Montgomery v. Wynns

• Citation: 20 N.C. 667
• Parties: WILLIAM M. MONTGOMERY ET AL. v. WILLIAM B. WYNNS.
• Decision Date: 31 December 1839
• Court: United States State Supreme Court of North Carolina

20 N.C. 667

WILLIAM M. MONTGOMERY ET AL.

v.WILLIAM B. WYNNS.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1839

Construction of Bequests—Statute of Limitations.

1. In a bequest of slaves to a married woman for life, and then to all the children which she may have at the time of her death, and in case "any of them should die before marriage or arrival to full age," then the share of such to the survivors of them; "and if all of them die before marriage or arrival to full age," then over to other persons; the word "or" will be construed "and," and the limitation over will not be too remote, but will take effect upon the death of the mother and of all her children under age and unmarried.

2. Wherever the statute of limitations is a bar to the recovery of one of several parties plaintiffs in an action of detinue, it will operate against all, though the others were under the disability of infancy.

3. The possession by the tenant of a particular estate in chattels is not, after the expiration of the particular estate, necessarily adverse to the remainderman, but it may be so, and that without any act or declaration of his to that effect, and therefore it is proper to be left to the jury to infer, if they so think, from the circumstances of the case, that the possession of the particular tenant, after the expiration of his estate, was adverse to the remainderman, without any precise declaration to that effect, or any act for the special purpose of making known his claim.

4. As to land, the particular tenant holding over stands towards the remainderman as a tenant towards his landlord. But the idea of such tenancy does not belong to the ownership of distinct successive estates in personal chattels, and not arising out of any contract between the parties.

5. Adverse possession consists of actual possession with an intent to hold solely for the possessor to the exclusion of others, and as no color of title is requisite on which to found the possession of personal chattels, with or without a good title, the possession will be adverse, if the party holds for himself.

THIS was an action of detinue for a slave named Cimon, tried at HERTFORD, on the last circuit, before his Honor, Judge Nash.

The plaintiffs claimed the slave in question under the following clause in the will of Elizabeth Meredith:

"I lend to my granddaughter, Mary R. Montgomery, wife of George W. Montgomery, during her natural life, my two negro girls, Venus and Nancy, and man, Cimon; and upon her death I give the same to all the children which she may leave at the time of her death; and in case any of them should die before marriage or arrival to theage of twenty-one years, then his, her or their share or shares to the survivors or survivor of them. And if all of them die before marriage or arrival to full age, then to the children of my granddaughters, Elizabeth R. Hare, Mary M. Montgomery and Julia A. Montgomery, to be equally divided per capita."

It appeared in evidence that George W. Montgomery was the husband of Mary R. Montgomery, the granddaughter of the testatrix, as stated in the will, and that the slave Cimon was placed in his possession by the testatrix upon or soon after his intermarriage; that he continued in possession of said slave up to the time of his wife's death, which happened in the spring of the year 1832; that the said Mary R. Montgomery left surviving her by her said husband three children, all of whom died in the fall of 1832 while infants, and without having been married; that after the death of his said wife, George W. Montgomery remained in possession of the said slave up to the time of the death of his last surviving child, and continued thereafter in the undisturbed possession of said slave, exercising all the control usually exercised by a master over his slave, up to the time of the death of the said George in the month of December, 1836; that in February following, one Isaac Pipkin was appointed his administrator, and took the said slave into his possession, hired him out for that year, and in the ensuing year hired him to the defendant in this action. The plaintiffs proved further by Lewis M. Cowper, one of the executors named in the will of Mrs. Meredith, and who alone qualified thereto, that upon the death of his testatrix the negro Cimon was in the possession of George W. Montgomery; that he, the executor, never interfered in any manner with his possession, nor

ever made any formal assent to the legacy, having never said anything in relation to the matter up to the time of the death of the said George; that there was a sufficiency of assets, without the said slave, to pay the debts; and that a short time before the bringing of this action, and while the defendant was in possession of the said slave, he, the witness, was called upon by the attorney of the plaintiffs to know whether he would assent to the legacy to them, and he thereupon made a formal assent. It was proved further that the present plaintiffs were the only children of Elizabeth R. Hare, Mary M. Montgomery and Julia A. Montgomery, named in the said will, at the death of the survivor of the children of Mary R. Montgomery, wife of the said George W. Montgomery. It was admitted that William M. Montgomery, one of the plaintiffs, had been of full age more than three years before the bringing of this action.

The defendant objected:

1. That the plaintiffs were not entitled to recover because the limitation to them in the will was too remote.

2. That the action should have been brought in the name of the executor.

3. That the assent to the legacy of the plaintiffs having been made by the executor when the property was in the adverse possession of the defendants, and not before, they could not sustain their action.

4. That the plaintiffs were barred by the statute...