#### Administrators of Mary Byrne, *vs.*Administrators of Thomas Stewart.

case XXIX.

[Triedbefore Chancellor Desaussure, Charleston,

November, 1810.]

THIS case arises out of the following facts : Thomas Stewart made and duly executed his last will and *136testament on the 14th June, 1788, and died on the 16t'h September, 17"83, leaving the same in full force and virtue. The testator bequeathed to Ms wife and his children jointly, a lot of land in Hasell street, to be Mr-ed out for the support of his wife and children, during m¡noPity 0f all his said children j and that no part thereof should be sold, until his youngest son came of-ao-e . ant] that the said lot should then be sold by his executor and executrix, and the money arising from the gaje g]!0U](| |je divided equally between his wife and chii-, dren. His widow being named executrix, qualified on . 7, „ , the will and possessed herselr 01 the negroes and land, and received the rents and profits. The widow afterwards, on the 8th March, 1790, married Patrick Byrne, the present complainant, and she died on the 8th March, 1803, without issue by her 2d marriage. On her death, C. Fitzsimons, who had been named ex’or of her husband, renounced, and administration with the will annexed was granted to Ann Stewart, one of the daughters of the testator, who intermarried with "Wm. Porter, and they possessed themselves in November, 1803, of the said lot, and received the rents and profits thereof till the sale. John, the youngest son of the testator, died some time after his mother, on the 14th July, 1805, having then attained nineteen years of age. The other three children having attained the age of twenty-one years, the lot of land was sold on the day of October, 1805, and it brought 1055k sterling, one fourth in cash, and the remaining three fourths payable in one, two and three years. Patrick Byrne administered on bis wife’s estate and effects. He claims and files this bill to recover her proportion of the rents and profits of the said lot, and of the amount of sales thereof. The only question, however, now submitted to the Court for its decision is, what proportion of the moiiej arising from the sale of the lot Patrick Byrne is entitled to, in right of Ms late wife. Ho contends that from the death of John, the youngest son of testator, his wife was entitled to a fourth part of the amount sales. *137i His counsel insisted that the devise of the land, directing the same to he sold, converted it to personal property *;*and also, that this was a vested interest, and that by virtue of his marital rights and of his administration, he is entitled to the whole of her share. For defendant it was contended that this was real estate, and continued to be so at the wife’s death, upon which the act of 1791 would operate, and give the husband only a third part. And the defendant’s counsel contended further that even if it should be conceded that the devise converted the real into personal estate, and that it was a vested legacy, still Patrick Byrne was not entitled to the whole share that his wife had a right to, for that the same not having been reduced to possession during the coverture the marital'rights could not attach, and that as they did not attach,'the regulations of the primogeniture act interposed, and directed that the property of the wife, dying intestate, should be divided, one third to the husband, and the remaining two thirds to the children of the said Mrs. Mary Byrne, by her first husband Thomas Stewart.

*136The husband isnMentitled wife’s death to the propei-could not be reduced to possession port,onunder i79l!atUte °

*137Mr. Smith, for complainant,

contends that the primogeniture act did not intrench on the rights of the husband. It prescribes the division of the real and personal estates of the intestate whether male or female, but there is no repeal of the old law as to the marital rights. See Judge Grimke’s law of ex’rs, 274. Concerning the distribution of intestate’s estates, the same question arose under the stat. of distributions', 22d Charles 2d, originally ; but the declaratory act of 29th Charles 2d, intervened and declared the act of 22d Car. 2d, had not taken away the husband’s rights. The Court will not admit of aconstructive repeal. Judge G. says, that our act of Assembly, of 1791, not mentioning this subject, leaves the statute in full operation: that the act of 1791 gives new rights to the husband, but took none from him. The expían, act of 29 Car. 2d, saved the husband’s rights. ; P. Win. 381. The constitution directed that the pri*138m°S’°»itul'e ac^ s^011^ b° passed, but meant not to af~ ^ec* Pcrsonal property, at least not as to the husband’s rights. The act of 1791 could only mean to operate as *f0*estates that were distributable by law, and the effects of the wife were not distributable by law. The short cjaiig6j jn t}ie act abolishing primogeniture, putting real and personal estate on the same footing, does not reach or alter the husband’s rights in his wife’s property unless by implication. Constructive repeals are notfavor-cd. Bay’s rep. 244, Townsend & Rippon. As to putting notes on the same footing with bonds, the Court would not do it by implication, though the provision in the executor’s act would have borne that construction. Examines the case of Speight vs. Holloway, administrator of Meggs. Thinks it not applicable fully to the main point of the case ,• for it does not appear that the husband was actually administrator : he might not have administered.* This makes no difference : for if the hus*139band did *not*administer, the husband’s right to administer is so exclusive that his representatives would he entitled at all events. Cites the case of Peyre and Jervey, (decided in this Court) 2d vol. of Decrees, 239,. Oct. 1803. The Court supported the marital rights under the old law, notwithstanding the regulations of the mogeniture law.

