#### *Lucy B. Reese*vs. *Wyett Holmes and others.*

Parties and their privies to a record and deeroe in partition, are concluded, by the decree, from showing an estate in the parties, at the time, greater than, or derived from a different source from, that set out in the proceedings and established by the decree.

Bill in Virginia for partition of testator’s estate, to which his widow was a party as plaintiff, stated that the widow had renounced all her interests under the will, and that she claimed her dower ; and the prayer was, that her dower be allowed her. An order was made for the division of the estate between the “ claimants according to law,” and the appointment of commissioners to make the division. The commissioners made their report, allotting one-third of the negroes to the widow, and the decree simply confirmed the report. In no part of the record was it stated what estate a widow claiming dower was entitled to; but it appeared, that, by the law of Virginia, a widow, renouncing her interests under the will, and olaiming dower, was entitled to one-third of the estate, and, where she got negroes in the division, she took them for life *only:*— Held, that the Court might look into the pleadings and the law to ascertain what estate the widow, the plaintiff in the bill, was entitled to ; and that she took, under the decree, an estate for life only in the *negroes:*— Held, further, that she could not show, that as distributee of an infant daughter, legatee under the will, who had died before the division, she was entitled *absolutely*to a portion of the property divided — no such claim having been stated in the bill, or allowed by the decree.

By a Virginia statute, if a husband removes from that State slaves in which his wife has a life estate, without the consent of the remainderman or remaindress, he or she may suo for, recover and possess such slaves during the life of the husband *r*— Held, that, where slaves were, under such circumstances, removed into this State, and the husband of the remaindress did not enforce the forfeiture, and many years elapsed before the death of the tenant for life, the right to enforce the forfeiture and the estate in remainder, did not so coalesce as to bar, under the statute of limitations, the right of the remaindress to the possession of the slaves at the termination of the life estate.

Bill by husband alone for the protection of the wife’s remainder in slaves, and decree thereon for the protection of the property, *held,*not to vest the wife’s estate in remainder in the husband.

Neithor the husband, nor the wife, alone, nor the husband and wife acting jointly, have the power, during the coverture, without the sanction of the Court, to assign the wife’s vested remainder in slaves expectant upon the termination of a life estate therein, so as to defeat the right of the wife to the remainder when it falls in, should the husband then *532be dead. Should the husband be alive when the remainder falls in, and he then have the right to reduco it to possession, his previous assignment will, it seems, hold good.

Two deeds conveying a large number of slaves, over fifty, in consideration of $1,000, set aside, under all the circumstances, on the ground of fraud.

The Court has jurisdiction to decree a specific delivery of slaves in favor of aremaindress against persons, claiming under the life tenant, who had been in possession many years — the life tenanoy having lasted fifty years.

On a bill for specific delivery, the defendant may be compelled to account for the value of such of the slaves as have died since the filing of the bill.

This cause was heard at Edgefield, June sittings, 1851, by Chancellor Johnston. The facts, upon which the points adjudicated turned, will sufficiently appear from his decree.

Johnston, Ch. This is a case of unusual importance; not only from the value of the property in litigation, but from the questions, both of fact and of law, involved in the suit.

Before considering the case, it will be proper to settle who are the parties to be affected by the decree, when it is delivered.

Two of the. defendants, E. B. Holloway and Thomas O. Holloway, do not reside, and did not, at the filing of the bill, or since, reside within this State. They have not been served with process, and have not appeared or answered. They have no interest in the property in the hands of the other defendants, upon which the decree is to operate. Under these circumstances, they are not amenable to this Court; nor can its decree affect them. It is, therefore, ordered, that the order *fro confes-so,*entered against them, be rescinded, as improvidently granted; and that the bill be dismissed as to these two defendants.

The plaintiff, being satisfied, by the answers of John Middleton, Francis W. Burt, and B. M. Talbert, that these three other defendants never had possession of any of the property in controversy, (upon leave obtained for that purpose,) entered an order before the hearing, that the bill be dismissed as to them also.

Therefore, the decree to be delivered, is not to have any effect upon the five defendants before named; but must be construed with exclusive reference to the remaining defendants in the cause; and it is so ordered and adjudged.

We now proceed to the case.

*533The plaintiff’s claim is briefly this: She is the daughter of one Thomas Williams, a citizen of Brunswick county, Virginia, who died in January, 1787. She avers, that in a division of her father’s estate, which was effected, between her mother (the widow of the decedent) and herself, in the county court of Brunswick, about the year 1797, — two female slaves, *Jenny*and *Edie,*were assigned to the mother for her life, with remainder to the plaintiff. That these negroes, with their increase, were removed from Virginia to this district, (Edgefield,) about the year 1799, by one Lewis Holloway, who had become the second husband of her mother; and here remained until 1814 when Holloway died. That, upon his death, the plaintiff’s mother, who thus became *his*widow, — and for whose life the negroes were held, — came into the possession of them. That, for certain causes, which rendered such a proceeding necessary for the protection of her remainder in said slaves, and their increase, the plaintiff’s husband, James Reese, then alive, filed a bill in the Court of Equity for Edgefield, against Rachel Holloway, her mother, and others, in the year 1819 ; to which a supplemental bill, for additional causes, and against additional defendants, was superadded, in 1821; and the suit resulted in a decree pronounced in June, 1822; in which decree the Brunswick record of partition was interpreted to have given the mother only a life tenure in the slaves which she received under it, with remainder to the plaintiff; and, upon the ground of that interpretation, provision was made for the preservation of the remainder of the plaintiff.

That subsequently to that decree, and while the life estate still subsisted, several of the defendants, who had gotten possession under Holloway, or his administrator, obtained deeds from the plaintiff’s husband, (which deeds they endeavored to corroborate, by obtaining other deeds from him and the plaintiff conjointly,) by which certain undivided portions in the remainder expectant of the plaintiff were conveyed to them. These deeds, which were obtained in succession from 1824 to 183-, she attacks, upon grounds set out in the bill. Finally, *534that, after her husband had died, Mrs. Holloway, (upon whose life the remainder was suspended,) died in 1847; and, the remainder accrued to the plaintiff. But, then, certain of the defendants obtained from herself, then *discovert*and *sui*juris, deeds, executed by her, in June, 1848, conveying her whole remainder to them. These deeds she assails for fraud; — and prays that they be set aside; and that the slaves be decreed to her. The bill also prays general relief; and was filed the 23d of April, 1849.

It will be perceived, from this summary statement, that the fundamental questions in the case are, (1) did Mrs. Holloway take the original stock slaves, under the Brunswick record, exclusively as parcel of the estate of Thomas Williams, her first husband ? and, if so, (2) what quantity of interest did she take in them? And these questions, I think, must bo determined by that record.

If it should appear, that, in the allotment to Mrs. Holloway was included, as has been supposed, not only the share to which she was entitled as widow of Williams, but a distributive share of the share of one or more of-his children, who had died ; while, at the same time, it appears that her share, *as widow,*was intended to vest only for her life: the-only consequence of that state of her rights must be to limit the plaintiff’s claim. The diverse interests of Mrs. Holloway, thus confounded in the property, must now be separated by a partition,- — in the same proportions which they bore to each other when the allotment was made ; and the confusion of rights took place -and the remainder, in that part to which the plaintiff’s right, in remainder properly attaches, should now be decreed to her.

The two questions which I have stated, must be constantly ■borne in mind, while we examine the Virginia record, where most of the facts, of which there is any evidence, appear.

■ Thomas Williams died, as I have stated, and as the pleadings and exhibits in that case show, in January, 1787. He had a competent estate, consisting of land and eight or nine negroes. A few days before his death, (December 26, 1786,) he executed *535his will; having, at that time, a wife, Rachel, a son, Samuel, and two daughters, *Sally*and *Lucy]*(who is the plaintiff here,) for whom he provided, in the will, as follows:

1. “I give and bequeath to my son, Samuel, the land and plantation I now live on, — to him and his heirs forever. But, if he dies before he comes to the age of 21 years, my desire is, that my land be equally divided between my two daughters, Lucy and Sally Williams, — them and their heirs, forever.

*2. “*Item. I give and bequeath to my son, Samuel Williams, one negro girl by the name of Winney, and her increase, — to him and his heirs, forever.

3. “ Item. I give and bequeath to my daughter, Lucy, two negroes, Pat and Silla, — them and their increase, — to her and her heirs, forever.

4. “ Item. I give and bequeath to my daughter, Sally, one negro, named Jenny, and her increase, — to her and her heirs, forever.

5. “ Item. I lend unto my loving wife, Eachel Williams, one-third of the land I now live on, during her natural life, or widowhood; — one negro fellow, Will, during her natural life;— a choice bed and furniture; my grey horse and side-saddle; choice cow and calf; sow and pigs. And after her death, my desire is, that what I have lent my wife, be equally divided among all my children, — to them and their heir's, forever.

6. *“*Item. My will and desire is, that all my estate, not already disposed of, bo equally divided among all my children, Samuel, Lucy and Sally, — to them and their heirs, forever.”

One Joseph Lyell proved the will and qualified as executor, the 22d of January, 1787. ■

The testator’s son Samuel, mentioned in the will, it is admitted, happened to die before his father; being an infant at the time, and having neither wife nor issue ; and it would appear perfectly plain, (I observe here,) that his legacies and devises, which lapsed by his death, passed, by the terms of the will, to his two sisters, Lucy and Sally, if they both survived the father, or to whichever of the two so survived.

*536By statutory provisions of Virginia, passed in 1785, then of force, it was declared that the operation of wills of real estate should be subject to a “ saving to the widows of thé testators,” of their dower in lands, &c., “ according to law —which shall not be prejudiced by any devise thereof, *(a)***With respect to testaments of personalty, it was provided, (b)*that*— “ when any widow shall not be satisfied with the provision made for her by the will of her husband, she may, within one year from the time of his death, before the general Court, — or Court having jurisdiction of the probate of the will, — or by deed, duly executed in the presence of two or more credible witnesses, declare, that she will not take, or accept, the provision made for her by such will, — or any part thereof; and renounce all benefit which she might claim by the same will: — and, *thereupon,*such widow shall be entitled to one-third part of the *slaves*whereof her husband died *possessed,*— which *she shall hold during her*life, and at her death, they, and their increase, shall go *to such person, or persons, to whom they would have passed and gone,”*(under the will, of course, so far as its provisions might extend,) *“*if such declaration had not been made. And she shall, moreover, be entitled to such share of his *other*personal estate,” (as contra-distinguished from his singes,) “as if he had died *intestate,******to hold to her as her absolute property. But every widow not making a declaration, withing the time aforesaid, shall have *no more*of her husband’s slaves and personal estate, than is given her by his will.”

