Cordall Norfleet, first husband of Mary Gee, one of the complainants, on the 21st of March, 1788, made his will, and thereby gave to Cordall Norfleet Bynum, 694 acres of land in North Carolina, and a negro man j about which there seems to be no question. He then gives to his son John Norfleet, all the residue of his land, to him and his heirs forever. The will then proceeds thus: “ Item, I give to my beloved wife Mary Norfleet (now Mary Gee) the use of all my land, for the benefit of my children, Elizabeth Norfleet, (now Elizabeth Blunt, one of the defendants) John Norfleet (since deceased, of full age) and Sarah Norfleet (afterwards married to one Jones, whom she survived, and died, after she had attained the age of nineteen or twenty years, but before the age of twenty-one, having made a will as hereafter mentioned) during her life, or widowhood, or until my son John Norfleet shall come of age, at which time, my said wife Mary shall have the use only of the plantation where I now live: I do also give to my said wife Mary Norfleet, during her life, or widowhood, all the residue of my estate, that I may die possessed of, for the benefit of my children, Elizabeth Norfleet, John Norfleet and Sarah Norfleet, to them and their heirs forever, at which time my will and desire is, that my wife Mary Norfleet, my friends, John Wilkinson and James Wilkinson, shall divide my estate in such manner as they may think best, between my children ;” and appoints them executors.
Mary Norfleet and John Wilkinson proved the will December 1788, and qualified as executors thereto, and time was reserved for the other executor to qualify j which he does not appear to have done.
That on the 21st of September, 1798, Sarah Jones (widow of Charles B. Jones, and one of the daughters of Cordall Norfleet, in his will mentioned,) made her will, and in the same year died, having attained the age of nineteen or twenty, only, whereby she gave certain legacies to the mother and sisters of her deceased husband, Jones, and then gives to Sarah Norfleet Blunt, daughter of William Blunt, one half of all the rest of her negroes, (with some exception) upon certain conditions, concerning which nothing is said in the bill, and then gives to Lavinia N. Gee (her half sister) all the residue of her negroes, both in remainder and reversion, (except those her brother John Norfleet got by his wife,) to her and her heirs forever. She then gives all the land she is entitled to, to her mother, Mary Gee, the complainant: and constitutes her uncle, John Wilkinson, her residuary legatee, and her executor, together with her father-in-law, James Gee, the complainant; who both proved the will, and took upon them the executorship.
William Blunt, and Elizabeth his wife, in their first anwer, admit the allegations of the bill generally, but say, that the complainant Mary (widow of Cordall Norfleet) did not renounce all benefit under the will, till about the year 1794, (five or six years after her husband’s death) after she had been several years in full possession and enjoyment of the property devised her by her former husband ; that they are advised she is now barred of her dower and distributive share of the personal estate, having elected to accept the provision made for her by the will; and they pray that she may be decreed to deliver up the dower lands which she holds, and account for the profits of them, together with the personal estate which she received as her distributive share, and the dower slaves which she now holds. That they are willing that such a division should be made of the estates of Cordall Norfleet, John Norfleet and Sarah Jones, as the law directs ; that they have reason to believe that the complainant Mary is accountable for a considerable proportion of Cordall Norfleet's estate, which she used while she was his widow ; and pray an account.
Afterwards, by way of amendment to their former answer, they say that the executor of Cordall Norfleet did, upon their intermarriage, allot to them about eleven slaves j that, since the death of John Norfleet, they have set apart seventeen as his property, and about the same number for Mrs. Jones; that there remain others, which are held by the complainants, and in which the complainant Mary claims dowers and they submit to the court, whether the slaves last mentioned are to be divided by order of the court, or whether, under the will, they are to be disposed of by John Wilkinson, the acting executor, among the children of the said Cordall Norfleet, and their representatives.
(Quars, If she ought not to have been made a party to the suit.)
