
    *Branch’s Administratrix, and Others, v. Booker’s Administrator.
    
    Monday, March 9th. 1812.
    1. Chancery Practice — Division oí Testator’s Estate— Parties. -Where the division of a testator’s estate in pursuance of his will is not to be made at on o and the same time, but at the several periods when any one or more of his children shall separate from the family, it is not necessary that all the legatees be made parties to each suit in Chancery for a division; but only those entitled to participate in the division then in question.
    2. Will - Construction — “Child’s Share.” — Quaere, if a testator direct that each of his children upon separating from the family, shall have a ‘child’s share’ of the personal property, is it to be such part as he or she would have been entitled to in case of the father’s intestacy? or is the whole to he divided among the children excluding: the widow? or among: the children and the widow, in such manner as to grive her a child's part?§
    3. Same — Construction—“Separation from Family” — What Constitutes. — In such case the marriage of a daughter, (with the widow’s consent, if such consent he requisite under the will,) is, ipso facto, such a separation from the family, as entitles her husband to demand her share of the estate; and this, although she continue, until her death, to reside with the widow, and no demand of an allotment of her share he made, during her life. He is also entitled to the profits received upon such share, from the day of the marriage, or a reasonable time thereafter: with interest thereupon; and is, in like manner, chargeable with her proportion of the expense of maintaining such slaves as produce no profit.
    William Branch, sen., of the county of Chesterfield, by his last will and testament, having devised to his son William, a tract of land, and certain slaves and stock, then in his, the said William’s, possession, “barring all claims in future against the testator’s estate,” and to his sons Joseph, Henry, Thomas, and Francis, and his daughters Judith and Martha, certain lands; lastly, “to his beloved wife Judith, he gave the land on which he resided, her natural life, as, also, all other his lands and other property, so long as the family should live entire with her, but when any one of his children should wish to separate from the family, and should obtain her consent, then they should have a right to demand the land above devised them, as also a child’s share of the slaves and personal property, which child’s lot should be ascertained by his neighbours, Thomas Watkins and George Bvans, or the survivor, should either of them die. It was his wish, that there be no appraisement or inventory, and that his wife Judith have power to act, as to the personal property, as he should himself, were he in being, in all respects.”
    "’George Rvans and Thomas Watkins were called on, by Mrs. Branch to allot to three of his ■ children, to wit, Henry, Joseph, and Judith, who had married Thomas Biggon, their proportions of the slaves left by her deceased husband. This they proceeded to do, on the 3d of January, 1799. The negroes were valued by them to 14101. which, when divided into six equal parts, gave to each 2351.
    Martha, the other daughter of the testator, having intermarried with James Booker, and afterwards departed this life, the said James qualified as administrator of his deceased wife, and, in that character, filed his bill, in the Superior Court of Chancery for the Richmond District, against Judith Branch, administratrix, with the will annexed, of the said William Branch, deceased, and Thomas Branch and Henry Branch, defendants; charging that he had married the said Martha, with the consent of the defendant, Judith, and thereby became entitled, in right of his wife, to the said “child’s part,” as the marriage of said Martha was, itself, a separation of her from the family: that, some time after the marriage, he proposed moving his residence from the house of the said Judith, which was assented to by her, and she appeared quite willing that he should have his wife’s proportion of the personal estate of William Branch allotted to him; but before this took place, his wife was taken sick and died, and then Mrs. Branch refused to let him have any part of said estate, of which she, together with Thomas Branch and Henry Branch, (who were the only defendants to the bill,) held possession.
