
    Wilks vs. Fitzpatrick, et al.
    
    In order to bind a wife by a transfer of a legacy due her she must be privily examined in court touching her consent to such transfer.
    The fact that a wife joins her husband in a transfer of a legacy, for which her husband receives a valuable, consideration, does not make such transfer valid against her on the ground that she participates in a fraud. The transferee is bound to know what legal rights he acquires, and what rights the law p ermits her to set up.
    John Wilks made his will in Maury county, appointing his sons, Wm. Wilks and John Wilks, his executors, and died. Pie gave the whole of his property to his wife during her natural life, and provided that at her death all of his property, consisting “of negroes, stock of all kinds, household and kitchen furniture, farming utensils, &c.” should be equally divided among his children and grand-children, as follows: “To Polly Learin, wife of John Dearin, one share; William Wilks one share; John Wilks one share; Polly Moore, wife of John Moore, onfe share; Nancy Holt, wife of Jeremiah Holt, one share; to his grand-children, William S. Wilks and Jane A. Wilks, one share, jointly; and one share jointly to his grandchildren, Malinda J. Bills and Blackstone H. Bills.” On the 20th day of January, 1836, John Dearin and his wife, Polly Dearin, executed a deed to Morgan Fitzpatrick in the following words:
    “This indenture, made and entered into this 20th January, 1836, between John Dearin and Polly Dearin, his wife, both of the county of Maury and State of Tennessee, of the one part, and Morgan Fitzpatrick, of the same county and State, of the other part, witnesseth, that for and in consideration of the sum of three hundred and eighty-five dollars to them in hand paid, the receipt of which is hereby acknowledged by them, the said John Dearin and his wife, Polly Dearin, have bargained, granted, sold, aliened, enfeoffed and confirmed, and by these presents do bargain, grant, sell, alien, enfeoff and confirm unto the said Morgan Fitzpatrick, his heirs and assigns, all the estate coming to them of and from the estate of John Wilks, deceased, late of Maury county and State of Tennessee, as expressed in his last will and testament, the same being one-eighth part of said estate, now in the hands and possession of Jane Wilks, relict of the said John Wilks, deceased; the estate consisting of negroes, stock, household and kitchen furniture, farming utensils, wagon, harness, &c. to have and to hold, and to hold the above named and bargained estate to the only proper use, benefit and behoof of him, the said Morgan Fitzpatrick, his heirs and assigns, for. ever, with all and singular the benefits arising from the same; and the said John Dearin and his wife, Polly Dearin, for themselves, their heirs, executor’s and administrators, covenant and agree to and with said Morgan Fitzpatrick, his heirs and assigns, that they will forever warrant and defend the title of the said property and estate, and every part and parcel thereof, to the said Morgan Fitzpatrick and his heirs and assigns, against the lawful claims and demands of all and every person or persons whatsoever setting up or pretending title thereto, or to any part or parcel thereof, either in law or equity. In testimony whereof, we, the said John Dearin and Polly Dearin, have hereunto subscribed our names , ™ . , , , , ana affixed our seals the day and year above ■written.
    John Dearin, [Seal.]
    Polly Dearin, [Seal.]”
    On the 20th day of February, 1836, this deed was duly proven, by the oaths of two subscribing witnesses thereto, before the clerk of the county court of Maury county. The debts of the estate were discharged by a sale of a portion of the property, and the widow kept possession of the balance till her death, which occurred in the month of February, 1838. An agreement was entered into by the parties interested that a division of the property should take place. This was partially executed, the negroes only being divided. A negro, Bob, was assigned to Fitzpatrick, and delivered over to him, as entitled thereto, by virtue oí the contract with John Dear-in and his wife, Polly, above set forth. Difficulties ensuing in the division of the balance of the estate, a final adjustment was defeated.
    William Wilks, executor, and Malinda J. Bills and Blackstone H. Bills, minors, suing by their guardian, filed their bill in the chancery court at Columbia against John Wilks, John Dearin and his wife, Polly Dearin, Morgan Fitzpatrick, Berry Moore and wife, Patsy, Jeremiah Holt and wife, Nancy, William S. Wilks, Thomas Robly and wife, Jane S., Joseph Edmondson and wife, Jane A., praying for a general adjustment and distribution of the balance of the estate, according to the rights of the parties.
    The defendants answered the bill separately. John Dear-in, in his answer, concurred in the propriety of an adjustment. and distribution of the balance of the estate; admitted that he had received a portion of the estate from the hands of complainant; that he had sold the balance of his interest in the estate to Morgan Fitzpatrick; stated that he had no further claim upon the same, and set up an alleged interest “in right of his wife, in the estate of Jane Wilks, the widow of John Wilks, deceased.” Polly Dearin states in her answer that “after the death of the widow, the negroes of the estate of her deceased father, John Wilks, were divided amongst the legatees and their assignees, by consent of parties, Morgan Fitzpatrick receiving negro boy, Bob, as the portion of respondent; that there was still a balance of the property undivided, in which she understands said Fitzpatrick claims the share of respondent; that she had filed her bill against him to have the transfer of negro Bob set aside, and to have the balancé of the property claimed by Fitzpatrick allotted to respondent; that she is entitled to a share of said property as oné of thé legatees; that the same had accrued to her during her marriage with her co-defendant, and that although he had sold said slave, no provision out of the legacy had been made for her, and insisted that the court should protect her rights in this suit until her suit against Fitzpatrick should settle their rights.”
    Fitzpatrick, in his answer, set up his claim by deed,- as above set forth, to the entire legacy left by the will of John Wilks, deceased, to'Polly Dearin. A receiver was appointed at the March term, 1839, with instruction to sell the property undivided and report the proceeds, ánd pay thé same into the hánds of the clerk and master, which was done, the amount of the same being six hundred and sixteen dollars and eight and one-fourth cents-,
    At the September term, 1839, chancellor Bramlett, being of the opinion that the claim set up by Morgan Fitzpatrick to the interest of Polly Dearin in the estate of John Wilks, deceased, under the transfer filed and exhibited, was void, ordered and adjudged that the said transfer be held for nothing, and that the balance of the estate on hand be distributed to the respective parties, in pursuance of the terms of the will, and that each party pay his own costs. From this décree Fitzpatrick alone appealed to this court,
    