It appears from a minute of Brunswick County Court, where the will had been proved, that, on the 24th of September, 1787, “ Rachel Williams, widow of Thomas Williams, deceased, came personally into Court, and declared, that she would not accept, receive, or take, the legacies, devised to her by the will of the said Thomas Williams; and renounced all benefit or advantage therefrom.”

*537On the — of December following, (December, 1787,) she married Lewis Holloway.

In April, 1790, Lucy Williams, (the present plaintiff,) one of the two daughters of the testator, married John West.

Sally Williams, the other daughter, died unmarried, and intestate, during her infancy. She died, certainly, between the date of her father’s will, (December, 1786,) and the proceedings for the partition of his estate, which we are now examining; and which were commenced the 9th of December, 1795. But there is notl ing from which the precise date of her death, whether occurring before or after that of her father, can be fixed.

On the 9th of December, 1795, as I have stated, Holloway and wife, and West and wife, exhibited their bill against Lyell, the executor, on the chancery side of Brunswick County Court.

Now, remember the two important questions to be solved by this proceeding; and attend to what the proceeding contains.

It will appear, I think, from an attentive consideration of its contents, that, so far from purporting to distribute any share which Sally may be supposed to have held in the estate, — considered *as such,*— between the mother and other daughter then in Court, there is no statement, fact or circumstance, disclosed in the whole case, (except that the will formed an exhibit,) indicating that she ever had either share or interest to be distributed. Her name is not mentioned, from beginning to end, more than if she had never existed. The estate, which is proposed as the subject of division, and upon which the Court is called upon to decree^ is constantly called the *estate of Thomas*Williams, alone; and constantly considered and treated, throughout, *as such;*and the interests of the parties in *that*estate, considered purely *as such,*are set out, not in technical language, but in unstudied language, which happens to define and discriminate them with unusual distinctness. The mother, as widow of Thomas Williams, claims what is known familiarly in Virginia as dower, or the share, real or personal, allowed by statute law, there, to a widow, who renounces her interests under her husband’s will. The daugh ter claims all the balancethat is to say, every right *538and thing in the estate, not covered by the mother’s limited claim.

Now let us take up the pleadings. The plaintiffs set out by stating the will and death of Thomas Williams; — the probate of the will, and the assumption of the executorship by Lyell, the defendant; — that the plaintiffs verily believe, *“*that all the debts due from *the said estate,*— of *the said deceased Thomas Wil*liams,”— have been settled; — that the executor refuses to come to a settlement of “ the estatealthough (if one was ha*d)*your orators and oratrixes charge, that there is no real or just reason why an immediate division of *said estate*should not take place among *them, according to law.”*The bill proceeds. “ Your orator, Lewis, and your oratrix, Rachel, show, further, that *she renounced the provision made for her*by the decedent aforesaid, in his *last will and*testament, and *resorted to her dower,*or share *by law,*due to her *of the said*estate.”

“ That *her share*or *proportion*has *not yet been allotted to her*— for, though a suit was instituted *for that purpose,*yet it was not duly or regularly prosecuted: — though your orator, Lewis, and Rachel, are in possession of the land and part of the *slaves,*your orator, John, and your oratrix, Lucy R, are entitled, *by law,*to all *the residue*of *said decedent’s*estate, *after*the *legal proportion*and *share*of your orator, Lewis, and his wife» are duly *assigned and allotted*to them.”

The bill then controverts a claim set up by the executor of Luke Williams, (Thomas’ father,) to a negro, Adam, in possession of Thomas at his death: alleging that Adam had been given by Luke to Thomas: and insists that the hire, which the executor, Lyell, exacted from Hollqway for that slave, (which hire was secured by Holloway’s bond,) was unjust, and unnecessary, from the state of the assets.

Besides the prayers for an account by the executor, and for general relief, (and others not necessary to be noticed,) the plaintiffs pray “ that your Worships may decree, that the land, slaves, and other property of the *estate*of *Thomas Williams,*be *legally*and properly divided among your orators and ora-*539trixes: — that is, the *dower*of your oratrix, Rachel, be first *assigned*and *allotted*to your orator, Lewis, in *her right,*— the balance *of the estate*be delivered to your orator, John, and your oratrix, Lucy.”

The plaintiffs also tender what, in Virginia, are called forthcoming bonds; which are there a pre-requisite to the assent of an executor; which, of itself, (to say nothing of the state of the accounts, which showed that the debts were not yet settled,) shows that any possession by the parties, even if it extended to the negroes, *Edie*and Jenny, (which does not appear,) must have been in subordination to the executor, and cannot be referred to an assent on his part. 1 make these remarks here, to get that matter off my mind; and design them to apply to certain portions of the defence hereafter to be considered. I am now upon the Virginia record *•*and T take up that proceeding again, with a view to ascertain its purport.

In the answer of Lyell, the executor, put in the 23d of August, 1.796, it is incidentally argued, (and I take notice of this to show how every party to the record understood the rights of a widow who had renounced under a will, as related to slave property,) that if the negro, Adam, had not been given to Thomas Williams, by his deceased father, then that negro belonged to the father’s estate, and Thomas was entitled to one-ninth part of his value, as one of the father’s distributees, and of this share, Thomas’s widow could claim but one-third, (or one twenty-seventh part of the value ;) but if the negro was given, and became one of the *slaves of Thomas's*estate, the widow was entitled to one-third of him; and that *for life only.*

On the 29th of November, 1796, (West, the husband of Lucy, being then dead, as appears by a suggestion of that fact, at this time, on the record,) the cause was heard, by consent, “ upon the bill, answer, and exhibits,” (and, of course, without any evidence of facts not stated in them ;) and, “ after argument of counsel on *both*sides, and consideration thereof, it was *decreed*and *ordered*by the Court, that the *estate of the said decedent*(the negro, Adam, excepted) be divided between the legal *claimants, according to*law, by. Jonathan Fisher,” &c., “here*540by appointed Commissioners for that purpose, and that the said Commissioners make report how they have acted on *this decree,*in order that *it*may be made final.”

On the 30th of August, 1797, the Commissioners made the following report, in writing, dated 26th December, 1796 :

“ *In obedience*to a decree, issued from the Worshipful Court of Brunswick, at *November*Term, we, the Commissioners, nominated in the said decree, have made *the*division of all the *negroes*belonging to *the estate of Thomas*Williams, deceased, viz: In the *first*place, *we laid off*one-third part to *Rachel Holloway,*(wife to Lewis Holloway,) formerly relict, or *widow to the said Thomas Williams,*deceased, to *wit*— Jean, *Edie and Will******— also, one-third of the hire, &c. The *rest and residue*of the *negroes,*hire and rents of the plantation of *the said Thomas Williams,*deceased, to *Lucy Reese,*(wife to James Reese,† formerly widow to John West, deceased,) and *daughter to the said Thomas Williams,*deceased.”

*“*On consideration whereof,” says the record, “ it was ordered and decreed, that the said *report*be confirmed; and be made perpetual between the parties.”

And here the record ceases, so far as it relates to the partition.

It is manifest that the property, here divided, was claimed by the parties seeking the division, as *the estate of Thomas Williams ;*and no part of it as the estate of any other person ; and it was divided *as such,*according to their *claims*in it. And the case of *Muse*vs. *Edgerton,*(c) effectually concludes every party to the record and judgment of partition, from setting up any right, (though one were proved to have existed,) lying behind that record and judgment. And, therefore, neither Mrs. Holloway, nor the defendants, claiming under her and her husband, (who was, himself, a party,) can aver, that any part of the property allotted to her, was parcel of Sally’s estate — or was any other than Thomas Williams’s estate; or that any other *541incidents attached to the property received in the division, than such as attached to it as Thomas Williams’s, and were impressed by the judgment partitioning it as such.

Suppose that Sally’s share had been included in the division, (intentionally by the párties, though the Court was not advertised of their intentions, by the record,) and part, or the whole, of that share had been included in the allotment made to the mother : — and suppose that, after the judgment, Lucy had taken it into her head that the whole of that share belonged, of right, to herself, and not to her mother: — would *she*have been allowed- to disturb the judgment? ' Or, suppose she had raked up some claim entitling her to the whole 'estate, — as, for instance, a deed from the father, or some right to the property superior to that of, the testator himself, — and had come into Court with it: averring that the property,-which had been divided, partly at her own instance, as the estate of her father, never belonged to him, and thus sought to deprive her mother of it: would not the Court have refused her application? Would it not have regarded the record in the light of mutual conveyances between the parties; and treated it as if the daughter had conveyed so much property to the mother? Would not the judgment, to which the daughter was a party, have been a good-bar and estoppel, for the mother, against the new claim of the daughter ? Certainly. And if it is a bar and protection to one party, it must be so to all parties; and thus, as among them, and all their privies, the judgment, *while it*stands, is the exponent and measure of right of all who took or claimed under it.

The principle of *Muse*vs. *Edgerton*is, that the parties to the record are concluded by the record, from averring that any other right existed in them, or any of them, at the time of the proceeding, than the record itself imports.

If any relievable fraud, or mistake, entered into the decree, when it was pronounced, the party affected by it might have been heard, if he had come, within reasonable time, with a direct proceeding to *set the judgment aside;*but while it stands, I repeat, it is the standard to which every party, taking under it, *542must resort, for the measure of his rights; and cannot be set aside, or modified, collaterally.

And while here, I may at once observe, that this record silences another rather ingenious argument, much dwelt on in the defence. It was said, that even conceding the record in partition to have annexed the correlative tenures, for life, and remainder, to the slaves allotted to Mrs. Holloway : Yet it sufficiently appeared, that *before the judgment,*the parties were in possession of the property partitioned, under circumstances raising a presumption of assent on the part of the executor : and thus either West,* the first husband, or Reese, the second' husband, of Lucy, had actually reduced the remainder intended to be created in his wife’s right; and was the legal owner of it, *jure mariti,*when it was created; and that the remainder, when created, enured to him, and not to his wife.

Every fact, assumed as the foundation of this argument, is misconceived. It does not appear, that any party was in possession of these negroes, *Jenny*and *Edie.*The legal presumption is, that they were in possession of the executor. It does not appear that any party in interest had the custody of any negroes, except upon hire, or for the maintenance of the slaves, for which the executor made compensation. It does not appear that the executor had assented to the possession of the property, as legacies. The contrary appears. It appears that forth-coming bonds had not been given, as required by law, and that the debts had not been fully discharged.

