#### Peter H. Larey, and Wife, *vs.*W. B. Beazley, et al.

Where a wife has an *expectant*interest in chattels, no act of the husband, or of any third person, in vesting' the husband, or the wife, or both, with the present, or particular estate, will operate to vest the future or expectant interest of the wife in the husband ; 'and it makes no difference whether such future or expectant interest is vested or contingent, legal or equitable. The husband can only acquire the expectant interest of the wife by application to the Court.

D. 0., executed a deed, by which, in consideration of natural love and affection, he conveyed to his daughter, M. L., a minor, certain negroes, with a proviso that he be permitted to use and enjoy, during life, the ’ labor, profits and emoluments of said negroes. M. L , shortly after-wards married, and then after giving birth to a child died — her father D. 0., surviving her. Before M. L’s., death the negroes went into her husband’s possession by consent of D. 0., and remained in his possession until D. 0., died, when the child filed a bill against the husband claiming partition *:*— -Held,

That, under the deed, M. L’s. interest was in remainder after a life estate in D. C.

That notwithstanding any surrender of his life estate by 1). C., during the coverture, the marital right of her husband did not attach on M. L’s. expectant interest, and consequently that the negroes were liable to partition as the estate of M. L.

BEFORE JOHNSTON, OH., AT BARNWELL, SPRING SITTINGS, 1856.

Johnston, Ch. The defendant,' W. B. Beazley, married Mary L. Calhoun, the daughter of Downes Calhoun, and the plaintiff) Mrs. Larey, is the sole issue of that marriage. The main part of this suit arises from a deed executed by Downes Calhoun, the 3rd of April, 1833, in the following terms :

“I, Downes Calhoun,” * * * “in consideration of the natural love and affection which I have and bear to my daughter, Mary L. Calhoun, a minor, now residing and being *120with me,- and for and towards the better support and maintenance of her, after my decease, and for divers canses and considerations, have given, granted, bargained, sold and confirmed, and by these presents do give, grant, bargain, sell and confirm unto the said Mary L. Calhoun, the following negroes, viz: Sylvia, a negro woman about twenty years of age; Benjamin, a boy about five or six years of age; Lewis a boy about three years of age; and John, a male child, about eight months *old-*— to *have and to hold,*the said negroes, Sylvia, Benjamin, Lewis, and John, and also the future issue and increase of the said negro woman, Sylvia, unto my said daughter, Mary L. Calhoun, her executors, administrators, and assigns, as her, and their own proper and legitimate property, goods and chattels, and effects from henceforth forever. *Provided,*always, and upon this special trust and confidence, nevertheless, and upon this express condition: That the said Mary L. Calhoun, her executors, administrators and assigns, shall and do permit and suffer me the said Downes Calhoun, to use, keep, and enjoy all the *labor, profits,*and emoluments arising from the work, labor, use, and hiring of the said negroes, Sylvia, Benjamin, Lewis, and John, and also the future issue and increase of the said negro woman, Sylvia, during my natural life, without paying or yielding anything therefor, or in any respect thereof: — and not otherwise. And that from and after my decease, she, the said Mary L. Calhoun, her executors, administrators, or assigns, shall, or lawfully may have, hold, and enjoy, the said negroes, Sylvia, Benjamin, Lewis, and John, and also the future issue and increase of the said negro woman, Sylvia, as her and their own specific, absolute and unconditional goods and chattels, or property, and to *dispose thereof,*and convert the same to her and their own proper use and behoof, as she or they shall think fit or proper.”

In 1835, about two years after the execution of this deed, the defendant Beazley s intermarried with the donee, MaryL. *121Calhoun, -who, after giving birth to ber only child, now Mrs. Larey, died intestate, still in her minority, in October, 1838. At tbis time Mrs. Larey was but a few weeks old.

It appears that during tbe life of Mrs. Beazley, tbe defendant, ber husband, obtained possession of tbe slaves, covered by tbe deed. Proof is made of tbe declarations of Downes Oalboun, that be bad given them to bis daughter and ber husband.

Beazley sold three of tbe negroes, Ben, Lewis and John in 1847. As guardian of bis daughter, be received several sums of money which be admits in bis answer. Tbis latter part of tbe case has been disposed of by a separate order.

