
    Willamson’s Adm’rs. vs. Smart and Kilbee.
    This was an action of trover, brought in Halifax superior court of law, to recover the value of several slaves, and the following special verdict: was found, viz.—That Thomas Davis, in the year of our Lord 1721, on the 4th day of March, duly executed his last will and testament, as follows, viz.
    " In the name of GOD—amen—I, Thomas " Davis, of the upper parish of the county of " Isle of Wight, being of sound sense and memo- " ry, and calling to mind the certainty of death, " and the uncertainty when, do make this my last " will and testament, &c. I give and bequeath to " my sons Thomas Davis and William Davis, " all my tract of land I bought of the widow " Blake, to be equally divided among them; my " son Thomas to enjoy that part whereon he now " lives, and my son William that part where my " son lived. I say I give the lands unto my " aforesaid sons, and their heirs forever, and my " will is, that if either of my aforesaid sons shall " think fit to dispose of his part, that the other " shall have the refusal, if he desires it, paying " a reasonable rate.—Item, I give and bequeath " to my daughter Frances Williamson, the use of " my negro Sarah, for and during her natural life, " and after her decease, I give the said negro " Sarah and her increase, amongst the children 
      " lawfully begotten of her body, to be equally " divided among them. Which said negro girl " Sarah so bequeathed, shall be in full of any " further demand of any part or parcel of my " estate; and I declare that my son George Wil- " liamson, and my daughter, shall have no more right to claim any thing else.—Item, I give " unto my loving wife Elizabeth Davis, the plan-" tation I now live on, for and during her natu- " ral life, and after her decease I give the said " land to Benjamin Davis and to his heirs for- " ever.—Item, I give to my grandson Thomas " Davis, a negro boy called Robin, and the heirs " of his body lawfully begotten; and for want of " such heirs after his decease I give the said ne- " gro to my son Benjamin and to his heirs for- " ever,—Item, I give to my son Thomas Davis, " and his heirs, my negro boy Harry.— Item, I " give to my son William Davis and his heirs, " my negro boy called Sam.—I give and be- " queath to my loving wife, the use of my negro “ woman Cate, during her life, and after her de- " cease I give the said negro woman and her in- " crease unto my son Benjamin Davis and the " heirs of his body, and for the want of such " heirs then to Thomas, William, Edward and " Benjamin Davis, to be equally divided amongst " them.—Item, I give to my wife during her wi- " dowhood, my negro boy Dick, and afterwards " I give the said negro boy Dick unto my son " Edward and his heirs.—Item, I give unto my " loving wife Elizabeth, my plantation bought " by me of William Exum, during the term of " her widowhood, and no longer —Item, I give “ my lands aforesaid, bought of William Exum, " unto my son Edward Davis and his heirs for- " ever.— I give and bequeath the use of “ all the rest and residue of my estate unto mv " loving wife during the term of her widowhood; " when she shall marry again, I give the same to " be equally divided amongst my sons Thomas, “ William, Edward and Benjamin, share alike " with her, and do appoint my loving wife Eli- " zabeth Davis sole executrix of this my last " will, hereby revoking any and all other wills, “ whether by word or deed, heretofore made or done.—Witness my hand this 6th of March, 1721.”
    
      Signed, Thomas Davis, (Seal.)
    
    Which was duly admitted to probate in the court for said county of Isle of Wight, on the 23d of April, 1722. And the jury do further find, that the said Frances Williamson, in the said will named, had six children lawfully begotten, and among others her son William Williamson, who moved into this state, then province, and died in the year 1768, in the month of April, leaving nine children, and amongst others George Williamson, his eldest son and heir at law. And the jury further find, that the said Frances Williamson departed this life some time in the month of January or February, 1769. And the jury further find, that on the 23d of March, 1769, the following proceedings were had in the county court of Amelia, in the dominion of Virginia, as appears by the copy of the record in these words:
    At a court held for Amelia county, March 23, 1769.
    
      
      Jacob Williamson, George Williamson, John Moreley & Elizabeth his wife, Henry Turpin & Anne his wife, vs. George Williamson, an infant under the age of 21 years, by George William-son his guardian, & Nathaniel Wil-liamson, an infant, by Nathaniel Williamson his guardian. In Chancery.
    This cause was this day heard upon the bill of the complainants and the answer of the defendants. In consideration whereof, it is decreed and ordered, that William Archer, John Scott, William Giles and Edward Rofs, or any three of them, do divide the slaves in the bill mentioned, viz. Sharper, Dick, Peter, Doll, Cæsar, Edith, Patt, Sall, Cate, Jane, Phebe, Lucy, Dill, Phill, Lewis, Aggy, Hannah, Sall, Bob, Sukey and Roger, agreeable to the last will of Thomas Davis, deceased; and that they allot and assign unto the plaintiffs each a sixth part thereof, having regard to the value of the slaves in said division; and that they make report to the court, in order to a final decree.
    
