Taylor v. Graves , 2 Va. Col. Dec. 55 ( 1753 )

In Detinue a Case was agreed vizt. R. P. poss’ed of the Slaves in Question by his Will dated in 1712. devises to his daughter Mary the Use Labour and Service of them during her Life and after her Decease the said Slaves and their Increase to fall to her Heirs of her Body lawfully begotten forever.

Mary had issue a Daughter living at the Time of the Devise and the Death of the Testator but died before the Mother who is also dead and the Pit. claims as Heir to the Testator.

The testator here has given only an Estate for Life to his Daughter with a Contingent Remainder to the Heirs of her Body and there being such when the Contingency happened viz. at her Death the Remainder is void and the Pit. as Heir at Law to the Testator is entitled to these Slaves

Barradall fr Deft

I conceive that Slaves in this Case are to be considered meerly as Chattels, but before I speak to that I shall shew that taking them to be real estate the Pit. can have no Title If this was a Devise of Lands Mary would take an Estate tail by the Words of this Will and not an Estate for Life with a Contingent Remainder to the Heirs of her Body It is a Rule laid down in Shelley’s Case 1 Rep. 104. b. 1 Inst. 22. b. that where the Ancestor takes an Estate of Freehold a Limitation to his Right Heir or Heirs of his Body are Words of Limitation and not of Purchase And so it was adjudged 1 Vent. 214. 225. King & Melling and Fitzg. 7. Shaw & Weigh There is however some exceptions to this General Rule in the Case of Wills where the Testator’s Intention is apparent to lodge the Inheritance in the Issue as Lodington & Kyme and Backhouse & Wills cited Fitzg. 22. Shaw v. Weigh. See Raymond’s Argument in that case In Wild’s Case 6 Co. 17. A Difference is taken where the Ancestor has Issue living at the Time of the Devise and w'here not that in the first Case the Issue shall take by Way of Remainder and so Plale’s Opinion seems to be 1 Vent. 229. Upon the authority of that Case. But I take the Law to be otherwise settled at this Day Nor is there any Authority to support that Opinion since Wild’s Case which too was against the Opinion of two Judges I conceive then by this Devise Mary had an Estate tail and then the absolute Property vested in Her For Slaves could never be entailed before the [56] Act of 1727. And under that Act only when annexed to Lands The constant Resolutions of this Court have been so

On the other side if Heirs of the Body here are taken as Words of Purchase and Slaves are to be considered as real Estate then the Remainder being contingent and void in Event by Mary’s leaving no Issue the Pit. is certainly well entitled. But Slaves in this Case are no more than Chattels. It is true the Act of 1705 makes Slaves a real Estate to some Purposes but not to all. They are to descend to the Heir if a Man dies intestate and a Woman is to be endowed of them But there is an express Proviso that Sales and Alienations of them may be made in the same Manner as before making the Act. There was some Difference of Opinion in the Construction of this Act which occasioned the Act of 1727. not to alter the first Act but to explain and amend it. And where a subsequent Act explains a former it cannot be said to alter it but only points out the true Construction. The words of the last Act respecting the present question are worthy observation. It recites the Difference of Opinion in constructing the first Act and then Enacts “That the said Act shall hereafter be construed and the true Intent and Meaning is hereby declared to be” No other Construction then can now be made than what is hereby declared to be the true Construction.

It is not at all material whether the Case happened before or since the Act of 1727. The Law was always the same This last Act does not alter the first as I sayed It only explains and points out the true Construction And the Words of the last Act are mighty plain (and so indeed I think are the Words of the first) that in Sales Gifts and Devises Slaves are to be regarded merely as Chatties “ A Sale Gift or Devise is to transfer the absolute Property as if such Slaves were a Chattle”

Taking then Slaves to be Chatties the Plaintif can have no Kind of Pretence. It will not be denied but that a Chattle may be given for Life with Remainder over It is not material whether the Chattle itself be given or only the Use for Life The Law makes the same Construction in both Cases viz. that the first Devisee has only the Use and the absolute Property vests in the Remainder man. The use only is given by his Will to Mary for Life and after her Death the Slaves are to fall to the Heirs of her Body If Heirs of the Body here are taken as Words of Purchase as Descriptio vel designatio personae the Daughter of Mary took the Remainder as a Person well described and then the absolute Property vested in her and the Slaves must go to her Heirs and not to the Testator’s. If they are not Words of Purchase [57] but Words of Limitation then Mary has an Estate tail given to her and such a Devise will pass the absolute Property of a Chattle

But supposing the Remainder void by Mary’s leaving no Issue at her Death In that Case I conceive the absolute Property vested in Mary For I take the Law to be very clear that if a Chattle is given to One for Life or the Use for Life (for there is no Difference) and no Remainder is limited or a Remainder that is void either in its Creation or in Event the absolute Property vests in the Devisee for Life and can never resort back again to the Representative of the Testator, Quaere de hoc.

It has been endeavoured in this Case to compare Slaves to Chattels real and many cases there are of Devises of this sort some of which have been cited To what Purpose I am still to learn Cotton & Heath 1 Ro. Abrig. 612. Devise of a Term for Life and after to the eldest issue male Adjudged the Issue male shall have it as an Executory Devise tho’ none in being at the Time of the Devise which is stronger than our Case there being here an Heir of the Body living at the Time of the Devise.

Peacock & Spooner 2 Vern. 195. is exactly this Case only stronger as it was in the Case of a Deed A Term was assigned in Trust to permit Husband and Wife and the Survivor to receive the Profits during their Lives and after their Deaths to the Use of the Heirs of the Body of the Wife Here the Pleirs of the Body took by Purchase and as a Person well described [sic].

Id. 362. Dafforn & Goodman S. P. adjudged But Webb & Webb Id. 668. the same point coming in Question adjudged the Devisee for Life had the whole Term and that Case is the same with Ours

It is not material to the Plaintif whether the Devisee for Life or the Heir of the Body has the Right for in either Case he has none and I cannot imagine Upon what Rule of Law he can pretend to any

I shall only observe further that in all the Cases upon this subject the Question is between the Heir of the Body and the Executor of the first Devisee who shall have the Remainder But there is no Instance that ever the Exor or Heir of the Testator set up a Title to such Remainder

Judgment fr Deft, per totam curiam but upon what Point I could not learn