
    M’Kay vs. Allen and others.
    
    If a husband is entitled to the separate personal estate of his wife by virtue of his marital rights, he must obtain it by taking out letters of administration.
    If the husband is entitled, and' administration is granted to another, be holds it in trust for the husband.
    The separate estate of a wife is liable after her death for debts contracted by her before marriage, and which were not recovered during the marriage.
    Jones W. Allen and Almyra M’Kay were about to enter into the bonds of matrimony in September, 1830, and in view of that event, a marriage contract was made between them, whereby the property of said Almyra, consisting of some lands and one negro girl, was conveyed to Matthew Allen, the father of the intended husband, in trust “to secure to the said Almyra, and her heirs,” for her sole use and benefit, the said property “free from and beyond the control of the debts and demands against the said Jones W. Allen,” her intended husband, and “to .have and to hold the .same in trust, to secure to the said Almyra and her legal heirs forever, the right and use of the same, to be free from all liabilities which they would otherwise be subject to, in consequence of the debts due by the said Jones W. Allen, reserving the right to retain the possession and enjoy the use and benefit” of said property.
    The marriage took effect immediately after the execu tion of the said contract. The said Almyra was then under age; she died in March, 1831, being still under age, intestate, and without issue. Dickinson M’Kay, the plaintiff in this suit, who is a brother of the said Almyra, applied to the county court of Davidson, at the next term after the death of the said Almyra, for administration upon her estate, and it was granted toTiim. It does not appear that the husband renounced his right to administer, or that he knew of the application. Robert Lusk, one of the defendants, was a judgment creditor of the said Jones W. Allen, and after the death of the said Almyra, he caused an execution founded upon that judgment, to be levied upon the said negro girl, as the property of the said Jones W. Allen.
    This bill is against the husband, the trustee, and Lusk; it seeks to enjoin Lusk from selling the said negro girl, un-derhis said judgment; and to subject her to the payment of debts alleged to be due from the said Almyra to her mother, Mary M’Kay, on account of board and clothing before marriage, and due in consequence of her having boarded the said Almyra and her husband for and during the six months of their union. The amount of those debts is not specified, nor were any judgments rendered for them. The answers deny the existence of those debts, and say that they were raised after the death of the said Almyra, for the purpose of preventing the negro from going out of the family. The complainant obtained a decree in the chancery court, from which the defendants appealed ta this court.
    
      
      F. B. Fogg, for complainant.
    The marriage settlement confers no right upon the husband; it operates as an extinc tion of his marital right, and gives the property to her as a feme sole, to be held as separate property. With regard to personalty, a married woman who by agreement holds it separate, can dispose of her whole separate estate therein, (unless restrained by the settlement pointing out a particular mode of conveyance, and prescribing the form,) although there should have been no power reserved or trust expressed for that particular purpose. All the cases show that personal property, where it can be enjoyed separately, must be so with all its incidents, of which the right of disposition is one. 3 Bro. Ch. Ca. 10, and see the note of Belt at the bottom of the page. A feme covert in regard to separate estate, is competent to act as if she were a. feme sole. Acton vs. White, 1 Sim. and Stu. 429: 13 Ves. 190: 11 Ves. 221: 9 Ves. 624, and other cases cited in Jeremy’s Equity Jurisdiction, pages 208, 431. The only doubt has been as to the effect of a particular mode of disposition specified in her settlement, whether that ought to be observed. Chancellor Kent, in Jacques vs. M. Episcopal Church, in 1st and 3d Johnson’s Ch. Reports, decided that she must pursue that mode; and this court in Elam against Elam, followed that decision. The court of errors in New York decided the other way in 17th Johnson’s Reports, reversing Chancellor Kent’s decree. But no one has ever denied, that if there is no' restriction, she holds the property as if she were not a married woman, and she can dispose of it by deed or will. Clancy on Married Women, pages 282, 289: 2 Ves. sr. 190: 1 Ves. jr. 46: Clancy, 308, et seq.
    Then at her death it was her separate property. Upon that event, supposing (which I do not admit, and which point I do not wish to be decided in this case without argument) that by the laws of Tennessee, which expressly orders distribution to the next of kin, that the hus.band is entitled jure mariti, how can he obtain it? See 3 Bro. C. C. 11, in note; only “by taking out letters of administration to her.” See Watt vs. Watt, 3 Yes. 246, 247: 14 Ves. 372, 381-2. As to the debts due to Mrs. M’Kay, the evidence shows she is poor, and not able to lose the debt. If they are trumped up, and the administrator pays them, he will be responsible. The validity of this debt or these debts, is not submitted to the court. If the debts existed against Mrs. Allen, her separate property after her death is liable to pay them. If the administrator pays them, and they are not due and owing, he will be accountable to the distributee or distribu-tees.
    