Mr. Ford,* for complainant.

It is not the necessary effect of the construction of the act of 1791, to entrench on the marital *rights.*Husband takes the wife with, all her debts, and he is bound to pay the debts, even if he gets nb property: but he is not bound to pay unless judgment is obtained against him during the coverture. The marital rights did not depend on statute, but on the common law. The stat. of 29th Car. 2d, is a declaratory act, and introduced no new law. The 5th clause of stat. of distributions is positive as to distributing the whole personal estate of the intestate ; yet a wife dying intestate, the property was not distributed, for die marital rights intervened. The right of the husband to the choses in action of the wife, is transmissible. 1 P. Wm. 382-3, Squib vs. Williams. Even if an intruder should administer on the wife’s estate, he would be a trustee for the husband and his representatives.

The act of 1791 must be construed to give married women a right to make wills, before it can be made to *140mon law. TM husband’s rights, in the personal property oí the wife. An affirmative statute will not repeal the com-6 Bac. Abr. 376, 383. When the provision 0f a statute is general, it is subject to the control and construction of the common law.

ijijje marital rights should not be totally altered and subverted by three lines of an affirmative statute, fixing a new rule. The legislature should have expressed an intention to reach and alter those rights. If you do not extend the words, « in all cases of intestacy,” to married ■women, you leave the marital rights where you find them j and you do not make such a great alteration in the law by mere implication, or by an affirmative statute. For what purpose is the wife’s property given to the husband ? Because the husband is bound to take the wife with all her circumstances, debts, &c.

Mr. DRAyton", for defendants.

The recommendation of the constitution is to abolish the rights of primogeniture, and to make more equitable distribution of intes-tates’ estates : and that married women were in contemplation of the legislature, is clear, for married women are spoken of expressly in the act.

The 12th clause puts personal estate on the same footing as real. There is no room for inference, construction or argument. 1 Cornyn’s Digest, 349, says, it was doubted whether, under the 22d Car. 2d, (and before the 29th Car. 2d) tbehusband was entitled to all the personal estate of his wife, 2 Modern, p. 20 $ case in 26th and 27th Car. 2d, Wilson vs.-.

Toller’s law of executors, 83-4. The husband’s exclusive right to the administration of his wife’s estate, and to hold her property, was doubted till the 29th Car. 2d. That statute expressly reserved the rights of husbands. Mr. Grimke’s compilation, 279, says, the bar at Westminster thought the husband was compellable to make distribution of his wife’s personal estate, till stat. 29, Car. 2d. The act of 29, Car. 2d, recites, that the husband had the exclusive right prior to the statute.

Mod. 208 *i*1 lord Ray. 96. An affirmative statute ex-*141eludes all matter not necessarily included within the statute. The act of 1791 gives the husband one third of the real and personal estate of his wife. Can this rule stand with the claim of the husband to the whole ? Examine 1 P. Wins. 381, which was quoted by the other party : it was subsequent to the stat. 29, Car. 2d, (Stat. of frauds.)

Not one of the clauses of the statute of 22d or 29th, Car. 2d, speaks of a married woman : a man, dying without a wife, or leaving one, is spoken of, provided for, &c. &c. — yet the law has been extended to married women.

The act of 1791 speaks of married *women;*gives the husband a right in fee simple to a third part of the wife’s real estate, as an equivalent for the diminution of the husband’s rights in the personal estate, not actually reduced to possession. The act of 1791 meant to give something ; but the 12th clause would he stripped of all meaning, and give nothing to the husband of the personal estate, and would be made a nullity, unless the construction is given he contends for. The responsibility of the husband, for the wife’s debts, does not remain after her death, except he receives other property of her’s after her death. As to Townsend vs. Rippon, it does not *apply;*there is no analogy. Speight’s case, decided by the law judges, at Columbia, is precisely the question here, and decided against the husband’s claim to the whole of his wife’s estate. Geiger’s case, which is said to he opposed to Speight’s, does not seem to he in opposition. As to Peyre and Jervey, Decrees 239, it is exactly in point, and against this claim. It is now proper to settle the doctrine, for the two courts clash. The right to administer and to the property, it is said, go together: hut it does not follow as a corollary. In England they go together, because the husband taking all, administration follows. Here the question is, Does he take all ? Another law has been introduced, forming a new rule.

