
    
      George W. Pressley vs. William McDonald.
    
    Where a legacy has been left to a married woman, whose husband has deserted her and lives in another State, an assent by the executor, so as to vest the title in the husband, and make it liable to attachment for his debts, will not be presumed, from the mere fact that the executor has permitted the property to go into the wife’s possession, and that she has received the profits to her own use.
    
      Before Evans, J. at Abbeville, Spring Term, 1844.
    William McDonald, Sen. by his will, gave the plantation where he lived, with several negroes, to his daughter, Nancy Calhoun, and her bodily issue. Nancy Calhoun was the wife of W. Calhoun, who had left the country about 1836, but was still living somewhere in the west. The will was executed in August, 1839; the testator died soon after ; the executors were Morris and Pressley, the latter of whom did not act until after Morris’s death. Mrs. Calhoun, with her children, after her husband left the State, lived with her father during his life, and after his death she still resided on the place, and the whole property remained in her possession, until the beginning of the year 1844, when the plaintiff, Pressley, hired out the negroes and rented the lands. The defendant, McDonald, issued a foreign attachment and levied on Harriet, one of the ne-groes given to Nancy Calhoun, as the property of her husband, W. Calhoun, the absent debtor. Morris, the first acting executor, had died, and the issue was made up between these parties to try the question whether the negro levied on belonged to the absent debtor, and this depended solely on the question whether the" executor’s title was divested by his assent to the legacy to Nancy Calhoun.
    The proof was clear that Morris,, in his lifetime, exercised no dominion over this property; Mrs. Calhoun had what seemed to be the entire control — she employed overseers and received the crops to her own Use. The negroes made very little, and for this reason the plaintiff took them and hired them out, but that was since this issue had been pending. By one witness it was proved, that in the course of some communications between Morris and McDonald, Morris said he had given up to Mrs. Calhoun all the property given her by her father, and this declaration was made with a knowledge that McDonald was about to levy an attachment on it. His honor charged the jury that, in general, if the executor assented, the legacy vested in the husband in right of his wife, as a gift to the wife was, in law, a gift to the husband; but that the executor could not be divested of his title, unless the legatee assented to accept the legacy ; but where the legacy is beneficial to the legatee, his assent might be fairly presumed. That the putting the wife into possession of a specific legacy, and her acceptance and use of it, would, in general, authorize the presumption of the husband’s assent, where there was no proof of his dissent, and where it was for his benefit. But the particular circumstances of this legacy, its being a provision for an abandoned wife, by her father, the husband’s absence and forbearance to set up any claim, were specially noticed as facts on which the jury might rely to rebut the presumption of assent. The jury found for the defendant in the issue, and the plaintiff appealed, on the ground—
    Because his Honor instructed the jury, that an acceptance as a legatee might be presumed when the legatee was out of the State, and could not assent, and no proof of his acceptance given.
    
      Thos. Thomson, for the motion.
    
      Perrin Sp McGowan, contra.
   Curia, per

Butler, J.

The only question in the case is, whether William Calhoun had legally vested in him the exclusive title to the negroes in question. His right depends on the sufficiency of the assent of the executor, Morris. It was competent for Calhoun to have received in his own right by virtue of his marriage, the legacy bequeathed in terms to his wife.

It was in the power of the executor, however, to have withheld his assent for the benefit of the wife, until her rights could be recognized and secured by a court of Equity. Has the husband received the property by the assent of the executor, is the proposition. I know of no way in which a man’s rights may be affected, except by his own acts, or those of an agent duly, authorized. It is not pretended that Calhoun has ever accepted the negroes himself, by any understanding between him and the executor. There does not seem to have been any communication between them- since the death of the testator. Calhoun either knew of his rights, or was ignorant of them; and in either point of view, an inference may be drawn unfavorable to his acceptance of the legacy. If he knew of his rights, he has not thought proper to assert them for his own enjoyment; but has acquiesced in the propriety of his wife taking the benefit of the legacy intended for her; which could only be done by the cestui-que trust holding by the permission of the trustee, and subject to his title. If he has been ignorant of the legacy, then he has taken it by an implication ’ of agency in his wife to receive it for him. Agency itself implies confidence, and an approbation of the acts of another. Hence, the wife is frequently regarded as the agent of her husband, while they live together, and her acts will be regarded as obligatory on him, where his assent, knowledge and approbation may be inferred. But when the husband has deserted the wife, and lives in another jurisdiction, at a great distance from her, the presumption of agency ceases, and the separate existence and rights of the wife are to be more regarded by courts taking cognizance of her acts.

In relation to the property in controversy, Mrs. Nancy Calhoun had rights wnich could be recognized by the law. And why suppose that she received the property for the benefit of her husband and to her own prejudice ? ' It certainly could not have been her design to do so. Nor does it seem now to have been the'intention of the executor to part with his legal dominion over the negroes for the benefit of the absent husband. Nor does it follow that the husband would,' as a matter of choice, have received the negroes for his exclusive enjoyment, to the prejudice of his wife __ and children. A husband may inflict injury on his wife by infidelity and desertion, but might not be willing to treat her with injustice, -so far as it regards property intended for her sole usé and. benefit. A sense of justice is not inconsistent with a want of affection. If it had been a matter of option, the husband might have been unwilling to take the property from the wife. Indeed, it may have been his. interest that his wife and children should have it, to the exclusion of his creditors. And under some circumstances, his actual refusal to take the property from the executor, would not be unnatural or improbable. At any rate, there is no necessity to say in this case, that the possession of the wife was ipso facto the possession of the absent husband. If he ever had rights, they have been vested in him without his knowledge and approbation, and have also been transferred by the executor without design, and in derogation of the rights of others, for whom he ought to hold the property.. We will not go so far as to say that the husband’s assent shall be presumed, upon the assumption of its being for his benefit, because there was no proof of his dissent. On the contrary, where there has been no knowledge of right, we will not presume assent. Motion granted.

Richardson, O’Neall, and Frost, JJ. concurred.

Wardlaw, J. having been of counsel in the case, gave no opinion.  