
    *Godwin's Adm’r v. Godwin’s Adm’x &c.
    April, 1833.
    (Absent Brookis. J.)
    Executors and Administrators — Sale of Slaves When Not Necessary to Pay Debts -Right of Widow in Pro= ceeds — Bond — An administrator makes sale of slaves of his Intestate, to raise funds for payment of debts, but it turns out that the funds are not wanted to pay debts; and upon a question, what Interest the intestate’s widow is entitled to in the proceeds of the slaves so sold: Held, that, as the widow was entitled to only a life interest in one-third of the slaves, the hest general practical rule is, to give her one-third of the proceeds of sale thereof for her life, requiring hond with surety of her, that the principal, at her death, shall be paid to the persons entitled in remainder.
    This was an appeal from a decree of the superiour court of chancery of Williams-burg, in a suit between J. A. Chandler administrator of Joseph Godwin deceased, who had been administrator of Edmond Godwin deceased, and Martha Godwin widow of Edmond, and administratrix de bonis non of his estate, and others his’dis-tributees ; which involved a settlement of Joseph Godwin’s accounts of administration of the estate of Edmord Godwin, and a distribution of any balance found due thereon.
    Upon the settlement of the accounts before the commissioner, it appeared, that there was a balance due from the estate of Joseph Godwin to that of Edmond Godwin; but this balance consisted intirely of the proceeds of slave property of Edmond’s estate, which had been sold by Joseph, under an apprehension that the sale was necessary to raise funds to pay debts of Edmond’s estate, though it turned out that the sale was not necessar3T, or that more slaves were sold than necessary, to meet the debts. And in distributing this balance, the commissioner a lowed the widow one-third of it in absolute property. To this, an exception was taken, on the ground, that as the widow was entitled by law only to a life estate in one-third of the slave propertj’ of her husband, so she was only entitled to the value of a life interest in one-third of the proceeds of the slaves. that had *been sold. The chancellor, in his decree, overruled the exception, approved the report, and decreed accordingly.
    An appeal was taken bj' Chandler, from the decree generally; and there were many questions arising on the details of the accounts; but the only question of law was that presented by the above mentioned exception to the commissioner’s report.
    Eeigh, for the appellant.
    Johnson, for the appellees.
    
      
      Executors and Administrators — Sale of Slaves — Adjustment of Rights of Widow in Proceeds.— in Hicker-son v. Helm, 2 Rob. 662, upon the question of the adjustment of the interest of the widow in the sale of slaves belonging to her husband, the rule laid down in the principal case, lhatsuoh interest should be an annual sum from the death of her husband until her death, equal to the amount of one-third of the gross amount of the sales or the value of the slaves, was followed. Baldwin, J., however, was of opinion that the widow was entitled to credit for one-third annually of the estimated hires, and he said at page 653 that his view of the case was not in conflict with the rule laid down in Godwin v. Godwin, 4 Leigh, 410.
    
    
      