Mr. Pringue, for complainant.

1 Black. 433-4. As to the rights of the husband. He may assign the wife’s *142dioses in action. 10 Mod. p. 163. He may release debts due to liis wife. Can, then, property in this situation.be called the wife’s? No. It is a mere contingency, dependant on her surviving the husband. The property in Elms’s case were negroes, though not divided., It was therefore a chattel interest and not a chose in action. 11th Yiner. 87-8. To shew that the right of the husband was vested and transmissible. The right of administration of the husband was founded on the right of property. Hargrave’s law tracts, 475. Right of administration did not go to the husband as the next of kin, but from Ms right to his wife’s property, and administration was necessary to the perfect enjoyment of the property. This cannot be reckoned the property of the wife. It was in abeyance during the coverture *;*it might have survived to her if she had survived her husband. She did not survive *;*therefore became again his property. Toller’s law of executors, 83-4. Act of 29, Car. 2d, is declaratory of the act of 22d Car. merely because there were doubts, which the legislature deemed to be unfounded. Husband’s rights to wife’s personal estate not dependant on the statutes of 22d Car. 2d, or 29th Car. 2d,* but on his marital rights at common law, independent of any statutes. 3 Vesey, jr. 247, Watt vs. Wyatt. Wife had merely a revcstible right, and if she did not survive it never revested : consequently there was nothing in her, for distribution, on her dying before her husband. The jus disponendi not being in her, what interest had she ? None. The obligation to administer does not shew that the property was his wife’s, but results from the necessity of acting as administrator, as a means of recovering debts due formerly to the wife. A married woman may have a sole and separate estate, disposable by her, by will, (under a settlement) and if she does not dispose, then the act of 1791 would attach to it, and the property would be distributable according to the *act;*so that the act has something to operate upon. It is a conclusion, that the rights of husbands should not bo taken away by implication. ■ For if you collate *143the other parts of the act with the particular clauses, it will appear to have been merely in relation to the real estate that the statute was expressly enacted. The act professes to he made to abolish the rights of primogeniture : this can only relate to land. Then comes a little clause putting personal on the same footing with real.

eeche?.

The act of 1791 does not divide personal estates more than the statute of distributions, (22d and 23d Car.) The policy of the division of real estate is not applicable to personal estate. The 16th clause of the act of 1791 shews that real estate alone was contemplated. It gives her what she takes (at her option) under the act, in bar of dower. Case of Elms was of negroes undivided: the possession of one is possession of the other.

*

 J. Speights to. J. Haleoway, Administrator of J. Meggs.

Motion to set aside order confirming return of commissioners upon a writ of partition, and to quash the verdict. Before Judge Waties, then a Judge in the Court of Common Pleas.

J. Meggs died, in 1792, seized and possessed of real and personal estate, leaving Catharine, his widow, and three minor children. Catharine married in 1794 the plaintiff, and died in 1802, without any partition of Meggs’s estate having been made. In 1804 a writ of partition was issued in behalf of plaintiff to effect a partition of Meggs’s estate. By such writ commissioners were commanded to divide the real and pei-sonal estate into 9 equal parts, and to assign and deliver one-ninth to plaintiff. Keturn made as directed, and confirmed. Plaintiff insists it was illegal, on the following' grounds, viz : because, upon the death o f Meggs, a right to an undivided third part of his personal estate immediately vested in his widow, and by her intermarriage with plaintiff became vested absolutely and immediately in him, without any partition having been made in her life time : because, if plaintiff, by his intermarriage with the widow of Meggs ,had not an absolute and unconditional vested interest in an undivided third part of Meggs’s personal estate, without having had partition made and the same reduced into his possession during the life of his wife, yet he is still entitled to administer to his wife, and, as her administrator, is entitled to recover a third part of Meggs’s personal estate and to enjoy the same to his own use and benefit, without being compellable to malee distribution thereof.

WiTHBnsroojr, for plaintiff. 1 Com. Dig/349, Carthew52. Was this a vested or contingent interest ? A married woman cannot be said to be *139such a one as can die intestate. 1 Com. Dig. 350 ; 1P. Wm. 382. The husband is entitled to the wife’s choses in action as administrator.

