White v. White
| Citation | 57 Va. 264 |
| Court | Supreme Court of Virginia |
| Decision Date | 23 April 1861 |
| Parties | WHITE v. WHITE & als. |
(Absent ALLEN P.)
1. Unless it is impossible to assign to a widow her dower in real estate in specie, a court of equity has no power, under its general jurisdiction, against her will, to decree a sale of the real estate and to provide her a compensation in money in lieu of her dower
2. A widow entitled to dower in the real estate of her deceased husband, is neither a joint-tenant, tenant in common or coparcener with the heirs at law, within the meaning of the statute concerning partition, Code, ch. 124, p. 526, so as to authorize a court of equity to sell the whole estate, against her will, and compel her to receive a monied compensation out of the proceeds, in lieu of her dower.
3. In decreeing a sale at the suit of the heirs of a decedent's estate real and personal, except the widow's share of the slaves, the court should protect and secure to her her interest in the proceeds of the sale of the other personal property.
4. A conveyance of slaves in trust for S for her life, and after her death to B and the heirs of her body forever. But should B die without heir or heirs of her body, in that case to C. The conveyance does not give B a separate estate; but upon her marriage and the husband's possession of the slaves the right of B in the slaves is vested in him.
Edmund P. White, of the county of Caroline, died about the year 1856, leaving a widow and four infant children, and possessed of a large real estate of eleven hundred and fifty acres some forty slaves, and stock, farming implements, & c suitable for such an estate, bank stock, & c. Woodson Wright qualified as administrator upon the estate, and acted as such until his health failed, and he was succeeded by P L. Marye. Mrs. White qualified as guardian of her children, and acted as such for the eldest of them, John B. White, until he came of age in 1860. She was removed from the guardianship of the others, of two of whom William S. Barton became the guardian, and Charles Herndon became the guardian of the other.
In August 1860 John B. White filed his bill in the Circuit court of Caroline county, in which he states that Mrs. White is entitled to dower in the real estate of her late husband, and that the children are each entitled to a fourth thereof. That though the estate is a large one, yet from its peculiar position dower cannot be allotted to the widow, nor partition made among the children without great injury to the parties; and that their interest will be promoted by a sale of the entire subject, and the assignment of dower and distribution of the proceeds of sale according to the rights of the parties.
He further states that an equal division of the slaves in kind according to the rights of the parties cannot be made, and that for other causes, a sale of the slaves should be made and the proceeds of sale divided. But if the court should be of opinion that Mrs. White is entitled to have her third in kind, he asks that this third may be assigned to her; and the other two-thirds sold, and the proceeds of sale distributed.
The guardians of the infant defendants were appointed guardians ad litem to defend them in this suit; and they filed answers concurring in the opinion expressed in the bill, that partition of the real estate could not be conveniently made and that the interest of the parties would be promoted by a sale. And they also concur in the opinion that a sale of the slaves would be for the interest of the infants. They also state that among the slaves to be sold or divided are three named Billy, Jim and Carter, the offspring of a woman named Nancy, which are claimed by Mrs. White as her separate property, by gift by deed from her brother Lawrence Battaile, Jr.; but which they insist became the property of her husband upon her marriage with him. This deed is filed with the answers; and by it Lawrence Battaile, Jr., in...
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