
    
      Present — Chancellors Mathews and Rutledge.
    Catharine Megrath vs. Administrators of John Robertson and Ann Robertson.
    AUGUST, 1795.
    
    ciSB cm_
    decked book, vol. ii. p. 1.
    A w.fe become a o^trader^bv permission o'f ^Rhout decds;^ entitled to all her cai-mugs, as ner separate estate, citizen, cuti-ja“"a^j the persona C daughter, '^imsirml"° child, or fa-Tlier livmg: the real es-oui\wsn-md fey virtue of Weaty of1 Noi vember, ’94.
    
      John Robertson and Ann his wife lived together many years in Charleston. He carried on business, and acquired real and personal property, for which he took the iitles and bills of sale in his own name. His wife also carried on a separate business, bought and sold properly in her own name; and took the titles to the real estate, and the bills of sale for the personal estate, in her own name. There was no deed from the husband formally * consfatutmg tlie wife a sole dealer? nor any writing agreeing that the acquisitions of her industry should be her own separate property. But there was ample proof that dlo acted with her husband’s privity, acquiescence and verbal permission; and she always claimed ihe property acquired by her as her own. Some of the witnesses proved he acquiesced merely for peace sake, as she was of a violent temper. But the majority of respectable and well infoi*-me(* 'witnesses stated that for many years she had acted, and been considered a sole trader; was active and iudus--¡¿dous, and she made great profits in her separate dealings, and bought property for herself. That her husband knew and aequiesced in her conduct: that he sometimes borrow-e<^ money 8*om her, and returned it. One of her debtors offering to pay the husband, he told him that he must go anq settle with her, as she acted for herself, and had the note; which was accordingly done. The husband would sometimes caution her against bidding too much for property at auctions, but she repelled his interference, and said tlie money was her-own, and she would do as she pleased with it; to which he replied that was no reason she should ruin herself. In short the evidence was conclusive that she acted constantly, for many years as a feme sole, or US' a solo trader; had a clerk to keep her accounts, and took titles in her own name, with the privity and acquiescence of her husband. But no writing could ever be produced of any agreement to that effect. John Robertson died intestate leaving his wife alive; but no children. She administered on his estate, made an inventory and sale of it. She died not long after, intestate, leaving a considerable property, real as well as personal: and the defendants administered on her estate, as well as on John Robertson’s. The administrators returned an inventory of her estate, of cash and other personal estate, to the amount of 2971Z. But the defendants thought themselves bound to submit the point to the court whether the property thus acquired by her, should he considered as her seperate estate; as there was no evidence of the existence of any deed by the husband constituting her a sole trader, or of any written agreement that she should hold and enjoy as a separate estate what she had acquired by her industry. The complainant was proved to be the mother of Mrs. Robertson, and she filed this bill to have an account of her daughter’s personal estate, and to have the titles of her r eal estate delivered up to her. Claiming us the nearest relation entitled to take according to the laws of this state, the daughter having died intestate without leaving alive either husband, children or father. The defendants submitted to the court that as Mrs. Megrath the complainant was an alien, she could not take or hold the landed estate.
    Mr. Ford, for complainant
    contended, that the statute of 1744 (public laws, 190,) prescribes no particular solemnity by which a wife is to be made a sole trader: but recognizes her being such by tacit consent. And if she may he sued as a sole trader according to the provisions of the act, she may hold property to answer the debt; the contrary would be absurd. See 2 Eq. Cas. 133, 138. Lister vs. Lister, 2 Vern. 68; and Slanning vs. Style, 3 P. Wms. 334, 7, which is a very strong case. A tacit assent shall sometimes he set up against the wife. It ought therefore to be allowed against the husband. 1 Atk. 269. Gifts between husband and wife will be supported in equity though void at law. See 2 Atk. 271. If the purchases be supposed to have been made jointly to the benefit of the husband and wife, they survived to the wife, on the death of her husband. Glioses in action survive to the wife. The husband might have disagreed and .vacated the wile’s right, but if he does not and dies, it survives to hex*. 2 P. Wms. 496.
    General C. C. Pinckney, for defendants,
    insisted that acquisitions made by the wife enure to the husband. If a bond be given to the wile, the husband may sue alone. 2 Atk. 207. See 3 Atk. 72, and 1 Eq. Cas. abr. 61. That the rule of law being clear, as to the husband’s lights, any exception must be made out by the clearest pi’oofs, and the parol evidence however positive cannot establish the husband’s agreement; to give up the marital rights. There must be a written agreement; or a deed to constitute her a sole tradci*. The acquisition of the wife therefore in this case became the property of the husband; and the purchases being made in the name of the wife does not alter the right: For she in that case must be considered a trustee for the husband. See 1 Eq. Cas. abr. 380. 1 Bla. Com. 442, 3. 1 Bac. 290.
   The coui't after taking time to deliberate, delivered the following decree:

This is a case of a new impression: the only case in ^ie boohs resembling it is that of Slanning vs. Stile, S P. Wins. 334, 337, and that is by no means as strong as this. The marital rights were and are very strong, and give absolute power to the husband over the personal property of the wife. In latter times they have been somewhat relaxed under written agreements or usage. There are three questions here. 1st. Whether John Robertson, one of the deceased, constituted his wife a sole trader. 2d. What benefit resulted to her from it? 3d. What portion of the estate of Ann Robertson (the wife of J. Robertson) goes to the complainant who was her mother ? Upon a full review of the evidence (which was very ample) relative to the acts of John Robertson and Ann his wife, it is evident that John Robertson permitted her to act a sole dealer, and to make contracts, and to purchase, and to sell on her own account, and to take titles in her own name. It is a maxim that no man shall be presumed to be ignorant of the law. There is no law here defining what is a sole dealer, or how a feme covert can be made a solo trader; nor is there in England. The custom of London authorises it: and a clause in our attachment act recognises the right in this country. See the preamble, also the 11th section, and the act of 1712. Rut there is no particular mode pointed out. If the husband permits his wile to act as such, he relinquishes! the control he had at common law. The case before the court made out by the proofs, is the strongest possible, next to producing a deed from the husband, authorising the wife to act as a sole trader; and establishes her power so to act. 2d. As to what benefit resulted to her from it? She became sole mistress of the property which she acquired in the character of a sole trader, free from the control of her husband. In this case he died first: she administered on his estate, and died soon after; whereupon the defendants administered on both estates. The difficulty is to discriminate the property. What was brought home to the house must be considered the luis-bands, unless shewn to be hcr’s by documents, deeds, or employed in her trade; and except her wearing apparel. This must be the rule to discriminate. The inventory of her husband's estate may assist, as done on oath. As to the lam], the titles were made to her of her houses; to him of his; they are conclusive. As she survived her bus-band, who died without children, she is entitled to the moiety of her husband’s estate, under the statute of 1791, besides her separate estate as a sole trader. 3d. Complainant is entitled as mother of Ann Robertson to the whole of her personal estate, and to the real if the British .treaty now pending, be ratified by our government. Decree for complainant: Let the accounts be referred to the master. Costs to be paid by defendants.

[The treaty of 19th November 1794, commonly called Mr. Jay’s treaty was then under discussion in the senate of the United States. It was soon after ratified, and became the law of the land. By the 9th article of that treaty it was agreed that British subjects who now hold lands in the territories of the United States, (and American citizens holding in Great Britain) shall continue to hold them, according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the sanie,’’ &c. It was under this treaty that Mrs. Megrath who was a British subject, was decided to be entitled to the real estate of Mrs. Robertson her daughter, who died without leaving alive husband, or children, or father. She took the estate under the regulations of our statute of 1791, which allows mothers to inherit real, as well as to take personal estate.] 
      
       See besides Slanning vs. Style, the case of Calmady vs. Calmady, 11th Viner, page 181, pl. 21.
     