    The bill further stated, that Francis Branch, son of the testator, died, an infant, under the age of 18 years, and without issue ; that the division and allotment, by Svans and Watkins, was made after the death of the said Francis, when the testator had but five children, who were alive, or had left issue;” and of course the mode of division "resorted to by those gentlemen was perfectly correct, during the life of the defendant Judith." The plaintiff prayed the court to decree him such proportion of the personal estate of the testator ‘ ‘as he was entitled to by virtue of the premises.”
    The defendant, Judith Branch, in her answer, denied having consented to her daughter’s marriage with the plaintiff, previously thereto; “further than this; that, when her consent was asked, before it took place, she positively refused it, and endeavoured to persuade both the parties to think no more of it, and to break it off; but, they having persisted in it, she told them, that if such was their determination, they ought not to run away, but be married at her house. ” She also alleged, “that the said Martha never separated herself from the family of the defendant; they having continued to live in the house of this defendant, from the time of the said marriage, for eight or nine months, until her death; that they never proposed to separate from her family, nor ever demanded any share of the said testator’s estate upon the idea of such separation.”
    The defendant, Henry Branch, by his answer, denied his having, possession of any of the estate, “for which the plaintiff is now suing.” Thomas Branch declared that he continued to live with his mother, and had never received his share.
    Many depositions were taken; the result of which was, that Mrs. Branch appeared, for some time, to have objections to the marriage, but, at length consented, and gave the parties a wedding.
    It was also proved, by a witness, that, in the fall of 1802, after the marriage had taken place, the deponent was at the house of Mrs. Branch, and heard her express a wish that the plaintiff would let his ne-groes, that he got by his wife, remain on the plantation she lived on another *year; that the estate was somewhat embarrassed, from which another crop would probably relieve them.” But no demand, by the plaintiff, or his wife, to have her share allotted, was proved.
    The cause was heard June 19th, 1809; whereupon the chancellor decreed, that ■“Thomas Watkins and George Evans do, forthwith, proceed to allot to the plaintiff, in right of his late wife, one sixth part of the slaves and other personal estate of the testator, with the profits thereof, since the plaintiff’s marriage; and make report, &c. for a final decree.”
    In obedience to this decree, the commissioners reported that the twelve slaves, formerly left, (when they made the first allotment,) in the possession of the admin-istratrix, had increased to twenty-five, which they now valued at 9001. ; — of which they allotted to the plaintiff one third ; that (three sixth of the cattle having before been allotted to Henry, Joseph and Judith, children of the testator,) they now gave the plaintiff one third of the cattle remaining on hand; that the hogs, together with the furniture and plantation utensils, not having been divided before, they allotted to the plaintiff one sixth part thereof; — that of the horses, the plaintiff admitted he had already received his full proportion ; — and there remained none of the sheep to allot to him. As to the profits of the slaves, and other personal estate of the testator, since the marriage of the plaintiff, they reported that, from the first of January, 1803, which was the commencement of the year succeeding the marriage, (the same having taken place in August, 1802,) up to the first of January, 1810, the said profits amounted, with interest thereon, to 2921. lSs. They credited the plaintiff, in account with the defendant, Judith, by one third of that sum, being 971. 11s. *8d.; and by his share of the furniture and plantation utensils, (left in her hands by consent of parties, ) amounting to 81. 16s. 8d. They stated the expense attending the raising of negro children, including every charge for food, clothing, fees to physicians and midwives, with the interest thereon, 3101. Is. Id. They debited the plaintiff with one third of that sum, viz. 1031. 7s. 4d. To which they added, “excess in his allotment of slaves,” 51. 0s. Od.
    And amount of sundry sums of money paid by the defendant for the benefit of the plaintiff, with the interest thereon, (which was admitted by the plaintiff, and requested by the parties to be made a part of the report) 921. 11s. 2^d. 2001. 18s. 6%d.
    
