Ferguson ex rel. McKinney v. Stephens

delivered the opinion.

This was an action of detinue, commenced in the circuit court of Montgomery county, by E. S. Ferguson, a minor, by McKinney, her guardian, against Stephens. In the progress of the suit, the plaintiff took a non-suit, *212and afterwards moved the couit to set it aside, which motion being overruled, this writ of error is prosecuted to reverse the judgment of the circuit court.

On the trial of this cause, it was in evidence, that in the year 1825, Dugald Ferguson, senior, conveyed to Dugald Ferguson junior, l>is son, and William Stephens, as trustees tor Eliza Susan Ferguson, daughter of said Ferguson, junior, and lor such other children as the said Dugald Ferguson, junior, might thereafter have, slaves. The provisions of this deed are: “That the profits and emoluments accruing liom said slaves t)e a fund to support and educate the said Eliza Susan Ferguson, and such other issue as the said Dugald Ferguson, junior, might thereafter have; and at his de-mjSe, to be equally divided among such of his children as might then be living.”

Some time in the year 1834, said Dugald Ferguson, Jeavingr no issue but E. S. Ferguson, the plaintiff; and McKinney, being appointed her guardian, commenced this action against Stephens, the surviving to recover these slaves, they having remained in the possession of Dugald Ferguson, senior, during his lifetime, and on his death, being taken possession of by Stephens, the surviving trustee. The evidence on the Part (>1' the plaintiff being all exhibited to the jury, the defendant moved the court to instruct them, that they must find for him, because the plaintiff had shown no legal title in himself. The circuit court gave the instruction as prayed, and the plaintiff as above stated, took a non-sun.

The deed, by which Stephens was made trustee for E* Ferguson, seems to have determined the estate lie had 'n the slaves, bv the death of Dugald Ferguson, junior, The provision maile by that deed that the slaves should |)£} <]¡yi<led among the surviving children on the death of their father, Dugald Ferguson, junior, seems to indicate that although the grandfather might, in t/ie lifetime of his son? |lilve been willing to intrust tlte management of those slaves to him and Stephens jointly,' et, that on the death of his son, he preferred that a guardian should, indue course of law, be assigned to t: ke chatge of tin m. There Can lie no doubt that he had power to limit the duration of the legal estate of Stephens. Such being my opinion, it seems to me that the circuit court committed error in instiucting the jury that the legal estate in these slaves remained in Stephens after the death oi Dugald Ferguson» junior; and that lor such error its judgment ought to be *213reversed;and the two other Judges of tlm court concurring with me in this opinion, it is accordingly reversed, and the cause will he remanded for further proceedings in conformity to this opinion.