THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 REPORTS OF CASES 
 
 ARGUED AND DETERMINED IN 
 
 THE SUPREME COURT OP 
 SOUTH CAROLINA 
 
 COVERING 
 
 ALL THE CASES (LAW AND EQUITY) FROM THE ORGANIZA- 
 TION OF THE COURT (BAY'S REPORTS) UP TO 
 AND INCLUDING VOLUME 25 OF THE 
 SOUTH CAROLINA REPORTS 
 
 ANNOTATED EDITION 
 
 UNABRIDGED, WITH KEY-NUMBERED NOTES AND REFERENCES BY THE 
 EDITORIAL STAFF OF THE NATIONAL REPORTER SYSTEM 
 
 BOOK 27 
 
 LINING A VERBATIM REPRH 
 
 VOLS. 3, 4 & 5, RICHARDSON'S EQUITY REPORTS 
 
 CONTAINING A VERBATIM REPRINT OF 
 
 (O V^lV KtV NUMBf R SrSTEM^ 
 
 ST. PAUL 
 
 WEST PUBLISHING CO. 
 
 1917
 
 
 ^7 
 
 Copyright, 1917 
 
 BY 
 
 WEST PUBLISHING COMPANY 
 (Book 27 S.Car.)
 
 REPORTS 
 
 OF 
 
 CASES IN EQUITY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS AND COURT OF ERRORS 
 OF SOUTH CAROLINA 
 
 VOLUME III 
 
 FROM NOVEMBER, 1850. TO MAY. 1851 
 
 BOTH INCLUSIVE 
 
 By J. S. G. RICHARDSON 
 
 STATE REPORTER 
 
 COI.r.MIUA, S. C. 
 PRINTED r.V A. S. .lOHNSTON 
 
 isr)2 
 
 ANNOTATED EDITION 
 
 ST. PAUL 
 WEST PUBLISHING CO. 
 
 1U17 
 
 583311
 
 CHANCELLORS 
 
 DURING THE PERIOD COMPRISED IN THIS 
 VOLUME 
 
 Hon. job JOHNSTON, 
 " BENJ. F. DUNKIN, 
 " GEORGE W. DARGAN, 
 " F. H. WARDLAW. 
 
 3Kich.J=:q. (vi)
 
 TABLE OF CASES REPORTED. 
 
 Page 
 
 Atohoson V. Robertson lo'J 
 
 Arnold V. Mattison IHo 
 
 Itailey V. Patterson 150 
 
 r.arksflale v. (iainage 271 
 
 r.oiil V. Fisher 1 
 
 liowie V. Free 4().'{ 
 
 Uriirgs V. llolcoinlie IH 
 
 l*>rou<;liton v. T<'lfer 4.".1 
 
 lirown V. Chesterville Aeademy Soc '.'>{\'2 
 
 I'.rowii V. Smitli 4(i5 
 
 I'uist V. 1 )a\ves 2.S1 
 
 Callioim V. Furiifsoii KiO 
 
 Clarke v. Jenkins :ns 
 
 Clifford V. Kea<l L'lS 
 
 ("oldin^ V. l'.adm>r :')t5S 
 
 Collier V. Collier ;"..") 
 
 Cooi)er V. Tlioniasson 440 
 
 Connts V. Clarke 41,S 
 
 (^rossl)y V. Smith 244 
 
 1 >iekinson v. Way 412 
 
 I )onnelly v. J-]\\art IS 
 
 I'dotman v. rendersrass ',V.\ 
 
 I'ootnian v. Staggers ;!."> 
 
 1 laninmnd \-. Aiken lilt 
 
 Ilastie V. r.aker 2()S 
 
 Hay V. Hay ;i,s4 
 
 1 li^uenhottoin v. I'eyton MtIS 
 
 Holmes V. Holmes (51 
 
 Hnll V. Hull <;-) 
 
 I Innt V. Cuttino M't7t 
 
 Hunt \-. Smitii 4<!.''> 
 
 Inabinit v. Inaldiiit .'ITO 
 
 ',', Hk m.Vai. . (v 
 
 Johnson v. Clarkson. 
 
 Pago 
 . 305 
 
 Kinard v. Hiers 42.'' 
 
 Kuhtman, Ex parte 2;17 
 
 Lesly V. Collier 12."» 
 
 Lewis V. Price 172 
 
 AIcBurney v. Walter, note 2t>() 
 
 -MeLnre v. Yoiiug Z^~^*^ 
 
 Massev, In re 1.'. 
 
 Moore V. MeWilliams in 
 
 Mnlligan y. Wallace Ill 
 
 Murphy v. Caldwell 20 
 
 Xix V. Ilarley ;'>7!> 
 
 Peyton v. Enecks, note .'i'.i'.t 
 
 Pringle v. Kavenel .■!42 
 
 Saekett's Harbour Bank v. Rlake 22."( 
 
 Skrine v. Walker 2(i2 
 
 Smitli V. Hunt 4()."'> 
 
 Stacy y. I'earson 14S 
 
 Swinton v. Eirlestou 201 
 
 Taylor v. McUa !»»i 
 
 Telfair v. Howe 2.'>.~> 
 
 Temideton y. Walker ~A'-\ 
 
 Tluimasson v. Kennedy 440 
 
 Thomson v. Palmer II'.O 
 
 Thomson v. Peyton SOS 
 
 Verdier v. McBurney, note 2(>1 
 
 W- 
 
 V. H- 
 
 note . 
 
 tit; 
 
 Walker v. Crosland 2.'. 
 
 Wheeler v. Duiant 4r)2 
 
 Witherspoou, Ex parte 13 
 
 ii)t
 
 CASES IN EQUITY 
 
 ABGLKD AND DETERMINED IN THE 
 
 COURT OF APPEALS 
 
 AT COI.U1MBIA, SOUTH CAROLIXA— NOVEMBER AND 
 DECEMBER TERM, 1850. 
 
 CnAXClCLLOkS PrIvSENT. 
 
 Hon. job JOIIXSTOX, 
 " a F. DUXKIX. 
 
 " a. w. dar(;ax. 
 
 " F. H. WARDLAW. (o) 
 
 3 Rich. Eq. ♦! 
 *rAT'L BOFIL :in(l Wifr CAROLIXE. MAR- 
 THA R. BOFIL. HARRIET K. BOFIL. v. 
 JOHX FISHER. SAMUEL FAIR. ROB- 
 ERT LATTA. JOHX J. KIXSLER. JOHX 
 LOMAS. ELI KILLIAX. JOHX WHEEL- 
 ER, JOHX A. CRA'.VFORI). EDWIX J 
 SCOTT. JA.MES L). TRADEWELL. JOS- 
 EI'H E. FRY, P.EXJAMIX RAWLS. 
 ALEXAXDER HERBEMOXT, Jr MARY 
 E. BOFIL. 
 
 (Columbia. Nov. mid Dec. Term, 18.10.) 
 \ I II fonts (©==>:!.•;. I 
 
 '» li;it the Court of Ecniity lias the power to 
 SHI tlie estates, whether vested or contingent, 
 ot infant rcinainder-inen. who are jiarties hefore 
 the ( ourt. IS iiiuiuestionahle: the Court also 
 lias the power to bar. by its decree for sale of 
 the property, the interests of unlioiu contingent 
 reniain<ler-in<'ii. and of eontiiiwut reniainder- 
 luen. rcsidmi; abroad, whose names and places 
 ot residence are unknown, and who of course 
 cannot be made parties before the Court. 
 
 jEd.Xote.— Cited in Willimau v. Holmes, 4 
 L_ich. L(|. 47<;; Bouknisht v. Brown Id S C 
 1<0: I'earson v. (\ultoii. IS g. C nS • Lerov 
 V City Council of Charleston. L*6 S ' C 7S'- 
 Moseley v. llankinson. L"_' S. C. .'{L>'.» ; De Leoii 
 i;- J^'";';"- J.''" J*--- -i-'-: Faber v. Faber. 7ti 
 cA c,- .V^'ooH'.'^" S- ^'^- ^"": II""t V. Cower. 
 HO^S. C. &•?, Gl S. E. 2LS. 1L>S Am. St. Rep. 
 
 ,.,.^''<^'' otl^^»" P'lse.s, see Infants. Cent. Dis S 
 <.b; Dec. Dig. <©=»;«.] '^ '^ 
 
 I /./■/(• Ksttitcs <©=3L'7.J 
 
 In such cases, the Court acts upiui the pr-.p- 
 erty, and. by the sale under its decree, vests a 
 tee-simple title lu the purchaser; the rights of 
 
 *2 
 all the parties in interest are *transferred from 
 the proi,erty to the fun.l arising fr.mi the sale, 
 
 ('/) Elected during the term. 
 
 and, so far as it is practicable, are protected; 
 and should the fund be afterwards lost, the 
 original rights of the parties to the property are 
 not ther(>by revived. 
 
 I Ed. Xote.— Cited in Powers v. Bulhvinkle, 
 :.:{ S C. 801'. 11 S. E. 971: Mauldin v. Maul- 
 din. 101 S. C. 7, S5 S. E. (;i7. 
 
 For other cases, see Life Estates, Cent. Dis. 
 § 49 ; Dec. Dig. <g=>27.] 
 \ Infants €==30.] 
 
 To a bill for such a sale, it is sufficient, it 
 seems, if the person holding the life estate, and 
 all other persons in esse, who have au interest 
 and are known, are made parties. 
 
 [Ed. Xote.— For other cases, see Infants, Cent 
 l>ig. SS S5-S9; Dec. Dig. (®=»39.] 
 l/nfiints <S=o9.1 
 
 The order for .sale is a matter of discretion 
 with the Court, and may be confined to a part 
 only of the property. 
 
 _ I Ed. Xote.— Cited in Kolb v. Booth, 80 S C, 
 ;)10. (Jl S. E. 941.'. 
 
 For other cases, see Infants. Cent. Dig. §S 
 S;>-89; Dec. Dig. <®=d.39.] 
 
 I This case is also cited in K(db v. Booth. 80 S. 
 C. 511. 01 S. E. 941'. that where life tenant 
 is niiprovident the court may direct invest- 
 ment of principal fund.] 
 
 Before 
 1850. 
 
 Everything noces.sary to a full understand- 
 ing of this ca.se, i.s stated in the oi»inion de- 
 livered in the Court of Appeals. 
 
 ^V. F. DeSaussure, for tlie appellaut. 
 Tradeweli, contra, 
 
 DARfJAX, Ch., delivered the opinion of the 
 court. 
 
 The late Xicholas Ilerbeinont, by his will, 
 dated the 3rd of September, A. D. 1830, de- 
 
 Dargan, Ch., at Columbia, June, 
 
 €=DFor other ca.es see same topic and KEY-x\UMBER in all Key-Numbered Digests and Indexes 
 i» IvICII.iliQ. — X
 
 *2 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 vised and bequeathed his whole estate, real 
 and personal, after the death of his ^vife, to 
 his grand-son, Paul Bofil, during his life, to 
 be put in his possession when he should at- 
 tain the age of twenty-one years. The will 
 further provides: "should he (Paul Bofil) die, 
 leaving a wife and children alive at the time 
 of his death, I devise and bequeath one- 
 fourth of said estate to his wife, and the 
 remaining three-fourths to his child or chil- 
 dren, including the descendants of any one 
 that may have died before him. Should the 
 said Paul Bofil die, leaving no widow, I de- 
 vise u*i whole of my estate to his children 
 living at his death, including the descendants 
 of any that may have died during his life. 
 Should he die, leaAing no children or de- 
 scendants living at his death, I devise and 
 bequeath to his widow one-fourth, and the 
 remaining three-fourths I devise and be- 
 (liieath as follows: to wit, one-half to my 
 grand-son, Alexander Herbemont, and such 
 other children as my son Alexander, by his 
 present or any future marriage, may have 
 living at that period, and the descendants of 
 any that may ha^ e died ; and the other half 
 to such of my relations in France, then liv- 
 ing, as may be entitled to inherit from me as 
 
 *3 
 
 next of kin, ^according to the laws of this 
 State, if I had died without lineal descend- 
 ants. To give effect to this bequest, I direct 
 that the half thus allotted to them be taken 
 from the personal property, as they cannot 
 hold real estate." 
 
 "If the said Paul Bofil should die, leaving 
 neither wife nor child, nor other lineal de- 
 scendants alive at the time of his death, then 
 the provision made for his widow, in the last 
 clause above, I devise and bequeath as the 
 other property mentioned in that clause." 
 
 By the seventh clause of the second codicil, 
 the testator directs that the following words 
 be added to the foregoing clause, at the end 
 thereof, to wit: "So that my said grand-son 
 shall take absolutely one-half of my whole 
 estate, and my next of kin in France shall 
 take the other half." 
 
 When Paul Bofil attained the age of 
 twenty-one years, he was put in possession 
 of the property, according to the directions 
 of the will. Having become largely indebted, 
 judgments were recovered against him, and 
 executions lodged, by virtue of which, his 
 life estate in the greater portion of the prop- 
 erty left to him by his grand-father, has 
 been sold by the sheriff. The sales by the 
 sheriff, and the voluntary sales by Paul Bofil 
 himself, embrace all the real estate ; and the 
 personal property has been entirely dissipat- 
 ed. Paul Bofil has contracted matrimony, 
 and has a wife, who is living, and .several 
 children, who are infants, all of whom, with 
 the wife, are parties in pi-oper form to these 
 proceedings. Having wasted his entire estate, 
 and having no profession or trade, he is uu- 
 2 
 
 der the necessity of earning a scanty sub- 
 sistence for himself and family, by his wages 
 as a common laborer. They are reduced to 
 the lowest state of poverty and destitution. 
 And the children, with a comfortable estate 
 in expectancy, contingent upon the death of 
 their father, are, in the mean time, suffering 
 from hunger and nakedness, and are being 
 brought up without education, either mental 
 or moral. 
 
 The sales by the sheriff, as well as those 
 
 made voluntarily by Bofil himself, were at 
 
 very inadequate prices, when the prices are 
 
 considered in reference to the fee-simple val- 
 
 *4 
 
 ue of the pro*perty. But the real estate con- 
 sists principally of unimproved lots in the 
 town of Columbia, with several tracts of 
 land in the district of Richland. The pur- 
 chasers cannot with any safety or prudence 
 improve real estate, the title of ^^■hich, as to 
 duration, is so uncertain. Undei' these cir- 
 cumstances, the purchasers of these lots and 
 lands, who are parties to this bill, are willing 
 to surrender their titles, on having the pur- 
 chase money repaid to them ; provided the 
 Court will undertake to sell the fee-simple 
 of the property, and, from the fund thence 
 arising, to repay the purchase money with 
 the cost of the proceedings, and from the 
 residue, create a fund from the interest or 
 dividends, on which a present suii])ort may 
 be provided for the support and maintenance 
 of Paul Bofil and family. The Bofils and the 
 purchasers of the property who hold a life 
 estate, concur, and the guardian ad litem of 
 the infant parties deem it advisable and 
 greatly to the interest and comfort of the 
 family, that the prayer of the bill should be 
 granted. 
 
 The cause was heard at June Term, 1S50. 
 The presiding Chancellor ordered it to be re- 
 ferred to the Commissioner to report upon 
 the facts, and the Conmiissioner at the same 
 Term submitted his report, in Avliich 'he 
 states the prices at which the different lots 
 and tracts of land were sold, and their esti- 
 mated present value, which he arrives at by 
 the examination of testimony. From this 
 report it appears that the present estimated 
 \alue of the f(^e in the lots and tracts very 
 far exceeds the prices for which the estate 
 of Bofil in the same has heretofore been 
 sold either by the sheriff or himself. It thus 
 appears, that by the sale of only a portion 
 of the estate in fee, a fund could be raised 
 by which the prices paid by the purchasers, 
 (which they are now willing to take without 
 interest,) could be refunded to them, leaving 
 a balance that might be invested for the 
 benefit of Bofil and his family, yield them a 
 permanent and comfortable support, and at 
 the same time be preserved, to be bereafter- 
 wards disposed of according to the directions 
 of the will of Nicholas Herbemont. 
 
 Under these circumstances, the Circuit
 
 BOFIL V. FISHER 
 
 Court docrood a salt' *iii foe of certain lots 
 and jiortious of the said real estate desiKuat- 
 ed in the decree, ainunj,' to raise the sum of 
 ten thousand dollars, or thereahouts, to he 
 invested for the i>uri>oses and in the manner 
 prescribed in the circuit decree, the partic- 
 ulars of which are not necessary to the full 
 iniderstandiiij; and decision of this appeal. 
 
 From this decree an appejil has heen tak- 
 en on the part of Mary J. Bolil. one of the 
 defendants, and an infant child of Paul Bolil. 
 who moves to reverse the decree, on the 
 ground "that this Court has not jurisdiction 
 or autliority to order the sale of her contin- 
 >,'ent interest in the estate devised to her hy 
 her grand-father, nor of the interest of such 
 other children as Paul BoHl may hereafter 
 have, and who may be living at his death; 
 nor of the interest of the contingent remain- 
 der-men in France, who are not parties; and 
 that the purchaser can actpiire no valid title 
 in fee to the premises which may he sold un- 
 der such circumstances." 
 
 The appeal brings up a great and important 
 (luestion. which was much di.scus.sed, but 
 which was left undecided, in the case of Van 
 rxnv V. Parr, (2 Rich. Eq. 321.) It is a mat- 
 ter of great surprise, that a (piestion like this, 
 constantly arising or likely to arise out of the 
 daily transactions in the Court of Etpiity, 
 should have been so long deferred. 
 
 If. under the circumstances of this case, an 
 • •rder for sale in Chancery should be insnffi- 
 cient to conf(.r a valid title ui)on the pur- 
 chaser, I apprehend the title to an inconceiv- 
 able amount of property in South Carolina 
 would be put in peril. And were there 
 stronger reasons than do actually exist, to 
 doubt the authority of this jurisdicti(.n in'the 
 particular m«'ntioned. the Court would hesi- 
 tate long before it would announce a judg- 
 ment which would shake, perhaps, one-fourth 
 of the titles in the State. 
 
 The dlfliculty, if any exi.sts, does not lie in 
 the tirst branch of the appeal, which relates 
 to the right of the Court to sell the contin- 
 gent interest of Mary J. lioHl, who is an In- 
 fant child of Paul Bofil. and a party defend- 
 ant, by guardian ad litem, to the bill. The 
 light of the Court to sell either the vested 
 
 *6 
 or contin*gent estates of infanls, who can 
 be and are properly mad(> partit-s before it, 
 cannot at this day be qnestioned. Put the 
 question is. whether the Court has the pow- 
 er, by its decrees, to alienate the contingent 
 titles of unborn remaiiider-nien. who. from 
 the nature of things, cannot be made par- 
 lies, or be represented in tlu' procetMlings be- 
 fore the Court; or to alienate the coiitument 
 titles of persons, who, though in es.se, are 
 resident in other States, or in foreign lands, 
 whose residences and even whose names are 
 unknown. 
 
 To say that the Court could not under cir- 
 cumstances like these convey away the fee, 
 
 I would be to as.sert a doctrine that would ren- 
 der conditional lindtations and contingent re- 
 mainders an intolerable evil to a growing 
 and prosperous connuunity. Thus to shackle 
 estates without the power of relief, unless 
 every i>er.son having a <-ontingent and po.><sibie 
 interest could be brought before the Court, 
 as a party comiilainant or defendant, accord- 
 ing to the usual forms and ordinary practice 
 of the Court, would be to .-sacrifice the rights 
 and interests of the present generation to 
 tho.se of posterity, and of citizens to aliens. 
 If the whole ijroperty of the country were 
 thus situated, it is obvious that all iiiiprove- 
 ment and advance would be completely check- 
 ed. And this check upon progress and im- 
 provement would be in direct proportion to 
 the extent to which this .state of things exists. 
 The case before the Court is an apt illus- 
 tration. Here are valuable unimproved lots, 
 in a thriving and prosperous town, which the 
 lil'e-tenant cannot with a due regard to his in- 
 terest improve, and the remainder-men can- 
 not, because their rights are contingent and 
 may never vest. Here also is a suffering 
 family, who may obtain relief by the action 
 of the Court. And they are the first objects 
 of the testator's bounty. Is there no power 
 in the State, by which the titles of e.states 
 may be unfettered from the contingent claims 
 of unborn remainder-men. and their rights 
 not extinguished, but transferred from the 
 property it.self to a fund arising from the 
 sale of the projterty? I think there should 
 be; I think there is. 
 The rules of practice in this Court as to 
 ♦7 
 parties are rules *adopted for convenience, 
 and are oftentimes matters of discretion. If 
 all persons interested, who can be made par- 
 ties, are brought before the Court, it is sufh- 
 cient. The Court will go on and try the 
 cause, though it should appear that persons 
 having more remote interests are not repre- 
 sented. 
 
 lUit will the decrtv of the Court conclude 
 the rights of parties who are not before it? 
 In some cases it will. In cases like the pres- 
 ent it will. The Court hy its decree acts on 
 the property and disposes of that; while the 
 fund arising from the sale is to be managed 
 under the direction of the Court, in its admin- 
 istrative department. The rights of all the 
 parties in interest will be transferred from 
 the property to the fund, and will be protect- 
 ed i)y the Court, so far as that is practicable. 
 Nevertheless, if by maladministration, the 
 faithlessness of the oflicers of the Court, or by 
 any of the untoward accidents of life, the 
 fund should be lost, the original rights of 
 the parties to the proi)erty are not thereby 
 revived, but they are concluded. The com- 
 pensation to them is their interest in the 
 fund arising from the .sale, which the Court 
 always means to preserve, and to administer 
 according to the scheme of settlement. 
 
 It is uecessary to the best interests of so-
 
 ^1 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 ciety, as I have before intimated, tliat tliere 
 should be a power lodged in some judicial 
 tribunal, authorized, in certain exigencies, to 
 unfetter the titles of estates ; otherwise they 
 might be shackled to an inconvenient extent. 
 In England, the tenant for life, by suffering 
 fine and recovery, in which he alone is a par- 
 ty, may cut off all contingent limitations and 
 remainders. In that country, Courts of 
 Equity are in the habit, under certain exigen- 
 cies, of doing the same thing in respect to the 
 title, but with a more just regard to the 
 rights of the remainder-men; for when that 
 Court, by a sale, divests the title of the con- 
 tingent remainder-men in the property, it 
 preserves for them the fund. 
 
 Upon the principle that in an estate tail 
 the tenant for life is the representative of 
 all those who are to succeed him in the en- 
 joyment of the estate, (who take through him 
 derivatively, and by inheritance,) it is held 
 
 *8 
 sufficient in England, in all ques*tlons affect- 
 ing the title to the estate, to make the ten- 
 ant for life a party, when no other person 
 in esse is to be found having an interest. In 
 Giftard v. Hort, (1 Sch. & Lef. 408,) Lord 
 Redesdale says: "Courts of Equity have de- 
 termined, on grounds of high expediency, that 
 it is sufficient to bring before the Court the 
 fii-st tenant in tail in being, and if there be 
 no tenant in tail in being, the first person 
 entitled to the inheritance, and if no such 
 person, then the tenant for life." He fur- 
 ther says: "it has been repeatedly determin- 
 ed, that if there be tenant for life, remainder 
 to his first son in tail, remainder over, and 
 he is brought before the Court before he has 
 issue, the contingent remainder-men are bar- 
 red. This is now considered the settled rule 
 of Courts of Equity, and of necessity ; and 
 the danger of holding otherwise in the pres- 
 ent case, would induce me to hesitate very 
 much, even if I thought that there was less 
 authority on the subject." 
 
 In the case now before the Court, there ai'e 
 no persons having any vested interest or title 
 in the property, except the purchasers of 
 Paul Bofil's life estate ; and they, with Bofil, 
 and every other person in esse who has a pos- 
 sible future interest in the estate, except 
 the relations in France, (whose names and 
 very existence are unknown,) are made par- 
 ties to these proceedings in proper form. 
 This is deemed by the Court entirely suffi- 
 cient to authorize it to act, and make the 
 titles of the purchasers valid under the sale 
 that has been ordered. 
 
 The other ground of appeal is, "because the 
 order did not embrace all the lands devised 
 to Paul Bofil by fhe testator, Nicholas Herbe- 
 mont." The order for the sale was a matter 
 4 
 
 of discretion for the Court. The object of the 
 Chancellor was to raise a fund, the interest 
 or income of which would be sufficient to 
 yield a present and comfortable support to 
 Paul Bofil and his family. And as the lots, 
 omitted in the order of sale, are at present 
 not valuable, and the difference in the price 
 given for the life estate and the fee simple 
 value not very great, and as the said lots 
 may be much appreciated in value by the 
 time the estate of the remainder-men falls in, 
 this Court thinks that the discretion of the 
 Chancellor was properly exercised in omit- 
 
 *9 
 ting *said lots in the order for sale. Never- 
 theless, leave is hereby given to the parties 
 to apply, at the foot of this decree, at any 
 time hereafter, for an order for the sale of 
 said omitted lots; it being incumbent upon 
 the parties so applying, to make out a case 
 proper for the interference of the Court. 
 
 The order of sale by the Circuit Court is 
 unconditional. A peremptory sale of the 
 lots and land might be attended with a sacri- 
 fice. They might, under these circumstances, 
 be sold for much less than the estimated 
 value. The whole object of the sale might 
 thus be defeated, and the interests of the 
 remaindermen sacrificed and lost, without 
 any adequate compensation for their rights 
 in the property. It is most expedient, there- 
 fore, that the property should not be offered 
 at a peremptory sale, but that the Commis- 
 sioner should otter each lot and tract of 
 land at the estimated price or value named 
 in his report as the first bid, to be knocked 
 off at that sum if there should be no higher 
 bid. The decree must be modified in con- 
 formity with these views. And it is so or- 
 dered and decreed. 
 
 From the great improvidence of Paul Bofil, 
 it appears to this Court that it would be im- 
 proper to entrust him with the administra- 
 tion and disbursement of the dividends aris- 
 ing from the fund. So nuich of the circuit 
 decree as directs the mode of investment, 
 and that the dividends be paid on the joint 
 application and receipt of Paul Bofil and 
 wife, nuist be rescinded ; and it is so ordered 
 and decreed. It is further ordered that the 
 Commissioner report a scheme for the in- 
 vestment and preservation of the capital 
 fund, and for the prudent disbursement of 
 the annual income arising therefrom. 
 
 It is further ordered and decreed that the 
 appeal be dismissed, and that the circuit de- 
 cree, with the modifications above declared, 
 be affirmed. 
 
 JOHNSTON, DUNKIN, and WARDLAW, 
 
 CC, concurred. 
 Decree modified.
 
 MOORE V. M( WILLIAMS 
 
 *12 
 
 3 Rich. Eq. *I0 
 
 ♦THOMAS MOOliK and Wifr and Others v. 
 
 ALKX. McWILLIAMS and Otlnrs. 
 
 (Cdlutnbiii. Nov. au 1 Dec. IVrni, 1850.) 
 
 [iri7/.^ (©=.11(5, 71'_'. Slif).! 
 
 I iidtT tlic Stat. L'r> (ieo. 2, of fcirt-e in tlii.s 
 IStntf, all devises and btM|uests to an atte.stinj; 
 witness. <ir to tlie wife of an attf.stin^ witness, 
 to a will. dispnsinL' of real and i>ersonal prop- 
 erty, arc null and void; the witness is conipc- 
 teut ; the other parts if the will stand Rood; 
 the property endiraced in the void devises is dis- 
 tributable as intestate jtroperty; and the wit- 
 ness, if he be an heir, is entitled to his dis- 
 tributive share of the same. 
 
 |Hd. Note.— Cited in Noble v. Burnett. 10 
 Rich. GliO. 
 
 For other cases, see Wills. Cent. Dig. §§ 2S7, 
 lG!i;]. I'llKS; Dec. Dis- <S=11«. 712, Stio.] 
 
 liefore I)arj;aii, Cb., at Laurens, June, 
 184U. 
 
 From the lircuit decree in this case, some 
 of the parties ai>i)enled, and now moved this 
 Court that the decree be reversed. 
 
 Sullivan, for the motion. 
 Irby, contra. 
 
 DARGAN. Ch.. delivered the opinion of the 
 Court. 
 
 This is a bill for the partition of a cer- 
 tain portion of the real estate (if Samuel 
 McWillianis, among the devisees named in 
 his will. The will disposes of both real and 
 personal property, but n») question arises in 
 this case as to the personalty. 
 
 The testator i;ave to his son, Alex. McWil- 
 lianis, all his real estate lyinj; west of Cane 
 Creek, to have and to hold forever. He 
 then declares as follows: "all the rest of my 
 estate, both real and personal, of what na- 
 ture and quality soever it may be, not herein 
 before particularly disposed of, I desire may 
 be s(jld and eciually divided amonj; my sev- 
 eral children," \:c. It was for the partition 
 of the lands embraced under the last ([uoted 
 clause, that this bill was tiled. 
 
 The principal (piestion in the case relates 
 to the validity of the will. Ry some of the 
 parties it is contended that the will is void 
 for the want of the lesjal attestation, and 
 that the lands described in the bill are to be 
 distributed as intistate property. The fact* 
 as to the attestation are these. There were 
 four subscribing witnesses to the will, name- 
 ly, .Joseph r.all, William McCJowen, Mary 
 AlcWilliams and Pleasant Newby. The first 
 *11 
 
 *i.s the only witness whose competency is 
 not contested. I'leasant Newby atlixed his 
 signature to the will, as a subscribing wit- 
 ness, at the distance of two miles from the 
 presence of the testator. His signature is 
 of course a nullity. Mary McWillianis is 
 the daughter of the testator, and one of the 
 devisees and legatees under the will, and 
 William Mc(Jowen is the husband of one of 
 
 the testator's «»ther daughters, who is also 
 one of the devisees and legatees. If Mary 
 McWilliams and AVilliani McCJowen are not 
 incompetent witnesses, the will is valid, and 
 a partition of the land must be ordered under 
 the provisions of the will. The presiding 
 Chancellor de<ided that the devises and leg- 
 acies to Mary McWilliams. and the wife of 
 William Mc(;o\van. were void under the Stat- 
 ute of the 25 (ieo. 2. ch. 0; that they were 
 thus rendered competent as subscribing wit- 
 nes.ses. (having no interest under the will,) 
 and that, therefore, the will was valid. He 
 ordered a partition of the lands embraced in 
 the general devise of the will, among all the 
 testator's children, except Mary McWilliams 
 and Mrs. McGowen. whom he excluded. And 
 this is an appeal from that decree, on the 
 ground "that the supposed will of Sanmel 
 McWilliams is void for want of execution, 
 according to the provisions of the statute in 
 such case made and provided." 
 
 The Statute 25 (Jeo. 2. ch. (!, has been at 
 various times acknowledged to be of force iu 
 South Carolina by Legislative enactments, 
 and in judicial oiiinions and proceedings. 
 For the history, time and maimer of these leg- 
 islative and judicial recognitions, see Taylor 
 V. Taylor, (1 Rich. 5.'{l.l in which the statute 
 of Geo. was authoritatively re<-ognized. See 
 also Workman v. Dominick, (3 Strob. 589.) 
 
 The first enacting clause in the Stat. 25 
 Geo. 2, is as follows: "that if any person shall 
 attest the execution of any will or ctnlicil 
 which shall be made after the twenty-fourth 
 day of June, in the year of our Ix)rd one 
 thousand seven hundred and fifty-two, to 
 whom any beneficial devise, legacy, estate, 
 interest, gift or appointment, of or affecting 
 any real or personal estate, other than and 
 except charges on lands, tenements and 
 
 *12 
 hereditaments, *for payment of any debt or 
 debts, shall be thereby given or made, such 
 devise, legacy, estate, interest, gift, or ap- 
 pointment .shall, so far only as concerns such 
 person attesting the execution of such will 
 or codicil, or any person claiming under him, 
 be utterly null and void; and such person 
 shall be admitted as a witness to the execu- 
 tion of such will or codicil, within the intent 
 of said Act. (2it Charles the second.) notwith- 
 standing su<h devise, legacy, estate, interest, 
 gift or appointment mentioned in such will 
 or codicil," (2 Stat. 580.) 
 
 I'nder the provisions of this Act. there can 
 be no doubt as to the validity of Samuel Mc- 
 William's will. The devises and legacies to 
 Mary M<-Williams and Mrs. McCiowen are 
 void. They are expunged and stricken out 
 of the will. The case is to be considered as 
 if they never had been inserted. The objec- 
 tion as to their incompetency from interest, 
 is thus entirely removed, and there is no 
 other objection against them as subscribing 
 witnesses. All the other jiarts of the will 
 
 ^z^FoT other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 *12 
 
 3 EICHARDSOXS EQUITY REPORTS 
 
 stand. That alone is void wliicli attempts to 
 give a benefit to a subscribing witness. 
 
 There is a point involved in the case, 
 which has been overlooked in the discussion 
 both in this Court and in the Circuit Court. 
 The decree of the Circuit Court gives the 
 property embraced in the void devises, to be 
 divided among those of the testator's chil- 
 dren whose devises were not void. This is 
 erroneous. The lands embraced in the void 
 devises are intestate property, and must be 
 divided as such. In regard to this, all the 
 children are equally entitled, as well those 
 Avhose devises were void, as those whose de- 
 Tises are valid. And the circuit decree must 
 l)e modified accordingly. 
 
 It is ordered and decreed that the lands 
 ■embraced in the void devises to Mary McWil- 
 liams and Mrs. McGowen, be divided among 
 all the children of Samuel McWilliams, as 
 in cases of intestacy. In all other respects 
 the circuit decree is affirmed, and the appeal 
 dismissed. 
 
 JOHNSTON and DUNKIN, CC, concurred. 
 Decree modified. 
 
 3 Rich. Eq. *I3 
 *Ex parte.— THE COMMISSIONER IN EQUI- 
 TY FOR LANCASTER DISTRICT, lu the 
 Matter of DR. G. L. MASSEY, Deceased, 
 Former Guardian of Jane E., Mary R., Sarah 
 A., and Wm. H. Massey. 
 (Columbia. Nov. and Dec. Term, 1S50.) 
 
 lExecutors and Administrators <S=:3495 ; Guard- 
 ian and Ward <g=^151.] 
 Where an administrator, having the fund 
 ■of an infant in his hands, is appointed his 
 guardian, he has the ridit, as administrator, to 
 •charge two and a half per cent, commissions 
 for transferring the fund to himself as guardian, 
 and, as guardian, the riuht to charge two and a 
 half per cent, for receiving it. 
 
 [Ed. Note. — Cited in Floyd v. Priester, 8 Rich. 
 Eq. 252; Griffin v. Bouham. 9 Rich. Eq. S3. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 2()S9 ; Dec. Dig. <g=:349o ; 
 Guardian and Ward, Cent. Dig. S 499 ; Dec. 
 Dig. <S=:^151.] 
 
 Before Dargan, Ch., at Lancaster, June, 
 1850. 
 
 This case came before the Court on the 
 report of James H. Witherspoon, Commis- 
 sioner, as follows : 
 
 "Dr. G. L. Massey, late of the district, de- 
 ceased, was the administrator de bonis non 
 of William Massey, the father of the said 
 wards, and afterwards was appointed by 
 this honorable Court the guardian of their 
 persons and estates. Dr. Massey has de- 
 parted this life, and the guardianship of 
 Jane E. & Mary R. has been committed by 
 this Court to Thos. K. Cureton, Esq., and 
 the guardianship of Sarah A. & Wm. H. 
 Massey, to Wm. J. Cureton, Esq. The only 
 question made in the settlement between the 
 administrator of the deceased guardian, and 
 
 the present guardians, is, what commissions 
 the deceased guardian should be allowed; 
 whether he should receive full commissions 
 as administrator, and also full commissions 
 as guardian. The Commissioner not find- 
 ing any adjudicated case on the question, and 
 understanding that conflicting opinions are 
 given as to the same, respectfully submits 
 the question, and asks the direction and 
 instruction of this honorable Court." 
 
 Dargan, Ch. In this case, I am of the 
 opinion that the late G. L. Massey was en- 
 titled, as administrator de bonis non, for 
 paying to himself, as guardian, the money 
 of his wards, to charge two aud a half per 
 cent, on the amount thereof. Aud, as guard- 
 ian, he was entitled to two and a half per 
 cent, on the same sum for receiving It as 
 
 *14 
 guardian. He is entitled to no *commissions 
 at all for paying it out as guardian, for he 
 has not lived to pay it out in that character; 
 his legal representative pays it to the suc- 
 cessor in the guardianship, as a common 
 debt, for which he is not entitled to commis- 
 sions. 
 
 It is so ordered and decreed. 
 
 The guardian of Jane E. and Mary R. Mas- 
 sey appealed, on the ground that the admin- 
 istrator and guardian, bein^ the same per- 
 son, was not entitled to receive two sets of 
 commissious, one as administrator for pay- 
 ing to himself as guardian, and one as 
 guardian for receiving from himself as ad- 
 ministrator. 
 
 J. Williams, for appellant. 
 
 DARGAN, Ch., delivered the opinion of 
 the Court. 
 
 This Court is of the opinion that the cir- 
 cuit decree is correct. The Act of 1789, (5 
 Stat. 112.) which, in this particular, is a re- 
 enactment of the same provision of the Act 
 of 1745, (a) gives to an executor or adminis- 
 trator two and a half per cent, on all sums 
 which he "shall pay away in credits, debts, 
 legacies, or otherwise," during the course 
 of his management or administration. This 
 is intended as a compensation for his care, 
 labor and hazard, in the performance of his 
 duties in his otfice or trust, as executor or 
 administrator. When the same person is 
 appointed guardian of the legatee, or dis- 
 tributee, (as the case may be,) the fund of 
 his ward is transferred, by operation of law, 
 from him, in his character as executor or 
 
 (a) The 11th secticm of the Act of 1745, is 
 not either in Grimke or in the Statutes at 
 Large, and it is not correct, as is said in both 
 those compilations, that it is re-enacted by the 
 Act of 1789, (vide 3 Stat. 668 ; P. L. 202 ; 5 
 Stat. 112.) The Act of 1745 gives commissions 
 to "every guardian or trustee," as well as to 
 executors aud administrators ; the Act of 1789 
 is coutined to executors aud administrators ; see 
 1 Brev. Dig. 392: Muckenfuss v. Heath. (1 
 Hill. Eq. 183.) R. 
 
 € 
 
 <S==>For other cases see same topic and KEY-NUMBER iu all Key-Numbered Digests and Indexes
 
 BRIGOS V. IIOLCOMBE 
 
 m 
 
 administrator, to him, in liis lunv cliaracter 
 as Riiardiaii. He is lu'iufforward liable in 
 the character of pnardian, and is released 
 from his llahility as exec ntor or adminis- 
 trator, and his sureties, which he has yiven 
 in the latter character, are discharged. The 
 pa.vment to the guardian is a payment to 
 the ward : and it is a iiayinir to the legatee, 
 or distributee, of whom he has iiecome the 
 
 *15 
 ^Miardian, when it is *i)iud by operation of 
 law, as well as when it is i)y actual payment. 
 The ca.se is different where a new guardiau 
 is appointed and receives from his predeces- 
 sor the wards' funds. There the money is 
 transferred from one to another in the same 
 ottice, and the law allows but one commis- 
 sion. 
 
 When one who was an executor or admin- 
 istrator becomes the f-'uardian, he assumes 
 an entirely new trust or ottice. with new and 
 different duties and responsiliilities, which 
 office may continue with all its burthens and 
 liabilities for a long period of time. 
 
 For the performance of this trust, the law 
 also allows two and a half per cent, for 
 receiving and paying out. If another person 
 had become the guardian, the right of the 
 guardian to charge two and a half per cent, 
 for receiving the fund, and of the executor 
 to charge that conuuission for paying that 
 fund to the guardian, would have been un- 
 disputed. Here there is but one person, 
 but two distinct offices, or trusts, and the law 
 allows the same compensation in both. The 
 principle is the same where one person per- 
 forms both trusts. The appeal is dismissed 
 and the decree affirmed. 
 
 i'een referred to the Conniiissioner. who re- 
 ported a balance due by him. in 1844. charg- 
 ed him with simple interest only, and allow- 
 ed him ten per cent, on the interest as com- 
 missions. The complainant excepted to the 
 allowance of ten per cent, on the interest. 
 His IL.nor overruled the exception, and the 
 comi»Iainant appealed, 
 
 Townes. for the appellant. 
 I'erry, contra. 
 
 JOHNSTON and WAIiDI.AW, CC, con- 
 curred. 
 
 Appeal dismissed. 
 
 3 Rich. Eq. 15 
 
 H. C. BRIGGS v. A. W. HOLCOMBE, 
 
 Adm'r, et al. 
 
 (Columbia. Nov. and Dec. Tcrui, 1S50.) 
 
 [Kxccuti/rs and Adtninistrators <©=>4fKJ 1 
 
 All administrator is ontitl.-d to ton per cent 
 comiinssions on interest, only where the interest 
 IS made by lettnii,' out money and receiving it 
 m aiinnally. by which it is made an accumulat- 
 i s; tund. or whore he sufT.Ts it to accumulate in 
 like manner ni his own liands : wiiore he re- 
 tains th(. money hims..if. and is changed only 
 \Mth simple interest, he is entitled onlv to the 
 usual (•(.mmissions of two iind a half per cent 
 tor reeeivini;. and two and a half per cent for 
 pa.vinj,' It away, or. in other words, to live per 
 cent, un the uiterest. 
 IKd. Note.— Cited in Bobo v. I'oole. 12 Rich 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. 8 l'll:i; Dec. Dig. <g=»4llU.] 
 ♦16 
 ♦Before Johnston, Ch., at Tickens, June, 
 
 J oOU. 
 
 The accounts of the administrator had 
 
 JOHNSTON, Ch., delivered the opinion of 
 the Court. 
 
 The decree appealed from, was made by 
 myself on a report by the Comnnssioner up- 
 on the accounts of an administrator, and ex- 
 ceptions thereto. liy the report, the adminis- 
 trator was chargeil with the funds in his 
 hands, allowing proper credits, and calculat- 
 ing simple interest in the ordinary mode, 
 without annual rests. 
 
 The decree allowed the administrator ten 
 per cent, commissions on the interest part of 
 the account, and the appeal alleges that this 
 allowance was erroneous. 
 
 The statute upon the subject is that of 
 1789, (P. L. 405 ; 5 Stat. 112.1 the 2!)th sec- 
 tion of which is as follows: "every executor 
 or administrator .shall, for his"' "trouble 
 and attendance in the execution of" his "du- 
 ties, take," "or ret<iin in his" "hands, a sum 
 not exceeding the sum of .50 shillings for 
 every 100 pounds which he" "shall receive, 
 and the sum of 50 shillings for every 100 
 IKiunds which he" "shall pay away, in cred- 
 its, debts, legacies, or otherwise, during the 
 course of" "administration; and so, in prcn 
 portion, for any" "sums less than 100 pounds, 
 Provided, that no executor or adnunistrator 
 shall, for his" "trouble in letting out any 
 monies upon interest, and again receiving 
 the same, be entitled to take or retain any 
 sum exceeding '20 shillings, for every 10 
 pounds, for all sums arising by monies let 
 out to interest : and in like proportion for a 
 larger or lesser sum." 
 *17 
 *In Taveau v. Ball, (1 McC. E.]. 4(\2,) it 
 was held that an executor was entitled to 
 two and a half per cent, for receiving mon- 
 ey ; ten per cent, upon the interest made by 
 him on it ; and two and a half on the capital 
 and interest finally paid over by him to the 
 party entitled. 
 
 In Wright V. Wright. (2 McC. Ecj. 10(!.) it 
 was held that the executor is entitled to ten 
 per cent., on interest, oidy when the interest 
 is made by letting out money, and receiving 
 it in annually, by which it is made an ac- 
 cumulating fund, or when the executor suf- 
 fers it to accumulate in like manner in his 
 own hands. This decision must be taken as 
 a moditication of the judgment in Taveau y 
 Ball. 
 
 In Massey v. .Massey, (2 Hill Eq. 495,) 
 where the claim was for two and a half per 
 
 €=;,For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 *17 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 cent, in addition to ten per cent, for interest 
 made, the claim was overruled, which was 
 .sufficient for that case; but the Chancellor 
 proceeded to give his interpretation of the 
 statute, which was, that two and a half per 
 cent, was allowed for letting out to inter- 
 est, and two and a half for taking in again, 
 until the commissions amounted to ten per 
 cent, on the interest made, at which, as a 
 maximum, the commissions on interest must 
 stop. 
 
 It is sufficient for this case, however, that 
 by the decision in Wright v. Wright, limit- 
 ing the previous case of Taveau v. Ball, ten 
 per cent, cannot be allowed on the interest ; 
 inasmuch as it was not made an annually ac- 
 cumulating fund ; and that the administra- 
 tor IS only entitled to two and a half per 
 cent, for receiving, and two and a half per 
 cent, for paying it away, (in other words to 
 five per cent, on the interest.) 
 
 It is ordered, that the decree and the re- 
 port be reformed accordingly. 
 
 DUNKIN and DARGAN, CC, concurred. 
 Decree reformed. 
 
 3 Rich. Eq. *I8 
 
 'SAMUEL DONNELLY, Guardian, and 
 JAMES B. aud JULIET E. EWART, Wards, 
 v. DAVID EWAKT, Former Guardian. 
 
 (Columbia. Nov. and Dec. Term, 1S50.) 
 
 [Equity <g==>271.] 
 
 Leave given to complainants, after final de- 
 cree piouoimced, to amend a purely clerical er- 
 ror in their bill. 
 
 [Ed. Note.— Cited in Verdier v. Verdier, 12 
 Rich. Eq. 142. 
 
 For other cases, see Equity, Cent. Dig. § 560; 
 Dec. Dig. <®=>271.] 
 
 Before Dargan, Ch., at Chambers, May, 
 1850. 
 
 Complainants moved the following order, 
 to wit: "that the complainants have leave to 
 amend, nunc pro tunc, the bill in the case 
 stated, by alleging that David Ewart gave 
 bonds to the Conmiissioner of this Court ; 
 one bond in the sum of twenty-four thousand 
 dollars, conditioned for the faithful discharge 
 of his duty, as guardian of James B. Ewart, 
 dated the tenth day of September, eighteen 
 hundred and thirry-six, with John McMillan 
 as surety to said bond ; also one other bond 
 in the like sum of twenty-fcmr thimsand dol- 
 lars, conditioned for the faithful discharge 
 of his duty as guardian of Juliet E. Ewart, 
 dated the same day and year last aforesaid, 
 with the said John McMillan as surety 
 thereto." 
 
 In support of the motion, it appeared that 
 the bill was tiled in January; 1846 ; that it 
 recited the bonds given by David Ewart, as 
 guardian, stating the penalty of each to be 
 in the sum of twenty thousand dollars ; that 
 in June, 1847, a final decree was pronounced 
 
 in favor of complainants against David 
 Ewart, for near six thtmsand dollars; and 
 that the amount of the penalty of each bond 
 was, in fact, twenty-four thousand dollars. 
 The error, it was alleged, arose from the cir- 
 cumstance, that a memorandum of the bonds, 
 placed in the hands of the Solicitor who 
 drew the bill, was not verj^ legible. 
 
 His Honor, the Chancellor, refused the 
 motion; aud the complainants appealed. 
 
 W. F. DeSaussure, for appellant. 
 Gregg, contra. 
 
 DUNKIN, Ch.. delivered the opinion of the 
 Court. 
 
 *19 
 
 *It is not doubted that Courts of Law, as 
 well as of Equity, have authority to correct 
 their own records. 
 
 The expediency of exercising the power 
 must necessarily depend upon circumstances. 
 In Wallis v. Thomas, (7 Yes. 292,) although 
 the decree had been passed and entered, the 
 Court entertained an application to rectify a 
 clerical error which had crept into the de- 
 cree: and in several other cases the Court 
 has extended the indulgence of rectifying de- 
 crees in which there have been clerical mis- 
 takes, to decrees which have been actually en- 
 rolled. (Coop. Rep. 134.) And in Spearing v. 
 Lynn, (2 Yern. .376.) leave was given to amend 
 the title of an order which appears to liave 
 been enrolled, although the effect of the al- 
 teration was to charge a surety who had 
 been sued at law under the order, and relying 
 upon the mistake in title of the order, had 
 pleaded that there was no such order. See 
 Danl. Prac. 1233. 
 
 The error now sought to be amended was 
 not only purely clerical, but it was entirely 
 unimportant. The pi'oceeding was by the 
 wards, against their former guardian, for 
 an account. For the purposes of the case, 
 the amount of the bond was not only imma- 
 terial, but it was equally immaterial whether 
 he had given any bond at all. His undertak- 
 ing the office and the receipt of their funds 
 were sufficient to charge him. The recoveiy 
 might have been for five times the amount of 
 his guardianship bond. Why it should have 
 been deemed necessary to recite the fact 
 of giving the bond, is not very clearly per- 
 ceived. The surety was no party to the pro- 
 ceeding. Still the recital was not irregular, 
 and the complainants only seek to rectify the 
 clerical error, so that the recital may be in 
 conformity with the fact. The records of the 
 registry afford the means of shewing the 
 error and of correcting it. 
 
 The recovery against the defendant Ewart, 
 who alone is entitled to be heard in the case, 
 is less than one-fourth of either of his bonds. 
 
 We are of opinion that the order submitted 
 *20 
 by the complain*ants' solicitor should have 
 
 8 
 
 ^s»For other cases see same topic and KEY-NUMBEii in all Key-Numbered Digests and Indexes
 
 MIKI'IIV V. CALDWKLL 
 
 *22 
 
 tn'en yrnnted, ami it is now so ordered and 
 decreed. 
 
 JOHNSTON, C, concurred. 
 Motion granted. 
 
 3 Rich. Eq. 20 
 
 NANCY MlRl'IIY. by H.r Next Friend, v. 
 DAVIS CALDWELL, au.1 Otlieis. 
 
 (Cdlumbia. Nov. and Dec. Term, ISnO.) 
 
 [Iluxhuiid and M'tfc <©=>n0.1 
 
 A i)arol i;ift of a slave to a tnisttp, to the 
 sei)arate use uf a manii'il uoiiiaii. lichl valid, 
 as aj;aiiist a crt'ditor (if tiif liiishaiid. aUliiiu;;li 
 the slavo went into the possession of the wife, 
 the luisliand liaviuj; the cnstody as property held 
 by tlie trustee for his wife. 
 
 [Kd. Note. — For other cases, see Husband and 
 Wife. Cent. Dijr. § 410; Dec. Di;;. <©=3ll(i.] 
 
 Before .Tt>linstoii, Cli.. nt Newberry, July, 
 1850. 
 
 'lui.s cas^e will be sufHciently understood 
 from the decree of liis Honor, the presiding 
 Chancellor, which is as follows: 
 
 Johnston. Ch. The hill was tiled by Nancy 
 Murpliy. the wife of Tarlton Murphy, by her 
 next friend, against Davis Caldwell. Simeon 
 Fair. Robert MooVnian. and the said Tarlton 
 Murphy. 
 
 In 18.%, Davis Caldwell obtained judirment 
 in the common pleas for a large sum of mon- 
 ey, and lodged his execution against Tarlton 
 Murphy. 
 
 In 1S4L;. he made an assignment of all his 
 effects, including this judgment, to Simeon 
 Fair, in trust for his creditors ; and the 
 effects assigned liave turned out to be in- 
 sufHcient for the payment of his debts. Mr. 
 or Mrs. Murphy liad possession of two fam- 
 ilies of slaves, one called the Sims negroes, 
 and the other the Buzzard negroes. And, in 
 1843, a question was raiseil, whether these 
 slaves were not liable to be taken for saths- 
 faction of said execution. By direction of a 
 committee of the creditors, the (iiiestion was 
 suhuntted to (Jen. Caldwell, then practicing 
 
 *21 
 *law, and his advice was such, that the com- 
 nnttee instructed the assignee not to have the 
 negroes levied on, and he forebore to do so. 
 Davis Caldwell was not .satisfied; and in 
 1849, he <»btained from the assignee pernns- 
 sion to have the negroes levied on, at his 
 own expense ; and he accordingly procured 
 them to l)e levied on by the sherill" of Fair- 
 field district. He (hu's not claim that the 
 Sims negroes are liable to be taken under the 
 execution ; but he insists that tlu' Buzzard 
 negroes are so liable. 
 
 The t-omidainant is the illegimate daughter 
 of Mrs. Buzzard. About ISJS. Mr. Murphy 
 became insolvent. In LVtO. :SIrs, Buzzard 
 died, and her property was sold. The negro 
 wonuui Susan, from whom the rest of the 
 Buzzard negroes have sprung, was bid off by 
 Tlinmas H. Henderson. 
 
 Tlie next of kin of Mrs. Buzzard consented 
 that tins negro should be .secured to the sepa- 
 rate use of Mrs. Murphy, and Mr. Henderson 
 bid her off for that purpose. He paid nothing 
 for her, and was to hold the title until a 
 trustee should be apindnted. The negro went 
 info possession of .Mrs. Murphy — Mr. Murphy 
 having the custinly of her as property held 
 liy Henderson for his wife. 
 
 In is;{!» an order of tliis Court was i)assed, 
 appointing Koiiert Moorman trustee of Mrs. 
 Murphy, to take charge of all the proi)erty to 
 which she was entitled as her separate es- 
 tate; and re<pnring him to give bond for the 
 faithful performance of the tru.st. He de- 
 clined to give the bond, and said he would not 
 accept the trust on that condition. He did. 
 liowever, receive the property from Hender- 
 son, who turned it over upon his appointment, 
 and acted as the agent of Mrs. Murphy in 
 hiring out some of the negroes, and applying 
 the hire to her use. 
 
 Mr. Fair knew in 1841!, and .some years be- 
 fore that time, that Mrs. ^lurpliy claimed the 
 Buzzard negroes as her separate property. 
 
 I am of opinion, that the Buzzard negroes 
 are the separate property of Mrs. Murphy, 
 and not liable to be seized under execution 
 as the property of Tarlton Murphy. 
 
 It is, therefore, onlered. that the defend- 
 *22 
 ants, Davis Caldwell *and Simeon Fair, do 
 release the .slaves mentioned in the bill from 
 the levy made by the sheriff of Fairfield dis- 
 trict, and cause the siiid slaves to be restored 
 to the possession of the comidainant; and 
 that the said defendants be i)erpetually eu- 
 j(dned from seizing or attempting to seize 
 said slaves luuli'r said execution ; and that 
 a writ of injunction dt> issue so to enjoin and 
 restrain them. 
 
 It is further ordered, that the defendant, 
 Davis Caldwell, pay the costs of this suit. 
 
 The defendant, D. Caldwell, appealed, and 
 moved the Court of Appeals to set aside the 
 decree, on the fcdlowing grounds, viz: 
 
 1. liecause his Honor erred in decreeing 
 that Thomas II. Henderson was the trustee 
 of Mrs. Nancy Murphy, and held the negroes, 
 Susan and children, as such trustee ; where- 
 as, it is subuMtfed that no trust could be 
 created, miless it had been in writing, or 
 clearly proved as to its terms, and recorded, 
 or din>ct notice given to I). Caldwell. 
 
 L'. Because it was a fraud upon D. Caldwell 
 that such secret trust existed, and that the 
 property was i>ermitted to remain in the 
 jiosst'ssion of the husband, as his own prop- 
 erty, without any notice to the creditors. 
 
 ."5. Because, if any trust did exist, it was a 
 secret trust, and could not jjrofect the proper- 
 ty from the debts of the husband, contracted 
 while the property was in his pos.session. 
 
 4. Because a gift by the relations of Mrs. 
 .Murphy to her, even though Thomas H. Hen- 
 derson acted as her trustee, in bidding off 
 
 <S=Fur other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 
 
 9
 
 3 KICHARD.SUX'S EQUITY REPORTS 
 
 the negro, and considered himself as trustee, 
 cannot avail against creditors without notice. 
 5. Because, it is submitted that no gift 
 can be made by parol to a married woman, 
 so as to prevent the marital rights of her 
 husband from attaching, unless the same be 
 in writing, or the terms directly expressed by 
 deed, Avill, or decree of a Court of competent 
 jurisdiction. 
 
 Hammond, Summer, for appellant. 
 Pope, contra. 
 
 *23 
 
 *PER CURIAM. This Court concurs in the 
 decree of the Chancellor; and it is ordered, 
 that the same be affirmed, and the appeal dis- 
 missed. 
 
 JOHNSTON, DUNKIN and DARGAN, CC, 
 concurring. 
 Appeal dismissed. 
 
 3 Rich. Eq. 23 
 HASFORD WALKER and Wife et al. v. 
 DAVID CROSLAND, HOLDEN W. LILES, 
 PHILIP E. CROSLAND et al. 
 (Columbia. Nov. and Dec. Term, 1850.) 
 
 '[Bonds ©=335.] 
 
 The condition of a bond, taken by an Ordi- 
 Dary from an administrator, with the will an- 
 nexed, was in the form prescribed for cases of 
 intestacy, by the 21st section of the Act of 
 1789, except that there was no clause for sur- 
 rendering the administration in case a will 
 should afterwards appear, and be proved by the 
 executor — it contained no reference to the will, 
 and omitted the clause requiring the adminis- 
 trator "to pay and deliver all the legacies" »S:c., 
 as prescribed for cases of administrations, with 
 the will annexed, by the 20tli section of the 
 same Act: held that the bond was not good as 
 a statutory bond, and that it could not be en- 
 forced against the administrator and his sure- 
 ties by a legatee. 
 
 [Ed. Note. — For other cases, see Bonds, Cent. 
 Dig. §§ 40, 40%; Dec. Dig. <©=535.1 
 
 [Bonds <g==>.35; Executors and Administrators 
 <©=:5527.] 
 The validity of such a bond, at the common 
 law, can properly be determined only in a suit 
 in the Court of Law, in the name of the Ordi- 
 nary. 
 
 [Ed. Note. — For other cases, see Bonds, Cent. 
 1 )ig. § 40 ; Dec. Dig. <®==>35 ; Executors and 
 Administrators, Cent. Dig. § 2362 ; Dec. Dig. 
 <S=:3527.] 
 
 Before Dunkin, Ch., at Marlborough, Feb- 
 ruary, 1850. 
 
 The Chancellor. The principal facts of this 
 ease are fully and correctly stated in Allen v. 
 Crosland, (2 Rich. Eq. 68.) This bill seeks 
 to establi.sh and enforce the liability of the 
 defendants, Holden W. Liles and Philip E. 
 Crosland, as sureties on the administration 
 bond of David Crosland. 
 
 The defence rests on two grounds, which 
 will be separately considered. First, the de- 
 fendants insist they are not liable, because 
 the bond is not in the form prescribed by law. 
 
 It appears, among other facts, that Matthew 
 Allen died in Georgetown district in 1834, 
 leaving a widow and one child, (now the 
 complainant, Alary Ann Elizabeth Walker.) 
 Some years afterwards, David Crosland mar- 
 ried the widow, and, in January, 1839, he was 
 appointed, by the Court of Eijuity for George- 
 
 *24 
 town *district, guardian of the child, giving 
 bond with sureties in the penal sum of six- 
 teen thousand dollars. Both he and his sure- 
 ties were residents of Marlborough district. 
 In the latter part of March, 1839, the bond, 
 which is the foundation of these proceedings, 
 was brought or sent up to Marlborough, where 
 all the obligors resided, for the purpose of be- 
 ing executed. The bond bears date 22d March, 
 1839, and is made payable, in the penal 
 sum of six thousand dollars^ to E. Water- 
 man, Ordinary of Georgetown district, and 
 his successors, t&c. The condition is that 
 "David Crosland, administrator of the goods, 
 chattels and credits of ^Matthew Allen, de- 
 ceased," shall make an inventory, &c., and 
 exhibit the same in the Court of Ordinary, 
 "and such goods, chattels and credits shall 
 well and truly administer, according to law," 
 and "make a just and true account of his act- 
 ings and doings therein, when required by the 
 said Court ; and all the rest of the said goods, 
 chattels and credits which shall be found re- 
 maining upon the account of the said admin- 
 istration, the same being ttr.st allowed by the 
 said Court, shall deliver and pay to such per- 
 sons respectively as are entitled to the same 
 by law." At the time when the bond was 
 presented to the defendants for execution, 
 (as was proved by C. W. Dudley, the sub- 
 scribing witness,) the following indorsements 
 appeared upon the bond, viz: "I have under- 
 stood that Mr. Crosland has already given 
 bond to the Commissioner in Equity for all 
 that part of the estate of Matthew Allen 
 which he did not inherit by intermarriage 
 with the widow; and if so, the above bond 
 is one of mere matter of form."— (Signed) 
 "E. Waterman, Ordinary, G. D." "I hold Mr. 
 Crosland"s bond for sixteen thousand dollars, 
 as guardian of Mary Allen." — (Signed) "J. W. 
 Coachman, Commissioner in Equity." After 
 the execution of the bond, the Ordinary of 
 Marlborough district, on 2d April, 1839, gave 
 an otHcial certificate, under his hand and 
 seal, as to the sufficiency of the sureties, and 
 it was thereupon returned to the Ordinary 
 of Georgetown district. 
 
 The Act of 1789 prescribes two forms of 
 bond. The 20th section provides that an ad- 
 ministrator, witli the will annexed, shall enter 
 into bond, with security in a sum equal to the 
 
 *25 
 value of the *estate at least, with condi- 
 tion "that C. D., administrator, with the will 
 annexed," shall make an inventory, &c., &c., 
 "and further do well and truly pay and de- 
 liver all the legacies contained and specified 
 
 10 
 
 ©=3For other cases see same topic ana KEY-NUMBER in aU Key-Numbered Digests and Indexes
 
 WALKKIl V. CROSLAXD 
 
 •27 
 
 ill file said will, as far as tlic siiid ;;(>otls, 
 cliatfi-ls and cnMlits will »'xli'iid, and ilie law 
 re«|uiiv." 
 
 The 21st section prescribes the form <»f 
 the bond to be fiiven by an adndidstrator. 
 It is not necessary to transcribe this form, 
 as it is precisely tliat of the bond execiit»'d 
 by tlie defendants, except that there is no 
 clause for surrendering the administration 
 in case a will should afterwards appear and 
 l)e proved by the executors. The l.jth sec- 
 tion provides that, in the event of the <leath 
 <»f an executor or administrator, intestate, 
 without havinj; fully adnnnistered. admin- 
 istration shall be jrranted of the goods, &c. 
 left UMadministered by the former executor 
 or administrator. 
 
 David Crosland was appointed aibninis- 
 trator, with the will annexed, of Matthew 
 Allen, deceased, so far as his goods and 
 chattels had been left unadministered by 
 Thomas McConnell, deceased, the executor 
 of Matthew Allen, deceased. The alleged 
 default is, in not paying over to the com- 
 plainant the legacies to which she was enti- 
 tled under her father's will. The defend- 
 ants insist that this is a liability not con- 
 templated or provided for in the instrument 
 executed by tliem. 
 
 Without doubt, the leading object of the 
 Legislature, in prescribing a form of bond, 
 is to protect the rights of per.sons interested 
 in the estate. But it is a very important, 
 though perhaps suiiordinate purpose, that 
 parties may distinctly understand the obli- 
 gations into which they enter. Every one is 
 presumed to know the law. and he is bound, 
 at his peril, to inquire into tlie facts to 
 which such law is applicable. The bond to 
 be given by an administrator, with the will 
 annexed, demands that he should pay and 
 deliver over the legacies contained and spec- 
 ified in the will of the testator, so far as his 
 cliattels will extend. To this his sureties 
 are also bound. If they do not inquire into 
 the provisions of the will, or the extent of 
 the testator's estate, they must subnnt to the 
 consequences of their engagement. The re- 
 cital as well as the (-ondition of their bond 
 
 *26 
 luid admonished them ♦that a will existed, 
 and this was the rule <)f conduct for their 
 l»rincipal. 
 
 Where a i)arty dies intestate, the law 
 prescrilu's the form of bond to be given Ity 
 the administrator in such case; and the 
 law also provides the distribution to be 
 made of his estate. The sureties to his bond 
 undertake that their ju-incipal sb.ill adminis- 
 ter the estate, pass his account with the 
 Ordinary, "and the rest of the gcMxls. &c., 
 which shall be found remaining upon the ac- 
 count of said administration, shall deliver 
 and pay to such persons nssjiectively as are 
 entitled to the same by law." This being 
 the form of bond prescribed by the statute 
 to be taken in ca.ses of intestacy, the sure- 
 
 ties have only to inquire to whom the es- 
 tate I'asscs after the delits are paid. Tliey 
 tmdertake tliat tlieir princiiial sliali make- 
 distribution according to the provisions of 
 the Act of 17!U. This they know to be the 
 measure of their responsibility. If tlie wid- 
 ow be the only person entitled, and she be 
 also the administratrix, then it may well be 
 suiip<»sed by the sureties that, the delits be- 
 ing paid, their bond, in the language of the 
 Ordinary of (Jeorgetown, was "a mere mat- 
 ter of f«irm." Kut it is no part of tlie con- 
 dition of their iiond that their principal 
 should pay and deliver the legacies contain- 
 ed in the will of Matthew Allen. That 
 would l)e to vary mati-rially the responsl- 
 idlity they assumed, and would have occa- 
 sioned a very different inquiry before they 
 entered into the obligation. 
 
 The bond to be given by an adnunist rater, 
 with the will annexed, is expressly prescrib- 
 ed by law. It has b»ng since been held tliat 
 a bond, taken differently from that pre- 
 scribed by statute, is void. (1 Sannd. Uep. 
 1(51, note.) The subject was consideretl by 
 tlie Court of Appeals of Virginia, in t'razier 
 V. Krazier, (2 Leigh. 042.1 That was a Itond 
 taken from an administrator, wltli the will 
 annexed, but not in the form prescribed for 
 sudi olticial bond, but nearly in tlie foruB 
 prescribed for an administrator's bond. It 
 was lield that this was not a good .statutory 
 bond, and that no suit, either in law or ii» 
 K<pilty, could be maintained against the 
 surety for the benefit or at the relation of 
 a legatee. Nor does this decision seem at 
 
 *27 
 variance with Peoples ♦v. Peoples, (4 liev. &. 
 Rat. !).) That, too, was a bond taken fromi 
 an administrator, with the will annexed,, 
 and it was held good. But there is no stat- 
 ute of North C'arolimi which prescribes the 
 fttrm of bond to be given by an administra- 
 tor with the will annexed. Besides, us io- 
 tlmated by Judge Ga.ston. there could be no 
 misapprehension as to the purposes of the 
 instrument, for ■"the condition of the Ixind 
 stated, as facts, that the last will and testa- 
 ment of Ilarbert Peoples had btHMi duly prov- 
 ed in the county court of CJullf(U-d; that the 
 executors therein named had refused the 
 office ; and that, upon such refusal, admin- 
 istration with the said will annexed had 
 been ccmimitted to the two first named 
 obligors, Sally Peoples and Beuben Folger." 
 But In the case under consideration tbe 
 bond is in the form prescril)ed for an ad- 
 ministrator of the estate of an intestate, and 
 not in the form prescribed for tlie adminia^- 
 trator of one who had left a will. The par- 
 ties were aided I)y no recital or descrfptiwa 
 in the bond which would awaken a siLspi- 
 clon that Matthew Allen had not tlitnl in- 
 testate. The defendants live a hundred 
 miles olT. But in order to give full inforuia- 
 tion, and at the same time tpilet all appre- 
 hension, the officer to whom the bond was 
 
 U
 
 «-27 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 to be given annexes an official certificate 
 tliat tliis instrument was a mere matter of 
 form, as tlie principal in the bond had in- 
 herited, by marriage, one-third of the es- 
 tate, and was entitled to the other two- 
 thirds, as guardian of the minor; precisely 
 the legal consequences which would have 
 existed had Matthew Allen died intestate. 
 
 Being of opinion that the bond recited in 
 the pleadings was not taken in conformity 
 with the provisions of the statute in such 
 case, and that the defendants are not liable, 
 under their obligation, for the alleged de- 
 fault, the Court deems it unnecessary to 
 discuss the grounds as to misrepresentation 
 and mistake ; both which grounds were very 
 fully argued at the hearing. 
 
 It is ordered and decreed that the bill be 
 dismissed, but without costs. 
 
 From this decree the complainants appeal- 
 ed, and moved to reverse the same, for the 
 causes following, to wit: 
 
 First. Because his Honor, in his said de- 
 *28 
 cree, has adjudged that *the bond made by 
 the defendants, David Crosland, Holden W. 
 Liles and Philip E. Crosland, to secure the 
 due administration by the said David Cros- 
 land of the unadministered estate of Mat- 
 thew Allen, "was not taken in conformity 
 with the provisions of the statute in such 
 case:" Whereas, it is respectfully submitted, 
 the said bond does not materially vary, in 
 its form, from the direction of the Act of 
 Assembly of 1789, and is a good and suffi- 
 cient statutory bond. 
 
 Second. Because his Honor, in his said de- 
 cree, has adjudged that the said bond, "not 
 being taken in conformity with the provi- 
 sions of the statute in such case," is there- 
 fore void, and "the defendants are not lia- 
 ble under their obligation for the default" 
 of the administrator, alleged in the bill : 
 Whereas, it is respectfully submitted, that 
 the said bond, though it be held not to be a 
 good statutory bond, is not therefore void, 
 Init constitutes a valid and legal obligation 
 on the part of the defendants, in their fulfil- 
 ment of which the comi)lainants have such 
 an interest as the Court will protect and 
 enforce. 
 
 luglis, Dargan, for complainants. 
 Dudley & Johnson, Thoruwell, Hanua, for 
 defendants. 
 
 WAPvDLAW, Ch., delivered the opinion of 
 the Court. 
 
 Upon the death of Thomas McConnell, the 
 acting executor of the will of Matthew Al- 
 len, David Crosland, who had married the 
 widow of testator, become administrator, 
 with the will annexed, of the estate of said 
 Allen, unadministered by said McConnell, 
 and entered into a bond to the Ordinary of 
 Oeorgetown district, with Holden W. Liles 
 and Philip E. Crosland as his sureties; and 
 12 
 
 the validity of this bond, as a foundation of 
 a suit by legatees, is now in controversy. 
 
 Anciently, the ordinary was entitled to 
 apply the residue of iutestates's estates, aft- 
 er the payment of debts, to whatever pur- 
 pose his conscience might approve. To cor- 
 rect the fiagrasit abuses occasioned by this 
 power, the statute 31 Edw. Ill, st. 1, c. 11, 
 provided that, "in case where a man dieth 
 intestate, the ordinaries shall depute of the 
 
 *29 
 next and most lawful friends of *the dead 
 person intestate, to administer his goods," 
 &c. (1 Wms. Ex'ors. 263.) These adminis- 
 trators, until bonds were required by stat- 
 ute, were entitled to enjoy exclusively the 
 residue of the intestate's effects, after the 
 liayment of the debts and funeral expenses ; 
 and where the ordinaries attempted to en- 
 force distribution, by taking bonds from the 
 administrators for that pui-pose, such bonds 
 were prohibited by the temporal courts, and 
 declared to be void in point of law, on the 
 ground that, by the grant of administration, 
 the ecclesiastical authority was executed, 
 and ought to interfere no further. (2 Wms. 
 Ex'ors. 1056.) To remedy this mischief, was 
 passed the English statute of distributions, 
 22 and 23 Car. II. c. 10, which establishes 
 the order of distribution, and empowered the 
 ordinary to take bond from an administra- 
 tor, with two or more sureties, the form of 
 the condition of which was prescribed, mu- 
 tatis mutandis. (2 Wms. Ex'ors. 1057.) Our 
 Act of 1789, (5 Stat. 106.) pursuing the same 
 policy, in section 21, prescribes the form of 
 the condition of the bond to be given by a 
 common administrator, and, in section 20, 
 the form of the condition of the bond to be 
 given by an administrator with the will an- 
 nexed ; and, further provides, that if the 
 ordinary fail to take bond as aforesaid, he 
 .shall be liable to be sued, for all damages 
 arising from such neglect, by any person in- 
 terested in the estate. It thus appears that 
 this whole matter, as to distribution and 
 bonds, is of statutory regulation. 
 
 The condition of the bond now in question 
 does not conform to the prescriptions of our 
 Act of 1789, neither as to a common adminis- 
 trator, nor as to an administrator with the 
 will annexed. It omits the clause required 
 in the former case, "and if it shall hereafter 
 appear that any last will and testament was 
 made by the said deceased, and the same be 
 proved in court, and the executors obtain 
 a certificate of the probate thereof, and the 
 said administrator do in such ease, if requir- 
 ed, render and deliver up the said letters of 
 administration;" and it omits all reference 
 to the will of the deceased, and the clause 
 required in the latter case, — "and, further, 
 do well and truly pay and deliver all the 
 legacies contained and specified in the said 
 
 *30 
 will, as far as the *said goods, chattels and 
 credits will extend and the law require."
 
 WALKER V CROSLAXD 
 
 *32 
 
 The Courts in this State have decitled, in 
 many casos, that bonds taken in pnrsnance of 
 statutes directing their snbstantial provisions, 
 and not expressly deehirinj; void Ijonds taken 
 in other form, are >;ood. if the provisions of 
 the statutes be complied with in suhstance, — 
 if the JHinds be not uidawful in themselves, 
 and if the ublijlors be not subjected to disad- 
 vantajjre beyond the reciuirements of tlie stat- 
 utes ; — as in sberiftVs bonds before our Act 
 of 18li!t, prescribinj,' the forms of bonds to be 
 given by public otlicers, replevin bonds, at- 
 tachment bonds, injunction bonds. &e. Treas- 
 urers v. Stevens, 2 :McC. 107 ; Treasurers v. 
 Bates, 2 Bail. 862: I^e v. Warinj:. 3 Des. 57; 
 Kiljiore v. Rabb, 1 N. & McC. .'5:31; Leach v. 
 Thomas. 2 N. & McC. 110; Cay v. Galliott, 4 
 Strob. 2S2. The case of Commissioners v. 
 (Jains, 1 Tread. 451), affords an instance 
 where the bond was considered void for sub- 
 stantial departure from tlie I'equirements of 
 the statute. In some of the cases, tlie un- 
 lawful conditions only have been annulled, 
 and the bonds lield good, as in Anderson v. 
 J'oster. 2 Bail. 501 ; Boniar v. Wilson, 1 Bail. 
 461; Dudley (Geo. R.) 22. 66. But none of 
 these cases has full application to sucli a 
 case as we now have before us, where the 
 precise form of the bond is given by tlie 
 statute. Ordinary v. Blancliard, (3 Brev. 
 136.) is the only case in tliis State, cited to 
 us, in which the condition of an administra- 
 tion l)ond has been submitted to judicial con- 
 struction, and the decision there cannot 1)6 
 regarded as authoritative. The condition of 
 the bond, there, pursued nearly the form 
 prescribed by tlie Englisli statute of distribu- 
 tions, and provided, amongst other things. 
 that "all the rest and residue of said goods, 
 &c. shall deliver and pay unto such person 
 or persons, respectively, as the said ordinary, 
 b.v his decree, or sentence, pursuant to the 
 true intent and meaning of the statutes and 
 Acts of Assembly of force in this State, for 
 the better settling intestates's estates, shall 
 limit and appoint," instead of — "all the rest, 
 &c. shall deliver and pay unto such i)ersons 
 resi)ectively, as are entitled to the same by 
 law," prescribed by the Act of 17.s!>. Justices 
 
 *31 
 Nott and Smith thought the *variance fatal; 
 Colcock. that the bond sulficiently answered 
 the intent of our Act: and Brevard, that the 
 bond was favorable to the administrator, not 
 unlawful in itself, nor against the policy of 
 the State, and intimated doubt whether the 
 St. Car. II. was repealed; and the other 
 Judges do not appear to have given any 
 opinion. 
 
 The present case seems to be within the 
 principle of Brown v. Spand, (2 Mill, 12,) 
 where a married woman, entitled in fee to 
 land, had joined her husliand in tlie execution 
 of a release of the land, and had relinquish- 
 ed her dower according to the f<jrm given in 
 the Act of 1795, by wliich she renounced "all 
 her interest and estate, and all her right and 
 
 claim of dower." In a relinquishment of in- 
 heritance, the married woman is rcipiired to 
 renounce all her interest, estate and inherit- 
 ance. It was held that the woman was not 
 barred, mainly on the ground that the words, 
 in the forms for relimpiishing dower and in- 
 heritance, are not equivalent. Judge Nott, 
 (U'livering the opinion of the Court, says, 
 "the words here used, are those required in 
 a renunciation of dower, whereas, in a re- 
 lease of the fee simple, the word inheritance 
 is expressly required. So that whatever 
 meaning the words might have had otherwise, 
 the Act has given a meaning to them which 
 can not be departed from." By like reason- 
 ing, we may conclude, that although legatees 
 may be considered, in a popular sense, as en- 
 titled by law to their legacies, yet the Legis- 
 lature, by requiring an administrator on a 
 will to covenant expressly, "well and truly 
 to pay and deliver all the legacies contained 
 and specified in the will," &c. has limited the 
 application of the terms, "entitled by law," to 
 such persons as are entitled by the statute 
 of distributions. If the bond here had con- 
 formed with reasonable sti'ictness to the con- 
 dition exacted from a general administrator, 
 it might, perliaps. have been upheld, on the 
 presumption that the ordinary had judicially 
 determined the case to be one of intestacy, 
 but the omission of that part of the condi- 
 tion which provides for the surrender of the 
 administration on the probate of a will, cer- 
 tainly extends and anq)lilies the liability of 
 
 *32 
 the administrator and his sureties. *The 
 disadvantages incurred by the obligors by 
 being required to enter into a bond for the 
 administration of an intestate's estate, in- 
 stead of a bond for the administration with 
 the will annexed, are well iiointed out in the 
 circuit decree. In Monk v. Jenkins. (2 Hill 
 E(l. 12,) Chancellor Harper says, "where a 
 statute is passed, authorizing a proceeding, 
 which was not allowed by the general law be- 
 tV>re, and directs a mode in which the act 
 shall be done, the mode pointed out must be 
 strictly pursued. It is a condition on which 
 alone the party can entitle himself to the 
 benetit of the statute, otherwise the act is 
 void." 
 
 In Virginia and Kentucky, the conditions 
 of bonds required from common administra- 
 tors, and administrators with the will annex- 
 ed, are almo.st literally the same with those 
 prescribed in our Act of 178'.): and in tho.se 
 States we have express authorities on the 
 point under discussion, which we are content 
 to follow. The case of Frazier v. Frazier. 
 sutHciently noticed in the opinion of the 
 Chancellor, was re-affirmed in the case of 
 Morrow v, Peyton, (8 Leigh, 54.) 
 
 In Fulcher v. Commonwealth, (3 J. J. Mar- 
 shall. 5!>2) the bond, on which the suit was 
 fitunded, had the condition of an ordinary 
 administration bond, but did not contain the 
 condition for the payment of legacies, requir- 
 
 13
 
 *32 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 ed from an administrator cum testamento 
 annexe. Held, that the administrator and 
 his sureties were not liable to suit for a lega- 
 cy. See Moore v. Waller, 1 Marsh. 488; 
 Barbour v. Robertson, 1 Litt. 93. 
 
 We are of opinion that the bond is not 
 good as a statutory bond. 
 
 On the second ground of appeal, it may be 
 remarked that, if the bond, void for noncon- 
 formity to the statute, be good as a bond at 
 common law, it is only good for the indemni- 
 ty of the Ordinary, and in that phase, the Or- 
 dinary would be the obligee in interest, and 
 his misrepresentation, even if growing out 
 of a mistaken construction of the will, occa- 
 sioning liability and damage to the obligors, 
 nngnt be well held to render the bond void. 
 We prefer, however, to put our decision on 
 the ground that, according to the cases above 
 
 *33 
 cited, a legatee has no right *to sue on this 
 bond ; and that the question of its validity, 
 at the common law, can be properly determin- 
 ed only in a suit in the court of law, in the 
 name of the Ordinary. 
 
 It is ordered that the appeal be dismissed, 
 and the decree of the Chancellor be affirmed. 
 
 DUNKIN, Ch. concurred. 
 
 DARGAN, Ch. having been of counsel, did 
 not hear the case. 
 Appeal dismissed. 
 
 3 Rich. Eq. 33 
 EDWARD FOOTMAN et al. v. BENJAMIN 
 
 R. PENDERGRASS et al. 
 
 SAME V. WILLIAM STAGGERS and W. H. 
 
 CARTER, Sheriff. 
 
 (Columbia. Nov. and Dec. Term, 1850.) 
 
 [Fraudulent Conveyances <©=32.] 
 
 The current of decisions in this State seems 
 to be that the Statutes 13 and 27 Eliz.. are in 
 affirmance of the common law; and, at the com- 
 mon law, no distincti<iu exists between the rights 
 of creditors and purchasers as against a prior 
 voluntary conveyance. 
 
 [Ed. Note. — For other cases, see Fraudulent 
 Conveyances, Cent. Dig. § 3; Dec. Dig. <©=>2.] 
 
 [Fraudulent Conveyances <©=>74, 75.] 
 
 A voluntary conveyance, without actual 
 fraud in its origin, is valid against the claims 
 of a subsequent purchaser or creditor of the 
 donor without notice. 
 
 [Ed. Note.— Cited in Smith v. Smith, 24 S. 
 C. 315. 
 
 For other cases, see Fraudulent Conveyances, 
 Cent. Dig. §§ 189, 191; Dec. Dig. <©=>74, 75.] 
 
 [Fraudulent Conveyances <©=>29S.] 
 
 A subsequent sale of the property by the 
 donor, without notice to the purchaser, is evi- 
 dence, but not conclusive evidence, of fraud in 
 the prior voluntary conveyance. 
 
 [Ed. Note. — For other cases, see Fraudulent 
 Conveyances, Cent. Dig. §§ 892-895 ; Dec. Dig. 
 «©=5298.] 
 
 [Fraudulent Conveyances i©=3275.] 
 
 As against such a purchaser, without no- 
 tice, the onus of shewing that the voluntary 
 
 conveyance was without fraud, is, it seems, up- 
 on the donee. 
 
 [Eu. Note — For other cases, see Fraudulent 
 Conveyances, Cent. Dig. § 807; Dec. Dig. <©=> 
 275.] 
 
 [Fraudulent Conveyances <S=»132.] 
 
 The continued possession of the donor is 
 also a badge of fraud, but that is explained 
 where the possession is consistent with the terms 
 of the conveyance. 
 
 [Ed. Note. — For other cases, see Fraudulent 
 Conveyances, Cent. Dig. §§ 407, 422 ; Dec, Dig. 
 ©=132.] 
 
 [Bales <©=>2.35.] 
 
 A purchaser, with notice, cannot avail him- 
 self of the Statute 27 Eliz.; and such notice as 
 would put the party on the enquiry, as would 
 enable him witu ordinary diligence to ascertain 
 the fact, is deemed sufficient. 
 
 [Ed. Note.— Cited in Gibbes v. Cobb. 7 Rich. 
 Eq. 67. 
 
 For other cases, see Sales, Cent. Dig. § 681; 
 Dec. Dig. <©=3235.] 
 
 Before Dunkin, Ch., at Williamsburg, 
 March, 1850. 
 
 In the case first stated. Footman v. Pen- 
 dergrass, the following is the decree of the 
 circuit Chancellor: 
 
 Dunkin, Ch. This cause was originally 
 heard by the late Chancellor Caldwell, at 
 March sittings, 1848. On appeal from his 
 decree, the case was remanded to the Circuit 
 Court for rehearing, on the ground that his 
 
 *34 
 Honor, the presiding Chancellor, *had incor- 
 rectly permitted a commission to be receiv- 
 ed in evidence, which had been conveyed 
 from the Commissioners in Orangeburg by 
 Wm. C. Footman, the husband of one of the 
 parties in interest. (See 2 Strob. Eq. 317.) 
 