    So that, after deducting the aggregate of the credits above mentioned, viz. 1061. 8s. 4d.
    A cash balance appeared due from the plaintiff to the defendant amounting to 941. 10s. 2j^d. Chancellor Taylor approved and confirmed this report, “to which there was no exception,” and decreed, that upon payment of the sum “appearing, thereon, to be due, by the plaintiff to the defendant Judith, or, if she will not receive it, then, upon the payment thereof, into the Bank of Virginia, to the credit of the clerk of this court, for her use, that she forthwith deliver to the plaintiff that portion of the estate of her testator allotted to him by the said report.” And he further decreed, ‘ ‘that she pay the costs of suit out of the estate of her testator, if, &c. — if not, out of her own estate.”
    From this decree the defendants appealed.
    Wickham, for the appellants,
    in the first place, contended, that, under the will, the plaintiff, James Booker, was not entitled to any part of the estate; at least during the life of the widow; since his wife never separated from the family. There is no other devise of the slaves, but in the *clause in which the widow is authorized to hold possession of all the property, until the event of the removal of a child with her consent. As that event, with respect to Martha, the plaintiff’s wife, never happened, it may be said that her share of the slaves sunk into the residuum. But, if that be the case, it cannot be claimed during the life of the widow.
    2. If the plaintiff be entitled to his wife’s share immediately, he can claim (under the words “a child’s part”) only one sixth part of two thirds of the whole.
    Any other construction would, when the last child goes away, deprive the widow of the whole; which could not be the testator’s intention. He certainly meant, by a child’s part, such part as each child would be entitled to in case of intestacy; which always leaves the widow’s third undisturbed.
    3. All the children should have been made parties to the suit. This may be supposed unnecessary, because some of them have received their shares: but that may be a point in controversy, and is not to be taken for granted. In Richardson’s Executor and Hunt,  it appeared that some of the children had received their shares; yet it was determined, that they ought to have been parties, for the purpose of ascertaining whether they agreed to that division; and that they might be bound by the decree.
    4. Profits, in this case, ought not to be allowed; nor,
    5. Interest on profits.
    Williams, contra.
    It seems to me that each daughter was entitled, on her marriage, to her share. The object the testator had in view was, that all his children should live together; that his widow should be the head of the family, and manage every thing for their joint benefit. Whenever, therefore, the widow became no longer bound *for a daughter’s support the contingency contemplated by the testator arrived.
    2. The intention of the testator was to give his children his slaves and other personal estate, equally among them, but to postpone the separate enjoyment until certain events. Though the wife is entitled to a third part, in case of intestacy, yet the husband, by a will, may deprive her of it; in which case, her only remedy is to declare her intention not to abide by the will.
    3. As to parties. The division here was not to take place at once, but at different times; and the testator appointed the two men who were to allot to each child his or her share. The testimony proves that the shares of three of them have been allotted; that they have long acquiesced, and have no interest in the subject now in controversy. There is no reason, then, for making them parties: if they were, they would recover costs.
    4. Instead of any profits arising to the plaintiff from the decree, he is made to pay the widow for raising young negroes. If the profits be not allowed, neither ought the charge for raising negroes to be made, which amounts to more than the profits; at least, one ought to stand against the other.
    5. The same observation applies to the interest on the profits. If both, added together, do not exceed the sum charged for maintaining young negroes, the court ought not to disturb the decree on that account. But according to the decision in Quarles’ Executor v. Quarles and others,  Mrs. Booker, from the time of her marriage, when her right to maintenance, out of the estate, generally, ceased, was entitled to the profit, received by the admin-istratrix, on the share which should have been allotted to her, and also to interest on the profits from the time of the receipt thereof by the administratrix.
    Wickham, in reply.
    I admit the will is to be followed; but I contend that the plaintiff and his wife were not entitled to profits from the time of the marriage, nor from *the first of January thereafter, but from a demand made; and no demand is proved.
    2. A “child’s part” has a legal technical meaning; signifying such proportion as each child is entitled to in case of intestacy. — Otherwise, it would be altogether uncertain. '
    3. The circumstance, that the children were to take at different times, does not prevent its being necessary to make them all parties. There seems to be s,ome plausibility in Mr. Williams’s argument; but it has been repeatedly overruled. Richardson’s Executor v. Hunt, is exactly like this case, or rather stronger. The failing to make the objection in the answer makes no difference,  The commissioners swearing, that the first allotment was a fair one, does not bind the parties who are not before the Court. They might file a bill to set it aside, and if it should appear not to have been fair, they would be compensated out of the part now in controversy.
    4 and 5. It is a most unreasonable doctrine that charges for maintenance “of ne-groes, where no profit could be received from them ought not to be allowed. The circumstance then, that the expense of maintaining the young negroes exceeds the profits of all the slaves collectively, with interest, does not weaken my objections to the allowance of such profits and interest.
    
