[Present, Chancellors Rutiedge and MiltsHiM.J

Jan. 1802.

#### The Executor of Mary Smelie, *vs.*Benj. Reynolds, and others, Executors of Wm. Smelie.

A maní married a lady possessed of some personal property, for which she was indebted by bond. He paid the debt, and also execut* edadeed, by which he gave the property to his wife, to'take effect after his death. There was no trustee named Afterwards, she made her will, which was written by herhusband. She bequeathed several legacies, and the bulk of the property to her husband for life, and at his death, to her daughter by a former marriage. The husband pro. ved the .will, and accepted and held the property under it till his death, and did other acts of confirmation. It was decided that the will, tho’ there was no agreement in writing'to permit it, was valid, and would carry the property to the legatees against the heirs of the husband.

*67THE bill of complaint charged that in 1783, William Smelie married Mary Lowrey, who, at the time of the marriage, was possessed of a considerable personal estate that she had one child, the issue of her former marriage, who afterwards married Abraham Waight, now dead.

That William Smelie, in August, 1787, made a certain deed, by which he gave to said Mary Smelie, after his death, all the estate that belonged to her at the time of her marriage with said William, to her and her heirs for ever. That said Mary, at the time of.her marriage with Wm. Smelie, was possessed of eighteen negro slaves. That said Mary on the 30th of October, 17-87, made her last will, and left to her daughter Sarah Maxwell Waight, several negroes by name to her and her issue. She also bequeath» ed to Sarah Hutchinson, one negro and 100/. currency.— The remainder of her estate she left to her husband Mr. Smelie, during his life, and at his death, to her daughter and her issue, and in failure of issue, to return to her heirs for ever.

That Mary Smelie died in the year 1788, leaving her Will in full force. That complainant, with the assent of William Smelie, qualified under said will; that having ob* tained a warrant of appraisement, he went on said plantation of William Smelie, who delivered to complainant 18 slaves as the estate and effects of testatrix. That complainant took an inventory and appraisement of said slaves, and delivered to Sarah M. Waight, with the assent of said William Smelie, the negroes bequeathed her. And he also delivered to said Wm. Smelie, the negro left Sarah Hutchinson, and the rest of said slaves to be held by him agreeably to the tenor of said will.

That Sarah M. Waight married B. Stiles, and is since dead, leaving three children now living. That William Smelie died in December, 1800, having first made and executed his last will, and appointed B. Reynolds, W. Hayne, and John Seabrook, executors, who qualified thereon. That the complainant demanded the negroes from the executors, who refused to deliver them. "The bill prays *68that they may be compelled to deliver them to complainant, and to account for their work and labor since Mr. Smelie’s death.

To this bill, the defendant, Benjamin Reynolds,the prim cipal acting executor of William Smelie, put in an answer. p}le answer of B. Reynolds admits, that at the time of the marriage of Wm. Smelie with Mary Lowrey,that she was possessed of some personal property purchased at the sale of her former husband’s estate; but the whole purchase money was not paid at the time of her marriage with Wm. Smelie.

The answer admits that W. S. made the deed as stated in the bill, but denies the validity of it, as there were no trustees, and the deed was from husband to wife : and as the deed was executed on a supposition that the property was unembarrassed; whereas William Smelie was obliged to pay the balance of the purchase money, and therefore the property vested in him by purchase. Defendant denies the right of complainant to take the property by virtue of the deed, as it was not to take effect until after William Smelie’s death, and was intended for the benefit of Mrs. Smelie ; but on her death, the gift having been to her and her heirs and assigns, the property became vested in W. Smelie, the husband, as answering the description in the deed, and legally entitled to his wife’s property. The defendant avers that William. Smelie told the defendant and. others, that he did not consider the deed to be valid, as he had signed it under the impression that the property was unincumbered, and that he never would give up more than he had already given up, alluding to negroes named in will of Mary Smelie.

That William Smelie sold one of the negroes that had belonged to Mrs. Smelie, previous to her marriage with him. The defendant admits Mary Smelie made a will, but denies its validity, as the said will does not appear to have been made under the authority of any settlement or other deed. With the assent of William Smelie, the defendant admits complainant may have gone on the planta - *69*'áon*of Wm. Smelie, and that he may have made an inventory *;*but defendant contends Wm. Smelie was ignorant of or had a misconception of his rights, and that such permission ought not to be binding or considered as an assent on the part of said Wm. Smelie, as said William Smelie declaredto defendant that he had acquiesced, supposing complainaut *legally*authorized by virtue of authority from the ordinary. The defendant 'states that W. S. had told him that complainant had made application for the purchase of the negroes mentioned in the inventory, and had ofibred half of the *value;*but that he the said W. S. refused to part with them but for their full value.

