delivered the following dissenting opinion:
I do not concur in the judgment of the Court, and will now proceed to give my views upon the subject.
This was a suit arising out - of a levy upon a slave, claimed by a feme covert as her separate property.
On the trial of the claim, before the Court, (a jury having been waived by consent of parties,) the plaintiff in ex-cution produced the record of a judgment recovered against the husband of the claimant, in the Circuit Court of Columbia County, on the 20th day of December, 1855, together With they?, fa. issu'ed thereon, on the 31st day of January, 1856. He also proved that Henry Mattair, the defendant in execution and the husband of the claimant, had been in *128possession of the slave; from the'year 1840 or 1841, down to the date of the levy.
The claimant adduced in evidence a deed of gift from her father, Henry Jones, dated the 3rd day of November; 1840, purporting to convey the said slave t£ to Caroline Mattair, wife of Henry Mattair, and the heirs of her body,” with habendum to tc the said Caroline Mattair and her immediate offspring — to their own proper use and be-hoof forever.” It further appeared in evidence that the deed produced on the trial was a copy of the original which had been properly recorded, but which, together with the record of the same, had been destroyed in the fire which consumed the records and papers belonging to the clerk’s office of Columbia county. This established Copy was also recorded on the 2nd day of February, 1848. It was also in evidence that the debt upon which the judgment was founded, consisted of two promissory notes of the said defendant in execution — the one dated on the 29th of January, 1853, and the other on the 20th of March, 1854. It further appeared that at the time that these notes were given, the plaintiff in execution had full notice of the existence of the deed of gift, and that it had been recorded.
The Court gave judgment for the claimant, and from that judgment an appeal has been taken to this Court.
At the hearing before us, the counsel on both sides argued the cause, as though it were to be governed by the provisions'of the statute known as “the married woman’s law.”
For the plaintiff in execution, it was insisted that the act referred to could not be made to operate retroactively, and the property having been acquired anterior to the passage of the act, it was not protected by its provisions, •¡unless by the terms of the deed it had been secured to the wife as $ep>arate property.
*129For the claimant, it was contended, that although the terms of the deed should not be found to convey a separate estate to the wife, yet, inasmuch as the possession of the husband was only the possession of the wife, and he had never exercised any act of ownership over the property inconsistent with the title of the wife, or attempted to deal with the same as his own; and, inasmuch as the credit extended to the husband transpired subsequent to the passage of the act, the provisions of the same operated to secure the property to the wife immediately from the date of the enactment. I do not concur in this position ; for, if the slave was not the separate property of the wife at the time of its acquisition and before the passage of the act, there is nothing in its provisions which will give it a retroactive operation, and even if there were, I doubt whether such a provision could be enforced without an infraction of the Constitution. My opinion is, that the case must be decided upon common law principles and without any reference to our statute. The simple question, then, presented for consideration is, did the terms of the deed secure to the wife a separate estate in the slave? The words of conveyance in this deed are, “to Caroline Mattair, wife of Henry Mattair, and the heirs of her body.” These words, when applied to personalty ^ it is well settled, convey an absolute title to the grantee or first taker. The words of the habendum are, “ to the said Caroline Mattair and her immediate offspring — to their own proper use and behoof forever.” It is upon the effect to be given to these latter words that this case is to be decided.
Upon proceeding in this investigation, it is painful to discover in the adjudicated cases the extraordinary conflict which prevails upon the subject. In the English cases, of equal character and authority, the same identical *130words are interpreted to signify a diametrically opposite meaning. While one authority will hold the particular words to secure a separate estate to the wife, another will hold the same words to convey the estate to the husband.
It has been held that the words “ for her own use and at her own disposal,” created a separate estate-for the wife, and barred the marital rights of the husband'. — (Prichard vs. Ames, 1 Turn. & Russ., 222; Inglefield vs. Coghlan, 2 Coll., 247.) So also the words, “ for her own use and benefit, independent of any other person.” — (Margetts vs. Barrenger, 7 Sim., 482.) So too the words “for her livelihood,” (Darly vs. Darly, 8 Atkins, 899,) or “ that she should receive and enjoy the issue and profits.” — (Tyrell vs. Hope, 2 Atkins, 558.). So where the direction is that “ the interest and profits be paid to her, and the principal to her, or to her order,, by note in writing under her hand;” — (Hulmne vs. Terrant, 1 Bro. C. C., 16;) or “her receipt to be ajsufficient discharge;” — (Lee vs. Prieaux, 3 Bro. C. C., 381;) or “to be delivered to her on demand.”' (Dixon vs. Olmins, 2 Cox, 414.)
