
    *Moorman v. Smoot & Wife & als.
    January Term, 1877,
    Richmond.
    I. There were nine children tenants in common of slaves subject to the life-estate of their mother. One of them, J, by his will gives to 1ns brother K certain lands, plantation utensils, “and all the interest I may have in an undivided dower estate.” J's widow marries T, and T buys the shares of six of the children, one of them IC, and he buys of the husband of N, one of the children, her share; but her husband dies in the lifetime of N, and her mother. K dies, and gives his interest under the will of J to Y. T sells two of the slaves to M, and M afterwards sells them and the increase of one of them for $960. T and his wife have removed from the state. After the death of the life tenant, S, who had not sold her interest in the slaves, files her bill against M, making N and Y defendants, setting out the facts, and claiming her interest in the slaves sold to M — Held:
    1. Co-Tenant — Liability for Sale of Common Property. — M not producing the slaves, he must account for the price at which he sold them, with interest from the death of the life-tenant.
    2. Husband and Wife — Reversionary Interests. — The husband of N having died in the lifetime of the life-tenant, his sale of her interest is invalid, and N is entitled to it.
    3. The bequest of' K to Y vests the interest of J in the slaves in Y.
    
      4, Pleading* — Cvoss-Bills.—It was not necessary that N and Y should file a cross-bill in the cause in order to set up their claims against M.
    Jesse Kennedy, of the county of Amherst, died some time previous to 1806. He left a widow, Susanna, and nine children, two of them boys, Joseph and Jesse, and seven girls. One of these girls, Nancy, married William Kelly, who died in the lifetime of his wife and her mother. Jesse Kennedy left a tract of land and a number of slaves; in which his widow *had her dower and distributable part. She seems to have had an illegitimate son, Nicholas, after the death of Jesse Kennedy; and previous to 1806 she married Thomas Alfred. She lived until the 10th of June 1857.
    By deed dated the 21st of June 1806, Thomas Alfred sold and conveyed to Joseph Kennedy his wife's interest in the land assigned to her -for dower, and four of the slaves she had received; among them was one named Milly. In 1825 Joseph Kennedy-died. By his will he gave to his wife Elizabeth, besides other property for her life, ten slaves by name, which he says are the property of the heirs of his father, Jesse Kennedy, at the death of his mother, Mrs. Alfred. One of these was the woman Milly. And at the death of his wife he gives to his brother Jesse Kennedy certain land, his stock and plantation utensils, “and all the interest which I may have in an undivided dower estate.”
    Jesse Kennedy died in 1826; and by his will he gave to his brother, Nicholas Kennedy, all his interest in the personal estate of his father, “together with the interest conveyed to me by will from my ‘brother, Joseph Kennedy.”
    Some time previous to June 1828, Elizabeth, the widow of Joseph Kennedy, married Christopher Timberlake. And after his marriage he seems to have received possession of the said dower slaves, and to have purchased the interest of' six of the children of Jesse Kennedy the elder; and it seems Jesse, Jr., was one of these six. He also purchased from William Kelly, the husband of Nancy, her interest. And afterwards he sold these slaves to different persons, and removed with his family to Ohio, and has not been heard of for many years. Of these sales, he made one in October 1834, by which,' for the sum of $500, *he conveyed to Charles H. Moorman a negro girl named Elizabeth, aged about nine years, and a boy named Robert, aged about seven years: these were children of Milly. These slaves Moorman held until 1847, when he sold the girl and her two children to Samuel McDearman for $960.
    Susanna, one of the daughters of Jesse Kennedy the elder, married in 1816, Wiatt P. Smoot, and they removed first to Tennessee and then to Alabama; where they live at present. In 1859 Smoot and wife filed their bill in the circuit court of Amherst county, which was afterwards removed to the circuit court of Eynchburg, in which they claimed an interest of one-ninth of the dower property aforesaid. They set out the sale of the two slaves by Timberlake to Moorman; and claim that they are entitled to the said slaves, with hires from the death of the life-tenant, or the purchase money if he has sold them. Moorman, Nancy Kelly, Nicholas Kennedy and others were made defendants.
    Nancy Kelly answered, insisting that her husband, William Kelly, having died in the lifetime of the _ life-tenant, she was entitled to have her ninth of the dower propel ty, notwithstanding Kelly’s sale of it to Timberlake. Moorman answered, insisting he was a bona fide purchaser without any grounds to suspect that he was not buying a good title.
    When the cause came on to be heard the court held, that Moorman should account for the woman Elizabeth and her children at the price-for which he sold them, with interest from the death of the life-tenant, Mrs. Alfred, and for the hires of Robert from that time until he was emancipated by the results of the war in 1865, except for the time he was in the possession of the plaintiffs’ counsel in 1859. And an account fhaviug been taken, commencing the interest and hires from the 1st of January 1858, the court on the 13th of June 1872 made a decree against Moorman in favor of the plaintiffs and Nancy Kelly and Nicholas Kennedy each for a ninth of the amount so ascertained to be due from the defendant Moorman. And thereupon Moorman applied to a judge of this court for an appeal; which was allowed.
    
