Jabez Weeks, the elder, by his will, executed on 23 February, 1828, bequeathed as follows:
"Item. I give and bequeath unto my grandson, William Bell, and my granddaughter, Caroline Bell, one negro girl named Sophy, to them, their heirs and assigns forever; and if they should die without an heir or heirs lawfully begotten, the said negro girl and her increase that may come hereafter to return to my children."
The grandchildren, William and Caroline, above named, were the only issue of the testator's daughter, Vashti, by her husband, Abner S. Bell; and she, Vashti, died before the making of the will. The testator *Page 77 died in August or September, 1828, leaving four sons and four daughters surviving him, namely: Elijah, Jesse, Isaac, and Jabez, and Elizabeth, Rebecca, Sarah, and Mary, who were all born before the making of the will. Elijah was appointed the executor of the will, and proved it in October, 1828. Upon the marriage of Bell with his first wife, Vashti, in 1824, the testator put into his possession the girl Sophy and she remained there when the testator made his will and died. After the death of his first wife, Abner S. Bell, in the testator's lifetime, married the testator's daughter, Elizabeth, who died, as also did the daughter Rebecca, during the lives of William and Caroline Bell — the latter of whom, Caroline, died on 4 October, 1829, and the former, William, on 17 January, 1842. In March, 1830, Abner S. Bell procured himself to be appointed the guardian of his son William. Elijah Weeks, the son and executor of the testator, took administration of the estates of his deceased sisters, Elizabeth and Rebecca.
The bill was filed in March, 1843, against Elijah Weeks and (113) Abner S. Bell, by the other children of the testator or the executors of those of them who have died. It states that the woman Sophy has issue of a large number of children, and that all of them are in possession of the defendant Abner S. Bell, who refuses to produce and deliver them up, alleging that he is entitled, in right of his late wife, Elizabeth, to a share thereof as tenant in common with the other children of the testator. The prayer is for a discovery of the number and names of the negroes and for their production and partition into eight shares, one for each of the testator's children or the executors or administrators of such of them as are dead, and, if partition cannot be made specifically, that a sale may be decreed for that purpose.
The defendant Elijah Weeks answers that he assented to the legacy of the girl Sophy, and delivered her to the defendant Abner S. Bell, as the guardian of his two children, shortly after the death of the testator; and that after the death of Caroline and William, he applied to the defendant Abner S. Bell to surrender the negroes, that they might be divided, but "he denied the right of the plaintiff and this defendant to any part or share of said slaves, and refused to surrender them." This defendant submits that only such of the children of the testator as survived William and Caroline Bell are entitled to the negroes, and he insists that under the will they do belong to such survivors, and he assents to a sale for the purpose of making a division between them.
The answer of Bell, after admitting the will, death of the testator, the number and names of the children and their deaths, as before stated, sets forth "that in 1824, in the lifetime of the said Jabez Weeks, the elder, and of Vashti, who was then the wife of this defendant, and a daughter of said Jabez, he, this defendant, became possessed (114) *Page 78 of the said negro Sophy, aged about 17 years, and that he has ever since had said negro in his possession, claiming her and her increase adversely to the world, and particularly to the said Jabez, the testator, and the said Caroline and William, and the plaintiffs; and that in or about the year 1830 the said Elijah, the executor of said Jabez, demanded the said negro Sophy and her increase from this defendant, who refused to deliver them to him, claiming the title to be in him, this defendant."
The answer then sets forth the names and ages of the negroes, and admits that the defendant refused to give them up to the complainants; but he says he so refused because he denied any title to them in any of the complainants, or that he was tenant in common with them. The answer then insists that the slave Sophy vested absolutely in William and Caroline Bell under their grandfather's will, and that the limitation over is void; and further, if that be not so, that then the title of the remaindermen is a legal title upon which there is a complete remedy at law against the defendant, if he be a wrongdoer. The defendant further insists upon the statute of limitations.