But what I wish to observe, in this connection, — where I am considering the conclusiveness of the decree in partition,— is, that the record concluded both West and Reese, and Mrs. Holloway and Holloway, and all their privies, from averring that they, or any of them, had any legal vested rights in the property, before the decree. Their interests required the decree to perfect and adjust them ; and just as the decree did adjust them, do they stand, and in no other position. I give it for my *543opinion, that, if it had been a fact, indubitable, that West or Reese had such a possession as is contended for, and was the owner of the property, in law, his permitting it to be treated as still unadministered property of Williams’s estate, made it so : and subjected it to all the incidents attaching to it as such. His permitting it to be considered as unpartitioned property, laid it liable to all the incidents of the partition, growing out of the rights of the parties, to whom the right of partition belonged. The party entitled to partition with Mrs. Holloway, as the record said, and as the law declared, was Lucy Reese ; and no one claiming under that record, — as both plaintiff and defendants here do ; or under Reese, — as the defendants, in one aspect of the case, do: — can aver a title either in West, who was a party to the record, or in Reese, who was a party to the record and judgment.

I have said, on the authority of *Muse*vs. Edgerton, (d) that no part of the property can be considered as having been allotted to Mrs. Holloway, as distributee of her daughter, Sally Williams. Perhaps it may be more satisfactory to show, that there is no fact, incontrovertibly established in the case, which renders it necessary to conclude that Sally Williams ever took any interest under her father’s will: — and, of course, her share, as it is called, could not have been distributed. And if that is gotten over,— and we are compelled to assume that she had a share; — then to show, either that her mother took *no*interest in it, or, if she took an interest, it was a *greater interest*than she claimed, or had allotted to her, in the Virginia proceeding.

It will be seen, when I come to explain myself, that if Sally took a share of her father’s estate, and left that share, at her death, as her own intestate estate, for distribution; — it depended altogether upon the juncture of time at which her death (the time of which is entirely conjectural) happened, whether her mother was one of her distributees, or not. If the death occurred at a time when, by the law then of force, the mother was not entitled to a portion of her share, then the partition of 1797, and upon the terms which the plaintiff contends vrere impressed upon it, *544was exactly right. If, on the other hand, Sally’s death occurred at a time when, by force of law, her mother took an interest in her estate ; the law gave her an interest, which would have swelled her claims upon the aggregate estate of the property left by Thomas Williams, to an amount beyond what she actually claimed in the Brunswick proceeding: — a circumstance which renders it improbable that she ever took under Sally, — or she would not have stated her claim at the amount at which the record shews she did state it.

I have expressed myself badly; but what I have to say may, perhaps, explain my meaning. If Sally Williams happened to die (as Samuel is admitted to have done) before her father, all her legacies, as well as his, must have fallen into the residuary clause of the will, and gone to Lucy, the surviving residuary legatee. This clause would have carried to Lucy the wench, Jenny, who was given to Sally; and also, the wench, Edie, who was not specifically disposed of, or even mentioned, in the will. In that case, therefore, there is no ground of pretence, that Sally’s death occasioned any increase to her mother’s interest. This was clearly perceived by the defendants’ counsel. They, therefore, contended, that the death of this child occurred *after*that of her father: though there is no more evidence that she died after that event than before it.

But, let it be supposed that she survived her father, and thus took, under his will, not only her own original legacies, but an equal share with her sister in the lapsed legacies of Samuel. In this event, she left an estate, at her death, to be disposed of under the law applicable to intestate estates. But, as I shall now proceed to show, it depended, according to the law of Virginia, upon the length of the interval between the death of her father and her own death, whether her mother took an interest in it; and if she took a share, it would so have varied her claims, that she could not have stated them as she did in the Brunswick record.

By the Virginia statute of 1785, (e) it was provided, that *545personal estates of intestates, where there is no wife or children, “shall be distributed in the same proportions, and to the same persons, as lands are directed to descend, in and by an Act of the General Assembly, entitled *an Act to reduce into one the several Acts directing the course of*descents.”

The Act thus referred to, (and, by the reference, giving one rule for the distribution of intestate realty and personalty,) provided (f) (so far as it is necessary to quote it) that “where any person, having title to any real estate of inheritance, shall die intestate, as to such estate, it shall descend and pass in par-cenery, to his kindred, male and female, in the following course, that is to say :

1st. To his children, or their descendants, if any there be :

2d. If there be no children, nor their descendants, then to his father:

3d. If there be no father, then to his mother, *brothers*and *sisters,*and their descendants, or such of them as there be.”

Thus stood the law until 1792; and if Sally died while this rule of distribution was of force, inasmuch as she died in her minority, and without leaving husband, issue, or father, her share of her father’s estate, consisting of her own original legacies, and one half of Samuel’s lapsed legacies, must have been distributable under the 3d canon of descent, above quoted, between her mother and sister, each taking one-half.

But on the 8th December, 1792, a statute was passed, entitled “ an Act to reduce into one the several Acts directing the course of descents,” which, after re-enacting the three canons of the prior statute, (of the same title,) which I have already stated, proceeds, in its 5th section, to declare, “ that where an infant shall die without issue,” (as Sally Williams did,) *“*having title to any real estate of inheritance, derived by *purchase*or descent from the father, neither the *mother*of such infant, nor any issue which she may have by any person, other than the father of such infant, shall succeed to, or enjoy, the same, or any part *546thereof, if there be living any brother or *sister*of such infant, *on the part of the*father, or any brother or sister of *the*father, or any lineal descendant of either of them; saving, however, to such mother any right of dower, which she may claim in the said estate of inheritance.” .

This clause is followed by another, providing for the maternal relations, in preference to the father of the infant, when the infant’s estate has been acquired from the mother.

Then, on the 13th of the same month, another statute was passed, in the 27th clause of which it is provided, (in cases where there is no wife or child,) that the whole surplus of intestate personal estates, after the payment of debts and funeral expenses, *“*shall be distributed in the same proportions, and to the same persons, as lands are directed to descend in, and by,” the statute of the 8th, just quoted.

The operation of these two statutes was postponed to the 1st October, 1793. *(g)*

From this statement of the statute law of Virginia, it appears manifest, that if Sally Williams survived her father, and took, by purchase, under his will, her own legacies, and half of Samuel’s, and then died before the 1st of October, 1793, her interests, under his will, were equally distributable between her mother and sister; but-if she died on or after the 1st of October, 1793, the sister took the whole of it, in exclusion of the mother.

She may well have died between the 1st of October, 1793, and the institution of the Brunswick suit, in 1795 — a period exceeding two years. In that event, the state of rights, as between Lucy and her mother, in that partition, would have been just what they would have been had Sally died before her father; which, we have already seen, would have left them precisely as they are stated in that record.

But if Sally died after her father, and before the 1st of October, 1793, (and only in that case,) her mother had an interest in her share of her father’s estate, but the possession of that *547interest would not have left the proportion between her rights and those o'f Lucy, such as .they both concurred in stating it, in the Virginia record. The statement there is, that the mother was entitled to have *one-third*of the property assigned to her, to be held by her by *some*tenure, (the nature of which tenure is here perfectly immaterial,) and that Lucy was to have the balance, of *two-thirds.*

Could that statement of claims have been made, if it was intended to include with the mother’s share of the original estate, her share of Sally’s portion ? Could it have been made, if Sally had died at a time when the Act of 1785 operated on the distribution of her estate ; casting one-half of it upon the mother and the other upon Lucy ? - Impossible. The mother must have claimed an interest in *far more*than *one-third*of the aggregate estate to be divided ; and would certainly have been very far from concurring, as she did, in the statement that Lucy was entitled to *two-thirds.*

Now, these parties certainly knew, when they filed their bill, the time of Sally Williams’s death : and they then recollected it far better than Mrs. Holloway did, when, in her answer to the bill of 1819-21, (a quarter of a century afterwards,) she said loosely, that Sally died in her minority, without pretending to specify the time: or than the plaintiff did, at the filing of her present bill, (more than half a century after the event,) in which she says, as loosely, that her sister died shortly after her father. If this is evidence, it is very loose evidence : and it is the only evidence I can find, from beginning to end, touching the time of Sally’s death.

It is certainly very extraordinary that Mrs. Holloway, to whom it was important to assign a date to the death of this daughter, which would have given herself an interest in her estate, did not undertake to do so in her answer, to which I have referred. Are we to conjecture such a date, when she herself observed a perfect silence ?

But if she had assigned a date advantageous to her own interests, that would not have sufficed. Surely Mrs. Holloway, *548or any one coming in under her, (even if at liberty to dispute the record, and to impregnate the property she took under it with a title different from that which it purports to convey,) must *prove*the facts upon which that title depends — and the proof must be *reasonable*and *convincing.*There is no such proof here, and every presumption must be the other way: because every presumption should be raised to support the record made by the parties, and under which they claim. In that record, the parties entirely disregarded-Sally’s interests in the estate, and we are to suppose that they did so not without reason ; and that their reason was either that she never took any share of the estate, or, if she did, her death cast the whole of it on her surviving sister. They omitted to take notice of her, or her interests, probably because, upon the state of facts which they knew to exist, the- same legal inferences arose as if she had never existed, or had never been named in the will, and every thing given by it to her had been given directly to Lucy: inferences corresponding to those which the law would have raised, if Sally died either before her father, or after September, 1793.

This brings us to consider the second question, with a view to the solution of which we are perusing the Virginia proceeding : to wit, Did Mrs. Holloway take a life estate in the negroes allotted to her?

The final order of the Court was a simple confirmation of the report of the Commissioners — and that report merely allotted the property, without specifying the tenure under which it was to be held. But it refers to a previous decree, and purports to be *in obedience to it:*which decree declares that the property is to be divided, *according to*law, between the *claimants*before the Court. This decree is provisional; and intended to be so. But by its terms, it (the decree of November, 1796,) is to *become*final, and to be *the decree in the case,*if a suitable return be made by the Commissioners: a return to satisfy the Court that they had made a division *in obedience*to it. A return having been made which is satisfactory, the return is *549confirmed ; and is made perpetual evidence of the division between the parties.

This is the decree. If there is any thing equivocal in it, are we to stop there, and .give it no effect beyond those things that are explicit, and clearly expressed? or are we at liberty to go into the record for its construction ?.

Is there anything in *Muse*vs. *Edgerton,*to prevent us from resorting to .the record for the interpretation of the judgment ?

