This was an action of detinue, commenced by Robert Leachman, who was succeeded by Davis, the appellee, as administrator of Mrs. Blocker, to recover certain slaves, claimed to be the property of the estate of the intestate. Plea : non dctinet.
The proof, as disclosed by a bill of exceptions, was, that Mrs. Blocker, who was the daughter of William Murphy, was married to John R. Blocker on the 11th of February, 1835, and removed with her husband to Mobile; that early in the summer of that year, her father gave her the negro woman, who, with her subsequent issue, is now the subject of controversy. John R. Blocker, the husband, testified that said slave was not given to him, but that he requested his father-in-law to secure the property to his wife, Mrs. Blocker, to which he assented, and the negro was then placed in their possession, and remained until the death of the wife, which happened in August, 1837, when she was taken as a nurse for the decedent’s little daughter by the husband, to the house of the donor, with the child; that said J. R. Blocker was a member of the firm of Horner, Blocker & Co., of Mobile, which failed in December, 1836, and the firm assets, and the property of the individual members thereof, were assigned to Gayle & Vandei'graff for the payment of debts; that the *421slave in controversy was not assigned, but in preparing a schedule of his property, the witness had an interview with the donor, who was one of the preferred creditors in the deed of assignment, who concurred with him in the conclusion,' that the right of the slave was not in him, but in his wife.— Neither the assignees, nor any one else, claimed any title to her. He alsojjjproved, that the girl, in the fall of 1850, was in possession of the defendant, Jennings, and her value; that his wife was allowed to select this servant from a number of slaves which Maj. Inge had for sale, but he does not know whether any bill of sale was made of her to any one; that he exercised over her such control as a husband usually exercises over the servant-maid of the wife. Witness’impression was, that at the time of the gift the donor inserted a clause in his will setting forth the fact that the girl was given to the sole and separate use of his wife ; that this will was after-wards cancelled, and a new one made on the 17 th of September, 1837 ; he remembers no declaration or language of Judge Murphy, in relation to the title of the slave, made at the time, or immediately before the transfer, addressed either to himself or wife ; that William M. Murphy was present at the interview had between the witness and Judge Murphy, at the time of the assignment above spoken of; does not remember the language used by Judge Murphy, but is positive that they concurred in the fact that the slave belonged to his wife, and not the witness.
The defendant moved to exclude from the jury what this witness said respecting the title to the slave, as conceded by Judge Murphy and himself, when the assignment was made ; but the court hold that it was legal. He also moved to exclude what the witness said in respect to mentioning the fact of the gift in the will, upon the ground that such proof was irrelevant, and could not affect the title to the slave ; but this motion also was rejected; and these rulings of the court, being assigned for error, present the first question for our decision;
It is unnecessary for us to determine whether a separate estate can be created in a married woman by verbal gift, although we confess we cannot well see why it could not, since no writing is required by our law to pass the title to a slave. Be this however as it may, it is too clear to admit of doubt, *422that Judge Murphy intended to give the slave to his daughter, and we may concede that, without more, the title would have vested in the husband; but we have repeatedly determined, that in order to vest the title in the husband, he must have reduced it into possession as husband during the coverture.— He may repudiate all claim as husband to property given to the wife, and elect to treat it as hers, and hold or control it as her trustee ; and if this election is made before the right or title is vested in him, and the coverture is determined while it is so held, his marital rights cannot be asserted af-terwards to it; these rights remain as they were at the time of the dissolution of the marriage by death. In such’ case, the property vests absolutely, in law, in the wife, if she be the survivor, and in her administrator or personal representative if she be the party who first dies.
Whether, as against a creditor of the husband, property given to the wife, without expressions in the gift limiting it to her sole and separate use, could be exonerated from liability, by reason of his refusal to accept the gift as husband, and electing to hold the property as belonging to the wife, is not the question now presented. No creditor of Blocker is complaining ; but one who, according to the testimony of William M. Murphy, was a derivative purchaser from the donor, under a mortgage executed near five years after the consummation of the gift to the wife. Claiming to derive a title through the mortgage of Judge Murphy, made on the 10th day of January, 1840, as deposed to by William M. Murphy, it is very clear that the declarations of the person through whom the defendant claims, made before his alleged purchase, in disparagement of his own title, are legal testimony.
The same reasoning is applicable to the clause inserted in the will. Of course it could have no efficacy as a muniment of title ; but as a declaration of the grantor, reciting the existence of a fact then fresh in Ms mind, it is evidence. It will be observed, that the objection was not that the will should have been produced, or its loss proved, in order to warrant this secondary evidence. The objection was as to its relevancy. It tended to show a gift, and being made at the time of the gift, and as connected with it, it would be admissible upon the other ground of being part of the res gesta.
*423The evidence presents this case: By agreement between the son-in-law and the father-in-law, the latter gives a slave to his daughter, to be held as her property by the husband, who does so hold it, consenting that it shall be hers; thus holding it as hers, she dies ; the slave is placed by the husband with his infant child, as its nurse, in the family of the donor, who, notwithstanding the gift to the daughter, and his acknowledgments, first in his proposed will, and again when taking a lien in which he was preferred by the son-in-law’s assignment, and leaving out this property upon the express ground that she did not belong to his debtor, the son-in-law, but to his wife, the daughter of the donor, makes a mortgage, and embraces her in it; this mortgage is purchased by one cognizant of all the facts, who, without foreclosure, sells by quitclaim to defendant; and the charge of the court presents the question, as predicated upon these facts, whether the administrator of the daughter has the right to the slave as against the subsequent holder under the donor’s mortgage; the husband now deposing that he has not, and never set up, any claim to the slave, except as belonging to the wife as her separate property. The court charged, that, if the jury believed the evidence, which shows these facts, their verdict should be for the administrator of the wife; and in our opinion, the charge was right. The intention clearly was, to vest in the deceased a separate estate, and although, for want of apt language to effect that object, the husband, or his creditors, might, at law, have defeated that intention, yet, as the husband acquiesced in it, and did what, under the proof in this case, equity would have required him to do, namely, held the property not as his own, but for her, it is not for the defendant, who must be charged with a knowledge of the facts, to set up a claim for the husband, and thus defeat the intention, by making the husband the unwilling subject of iniquity for its protection. The husband requested that the property should be given to the wife, and not to him. He received it, and held it, as hers ; he excluded it from his assignment, because itwas hers, by the.concurrence, too, of the very person from whom the defendant deduces his supposed title ; and now, since her death, he still insists and swears that it was hers and irot his; .and since, by her death, the trust is executed, and her repre*424sentative can take and hold the legal title, what right has a third party to intervene, and, without connecting himself in anyway with the supposed title of the husband, compel him to violate his conscience, and the principles of equity, by holding as owner, and not as trustee? If the title had vested in him, it is certainly true, that, in a court of law, he could not, either by his declarations, or by a positive conveyance, have vested it in the wife during the coverture. But in this case it never vested in him as husband. He pretermitted that relation, and expressly waived his marital rights, by receiving and holding it as the separate estate of his wife. This he had the right to do, as against a'll persons who cannot in any way connect themselves with his marital rights to enforce them against his will.
This view renders it unnecessary that we examine any other question raised in the argument of counsel.
Let the judgment be affirmed.