#### *John Marsh and wife*vs. *Casper Nail and others.*

*A.*Cc. died intestate, in 1822, leaving as his distributees, his widow 3). Gr., and his daughter S., wife of J. IT.: J. IT. administered on Ms estate, and he and D. G-., by private agreement, divided the property between them: D. G-. died, in 1823, intestate, leaving her daughter, the said S., her sole distributee, and J. IT. took possession of her estate without administration: J. IT. died in 1825, *testate:*— Held, that his marital rights had attached on the interests of S., in the personal estates, both of her father and mother.

*Before*DeSaussure, Ch., *at Edgefield,*June, 1831.

DeSaussure, Ch. Andrew Glover died intestate, on the 3d August, 1822, leaving as his next of kin, his -widow Dicey, and his daughter Sarah, then the wife of John Nail, now of John Marsh.

John Nail administered on the estate of Andrew Glover, and returned to the Ordinary’s office, an appraisement of his property, to the amount of §8080 25. John Nail and Dicey Glover, by private agreement, divided the property of Andrew Glover between them, Dicey Glover taking as her share, six negroes, two mules, twenty cattle, beds, sideboard and other furniture. Dicey Glover died intestate, Nov. 9, 1823, leaving said Sarah Nail (now Marsh,) her next of kin. Upon the death of Dicey Glover, John Nail took possession of the whole of her property above mentioned, without administration or legal authority. John Nail died November 1, 1825, leaving a will, dated June 25, 1823, whereby he disposed of his estate equally between his wife Sarah, and his three children, each taking one-fourth part, of which will, Casper Nail, Jr., Matthias Ardis and Dawson Atkinson, were appointed executors. All these executors have qualified, but Casper Nail, Jr., has had the principal management of the estate. John Marsh and Sarah Nail, intermarried in October, 1826, and by marriage settlement, all her property was conveyed to Dawson Atkinson, and Millege Galphin, in trust for her sole and separate irse. Casper Nail, Jr., died 17th June, 1830, and Matthias Ardis and Millege Galphin, administered upon his estate.

*116John Marsh and Sarah his wife, have administered upon the estate of Dicey Glover, and claim the six negroes, and other property above mentioned, as belonging to her estate, and not to the estate of John Nail, or if defendants persist in denying the division of Andrew Glover’s estate between John Nail and Dicey Glover, they, (John Marsh and wife,) claim the whole of Andrew Glover’s property. Jno. Marsh, and Sarah his wife, applied to the Court of Equity, and obtained, on 1st June, 1827, a writ of partition, to divide the plantation or mill tract, containing about 5000 acres, so as to allot 5-12 to Mrs. Marsh, and 1-12 to each of the children of Jno. Nail, and 4-12 to Casper Nail, Sr.: also to divide some other lands and certain slaves enumerated in the writ, and the rest of the personal estate of John Nail, deceased; one fourth part to his widow Sarah, now Mrs. Marsh. The Commissioners named in the writ, made return thereto, on 24th July, 1827. In that return, they made division of the slaves, allotting eight of them by name to Mrs. Marsh, and the remainder to the three children of John Nail. The slaves so allotted, were delivered to John Marsh and wife, and have been kept by them. The other slaves went into the possession of John Nail’s executors, and are held by them for the three children of John Nail. But the return of the writ of partition was never confirmed, though the parties acted under it; and took and held the negroes as allotted. The parties, Marsh and wife, and Casper Nail, Sr., and the executors of John Nail, and Mr. Galphin, trustee, agreed to the sale of the mill tract of 5000 acres, and the stock, according to the recommendation of the Commissioners. The Commissioner made a report on the mill accounts, which was confirmed, 16th June, 1829. The will of John Nail was produced in evidence. A good deal of parol evidence was introduced at the hearing of the cause.

