Benton v. Pope , 24 Tenn. 392 ( 1844 )

Turley, J.

delivered the opinion of-the court.

This is an action of trover, brought by the defendants iner* rot, infants, under the age of twenty-one years, against the plaintiff in error; and their right to recover the property sued for, to wit, a negro man named Ben, depends upon the com struction of the following deed of gift:

“Know all men by these presents, that I, Wm. Pope, have this day given unto my grand children, Salina Pope, Mary Pope, and Sally Pope, heirs of Wm. W. Pope, my son, two negro men, one named Charles, about fifty years of age, and Ben, aged about forty, to have and to hold the same unto the above named children forever; the same to remain in the possession of Wm. W. Pope during his life, but not to be subject to his creditors, or liable for the payment of his debts, in any way whatever; and the said Wm. W-. Pope is not to dispose of said negroes in any way or manner, either for his life, or any number of years. Given under my hand and seal, this 17th day of June, 1841.

“WM. POPE, [Seal.]”

Now, the question is, does this deed of gift, vest in Salina, Mary and Sally Pope, the absolute legal title, injirasenti, to these negroes, or does it give a life estate to Wm. W. Pope, with remainder to his children?

We have no hesitation in saying, that the whole and exclusive legal title to the negroes, is vested by the deed in the plaintiffs, the grand children of the donor; and.if the father has any interest whatever, under the deed, it is amere equitable usu-fruct, subordinate to their legal title, not liable for his debts, and not available for any purpose in a court of law.

It has been suggested,- that, perhaps, minor children cannot bring an action of trover by their, next friend. But we know of no principle forbidding it. But we have held, that a pro-chein amy is not entitled to receive money coming to .infants upon judgments obtained through him for them.

And we, therefore, affirm the judgment of the Circuit Court, and direct that the money, when'collected, be paid into court, subject to the order of a legally constituted guardian of the infants, when such one-shall appear.