(X.) OF DOWER OF SLAVES.*

1.

as

dower marries a se

M'CARG'S EX'R V. CALLICOTT. March T. 1811. 2 Munf. Rep. 501.; AMBLER AND WIFE V. NORTON, 4 Hen. &. Munf. 23. Declaration in detinue for slave by the executor of the testator, Where a whose widow is the defendant. The widow was possessed of the widow holding slaves, as her thirds of the slaves of her former husband; and slaves being so possessed, the plaintiff's testator married her, and died. And the question was, whether a widow holding slaves in dower, and marrying again, thereby vests them in her second husband, so that upon his death they go to his representatives, or whether she long to the shall have them for the residue of her life. The county court band and gave judgment for the plaintiff; and on appeal, the judgment was sentatives reversed by the district court, and the plaintiff appealed to this death.

court.

The president delivered the opinion of the court, consisting of judges Fleming, Roane, Cabell and Coalter, that the judgment of the district court be reversed, and that of the county court affirmed.

cond hus

band, the

slaves be

second hus

his repre

until her

* Slaves are subject to dower in all the states. Not only are they subject to dower, but the widow's interest in them is protected by statutory provisions. If the husband manumits his slaves, whereby creditors and the dower of the widow are affected, the manumission is so far ineffectual, that the manumitted slaves may be sold for a period, and the proceeds of the sale applied to the creditors of the former owner and his widow. By the Rev. Code of Virg. vol. 1 p. 435., it is declared, that the right of the widow to the dower of slaves emancipated by the husband's will, are saved if she renounce under the will. So, also, the rights of the creditors of the person emancipating are saved. And by the Rev. Code of Mississippi, p. 385, § 75., it is declared, that slaves emancipated are subject to the right of dower of the widow, and are made liable to execution for the previous debts of the owner. And similar provisions exist in the statutes of the other states. Civil Code of Louisiana, art. 190.; 2 Litt. and Swi. 1155.; 2 Brev. Dig. 256.; James' Dig. 398.; Toulmin's Dig. 632.; Prince's Dig. 457.

2.

A wife's es

er of slaves

mer hus

HYKES & WIFE V. WHITE'S ADм'R. April T. 1832. 7 J. J.
Marshall's Rep. 134.

Per Cur. Robertson, Ch. J. The only question presented in tate in dow- this case is, whether slaves possessed in right of dower by a feme at by a for- the time of her marriage survive to her, or constitute (during her life, and after the death of her husband, whom she married whilst she held them as dower in a former husband's estate) a fund for in her hus- the payment of his debts, and for distribution among his heirs.

band on her marriage, vests

band.

The question has been expressly decided by this court, in the case of Hawkins v. Craig and Wife, 6 Monroe's Rep. 256. In that case the court decided, that the wife's estate in slaves held as dower from a former husband, at the time of her marriage with a succeeding husband, vests absolutely in the latter during their joint lives; and in the event of her surviving him, goes, during her life, to his personal representatives. They are assets in the hands of the husband's representatives, if he should die before his wife. Slaves held in right of dower vest in the second husband, and do not survive to the surviving wife, but vest in the representatives of the second husband during the life of the widow, subject only to her right of dower, as part of her husband's estate. And see Fightmaster et al. v. Beasly, 7 J. J. Marshall's Rep. 410. The court said that the interest of a wife in the devise of a slave vests absolutely in the husband.

And her

right to manumit them is gone.

3.

THRIFT V. HANNAH et al. June T. 1830. 2 Leigh's Rep. 300.; S. P. GIVENS V. MANNS, 6 Munf. Rep. 191.; LEWIS v. FULLERTON, 1 Rand's 15.

Rachel Magruder, being a feme sole, on the 25th of Nov. 1798, made a written instrument of manumission, to take effect in futuro, of certain slaves, Hannah, Kate and others, which instrument is attested by two witnesses, and partly proved by one of them, and continued for further proof in April, 1799. In November, 1799, Rachel Magruder married Thrift, having the negroes in her possession, who was ignorant of the deed of emancipation. Thrift and his wife moved into another county, taking the negroes with them, and holding them as slaves. Mrs. Magruder died in 1811. In 1819 the instrument of emancipation was fully proved. The husband holding the negroes in his possession as slaves, this suit

was commenced. Verdict for plaintiffs; and Thrift appealed to the Circuit Court of Albermarle, which affirmed the judgment, and he appealed to this court.

The court held, that under the statute, an instrument of emancipation is ineffectual to confer freedom till full probat be made, and takes effect from that act. And in this case, as the rights of the husband attached to the property before the probat, the subsequent full probat did not relate back and divest or effect those rights.

Per Cabell, J. By the marriage of Rachel Magruder in this case, she ceased to be the owner of the slaves, which thereby became the property of her husband; and that event happened before the proof of the instrument; and, of course, before it had taken effect as an instrument of emancipation, it could not take effect afterwards, since none but the owner of the slaves can emancipate them.

(XI.) OF THE DIVISION OF SLAVES.*

1.

FITZHUGH et Ux. v. Foor et al. April T. 1801. 3 Call's

Rep. 13.

vision can

made with

Held by the court, that an equal division of slaves, in number When a diand value is not always possible, and sometimes improper, when not be it cannot be exactly done without seperating infant children from out separatheir mothers, which humanity forbids, and will not be counte- children ting infant nanced in a court of equity; so that a compensation for excess must, in such cases, be made and received in money.

