Majority — CATRON J.
p. 624Llewellyn Price, Jun., for the use of Daniel W. Gaulley, Plaintiff in error, v. Martha A. Sessions.
Syllabus
Where a testator devised certain property to his infant daughter, to he delivered over to her when she should arrive at-1 the age of eighteen years, and the daughter, at the age of_sixteen, married the executor who'had the principal management of the estate, and possession of the property'devised, he must he considered as holding it as executor, and not as husband.The executors had no power to deliver the property to the daughter, or to her guardian, .or to her husband, before the happening of the contingency men.-tioned'in the will.
The law .of the state of Mississippi, providing that a wife should retain such ' property in her own right, notwithstanding her coverture, having gone into operation before the daughter arrived at.the age of "eighteen years, the distribution to her must he considered to have beén made under that law. ■
The' property, therefore, cannot be responsible for the husband’s debts.
This case was brought up, by writ of error, from, the Circuit Court of the United States for the southern district of Mississippi.
The facts were these.:
In'June, 1836, Russell Smith died, leaving á will, the second section
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of which directed that his just' .debts and funeral expenses be paid, and that, for this purpose, the force bé kept together on his plantation, Sylvan Vale, and-prudently managed until , that crop, or .the subsequent one,' should yield a fund to pay said debts.
■ The third section bequeathed to his step-son, William D. Griffin, four quarter-sections of land, and seventeen slaves; and continued as follows:' “ which property is to be delivered to the said William D. Griffin,by my executors, .when he shall arrive at the age of twenty-one years; and should he, the said WilliamJB. Griffin, die before he arrives at the age of twenty-one years,- then, and in that event,' the aforesaid property, real and personal, is to be equally divided between, my dear beloved-,brothers-in-law, E. J. Sessions, P. W. Defiance, W. Le. Defiance, and Charles A. Defiance,-provided they be living; if not,' then it is to revert to my estate again, to be disposed of as hereinafter provided.
“'áthly. I give and. bequeath unto my dear beloved daughter, Martha Ann Smith, all the remaining balance of my estate, real-and personal; not mentioned in my bequest to William D. Griffin, -and should he and the others before-mentioned, to whom the said legacy was tó-descénd,: all be dead,-she is.also to inherit if; the said legacy td'.W. D. Griffin; but, at all events, the. property is to be kept together, arid the force worked on the plantation, until my said daugh-. tér, Martha Ann, arrives at the agé of eighteen years, at which time my_ executors are to'deliver over to her alb of the property first set apart for her, and still retain the possession of the legacy to W. D. Griffin, and not deliver it to her, if he lives until he is twenty-one. years of age; and if he dies, the.-mode is'pointed out for them to pursue. But should my said daughter, Martha Anri-, die before-she arrives at the age of eighteen, or has .an heir of her own body, then .the legacy left her, as also that may descend' to her from the first legacy, (to W. D. Griffin,) isto be disposed of as follows,; to wit:” &c., &c.
He further appointed E. J. Sesslons, P. W. Defrance; John Lane, and George Selser, executors;- and John Lane guardian to his daughter, Martha, the defendant in error,in the present suit, who was, at that time, about fourteen years of age.
On the 25th of July, 1836, the will was admitted to probate, and letters testamentary were granted to three of the executors, viz., Sessions, Lane, and Selser; and Lane was also appointed -guardian to the child.-
On the 8th of May,..1838, Sessions, together with Samuel Fernanda, and H. Femandis, executed to Price,, the plaintiff in error, two .promissory notes; one payable eight months after the 1st of May, 1838, for $2345 11, and the other payable twelve months after the 1st of May, 1838, for $2401 16; both being negotiable and payable at thé office of the Planters- Bank, Vicksburg, Mississippi.
. In September, 1838, Sessions, one of the executors, married Mar-
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thei, the daughter of the testator, she being, at that time, about sixteen years of age.
