BURNETT vs. BRANCH BANK AT MOBILE et al., 22 Ala. 642

CHILTON, C. J. A careful examination of the pleadings and proof has fully satisfied us, that the decree of the Chan-eellor is correct. It appears, from tbe proof taken on bebalf of Mrs. Burnett, that tbe slaves Zurrié and Ambra, (tbe latter being tbe mother of tbe others in controversy,) were sent by James Hebbin to her and her husband, John S.

Burnett, after their marriage, and before tbe making of tbe will under which she now claims; and there is not only a want of proof to show that they were not designed as an advancement by her father, but it is fairly inferable from it that they were; and this inference is strengthened by the will itself, which speaks of advancements made of slaves to the children of the testator. True, one witness testifies, that the title remained in James Hebbin, and that the slaves passed under his will; but these were questions of law, about which he was not competent to testify.

Another witness also testifies, that he always understood they were the separate property of Mrs. Burnett, and that her husband held them as the agent of her trustee, Thomas Burnett; and also, that he heard James Hebbin say they were the negroes of his daughter Martha. Aside from the objectionable character of a portion of this proof, it fails altogether to fix a separate estate in Mrs. Burnett.

The intention to exclude the marital rights of the husband, which the law favors, must be made clearly to appear; and there is no evidence which shows that, at the time the advancement was made, there was any intention, on the part of James Hebbin, to exclude his son-in-law. If, then, the slaves were given to the wife, and taken into possession by the husband, his right to them became perfect, and was not divested by his subsequent declarations in favor of the wife, which do not amount to a settlement to her sole and separate use, so as to affect the rights of the husband’s creditors.

The will does not purport to convey any title in these slaves, but, as we have said, recognizes the right to them as having previously vested by way of advancement; and we think the proof fails to show, that John S. Burnett has, by any act of his, divested that title out of himself, and vested it in any one for the sole and separate use of his wife. As against his creditors, this proof should be clear and explicit.

The authorities cited in the opinion of the Chancellor very clearly establish the position he assumed, and show that this pi’operty, baying been sent borne by a father to bis son-in-law, upon bis marriage, must be regarded as an advancement, unless at tbe time a less estate is declared or limited. Olds v. Powell, 7 Ala. 652; see also Williams v. Maull, 20 ib. 720.

The fact that tbe husband may have elected to treat these slaves as tbe property of tbe wife under tbe will of her father, might, in a controversy between tbe wife and tbe husband’s administrator, be received to vest in her tbe title in a court of equity; but while tbe husband is living, be retains tbe power and control over tbe property, and although he may have elected to bold it as agent of tbe wife’s trustee, this does not prevent him from re-asserting bis former title, which was perfect under tbe advancement, and repudiating any title which, by bis mere declarations, be has admitted in favor of tbe wife.

Not being estopped from asserting title in himself, much more should tbe creditors of the husband be allowed to treat tbe property as bis; otherwise, tbe husband could, by bis declarations, build up an estoppel as against bis creditors, while be is left in tbe full enjoyment and ownership of the property. We repeat, that tbe will of James Hebbin confers no separate estate in these slaves, and could have conferred none, as tbe title bad previously vested in the husband of bis daughter by tbe advancement.

And as tbe husband has never conveyed, or attempted to convey any title to them to tbe sole and separate use of tbe wife, or otherwise admitted that she held such an interest, be is left tbe owner of tbe property, and it is subject to bis debts, unless exempt upon grounds not disclosed by tbe proof in this cause. Let the decree be affirmed.