Tbe bill claims that the deed of Downes Oalboun, reserved a title in tbe slaves to himself for life, and'subject to that reservation, conveyed a vested remainder to bis infant and then unmarried daughter; that tbe marital right of Beazley did not attach upon tbis expectancy; and that upon tbe death of Mrs. Beazley, intestate, ber interest, became distributable between tbe husband and ber infant child (now Mrs. Larey) under tbe statute of 1791. Mr. Oalboun, tbe life tenant, being now dead, and tbe expectant interest having accrued for enjoyment, tbe bill prays that tbe defendant account to Mrs. Larey, for two-thirds of tbe value of-the slaves sold by-bim, and that partition be made of those remaining.

Tbe defence is, that by tbe terms of tbe deed tbe *entire title*of tbe slaves passed immediátely to tbe donee, Mrs. Beazley, (then Miss Oalboun,) without any reservation of title to tbe donor, but only subject to a *trust*or *condition*constituting a bailment in bis behalf for tbe time limited. Upon tbis exclusive title of tbe wife, it is contended, tbe marital right of Beazley attached, and tbe property became bis by tbe marriage, which was a reduction of tbe property; and tbe subsequent delivery of Mr. Oalboun, was a full surrender of bis bailment, which it was competent for him to make, and for tbe husband to receive. If tbe Court should be of opinion, *122however, that the deed, reserved a title for life in Calhoun, and only conveyed the remainder to his daughter, (a case like *Dawson*vs. Dawson,) then the defendant contends that the subsequent delivery of Calhoun was a gift and surrender by him of his life tenancy, which instantly coalescing with-the remainder of his daughter, gave her an absolute title, *in*presentí, (with a right of present enjoyment) upon which her husband’s marital right attached.

I am of opinion, that if the deed reserved a life tenure (a title) to Mr. Calhoun, and conveyed only the remainder to his daughter, no conveyance to her husband, nor to herself and her husband, nor to herself alone, while under coverture, can be allowed the effect in this Court, to enable -the husband (in derogation of his wife’s interest or those of her privies) to claim the expectant estate of his wife by marital right. The wife in this case was under a double disability ; infancy and coverture — and unable to make, enter into, or assent to any contract or transaction for the destruction or modification of her rights. Coverture alone, according to our decisions, produces a complete disability, except where the wife is expressly enabled by statute as in the case of lands, and then the forms of the statute must be followed.

I do not regard it of any consequence, what the quality of the wife’s right may be, whether it be of a legal, or of an equitable nature, or whether the interest be vested or contingent, if it be *expectant,*no act of the husband, (and I incline to think no act of a third party, whether influenced by the husband or not,) will be allowed injuriously to affect the interest of the wife in her expectant estate. If a husband wish to get in his wife’s expectancy, he must come into this Court, the guardian of *femmes*covert, where terms suitable to the equity of the wife will be imposed.”

If the deed of Mr. Calhoun created a life estate and a remainder, there were two distinct titles, and when Mr. Calhoun surrendered or gave his *life estate,*to Beazley, the hus*123band of Ms daughter, or to Ms daughter, with the husband’s assent, this only vested the *husband,*with the *life estate.*It remained as distinct from the wife’s remainder (in the eye of this Court,) as if it had been aliened to a stranger, or still remained in the hands of Mr. Calhoun. Mr. Calhoun could convey *his own*title, no more. He had no right to disturb or affect *the title of his daughter.*That was a thing entirely distinct from his property and one over which he had no control.

But I have expressed myself fully on this subject in *Reese*vs. Holmes; and content myself here, with a reference to that case, and the authorities there commented on.

Before leaving this subject, however, it may not be improper to observe that what has been said may not necessarily apply to cases where the contest is between the husband and strangers. It may be that as to such persons, and in a litigation with them, the husband may be at liberty to show a perfect title in himself in the way spoken of. But, this Court, will not allow to such transactions, an effect injurious to the wife or her interest, or those of her privies when *she*or her privies are contesting the matter with the husband.

