
    Robert W. Harper, Administrator of Edward F. Barnes, deceased vs. Richard T. Archer, and William Eggleston, guardians of S. E. Archer.
    The right, of a widow to the personal estate of her deceased husband, until a division thereof has been made, is a mere chose in action; and if she marries again, and her husband does not reduce the same into his possession, the right will survive to her on his death.
    •B. died intestate, leaving a daughter and widow. A. married the widow and administered upon the estate of B., but died before a division of the personal estate of B. had been made. H. married the widow and administered upon the estate de bonis non of B. The wife of H. died, leaving a son by A.; nearly eight months before whose birth the daughter of B. died. Held, that until a division was made of the personal estate of B., the right of his widow thereto, was a mere chose in action, and upon A.’s death survived to her; and that H. was entitled to one half thereof as administrator of his wife, and in her right, and the son of A. to the other half as heir at law of the daughter of B.
    The right of a husband to his wife’s interest, in the personal property of which a former husband of his wife died seized is inchoate, and his title is complete only when a division thereof has been made and he has reduced the same into his possession.
    In error from the probate court of Claiborne county;. Hon. William M. Randolph, judge.
    R. T. Archer and William Eggleston, guardians of Stephen E. Archer, filed their petition to the March term, 1842, of the Claiborne probate court, stating that in the year 1827, Edward F. Barnes, of said county, died seized and possessed of certain real and personal property, leaving a widow (now Mrs. Catherine C. Harper,) and one child, Eliza F. Barnes; that the said Eliza F. inherited from her father, one half of certain negroes and other personal property, in said petition specified; that no division of said property was ever made; that in the month of J uly 1835, Eliza F. Barnes died unmarried and intestate: that Stephen E. Archer is the brother of the half blood of the said Eliza F., and was born on the first day of March 1836 ; that the said Stephen E. Archer is consequently the heir of the said Eliza F., and entitled to her portion of said property.
    They then pray for an order making division of said property, and for citations, «fee.
    . At the April term 1842 of said court, Robert W. Harper and Catherine C. Harper his wife, filed their answer to the foregoing petition, admitting that Edward F. Barnes died in 1827, seized and possessed of the property in the petition specified; that he left a widow, now respondent Catherine C. Harper, and only one child the said Eliza F. daughter of the said Catherine C.; that the said Eliza F., inherited one half of the property in the petition mentioned; that no division of said property was ever made, and that it is still the undivided estate of Edward F. Barnes; that the said Eliza F. died unmarried and intestate (aged about eight years,) on the ninth of July 1835 ; and that Stephen E. Archer son of respondent Catherine was born on the first day of March 1836. But they do not admit that the said Stephen E. Archer is or ever was the half brother of the said Eliza F. Barnes, entitled as such to inherit from her, inasmuch as the "said Eliza F. had been dead seven months and twenty-one days before the birth of the said Stephen E. And whether the said Stephen E. is or ever was the half brother of the said Eliza F.; they deny that as such he is entitled to her portion of the property mentioned in the petition. They allege that said estate remains to be distributed as the estate of Edward F. Barnes, and that as such no part can be distributed to the said Stephen E. nor to the representatives of Stephen C. Archer deceased.
    They allege and claim that the distributive share of said Catherine in the personal estate of Edward F. Barnes, has survived to her as his widow ; and if distribution of said property should be ordered, they pray that the distributive share of the said Catherine in' the estate of said Edward F. Barnes may be set apart and assigned to her.
    At the June term, 1842, of the court, the cause was submitted upon petition and answer, and by argument of counsel taken under advisement of the court.
    At the August term, 1842, the court decreed that division of said personal property should be made, between the administrator of Stephen C. Archer deceased, and Stephen E. Archer according to the prayer of the petition; and appointed commissioners to make the division; from which decision this appeal was taken.
    The appeal having been dismissed in this court, the case is now brought up by writ of error sued out by R. W. Harper as administrator of Mrs. Catherine C. Harper; who died after the decision in the court below.
    It was admitted as part of the facts of the case, that Stephen C. Archer was married to Mrs. Harper, and resided on the plantation of Edward P. Barnes, deceased, with his wife, the widow of Barnes; that he managed for a time the undivided estate of Barnes and died before any division took place.
    
      J. B. Thrasher, for plaintiff in error.
    This case was before this court on appeal from the probate court of Claiborne county, at the March term, 1842, and was fully argued, decided, and reported in 4 S. & M. 99. The merits of the case were examined by the court, and settled in the opinion therein reported, but the appeal bond was informal, being made payable to the parties, instead of the judge of probate, and for this reason the cause was dismissed, and a writ of error sued out to bring up the same record, in which attitude it now appears in this court, on the same record and state of proceedings, «fee. See the case reported fully, with brief of counsel, in 4 S. «fe M. 99.
    The court is asked, in this case, therefore, to give the judgment of distribution, which the probate court ought to have given.
    
      Coleman and Guión, for defendants in error.
    Two questions arise in this case. ' The first, whether S. E. Archer was capable of inheriting from his half-sister, and entitled to her share of the estate of Barnes, was settled in the case in 4 S. & M. 99. The second, whether Harper is entitled to the interest of his wife in the estate of Barnes, by right of survivorship, in preference to S. E. Archer, will depend upon the principles settled in the case of Wade v. Grimes, 7 How. R. 425. If the facts admitted on the record in this case, constitute a reduction to possession by S. C. Archer, of the interest of his wife in the personal estate of Barnes during her life, Harper is not entitled to that interest as survivor, either as administrator of his wife, or individually, as survivor. On this point we refer to Cable's Heirs v. Martin and Bell, I How. R. 558, and Loiory v. Houston, 3 How. R. 394.
   Mr. Justice Clayton

delivered the opinion of the court.

This case was formerly before the court, and is reported in 4 S. & M. 99. It was then decided that S. E. Archer was entitled to the estate of his half-sister, Eliza F. Barnes.

The case is now brought up, for the opinion of this court, as to the disposition to' be made of the remaining portion of the personal estate of Edward F. Barnes, deceased. The widow of said Barnes, and mother of Eliza F. Barnes, married S. C. Archer, the father of S. Edward Archer. After the marriage Archer lived with his wife upon the plantation of Barnes, and managed for a time the undivided estate of Barnes, but died before any division was made. The widow afterwards married Harper. The question is, whether, under these circumstances, Archer, the second husband, was entitled to that portion of the estate of Barnes, which, if a division had been made, would have belonged to his wife. It is very clear that he was not. Until division the right of the wife was a mere chose in action. He did not take any steps to reduce it to possession. The right accrued to her before their intermarriage. She survived, and of consequence her right survived to her. Wade v. Grimes, 7 How. 433; Henderson v. Guyot, 6 S. & M. 211.

The order of the probate court, directing division of the personal property, in the petition mentioned, to be made between the administrators of S. 0. Archer, deceased, and Stephen Edward Archer, by which Mrs. Harper was excluded from all share in the estate of her first husband, is reversed, and in lieu thereof, it is directed that a division of said personal estate be made, and one half thereof allotted to said S. E. Archer, and the other half to Harper, as the administrator of his deceased wife, and in her right.

Decree reversed.  