
    *Wm. T. Spann, and Elizabeth, his wife, v. Tyre Jennings Chs. G. Spann, and others.
    Conveyance in trust for the separate use of the grantee’s daughter S. during her life, remainder to such child or children of S. “as may be then living, or who shall marry, or attain twenty-one years,” the trust was executed in the children of S. on her death, and the legal estate then vested in them. [*324]
    where the, wife, being sole next of kin to deceased infants, and entitled to their whole estate, and there being no debts, before her marriage, took possession of the estate without administration, and the husband, after marriage had a like possession: Held, that the marital rights of the husband attached on the personal estate of the deceased children, and it vested in him. [*325]
    This case came to a hearing before Chancellor Johnston, at Sumter, Feb. 1833, on the bill, answers and exhibits, and the following statement of facts agreed to by the parties :
    Ephraim Adams, the grandfather of the plaintiff Elizabeth, on the 2d of January, 1817, conveyed certain slaves mentioned in the conveyance exhibited with the bill, to Daniel Wade, “ in trust to and for the sole and separate use and benefit of his daughter Sarah O’Quin, during her natural life, and notwithstanding her coverture, &c., that the same should not be liable to the debts of her then or any future husband, and from and after her death, to the use of such child or children of his said daughter as may then be living, or who shall marry, or attain the age of twenty-one years, lawfully begotten by her then husband Daniel O’Quin junior.” Mrs. O’Quin died in 1818, leaving three children by O’Quin, of whom the plaintiff Elizabeth is one; the other two died shortly after their mother, minors, unmarried, without issue and intestate, and no one has yet administered on their estates. The plaintiff Elizabeth went into the possesion of these slaves before her marriage with James L. Spann, and retained possession until that marriage, which took place in 1824. lie retained possession from the marriage until his death in 1827. The main question argued in the case, was whether the marital rights of James L. Spann attached on the slaves so as to pass them under his will.
    The Chancellor decreed, that the trust in these slaves was executed in the children of Sarah O’Quin on her death, and Mrs. Spann’s third part thereof vested in her husband, he having had them in possession during coverture; and that the other two-thirds vested in the children now deceased, and are subject to administration, and therefore did not vest in J. L. Spann, the husband.
    From this decree the complainants appeal, because the Chancellor decreed one-third of these slaves to the defendants ; and the defendants appeal, because he did not decree them the whole.
    
      Blanding, for the plaintiffs.
    Mayrant, contra.
   *Harper, J.

We concur with the Chancellor, on all the points involved in this case, except as to the marital rights of James L. Spann not having attached on the shares of the children of Sarah O’Quin, who died infants, leaving the plaintiff, Elizabeth, their sole next of kin, and entitled to their whole estates. On that point we think the decree must be modified on the authority of the case of Marsh v. McNail, decided by this Court at Columbia, January, 1832. In that case the husband had taken possession, without administration, of the estate to which his wife was exclusively entitled, all the debts being paid, or there being no debts; and it was held that the marital rights had attached. In this' case it was agreed that the children died at a very early age, and could have owed no debts. James L. Spann was entitled to the administration in the name of his wife. But to what purpose should he have administered ? There were no debts to pay, and no distribution to be made. Was it simply that he might take possession in his own right ? That would have been merely going through a nugatory ceremony.- — -Or if any other person had administered, could the property have been recovered from him? No — by going into Equity and shewing that there •were no debts, and that his wife was exclusively entitled, a recovery at law would have been restrained. In every point of view, then administration would have been superfluous. He took possession of the two-thirds derived from the deceased children, just as he did of the rest of his wife’s property, and we think his marital rights must be held to have attached on them.

The decree of the Chancellor is modified accordingly.

Johnson and O’Neall, Js., concurred. 
      
      
        а) Not reported.
     
      
       If another administering could recover the property at law from the husband, unless restrained by injunction, (which seems to be admitted) does it not prove that the legal estate had not vested in the husband, and consequently that the marital rights had not attached? See Elders v. Vauters, 4 Eq. Rep. 155; Farly v. Farly, 1 M’C. Ch. 514; Gregory v. Foster, 1 M’C. Ch. 324; Bradford v. Felder, 2 M’C. Ch. 170. R.
     