Among the exhibits are a bill, answer and decree of Southampton court, for the assignment of dower to the now complainant Mary; and an allotment to her, of her share of the personal estate of Cordall Norfleet, November 19, 1794: But no report, in pursuance thereof, appears to have been made.
Several other exhibits are filed, which seem not to affect the principles upon which the case is to be decided.
The chancellor pronounced the following decree, in substance :
That the plaintiff Mary, by failing to’ renounce the benefit (if it were a benefit) under the will of her husband, was not barred of her dower in his lands; and of her share in his goods; and directed an allotment and assignment accordingly ; and that the same be reported to the court, with any matters by themselves thought pertinent, or by the parties required. And directed that the complainant Gee, and the defendant John Wilkinson, render an account of their administration of the estate of Sarah Jones.
And afterwards, on reconsideration of the papers, &c., he declares, that the land which Sarah Jones, who died an infant, derived from her father, descended exclusively to her sister Elizabeth Blunt. That Elizabeth Blunt, and her half brother William H. Gee, and half sister Lavinia N. Gee, succeed (exclusively of the mother Mary Gee, the com
J805. _ Gee&al.
John Norfleet, at the time of his death, being of the full age of twenty-one years, his lands descended, according to the course prescribed by the act of 1785, without regard to the parent from whom they were derived. The plaintiffs Mary Gee his mother, and his half brother William H. Gee, (and his half sister Lavinia Norfleet Gee, if born, which seems doubtful,) were therefore capable of taking a part thereof, by immediate inheritance from him. That part which descended to Sarah Jones his sister, had she been dead, at the time of his decease, would have been liable to the same course of inheritance: the descent to Sarah Jones, could not interrupt that course. This case clearly proves that the policy of the law was not to prevent lands, which may have descended on the part of the father to an infant, from being inherited according to the general course of the act of 1785 ; but such only, as descended immediately from the father. For it seems absurd to suppose the mother might inherit lands which descended immediately from her son, but could not inherit them after they had vested in another of her children. The mother, therefore, ought to have been admitted to one third of the lands which descended from John Norfleet to Sarah Jones; her daughter Elizabeth Blunt, of the whole blood to Sarah Jones, should have one third; and W. H. Gee and L. N. Gee, the brother and sister of the half blood, should have had the other third in equal portions between them.
I shall divide the consideration of this question, into two points:
1. Whether she is entitled to dower in the lands and slaves ?
2. Whether to a distributable share of the personal estate ?
First. The right of dower being a right to a freehold estate, could not by the common law, be barred by a jointure, or by the acceptance of any other collateral satisfaction, or recompence. Vernon’s case, 4 Co. 1. Co. Litt. 36, b.
But, by statute of the 27 H. 8, if a jointureabe made according to the purview of that statute, it is a bar of dower. Ibid.
A devise of an estate to a wife, cannot be averred to be in satisfaction of dower, or of jointure, unless it be expressed to be so in the will; for there can be no averment contrary to the will; and, consequently, no averment contrary to the consideration implied in every devise, which is the kindness of the testator. Co. Litt. 36, b. 3 Bac. Ab. 224, 225.
So where one devised lands to his wife during her widowhood, and she married again and brought dower, and this devise being pleaded in bar, it was held to be no bar, 1. Because a will imports a consideration in itself, and cannot be averred to be in bar of dower, unless it be so expressed. 2. Because dower cannot be of less estate than for life of the wife. 3. Because a right of dower cannot be barred by collateral recompence. Moore, pl. 103, cited 3 Bac. Ab. 125. 1 Eq. Cas. Ab. 218, c. n. 2 Eq. Cas. Ab. 386.
But although a collateral satisfaction is not pleadable at law, in bar of dower, yet acceptance of a term of years, or of a sum of money, or of any other kind of collateral satisfaction, in lieu of dower, is a good bar in equity. Harg. Notes on Co. Litt. 36, b. n. 1, who cites Lawrence v. Lawrence, 2 Vern. 365.
