This was a trial of the right of property in certain slaves, levied on as .the property of William B. Townsend, and claimed by William E. Peake. To show title to the slaves, the complainant introduced a deed,bearing date the 26th of March 1835, executed by William B. Townsend, Martha S. Jenkins, and Benjamin Reynolds, which, after reciting that a marriage was intended shortly to be solemnized between the said William B. Townsend and Martha S. Jenkins, conveyed to the said Benjamin Reynolds, as trustee, certain slaves, to*642gether with some bonds and obligations for the payment of money, which at the time of the execution of the deed were thé property of Martha S. Jenkins, the intended wife. The conveyance, however, was subject to the trust and limitations expressed in the deed, which are as follows: “ In trust for the sole and exclusive use, behoof, and benefit of the said Martha S. Jenkins, until the solemnization of the said marriage, and immediately after the solemnization thereof, in trust to and for the joint and equal use, benefit, and behoof of the said Martha S. Jenkins and William B. Townsend, for and during the term of their joint lives, without being subject in any manner to the debts, contracts, and engagements of the said William B. Townsend, and in trust to permit and suffer them, the said Martha S. Jenkins and William B. Townsend, during their-joint lives, to recieve and take the issues, profits, and labor of said slaves, and the interest of the said bonds and obligations to and for their joint and equal use, behoof, and benefit, and from and after the death of either of them, the said Martha S. Jenkins and William B. Townsend, then to and for the sole and individual use of the survivor of them, for and during the term of his or her natural life.” The deed also provides for the children of the marriage, after the death of the survivor, and contains several limitations over in default of children. It is also provided, that the trustee might sell the slaves, or exchange them-for other property, and in the event the money on the bonds should be collected, that the trustee, at the request of the said Martha S. Jenkins and William B. Townsend, should invest the same, and also such sums of money as he might receive from the sale of the slaves- conveyed by the deed, in other property, real or personal, to be- held on the same terms and subject to the same trusts and limitations. It is further provided that in the event of the resignation of the trustee, that Martha S. Jenkins and William B. Townsend might, by writing under their hands and seals, appoint another, who should succeed to all the rights conveyed by the deed to Benjamin Reynolds. It was also shown that the slaves levied on were purchased with the proceeds of the bonds conveyed by the deed, and that the claimant had been-duly appointed trustee, after the resignation of Reynolds in the manner described in the deed. At the time of the execution of this deed the parties resided in South Carolina, and were there *643married. After the marriage Townsend and his wife removed to this State, and the slaves have been in his possession, but the testimony tended to show, that he always acknowledged that he held them in conformity with the terms of the deed, and not in opposition to it.
If this deed is to be construed by the laws of Alabama, there could not be a doubt but that Townsend, the husband, would take the entire interest in the slaves, during the life of himself and wife and the survivor of them, for it is the settled law in this State that the husbaud and wife cannot be joint tenants or tenants in common of a chattel, either in law or in equity. In the case of Moss v. McCall, 12 Ala. 630, it was decided, that where property is conveyed to a trustee for the mutual support of husband and wife, and the profits are directed to be paid to the husband and wife for their joint maintenance, the entire interest is vested in the husband, and that the wife takes no interest in the trust. Again, in the case of Cook v. Kennedy, 12 Ala. 49, slaves were conveyed to a trusree for the joint use of husband and wife, during life, and after their death, remainder over to the children of the marriage; it was decided, that the husband took the entire life estate,' to the exclusion "of the wife. Indeed this very deed was before this court, in the case of Bender v. Reynolds, 12: Ala. 446, and it was held, not to create a separate estate in the wife, but that the slaves, having, come into the possession of the husband, were liable to be sold for his debts under execution at law. But it did not appear in that case that the laws of South Carolina, where the deed was executed, differed from the laws of Alabama. In the case of Pollard v. Merrill et al. 15 Ala. the deed, which was an antenuptial agreement, conveyed the property of the intended wife to trustees, to have and to hold the same for the separate and exclusive use of the wife and the intended husband, during their joint lives, with remainder over to the children of the marriage, and it was expressly declared by the deed, that the property should in no wise be liable to the debts of the husband. After the marriage the property, which consisted of slaves, came into the possession of the husband, and it was decided that they could be sold under execution at law against the husband. All these decisions rest upon the principle, that there cannot be a community of interest between husband and wife in goods, either at law or in equity, *644and to prevent the right of the husband from attaching to the, whole, if the property came into his possession, he must be altogether excluded from all interest in the property, at least during the interest of the wife; and to secure her rights, the property must be conveyed for her sole and separate use. Whether these decisions be in'conformity with the rules of the common law or not, as understood in-England,'they settle the law in this State, and the deed now under consideration‘construed by them would give to the husband the entire property, during the life of himself and his wife, or the survivor of them, which-could be sold under execution, as the husband had the slaves :in possession.
