#### *Moore v. Thornton & als.

April Term, 1850,

Richmond.

(Absent Cabell, P.)

1. Legatees—Division of Slaves among by Commissioner —Death of One of Slaves before Confirmation—Effect —Case at Bar.—Commissioners are appointed to divide slaves among legatees, and are directed to allot and deliver to each Ms share. They make the division, and deliver to each legatee the slaves allotted to him. The legatees are satisiied at the time, with the division and allotment: and each takes possession oí the slaves allotted to him, and thenceforth exercises ownership over them. Before the report of the commissioners is confirmed a slave allotted to one of the legatees dies, and he therefore objects to the confirmation of the report. Hele : That under these circumstances each party would have been entitled to the benefit of any increase in the value of his allotment, from the time of such division and taking exclusive possession, and is also bound to bear the loss occasioned by the death of any one of the slaves thereafter: though at the time of such increase in valne or loss the report may not have been formally confirmed.

2. Wills—Construction—Case at Bar.—Testator gives all his estate, real and personal, to his widow, until Ms youngest child comes of age ; and directs that it shall then be divided, one third to Ms widow for her life, and subject to the widow’s life estate, equally among his children ; but he charges the interest of his daughter W. with £500, advanced to her on her marriage. W. and her husband convey for value al ] her interest in the real estate to M.; and the husband conveys to M., for value, all his wife’s interest in the personal estate. The estate is divided according to the directions of the will, when the youngest child comes of age, when M. receives the share of W., abated by the whole charge of £500. After the division, and in the lifetime of the husband, M. purchases the life estate of the widow in one of the slaves allotted to her, and sells the slave. The husband dies in the lifetime of the widow, leaving his wife W. surviving Mm, and then the widow dies. Held :

1. Same—Same—Same.—M. is not entitled, under his purchase from the husband, to the interest of W. in the personal estate allotted to the widow for her life ; but it survives to W.

2. Same—Same- Same.—M. is not entitled to the share of W. in the slave, the life estate in which he purchased from the widow.

*3. Same — Same—Same.—M. must account for said slave at her value at the time of the widow’s death; except as to those of the legatees who consented to the sale by him.

4. Same—Same—Same.—W. must bear her proportion of the charge of £500 ; and to ascertain that proportion M. is to be debited with the value of *48the estate real and personal allotted to him on the first division of the estate, at its value at that time, and the value of the real estate to which he is entitled at the death of the widow, at its value at the time of her death. And W. is to he debited with the value of the slaves to which she is entitled at the death of the widow, as of their value at that time ; and the £500 is to he charged ratably to each.

Dr. Gustavus B. Horner, late of the county of Fauquier, died in 1815. By his will, which was admitted to probat in the County court of Fauquier, he directed that until his youngest daughter, Marianna, attained the age of fourteen years, his estate which might remain after the payment of his debts, should be kept undivided, and that the profits should be used by his executors for the maintenance of his widow and his unmarried children. And when the youngest .daughter attained the age of fourteen years, his widow should receive such portion of his estate as she would be entitled to if he had died intestate; and the remainder thereof should be equally divided among his eight children; except that the share of his daughter Frances Whiting should be charged with the sum of *£*500., which he had advanced to her on her marriage with George B. Whiting.

In the year 1817 George B. Whiting and his wife Frances, by deed bearing date the 11th day of August of that year,’ in consideration of 1708 dollars 34 cents conveyed to Thomas B. Moore, the interest of Frances Whiting in the real estate of her father. And on the same day George B. Whiting, in consideration of 1000 dollars, conveyed to Moore the whole interest of his wife in the personal estate of Gustavus B. Horner.

