
    *Taylor & als. v. Yarbrough & Wife.
    (Absent. Albeit, P.)
    January Term, 1856,
    Richmond.
    1. Gift to Wife — Slaves—Case at Bar. T lends to his d aughter D.ainarried woman, three negro women during her life, and they go into the possession of the husband; and by deed he gives her the future increase of the three women. D survives her husband and keeps possession of the three women as belonging to her, and whilst so in h er possession they have a number of children. Held:
    1. Same — Same -Interest of Husband. — The women not haying been expressed to be given for the separate use of D and not haying been conveyed to a trustee, they were the property of the husband for the life of the wife.
    2. Same — Same—Future Increase. —The gift of the future increase of the women was avalid gift.
    3. Same — Same—Same.—The wife having survived her hushand, the increase of the three women born after the death of the husband belong to the wife.
    2. Res Judicata. — A bill in equity haying been dismissed generally without a reservation of any right of the plaintiff to sue thereafter, is conclusive between the parties and those claiming under them upon all the issues made up in the cause.
    By deed bearing date the 17th of July 1823, Robert Taylor, for divers good causes and considerations, but more especially for and in consideration of natural love and affection, conveyed to his daughter Patty Deshazor four certain young negroes named Daphney, Cassandra, Wiley and Armstead, children of Nelly, and Rachel and Jenny, together with all the future increase of the said three women from and after the date of the deed. And the deed recites that he had lent the three women Nelly, Rachel and Jenny to Mrs. Deshazor for her life. *At the time of the execution of this deed John Deshazor, the husband of Mrs. Patty Deshazor, was alive, and the slaves went into his possession, and so continued until his death in March 1825.
    In November 1825 a suit was instituted in the County court of Powhatan by Mrs. Deshazor against George Taylor as the administrator of John Deshazor deceased and Ann Elizabeth an infant daughter by a former marriage, and the only child of John Deshazor, for a settlement of the administration account and a distribution of the estate. At the same term the administrator and guardian ad litem filed their answers, and there was a decree appointing commissioners to settle the account, and divide the slaves and other personal estate, the one-third to the widow and the other two-thirds to the daughter; the widow’s third of the slaves for her life.
    These commissioners reported their division of the slaves, which omitted all mention of the three women given to Mrs. Deshazor for life; and the cause coming on to be finally heard on the 17th of May 1827 the report was confirmed, and the widow and daughter were each decreed to hold the slaves allotted to them respectiveljq the first for life and the latter in fee.
    Some time after this decree, but whilst she was still an infant, Ann Elizabeth Deshazor married William W. Yarbrough ; and they in Eebruary 1843 filed their bill in the Circuit court of Powhatan county against George Taylor as administrator of John Deshazor and Patty Deshazor, in which they set out the deed of Robert Taylor, the fact that the seven negroes came into the possession of John Deshazor, and his death leaving a widow and the female plaintiff his only child then an infant. They state that soon thereafter George Taylor qualified as administrator, and made in the fall of the same year 1825, a partial division of the said slaves as the property of his intestate, giving *to the widow one-third of the four young negroes during her lile, and the remaining two-thirds thereof to the female plaintiff, and leaving undivided and in the possession of the widow, the three women aforesaid, where they and their numerous increase born since the date of the deed, had ever since remained, except Nelly who was dead.
    They claimed that John Deshazor became absolutely entitled in his lifetime and so continued until his death, to all the said seven slaves, and their increase born after the date of the deed, the three women - for life of his wife, but their increase absolutely. That at his death the same property passed to the female plaintiff subject to the widow’s third for life, and ought to have been so held and distributed by the administrator. They state that the increase of the slaves has been considerable since the death of John Deshazor; and that they are advised they are entitled to have a distribution in manner aforesaid. And they ask for such a distribution, and an account of profits.
    George Taylor, the administrator of Deshazor, answered the bill, referring to the decree in the County court of Powhatan, and relying upon it as a bar to the claim of the complainants. He said that under that decree the property was delivered to the parties. That it was probable the County court erred in its decision upon the right of John Deshazor’-s estate to the negro women Nelly, Rachel and Jenny; and if so, he had no objection to the correction of the decree, if the plaintiffs are not barred by the length of time during which Mrs. Deshazor has held the said negroes adversely. But he insists that the increase of the women born since the death of John Deshazor are no part of his estate, but survived to Mrs. Deshazor. He gives the names of the children born since John Deshazor’s death.