Some authorities have been quoted to show that the deed of Mr. Calhoun did convey the entire legal title to his daughter. If it did, her husband’s marital right may possibly have reduced and drawn it to himself upon the marriage.

In *Hooper*vs. *Hooper,**(a)***reported in Devereaux and Battle, Law Reports, (our library edition is so defective that it is difficult to ascertain whether the case is contained in the 3rd or 4th volume,) two slaves were conveyed by a mother to her son in • absolute terms; but the son made the following endorsement on the deed: “ The within named negroes, Clarissa and Milly, I hereby certify, may be at the disposal of my mother, Susannah Hooper, for and during her natural life.”

*124The action ■which, took place after the mother’s death, was intended to ascertain the effect of this endorsement. The mother’s representative insisted that the legal effect of her deed, and the son’s endorsement, taken together, was to convey the slaves to the son with a reservation of a life estate to the mother, and that this reservation of a life estate, by the law of North Carolina applicable to deeds (anterior to their statute of 1823)(a) gave the mother the entire interest. Eor the son it was argued on the contrary, that to construe the endorsement as a reconveyance, as suggested, would operate to entirely defeat the deed, which could not have been intended ; it should, therefore, be regarded as a mere covenant, or declaration of an use or power of disposition, without passing any legal title in the slaves. This latter view was sustained by Justice Pearson, and on appeal, his judgment was affirmed. Mr. Justice Gaston delivering the opinion of the Appeal Court, says “ This endorsement speaks the language of the donee,” (the son) “ and is a declaration or stipulation on his part in relation to the precedent subject matter. The legal limitation of the gift is the language of the donor, who had the sole right to prescribe the extent and modifications of her donations. This limitation is immediate and absolute, and therefore passes directly the entire property from the donor to the donee. The subsequent declaration or stipulation on the part of the donee is an engagement, that during the life of the donor, she shall have the disposal, that is, the enjoyment of the thing which has been transferred to him. *At*Law, it can be regarded but as an executory covenant, for the breach of which he would be answerable in damages. *In*Equity, the donor would probably be regarded as talcing an interest for life — but however this might be, it could not affect the legal operation of the instrument.”

It must be admitted that this case is entitled to considera*125tion. But I am not quite prepared to be governed by it. It will be perceived that the Common Law of North Carolina did not formerly as ours does, admit of the divisions of legal interests in personal property, by deed, into estates for life and in remainder. In this very case it seems to have been assumed that if the endorsement operated to convey back a life estate in the slaves to the mother, that life estate must necessarily carry with it the entire. and absolute estate, thus extending what was intended for a temporary into a perpetual title, and extinguishing, contrary to the plain intent, the enjoyment by the son, of any interest, even in remainder.

Of the extent to which the judges were driven by the doctrine of indivisibility of titles in personal property, by deed, we have another instance, in *Hart*vs. *Davis.**(a)***In that case, a mother had made a deed for a slave, to her daughter, after her (the mother’s) death. The mother, subsequently sold and conveyed her life estate in the slave to a stranger, who afterwards, during the mother’s life, sold and conveyed it to the daughter : the daughter then alienated the slave to one Davis. After the death of the mother, Hart her administrator, brought detinue against Davis for the slave. Justice Saunders, before whom the case was hear,d, decided that the mother’s deed to the daughter being to take effect (as he held) after her death, was invalid, but that her second deed, by which she conveyed a life estate, in the slave, carried the entire and absolute title, which title enured to the daughter as assignee of the purchaser, and on her conveyance passed to Davis. The plaintiff was, therefore, non-suited: On appeal, Graston, Justice, speaking for the Court, said — “ According to the settled law of the land before the Act of 1823,” a conveyance of a slave by deed, after a life estate, or with a reservation of a life estate therein, was void.(a) These decisions were founded avowedly on the *126principle that there could not be any remainder in a slave after a life estate, granted by deed. The opinion of the judge upon the operation of the first deed is in conformity with these decisions, and the principle which sustains them necessarily leads also to the opinion given by Mm upon the operation of the second deed. If a remainder, after a life interest in a chattel be null, because the life interest is the whole estate, then a conveyance of that'chattel, for life, must pass the whole estate. The learned judge then goes on to express the opinion that the same result must follow, even if the conveyance were regarded as a lease for life. There are other cases in that State to the same effect.