As I am in the habit of saying, there are different minds— minds differently constituted — and there will always be a difference of opinion upon certain classes of subjects, and I shall not be surprised if I am thought to be wrong, when I say that, in my opinion, there is nothing in *Muse*vs. *Edgerton*to prevent the pleadings being looked into to help out the Yirginia decree, and that we are bound to look into them in furtherance of forensic justice. (h)

*Muse*vs. *Edgerton*says, you shall not look behind the record, for the purpose of raking up a right of which the record does not treat or take notice, and bringing that in opposition to the right involved in the record, and decided by it. What is proposed here is not to go behind the record, but into it: not to search for a right not noticed in the record, but to find what right it does notice : not to look for, and bring forward, a right contradictory to that; but to examine the features of the very right recorded in the pleadings; in order that we may not abridge it, but give it that efficacy which we are to suppose the decree in the case, properly understood, intended to give : — to see, in this case, what the nature of those claims were, (as to which, be it remembered, there was no conflict between the parties, but a perfect concurrence,) for the purpose of ascertaining to what law it was the parties, and the Court, had reference, when the one asked, and the other decreed, that the partition to be made should be according to the law applicable to the case stated and agreed on.

*550If the decree of 1797 had adjudged that Rachel Holloway, widow of Thomas Williams, was entitled to that portion of his estate, the subject of partition, to which a widow was by statute entitled, *who had renounced under her husband's will,*and that Lucy was entitled to all the balance of that estate, and ordered it to be partitioned accordingly; and the Commissioners had made the division they did, and their return of that fact had been confirmed, and made perpetual : — would that have been a decree giving an absolute right, and not a less estate, to Mrs. Holloway, in the negroes allotted to her ?

If it would not, then this decree is substantially such a decree as that, if it be properly examined by the record to which it is annexed; if the whole of the record, and not a part of it, be examined; and if it be examined with a view to support, and not to defeat, the rights presented and adjudicated.

Look at what the Court says. It directs the allotment to be made among the *claimants.*The reference is not to the persons, but to the persons *as claimants.*The allusion is to the *claims*set up and stated by them. Then the allotment is to be made to these claimants, (the owners of these claims — which are allowed,) according to law — according to the law applicable to the claims thus allowed — with the incidents attached by law to property to be put into their hands, under such claims.

There is hardly a judgment in any Court — very few in this, in which I sit — that does not lean for support upon the pleadings.

When it is necessary to plead a judgment or decree, in bar, you must go behind the formal paper, so called, into the pleadings, to see what right has been adjudicated, and ascertain whether it is the identical right now, again stirred.

And in pleading the bar of a former judgment, the familiar practice — and the necessary practice — is to introduce the plea by a brief, but substantial' reference, to the pleadings. And if the record may be resorted to, and explored, for the purpose of defending a right held under the judgment, why may it not be resorted to to qualify, limit or give character to the right so held?

*551I have alluded to the decrees of this Court. No man has more constantly or more earnestly inculcated upon the practitioners before the Court, the necessity of careful and accurate pleadings, orders and decrees, or more vigilantly watched the orders passed by counsel. But (I say it with regret) miserable would be the condition of our citizens, if the indulgence I would extend to this Virginia decree were not allowed to our own, and if bills and answers and exhibits were not allowed to explain and give character to decrees.

When a claim is advanced in a pleading, and not controverted in any other pleading, and the decree allows it, there is a tacit reference by the decree to the nature of the claim set up and admitted, and the claim is allowed, with the attributes and qualities incident to it. This is not so, if the decree expressly limits or modifies these incidents, or annexes any condition to them. But it is so, if the decree simply allows the claim, and especially, if, as this decree may possibly be construed, (though *that 'particular construction*is doubtful,) it allows the claim to be enjoyed and held according to law. Thus, if distributees come in for partition of land, and the widow of the intestate comes in with them, in an *ex parte*proceeding, asking that her dower be laid off to her ; and the Court says, “ let a division be made according to law, among these párties,” it means let the division be made which they have asked for in their record ; and if Commissioners lay off a portion to the widow, without saying that they have laid it *off*as her dower, or for life ; and the Court confirms the division; does the widow take the portion of land laid off *in fee 7*Again, if any one of the distributees is a married woman, and join with her husband in the application, and, under such a decree as I have stated, Commissioners lay off a portion to *her and her*husband, (a very common case,) and their return, stating that fact, is confirmed ; does that land cease to be the wife’s *inheritance,*and become the property of husband and wife, as *tenant in the*entirety ? No. It is still the wife’s land; and, as such, though, upon a further proceeding, it be even sold by order of the Court, the money arising from *552the sale in Court is still considered *her*land, until it be disposed of differently.

Now, look to the Virginia record, keeping these remarks in mind, (without the benefit of which, I repeat, the proceedings of this Court cannot be upheld, but must work an incalculable sacrifice of interests,) and it appears to me quite plain, that the intention of what was done was to give Mrs. Holloway a life estate in the slaves allotted to her.

The case stated by her is one that could not have been stated with any other intention than to make a claim for life of whatever slaves rvere to be allotted to her.

She had, by her previous renunciation, reduced herself to a condition in which she could claim nothing personal under the will; and no interest in *slaves*under the law, *but for life.*And she comes in, and expressly states that she had renounced, and was in that condition; and asks to have allotted to her what the law, in that condition, gave her. She laid the will before the Court, and concurred in the statement, that when her portion, which she called dower, (in the Virginia acceptation embracing slaves,) should be laid off, Lucy was entitled to every other interest in the estate.

Could the Court, or could she, or any party to the suit, mistake her meaning? Did Lyell, the executor, misunderstand her ? See what he says in relation to Adam. Her claim is not only stated as a dower or life claim; but she prays for its allowance as such.

Pray, how, but as dower, could she be entitled to any *slaves*after her renunciation ? One negro was given to her by the will, but she had renounced the legacy. I suppose that renunciation reduced it to the condition of a lapsed legacy; and a right sprung up under the residuary clause, the effect of which I have already considered. And if the renunciation reduced that negro to the condition of intestate property, and if the residuary clause could not carry it, because the renunciation occurred after the death of the testator, and it therefore remained intestate ; yet, as intestate property of *Thomas Wil-**553*Hams’s estate*— in which light it was proposed to divide it— whatever right the widow could claim in it was only for life. Such was the law of Yirginia. *(i)*

That negro happened to be included in Mrs. Holloway’s allotment by the Commissioners. But how came *Edie*(who passed to Lucy, as I before explained, as legatee,) to be so allotted ? Why, surely, the mother’s only claim upon *her*was a dower claim.

And so of *Jenny,*and upon the same principles.

I am to construe the Yirginia record as it would have been construed the very day it was completed — without regarding the time that has since elapsed, or giving Mrs. Holloway any advantage of her long possession under that record: for it means now what it meant then, and the very question is, whether that possession was the possession of a life tenant or of an absolute owner — and that resolves itself into the question, was a life tenancy with remainder declared by the record, or not ? And, in view of that proceeding, I ask what must have been the answer of any party, or of the Court, or of any other person in the world, if they had been asked, as Rachel walked out of Court, with the decree in her pocket, what right she had got in the negroes assigned to her ? Why — could there have been two opinions? And yeti am asked to put a construction upon this judgment, repugnant to the understanding of all mankind. Is that a reasonable construction? It might be a reasonable construction of the decree, without a context. But, with the pleadings as. a context, it would be unreasonable and shocking. It would make the proceedings of the Court — intended to advance justice and administer the law — in this instance — where its decree on its face professes to apply the existing and well known *law*— the instrument of trampling it under foot. It would make it the instrument of fraud. What a shocking fraud it would have been upon Lucy, whom her mother had induced to concur in her claim upon the slaves, by representing it as a claim for *554life, if her mother, after the decree was obtained, had instantly turned round upon her, and asserted an absolute title; — with no better apology than that the Court, in its decree, had not repeated what she, herself, had stated in her bill ?

I ask, if after Mrs. Holloway got possession under her assignment, she had, in some short time, attempted to devastate the property, or done any act inconsistent with the claim of Lucy, as remaindress, and she had applied to the Brunswick Court for the protection of her rights in the property; is it to be supposed that that Court would have told her she had none? And just as that Court would have construed its decree, I must construe it.

Neither the decree, nor the return of the Commissioners, nor the order confirming it — neither of them — says that the negroes allotted to Mrs. Holloway were to be held absolutely — anymore than they say they are to be held for life. They are 'silent (to make the most of it) as to the tenure. And yet, because they are equivocal in this respect, I am asked to abstain from ascertaining their true meaning from the record, and to arbitrarily select one, in preference to another, tenure, where there is a perfect silence as to both.

If I had received the *written declaration*made by Lewis Holloway, on the 20th of December, 1798, after he had reduced his wife’s life estate into possession, and became the legal owner of it, there could be no doubt, in this case, in any mind. I refer to his declaration, on the eve of his removing the slaves from Yirginia to Edgefield. But, upon the proof offered, I could not admit the paper. I incline, however, to the opinion that it must have been proved before Chancellor DeSaussure, who pronounced his decree in June, 1822, upon the bill of 1819 — 1821.

Be that as it may, the decree in that case, which binds every party before me, either as parties to it, or as privies to those who were parties, establishes the Yirginia decree, and gives it a partial construction. It declares that whatever was taken by Mrs. Holloway under it was for life; except .so far as any share of *555Sally Williams’s may have been included. Whether such share did enter into the allotment is not decided, but reserved.

The proceeding upon which that decree was given was a bill by Reese, for the protection of the remainder : and the decree was for the preservation of the property. The Chancellor says, “the proceedings exemplified from the Court in Virginia, show that the property in question came from the estate of Mrs, Reese’s father, the first husband of Mrs. Holloway, *and was allotted to her for life,*consequently, they” (referring to Reese and wife) “ have rights which will come into operation at her ” (Mrs. Holloway’s) “death.” This is sufficient; but the Chancellor proceeds : *“*Again, when Mr. and Mrs. Holloway wanted to migrate to the South, they asked and obtained leave *to*remove the negroes from Virginia — which, it seems, was necessary. All this goes to establish some rights, in remainder, in complainants.”

It was contended in that case, as in this, that Sally Williams’s share was included in her mother’s allotment: and the Chancellor, without investigating the fact, or its precise effect, replied : let the fact be as stated, still, under the decree by which Mrs. Holloway received the property, a life tenure was created — she took for life ; and that tenure *must*apply to every part of it, except vihat might be shown to have been derived from Sally Williams. Take it as you will, Reese and wife have interests, in remainder, in some of the property; and, until the supposed share of Sally is separated, the whole, as one body, must be protected. And he protected it accordingly, *(k)*

I say this decree establishes the construction of the Brunswick decree, as to the most important question in this case — the tenure under which Mrs. Holloway recovered the slaves allotted to her. The point reserved, I have now examined, and have attempted to show there is nothing in it.