Upon replication to the answers, evidence was taken, that about the beginning of 1829 or 1830, Elijah Weeks, as the executor of his father, applied to the defendant Bell for the negroes, for the purpose of hiring them out for the benefit of the children, William and Caroline, and that Bell became displeased and refused to give them up, saying that he was as capable of being the guardian of his children as Weeks was, and that after Bell was appointed the guardian of his son (in March, 1830) he put up the negroes for hire, and bid them off himself two or three years. There is no doubt upon the construction of the will. It is clear that, before the act of 1827, a limitation over after a dying without an heir or heirs of the body is too remote; and it is equally clear that by that act such a limitation is made good by construing it to be a limitation to take effect at the time of the death of the person without having an heir living at the time of the death. The question upon this point is, then, whether the act of 1827 operates upon this will or not. The session of the General Assembly of that year began on 19 November, 1827; but this act was ratified and signed by the speakers of the two houses on 7 January, 1828, and has a proviso, "that the rule of construction contained in this act shall not extend to any deed or will executed before 15 January next." The inquiry is, whether the act was in force from 15 January, 1828, or 1829; and that depends upon the period to which the word next relates. It means "next after"; but "next *Page 79 after" what? The adjective next, no doubt, agrees with "January," and not with the "day" of that month: meaning "next January," and not "the next 15th day of January." If, therefore, next relates to that point of time when the act was finally passed, it would not be in force until 15 January, 1829. But we believe that the rule of construction is too inveterate to be resisted, that unless an act refers to its ratification as the time from which it speaks, it must be considered as speaking by relation from the beginning of the session of the Legislature at which it passes, in the same manner that a judgment relates to the first day of the term. By the act of 1799 the laws are to be in force only after thirty days from the end of the session, unless the commencement of their operation be in the acts themselves otherwise directed. Here that has been done, and the difficulty is in fixing the time meant in the statute itself. Now, if the words had been that the act should take effect "from and after the passing of the act," unquestionably the relation (116) would have been to the first day of the session. Latless v.Holmes, 4 Term, 660. So where an act laid a duty on rice "hereafter to be exported," it was held by the opinion of the twelve judges thathereafter referred to the beginning of the session, and that a duty was due on rice exported after the session began, but before the act was in fact passed. Panter's case, 6 Bro. P. C., 553. Certainly, that was a remarkable instance of the application of the principle, producing manifest injustice. In the case before us, happily, it produces no injustice; for doubtless it effects the real intention of this testator, and is a proper application of a beneficent rule of construction which the Legislature found necessary, to prevent the frustrating of the intentions of testators upon technical grounds. The case of Brown v. Brown,25 N.C. 134, was cited to the bar to show that the Court had already construed the act of 1827 as operating on wills made after 15 January, 1828. But that is giving to the remark in that case more weight than it ought to have; for when the opinion was given the original act was not looked at, but its contents were taken upon trust from the Rev. St., ch. 43, sec. 7. That could not use the term "next," but necessarily designated the particular day from which instruments had been operated on by the act of 1827; and that day is 15 January, 1828. For, undoubtedly, the Legislature of 1836 did not mean to carry back the rule of construction, by virtue of the law of that year, to a year, to a year earlier than it had been fixed by the law of 1827; but the day fixed in 1828 is that which was understood as having been intended in 1827. So that, although there has really been heretofore no judicial, there has been a legislative, exposition of the act of 1827, which is entitled to the highest respect. Consequently the Court must now hold, in conformity with the general and ancient principle and with the particular sense given to the act of 1827 *Page 80 (117) by the Legislature, that "the 15th day of January next" meant "next after" the commencement of the session in November, 1827; and therefore that the limitation over to the testator's children is good.
There is no difficulty as to the persons who take under the limitation to the testator's children. There were eight children living when the testator made his will, and when he died, and no other was afterwards born. As the limitation is not to "surviving children," but to "my children," all of the children took immediate interests, that were transmissible to executors. Devisene v. Mullo, 1 Bro. C. C., 530; Attorney-General v.Crispin, id., 388; Lewis v. Smith, 23 N.C. 145.
