The Equity
Lexington
June, 1852

Richard Sturkie, Jerushia, his wife
Vs.
Elijah, Joshua and Wiley J. Jefcoat

The Plaintiffs, in rich of the wife, claim to be entitled to a share in remainder of certain slaves, after a life estate in Elijah Jefcoat, and they seek by this Bill to obtain security for the forthcoming of the slaves and termination of the life estate.

John Hoover, by Deed dated august 27, 1811, in consideration of natural affection, conveyed to his daughter, Jerushia Jefcoat, then the wife of the Defendant, Elijah Jefcoat, certain lands and the slaves, Harry, Minna, Clander and her three children, Millander, David and Esther, instantly after the death of the Donor, in the words of the Deed, “to have all the above named property, both real and personal, forever. Should my beloved daughter, Jerushia Jefcoat, all to have the same without any waiver of conditions whatever, forever.”

Sometime after the execution of this Deed and in the lifetime of the Donor, as stated in the answers on January 7, 1818, Jerushia Jefcoat died without having had possession of said slaves. She left surviving her, her husband and sic children, all still living, namely the Defendants Joshua and Wiley J.; Mary, wife of John Amaker; Harriet, wife of Jacob Amaker; Martha, wife of Gabriel Sturkie; and the Plaintiff, Jerushia. Elijah Jefcoat married again after the death of his wife, Jerushia, and it seems that he has fifteen living children by the second marriage.

Before the death of his former wife, Elizabeth Jefcoat, by some arrangement not appearing by the conveyance, perhaps as suggested in the answer of his two sons, by another Deed, obtained possession from John Hoover of two other slaves, Fortune and Phillis and the latter afterward had increase, George and Rhoda. John Hoover died January 31, 1832 and about that time Elijah Jefcoat came into possession of the slaves named in the Deed with their increase. On April 24, 1832 Elijah Jefcoat being then in possession of sixteen slaves received from John Hoover including Fortune, Phillis and her five children, under what he supposed to be at least twelve other slaves with a life estate in him with the remainder to his children by his wife, Jerushia, made distribution among their said children of thirteen said slaves. This partition was made with the aid of neighbors, after all of these children had attained full age or become the wives of adult husbands. In the presence of his sons and sons in law, excepted the Plaintiff, Richard Sturkie; three of the negroes, Will, Dave and Nell were retained by the father, two were assigned to each of the six children, and one, Dinah was sold at auction to one Benjamin Jefcoat for $360 and the proceeds applied to correcting inequalities of the partition among the children and in disencumbering the property from some debt of Hoovers.

The Plaintive, Sturkey, joined in the Bill of Sale of Dinah, received into his possession two slaves, Tooler and Clander assigned to him on partition and received some money from J. A. Jefcoat to equalize his share. He sold Tooler, now the mother of two children, six or seven years ago to Jacob Laird, sold Judy, a child of Clander born after the partition to Frederick Livingston on February 22, 1838 and he still keeps Clander.

Of the negroes retained at this parition by Elijah jefcoat, and their increase, Dave is dead; Nelly and her child Agowaine were sold by him in April 1843 to his two sons and co-defendants for a full price in fee; Ester and Dinah, two of Nell’s children also, Will are still in his possession, the former is in Alabama whither he expects to remove.

The view of this partition taken in behalf of the Plaintiff is that no agreement whatever was made in relation to the three negroes retained by Elijah Jefcoat and that they were simply not brought into division, where as the Defendants insist that it was the questing of his title in fee to these three which forced Elijah Jefcoat to surrender to his children of his interest in the other thirteen slaves. The direct evidence upon this point is scanty. John Sturkey, father of the Plaintiff, testified to a declaration of Elijah Jefcoat shortly before the division to this effect, “I am going to have division of part of the negroes, as all belong to the children at my death, it is as well they should be plagued with them as myself. I will keep such as suit my business and will do for my lifetime.” Barnett Livingston, on the other side, testified to a declaration of Elijah Jefcoat in reply to a question by his son Wiley, whether the negroes retained by the thather were to be divided at his death among his six children, “No, Mate! I will keep them absolutely as I have other children to provide for.” It would be unsafe to conclude from this evidence that there was any agreement incidental to the partition by which the children released, what all parties then supposed to be their right, in remainder to the slaves retained by the father.

The insufferable obstacle to the relief sought by the plaintiffs is that the Deed under which the claim is set up, the children of Jerushia Jefcoat take nothing as purchasers in remainder. Her children are not designated under terms of description of her heirs. In Deeds like these under consideration, transferring legal interest without any executory trust and without further words designating particular persons, the term “heirs” is usually a word of limitations and operations to render the estation of the ancestor, or first taker, absolute. This result follows as to the land from the rule in Shellys case, Irep.104, and as to personally form consideration analogous to those on which the rule is founded. Dotta Cummington, 1 Bay 447, Porter V. Doby, 2 Rich Eq. 52.

I think that Hoover’s Deed conveyed the property in the slaves, after a life estate in the Donor to Jerushia Jefcoat absolutely, were the first instance by force of the term “forever” (several words here are illegible) and that the remainders of a life estate to Elijah Jefcoat and of the fee to his heirs miscarry. It would make no difference in the operation of the rule above mentioned if it should be held that the estate to Elijah Jefcoat was effectually interposed before the limitation to this heirs. It is sufficient for the purposes of this case to determine that the children of Jerushia Jefcoat do not take under the Deed the remainder as purchasers. The whole scheme of the Bill is that these children do so take, and the only remedy sought is security for the forthcoming of the property at the termination of Elijah Jefcoat’s life estate.

If it be conceded that the marital rights of Elijah Jefcoat did not attach to the slaves and the Jerushia Jefcoat’s distributes were entitled to their share presently on the death of Hoover, and that these questions might be educated in the present state of the pleadings, the Plaintiff would still encounter many difficulties in that aspect.

Effect out to be given to the partition of 1832 even to the entent of signing Will, Dave and Nell absolutely to the father; although made under mistaken notions of right in as much as the distribution was liberal to the children and the parties can now be returned to their original situation. Undoubtedly Elijah Jefcoat had the right to retract upon better advice the misconstruction he once had given this Deed; and there is evidence since this distribution in 1832, he even acknowledged as to the slaves he then retained any right, common or reversonary in the children of his former marriage, on the contrary, by the sale of some of the slaves eight years before the filing of the Bill and by notorious adverse of all of them as asserted is inclusive and absolute title.

The Defendants have pleaded the statutes of limitation.

It is ordered and decreed that the bill be dismissed.

F. H. Wardlaw