
    Mary L. Clarke, by her next friend, Charles B. Clarke, vs. William McCreary.
    In April, 1836, M. intermarried with C., the latter being entitled as distri-butee of her father’s estate to certain slaves; but in consequence of the pendency of litigation with reference to them, the slaves were not delivered to M. or C., until in September, 1839, when they went into their possession, and remained with them until 1842, when C., the wife died, leaving surviving her, a child by a former husband ; held, that under the law for the benefit of married women, which took effect in April, 1839, the slaves inured to the separate use. of the wife, and did not vest, under their joint possession, absolutely in the husband ; and upon the death of the wife-, would go according to that statute.
    dioses in action, and personal property of the wife not in her possession at ' the time of marriage, do not at marriage, by the common law, vest absolutely in the husband ; but he has a conditional and qualified right to them dependent on his reducing- them to possession during coverture ; the statute of 1839, therefore, for the benefit of married women, under which a wife's choses in action, and personalty not then reduced to the husband’s possession, inure to the separate use of the wife, is not retrospective in violating any vested right.
    In error from the circuit court of Claiborne county;- Hon. George Coalter, judge.
    Mary L. Clarke, an infant, by her next friend, Charles B. Clarke, brought an action of replevin to recover from William McCreary seven negro slaves. McCreary gave bond in conformity with the statute, and the slaves were' left in his possession. . At the May term, 1845, the defendant pleaded “ not guilty,” and a trial was had, at which the following testimony was admitted by agreement to go to the jury, and was reduced to writing, viz.:
    The defendant by his counsel admitted,
    
      “ 1. The negroes claimed by Mary L. Clarke are the same ne-groes recovered by Salina McCreary and William McCreary from the estate of Drury W. Brazeale, in right of said Salina, who was one of the heirs of said estate.
    
      “2. Said negroes were reduced into the possession of McCreary and wife by a division under the order of the probate court in September, A. D. 1839.
    “ 3. Charles B. Clarke was married to Salina Brazeale in 1830, in the county of Copiah. Mary L. Clarke, the plaintiff, was the only child of said Salina Clarke and Charles B. Clarke by that marriage, except two children now deceased. Salina McCreary died in the year 1842, leaving one child named Malissa by said McCreary, who survived her about one year and died. This was the only child left or ever had by the said Salina McCreary, except the plaintiff, (and the two deceased children) who was the half-sister of the child by McCreary.”
    The plaintiff, by her counsel, admitted the following testimony, which was offered by the defendant and reduced to writing, to wit:
    
      “ 1. Salina Clarke was divorced from Charles B. Clarke on the 28th of November, 1835.
    
      
      “2. Drury W. Brazeale died in February, 1834; his will was received and recorded April 28th, 1834.
    
      “ 3. McCreary was married to Mrs. Salina Clarke on the 1st day of April, 1836.
    “4. The decree of the superior court of chancery, enjoining the executors of Brazeale from carrying the will into effect by colonizing the slaves on the coast of Africa, was signed January 16th, 1839.
    
      “5. On the 30th of May, 1839, Calender and wife brought into probate court a certified copy of the decree and prayed distribution,” &c.
    Which was all the evidence in the cause; whereupon the plaintiff’s counsel requested the court to charge the jury as follows, to wit :
    1. The court will charge the jury, that if they believe from the evidence that the negroes in dispute were inherited by Salina McCreary from the estate of Drury W. Brazeale as one of his legal heirs, and that said negroes were not reduced into the possession of the defendant, McCreary, and wife, within sixty days after the passage of the law of February 15th, 1839, respecting the rights of married women, then the said negroes would fall within the purview of said law, and would belong to and descend to the heirs of said Salina, subject to the modifications of said law.
    
      2. That the divorce of Charles B. Clarke from said Salina could not, and did not affect the right of the plaintiff, Mary L. Clarke, to inherit property from her mother, the said Salina Clarke, or from any child born of her by her subsequent marriage with the defendant, McCreary, in accordance with the law of descents.
    3. That the law of February 15th, 1839, provides for the protection and descent of property in slaves to married women, who were married prior to the passage of said law, who should subsequently “become entitled to, or possessed of slaves, by conveyance, gift, inheritance, distribution or otherwise,” in the third section thereof.
    