But even in a court of equity, it has been decided, that a devise of lands to a wife, who was entitled to dower, is no bar of dower, but a voluntary gift, unless it be said to be in recompence, or in satisfaction of her dower. 2 Eq. Cas. Ab. 389, c. 18, cites Preced. Chan. 133, anno. 1700. Hitchin v. Hitchin.
And no chattel interest can bar dower, at law, or within the statute; yet where a term of years was settled in jointure in bar of dower, in regard the wife expressly consented, to accept such an interest for her jointure, the court would not admit her to have both. 9 Mod. 152. 2 Eq. Cas. Ab. 388. Eastwood v. Vincke, 2 P. Wms. 616.
But now, by the act of 1785, ch. 65, (L. V. 194, ch. 94), if any estate be conveyed by deed or will, either expressly, or by averment, for the jointure of the wife, in lieu of her dower, according to the purview of that statute, such conveyance shall bar her dower. The statute requires, that the estate be made to take effect in her own possession, immediately upon the death of her husband, and to continue for her own life, at the least, determinable only by such acts as would forfeit her dower at the common law.
And if the conveyance be made before marriage, and during the infancy of the wife; or after the marriage, the widow, at her election, may waive such jointure, and demand her dower. Ibid. And no time is limited for her to make her election, in respect to her right of dower in lands.
And such right of dower cannot be prejudiced by any devise in the will of the husband, 1785, ch. 61, (L. V.
Since the commencement of these acts, the right of dower in Virginia, cannot be barred, or prejudiced, by any act of the husband during the coverture, to which the wife shall not have given her consent, by matter of record; nor by his last will, without her consent, after the death of her husband, either expressly given, or by necessary implication. For although a devise or legacy to her should be expressly declared to be in lieu and satisfaction of her dower, yet she cannot be bound thereby, unless she chooses it, inasmuch as the statute expressly reserves to her the right of waiving, or accepting it, as she pleases.
A waiver may be either express or implied. Express,where the devisee actually refuses to accept the thing devised. Implied, where the devisee does some act, from whence it may be inferred that she does not accept the benefit intended her under the will. Gosling v. Warburton, 1 Cro. 128. 3 Bac. Abr. 225.
For it is a conclusion in equity, that wherever any person, having a claim upon a man’s estate, independent of him, and also a claim thereupon, under his will, which claims are repugnant to each other, pursues the former, the latter is -thereby waived, or abandoned ; for it being against the intention of the will, that the devisee should have both, equity therefore considers such devise to be upon an implied condition, that the devisee shall abandon his original title, or shall waive his title by devise. Pow. Dev. 443.
The cases of Axtel v. Axtel, 2 Ch. Cas. 24. Thomas v. Gyles, 2 Vern. 232. Noys v. Mordaunt, Ibid. 581. Herne v. Herne, Ibid. 555. Streatfield v. Streatfield, Cas. T. Talb. 176. Robinson v. Kingsley, 1 Ves. 238. Heather v. Rider, 1 Atk. 426. Boughton v. Boughton, 2 Ves. 12. Arnold v. Kempstead, Ambler, 466. Villareal v. Lord Galway, Ibid. 682. Jones v. Collier, Ibid. 730. Newman v.
But where the intention of the testator is not manifest, and the devise or legacy is not repugnant to the wife’s right of dower, she has been decreed to take both.
As in the case of Lawrence v. Lawrence, 2 Vern. 365, where the testator devised some legacies out of his personal estate to his wife, and a part of his real estate to her during her widowhood, and devised the residue of his estate to trustees for twenty-one years, for payment of his debts, with remainder over to the plaintiff. In this case, although the lord chancellor held, that, in equity, this devise ought to be taken, as intended in lieu and satisfaction of dower, and that such intention might be collected from the will, yet his decree was afterwards reversed by lord keeper Wright, and that reversal was affirmed in the house of lords. 1 Eq. Cas. 219, c. 2. Harg. Co. Litt. 36, b. n. 1, 6. And the case of Forsight v. Grant, 1 Ves. jr. 298, seems to have been decided upon the same principle.