In December 1826 the estate of Gustavus B. Horner was divided under a decree of the late Chancery court *of Fredericksburg, when there were allotted to the widow slaves valued “at 2375 dollars, and two tracts of land in the county of Fauquier, one of which was called Turkey run, and a house and lot in Warrenton; and the share of each of the children in the slaves amounted to 850 dollars. At this time Thomas B. Moore was entitled to two shares of the estate: one in right of his wife, who was one of the children of Dr. Horner, and the other by virtue of the conveyances from George B. Whiting and his wife to him; but the latter was subject to the charge of *£*500. under the will of Dr. Horner. In making the division the commissioners charged this *£*500. against his interest in the slaves, as well that which he held in right of his wife, as that of Mrs. Whiting; so that he only received, on account of his interest in the slaves, the sum of 33 dollars 34 cents; but he received the whole of Mrs. Whiting’s interest in the real estate then divided.

Thomas B. Whiting died in 1835, in the lifetime of Mrs. Horner. She died in 1837, and Frances Whiting survived them.

In 1838 James B. Thornton and Marianna his wife, who was the youngest daughter of Dr. Horner, filed their bill in the Circuit court of Fauquier county, against Thomas B. Moore and his wife and others, the children of Dr. Horner, or persons claiming under them, in which they asked for a division of the property which had been assigned to Mrs. Horner for her life, and for an account of the rents of land and hires of slaves which hqd been received by any of the parties since the death of Mrs. Horner; and also for an account of any firewood, timber, building stone or any other profit which any of the parties had obtained from the land. This bill did not make Mrs. Frances Whiting a party.

*Moore and wife answered the bill, and claimed that they were entitled to five eighths of the property, one eighth in right of Mrs. Moore, and the others by purchase; and of these one was the interest of Mrs. Whiting. The other defendants also answered; and in October 1838 Ihe Court made a decree appointing commissioners to divide the tract of land called Turkey run among the parties, assigning five eighths thereof to John Glassell as trustee for Moore and wife; and also to divide the slaves, and assign five eighths thereof to Glassell on the same trust; and appointing other commissioners to sell the house and lot in Warrenton. And a commissioner was directed to take an account of the rents and hires of the property to which the parties were respectively entitled from the time of the death of Mrs. Horner until the 1st of January 1839. At the same term of the Court so much of this decree as directed a division of the slaves was set aside.

In December 1838, the plaintiffs filed an amended bill making Frances Whiting a party defendant: and she answered, and insisted that as her husband, George B. Whiting, had died in the lifetime of Mrs. Horner, before the slaves allotted to the widow were or were capable of being reduced into possession by Moore, she was entitled to them, notwithstanding the conveyance by her husband to Moore.

The commissioners appointed to divide the land, made their report; and the cause came on again to be heard in May 1839, when the Court confirmed the report; and that branch of the cause was then terminated. The Court further held that Frances Whiting was entitled to an equal division of the dower slaves of the widow of Gustavus B. Horner deceased, with the other legatees, notwithstanding the sale and assignment of her interest therein by her deceased husband, for valuable consideration to Thomas B. Moore; and made a decree, directing a commissioner of the Court to ascertain *the value of the dower of the said widow at the time of its assignment to her, and at her death; the value of each child’s interest in the same at both of these periods; the value of said Frances Whiting’s interest, both real and personal, in the estate of Dr. Horner, which Moore received on the division thereof; and the value of the said Frances *49Whiting’s interest in the real estate assigned to the said widow, both at the time of the assignment and at the death of the widow; and the value of her share of the dower slaves at said periods. And the Court not then deciding whether the interest of the said Frances in the dower slaves aforesaid, was subject to the *£*500. charged by the will of Dr. Horner on her share of his estate, directed the commissioner to report a scheme for division of said slaves, whereby the share of the said Frances in the dower slaves of the widow of Gustavus B. Horner would be subject to a portion of said charge of *£*500., estimating the value of said dower slaves at the period when the same were allotted to the widow; and also at the time of her death. And the Court further directed the commissioner to settle the accounts between the devisees and legatees of Dr. Horner, ascertaining the value of the stone and wood which either of them may have taken from the dower estate of the widow; and taking into the accounts the value at the time of the widow’s death, of a slave named Celia, one of the dower slaves admitted by Thomas B. Moore to have been sold by him. And that the commissioner should take an account of the rents and hires which had accrued since the widow’s death to the end of the current year; and to whom the same was chargeable.