      Mosby & Brown and Ould & Carrington, for the appellant.
    
      I. H. Lewis, for the appellees.
    
      
      Liability of Life Tenant — Emancipation of Slaves. — Pettyjohn v. Woodroof, 77 Va. 516 and Brown v. Lambert, 33 Gratt. 256, cite the principal case for the proposition that the remaindermen are entitled to recover the value of slaves notwithstanding their subsequent emancipation where the life tenant had converted them to his own use.
    
    
      
      Pleadiitg — Cross-Bills.—The holding of the principal case in regard to filing cross-bills is cited with approval in Atwood v. R. R. Co., 85 Va. 973, citing also French v. Townes, 10 Gratt. 513; Faulkner v. Davis, 18 Gratt. 652. For general rule, see Ragland v. Broadnax, 29 Gratt, 401.
    
   Staples, J.,

delivered the opinion of the court.

The court is of opinion that the appellant and the appellees were tenants in common of the slaves in controversy, the appellant being the owner of six interests in remainder. and the appellees of three interests in remainder, and the appellant being also entitled to an estate for the life of Mrs. Susanna Alfred in the same slaves. The sale of the woman Elizabeth, and her two children by the appellant, although intended to pass the fee, could only operate to confer such title as he himself had. It may be that the appellant made said sale in good faith, supposing his title to all the interests in remainder unexceptionable; but the mistake into which he was led by his vendor could not impair the rights of his co-defendants, or in any manner affect his obligations to them. By the sale the property was placed beyond the reach of the appellees. They could not obtain possession of it at the death of the life-tenant, nor pursue their remedies against the person in possession; nor could the -’appellant produce the slaves for partition, or for sale and division of the proceeds among those entitled. Under the circumstances his sale must be considered as a conversion of the property, with all the liabilities consequent upon such an act. The appellant was therefore liable to the appellees for the value of the three interests to which they were entitled in remainder.

The court is further of opinion that the circuit court did not err in holding that the appellant, under all the circumstances, shall account for three-ninths of the purchase money received by him under the sale of said slaves. At the date of said sale the woman, Elizabeth, ivas about twenty-two years of age, and the mother of two infant children; the three were sold for nine hundred and sixty dollars. At the death of the life-tenant in 1857, ten years afterwards, the presumption is, that while the mother did not diminish, the children must have increased in valup. There is nothing in the record to rebut this presumption. If, as claimed by the appellant, he is only accountable for the value of the slaves at the death of the life-tenant, it was incumbent upon him to show such value by satisfactory evidence, or to produce the slaves for the benefit of those in remainder. The evidence tends to show that they were still alive in 1857, at the death of Mrs. Alfred, but it does not show in whose possession they were at that lime, or at the time of the institution or during the pendency of this suit in the court below; nor does it appear that the appellant made any special effort to obtain information upon these points. Without undertaking therefore now to decide whether in a case such as this the party settling is liable only for the value at the death of the life-tenant, where that value appears, it is sufficient to say that in the absence *of proof upon that point the court is bound to adopt the price for which the slaves were sold as the sum with which the appellant is to be charged in his account with his co-tenants. Kean v. Welch, 1 Gratt. 403; Cross’ curatrix v. Cross’ legatees, 4 Gratt. 257.

