
    Smith v. Smith's Administrators.
    Decided, March 31st, 1820.
    I. Deed of Gift — Construction—Wife’s Separate Estate. —A deed of gift ol slaves to a married woman, “to her own special use, and afterwards to her heir or heirs;” with a clause providing that, "if she shall die withont heir or heirs, or without a Will disposing of the said slaves and their Increase, they shall return to the donor or his heirs,” conveys the property to the separate use of the wife, so that, after the death of the husband, she is entitled to hold the slaves and their Increase against his administrators.
    William A. Gregory and John Taliaferro administrators of John Smith, jr. deceased, brought detinue, for two slaves, against Elizabeth H. Smith, in the Superior Court of Spottsylvania County. A case was agreed by the parties, stating, that the slaves in the declaration mentioned were the property of Jane Johns ton on the 2d *day of August 1807 ; and that she on that day conveyed them by Deed to Elizabeth H. Smith the defendant, then the wife of John Smith the plaintiff’s intestate ; which Deed was in the following words and figures :— Know all men by these presents, that I Jane Johnston of the Town of Fredericksburg and State of Virginia, for and in consideration of my natural love and affection I bare towards my daughter Elizabeth H. Smith, and for the sum of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, hath given, granted and confirmed, and by these presents do give, grant and confirm unto the said Elizabeth H. Smith two negroes, Lucy andMary herchild, to have and to hold to her own special use, and afterwards to her heir or heirs. Nevertheless, if the said Elizabeth H. Smith should die without heir or heirs, or with a Will disposing of the said Eucy and Mary with their increase, then and in that case, the said negroes Eucy and Mary with their increase to return to me or my heirs, as if this conveyance had never been made. In Witness whereof, I have hereunto set my hand and seal this 2d day of August 1807. Jane Johnston.” Teste, Wm-Jackson, Edward Penn, Martha homax.”
    It was farther agreed, that the fee simple value of the said slaves was, $350 for Eucy and $250 for Mary ; and that their value for the life of the defendant was $120 for Eucy, and $80 for Mary : that, if the plaintiffs were entitled to recover, they were entitled to $60 damages for the detention of said slaves ; that the intestate of the plaintiffs was in possession of them from the time of the conveyance aforesaid until his death, which happened in January 1815 ; that the defendant had been in possession of the same ever since the death of the said John Smith ; and that the defendant had no issue.
    The Court gave judgment for the plaintiffs, for the slaves, if to be had ; if not, for their fee simple value ; to which a Supersedeas was awarded by a Judge of this Court.
    “'Stanard for the plaintiff in error. The plaintiffs in the Court below had no title to the property; inasmuch as the conveyance was to the special use of the defendant, and the slaves were to be subject to her disposal by Will. This gave her a separate property in them, «exonerated from the marital rights of her husband ; and, therefore, at his death, no right vested in his representatives. The doctrine, in cases of this nature, has been settled on liberal principles, to carry into effect the intention of the donor without regard to technical forms,  If the husband had any title, it was that of a mere trustee, with the beneficial interest to the separate use of the wife ; and, as such trust arose from the necessity produced by the coverture, it ceased at his death, and was not transmissible to his representatives : and, even if it vested in them, it could not be set up against the cestuy que trust, 
    
    This is not a question between a wife and creditors, but only between her and the administrators of her husband’s estate. In the case of Boyd and Swepson v. Stainbach and others, 5 Munf. 305, it was decided that property conveyed to the wife’s separate use is not assets in the hands of the husband’s administrator, but only claimable by his creditors. If creditors were to sue in this case, it might be a question, (which is not now necessary to be decided,) whether they could take more than the life interest of Mrs. Smith, which alone could be vested in her husband by virtue of his marital rights.
    Bouldin contra.
    It is manifest that, under the deed, Mrs. Smith took a fee simple estate, which therefore vested in her husband, as soon as he obtained possession of the slaves.
    Mr. Stanard construes the words, “special use,” in the same manner as separate use. The cases referred to by him, (as far as my Eibrary enabled me to refer to them) are cases arising under Wills. I have found none where such loose and informal expressions have operated in deeds. The words “special use” might be intended to signify that the slaves were to be used as house-servants. In order to give a wife property, separately from *her husband, a separate use must be expressly declared in the deed. In this deed there are no trustees, to intercept the marital rights of the husband. In Robinson v. Brock, there were trustees. The circumstance that trustees are not appointed, affords an argument to prove that a separate estate in the wife is not intended..
    The separate estate of a wife is the creature of a Court of Equity : I have never known it set up in a Court of Eaw. If a Bill in Equity were resorted to, the Court could judge of all the circumstances, and consider whether the wife’s claim ought to be sustained ; or the property left in the hands of the administrators, which would be decreed if creditors were to be satisfied.
    Stanard in reply.
    The Deed in this case was written by the donor herself, and ought to be construed with the same liberality as a Will. Her intention is manifest. — But all the cases are not of Wills. That of Robinson v. Brock was on a Deed ; and there the Court did not permit the legal estate of the trustee to be interposed to prevent the cestuy que trust from recovering the property at law.
    
      
       Wife's Separate Estate. — See monographic note on “Husband and wife” appended to Cleland v. wat-son, 10 Graft 159. The principal case is cited on the subj ect in Nixon v. Rose, 12 Gratt. 429; Coatney v. Hopkins, 14 W. Va. 359.
    
    
      
       Note. It is so in the transcript of the Record: the words, “without a will,” seem to have bee intended. — Note in Original Edition.
    
    
      
       3 Atk. 303 — 399, Darley v. Darley; 5 Ves. jr. 517; Ibid. 545; 9 Ves. jr. 369, Rich v. Cochran; Prects. in Ch. 225; 1 Vezey sen. 303; 1 Ves. jr. 46, Pettiplace v. Gorges; 8 Ves. jr. 589, Roach v. Haines.
    
    
      
       1H. and M. 212, Robinson, v. Brock.
    
   JUDGE ROANE

delivered the Court’s Opinion as follows; — •

Upon the evident intention of the donor, in the deed in the proceeding mentioned, and on referring to the authorities, the Court is of opinion that the negroes in question were conveyed to the separate use of the appellant. The Judgment is therefore to be reversed, and entered for the appellant.  