Robinson vs. McDonald.

By the Court-WARNER, J. delivering the opinion.

This was an action of Trover, instituted by James McDonald, the defendant in error, as the executor of William McDonald, against Bolling H. Robinson, the plaintiff in error, to recover the possession of a negro slave, by the name of Bob. On the trial in the Court below there was a verdict found for the plaintiff for the value of the slave, and his hire. The defendant below made a motion for a new trial on several grounds, which were all overruled by the Court. It appears, from the record, the plaintiff below claimed title to the negro, under the last will and testament of William McDonald, his testator, for the purpose of distributing the same to John, James, and Lovett McDonald, who, it is contended, are entitled to the property under the will. The first ground taken for new trial in the Court below was, that the Court charged the jury, "they were bound to consider the will as conveying to Robert McDonald a life estate, with remainder to John, James, and Lovett McDonald, the parties therein named."

The third ground taken for new trial in the rule was, that the Court below erred in charging the jury "that a demand and refusal was not indispensable to the right of the plaintiff to recover; that if the defendant had come into the possession of the negro man Bob by the delivery of the plaintiff, or as bailee, or by finding that a demand and refusal would have been necessary to be proved; but, coming into the possession by purchase at Sheriff's sale, and using the property as his own, receiving hire, and that conversion being proved, the plaintiff would be entitled to recover; the defendant's counsel insisting upon the Court to charge the jury, that the defendant not having come tortively into the possession of the negro man, a demand and refusal was indispensable to the plaintiff's right of recovery."

The fourth ground taken for new trial in the Court below was, "that the Court erred in refusing to charge the jury, that the cause of action having occurred since the death of the testator or donor, it was necessary for the plaintiff suing, in his character of executor, to have introduced his letters testamentary as a part of his title to make it complete, he having neglected to do so, was not entitled to recover; the Court having decided that, suing as executor, the defendant should have filed his plea in abatement at the first term of the Court, and craved oyer; that not being done, the

Robinson vs. McDonald.

Court at this time would not require the production of the letters testamentary."

The second ground of error taken in the rule for new trial, was not insisted on in the argument before this Court, and therefore it is not considered.

The overruling the three grounds taken for new trial by the Court below, is now assigned for error in this Court.

We will first dispose of the question made as to the con- [2.] version of the property.

In Liptrot vs. Holmes, 1 Kelly's R. 381, this question was considered by us, and the rule established. In that case we said, "the action of trover being founded on a conjunct right of property and possession, any act of the defendant which negatives or is inconsistent with such right, amounts in law to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in question by the defendant; it is not necessary that it should be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion, or in defiance of the plaintiff's right? if he does, that is in law a conversion, be it for his own or another person's use. But it is said, where a party comes lawfully into the possession of property, there must be a demand and refusal proved. This is undoubtedly true where the defendant finds the property, or where he gets possession of it by the consent of the plaintiff-the possession must be lawful as against the plaintiff. Demand and refusal is only evidence of a conversion. But, where the defendant gets possession of property as administrator in right of his intestate, or where he gets possession of it as a purchaser at Sheriff's sale, under an execution against some third person, and uses and exercises dominion over the property as his own, it is a conversion as against the rights of the plaintiff, who is a stranger to the title under which the defendant claims."

From the evidence as disclosed by the record, it appears that Robinson purchased the negro at Sheriff's sale as the property of Robert McDonald, and that he exercised dominion and control over him while in his possession, which in our judgment was a conversion in law, as against the rights of the plaintiff; and evidence of demand and refusal was not necessary to have been proved on the part of the plaintiff to maintain his action; therefore, there was no error in the charge of the Court below to the jury on this branch of the case.

We are of the opinion the court did err in its judgment, in [1.]

Robinson vs. McDonald.

deciding that it was not necessary to introduce the plaintiff's letters .testamentary as evidence to the jnry. The plaintiff, in this case, declares on his own possession, and alleges the conversion since the testator's death. In 2 Williams on Executors, 1150, the rule is stated to be," where the plaintiff declares on a cause of action arising in his own time, and makes profert of the letters of administration, and the defendant pleads the general issue, such plea does not admit the plaintiff's title as executor or administrator, and it must be proved." Where, however, the executor or administrator declares on the possession of his testator, or intestate, and alleges the conversion to have been in the lifetime of the decedent, his title as such executor or administrator, need not be established at the trial. Idem 1158. In the one case the executor or administrator claims the possession of the property in his own right, and alleges the defendant converted it as against his title; and, therefore, it is incumbent on him to show his letters testamentary, or of administration, as part of his title, in all cases where the executor or administrator has not had the actual possession of the property. 2 Greenleaf's Ev. 272, sec. 338; 2 Leigh's Nisi Prius, 973; 2 Saunders R. 47, note k; Browning vs. Huff, 2 Bailey's R. 174. When the defendant denies the character in which the plaintiff sues, he should plead in abatement, as stated by the Court below; but here the plaintiff claims the constructive possession of the property by virtue of his title as executor, and to entitle him to the actual possession of it he must prove his title on the trial. Styling himself executor in his declaration, does not furnish plenary proof that he is such, when he alleges a conversion as against his own title by the defendant. To make out his case he must show title in his testator, and then show either his testamentary letters, or a certified copy of the will appointing him executor, probate thereof, and his qualification as such executor.

