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Wickham requested leave to make a few additional ob- OCTOBER, servations. If the plaintiffs had brought separate suits for the real and personal estates, the decree as to the personal Templeman would have been final. If their coupling both in one bill Steptoe. makes it otherwise, it follows that the plaintiff has it in his power to oust the Court of Appeals of jurisdiction, at his own discretion, by the manner of bringing the suit: a conclusion too monstrous to be tolerated.

As to the inheritance, the case of Dilliard v. Tomlinson(a) (a) Ante, p. shews that the words of the act, when plain, are binding, and construction is not admissible against them. Therefore, here, as the words only exclude the mother, and do not say to whom the estate is to go, the Court cannot supply a disposal of the estate. As to the personal property, (the law not providing,) the mother, as administratrix, is in possession, and the plaintiffs have no claim upon her; like the case of a husband administering on his wife's estate, who is not to be called upon for distribution.(b)

Wednesday, October 24. The Judges pronounced their opinions.

Judge TUCKER. This is a case arising upon the construction of our law of descents, and of distribution of personal estate; where an infant of the age of thirteen years died possessed of real and personal estate derived from his father; leaving a mother, (and other relations on the mother's side, as it would seem,) but no brother, or sister, whatever, nor any descendant from them.

A preliminary question, however, arises from the following circumstances. The infant, Edward Steptoe, died in May, 1794. His mother administered upon his estate, and entered into possession of the whole, both real and personal. A part of the present plaintiffs, uncles and aunts on the part of the father, or descendants from them, brought their bill against the mother for a division of the estate, claiming the WHOLE. In her answer she states, that she had been ad

(b) 1 Rev. Code, p. 164. c. 92. s. 27.

OCTOBER, vised she had a right to her son's personal estate; nda, 1810. if so, some of her near connections may be benefited by it:

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Templeman which seems to shew she had near relations who were no parSteptoe. ties to the suit. On the 17th of March, 1797, Mr. Wythe, then Judge of the High Court of Chancery, pronounced his decree, whereby he decided that the complainants had no right to the slaves, or personal estate, and dismissed the bill as to the part thereof which claimed the same, and demanded an account of the administration thereof. But, being of opinion that the complainants were entitled to the lands, he directed partition thereof to be made among them in certain proportions, and appointed Commissioners to state an account thereof, and to settle and adjust an account of the profits, since the death of the infant Edward Steptoe, to be reported to the Court. But, before any farther proceedings were had, Elizabeth Steptoe, the mother, died, having made a will, and appointed the appellant, Templeman, her executor; and William Steptoe, another defendant, having also died, the suit abated as to both those original parties.

After the division of the High Court of Chancery into Districts, (the act for which passed in January, 1802,) the present complainants filed a bill (the date of filing which does not appear) in the Williamsburg Chancery District Court; in which they speak of the former decree as interlocutory, and still amendable by the Court, and therefore pray that they may have the benefit of all the proceedings in the original suit, except the said interlocutory decree, which, as they are advised, ought to be set aside, partly for error apparent on the face of it, and partly because the execution of certain parts of it has become impossible; and pray process of subpiena to revive and answer against the appellant Templeman, as executor of Elizabeth Steptoe. One of the suggestions in this bill, which states that William Steptoe died in April, 1803, shews that the filing of the bill was after that period, so that more than six years elapsed

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between the time of pronouncing the first decree, and the OCTOBER, preferring the present bill.

To this bill Templeman, the executor of the mother, after disclaiming any connection with the real estate, pleads the decree of March, 1797, as a final decree in bar of the claim to the slaves and personal estate, and account of their hires, since the death of his testatrix, or of the administration of his testatrix on the personal estate of her husband, George Steptoe, deceased, &c.; and insists on the length of time, and acquiescence of the plaintiffs under that decree.

The replication to that plea denies that the decree of March, 1797, was final, in any respect, but says nothing of the lapse of time or acquiescence under the decree.

In November, 1805, the cause was heard before the Chancellor of the Williamsburg District, who pronounced a decree overruling the defendant's plea, and declaring that, neither the mother, though alive at the death of her son, nor any relations on her part, were entitled to any share or proportion of the infant's estate, real or personal, and directing that the whole should be distributed among the complainants, as heirs on the part of the father, in the several proportions therein mentioned, together with an account, &c. in order to a final decree.