 The case was again fully heard. The ma- 
 terial facts, as set forth* in the decree of 
 Chancellor Caldwell, were fully substantiat- 
 ed. So far as a negative is susceptible of 
 proof, it was shewn that Wm. C. Footman 
 was clear of debt at the date of the instru- 
 ment, although, as intimated b.y the Chan- 
 cellor, the property is only protected from 
 the future debts or contracts of Wm. C. Foot- 
 man, and not from existing engagements. It 
 is very doubtful whether, at the time of mak- 
 ing the deed. Footman had any purpose of 
 removing to South Carolina. The evidence 
 does not seem to warrant that inference. 
 But after he returned to the State, it is diffi- 
 cult to say that there was any attempt to con- 
 ceal the situation of tlie property. On the 
 contrary, the general understanding of the 
 community, as proved by the defendant's wit- 
 nesses, was, that from his coming back no 
 credit should be given to Footman unless 
 his wife .ioined in the contract. R. G. Fer- 
 rell gives the probable reason whj'- the deed 
 itself was not put on record in the clerk's 
 office at Williamsburg. He was clerk of the 
 Court and register of deeds. Peter M. Oliver 
 brought him the deed. The witness told him 
 it was well drawn, but the probate was not 
 such as would authorize him to record it. 
 
 14 
 
 <g=»For othsr cases see same topic and KEY-lsUMBEIl in all Koj -Numbered Digests and Indexes
 
 FOOTMAN V. PENTDEUGRASS 
 
 •37 
 
 Oliver himself took It back, and said he 
 woitld have it sent to Geor^n and pi-oved. 
 Oliver himself was a very ui)rl«ht man, in- 
 capalile of fraud himself, or of countciiancinj? 
 fraud in another. Footman had manicil his 
 half sister, and he, Oliver, had married the 
 sister of the defendant. Tenderjirass. Oliver 
 recommended to the defendant to make the 
 loan, hut told him he must liave the signature j 
 of Mrs. Footman. Oliver must have known 
 of the existence of tlie deed; hut both he, 
 and probably Footman, and his wife. thoUL'ht 
 lliat if Mrs. Footman joined in the mortiiajie. 
 it would be perfectly valid. I'enderjirass 
 .says, and the Court does not doubt the cor- 
 rectness of his assertion, that he was un- 
 aware of the existence of the deed when he 
 *35 
 
 njade the *loan. yet he certainly was advised 
 that he could not safely treat with Footman, 
 unless his wife united in the contract. But 
 even a bona tide purchaser for valuable con- 
 sideration, without any notice to put him on 
 the intpiiry, cannot defend himself against 
 one having the legal title. It is impossible 
 not to sympathise with the defendant, who 
 seems to have been not onl.v a confiding, but 
 an indulgent creditor. Fntil the I'ecent case 
 of Keid v. Lamar, [1 Strob. Eq. 127,] the pow- 
 er of a married woman in relation to the 
 e.state settled upon her, was not very distinct- 
 ly detined, or w'ell understood, even l)y the 
 profession. 
 
 The Court does not undertake to repeat 
 all that is said in Chancellor Caldwell's de- 
 cree, but adopts it as the decree now made. 
 There was no proof as to the time of the 
 death of Peter Oliver Footman, or v*ho was 
 his legal representative. Tli*> legal title to 
 the slaves claimed is in Edward Footman, 
 the trustee, and he is entitled to a decree for 
 .si)ecific delivery. That is the only issue pre- 
 sented by the pleadings. 
 
 It is ordered and decretnl, that the defend- 
 ant, Renjamin H. I'endergrass, be perpetual- 
 ly enjoined from selling the negroes under 
 the mortgage, and that he forthwith deliver 
 such as are in his power or possession, to the 
 complainant, and that he account for the 
 hire of such of the slaves as have been under 
 Ins control or possession ; and that it be re- 
 ferred to the Commissioner to ascertain and 
 report the same. The plaintiffs to pay their 
 own costs, and Wm. C. Footman to pa.v the 
 costs of the defendant, Benjamin II. Fender- 
 grass. 
 
 In the case of Footman v. Staggers I't Car- 
 ter, the following is the circuit decree: 
 
 Dunkiji, Ch. This case was heard with 
 that of tlie same plaintiffs against Bcnj. K. 
 i'endergrass. The difference in the circum- 
 stances is, that pending the proceedings in 
 that case, and after an injunction ordered 
 by Chancellor Johnston, the defendant, N^il- 
 liam Staggers, caused a levy to l)e made on 
 two of the uegroes embraced in the deed to 
 
 the i»!aintl(T. and purchased them him.self at 
 the sherilT's sale. 
 
 •36 
 
 *It is ordered and decreed, that the defend- 
 ant, William Staggers, deliver up to the 
 plaintiff ihe slaves, Prince and George, and 
 account for their hire since 15 Ai>ril, 1847, 
 to ascertain winch hire a reference is order- 
 ed. Co.sts of the proceedings to be paid by 
 the defendant, William Staggers. 
 
 The defendants, Pendergrass and Stag- 
 gers, appealed, on the foUowing grounds: 
 
 l^t. Because all tiie circumstances of the 
 whole tran.^action shew that the deed origi- 
 nated in fraud, and tlie Chancellor should 
 so liave decreed. 
 
 2nd. Because the deed being the voluntary 
 conveyance of the husband to his wife and 
 children after marriage, was void against 
 sul)se(iuent creditors and purchasers. 
 
 ord. Becau.se the deed is to be regarded as 
 a post nuptial settlement, and void against 
 creditors and purchasers. 
 
 4tli. Becau.se. in any event, the Chancellor 
 should have decreed the interest of the said 
 W. C. Footman, as a distributee of the de- 
 ceased child, IVter Oliver Footman, under 
 the said deed, liable to the claim of the ap- 
 pellants. 
 
 5th. Becau.se the decree is in other respects 
 against justice, equity and conscience. 
 
 F. J. Moses, for appellants, 
 Ilaynsworth, Rich, contra. 
 
 DCNKIX. Ch.. delivered the opinion of the 
 Court. 
 
 Both the Chancellors who heard these caus- 
 es at the circuit having concurred in the 
 oi)inion that there was no fraud in fact in 
 the deed of March, 1S.S2, it would reiiUire a 
 strong case of misapprehension on their part, 
 to induce this Court to revise the decree on 
 the first ground assumed by the appellants. 
 But so far from this, although the ground 
 was taken, no commentary on the evidence 
 was oft'ered, and no argument urged on 
 which it was to be sustained. 
 
 The parties had formerly resided in 
 Orangeburg district, in South Carolina, and 
 removed to (Jeorgia. Before leaving this 
 State, Footman had been embarrassed, but it 
 
 *37 
 was proved by Col. *«ilover of Orangeburg, 
 that Footman afterward receiviul a legacy 
 from .Mr. Caldwell, a relative, and that the 
 witness, as his a.gent, discharged every debt 
 which he knew to exist against him. There 
 was no proof that an.v debt remained unpaid. 
 Mr. Robert Habersham, of Savannah, was 
 the factor of Footman while in (Jeorgia. He 
 j>roved that in March, l.s;>2, he owed no debts 
 except one or two, for the discharge of 
 which, funds were placed in the hands of 
 witness, and the debts paid. This is the sub- 
 stance of his testimony, although his exam- 
 ination was not put in possession of the 
 
 15
 
 ^37 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 Court. Superadded to this, is tlie express ] 
 provision of tlie deed, tliat tlie exemption of 
 tlie property is only from "such debts, or 
 contracts, as may hereafter be incurred, or 
 entered into, by the said William C. Foot- 
 man." The deed was recorded in the proper 
 office of the county in which the parties re- 
 sided in the month after its execution, to 
 wit, on the 11th April, 1832. In the decree 
 last pronounced, it is said to be "very doubt- 
 ful whether, at the time of making the deed. 
 Footman had any purpose of removing to 
 South Carolina. The evidence does not seem 
 to warrant that inference." If this is a mis- 
 apprehension, it could be demonstrated by 
 the adduction of the evidence. The deed was 
 executed on the 5th March, 1832. Footman 
 did not remove to South Carolina till the 
 Fall of that year, and the liegroes remained 
 until the following year. But after his re- 
 turn to South Carolina, the deed, which had 
 been recorded in Georgia, was carried to the 
 clerk of the Court in Williamsburg, (to which 
 district they had removed,) for the purpose 
 of being placed on record. But Mr. Ferrell, 
 the clerk, testified, that he told the person 
 who brought it, that, although the deed was 
 properly drawn, the probate was not such as 
 would authorize him to record it. But it 
 was abundantly proved, and particularly by 
 the defendant's witnesses, that from the time 
 of Footman's return to this State, no credit 
 would be given to him unless his wife joined 
 in the contract. In the language of the wit- 
 nesses, she was regarded as a sole trader. 
 Under these circumstances, some four years 
 after Footman's return to this State, to wit, 
 in February, 1S37, the defendant made the 
 
 *38 
 loan. Peter *M. Oliver, the friend and broth- 
 er-in-law, both of Footman and the defend- 
 ant, and who had carried the deed to the 
 clerk's office for record, advised the defend- 
 ant to make the loan, but told him to have 
 the signature of Mrs. Footman. Oliver was 
 a man of unimpeachable integrity. The de- 
 fendant took the bond of Mr. and ]Mrs. Foot- 
 man, and, to secure the payment, they exe- 
 cuted to him a mortgage of a tract of land, 
 and also of a portion of the slaves included 
 in the deed of March, 1832. It is intimated 
 in the decree of the Circuit Court, that all 
 the parties probably acted under a misappre- 
 hension of the extent of Mrs. Footman's 
 power over her separate estate. Wiser men 
 than the defendant, and better lawyers than 
 Footman, have fallen into similar errors. 
 I'endergrass says he did not know of the ex- 
 istence of tl'-is deed, and his assertion is en- 
 titled to full credit. But is it not demon- 
 strated that before he made the loan, he was 
 distinctly advised that, in order to render 
 the mortgage of the slaves valid, Mrs. Foot- 
 man must join in the execution of the in- 
 strument. If Footman alone was the owner 
 of the slaves, why take the joint bond and 
 joint mortijage? Did not this clearly indi- 
 
 .16 
 
 cate that Mrs. Footman had an Interest in 
 the premises, and put him on the inquiry as 
 to the extent of her authority? 
 
 But the second ground assumes the posi- 
 tion, and it is on this that the counsel chief- 
 ly relies, that although the deed of March, 
 1832, was bona fide, and that the party was 
 not in debt at the time, yet, being voluntary, 
 it is void against subsequent creditors and 
 purchasers. 
 
 I think the proposition is properly put. 
 For although many of the English cases cit- 
 ed are on the Statute 27 Eliz., yet it is con- 
 ceded that this statute embraces only con- 
 veyances of real estate. But the current of 
 our own decisions seems to be, that the stat- 
 utes, both of 13 and 27 Eliz., were only in 
 affirmance of the common law. I am not 
 aware that by the common law any distinc- 
 tion existed between the rights of creditors 
 and those of purchasers. Conveyances, which 
 wei'e fraudulent and covinous, were void as 
 to both. But one of the leading cases, ad- 
 duced in support of the appeal, was Cath- 
 
 *39 
 cart V. Robinson, (5 I'eters, *264 [8 L, Ed. 
 120]). This turned on the construction to be 
 given to the Statute 27 Eliz. ; Chief Justice 
 Marshall says, the recent English decisions 
 upon this statute "go beyond the construc- 
 tion which prevailed at the American revolu- 
 tion, and ought not to be followed." He fur- 
 ther says that "the principle which, accord- 
 ing to the uniform course of this Court, must 
 be adopted in construing the Statute 27 Eliz. 
 is, that a subsequent sale without notice, by 
 a person who had made a settlement not on 
 valuable consideration, was presumptive evi- 
 dence of fraud, which threw on those claim- 
 ing under such settlement, the burthen of 
 proving that it was made bona fide." None 
 of our own decisions go beyond this. To say 
 that a second sale for valuable consideration, 
 by a man who had previously made a volun- 
 tary settlement of the same property, is, per 
 se, conclusive evidence of fraud in the settle- 
 ment, seems not sanctioned by reason. A 
 second sale for valuable consideration, by a 
 man who has already sold the same estate to 
 another purchaser, is conclusive evidence of 
 fraud, but surely not in the former sale, but 
 in the second ; and so, if a father in affiu- 
 ent circumstances makes a deed of gift of 
 two slaves to his son, and five years after- 
 wards sells the same slaves for valuable con- 
 sideration, how can it be affirmed with rea- 
 son that this is conclusive evidence of fraud 
 in the previous gift? It indicated caprice 
 and injustice to his child, and fraud in the 
 sale to the bona fide purchaser, but is any 
 thing else than conclusive, that the gift five 
 years previously, was concocted in fraud. 
 Hudnal v. A\ ilder, (4 McC. 294 [17 Am. Dec. 
 744,]) was determined on the ground of 
 fraud in fact in the previous voluntary set- 
 tlement, as aflirmed by two concurring ver- 
 dicts. It was, therefore, unnecessary to give
 
 FOOTMAX V. PENDERGIIASS 
 
 *42 
 
 fi construction to tlio Statute 27 Eliz., even 
 if it had applied to personalty. Judge Nott, 
 liowever, oft'ers some observations on the 
 reason of the law for considering fraudulent 
 voluntary transfers by a jirantor. who still 
 continues in possession. "Possession." .says 
 he, "is the highest evidence recogiuzed hy 
 law, of a right to personal property. A ven- 
 der continuing in possession, is regarded, as 
 to creditors or subsetiuent purchasers, as the 
 owner, against the most solemn uncondition- 
 
 *40 
 al deed to a bona *fide purchaser not in pos- 
 session." He afterwards says, "if such gifts 
 or conveyances are to prevail against credi- 
 tors and bona tide purchasers, it is impossi- 
 ble to foresee to what extent frauds may not 
 be carried." It will be perceived that credi- 
 tors and subsequent purchasers are iilaced 
 by him in the same category, and their rights 
 on the same footing. But the .Judge admits, 
 as has Ix^en repeatedly adjudicated, that, 
 where the object of the deed was to make 
 provision for the wife and children who were 
 living with the donor, his i)ossessi(ui was 
 consistent with the terms of the deed. and. 
 therefore, repelled the presumption of fraud 
 arising from the variance between the terms 
 of the deed and the i)ossession. But if the 
 deed were, per se, fraudulent, as to creditors 
 and purchasers, because voluntary, how could 
 this explanation make any ditlerence? The 
 common law, as has been said, recognizes no 
 distinction between the rights of creditors 
 and sul>.se(iuent purcha.sers in reference to 
 voluntary deeds. I am unable to find any 
 decision of our own Courts, in which a deed 
 has been declared void in favor of a subse- 
 (luent purchaser, which would not also have 
 been declared void in favor of a creditor. 
 Both stand on the character of the voluntary 
 settlement. The iiKjuiry always is bona fide 
 or mala fide. The decisions point out vari- 
 ous badges of fraud, such as. in some cases, 
 the continued possession of the donor, his ex- 
 isting indebtedness. &c. &c. ; and the execu- 
 tion of a second deed, for valuable consid- 
 eration, of the .same i)roperty. may well war- 
 rant a jury in referring back the fraudulent 
 purpose to the time of the execution of the 
 I»revious voluntary .settlement. But it is no 
 where said that this is a legal inference, or 
 a presumption not to be repelled by proof to 
 the contrary. If it eonld be shewn that the 
 donor had abundant means, not only at the 
 time of the gift, but at the time of the sukse- 
 Miient sale, and that he was entirely able to 
 i'ldciiinify the purchaser on his warranty. 
 Would not this evidence satisfactorilv repel 
 any presumption of fraud in the original 
 gift, and shew, that if any fraud existed, it 
 was in tlie second sale, and in tlult aloneV 
 Is there any adjudication of our Courts, 
 which would warrant the purchaser in in- 
 
 *41 
 sisting on *the voluntary character of the 
 settlement, as conclusive evidence of fraud, 
 3 Kicu.Ey.— 2 
 
 and in retaining th(> projierty against the 
 donee, although abundantly i)rotected by his 
 warranty'/ If not, then the execution of the 
 second din-d is oidy one of the circumstances 
 from which fraud in the former deed may be 
 inferred; and this is in perfect harmony 
 with Cathcart v. Bobinson. The ju<lgment 
 of the Sui)reme Court of the Cnited States in 
 that ca.se carries the ductrine tpiite as far as 
 it has been hitherto recognized in this State, 
 and that only throws, on those claiming un- 
 der the voluntary settlement, the onus of 
 shewing that it was made bona fide. 
 
 But there can be no doubt that, according 
 to the American decisions, a purchaser, with 
 notice, cannot avail himself of the Statute 
 27 lOliz., and it is equiilly well settled, that 
 such notice as would put the party on the 
 en(|uiry, as would enable him with ordinary 
 diligence to ascertain the fact, is deemed suf- 
 ficient, ([lludnal V. Teasdall] 1 McC. 2:;i [1(1 
 Am. Dec. G71].) The defendant was about to 
 lend his money to a man who, according to 
 the distinct testimony of his own witnesses, 
 for the last four or five years, had no credit 
 unless his wife joined in the contract. He 
 was cautioned that he must have her signa- 
 ture in this particular transaction. But Mrs. 
 Footman, being a married woman, could have 
 no authority to do any act but as derived 
 from some deed, or will. The fact of re(iuir- 
 ing her signature to the mortgage, and th(> 
 fact of her joining in tne execution, while it 
 shewed that Footman was not understood to 
 possess the absolute dominion over the prop- 
 erty, pointed also to the exi.stence of some 
 authority under which his wife acted. This 
 was the inquiry which the defendant was 
 bound as a prudent man to pursue. Oliver, 
 who had given him the caution, had himself 
 carried the deed to the clerk's ottice for rec- 
 ord. He would certaiidy have told him of 
 the existence of the deed, (as was. in fact, im- 
 plied by his caution to him,) although it is 
 most probable he would at the same time 
 have assured him. that Mrs. Footman was 
 authorized by the deed to execute the mort- 
 gagi'. The Circuit Chancellor intimates the 
 oiiinion, that such seems to have been the 
 view of all the partii's to the transaction. 
 
 *42 
 *I!ut this can have no elTect on the construc- 
 tion which the Court nuist give to the deed, 
 or upon the rights of the parties claiming 
 under that deed. 
 
 This Court perceives no error in the de- 
 crees which are the subject of this ai)peal. It 
 is ttrdered and decreed that the .same be 
 altirmed, and the aiipeals dismissed. 
 
 JOHXSTOX, Ch., concurred. 
 
 DAIKJAX. Ch.. dissenting. Wm. C. Foot- 
 man, originally an inhabitant and citizen of 
 South Carolina, but afterwards residing in 
 Bryan County, in the State of Georgia, at the 
 last mentioned place executed a deed, bearing 
 
 17
 
 *42 
 
 RICHARDSON'S EQUITY REPORTS 
 
 date the 5th day of March, 1832, by which 
 he conveyed to Edward Footman sundry ne- 
 groes, therein named, constituting, so far as 
 appears, all his property, and certainly the 
 great bulk of his estate, in trust for the sole 
 and separate use of his wife, Mariah H. 
 Footman, and of his children, then in esse, 
 and any future issue to be begotten between 
 the said Wm. C. Footman and his wife 
 Mariah H. Footman. At the date of the deed 
 the parties and slaves resided in Bryan Coun- 
 ty, in the State of Georgia, and it appears to 
 have been duly registered according to the 
 statutory provisions of that State. Chancel- 
 lor Caldwell (whose statement of the proof 
 Chancellor Dunkin in the main adopts,) says 
 that "the donor had formed the intention of 
 removing to South Carolina before the execu- 
 tion of the deed, and accordingly did remove 
 to this State afterwards." After the execu- 
 tion of the deed the negroes remained in 
 Georgia about a year, and were then 
 brought to this State. There is no evidence 
 that the trustee, who did not reside in South 
 Carolina, ever accepted the trust, or had any 
 knowledge of the deed by which it was creat- 
 ed. AVm. C. Footman and family, on their 
 return to South Carolina, settled in Williams- 
 burg district, where Mrs. Footman, though 
 not engaged in mercantile pursuits or trade 
 of any kind, was reputed to be a feme sole 
 trader. It is a popular error that any mar- 
 ried woman, whether engaged in trade or not, 
 can become a free dealer, as it is called, sim- 
 ply by a publication of her intention to as- 
 
 *43 
 sume that *character. The property remain- 
 ed in the possession of Wm. C. Footman, and 
 was ostensibly his own. The only suspicion 
 upon his title was, that Mrs. Footman, as a 
 sole trader, might have some claim upon it. 
 
 Under these circumstances, the defendant, 
 Pendergrass, on the 2d day of Feln-uary, 1837, 
 loaned Footman and wife ^2;2S2, taking their 
 bond, payable in ten years; and, to secure the 
 payment, took from them a mortgage of a 
 tract of land, and four slaves (the slaves be- 
 ing some of those embraced in the trust deed.) 
 And afterwards, on the 11th March, 1845, 
 Footman and wife being indebted to Pender- 
 grass for arrears of interest and for supplies 
 of corn and advances of money, executed to 
 him a bond for $1,070, payable on the 11th 
 March, 1846; and, to secure the payment, 
 they executed a mortgage of sundry other ne- 
 groes, being of those embraced in the deed of 
 trust. It was not proved that the existence 
 of this deed was known to more than two per- 
 sons in South Carolina. The defendant was 
 advised, on loaning the money, to have the 
 signature of Mrs. Footman to the bond; but 
 It was not .shewn that the ground of this ad- 
 vice was the fact of the property being settled 
 in trust. But, on the contrary, the defendant, 
 answering re.sponsively to the bill, has stated 
 his utter ignorance of that fact, and that the 
 reason of his joining Mrs. Footman in the 
 18 
 
 bond and mortgage was the general impres- 
 sion that she was a sole trader. One thing 
 is certain, the Footmans (husband and wife,) 
 borrowed the defendant's money to a large 
 amount, (considering their means,) and mort- 
 gaged negroes to secure the debt, without giv- 
 ing him the slightest intimation that the 
 property upon which they obtained the loan 
 was conveyed by a prior deed of trust. This 
 certainly was a vile fraud upon the defend- 
 ant, whatever may have been the character 
 of the trust in its inception. 
 
 Both the Chancellors, who have heard this 
 cause on circuit, liave decided that there was 
 no actual fraud proved as to this deed at 
 its execution; or, in other words, that no 
 fraud was then meditated. Upon this ques- 
 tion of actual fraud, according to the proof 
 made, I should have come to the same con- 
 
 *44 
 elusion. But I *cannot say that my suspi- 
 cions have not been strongly awakened, and 
 that, in my apprehension, there is not, if I 
 may be allowed to use the expression, an odor 
 of fraud arising from the circumstances. 
 And if (according to some of the decisions) 
 a voluntary convej'ance, coming into collision 
 with a subsequent bona fide conveyance for 
 valuable consideration, is subject to the prima 
 facie presumption of fraud, which it is neces- 
 sary to rebut, then I think the complainants 
 have most signally failed ; for in my judg- 
 ment, the circumstances elicited on the trial, 
 if such prima facie presumption is to have 
 its weight, serve rather to strengthen than 
 to rebut it. 
 
 But the great question of this case, and 
 one that is highly important in reference to 
 its general bearing, I will now proceed to 
 discuss. Is it true, as an abstract legal 
 proposition, that a voluntary conveyance, 
 without actual fraud in its origin, is valid 
 against the claim of a subsequent purchaser 
 for valuable consideration, and without no- 
 tice? Upon this question the majority of 
 this Court, as at present constituted, has 
 responded in the affirmative. I feel con- 
 strained to say, in reference to the judgment 
 which has been announced, that I differ toto 
 coelo. My opinion on this question has not 
 been hastily adopted, nor formed at the pres- 
 ent time. It is coeval with my earliest ac- 
 quaintance with this branch of the law. It 
 was derived from the most authoritative ex- 
 positors, and has been strengthened by sub- 
 sequent study and research. An opinion 
 thus deliberately formed, I find it difHcult 
 to yield without a struggle ; more particu- 
 larly as I have read or heard nothing to 
 shake it, and find myself supported by some 
 of the ablest and most learned Judges who 
 have ever presided in the English or Ameri- 
 can courts. 
 
 Is the legal proposition, as I have above 
 stated it, true? There are few, I presume, 
 who would have the temerity to deny that 
 the converse of the proposition is the law
 
 FOOTMAN V. TEXDERGRASS 
 
 that at tliis day prcviiils. mid for agos past 
 has jji-fvalled. in WcstiuinsttT Hall. Indeed, 
 many of the Enjilish decisions, (in fact, hy 
 far the greater part.> go so far as t<» say 
 that want of notite is ininniterial. and that 
 the prior voluntary conveyance, though un- 
 
 *45 
 impeached f()r *aitual fraud, is void against 
 the sultseipient purchaser for valuahle con- 
 sideration, even with notice. We know, from 
 the most authentic judicial history of those 
 times, that this construction of the statute 
 l-'T Eliz. prevailed in the English courts from 
 a period almost cotemporary with its en- 
 actment. In rpton V. liassett, Cro. Eliz. 44.1, 
 (only ten years after the enactment of 27 
 Eliz.) "there was an evident admission and 
 understanding." .says ChanceHor Kent, in 
 Sterry v. Arden. (1 .Johns. Ch. L'ni.t "of all 
 the Judges, that a voluntary conveyance was 
 void under the 27 Eliz. against a sulisei|uent 
 liona tide purchaser for valuahle consider.a- 
 tion." I have examined this case, and con- 
 cur with the learned Chancellor in the in- 
 ference which he has deduced from it. I 
 lemark, further, that Owen, .J., "accorded" 
 as the reporter has expressed it. with the : 
 other Judges "in omnihus. and said that he j 
 was present at the making of the .statute." | 
 
 Early in the next reign, in the 5th of 
 Jame.s the first, the same construction was ] 
 recognized in a manner still more explicit. 
 In Colville v. Parker, fCro. Jac. 158.) which 
 was an information in the King's Bench 
 against fraudulent conveyances, the case of 
 one Woodie was cited as ha\ing been hefore 
 that time decided, where it was held that a 
 voluntary conveyance was void against a suh- 
 .se<juent purchaser without notice, "because," 
 as it was said, "it was a voluntary convey- 
 ance at first, and shall he deemed fraudulent 
 from the beginning." 
 
 The troubled and disastrous reign of the 
 tirst Charles furnishes no case or i)recedent, 
 so far as my re.searches have extended, hear- 
 ing upon this question. In that period of 
 civil strife cases involving this (piestion ei- 
 ther did not ari.se, or the history and record 
 of them have been swept away and lost 
 amidst the convulsions and (onfusion of the 
 times. Nor does the judicial iiistory of 
 England under the Commonwealth, and the 
 protectorate of Cromwell, throw any ligiit 
 upon this subject. 
 
 The succeeding reign of Charles the Second 
 furnishes several cases. The cases of this 
 reign are much relied on by those who have 
 advocated the opposite doctrine to that which 
 I have adopted. At that period it was 
 
 *46 
 thought necessary that the (iucs*tion of fraud 
 should be submitted to a jury. And in 
 (Jarth v. Mois, (Keb. 4N(i, l."i <'ar. II.,) it was 
 held by the Court, in submitting "evidence 
 to a jury on this <iuestion. that a voluntary 
 conveyance executctl, is not fraudulent be- 
 
 cause voluntary, but is great evidence of 
 fraud as against an after ci»nveyance made 
 bona fide, because the statute avoids such 
 deeds as are bona tide and on consiileration, 
 if made ea intentione to defraud purchasers. 
 And therefore this fraud must be found iiy a 
 jury." 1 have extracted the whole case from 
 the report. It is but a nisi prius decision at 
 best, and very meagerly and unsatisfactorily 
 reported. Let it go for what it is worth. 
 
 Jenkins v. Kemeshe. 1 I>ev. 150, (in King's 
 Bench, 16 Car. II.,) is also a cjise which has 
 been much relied on by those who advocati» 
 a contrary doctrine. But on an examination 
 of thar ca.se it will be found not to be in 
 point. Sir Nicholas Kemeshe was tenant for 
 life in certain messuages: remaindi-r to his 
 st»n Charles in tail general, with remainder 
 over. They, (Sir Nicholas and his son 
 Charles,) on the marriage of Charles with 
 Blanche, his first wife, and in consideration 
 of the marriage and a marriage pi>rtiou of 
 fL'.."»00, levy a fine and recovery, to the use 
 of Sir Nicholas for life, remainder to Charles 
 and the heirs of his lx)dy begotten on 
 Blanche, remainder to the heirs of the body 
 of Charles generally, with power on the iiart 
 of Sir Nicholas to charge all and singular the 
 premises with the payment of £2.1XH>, by way 
 of mortgage. Upon which Sir Nicholas and 
 Charles, without reciting the power, convey 
 a portion of the premises to Jenkins, by way 
 of mortgage. Sir Nicht)las dies. I'.lanche 
 also dies, without issue. And Charles mar- 
 ries a second wife, by whom he has issue the 
 defendant. And the money not being paid, 
 the plaintiff, the son of Jenkins, brings eject- 
 ment. I'pon the trial two questions arose. 
 The first was as to the execution of the pow- 
 er, and whether it was legal and valid. .\nd 
 the second (piestion was, whether the consid- 
 eration of the setilement, which was held to 
 be valuable, extended to the issue of the 
 second marriage. It was decided that it did. 
 The defendant was considereil as one hold- 
 
 ♦47 
 ing untler a purchase for valu*al le consider- 
 ation, and the judgment of the Court was for 
 him. 
 
 In Lavender v. Blackstone, ili Lev. 14U. -7 
 Car. II.,) a settlement after marriage was 
 held to be purely voluntary, and void against 
 a subseiiuent mortgagee. 
 
 In Troilgers v. Langham. (1 Sid. !•".;!. i cited 
 by EUenborough in ottley v. Manning, a 
 father conveyed an estate to trustees for the 
 benefit of his daughter till her marriage, and 
 after her marriage to raise a portion for her. 
 The conveyance to trustees for th" btnefit of 
 the daturhter was perfectly free from fraud 
 in fact. Vet it was held to be a voluntary 
 conveyance in its «trigin, and void by the 
 statute li7 Eliz. against purchasers for val- 
 uable ct»nsideration. 
 
 In Jones v. I'urefoy, (1 Vern. 4<I. A. I). 
 l(jsi:,) a voluntary settlement, thou;^li unim-
 
 *47 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 penciled for actual fraud, was vacated in be- 
 half of a subsequent mortgagee. 
 
 White V. Hussey, was decided in 1690 
 (Prec. in Ch. 14.) Here the question arose 
 directly between the person claiming under 
 the voluntary settlement, (who was the set- 
 tler's mother,) and the subsequent purchaser, 
 who claimed in the character of a mortgagee 
 for valuable consideration without notice. 
 "Upon hearing the cause," says the reporter, 
 (Thos. Finde, Esq.) "the Court unanimously 
 decreed for the plaintiff, (the mortgagee,) 
 though it was strongly insisted by the de- 
 fendants that they could not do so without 
 directing a trial at law, whether the settle- 
 ment was fraudulent or not; for that fraud 
 or not, was triable only by a jury, especially 
 where the fraud, if any, was only from its 
 being voluntary. But the commissioners of 
 the great seal were all of the opinion that 
 they might decree a conveyance to be fraud- 
 ulent, merely for being voluntary. And so 
 they did in this case." 
 
 In Sir Ralph Bovey's case. (Vent. 193,) 
 Lord Hale did say "that though every volun- 
 tary conveyance carries an evidence of fraud, 
 yet it is not upon that account only always 
 to be reckoned fraudulent, or to be avoided 
 by a subsequent purchaser for a valuable 
 consideration." lie had said in Lavender v. 
 Blackstone, already cited, that a voluntary 
 
 *48 
 
 conveyance is only prima *facie evidence of 
 fraud. His opinions, as quoted in both of 
 these cases, are dicta merely. For in Laven- 
 der V. Blackstone, the voluntary settlement, 
 though free from actual fraud, was set aside 
 in favor of the assignee of the purchaser for 
 valuable consideration. And in Sir Ralph 
 Bovey's case, the settlement was not volun- 
 tary, but was founded upon the consideration 
 of marriage, which is always regarded as 
 valuable, and it was held valid against the 
 subsequent grant to Sir Ralph Bovey, found- 
 ed upon a money consideration. 
 
 In 1726, in (Jardener v. Painter, (Cas. 
 Temp. King, 65,) Lord King said it could 
 iiever be a question whether a voluntary set- 
 tlement be good against purchasers. 
 
 Two years later, in Tonkins v. Ennis, 
 (Mich. T. 1727, 1 Eq. Cas. Abr. 334,) it was 
 adjudged by the whole Court that "a pur- 
 chaser for valuable consideration shall hold 
 or take place against a prior voluntary settle- 
 ment, though he had express notice thereof 
 at the time; such voluntary settlement, by 
 the 27 of Eliz., being made void against a 
 purchaser, with or without notice." 
 
 An early distinction was taken by the I']ng- 
 lish Judges in their construction of the 13th 
 Eliz., (the object of which was to protect the 
 rights of sulisisting creditors,) and the 27tb 
 Eliz., (the design of which was to protect the 
 rights of future or subsequent purchasers.) 
 
 Russell V. Hammond, (1 Atk. 13, A. D. 
 1738,) was a case arising under the 13th 
 
 ?.0 
 
 Eliz., and was between creditors and the 
 parties claiming under a prior voluntary set- 
 tlement. There was no proof of actual 
 fraud ; and it was held that, a settlement 
 being voluntary, is not for that reason fraud- 
 ulent against creditors under the 13th Eliz., 
 but evidence of fraud only: and that it was 
 not fraudulent where the person making it 
 was not indebted at the time. 
 
 In Walker v. Burrows, (1 Atk. 93, A. D. 
 1745,) Lord Hard wick, who also decided the 
 case last cited, observed, "it has been said 
 that all voluntary settlements are void 
 against creditors, equally the same as they 
 are against subsequent purchasers under the 
 27th Eliz. But this will not hold ; for there 
 
 *49 
 
 is always *a distinction upon the two stat- 
 utes. 'Tis necessary on the 13th Eliz. to 
 prove that at the making of the settlement 
 the person conveying was indebted at the 
 time, or immediately after the execution of 
 the deed, &c. But upon the statute 27 Eliz. 
 which relates to purchasers, there indeed a 
 settlement is clearly void if voluntary — that 
 is, not for valuable consideration. And the 
 subsequent purchaser shall prevail to set 
 aside such settlement. But this can only be 
 applied to subseipient purchasers, and there- 
 fore there is a plain distinction between the 
 two statutes." 
 
 I pause liere for the purpose of making a 
 passing comment on these decisions of Lord 
 Hardwick, and of developing more fully the 
 distinction he has drawn in the construction 
 of these two statutes. The 13th Eliz. being 
 directed again.st the perpetration of frauds 
 upon subsisting creditors, it is obvious that 
 its provisions do not apply where he is not 
 indebted at the time, or immediately after- 
 wards; which the Courts have, by a liberal 
 construction, decided to be the same as ex- 
 isting indebtedness. But the 27th Eliz. is for 
 the relief not of purchasers whose titles or 
 claims were prior to the voluntary settle- 
 ment, for these need no protection ; but for 
 the relief of subsequent purchasers for val- 
 uable consideration, (and as the American 
 cases and some of the later English author- 
 ities say,) vathout notice. A party making 
 a voluntary settlement, who is indebted at 
 the time, may yet commit no actual fraud, 
 and never contemplate any fraudulent act 
 whatever. But in every instance of a subse- 
 quent sale to a purchaser for valuable con- 
 sideration without notice, there is a gross and 
 actual fraud perpetrated by the vender upon 
 the vendee. And policy as well as authority 
 warrants the construction that makes this 
 positive fraud relate back to the time of the 
 prior voluntary settlement, and taints it with 
 an inq)lied premeditated and fraudulent in- 
 tent. There is another distinction between 
 the case of a creditor, and that of a pur- 
 chaser, which entitles the latter to greater 
 consideration. The creditor gives his credit
 
 FOUTMAX V. I'ENDKRGKASS 
 
 upon the faith of the whole estate of his 
 debtor; while the purchaser and inortiiaiiee 
 (who throufrh the whole course of the Eng- 
 lish adjudications on this subject is ret,'ard- 
 
 ♦50 
 
 ed as a pur*chaser,) looks only to the specific 
 property purchased or niortfraired. 
 
 I resume my review of the En^ilish cases. 
 And I will here go back a few years for the 
 purpose of noticing the case of Oxley v. Lee, 
 decided A. D. IT.iG, and reported in a note 
 in 1 Atk. 025. In this case there was a con- 
 veyance to trustees, for the consideration of 
 love and affection, to the use of the donor's 
 daughter. The plaintiff, Oxley, afterwards 
 purchased the premises for valuaide consid- 
 eration. The decree was, that the trustee 
 should convey the legal estate to the pur- 
 chaser, and that the deed of settlement 
 should be delivered up. 
 
 About this time (namely, in 17o7,) the orig- 
 inal text of the "'Treatise of Eciuity," of which 
 Fonblanque is the editor, was published. 
 Tliis is confesse<lly a work of great author- 
 ity. In this treatise the doctrines held by 
 Ixird Ilardwick as to the rights of purchas- 
 ers under tlie I'Tth of Eliz. are explicitly as- 
 serted. (1 Fonb. 267.) t^tzer v. Fitzer, (2 
 Atk. 512, A. D. 1742,) was a case in which 
 Fitzer, the defendant, after a separation from 
 his wife, the complainant, made a voluntary 
 settlement upon her and his datighter, out 
 of property which he had ac(iuired by his 
 wife. The husband afterwards became a 
 bankrupt, and assigned to the other defend- 
 ant, Steiihens, all his estate, real and per- 
 sonal, including the property settled upon his 
 wife and daughter. Stephens, by the assign- 
 ment to him, combined the character of cred- 
 itor and purchaser. The Lord Chancellor 
 (Ilardwick) said to counsel, during the prog- 
 ress of the cause, "have you any Instance 
 of its being held, in this Court, that a con- 
 veyance from a husband to his wife, with- 
 out any pecuniary consideration moving from 
 the wife, has been held to be good against 
 creditors?"' The Attorney (General, who ap- 
 pealed for the complainant, admitted that 
 natural love and affection would not be a 
 consideration, but suggested that there was 
 a deed of separation, and the liability of the 
 husband for the maintenance of the wife and 
 daughter would be a sulMcient consideration. 
 Nevertheless the Court decreed the settle- 
 ment void to the extent of the claim of the 
 defendant, Stephens. 
 
 *51 
 
 *Taylor v. Jones, (2 Atk. 000, A. D. 1743.) 
 before the Master of the Rolls, was a con- 
 test between the creditors of the husband, 
 Jones, and the persons claiming under a vol- 
 untary settlement made by him ui)on his wife 
 and children. There was no i)retence of ac- 
 tual fraud. "The first question," says the 
 Master of the Kolls, "is, wht-ther this settle- 
 ment, made in trust for the wife and chil- 
 
 dren, is fraudulent In general, as it stands 
 single and independent of the plaintiffs, the 
 creditors. It has been insisted on, for the 
 wife and children, that this settlement is for 
 a good consideration; nay, looked upon very 
 often as a valuaide consideration, since they 
 are, in some res|tects, esteemed creditors in 
 regard to the father. There is no doubt but 
 that It is a valuable consideration as against 
 a father, even after marriage, and even 
 against a voluntary conveyance. But I con- 
 sider it a standing rule, as to creditors for a 
 valuable consideration, that such a settle- 
 ment is always looked ui»on as fraudulent," 
 &c. And accordingly it was so decreed. 
 
 In White v. Sanson, (.3 Atk. 409, A. D. 
 1710,) which was also a case before Lord 
 Ilardwick, the husband and wife had joined 
 in a settlement out of the wife's estate not 
 reduced to possession. This was held not to 
 be fraudulent. "For nothing," .said his lord- 
 ship, "could be more just than for the hus- 
 band to provide for the wife and children out 
 of her own estate." He observed that this 
 "at law would not be deemed fraudulent 
 against creditors; nay, even against a subse- 
 quent purchaser, which is stronger; because 
 I hardly know an instance where a volun- 
 tary conveyance has not been held fraudu- 
 lent against a sul)sequent purchaser." 
 
 In Lord Townshend v. Windham, (2 Ves. 
 Sr. 10,) Lord Ilardwick said: "On the 27 of 
 Eliz., every vohmtary conveyance made, 
 where afterwards there is a subseipient con- 
 veyance for valuable consideration, though 
 no fraud in that voluntary conveyance, nor 
 the person making it at all in debt ; yet the 
 determinations are that such mere voluntary 
 Conveyance is void in law by the subsequent 
 purchase for valuable consideration." 
 
 In Hamilton v. Mitton, (2 Wilson. 35S, 
 
 *52 
 
 note, (> Geo. 3,) Lord *Chi(>f J. Wilmot said, 
 "the Stat. 27 Eliz. was made in favor of sub- 
 sequent purchasers paying a valual)le con- 
 sideration, as against persons whose title is 
 not supported by such ctnisideration." 
 
 Goodright v. Moses, (2 William lilackst one's 
 Hep. lOiy, 15 Geo. 3,) was the case of a vol- 
 untary settlement and a subsequent sale for 
 a valuable consideration. Lord I'hief J. De 
 Grey said, "the deed of 1747 was only a vol- 
 untary conveyance within the true meaning 
 of the Stat. 27th Eliz., being foundtMi upon a 
 good and not upon a valuable consideration; 
 and therefore c-annot be set up against a 
 bona lide purchaser." 
 
 The case of Taylor v. Still is cited by Sug- 
 den (p. 4S3) as having i»een decided in 1703. 
 In this case Lord Xorthington is said to have 
 held it be.vond dispute, that a voluntary set- 
 tlement should be set aside in favor of a sub- 
 sequent purchaser for valuable considera- 
 tion, even with notice. And Rathurst, J., said 
 he knew Lord Ilardwick had so decided in 
 twenty instances. 
 
 21
 
 *52 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 Tn Chapman v. Emery, (1 Cowp. 278, A. D. 
 1775,) one Richard Emery after marriage 
 made a settlement of the premises in ques- 
 tion upon liimself for life, remainder to his 
 wife, remainder to their issue in tail. And 
 three years after\A-ai'ds he mortgaged the same 
 premises to secure the payment of a hona 
 fide debt then contracted. There was some 
 contradictory evidence as to wlietlier the 
 moi'tgagee liad notice. There was no allega- 
 tion of actual fraud in the voluntary settle- 
 ment. Lord Mansfield held that the mort- 
 gagee was a purchaser, and that the settle- 
 ment was void as to him. lie went further, 
 and held that notice was not material. 
 
 I have thus presented a careful and chron- 
 ological analysis of all the English cases and 
 authorities that were accessible to me, for 
 the purpose of shewing what a slight founda- 
 tion exists for the assumption that, at the 
 period of the separation of the North Amer- 
 ican colonies from the motlier country, tlie 
 question that I have been discussing was not 
 settled in England, and that diversity of 
 opinion prevailed in that country on the 
 question. I think I may .safely say that at 
 that period the right of a purchaser for a 
 valuable consideration to set aside a mere 
 
 *53 
 
 volun*tary settlement or conveyance, was as 
 well settled as any other principle of English 
 jurisprudence whatever ; and nothing but 
 what were there c<»nsidered the most apocry- 
 phal cases (and those very few,) could be ad- 
 duced in support of the contrary doctrine. 
 Chief Justice Marshall, in Cathcart v. Robin- 
 son, (5 Peters's R. 204 [8 L. Ed. 120], l has lent 
 his high reputation and commanding influ- 
 ence to the i)romulgation of this error. He 
 felt himself at liberty to adopt the dicta of 
 Lord Hale, which had been uttered more 
 than a century before the revolutionary war, 
 that a voluntary conveyance as against a 
 subsequent purchaser was to be regarded us 
 only prima facie fraudulent. If this rule 
 v.-ere ai^iilied to Footman v. I'endergrass, the 
 deed should be set aside. For if the onus is 
 upon Footman, to shew that the settlement 
 is not fraudulent, he has failed most signal- 
 ly ; for to my judgment the circumstances of 
 the case rather vend to strengthen the pre- 
 sumption of law. 
 
 After all, it is a very great fallacy to re- 
 fer to the period of ti;e American Revolution 
 for the purpose of deteriniiiing whether any 
 principle of the English Chancery system is 
 of force. At all events, it is not applicable 
 as a criterion in South Carolina, where the 
 English Chancery system was adoi>ted long 
 before that time by an Act of our Provincial 
 Legislature. 
 
 I will now proceed with my review of the 
 English decisions. In Cadogan v. Kennet, 
 (2 Cowp. 4.S2,) A. I>. 1776, which was a case 
 of creditors arising under the l.Sth Eliz., 
 and not under the 27 E!iz., Lord Mansfield 
 22 
 
 decided, that a fair voluntary conveyance 
 is good again.st creditors. He says the Stat- 
 utes of Eliz. "cannot receive too liberal a 
 construction, or be too much extended in 
 suppression of fraud," Traveling out of 
 the issue before him, he does say in this case 
 that "the 27 of Eliz. does not go to voluntary 
 conveyances, merely for being voluntary, but 
 to such as are fraudulent." 
 
 And in Watson v. Routledge. (2 Cowp. 7().").) 
 A. D. 1777, he said something to the same 
 effect. But in this case, the question now at 
 issue did not arise. The prior voluntary con- 
 veyance was for love and affection to a neph- 
 
 *54 
 
 ew, a son of the grantor's *sister. The sec- 
 ond conveyance was to another nephew, in 
 consideration of £200, f(n- a property proved 
 to be worth £2000. This was considered no 
 purchase at all, but a gift. It was considered 
 a fraudulent artifice and combination, on 
 the part of tlie grantor and second grantee, 
 to defeat the first; and so it was adjudged. 
 
 In the dicta, which Lord Mansfield sufl'ered 
 to fall from him in the two last mentioned 
 cases, he forgot that he had himself decided 
 to the contrary. In the prior case of Emery 
 V. Chapman. And in Hill v. Bishop of Exe- 
 ter, (2 Taunt. 82,) decided by Lord Mansfield 
 in 1809, we find him declaring that as "to 
 the general doctrine that voluntary .settle- 
 ments, however reasonable, are void against 
 a subsecjuent purchaser in consideration of 
 money, there can be no doubt, for very strong 
 cases liave decided, that if a man after mar- 
 riage make the most prudent settlement on 
 his wife and chiUlren, such a deed as every 
 wise man must approve, if the father is dis- 
 honest enough to sell it afterwards for mon- 
 ey, he may." I tliink after this, his dictum 
 in the intermediate case of Cadogan v. Ken- 
 net, is entitled to but little weight. Indeed, 
 he himself intimates, that the latter case 
 was not considered in reference to the author- 
 ities that might have been cited. He says, 
 that in the argument, he had expected an 
 authority, but did not get it. And in Watson 
 V. Routledge, lie supported his opinion by 
 cases that are not considered as cases of 
 voluntary conveyances, but as cases in which 
 the settlements were supported by valuable 
 consideration, such as the consideration of 
 marriage, i^c. 
 
 In Evelyn v. Templar, (2 Bro. C. C. 14s.) 
 A. D. 1787. it was decided by Lord Thurlow, 
 that a prior voluntary settlement by a hus- 
 band after marriage, though not indebted at 
 the time, was void against a subsequent pur- 
 chaser, though with notice. 
 
 In Bothell v. :\rartyr, (1 B. & I'. N. R. .".32.) 
 A. I). 1805, it was held by Sir James Mans- 
 field, "that it cannot now be held, that a 
 prior voluntary conveyance shall defeat a 
 <'onveyance to a purchaser for valuable con- 
 sideration, without overturning the settled 
 and decided law." He regretted that a con-
 
 FOOTMAX V. PEXDEIIGRASS 
 
 *hl 
 
 *55 
 
 stnicrioii had *i)revailc(l. whi.-h ronflerefl no- 
 tico to tlu' suIisiMiuciit iiiir<liiiscr iiniiiatcriiil. 
 Tliis, I will reiuark, is the only part <»f tlie 
 constructioii of the L'7 of Kliz.. whirh has 
 Leeii regretted liy the Kii^lish JiKl^es. And 
 in the American eases, this principle of the 
 Kiiu'lisli decisions, lias not been followed, hut 
 notice has heen considered as destroyini,' tlie 
 riirht of a siihse(|iient purchaser to have a 
 prior volnntary settlement vacated in his 
 iiehalf. 
 
 In IMIN. the elalioi'.itcly considered case of 
 Ottey V. Mannimr. (!» East. ".!).) was decided 
 l>y Lord KllenborouKh. in which it was held, 
 that a voluntary .settlement of lands, in con- 
 .sideration of natural love and affection, is 
 \(>id against a subsequent purchaser for val- 
 uable c<insideration. though with notice of 
 the prior settlement before all the purchase 
 money was paid, or the titles executed ; and 
 thouj-'h tile settler had other property at the 
 time, and was not indebted: and though there 
 was no actual fraud in tlie transaction. I 
 cannot resist the temptation of quoting the 
 triumphant vindication by Lord Ellenbor- 
 ough. of the construction of the L'Tth Kliz.. 
 which the English Judges have adopted. lie 
 observes that "the Judges might very well 
 appr(>hend. that suhseiiuent purchasers might 
 be continually defrauded by such secret con- 
 veyances, if they should lie held good; and 
 that when the question was between one who 
 had paid a valuable consideration for an es- 
 tate, and another who had paid nothing, it 
 was a just presumption of law, that such 
 voluntary conveyance, founded only in con- 
 sideration of affection and regard, if coupled 
 with a subseipient .sale, was meant to de- 
 fraud those, who should afterwards become 
 l>urchasers for valuable consideration; and 
 tiiat a different construction would have .so 
 narrowed tlie operation of the Statute, as to 
 leave the persons meant to be protected by 
 it. subject to almost all the mischiefs in- 
 tended to be remedied. And it is certainly 
 more fit upon the whole, that a voluntar.v 
 grantee should be disappointed, than that a 
 fair iiurchaser should be defeated." The 
 <ase of Otley v. Manning has placed this 
 rule of construction upon immutable foiuida- 
 tiniis. I here close my review of the English 
 cases. T,, trace them fuithei- would be alto- 
 gether a work of supererogal ion. 
 
 settlement, but made for a valuable consid- 
 eration, and to a purchaser chargeable only 
 with notice in law. The (piestion arising on 
 this first point, is dctinitively .settled in Eng- 
 i land by determinations of a recent date, in the 
 I four great Courts at Westminster. And it is 
 imiiossible for me not to feel all the respect, 
 which is justly due to decisions of such 
 great weight and authority." "It has been 
 suggested." continues he. "that this is a prin- 
 ciple settled in England since our revolution; 
 but it appears to me. that the late ca.ses have 
 declared no new doctrine, and have only fol- 
 h)wed the rule as they fcnind it long before 
 settled, by a series of juflicial decisions of 
 too much authority to be then shaken." In 
 this case, the purchaser had heard that the 
 vendor had made .some provision for his 
 daughter of the (ireenwich street property, 
 which was the subject of the purclia.se. This 
 the learned Chancellor construed to be im- 
 plied notice; and decided, that he would not 
 bold the purchaser affected with the impli.-d 
 notice. But he intimates if the notice had 
 been actual, he would not have been entitled 
 to claim against tlie prior voluntary convey- 
 ance. The voluntary deed was set aside in 
 favor of the subseiiuent purchaser. 
 
 I have already alluded to the case of Cath- 
 cart V. Robinson, (5 Peters, 204 [S L. Ed. 
 120].) Chief Justice Marshall .says, "'tho 
 rule, which has been uniformly observed by 
 this Court, in construing statutes, is to adopt 
 the construction made by the Courts of the 
 couiitry by whose Legislature the Statute 
 was enacted. This rule may lie su.sceptible 
 of some modifications, when applied to lUit- 
 ish statutes, which are adopted in any of 
 *57 
 
 *56 
 
 *I shall notice only two of the Ameri<'an de- 
 cisions upon this subject out of South Caro- 
 lina. The first of these to which I invite 
 attention, is that of Sterry v. Arden. (1 
 Johns. Ch. 2(51.) Chancellor Kent, than 
 whom no greater name has ever adorned the 
 judbial station in America, thus sums uii the 
 • luestion: " Here then," says he, "is the case 
 of a fair volnntary conveyance, made by a 
 father to his daughter, he not appearing to 
 be indebted at the time, and a sul)sc(p^ent 
 sale made by him with intent to defeat that 
 
 these States, By *adopting them, they be- 
 come as entirely our own. as if thev had 
 been enacted by the Legislature of the State. 
 The received construction in England, at 
 the time they are admitted to operate in this 
 country, indeed, to the time of our .separa- 
 tion from the British empire, may very prop- 
 erly be considered as accompanying the stat- 
 utes themselves, and as forming an integral 
 part of them." It would be arrogant in me 
 to endeavor to add any thing to the force of 
 the.se obs(>rvations. on that part of the sub- 
 je<'t. The Chief Justice then proceeds to re- 
 mark, "at the commencement of the Amer- 
 ican revolution, the construction of the Stat. 
 27 of Eliz. seems not to be settled." The 
 error of this conclusion. I think, has been 
 sufiiciently demonstrated in the foregoing 
 review of the British decisions. 
 
 I pass on to consider the judicial interpre- 
 tations which have been given to the 27 
 Eliz., in South Carolina. The cases bearing 
 on the ipiestion are very few. which is only 
 to be accounted for, on the supposition that 
 the law has been regarded as settled. A.s 
 far as the decisions, or any expression of 
 opinion on the iiart of the Judges, have gone, 
 
 23
 
 ^57 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 they are in the strictest conformity with the! 
 doctrine established by tlie English decisions ; 
 with this exception only, that a subsequent 
 purchaser, with notice, is not entitled to set 
 aside a prior voluntary settlement. 
 
 The case of Barrineau v. McMurray & Mc- 
 Gill, (3 Brev. 204.) presented some circum- 
 stances that might have been regarded as 
 amounting to actual fraud. It is not certain, 
 therefore, that in the view of the whole Court, 
 the decision turned upon this construction 
 of tlie Stat. 27 Eliz. But Judge Brevard, 
 after some remarks upon the facts, says, 
 "how far the deed is to be considered valid, 
 or sufficient to transfer the estate in opposi- 
 tion to the prior deed to Belsey Brown, must 
 turn on the true construction of the 27th 
 of Eliz." 
 
 He goes on in the broadest terms, to adopt 
 the construction of the English Courts. 
 This doctrine, iie observes, "has been some- 
 times doubted, in consequence of certain 
 expressions of Lord INIansfield, in Gadogan 
 v. Kennet and Watson v. Routledge. It seems 
 to me that in those cases, Lord Mansfield 
 
 *58 
 has *confounded the rights of creditors, with 
 these of purchasers ; whereas, the Statutes 
 of 13 and 27 Eliz. appear to liave different 
 objects in view. He says truly, that volun- 
 tary conveyances may be good against cred- 
 itors ; but it does not follow that they are so 
 against purcliasers. Voluntary conveyances 
 are not void, merely because they are vol- 
 untary, but because from the circumstance 
 of their being voluntary, coupled with the cir- 
 cumstance of a subseiiuent sale and convey- 
 ance, for valuable consideration, by the same 
 person who made the voluntary conveyance 
 it is to be collected and legally inferred, pur- 
 suant to the 27 of Eliz., that the voluntary 
 conveyance was fraudulent ; and because the 
 statute declares such voluntary conveyance 
 void as against such purchaser." 
 
 In Hudnal v. Wilder, (4 McC. 294 [17 Am 
 Dec. 744],) tliis question was considered, and 
 decided. I say decided; for on a careful 
 examination, I can come to no other conclu- 
 sion. It was an action of Trover, for a ne- 
 gro named Frank. And the circumstances 
 of the case were these. One Luke Norris. 
 then "the owner of the slave in question, on 
 the loth Feb., 1809, conveyed the negro, with 
 otiier real and personal property, to Hudnal, 
 the plaintiff, in trust, for the sole and sepa- 
 rate use of liis own wife for life, remainder 
 to such children of the marriage as should be 
 living at her death, remainder to himself. 
 He was much indebted at the time, a circum- 
 stance which, thougli very material as re- 
 gards tlie claims of creditors, is not very 
 material as regards the rights of a subse- 
 'juent purchaser for valuable consideration, 
 sinless an actual fraud was intended against 
 Uie rights of creditors. For the Stat. 27 
 Eliz., by the most uniform construction, 
 •nakes the prior voluntary settlement void 
 2i 
 
 as to the subsequent purchaser, whether the 
 donor be indebted or not at tlie time of the 
 gift. On the 17th iNIarch, 1818, Norris, on the 
 point of removing to tlie west, sold Frank to 
 Teasdale, the defendant's testator, for .$900, 
 which was paid in cash. There was some 
 evidence to the effect that Teasdale had no- 
 tice of the prior voluntary settlement; but it 
 was not made clear that he had such notice, 
 before he had completed the sale, and paid tho 
 
 *59 
 purchase money. *The action was brought 
 by Hudnal, the trustee, against Wilder, 
 Teasdale's executor. Thus the issue was di- 
 rectly made between the party claiming un- 
 der the prior voluntary conveyance, and one 
 claiming under a subsequent purchaser, for 
 valuable consideration made nine years after- 
 wards. It is difhcult to conceive a case in 
 which the question under discussion could in 
 a more direct manner be presented for the 
 judgment of the Court, than Hudnal v. Wild- 
 er. Upon the question, whether notice would 
 affect the claim of the subsequent iturchaser, 
 the Court was with the plaintiff; thus mod- 
 ifying to this extent the English decisions. 
 They adopted, in this particular, a construc- 
 tion which the English Judges liave regretted 
 iiad not been adopted in England from the 
 first, but which they found liad been so well 
 established, that they did not consider them- 
 selves at liberty to modify it. But in other 
 respects, and particularly upon the question 
 now before this Court, the decision in Hud- 
 nal V. Wilder conformed strictly with the 
 English decisions. The verdict was for the 
 defendant. The plaintiff, on the hearing be- 
 fore the Court of Appeals, had the benefit of 
 the judgment of that Court, as to the effect 
 of notice on the rights of the subseijuent 
 purchaser. The evidence on that point not 
 being clear, and the law having been present- 
 ed to the jury in accordance witli the opinion 
 of the Court of Appeals, they refused to dis- 
 turb the verdict on that ground. The other 
 questions before the Court were, first, wheth- 
 er the Stat. 27 Eliz. embraced in its purview 
 conveyances of personal property, which was 
 decided in the affirmative. And the great and 
 principal question of the case was that which 
 I am now considering. Hear Judge Nott, the 
 organ of the Court, on this subject. "It has 
 already been remarked," he says, "that the 
 English decisions under the 27 Eliz. lia\e 
 gone the whole length of declaring that a 
 subsequent sale to a bona fide purchaser, 
 even with notice, shall prevail against a prior 
 voluntary deed. These decisions, I shall 
 undertake by and by to shew, cannot be sup- 
 ported by any just construction of the statute. 
 But so far as they have gone to declare, that 
 a subsequent sale to a bona fide purchaser 
 
 *60 
 without notice, shall *itself be evidence of 
 fraud to avoid a voluntary deed, I do not 
 know that they have ever been questione'i. 
 And we have been so much iu the habit of
 
 iiolmp:s v. holmes 
 
 •62 
 
 resiH'C'tiiiff the Eni^lish dodsions as authority, f 
 on all their statutes which have heeu made 
 of force here, that I do not recollect that we 
 have ventured to put a different construc- 
 tion upon one. which has come down to us 
 throutrli a train of decisions, stamped with 
 the approbation of tlie able judges of that 
 count rv." The defendant was pernutted to 
 retain his verdict upon this construction ; a 
 construction which, I have siiewn. was adopt- 
 ed at a period contenii)oraneous with the en- 
 actment of the law, and which has prevailed 
 through every succeediiiR age and generation, 
 in England, down to the present times, with 
 as little variation as can be challenged for 
 any otiier important itrinciple of the Enjilish 
 jurisprudence. And I have also shewn it to 
 he a construction which has been adopted in 
 South Carolina, whenever the <piestion has 
 been mooted in our Courts ; and once directly 
 in the way of decision, by an able body of 
 Judges, sitting as a Court of Appeals in the 
 last resort, in a case where the rights of the 
 parties turned directly upon that construc- 
 tion. If I am to have any respect for the 
 authority of English decisions, upon the Eng- 
 lish statutes, (made of force by a solemn Act 
 of our Legislature,) transmitted to us in an 
 unbroken series through nearly three cen- 
 turies : if I am to have any respect for the 
 decisions of our own Courts, solemnly atfirm- 
 ing the English interpretations : if I am not 
 to cut loose from the control of all prece- 
 dents, and the exposition of remote times in 
 regard to an old statute; expositions made 
 by abler and wiser judges than myself, then 
 I am not permitted to adopt any other con- 
 struction of the 27 Riz., than that I have 
 contended for. 
 
 Appeals dismissed. 
 
 3 Rich. Eq. *6I 
 
 *.MARY T. HOLMES .t al. v. ELIZABETH 
 HOLMES. 
 
 (Ci)luniliia. Nov. and Dec. Term, ISoO.) 
 
 \Eriiiitn C=4L'.] 
 
 <Jnt'i\ : ("an a purchase, at a sale bv the 
 Master imdci- a decree bo set aside for fraud. 
 ■ ou riiU' against the purdiaser to .sliow cause? 
 or must th.. prmeoding be l.y 1)111 V If it can be 
 set aside on rule, the case, it seems, must be 
 tried and afljudsed ou the facts admitted in the 
 answer to the rule. 
 
 [Ed. Note.— Cited in Orr v. Orr, 7 S. C. 383. 
 
 For other cases, see Enuity, Cent. Dig. §§ 
 lift, 120: Dec. Dig. <S=42.1 ^ 
 
 [■/iidifial Hales (gzslO.l 
 
 To render a purchase, at a public sale, un- 
 der a decree in Chancery, void because the bid- 
 duigs were joint, or there was a partnershii) 
 among the bidders, it must apiiear tliat there 
 was a fraudulent intent to depress and chill 
 the sale, to obtain the i)roperty at an under- 
 value, or to obtain other undue or unconscien- 
 tious advantages. 
 
 [Va]. Note.— For other cases, see .Tndicial 
 Sales. Cent. Dig. § 43 ; Dec. Dig. <®==>19.] 
 
 [Juflifinl fi'alcK C=10.1 
 
 I'er.sons may lawfully unite for the purpose 
 of making a 1)1(1 among themselves, where nei- 
 ther is able to purchase, or desires to own, the 
 whole property. 
 
 [Ed. Note. — For other cases, see Judicial 
 Sales, Cent. Dig. § 43; Dec. Dig. <g=>U>.] 
 
 Before Johnston, Ch. at Edgefield, June, 
 1S50. 
 
 This case will be sulHciently understood 
 from the opinion delivered in the Court 
 of Appeals. 
 
 Carroll, (irillin, for ai)i)ellaut3. 
 Wardlaw, contra. 
 
 delivered the opinion of 
 
 dai{(;ax, cii. 
 
 the Court. 
 
 By a decree of the Court of Eciuity, the 
 real e.state of the late \yilliam Holmes was 
 sold at Edgefield Court House, on the first 
 .^londay in December, 1S4!», l)y the Conunl.s- 
 sioner in Equity. At this sale, one Tandy 
 Burkhalter became the purchaser of said 
 real estate, at the price of $5.50 per acre, 
 he being, at that price, the highest and last 
 bidder. Burkhalter having complied with 
 the terms of the sale, the Commissioner ex- 
 ecuted to him a conveyance for the land. 
 
 This was a rule against the purchaser, to 
 shew cau.se why the sale should not be va- 
 cated, and the deed of the Commissioner in 
 l-jpiity to him set aside, "on the ground of 
 an unlawful agreement, between the said 
 Burkhalter and A. B. Kilcrease. not to hid 
 against each other for said laud at said 
 sale; which agreement was carried out, and 
 whereby the .said sale of .said land was great- 
 ly affected, to the serious injury of the es- 
 tate of the said William Holmes, deceased." 
 
 The rule was supported by the affidavit 
 *62 
 of Kilcrease. who *stated that the lands of 
 the estate of William Holmes adjoined the 
 lands of both him.self and Tandy Burkhalt- 
 er; that they each desired a portion of the 
 lands about to be sold; that they had a 
 conference upon the subject; and the re- 
 sult was, an agreement not to bid against 
 each other at the .sale; and that they fur- 
 ther agreed on the nmnner in which the 
 said real estate should be divided between 
 them, if bought. The deponent further stat- 
 ed, that he attended the sale but made no 
 bid, and that, if he had been the bidder, he 
 would have given seven dollars per acre, 
 rather than the land should have been 
 bought by any other person. He further 
 stated, that both he and Burkhalter were 
 able to have bought and paid for the whole 
 of the land. 
 
 From the affidavit of J. B. Talburt, it ap- 
 pears that Burkhalter, after the sale, re- 
 fused to let Kilcrease have the part of the 
 land he wanted, except at the price of .$12 
 
 <g=5For other cases see same topic and KEY-NUMBER ia all Key-Numbered Digests and Indexes 
 
 25
 
 '02 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 per acre. Burklialter stated to the deponent, ] 
 that he had acted wrong in not telling Kil- ! 
 crease on the day of sale, that if he, Kil- 
 crease, wanted any part of the land he must 
 be the highest ludder. 
 
 The answer of Bnrldialter to the rule denies 
 all the material allegations set forth in the 
 affidavit of Kilcrease, and especially denies 
 all partnership, or combination, with Kil- 
 crease in the purchase. He admits they 
 had a conversation about the land before the 
 sale ; that Kilcrease asked him if he intended 
 to bid for the land, and that, on being answer- 
 ed affirmatively, Kilcrease said he wanted a 
 portion, which he pointed out, and spoke of 
 his wish to have a road through it to his 
 plantation. To this Burkhalter replied, "if I 
 buy the land, I will not hinder you from a 
 road, and I will cut you off a piece." This, 
 he says, was the whole substance of the 
 conversation, and he denies having agreed 
 to sell Kilcrease any particular quantity of 
 the land in the event of his buying it, or 
 at any stipulated price. 
 
 Upon this state of facts, the rule came on 
 for trial. The Chancellor who heard the 
 cause ordered the rule to be discharged, and 
 confirmed the sale ; the discharge of the 
 rule to operate no prejudice to the parties in 
 filing a bill. 
 
 From this order, an appeal has been tak- 
 *63 
 en. and notice given *of a motion to be made 
 before this Court, to reverse the said order, 
 and to set aside the sale, on the groimds, 
 
 "1st. That there was an unlawful agree- 
 ment between the said Tandy Burkhalter 
 and A. B. Kilcrease, entered into before the 
 sale, not to bid against each other at said 
 sale, which agreement was carried out, 
 whereby the parties in interest were greatly 
 injured." 
 
 "2d. Because, upon the affidavits submit- 
 ted, and iipon the law, and from considera- 
 tions of public policy, the sale of the land 
 should have been set aside." 
 
 I will not undertake to say, that a cjues- 
 tion of this kind may not be raised on a rule 
 to shew cause. In Hamilton v. Hamilton, 
 (2 Rich. Eq. .355 [46 Am. Dec. 58]), the ques- 
 tion as to the validity of the sale was made 
 in this way. There, titles for the property sold 
 had not been executed by the Master. Chan- 
 cellor Harper, who tried that cause, seems 
 to have considered the case of an executory 
 contract, in reference to this point, as not 
 different from one in which titles have been 
 executed and delivered. He says "the prin- 
 ciple upon which the cases go is this ; that 
 by the falling of the auctioner's hammer, 
 and the entry of the sale by the Master in 
 his book, the contract is complete ; different 
 from the English practice, according to 
 which there is no contract till the biddings 
 are rt'ported. and the sale confirmed. With 
 us, upon the falling of the hammer, and the 
 entry of the sale, the purchaser has a right 
 
 26 
 
 to demand a title as a matter of course." 
 The Chancellor appears to have doubted his 
 authority to take cognizance of the cause in 
 this form of proceeding. For he says, "it 
 being a complete executory contract, I must 
 seek for something, which will authorize me 
 to set it aside ; and it seemed to be agreed, 
 that the motion was to be decided c*i the 
 evidence before me, as if a bill had been 
 filed for that purpose." 
 
 Upon this question, (as to the proper mode 
 of proceeding) the Court means to conclude 
 nothing at the present time. My individual 
 opinion is, that a proceeding by bill is the 
 most proper mode to bring such question, as 
 is here raised, to a hearing. Certainly, if 
 the question, as to the fairness of the sale, 
 
 *64 
 is to be *tried upon a rule, against the pur- 
 chaser, (unless the facts can be agreed on, 
 as in the case of Hamilton v. Hamilton.) 
 the case must be tried and adjudged upon 
 the facts admitted in the answer to the rule. 
 The purchaser, whether he claims under a 
 deed executed, or an executory contract 
 that is complete, has rights, which, in a dis- 
 puted state of facts, are not to be concluded 
 by the affidavits of witnesses, who liave not 
 been subjected to the ordeal of a cross-ex- 
 amination. 
 
 If this case is to be adjudged by the an- 
 swer of Buckhalter, (the purchaser) to the 
 rule which has been served upon him. there 
 is not the slightest ground for the interfer- 
 ence of this Court in setting aside the sale. 
 According to his statement, the transaction 
 wears the most innocent aspect imaginable. 
 But this Court is of opinion that, upon the 
 shewing made in the affidavit of Kilcrease, 
 the principal witness for the party moving 
 in this proceeding, there are no such facts 
 presented which, if they were uncontested, 
 would authorize the Court to vacate the sale. 
 This proceeding seems to have been institiit- 
 ed imder a misapprehension of the cases up- 
 on this subject. It is not e^^-y joint bid- 
 ding, or partner.ship among bidders, at a sale 
 under a decree in Chancery, that is corruiit 
 and fraudulent. Such joint or partnership 
 biddings may be perfectly legitimate. To 
 render them unlawful and void, there must 
 be a fraudulent intent to depress and chill 
 the sale, to obtain the property at an under 
 value, or to obtain other undue and un- 
 conscientious advantages. An estate might 
 be offered for sale, which neither of two 
 joint bidders would be able, separately, to 
 purchase. Or. it might be. that neither of 
 two joint bidders, though al)le as to jie- 
 cuniary means, would desire to purchase tlie 
 whole of the estate offered for sale ; though 
 each would be desirous to become the owner 
 of a part. Such persons, if not permitted to 
 unite in their biddings, would not enter into 
 the competition at all. To adopt so strin- 
 gent a rule as that contended for. in refer- 
 ence to sales in Chancery would, in many
 
 HULL V. HULL 
 
 *6G 
 
 instances, have the effect of dlnilnishin;,'. 
 instead of tiihancini: the prices. In tlie very 
 
 *65 
 case relied on in support *of tliis motion, 
 (Ilaniihoti V. Ilaniiiton.) it is said hy tlie 
 Cliancelhir who ch-livered the oiiinion of the 
 Court, citin>? witii approbation tlie case of 
 Smith V. Greenlee. (2 Dev. 12.S,) 'it is shewn, 
 liowever, in tliat, as in other cases, that 
 liersons may proiierly uiute for tlie purpose 
 of making a bid anionj; themselves, where no 
 one of tlie associates was able to purchase, 
 or desired to own. the entire property ex- 
 posed to sale." A fraud in a case like this, 
 as in every other case, must be judged of by 
 all the attendant circumstances. If the eo- 
 jiartnership in bidding appears, from the 
 attendant circumstances, to have been en- 
 tered into with a fraudulent intent to de- 
 I)ress and chill the sales, and to obtain un- 
 due advantages in the purchase of projjerty. 
 the sale will he vacated. If such joint bid- 
 ding has no such fraudulent intent, and is 
 bona fide, it will not have the effect of viti- 
 ating the sale. 
 
 The Court is satisfied with the Circuit de- 
 cree. It is ordered and decreed that the Cir- 
 cuit decree be afhrmed and the appeal be 
 dismissed. 
 
 JOHNSTON and DINKIX, CC. concurred. 
 Appeal dismissed. 
 
 3 Rich. Eq. 65 
 
 WILLIAM HULL and Othcr-s v. ANN HULL 
 and Others. 
 
 (Columbia. Nov. and Dec. Term, IS.jO.) 
 
 \Ej-rfutors and Administrntom <S=li7'J.] 
 
 The direction in a will, that the executor, 
 "out of the testator's estate pay oil" all hi.s just 
 debts and funeral expenses, " is some evidence, 
 that the testator intended that the persDualty — 
 the fund at the executor's dispusal— shoiihl be 
 tirst used for the payment of debts. 
 
 [Ed. Note. — For other cases, see E.xecutors and 
 Administrators. Cent. Dig. SS T71, TSl-TSS; 
 Dec. Dig. <®=>272; Wills. Cent. Dig. § 2151.] 
 
 [Executors and Administrators <©=3272.] 
 
 Where the testator, niniseif, ^'ives no direc- 
 tion on tile subject, the per.sonal estate is the 
 primary fund for the payment of debts : and, as 
 between devisees and IcKatees, the persoiuilty 
 must he exhausted in payments of dt>l)ts, befoio 
 the realty can be resorted to for that i)uri)<)se.(a) 
 
 [Ed. Note.— Cited in Farmer v. Si)eii. 11 
 Rich. Eq. 549; Richardson v. Inpleshy. l.'l liii li. 
 K(\. ni> ; Laurens v. Read, 14 Rich. Ei|. 2li."» ; 
 Kinslcr v. Holmes, 2 S. C. 4'.»4 ; McFadden v. 
 llellt-y. 28 S. C 324, 5 S. E. 812. l.'J Am. St. 
 Rep. 675. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. SS 771, 7S1-7SS ; Dec. Dig. 
 <g=>272: Wills. Cent. Dig. S 2151.] 
 
 («t The following ease, bearing iiimn the ap- 
 plicability of the personal estate, before the 
 
 ♦66 
 
 *[Ererutors and Ailiiiinistrtiior-i 0=*3.5.?.l 
 
 In estimating the value of estates in land, 
 a fee conditiunal should lie valued as hi;;li as a 
 fee simple ; espi.-eially where the donee has a 
 child living. 
 
 [Ed. .Note.— Cited in Du Pont v. Du Bos, 52 
 S. C. Append. (>0S. 
 
 For other cases, .see F^xecutors and Adminis- 
 trators. Cent. Dig. S 145U; Dec. Dig. <S=>:i5:i.) 
 
 [WiUs «S=>7SS.] 
 
 Where devises and bequests to a bastard, 
 are avoided, under the Act of 1705, for the ex- 
 cess (jver one fourth of the testator's estate, 
 the basta'il has the riuht to elect what piojierty 
 he will retain— throwing oflf the excess— or to 
 retain the whole and pay for the excess; parti- 
 tion will not be resorted to except where no 
 election is made. 
 
 [Ed. Note.— Cited in Williams v. Halford, 7o 
 S. C. 124. 53 S. E. 8,S. 
 
 For other cases, see Wills, Cent. Dig. § '2012 ; 
 Dec. Dig. (©=37.s.s.] 
 
 [This ea.se is also cited in Moore v. Hood, !> 
 Rich. Eq. 327, 70 Am. Dec. 210; Small v. 
 Small, Itj S. C. 71, as to the necessity of 
 niiikinu: heirs or devisees parties to a pro- 
 ceeding by executor or administrator for 
 sale of lands for payment of debts.] 
 
 Before Dargan, Ch., at Edgefield, June. 
 1.S49. 
 
 In this case — which came upon exceptions 
 to the Conimis.sioner's report, in obedience 
 to the order of reference made by the Court 
 of Appeals, 2 Strob. E<i. 174-105— the de- 
 cree of his Honor, tlie Circuit Chancellor, 
 is as follows: 
 
 Dargan, Ch. This case having been refer- 
 red, by the Court of Appeals, to the Commis- 
 sioner in Equity, to enipiire and report as to 
 various matters of fact, necessary to be as- 
 certained before a final adjudication of the 
 questions between the parties could be made, 
 the Coniinissiouer has, at this term, reported 
 upon all the matters submitted to him. To 
 this report, both complainants and defend- 
 ants liave excepted, and this is the form in 
 which it coiues before me for a hearing. 
 
 I will consider the defciidants's excei»tituis 
 first, as they raise questions that may. in 
 soiiu' measure, be considered as preliminary 
 
 real estate, in the payment of debts, is subjoin- 
 ed bv way of note to the above case: 
 •66 
 
 ♦E. W et al. V. F. H . 
 
 lieforc De Saussure, Ch.. at Newberry, June, 
 1810. 
 
 This bill was filed to .--et aside the sale of a 
 trait of 2.50 acres of land of the testator, sold 
 under execution against the defendant, as ad- 
 ministrator cum testamento annexo, of the es- 
 tate of the testator; and also ti> compel the 
 defendant to account for the value of another 
 tract of 138 acres, of the testator, also sold un- 
 der execution against the defendant. 
 
 The testator (lied in the latter [lart of the 
 year 1S04. leaving a last will and testament, by 
 which he devised the two tra<'ts of laml afore- 
 said, to the ciiinplainants, his widow and chil- 
 dren ; and, after payment of debts, the remain- 
 der of his estate to his widow and chihlrcn. 
 The executor named in the will having lefused 
 to qualify, administration with the will an- 
 nexed was ^iranted to defeiulant, who, in Feb'y, 
 
 C=>F*or other cases see same topic and KEY-NUMBER iu all Key-Numbered Digests and Inde.xes 
 
 27
 
 *G7 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 *67 
 
 *to those presented in tbe exception of tTie 
 compUvnants. The defendants's first excep- 
 tion to the report is, "because the Commis- 
 sioner has erred in charging the balance of 
 the debts, after exhausting the intestate 
 pi-operty, to the bequests to the defendants, 
 until the amount of said bequests was ex- 
 hausted, and then apportioning the balance 
 of debts still unpaid, between the devises to 
 the defendants ; whereas, it is submitted, 
 that where devises and specific legacies have 
 to abate to pay debts, there is no legal dis- 
 tinction between real and personal property, 
 and that the value of both devises and be- 
 quests should contribute rateably, without 
 regard to the distinction between real and 
 personal property." 
 
 This exception raises a very important 
 question, and I am not aware that the par- 
 ticular question here made, has ever been 
 expressly decided, in any case occurring in 
 the Courts of this State. If the point were" 
 to be adjudicated by the law of England, the 
 way would be perfectly clear and open. I 
 would have but to travel a broad and beaten 
 path, so well defined that it would be impos- 
 silile to commit an error. In the Courts 
 which sit in Westminster Hall, on a bill to 
 marshall the a.ssets of a testator for the 
 payments of debts, a specific legacy would, in 
 a question like this, undoubtedly be primarily 
 
 *68 
 liable, in exonera*tion of a devise of real 
 estate, which is always specific ; and the 
 primary fund would have to be exhausted 
 before the devise could be touched. And in 
 support of this doctrine, as strong an array 
 of authorities and decisions, flowing in an 
 uniform and unbroken current, could be pre- 
 sented, as could lie adduced in support of any 
 principle of British jurisprudence whatever. 
 The origin of this deed preference of the 
 
 1805, made sale of the per.soualty to the amount 
 
 *67 
 of .*I8.33. The defendant *after\vards confessed 
 judgment on two notes of tlie testator, appar- 
 ently for a considerable sum, but on which 
 there was due only a very small balance. Un- 
 der the execution issued on this judgment, the 
 two tracts of land were sohl by tlie sheriff — 
 the tract of 2.")0 acres to the defendant him- 
 self, and the tract of 138 acres to one C. 
 
 De Saussure. Ch. It was shewn by the very 
 clear report of the referee, Mr. Farnandis, that 
 there was a lai-ge balance (jf the j)ersonal assets 
 of the estate in the hands of tlie defendant : 
 much more than enough to have paid off the 
 balance due by the estate of the testator, on the 
 "^ ' "'"''■"""♦■ 'f '*^ hnd be"n applied to the pay- 
 ment. But the funds of the personal estate 
 were not so applied : and levies were made on 
 two tracts of laud belonging to the testator's 
 estate; one containing l.'IS acres, and the other 
 cftntaining nearly 250 acres, but levied on, the 
 14th June. 1808, as containing 100 acres. The 
 two tracts were put up to sah'. bv the sheriff 
 of Newberry, and sold, 7th Aug," 1809. The 
 former tract (of 138 acres) was knocked off to 
 one C. for .$472 ; which was a small price. 
 The other tract of (of 250 acres) was knocked 
 
 *68 
 ofiE *at $126, to Mr. J., who was bidding for 
 
 28 
 
 English law, in favor of the heir or devlsco, 
 over the legatee or inheritor of personal 
 property, is to be looked for in remote ages. 
 Among a people living under the feudal 
 system, landed estate constituted the pre- 
 dominant element in the social and political 
 organization. And hence, we can hardly be 
 surprised at the vast imiwrtanee that was at- 
 tached to its possession. The aggregate of the 
 personal property then, embraced but a 
 small portion of the wealth of the nation, 
 while the few goods and chattels, that were 
 possessed by the humbler classes, were in- 
 secure, and liable to be snatched away by the 
 lawless, marauding barons. The lands were 
 all monopolised and held by the strong 
 arm of military power. Commerce had not 
 then expanded her sails upon every sea. and 
 iu co-operation with the mechanic arts, and 
 a inore enlightened agriculture, swelled the 
 wealth of the nation in personal property, 
 to the enormous and incalculable amount that 
 
 *69 
 *now exists. The feudal system yielded to 
 the irresistible influence of advancing civili- 
 zation ; but it yielded slowly, and its stern 
 features are still, and for a long period 
 to come will remain, deeply impressed iipon 
 the civil polity of the British Isles. And 
 
 defendant, the administrator. The land was 
 conveyed to defendant, by the sheriff, and has 
 been kept bv him ever since as his property. 
 
 It was fully proved that this tract of 250 
 acres, purchased by defendant at the sheriff's 
 sale, for .$120, was worth at the time of the 
 sale, at least .$7 more per acre, which would 
 amount to .$1750; and is worth, at this time, 
 at least .$13 per acre, which would amount to 
 $3250. 
 
 It was also proved that defendant not only 
 did not pay the debt on judgment out of the 
 personal estate, but pointed out the lands to be 
 levied on and sold to pay the debts: and that he 
 employed Mr. J. to bid for him. without inform- 
 ing him that himself was administrator, but as- 
 signing as a reason for his request, that if lie 
 bid openly, himself, others would run up the 
 land upon him to a high price. Mr. Fernandis, 
 who thought the land worth $8 per acre, at the 
 time of the sale, did not bid, because he saw 
 Mr. J. bidding, with whom he was intimate, and 
 did not choose to interfere. 
 
 Upon this state of facts, supported bv proofs, 
 *69 
 it is contended by the *complainants, that the 
 sale of the 250 acres, was fraudulent and void. 
 After a careful examination of the facts, it ap- 
 pears beyond all doubt, that there were funds 
 arising from the personal estate, in the hands 
 of the administrator, which were more than 
 suflicient to have paid the debts; and at all 
 events to have satisfied the judgments. That^ 
 even if that had not been the case — the sale 
 of the tract of 138 acres (bought by C.) was 
 more than sufficient to pay the delits. No ne- 
 cessity, then, existed for the sale of the 250 
 acres. Yet. it aj^pears. that the administra- 
 tor, who ought to have protected the estate, not 
 only did not perform his duty, by paying the 
 debt, but pointed out the land to be levied on 
 and sold under the execution. 
 
 The levy was made on the tract as containing 
 only 100 acres; and Mr. Farnandis, (then iu 
 the sheriffs ofiice,) proved that it was usual to 
 set up land at the quantity represented. 
 