    Mrs. Deshazor also answered, taking the same *grounds; and insisting, that if she is to be deprived of the slaves, she should be allowed for raising them. She also relied upon the statute of limitations.
    This cause came on to be finally heard on the 10th of November 1845, when there was a decree in general terms, dismissing the bill with costs. And from this decree the plaintiffs obtained “an appeal, which was afterwards dismissed for their failure to perfect the appeal in the time prescribed by law. See 7 Gratt. 374.
    In April 1851 the same plaintiffs instituted this suit in the Circuit court of Powhatan county. Tliey again set out the facts as to the deed of Robert Taylor, the death of Deshazor, and the partial division of the slaves between Mrs. Deshazor and the female plaintiff, and the leaving the three women in the hands of Mrs. Deshazor. They insist that John Deshazor was entitled to the three women for the life of his wife, and to their increase born during that time absolutely. They say that Mrs. Deshazor was entitled to one-third of them for her life, and the complainants were entitled to the other two-thirds, with the reversion in the third to which the widow was entitled for life. That it is probable they have lost their right to the two-thirds which would have been allotted to them in the first instance by the lapse of time; but that as to the other third thej' had only an interest in remainder which had lately become vested by the death of Mrs. Deshazor. That they could not sue for that third during the lifetime of Mrs. Deshazor, and therefore could not be barred by the lapse of time. And making the administrator of John Deshazor and the executor and legatees of Mrs. Deshazor parties defendants, they asked for a decree in their favor for one-third of the increase0 of the said three women between the date of the deed and the death of Mrs. Deshazor.
    *A11 the defendants answered at great length. They relied on the decrees in the suits in the County and Circuit courts hereinbefore mentioned as a bar to the claim of the complainants. They denied that Mrs. Deshazor held the one-third of the increase of said three women as a part of her dower slaves; and insisted that she held all of said slaves, claiming them as her own, and that she had so held and claimed them from the time of the division of the slaves in 1825 until her death in 1850. They said that at that division the right of Mrs. Deshazor to the three women was acquiesced in before the commissioners by the guardian of the female plaintiff: And they relied on the statute of limitations in bar of the plaintiffs’ claim.
    The cause came on to be heard on the 8th day of Pebruary 1854, when the court held that under the deed of Robert Taylor to Mrs. Deshazor, her husband John Deshazor took an estate for her life in the three women, and that their increase born during that period constituted a part of his estate; and that the plaintiffs were not barred by either of the before mentioned suits, of their recovery of the third thereof to which Mrs. Deshazor was entitled as for her dower or thirds in her husband’s estate. And a decree was made against the legatees of Mrs. Deshazor who had received the slaves under her will, accordingly. Whereupon they applied to this court for an appeal, which was allowed.
    Patton, for the appellants, insisted:
    1st. That the deed of Robert Taylor vested an estate in Mrs. Deshazor for her separate use; and therefore. that her husband took no interest in the slaves.
    2d. That the plaintiffs were barred by the decree in the former suit. That Mrs. Deshazor held and claimed all the slaves as her own, and that she set up this title *in that suit. That the decree in that suit passed upon her title and concluded the question.
    Dance, for the appellees, insisted:
    1st. That the deed of Taylor conveyed the slaves directly to Mrs. Deshazor, -without in any way creating a separate estate in her; and that the slaves vested absolutely in her husband John Deshazor, and on his death passed as a part of his estate.
    2d. That these slaves were not divided by the commissioners in 1825, but went into the possession of Mrs. Deshazor; to one-third of which she was entitled for life. That the question in the former suit was different from the present: There the plaintiffs claimed the two-thirds of the slaves, which claim was defeated by the plea of the statute of limitations; and the decree, therefore, only barred the plaintiffs to the extent that the plea covered the claim. Saunders v. Marshall, 4 Hen. & Munf. 455; Lane v. Harrison, 6 Munf. 573; Northwestern Bank v. Nelson, 1 Gratt. 108. And that the statute could not apply to the one-third of the saves held by the widow as her dower slaves, to which she was entitled for life; and for which the plaintiffs had no title to sue until her death in 1850.
    
