
    Richmond.
    Hayes v. Ewell’s adm'r & als.
    
    (Absent Brooke and Allen, J’s.)
    1847. April Term.
    
    A chose in action is bequeathed to A for life, and remainder to J3, the wife of C. A and C unite in a voluntary assignment of the chose to D. C survives A; and before the chose is reduced into possession by D, C dies, leaving his wife surviving him. Held : The wife is entitled to the chose.
    
    
      Thomas Winder Ewell died in the year 1784. By his will dated the 26th of May 1780, and admitted to record in March 1784, he devised and bequeathed his whole estate, real and personal, to his father Bertrand Ewell for his life, then, to his mother for her life, and at her death equally to be divided among his nine brothers and sisters. The father survived him; but the mother died during his life. At the time of his death three of his sisters were married ; and one was a widow.
    By a deed dated on the 4th of May 1784, Bertrand Eioell, his sons and the husbands of his three daughters, reciting in said deed the devise and bequest of Thomas Winder Eivell as above stated, “and that from sundry depositions upon that occasion lately taken, it appears that the said Thomas Winder Ewell, a little before his death, meant and intended to alter his said will, and'dispose of all his estate, both real and personal, to his sister Sarah Ewell," — “ therefore, in conformity to the said Thomas Winder Ewell's late intentions, as expressed in the depositions aforesaid, as well as for and in consideration of divers good causes them thereunto moving,” they conveyed all the estate, real and personal, of the said Thomas Winder Ewell, whether in possession or exPectancy.- to &'arah Ewell; with warranty against themselves and all claiming under them.
    
      Thomas Winder Ewell, at his death, possessed an inconsiderable estate, independent of his claim upon the State of Virginia for half pay as a captain in the State service during the war of the revolution. So much as there was, however, was taken by Sarah Ewell, under the deed aforesaid, and her title to it had never been disputed.
    It was admitted that the husbands of the three sisters who executed the deed of May 1784, survived Bertrand Ewell the father; but they were survived by their wives.
    
      Sarah Ewell died in 1816, having made her will by which she devised and bequeathed the residue of her estate, after certain specific legacies, to her niece Sally E. Hayes.
    
    
      Sarah E. Hayes having qualified as the administratrix with the will annexed of Thomas Winder Ewell, received from the State of Virginia in 1837, the sum of 10,136 dollars on account of his claim for half pay; and some question having been made as to the extent of her interest therein, she brought this suit for the purpose of having the question settled.
    The Court below held that the three married sisters of Thomas Winder Ewell, having survived their husbands, the deed of May 1784 did not pass their interest in his estate: and therefore made a decree giving to Sarah E. Hayes, as legatee of Sarah Ewell, five ninths of the fund ; to the representative of the unmarried sister who did not execute the deed, one ninth ; and to the representatives of the three sisters whose husbands had executed it, each, one ninth. From this decree 
      Sarah E. Hayes applied to this Court for an appeal, which was allowed.
    
