Welch's Heirs v. Welch's Adm'r

DARGAN, J. It is unnecessary to examine, whether the deed of 1815, has any influence on the property; or whether Elizabeth Cunningham was entitled under the deed, or the will, to the property bequeathed by the will; for whether she could claim under the will, or the deed, at her option, her rights are precisely the same. We might be inclined to hold, that her title is derived from the will, and the character and extent of that title limited by the deed, as referred to by the will; but it is unnecessary to examine any other question than the single one, had Mrs. Cunningham a separate estate in the property, under either instrument, upon which the marital rights of her husband would- not attach ? And it is very clear that she had no such separate estate ; for admitting the property could be said to be vested in the trustees, in trust for Mrs. Cunningham, without further words, showing that it was for her separate use, the marital rights of the husband would attach upon it, and a delivery, or payment to the husband, would discharge the administrator. In the case of Lumb v. Milne, 5 Vesey’s Rep. 521, it was held, that the mere fact of vesting an estate in trustees, in trust for the benefit of the wife, did not create in her favor a separate estate; and in the case of Lamb v. Wragg and Stewart, 8 Porter, 76, this court, after a review of many of the authorities on this question, affirmed the doctrine of the [82] case from 5 Yesey, and held, that a deed conveying slaves to a husband as trustee in trust for his wife, did not give the wife a separate estate. It may be laid down as the correct rule of law, that the conveyance of personal property to a feme, whether sole or covert, or whether direct to her, or through the intervention of trustees, in trust for her, will not create in her favor a separate estate, on which the marital rights will not attach. But in order to create a separate estate in her favor, to which the husband by virtue of his marriage will acquire no rights, the conveyance must clearly show, that such was the intention of the grantor, donor, or testator. In this case no such intention is shown, neither in the deed of 1815, nor in the will; therefore, the delivery of the property to Joseph Cunningham, the husband of Elizabeth, in her lifetime, was a good payment of the legacy bequeathed to her, and he was entitled to receive her share of the residuum, if paid during her life, unless he had been restrained for the purpose of making a provision in her favor. 2. The next question arises from the clause of the will, by which the testator attempted to liberate four slaves, Flora, John, Julia, and her child. The testator expressed a strong desire to free them from bondage, and requested his executors to have them set free, as soon as it could be done. It appears that the administrators applied to the legislature to have them liberated, but the legislature refused to do it. The administrators did not take possession of them as assets, or a portion of the estate, but by an agreement between the administrators, who were the husbands of two of the distribu-tees, and the husbands of the other distributees. These four slaves were permitted to go at large, and the administrators exercised no control over them. John, one of the slaves, is gone to Arkansas. After several years, the administrators and the distributees divided the others, with their increase, as slaves, and one was allotted to Joseph Cunningham, the husband of Elizabeth, but she was then dead, and no one has administered on her estate. Although the testator expressed a strong desire, that the four slaves named in his will, should be liberated from bondage, yet it is well settled, that they were incapable of receiving their liberty by way of a legacy, or bequest, and as they [83] have not been liberated, they are still slaves, and are a portion of the testator’s estate. See the case of Carroll and wife v. Brumby, administrator of Wallace, at this term. But as no disposition of them was made by the terms of the will, they are liable to be administered according to law, and consequently to be distributed amongst the distributees of the testator, and hence it is necessary to ascertain if they have been so administered. After the death of Mrs. Cunningham, the distributees divided the slaves (except John, who had gone to Arkansas) amongst themselves, and in this act of division, the administrators participated, in right of their wives; but the share, or proportion, to which Mrs. Cunningham was entitled, was permitted to be received by Joseph Cunningham, after her death. Was he entitled, as her husband, after the death of his wife, to receive her proportion of these slaves ? This question has been settled by the repeated decisions of this court. In the case of Bibb v. McKinley & Hopkins, 9 Port. 636, this court held, that a husband, as such, could not maintain a bill in equity, after the death of his wife, to recover an undivided portion of her father’s estate, bequeathed jointly to several legatees; because her rights under her father’s will, was a mere chose in action, and were not reduced to possession during the coverture. So in the case of Clopton v. Mayfield, 3 Stew. Rep. 376, the same rule is affirmed, and it is laid down as the law, that to entitle the husband to., the choses in action of his wife, they fnust be reduced to possession during the coverture. The right, then, of Mrs. Cunningham to her share in the distribution of the four slaves, with their increase, not having been reduced to possession by the husband during the coverture, remained at her death a mere chose in action, and the only person entitled to recover it, is her administrator. Neither her husband, or next of kin, without administration, can demand it, therefore the administrators have not fully administered, at least to the extent of-her interest in those slaves. But it is contended, that the assent, or agreement of Cunningham, in the lifetime of his wife, that said slaves should not be treated as assets, discharges the administrators from all liability as to them. That could not be so, for this agreement was, or must have been [84] canceled, when the administrators and Cunningham divided Julia and her children amongst themselves as slaves. But this agreement, which appears to be a mere parol agreement, that these slaves should not be considered as a portion of the estate, cannot operate as an assignment of the wife’s interest in them. The slaves could not take the benefit of this agreement under our law, and consequently they still continued slaves subject to the administrators, and liable to distribution, and which have never been administered. The orphans’ court, therefore, erred in rendering a decree of final settlement, and discharging the administrators, for the legal representative of Mrs. Cunningham was not before the court, nor has the share of Mrs. Cunningham in those slaves bqen administered. The decree is therefore reversed, and the cause remanded. Chilton, J.,'not sitting.