
    Perry and Patterson, Adm’rs vs. Gill, Ex'r.
    1.Gill made a conveyance of certain slaves to his wife, to take effect after his death, the said slaves at the time of such conveyance belonging to him and being in his possession: Held, that this deed was void and conveyed nothing to the wife.
    2. Where such conveyance of slaves in remainder by the husband as aforesaid, also contained a stipulation, that if she died before him she might dispose of such slaves by will, and the wife did so dispose of them and died: Held, said will passed no interest in the slaves. If, however, he had probate made of it and delivered the slaves in accordance therewith, the property passed, creditors being out of the question.
    3. Where, however, there was no probate made by the husband after the death of the wife and no delivery made, and the property by the effect of the instruments and the conduct of the husband in connexion therewith transferred the slaves to the appointees of the wife as the donees of the husband: Held, that the administrators of the wife with the will annexed, would not be entitled to a decree for the slaves or an account for hire, they having no interest except in their representative character and in the testamentary validity of an instrument of which probate has been made.
    Perry and Patterson, administrators of Sarah Gill, with the will annexed, filed this bill in the chancery court at Columbia, against Robert R. Gill, executor of Thomas Gill, deceased, praying, that certain slaves and other personal property might be decreed to be surrendered to them, and for an account of hire, &c. It appears that Thomas Gill, the father of ten children, at an advanced period of life, intermarried with Sarah, a childless widow, with several collateral relations. Said Sarah, at the time of the marriage, owned a negro woman Rhoda and her child George, and numerous articles of household furniture and some farm stock. Thomas Gill was likewise possessed of a considerable real and personal estate. The bill charges, that at the time of the marriage, there was a verbal agreement, that the property of the parties should be kept separate, and that each should have the power of disposing thereof, and that during the entire existence of the period of coverture, Mrs. Gill controlled the property which she possessed before marriage, paid her own debts, and acted in all respects in regard to her worldly affairs as a feme sole. These allegations, however, of the bill were denied in the answer, and though there was much proof tending to show that such was the fact, yet it was not fully and conclusively proved. On the 23d day of July, 1833, Thomas Gill executed a deed, which witnessed, that “the said Thomas Gill, desiring to provide for the comfort, support and maintenance of my said wife, Sarah Gill, after my decease, do hereby give, grant and confirm unto her after my death the following property, to wit, Rhoda and her child George, with said Roda’s future increase” (and some household furniture and farm stock) “to be hers at my death or her heirs or assigns for ever, guaranteeing further unto her the right, if she should die before me, previous to her death by will to devise to whom she will, all or any part of said property to go to her legatee or legatees immediately after her death; provided, and this gift is upon the express condition, that if she survive me and I die intestate, she is to lay no claim to any part of my other property, real or personal.”
    This deed of gift was proven by two subscribing witnesses on the 7th day of March, 1834, and registered on the 30th day of October, 1834. Thomas Gill made his last will and testament. He did not dispose of the property mentioned in the deed of gift further than may have been effected by the second clause, which is as follows:
    “Having heretofore by deed of gift given to my present wife Sarah Gill all the property she owned when we were married, I further bequeath to her one horse beast of the value of $45, and $15 in cash, to be paid her after my death by my executors, also such cupboard ware and knives and forks as she may claim as hers at my death.”
    This will was duly proven and recorded. On the 4th day of February, 1834, Sarah Gill, (Thomas Gill being yet alive) made her last will and testament. It was written at the house of her husband and with his knowledge. It does not appear, however, that on this occasion he either gave his assent to the making of this will or to the terms thereof or that he dissented therefrom. She directed that her negro woman, Rhoda and her two children, and the balance of the property claimed by her be sold and the'proceeds thereof equally divided amongst her five nieces. She also made a specific bequest of the horse willed to her by her husband and the $15 directed to be paid to her by her husband’s executors.
    She appointed Thomas Gill, Jr. and R. Bryant her executors. She died before her husband, and her will was proven and recorded according to law. Gill and Bryant renounced the executor-ship, and Perry and Patterson, complainants, took out letters of administration with the will annexed. The administrators made an effort to sell the property mentioned in the will, but failed so to do, no person being willing to bid therefor unless Thomas Gill would give title,ywhich he refused to do, alledging that he had once made a deed of gift to his wife for the property, and that he might get himself into difficulties by making deeds again to purchasers at the sale. He, however, interposed no obstacle to the sale, nexr did he express any dissatisfaction at the attempt to sell.
    The property remained in his possession till his death, and his executor, Robert Gill, took possession of it as the property of his testator. The administrators of Sarah Gill demanded the property of the executor of Thomas Gill, with an account of the hire, but the surrender was refused, and this bill was filed to obtain the property and an account for hire.
    It came on to be heard before chancellor Bramlett, at the September term, 1840, upon bill, answer, replication and proof, who being of the opinion that complainants were entitled to relief, decreed a surrender of the property and an account, &c. The defendant appealed to the supreme court.
    
