Duncan v. Wright

11 Va. 542

• Court: Supreme Court of Virginia
• Decided: February 15, 1841
• Status: Published

Opinion

TUCKER, P.

The only question is as to the date from which the statute of limitations began to run. The question of title does not arise upon the record. As the case is presented to us, we must take it that mrs. Camden or her husband had no power to-sell the slaves, and that upon the sale her title ceased, and a right accrued to the executors to take them into possession *during her life. It still r.emains to decide, whether during her life the legal title devolved upon her children by the bequest, or whether the executors were trustees for them. And I am of opinion, that the children were to take nothing until after the decease of mrs. Camden, at which time the title devolved upon them, and not till then. No trust of the profits between the date of the sale and mrs. Camden’s death is declared in their favour. It is not necessary to decide, w'hether the profits went- to her, or into the residuum of the testator’s estate: they could not, under the terms of this will, pass to her children. The children, then, had no title until their mother’s death, and the statute consequently was not a bar to this action, brought within five years after her death. The judgment must, of course, be reversed, the verdict set aside, and a new trial had, upon which the instruction given by the court is not to be repeated.

The other judges concurred. Judgment reversed, and cause remanded for a new trial.