
    Joseph Davis v. Levy F. Rhame, Executor of Jeremiah Rhame, and William Clarke.
    1826.
    
      Columbia.
    
    The bill stated that the defendant, William Clarke, intermarried with Elizabeth, the sister of the complainant, who was regarded as an ideot: and that she died i r- i ■ m, ; ...... . not Jong after the marriage. I hat during her life the said Clarke took possession of part of her personal property, and soon after her death of several slaves which , had been in the possession of the defendant Levy F. Rhame, into whose hands they came after the death Jeremiah Rhame, who had been guardian of the said Elizabeth; the said Clarke not having reduced them into possession during the life of his wife, nor exercised act of ownership over them; but soon after her death they were secretly taken out of the possession of Levy F. Rhame by the said Clarke. That the said Elizabeth was entitled to a tract of land, and choses in action in the hands of Levy F. Rhame, as well as a claim upon Jeremiah Rhame for the hire of hér negroes. That letters of administration were taken out by the said Clarke on the estate of the said Elizabeth. That Levy F. Rhame had qualified as executor of the said Jeremiah, and possessed himself of his goods and chattels. That the complainant had applied to the said Levy F. Rhame to account for the management of the property of the said Elizabeth, by his father Jeremiah Rhame, and pay over to him his proportion of the choses in action which belonged to the estate of said Elizabeth; and to said Clarke for a division of the personal property of which he possessed himself after her death; and to make a division of the lands and choses in action of the. said Elizabeth, 
      which had come into his possession since her death. The bill prayed that the said Levy F. Rhame might account for the management of the property of said Elizabeth ^y the said Jeremiah, and for the choses in action which belonged to her, and for a division of the real and personal property, and choses in action, which had come into his possession since the death of the said Elizabeth.
    
    
      Partition or neceisaryto Sive P°sses-sionofanm-testate’s es-tributee. d'S"
    Possession by the guardian ofgufficienfpos-session to vest rights other
    
      To this bill the defendant Clarke put in for answer, that the said Elizabeth, complainant's sister, was his wife; and was a woman of good understanding. That in her. .life time he took possession of four negroes, to wit, Nancy, Jim, Lyddy, and Mary, and after her death of two, to wit,'Lyddy and Jim. That the above negroes were his wife’s property; that the said Jeremiah was the guardian of his wife; and that Levy F. Rhame was the executor of Jeremiah; and prayed that he should be made to account for the management of her property by the said Jeremiah. The answer further stated, that he took out letters of administration on the estate of his wife. That the two negroes, Dicey and Ivey, were in the possession of Levy F. Rhame, being hired at the time of his marriage with the said Elizabeth. That the said Elizabeth his wife at the time of her death was entitled to a tract of land and choses in action in the hands of Levy F- Rhame, and that he, the defendant, was entitled to the whole of the negroes, and to a moiety of the. land and choses in action.
    
    The defendant, Levy F. Rhame, demurred because, by the complainant’s own.shewing, he was an heir at law of Elizabeth Clarke deceased; and William Clarke had administered 6n her estate; and his administration was in full force ánd unrevoked; and that the, said William Clarke was entitled to demand and receive of this defendant any personal property of the said Elizabeth in the hands of the defendant, who was accountable to him alone.
    
      
      IV. F. De Saussure, on the demurrer of Bhame. In support of the demurrer he said, that the complainant had no right to force the defendant Bhame to account here; when he, the defendant, could not safely settle with Davis out of Court. As to the lands, the executor had nothing to do with them.
    
      W. May rant, against the demurrer. The complainant had a good equitable right to come here to oblige Rhame to account. Suppose Clarke should never call on Rham.e to account, would Davis always be precluded from requiring the settlement of an estate in which he had an interest %
    
    
      W. F. De Saussure, in reply. Jeremiah Rhame had accounted. He referred to the accounts rendered to the Ordinary.
    
      llaynesworth, for defendant,
    produced the partition, made the 17th of February 1809, of the estate of the father of complainant and of Clarke’s wife. Elizabeth’s negroes under that partition were held by the guardian, Jeremiah Rhame, for her.
    As to the land, he admitted the complainant’s right as an heir, as well as to the choses in action. But as to the negroes reduced to possession, the husband was entitled exclusively to them. The possession of the guardian was the possession of his ward. As to the cases decided in our Courts, he cited Byrne v. Steward, 3 Desaus. Rep. 135. Elms v. Hughes, 3 Desaus. Rep. 155. Bunch v. Hurst, 3 Desaus. Rep. 273. 289. There was no partition. In many cases, it is impossible to have actual manual possession.
    
      Preston, for defendant,
    
      Clarke. The principle of reduction into possession did not require manual caption. But the guardian’s was the possession of the husband. If the guardianship was at an end, then the husband’s marital rights attached more decidedly. There must be a chose in action, to prevent the marital rights attaching. But in case of funds, as soon as he can draw on the Bank the marital rights attach.
    Feb. 1825.
    
      Mayrant, for complainant.
    