The defense, founded upon an adverse possession and the statute of limitations, would be unavailing, and the plaintiffs would have a decree were there no other more serious objection to the bill. The defendant artfully avoids stating from whom or upon what terms he acquired the possession of the woman Sophy — the answer saying merely that in the lifetime of Jabez Weeks the defendant became possessed "of the slave and has had possession ever since, claiming her as his own, and adversely to the testator, the defendant's children, the plaintiffs, and all the world." But it is charged in the bill, and established by the proofs, that the slave belonged to the testator, and that shortly after the marriage of the defendant with his first wife, about 1824, the testator sent the negro to the defendant. It is clear, then, that the defendant held her as a bailee, either upon an express loan or a gift by parol from his father-in-law; and therefore his possession was not adverse and could not set the statute in motion. Collier v. Poe, 16 N.C. 55;Palmer v. Faucett, 13 N.C. 240; Green v. Harris, 25 N.C. 210. That was the state of things when the testator died. There is then an attempt to bring the case within the rule of Martin v. Harden,19 N.C. 504, by alleging that after the death of the testator his executor, Elijah Weeks, demanded the slaves then in esse (118) from the defendant, and that he refused to deliver them, "claiming the title to be in himself." But the defendant has not at all established such a demand and refusal, as he pretends. On the contrary, the plaintiffs have proved to the satisfaction of the Court that the defendant did not set up a title in himself, but impliedly disavowed it; for when the executor applied for the negroes, he told the defendant that his object was to hire them out for the benefit of the defendant's infant children, to whom they had been bequeathed — which was in itself an assent to the legacy; and the defendant, so far from setting up a claim of his own and refusing for that reason to surrender them, distinctly puts his refusal upon the ground that he would himself be the guardian of his children, as he was as fit for that office as Weeks was. Accordingly, soon afterwards *Page 81 he became the guardian of his son, the daughter being then dead; and he hired out the negroes for two or three years. It is clear that the hiring was in the character of guardian, as he bid them in himself. The statute of limitations, therefore, does not affect the case, as the defendant's possession was never adverse, but that either of bailee or guardian, up to the death of the son, which happened about a year before the bill was filed.
Another objection, however, is taken in Bell's answer, which seems to be fatal to the bill. It is, that the title of the other parties is legal, upon which they can have complete remedy at law. The bill purports to be founded on a tenancy in common of the slaves, and a right to have a partition of them. Upon that supposed state of the case the answer of Bell insists that he was in the adverse possession at the beginning of the suit, and therefore that the plaintiffs must establish their title at law before they can have the decree they seek here. But, restricting the objection to that single point, it does not seem very formidable. It is true that is the rule in respect to land. But the reason is that an ejectment may be maintained by one tenant in (119) common against another, upon an actual ouster, or upon an exclusive possession by one, who denies all right in the other and claims the whole for himself. The court of equity, therefore, requires the plaintiff to recover his share in ejectment or otherwise get into possession, before there will be a decree for partition. Garrett v.White, 37 N.C. 131. But there cannot be a like rule with respect to personal things; for joint tenants or tenants in common cannot maintain detinue against each other for a share of such a chattel, nor even have trover or trespass, except for the destruction of the thing or its disposition in such way that it cannot be had for the purpose of partition.Lucas v. Wasson, 14 N.C. 398. Of necessity, therefore, when the law gives the power to one of the owners to compel partition of slaves, the court to which the application is made must decide the title, or have it decided under its direction. Then as to the coming into the court of equity for that purpose, it is to be observed that partition is one of the subjects of settled equitable jurisdiction, although the estate be legal and the partition may be made upon writ at law. It is assumed upon the grounds of the more convenient and perfect relief in the court of equity, by reason of the power of the court to enforce the discovery and production of title papers, and an account for profits and outlays, and apportioning the expenses of the partition and charging money for equality of partition. The jurisdiction, therefore, would necessarily have arisen upon the passing of the act of 1829, giving the right of partition of slaves between two or more owners. Indeed, before that act it had been exercised, *Page 82 for it was upon that ground that the bill was sustained in Jonesv. Zollicoffer, 4 N.C. 645; s. c., 9 N.C. 623, where the defendant held the negro under a conveyance from three of the remaindermen.
