majority">Mr. Chief Justice Smith

delivered the opinion of the court.

This is an appeal from a decree of the court of probates of Madison county.

Malcom Cameron intermarried with Tennessee Penquite, in *119the State of Mississippi, on the 17th of November, 1841. When the marriage occurred, Mrs. Cameron was the owner of a large number of slaves, which were reduced into his possession by Cameron during the continuance of the marriage. Mrs. Cameron died in 1841, leaving a son, Philip P. Cameron, born of the marriage, her sole heir at law. Philip P. died in 1852, and his estate descended to John T. Camerbn, his heir at law, who was his half brother, being the son of Malcom Cameron by a subsequent marriage. Malcom Cameron claimed a life interest for his own life in the usufruct of the slaves, and the contest is between him and John T. Cameron, who it is conceded has succeeded to the estate, which passed by operation of law to the heir of Mrs. Cameron. Upon this state of facts it was held by the court, that Cameron’s right to the usu-fruct of the slaves .terminated on the death of his wife; and hence, as the guardian of Philip P. Cameron, he was bound to account for their hire.

The question for our consideration, therefore, is this. Did the husband by virtue of a marriage contracted under the act in regard to the rights of married women, approved February 15,1839, acquire a right for his own life, to the usufruct of the slaves of the wife in the event she should die first leaving issue of the marriage ? To determine this question, we must refer to the provisions of the act which define the respective rights of the husband and wife, in reference to the slave property of the latter owner at the time <pf the marriage.

The second section of the act provides, “ that when any woman possessed of a property in ’ slaves, shall marry, her property in such slaves, and their natural increase, shall continue to her notwithstanding her coverture; and she shall have, hold, and possess the same, as her separate property, exempt from any liability for the debts or contracts' of the husband.”

By the fourth section it is provided, that “ the control and management of such slaves, the direction of their labor, and the receipt of the productions thereof shall remain to the husband agreeably to the laws heretofore in force.” And further, “ in case of the death of the wife, such slaves descend and go to the children of her and her said husband jointly begotten; *120and in case there shall be no child bom of the wife during such her coverture, then such slaves shall descend and go to the husband and his heirs.” Hutch. Code, 497.

In Knott v. Lyon, 26 Miss. R. 548, the rights of the husband to the slave property of the wife, as affected by the provisions of this statute, were the subject of examination. It was there said that before the enactment of the statute, upon the consummation of the marriage,'the whole personal estate of the wife was instantly liable for the. debts of the husband, and subject to his unlimited right of alienation. It might be transferred, without consideration, to strangers, wasted in folly, and extravagance, or lost by the misfortune of the husband. In either case, the law offered neither assistance nor protection. However ample the fortune which the wife, upon the marriage, brought to the husband, the law made no. provision out of it for her support, or the maintenance,and education of the children of the marriage. These were the evils which the legislature, by the enactment of the statute, designed to provide against. To effect these purposes, it was necessary to enlarge the capacity of the Jeme covert to acquire and hold property as her separate estate; and as a necessary consequence, to abridge in a corresponding ratio the marital rights of the husband. The capacity to acquire and hold separate property thus conferred upon femes covert, and the separate estate in her slaves secured to the wife, was so much taken from or carved out of the rights of the husband, arising out of the contract of marriage at common law.

The subject of inquiry in Knott v. Lyon, was not the precise question now under consideration. The above remarks are, however, entirely applicable, and suggest the principle by which the rights of the parties to this controversy are to be determined. That principle is, that the rights of the husband in regard to the personal property of the wife must be considered as unaffected by the provisions of the statute, unless where' they a,re changed by express provision, or where the intention to alter them arises from necessary implication.

Let us apply this rule, under the law as it existed prior to the passage of the act. The husband became the absolute *121owner of the personal chattels in possession of the wife at the time of the marriage, and of all her choses in action when reduced into his possession. But by the second section of the statute, this right of the husband has been, by express provision, materially changed. The property of the wife in her slaves and their natural increase is continued to her, notwithstanding her coverture; and such right of property is not to be affected by the debts or contracts of the husband. If the statute had closed with these provisions, it might have been matter of doubt whether it was the intention of ■ the legislature not only to deprive the husband of the fee in the slaves of the wife, but also .to take from him all right to their usufruct during the continuance of the marriage. But the statute has gone further, and has declared expressly, that the control and management of such slaves, and the receipt of the productions of their labor shall remain to the husband, agreeably to the laws theretofore in force. There is no possibility of misapprehending this provision ; and to ascertain the precise character and extent of the interest or estate in the usufruct of the slaves left in the husband, we have only to recur to the previous laws regulating the marital rights of the husband in regard to this description - of property, and to the provision under which it descends to the children of the marriage.

Under the previous law, the husband acquired the absolute property in slaves thus situated, and as a necessary incident of such right of property, he acquired also the right to receive and appropriate the proceeds of their labor; limited, however, by the manifest objects of the statute. These objects were to reserve to the wife, in the event that she should survive the husband, her own slaves and to secure to the children born of the-marriage the right of succession to the same. The statute has-drawn a clear distinction between the right of property in-slaves thus situated, and the right to its issues and profits; and has severed the estate in fee-simple from the usufruct. The-property of the slaves remains to the wife, as her separate estate, not chargeable with the debts or by the contracts of the-husband, whilst the proceeds of their labor are unconditionally-vested in the husband. Hence, if a marriage contracted under.*122the statute, is to be regarded as operating a gift or grant of the usufruct to the husband, he will be entitled to it for his own life, unless such an .interest is manifestly inconsistent with the objects of the statute.

It is very evident, that the property in the slaves, which is expressly reserved to the wife, is not inconsistent with the construction which vests in the husband an interest or an estate for his own life in the usufruct. For unless the wife should be the survivor, the provisions of the statute would avail nothing to her.

But it is said the provision under which the slaves “ in case of the death of the wife descend and go to the children,” born of the marriage, is irreconcilable with the husband’s right for his own life to the proceeds of their labor. We do not perceive the force of this objection. The statute has severed “ the property in such slaves ” from the right to the proceeds of their labor. The slaves descend to the children, subject to the rights of the husband acquired by the marriage. The case is precisely analogous to that of real estate which descends to the heir of the wife, subject to the curtesy of the husband.

The first clause of the fourth section of the statute, in terms, leaves to the husband the same right to the usufruct to which he was entitled by the preexisting laws. Hence, but for the provisions reserving the slaves to the wife, and securing them to the children of the marriage, he would have the unrestricted right to dispose of the proceeds of their labor, not only for his own life, but in perpetuity. This, it is clear, he could not do, as it would necessarily defeat the express provisions of the statute. But the construction which gives to the husband the usufruct, during his life, is not only sustained by the spirit of the statute, but it is also consistent with the policy of the law, as in the event of the husband surviving the wife, he would be chargeable with the maintenance and education of the children to whom the slaves would descend.

Let the. decree be reversed and the cause remanded.

Handy, J., concurred in the above opinion.

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