      
      Gift to Wife— Slaves— Interest of Husband.— See principal case cited in Hutchinson v. Parkersburg, 25 W. Va. 240.
      See generally, monographic note on “Gifts.”
    
    
      
       Res Judicata. — For the proposition that, a bill in equity having been dismissed generally without a reservation of any right of the plaintiff to sue thereafter, is conclusive between tie parties and those Claiming; under them upon all the issues made up in the cause, the principal case is cited and followed in the following- cases; Carberry v. West Va., etc., R. R. Co., 44 W. Va. 265. 28 S. R. Rep. 695; Watson v. Watson, 45 W. Va. 295, 31 S. E. Rep. 940.
      See. in accord, Van Dorn v. Lewis County Court, 38 W. Va. 267, 18 S. E.Rep. 579.
    
   LEE, J

The interest granted to Mrs. Deshazor in the negroes Nelly, Rachel and Jenny by her father’s deed being for her life only, of course whatever right John Deshazor acquired in them terminated upon her death, and accordingly Rachel and Jenny were surrendered to her father, the other, Nelly, having died some time previously. And as the appellees admit that as to two-thirds of the increase bom after the death of John Deshazor they have lost their right by lapse of time and as those born previously have been heretofore divided, the only subject of controversy here is the undivided third part of the increase of the *three slaves named born after the death of John Deshazor, the whole having been held by Mrs. Deshazor during her life.

That the deed from Taylor conveying to his daughter Mrs. Deshazor the future increase of the three slaves was effectual to pass strch increase cannot be successfully questioned. True, it may be said that as they were not in existence, property in them could not be in the grantor and non det qui non habet. Still being the absolute owner of the reversion of these slaves after the determination of the life estate granted to his daughter, their capabilities of increase .also belonged to him and he might grant such increase just as well as the principal subject. Thus it is said a man may grant the wool of a flock of sheep for years. Noy’s Max. 83. And it is common to grant the future rents and profits of real estate. The grant of the future increase of a female slave would of course confer but a contingent and uncertain interest: but as the children were born they would vest in the donee and the title become complete. It has even been held that the owner of a female slave may give her to one child and her future increase to another. Banks’ adm’r v. Marksberry, 3 Littell’s R. 275. In one case decided in the old General court in 1736, a bequest of the future increase of slaves to others than those to whom the slaves were given, was held to be void. Stone’s adm’r v. Pope, Jeff. R. 43. In a subsequent case decided by Chancellor Wythe in 1791, such a bequest was sustained. Dandridge v. Lyon, Wythe’s R. 123. The last case would I apprehend furnish the rule at this day. That the increase of the slaves during Mrs. Deshazor’s life estate would belong to her father (but for his grant) may be regarded as settled by the authorities. Ellison v. Woody, 6 Munf. 368; Maria v. Surbaugh, 2 Rand. 228.

In the deed to Mrs. Deshazor, no trustee was named *to intercept the marital rights of her husband, nor was the deed even expressed to be for her special or sole or separate use. So that the property in the slaves born during the lifetime of John Deshazor vested in him. But as to those born after his death a different question is presented.

Marriage is said to be an absolute gift to the husband of the goods and personal chattels of which the wife was actually and beneficially possessed in her own right at the time of the marriage and of such others as come to her during the coverture. Coke Litt. 300 a, 351 b; 2 Bac. Abr. “Baron and Reme,” C. 3, p. 21. But of property coming under the description of choses in action, such as debts due the wife, legacies, residuary personal estate, money invested in public securities and the like, marriage is only a qualified gift upon condition that the husband get possession during its continuance ; for if he die before the wife without having gained such possession, she and not his personal representative will be entitled. Coke Litt. 351; Scawen v. Blunt, 7 Ves. R. 294; Langham v. Nenny, 3 Ves. R. 467; Legg v. Legg, 8 Mass. R. 99. In 2 Black. Comm. 433, the doctrine is stated in general terms that “in chattel interests the sole and absolute property vests in the hubsand to be disposed of at his pleasure if he chooses to take possession of them: for unless he reduces them to possession by exercising some act of ownership upon them, no property vests in him but they shall remain to the wife or representatives after the coverture is determined.” This learned and accurate writer makes no discrimination in this regard between personal chattels and choses in action: as to both the reductio in possessionem is required to vest the property in the husband. And Judge Tucker tells us that chattels personal and choses in action “are all upon the same footing, whether they be debts, bonds or '^contracts (which are properly called choses in action) or slaves, horses or other cattle or goods, all of which come under the general denomination of chattels. Ror unless reduced by the husband into possession at some time during the coverture they will survive to the wife if she survives.” 1 Tuck. Comm. Bib. 2, ch. 24, p. 329. Thus if the property of the wife be a bond or a slave or horse of which another person has possession adverse to the wife the husband must sue for and recover the money or property in the wife’s lifetime or the property will not be his. Ibid. The learned commentator would seem to restrict the necessity of a reduction to possession to^the cases in which the possession was held by a third person adversely. But the doctrine is carried further for it is held to apply strictly in cases in which the possession is not adverse to the wife but perfectly consistent with her title, but in which the husband did not, because from the nature of the case, he could not, recover the possession during his life. Thus where a wife is entitled to slaves in remainder or reversion expectant upon a previous life estate and the husband die before the termination of the life estate, the wife him surviving, she, and not the estate of the husband, is entitled to the property; and any disposition of it by his will, will be ineffectual. Upshaw v. Upshaw, 2 Hen. & Munf. 381. So where there was a deed of gift of slaves from a father to his daughter, the use and possession of which was reserved to the father during life: the daughter married and the father afterwards died, and then the husband died without taking actual possession: held that the right to the slaves survived to the wife. Bohn v. Headly, 7 Harris & John. 257. Where the husband survives the wife but both die during the life estate, the right passes to the wife’s administrator. Neale’s adm’r v. Haddock, Cam. & Norw. R. 75.