In the present case, however, the defendant is not a tenant in (120) common with the other parties, but they have the whole legal estate and may therefore recover the negroes from Bell at law, and have no ground for coming into this Court against him. We suppose he was thought to be one of the tenants in common in virtue of his marriage with the testator's daughter Elizabeth, who survived her father, and was one of those entitled in remainder. That would have been the case had the daughter Elizabeth survived either of the grandchildren, William and Caroline, so that the estate limited over would, either in whole or in part, have fallen into possession during the coverture. But it is stated in both the bill and the answers that Mrs. Bell died before either of the children, so that, at her death, her interest was still in expectancy. Such an interest of the wife did not vest in the husband during the marriage, nor survive to him at law, but goes to her administrator for payment of debts in the first place, and the surplus, if any, for the husband, under the statute of distributions; for, although the husband may assign or release the wife's choses in action, or convey her expectant legal interest in personal chattels (Burnett v. Roberts, 15 N.C. 81, and Knight v.Leake, 19 N.C. 133), yet if he do not assign or convey them during the coverture, they undoubtedly survive to her, or to her representative.
This was formerly much controverted in this State. It was once decided otherwise, in Lewis v. Hines, 2 N.C. 278. But the contrary was held soon afterwards in divers instances, and has continued to be held up to a very recent period, without any contradiction. The first case on the subject was that of Whitbie v. Frazer, 2 N.C. 275; and then, after Lewis v. Hines, followed in quick succession Neale v.Haddock, 3 N.C. 183, and Blount v. Haddock, 1 N.C. 295;McCallop v. Blount, 1 N.C. 314; Johnston v. Pasteur,id., 582, and Norfleet v. Harris, id., 627. Those cases seem to have settled the law in the estimation of the profession; for we do not find that the point was again raised until the late case of (121) McBride v. Choate, 37 N.C. 610, where it was contended that a vested remainder of the wife, after a life estate in a slave, belonged to the husband and not the wife. But the Court held that it did not vest in the husband and could not be bequeathed by him, but, notwithstanding his bequest, survived to the wife, and there was a decree accordingly. What was said in the previous case of Hearnev. Kevan, 37 N.C. 34, calculated to throw a doubt on this question, was an obiter dictum and passed without observation. The point did *Page 83 not arise in the case, for no representative of the wife was before the court, and it was perfectly immaterial to the plaintiff whether his share belonged to her administrator or her husband; as in neither case had they a right to interfere to prevent a sale of that undivided share by a creditor of the husband whose property the negroes were in equity, except as against the wife's creditors. That the case was considered in that light by a majority of the Court is certain; and it is so seen in the subsequent case of McBride v. Choate, in which the point came directly in judgment. In the present case Mrs. Bell's interest belongs to her administrator, Elijah Weeks, who is, indeed, made a party defendant.
But he has not possession of any one of the slaves, and, like the plaintiffs, he claims them from the other defendant, Bell. The case then is, that five tenants in common of slaves sue three others for partition of slaves, not held by either one of them, but held by a third person, who is also made a party and claims to hold for himself, and had refused to surrender the slaves before this suit was brought. As between that person and the other parties, who are cotenants, the controversy is purely legal, and they ought to sue him at law, and cannot transfer the jurisdiction to the court of equity by making one or more of the tenants defendants with him and asking for a partition of the slaves. With the partition the party who holds the negroes has nothing to do; (122) and the owners must recover the negroes from him before they can divide them among themselves. The bill must, therefore, be dismissed with costs to the defendant Bell.
PER CURIAM. Bill dismissed.
Cited: Dean v. King, 35 N.C. 24; Sanderlin v. Deford, 47 N.C. 77;Hamlet v. Taylor, 50 N.C. 39; Arrington v. Yarborough, 54 N.C. 75;Allen v. Allen, 55 N.C. 238; Clifton v. Wynne, 81 N.C. 162 (but see Code, sec. 2862); Wooten v. Wooten, 123 N.C. 223; Sain v. Baker,128 N.C. 258.