 How this error arose, does not appear. But 
 the administrator — who was intimately acquaint-
 
 IIILL V. HULL 
 
 *71 
 
 even here In this new and distant land, and 
 under our rei)ul>lican institutions. ditTcrin;: 
 so widely fnini those of niedia'val a.ws, it 
 not unfreiiuently imposes its rude shackles 
 upon the adniiinstration of justice. Such is 
 the ori;,'in of that preference, j;iven hy the 
 Knt,'lish law, to the devisee over the lejiatee, 
 and which discrinunates unreasonably a\id 
 luijustly between them. I have alluded to 
 the vast increase, in modern times, of wealth 
 in personal property in the I nited Kinjrtlom. 
 It.s a f^i; rebate value now, jireatly exceeds 
 that of the real estate. This chanjie in the 
 condition of the country, as to the relative 
 value of real and personal i)roperty, it 
 niijrht be .supposed would lead to some modi- 
 fication of those distinctions which the law 
 makes between them, and this result has 
 happened to a very considerable extent : 
 but, thonph the feudal system has passed 
 away, leaviiiff, however, its strons; imitress 
 upon the institutions of our mother country, 
 there are causes still in operation, that im- 
 part to real estate an importance beyond 
 its intrinsic value. The hereditary nobility 
 constitute the jireat bulwark of the British 
 
 *70 
 monarchy; *the privileged classes form a 
 harrier, that interposes between the throne, 
 and pop\ilar encroachments and republican 
 tendencies. The existence of their privi- 
 leges, is identified with the prerojratives of 
 the crown. They support the throne, not as 
 their war-like ancestors did. hy the sword 
 and by military array, but by the infiuence of 
 their enormous wealth, and tlu'ir power as 
 hereditary le,i;islators. They are the stronj,' 
 pillars that support this ancient monarchy. 
 Volcanic and pent up fires snuuilder beneath 
 the venerable pile ; the waves of popular 
 discontent dash madly round the foundations. 
 Take away the barrier, from which the 
 
 ed with the affairs of the estate, and with the 
 land— iniiilit have corrected it. 
 
 *70 
 
 *The witnesses do indeed siiy, that they did 
 not see any iniproper condnct in tlie administra- 
 tor on tlie (lay of sale; or liear him make anv 
 ndsreiM-eseiitatidn. That mijriit l)c avtdded by 
 an experienced man. who was endoavorinj,' to 
 force a sah' of land of the estate iu his hands, 
 that he niij;ht l)uy it in at a very low price. 
 Tile eviih-nce of the facts— the ovidentia rei— is 
 irresistilih' in tlie case. The non-application hv 
 the administrator, of the assets in his hands— 
 which were more than sufhcient to pay thejiidg- 
 
 inent — I'iiises n viii1i>iif nri'<iini>if ii,!-, ■t,r.,i,\^t 1.;,., 
 
 iw f;ri iiie uuKi US luw as possiiiie. Ills em 
 ployinj; (hy wliat ajipears now to be au imposi 
 ti(in on lumi [iiivately a third persou, a gentle 
 nian of most respectable chara<'ter, who was 
 ignorant of his situation as administrator, and 
 did not know the l:ind, to hid for him. proves 
 a deliberate prosecution (.f that desimi. And 
 ^vhcn th.-it friend had bid in the land, at ton 
 times less than its then value, his takin;; ad- 
 vantage thereof, and accepting an absolute title 
 
 surge is made to recoil ; remove the w»Msiht 
 by which the popular upheaval is repressed, 
 and the HocmI and the earthquake would do 
 their work in an instant; and this proud 
 and powerful monarchy, in all its colo.ssal 
 proportions, would be swept away at once 
 and forever. No rettective nnnd that has 
 pondered upon the rise and fall of empires, 
 can douitt for a moment, that the same revo- 
 lutionary vortex that swallows u\t the Urit- 
 ish nobility, will also ingulf the Hritish 
 monarchy. These views are forcibly folt, 
 if not acknowledged, by their enlightened 
 statesmen and pid)lic functionaries. They 
 are appreciated by the middle classes, and 
 
 *71 
 by all the friends of peace, order and ♦sta- 
 bility, who hence sui)nHt to adndtteil evils 
 and abuses, "rather tli.m lly to those tln'y 
 know not of."' 
 
 The British nobility are essentially a 
 landed aristocracy. They have other forms 
 of wealth of cour.se; but their diginty and 
 fannly pride, are made to rest principally 
 upon their territ(u-ial domains. A landless 
 noble is an unfortunate being. A Duke, a 
 .Manpiis. or other hereditary peer, without 
 a rental, is an object of contempt to his own 
 order, and of ridicule to the classes beneath 
 them. The same remarks aiiply, with greater 
 or less force, to other orders of the nobility, 
 and the gentry generally. Very great stress 
 is laid upon their hereditary real estates. 
 And no sooner has a tradesman, who has 
 amassed a fortune, received the order of 
 knighthood, or retired without that di.stinc- 
 titni, — or a judge, or a successful soldier, en- 
 riched by the rewards of the State, been rais- 
 ed to the peerage, than they look about for 
 investments in real estate. They purchase 
 country seats, and their appurtenances, and 
 hope to become the founders of aristocratic 
 
 *71 
 to himself, is the *completi(in of the scheme, 
 which was to enrich himself, at the expense of 
 the widow and the orphans, who.se estate and 
 who.se interests he had in charge. 
 
 It is wonderfid that a person of so much nn- 
 derstandini;. shoidd be so blinded by interest, 
 as to be.iinile himself into a belief that such 
 transactions cnuld escape the scrutinizing eyes 
 of Coui-ts of justice. 
 
 It is the <luty of this Court to correct such 
 transactions: and that duty must he perform- 
 ed. It would he a disgrace to the adnniustra- 
 tion of justice, if this wei-e not uniforndv cor- 
 rected, when brou-ht to the view <if the Toiu-t. 
 
 The administrator had n() right, in the cou- 
 lidential relation iu which he stood, to become 
 the purchaser; at all events, not under such 
 I'ircunistances as he apiiears to have created, 
 or availed himself of. to irain a most advan- 
 ta.!r<>ous bargain to hiniseli". to the y:reat lo.ss 
 and ruin of the widow and children, whose \wr- 
 snnal estate was in his hamls. and nui;ht. and 
 ouiiht to have been applied to prevent the sale 
 of the land alto;rether. 
 
 It was alle-rod hy the counsel for the defend- 
 ant, that if the Court should set aside the sale, 
 and order an account for rents and pr<]fits, 
 it would be proi»er to make some allowance to 
 the defendant for his imi)rovcments. This de- 
 fendant is not entitled to any favor from the 
 
 29
 
 3 RICHx'^RDSON'S EQUITY REPORTS 
 
 houses, and to transmit their honors and pos- 
 ses>;ions to their posterity. It cannot be de- 
 nied that — where orders of nobility are to 
 exist — landed property constitutes the best 
 
 *72 
 form *of wealth, and the most stable founda- 
 tion on which the dignity of ancient and 
 aristocratic liouses can repose. Such an es- 
 tate is less likely to be alienated or dissipat- 
 ed. With such an estate the owner can more 
 easily identify himself, than with money or 
 stocks. The capitalist cannot love his money, 
 as an individual or a thing; but the moral 
 sentiments cluster thickly and strongly 
 around ancestral hall>5 and hereditary for- 
 ests, lands, parks and waters. If such an 
 estate is alienated from necessity or caprice, 
 the price is soon dissipated, and the degrada- 
 tion of the owner from his castle, soon fol- 
 lows. 
 
 Thus, it has become a prevailing principle 
 in the English law, to give preference to 
 land, and a prevailing sentiment in the aspir- 
 ing portion of English society, to seek that 
 mode of investment. Hence their law of en- 
 tails, and their laws of primo-geniture, the 
 policy of which is to sustain their ancient 
 aristocratic houses, by preserving their estates 
 from alienation and disintegration. Hence 
 the law, which exempted real estate from the 
 payment of debts, except those secured by 
 specialty; and even in that case, the remedy 
 
 *73 
 of the creditor was restricted. And *hence 
 the principle, which has become the subject 
 of enquii-y in this case, by which a preference 
 is given to a devisee, over a specific legatee, 
 in the payment of the testator's debts. ]N'one 
 of the causes which in the mother country 
 conspired to produce this unjust and unrea- 
 sonable distinction, are in operation with us. 
 We are far enough removed, both in the 
 
 *72 
 
 Court; but he is *entitled to justice; and if 
 he lias made any valuable and durable improve- 
 ments, beneticial to the complaiuauts, he ought 
 to be allowed some compensation for them. 
 That must be the subject of further examina- 
 tion. 
 
 It is ordered and decreed that the purchase 
 made by the defendant, at sheriff's sale, of the 
 tract of 250 acres of laad, be declared null and 
 void, and set aside; that the defendant deliver 
 up the sheriff's conveyance to him to be can- 
 celled ; that he deliver quiet possession of said 
 land to the complainants; that he account be- 
 fore Mr. Farnaudis, the referee, for tlie rents 
 and profits thereof, (in which account he shall 
 be allowed all reasonable deductions for actual 
 expenditures, and iinin'oveinents on said land, 
 beneticial to the comphiiiiants.) 
 
 It is further ordered and decreed, that all the 
 matters of account between these parties be 
 referred to Mr. Farnandis, to settle and adjust, 
 including the price of the land purchased by C. 
 
 This defendant to pay all the costs of suit. 
 
 An appeal from this decree was heard at 
 Columljia, December Sittings, 1819, when it 
 was affirmed by the whole Court, consisting of 
 Chancellors De Saussure, Waties, Gaillakd, 
 James and Thompson. 
 
 O'iS'eall, for complainants. 
 
 Crenshaw & McDuffie, for defendant. 
 
 lapse of time and the form of our institutions 
 from the feudal system, not to be fettered 
 bj' its dogmas, where they are felt to be in- 
 convenient, unreasonable and unjust ; more 
 particularly where, as in this case, we are 
 not bound by any authoritative decision of 
 our own Courts. The statute de donis con- 
 ditionalibus has never been of force in this 
 State. We have abolished long since thtj 
 law of primogeniture. Our law of descent 
 is adapted not to aristocratic, but to republi- 
 can forms of society. Its policy is rather 
 to pull down, than to build up and sustain, 
 great and overgrown estates. By the Statute 
 5 Geo. 2, Ch. 7, A. D. 1732, we have abolish- 
 ed all distinctions whatever, between real 
 and personal estate, in the payment of debts. 
 By its provisions, lands are declared to be 
 assets for satisfying the claims of creditors, 
 and are made liable to execution, "towards 
 the satisfaction of such debts, duties and de- 
 mands, in like manner as personal estates in 
 any of the said plantations respectively, are 
 seized, extended, sold or disposed of, for 
 the satisfaction of debts." (2 Stat. 571.) In 
 the construction of this Act, our Courts have 
 held (and this has long been the settled law,) 
 that the lands of an intestate, which have 
 descended to the heir, or of a testator, which 
 have been given by will to a devisee, may be 
 levied on and sold by the sheriff, under an ex- 
 ecution against the executor or administrator, 
 without nuiking the heir or devisee a party 
 to the proceedings, by notice or otherwise ; 
 although there may be sufficient personal as- 
 sets to satisfy the debts. Martin v. Latta, 
 (4 McCord, 128;) D'Urphey v. Nelson, (lb. 
 129, note.) The Stat. 5 Geo. 2, and the judi- 
 cial interpretation it has received, have plac- 
 ed real and personal property upon precisely 
 the same footing, as it respects the compul- 
 sory satisfaction of debts. Every portion of 
 a testator's estate is liable to his creditors. 
 
 *74 
 In regard to them, the ques*tion. as to which 
 fund is primarily liable, does not arise. And 
 they have the same facilities of relief, in the 
 way of process, for enforcing payment against 
 the one, as against the other. 
 
 Such being the state of our law, and its 
 policy on this subject, is there any thing in 
 justice or reason which would, as between a 
 devisee and a specific legatee, subject the 
 property given by t^ie testator to the latter, 
 to the payment of his debts, to the exemption 
 of that given to the former, by the same bene- 
 factor? Lands have not here that adven- 
 titious value, which for causes we have inves- 
 tigated, obtains in the parent country. They 
 are not more valuable than personal prop- 
 erty; than negroes, for example. Indeed the 
 latter, if facility of converting them into 
 cash, at an established marketable value, 
 may be considered a test, are the most desir- 
 able of the two. Setting aside tlie reasons 
 to be derived from the s(icial polity of Eng- 
 land, past and present, is there a single ar- 
 
 30
 
 HULL V HULL 
 
 *76 
 
 {ruinont by which the distinction can he vin- 
 dicated? Is there any sound lesral idiilosophy 
 which supports it? Is it not opposed, to jus- 
 tice and condemned hy reason? Wliere a tes- 
 tator fiives a tract of hind to one, and a 
 chattel to anotlier of liis friends. l»y the same 
 specific form of laii^'uage, and a description 
 which identities liotli. a rule that would make 
 one of those jiifts lialile before the other, for 
 the payment of debts, is notliiuK less than 
 absurd ; except, indeed, where the rule has 
 originated in some sreat and controlling 
 policy. If the testator indicates which fund 
 shall be primarily liable, it is. of course, a 
 different question; for his will is the law of 
 the case. But the distinction, which is ob- 
 noxious to the charfie of absurdity, is where 
 both are given in the same form of language, 
 without any expression fmm tiie testator, as 
 to which fund shall be primarily liable. Let 
 me illustrate by an example. The testator 
 says, "I give and devise to my son, Michael, 
 my house and lot, in the town of Columbia, 
 on which I live," &c. "To my daughter, 
 Mary, I give and becpieath the following 
 slaves, namely, Tom. Dick, Bet." &c. The 
 testator dies indebted to the value of the 
 slaves, which he intended as a provision for 
 his daughter, who must now remain portion- 
 
 *75 
 less, *and be turned a beggar upon the world, 
 because her legacy, although as specifically 
 intended for her, as the real estate was in- 
 tended for the son, is. by the rule, primarily 
 liable. Is it not the better and more equita- 
 ble rule, that the devise and legacy should 
 abate pro rata? I dare afhrm that the rule 
 which, in such a case, would subject the 
 legacy to the exoneration of the devise, 
 would, in nine times out of ten, defeat the 
 intention of the testator. When a testator 
 gives his legatee a specifically described 
 negro, he as clearly means that his legatee 
 shall have and enjoy that iiarticular negro, 
 as when he gives to his devisee his land. 
 Where the testator has not intimated the 
 slightest distinction between them, nor hinted 
 which would be primarily liable for debts, 
 ui»on what principle of justict' can the Court 
 interfere, and say that the one of those two 
 eiiually favored objects of the testator's love 
 and bounty shall pay the debts — even to the 
 entire exhaustion of his share, and to the ex- 
 emption of the other? There is no principle 
 upon which such an interposition can be jus- 
 tified. The intention (»f tiie testator, we are 
 taught, is the pole star in the construction 
 of wills. We carefully and laboriously .seek 
 it, through all the obscurities of language, 
 and by rules of interpretation that are .sanc- 
 tioned by reason and experience. And when 
 we have found the intention of the testator, 
 we are obliged to enforce it; unless, indeed, 
 it be that such intention be contrary to the 
 policy of the law. I'.ut in this case, we are 
 called upon to violate the manifest inten- 
 tion of the testator, not becausj that inten- 
 
 tion is opposed to the policy of our own laws, 
 liut because such a decision would be more in 
 consonance with the policy of a distant and 
 alien land. 
 
 If we were trammelled iiy precedents and 
 decisions of our own Courts, the case might 
 present a more dubious aspect. But I have 
 looked over the reported decisions, and do 
 not find that this point has ever i>eeu made 
 as an issue and adjudicated by the Court. 
 Dicta there are, contrary to the conclusion 
 to which my judgment has led me. But opin- 
 ions upon collateral (luestions of law, ex- 
 pressed, arguendo, by the Judge, who acts 
 as the organ (jf the Court, in delivering its 
 
 *76 
 judgment, cannot be con*siilered more au- 
 thoritative than his own indjvi<lual and pri- 
 vate opinions. Indeed it is exceedingly un- 
 fair to consider them the result of his own 
 settled and deliljerate judgment. Such col- 
 lateral matters are not discussed before and 
 adjudged by the tribunal that decides the 
 ca.se. and oftentimes are but slightly consid- 
 ered by the Judge who expresses liis o|iinion 
 upon them. Therefore, upon the .soundest 
 piinciples. they are regarded as fallacious 
 guides. I would not impugn the decisions in 
 which their dicta have been expressed, nor 
 deny that, as a general rule, personal prop- 
 erty should be the primary fund for the pa.v- 
 mont of debts. But I say that the rule 
 should admit of some qualilication. and that 
 a specific legacy of personal property should 
 he liable only, pari passu, with a devise of 
 land; and not liable at all. until other assets. 
 real or personal, not specifically disposed of. 
 or charged with ()r devised for the payment 
 of debts, are exhausted. It is said by the 
 Lord Chancellor, in Ilarmood v. Oglander. 
 (S Ves. lOG.j "that in the adnunistration of 
 assets, ordinarily, the fir.st fund apidicalile 
 is the personal estate, not specifically be- 
 (lueathed; then land devLsed for the payment 
 of debts, not merely charged, but devised or 
 ordered to be sold; then descended estate: 
 then lands charged with the payment of 
 debts." It is obvious, therefore, that even 
 in England the intention of the testator is 
 respected, and the legatee is protected, ex- 
 cept where he comes into conflict with the 
 devisee: in which case, the latter is exonerat- 
 ed until the interest of the former is ex- 
 hausted. For such a distinction. I see. as 
 I have said, no reason applicable to the state 
 of circumstances existing in this country. 
 In Warley v. Warle.v. (Bail. K(|. 400.) Chan- 
 cellor Harper, in allusion to the rules pre- 
 vailing in the English Court, in the admiuTs- 
 tration and marshalling of assets, says, "we 
 have adopted the English rule to a consider- 
 able extent; but the aitproximation of rea'l 
 and personal estate, in descent and in other 
 particulars, has shaken the rule a good deal." 
 From which I infer, that it was the opinion 
 of that philosophic jurist that our Courts 
 were not, in the altered circumstances of
 
 *76 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 this country, bound to follow the English de- 
 cisions on this subject. 
 *77 
 
 *It was urged, in the argument of this 
 cause, that the first clause of G. H. Hull's 
 will, in whi h he expressed his wish that his 
 executor should "out of his estate, pay off 
 all his just debts and funeral expenses," was 
 an indication of an intention that the per- 
 sonal estate should be primarily liable ; be- 
 cause the real estate not being devised to 
 the executor for this purpose, nor any au- 
 thority given to him to sell it, the implication 
 is, that he meant that the executor should 
 pay the debts out of the personal estate only. 
 This construction is somewhat specious, but 
 it does not strike me as correct. The word 
 "estate,"' embraces the realty, as well as the 
 personal property. The words of the clause 
 would, in England, be sufficient to charge the 
 real estate, in cases where it was exempt. 
 And if so. the construction contended for, can- 
 not be the true one. I cannot suppose the 
 testator to have entered into the nice legal 
 distinction which this meaning would imply. 
 I think it clear that he thought his devises 
 and specific legacies would remain intact, 
 and that the general residuary estate, would 
 be sufficient to pay his debts. 
 
 After a great deal of deliberation, I have 
 adopted the conclusion, intimated in the fore- 
 going remarks, to sustain the first exception 
 of the defendants, which is accordingly done. 
 
 The third exception of the defendants is, 
 "because the Commissioner, in ascertaining 
 the value of the real and personal estate, de- 
 vised to defendant, Zulina, has estimated 
 the fee simple value thereof; wliereas, it is 
 submitted, that she could have the enjoy- 
 ment of the property, but for life, without 
 the power of disposing of it at her death, 
 and that her interest therein, should have 
 been estimated and valued accordingly." 
 The appeal decree directs the Commissioner 
 to ascertain and report "the nett value of 
 the devises and legacies to Zulina ; and the 
 excess received by her, over one-fourth of 
 the testator's estate, clear of debts." The 
 same decree has ;idjudged that she takes a 
 fee conditional in the real, and a life estate 
 in the personal estate. In regard to the 
 personal estate, the children of Zulina, if 
 she had any, would take as purchasers. In 
 regard to the real estate, they would not 
 
 *78 
 take as purchasers, but by way of ♦limita- 
 tion, and per formam doni. If she takes a 
 fee conditional, as she does by the express 
 terms of the appeal decree, as well as upon 
 principle and authority, then the ulterior 
 limitations over in the event of her dying 
 without issue, are void. A remainder cannot 
 be limited after a fee conditional. The only 
 abridgment of her interest in the land, is 
 its being reduced from a fee simple to a 
 fee conditional. The question then occurs, 
 whether, in valuing her interest in the real 
 
 32 
 
 property, there is to be any deduction in its 
 estimated value, in consequence of its being 
 a fee conditional, instead of a fee simple. If 
 Zulina Hull, (now Bryan) should have chil- 
 dren capable of inheriting this fee condition- 
 al, then she may alien and bar the issue. 
 It then becomes in marketable value and for 
 all practical purposes and uses, equal to a 
 fee simple. If she does not alien, it is true 
 that she can not devise it; but, on this con- 
 tingency, it must descend to her issue, per 
 formam doni. If slie suffers it thus to de- 
 scend without exerting her rights of aliena- 
 tion, it will be her own election, and she 
 cannot complain. If she forbears to bar the 
 issue, having the power to prevent the de- 
 scent, it may be considered as her own vol- 
 untary disposition of the estate; and it will 
 go as most persons would desire their es- 
 tates to be disposed of after death. The 
 only feature that can depreciate the value of 
 a fee conditional is, the possibility of a re- 
 verter, to the heirs of the testator. This 
 reverter is not considered in law as an es- 
 tate. It is too small and remote an interest 
 to have that character impressed upon it. It 
 is too remote and contingent to be valued. 
 There is no appreciable interest left in the 
 donor. I do not know by what process, or 
 mode of calculation, we could estimate the 
 value of a possibility of reverter to the tes- 
 tator. The value of the possibility of rever- 
 ter constitutes the only difference between 
 the value of an estate in fee simple, and an 
 estate in fee conditional. It is admitted that 
 Zulina has, at this time, a child or children. 
 If she has, her fee conditional estate, for 
 all practical purposes, is worth as much as 
 if she held it by a fee simple title. There 
 was no evidence as to the birth of children, 
 but the fact was admitted at the trial. At all 
 
 *79 
 events, *she being a young woman, and mar- 
 ried, the contingency of a reverter of the es- 
 tate is exceedingly remote. I think, there- 
 fore, that the principle on which the Com- 
 missioner valued the devise was correct. 
 
 The case is very different as to her legacy. 
 The Court of Appeals has adjudged that she 
 takes only a life estate in the personal prop- 
 erty. It has gone farther, and has adjudged 
 that the remainder to her children, after 
 the termination of her life estate, was 
 to be excluded in the valuation of the fourth 
 of her father's estate, which she is entitled 
 to retain under the provisions of the Act. 
 The language of the decree is most explicit. 
 "But," says the Court, "if we should take 
 into consideration bounties of this remote 
 description, we should entangle ourselves in 
 inextricable difficulties in the application of 
 the statute. And we deem it safer 1« hold, 
 that the interests of the children of Z^ilina, 
 who take as purchasers distinctly from their 
 mother, and not through her, and in connec- 
 tion with her, shall not be considered as a 
 gift to her."' In connection with this part
 
 HULL V. HULL 
 
 *S2 
 
 of the decree, the (liroction to the Coiimiis- 
 sioner to report the nett vakie of the devises 
 and les;iieies to Zuliiia. has a lueaniiij; and an 
 object. It will he perceived that the huij;ua;r<' 
 of the passaj^e quoted, repels tiie idea of 
 exeludinj; fniui the valuation the interest 
 which the cliildren take in a fee conditional: 
 where they do not '"take as purdmsers dis- 
 tinctly from the mother, hut throuu'h her. 
 and by way of limitation." While the prin- 
 ciple is as distinctly declared, that where a 
 life estate is given to the parent, with re- 
 mainder directly to the issue as purchasers, 
 the life estate is alone to he regarded as a 
 gift to the parent. There are fanuliar and 
 practical modes hy which the value of a life 
 estate may he ascertained. The proeess, 
 though in some degree necessarily arbitrary, 
 is every day resortetl to in the Courts iioth 
 of law and equity. Approximation is the 
 only thing possible, or that is aimed at, in 
 such estimates. The Commissioner was in 
 error in placing the fee simple value on the 
 negroes given to Zulina by testator's will. 
 
 *80 
 So much *therefore, of the exception of 
 Zulina, as relates to the valuation of the ne- 
 groes bequeathed to her, is sustained. 
 
 The fifth exception of the defendants is, 
 "becau.se the defendants, Bryan and wife, 
 have a right to select out of the property 
 devised and bequeatiied to the wife, the par- 
 ticular projierty which they prefer to keep: 
 and. in throwing off the e-xcess of one-fourth, 
 they have the same right to i)oint out what 
 property is thus rejected. In this case, .said 
 Bryan and wife elect to take in the first 
 place the whole personal bequest to her, and 
 the balance in real estate.'" This exception 
 raises another difficult question. It is singu- 
 lar that an Act so short, and apparently 
 so simple in its provisions, should have given 
 rise to .so much litigation in the Courts, and 
 so many difliculties in its construction. I 
 can scarcely hope to pa.ss through the laby- 
 rinth of difficulties presented in this case, 
 without falling into .some error. The (pies- 
 tion made in this exception seems to have 
 been decided in favor of the exceptants, in 
 the unreported case of CJardner v. Atkin.son 
 (.MS. Decisions, Book B. p. .'UO Columbia). 
 I have not seen that case. It is quoted by 
 Ch. Johnston, in his circuit decree in this 
 proceediiii:. d' Strob. Eq. isT.t I should not 
 consider the jirinciple of construction, that ob- 
 tained in that case, (Jardner v. Atkin.son, 
 entirely free from doul>t. There are dilfi- 
 culties : l»ut. upon the whole. I incline to 
 thiidv that the decision may be supported, 
 as the correct interpretation of tiie Act. As 
 Chancellor Joinistoii has s.-iid. in his circuit 
 decree in this ca.se, "it is the amount or 
 value of the excess over one-fourth that is 
 declared void, and if the bastard will pay up 
 tliat excess in value, he is entitled to the 
 devise of the whole estate." The Act dof^s 
 not declare that the gift shall be void for 
 3 Bich.Eq.— 3 
 
 the excess over one-fourth, but "that it shall 
 be null and void, for so nimlt of tliv amnunt 
 or value thereof, as shall or may exceed such 
 fourth part," &c. It aiijiears to me. that 
 there is sigrdficancy in the pet-uliar form 
 of the phraseology, that I have placed in 
 italics. 
 
 The Act does not say in words what dis- 
 P'osition is to be matle of the portion of the 
 
 *81 
 gifts to the illegitimate child, that is ♦de- 
 clared void. That is left to implication. But. 
 by judicial construction, it is not absolutely 
 null and void, but vuidalle. at the instance of 
 the lawful wife and ciiildren. In Owens v. 
 Owens, (MS.) it was held that the will of 
 a testator was good and valid against all 
 the world, except as against the lawful 
 wife and children. And in r.reithaui)t v. 
 liauskett. (1 Itich. Eq. 4(i.j.t it was held, by 
 Chancellor Harper, that the right to vacate 
 tiie gift for the excess, was so entirely a 
 t)ersonal privilege to the wife and children, 
 that it did not survive to the executor. 
 
 The force and effect of the.se decisions, and 
 of this construction is to establish this prin- 
 ciple, that the lawful wife and children are 
 not joint tenants, or tenants in conunon, 
 with the Illegitimate child, where the gift 
 exceeds the fourtii of the te.stat<»r's estate. 
 If the Act constituted them joint tenants, 
 or tenants in conunon, the estate or interest 
 of the wife and lawful children would, on 
 their death, descend to the heirs at law, or, 
 in ca.se of a chattel, be transmitted to the 
 personal representatives. The right then of 
 the wife and lawful children in such a case, 
 is not an estate or vested interest. It is 
 not devisable, descendible or transmissible : 
 is it even assignable? If it is, and should 
 not be recovered in the life of the party as- 
 signing, the assignment would be defeated. 
 What, then, is the interest, which the wife 
 and lawful children take in the gift to the 
 bastard, where it exceeds a fourth? It is 
 anomalou.s, and difficult to be defined. It 
 may be called a claim entirely personal to 
 them, to which they are entitled under the 
 restrictions which I have above expressed; 
 a claim to call on the illegitimate child for 
 "the amount or value.'' of what said child 
 has received over the one-fourth part of 
 testator's e.state. The legal title of tiie bas- 
 tard is goo<l and perfect, sultject only to this 
 purely personal equity, created by the Act. 
 in favor of the wife and lawful children. 
 If they obtain the excess over the fourth in 
 "amount or value," is not the si)irit of the 
 Act as well as its words satisfied? 
 
 Suppose that the bastard takes, by tiie will. 
 *82 
 houses, lands or *chattels. which exceed the 
 fourth by au inconsiderable amount ; will 
 it be said that pecuniary compensation for 
 the excess would not satisfy the re(piisitions 
 of the law? Or suppo.se. as in this ca.se, the 
 bastard takes negroes by the gift, to which 
 
 3;J
 
 *S2 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 she is, or may be attached, as well as lauds 
 as the claimants have no legal title or estate 
 in any of the property; may she not say to 
 them, I will satisfy your claim out of the 
 lands? It seems to me that Bryan and wife 
 ho^'e a right to elect what property they 
 will keep, to make up their lawful fourth, 
 and to throw off the excess. This exception 
 is sustained. 
 
 I come now to the consideration of the ex- 
 ceptions on the part of the complainants. 
 Th|S first claims an imqualified right of 
 partition of the property, on the part of the 
 complainants, with an account of rents and 
 profits. I have already decided this question, 
 in my decision upon the fifth exception of 
 the defendants. The unqualified right to a 
 partition would pre-suppose that the wife and 
 lawful children had an estate or vested 
 right in the property, to the amount of their 
 claim. This, we have seen, is not the case. 
 There are circumstances in which partition 
 may be proper, and even necessary, and 
 where the Court will resort to this process, 
 as a means of obtaining the proper and nec- 
 essary results. It must be subordinate to 
 the right of the illegitimate child, to elect 
 what property to retain, to make up the 
 fovirth, and what she will throw oft"; and 
 also to satisfy, by pecuniary compensation, 
 the excess in amount or value over the fourth< 
 If the bastard refuses or omits to throw oft'. 
 or to give pecuniary compensation for the ex- 
 cess, partition may be resorted to, in the dis- 
 cretion of the Court, for the purpose of dis- 
 pensing justice among the parties. This 
 exception is overruled. 
 
 The complainants's second exception is, 
 because, "even if the plaintiffs have no right 
 to partition of the specific property given 
 to the defendant, Zulina, by the will of 
 Gideon H. Hull, they are at least entitled 
 to such proportion of the income and profits 
 thereof, accrued since his death, as the ex- 
 cess of the provision for her above one-fourth 
 part of the clear value of his whole estate 
 bears to the whole value of such provision, in 
 
 *83 
 lieu of inter*est upon the sum at which such 
 excess is estimated." As a result of the de- 
 cisions on this statute, and of the principle 
 that the right of the wife and lawful chil- 
 dren is a mere personal claim, awaiting their 
 demand, and that they have no estate in the 
 property, I doubt if they are entitled to in- 
 terest or rents and profits until a demand is 
 made. Of this they could not complain, 
 as in the most of instances it would be 
 tlieir own default, if the demand was not 
 immediately made. On this point, I express 
 no opinion, but say that they are entitled to 
 interest, .or an account for rents and profits, 
 (if entitled at all) according as the illegiti- 
 mate child may elect to make pecuniary 
 compensation, or a partition of the specific 
 property be resorted to as a necessary pro- 
 cess, to ascertain and put them in possession 
 
 34 
 
 of their rights. This exception is overruled. 
 
 It is ordered and decreed, that the report 
 be re-committed to the Commissioner, and 
 that the parties have the rights belonging to 
 them, as declared in tliis decree, and that 
 the report be re-formed and made conforma- 
 ble to the principles herein above set forth. 
 
 The complainants appealed, on the grounds, 
 
 1st. That the decree is erroneous in decid- 
 ing that lands, specifically devised, are 
 chargeable, and must contribute for payment 
 of the testator's debts, rateably with person- 
 alty specifically bequeathed, where the will 
 does not otherwise direct. 
 
 2d. That, according to the correct con- 
 struction of Gideon H. Hull's will, the entire 
 personalty of his estate is charged primarily 
 with the payment of his debts, and must be 
 exhausted before tiny contribution for that 
 purpoj^e can be exacted from the real estate 
 devised. 
 
 3d. That, instead of the excess in value of 
 the provision made for the defendant, Zu- 
 lina, by the will of Gideon H. Hull, above the 
 one-fourth part of the clear value of his es- 
 tate, estimated in money, wiih interest there- 
 on, the plaintitt's are entitled to have parti- 
 tion made between her and them of the spe- 
 cific property given to her by the will, and 
 an account of the income and profits of the 
 same, accrued since the testator's death. 
 
 4th. That the decree errs in t^ustaining the 
 *84 
 fifth exception of *the defendant, Zulina, 
 to the Commissioner's report, the law admit- 
 ting no such right of election on her part as 
 is set up by that exception, and recognized 
 by the decree. 
 
 The defendants also appealed, on the 
 ground. 
 
 As to that part of the decree which sus- 
 tains the Commissioner's report, and over- 
 rules no much of defendants's third exception 
 to that report as relates to the valuation of 
 the interest which Zulina Bryan took under 
 the will in tlie real estate devised to her, the 
 defendants submit, and will endeavor to 
 maintain, that the interest she took in the 
 real estate devised to her, whatever be its 
 legal character or denomination, is less than 
 an absolute or fee simple title ; that, at the 
 death of the testator, it was practically, at 
 most, but a life estate to an unmarried fe- 
 male infant, about ten years of age, with the 
 capacity of becoming enlarged to a fee sim- 
 ple, upon her living to the age of twenty-one 
 and having lawful issue. The estimated val- 
 ue of these contingencies should have been 
 ascertained by the Commissioner, and deduct- 
 ed from the intrinsic value of the lands. 
 
 Carroll, Yancey, for complainants. 
 Bauskett, Gray, for defendants. 
 
 JOHNSTON, Ch., delivered the opinion of 
 the Court. 
 
 Of the numerous questions presented by 
 this appeal the only one argued was that re-
 
 HILL V. HILL 
 
 spcctinfT tlie relativo liabilities of icai ainl 
 iKTsoiial estate to tlio payinciit of the dclits 
 of a (Icceased. 
 
 lU'ffiH' imtceedinj,' to llic iiKirc particular 
 <Iis(»issi«»n of it, it may ho proper to licstow 
 a |)assiiiy attention ui)on the direction of the 
 testator, that the executor, -out of his es- 
 tate, pay oft- all his just del.ts and funeral 
 expenses." In the absence of any specific 
 indication of the fund out of wliicli the pay- 
 ment .should be made, tliis direction is .some 
 evidence of intention that tlie executor .should 
 employ the personalty, which is at his dis- 
 posal, as the means of accomplishing the end 
 pointed out. 
 
 "If," says a respectable elementary writ- 
 er,(/>) "the executor is i.ointed out 'as the 
 person to pay, that excludes tlie presumption 
 •'85 
 
 *that other persons, not named, are requir- 
 ed to \my;" and "if the testator directs a 
 l)articular person to pay. he is presumed, in 
 tile alis(>nce of all other circumstances, to 
 intend him to pay out of the funds with 
 which he is intrusted, and not out of other 
 funds, over which he has no control.'' 
 
 Tlie distinction, thouirh nice, is — as this au- 
 thor Justly observes— clear in theory, how- 
 ever didicult in its application to particular 
 cases. 
 
 r.ut. without the aid of this clause, the ma- 
 jority of the Court is prepared to sustain 
 I he proposition submitted in ar.uument by 
 the i)laiiititrs' coun.sel ; that, in tlie adminis- 
 (ration of tlie assets of a testator, who has 
 i-'iven no specific direction on the subject— as 
 between legatees of the real and personal es- 
 tate—the jiersonal estate is liable for tlie 
 payment of debts, before resort to the realty. 
 It is hardly necessary to remark that credi- 
 tors are not concerned in the (piestion. The 
 ( haiicelb.i- lias jiroperly ol)served that "every 
 I'orfion of a testator's esfat(> is liable to 
 creditors," and, therefore, "iu n-anl to 
 them, the question as to whicii fund is pri- 
 marily liable, does not arise. They have the 
 same facilities of relief, in the way of i)ro- 
 "fss. for eiiforcinf,' payment a^Mlllst the one 
 as a^'ainst the other." 
 
 It is stated in the decree— and it is true, 
 beyond controversy— that, by tlie law of Kn«' 
 l.tiid. (whicli is our law, except .so far as we 
 bii\f inodilicd it.) per.sonal esfat«' is tlie pri- 
 I'liMy fund, as between iiersonal and real es- 
 iMle. staiidin- in the .same circumstances. 
 
 Has this law ever been abrot^ated or modi- 
 lie<l in this StateV Until the present time. 
 I believe it lias been received and accept. <d 
 ••IS th,. un(|ue.sti(,ned law of the hmd. both by 
 the comniuiiity, the profession, and the Lejj- 
 islature; and, if there has been no express 
 adjudication on the point now presented, 
 it may be accounted for by the fact, that tlie 
 doctrine was never doubted: and, therefore, 
 the question was never raised. 
 
 (^) li iStory Eq. § 1247. 
 
 r It is not perceived that the leirislafion of 
 tills State has abolished tlie distinction be- 
 tween real and per.s..nal property, in respect 
 to their administration. 
 ♦ 86 
 *It is true the statute de donis has not been 
 adopted by us. Fees conditional, unless 
 alienated by tlie tenant, or charjied by him 
 in his life time, as it is said he may do.fri 
 descend, upon his deafli. per formaiii d<mi: 
 and tliouj,'li. by the Statute ."> Geo. 1'. ch. 7, (l' 
 Stat. r>7L P. L. 27*0,) of which I shall speak 
 hereafter, they may be as lialile. in the 
 hands of the special ln'irs. as lands held in 
 fee simple are liable in the hands of tlie heirs 
 f-'eiieral (which may \h' (huibtedi; this does 
 not prove that they are e<iually liable with 
 personal estate. 
 
 It is also true that we have altered the 
 law of descent as to real e.state. The in- 
 heritance is no longer confined by primo- 
 f-'eniture, but falls eiiualJy upon all the chil- 
 dren. Does it follow that the Intention was 
 to strij) the children of their inheritance.— 
 to abolish the distinction between this species 
 of property.— which is in its nature inherita- 
 ble, and gt>es to the heirs, and the chattel 
 property, whicli goes to the pei-sonal repre- 
 sentative, and in which the i.ssue of the de- 
 ceased have only an interest resultinu: to 
 them, after the representative has perform- 
 ed his duties out of itV 
 
 The Statute ,-> (Jeo. 2. ch. 7, § 4. r2 Stat. .-)71.) 
 is no i)roof (further than that it has not been 
 rt'pealed by us.) of the policy of this State. 
 It was enacted by a foreign legislature in 
 17:^2. while we were yet a colony. It has 
 express and exclusive reference to the in- 
 terests of creditor.s. and was probably intend- 
 ed to give confidence and security to the 
 Knglish merchants with wlioni the'coloni.sts 
 dealt. There is nothing in it to aftect the 
 relative liability of lands and pei-sonal prop- 
 <'rf.\-. as between the heirs and distributees. 
 or the devisees' and legatees; and. as we 
 have before observed, the (piestion as between 
 them is one in which creditors have no con- 
 cern. 
 
 The decisions upon (bis statute, to which 
 the decree refers, (which, by the wav. have 
 I'een greatly niodilied.) (d) recognize the dis- 
 tinction between the liability of huuls and 
 chattels. How then can they be authority 
 for the position that there is no distinction? 
 ♦87 
 
 ♦'I'he earlie.st of the.se decisions adjudged 
 (though with a strength that has been di- 
 minislu.d by suli.sequent ca.ses.)(e) that an ex- 
 ecution obtained by a creditor against the 
 personal represent.-itive of his deceased debt- 
 or, migiit be levied upon his land.s, in the 
 bands of his heir, or devisee, though the 
 
 (ti Izard V. Izard. Bail. E(j. 2:J4, o. 
 
 ((/) See the oases. 4 MeC 129; 2 Hill .•"i7'l • 
 Spoors Eq. 250; 2 Hill K,,. 2(i0. 
 
 ('•I Soo the cases, 4 McC. 12I( ; 2 Hill 570- 
 Spoor's Eq. 250; 2 Hill E.j. 200! 
 
 25
 
 -87 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 heir or devisee was no party to, nor had no- 
 tice of. the suit in which the execution was 
 obtained, and though there were personal as- 
 sets in the hands of the representative to 
 satisfy the debt. 
 
 It is, perhaps, unfortunate that the cases 
 alluded to, occurred in, — and that the ques- 
 tions involved in them, were consequently 
 presented to, — a law Court. Had the credi- 
 tor brought his case in equity, where perfect 
 relief could have been administered with ref- 
 erence to the rights of all parties concerned, 
 he might have brought in not only the heir, 
 but the executor, and the decision would 
 have been such as not only to secure the 
 creditor in all liis just rights, but to adjust 
 the liabilities of the heir and executor ac- 
 cording to the relation subsisting between 
 them, and arising from the assets received 
 by them, respectively. 
 
 The earlier law decisions to which I have 
 alluded, did not, it seems to me, sufficiently 
 distinguish between the liability of the land, 
 created by the statute, and the remedy, or 
 means of enforcing that liability. Too much 
 stress was laid on the mere words of the 
 statute, as respected the remedy. 
 
 No doubt exists that lands ai'e made liable 
 under the statute, but the material question 
 in this case, was in no respect within its pro- 
 vision ; and that question is affected by the 
 decisions referred to in the decree, only so 
 far as they affirmed the right of the creditor 
 to sell the land in the hands of the heir, or 
 devisee, under a proceeding against the ad- 
 mini^^j:rator or executor alone. 
 
 Tliese decisions have never been satisfac- 
 tory to the profession. (/) To sell a man's 
 land for debt, witliout impleading him, when 
 the land was not bound by a judgment when 
 it came to his possession, and when assets 
 are, or may be. in the hands of an agent ex- 
 pressly ai)pointed by law to pay the debt, 
 
 *88 
 is against *common right. The Courts have, 
 on several occasions, expressed their regret 
 that the decisions were ever made, and de- 
 clared their determination never to extend 
 them, and have, in fact, materially restricted 
 them. Tlie decree, in this case, violates de- 
 liberate opinion.s thus expressed, by assum- 
 ing that the decisions are unexceptionable, 
 declarative of the true policy of tlie State, 
 and entitled to be extended to new results 
 beyond the points decided. 
 
 These decisions do not determine that the 
 land — though liable — is not the secondary 
 fund. Tlie Judges were of a different opin- 
 ion. It was not decided in these cases, nor 
 could it lie decided in a law forum, at least 
 in such a proceeding, that the heir or dev- 
 isee had no recouise over against the exec- 
 utor, or against the legatee, to whom the 
 executor had paid the personal assets. The 
 
 (/) See note (d) and Speer's Eq. 252; Rice 
 
 Eq. 3S!S. 
 
 only judgment given was, that the land was 
 liable to the unpaid creditor. I'pon the 
 Chancellor's own principle, the heir was en- 
 titled to an after proceeding for contribution. 
 This is proof that there is a right to recover 
 over. Is there any thing in the decisions re- 
 ferred to, to shew the extent of this right, 
 to shew that it is limited to an equal con- 
 tribution, and shall not go to the whole loss 
 sustained by the heir? If not, then those 
 decisions have determined nothing on the 
 questions we are now discussing. 
 
 Taking those cases (I still mean tlie earlier 
 cases quoted in the decree) to have decided 
 nothing more than that the land of a de- 
 ceased was liable for his debts, (and this is 
 all they did decide.) their only fault was, 
 that the judgment was made to bear upon a 
 party who was never impleaded. The error 
 in this decree consists in extending those de- 
 cisions, by inference, into adjudications that 
 land is equally liable with personalty tor 
 debts — when that point was not, and could 
 not have been, adjudged in the cases. 
 
 The decree is not only confessedly contrary 
 to the law, as we borrowed it from England, 
 but is, as we have just shewn, unsupported 
 by the cases referred to, to sustain it. 
 
 What else is there to support it? 
 *89 
 
 *The argument is that it is demanded by 
 our peculiar policy. 
 
 At an earlier period of my judicial life, I 
 would have said roundly — as I have perhaps 
 somewhere said — that questions of policy are 
 exclusively for the legislature, and that the 
 sole duty of the Courts is to declare, and not 
 to reform, the law. Greater experience has 
 chastened and modified many_ of my earlier 
 opinions ; and among others, to a slight ex- 
 tent, those bearing upon this subject. 
 
 While the legislative power extends to all 
 questions of policy, and while to the legiS' 
 lature belongs the right to alter and reform 
 the law, at their discretion, with no other 
 limit than the constitution, the judicial pow- 
 er, as it had always been exercised by Courts 
 of justice, was vested, by the constitution, ia 
 the judicial forums. 
 
 It is their province to declare the law. 
 But the law has never been stationary. It 
 is, and has ever been, actuated by certain 
 great cardinal principles ; and it is, and 
 ever has been, the function of Courts of jus- 
 tice to apply these principles to the affairs of 
 men, brought under their cognizance, as they 
 may be varied by their circumstances, or the 
 circumstances of the community, or the age. 
 
 By this process it must necessarily occur, 
 that in the application of the leading or ele- 
 mentary principles, some subsidiary or sec- 
 ondary rules or principles, become, in the 
 progress of time, more developed or perfect- 
 ed, and others more I'estricted, according as 
 they serve, more or less, to promote and ad- 
 minister the great ends of forensic justice. 
 
 Sometimes a new subject, tit to be brought
 
 Ill 1,1, v. Ill I.I, 
 
 *92 
 
 umlor judicial cofiuizanco, is discovered, 
 wiiicli liiid idtlieito escaped oliservatioii, al- 
 tliuu.L'h tiu' law of the forum fully einlirace<l 
 it. And .sonietlme.s a remedy is brought to 
 view, which had not lieeii hitherto adminis- 
 tered, luit which the powers of the Court 
 eiiaided it. iipnn iiriiiciple, to administer, 
 and hound it to administer. Sometimes the 
 lej^isiature introdu<es, hy statute, a principle, 
 or ena<ts a measure, as a measure of policy, 
 Icavinji the principle or the measure, to be 
 curried out to its lej,'itimate results. 
 *90 
 
 ♦What is a Court to duV It is its shame, 
 if pos.sessins light, it does not discern its 
 duty; and. if possessing the power, it does 
 not employ it to the purposes for which it 
 was created. It is its glory, if calling into 
 exercise the great principles at its command, 
 it so employs them as to advance the reme- 
 dies within its jurisdiction. 
 
 Such an exercise of power has been called 
 legislation — bench-made law. It is unjustly 
 so deiiominatt'd. It does not originate |>olicy, 
 but perfects it. It does not generate reforms, 
 but carries them out. It does not create 
 principles, but develops them. It is bench- 
 declared law. not inferior in authority, or iu 
 excellence, to any other. Its progress is 
 gradual, and occasions no sudden revolu- 
 tions, to the surprise, or ruin, of the inter- 
 i'sts of society. Iteing the offspring of ac- 
 knowledged principles, it commends itself, by 
 the power of those primiiiles, to who.se to 
 whom it is applied. And being tested, at 
 each step of its development, by practical ex- 
 perience, it may be modi lied, restricted or 
 amplilied. as that experience dictates. 
 
 These functions may be performed by the 
 bench ; and rightly, usefully, and, I add, con- 
 stitutionally performed. I'.ut the work must 
 be done gradually, and with a constant re- 
 gard to precedents, and an anxious reference 
 to first principles. Suddeu changes, great 
 changes, changes looking to reform, or dic- 
 tated by policy alone, belong exclusively to 
 the legislature. To the Court belongs the 
 development of pre-existing principles. 
 
 Then, what principles have we on which 
 to rest the great innovation proposed by the 
 decree? 
 
 If we look to the origin and history of ad- 
 ministration, or to the apparatus by which 
 it always has been, and now is, accomplish- 
 ed, or to the respective cpmlities of real and 
 liersonal property, we shall be led to con- 
 clusions very ditferent from those proposed 
 for our adoption. If we look to precedents, 
 and to the opinions of our own Courts, and 
 the acti(tn of our own legislature, we shall 
 perceive what surprise and revulsion of prop- 
 erty *.itere.sts, and what inconvenience in the 
 adiiiinisti-ation of t'slat«'s, the adoption of 
 that proposition would occasion. 
 *91 
 
 *.\dniinistratiou was originally confined to 
 personal property, and the course and sub- 
 
 jet ts of it have never been altered, except 
 by statute. It was performed hy the Ordi- 
 nary, originally, at his discretion: then, ac- 
 cording to a course prescribed; afterwards 
 by deputies apiK)inted by him. The duties of 
 these adnnnistrators, except when named by 
 a testat(»r, were secured by liond, according 
 to the value of the personalty. 
 
 To accomplish the purposes of administra- 
 tion, the iiersonalty vests in the personal rei>- 
 resentative, as its legal owner. Why? To 
 give him that control necessary to the per- 
 fect adnnnistration of it. Only an equitable 
 interest falls to the distributee or legatee, 
 to be enforced after the payment of debts. 
 
 This is the (piality of personalty. Is it the 
 (juality of real estate? No. That descends 
 to the heir. The title does not vest in the 
 (tersonal representative; nor has he any con- 
 trol of such property, except what may re- 
 sult from the provisions of the will. If it 
 is devi.sed, unless devised to the executor, or 
 [lower is given him to dispose of it, he has 
 no iM)wer to interfere with it, and the devisee 
 takes it without his as.sent. 
 
 This distinction, in the qualities of the 
 two species of property, forms t>ne reason of 
 the relative liability for debts. The executor 
 has the control of the one and not of the 
 other. 
 
 Are there no other reasons why land 
 should be more favored than chattels? 
 
 May it not be for the interest of infant or 
 female devisees, to have their inirtions in 
 that species of property, which is more per- 
 manent in its character, less subject to be 
 eloigned, or devastated, upon which the mari- 
 tal right of the husband of a female heir 
 would not so fully attach, and which cannot 
 be alienated without her express consent 
 after attaining majority? 
 
 .May it not be for the beneht of estates, 
 that the debts be paid primarily out of that 
 species of property which is more perish- 
 able, and more subject to be eloigned or 
 devastated; and which, as we all know, and 
 as the decree states, is more .s;ileable, and 
 is less liable to be .sacrificed. 
 
 Is nothing due to sentiment? Is the home 
 *92 
 of one's ancestors. *the place of one's nativ- 
 ity, with which all the recollections of child- 
 hood are associated, to be put on a footing 
 with vulgar chattels? 
 
 The decree, in putting real and personal 
 property upon the same footing, disregards 
 the distinctive qualities of the two .species 
 of property. Can any sagacity foresee the 
 results? 
 
 Aliens are incapable of taking real estate 
 by inheritance, but may take per.sonalty. Is 
 it not desirable to reserve, to those taking 
 under a will, that si>ecies of property to 
 which allegiance is annexed? 
 
 IIow will the proposed alteration affect 
 the widow's right to take dower by election? 
 
 Will it not augment the necessities for that 
 
 37
 
 *f)2 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 election, and call for the choice at an earli- 
 er period in the administration, when it will 
 l;e more ditiicult to make it? 
 
 Then, the decree establishes a principle, as 
 I have said, contrary to the constant cur- 
 r--^nt of professional opinion, to the practice 
 of our Courts, and to the legislation of the 
 State. As evidence that it is contrary to 
 the opinion of the profession as represented 
 by the Judges, (besides referring to what is 
 said in this very case (g) — whicli is almost 
 a decision for the case — and to what is said 
 in Laurens v. Magrath, 1 Rich. Eq. 300, which 
 is almost a decision of the question,) I have 
 only to refer to Stuart v. Carson, 1 Des. 513, 
 decided in 1796, and to the long current of 
 cases which have followed it, as Halybur- 
 ton V. Kershaw, (3 Des. 115;) Dunlap v. 
 Dunlap, (4 Des. 329;) Hall v. Hall, (2 l\IcC. 
 Eq. 269 ;) Warley v. Warley, (Bail. Eq. 397 ;) 
 North V. Talk, (Dud. Eq. 212;) Gregory v. 
 Forester, (1 McC. Eq. 329;) Goodhue v. Barn- 
 well, (Rice Eq. 240;) Pell v. Ball, (1 Speers' 
 Eq. 523 ;) and Jenkins v. Hanahan, (Chev. 
 Bq. 135.) 
 
 What is said in these cases, though it may 
 not amount to decision, gives unmistakable 
 evidence of settled opinion ; especially the 
 elaborate and most enlightened view taken of 
 the subject in Warley v. Warley, which has 
 never before, so far as I know, been dis- 
 puted. 
 
 *93 
 
 *The decree is also contrary to the prac- 
 tice of both Courts. 
 
 For some evidence of the practice of this 
 Court, I refer to the case of Swift v. Miles, 
 (2 Rich. Eq. 154.) 
 
 That of the Court of Law is more explicit. 
 The Rule of that Court requiring executors 
 and administrators, pleading plene adminis- 
 travit, to file with the plea a full and par- 
 ticular account of their administration, ou 
 oath, with an ottice copy of the inventory 
 and appraisement of the goods and chattels, 
 evidently recognizes the liability of person- 
 alty before realty. 
 
 The 22d Rule (of those adopted the 4th 
 July, 1758) directs that this be done "to 
 the end it may appear to the Court that the 
 personal assets of the testator or intestate 
 are really and in truth fully administered:" 
 — after a preamble, reciting that suits were 
 freipiently brought against executors and 
 administrators, to subject real estate of tes- 
 tators or intestates to the suing creditor, 
 and that upon plea that the personal estate 
 was fully administered, to which (admitting 
 the plea) replication was made, that testa- 
 tox', or intestate, died seized of lands, t&c, 
 which course of practise was "injurious to 
 those persons, who by devise, descent or 
 otherwise, are interested in the lands of the 
 original debtor; and by fraud or collusion 
 real assets may be subjected and made liable 
 to the payment of debts, before the person- 
 
 (g) 2 Strob. Eq. 193. 
 
 al assets are exhausted and fully adminis- 
 tered: — for prevention whereof," &c.(/i) 
 
 The 6th Rule (of those adopted in 1800) 
 requires the same account, on oath, to ac- 
 company the plea of plene administravit, "to 
 the end that it may appear to the Court that 
 the personal assets of the testator, or intes- 
 tate, are really administered, to the extent 
 pleaded." (i) 
 
 The 6th Rule (adopted in 1814) is in iden- 
 tical words. (y) 
 
 The 6th Rule (adopted in 1837) is in the 
 same words — omitting the word "personal" 
 before "as.sets," (k) probably to make the 
 Rule more perfect, by meeting and providing 
 for the case where the will charged lauds 
 primarily or equally with personalty, and 
 directed the executor to sell. 
 *94 
 
 *To what has been said, I add that the 
 deci'ee is contrary to the legislation of the 
 State ; and if the policy which the decree 
 advances is the policy of the State, the Leg- 
 islature was never aware of it. 
 
 The Statute of 1789, Sec. 20, (5 Stat. 109,) 
 prescribing the oath of an executor or admin- 
 istrator, with the will annexed, requires him 
 to execute the will "by paying first the debts, 
 and then the legacies, contained in said will, 
 as far as his (testator's) goods and chattels 
 will thereunto extend, and the law charge 
 me," and to make a true inventory of the 
 goods and chattels ; and the bond required 
 from an administrator, cum testamento an- 
 nexe, is directed to be conditioned for the ad- 
 ministration of the goods and chattels only — 
 although by the Act of 1787, such adminis- 
 trator might sell lands directed by the will 
 to be sold, without saying by whom, the pro- 
 ceeds probably being regarded as personalty. 
 
 By the 19th section of the same statute 
 of 1789, (5 Stat. 109.) power was conferred 
 on the Ordinary, which he has possessed ever 
 since, to sell personalty of testators or in- 
 testates, for payment of debts, as well as for 
 division, or to prevent loss of perishable ar- 
 ticles — yet he had no power to sell real es- 
 tate, for any purpose, until 1824, when he 
 was empowered to sell lands for division 
 only.(0 
 
 The Statute of 1842, (11 Stat. 232,) author- 
 izing ordinaries, in certain cases, to pay over 
 to executors or administrators the proceeds 
 of real estates, sold by them for division, 
 provides that this be done, "if the personal 
 estate of any (such) testator, or intestate, 
 in the hands of the administrator or execu- 
 tor, or if the assets set apart by a (the) last 
 will and testament, be insufficient to pay the 
 debts of the deceased." 
 
 We have seen that the doctrine of the de- 
 cree is unsupported by authority ; that it 
 
 (h) Miller's Comp. 4—5. 
 (j) Miller's Comp. 14. 
 (j) Miller's Comp. 22. 
 (A) ^Miller's ('omp. 34. 
 (Z) 6 Stat. 248. 
 
 38
 
 TAYLOR V. M( RA 
 
 *97 
 
 is luit diily ••(intrary to tho EiiiilisU aiithori- 
 th's. iMit idi.tiar.v to tho judicial oi)ini<m of 
 tliis State; i-oiitiary tn tlic practlLv of the 
 Courts, from the earliest times to the pres- 
 ent; contrary to the lejrislation of the State; 
 that it Confounds the wt'll detined and very 
 
 *95 
 distinct (lualities of tiie two s{>ecies of *i)roi)- 
 erty, and sacrifices interests of devisees and 
 lieirs in real estate, without reason or ne- 
 cessity; and that it lays the foundation for 
 further results, the effect of which cannot he 
 foreseen. 
 
 To this I might add that the doctrine is 
 contrary to that of other States,!'") who.se 
 condition and laws are similar to our own, 
 and whose iiolicy mu.vt, therefore, be the 
 same; but I hasten to a conclusion. 
 
 It is arijuod that when a testator disposes 
 of real and personal property, in the same 
 words, to different per.sons, his intention is 
 defeated, if the personal lejracy is taken for 
 debt, in exoneration of the devise of the real- 
 ty. This is only true, if we suppose him to 
 have drawn his will in i.urnorance of th(;^ law. 
 Like disappointments freipiently occur where 
 that is the case, and can scarcely be prevent- 
 ed. But if a testator knows that unless he 
 expressly makes real and personal equally 
 liable, the legacies must contribute before the 
 devises ; he umst intend when he gives them 
 in the same terms, that the former shall be 
 liable before the latter, and is not disappoint- 
 ed when the law takes its course. 
 
 Suppose the legal operation of his will had 
 been explained to this testator, and that he 
 still adhered to and executed his will, (and 
 this is the legal presumi»tion), where is the 
 ground for disappointment? The disappoint- 
 ment would have existed only if the legal op- 
 eration of his will had been disallowed. 
 
 After all that can be said, the general rea- 
 soning of the decree applies as well to ca.ses 
 of inte.stacy as to tho.se of testacy; and if 
 lands should be put on the same footing with 
 Iiersonalty in the one ca.se. it should in the 
 other; and who is prepared for that? 
 
 If not prepared to go so far, .nnd yet pre- 
 pared to apply the doctrine proposed to tes- 
 tate proixrty— leaving intestate to be govern- 
 ed by a different rule, have we not anomalies 
 enough in the law already, without adding 
 this to the number? 
 
 We prefer to stand where we are. and it is 
 
 *96 
 ♦Ordered, That so nuich of the decree as 
 sustains the first excei)tion of the defendant, 
 Ann Hull, be reversed, and rhat said excep- 
 tion be overruied : and that with this modi- 
 lication the decree be affirmed. 
 
 DUNKIN. C. concurred. 
 Decree modified. 
 
 3 Rich. Eq. 96 
 WII.LI.VM J. TAYLOR. Executor of Towell 
 .M<Ra. 1 »o(ias..<|, v. ^L\RV M. McRA. A. C. 
 SI'Al.N, Ilrr Committcf. MARY .McKA and 
 Jl'LIA M.RA. WILLIA.M KIRKLAND 
 and .M.VR(;aR1:T SARAH, His Wife, and 
 DINCAX .MiRA. 
 
 (Columbia. Nov. anl Dec. Term, 1S50.) 
 
 LI. Insane I'erxuns iQ=34<).] 
 
 Testator,— haviii;; a wife, who was a lunatic, 
 and graud-ehikireu, l)wt uo lawful child.— l)y the 
 first clause of his will, devised and bequeathed 
 Ins whole estate to \V. T., iu trust for his two 
 ille^itinuite children ; by the second clause he 
 declared, that if the precetliug clause should be 
 declared void by any Court in this State, au- 
 thorised so to decide, then, he irave one-fourth 
 of his estate to his two illegitimate children, 
 and the other three-fouiths to his friend and 
 executor, W. T. ; by another and the last clause, 
 he appointed \\ . T., executor, concluding,' the 
 same as follows: "to his siiecial kindness and 
 protection, I commit my beloved daughter and 
 son, and invoke for them his most kind attention 
 and protwtion." Jlcld, that the committee of 
 a lunatic wife, niiudit, under the Act of 1795, 
 elect to avoid jiift.s t<i ille^'itimate children ; 
 hut that, iu making such election, he was sub- 
 ject to the control and direction of the Court. 
 [Ed. Note.— Cited in Bouknight v. Brown. 10 
 S. C. KiS. 
 
 For other cases, see Insane Persons. Cent. 
 Dig. }j (i-J: Dec. Dig. <g=»40.J 
 
 12. ir/Z/.s- (2=:3(>75.] 
 
 That the clause, commending the illegitimate 
 cliddren to the kindness and protection of W. 
 T.. created no trust in their favor. 
 
 [Ed. Note.— Cited in Gore v. Clark. .37 S C. 
 040. K; S. E. til4. L>0 L. R. A. 405; Beatv v. 
 Richardsmi, 50 S. C. 190, 34 S. E. 7:^. 40 L. 
 R. A. 517. 
 
 Eor other cases, see Wills, Cent. Dig. § 15SS: 
 l>ec. Dig. <S=>075.] 
 
 |;!. Wills (S=>S5G.] 
 
 'ihat if the clause, devising and bequeathing 
 the whole estate to \V. T. in trust for the two 
 diegitimate children, should he declared void 
 by the Court, then. W. T. w<udd take absolutely, 
 and discharged of any trust, three-fourths of 
 the estate. 
 
 I Ed. Xote. — Eor other cases, see Wills Cent 
 Dig. S 1*171' : L>ec. i>ig. <©=3850.] 
 !4. U/7/.S- <s=5782.] 
 
 That the Court would not permit tho com- 
 mittee of the wife to avoid the gifts to the il- 
 legitimate children, as the effect of his election 
 would be, not to benefit the wife. Init only to 
 vest three-fourths of the estate in W. T. 
 
 I Ed. Xote.— For other cases, see Wills. Cent 
 I>ig. § 1>0:W; Dec. Dig. (®=>7S2.] 
 
 15 
 
 <S=>7S5.1 
 
 maiul-cliildren had no right, under the 
 
 •.t5. to avoid gifts to illegitimate chil- 
 
 li-///.. 
 
 That 
 Act of 1 
 dien. 
 
 I Ed. Note.— For other ca.ses. see Wills Cent 
 Dig. § IHCJS; Dec. Dig. <©=>7S5.] 
 
 (ni) 3 .Johns. Ch. 14N; 1 l-ai-e l«)(i- 
 Mmi.li. 201: 1 S. .V- R. 45:{ : M il & j% 
 .Ma.ss. R. 151 ; 1.3 S. & R. ;J4S. 
 
 !Tliis case is also cited in Gore v 
 S. C. ,5.37. 10 S. E. 614. 20 L. 
 and distinguished therefrom.] 
 
 *97 
 
 Clarke, .37 
 R. A. 405, 
 
 fore Dunkin. Ch., at Kershaw, June, 
 
 1S4S. 
 
 Tl'.is case will be sufliciently understood 
 
 from the decree of his Honor, the Circuit 
 
 Chancellor, which is as follows: 
 
 <&=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 
 
 39
 
 *97 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 Dunkin, Ch.— The will of rowell McRa 
 l;ears date the 11th day of Jaimary, 1S44 ; 
 and the testator died on the 19th day of 
 May, 1847. Tlie coinphiinaat is tlie executor 
 of the will, and asks that the trusts of the 
 same, as well as of the will of Duncan jNIc- 
 Ra. may be "declared and executed, so far 
 as resi)ects the estates in his hands." . The 
 devisees and legatees of Powell McRa, as 
 well as his heirs at law, are made defend- 
 ants ; but none of the other parties interest- 
 ed under the will of Duncan McRa are par- 
 ties to these proceedings. 
 
 By the first clause of Powell McRa's will, 
 his whole estate is devised to the complain- 
 ant in trust to pay his debts, and two small 
 annuities, and to support, maintain and ed- 
 ucate his two natural children, called, in his 
 will, Margaret Sarah McRa, and Duncan Mc- 
 Ra ; and "so soon as either of them become 
 of age, or marry, to convey to each of them 
 one half of my said estate, real and person- 
 al, to them, their heirs and assigns forever." 
 
 The second clause is as follows: "but if 
 the foregoing clause of this will shall be de- 
 clared null and void by any Court of this 
 State, authorized so to decide, then, and in 
 that case, I give, devise and bequeath to my 
 children, Margaret Sarah McRa and Duncan 
 McRa, aforesaid, one-fourth part of the clear 
 value of my estate, after the payment of my 
 debts, to them, their heirs and assigns for- 
 ever." And after providing for the death of 
 either of them under age, or unmarried, the 
 will proceeds: "and I give, devise and be- 
 tjueath the other three-fourth parts of my 
 said estate to my friend and executor, Wil- 
 liam J. Taylor, to him, his heirs and assigns 
 forever." The last clause appoints the com- 
 plainant executor of the will, and concludes: 
 "to his special kindness and attention I com- 
 mit my beloved daughter and son, and invoke 
 for them his most kind attention and protec- 
 tion." 
 
 Powell McRa had been separated from his 
 wife for more than thirty years ; and on the 
 
 *98 
 
 Gth March, 1817, complete and mutual *re- 
 leases of all conjugal and marital rights had 
 been, on valuable consideration, executed, re- 
 corded, and carried into effect ; a copy of the 
 instrument was adduced at the hearing, but 
 was not furni.shed to the Court. John Sin- 
 gleton, the father of Mrs. McRa, was one of 
 the parties to the deed, and Duncan McRa, 
 the father of Powell McRa, was a subscriliing 
 witness. Among other provisions of the deed, 
 I'owell McRa conveyed thirty slaves to John 
 Singleton, in trust for Mrs. Mary Martha ^Ic- 
 Ra, his wife. Within the last few years, Mrs. 
 McRa has been found of unsound mind, and 
 the defendant, Albertus C. Spain, appointed 
 her committee. The answer of the committee 
 submits, that the testator, "having a lawful 
 wife, to wit, the said Mary Martha McRa, 
 then living, all gifts or bequests for the ben- 
 40 
 
 efit of his natural children beyond one-fourth 
 part of his estate, are null and void, by the 
 Act of 1795 ; and that the remaining three- 
 fourths are either distributable among IiIkS 
 heirs at law, and next of kin, or vest in the 
 said Mary .Martha McRa, widow of the said 
 Powell Mclfa." 
 
 The Act of 1795, (5 Stat. 271.) has recently 
 received the deliberate consideration of the 
 Court, in the case of Hull v. Hull, (2 Strob. 
 Eq. 174,) at 'Columbia, in May, 1848. "The 
 general scope and intention of this Act," says 
 the Court, "are very evident. Its provisions 
 were intended, so far as the Legislature could 
 safely interpose for that purpose, to prevent 
 a man who had forgotten his domestic duties, 
 from squandering his property upon rhe ob- 
 ject of his perverted affections, to the wrong 
 and injury of his family; and by depriving 
 him of the means of rewarding the associates 
 of his vitiated appetites, or providing for 
 their progeny, to discourage both him and 
 them from entering into such immoral and 
 pernifiious connexions." The Court after- 
 wards say: "It was long ago determined, ia 
 Owens V. Owens, (MS.) that the will of a tes- 
 tator in favor of his mistress or illegitimate 
 children, was a good and valid will as to all 
 the world, except his lawful wife and chil- 
 dren ; and so far has this doctrine been car- 
 ried, that in Breithaupt v. Bauskett, (1 Rich. 
 Eq. 405,) it was held by Chancellor Harper, 
 that the election to avoid it was so complete- 
 ly personal to these parties, that the priv- 
 
 *99 
 ilege *expired with the life of the wife, and 
 could not be exercised by her executor. The 
 instrument is not void, but voidable," &c. 
 
 Many of the circumstances of this case il- 
 lustrate the propriety of the decision in Breit- 
 haupt V. Bauskett. The right to avoid the 
 will or deed should be subject to the personal 
 discretion of the injured party. "The object 
 of the Act," say both Chancellor Harper and 
 the Court of Appeals, in Hull v. Hull, "was to 
 provide for the personal support of the wife 
 and legitimate children." These parties were 
 separated by mutual consent in 1817 ; and 
 ample support was, by the terms of the deed 
 of separation, secured to the wife ; at least 
 she, and those most interested in her happi- 
 ness, were willing so to consider it. The 
 property settled, passed into the possession 
 of her trustee, and so remained. It was said 
 at the bar, that the illicit connexion of the 
 testator with the mother of his illegitimate 
 children did not commence until seven years 
 after the separation from his wife. By the 
 terms of the settlement of 1817, the wife 
 released and renounced all claim which 
 might accrue to her, on the death of her hus- 
 band, to any part of his estate. It is not 
 necessary to determine how far the deed is 
 obligatory on the wife ; but it would be a 
 violation of the well settled principles of 
 this Court to permit her to avoid the will, 
 without bringing into the estimate of her
 
 TAYLoIl V. McRA 
 
 *l<t2 
 
 liusi iiiid's estate, the iimperty settli'tl upon 
 her l).v the deed of 1M7. Heiii;; discovert, she 
 oufrht to have the privih'j^e of (h'terinliiiii;; 
 wliether that deed shoiihl stand as the final 
 adjustment of lier ri;.'hts in tlie estate of her 
 hnsliand. But Iieinix now, l).v the act of (iod, 
 c'iviliter niortna. lier li.L'ht to avoid the will 
 is at least suspended. 
 
 lint ar the time of the death of I'nwell 
 McUa, in 1S47. he left, hesides his widow, 
 two ^rand ehildren, the issue of a deceased 
 son, who are Infant defendants. On their 
 hehalf it was insi.sted that. alth<»uj:h not 
 within the strict letter of the Act of 17!)."), 
 their case was within the mischief intended 
 to be prevented !)y it ; and that the terms 
 shonld he con.stnied to include i^rand chil- 
 dren. On this point, the opinion of Chancel- 
 lor Harper, in Smith. Kx'r. Tarr, v. Iloates 
 
 *100 
 
 et a!.. (.MS.) at Charleston, in January, *l.sii!), 
 is very direct; and is reconuuended as well 
 by the reasoning as by the authority of his 
 name. The testator had left the .greater part 
 of his property to two illesritimate children ; 
 and he left al.so a legitimate ^crand child. 
 The bill was tiled by the executor to obtain 
 the direction of the Court, and the question 
 was, whether the case fell within the provi- 
 sions of the Act of 17!>r). "The Act," says the 
 Chancellor, "speaks oidy of lawful children: 
 but it is contended tiiat the case of grand 
 children comes within the reasons of the Act, 
 and the mischief to be remedied ; and cases 
 have been cited to shew that, in the coristruc- 
 tion of wills, the term children has often 
 been taken to mean ^'rand children. It is ad- 
 mitted, however, that such is not the natural 
 si>,Miification of the word; but that, in the 
 cases where it has bi'cn so taUcn, it was 
 because the intention so ro use it nmst be 
 necessarily inferred from the context, or 
 from the circumstance that there were no 
 children to whom it could be applied. But 
 there is no such necessity in construing: the 
 Act of the Ix'gislature: the Legislature may 
 have intended the ca.se of children alone. 
 There is nothing ambiguous in the term to 
 authorize me to resort to construction, de- 
 rived from the spirit and objects of the Act. 
 If the words of a .statute are i)lain, the 
 words nnist govern; though it may seem to 
 us that an analogous case, equally re<iuiring 
 a remedy, is left unprovid«'d for. Reasons 
 may l»e conceived, however, for making a dis- 
 tinction between the case of children and 
 grand children. IJrand children must have 
 had a mature parent, to whom the duty of 
 providing for them more imme<liately apper- 
 tained, and who may have had abilily to do 
 so."' The claim of the grand chikl was, ac- 
 cordingly, rejected ; and this decision has 
 bei-n more than once adverted to by the 
 App(>al Court without dis.sent, although the 
 point has ui'ver been the sui>jcct of direct 
 adjudication. 
 
 But, from another vi(>w, it seems to the 
 <"ourt very inunaterial, either to the wife 
 or to the grand children of the testator, 
 whether the first dau.se of the will be. or be 
 not, obnoxious to the provisions of the Act 
 of 17'.>."). In the second clause the testator 
 has provided for the contingency: and in the 
 
 ♦101 
 event that the devises *and iuMpiests should 
 only be valid t<» the extent of one-fourth of 
 his estate, he (h'vises and betpieaths the re- 
 maining thri'e-fourths to his friend, the com- 
 plainant. It is true that in a sul)se<iuent 
 clause the complainant is also appointed ex- 
 ecutor, and tl-.at the children are "connnitted 
 to his special care and protection." It was 
 faintly argued that the.se words created a 
 tru:.t. But the language of the will is too 
 explicit to be misundeistood. Three-fourths 
 of the estate are devised to the conqtlainant, 
 "his heirs and assigns, forever," but "charged 
 with the maintenance and support of the 
 testator's sister, Margaret Ilouseal. and an 
 ainuiity of one hiuidred dollars besides, from 
 the period of his death." In all other re- 
 spects, and for all other purposes, the estate 
 was ab.solute in the devi.see, and the disposi- 
 tion of it left entirely to his discretion. See 
 2 Story's Eq.. § 1070. It was then argued 
 that this provision was a fraud on the law_ 
 In this connection the language of the Court., 
 in Hull V. Hull, is pertinent. In considering 
 the Act, with reference to its general inten- 
 tion, it must be remembered that there are 
 few rights more valued by the citi/en, or 
 more universally respecteil by the Iv<'gisla- 
 ture. (of wiiich we have abundant evidence 
 in this very statute.) than the jus disponendi :. 
 and no construction in abridgment of tbi.s 
 right can be conformable to the spirit and in- 
 tent of this Act, except where the abridgment 
 arises necessarily from the application of the 
 Act to the cases which it describes, or be- 
 comes neces.sary in carrying its provisions 
 into elTect, as provisions of a remedial .stat- 
 ute. The Act declares the beciuest to be void 
 so far as it exceeds one-fourth of the testa- 
 tor's estate. It is not provided that the sur- 
 plus .shall belong to the wife and children. 
 If there is a residuary clause to a stranger, 
 as was held in Breithaui>t v. Bauskett, the 
 suriilus would pa.ss, under that residuary 
 clause, as of any other property not effectual- 
 ly given. If the policy of the law were not 
 sulhciently vindicated by declaring void, to a 
 certain extent, the intended bounty to the 
 illegitimate children, it is the duty of the 
 Legislature, not of the Court, to abridge the 
 jus disiKtnendi on the part of the citizen. If 
 no trn.st is established, how can the bequest 
 
 *102 
 to the conqilainant be regarded as a *frauJ 
 ui)on the law".' No one doubts the right of 
 the testator to leave his entire estate to a 
 stranger, regardless of the claims of conjugaL 
 or parental ties. His Juotives, however urr- 
 
 41
 
 no2 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 worthy, however inexcusable, are not the sub- 
 ject of inquiry. This riglit would not be im- 
 paired or forfeited, because he announces on 
 the face of the will his abhorrence of the 
 law which has checked the current of his 
 Iiounty in a particular direction. If the pro- 
 visions of the will are within the prescribed 
 limits ; if no more is given to the illegilimnte 
 children than the law allows ; if the law has 
 not declared that the surplus shall be devis- 
 ed to the wife and children ; or, as in the Act 
 of 1841, that it should be held for the benefit 
 of the distributees, or next of kin ; then it is 
 Impossible to declare that the bequest to the 
 complainant is a violation of law or a fraud 
 upon the law. 
 
 But, as has been already declared, the 
 provision in behalf of the illegitimate chil- 
 dren is not open to impeachment at the in- 
 stance of any of the parties before the Court. 
 
 It is ordered and decreed that the com- 
 plainant execute the will of Powell .McKa, 
 deceased, according to the principles of this 
 decree. Parties to be at liberty to apply for 
 such further orders as may be deemed neces- 
 sary. Each party to pay their own costs ; 
 those of the complainant to be a charge on 
 the estate of his testator. 
 
 The defendants, Albertus C. Spain, on be- 
 half of Mrs. Mary Martha McRa, and the 
 infants, Mary and Julia McRa, appealed 
 from so much of his Honor, the Chancellor's 
 decree, as established the entire validity of 
 the gifts, legacies, devises and bequests to 
 their co-defendants, Mary Kirkland and Dun- 
 can McRa, or on failure of the same, to the 
 conq)lainant ; and they moved that the said 
 decree be reformed in this respect — so as to 
 restrain the said gifts, legacies, devises and 
 beiiuests, to one- fourth part of the clear 
 \ alue of the testator's estate ; and further, 
 that the right of the appellants to the re- 
 maining three-fourths of the said estate be 
 established and declared by the decree of 
 this Honorable Court. In support of which 
 motion, they relied upon the .following 
 grounds.. 
 
 *103 
 
 *1. That the said gifts, legacies, devises 
 and bequests, are clearly void, under the 
 Act of 1795, as against the testator's widow, 
 Mrs. Mary Martha ^IcRa, for the excess over 
 one-fourth part of the clear value of his es- 
 tate: and that the circumstance of her being 
 a lunatic does not deprive her of the right to 
 avoid the said gifts, legacies, devises and 
 beipiests, but only of the discretion to waive 
 her objection to them ; and that it is both the 
 right and duty of her connnittee to insist up- 
 on the said objection. 
 
 2. That the settlement of 1817 is neither 
 obligatory and binding on the widow, Mrs. 
 McRa ; nor, if it were, does it impair her 
 right to avoid the gifts, legacies, devises and 
 bequests aforesaid, under the Act of 179.j. 
 
 o. That by the well settled rules of cou- 
 42 
 
 struction, the words "lawful children," in 
 the Act of 179.5, must be construed to mean 
 "issue," and to include all legitimate lineal 
 descendants; and that the infant defendants, 
 Mary and Julia jNIcRa, are, therefore, clearly 
 entitled, in their own right, to the protection 
 of the Act of 1795, and to avoid the gifts, 
 legacies, devises and bequests aforesaid, as 
 to all but one-fourth part of the clear value 
 of the testator's estate. 
 
 4. That the devise over to the complainant, 
 in the event of the legacies and devises to the 
 testator's illegitimate children being declar- 
 ed void, is a phiin fraud upon the law, and, 
 therefore, a nullity; and that were it other- 
 wise, yet the gift is plainly in trust for the 
 same children, and, therefore, void, for the 
 same reasons which invalidate the direct gift. 
 
 5. That his Honor erred in directing the 
 costs of the defendant, A. C. Spain, the c-om- 
 mittee of Mrs. INIary Martha McRa, and of 
 the infant defendants, Mary and Julia McRa, 
 to be paid by themselves. 
 
 Mo.ses, for appellants. 
 
 DeSaussure, Chesnut, Smart, contra. 
 
 WARDLAW, Ch., delivered the opinion of 
 the Court. 
 
 The circuit decree, in this case, is placed 
 *104 
 on the grounds, 1st, *that the committee of a 
 lunatic wife has not the privilege to avoid, 
 under the Act of 1795, the gift, by a testator, 
 to his illegitimate children, for the excess of 
 the subject of gift beyond one-fourth of the 
 clear value of his estate ; and 2d, that the 
 only effect in this case of avoiding the gift, 
 for such excess, would be to vest such excess 
 in the plaintiff, who is a stranger to any 
 trust. 
 
 To establish the doctrine contained in the 
 first ground might do no great mischief in 
 this particular case, but in many conceivable 
 cases, would produce great hardship and in- 
 justice. If a wife, having no separate es- 
 tate, who had been driven to madness by 
 the infidelity and brutality of her husband, 
 were deprived, by his devise to his bastards, 
 of the means of food and raiment, and left to 
 depend upon the charity of the world to sup- 
 ply her destitution, could we, possessing the 
 reason and sensibilities! of human nature, 
 venture to hold that the committee, under 
 the supervision of tliis Court, might not avail 
 himself in her behalf of the provisions of 
 the Act of 1795'? In the parallel disability 
 of infancy, it is the personal privilege of the 
 infant to avail himself of the plea of infancy 
 to avoid a contract, and yet hisi guardian 
 may resort to this defence in the infant's 
 behalf. In the case of Hill v. Hill, (3 Strob. 
 Eq. 94,) this Court allowed the committee 
 of a lunatic wife to assert her equity to a 
 settlement out of her estate, and the present 
 case is within the same principle. In Par- 
 nell V. Parnell, (2 Phil. 158.) Sir Wm. Scott 
 adjudged, that the committee of a lunatic
 
 TAYLOR V. McRA 
 
 noi 
 
 may institute procppdinps against the wife of 
 tilt' lunatic for adultery. It would lie a j;reat 
 reproaeli to this Court, which professes in 
 a peculiar manner to protect the ritrhts of 
 infants, married women, and lunatics, to add 
 additional iirivation to loss of mind — the 
 greatest attliction of rrovidence. 
 
 But this priviU'f,'e. by the committee of a 
 lunatic, to avoid fiifts under the Act of 179"). 
 must be exercised under the supervision of 
 the Court, which will in a proi)er case con- 
 trol his election. In general, where it Is 
 doubtful whether the interests of the wife 
 will be promoted by such intervention on the 
 
 *105 
 
 part of her com*mittee. the Court will direct 
 the proper inquiry to be made by its pi'oper 
 otlic-er. This inquiry will usually be con- 
 fined to pecuniary interests. This Court does 
 not determine questions according to the 
 factitious dictates of a code of honor, or deli- 
 cacy, but according to settled rules of law and 
 honesty. Still, in the present case, many 
 reasons might be found to induce the Court 
 not to interfere in behalf of the wife, at least 
 sua sponte. She is amply provided for ; 
 she was separated from her husband for 
 thirty years before the execution of the will ; 
 in 1817, her father, interfering in her behalf, 
 received from the husband twenty-four ne- 
 groes for her sole and separate use. and cove- 
 nanted in her behalf, and with her written 
 aiiprobation, that she should make no further 
 claim upon the husliand's estate. It may 
 be true that, in this State, under the decisions 
 in Reid v. Lamar, (1 Strob. E(i. 88.) and like 
 cases, this covenant Avould impose no legal 
 obligation on the wife, although it might be 
 different in England, where the wife has the 
 power to alien and incumber her separate es- 
 tate. Yet it would hardly be consistent with 
 good faith on the part of the wife, to disturb 
 now a family arrangement, which has been 
 executed for thirty years, the effect of which 
 disturbance would be to throw heavy respon- 
 sibilities on her father and trustee. It is 
 unnecessary, however, to conclude any thing 
 on this point, as the decree must be sustained 
 on the other ground taken by the Chancellor. 
 We will not permit the committee here to 
 avoid this gift to the testator's illegitimate 
 children, for the necessary result would be 
 to vest the estate in the plaintitT. It has 
 been strongly urged, that the alternative de- 
 vise to the idaintift". is a mere fraud upon 
 the Act of 1795, and that this appears by the 
 will. It is not prefendi'd that there is jiny 
 secret trust on the part of the plaintiff for 
 the illegitimate children, and it is conceded, 
 that the gift to the iilaintitl: makes him the 
 absolute proprietor of tiie estate, unless the 
 terms of the will create an express trust. 
 The course of Courts of Ecpiity, of late years, 
 has been against the c-onversion of legatees 
 into trustees, by vague exi)ressioiis of wi.shes. 
 or recommendation, in the disposition of the 
 
 •106 
 estate; (Sale v. ♦Moore, 1 Sim. 534; Mere- 
 dith V. Ileneage. lit. r>42 ; Wright v. Atkyns. 1 
 Tur. & Russ. 14;{t ; and here, there is nothing 
 more than a comniendation of his children, 
 by the testator, to the kindness and protec- 
 tion of his executor, without reference to the 
 estate, and after a contingent gift thereof in 
 fee. It is said, however, that the gift to the 
 plaintiff, being on the contingency, expressed 
 in the will, that the juvvious devise to the 
 illegitimate children should be declared void 
 by any Court of this State, authorized so to 
 decide, affords indubitable evidence of the 
 purpose of the testator, to evade the Act of 
 1795. It may be conceded, that such was the 
 purpose of the testator, if, to keep the pro- 
 visions of his will out of the operation of 
 the Act can be called evasion; but surely it 
 is not the province of the Court to usurp leg- 
 islative power, and extend the Act to cases 
 not within its enactments. The Act does not 
 declare void, gifts to a stranger by an adul- 
 terer, or father of bastard children, and it 
 may be well doubted, whether such abridg- 
 ment of the jus disponendi, would ever have 
 met with the favor of the legislature. Nor 
 does the Act declare, even in cases where the 
 gift is voidable, that the void excess shall go 
 to the wife and children, only that the gift 
 to the mistress or bastards, shall be void 
 for the excess above one-fourth of the clear 
 value of the donor's estate. Its great object, 
 is to brand and punish incontinence in par- 
 ticular cases, by restricting, to a limited ex- 
 tent, bounty to a mistress, or bastards. If, 
 here, where the devise is not prohibited by 
 the statute, we must nevertheless pronounce 
 it void as an evasion, we in effect pronounce 
 that an adulterer, or father of bastard chil- 
 dren, having a wife, or lawful children, must 
 give three-fourths of his estate to his wife or 
 children. 
 