      Same — Life Tenant — Security for Return of Property. —In Houser v. Ruffner, 18 W. Va. 251, Patton, J., said: “I know of no law, which requires a life-tenant to give security for the return of money or other property upon the termination of the life-estate, unless those in remainder or reversion show such special circumstances, as cal) for the intervention of a court of equity by bill of quia timet. Chisholm v. Starke, 3 Call 25; Holliday v. Coleman, 2 Munf. 162: Mortimer v. Moffatt 4 Hen. & M. 503; Frazer v. Bevill, 11 Gratt. 9; Dunbar v. Woodcock. 10 Leigh 638; Weeks v. Weeks, 5 N. H. 326; Scott v. Price, 2 Serg. & R. 59. Godwin v. Godwin, 4 Leiqh 410, would seem to lay down a diflerent doctrine. In that case an administrator sold certain slaves under th e apprehension, that the proceeds would be necessary ,to pay debts. It turned out otherwise, and the question was, what interest the widow took in the proceeds. If the slaves had not been sold, she would have been entitled by statute to one-third of them for life. Tucker, Judge, in delivering the opinion of the court held, that she took a life-estate in one third of the purchase-money. He uses this language: ‘The use of the purchase money for life is therefore the most proper measure: and whenever her portion of purchase money is so paid over to a widow for life, bond with security should be required of her for paying it over at her death to the persons entitled to remainder.’ Judge Tucker cites no authority in support of his position, that the widow should be required to give security, draws no distinction between a life-tenant of money and other personal chattels, so as to take the case out of the general rule, gives no reason whs security should be required, and does not discuss the question at all.
      “There'is this difference between the cases I have referred to and Godwin v. Godwin. In all of those cases the life-tenant took under the provisions of a will; in that case the life-tenant took by force of the law. Whatever importance may be attributed to that difference, and I must confess I can see no' difference in principle, upon the ground that in the case of a will the testator had it in his power to require security, and his failure to do it was evidence of a personal trust and confidence, and in the case of a life-tenant by force of the law there is no personal trust and confidence, it does not affect the question I am considering. If the effect of Judge Tucker’s decision in Godwin v. Godwin is to hold that a life-tenant of money or other personal chattel is not entitled to the possession of such money or other chattel, until bond with security is given for the return of the money or property upon the termination of the life-estate, then I am compelled to dissent from such decision, as contrary both to principle and authority.
      “I know of no case where it has been held, that a life-tenant can be required to give security for the return of the property, unless some special reasons are assigned, as in Chisholm v. Starke, 3 Call 25, and Frazer v. Bevill, 11 Gratt. 9. On the contrary, in Holliday v. Coleman, 2 Munf. 162, and Mortimer v. Moffatt, 4 Hen. & M. 503, the court refused to require security, saying in the latter case: 'Yet the court will not rule the tenant for life to give security to have the property forthcoming at his death, unless there appear some danger of its being wasted or put out of the way.’
      “There is no difference between money and any other personal chattel. Weeks v. Weeks, 5 N. H. 326; Scott v. Price, 2 Serg. & R. 59; Dunbar v. Woodcock, 10 Leigh 628. The fact, that in Godwin v. Godwin, money was to be paid to the widow instead of other personal property could not have been the ground of the decision of Judge Tucker. In that case the widow was entitled to the slaves. They were converted into money without her assent and under a misapprehension upon the part of the administrator; she should not have been placed in a worse position with regard to the proceeds, than she was with regard to the thing sold.”
      See monographic note on "Executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6.
    
   TUCKER, P.

The court is of opinion* that the widow is improperly allowed one-third of the balance found due from the administrator, in absolute property. That balance is, in effect, the proceeds of the sales of slaves, to one-third of which she had title indeed, but only for life. What her proportion of the price ought to be, can be estimated by no certain rule that the court knows of. It is a complicated question presenting a triple ratio; the probable life of the widow, the probable life-of the slaves, and the difference between the hires of the slaves in her portion, and the interest of her portion of their price. Eor, if the slaves had not been sold, their hires would have been of more value to her than the interest of the money; and, therefore, the mere interest of the money for life would seem, at first view, not a fair compensation; yet as this, is certain, and the hires uncertain, since the slaves may die, perhaps there is no better rule, in such cases, than to allow her one-third of the mone3r for life. No other course can approximate to what is right. Eor it is possible the slaves, or the widow, may die, the day after allotment; and so her interest may be worth little or nothing. But it is also possible, that the slaves may live many years, and yet die before her, and then she would have had the whole value. And it is also possible, she might live until they were superannuated; so that if they survived her, they would be a charge and not a profit. The use of the '^'purchase money for life, is, therefore, the most proper measure; and wherever her portion of purchase money is so paid over to a widow for life, bond with security should be required of her, for pa3ring it over at her death, to the persons entitled in remainder.

Decree reversed, and cause remanded.  