      4. That the husband has no right to the slaves of the wife unless the same be reduced into his possession during her lifetime.
    5. That the passage of the law of February 15th, 1839, estop-ped the defendant, McCreary, from setting up any claim to the slaves subsequently reduced into the possession of himself and wife, and prosecuted in their joint names, and recovered in her right as one of the heirs of Drury W. Brazeale, except subject to the provisions and modifications of said law.
    6. That if the jury believe from the evidence that Malissa McCreary was the only child of Salina McCreary by her intermarriage with the defendant, William McCreary, and that said slaves were reduced into the possession of said Salina McCreary in September, 1839, as heir at law of Drury W. Brazeale, then on the death of said Salina McCreary, in 1842, the said Malissa McCreary was the sole heir of her said mother, and inherited said slaves from her under the provisions of the law of February 15th, 1839.
    7. That the brothers and sisters of the half-blood are preferred by our law in preference to the parents on a failure of children, and of brothers or sisters of the full blood. And if the jury believe from the evidence, that the plaintiff is the half-sister of Malissa McCreary, and that said Malissa McCreary died, leaving no brother or sister of the full blood, and no brother or sister of the half-blood, or descendants of the same, then the plaintiff, Mary L. Clarke, is entitled to be preferred to William McCreary, and is the only legal heir of said Malissa McCreary.
    The court refused all these instructions except the second.
    The defendant’s counsel then asked the following instructions, to wit:
    1. That William McCreary, the defendant, by his marriage with Salina Clarke, became entitled absolutely to all the personal property of his wife in possession, and to the right to reduce her choses in action into his possession; that these were vested rights, which were not divested by the passage of the “ woman’s law.”
    2. That the “woman’s law” cannot apply to a marriage entered into before its passage, so as to affect or impair the rights of the husband acquired by marriage.
    3. That McCreary, having reduced the property into possession during the lifetime of his wife, became entitled to it in his own right.” ■.
    These were given, and exceptions sealed.
    
      John B. Coleman, for appellant,
    Cited and commented ori Acts of 1839, p. 72; Grand Gulf Bank v. Barnes et al. 2 S. & M. 183; Ogden v. Saunders, 12 Wheat. 213; 3 Story, Const. 247; Price v. Sessions, 3 How. S. C. Rep. 624; How. & Hutch. 393, 394, sec. 31, 33.
    
      L. N. Baldwin, on same' side,
    In addition, cited and commented on Springfield v. Hampden Commiss'rs, 6 Pick. 508; Gallego v. Gallego’s Ex’rs, 2 Bro. Rep. 285 ; Paige v. Sessions, 4 How. S. C. Rep. 122 ; Davis v.' Foy, 7 S. <fc M. 64; Frost v. Doyle, 7 S. & M. 6S; Berry v. Bland, 7 S. & M. 77; Harper v.Archer, 8 S. & M. 229 ; Me Gee v. Ford, 5 S. & M. 769; Davis v. Minor, 1 How. 183; Woods v. ‘Bide, 5 How. 285; Tarpley v. Hamer, 9 S. & M. 310,; Bi-own v. Dillahunty, 4 S. & M. 713; Mason v. Haile, 12 Wheat. 370; Walter v. Bacon, 8 Mass. 468; JReedv. Fidlum, 2 Pick. 158; Satterlee v. Mathewson, 2 Pet. 412, 413; Charles River Bridge v. Warren Bridge et al. 11 Pet. Rep. 420; Bennett v. Boggs, 1 Bald. C. C. Rep. 60; Watson v. Mercer, 8 Pet. 88; Locke v. Dane, 9 Mass. 360; Jackson ex dem. Hart v. Lamphire, 3 Pet. 280; Ford v. Hall, 1 Monroe, 24; Calder v. Bull, 3 Dallas, 386.
    
      D. H. Hooper, for appellee,
    Cited and commented on LeggY. Legg, 8 Mass. 99; 6 Johns. Rep. 112; 5 Johns. Ch. Rep. 196; Lodge v. Hamilton, 2 Serg. & Rawle, 491; Wilkinson v. Perrin, 7 Monroe, 216; 7 lb. 246; Clancy’s Rights of Women, 1, 2; Dash v. Vankleeck, 7 Johns. Rep. 505; Davis v. Minor, 1 Plow. 192-; 2 Mod. 310; 2 Jones, 108; 2 Lev. 227; 4 Burr, 2460; 7 Johns. Rep. 502; 2 Show. 17; 2 Mod. 310.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of replevin brought in the circuit court of Claiborne county, to recover certain slaves claimed as the property of the plaintiff in error. The facts on which the rights of the parties depend are briefly these. Charles B. Clarke was married to Salina Brazeale in the year 1S30, and the present plaintiff was born of that marriage. This marriage was dissolved by a divorce in November, 1835, and on the 1st of April, 1836, Mrs. Clarke married the defendant, McCreary. Brazeale, the father of this lady, died in 1834. By his will he ejected his slaves to be emancipated. This provision of his will was declared to be void, by the proper tribunal, in January, 1839; and in September, 1839, the negroes in controversy, upon the distribution of Brazeale’s estate, came into the possession of McCreary and wife. The latter died in 1842. The law called the woman’s law ” went into operation in April, 1839, before the possession of the slaves by McCreary’s wife.

