
    Elizabeth Upshaw v. Le Roy Upshaw, and Others.
    April, 1808.
    Husband and Wife — Survivorship.—A husband dying in the liie-time of his wife has not a right to devise away slaves, to which she is entitled in remainder or reversion, the particular estate having not expired ; though he may, in his life-time, sell his and her interest in them, for a valuable consideration.
    
      Same — Wills—Election—Case at Bar. — In such a case, however, if the husband does devise such slaves away from the wife, and devises other property to herself for life with remainder over to other persons in fee-simple; and she takes possession of the estate devised to her by him; holds it for many years, and then disposes of part of it to those entitled in remainder, in consideration of their enlarging- her interest in the residue to a fee-simple: she thereby makes her election to accept the provision made for her in the will, and precludes herself from holding the slaves also; these circumstances together with her taking possession of the slaves, being sufficient evidence of her having such knowledge of the two funds as is requisite to make such election obligatory.
    Wills — Devisees—Interest—Case at Bar. — Interest allowed to a devisee of slaves, in remainder, and certain expenses of maintenance, &c. the devisee having: paid a sum of money to relieve them from execution, while in possession of tenant for life, and afterwards, supposing herself entitled to them, and having taken them into her own possession, was compelled by a Court of Equity to relinquish them.
    On an appeal from a decree of the Superior Court of Chancery for the Richmond District Court, pronounced on the 3d of June, 1803, in favour of the appellees, as plaintiffs, against the appellant, defendant.
    *This suit grew out of the last wills of John Hunt and William Upshaw; and the sole question was, whether, under the circumstances of the case, Elizabeth Upshaw, sister of the former and wife of the latter, by accepting the provision made by the will of her husband, had not so far made her election, that she could not after-wards retain the property which the said Hunt, during the time when she was the wife of the said Upshaw, had devised to her, and which property her husband had bequeathed to other persons.
    The fact were these. John Hunt, being entitled to the reversion of a member of slaves after the death of his mother, Ann Upshaw, who was still living, made his will on the 28th of December, 1760, which consisted of the following bequest only: “I give and bequeath unto my sister Mary Ann Dillard, and Elizabeth Upshaw, all my negroes after my mother’s decease to be equally divided, except one young\ negro named Cemp, to James Upshaw, to them and their heirs lawfully begotten forever.” The testator died soon after, and his will was duly proved and admitted to record in the Court of Essex County, on the 19th of January, 1761. Elizabeth Upshaw, the legatee named in the will, was at that time the wife of William Upshaw, who, on the 17th of January, 1761, made his will, whereby he “lent to his said wife, Elizabeth Upshaw, the whole of his estate both real and personal during her widowhood, and after her decease to the heirs of James Up-shaw, to be equally divided amongst them,” &c. and on the 1st of June, 1761, he annexed a codicil in these words: “N. B. The negroes in the possession of Mrs. Ann Upshaw, that was gave my wife by her brother John Hunt, my part I desire may be equally divided amongst my uncle Forest Upshaw’s three children at their mother’s decease, Eeroy, Milley, and John, to them and their heirs forever.”
    Of this will he appointed his wife and James Upshaw, executrix and executor. ^William Upshaw never reduced those negroes into possession, having died shortly after making his will, (which, with the codicil, was duly proved on the 17th of August, 1762,) and Ann Upshaw, the tenant for life, having survived him, died in the year, 1795. Elizabeth, the widow of William Upshaw, accepted the provision made for her by the will of her husband, and after being in possession of his whole estate for more than twenty years, she gave up part of it to those entitled in the remainder, (the children of James Up-shaw,) in consideration of their enlarging her interest in the residue to a fee-simple: she also, on the death of Ann Upshaw, took possession of a moiety of the slaves which had been bequeathed to her by her brother John Hunt.
    The appellees, (the complainants in the Court of Chancery,) are the three children of Forest Upshaw named in the codicil to William Upshaw’s will, and were brothers and sisters, of the half blood of John Hunt. In March, 1797, they filed their bill in the High Court of Chancery, against Elizabeth Upshaw, stating the above facts, claiming a discovery of those slaves, and asserting a title to them and their profits, on the ground, that the title in remainder in the said slaves after the death of Ann Upshaw either vested in William Upshaw, or, being devised away by him, ought not now to be claimed by his widow, who under this will had held property of greater value and received the profits thereof for more than twenty-five years, and thereby, as well as by the contract since made with the other legatees of William Upshaw, had made her election to submit to his will.
