1961. April Term. White V. White & als. 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 March, 1827, conveys to trustees Nancy and her two children, John and George, and her future increase, in trust for the benefit of his mother, Ann Hay Battaile, for her life, and after her death to " Ann Champ Battaile [Mrs. White] and the heirs of her body forever. But should the said Ann Champ Battaile die without heir or heirs of her body, in that case" he gives the said slaves and the increase of Nancy to his niece, Sarah Robinson Battaile; with a further limitation over upon the death of the latter without heir or heirs of her body. Mrs. White demurred to the bill, for want of equity; and answered, claiming her dower in the land and her one-third of the slaves, in kind; and objected to a decree for the sale of either. A number of witnesses were examined as to the difficulty of assigning the widow her dower in the land, and dividing the remainder among the heirs; all of whom expressed a very decided opinion that such assignment and partition of the land would be very injurious to the parties; and they state the grounds of their opinion. They also express the opinion that it would be for the interest of the infants that the slaves should be sold. The cause came on to be heard in September, 1860, when the court, overruling the demurrer of Mrs. White, and being of opinion, from the evidence, that partition of the real estate could not be conveniently made in kind without a serious diminution in its value, and that the interest of the parties interested would be promoted by a sale, appointed commissioners to sell the land. And not deciding for the present whether the limitation over of the slave Nancy and her increase, upon the death of Mrs. White without issue, was void or not, the court appointed other commissioners to allot to Mrs. White one-third of the slaves in value of which her husband died possessed, if such partition could be made. And the cause was removed to the Circuit court of Spotsylvania county. The commissioners appointed to assign to Mrs. White her share of the slaves made their report; from which it appeared that they had assigned to her two of the descendants of Nancy. And in October, 1860, the cause came on again to be heard, when the court confirmed the report; and it appearing to the court that the limitation over of the slaves Billy and Carter, descendants of Nancy, allotted to the widow, cannot possibly take effect until after the death of the widow, and declining to decide whether the said limitation is valid or not, the commissioners thereinafter appointed to sell the slaves remaining after the allotment of her third to the widow, were directed to invest the proceeds of the sale of the slave Jim in Virginia State stock, to await the further order of the court. And commissioners were appointed and directed to sell the slaves remaining, which were owned by the plaintiff and the infant defendants in common, and the perishable estate, either at public or private sale, as they should think best; and after paying the expenses of said sale and the costs of the suit, to pay over the net proceeds to the complainant and the guardians of the infants, one-fourth to each of the infants. From this decree in the cause Mrs. White applied to this court for an appeal, which was allowed. R. T. Daniel, for the appellant. LEE, J. delivered the opinion of the court: The court is of opinion that as it is not made to ap 1861. April Term. White V. White & als. 1861. April Term. White V. White & als. pear that it was impossible to assign to the appellant her dower of and in the real estate of her husband, it was not competent for the court of equity, in the exercise of its general power, to decree a sale of the whole property, and to provide a compensation in money to the appellant in lieu of her dower, against her will and without her consent, however much it might be to the interest of the heirs at law of the decedent to have a sale of the whole estate and a monied compensation allowed to the appellant, instead of a sale of twothirds of the estate and the remainder in the life estate of the widow. And the court is further of opinion, that a widow entitled to dower in the estate of her deceased husband is neither a joint tenant, co-parcener, nor tenant in common with the heirs at law, within the meaning of the statute concerning partition, in the Code of Virginia; and that therefore no power is conferred by that statute upon the court of equity to sell the whole estate against her will and without her consent, and compel her to receive a monied compensation out of the proceeds in lieu of her dower. And the court is further of opinion, that whether the limitation in the deed of the said Lawrence Battaile, Jr., of the 19th of March, 1827, was a good executory limitation over, or the contrary, (as to which the court deems it unnecessary to express any opinion,) yet that the said deed did not create a separate estate for the sole and exclusive use of the appellant; but that the marital rights of her husband attached upon such interest as she took under the said deed, and that such interest should be disposed of as the other personal estate of the said Edmund P. White, deceased. And the court is further of opinion, that if there was other perishable personal estate of the said Edmund P. White, besides the said slaves, as seems to be contem plated by the said decree, the failure of the appellant to make any express claims to the same did not bar her right to an interest therein; and that the Circuit court should have respected her right to a distributable share thereof, and not directed the whole proceeds of the sale of the same to be paid over to the children of the said Edmund P. White, deceased, to her exclusion. Thus the court is of opinion that the said decrees are erroneous. Therefore reversed with costs, and cause remanded, with directions to proceed in the same according to the principles herein before declared, and further as justice and equity shall require. Which is ordered to be certified, &c. DECREES REVERSED. 1861. April Term. White V. White & als. 1861. April Term. Richmond. WEST V. FERGUSON & als. April 23d. 1. In cases of contested elections before the County court, under the act of April 22, 1852, ch. 71, p. 64, 65, the County court has no authority to give a judgment for costs to either party. 2. If in such a case the County court does give a judgment for costs to either party, a writ of prohibition from the Circuit court is a proper proceeding to arrest the judgment. In June, 1856, Henry A. K. Ferguson and others filed their petition in the County court of Halifax county, contesting the election of James R. West as sheriff of the county. The proceeding was in form according to the act of April 22, 1852, ch. 71; and West having appeared to maintain his election, the case was heard by the County court at its August term, when the court adjudged and declared that West was duly elected sheriff of the county of Halifax for the term prescribed by law, to commence on the first of the next January; and then proceeded to render a judgment against the petitioners for the defendant's costs. The petitioners thereupon ap. plied to the judge of the Circuit court of Halifax for a writ of prohibition to stay the enforcement of the judg ment for costs. Upon this petition a rule was made directing West and the County court to show cause why the writ of prohibition should not be awarded. And at the October term of the court the case came on to be heard, when the court made the rule absolute, and prohibited the defendant West from further proceedings to enforce the judgment for costs against the petitioners. |