      Clarke could not, as husband, have taken the negroes out of the hands of the-executor, or of the guardian, without coming into this Court for an account and settlement. The controversy could only be about two of the negroes, Nancy and Jim, who were allotted in partition, on the 17th of February 1809, to Elizabeth. But Dicey and Ivey, the children of Nancy, he contended, were not reduced to possession by Clarke.
    
    De Saussure, Chancellor.
    This case lies in a narrow compass. As to the slaves actually reduced into possession by the husband, there can be no doubt the marital rights attached on them, and the defendant, Clarke, is entitled to hold them. As to the slaves, Nancy and Jim, they were allotted to Miss Navis (afterwards Mrs Clarke), by partition, on the 17th of February 1809 ; and Miss Davis being then an infant, these slaves were placed in the hands of Jeremiah Rhame, her guardian; on his death they came into the possession of L. F. Rhame, his executor; and after the death of Mrs Clarke into the possession of her husband, the defendant. The question as to these two slaves is this — was this a sufficient reduction into possession by the husband, to entitle him to them, under the marital rights 1 I have examined the cases of Byrne v. Stewart, 3 Desaus. Rep. 135, and Elmes v. Hughes, 3 Desaus. Rep. 155, and Bunch v, Hurst, 3 Desaus. Rep. 273. These cases were fully argued and considered and decided, first in the Circuit and then by- the Court of Appeals. They establish that the marital rights, as at common law, did not attach to the exclusion of other relations; because there had not been any partition by which the property was divided, and the wife’s share of it designated and known distinctly. They decide nothing more on this subject, and I adhere to those decisions. But in the case we are ering there has been an actual partition, and the negroes in question allotted to Miss Davis, and put in possession of her guardian, whose possession was for her benefit, and really hers, and consequently her husband’s. I am of opinion, therefore, that the marital rights of Clarke did attach on the slaves, Nancy and Jim: and the children of Nancy, to wit Ivey and Dicey, must go with her.
    To give a esthf ¡losses to pro • table 0f an es_ must be an tufnf
    
    The posses-to^fe-1S possession to of personalSht P™P^ty though she ’ husband ob-6 actual
    The execu-¡“¿ator alone a deceased mahitainan cbim o^ac^ count due the
    persons en-*!tled T‘?er ,. distributions out adminds-nation,
    With respect to the demurrer by L. F. Rhame it is contended, that complainant’s claiming as one of the dis-tributees of Mrs Clarke ought to make his demand and suit against Mr Clarke, who has administered on his wife’s estate; and to whom defendant, Rhame, is primarily accountable, as executor of Jeremiah Rhame, dian of Mrs Clarke. There is no doubt that, speaking, Mr Clarke, as administrator of his wife, is entitled to call upon her guardian, or his executor, to account for his transactions in relation to her estate: and when he has done so, he is then liable to the distri-butees of his wife. So that Davis’s suit should brought against Clarke. It is said the suit of Davis, directly against Rhame, will prevent circuity of action, The Court willingly pursues the course of preventing circuity of action, where it can be done with propriety. But there are many cases in which it cannot be done. In the present instance, Clarke, as administrator of his wife, has the right to sue Rhame, executor of Rhame, as guardian of Mrs Clarke, for an account of his stewardship. Now if a distributee of Mrs Clarke were permitted to sue the executor of the guardian on the same cause of action, it would be great inconvenience. There is nothing in the objection that Clarke, by not calling Rhame to an account, might defeat complainant’s rights. In calling Clarke to an account as administrator of his wife, he will be bound to account for all her interests, which do not exclusively devolve upon himself. As to the lands and choses in action, Clarke, as survivor of his wife, is entitled to a moiety, and no more.
    'l'he possession of one joint tenant is a sufficient possession in the other tenant to vest the in^er huflltS hand.
    It is therefore ordered and decreed that the bill be dismissed, so far as the same seeks a recovery and an account for the slaves JYancy and Jim, Dicey and Ivey; and that the defendant, Clarke, do account before the Commissioner for so much of his wife’s choses in action, and that a partition do issue as to the lands.
    From this decree there was an appeal. The same arguments were used before this Court as before the Chancellor.
    
      W. Mayrant, for the appellant.
    
      W. F. De Saussure, Haynesworth and Preston, for the appellees.
    
      
       See to this effect the subsequent cases of Farly v. Farly, and Bradford v. Felder.
      
    
   Curia, per

Nott, J.

This Court concur in opinion with the Chancellor for the reasons given in the decree; and in addition to the cases cited in the decree, the case of The Ordinary v. Gieger et ux. et al. 2 Nott & M’Cord’s Rep. 151, may be referred to in support of the Chancellor’s opinion.

In that case it was held by the Constitutional Court,, that where a mother had given negroes to four children* one of whom (a daughter) afterwards married, the possession of the other joint tenants was the possession of the married daughter, and therefore vested in the husband. And that those negroes were assets in the hands of his executor, and did not belong to the wife, who survived.

Decree affirmed.  