    The appellant, (the defendant in the Court of Chancery,) in her answer, admits the wills of John Hunt and William Up-shaw, but contends that as John Hunt was entitled as heir at law, to the slaves in reversion after the death of his mother, Ann Upshaw, by which they were held for life in right of dower; and, as William Upshaw died before the expiration of the dower estate, he could not deprive her of the slaves which had been specifically bequeathed to her *by the will of John Hunt, and which had never been reduced into possession by her husband. None of the other allegations in the bill are denied in the answer; but she states that she was obliged to pay, together with James Dillard, her sister’s husband, the sum of 771. 16s. 4d. 1-2, towards the discharge of John Hunt’s debts, for which those slaves were liable, and advertised, to be sold by his administrator; which she supposes to have been the full value at that time, as they were tinder the incumbrance of her mother’s dower estate; and therefore hopes that she may be considered in the light of a purchaser, inasmuch as if the slaves had died she must have lost her money, John Hunt having left no other estate to pay his debts; but, in any event, that she may be considered as entitled to a lien on the slaves, for the money so paid with interest.
    The proof as to the payment of the debts of John Hunt was very defective, resting merely on the declarations of Dillard that he had paid a certain sum of money to the administrator, with some other circumstances not of themselves amounting to full proof.
    The Chancellor being of opinion that the defendant Elizabeth Upshaw could not righteously retain both one half of the slaves which belonged to John Hunt, and the property bequeathed to her by her husband, and that by disposing of part of the latter, she had disabled herself to resign the ■one and elect the other, decreed that on payment by the plaintiffs to the defendant ■of one half of those debts of John Hunt with which the said slaves were chargeable, the defendant should deliver up such of them as were held by her, with the increase of the females, and account for their profits before a commissioner, who was also to state an account of the said debts of John Hunt.
    The defendant appealed to this Court.
    This cause was argued on the 29th of June, 1807, by Hay and Randolph, for the appellant, and by Wickham, for the appel-lees. On account of the continued indisposition of Judge Lyons, who sat in the cause, the other Judges ^delayed giving an opinion till this term, when they were unanimous for affirming the decree of the Chancellor.
    Hay, for the appellant.
    The first question is, had William Upshaw a right to devise those slaves to the appellees? Or, did they not survive to his wife? This question he had supposed was forever settled by the decision of this Court in Wallace and wife v. Taliaferro and wife,  where it was resolved, after a full consideration of the acts of 1705, and 1727, and a review of all the cases, that the husband could not devise slaves, to which he was entitled in right of his wife, unless they were reduced into possession during the coverture; and, in the event of the wife’s surviving the husband, the slaves also survived to her.
    Another point arises in the case which is attended with more difficulty. It may be said that, admitting William Upshaw had no right to dispose of those slaves from his wife, still, as he has given her a beneficial interest under his will, she will be compelled to make her election, and cannot take both. In answer to this, the authority of Powel may be quoted, who expressly says that no case has gone so far as to establish this general position,  But if the doctrine be correct, as laid down by Bacon,  and others, that no person may claim under the will and against the will, it cannot effect the case of Elizabeth Upshaw: she claims those slaves under the will of John Hunt, not under that of William Upshaw. The appellees, Le Roy Upshaw and others, claim under the will of John Hunt alone.
    Randolph, on the same side,
    relied on the case of Cull and wife and others v. Showell and others,  as decisive of this question. In that case it was held that the testatrix merely intending to give away property, to which she believed she had a right, but being mistaken in that belief, the doctrine of election did not apply. The reason of the difference between our case and others is this. It may be supposed that it was never the intention of a man espe-386 cially in the case of his wife, *to give her estate away. William Upshaw believed the negroes were his; for he devises them as his part.
    Wickham, for the appellees.
    It was not contended that these slaves were absolutely vested in William Upshaw the husband of the appellant; for according to the decision of this Court in the case of Wallace and wife v. Taliaferro and wife, the wife surviving the husband is entitled, in remainder, to slaves not reduced into possession during the coverture; yet it is equally true, that if the husband chooses to exercise an act of ownership over them, as to release his interest, or dispose of them in any manner, he has power to do so. The husband in this case, having such right, exercises it by giving the slaves to the ap-pellees. He gives by the same will, all his estate to his wife during her life. She accepts of the provision of the will; and after-wards puts it out of her power to renounce it, by a sale of the property. Taking possession of this estate she had a right to dispose of it. She had an estate for life under the will of her husband upwards of twenty years in possession: this sue sells for other property: she sells it for value received. She must be considered as having an interest because she derived a benefit. If a wife takes as devisee she takes as devisee in all respects. She may make her election either to stand by the will or not. In this case she has made her election, and has by her own act, put it out of her power to renounce it.
    The authority relied on by Mr. Randolph, even if it had not been overruled by latter determinations, does not apply. There, a person was merely exercising a power; she was not disposing of an estate of her own by will. She had no idea that she was giving away her own property. But the case of Cull and wife v. Showell and others, as to the point relied on by the opposite counsel, has been impeached in the case of Whistler v. Webster,  and other cases. KAU the cases on the doctrine of elections go'to establish the principle, that a person cannot claim under and against a will, 
    
