
    William Henry Cannon, an Infant, by his next friend, v. Paul Ulmer, Executor of John Ulmer.
    An executor delivered over to the husband, after the death of the wife, a slave which had been bequeathed to her during coverture ; and the husband subsequently sold the slave, and became insolvent. On a bill by the infant son, and only child, of the husband and wife, held, that the executor was not discharged by the delivery to the husband; and the objection of the want of administration of the wife’s estate, having been waived, the representative of the executor decreed to account for two thirds of thé value of the slave : but no interest allowed prior to the date of the sale, there being evidence that the infant had received the full benefit of the slave’s services to that time.
    The jus mariti cannot attach upon a bequest to the wife, although made during coverture, until the executor has assented to the legacy.
    Delivery to the father, of a chattel to which he and his infant son are jointly intitled as distributees of an intestate, of whose estate there was no administrator, will not bind the interest’of the son, in discharge of the party making the delivery.
    Heard by De Saussure, Chancellor, at Coosawhatchie, in January, 1829.
    
      Christopher Langley, by his last will, amongst other things, bequeathed a slave named Joe, to his daughter, Mary Cannon, the wife of Henry Cannon, and died on the 1st March, 1812: and his daughter, Mary Cannon, also died, on the 16th of the same month, leaving her said husband, and their only child, the present complainant, at that time an infant of tender years, surviving her. The slave Joe, came into the possession of Henry Cannon, who retained possession until the year 1817, when he sold Joe, to pay his debts, and, in fact, to be relieved from a ca. sa., under which he had been arrested. Henry Cannon being insolvent, this bill was filed to recover two-thirds of the value of Joe, being complainant’s distributive interest in his mother’s estate, from the estate of defendant’s testator, who had been appointed executor of Christopher Langley’s will, and had qualified as executor, shortly after the decease of the latter. The defendant, in his answer, alleged, that. Henry Cannon took possession of Joe, the very day after Christopher Langley’s death, without the permission of the executor ; who, nevertheless, and before Mary Cannon’s death, assented to the possession, on the single condition, that Joe should be re-delivered in the event of its becoming necessary for the payment of debts. It was further insisted, that a delivery to Henry Cannon, even after the death of his wife, would have been justifiable, and discharged the executor.
    Much evidence was introduced at the hearing, with a view to ascertain how, and when, Joe came into the possession of Henry Cannon, and to establish an assent to the legacy, by the executor, in the life time of Mary Cannon. It appeared, by the evidence, that the principal employment of Joe, previous to his sale, in 1817, was to attend to, and take care of the complainant, No administration had been taken out on Mary Cannon’s estate, but the objection was waived by the defendant.
    His Honor, the Chancellor, held the evidence insufficient to establish,.that the marital right of Henry Cannon had attached upon the slave Joe; and that without this, the executor was liable : for a delivery to Henry Cannon, would not discharge him ; and if he had not delivered Joe, he had certainly permitted Henry Cannon to retain possession of him. Decree for complainant, for two-thirds of the value of Joe, with interest from the death of Mary Cannon.
    From this decree, the defendant appealed, and now moved that the same might be reversed.
    Bailey, for the motion,
    cited 1 Roper’s Husband and Wife, 166, 202. Com. Dig. Baron and Feme, E. 3. Bac. Abr. Baron and Feme, D. Reeve's Dom. Rel. 61. Toller’s Ex. 220,221, 320, 80®' In Byrne v. Stewart, 3 Desaus. 135, Speight v. Holloway, lb. 138, Ex Parte, Wells, and Elms, lb. 155, and Bunch v. Hurst, ^3, the right of the wife accrued before coverture. And see Davis v. Rhame, 1 M’G. Ch. 191, and .Ordinary v. Geiger, 2 N. and MV 151. 1 BI. Com. 453, 461. Act of 1748, P. L. 217.
    Elmore, contra.
    
   Harper, J.

We do not perceive any thing in the testimony, to authorize us to reverse the Chancellor’s decree, with respect to his conclusions upon the facts : to wit, that John Ulmer, the executor of Langley, did not assent to the legacy to Mary Cannon, the testator’s daughter, during her life time ; but that, after her death, he permitted the slave Joe; to go into the possession of her husband, who survived her.

On this state of facts, it was argued, that the marital right of the husband attached on the slave, and that the executor was discharged, by delivering him to the husband. The authorities relied on for this purpose, say, in general terms, that if the wife acquires property during the coverture, this is, ipso facto, the property of the husband, the separate existence of the wife being merged in the husband; and that if the husband survive the wife, without reducing it into possession, he takes it jure mariti, and not as administrator. There is no doubt of the law in this respect. If property be conveyed to the wife, during the coverture, or she in any manner acquire the title to it, this'is, in effect, the title of the husband. If it vests in possession, this is sufficient, though there may be no actual manual possession. The wife is riot in contemplation of law a separate person, capable of taking a title. Soj if a bond, or note, be given to the .wife, during coverture, the husband may .sue alone, without joining the wife. In this case, if the .executor .were proved to have assented to the legacy, during the life time of the wife, although jno possession' was taken by the husband, until after her death,-this.might have completed the husband’s title. But this is not shewn, and tve must conclude, therefore, that the title remained in the executor.

It was further.argued, that the executor was authorized to deli, ver over the slave to Henry Cannon; the father, in his own right, and as natural guardian of his son; thé fáther being entitled to one third; and the complainant to two thirds, as the distributees of Mary Cannon. The rule certainly.is, that an executor is not'authorized to pay over-an infant’s legacy to his father ; Toll. Ex. 314, ei seq. although in some instances, where the legacy was trifling, he has been protected in doing so. But neither Henry Cannon, nor the complainant, was the legatee of Christopher Langley. The legacy not having been assented to during the life time of Mary Cannon, no one but her administrator could have been intitled to receive it. If the executor had refused to deliver it until administration taken out, the complainant would have had security for his interest in the legacy. The father being insolvent, the complainant has lost this interest, in consequence of the unauthorized act of the executor. Indeed, no one but the administrator of Mrs. Cannon, could sustain this suit. But the objection is waived on the part of the defendant, who consents, there being no surmise of debts of Mrs. Cannon, to answer directly to the party beneficially interested.

We think, however, there is a plain equity, why the complainant should not recover interest on the value of the slave, up to the time of the sale by Henry Cannon, in 1817. The evidence is uncontradicted, that he himself had principally the services of the slave, up to that period. If the administrator of Mrs. Cannon were suing, for the benefit of creditors, this defence could not be setup; but it would be manifestly unconscientious that the complainant should recover the value of the slave’s services, which he himself has actually received. The decree of the Chancellor, is therefore modified accordingly, so far as respects the question of interest, and in other respects affirmed.

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

Decree modified.  