On the other hand, it has been held that the words “ to-pay to her (a married -woman) and her assigns,” do not create a separate use for the wife. — (Dakins vs. Berrisford, 1 Ch. C., 194;) or where the gift is “to her use; — (Jacobs vs. Amyatt, 1 Mad., 379;) or “to her own use and benefit ;” — (Johnes vs. Lockhart, cited 3 Bro. C. C., 383;) or “ to her absolute use;” — (ex parte Abbott, 1 Deac., 338 ;) or when the payment is- directed to be made “ into her own proper hands, to and for her own use and benefit;” — - (Tyler vs. Lake, 4 Sim., 144;) or “to her own proper use and benefit ;”- — (Blacklow vs. Laws, 2 Hare, 49;) or when-the property is “ to be under her sole control;” — (Massy vs. Parker, 2 My. & Keene, 674.) So also a bequest to a *131■woman and her assigns for her life, “ for her. and their •own absolute use and benefit,” has been held not to confer upon her a separate estate.
The foregoing citations are taken from the English reports, but, so far as I have had access to the American adjudications, I doubt if they will be found to afford any clearer light upon the subject. By a critical comparison of the words and their import which have been held to create a separate estate, and those which have been held not to do so, it will be seen that, where there have been no terms which expressly excluded the marital rights of the husband, the decision in the particular case has been purely arbitrary, and not conformable to any well-defined rule of interpretation. This being the case, they afford but an uncertain light to guide the footsteps of the enquirer after truth, and we are remitted at last to the application of elementary principles, the only unerring guide to correct conclusions.
It is well settled, that no particular form of words is necessary in order to vest property in a married woman to her separate use,; but the intention to give her such an interest, in opposition to the legal rights of her husband, must be clear and unequivocal. On the other hand, whenever it appears, either from the nature of the transaction, as in the instance of a settlement in the contemplation of marriage, where the husband is a party, or from the whole context of the instrument, limiting to the wife the property, that she was intended to have it to her sole use, that intention will be carried into effect by a court of equity. — ■ 2 Bright’s Husband and "Wife, 210; Leading Oases in Equity, 366.
It will thus be seen that the question is made to turn entirely on intention, and that where resort is to be had to implication, in order to ascertain that intention, the no*132twe of the transaction, the relation of the parties and the context of the instrument, will exercise an important bearing upon the question. To my mind, these circumstances are well entitled to be received as indicia of intention, and are of greater weight than any loose form of words, which have no technical or fixed signification. With reference to the nature of the transaction, we can well conceive that where the deed is made to a/erne in contemplation of an immediate marriage, the intention to secure to her a separate estate would be much more apparent than if it were made under ordinary circumstances. So, too, in respect to the relation of the parties : if the gift were from the husband, or he were a party to the deed, the presumption would be very strong that a separate estate were intended to be secured to the wife; for, to what purpose would he give the property, or become a party to the instrument, unless with the intention to bar his marital rights ? So also with respect to the context, where different expressions occur in the deed, it will not be inferred that it was the intention of the donor to apply one and the same meaning to the different expressions. This is illustrated by the decision in the case of Kensington v. Holland (2Mylne & Keene, 184.) In that case, there was a settlement upon Harriet Elizabeth O’Harra for, and during her life, “ to and for her own sole and separate use, independent of, and without being subject to the control, debts or engagements of her husbandIn the same deed the remainder, after the expiration of the life estate, was settled upon Maria Theresa Holland, wife of Erancis Holland, her executors, administrators and assigns, “ to and for her and their own use and benefit.” A bill was filed by the assignee of the husband, to subject this remainder interest to the payment of his debts, and it was contended in behalf of the wife, that it was her separate estate under *133the operation of the words, “ to and for her and their own use and benefit.” ' The Master of the Bolls decided against her claim, and in his opinion delivered in the case said: “ The intention to give a separate estate must be clearly expressed. A gift to a wife for her own use and benefit, does not clearly express such an intention ; more especially when it is considered, that in this case a trust for the separate use of a married woman is clearly expressed in the preceding part of the settlement. The court cannot infer that the same effect was intended to be given to different expressions.”