    
      
       2 Gall, 447.
    
    
      
       See Powel on Devises, 465.
    
    
      
       See Snppl. to 7 Bac. Abr. by Gwil. 444.
    
    
      
       Amk 727.
    
    
      
       2 Ves. ]'m. 370.
    
    
      
       See 7 Bac. Abr. by Gwil. 444, tit. “Election,” where all the cases on this subject are collected.
    
   Thursday, April 28. The Judges delivered their opinions.

JUDGE TUCKER.

The appellees filed their bill, stating that John Hunt, being possessed of several slaves and other property, made his will December 28th, 1760, whereby he devised to his sisters Mary Ann Dillard, and Elizabeth Upshaw, (the appellant,) all his negroes after the death of his mother Anne Upshaw, who was also mother of the appellees. That William Up-shaw the husband of Elizabeth, the legatee, on the 17th of January, 1761, made his will, whereby he gave to his wife his whole estate real and personal during her widowhood, and after her decease to the heirs of James Upshaw, equally to be divided amongst them: and by a codicil dated in June, 1761, he devised the negroes in the possession of Mrs. Anne Upshaw, that were given to his wife by her brother John Hunt, his part he desired might be equally divided among his uncle Forest Upshaw’s three children, at their mother’s decease. ” The appellees are those children' — and Elizabeth Upshaw having taken possession of the estate of her husband William, and enjoyed it more than twenty years, on the death of her mother Anne Upshaw, possessed herself of a moiety of the slaves, devised to her by her brother J. Hunt; to recover which is the object of the bill. The appellant admits the wills of J. Hunt and William Upshaw; but contends the latter had no right to bequeath the slaves in question ; he having died in the life of Anne Upshaw, who held them as her dower. And that she was obliged to pay, together with James Dillard, her sister’s husband, the sum of 771. 16s. 4d. 1-2 towards the discharge of John Hunt’s debts for which those slaves were liable and advertised by the administrator to be sold; which she supposes *to have been their full value at that time, as they were then under the in-cumbrance of her mother’s dower estate: and, therefore, hopes she may be considered as a purchaser, J. Hunt having no other estate left for payment of his debts; but in any event that she may be considered as having a lien in the slaves for the money so paid with interest.

