[Present, Chancellors Rutledge, Marshall and James.]

#### Francis Peyre and Floride Peyre, *vs.*Thomas H. Jervey.

Oct. 1803.

A husband is exclusively entitled to the personal estate of his deceased wife, though not reduced to possession during the coverture.— His right of administration will protect it, notwithstanding the provisions of the act ofFebruary, 1791.

THE bill for discovery and distribution, sets forth that Magdalene Ashby in bill mentioned, being entitled to one third of the estate real and personal of John Ashby, her deceased husband, who departed this life some time in the year 1793, the said Mag*222dalene did make her last will and testament in the year i8oi 5 by which, amongst other things, she gave and bequeathed unto her sister Floride Peyre, and unto her niece Floride Taylor, all her part or proportion of the koncjS;¡ &c. that she might be entitled unto, to be equally divided between them, share and share alike, as soon as possible. All the residue of the property, or her proportion of the said undivided estate of her deceased husband, whether in lands, negroes or whatsoever the same might be; and all such other property as she might be possessed of, or entitled unto in any manner whatever, she gave to her. daughter Mary Catharine Ashby, to her and the heirs of her *body;*but in case her said daughter should, die, leaving no child, then and in that case, she gave and bequeathed the same unto her niece, the said Floride Taylor, and to her nephew Thomas Ashby, to be equally divided between them, share and share alike, to them and their heirs for ever: and she appointed executors of her said will. That the said Magdalene Ashby soon after making the said will, died, and some months after her death, to wit: on the 6th May, 1802, Floride Taylor, mentioned in the said will, intermarried with Capt. Thomas Jervey, the defendant. That Mary Catharine Ashby, the daughter of the testatrix, died on the 21st Sept. 1802, an infant unmarried, and without issue.

That soon afterwards, to wit, on the 3d Nov. 1802, the said Floride J ervey died intestate, and without issue, leaving complainants the next of kin. That the estate of the said John Ashby was not divided in the life time of the said Magdaline. That since the death of Mary Catha-rine Ashby, the said Thomas j ervey, as administrator of his wife, has been put into possession of that part or share of the estate of the said John Ashby, which on the death of Catharine Ashby, without leaving a child or children, was given by the said Magdalene Ashby to the said Flo-rido Jervey, the wife of the said Thomas, including a proportion oí the proceeds of a tract of land belonging to the estate of the said John Ashby, lately sold for the purpose *223of making a division between those interested therein.— And complainants insist that they are entitled to a distributive share of the real and personal estate of the said Floride Jervey, as next of kin, she having died intestate, and without issue ; the act entitled an act for the abolition of the rights of primogeniture, saying expressly that in all cases of intestacy, the personal estate of the intestate shall be distributed in the same manner as real estates are disposed of by this act.

That with respect to real estates, that part of the said act applicable to this case, is in these words :

On the death of any married woman, the husband shall be entitled to the same share of her real estate, as is herein given to the widow out of the estate of the husband, and the remainder of her real estate shall be distributed among her descendants and relations as is heretofore directed, in case of the intestacy of a married man. Complainants therefore conceive themselves entitled to one'third of the estate real and personal of the said Floride Taylor; and further state, that they have applied to the said Thomas Jervey, administrator of his said wife, for one third of the estate real and personal, which she died possessed of, interested in or entitled to, that he has refused and still refuses so to distribute the said estate of his said wife *;*contending that such distribution is not agreeable to law. Complainants pray that a full discovery may be made by the said Thomas Jervey of the. assets of the aforesaid Floride, wife of the said Thomas ; and that after payment of debts, the surplus of her estate may be divided according to law, and complainants put in possession of their proportion or share thereof, and such other relief as the nature of their case may admit.

The answer of Thomas Jervey the defendant,

admits that Magdalene Ashby, in bill mentioned, did depart this life at the time therein mentioned, and that she was entitled to one third of her deceased husband’s estate as stated.

