
    *Merrit and Wife and Others v. Smith and Others.
    December, 1835,
    Richmond.
    (Absent Tucker, P., and Brooks, J.)
    Parol Gif t of Slaves — Construction of Statute — Remain-derman — Statute of Limitations. — Tenant for life of a slave makes a parol gift thereof, in 1783 or 1785, to S. and wife; and the remainderman also makes a parol gift, about the same time, of his interest in remainder, to S. and wife; S. takes and holds possession till his death in 1789; the tenant for life dies in 1800: Held, 1. a parol gift of slaves, made before the statute of October 1787, ch. 22, § 2, is, notwithstanding that statute, void, though the donee had received the possession, and held it at the time and after that statute took effect; and 2. the donee S. in this case, held the possession only under the gift of the tenant for life, not under that of the remainderman, so that, the statute of limitations could not give him title as against the' remainderman.
    Arbitration and Award — Submission as Executor — Case at Bar. — S. S. claiming slaves in her own right, and others setting up a claim to the same slaves, submit their claims to arbitration, and there is an award against S. S. and in favour of the conflicting claim; S. S. at the time of the submission, was executrix of T. S. but she did not join in the submission in that character, or allege any claim for her testator’s estate, before the arbitrators: T. S.’s legatees afterwards assert a claim to the slaves; It seems, if S. S. had had any right to the slaves as executrix of T. S. at the time of submission, the award would have embraced that right, and barred the claim for T. S.’s estate.
    This was the sequel of the case of Smith and others v. Smith &c., 4 Rand. 95.
    After the cause was remanded for further proceedings according to the principles declared in the decree of this court, new parties set up a claim to the slaves in question, and a new controversy arose, in the court of chancery; to understand which, a recapitulation of the facts of the case is necessary, with the addition of some particulars, not known when the cause was here before.
    Thomas Smith the elder, by his last will and testament, which was proved in the county court of Albemarle in 1783, devised and bequeathed to his wife, during *life or widowhood, all his estate, real and personal; and he bequeathed the remainder of several slaves, expectant ■on the estate fiven to his wife, to several of his children, and among the rest he bequeathed a woman named Winnifred to his daughter Susanna Smith, who was then the wife of another Thomas Smith, called Maryland Thomas; and then he bequeathed all the residue of his estate to his son Thomas Smith, the younger. The woman Winnifred bequeathed to Susanna Smith, after her mother’s death, had a child named Milly, born before the death of the testator, Thomas the elder; and not long after his death, his widow, the legatee for life, sent Winnifred and her child Milly to Susanna Smith, the legatee Of Winnifred in remainder, whose husband Maryland Thomas was then living. After the death of the widow of Thomas the elder, the legatee for life, which happened in 1800, and after the death of Maryland Thomas, husband of Susanna Smith, Thomas the younger, by deed dated the 7th March 1801, gave and conveyed to his sister Susanna all his right and interest in the woman Milly and her increase; Susanna being, at that time, the executrix of her husband, Maryland Thomas. But John Smith the heir at law, and other children of Thomas the elder, insisted, that that testator was intestate as to the woman Milly, and all the other increase of slaves bequeathed by him, in remainder after his wife’s death, which were born before his death. And Susanna Smith, thus holding- and claiming Milly and her increase, —Thomas Smith the younger, holding and claiming, as residuary legatee, another slave named Robin, born before the testator Thomas the elder’s death, the remainder whereof was not specifically bequeathed by that testator’s will, — and John Smith the heir at law, and two of the other distributees, of Thomas the elder, claiming distribution of all these slaves, on the ground that that testator was intestate in regard to them, — submitted their respective claims to arbitration; and the arbitrators, *in March 1801, awarded, that Robin held by Thomas the younger, and Milly and her increase held by Susanna, ought to be equally divided among the dis-tributess of the testator Thomas the elder. At the time of this arbitration and award, there were several other distributees of Thomas the elder, who were not parties to the submission. The original bill was filed by John Smith the heir at law, and the other two distributees, of Thomas Smith the elder, who were parties to the submission and arbitration, against Thomas Smith the younger, and Susanna Smith, to enforce the award. The chancellor dismissed the bill, without prejudice to any remedy the plaintiffs might have at law. But, upon an appeal taken by the plaintiffs, this court reversed the decree, and held, that the case was properly relievable in equity; that the arbitrators did indeed decide the point of law submitted to them erroneously, yet the award was binding on the parties to the submission, so far as their interests were concerned; but that as to those of the dis-tributees of Thomas the elder, who did not join in the submission to arbitration, they could claim nothing under the award; and the shares they would have been entitled to, if they had been parties to the submission, remained to Thomas Smith the younger, the residuary legatee, and his donee Susanna Smith. And the cause was remanded to the court of chancery for further proceedings.
    After the cause got back to the court of chancery, the plaintiffs amended their bill, conventing before the court, as parties defendants, the other distributees of Thomas Smith the elder, who were not parties either as plaintiffs or defendants to the original bill, and the legatees of Maryland Thomas Smith, who were in possession of some of the increase of the woman Milly, and claimed title to the same. And the cause was regularly matured for hearing upon the amended bill.
