1811.

sees

V.

named; since, before the act of 1792, slaves were real OCTOBER,
cstate of inheritance; and also real estate quoad to the

Ball's deri
right of dower; for the heir was not compelled to account
for the appraised value of such slaves as were included

Bull's exeeu;
in the widow's dower. -

widow.
2. The decree is also erroneous, in having dismissed
the bill as to the prayer for a division of the personal
estate. The cause being ripe for hearing in all its parts,
the Court should have decided on them all.

tors and

Williams, contra. The parties, in using the words " hereditaments,” and “estate of inheritance,” showed, by the deed itself, that they meant to exclude the idea of personal property.

Wallace v. Taliaferro, 2 Cull,
447., is an authority showing that slaves were not to be
considered as real estate in a case like this.

The act
of 1785, ch. 61. sect. 24.,(a) plainly evinces that the (a) Revised

vol
legislature considered them as personal estate, relatively p. 163. ch. 92:
to dower. In that section, slaves are spoken of as includ. sect. 25.
ed in goods and chattels. This is a clear legislative ex-

.
position of the meaning of the deed now in question. The
word "thirds" did not properly point to the widow's
share of the slaves ; because, as the law then stood,(6) she (6), Acts of

1785, ch. 61.
was entitled to one half” of the slaves during her life, vect. 26. Re-

vised Code,
in the event of her husband's leaving no child.

164. 'ch. 92
Wickham, in reply. Wallace v. Taliaferro is a strong
authority in my favour; for slaves are there said to be
“personal estate, in almost every instance that could be
named, but descents, entails, and dower."(c)

(c) Judge

Fleming's
T'he agreement should have a reasonable construction,

opinion
according to what both parties intended, which intention Call, 575,
appears from the circumstance that, by another deed,
bearing even date with that for the land, a separate pro-
vision was made for Mrs. Ball, in relation to slaves.
Her husband secured her own slaves to her and her
heirs forever, and furnished his land for them to work
during her life.

18+

pol. p.

dech. 27.

sees

tors and widow.

OCTOBER, The word “ thirds” ought to be understood in the 1811.

common or popular sense. By that word the parties Ball's devi- undoubtedly meant all the wife's interest, by way of

dower, in the property. Ball's execu

Monday, February 22d, 1813, the President delivered the Court's opinion,

o that there is no error in the said decree, except in the dismission of the bill, as to the appellee, before an account of distribution of the personal estate of William Ball, deceased, other than the slaves, one third of which had been allotted to the appellee, in a manner satisfactory to all parties, pursuan to the decree of the county Court of Frederick. There fore, it was decreed and ordered, that so much of the said decree as is mentioned above to be erroneous, be reversed, &c., that the residue thereof be affirmed, and that the appellants pay to the appellee, being the party substantially prevailing, her costs, by her, about her defence in this behalf, expended. And it is ordered, that the cause be remanded to the said Court of Chancery, for an account and distribution to be made of the residue of the personal estate amongst all parties interested therein."

1. A testator who died

dent del or in the

the act of

Fll, as : of the

could not de

r than

to the

, pursuai Ther

. uch of ¢

Toneous

Firmed,

the

out her: dered

Chance of these

Wednesday, Davis and wise against Martin.

Nov. 11th,

1812. THIS appeal was from a judgment of the district Court of Charlottesville, according to a verdict, in favour of vefore the i st

of , John Martin, the tenant, at the suit of Staige Davis, and 1787, (woen Elizabeth his wife, demandants in a writ of right.

1785, ch. 61., On the trial of the cause, and before the rendition of took, effect,) the verdict, it was agreed by the parties, that James vise a tract of

land, of which Gardner, claiming title to the land in the count and plea he was actu

ally tisseis. mentioned, (by a conveyance from Parmenus Booker, ed, when he

made his will, bearing date the first day of December, 1740; Booker and at the claiming the same by a patent issued to him the 20th time of his

death. day of June, 1733, on a survey made for his father, a See Hyer

Shobe, 2 Ralph Booker, the 28th of August, 1718,) entered upon, Munf 200

201, and and took possession of the said land, prior to the year Taylor, er

dem Atkins, 1752, and remained possessed thereof, by actual cultiva- " "Herdere tion and occupancy, until about the year 1767, when he 110, 111, 112;