 It is objected to our conclusion, that we 
 ratify a scheme by which the purpose of the 
 Act of 1795 may be always defeated. But 
 we do no more here, than we do in every 
 case where we give construction to a statute. 
 It is the duty of Judges to expound and not 
 to make the law; to declare what cases are 
 within, and what without, legislative enact- 
 ments; but not to include within these enact- 
 ments, upon our notions of policy, the cases 
 
 *107 
 ♦omitted by the Legislature, whether by acci- 
 dent or design. It is for the Legislature and 
 not for us to correct any supposed mischief, 
 in the present state of the law, on this and all 
 subjects. 
 
 In Wadlington v. Kenner, OIS.) and In 
 two circuit opinions of Chancellor Harper, 
 one cited in the decree [B. v. B.. 1 Rich. Eq. 
 4()5.1 and the other reported [Ford v. Mc- 
 Ebray] 1 Rich. Eq. 474, it has been decided 
 that grand children could not interpose to 
 avoid gifts under the bastardy Act, and we 
 acquiesce in these decisions. 
 
 43
 
 *107 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 The fifth ground of appeal is sustiiinetl, 
 and it is ordered that tlie costs of A. C. 
 Spain, committee, and of Mary and Julia 
 McRa, be paid by the plaintiff out of his 
 testator's estate. 
 
 In all other respects the decree is affirmed 
 and tlie appeal dismissed. 
 
 JOHNSTON and DUNKIN, CC, concur- 
 red. 
 
 DARGAN, Ch., dissenting. 
 
 I do not concur with the majority of this 
 Court in the decree which they have render- 
 ed. The testator, Powell McRa, having a 
 lawful wife and grand children, but no 
 lawful children, gives the whole of his 
 estate, in trust, to pay his .debts and two 
 .small annuities, and to support, maintain 
 and educate his two natural children. Mar- 
 garet S. and Duncan McRa ; and so soon 
 as either of them becomes of age or mar- 
 ries, to convey to each of them one-half of 
 his estate, real and personal, to them, their 
 heirs and assigns forever. The will then 
 provides, that if the foregoing clause of this 
 will shall be declared null and void by any 
 Court in this State, authorized so to de- 
 cide, the testator gives to the said illegiti- 
 mate children one-fourth part of the clear 
 value of his estate, real and personal, after 
 the payment of his debts, to them, their 
 heirs and assigns forever. In this event, he 
 also gives the remaining three-fourths of his 
 estate to the complainant ; and after nomi- 
 nating the complainant as his executor, he 
 concludes as follows: "To his special kind- 
 ness and attention, I commit my beloved 
 daugliter and son, and invoke for them his 
 most kind attention and protection." 
 
 Such is the will. In its construction, sev- 
 *108 
 eral questions have *a risen. I concur in the 
 opinion that grand 'children have no right to 
 vacate the illegal provisions of a will in 
 favor of illegitimates. If grand children 
 were so entitled, by a parity of reasoning 
 and the same wide construction, remote de- 
 sc-endants would have the same right. Such 
 an interpretation would comport neither 
 with the language of the Act nor its ob.iects. 
 
 I think, too, that the derision in Breit- 
 haupt V. Bauskett is correct, and that the 
 right to vacate a deed or will, which is in 
 violation of the provisions of the Act of 
 1795, is personal to the wife and lawful chil- 
 dren ; such a di.sposition is valid against all 
 the world Itut them ; and their riglit is so 
 far personal, that it does not survive to the 
 personal representatives of the wife and law- 
 ful children. But when it is asserted that 
 the right is personal, in a sense that would 
 forbid a lunatic wife or child from making 
 the claim, or its being made in tlieir be- 
 lialf, I differ entirely. Such a conclusion is, 
 in my judgment, a most unwarranted infer- 
 ence from the decisions; which, when they 
 
 44 
 
 declare that the right is personal, nt^an 
 only that it is personal in the sense of the 
 legal maxim, "actio personalis moritur cum 
 persona." This clearly is the doctrine, and 
 none other. In tlie circuit decree it is de- 
 cided that the lunatic wife of Powell McRa 
 is civiliter mortua ; and being civiliter mor- 
 tua, she cannot exercise her personal dis- 
 cretion in asserting her claim, and that this 
 Court cannot do it for her. I am not aware 
 that a lunatic, in conse<]uence of lunacy, 
 loses any of his civil rights besides that of 
 making contracts and testamentary disposi- 
 tions of his property. The male lunatic 
 cannot exercise any of his political rights 
 and franchises. He has the same rights of 
 person and of property as if he was sane. 
 In the case of an election being necessary, 
 this Court will exercise the right in his 
 behalf. I will not discuss this subject fur- 
 ther, but content myself with thus entering 
 my protest against the doctrine of the decree 
 on this point. 
 
 I concur in the opinion that, if the com- 
 plainant takes the three-fourths of the e.s- 
 tate given to him, he takes it discharged of 
 any trust. If there were a direct and secret 
 understanding between the testator and him- 
 
 *109 
 self that he should hold for the *benefit of 
 the illegitimates, on proof of that, the gift 
 to him should be vacated on the application 
 of the wife. But, as regards Taylor, no such 
 fraudulent intent or violation of the Act ap- 
 pears upon the face of the will. No trust 
 is created nor legal or equitable obligation 
 imposed. The moral obligation he might or 
 might not fulfil, as his own sense of duty or 
 honor should dictate. 
 
 But the difficulty with me lies in another 
 view of the case. The lunacy not being an 
 impediment, the widow of I*owell ]\IcRa has 
 a right, under the Act of 1705, to vacate the 
 gifts to the illegitimate children, for the ex- 
 cess over one-fourth of the clear value of 
 the estate. But, by the decree in this case, 
 Taylor's right, under the will, is superior to 
 that of the wife: while confessedly, and by 
 the decision in Owens v. Owens, approved in 
 this case, the right of the illegitimate chil- 
 dren is superior to that of Taylor. The wife 
 and lawful children are preferred to the Il- 
 legitimates; the illegitimates are preferred 
 to Taylor; and Taylor is preferred to the 
 wife. Here is a circle. In this conflict of 
 claims, why sliould the preference be given 
 to the person claiming under tlie executory de- 
 vise? He is not entitled until the wife comes 
 into the Court and obtains a decree vacating 
 the provisions of the will. The wife must 
 have a decree before Taylor's right arises. 
 And in the self same decree in which lier 
 right is accorded to her, it is snatched away 
 and given to another. Tliis is keeping the 
 word of promi.se to the ear, and breaking it 
 to the hope. 
 
 I protest against the decree, because it
 
 Ml l.Lli.AN \. WALLACE 
 
 *ir2 
 
 puts a coiistniotion ui»oii t\w Art tif 1T!I."», 
 by whidi the Act stands iviii'aled, niul is 
 virtually expunged from tiie statute book. 
 Tliis, I am aware, is strong lanijuage. but 
 is well warranted by an interpretation 
 which enables any well advised or acute 
 testator to defeat entirely the provisions 
 of the Act. When this decree is reiiorted. it 
 will be a publication to tiie world of a form, 
 under the sanction of this Court, by which 
 rights of wives and children, under the Act 
 of 17n."», ma.v be completely frustrated. The 
 .sagarious and well informed will l»e thus 
 
 ♦110 
 enabled to evade the law. wiille *wills 
 drawn by the ignorant, or without the ad- 
 vice of counsel, will still fall umler its opera- 
 tlcMi. Will any wife, or lawful child, here- 
 after, in the case of a will after tliis form, 
 come into this Court to vacat«' its unlawful 
 lirovisions in favor of the concubine and the 
 illegitimates? Cui bono? For what purjjose 
 should they come? The only effect of their 
 application, and a decree in their favor, is 
 to give the property to a remainder-man, 
 who may keep it himself, or bestow it where 
 the law has not allowed the testator to be- 
 .stow it. Strange, inconsistent, absurd doc- 
 trine ! I that the only effect of a decree of the 
 Court of Equity in favor of a person, is not 
 to give that person the benefit of the decree, 
 but instantly to take it away. Rut why 
 should the wife and lawful children spend 
 nione.v and time in unnecessary litigation, 
 and fruitlessly expose to the gaze and com- 
 ment of the world their domestic sorrows 
 and wrongs? They come into Court with 
 the Act of 1795 in their hands. They bring 
 their claims within its provisions. The 
 Court says, yes; you are entitled to vacate 
 the illegal disi>ositions of tlie will, and here 
 is a decree in your favor ; and then, as it 
 were in mockery, the Court says, this de- 
 cree in your favor is but the condition on 
 which the property is to be taken from you. 
 
 We have a maxim in our law-books, as 
 old as the common law it.self. th;it it is the 
 duty of Courts in their interpretation of 
 statutes, .so to construe them, as to advance 
 the remedy and suppress the inisdiief. The 
 decision, in this case, withholds the remedy, 
 and provides a way in wliich the misciuef 
 may be iierpetrated with impunity. 
 
 This Act of ITO.j, consisting, as it does, 
 of but a few lines, has given rise to nuich 
 ditlicult and embarrassing litigation. Ques- 
 tions have risen under it which no human 
 sagacity could havo foreseen. The Courts 
 have often been called on for its construc- 
 tion. Decision after decision has been made, 
 and interpretation piled upon interi)retation. 
 until the Act is covered all over by interpre- 
 tations and judicial conunentaries. One in- 
 terpretation has lieen made the platform 
 of another. Inferences are made from the 
 language of the commentary, instead of the 
 
 *111 
 words of *the Act, the original complexion 
 of which is lost sight of. We have gone on 
 in this way. until we are involved by this 
 case in a iterfe<'t labyrinth. whi<h we may 
 break through but cannot unravel. The Act. 
 anil all its tall superstructure of judicial 
 construction and conunentary. have now fall- 
 en down together; for the effect of the pres- 
 ent decision is. in substance, to declare that 
 there is a form by which its provisions may 
 be defeated and .set at naught. 
 .\.l)peal dismissed. 
 
 3 Rich. Eq. Ill 
 
 FlJAXfLS MILIJ(;A\ ct :d. v. DANIEL 
 
 WALLACE. 
 
 (Colurnliia. Nov. and Dec. Term, 1850.) 
 
 [JJijinlii c=:;!M).i 
 
 1 »«t<ii(l;uir. a Commissioner in Equity, bav- 
 ins: fmids of tlio Court tu the amount of about 
 .'Sl.(i(KK in Ills hands, was ordered by the Court 
 to invest the same at interest, on ^ood personal 
 socurit.x': <iii(> .M. ciwcd tiic defendant, on his 
 private account, ahoiit SL<i<iO. ami ilefendant. 
 as Couunissioner, loaned .M. the Ij^l.UlH), on bund 
 and personal security, retaining, by M.'s of- 
 fer, out of that sum, the aniount that M. owed 
 the defendant. .\I. and his surety afterwards 
 liecanie iasohent. ami uothinir coidd l)e collectetl 
 on his t)on(l:— //rW, that defendant had not in- 
 vested the Ji^l.liOO in conformity to the order of 
 (^ourt. and that he was liable for the whole 
 amount thereof, with interest. 
 
 |Ed. Xote.— ( "ited in Spear v. Spenr. Rich. 
 E(l. I'.lS : Nance v. Nance. 1 S. C. 220. 221. 
 
 For other cases, see Equity, Cent. Dig. § S60: 
 Dee. Dig. <®=j:U)G.] 
 
 Before Dargan, Ch.. at Tnion. .Tune. l^^O. 
 
 So much of the Circuit decree us relates 
 to the point on wliiih this ca.se was decided, 
 is as follows: 
 
 Dargan, Ch. — Daniel Wallace, the defend- 
 ant, as Conuuissioner in Equity for Union 
 district, was in possession of a fund belonging 
 to the complanants. called the Mulligan fund. 
 At June Term, ls."U;. this fund, amounting 
 to one thousand five hundred and eighty- 
 eight dollars and seventy-seven cents, lieing 
 cash in the hands of the Comnussioner in 
 Eipiity, was, by an order of the Court, direct- 
 ed to be invested at interi'st ^m good i>ersonal 
 securities. The Commissioner was ordered to 
 make the investment. In June. is;'.7. in the 
 execution of this order, he took the bond of 
 Daniel A. Mitchell, as principal, and om' 
 
 *112 
 •William T. Crenshaw, as surety, for the 
 amount of the fund. The reason the defend- 
 ant assigns for not having sooner made the 
 investment, is, that sucii was the abundance 
 of money, that he was unable to effect a loan. 
 At June Term. 1S40, the Comuussiouer re- 
 liorts to the Court, that altluaigh he cou- 
 sid«>rs the parties to the bond. (Mitchell and 
 Crenshaw.) to whom the fund was loaned, as 
 solvent, yet, as they were somewhat embar- 
 rassed with debt, he rec»unmends that an or- 
 
 ^=»For other cases see same topic and KEY-NU.MBEK iu all Key-Numbered Digests and Indexes 
 
 45
 
 ^112 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 (ler be made, requiring additional security, ] 
 and that on failure to comply within a rea- 
 sonable time, the bond should be put in suit. ! 
 
 The order was passed, and in pursuance 
 thereof, one Giles N. Smith was given as ad- 
 ditional security to the bond. 
 
 At June Term, 1842, the defendant reported 
 that he was "not well satisfied that the se- 
 curities to the boiid were sufficient," and rec- 
 ommended that an order be passed, requiring 
 that a new bond, with two good and sutrt- 
 cient securities, be given within a reasonable 
 time, and in default thereof, that the bond be 
 put in suit. The Court made an order accord- 
 ing to the recommendation of the Connnis- 
 sioner. Mitchell was served with a notice of 
 the order, and failing to comply, the bond 
 was lodged with an attorney for suit, and a 
 writ was issued on the 25th February, 1843. 
 Before judgment was recovered, Mitchell and 
 Smith had confessed judgments to more fa- 
 vored creditors ; the former to a very large 
 amount. The property of the obligors to the 
 bond has all been sold by the sheriff, with the 
 exception of some negroes carried off by 
 Mitchell from the State. None of the pro- 
 ceeds of the sale has been applied to this 
 claim, which has been utterly lo«t by the in- 
 solvency of the parties. 
 
 • The complainants have filed their bill 
 against the defendant, for the purpose of 
 making him liable for not having invested 
 the fund in conformity with the order of the 
 Court. 
 
 They allege that Daniel A. Mitchell was in- 
 debted to the defendant, and that the de- 
 fendant, instead of loaning the fund, kept it 
 himself, and gave up to Mitchell the bond or 
 note on which he was privately indebted to 
 the defendant, and took his bond, with Cren- 
 shaw as surety, for the amount of the Mulli- 
 
 *113 
 gan *fund. The only evidence on this point, 
 is that which is afforded by the defendant's 
 answer. The defendant was particularly in- 
 terrogated in regard to this transaction, and 
 the facts as he states them, are to be re- 
 garded as the only evidence by which the 
 question is to be adjudged. The defendant 
 denies that Mitchell was, at the time, indebt- 
 ed to him the whole amount of the Mulligan 
 fund. The precise amount of Mitchell's in- 
 debtedness to him, he does not remember. 
 He has no means now of ascertaining, but 
 believes that it was something over one thou- 
 sand dollars. He did keep to himself as much 
 of the Mulligan fund as was equal to the 
 debt which Mitchell owed him, turned over 
 to him the balance in cash, and took his bond, 
 with Crenshaw as surety, for the whole 
 amount of the Mulligan fund. He had then 
 on hand that fund in cash, in the specific 
 bills in which it had been paid to him. He 
 was not anxious to realize his debt on Mitch- 
 ell at that tme. It was Mitchell's offer to 
 discount, in the loan, the amount that he 
 owed to the defendant. According to the de- 
 
 46 
 
 fendant's best recollection, there was no pre- 
 vious agreement to this effect between Mitch- 
 ell and the defendant; nor was the collection 
 of his own debt against Mitchell, any induce- 
 ment in negotiating the loan to him. This is 
 substantally the defendant's statement of 
 facts. 
 
 The question is, whether this was an in- 
 vestment according to the order of the Court. 
 I am far from thinking that the bona fides 
 of the defendant is to be impugned in this 
 transaction. His character for official and 
 private integrity, and his present high posi- 
 tion, would forbid any such conclusion. Nor 
 is there any thing in the facts, as they ap- 
 pear to the Court, from which such an infer- 
 ence could be deduced. But the question is, 
 whether he has followed the terms of the or- 
 der, in investing the Mulligan fund: and 
 whether the policy and settled principles of 
 the law do not forbid that the financial officer 
 of the Court should be permitted to mingle 
 up his own private money transactions with 
 those of his official trust. I am of opinion, 
 that he did not pursue the terms of the order 
 in the investment. He did not invest the 
 Mulligan fund, except in part. To the amount 
 
 *114 
 of *a thousand dollars or more, he invested 
 his own debt or claim against Mitchell, and to 
 that amount retained the Mulligan fund in 
 his own hands. 
 
 There may not have been, on the part of the 
 Commissioner, the slightest want of honesty 
 of purpose in this transaction. Let that be 
 conceded. But that is not the question. It 
 is necessary that the financial department 
 of the Court should be kept pure, and without 
 suspicion. It is important that the officer 
 in charge of it, should not be exposed to the 
 temptation of making unlawful gain, and 
 therefore, that he should be subject to rules, 
 which should forbid his embarking in private 
 speculation, in connection with affairs of his 
 office, however innocent and lawful such 
 speculations might be, if disconnected with 
 his oHicial duties. In order to carry out this 
 policy effectually, it is necessary that rules 
 should be established and infiexibly adhered 
 to, which should forbid all such dealings and 
 transactions. The enquiry in such case, is 
 not whether the particular transaction is fair 
 and honest. It may be a very corrupt trans- 
 action, and yet be made to wear a very fair 
 exterior. Such is the power of the officer, 
 on account of the nature of the trust and 
 confidence, that a transaction of this charac- 
 ter is difficult to be probed to the bottom ; to 
 say nothing of that numerous class of cases, 
 in which the rights of parties committed to 
 his hands might be grossly injured, without 
 ever coming to their knowledge, or if known, 
 without the ability or energy, on the part of 
 the persons injured, to seek redress by ap- 
 pealing to Courts of justice. To prevent such 
 great mischiefs, the law inhibits such deal- 
 ings altogether.
 
 MULI-ICJAN V. A\ ALLAfTE 
 
 ni7 
 
 I Jim not aware of any case that is precise- 1 
 ly a pre* odeiit for tliis. liut I am satisfied | 
 tliat it falls within well settled principlt's | 
 and aiialn^'ies. A Commissicmer in iMpiity. 
 like all other agents and trnstees to sell, can- j 
 not purchase at his own sale, however fair 
 the competition. e<iuivalent the price, or 
 honest the transaction in every particular. 
 The (thject of the rule is to prevent such pur- 
 <-liases altogether; the tendt-ncies being, (how- 
 ever fair and honest the particular transac- 
 
 *115 
 tioii.) to lead to cor*ruption and peculation, 
 it removes temptiition, l>y withholding all 
 inducements by which cuiiidity may be ex- 
 cited, j 
 In Com. of Tublic Accounts v. Itose. (1 Des. j 
 461.) it was held that an Attorney lieneral, I 
 acting for the State in a suit upon a bond 
 placed in his hands for collection, cannot 
 discharge or release the same by taking 
 lands or other property in payment, the pro- | 
 ceeds of which he applied to his own use, 
 without accounting to the State. Though he 
 had delivered up the bond and mortgage 
 by which the debt was secured, the debtor 
 was not thereby discharged, but the original 
 debtor w-as decreed to pay the debt. In the 
 case of Latham v. Sarrazin, cited in the last 
 mentioned case as having been then recently 
 decided, it was held that an attorney can do 
 no act incompatible with the nature and end 
 of his authority; and that if he gives a dis- 
 charge, or releases the debt without receiving 
 it. his client would not be bound by it. 
 
 In .Tannesou v. Forbes. Walker and others. 
 ('.', Des. niiJt.) ForlK^s, an attorney, had gotten 
 possession of a bond by assignment, from 
 \V. II. (iibbes, the Master of the Court. The 
 .•issignment was made to Forbes, not for his 
 own beiietit, but for third persons, who were 
 interested as creditors, and he assigned it to 
 the defendant. Walker, in .satisfaction of his 
 own debt. It was decreed by the Court, that 
 the assignment by Forbes was void, and the 
 bond was enforced against the obligor, ftu- 
 (he benefit of the persons originally interest- 
 ed in it. 
 
 In the Treasurers v. McDowell. (1 Hill. 
 1S4 |li(J Am. Dec. 1661.) it was held that 
 tiiougli an attorney has an authority, after 
 .judt.'ment. to receive his dieiifs money from 
 the defendant in execution, and thereby to 
 discharge the judgment, he cannot discharge 
 the judgment by accepting an indenndty, or 
 by making executory contracts in relation to 
 his client's rights. Jackson v. r.artlett. (S 
 Johns. ;U>6); Kellogg v. Cilbert. (1<» Johns. 
 •JliO.) 
 
 It seems to me that the foreiroing cases 
 present strong analogies for the case now 
 before me. In the latter, tiie defendant, the 
 Connni.ssioner in Ktiuity. was ordered to in- 
 vest a certain sum. then in cash in his hands. 
 
 *116 
 at interest. lu the execution of the ♦order, 
 
 he kept to himself, and for his own u.se. a 
 portion of tlie fund, and invested a debt due 
 himself on a note. This, I have said, is no 
 compliance with the terms of the order. It 
 is objected to this view of the case, that it 
 was the same tiling substantially, because, 
 if tlie cash had been paitl to Mitchell on the 
 loan, he could then forthwith have handed it 
 over to the defendant, in payment of his 
 note, and the effect of the rule would be to 
 require an enipty formality, and something 
 to be done by indirection, which could not 
 be d(uie directly. The Court would look with 
 great jealousy upon a case where the trans- 
 action had assumed the form stated in this 
 argument. lUit I apprehend it will not be 
 doubted, that if an attorney were to satisfy 
 the claim of his client, or the sheriff thai 
 of a plaintilf in execution in his hands, by 
 receiving property to liis own use, or by ac- 
 cei)ting in satisfaction his own debt, the 
 whole transaction would be held void, and 
 the original debt enforced — yet the argument 
 here urged in favor of the defendant, would 
 apply with equal force in the case supposed; 
 for there, the debtor might go tlirough the 
 formality of paying the money to the attor- 
 ney, or sheriff, and receiving back and giv- 
 ing his own debt, or other property, in pay- 
 ment. In either case the objection is una- 
 vailing. In the present instance, that subter- 
 fuge or contrivance lias not been resorted to. 
 If it had, the Court would have looked close- 
 ly into the transaction. It is time enough 
 to decide such a case when it arises. The 
 decree of the Court must be against the de- 
 fendant, for the sum of one thousand dollars 
 with interest, for he admits that he received 
 at least that much of the Mulligan fund, in 
 payment of his note on Mitchell. 
 
 It is ordered and decn-ed. that the d.^fend- 
 ant a<'count befiu-e the Commissioner of this 
 (\)urt. for one thousand dollars, and the in- 
 terest thereon, so far as the same has not 
 been paid, anil that the I'ommissioner rei>ort 
 thereon. 
 
 The defiMulaiit a|ipealeil, on the following 
 grounds: 
 
 1. r.ecause the Commissioner complied 
 with the order of the Court, in loaning the 
 money, and the decrt'c should have been for 
 defendant. 
 
 '117 
 
 ♦2. Because the Commissioner was guilty 
 of no omission or neglect of duty, but on 
 the contrary, used unusual diligence in en- 
 deavoring to secure the fund. 
 
 .'{. Because the decree should have con- 
 formed to the former order of the Court, di- 
 rectiiii: one-half the interest to be approjiriat- 
 ed to the payment of certain debts, although 
 the defendant should be liable. 
 
 The complainant also appealed, on the 
 ground: 
 
 Because, from the case made, the Chancel- 
 
 47
 
 '117 
 
 3 RICHARDSON'S EQUITY RErORTS 
 
 lor should have decreed against the defend- 
 ant for the whole demand. 
 
 Bobo, for complainants. 
 Herudon, Dawkins, for defendant. 
 
 WARDLAW, Ch., delivered the opinion of 
 the Court. 
 
 The reasoning and authority by which the 
 Chancellor has been conducted to the conclu- 
 sion, that the defendant did not invest the 
 fund in question in conformity to the order 
 of the Court, are so satisfactory, that addi- 
 tional observations would add little to their 
 strength. But in determining the extent of 
 defendant's lialiility. the decree does not 
 seem to carry out fully its owu principles. 
 To secure the faithful execution of his du- 
 ties, by the officer having charge of the 
 funds in the custody of the Court, it is in- 
 dispensable that he should be held to such 
 strict accountability, as will disable him 
 from making profit, by mixing private affairs 
 with his official functitms. To remove all 
 temptation to the officer to engage in private 
 speculations with trust funds, we must de- 
 clare all such transactions to be unlawful. 
 This is a rule, founded on policy, and of 
 general application, and not depending upon 
 the fairness or fraud of particular transac- 
 tions. A trustee to sell, is forbidden to pur- 
 chase at his own sale, however full may be 
 the price he offers, and however frank and 
 honest may be his conduct; and so a trustee 
 to lend, shall not make the loan to himself, 
 nor in lending to another, substitute his own 
 'rights and credits" for the trust money. 
 Without meaning to impeach the honesty of 
 the defendant in this case, it is proper to 
 suggest, that an officer might be too readily 
 
 *118 
 in*duced to lend fifteen hundred dollars of 
 the fujids of the Court, upon insufficient 
 security, if, in the process, the temptation 
 be offered to him that he may cotempo- 
 raneously collect his owu debt for $1000 from 
 the borrower. One great purpose of estab- 
 lishing, as a rule, that such transactions are 
 unlawful, is to avoid the necessity of inquiry 
 into the circumstances of particular cases. 
 The opportunities of evasion, and the diffi- 
 culty of scrutiny, are so great, that an in- 
 flexible rule on the subject is a matter of 
 necessity. If tlie officer will mingle his pri- 
 vate affairs with his oHIcial functions, he 
 shall do it at the hazard of indemnifying 
 suffering parties to the full extent of then- 
 loss. 
 
 It is manifest in this case, that full jus- 
 tice cannot be done to the plaintiffs, by fix- 
 ing the liability of defendant at any sum 
 short of the whole amount of the fund he 
 was directed to invest. The defendant states 
 in his answer, that he does not remember, 
 a-id has no means of ascertaining, the pre- 
 cise amount of the borrower's delit to him. 
 
 but that it was something over one thousand 
 dollars. The debt, then, was more than one 
 thousand dollars, and why should defend- 
 ant's liability be limited to that sum, or any 
 other less than the whole amount of the 
 fund? The impossibility of ascertaining pre- 
 cisely the sum, and all the confusidu on the 
 subject, have been produced by the official 
 misconduct of the defendant, and he must 
 pay the penalty. 
 
 On the defendant's third ground of ap- 
 peal, it has been suggested to the Court, 
 that by the original order of the Chancellor, 
 dire;ting the sale of the estate, the proceeds 
 of which constitute the fund in question, one- 
 half of the interest of the fund was to be 
 appropriated to the payment of certain tlebts 
 of Mulligan, until they were extinguished, 
 and the other half only to be aiipropriated 
 for the use of the plaintiffs. If this be so, 
 one-half of the interest of the fund must be 
 applied to the creditors, protected by the 
 original order, and one-half to the use of the 
 plaintiffs, until the interest lawfully accru- 
 ing, would extinguish the debts, and after- 
 wards the whole interest be applied to the 
 use of the plaintiffs; all proper payments 
 of interest being allowed. 
 
 *119 
 
 *It is ordered and decreed, that the de- 
 fendant account with the plaintiffs, before 
 the Commissioner of this Court, for one thou- 
 sand five hundred and eighty-eight dollars 
 and seventy-seven cents, and the interest 
 thereon from June, 1837, on the principles of 
 this decree; and that the circuit decree be 
 modified accordingly. 
 
 •TOHNSTON, DUNKIN and DARGAX, CC.^ 
 concurred. 
 
 Decree modified. 
 
 3 Rich. Eq. 119 
 
 JOHN Z. HAMMOND v. JAMES R. AIKEN 
 and JOS. KENNEDY. 
 
 (Coluoibia. Nov. and Dec. Term, 1850.) 
 
 [Assiffnments for Benefit of Creditors €=-0S; 
 Partnership <g=:3289, 291.] 
 A firra doing business in W. was dissolved, 
 but uo notice of the dissolution was published 
 in a newspaper; about the time of the dissolu- 
 tion. K., a member of the firm, gave a nute, 
 ill tlie name of the firm, to a bank at C., which 
 note was, after the dissolution, renewed by an 
 agent acting under a seak'd power of attorney 
 given by K. in the name of the firm; ]icld, 
 that the notice of the dissolution was insufli- 
 cient, so far as the bank at C. was concerned; 
 that the firm were liable on the nnte, whether- 
 given before or after the dissolution; and that, 
 if the renewal was void, the bank had the right 
 to recover on the original note, which it had 
 retained ; held further, that an assignee of the 
 firm, for the payment of the debts thereof, 
 had properly paid this debt to the bank, al- 
 though he, the assignee, may have had the 
 
 48 
 
 <£=:5For otlaer cases see same topic and KEY-NUMBER in all Key-Numbeied Digests and Indexeo
 
 HAMMOND V. AIKKN' 
 
 ^122 
 
 reciuisitc uritice of tlip dissdhition, iiiid tlint the 
 dt'ljt was oontractcd aftt'i wards. 
 
 [Ed. Note— For other cases, see Assignments 
 for Benefit of Creditors. Cent. Dip. S STi) : Dee. 
 Dii;. <S=:3:i<).S; I'artnership. Cent. Dig. SS »!.")(!, 
 (ir.T: Dee. Dig. <S=>:iS!>. 2U\.] 
 
 [J'(irtii(rsliii> <C=>-S<>.1 
 
 K., hefore tlie dissolution, gave his individ- 
 ual note to H. & \V.. for another note, which 
 he used for the benefit of the tirni; K's note 
 was not paid a' niaturit.v, and he gave a draft 
 for the aniouni thereof to II. & \V. ; the draft 
 was pi-otcsted. and then K. after the di^snlut inn. 
 gave H. iK: \V. a note, in tiie name of the linn, 
 for the amount of the draft; held, that the firm 
 were not liable for this note ; and that the as- 
 signee was not justified in paying it. 
 
 [Va\. Note. — For other cases, see I'artnership, 
 Cent. Dig. S G4r.; Dec. Dig. <©=>liS(;.] 
 
 Before Dargun, Ch., at Fairtiidtl, 
 
 Term, 1S50. 
 
 The decree of his Iliaior, the presiding 
 Chancellor, is as follows: 
 
 Dargan, Ch. The decree of the Court of 
 Appeals remanded this case to the (Mrciiit 
 Court, only as to the two matters, namel.v, 
 the note, purporting to he the note of the 
 
 *120 
 firm of Jos. Kennedy *& Co. to the Branch 
 Bank at Camden, amounting at its payment 
 hy the assignee to .$;!r_*.S5 ; and the note, pur- 
 porting to be the note of the same firm, to 
 Hazeltine & Walton, amounting at its pay- 
 ment to $llli!).Sl. The assignee. James K. 
 Aiken, has paid tliese notes, as the notes of 
 Jos. Kennedy «Jc Co., and claims credit for 
 their payment, in the settlenient of his ac- 
 counts. By the comiilainant. this is resisted, 
 on the ground, that hy the terms of the as- 
 signment, he was the assignee only for the 
 payment of the debts of Jos. Kennedy & Co., 
 and these are not the debts of Jos. Kennedy 
 & Co., having been executed after the dissolu- 
 tion of the partner.ship. 
 
 The dissolution took place some time in the 
 fore part of the year 1841. But the precise 
 time is not satisfactorily proved. A. II. 
 Chambers says, "there was a sale of the 
 goods of Joseph Kt>nnedy «fc Co., about the 
 15th of Fell., 1841 ; that sale was in pursu- 
 ance of some advertisements posted up some 
 time previous, at different places in the town 
 of Winnsl'orough, in which the dissolution of 
 the firm of Jos. Kennedy & Co. was made 
 public." This is loose. Was the dissolution 
 at tliat time prospective, or liad it then tak- 
 en place? Why were not the advertisements 
 themselves produced, or some evidence offer- 
 ed to prove more sjiecilically their contents? 
 It seems certain, that the business of the firm 
 went on after the auction ; for O. U. Thomp- 
 son says he "was acting as clerk tor Jos. 
 Kennedy & Co., in the spring of 1841 ; thinks 
 he left them about the i:!th March, 1841 ; 
 feels jjretty certain that the time is correct. 
 After witness left them, one of the Mr. Twit- 
 lys, or probably two of them, acted as clerks 
 for the firm. Witness thiidcs the Twittys re- 
 mained with Jos. Kennedy & Co. as clerks 
 
 abiait three months. Witness knows of no 
 di.ssolution of the partnership, but that while 
 lie was acting as clerk, there was an auction 
 of goods that continut'd two da.\s. Shortly 
 after this auction, witness left their i-niidoy- 
 ment. There were gi>ods remaining after 
 the sale, but their amount was im-onsldcr- 
 able." Strange, that there siiould have been 
 an actual diss(»lution, and the acting clerk of 
 the house know nothing about it'. 1 shall as- 
 
 *121 
 sunie in what is *to follow, that thore has 
 been no actual dissolution .satisfactorily prov- 
 ed, prior to the IL'th of May, ls41. 
 
 The note paid by the assignee, tlii' prii.ci- 
 pal of which was for .^'HlO, and intorest to 
 the time of payment $l:J..s.j, was executed 
 by Ch. J. Shannon, after the dissolution of 
 the firm, under the authority of a sealed 
 liower of attorney, given him by Joseph Ken- 
 nedy, in the name of the firm. This note 
 was a renewal of a previous ni>te, itself a 
 renewal. The original debt to the liank was 
 for .$10(X), spcured by a note piiyable at six- 
 ty days, signed by "Jos. Kenne<iy & Co.,'' 
 and dated 12th May, 1841. I aui not satis- 
 fied, as I have said, that the partnership was 
 dissolved at this time. The renewals may 
 have been void as notes, having been ex- 
 ecuted after the dissolution, and by an attor- 
 ney too, who, so far as it appears, may have 
 been api»ointed by KenncMly after the dissolu- 
 tion. But if the renewals were void, the 
 bank had a right to recover on the original 
 note, (which ir retained,) the balance that 
 was due. 
 
 In the foregoing, I have assumed that the 
 original note to the bank was exei utcd be- 
 fore the dissolution of the partnership. If 
 it was afterwards it could not have been 
 long. Tliere is no proof that this firm had 
 any previous dealings with the bank. ' WJien 
 a i)artnership is dissolved, and one partner, 
 for whatever reasons, is no longer willing to 
 be responsible for the acts of his co-partners, 
 reason and justice require tiiat the world 
 should be fully apprisetl of the dissolution of 
 their joint liability, and that the severance 
 of the partnership should be made as notori- 
 ous as the partnership itself was. Accord- 
 ingly it has bcfu decided, that particular per- 
 sons, such as those having dealings with the 
 firm, must have particular notice, and the 
 world in general must have general n.itice. If 
 suHicient notice is not given, all the meiubers 
 will still be liable for contracts made by 
 their co-partners." Carey on Tart. 182. "No- 
 tice in the gazette is sufficient to those who 
 have had no previous dealings with the 
 firm."' lb. 183. The same author, \). 185, re- 
 marks: "it has been decided, that a retiring 
 l»artner is liable after the lap.se of seven 
 years from the period of dissolution, when 
 
 *122 
 no notice was given in the *gazette, and the 
 dissolution was not known to the creditor. 
 
 @=>For other ca-ses see same topic and KEY-NU.MBBR in all Key-Numbered Digests aud Inde.\es 
 3 Kich.Eq.— 4 49
 
 *122 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 though generally known in the neighborhood 
 where the business was carried on." 
 
 There was no notice whatever of the dis- 
 solution of the partnership of Jos. Kennedy 
 & Co. ever published in a newspaper. The 
 only notice ever given, was that mentioned 
 by the witness, Chambers, as having been in- 
 troduced in the advertisement of sale posted 
 up in different places in the streets of Winns- 
 borough. This may have been sufficient for 
 the general public of Winnsborough. I am of 
 the opinion, that it is not sufficient for the 
 citizens of Camden, more particularly at so 
 early a period after the dissolution. I doubt 
 very much the notoriety of this event, even 
 in the community of Winnsborough ; for of 
 all the witnesses examined, there was but 
 one who speaks of their having been a dis- 
 solution at that time. It was a fact not 
 even known to the principal clerk of the 
 house. 
 
 If the payee of this note, from the want 
 of notice of the dissolution, could have recov- 
 ered against the partnership, the assignee was 
 justified in paying it, and must have credit 
 for the payment, though he may himself 
 have had the requisite notice of the dissolu- 
 tion, and that the debt was contracted after- 
 wards. This was the opinion of the Court of 
 Appeals, as expressed in its decree in this 
 case. So much of the complainant's' first ex- 
 ception, as relates to the debt due to the 
 branch bank at Camden, is overruled. 
 
 The debt due Hazeltine & Walton stands 
 upon a different footing. That debt unques- 
 tionably did not stand in the name of the 
 firm until after the dissolution. The history 
 of the transaction is as follows: one J. H. 
 Propst held a note on J. & J. Nelson, for 
 $890. About the 13th of February, 1841, he 
 transferred this note to Kennedy ; who, in 
 consideration thereof, gave him a note, at 
 60 days, payable at the Commercial Bank, to 
 Hazeltine & Walton. This note was, at its 
 maturity, protested by the bank for non pay- 
 ment. Kennedy made an arrangement with 
 Haseltine & Walton, by which he took up his 
 note, and gave them for the amount thereof, 
 
 *123 
 a draft, at 60 days, *on Shannon & McGee. 
 This draft was also protested. And Kennedy 
 remained the individual debtor of Hazeltine 
 & Walton. In satisfaction of the draft upon 
 Shannon & McGee, Kennedy, after the dissolu- 
 tion of the partnership, executed the note to 
 Hazeltine & Walton, in the name of "Jos- 
 eph Kennedy & Co." The note was endorsed 
 by James R. Aiken and J. J, Myers. 
 
 In regard to this debt, no credit was giv- 
 en in its inception, to the firm of Joseph 
 Kennedy & Co. Nor was any such credit 
 given in any of the changes, or renewals, 
 which it underwent, until the last. And in 
 that transaction, Hazeltine & Walton, the 
 payees of the note, took it from Kennedy, as 
 a partnership note, knowing that it was Ihe 
 individual debt of Kennedy, upon which the 
 50 
 
 partnership was not liable. They have no 
 ground to complain of the want of notice of 
 the dissolution, when they knew that the 
 debt for which they took the partnership 
 note, was not a partnership liability. Nor 
 does it appear that there were any dealings 
 whatever, between the payees of this note, 
 and the firm of Joseph Kennedy & Co. For 
 a creditor of an individual member of a part- 
 nership, to take from his debtor a note in 
 the name of the firm, without their consent 
 or knowledge, is a fraud upon the other 
 members. And though such note, if taken 
 during the continuance of the firm, and 
 transferred to a third party without notice, 
 may be binding upon the firm, such is not the 
 case where the question is between the 
 firm and the payee. 
 
 The note of J. & J. Nelson, for which this 
 debt was originally contracted, was devoted 
 to partnership purposes. It was transferred 
 by Kennedy to Trenholm & Tomlinson, in 
 part payment of a bill of goods, furnished by 
 them to Jos. Kennedy & Co. It is urged, that 
 because the consideration of the note went to 
 the use of the firm, they ought to be liable. 
 There is no ground for any such conclusion. 
 The credit was given to Kennedy individu- 
 ally, and he gave the credit by advancing 
 his own funds to this extent, in paying the 
 debts of the company. There is no equity 
 for a subrogation. And if there was, the 
 
 *124 
 subrogation *could be only to the rights of 
 Kennedy. His rights depend upon a settle- 
 ment of the accounts, and the closing of the 
 balance sheet. If on accounting, he falls in 
 debt, or the whole capital has been absorbed 
 in losses, he has no rights in the property of 
 the firm. The account has not been taken. 
 And for all that I know, in advancing, for 
 the use of the company, the note of J. & 
 J. Nelson, he may have been discharging 
 but a small part of his obligations to the 
 firm. This part of the first exception is sus- 
 tained, and the Commissioner's report in 
 that regard is confirmed. 
 
 The defendant, James R. Aiken, appealed, 
 and moved the Court of Appeals to reverse 
 the decree so far as regards the Hazeltine 
 & Walton claim ; and failing in that, so 
 to modify the same, as to reserve or suspend 
 the final adjudication of the Court upon the 
 said claim, until the accounting be had be- 
 tween the complainant and Joseph Kennedy, 
 the defendant. 
 
 The complainant api>ealed from so much of 
 the decree as over-ruled his exception, on 
 the grounds: 
 
 1. Because the branch bank at Camden 
 could not in law have recovered judgment 
 against complainant on the note they held 
 signed by Joseph Kennedy, in name of Jo- 
 seph Kennedy & Co., and therefore the pay- 
 ment of said note, by defendant Aiken, was 
 unauthorized. 
 
 2. Because, under the facts of the case,
 
 LESLY V. COLLIER 
 
 ♦127 
 
 tlio coniiilainnTit was not liaMe to the liaiik 
 nil siiid note, and the iiaynient hy Aikon was 
 (niauthorized. 
 
 (VioUe, Mc-Dowall and I?oylston, for de- 
 fendants. 
 
 Kuthind, Boyce, for coinplainant. 
 
 DARGAX, Ch., delivered tin- ..pininn of the 
 Court. 
 
 Tills Court is satisfied with tlu' decree of 
 the Chaneellor who tried the ease on the Cir- 
 < nit. And it is not de«Mned neeessary to add 
 any thiny to what is .said in the Circuit de- 
 cree, in rej,'ard to the questions therein tli.s- 
 cussed. If. on the final adjustment of the ae- 
 count.s of Joseph Kennedy, with the firm of 
 Joseph Kennedy & Co., it should appear 
 
 *125 
 that the said Joseph Kennedy *is entitled to 
 any tiiinj;, as a halance due him, arising on 
 the effects and assets of the said firm, in 
 the liands of James II. Aiken, the assi;rnee, 
 the Circuit decree does not conclude, nor 
 does this Court intend to conclude, the said 
 .lames H. Aiken from using the delit of Hazel- 
 tine & Walton, which he has paid, as a dis- 
 count, or set oft', against any halance that 
 may be found due to Joseph Kennedy, on 
 the settlement of his accounts, in manner 
 as aforesaid. 
 
 It is ordered and decreed, that the Cir- 
 cuit decree be afiirmed, and the api^eals dis- 
 missed. 
 
 JOHNSTON and DUNKIN, CC, concur- 
 red. 
 Appeals dismissed. 
 
 3 Rich. Eq. 125 
 
 DAVID LESLY, Ordinary nf Al.l.cville. v, 
 
 WILLLVM E. COLLIER and Otlu-rs. 
 
 (Colunil)ia. Nov. and Dec. Term, 1,S">0.) 
 
 \l'crpctuiti(s C=^4: Wills C==>S.~>2.| 
 
 Testator lnMiiicatlu'd as follows; "I give 
 and lic(|iu'atli unto P. C, and in tlie event of his 
 dynii,' without issue, to no to his blood rela- 
 tions, the following negroes." ike. V. C. died, 
 without issue, in the life-time of testator ; Held 
 (li that it was not the iiitcMtion of testator 
 that the "blood relation.s" should take as the 
 substitutes, or alternates of I'. C, in the event 
 of his (lying, in the lifetime of testator, with- 
 out issue: tl') that test.itor intended a limita- 
 tion over to the "blood reliitions" ; Cti that siii'h 
 liiriitation over was too remote; and (It that 
 by the death of V. C, in the life-time of testa- 
 tor, the legacy lapsed. 
 
 I Ed. Note.— Cited in Clark v. Clark. 11) S. C. 
 .•;4!l; Key v. Weathersbee. 4P, S. C. 424, 21 S. 
 E. :V24, 4!» Am. St. Iteii. S4(). 
 
 Eor other eases, see reipetnities. Cent. Dig. 
 S 27; Dec. Dig. Oi=>4 ; Wills, Cent. Dig. § 
 21(;7; Dec. Dig. <C=3.s.-,2.| 
 
 Hefore Caldwell, Ch., at Chambers. Charles- 
 ton, Jairy, ISoO. 
 
 Caldwell, Ch. Edward Collier died on 
 the 7th of May, 1S4S, leaving his last will 
 and testament, dated 2;{rd of Aug., 18o7. 
 
 liy the tenth clause he hequeatheil as fol- 
 lows: "I give and bi^iueath to Patrick Hen- 
 ry Collier, son of the said Sarah Collier, and 
 in the event of his dying without issue, to go 
 lo his bliKxl relatiiuis, the following negroes: 
 Alfrnl. Satyra. and Eineliiie, child of liet- 
 sey, with all their increase."' ratri<-k Hen- 
 ry Collier died, without • issue, in the life- 
 time of the testator, leaving his mother Sa- 
 
 ♦126 
 rah ♦Collier, and his brothers, James G. 
 C»>llier and William E. Collier, and his sis- 
 ters. Mariali, (who intermarried with J. H. 
 Hart.) and Lucinda, (who intermariieil with 
 A. B. Elliott,) his distributees; the mother 
 has since died, and the bndhers and sisters 
 are his ne.xt of kin. The first question is, 
 has the legacy Iap.sedV The exiH-'Ution of a 
 will conveys no interest or estate in preseii- 
 ti, and derives all its efiicacy from the death 
 of the testator; during his lifetime, he may 
 alter, amend or destroy it; and from its am- 
 bulatory nature, the doctrine of lai>se neces- 
 sarily arises and extends its eftects to be- 
 tpiests and devises with or without limita- 
 tion. When the legatee dies in the lifetime 
 of the testator, the legacy lapses. Otir stat- 
 ute relaxes this stringent rule of the com- 
 mon law in the ca.se of a child, (dying in the 
 lifetime of a father or mother.) leaving is- 
 sue not e<iually portioned with the other 
 children of the father or mother when liv- 
 ing; this exception cannot exempt the b>g- 
 acy from lapsing. If I'atrick Henry Collier 
 had survived testator, what estate would 
 he have taken under the will? There is no 
 direct gift to his i.s.sue ; nor do the terms 
 of the will tie up the generality of the ex- 
 pression, "in the event of his dying without 
 issue" to a definite period, or sin-cify a par- 
 ticular class t>f issue that must come into 
 esse within a life or lives in being, so that 
 the words have all of the characteristics of 
 an indefinite failure of issue. To give the 
 fullest eft"ect to the untechnical f(>rm of the 
 phrase, that the legatee would take an in- 
 terest in the property, defi'asable on the con- 
 tingency of his dying without issiu' in the 
 first, second or some more remote geiiera- 
 ti(»n. whenever this incident luippened th^ 
 blood relations would come in. If this was 
 the intention of the testator, the words he 
 has used are in contraventicui of the well 
 e.stablished rules of the law, and caiuiot be 
 liermitted to prevail. Croat variety of ex- 
 l)ression has been u.sed in the different wills 
 that have been subjected to the construction 
 of the courts, and it would be utterly un- 
 safe to adopt the popular, instead of the 
 legal interpretation of the wonls (tf the will. 
 When personal property is liniit<'d over, if 
 the first taker "dies without issue," or if be 
 
 *127 
 "has no issue," or if he *dit's "beftire he has 
 any i.ssue," or "in default or want of issue," 
 &c. all these cases are clearly within the 
 
 G=>For other cases see same topic and KEV-NUMBEK iu all Key-Numbered Uigesls aud Indexes 
 
 51
 
 *127 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 rule of being too remote: the extinction of 
 issue not being restricted to any piirticnlar 
 point of time, or the limitation not being 
 confined to a class of persons designated 
 with certainty, and who must come into be- 
 ing within the prescribed period, will ren- 
 der the limitation obnoxious to a general and 
 indefinite failure of issue. The only two 
 exceptions to the general rule are, when the 
 testator having no issue, devises his prop- 
 erty on failure of his own issue: this clear- 
 ly indicates that he intends to make the leg- 
 acy contingent on the event of his leaving 
 no issue surviving him, and that he does 
 not contemplate an extinction of issue at 
 any time, (2 Fearne, 271, Smith's ed.) ; and 
 the other exception arises when the testa- 
 tor uses the expression (or what is equiva- 
 lent to it) "leaving no issue." 
 
 Independently of argument in the abstract, 
 this case has been settled by numerous well 
 considered cases in England and in this 
 State. AVhere a testator gave all his real 
 and personal estate to A and his male issue ; 
 for want of such issue after him, to B and 
 his male issue — Sir William Grant, the Mas- 
 ter of the Rolls, held that A took the absolute 
 interest in the personal estate, Donn v. Pen- 
 ny, (1 Mer. 20) ; and, in a more recent case, 
 his successor, Lord Langdale, held, w^hen a 
 testator gave £500 stock to S, T to receive the 
 interest during life and then to her issue, 
 but in case of her death without issue, the 
 £500 to be divided between, &c. ; she died 
 without issue — that the limitation over was 
 void for remoteness, and she took an ab- 
 solute interest under the first words. Attor- 
 ney General v. Bright, (2 Keen, 57.) The case 
 of Massey v. Hudson. (2 Mer. 138,) is strong- 
 ly illustrative of the same principle. Many 
 of our own cases have settled the same 
 point ; I shall rely upon two — Dunlap v. 
 Dunlap, (4 Des. 313,) and Postell v. Postell, 
 <Bail. Eq. 300)— the latter is on all fours 
 with the case under consideration ; there the 
 bequest was to two brothers, ''to them and 
 their legal issue, and should either die with- 
 
 *128 
 out lawful issue, the *said property to revert 
 back to the surviving brother or his lawful 
 issue." 
 
 I am of opinion the legacy lapses, and it is, 
 therefore, ordered and adjudged that the said 
 negroes in the tenth clause, and their issue, 
 have lapsed by the death of I'atrick Henry 
 Collier, and the same is, under said clause, 
 intestate property of the testator ; and it is 
 ordered that David Lesly, Ordinary of Ab- 
 beville district, do administer the said prop- 
 erty according to law. 
 
 The defendants appealed, and moved the 
 reversal of Chancellor Caldwell's decree, on 
 the grounds, 
 
 1. That the legacy is not lapsed. 
 
 2. That the limitation in question is not 
 too remote, uncertain, nor after an indefinite 
 failure of issue. 
 
 52 
 
 3. That the legacy, according to circum- 
 stances at testator's death, was direct, abso- 
 lute, and unconnected with any limitation, 
 and should have been so declared. 
 
 4. That the obvious intention of testator 
 was, to give to a class, and that the same 
 construction should have been applied to the 
 item in question, as would be to other un(pies- 
 tionably good bequests to others of the class. 
 
 Petigru, Thomson & Fair, for appellants. 
 McGowen, contra. 
 
 DARGAN, Ch., delivered the opinion of the 
 Court. 
 
 On this appeal, two questions have been 
 discussed. It has been argued in the first 
 place, that the legacy to Patrick Collier did 
 not lapse in consequence of his death before 
 the testator, because the limitation over to 
 Patrick Collier's blood relations, in the event 
 of his dying without issue, is not too remd'te 
 and uncertain, nor after an indefinite failure 
 of issue ; and that on the death of the tes- 
 tator, the limitation over to his blood rela- 
 tions took effect in favor of the persons who 
 could bring themselves within that descrip- 
 tion. This is the appellant's first proposition. 
 
 If there be a legacy to one, for life, with 
 remainder to another, which remainder, on 
 the death of the testator, would be direct and 
 vested, and not contingent, and the person in- 
 
 *129 
 tended to be *the tenant for life dies in the 
 lifetime of the testator, I think it cannot be 
 doubted that, in such case, the legacy does 
 not lapse, but on the death of the testator, 
 goes at once to him who, in the scheme of the 
 legacy, was intended to be only a remainder- 
 man. And it may be true, that a limitation 
 over in favor of "blood relations," as a class, 
 might be valid and effectual, provided it was 
 conformable with all the rules which the \a\v 
 has prescribed against the creation of per- 
 petuities. But, conceding that the limitation 
 over (in this case) in favor of the first taker's 
 blood relations, was not too remote in cou- 
 se(pience of its being after an indefinite fail- 
 ure of issue, it would have been, (if the first 
 taker had survived the testator,) a contingent 
 limitation, and not a vested remainder. It 
 would have been contingent upon the event 
 of the first taker's dying without issue living 
 at the time of his death. And if this condi- 
 tion had not happened, the first taker would 
 have had an absolute estate, and the limita- 
 tion would have been gone foi-ever. And I 
 am not prepared to admit that, where a 
 legacy is given to one, with a valid but con- 
 tingent limitation over, and the legatee dies 
 in the lifetime of the testator, the legacy 
 does not lapse. It is unnecessary for me fur- 
 ther to develope these views, or to sustain 
 them by authority or illustration, as they 
 are not immediately involved in the question 
 which the Court deems it incumbent upon it 
 to decide. For, as to the question of the
 
 LESLY V. COLLIER 
 
 »13i 
 
 llmiration, tho Court is of th«' oiiinion. that 
 tho liini.jitioii (if oiu- was infiMi(l*Ml> is after 
 the iiidefiiiite failure of issue, aiul, therefore, 
 void for Iieinu' too remote. Iiid»'«Ml, it seems 
 to me tliat tliis construction is too clear for 
 discussion. 
 
 The second i)roiiosilion submitted to the 
 Court on this appeal is this— that the benefit 
 intended by the testator to Tatrick Collier's 
 l>lt»od relations, was not to be enjoyed l)y 
 them in succession to I'atrick Collier, or aft- 
 er the efliux of any estate to him or his' 
 issue ; but was a direct estate to them, as a 
 substitutional or alternative legacy, jiiven to 
 tliem as a class, in the event of the death of 
 I'atrick Collier without issue in tlie lifetime 
 of the testator. The corollary of this propo- 
 *130 
 
 sit ion. namely— that nhe legacy has not laps- 
 ed, is perfectly legitimate, if the principal 
 liroiiosition has been sustained. 
 
 It is perfectly clear that this i>osition is 
 entirely inconsistent with the first grouml 
 as.sumed. that there was a valid limitation. 
 Hoth cannot be true. This, however, is no 
 saHsfactory solution of either question. 
 
 If a testator gives a legacy to one, either 
 aiisolutely or with limitations, and declares 
 that if the Jirst named legatee should die in 
 his lifetime, the sauje legacy should go to 
 another person, or to a clearly designated 
 <lass of persons, capable of being identitied ; 
 and the first of the alternative k'gatees 
 should die in the lifetime of the testator, un- 
 <loul)tedly this Is a case in which there would 
 Lie no lapse. The legacy to the second alter- 
 native legatee would take effect as a sub- 
 stantive legacy; directly, and not in succes- 
 sion to the first named or iireferred legatee. 
 And if such were the intention of the testa- 
 tor, clearly to be inferred from the whole 
 will by a fair construction, though not ex- 
 presst'd in formal language to rhat effect, 
 such intention would be respected, and efiica- 
 cy given to it by the decree of the Court. In 
 the foregoing remarks, I have admitted in 
 the broadest terms, the legal principles upon 
 which the .second ground discu.ssed on this 
 appeal is ba.sed. 
 
 Hut the Court perceives nothing in the 
 will of Edward Collier, to which tbest- uii- 
 rpiestionable legal principles will apjily. Ac- 
 cording to the con.struction which the Court 
 has given to the will, there is no intention 
 on the part of the testator, indicated either 
 directly or by implication, to apiioint the 
 cla.ss of per.sons called the blood relations of 
 I'atrick Collier, as a .substitute for hnn. in 
 the event that he should die in the lifetime of 
 tlK> testator. The clause in (luestion is as 
 follow.s. "I give and bequeath to Patrick 
 Henry Collier, .scm of the said Sarah Collier, 
 iind in the event of his dying without i.s.sue. 
 to go to his blood relations, the followln:.' ne- 
 groes," namely, &c. The Court perceives in 
 this, nothing but a common and fruitless at- 
 
 ■ tempt to create a limitation in favor of the 
 l)lood relation.s, which is ineffectual from an 
 ignorance or misa]»preliension of those well 
 
 •131 
 ♦defined legal boundaries, by which that spe- 
 cies «>f estate or interest in property is re- 
 stricted. Suppo.se the clau.se had read thus: 
 — "I give and be<iueath to Patrick Collier, 
 the following negroes, namely." &c. -and in 
 the event of his dying without issue, the 
 said negroes to go to his blood relations." 
 On the con.struction of such a clau.se, could 
 there be a doul»tV 'Hie transposition of the 
 words in which the blood relations are men- 
 tioned, from tlje parenthetical form, does not 
 vary the plain sense and meaning of the 
 clause. 
 
 To adopt the construction contended for 
 by the api)ellant.s, the copulative conjunction 
 which stands in the way. mu.st be removed. 
 The Court would have no difficulty in chang- 
 ing the copulative into the di.sjunctive form 
 of exi»ression, and e con verso, where it i^5 
 neces.sary to effectuate the intention of the 
 testator. But to authorize the Court to take 
 such liberties with a will, the intention mu.st 
 be manifest. It is done in the constructitin 
 of wills, to jirevent the clear intention of 
 the testator from being defeated. It will not 
 be done to carry into effect a conjectural 
 intention, however plausible such construc- 
 tion may be. 
 
 It is to be remarked in this ca.se, that the 
 testator gives nothing to the i.ssue of I'atrick. 
 There is no limitation to them, contingent 
 or otherwise. If Patrick had died in tlie 
 lifetime of the testator leaving issue, by the 
 terms of this will such issue could not take. 
 The word issue here, is a word of limitation, 
 and not of purchase. There is nothing giv- 
 en to I'atrick's issue as such, and if there 
 were, there is nothing to limit the generality 
 of that form of expression. If I'atrick had 
 died in the lifetime of the testator, leaving 
 issue, there being nothing given to them as 
 I)urcha.sers, the legacy would have lap.sed ; 
 for, according to the ai.pellanfs own con- 
 struction, the blood relations were not tt» 
 take, unless Patrick should die in the tes- 
 tator's lifetime without issue. The testat«)r. 
 therefore, could not have intended the blood 
 relations as the sub.stitutes or alternates of 
 I'atrick: for, by legal construction, he nuist 
 be considered as having intended a lai.se. 
 in the event of Patrick's dying, leaving is- 
 sue, in his lifetime. 
 
 ♦132 
 ♦If the words of the bequest had been 
 these:— "I give and be(|ueatii to Patrick, and 
 in the event of his death to go to his blood 
 relation.s," &c. onutting the mention and 
 rondition of Patrick's dying without issue, 
 there would have been strong reasons and 
 high authority for the construction that 
 would give the property to the blood relations 
 IS the alternates or .sub.stitutes of Patrick. 
 But the unfriendly interposition of the words 
 
 53
 
 *132 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 relating to Patrick's issue spoils this con- 
 struction, and renders inapplicable the au- 
 thorities cited. The strongest of them in sup- 
 port of the appellants' construction, Galland 
 V. Leonard, (1 Swans. 161) is an anomalous 
 case, and appears to have been decided with 
 reference to its peculiar circumstances. An 
 interpretation was given to the will to re- 
 concile direct and palpable inconsistencies, 
 and to harmonize its conflicting provisions. 
 In these provisions there was much com- 
 plexity, and the testator's meaning was care- 
 fully gleaned from the whole. The case is 
 not considered as furnishing a parallel to 
 this. 
 
 It is ordered and decreed that the appeal 
 be dismissed, and the circuit decree be af- 
 firmed. 
 
 JOHNSTON, DUNKIN and WARDLAW, 
 CC. concurred. 
 Appeal dismissed. 
 
 3 Rich. Eq. 132 
 EDMUND ATCHESON and Others v. DOUG- 
 LAS ROBERTSON and .JOHN HILL. 
 (Columbia. Nov. and Dec. Term, IS-jO.) 
 [Executors and Administrators <^=^125.'\ 
 
 Testator directed his two executors to sell 
 his slaves, prescribing the manner of sale; the 
 executors, finding the manner prescribed im- 
 practicable, and the necessity of a sale being 
 manifest, sold in a different manner; they botli 
 signed the sale-bill, which was returned by 
 them to the ordinary ; J. R., one of the ex- 
 ecutors, took the larger portion of the notes 
 given for the credit portion of the sale, and kept 
 the whole of them for about five months, wlien 
 he turned over about one-half to his co-executor, 
 D. R. ; a few ysars afterwards J. R. died in- 
 solvent, having wasted the assets retained by 
 him ; Held thai D. R. was not liable for the 
 devastavit of J. R. 
 
 [Ed. Note.— Cited in Clarke v. Jenkins, 3 
 Rich. Eq. 341; Miller v. SHgh, 10 Rich. Eq. 
 249, 250 ; Gates v. Whetstone, 8 S. C. 247, 2S 
 Am. Rep. 284; Tompkins v. Tompkins, IS S. 
 C. 21. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 512; Dec. Dig. <©=>125.] 
 
 *133 
 
 *Before Johnston, Ch., at Edgefield, June, 
 1850. 
 
 The decree of his Honor, tbe presiding 
 Chancellor, is as follows : 
 
 Johnston, Ch. William Robertson made 
 his will on 17th Septend)er, 1840, and ap- 
 pointed as executors thereof, his nephews, 
 James Robertson and Douglas Robertson, 
 who were cousins ; and he died in May, 1841. 
 On 7th June, 1841, the will was admitted to 
 prubate, and both executors qualified. On 
 24th November, 1841, the executors concurred 
 in a sale of the personalty, for the aggregate 
 sum of $9,40j.24, and both signed the sale-' 
 bill and were present when it was returned 
 to the ordinary, on 2d May, 1842 ; but all 
 their subsequent returns to the ordinary, 
 
 were separate. Whether they joined in the- 
 clerical act of taking from the purchasers'. 
 at the sale, the securities for the purchases, 
 is not clear by the proof, nor important ; 
 but my conclusion from the evidence is, that 
 James Robertson took the larger portion of 
 the securities, and kept the whole of them 
 in his possession from the time they were 
 taken until 23d April, 1842, when he deliver- 
 ed over some of them, to the sum of .$4,739.5.3^ 
 to his co-executor, Douglas. James Robert- 
 son was older than his co-executor, and a 
 more expert man in business, and enjoyed 
 the intimacy and confidence of his testator ; 
 and, until about a year before his death, 
 which happened about the close of the year 
 1847, he maintained good credit with the com- 
 munity, but, as the event lias shown, he 
 wasted the assets of his testator, and died 
 insolvent, and may have been insolvent from 
 the time of his appointment. On (ith Septem- 
 ber, 1847, Douglas Robertson, who seems by 
 the evidence to have been recently informed 
 of the pecuniary condition of his co-executor,, 
 took from the said James Itobertson a mort- 
 gage of certain negroes, to secure himself 
 from the consequences of any maladministra- 
 tion by said James. 
 
 The bill is filed by plaintiffs, as residuary 
 legatees of said William Robertson, against 
 
 *134 
 
 Douglas Robertson, surviving exe*cutor, and 
 John Hill, representative of James Robert- 
 son, the deceased executor, for an account 
 and settlement of the estate of the testator ; 
 but the only question presented for my de- 
 cision now, is whether Douglas Robertson is 
 liable for the devastavit of his co-executor. 
 
 The general doctrine is, that one executor 
 is not liable for the acts of his co-executor ; 
 and I see nothing in this case, by which 
 Douglas Robertson has adopted as his own 
 any unlawful act of his co-executor. He has 
 done nothing by which he enabled James Rob- 
 ertson to obtain possession and control of 
 any assets of the testator, previously within 
 the actual power of him, the said Douglas; 
 he has been merely passive ; and without 
 more active concurrence in the acts of his 
 co-executor, I find neither principle nor au- 
 thority, upon which I can make liini liable 
 for assets not within his control, and for 
 which he had not, by some act of his own,, 
 made himself chargeable. In my judgment^ 
 Douglas Robertson is liable only for the as- 
 sets delivered to him by James Robertson. 
 
 It was argued, that the power to sell, con- 
 ferred by the will in this case, upon the 
 executors, was conditional only, and that 
 the state of facts justifying the sale was not 
 proved to exist, and that the sale was there- 
 fore an unhnvful act, in which Douglas con- 
 curred. But it was within the discretioi> 
 of the executors, and it is not for the plain- 
 tiff's to determine upon the existence of the 
 
 54 
 
 ®=»For other cases see same topic and KEY-NUMBER in ail Key-Numbeied Digests and Indexes
 
 ATCIIESON V. ROBERTSON 
 
 *r.6 
 
 slate of facts upon whirh tlie power to sell 
 was coiifernHl. 
 
 Of course the iiiort;.'a;ii>, aliovo niciitioiHMl. 
 froui James Rohertsoii to Douglas Uoliert- 
 son, MMist be allowed to avail so far as it 
 may, for the reiiniiurseineut of the le;iatees 
 for the devastavit of James RohertsdU. 
 
 The shares of the lej^atj^es who died l)ofore 
 testator, fall iuto the residue. I>et the com- 
 lulssioner take the accounts according to the 
 Itrinciples of this decree. 
 
 The plaintiffs ai)peale(l. upon the grounds 
 following: 
 
 1. The sale by the executors of William 
 Robertson, of the. personalty of his estate, 
 ^vas not "directed i>y his will," nor was 
 
 *135 
 *it authorized by "an order from the Court 
 of Ordinary, or the Court of Equity." It 
 was. therefore, not "valid in law or equity," 
 and the defendant. Douglas Robertson, hav- 
 ing concurred in such sale, became thereby 
 responsible jointly with his co-executor, 
 James Robertson, for the full value of the 
 chattels thus unlawfully disposed of. 
 
 ■J. If the sale in question were lawful, still 
 Douglas Robertson should be held responsi- 
 ble for the proceeds, as he co-operated and 
 <-oncurred directly with his co-e.\ecutor in 
 •fffecting it, and as by the account thereof, 
 rendered by him to the ordinary, he an- 
 jiounced it oliiciallj' to l)e the joint act of his 
 <-o-exe<utor and himself, and adnntted their 
 joint liability in that behalf. 
 
 o. The assets wasted by James Roliertson, 
 "came to his liands," by the acts of his co- 
 executor, Douglas Roliertson, who ought 
 therefore to be charged with their value. 
 
 [For subsequent opinion, see 4 Rich. E(i. 
 39.] 
 
 Carroll, for appellants. 
 Grithn. contra. 
 
 DT'NKIX, Ch., delivered the opinion of the 
 Court. 
 
 The testator, contemplating the nt'cessity 
 of a sale, in order to make a division of the 
 slaves among the nnmemus legatees men- 
 ti(tned in the sixth and .seventh clauses of 
 his will, directs bis executors to have them 
 api)raised and sold in a partiiular manner, 
 and "to account with the respective legatees 
 for the sales of the negroes."(a) The mode 
 
 {a) To :i proper undorst.nnrlin^' of tliis case, 
 the foUnwiiig flnusps of tlio will of Willi.iin 
 Rolirrtsi'ii. scfin ti> lie iicii'ssary : 
 
 "titli. In ciiiiipliaiico with a indniiso made to 
 my last wife. I will and lic(|iicatli unto Clnis- 
 tiniia Ilatclicr. Joscpli r.irkcr. T'xMijaniin r;irk(>r. 
 Willi:iin I'arkcr, Ibzckinli IV.-n iics jiiid Tracy 
 Hanics. iiriw tho wife of otic TaJi.v. tlio follow- 
 ing negroes, viz: Old Andrew, Maiy. Harriet, 
 Chester, .Jesse, Charlesey, John, (Juincy, Jim, 
 I'hil, George, Peggy, Young Mary, Odin, to be 
 equally divided between them and their heirs 
 forever. 
 
 "7th. I win and bequeath the followin;: ne- 
 groes, viz: — Old I'hil, IVnipey. Youii;: Andrew. 
 Peter, Candis, Caroliu;, Creasy, Elbert, Au- 
 
 •136 
 of sale preseribetl by *the testator being 
 found impracticable, and the necessity of a 
 sale manif«'st. the executors sohl the slaves 
 at puldic outcry, and both signed the sale- 
 idll, which was returned by them to the or- 
 dinary. No objection is ma«le to the fair- 
 ness of the sale, or to the terms, or to the 
 adequacy of the prices at which the proper- 
 ty was sidd, nor is it sought to rescind the 
 sale. Rut the purchasers gave notes for the 
 credit portion of the sale, and James Robert- 
 son, one of the executors, took the larger 
 portion of them and kept the whole, for 
 
 drew, a boy about three years old, William and 
 Kitty, to l)e divideil as follows:--Onc share b» 
 uiy sister, Elizabeth Horn, if she be livini;, if 
 not. to her children — one share to the children 
 of my deceased brother, Henry Roliertson — one 
 share to the children of my deceased brother, 
 I'eter Robertson — one share to my sister, Tem- 
 I)erance Robortscai, if alive, if not, to her chil- 
 dren — one share to the children of my deceased 
 brother, John Robertson— one share to my broth- 
 er Iliiidon Robertson, ind one share to the 
 children of my deceased brother. Nathaniel 
 Roi)ertson. If either of my brothers or sisters 
 die before my death, leaving children, their chil- 
 li 36 
 dren, respectively, arc to take the *share of 
 tlu'ir parents ; and in case the children of ei- 
 ther of my brothers or sisters shoidd die before 
 my death, then the share herehy given to such 
 children, shall Ix^ divided tMiually among my 
 surviving brothers and sisters, and the children 
 of such of my Inothers and sisters who may 
 have died, the said children taking the part, re- 
 spectively, to which their parents would have 
 been entitled if livini:. 
 
 "Dth. 1 devise and lje(|ueath all the remainder 
 of my real estate, and all the residue of my per- 
 sonal estate of every kind and description, to 
 the persons and in the manner mentioned in the 
 seventh clause of this my will. 
 
 "10th. As it may be impracticable to divide 
 the negroes mentioned in th(> sixth and seventh 
 clauses of my will, among the legatees therein 
 named, and as I desire to consvdt the future 
 comfort of my negroes. I hereby direct and re- 
 quire my exe<iitors, after my death, to select 
 three disinterested persons to ajipraise my saiil 
 negroes, and my executors are hereby authorized 
 and required to allow my said negioes to select 
 their owners, who may be jiermitted to take 
 them on a credit of twelve UKaiths. at the said 
 ai)praisement, giving to my executors their 
 Ixnds and apjirovt-d securities for the nnmey. 
 In the «aid appraisement and sale herein di- 
 rected, my executors are reipiired to keep dis- 
 tinct, the negroes mentioned in the sixth clause, 
 from the nciiroes auMitioned in the seventh cl;iuse 
 of this will. :ind account with the resjiective 
 
 j legatees mentioned in those clauses for the sales 
 of tiie neiiroes therein mentioned." 
 
 j The following is the reason, assigned by Doug- 
 las Robertson in his .-inswer, why the executors 
 sold the slaves in a mode difTereut from that 
 [irescribed by the testator: 
 "As to the sale of the negroes mentioned in 
 
 I the sixth iind seventh clauses of the will, this 
 defendant answers, that nearly all of the .said 
 
 negroes, were either luiwillinir or unable to se- 
 lect persons who would take them, under the 
 provisions of the will, at the appraisement, and 
 as the legatees were very numerous and nmch 
 scattered, a large portion of whom ri>side out 
 of the State, and as. unrler the ( ireumstances, 
 the estate could not well have been kept to- 
 gether, nor actually divided, it was deemed best 
 for all concerned, that the said negroes should 
 be sold." 
 
 65
 
 ^13: 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 about five nioutlis. in his possession, wlien 
 aliout one-half of tlieni were delivered to the 
 defendant, his co-executor. It is insisted 
 that the defendant is liable for the sums re- 
 ceived by his co-executor, James Robertson ; 
 — first, because the sale was not directed b.v 
 the will, nor authorized by any decree of the 
 Court of Ordinary, or Court of Equity. It 
 must be borne in mind, that this is not a 
 proceeding to invalidate that sale ; and, in 
 reference to any peculiar liability of the 
 defendant, on that account, it is proper to re- 
 mark, that what this Court would have au- 
 thorized, if the application had been made, it 
 
 *137 
 *will now sanction when done. The neces- 
 sity of the sale was felt by the testatoi*. His 
 regard to his slaves induced him to prescribe 
 the particular mode of accomplishing his 
 purpose. When this was found imiiractica- 
 ble, the executors thought they might adopt 
 the usual mode of making the sale. Strictly, 
 this was not authorized by the will, although 
 the executors might very well have misap- 
 prehended their power, and especially as no 
 objection was made from any quarter. But 
 again, it is said, that assuming the sale to 
 have been both necessary and proper, both 
 executors are liable, each for the acts of the 
 other, because both concurred in the sale. 
 In other words, that, as the sale was made 
 by the authority of both, the defendant is 
 responsible for any sums received by his co- 
 executor, James Robertson, deceased. "Noth- 
 ing Is clearer, and I never knew it question- 
 ed," says Sir John Strange, in Jacomb v. 
 Harwood, (2 Yes. Sen. 267,) "that one execu- 
 tor may release or pay a debt," &c. The 
 notes must, from necessity, have been taken 
 by one of the executors, or they might have 
 been divided. But the possession of the 
 notes was unimportant. Each had a right to 
 receive the proceeds of sales. Without fraud, 
 a purchaser might pay to either of the exec- 
 utors, whether he held his note or not, and 
 his receipt would be a good discharge ; and 
 so it was expressly ruled by the Court of 
 Law in Gage v. Adm'r. of Johnson, (1 McC. 
 492.) If an executor, having received funds 
 of the estate, pays or delivers them over to 
 his co-executor, or joins in a misapplication 
 of them, or joins in a receipt which enabled 
 his co-executor to receive them, he may be 
 made responsible. But the general rule of 
 the Court, as declared in O'Neall v. Herbert, 
 (McM. Eq. 497,) is, that one executor is not 
 liable for the assets which come into the 
 hands of his co-executor ; and the same rule 
 was applied to joint administrators in Cay- 
 den V. Gayden, (Id. 4.'!5). Where, as in this 
 case, the sale is on credit, no means can well 
 be devised by which one executor could pre- 
 fvent his co-executor from collecting the 
 debts, even if he were so disposed, or had 
 the right to do so. The case of Mathews v. 
 Mathews, (Mc:m. Eq. 410.) was cited for the 
 
 *138 
 
 appellant. That *was an application, to the- 
 Court of Equity, for the sale of land, in 
 which both the executor and executrix join- 
 ed. The purpose was to change the invest- 
 ment. The Court ordered the sale, and di- 
 rected that the proceeds should be re-invest- 
 ed by the executor and executrix, and the in- 
 ves-tment reported to the Court. The execu- 
 tor received the proceeds — no re-investment 
 was made, and, five years afterwards, he 
 died insolvent. Chancellor HARI'ER, with 
 nmch reluctance, held the executrix respon- 
 sible. "It is to be observed"" says he. "that, 
 as executors, they had nothing to do with 
 the land ; there does not appear to have lieeu 
 any necessity to sell for the purpose of debts ; 
 and in procuring a sale of the land, they 
 .seem to have volunteered to act as trustees." 
 Again ; "being a party to the suit, Mrs. 
 ^lathews was bound by the decree. The de- 
 cree is, that the executor and executrix shall 
 invest and report to the Court, making it the 
 duty of both to see to the investment. By 
 consulting the records of the Court, she 
 might, at any time, have seen that the exec- 
 utor had not reported any investment. If 
 she had applied to the Court, at any time 
 within five years, the investment by him 
 would have been enforced." The decree was 
 aflirmed by the Court of Appeals. But the 
 avowed reluctance of the Chancellor, as well 
 as the reasons set forth, abundantly prove 
 that as a general rule, each executor is only 
 responsible for his own acts or defaults. 
 
 This Court concurs in the judgment of the 
 Chancellor, and the appeal is dismissed. 
 
 JOHNSTON and DARGAN, CC, concur- 
 red. 
 
 WARDLAW, Ch. having been of counsel, 
 did not sit at the hearing. 
 Appeal dis;missed. 
 
 3 Rich. Eq. *I39 
 
 *A. W. THOMSON, Ex'or of J. PALMER, v. 
 
 E. M. PALMER and Others. 
 
 (Columbia. Nov. an.l Dec. Term, ISoO.) 
 
 [Prhicipal and Siireti/ <S=>1S5V^.] 
 
 Separate judgments were recovered on the 
 same note against a principal and his two sure- 
 ties ; after the death of the principal. R. one 
 of the sureties, paid the amount under a stip- 
 ulation that the judgment and execution against 
 the principal should be assigned to him. which 
 was subsequently done: JJeld that R. was en- 
 titled to be paid, as a judgment creditor, out 
 of the assets of the priiicii)al. 
 
 [Ed. Note.— Cited in Ex parte Ware, 5 Rich. 
 Eq. 474. 
 
 For other cases, see Principal and Surety, 
 Cent. Dig. § 530 ; Dec. Dig. <S=>lb;5'2-] 
 [Executors and Administrators <^=5lll.l 
 
 Costs recovered in a suit at law, against the 
 executor of an insolvent estate, are not to be 
 paid out of the assets of the estate ; if the ex- 
 
 56 
 
 ^;=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 THOMSON V. PALMER 
 
 *141 
 
 foiitor, by mis-plcadinfr, make himsrlf iiersonally 
 liablo th(>rof<.i-, )ip niiist tako the consequences, 
 ami cannot chartje tlieni to the estate. 
 
 (I'M. Note.— For other ca.ses, see K.xeciitors 
 and Administrators, Cent. Dig. § 441); Dee. 
 
 I»i- <:=>ni.i 
 \iiijiiii(tioti (C=2;'.2.i 
 
 Where, after an order enjoinin-jr ail the cred- 
 itors of a testator from suinu tiie e.xecntor, 
 some of the creditors sued tiie executor, tliey 
 were ordered to pay not only their own costs at 
 law, but the costs of th-* executor also. 
 
 [Ed. Note. — For other cases, see Iniunction, 
 Cent. Dij,'. § 519: Dec. Dig. <S=-J:;ii.|' 
 
 [Executors and Adniinistraiors <£=:3K)S.J 
 
 Where a bill is filed by the cxecut(u- of an 
 insolvent estate to enjoin creditors from suins 
 at law and to have the estate adiuiuistered in 
 equity, and the choses, money, &e. of the estate 
 are turned over to the Conunissioner, the execu- 
 tor is only entitled to have a schedule and state- 
 ment reported ot what he has turned over; he- 
 is not entitled to credit for the choses turned 
 over, except i)rima facie; for, if it sliould turn 
 out that any of the choses arc not ^ood. through 
 the laches or fault of the executor, he should 
 be charged with the amount. 
 
 fEd. Note. — For other cases, see Executors 
 and Administrators, Cent. Dig. S 1615; Dec. 
 Di;:. <S=540S.] 
 
 [Executors and Administrators (S=»40S.] 
 
 Nor is the executor entitled to commissions, 
 as for paying away money in debts and legacies, 
 &.C. for choses and moaey turned over to the 
 commissioner. 
 
 • I Ed. Note. — For other cases, see Executors 
 and Administrators, Cent. Dig. § 1G15 ; Dec. 
 Dig. <@=40S.] 
 
 Before Johnston, Ch. at Union, June, 1848. 
 
 Johnston, Ch. This case comes up on the 
 report and supplemental report of the com- 
 missioner, to which the plaintiff has put in 
 ei;iht, and the creditors of the testator two 
 exceptions. 
 
 1. The plaintiff's 1st exception is, ""because 
 the commissioner has allowed Thomas 
 Reeves's dAnand, the surety of the testator. 
 to rank as a judj,'ment debt, whereas justice 
 to the simple contract creditors reciuired 
 that it should rank as a simple contract 
 debt." 
 
 I have no hesitation in overruliii;^ this ex- 
 ception. By the evidence, it appears that 
 Reeves and Williamson were sureties to a 
 sealed note, given by Talmer to one Wells 
 of Georgia. Wells sued all Ihe iiarties .sei)a- 
 rately, in the Federal district Court, and ob- 
 tained judgments and executions. After 
 
 *140 
 Palmer's death, the *exeiution against 
 Reeves being levied on his land, he paid the 
 amount to the agent of Wells, under a stipu- 
 lation that the judgment and execution 
 against Palmer should be assigned to him, 
 which was subsequently done. 
 
 It has been determined in the law courts 
 of this State, that where a surety pays oft" 
 an execution against his principal, under an 
 understanding that the execution should be 
 kept open for his benefit, the payment does 
 not extinguish the lien, so far as it can oper- 
 ate in ills favor. The law of this Court is, 
 
 that when a surety pays a debt of his prin- 
 cipal, he has a right to have all the securities 
 held by their cre<litor assigned to him : much 
 more is he entitled to it where the payment 
 was made, as in this case, up(»n the comlition 
 that the assignment would be made. 
 
 The lien now insisted on, was a subsisting 
 lien at the death of Palmer, and what dif- 
 ference can it make to the other creditors, 
 whether the creditor himself enforced it or 
 claimed its benetit, or assigned it to another, 
 that he might do soV The exception is over- 
 ruled. 
 
 The 2d and .'Jd exceptions will l)e taken up 
 with the creditor's I'd exception. 
 
 4th. The plaintiff's 4th exception is, ""be- 
 cause the commissioner's report has over- 
 charged the executor on the interest account, 
 having charged compound interest, without 
 a moment's rest." This exception ])roceeds 
 upon a misconception of the .scheme and cal- 
 culations of the report, as will appear from 
 an attentive examination of the rejiort. The 
 exception is overruled. 
 
 5th. The 5th exception is, '"because the com- 
 missioner has not credited the executor with 
 the cash, notes and bonds handed over by 
 him to the commissioner, to the amount of 
 several thousand dollars."(fl) 
 
 The commissioner has misconceived the 
 
 [)un)ort of the exception, in his judgment 
 
 overruling it. The exception does not call for 
 
 an account of the connnissioner's adniinistra- 
 
 *141 
 
 lion of the *funds, but merely asks that the 
 executor be credited with the funds turned 
 over. I do not thiidv the executor is entitled 
 to credit for the choses turned over, except 
 prima facie. If it should turn out that any 
 of the choses are not good, through the laches 
 or fault of the executor, he should l>e charged 
 with the amount. But he is entitled to have 
 a schedule and statement reported of what he 
 has turned over to the commissioner, and, in 
 this view, the exception is sustained. 
 
 Gth. The sixth exception is, ""because the 
 report does not credit the exe<-utor with full 
 commissions," &c. The exception has been 
 explained into an assertion that the executor 
 is entitled to connnissions, (as for paying 
 away) for choses and money turned over to 
 the commissioner. I do not think (as I have 
 oflen ruled without an appeal) that this is 
 paying away money in debts and legacies, &c. 
 within the meaning of the statute, and the ex- 
 ception is overruled. 
 