*224That the said estate was not divided in her life timé,, and that she made and executed her last will and testament as is set forth. Defendant admits his marriage with Floride Taylor, and that she died at the time stated in said bill; and that Mary Catharine Ashby, in bill mentioned, died an infant and unmarried, and without issue : and also that he administered on the estate of his wife, and received sums of money due thereto, including a proportion of the proceeds of lands sold lately, and other property-left by Magdalene Ashby to his said wife Floride Jervey.

Admits that the said Francis and Floride, the complain-' ants, are the next of kin of the said Floride J ervey, his deceased wife, but denies that they are entitled to one third of the estate real and personal, which she died seized, possessed of, or entitled to. Submits to the court that complainants are not entitled to any part or share of the personal property bequeathed to his deceased wife by Mrs. Ash-by, or which she otherwise possessed at the time of her death, considering the said legacy as vested in his said-wife during her life time, and that as soon as it vested in virtue of his marital rights, he became entitled thereto, and therefore it cannot be considered as the estate of his wife, or distributable by the act entitled an act to abolish the rights of primogeniture, although there is a clause in-the said act saying, that in all cases of intestacy, the personal estate of the intestate shall be distributed in the same manner as real estates are disposed of by the said *act;*yet defendant apprehends that the said clause does not, and was not intended to relate to married women who are not capable of making wills, since such construction would make it operate in the nature of a marriage settlement in every case where the wife had property at the time of her marriage, or acquired it afterwards.

If the court should be of opinion that the complainants are entitled to any of the proceeds of the tract of land belonging to the estate of John Ashby, deceased, sold for the purpose of a division as is set forth, or to any part or share of sums he may receive due on the bonds left by the *225said John Ashby, and not yet paid, although they were payable long before the death of the said Magdalene Ash-by, the testatrix, or to any proportion of the negroes left to his said wife by the said Magdalene Ashby, dcfen-dant will immediately, cometo a fair and full account with them as administrator aforesaid, and abide any decree this honorable court may think fit to make in the premises;

The case was heard, and one of the chancellors after-wards delivered the decree of the court,

■ 'The husband is by law entitled to the personal estate . * ' his wife on their marriage, or which may come to her af-terwards, unless secured to her by settlement or otherwise, although not reduced into actual *possession; for thcte*might be time spent, and delays occasioned before he could recover her personal estate, especially if it consisted in choses in action, and such delay ought not to turn to his prejudice.

Indeed the statute of frauds presuming on the circumstance of his not haying reduced any part of the personal estate into possession, gives to him the right of administration,and provides that no part of it shall be distributable amongst her relations after her death, by declaring’ that he shall recover and enjoy the same : Thé act for the abolition of the rights of primogeniture, has not intrenched in any manner on the rights of the husband respecting his title to his wife’s personal estate; but has placed his claim to her real estate on the same footing as it places the wife in relation to the husband’s estate, if he was to die intestate in her life time.

In this case the legacies to defendant’s wife were vested; the first of them before marriage, and the second after.-— On the death of Mrs. C. Ashby, under age, and without issue, of course they belong to her husband, and are not liable to distribution. He must however account for what money he has received, or may receive, on account of lands that were sold, for the purpose of rnaking a division *226of Mrs. Ashby’s estate between him and her nephew T. Ashby.

Mr. Croft for complainants.

Mr. Gaillard for defendant.

It is therefore ordered and decreed that he account for the money so received by him; one .third part whereof is to be paid by him to complainants, according to their respective rights thereto.

Costs to be paid out of the estate.

This subject has since come more fully hito discftssion, and the court of appeals lms decided repe. tedly, that the personal estate of the wife, not actu.Jly reduced to possession during the coverture, does notbelong exclusively to the husband, but is distributable under our statute of Peb’ry. 1791. Vide 3d vol. of Reports in Chañe ery, p. 135, 147, 8. 155 to 164. See also 12 Ves. 497.