#### SAMUEL S. WOODLEY *against*SARAH GALLOP.

Where slaves were bequeathed to A for life, and then to B, a daughter, a married woman, and, during the life of A, the husband of B died, leaving a child of the marriage, B then married again, and had another daughter, when she, B, died, and her second husband also died, (A the life-tenant still living) it was *Held,*on the termination of the life-estate, that the administrator of B, was the proper person to obtain the possession of her share of the slaves, but that he held the same in trust for the second husband’s legatee, and that the daughter of the first marriage, was entitled to no part of it.

Cause removed from the Court of Equity of Washington county.

Dempsey Spruill, by his will, which took effect in 1812, bequeathed as follows: “How my will and desire is, that all my negroes, at the death of my wife, Mary Spruill, shall all come in together, of every description, and be equally divided among my lawful heirs, except my son, Downing Spru-ill.” At the death of the testator, besides the son Downing, above named, he left five children, William, Mary, Henrietta, Theresa, and Caroline, and on the death of Mrs. Spruill, which took place in 1858, and (on petition of the children and their representatives,) a division was ordered, and the share of Theresa, was delivered to the plaintiff, as her administrator.

Theresa, whose share was the subject of this controversy, was married at the time of her father’s death, to one Plum-mer C. Dudley, who died in 1845, leaving one child, the plaintiff, Elizabeth, the wife of the other plaintiff, Samuel S. Woodley. Dudley, the former husband of Theresa, did not in any way, dispose of his wife’s undivided share of these slaves. In the year 1848, the said Theresa again intermarried with one Joshua G. Gallop, who died in 1855, having made a last will and testament, appointing the plaintiff, Woodley, executor to his will, and testamentary guardian to his infant daughter, Sarah, who is the defendant in this case, and to whom he gave all his estate by the said will.

The prayer of the bill is, that the said slaves shall be divi*139ded between the said Woodley and wife on the one hand, and the defendant, Sarah, on the other.

Garrett, for the plaintiff.

*II. A.*Gilliam, for the defendant.

Manltj J.

By the will of Dempsey Spruill, admitted to probate in 1842, his estate in slaves, is given to his wife for life, remainder to certain of his children, William, Mary, Henrietta, Theresa, and Caroline, subject to be divided among them after the determination of the life-estate.

The widow, and tenant for life, is now recently dead, and the question presented for our decision is, who is entitled to the share of Theresa? It seems that at the time of the death of her father, this daughter was the wife of one Dudley. By this marriage, she had issue, a daughter, Elizabeth. ■ The husband, Dudley, died in 1845, without having, in any way, attempted to dispose of his wife’s undivided interest in the slaves, and Mrs. Dudley again intermarried in 1848, with Joshua Gallop, and had issue, Sarah, the defendant. Theresa died in 1853. Her husband, Gallop, in 1855. The complainant, Woodley, in 1858, intermarried with Elizabeth Dudley, the daughter of Theresa, by the first marriage, and is the administrator of his mother-in-law, and also, the executor of the last husband, Gallop, and testamentary guardian of the daughter, Sarah. The point made upon this state of facts is, whether the estate in this share of the slaves is distributable to the two daughters of Theresa Gallop, or whether it be held by her administrator in trust for the legatee of the surviving husband.

We regret that the fact of the wife’s death, prior to that of her last husband, and ignorance on his part, probably, of the state of the law, must work, in this case, what will be deemed a hardship.

The rules are well settled by which this property belongs to the surviving husband’s representative and legatee. Upon the death of the first husband, it survived to the wife, Mrs. *140Dudley, and the right passed to her second *jure mariti.*This is settled by a train of decisions in our own courts, and has 'been considered as settled ever since the case of *Poindexter*v. Blackburn, 1 Ired. Eq. 286, in which the previous cases are •cited and approved. It continued a chose in action until after the death of the tenant for life, when it was rightfully taken possession of by the administrator of the wife, Theresa; •but he held it in trust for the husband, who was entitled to it by virtue of his marriage, and now holds in consequence of the husband’s death., in trust for his representative and legatee.

It will thus be perceived, that the case turns upon the fact that the husband., Gallop,’ survived his wife, and was entitled, under the rules o.f law, to her personal estate. The subject is discussed in the treatise of Mr. Roper on Husband and Wife, vol. 1, p. 204-5, (32 L. L. 129-30,) and we refer to it with the authorities there cited as the basis of this opinion.

Pee Cubiam, Decree accordingly.