      
      For monographic note on Bigamy, see end ol case.
    
    
      
      The principal case was cited with approval in Buck v. Pennybacker, 4 Leigh 8.
    
    
      
      Note. There appear to have been six living, after the death of Francis, if William were included in the number; but it seems, that he was not counted, having received his full share in the lifetime of the testator. — Note in Original Edition.
    
    
      
      Note. The dividing of the slaves. &c. into six parts, when there were only five children, seems to have been for the purpose of leaving one sixth part, to the widow; under the supposition that she was entitled to a child’s part for life. — Note in Original Edition.
    
    
      
      Note.~This was complying- with the spirit of the -decree, as nearly as practicable; by giving the plaintiff one third of the slaves remaining after the first allotment, instead of one sixth of the whole, there being only three persons (including the widow) among whom the division, in this instance, was made. — Note in Original Edition.
    
    
      
      Note. This seems a mistake. There being only five children, among whom the division was made, by giving them each a sixth part, the widow would retain a sixth part. — Note in Original Edition.
    
    
      
       2 Munford, 148.
    
    
      
       2Munford, 321.
    
    
      
       Sheppard’s executor v. Starke and wife, ante.
    
   Friday, March 20th, the Judges pronounced their opinions;

JUDGE BROOKE.

The general rule, that all persons interested in the division of the same subject ought to be parties in a suit brought by one or more of them, does not apply to the present case: the division here could not be made at one and the same time, in pursuance of the will of the testator, but at the several periods when any one or more of his children should separate from the family with the' consent of the mother; nor will I, after a division has been made, as to one ■ or more of the children, without complaint on their part, presume that they *are dissatisfied, or have received an unequal share. A contrary rule, in the present case, would tend to harass the persons interested by a multiplicity of suits; inasmuch as, under its operation, they would all be made parties whenever any one of the' children separated from the family, and claimed its share under the will. For these reasons, and because all parties appear to have acquiesced in, and consented to, a division of the estate into six equal parts, according to the number of children, (without deciding on the effect of the words, ‘‘child’s part,” in the will, which, probably, would have produced a different rule of division from ■ the one adopted by the parties,) I am of opinion the decree of the chancellor is correct, and ought to be affirmed.

JUDGES COAETER and ROANE were of the same opinion.

Decree unanimously affirmed.

BlGAriY.

I.Statutory Provisions.

II.Elements of the Offence.

1. Prior Valid Marriage.

2. Subsequent Marriage.

III.Evidence.

1. To Prove Prior Marriage.

a. Admissions of Accused.

b. Cohabitation.

c. Testimony of witness Present at Marriage.

d. Certificate of Celebrant.

e. Decree in Divorce Proceedings.

f. Evidence of License without Production of

License Itself.

2. Evidence to Show Invalidity of Prior Marriage.

3. Sufficiency of Evidence.

I. STATUTORY PROVISIONS.

The Virginia and west Virginia statutes regarding the crime of bigamy are identical, and provide as follows: “If any person, being married, shall, during the life of the former husband or wife, marry another person in this state, or if the marriage with such other person take place out of the state, shall thereafter cohabit with such other person in this state, he shall be confined in the penitentiary not less that three nor more than eight years.” Va. Code, § 3781; W. Va. Code, ch. 149, § 1. By a subsegment section it is provided that: “The preceding section shall not extend to a person whose former husband or wife shall have been continually absent from such person for seven years next before marriage of such person to another, and shall not have been known by such person to be living within that time; nor to a person who shall, at the time of the subsequent marriage, have been divorced from the bond of the former marriage, or whose former marriage shall at that time have been declared void by the sentence of a court of competent jurisdiction.” Va. Code, § 3782; W. Va. Code, ch. 149, § 2.

H. ELEMENTS OF OFFENCE.

1. PRIOR VALID MARRIAGE. — In order for a second marriage to constitute the crime of bigamy it is, of course, essential that the first marriage should have been a valid marriage, and that the marital relation should have been subsisting between the parties thereto at the time the defendant -entered into the second marriage. Oneale v. Com., 17 Gratt. 582. Jf the defendant was already lawfully married at the time the first marriage alleged in the indictment took place, such marriage is a nullity, and the second marriage laid in the indictment cannot constitute the offence of bigamy. State v. Goodrich. 14 W. Va, 834.