      Cahal, for complainants.
    The first question is, whether a husband can make a gift to his wife without the intervention of a trustee. That it can be done is well settled. If there is no trustee, equity will hold the husband himself a trustee for the wife. See 2 Story’s Equity, 607, 8. Clancy 257,8, 9; 7 John. C. R. 57.
    The next question is, can a married woman make a will with the consent of her husband? It has been long and well settled that she can. 7 Bac. Abr. 301; 1 Wms. on Exrs. 40,1, 2.
    But if both these positions were as clearly against the validity of this paper as they are unquestionably in favor of it, the court could give effect to it as the will of Thomas Gill. A married woman may make a will of her husband’s property with his consent, and if he does not dissent before probate, it passes to the legatee. 7 Bac. Abg. 301: 1 Mod. 211: 2 Mod. 172: 12 Mass. 525: 2 Dess. 67.
    By the express terms of the deed of gift in this case, Mrs. Gill was authorised, in case of her death before her hushand, to make a will and dispose of the property. She made her will with the full knowledge of her husband. After her death it was proved, and though he knew all that was done, so far from dissenting, the evidence authorizes us to believe that he approved of it. It is surely too late now for his executor to repudiate all his testator sanctioned in his life-time.
    But put the will aside altogether and the complainants are entitled to the property in controversy. They are the administrators of Sarah Gill and are entitled to all her personal estate. For whose benefit they will be trustees, when the property comes into their possession, should have no influence on the decision of this case. When they get the property they are bound to mate distribution to those entitled. McKay vs. Allen, 6 Yer. 44. The husband is entitled to be appointed administrator of the wife, but if he die without having administered, the wife's next of Iun will be appointed in exclusion of the husband’s representatives. 1 Wms. on Ex’rs, 244 : 2 Wms. on Ex’rs, 911.
    
      Pillow, for defendant.
    The deed of gift to the wife is void to all intents and purposes. She was, while covert, incapable of taking and holding a general property in these slaves. If the deed had been made by a stranger, the property would have vested in the husband instantly. It secured nothing to the separate use of the wife. It did not exclude the husband from the control of it, and without this exclusion of the husband, no separate property can exist in the wife. Clancy, p. 265. This deed, securing to the wife no separate'property, but at the most limiting to her, after the death of her husband, a general property in remainder in the negroes, a property, which would at once, by virtue of the marital right vest in the husband, is wholly inoperative and cannot be set up by this court.
    The question next presented is, what was the effect in law, if Gill consented that his wife might make a will, disposing of, not her property, but property which was his? There are to be found in some of the old books some loose dicta saying, “it is said” that a married woman may with the assent of her husband make a will and dispose of all his property. They place it upon the ground that it is not her will but his will. These authorities do not refer to any adjudged case in which such a doctrine is established as law, but content themselves with saying, it is so said. But they even require the consent of the husband to the particular will at the time of probate.
    It is stated that a married woman may, with the assent of her husband, make a will of her chattels, which he has not reduced to possession. There she is disposing of that which is hers — is not yet her husband’s and cannot be, until he reduces it to possession. He is simply relinquishing his right to property to which he would be entitled as administrator. See Williams on Executors, p. 41, 2, 3. But the authorities go no further, (unless it be where some new consideration exists,) in authorizing a married woman to dispose of her husband’s property with his assent. See same authority. If she have separate property, she may dispose of it by will without his assent, and it may be admitted to probate without his assent. Clancy, p. 308. But the will of a married woman, not of her separate property, but by virtue of a power, cannot be admitted to probate without the assent of the husband, first had to the particular will in contest. Clancy, p. 308: 2 Atkins, p. 49.
    If the wife can, with the assent of her husband, make a will and dispose of his property, it must be upon the principle that she is executing a power of appointment created by his consent. There is no other principle upon which it can be placed. It will not do to say that the husband can thus confer all the powers of which the wife is deprived by law, and to say that such authorized acts of hers would have legal effect and operation as her will. It must be as I remarked, upon the principle of exercising a power of appointment created by the consent of the husband. But even then this will can have no effect. It cannot be acted upon and recognized by this court as her will, because the law requires, before it is admitted to probate, that the husband shall be examined as to his consent to the exercise of the power of appointment.
   Reese, J.

