[Present, Chancellors Rctiedge, James and Thompson.]

MAY, 1806.

#### Francis Peyre, Floride Peyre, Thomas Ashby, Thomas H. Jervey, and others, *vs.*Thomas Karwon, Administrator of John Ashby, and of Catharine Ashby.

A widow b.egueathes by. general words, the distributive share she was entitled to in her intestate husband’s.'estate, then undivided, ¡and dies.. Her husband was entitled, besides his estate in possession, to certain negroes bequeathed to. him by a relation, after a life estate given to another person. This life estate did not fall in till after the husbands death, nor indeed until after the death, of the widow. Nevertheless her general bequest passes her interest in these negroes.

A’ husband is entitled exclusively to his wife’s estate, though not actually reduced to possession by division, during the coverture.

LEWIS BOCKET bequeathed *inter alia*certain ne-? gro slaves to his wife forlife, and at her death to John Ashby. John Ashby died intestate, in the year 1793, before Mrs. Bocket, and after the passage of the act abolishing the rights of primogeniture, leaving a widow, Magdelaine Ashby and a daughter Catharine Ashby. Thomas Karwon administered on the estate of John Ashby, and possessed*, himself thereof. No division of the estate of John Ashby was made in the lifetime of his widow, Mrs. Magdelaine'Ashby, who died in the year of our Lord, 1801.

She left a will duly executed, and in force at her death, by which she bequeathed, after a few legacies to other persons, the rest and residue of her estate, including what she was entitled to from her husband’s estate, to her daughter Catharine *Ashby;*but if she died without leaving children, then to her niece Floride Taylor, and her nephew Thomas Ashby, to be equally divided between them. Catharine Ashby, the daughter, died on the 21st September, in the year 1802, under age, unmarried and intestate, and Thomas Karwon administered on her estate. Floride Taylor, the niece of Magdelaine Ashby, married *420the complainant, Thomas H. Jervey, and died in November, 1802, without issue, leaving the complainants her next of kin. But her 'husband the said Thomas H. Jervey, administered on her estate, and claims with the rest of her property, her proportion of that part of the estate of the late John Ashby, to which Mrs. Magdelaine Ashby was entitled, and which she had bequeathed in tase of the death of her daughter Catharine, without leaving issue (an event which has occurred) to her niece, Flor-ide Taylor, and her nephew, Thomas Ashby. A suit was instituted by Thomas Karwon, in the form of a bill of interpleader, for the purpose of obtaining a decision by the court, who were the next of kin entitled to distributive shares of the estate of Catharine Ashby, the daughter, and the court accordingly made their decree therein, in favor, of two of the present complainants, Francis Peyre and Floride Peyre. (Vide ante, p. 210 to 214.)

And afterwards another suit was instituted by Francis and Floride Peyre, the nearest relations of the deceased, Mrs. Floride Jervey, claiming a distributive share under the act of February, 1791, of the estate, to which she was entitled, but which had not been actually reduced to possession during the coverture; and denying the exclusive right of the husband to the whole of such estate. But the court decided that the husband was exclusively entitled tq the whole. (Vide ante, page 221 to 226.)

On the death of Mrs. Socket, and since the decrees made in those cases, the defendant Karwon hath possessed himself of the negroes bequeathed by the said Lewis Bocket, to the said John Ashby, which are supposed to be divisible among the legatees of the late Magdelaine Ashby, the widow, and the next of kin, of the late Catharine Ash-by, the only child of the said John Ashby; but other claimants set up pretensions thereto. The bill was filed to recover the respective proportions of the complainants in said property.

After hearing argument, Chancellor Rutledge delivered the decree of the court.

*421The complainants bill iri this case, prays that the defen-(jiantmay make a division among them according to their respective rights, of sundry negroes which be has obtained possession of that were left to his intestate John Ashby by L. Bucket, after his widow’s death. And the complain-2(1 ants Thos. Ashby and T. H. Jervey claim a proportion of them under the following clause of Magdelaine Ashby?s will: — “ I give and bequeath all the residue and remainder of the property or proportion of the undivided estate of jmy deceased husband, whether in lands, negroes, stock, &c. or whatever the same may be in ; and all such, or any pther property I maybe possessed of or entitled unto, in any other manner whatever, unto my daughter M. C. Ashby, to her and the heirs of her body ; but should my aforesaid daughter die, leaving no child or children, then and in that case, I do give and bequeath the same to my niece. Floride Taylor, and my nephew Thos. Ashby, to be equally divided between them share and share alike, to them and their heirs for ever.” The testatrix’s daughter M. C. Ashby died an infant, intestate, and unmarried.— The only question for consideration is, whether complainant T. Ashby in his own right, and T. H. Jervey in right of his wife. Floride, who is now dead, are entitled under the will of Magdelaine Ashby, to any and what part of the iiegroes bequeathed to her husband by L. Bocket *l*This is a plain case. L. Bocket having died in the life time of J. Ashby, the devise to him was clearly a vested interest? and transmissible to his representatives by will or otherwise. J. Ashby dying intestate, his wife (Magdelaine Ashby) of course became entitled to one third part of the negroes bequeathed to him as aforesaid. M. C. Ashby, the daughter, being dead, an infant, intestate and without issue, the complainant T. Ashby and Floride Peyre who married complainant T. H. Jervey, became by virtue of Magdelaine Ashby’s bequest, legally entitled to her share of the negroes bequeathed to J. Ashby by L. Bocket. It is therefore ordered and decreed that the defendant do deliver over to complainants T. Ashby and T. H. Jervey *422respectively, such third part or share of the said negroes *%*and the remaining two third parts to be distributed among ^le complainants, according to their interests therein, and that the costs be paid out of the estate,*

Mr. Gaillard for complainants.

Mr, CRoft for defendant.

*

 It appears that at the time of this decree, the court was of opinion that the husband surviving his wife, was entitled exclusively of her next of kin to her whole estate, even that part not actually reduced to possession during the coverture, according to the old doctrine established prior to the act of February, 1791, abolishing the rights of primogeniture, and making more equal division of intestate’s estate, and therefore decrees to T. H. Jervey, in this case, all that his deceased wife was entitled to in this estate. But the Court of Appeals upon a fuller examination of the provisions of that act, and fuller argument thereon, has since decided that the estate of the wife not actually reduced to possession, and ascertained *by*division, does not belong exclusively to the husband, but is distributable according to the provisions of the act of February, 1791. See Sd vol. of Chañe. Rep. p. 135, 147, 8. 155. See also 12 Yesey, 497, where it is decided even in England, where the law is more favorable to the husband in this respect, that the possession by the husband at; trustee ox- executor, is not such a reduction into possession as enti» ties him to the property.