| Mo. | Jan 15, 1857
delivered the opinion of the court.
By the act of 1792 all negro and mulatto slaves in all courts of judicature within the commonwealth of Yirginia were held, taken and adjudged to be personal estate. Slaves being personal estate, a gift of them might be made by parol. But no question was raised in the court below whether the admissions of the testator, Terrill, were not evidence of a gift of the slaves to his children.
One point relied on was that Terrill, by acting, as guardian ad litem for his children in the suit for partition of the slaves, in which suit the slaves in controversy were allotted to his children, is now estopped from controverting their title. If the plaintiffs had set up a gift by their parent, such conduct would have been strong evidence in support of such a claim. If Ter-rill had been a party to the proceeding and the judgment in partition had not been appealed from, he would have been concluded, however erroneous it might have been, for the matter would have passed in rem judicatum. But we know of no rule which makes an attorney or guardian ad litem to a suit a party in such sense as would render the judgment conclusive
The main point relied on by the plaintiffs is, that — as at the death of Francis Conner, the grandfather of the plaintiff, in 1784, slaves in Virginia were personal estate not descending like real estate — the title to and right to the possession of the dower slaves became vested in the administrator, who assigned them as dower to the widow, upon whose death they reverted to the administrator, who then distributed them according to the law then in force regulating the descent of real estate ; that reversions and remainders in slaves might be created by the act of the parties— but not by operation of law, wMch held the title and possession together; that therefore, in 1816, when the widow of Francis Conner died, the title to the dower slaves reverted to the administrator, who would then distribute them according to the law then in force regulating the descent of real estate; and that Mrs. Terrill, the daughter, having died before her mother, the tenant in dower of the slaves, the title and interest which would have vested in her, had she survived her mother, would, by law, be distributed among her children. We have said that slaves were made personal estate in Virginia by an act passed in 1792.
On this section the reviser remarks: ‘-‘•The former laws provided for the cases of reversions against widows bolding dower slaves. These sections, as amended at the late revisal, apply to all persons holding a life estate in slaves, and secure the rights of remaindermen as well as reversioners ; the former law declared a forfeiture of the whole dower interest.” The 50th section of the same act uses the words “ when one or more slaves shall descend,'” &c. This provision was enacted in 1790, a period after the death of Conner. These references abundantly show that in Virginia, in 1784, slaves did descend like real estate, and that by operation of law a reversionary interest was created in them. Conner dying in 1784 and his slaves descending like real estate, the title to them passed to his children, subject to the widow’s dower. That such was the law of Virginia is clear from the case of Park’s Adm’r v. Rucker (5 Leigh, 149). In that case, as in this, the intestate died prior to the aefc of 1792, which made slaves personal estate. The doweress to whom the slaves were assigned died in 1820. The court remarked, “ this is the case of the heirs at law claiming the dower slaves after the death of the doweress ; and this is a clear legal claim ; for, after the assignment of dower, the administrator had nothing to do with the dower slaves. The widow had a life estate in them ; they never afterwards devolved to the administrator or formed any part of the assets.” In a note to this case by the reporter, who was renowned for his
It is clear, then, that Mrs. Terrill, being an heir at law of Francis Conner, who died in 1784, had a reversionary interest in the dower slaves at the time of her marriage, and she dying before her husband and before her reversionary interest had vested in the actual possession, the doweress being still alive, the only remaining question to be determined is, whether, under such circumstances, her interest in the slaves belonged to her husband, or whether it became the property of her heirs at law, some of whom are plaintiffs in this suit.
It is to be observed that, from the view we have taken of this case, it is to be determined exclusively by the laws of the state of Yirginia. The parties were all citizens of that state when the facts transpired on which the determination of the controversy depends, and of course their rights must be ascertained and determined according to the laws of the place where the transactions -oecurred. Had the state of facts presented in this case arisen in Missouri our determination would have been different. In 1791, in the case of Dade v. Alexander, (1 Wash. 30,) it was declared that a feme sole being entitled to slaves in remainder or reversion, and afterwards marrying and dying before the determination of the particular estate, the right vests in the husband. The president stated that this was the constant decision of the old general court from the year 1653 to the revolution, and has since been confirmed in this court, in the cases of Snead v. Drummond, and Herd v. Upshaw; that it had become a fixed and settled rule of property. Judge Tucker, who wrote long subsequently to this transaction, says that such was the settled law of Yirginia at that day. (1 Tuck. Com. 331.)