
    *Street’s Ex’ors v. Tinsley’s Adm’r et als.
    
    January Term, 1857,
    Richmond.
    Absent, Clopton, J. He sat in the case below.
    Husband and Wife — Wife’s Remainder in Slaves. — A husband conveys away his wife’s remainder in certain slaves for valuable consideration, and dies before the tenant for life, his wife surviving him. Held: She is entitled to the property against the husband’s vendee.
    In August, 1848, John T. White and others, administrators of several of the dis-tributees of William Tinsley, dec’d, filed their bill in the Circuit Court of Hanover, against Anthony Street’s executors, from which it appeared, that said Tinsley died intestate without issue, and possessed among other things of a large number of slaves. After his death, in 1809, one-half of his slaves were allotted to his widow, Elizabeth Tinsley for life, by commissioners appointed for that purpose by the County Court of Hanover, and the balance were divided among his distributees — to wit: his sister Huey Cross, wife of Samuel Cross, Sarah Starke, wife of Richard Starke, his brothers David Tinsley and John B. Tinsley, Mary Archer, wife of Obadiah Archer, Martha Kewin, and Nancy Henry, children of Philip Tinsley — another brother — his only next of kin and heirs at-law. In August, 1809, Elizabeth Tinsley, the widow, conveyed her life-estate in the said negroes to Haney Jones and Anthony Street, and in January, 1813, by mutual consent the negroes were divided between them. Elizabeth Tinsley afterwards married again, and -removing *with her husband from Virginia, died in 1837. During her life, Anthony Street purchased of John B. Tinsley, the intestate of one of the plaintiffs, his reversionary interest in the said slaves, and of Obadiah Archer the interest of his wife, and of George R. Smith (who had purchased it from her husband) the share of Mrs. Starke. The shares of Tinsley and Mrs. Archer were one-sixteenth each, and that of Mrs. Starke was one-fourth. The bill sought to have the negroes sold and divided among the parties entitled in proportion to their interest, and stated that (in consequence of her non-residence) the death of Elizabeth Tinsley had come to the knowledge of the plaintiffs only in 1845, and that they immediately demanded their shares of the negroes, and their hires, of the executors, who had, up to the filing of the bill, failed to comply with their reasonable request. The executors of Street, Obadiah Archer, and Sarah Starke, who had survived her husband, were made parties.
    The executors of Street answered, that he had purchased shares as above stated, and perhaps others, of which they did not know, but that he had held the whole of the slaves which came to his possession, as his own, for more than five years after the death of Elizabeth Tinsley in 1837, and before his own death, which occurred in July, 1844, and so'they insisted his title was complete. They also stated, that they were not, and had never been, in possession of any of said negroes, except Martha and her children, Henry and Sally, and that Martha had since died. They further stated, that there were no assets in their hands applicable to any demand which might be established by the plaintiff against their testator.
    Sarah Starke answered, that it was true her late husband had made a conveyance of her interests in said slaves to one George R. Smith, and that he had conveyed them to Street; but that the conveyance could not deprive her of her interests, as her husband had no power to convey, having died in *the lifetime of the tenant for life, and she, having survived him, was entitled to the property.
    It does not appear from the record, whether Obadiah Archer survived his wife or not, nor does it appear that he ever answered the bill, or that it was taken for confessed as to him. No evidence was introduced to show how long Street had possession of the negroes, or that it was an adverse possession.
    In October, 1850, the court made an interlocutory decree, declaring that Anthony Street " was entitled, as transferee of Obadiah Archer and John B. Tinsley, to two-sixteenths of the negroes; and that the share of Sarah Starke, to wit, four-sixteenths, survived to her, notwithstanding the sale of it bj' her husband.
    The decree then directed, that the two surviving negroes, which had come into the hands of Street’s executors, should be sold by commissioners appointed for the purpose, and after paying the expenses of the sale, that the parties first named should receive the proportions stated of the net proceeds, and the balance be divided among the remaining distributees in proportion to their interests, which were specially stated also. Liberty was reserved to the plaintiffs to recover any others of the slaves or their hires, to which they might show themselves entitled.
    E'rom this decree Street’s executors appealed to this court.
    Lyons, for appellants.
    Griswold & Claiborne, for appellees.
    
      
      The case of Jones’ adm’r v. Starke et als., growing out of the same transactions, and in which the only material question was that settled in this case, was also decided at the same time.
    
    
      
      Jinsbund and Wife — Wife’s Remainder in Person» alty. — The rule is well settled, that where a wife has a vested remainder in personal estate, expectant on the death of a life tenant, and both the wife and the tenant for life outlive the husband, the wife is entitled by right of ownership to the interest in remainder, not only against the representatives and general assignees of the husband, but even against his particular assignees for valuable consideration. Moorman v. Smoot, 28 Gratt. 85; Henry v. Graves, 16 Gratt. 244. See further, monographic note on “Husband and Wife” appended to Cleland v. watson, 10 Gratt. 159.
    
   The decree was as follows, all the judges concurring in it:

This day came the parties by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of opinion, that the said decree, so far as it directs the commissioners (appointed to sell the slaves Henry and Sally), out of the net proceeds of sale, to *pay one-sixteenth part thereof to the executors of Anthony Street, to which the testator was held by the said decree to be entitled as transferee of Obadiah Archer, is erroneous, because it does not appear from the record that the cause as to the said Archer had been properly matured for hearing, and that there is no error in the residue of the decree. Therefore, it is decreed and ordered, that the said decree, so far as the same is above declared to be erroneous, be reversed and annulled, and that the same in all other respects be affirmed; and that the appellants, out of the assets of their testator in their hands to be administered, do pay unto the appellees their costs by them about their defence in this behalf expended. And it is ordered, that this cause be remanded to the Circuit Court of Hanover county, to be further proceeded in, with directions to that court to cause the said Obadiah Archer and Mary his wife to be brought before the court, and then to make such decree therein in reference to Mrs. Archer’s share of the proceeds of the sale of the said shares as shall be proper.  