Defendant contends that permitting negroes named in the will of Mrs. Smelie, to be delivered to Mrs. Waight and Hutchinson ought not to be considered as an assent on part of said W, S. as those acts were done immediately after the death of his wife, when ignorant of his rights, and he might of his own bounty have consented to these, dispositions. The defendant admits the death of W. S. his making his will, naming'executors who have qualified. H e admits the demand of the complainant, and his *refusal;*also, the marriage of Mrs. Waight with B. Stiles, and issue left as stated in bill.

At the hearing in November, 1801, the following state-ment was agreed upon by the parties, as a part of the case-. That Mrs. Mary Lowrey purchased at the sale of her. deceased husband’s property, certain slaves, for the price of which she executed and gave her bond. She afterwards married Mr.'WilliamSm-Tie. On the 30th March, 1804, her brother, Mr. Hugh Wilson, and her husband, Mr. W. Smelie, took up her bond, and gave their own in place of it, conditioned to pay 571/. with interest.

This *bond*has been since paid off as follows : on the 24th May, 1788, by Mr.-Smelie, 239/. 18.?. *6d.*On 1st May, 1796, by Mr. Smelie, 110/. Is. *3d.*The balance of the bond paid by Hugh Wilson,

The complainant produced in evidence the original will *70of Mrs. Mary Smelie, drawn in the hand writing of her husband Mr. Wm. Smelie.

Mr. Hugh Wilson (who was admitted to be sworn, by consent,) testified that his sister, Mrs. Mary Smelie made her last will, with the consent of Mr. Smelie, herhus-band, and by his authority, expressed verbally.

The introduction of such evidence was opposed, but admitted by the court.

Mr. Wilson then proceeded to state that when his sister was ill, Mr. Smelie sent for him, and told him she was about to make her will, which was done accordingly. Mr.Smelie himself wrote the will, and kept it; and after his wife’s death, carried it to the Ordinary, and had it proved and recorded. A time for the appraisement of the property was fixed; and Mr. Smelie delivered up the property, and said he had no claim to it. He delivered the negroes bequeathed to Mrs. Waight, and paid the lega» cy to Mrs. Hutchinson.

Mr. Smelie always called the property his wife’s; though he knew the negro slaves had not been fully paid" for by her, and he had given his bond jointly with her brother for the purchase money. He proposed to the witness to purchase his (Smelie’s) life estate, for his wife’s daughter, who was to have them after his decease.

On cross examination, Mr. Wilson said that Mr. Smelie some time after his wife’s death sold one of the slaves of her estate ; and offered for sale an entire family, without restricting it to his life estate in them. He mentioned it to witness, but did not ask his permission.

Mrs, Chisolm testified that Mr. Smelie, a short time before he died, told h1. r he had sold one of Mary Smelie’s negroes; and said he had sold her because worthless and diseased. She always heard him call the negroes of his wife’s estate, her property. .

Mr. John Smelie testified that he was appointed one of the appraisers of Mrs. Mary Smelie’s estate by Mr. Wm. Smelie, who said the property was to be appraised as her estate, and not his. Headways heard Wm. Smelie speak of *71the property brought by his wife, as her own property, and to go to her daughter by her former marriage. He offered to sell his life estate in the negroes, to Mr. Hugh Wilson, who told him his price was too high.

Mrs» Bouchonneau testified that she ofti n heard Mr. Smelie tell his wife he did not want her property, and that she should give it to her daughter — was present when Mrs. Smelie signed her will. Mr. Smelie wrote it; but it was she who insisted on giving him a life estate in her property.

Mr. William Smelie’s will was produced in evidence. It was dated in the year 1798, with a codicil Bated 6th Dec. 1800. In that he gave to his last wife the property he got by her.

Mr. Ward and Mr. Pringle argued for the complainant,

that Mr, Smelie had completely divested himself of his marital rights, and agreed to a settlement to the separate use of his wife. That though the statute of frauds is the rule of the court, yet there are exceptions to *it;*and parol evidence is admissible to explain. See 1 Powell,,432.

The evidence is very full to prove that he never considered or called his wife’s property his own; but meant it always to be her separate , estate. As to the separate estate of the wife, see 1. Fonb. 106. 7.