 7th. The .seventh exception will be consid- 
 ered with the LM exception of the creditors. 
 
 The creditors's two exceptions remain for 
 consideiation. The first of them is, ""because 
 the I'xecutor of Palmer is not entitled to 
 a credit for the judgment of the P.aiik 
 
 _ («) For a full understanding of this and the 
 7th exception, see this case as reported, 2 Rich. 
 Iv!. .'{2. R. 
 
 ®=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inde.'ces
 
 ■141 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 against A. W. Tbomson, as a judgment debt 
 at the death of the testator, inasmuch as 
 the debt upon which the judgment was re- 
 covered was upon a simple contract, and the 
 judgment was recovered since the testator's 
 death. This item, in the report, is set down 
 at $674.66, with $20 costs." The exception 
 does injustice to the report. The commis- 
 sioner does not charge the estate with the 
 judgment recovered against Thomson, as, in 
 itself, a judgment against the testator, or 
 ranking as a judgment against the estate at 
 his death. But regarding the liability of 
 the estate to Thomson as a simple contract 
 liability, the commissioner allows him the lien 
 of another judgment, which the commissioner 
 conceives he held as colhiteral security to 
 indemnify him on that contract. The facts 
 are these, as stated by the commissioner in 
 his judgment upon the exception. A note was 
 discounted in the Banli in 1828, endorsed by 
 
 *142 
 John Anderson, Z. P. Herndon, M. B. Bo*gan 
 and Daniel A. Mitchell, for about $1500, and 
 as security to his indorsers, Palmer, the testa- 
 tor, and his father, gave a confession of 
 judgment for $1500, with interest from 2d 
 July, 1828. The execution under this judg- 
 ment was lodged in the sheriff's office, July 
 5th, 1828, in the coroner's office, July 30th, 
 1828, and again in the sheriff's office, July 
 19th, 1831. On the 14th Jane, 1832, Hern- 
 don, one of the indorsers, made the following 
 indorsement on the execution: "The judg- 
 ment in this case having been given to secure 
 the plaintiffs as indorsers of the defendants 
 to the Bank, and the note upon which they 
 were indorsers as originally made, having 
 been taken out of the Bank and new indors- 
 ers given, leaving out my name, this is to 
 certify that I have no other interest in the 
 judgment, and assign to the remaining in- 
 dorsers all my interest in the same, June 
 14th, 1832. Z, P. Herndon." There is the fol- 
 lowing indorsement on the execution, without 
 date, — "I assign all my right and interest in 
 the within execution to those who may in- 
 dorse for the said D. and J. Palmer, (.signed) 
 John Anderson." "This fi. fa. belongs to D. 
 A. Mitchell, W. K. Clovvny, John Rogers and 
 A. W. Thomson," was also a memorandum 
 in the hand writing of John Rogers, late 
 clerk, who as well as Anderson, is dead. 
 There is also the following indorsement, with- 
 out date, "Received $13.90, attorney's and my 
 cost. (Signed) B. Johnson, Sheriff'," Thom- 
 son took a confession from Palmer for 
 $909.69, April 17th, 1842, on a note dated Jan^ 
 uary 1st, 1841. Judgment against Thomson 
 was obtained on a note indorsed by him in 
 Bank, dated October 12th, 1841, which judg- 
 ment he paid off, amounting, as before stated, 
 to $674.66. The commissioner has allowed 
 him the benefit of the first mentioned judg- 
 ment to the extent of this payment, and I 
 cannot say that there is not some intrinsic 
 58 
 
 evidence in the circumstances favoring this- 
 conclusion. Still, it must be remembered- 
 this is a claim touching the rights of other 
 creditors of the estate, and should be well 
 supported. It is true, every party to the 
 ti'ansaction is dead, except Herndon, Thom- 
 son and Clowny, and the latter may be inter- 
 ested. Still I think there must be better evi- 
 
 *143 
 dence accessible. Plas the *Bank been ex- 
 amined to shew that the indorsement of 1841 
 was in renewal of that of 1828".'' Upon the 
 present evidence I should (but with great 
 hesitation) incline to sustain the commis- 
 sioner's conclusion. I could not say it was 
 grossly erroneous. If creditors wish to in- 
 vestigate the matter further, they may go 
 before the commissioner. If not, the excep- 
 tion is overruled. 
 
 2nd. The creditors's second exception is, 
 "Jjecause the counnissioner ought to have 
 charged the estate with the costs on the 
 suits at law, brought by the creditors 
 against the executor, as a preferred debt, or 
 at least of equal degree with the demands 
 upon which the costs accrued. And if the 
 estate is not chargeable, the executor is lia- 
 ble, personally, for costs. Fii'st, for the pre- 
 ferred debts, inasmuch as there were ample 
 funds known to the executor to pay the 
 debts ; and, secondly, he is liable, on the 
 grounds of his plea and defence in all the 
 cases." Connected with this, is' the plain- 
 tiff"'s 2d exception. "Because the commis- 
 sioner has charged the estate of Jeffrey 
 Palmer with $382,121/2, the costs of the 
 plaintiffs, incurred in about twenty-five suits, 
 which plaintiffs had sued at law after they 
 were enjoined by the order of this Court, and 
 most, if not all of them, had rendered their 
 demands to the commissioner of "this Court 
 under the order ;" also, his third exception, 
 "because the funds of an insolvent estate are 
 not liable for costs incurred by creditors 
 suing the estate ; but the creditors thus 
 suing, must pay the costs out of their share 
 of the funds of the estate;" and his seventh 
 exception, "because the report should have 
 appropriated a fund to pay the costs in this 
 case, and the costs to which the executor 
 was put in defending himself in some twen- 
 ty or twenty-five cases, in which the commis- 
 sioner has taxed the costs of the plaintiffs, 
 as stated in his report." 
 
 The fact is, the commissioner has made 
 no decision or recommendation, either as to 
 the costs of the case or any other costs, and 
 the exceptions are intended to elicit a judg- 
 ment from the Court upon the sul)ject. 
 There is no difficulty as to the costs of this 
 case. They must be allowed out of the es- 
 
 *144 
 fate, and the *comnnssioner is so instructed.. 
 With respect to the suits at law there is 
 more difficulty. The testator died 14th July, 
 
 1842. The executor qualified 13th January,, 
 
 1843. His first bill was filed 14th June,.
 
 THOMSON V. PALMER 
 
 •146 
 
 184.1, for leave to sell the real estate, in 
 order to pay the creditors, on wiiich of the 
 same date, Chancellor Johnson passed an 
 order that a rule he published for three 
 months, requiring testator's creditors to 
 bring in and estal)lish their demands liy the 
 first of the succeeding De<enil)cr. What 
 suits had been hrought befitrc this order 
 does not appear, but there is a list of suits 
 Ijrought, seven in number, and on simple 
 contract debts, the (5th and 2;id September, 
 1843. To six of them, the executor pleaded 
 the general issue, and gave notice of the 
 plea of plene administravit. but did not iiut 
 in the plea. To the seventh, which was a 
 Summary Process, he pleaded the general 
 issue and gave notice of the plea of plene 
 administravit prneter, and decree jiassed for 
 plaintiff. On 2.3d February, 1845, writs were 
 lodged in some other cases on preferred or 
 specialty debts; in one of which, no plea 
 was put in ; in the other six, the plea was 
 the general issue. None of these creditors 
 were actually enjoined from bringing their 
 suits, although they were requii-ed to estab- 
 lish them before the commissioner. I do not 
 think they can legally be made liable for 
 the costs. From the pleadings, the executor 
 was, in most of the cases, liable for them 
 personally. But I think, under the difticul- 
 ties of his position, as disclosed in the previ- 
 ous stages of this litigation, his conduct 
 must be held to have ])een that of a faithful 
 trustee, and he is entitled to these costs out 
 of the estate. In other words, the first alter- 
 native of the creditors's second exceittion, 
 presents the true rule in this case. 
 
 It is ordered that the foregoing opinion 
 stand as a decree on the several exceptions. 
 
 It is further ordered, that the report be 
 reconmiitted. to be reformed according to 
 this judgment. 
 
 In obedience to the above order of his 
 Honor, Chancellor Johnston, re-committing 
 
 *145 
 the report to be reformed, the commis*sion- 
 er made a second report, which came up, on 
 exceptions, before his Honor, Chancellor 
 Dunkin, in June, 1849, who pronounced the 
 following decree. 
 
 Diuikin. Ch. This cause was heard on the 
 commissioner's report, prepared under the 
 decree of Chancellor Johnston. The excep- 
 tions are substantially the same as those 
 made to the former report, which were heard 
 b.v Chancellor Johnston, and on which he 
 has pronounced a decree. It seems to me 
 to he a great abuse to put parties to the ex- 
 pense of two sets of exceptions, two rejtorts 
 of the commissioner, upon the same excep- 
 tions, and the trouble of investigating the 
 matter, simply to ascertain that the points 
 have been made, and have been determined 
 by a preceding Chancellor, whose judgment 
 is conclusive until reversed by a higher trili- 
 unal. A difficult.v may sometimes occur as 
 to the time at which the appeal should lie 
 taken, but no sudi difficulty exists iu this 
 
 caise, and, moreover, the practice to which 
 the Court has adverted, affords no aid or 
 protection, if the party or his solicitor has 
 erred in judgunMit. 
 
 It is ordered and decreed that the excep- 
 tions l)e overruled, and that the report of the 
 commissioner i>e contirmed and Itecome the 
 judgment of this Court. 
 
 The complaint api)eals in this case from 
 the decrees made by Chancellors Johnston 
 and I»uiikin. and will insist on the .same 
 grounds in the Court of Appeals, that were 
 taken as exceptions to the reports of the 
 coujunssioner made in the case. 
 
 The creditors also appealed, on the fol- 
 lowing grounds, viz: 
 
 1st. Because the executor of J. Palmer is 
 lialde, personally, for the costs of the suits 
 at law, by his false pleas and unnecessary 
 defence. 
 
 2d. Because the extK-utor of Palmer ought 
 not to lie allowed the judgment of John An- 
 derson and other v. Daniel Palmer and Jef- 
 fre.v Palmer. There is evidence on the fl. fa. 
 in tins case that it has been satisfied, and 
 
 *146 
 there is no evidence *of any connection be- 
 tween this judgment and the note indorsed l)y 
 the executor for J. Palmer, which was many 
 years after. 
 
 Thom.son, for complainant. 
 Ilerndon, for the creditors. 
 
 JOIIN8TON, Ch. delivered the opinion of 
 the Court. 
 
 Though the subjects embraced in this ap- 
 peal are numerous, it is deemed necessary 
 to take notice of only the three or four of 
 them that were regarded of importance in 
 the argument. 
 
 And, first, the claim of Beeves as surety 
 of the testator. The opinion exjiressed in 
 the decree of June, 1848, meets the appro- 
 bation of this Court. We deem it unneces- 
 sary to add any thing to the reasoning of 
 the Chancellor on this point: And merely 
 refer, for additional authorit.v, to the case 
 of King V. Aughtry. (3 Strob. Eq. 140i in 
 which a surety who i)aid off a joint judg- 
 ment against himself and his principal, aft- 
 er the princii)ars death, was declared en- 
 titled to have it set up, in equity, against his 
 ( state. 
 
 Witii resi)ect to costs. Tliis Court is sat- 
 isfied that the direction to allow the costs 
 of this suit out of the estate was correct, 
 and according to usage. With regard to the 
 costs incurred at law, by both parties, it Is 
 necessary to distinguish between tho.se in- 
 curred before, and those incurred after the 
 li5th of June, 1843. It now appears that, 
 after the order of the 14th of June, 1843, 
 wiiich was brought to the view of the Chan- 
 cellor, (and which merely provided for call- 
 ing in the creditors.) another order, dated 
 the next day. was passed by Chancellor 
 Johnson, enjoining them from pro<"eeding at 
 law. The creditors who sued after that 
 
 5d
 
 *146 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 order, were in contempt ; and, so far from 
 being entitled to aslc this Court to give 
 them costs, are liable to an order that they 
 pay all the costs, of both parties, in those 
 suits: and it is so ordered. 
 
 With respect to costs of suits brought be- 
 fore the order of injunction, the determina- 
 tion, must depend upon other principles. 
 It is ruled at law, in the case of Hutchin- 
 son V. Bates, (1 Bail. Ill) that the cost part 
 of Judgments obtained against insolvent es- 
 tjttes, (such as this of Palmer, which with 
 
 *147 
 the addition of the *realty. is not good for 
 hardly a tenth part of the debts) forms 
 no part of the .iudgment against the as- 
 sets. To allow them that effect, would not 
 only entitle the suing creditor to take the 
 proportion of assets properly assignable to 
 his demand, but to al)sorb the proportions of 
 other creditors, in payment of his costs. 
 
 Upon the principles of that case, the cred- 
 itors who sued at law before the injunction, 
 are not entitled to their costs out of the es- 
 tate. If any of them are entitled to them 
 against the executor personally, it must be 
 owing to his mis-pleatling, (of which the com- 
 missioner will enquire, on further reference:) 
 and, in that case, he must bear the conse- 
 quences. 
 
 The view now taken, shows that the al- 
 lowance to the executor of his costs at law, 
 out of the estate, was lumecessary and im- 
 provident, and so much of the decree is 
 overruled. 
 
 The only remaining question relates to the 
 judgment, the lien of which is claimed by 
 the plaintiff, in consequence of the pay- 
 ments made by him to the Bank as surety 
 of his testator. In the investigation, which 
 the Chancellor allowed to be made at the 
 instance of creditors, the burden of clear- 
 ing up the transaction should have been 
 thrown on the plaintiff" ; and it is so or- 
 dered. 
 
 It is ordered that the decree of June, 1S4S, 
 be reformed according to this opinion, and 
 in all other resi^ects that it be affirmed: 
 that the decree of Chancellor Dunkin be 
 set aside; and that the reports be re-com- 
 mitted to the commissioner for further in- 
 vestigation upon the points above indicated, 
 and to be reformed according to the forego- 
 ing directions. 
 
 DUNKIN and DARGAN, CC, concurred. 
 Decree reformed. 
 
 risht cannot be established at law, without the 
 aid of the discovery which he seeks: antl the 
 discovery must be established by the answer, in 
 order to entitle the Court to maintain the bill 
 for relief. 
 
 [Ed. Note. — For other cases, see Discovery, 
 Cent. Dig. § 21 ; Dec. Dig. <S=j19.] 
 
 [Ditcorert/ <©==>6.] 
 
 But a party may have a bill of discovery, 
 not only wheie he is destitute of otlier evidence 
 to establish his case, but, also, to aid such evi* 
 dence, or to render it jnnecessary. 
 
 [Ed. Note. — For other cases, see Discovery, 
 Cent. Dig. § 7; Dec. Dig. <^=^Q.] 
 
 Before Dargan, Ch., at Spartanburgh, 
 Term, lS.oO. 
 
 3 Rich. Eq. *I48 
 
 *M. C. STACY, Ex'or of Robert Stacy, v. 
 
 JAMES L. I'EARSON, GEORGE 
 
 BOBBITT et al. 
 
 (Columbia. Nov. and Dec. Term, 1S50.) 
 
 [Discovery <@=:=19.] 
 
 Where the liill is for discovery and relief, 
 the plaintiff must shew, affirmatively, that his 
 
 The decree of his Honor, the Circuit Chan- 
 cellor, is as follows. 
 
 Dargan, Ch. The complainant charges in 
 his original bill, that the defendants, Pear- 
 son and Bobbitt, confederating together, by 
 fraud and collusion, have possessed them- 
 selves of certain notes of Bobbitt, due to 
 the testator, Robert Stacy, at the time of 
 his death, and refuse to deliver them up. In 
 his amended bill, he charges the same collu- 
 sive and fraudulent possession of another 
 note, due by the defendant Bobbitt, to the 
 testator, for the sum of two hundred and 
 tifty dollars. The notes are all specihcally 
 described, and the complainant seeks a dis- 
 covery, and that the notes may be delivered 
 up. The defendant, Bobbitt, has pleaded to 
 the jurisdiction of the Court, or ratht>r he 
 has insisted upon that objection in his an- 
 swer, on the ground, that if the facts stated 
 are true, it is not a matter of equitable cog- 
 nizance, and the complainant had adequate 
 remedy at law. The complainant charged 
 a fraud and collusion,- and sought a dis- 
 covery as to facts. 
 
 He had a right to a discovery, and the 
 Court having entertained the bill for a 
 discovery, had the right to retain it for judg- 
 ment. The plea or objection to the jurisdic- 
 tion is overruled. Has the defendant, Bob- 
 bitt, fraudulently possessed himself of his 
 notes, due to testator, by collusion with one 
 of the executors (his co-defendant, Pearson,) 
 as charged in the bill? He admits in his 
 answer, that the testator did hold agahist 
 him, at a period not long antecedent to his 
 
 *149 
 death, the notes described in the com*plain- 
 ant's original bill. But he says that these 
 notes were, on a settlement between him and 
 the testator, paid and taken up. He de- 
 nies that the testator ever held against him 
 a note like that described in the comphiin- 
 ant's amended bill. But he does not deny 
 that he owed the testator the sum of two 
 hundred and fifty dollars, for borrowed mon- 
 ey, which the complainant supposed and 
 charged to have beeu secured by note. 
 
 It was clearly proved that Bobbitt owed 
 old Mr. Stacy a considerable sum of money, 
 equal, or about equal, to the value of his 
 land, and that this indebtedness continued 
 
 60 
 
 ®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 STACY V. PEAllSON 
 
 *151 
 
 up to a very short iKMiod lu'foro tho testa- i 
 tor's death, lie toUl one witness that he had ] 
 no means of paying tins di'lit Init by the sale j 
 of his hind, and asked the witness to buy it. \ 
 Ho seemed to consider the land as already j 
 belonging to Stacy, the (Ider, for he said that | 
 it was a cheap l>argain at the price for which 
 Stacy oflfere<l to sell It. 
 
 It was proven by one witness, that on a 
 further advance by testator, in taking up a 
 note of Hohhitt from a Mr. Swan, it was 
 stipulated, that if Bohliitt failed to pay, old 
 Stacy was to have his land. The notes were 
 seen in testator's iMisscssion nof long before 
 his death. The evasions of this defendant 
 tell strongly against him. He promised to 
 shew, satisfactorily, that he had paid the tes- 
 tator all that he owed him. This he has 
 failed to do. The land has not been disposinl 
 of, and is still his. He has not shewn how 
 he became ixissessed of funds to discharge 
 this (comparatively speaking) large indelit- 
 edness. I am perfectly satisfied fi'om the 
 evidence, that he still owes the three notes 
 described in the original bill. He flenied in 
 the answer, ever having owe<l the testator 
 such a note as that described in the amended 
 bill. Yet, as I have remarked, he does not 
 deny owing the sum of two hundred and fif- 
 ty dollars, charged to have been borrowed 
 from the testator. 1 cannot say that I am 
 satisfied that he ever gave his note for this 
 amount, but I am .satisMed that he borrowed 
 the money. lie could not deny borrowing 
 this sum, but evaded the question, and con- 
 
 *150 
 tended that he had paid *all that he owed. 
 From his own admission, in the presence of 
 Mr. Thomson and Mr. Tet^ling, it is iniix/s- 
 sible to resist the conclusion, that he bor- 
 rowed money from old ^Ir. Stacy, on the 
 Sunday previous to the Monday on which he 
 paid two hundred and fifty dollars to Mr. 
 Tucker, on the execution against him. The 
 receipt for this money passinl out of Bobbitt's 
 possession into that of old Mr. Stacy. At 
 least, there is strong ground for such an in- 
 ference. For the receipt was produced upon 
 the trial, by the complainant. There is some 
 signiticancy in this fact. It ni»iy have been 
 left with the testator, in the confidence that 
 evidently subsisted between the parties, as 
 a memorandum in the place of a note. 
 
 It is ordertHl and decreed that the defend- 
 ant, Hobbitt, account to the complainant, 
 as the executor of K. Stacy, for the three 
 notes described in the bill, with interest, 
 and for the sum of two hundred and fifty 
 dollars without interest, and that the com- 
 missioner state the accounts. 
 
 The evidence in support of the complain- 
 ant's charges against his co-executor, James 
 L. Pearson, is not so full and satisfactory. 
 
 I am strongly impressed that there may 
 be something wrong in his conduct, in re- 
 gard to the notes which he owi'd his father 
 previous to his death. His answer does not 
 
 come up fully to meet the allegations of the 
 bill in this partlcidar. He claimed Bobbitt's 
 notes as a gift from his father to his wife, 
 and said that Bobbift had got them to cal- 
 culate the interest, and refu.sed to deliver 
 up or to pay them. These are the notes 
 which Bobbitt says he has fully p.iid. 
 
 Confederates do, sometimes, f.iil out in 
 th(> division of the spoil. 1 shall not con- 
 clude any thing uihui this point at the pres- 
 ent time. 
 
 It is ordered and <lecreed that the ac- 
 counts of .Tames L. Pearson, as one of the 
 executors of Robert Stacy, be referred to the 
 comndssloner, and that the connnissioner. in 
 taking the account, impiire as to the indebt- 
 edness of said I'earson to testator at his 
 death, as well as the estate sin<v his death, 
 and that he hear testimony on the subject. 
 *151 
 
 *lt is also ordered, that the account of 
 M. C. Stacy, one of the executors of It. Stacy, 
 deceased, be referred to the Connnissioner, 
 and that he report thereon. 
 
 The defendant, I5obbitt. aiii>ealetl. and 
 moved this Court to reverse the decree, on 
 the grounds, 
 
 1st. Because the Court had no jurisdiction 
 of the case as made by the bill and answer, 
 as there was a plain and ade(iuate remedy at 
 law. 
 
 2d. Because the bill is nudtifarious. set- 
 ting up separate and distinct demands 
 against the defendants, in which they had 
 no interest in connnon. 
 
 .'id. Because there was not sufhcicnt proof 
 that Bobbitt had not paid to testator the 
 debts which he owed him, to overcome the 
 oath of Bobbitt and the production of the 
 notes taken up and cancelled. 
 
 4th. Becau.se there was no proof that Bob- 
 bitt ever borrowed the two hundred and fifty 
 dollars referred to in the amended bill, or if 
 he borrowed it, that it had not been refunded. 
 
 5th. Because the decree was, in other re- 
 spects, against law and evidence. 
 
 Bobo, for the motion. 
 Tucker, contra. 
 
 Dl'XKlX, Ch. delivered the opinion of the 
 Court. 
 
 The allegation of the complainant is, that, 
 the defendant, Bobbitt, was indebted to the 
 testator on four promissor.v notes, which 
 were unpaid at his death, and of which the 
 defendant obtained posse.><sion by collusion 
 with J. I>. IVarson, the co-executor. On the 
 subject of collusion, the Chancellor, express- 
 ing a strong impression that there was some- 
 thing wrong in the conduct of the executor, 
 distiiutly declares that he "shall not con- 
 clude any thing upon this point at this time." 
 
 He places the right of the complainant to 
 implead Bobbin in this jurisdiction, on the 
 ground of discovery; and that, having ju- 
 risdiction for the purpose of discovery, the 
 
 61
 
 452 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 *152 . 
 
 Court was at liber*ty to go ou and give relief. 
 Where the bill is for discovery and relief, 
 the plaintiff must shew, affirmatively, that 
 his right cannot be established at law, with- 
 out the aid of the discovery which he seeks ; 
 and the discovery must be established by the 
 answer, in order to entitle the Court to main- 
 tain the bill for relief. Russell v. Clark's 
 ex'rs, (7 Cranch, 89 [3 L. Ed. 271],) Laight 
 V. Morgan, (1 Johns. Cas. 429.) But a party 
 may have a bill of discovery, not only where 
 he is destitute, of other evidence to establish 
 his case, but, also, to aid such evidence, or 
 to render it unnecessary. Mitf. Eq. PL by 
 Jeremy, 307 ; see also. Story Eq. PI. 319, note. 
 
 In this case, the plaintiff's demand was 
 purely of a legal character. He has obtained 
 from the defendant the discovery which he 
 sought, and all the circumstances disclosed 
 by that answer, as well as those to which 
 witnesses have testified, are peculiarly prop- 
 er for the consideration and adjudication 
 of the ordinary tribunal. 
 
 It is ordered and decreed that the plaintiff 
 be at liberty to institute proceedings at law 
 for the amount alleged to be due by the de- 
 fendant, George Bobbitt, to the estate of the 
 testator, R. Stacy, deceased ; that the pro- 
 ceedings be prosecuted in the name of both 
 the executors, as plaintiffs, and that the de- 
 fendant, J. L. Pearson, be enjoined from re- 
 leasing, or in any manner interrupting the 
 recovery of said demand. It is further or- 
 dered, that the bill be retained until the 
 determination of said proceedings at law, or 
 until the further order of this Court. 
 
 The decree of the Circuit Court is modified 
 according to the principles herein stated. 
 
 JOHNSTON, DARGAN and WARDLAW, 
 CC. concurred. 
 Decree modified. 
 
 3 Rich. Eq. *I53 
 
 *IRA ARNOLD, Adm'r of Robert Brownlee, v. 
 
 GEORGE MATTISON. 
 
 (Columbia. Nov. and Dec. Term, 1850.) 
 
 [Mortgages <®=>3S.] 
 
 If an instrument absolute on its face, can 
 be converted, by parol, into a defeasible instru- 
 ment, except where the omission to reduce the 
 defeasance to writing was occasioned by fraud 
 or mistake, the evidence must be very clear and 
 convincing; and where the allegations of the 
 bill are denied by the answer, there must be 
 more than the testimony of one witness. 
 
 [Ed. Note.— Cited in Lee v. Lee, 11 Rich. Eq. 
 582; Anderson v. Rhodus, 12 Rich. Eq. 107; 
 Campbell v. Linder, 50 S. C. 171. 27 S. E. 648 ; 
 Petty V. Petty, 52 S. C. 55, 50, 29 S. E. 40G; 
 Brown v. Bank of Sumter, 55 S. C. 70, 32 S. 
 E. 816: Brickie v. Leach, 55 S. C. 524, 33 S. 
 E. 720; De Hihns v. Free, 70 S. C. 349, 49 
 S. E. 841; "Williams v. McManus, 90 S. C. 
 493, 73 S. E. 1038. 
 
 For other cases, see Mortgages, Cent. Dig. 
 §§ 109, 110; Dec. Dig. <©=>38.] 
 
 [Equity <©=^25.] 
 
 Where a grantor executes an absolute con- 
 veyance of his property to protect it against the 
 claim of his creditor, reserving, by secret agree- 
 ment, an interest in himself, neither he, nor his 
 administrator, can come into Court to be re- 
 lieved of the fraud. 
 
 [Ed. Note. — For other cases, see Equity, Cent. 
 Dig. § 85; Dec. Dig. tS=:525.] 
 
 Before Johnston, Ch., at Abbeville, June, 
 1850. 
 
 The following is the decree of his Honor, 
 the Circuit Chancellor : 
 
 Johnston, Ch. This is a bill for the sur- 
 render of certain slaves conveyed to the 
 defendant by Robert Brownlee, the intestate 
 of the plaintiff, by an instrument purporting 
 upon its face to be an absolute bill of sale. 
 It is alleged to have been intended as a mort- 
 gage ; and proof was introduced of a parol 
 stipulation, that it was to become defeasible 
 by the re-payment of the money within seven 
 years from its date. 
 
 I deem it sufficient to remark, that if an 
 instrument, absolute on its face, can be con- 
 verted, by parol, into a defeasible instrament, 
 except where the omission to reduce the de- 
 feasance to writing was occasioned by fraud 
 or mistake, the evidence must be very clear 
 and convincing; and where, as in this case, 
 the allegations of the bill are denied by the 
 answer, there must be more than the testi- 
 mony of one witness. (4 Kent, 143 ; part 6, 
 sec. 58.) Neither of the.se conditions is ful- 
 filled in this case. There is no circumstance 
 in the case tending to show, that if this was 
 a bona fide transaction, as between the par- 
 ties, any defeasible conveyance, or anything 
 else than an absolute conveyance, was or 
 could have been contemplated. 
 
 The defendant Mattison, already held the 
 oldest lien in his judgment, for the money 
 already due him ; and the advances which he 
 was to make on Brownlee's account, (which, 
 
 *154 
 together *with what was already due him, 
 were the consideration of the conveyance.) 
 were to be paid on another judgment. These 
 gave him all the lien he needed. Why, then, 
 under the circumstances, convert the general 
 lien of the judgments into the specific lien of 
 a mortgage? What motive could there be 
 for such a procedure? And, if no motive 
 for a lieu could exist, is not the inference 
 natural and Irresistible, that an absolute 
 conveyance was designed? I can draw no 
 other conclusion, if the transaction was not 
 fraudulent. If fraudulent, however, the 
 plaintiff is not entitled to a decree. 
 
 There are only two conceivable modes in 
 which fraud could have entered into the 
 transaction : 
 
 1. It may have been intended to convey 
 the property to Mattison, as a cover against 
 the debt of Robertson, drawing nigh to judg- 
 ment, as testified by George W. Brownlee, 
 coupled with a secret agreement, reserving 
 
 62 
 
 <g=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 BAILEY V. PATTERSON 
 
 ^156 
 
 an interest in Robert Browiilt-o, the KiJiiitor. 
 With this view, several circuiustjuues in tlie 
 case may harmonize. But if this was the 
 nature of the transaction, neitlier Robert 
 Brownlee, \Yho was particeits criminis, nor 
 his administrator, who stands in his shoes, 
 can come to be relieved of his own fraud. 
 It would be an encourajrenient to fraud, to 
 allow a party to it to stand in the same con- 
 dition of safety as if no fraud were intended, 
 and in an iMiual condition, wbetlier his fraud 
 were successful or not. Equity will e.xecute 
 no corrupt agreement, but leave the [larties 
 in the condition they have prei»ared for them- 
 selves. 
 
 2. If, however, the fraud was of another 
 character ; if Mattison imposed an alisolute 
 bill of sale on Brownlee. who supposed it 
 contained a defeasance — this is not the case 
 made by the bill — and, therefore, no decree 
 can be given on the evidence. But, as I 
 have said, it Is altogether improbable that 
 these parties could have stipulated for a de- 
 feasible instrument with any other view 
 than to defraud third persons, and upon that, 
 I have stated my conclusions. 
 
 It is ordered that the bill be dismissed. 
 *155 
 
 *Tlie complainant appealed, on the follow- 
 ing grounds: 
 
 1. Bwause the circumstances inherent in 
 the transaction, and the other evidence of the 
 case, were suliicient to establish the fact, 
 that the bill of sale in question was executed 
 subject to a defeasance, to become void on the 
 payment of defendant's judgment, and the 
 amount paid by him on a judgment in favor 
 of S. L. Maddox against the complainant's 
 intestate, and Geo. W. Brownlee, and was in- 
 tended by the parties as a mortgage only. 
 
 2. liecause it is respectfully submitted, 
 that it was not necessary to allege in the bill 
 that the defeasance was omitted by fraud 
 or mistake, but that the general allegation, 
 that it was agreed that the bill of sale .should 
 only operate as a mortgage or yiledge, was 
 sutticient to entitle the complainant to the 
 benefit of evidence showing cither fraud or 
 mistake. 
 
 3. Because, even if the bill of sale was 
 executed upon a corrui»t agreement to de- 
 fraud creditors, it is resiiectfully submitted 
 that the defendant could not avail himself 
 liis own tort, in taking possession of the slaves 
 after IU)bert Brownlee's death, who died 
 seized of them, and the Court should not 
 have protected him in such tortious ix)sses- 
 sion. 
 
 4. Because tiie decree is in other respects 
 contrary to the evidence and equity of the 
 case. 
 
 .Sullivan, for appellant. 
 I'errin & MeGowen, contra. 
 
 PER criil.^M. This Court concurs In 
 the decree of the Chancellor ; and it is order- 
 
 ed that the .same be affirmed. an<l the appeal 
 dismissed. 
 
 JOIINSTOX, DT'XKIN and l^AUC.V.N, CC, 
 concurring. 
 
 Decree allirmed. 
 
 3 Rich. Eq. *I56 
 
 ♦JOHN K. BAII.EY and Otli.'is v. WY.MT 
 I'ATrKRSOX and Others. 
 
 (Colunii)ia. Nov. and Dec. Term, ISoO.) 
 
 [Willt <S=3r»()f;.l 
 
 Testator beqiieutlied as follows: "I uive and 
 ijequeath to my daimiiter M. li., one dollar; I 
 also fjive and bc<|iifatli to the heirs of her body, 
 aiy iie^To iiirl I'oll. at fom- iiinidied dollars: 1 
 give and l)c(|iieatli tu the said heirs of her body 
 oue-twelt'tli part of uiy clear estate, to be equal- 
 ly divided auiong them." At the death of testa- 
 tor. M. B., who was theu livin:;. had several 
 children, some of whom were in esse at the 
 date of the will, and some had been horn after- 
 wards ; J/cld that the l)ei]uest of Toll was not 
 to M. B., but to her children livin.i: at the death 
 of testator. 
 
 [Ed. Note. — For other cases, see Wills. Cent. 
 Dig. § 10! t8: Dec. Dig. <©=>;"( Mj.] 
 
 IWiiis c=.")0(;.i 
 
 It is alw.ivs open to inquiry whether a tes- 
 tator used the word 'heirs.' according to its 
 strict and proper acceptation, or in a more 
 inaccurate sense, to denote 'children.' 'next of 
 kin,' &c. 
 
 lEd. Note.— Cited in Cloud v. Calhoun, 10 
 Rich. Eq. o02 ; Duncan v. llari)er, 4 S. C. 84; 
 Mona?han v. Small, (3 8. C. 1N2 ; McCown v. 
 King. 2:; S. C. 2:!S; l>)tt V. ThonM)s<.n. 'M\ S. 
 C. 44. 15 S. E. 2TS: Shaw v. Robinson. 42 S. 
 C. 840. 20 S. E. 101: Duckett v. Butler, 07 
 S. C. l.'!4, 45 S. 10. i;57; Reeves v. Cook, 71 
 S. C. 271), 51 S. E. Oo: Renibert v. Evaus, S6 
 S. C. 450. «5S S. E. 001; Church v. Moodv. 98 
 S. C. 2:!!>, 82 S. E. 430. 
 
 For other cases, sec Wills, Cent. Dig. § 1000: 
 Dec. Dig. <&=3.-jOG.] 
 
 {Guardian and Ward <^z=>A'^.^ 
 
 Defendant,— though claiming as a purchas- 
 er, without notice, from the guardian <»f plain- 
 tiffs. — ordered to deliver up the slaves in dispute 
 to iilaintilTs and account for the hire. 
 
 [Kd. Note. — Cited in l.ong v. Cason. 4 Rich. 
 Eq. 00; Moore v. Hood. <J Rich. E(i. .'^25. 70 
 Am. Dec. 210: McDullie v. Mclutvre, 11 S. C. 
 500. 501, :?2 Am. Rep. 500. 
 
 For other cases, see (Juardian and Ward, 
 Cent. Dig. § 53; Dec. Dig. <S=34::.| 
 
 liefore Dunkin, Ch., at Kershaw, June, 
 1850. 
 
 The following is the decree of his Honor, 
 the Circuit Chancellor: 
 
 Dunkin, Ch. The will of Jacob Cluunpion, 
 deceased, liears date in 182(5, and a codicil 
 was executed in 18;!2. About this time tlie 
 testator died, and administration, with the 
 will annexed, was assumed under the au- 
 thority of the ordinary, by George \V. Cham- 
 pion. 
 
 The testator left some twelve or thirteen 
 children ; one of the clauses of his will is 
 as follows : "I give and beiiueatli to my 
 daughter. Mary Bailey, one dollar; I also 
 
 @=3For other cases see same topic and KEV-NUMBER in all Key-Numbered Digests and lude.xes 
 
 63
 
 n56 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 give and bequeath to the heirs of lier body, 
 my negro girl Poll, at fonr hundred dollars : 
 I give and bequeath to the said heirs of her 
 hody one-twelfth part of my clear estate, to 
 be divided equally among them." 
 
 On the 21st November, 1834, James Bailey, 
 the husband of INIary Bailey, and the father 
 of the complainants, who are her children, 
 was duly appointed their guardian, and gave 
 bond as such. On the 26th November, 1834, 
 James Bailey, as guardian, gave to the ad- 
 ministrator. Champion, a receipt for "Poll 
 and her child Sarah Jane, bequeathed to the 
 
 *157 
 children of Mary Bailey by ^testator's will." 
 He gave him a receipt as guardian, on the 
 same day, for the hire of Poll up to that 
 date ; and a separate receipt for $213.94, in 
 full of the legacy bequeathed to the children 
 of INIary Bailey, by said will." Mary Bailey 
 on the next day gave a receipt to the admin- 
 istrator for '"one dollar," the sum in full 
 bequeathed to her in her father's will and 
 testament. 
 
 Poll was nearly grown when the testator 
 dietl : soon after she came into the posses- 
 sion of the guardian, she was regularly hired 
 out by him ; she was hired to the defendant 
 for several years prior to 1841. On the 4th 
 of INlarch, 1841, he acknowledges, on a note 
 of James Bailey to him, a receipt of $65 by 
 the hire of Poll ; sometime after this period, 
 James Bailey became insolvent, and left the 
 State, but at what particular time was not 
 proved. I'oll remained in the possession of 
 the defendant, and she had, at the time of fil- 
 ing his answer, six children, whose names 
 are set forth in an exhibit with his answer ; 
 three of the complainants having become of 
 age, applied to the defendant, as well in be- 
 half of themselves, as of their co-complain- 
 ants, for a delivery of the negroes, and an 
 account of the hire — this being declined, the 
 bill was filed on the 14th January, 1846. 
 
 Tlie defendant, by his answer, admits 
 that he is in possession of Poll and her chil- 
 dren whom he claims under an alleged pur- 
 chase from James Bailey, about the year 
 1841. He insists that, by the true construc- 
 tion of Jacob Champion's will, an absolute 
 estate in Poll vested in Mary Bailey, and 
 consequently, that her husband's title was 
 perfect and indefeasible. He admits that he 
 hired Poll from James Bailey for $65 per 
 annum, from 1837 to 1841, but he denies that 
 he hired from him as guardian, or that he 
 knew that he held the negroes as guardian. 
 It may be premised that there was no proof 
 of any sale by James Bailey, or of any pur- 
 chase by the defendant ; but if James Bailey 
 had a good title under Champion's will, that 
 enquiry might not be important in this issue, 
 as he could hold by possession ; and if the 
 complainants are entitled under Champion's 
 will, whether a sale was or was not made by 
 their father, is, in my judgment, unimpor- 
 tant. But if the legal title had been in James 
 
 64 
 
 *158 
 Bailey, and *only an equity in his children, 
 I do not think the circumstances established, 
 would in any manner entitle the defendant 
 to the protection of a purchaser for valuable 
 consideration, without notice. 
 
 But in whom was, and is, the legal title? 
 
 It is quite clear that, in a strict sense, no 
 person can sustain the character of heir in 
 the life time of the ancestor, according to the 
 familiar maxim nemo est hteres viventis — 
 but it is always open to inquiry whether the 
 testator used the word according to its strict 
 and pi'oper acceptation, or in a more inac- 
 curate .sense, to denote '•children," "next of 
 kin," &c. 2 Jarman, 18. The doctrine was 
 very fully discussed in Holeman v. Fort, (3 
 Strob. Eq. 66 L51 Am. Dec. 665]). That was 
 a gift by deed of certain slaves to "the joint 
 heirs of Jas. D. Hoof and Ann Hoof," (both 
 of whom were alive.) The deed was held to 
 pass an imuiediate and absolute estate to the 
 children of J. D. and Ann Hoof, living at 
 the date of the deed ; children subsequently 
 born were excluded. It will be remarked in 
 the will of Champion, that immediately pre- 
 ceding the bequest in question, the testator 
 gives one dollar to his daughter Mary Bailey ; 
 this circumstance is relied on in Darbison 
 V. Beaumont, (1 P. Wms. 2.30.) as indicating 
 the sense in which he uses the words "heirs 
 of her body," in the succeeding clause. In 
 Sims V. Garrol, (1 Dev. and Bat. Eq. R,. 393,) 
 testator had, in a previous clause, made a 
 devise and bequest to Joel Sims and he after- 
 wards bequeathed the residue of his estate to 
 "Joel Sims's lawful heirs." Judge Daniel 
 says, "The testator takes notice that Joel Sims 
 was alive at the making of his will ; there 
 can be no doubt, that the testator did not in- 
 tend that the words 'lawful heirs' should 
 be taken in their technical meaning, but he 
 intended to designate a class of persons, who 
 should take immediately on his (testatoi's) 
 death." I think the words, "to be divided 
 equally among them," also indicate that the 
 words were used in their ordinary and not 
 technical sense. 
 
 Those of the complainants who were alive 
 at the death of the testator in 1832, are en- 
 titled to Poll and her issue; three of the 
 complainants were in existence in 1826, the 
 
 *159 
 date of the will, and *were of age when the 
 bill was filed. The Court infers from the 
 evidence, that Jacob (the fourth child) was 
 also alive in 1826, though he was not of age 
 at the filing of the bill, and as the succeed- 
 ing children, Polly and Nancy, were born at 
 intervals of t\\'o years from the birth of Ja- 
 cob, they w'ere both alive at the death of the 
 testator, in 1832. These six complainants are 
 therefore entitled to the slaves, under the 
 will of their grandfather. 
 
 It is, therefore, ordered and decreed, that 
 the slaves mentioned and named in the ex- 
 hibit of defendant's answer, together with
 
 fALIIolX V. l'rK(;K.SON 
 
 *1G1 
 
 any issue tlicn'of. since born, he tlelivcivil up, 
 and tiiat tin- (U-fendant, Wyntt ratrt'ison, ac- 
 fount fur tlic hire sint-e the 1st <if .lanuarv, 
 
 1N41. 
 
 Tile ilefendant, ratteison. a|ii"'alt'<l. <>n the 
 {irounds: 
 
 1. Jiecanse tlie dt'fendant. Wyatt raltersmi. 
 laircliased the said slaves from James Haiiey. 
 the guardian, without notice that he held 
 tljem as fruaidiau, and llierefore his title to 
 the siiid slaves is i»roti'Oted in Kquity. 
 
 1'. That by the true t-onstruction of Jacob 
 C'lHinipion's will, an ahsohite estate in Toll 
 vested in Mary I'ailey, and cons M|uently the 
 title of her liusliand, James I'.ailey. to tlie 
 said slaves was perfect and indefeasible. 
 
 3. Because the sale of tlie saicl shives was 
 neces.sary for the support ami maintenance 
 of complainants, and the proceeds thereof 
 were applied to that purpose. 
 
 Smart, for th(> motion. 
 
 ("Ihiton & Ilaiiiia. contra. 
 
 I'EU CriMAM. We concur in the decree 
 
 it 
 
 iim.ibic in tlie ii.sp, or not ci;nsuiu- 
 lilf, n-pr.Hhirtivf, or not n-.truihictive.— is Ha- 
 bit' to the ri'iiiaiiKlt'i-niiiii. cunsidrrcd. 
 
 IKil. Xnte.— For utiicr ciix'^. «.'.> Life Estates. 
 Ont. I>iK. § 41: I v. I)iy;. (S=>1>().1 
 
 \<'liitritivs <£r=3l<».l 
 
 [A l)c<nu'st to eort.iin persons, uained in the 
 will, and styb'il. "trustcs of tlio Smith ('Midlina 
 Coiif.nMir.. S1I1....I. C.K.'sbnry. Al.lM'vill.- Dis- 
 trict, S. ('.," f,ir certain s;M'cific uses, well de- 
 hni-d ill the wiU. is valid, tlionudi it do not ap- 
 |»ear that the inrsons iiaiiicd were such •trus- 
 tees,"' as in a court cf ecpiity a trust will never 
 fail for want of a trustee.) 
 
 |Kd. Note.— For other cases, see rharities. 
 Cent. IHk. S 4-': Dec. ]».,'. <S=Jl!t ; Wills. Cent 
 Dig. S 1077.J 
 
 {('hariticK C='47.1 
 
 fE<|uity will not allow a charitaiih- trust to 
 fail for want of a trustee, but will appoint .me.) 
 [lOd. Note.— For other cases, see Charities, 
 Cent. Di;,'. § .Sr» ; Dec." Dig. C=»4T.] 
 
 Before Caldwell. Cli.. at Abbeville. June. 
 1.S4S. 
 
 The decree of bis Honor, the Cbaiictdloi-, is 
 as follows: 
 
 Caldwell, ch. This c-ase comes up on an 
 
 » -^.. V,, .V..I..J. ,, ,- tipocm III (lie tiecMee ■>_■<>. <i .<» n. - u. i m.-s ca>e coiiic^s up on an 
 of the Chancellor: and it is ordered that the ' :"l»P<'iil fioin the decree of Mr. Lesley, the 
 
 of 
 
 same be allirmed, and the apjx'al dismissed. 
 
 JOHNSTON, DUNKIN and DAlKiAX, eon- 
 currinj:. 
 Appeal dismissed. 
 
 3 Rich. Eq. *I60 
 •E. R. CALIIOIN and H. .V. C. AVALKER 
 Executors of (Jeor^e Ilollowav. Deceased 
 THOMAS FIRCESON. Acin.inistrator 
 Rebecca Ilolloway, Deceased. 
 
 (Columbia. Nov. anj Dec. Term, IS.'IO.) 
 [Charities C=>-1.1 
 
 Reciuest to certain persons, naniintr them, 
 trustees of the South Carolin.i Conference 
 School, Cokeslniry. Abbc-vilje distric-t, S. C 
 and their successors in oHice, as a fund' in trust 
 for the followinjr specific use or uses," &v laid 
 that the betiuest was valid. 
 
 [Ed. Note. — For other c-ases, see Charities 
 Cent. Di?. SS 44-;jO; Dec. Dip. «®==-'l.] 
 [Life Estatrs C=>n.l 
 
 Testator l)e(|ueathed ti.e whole of his estate 
 consistiui; of land, slaves, horses, c-attle, ho-'s 
 provisions, farniinj; utensils, furniture, &c., t() 
 his wife tor life, with remainder over: he died 
 l-r '^'"^^- ^''^"'*'- '''"'^ l''^ widow, the tenant for 
 life, died in May. 1.S47: the y.Mieral condition 
 of the estate was improved, while in the hands 
 ot the tenant for life, nud it was, when deliver- 
 ed over to the reniaincler-nien, in as good plight 
 as when she received it, tln.u-h there was an 
 accidental dehciency of piovishms; /Irhl that 
 the representative of the tenant for life was not 
 lialde to acccmnt to the remainder-inen for that 
 delicieiic.v. 
 
 |i;d. Note.-Cited in (Jlover v. Hearst 10 
 
 luch. L.|. -.[:',-,. :::;(;: j'.n.oks v. I'.rooks r> s 
 C. 44:!, 444. 44(;. 447. 4r,(». 4.-)l. 4.-.4, 4.j5: Orr 
 V. Orr. :\4 S. C. L'SO, III s. E. 4<)7. 
 
 For other cases, see Life Estates. Cent. Dig. 
 § dO; Dec-. Dij:. <S=»11.] 
 
 [Life Kstntes <S=li(».| 
 
 The i)rinciples upon which a tenant for life 
 ot persoiialty.-whether it he a r.peci(ic chattel 
 or an entire estate Kiven as a unity, and wheth- 
 
 ordinary of Abbeville district, on the ad- 
 justment of the estates of (Jeorse Holloway. 
 and cd' his wife. Rebecca Hcdloway, between 
 their lej,'al representatives. 
 
 Oeoiw Holloway. by his last will and tes- 
 tament, made On the .*kl of August, 1840. de- 
 vised and be(iueathed as follows, to wit: 
 
 •Item 2d. I will and betiueath to my dear- 
 ly beloved wife. Rebecc-a. after the payment 
 of my just debts, all my estatc\ both real and 
 personal, duriiii,' her natural life," &c. 
 
 "Item 4th. It is my will and desire, that 
 at the death of my dearly Ixdoved wife, Re- 
 'becca, all my estate, both real and personal, 
 not otherwise disi»osed of by the provisions 
 of my will herein before made, be sold in 
 the following manner, to-wit: I particularly 
 enjoin it on my executors to sell in families, 
 and in no other, the nej,'roes of my estate, but 
 the balance of the property as they may 
 think best." 
 
 *161 
 
 *"ItiMii .-.tb. I will and boqucatb. .-it the 
 death of my dearly beloved wife, Rebecca, 
 all the residue and remainder of my estate, 
 iKitli real and per.sonal, unto the Rev. William 
 M. Wi-htman. (and others, namiiifr thefti.) 
 trustees of the South Carolina Conference 
 School, Cokesbury, Abbeville district, S. C, 
 and their successors in otHce, as a fund in 
 trust for the followim; spccilic u.se or uses," 
 &c. (a) 
 
 The ordinary held the beciuest and devise 
 «oc)d in remainder: but that the estate of 
 Rebecca Holloway, the tenant for life, was 
 not accountable to the remainder-man for 
 ^750.00. the value of the provis;iou crop made 
 during the year before the death of the tes- 
 
 (Ml Ihe Re|)orter havint; been unable to pro- 
 cure a copy of the will, cannot state what were 
 the uses expressed in it. 
 
 ©=3Kur other cases see same io..ic auU KEY-NLMBEK iu all Key-Numbeied Digests aud Indexes 
 o Ku li.Ecj. — 5 
 
 Uo
 
 461 
 
 RICHARDSON'S EQUITY REPORTS 
 
 tator, who died the last day of August, 1846, 
 and that her life estate was not accountable 
 for .?527.00, the hire of the slaves and the 
 rent of the land from the death of Rebecca 
 Holloway, the tenant for life, who died in 
 May, 1847, to the first of January following, 
 when the property was taken into possession 
 by the surviving executors. 
 
 The administrator of Rebecca Holloway 
 appealed from the decree of the ordinary, on 
 the grounds: 
 
 1st. "Because the bequest in remainder to 
 "William M. Wightman and others, as a fund, 
 in trust, is illegal and void." I can see noth- 
 ing in the terms of the will that can render 
 it void, and its provisions are certainly much 
 more definite in every respect than Burnet's 
 will, (Attorney General v. Jolly, 1 Rich. Eq., 
 99-109 [42 Am. Dec. 349].) by which he devis- 
 ed and bequeathed the whole of his estate, 
 real and personal, to his wife, during the 
 term of her natural life, and after her death, 
 "to the Methodist Church, of which she may 
 be a member at the time of her death, to be 
 appropriated to the uses and purposes which 
 the Conference may deem most advantageous 
 for said Church; more especially for the 
 support of Sunday Schools, for the purchase 
 of Bibles, religious tracts, and the distribu- 
 tion of the same among the destitute, and for 
 the support of Missionaries." This was held 
 a valid bequest to the Methodist Church, of 
 
 *162 
 which the tenant for *life was a member 
 when she died, and that this Court can ex- 
 ecute the trusts. 
 
 2d. "Because the said bequest in remain- 
 der is in trust to a supposed corporation 
 which never had existence by such name. 
 The School at Cokesbury, Abbeville district, 
 was incorporated, but the gift was not direct- 
 ly to the School as a corporation, but to the 
 Rev. William M. Wightman, Henry Bass, N. 
 Tally, H. Spain, James Dannelly, H. A. C. 
 Walker, James H. Wheeler, Mat. J. Williams, 
 C. S. Beard, and T. R. Gary, trustees of the 
 South Carolina Conference School, Abbe- 
 ville district, S. C, and their successors in 
 office, as a fund in trust for the following 
 specific use or uses," &c. Whether these gen- 
 tlemen were trustees or not of the School, 
 cannot change the trusts of the will. If 
 they were to decline to execute, or if no 
 successoi"s were appointed, it would be com- 
 petent for this Court to appoint trustees to 
 carry out the will. A trust never fails for 
 want of a trustee, while equity exists. But 
 there was no proof that they were not trus- 
 tees, and the fact will be presumed, unless 
 disproved. 
 
 3d. "Trust results to the next of kin of 
 testator, as the whole bequest is void ; and 
 that the ordinary should have decreed to 
 Thomas Fergeson, administrator, one-half of 
 the estate of George Holloway, as representa- 
 tive of said Rebecca." 
 
 The objects of the trust are well defined 
 
 66 
 
 by the terms used in the will, and the mode 
 of administering the charity is prescribed 
 with sufficient clearness and certainty. Nei- 
 ther our common or statute law forbids such 
 charitable donations. These grounds are, 
 therefore, insufficient to invalidate the will. 
 
 The executors of George Holloway appeal- 
 ed from the decree of the ordinary, on the 
 following grounds: 
 
 1st. "That the ordinary erred in not liold- 
 ing the estate of Rebecca Holloway. the ten- 
 ant for life, accountable to the remainder- 
 man for $756.00, the value of the provision 
 crop made during the year before .the death 
 of the testator, who died the last day of Au- 
 gust, 1846," The Act of 1789, (5 Stat.) pro- 
 vides that "the slaves which were employed 
 in making a crop, shall be continued on the 
 lands which were in the occupancy of the de- 
 
 *163 
 cea.sed, *until the crop is finished, and then 
 be delivered to those who have the right to 
 them ; and such crop shall be assets in the 
 executors or administrators hands, subject to 
 debts, legacies and distribution ; the taxes, 
 ovei"seer's wages, expenses of physic, food 
 and clothing, being first paid," &c. His wife 
 had the right to the use of his whole estate 
 during her life, after payment of the debts ; 
 and the testator certainly did not intend that 
 she should sell off the provisions raised on 
 the phmtation, and convert them into money 
 to increase his estate, and that she should 
 incur the expenses of supporting the proper- 
 ty. It would seem that the testator intended 
 that the property should support her and it- 
 self, so that she should not impair it. If she 
 had made merchandise of the provisions rais- 
 ed in 1846, instead of using them, as con- 
 templated by the testator, then it would 
 seem there might be some claim on her es- 
 tate as assets of the testator, in her hands 
 as executrix. The case of Robertson v. Col- 
 lier, (1st Hill Ch. 370.) distinctly recognizes 
 the doctrine laid down by Justice Nott, in 
 Patterson v. Devlin, (1 M'M. Eq. 459.) He 
 says, "lands are sometimes given to one for 
 life, together with slaves, stock of horses, 
 cattle, plantation tools, and provisions, with 
 a limitation over. In such a case, the perish- 
 able articles cannot be considered as belong- 
 ing absolutely to the tenant for life, neithe- 
 can they be sold, because they are necessary 
 for the preservation of the estate. The ten- 
 ant for life must therefore be considered as 
 a trustee for the remainder-man, and must 
 preserve the estate, with all its appurt(nianc- 
 es, in the situation in which he received it; 
 he may therefore be required to give an in- 
 ventory of the property, or security for its 
 preservation, according to circumstances. 
 The tenant for life will be entitled to the in- 
 crease of the stock and the rents and prof- 
 its of the land; but he must keep up tlie 
 .stock of cattle, horses, provisions, and imple- 
 ments of husbandry, in the condition in 
 which he received them; for although some
 
 CALIIOUX V. FURGESON 
 
 »166 
 
 of the articles may be consumed In their 
 use, and others ar»' wearing' «»ut by attri- 
 tion of time — yet, wlu-n taken alt...:,'fth»'r, 
 beinj,' reproductive, the estate must lie made 
 to keep up its own repairs." 
 
 ♦164 
 
 ♦The words of the will IxMn;; In the pres- 
 ent ease clearly within this i)rineiple. which 
 I think nnist govern, the decree of the ordi- 
 nary must be modified accoidini:ly. 
 
 I'd. '•That the <»rdinary erred in not hold- 
 ing said life estate accountahTe to the re- 
 mainder-man for the sum of ."?."i:J7.()(). the hire 
 of the slav«'s and the rent of the land, from 
 the death of the tenant for 11 f.'. in May, 1.S47. 
 to the tir.st of January ensuing', when they 
 were received into the i.ossession of the e.\- 
 ecutors." 
 
 This frr.iund in inci>mpatii)le with the prin- 
 ciple heretofore laid down, and is in conflict 
 with the decision of the Court of Appeals in 
 l.SL'T. in Leverett et al. v. Leverett et al., (2 
 McCord's Ch. S4.) and the more recent case 
 of Herhemont. adm r. v. I'ercival. in the 
 Court of Law iu IMO. (1 Mc.Mul. 51).) The.se 
 two cases have given. I think, a correct con- 
 struction to the Act of ITS!), and any other 
 view would be not only inconsistent with the 
 intention of the statute, but would be unset- 
 tling the uniform practice that has been 
 adopted in adjusting estates that come with- 
 in its provisions. 
 
 It is therefore ordered and decreed, that 
 the ca>;e be remitted to the ordinary, and that 
 he hear testimony, if necessary, and that the 
 account be modified agreeably to the view ex- 
 pressed in this opinion. 
 
 Thomas I-'ergeson, the ndiiilnistrator of 
 Rebecca Holloway, appealed, and moved for 
 a reversal of so much of the decree as de- 
 clared, 
 
 1st. Tliat Thomas Ferge.son. as adndnistra- 
 tor of Rebecca Holloway, decea.sed. was lia- 
 ble to account strictly for the value of all 
 per.sonalty of the estate of Cieorge W. Hol- 
 loway, deceased, which came into her posses- 
 sion as tenant for life. 
 
 2d. That the bequest in remainder to Wil- 
 liam M. Wightman and others, was certain 
 and valid. 
 
 Thomson .^i Fair, for the appellant. 
 Wilson, contra. 
 
 JOHNSTON, Ch. delivered the (ipiiii,.n of 
 the Court. 
 
 ♦165 
 
 ♦The second groun<l (.f appeal was not 
 pressed in the argument; and is clearly un- 
 tenable, according to our decisions. 
 
 The only point made under the first 
 ground, was that the decree should not have 
 declared Mrs. Holloway. the life-tenant, lia- 
 ble to re-produce, at the expir.-ition of her 
 life-etjtate, the same amount of corn which 
 
 she received with the estate, or account for 
 the value of the deficiency.! />i 
 
 It is Important in the first place to deter- 
 ndne whether the testator intended to give 
 her the property devistnl to her for life, with 
 a view to her enjoyment of it in kind, or 
 whether the gift was made with reference to 
 the value and not the specific j-njovment of 
 it. 
 
 Where the iu^nefit contemplated by the 
 donor, is the mere value of the property: the 
 long settled rule Is so to cfispose of the'iirop- 
 erty. that the interest of both life-tenant and 
 remainderman shall be protected, and neither 
 be in-omoted at the expense of the other. 
 This Is accomplished by the .sale of the pro|i- 
 erty, giving the interest of the proceeds to 
 the life-tenant during life, and Jn-ning over 
 the capital to the remainder-man upon the 
 life-tenant's death. 
 
 If the personal enjoyment of the property, 
 itself, was intended: a sale of it cannot be 
 ordered, l>ecause that would <lefeat this in- 
 tention: but, in such cases, the tenant for 
 life is to hold and enjoy the property given, 
 under a liability, however, to render such an 
 account for whatever part of it may not be 
 forthcoming to the remainder-man. as the 
 rules of law impose, respect being had to the 
 nature and character of the property which 
 has been lost. 
 
 Where the l>equest is sjieclfic in term.s. 
 there can of course be no doubt as to the 
 intention. There may be doubt where the 
 btHjuest is residuary in form. Where that 
 is the ca.se, the general rule is to regard it 
 as evidence that the intention was not to 
 
 *166 
 ♦confer the personal enjoyment of the prop- 
 erty in kind, but the mere benefit arising 
 from its value. I'.ut this rule is ancillary, 
 only; and Is employed solely for the i)urpose 
 I of discovering the true intention of the tes- 
 tator: and if. by the context of the will, or 
 j in any way from its face, the mind is persuad- 
 ed (notwithstanding the resuluary form of 
 the iK'(piest) that a i)ersonal enjoyment was 
 i intended, such will be the construction, and 
 effect will be given to if with all its inci- 
 dents. 
 
 The will of (Jeorge Holloway. under which 
 the questions, made in this case, arise, maiu- 
 fests an intention that his widow shoidd en- 
 joy the property. Itself, given to her for life; 
 and a directly diflerent intention as respects 
 the remainder-man. The direction that it 
 be sold at her death, e.xcludes the idea that 
 it was to be converted before, or that it was 
 to be taken from her: and the direction that 
 
 I (h) Sec. f.ir the doetriiie applicahle in such 
 I ciis.s. I orttr v. Toiiriiiiy. C, \es. ;!l(»t; How.- v 
 
 {*"'t "itli. (7 Vi's. i;;7): IVarus v. Yoiui- ('.) 
 
 i N es. ...lie Randall v. Russell, (li Mrriv. l!"M)r 
 
 (.dlespie V. Miller. (,-, ,J„!,ns. Ch. 21); Westeott 
 [ y. Cady. (Id. ;rUi: I'atter.son v. Devlin. (.M.-.M 
 ' Ivi. 4olt) ; Robertsou v. Collier, (1 Hill Eq. 
 
 I OlOj. 
 
 G7
 
 nee 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 the proceeds of the property, and not the 
 property itself, be given to the remainder- 
 men, is inconsistent with the notion tliat 
 they were designed to liave any interest in it 
 beyond the money to arise from the sale. 
 
 To these considerations may be added the 
 relations which these two parties bore to the 
 testator, and the consequent interest he may 
 be supposed to have felt for them respect- 
 ively. 
 
 There are other stray expressions through- 
 out the will, not taken notice of in the de- 
 cree; which, separately, may not have much 
 influence, but which, taken together and add- 
 ed to the considerations already commented 
 on, serve to strengthen the conclusion to 
 which I have come. 
 
 This being the construction, then; — that 
 the property was specitically given to Mrs. 
 Holloway, we are prepared to enquire wheth- 
 er her estate is bound to account for the 
 corn which she received. 
 
 This was but a part of the body of the 
 property given her for life. That property 
 consisted of land, slaves, horses, cattle, hogs, 
 farming utensils, household furniture, &c. 
 
 The personal property falls under two gen- 
 eral lieads: (1) such as was consumable in 
 the use of it, and (2) such as was not so con- 
 sumable. 
 
 *167 
 
 *For instance, under the former head 
 among other things must be reckoned, pro- 
 visions, — including the corn which is the 
 subject of litigation in this case. Under the 
 second head might fall, among others, plate, 
 furniture, &c. 
 
 But each of these classes may be further 
 divided into two descriptions, according to 
 their qualities, and distinguished as re-pro- 
 ductive or not re-productive. 
 
 Thus; under the first head, of articles con- 
 sumable in the use, may be ranked not only, 
 those of corn, wine, &c. — which are wholly 
 consumable, and entirely destitute of the 
 quality of reproduction ; but, also, flocks, 
 which, besides sustaining themselves by nat- 
 ural increase, yield a surplus for consump- 
 tion. 
 
 Again; under the second head, of property 
 not consumable in the use, we have not only 
 plate, furniture, &c. ; which are perfectly 
 incapable of increase; but, also, slaves, which 
 while strictly inconsumable, are eminently 
 reproductive by procreation. 
 
 Now, the liability of a life-tenant for these 
 different kinds of property, separately con- 
 sidered, is regulated by law. according to 
 the specific qualities of tbe property itself. 
 
 For property entirely consumable in the 
 use, and entirely destitute of the power of 
 reproduction, the life-tenant is not account- 
 able at all. It is incapable of being limited 
 in remainder, where it is given to be used in 
 kind. The use of it necessarily consumes it, 
 and there is notliing left upon which the 
 limitation can attach. This is the doctrine 
 68 
 
 of all the cases: and necessarily so, because, 
 upon principle, no other doctrine can be pred- 
 icated of such property. 
 
 For property not consumable, but at the 
 same time incapable of increase or reproduc- 
 tion, such as plate, &c. the liability of the 
 life-tenant is restricted to the mere surrender 
 of it to the remainder-man, who must take 
 it with such deterioration as may have arisen 
 from the reasonable use of it: — for any 
 abuse, or for the wanton destruction of the 
 property, the life-tenant is responsible. 
 
 For flocks and herds, consumable but 
 reproductive, the rule is still different. The 
 
 *168 
 life-tenant is entitled to all the increase *be- 
 yond what is necessary to keep up the stock; 
 and, therefore, is bound to the exercise of 
 extraordinary diligence for keeping it up and 
 delivering it over, undiminished, to the re- 
 mainder-man. I will not say that he is bound, 
 at all hazards, for the original stock ; for 
 the relation he bears to the remainder-mau 
 is that of trustee, — a relation of confidence — • 
 and though he is prima facie bound for the 
 property, and the burden must be upon him 
 to show diligence and integrity, in the per- 
 formance of his duties, — yet it is not clear, 
 upon principle, that he is liable if he does 
 shew fidelity to his trust, and that the flock 
 has perished, not by his fault, but by the 
 act of God,- — as by pestilence, earthquake, 
 or other unavoidable providence. 
 
 A still different rule exists as to slaves: 
 reproductive, but not consumal)le. The in- 
 crease of these do not belong to the life-ten- 
 ant, so as to enable him to appropriate them 
 beyond the term of his life. They follow 
 the status of the original stock slaves, and 
 are his as long as the stock slaves are his: 
 —during his life: — at his death both the 
 stock slaves and the increase go over to the 
 remainder-man, as they stand: and the life- 
 tenant is only accountable for such as re- 
 main; unless he has diminished their num- 
 ber, or the value, by his misconduct. For 
 loss occasioned by the act of God, he is not 
 responsible. 
 
 Upon these principles the accountability of 
 a life-tenant is governed, where these arti- 
 cles of property are given to him, as separate 
 things. The property is taken up in detail, 
 and the degree of his accountability is suited 
 to the character of each article. 
 
 It must be observed, liowever, that the 
 ground of accountability is the trust charac- 
 ter of the life-tenant ; and it is applied as the 
 fundamental principle to each detached arti- 
 cle of property, though it leads to different 
 results, according to the qualities of the 
 property itself. 
 
 If we were to take up the things comprised 
 in the bequest to Mrs. Holloway, and con- 
 sider them separately, it follows from what 
 I have said that she must be excused from 
 liability for the corn; which was consumable 
 in the use.
 
 r.\Lii(»rx V. i-L'iu;i:.so.v 
 
 *171 
 
 ♦169 
 •But there is anotlicr uiethod of (.cuisider- 
 Ing the sulijecf: in which tin- entire niiiss of 
 property ^'iveii to her may |)e regarded as 
 one fiift ; and in the investigation of tlie 
 subject in this way. also, tiie same principle 
 of trusteeshijt applies. 
 
 This method ajipears to liave been first 
 broaclied by Mr. Justice Nntt in Patterson v. 
 Devlin. Mc.Mul. i:.|. 4;".!). and subsequently 
 apiilied by ("hancellor Harper, in Robert.son 
 V. Collier. 1 Hill Jv). :]-{), 
 
 Says Judj,'e Nott:— "There is another view 
 of the subject wliich deserves consideration 
 and which is somewhat peculiar to the sit- 
 uation of this country. I^uids are .sometimes 
 given to one for life, together with the slaves, 
 stock of horses, cattle, plantation tools, and 
 provisions; with a limitation over. In such 
 a ca.se. the perisliable articles cannot be 
 considered as belonging, absolutely, to the 
 tenant for life ;— neither can they be sold, 
 because they are necessary for tiie pre.serva- 
 tion of the estate. The temint for life nuist,' 
 therefore, be considered as a trustee for tlie! 
 remainder-man; and must preserve the es- 
 tate with all its appurtenances, in the situa-i 
 tion in wliich he received it." -The tenant! 
 for life will be entitled to the increa.se of the 
 stock and the rents and profits of the land:— 
 but he must keep up' the stock of cattle, 
 hor.ses. provisions and implements of hus- 
 bandry, in the condition in which he received 
 them:— for although some of the articles 
 may be consumable in their u.se, and others 
 are wearing out. yet, when taken all togeth- 
 er, being reproductive, the estate must be 
 made to keep up its own repairs." 
 
 Chancellor Hari)er, after (luoting these ob- 
 servations, adds:— "The-se views are so full 
 and explicit, that little need be added to 
 them. The principle is the same, though ex- 
 tended in its appli<-ation. by which a tenant 
 for life, in England, is forbidden to waste 
 the estate; and is required to make ordinary 
 repairs,— or any other tenant is re.pii red to 
 keep up the original stock. The tenant for 
 life Is entitled to the u.se of the estate; but 
 it is sudi use as a prudent proprietor would 
 make of his estate. The pr«.lit of an e.state 
 Is the nett income, after defraying all nec- 
 
 ♦170 
 es^.sary expenses. Thus the relative rights 
 of tile tenant for life and remainder-man, 
 will be the same whether the estate be sold 
 and the proceeds vested, or retained in kind. 
 If at the termination of the life e.state, all 
 the articles of the sort mentioned are not in 
 as good condition as when he received it 
 the tenant nuist make good the deficiency." 
 I fully as.sent to .•^o much of these opinions 
 as place the responsibility of the tenant for 
 life upon the footing of a (juasi tru.stee. who.se 
 duty it is to preserve the estate for the re-' 
 mainder-inan; and makes the test of his' 
 fidelity tfie care and attention which a pru-j 
 dent owner would exercise over his own 
 
 property. Tiiis is tlie true ground : and it 
 applies not <»nly to a tenant for life of an 
 estate, as an entire subje<t, l»ut to one to 
 whom detached articles of itrojierty are given 
 l»y the .same tenure. Kach is responsible for 
 prudent and judicious management; an<l 
 neither of them is at lil)erty to deferi<»rate 
 the proi.erty !»y managing it for his own 
 benefit, at the expense of the remain<li'r-man. 
 But it .seems to me, that the distinction 
 which is justly taken in tiie cases of Patter- 
 son v. Devlin and Itobertson v. dllier be- 
 tween an entire estate, given, as an unity, 
 I for life and limited in remainder, and tlie 
 ' gift and limitation of specific articles of 
 I projierty. in the same way,— is not carried 
 out by file decisions made in these cases :— 
 by which the account is directed to be taken, 
 not of the whole e.state, as one subject, but 
 «if its component parts, in detail. Nor does 
 it api)ear to me entirely consistent with the 
 princiide laid down; i. e.— that the fidelity 
 and resi»onsibility of the trustee are to be test- 
 ed by his prudent management of the whole es- 
 tate;— to make him responsible for particu- 
 lar part.s. which may happen to be deficient 
 notwithstanding su<h management: and. 
 indeed, where the particular deficiency ina.v 
 have ari.sen from tiie i»rudent management 
 of the whole estate. Nor am I .satisfied that 
 either reason or principle refiuiiv that the 
 trustee, though he may have, ujxni the whole, 
 improved the estate, is responsible because 
 he does not deliver it over, in tlie exact 
 plight or condition, in which he received it. 
 ♦171 
 *There are I think subse(pient decisions 
 in which the doctrines of these cases have 
 been modified: but they have not been re- 
 ferred to in argument, and I cannot find 
 them. 
 
 I tiiink the inquiry should lie made into 
 the particulars of the estate and their value, 
 at the time the remainder takes eflect, for 
 the "puri)o.se of discovt-ring wbother that 
 which is to go over is substantially the same 
 estate which was received by tiie life-tenant, 
 and of the proper value, and whether, upon 
 the whole, it is in as good a plight (thouirh 
 not in the exact i.light) as when the life-fen- 
 ant took po.s.se.ssion. If these conditions be 
 fiillilled: where is the ground for .barging 
 the life-tenant? 
 
 One species of stock may have been di- 
 minished, while another has been increased: 
 and so far from its being proof of ill hus- 
 bandry, it may be evidence of real judgment 
 to have made the alteration. Siiall the re- 
 mainder-man take the l)enefit of the imjirove- 
 ment, and require an account of the minor 
 loss which it occasioned? 
 
 Snppo.se, again, the implements of hus- 
 bandry on tlie plantation, when the life-ten- 
 ant took pos.session, were of a character 
 utterly unsuited to the projjcr culture of 
 the land: suppo.><e there was a superabun- 
 dance of plow-horses; suppose the wagons 
 
 6y
 
 ^171 
 
 .'! RICHARDSON'S EQUITY REPORTS 
 
 and carts were cleficient, and manure could 
 not be collected or spread in reiiuisite quan- 
 tities ; would it be bad husbandry. — or would 
 it be injurious to the estate, — to convert the 
 ■iiurplus horses into proper instruments for 
 cultivating and keeping up the land, and at 
 the same time diminisli the expenses of the 
 plantation? Will no other rule secure the 
 lidelity of the trustee, than to confine him 
 ■,to pre-existing methods of culture, and ex- 
 clude him from the advantage of all agricul- 
 tural improvement, by requiring him to re- 
 l)roduce the plantation, with all its appurte- 
 nances, (though merely ancillary) iu the pre- 
 tcise shape in wiiich he received it? 
 
 In a series of years, a severe drought may 
 
 'Occur, and reduce the quantity of provisions 
 
 produced. If the tenant should happen to 
 
 die when such a crop has been produced: 
 
 *172 
 
 is he to be the *exclusive sufferer, though 
 at the same time the whole estate goes over 
 in an improved condition? 
 
 If the tenant is guiltv of misconduct : if 
 lie has mis-managed for his own exclusive 
 profit, to the injury of tlie estate, or the 
 remainder-man: if he has sold any of the 
 negroes; if he has planted nothing but cot- 
 ton and sold that for his own benefit, neither 
 raising nor purchasing provisions; such 
 conduct is not faithful; it is not the manage- 
 ment which a prudent owner of the property 
 would have adopted, — and he must answer 
 for it. 
 
 But if upon the whole, he has been faithful 
 ;and diligent and judicious, and has not dete- 
 i-iorated the substantial parts of the estate, 
 •or the estate as a whole ; he should not be 
 anade to suffer. 
 
 It is admitted in this case, that tiie general 
 condition of the estate was improved while 
 in Mrs. Holloway's hands, and that it was, 
 when delivered over, in as good plight as 
 "when she received it, though there was an 
 accidental deficiency of corn ; and I do not 
 think her representative was accountable for 
 that deficiency. 
 
 It is ordered that so much of the decree 
 as held him accountable for it be reversed. 
 In all other respects it is aflirmed. 
 
 DUNKIN and DARGAN, CC. concurred. 
 Decree modified. 
 
 3 Rich. Eq. 172 
 
 W. D. LEWIS v. D. B. PRICE and Wife, and 
 Others. 
 
 (Columbia. Nov. and Dec. Term, 1850.) 
 
 IHusbarid and Wife <®==>151.] 
 
 Constructiou given to a marriage settle- 
 ment; husband held bouud, by tlie terms there- 
 of, to support out of the settled property, the 
 
 wife's chihlren by a previous marriage, in ex- 
 oneration of their own property. 
 
 [Ed. Note. — Cited in Shumate v. Harvin, 35 
 S. C. 529. 15 S. E. 270. 
 
 For other cases, see Husliand and AVife, Cent. 
 Dig. § 586; Dec. Dig. <®=>151.] 
 
 [Hvshaiid and Wife (g=>5n.] 
 
 An administration granted to husband and 
 wife jointly, is the administration of the hus- 
 band alone; the surety on the bond gives credit 
 to him exclusively. 
 
 [Ed. Note. — For other cases, see Husband and 
 Wife, Cent. Dig. § 277; Dec. Dig. <S==>59.] 
 
 [Husband and Wife <©p>ll.] 
 
 The husband's marital rights will not attach 
 upon the wife's distributive share, before it is 
 severed from the bulk of the estate. 
 
 [Ed. Note. — For other cases, see Husband and 
 Wife, Cent. Dig. «? 49; Dec. Dig. <£=:3ll.] 
 
 *173 
 
 [Husband and Wife <S=:335.] 
 
 *In ordering a settlement of the wife's 
 equity, the Court will conform to a previous 
 settlement, agreed on by the parties, though it 
 may have proved ineffectual. 
 
 [Ed. Note. — For other cases, see Husband and 
 Wife, Cent. Dig. § 211; Dec. Dig. <®=:^:35.] 
 
 [Exeeutors and Administrators <2xx3l77.] 
 
 The principles upon which the profits of a 
 planting establishment are to be accounted for 
 by an administrator, stated. 
 
 [Ed. Note. — Cited in Johnson v. Pelot, 24 S. 
 C. 258. 58 Am. Rep. 258 ; Bramlett v. Mathis. 
 71 S. C. 127, 50 S. E. 644. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 2062; Dec. Dig. «®=3477.] 
 
 [Executors and Administrators <©=>477.] 
 
 The accounts of an administrator directed, 
 under very peculiar circumstances, to be taken 
 with great liberality towards him. 
 
 [VA. Note. — For other cases, see Executors 
 and Administrators, Cent. Dig. § 2002 ; Dec. 
 Dig. <S=>477.] 
 
 [Executors and Administrators <©==>132.] 
 
 An administrator, being also, as distributee, 
 a tenant in common of the land, allowed credit, 
 not for the cost of improvements put by him 
 on the laud, but for the value they imparted 
 to the premises. 
 
 [Ed. Note. — Cited in Johnson v. Pelot, 24 S. 
 C. 263, 58 Am. Rep. 253 ; Shumate v. Harbin, 
 35 S. C. 528, 15 S. E. 270; Neal v. Bleckley, 
 51 S. C. 533, 29 S. E. 249. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 437; Dec. Dig. <g==3l32.] 
 
 [Executors and Administrators <^=>513.] 
 
 Where an administrator's return to the 
 ordinary is seventeen years old, items vouched 
 before the ordinary and passed by him as charg- 
 es against the estate, may be regarded as prov- 
 ed, prima facie ; of items not vouched, some 
 evidence should be given, but that degree of ev- 
 idence should be sufficient, which may be ex- 
 pected after such a lapse of time.(a) 
 
 [Ed. Note. — Cited in Buerhaus v. DeSaus- 
 sure, 41 S. C. 493, 19 S. E. 926, 20 S. E. 64. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. !J 2282; Dec. Dig. <g=:3513.] 
 
 (a) The 28th section of the Act of 1789, (5 
 Stat. 112.) provides, "that executors, or admin- 
 istrators shall, aniuiaily, ' "render to the" "ordi- 
 nary" "a just and true account, upon oath, of 
 the receipts and expenditures of such estate, the 
 preceding year, which, when examined and 
 approved, shall be deposited with the inventory 
 and appraisement," "in the" "ordinary's ortice," 
 "there to be kept, for the inspection of such per- 
 
 70 
 
 <©;:ur>For other cases see same topic and KE if-flUiVIBER iu all Key-Numbered Digests and Indexes
 
 LEWIS V. PRICE 
 
 n"j 
 
 r>efor». Duiikiii. Ch., at Itarlinnton, IVltru- 
 ary. isM. 
 
 This cast' tame In* fore tht* Court on extvp- 
 tions to the foUowiiit;: 
 
 Coiiimissioiicr's Rj-port. 
 
 The CoinuiissioiKT. t<t wimm it was referred 
 to take testimony. iiiid state tlie atrounts of 
 
 *174 
 tile several administrators of Jesse *lA'Wis, 
 deeeased, Ih{:s leave respectfully to report: 
 Jesse Lewis died on .'JUth of October, 1n;{2. 
 On the 7th Novenilier, ls;il'. athninist ration 
 of his estate was j^ranteil to his widow, 
 Martha Lewis, and one Wni. T. Mason ; Init 
 it does not appear, and indeed is not pre- 
 tended, that the latter ever partieipated in 
 the manaj,'ement of the estate, the adminis- 
 tration of which was assumed and conducted 
 solely by Mrs. Lewis. On the 9th of .Janu- 
 ary, 1834, Mrs. Lewis inti'ruiarried with the 
 defendant. Daniel li. Price, who, on the l;jth 
 February, lSo4. in conjunction with his wife, 
 entered into a new bond with John N. Wil- 
 liams and John D. I'rice. as sureties, and re- 
 ceived formal letters of administration of 
 Je.sse Lewis's estate. There is no evidence of 
 a formal revocation of the tirst ^'rant : and it 
 is as well to mention here, that on the tirst 
 reference held by me, on proof beinj;; made 
 of the grant of administration to Mrs. Lewis 
 and to Mason, the solicitor for the defend- 
 ants, Mr. Ilaynsworth, objected to proceed- 
 ing further, on the ground that .Mason should 
 be made a party to the bill. He had been 
 gone for many years beyond the jurisdiction 
 of the Court, and, as 1 now recollect the tes- 
 timony, into parts unknown, and I had no 
 
 .sous as may be iiitcrcsti'd in tlio said estate," 
 &c. In Wri-ht v. Wiiulit. (2 M.-C. Im]. llMi.) 
 Jud^e Xott says: "It is incnnilx-nt nn liim' 
 (the personal representativt) "'to sliew, liy satis- 
 factory evidence and voucIuts. in w li.-it manner, 
 it." (the fund in Ids liand.) "lias l»i'cn admin- 
 istered. Tli(»je vouchers lie <iiiL;lit to keep as liis 
 security; and tiie ordinary ouiilit not to allow 
 his accounts, when the vouclicrs are not pro- 
 duced, nor their alisence accounted for. And it 
 ought to a|)i)car on tlie face of the scttlcincnt. 
 what was the nature of tin- f\ idtiicc on w liicli 
 the return was accepted and allowed. Anil al- 
 though tiie evidence with the t)rdinary is uot 
 conclusive, per se, in favor of an o.\(K'Utor. it 
 ought to ho received for as much as it is worth: 
 — and its value must (k'lieiid upon a variety of 
 circumstances:— the regulaiity of the accounts, 
 the death of witnesses, loss of vouchers, and 
 the lapse of time, must all he taken into con- 
 sideration. In this ciise sixtc^en years have 
 elapsed since the account was settle<l and al- 
 loweil by the ordinary. It is not to lie i)resum- 
 ed that he suffered it to jiass. witli<iut satis- 
 factory evidence that it was correct. I tliink, 
 therefore, that it ought to have been allowed by 
 the commissioner. Executors are not less liable 
 to loss of papers, by time and ac<'ident. than 
 other persons Tlie settlement with the ordinary 
 is intended as a seciii-ity for the execntdr. as 
 well as for the distributees; and, after a lapse 
 of Id years, ought to he a complete i»rotection. 
 It will, nevertlii^less, be subject to impeachment 
 by the other side. If the defendants can shew 
 any error or fraial. in the transaction, they are 
 entitled to the benetit of it ; but thu burden of 
 proof must lie on them." K. 
 
 hesitation in ov»*rruling the objection, hold- 
 ing Martha Lewis, under the circumstances, 
 liable to account. The admiidstration of I). 
 B. Price and wife continued until the 24th 
 of Novendier, 1844, on which day. they hav- 
 ing failed to give new security, on the re<|ul- 
 sition of the ordinary, he revoked their let- 
 ters. E. H. Hrunson, the ordinary, then took 
 the adndnistration as of a derelict estate, 
 until the 2d July, is4r), when it was granted 
 to Wil.son C. ISruce. who has e.xenised it un- 
 til the present time. 
 
 Of the administration of .Martha Lewis, 
 aiul of D. R. Price and wife, no iirepared 
 statements of accounts liave been offered to 
 nie by the parties; indeed, no mi'morantluuis 
 have been kept by them with a view to it. 
 From the confused state of the documentary 
 testimony which has been offered to me. and 
 the multiplicity of the pcdnts testified to by 
 the witnesses, I may not he able to avoid se- 
 rious errors and inadvertencies; and though 
 the reference was kept open and protracted 
 
 *175 
 for a great length of time, *and ample oppor- 
 tunity of in(|uiry alTorded, I am by no means 
 persuaded that my minutes of testimony will 
 atford to the Court the means of doing exact 
 justice between the parties. 
 
 I proceed brielly to make such particular 
 remarks as may be neces.sary to elucidate 
 the details of Mrs. Lewis's accounts. 
 
 The estate of Jesse Lewis, tleceased. which 
 came into her hands to be admini.stered. con- 
 sisted of four negroes, to-wit: I>oll. .Margery, 
 .Mary and Ix)uisa, which has since increased 
 by the birth of three children to Louisa ; 
 choses in action, consisting of notes to the 
 amount of one thousand and forty-two 11-100 
 dollars, of which twenty-tive S2-K>0 dollars 
 was considered by the appraisers as (hudit- 
 ful ; and accounts against sundry persons, 
 amounting to four hundred and twenty-nine 
 dtdlars; goods and chattels, household and 
 plantation furniture, stock, iVc, amounting, 
 appraisement, seven hundred and two .'iT-lOO 
 dollars, inclusive of corn and fodder on the 
 |ilaiitation, valued at one hundred and sixty- 
 eight dollars. 
 