      Frierson, for complainant.
    
      XJaJial and Pillow, for Fitzpatrick.
   GtREEn, J.

delivered the opinion of the court;

This bill is filed by one Of the executors Of John Wilks, deceased, against his co-exbcutor and the legatees, for a settlement and final adjustment of the estate of his testator, according to the rights of the parties. Morgan Fitzpatrick, who is made defendant, claims the legacy of Polly Dearin,, (who, together with' her husband, John Dearin, are also defendants,) by virtue of a sale and transfer to him signed and gea]e¿ hy John Dearin and his wife, Polly, on the 20th of February, 1836. Polly Dearin insists that she cannot be prejudiced by the execution of the transfer to Fitzpatrick, and that she is in equity entitled to a settlement, for her use, of the legacy due from her father’s estate. The court decreed the portion of Polly Dearin to her, disregarding the transfer to Fitzpatrick. Fitzpatrick alone appealed to this court. It is well settled, that if a husband, or any person claiming in his right, seeks to reduce into his possession the wife’s legacy or distributive share, a court of chancery will make a provision out of it for her. Clancy on Rights, 441, et seq. 10 Yerg. 559: 2 Story’s Eq. 1403, et seq. But it is said that in this case the wife has assigned away her interest. The assignment produced can have no obligatory force upon the wife, as it was made without those solemnities courts of equity require in such cases. In order to bind a wife by a transfer of a legacy due her she must be privily examined in court touching her consent to such transfer. Clancy on Rights, 444: 4 Hay. 19: 3 Cowen’s Rep. 599: 3 Ves. 469: 4 Ves. 18. It is insisted she was guilty of a fraud in joining her husband in the transfer and then sotting up her equity against it. If this were so, the wife never could be protected in her rights; and all her deeds, while covert, though void in law, would be set up against her on the ground of fraud. But there is no pretence for the charge of fraud; no misrepresentation was made to Fitzpatrick by her, and he was bound to know what legal rights he acquired by the transfer, and what were the rights the law permitted him to set up against it. The decree will be affirmed, with the exception that the share of Mrs. Dearin must be paid to a trustee for her use. The costs will be paid as directed in the decree below, and the defendant, Fitzpatrick, will pay the costs of this court,  