Then, my conclusion is, that Mrs. Holloway’s interest in the women, *Jenny*and *lidie,*and their increase, was the interest of *556a tenant for life: to which was attached a remainder expectant, in the plaintiff, Lucy Reese.

Her right to reduce the remainder into possession accrued to her by the death of Mrs. Holloway, which took place the 10th of December, 1847: and she filed her bill the 23d April, 1849.

In my judgment, her bill must be sustained, unless her rights have been extinguished, or barred, in some of the different ways suggested in the answers, and insisted on at the hearing.

In the first place, a bar is insisted upon, which, it is supposed, arose in consequence of the removal of the negroes from Virginia, in 1798 or 1799.

It was replied that such bar, if one took place, was removed by the decree of 1822 : and I think so. But, as the point was pressed, I shall proceed to state the bar supposed to exist: and make some observations on it.

There is a Virginia statute, passed in 1792, *(l)***which went into operation, the 1st of October, 1793, (m) and is in the following terms:

1st. *“*If any person or persons, possessed of a life estate in any slave or slaves, shall remove, or voluntarily permit to be removed, out of this commonwealth, such slave or slaves, or any of their increase, without the consent of him, or. her, in reversion or remainder, such person, or persons, shall *forfeit*every such slave, or slaves, and the full value thereof, *unto*every such person, or persons, that shall have the reversion or remainder thereof — any law, custom or usage,” &c.

2d. *“If way female,*possessed as aforesaid, shall be married to a *husband, who shall remove,*or voluntarily permit to be removed, out of this commonwealth, any such slave, or slaves, or any of their increase, without the consent of him, or her, in reversion or remainder; *in such case,*it shall be *lawful*for him, or her, in reversion, or remainder, to *sue for, recover*and *possess*such slave or slaves, so removed, for and during the life of the said *husband:*— who shall, *moreover,*be liable to the action *557of the person, or persons, entitled to the reversion, or remainder, thereof, for the *full value*of the slave, or slaves, so removed.”

It was contended that Holloway’s removal of the slaves, in 1798 or 1799, was without license of the remaindress, or her husband; that thereupon a right to the life estate vested in her; that this connected itself with her expectant right, thus forming one estate; and the permitting a possession, in opposition to that estate, barred her claim here, by the statute of limitations.

The case of *Cole*vs. Broom, *(n)***quoted in the argument of this point, decides nothing here. T’hat case arose upon the 1st clause of the Virginia statute, the life tenant in that case being a *femme sole,*and *sui juris.*My decision is to be made on the 2d clause, which contemplates a life estate existing in a *femme covert.*

I suppose that the license required for the removal must be the license of the husband of the remaindress, if *she*be also *covert.*But, whoever is to give it, the statute does not require any particular formality, by which it is to be given. I take it, that he who does not object (under either clause of the Act) permits : and that, unless the suit — authorized to be brought by the person in remainder, under either clause — be instituted, it is to be presumed that the removal was approved by him. When a removal has taken place, and suit is brought to enforce the penalties imposed, then — a removal being unlawful unless permission has been given, and the permission being a positive, and not a negative fact — the burden must be upon him who wishes to defend himself against the consequences then threatening him for removing the property, to produce proof that he has committed no offence — in other words, he must prove a license. And it may be that the defendants at the bar can now prove an authority for the transfer of the negroes to this State : and have now, at their command, evidence to establish that the life estate never was forfeited — which they now say was forfeited, and became conjoined with the remainder — because that *558assertion, they suppose, will give effect to the bar of the .statute, and so answer their purposes here.

But there is an entire misconception of the nature of the right which an unlawful removal gives, under either clause in the statute on that subject.

The first clause does use the *word, forfeit*— the life tenant shall *u forfeit every*such slave” “unto the remainder man.” Does his *title,*as life tenant, cease, *ipso*facto, and *eo instanti,*upon the removal ? Suppose the remainder man forgives the offence, and does not sue, is *he*(the remainder man) nevertheless the owner of the life estate? or is it in him, and out of the life tenant, though the property be in possession of the latter? Is not the law notoriously otherwise ? Would not a conveyance from a life tenant, under such circumstances, be good to any person in the world, unless avoided by the remainder man ? This could not be the case, if the life tenant had *no*title. The fact is, that the title is in the life tenant, until, by suit, it is taken out of him. It is not void, but voidable. And there can be no *life estate title*in the remainder man, until he acquires it by suit. The right to acquire it is a *chose.*

There is still less reason for insisting on a *forfeiture,*(as transferring title,) under the second clause than under the first. The first does use the word; the second does not. The right of the remaindress, here, was emphatically a *chose,*and nothing more.

But that is not all. If her husband had sued, either with or without her, and recovered the negroes, there are two reasons, in law, why that recovery would not have merged the life estate and remainder: and there are more reasons than these in Equity.

The first reason is, that the interest which ,he could have recovered from Holloway, under the second clause of the forfeiture Act, was not of such a nature as must, of necessity, have united with his wife’s remainder; and, as facts prove, it never could have united in this case.

Holloway was the offender: he had his wife’s life estate *559in him — an estate which would go to his executor (for the term of *her*life) if he should predecease her, The statute says, that, for *his*offence *he*maybe deprived of the negroes, for and *during his own life,*and no *longer*— ufor *and during*the life of the said husband.” Now, if Reese had sued Holloway, and recovered, and got possession of the negroes, *for and during Holloway's life,*that would have possessed him of a *life estate,*to be sure, but not of *that life estate*to which his wife’s remainder was annexed. Upon Holloway’s death, the negroes would have reverted to his executor, to be administered (as they actually were) for the unexpired life of his wife: of which interest the statute did not deprive him.

And, I may remark here, that as the statute would not have reached the property in the executor’s hands, it could not reach it when, by administration, the *executor's title*was transferred by him to Mrs. Holloway herself. She was in of a new estate, unaffected by the statute, being the unexpired right of her husband, to which the terms of the Virginia statute do not extend. And, as I shall show hereafter, the right to take that from her, by an action against herself, for the *mere retention oí*the slaves beyond the limits of Virginia (if that was an offence against the statute as to the *removal*of slaves) was barred; and the right to the life estate confirmed in her, as such, but no more.

The second reason is, that if Reese had got in the life estate by suit, it would have been no belter than if he had purchased it. And the case of *Caplinger*vs. *Sullivan**(o)***shows, that where a purchase of the life estate is made by the husband of-a remaindress, the life estate and remainder do not coalesce, but continue separate estates. If the husband die during the life tenancy, his executor necessarily takes the residue of that estate which is yet to run, and the wife shall have the remainder against the husband’s executor, or the husband’s assignee, if he has conveyed away the property. In the case I have quoted, the husband had purchased in the life estate, and had actual *560possession. He then sold and delivered the property (slaves) to Caplinger, for valuable consideration ; yet, at law, Ann Sullivan, the rémaindress, recovered from Caplinger, upon the accrual of her remainder, which happened after her husband’s death, and the recovery was sustained in the Court of Errors, upon very full consideration, and reference to authorities. It may be objected, that, in the case quoted, the purchase of the husband was in his own right, and that it may be conceded that a life estate thus held by a husband, will not unite with the remainder of the wife : — there is not an union of rights in the same person : — and it may be contended that, if Reese had sued under the forfeiture Act, and recovered, the suit must have been brought, and the recovery had, in his wife’s right; and that such a recovery would have united the life estate and remainder in her, to which united estate the statute of limitations may be applied. I have great doubt whether Equity would so consider the matter — whether, where the husband, by his own act, or by an act in which, (having the control of his wife by coverture,) he joins her name, and gets in the life estate, the Court would allow to such a proceeding an eifect to destroy the wife’s right by survivorship, and to confer her remainder upon the husband. I think not — unless, upon a proceeding in this Court, the wife was examined, and a full equivalent secured to her.

I may be going out of my way here, when I refer to what has been held upon points nearly analogous. In *Hall*vs. *Hu-gonin,*(14 Sim. 595,) (p) where stock was standing in the names of trustees, upon trust for A., for life, with remainder to B., a married woman, and A. assigned his life interest to the remaindress, Sir Launcelot Shadwell, upon her consent, ordered the fund to be transferred to her husband. This was supposed to be an important practical qualification of *Purdew*vs. Jackson, (hereafter to be mentioned,) in which the protection due to the reversionary interests of the wife was well considered. And it *561was thought by some, that the effect of the ruling in *Hall*vs. *Hugonin*was, that if the prior interests were assigned to the wife, so as, in effect, to make her interest a present one, the husband might then reduce the fund into possession, or might, by assigning it, enable his assignee to do so. “ The decision, however, of the Lord Chancellor, in *Whittle*vs. *Henning,*shews,” says Mr. McQueen, “ that this opinion was erroneous.” (q) (See that case, commented on by McQueen and by Bell.)

These observations are, however, unnecessary here; and are only made that they may be remembered when we come to consider other points of the case, to which they have a stricter application. There is no necessity for them here, where the inquiry relates to the bar of the statute : because, manifestly, if the position contended for be sustained, and any act or omission of Reese be allowed, by the Court, the effect of coupling the life estate and remainder, *so as to destroy the wife’'s remainder,*then, the very right upon which she comes into Court here is extinguished, and there is no need of the statute of limitations to bar it.

If the *laches*of her husband to enforce the forfeiture, had not the effect to extinguish the remainder, then it subsists, and is not barred.

But though the remarks which I have made were not strictly called for here, yet, if they be borne in mind, they will serve to meet another point in the case, yet to be touched, relating to certain deeds executed by Reese, and Reese and wife.

In concluding upon the statutory bar, the better opinion is, that no bar can arise in consequence of a non-enforcement of the forfeiture, even under the first clause : (r) that the statute confers a *privilege,*for the protection of the remainder man and the *preservation*of his estate ; — which it would be a violation of its true intent, to turn against him for the destruction of his interests. The right to *exact the forfeiture*may be barred *562by a failure to exact it within four years. But the effect of that bar is simply to confirm the life estate in the life tenant, leaving the relations of life tenancy and remainder, and of the respective owners, just as they were before. It would be very strange, if the indulgence of a remainder man to take away the life tenant’s estate, should have the effect of transferring his own to him. This would be rewarding him for his offence : and such a construction cannot flow from a true conception of the spirit of the statute, which proposes to punish, and not reward its violators. I leave this point.'

