#### James B. Pickett and John Peay, v. James Barber, Executor, and others.

The marital rights of the h usband were hold not to have attached upon the wife’s interest in negroes, being a part of the undisposed residue of an estate, of which the husband was in possession as executor, but who at the time of his death, had not fully executed the trusts ofthe will by the payment of the debts and legacies.

*Before his Honor Chancellor HARPER, at Chester, September*1837.

The principal question in this case arose from the following facts as stated in the decree of the Chancellor:

Daniel Green, by his will, bequeathed to his wife, along with other property, one half of his negroes, “which said negroes she is to take, at the valuation of legal appraisers, she having the choice of the negroes as aforesaid.” The other half of his ne-groes, he gave to the six children, by name, of his sister, Rebecca Barber. He appointed two executors, of whom John M. Baiber proved the will, and qualified. The testator’s wife died before him, and the legacy to her became lapsed. To this, the said Rebecca Barber was entitled, as next of kin. John M. Barber was after-wards appointed guardian to his children, and*the complainants became the sureties to his guardianship bond. In 1829, the complainants becoming dissatisfied with John M. Barber’s management of the estate, filed their petition in this court, to which he alone was made a party, praying that he might account for his guardianship and give other securities, and that they might be dis*239charged. On this thei’e were several orders; but.finally, the said John M. Barber, not being able to give other security, his guardianship was revoked, and he was directed by the order of the court to deliver the estate of his children into the hands of the commissioner. In pursuance of this order, he caused the negroes to be appraised by three persons, and claiming the right of choice, which the testator, by his will, had given to his wife, he took about one half of them at the valuation. The other half, he delivered to the commissioner, as the share of his children. The commissioner, who was examined as a witness, stated that he did not consent to this division, but objected to it; though he received whatever the guardian thought proper-to give him, as his chil-drens’ estate. After the death of John M. Barber, the defendant, James Barber, who is also his executor, along with the other children of John M. Barber, filed their bill against his widow, Mrs. Rebecca Barber, for a partition of the negroes, which was ordered, and made accordingly. An account was taken as between John M. Barber and his children, to which exceptions were filed, and a decree had thereon by the circuit court, and afterwards by the appeal court. To the present bill, which is also filed, to revive the proceedings on the petition, the widow, Mrs. Rebecca Barber and her children, are made parties. The principal question made in the case, relates to the half of the negroes to which Mrs. Rebecca Barber was entitled, as next of kin of her brother. Whether John M. Barber, so far reduced them into possession as husband, that his marital rights attached upon them, and consequently whether they go to his executor, or survive to his widow? This question is raised by the complainants, because the estate of John M. Barber is insolvent, and it is important to them that the negroes should be taken as a part of his estate, and made liable to satisfy the amount reported against him, in favor of his children. Jt is not quite accurate to say that Mrs. Barber was entitled to one half of the negroes. As next of kin, she was entitled to the un-disposed residue of the estate, whatever that might be. The un-disposed part of the negroes might have been applied to the payment of debts, as well as any thing else. It was a chose in action, entitling Mrs. Barber to whatever might remain after the payment *240of debts and legacies. The legacy of half the negroes to the children was specific. If they had been of age, and their father had delivered *to them*the negroes in question, as their portion, which they had accepted, this would have bound them, and then (the debts and other legacies being paid) he might have taken possession of the residue, in right of his wife. But he could not make partition with them as tenant in common, in right of his wife. It was as executor that he was to deliver theii legacy to them, and for that purpose the title must remain in him, as executor, up to that time. It is hardly necessary to say that neither he nor his wife could have the right of choice, given as a personal benefit by the testator, Daniel Green, to his wife. It was argued that the partition made with the children, must be regarded as valid, because the commissioner received them under the authority of the court, — was in effect their guardian, and accepted the ne-groes, on their behalf, and that they are ther’efore bound as if they had been of age and accepted for themselves. But there is plainly nothing in this. Even if the commissioner had had authority to consent to such partition, he states expressly that he did not do so, but objected, and only accepted the negroes, reserving the right to have a re-partition. ' It may be observed that even if this partition were valid, it does not follow of course that he took possession of the residue in right of his wife, as next of kin. There were legacies still due; the money legacies to the children for one, and perhaps debts; and till these were paid, he had no 3'ight to the residue. This is not like the case of Burgess v. Heape, 1 Hill Ch. R. 397. If there were a joint legacy to two, and the executor deliver the subject of it to one, for himself and his co-legatees, here the possession of one, would be the possession of both, and the marital rights would attach; so if there were two distributees, and he should, in like manner, deliver the residue to one. But certainly there is nothing to shew that he even signified .his intention to hold these negroes, as tenant in common, in right of his wife, with his children. It may be added that the partition of the negroes, subsequently made by the order of the court, would be conclusive on John M. Barber, or his personal representative. His creditors could only impeach it on the ground of its having *241been made fraudulently, and by collusion between the executor and the other parties, which I do not understand to be alleged, or established. I ana therefore of opinion that the marital rights of John M. Barber, never did attach upon the slaves in question, but that the right of Mrs. Barber, as next of ldn, to the undisposed estate of her brother, Daniel Green, survived to her.

Wm. Harper.

The complainants moved to reverse the decree of the Chancellor on this point, and insisted that the personal property which the said Rebecca Barber became entitled to, oii the death of her brother, Daniel Green, absolutely vested in her husband, John M. Barber, by virtue of his marital rights, and the court should have decreed it, subject to the payment of bis debts. The complainants also appealed upon several grounds relating to other parts of the circuit decree, which it is not considered necessary to embrace in the report of the case.

*Clark M‘Dowell,*for complainants.

Johnson, Ch.

We concur with the opinion expressed in the circuit court, on all the groxmds of this appeal. It is therefore ordered, that the appeal be dismissed, and the decree of the circuit court is hereby affirmed.