      The Attorney General, P. V. Daniel jr., and H. C. Cubell, for the appellant, insisted:
    1st. That the conveyance by the husbands of the interest of their wives in Thomas Winder Ewell's estate, was upon valuable consideration. To prove this, they relied upon the recitals in the deed, which they insisted, after fifty years, and an acquiescence therein for upwards of forty years, must be taken as true. Taking these recitals as evidence, they insisted that on either of the grounds, of compromise of doubtful rights, or the settlement of family disputes, or the prevention of frauds on third persons, or on all of them, the consideration for the conveyance was valuable. And they referred to 1 Story’s Equ. p. 125, § 113, 144, § 130, 145, § 131; Cann v. Cann, 1 P. Wms. 723; Stapleton v. Stapleton, 1 Atk. R. 2; Zan'es devisees v. Zane, 6 Munf. 406; Stockley v. Stockley, 1 Ves. & Bea. 23; Story on Cont. 84, § 132; and the cases there cited.
    2d. They insisted that it was not necessary the assignment should be for value. And they referred to Siter, Guardian of Jordan, 4 Rawle’s R. 468; Honner v. Morton, 3 Cond. Eng. Ch. R. 298; Baldwin's opinion in Yerby & wife v. Lynch &c. 3 Gratt. 460.
    3d. They insisted that the conveyance of the husbands was valid to transfer the interest of their wives either as a release or an assignment. That it would operate as a release, because Bertrand Eivell the father, having executed the same deed, and thereby passed his life interest to Sarah Ewell, the conveyance of the husbands would operate as a release to her of the remainder. For which they referred to Bac. Abr. title Release, letter H; Gage v. Acton, 1 Salk. R. 327; Chamberlayne v. Hensell, 1 Ld. Ray. R. 73; 1 Daniel’s Ch. Pr. 157; 1 Salk. R. 115. That it was valid as an assignment, because although it was not an interest in possession at the time of the conveyance, yet the husbands having survived Bertrand Ewell, the assignment was valid. And they referred to Honner v. Morton, 3 Cond. Eng. Ch. R. 298; Bush v. Dalway, l Ves. sr. 19; Upshaw v. Upshaw, 2 Hen. & Munf. 381; Roper on Husband and Wife 242, 32 Law Libr. 151; Grey v. Kentish, 1 Atk. R. 280; Atkins v. Dawbeny, Gilb. Equ. R. 88; Bosvil v. Brander, 1 P. Wms. 458; Bates v. Dandy, 1 Russ. R. 32, in note; Earl Salisbury v. Newton, 1 Eden’s R. 370; Browning v. Headley, 2 Rob. R. 340, the opinion of Allen, J. And they insisted that the assignment is always valid when the husband or his assignee can proceed to recover the chose in his own name ; 1 Story’s Equ. ch. 2, § 59; which was the case here, as the appellant was the legatee of the assignee; and as administratrix of Thomas Winder Ewell held the fund in her own hands.
    4th. They insisted, that by thirty years delay in asserting their claim, the surviving wives had waived and abandoned their claim; and it was now too late for their representatives to assert it. And they referred to 2 Story’s Equ. 796, § 1417; Honner v. Morton, 3 Cond. Eng. Ch. R. 298.
    
      Morson, for the appellees, insisted :
    1st. That the assignment by the husbands of the interest of their wives under the will of Thomas Winder Ewell, was not on valuable consideration ; which all .the books una vocc, tell us is not good to deprive the wife of her right of survivorship. On this point he insisted there could be no doubt in this Court. That it Avas the doctrine of Browning v. Headley, 2 Rob. R. 340; of the whole Court in Yerby & wife v. Lynch &c. 3 Gratt. 460; and of the English Courts. And he referred to Mitford v. Mitford, 9 Ves. 87; Burnett v. Kinaston, 2 Vern. R. 401; Bates v. Dandy, 2 Atk. R. 207: Honner v. Morton, 3 Cond. Eng. Ch. R. 298; Hornsby v. Lee, 2 Madd. R. 349; Stamper v. Barker, 5 Madd. 57; Daniel’s Ch. Pr. 154. Taking it that the assignment must be for value, he referred to Blow v. Maynard, 2 Leigh 29, to shew that the recitals in the deed were not evidence against persons not parties to it, and that there was, therefore, no proof of valuable consideration for the assignment. And he insisted further that the recitals in the deed shewed that it was a voluntary assignment.
    2d. Ho insisted secondly, that if the assignment was for value, the wives having survived their husbands, their rights were not affected by it. He referred to the case of Purdew v. Jackson, 1 Russ. 1, as a case in which the whole doctrine involved in this case was fully investigated ; and the decision was in favour of the surviving wife. And he insisted that the doctrine now settled in England is, that the chose of the wife, whether a present or reversionary interest, and whether assigned for value or voluntarily, if not reduced into possession during the life of the husband, survived to the wife. And in support of this doctrine he referred to Hornsby v. Lee, 2 Madd. 349; Elwin v. Williams, 13 Simon’s R. 309; Ashby v. Ashby, reported in Daniel’s Ch. Pr. 155.
    3d. He insisted there had been no waiver or abandonment of the rights of the surviving wives. That the fund had not been received until 1837 ; and therefore no action could have been taken to enforce their rights prior to that period. Since that time there had been no- delay.
   Br the Court.

Affirm the decree.  