The Chancellor decreed the slaves with their profits to the appellees, upon payment by them to the appellant of one half those debts of J. Hunt with which these slaves were chargeable. The defendant appealed.

The doctrine of elections seems to have been fully considered by Mr. Powell, in his treatise on devises. Therein he lays down the following principles, on the authority of Lord Ch. J. Talbot, in the case of Streat-field v. Streatfield. “When a man takes upon him to devise what he has no power over, upon the supposition that his will, will be acquiesced under, the Court of Chancery will compel the devisee to take entirely, but not partially under it; there being a tacit condition annexed to all devises of this nature,- that the devisee do not disturb the disposition that the devisor has made. ”

To the same effect are the remarks of Lord Ch. J. De Grey, in his judgment in Pulteney v. Lord Darlington ; “A man may by a mean, and indirectly, give what is not his own, either by express condition, or equity arising upon an implied condition.’’ And to the same effect is Whistler v. Webster,

And the rule equally applies, says Powel, whether the benefit under the will be immediate or consequential; for though the effect in such cases is, that the devise operates as. a satisfaction for the previous interest of the devisee,, yet the principles by which satisfactions strictly speaking, are governed, do not apply to cases of this kind; therefore, it is not necessary that the thing devised should be of the same nature, or of adequate value, with the thing in lieu of which it is to be received,

And Lord Talbot, where the will comprised both real and personal estate, and the land, to which one child was ^entitled in tail, was thereby given to another, and a personal legacy to the tenant in tail, went so far as to infer an intent, that whoever took by that will should comply with the whole, and put the party to an election of the estate tail, or the personal legacy,

To these rules there are some exceptions, or rather qualifications, as if the devisee be a creditor, and not a volunteer, and some others,

But (it is said) no case upon this rule has yet gone so far as to establish the proposition that, if a devisor in his will takes upon himself to dispose of an estate in which he has no interest, but which is absolutely another’s, and, in the same will, gives a beneficial thing to the owner of such estate, the. owner of the estate shall either waive the benefit of the devise, or renounce his estate: the foundation of the rule being'a supposed misconception of the testator as to the situation of his own property, And this observation was particularly relied on by the appellant’s counsel.

True it is, William Upshaw, by his codicil, gave the appellees what he had no power to bequeath; his wife’s interest in the dower slaves held by her mother being merely a reversionary interest, which, in the event of her surviving her husband, without his disposing thereof in his lifetime, or reducing the slaves into possession, would survive to her. But it is clear from the words of the codicil, that he thought the slaves were his own, and that he had a power to bequeath them by his will. This was clearly a misconception of his right in respect to them. For, though he might have sold his wife’s reversionary right, it being a vested interest, yet, if he neglected to do so, he could not dispose of it by will, but it would survive to her. The case of Dade v. Alexander, 'I conceive, does not affect this principle; for the husband’s right was in that case decided to be absolute, in case he survived the wife; but here she was the survivor.

But, in order to put a devisee to the alternative of either waiving his own interest under a will, or foregoing his claim to some interest disposed of therein, to which he is previously *entitled independent of the will, it must be clearly evinced that the devisees taking both will defeat the general intent of the dev-isor.