But our own cases are directly to the contrary, and in my opinion, while breaking away from mere technicalities, they are more conformable to principle.

These decisions of our own have now ripened into rules of property, and it would be unsafe to disturb them by adopting the adjudications of foreign tribunals, even if these were in themselves apparently somewhat more desirable.

. In *Hooper*vs. *Hooper,*the first of the North Carolina cases referred to, the learned Judges discriminate between the endorsement made on the deed by the grantee and terms introduced into the deed itself, by the grantor, from which it might at first view appear that if the grantor while conveying away the property, had expressly reserved a life estate to herself, such reservation might have been effectual to give her a life estate. But when we look into the reasoning of the Court, in that and other cases, we find it would have been impossible; for the principle on which the reasoning proceeded was that there could be no such thing as a life estate in slaves, whether attempted to be created by direct conveyance or by reservation. The life estate, and the remainder were indissoluble. *127He who conveyed slaves for life, conveyed them absolutely, and be wbo reserved a life estate, either retained the property out and out, or his reservation was void, and the whole property passed.

It was entirely consistent with this reasoning, and was a necessary consequence of it, when the Court declared that if any effect could have been given to the endorsement in *Hooper*vs. Hooper, it could only be by way of personal covenant. But we are not driven by our own cases to the necessity of regarding the use reserved to Downes Calhoun, as less than a title for life, because our law, unlike that of North Carolina, admits of a life estate in slaves, and I think we are bound, looking at the substance and real purpose of his deed, to give it the latter effect. Our law Courts, it seems to me, would regard the deed in that light, and if so, there is no necessity to invoke the principle adverted to by Mr. Justice Gaston, to wit: That even if the instrument must be construed *at law*as a mere covenant, *in equity*it would be allowed the effect of a legal reservation of a life estate to Mr. Calhoun.

I conclude this judgment by observing, that even if we were obliged to construe the deed as giving the entire legal title to Mr. Calhoun’s daughter coupled with a personal condition that she should permit him to enjoy the use and possession of the property during his life, this would have encumbered her title with a trust, and it might be worthy of consideration how far the marital right of her husband would attach on her trust property.

It is decreed that such of the slaves as have not been alienated are subject to partition, as the estate of Mrs. Beazley, between her husband and child, in the proportion of one-third to the former, and two-thirds to the latter, and that the defendant account to the plaintiff, Mrs. Larey, for two-thirds of the value of the slaves aliened (either at the price he sold them at or at their real value since the interest of Mrs* Larey accrued, as the plaintiff may require) with interest, *128and that the defendant also account for proper, and reasonable hire of which the share of Mrs. Larey will be allowed, and let a writ of partition issue, and the account be referred accordingly.

The costs to follow the decree and be paid by the defendant.

The defendants appealed, Because

1. The Chancellor erred in deciding that the deceased wife of defendant, Beazley, did not acquire a perfect legal title to the slaves in controversy, under the deed of Downes Calhoun, her father.

2. The Chancellor erred in deciding that the marital rights of defendant, Beazley, did not attach upon the said slaves.

3. The Chancellor erred in deciding that the legal title of the deceased wife of defendant, Beazley, (if before imperfect,) was not perfected even by the subsequent parol gift and delivery of the said slaves by Downes Calhoun to her.

4. The decree of the Chancellor is in other respects contrary to the law and equity of the case.

*Graham, Bellinger,*for appellants.

*Owens,*contra.

(a)

**3 or 4 Dev. & Bat. 150.

(a)

*Tillman*vs. *Sinclair,*4 Ired. 183, and 3 Dev. *&*Bat. 43.

(a)

 3 Dev. & Bafc, 42.

*Per Ouriam.*

This Court concurs in the decree, and it is ordered that the same be affirmed and the appeal dismissed.

Johnston, Dunkin, Dargan, and "WaRdlaw, CC., concurring.

*Appeal dismissed.*

(a)

*Graham*vs. *Graham, 2*Hawks; 8 Hawks, 538; *Sutton*vs. *Sallowell, 3*Dev., 186.