#### Parks’s Adm’r and Heirs v. Rucker.

March, 1834,

Richmond.

(Absent Tucker, P., and Cabell, J.)

Equity Jurisdiction — Suit by Heir for Slaves.* — An heir at law claiming- title to slaves which had been assigned to the widow for dower, the title having-commenced while slaves were real estate, has a legal title and a plain remedy at law; and a court of chancery has no jurisdiction to entertain a suit of the heir at law for such slaves; and a prayer in the hill for a ne exeat against the defendant, cannot give jurisdiction, since the whole benefit of that process might he obtained by a requisition of bail in an action of detinue.

Administration Account — Lapse of Time.† — An ac*65count of administration, demanded after a great lapse of time, held a stale demand and therefore denied.

Administrators — Unsigned Inventory — Effect. — An inventory not signed by an administrator, is no inventory as to him, and so no ground on which to charge him.

Martin Parks and three others exhibited a bill against Moses Rucker, in the superior court of chancery of Lynchburg, — alleging that John Parks died intestate shortly after the year 1775,* and that a female slave named Nelly was allotted to Elizabeth his widow, for her dower of his slave property, and Nelly had one child named Ben ; that the widow married Moses Rucker, and died in 1820; that the *two slaves held by her were in her husband Rucker’s possession at the time of her death, and he still detained them ; that the plaintiffs were uncles and aunts of the half blood, and heirs at law of John Parks, and that they had also purchased the rights of Benjamin Parks who was the eldest son of John Parks’s eldest brother, and who claimed to be his only heir at law ; that either as heirs at law themselves, or as assignees of Benjamin the heir at law, they were now entitled to those slaves; and that Rucker was preparing to remove from the commonwealth, and had declared him intention to carry the slaves with him. Therefore the bill prayed a writ of ne exeat against Rucker.

Rucker, in his answer, controverted the right of the plaintiffs: he denied, that the slaves in question had been held *by*his deceased wife as dower slaves of her first husband; but he said, that the claim asserted in the bill had been the subject of a compromise between him and the plaintiffs, made many years ago, by which he acquired an undoubted absolute property in the slaves now claimed. And he denied, that he had any intention to leave the commonwealth or to remove the slaves.

The plaintiff Martin Parks, having taken administration de bonis non of John Parks’s estate, the plaintiffs filed an amended bill, making him a party in that character, and making Benjamin Parks also a party, alleging, that Elizabeth, the widow of the intestate John Parks, had been his administratrix ; that she qualified as such in 1786; that she. had returned an inventory of his estate, and that the slaves in question had been allotted to her as her dower of her intestate’s estate; and praying that Rucker should render an account of his own and his deceased wife’s administration of John Parks’s estate, and an account of the profits of the slaves in question, and a decree against him for the slaves and profits.

Rucker demurred to the amended bill as altogether irregular, presenting a different case and claim from those shewn in the original bill. And then answering, he said that the administrator de bonis non of John Parks, had as such no *colour of right. He admitted, that his wife had taken administration of her first husband’s estate; but he said, she had done nothing in that character; that the pretended inventory was not signed by her; that there were never any, accounts of administration to render; and that the plaintiffs, at this late da3r, had certainly no right to call for such accounts.

The plaintiffs failed in the proof of their case; and, on the contrary, Rucker adduced very strong evidence to shew, that he was entitled to the slaves, even if they had ever been held by his wife as dower of her first husband’s estate, by a compromise between him and Benjamin Parks the heir at law.

The chancellor dismissed the bill, and the plaintiffs appealed to this court.

The cause was argued here by Garland for the appellants, and Stanard for the appellee; the former insisting on the merits, that the appellants were entitled to the property; the latter confining himself to the question of jurisdiction, and maintaining that the case was not a proper one for relief in equity.

*

Equity Jurisdiction — Suit to Recover Slave. — The-principal case was cited in Hale v. Clarkson, 23 Gratt. 47. See generally, monographic *note*on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.

†

See monographic *note*on "Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6. In accord with the proposition laid down in the last headnote. see Carr v. Anderson, 2 H. & M. 361.

*

Th;]t is, he died before the statute of 1792 was passed, making slaves, thenceforth, personal estate. Prior to that statute, slaves were real estate (though subject to some very peculiar regulations) and the widowwas entitled to dower of them; the reversion, of course, belonged to the heir at law. See the act of October 1705, ch. 23, § 1, 10, 11; 3 Hen. stat. at large, p. 33-35. — Note in Original Edition.

CARR, J.,

delivered the opinion of the court. This case has been strangely managed, and curiously compounded, in the court below. Taking it upon the original bill, it is simpl3r the case of the heirs at law claiming the dower slaves, after the death of the dowress; and this is a clear legal claim; for after the assignment of dower the administrator had nothing to do with the dower slaves. The widow had a life estate in them; they never afterwards devolved to the administrator, or formed any part of the assets. At the death of the dowress, then, what was to impede the claim of the heir, in a court of law? I can see nothing. No discovery was sought. As to the prayer for a ne exeat, that could not give jurisdiction, if the plaintiffs had a legal demand. The ne exeat is a proceeding in equity to obtain bail, in a case where there is a demand or claim in equity *but not at law; for if it be a legal claim, then the plaintiff may have bail at law; and equity (except in a few cases of concurrent jurisdiction) will not entertain him. Rhodes v. Cousins, 6 Rand. 188. Upon the original bill, then, the claim was a legal one, and the bill was properly dismissed. But the amended bill alleges, that Mrs. Rucker was administratrix of the first husband’s estate; and an order of court is produced to prove her qualification in 1786, and an inventory of the estate. And Martin Parks, one of the plaintiffs, qualifies as administrator de bonis non of John Parks; and, in that character, calls upon Rucker to account for his wife’s administration, and his own. The answer of Rucker demurs to this new modelling of the case, and adding new plaintiffs and defendants, admits, that his wife did qualify as administratrix, but denies that she ever acted in that character, or received or held any property as administratrix, or that she ever had any thing to do with the inventory, and he relies on the great length of time after which he is called on to account for himself and wife. He denies also, that she or he ever held the slaves as dower slaves, or that any dower was ever assigned to her; and *66Says, that they have held them as their own property exclusively, for above thirty years; and he relies on this holding for title. There is no proof in the record, that Mrs. Rucker, or her second husband Rucker, ever acted as administrators; and the call for an account after this length of time, is certainly too stale. Nor is there any proof, that these were assigned as dower. There are many witnesses who speak of the hear-says and rumors, and impressions of the neighbours; but none know any thing of the matter. The inventory is not signed by the administratrix, and therefore is no inventory; no proof that the property mentioned in it belonged to the intestate. This is expressly decided in Carr v. Anderson, 2 Hen. & Munf. 361. Therefore, whether we take the case upon the original or supplemental bill, the decree must be affirmed.