Taliaferro v. Taliaferro , 8 Va. 93 ( 1786 )

The court was of opinion that whether the delay with respect to the probate of the will was fraudulent or not, was unimportant; for, in either case, Kemp and Mildred Taliaferro were equally unapprized of their rights. Yet, as Strother the husband of Mildred had notice, and might by consulting the records of Essex court have obtained full information, he could not allege mistake; and, as he had power to sell his wife’s claim to personalty, the sale, as to her share, was effectual: but, as he had no authority to sell that of Kemp, who was then a minor, and had not notice of the circumstances until the final probate of the will in 1745, and had done nothing to confirm the sale, the same was void as to him, and the plaintiffs entitled to his moiety upon payment of the £ 40, with interest as offered in his bill. And the following was the decree which was entered :

“ The court, having maturely considered the transcript of the record, and the arguments of counsel in this cause, are of opinion, that so much of the said decree, as dismissed the bills of the plaintiffs Mary Taliaferro and Harry Taliaferro, ought to be reversed and annulled; and, proceeding to give such decree as the said date general court ought to have given, do decree and order, that the plaintiffs Mary Taliaferro and Harry Taliaferro do recover of the defendants one moiety of the slaves mentioned in the answers of the defendants, together with their increase and profits since the year 1726, including the profits of those who are dead, down to the times of their respective deaths, if any such there be, to be ascertained and adjusted, either by commissioners, who shall make a reasonable allowance for the raising and maintaining children, and supporting those which were unprofitable, or by a trial at law, as the high court of chancery shall think fit to direct, and also their costs by them expended, as well in the said late general court as in the prosecution of their appeal here; and that the residue of the said decree, as to the plaintiff Mildred Strother, be affirmed. All which is ordered to be certified to the said high court of chancery.”