In the present case it was manifestly the testator’s intention to limit his bounty to his wife to the period of her widowhood, or perhaps her life, after which he bequeaths the estate before given to her, (or rather, to use his own words, lent to her,) for life, at most, to the children of James TTpshaw. Whether he was at that time apprised of the bequest of his wife in John, Hunt’s will, does not appear; but the codicil manifests an intention to make some provision for his uncle Forest Upshaw’s children, the appellees; and he has done it in such a way, as to compel the appellant to elect either to forego the use of his property, so long as she continued a widow, or to renounce the benefit of the reversion, whenever it should happen. The devise to her being of the use of his whole estate during her life, gives great weight, I think, to this construction. In the case of Whistler v. Webster, it is held “that a clear knowledge of the funds, being requisite to election, no person shall be bound to elect without such previous knowledge. ” Many other cases may be cited to the same effect: and the rule appears to me to be so reasonable, just, and consonant with every principle of equity, that I think it ought to be adopted. In the present case, the compromise between the appellee and the remainder-men may be considered as some evidence of such knowledge; and the nature of that compromise is such that it would seem that, in making it, she had determined her election. Otherwise, I should have inclined to think she could not have been considered as concluded of her election, until the death of Anne Up-shaw put it in her power to ascertain the *amount and value, both of the property and estate bequeathed to her, and of that bequeathed from her, by her husband’s will. But taking all the particular circumstances of the case together, I am of opinion that the decree be affirmed, as to this particular point. But I think the Chancellor ought to have allowed interest upon the money paid to prevent the sale of the negroes by Hunt’s executor. In that respect I think the decree erroneous; but I concur in the decree which has been agreed to in conference.

JUDGE ROANE.

If the case of Cull v. Showell, (Ambler, 728,) relied upon by one of the appellant’s counsel, had never been overruled or departed from, he might have had more cause to be “sanguine” upon the strength of it, than he has at present. The ground of decision in that case (which was decided in 1772) has, however, been expressly overruled in the cases of Whistler v. Webster, (in 1794, ) of Wilson v. Townsend, (in 1795) of Blake v. Bun-bury, (in 1792) and perhaps in other cases. In those decisions it is considered as the settled doctrine of a Court of Equity that no man shall disappoint the will under which he claims; and that, therefore, if a man bequeaths to another, property to which he has no title, but which belongs to a third person, to whom he gives by the same will other parts of his estate, such third person must elect and convey his property to the devisee, or he cannot take the property devised to him under the will: that the only question is, did the testator intend (clearly upon the face of the will) the property to go in such a manner? and that the Court will not ask whether he had power to do so : that it is immaterial whether the testator thought he had the right, or, knowing the extent of his authority, under the influence of this principle, intended, by an arbitrary' exertion of power, to exceed it: that the legatee, in such case, cannot dispute the ownership of the property bequeathed to the other: and that the legatee can only take the property on the terms on which it was given.

*These doctrines are full up to, and even go beyond the case before us: I say go beyond it, because the testator not only considered the negroes in question as his own, having bequeathed them by the terms “my part of the negroes given to my wife by her brother John Hunt,” but also because, although the property in those negroes was not then absolutely vested in him, yet from the unsettled state of the law at that time upon this subject, he might naturally have concluded the law in this respect to be otherwise. It is not equitable that, when property is given to another upon a consideration, the property should be exacted, and yet the consideration withheld.

It is not necessary in this case to inquire into the extent of the rule that a party electing must have a clear knowledge of the situation and amount of the fund elected. In this case the compromise, made with the devisees-over, of the estate derived to the appellant under her husband’s will, not only disabled her from electing the other interests; (she having thereby conveyed the absolute interest in part thereof to such devisees, and herself acquired the absolute interest in the residue;) but was made after so great a lapse of time, that she must have had a clear and undoubted knowledge of the value and actual situation of both the interests.

On the merits, therefore, the case is clear for the appellees. I concur, however, that the decree be corrected so as to allow the appellant interest upon the money paid by her to redeem the negroes in question.

JUDGE FLEMING.

It is admitted by all parties that the testator, William Up-shaw, had no right to, or vested interest in, the negroes bequeathed to the appellees; but that, under the will of John Hunt, the right was in the appellant upon the death of her mother Anne Upshaw. The most material point irj the cause then is, whether the appellant, to whom her husband lent the whole of his estate during her widowhood, should be put to her election, either to take under the will, and relinquish her right to the negroes, or to renounce all claim under the will, and take the negroes bequeathed to the appellees, which she claimed under the will of John Hunt?