In August, 1839, Price, a citizen of the republic of Texas, and suing for the..úse of Gaulley, a.citizen of the state of New York, brought suit against the three, makers of the notes aforesaid, in the Circuit Couit'.of the United States.
Af November term, 1839, he obtained.a judgment against the whole three, and in December following issued á fieri facias upon the judgment.
, The property levied upon was suffered to remain in the hands of the possessors, upon.fheir executing a forthcoming bond.
In 1839, the legislature of Mississippi passed an act, (Acts, 72,) the 22d. and 23d sections of which' were as follows:
“ Sect. 22'. Any married.woman máy become seised or possessed, of any property, real, or personal, by direct bequest, demise, gift, purchase, or distribution, in her own iiaine, and as of her own property; provided, the . same does not come from her- husband, after coverture. .
. “ Sect. 23. Hereafter, when, any woman, possessed of a property in slaves,, shall marry, her property in such slaves, and their natural increase, shall continue to her, notwithstanding her coverture; and she shall have, hold, and' possess, the same, as her separate property, exempt from • any liability for the debts • or contracts of the husband:”
The 24th section gave to a woman who became entitled to slaves, during coverture, the .sa.me right which the preceding' section gave to those women who possessed slaves at the time of.marriage.
In. January, 1840; Session^ and wife executed two mortgages; one to the Commercial and Railroad Bank of Vicksburg, of land and negroes, to secure $21,661 19, and the other to the Planters’ Bank, of other land and negroes, secure $7121 20;
In May, 1840, the forthcoming bond; already spoken .of, was forfeited, the effect of which was equivalent' to a judgment against principal' and sureties, for debt, interest, and costs.
On; the 23d of November, 1840, the executors of Russell Smith presented their account to the Probate Court,-by which it was received, examinedj- allowed, and. ordered tó be recorded; and the executors Were discharged from further accounting with, the court, . unless thereafter cited by parties interested.
The estate was made Dr., $39,345 70
And allowed a credit of 13,636 12
By which it appeared the executors had overpaid $25,709 48 In January, 1842, an' alias fieri facias was issued against Sessions, together with the securities on the forthcoming bond, and levied upon the land and negroes which were devised to Martha byher father; In February, 1842, Martha claimed the property as her own, and
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the'question was brought before- the court below on the validity of said claim.
. Upon the trial, the claimant then introduced John Lane, one of flie executors, whose competency was objected to by the plaintiff,., but was permitted to testify by thé court. . Said witness testified that Egbert j. Sessions, (me of .the. defendants in the above-named fieri facias, had ácted as executor from the time he. qualified as such, in conjunction with the two other executors; that Egbert J.-Sessions had'taken charge of the plantation and slaves, as executor, and had-since had the actual control and management thereof; that the possession of Sessions was joint, with the other executors, and the control of the .slaves was given to-him by the other executors as a mat-' ter of convenience, as he, Sessions, lived bn . the adjoining plantation. The' witness further testified* -that the estate, of Russell Smith was .unsettled, and that there are now outstanding debts against the estatejof-Russell: Smith, unpaid, amounting to -upwards of twenty thousand .dollars. Witness further testified, that the accounts of the affairs of the estate had been kept ánd rendered mostly by Egbert J. Sessions, the witness,. Lane,-having made but two .annual settlements. . Witness stated-that he had. rendered' accounts, as guardian of clainaant, Martha A. Sessions. ‘ Witness further stated, that he considered' Egbert J. Sessions in the possession of the property, in the capacity of executor of Russell Smith '; that the-claimant and Eg-bert J. Sessions had intermarried in 1838 ; that said Sessions was now in-the possession- of the property since the marriage; that ho formal act of .deli very of the property tó E. J. Sessions, by ..the exe- ■ cutors, had taken place, since the marriage of the claimant with said Sessions.
The plaintiff proved that Claimant, was now about twenty years of áge, and was sixteen years of- age -at the time of her marriage with said Egbert J. Sessions, which was in' September, 1838.