The principal question made, on the argument of the cause, was, whether the complainants are entitled to six slaves, who belonged to Mrs. Dicey Glover, at the time of her death, or the defendants? It was argued for the defendants, that the estate *117of Andrew Glover, who died intestate in August, 1822, was divided by agreement between Mrs. Dicey Glover, his widow, and his daughter, then the wife of John Nail, and now the wife of John Marsh. The possession went with this division to the respective parties; and that on Mrs. Glover’s death Intestate in Nov., 1823, leaving no other heir than her daughter Sarah, her slaves and other property devolved on her said daughter; and she, and her then husband, (Nail,) getting possession of them, the marital rights attached, and they became part of the estate of John Nail. Also that these slaves were included in the writ of partition, sued out by John Marsh, and the said Sarah his wife ; and a division was made according to the return made by the Commissioners, and the possession went with the division to the respective parties, which fixed their rights.

It was further argued for the defendants, that Mrs. Marsh having accepted the fourth part of the estate of her late husband, John Nail, under his will, she is not at liberty to set up a hostile claim to these slaves, which her husband was possessed of, and considered as his own. For the complainants it was argued, that the voluntary division of Andrew Glover’s estate, made between Mrs. Glover, and Mr. John Nail, *vested in*each of them their respective shares; and that she dying intesate in November, 1823, the right devolved on her daughter, Mrs. Nail, but the marital rights did not attach in her husband, as he never administered on her estate, but merely took the slaves into possession, and that they survived to her on Mr. Nail’s death. That with respect to the ground alleged, that the slaves were included in the will of her husband, Mr. Nail, and that she cannot take under that will, and claim these slaves in opposition to the will, there was no foundation for the argument; as the will of Mr. Nail, was dated 25th June, 1823, nearly five months before the death of Mrs. Glover; and property he did not then own, could not have been contemplated by him at the making of the will. I have considered these opposite views presented to the Court, and feel that there are difficulties in the question. Upon the whole, however, I am satisfied that the argument *118preponderates on the side of the defendants. On the death of Mrs. Glover, there was no other heir than her daughter, Mrs. Nail, (now Mrs. Marsh,) and her husband got possession of the slaves left by Mrs. Glover. There was no division to be made. She was sole heiress; no writ of partition could issue, nor any claim be made. The wife was entitled to the right and to the possession, and the marital rights attached. To be sure, if any person had then administered, it might have made a different case. But the administration taken out since the death of Mr. Nail, cannot defeat his marital rights. This was the understanding of the complainants themselves ; for in sueing out a writ of partition of Mr. Nail’s estate to obtain the share of Mrs. Marsh, of that estate under his will, they themselves included these negroes, derived by Mr. Nail from Mrs. Glover’s estate. And the Commissioners having, in their return of July, 1827, divided said slaves, between Mrs. Marsh and the children of John Nail, Mr. and Mrs. Marsh accepted, took and held those allotted to them. This is, I apprehend, a confirmation and acquiescence in that division; and they are bound by it. This was the only question agued, whence I presume that there are no others in dispute.

If there are any others requiring an account, the complainants may take a reference if they choose. If not, the complainants’ bill must be dismissed, but without costs.

The Complainants appealed.

The opinion of the Court was delivered by

O’Neall, J.

The question necessary to be considered in this case is, whether the marital rights of John Nail, the first husband of the complainant, Mrs. Marsh, attached upon her interest in the estate of her father, Andrew Glover, and her mother, Dicey Glover, so as to vest the same in him?