In obedience to this decree, master commissioner Knox made a report which was returned on the 4th of April 1840. From this report, it appeared that the *£*500. charged by Dr. Horner on the share of his estate bequeathed to his daughter, Frances Whiting, had been ^charged to Thomas H. Moore, as hereinbefore stated, upon the division of the estate in 1826. It also appeared from the report, that if the share of Mr. Whiting in the dower slaves was to bear an equal proportion of the charge of *£*500., then, if the whole interest was to be valued as at the time of the division in 1826, she should be charged with 126 dollars 81 cents; but if the whole share was to be valued as at the death of Mrs. Horner in 1837, Mrs. Whiting’s proportion of the charge would be 203 dollars 70 cents. It also appeared, that the slave Celia was sold by Moore for 250 dollars, in 1827; and that she was worth at the death of Mrs. Horner, 350 dollars. And it further appeared, that Moore had obtained from the Turkey run land, during the lifetime of Mrs. Horner, a quantity of stone for the purpose of rebuilding his house, which had been burned; and had also obtained from the land twenty-five cart loads of wood.

Moore filed several exceptions to the report of commissioner Knox; the second of which was to the charge against him for the stone taken from the Turkey run land. This he insisted was not a proper charge; but if he was chargeable at all, that the commissioner had charged him with more than he had taken. And he introduced testimony which satisfied the Court below, that the second branch of the exception was properly taken.

In October 1840, the cause was removed to the Circuit court of Culpeper county; and came on there to be heard in November 1841, when the Court overruled some of the exceptions, sustained the second, and referred the case to a commissioner to correct the account by charging Moore with three hundred and fifty perches and five feet of stone at the jnrice fixed by commissioner Knox. The Court further directed the commissioner to state an account between the devisees and legatees of Dr. Horner, shewing the balance due from *them to each other; in stating which account he was directed to charge Moore with the value of Celia, the dower slave sold by him, at the price of 350 dollars, except as to the shares of such of the legatees as had consented to the sale; and as to whom he was to be charged with the price of that slave at 250 dollars, after deducting therefrom the value of the dower interest of Mrs. Horner in the slave, which interest had been acquired by Moore previous to the sale, and in the lifetime of George B. Whiting. And the Court further held, that the charge of *£*500. upon Mrs. Whiting’s share of Dr. Horner’s estate should have been taken out of her share of the real and personal estate divided in 1826, the personal property being first set off against the said *£*500., and the balance of that sum being charged upon the land; that therefore Moore had a claim against George B. Whiting for so much as was chargeable upon the land under the warranty of his deed; and as it appeared that Whiling had conveyed property subject to the payment of his debts, in trust for Mrs. Whiting, the commissioner was directed to take an account shewing the value of all the property which came into Mrs. Whiting’s possession since the death of her husband, under said deed. And commissioners were appointed to divide the dower slaves aforesaid, and deliver to the parties the slaves allotted to them respectively, except the slaves allotted to Mrs. Whiting, which were to be hired out by the commissioners.

The commissioner to whom the accounts were referred, made a report which was returned in October 1842. And the commissioners to divide and deliver the slaves, also made a report which was filed at the same time. From this report it appeared that they had proceeded in December 1841 to execute the decree of November 1841, and had divided the slaves, and delivered to the parties respectively, at the time of the division, the shares allotted to them; except that of Mrs. Whiting.

*Moore excepted to the report of the commissioner upon the accounts between the parties; but these exceptions do not refer to any question decided by this Court. He also excepted to the report of the commissioners appointed to divide ¡ the slaves, and to a confirmation of that | report, on the ground that Mary, one of the | slaves allotted to him by the commissioners, j had died about the 9th of September 1842, *'*after the division, but before the commis*50sioners had made out, signed or returned their report. With his exception, he filed his own affidavit of the death of the slave Mary, and also the affidavit of the physician who attended her, with the consent in writing of the counsel for two of the parties in this suit, that compensation in money might be decreed to him for the loss of the slave, instead of another division; and the statement of another of the counsel in the cause that he had understood from John Marr, one of the parties to this suit, and had no doubt of the fact, that the said slave Mary was dead, and had died since the division of the slaves.