*As to reversionary interests in personal property of a wife expectant on a previous life estate in another, if the tenant for life and the wife both outlive the husband, it is the settled rule that the wife takes the property by survivorship even although the husband may have assigned it during his life to another. Hornsby v. Lee, 2 Madd. R. 15; Purdew v. Jackson, 1 Russ. R. 1; Honner v. Morton, 3 Russ. R. 65, 3 Cond. Eng. Ch. R. 298; Browning v. Headly, 2 Rob. R. 340. In these cases the husband could not reduce the property to possession because of the life estate and his assignment ofN the reversionary interest was not deemed to be equivalent; and so upon his death, the wife took the property. But a similar rule would seem to have prevailed in certain cases in which the chose might have been immediately reduced into possession but from neglect or other causes had been left outstanding by the assignee. Elwin v. Williams, 13 Sim. R. 309, 36 Eng. Ch. R. 308; Ashby v. Ashby, 1 Coll. R. 553, 28 Eng. Ch. R. 549. See also Hutchings v. Smith, 9 Sim. R. 137, 16 Eng. Ch. R. 138; 1 Bright on Husb. & Wife 86. And even where possession did come to the husband but not clearly and distinctly in his character of husband, such possession was held not to defeat the wife’s right of survivorship. Thus in a well considered case in which a father by his will gave slaves to his married ' daughter and appointed her husband executor who qualified as such: the husband afterwards died before any division of the estate of the father was made, having by his will bequeathed the slaves to his daughter and sons: held that his possession was to be considered as in. his character of executor and not that of. husband, and that the right to the slaves survived to the wife. Wallace v. Taliaferro, 2 Call 447. So where a widow entitled to an interest in the slaves of her deceased husband marries a second time and a suit is brought by her *second husband and herself for a division of the slaves which is made by commissioners appointed by the court, but their report was never returned nor therefore confirmed: the slaves remain on the plantation in possession of husband and wife and in this state of things the husband dies: held (though by a divided court) that the husband acquired no right to the slaves. Gregory’s adm’r v. Mark’s adm’r, 1 Rand. 355. Thus it appears the law favors the wife’s right of survivorship and is not disposed to surrender it unless the husband shall take possession, nor will it permit a doubtful or constructive possession to defeat it. Eor ' where there is a possession in the husband which may be referred to his character of executor or to that of husband, it will, as we have seen, to protect the wife’s right rather refer it to the former than the latter. And so where the possession might have been as trustee or as executor and trustee. Wall v. Tomlinson, 16 Ves. R. 413; Baker v. Hall, 12 Ves. R. 496. See also Smith v. Scudder, 11 Serg. & Rawle 325; Blakey v. Newby’s adm’r, 6 Munf. 64.

Now in the present case the interest’of the wife is not a reversion expectant upon a life estate but it is a future interest far more uncertain and contingent. It is a right to slaves thereafter to be born and which only came in esse after the death of her husband. It was therefore a subject which from its character was not susceptible of any thing in the nature of a possession by John Deshazor in his lifetime nor did he assign it or exercise ownership oído any other act in regard to it which by the most liberal construction could be regarded as a substitute for or as equivalent to a reduction into possession. Every reason which would save to the wife her right of survivorship in the case of a reversionary interest would seem to apply in full or stronger force: and I am therefore of opinion that the increase of the three slaves named born after the *death of John Deshazor did not belong to his estate but were the property of Mrs. Deshazor, and that the appellees can maintain no claim to them whatever.

But if this were otherwise, there is another ground upon which as it seems to me, the appellees must fail. Their bill filed in 1843 sets up this identical' claim to the increase of the three women born after the death of John Deshazor which of course included the reversion of the third after the death of Mrs. Deshazor and prayed distribution to be made between them and Mrs. Deshazor (upon the concession that she was entitled to a life estate in a third) and an account of hires and profits. Mrs. Deshazor in her answer pleads the statute of limitations and relies upon the decree of partition of the County court in 1826 as a bar to the claim. But she also directly denies the right of the appellees to any of the slaves born after the death of John Deshazor and insists that they were her property and not the property of his estate. Upon these issues the case was heard in 1845 and a decree pronounced in general terms dismissing the bill with costs. Ho grounds are specified as those on which the decree was based nor is there any reservation of the right to sue at a future period for the third conceded to be properly held by Mrs. Deshafcor for her life; and in the absence of any specification of the grounds on which it was based and of such a reservation, the decree must be taken to rest upon each and all of the issues presented by the pleadings and must be regarded as a final adjudication of the entire right, as well that to the two-thirds then claimed as to the remaining third now sought to be recovered.

I am of opinion to reverse the decree and dismiss the bill.

The other judges concurred in the opinion of Dee, J.

Decree reversed.  