
    Ball’s Devisees v. Ball’s Executors and Widow.
    Tuesday, Nov. 10th, 1812.
    i. Marriage Settlement — As Bar to Marital Sights. — A marriage settlement of land and slaves, for the Wife’s jointure, "in full satisfaction of her dower, or thirds, in any lands, tenements, and heredita-ments, whereof the husband should, at any time during his life, be seised of any estate of inheritance.” was not a bar to her right of dower in the slaves; tho’made before the act of 1792, declaring slaves to be personal estate,
    a. Chancery Practice — Suit for Settlement of Administration Account — A suit in Chancery being brought by legatees against the executors and widow of the testator, for a settlement of the administration account, and distribution of the personal estate among the plaintiffs; if it appear that the widow has not fully received her share, the Court should not dismiss the bill as to her, but decree in her favour the sum to which she appears entitled.
    A marriage being about to be solemnized between William Ball and Drusilla Singleton, two deeds were signed and sealed by them, both bearing date the 12th of July, 1790; by the first of which, certain slaves, therein mentioned, (whereof she was then possessed as her own property,) and their increase, were conveyed to Samuel H. Minzies, in trust, for the use of said Dru-silla until the said marriage, afterwards to the use of the said William Ball during his life, and after his decease to the use of the said Drusilla and of her heirs and assigns forever; and by the other, one moiety of a tract of land in Frederick county, supposed to contain about 400 acres, (being the same land upon which the said William Ball then lived, the said moiety to be laid off according to quantity and quality, and to contain therein the dwelling house, kitchen, and all the out-houses appertaining to the said dwelling house,) was conveyed to the same trustee, to the use of the said William Ball during his life, without impeachment of waste, and after his death to the said Dru-silla during her life; and afterwards to the use of the heirs, &c., of William Ball, forever; it being declared, by the last mentioned deed, that the provision made for her, by it, and by the other deed aforesaid, was “intended for her jointure, and in full satisfaction of her dower or ^thirds, which she might claim to have in any lands, tenements, and hereditaments whereof, or wherein, the said- William Ball should at any time during his life be seised of any' estate of inheritance.”
    The marriage accordingly took place; and, by his last will, (dated May 14th, 1796, and admitted to probate the 6th of September following,) William Ball devised to William P. Ball and Thomas K. Ball, (two of his children by a former wife,) after the death of his widow, that part of his plantation settled upon her by way of jointure; and when his son Thomas should arrive to the age of 21 years, the other part thereof to be equally divided between them; giving the rents, in the mean time, to be equally divided between his said sons, and his three daughters, by the former wife, namely, Judith Throckmorton, Betsy Henry, and Nancy; to which five children he also bequeathed the residue of his estate, consisting ot sundry slaves and other personal property; concluding the disposing clauses of his will with the following sentence: “Should it be supposed that I have not obeyed the dictates of natural duty to my two younger children, by my present wife, by pretermitting them in the disposition of my estate, I give a reason; that is, their mother is amply provided for: I have no doubt that they will be in a situation more eligible than some of my children before spoken of: and it is further my wish, that it may not be imputed to a want of affection for them.”
    A suit in Chancery was instituted in the county Court of Frederick, by the widow against the executors, who were also appointed by the will guardians to the five devisees, for the purpose of having the moiety of the land, mentioned in tne marriage contract, laid off and allotted, and of recovering a third part of the personal estate of the deceased, her right to which, as she contended, was not barred by the join-ture. A cross bill was also filed by the executors against her, to obtain a settlement of their account of sundry articles of property *which she had received of them. The county Court, on the 9th of June, 1797, appointed commissioners, (with the assistance of the county surveyor,) to lay off the moiety of the land, by metes and bounds, to the plaintiff; and “further ordered, decreed, and adjudged, that the plaintiff is entitled to one third part of the personal estate, according to law, of which her said husband died seised, after the payment of his just debts, &c., and after a deduction from the said third of whatsoever shall be found due from the plaintiff on a cross bill now depending between the parties; and that the part of the decree relative to the third part of the personal estate as aforesaid be suspended, until the final decision of the cause depending on the cross bill before mentioned; each party paying their own costs.”