Therefore, in order to put a widow to the alternative of either waiving her interest under the will of her husband, or foregoing her right of dower in his lands, it must be clearly evinced, that, her taking both interests, will defeat the general intent of the devisor. Pow. Dev. 466, 7.
As, in the case of Incledon v. Northcote, 3 Atk. 430, where lord chancellor Hardwicke held the widow was entitled to her dower, as well as to the devises and legacies contained in the will; for, in that case, as he said, the widow’s claim did not, as in Noys v. Mordaunt, overturn the will, in toto, but was merely a temporary interest, and the estate would afterwards go as the testator intended it. And, in the case of Ayres v. Willis, 1 Ves. 230, bis lordship decreed upon the same principles, in favour of the widow. And the same principle seems to have been recognized by
From this last case, it appears, that it is not necessary that the testator should expressly declare his intention that the devise shall be in satisfaction of dower; but, that it is sufficient, if it appears by circumstances. And the cases of Jones v. Collier, Ambler, 732; Arnold v. Kempstead, Ibid. 466, and Villareal v. Lord Galway, Ibid. 682, have been decided upon this principle.
And the acceptance of a legacy or devise under a will, in satisfaction of dower, may, as well as a waiver, be either express, or implied; so as to bar the right of election, after.
As where one devised the third part of all his lands to his wife, in recompence of her dower, the testator being seized in fee of certain lands in soccage, and of other lands in tail, held in carite ; and she entered into the third part of the fee simple lands, without bringing her writ of dower: And it was said, that she, by entering into the third part, shewed her intention to have it by the devise; for, otherwise, she could not enter till assignment by the heir or sheriff. And held, she was barred of her dower thereby. Dyer, 220, cited 3 Bac. Ab. 225.
So, where the husband devised all his real and personal estate in trust, for his wife for life, provided she should not marry, and made her his executrix : the trustees not acting, she took possession; after receiving the rents and profits for five years, she was not allowed to elect a sum, under a marriage settlement; the estate being a free fund from the beginning ; and no suggestion that the real or personal estate was in such a situation as to render it doubtful, what the result would be. Butricke v. Broadhurst, 1 Ves. jr. 171, 336, in note.
But where an estate has been incumbered, or the testator’s affairs unsettled, or other circumstances rendered it doubtful what might be the result of an election, courts of equity have been less strict in their construction of such acts and circumstances, as may amount to implied acceptance, under
Thus where the testator, by his will, gave to his widow a legacy and an annuity, and made his son his residuary legatee ; the widow received the legacy, and also her annuity for three years, and then brought a bill, claiming both the interests under the will, and her dower; and it was objected, that she cannot abide by the will, having made her election, by receiving the legacy and annuity for so long a period; but Buller, judge, sitting for the lord chancellor, said that the point was, whether she had full knowledge of the circumstances of the testator, and of her own rights. If she had acted with full knowledge, she should not after deny it; and he decreed, that she might elect, and an account of the legacy and annuity was directed. Wake v. Wake, 1 Ves. jr. 335.
In Gibbons v. Count, lord Loughborough says, that no man can doubt, that the high court of chancery will never hold parties acting upon their rights (doubts arising as to those rights) to be' bound, unless they act with full knowledge of all the doubts and difficulties that arise, 4 Ves. jr. 849; otherwise, if full knowledge, &c. And, in Newman v. Newman, where the master of the rolls decreed that the widow must elect between taking under her husband’s will, not duly executed to pass lands, or under a settlement before marriage, yet he postponed the election, until an account should be taken of the personal estate. 1 Bro. Ch. Cas. 187.
In Hinder v. Rose, 3 P. Wms. 125, n. it is said that, in no case, under the custom of London, should a child be obliged to make an election, till after an account taken. So in Whistler v. Webster, 2 Ves. jr. 371.
