#### Dixon Barnes *vs.*Wm. C. Cunningham, et al.

Where a widow on bill filed by her for partition of her husband’s estate, allows to be partitioned, and takes herself, as part of his estate, a tract of land, which, on partition, in the husband’s life-time, of her father’s estate, had been allotted to her husband and herself and her heirs, with a direction that the husband pay to other heirs of her father, an excess in the value over her share, she, or her representative, is thereby barred upon the principle of *res adjudícala,*from afterwards claiming, from her husband’s estate, the value of her inheritance in said tract of land. Such claim will be barred by the statute of limitations after four years from the time the excess ordered to be paid by the husband was due • by him.

Where a party to a suit fails to prosecute a matter proper for litigation in that suit, he cannot afterwards be heard on the matter.

B. domiciled in this State, and owning property here, died intestate, leaving real and personal estate in Alabama, in which State, a widow is entitled only to dower in lands, never estimated at more than one-sixth the value. The administrators in Alabama, sold the whole estate and after payment of debts, remitted the nett proceeds to the administrators in this State, who allowed the widow in the distribution one-third. On bill filed, the Court refused to interfere and restrict the widow to one-sixth of the value of the lands.

BEFORE WARDLAW, OH., AT KERSHAW, JUNE, 1856.

WARDLAW, Oh. John S. Cunningham, a widower with two children — Isabella L., who has recently become the wife of Thomas E. McDow, and Nancy, still infant and spinster-intermarried with Mary, daughter of James R. Massey. • In December, 1850, proceedings were .instituted in this Court for Lancaster, for. partition of the estate of said James B. Massey, to which Cunningham and wife were parties, which resulted in decrees that the land of intestate, on Catawba River, denominated in the present proceeding as the Massey *476tract, containing nine hundred and twenty-seven acres, should be *“*vested in John S. Cunningham and wife, Mary, and the heirs and assignees of the said Mary, at the price of six thousand one hundred and eighteen dollars and fifty cents,” and that the share originally of each child of intestate in the real estate of J. R. Massey, was one thousand six hundred and seventy dollars and five cents, exceeding the share of Cunningham and wife in the land, four thousand four hundred and eighty-eight dollars and forty-eight cents, and after taking in advancements made by intestate to his children, that Cunningham should pay to certain distributees the sum of four thousand eight hundred and one dollars and fifty-seven cents on January 1, 1852, with interest from January 1, 1851. This sum has been since paid by the administrators of Cunningham’s estate. His wife joined in no receipt as to the one thousand six hundred and seventy dollars.

John S. Cunningham died intestate, in November, 1851, leaving a large estate in South Carolina and Alabama ; and on his chattels and credits in this State, Robert A. and ■William C. Cunningham administered; and, on his effects in Alabama, the said Robert A. and one William Cunningham administered. The plantation and chattels in Alabama were sold by the administrators there, (the lands on January 12, 1853, for the price of six thousand nine hundred and ninety-six dollars and sixty cents, on a credit of one year) and the choses collected, and, after the payment of debts there, the proceeds have been remitted to the administrators here, and by them, for the most part, distributed according to the laws of this State. The said intestate left, as his dis-tributees, his widow Mary, the two children of a former marriage, (Isabella and Nancy) and a child by the second wife, Mary, named Robert Alford Rinaldo.

On March 31, 1853, Mary, widow of intestate, instituted proceedings in this court for Lancaster, against the children *477and administrators of intestate, for partition of his estate in this State, expressly excluding account as to the estate in Alabama, alleging that he died seized of the Massey tract, the Barkley tract, and the proceedings resulted in decrees *inter alia,*that the Massey tract be vested in the widow Mary, at the price of seven thousand four hundred and sixteen dollars, and the Barkley tract of one thousand four hundred and fifty-one acres he vested in McDow and Isabella his wife, and in Haney Cunningham, at the price of seven thousand nine hundred and eighty dollars and fifty cents.

In May, 1855, the said Mary intermarried with Dixon Barnes, and she died intestate, September 12, 1855, leaving her husband and her son by former husband, Robert A. R., distributees of her estate. Her surviving husband has become administrator of her estate, and guardian of her son— Robert A. R.