      Amelia County, March 31, 1769.
    Pursuant to the above decree, we have divided the negroes, and allotted them to the persons therein mentioned, in the following manner, viz. John Moreley’s lot, Dick, Cate, Lewis and Lucy—Jacob Willamson’s lot, Sharper, Cæsar, Edy and Dill—George Williamson, son of William Williamson, Sall, Sall, Hannah and Phœbe—Henry Turpin’s lot, Peter, Doll, Sall and Pat—Nathan Williamson's lot, Aggy, Sukey and Bob—George Williamson’s lot, Jane, Roger and Phil.
    And the jury further find, that the said Sall, Sall, Phœbe and Hannah, in the said division named, were a part of the increase of the said negro woman Sall, in the aforesaid will of the said Thomas Davis mentioned, and a sixth part of the negroes descended from said negro Sall.
    And the jury do further find, that Sarah, in the said will bequethed, was at the time of the death of the said Thomas Davis, in the dominion of Virginia; and the said other negroes, Sall, Sall, Hannah and Phœbe, from the time of their birth until the day of the division above mentioned, had also continued in the dominion, now state of Virginia.
    
    And the jury do further find, that the said William Williamson above named, died in this province, in the county of Bute, in the month of April, in the year 1768, and that his widow, one of the plaintiffs, since married to Peter Cox, the other of the said plaintiffs took out letters of administration on the estate of the said William Williamson, the 9th day of February, 1769.
    And the jury do further find, that the said George Williamson, by his guardian George Williamson the elder, did receive and take into his possession, the said negroes in the said record of the court of Amelia above stated; and some time afterwards, upon coming to age, he brought said negroes into this state; and that the said negroes afterwards had the following increase, viz.-John, Cate, Lewis, Fanny, Arthur, Nancy, Rachel and Milley.
    And the jury do further find, that the said George departed this life in the month of August, in the year 1780, leaving his widow and a child named Nathan.-And the jurors do further find that their possession was a joint possession.
    And the jurors do further find, that the wife of the said Kilbee obtained letters of administration on the estate of her husband George Williamson the younger, soon after his death; and the said Peter Smart is the guardian of the child of said George Williamson, deceased.
    And the jurors do further find, that the said Peter Cox demanded the said negroes of the said Smart and Kilbee, in right of his wife as administratrix, in the year 1786.—With respect to the law, the jurors are ignorant, and pray the opinion of the court thereon—if it be for the plaintiff, they assess his damage to £. 800—if for the defendants, they find them not guilty.
   Hall, Judge.

In this case both the plaintiffs and defendants claim the negroes for which this action is brought, under William Williamson, one of the legatees of Thomas Davis. The special verdict states, that William Williamson removed himself to and became a citizen of this state, where he lived to the time of his death. It is admitted that, at the time of his death, by the laws of Virginia negro property was made to descend like land to the heirs at law, he making on that account home pecuniary satisfaction to the next of kin; and that at that time, by the laws of this state, property of that description was made distributable equally amongst all the children of an intestate. The question is, whether the negroes for which this suit is brought shall be disposed of agreeably to the laws of Virginia, (they having been in Virginia at the time of the death of William Williamson, their owner) or by the laws of this state, where William Williamson was a resident at the time of his death. I take the rule of law in such case to be this : that the personal estate of the intestate is distributable according to the laws of the Country where the intestate was a resident, or, in other words, where he was a citizen or subject at the time of his death. Ambler 25, 415. 2. Vesey 35. Although by the laws of Virginia negroes are made to descend like land to the heir at law, in many other respects they are considered to be personal estate ; and indeed our law would view them as personal estate, when any case like the present would occur, notwithstanding the laws of Virginia would ever view them in all respects as real property. I cannot think the decree made by the court of Amelia strengthens the defendants title, because the plaintiffs were not parties to it—had they been parties to it, and the grounds on which the present pretensions rest been made known to that court, I presume their decree would have been different. I think that all the children of William Williamson are equally entitled to the property in dispute, among whom the plaintiff will be compellable to make distribution, after debts are paid, &c. and that judgment should be entered for the plaintiffs.

Johnston, Judge.—

Judge Taylor having fully explained the principles on which I found my decision, it is unnecessary to repeat them—I concur fully with him.

