
    *Taliaferro & al. v. Taliaferro & al.
    [November, 1786.]
    Wills — Probate—Suspension at Instance of Heir — Right of Legatees — Volunteers—Case at Par. — If the probate of a will be suspended, a.t the instance of the heir at law ; and remains, for many years, unnoticed, during the infancy of the legatees, but is afterwards proved : the legatees will, notwithstanding some delay after majority, be entitled to assert their rights, (of which they were ignorant, until the final probate of the will,) against volunteers.
    Husband and Wife — Power of Husband over Personalty, —The husband may sell the personalty of his wife, not reduced into possession.
    In June 1715, John Taliaferro made his will and devised the residue of his estate to be equally divided between his wife and his seven youngest children, - Charles, Robert, Zachary, Richard, William, Sarah and Catharine, the sons being left executors of the will. Charles and Catharine afterwards died in the lifetime of the testator; whereby their shares of the lands and slaves descended to their brother Lawrence, who was the testator’s eldest son and heir at law. Charles Taliaferro left two infant children, Kemp and Mildred. Robert and Zachary Taliaferro proved their father’s will; but, dying soon afterwards, the administration of the estate was chiefly conducted by Lawrence Taliaferro, and John Battaile, who had married the testator’s daughter Sarah.
    On the 20th of November, 1720, Lawrence Taliaferro and John Battaile purchased Zachary Taliaferro’s share in the said residue of his father’s estate, for the consideration of three slaves, to wit, Prince, Peg and Rock. On the 21st of February, 1721, Zachary Taliaferro made his will, and thereby devised his lands to his youngest brothers, Richard and William, and the rest of his estate to his said nephew and niece, Kemp and Mildred Taliaferro, leaving his brother, Robert Taliaferro, executor. The will was carried to Essex court, for probate; and was actually proved by the oath of the executor and two of the subscribing witnesses; but Lawrence Talia-ferro, the heir at law, was allowed time to contest it; and the court gave no judgment for, or against, its validity.
    *On the 29th of September, 1725, Robert Taliaferro, gave a bond, in the penalty of £76, to John Battaile, Richard Taliaferro and William Taliaferro, conditioned that, if the slaves sold, by Lawrence Taliaferro to Zachary Taliaferro, November 20th, 1720, should be recovered, from Lawrence Taliaferro, by Kemp and Mildred Taliaferro, the obligor would pay half the bond: and, on the 18th of March, 1727, Richard Taliaferro gave a bond in the penalty of £62, to John and Francis Talia-ferro, sons and executors of Lawrence Tal-iaferro, conditioned that, if Kemp and Mildred should, by virtue of Zachary Tal-iaferro’s will, recover the three slaves, Prince, Peg and Rock, Richard Taliaferro would pay half of that bond.
    In 1729, William Strother married Mildred Taliaferro, then under age; and sold the right of herself and Kemp, at that time, also an infant, for £40 sterling, giving bond, to John Battaile, Richard Taliaferro, William Taliaferro, and the two sons (John and Francis) of Lawrence Taliaferro in the penalty of ,£250 sterling, conditioned that Strother should indemnify the obligees and Kemp Taliaferro.
    In May 1745, Richard Taliaferro had the will of Zachary Taliaferro proved by the third witness, and admitted to record. By which means Kemp Taliaferro, first became acquainted with his rights; and thereupon William Strother, for £20 sterling, assigned his wife’s right.to him the said Kemp.
    In July 1749, Kemp Taliaferro brought suit, in the county court of Spotsylvania, for the shares of himself and Mildred, on repayment of the £40, in Strother’s bond, with interest: soon after which he died, and the suit was revived in the name of Mary Taliaferro, his widow and administratrix, and of Harry Taliaferro, his son and heir. The answer of Francis Taliaferro says, that the slaves Prince, Peg and Rock, had been purchased by his father, and were no part of his grandfather’s estate. That he and his brother were not parties to Strother’s bond: but took bonds of indemnity, in 1727, from, John Battaile, Richard Taliaferro and William Taliaferro.
    *Several unimportant depositions were taken: and the county court, March 2d, 1752, decreed that Francis and William Taliaferro should deliver up the slaves mentioned in the answer, and account for their profits: and that the plaintiffs should pay the £40, in Strother’s bond, with interest: but should not recover the land.
    The suit remained upon the docket, until April 1762; when it was removed into the general court. William Taliaferro and John Taliaferro, both died intestate, and without issue; and, upon their deaths, their estates entered into the family of Francis Taliaferro; who had died, in the mean time, leaving his son Lawrence Taliaferro, jr. his executor: and the latter was made defendant to the suit, as well as Haye Tal-iaferro, John Taliaferro, Francis Talia-ferro, William Taliaferro and Richard Brooke, who had married the daughters of Francis Taliaferro; and to whom distributive shares of his estate, in right of their wives, had been allotted. Some depositions of no great importance were taken: and upon a hearing of the cause, the general court dismissed the bill with costs: From which decree, the plaintiffs appealed to the king in council: which appeal was, after the revolution, transferred to this court.
    For the appellants, it was contended, that the decree of dismission by the general court was erroneous, as the whole transactions shewed manifest fraud; for the suspension of the probate of Zachary Talia-ferro’s will was premeditated, and done with a view that, through lapse of time, it might be forgotten; ora belief established, that it had been rejected by the court. That this was, to a great degree, effected too; for Strother evidently acted under the impression that the validity of the will was doubtful; and that it would be better to take a trifle, for a questionable right, than to lose it altogether. But this mistake, which arose from the misrepresentations of the other parties to the bargain, ought not to prejudice him, or his wife; and much less Kemp Taliaferro, whose claim he had no right to sell. *That the subsequent establishment of the will, and the accidental discovery of their rights excused all the delaj-s which had taken place ; and entitled the appellants to the property, which was still in the hands of volunteers, who had no right to hold it.
    For the appellees, it was insisted, that there was no proof of fraud. That Lawrence Taliaferro had, as heir at law, a right to contest the will; for which purpose a continuance of the application for probate in Essex court was absolutely necessary; and, if the executor did not think to urge the matter afterwards, the heir was not to blame, as he was not bound to strive to promote his own disherison, and he might reasonably suppose, from the neglect of the executor, that the establishment of the will was given up, as desperate. That Strother was fully apprized of the will, and might have brought the case to a decision himself; but instead of entering into the controversy, at a time when the matter was yet recent, and the defence would have been effectual, from testimony which might then have been procured, he chose to sell the claims: for which, in fact, he obtained full value. That the sale, by Strother, was good, as to himself and wife, at least; and, after so great a lapse of time, it would be unreasonable to open the transactions, with which the parties appeared, for so long a period, satisfied.
    
