#### *C. H. Durant and wife*v. *John J.*Salley, *adm'r.*

Columbia,

Nov. 1849.

Where the slaves of an intestate estate, of which the mother was administratrixv and her daughter and herself co-distributees, had, after the marriage of the daughter, been worked in common by the mother and her son-in-law, (who with his wife continued to live with the mother,) until his death, and there was no evidence that there had been any formal partition, either by process of law, or by the agreement, expressed or implied, of the parties; the C ourt *held*that there had been no reduction into his possession, and therefore the marital rights of the husband hadnot attached to the wife’s distributive share in the slaves.

The marital rights do not attach to exclude the right of the wife who survives, or of her next of kin, if she dies before her husband, where there has been no partition of the property, (in the lifetime of the husband and wife,) in which she is entitled to a distributive share.

*Before*Caldwell, Ch. *at*Orangeburgh, February, 1849.

The decree explains the facts of the case.

Caldwell, Ch. The question is: were the negroes of the intestate estate of Roderick Murchison partitioned between Eliza C, Murchison, his widow and administratrix, and Kenneth Murchison, who intermarried with her daughter, (now Mrs. Durant, one of the plaintiffs) in his life-time, and did his marital rights attach *1*

There is no evidence that there was any formal partition, either by process of law, or by the agreement, expressed or implied, of the parties. Some slight circumstances have been relied on to raise a presumption of partition, but this has been rebuted by the most positive denial of the fact, on the examination of the mother as a witness. When Kenneth Murchison was about to marry her daughter, a marriage settlement was proposed; at first he assented to it, but finally declined to make it, and his conduct may have induced her not to make partition of the negroes with him and his wife during his life time. On his intermarriage, he removed to and resided (with his wife) at her mother’s, with whom she lived, where they continued to remain the rest of that year. During this time there was certainly no claim set up by him to *any exclusive possession*of any of the negroes. Indeed he could not have been considered in possession of them any more than any other person that might have lived in the family. ■ The next year the family removed over the river; and all the negroes of the mother-in-law were worked in common on the plantation, without any stipulation for hire on the one hand, or for her board on the other. From her testimony, there was no agreement between them as to what should be paid; his possession of the slaves was as a mere bailee or agent of his mother-in-law, and subordinate to her, *160as he does not appear at any time to have set up a claim to the *t*negroes, in the character of husband of her daughter. Some inferences were relied on, from the tax returns, to raise a presumption that the parties had partitioned the property. Such evidence has been ruled incompetent in a Court of law, and if even admitted here, would, under the circumstances, have been entirely too slight to warrant any such conclusion. Another circumstance has been brought forward as entitled to some weight, the recovery of the hire of Sam by Mrs. Murchison against the administrator of Kenneth Murchison, on the testimony of his widow, that Sam belonged to her mother, and her husband was therefore not entitled to his hire. This must have been true, unless there had been a partition of the negroes, and Sam had been assigned to her husband. Eliza Murchison, the mother, was administratrix of her husband, and until a partition of the property and a settlement with the distributees, she had a right to receive the hire of the negroes, and if her son-in-law received it, he was liable to pay it to her, although on a settlement she would have been bound to account for the assets of the intestate.

January, 1849,

12 Yes. 497. 5 Johnson C. R. 196. 1 Hill C. R. 332.

The cases of *Bynum*v. *Stewart, Elwee*v. Hughes, *Bunch*,v. *Hurst,*and the recent case of *Verdier*v. *Hyrne,*have settled the principle that the marital rights do not attach to exclude the right of the wife, who survives, or of her next of kin, if she dies before her husband, where there has been no partition of the propeity, (during the life time of the husband and wife,) in which she is entitled to a distributive share. If the husband himself had been the administrator of her father’s estate, he could not, under the circumstances, have set up any such claim, and his qualified possession, under the administratrix, clearly excludes him from standing upon a better footing than that: Neither can the lapse of time have any weight to raise the presumption that the husband’s possession was exclusive and adverse to the administratrix, for upon that view he might claim ail her negroes that she put under his management. The husband’s possession was not *jure mariti,*but in consequence of the mere permission of his mother-in-law; but if at any period of their residing together, there had been an agreement, even by parol, that he and his wife should take particular negroes, and hold them as their own, either by way of gift or partition, it would perhaps have been sufficient. But none of them having been specifically set apart for such purpose, it would be both against law and fact to come to a contrary conclusion; the rights of the parties must therefore have remained in *statu quo,*as they were on the marriage, which of itself could not operate as a reduction into possession, and the survivorship and discoverture of his wife entitled her to assert her claim *161as a distributee, and to make the partition of the negroes with her mother, as set forth in the pleadings. The administrator of Kenneth Murchison has no higher rights than his intestate had in his life-time, which he permitted to remain inchoate, by not having a partition and reducing his wife’s part to possession during the coverture ; but the administrator has apparently acted with prudence in resisting this part of the plaintiffs’s claim until they have established it, while he has, as to the other branch of the case, with propriety, offered to account for his administration.

It is therefore ordered and decreed, that the negro slaves mentioned in the pleadings be delivered up to the plaintiffs, who are entitled to them under the partition made on the first of May, A. D. 1845; and that John J. Salley, the administrator of Kenneth Murchison, do account for their hire, and for his administration of the said estate, to the plaintiffs, and that the matters of account arising therefrom be referred to the Commissioner, to ascertain and report the same. Costs to be paid out of the estate.

The defendant moved to reverse so much of the Chancellor’s decretal order as orders the defendant to deliver up the negro slaves, and to account for their hire, on the following grounds:

1st. Because Mrs. Eliza Murchison was an incompetent witness.

2nd. Because it is respectfully submitted that the testimony established a partition in the life-time of Kenneth Murchison, and that the marital rights of the defendant’s intestate attached.

*T. W.*Glover, for the motion.

*Ellis*& Brewster, contra.

*Per Curiam.*

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

Daiigan, Ch. absent at the hearing.

*Decree affirmed.*