
    Daniel and wife vs Daniel.
    Error to the Fayette Circuit.
    Replevin.
    
      Case 44.
    The ease stated.
    
      Cestui que trusts. Trusts. Legal title.
    
    
      Oct. 17.
   Jvdge Beech

delivered the opinion of the Court.

James Daniel and Rachel Venable, in anticipation of an intermarriage between them, conveyed all the estate of the latter to George McDonald, in trust for her separate use and benefit after the intended marriage, and subject to her disposition, by special instructions in writing signed by her to the Trustee. The marriage took place and this action of replevin was brought by Charles Daniel against said James Daniel and his wife Rachel, for a slave belonging to said Rachel before marriage, and 'embraced in the deed of trust to McDonald. Charles Daniel, the plaintiff in replevin, sets up claim to the slave-under a parol gift from the defendant Rachel, made subsequent to her intermarriage with the defendant, James. The testimony upon the trial conduced to establish the gift, and the jury, under the instructions of the' Circuit Judge, found the slave for the plaintiff, and judgment having been rendered thereon, the defendants have brought the case to this Court for revision.

By an ante-nuptial contract the property of the wife was conveyed to a truslee to her separate use. She gave a portion of it, (a slave,) by parol gift, to another— Held that no legal right passed which would authorize the do-nee to maintain an action at law for the slave.

Woolley, Einkaid and Bodlay for plaintiffs: Robinson Sf Johnson for defendant.

The only question in the case, which we deem necessary to decide, is whether the defendant, Rachel, by her act alone, without the co-operation of the Trustee, could pass the legal estate in the slave in question. We are very clearly of opinion she could not. The very object of the deed of trust was to vest the legal estate in the Trustee. The estate of the wife is an equitable one, and by her act alone she could, in no view of the case, pass any other. The legal estate, from any thing that appears in the record, is still in George McDonald, the Trustee.

Whether the defendant, Rachel, could or not dispose of her equitable estate in the slave in contest, or authorize the Trustee to pass the legal estate, in any other mode than that specified in the deed, it is not necessary, and we do not now decide. As there was no testimony conducing to prove any legal title irr the slave in the plaintiff, or any right to recover upon any other ground, he was not entitled to recover in this form of action, and the Court consequently erred in the instructions to the jury.

The judgment is, therefore, reversed, and the cause remanded, that a new trial may be had and further proceedings consistent with this opinion.  