      
      See monographic «ote on "Husband and Wife” appended to Cleland v. Watson, 10 Gratt. 159.
    
   The court was of opinion that whether the delay with respect to the probate of the will was fraudulent or not, was unimportant; for, in either case, Kemp and Mildred Taliaferro were equally unapprized of their rights. Yet, as Strother the husband of Mildred had notice, and might by consulting the records of Essex court have obtained full information, he could not allege mistake; and, as he had power to sell his wife’s claim to personalty, the sale, as to her share, was effectual: but, as he had no authority to sell that of Kemp, who was then a minor, and had not notice of the circumstances until the final probate of the will in 174S, "x'and had done nothing to confirm the sale, the same was void as to him, and the plaintiffs entitled to his moiety upon payment of the ,£40, with interest as offered in his bill. And the following was the decree which was entered:

“The court, having maturely considered the transcript of the record, and the arguments of counsel in this cause, are of opinion, that so much of the said decree, as dismissed the bills of the plaintiffs Mary Taliaferro and Harry Taliaferro, ought to be reversed and annulled ; and, proceeding to give such decree as the said late general court ought to have given, do decree and order, that the plaintiffs Mary Taliaferro and Harry Taliaferro do recover of the defendants one moiety of the slaves mentioned in the answers of the defendants, together with their increase and profits since the year 1726, including the profits of those who are dead, down to the times of their respective deaths, if any such there be, to be ascertained and adjusted, either by commissioners, who shall make a reasonable allowance for the raising and maintaining children, and supporting those which were unprofitable, or by a trial at law, as the high court of chancery shall think fit to direct, and also their costs by them expended, as well in the said late general court as in the prosecution of their appeal here; and that the residue of the said decree, as to the plaintiff Mildred Strother, be affirmed. All which is ordered to be certified to the said high court of chancery.”  