Simmons, &c., vs. McKay, &c. and, consequently, on the death of his wife, Humphrey Simmons, as survivor, took the whole of the estate conveyed to them; and this is the important question for solution in this case. Various authorities are referred to as sustaining the respective sides of this question; but a critical review and analysis of all the cases cited will not be indulged on this occasion, and we will content ourselves by a reference to those in which the facts more nearly correspond with the one at bar, and by which it must be tested and decided. It is certainly true that Mrs. E. Simmons held the undivided half of the land by descent from her father, independently of, and before the deed from Phelps to herself and husband was executed, subject, it may be, to the vendor's lien for her part of the unpaid purchase price; but she had done no act, so far as this record shows, by which she had divested herself of her title. She did not derive her title, therefore, to her own inheritance, by the deed from Phelps. She had a right to a conveyance for one half of the land to herself from him when he received the purchase money due him, by whomsoever it may have been paid; or, at all events, no one had a right, voluntarily, to pay that debt, and, in consideration thereof, appropriate the whole of her land to himself, not even the husband; and Phelps was not authorized to convey the land to any one but the heirs of his vendee, in discharge of his obligation to convey, and by his deed he could not deprive Mrs. Simmons of her legal rights. But here it appears that Humphrey Simmons was the administrator of her father, and that he had means of the estate sufficient to pay the debt due to Phelps, after payment of all other debts of his intestate; and as it was his legal duty to pay this debt, the Simmons, &c., vs. McKay, &c. court will presume he did his duty, and paid the debt with the funds in his hands as administrator of his intestate. There is no evidence that the deed was made to Simmons and his wife by her procurement and sanction, or that she ever knew or was informed of the character or effect of the deed before her death, which occurred in about three years after the conveyance was made. Consequently, when she died, her undivided half descended to her heirs, subject to the life estate of their father, who is tenant by the curtesy. This question we regard as settled in Babbitt, &c., vs. Scroggin, &c., 1 Duvall, 272; Croan, &c., vs. Joyce, 3 Bush, 454; and in Thompson vs. Peebles' heirs and others, 6 Dana, 388. In the last named case this court held that Mrs. Thompson, who was a daughter of Nathaniel Hart, deceased, was entitled, by descent, to one ninth of a tract of land for which her father held a title bond, and of which, after his death, Thompson, her husband, obtained the possession, and then sold the land to Peebles, who procured a title thereto from Bullock, to whom the land was patented; but her suit was dismissed on other grounds. This case is essentially different from the case of Ross vs. Garrison, &c., 1 Dana, 35, and subsequent cases following it, as must be apparent. Nor can the lapse of time avail the appellees. The vendees of Humphrey Simmons are entitled to the possession during his life; and until his death the possession cannot be adverse to the claim of appellant, which event had not occurred when the suit was brought. Nor are appellees entitled to the favorable consideration of purchasers without notice; for the deed from Edwin Phelps to Simmons and wife, and to Samuel B. Simmons, &c., vs. McKay, &c. Williams, recites the manner in which and to whom the land descended on the death of his vendee, John Williams. In the aspect of the case as presented, therefore, it seems that appellants are entitled to an undivided moiety of said one hundred and eighty acres of land, the possession of which to be postponed, until the death of the life tenant; and they had a right to maintain their suit in equity, to establish their claim, and to be placed in a condition to make it available when the time should arrive at which they would be entitled to the use of the estate. Wherefore, the judgment is reversed, and the cause is remanded, with directions for further proceedings consistent with this opinion. Appellants joined in their action against Phelps, McKay, and Simmons, another and distinct cause of action against said McKay and Simmons, for one hundred and ninety-four acres of land claimed by them under the will of their grandmother, Mrs. Velinda Henson, which they allege their father, the said Humphrey Simmons, sold and conveyed to said McKay, and which they allege he now holds wrongfully from them. By consent, both causes of action were prepared and heard as one suit; and plaintiff's petition having been dismissed as to this tract also, they seek a reversal of that part of the judgment also. The title to this tract of land was once in Humphrey Simmons, which he conveyed to his mother, Mrs. Henson, and after her death, he conveyed it to McKay, he being her only child and heir at law. By her will, Mrs. Henson devised all her estate to her grandchildren, the children of her said son and his wife Simmons, &c., vs. McKay, &c. Elizabeth, and appointed her son trustee for them and executor of her will, with power and authority, if he should deem it to the interest of her said devisees, or any one of them, to sell any or all of said estate, and reinvest the proceeds in other estate, to be held by said devisees in equal portions. The proceeds and profits of the estate left by her, or of such as might be purchased with the price for which it was sold, were to be applied to the proper support and education of said devisees; and as they arrived at twenty-one years of age or married, respectively, they were to have their equal portions of said estate. The original will bears date February, 1842. In May, 1847, she made a codicil, in which she restricted the power of her devisees and the trustee, in making sale of her slaves, that they were not to be sold out of the family. And on the 29th of May, 1849, she made another codicil, by which she substituted R. H. Field and Samuel B. Williams, or either of them who would act, as trustee to her devisees and executor of her will, in place of her said son, and revoked all powers conferred on him in her will and former codicil. Appellee McKay was a subscribing witness to the will and both the codicils. After the death of the testatrix, her will and the codicils were offered to the proper court for probate; and on the 15th of November, 1852, the will and codicil of date May, 1847, were ordered to record by the court as the true last will and testament of Mrs. Velinda Henson; and the codicil of May, 1849, was rejected upon the evidence of Thompson and McKay, the subscribing witnesses thereto, for want of disposing mind of testatrix at the time, and which judgment is unreversed. McKay, in his first answer, admitted that Mrs. Henson disposed of her estate by her will, a copy of which he VOL. V-3 Simmons, &c., vs. McKay, &c. refers to, to show to whom she devised it, and that she owned the one hundred and ninety-four acres of land claimed in the petition, which passed by her will, and by the provisions of which, as he alleges, Humphrey Simmons was empowered to, and directed, in the exercise of his better judgment, to sell or dispose of all, or any part of the estate devised; and that he did, in the exercise of that power, for its full value, sell and convey said land to him; and he relies on said will, and the power conferred on said Simmons therein, and his sale and conveyance of said land to him, as a complete bar to plaintiffs' right. Although Simmons did not qualify as executor of the will, still we apprehend his power as the trustee of his children was ample, and he might under it sell and pass to a purchaser an indefeasible title, at least, while the judgment of the county court rejecting the last codicil remained unreversed; but in an amended answer McKay abandoned that ground of defense, and asserts that the statements in his original answer, that the one hundred and ninety-four acres of land were conveyed to him by Humphrey Simmons under the authority given him in the will of his mother, "is untrue and wholly false;" that he never qualified or acted as executor, administrator, or trustee under said will; nor did he, in any wise, act or exercise any authority in the settlement of the estate under the will; that he, said McKay, does not hold, nor claim to hold, the title to the land under said will, nor through Velinda Henson; and the averments in the original answer that he so held were untrue, and made by mistake. He alleges that he purchased the land of said Humphrey Simmons for a valuable consideration, which has been paid, and claims to hold the title from him directly, who had the title, and conveyed the same to him. He relies on lapse of time |