The single question is, whether the property inured to her separate use under that statute, or whether their joint possession vested the title absolutely in the husband. To determine this, it will be necessary to inquire what were the rights of a husband in the property of his wife, before the passage of this act, and to consider what change has been made by the act.

By the common law, marriage operated as an absolute gift to the husband of all the personal chattels of the wife, which were in her possession at the time. With respect to such part of her personalty as is not in her possession, as debts due to the wife, and all that class of chattels denominated choses in action, these were a qualified gift by law to the husband, on condition .that he reduce them into possession during the coverture; for if he die in the lifetime of his wife without reducing such property into possession, she, and not his representatives, will be entitled to it. But if he survive her, then he, as her administrator, will be entitled to all her personal estate, which continued in action or unrecovered at her death. Co. Lit. 351 os, also note, 304; Clancy, Husb. & Wife, 4; Roper, 204. These principles are very plain and familiar, and, apart from the statute, would give the slaves to the husband.

The clause of the statute which, it is contended, changes this rule, is as follows: 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, as her separate property.” Hutch. (Miss.) Code, 497. The words “ possessed of,” must comprehend a state of case like the one before us, where, although the wife was entitled to a chose at the time of the marriage, it was not reduced to possession until afterwards. To prevent the consequences of this interpretation, ,it is insisted by the counsel of McCreary that, by his marriage, he acquired a vested right in these slaves, which could not be affected by subsequent legislation.

If the postulate be true, that the right was a vested one, then the conclusion necessarily follows. It becomes important, then, to inquire whether this was a vested right.

Clancy, as cited in argument, says, “that the personal property to which a woman may be entitled at the time 'of her marriage, or during it, oonoiato of three kinds, viz : chattels personal, choses in action, and chattels real, all of which the law vests in her husband.” But he immediately adds, “ the extent of his right to them varies, as his property in them is absolute or qualified, according to the nature of the personalty.” — p. 2. From this, and from the whole context, it appears to us that the term vest1 is not there employed in the comprehensive sense in which it is understood by the counsel. The husband’s right to the wife’s choses in action is immediately afterwárds said to be conditional. Mr. Fearne defines a vested right to be, “an immediate fixed right of present pr future enjoyment,” or where “ the interest does not depend on a period or an event that is uncertain.” Cont. Rem. 1. Chancellor Kent says, “An estate is vested, when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment.” 4 Com. 202. But the discriminations between vested and contingent rights, especially •in regard to remainders, are very subtle and refined. It is more appropriate, therefore, to advert to the definition of the husband’s interest in the wife’s choses in action, to ascertain its true nature and extent. It is a qualified right, upon condition that he reduce them into possession during the coverture. Roper, 204. This condition is manifestly a condition precedent, and it is indispensable that the condition precedent should take place before the estate can vest. 4 Kent, Com. 125. In this case the law was passed before the condition was performed, and intercepted the right of the husband.

If we look farther at the character of the interest, which the husband takes in the event of his surviving, it will be still more apparent that it is not a vested one. If a suit be necessary to recover the possession, such suit can only be maintained by him as her administrator. Clancy, 4, 11. . And when recovered they are, in his' hands, liable as assets to the payment of her debts. 2 Kent, Com. 145; Heard v. Stamford, 3 P. Wms. 409. This would not be the case, if the right were vested in the husband.

This view is farther illustrated by reference to what is usually termed the “wife’s equity.” It is one of the acknowledged powers of a court of equity, to compel the husband to make a settlement upon the wife, ■ívlientrvei lrc’comcs itilD eejuity for aid. to enable him to reduce her estate, which lies in action, into possession ; and this equity will be enforced in behalf of the wife, at her instance, when the husband is seeking to recover possession of her choses, either in the ecclesiastical courts or the courts of law. Clancy, 441, 463. Most certainly this jurisdiction could not be exercised, if the absolute right of property were vested in the husband. It would seem that what the courts of equity may do in such cases in particular instances, the legislature might provide for by general enactment.

In this aspect of the case the statute is not obnoxious to the charge, that it is retrospective. It does not purport to operate on rights absolutely vested, but on those, which, though inchoate, have not been consummated, and which, at most, were contingent and conditional.

The Supreme Court of the United States, in the case of Price v. Sessions, 3 How. U. S. R. 624, has placed the same construction upon this statute which we have here done. This gives us greater confidence in our conclusion.

The charges of the court below, not being in conformity with this opinion, the judgment will be reversed, and the cause remanded for a new trial to be had, in accordance with the law as here stated.

Judgment reversed, and new trial granted.

A petition for a re-argument was filed, but refused.  