Van Vacter v. M'Willie

Fisher, J., delivered the opinion of the court. This was a petition filed in the Probate Court of Madison county, to compel the appellee, as executor of the last will and testament of Ann M‘Willie, to pay over to the petitioners a certain legacy, to which they alleged themselves entitled under said will. The clause of the will is as follows: — “I give to my grand-daughter, Ann Jane M‘Cay, during her natural life, and after her death, to the issue of her body, who shall be living, the following negroes,” (naming them.) After naming the slaves, &c., comes the following provision: — “ the legal estate to said negroes to vest in my son, Abram A., as trustee, as in case of my daughters.” [567] To this petition there was a demurrer, which was sustained by the court below, on the ground that the legal title to the property sought to be recovered, was in the executor. It may be conceded, for the sake of the argument, that the naked legal title was in the executor, as trustee; but it is manifest, at the same time, that the will imposed upon him no duty, the performance of which made it necessary for him to retain the possession of the property. The whole beneficial interest was intended to be conferred upon the legatee, and this carried with it the right of possession. Decree reversed, demurrer overruled, and cause remanded.