And, in Pusey v. Desbouvrie, 3 P. Wms. 316, where a freeman of London bequeathed £10,000 to his daughter, upon condition that she should release her orphanage part, &c. And she, being then about twenty-four years of age, did release accordingly, and received the money. And although,
In Boynton v. Boynton, the master of the rolls declared that, as no account of the testator’s personal estate, and of his debts, &c. had been taken, the defendant, lady Boynton, was not obliged to make any election, until the account should be taken, and it should appear out of what real estates she was dowable, at the time of the testator’s decease. 1 Bro. Ch. Rep. 445. In this case, the defendant was executrix to her husband, and had proved the will, yet it did not bind her. And although lord Northington, Ambl. 533, held that the probat of the will by an executor, amounted to an election, and acceptance of the benefits under the will, yet the house of lords held otherwise. 5 Ves. jr. 484.
And when a testator has given to his wife that provision which he meant to be a satisfaction for any claim she might have against the other objects of his bounty, if by any accident those objects were unable to claim the benefit of that exclusion, it has been held that no other person can set it up against the widow.
And, therefore, where a testator gave to his wife real and personal estate in bar and satisfaction of dower, or thirds, &c., and gave the residue to four persons, and afterwards, by codicil, directed them to dispose thereof in charities, part of this residue being vested in real securities, the disposition of which to charitable uses was void by the statutes of mortmain, the master of the rolls held the widow was not barred of her distributable share of this surplus, by the devises in the will, Pickering v. Lord Stamford, 3 Ves. jr., 337, 338 : and this after the widow had accepted the provision for her in the will, and after thirty-five years had elapsed before the question, as to this part of the estate, was stirred. 3 Ves.
And, in none of these cases of election, does it seem to have been held material whether the estate devised was of equal value, or that the widow should have a certain, and indefeasible interest therein; or that the thing given, by the devise, was of the same nature, Pow. Dev. 449, 450. Streatfield v. Streatfield, Cas. T. Talbot, 176. Boynton v. Boynton, 1 Bro. C. C. 445; although a contrary doctrine, as to this last point, seems to have been held formerly, Eastwood v. Vincke, 2 P. Wms. 616.
It may possibly save time, if, before I proceed to consider the application of these principles and authorities, I should proceed,
Secondly, to say a few words concerning personal estate.
Although, by the old common law of England, it would appear, that a man could no more deprive his wife of her thirds (or pars rationabilis bonorum) of his personal estate, by his will, than he could of her dower in the lands whereof he died seized of an estate of inheritance, yet that law, partly by imperceptible degrees, and partly by different statutes, is now totally abolished throughout England ; and a man may, there, dispose of his personal estate as he pleases, by his will, and the claims of the widow, children and other relations, to the contrary, are totally barred. 2 Black. Com. 493. But our ancestors, in this country, have proceeded differently, and, from the year 1672, to the present time, the husband has been restrained from depriving his wife, by his will, of her share of his personal estate, without her own consent, express or implied : The act of 1672, ch. 1, Purvis.
Considering the acts of 1672, and 1705, as merely declaratory of the common law, which our ancestors brought with them, I have always inclined to consider the act of 1727, as an act of limitations only, which bars the remedy of the widow, after the time limited; but leaves the right as it stood before the passage of that act. The widow’s right to dower in lands, and to a distributable share of her husband’s estate, being not merely a right derived under a statute, but a moral right, 2 P. Wms. 634, 637; recognized and enforced by the common law, and founded upon the solid basis of reciprocal justice, (the husband, by the marriage, being invested with the whole of the wife’s personal property, of which the law, in case of his death, gives her back but a part,) she is surely as much entitled to the benefit of an equitable construction of this act, which bars her right, as a common creditor, whose debt, though barred by the act of limitations, has been held to be protected
The act of 1785, c. 61, (edi. 1794, c. 92, sect. 25,) extends the period within which the wife must make her renunciation, to one year, instead of nine months; and declares, that every widow, not making a declaration within that time, shall have no more of her husband’s slaves and personal estate than is given her by will. I can discover nothing, in this difference of phraseology, from that of 1727, c. 4, which is materially variant from the purview of that act.