The plaintiff proved by John Lane, that he assented to the execution ' of the two mortgages above .named, by Sessions and wife, the present claimant.
The claimant, then proved, that the. .debts enumerated in said' mortgage, before referred to, was, as she -believed, in renewal 'of debts contracted with the bank by Russell Smith, in- his lifetime, the claimant’s father.
Said John Lane further proved, that' he was a director in one of .the banks to which said mortgages are made; that he had assisted Sessions in making the arrangement with the bank,'and also assented that he, Sessions, and claimant should mortgage the property to the banks.
This was all the proof in the.cause; find,.thereupon,.the court instructed the jury, “that the property^ devised and bequeathed by the will of Russell Smith to the claimant, Martha A., did not vest in her, nor was she entitled to the possession of it until she, the
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fclaimant, arriyed at the age of eighteen, years: and although she married the' defendant in the execution before that time, the title of die property could not' be vhsted in him'until the claimant attained eighteen years of age, at which time, under the will, she became entitled to the possession of it ; that the property in controversy is a chose in action, and could not vest in her husband until die or he had reduced it to possession, which could-not be done,.by the terms of the-will, before she was eighteen yeafs of age. If, therefore, when the act of the Mississippi legislature, securing to married women their property, free from the .debts of their husbands, (which went, into-effect in April, 1839,) the claimant had not attained the ge of eighteen years, the husband had no legal estate in it, and-it ould not be subject to this execution; and if they believe from the vidence, that the possession held by Egbert J. Sessions, one of the efendants in the execution, was held as executor up to that time ioiñtly. with the other executors, such-possession vested in him no legal interest by his‘marriage with ' the'claimant, either to the land Or slaves, or other personal property.
“ To which instructions,of the court the plaintiff excepted, and tendered this his bill of exceptions at the time, before the jury retired from the bar, which he prayed might be signed, sealed, enrolled, and made a part of the record,.which.is done, accordingly.
‘jj. McKlKXEY,- [SEAL.]”
Under these instnictions the jury found a verdict for the claimant, and to review their eórréctness, the writ of érrór was-brought:
HendersoA, for the plaintiff in error.
Crittenden, for the defendant in error.
Henderson referred to the following assignment of errors which had been filed in the court below:
1. The court erred in instructing th§ juiy—
■ “ That the property devised and bequeathed by the will of Russell Smith to the claimant Martha Ann, did not vest in her until she arrived at the age of eighteen years.
2. The court erred in instructing the jury—
“ That the title, to the property did not vest in Egbert J. Sessions until the claimant-arrived at eighteen years Of age.”
3.. The court erred in instructing the jury— - “That the property in controversy is'a chose in action, and could not vest in the husband of the-claimant, until-she or he had reduced it to possession.. .
4.' The court erred in instruc-. the jury — •
“ If, when the act of the M.issi ppi legislature, securing to mar-riéd women their property, free from the debts of their husbands, (which went into effect in April, 1839,) the claimant’ had not at- . tained the age of eighteen years, the husband-had no legal estate in it, and-it could not be subject to this execution.”
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5. The court erred in instructing the jury—
“ If they believed, .from the evidence, that this possession held by Egbert J. Sessions,'one of the defendants in the execution, was held as executor up to ¿hat time, (when the act of the legislature of Mississippi,, above referred to, was passed,) jointly' with the other executors, such possession vested in him no legal interest.by his marriage with the claimant, either to the land or slaves, or other personal property.”
6. The court instructed the jury contrary to the law of the case.
.His argument then proceeded as follows
Notwithstanding that Russell Smith-died in June, 1836, and'his daughter Martha married the said Egbert in September, 1838, and the married women’s act took effect on the 15th April,-1839, yet, as from the proof it. is to be inferred that Martha was not eighteen years old till about June, 1840, it is -assumed the legacy could not vest till the, latter date, and therefore was property acquired to her-after the said statute took effect, and was therefore secured to her .by the 3d section of that áct, which is as follows:
“That.when any woman during coverture shall become entitled to, or'possessed of, slaves by conveyance, gift, inheritance, distribution, Or otherwise, such slaves, together with their natural increase, shall inure and. belong to the wife, in like manner .as is above provided as to. slaves which she may possess at the time of marriage,”
As to all such slaves, she is entitled, as .per sect. 2, to hold them as her property;.the control and usufruct, however, -to belong to the husband, agreeable to laws heretofore in force.