Then it is said, that the decree of 1822 vested the remainder of the plaintiff here, in Reese, the plaintiff there.

That decree I have considered to have concluded the *defendants*in that case ; and to have concluded the defendants here, who are all either the same persons, or privies to them. But how can it conclude this plaintiff? If she was no party, the decree does not bind her, as between herself and husband. If she was a party, (one of the “ complainants ” spoken of in that case,) her right was established and declared to be in her: and, as the surviving plaintiff, she is entitled to the benefit of the decree, as in *Muse*vs. *Egerton.*

We come now to consider the series of deeds, executed after the decree of 1822, and between the years 1824 and 183-, (during the existence of the life estate,) some of them by Reese alone, and others by Reese and wife. They are exhibited in the answers ; and my notes of evidence will show that some of the deeds, in which husband and wife joined, were not proved. I do not think it necessary, however, to discriminate, because, in my opinion, none of the deeds, of either class, were effectual assignments of the plaintiff’s expectancy.

These instruments may be considered in the light of:

1st. Assignments of Reese, the husband, alone.

2d. Assignments of Mrs. Reese, the wife, alone: (though, during the coverture, she made none such.)

3d. Assignments by husband and wife, conjointly.

The power of Reese to convey, must here arise from his *563having reduced, *jure mariti,*the expectancy of his wife, so as to make it his, thus destroying her right of survivorship: or must consist in the right of a husband to assign such expectancy.

I have already remarked upon the various ways in which it has been suggested that he might have acquired a property in the expectancy: — such as, that he was in possession when it was created; that he reduced it by refusing to sue for the life estate, (that is, that the now-reduction of the life estate was a *reduction*of both it and the remainder, arising in virtue of ap union of the two, effected by not bringing them together !) and lastly, that the decree of 1822 gave him the expectancy.

I do not think it necessary to add anything to what I have said upon any one of these sources of property in Reese, but the last — -the decree of 1822.

If Mrs. Reese was a party plaintiff, as I have observed, that decree establishes her right, claimed here. But if she was no party, and Reese, acting by himself, got to himself a decree, entitling him to her reversionary rights, at a time when he was not entitled to reduce them; will it bear argument, that no such under handed proceeding will be allowed, in this Court, (and especially when its decree is attempted to be made the instrument,) to deprive her of her right by survivorship *1*(s) If a husband, while his wife’s hands are tied by her coverture, and while she is entirely under his control, be allowed, of his own accord, and solely by his own act, to anticipate his rights over his wife’s property, and deprive her of her rights in it, then the profession of this Court, that it protects the rights and interests of married women, is a mockery. Where a husband desires to assign, or obtain to himself, his wife’s expectant separate estate, or to get any privilege over it, he must make her a party in Court, and she must be examined, and the object of the transaction must be shown to be advantageous to her; or it will not *564be allowed, *(t)***So the case must stand as between Reese and his wife. These defendants, taking Reese’s conveyance, which can be supported only by the decree referred to, must take notice of it, and of its imperfections, and can no more insist upon it, as against Mrs. Reese, than Reese himself.

The true question is now at last reached; and it is this:

Had Reese, the husband, who died before his wife’s remainder fell in, any power to assign it away for her ?

A husband, if he survives the actual accrual of his wife’s expectant personal estate, may reduce it into his possession, and thereby render it his own property.

He may assign the expectancy before he has the power of reduction; but the assignment will only be good to the assignee, provided the husband lives until the accrual happens, and is then in a situation enabling him (if he had not assigned) to reduce the property. His assignment will not operate to transfer the property, until he comes into that situation.

There are other doctrines in relation to assignments by husbands, who, after an assignment, come into a situation to reduce: but it is not necessary to notice them here ; because Reese did not live until the expectancy fell in; and therefore never attained the power of reduction.

The positions laid down are sustained by the elaborately considered cases of *Purdew*vs. Jackson, (1 Russ. 1,) and *Hon-ner*vs. Morton, (3 Russ. 65,) which were commented on and approved in our own case, of *Matheny*vs. *Guess,*(2 Hill Ch. 66-7.)

The inefficacy of a husband’s assignment, made before he acquired the right to reduce, and who did not live to acquire that right, is also ruled in *Caplinger*vs. *Sullivan,*(2 Humphrey’s Rep. 548,) before mentioned; in which the cases of *Purdew*vs. *Jackson*and *Honner*vs. *Morton*were also referred to. See also *Browning*vs. *Headly,*(2 Robinson’s Rep. 370-2 and *passim.)*

*565Indeed, whatever authority may, at any time, be supposed to have existed to the contrary, this is the settled doctrine. What is loosely said in *Terry*vs. Brunson, (v) is inaccurate in words, hut not in meaning. The words *vested*and *contingent*were intended in the sense of *accrued*and *yet to accrue.*

But it was argued that the effect of Reese’s deeds to the defendants, (who were in of the estate,) made a case substantially the same as if the life tenants had first surrendered the life estate to him — (which, it was contended, would have produced a merger of estates, and enabled him to reduce the remainder,)— and had then taken his conveyance of all interests in the property.

In the first place, I do not agree that their surrender would have given him any right extending beyond the life estate surrendered. He would have become the owner of it in his own right; and that right would not have united with the remainder of his wife; nor enabled him to anticipate the proper time tor its reduction.

In the next place, any contrivance, on his part, to circumvent or destroy, by indirection, his wife’s right of survivorship, would be discountenanced in this jurisdiction ; and any deeds obtained from him, by those whom the transaction itself must have advertised of the fraud, could not be allowed to confer any benefit on them to her prejudice.

In the last place, the deeds, which Reese executed, did not, in terms, unite the life estate with the remainder. They did not purport to convey to the defendants, respectively, the remainder in that part of the property in their hands, respectively, but to convey to each grantee one *undivided*sixth part of the estate in remainder.

The property conveyed did not, therefore, come in apposition with the property in the hands of the grantee ; — the remainder with the life estate. The conveyances enabled each grantee to claim the remainder, carried to him by his deed, out of the whole *566body of negroes, (indeed that was exactly his claim and remedy,) or out of those in the hands of others, as well as out of those in his own hands; and he must do so, if what were in his hands amounted to less than one-sixth of the whole gang. The supposed merger, therefore, never took place; and its legal consequences, contended for, are merely imaginary.

All these observations apply equally.to those deeds which Reese executed with his wife, so far as relates to their frame, and to *his*power to impart efficacy to them. These deeds are duplicates of his own deeds.

This brings us to the consideration of them. I proposed to consider them in reference to the power of the wife alone; and, again, in reference to the power of husband and wife acting conjointly.

2. Now, if Mrs. Reese had executed deeds by herself, while under coverture, the cases of *Ewing*vs. *Smith,**(w)**Magwood*vs. *Johnston,*(x) and *Reid*vs. *Lamar,**(y)***and many other cases in this State, declare the deeds would have been null. A married woman can make no contract, or conveyance, binding her separate property, whether enjoyable at the time or expectant, further than the instrument, creating her interest in it,, enables her: — excepting, of course, her inheritance, or her dower, in lands, which she has statutory authority to convey. The case last mentioned, *Reid*vs. *Lamar,*attempts to show that this doctrine was not without authority in England, prior to our separation from her.

3. It would seem, upon principle, that if deeds executed by a wife, for the transfer of her separate estate, as to which she has an equity against the husband’s right of control, are void; those executed by her with him should be doubly void. And whatever may be thought of our doctrine, as applied to her separate property, *not reversionary;*there ds no doubt that the doctrine is true, and upon the best authority, everywhere, in relation to property *reversionary at the time of the conveyance:**567and. all the cases treat the deed of husband-and wife, in such a transaction.as that, as the deed of the husband alone. He shall not be allowed to anticipate and destroy- her expectancy, by an act done by her, in conjunction with himself, and under his legal control. He shall not, by any Contrivance, — either by accepting a surrender of the life estate to himself, or otherwise,— obtain the advantage of an anticipated enjoyment of the remainder, or the power of disposing of it for his own benefit; as Reese attempted to dispose of this. If a disposition is to be made of it, it must be for the wife’s benefit; and, to establish that, she must be brought before the Court that protects her interests, and examined : and then, only for her benefit, can the transfer be made, *(aa)*

The doctrine loosely expressed (and in very ungrammatical terms) by me. in *Terry*vs. Brunson, *(bb)**is*well supported : that the reversionary interests of the wife will survive to her against the husband’s assignment, if he dies while those interests remain reversionary; and that the very ground upon which Equity fakes notice of her interests, in such cases, obliges the Court to protect them against the assignment of the husband, though made with her concurrence, and for a valuable consideration received by the husband.

Prof. Story, speaking of the favorable light in which rever-sionary choses in action, and other reversionary equitableinterests of the wife, in personal chattels, are regarded, says: (cc) “noassign-mentby the husband, even with her consent, and joining in the assignment, will exclude her right of survivorship, in such cases. The assignment is not, and cannot, from the nature of the thing, amount to a reduction into possession oí such reversionary interests : and her consent, during the coverture, to the assignment, is not an act obligatory upon her.” He proceeds with a remark which may be liable to modifications ; but which it is not neces*568sary to consider. His observation is, that “ in such cases, the wife’s consent in Court, to the transfer of such reversionary interests to, or by her husband, will not be allowed.”

In *Hornsby*vs. *Lee,*(dd) the wife’s interest assigned was a *contingent*reversionary interest in a fund dependent on the death of her mother. Husband and wife joined in an assignment of it, during the mother’s life. The husband died in the life time of the mother. On the death of the mother, a contest for the fund arose between the remaindress and the assignee; and the former prevailed.

*Purdew*vs. Jackson, (which is cited, as I have stated, in *Matheny*vs. *Guess,)*was heard by the same Judge who had previously decided *Hornsby*vs. Lee, and the circumstances of his decision in that case rendering it proper, he, on this latter occasion, went into a re-investigation of the whole subject.

The case was twice argued and elaborately considered, and it was ruled, that where husband and wife, by deed, executed by both, assign to a purchaser, for valuable consideration, a moiety of a share of ah ascertained fund, in which the wife had a *vested*interest in remainder, expectant upon the death of a tenant for life of that fund, and both the wife and tenant for life outlived the husband, the wife is entitled, by right of survivor-ship, to claim the whole of her share of the fund, against the special assignee for valuable consideration. The Master of the Rolls closed his elaborate examination of authorities with the annunciation of his opinion, that all assignments made by the husband (the wife’s joinder making no difference) “of the wife’s outstanding personal chattels, which are not, or cannot be, then reduced into possession — whether the assignment be in bankruptcy, or under the insolvent Acts, or to trustees for the payment of debts, or to a purchaser for valuable consideration— pass only the interest which the husband has, subject to the wife’s legal right by survivorship.”

