*Present*— Chancellors J. Rutledge, IIutson and Mathews.

#### Administrators of John Harleston *vs.*Executors of Thomas Lynch, and Hamilton and wife.

DECEMBER. 1784.

CASE XXX.

A brother devises to his sisters there-estafe- — One of them is her husband dies before proved or any made°of her brother’s es-husband Tiot having redu-tatc tempos-session, his tives^cannot take it, but it tUo'vvife. t0

*("This case was omitted bu accident in its proper place.)*

The complainants by their bill charge, that Thomas Lynch, of the state of South Carolina, being seized and possessed of a considerable real a.nd personal estate, did ^7 his will, dated tlie eleventh day of May, 1779, direct that in case he should have no child, all his estate, both real and personal, should be sold by his executors, or a limjor^7 them, and the money arising therefrom be disposed of one-third to his wife during her widowhood, w^h liberty to her to dispose of the same by will whilst she remained his widow; hut if she died intestate, or mar-aSai11» that part should sink into the residue of his estate, and go therewith; and then gives and bequeaths ll^ the rest and residue of his estate whatever, to his sis-tors Sabina, Esther and Elizabeth, the said Elizabeth being then the wife of John Harleston, who on his marriage with her had settled 20,000¿. of the then currency of this state; and by a codicil to the said will, bearing date the 27th July, 1779, after some alterations respecting the legacy to his wife, he ratified and confirmed the will, and appointed the defendants and Joseph Alistan, since de*245ceased, executors — That Thomas Lynch shortly after tlio execution of the codicil, being* in a bad state of health, and having no child, embarked on board the Fair American, and sailed in her for St. Eustatius, in company with several other vessels, from which she was parted in a storm, and has never since been heard of — That John Harleston being sent to congress ou public business before the will was proved, never returned to tliig state during the British usurpation, but died about the month of April, 1781, having first made his will; in which, after sundry legacies, he gives the residue of his estate to his cousin Nicholas Harleston, and appointed his wife excv euírix, and Isaac Motto, Esq. executor, who refusing to qrAify, the complainants obtained administration, col-Ie=*t.'d the personal estate of the deceased, and finding i«, in: ifilicient to discharge his debts, applied to the Rev, Mr, Smith, the only qualified executor on Mr. Lynch’s wili, to render an account, and deliver over to the complain-aids that part of the residuary estate which was left to Elizabeth the wife of the said John Harleston, and which the complainants were advised by operation of law vested in the said John: But the defendants refused to comply with the requests, alleging that the same was the absolute property of the said Elizabeth, she having survived hcr-liusband, who had never reduced the property in question to possession. The bill therefore prays that the defendants should he compelled to account with the complainants, and to deliver over to them what was bequeathed by Thomas Lynch to his sister Elizabeth.

The defendant Robert Smith, who is the only qualified executor on the will of the said Thomas Lynch, bv answer admits, that Thomas Lynch, his testator, did by his will convey to his executors the whole of his estate, as well real as personal, with directions to sell the same and divide the money which might arise therefrom among his 3istcrs, in such manner as is set forth in the complainants bill; one of which sisters was Elizabeth, then the wife of John Harleston, Esq. and now of major James Hamilton* That Thomas Lynch sailed from this state for St. Eusta-tius, in July or August, 177P, and was then in £1 healths *246and that the vessel in which he sailed has never been sá~ tisfactorily accounted for, but whether or when she was captured or perished at sea is unknown — That the will of -^*. Lynch was never proved till after the evacuation of this state by the British: That Mr. Ilarleston made such will and died at such time as is set forth in the bill; but that lie the said Harleston was never possessed of any part of the testator Thomas Lyncli’s estate: That it having been directed to be sold and the money paid to Elizabeth the wife of the said John, it was a mere chose in action, and consequently survived to her, even if Mr. Harleston had outlived Mr. Lynch, which defendant does not admit to have been the case: That although Mr. Harleston did settle 20,0001. of the then currency on his wife at their marriage, and which he considered to have been about a moiety of her then fortune, yet it is evident from his will that he never considered himself as entitled to the estate in question, because, although in the event of her marrying or claiming her settlement, he gave from her every the most minute articles of his own property, yet he scrupulously secured to her the fortune which he had acquired by her, even to her waiting-maid and her children. Wherefore, as no proof has been or can be offered to shew that Mr. Harleston outlived Mr. Lynch,— as even if it had, the estate in question being a chose in action survived to Mr. Hamilton, and as the testator has given proofs that he did not consider the estate as his, — • the defendant prays that the bill might be dismissed with costs.

The case came on to he argued in September, 1784, Mr. Bee for complainant, and Mr. T. Pinckney for defendant.

For complainant it was argued, that the property in question is a, personal chattel, and not a chose in action. 1 Bac. 286, 290. A husband and wife being separated, a legacy left to wife, vests in the husband. 1 Vern. 261. 1 Eq. Cas. abr. 58, 69. 1 P. Wins. 125. Harleston was never in possession of the estate, owing to the possession of the country by the enemy. 2 Eq. Cas. abr. 144. There was a marriage settlement by Harleston on his wife, *247therefore the husband was a purchaser or all the wife’s estate. 2 Vern. 501. 3 P. Wms. 199. The husband set-ties out of his own estate. 2 Eq. Cas. abr. 143.

Mr. T. Pinckney

contended, — A chase in action is a thing that cannot he obtained without suit. Co. Lit. A chose in action must be reduced to possession by the husband, or it survives to the wife. 1 Bac. 289. 1 Eq. Cas. 68. 3 Atk. 20, Bond *vs.*Simons, 726.

On the back of chancellor Mathews’s brief, are the following remarks, made by the court in giving its judgment on the case.

The property of the testator Lynch being directed to be sold for the benefit of his three sisters; although the will was not proved till after the war, owing to the calamitous situation of this country, and consequently could not be carried into execution, and that not through any laches of the executors; and Mr. Harleston, husband of one of the legatees in Mr. Lynch’s will, having died, prior to any tiling having been done hy the executors, and this court considering that to be done which was intended to be done, we must therefore consider the property which Mrs. Harleston was entitled to under her brother’s will, in the nature of a chose in action, and never having been reduced into possession by her husband, it survives to her, and she cannot be legally deprived of it: And although there are creditors in the case, we cannot divest her of her right for their benefit.. — .Therefore the bill must be dismissed with costs.