ARGUED AND DETERMINED IN THE SUPREME COURT OF APPEALS OF VIRGINIA: At the term commencing the first of October, 1810. IN THE THIRTY-FIFTH YEAR OF THE COMMONWEALTH. JUDGES, WILLIAM FLEMING, ESQUIRE, President. ST. GEORGE TUCKER, ESQUIRE. ATTORNEY-GENERAL, PHILIP NORBORNE NICHOLAS, ESQUIRE. Templeman, Executor of Steptoe, against Steptoe Monday, and others. THIS was a suit originally brought in the late High Court of Chancery by James Steptoe and others, relations October 8. 1. A decree, dismissing so much of a bill as claims one of two sepa rate subjects in controversy, and as to the other, determining also the rights of the parties, but directing an account to be taken, is not final in any respect, between the parties retained in Court, and their legal representatives; but subject to revision and alteration in every part, at any time before a final decree; without the necessity of a bill of review. 2. Quære, in such case, whether any subsequent decree could affect the rights of bona fide purchasers of property as to which the bill was dismissed? 3. Construction of the 5th, 6th, and 7th sections of the act "to reduce into one the several acts directing the course of descents." Where an infant, having title to a real estate of inheritance derived by purchase or descent immediately from the father, dies without issue, and with no brother or sister, or descendant of either; the father being dead, but the mother living; the right of inheritance is not in abeyance, but goes in parcenary to the brothers and sisters of the father, or their lineal descendants: and, vice versa, such estate being derived immediately from the mother; and she being dead, but the father living; it goes in parcenary to her brothers and sisters, or their lineal descendants. 4. The law was the same as to personal estate, between the 1st of October, 1793, and the 22d of January, 1802. 1810. V. OCTOBER, (on the part of the father) of Edward Steptoe, an infant, (who died intestate, unmarried, and without issue, on the Templeman 24th of May, 1794,) against Elizabeth Steptoe, his mother, Steptoe. and William Steptoe, his paternal uncle; executrix and executor of George Steptoe, his father, for an account and division of certain property, real and personal, of which he the said Edward Steptoe died seised and possessed, as his absolute estate, derived immediately from his father. The great questions in dispute were, 1st. The same with that decided in Tomlinson v. Dilliard, 3 Call, 120. and ante, p. 183. viz. whether Elizabeth Steptoe, the mother, was excluded from succeeding to such personal as well as real estate; and, 2dly. If she was excluded, whether the plaintiffs and the defendant William Steptoe were entitled to take the said real and personal estate; there being no brother or sister of the infant, nor any descendant of either. The defendant, Elizabeth Steptoe, in her answer, observed, that "if she had a right to her son's estate, some of her near connections might be benefited by it;" but did not mention who they were; and nothing farther appears in the record to shew the names or degrees of consanguinity of her relations. The plaintiffs were James Steptoe, (a brother, of the whole blood, to George Steptoe, the father,) and the descendants of four sisters, of the half blood, to the said George Steptoe. The defendant, William Steptoe, was also a brother of the whole blood. The facts in the case were generally agreed by the parties; and, on the 17th of March, 1797, the cause came on to be heard; when the Court, "being of opinion that the plaintiffs were not entitled to any part of the slaves and personal estate" in question, "adjudged, ordered, and decreed, that the bill, as to the part thereof which claimed the said slaves and personal estate, and demanded an account of the administration thereof, be dismissed; but the Court was of opinion that, by the 5th, 6th, 7th, and 14th sections of the act to reduce into one the several acts directing the course of descents, the defendant Elizabeth was excluded from succession to the real estate;" and that the same descended 1810. V. to the plaintiffs and the defendant, William Steptoe, in cer- OCTOBER, tain proportions specified in the decree. Commissioners were therefore appointed to state accounts of the said real estate, Templeman and of the profits thereof since the death of the said Ed- Steptoe. ward Steptoe; to allot the same, according to the said proportions, (subject to the defendant Elizabeth's right of dower,) and to report the said accounts and allotments to the Court. After this, (the late High Court of Chancery having been divided by the act of January 23, 1802)(a) a bill (a) 1 Rev. was exhibited to the Superior Court of Chancery for the Code, p. 426. Williamsburg District, on behalf of the same plaintiffs and others omitted in the former bill, and of the widow and children of the former defendant, William Steptoe, (who now were plaintiffs,) setting forth the former proceedings in the original suit," which by this bill was sought to be revived," and stating that "before any further proceedings were had in the said cause, or upon the said interlocutory decree, the said Elizabeth Steptoe and William Șteptoe had both died, (the said Elizabeth between the 16th of April and 13th of February, in the year 1802, and the said William in April, 1803,) whereby the said suit and all proceedings thereon