 During the year 1833, innnediately suc- 
 ceeding her husband's death, Mrs. Lewis^ 
 posses.sed herself of the real estate, being the 
 house and lot at Society Hill, and the jilau- 
 tati(ui, which latter .she used and cultivated 
 with the slaves, retaining the whole estate 
 togetlu'r, and having no sale of any part 
 tln'reof. In the Fall of that year, she made, 
 before the ordinary, the annual return re- 
 (|uired by law; but, as it was a very imper- 
 fect one. and in this Court is uot conclusive, 
 eitlu-r for or against her, I have thought it 
 best not toemliarrass my statement by assum- 
 ing it as a basis, though I am sensible that 
 to reject it is greatly to her disiidvantage, as 
 she has not l)een able to establish before me 
 payments which appear to have been satis- 
 factorily vouched before the ordinary. After 
 
 71
 
 *1T5 
 
 3 RICHARDSON'S EQUITY Rp]PORTS 
 
 the best consideration of tlie whole matter 
 of which I was capable, I came to the con- 
 clusion that I should approach nearest the 
 justice and law of the case, by charging 
 Mrs. Lewis with reasonable rent of the real 
 estate, and hire of the negroes, and allow- 
 ing her compensation for the support of the 
 children during the .vear 1833, and rejecting 
 all payments, except such as clearly appear- 
 
 *176 
 ed to be for the debts of the *intestate. The 
 propriety of this will be the more manifest, 
 when it is stated that she is charged on the 
 appraise-bill with the whole stock of provi- 
 sions on the estate at the time of the ad- 
 ministration, and that many of the accounts 
 passed before the ordinary, in her return on 
 the 30th December, 1833, were for plantation 
 and family supplies, purchased during the 
 current year. I have given to Mrs. Lewis a 
 credit of certain notes and accounts, which 
 satisfactorily appears could never have been 
 realized. Though this would more properly 
 have been done in connection with the testi- 
 mony on the account of D. B. Price, I have 
 preferred to credit them on Mrs. Lewis's ac- 
 count, as it does not affect the result, because 
 I think she should be charged with interest 
 on the amount of schedules, to the extent 
 that they were good, from the 1st, of Janu- 
 ary, 1834. It will be seen, then, that on the 
 1st of January, 1834, Mrs. Lewis, after being 
 allowed all proper credits, stands charged 
 with a balance on notes and accovmts, 
 amounting to twelve hundred and fift.y-eight 
 19-100 dollars ; a balance on hire of negroes 
 and rent of real estate amounting to thirty 
 dollars, and the whole amount of the ap- 
 praisement, being seven hundred and two 
 37-100 dollars. On the intermarriage of Mrs. 
 Lewis with D. B. Price, on the 9th January, 
 1834, these liabilities attached to her hus- 
 band, and on his formal assumption of the 
 administration, on the 15th February ensu- 
 ing, they became, by the operation of law, 
 funds in his hands. I proceed now to speak 
 more particularly of the administration of 
 D. B. Price: If on being appointed adminis- 
 trator, he had proceeded, within reasonable 
 time, to sell the articles scheduled in the bill 
 of appraisements, he might, liy the produc- 
 tion of the sale-bill, have discharged himself 
 of the liability on the face of the appraise- 
 bill. But it can hardly be pretended that the 
 sale of the miserable remnant, ten years aft- 
 erwards, should be received to diminish in 
 any way his liability. It is true there was 
 an appraisement soon after his administra- 
 tion, but if liable on this, primarily, he is al- 
 so liable as the husband of the first admin- 
 istratrix, for the difference between the two 
 appraisements. I have therefore charged 
 him with the whole amount of the first ap- 
 
 *177 
 praisement: *but as he had a right to a 
 favorable time to malce sale, I have not 
 charged interest until the first of Jauu- 
 
 72 
 
 ary, 1835. Besides these items, the subjects 
 of annual charge against him are the ne- 
 groes, the house and lot at Society Hill, and 
 the plantation. As to the negroes, there is 
 no great diversity in the testimony. I en- 
 deavored, by attentive consideration of all 
 the evidence, to ascertain a fair average an- 
 nual value of their hire. The result of this 
 inquiry is, that the woman Margery was 
 worth sixty-five dollars per annum; Mary 
 forty dollars per annum; Louisa forty dol- 
 lars per annum ; the old woman Doll not 
 more than the expenses of maintenance. In 
 thi.s estimate I have considered the facts in 
 evidence, that the woman Louisa was, dur- 
 ing the time, encumliered with the care of 
 young children and the disabilities incident 
 to child-bearing. The average annual hire of 
 the negroes, then, would be one hundred and 
 forty-five dollars. The house and lot at So- 
 ciety Hill was rented during the whole peri- 
 od of Price's administration, by the same in- 
 dividual, and from his testimony I have as- 
 certained the average annual rent of the 
 premises at forty-five dollars, and in this es- 
 timate I have made some, tliough a very 
 small allowance, for certain alleged repairs, 
 put on the house by D. B. Price, which, how- 
 ever, were very imperfectly substantiated. 
 The fact of work having been dtMie, there is 
 no doubt of, but the proof as to the details 
 and value was inconclusive. 
 
 The plantation was cultivated a portion of 
 the time by D. B. Price, and some years was 
 rented out. 
 
 The testimony satisfied me, that fifty dol- 
 lars per annum was a fair average rent of 
 the land for agricultural use, and for the 
 whole premises, with the enjoyment of the 
 domicile, \^]iich was erected by Mrs. Price, 
 after her first husl;and's death, seventy dol- 
 lars. D. B. Price claimed to be allowed on 
 the reference a credit for moneys expended 
 in erecting and improving the buildings on 
 the plantation. But as the testimony induced 
 me to think that at this period they do not 
 enhance the value of the plantation, I have 
 rejected the account. I have, therefore, 
 thought it fair to charge him only with what 
 
 *178 
 
 the witnesses testified would *be the value of 
 the plantation without the improvements. 
 
 I come now to that feature in the, case 
 which has most embarrassed me, the pre- 
 vious adjudication of which, seems to me 
 indispensable to an exact stating of the ac- 
 counts and ascertainment of the liabilities 
 and rights of the respective parties. 
 
 Before the marriage of D. B. Price and 
 Mrs. Martha Lewis, a deed of marriage set- 
 tlement was executed by him, by which the 
 interest of Mrs. Lewis in the estate of her 
 then late husband, was conveyed to a trustee, 
 John D. Price, the father of D. B. Price, in 
 trust, that he should permit D. B. Price to 
 use and enjoy the said ijroperty or interest
 
 LKWIS V. PRiCE 
 
 ^ISO 
 
 of -Martha Lewis, conveyed for flio purpose 
 of luaiiiteiiance and edmation of lier chil- 
 dren, by her deceased liushand, heinj; four in 
 nunilier ; and D. H. Price, in consideration 
 thereof, covenanted tliat he wouhl support 
 and educate the chihh-en without cliarjie. It 
 is now contended hy I). H. Price and hy J. 
 I). Price, tlie trustee, tliat their understand- 
 ini: of tile deed, when they executed it, was, 
 that it conveyed the whole estate of .Jesse 
 Lewis, and that it was in consideration of 
 the use and enjoyment of the whole, that I>. 
 li. Price covenanted to niaintnin and educate 
 the children without further charf^e. The 
 testimony exhibited is wholly insufficient, 
 even if the in(iuiry beyond the clear expres- 
 sion of the deed were permitted, to show that 
 the parties entt'vtnincd at the time such a 
 construction. 
 
 There are some ol)vioiis considerations 
 which would seem to render it scarcely c-red- 
 il)le. that any man who regarded his obliga- 
 'tions should have assmned such an under- 
 taliinii: but I do not see how he is to avoid 
 it. unless it should appear to the Court, that 
 the children of Mrs. Lewis, not beir.sr ]iarties 
 to the contract, have no richt to insist on 
 its fulfilment, and it should interpose its 
 authority to reform the contract, and save 
 the mother from the destitution wbicli the 
 nurture of the children will cost lier. P.ut 
 it is in reference to the liabilities of the 
 sureties on I). K. Price's administration bond, 
 that this niarriajie contract is first to be con- 
 sidered. There are two defects in the regis- 
 tration and execution of the deed. 
 
 *179 
 
 *lst. The aflidavit to entitle its registra- 
 tion is as follows: 
 
 State of South Carolina,) 
 Darlington District, j 
 
 Personally appeared befcnv me Martin De- 
 witt, one of the Justices of the Peace, James 
 E. Brown, and made oath, that he did see 
 l)aniel B. Price sign and seal the above in- 
 strument of writing, for the use, purpose 
 herein mentioned, and further he did see 
 Abel Candy subscribe with himself thereto. 
 Sworn to before me this 1st day of April, 
 is:;-l. 
 
 [Signed.! Jas. E. Browu. 
 
 Martin Dewitt. J. P. 
 
 2d. Tlie schedule of property settled, re- 
 quired by law to be attached to the di'cd, is 
 not signed by the parties. J. D. I'rice, one of 
 the sureties, is a party to the deed, and can 
 claim no benefit from tlu> infornnilities in its 
 execution or registration. But John N. Wil- 
 liams, the other surety, in my opiinon has 
 not had the constructive notice which is pre- 
 sumed from a proper registration, nor is 
 there any evidence that he ever knew of the 
 marriage settlement jirevious to the in.stitu- 
 tiou of th(>se proceedings. It seems to me then, 
 very clear, that the Court will protect him 
 not only by subrogating Mrs. I'rice's interest 
 
 ip. the personalty of the estate, to the ex- 
 tinguishment of D. B. Price's liability as ad- 
 miiuslrator, but will also rtxiuire the ac- 
 counts of D. B. Price to be so stated with 
 reference to J. N. Williams's lialdlity. as that 
 he shall have every credit to which he would 
 have been entitled, if the marriage settlement 
 had not taken place ; under this impression, 
 I have allowed D. B. Price, what seenus to 
 me a very rea.sonable charge, for the amiual 
 supptn-t of the children ; and as D. B. Price 
 himself is utterly insolvent, as he always 
 has been ; and, as I am satisfied that the 
 other surety on his bond, John I). Price, is 
 so nearly insolvent, that his liability is not 
 l)articularly looked to by any of the parties. 
 I have thought it necessary to state the 
 account of D. B. Price, only with reference 
 to what I considered the liability and the 
 rights of Jolm D. Williams. In establishing 
 the annual allowance for board, clothing, 
 tuition and medical attendance of Jesse Lew- 
 
 *180 
 
 is' children, at the *sum of o]ie hundred and 
 sixty dollars. I have fully considered all the 
 facts which appear in the reported testimony. 
 
 The accounts of D. B. Price, stated in ref- 
 erence to these views, exhibit a balance 
 against Price of four thousand one hundred 
 and sixty-nine (!N-100 dollars; of this amount., 
 the share of Price and wife is thirteen nun- 
 dred and eighty-nine !SS-100 dollars, leaving 
 a balance of two tliousand seven hundred 
 and sevent.v-nine NJS-lOO dollars, due to the 
 children of Jes.se Lewis, for which John N. 
 Williams is liable. 1 reconnnend that the 
 share of Mrs. I'rice. in the proceed.^ of sale 
 of negroes of the estate of Jesse Lewis, lately 
 made by order of the Court, be applied fo> 
 said Williams's lial illty. also their share of 
 the jiortion of J. F. I^wis, a deceased child. 
 
 The account of D. B. I'rice, stated with 
 reference to his own liability, ditlers from 
 the alM)ve in the exclusion of any allowance 
 for the maintenance of the children of Jesse 
 Lewis, exhibiting thereby a considerable an- 
 nual balance against him for rent of land, 
 and of house and lot at Society Hill, and 
 hire of negroes, amounting in all, with in- 
 terest on each balance, to the 1st January, 
 isr»(), to five thousand nine hundred and 
 thirteen CO-KH) dollars. For this. John D. 
 Prici" is liable as the surety of D. B. Price, 
 except for the .sum of ten hundred and 
 seventy-one 7.'>-l(H) dollars, accruing from the 
 rent of the plantation and house ami lot. Of 
 the sum above stated of five thousand nine 
 hundred and thirteen OO-KM) dollars, as due 
 by I). B. Price, the sum of six hundred and 
 sixty-three (ir>-U)0 dollars, is due to John D. 
 I'rice as trustee. 
 
 The Commissioner begs the indulgent con- 
 sideration of the Court for the im)»erf'ections 
 of this report. The great anxiety of the 
 parties to bring the cause to a final hearing, 
 has determined him to present it in a very 
 
 7a
 
 -=^180 
 
 RICHARDSON'S EQUITY REPORTS 
 
 immature condition, witli the hope that it 
 would bring before the Court, all the litigated 
 points of the case, and that under the orders 
 of the Court he may be able so to rectify it, 
 as to do justice between the parties. 
 All of which is respectfully submitted. 
 Thos. C. Evans, Commissioner. 
 
 *181 
 *Marriage Settlement. 
 
 State of South Carolina, [ 
 Darlington District.] 
 This Indenture of three parts, made this 
 9th day of January, in the year of our Lord 
 one thousand eight hundred and thirty-four, 
 and in the fifty-eighth year of the Sovereignty 
 and Independence o^ the United States of 
 America, between D. B. Price of the tirst part, 
 Martha Lewis of the second part, and John 
 D. Price of the third part, witnesseth, that 
 whereas a marriage is intended to be shortly 
 liad and solemnized, by and between the said 
 D. B. Price and Martha Lewis, and whereas 
 the said Martha, by her marriage with her 
 late husband, Jesse Lewis, now deceased, 
 has become the mother of the following four 
 children, viz. William David Lewis, Rachel 
 Amelia Lewis, John Fountain Lewis and Eliz- 
 abeth Catharine Lewis, all whom are now 
 living; and whereas the said Martha is en- 
 titled to an undivided third part of the real 
 and personal estate and choses in action, of 
 which her said husband, Jesse Lewis, at the 
 time of his death, was seized and possessed, 
 and to which he was then entitled, as well 
 an undivided third part of the increase, rents 
 and profits thereof, since that time. And 
 whereas, it hath been agreed, that the said 
 D. B. Price, after the said intended marriage 
 had, should receive and enjoy the said prop- 
 erty belonging to the said Martha, during the 
 said marriage, he appropriating so much 
 thereof, as may be necessary to the purpose 
 of boarding, clothing and tuition of the said 
 children of the said Martha, with the physi- 
 cian's bills and other expenses, and making 
 no charge against them for said purposes. 
 2s()w this Indenture witnesseth, that in pur- 
 suance of the liefore recited agreement, and 
 in consideration of the sum of one dollar by 
 the said J. D. Price, trustee, to the said 
 Martha paid, the receipt of which is hereby 
 acknowledged, the said Martha, by and with 
 the consent antl agreement of the said D. B. 
 I'rice, testified byi his being made a party 
 to and signing and delivering these presents, 
 bath granted, bargained, sold and transfer- 
 red, and by these presents doth grant, bar- 
 
 *182 
 gain, sell and transfer unto *the said J. D. 
 Price, trustee, his heirs, executors and admin- 
 isti'ators, all and singular her right, title 
 and interest, of, in and to her undivided 
 third part of the real and personal estate and 
 choses in action, of which the said Jesse 
 Lewis at the time of his death was seized, 
 possessed or entitled, and of, in and to the 
 rents, increase, interests and profits thereof, 
 
 ■74 
 
 since that time ; consisting of one tract of 
 land situated in the District and State, afore- 
 said, on the north side of Black Creek, bound- 
 ed on S. E. and N. E. by lands belonging to 
 the estate of Adam Marshall, S. E. by Wil- 
 liam Lewis's land, and N. W. by John F. 
 Wilson's land. One other tract of land in 
 the district and State aforesaid, bounded by 
 lands owned in 1821!, N. by David Smoot, E. 
 by S. Adams, S. by Lewis Hill, and W. by 
 John Lide ; one other tract of land in the 
 District and State aforesaid, east side of 
 Horse Branch, bounded by lands owned in 
 1S1!6. N. by William Lewis and Thomas 
 Smith, E. by S. Adams, and S. and W. by said 
 Horse Branch ; and one tract of land of one 
 acre on Society Hill, and bounded in 1829 N. 
 by M. Sparks's land, W. by Camden road, 
 S. by a street, and E. lands late of the estate 
 of George Wilds; also negro slaves Western, 
 Mary and Louisa, with other articles of per- 
 sonal property described in the appraisement 
 of the estate of the said Jesse Lewis, hied in 
 the Oruinary's oftice of the said District, a 
 copy of which is hereunto annexed, with 
 one-third undivided part of the notes and 
 accounts due and owing to the said estate; 
 to have and to hold the same in trust never- 
 theless, and for such purposes, and under 
 such provisions and agreements as are here- 
 inafter mentioned, that is to say, in trust 
 for the said Martha and her assigns, until 
 the solemnization of the said intended mar- 
 riage, (paying from time to time one-third 
 part of the taxes of the said real estate, to 
 be by him collected out of the rents and prof- 
 its thereof,) then in trust, that the said J. D. 
 Price, trustee, his executors and administra- 
 tors, (still paying the said third part of the 
 taxes as aforesaid,) shall suffer the said D. 
 B. Price to use, have, receive, occupy and en- 
 joy all the interest and profits of the said 
 property, (allowing the property itself to re- 
 main undivided,) so long as the said marriage 
 
 *183 
 shall continue *and the said D. B. Price 
 shall maintain and educate the said chil- 
 dren or the survivor or survivors of them, 
 without making any charge against them or 
 either of them ; and shall also permit the 
 said D. B. Price to use the principal of the 
 said property, if the same shall be deemed 
 necessary by the said trustee, his heirs, ex- 
 ecutors or administrators, for the jjurposes 
 of Maintain and ediication, as above mention- 
 ed, provided the use, occupation, enjoyment, 
 &c. of the said property shall not continue 
 inito the said D. B. I'rice after the termina- 
 tion of the said marriage, longer than the 
 time at which the eldest survivor of the said 
 children shall arrive at the age of twenty- 
 one years or marry, upon the happening of 
 which event, or either of them, after the ter- 
 mination of the said marriage by the death 
 of the said Martha, the said trustee, his 
 heirs, executors or administrators to hold 
 the said property, or the balance thereof,
 
 LEWIS V. PRICE 
 
 ^181 
 
 wliitli shall miiaiii uiiexiMMitU'd. to lie iMjually 
 <li\ itU'd and delivenHl to the tiuivivor or sur- 
 vivors of the said children: hut if the said 
 Martha shall survive the said D. H. Price, 
 tlu'ii and in that ease the said J. I). Price, 
 trustee, liis executors or adndnistrat<»rs. shall 
 re-convey to the said Martha, her heirs or 
 assij,'ns. all and sin^idar the undivided third 
 part of the property hereinhefore set forth, 
 or so much thereof as shall remain unexpend- 
 ed, according to the true intent and uieainn;; 
 of thi-se pn'sents. In testimony whereof, we 
 have interchaufieahly set our hands and 
 si'als. the day and year ahove written. 
 Sifiiied. sealed and d«'livered^ 
 in presence of \ 
 
 James G. lirown, l»aniel I>. I'rice, [L. S.) 
 Ahel Gandy. Martha Lewis, |L. S.l 
 
 John n. Price, IL. S.] 
 
 State of Soutii ('arolina.| 
 
 Darlington Di.strict. jj 
 
 Personally appeareil 1 efore me Martin 
 
 Dewitt. Justice of the Peace. James G. 
 
 lirown, and made oath that he did see Daniel 
 
 H. Price sij-'n and seal the ahove instrument 
 
 *184 
 
 of writini;, for the *use and purposes herein 
 mentioned, and further he did see Ahel Gandy 
 suhscriiie witli liimself thereto. 
 
 Sworn to before me this 1st day of Ai)ril. 
 1.S'.4. 
 
 Martin Dewitt, J. P. James G. Hrown. 
 Decree. 
 
 Dunkin. Ch. Jesse Lewis died intestate, 
 aijout October, 1S32. He left a widow antl 
 four children, the youngest of whom was an 
 infant of very tender years. The widow ad- 
 nnnistered on the estate. Suhseiiuently. to 
 wit: — lull January. IS'U — she intermarried 
 with the defendant, D. B. I'rice. On the IHth 
 l-'ehrvniry. l.s.'{4, letters of administration 
 were granted to I'rite and wife, they having 
 entered into bond to the ordinary, with John 
 D. Price, (father of D. H. Price) and John N. 
 >\ illiauKs. as sureties. On the 21th Xovendier. 
 1844, these letters were revoked, in conse- 
 quence of the failure of Price to give new- 
 security as retiuired by the ordinary. Wilson 
 C. liruce is at present the adnunistrator. 
 This bill is filed by »»ne of the children of 
 Jesse Lewis, deceased, for an account of his 
 father's estate. 
 
 It is alleged that 1 ». P.. Price is insolvent. 
 and tliat John D. Price, one of the smetles. 
 is nearly so, and the scf»pe and objwt «>f 
 the bill is, to tix tlu' liaiiility on John N. Wil- 
 liams, the other surely. 
 
 The case was heard on exceptions to the 
 commissioner's report, and the Court is very 
 much aided by the cari-ful investigation and 
 lucid statement which is there exhibited. If 
 there be error in the conclusions of the olhcer. 
 it arises from the want of a previous adjudi- 
 cation of the principles on which the account 
 should be adjusted. 
 
 At the time of Jesse Lewis's death, be had 
 
 a house at Society Hill, and a farm at som<^ 
 distance from it. According to the inventory 
 and api»raiseuient. made 7th November. ls:V2,. 
 tliere were two negroes, Mary and Ixtuisa^ 
 at Society Hill, and furniture, &c. valued at 
 two hundred and twenty-seven dollars, and 
 at the plantation, two negroes. Doll an<l. 
 
 ♦185 
 Margery, and crop of *corn. stock. &i-. valued 
 at three hundred and seventy-tive dollars — 
 making the persoiuilty. exclusive of the ne- 
 grot's, worth six hundred and two dollars. 
 In addition to this, tliere were more than one 
 hundred small notes and open accounts, 
 from thirty cents and upwards, but amount- 
 ing, altogether, to fourteen hundred and 
 seventy dollars, or thereabouts. 
 
 In ls:W, the administratrix made a re- 
 turn to the ordinary, which, as the Com- 
 missioner reports, "appears to have lieen 
 .v.itisfai-torily vouche<l to the ordinary,"' and, 
 acc(»rding to which, .she had paid debts of 
 the intestate to the amount of four huiulred 
 and eiglity-six dollars ninety-eight ceiits_ 
 Suiiposing these to have lieen paid from tlur 
 debts collected, and that all the notes and 
 accounts were good, and that she was charge- 
 able with them, there was a balance due by 
 her. January. is.".4. of nine hundred and. 
 eighty-three dollars. 
 
 At this time, D. H. Price became adminis- 
 trator, and continued in possession until 
 1S44. At that time he transferred to his suc^ 
 cessor all the in'grtK's, with their iiK-rea.sei, 
 iuul the furniture, &c. in the condition it 
 then was. One of the children of Jesse I^ew- 
 is died in ls.'iO. The other three, so far as: 
 the Court understands from the evidence,, 
 were decently brought up by the defendant,, 
 in relation to nurture, clothing and educa- 
 tion. 
 
 When it is borne in mind that neither titt? 
 mother nor the .step-father are bound Yty 
 law to maintain the children of a fornrer 
 marriage, it would seem not very diflicult 
 in an (udinary case tt> adjn.st the extent of 
 the liability of the surety on Price's boiuU 
 to the children of the intestate. 
 
 Supposing the four negroes to have beeiK 
 hired out, the Commissioner, on sjitisfactorjr 
 testimony, has e.stimatiHl the annual hire at 
 one hundred and forty-tive dollars, the rent 
 of the house at Society Hill at forty-tive- 
 dollars, and the rent of the plantation at 
 Hfty dollars — making the entire averag«' in- 
 come for the ten years, annually, two Iiaf«- 
 dred and four dollars. The Commissitujuer 
 tixes one hundred and sixty dollars "a-s. at 
 very reasonable allowance, annually, for tbe- 
 board, clothing, tuition and nu'dical atten- 
 dance of Jes.se Lewis's children." But. iie 
 
 *186 
 ad<lition *to the alxive rent and hire,, if tlie 
 administrator be charginl with the annual 
 interest on all the delits, as well as the in- 
 terest on the appraised value of the furni- 
 ture and other personalty, the whole annual
 
 *186 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 income would be about three hundred and 
 twenty dollars, of which the annual share 
 of the children would be two hundred and 
 fourteen dollars, leaving them an annual 
 surplus of fifty-four dollars. But, as has 
 been said, if it were au ordinary case and a 
 stranger had been the administrator for ten 
 years, and then had surrendered his trust, 
 if he had, at that time, turned over to the 
 children their patrimony undiminished in 
 capital l)y the expenses of their maintenance 
 and education, it would exhibit a fidelity, 
 frugality and success which would be wor- 
 thy of all commendation. On that principle, 
 and charging the administrator with the full 
 amount of the appraisement, as well as with 
 every debt, great and small, he should, in 
 1844, have delivered to the children their 
 negroes, with their increase, and have paid 
 them about one thousand dollars in money. 
 The severest judgment could have exacted 
 no more from him. Assuming, as he did, the 
 duties both of guardian and administrator, 
 he was bound to attend to the decent sup- 
 port of the children, and to do so, would 
 fully consume any interest he could make on 
 their share of the property. 
 
 At the expiration of liis stewardship, de- 
 livering over to the children their two-thirds, 
 and to the widow one-third, he would have 
 accounted faithfully. It is difficult to con- 
 ceive, in such case, on what principle the 
 children could ask more. The law requires 
 fidelity and diligence in every one assuming 
 a fiduciary relation, whether it be guardian, 
 administrator or other trustee, and this must 
 be exercised according to the circumstances 
 of the case — and no two cases are likely to 
 present the same features. 
 
 The interests of minors and other cestui 
 que trusts must be protected, but at the same 
 time, good and prudent men must not be 
 discouraged from acting in such capacity. 
 The Court had occasion to consider this sub- 
 ject in the recent case of l\ve v. Carr, (2 
 Strob. Eq. 105,) and will not repeat what is 
 
 *187 
 there said. *The defendant, D. B. Price, 
 though administrator, was not a stranger. 
 He had married the widow in January, 1834. 
 She, with her four children, were living at 
 the place in the country. "The house was 
 a log house, old and leaky. It was necessary 
 to build a new house for the comfort of the 
 family." (Brown's evidence.) "A new house, 
 not tine but plain, ordinary," was built, at 
 an expense of two hundred and tvi^enty-tive 
 dollars. 
 
 There were four negroes: Doll was old, 
 and not worth more than the expense of 
 keeping her; the successor of Price paid fif- 
 teen dollars a year for keeping her. Mary 
 was kept about the house, and so was Louisa, 
 except one or two years ; she was a breed- 
 ing woman. Margery, the remaining negro, 
 was hired out at sixty dollars, and the house 
 at Society Hill was rented out at about for- 
 
 76 
 
 ty-five dollars per annum. The furniture 
 about the house in which they lived, seems 
 to have been of a plain character. In this 
 way, the family lived together for seven 
 years out of the ten during which Price was 
 administrator. After that time the place 
 was rented out. As has been stated, when 
 his administration was revoked, in 1844, he 
 gave up the four negroes, now become six, 
 and he gave up the furniture, cattle, planta- 
 tion, tools, &c. That for which he is prop- 
 erly accountable, as administrator, in ref- 
 erence to the rights of the children, is for 
 the judicious and faithful discharge of his 
 trust in the situation in which he was plac- 
 ed. It is not suggested that he was wanting 
 in any thing towards them personally. They 
 were well dressed and well provided, and 
 received such etiucation as seems to be cus- 
 tomary. If there were nothing more in the 
 case, the Court would think, on the testi- 
 mony, that justice woul'd have been done, if, 
 in 1844, the children of Jesse Lewis had re- 
 ceived their share of the lands and ne- 
 groes, and their proportion of nine hundred 
 and eighty-three dollars, leaving to the 
 defendants, I'rice and wife, the residue of 
 the land, negroes and cash. And it may be 
 as well here to remark, that in ascertaining 
 this cash balance, due by Mrs. Lewis, Janu- 
 ary, 1844. the Court has given her the bene- 
 fit of the retui-n made to the ordinary 30th 
 December, 1833. In Wright v. Wright, (2 
 
 *188 
 McC. *Eq. 197,) it is said, that in passing his 
 accounts with the ordinary, the executor or 
 administrator should produce his vouchers, 
 and that after a long lapse of time it is not 
 to be presumed that the ordinary suffered 
 the account to pass without satisfactory 
 evidence that it was correct. "Executors are 
 not less liable to loss of papers by time and 
 accident than other persons ; the settlement 
 with the ordinary is intended as a security 
 for the executor, as well as for the distribU' 
 tees." "The regularity of the accounts, the 
 death of witnesses, loss of vouchers, and the 
 lapse of time, must all be taken into consid- 
 eration." In that case, a lapse of sixteen 
 years was held to be a "complete protection" 
 to the executor. 
 
 The Commissioner, in reluctantly declin- 
 ing to adopt the return of 1833, says he is 
 "sensible that to reject it is greatly to her. 
 (Mrs. Lewis's) disadvantage, as she has not 
 been able to establish before me payments 
 which appear to have been satisfactorily 
 vouched before the ordinary." 
 
 This is a bill to subject the surety to lia- 
 bility, and there are circumstances in this 
 case which seem to entitle the surety, in a 
 peculiar manner, to the protection of the 
 account passed with the ordinary in 1833. 
 
 The Court has said that in an ordinary 
 case, justice would have been done to the 
 cliildreu, if the defendant had, in 1844, trans- 
 ferred or surrendered to them their share
 
 I.KWIS V. riiUK 
 
 4i)l 
 
 of the capital of their father's estate, lint 
 it remains to lie imiuiied what law the par- 
 ties liave made for themselves — liow far wiiat 
 would seem to be abstract justice has been 
 controlled or modified by tlie acts or a{?i'ee- 
 nifut of the parties. Mrs. Lewis, in Janu- 
 ary, is."!4, beinjr about to marry a young 
 man without property, deemed it prudent to 
 have a marriaj-'e settlement. An instrument 
 was accordingly prei)ared and executed. The 
 defendant, I>. B. Price, insists that, accord- 
 ing to the previous agreement, as also accord- 
 ing to Ins understanding of the terms of the 
 settlement, lioth then and now. the proper- 
 ty of Jesse I.«wis was to be kept togetlier, 
 and he was to have tlie use of it, and main- 
 tain and educate tlie children without charge. 
 
 *189 
 The subscribing witness to *the .settlement 
 testiht'd tliat it was his own understanding 
 of the instrument, that I>. 15. Trice was to 
 have tlie use of the whole property of Lew- 
 is's estate, and was to support the children, 
 and that the parties put the same construc- 
 tion on it. On the other hand, the complain- 
 ant submits, that by the true construction of 
 the settlement. Price was only to have the 
 usufruct of Mrs. Lewis's interest in the prop- 
 erty, and out of this usufruct, her children, 
 by Lewis, were to be maintainetl and edu- 
 cated by him (I'rice) without charge. All 
 agree that, by the terms of the settlement, 
 if Price survived his wife, the property was 
 to i)ass to the children of the first marriage, 
 when the eldest was of age. 
 
 It is hardly necessary to say that the par- 
 ties must ordinarily be bound, not by their 
 understanding of an instrument, but by the 
 construction which the Court affixes to the 
 terms which they at the time u.sed. But with 
 all this, it is no more than is due. as well 
 to the intelligence as to the good faith of 
 I). li. Price, to say that he very dearly prov- 
 ed what was his understanding, and that this 
 would have been, under the circumstances, 
 the only reasdiiable arrangement. Is the 
 instrument susceptible of this construction"? 
 It is lawful to look at the conilition of things 
 about the parties, and the objects to which 
 the terms relate. Mrs. Lewis had a very 
 young family, living in the country, wltli an 
 income barely suthcient to suitport them. 
 She was interested in a third of her hus- 
 band's e.state : but it would have impaired 
 very much their means of subsistence, if 
 the property was not kept in common — at 
 least, until her children were grown. The 
 property was entirely too small to be sus- 
 ceptible of i)re.sent division, without preju- 
 dice to her children — at least, so she seems 
 to have thought. The leading piirpo.ses of 
 the settlement seem, therefore, to have been, 
 that the proiterty slu)uld be kept undivided; 
 that the children should be supported, and 
 that their interest in their father'^ estate 
 should not be impaired for this purpose, but 
 that if any encroachment on capital was 
 
 neiessary, it should be taken from her share, 
 and that what was left of this share should 
 be secured to her children in the event of her 
 decea.se during the coverture. The deed 
 
 •190 
 transfers to the *trustee Martha Lewis's intt'i- 
 est in her late husband's estate, real and per- 
 sonal, describing it as one-third part thereof, 
 in trust, after the marriage, to "suffer I ». B. 
 Price to use, have, receive, occupy and enjoy 
 all the interests and profits of the said prop- 
 erty, (allowing the property itself to remain 
 undivided) so long as the said marriage 
 .shall continue; and the said D. B. Price 
 shall maintain and educate the said children, 
 or the survivors or survivor of them, without 
 making any charge against them or eitlier 
 of them; and shall also pernut the said I». 
 B. I'rice to use the principal of the said proii- 
 erty, if the same shall be deemed necessary 
 by the said trustee, his heirs, executors or 
 administrators, for the purpo.se of mainte- 
 nance and education as above mentioned." 
 
 It is then provided, that in the event of the 
 death of the wife during the coverture. I). P.. 
 Price .shall enjoy till the eldest child shall bt- 
 of age or marry, and then that the trustee 
 shall hold the said property, or the balance 
 thereof, which shall remain unexiK'iided, to^ 
 be e(iually divided among the children. But 
 if the wife should survive the husband, then 
 the trustee was to re-convey to her "all and 
 singular the undivided third part of the 
 proi)erty hereinbefore set forth, or so much 
 thereof as shall remain unexpended." 
 
 When it is remembered what was the ac- 
 tual condition of the family — of what the 
 property of Lewis consisted, and then the 
 express stii)ulatioii "to allow the property 
 it.self to remain undivided." it is very easy 
 to account for the conclusion of Price, that 
 he was to occupy anil enjoy, subject only to 
 the burden of maintainiiig and educating the 
 children without charge. 
 
 It is difficult for the Court to determine 
 what was precisely meant by this provision, 
 that "the property itself was to remain un- 
 divided." 
 
 If it was meant that the whole property 
 should remain undivided until the law might 
 require a division, to wit : — when the eldest 
 child was of age or married, and the chil- 
 dren, in the mean time, be maintained and 
 educated, and that any encroachment on 
 capital for that purpose should be out of the 
 
 *191 
 wife's *share. then Price luifilled his duty 
 in keeping the family and the property to- 
 gether, as the period for the division had 
 not arrived, when he surrendered the admin- 
 istration. On this construction Price acted, 
 as is shown by his conduct. In the first 
 year he expended, for the comfort of the faui- 
 ily and in the improvement of the proi)erty. 
 moro than three times the am<nint of his 
 wife's interest in the rent and hire which 
 came to his hands. By the stipulation of 
 
 Ti
 
 *191 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 the contract, he was bound not to divide off 
 his wife's share. 
 
 The income of the whole was barely suffi- 
 cient to give them food and clothing and a 
 very humble education. He managed the 
 property well and judiciously, so far as the 
 Court is able to judge from the evidence. 
 
 The Court is of opinion, that the instru- 
 ment is susceptible of the construction which 
 the parties seem to have all given to it. If 
 it be said that the mother had no right to 
 make such agreement, that may be true; 
 but if the children insist on the benefit of 
 the settlement, they must abide by the moth- 
 er's act. Nor have they any just cause of 
 complaint. At the end of ten years they re- 
 ceived their capital unimpaired, although 
 they have been maintained and educated ; 
 and they have also the capital of their moth- 
 er's share secured by the terms of the settle- 
 ment. On the other hand, the Commissioner 
 has submitted an account predicated on the 
 construction proposed by the complainant. 
 The result is at once instructive and start- 
 ling. It has been already stated that Lewis 
 left but four negroes, one of whom was 
 worthless, and the other three were females. 
 He lived in the country with his family, 
 where he had the usual furniture for such an 
 establishment, together with the ordinary 
 implements of husbandry and some stock. 
 Besides this, he left nothing but the house at 
 Society Hill, and the notes and accounts 
 which have been mentioned. For the ten 
 years that the defendant held the prt)perty, 
 the children were properly maintained and 
 educated. At tlie expiration of that time, 
 every thing was surrendered in about as good 
 a plight as it was received, except, perhaps 
 that the furniture, &c, had suffered from 
 
 *192 
 *the abrasions of time and service. If the 
 administrator had collected every note and 
 account, great and small, good and bad, the 
 amount would not much exceed fourteen 
 hundred dollars. Yet the report of the Com- 
 missioner brings the administrator in debt, 
 on 1st January, 1850, five thousand nine hun- 
 dred and thirteen dollars sixty cents. 
 
 If the whole personal estate of Jesse Lewis 
 had been exposed to sale, (including the 
 choses in action) on the day after his death, 
 it is very doubtful if it would liave brought 
 more than one-third of the sum thus report- 
 ed. But Mrs. Lewis had paid nearly five 
 hundred dollars of her deceased husband's 
 debts. 
 
 As the defendant. Price, failed to account 
 satisfactorily for the choses in action of 
 Jesse Lewis's estate, the Commissioner was 
 well warranted in charging him with the 
 amount ; but he is entitled to credit for the 
 sums paid by Mrs. Lewis, while administra- 
 trix. This reduces the cash liability on 1st 
 January, 18.34, to nine hundred and eighty- 
 tliree dollars. On this sum he is chargeable 
 with interest since he surrendered the ad- 
 
 78 
 
 ministration, in November, 1844. Tlie extent 
 of his liability on the appraisement bill (as 
 it is termed) must be referred back to the 
 Commissioner. According to tlie construc- 
 tion which the Court gives to the settlement. 
 Price was entitled to use the property as it 
 was generally used. When he gave up the 
 administration, he surrendered also, or pur- 
 ported to surrender, all that had not been 
 consumed in the use. On this matter the 
 Commissioner may report in detail what 
 articles included in the appraisement of 7th 
 November, 1832, were not turned over by 
 the defendant in November, 1844, with any 
 special remarks which he may think proper 
 to offer. 
 
 The Court is of opinion that the interest 
 which accrued to the wife of the defendant, 
 by the death of her child, in 1836, is not af- 
 fected by or included in the terms of the set- 
 tlement, and that the same is subject to the 
 satisfaction of any indebtedness which may 
 be found to exist on the administration of 
 Jesse Lewis's estate, by either of the parties. 
 
 Any further or final order is reserved until 
 *193 
 the hearing of the *Commissioner's report, 
 to be prepared according to the principles of 
 this decree. 
 
 The comi)lainant appealed, on the following 
 grounds. 
 
 1. Because his Honor decreed that, in mak- 
 ing up the accounts of the administrators of 
 the estate of Jesse Lewis, the account cur- 
 rent filed by Mrs. Price in 1833, should be 
 assumed as correct ; and, whereas, it is sub- 
 mitted that the amounts therein charged as 
 paid, were not vouched by sufficient evidence, 
 and the account, as a whole, was discredited 
 by the following among other facts establish- 
 ed at the hearing: 1st. The items do not ap- 
 pear to have been paid on account of the es- 
 tate, and were not, so far as we are inform- 
 ed by the evidence, vouched to the satisfac- 
 tion of the ordinary, to whom the accounts 
 were rendered. 2d. Many of the amounts 
 charged, were proved by the administrators 
 themselves to have been paid in discharge of 
 the debts of Mrs. Price. 3d. There was no 
 evidence of loss of vouchers or death of wit- 
 nesses. 4th. Many of the individuals to 
 whom payments were alleged to have been 
 made, were within the call of the defendant, 
 and were not examined to sustain the ac- 
 count; and one who was examined as to the 
 sum of one hundred dollars or more, charged 
 as paid him, proved that he had no such de- 
 mand against the estate. 
 
 2. Because, supposing the account of 1833 
 correct as to the amounts paid by ^Nlrs. Price, 
 the general balance decreed to be due the es- 
 tate is incorrect, as the rent of the house 
 and lot at Society Hill, and the crops for 18.32 
 and 1833, received by Mrs. Price, were not 
 included in the estimate by the Chancellor. 
 
 3. Because, by the express terms of the 
 marriage settlement, D. B. Price bound him-
 
 LEWIS V. PRICE 
 
 ^:9G 
 
 self to support, maintain and eiliKiitf the 
 complainant ami otiicr cliiltlreii of Jt'sst* Lew- 
 is, from tho rents and capital of the luirtion 
 of the estate to which his wife was entitled, 
 and it is suhniitted that the Chancellor erred 
 In allowing; him to dnnw them in thi' afon*- 
 said particulars, to the extent of the annual 
 income of tlie whole estate. 
 
 4. lU'cause, if it be conce<led that I'rice was 
 authorized to charge the whole ex[>ense of the 
 
 *194 
 su|iport and education of the *<hildren, esti- 
 mated at one hundred and sixty dollars nn- 
 nually. in their own funds, there would he an 
 annual balance a^'ainst him of sixty or ei^dity 
 dollars, from is;{4 to 1S44, besides inti'rest ; 
 and it is submitted his Honor erred in rulinj; 
 that his liability on account of the receipts 
 of the annual income of the estate should be 
 balanced by the sui»port, &c. of the children. 
 
 5. Because D. B. I'rice was not entitled to 
 charge for board, clothing and education of 
 tlie children, inasmuch as he made no charge 
 at the time; made no returns to the ordinary, 
 and liled no account or statement of his re- 
 ceipts and disbursements on account of the 
 estate with his answer, nor did any other of 
 the defendants. 
 
 6. Because his Honor should have charged 
 the defendants with the value of the articles 
 set forth in the appraisement, with interest 
 from 1S"{4, inasmuch as many of the articles 
 were consumed by the said I'rice in the use, 
 or made away with, many were greatly reduc- 
 ed in value when sold by the said I'rice in 
 1S44. 
 
 7. Bt'cause his Honor erred in ruling that 
 1). B. I'rice was only liable in the balanc*' 
 found due by Mr.s. I'rice from 1S44, instead 
 of l.s:54. 
 
 8. Because the said decree is. in otl^r re- 
 spects, contrary to evidence, law and equity. 
 
 Dargaii, for comitlainant. 
 Moses & Haynsworth, contra. 
 
 .lollNSTOX, t"h.. delivered the opinion of 
 the Court. 
 
 The erroneous results of tlie accounts, as 
 taken, are forcibly pointed out in the decree: 
 and lead irresistibly ti> the conclusion, that 
 error exists somewlu're in the jiroceeding. 
 
 But, though we are greatly disposed to ex- 
 onerate the def«'ndant, I'rice, as far as pos- 
 sible, from these results; we cannot con.sent 
 to do so, by what appears to us to be a mis- 
 construction of the nnirriage settlement. 
 
 Our opinion is, that, by a sound interpre- 
 tation of that instrument, it can oiierate only 
 
 *195 
 upon the third part of the estate, to ♦which 
 Mrs. I'rice was entitled : and that the chil- 
 dren were to be maintained and educated 
 out of the income, (and, if necessary, the 
 capital) of that portion, only, of the estate: 
 leaving the other two-thirds, with its income. 
 
 ta l)e accounted for, by the adndnistrator, as 
 the iiroperty of the children. 
 
 Let us read such portions of the settlement 
 as relate to this pcdnt, bearing in uund. tit 
 the same time, that .Mrs. I'rice, the settler, 
 had no |iowi'r to dispose of any thing beyond 
 her own property. After reciting the mar- 
 riage contemplated between herself and I'rice, 
 and that she had four children, and was en- 
 titled to a third part of her late husband's 
 estate, with a proportiomite share of the 
 rents, protits and increase thereof, — the set- 
 tlement proceeds to state, that "it hath been 
 agreed, that the said I). B. I'rice. after the 
 sai.l intended marriage, should receive and 
 enjoy the sai<l property belonging to the said 
 .Martha, during the said marriage. — he ap- 
 propriating so nnich thereof as may be nec- 
 essary to the pun>ose of boarding. cl(»thing 
 and tuition of the said children.'" — "with the 
 physician's bills and other expi'uses — and 
 maUing no charge against them, for said pur- 
 poses." Here we have an exact descriiition of 
 the i)roperty to be settled, and an annuncia- 
 tion of the objects and terms of the settle- 
 ment. Then follows the conveyance of the 
 property by its owner, in which she conveys, 
 to the trustee, "all and singular her right, 
 title and interest" in 'iier undivided third 
 part of the real and personal estate and 
 choses'' of her late husband, and of "the 
 rents, increase, interests and protits thereof," 
 since his death: in trust, that J. D. I'rice, 
 the trustee, "shall suiter the said D. B. 
 I'rice," the husband, "to u.se, have, rec-eive, 
 occupy and enjoy all the interests and profits 
 i>f the said pioperty." Now, what property 
 can this expression refer to, other than that, 
 before described, as the property, or share, 
 of Mrs. I'rice, which she had ccuiveyed to the 
 trustee, and, as to which alone, he, as legal 
 owner had power to suffer, or allow, the use 
 to the husband ■)• The instrument iunnediate- 
 ly lu'oceeds, after thus speaking of the use 
 of the said property, in a parenthetical form, 
 to throw in the provision, "(allowing the prop- 
 MSB 
 jcrty, itself, to remain vnidivided.)" This *evi- 
 I dently refers to the said property: i. e. to the 
 thirds of the widow, which she had granted, 
 iind of which the trustee was to allow the use 
 I to the husband. 
 
 But. to continue. It was to be kejtt to- 
 gether and the u.se of it allowed to the hus- 
 band, "so long as the said marriage shall 
 (•(Uitinue," i. e. during the joint lives of the 
 married parties. But it "shall not continue 
 unto the .said D. B. I'rice after the termi- 
 nation of the said nuirriage," 1. e. if be 
 shall become the survivor by the death of 
 his wife, "longer than the term at which 
 the elilest of the said children shall ar- 
 rive at the age of twenty-one years, or mar 
 ry." What is to be done with it in that 
 event'/ The in.»<trument answers, it is "to be 
 equally divided, and delivered to the sur- 
 vivor, or survivors, of the said children." 
 
 79
 
 *196 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 Until that time it is "to remain iiiulivided." 
 The reference is constantly to the same prop- 
 erty; and that is the widow's share. This 
 the husband is to have the use of: and the 
 stipulation is, that, having this use — "the said 
 D. B. Price shall maintain and educate the 
 said children," "without making any charge 
 against them, or either of them:'' and, lest 
 the income of the settled property might not 
 suffice, for accomplishing this purpose, the 
 trustee is to "permit the said D. B. Price to 
 use the principal of the said property."' (This 
 certainly cannot refer to the general estate, 
 over which the trustee had no control.) 
 
 And the deed closes by a provision which 
 shows that, throughout, the widow's share 
 alone was in the mind of the parties. The 
 provision is, that, if Mrs. Price should sur- 
 vive her husband, the trustee should re-con- 
 vey her third to her, or what might remain of 
 it, unexpended. 
 
 Thus it appears, from a fair reading of the 
 deed, that the husband, so far from being en- 
 titled to charge either the principal or income 
 of the children's own shares, was bound 
 to exonerate these shares from all charge, by 
 employing the income, and, if necessary, the 
 principal of his wife's share, which was 
 settled, for their maintenance and education. 
 We think this settlement was good as be- 
 tween the parties and the trustee. The in- 
 formalities pointed out by the Commissioner 
 
 *197 
 *might possibly vitiate it as against John N. 
 Williams, the surety to the joint administra- 
 tion of D. B. Price and wife : but if it were 
 set aside, it could not benefit this surety. A 
 joint administration granted to husband and 
 wife, according to the case of Spann v. 
 Stewart, (1 Hill Eq. :V2Q.) is a grant to the 
 husband alone ; though according to Adair 
 V. Shaw, (1 Sch. & Lef. 243,) it would be dif- 
 ferent with respect to an administration in 
 the wife dum sola, and conferred by opera- 
 tion of law upon the husband, by her mar- 
 riage to him. 
 
 Where administration is granted to hus- 
 band and wife jointly, the administration is 
 that of the husband alone. The bond given 
 by I'rice and wife, to which Mr. Williams 
 became surety, was the bond of I'rice alone, 
 and Williams lent credit to him exclusively. 
 Putting the settlement out of the question, 
 Mr. Williams is entitled to go against this 
 property, only in case Price's marital right 
 has attached upon it. But the Court of Ei-- 
 rors determined, in a case lately decided in 
 Charleston, that where the wife's share was 
 never severed from the bulk of the estate (as 
 in this case) the marital right could not at- 
 tach. The Court would execute the equity 
 of the wife — and, I suppose, would, in so do- 
 ing, conform to intentions expressed in a 
 previous settlement agreed on by the par- 
 ties, though it may have proved ineffectual. 
 The Court is satisfied, however, with the 
 decree that the interest of Mrs. Price in the 
 
 SO 
 
 share of the deceased child, or children, 
 should be subjected. 
 
 We come, now, to consider how the ac- 
 count should have been taken, in regard to 
 the two-thirds of the estate belonging to the 
 children. 
 
 The only distinction we can discover be- 
 tween this case and those which generally 
 occur, is, that this estate was a planting es- 
 tate, and that the account filed by Mrs. I'rice 
 is now 17 years old. 
 
 Undoubtedly the profits of a planting es- 
 tablishment are not to be judged of, in all 
 cases, by estimates in detail of the hire of 
 the slaves and the rents of the land. The 
 
 *198 
 hire of such slaves *as are actually hired out, 
 and the rent of such lands as are actually 
 let out, nuist be accounted for according to 
 the proceeds of tlie hiring or letting. But 
 when the property is kept together, (unless 
 we have an account of its actual profits.) the 
 profits must be made out by general esti- 
 mates. And, as in Rainsford v. Rainsford, 
 Rice Eq. 343, and in Pye v. Carr, 2 Strob. 
 Eq. 105, where the increase of the property 
 itself is the result of its not having been 
 used with exclusive reference to the produc- 
 tion of profits, we must allow the fncrease 
 to stand, to a certain extent, in the place of 
 profits. 
 
 In the account before us, we think it would 
 be allowable for the Commissioner, — while 
 he may receive evidence of the probable hire 
 and rent of the particular parts of the es- 
 tate, — at the same time to receive general 
 estimates of the profits of the estate, as a 
 whole, refei'ence being had to its condition: 
 and that credits should be allowed for all 
 probable expenses of such an estate: — (ex- 
 cluding, of course, in this case, the expenses 
 of the family.) 
 
 And we think, that in such a case as this, 
 where such liberality was extended to the 
 children, by the mother and step-father, as 
 to exonerate their estates from the expenses 
 of nurture and tuition, the account should 
 be taken with great liberality towards the 
 parents. Doubtful charges against them 
 should be excluded; they should not be held 
 to a strict account; and the lowest liability 
 of which the evidence, reasonably interpret- 
 ed, is capable, should be established against 
 them. 
 
 If I understand, aright, that part of the 
 case relating to the building and rent of a 
 dwelling house: there should be some reform 
 of the report in that subject. I understand 
 the administrators have been charged for the 
 rent of the premises, as improved by them: 
 while, at the same time, they are denied 
 credit for the value of the improvements. 
 I think rent is not allowable for premises 
 which the tenant has rendered capable of 
 yielding rent, if they did not yield rent be- 
 fore: and that, by parity of reasoning, the 
 tenant is not chargeable, for so much of the
 
 LEWIS V. PRICE 
 
 ►199 
 
 rent of the premises, as his improvements 
 
 *199 
 have contrihuted ♦to imuluce. At the same 
 time I am content, — in tliis case, — that the 
 tenant shonkl have credit, not for the cost of 
 the imi»rovements, hut for the value they 
 imparted to the premises. 
 
 Upon the subject of the return to tlie ordi- 
 nary, there is much difhculty. 
 
 Wliere the Commissioner is satisfied, tliat 
 the items were vonclied before the ordinary, 
 and pa.ssed by him, as cliar^res ajjaiust tlie 
 general estate, in the nature of expenses 
 thereof, I thinli lie may venture, at the end 
 of 17 years, to ref,Mrd these charges as prov- 
 ed prima facie. But it appears, on the face 
 of the return, that only part of the items 
 were vouched. Of those not vouched the 
 Commissioner should retpiire evidence; but 
 that degree of evidence should satisfy him, 
 which may be expected to be produced after 
 such a lapse of time. 
 
 I had forgotten, at the proper place, to 
 make an observation in regard to the furni- 
 ture. I do not think it was evidence of un- 
 3 Ricii.Eq.— 6 
 
 faithfulness. In these administrators, under 
 the circumstances of this case, that they did 
 not sell this proi)erty. Yet. if they thought 
 proi)er to retain it, and make use of it. tliey 
 must reproduce it in as good condition as 
 they received it. or account for the value of 
 such of it as was lost, (tr for the injury of 
 it, as the case may be. But. I do not think 
 they should be made liable, in such case as 
 this, for interest upon it. 
 
 Let the case be remanded to the Circuit 
 Court, and the report to the Commissioner, to 
 make up the accounts on the i)rinciples of 
 this decree. We do not regard the points 
 made in the 3rd and 7th grounds of appeal, 
 con<'luded in the decree. 
 
 Decree modified accordingly. 
 
 DT'XKIN and WARDLAW, CC, con- 
 curred. 
 
 DARGAX. Ch.. having been of counsel, did 
 not sit in the case. 
 Decree modified. 
 
 81
 
 CASES IN EQUITY, 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS 
 
 AT CHARLESTON, SOUTH CAROLINA— JANUARY TERM, 
 
 185L 
 
 Chancellors Present. 
 
 Hon. job JOHNSTON, 
 
 " B. F. DUNKIN, 
 
 " (J. W. DARCiAX, 
 
 " F. H. WARDLAW. 
 
 3 Rich. Eq. *20l 
 
 ♦HUGH R. 8WINTON v. GEO. W. EGLES- 
 
 TON et al., Executors of Hannah 
 
 JSwinton. 
 
 (Charleston. Jan. Term, 1851.) 
 
 [1. Parties <©=32!».] 
 
 Testatrix, who died in 184:^, bequeathed 
 "twelve shares of the dividends of" certain stock 
 to her executors "in trust to iiay over the inter- 
 est on said stock to my slave named Minda, for 
 and during her natural life," with remainder 
 over; by another clause of the will, she be- 
 queathed as follows: "I desire that all the prop- 
 erty, not specified in this my will, whatsoever, 
 howsoever and wheresoever it may be found, 
 which I now hold, or hereafter I may hold." 
 "shall go to my infant nephew, H. S., to him 
 and his heirs forever." \\. S. tiled his bill 
 against the executors and i-emaiuder-man, claim- 
 ing that the legacy to Minda. during lifi', was 
 null and void, and tliat it fell into the residue 
 to which he was entitled: Held. — That the leg- 
 acy to Minda was void under the -ith section 
 of the Act of 1841. 
 
 I Ed. Note. — For other cases, see Parties, Cent. 
 Dig. S 50; Dec. Dig. C=j:^!».| 
 
 l-J. irj7/s <®=3S.58.] 
 
 That, being void, it fell into the residue, 
 and that H. S. was entithd to it under the 
 terms of the residuary clause of the will. 
 
 [Ed. Note.— Gited in Logan v. Cassidy, 71 S. 
 G. -20'}. .-)() S. E. 7'J4. 
 
 Ftir other cases, see Wills, Cent. Dig. 5!§ 
 L'173-218:{ ; Dec. Dig. <©=>N")8.j 
 
 13. iri/7.« <g=>-_'(;7.] 
 
 That the next of kin of testatrix had no 
 such interest as required them to be made par- 
 tics to the bill. 
 
 [I'd. Note. — For other cases, see Wills. Gent. 
 Dig. SS <il5. (il7, ()18; Dec. Dig. <©=M2U7.1 
 
 14. Wilis <S=S5S.] 
 
 [A residuary bequest of personal proi)ert.v 
 "not specified in this my will" includes lapsed 
 legacies.] 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. § 2173 ; Dec. Dig. (@=>858.] 
 
 *202 
 
 ♦Before Dunkin, Gh., at Gbarlcston, June. 
 1850. 
 
 This case will be sutticiently understood 
 from the oiiiuioii delivered in the Court of 
 Appeals. 
 
 I'ope, for the appellant. 
 Simons, contra. 
 
 WAKDLAW, Gh., delivered the opinion of 
 the Court. 
 
 Hannah Swinton, the testatrix, died in 
 isi:;. Her will, dated February 27. 18;52, 
 contains the following clauses: "I give and 
 bequeath twelve sfiares of the divideiuLs of 
 my five per cent, stock of the state of South 
 Carolina, unto my executors, in trust al- 
 ways nevertheless, that they shall pay over 
 the interest on said stock to my slave named 
 -Miiula. for and during the time of her nat- 
 ural life, (|uarterly, as they shall receive the 
 same in e<iual shares; and at the death of 
 my said slave Minda, the said tiv»' per cent. 
 st(K-k and dividends of the said State, shall 
 go to the Sabbath School of the Circular 
 Church, No. one; and I charge my executors 
 to fulfil the foregoing bequest in favor of the 
 said Sabbath School, and if it should not be 
 
 ®=»For other cases see same topic aud KEY-NUMBEK in all Key-Numbered Digests aud lDUe.\e3 
 
 83
 
 ^-20: 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 incorporated tlien, I do hereby make them 
 trustees, if necessary, for that purpose ; and 
 if tlie said Sabhath School should not exist 
 at the time when the said legacy shall ac- 
 crue, then, the said stock and dividends 
 shall go to the Circular Church in Charles- 
 ton, forever." "I desire that all the prop- 
 erty, not specified in this my will, what- 
 soever, howsoever, and wheresoever it may 
 be found, which I now hold, or hereafter I 
 may hold, shall go to assist in educating 
 the children of my deceased brother, James 
 Swinton, until the youngest is twenty years 
 old, then I desire that it shall go to my in- 
 fant nephew. Hugh Ralph Swinton, to him 
 and his heirs forever ; but in the case," &c. 
 The context by the minute specification of 
 her estate, and the careful mention of all 
 persons, whom she supposed to have any 
 claim upon her bounty, manifests the pur- 
 pose of testatrix to dispose of her whole es- 
 tate, and not, as to any part of it, to die 
 intestate. 
 
 *203 
 
 *It is clear, too, from the will, that the 
 plaintiff is a favorite legatee, for, in addi- 
 tion to several immediate bequests, he takes 
 in remainder, in several instances, property 
 given to others for life. There is, in the 
 will, no other disposition of the residue, 
 except that contained in the clause above 
 recited. 
 
 The plaintiff states in his bill, that he is 
 the youngest child of James Swinton. and is 
 over the age when the residue was appoint- 
 ed to vest in him ; and he claims, that the 
 legacy in trust for the slave Minda, is null 
 and void by the 4th section of the Act of 
 1841 (11 Stat. 154.) and falls into the resi- 
 due, to which he is entitled. The sum in 
 controversy is small, consisting of the divi- 
 dends of .$1200. in the 5 per cents, of State 
 stock, for the life-time of Minda, from the 
 death of the testatrix, or the attainment of 
 twenty years by the plaintiff whichever was 
 the posterior event. 
 
 The plaintiff in his bill made no parties 
 defendants except the executors, and they, 
 in tlieir answer, operating to this extent as 
 a demurrer, objected, that all the parties 
 in interest were not parties to the suit. At 
 February Term, 1S50. Chancellor Dargan 
 made the following order: "On liearing the 
 bill and answer in this cause, it is ordered, 
 that the complainant have leave to amend 
 his bill, by adding new parties thereto, as 
 follows, to wit: the corporation of the Cir- 
 cular Church, the next of kin of the testa- 
 trix, Hannah Swinton, and Sabbath School 
 No. 1, of the Circular Church, if the same 
 should be incorporated and if not incorpo- 
 rated, the said Sabbath School shall be rep- 
 resented by the parties defendants before 
 the Court, as the trustees of the School, be- 
 ing declared such by the will, in the event 
 that the said school shall not be incorporat- 
 ed." The plaintiff finding it inconvenient to 
 84 
 
 comply with this order, as the next of kin 
 were numerous and widely dispersed, 
 brought the matter before Chancellor Dun- 
 kin, at June term, 1S50, and moved to rescind 
 so much of the former order as re<iuired 
 the next of kin of testatrix to be made par- 
 ties: and this motion was refused by the 
 Chancellor. 
 
 The appeal is from this order and this 
 refusal on the ground that the next of kin 
 of testatrix are not necessary parties in this 
 
 *204 
 *suit. The Chancellor on circuit at the last 
 term, pursued the course required by prin- 
 ciple and comity, in dismissing a motion to 
 modify the order of his predecessor, where 
 no change of circumstances demanded a 
 change of discretion. The motion was in 
 the nature of an appeal, from one to anoth- 
 er, of co-ordinate authoi'ity. But in this 
 Court, we may deal with the whole matter, 
 according to the doctrines and practice of 
 equity. The general rule, as to parties in 
 equity, is. that all persons having an In- 
 terest in the object of the suit, ought to be 
 made parties. The reasons of the rule are, 
 that the Court may completely determine 
 the rights of all persons interested, — that 
 future litigation may be prevented, — and 
 that the orders of the Court may be safely 
 executed by those upon whom they operate. 
 Departures from the general rule are some- 
 times allowed by the discretion of the Court. 
 As in a suit which affects the personal es- 
 tate, the legatees may not be necessary par- 
 ties, although having interest in the object 
 of suit, inasmuch as they are represented in 
 the person of the executor or administrator, 
 and their rights thus sufficiently protected. 
 So, where the next of kin are proper par- 
 ties, it is not indispensable that all of them 
 should be expressly brought in. for if one or 
 more of them be named as parties all may 
 attend the accounting before the master, 
 and be heard by counsel in tlie Court. (Cal- 
 vert, 11, 20, 51 ; Sp. Eq. 430.) 
 
 Whether, in this case, the next of kin of 
 testatrix have an interest in the object of 
 the suit depends upon the subordinate ques- 
 tions, whether the plaintiff is constituted, 
 by the terms of the will, general legatee of 
 the residue ; and whether the legacy in trust 
 for a slave falls into the residue. 
 
 That a gift of the residue may have a lim- 
 ited oiieration, is unquestionable, where the 
 Avords of the will and the manifest intention 
 of the testator require such construction. 
 Even general words sufficiently broad to 
 cover the whole, may be confined in their 
 operation l)y connection with other parts of 
 the will. In Attorney General v. Johnstone. 
 (Ami). 577,) Lord Camden held that, where 
 testator had expressed doubt if there would 
 be any residue, and then mentioned it as a 
 
 *205 
 small remainder of about £100, *the gift of 
 the residue did not include lapsed legacies
 
 SWINTOX V. EGLESTON 
 
 •207 
 
 aaiouiitlng to £20.000. So, in Dnver.s v. 
 Dowos. c; r. Wins.. 40.) testator gave 
 CluHnoly IIou.si' to his wife for life. <lo(liir- 
 Inj; tliat lie would (llsi»o.se of the ^joods and 
 furniture, in Cheevel.v House, after his 
 wife'.s deatli, by a eodicil to his will : and 
 then bequeathed to his wife the residue of 
 his pers<tnal estate, whatsoever, not before 
 disposed of, or reserved to be dis[>osed of 
 by liis codicil ; and afterwards made two 
 codicils without disjiosinj; of his said ;;oods 
 and furniture: Ix)rd Kln« held, that the tes- 
 tator had not given to his wife all the prop- 
 erty which he had not dispo.sed of by his 
 will, or which he niiirbt not disjiose of by 
 his ctMlicil, but expressly excepted, out of 
 the residuary bequest, the property reserved 
 to be disposed of by his codicil ; tliat the 
 >;o<xls and furniture, so expressly excepted 
 and reserved, did not pass to the wife. In 
 coninientiuK upon these two cases, in Bland 
 V. Lamb. (2 Jac. & W. 405,) Lord Eldon 
 speaks of them as decidinj;, that the w(»rds 
 emjiloyed descrilied only the actual surplus 
 of what the testators had at the dates of 
 their wills, and, while adniittiii!; that such 
 construction may he adoi)ted where the in- 
 tention is clear, discredits some of the opin- 
 ions expressed in these cases. In our own 
 case of reay & Picket v. Barber. (1 Hill Eq. 
 07.1 general words of residuary bequest were 
 restricted to particular classes of property 
 Tipon the construction of the whole instru- 
 ment. Judge .Tolinson there properly insists 
 on the fact, tliat our law distributes un- 
 d»'vised residue among the next of kin, 
 whereas in England it goes to the executor, 
 as justifying Courts, here, in following more 
 closely the intention of testators to restrict 
 the residue than the policy of England would 
 warrant. Still in that case, as in all our 
 cases on the subject, the general doctrine 
 is recognized, that the words of a residuary 
 clause operate upon all the property of the 
 testator, at the time of his death, within 
 the scope of the words. The ambulatory 
 character of a testament is not to be re- 
 strained by con.struction in doubtful cases. 
 See Garrett v. Garrett, (2 Strob. Eq. 272.) 
 correcting some expressions, aiiparently of 
 contrary tendency, in the same case, as re- 
 ported 1 Strob. 70. This general doctrine is 
 
 *206 
 ♦founded ujion such artilifial reasoning as 
 this: when one bequeaths all his jiroperty, 
 he shows that he did not mean to die in- 
 testate as to any i)art; not meaning to die 
 intestate as to what he had at the time of 
 making his will, he does not mean to die 
 intestate as to what he should have at the 
 time of bis death ; he gives property away 
 from the residuary legatee, only for the 
 sake of the particular legatei', and as against 
 all others, the residuary legatee is presumed 
 to l)e the object of testator's bounty. The 
 application of the doctrine does not deiieml 
 upon any express or particular intcniiuu of 
 
 tlie testator, for it may be well argued in 
 all cases, that a testator, having no pre- 
 .science, contemplates only the state of his 
 property existing at the date of liis will: 
 and that, l»y a gift of the residue, he means 
 only a gift of his actual jiroperty left out of 
 other dispositions. Still, the residuary lega- 
 tee takes every thing not effectually given 
 to others, of the whole property at the deatli 
 of the testator, however great may be the 
 hardsbiji of particular cases. (Bland v. 
 Lamb, 5 Mad. 412; 2 .lac. & W. 40.".; Cam- 
 bridge V. Rous. 8 Ves. 25; I-eake v. Robin- 
 son. 2 Mer. .'{02.) In the case before us. it is 
 argued, that the words, "n<it specitied in tliis, 
 my will," except from tiie gift of "all the prop- 
 erty, whatsoever, howsoever, and wheresoever 
 it may be found, which I now hold, or h«>re- 
 after I may hold," all the property in any 
 wise mentioned in the will. But these 
 words, "not specified in this my will," mean 
 no more than not bequeathed; i. e. not ef- 
 fectually be<iueatlied. They add no limita- 
 tion to the term, rest or residue wlii<li stand- 
 ing by itself strictly means, althouirb very 
 different effect is given to it. that only which 
 is not otherwi.se disposed of, or mentioned. 
 Clowes v. Clowes, Sim. 40:i, (l(i P:ng. Cli. 
 R. 404.) is an express authority. There the 
 testator had" given to two nieces for life 
 £20 and £30 a year out of the interest of 
 certain stock, and the question was, whether 
 the capital of the sums so given passed to 
 the widow, under this betpiest ; "I Itequeath 
 all my household furniture, and all my prop- 
 erty of every kind not specitied above to 
 my dear wife:" V. C. Shadwell held, that 
 testator meant by "all my property not spec- 
 
 *207 
 ified above," hiterest not *bequeathed in 
 property which lie might have before men- 
 tioned, and that the widow was entitled to 
 the capital. In Roberts v. Cooke, (Iti Ves. 
 451,) a residuary bcnjuest of personal prop- 
 ert.v. "not hereinbefitre specitically disposed 
 of," was construed to i-omiirehend la[».sed 
 legacies. The plaintiff, tlien, niu.st be con- 
 sidered general legatee of the residue. 
 
 In the tirst three sections of the Act of 
 1841. gifts and trusts, providing or intended 
 for the emancipation of slaves, are declared 
 not only to be void, but to enure to the ben- 
 efit of the next of kin : but the 4th section, 
 wliit'h is the only one that speaks of gifts to 
 slaves, says nothing alwiut the next *>f kin: 
 and while, in terms too plain for di.sputed 
 construction. It declares every beiiuest in 
 trust for flu* Ix'netit of any slave to be void, 
 it leaves the C(Mise(iuences to be determined 
 l»y the general law. If it be true that void 
 legacies fall into the residue, the plaintiff 
 is entitled to the betpiest in trust for Min- 
 da ; and this general proposition is clearly 
 settled by the cases. Lord Hard wick says, 
 in Durour v. Motteaux, (1 Ves. sen. .S21.) turn- 
 ing uiioii the nKtrtmain Act; "a will is made 
 in which several legacies, and the residue 
 
 85
 
 *207 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 of the personal estate, are given away ; one 
 of the personal legacies is void by law; the 
 Court cannot say for that reason, contrary to 
 the express will, that testator intended to die 
 intestate: for giving the residue over in- 
 cludes every thing, let it fall in by reason of 
 that legacy's being void, or lapsing, by dying 
 in the life of the testator." See Shanley v. 
 Baker, (4 Yes. 732.) In Keunell v. Abbott, 
 (4 Yes. 802,) a legacy given by a woman to 
 her supposed husband, who was not her hus- 
 band, and therefore void, was decreed to the 
 residuary legatee. In Leake v. Robinson, 
 where the legacy was void for the remoteness 
 of the limitation, Sir AVm. Grant says: "It 
 must be a very peculiar case in which there 
 can be at once a residuary clause and a par- 
 tial intestacy, unless some part of the residue 
 be ill-given. It is immaterial how it happens, 
 that any part of the property is undisposed 
 of, whether by the death of a legatee, or by 
 the remoteness and consequent illegality 
 of the bequest. Either way it is a residue: 
 i. e. something upon which no other provi- 
 
 *208 
 sion of the *will effectually operates. It 
 may in words have been before given ; but 
 if not effectually given, it is, legally speaking, 
 undisposed of, and consequently included in 
 the denomination of residue." In Bauskett v. 
 Breithaupt, (1 Rich. Eq. 471.) Chancellor 
 Harper, discussing the consequence of a lega- 
 cy void under the Bastardy Act of 17S9, says: 
 "it is hardly necessary to refer to authority 
 for a doctrine so well established, as that a 
 general residuary clause will pass every- 
 thing that is not effectually disposed: if a 
 legacy lapses, or is void, it will go to the 
 residuary legatee." 
 
 It does not seem to us, that the next of 
 kin of Hannah Swinton have any such inter- 
 est, as requires them to be parties to this 
 suit; and it is ordered and decreed that so 
 much of the order of February, 1850, as re- 
 quires them to be made parties, be rescinded. 
 
 JOHNSTON, DUNKIN and DARGAN, CC, 
 concurred. 
 
 Motion granted. 
 
 3 Rich. Eq. 208 
 HASTIE & NICHOL v. R. L. BAKER and 
 
 Wife and Others. 
 (Charleston. Jan. Term, 1851.) 
 [Husband and Wife (©=33151.] 
 
 A deed of marriage settlement provided, 
 inter alia, that the trustees should permit the 
 husband "to receive the rents, income and prof- 
 its" of the settled estate, (which was large) "for 
 the joint maintenance of himself and wife dur- 
 ing their joint lives, but not subject to his 
 debts:" during the coverture, the husband con- 
 tracted a debt for supplies furnished him for 
 the use of himself and family, and the creditor 
 filed a bill against the husband, wife and trus- 
 tees for payment of this debt out of tlie settled 
 estate, and the husband desired that it should 
 
 be so paid: Held, that the settled estate was 
 not liable; that the husband, having ample 
 means, for the joint support of himself and 
 wife, from the rents, income and profits <if the 
 estate, could not, by contracting a debt for such 
 support, subject the estate, (as to a debt due 
 by the estate) to the payment thereof. (a) 
 
 [Ed. Note. — For other cases, see Husband and 
 Wife, Cent. Dig. § 586; Dec. Dig. <©=:=151.] 
 
 *209 
 
 *Before Dargan, Ch., at Charleston, Feb- 
 ruary, 1850. 
 
 The decree of his Honor, the Circuit Chan- 
 cellor, is as follows. 
 
 The deed of marriage settlement between 
 Robert L. Baker and Isabella, his wife, con- 
 tained a provision, by which the trustees 
 were to permit the said R. L. Baker to re- 
 ceive the rents and i)r()fits of the whole estate 
 for the joint use and maintenance of himself 
 and the said Isabella, during their joint and 
 natural lives, not subject, however, to the 
 debts, contracts, or engagements of the said 
 R. L. Baker. The deed proceeded to provide, 
 in this connection, that if any creditor of the 
 said R. L. Baker should attempt to charge 
 the said income or profits with any debt of 
 the said R. L. Baker, then, from the issuing 
 of any process so to charge the same, the 
 estate was to be held in trust, for the sole 
 and separate use of the said Isabella. The 
 interest of R. L. Baker in thtf estate, under 
 the operation of these provisions, was a 
 shifting use. If any creditor has, or shall at- 
 tempt to make the income or profits liable 
 for the debt of R. L, Baker, the use has, or 
 will, according to the fact, be transferred, 
 and the said Baker be divested of all right, 
 thenceforward, in the profits and income of 
 the estate. This shifting of the use however^ 
 would be prospective, and would not operate 
 to divest the rights of Baker in any arrears 
 of profits or past income, that might be in 
 the hands of the trustees. And his creditors 
 would be entitled to be subrogated to all his 
 rights, (whatever they nught be) iu the 
 profits and income of the trust estate. But 
 it was intimated on the trial, that such an 
 account in this instance would be fruitless, 
 and, therefore, that remedy was not sought. 
 
 The complainants, however, deny that they 
 have sought in this bill, to make the profits 
 
 (a) The reporter believes that he has stated 
 the only point which was adjudged by the Court 
 of Appeals. It would seem, from the ground 
 of appeal, that the only question taken before 
 that Court was, as to the liability of the settled 
 estate for the demand treated of in the decree 
 as No. 2; — from the fa 'ts stated in the circuit 
 
 *209 
 decree, *tliat no question eould have arisen, 
 as to the liability of the estate for debts con- 
 tracted by Mr.s. Baker; and, as the decision was 
 that the estate was not liable at all for that de- 
 maud of the plaintiffs, that no question could 
 have been considered, as to the validity of 
 Mrs. Baker's appointment as against the plain- 
 tiffs. 
 
 i^'or a full understanding of the case, reference' 
 must be had to the case of Roux v. Chaplin, (1 
 Strob. Eq. 129.) 
 
 SO 
 
 (g;:;:}For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 IIASTIE A NICIIOL v. BAKER 
 
 and incoiii," of tlic vstuto of Mrs. I5:ik,.r Ha- 
 l)lc' for his (|,.ht, I. lit conf.MKl that tlu«v liavf 
 
 ♦210 
 s«»u«lit t(. *iiiak.' tliH oorpu.s of tlio estiit.> sul)- 
 ject to its own lial)iliti»>s ; to dchts of IJaktT. 
 it is true, l.ut. ncvcrtholess. acconlin;; to 
 their shewing and position, debts wiiich. by 
 tlie e<iuities of tlie ease, attaeh upon tlie cor- 
 pus as well as the income of the estate. 
 This is the ground upon which the conijilain- 
 aiits have filed their hill and rest their claim 
 lor relief. That the corpus c.uld never he 
 made subject to the i)a.vment of IJaker's debts 
 as such, none will deny. And it is quite 
 clear, that an attempt by a creditor to make 
 the income liable, would eo instanti, shift the 
 u-se, so as to deprive Baker and his cn-dltoi-s 
 in any of the after accruing income and prof- 
 its. The only sround, theref(u-e, on which 
 the complainants could lu-etend to ivst their 
 claim, would be the assumed liai)ility of Mrs 
 I?aker hers(>lf. or some e<iuity attaching 
 through her upon her separate' estate 
 
 There are three debts f(.r the recoverv of 
 which the complainants have filed their bill 
 They are pai-ticularly d,.scribed in the re- 
 port of the .Master, and referred to as Xo 1 
 No. 2, and Xo. 3. Xo. 1 is a debt contracted 
 >y Mrs. Baker with the complainants before 
 her marriage, for goods, wares, and merchan- 
 (hse from their store. There can he no doubt 
 but that the trust estate is liable for this 
 debt Xot only is th,^ income but the corpus 
 Itself is liable. ' 
 
 The defendants, Thomas B. Chaplin and 
 Saxby Chaplin, contend, that so much of the 
 trust estate as has been conveved to their 
 use, IS not liable for any of the d.-bts which 
 the complainants set up in their bill be- 
 cau.se they say, they are purchasers' for 
 valuable consideration, being within the con- 
 sideratnm of the marriage contract I dis- 
 sent trom this as a legal proposition. Thev 
 are, it is true, the issue of the wife bv a for- 
 mer marriage. But the only persons who are 
 withm the marriage consideration, so as to 
 Have a right to enforce the contract as pur- 
 chasers for valuable c.nsideration, are the 
 lu.s-^.and. the wife, and their issue. Osgood 
 V. Strode, (L' V. Wms. Ho). All othe.v pro- 
 vided for. either directly or by contingem-v 
 =<'v volunteers, and th.Mr claims are void 
 as against the demands of the pre-e.xi.stin- 
 ^•■vlitors of the party settling the propei'; ^ 
 *211 
 *Though such provisions are yohintarv 
 they are not frandulent in the main, aiw' 
 where they are made bona fide, thev would 
 I'e ent..rced against subsecpient purcha.sers 
 
 f-V'".r;i^''"^ i" Jenkins v. Keymis, (1 Levinz! 
 l.)0. LMi). 
 
 The conveyances by .Mrs. Baker in favor of 
 the Chaplins, are voluntary, and are invalid 
 against the claims of her cre.litors, that ex- 
 isted antecedently to the execution of the 
 '"arnage contract. Such creditors have a 
 general lieu upon the whole estate, and there 
 
 (IS no right to restrict them in the recovery 
 I of satisfaction to any particular portion of 
 the estate, at the option of Mrs. Baker, or 
 I of any other of the parties interested. But 
 111 <.rder not to disturb, unnece.s.sarilv. any 
 of the family arrangements, and with tlie view 
 I of resi.ecting the i igbts of all parties, .so far 
 as it can l)e done con.sistentlv with the para- 
 uioiint right of the creditors, I shall direct 
 that this debt of the complainants shall be 
 satisfied out of the .sale of the negroes as- 
 signed for that purpose, by the deed of June, 
 1N45, which it seems has never been carried' 
 into effect. 
 
 The complainant's remedy as to this del)t 
 (Xo. 1) is not to be limited to that proiierty. 
 if. by any misadventure, it should not be 
 forthcoming. 
 
 The next claim of the complainants which 
 I will consider, is that which is described 
 and referral to in the Masters report as Xo. 
 3. It arose in this way:— it was a debt of 
 Thomas B. Chaplin, and was secured bv a 
 sealed note, and Mrs. Baker was the surety. 
 Suit was brought upon the note in the Court 
 of Common Pleas against Thomas B. Chap- 
 liu, and judgment recovered and entered uj) 
 thereon. In th.> estimate of the amount due 
 upon this note, a mistake occurred, and the 
 judgment was entered up and execution was 
 lodged for less than the amount actuallv due 
 upon the note. The property owned by 
 Thomas B. Chaplin was sold bv the .sheriff 
 of Beaufort district, to satisfy this and other 
 executions against him. The amount due up- 
 on the face of the execution was .satisfied 
 by the .sale, and .some portion of the proceeds 
 of the sale was applied to junior executions 
 and the whoh^ amount of this debt would 
 
 *212 
 *have l>een satisfie.l by the sale of the prop- 
 (M-ty of the principal, but for the mistake 
 which has been alluded to. The amount re- 
 "laming due upon the note, which was not 
 carried into the execution is. according to 
 the M;ister's n>port, and up to the date there- 
 of. $100.32. The failure to collect the wh.)]e 
 •lebt from the principal, has. therefore, evi- 
 di'Utly arisen from the mistake and laches 
 of the creditor, and I think that this would 
 have the effect of disch.irging the surety 
 
 There is another objection to this ciaim 
 The complainants have come to this court to 
 correct the mistakes of the court of law in 
 entering up its judixments and issuing its exe- 
 cutions. It is the province of the court of 
 law. as well as the court of equity, to cor- 
 rect its own errors. And the jurisiliction of 
 the court of law is most ami)le for this pur- 
 pose. Tli(> complainants should have made 
 application to the Court where the judgment 
 was rendered, to reform its errors, and to 
 correct the execution. 
 
 The judgment rendered by the court of 
 law is fully satisfied. And that, as the case 
 stands, is a .satisfaction of the claim The 
 complainant has uo right to open the judg- 
 
 87
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 nieut of the court of law for a re-hearing he- 
 fore this Court, and to obtain further re- 
 dress than that which has been afforded by 
 the tribunal where it was originally heard. 
 
 For these reasons, my judgment would 
 have been against tlie allowance of this 
 claim. But Mrs. Baker, though she objected 
 in her answer to the payment of the balance 
 due upon this debt, on this trial waived all 
 objections, and consented that it should be 
 paid out of the trust property, provided it 
 was paid out of the negroes assigned for the 
 payment of debts by the deed of June, 1845. 
 As she has an unlimited power of disposing 
 of the trust property, and consents that a 
 decree shall be entered against her for the 
 balance of this debt, on the condition above 
 named, the Court is indisposed to interpose 
 an objection which she has waived. It is ac- 
 cordingly so ordered and decreed. 
 
 I come now to the consideration of the 
 debt or claim of the complainants, which is 
 
 *213 
 referred to and described as Xo. 2, in *the 
 Master's report. Its present form is a judg- 
 ment against R. L. Baker. The cause of ac- 
 tion is a store account against R. L. Baker, 
 due the complainants, and run vip against 
 Baker after the marriage. It does not seem 
 that any credit was given to Mrs. Baker or 
 the trustees. The complainants charge, that 
 the account was for supplies furnished Baker 
 for the use of himself and family. Mrs. Bak- 
 er, in her answer, does not deny this allega- 
 tion, and Baker, in his answer, admits its 
 truth. I shall consider the question arising 
 on this claim, as if the staiements of the 
 bill in relation thereto were true and estab- 
 lished by the evidence. 
 
 A strong objection which strikes my mind 
 in limine, against the admission of the claim, 
 is founded upon the provisions of tlie deed 
 of marriage settlement. By these. Baker 
 was to be permitted to receive the whole 
 profits and income of the estate for the joint 
 support of himself and wife during their 
 joint lives. The estate was very large, and 
 the income was certainly sufficient to afford 
 a proper maintenance to Mrs. Baker. And if 
 he, misapplying the income and profits, in- 
 stead of appropriating them for her support, 
 chose to contract debts in his own name, and 
 on his personal liability, for her support, I 
 do not perceive any imaginable ground of 
 equity by which to charge her separate estate 
 with such debts. If A. places funds in the 
 hands of B. for certain specified purposes, 
 to purchase family supplies for example, and 
 B. appropriating the funds to his own use, 
 buys the supplies in his own name and on his 
 qwn credit, there is no legal or equitable 
 obligation on A to pay for the same. This 
 is precisely the case here ; Mrs. Baker has 
 supplied her liusband with the most ample 
 means of furnishing her with supplies for 
 her support. He, or the trustees, or both 
 together, have done one of two things; they 
 
 88 
 
 have either furnished supplies in an extrava- 
 gant manner, and beyond what the income 
 of the estate would warrant, or the funds 
 dedicated to this purpose have been misap- 
 plied. In neither case is there any equity 
 against the wife's separate estate, to pay 
 a debt contracted by the husband in his own 
 name for the support of the family. 
 *214 
 
 *If it was the trustees who misapplied the 
 income, it was equallj' the husband's laches 
 and misapplication, for lie had the riglit to 
 receive and control the whole income. It 
 does not appear that Mrs. Baker had any 
 knowledge of the fact, that the supplies in 
 question were furnishe.l by the comjilainants 
 on a credit. For all that appears, she may 
 have supposed that the current expenses of 
 the family were defrayed out of the current 
 income of the estate. 
 
