
    
      James R. Fryerson, adm’r. of John G. Fryerson, v. Julia Fryerson.
    
    Such a thing as a grant of a personal estate to the wife, by the husband, is unknown at law.
    At law, the wife’s legal existence is merged in that of the husband, and she can have no separate legal estate.
    
      
      Before O’Neall, J. at Sumter, Spring Term, 1849.
    This was an action of trover for the recovery of the value and hire of a negro man named Washington. There was no doubt that he had once been the property of the intestate, and still was, unless the deeds, under which defendant claimed, had the effect to divest his title. The first, bearing date the 2d of April, 1841, purports to convey Washington, by John G. Fryerson, to his wife, Agnes Fryerson, for her support during, her life, and at her death to be, by her, disposed of by gift or bequest. The 2d. bearing date 3d April, 1841, purports to be articles of agreement between John G. Fryer-son, his wife Agnes, and John L. Elwell, by which it was agreed that the property of the said John G.' and Agnes should be placed in Elwell’s hands, to be, by him, managed and controlled for the support of the said John G. and Agnes during their lives, under the care and trust of William Hilton and Joseph Sessions. These two papers were executed the same day. Elwell never had any actual possession under the agreement. The slaves, including Washington, were placed in the hands of William Hilton, who managed them until the death of John G. Fryerson in ’43. His widow died soon after. By her will, she bequeathed Washington to Laurel L. Fryerson, whose widow the defendant is, and who has the slave in possession. The conversion was admitted.
    The Circuit Judge held, and so instructed the jury, that notwithstanding the deeds, the legal estate was in the intestate, subject, it might be, to a trust for his own support, and that of his wife, during their respective lives: but, on the death of his wife, that trust was discharged, and the legal estate, unincumbered, was in his administrator. For- the deed to his wife could have no effect in a law Court.
    The jury found for the plaintiff, the value of the slave and hire.
    The defendant moved for a new trial, on the grounds:
    That his Honor erred in instructing the jury that the legal right to the negro Washington reverted to the estate of John G. Fryerson, upon the death of the said John G. Fryerson, and his wife, Agnes Fryerson; and that the deed of the said John G. to the said Agnes, was ineffectual in law, to transfer to her any right to the said negro, available at law.
    Whereas: 1st. That the said deed, taken in connection with the deed entitled articles of agreement between John G. Fryerson and his wife, Agnes, of the one part, and John L. Elwell on the other part, which it was proved were executed together, and the delivery of the said negro to the trustee, William Hilton, in pursuance thereof, did amount, in law, to an effectual transfer of the title of the said negro, and the same could not revert to his estate.
    
      Bouvier’s edit.
    3d McC. 475.
    2. Because the said deeds and delivery did amount to an effectual conveyance of the legal estate, in the said negro, to the trustees, William Hilton and Joseph Sessions, for the term of the life of the said John G. Fryerson and Agnes, his wife, and of the remainder to the said Agnes, after the death of the said John G. Fryerson.
    
      Wm. Haynsworth, for the motion.'
    
      Moses, contra.
   O’Neall, J.

delivered the opinion of the Court.

In this case it is not even pretended that there was any error in the ruling of the Judge below, under the acknowledged rules of the common law. But it is undertaken to review and reverse the ancient principle, on which this case was decided.

Such a thing as a grant of a personal estate to the wife, by the husband, is unknown at law. Such a conveyance is a mere conveyance to himself. In equity, it might be that the husband would be held to be a trustee for the wife.

At law, however, the wife’s legal existence is merged in that of 'the husband, and she can have no separate legal estate.

This legal principle is taught in our first elementary book, that with which every student begins his legal course. In 1st Blac. Com. 442, we are told : “ By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during marriage, or at least is incorporated and consolidated into that of the husband ; under whose wing, protection, and cover, she performs every thing ; and is, therefore, called in our law-french a feme covert, fcernina viro cooperta; is said to be covert baron, or under the protection and influence of her husband, her baron or lord; and her condition, during her marriage is called her coverture.”

He also remarks, speaking of this legal union of husband and wife, “ for this reason a man cannot grant any thing to his wife, or enter into covenant with her.”

In Bacon's Abridg't. Tit. Baron and Feme, D. it is said, “ husband and wife are considered as one person in law, as having but one will between them, which is seated in the husband, as the head and governor of the family ; and, therefore, the law gives him the same right over any real estate accruing to the wife, during coverture, as if she were seized of it before marriage; so of chattels real accruing to the wife: it also gives him an absolute power over any personal estate or interest accruing to the wife by gift, devise, or her labor.” To these authorities may be added Robards v. Hutson and Price, where husband and wife had separated, and she had, by her own labor, acquired property, it was held that the legal estate was in the husband, and that she C0QJC| not sue aJ¡0ne. y

Bar.' & Feme ’ M.

The separate estate of the wife, independent of trustees, is altogether a creature of equity. Such a thing does not exist at law.

The deed from the intestate to his wife is, therefore, void : or conveys to her no estate. For if it could have effect, and could invest her, for a moment, with the legal estate, it would, in the next instant, jure mariti, vest in the husband.

The agreement, it might be very well contended, was a mere executory contract, between Elwell and Fryerson, and conveyed no legal estate. But if it be conceded to be a conveyance to trustees, it was only such for the lives of husband and wife: on the death of both, the estate of the trustees was ended, and the reversion was to the intestate’s legal representative.

The motion is dismissed.

Richardson, J. — Evans, J. — Wabdlaw, J. — and Frost, J. — concurred.

Motion refused.  