Thomas H. Smith et al. v. Robert Tucker.
From Stokes.
Slaves were, before the act of 1823 {Rev. e■ 1211) by deed, limited toa woman “and her children at present living, and those she may her-.aftei have, to have, &e. to her in manner aforesaid, for life, and afterwards to her present children, and any which may hereaf- . ter be boro." Held, that the limitations being in succession, the mother toot the whole interest.
M;ld also, that if the deed had been executed in a State where such limitations of slaves are valid, they would have been supported here.
Detinue for several slaves. The Defendant pleaded the general issue, and the cause was tried before hia Ho*542nor Judge Strange. The Plaintiffs were the children of Eleanor Smith, mentioned in the following deed:
Dec. 1830.
<= STATE OP VIRGINIA, ?
“ Mecklenburg County. 5
“ KNOW all men liy these presents, that I Robert ñyáe, of tlie “county, &c. for and in consideration of the natural love and afpec- “ tion I bear to Eleanor Smith, my sister, and her children by her “ present husband James Smith, and which she may hereafter have, <£ have this day granted, given and transferred to my said sister and “ hqr children, at present living, and those she may hereafter have, “ the following proner'y (setting forth the negroes claimed in .this ac- <( tion) to have and to hold the before mentioned property, to her “ the said Eleanor, in manner and form aforesaid, for and during her “life, and afterwards to her present children, and any which may, “ hereafter be born of the said marriage, and which may he living at “ the time of her death, to be divided arpone them in equal portions, “ to them and their heirs forever. In witness whereof,” &c.
No evidence of title, except this deed, was offered by the Plaintiff, and his Honor being of opinion that the. mother, Eleanor Smith, took the whole interest in the slaves, and that the Plaintiffs had no title, as tenants in common with their mother, a nonsuit was entered, and the Plaintiffs appealed.
The case was submitted without argument, by Nash, for the Plaintiffs. No Counsel appeared for the Defendant.
Ruffin, Judge.
The construction of the deed under which the Plaintiffs claim, is settled in our law. Upon the whole deed, the donees take in succession. The limitations over are unquestionably void. The construction may be varied by the law of another State, in which it was executed. If it was executed in Virginia, the Plaintiff should have proved the fact and the law of Virginia. It may be, and probably is the law in that State, that remainders in slaves after a life estate are valid, as they are known to certain purposes to have been part of the realty. But if it beso, the burden of making *543it appear rested on the Plaintiffs, and in ttie absence of such evidence, the opinion of the Court below is correct.
Per Curiam. — Let the judgment of the Court below be affirmed.