This bill is filed by Dixon Barnes, as administrator and guardian, plaintiff, against the administrators and children of John S. Cunningham, defendants. The suit is amicable, but several questions are presented for judgment as preparatory to the accounting.

1. The plaintiff, as administrator of his wife, claims the sum of one thousand six hundred and seventy dollars, and interest, the value of her real estate by inheritance, never acknowledged to be received by her, or representative, from her former husband or his representatives. The defendants plead *res judicata*and the statute of limitations. The original right of the said Mary to said one thousand six hundred and seventy dollars is unquestionable, but, as a wife, she might waive it by joining her husband in a receipt for it, or giving her consent, on separate examination, regularly conducted, that the husband should receive it, and when she became discovert she could deal with her claims as any other contractor. Her right under the proceedings for partition of *478Per father's estate was to the Massey tract in entirety, perhaps with a lien on the whole real estate divided for the one thousand six hundred and seventy dollars. But, while dis-covert and *sui juris,*(and, as was said at the bar and not disputed, after being admonished of her rights by Commissioner 'Witherspoon) she deliberately chose to consider the Massey tract as belonging to the estate of her late husband, J. S. Cunningham, and asserted no claim for the one thousand six hundred .ánd seventy dollars. ISTo claim for this sum was set up before the filing Of this bill. The Massey tract in the partition of Ctmninghamls estate was assigned to her in fee and she acquiesced ^vithoiit- clamor as to further demands. The matter.’was proper for- litigation in that suit, and she had the opportunity of presenting it to the tribunal; and as she did not then Speak, I suppose that on the doctrine of *res judicata,*the voice of herself or of any one claiming in her behalf cannot be afterwards heard, *Maxwell*'vs. *Connor,*Hill, Ch. 14 ; *Reese*vs. Holmes, 5 Rich. Eq. 551; *Rxparte Gfeddes,*4 Rich. 303. I suppose too that the claim is barred by the statute of limitations. The surplus payable by Cunningham, was due January 1, 1852, and this claim is brought forward by bill filed in 1856, at a date not furnished to me. There is some general equity in this claim, and it is with some regret, especially in connection with the next matter of controversey, that I adjudge the bill to be dismissed in this particular.

2. The defendants, McDow and wife, and Haney Cunningham, urge that two hundred acres or more of the Barkley tract were of the inheritance of their mother, and that, on her death, two-thirds of this portion descended to said Isabella and Haney, and only one-third to John S. Cunningham; whereas, in the partition, the whole tract was treated as the estate of said J. S. Cunningham. At the time of the partition these defendants were infants, and defended themselves only by formal answer through next friend. At the hearing, I was *479inclined to the view that this matter -was not regularly presented by answer, and needed a bill with the special object of vacating the former decree: for an infant is as much bound as an adult by a decree, until it be regularly vacated : Bail. Eq. 468; 1 Rich. Eq. 6 ; *Clarke*vs. Jenkins, 3 Rich. Eq. 839 ; Sto. E. P., 792 ; but I understood objection on this score to be waived, and that the parties consented to a reference to the Commissioner to inquire and report how much¿, if any of the Barkley land was of the inheritance .^f'-tb^Qothpfipf Isabella and NanGy. And it is so ordered,. -' *‘ i*1;,Q *<■.*

3. The defendants insist that, as/to the íatrd i#-Aljama, a widow, by the law of that state,’ db.es not cdriie 'in with children as a distributee, and is r^stripted*4o hSr^laim of dower, which is never allowed to excéed-’6ñs--.sú¿th of the proceeds of sale where the land has been sold, and which must be claimed by a procedure prescribed, within three years from the death of her husband; and that she and her representative, for lack of claim in due time, are entitled to nothing in this subject, and should repay the third which in fact they have received from the administrators here, to whom the nett proceeds were remitted. The statute law of Alabama is not unfairly stated in this claim; Ala. Code, 1354, 1372, 1572, 1826-7, 1874, 1755. If the widow should be considered as restricted in this matter to dower, still there would be no place for the bar of the statute from non-claim in three years ; because it would be preposterous in her to institute a suit for the sixth of the land when the representatives of her husband were proceeding to pay her a third. Moreover her title to a third seems fair. She was entitled to that portion of the personalty, by the law of Alabama. Her husband and his distributees were domiciled in South Carolina and the principal administration of his estate was here. In both States the principal business of administrators is with the personalty of decedents ; although, by the laws of Alabama, administra*480tors may sell lands instead of slaves, if more "beneficial to the estate, especially for the payment of debts. The intestate here was largely indebted, to an amount greatly exceeding the price of his lands in Alabama and the balance of the* Alabama property, after payment of debts, was received in cash by the S. 0. administrators. It would not be straining to take either of two views, that the price of the Alabama lands was absorbed in payment of debts of intestate, or that the whole estate should be distributed according to the law of the domicil. Very intricate questions underlie the state of facts, but without discussing them, I adjudge this claim to be invalid.

