
    Jones ag’t Langhorn
    S. C. Jeff. 37.
    Barradall for the Pit.
    The Deed is undoubtedly void as to the Wife and so it is meerly the Act of the Husband The Question then is solely this Whether the Husband in this Case could dispose so as to prevent any Title or Interest from surviving to his Wife and I conceive clearly that he might It is agreed that the Slaves in this Case are to be considered as Chattels the Devise to the Wife being before the Act making them a real estate I shall then consider the Interest accruing to the Husband in the Wife’s estate which is different according to the [51] Nature and Quality of that Estate In her Lands &c he acquires a Freehold during the Coverture or an Estate for life if there is issue between them In Chattels real he acquires a Property and a Power of disposing in his Lifetime but not by Will If he dies first without disposing they survive to her If she dies first they survive to him 1 Danv. 705. 8. 1. Inst. 351 a. But as to Chattels personal Marriage is an absolute Gift of all such in Possession whether the Husband Survive or not Co. Lit. 351. b. And this I presume whether the Wife has an absolute or only a temporary or qualified Property for all the Right & Interest of the Wife be it more or less is by the Marriage transferred to the Husband and vests in him by Way of Gift There is no Case in Law that makes any Difference Nor is there any in the Reason of the Thing If the Husband has a right to the greater by the argument a majori ad minus he has also a right to the less For that Omne Majus continet in se minus is a Rule of Law as well as an Axiom of Philosophy certainly it must appear absurd that the Law should give the Husband Chattels in which the Wife has an absolute Right and not those in which she has a lesser Interest The Husband’s Right as to Chattels personal was always the same And as to Chattels real it has been carried further in later Times than formerly for he may now dispose of the Trust of a Term as was adjudged about Micha’s 1680 in the House of Lords, in Sr. Edw’d Turner’s Case 1 Vern. 17. which is the first case of that sort the Law being otherwise before But since has been always held according to that Determination 1 Vern. 18. 2 Vern. 270. Tudor v. Samyne. Now'whether the Interest of the Wife be only for Life or in the whole term it will certainly make no Difference Whatever Interest she has the Husband has a power of disposing and if in Chattels real surely in Chattels personal too in which he acquires a more absolue Right by the Marriage.
   In Detinue upon a special Verdict the Case was A woman possessed of Slaves devised to her during Life and after her Death to another marries and joins with her Husband in a Deed of Mortgage of these Slaves for 99 years the Husband dies this Action is brought by the Mortgagee ag’t the Wife for Recovery of the Slaves.

If 1 Inst 351 be objected that the Husband shall not charge his Wife’s Chattle real tho’ he may dispose but if she survive she shall hold it discharged That rule does not hold in Chattels personal as this Case is Besides all that is meant by that is that he shall not charge her Term with a Rent 1 Ro. Abr. 344. 5. & 346. 2. But I question [52] Whether the Law be so at this Day the Husband’s Power over the Wife’s Term being enlarged sine Coke wrote in the Instance just now mentioned and it is certainly absurd a Man should have a Power of disposing and not of charging Then our Case is different too Here is a Mortgage and the Estate and Interest become absolute in the Law for the Term by nonpayment of the money and only an Equity of Redemption left in the Mortgagor .

Randolph & Deft.

Slaves here are to be considered as Chattels Now the Property of a Chattle cannot be divided so as that Part of the Property shall vest in one and Part in another •But when a Chattle is given to one for Life with Remainder over the Devisee for Life has only the Use and the Property vests in the Remainder man Tis upon this Distinction alone that Remainders of Chatties are allowed for if the Property vested in the first Devisee the Remainder over must be void because the Gift of a Chattel for an hour is a Gift forever That the Wife here having only the Use and no Property this Use vested in the Husband only during his Life but he had no Power of disposing so as to conclude the Wife after his Death tho’.the Disposition might be good during his Life and cited 1 Inst. 351. a. where a difference is taken between a Property and a bare Possession as Where a Woman has Goods as Bailee or Ex’trix this bare Possession is not given to the Husband by the Marriage He also cited Mor. 522. Thomson' v. Butler where the Husband’s Release of the Wife’s Annuity was adjudged no Bar after his Death, And mentioned the Case of Brown v. Willis in April 1731. in this Court which he said was in Point He sayed it would be a hard Case upon Women especially Widows marrying second Husbands if they happen to survive That it would be inconvenient too since the Slaves might be taken in Ex’on for the Husband’s Debts or sold by him to the Prejudice of those in Remainder To which it was replied That it was true in the Language of our Books by the Devise of a Chattel for Life with Remainder over the first Devisee has [53] only the Use and the Property vests in Rem’rman That this this [sic] Distinction was kept up upon the Ground of that Old Rule of Law The Gift of a Chattel for an Hour is a Gift forever but in Effect the first Devisee has a Property during Life having all the Marks of Ownership except that of selling absolutely Whatever profits can be made are his he may maintain Trover and even dispose' during Life and certainly this is something more than a bare Possession which is the case 1 Inst. 351. and so nothing like this.

The Use here is coupled with an Interest and wherever there is an Interest there must be some Degree of Property for what is Property but a Power of using and disposing which a Devisee of a Chattle for Life has during a Life Certainly then such Devisee has a qualified Property Nobody will dispute but he may sell during Life Marriage is an Alienation a Gift in Law equivalent to any Alienation in Fact It is agreed the Slaves here vested in the Husband during Life if they vested at all they must for the whole Interest the Wife had it being all transferred by the Marriage

It is absurd to talk of the Hardships upon Women unless it be a Hardship that any Thing should vest in the Husband by the Marriage Is it harder that a lesser Interest should vest in the Husband by the Marriage than a greater The Argument from Inconvenience is full as ridiculous since since Chattels so taken may as well be taken for the Debts of the Wife as for the Debts of the Husband or sold by her in prejudice of the Remainderman It may be an Argum’t against allowing such Devises at all but is none ag’t the Husband’s Right in such Case.

Judgment for the Deft, per totam curiam praster Lightfoot &. Tayloe.

A like Case between Clements & Walker was argued in April 1739. And the same Judgment given fr Randolph, Grymes, Carter Diggs & the Governor. Custis & Robinson con.  