      T. Washington, for defendants.
    1st. Upon the death-of Mrs. Allen, Jones W. Allen, the husband, took the negro girl, jure mariti, which passed to and vested in him, and not in her administrator. 7 John. Ch. Rep. 246-7.
    2. By the terms of the marriage settlement, the possession of the trustee inured equally to the husband after the death of the wife, as to the wife-during her life.— There was, therefore, a reduction to possession, during coverture; and if so the property in the hands of the husband is not liable to her debts after her death, nor is the husband personally liable.
    3. There is no pretence for saying that the wife’s property is separately liable for the support of the family during coverture. And, as to her ante-nuptial debts, although the husband was liable for them during the coverture, yet he ceased to be so afterwards, although he acquired property by the wife. The bill does not attack the marriage settlement as being fraudulent against the ante-nuptial creditors. 1 Sch. and Lef. 263: 1 Will. on Ex. 487-8: 7 John. Ch. Rep. 117, in the index: 17 John. 548.
    4. The negro is not equitable assets, unless the marriage settlement could be successfully impeached for fraud; and then the creditors should be complainants, and should have obtained their judgments at law, before filing their bill. The bill is an admission that the negro is not legal assets. 2 Williams on Executors, 1033.
    
      W. Thompson
    
    also argued at considerable length upon the same side in support of the above positions. He also insisted, that if the administration was rightfully granted to the plaintiff, he was a trustee for the husband; that in this case the trustee was asking the aid of a court of equity against his cestui que trust, for the purpose of getting the property into possession to pay debts which manifestly were not recoverable, that were suspicious in their character, being set up by a mother against her minor daughter, for whom she was acting as guardian at the time. He saidthat if they ought to be paid, the creditor should be made a party, an account ordered, and the debts reported, that the husband might pay any which met the sanction of the court, and not permit the administrator to recover unconditionally the slave, when he has manifestly taken sides with the creditor against his cestui que trust. He also said that if the slave was equitable assets, they ought to be administered under the directions of a court of equity.
   Peck, J.

delivered the opinion of the court.

Almyra M’Kay being about to marry Jones W. Allen, and inheriting lands from her father, and having also a negro girl and other property, herself and intended husband, previous to the marriage, settled all her estate (describing it) in the hands of Matthew Allen, as trustee, by deed duly proved and recorded.. The objects expressed were to secure to the intended wife and her heirs the use and benefit of said estate, free from and beyond the control of the debts and demands against him, the intended husband, to be by her possessed and used. The marriage followed; she died shortly after the marriage, and left no heirs of her body.

Allen, the husband, after the death, got possession of the negro, and Lusk having obtained judgment against Allen, had an execution levied on her. The complainant administered on the estate of Mrs. Allen, sets up his right as administrator to the possession of the girl, and brings this bill to enjoin Lusk and all others from disposing of her.

Lusk in his answer insists on the honesty of his demand against Allen, and that in right of his wife the property at the death became his.

The deed is shown in proof; on the hearing the Chancellor, decreed an injunction, from which decree an appeal is prosecuted to this court.

This being the state of the case in the pleadings and proof, it is not indispensible we should decide in whom the right of property vested on the decease of Mrs. Allen.

If it were admitted that the husband is entitled upon the death of his wife to her separate personal estate by virtue of his marital rights, he must obtain it by taking out letters of administration. 3 Br. Ch. Cases, 10, note: 14 Ves. 273, 381-2.

Whether the administration granted to the complainant be rightful or not, is not now a question. “The only competent jurisdiction has clothed him with the trust, and as such he is entitled to the rights and credits of his intestate. If the husband is entitled, the administrator holds it in trust for him, and to him is accountable for the estate that shall remain after payment of the debts. 7 John. Ch. Rep. 229.

If the administrator, pays debts not rightfully chargeable upon the estate, he will do so in his own wrong, and consequently be held accountable.

Mrs. Allen had the entire right to the negro' girl; as much so as if she had continued s Je; and when she died leaving this estate, it was obviously liable to her debts contracted before the mamare, and not recovered during the marriage. 01 necessity, therelore, administration on the estate should have been granted. The complainant, therefore, is entitled to the interference of this court. The decree was proper and is affirmed.

Decree affirmed.  