Carroll v. Lee

delivered the opinion of the court.

The pieces of plate which form the subject of dispute between the parties in this case, are claimed by the appellee, under the will of Ignatius Digges, and by the appellant, Daniel Carroll, of Duddington, under the will of Mary Digges, the surviving wife of Ignatius Digges. What were the respective rights of these testators, while living, *508to this property, presents the inquiry at this time first to engage the attention of the Court of Appeals. All the testimony in the cause, was taken on the part of the appellee. From this it appears, that the disputed plate was given to Mary Digges, by one of her brothers, after her marriage with Ignatius Digges; and the question we have to decide, is, whether by the gift it became her sole and separate property, or devolved on her husband, and made a part of his personal estate. A separate interest in a wife in personal chattels, was unknown to the common law. Like her person, her property was under the control of her. husband. This strictness has been much relaxed by the decisions of the courts of equity. It is now fully established, that a separate property may' be held by a married woman, through the intervention of a trust, and even without the interposing office of a trustee. To exclude, how-: ever, the marital rights over her property, a clear intention in the donor, that it shall be for her separate use, must appear. No technical words are necessary to create a separate use, but adequate language must be empLoyed, ih, making the gift, to manifest a decided intention to transfer, a separate interest; to shew that the husband was not to enjoy what the law would otherwise give him.

■ Is this the character of the gift we have now to review ? It was made, it is presumed, by parol, and many years have: elapsed since it was made. What the declared intention of the giver was, if his intention was expressed, is lost in' time, and must forever remain a secret to us. All we know is, it was a present of plate from a brother, to a married' sister. Can we, from this, circumstance of relationship, and’, from the nature of the subject given, infer an intention in him, to give it to her, for her separate property? This in the particular, point that awaits our decision, and it does; not seem to us, that we need be slow in giving it. It is plain, this.naked gift does not justify an inference, that it was her. brothers decided intention to give to, Mary Digges this, plate, for her sole, separate use. We are aware of the case *509of Brinkman vs. Brinkman, adverted to in 3 Atk. 392, where such a gift of plate, from the father of the husband to the wife, immediately on her marriage, was construed to pass the property to her separate use; but we do not feel disposed to yield to it, as an authority. It is a case not regularly reported, and in our apprehension, the subject matter of the gift does not justify the inference, that it was designed for the separate use of the wife. We consider plate as an article of family use, and one that makes as much a part of the household, as any that belongs to it. It is then our opinion, that a gift of plate to a married woman, unexplained as to intention, is a gift to which the marital rights instantly attach, and that the thing given immediately becomes the property of the husband.

There is a further question in this case, that requires a moment of our attention. It arises out of the plea put in by the appellant, to the jurisdiction of the court. The plea states the facts, which are conceded by the pleadings, that at the time of filing the bill, the appellant resided in the District of Columbia, where he had in his possession the plate sought to be recovered. Ought the chancellor to have disregarded the plea, and decreed, as he did, the delivery of the plate, is then the point of inquiry ? Where property in controversy is within the limits of the State, and the claimant resides abroad, the Chancery Court has an undeniable jurisdiction over the case. 1 Atk. 19. 2 McCord, Ch. 437. So where the party defendant is within the State, and the land, or other property in contest, is beyond its limits, although the proceeding is in rem, we apprehend there is no want of jurisdiction in the chancellor. To enforce a decree in a case of this kind, the proceedings may be in personam, as well as by injunction, to recover the possession of the thing disputed. This is the case of Penn. vs. Lord Baltimore, 1 Ves. sen. 454, where Lord Hardwicke held, that the property in dispute being in the Plantations, was no legal impediment to making the decree, the parties to the suit being in England. *510The subject before us, however, is supposed to afford a stronger ease, inasmuch as both the party and property were without the limits of Maryland, at the institution of the suit, of which the defendant was notified by an order of publication. There might be something, perhaps, in this concurrence of facts, if the property had not been removed out of the State, and the appellant had not appeared and answered the bill, as well as except to the jurisdiction. This he did, and contested the question of merits before the chancellor, whether the complainant had aright to recover; and if the decree had been in his favor, would assuredly have forced his adversary into the Court of Appeals, or forever barred him from a further suit for the $ame property. To say nothing of the effect of the answer upon the plea, this, we conceive, is a waiver of it, and a submission to the jurisdiction, and brings the subject as much within the power of the court, as in the case of Penn vs. Lord Battimore, where the party resided within the chancery jurisdiction.

DECREE AFFIRMED.