The court is further of opinion the circuit court did not err in entering a decree against the appellant in favor of Nancy Kelly for one-ninth of the interest in remainder in said slaves, and the proceeds of their hires. It appears that William Kelly, the husband of Nancy Kelly, sold to C. J. Timbe.rlake the wife’s interest in remainder, and died leaving the wife and the life-tenant surviving him.

The rule is well settled, that where a wife has a vested remainder in personal estate, expectant on the death of a life-tenant, and both the wife and the tenant for life outlive the husband, the wife is entitled by right of ownership to the interest in remainder, not only against the representatives and general assignees of the husband, but even against his particular assignees for valuable consideration. Henry v. Graves, 16 Gratt. 244.

The court is further of opinion, that the second clause in the will of Joseph Kennedy is not justly liable to the objection suggested by appellant’s counsel, of being too indefinite to confer upon his brother, Jesse Kennedy, the testator’s remainder in the property, which is the subject of controversy. That clause is as follows: “At the death of my wife I give and- bequeath unto my brother, Jesse Kennedy, all my stock and plantation utensils, and_ all the interests which I may have in an undivided dower estate, both real and personal.”

This language must be read in connection with the clause just preceding, in which the testator fully explains *what he means by “an undivided dower estate;” and manifestly shows that he refers to the land and slaves allotted to his mother for her dower in the estate of Jesse Kennedy, the father. The interest thus bequeathed to Jesse Kennedy, the brother of the testator, was by him bequeathed to Nicholas Kennedy, and was not included in the sale made by Jesse Kennedy to C. J. Timberlake. At all events there is nothing in the record to show that it was so included. Under the will of Joseph Kennedy, as has been seen, Jesse Kennedy was entitled to the legacy at the death of Elizabeth Kennedy, the ' widow of the testator. The evidence’does not very clearly show her death. It appears, however, that she was a married woman as-far back as 1834, and probably had been for a considerable period; that she after-wards married C. J. Timberlake, and that many years ago she, with her husband, removed to the state of Ohio, and whether she has been since heard from does not appear.

í'his precise objection does not seem to have been raised in the lower court, probably from an understanding among all parties that Mrs. 'Timberlake was no longer living, and the fact could be easily established if the proof was called for. If the appellant desired or intended to raise this issue, the nature and character of the controversy required he should do so in the court below. It is too late to raise the question for the first time in this court.

vThe court is further of opinion, that a cross-bill was not necessary to a proper determination of the questions arising in connection with the claims asserted by Mrs. Nancy Kelly and Nicholas Kennedy, already adverted to. They are parties defendant to the suit; their interests are particularly set forth in the bill; they were tenants in common with the appellant and *the plaintiffs, and they were simply a-sking their distributive shares derived by descent and bequest from a common ancestor. Their interests were involved in the issue between the plaintiffs and the appellant, with the exception of a single question of law arising upon the construction of a will in one case, and the operation and effect of a sale in the other. Under such circumstances a cross-bill would have accomplished no good, and the failure to file it has not been productive of injury or inconvenience to either party. The appellant might have raised, and with the same effect, before the commissioner any and every question which could have been presented in an answer to a cross-bill.

The court is further of opinion, that if it could be properly held that 'appellee’s primary remedy is against C. J. Timberlake, it appears that he left this state many years ago, and if alive is still a resident of a distant state. It is not shown, it is not even suggested, that he has or had any estate subject to the jurisdiction of the courts of the commonwealth. It was therefore unnecessary to make him a party to the suit, or to ask any decree against him before proceeding against the appellant.

The court is therefore of opinion, for the reasons stated, there is no error in the decree of the circuit court, and that the same must be affirmed.

Decree affirmed. 
      Trnstees — Breach of Trust — Liability.—In Loving v. Ashlin, 76 Va. 911, the court quotes 2 Story F)q. sec. 261 as follows: "There is no rule of equity applicable to trusts which is more uniformly acted upon by the courts than that one who assumes to act in relation to trust property without just authority, however bona fide may be his conduct, shall be held responsible both for the capital and the income to the same extent as if he were a de jure trustee,” citing the principal case and Cross v. Cross, 4 Gratt. 257; Tabb v. Cabell, 17 Gratt. 160. See also Brown v. Lambert, 33 Gratt. 256 and note, citing the principal case; Bartlett v. Patton, 33 W. Va. 80.
     