The cause came on again to be heard in November 1842, when the Court recommitted the accounts to the commissioner, and on the motion of the defendant John Marr, suspended action on the report of the commissioners for the division of the slaves; and allowed to the parties until the next term of the Court, to take evidence in relation to the subject of Moore’s exception to this report.

It appeared from the evidence, that the commissioners proceeded in December 1341, to divide the slaves in pursuance of the decree of the previous November. That the slaves allotted to the parties respectively, except those allotted to Mrs. Whiting, were delivered to them. That a Mr. Wallace was requested to draw up their report, and consented to do it; and more than once applied for the papers to one of the commissioners with whom they were left, for the purpose of preparing the ^report; but the commissioner having lent to Moore the copy of the decree under which they had acted, and he having mislaid it, for the want of that paper the report was not prepared in time to be returned to the spring term of the Court for 1842.

It further appeared, that all the parties were satisfied with the division when it was made. That Moore took possession of the slaves allotted to him; that he sold one of them; that he pledged the slave Mary, in April 1842, to indemnify his surety in certain forthcoming bonds. That several executions against him were levied upon her in May 1842; that at the June Court of Fauquier county, she was to have been sold, but the sale was postponed by the plaintiffs, as the sheriff understood, at the request of Moore. That at the July Court, when she was again to be sold, the sheriff applied to Moore for her, for the purpose of selling her, when he was informed by Moore that he had sent her to a Mr. M’Flhany in Doudoun county, for the purpose of selling her at private sale; and therefore she was not sold at that time by the sheriff. There was no evidence that she was dead, except that which was filed by Moore with his exception as before stated.

The commissioner returned his report upon the accounts between the parties in June 1843, to which Moore excepted. His first exception was to the charge against him, in favour of Mrs. Whiting, for her share of the value of the slave Celia. The ground of this exception was, that George B. Whiting had sold to him all the interest of his wife in the personal estate of her father; and that he had, in the lifetime of said Whiting, acquired the life estate of Mrs. Horner in this slave; and therefore that Mrs. Whiting, though she survived her. hubsand, was not entitled to any interest in this slave.

The cause came on to be finally heard in June 1843, when the Court overruled the exception of the defendant *Moore, to the report of the commissioners for the division of the slaves; the said defendant having failed, though indulged with time for that purpose, to produce any satisfactory evidence of the alleged death of the slave Mary, and the material facts in relation thereto. And the said report and the division of the slaves therein mentioned was confirmed; and the decree was accordingly.

And the Court overruled the exceptions of Moore to the report of the commissioner returned in June 1843, and made a decree in accordance with the report.

At the term when this cause was decided, in the course of the argument, the counsel for some of the parties opposed in interest to Moore, suggested that the death of the slave Mary did not appear by any legal evidence, and’would not be admitted, unless all other facts which he deemed material to the question, were also admitted to be true. Whereupon Moore moved the Court to continue the cause to afford him time to prove the fact of the death of said slave, if the Court regarded the proof of that fact already furnished, insufficient. And to sustain this motion, he relied on his own affidavit, and the other proofs before mentioned. But the Court deciding that the proof of the death of the slave and the material circumstances relating thereto, were not sufficient, and that ample time to obtain the said proof had been allowed, overruled the motion, and proceeded to confirm the said report, and to make a decree in the cause. To which opinion of the Court, Moore excepted. And the Court certified that at the previous term, the matter of Moore’s exception in relation to the death of the slave Mary, was argued, and was not then decided on by the Court, because the facts in relation to her death, and such as the parties deemed material in deciding upon that exception, were not in proof, and therefore time was allowed the parties until the present term, to take their testimony in relation thereto.

*Moore applied to this Court for an appeal from the decrees in the cause, which was allowed.

Harrison for the appellant.

Byons for the appellees.

ADHFN, J.,

delivered the opinion of the Court.