I place both estates on the same footing, not that there is any necessity so to do, from any claim set up by the complainants, but because the defendants have placed their rights on that ground. It is, for them, the least advantageous position which *119they could have assumed; but if, in that point of view, their rights can be sustained, the complainants’ claim is at an end. There is no doubt about the rule, that if the wife’s rights in property are no more than a chose in action, the husband must reduce it into actual possession to give him a right *jure mariti.*In this respect, there is no difference between a legal and an equitable chose in action. The case of *Byrne*vs. *Stewart,*3 Eq. Rep., 135, and of *Elms*vs. *Hughes,*3 Eq. Rep., 155, are cases where the personal estate of the wife consisted in a share of an undivided property, to which others, as well as the wife, were entitled, and it was held that this was a mere equitable chose in action, of which there could be no possession until division, and hence, that the marital rights could not attach. It is said, 1 Roper on Husband and Wife, 217, that the husband’s receipt, or possession of his wife’s choses in action, must be in the character of husband, to defeat his wife’s title to them, upon her surviving him. This rule, I am disposed to think, with some qualifications, is the correct one. If the husband of a legatee or distributee is the executor or administrator, it could not be pretended, until the debts were paid, and administration of the estate thus effected, that he held the estate in any other than his representative character; but after the debts are paid, and each legacy or share is ascertained, it would be monstrous to say that his subsequent possession of his wife’s share is in his character of executor or administrator, and not in that of husband. In such a case, how can he divest himself of his character of executor or administrator, and assume that of husband *1*I know of no mode other than that of paying the debts, and ascertaining each legacy or share. In the case under consideration, John Nail administered on the estate of Andrew Glover; before the death of Mrs. Glover he paid the debts : so that, before her death, the estate of Andrew Glover became divisible between her and her daughter, Mrs. Nai^ (now Marsh.) Up to her death the share of the wife was a mere chose in action, not reduced into possession. Upon the death of Mrs. Glover, having no issue but the complainant, she *120became the sole heiress of her father, Andrew Glover, and of her mother, Dicey Glover’s estates. Of the latter, it is to be presumed there were no debts, or, if there were any, that they became chargeable on the husband, by his subsequent possession of her estate, and holding it as his own. In this state of things, what were the wife’s choses in action ? She was sole heiress of both estates, and entitled to the whole oí each. How was the husband to reduce them into possession? Both estates consisted of slaves, and other tangible personal property. Could he otherwise reduce them into possession, than by possessing himself of the property and treating it as his own? This, it appears to me, was the only course he could pursue, and that, by pursuing it, he actually reduced the wife’s • choses in action into possession. The evidence fully proves that he held the whole property as his own, by actual possession. And as to her choses in action, if the contract or nature of the demand be altered by the husband, this will be a reduction into his possession, sufficient to defeat the wife’s right of survivorship. It is true, in this case, that the wife’s right to possession was a mere equity; but if this equitable chose in action was united, during marriage, with the husband’s actual possession, it would seem that his estate became perfect. In relation to Mrs. Glover’s estate, whether it consisted in a share specifically ascertained, or whether it was an undivided interest in Andrew Glover’s estate, let it be supposed that administration had been granted to a stranger, and he had brought suit, either in Law or Equity, against John Nail, who was in possession. To the suit in Equity, the fact that he, in right of his wife, was entitled to the whole, would have been a sufficient ground to have prevented that Court from depriving him of the possession, except so far as might be necessary for the payment of debts. Against the suit at Law, the same ground would have induced the Court of Equity to grant an injunction. If, therefore, his possession could not have been legally divested, and was in his own right, and not in a representative character, I am satisfied that his marital rights did attach, and that the wife took nothing *121by survivorship. It seemed to be supposed, that, as to the estate of Mrs. Glover, the fact of her estate having been separated from the rest of the estate of Andrew Glover, would, if true, make some difference in favor of the complainants ; but I don’t think so. Administration is not necessary, in order to reduce the wife’s interest in an intestate estate into possession. It may often happen that the intestate owes no debts, and that all the distributees are of full age: in such a case, if an actual division is made, and actual possession obtained, the share of each *feme covert*distributee would be vested in her husband. In the case of *Hix*vs. *Cox,*decided by the Court of Appeals, December Term, 1828, at Columbia, it was held, that where the distributees of an estate constituted agents to sell the estate of their intestate, and the sale was made ■ and notes taken, but not due or collected, before the death of a *fen>.e covert*distribu-tee, that this was such a reduction of the wife’s interest in the personal estate into possession, as to vest it in the husband. 1 Roper on Husband and Wife, 216. I am hence satisfied that the husband’s possession was a possession in his own right, and not in a representative character, and that the wife’s right of survivorship is defeated. The bill ought, therefore, to be dismissed, as to the claim set up by the complainants, for the personal estates of either Andrew Glover or Dicey Glover, (deceased,) and it is so ordered; but as it also seeks partition of land and slaves, which, it is conceded, ought to be made, and which, perhaps, has not already been done, the bill ought to be retained. So much of the decree of the Chancellor as entirely dismisses the bill is therefore reversed, and the bill is retained for partition of the land and slaves, to which no objection has been raised.

Johnson and Martin, JJ., concurred.

*Decree modified.*