The Superior Court of Mississippi has-decided that this statutory estate, of a married woman is not the .sole and separate estate known to the common and chancery law: that ■ the latter may still be ere; ated, though .the- statute has not' created such estate, but has only secured personal property to a1 married-woman, in the . same way lands,-in her own right, -were secured to her at common law. 2 Smede & Marshall’s.Rep. 165, 57Q. ■
We maintain—
1st. That by.the will of Russell Smith, the'legacy to his daughter Martha vested on the instant of his death, and possession only was deferred; and her marriage-with Egbert J. Sessions-invested him with a right of property in said legacy, subject only t0 like postponement of possession'. 4 Hen. & Muiif. 411; 4 Call’s Rep. 321.; 1 How. Miss. Rep. 563, 564; 3 How. Miss, Rep. 312, 395, 396; 1 Wash. Va. Rep. "30.
That to fix a husband’s right of property to a legacy accruing to his wife, either before or-during coverture, it is not necessary he should reduce it to- possession. 3 How." Miss. Rep. 395, 396; 4' How. Miss. Rep. 214.
Especially is-this true of a legacy, the'possession of which is
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postponed by the will, by which the husband’s right to reduce to possession is delayed. 4 Hen. & Munf. 411.
2d. The court below erred jn charging the jury, that “the property in controversy is a chose in action, and could not vest in her husband until he or she had reduced it to possession, which'could not be done by the terms of the wil^until she was eighteen years,” and therefore that the.title could not vest in husband-, &c., till after wife was eighteen.
Whatever question may be made of what constitutes a chose in action, whether it' may be property out of possession, or -only a right to recover money due by contract, or by tort, it- is manifest, from the state of facts-in this case, these .slaves were not, (in relation to Egbert J. Sessions,); in any sense, a chose in action. He had the actual and controlling possession of the slaves from the time of-marriage. And the right to them, which vested in him by virtue of the marriage, concurring with his actual possession, precludes the possibility that these slaves were’, to him, choses in action. Himself was the executor — whom could he sue? hoth title and possession were-his own — for what'could he sue? -True, he had a right to account with the probate court for his administration, but he neither could sue, nor be sued, for- these slayes. See 1 How.. Miss.' Jtep. 563, 564.
3d. The court erred, also,' in instructing the jury that if Egbert J. Sessions had possession of the slaves levied, before'his wife was eighteen years old, such possession could only be as executor, and . could not invest him with the necessary possession to- fix his marital right in the property.
.If possession of a wife’s legaey be postponed by the will, the -husband, it is true, cannot be entitled to recover.its possession; -but for that sáme cause his marital right to-the legacy shall, not be', prejudiced. 4 Hen. & Munf. 411; 3'How. Miss. Rep. 313; 1 Wash. Va. Rep. 30. ..
Now, by the laws of Mississippi,' where a will does not otherwise, appoint,.executors and administrators are bound to pay over legacies, or make distribution, twelve months after letters granted. Rev. Co., How. & Hutch, p. 406, sects. 70, 71.
' The executors -had this estate in administration from testator’s dealh, in June, 1836, till Martha Ann married E. J. Sessions, (one of the executors,) in September, 1838,.two years and three months in alii
.But for the provision of the will, that the slaves should be kept together {HI the legatee, Martha, should arriye at eighteen years of age, the law would have terminated the executor.’s right of possession more than a year before the marriage.
