
    Susan M. Wheeler, Administratrix of William Wheeler, deceased, v. Edward Meray, and Sarah A. Meray, his Wife, Edward Meray, an Infant, and John T. Vausse.
    Equity will entertain jurisdiction of a suit by an administratrix to recover personal property, in the possession of third persons, and alleged to be claimed by them, under a deed of gift from her intestate, to a woman with whom he lived in adultery. The validity of the gift depends, under the act of 1795, upon an account to be taken of the estate of the donor at the time of the gift; and even if the account could be taken in a Court of Law, there is no proceeding in that Court, by which the excess, over the proportion allowed by the act, could be recovered. So too, if the deed of gift be in its nature testamentary, equity will nevertheless entertain jurisdiction to prevent circuity of action; and the bill will be retained until the question of probate can be tried before the ordinary.
    Where from the terms of an instrument it was doubtful whether it were intended to operate as a deed, or a will, it was referred to the commissioner for inquiry, with directions to receive extrinsic testimony as to the intention with which it was executed.
    Heard by De Saussure, Chancellor, at Charleston, January, 1830.
    This was a bill by Susan M. Wheeler, the widow, and administratrix, of William Wheeler, deceased, to injoin the removal of certain slaves, in possession of the defendant, John T. Vansse, who had seized them as agent of the defendant, Edward Meray, and was about carrying them from the State. The bill charged, that the slaves were claimed by the defendants, under an instrument executed by her intestate, in the form of a deed, hut testamentary in its terms, by which the intestate “gave and bequeathed” the slaves in question to the defendant, Sarah A. Meray, formerly Sarah A. Evans, a young woman, with whom, at the date of the instrument, and at the time of his death, he lived in adultery. The gift was to her for life, remainder to her issue; and her only child, the infant defendant, was made a party to the suit. The bill prayed an injunction, and that the gift might he set aside, and the slaves delivered up to the complainant; or that an account might he taken of the estate of the donor, and the gift reduced conformably to the provisions of the Act of 1795, 2 Faust, 76. An injunction was granted on the filing of the bill, pursuant to the prayer therefor.
    The merits of the cause were not decided until a subsequent appeal, which, with the facts necessary to a full understanding of the points decided, is reported in 2 PlilPs Ch. 222. The chief question made at the present hearing, was as to the jurisdiction. It was contended, for the defendants, that the complainant had ample remedy at law; and had, in fact commenced an action of trover, in which the defendant, Vausse, had been held to hail, which action had been discontinued.
    His Honor decided in favor of the jurisdiction, and ordered a reference to the commissioner to ascertain the value of the estate of the intestate, at the time of the gift. The defendants appealed, and now moved to reverse the decree ordering a reference, and that the injunction might be dissolved, and the bill dismissed with costs.
   Haepee, J.,

delivered the opinion of the Court.

The principal question made in the case, relates to the jurisdiction of the Court. If the instrument in question he regarded as a deed, I think there can he no question as to the jurisdiction. Its validity under the Act of 1795, depends on the question, whether the property conveyed exceed one fourth of the whole amount of the donor’s estate, at the time of the execution; and this depends on an account of the estate, which the administratrix can only have in equity, making parties those who are interested, to contest such account. If the value of the estate could be shewn at law, I am not aware of any proceeding by which the administratrix could recover the excess of the property conveyed, over and above one fourth of the value of the estate.

So if the instrument were a will, and had been proved as such, I should have no doubt of the jurisdiction. It is a part of the jurisdiction to prevent circuity of action; and the Court will not drive a party to law, when it is plain the matter must be settled in equity finally. Although the administratrix, with the will annexed,-might recover the property in that character, yet there is nothing to prevent her coming into equity to determine on the claims of legatees under the will. If she should recover at law, the legatees would be driven to equity; and to determine on the validity of the legacy, the same account must be taken of the estate at the time of the testator’s death. If the instrument in question appeared to us to be a will, although it has never been offered for probate, yet the bill might be retained until it could be tried in the Court of Ordinary; but this would not be necessary, if the complainant should charge it to be a will, admitting the legacies to defendants, and the defendants should admit, and claim under it accordingly. If the defendants should disclaim, then to be sure the complainant’s ground of jurisdiction would fail, and she would be compelled to resort to law.

Hunt, for the motion.

Petigru, contra.

The question whether the instrument is to be regarded as a will, •or a deed, is now made; but it seems to us not to have been fully tried, in the Court below. The parties appear to us to have been indifferent how.it should be regarded; and yet, perhaps, their interests may be materially affected by the decision. Judging from the face of the instrument, it is extremely difficult, perhaps hardly possible, to decide, without resorting to extrinsic testimony, as to the intention with which it was executed. Such testimony is admissible; and perhaps more satisfactory evidence may be obtained, than any which has been heretofore offered. We shall therefore reserve this question for the coming in of'the report; directing the commissioner to receive and report such testimony as may be offered on the point. He will also report the value of the estate, at the time of the execution of the instrument, and at the time of the death of William Wheeler, with the amount of debts at either period, as directed by the decree of the Circuit Court. Any question of the instrument’s being fraudulent, as to creditors, supposing it a deed, may also be reserved for the coming in of the report. It is ordered that a reference he had accordingly.

Johnson, J., and O’Neall, J., concurred.

Decree affirmed.  