From this decree the defendant Templeman prayed, and obtained an appeal to this Court, by virtue of the act of 1797, c. 5. authorizing the High Court of Chancery, in its discretion, to grant appeals from interlocutory decrees. Before which period no appeal could be granted until a final decree.

The counsel for the appellees contend, that the original bill having been dismissed, as to the personal estate, by the decree of March, 1797, that decree was final as to that matter; and that the plaintiffs were barred by length of time from filing a bill of review.

If the premises be correct, I think the conclusion must be
For the utmost period within which an appeal from

so too.

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Templeman
Steptoe.

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Steptoe. (a) 3 H & M. 199-217.

OCTOBER, a Superior Court of Chancery to this Court lies, seems to be three years, as was fully discussed in the cases of TomTempleman linson v. Dilliard, and Mackey v. Bell.(a) By analogy, then, I should suppose that a bill of review would not lie after that period. For that would be granting more power to the Judge of the same Court to reverse the decrees (pronounced by his predecessor perhaps) than the law vests in this Court. Instead of resorting to the period assigned to writs of error at common law, I think it far more reasonable that the period which the law has assigned to appeals from the Courts of Chancery be adopted as that which bars a bill of review. In England the statutory law is silent as to appeals from the High Court of Chancery. Therefore, the analogy to writs of error at common law was adopted. But our law having assigned a period within which appeals in Chancery must be brought, that period appears to me the proper standard by which the granting of bills of review should be governed. It is unnecessary, I conceive, to consider how far the saving in favour of infants might operate: the analogy must be observed throughout; and, if any of the parties were infants, their case is provided for.

But the counsel for the appellants insist that the decree was not final, but merely interlocutory, and therefore still in the breast of the Court. The inconveniences of such a

construction were most ably commented upon, and illustrated by the opposite counsel. They are such as, in my opinion, to deserve not only the attention of the Courts, but of the Legislature. That a decree of dismission, which in its nature seems conclusively to determine every question of right, after being acquiesced in for six years, should be liable to be set aside by the successor of the Judge who pronounced it, and thereby affect, perhaps, the rights of bona fide purchasers for a valuable consideration, actually paid, upon the principle that they were purchasers pendente lite, seems so far repugnant to every idea that I have of justice, or equity, that I cannot well imagine a case that would call more loudly for legislative aid and protection, if the offended

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dignity of Courts should pronounce against the claim of OCTOBER, such bona fide purchaser. But that case is not before us, and I hope never will be, though not unlikely to happen Templeman very frequently, it the practice be permitted to prevail; Steptoe. which it certainly ought not, so as to affect others, now that the law allows appeals from interlocutory decrees. In the present case, however, as the law stood at the time the decree was pronounced, no appeal lay; for, however cogent the arguments to the contrary appear in my eyes, I am constrained by former precedents to say that the decree of March, 1797, was not a final decree between the parties, all of whom were still retained in court, although the bill, as to

a part of the subject claimed, was dismissed. (a) The suc- (a) Grymes v. Pendleton, 1 ceeding bill is, therefore, to be taken as a bill of revivor and Call, 54. supplement, by which the cause was brought regularly before the Judge who pronounced the second decree.

By that decree, as I have already noticed, the Chancellor decided that, neither the mother of the infant, nor any relations of the infant, on the part of the mother, were entitled to any portion of his estate, real or personal.

That decision, so far as it respects the mother herself, or any of her descendants, other than children by the father of the infant, or their descendants, appears to me to be perfectly correct. But I differ with the Chancellor so far as respects the father or mother of the mother, or any of her collateral relations, all of whom, in the events which have happened, appear to me (if in being at the time of the infant's death) to be entitled to a portion of his estate, real and personal.

The following principles appear to me not to require any argument, or authority, in support of them.

1. That the laws of descent, or rules of succession ab intestato, to property real of personal are merely creatures juris positivi.

2. That, by the act of 1785, c. 60. all former rules and canons of inheritance and succession to estates real and personal within this Commonwealth, whether established by