4. Robert Cunningham, father of .John S., made a will of which John S. was executor, and thereby *inter alia*bequeathed the sum of ten thousand dollars to a posthumous son Robert J. This fund remained in the hands of John S., for many years, until May 1, 1854, when his administrators paid to the guardian of said Robert J., the principal sum of ten thousand dollars and as simple interest for seventeen years and four months the sum of twelve thousand one hundred and thirty-three dollars and thirty-three cents, after deducting payments made by said John S., and his administrators, to the sum of three thousand one hundred and twenty-three dollars' and sixty-five cents, and upon which as the payments were insufficient to extinguish the interest accrued, neither interest nor commissions were allowed. The calculation was made by commissioner Witherspoon. It is supposed that the administrators have not satisfied this legacy in full, and that they may be liable to pay interest at annual rests. Eo proof is offered that the trustee made for himself more than simple interest from this fund; indeed it is not shown how he employed it. I see no reason why more than simple interest should be allowed; and the attempt to disturb this settlement s overruled.

*481It is ordered that it be referred to the Commissioner of this Court for Kershaw to state the accounts between the parties on the principles of this opinion.'

The complainant appealed on the grounds:

1. Because his Honor erred in holding that complainant’s claim to the one thousand six hundred and seventy dollars and five cents was *res judicata;*and that his intestate had waived her right to the same, by omitting to litigate it in the proceedings she instituted for partition of her deceased husband, J. S. Cunningham’s estate.

2. Because his Honor erred in holding that complainant’s claim to the one thousand six hundred and seventy dollars and five cents, was barred by the statute of limitations.

The defendants, administrators of John S. Cunningham, also appealed from so much of the circuit decree as relates to the interest calculation, on settlement with guardian of Robert J. Cunningham.

The defendants, Thos. J. McDow and wife, also appealed from so much of the circuit decree as allows to complainant, as administrator of Mary Cunningham, deceased, the interest of one-third in the Alabama lands, on the grounds:—

1. That, in no event was she entitled to more than one-sixth, and that under requisites never complied with.

2. That- the proceeds of the sale of the lands were not applicable primarily to the payment of debts.

*Gaston,*for complainant,

cited *ex parte*Geddes, 4 Rich. Eq. *801; Wardlaiu*vs. Gray, 2 Hill, Ch. 644; *Yeldel*vs. *Quarles**482Dud. Eq. 55; *ex parte Mobley,*2 Rich. Eq. 56; *Daniel*vs. *Daniel,*2 Rich. Eq. 115; Broom L. Max. 242; 2 Stat. 584 ; 5 Stat. 112; *McQueen vs.'Fletcher,*4 Rich. Eq. 152; *Smith*vs. *Smith,*McM. Eq. 126; *Moses*vs. *Jones,*2 K. & McO. 259; *Lawton*vs. *Bowman,*2 Strob. 190.

*Shannon,*for administrators of John S. Cunningham.

*Kershaw,*for McDow and wife,

cited *Warley*vs. *Warley,*Bail. Eq. 398, 409; *Pell*vs. *Ball,*Speer, Eq. 519; *Laurens*■vs. *Magrath,*1 Rich. Eq. 296.

*Per Guriam.*

This Court concurs in the decree which is hereby affirmed, and the appeal dismissed.

Johnston, Dunkin, Dabgan and Wardlaw, CO., concurring.

*Appeal dismissed.*