    The commissioners appointed by that decree made a report on the 2d of January, 1798, setting forth an allotment to the widow of one third of the slaves belonging to the estate, and a distribution of the other slaves among the five devisees; but saying nothing about the residue of the personal property; which report was admitted to record the 4th of April, 1798.
    In April, 1803, a bill was filed in the Superior Court of Chancery for the Staunton district, in behalf of the five children, dev-isees and legatees as aforesaid,' against the executors and the widow, for an account and distribution among the plaintiffs of the personal estate of the testator, including negroes; the plaintiffs, contending that, by the jointure, all right of the widow, to any part of his slaves or other personal estate, was altogether barred.
    Mrs. Ball, by her answer, insisted, that the real intention, as well as obvious import of the deeds of trust, was to give her a jointure, in lieu of dower in the lands only, without affecting her right to one third of the slaves, and other personal estate. In order to show more clearly the intention of her husband, she averred that, when he first made his overtures for a matrimonial '^connexion, he proposed to settle his whole estate upon her, during her life, and to s'ecure, to her sole use, the whole of her own property, slaves as well as money, amounting to between five and six hundred pounds; but this proposition was declined by her, because she thought it unreasonably liberal; the truth of which allegation in her answer was in substance, proved by the deposition of Charles Webb. She admitted that a third part of the slaves had been allotted to her under the decree of the county Court of Frederick but declared that, “with respect to the other personal estate, she had not yet received her proportion from the executors.”
    In their answer, the executors said they had paid off almost the whole of Mrs. Ball’s claim upon the personal estate of their testator, pursuant to the terms of said decree; and expressed their willingness to render a fair account; averring, also, that, in fact, they had given up to the legatees almost the whole of the personal estate. The Court of Chancery made an order of account: and a statement of the administration was reported by a commissioner, showing sundry payments to Mrs. Ball and the plaintiffs, and a balance in the hands of the executors, amounting to 2251. 3s. The cause came on to be heard the 26th of November, 1807; “and it appearing to the Court sufficiently, that it was conceded by the plaintiffs that the allotment of the slaves made to the defendant by the commissioners, under the decree of the county Court of Frederick, did not exceed her share, if she was entitled to claim a share in the slaves of her deceased husband; it was therefore decreed; ordered, and adjudged, that the bill of the plaintiffs, as to the defendant, Drusilla, be dismissed, with costs;” from which decree the plaintiffs appealed.
    Wickham, for the appellants.
    The marriage settlement being made expressly in bar of the dower “in lands, tenements, and hereditaments;” the last word comprehended slaves as effectually as if they had been specially ‘named; since, before the act of 1792, slaves were real estate of inheritance; and also real estate quoad to the right of dower; for the heir was not compelled to account for the appraised value of such slaves as were included in the widow’s dower.
    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.
    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 Call, 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, plainly evinces that the legislature considered them as personal estate, relatively to dower. In that section, slaves are spoken of as included in goods ánd chattels. This is a clear legislative exposition 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, she was entitled to “one half” of the slaves during her life, in the event of her husband’s leaving no child.
    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.” 
    
    The agreement should have a reasonable construction, according to what both patties intended, which intention appears from the circumstance that, by another deed, bearing even date with that for the land, a separate provision 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.
    *The word “thirds” ought to be understood in the common or popular sense. By that word the parties undoubtedly meant all the wife’s interest, by way of dower, in the property.
    
      
      The principal case is cited in Alexander v. Coleman. 6 Munf. 333, 340, 341, 343, 348; Pate v. McClure, 4 Rand. 176.
    
    
      
       Revised Code, 1st vol. p. 163, ch. 92, sect. 25.
    
    
      
       Acts of 1785, ch. 61, sect. 26; Revised Code, 1st vol p 164, ch. 92, sect. 27.
    
    
      
       Judge Fleming’s opinion, 2 Call, 473.
    
   Monday, February 22d, 1813, the President delivered the Court’s opinion, “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, pursuant to-the decree of the county Court of Frederick. Therefore, 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 of distribution to-be made of the residue of the personal estate amongst all parties interested therein. ’ ”  