#### ALEXANDER LITTLE, Executor, *against*JOHN G. McLENDON AND OTHERS.

An estate in slaves, limited by wiH to the sole and separate use of a feme covert without any express limitation over to another, devolves, after her death, upon her husband, *jure mariii.*

Cause removed from the Court of Equity of Anson county.

Christopher McKae made his will, and died in 1837, leaving the plaintiff, Alexander Little, his executor, who qualified.— Among many other bequests, the testator gave certain slaves to his daughter Margaret, wife of Allen Teal, and others to his daughte Isabella, wife of William Teal. Both these daugh*217ters died subsequently to the testator, leaving their husbands and several children, each surviving, and administration was taken upon their estates. The bill is filed by the executor of Christopher McRae, praying to be instructed as to the manner of paying the legacies under the will, and particularly to whom he shall pay over the shares of Margaret and Isabella. He sets forth certain clauses of the will, from which it appears to the executor doubtful whether the shares of the two daughters are given to their sole and separate use, and if so, he asks to be informed upon whom their interests devolve. Whether upon their administrators, or their children, or upon their husbands. All these are made parties to the bill, and they insist on the construction favoring their several interests. As, in the view taken of the case, by this Court, the question whether the wives took separate estates is not material to the solution of the main question presented, it is deemed unnecessary to recite the terms of the will, out of which it is supposed to arise, further than to state that there is no ulterior disposition of the shares of Margaret and Isabella, after their deaths.

*Winston, Sr.,*for the plaintiff.

*Ashe,*for the defendants.

Battle, J.

The only questions which the counsel for the plaintiff, in his argument before us, lias presented for our consideration, and upon which he has asked for a decision, are, whether under the fifth clause of the will of the testator, Christopher McRae, the femes covert therein named, took estates to their sole and separate use, and if they did, whether, upon their deaths the slaves therein given, belonged to their surviving husbands, to their administrators, or to their.children. . The counsel contends—

1. That the wives took separate estates in the slaves, and secondly, that upon their deaths, they went to their children.

We deem it 'entirely unnecessary to decide the first question, for, supposing that the wives did take estates in the slaves, to their sole and separate use, yet, upon their deaths, *218the slaves passed immediately to Mieir husbands. This is so clearly established by the .authorities, that no argument is required in favor of it. See McQueen on Husband and Wife 66; Law Lib. 82; also Smith on Real and Personal Property 89; Law Lib. 578, and the cases therein cited and reded upon. The reason of the rule is, that the separate estate of the wife is protected from her husband, and from iiis assignees and creditors for her benefit during the coverture only, and that up upon her death, such protection being no longer necessary, the property devolves upon the husband immediately *jure*mariti, unless it be expressly limited over to her children, or to some other person. If, indeed, the separate property consists of dioses in action, then upon the death of the wife, the husband, or some person for him, will be obliged to. take out letters of administration upon her estate, in order to-reduce them into possession. In the present ease, it will be declared that the slaves given to the plaintiff under the fifth clause of the will of the testator, in trust for the femes covert legatees therein named, now belong to the husbands respectively of those who have died, whether they were given to the sole and separate use'of the said femes covert or not.— We suppose that an account of the estate of the testator must be stated, and we presume the- above declaration will enable the parties to settle without further difficulty.

Pek CURIAM, Decree accordingly.