 But I will go farther, and say, that supi)os- 
 ing this debt to have been contracted personal- 
 ly by Mrs. Baker, in her own name, on her 
 own credit, and for her own use, still I tliink 
 that the complainants would have no right to 
 enfcn-ce it against her separate estate. There 
 is an essential difference between the law 
 of South Carolina and that of England, iu 
 regard to the power which a married woman 
 possesses over property secured to her sepa- 
 rate use. The general rule in both countries, 
 is, that a married woman is incapable of 
 binding herself by her contracts. In a Court 
 of common law jurisdiction, her legal exist- 
 ence is considered to be so blended with that 
 of her husband, as to place her under the 
 most perfect disability of entering into con- 
 tracts. Such contracts are null and void, 
 though the wife be living apart from the hus- 
 band, and in the enjoyment of a separate es- 
 tate. This is the doctrine of the conunon 
 law. It was shaken by the decision in Cor- 
 bett V. Poelnitz, (1 T. R. 5) ; but it was re- 
 affirmed and re-established in all its pristine 
 vigour in Marshall v. Rutton, (8 T. R. 545). 
 Such a thing as a judgment or decree in a 
 court of law or equity, against a married 
 woman, founded upon her contracts made 
 during coverture, to operate against her in 
 personam, is unknown to the law of England 
 and of South Carolina. There has been some 
 modification of the strict rule of the common 
 law, so far as to make valid certain acts 
 of the wife, in reference to her separate es- 
 tate. In regard to her power of disposing of 
 her separate property, she is, in England, 
 considered as a feme sole, and she is .only 
 restricted in the exercise of the jus dis])0- 
 nendi by the limitations expressed or implied 
 in the deed or will by which the separate 
 
 *215 
 *estate is created. She may sell it as her 
 interest prompts, or her affection or fancy 
 dictate. It is now settled, that she may con- 
 vey it to her husband, or assign it for the 
 payment of his debts. She may encumber it 
 with her own debts, and, by her contract.
 
 JiAsrih A M( iioj. V. j;aki:r 
 
 *2\: 
 
 Rive a specific lien upon it. Such a contract, 
 however, creates no personal oldi^ration on 
 the wife, but only affects her se|)arate es- 
 tate. It cannot strictly be considered a con- 
 tract, hut rather the execution of a power, 
 and depends for its validity upon the source 
 whence the power is derived. Where there 
 is no restriction upon the exercise of the 
 power, the English law implies all these pro- 
 prietary rights as bel(»nging to a married 
 woman in reference to her seiiarate estate, 
 from the mere fact of its having b«'en given 
 to her sole and separate use. 
 
 Rut the law, as it has been expounded in 
 South Carolina, is essentially different in 
 regard to her power of disposing of her sepa- 
 rate estate. Here the jus dispoiiendi is not 
 imiilied from the fact that the estate has 
 been given for her sole and separate use. 
 Her power of alienation, or creating encum- 
 brances, rests solely on the reservations to 
 that effect in the deed or will, and they are 
 A'alid or invalid, accordingly as the instru- 
 ment under which she enjoys the estate al- 
 lows .such an exercise of power and control. 
 Ewing v. Smith, (3 Des. 417 \'j Am. Dec. 
 5.">7|); Frasier's Trustees v. Hall and others. 
 (1 McC. Eq. 275); Clark v. Makenna and 
 wife, (Cheves Eq. ICC}). To borrow an il- 
 lustration from natural science, such con- 
 veyances by a feme covert, are but develoi)- 
 uu'nts (from a rudimentary .state) of the pro- 
 visions of the original deed ; and they are so 
 far identified that they stand or fall accord- 
 ingly as they may or may not be a legiti- 
 mate growth fi-om the germinal power. And 
 to render the appointment of a married wo- 
 man valid in South Carolina, not only must 
 the power be reserved, but the form which is 
 prescribed must be pursued in its execution. 
 Hy the terms of the marriage .setthMuent, 
 Mrs. Baker possessed very large, though not 
 unlimited, powers of disposing of the whole 
 tru.st estate. Her powers were without limit, 
 as to the objects for which she might make 
 
 *216 
 the disposition, but restricted ♦as to the 
 form. Even as to the form, her powers were 
 very large. She had the right to dispose of 
 it by will. But inter vivos, she could only 
 dispose of it by a deed or instrument in writ- 
 ing, executed in the presence of two witness- 
 es. By an instrument executed after this 
 form, I have no doubt but that she may have 
 given a specific lien by way of mortgage, or 
 charged the trust estate in favor of any cred- 
 itor she miirht owe. The deeds of Feliruary, 
 1M4, and .lune, 1845, were obligatory upon 
 her, and would be enforced. But there was 
 no i»rovision in the deed of marriage settle- 
 ment, that either the corpus or the income 
 should be subject to the payment of her 
 debts, so as to bring the case wit bin the i)rin- 
 oii)lo of the case of Clark v. Makenna, (Chev 
 Eq. im). 
 
 Even in England, this claim would not be 
 sustained, though the debt had been contract- 
 
 ed by Mrs. Baker. In conformity with the 
 doctrine of the wife's disability to bind lier- 
 .self by her contracts, the Court of Chancery 
 there acts upon the principle that tlie gener- 
 al personal contracts of the wife do not affect 
 her separate estate. She may alien and en- 
 cumber at pleasure, and that without a pow- 
 er re.served for tlie.se puiposes, as we have 
 seen. But the intention to alien and encum- 
 ber mu.st be manifest. When she encumbers, 
 or gives specific liens, it must be by con- 
 tract expres.sed or implied. If she contracts 
 debts, and does no act indicating an intention 
 to charge the sei)arate estate specifically 
 with the payment of them, the Court of 
 Eiiuity refuses to inforce their payment out 
 of the trust estate ; Duke of Bolton v. Wil- 
 liams, (2 Ves. Jr. l.^S) ; Jones v. Harris, (9 
 Ves. 49S); Stuart v. Kirkwall, (3 Madd. 387; 
 3 do. 94; 3 do. 418). 
 
 In ^lagwood & I'atter.son v. Johnston and 
 others, (1 Hill Eq. 2.32.) it is said, that the 
 equity on which a creditor comes into this 
 Court to render a trust estate liable to the 
 payment of his debt, is this, that he has 
 advanced his money or given credit to effect 
 the objects of the trust at his own expen.se, 
 and having accomplished the objects of the 
 trust at his own expense, he has a right t<» 
 be put in the place of the cestui que tru.st, 
 or be re-imbursed out of the trust fund. 
 *217 
 *If, by any misfortune affecting the income 
 of the estate, Mrs. Baker had been deprived 
 of the means of a comfortable supinnt, and 
 the complainants had furnished her with 
 nece.ssary supi)lies on the credit of the trust 
 estate, the case of the complainants might 
 have been sustained, on the doctrine laid 
 down in the case last citied. But the case 
 is entirely different. Tlie exigency did not 
 exi.st. The means of support were ample. — 
 They were placed at the disposal of the hus- 
 band for the support of his wife. And he. 
 misapplying the fund.s, obtained the sup- 
 plies on his personal contract and credit. 
 There is no equity in favor of this demand 
 of the complainants, and as to it, their bill 
 must be dismis.sed. 
 
 It is ordered and decrei>d, that the com- 
 plainants recover and have satisfaction for 
 their debt described as No. 1, in the Master's 
 re] tort. It is also ordered and decreed, that 
 this debt have a lien on the whole tru.st estate 
 not already alienated for the payment of 
 debts, or for valuable consideration ; that 
 the negroes conveyed in the deed of June, 
 1S45, be primarily liable for the payment of 
 this debt; that the Master sell so many of 
 .said negroes as will be suHicient to pay this 
 debt, as also that described as No. 3 in the 
 Master's report, and the costs of this suit. 
 That the sale be for cash, and that the Mas- 
 ter pay over the amount due to the complain- 
 ants, and the cf)sts, to the respective parties 
 entitled to the .same. 
 
 Defendant, Baker, appealed, and insisted 
 
 89
 
 '-217 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 that the debts contracted by Mrs. Baker, 
 particularly during the time that she was 
 separated from him, ought to be paid out of 
 the settled estate, and that the appointment 
 of Mrs. Baker, so far as it went to defeat 
 the rights of those creditors, should be set 
 aside. And he craved relief from personal 
 liability for those debts which were thus 
 contracted to his injury. 
 
 Petigru & King, for Baker. 
 
 Martin, for creditors. 
 
 Treville, for Mrs. Baker and family. 
 
 PER CURIAM. This Court concurs in the 
 *218 
 decree of the Chau*cellor: and it is ordered 
 that the same be atfirmed, and the appeal 
 dismissed. 
 
 JOiHiVSTON, iDUNKIN, DARGAN 
 WARDLAW, CC, concurring. 
 Appeal dismissed. 
 
 and 
 
 3 Rich. Eq. 218 
 
 LOFTUS C. CLIFFORD and Wife v. J. 
 HARLESTON READ. 
 
 (Charleston. Jan. Term, 1851.) 
 
 [Execution €=26.5.] 
 
 Defendant purchased at sheriff's sale, the 
 estate of tenant for life in certain slaves: ten- 
 ant for life died in July, and defendant de- 
 livered the slaves to the remainderman in De- 
 cember: Held, that defendant was hable to 
 account to the remainderman, for the hire of 
 the slaves, from the death of tenant for life, 
 untU they were delivered to the remainder-man. 
 [Ed. Note. — For other cases, see Life Estates, 
 Cent. Dig. § 53; Execution. Dec. Dig. (©=5265.] 
 
 Dunkin and Dargan, CC, thought the case 
 within the provision of the last clause of the 
 2od section of the Act of 1789 ;— Johnston and 
 Wardlaw, CC, that it stood as at the common 
 law. 
 
 Before Dargan, Ch., at Charleston, Febru- 
 ary, 1850. 
 
 Dargan, Ch. By a deed of marriage settle- 
 ment, bearing date 15 April, 1818, between 
 Samuel Colleton Graves, and Susan McPher- 
 son, the latter conveyed to trustees, certain 
 lands and negroes, in trust for the use of 
 the said Samuel Colleton Graves, and Susan, 
 his intended wife, during their joint lives ; 
 remainder to the use of the survivor ; re- 
 mainder to the use of the issue of the mar- 
 riage. The marriage was duly solemnized, 
 and the complainant, Caroline M. Clifford, 
 was, at the death of her last surviving par- 
 ent, the only surviving issue of the marriage. 
 Susan McPherson, afterwards Susan Graves, 
 survived her first husband, the said Samuel 
 Colleton Graves, and afterwards intermar- 
 ried with Nathaniel G. Cleary. The life 
 estate of Mrs. Cleary, in the settled property, 
 was liable, and sold for the debts of Cleary, 
 and the defendant, J. Harleston Read, be- 
 came the purchaser of a portion of the ne- 
 
 groes at sheriff's sale, in the life-time of Mrs, 
 Cleary. He exhibits with the answer a 
 schedule of the said negroes, (which he pur- 
 
 *219 
 chased and *became possessed of, in April, 
 1840,) and also of those that remained in 
 December, 1848, when these latter were de- 
 livered up to the complainants as remainder- 
 men. 
 
 Mrs. Cleary survived her husband, and on 
 the 19th day of July, 1848. she departed this 
 life, when the right of :Mrs. Clifford to the 
 possession accrued, (as the only person enti- 
 tled in remainder,) according to the terms 
 of the deed of marriage settlement. Mr. and 
 Mrs. Clifford, the complainants, have also 
 entered into a marriage contract, by which 
 all her estate, including her interest in the 
 property embraced in the marriage settlement 
 of her parents, was conveyed to certain trus- 
 tees, in tru.st, inter alia, for the joint use of 
 the complainants during their joint lives, 
 etc. Why the trustees have not been made 
 parties to a bill for an account of the trust 
 property, I am unable to perceive. Nor do 
 I see how the complainants could have been 
 allowed to proceed with their case, had the 
 defendant taken the objection. If, however, 
 the trustees would be entitled to recover on 
 the demands now sought to be enforced. It 
 would have been only for the purpose of pay- 
 ing over the amount recovered to the com- 
 plainants for their joint use ; and as the de- 
 fendant has not thought proper to object, 
 on the ground that the trustees have not 
 been made parties, I will proceed to consider 
 the case on its merits. 
 
 The negroes that were in the possession 
 of the defendant, were duly delivered up by 
 him in the December succeeding the death of 
 Mrs. Cleary, the life tenant, who died on 
 the 18th day of July, 1848. And this bill is 
 brought for an account of the hire and profits 
 of the said negroes, during the time that 
 intervened between the death of Mrs. Cleary, 
 and the time when they were surrendered to 
 the persons entitled in remainder. The de- 
 fendant contends, that as Mrs. Cleai-y died 
 after the 1st of March, he, as the owner of 
 the life estate, is exempt irom liability for 
 this account, by virtue of the provisions of 
 the Act of 1789. (P. L. 494 ; 5 Stat. 111.) 
 
 At common law, the right of the remainder- 
 man to the possession and enjoyment ac- 
 crued, eo instanti, upon the death of the 
 tenant for life; and such still is the rule 
 
 *220 
 which must prevail, *except so far as this 
 rule is modified or disturbed by the provi- 
 sions of the Act. To that Act, as in deroga- 
 tion of the rights of property, I am disposed 
 to give a rigid construction, and not to ex- 
 tend its operation beyond the cases embraced 
 within its provisions, and which may fairly 
 be supposed to have been contemplated by the 
 Legislature. 
 
 90 
 
 ®:5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 CLIFFORD V. READ 
 
 Tlu' first class of casos provided for by the 
 <hiusc'. is entirely different from the present. 
 It eonteniphites a case where the owner of 
 the life estate himself dies, and not where, 
 as in this case, by an assignment and trans- 
 fer of the life estate, the owner of that life 
 interest becomes a tenant per autre vie. 
 Where a person shall die after the 1st day 
 of March, the slaves of which he or she was 
 liusscss.'d, whether held for life or absolutely, 
 and who were employed in making a crop, 
 shall be continued on the lands that were in 
 the occupation of the deceased, until the crop 
 is rinished, and then delivered to those who 
 liave a right to them, etc. The Act proceeds 
 to declare that the crops, the product of the 
 lal)our of such slaves, shall be assets in the 
 liands of the executors, or administrators, 
 subject to debts, legacies, and distriltution. 
 It means, by a necessary imi)lication, the 
 debts, legacies, and distribution of the estate 
 of the decedent, the tenant for life. Here is 
 a prolongation of the life estate beyond its 
 natural period, and a substantial value added 
 to it beyond that given by the will or deed 
 which creates it. And to the same extent it 
 is in derogation of the rights of the remain- 
 der-man. And I should doubt the constitu- 
 tiiinality of this provision of the Act. in 
 reference to estates in i-emainder that existed 
 and were vested interests at the ratification 
 of the Act. In regard to such estates, would 
 it not have been a violation of the rights of 
 property, and a taking from one person his 
 estate, and giving it to another; and that 
 too without any compensation'.' But in re- 
 gard to estates of this character, created 
 since the pas.sage of the Act, that objection 
 does not apply, for it would be consistent 
 even for the Legislature to declare that there 
 .shall thereafter be no estates in remainder, 
 and that the tenant for life shall in all cases 
 be entitled to the fee. The Legislature has 
 
 *221 
 
 not so declared, and *of course never will; 
 but it has declared, that under certain cir- 
 cumstances, an estate for life in slaves shall 
 extend beyond the duration of that life, upon 
 which it was made to depend by the instru- 
 ment which creates it. The object of the Act 
 was to promote the agricultural interests, 
 and the mischief to be remedied was the 
 withdrawal of slaves engaged in agricultural 
 labours, from the possession of the executors 
 or administrators of the deceased tenant for 
 life, after the plans of the year had l)een 
 definitely fonued, and the crops in the course 
 of cultivation. It is easy to conceive of the 
 injury that would result to individuals, and 
 through them to the community at large, by 
 such sudden changes in the possession and 
 iontrol of property, situated as in cases con- 
 templated by the Act. The purpose might 
 have been more justly effected, by giving com- 
 pensation to the remainder-men, as in an- 
 ocher class of cases provided for by the same 
 
 Act. But in the case of a deceased life- 
 tenant, the law gives no compensation to the 
 ren)ainder-man. This is the case of Leverett 
 V. Leverett, (2 McCord Kii. 84,) and Ilerbe- 
 mont V. Percival. (1 McM. ~j9.) The first of 
 these cases has btH'u questioned. If one of 
 these is que.stionaiile, the other is equally so; 
 i for they are precisely the same. Each of 
 I them is a case where the tenant for life died 
 in posseiision of the slaves, and the slaves 
 j were enq)loyed in agricultural labours. It 
 .seems to me that it would ite difficult to adopt 
 any other construction of this part of the 
 ' Act, than that which our Courts have given 
 in the cases cited. The language of the Act 
 ! Is, in my judgment, une<|uivocal. See also 
 j the case of Freeman v. Tomkins, (1 Strob. Eq. 
 53.) 
 
 I The case of the defendant, as I have al- 
 
 i ready remarked, does not come within the 
 
 I provisions of that part of the clause which 
 
 I have been discussing. But, if it comes un- 
 
 [ der the operation of the Act at all, it comes 
 
 under the following member of the clause: 
 
 "And if any person shall rent or hire lands 
 
 ! or slaves of a tenant for life, and such ten- 
 
 , ant for life dies; the person hiring .such 
 
 I lands or slaves shall not be dispossessed 
 
 until the crop of that year is fini-shed, he or 
 
 , she securing the rent or hire when due." 
 
 I *222 
 
 j *It perhaps may admit of considerable 
 \ doubt, whether the case of the defendant 
 ' comes even within this provision of the Act. 
 ! He did not hire the slaves from the tenant 
 , for life; nor was the hire due and outstand- 
 ing, but he purchased the whole liie interest, 
 in the year 1S40. at sheriff's sale, and the 
 consideration was paid in cash. The dispos- 
 .session of the tenant for life was involuntary. 
 I The Act seems to contemplate a hiring by the 
 tenant for life, and a case where the hire 
 is still unpaid. The possession is to be ex- 
 tended on the condition, that tiie hire is to be 
 secured by the person who has the posses- 
 sion. Whereas, if the hire has already Ix^en 
 paid to the tenant for life, or he has had 
 the benefit of it, his estate might be insolvent, 
 and be unable to make good the damages, 
 which the inroad of the Act makes upon the 
 rights of the remainder-man. The case cer- 
 ptainly does not fall within the words of the 
 Act, according to their ordinary acceptation. 
 ; It, however, comes witliin the mischief in- 
 j tended to Ik' remedied ; and a sale by the 
 sheriff of the estate of the life-tenant, may 
 be considered a sale by the life-tenant him- 
 .self: and an assignment of the whole re- 
 I maining term may be considered a hiring. 
 j And if the consideration be paid in advance 
 i for a term beyond the duration of the life 
 I estate, the party in possession may be requir- 
 ed to secure so unich of the hire of that year, 
 when the life estate determint>s. as may be 
 due to the remainder-man. I shall therefore 
 consider the case as embraced within that 
 provision of the Act last quoted. 
 
 91
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 Considering the case in this point of view, 
 I think it clear, that the defendant is liable 
 to account for the hire of the negroes, from 
 the ISth of July, 1848, when the tenant for 
 life, Mrs. Cleary, died, to the day in Decem- 
 ber following, when they were delivered up to 
 the remainder-man. I shall not construe the 
 Act as abridging the legal rights of the re- 
 mainder-man, further than I am bound to do 
 by the clear import of its language. I shall 
 not presume that the law intended to deny 
 him the possession of his estate, after the 
 accrual of his rights, without just compen- 
 sation. More particularly am I constrained 
 to take this view, when I reflect that the 
 
 *223 
 
 policy intended to be subserved by *the Act, 
 can have its full operation, without the in- 
 fliction of this glaring injustice. He who 
 holds the life estate, may be relieved from 
 the injury arising fi-om the .sudden and un- 
 foreseen termination of his possession, and 
 the consequent loss or diminution of his 
 crops, while in the course of cultivation and 
 gathering, consistently with a just compensa- 
 tion to the remainder-man for the abridge- 
 ment of his right of possession. If the plain 
 import of this part of the Act was, (as it is 
 in the preceding,) that there should be no 
 compensation to the remainder-man for the 
 abridgement of his rights, as a judicial mag- 
 istrate I would of course have no alternative 
 but to enforce what the Legislature had en- 
 acted. But the phraseology of these provi- 
 sions is essentially different. In the latter, 
 it Is declared that the person who hires 
 slaves from the tenant for life, "shall not be 
 dispossessed until the crop of that year be 
 finished, he or she securing the rent or hire 
 when due." 
 
 The securing the hire is the condition on 
 which the possession is to be prolonged be- 
 yond the termination of the life estate. To 
 whom is the hire to be secured? Not to the 
 original life tenant, upon whose life the 
 estate depends ; for she has already parted 
 with her entire interest for the current j-ear. 
 Is it to be secured to the person who is in 
 the possession, who has hired or purchased 
 from the life tenant, and who is still living? 
 He is the very party who is to give the se- 
 curity for the hire, and therefore the provi- 
 sions cannot have been intended for his 
 benefit. The ciuestion is between him and 
 the remainder-man. For whose benefit then 
 is the hire to be secured? As it cannot pos- 
 sibly be for the benefit of the party who is 
 required to secure the hire, it follows neces- 
 sarily, that he must owe it to some other 
 person ; either to the original tenant for life, 
 under whom he holds, or to the remainder- 
 man. It cannot be to the original tenant for 
 life, (Mrs. Cleary in this instance,) for she 
 had long before disposed of all her estate in 
 the slaves, and at the time of her death did 
 not have the possession. Besides all this; 
 92 
 
 considering her as having hired the slaves 
 to the defendant during the current year, 
 (in which she died,) and the hire to have 
 
 *224 
 been outstanding and *due, when she hirefl 
 them, it was by a contract which would still 
 be of force after her death, and her execu- 
 tors or administrators would have no right 
 to modify that contract, or to call upon the 
 hirer to give securit.v, when the original con- 
 tract of hiring did not impose that condition. 
 The law would not, and could not, interpose 
 for the purpose of giving to the contracts of 
 deceased persons, a greater efficiency in the 
 way of securing their fulfilment or payment, 
 than they had stipulated for in their lives. 
 The onlj^ alternative construction of this part 
 of the Act is, to suppose that it means to 
 .secure to the remainder-man his fair propor- 
 tion of the hire, during the year in which 
 the tenant for life dies, and the remainder 
 falls in. This, I think, is the plain, and in- 
 deed I may say necessary, implication of the 
 words of the Act. And such is the judgment 
 of the Court. 
 
 It is ordered and decreed, that the defend- 
 ant do account to the complainants for the 
 hire of the negroes, embraced in the marriage 
 settlement deed of Samuel C. Graves, and 
 Susan, his wife, and described in the sched- 
 ule, from the death of the said Susan, on 
 the 18th July, 1848, to the time when he 
 delivered them to the complainants or their 
 trustees. It is ordered that it be referred 
 to one of the Masters, to take the account. 
 
 The defendant appealed, on the following 
 grounds, viz: 
 
 1. That his Honor, the Chancellor, erred 
 in ordering an account to be taken of the 
 hix'e of the negro slaves purchased by defend- 
 ant, at the sheriff's sale, as the life estate 
 of Mrs. Cleary, from her death, on ISth .July, 
 1S48, until delivered up by defendant. 
 
 2. That the Chancellor erred in decreeing 
 that the said negro slaves did not come un- 
 der the provisions of the Act of 1789, in such 
 manner as to entitle the purchaser of the 
 life estate to hold them free from wages 
 until the end of the year. 
 
 3. That the Chancellor erred in decreeing 
 the complainants to be entitled to wages for 
 the said negroes, from the death of the ten- 
 ant for life, until delivered up by defendant, 
 inasmuch as the said negro slaves were field 
 negroes, engaged in the cultivation of the 
 crop, at the time of the death of the tenant 
 
 *225 
 for life, *and as such should have been de- 
 creed to the purchaser of the life tenanfs 
 interest until the growing crop was made, 
 without wages. 
 
 4. Because the decree was, in other re- 
 spects, contrary to the correct construction 
 of the Act of 1789, and to equity. 
 
 DeSaussure & Son, for appellant. 
 Munro, Brewster & Dunkin, contra.
 
 SACKETT.S JIAKBuLll liAXK v. BLAKE 
 
 DARGAN, Ch., delivon-d the opiniou of the 
 Court. 
 
 The duty of anuouncini; the judjiuient of 
 the Court, in this case, has been devolved 
 upon lue. I have fully dist-ussed the ques- 
 tions, made in this apjieal, in the circuit de- 
 cree, and deem it unnecessary to add any- 
 thing to the views which I have therein ex- 
 pressed. 
 
 It is ordered and decreed that the circuit 
 decree be affirmed and that the appeal be 
 dismissed. 
 
 DUNKIN, Ch., concurred. 
 
 JOHNSTON and WAKHLAW, CC. We 
 
 Caldwell, Ch. The bill states that the 
 Sackett's Harbour Rank was incorporated by 
 an Act of the State of New York, and was 
 doint,' business in its corporate *ii]»acity be- 
 fore tlie year 1841'. That in XovemU'r, l.s;!(.i, 
 a charter of incorporation was f;ranted by the 
 same State to certain persons, const it utinf; 
 them a corporation, by the name of the .lef- 
 fer.son AVoollen ('omi»any, which became a 
 body corporate in law and fact, and com- 
 menced business as a coriM)ration in the vil- 
 lage of De.\ter, in Jefferson county, in the 
 .said State; that Ann Stead Izard (who aft- 
 erwards intermarried with Walter Blakei be- 
 came a member of said corporation, which 
 afterwards made two promissorv notes for 
 concur in the result. Our opinion is, that 1 value received, one for four thousand dollars 
 the case at bar does not fall within the Act l payable to E. Kirby. or order, four months 
 
 of 17S9, or either clause of it ; but is a 
 casus omissus; and that the rights of the 
 remainder-man stand as at connnon law. 
 Appeal dismissed. 
 
 3 Rich. Eq. 225 
 
 THE SACKE^TS IIAKBOTR BANK v. 
 
 WALTER KLAKE and Wife et al. 
 
 (Charleston. Jan. Term. ISol.) 
 
 [1. VorporatUiiis <©=>U;{5.] 
 
 By the fjeneial Act of New York, aiitiioriz- 
 ing manufacturing incoriiorations. "for all debts 
 due and owins by auy such Company, at the 
 time of its dissolution, the persons then compos- 
 iul;- sucli Company, shall be individually re- 
 sponsible to the extent of their resiiective shares 
 of stoek in the said Company, and no furtlier;" 
 the defendant luul been a stockliolder in sueli a 
 C ompany, in New York, at the time of its dis- 
 solution, and the Company was then indebted 
 to the plaintiffs; the Company l)einu- insolvent, 
 and all other stockholders havinir ]);iid deiits of 
 the Company to the extent of their lial)ilities 
 the plaintiffs filed a l)ill ajrainst defendant, .seek- 
 ing payment of their debt: J/eld, 
 *226 
 *1. That by the Act of New York, the de- 
 fendant was liable, over and above the stock 
 held by her, to a sum equal to the amount of 
 the stock. 
 
 [Va]. Note.— Cited in I'arker v. Carolina Sav- 
 inus Bank. 5:} S. C. 501. .-{l S. E. 673, 69 Am. 
 St. Kep. .S88. 
 
 Rs^'co/'^l^t^ ^^A*"^' ^■^•^ Corporations, Cent. Dig. 
 §S 804. 805; Dec. Dig. <@=>235.] 
 
 [2. CorpQ^rations <g=3205.] 
 
 That, under the circumstances, plaintiffs 
 could maintain their bill without joining tiie 
 other stockiiohh-rs as defendants. 
 
 o'l'wli. ^"^^-"^'^^^^ ^^ Terry v. Martin, 10 S. 
 
 K TiTo^^Jl^'' ^i'^.'^^- ^^^ Corporations, Cent. Dig. 
 § 1110; Dec. Dij,'. <S=32(;.".] 
 
 [."J. Coriiordiiont <S=^2.';."i.J 
 
 That defend.-int was not liable to creditors 
 tor interest on tiie anxMint f(.r whi.h she was 
 liable over and above the .stock held by her. 
 ^ J ''!''•, ^'"t^'-~^''f"' <»tlicr cases, see Cor|)orations. 
 Cent. Dig. ii§ 8!>4. 805; Dec. Dig. <S=>235.J 
 
 Bef.ue Caldwell. Ch., at Charleston, June, 
 1840. 
 
 The decree of his Honor, the Circuit Chan- 
 cellor, is as follows: 
 
 after date, at the Sacketfs Harbour Bank, 
 dated Dexter, May 26th, 1842 and signed by 
 E. Kirby, agent, and endorsed by E. Kirby. 
 \Vni. Lord & Sons. Keyes & llungerford; tlie 
 other for one thousand dollars, payable to E. 
 Kirby, or order, sixty-three days after date, 
 dated Dexter, July 24th, 1S42, signed by E. 
 Kirby, agent, and endor.sed by the same per- 
 sons as the former. These notes were dis- 
 counted at the Banking house of the plain- 
 tiffs, and endorsed by E. Kirby, and the 
 amount thereof paid and advanced, less the 
 legal discount, and afterwards when they 
 severally became due. they were i»reseuted 
 for payment and protested for non-payment. 
 That in 184."^. tho real an<l personal estate 
 and effects belonging to the Jefferson Wtwlleii 
 Company, were sold under executicui against 
 it, by the sheriff" of Jetlcrson county, and the 
 Company then and there become legally dis- 
 
 *227 
 
 solved. Several of the executions *agaiust 
 the company have been returneil by the Sher- 
 iff nulla bona, and the Company was then, 
 and is now, altogether insolvent. 
 
 The general Act of New York, authorizing 
 manufacturing incorporations, was passeil 
 22d March, 1811, and provides, "that the 
 stock of such Company shall be deemed per- 
 sonal estate, and be transferable in such 
 manner as shall be prescribed by the laws of 
 the Company; and that for all debts that 
 shall be due and owing I)y the Company, at 
 the time of its dissolution, the persons then 
 composing such Company shall be individual- 
 ly responsible to the extent of their respective 
 shares of stoek in the said Company, and 
 no further; and that it shall not be lawful 
 for such Company to use their funds, or any 
 part thereof, in any Banking transaction, 
 or in the purchase of any stock of any Bank, 
 or in the purchase of any public stock what- 
 ever, or for any other purposes than those 
 specified in such instrument as aforesaid." 
 
 That the .said Ann Stead Izard became a 
 member of said corporation, in 1-ebruary, 
 18.'{7. and sul)scribe(l for .seventy sh.ires. and 
 
 <^=^Fo^ other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and lude 
 
 93
 
 ■3fo27 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 became a stockholder to that extent, (or 
 seventy shares of the capital stock,) each 
 share being then valued at one hundred dol- 
 lars, and that she remained owner of the 
 said shares, and a member of said Company, 
 till the 8th of June following, when, in con- 
 templation of a marriage with Walter Blake, 
 she assigned and transferred the said seventy 
 shares in the capital stock of said Company, 
 amongst other property to John Julius 
 Izard Fringle, and Benjamin Huger, In trust, 
 to apply the income thereof to the joint use 
 of Walter Blake and herself forever, and 
 after the solemnization of said marriage, dur- 
 ing their joint lives, with certain other limi- 
 tations, «&c. The said deed contains a pro- 
 viso, that the trustees shall not be answer- 
 able for any losses or damages which may 
 happen in the execution of any of the trusts, 
 or in anywise relating thereto, unless the 
 same shall happen by or through their wilfnl 
 default respectively. That the contemplated 
 marriage took place after the 8th of June, 
 18oT, and the seventy shares were transferred 
 
 *228 
 to the trustees, who *therefore became, and 
 were, members of the said coriwration, and 
 so remained until after the legal dissolution 
 of the same. 
 
 The bill charges, that the trustees, or the 
 said Walter Blake, and Ann Stead Blake, 
 became and were liable to the plaintiffs for 
 the amount of the said several notes, with 
 the legal interest thereon. That the said 
 Jefferson Woollen Manufacturing Company 
 has no assets to pay plaintiffs' demands, 
 and is hopelessly insolvent, and the plain- 
 tiffs have no means of procuring payment 
 of the debt, but by seeking a remedy against 
 the individual stockholders under the law 
 of 1811 ; that plaintiffs have applied to the 
 other stockholders of the Company for pay- 
 ment, and have been informed, that they 
 have already paid to the other creditors of 
 the Company the full amount for which they 
 were liable ; and the bill charges, that there 
 is no other member of the corporation known 
 to them from whom a recovery or contribu- 
 tion for their demand can be had, and that 
 neither the said trustees, or Walter Blake, 
 or Ann Stead Blake, have paid any demand 
 of any creditor of the Jefferson Woollen Com- 
 pany, or have made contribution towards the 
 same. The bill prays for a discovery as to 
 the facts alleged, and for an account of the 
 assets, and of the debts of the Company, and 
 that the assets may, if any, be applied to 
 pay the plaintiffs, and tlaat plaintiffs' de- 
 mand, or such part as may remain unpaid, 
 may be paid by defendants according to their 
 legal liability, and general relief, &e. The 
 bill was filed 3d June, 1S47. The answer of 
 Walter Blake and Ann Stead Blake, his wife, 
 states that they are strangers to the mat- 
 ters stated in the bill concerning the incor- 
 lK)ration of the Sackett's Harbour Bank ; 
 that they are informed that the Jefferson 
 
 94 
 
 Woollen Company was incorporated under 
 the provisions of the Act of the Legislature 
 of New York, relative to incorporations for 
 Manufacturing purposes, passed in 1811. 
 That the seventy shares were taken in Mrs. 
 Blake's name, and that she was governed by 
 the advice of the late Gen. Eustis, who had 
 intermarried with her aunt, in whose family 
 she lived ; that she had no information as 
 to the condition of the Company, uor the 
 liabilities attending the acquisition of stock 
 
 *229 
 therein, except it was * understood that the 
 Company was duly organized by respectable 
 persons, and that by the true construction 
 of the Act, the members were liable for the 
 payment of their several subscriptions, and 
 no more. The defendants knew nothing of 
 the relation between these corporations as 
 debtor and creditor, except what they have 
 learned from the statement of plaintiffs' bill. 
 The defendants admit they intermarried on 
 16th June, 1837, and the fortune of Mrs. 
 Blake was settled by being conveyed to the 
 trustees for the uses of the marriage, and 
 her interest in the Company was transferred 
 to the trustees, but whether any certificate 
 for her shares in the Jefferson Woollen Com- 
 pany, which were paid for out of her funds, 
 partly before and partly after her marriage, 
 were ever issued, they do not know ; they 
 do not know whether all the subscribers paid 
 up their subscriptions; the dividends or in- 
 terest have been received by defendants, or 
 as they believe, by the trustees, on account 
 of said shares. They have heard that the 
 Jefferson Woollen Company has ceased after 
 becoming insolvent, but they do not know 
 what has become of the assets, nor what 
 debts are owing by the Company, nor to 
 what amount the members of the Company 
 should contribute in order to pay off such 
 debts. Neither do they know how much the 
 several members of the Company have con- 
 tributed, nor whether they have contributed 
 equally or in proportion to their shai'es, in 
 paying off the debts of the Company, though 
 they ai'e informed and believe, that one mem- 
 ber of the Company, Mrs. Patience Izard, 
 has paid a certain sum towards the debts of 
 the Company, over and above her subscrip- 
 tion ; they do not know whether the plain- 
 tiffs have resorted to any other member of 
 the Company for contribution, or received 
 satisfaction from any member of the Company 
 for their supposed liability to the debts of the 
 corporation ; nor the measure of such satis- 
 faction ; and if the plaintiffs have chosen 
 to pass by the members of the Company, who 
 are in their neighborhood, and single out 
 these defendants to bear the whole burden of 
 their claim, these defendants hope their 
 rights may not be prejudiced by the election 
 of the plaintiffs. Defendants do not admit, 
 
 *230 
 but deny, that the *members of the incor- 
 poration, called the Jefferson Woollen Com-
 
 SACKETT'S HARBOUR BANK v. BLAKE 
 
 paiiy. by roasori of any l<i<al or other law, 
 or liy c-haii},'i's niatle in tin- New York judi- 
 ciary, are lialile in tlieir private characters 
 for tile (lei»ts of tlie Company, hut if liaMe at 
 all. they insist that the liahllity, accordini: 
 to the rules of e<|uity and justice, is contined 
 to the measure of a ju.st contribution. They 
 deny that tiie plaint ills have sliown any rif;ht 
 to sue in this Court. 
 
 The material allegations of the hill have 
 been established by the testimony of witness- 
 es taken by commission, and the principal 
 nuestion is, is .Mrs. Blake's estate, in the 
 liands of the trustees, liable for the plaintirt's 
 debt .' At common law, it is a well settled 
 principle, that the debts of a corporation 
 must be jiaid out of the coriKirate fund, and 
 tliat the individual members are irresponsible 
 beyond the amount of their respective inter- 
 e.sts therein; this extraordinary privilej^e 
 and protection to the memliers of a corpora- 
 ti<tn, constitutes the distinj,'uishiiijr character- 
 istic between them and the individuals com- 
 prising,' a i)artnership. but it is constitutional 
 and comi)etent for the I.ejrislature. in grant- 
 in?: a charter of incorporation, to prohibit 
 and withhold this protection, and to make 
 those who become members of the corpora- 
 tion liable for the debts of the body corporate. 
 
 The State of New York, in ISll, adopted a 
 general law on the subject of incorporations 
 for manufacturing purposes, and the Jeffer- 
 son Woollen Company was incorporated 
 under its provisions. The introduction of 
 this new rule of responsibility, removed, in a 
 great degree, the distrust of the connminity 
 in such corporations, and gave additional se- 
 curity to their creditors, who, at common law, 
 were left unpaid when the corporate funils 
 were inadiMiuate to discharge the debts. It 
 would .seem, that before the creditors can 
 imrsue their remedy under the Act, the cor- 
 poration must be dissolved, as the individual 
 members are only made liable "for all the 
 debts that shall be due and owing by the 
 Conijiany at the time of its dissolution." 
 The first inquiry is, has the corporation been 
 dissolved? The question, an to what con- 
 stitutes a dissolution, has often been con- 
 sidered and adjudged ; when a corporation 
 ceases to act, and indicates no intention to 
 
 *231 
 ♦resume their functions in a corjiorate capac- 
 ity, when it becomes indebted for more than 
 it is worth, and permits all Its corporate 
 assets to be sold, and executions against it 
 are returned nulla bona, and becomes utterly 
 in.solvent, such acts wtmld be sutficlent to 
 frustrate the object of its institution, and is 
 equivalent to a surrender of its ttirporate 
 rights. Although there be no formal judg- 
 ment of ouster or dissolution jironounced. 
 yet the acts of the Conii>any have produced 
 a practical dissolution, so that a creditor may 
 maintain a suit against the individual stock- 
 holders, under the Act of 1811. All these 
 questions have been repeatedly discussed and 
 
 decide<l, by the judicial triliuiials of New 
 York, and the construction which has there 
 been given to the Act nuist govern us, uidess 
 it be iial|iably absurd or unconstitutional. 
 The general ciunlty that exists between 
 States, to regard the construction that each 
 State gives to its statutes, is founded upon 
 both reason and policy ; but we are bound 
 to adopt that construction by a higlier au- 
 thority than mere courtesy ; the Supreme 
 Court of the Cnited States has long since es- 
 tablished the itrinciple, that the decisions of 
 the State tribunals respectively, in tlie <-<in- 
 struction of their statutes, shall \iniforndy 
 be adopted ; the propriety and expediency of 
 this, is uumifest in cases where the decisions 
 of the State Courts become rules of iiroi>erty. 
 The only remaining intiuiry is, what Court 
 is entitled to exercise jurisdiction. This 
 (luestion has also been decided in New Y'ork, 
 and the Court of Chancery has been held to 
 be the proper tribunal. Independently of 
 the more ample and ade(iuate powers with 
 which this Court is armed in ca.ses of ac- 
 count, partnership contribution, and discov- 
 ery, there is a i>eculiarity in this ca.se that 
 demonstrates that this Court ought to ex- 
 ercise jurisdiction; the individual mendier 
 of the corporation against whom the reme- 
 dy is sought, is a married woman, and her 
 estate is in the hand.s of trustees mider a 
 marriage settlement, and can only be reach- 
 ed by proceedings in eiiuity. From the evi- 
 dence, it appears the ilefendants are liable 
 to the creditors for the sum of seven tiiou- 
 sand dollars, against which they are enti- 
 
 *232 
 
 tied to set otT *the sum of twenty-three hini- 
 dred and fifty dollars. (-Si.': !.">()) to which must 
 be added interest to the time of the disso- 
 lution of the Jefferson Woolen Conqtany. on 
 the 20th April, 1843. The defendants were 
 creditors for this aggregate of princii»al and 
 interest at the dissolutitin. and they are, 
 therefore, only liable for the balance after 
 deducting that amount from the seven thou- 
 .sand dollars, with Interest from the l.".tth 
 day of April. 1843. It is, therefore, ordered 
 and decreed, that it be referred to the Mas- 
 ter to ast-ertain and report the lialance of 
 principal and interest due to tlie plaintitTs. 
 and that the said balance be paid by the said 
 defendants out of the trust proi>erty of the 
 marriage settlement aforesaid, to the said 
 plaintiffs, in satisfaction of thetr demand, 
 and that the defendants do pa.t the costs of 
 this suit; the said costs to be allowed and 
 paid out of the trust property aforesaid. 
 
 The defendants appealed, on the follow- 
 ing grounds. 
 
 1st. That under the seventh section of the 
 general manufacturing law of 1811, the 
 members of the Jefferson Woolen Company 
 were only liable to the extent of stoek sub- 
 scribed. 
 
 2d. That the plaintiffs hud uo right to 
 
 93
 
 *232 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 sue the defendants without joining all the 
 stockholders. 
 
 3d. That the plaintiffs had no right to a 
 decree against the defendants for any thing 
 more than contribution, after the accounts 
 necessary for the purpose had been stated. 
 
 4th. That the decree is erroneous in charg- 
 ing the defendants with interest on the sum 
 of $4,272, from 29th April, 1843, because nei- 
 ther the sum of $7000 dollars, nor the bal- 
 ance of that sum, carry interest. 
 
 Petigru, for appellants. 
 Northrop, contra. 
 
 DUNKIN, Ch., delivered the opinion of 
 the Court. 
 
 The Court concurs with the Chancellor 
 that in giving construction to the Statute 
 of 1811, the decisions of New I'ork should 
 be followed. It has been ruled by the Court 
 of Errors in that State that "every stock- 
 
 *233 
 holder in a company of this de*scription in- 
 curs the risk, under the Statute of 1811, of 
 not only losing the amount of stock sub- 
 scribed, but is also liable for an. equal sum, 
 provided the debts due and owing at the time 
 of dissolution are of such magnitude as to 
 require it ;" and, again, "the statute de- 
 clares their liability without reference to the 
 amount they have paid in on their stock." 
 Briggs V. Penniman, (8 Cowen, 387). 
 
 We think, too, that the state of facts dis- 
 closed by the evidence, authorised the com- 
 plainants to maintain their bill, without 
 joining the other stock-holders as defend- 
 ants. 
 
 The question of interest presents more diffi- 
 culty. Strictly speaking, no contract ex- 
 isted between the complainants and the de- 
 fendants. The defendants are no parties to 
 the notes, nor is their liability measured by 
 the amount of those notes. The contract is 
 with the corporation, which has an exist- 
 ence as separate from the individuals who 
 compose it, as those individuals have from 
 each other. The defendants might not have 
 been members of the corporation when the 
 debt was contracted, or when the notes were 
 dishonored. They are rendered liable by the 
 stringent provisions of the statute, and by 
 nothing else. This fixes their liability, and 
 measures the extent of it. "For all debts due 
 by the company at the time of its dissolution, 
 the persons then composing such company 
 shall be individually responsible to the ex- 
 tent of their respective shares of stock in 
 the said company, and no further." Accord- 
 ing to the construction given to this clause 
 by the New York adjudications, this amounts, 
 substantially, to a forfeiture of so much be- 
 yond the original subscription — so much be- 
 yond the contract of the parties, which was 
 only to pay a stipulated sum according to the 
 number of shares subscribed. But this ex- 
 traordinary liability cannot be enforced, un- 
 
 less required for the satisfaction of the 
 debts of the corporation. It cannot be ex- 
 ceeded, although ninety cents in the dollar 
 of those debts remain unsatisfied. If the 
 defendants had entered into a bond in the 
 penalty of seven thousand dollars, condi- 
 tioned to pay the debts of the corporation, 
 or to do any other act, the recovery is never 
 
 *234 
 permitted to exceed the peu*alty. Bonsall 
 V. Taylor, (1 McC. 503,) was the case of a 
 common money bond, where this principle 
 was recognized. And in Strobel v. Large, 
 (3 McC. 112,) in an action on a bond for the 
 performance of covenants, the verdict of the 
 jury assessing damages beyond the penalty 
 was set aside nisi. In both these cases, the 
 penalty was to secure the performance of 
 the party's own contract. The Statute of 
 1811 imposes a liability for the default of 
 another, and expressly provides that it shall 
 extend "no further." No recovery could be 
 had against these defendants alone until it 
 had been established that the corporation 
 was dissolved, — that the debts were unpaid, 
 and that the other stock-holders had paid in 
 full to the extent of their liability. Those 
 facts having been established, the complain- 
 ants were entitled to a decree "to the extent 
 of the shares of the stock held by the defend- 
 ants, and no further." This was seven thou- 
 sand dollars. But if they had been compell- 
 ed to pay to other creditors, or had made ad- 
 vances to the company (according to Briggs 
 V. Penniman) to the amount of five thou- 
 sand dollars, only two thousand dollars could 
 be recovered. The Master has fixed the 
 amount already paid by the defendants, at 
 twenty-seven hundred and twenty-eight dol- 
 lars, leaving the sum of four thousand two 
 hundred and seventy-two dollars as still due, 
 in order to make up the sum of seven thou- 
 sand dollars. 
 
 It is ordered and decreed, that the defend- 
 ants pay to the plaintiffs, out of the trust 
 estate, the sum of four thousand two hun- 
 dred and seventy-two dollars, together with 
 the costs of these proceedings; and that the 
 decree of the circuit Court be modified ac- 
 cordingly. In all other respects the decree 
 is aflirmed. 
 
 JOHNSTON, DARGAN and WARDLAW, 
 CO., concurred. 
 Decree modified. 
 
 3 Rich. Eq. *235 
 
 *ISAAC TELFAIR, Executor of Ann Timothy, 
 Deceased, v. M. L. HOWE et al. 
 
 (Charleston. Jan. Term, 1851.) 
 
 [Wills (©==>863.] 
 
 Testatrix bequeathed as follows: — "I direct 
 my executors to pay over the residue of my ^ 
 estate," &c. "to the American Bible Society 
 of New York, and to the American Missionary 
 
 96 
 
 «g=5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 TELFAIR V. HOWE 
 
 •237 
 
 Society of New Yoik, to wlioiii I Ifiivc .ii- ln'- 
 queath it:" the Ainericnii ISihlc Sutiity of New- 
 fork was a hixly corpKriitf ; and no such So- 
 ciety as the American Missionary Society was 
 in existence or ever iiatl an existence: Held, 
 that the American Rilile Society was not enti- 
 tled to the whole of the residue: and that, as 
 to the moiety intendeil to lie het|iieatlied to tlie 
 American Missionary Society, tiie testatrix had 
 died intestate, and the same was distributaliie 
 amou? her next of kin. 
 
 [Ed. Note.— For otlier cases, see Wills, Cent. 
 Dii.'. S I'lsT: Dec. Dig. <s=>.s(j:5.| 
 
 [Wills C=f'iiT.l 
 
 If the American Bible Society of New York 
 and the American Missionary Society of New 
 York were both in existence, and were capable 
 of takinir an estate in joint-tenancy, by a prop- 
 er construction of the terms of the bequest. — 
 regard being had to the dilTerent objects of the 
 two societies, — no such estate was intended to 
 be created. 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. S§ l-ir)l'-14r)!); Dec. Dig. <5=:»()-J7.] 
 
 [Corporations <©=4.*i4.] 
 
 A corporatitin cannot take an estate in joint 
 tenancy, either jointly with another corporation, 
 or with a natural person. 
 
 [Ed. Note. — For other cases, see Corporations, 
 Cent. Dig. § 1770; Dec. Dig. <g=>434.1 
 
 Before Duukin, Ch., at Charleston. June, 
 1S50. 
 
 Dunkin, Ch. By the 2oth clause of Mrs. 
 Ann Timothy's will, it is provided as follows, 
 viz.: — "I direct my executors to pay over the 
 residue of my estate, or bonds, or money, to 
 the American Bible Society of New Y'ork, 
 and to the Missionary Society of New Yoi'k, 
 to whom I leave or beciueath it." 
 
 The Master has reported that no such so- 
 ciety is in existence, as the Missionary So- 
 ciety of New York. 
 
 TTie question is presented, wlu'ther the 
 American Bible Society of New York are en- 
 titled to the whole of the be(iuest, or whether 
 a moiety is not distributable anioni; the next 
 kin of the testatrix. 
 
 The testatrix seems, in former clauses of 
 her will, to have dispo.sed of the whole of 
 her real estate, and from this circumstance, 
 as well as from the terms of the jiift. it is 
 very clear that the beciuest was intended to 
 apply only to personalty. 
 
 In cases of joint teinuicy, the jj;eneral rule 
 is, that if the devise fail as to one of the 
 devisees, from its being orij^iiuUly void, or 
 subsequently revoked, or by reason of the 
 
 *236 
 decease of the *devisee in the testator's life- 
 time, the other, or others, will take the whole. 
 But the rule is different as to tenants in 
 common, whose .shares, in ca.se of the failure 
 or revocation of the devise to any of them, 
 descend to the heir at law. (2 Jarnian on 
 Wills, 1()7). The rule is equally ai)plicable to 
 bequests of chattels, to money legacies, and 
 residuary betpiests, as to a devise of real 
 estate, (Id. 151b. But even in case of devises 
 to individuals, the Courts have maiufested a 
 strong (lispt)sitiou to give such construction 
 to the devise as would create a tenancv in 
 
 coMiniun; and "this anxiety (say the au- 
 thorities) has been dictated by the conviction 
 that this .species of interest is l)etter a<lai)tiHl 
 to answer the exigencies of families than a 
 joint tenancy." Any expressions importing 
 divisio!! oi referring to dovisei's as owners 
 of distinct interests, or simply denoting i*qual- 
 ity, will have this cffeit. In Marryat v. 
 Townly, (1 Ves. sen. 10:5.) Lord Ilanlwicke 
 says: "It happens luckily to assist the ('..urt. 
 that the drawer of the will has inserted di- 
 rections for the trustees to convey, and 
 wherever there are such directions for the 
 trustees in whom the legal estate is vested, 
 the Court has held it in its power to mould 
 it .so as best to answer the intent of the 
 testator." If there were no more in the 
 case under consideration, the Court might be 
 well warranted in the conclusion from the 
 character of the donees, that when the tes- 
 tatrix directed her executors to l»ay over the 
 residue of her estate, or bonds, or money, to 
 the American Bible Society, and the New 
 York Missionary Society, she intended the 
 amount to be paid to them in equal propor- 
 tions, for the purposes of their respective in- 
 stitutions, and that it was, therefore, a ten- 
 ancy in common. 
 
 But I do not find that this doctrine has 
 ever been applied to corporations. Littleton 
 says "if lands be given to two men. and to 
 the heirs of their two bodies begotten, the 
 donees have a joint estate, &c. ; but if lands 
 be given to two Abbots, as to the Abbot of 
 NVestminster, and to the Abbot of St. Al- 
 bans, to have and to hold, to them and their 
 successors, in this case they have presently 
 at the beginning, an estate in connuon, and 
 not a joint estate. And the reason is, that 
 
 ♦237 
 
 every Abbot, before that *he was made Abbot, 
 was but as a dead person in law, and when he 
 is made Abbot, he is as a man personable 
 in law only to purchase and have lands, or 
 tenements, or other things, to the use of his 
 house, and not to his own proper use. as an- 
 other secular man nuiy, and, therefore, at 
 the begiiming of their purchase, they are 
 tenants in connnon : and if one of them die, 
 the Abbot which .surviveth shall not have the 
 whole by survivor, but the successor of the 
 Abbot which is dead shall hold the moiety in 
 common with the Abbot that surviveth," &c. 
 Co. Lit. Lib. ;j, cap. 4, sect. L'9G. 
 
 In the Commentary, Lord Coke says, — "In 
 this case of the two Abbots, in respect to 
 their several capacities, albeit the words be 
 joint, yet the law ditth adjudge them to be 
 .severally seized." And the &c. of Littleton 
 implies (he says) that the doctrine is equally 
 applicable to every body, politic or corporate, 
 whether regular or secular. They take in 
 their politic capacity, and are tenants in com- 
 mon, because they are seized in several 
 rights, &c. And so is the rule, if lands are 
 
 ®=)For other cases see same topic and KEY-NUMUEK In all Key-Numbered Digests and Indexes 
 3 Bicu.Eq.-7 W
 
 *237 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 given to an Abbot and a secular man, they 
 have an estate in common causa qua supra. 
 
 In Mr. Hargrave's note on these sections, 
 he remarlis, "Here joint words are construed 
 to make several estates in respect of the 
 several capacities of the donees. In a for- 
 mer part, vesting at several times, makes 
 joint VFords to operate severally." 
 
 It was suggested in the argument, that 
 these rules were only applicable to devises of 
 real estate, and that such was the dictum of 
 Lord Coke. It is true. Lord Coke says, if 
 goods be granted to a bishop, or to an abbot 
 and a secular man, they are joint tenants, 
 because they take not in their politic capac- 
 ity. But, says Mr. Hargrave, "in a former 
 part, Lord Coke explains the reason of this 
 to be, that no chattel can go in succession in 
 the case of a sole corporation, no more than 
 a lease for years to one and his heirs can go 
 to heirs, but there are exceptions to this 
 rule," &c. However this may be, it is very 
 certain that the legatees in this case can take 
 only in their coi'porate capacity, and fall 
 directly within the reasoning of Littleton's 
 text. 
 
 *23b 
 
 *The joint words used in this bequest must, 
 therefore, be construed to make several es- 
 tates, in respect of the several capacities of 
 the donees. Generally, a lapsed legacy falls 
 into the residuum, but here, a part of the 
 residuum itself is the lapsed legacy ; in such 
 case, as was held in Page v. Page, (2 Stra. 
 820,) it is regarded as undisposed of, and 
 must go to the next of kin of the testatrix. 
 
 It is declared that the parties who are 
 next of kin of the testati'ix, as set forth and 
 admitted in the pleadings, are entitled to the 
 moiety of the residue of her estate, ineffect- 
 ually bequeathed to the New York Mission- 
 ary Society. 
 
 The defendant, the American Bible Society 
 of New York, appealed from the decree, be- 
 cause, it is respectfully insisted, the Chan- 
 cellor erred in so construing the will of Mrs. 
 Timothy, as to declare that the parties who 
 are next of kin of the said testatrix, are en- 
 titled to the moiety of the residue of her es- 
 tate ineffectually bequeathed to the New 
 York Missionary Society. 
 
 [For subsequent opinion, see 4 Rich. Eq. 
 254.] 
 
 Memminger, for appellant. 
 Porter, contra. 
 
 DARGAN, Ch., delivered the opinion of the 
 Court. 
 
 The question made in this appeal arises 
 under the 25th clause of Ann Timothy's will; 
 which is in these words: — "I direct my ex- 
 ecutors to pay over the residue of my estate, 
 or bonds, or money, to the American Bible 
 Society of New York, and to the American 
 Missionary Society of New York, to whom I 
 leave or bequeath it." From the Master's 
 report it appears, that no such society exists, 
 
 98 
 
 as the American Missionary Society of New 
 York: and it has not been shewn, indeed it 
 is admitted that no such society ever had an 
 existence. On the part of the Bible Society 
 it is contended, that the clause in question 
 creates an estate in joint tenancy ; and that 
 there being no such society in existence as 
 the American Missionary Society of New 
 York, the said Bible Society is entitled to 
 the whole legacy given in that clause by 
 virtue of the jus accrescendi. The circuit 
 decree negatives the construction, which 
 would make the estate given in the 25th 
 
 *239 
 *clause, a joint tenancy, and from the cir- 
 cuit decree on this point, an appeal has been 
 taken. 
 
 The estate in joint tenancy presents some 
 of the most artificial rules of subtle distinc- 
 tions of the ancient common law. It was 
 once highly favored in England, (Master of 
 the Rolls in Morely v. Bird, 3 Ves. 630) doubt- 
 less for reasons that were feudal in their 
 character, and influential in their day ; but 
 which have long since ceased to operate. 
 For whatever may have been the causes 
 which led to the origin of this estate, or 
 which recommended it to our rude and war- 
 like ancestors of the feudal period, it is un- 
 deniable that, at this day, it has grown into 
 disfavor in English and American Courts : 
 more especially in Courts of Equity. 
 
 The learned Judge in the case already cit- 
 ed, says that "the ancient law on this sub- 
 ject still prevails. And unless there are 
 words to sever the interest taken, it is at 
 this moment a joint tenancy, notwithstand- 
 ing the leaning of the Courts lately in favor 
 of a tenancy in common. A legacy of a 
 specific chattel, a grant of an estate, is a 
 joint tenancy. It is true, the Courts, seeing 
 the inconvenience of that, have been desirous, 
 wherever they could find any intention of 
 severance, to avail themselves of it : and 
 their successive determinations have laid 
 hold of any words for that purpose." 
 
 Many distinctions prevail in the Court of 
 Equity, in reference to this estate, that are 
 not recognized at law. Thus, where two 
 or more persons are engaged jointly in trade, 
 and have debts due to them as partners, 
 though at law they are joint tenants, and, 
 on the death of one of them, the legal estate, 
 at law, vests in the survivors — in equity the 
 right of survivorship is not allowed, and the 
 survivors are obliged to account to the repre- 
 sentatives of the deceased partner : or, if 
 two persons purchase real estate jointly with 
 the view of carrying on trade, it is in equity 
 a case, not of joint tenancy, but of tenancy 
 in common. Lake v. Craddock, (3 P. Wms. 
 158). And, if money is laid out jointly upon 
 an estate held in joint tenancy, with a view 
 
 *240 
 to *its improvement, that, in this Court, is a 
 severance, Lyster v. Dolland, (1 Ves. Jr. 434). 
 
 The common law institutions of property
 
 TEMWIR V. HOWE 
 
 liavf undergone many mutations in tlie |>ri)g- 
 jvss of jijres. Some of its liaislu'i- ami most 
 iiicoiivi'nieiit rules have been aiiolislu'd l»y 
 tilt' Lt'inslative power: and others liave been 
 ;:radually and insensiidy niodilied by the 
 <<iurs.' of judicial deeisi<iiis, and moulde«l so 
 as h»'tter to confonn to the convenience and 
 sentiments of modern society. The most 
 prondncnt. and I may say tlie most odious 
 feature or incident of this estate (the riglit 
 of survivorslupl which in almost every in- 
 stance defeats the intentit)n of the testator, 
 was abolislied by our Act of Assemidy of 
 171H. The Act did not aliolish joint tenancy 
 itself, but only this feature of the estate. It 
 laovided, in sulistance. that wliere two or more 
 liersons are .seized or possessed of real or per- 
 sonal estate in joint tenancy, and one of tliem 
 dies, the right of survivorsliip should nc^t l)e 
 allowed, but the sliare or interest of the de- 
 ceased joint tenant should go to liis heirs at 
 law or legal reiu-esentatives. This left tiie 
 rules of the common law in force where the 
 deceased tenant for life had not iu-en seized 
 (»r po.^sessed in his lifetime. In llerbemont v. 
 Thomas. (Cliev. Eq. 21,) the question turned 
 upon the construction of the words "seized 
 or posses.sed," which occur in the Act. The 
 testatrix had given a legacy to six i)ersons 
 (lier lueces) in words which, at conunon law, 
 would have constituted them joint tenants. 
 It liappened that some of the legatees had 
 died in the lifetime of the testatrix: and 
 tlie question was, whether the survivors toolc 
 tile whole legacy by virtue of tlie jus accres- 
 <»'ndi, or whether the shares of the decea.sed 
 joint legatees lapsed under the provisions 
 of the Act of 1791 into the residuary estate. 
 It was clear, that at common law, where a 
 devise or bequest is given to two in joint 
 tenancy, and the devise or beipiest fail as to 
 one, from its ijeing originally void, or from 
 its being revoked by the testator, or from 
 t lie death of one of the devisees or legatees 
 in the testator's life, the right of survivor- 1 
 ship exists, and the survivor takes the whole j 
 ♦241 I 
 
 as joint tenant. *The decision of the Court I 
 was that, as the will was ambulatory until i 
 the testatrix's deatli, and no riglit or title 
 could vest in the legatees until that event 
 had occurred, they could not l)e considered 
 as having been "po.ssessed" of any estate un- 
 der the^will, and the ca.se liy a fair interpre- 
 tation of tlie Act, could not lie regarded as 
 embraced witliin its provisions. This de- 
 cision has recently been followed by that in 
 Ball V. Deas. (L' Strob. Eq. i'4 140 Am. De.-. ! 
 6511), where the same construction itri'vailed. | 
 Tlie Act may, therefore, be considered as 
 having received a settled interpretation in 
 this particular. The Act of 17!tl. therefore, 
 does not conflict with the claims advanced l)y 
 the appellants. 
 
 I have before adverted to the tendency, or 
 leaning, (as the phrase is) of courts in mod- 
 ern times,— particularly Courts of Equity,— 
 
 to avail themselve.*? of any strong equitable 
 circumstances, or of any words employed by 
 the testator in his will, that wouhl imply a 
 .severance, to give such a construction, as 
 would make the estate a tenancy in common, 
 and not a joint tenancy. It is always a 
 (piestion of construction, and the oltject is to 
 get at tile intention of tlie testator; whicli 
 must, liowever, l)e done in conformity witli 
 established rules of interpretation. The 
 riglit of survivorsliip. as I have said, in al- 
 most every instance defeats the intention, 
 and if the Court can i)erceive. either in the 
 words or implication of tlie will, an inten- 
 tion not to create a joint tenancy, it will 
 carry that intention into etfect. Thus, in 
 Marryat v. Townly, (1 ^'es. .sen. 10:J, cited in 
 the circuit decreet. Lord Hardwicke. in con- 
 struing an estate a tenancy in common, and 
 not a joint tenancy, laid great stress upon 
 the directions of the testator, that the trus- 
 tees, in whom the legal estate was vested, 
 should convey it to the devisees. — "Wher- 
 ever," says his Lordship, "there are sucli di- 
 rections for the trustees, in whom tlie legal 
 estate is vested, the Court has held it in its 
 power, to mould it .so as i>est to answer that 
 intent of the testator." 
 
 We will suppose tlie American .Missionary 
 Society of New York to have had an exist- 
 
 *242 
 enee. This testatrix lielieved so, *when she 
 executed her will. When she, by the 25th 
 clause, directed her executors to pay over 
 the residue of her estate. &c. to the American 
 Bible Society of New York, and to the Amer- 
 ican Missionary Society of New York, did 
 she mean that they should pay it over to the 
 two societies on their joint receipt and dis- 
 charge':^ Or would the receii»t of one, liave 
 been a discharge as against the claims of the 
 other? I do not think the testatrix could 
 have .so intended. In what resi)ect are di- 
 rections for the executors to pay over, dilfer- 
 ent, in their effect, upon the construction, 
 from directions for trustees to convey'.' In 
 the latter ease, we have seen Ixird Hardwicke 
 holding, that such instructions entitle the 
 Court to mould the construction "so as best 
 to answer the intent of the testator." 
 
 Tlie objects of tlie American I5ii)le Society 
 of New York, and of tlie American Mission^ 
 ary Society of New York, (suiqiosing the lat- 
 ter to have existed.) were entirely diflerent. 
 The purpose of one was the disfribufioii of 
 Bibles: that of the other was the promotion 
 of Missions. They could not co-operate in 
 file same field of lal>or, and the .same work 
 of Christian and benevolent enteri»rize by 
 the pos.session of a joint fund without a sev- 
 erance or division: or without departing 
 from file objects of their organization. The 
 testatrix must be considered as imidying in 
 her donation, that which would have been 
 the immediate and inevital)le result, if the 
 fund could or had come into the joint pos- 
 session of the two societies: namely, a divi- 
 
 89
 
 *242 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 sion or separation of their interests. In no 
 otlier way could the fund have been dedicated 
 to the use which the testatrix designated: 
 and she ought to he considered as having 
 intended a division in the first instance. 
 Such would be my conclusion, if the two so- 
 cieties to whom the testatrix bequeathed the 
 residuum of her estate, had been, by the com- 
 mon law, entitled to take, as natural persons 
 are entitled to take in joint tenancy. 
 
 But there is another insuperable impedi- 
 ment in the way of law and authority to the 
 success of this appeal. The Bible Society of 
 New York is a corporate body. It is clear 
 
 *243 
 
 that, by the *principles of the common law, 
 none but natural persons can take in joint 
 tenancy. A corporation cannot take this es- 
 tate, either jointly with another corporation, 
 or with a natural person. The reason as- 
 signed in the early writers is, that they hold 
 in different capacities and in different rights. 
 Lord Coke, in his commentary upon the pas- 
 sage quoted in the circuit decree from Little- 
 ton, gives, very clearly, his views as to the 
 reasons which gave rise to the distinction 
 between natural persons and corixtrate bodies 
 in this particular. He says — "The &c. in the 
 end of this section implieth, that so it is, if 
 any body politic or corporate, be they regular 
 as dead persons in law (whereof our author 
 here speaketh) or secular: as if lands be 
 given to two bishops, to have and to hold 
 to them two and their successors : albeit 
 the bishops were never any dead persons in 
 law, but always of capacity to take, yet see- 
 ing that they take this purchase in their 
 politic capacity, as bishops, they are present- 
 ly tenants in common, because they are seized 
 in several rights : for the one bishop is seized 
 in the right of his bishoprick of the one moie- 
 ty, and the other is seized in the right of his 
 bishoprick of the other moiety, and so by 
 several titles and in several capacities : 
 whereas joint tenants ought to have it in 
 one and the same right and capacitj', and 
 by one and the same joint title." (Co. Litt. 
 Lib. 3, cap. 4, sect. 296). Authorities to this 
 effect might be multiplied to a great extent; 
 I cite some of them. 2 Saund. 319; Justice 
 Windham's Case, 5 Co. 8a ; 2 Cru. Dig. 491 ; 
 Finch, 83; Willion v. Berkeley, Plow. 239. 
 A modern writer (2 Crabb on Real Prop. § 
 2311, m. p. 945) says, the Queen cannot hold 
 an estate in joint tenancy. She is not seized 
 in her natural capacity, but in her royal and 
 politic capacity, in jure coronte, which can- 
 not stand in jointure with the seizen of the 
 subject in his natural capacity. He asserts 
 the same doctrine in regard to all corporate 
 bodies. I doubt very much, if a single case, 
 either English or American, can be adduced, 
 where a corporation or body politic has been 
 held to be seized or possessed of an estate 
 in joint tenancy. 
 
 *244 
 *lt is ordered and decreed that the appeal 
 be dismissed, and the circuit decree rendered 
 on the hearing at June Term, IsSO, be af- 
 firmed. 
 
 JOHNSTON, DUNIvIN and WARDLAW, 
 
 CC. concurred. 
 Appeal dismissed. 
 
 3 Rich. Eq. 244 
 
 F. CROSSBY and Others v. ABRAM SMITH 
 
 and Others. 
 
 (Charleston. Jan. Term, 1851.) 
 
 [Descent and Distribution <S==>4S.] 
 
 Testator bequeathed the whole of his per- 
 sonal estate to his wife for life, the same "to 
 be equally divided, at my wife's decease, among 
 all my children:" "one reserve I wish my ex- 
 ecutors to enforce ; that is, if either of my law- 
 ful heirs should die, leaving issue behind them, 
 before a distribution should take place, as I 
 have before mentioned, for their issue or heirs 
 not to come in for their parent's share of my 
 property:" testator left eight children, three of 
 whom died before the tenant for life, leaving 
 issue. Held, that the issue of the three deceas- 
 ed children were not excluded by the terms of 
 the will, but that they were entitled to the 
 shares their parents would have taken had they 
 survived the tenant for life. 
 
 [Ed. Note.— Cited in Tindal v. Neal, 59 S. C. 
 14, 36 8. E. 1004. 
 
 For other cases, see Descent and Distribution, 
 Cent. Dig. § 131; Dec. Dig. <©=^4S.] 
 
 [Descent and Distribution <®=:348.] 
 
 A man may dispose of his property by will 
 as he pleases ; but if he makes no disposition of 
 the property, he cannot exclude those, whom 
 the law appoints to the succession, by a mere 
 declaration that they shall not take. 
 
 [Ed. Note.— Cited in Seabrook v. SeabrooK, 10 
 Rich. Eq. 505, 513; Beaty v. Richardson, 56 
 S. C. 188, 34 S. E. 73, 46 L. R. A. 517. 
 
 For other cases, see Descent and Distribution, 
 Cent. Dig. § 131 ; Dec. Dig. <S=::548.] 
 
 Before Johnston, Ch., at Beaufort, Febru- 
 ary, 1850. 
 
 The decree of his Honor, the circuit Chan- 
 cellor, is as follows. 
 
 Johnston, Ch. This is a very perplexing 
 case, and arises out of circumstances, whose 
 original obscurity has been greatly increased 
 by the lapse of time. 
 
 Samuel Smith, the common ancestor of 
 the litigating parties, died in the latter part 
 of 1815, leaving a will, executed by him the 
 15th of September of that year, to which I 
 shall hereafter advert, and leaving a widow, 
 Sarah, and eight children, to wit: five sons, 
 Abram, James, Charles, William and Ben- 
 jamin ; and three daughters, Nancy Mew, 
 (a widow) Elizabeth, who intermarried with 
 one Buler, and Mary, now wife of Dr. Du- 
 pont. 
 
 *245 
 
 *The testator was, at his death, possessed 
 of a tract of land, containing about one thou- 
 sand acres, and of about sixteen slaves, be- 
 sides cattle and other personalty. 
 
 100 
 
 @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 CROSSBY V. SMITH 
 
 *-24- 
 
 His will, whidi was attested by only two 
 witnesses, and was, therefore, insiiHicient 
 as to the land, was in the sinj^ular terms 
 foUowin.!^: 
 
 "First. I give and bequeath unto my bo- 
 loved wife, Sarah Smith, all my property, 
 both real and personal, and stock of every 
 description, which I was possessed of at my 
 decease, during her natural life. 
 
 "Secdudly. I give and bequeath unto my 
 two youngest sons, Charles and .Tames, one 
 negro girl, by the name of Clarista, her and 
 her increase. 
 
 •'Tliirdly. I give and beiiueath unto my 
 three sons, Benjamin, Charles and James, the 
 plantation and tract of land, whereon I did 
 reside, for to be e<iually divided among the 
 three; and the remaining part of my proper- 
 ty to be equally divided, at my wife's decease, 
 among all my children: ex<epting that I do 
 reserve out of the last mentioned property, 
 fifty dollars to my daughter, Klizabeth, and 
 fifty dollars unto my daughter, Mary, as 
 an equivalent for their not having had any 
 land given them, over and above the others ; 
 on account of the others having land given 
 to them, as William, Nancy, and Abram had. 
 
 "It is my will and desire, that all the prop- 
 erty be kept together, during my wife's life- 
 time ; (if her death take place before my 
 youngest son, James, should arrive at the age 
 of eighteen years, it is my will, that it should 
 be kept together, until he arrives at that 
 age) ; and then, the distribution to take place, 
 as before mentioned. 
 
 "One reserve I wish my executors to en- 
 force: that is, if either of my lawful heirs 
 siiould die, leaving issue behind them, before 
 a distribution should take place, as I have 
 before mentioned, for their issue or heirs 
 not to come in for their parent's share of 
 my property. 
 
 "I do appoint my wife, my son, William, 
 Abram Smith's my true and lawful executors 
 to carry my said will into full execution, ac- 
 cording to my will and desire." 
 ♦246 
 
 ♦The will was admitted to probate the 2d 
 of October, 1815, and William Smith iiualitied 
 as executor. Sarah Smith qualified as ex- 
 ecutrix, the 27th of November following, and 
 took iiossession of the property, and continu- 
 ed in the possession of it until sometime in 
 1831, In that year, all the children of the 
 testator being alive and of full age, a divi- 
 sion was made of the negroes; thougli Sarah 
 Smith, the widow, who was entitled to a 
 life estate in them, was still alive. It was 
 made by consent of all parties, though the 
 terms of it are, as might very well be ex- 
 pected from the lapse of time, and the death 
 of witnesses, quite obscure. It ajipears, 
 however, that Clarista and her children were 
 first set aside, and dividiMl by the two sons, 
 Charles and James, lift ween themselves, 
 Then the grown slaves, Stephen, Hose, and 
 Nelly, were set aside, and retained by the 
 
 widow. The rest were appraised by three 
 persons, chosen for that purpose, and divided, 
 with reference to their value, among the eiglit 
 children of the testator. 
 
 The widow remained in the possession of 
 the land, and the three negroes: who In- 
 creased l»efore her death to thirteen. On the 
 11th of Septend)er, 1.S44. she executed a vol- 
 untary deed, by which she conveyed Rachel, 
 one of this stock, with her future increase, to 
 (ieorge H. Smith, a sou of her son, William, 
 in trust, to perndt her to have the use and 
 protits of the property during her life, with 
 an absolute reversion of it t<j himself uptm 
 her death. With this exception, she remain- 
 ed in pt)ssession of the slaves, retainetl by her 
 in the division of 18.'J1, with their increase, 
 until the 2d of Augu.st, 184S. when she died 
 intestate. 
 
 At the time of her death, all her children, 
 who were also the children of the te.-<tator, 
 were alive, except three of her sons. Charles. 
 Benjamin and William, who predeceased 
 her: — the first leaving five, and each of the 
 other two, leaving six children. 
 
 Immediately before the death of the widow. 
 Abram Snnth, who had hitherto neglected to 
 qualify under his ai)pointment. as one of 
 his father's -executors, came from Alabama, 
 where he resided, ancl on tiie 10th of July, 
 1848, (the mouth preceding his mother's 
 death) qualified, and obtained letters te«<ta- 
 
 *247 
 inentary: *and, upon his mother's death as- 
 sumed control of the thirteen negroes in her 
 possession at her decease, claiming them as 
 parcel of his father's estate, and divisible 
 under his will among his then surviving 
 children, in exclusion of the issue of Charles. 
 William and Benjamin, the three sons who 
 died during the life of the widow and life- 
 tenant. 
 
 James Smith, the other surviving son of 
 the testator, took out letters of administra- 
 tion on his mother's estate, but represented 
 the negroes as no part of it; and gave bond 
 corresponding only to some inconsiderable 
 articles of property, which he regarded as 
 constituting the whole estate. 
 
 In this state of affairs, the children of the 
 deceased sons, Ciiarles, William and Benja- 
 nun, filed this bill against the surviving chil- 
 dren of the testator. 
 
 The object is, to be let into a share of the 
 ttdrteeu slaves, with their increase, and also 
 to a rateable share of their hire, since Abram 
 Smith interfered witii them; and to have 
 partition of the lands. 
 
 There is no doubt about the latter. The 
 will was not sullicient to extend to it, being 
 attestetl by only two witne.sses. The land 
 is, therefore, intestate property, and the par- 
 ties may. upon application, liave a writ for 
 the partition of it. Such I understood to be 
 their iniiiressiou at the hearing, and, there- 
 fore, nothing was said in argument upon the 
 subject of the realty. 
 
 101
 
 *247 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 The contest related exclusively to the ne- 
 groes. 
 
 The plamtiffs in this bill represent, that 
 the division of 1831 was made under an agi'eo- 
 luent of the following character: — that the 
 children were to take, and did take, the 
 slaves allotted to them, absolutely, and in 
 advance of, and by way of substitution for, 
 the division which the will directed to be 
 made at their mother's death ; and that, in 
 consideration of being allowed by her to have 
 this anticipated enjoyment of their rights, 
 they agreed, that she should retain the three 
 negroes, left in her hands, as her absolute 
 property in perpetuity. If this was so, there 
 is no doubt, in my judgment, that the chil- 
 dren being all of age at the time, were com- 
 petent to make such a stipulation: and the 
 
 *248 
 ^consequence must be, that the slave, convey- 
 ed to George H. Smith, was well conveyed, and 
 that those, remaining in Mrs. Smith's posses- 
 sion, must be distributed among all the par- 
 ties, as part of her intestate estate. 
 
 The plaintiffs further contended at the 
 hearing, that, even if the slaves retained 
 by Mrs. Smith did not become her absolute 
 property, but remained as parcel of the tes- 
 tator's estate, they, as issue of the three de- 
 ceased sons, were not effectually excluded 
 from an interest in them. 
 
 All of the defendants, except Dupont and 
 wife, insist, that by the partition of 1S;51, the 
 slaves allotted to the children were intended 
 to be, and were, vested in them absolutely ; 
 but that those retained by the widow were 
 retained by her for life only, being merely 
 reserved from the partition, and subject to 
 be partitioned at her death under the will; 
 which, tiiey further contended, excluded the 
 issue of pre-deceased children from partici- 
 pating in them. 
 
 Dupont and wife, while they agree that 
 the children of AYilliam, Charles and Benja- 
 min are excluded by the will, and the interest 
 in the property confined to the surviving 
 children of the testator, deny that any part 
 of the property divided in 18.31, was intended 
 to vest absolutely in any of the parties, (wid- 
 ow or children) who received it ; and con- 
 tend, that all the property was to be brought 
 back, and fully and effectually divided under 
 the will upon the widow's deatii. 
 
 It is reasonable to suppose, indeed It is 
 stated in some of the pleadings, that, in con- 
 sequence of the unequal increase, and im- 
 provement in value, of the slaves received by 
 the children, it may now be to the advantage 
 of some of the parties to have a re-partition 
 of them; and, hence the different grounds 
 assumed by the defendants. 
 
 I shall tlrst dispose of the construction of 
 the testator's will. 
 
 Do the words of the will intend to exclude, 
 and do they effectually exclude, the issue of 
 such of the testator's children as died before 
 the expiration of his wife's life estate? 
 102 
 
 I was, at the hearing, possessed of some 
 *249 
 such notion as this: — *that, by the words of 
 the will preceding this very extraordinai'y 
 clause, under which the issue are supposed to 
 be excluded, a life estate is given to the wid- 
 ow, followed by a plain remainder to all the 
 children, without any condition or contin- 
 gency, and, therefore, importing to be a vest- 
 ed remainder in all of them. If such a re- 
 mainder had been created, without more, the 
 interest in it must have attached, upon the 
 death of the testator, in all the children, all of 
 whom were then alive ; and upon their subse- 
 quent death, their shares would have passed 
 by operation of law to their children, as an 
 incident of the property given. This would 
 certainly have been the result, if the extraor- 
 dinary clause referred to had not been subse- 
 quently inserted in the will. The question, 
 then, was upon the effect of that clause. It 
 does not (in express terms at least) revoke 
 the shares previously given to the children, 
 or any of them. Nor does it limit the shares 
 of any of them, who might happen to die 
 before the period of division among them, to 
 the survivors. But leaving their interest."* 
 precisely in the condition in which they 
 were placed by the words whicii created 
 them, — it simply declares that their issue, 
 whom the law declares entitled to their prop- 
 erty, upon their death, shall not take it. 
 
 A man may give his property to whom he 
 pleases ; but when he does give it, he has no 
 right to arrest the operation of the la\\' upon 
 the property as given. A man may dispose 
 of his property as he pleases ; but he has no 
 right to say, that the law shall not operate, 
 where, and so far as, he makes no disposi- 
 tion. A man may make a will, if he pleases, 
 or let it alone ; but if he makes one, it is ac- 
 tive, only as far as it disposes of his proper- 
 ty: it is inoperative where it attempts a re- 
 peal of the law, applicable to the dispositions 
 actually made. 
 
 If a testator should content himself with 
 a single clause, cutting oft" his heirs, (as the 
 phrase is,) and declaring that none of his 
 kin should have any of the property, — with- 
 out declaring to whom it should go — his will 
 would be simply nugatory, and no will. Be- 
 ing no legislator, his attempt to repeal the 
 law would be a mere usurpation, and only 
 innocent, because ineft'ectual. 
 *250 
 
 *There are many authorities upon this sub- 
 ject, if authority were needed. Some of 
 them are referred to, I think, in Hall v. 
 Hall. The subject is also slightly considered 
 in the first report of Gordon v. Backman, 
 where the testator, to fortify an attempted 
 emancipation, and to take away the right of 
 the next of kin to defeat it, cut them off by 
 his will. The emancipation was judged of 
 by the direct dispositions relating to it ; and 
 the next of kin, notwithstanding the attempt 
 to exclude them, took the property.
 
 CRO.SSBY V. SMITH 
 
 I!ut. th<ni_'Ii I have stniff^'ltMl to Mistiiin 
 tlu' idaiiititrss claim, I am afraid I slioultl 
 lu' ixn'iun tun far, if I wt'iv to atnily this priii- 
 ••Iplc to this will. It Is iiiipossiiile tn say, 
 that the testator did not intend to exclude 
 tlie issue. His words, thouiih ohseure and 
 siniruiar in many respeets, are eh-ar enough 
 upon this point. The intention must prevail, 
 if tlie law will alhnv it: and the eonstrue- 
 tion must be upon the wh<»Ie will, taken in 
 at one view ; and n(»t upon its parts eonsider- 
 ed separately. Taking; the clause referred to, 
 in connexion with the preccdin;; dispositions, 
 I am reluctantly comiieiled to admit (hut not 
 witliout some hesitation) that the better con- 
 struction of the whole is, that the cliildren, 
 intended in the prior clauses, were children 
 who should survive the wife. 
 
 Then, it becomes necessjiry to consider tlie 
 • haracter of the division made in 1>S.'51. 
 
 What was the intention of the parties? 
 Was it their intention to take any portion of 
 the slaves divided on that ocaision— either 
 that allotted to tlie children, or that retain- 
 ed by the widow; and if so, which of tliese 
 portions, — out of the oi)eration tif the testa- 
 mentary clause, by which it was subject to 
 division at the widow's death? 
 
 In the obscurity of the testimony, as to 
 what was expressly ajji-eed upon, it may be 
 useful to look, in the first place, to the condi- 
 tion of the parties and of the i)ropcrty at the 
 time, as represented by the witnesses. 
 
 It is said that the widow was ninety years 
 old, or upwards, in IMS. when she died.' She 
 
 *251 
 must, therefore, have lieen over *seventy, 
 when this division of IS'Al was made. It ap- 
 pears that most of the nej;roes were youufr, 
 many of them incapable of laboring, and that 
 liie few, who by age were capable, eitlier 
 • •ould not, or for want of a l)etter control 
 than their aged mistress was aide to exert, 
 would not, make crops adequate to the sup- 
 port of themselves and the young n«\groes. 
 
 It Is natural to suppose that, under these 
 circumstances, she should desire to 1h> reliev- 
 ed of the supernumerary and unproductive 
 slaves, and to retain the others— thus in- 
 < reasing their efficiency towards her own sup- 
 port. 
 
 Her children are represejited to have been 
 in circumstances, which, though perhaps not 
 strictly needy, were far from warranting 
 them In taking the young negroes, and as- 
 smuing the expense of rearing them, unless 
 they received them as their own property. 
 