It "was not, therefore, in right of their legal office of executors that {fie possession was then held, but by the appointment of the wfil only. The husband, therefore, had all the possession of this
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vested legacy at the time of his marriage of whieh the legacy was capable; and the law required nothing more of him.to perfect his . title-jure mariti. 3 flow. Miss. Rep, 313.
Two months, after Egbert J. Sessions’ marriage this judgment was obtained against him, which j by the statute of Mississippi, binds property j personal as well'as real, from its date. Rev. Co.-, How. Sr Hutch, p, 621; 6 How. Rep. 562 , 567.
But if we are mistaken iii all the. preceding, still the charge of the court and the verdict of the jury would be wrong; because, if the title to the property was in'the wife, the usufruct for life is, by the. statute of 1839, reserved to the husband, and that his life-estate . would be subject to execution for his debts. 6 How. Miss. Rep. 562 ; 2 Mjjnf. Rep. 501; 4 How. Miss. Rep. 230; 2 How. Miss. . Rep. 39.
Crittenden, for the defendant in error, insisted—
1, That the property devised was not fully vested in her till she arrived at the age of eighteen years.
2. That whatever right or interest might have been previously Vested in. her by the will, she had not, por was. she entitled to, seisin or. possession of the land or slaves before she attained that age. '
' And therefore, as she did not attain it until after her marriage, and after the passage of said act, the provisions of that act apply to and protect the land ..and slaves devised to her from the debts of her husband and from the execution in question'; and, consequently, that said verdict and judgment are correct, and ought to be affirmed.
Mr. Crittenden'- said that this case'strikingly illustrated the wisdom of the law of Mississippi, which was emphatically called “ a woman’s law.” The executor married the daughter at the age of sixteen, and the honey moon was: scarcely over when an execution came to sweep .away all that had been provided for her future comfort The only inquiry is, whether .the legacy was vested or not. ^Suppose she had.died,;{Vould the husband have had it? ' Not so, because it was to be applied to charitable purposes. If payment was only . postponed, the law would consider it. as a vested legacy, but-the consequences of a vested- legacy do not folloVv .here; therefore it cannot be so. . The devise over shows.that it was not. the intention of the testator-that the legacy, should vest immediately, and his intention must, be .the.-guide to the construction.of his will. It' is true that.chancery inclines to consider legacies as vested, when it is doubtful,, but all agree that every thing must give way. to- the' intention of the testator, to ascertain which is the object of ¿11 rules.. In this case,-the. intention is .clear. ' There .is ,a present -gift, .but. the legatee is not to come into possession till the age of eighteen,’and in the 'inéan' timé the executor-is .to'have it, who is directed how to apply-it.- Again, if the legacy vested and she-Bad died'before reaching, the age of eighteen, it wóüíd have gone to her personal
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representatives, but the will gives it another direction. 1 Roper on Legacies, 378, et seq.; 3 Vesey, 236, 536 ; 1 Merival'e, 422, 428';, 8 Vesey, 547; 2 Meriv-ale, 363, 384.
The rule is* that where interest'on a legacy is given to a legatee, courts aré inclined to consider it ás a vested- legacy, although the payment may be postponed to a future time; but here the profits were to go to the executor,' and, in case of the death of. the legatee, the property was to go in another direction than to her naturál heirs. "Was it.within the protection of the law of'Mississippi ? The law may be. inartificially drawn, but its object is apparent. When it ■allows a woman to acquire'and -hold separate-property,' it -is equivalent to .saying that it shall not be responsible for th¿ debts of the husband. But it is said by the other side that' the husband had at least an estate for life in the slaves, and that this estate was properly liable to execution for his debts. But the act says that hé is to have the .direction and control of them during coverture, and how.can this be complied with if they are removed out of it by being sold? If this were so, the intentions of the legislature could always be defeated. There are no restrictions as to time or. place, and they might be sold fot twenty or thirty years if .the husband continued to live so long and be removed to some distant place from which the woman, when a widow, would find it impossible to reclaim them. Was this what the legislature meant.? All-that'-they intended .to provide for was that tire husbánd should have a control over them for safe keeping. They intended ..to carry out their, -idea plainly, •without,reference to technical rales or contingent legacies. It has ■been said that the husban.d became vested with the property'before the passage .of' the act; but the counsel confounds his possession as executor with that as husband. A case has béen cited from Virginia, saying that where a remainder in slavés belongs to a wife, the-husband hás a vested right. But this is peculiar to' that state .and-arises from her local laws.. In Kentucky, slaves are' real.property for some purposes, and personal for othérs. The common'law has not-been the woman’s friend. Society has placed her in a .higher position than the law. Under a flattering pretence of unity'between husband and wife, the woman has been considered as annihilated, stripped of her property, and in widowhood, allowed only a scanty pittance of -the very property which she may have brought. This law of Mississippi is a wise and just law, and-we hope it will re-' ceive such a construction as will carry out the benign intentions of the legislature. Sessions was not married when the debts were contracted, and no injustice is done to his creditors by refusing to apply his wife’s'property to the payment of these debts.
