Pettyjohn's Ex'or v. Woodroof's Ex'or

Lacy, J., delivered the opinion of the court. William Pettyjohn died in 1822, and his will was proved and recorded in Amherst county, in the same year. The testator, after providing for his widow, divided his estate equally between his six children surviving him, and his grandson, Seth Woodroof, an infant son of a deceased daughter—that is, one-seventh to each. As to the shares of his surviving children, he provided that if any of the children should die without leaving lawful issue, then the share of such child so dying should revert hack to the surviving children of the testator. And as to his infant grandson, above named, he provided that his share should he continued under the direction and management of his executors, as trustees, to his use until he should attain the age of twenty-one years, or marry-—and then provided as to his share as he had provided with reference to the shares of his, the testator’s, six children, that in case the said grandchild should die, leaving no issue of his body, then his share and its increase to he equally divided among his six children above mentioned, who survived him, or their legal representatives. The grandchild aforesaid grew to full age, received his share of the estate from the executors, and died unmarried and without issue of his body, and left a large estate, real and personal. His death occurred in the city of Lynchburg, in the year 1815, and the appellee qualified as his executor. Whereupon the [514] appellants, who are the legal representatives of the said six children of the said testator, William Pettyjohn, deceased, filed their hill in the said circuit court of Lynchburg, against the personal representative of said Seth Woodroof, who is the appellee here, claiming that the estate of Seth Woodroof was liable to them under the will of the said William Pettyjohn, for such estate as Seth Woodroof had received from his grandfather’s estate; claiming that on the death of said Seth Wood-roof, the contingency happened on which the share he took passed to the children of the testator, William Pettyjohn; that with the contingency prescribed, he held a resulting trust for them, and when he converted some of the slaves into money, and appropriated it to his own use, the remaindermen acquired the right to take the proceeds of the sales instead of the slaves themselves. On the 17th day of May, 1879, the circuit court decided that “Woodroof, upon attaining the age of twenty-one years, became entitled to his share of the estate of William Pettyjohn, absolutely, without any restriction or limitation, ■and that if this was not so, the remaindermen would be entitled to so much only of the property bequeathed to Seth Woodroof ■as remained in kind at his death,” and dismissed the bill of the plaintiffs. It was error to decree that Seth Woodroof took under the will ■of his grandfather his share of the estate in absolute property, because the will directed that if he died without issue of his body the property should pass to testator’s six children; and Seth Woodroof did die without issue of his body, so his share which he held for life passed to the said six children of testator under the said will. His attaining twenty-one years of age was the contingency upon the happening of which the executors were to deliver the property to him, before that time to be held for his use, and after that time to be held by him for life only, if he should die without issue of his body; and as he did die without issue of his body, the share bequeathed to him passed to the six children of the testator, or their legal representatives, [515] and the appellants, who are their legal representatives, are entitled under the will to demand and receive it. The estate of Seth Woodroof, the grandson, was limited in exactly the same way that the,share of each child was limited, and it is difficult to account for the strange error into which the court went. The provisions of the will are perfectly plain and unambiguous. The circuit court erred in holding, moreover, that if the remaindermen took the estate of the said life tenant at all, they only took such as remained in kind at the death of the life tenant. Such a ruling would absolutely destroy in most, or certainly very many cases, the entire interest of the remainder-men, and also defeat the provisions of the will as to the life tenant. If the estate consisted of money, as this in part did, the life tenant could make no use of it if he kept it in kind; and if he invested it, the remaindermen would make nothing because it did not remain in kind. The decree of the circuit court is equally erroneous as to the slave property. If the life tenant kept anything he received in kind until his death without issue of his body, then it passed in kind; but if he converted any of the estate to his own use, then his estate at his death is liable for the value of the property so converted at his death without issue—that is, his personal representative is liable to the remaindermen or their legal representatives, the appellants, for the sum he sold the slaves for, with interest only from the date of his death. See Tabb v. Cabell, 17 Gratt. 160; Fearne on Remainders, 414; Martin v. Green, 1 Georgia Decisions, 109; Brown v. Lambert, 33 Gratt. 364. In this last case the court said: “ Where a trustee commits a breach of trust by a sale of the trust subject without authority, the cestui que trust may at his option disaffirm the sale and pursue the property in the hands of a volunteer or a purchaser for value with notice of the trust, or he may affirm the sale and resort to the proceeds in the hands of the trustee.” This was a case like the one in hand—of the sale of a slave by the life tenant and a suit to recover the [516] value of the slave after emancipation. See also Oliver v. Piatt, 2 Howard, 333-401. The case of Moorman v. Smoot, 28 Gratt., is a similar case. This court there held the remaindermen entitled to recover the value of the slaves notwithstanding their subsequent emancipation. See also Kenny v. Kenny, 25 Gratt., and Cross v. Cross, 4 Gratt. The appellee seeks to defend the claim of appellants upon the ground of the statute of limitations. This defence is equally without avail to the appellee. The appellants had no cause of action until the death of the life tenant without issue; that occurred in ISIS, and appellants filed their hill in lStT. In less than two years after the right of action accrued the suit was brought, and so the claim of the appellants is not barred by the statute of limitations. The appellants had no right in the slaves or other property until the death of life tenant without issue. Before the happening of that contingency they cannot be held to have acquiesced in any act concerning the same, and no charge of laches, for like reason, can attach to them. Since their right of action accrued, they have been prompt and diligent in the assertion of their claims. The policy of the law concerning the speedy and absolute vesting of estates, has no application to this case. The terms of the will were within the policy of the law, and there is no aid for the appellees in that defence. Upon the whole case, we are of opinion that the decree of the circuit court aforesaid should be reversed and annulled. And the cause must be remanded to the circuit court of Lynch-burg for further proceedings to be had therein, in accordance with the foregoing views, and an account to be taken of the amount of the share received by Seth Woodroof, deceased, of his grandfather’s estate, with interest from the date of the death of said Woodroof. Such slaves as died, or were emancipated, constitute no charge on his estate, if he had not converted them to [517] his use. But his estate should be held liable for such money as he so received, and for the value of such slaves or other property as he converted during the pendency of his life tenancy.