
    *Faulkner v. Faulkner’s Ex’ors.
    November, 1831.
    [23 Am. Dec 264.]
    (Absent Beookm, J.)
    Husband and Wife — Marriage Articles — Failure to Appoint Trustee -Effect Where Husband Uses Wife’s Money in Purchase of Chattels - Case at Bar.-By marriage articles, it Is agreed, that, during the coverture, husband and wife shall enjoy their respective estates jointly, but that their estates shall be kept separate and distinct from each other, and that the property then belonging to each, shall remain under the control of each, and that the husband shall claim no part of the wife's estate, and the wife no part of the husband’s estate, by virtue of the marriage: but no trustee is appointed to bold the wife’s estate for her separate use: during the coverture, a sum of money belonging to the wife before the marriage, came to the husband's hands; he laid It out in chattels, which he declared were his wife's property; the husband dies: Hhld, the legal estate in the chattels so purchased. vested in the husband, and at bis death devolved to his ex’ors, so that they may maintain detinue for them, against the widow.
    jDetirme for sundry chattels, by James and John Faulkner, executors of Jacob Faulkner deceased, against Sarah Faulkner, his widow, in the circuit court of Halifax. Plea, the general issue. Verdict and judgment for the plaintiffs.
    At the trial, the defendant filed a bill of exceptions to a direction given by the court to the jury, from which it appeared, That before the marriage of the plaintiff’s testator, Jacob Faulkner, with the defendant Sarah, in August 1811, marriage articles were entered into between them, whereby 'it was agreed, that during their joint lives, they should enjoy the estates of each other jointly, but their estates should be kept separate and distinct from each other, and that the property then belonging to each should be under the management and control of the party it belonged to; and, in case the husband should survive, he should not have or claim any part of the wife’s estate, real or personal, by virtue of the marriage or otherwise; and, in case the wife should survive, she should not have'or claim any part of the husband’s estate, real or personal, as his widow or otherwise, nor be entitled to administration of his estate. That, among the properly of the wife before the marriage, secured to her by the articles, was a sum of money, which, *after the marriage, came into the hands of the husband; and part of this money was laid out in the purchase of the chattels demanded in the declaration. That the husband, in his lifetime, admitted and declared, that these chattels so purchased with the wife’s money, were her property; but he held possession of them during his life, and died in possession thereof; his wife took possession after his death. That, after the purchase of this property, there was still a balance of the wife’s money in the husband’s hands, which he held till his death; and by his last will and testament, besides giving her some property of his own, he bequeathed as follows— “I give to my wife Sally every species of property with the increase thereof which I received with her, also my negro girl Celia in lieu of 300 dollars of her money, which I have made use of.” And proof of these facts having been laid before the jury, the court, on the motion of the plaintiffs, instructed the jury, that if it should find from the evidence, that the chattels demanded in the declaration, were not the property of the defendant at the time of her marriage with their testator, nor the increase of any property that then belonged to her, nor acquired by her since the testator’s death, the plaintiffs, his executors, were entitled to recover the chattels in question, notwithstanding that the testator in his lifetime, admitted and declared them to be the property of his wife, the defendant, and that thej' were purchased after the marriage, with the money belonging to the wife before the marriage, and secured to her separate use by the marriage articles. The defendant excepted to this opinion, and appealed from the judgment to this court.
    Leigh, for the appellant.
    Johnson, for the appellees. -
    
      
       Husbaud and Wife--Marriage Articles — Maritai Rights. — The principal case is cited in foot-note to Charles v. Charles. 8 Gratt. 488, where all the cases that cite the principal case are quoted from. The principal case is also cited in Findley v. Findley, 11 Gratt. 437; Hinkle v. Uinkle. 3+W. Va. 164, 11 S. E. Rep. 997. See monographic note on "Husband and Wife" appended to (Jleland v. Watson. 10 Gratt. 159.
    
   TUCKER, P.

The judgment of the circuit court in this case, was doubtless founded upon the well established distinctions between the principles of law and equity, in relation 'x'to contracts between husband and wife, and to the attaching of the marital rights upon the property of the wife. Had a trustee been appointed by the marriage contract in this case, and the property been conveyed to him, a court of law, looking only to the legal title, would have pronounced that Faulkner’s executors could not recover the property, thus conveyed by the wife before marriage with the husband’s assent. And a court of equity would have sustained the rights of the wife, because that court recognizes the validity of these antenuptial contracts. But, as no trustee is interposed, the legal title was left in the wife; and, in the eye of the law the marital rights attached immediately upon the marriage. In equity, indeed, the interposition of a trustee, is no longer considered necessary for the wife’s protection from the operation of the marital rights; and hence it is very possible that the appellant’s title may prove best before another forum. These distinctions, however technical, must be preserved in order to prevent uncertainty and confusion. They have always been rigidly maintained; nor do I find a single case in which, at law, a marriage settlement has availed to secure the property of the wife, without the intervention of a trustee. Nor can the contract, however worded, operate a release at law, though it would be a good release in equity; for it is a first' principle as to releases, that they cannot operate upon a right not yet acquired; they always suppose a right in being. 10 Co. 48, a. The judgment of the circuit court must be affirmed.  