- But the deed was executed in South Carolina, and in reference to the rights that the husband and wife take under it, we must look to the laws of that State, and by them the deed must be construed; for it is a principle, acknowledged by all courts, that the lex loci contractus must govern, not only as to the validity of the contract, but also in its construction and interpretation, by which the rights ofthe parties are ascertained.-^Story’s Conf. Laws, §§ 275-6; Carnegee v. Morrison, 2 Metc. 381. Judge Story, in speaking of marriage'contracts, says, the language of marriage contracts and settlements must be interpreted according to the law of the place where they are contracted.— Story’s Conf. Laws, § 576. Indeed a different rule would not only lead to infinite difficulty and perplexity, but what is still worse, it would lead to a destruction ofthe legal rights of the parties to "the contract, and instead of ascertaining and enforcing their rights, which is the duty of courts, we would destroy them. We must therefore inquire what are the laws of South Carolina in reference to this deed, and what rights, if any, did Mrs. Townsend take under it. The claimant introduced the depositions of three practicing lawyers of South Carolina, all of whom .swear that by the laws of South Carolina the interest of the husbánd in the slaves could not be sold at law, and that he takes a joint and equal interest with his wife in the trust created by the deed, and they refer to the cases decided by the courts of last resort in that State as the foundation of their opinion. In the case of Rice v. Burnett, 1 Speers’ Eq. 579, the deed of marriage settlement conveyed the real and personal estate of the intended ■wife to a trustee for her sole use, until the marriage should take *645place, and afterwards in trust to permit the wife and husband to have, use and possess the property, during their joint lives, and after the death of either, then to permit the survivor to use, possess and enjoy the property, during his or her life, with remainder over to the children of the marriage. On this deed, the question arose, whether the slaves conveyed by .it were liable to be sold at law, they having come to the possession of the husband, for whose debts they were seized by execution. The court decided that they could not, and that the creditor would have to resort to a court of equity to subject the interest of the husband. In the case of Iorr et als. v. Hodges et als., ib. 593, certain slaves were conveyed by an antenuptial agreement to á trustee in trust to permit the husband, duting the joint lives of himself and his intended wife, to have, receive, take and enjoy all the interest, income, and profits of-the slaves, to and for their use and benefit; it was held that the slaves were not liable to sale at law under, execution against the husband. It is true, that these decisions do not expressly declare that the wife takes a joint interest in the trust with her husband, but if the wife took no interest in equity under the marriage settlement, we are unable to perceive why the slaves could not be sold at law, even under the decisions of the courts of South Carolina; for in the case of Pringle v. Allen, 1 Hill’s Ch. 135, the question arose tinder a marriage settlement, by which slaves were conveyed to trustees in trust for the husband and wife, during their joint lives, and for the use of the survivor, during life, with remainder over to the issue of the marriage; the husband died, leaving issue, the wife surviving him; the slaves wfere seized after the death of the husband, to satisfy the debts of the wife, and the question was whether they w'ere liable to be sold ; the court held that, as the wife was in possession, she had a legal estate during her life, which was liable to sale at law. The case of Porcher v. Gist, cited in the opinion, maintains the same doctrine, and the principle seems to be settled in that State, that if personal estate is conveyed tó a trustee in trust for one for life, with remainder over after his death, if the tenant for life come into the actual possession of the property he is considered as owner at law, and his life estate may bo sold. — Forgarty v. Hubbell, 3 Hill 30;-Ford v. Caldwell, ib. 248. Unless, therefore, these decisions arc all overturned by the cases cited from 1 Speers’ Eq. Pep., *646we must hold that the wife would have an interest in the slaves under this deed, for if she had not, and the husband had the entire life estate, after he received the possession of the slaves, they would be liable to be sold under execution, that is, his title would be a legal one, and his interest liable to be sold at law. But if the husband was not entitled to the entire equity, but the wife was jointly entitled with him, then the legal title would not pass from the trustee, for the wife, being incapable of holding a legal title to personalty during coverture, the title must remain in the trustee to protect her equity, and consequently the trust would not be executed, even as to the life estate of husband and wife, and not being executed, the legal title could not vest in the husband by his possession under the deed. This view seems to correspond with the opinion that the witnesses entertain of the cases reported in 1 Speers’ Eq. Reports, and we have not been able to find any case decided in South Carolina that denies that husband and wife may take a joint interest in a trust created by an antenuptial contract; but on the contrary, in the case of Jones & Wife v. Fort, Townsend & Mendenhall, 1 Rich. Eq. Reports, it was expressly decided that when personal property is conveyed to a trustee for the use of husband and wife, it cannot be sold at law by the creditors of the husband, although the husband, as the trustee, was in possession, but that the husband’s interest could be subject only in a court of equity. In this case, it was refered to the master to inquire and report what portion of the property ought to be settled to the sole use of the wife, thus clearly showing that the court considered the wife as taking a joint interest with the husband in the trust. This was the evidence introduced in the court below, to show that according to the lex loci conti actus, the wife took a joint interest in the trust with the husband. The testimony of the witnesses distinctly declares such to be the law', and the decisions of the courts of the last resort corrdfrorate their opinion. We think the evidence was sufficient to show' that, under the laws of South Carolina, the w'ife has an interest in the property, held under the deed, and that the court to whom this question of fact was submitted by consent should have so determined.
■ Having attained the conclusion that the wife has an equitable interest in the property, it becomes necessary to ascertain in whom the legal title remains. This, however, is an easy task. *647The title of the trustee continues so long as it is necessary to support the equitable title of the cestui que trust; it continues until the legal title can be united with the equitable and the trust is performed or executed. But the legal title cannot vest in the wife during coverture, for she can own no personal property at law; it would pass directly to her husband. Unless, therefore, we would altogether defeat,her interest under the deed, we must hold that the legal title to the slaves is still in the trus-* tee for the purposes of the trust, which are not as yet executed, and the legal title being in him, the slaves cannot be sold under executions at law against the husband, but the creditors must resort to a court of equity to separate his equitable interest from that of his wife, and subject it to the payment of their debts.
The view we have taken shows that the court erred in its instructions to the jury, and the judgment must, therefore be 'reversed and the cause remanded.