
    James Hood v. David Archer, et al.
    Plaintiff’s wife, with others, was entitled, under the act for the distribution of intestate’s estates, to a share of real estate; and a writ of partition, under the Act of Assembly, was sued out, and an order for the sale of the property was obtained, and the purchase money paid into the hands of the sheriff, according to the order. The wife then died. It was held that this was not such a reduction into possession by the husband, of the wife’s choses, as to consummate his right to the whole; but as his wife died without issue, he was entitled under the Aot to one-half, 
    
    Motion to reverse the decision of the Court below.
    This was an application by James Hood, for an order of Court, directing the sheriff to pay over certain ^moneys to him which he had received, under r*p5o the following circumstances:— *•
    William Archer died intestate, seized and possessed of a tract of land, and leaving several children, of whom the wife of this petitioner was one. After his death, application was made by Elizabeth Archer, another daughter, for a writ of distribution, pursuant to the Act of 1791. The commissioners appointed to divide the land, returned, that it could not be divided without manifest injury to some of the parties concerned; and therefore recommended that it should be sold. A sale was accordingly ordered, upon a credit, the money to be paid by instalments, and the bonds for the purchase money to be given to the sheriff. After the first instalment became due, and the money paid into the hands of the sheriff, the wife of James Hood died. And this was an application by Mm to have the share of the money which belonged to his wife, paid over to him. The question was, whether the payment of the money to the sheriff was such a reduction of it to possession as to consummate the right of the husband, and therefore entitle him to the whole, or whether he was entitled to only one half under the act of 1791, his wife having died without issue ?
    The motion was made before Mr. Justice Nott, at Camden, Pall Term, 1818, who refused to grant it, and who now delivered the opinion of the Court.
    
      Levy, for the motion. Blanding, contra.
    
      
       5 Stat. 162.
    
    
      
       See the case, ante, 147, of Sturgineger v. Hannah, and the following case from Judge Brevard’s Reports:
      The Ordinary v. Geiger, et ux., et al.
      
      This was an action on a bond, given with a condition weE and truly to administer the estate of Jacob Geiger, deceased, tried before Mr. Justice Wilds, at Orangeburgh, April, 1805.
      The defendants set out the condition, and pleaded performance. Plaintiff replied and stated a breach in not returning a true inventory. The ease, as it turned out in evidence, was this : The mother of Dorothy, the defendant, Geiger’s wife, while sole, made and executed a deed of gift of certain negroes to her four children, jointly. Afterwards, Dorothy intermarried with Jacob Geiger, the intestate, her former husband. Upon this event, one of the negroes, given as aforesaid, -was sent with, her upon her going to live apart from her mother, and remained with her ever since. No regular partition, however, was ever made of the property, Between the donees. After the death of Jacob Geiger, who died intestate, the defendants administered on his ^estate, and in the inventory of his estate, returned to the Ordinary, made no mention of the negroes L given as aforesaid.
      Mr. Justice Wilds charged the jury that this omission was a Breach of the condition of the administration Bond, and the jruy found for the plaintiff.
      The motion in this Court was for a new trial, for a misdirection of the Judge on that point.
      
        Egan, for the defendants, argued totis viribus, that the deed of gift conveyed no right of possession to the donees, But only a chose in action, and that no property vested absolutely By virtue thereof in Dorothy, while she was covert of her first husband, and, consequently, that none could vest in her said first husband, and therefore that his representatives were not entitled to take any notice in the inventory of his estate of the said negroes; and that the interest of Dorothy therein was only a chose in action, which survived to her. Hynes v. Executors of Lewis, Taylor’s Rep. 44; Blount v. Bestland, 5 Ves. Jun. 515 ; 2 Haywood, 183, 184.
      
        Stark, contra, was stopped By the Court.
      The Court (Gkihke, Waties, Bat, and Bkevaed) were all clear that a right of possession vested instantly upon the execution of the deed of gift, and that Dorothy was entitled to the property given as a joint tenant; and, therefore, that upon her intermarriage with Jacob Geiger, the property and right of possession, which she had, vested in Jacob Geiger, and Became part of his personal estate, and ought to have Been returned as such in the inventory; and that the direction given to the jury By the District Court was right.
      A new trial was consequently refused.
      
        Note. — In general a gift is accompanied with the immediate delivery of possession ; But it is not always done, nor is it necessary. It requires sóme slight evidence of a delivery, in the case of a parol gift; see 2 Str. 955 ; Bac. ABr. tit. Trov. sec. C.; But not where there is written evidence of the gift, for there a delivery must Be presumed. Where a merchant Beyond sea consigns goods to a merchant in London, on account of the latter, and draws Bills on him for such goods, though the money is not paid, yet the property of the goods vests in the merchant in London, who is credited for them, and they Become liable to his debts. 2 Woodes, 410 ; 3 P. Wins. 411. The marriage is an absolute gift of the wife’s chattels personal in her own right; Co. Litt. 351, 46. If chattels are given to a wife, the interest vests in the husband, though he has not possession of them Before the death of the wife; 2 Com. Dig. 82, ,84.
      Qucery. Whether it would have varied this case, if it had Been proven that the right of the donees to the negroes given was disputed; and that the possession of them was withheld ? Eor any thing that appeared, the possession passed to the donees ; and the possession of one was the possession of all the joint tenants. But, qucery: Did the undivided part of Dorothy vest in possession of her husband, By the marriage ? If the possession was vested in her, it is to Be considered as vesting in her husband By the marriage. In the case of Speight v. Meigs, the distributory share of the wife was considered as vesting only in interest, and not in possession. This circumstance distinguishes* that case from this. If it go vested in possession in Dorothy, it vested in possession (constructively) in *• the husband; Co. Litt. 351; 2 Bl. Com. 397; 2 Com. Dig. 84; 2 Haywood, 184, 185 ; 1 H. Bl. 535.
      Overruled in Verdier v. Hyrne, in Errors, 4 Strob. 463.
    
   Nora, J.

This question may be considered as settled in the case of John Sturgineger, et al. v. A. Hannah, et al., in which the opinion of the Court has just been delivered. The husband could not be considered as having the possession as long as the money remained subject to the control of the Court. A. Court of Equity, in all probability, under similar circumstances, would order the money to be settled upon the wife, which could not be done if the right of the husband had been consummated by possession. Perhaps it is not altogether an unimportant con- -, sideration, that the *money in this case was the proceeds of land J belonging to the wife. Previous to the Act of 1791, the husband had only an unsufructuary interest in the real estate of the wife, during her life, except where he became a tenant by courtesy ; and there is nothing in that Act, from whence it can be inferred, that it was the intention of the Legislature to alter their relative rights in that respect, except that he is entitled to a part of the inheritance after her death. The Act does indeed direct, that the land shall be sold where it cannot be conveniently divided. And as this Court cannot order a settlement, the money must be paid over to the husband. The consequence is, that the land, by a legal operation, is converted into money, and the interest of the wife in her patrimony destroyed. The effect of that provision, I am constrained to believe, was not foreseen at the time it was enacted, and furnishes an additional reason why the marital rights of the husband should not be extended by construction.

The motion must be discharged.

Coioook, Gantt, Johnson and Rjohabdson, JJ., concurred. 
      
       Ante, 147.
     
      
       1 Brev. 484.
     