The case of Tyler v. Lake, (4 Sim. 144,) furnishes another authority for resorting to the context of the deed in order to determine the intention of the donor, where the expressions used in the instrument are ambiguous. By a deed declaring the trusts of the proceeds of real estates, the share of a married daughter of the grantor was directed “ to be paid into her proper hands for her own use and benefit;” and the same words were used in declaring the trusts of the shares of the grantor’s sons. In commenting upon the case, the Nice Chancellor observed — “ Supposing that it were ambiguous in this case, what is the meaning of the words relied on ? The will itself has given us a power of construing them ; for it must be supposed that the settlor intended the same in one gift as in the other. Now in the gift to William Tyler, the settlor has used the same words as in the gift to Mrs. Anthony, but it cannot be supposed that she intended, by using those words, to give him any peculiar power, over the property which he was to take, except what is implied in the gift, and therefore I am bound to say that in the gift to Mrs. Anthony, those words are to be taken as mere words of gift, and not as conferring on her any peculiar power over the property.”
*134These cases abundantly illustrate the correctness of my position, that where the words in the deed are ambiguous, resort may legitimately be had to the circumstances arising out of the nature of the transaction, the relation of the parties, and the context of the instrument, as indicia •of the intention. In other words, that each case must furnish its own lights, and that we are to be guided to a conclusion rather by those lights than by the arbitrary rulings upon particular words, which have been made regardless of the surrounding circumstances.
Applying these views to the deed under consideration, and trying it by the tests above indicated, and I think there ■can be but little doubt as to the intention of the donor, when he used the words1 — “ to their own proper use and behoof forever.”
If we refer to the nature of the transaction, it will be found that this was a gift to a woman, who was at the time under the disability of coverture. If it were not the intention of the donor to give her a separate estate in the property, .and to bar the marital rights of the husband, why was the deed made to her? We certainly cannot impute to the donor an ignorance of the fact, that, at common law, personal property given to the wife inures absolutely to the husband. There musthave been some object contemplated in making the wife the donee in the deed. I do not insist that this circumstance taken alone, is sufficient to fix an intention to create a separate estate, but I enumerate it as only one of the indicia of such an intention.
And as to the relation of the parties: — This is not an ordinary purchase by the wife for value; but it is a voluntary gift from a parent to a married daughter, founded ■upon the consideration of “ natural love and affection.” The object doubtless, in making the deed to her, was to provide for the comfortable support and maintenance of *135her and her children, and to guard against the casualties which might befall the husband’s fortune. This view of the case is in accordance with the tender regard which every parent must be supposed to entertain for the welfare of his offspring. But neither do I consider this circumstance, isolated and alone, as sufficient to bar the marital rights of the husband. It is only mentioned as one of the guides to the intention.
TTpon the next circumstance, however, to wit: the context of the deed, I do lay great stress, and I think it sufficiently potent of itself to fix the true signification and meaning of the words, “ to their own proper use and be-hoof forever.”
By reference to the deed it will be seen that the property was conveyed to her, “ and the heirs of her body.” Now there must have been some object contemplated by the donor in thus attempting to limit the property “ to the-heirs of her body.” That object evidently was to give the wife a life estate, with remainder over to her children, and thus to bar the estate of the husband. It is true that from ignorance of a well established rule of law, that object of the donor was frustrated ; but the failure to effectuate the obj ect by no means lessens the potency of the words, when considered as a means of interpreting the true meaning of the deed. In this connection, the words are to be considered, not with reference to their legal effect, but only as indicia of the intention. If there be any force in this view of the matter, then is it greatly strengthened by the fact, that the same effort to limit the estate is repeated in the habendum clause of the deed, where the words used are “ to her and to her immediate offspring.”’
After the most anxious deliberation upon this subject, and with an earnest desire to concur with the views of my brethren if possible, I am constrained to hold that the deed *136in question does secure to Mrs. Mattair a separate estate in the slave levied upon, and that he is not subject to the debts of the husband. I therefore dissent from the judgment of reversal, pronounced by this court.