Handy, J.,
delivered the opinion of the court.
This was a petition filed by the appellees in the Probate Court of Holmes county against the appellant, for distribution of the estate of his deceased wife, Mrs. Ailsey Olive, of which he was administrator.
[113]*113The material facts appearing by the record are as follows: Prior to the year 1836, the intestate being the wife of James Olive, in the State of Georgia, where they resided and were married, with her own means purchased certain slaves, which were conveyed to Jesse B. Walton, as trustee, for her sole use and benefit; and in the year 1836, the parties removed to this State, bringing with them the slaves, which remained in the possession and enjoyment of Olive and his wife. In the year 1842 or 1843, a slave was purchased with the proceeds of the labor of the slaves brought from Georgia by Walton, and was held by him for the separate use of Mrs. Olive; and after the purchase, that slave became the mother of several children; and in like manner Mrs. Olive purchased, between the years 1839 and 1846, a barouche, one horse, one mule, and some furniture, and on the 24th February, 1846, two other slaves. Subsequently to the 28th February, 1846, one other slave was purchased with like means, and conveyed to Walton, and held by him for the sole and separate use of Mrs. Olive, as were also a horse and some furniture. Mrs. Olive died in the year 1852, leaving the petitioners, her children and grandchildren, the issue of a former marriage, and one child by her marriage with Olive.
Upon this state of facts, the court below decreed that the slaves brought from Georgia, belonged to the surviving husband, in virtue of his marital rights, and were not subject to distribution; and that the slaves and their increase, and the other property acquired by Mrs. Olive since the year 1839, wrere her separate property, and should be distributed according to law among all the children and grandchildren of Mrs. Olive; and from that decree Olive, as her administrator, appeals.
There is now no controversy with respect to the specific slaves brought by Olive and wife from the State of Georgia, that question having been settled when the case was heretofore in this court.
But it is insisted in behalf of the appellant that the decree is erroneous, in holding that the slaves and other property, acquired since the year 1839, were the separate property of Mr. Olive, and are within the operation and policy of the statutes of 1839 and 1846, in relation to property of married women.
The first position taken in support of this view is, that the conveyances for this property, not having been made to Mrs. Olive [114]*114directly in her own name, but to a trustee for her separate use, are not embraced within the provisions of the statute of 1839, which merely provides that a “ married woman may become seised or possessed of any property, real or personal, by direct bequest, demise (devise), gift, purchase, or distribution, in her own name, and as of her own propertyand, therefore, that the title must be considered as having been acquired and the conveyances made, without reference to the rights of separate property secured to the wife under that statute; but upon common law principles the surviving husband was entitled to the property by virtue of his marital rights.
In considering this question, we must look to the true spirit and object of the statute, and construe its language with reference to the policy indicated by it. Before the passage of the Act, a married woman was incapable of holding to her separate use, property conveyed directly to her, in her own name. The primary object of the statute was doubtless to remove that incapacity, and to secure to her separate use all property which she might acquire, except the same should come from her husband ; and hence provision, in the first place, is made, enabling her to take by direct conveyance to her. But this is only a mode of accomplishing the end intended, the policy being to secure to the wife a complete title to all such property as might be acquired by her, to her sole and' separate use, for the benefit of herself and her children. This was a new policy in our laws, founded upon enlarged views of protection and justice to the rights of a class of society entitled to the most liberal protection. It was the substantial right, which the legislature intended to secure, rather than to prescribe a form, as necessary to be complied with, in order to the enjoyment of the right; and therefore, the spirit of the statute is to secure to the benefit of the wife and her children, all property which may thereafter be conveyed to her separate use and benefit, without regard to the form of the conveyance.
This is manifest from the general scope of the statute, and especially from the third section, which provides, that “ when any woman, during coverture, shall become entitled, to, or possessed of, slaves, by conveyance, gift, inheritance, distribution or otherwise, such slaves, together with their natural increase, shall inure and belong to the wife, in like manner as is above provided, as to slaves [115]*115which she may possess at the time of her marriage.” This language is broad and comprehensive, and shows that it was not intended to confine the benefit provided to cases of conveyance to the wife, in Tier own name, and directly, but that it was intended to embrace all cases, in which she should become entitled to or possessed of slaves in her separate right.
