
    Eloisa C. Cameron vs. Dugal A. Cameron et al., Executors of John Cameron, deceased.
    A wife has not such an interest in the personal estate of her husband, as that an absolute and irrevocable, though merely voluntary deed thereof, executed by him to his children, even by a former marriage, can be considered a fraud on her rights; nor will it be set aside at her instance.
    Therefore, where C. executed a deed of trust on personal property to M., as trustee for the use and benefit of C.’s two sons, and reserved to himself the possession and control of the property during his own life; it was held, that the deed of trust, though voluntary, was absolute 'and irrevocable, and was not therefore a will in disguise ; and that on the death of C., his widow was not entitled to any, interest in the estate conveyed by the deed of trust.
    'On an application for dower in personalty, if it appear that the testator did not own the property in which the dower is sought, at the time of his death, it is the duty of the probate court to refuse to allot the dower.
    On appeal from the probate court of Franklin county; Hon. James M. Jones, judge.
    Eloísa C. Cameron filed her petition in the probate court, alleging that she was the widow of John Cameron, deceased, who died in December, 1844, leaving a will; whose executors were Dugald R. Cameron, since dead, Dugal A. Cameron and John P. Stewart, all of whom qualified; that by his will, the testator attempted to make provision out of his property for her, but within the time limited, she renounced the will; that besides his lands, the testator left about ninety slaves and other personalty; for none of which, nor the proceeds of their labor, had the executors accounted. That Dugald R. Cameron and Franklin Cameron, a minor, were the only children of the testator; the former being dead, she claimed her distributive share of the personalty according to the statute.
    The executors answered the petition, denying that any slaves or other personalty of their testator, not accounted for, had come into their possession. They state that in his lifetime, the testator conveyed these slaves and other property to John Montgomery in trust by deed, of which the following is the substance, viz.:
    “Know all men by these presents, that John Cameron of the County of Franklin and State of Mississippi, for and in consideration of the uses and trusts herein more fully stated, and of the sum of five dollars to me in hand paid by John Montgomery of the County of Madison and State of Mississippi, the receipt whereof is hereby acknowledged, have this day bargained, sold and delivered, and by these presents do bargain, sell and deliver unto the said John Montgomery, the following named negro slaves, to wit: Henry, &c., &c., (here follows a description of the property) to have and to hold unto the said John Montgomery, to and for the uses, purposes and trusts following, to wit: to permit the said John Cameron to use, possess and control the said property, and the proceeds and natural increase thereof during my natural life, without any hindrance, claim or interference from him the said John Montgomery; secondly, at my death, or as soon thereafter as the crop growing at my death shall be gathered and disposed of, to deliver and convey by proper deed for that purpose, the lot of slaves mentioned, (here describing certain parts of the property previously conveyed) to my sonDugald R. Cameron; and further, thirdly, to take possession of and manage the lot of slaves, (here describing another part of the property previously conveyed,) to my son Franklin; fourth, if either of my said sons shall die without issue at the lime of his death, the whole property above-mentioned shall be conveyed and delivered to the other; but if issue be living, the conveyance shall be to such issue; fifth, if both of my sons shall die without issue living at the time of their death, in my lifetime, then I resume the power and authority in that event, to appoint by deed or will, the uses, purposes and trusts, to which said property shall be applied : but in case no appointment be made, then the said property shall be held by the said John Montgomery, in trust, for the use and benefit of my right heirs forever. In testimony whereof, &c.”
    Upon hearing on the petition and answers, the probate court being of opinion that the answers presented a complete bar to the petition dismissed it, and the petitioner appealed.
    
      J. Marshall, for appellant,
    Contended, 1. That the executors could not set up the deed of trust, for they were not parties to it, if they were in possession of the property they claimed through • the testator, and were bound to admit the widow’s right. Wooldridge v. Wilkins, 3 How. (Mi.) R. 360; Randolph v. Doss, 3 lb. 205; Doss v. Armstrong, 6 lb. 258.
    2. If the proper parties had been before the court, the probate court had no power to adjudge the question of title; it should have allotted the dower, and let the other courts, having jurisdiction, adjudge as to the ownership. Holloman v. Holloman, 5 S. & M. 559 ; Farmers and Mechanics Rank of Memphis v. Tappan-, Ib. 112; Ware v. Washington, 6 S. & M. 737; James v. Rowan, lb. 393.
    3. As against the executors and heirs, the widow is entitled to dower in mortgaged property. Whitehead v. Middleton, 2 How (Mi.) R. 692; Rutherford v. Manee, Walk. 370; Wool-dridge v. Wilkins, 3 How. (Mi.) R 360.
    4. The decision of the probate court went to the extraordinary length, that the property conveyed by the deed was not John Cameron’s when he died. The probate court had no right to adjudge the question; it had no power to decide it. The widow had a right to her dower, and it should have been granted; and the contest as to the validity of the deed, can arise in a court of adequate and full jurisdiction.
    
      Chilton and Tompkins, for appellee.
   Mr. Justice ThacheR

delivered the opinion of the court.

Eloísa C. Cameron filed her petition in the probate court of Franklin county, for an allotment of dower in the personal estate of her deceased husband. The answer of the executors sets up, that the husband, a short time before his decease, made and executed a deed of trust of the property in question to John Montgomery, as trustee, for the use and benefit of the grantor’s two sons, Dugald and Franklin.

In a case of this kind, the only inquiry need be whether the deed of the husband is absolute and irrevocable or not. It is the undoubted right and privilege of a husband to dispose of his personal estate in any manner he thinks proper in his own lifetime, and to thus cut off his widow from dower in such property ; and a voluntary conveyance will be good against the claims of the widow. In the case of Lightfoot's Executors et als. v. Colgin et ux. 5 Munf. 42, which is a case almost in every respect like the one at bar, for in the present case the deed of trust is voluntary and irrevocable; it was held, that a wife has not such an interest in that portion of the personal estate of her husband, to which she may be entitled in the event of his dying intestate, or leaving a will which she may renounce, as that an absolute and irrevocable, though merely voluntary deed thereof, executed by him to his children, even by a former marriage, can be considered a fraud on her rights, or be set aside at her instance; and, that a deed of trust, if not revocable by the grantor, is not to be considered a will in disguise, on the grounds that nearly all his personal estate is thereby conveyed, and that he reserves to himself the possession and control of the property during his life. The reasoning of the court establishing these principles is clear and conclusive.

It having been apparent to the probate court that the claim of dower did not lie in the property in question, the bill was properly dismissed as to it.

Decree affirmed.  