delivered the opinion of the court.

Thomas Gill in his life-time, with a view, as he alledges, to the comfort and maintainance of his wife after his death, and on condition that she should have no further interest in his estate, made a deed of gift to his wife in remainder of certain negroes and other property, but containing a stipulation, that if she died before him, she might dispose of the property by will, and her legatees should immediately thereafter enjoy the same. He afterwards made and published his will, and therein referred to the deed of gift and made for the wife some further provision. After this the wife made and executed in due form, a paper purporting to be her last will and testament and disposing of the property mentioned in the deed of gift to certain of her next of kin, and afterwards died, leaving the husband. He was cognizant at the time that his wife was occupied in the execution of the will, in an adjoining room; although it does not appear, that he had any precise knowledge of the contents of the instrument, other than he might be supposed to derive from the execution by him of the deed of gift; nor does he seem to have expressed any dissent from the. proceedings at that time. Probate was had of the instrument in the county court, and the executors therein named renounced', and letters testamentary with the will annexed were granted to the complainants. The husband did not take any part in the proceeding upon the probate; he gave no assent, and he made no opposition, if he knew of it. Conversations of his on the subject, proved in the record, seemed to imply both his belief that the property passed, and his willingness that it should go to those claiming it under the will. Under these circumstances the question arises, whether the complainants are entitled to the relief prayed. And first as to the deed. It is a mere voluntary conveyance, in remainder, of personal property belonging to and in possession of the husband, to the wife, and to her assigns, and the husband survived her. So, as a deed of conveyance, it avails nothing. 2ndly as to the will. 1. A wife can make a will of property which is hers, not yet reduced into the husband’s possession; but this with the assent of the husband, not in general, but to the particular will; and in such case, the assent avails nothing, unless he survive, it being but his waiver of his right of being her administrator. 2ndly for the separate property of the wife, a power of disposition by will exists independently of the assent of the husband. 3dly, where, by agreement before marriage, or subsequently, upon a valid consideration, a power of appointment by will is given to the wife, she may with the assent of the husband make a will; but even in such case as that, it is ruled by Lord Hardwick in the case of Henley vs. Phillips, “that though a feme covert has a power of disposing of a sum of money, or any other thing, by a writing purporting to be a will, yet after the wife’s death the proving it in the spiritual court will not give it the authority of a will, but it will still be considered as an instrument only, or an appointment of such sum, or other thing in pursuance of the power, and before it is proved in the Commons as a testamentary conveyance, the husband ought to be examined there as to his consent, nor till then, will it have the effect and operation ■of a will.” 2 Atkins 48. But the case before us is hardly that case. It is nothing but a voluntary authority, without consideration, given by the husband to the wife to make a will of a certain portion of his property. If it operates at allitis as his will. If he has probate made of it and delivers the property, then,-indeed, the property passes by his will, if it may be so called, creditors being out the question.

We have been anxious to sustain, if we could, the decree, rendered in this case, the more especially because we have a strong impression, that the effect of the instrument referred to, in connection with the-conduct of Thomas Gill at and after the making of the last one, is to transfer the property in question from Thomas Gill to the appointees of his wife, as his donees. But rthese complainants sue as administrators with the will annexed, and they have no title or interest, except as the same may be found in their representative character, and in the testamentary validity of the instrument of which probate has been made. The decree must be reversed and the bill dismissed, but without costs and without prejudice,  