But it is said, that the separate use and enjoyment were already secured to her, as the law then stood, in cases of conveyance to a trustee, for her sole and separate use; and, therefore, that such cases could not have been in the legislative contemplation. The statute, however, makes a most important alteration of the old law, as to the transmission of the property, in cases of that sort. By the old law', it became the property of the husband on the death of the wife; but by this statute, it descended to the children, who appear to have been especial objects of consideration in instituting this policy. If the legislation was intended for the benefit of children, as it most clearly was, it is therefore manifest that there was a necessity for extending the policy, to cases like the present, in which the separate use, so far as the wife was concerned, was secured to her by the old law, but not to the children. And considering this important feature of the new policy established, it cannot be supposed that the legislature intended to restrict the benign policy in favor of children, to cases where the conveyance should be made directly to the wife, to the exclusion of cases in which the sole and separate use and possession were secured to her, through the medium of a mere nominal trustee.
We therefore think it evident that the legislature intended the benefits provided by the statute, to extend to all cases in which slaves should be conveyed to the sole and separate use of the wife, whether directly or through the medium of a trustee, unless the trust deed should contain limitations contrary to the rules prescribed in the statute; and that the first section enumerates conveyances made directly to the wife in her own name, merely in order to legalize such conveyances, and because they could not be made under the old law. And it follows that the position contended for cannot be maintained.
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Handy, J.,
delivered the opinion of the court.
This was a petition filed by the appellees in the Probate Court of Holmes county against the appellant, for distribution of the estate of his deceased wife, Mrs. Ailsey Olive, of which he was administrator.
[113]*113The material facts appearing by the record are as follows: Prior to the year 1836, the intestate being the wife of James Olive, in the State of Georgia, where they resided and were married, with her own means purchased certain slaves, which were conveyed to Jesse B. Walton, as trustee, for her sole use and benefit; and in the year 1836, the parties removed to this State, bringing with them the slaves, which remained in the possession and enjoyment of Olive and his wife. In the year 1842 or 1843, a slave was purchased with the proceeds of the labor of the slaves brought from Georgia by Walton, and was held by him for the separate use of Mrs. Olive; and after the purchase, that slave became the mother of several children; and in like manner Mrs. Olive purchased, between the years 1839 and 1846, a barouche, one horse, one mule, and some furniture, and on the 24th February, 1846, two other slaves. Subsequently to the 28th February, 1846, one other slave was purchased with like means, and conveyed to Walton, and held by him for the sole and separate use of Mrs. Olive, as were also a horse and some furniture. Mrs. Olive died in the year 1852, leaving the petitioners, her children and grandchildren, the issue of a former marriage, and one child by her marriage with Olive.
Upon this state of facts, the court below decreed that the slaves brought from Georgia, belonged to the surviving husband, in virtue of his marital rights, and were not subject to distribution; and that the slaves and their increase, and the other property acquired by Mrs. Olive since the year 1839, wrere her separate property, and should be distributed according to law among all the children and grandchildren of Mrs. Olive; and from that decree Olive, as her administrator, appeals.
There is now no controversy with respect to the specific slaves brought by Olive and wife from the State of Georgia, that question having been settled when the case was heretofore in this court.
But it is insisted in behalf of the appellant that the decree is erroneous, in holding that the slaves and other property, acquired since the year 1839, were the separate property of Mr. Olive, and are within the operation and policy of the statutes of 1839 and 1846, in relation to property of married women.
The first position taken in support of this view is, that the conveyances for this property, not having been made to Mrs. Olive [114]*114directly in her own name, but to a trustee for her separate use, are not embraced within the provisions of the statute of 1839, which merely provides that a “ married woman may become seised or possessed of any property, real or personal, by direct bequest, demise (devise), gift, purchase, or distribution, in her own name, and as of her own propertyand, therefore, that the title must be considered as having been acquired and the conveyances made, without reference to the rights of separate property secured to the wife under that statute; but upon common law principles the surviving husband was entitled to the property by virtue of his marital rights.