It was said that Mr. Smelie was ignorant of his marital rights, and acts done in ignorance of rights, are not binding. But this is not so. He seems to have beén intelligent and beneficent; and his language and conduct all shew that he was aware that he might take his wife’s property to himself, but deliberately declined to do so; and left it to her own disposal chic fly for the .benefit of her daughter, to whom by his marriage he stood in the place of a parent; and the court will consider this as a gift to her.

Gifts to a wife, without trustees, will pass. See 1 Atk. 270. Lucas vs. Lucas. And an agreement on marriage may be made without trustees. 2 Ves. sen’r. 666 8. Pan-*72let vs. Delaval. See also,-2 P. Vms. 244, Cannel vs.■ Buckie; and 2 Vcsey, jun. 488,49. Si.Wm's, 388, Slanning vs. Style. The husband is considered trustee of the wife’s separate estate, where no trustee is named.

The will was drawn by Mr. Smelie himself, This shews that he considered the property as his wife’s sepa-, rate estate, and being in his hand writing, was a sufficient assent in writing, if that were necessary, which however it is not. Consent may be implied, and even subsequent approbation will be sufficient. See Burn. 47,8,

The answer does not deny the deed as illegal or invalid, but rather as defeasible by Mr. Smelie’s paying great part of the purchase money for the property of his wife ; yet he was at liberty to do so, if he pleased, and he ought still to hold and consider it as his wife’s separate estate. He has clone so, and even confirmed it by his will; and who is there who can control his acts.

Mr. Edwards and Mr. Desaussure argued for the defendant.

They insisted that no contract between husband and wife is binding, without the intervention of trustees. They are not separate persons at liberty to contract. The deed therefore was not valid. The case of Mrs, Haig vs. the executors of Haig, decided in this court in 1794, (seevol. 1, of these Reports, p. 348) is strong to shew that the wife cannot take property to her separate use by direct gift, without the intervention of trustees.— There was also a want of consideration, for the marriage had been consummated, and the marital rights had attached. Powell on Contr. 230.

If the deed can take effect, it must be as a gift. The deed was executory, and donee died in the life time of the donor — therefore void. If it was to operate as a will, then by the death of Mrs. Smelie, in the life time of the husband, this was lapsed. 1 P. Wm’s. 84.

If the deed be. inoperative, the will of the wife does *not*help the complainant — for a wife cannot make an effectual will or testament without the consent of her husband, and *73that must be in writing. 4 Burn. 46, 78. 1 Bacon abr. 291. Godolpbin, 30. Our stat. of 1734, excludes *femes*i- -li • *covert*from making wills.

But the deed by Mr. Smelie was void, for it was made direct to the wife, without trustees, after marriage, and to take place in futuro. .

A man cannot grant any thing direct to his wife, or enter into covenant with her. 2 Bla. 442. Co. Litt. 112, 113. 1 Fonbl. 93. 1 Vem. 385, Moyse vs. Eyles. 3 Atk. 72, Beard vs. Beard. All agreements in consideration of marriage, must be in writing, or they are void. 1 Fonbl. 179; and.even then, if not to be executed within a year, they are void by the statute of frauds.- -1 Atk. 270. 3 P. Wm’s. 334. 3 Bro. C. C. 340, 381.

The defect of the want of a trustee is decisive — for it is only through a trustee that a husband can grant to his wife. 2 Bla. 442, note 16. Hargr. Co. Litt. 30. 2 P. Wm’s. 77, Burton vs.. Pierpoint. 1 P. Wm’s. 125, Harvey vs. Harvey.

It is a maxim that a gift of personal property to take effect in,futuro is void. 2 Bla. 441, 2.

In Darley’s case, 3 Atk. 399, 400, lord Chancellor Hardwicke lays it clown that a mere voluntary promise of a husband to a wife, and executory only, has never been carried into execution by the court. That the slaves were absolutely the husband’s by virtue of the marital rights cannot be denied. To this it may be added, that he even paid the greater part of the purchase money for them. — ■ Hence, a resulting trust to him, independent of the marital rights. If a man purchases even lands in another’s name, and pays his own money, it will be a resulting trust for liimself; though no deed be made declaring the trust.

See 7 Bac. 142. 1 yern. 366. 3 P. Wms. 321, 3.

Besides, in construing this informal paper, it is clear that it was to have effect, in case Mrs. Smelie survived her husband. The words are, “ I give, after my decease, to Mary Smelie,” which amounts to saying, in case she *74survives me. But that event did not occur — she died before him.