Sir Thomas Plumer’s decision, in *Purdew*vs. *Jackson,*was *569made in February, and in the May following came on the case of *Honnor*vs. Morton, before Lord Lyndhurst. There the wife had a *vested*interest in remainder, in the residuary estate of a testator, expectant on the death of a tenant for life. Husband and wife joined in assigning her interest in a sum of stock, part of the estate, to a purchaser for value. Husband died, before the residuary estate fell into possession. The wife, by her bill, prayed that the stock be transferred to her; which was opposed by the assignee. The Lord Chancellor decreed the transfer to the wife. He commented on the authorities; and said there was *no one distinct decision*at variance with the decision of Sir Thomas Plumer; and concluded by saying — “ after considering the question in all its bearings, and the authorities and principles, on the one side and on the other, these are the reasons which lead me to the conclusion, that the judgment of the Master of the Rolls, in *Pur dew*vs. Jackson, was *right;*and that the husband, dying while the wife’s interest continued rever-sionary, has no power to make an assignment of property of this description, which shall be valid against the wife surviving.”

In *Watson*vs. Dennis, *(ee*) a case precisely similar to *Hon-nor*vs. Morton, Sir John Leach expressed his full assent to that case, and the case of *Purdew*vs. *Jackson.*

It appears to me, that these cases warrant Mr. Bell, who has collected them, in his treatise on the Law of Property of Husband and Wife, (Book 3, chap. 2, sec. 3, division e. — ) in the observation he makes on them : — that they have conclusively established, that *where it has not been possible*for the husband’s assignee to reduce into possession the wife’s expectant interest, before the husband’s death, entitling the reversioner to possession, the wife’s right by survivorship will prevail over the assignee’s right by conveyanceand that neither the fact of the husband’s having made the assignment, (and, I will add, nor the wife’s joining in it,) nor of his having received the value of the chose as a consideration for the assignment, will operate as *570a virtual reduction by him, into possession, so as to defeat the right by survivorship.

I say nothing of the inconsiderable value paid for the conveyance of a very valuable and constantly increasing property, incumbered only by the life estate of a woman who had three children in 1786, and who must have been advanced in years when these conveyances were made; nor of the relation of life tenant and remaindress, existing between the contracting parties; I rely solely on the legal incapacity of one of the grantees to bind herself, and the want of legal power of the other over the property ; and on that ground, hold the deeds to be ineffi-cacious.

I am not sure whether the counsel intended some observations, addressed to the Court, to apply to these deeds: when it was contended that the transaction should.be sustained as a compromise. To say nothing of there being no distinct transaction intended to compose the whole right, but a mere succession of very advantageous purchases, from an improvident husband, in derogation of his wife’s rights — (rights peculiarly favored in this Court, which, in creating, certainly intended to protect them) — it would-be very absurd, if the Court should hold the husband to have more power to *compromise away*his wife’s property, than to make a *bona fide*sale of it; .or that the wife had more capacity to assent to the one mode of depriving herself of it than to the other.

All the different grounds which I have examined having failed, in my opinion, to bar or extinguish the plaintiff’s right by survivorship : her remainder accrued to her on the death of her mother in December, 1847, and she became the owner of the slaves.

She was then discovert, and so remains. But then a transaction took place, which is supposed to have transferred all her rights from her to Wyett Holmes and John Jones, two of the defendants.

On the 9th of June, 1848, these parties visited the plaintiff, then living in great destitution, in the skirts of Columbus, Geor*571gia, and obtained a deed conveying to them the whole stock of slaves, “ which slaves,” it is recited, “ were in the hands of Rachel Holloway, as a life estate; and also have been the subject of litigation in the Court of Equity,* in Edgefield district, S. C., between James Reese, now deceased, against Rachel Holloway, *now deceased,*and others, and by having reference to the Commissioner’s office, it will fully appear, that said writ was filed the 1st Monday in June, 1821.” The conveyance was for a consideration of *one thousand,*(accidentally omitting the-word dollars.) It appears that the thousand dollars consisted of $500 paid by John Jones in cash, and Holmes’ note (as good as cash) for $500. It contains full warranties.

This deed is exhibited in the answers.

On the 19th of the same month, (June, 1848,) Holmes returned again, and got another deed to himself and Jones, more perfectly reciting the consideration, and more perfectly embracing, with the twenty negroes, for which suit was brought in 1821, their increase, “ whether heretofore born, or hereafter to be born.” In referring to the suit of 1821, it is described to have been brought *“*by the said James Reese, *and me,*the said Lucy B. Reese, as plaintiffs.” It also contains full warranties, and in all respects except those named, has the same legal effect as the previous deed of the 9th of the same month, and is exhibited.

The stock of negroes thus sold were twenty in 1821, with the increase of the twenty-seven years which had intervened; and from the answers, must have been between 50 and 100, more approximating the latter number. Now, if Mrs. Reese had, without any other circumstances, sold such a property as that for $1,000 ; the inference that she was either imbecile, or imposed upon, would be too strong, in any rightly constituted mind, to permit the transaction to pass off without the deepest reprehension, unless defended and explained by plenary — very plenary — proof of fairness and open dealing. I am not insensible to the value of *572contracts. I am not less sensible of the sanctity of property rights. This Court, above all things, esteems fair dealing. It will not allow a contract to be impugned if fair; nor allow it to stand if unfair. Nor wiLl it allow any person to be stripped of his rights, in his property, by a contract, *prima facie*uncon-seientious, like this — unless it be proved to have been the purely voluntary act of the party against whom it operates, deliberately performed upon full information, with a full understanding of his rights, and without misrepresentation, concealment, or other circumstances tending to surprise him, impose upon him. or take advantage of any mistake under which he may labor.

Now, I think, the defendants who took these deeds, have not upheld them by the clear and indubitable proof of fairness, required in such cases: cases where the transaction itself, stands, *prima facie,*colored with the imputation of fraud.

But, when I consider the condition of the woman — destitute, ignorant, deaf, bed-ridden, bowed down with age : that she had not the advantage of proper advice or counsel — the impression of either utter imbecility, or imposition, of which the transaction raises the presumption, is strengthened. The difference among the witnesses is decided, not only by inherent evidence of mistake, arising from the gross disproportion between price and property, but by this condition of the plaintiff, as to which there is a strong preponderance of evidence.

The nature of her right required good advice; and she had none. Did she know — was she made to understand — or is there proof from which we must infer that she did understand, that her mother’s death gave her this valuable property ? Was its value and condition explained to her? Did the life-tenants offer her an unconditional surrender of it? Was she aware of the invalidity of her husband’s deeds or her own? Were those deeds given up, and she told that she was free? Was she told that, as “ widow of James Reese,” who is stated in the first deed to have brought the suit, she was not restricted to a widow’s rights in the property, treating it as his, under the decree of 1822; or what quantity of right she took under that *573judgment, she being considered a party to it, as stated in the second deed ? Did not the reference to the suit serve to bewilder, instead of enlighten her, in regard to her rights ? She was entitled to the whole remainder, and the deeds, to which the defendants tenaciously held on, were no incumbrances on her right; and if they did not wish to take advantage of her, why did they still raise a pretension under those deeds *1*If they wished to buy her *remainder,*it would have been open and fair dealing *to*call it what it was, and let her understand that it was her *remainder*that she was selling and conveying away, under the specious but deceptive description of “ all her right, title and interest.”

Again, I cannot believe that, if the deeds were read to her, she heard, at least so as to understand them. As to the fact of her mother’s death, if it was stated before the execution of the instrument, it is clear to my mind she cannot have heard it, or did not understand its effects; if she had this information and knowledge, her conduct is unaccountable. Why should she, in her necessitious condition, voluntarily give her property away from herself and children, to strangers, to whom there is no reason to believe she sustained any friendly relations ?

Then, again, as to the second deed, which, it is said, was a fair confirmation of her first: it must he observed, that a confirmation is not effectual until a party is released from prior obligations, and made free to confirm or not confirm. The first deed purported to be effectual and binding on her; was that given back *1*

I have said nothing of the relation of life tenant and remain-dress, which, if she was not made aware of her mother’s death, she still must have supposed to exist; and the same consequences attended the transaction, as if Mrs. Holloway was still alive. These consequences are stated with great power by Chancellor Harper, in *Gregg*vs. *Harllee.**(ff)***Indeed, the mere death of Mrs. Holloway did not terminate that relation as *574between the defendants and the plaintiff; and nothing conld but a fair execution of the trust, implied in the relation, by a surrender of the property.

I had almost omitted to notice these deeds in the light of a compromise; in which light, it was argued, they were entitled to special favor. But, independently of the want of sufficient evidence that they were so intended, and apart from the fact that, on their face, they do not purport to be such — the conflicting rights not being stated or described — they are still obnoxious to the charge of unfairness, and a want of deliberation; and are, therefore, not the well understood act which a compromise must be.

The plaintiff is entitled to have these- deeds surrendered up and cancelled, upon the terms to which she has consented in the bill and at the hearing, i. e., that the note of Holmes, which was tendered in Court, be delivered to him; and that the amount of $500, paid by Jones, with interest, be discounted out of the hire of the slaves.

The last point made in the case was, that this is not a fit case for the exercise of the jurisdiction established, generally, in *Young*vs. *Burton.**(gg)*

It was proved, in this case, that the defendants are of ability to answer, in damages, at law, for the full value of the slaves and their hire; and it was insisted, that the very principle upon which the jurisdiction to compel a specific delivery of slaves was established, would be trampled on, if a delivery were decreed in this case. It was argued, that associations have grown up between the defendants and the slaves, in the long course of years during which they have been in possession — associations of the very character which induced the Court to assume the exercise of its power, in the cases in which it has exercised it; while, on the other hand, if such sympathies ever existed in the breast of the plaintiff, they must, long ago, have either died out, or become much subdued; and probably have no counterpart among the slaves, or any of them.

*575It was at my instance that such topics as these were reserved in the judgment given in *Young*vs. *Burton,*and again in *Sims*vs. *Shelton.**(hh)***But it is obvious that attachments must spring up in all cases of life tenancy; and if these are allowed to obstruct the enjoyment of the remainderman, it might as well be declared, at once, that no remainderman is entitled to a specific delivery. He, and his feelings and rights, are to be postponed to the feelings of the life tenant; and the jurisdiction becomes valueless to him.