[3.] The testator, in the first clause of his will, gives to his son Robert McDonald, the following negroes: "Bob, Kate, and her six children, with certain real estate, at his mother's death; and, if Robert should live and die single, without a lawful heir of his body, the above property is to be equally divided between my three sons, James, John, and Lovett, to have and to hold the aforesaid property, and every part thereof, from me and my heirs, and every other person whatsoever, unto the said Robert McDonald, his heirs and assigns, forever."

This testamentary paper is dated Sth March, 1837, and was

Robinson vs. Mc Donald.

proved and admitted to record in the Court of Ordinary of Baker County, at the May Term of the Court, 1844. On the trial of the cause the Court charged the jury, "that they were bound to consider the said instrument as conveying to Robert McDonald a life estate, with remainder to John, James, and Lovett McDonald, the parties therein named."

The testator bequeaths the negroes, at the death of his mother, to Robert McDonald, his heirs and assigns forever; but, if Robert should live and die single, without a lawful heir of his body, the above property is to be equally divided between my three sons, James, John, and Lovett. The above is a concise statement of the bequest contained in this testamentary paper, and the question presented for our decision is, what estate did Robert McDonald and the other parties, take under it in the property?

The Court below held that Robert McDonald took a life estate only in the negroes, with remainder to the other three sons; but, on the argument before this Court, that position was abandoned by the counsel for the defendant in error, who insisted the limitation over to the three sons was good as an executory bequest, or, to use their language, good as an executory devise." That this bequest did not convey a life estate to Robert McDonald, with remainder to the testator's three sons, we think is quite clear, for the reason there was no particular estate to support such remainder. 2 Bla. Com. 165. The bequest is to Robert and his heirs and assigns forever; but, if Robert dies without an heir of his body, his title is defeated, and the property goes over. Is the limitation over, good as an executory bequest? We think this bequest over to the testator's three sons, cannot be sustained according to the rule of the Common Law, independent of our statute; certainly not under the provisions of the Act of 1821. According to the rule of the Common Law, the limitation over must be confined to a stated period; it cannot be extended beyond a life or lives in being, and twenty-one years afterwards, to which may be added a few months more, to reach the case of a posthumous child. The time within which the limitation over is to take effect, should be definitely fixed by the testator, so as to bring it within the period prescribed by the rule, otherwise it will be considered as a limitation upon an indefinite failure of issue, and void. 2 Bla. Com. 174; Atkinson vs. Hutchinson, 3 P. Williams, 258; Goodman vs. Goodright, 1 Bla. R. 188; Long vs. Blackall, 7 T. R. 100.

The testator bequeaths the negroes to his son Robert, his heirs

Robinson vs. McDonald.

and assigns forever; but, if Robert should die without a lawful heir of his body, the above property to be equally divided between my three sons, James, John, and Lovett. The time for the failure of the heir of the body of Robert is not defined by the testator; he does not say if Robert shall die without a lawful heir of his body living at the time of his death, or within the period prescribed by the rule, then the property shall go over; but the property is to go over to the three sons whenever there shall be no lawful heir of my son Robert to take it, whenever that event shall happen, without any fixed, certain, or definite period within which it must happen, as the rule stated requires. Mr. Fearne states the rule to be, "whenever an executory devise is limited to take effect after a dying without heirs, or without issue, subject to no other restriction, the limitation is void; for the policy of our law will not suffer property to be tied up and rendered unalienable, in expectation of such remote contingencies. As where lands are devised to A, and his heirs, and if A die without heir then to B, this limitation to B is absolutely void." Fearne on Remainders, 444, 445. "So where

A devised to J. B, and his heirs forever, and if J. B should die without any heir, then he devised the estate to C; this limitation to C was held void, because too remote." Tilbury vs. Barbut, 3 Atkyns R. 617.

We deem it unnecessary to review the various decisions which have been made on this branch of the law, or to notice the subtle distinctions which have been taken between a devise of real and a bequest of personal property, as we feel satisfied the Common Law rule before stated, best comports with the genius of our institutions and the habits of our people, which requires executory devises and bequests to be strictly confined within the limits prescribed thereby; for it is a species of entailed estate, to the extent of the authorised period of limitations, which the people of Georgia have not been disposed to encourage, as their legislative enactments abundantly prove. Chancellor Kent says, " entailments are recommended in monarchical governments, as a protection to the power and influence of the landed aristocracy; but such a policy has no application to republican establishments, where wealth does not form a permanent distinction, and under which every individual of every family has his equal rights, and is equally invited by the genius of the institutions, to depend upon his own merit and exertions." 4 Kent's Com. 20.

The limitation over to the three sons of the testator in this bequest not being restricted to a failure of an heir or heirs of the