Having traced the widow’s right, to her distributive share of her husband’s estate, to the common law, I was in hopes, that I should have found something in the cases arising under that law, or under the customs of York or London, which might have aided my judgment upon this subject. But I have not been able to collect any thing from that source, more than I have already noticed, that would seem applicable to the general question before us. The general principles and authorities, already cited, therefore, must guide me in considering the question of the widow’s right, both to the real and personal estate; except so far as the positive provisions of these latter acts, may deprive the widow of that equity, in respect of the personal estate, which has not yet been denied to her by statute, in respect to her right of dower in lands.
Cordall Norfleet, by his will, after devising to Cordall N. Bynum, 694 acres of land in North Carolina, and all the re
1. The first question, that arises upon the construction of this will is, whether, by these words of the will, the widow Mary Norfleet took any beneficial interest, whatever, in the .lands, or personal estate; or merely a naked trust, for the benefit of the testator’s children ? And it seems to me that she took no beneficial interest, whatever, under the will, but a naked trust. If the first part of the devise, which relates to lands, be construed into plain English, it stands thus: I give all my lands to Cordall Norfleet Bynum, and to my son John Norfleet, in fee simple. But until my son John Norfleet comes of age, I give the profits, thereof, to my wife Mary Norfleet for the benefit of all my children, provided she remains a widow: And whenever she shall marry, or my son John Norfleet arrives at age, she shall have the use only of the plantation whereon I now live, upon the like trust. Pow. Dev. 293. Carpenter v. Collins, Ibid. 290.
If Mary Norfleet had been any other than the widow of the testator, there could not possibly exist a doubt, that this
If it be contended, that the use of the home plantation must be intended to have been meant for her own benefit, and in lieu of her dower, I answer, that there is not a word in the will (except the words, dear wife) that shew the testator even remembered he had a wife, or that it was, at all, his duty to provide for her. On the contrary, it is manifest he intended she should have no part of his personal estate, in case of marrying, nor any beneficial interest, in it, in case she did not. For she was to take it, to make use of for. the benefit of her children, to them and their heirs forever. Stronger words of exclusion could not be used, as to the wife’s participating in any benefit. There is no rule to which I yield a more perfect assent, than that a judge in equity, is no more at liberty to raise inferences, than a court of law. 5 Ves. 805. And no rule of law is better known than this, that no devise, by implication, shall be raised in
If indeed she took a beneficial interest in the lands, (which I cannot conceive), I admit that the word only, in the latter part of the sentence, would enforce us to declare it was intended as in lieu and satisfaction of her dower. But under the construction, which I conceive it to be proper to make, I consider the word only as merely descriptive of that part of the lands which should still remain in the occupation of the widow, for the benefit of the testator’s children. And I agree most perfectly with the lord commissioner Ashurst, 1 Ves. jr. 561, that no case of election can exist, but where a person has a decided interest before, and something is left to him by the will. Here, nothing, or which is the same thing, no beneficial interest is left to the wife by this will. Both common law and our statutes are expressly in her favour; and equity surely will not take up arms against both. I hold, therefore, that she is well entitled to dower in all her husband’s lands, whether in this state, or elsewhere, for any thing contained in the will of the husband. But that she must account for the profits of all the lands, as far as the same have come to her hands, either in this state, or elsewhere, subject to a deduction of one third part, for her right of dower therein, until she gave up the possession thereof. But, inasmuch as a considerable part of the testator’s lands lie in North Carolina, and Cordall Norfleet Bynum, one of the devisees, is not a party to this suit, I conceive that no account should be required of the profits of
2dly. As to the personal estate.