The case of Cull and wife v. Showell and others, in Ambler, 727, seems in favour of her not being put to her elec!ion; but later cases, as Whistler v. Webster, and others that have been cited, have overruled that case, with some exceptions, and qualifications ; and it seems now settled, that where the devisee is instructed, and hath a clear knowledge of the amount or value of the estate claimed under the will, the election must be made; but, otherwise, the legatee shall not be put to an election.

In the present case it seems that the appellant must, of necessity, have been so instructed and informed; because the whole of the estate was devised and bequeathed to her, during her widowhood; and she was appointed the executrix of her husband’s will; and that she, after having remained in possession of the estate, more than twenty years, made a contract with the legatees in remainder, whereby she gave up to them a part of the estate, in consideration of their conveying to her an absolute right to the residue: which affords the strongest evidence of her having already made her election with full notice and information of the value of the estate she took under the will of her husband.

But it appears clearly to me that she ought to have been allowed interest on the money she paid to redeem the negroes chargeable with the debts of John Hunt: and that, in the account to be taken of the profits of the slaves that came into her possession on the death of Anne Upshaw, a just and reasonable allowance ought to be made her, for the support and maintenance of the aged, the children, and others that were unprofitable, (if there be any such among them,) and for other incidental expenses which she may have incurred on their account; as I have been taught by experience, that the maintenance of a parcel of negroes, where a considerable proportion of them are breeding women, is rather expensive than profitable.

I am therefore of opinion that the decree is in those respects erroneous, and ought to be reversed.

The opinion of the Court was, “That there was no error in so much of the decree of the Superior Court of Chancery as decides that according to the principles of equity the appellant cannot retain both the slaves bequeathed to her by the will of her brother John Hunt, on the decease of his mother Anne Upshaw, who held the same for her life in right of dower, and the property devised and bequeathed to her by her husband William Upshaw, by whom those slaves at the death of the said Anne Upshaw, were bequeathed to the appellees; and as directs the said slaves, with their progeny, to be delivered to the said appellees, with an account of their service and the profits arising therefrom; and as requires' the appellees to recompense the appellant for the monies paid by her in discharge of the debts of John Hunt, with the payment of which those slaves were chargeable: but that there is error in the said decree in not allowing to the appellant interest upon the monies so paid by her. And this Court is further of opinion that a just and reasonable allowance should be made to the said appellant for the support and maintenance of such of the said slaves as are, or may have been aged, infirm, children, or otherwise expensive or unprofitable to the holder; as also for such taxes, doctor’s bills, and other reasonable expenses paid or incurred by the appellant on account of those slaves, as she shall be able to prove: Therefore it is decreed and ordered, that so much of the said decree as is contrary to the above opinion be reversed and annulled, and that the residue thereof be affirmed,” &c. 
      
       Cases temp. Talbot, 176.
     
      
       Cited 2 Fonb. 325, note 1.
     
      
       2 Ves. i un. 371.
     
      
       Powel, on Devises, 450.
     
      
       Powel, on Devises, 453, who refers to 2 Vern. 14. 617, and 2 Vern. 555.
     
      
       Powel, ib. 454, 458, 459, 463.
     
      
      
         Powel, ib. 465.
     
      
       lWasb. 30.
     
      
       Powel, on Devises. 466.
     
      
       3 Ves. jun. 371, 2 Fonb. 328, note 1.
     
      
       Wake v. Wake, 1 Ves. jun. 385: Newman v. Newman, 1 Bro. Ch. Rep. 187: Boynton v. Boynton, ib. 445; Gibbons v. Gaunt, 4 Ves. jun. 849; Hindes v. Rose. 8 P. Wms. 125: Purcy v. Debouverie, ib. 316, 5 Ves. jun. 484.
     
      
       2 Ves. jun. 370.
     
      
       Ib. 696.
     
      
      4 Bro. Ch. Rep. 25.
     
      
       See Wallace v. Tallaferro, 2 Call, 447.
     
      
       2 Ves. jun. 367.
     