' Henderson^ in reply and conclusion, referred to Roper on Legacies, 403, to show -that a devise -over upon a contingency does not prevent a. legacy from vesting. The husband here-claims to
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hold as executor after his functions a's executor have ceased. The distinction between the choses in action and property of -a wife, is clearly pointed out in 3 Howard’s Miss. Rep. 395. ' The-courts in Mississippi say that the right of the ¿husband is perfect without reducing them into possession. How - can' property in possession be a chose in action? Sessions had these slaves in possession j and has them now. He undoubtedly had a life-est&te in them. -The case ■is badly brought tip, because the verdict of the- jury includes both land and slaves. ■ In Mississippi property taken in execution may be replevied^ but this will- not apply to land. The statute only meant to put a wife’s personal próperty in the same condition where the common law places her real estate. But the life-estate of a husband in lands may. be sold. The statute gives to the husband the use and control of the'wife’s slaves as long as he lives, and consequently she .can have -no benefit from them- under any-construction of it.
delivered the opinion of the court.
The question arising on'the charge of-the Circuit'Court is, What interest had the husband, Sessions, in the property in controversy at the time it was levied on for his debts.' If he had any subject to' execution, it was acquired- by the marriage with his wife as owner. Her right, depended on the will of. her father.
Russell Smith died in 1836, in.the state of Mississippi, leaving a last will and testament, duly proved in Warren county, (27th July, . 1836,) leaving E. J., Sessions, P. W.JDefranee, John Lane, and George Selser his executors; and also leaving John Lane-testamentary guardian to the testator’s only child, Martha Ann Smith. Sessions, Lane, and Selser qualified, as executors,
'The testator first provided, that his debts should be paid by the .proceeds of crops from his plantation,' and that the force should be kept together, until the crops paid the same, not exceeding two, however.
He next gave to his step-son, William D. Griffin, a section of land, and various slaves, to be delivered to this devisee, wfien he arrived atthe age of twenty-one years: ■ But should he die before, ■then, and in that event, the property, real and personal was to be divided between E. J. Sessions, P.-W. Defiance, W.- Le Defiance and Charles A. Defiance, provided they should be' living — if not, the property to revert to the estate to be disposed of as thereinafter provided. . .
2. All the remaining balance of the estate real and personal is devised to tire daughter, Martha Ann Smith — and should all of the devisees mentioned .in the first clause be dead before William
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the plantation until my said daughter Martha Ann arrives at the age of Eighteen years; at which time my executors are to deliver over to her all of the property .first set apart for her, and still retain the possession of the legacy to W. D. Griffin, and not deliver it to her if he lives until he is twenty-one years of age.” The proceeds of the erops to be vested in young slaves, in the mean time.
If the daughter should die before she arrive at the age .of eighteen, or had an heir of her body, then the legacy left her, (and that left to Griffin also, if vested in ner,) are directed to be disposed of otherwise — in charities, &c.