, , removed his overseer and hands from said land, and 113., as to the

distinction berented the same, for that and several succeeding years, tweeu an 16

dissezto one Faulkner and others; that the said James Garda sin and a disner, being then aged, and confined to his house, which elect on of the was upwards of ninety miles from the land, trusted the person injursame to the possession of his tenants aforesaid ; that, about the year 1769, one Lewis Craig entered upon and tenant of the

freehold, and took possesion of said land, claiming the same as his B. tortiously by a conveyance from Hugh Sanders, by deed of bar- and turn the gain and sale, dated the 14th day of November, 1766; A. ou of posand contending that the survey made for Hugh Sanders, session, claim

ing the land the 27th of February, 1727, and the patent which issued as his abso

lute proper. to him on the 28th day of September, 1728, compre- ty; and he, or

those claiming hended this land ; that the said Lewis Craig remained under him,

continue in the actual adverse possession of said land, claiming hold the same, the same as his, from the year 1769, until the 6th day by actual

adverse pos. of August, 1779, when he, by deed of bargain and sale, session, until

tual

intere

seisin at the

ed.

2. If A. be

1811.

OcT9ler, conveyed to the tenant,'John Martin, that part of said

land now held by him, and put him in possession there. Davis and wife.

of; and that he has ever since held possession there

of, claiming the same as his; that, about the year 1721, Martin.

Ralph Booker took possession of, and settled some ser-
vants and an overseer on the lands in controversy ; and
that the aforesaid Parmenus Booker obtained a patent on
the survey of said Ralph, claiming as his heir at law;
that fames Gardner, aforesaid, made and published his
last will and testament on the 8th day of March, 1784
which was set forth in hæc verba; that he departed this
life in the year 1785; that Anthony Gardner, named in
the said will, (as residuary devisee, was then alive, and
capable of taking the estate devised ; that the land in
controversy is a part of the residue of the estate of the
said testator ; that yohn Gardner was the eldest son, and
heir at law, of said James, and departed this life in the
year 1784, leaving the female demandant, his only child,
and heir at law, who intermarried with the other de-
mandant before bringing this suit.

On this agreement of facts, the tenant, by his counsel,,
alleged, that, whatever might be the result of the inquiry
by the jury, as to the identity of the lands, covered either
by the patent of Pa menus Booker, or by that of Hugh
Sanders, it was immaterial as to this cause, and contend-

. ed, 1st, That if the testator, James Gardner, had held this land by title superior to that under which the tenant holds, and had even been disseised thereof, that he could devise the same, and did devise the same, by the said last will, to Anthony Gardner; 2dly, That, from the facts admitted, the said James Gardner was not disseised of said lands, and therefore could devise the same; and that, he having done so, the demandants ought not to recover the said land, the right thereto being now out of them; and moved the Court to instruct the jury to that effect.

The Court was of opinion, and did instruct the jury, " that if the testator, when he made his will, and at

1811.

the time of his death, was actually disseised of the October,
lands in controversy, he could not devise the same; but
that the aforesaid conveyance by deed of bargain and Davis and
sale, made by the said Hugh Sanders to the said Lewis

Martin.
Craig, and the said Lewis Craig's entry and possession
under the same, and the said several other conveyances,
entries, and possessions so made, taken, and held, as
aforesaid, by and under the said Craig, were not suffi-
cient, in law, to work an actual disseisin of the true
owner of lands, in spite of such true owner; and that,
therefore, if it should appear to the jury, on further tes-
timony, that the said James Gardner was, at the time of
executing the said will, the true owner of the said lands,
and duly seised thereof, and that, from that time, and at
his death, he remained the true owner, his devise of the
said land was good and effectual to pass the same.” To

Το which opinion of the Court the demandants excepted.

Wickham, for the appellants.

Botts, for the appellee.

Tuesday, March 16th, 1813, the president delivered
the opinion of this Court, “ that the testator, James
Gardner, in the case agreed mentioned, having died
prior to the commencement of the act of assembly con-
cerning wills, the distribution of intestates' estates, and
the duty of executors and administrators, and not being
seised of the premises in question, at the date of his will,
or at the time of his death there is no error in the opinion
of the district Court in the first member of the bill of ex-
ceptions contained; but that the instruction given to the
jury, as contained in the second member thereof, was im-
proper, in this, that the facts agreed in the case amounted
to a disseisin of the premises at the said periods re-
spectively; and that the said judgment is erroneous.”

Judgment reversed, the verdict set aside, and the