Gibson v. Land.

(Elizabeth) took a vested, not a contingent remainder. 1 Fearne on Remainders, p. 6, notes; Sheffield v. Orrery; 3 Atk. 283, and authorities there cited. The gift of Sarah was, in legal contemplation, a gift of her increase, except as to those children of which a different disposition is made. Strong's Executor v. Brewer, 17 Ala. 706; Wilks v. Greer, 14 ib. 437.

RICE, J.-In Chapman, Governor &c., v. Spence et al., 22 Ala. 588, the writ showed that Reuben Chapman in his individual capacity was the plaintiff in it; but the declaration showed that "the Governor of the State of Alabama" was the plaintiff in it it was held that such a writ would not support such a declaration, and that the declaration was properly stricken from the file, on a motion duly made to that effect.

The principle recognized in that case is, that a writ sued out in favor of one person will not support a declaration in favor of another person. The principle is sound, but it has no application to the present case; for here, James Land is the plaintiff in the writ and the plaintiff in the declaration. The words "as trustee for his wife, Elizabeth Land," which follow his name in the writ and in the commencement of the declaration, may well be treated as mere surplusage, or descriptio persona.-Arrington v. Hair, 19 Ala. 243; Tate v. Shackelford, 24 ib. 510; Aguttar v. Moses, 2 Stark. Rep. 499; 1 Saund. Pl. & Ev. 260; Innerarity v. Kennedy, 2 Stew. R. 156; Biddle v. Wilkins, 1 Peters, 693.

Where the same person is the plaintiff in the writ and in the declaration, neither a variance between the writ and declaration, nor a variance between the endorsement on the writ and the declaration, can be reached by craving oyer of the writ and the endorsement thereon and demurring to the declaration. Summerlin v. Dowdle, 24 Ala. 428; Curry v. Paine, 3 ib. 154; Sexton v. Rone, 7 ib. 824.

Each count of the declaration is good, and the counts are properly joined. The plaintiff in the writ is the plaintiff in the declaration; and there is no error in overruling the motion "to strike the plaintiff's declaration from the file", nor in overruling the demurrer to the declaration.

Gibson v. Land.

A demurrer to evidence is an admission of its competency, and is, therefore, a waiver of all exceptions previously taken to its competency.-Foster v. McDonald, 5 Ala. 376. A for tiori, an agreement by the parties in an action of detinue for a slave, entered into after the plaintiff has submitted all his evidence to the jury, that the value of the slave is a certain specified sum, that the damages for the detention amount to a certain specified sum, that the jury be discharged, and “that if, in the opinion of the court, the law upon the foregoing facts was with the plaintiff, a judgment should go in his fa vor, for said negro, and damages and costs of suit, as on jury and verdict, and that if the law was with the defendant, judgment should go in her favor",-is a waiver of all objec tions and exceptions which had been taken in relation to the competency or admissibility of the evidence, prior to the time when said agreement was made. By such an agreement, the court is bound to take the facts which the evidence tended to prove, as the admitted facts of the case; and the only question not waived by such agreement is, whether, upon the facts of the case thus agreed on by the parties, the law is with the plaintiff, or with the defendant.

The material facts thus agreed on in this case, may be thus stated Nathan Saunders, of South Carolina, made his will in 1793, and died. In 1794, his will was admitted to probate, in that State. Its material provisions are in the following words, to-wit:-

"Item, I lend unto my beloved wife, Mary Saunders, during her natural life or widowhood, all my land, also one negro girl called Sarah, ten head of cattle, four head of horses, also my stock of hogs, household and kitchen furniture, for the support of her and children. Item, my will and desire is, at the death or marriage of my wife, that my son Bartlett may have my land, to him, his heirs, and assigns forever. Item, I likewise desire, if my wife marries, that my eldest daughter may have the negro girl; and if the negro should have children, my desire is, that my second daughter may have her first child, likewise my third and last daughter the said girl's second child. Likewise, my desire is, after my just debts is paid, and at the decease or marriage of my wife, that all the remaining part of my estate be equally divided between my

Gibson v. Land.

four children, or the survivors of them, to them, their heirs, and assigns forever."

Elizabeth was the eldest daughter of the testator. She married the plaintiff (James Land) in 1808 or 1810, in South Carolina, where they then resided, and she is still the wife of the plaintiff. Not long after the death of the testator, all the debts of the estate were paid, and the negro girl Sarah went into the possession of his widow, under the will, and, whilst in her possession, gave birth to several children, among whom was the negro girl Eve, who is sued for in this action, and who is the fifth child of Sarah. The girl Eve was horn about the year 1815, and continued in the possession of said widow in South Carolina many years. The assent of the executor to the bequest of Sarah. before the plaintiff was married, is sufficiently proved, and is not questioned. The widow married in 1847, and died in 1851, before this suit was commenced. Her last husband died between 1847 and 1851. The appellant, at the commencement of this suit, had possession of Eve (the negro here sued for), and "claimed her under a purchase made from the said Mary Saunders while the negro was in her possession." The value of Eve and of her hire was agreed on by the parties.

