We think the learned chancellor has, in the main, taken a very correct view of this case, and we fully concur with him in the following propositions :
1. That, as widow of James Machem, the complainant has no. right to hold on to the slaves in controversy, and resort to a court of equity to have them set apart as so much of her share of her husband’s estate. The statute law has provided another forum for making the distribution, in eases where a division or allotment of personal chattels in specie is required to be made of decedents’ estates; and, although there are cases where the ohancery court may rightfully exercise juris*382diction of this kind, this does not fall within that category. No lien upon, or equitable right to the slaves being shown, it is very clear that the' plaintiff’s bill, so far as it depends upon her right as widow or distributee of James Machem, must fall to the ground.
2. "We agree that the will of Merry Hall cannot be reformed, so as to vest in the complainant a separate estate, by reason of any agreement entered into between said testator and the husband of complainant before the will was made, that it should contain such a provision. The will is ambula--tory. The testator could, and non constat but that he did, change his mind. Be this as it may, we must look to the will, and construe it according to the plain import of its terms. If these contain no ambiguous expressions, requiring explanation by proof, we are not permitted to receive oral proof, to alter, add to, or vary its terms. — Jarman on Wills, 342, et seq.; ib. 346-349, and note.
3. It is further very clear, and so it was decided when this same will was presented before this court for construction in 15 Ala. Rep. 313, that in the bequest to complainant of the slaves in controversy, no separate estate is created. It only remained, therefore, that the husband, James Machem, should reduce the slaves into his possession, quoad husband, to complete his right of absolute property in said slaves.
4. We also concur with the chancellor, that any declaration made by James Machem, going to show that the property was the separate estate of his wife, founded in ignorance of his rights, should not be received to divest the property out of his administrator. And here we take occasion to say, that it is very clear he was mistaken, as to the legal effect of the bequest of the property to his wife by the will of her father. He supposed it vested her with a separate property, and effectually excluded'his marital rights. We have seen it did not. But we shall recur to this subject again, when we come to treat of the effect of these declarations in another aspect.
5. The question, however, still remains, Did the husband, James Machem, ever reduce the property into his possession, as husband ? — Bell on H. & W. 49-50; 1 Bright on H. & W. 34; Co. Lit. 351, b. We think the proof set out in this record shows that he did not. It establishes, with reasona*383ble certainty, that it was delivered by the executor of Merry Hall to the complainant, as for her separate property, if not by the positive direction, at least by the consent of her said husband, James Machem, and from that day forth, if his declarations are to be accredited, he regarded and treated the property as belonging to his wife, and as having no claim to it himself. Had he demanded the property of Humphrey Hall, the executor, it does not appear that he. could have obtained the executor’s assent to the legacy, as vesting a title in him. The assent was to the wife, as for her sole and separate use; and the property being thus delivered to her, the concurrence in the gift by the husband, and his continued treatment of it as her property whenever he is heard to speak of it, clearly show that he laid no claim to it as husband, but that it should remain to the wife as her property. This the husband might well have done, whether the will gave him the property through his wife, or not. He had his election to possess himself of the property as husband by suit or otherwise; or, after the wife obtained the actual possession, we will not say that he 'might not, even after consenting to her receipt of it as her separate property, have asserted his claim, and have held it as husband. But the proof shows that he did not do this. At least, complainant shows how she received it, and how he regarded it as hers, .and held it for her; and if he ever changed his mind, the defendant should have proved that, as the complainant is not required to prove that he had not changed his mind, having shown his settled purpose, — this being a negative which she could only prove by the character of proof which she has adduced. His declaration, as proved by Mr. Cunningham, is too indefinite and weak to create a counter presumption, especially as it conflicts with more specific declarations made to the same witness.
6. It follows, however, if this be a correct view of the facts, and the marital rights of the husband never attached to 'the slaves, that the complainant has no need to resort to chancery; for, upon the death of her husband, her remedy is complete at law. The decision of this court in 15 Ala., above referred to, was predicated upon the facts then presented, showing a delivery to the wife without more. The *384marital rights of the husband consequently became vested, and the property absolutely his eo instanti. This record varies the facts, showing the delivery to be for her separate use, by the concurrence of the husband, followed up by his oft-repeated declarations, that the property was lier’s, and that he was merely protecting it for her. As the law court furnishes a complete and adequate remedy in this aspect of the case, chancery w'ill not entertain jurisdiction.
It is only upon the principle, that the husband’s marital rights did attach, and that he subsequently made a gift, provision, or settlement' of the slaves upon the complainant, that she could resort to this court, after his death, to enjoin the action of his personal representative for their recovery. The bill is not filed upon any such agreement, or to enforce any such gift by way of providing for her; and, if we concede that his declarations tend to establish the existence of a gift to the wife, there being no allegations in the bill to which the proof would be applicable, no decree can be rendered upon it. — 3 Ala. Rep. 421; 11 ib. 960; 13 ib. 681; 22 ib. 132; 23 ib. 845; 25 ib. 212; 6 John. 565; Story’s Eq. Pl. § 257.
7. The fact that James Machem was mistaken as to the legal effect of the bequest' to his wife, and that his declarations were predicated upon such mistake, (if such be the fact,) would, as we have suggested, destroy the effect of such declarations as indicating an intention to part with his right to the property, and to vest that right in his wife. But, if he refused to accept the gift as one to himself, and conceded the right of his wife to accept it as of her separate estate,— directed the executor so to deliver it to her, and the same was so delivered, and said Machem held it as her property, as shown by his repeated declarations qualifying his possession, then it is wholly unimportant whether his declarations and conduct were founded in a mistaken view of his rights or not; for he has not reduced the property into possession as husband. That his failure to do so was the consequence of a mistake, does not change the result, any more than delay in the collection of a debt due the wife dum sola, under the mistaken opinion by the husband that it would be paid to him without suit, or would go to his personal representative in the event of his death before its collection. The mistake, in *385either case, could not operate to confer upon the husband, as such, the property or the money. No question as to constructive possession arises in this case, and hence we do not notice that position of the counsel. The husband either had, or had not, possession as husband. If he had not, the defence is legal; if he had, but conceded the property to his wife, this matter of equitable concession or agreement must be averred in the bill, before it can be made the foundation for a decree. See authorities above.
We have thus been particular in noticing the several phases in which this case is presented, to avoid misconception, as well as to enable the parties to understand their rights, and the primary court to adjudicate them.
■ It follows that there is no error in the decree of the chancellor in dismissing the bill. It is consequently affirmed.