In speaking of the construction of the will, as to real estate, I have had occasion to remark, that the testator manifestly intended to give her part of it, in case she should marry again, and no beneficial interest in it, in case she did not. If he had said in express terms, it is my intent and meaning that my wife shall not have the value of a farthing of my personal estate, and had then bequeathed the whole to his children, or any other object of his bounty, he could not, to my apprehension, more clearly have deprived her of every atom of it, than he has done, by this will, for any beneficial purpose, to herself. Wherever any person gives property, and points out the object, the property, and the way it shall go, it creates a trust, unless he clearly shews that his desire expressed is to be controlled by the party; and that he shall have an option to defeat it. 2 Ves.jr. 335. Here, is not the shadow of control, or option, left to the wife : All that is given her is -expressly declared to be for the benefit of the testator’s children, by name, and their heirs after them. There is then no provision for the wife; but a disherison in disguise. The widow might have been lulled into an idea, that there was a provision, out of both the real and personal estate, made for her. She may have acted, and probably did act under this delusion : She let the year of renunciation pass over, probably without dreaming that she was left forlorn, without house or home, or dower, or distributable portion. Is her case the only one, to which equity will not extend its relief? Is the law of renunciation the only rigid rule, in our code, which equity cannot soften ?
I am therefore of opinion with the chancellor, “ that the appellee, Mary Gee, by failure to renounce the benefit (if it were a benefit) bestowed upon her, by her former husband in his testament, was not barred of her dower in his lands, nor of her share of his goods,” including his slaves under that denomination. And I approve of the direction made, in pursuance of that opinion, except that the widow must account for the profits of the personal, as well as of the real estate, subject to a deduction of her own proportion, (or third part thereof,) so long as the same remained in her possession; and to a similar condition (if necessary) on the part of the appellants; that they submit the whole subject of the personal estate, wherever the same may be, within or without the state, and including the man slave given to Cordall N. Bynum, to the disposal of the commissioners directed to carry that direction into effect.
4. _The disposition of Sarah Jones’s lands; and
5. That Mary Gee is entitled to a share of John Nor-fleet’s real and personal estate. I shall notice the last first.
John Norfleet, having attained the age of twenty-one years, his whole estate, whether descended from his father, or purchased by him, or his guardian for him; and whether lands or personal estate, must be divided between his mother, brother, and sisters, whether of the whole or half blood, pursuant to the act of 1792, (edi. 1794, c. 93, sect. 4, 15.) The bill contradicts itself, stating, first, that John Norfleet died leaving a sister called Lavinia Norfleet Gee, of the half blood : but, afterwards, it states, that she was born after his decease. If this be the case, the estate being divided into seven parts, the mother is entitled to two : the appellant Elizabeth Blunt, and her deceased sister Jones, then in life, and of the whole blood to John Norfleet, each two; and the appellee William, Henry Gee, the brother of the half blood, to one part only; and Lavinia is wholly excluded.
As to the lands of John Norfleet, which descended to Sarah Jones, upon his death, it is worthy of observation, that John Norfleet, having attained his age of twenty-one years, his paternal lands, as well as his purchased lands, descended as just mentioned, to his mother and sisters, without regard to the parent from whom they were derived. That part which did descend to Sarah Jones, might, if she had then been dead, have gone in the same course, as the other, by immediate inheritance from him. Consequently, his mother, and brother and sister of the half blood, (if the latter were then born,) might have come in for their parts of it. Now, the descent to Sarah Jones, could not, I conceive, alter, or interrupt, that course. For it would seem absurd, as before remarked, to suppose the mother (and fraternal kindred of the half blood,) might inherit lands immediately
Although nothing of the kind has been suggested from the bar, either on this, or any other occasion, that I know of, where the husband and wife have come into a court of equity to obtain something in right of the wife, and which the husband could not obtain without joining her in the suit, yet I beg leave to submit to the court, the propriety of adopting, not only on this, but on all future occasions of the like nature, that most just rule of the courts of equity in England, that the husband, if there be no previous settlement, is bound, in conscience, to make a settlement upon his wife at least adequate to the fortune he may recover, in her right, through the aid of the court; and therefore the court of chancery shall not part with the property to him, unless he do make a proper settlement upon her; or unless she come into that court, and give her consent voluntarily, that he shall receive it. And I beg leave to refer to 1 Fonbl. Eq. 94, note k. Ibid. p. 99. Ibid. 316, note y. 2 Fonbl. Eq. 231, note c. 3 Ves. jr. 98, 469. 4 Ves. jr. 737, 744. 2 Ves. jr. 98, 469. 4 Ves. jr. 607, 680. 3 Ves. jr. 166, where the husband being a bankrupt, his assignees, suing for the property of the wife, were compelled to make a settlement, of part, upon her. And even where there was a settlement upon the wife, of her own bank stock, after marriage ; and the husband soon after became a bankrupt, this stock was decreed to his assignees, subject to a provision for his wife. Pringle v. Hodgson, 3 Ves. jr. 617. 5 Ves. jr. 517.