The deed gave no power to the wife to make a will; and she had no power without such provision." Bylaw a *feme covert*has no authority to make a will — and even where, by agreement before marriage, a wife is to be allowed to make a will, it must be duly executed and conform to the power to make it effectual. 1 P. Wm’s. *739. 2 P.*Win’s.' 258. All the cases where married women have been permitted to make valid wills, are cases where the husband bound himself by covenant or bond, to permit his wife to make a will. *7*Bac. abr. 244. 2 Vern. 329. 2 P. Wms. 623. 2 Ves. sen’r. 61, *75,*612. 3 Atk. 155.

Not one of the decided cases go so far as to say, that pa-rol proof shall be allowed to establish a husband’s verbal assent to his wife’s making a will, or without a previous agreement in writing.

Acts of confirmation must be shewn to have been with full knowledge of the rights of the party confirming.

The court took time to deliberate, and afterwards' Chancellor Rutledge delivered the decree of the court.

Complainant’s bill states, that his testatrix had one daughter by a former marriage, and being possessed of a considerable personal estate in 1783, she married defendant’s testator, Wm; Smelie. That -not having made a settlement on her daughter, when she married Mr. Sme-lie, he on the 6th of Aug. 1787, executed a deed, giving' to her after his decease, all the estate that belonged to her at the time of marriage. That soon afterwards, viz. in 1786 or 87, she made a will, disposing of the principal property she was possessed of at the time of her marriage, some part thereof to her *daughter;*a negro and 100/. to S. Hutchinson, and the remainder to 'her husband during life, and after his death to her 'daughter ; and she appointed her husband and .complainant executors. That the complainant, with the assent and privity of Mr. Smelie, proved the will, and qualified as executor. That defen-*75/iant’s testator delivered up the personal property to complainant, to be subject to the dispositions in the will of .his wife. That it was appraised with his consent; the legacies were afterwards delivered over to the legatees, and the remainder was delivered to the said Wm. Smelie for his life, agreeable to the directions of the will. That Wm. Smelie is dead, and complainant has applied to his executors for the personal property, (so as aforesaid bequeathed to him for life) which they refused to deliver.

The defendants admit that complainant’s testatrix was possessed of some personal estate at the time of her marriage with the testator; the whole consideration money, for which had not been paid, and which he afterwards satisfied. He admits the deed, but denies the validity of it, there being no trustee named in it: also denies complainant’s right to take personal property, as it was not to be effected till after testator’s death. Admits that Mrs. Sme-lie made a will, but denies the validity of it, as it was not made under the authority of any settlement or deed ; or ivith the ass.ent'of Smelie, without which, she had no right to make any will that would be binding. Defendants contend that Smelie’s assent to the delivery of the negroes to the other legatees ought not to be binding, as he was either ignorant of, or misconceived his rights.

The evidence producedin this case was, the will of Mrs. Smelie, which was admitted : also, that it. was written by her husband Mr. Smelie. It was proved that after it was executed, he kept it in his possession, and sometime after her death, went with the complainant, and delivered it to the ordinary. That the complainant received the personal property as executor from Mr. Smelie, and re-delivered part of it to him as a legatee under the will. That the legacies were delivered to the respective legatees by complainant, and Mr. Smelie himself paid the *1001.*legacy to Mrs. Hutchinspn. J. Smelie, another witness, deposed that Wm. Sritelie, the husband, appointed him one of the appraisers of the personal property, which he called his wife’s estate. .That it was pointed out by Smelie, who *76said it was *to*be appraised as her’s, and not his. Mrs» B-u was present when he drew the will, and desired w^e í0 S've ProPerty to ^ler daughter, and that he wanted nothing. Mr. Smelie made his own will in Janua-ry> 1798, and a codicil in December, 1800; in neither of which has he disposed of this property.

For the defendant, it was contended that agreeably to the settled principles of lav/, the husband and wife are considered as one person : that she has no will of her own : that he by marrying, acquired the absolute right to her, personal property, and she cannot dispose thereof, unless a power to do it is reserved to her by articles, or a settlement before *marriage;*which, however, was not done in this case. That the deed was void, being made after marriage, without the intervention of trustees. That to make a will valid, she must have permission in *writing;*and that subsequent acts of confirmation *by the*husband, do not strengthen it or make it'good. That if the will should be deemed good, defendants should be at liberty to hold the personal property for the money paid, for her debts, and for this property particularly. It was insisted for complainant, that gifts between husband and wife, after marriage, would be supported in this court, though not at law, without the intervention of *trustees;*so as they do not afi, feet or prejudice the rights of creditors. That if a husband consents to his wife’s making a will, he should not afterwards dissent, and-thatan assent in writing is not necessary.