BiAininra, E. contra. It must vest in interest as well as possession. 1 Bac. Ah. 479. All personal estate that was the property and in possession of the wife at the time of themarriage becomes the husband’s. The act of A. authorises persons claiming part of an estate to apply to the court to make partitions. £>he did not. The administrator never consented to give up the wife’s share to her. Choses in action, demandable by action, do not survive to the husband at the death of the wife. This was a vested interest, but it was a chose in action and demandable by action. Legacy to wife and received by husband’s agent, it is the husband’s property ; if not received, it is a chose in action. Possession is necessary to vest an interest in the husband. Motion refused same day.

*

Mr. Ford and Mr. Pbinuie being concerned in another case, depending on the same point, argued this cause.

The Court then delivered the .following decree:

The first question then for consideration is, whether 'this property is to be considered as real or personal estate, at the death of the wife ? This is the Case of a. will, and the intent of the testator must guide us if it applies to the question.

■ It appears to me that the testator did plainly intend to change this land into personal property. He directs it to be sold, on his youngest son’s coming of age, and the money to be divided between his wife and children. The sale is suspended, but the ultimate destination is to make the bequest pecuniary. The right of the wife was not to any part of the land, but to part of the proceeds of its sale j and being a vested legacy, which is not 'denied, her proportion will go to whoever is entitled to it by law. The main question then is, who is entitled to the share which devolved on Mrs. Byrne ? Mr. Byrne claims the whole, either under his marital rights, or under his administration, without liability to account. His marital rights cannot give him this property, because it was not reduced to possession *;*nor could it be, for the sale did not take place till after her death ; and the question before the Court relates to her share of the amount of sales. Is he entitled to it under his adminis-*144®’a^011 wife’s estate and effects, without any^iabi-lity to account,? It is said that this would have been the clear state of his rights, under the law, if the act of *1791,*for the abolition of the rights of primogeniture, had not intervened; and that this act does not take away or alter ^ rjgjj^g 0f tj)0 husband : that the act contemplates a division of real estate, and the clause respecting personal estate appears, it is said, to have slipped in by mistake or inadvertence. 1 admit that in all doubtful cases it is proper to look, as has been urged, at the preamble, and to seek light from whatever quarter it may be got. But what is the object of the search ? It is to discover what the law makers intended. The moment that discovery is made, all further enquiry is at an end, for that intention must govern, unless it be in hostility tc some constitutional regulation. Now the clauses on this subject, in the act of If 91, are as clear and as explicit as possible. They are as follows : *ic*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 in the same manner as is heretofore directed in case of the intestacy of a married man.” *ie*In all cases of intestacy the personal estate of the intestate shall he distributed in the same manner as real estates are disposed of by this act.”

It is manifest, from these clauses, 1st, that the husband’s rights in the real estate of the wife are put on the same footing as those of the wife in the husband’s i*eai estate. 2d. That personal estate is put on the same footing as real estate, in the division of intestates’ estates. As there could be no doubt with respeetto the real, there can he none as to the personal. It is, however, contended that there is no direct repeal of the law in favor of the husband’s rights to the property of his wife, not reduced to possession at the time of her *death;*a right founded on the common law and fortified by the statute, which however was unnecessary.

*145From this decree there was an appeal, on the ground, *<¡*That the husband, either by virtue of his marital rights, or as administrator of jiis late wife, is entitled to her whole interest and estate, whatever it may be, in the lot of land and premises aforesaid.”

21st Nov. 1810.

"Winsanx.ev, sol. for comp’t.

The appeal came to a hearing in March, .and was argued by Mr. W. L. Smith for appellant, and Mr. Che-ves for respondent.

; Mr. Smith contended that this property should be considered to bo personal estate. The testator manifestly meant to convert the lot of land into personalty. He connects it with personalty in the direction for a division. The land is directed to be sold at all events, and the money is to be divided. The postponement of .the sale till *146the youngest son attains twenty-one years does not alter tlie case. See 2 P. Wms. 322, Doughty and Bull; 3 P. Wms. 211; 3 Atk. 448. In this Court the same point was decided in Drayton and Drayton.

*145TIs '-’e are two modes of repealing *laws;*one by direct and distinct repeal, sometimes substituting another provision in the room of that which is abrogated, and sometimes simply by l’epeal: the other, *by*introducing a new rule inconsistent with and contradictory to the former rule. This, by implication, repeals the former. Both cannot subsist together, and the maxim of law and of reason is, leges posteriores priores abrogant. In the case before us a new rule is introduced, different from the old rule and abrogates it. The court of common pleas appears, in the case of Speight vs. Holloway, administrator of Meggs, to have taken this view of the subject. I think it is the right view. But as no solemn decision of this point has been made in this Court, I should be glad to have it settled by the judgment of the whole Court. It is ordered and decreed, that the defendants do account with and pay over to complainant one third part of that proportion of the nett amount of sales of the lot in question, to which his late wife, Mrs. Byrne, was entitled, under the will of her fir'st husband, Thomas Stewart.