There is also another marginal note, which states that, judge Tucker haying delivered his opinion in conference as above, from which the majority of the judges dissented, as to the personal estate, he declined (merely to save time) delivering the said opinion in court.
Another note is added at the foot of the opinion, as follows : “ After a conference, and several conversations, between myself and the other judges, except judge Roane, who did not sit in the cause, judges Lyons, Carrington, and Fleming, concurred in the following decree, (see below,) that the appellee, by not renouncing the provision made for her by the will of her former husband Cordall Norfleet, and all benefit which she might claim by the same, within one year from the time of his death, is barred, by law, from claiming, or having more, or the use of more of his slaves and personal estate, than is given her by his will, but that she is not thereby barred from her dower in his lands. That she was, by the said will, entitled to the rents and profits of all the estate, real and personal, (except the land and slave devised to Cordall Norfleet Bynum,,) for the maintenance and education of the children of the said Cordall Norfleet, and for her own support, until his son John Norfleet attained his age of twenty-one years; or she should again marry, whichsoever should first happen, without account; and that the appellee James Gee, is entitled to an allowance for board and expenses, for such of the children of the said Cordall Norfleet, as have lived with him, from the time of his marriage with the widow, to be charged to them respectively; and decreed an account, subsequent to the marriage, Sic., and of administration also, on account of the administration of Sarah Jones’s estate, (dissentients Tucker.)
“ They concurred with me in opinion, as to the partition and division of John Norfleet’s estate, real and personal, as
“They likewise concurred with me in opinion, as to the partition of that part of his lands, which descended to his sister Sarah Jones, and decreed accordingly.”
He adds in a marginal note, “ N. B. Noel v. Garnett, (4 Call, 92,) was decided in like manner, October 1786;” and refers to 3 Bro. C. Rep. 349.
Although the opinion of judge Tucker, was not delivered in open court, yet the reporter has published it at large; because it contains almost all the doctrines upon subjects of that kind | and he thought it would be agreeable to the profession, to see on what points judge Tucker differed from the majority of the judges.]
delivered the opinion of the majority of the judges (that is to say, of himself, judge Carrington and judge Fleming), that the decree of the court of chancery should be reversed,, and the following decree made :
The court is of opinion that the appellee Mary, by her not having renounced the provision made for her by the will of her former husband Cordall Norfleet, and all benefit which she might claim by the same will, within one year from the time of the death of the said Cordall, is barred, by law, from claiming, or having, more, or the use of more of her said husband’s slaves and personal estate than is given her by his will; hut that she is not thereby barred from her dower in the lands whereof her said husband was seized during the coverture, according to the act relating to dower. That she was by the said will entitled to the rents and profits of all the estate real and personal of the said Cordall Norfleet (except the land and slave devised to Cordall N. Bynum), for the maintenance and education of the children of the said Cordall Norfleet, and for her own support during her widowhood only: And that the appellee James Gee is entitled to an allowance for board and expenses of the children of the said Cordall Norfleet, during
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So far, a majority concurred, but judge Tucker dissented.