#### Thomas H. Wade, Jr., and others, *vs.*Fisher and Agnew.

A husband before having issue executed a deed by which he gave to his wife “ and her heirs” by him, certain slaves “ to have and to hold for her and their special use and benefit” forever, with a proviso, that, in the event of his death and her marrying again, the slaves and their increase should be equally divided between her and the heirs aforesaid. “But should there be no lawful heirs of her body” by him, then the said slaves and their increase, shall be hers *forever:*— Held, that the deed was inoperative — it amounting to nothing more than a gift to himself.

If operative, then it was a marriage settlement and was void as to creditors because not recorded in the Register’s office for Richland where the parties resided.

BEFORE WARDLAW, OH., AT RICHLAND, JUNE SITTINGS, 1856.

The circuit decree, which contains a sufficient statement of the case, is as follows :

Wardlaw, Oh. Thomas H. Wade, Sen., after his intermarriage with Rebecca Moore, executed a deed, dated September 12, 1826, whereby in consideration of affection for his wife, he gave and granted to her and “ her heirs by me” (him) certain slaves, “ to have and to hold for her and their special use and benefit from this time henceforth and forever: Provided, that in the event of my death, and the said Rebecca should again marry, then the aforesaid named negroes, their issue and increase, shall be equally divided between her and the aforesaid heirs begotten of her by me. But should there be no lawful heirs of her body begotten by me, then the whole, sole right and title of the said negroes, their issue and increase, shall be the said Rebeeca Wade’s forever and ever.” The deed was recorded the day after its date, in the office of *363Secretary of State, but lias not been recorded in tbe registry of mesne conveyances for Ricbland district, in wbicb tbe parties resided. Most of tbe slaves named in tbe deed were acquired through tbe wife. Sbe died July 8, 1846, leaving ber husband, and tbe plaintiffs, who are tbe issue of tbe marriage. None of tbe plaintiffs was born at tbe time of tbe execution of tbe deed. This deed was drawn by one, who is entitled by courtesy, to be styled learned in the law. The defendants are judgment creditors of tbe husband, and were proceeding to execute their judgment by levying on some of these slaves, when tbe plaintiffs claiming title to them under said deed filed their bill for injunction and relief.

This deed is a voluntary conveyance by tbe husband to bis wife, and ber unborn heirs by him. All that follows tbe proviso refers to an event wbicb has not occurred, tbe sur-vivorship of tbe wife. But tbe construction would not be different, if all tbe limitations of tbe deed were held to be applicable in tbe actual state of facts. At most tbe instrument cannot be interpreted as extending beyond a gift to tbe wife and tbe heirs of ber body, begotten by ber existing husband, and such gift from any other donor would confer-tbe absolute estate on tbe first taker. *Myers*vs. *Pickett,*1 Hill Ob. 37. In fact, however, tbe attempted gift is from the-husband to tbe wife generally, not to ber separate use, and has no more operation than a gift to himself. *Baines*vs.. *Woodward,*4 Rich. Eq. 403. A gift even by way of trust, to tbe wife’s own or special use and benefit, is not a gift for ber separate use, so as to obstruct marital rights. *Beales*vs.. *Spencer,*2 You. & Ool. 651; *Wilson*vs. *Bailer,*3 Strob. Eq.. 258.

Another view may be presented which is likewise fatal to-tbe plaintiffs’ suit. Tbe deed in question, being a voluntary conveyance from husband to wife, is in legal contemplation a. marriage settlement. *Price*vs. *White,*Oar. L. J. 297; *Head,*
      *364vs. Salford, 5 Rich. Eq. 139, 140. And as it was not recorded in the registry for Richland district, as required hy our statutes, it is void as to creditors. *Barsh*vs. *Biols,*6 Rich. 162.

It is ordered and decreed that the bill be dismissed.

The complainants appealed and now moved this Court to reverse the decree, on the grounds:

1. That the deed, although by a husband to his wife, and without the intervention of a trustee, is nevertheless a good and valid instrument in this jurisdiction to sustain the rights claimed by the complainants, the issue of the marriage, notwithstanding the provision of a life estate for the wife may have been void by the rules of the common law.

2. It is respectfully submitted that the said deed, not having been made in consideration of marriage, nor in performance of ante-nuptial articles, is not a *marriage settlement*in the meaning of the Acts of Assembly prescribing the manner of recording such instruments.

*Baushett,*for appellants.

*Bachman,*contra.

*Per Curiam.*

This Court is satisfied with the conclusion to which the Chancellor has come; and it is ordered that his decree be affirmed, and the appeal dismissed.

Johnston, Dunkin, Daegan and WaedlA'W, CC., concurring.

*Appeal dismissed..*