The defendants are no longer the owners of the slaves. The plaintiff is. She desires the use and enjoyment of them. That is implied in her bill. In what respect is the plaintiff less entitled, than if she had purchased the slaves, for her own use, from the defendants, and they had afterwards repented and refused to deliver? Yet in that case, it is said, a delivery would be decreed ; and such a case is frequently put as an illustration of the value of the jurisdiction.

Besides, this plaintiff is demanding a stock of negroes once belonging to her father, and given by him to her, in the last moments of his life. She may possibly have no knowledge of the negroes now living. But it is one of the best attributes of our nature, that we value every thing that we can associate with the memories of departed parents; and, perhaps, the longer we have lost them, the dearer do these relics become to us.

It is a circumstance, too, to be noticed, that *Trapier*vs. *Glover,**(i*i) one of the cases in which this jurisdiction was exercised, was a case of remainder-man against life tenants: and perhaps the feature of implied trust, existing in all such cases, may help to the jurisdiction, instead of obstructing it.

If, however, the impediment suggested were allowed to prevent a decree for delivery in this case, would it follow that the bill should be dismissed? A general jurisdiction having been established, giving the plaintiff a right to come here: if an im*576pediment be shown to the exercise of jurisdiction in one form, may not the Court retain the bill, and give relief in another?

It is decreed, that the defendants, John Jones and Wyett Holmes, deliver up the deeds, executed by the plaintiff to them, of the 9th and 19th of June, 1848, and mentioned in the pleadings, and that the same be wholly set aside and cancelled ; and that the note of Wyett Holmes, also mentioned in the pleadings, and which was tendered in Court, be cancelled and delivered to him.

That the defendants (with the exception of those as to whom the bill has been dismissed) do, respectively, deliver to the plaintiff such of the stock of negroes, Jenny and Edie, and their increase, as they were in possession of at the filing of this bill, and as are now alive, (including all increase since the filing of the bill, that are now alive,) and account for the hire of the same, since the death of Rachel Holloway, for such time as they have, respectively, had the possession of the same.

That they do, respectively, account for the value of such slaves, of said stock, as they may. have had the possession of, and alienated during the life of said Rachel, in all cases where the slaves so alienated survived the said Rachel; and that they be charged with interest upon the value of said slaves, from the death of said Rachel.

That they do, respectively, account for the value of such of said stock of negroes as have died in their possession since the filing of the bill; with hire for such portion of time, between the death of said Rachel and the death of said slaves, respectively, as they had them in possession; and interest on their value afterwards. *(kk)*

That they do, respectively, account for the value of such of said stock of negroes as they alienated between the death of said Rachel and filing of the bill; with hire for such portion of said time as they had possession; and interest after the alienation.

That the sum of five hundred dollars, paid by John Jones, *577as in the pleadings mentioned, with interest on the same from the time of said payment, be set off (as consented by the plaintiff) against such sum as may be chargeable to said John, on said accounting ; and, if there be a balance in his favor, that the same be allowed to him.

That the Commissioner do inquire the names and value of such slaves -as may have died in the possession of any of said defendants, respectively, between the death of said Rachel and the filing of the bill, and report the same to the Court, for its judgment, (which is hereby reserved,) whether the value of said slaves should be accounted for, and, if so, whether with or without hire or interest.

It is further ordered, that the matters of account, as aforesaid, be referred to the Commissioner, to report thereon ; with leave to report any special matter.

And that he do inquire and report the names, ages and condition and value of the said stock of negroes, and which of them the several defendants are, by the foregoing decree, bound to deliver; and for which of them they are bound to account as aforesaid.

Also, that the parties be at liberty to apply for any further orders, necessary to carry this decree into effect, or that may become necessary in the cause.

Also, ordered, that all questions touching the decree, proper to be made between the defendants, (which questions have not been heard.,) be reserved for hearing; and also all questions in this case, not hereby decided and embraced in the foregoing decree.

Ordered, that the defendants pay the cost of this suit.

The defendants, except those as to whom the bill was dismissed, appealed, on the grounds:

Because, from the whole case made by the pleadings, and evidence on both sides, the plaintiff was not, by the rales of Law and Equity applicable to the case, and the principles on which this Court exercises jurisdiction, entitled to any relief in *578this Court, and the plaintiff's bill should therefore have been dismissed ; and they endeavored to maintain,

1. That the marital ^ rights of John West, the plaintiff’s first husband, attached upon the stock negroes, Jenny and Edie, mentioned in the bill.

*2.*That the marital rights of James Reese, plaintiff’s second husband, attached to said negroes while they were in Virginia, and before their removal to this State.

3. That the negro woman, Jenny, having been bequeathed to Sally Williams, the plaintiff’s sister, was not, in the partition had under the Virginia proceedings, in the Court of Brunswick County, assigned to Rachel Williams for life only, but in fee absolutely ; and that the record of said proceeds, by a proper construction, conferred upon Rachel Holloway an absolute title to the said negroes, Jenny and her child, Edie.

4. That Rachel Holloway, being at the commencement, and continuing until the termination of the proceedings in Court, in Brunswick County, Virginia, a married woman, was not bound or concluded by any erroneous statements or omissions of fact in the bill there filed, or the proceedings had under it.

5. That the marital rights of James Reese, supposing them not to have attached in Virginia, had attached here, to the said Jenny and Edie, and their increase, at the time he executed the deeds to the defendants, respectively, as set forth in their answers : — and, to sustain this view, the defendants relied upon the forfeiture, by Rachel Holloway, of her life estate.

6. That the plaintiff was barred by the statute of limitations, which commenced to run as early, at least, as 1819.

7. That the deeds made by James Reese, and by him and wife, were good and valid transfers to the defendants, of the slaves in question, and formed a legal and equitable bar to the plaintiff’s right of recovery.

8. That the deeds executed by the plaintiff to the defendants, Holmes and Jones, in June, 1848, were valid, and should have been sustained by the Court, as in bar of the plaintiff’s right of recovery.

*5799. That the plaintiff’s claim is ancient and stale, and rests by the decree of the Court upon facts doubtful, obscure, and imperfectly proved, and upon old records of equivocal construction, and therefore should have been rejected, and her bill dismissed, and that the deeds of James Reese and wife should have been upheld and sustained by the Court, as a family compromise of doubtful rights.

10. That the plaintiff having become *sui juris*by the death of her husband, Reese, in 1837, and having then full knowledge that the defendants held the possession of the negroes as absolute owners, and not as trustees for her in remainder, was barred of her right to recover by the statute of limitations, previous to the death of her mother, Rachel Holloway, in 1847.

11. That the decree is erroneous, in referring for support, in the decision of a question of fact, to the character of the contents of a paper not received in evidence, but rejected by the Court, upon the hearing of the cause.

12. That the decree is erroneous, in holding the defendants accountable for the value of the negroes sued for, and which were in the possession of the defendants at the filing of the bill, but have died since, during the pending of the suit.

13. That the decree is erroneous, in ordering the specific delivery of the slaves; and it was submitted, that under the circumstances of this case, the Court had no jurisdiction to grant the relief prayed for; and that the plaintiff, if she had any rights, should have asserted them in another jurisdiction, where she had a plain and adequate remedy.

*Bauskett, Griffin,*Carroll, for defendants.

*Snead, Miller,*for plaintiff.

(a)

**Revised Code of 1819, by Leigh, p. 376, see. 2.

(b)

*B*) Id. 381, sec. 26.

*

A widow’s share of an intestate estate, so far as related to personalty, was one-third, after payment of debts; but, if *slaves*were included in the third, she should hold *them*only for life. (See Act of 1785; 1 Revised Code, 382, sec. 29.)

*

WU1 died in the life-time of Mrs. Holloway, and is not in litigation here.

†

This is the first intimation of their marriage.

(c)

 Dud, Eq. 179.

*

West, the first husband of Lucy, who joined her in tho proceeding for partition, died pending the suit. Reese married her *pendente litet*and was her husband at the partition.

(d)

 Dud. Eq. 179.

(e)

**Revised Code of 1819, p. 382, see. 29.

(f)

 Idem 355-6, chap. 96, sec. 2, 3, 4.

(g)

 Revised Code, *148;*chap. 48.

(h)

*Henderson*vs. *Kenner,*1 Rich. 479 et seq.; *Geiger*vs. *Geiger,*Chev. Eq. 162.

(i)

 1 Revised Code of 1819, 382 and 29.

(k)

*Rolain*vs. *Darby,*1 McC. Ch. 477.

(l)

**Revised Code, 431-2, see. 48, 49.

(m)

 Revised Code, 140.

(n)

 Dud. 7.

(o)

 2 Hump. R. 584.

(p)

 See McQueen on Husb. and W., 35 Law Lib. 12, 54, 64.

(q)

**Bell on Hush. and W., citing *Whittle*vs. *Henning,*p. 91.

(r)

 7 Dana, Ky. Rep. 272.

(s)

 Bell on Prop, of Husb. and Wife, book 3, chap. 2, see. 3, letter g, and particularly the ease of *Whittle*vs. *Henning,*p. 91.

(t)

*Calhoun*vs *Calhoun,*2 Strok. Eq. 236; S C. Rick. Eq. Gas. 36.

(v)

 1 Rich. E(j. 88.

(w)

**) 3 Dos. 417.

(x)

 x) 1 Hill, Oh. 228.

(y)

**1 Strob. Bq. 27.

(aa)

*2*Strob. Eq. 236; Rich. Eq. Cas. 36; *Whittle*vs. *Henning,*cited by Bell on Husband and Wife, 91; and see *Bomar*vs. Mullins, 4 Rich. Eq. 86, affirming *Whittle*vs. *Henning.*

(bb)

**1 Rich. Eq.83,-9.

(cc)

**2 Story Eq. § 1413.

(dd)

**2 Mad. 16.

(ee)

 2 Russ. 90.

*

At which timo they amounted to twenty. The twenty, with the increase from the date of that suit, were conveyed in this deed.

(ff)

*Duel.*Eq. 42.

(gg)

-) MoM. Eq.255.

(hh)

**2 Strob. Eq. 21,

(ii)

 2 Hill Ob. 515.

(kk)

**2 Strob. Eq. 229 ; 3 Id. 1.

*Per Curiam.*

We concur in the decree; and it is ordered, that the same be affirmed; and that the appeal be dismissed.

Johnston, Dunkin and Dabgan, CC., concurring.

Wardlaw, Ch., having been of counsel, did not hear the appeal.

*Decree affirmed.*