McCargo v. Callicott 2 Munf. 501, 16 Va. 501

McCargo, Executor of James Callicott, v. Susanna Callicott.

Tuesday, October 15th, 1811.

Husband and Wife — Dower by Former Marriage-Rights of Husband in.* — when a widow marries again, the slaves which she held for the term of her life, as part of the estate of her first husband, belong to her second husband, and his representatives, until her death.

The question debated in this case was, whether a widow, holding slaves in right of dower, and marrying again, thereby vests them in her second husband, so that, upon his death, they shall go to his representatives; or whether she shall have them for the residue of her life?

Eittlejohn McCargo, executor of James Callicott, deceased, declared in detinue for several slaves, against Susanna Callicott, his widow ; charging that ‘ ‘the said James Callicott, in his lifetime, to wit, &c. was possessed of said slaves, of theva'ue aforesaid, as of his own proper slaves, to hold, to him and his executors or administrators, for and during the life of the said defendant Susanna Callicott; and that afterwards, to wit, &c. the interest of said James Calli-cott and his executors in the slaves aforesaid being unexpired, the said defendant, by finding, or other means, without right, possessed herself of the said slaves, and the same to the plaintiff doth refuse to deliver, though often required,” &c. Plea, non detinet, and issue.

The jury found a special verdict, stating that, in the year 1795, the defendant was entitled to the slaves, in the declaration mentioned, for the term of her life, as her thirds of the slaves of George Brooke, her first husband, who died intestate; that the testator of the plaintiff then intermarried with the defendant, and, by virtue thereof, *was possessed of the slaves aforesaid until his death in the year 1807; that he made his will on the 21st day of December, 1806, which they found in hacc verba; that the defendant was in possession of the slaves, in the declaration mentioned, at the period of the commencement of this action, and still retains possession of them, &c. The will contained a devise to the defendant of the plantation the testator lived on with six negroes, (by name,) being different from those now in question, two feather beds and furniture, two horses, twelve head of cattle, twelve head of sheep, and fifteen head of hogs, also the use of his table and kitchen furniture, during her life, and at her death to be equally divided among his daughters. All the residue of his estate, real and personal, (in general terms,) was directed to be equally divided between his two sons.

The county court gave judgment, for the plaintiff, for the slaves in the declaration mentioned, if to be had; if not, for their respective values, found by the jury. Upon an appeal, that judgment was reversed by the district court; whereupon the plaintiff appealed.

Call, for the appellant.

Before the revolution, it was argued by some gentlemen, from a supposed similitude between slaves and chattels real, that if the husband did not, during the coverture, sell his wife’s dower slaves, they survived to her. But now slaves are personal estate; and all the wife’s interest in them belongs to the hus-*544baud and his representatives. Besides, in this case, the widow has a provision under the will, and therefore cannot claim against it. (a)

Wickham, for the appellee.

The uniform practice before the revolution was for the widow to hold her dower slaves for life, notwithstanding her second marriag-e. The áct of 1727, c. 4, s. 4, (b) applied only to slaves conveyed, given, bequeathed, or descended to a feme covert; *but not to dower slaves, in which the widow holds an estate of a peculiar character, vesting by act of taw only. The words of the last section of that act expressly gave her an estate for life in such slaves. They were not vested in her, in her own right, but only in a qualified manner, for the support and maintenance of children, in case the other estate of the decedent should be insufficient for that purpose; and she was not permitted to carry them out of the colony.

Neither is the law altered in that respect. The act of 1792, c. 103, s. 44, 45, (c) prohibits the widow, and, in like manner, her second husband, from carrying her dower slaves out of the state. This circumstance is conclusive.

Mr. Call’s second point does not occur in the case. There is no evidence that James Callicott, the second husband,’ ever claimed the slaves now in question. They are not mentioned in the will. She does not claim dower out of his estate, but only endeavours to retain her dower of the estate of her first husband. There is, therefore, no repug-nancy between her doing this and her holding under the will.

Call. Mr. Wickham’s argument is a perfect felo de se; because it proves too much. The full effect of the word “convey” takes in every species of acquisition. Was it ever doubted, if the husband sold his wife’s dower slaves, tnat the purchaser had a good right? Mr. Wickham’s argument amounts to this; that the husband has no right to such slaves. If so, he has no right to sell them; neither can his creditors take them by execution; which is done every day. Can there be any reason for the life’s losing to the husband an absolute estate in personals, and yet not an estate for life? Choses in action do, indeed, according to Wallace v. Taliaferro, 2 Call, 447, survive to the wife. But the evident intention of the law is to give to the husband all her personal property in possession. *It does not follow, from the prohibition to carry the slaves out of the state, that the wife shall have them at his death. That provision is only for the benefit of those in remainder. The husband has either his wife’s right, or none at all; and if he has her right, it must be an estate for her life.

Wickham. I do consider dower in slave* as a very anomalous property; slaves, in some respects, resembling real, and, in others, personal estate. Dower slaves are of the nature- of real estate. The husband is entitled to their profits during the cover-ture. They may be sold, under execution, for the joint lives of the wife and husband; but not for a longer time. Her dower is a continuation of her first husband’s estate. Of what use would her dower lands (which, it is admitted, survive to her on her second husband’s death) be, without slaves to work them? If the legislature had considered the slaves as belonging to the husband for the wife’s life, it would have made the forfeiture imposed upon him for carrying them out of the state coextensive with her life; but it is extended only to his death. This shows plainly the sense of the legislature. The wife has not the property in the slaves, but only the use for her life, (d)

Call. Since the act declaring slaves to be personal estate, (e) they are not, properly speaking, held as dower. The legislature has cautiously avoided using that word; instead of which its language is, that the wife shall have “the use, for her life, of such slave as shall be in her share.” This does not prevent her disposing of such use to her second husband; which she does by the marriage.

The words of the law, imposing the forfeiture on the husband for carrying the slaves out of the state, (f) are, not merely that he “shall forfeit them for his life,” but “all the estate which he holds in right of his wife’s dower for and during the life of the said husband.”

*No conclusion, therefore, in favour of the point contended for by Mr. Wickham, can be drawn from this clause.