In considering this question, we must look to the true spirit and object of the statute, and construe its language with reference to the policy indicated by it. Before the passage of the Act, a married woman was incapable of holding to her separate use, property conveyed directly to her, in her own name. The primary object of the statute was doubtless to remove that incapacity, and to secure to her separate use all property which she might acquire, except the same should come from her husband ; and hence provision, in the first place, is made, enabling her to take by direct conveyance to her. But this is only a mode of accomplishing the end intended, the policy being to secure to the wife a complete title to all such property as might be acquired by her, to her sole and' separate use, for the benefit of herself and her children. This was a new policy in our laws, founded upon enlarged views of protection and justice to the rights of a class of society entitled to the most liberal protection. It was the substantial right, which the legislature intended to secure, rather than to prescribe a form, as necessary to be complied with, in order to the enjoyment of the right; and therefore, the spirit of the statute is to secure to the benefit of the wife and her children, all property which may thereafter be conveyed to her separate use and benefit, without regard to the form of the conveyance.
This is manifest from the general scope of the statute, and especially from the third section, which provides, that “ when any woman, during coverture, shall become entitled, to, or possessed of, slaves, by conveyance, gift, inheritance, distribution or otherwise, such slaves, together with their natural increase, shall inure and belong to the wife, in like manner as is above provided, as to slaves [115]*115which she may possess at the time of her marriage.” This language is broad and comprehensive, and shows that it was not intended to confine the benefit provided to cases of conveyance to the wife, in Tier own name, and directly, but that it was intended to embrace all cases, in which she should become entitled to or possessed of slaves in her separate right.
But it is said, that the separate use and enjoyment were already secured to her, as the law then stood, in cases of conveyance to a trustee, for her sole and separate use; and, therefore, that such cases could not have been in the legislative contemplation. The statute, however, makes a most important alteration of the old law, as to the transmission of the property, in cases of that sort. By the old law', it became the property of the husband on the death of the wife; but by this statute, it descended to the children, who appear to have been especial objects of consideration in instituting this policy. If the legislation was intended for the benefit of children, as it most clearly was, it is therefore manifest that there was a necessity for extending the policy, to cases like the present, in which the separate use, so far as the wife was concerned, was secured to her by the old law, but not to the children. And considering this important feature of the new policy established, it cannot be supposed that the legislature intended to restrict the benign policy in favor of children, to cases where the conveyance should be made directly to the wife, to the exclusion of cases in which the sole and separate use and possession were secured to her, through the medium of a mere nominal trustee.
We therefore think it evident that the legislature intended the benefits provided by the statute, to extend to all cases in which slaves should be conveyed to the sole and separate use of the wife, whether directly or through the medium of a trustee, unless the trust deed should contain limitations contrary to the rules prescribed in the statute; and that the first section enumerates conveyances made directly to the wife in her own name, merely in order to legalize such conveyances, and because they could not be made under the old law. And it follows that the position contended for cannot be maintained.
Again, it is contended in behalf of the appellant, that if the property was held under the operation of the Act of 1839, so much of [116]*116it, as was conveyed before the passage of the Act of 1846, was vested, by the fourth section of the former Act, in the child of Olive and wife, which interest could not be divested by the Act of 1846; and hence, that that property was not subject to distribution among that child and the children of the former marriage of Mrs. Olive.
This point has been expressly decided in Marshall v. King, 24 Miss. 85, in opposition to the position contended for.
It is supposed by counsel that the principle stated in that case was intended to be overruled in the case of Garrett v. Dabney, 27 Miss. 845. But that is a misapprehension. The question in that case was, whether a married woman had such an absolute power of disposition of property held by her to her separate use, as to enable her to dispose of it by will ? And the principle there stated is, that rights were vested in the husband and children, which could not be defeated by the mere act of the wife. The vested rights of the husband and children are spoken of only with reference to the incapacity of the wife to defeat them by her sole conveyance of the property, and not to hold that an estate was absolutely vested in the children at all events. And this is apparent when the expressions referred to, are taken in connection with the context.
The only other ground of error assigned is, that the decree charged the distributee West, with certain lands alleged by the amended petition, to have been conveyed to him as an advancement.
It is said that this was erroneous, because the answer denies the advancement, and there was no proof to sustain the allegation of the petition. This is true with respect to the tract .of land, mentioned in the original petition. But the amended petition charges that another specified tract of land, was given to this distributee by way of advancement. The answer does not deny this, but states the respondent’s belief, that it was intended to be given to him as a compensation for certain services rendered by him to the intestate, for which he made no charge. The record does not purport to set out the proof taken in the cause, and therefore we cannot say that the decree is erroneous, especially, as the allegation of the petition is not positively denied.
Upon consideration of the whole case we think that the decree is [117]*117correct; and it is therefore affirmed, and the cause remanded, to be proceeded with upon the decree.