This is a very singular case, it cannot be assimilated to any in the books, and 'probably such another may never occur ; it’must therefore be determined on its own .particular circumstances.

It is not pretended that the power of disposing of her property was reserved by articles or settlement before marriage. . On the contrary it is admitted, that she married without any settlement.

This then comes under the idea of a voluntary settlement, or rather a voluntary permission of the husband a£-*77ter marriage, for the wife to dispose of the property she brought in marriage. Creditors cannot be affected by it, as the husband left property to pay his debts. On this ground it must stand or fall. If creditors will not be fected, call this pap-;r a will, or a deed cfappointment, any other name you please, if he has given such assent to the disposition as would satisfy the mind of the court, that he was consenting thereto, it ought to be binding and conclusive.

As to the deed of August, 1787, that is out of the question ; she clearly had no right to make any disposition, unless she survived him.

The case then rests altogether on the instrument of writing made in Oct. 1787, (which has been called the will of the wife,) and the simple question is whether there was such an assent by him to her making that disposition of the property as would bind him, and consequently all others claiming under him. That it is not absolutely necessary the assent should be in writing is plain, from the case of Lucas and Lucas, 1 Atk. 270, where a verbal promise made by the husband to the wife in her lifetime, ■and delivery of property after her death, was held sufficient to vest the property in the daughter, and he could not after-wards invalidate it. And in another case ofBrooks & Tanner, among other points, it was determined, that if the husband consent that bis wife should make a will, and she does so, and dies, if after her-death he comes to the executor and seems to approve her choice of him as an executor, and seems satisfied in the main with the will, this is a good assent, and makes it a good will; though wrhen he sees and reads the will, he is therewith displeased, and opposes the probate of it: and his subsequent disagreement after the formed assent shall not hurt the will.

Compare the case before the court with those above cited, and we shall see that it is much stronger than either of them. Defendant’s testator, several years after his marriage, when he is fully acquainted with all the circumstances relative to the property he received with his wife. *78and after he had made himself responsible for payment of part of the purchase money, undertook to draw, and actu-^7 ‘^rew a will for his wife, disposing of the property he got with her in marriage *;*nominates himself an executor therein, and directs it on the back to' himself, and the 0thc]r *executors;*gets it executed by her; keeps it in his own possession, and some time after her death, carries and delivers it to the ordinary to be proved.: The other executor qualifying at the same time, he being present,- and assenting thereto.

Shortly after he deli veres the property to the other executor ; he himself nominates an appraiser, and not only permits the executor to deliver the legacies to the respective legatees, and himself pays a pecuniary legacy to one of them, but receives back such part of the property as his wife had bequeathed to him for lifer When he drew the will, he relinquished his claim to every part of the property, saying he did not want it, arid desired his wife to give the whole of it to her daughter. And finally, 12 or 13 years after her death he makes his will, and a codicil, in neither of which does he dispose of any of the property that he received with his wife.

. If an assent in writing- was absolutely necessary, we are of opinion that the very act of drawing the will, having it executed, keeping it in his possession and himself delivering it after her death to the ordinary tobe proved, ought to be deemed as a full'assent to the will, and to the dispositions of the property therein mentioned, and binding on him and those claiming under him. That the subsequent conduct of defendant’s testator in giving up the property to the other executor, to be delivered over agreeably to the will, he himself paying the pecuniary legacy, receiving back some of the property given him for life, and not disposing of any part of it by his will or codicil, are all confirming acts of his assent to the disposition made in the will, which neither he nor those claiming under him ought at this late day to be allowed to invalidate. ■ That his executors should not be permitted to set 'up the demand *79they have done for the .money paid by him on account of this property, because he was full}'- apprised of the sitúation of it, had made himself personally responsible for it several years before the deed of *1787,*or the subsequent disposition of it by his wife, and never brought it forward as a claim against complainant or his testatrix. It therefore ordered and decreed that the defendants do forthwith deliver up to the complainant such oi the property as hath come into their hands or possession, which their testator received from complainant, under .the will of his wife, and also account for the work and labour of the negroes, since the death of their testator.

Costs to be paid by defendants.