, who sells the fee simple of the negro, is not the criterion of damages in a suit by such vendee against his vendor in a covenant of title; but the value of the slave at the time he is demanded by the remainder claimants, after termination of the life estate, with interest on that value, and costs of suit, are the proper measure of the warrantor's responsibility.

(XIII.) INCAPACITY OF SLAVES.

(A.) TO MAKE A CONTRACT.*

FREE LUCY, AND FRANK.

1.

Fall T. 1826. 4 Monroe's Rep. 167.; EMMERSON V. HOWLAND, 1 Mason's Rep. 45.

The court held, that contracts made by negroes while in slavery, do not bind them after they are liberated; and, consequently, a plea by a free negro, that a writing sued on was delivered when he was a slave, is good.

* One general principle predominates in all the states, and in the British, Spanish, and Portuguese West Indies, and that is, that a slave cannot make a contract. 1 Maryland Rep. 561. 563. Not even a contract of matrimony, Ibid. Stephens on Slavery, &c. p. 59. 60. Wraxall's Memoirs, Vol. 2. letter 21. And in many of the states this principle has become part of the statute law. See James' Dig. 385, 6.; Prince's Dig. 453.; 2 Litt. & Swi. Dig. 1159.; Haywood's Manual, 525.; Mississppi Rev. Code, 379.; Martin's Dig. 616. And it is stated in Goodwin on Slavery, p. 43., that a slave cannot acquire property. And the same principle is stated in "Bickell's West Indies as they are," p. 66.; Niles' Reg. vol. 17. p. 200; ibid. vol. 20. p. 273.