    *Tn the meantime, Merrit and wife and others, legatees of Maryland Thomas Smith, exhibited their bill against the plaintiffs and defendants in the other cause; alleging, that Susanna Smith, party to the submission to arbitration of March 1801, was at the time executrix of her deceased husband Maryland Thomas, but she did not join in the submission as executrix of her husband; she submitted her own claim to the slaves in question to arbitration, not the claim of her husband and testator’s estate; and so the arbitration and award did not affect the rights of Maryland Thomas’s legatee: that at the time of that submission and arbitration, the plaintiffs were infants: that the woman Winnifred, and her child Milly, were delivered to Maryland Thomas, in his lifetime, with the consent of the widow of the testator Thomas the elder, and of his residuary legatee Thomas the younger; that Maryland Thomas, thenceforth, held Milly and her increase as his own property, till his death in 1789; that the property, in truth, belonged to his estate; and that the plaintiffs, his legatees, were now entitled to the-woman Milly and all her increase.
    The defendants, who were plaintiffs in the first cause, in their answer to this bill, denied the right therein asserted to the slaves in question; and the defendant Susanna Smith, in her answer admitted, and maintained it. And this cause also was regularly matured for hearing.
    The legatees of Maryland Thomas Smith, to prove the allegations of their bill, took and filed, 1. The deposition of the defendant Susanna Smith, who deposed, that her mother and brother, Thomas the younger, sent Winnifred and her child Milly to her and her husband, in 178S; that Thomas the younger, before and soon after the slaves were so sent to them, told her and her husband Maryland Thomas, that he never should claim Milly and her increase; that she considered this a gift of Milly and her increase to her and her husband; and *that her brother, Thomas the younger, executed the deed of gift of the slaves in question to her, of his own accord. 2. The deposition of Thomas Smith the younger, who deposed, that his father, Thomas the elder, died in 1783, and that shortly after his death, he the deponent made a verbal gift of all his right and title in the woman Milly and her increase, to his sister Susanna and her husband Maryland Thomas; that after the death of Maryland Thomas, his sister Susanna having informed him, that she was uneasy about the title to Milly and her increase, because his gift thereof had not been in writing, he therefore gave her the deed of March 1801, conveying these slaves to her. And 3. the deposition of Rachel Smith, who deposed, that she heard the widow of Thomas the elder say, that she had given Winnifred and her child Milly to Maryland Thomas and his wife Susanna, because she believed her husband had intended to give the child Milly as well as the mother Winnifred lo them, and that it was through an omission in his will, that this intention was not expressed.
    Both causes were heard together; and the chancellor dismissed the bill of the legatees of Maryland Thomas Smith; and made a decree in the other cause, plainly, and indeed acknowledgedly, conforming with the decree made by this court, when the cause was here before, and in all respects right, if the bill of the legatees of Maryland Thomas was properly dismissed.
    Merritt & wife and others, legatees of Maryland Thomas, appealed to this court.
    I Johnson, for the appellants,
    said, that Susanna Smith joined in the submission to arbitration in her own right, not as executrix of her husband, Maryland Thomas Smith; therefore, the award did not at all affect the rights of her testator’s estate. And he endeavoured to maintain, that; upon the case stated in the bill of Merrit & wife and others, and the facts proved by the depositions, *the woman Milly and her increase were the property of Maryland Thomas in his lifetime, and at his death devolved to his representative and legatees: for Maryland Thomas had actual possession of the woman Milly, for more than five years, taking the date of the gift from the deposition of the donor, Thomas the younger; and the statute of limitations gave him the title. Jordan v. Murray, 3 Call 85.
    Leigh answered, that Susanna Smith did not submit the justice of her own claim alone to arbitration ; she submitted also the justice of the claim of the heir at law and distributees of Thomas Smith, the elder, and their claim, being established by the award, equally defeated any claim she might have had as executrix of her husband, as the claim she set up in her own right. But, however, that might be, he said, it was plain, that Maryland Thomas Smith never had any property at all in the woman Milly and her increase. For, 1. the depositions afforded very inconclusive proof of the case alleged in the bill. 2. It was obvious, that Maryland Thomas Smith never held possession under the alleged donor Thomas Smith the younger; he held under the widow of Thomas Smith the elder, who was the tenant for life; his donor, Thomas the younger, was only entitled to the remainder, which did not fall in during Maryland Thomas’s life. But, 3. admitting that Thomas the younger made a verbal gift of the slaves in question to Maryland Thomas, in 1783 or 1785; and that Maryland Thomas held possession till bis death in 1789; he acquired, neither by the gift nor the possession, any property in these slaves. The statute of limitations did not operate to perfect his title; for that did not begin to run against the donor, till the death of the tenant for life in 1800. The verbal gift was void by the statutes of April 1757, ch. 6, 'i 2, and September 1758, ch. 5, | 1, 7 Hen. stat. at large, pp. , 119, 237. *And though the statute of October 1787, ch. 22, g 2, 12 Id. 506, which provided, that the former statutes should not be construed to extend to verbal gifts of slaves, whereof the donees had had possession, was passed during Maryland Thomas Smith’s life, and while he held the possession, yet this statute did not operate retrospectively, to make good the previous verbal gift. Turner v. Turner, 1 Wash. 139.
    