At about sixteen years of age Martha Ann married Egbert J. Sessions, one of the executors, who had the principal management of the estate, and possession of the property. For the additional facts we refer to the statement of the reporter. On this -proof the court instructed the jury, “ that the property devised and bequeathed by the will of- Russell Smith to- the claimant, Martha A., did not vest in her, nor was she entitled to the possession of it until she, the claimant, arrived at the age of eighteen years; and although she married the defendant in the execution before that- time, the title of the property could not be vested in him, until the claimant attained-eighteen years of age, at which time, under the will, she became entitled to the possession of it; that the property in controversy is a chose in action, and could not vest in her husband until she or he had' reduced it to possession, which could not bé done, -by the terms. of the will; before she was eighteen years of age. If, therefore, when the act of the Mississippi legislature, securing to married women their property, free from the debts of their husbands, (which went into effect in April, 1839,) the claimant had not'attained the age of eighteen years, the husband had no legal estate in it, and it could not be subject to this execution; ¡and if they believe from the evidence, that the possession held by Egbert J. Sessions, one.'of the defendants in the execution, was held as executor up to that time jointly with the other executors,-such -possession vested in him no legal'interest by his marriage with the claimant, either to. the land or slaves, or other personal property.”
As the legacy "was outstanding at the time of the marriage, the title was in the executors, subject, first, to the payment of debts; and then the claim of the devisee: but on the contingency, that until the daughter arrive at eighteen, or had an heir of her body, she should in the mean time take nothing more than a support; and this whether she married or not, for a marriage was contemplated as possible before the age of eighteen, as the becoming a mother before was provided for, so that the child might take through the mother.
We think it is free from doubt that the executors had no power to deliver possession of the property devised to the daughter before either of the contingencies above occurred; and that an attempt to do so, either to the guardian,.or to the husband, would'have been
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void, because in violation of tbe manifest intention of tbe testator: It follows, that until the wife arrived at the age of eighteen, or had an heir of her body, the-husband could only hold possession as executor. Had he died before, then w;e think it clear, the wife would have taken, and not the personal representative of tihe husband, as the executors could not assent in his behalf to the vestiture of thé legacy in possession. Provisions in wills, that the executors shall retain the property devised until the devisee is of lawful age, and postponements to later periods, are of common occurrence; the executors having assumed the ¿rust, are held to its execution — on their responsibility and prudence the testator relied, and not on future husbands that young and orphan daughters might marry; nor on guardians selected by indiscreet and incompetent minors. These evils are too prominent, and have • too long employed the anxious cares of prudent .testators, for this court to lend its sanction in any degree to impair the -guards interposed by wills, whereby the rights of possession and enjoyment are withheld from devisees. As the testator could have .cut them off altogether if he would, there is no ground for complaint recognised in courts of justice: And yet less ground for complaint is there in a case like the present, where an individual creditor- of the husband seeks to defeat the plain provisions of the will, by an assumption that the marital rights superseded the executorial duties, and conferred a power to deliver possession, which the will expressly prohibited.
Mrs. Sessions attained the age of eighteen in June, 1840. In April, 1839 the act of Mississippi took effect, by which it is provided — that when.any woman possessed of property in slaves shall marry, her property in such slaves, and their natural increase, shall continue to her, notwithstanding her coverture; and she shall have, hold,' and possess the same, as her separate property,- exempt from any liability for the debts or contracts of' the husband: And when any woman during coverture shall become entitled to, or possessed of, sláves by conveyance, gift, inheritance, distribution, or otherwise, such slaves shall inure and belong to the wife in like manner, as is above provided as to slaves which she may possess at the time of marriage.
As -the right of distribution in this case was postponed until after the act of 1839 took effect, the wife could- only take 'the slaves exempt from the husband’s debts; — we say, could, because it.does not appear that the executors-o-f Russell Smith have assented to the legacy and. delivered possession'to the legatee, Martha Ann-.
Without saying more, we are of opinion the charge of the Circuit Court to the jury was proper, and that the judgment must be affirmed.