The cardinal rule in construing wills requires the court to collect the intention of the testator from the whole will, and to give effect to such intention, if consistent with law, although contrary to the express words of a particular clause; and in searching after this intention, it is just to notice whether or not the instrument, on its face, bears evidence that it was drawn by a person skilled in language and law.-Saunders v. Saunders, 20 Ala. 710; Hamner v. Smith, 22 ib. 433. "It sometimes happens, that a remainder is limited in words. which seem to import a contingency, though in fact they mean no more than would have been implied without them, or do not amount to a condition precedent, but only denote the time when the remainder is to vest in possession."-Fearne on Remainders, pp. 241-242; Bromfield v. Crowder, 1 Bos. & Pul. New Rep. 313; Roe v. Briggs, 16 East's R. 406; Goodtitle v. Whitby, 1 Burr. R. 228; Boraston's case, 3 Coke, 19; Massey v. Hudson, 2 Meriv. R. 130.

In Fearne on Remainders, p. 6, note (d), the law which we

Gibson v. Land.

think precisely applicable to the will shown in the present case is thus laid down: "A case frequently occurs in practice, where a testator devises to his wife for her life, if she shall so long continue his widow; and in case she marry, to A. in fee':-apparently, in this case, there is ground to contend that A.'s remainder is contingent, as the estate of the wife may end in one of two ways, her death or her marriage, and the remainder to A. is expressed to take effect only on her marriage; but the courts have determined that it is merely an inaccuracy of expression, and that the intention of the testator is, that A. shall take in either event. They have, therefore, decided that A. shall take equally on the second marriage of the wife, and on her death without being married a second time.-Luxford v. Cheeke, 3 Lev. 125; Raym. 427, and Lady Ann Fry's case, 1 Vent. 199."-Bowling v. Dobyns, 5 Dana's Rep. 442; 1 Cruise's Dig. 188.

The assent of the executor to the particular estate, is an assent to the estate in remainder. The property in the personal chattel being bequeathed in fractional interests in succession, at periods which must arrive, the interests of the first and subsequent taker will vest together.-Toller on Executors, 309; 1 Roper on Legacies, 394; McWilliams v. Ramsay, 23 Ala. 813; Finley v. Hunter, 2 Strob. Eq. Rep. 208.

Before the assent of an executor to a bequest of such a chattel, the interest of the legatee in it is equitable and inchoate.— Vanderveer v. Alston, 16 Ala. 494; 2 Williams on Executors, 844-845; Thomas v. White. 3 Litt. R. 180; Woodgard v. Threlkeld, 1 Marsh. R. 10. But the assent of the execu tor, when given, has relation to the time of the testator's death, and renders the interest of the legatee a complete legal interest.-2 Williams on Executors, 844, 849, 850; Toller on Executors, 306; Howell v. Howell, 3 Iredell's Eq. Rep. 522.

In the present case, the estate of the wife, as the only remainder-man, in the slave Sarah (a personal chattel), was, at the time of the marriage, vested, complete, and legal. The actual possession was where, according to law, it should have been-that is, with the tenant of the particular estate. Af terwards, and during the continuance of this possession, Sarah gave birth to Eve, and both these slaves continued for several years afterwards with the tenant of the particular es

Gibson v. Land.

tate. If the possession of the tenant of the particular estate ever was adverse to the remainder-man, it certainly did not become so until long after the birth of Eve. The particular estate had determined before this suit was commenced, and the wife of the plaintiff is still living. Upon the facts here shown, my opinion is, that the marriage vested the aforesaid. interest of the wife in the husband, and that, as soon as the particular estate determined, he was entitled to the immedi ate possession, and to maintain detinue to recover the slave Eve.-1 Bright on Hus. & Wife, 34; 2 ib. (Appendix), 441; Macqueen on Hus. & Wife, 18, 19 and 46; Magee v. Toland, 8 Porter's R. 36; Pitts v. Curtis, 4 Ala. 350; Broome v. King, 10 ib. 819; Machen v. Machen, 15 ib. 373; Lenoir v. Rainey, 15 ib. 667; McDaniel v. Whitman, 16 ib. 343; Whitaker v. Whitaker, 1 Dev. R. 310; Granbury v. Mhoon, 1 ib. 456; Pettijohn v. Beasley, 4 ib. 512; Miller v. Bingham, 1 Iredell's Eq. R. 423; Daniel v. Daniel, 2 Rich. Eq. R. 118; Ordinary v. Geiger, 1 Brevard's R. 484; Brooks v. Penn, 2 Strob. Eq. Rep. 114; Dade v. Alexander, 1 Wash. R. 30; Banks v. Marksberry, 3 Litt. R. 275; Morrow v. Whiteside, 10 B. Monroe, 412; Wilks v. Greer, 14 Ala. 437; Strong v. Brewer, 17 ib. 706; Pollard v. Merrill, 15 ib. 174.

Whether, in case the husband should die before he obtains. actual possession of the slave sued for, leaving his wife surviving, she would or would not be entitled to the slave, is a question not necessarily calling for a decision in this case; and upon that question I do not consider myself committed by the reasoning or decision in Mason v. McNeill, 23 Ala. 201.

Although there is a difference in the mode of reaching the conclusion, we all agree that there is no error in the record, and that the judgment must be affirmed.

CHILTON, C. J.-I agree in the conclusion attained by my brother Rice, but not in some of his reasons.

When the executor delivered the property to Mary Saunders, the widow of the testator, and the party entitled under the will of Nathan Saunders to a life interest, he assented to the legacy, and divested himself of all property, so that no further assent was required to vest the interest in the party entitled to the quasi remainder.