became abated;" that Samuel Templeman was executor of Elizabeth Steptoe, and, as such, had possessed himself of all the real and personal estate of which Edward Steptoe died seised and possessed, and that William Steptoe had died intestate. The plaintiffs had been advised that, "so long as a decree remains interlocutory it is amendable by the judge who pronounced it; and that the decree above mentioned was amendable by the present judge, to whom all the powers respecting it, which that judge had, were transferred by legislative authority. They had also been advised that, according to the true exposition of the acts of Assembly severally entitled, "An act to reduce into one the several acts directing the course of descents," and "An act reducing into one the several acts concerning wills, the distribution of intestates' estates, and the duty of executors and administrators,"(b) "the same were (b) 1 Rev. Code, p. 164. in opposition to that part of the said decree which tended to s, 27. 1810. V. Steptoe. OCTOBER, deprive them of the surplus of the slaves and personal estate late of Edward Steptoe aforesaid, deceased, which exceeded Templeman, the funeral expenses, the debts and all other just expenses chargeable on the said estate." They therefore prayed “the benefit of all the proceedings in the original suit, except the said interlocutory decree, which ought to be set aside, partly for error apparent on the face of it, and partly because the execution of certain parts of it had become impossible," that the said Samuel Templeman, “being in possession of all the books of accounts of the said Elizabeth Steptoe, should render an account of her administration of the estate of George Steptoe, and of her receipts and expenditures out of the estate of her infant son Edward Steptoe, derived to him from the said George, together with the receipts and expenditures of the said Samuel out of the said estates, since they came into his hands; and the amount and particulars of which they severally consist; and that a writ of subpana, to re; vive and answer, be directed to the said Samuel Templeman, executor as aforesaid," &c. To so much of this bill as claimed the slaves and other personal estate, the defendant pleaded, in bar, the decree of March 17th, 1797, which, as to those subjects, he contended was final; alleging that he "was proceeding to execute the provisions contained in the will of his testatrix, when he was arrested by a notice of the complainants' claim, very unexpectedly; for, from the length of time which had elapsed since the said final decree, he had thought that the complainants, perceiving the weakness of their title, had acquiesced in the decision, and no longer insisted on their right to the said slaves and personal estate: since that period this defendant had hired out the slaves whereof his testatrix was seised at the time of her death, and was ready to give an account of the same, and of their hires, if the Court should so decree." As to the other matters, he answered, and said that the Commissioners had assigned "to the said Elizabeth Steptoe her dower in the real estate of inheritance whereof Edward Steptoe, her infant son, was seised at the 1810. time of his death, and to which she became entitled at the OCTOBER, death of her husband George Steptoe, but had not proceeded to state an account of all the said real estate, or to allot the Templeman same to the parties mentioned in the decree, agreeably to Steptoe. the proportions therein established; because the parties entitled to the said real estate of inheritance were most of them infants, and had no representatives known to the Commissioners; and because other difficulties afterwards occurred, (such as the death of some of the Commissioners,) neither did the said Commissioners settle and adjust an account (as they were directed in the said decree) of the profits of the real estate since the death of the said Edward Steptoe, be cause, upon investigation, they found that no profits accrued therefrom; that, after the allotment of her dower, the said Elizabeth Steptoe had nothing to do with the residue of the said real estate, but it remained subject to the disposal of the parties entitled thereto; and that the defendant had never interfered with, nor received any profits of, the real estate of which Edward Steptoe died seised." The plaintiffs filed a special replication to the plea of the defendant; in which they deny that the decree of March, 1797, was final in any respect; especially because "it could not have been signed and enrolled agreeably to the language formerly spoken in Courts of Equity, and did not authorize the clerk of that Court to enter all the pleadings in the suit and other matters relating thereto, together, in a book to be kept for that purpose, according to the act of Assembly, in that case made and provided, entitled "An act reducing into one the several acts concerning the High Court of Chancery."(a) (a) 1 Rev. Code, p. 67. s On the 8th of November, 1805, "the cause came on to be 49. heard on the bill, supplementary bill, the answer of Eliza beth Steptoe and William Steptoe, in their life-times, the plea and answer of the present defendant, the replication thereto, the exhibits, and was argued by counsel; on consideration whereof, the Court overruled the said plea, and was of opinion that all the real and personal estates of Edward |