*1462 Atk. 562, 8. If the testator orders his executor to gejj rea] esta^e> this converts it to money, and it will go as personal estate. The act of 1791, abolishing the rights of primogeniture, has no application. The statutes of 22d and 29th, Car. 2d, were not repealed by the act of 1791, and must have operation. It was decided by Lord Ch. Macclesfield, that the husband should he within the statute (of distributions) as to his interest, but not to his prejudice. So Lord Cowper. The point has been decided by this Court; Peyre vs. Jervey, 2d vol. of Decrees, 239. Claims for the surviving husband tiio whole that the wife was entitled to, by virtue of the marital rights j and repeated the arguments used before the Circuit Court.

Mr. Ciieves, for respondent,

stated that the decision in Doughty and Bull only settled a doubt, by deciding that a power given to sell, and a power to sell at discretion, means the same thing. The general principle is, that real estate, so disposed of, is considered as personal from the death of the testator. But this does not apply to a case where the testator directs the estate to continue as real estate till the death of the youngest son, a period of nearly twenty-one years : then any of the children dying, during the continuance of the real estate, their share to he considered as real estate, and to be divided accordingly, So the wife’s share. There was no power to sell till the youngest child should attain the age of 21 years, if it had lived.

But if the property should be considered as personal estate, the husband, surviving his Vvife, must come in under the primogeniture law for a proportion only. If is true that this Court and the Court of Law have decided this point differently. This Court (in the case of Peyre) was in favor of the marital rights to the old extent : the Court of Law- has restricted them (in the case *147of Speights and Holloway, in 1805, at Columbia) to the precise limits marked by the act of 1791, abolishing the rights of primogeniture, and for the division of real and personal estates; and it is proper there should be an uniformity of decision. The English statute of distributions did provide for the wife’s right to a third part ofJ the intestate husband’s personal property, but made no provision on the subject of the wife’s dying intestate, (as she must unless specially permitted to make a will.) The common law rule, therefore, must then prevail, in the case of the wife dying intestate, and the husband would take all: so that there really was no reason for the statute of frauds declaring, that the statute of distributions did not extend to the case of the wife’s estate.. 2d Blackst. 514. But our act of 1791 provides expressly how the real estate of the wife shall be divided, on her decease, among her husband and other relations *;*and then declares that the personal estate shall, in cases of intestacy, he divided in the same manner as the real estate. Admitted that if the right had vested in the wife during her life, and had been reduced to possession, the marital rights would have attached, and the property become absolutely the husband’s. But the property in question had not so vested, and therefore was subject to the operation of the act of 1791. But if a vested legacy, still not to take effect till events, which never took place in her life, and therefore not reduced to possession for the marital rights to attach upon. The act of 1791, for abolishing the rights of primogeniture and the more equal division of intestates’ estates, does lay down a new rule of property, different from the old et leges, poste-riores priores abrogant.

After the argument, the Court, composed of Chancellors James, ThompsoN, Desaussuee and Cíaíxiaiid, (Chancellor Rutiebge being recently dead) were unanimously of opinion that the decree of the Circuit Court ought to be affirmed.

*148The entry in the decree book of the Court of Appeal» isi as follows :

> *“*The administrators of Mary Byrne vs. Porter and wjfe administratrix of Stewart. Miss Elms vs. Arthur Hughes. Court of Appeals, March 15, 1811.

> *(C*fliese causes, turning on the same question, were argued together. From the 10th clause of the first section of the act abolishing the rights of primogeniture, which says that « 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,” it is clear that a married woman may die intestate as to real estate, and it is equally clear from the 2d section of that act, that she may die intestate as to personal estate. This section enacts, in general terms, *<e*that in ail 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.” The only point to be determined is, Whether the husband jure mariti became entitled, on the death of his wife, to her personal estate n'ot reduced by him into possession during the coverture ? or whether such estate must be considered as belonging to the wife, and be distributed in the manner directed by the above act. The Court are unanimously of opinion, that the personal estate of the wife, not reduced into possession by the husband during the coverture, must be considered as her estate, and consequently, that it must be distributed according to the act of *1791,*abolishing the rights of primogeniture,, and for other purposes.

> ^ March 15,1811. Decree affirmed.”