2.

JACKSON V. MACY. Spring T. 1808. Hardin's Rep. 582.

Held by the court, that in a suit for the division of slaves, the court upon a proper case made out, may order the sheriff to take the slaves into his possession and hire them out.

By the Rev. Code of Mississippi, p. 50., slaves descending from an intestate may be sold by order of the Orphan's Court, where equal division cannot be made; and persons holding life estate in slaves, or guardians for infants are required to deliver a list of slaves to the Register of the Orphan's court, and also the increase. Page 51. And similar provisions exist in the other states for the division of slaves,

from their mothers, compensation may be made in money.

And the

court will sheriff to

order the

hire them out.

3.

And they will be divided ac

SNEED V. EWING & WIFE. April T. 1831. 5 Marsh. Rep. 481.

Held by the court, Robertson, J., that slaves in Kentucky cannot be carried to, and held in a state where slavery is not permitted, cording to (Indiana ;) yet slaves in this state which belong to a citizen of such a state, on his death will be distributed according to the law of distribution of personal chattels or moveables in that state.

the laws of

the own

er's domicil.

The court

will, in its

(XII.) OF REMAINDERS IN SLAVES.*

1.

HOLIDAY V. COLEMAN. March T. 1811. 2 Munf. Rep. 162.

The court held, that the power of a court of equity to rule a discretion, tenant for life of slaves, or other personal property, to give security compel the that the property shall be forthcoming at his or her death, is to be life to give exercised, not as a matter of course, but of sound discretion, acsecurity to

tenant for

the remain- cording to circumstances.

derman.

A devise to

take effect after the

2.

BANK'S ADM'R v. MARKSBURY. Spring T. 1823. 3 Little's

Rep. 275.

Held by the court, that a gift of slaves by a father to his children, to take effect after the death of himself and wife, and not death of the until then, is valid. devisro is

good.

* Slaves are considered as personal property, except in Louisiana, and under stat ute of descents in Kentucky. They may be devised, and limited in the same manner as other personal property. A remainder may be limited of them. Keating v. Reynolds, 1 Bay's. Rep. 80. Even after an absolute gift to the first legatee. Smith v. Bell, 6 Peters' Rep. 66. And see Dott v. Cunnington, 1 Bay's Rep. 453., as to when the words, "heirs of the body," will be considered words of limitation or words pruchase; and consequently, when the contingency will be too remote. The contingency must happen within a life or lives in being, and twenty-one years and a few months after. Barnit's Lessee v. Casey, 7 Cranch's Rep. 456.; Doe v. Walton, 2 B. & P. 324.; Thelluson v. Woodford, 1 N. R. 357.; Long v. Blackall, 7 T. R. 109.; Roe v. Jeffrey, 7 T. R. 589.; Morgan v. Morgan, 5 Day's Rep. 517.; Anderson v. Jackson, 16 John's Rep. 382.; Scott v. Price, 2 S. & R. 59.; Dallam v. Dallam's Lessee, 7 Har. & Johns. Rep.; 220.; Ewings v. Reynolds et al. 3 Har. & Johns. Rep. 144.

3.

QUARLES' EXECUTOR V. QUARLES. March T. 1811. 2 Munf.

Rep. 321.

The profits

devised to a "child when

he shall ardo not go

rive at age,

to the residuary legatee, but to

Held by the court, that where slaves are specifically bequeathed of slaves to a child when he or she shall attain the age of twenty-one years, or shall marry, and no provision is made expressly for maintenance in the mean time, the intermediate profits of the slaves, if not otherwise disposed of, do not pass by a general residuary clause, but go to the legatee for his support; and he is entitled to the profits from the time of the receipt thereof by the executor, if there be no good cause appearing for his failure, to apply the principle to the use of the legatee. And see Medley v. Jones, 5 Munf. Rep. 98. 101.

for his sup

the child

port.

4.

MEDLEY V. JONES. March T. 1816. 5 Munf. Rep. 98. Held by the court, Roane, J., that a person entitled to a remainder in fee, expectant upon a life estate in slaves, taking them into his own possession to prevent the tenant for life from carrying them out of the state, is bound to account for and pay their hire, or the profits, while he detains them, and is not entitled, upon the ground of the tenant's refusing to give bond and security for their production at the expiration of the life estate to an injunction, to stay proceedings upon a judgment against him for such hire or profits.

5.

BANK'S ADM'RS v. MARKSBERRY. Spring T. 1823. 3 Little's Rep. 275.; S. P. EWING'S HEIRS v. HANDLEY'S HEIRS, 4 Little's Rep. 346.

A person in taking pos slaves,

remainder,

session of

must account to

the particu for the

lar estate

hire or

profits.

Where a

feme sole is entitled to

slaves in re

version or remainder,

Samuel Marksberry, by deed, for the consideration of love and affection, granted a negro wench to his son Samuel, and the issue of the said wench to his daughter Rachel. After his decease, Rachel intermarried with Banks, and had children, of whom the and marplaintiff was one. Rachel died, and afterwards, the donor, her ries before father, died, and the plaintiff, one of the children of Rachel, took nation of the particuout letters of administration upon her estate, and commenced this suit. The court held, the administrator of Rachel had no right to recover; that the property in the issue of the negro Pen vested in the husband on the marriage; and the plaintiff appealed to this or of them.

lar estate,

the slaves belongs to

the right to

the surviv

court.