      
      Statute of Limitations — When It Begins to Run against Remaindermen. — See Ball v. Johnson, 8 Gratt. 281, and note. The principal case is cited and approved in Merritt v. Hughes, 36 W. Va. 362, 15 S. E. Rep. 58; Central Land Co. v. Laidley, 32 W. Va. 143, 9 S. E. Rep. 64.
      See monographic note on “Limitation of Actions" appended to Herrington v. Harkins, 1 Rob. 591.
    
    
      
       See monographic note on "Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
    
   CARR, J.

It is admitted, that the decree is right, if the bill filed by the legatees of Maryland Thomas Smith was properly dismissed. Therefore, the questions are, 1. Whether Maryland Thomas acquired any title in the woman Milly and her increase, during his life? and 2. Whether the submission to arbitration, and the award, embraced that title.

As to the first, let the facts alleged and contended for by the appellants, be taken as true, though they are very defectively proved. There was a parol gift by the tenant for life, followed by delivery of possession, to Maryland Thomas, in 1783 or 1785; then there was a parol relinquishment of his right and title by Thomas the younger, the remainderman ; and Maryland Thomas held the possession till his death in 1789: did he thereby acquire the title? If we are to be governed by the laws in force at the time of the gift, as settled by the decisions of this court, the answer must be in the negative. The statutes of April 1757, ch. 6, (j 2, and September Í758, ch. 5, § 1, provided that no gift of slaves should be good and sufficient to pass any estate in such slaves, unless the same should be made by will &c. or by deed in writing, duly proved and recorded &c. and those statutes remained in force, unaltered, till October 1787, when a statute was passed, reciting the statutes of 1757 and 1758, and that it had been determined by a late adjudication, that all gifts of slaves were void, *unless made in writing &c. and enacting, that, thenceforth, the statutes of 1757 and 1758, should be construed to extend only to gifts of slaves, whereof the donors have, notwithstanding such gifts remained in the possession, and not to gifts of such slaves as had or should at any time come into the actual possession of, and have remained with, the donee, or some person claiming under such donee; 1 Rev. Code, ch. 111, g 51, p. 432. Now, in Turner v. Turner, 1 Wash. 139, decided in 1792, this court held, that a parol gift of slaves made between April 1757 and October 1787, though accompanied by delivery of possession, was void, and that the statute of October 1787 was only prospective in its operation. See also Jordan v. Murray, 3 Call 85, and Spiers v. Willison, 4 Cranch 398. The parol gift, in the present case, was made by the widow of Thomas Smith the elder, the tenant for life, in 1783 or 1785, and the gift or release of the remainder by Thomas the younger, was made soon after. By the law at that time, these gifts were void. If it be said, that the possession of Maryland Thomas Smith was sufficient to give him a title, and Jordan v. Murray be relied on to shew that the parol gift may be given in evidence to shew in what right he held ; the answer is, that during the life of old Mrs. Smith, the tenant for life, Maryland Thomas’s possession could not be adversary to Thomas the younger, the legatee in remainder, who had no right to the possession during the life of his mother; and she lived till 1800. I conclude, therefore, that Maryland Thomas Smith had no title whatever to Milly and her increase, and, of course, could give none to his legatees.

It is, then, not worth while to discuss the question, whether this ground of claim was submitted to the arbitrators in 1801; for, whether it was or not, if Maryland Thomas Smith had no title at all, the bill of his ^legatees was properly dismissed. I shall, however, merely add, that if Susanna Smith had really held the slaves as executrix of her husband, (which, in fact, she did not pretend) and his title had been better than it is, we must have taken it as submitted by her to the arbitrators.

The other judges concurred. Decree affirmed.  