The Court is of opinion, that' as it appears by the interlocutory decree of the 6th November 1841, the commissioners thereby appointed were directed to divide the dower *51slaves and allot the same to the parties respectively entitled, and to deliver over to the parties respectively the shares so allotted to them, except the share allotted to Trances Whiting, which the commissioners were to hire out; and the said commissioners having, in pursuance of such decree, divided said slaves, and the parties having drawn their shares respectively by lot, the same were delivered to them, and thereafter each exercised exclusive ownership over the share so allotted to each respectively; and no objection appearing to have been alleged against the fairness of the division when made, either at the time of the division or afterwards, under the, circumstances so appearing, each party would have been entitled to the benefit of any increase in the value of his allotment from the-time of such division, and taking exclusive possession ; and is also bound to bear the loss occasioned by the death of any one of the slaves thereafter, though at the time of such increase in value or loss, the report may not have been formally confirmed. The Court' is therefore of opinion there was no error in overruling the exception on account of the death of the slave Mary, or in overruling the motion for a continuance to enable the party to take further evidence touching the time of her death.

The Court is further of opinion, that the *£*500. directed by the testator Gustavus B. Horner to be '^charged against his daughter Trances Whiting, as having been advanced to her on her marriage, was a charge against her portion of the real and personal estate, to be distributed according to the will of the testator amongst his children. That it appears from the report of commissioner Knox, filed on the 4th of April 1840, that the appellant Thomas L,. Moore, in his own right and as alienee of George B. Whiting and wife, and assignee of said George B. Whiting, received at the first distribution of said estate the whole of Mrs. Whiting’s interest in the real estate, slaves and perishable property then divided and distributed, abated and diminished by the *£*500. charged as an advancement in the will, whereby the whole amount of said *£*500. was charged on the portion of Mrs. Whiting in said estate then assigned to and received by said Moore as alienee and assignee, whereby the reversion in the dower lands and slaves was wholly freed from any charge on account of said *£*500. ; an arrangement calculated to promote the convenience of all concerned, if, as was then supposed, the assignment had operated to pass the interest of the said Trances Whiting in the reversion of the dower slaves. But in the contingency which has happened, of her surviving her husband, who died before the life-tenant, and becoming by such survivorship entitled to take her interest in such dower slaves on the death of the tenant for life, she should take them charged with a rateable portion of said *£*500. ; otherwise the whole amount of the charge would be thrown upon the assignee and alienee of a portion of the estate, instead of being, what by the will it was intended to be, a charge on the whole of her portion. And the appellant, by allowing the whole abatement to be made from the share received by him at the first division and distribution, has,- in the contingency which has happened, paid out and advanced so much as would have been the rateable proportion *chargeable on the interest of said Trances Whiting in the dower slaves;, and to that extent has a right to charge said interest. In ascertaining the amount so chargeable the appellant should be debited with the whole value of Mrs. Whiting’s interest in the land at the time of the first division, and in the slaves and perishable estate; also the value of her interest in the dower land at the death of the widow ; and Mrs. Whiting should be debited with the value of her interest in the dower slaves at the widow’s death. And the amounts being so ascertained, the *£*500. should be charged rateably on each; and for the amount so chargeable to Mrs. Whiting on account of her interest in the dower slaves, the appellant will be entitled to a credit against her or a decree, as on an adjustment of the accounts between them may be proper. The Court is therefore of opinion, that the interlocutory and final decrees* so far as they conflict with the principles aforesaid, are erroneous; but that in all other respects the same be affirmed. The said decrees are therefore reversed, with costs against Trances Whiting, and are remanded, in order to be corrected in the particular hereinbefore declared to be erroneous as between the appellant and said Trances Whiting, and to be further proceeded in in order to a final decree.

DAKEEJIy, J.,

dissented. He was of opinion that by the assignment of George B. Whiting, Mrs. Whiting’s interest in the slaves passed to Moore. And he was of opinion that Moore was improperly charged with the slave Mary, who died before the report of the commissioners was confirmed.