Taylor, Judge.—

The material facts of this case are, that Thomas Davis, by his will, which was admitted to probate in the year 1722, bequeathed a female slave, of the name of Sarah, to his daughter Frances Williamson, during her life, and after her decease, the wench and her increase to be equally divided among the children of Frances.—Frances had six children, one of whom, William, removed into this state, and died in 1768, leaving a widow and nine children; George being his eldest son. Afterwards, in the beginning of the year 1769, Frances died; upon which the issue of Sarah were divided, under the authority of a Court of Chancery in Virginia. A sixth part was allotted to George, as the heir at law of William—this was received by his guardian, and afterwards upon his arriving at full age brought into this state by himself; until which time, all the negroes descended from Sarah had remained constantly in Virginia. George died in the year 1780, leaving a widow and child, who possessed themselves of the negroes, which they have retained ever since. The Widow of William administered upon her husband's estate, and afterwards intermarried with Peter Cox, who, together with his wife, hath brought the prefect suit, to recover the negroes as of the goods and chattels of William; having previously demanded them of the defendants,, one of whom defends as administrator in right of his wife, to George Williamson, and the other as guardian to George’s child.

From these facts two questions arise: one is whether the division made in Virginia ought not, as far as it respected the share claimed through William, to have been according to the laws of this state, whereof William before and at the time of his death was a citizen and inhabitant? The other is, whether, upon the supposition that the division was improperly made, the decree directing it is not conclusive, as the sentence of a court of competent jurisdiction.

0As to the firft, f confider it perfeftly clear and well fettled, that although the defcent of lands is to be regulated according to the law of the country wherein they are fituated, yet the fucceffion and distribution of moveable property is to be guided by the law of the country where the owner has his domicile. This is a principle of the law of nations, which hath been recognized and fanbtioned by a variety of adjudications. 2 Vesey 35. Ambler 25. 4 Term 184, &c. Bl. 131, 437, 691. Ld. Kaimes 274. Vattel, b. 2, c. 7, s. 85; c. 8, s. 109, 110. I can entertain no doubt that these authorities must be approved and acted on, by the courts of this state, upon an application to distribute the effects of a foreigner, if made within due time; and that they would receive evidence of the law according to which the distribution was sought. I do not indeed recollect any decision upon this point in our own courts; but my opinion is sounded no less upon the weight and number of the cases, than upon the intrinsic justice of the principle which pervades them. It seems also to acquire strength in its application to the United States, from the nature of their political relations, which are calculated equally to cherish a spirit of friendly intercourse amongst their respective citizens, and to promote in each state a deference to the laws of all.

The court of Virginia would without doubt have given effect to the claims of the other parties concerned, unless there be some law of that state expressly to prevent it: The existence of such a law, however, cannot well be imagined, because there can be no reason wherefore that state should be concerned about the manner in which strangers hold that sort of property, which they may freely carry away with them. All that, as a state, they can be interested in ascertaining, is, whether the party asserting a claim, has really a right, according to the laws of his own country; and whether those laws vest a chattel in one person, or direct its division among twenty, they equally merit respect and observance. Therefore, if in the state of Virginia this property is cloathed with some of the qualities of real estate—if like that it is made descendable to the heirs at law, and exempted from the payment of debts where there are sufficient assets without it, so far its nature is changed; but in all other respects it remains and must be considered as chattel property—and the local policy which hath thus distinguished it, must necessarily confine the operation of the laws respecting it to the citizens and inhabitants of that state: This must be understood, however, in relation to the laws ascertaining the right, and not those prescribing the remedy. The latter must, from their nature, bind equally strangers and citizens.

Slaves being then chattel property, notwithstanding incidents annexed to it applicable only to the citizens of that state, there is a conflict of laws in the two states relative to them: and in every such case, the laws of the country where the owner resides must prevail.—2dly. The order made by the Court of Chancery in Virginia, relative to this division, cannot be conclusive as to the title of the negroes in question. Of the persons claiming a right under William, George alone was party to the suit in which it was pronounced. The other children, and the widow of William, were neither parties nor privies, nor was there any person before the court interested to protect their rights, or even to disclose them. Had the distribution been amongst all, George's share would have been so much the less, and therefore he was interested to keep their pretensions out of view. Besides, the points now in contest were not decided upon the former occasion: The only question then was, whether the property should be divided into six equal shares, in which no doubt all the parties concurred—the question now is, whether the widow and children, shall share with George the sixth part he received. The present plaintiffs, therefore, and those for whom they claim, have never been, heard, their rights have never been asserted; and under such circumstances, it is contrary to natural justice, and to the law both of Virginia and this state, that they should be concluded by the decree. My opinion is, consequently, in favour of the plaintiffs.

Macay, Judges

It is sufficient for the determination of this cause, that in Virginia negro slaves are considered as chattel property—Wash. Rep.—Immovable property follows the disposition of that state wherein it is situated; but the succession and disposition of movable property, is not regulated by the law of the country where it is locally situated, but by that of the owner’s patria or domicile—4 Term Rep. 184.— Hunter vs, Potts.—Judgment for plaintiffs.  