2. SUBSEQUENT MARRIAGE. — The subsequent marriage of the accused is of course another essential element of the crime. State v. Goodrich, 14 W. Va. 834. See also, the statutes, ante, this note, '‘Statutory Provisions.”

III. EVIDENCE.

1. TO PROVE PRIOR MARRIAGE.

a. Admissions of Aoouskd. — On a trialfor bigamy, the admission of the prisoner and his acts are competent evidence to prove the prior marriage, without producing the record, or a witness who was present at the marriage. Oneale v. Com., 17 Gratt. 582; State v. Goodrich, 14 W. Va. 834; Bird v. Com., 21 Gratt. 800; Warner v. Com., 2 Va. Cas. 95.

b. Cohabitation.'--It has been held that in a prosecution for bigamy, defendant’s cohabitation with the woman as his wife is proper evidence of the first marriage. Warner v. Com., 2 Va. Cas. 95; Bird v. State, 21 Gratt. 800.

C. TESTIMONY OF WITNESS PRESENT AT MARRIAGE. —-Although the testimony of a witness present at the marriage may not be as conclusive or satisfactory as the confession of the party, there is no solid reason for rejecting it as incompetent. There is no technical rule forbidding the reception of such evidence. When a witness testifies to a marriage in a foreign state, solemnized in the manner usual and customary in such state, by a person duly authorized to celebrate the rites of marriage, and the -parties afterwards lived together as man and wile, this is as satisfactory evidence of a valid marriage as could be expected or desired, and in such case it Is not necessary to prove the laws of such state, or to offer further evidence of a compliance with its provisions. Bird v. Com.. 21 Gratt. 800. In another case, it appeared that the first marriage took place in Pennsylvania, where a marriage could be solemnized by the parties taking each other for husband and wile before twelve witnesses, one of whom was a justice of the peace, a certificate of the marriage under the hands of the parties and the twelve witnesses being brought to the register of the county, and recorded. It was held, tnat the parol testimony of one of the witnesses who was present at the marriage was sufficient to establish that one of the number was a justice of the peace, and the fact of marriage. Warner v. Com., 2 Va. Cas. 95.

d. Certificate of Celebrant. — The certificate of the party who performed the ceremony at the first marriage is admissible, in connection with other evidence, to show the prior marriage, even though it is not stated in the certificate that the celebrant was a person authorized by law to perform the ceremony. Moore v. Com., 9 Leigh 639.

e. Decree in Divorce proceedings. — Where a decree of divorce is introduced merely for the purpose of showing that up to the time of the decree the parties to the case were husband and wife, it is unnecessary to introduce other parts of the record in such divorce proceeding. State v. Goodrich, 14 W. Va. 834.

f. Evidence of License without Production of License Itself. — On a trial for bigamy, evidence may be given of the prisoner’s marriage under a license purporting to have been issued by the clerk of the proper court, and of the fact that such a license was issued to the prisoner, without producing the license itself, though it be within the power of the commonwealth. Moore v. Com., 9 Leigh 639.

2. EVIDENCE TO SHOW INVALIDITY OF PR LOR MARRIAGE — On a trial for bigamy, where the defendant claims that the previous marriage on which the charge is based was invalid because at the time of such previous marriage he had a wife living, evidence is admissible to show that he had a wife living a year before such previous marriage, as from such evidence there would arise a presumption that she was living at the time of the previous marriage charged. State v. Goodrich, 14 W. Va. 834.

3. SUFFICIENCY OF EVIDENCE — A verdict against the defendant will not be set aside on the ground that it is not warranted by the evidence, where the prior marriage is proved by the celebrant and the second marriage by the admission of the accused. State v. Goodrich, 14 W. Va. 834; Bird v. State, 21 Gratt. 800. 
      
      Note. The last of these modes of division was adopted in this case, and sanctioned by this court, on the ground of acquiescence and consent of parties : no exception to the report of the commissioners having been taken in the court below; and a previous division, on the same principle, having been made without objection by any party interested. — Note in Original Edition.
     