 The division was effected (except as to 
 Clari.sta— wlio, by-the-bye, had two children, 
 at least, as clogs upon her,) by leaving the 
 uiost efficient, and probaI>ly most reliable, ne- 
 groes, in the lumds of their aged unstress — 
 :is was .said by some of the parties, "for her 
 support:"— while the young and inefficient 
 and expensive class were appraised, and di- 
 vided among the children. 
 Not a witness is able to recollect any ex- 
 
 1 ftress agreement among the parties: and this 
 observation applies as well to the only one 
 of the tliree appraisers now living, as to the 
 rest of the witnesses examined. 
 
 At this distance of time, what are we to 
 make of this? 
 
 Are we to suppose that the children took, 
 or would have taken, the \oung negroes, and 
 incurred the expense and trouble, represented 
 with .so nmch i>robability of truth in some of 
 the answers, of raising them — to be br<iught 
 iiack at any uncertain time to be re-i)artition- 
 ed? If the negroes, whicli they got, were not 
 to be charged t(» them as their own. why were 
 they appraised? 
 
 In a transjictlon of this age, and where 
 there is so little exiiress testimony, and the 
 parties have chosen to leave it in ob.scurity, 
 when they might have made it clear, I think 
 
 *262 
 the ♦.safest course is to hold them to have 
 done, what it was prudent and natural for 
 them to have done under the circumstances: 
 —and I shall conclude, that the children took 
 the negroes as their absolute property. 
 
 Were those retained by the widow, intend- 
 tHl to be relea.sed to her. as her alisolute 
 Itroperty? 
 
 If her delivery of those whicli she gave up 
 to the children, could, under the circumstanc- 
 es, be considered as a purchase of those 
 which she retained— if she lost any thing by 
 the transaction— we might be led to answer 
 this question athrmatively. But it was a re- 
 lief to her. Slie made every way by the 
 transaction, though slie retaininl the three ne- 
 groes under the tenure, tor life onl.v. 
 
 These three were not valued. They were 
 not brought into the division. Tliey were 
 simi>ly retained. If none (»f them had been 
 given uj) by her. all would have remained in 
 her hands, sub.ject to the will. I'art were 
 given up. In the absence of any stipulation, 
 and in the absence of circumstances to ren- 
 der any change of tenure probable, what are 
 we to concUule, but that those retained, were 
 retained subject to the will? 
 
 My conclusion is. that Mrs. Smith never 
 obtained any addition to her interest for life 
 In the slaves left in her hands in l,s;{l. 
 
 That her alienation of those, covered by 
 the deed of 1S44 to George II. Smith, was 
 unauthorized and should be set aside: and 
 that tho.se slaves, together with those remain- 
 ing in her hands at her death, are sulijoct to 
 partition among the children of the testator, 
 who survived her: and it is so decreiMl ; and 
 let a writ go for the partition of them. 
 
 It Is further ordered, that the writs of ne 
 exeat and Injunction mentioned in the plead- 
 ings, (if any were granted) be dissolved. 
 
 And that the parties have leave to apply 
 for a writ for the partition of the land, as 
 intestate property (.f the testator, among all 
 his distributees. 
 
 Each party to pay his own costs. 
 
 103
 
 *252 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 The complainants' appealed, on the follow- 
 ing grounds. 
 
 *253 
 
 *lst. Because his Honor decreed that, by 
 the partition of the negroes of the estate of 
 Samuel Smith between his widow and chil- 
 dren, the widow took only a life estate in the 
 portion allotted to her, and that the same 
 was distributable at her death amongst 
 the surviving children of the said Samuel 
 Smith, according to the provisions of his 
 will: whereas, it is respectfully submitted, 
 that by the said partition, the children sur- 
 rendered whatever right they may have had, 
 under said will, to the negroes allotted to 
 the widow, Sarah Smith ; that the same be- 
 came her absolute property, and were dis- 
 tributable at her death, as her estate, of 
 which she died intestate. 
 
 2d= Because his Honor decreed, that by 
 the following clause of testator's will, "if 
 either of my lawful heirs should die, leaving 
 issue behind them, before a distribution 
 should take place, as I have before mentioned 
 for their issue or heirs not to come in for 
 their parent's share of my property," the is- 
 sue of such testator's children as died in the 
 lifetime of the widow, were effectually ex- 
 cluded, and that the shares to which such 
 children would have been entitled, were be- 
 queathed to the surviving children. 
 
 Whereas, it is respectfully submitted, that 
 there is no limitation to survivors in said 
 will, and that said clause is simply nugatory 
 and inoperative; and the issue of deceased 
 children not theu'eby excluded. 
 
 3d. Because, it is respectfully submitted, 
 that said clause of exclusion is void for 
 vagueness, uncertainty and remoteness; and 
 is contrary to the policy of the law. 
 
 4th. Because a distribution of testator's 
 estate had taken place before the death of 
 any of his children, with their consent, when 
 they were of full age and free to contract; 
 and the period limited in the said will, at 
 which the said clause of exclusion was to 
 take effect, had passed by before the death 
 of any of testator's children. 
 
 5th. Because the decree of his Honor is, 
 in other respects, contrary to law and the 
 evidence. 
 
 F. W. Fickling, for appellants, 
 Treville, Martin, contra. 
 
 *254 
 
 *WARDLAW, Ch., delivered the opinion of 
 the Court. 
 
 This Court is satisfied with the reasoning 
 and conclusion of the circuit decree, as to the 
 character of the partition made in 18.31. 
 
 The remaining question in the case is, 
 whether the will of Samuel Smith gives the 
 residue of the estate to his surviving chil- 
 dren, in exclusion of the children of his 
 three sons who died after the death of the 
 104 
 
 testator and before the death of the widow, 
 when the estate was to be distributed. The 
 negroes retained by the widow in 1831, with 
 their increase, constitute the subject of dis- 
 pute: and the decision turns on the construc- 
 tion of the following clauses of the will: — 
 "the remaining part of my property" (after 
 the life estate in the wife, and some small 
 legacies,) "to be equally divided, at my wife's 
 decease, among all my children:" "one re- 
 serve I wish my executors to enforce, that is, 
 if either of my lawful heirs should die, leav- 
 ing issue behind them, before a distribution 
 should take place, as I have before mention- 
 ed, for their issue or heirs not to come in 
 for their parent's share of my property." 
 The former clause, considered separately, 
 plainly gives to all of the children living at 
 the death of the testator, as tenants in com- 
 mon, a vested remainder, which, upon the 
 subsequent death of any of the children 
 would pass, not to the surviving children, but 
 to the legal representatives of the children so 
 dying. The latter clause, palpably mani- 
 fests the intention of testator to exclude 
 from all share the descendants of such of 
 his children as should die before the period 
 appointed for the distribution of his estate; 
 — but it stops there. It contains no revoca- 
 tion of the shares previously given to the 
 children dying before distribution, but rather 
 recognizes their title by the use of the terms 
 "their parents's shares." It does not give 
 such shares to the surviving children, nor 
 to any other person whatsoever. The lan- 
 guage is simply that of negation and excla- 
 sion, and not of disposition. The expression 
 of the purpose not to give to one person, im- 
 ports no purpose to give to another. It is 
 true, that the construction must be upon the 
 whole will, and not upon the clauses consider- 
 
 *255 
 
 ed separately, but *the addition of a cipher 
 makes no increase of the sum; and a clause, 
 containing no gift, cannot transport a gift 
 to another clause. According to this, the 
 clauses, construed in connection, leave the 
 objects of testator's bounty precisely as they 
 were described in the former clause, unless 
 the naked declaration in the latter clause, 
 that those whom the law appoints to the suc- 
 cession shall not take, be effectual to exclude 
 them. On that point the principle is well 
 stated in the circuit decree: "A man may 
 dispose of his property as he pleases, but 
 he has no right to say, that the law shall not 
 operate, where, and so far as. he makes no 
 disposition." "Being no legislator, his at- 
 tempt to repeal the law would be a mere 
 usurpation, and only innocent because inef- 
 fectual." If a deed of settlement gave one a 
 general power of appointment as to the es- 
 tate settled, and provided that, in the absence 
 of appointment, the estate should go to per- 
 sons therein named : the title of these per- 
 sons would not be defeated, if the only thing
 
 EX PARTE KLIIT.MAX 
 
 In the shape of aiiiMiintiiifiit, weiv the ex- 
 prt'ssioii. l).v him haviiij; th«' power, of his 
 ilissatisCactioii, liowever strong, that they 
 siiould enjoy the estate. So tlie law autiior- 
 izrs a itroprietor to re^'ulate tiie disposition 
 of liis estate, after liis death, l)y positive 
 donations, hut itself appoints to the siieees- 
 sion, if he does not declare the objects of his 
 hounty: and his disapi)roval, l)y Itst'If, sliall 
 not defeat the operation of the law. Negative 
 words do not amount to a .i;ift. 
 
 In (JoiMltitle V. Pugh. Hi P.ro. P. C. 4n4,) the 
 will contained words (if exclusion in reference 
 to the son and heir, and others which were 
 construed by the Court of Kin^c's Pench to be 
 a disposition in favor of the piMsons who 
 were next to the son in the line of descent, — 
 yet tile House of Lords determined that the 
 son was not excluded. 
 
 In Sibley v. Cook, (:5 Atk. oT.S,) Lord Ilard- 
 widie says; "If a man devises a real estate 
 to J. S. and his heirs, and signifies or indi- 
 cates his intention that if .1. S. die before 
 him it should not be a lapsed legacy, yet mi- 
 less he has nominat(>(l another legatee, the 
 heir at law is not excluded, notwithstanding 
 the testator's declaration. So in the beipiest 
 
 *256 
 
 of a personal *legacy to A. though the testa- 
 tor should show an intention that the legacy 
 should not lapse in case A. die before him, 
 yet this is not sutHcient to exclude the next 
 of kin." See Elliot v. l>avenport, (1 I'. Wms. 
 
 In Gordon v. Plackman, (1 Rich. Eq. G.'},) 
 the testator, in pursuance of his purpose to 
 emancipate his slaves, had expressly exclud- 
 ed his next of kin, and the Court said: "It 
 is not in the power of a testator to oust his 
 next of kin of their rights under the law of 
 the land, but by giving anoth(>r direction to 
 his property by legal and valid provisions ; 
 as, for instance, by giving the proi)erty to 
 .some othi'r person, or directing that it shall 
 be employed for some lawful purpose incon- 
 sistent with the rights of his kinsman." The 
 same doctrine was asserted in Lanham v. 
 Meacham, (MS. Col. May, 1850) 4 Strob. Eq. 
 203. 
 
 We are led to the conclusion, that the Chan- 
 cellor was right in the opinion entertained at 
 the hearing: which he afterwards abandoned 
 with reluctance and hesitation. 
 
 It is ordered and decreed, that a writ of 
 partition be issued, to divide the land describ- 
 ed in the pleadings, and the negroes retained 
 by the widow, Sarah Smith, at the partition 
 in 1831, with their increase, among the par- 
 ties; so that the five children of Charles 
 Smith shall take among them one-eighth 
 part; the six children of Benjamin Snnth 
 among them one-eighth part; the six children 
 of William Smith among tht'in one-eighth 
 part; and each of the five children of the 
 testator one-eighth part: that the matters of 
 
 account be referred to the Commissioner: 
 that the costs be paid out of the estate to 
 be divided according to the interest of the 
 parties: and that tlu' circuit decree be so 
 modilied. and in all other respects be affirmed. 
 
 .jolIX.STo.V and l»r.\KI\, CV. concurred. 
 
 I>AR<;AN, Ch.. ab-sent at the hearing. 
 Decree modified. 
 
 3 Rich. Eq. ♦257 
 
 •Ex parte II. W. Kliri'MA.X, A.lin'r. of L. C. 
 
 A. Sclicplcr. 
 
 (Chark'ston. Jan. Term, 1851.) 
 
 [Puhlir Jjmds €==>l(;i».l 
 
 A grant takes elTcct fnini its «lute, and not 
 from the time it is actually delivered to the 
 grantee. 
 
 IKd. Note. — For other cases, see I'nblic Lands, 
 Cent. I)i^'. S 5(M: Dec. Dig. <g;=>l(;S>.l 
 
 [I'uhlic Lnnds <S=>1G9.] 
 
 In 17!(3, grants of certain lands were issued 
 to A. and H. jointly, but were not delivered: A 
 transferred his int<'i('st to P.. and. in 1S17, after 
 P's death, the Legislature, by Act. directed the 
 Secretary of State to deliver the grants to the 
 reiiresentatives of P, which was accordingly 
 done: //(///,. that the grants took effect from 
 their date in 1703. 
 
 [Ed. Note. — For other cases, see Public Lauds, 
 Cent. Dig. S 504: Dec. Dig. <g=>lG!».] 
 
 Before Johnston, Ch., at Colleton, Febru- 
 ary, 1850. 
 
 In September, 1703, grants of tlie Walter- 
 borough, or Island Creek Lands, were made 
 out in the names of Robert (ioodloe Harper 
 and James Pooth Thompson, but were never 
 delivered to them. On the 13th June. 1797, 
 R. (J. Harper transferred his interest in 
 these lands to J. R. Thompson, who, in 
 March, 17t)0, died intestate and without is- 
 sue, leaving his widow, Elizabeth, who some- 
 time thereafter intermarried with Hugh Mc- 
 Pnrney, and his father, James Thonipson, 
 his heirs at law. In December, 17',»:>. James 
 Thompson died intestate and witlumt issue, 
 leaving his widow. Ann Thonipson. as one 
 of his heirs, and his next of kin unknown. 
 In December, 1817, the Ix'gislature passed 
 an Act, entitled "An Act to authorize and re- 
 quire the Secretary of State to deliver up 
 certain grants in his office," in these words: 
 "whereas, Hugh McPurney and Elizabeth 
 ^IcPnrney, representatives of James Pooth 
 Thompson, deceased, have i^etitioned the 
 Legislature, setting forth that the said James 
 Pooth Thompson and Robert (i. Harper, Es- 
 quire, did, in the year 1703, obtain grants of 
 certain tracts of land, lying and being on 
 the waters of Island Creek, in the parish of 
 St. Partholomew's, which grants are yet re- 
 maining in the ofiice of the Secretary of 
 State, who does not conceive himself author- 
 ized to give them out: 
 
 "Pe it enacted by the Senate and House 
 of Representatives, now met aud sitting in 
 
 <g=»For other cases see same topic aud KliY- NUMBER iu all Key-Numbeied Digests and Indexes 
 
 105
 
 *257 
 
 3 RICHARDSON'S EQUITY RErORTS 
 
 General Assembly, and by and with the au- 
 thority of the same. That the Secretary of 
 
 *258 
 State be, and he *is hereby authorized and 
 required, to give out and deliver the said 
 grants to the representatives of the said 
 James Booth Thompson— provided, never- 
 theless, that nothing in this Act contained, 
 shall be taken to deprive any other person 
 or persons, of any legal right or title what- 
 soever: And, provided, also, that the said 
 representatives of James Booth Thompson, 
 shall, on the payment of fifty dollars for 
 every acre lot, or a greater or less sum in 
 proportion to the quantity of land held by 
 any person or persons, now residing in the 
 Village of Walterborough, convey to the per- 
 son or persons so possessed of a lot or lots, 
 a fee-simple estate to the same." (6 Stat. 
 78.) 
 
 The grants were delivered under this Act 
 to Hugh McBuruey and Elizabeth McBur- 
 ney, both since dead. Extensive sales of 
 the Walterborough or Island Creek lands 
 were made some years since, by order of the 
 Court of Chancery, and funds to a large 
 amount, arising from such sales, were in the 
 hands of the Commissioner. The petition 
 in this case, prayed the appropriation of one- 
 half of these funds as assets of the estate of 
 James Thompson, tow'ards the payment of a 
 judgment of L. C. A. Schepler against James 
 Thompson, established by a decree in "D. 
 W. Johnson, et ux. et al. v. Charles H. Le- 
 jnacks, administrator of James Thompson," 
 filed with the petition. 
 
 On the coming in of the Commissioner's 
 report, establishing the facts above stated, 
 and after argument of counsel in behalf of 
 the known representatives of James B. 
 Thompson, who came in under an order of 
 Court, directing proper parties to be report- 
 ed, the Court made the following order. 
 
 Johnston, Ch. On hearing the report of 
 the Commissioner In this case, and argu- 
 ment of counsel, on motion of Mr. Carn, 
 solicitor for the petitioner, it is ordered and 
 decreed, that one-half or moiety of the funds, 
 in the hands of the Commissioner, reported 
 as derived from the sale of the Walterbor- 
 ough lands, originally granted to James 
 Booth Thompson and Robert Goodloe Harper, 
 belongs to the estate of James Thompson, 
 and is applicable to the payment of the 
 judgment of L. C. A. Schepler, set up in the 
 decree made in the case of D. W. Johnson 
 
 *259 
 *and wife et al. v. Charles H. Lemacks, ad- 
 ministrator of James Thompson, referred to 
 and filed with the pleadings in this case. 
 
 And it is further ordered, that the Commis- 
 sioner do pay to the petitioner, H. W. Kuht- 
 man, as administrator of L. C. A. Schepler, 
 the said half or moiety of said funds belong- 
 ing to the estate of James Thompson, as 
 aforesaid, as well as one-half or moiety of 
 
 any other funds which may come into his 
 hands, derived from the sale of the lands 
 aforesaid, until said judgment, together with 
 the interest which has accrued, or may ac- 
 crue thereon, has been fully paid and sat- 
 isfied, and that he pay the costs and ex- 
 penses of this suit out of the fund. 
 
 And it is further ordered, that the Commis- 
 sioner do receive from George Warren, late 
 sheriff of Colleton district, any funds in his 
 hands derived from sales of said lauds, and 
 apply the same as above directed; and that 
 he is authorized and directed to commence 
 suit on any bonds in his hands, given for 
 any portion of said fund. That, applying 
 one moiety of said fund to the judgment of 
 L. C. A. Schepler, as aforesaid, he do invest 
 the other moiety in bonds bearing interest 
 from date, with good personal security, to 
 await the further order of this Court. And 
 it is further ordered, that an account be 
 taken of all sums of money received by Eliza 
 McBurney in her lifetime, for or on account 
 of sales of any portion of the said lands made 
 by her, and that the Commissioner report 
 the state of the fund at the next term of 
 this Court, together with any special matter. 
 
 The defendant appealed, on the grounds, 
 
 1st. Because the funds in dispute, form no 
 portion of the estate of James Thompson. 
 
 2d. Because the decree of his Honor is oth- 
 erwise contrary to law and equity. 
 
 Tracy, for appellant. 
 Carn, contra. 
 
 DUNKIN, Ch., delivered the opinion of 
 the Court. 
 
 The only question presented by this appeal 
 is, whether the grants to Robert Goodloe 
 
 *260 
 Harper and James Booth Thompson, *took 
 effect from their date in 1793, or from their 
 delivery to Hugh McBurney and wife, under 
 the Act of 1817. This precise question was 
 determined by the Constitutional Court in 
 1821, at Charleston, in the case of Hugh Mc- 
 Burney V. Alfred Walter. (aj It was there 
 
 (a) Hugh McBurney v. Alfred Walter. 
 
 IPublic Lands <g=::>169.] 
 
 [Where a grant of land by the state is signed, 
 sealed, and delivered to the secretary of state, to 
 be delivered to the grantee, as provided by act of 
 1785 (2 Brev. Dig. p. 3), such a delivery is as valid 
 in law as if made to the grantee himself.] 
 
 [Ed. Note. — For other cases, see Public Lands, 
 Cent. Dig. § 504; Dec. Dig, <S=5l69.1 
 
 This was an action of trespass to try title. 
 The plaintiff derived title under a grant to 
 Robert Goodloe Harper and James Booth 
 Thompson, dated in 1793 ; and which had been 
 delivered to the plaintiff and his wife, under the 
 Act of 1817. The defendant claimed by adverse 
 possession anterior to 1817. Verdict for plain- 
 tiff and appeal by defendant. 
 
 January, 1821. Colcock, J. A motion for a 
 new trial is moved for on seven grounds: but 
 as the Court have determined the case on a 
 single point, it is unnecessary to state them 
 all. The Judge, in his -charge to the jury, gave 
 it as his opinion that the grant did not take 
 
 106 
 
 <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 VERDTER V. McBURXEY 
 
 261 
 
 ruled, that tlu- ^'raiits took .'(Tt'ct from the 
 <hite — that Miuler the hiw. the (Jovonior, aft- 
 er till" irn'ut seal was atlixitl, "was eiupow- 
 t-red and diroctcd to siiin the same, and there- 
 u|ioii deliver them to the Secretary of State 
 
 *261 
 to *lie delivered to the resiieetive grantees, or 
 tlit'ir order." 'The yraut then," (eoncludes 
 the (\inrt) "after havinj; been siKn»'d and 
 sealed, was delivered to the Secretary to he 
 ih'livered to the rubpective j;rant»'es, and such 
 delivt'ry is as valid in law as if made to the 
 jirantee himself." 
 
 elTcct until the ytar, 1S17. when it was dcliv- 
 rrcd to tin- plaintitT hy virt\i<' of the -Vet <>f tlio 
 lA';;i,slaturc, and this, it is coiiteiKlcd, prcchidt'd 
 the jury from considi-rintr the evidence of pos- 
 session (offered by defendantl anterior to that 
 time: — whereas, the arrant (niudit to ho consider- 
 ed as taking effect from the year IT'.*".. 
 
 It was contended, on the part of the defend- 
 ant, that the jirant could not enure to the 
 hencfit of the grantees in ITJt.'S, heeausc there 
 was a cunditiou precedent to he ijcrfonncd hy 
 them, viz: — iiayiuj; ten dollars per lumdied into 
 the Treasury and the fees of otlice. That the 
 grant had been withheld by the Secretary of 
 State on the.se grounds, and that, therefore, 
 there was no delivery until the year 1S17. when 
 the Legislature directed the Secretary to deliver 
 it. In point of fact, there is no foundation for 
 such argument, for there was no evidence that 
 the grant was withheld trom the grantees, con- 
 sc(|U('iitly. no evidence of any reasons for with- 
 holding it: nor are any stated in the Act of 
 ISIT, and upon a reference to the Acts of the 
 Legislature on the subject of granting lands, it 
 will apjtcar, that in the year IT'.l." there was no 
 l?ounty ni(/ney (as it has b<'en called eommouly) 
 re(|uired by the Legislature ; nor do they make 
 the payment of the fees a condition jirecedent to 
 the completion of the grant. The first clause of 
 the Act of IT'.H, repeals the Acts or clauses of 
 Acts recpiiring money to be paid hy the gran- 
 tees, and declares that all vacant land shall be 
 granted to any citizens applying for the same,^ 
 on i)aviug the fees of ollice. 2 lirev. Dig. 8' 
 
 This grant was made in 170.3, more than two 
 years after the passing of the Act; hut it is 
 .said the clause speaks of vacant land, and 
 this laud had been surveyed in the year 17 — . 
 for James Thompson, the elder, and is calle<l 
 approi)riated land: but there is no such distinc- 
 tion recognized in any of the Acts upon the 
 subject of granting lands, except for the jjcriod 
 of six months, after the expiration of that time 
 from the time of the survey. 
 
 The land is considcMed as vacant land bv the 
 T2i\ section of the Act of 17^5, 2 Hrev. IMg. t>. 
 The first Act directing the mode of granting 
 land in this State, i)asse(l in 17sr», enacted 
 "that any person making a survey of land, shall 
 be allowed six months fi'om the time of survey 
 to obtain a grant, and. in default of obtaining 
 the grant within that time, any person may, at 
 the exi>iration thereof, apply for and obtain the 
 grant for the said land on itaying for it, and 
 any grant obtained for land within six months 
 from the time vi its being snrveyed, (except by 
 the person f(U- whom it is surveyed) shall be 
 ipso facto null and void." Here the period of 
 six months from the time of survey had elajised. 
 Any person, then, according to the provision of 
 the Act, might either oiitain a grant on the first 
 
 *261 
 survey, or again run the *land and take ont a 
 grant. This land, then, in 17'.l.'i, was, to all in- 
 tents and iturposes. vacant land. As to the 
 delivery of the grant, that was also c(implete. 
 
 This decision was recofjmized and re-af- 
 firnu'd by the Court of Appeals at Charles- 
 ton, in April, ls2s, in the ca.se of Simon 
 Verdier v. HukIi McHurney.(^) 
 
 for by the seventh section of the same Act. (2 
 l?rev. I >ig. ,"{1 the mofle of preparing and com- 
 pleting the grant is pointed out. The Survey- 
 or (ieneral is rtMpiired. on the return of entry 
 and plat from the ollice of the Conmiissioner of 
 Locations, to make out a plat, record and cer- 
 tify it : and then transnut it to the Secretary 
 of State, who is retpiired to make out the grant, 
 alllx the great seal to it, and within a given 
 time, and on particular rhiys, lay before his 
 Excellency, the (Jovernor for the time being, all 
 su<-h grants by him prepared as aforesaitl. who 
 is empowered and directed to sign the s.-inu'. and 
 therenpon d»-liver tluMii to the Secretary of 
 State to be delivered to the respective grantees 
 or their order. 
 
 The grant then, after having been signed and 
 sealeil, was delivered to tlie Secretary of State, 
 to be delivered to the grantees; and such a de- 
 livery is as valid in law as if made to the 
 grantee himself. 
 
 The Court, then, being of oiiinion that the 
 grant must be considered as taking effect from 
 its date; and conceiving, that the expression 
 of a contrary opinion, by the presiding Judge, 
 nuiy have induced the jury not to consider the 
 evideni'C offered by the defendant of his posses- 
 sion anteritir to 1.S17; — grant the motion for a 
 new trial. 
 
 Bay. Nott and Johnson, JJ. concurred. 
 Cantt, J. dis.sented. 
 
 (b) Simon Verdier et al. v. Hx'gu McBub- 
 NEY and Wife. 
 
 [Public Lauds <g=>lG9.] 
 
 [Wtiere grants to pubHc lands were regularly 
 laid out in 17&:!. and signed by the proper officers, 
 but were not taken out of the office by the grantee 
 in his lifetime, and for some reason not appearing 
 were withheld from his administrator until 1817, 
 when an act was passed directing their delivery to 
 him in trust for the heirs of the grantee, the title 
 nevertheless vested In the grantee from the date 
 of the grant.] 
 
 [Ed. Note.— For other cases, see Public Lands, 
 Cent. Dig. § 504; Dee. Dig. ©=3l69.] 
 
 In the Court of Ai)peals. 2d April, 1.S2S, 
 Johnson. J. It is conceded on all sides, that 
 on the death of James Hooth Thompson, with- 
 out issue, his estate, in whatever it nmy have 
 consisted, was. after the paynu'nt of his debts, 
 distributable e(iually between his widow (the 
 defendant, Mrs. .NicHurney) and his father, 
 James Thompson; and that the complainants 
 representing the heirs of the father, since de- 
 ceased, are entitled to distribution of what- 
 ever nmy remain, aiul the object of the bill 
 is f<u- an account and <iistribution. so that the 
 princii)al difficulty in the case consists in as- 
 certaining what remains for distribution. 
 
 One entpiiry is as to what real estate James 
 Hooth Thompson was possessed of at the time 
 of his death. 
 
 The complainants claim title for him to the 
 several tracts of land granted to him and H. 
 Ci. Ilari)er, jointly, in 17!);i. and in which Har- 
 per had released to him all his interest. The 
 grants to these lands, it seems, were regularly 
 nuide out and signed by the proper officers, but 
 were not taken out of the office by J. li. Thomp- 
 .son in his lifetime, and, for some reason that 
 does not now ap|)ear, they were withheld from 
 Dr. McKurney, who married his widow, and in 
 her right became administratcu- of the estate, un- 
 til 1S17, when an Act was ])assed dire<tin^' their 
 delivery to him in trust fur the heirs of Jame^ 
 li. Thompson. 
 
 The present village of Walterborough is sit- 
 \iate<l (Ml one of these tracts, which, it is said. 
 
 ®spFor other cases see same topic aud KKY-NUMBEH in all Key-Numbered Digests and Indexes 
 
 107
 
 *2G2 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 *262 
 
 ♦Neither of these decisions lias been re- 
 ported; and the want of acquaintance with 
 them has probably occasioned subsequent 
 misapprehension, and given rise to this ap- 
 peal. 
 
 The motion to reverse the order of the 
 Chancellor is dismissed. 
 
 JOHNSTON, DARGAN and WxiRDLAW, 
 CC, concurred. 
 Appeal dismissed. 
 
 contained one thousand acres, and in this the 
 defendants deny the complainant's right to par- 
 tition, and claim title in the defendant. Dr. 
 Burney, under a purchase made at sheriff's sale 
 for twelve hundred dollars, under fi. fa. issued 
 
 *262 
 against the de*fendants as administrator and 
 administratrix of James B. Thompson, at the 
 suit of William Robertson, for the sum of forty- 
 nine dollars. 
 
 The complainants resist this claim, on the 
 grounds, 
 
 First. That the grants having remained in the 
 office, nothing passed under them until they 
 were ordered to be delivered by the Act of 1817, 
 and that McBurney could hold only upon the 
 terms of that Act, viz: for the benefit of the 
 heirs of James B. Thompson ; and, consequent- 
 ly, that they were not liable to be talien in ex- 
 ecution for debts due by him. 
 
 This question was solemnly settled by the 
 Constitutional Court (Judge Gantt dissenting) in 
 the case of McBtirney v. Walter, decided at 
 January Sittings, 1821, but which, by some ac- 
 cident, appears not to have been published. 
 [See ante, p. 260, note]. That was an action 
 to try the title to the tract on which Walter- 
 borough is situated, and the question arose 
 whether James B. Thompson took under the 
 grant and from the date, or his heirs under the 
 Act of 1817, and it was ruled that James B. 
 Thompson had title from the date of th^ grant, 
 and must be regarded as decisive of this ques- 
 tion. 
 
 (Other questions were considered, and it was 
 ruled that the sheriff's sale to Dr. Burney was 
 void for actual fraud.) 
 
 NoTT and Colcock, JJ. concurred. 
 
 3 Rich. Eq. 262 
 T. C. SKRINE V. H. & W. WALKER. 
 
 (Charleston. Jan, Term, 1851.) 
 
 [Wills <©=>639.] 
 
 Testatrix bequeathed as follows: — "I give, 
 devise and bequeath unto my friend, M. H. my 
 negro woman, Phillis, together with her future 
 issue and increase, trusting that the said M. H. 
 will fully comply with my wishes, respecting the 
 said negro woman Phillis, and her children 
 which may hereafter be born ; and it is fur- 
 ther my will and desire, that the said Phillis 
 should be allowed to keep with her, and have 
 the services of her child, Martha, during the 
 lifetime of the said Phillis ; and at her death, I 
 give, devise and bequeath unto C. W. the said 
 negro girl, Martha:" and the will contained a 
 residuary clause: Held, that there was no such 
 gift of the beneficial interest in Phillis to M. H. 
 and of Martha to Phillis, as vested the legal 
 title of Martha, during the life of Phillis, in 
 M. H; — that the effect of the will was to vest 
 the legal title to Martha, during the life of 
 Phillis, in the residuary legatee ; — and that the 
 recommendation, that Martha be allowed to at- 
 
 *263 
 
 tend and serve *Phillis, amounted only to an 
 address to the benevolence and good faith of the 
 residuary legatee. 
 
 [Ed. Note.— Cited in Ford v. Daniierfii'ld, 8 
 Rich. Eq. lOS. 
 
 For other cases, see Wills, Cent. Dig. § 1522 ; 
 Dec. Dig. (S=r>(J39.] 
 
 The decisions in Carmille v. Carmille, (2 
 AIcM. 154.) and McLeish v. Burch, (3 Strob. 
 Eq. 237,) will not be extended to cases where it 
 was not the intention of the donor to bestow 
 the beneficial interest, subject to a particular 
 charge, upon the donee of the legal interest: 
 Semble. 
 [Slarcs <®=:>13.1 
 
 A slave, although a chattel, is also a person, 
 and, to some extent, capable of the acquisition 
 of property for the benefit of the master. But' 
 a privilege attending the person of a slave, or 
 a trust for him, or an executory contract made 
 with him, cannot be .judicially established, ei- 
 ther for the slave or his master. 
 
 [Ed. Note. — For other cases, see Slaves, Cent. 
 Dig. § 59 ; Dec. Dig. <S=>13.] 
 
 [Specific Performance <g=369.] 
 
 A bill will not lie, it seems, for the specific 
 delivery of slaves, where the plaintiff seeks the 
 delivery, not from the peculiar value of the 
 slaves to himself which damages would not 
 compensate, nor, indeed, for his own use, but 
 for the accommodation of an old negro woman, 
 herself a slave. 
 
 [Ed. Note. — For other cases, see Specific Per- 
 formance, Cent. Dig. § 201 ; Dec. Dig. <g=:>69.] 
 
 Before Caldwell, Cli., at Georgetown, Feb- 
 ruary, 1848. 
 
 This case will be sufficiently understood 
 from the opinion delivered in the Court of 
 Appeals. 
 
 Mitchell, for appellants. 
 Wilkinson, contra. 
 
 WARDLAW, Cli., delivered the opinion of 
 the Court. 
 
 The plaintiff, in this suit, seeks to com- 
 pel the defendants to deliver to him two 
 slaves, Martha, and her child, William. 
 
 The following statement will exhibit the 
 facts upon which the questions in the case 
 depend. Mary Vereen died in 1833, leaving 
 of force her will, bearing date July 17, 1832, 
 which was admitted to probate, November 
 1, 1833. This will contained the following 
 clauses. — "I give, devise and bequeath unto 
 my friend, Mary S. M. Hardwicke, my negro 
 woman, Phillis together with her future is- 
 sue and increase trusting that the said 
 Mary S. M. Hardwicke will fully comply 
 with my wishes, respecting the said negro 
 woman, Phillis, and her children which may 
 hereafter be born ; and it is further my 
 will and desire, that the said Phillis should 
 be allowed to keep with her, and have the 
 services of her child, Martha, during the 
 lifetime of the said Phillis : and at her 
 death, I give, devise and bequeath unto 
 my great-grand-daughter, Catherine LaBruce 
 Walker, the said negro girl, Martha, togeth- 
 
 *264 
 er with her future issue and in*crease, un- 
 
 108 
 
 ®:^For other cases &ec same topic and KEY-NUMBER in all Key-Numbered Digests and Indexea
 
 SKRIXK V. WALKER 
 
 «266 
 
 der the same conditions," Ac: and the will 
 contiiiiK'd otiior clausi's, by which it was 
 provided, that if oithor of the gi-eat->;rand- 
 childrcn of the testatrix (of whom the said 
 Catherine, and the two defendants were 
 alive at her death) should die before beinp 
 married, and before attaining the age of 
 twenty-one years, the property bequeathed 
 to such legatee should go to the survivors: 
 and the said three great-grandchildren were 
 made residuary legatees. The said Cath- 
 erine died about the year is:!!), then aged 
 about ten years, and unmarri(>d. The ex- 
 ecutor of Mary Vereen included Phillis and 
 Martha in his inventory of the estate, but 
 does not mention them in his subsequent re- 
 turns ; nor does it appear that he further 
 intermeddled with them. Martha was from 
 two to six years of age at the death of Mary 
 Vereen, and she has since had issue, the 
 slave, William. 
 
 Mary S. M. Hardwicke died about the be- 
 giiuiing of the year 1S;J7. leaving of force 
 her will, bearing date before Mrs. Vereen's 
 viz, — .January, 2.'>, IS.'Jl. but, apparently, not 
 offered for probate until April. 1847, after 
 the seizure of the slaves by defendants as 
 hereafter mentioned: and this will makes 
 the plaintiff executor and residuary legatee. 
 It appears, by the testimony of four witness- 
 es, that Phillis lived, for some time after 
 Mrs. Vereen's death, with Mrs. Hardwicke; 
 but after her death, if not sooner, Phillis 
 live<l in a house in Georgetown, which was 
 conveyed to her husband, tien, a negro who 
 had also formerly belonged to Mrs. Vereen, 
 and had passed into the ownership of Ben- 
 jandn King, who paid taxes for him as a 
 slave, but permitted him, in most respects, 
 to exercise the privileges of a free negro. 
 The plaintiff lived at Cape Romaine, and 
 Kleazer Waterman was his agent at George- 
 town, but neither plaintiff nor his agent 
 exacted any wages from Phillis or Martha, 
 nor exerted any act of ownershij) over them. 
 Their taxes, as slaves, were iiaid by the 
 owner of Ben. The wishes of Mary Vereen 
 respecting Phillis. with which she trusted 
 her friend. Mrs. Hardwicke. would fidly 
 conijdy, appear pretty plainly by the will 
 Itself to be, that Phillis should be held in 
 nondnal .servitude only : And the acts of 
 the parties jilace this beyond doubt. 
 *265 
 ♦The plaintiff, in his bill, which I suppose 
 was sworn to. as an injunction was prayed 
 for, states, "that the said Phillis having been 
 a favorite servant of her former unstress, 
 and being now aged antl infirm, and standing 
 In ne«Ml of the aid ami services of some young- 
 er person, the plaintiff bad permitt«^l her, 
 from the death of his sister. >rrs. Hardwicke, 
 her last owner, after the example of his 
 said sister, and in compliance with the testa- 
 mentary wishes of Mrs. Mary Vereen, her 
 former mistress, to jiass her life in exemp- 
 tion from labor, with the attendance of her 
 
 daughter upon her person, which he conceiv- 
 ed himself bouml in con.science and good 
 faith to do, though a departure from his 
 legal rights; and to this end he permitted 
 them to live in Georgetown, without any 
 n^iuisition upon the labor of Martha, further 
 than necessary to the support of the mother 
 and infant child, also the subject of this 
 suit." On 31st March, 1.S47, the defendants 
 took possession of the slaves, Martha aud 
 William, and now claim them either as be- 
 queathed to them by Mary Vereen, or under 
 their seizure, as set free by the tenant for 
 lite of Pliillis, in violation of the Act of 
 1800. 
 
 From this state of facts arise the ques- 
 tions, whether the plaintiff has shown good 
 title to Martha and William: and, if this 
 has been done, whether he has forfeitetl his 
 title by any illegal attempt, on the part of 
 himself or tho.se under whom he claims, to 
 emancipate the slaves: and, on the whole, 
 whether this be a itroper case for the ex- 
 traordinary jurisdiction of this Court. 
 
 The process by which the plaintiff deduces 
 title to the slaves is, that the will of Mary 
 Vereen bequeathed the services of Martha to 
 Phillis, for the life of Phillis,— that a gift 
 of the services of a slave is a gift of the 
 slave, — that a gift to a slave amounts to a 
 gift to the owner of the slave, — that Phillis 
 is given to Mrs. Ilaiilwicke, subject only to 
 an ineffectual trust or reconnnendation, 
 which the legatee may or may not execute, — 
 that the gift of Phillis carries to the legatee 
 Martha, as an incident, for the life of Phillis ; 
 and that plaintiff has all the title of Mrs. 
 Hardwicke. If one trusting to common sense 
 could detect no Haw in this reasoning, he 
 would still be reluctant to admit a conclu- 
 
 *266 
 *sion. attained by adding deduction to deduc- 
 tion, and in utter conflict with the intention 
 of the testatrix, and the policy of our law 
 as to slaves. It is obvious that Mrs. Vereen 
 in her will, makes no direct gift of Martha, 
 for the life of Phillis. unless it be to the 
 residuary legatees, the defendants ; and that 
 she was expressing a desire, likely to be 
 onerous and not beneficial to the legatee, when 
 she recpiested that Phillis might be allowed 
 to keep her child Martha with her. It is 
 equally obvious, whatever in this matter may 
 be the decisions of .Judges, the province of 
 whom is to declare the law as it exists, and 
 not to deternune upon the policy of the 
 State; that it is against the course of legis- 
 lation amongst us, that slaves should be 
 practically released from the dominion and 
 oversight of their masters, and be permitted 
 to exercise the privileges of free persons. Of 
 tills, the Acts of 1800, 1820 and 1841, afford 
 conclusive evidence. Nevertheless, if the 
 reasoning of plaintiff be legitimate, we must 
 adopt this conclusion, whatsoever may be our 
 regret. As to the be<iuest of Phillis to Mrs. 
 Hardwicke, the decisions of our Court of 
 
 109
 
 *266 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 Errors in Carmille v, CarmiUe, (2 McM. 
 454,) and McLeish v. Burch, (3 Strob. Eq. 
 237,) establish the title of the legatee, if we 
 may presume here, as in those cases was pre- 
 sumed, that it was the intention of the donor 
 to bestow the beneticial interest, subject to a 
 particular charge, upon the donee of the legal 
 interest. These decisions, however, are not to 
 be extended without grave consideration to 
 other cases, not strictly within their doc- 
 trines. Our attention should always be di- 
 rected to the inquiry, whether it was the 
 purpose of the testator to give to the legatee 
 the beneficial as well as the legal interest. 
 The distinction pointed out by Lord Eldon in 
 King V. Denison, (1 V. & B. 272), although 
 nice is satisfactory. "If I give to A. and 
 his heirs all my real estate charged with my 
 debts, that is a devise to him for a particular 
 purpose, but not for that purpose only. If 
 the devise is upon trust to pay my debts, that 
 is a devise for a particular purpose and 
 nothing more; the effect of these two modes 
 admits just this difference ; the former is a de- 
 vise of an estate of inheritance for the pur- 
 
 *267 
 pose of giving *the devisee the beneficial inter- 
 est subject to a particular purpose ; the latter 
 is a devise for a particular purpose, with no 
 intention to give him any beneficial interest. 
 Where, therefore, the whole legal interest is 
 given for the purpose of satisfying trusts ex- 
 pressed, and those trusts do not in their 
 execution exhaust the whole, so much of the 
 beneficial interest as is not exhausted belongs 
 to the heir ; but where the whole legal in- 
 terest is given for a particular purpose, with 
 an intention to give to the devisee of the le- 
 gal estate the beneficial interest, if the whole 
 is not exhausted by that particular purpose, 
 the surplus goes to the devisee, as it is in- 
 tended to be given to him." This distinction 
 is recognized by our cases. In Carmille v. 
 Carmille, the distinction did not come under 
 discussion, nor, I may remark in passing, 
 could the doctrine of resulting trusts to the 
 heir or next of kin, as to indefinite, inopera- 
 tive or failing trusts, declared in Morice v. 
 Bishop of Durham, (10 Ves. 521,) be applied 
 in that case, which turned upon a deed inter 
 vivos. Judge O'Neall, in delivering the judg- 
 ment, properly sajs, "the case before us 
 stands upon deeds executed, and taking ef- 
 fect, in the lifetime of the intestate, and the 
 case must be considered as if the intestate 
 was himself the complainant, asking that the 
 deeds should be set aside ; and a bill by one 
 claiming to be relieved from his own act 
 done in fraud of the law, could not be sus- 
 tained." 
 
 In McLeish v. Burch, Ch. Caldwell, in 
 the circuit decree, which, as is said in the 
 ultimate decree, is not controverted on this 
 point, remarks, "whenever the expressions 
 manifest an intention that the donee is not 
 to have the beneficial enjoyment of the sub- 
 ject of gift, they will bind the conscience 
 
 110 
 
 of the trustee, and will, in equity, effectually 
 exclude his claim to any beneficial interest." 
 "When a gift is conclusively and absolutely 
 impressed with the character of a trust, the 
 trustee will not, in any event, be entitled to 
 the beneficial enjoyment, although the par- 
 ticular object of the donor's bounty becomes 
 unable to take it." Again, in the final decree, 
 he says: "If the testatrix had not bequeath- 
 
 *268 
 ed the slaves to any *one, but required her 
 executors to perform the trusts by paying 
 them their legacies, and permitting them to 
 live free of service or wages, except what 
 might be sufficient to pay their taxes, it 
 would have constituted a very different 
 case ;" but, as the facts were, "there was 
 nothing upon which the doctrine of indefinite 
 and void trusts, when no personal benefit is 
 bestowed on the executor, can operate, so as 
 to create a resulting trust in favor of the 
 next of kin." 
 
 In Fable v. Brown, (2 Hill Eq. .398.) where 
 the estate was given to slaves, without any 
 direct bequest to the executor, Cb. Harper 
 states the question, "whether this can be 
 regarded as a personal beciuest to the execu- 
 tor, giving the property beneficially to him, 
 and only depending on his friendship and 
 good faith to deal with it as the testator 
 recommends," and comes to the conclusion, 
 that the estate was not given to the execu- 
 tor, and that neither master nor slave could 
 maintain an action against the executor for 
 the legacy given in the case. All of these 
 cases, as the one before us, are without the 
 operation of the Act of 1841. 
 
 The application of these doctrines to this 
 case, is fatal to the plaintiff's pretension, 
 that the gift of the services of Martha to 
 Phillis, for the life of Phillis, amounts to a 
 gift of Martha for the same term to the 
 legatee of Phillis. The testatrix has not 
 given, directly at least, any legal interest in 
 Martha to Mrs. Hardwicke, and she intend- 
 ed for this legatee no beneficial interest in 
 Phillis, much less in Martha. When Mrs. 
 Vereen expressed the desire, "that Phillis 
 should be allowed to keep with her, and 
 have the services of her child, Martha," it was 
 surely not her purpose to constitute Phillis 
 proprietor of Martha, and a proprietor who 
 could transmit title. The words of the will 
 imply that some accommodation or indul- 
 gence, from Martha's company and attend- 
 ance, was designed for Phillis, as a personal 
 privilege to a favorite servant ; but first to 
 convert this privilege into full title, and then 
 to transfer it to IMrs. Hardwicke, is to change 
 the whole substance of the bequest, both as 
 to subject and object. If the wife of my 
 
 *269 
 coachman, both slaves, should *become sick,, 
 during the casual absence of my neighbor, 
 her owner, and I should write a note to his 
 overseer, that the coachman might remain 
 with his wife, and yield her any service;
 
 BARKSDALE v. GAMAGE 
 
 *2-.l 
 
 could it be proteiuletl that my iu'ij;hli<>r hart 
 thereby received my bill of sale of thi' cuach- 
 man? Yet that case tloes not differ from the 
 one before us in priuf-iple. It is not contro- 
 verted, tliat a gift of the use of an inanimate 
 chattel, or of the services of an intelligent 
 i)r sentient chattel, is generally a gift of the 
 chattel : for the use and services of the 
 chattel included all benefit that property in 
 it can atford, and imply the intention of the 
 donor to convey the property. lie is the 
 owner, who is entitled to all the advantages 
 and attributes of owner. But unless the 
 donee be sui juris, and capable of exerting 
 dominion and enjoyment, as he cannot be en- 
 titled to the use and services, he cannot take 
 the chattel Itself, to which these cohere. A 
 bequest of $50 to the horse of another, that 
 the horse might be suppliwl with wholesome 
 provender, would be barren to the horse and 
 his owner, although a bequest to the owner 
 for the use of the horse, might be good. 
 
 A slave, although a chattel, is also a per- 
 son, and, to some extent, capable of the ac- 
 quisition of property, for the benefit of the 
 master. But a privilege attending the per- 
 son of the slave, or a trust for him, or an 
 executory contract made with him, caimot be 
 judicially established, either for the slave or 
 his master. Chancellor Ilarper, in Fable 
 V. Brown, presents the just view of this 
 jnatter: "whatsoever chattels the slave ac- 
 quires, he acquires for his master, and the 
 ma.ster might maintain an action for them 
 in the hands of a stranger. But an execu- 
 tory contract made with a .slave cannot be 
 enforced. No action could be maintained on 
 a bond or note given to a slave." The be- 
 quest to Phillis here, is a voluntary and ex- 
 ecutory contract that she may have the so- 
 ciety and service of her child, and is not an 
 assignable interest. In fact, the legal inter- 
 est in Martha is given to the defendants as 
 residuary legatees, and the recommendation 
 that she might be allowed to attend and 
 serve riiillis, is addressed to their benevo- 
 
 ♦270 
 lence anij good faith. We con*clude that the 
 plaintiff has not shown title to the slaves 
 claimed in his bill. 
 
 This view supersedes the necessity of a 
 full consideration of the question, whether, 
 if the plaintilT had title to the shivt's. his 
 practi<al emancipation of them did not sub- 
 ject them to seizure under the Act of ISOO. 
 If these slaves, when seized by defendants, 
 were not in that condition of dereliction by 
 their proprietors, and irregular emancii)a- 
 tion, intended to be prevented by the Acts of 
 ]S()0 and ISiiO, it would l)e difflcult to specify 
 any case distinctly within the mischiefs and 
 scope of the Acts; but we are restrained 
 from any absolute determination on this 
 point, which depends on the facts, by defer- 
 ence to the judgment of the Chancellor who 
 heard the case on the circuit. The judgment 
 
 of a Chancellor, when exercising the func- 
 ti(»ns of a jury, and settling the weight of 
 testimony, from the manner and character 
 of the witnesses, is entitled to the same re- 
 spect from an ai)pellate tribumil, as the ver- 
 dict of a jury. The Chancellor in this case 
 decides, that the slaves were not in the pre- 
 dicament exposing them to seizure, and we 
 will not reject, however we may distrust, his 
 conclusion from the evidence. 
 
 If both of the ((uestions discussed, as to 
 the title and seizure, had lieen decided in 
 favor of plaintiff, we should still have re- 
 fused to him the .specific delivery of the 
 slaves. This remedy is peculiar to this 
 Court, and is to be exercised with sound, ju- 
 dicial di.scretion. The plaintiff here seeks 
 delivery of the slaves, not from their pecul- 
 iar value to him which damages would not 
 compen.sate, mu', indeed, for his own service, 
 but for the acconuuodation of an old negro 
 w'oman ; and we should have left him to his 
 redress at law. 
 
 It is ordered and decreed that the circuit 
 decree be reversed and the bill dismissed. 
 
 JOHX,STON and DlMvIX, CC, concur- 
 red. 
 
 DARGAX, Ch. I concur in the judgment 
 of the Court in this case, but not in all the 
 reasoning by which it is sustained. The 
 gift of the use or services of a slave is equiv- 
 
 *271 
 alent to giving an ^estate in such slave, 
 whether for life or in fee. Phillis was well 
 beiiueathed to Mrs. Ilardwicke, as the be- 
 quest took effect before the Act of 1S41 wa.s 
 passed. The gift of the services of Martha 
 to riiillls for her life was a becpie.st of an 
 estate in Martha to I'hillis for her life. A 
 gift to a slave operates as a gift to the mas- 
 ter and vests the title in him. Mrs. Ilard- 
 wicke was, therefore, entitled to both I'hillis 
 and Martha, under the bequests of the will. 
 I concur in this decree, on the ground that 
 there was a d«'reli(tion of these slaves on the 
 part of Mrs. Ilardwicke, their legal owner, 
 and that the title was in the defendants as 
 their captors under the provisions of the Act 
 of ISOO. 
 
 Decree reversed. 
 
 3 Rich. Eq. 271 
 
 THOMAS BAUKSDALE pt al. v. EDWARD 
 
 GAMAGE ct al. 
 
 (Charleston. Jan. Term, IS.'il.) 
 
 \PcriH'tiiilirs <S=>4 : Wills <g=560:?.| 
 
 Testator devised as follows: 'I Kive, devise 
 and l)('inii-atli to my daimhters. M. and S. two 
 lots <if land,' v^c. 'to be e(|iially divided hctween 
 tlieiu. and the heirs of tlieir body. Should ei- 
 ther of tliein die without an heir of their Ixuly. 
 then to my surviviu;: children and their issue:' 
 Held, (ll that M. took a fee conditional iu the 
 nioietv of the lots devised to her: and (2) that 
 
 ^=>For other cases see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes 
 
 111
 
 »271 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 the limitation over to the 'surviving children 
 and their issue,' was void for remoteness. 
 
 [Ed. Note.— Cited in Relman v. Robertson, 46 
 S. C. 268, 269, 24 S. E. 187; Dillard v. Yar- 
 boro, 77 S. C. 231, 57 S. E. 841; IloUey v. 
 Still, 91 S. C. 495, 74 S. E. 1065. 
 
 For other cases, see Perpetuities. Cent. Dig. 
 § 26; Dec. Dig. <©=>4; Wills. Cent. Dig. § 1354; 
 Dec. Dig. <©=:3603.] 
 
 [Estates <©=37.] 
 
 An alienation, by tenant in fee conditional, 
 before the birth of issue, does not prevent the 
 reverter to the donor, if the issue, afterwards 
 born, die in the life time of the tenant in fee 
 conditional. 
 
 [Ed. Note.— Cited in Dillard v. Yarboro, 77 
 S. C. 231, 57 S. E. 841. 
 
 For other cases, see Estates, Cent. Dig. § 7 ; 
 Dec. Dig. <S=»7.] 
 
 [Estates €=»7.] 
 
 An alienation after the birth and death of 
 issue bars the right of the donor in the rever- 
 sion. 
 
 [Ed. Note.— Cited in Graham v. IVIoore. 13 S. 
 C. 119; Powers v. Bollwinkle, 33 S. C. 303, 11 
 S. E. 971 ; HoUey v. Still, 91 S. C. 495, 74 S. 
 E. 106.5. 
 
 For other cases, see Estates, Cent. Dig. § 7; 
 Dec. Dig. <©=>7.] 
 
 [This case is also cited in Du Pont v. Du Bos, 
 52 S. C. 261, 29 S. E. 665, as an example 
 of partition as the proper procedure in es- 
 tates in fee conditioned, and cited and af- 
 firmed in Holley v. Still, 91 S. C. 487, 74 
 S. E. 1065.] 
 
 Before Dargau, Cli., at Charleston, Febru- 
 ary, 1850. 
 
 The decree of his Honor the circuit Chan- 
 cellor, is as follows. 
 
 Dargan, Ch. Thomas Bai'ksdale, by his 
 will, dated the 22d day of May, A. D. 1800, 
 inter alia, devised as follows: — "I give, de- 
 vise and bequeath to my daughters, Mary 
 and Sarah Barksdale, two lots of land, front- 
 ing East Bay and corner of Tradd street, to 
 be equally divided between them and the 
 heirs of their body ; shduld either of them 
 die without an heir of their body, then to 
 my surviving children and their issue." 
 *272 
 
 *The property was subsequently divided 
 between the two devisees, and that portion 
 of it which fell to the share of Sarah Barks- 
 dale is the subject of this litigation. She 
 intermarried with Charles Dewar Simons, (a) 
 and there was an antenuptial marriage set- 
 tlement between them, executed on the 25th 
 September, 1807, by which she conveyed to 
 George Edwards and Thomas Barksdale all 
 her estate, including her undivided moiety in 
 the two lots devised to her and Mary Barks- 
 dale, by the will of Tltomas Barksdale, in 
 trust, for the use and benefit of the said 
 Charles Dewar Simons and Sarah Barksdale, 
 
 (o) Charles Dewar (or DeWar) Simons, M. 
 D. was an eminent professor of Chemistry at 
 the time of his death, in the South Carolina 
 College, at Columbia. He was drowned on the 
 21st January, A. D. 1812, in passing through 
 the Hougabook Swamp, below Graiiby, when 
 the waters were unusually high, and was pro- 
 foundly regretted by the whole State. 
 
 during their joint lives ; remainder to the 
 survivor for life, remainder to such child or 
 children of the marriage as should be living 
 at the death of the survivor, and on failure 
 of issue living at the death of the survivor 
 then to the survivor in fee. Charles Dewar 
 Simons and Sarah, his wife, had issue, (a 
 female child, born alive,) which lived but a 
 few days, or hours ; and afterwards, to wit, 
 on the 21st January, 1812, Charles Dewar 
 Simons died, leaving Sarah, his wife, surviv- 
 ing him. and without any issue then living. 
 
 On the 24th September, 1811, there was a 
 partition of the two lots, between Sarah 
 Simons and Mary Barksdale. On the 18th 
 day of March, 1S17, Sarah Simons contract- 
 ed marriage with the defendant, Edward 
 Gamage, and, previous to the solemnization 
 thereof, conveyed, by a deed of marriage set- 
 tlement, to George Edwards and Thomas 
 Barksdale, in fee, all that lot, etc. being the 
 property devised to her by her father's will^ 
 and the subject of this litigation, in trust, 
 for the joint use of the said Edward Gam- 
 age and Sarah Simons, during their joint 
 lives ; remainder to the survivor for life, re- 
 mainder to the child or children of the mar- 
 riage, in fee ; and in default of such child- 
 dren, to the survivor in fee. The said Sarah. 
 
 *273 
 departed this life on *the 30th June, 1841, 
 leaving the said Edward Gamage surviving 
 her ; but without leaving, or ever having 
 had, any issue of the marriage between her 
 and the said Edward Gamage. 
 
 The complainant, Tlaomas Barksdale, is 
 the brother, and the complainants, Sabina 
 Payne and Mary Barksdale, are the sisters of 
 the deceased Sarah Gamage, and are the sur- 
 viving children of the testator. The defend- 
 ant, George B. Edwards, is the son of a de- 
 ceased sister, Elizabeth Edwards, who was a 
 daughter of the te^rtator, and Elizabeth Ham- 
 mond and Charles O. Hammond are the child- 
 ren of Mary Hammond, and grandchildren of 
 Elizabeth Edwards, and, therefore, gfeat- 
 grandchildi-en of the testator, Thomas Barks* 
 dale. 
 
 The foregoing is a statement of the ma- 
 terial facts, and the relationship and posi- 
 tion of the parties. And the question for the 
 judgment of the Court is, which of these 
 parties are entitled to the estate, and in 
 what proportions? This involves the inquiry, 
 as to what estate Sarah Gamage took in 
 this property, under' Thomas Barksdale's 
 will? The first question which appears to 
 me to be proper for discussion is, as to the 
 effect of the words, "and their issue," super- 
 added to the intended limitation, in favor of 
 the testator's surviving chilren. In personal 
 property, a limitation to the survivors of 
 living persons has the effect of qualifying 
 the generality of a gift to the first taker, 
 and his issue, or the heirs of his body ; so as 
 to make the first taker have a life estate, and 
 
 112 
 
 <g=;»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 BARKSDALE v. GAMAGE 
 
 *27G 
 
 the issue, or heirs of the IkmI.v. take as pur- 
 chasers, by way of reniaiuder. Rut where 
 words of inheritance or succession are super- 
 added to the limitation in favor of siirvivors, 
 who are to take after a sjeneral failure ef tlie 
 issue of the first taker, such issue cainiot 
 take as purclia-sers. The ulterior limitation 
 (tver, in such a case, would, itself, fail for 
 remoteness, and, tlu'ri'fore. cainiot impart 
 such a restrictive modilication to the words, 
 heirs of the btKly, or issue, as to make them 
 mean heirs of the liody, or issue, livinj: at 
 the death of the first taker. 2 Fearne Con. 
 Kem. (Smith's* m. p. JSSo. Massey v. Hud- 
 son, 2 Mer. irts. Postell v. Tosteli, Bail. E<|. 
 390. Wliere the linntation to survivors has 
 
 *274 
 the effect of reducing the estate ♦of the first 
 taker to a life estate, and of makiiii; his 
 issue purchasers, it must he to the survivors 
 simi)ly ; as in Stevens v. I'atterson. (I>ail. 
 Eq. 42.) De Treville v. Ellis, (Bail. E»i. 40). 
 It mu.st appear that the testator contem- 
 plated that the survivor should succeed per- 
 sonally to the estate, and not take a trans- 
 missible interest. 
 
 The limitation in Thomas Barksdale's will 
 can, then, have no effect upon the estate giv- 
 en to his daughter, Sarah. And the tpiestion 
 recurs, what estate did .-^he takeV My t>pin- 
 ion is, that she took a fee conditional, and I 
 so adjudge. If the limitation intended by the 
 testator to liave l)een created in favor of his 
 surviving children had been such as would 
 have been valid as an executory devise, graft- 
 ed upon a fee simi>le, then the (piestion would 
 have arisen, wliether such an executory de- 
 vise would be operative, when grafted upon a 
 fee conditional. And I should have held that 
 it would not. in conformity with my decision 
 in Buist v. Dawes [4 Strob. Eij. :>7|. now be- 
 fore the Court of Errors. If the estate he 
 once admitted to be a fee conditional, it nuist 
 have the effect of cutting off' all remainders 
 and executory devises. Such an estate must 
 expire upon its own natural etllux. It has 
 certain characteristics inseparable from it, to 
 destroy which would be to destroy the estate. 
 Upon its natural ternnnation, there nuist be 
 a reverter to the donor, or his heirs. If there 
 be issue born alive, capable of inheriting tlie 
 estate, the tenant in fee conditional has the 
 right of alienation. And if he does not alien, 
 tlie estate must descend per forniam »loni. 
 The two first of the.><e attributes would neces- 
 sarily be. and the third might be, destroyed 
 by allowing a remainder or an executory de- 
 vi.se to be limited upon a fee conditional. 
 And this would be to destroy the only distin- 
 guishing marks which tlie estate possesses. 
 But this (luestion does not necessarily arise, 
 and I pass on. 
 
 Mrs. Sarah Ganiage took a fee conditional, 
 under the will, and by lier first marriage she 
 had issue, l)orn alive, capablo of inheriting 
 tlie estate. This event entitled her to alien- 
 ate the estate. There were two alienations 
 
 3Ricu.Eq.-8 
 
 by her, for valuable consideration— for I 
 regard Iioth the deeds of marriage settle- 
 
 *275 
 ♦ment in that light. One of these was be- 
 fore, and tlie other afti-r the birth of i.ssue. 
 The latter was after the issue had died. An 
 alienation, either before or after the bii-th of 
 the issue, is sufficient to bar the rights of 
 tho.se are to take iter formam doni. and tt» 
 make the title of the purchaser valid. But 
 if the alienation is before the birth of issue, 
 and then the issue die before the tenant in 
 fee conditional, who has alienatt'd. or if the 
 alienation be after the birth and death of the 
 issue, this does not prevent the reverter t<» 
 the donor. Bac. Abr. Tit. Estate in Tail: 
 Plow. 241; 1 Cruise Dig. s;', ; 1 Coke, (iiy 
 Thomas) .')!(). 
 
 The only rjuestion which I am to consider 
 is, whether the nusband, Edwanl damage, 
 is entitled to hold and enjoy, as tenant by the 
 courtesy, rhis <'state, of which his wife was 
 seized during their marriage, as a tenant In 
 fee conditional. This last is an estate of in- 
 heritance, and courtesy will attach upon it 
 where the necessary conditions exi.st. "When 
 a man marries a woman seized at any time 
 during the coverture, of an estate of inherit- 
 ance in .severalty, in copanenary. or in 
 common, and hath issue by her born alive, 
 and whidi might, by possibility, inherit the 
 same estate as heir to the wife, and the wife 
 dies in the lifetime of the husband, he holds 
 the lands during his life, l)y ciairtesy." 4 
 Kent's Com. 27; Paine's Case. S Coke. G7. 
 Charles Dewar Simons might, if he had sur- 
 vived his wife, have held this estate by the 
 courtesy; but the defendant. Edward (Jam- 
 age, not having had is.sue by his wife, is not' 
 entitled to set up any such claim. 
 
 The decree of the Court is. that the real 
 estate described in the pleadings reverts to 
 the right heirs of the testator. Thomas P.arks- 
 dale, to be divided among them, jure lepre- 
 sentationis. It is further ordered antl de- 
 creed, that the said estate be divided into 
 four equal parts, and that the complain- 
 ants do each take one of the .said four e<iual 
 parts; that the remaining fourth part be 
 again divided into two equal parts, one of 
 which is to lie assigneil to (Jeorge B. Ed- 
 wards, and the other to Elizabeth llanunond 
 and Charles (). llanunond, eiiually to be di- 
 vided betwiHMi them. 
 
 *276 
 
 *It is further ordered and decreed that the 
 defendant, Edward (Jamage. account for the 
 rents and profits of the saiil real estate, from 
 the death of the said Sarah (ianiage, to wit, 
 the 3(»th June, A. I). 1841, and that it be re- 
 ferred to one of the masters to state the ac- 
 count. 
 
 It is further ordered and decre»'d. that the 
 rents and profits be divided among the heirs 
 of the testator, in the same manner and pro- 
 liortions as the corpus of the estate is herein 
 directed to be di%ided. 
 
 113
 
 *276 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 The defendant, Edward Gamage, api>ealed, 
 upon the followuig grounds, viz: 
 
 1. That his Honor, tlie Chancellor, erred 
 in ordering an account of the rents and prof- 
 its, received hy Edward Gamage since the 
 death of Sarah Gamage, and in ordering a 
 partition of the premises among the right 
 heirs of Thomas Barksdale, the testator. 
 
 2. That the Chancellor erred in decreeing 
 that Mrs. Sarah Gamage did not take a fee 
 simple in the said premises, upon the birth 
 and death of an heir of her body. 
 
 3. That the decree was, in other respects, 
 contrary to the correct construction of the 
 testator's will, and to equity. 
 
 DeSaussure & Son, for appellant. 
 Yeadon & Macbeth, contra. 
 
 DARGAN, Ch., delivered the opinion of the 
 Court. 
 
 From the view which the Court has taken 
 of this case, it is unnecessary to discuss some 
 of the questions which have been elaborately 
 argued at the bar. The construction given 
 to the will of Thomas Barksdale, is believed 
 to be correct. The limitation over to the tes- 
 tator's surviving children, in the event of 
 Mrs. Gamage dying without issue, is void 
 for remoteness. The words, "and their 
 issue," superadded to the devise in favor 
 of the surviving children, indicates an 
 intention, on the part of the testator, not 
 to confer a personal benetit on the surviv- 
 ors as such: but that if they should be 
 dead on the failure of the issue of Mrs. 
 Gamage, the issae of liis surviving chil- 
 
 *277 
 dren should *represent them and take the es- 
 tate in that event. This is an attempt to 
 create an estate in remainder, to take effect 
 after an indefinite failure of issue, and after 
 the natural eftlux of the precedent estate of 
 inheritance devised to Mrs. Gamage. The 
 limitation to the surviving children of the 
 testator is void for remoteness, and the de- 
 vise to Mrs. Gamage (Sarah Barksdale) 
 stands unaffected by it. The devise, then, is 
 to her, and the heirs of her body: the techni- 
 cal import of which words is to create a fee 
 conditional. No more appropriate and sig- 
 niflcant Vvords could have been employed for 
 that purpose. For a fee conditional is de- 
 fined to be "a fee restrained to some particu- 
 lar heirs, exclusive of others: donatio stricta 
 et coarctata ; sicut certis han-edibus, quibus- 
 dam a successione exclusis: as to the heirs 
 of a man's body, by which ouly his lineal de- 
 scendants were admitted : or to the heirs 
 male of his body, in exclusion both of collat- 
 erals and lineal females also.'' 2 Bl. Com. 
 110. 
 
 There is no objection, whatever, in point 
 of policy, to the estate in fee conditional. 
 I think it subserves a useful purpose. At 
 all events, it is in no disfavor. It is only 
 within a recent period, however, that it has 
 been recognized by judicial authority to ex- 
 
 114 
 
 ist in South Carolina. No earlier case ex- 
 ists in which such estates were so recognized 
 than Jones ads. Postell & Potter, (Harp. 92, 
 A. D. 1S24). Beyond this period, we may ap- 
 peal in vain to our Reports and judicial rec- 
 ords for any decision or discussion illustra- 
 tive of the rules and principles which govern 
 these estates. In the mother country, they 
 were abolished, or so modified, by the statute 
 de donis conditionalibus, as to deprive them 
 of all those distinctive attributes which they 
 possessed at common law. This celebrated 
 statute, so important in its bearing upon the 
 institutions of landed property in England, 
 and, I niay say, upon the form of Govern- 
 ment and the political destiny of that great 
 country, was passed 576 years ago. The 
 great body of the common law, in all its 
 ponderous and majestic propoi-tions, has 
 been built up by judicial decisions and the 
 commentaries of eminent jurists since that 
 period. Subsequent to that time, there has 
 
 *278 
 been but little discussion in English *courts, 
 and in the works of English writers upon 
 law, on the subject of estates in fee con- 
 ditional: because, with the exception of es- 
 tates by copyhold tenure, (to which the stat- 
 ute de donis did not apply,) no such estates 
 exist in their system of jurisprudence. For 
 this reason, we have only the scanty ma- 
 terials afforded by the early common law 
 writers, to throw light upon this subject, 
 whenever a question like the present arises 
 in our courts. The information, however, 
 which we derive from this source, slight as 
 it is, is sufficient to enable the Court under- 
 standingly to decide the question now be- 
 fore it. 
 
 Mrs. Gamage, (then Sarah Barksdale) by 
 the will of her father, Thomas Barksdale. 
 being seized of an estate in fee conditional, 
 and lieing about to contract matrimony with 
 Charles Dewar Simons, on the 25th day of 
 Seiitember, A. D. 1807, conveyed the said 
 estate in fee to trustees, to the uses of her 
 marriage settlement, which she entered into 
 with the said Charles Dewar Simons. The 
 marriage was shortly afterwards duly sol- 
 emnized ; and tiiere was issue of this mar- 
 riage, namely, Mary Moncrief Simons, who 
 was born about the 20th July, 1S08, and liv- 
 ed only a day or so after birth. On 21st 
 January, 1812, Charles Dewar Simons died, 
 without leaving issue, and leaving his wife, 
 Sarah, (afterwards Mrs. Gamage) surviving 
 him. On this event (it was jirovided by the 
 terms of the deed of marriage settlement,) 
 the trustees were to stand seized of the es- 
 tate, for the use of Mrs. Simons in fee. The 
 statute of uses having executed the use in 
 her, she was again vested with the legal ti- 
 tle in the estate. 
 
 On the eve of her second marriage (with 
 the defendant, Edward Gamage) she, by a 
 deed of marriage contract, again conveyed 
 the estate to trustees to be held for the joint
 
 BARKSDALE v. GAMAGE 
 
 »-;8i 
 
 use of the said Etlwnnl Giuiia«o and Sarah 
 Simons, his intendi'd wife, duilii;,' tlioir jdiiit 
 lives: remainder to tlif survivor: n-maiiider 
 to tlie (liildren of tlie marriayt- in fee: and, 
 In default of such rliiid ,,r cliiidrcn. to tlie 
 survivor of the principal i.artics to thf ((mi- 
 tract in fee. On the ::()th June. 1S41, Mrs. 
 Gamafi:e died, witiiout having had issuf by 
 
 ♦279 
 her second marriaw, and *leaviii- tiie said 
 Kdward (;amai:e surviving' lu-r. And the 
 said Kdward (iama-e. who is one of the de- 
 fendants, claims tile whole of the estate in 
 fee, by virtue of his survivorship according 
 to the terms of the deed of marriaf;e settle- 
 ment. 
 
 The conveyances of Mrs. (;ama^'e. in the 
 way of marriajre settleiiie;>t. were, each of 
 them, to all intents and iiurposes. an aliena- 
 tion, in a manner and form which would 
 not only cut off the descent per forniani 
 doni to her own issue, hut would defeat the 
 reverter to the testator and his heirs: Pro- 
 vided that, under the circumstances of the 
 case, she had the riirht to convey the fee. 
 In the circuit decree. I held this lan.u'ua^'e: 
 "An alienation, either before or after the 
 birth of issue, is sufticient to liar the rijrlits 
 of those who are to take per forinam doni, 
 and to make the title of the i»urchaser valid! 
 But if the alienation is liefore the liirth of 
 issue, and then the issue die before the ten- 
 ant in fee conditional wlio has alienated: 
 or if the alienation be after the birth and 
 death of issue, this does not prevent the re- 
 verter to the donor." The first proiiosition 
 in the preceding sentence is true, and is well 
 sustained liy the authorities: namely, that 
 where the alienation is before the birth of 
 issue, and issue is subsequently horn and 
 dies durinj: the life of the tenant in fee con- 
 ditionid. the reverter of the dr»nor is not 
 tlicieb.N prevented. But the jiropo.sition 
 which a.ssert.s. that the same result follows, 
 ill a case where tlu-re is issue born which 
 <lies, and there is an alienation after the 
 birth and death of such issue, is not .so sus- 
 tained, and was founded upon ji misconcep- 
 tion of the state of the autlKuities ui)oti this 
 subject. Tlie distinction is nice. and. ap- 
 parently. Mil)itrary: but yet is found to be 
 in iiarniony with the j,'eneral rules of hiw 
 in re;:ard to estates ujioii condition. On ref- 
 erence to these rules, and upon .1 <;ireful 
 examination of the authorities the conclu- 
 sion is, that where there is an .-ilieiiation iie- 
 fore the birtli of issue, the sulise.pient birth 
 and death of issue, does not defeat the ri;.'lit 
 <|f the donor in tlie reversion. IIeii<-e the I 
 first deed of niarria.i.'e sett lenient was inoji- 
 erative for this purpose. I'.ut where the 
 alienation is sul seipieiil to the birth and 
 
 *280 
 death of issue, as in the case of the *last 
 
 deed (.f marriase .settlement, the ipiestion 
 I>resents it.self in a different aspect. 
 
 I'mler the jmrely military .system of ten- 
 ures, that existed under the earlier Kiufis 
 of the Xornian dynasty, all feuds were 
 Rranted for the life of the feudatory ..nly 
 (2 Bl. Com. 5.")). In process of time they 
 were ext«'nded beyond his life: ami at 
 len^'th to the heirs of his body: and. in .some 
 Instances, to his lieirs general. The fee con- 
 ditional is a remnant of tlie.se earlier ten- 
 ures. "It was called a fee conditional, by 
 reason of the condition expre.s.st.,! or implied 
 in the donation of it. that if the donee died 
 witiiout su<h particular la-irs." (of his IxMlyi 
 "the land should revert to the donor." But 
 if he had su«h heirs "it sluaild remain to 
 the donee." (2 Bl. Com. IKM. "Now we 
 must ob.serve" says Sir William lilackstone. 
 (-' Com. 110) "tliat when any condition is 
 performed, it is thenceforth entir«'ly j:one ; 
 and the thin;; to which it was before annex- 
 ed, becomes thenceforth absolutely and whol- 
 ly unconditional." So that, as .soon as the 
 ^'rantee had issue born, his estate was sup- 
 posed to become absidute. by the iierform- 
 ance of the condition; at least for these 
 three puriio.ses:— 1. To enable the tenant to 
 alien the land, and thereby to liar not only 
 his own issue, but also the donor of his in- 
 terest in the reversion : 2. To subject him 
 10 forfeit it for treas(»n ; which he could not 
 do. till issue born, longer than his own life: 
 :{. To empower him to char^'e the l.-ual with 
 rents. &c. The fee conditional, it would 
 thus appear, (to the extent laid down in the 
 passage cited) is not different from other es- 
 tates on condition; in regard to which, a 
 fundamental rule is. that when the condition 
 is once performed, it is thenc,-f,.r\v;ird gone 
 forever. 
 
 Mrs. Carnage having had issue by her first 
 marriage with Charles Dewar Simons, had 
 thus performed the condition annexed to her 
 estate, before her alienation of it by her 
 deed of marriage c(»ntract with Kdward 
 Gainage. By this deed, the land was con- 
 veyed to trustees, to be held for the ti>^e of 
 Kdward (ianiage in fee. uiion the condition 
 of his being the survivor, and tlien- being no 
 
 issue of the rriage. This contingency has 
 
 lia|.iieiie<l. The statute has executed the use 
 
 *281 
 in him. jind he is *tlie sole projirietor of the 
 land, tile partition (.f which is soii"bt in 
 the bill. 
 
 It is ordered mid decreed tluit the circuit 
 decree be rever.^e.l. and that the bill be dis- 
 missed. 
 
 .TOILV.STOX. DIXKLN and WAKI d-.V \V, 
 Vi\ coiiciirreil. 
 I )ecree reversed. 
 
 115
 
 *281 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 3 Rich. Eq. 281 
 
 GEORGE BUIST, Adm'r James D. Sommers, 
 V. HUGH P. DAWES and J. I. WARING, 
 
 Ex'ors John W. Sommers, and Others. 
 
 (Charleston. Jan. Term, 1851.) 
 
 [Wills €=5S7.] 
 
 Testator, after disposing specifically of some 
 few articles of iiisisnificaut value, gave several 
 small pecuniary legacies, concluding as follows: 
 "and all the rest of monies coming to me from 
 the estate of my father, or from any other 
 quarter, I give and bequeath to" J. S.; there 
 was money, and nothing else, coming to testator 
 from the estate of his father; Held, that the 
 above residuary clause embraced only monies 
 due to testator, and did not embrace a contin- 
 gent interest in lands and negroes. 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. § 1282 ; Dec. Dig. <©=587.] 
 
 [Appeal and Error <@r::3llS0.] 
 
 Defendant, in whose favor a circuit decree 
 had been pronounced, and from which an ap- 
 peal was pending, consented that the bill 
 should be amended, so tliat an objection to the 
 decree, not taken on the circuit, might be con- 
 sidered in the Court of Appeals; the Court 
 of Appeals remanded the case to the Circuit 
 Court, that the matter might first be consider- 
 ed there ; Held, that the order remanding the 
 case, virtually opened the circuit decree, and 
 that defendant, on an appeal from the next cir- 
 cuit decree, could not claim the benefit of it as 
 a subsisting decree. 
 
 [Ed. Note. — For other cases, see Appeal and 
 Error, Cent. Dig. § 4658 ; Dec. Dig. <®=3ll80.] 
 
 [Election of Remedies <©=>1.] 
 
 Wherever two rights are alternatively creat- 
 ed, or given, either in express terms, or by con- 
 struction, the party to whom they are given is 
 entitled to only one of the two, and must elect 
 between them ; but after he has made his elec- 
 tion he is bound, and will not be allowed to 
 elect again, unless he can shew some equitable 
 circumstances entitling him to retract the choice 
 he has made. 
 
 [Ed. Note.— Cited in Powers v. McEachern, 7 
 S. C. 300. 
 
 For other cases, see Election of Remedies, 
 Cent. Dig. § 1; Dec. Dig. <©==>1.] 
 
 [Election of Remedies <%-z:=>\A.^ 
 
 If the two rights are legal rights, after an 
 election has been made, (and it is sulticient to 
 constitute such an election at law that one has 
 been taken, though it was not taken as an alter- 
 native, or by way of choice between the two,) it 
 operates as a complete legal bar by way of es- 
 toppel against the claim of the alternative. 
 
 [Ed. Note. — Cited in Glover v. Glover, 45 S. 
 C. 55, 22 S. E. 789. 
 
 For other cases, see Election of Remedies, 
 Cent. Dig. § 10; Dec. Dig. <©==>14.] 
 
 [Descent and Distrihution <©=^67.] 
 
 The right to dower and tliirds are both 
 legal rights, and the acceptance of one (whether 
 intended as a waiver of the other or not,) is a 
 bar, at law and in equity, to the claim of the 
 other. 
 
 I Ed. Note. — Cited in Evans v. Piersou, i) Rich. 
 12; Glover v. Glover, 45 S. C. 54, 22 S. E. 
 7oJ); Lavender v. Daniel & Harmon, 58 S. C. 
 137, 36 S. E. 546 ; Kennedv v. Kennedy, 74 S. 
 C. 545, 54 S. E. 773. 
 
 For other cases, see Descent and Distribution, 
 Cent. Dig. § 202; Dec. Dig. (S=>67.] 
 
 [Descent and Distribution <£;=>(;7.] 
 
 A party will iidt be allowed to retract an 
 electi.on once made, unless upon grounds of 
 
 equity shown to exist, by evidence inheient in 
 the circumstances or extrinsic. 
 
 [Ed. Note. — For other cases, see Descent and 
 Distribution, Cent. Dig. 8 205; Dec. Dig. <S=> 
 67.] 
 
 *282 
 
 [Descent and Distribution (q^^^GI.I 
 
 *lu 1819 J. S. died intestate, leaving a 
 widow; at his death he was in possession of 
 an inconsiderable estate, and was considered in- 
 solvent, but had a contingent interest in a 
 large estate; in 1820, the widow recovered a 
 sum of money in lieu of dower in a plantation, 
 of which J. S. had been seized; the widow 
 afterwards died, and, in 1848, the contingent 
 interests of J. S. became vested,— and, on bill 
 for settlement of his estate, the representatives 
 of the widow claimed her distributive share 
 thereof: — Held, tliat the acceptance of dower by 
 the widow in 18i;0, was a bar ty the claim. 
 
 [Ed. Note. — For other cases, s?^e Descent and 
 Distribution, Cent. Dig. § 205; Dec. Dig. <§;=> 
 67.] 
 
 [Descent and Distribution <&=367.] 
 
 Held further, that the representatives of the 
 widow were not entitled to retract the election 
 made in 1820, and take her distributive share, — 
 making compensation for the dower received. 
 
 [Ed. Note. — For other cases, see Descent and 
 Distribution, Cent. Dig. § 205; Dec. Dig. <©=» 
 67.] 
 
 Before Diinkin, Cli., at Charleston, June, 
 1850. 
 
 For a full understanding of this case, as 
 now reported, reference must be had to the 
 first decision in the ease, as reported 4 
 Strob. Eq. 37. 
 
 Dunkin, Cli. It has been heretofore ad- 
 judged, that on the demise of John W. Som- 
 mers in January, 1848, without issue living 
 at his death, the complainant, as tlie legal 
 representative of James D. Sommers, de- 
 ceased, was entitled to the personal proper- 
 ty which passed under Edward Tonge's will. 
 It was also in proof, that at the death of 
 James D. Sommers, in 1817, intestate, his es- 
 tate, under the Act of 1791, was distributa- 
 l)le as follows, viz.: one moiety to his Avidow, 
 Susan B. Sommers, and the other moiety 
 equally between his brother, John W. Som- 
 mers, and his sisters, Henrietta Rowand 
 and Mary Buist. 
 
 Thomas R. Waring, one of the defendants, 
 is the administrator of Susan B. Sommers, 
 afterwards Susan B. McDow, deceased. The 
 circuit decree had directed a distribution of 
 the personal estate among such persons as 
 answered the description of distributees of 
 James D. Sommers, at the time of his death, 
 or their legal representatives. This estab- 
 lished or declared the right of Thomas R. 
 Waring, as administrator, to one moiety of 
 the estate. 
 
 Subse(iuently an amended bill was filed, 
 by consent, in which it was suggested, that 
 the legal representative of Mrs. McDow, 
 formerly the widow of James D. Sommers, 
 was not entitled to any portion of this prop- 
 
 *283 
 erty, inasmuch as she had claimed and *had 
 been allowed her dower in his real estate. 
 
 116 
 
 @=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 BUIST V, DAWES 
 
 *1>Sb 
 
 Upon the flonth of Iht liusbniid, a widnw is 
 oiititlftl oitlipr to cliiim Iht <(muiiioii law 
 riiiht of (lowiT. or to tak«' tlic imtvisioii 
 made for lu'r in lien of dower, by liis will, 
 if lie died testate, or the share allotted to 
 her hy the Act of 1701. if he died Intestate. 
 In either case, the widow lias lier elect ion. 
 She is entitled to a full knowled^;e of the 
 condition of the estate before she shall be 
 reipiired to ele.t. And so liberal has been 
 the construction of the Court, tliat, in a 
 case of i>eculiar circumstances arisinj; on 
 the Duke of Monta^'ue's will, the House of 
 Lords decided that this ri;;ht of election 
 lasted tifty years. IJeaulieu v. ('ardi;:an, 
 O; r.ro. P. C. 2:'>2.) Alth.ai^'h a i>arty lias 
 actually made an eli'ction. yet if the choice 
 lias been made in iirnoranoe of tlie real es- 
 tate of the funds or under a misconception 
 of the extent of the fund elect«'d by liim, 
 such elec-tion shall not be conclusive »ui him. 
 (L' Storey's E(|. § lOOs.i 
 
 Tlie Act of 1701 expressly declares, that the 
 provision therein made for the widow, shall, 
 if accepted by her. be considered as in lieu 
 of. and in bar of. dower. (5 Stat. 163.) So 
 this Court, acting on its own principles, 
 would not permit a widow to recover both 
 dower and thirds in the same estate. She 
 is in the same situation as if her husband 
 had executed a will making provision for 
 her, but expressly in lieu and bar of dower. 
 She is, in botli cases, put to her election. 
 Nor is a widow in a different situation from 
 any other person jtreferring inconsistent 
 claims. Any party, deriving title under a 
 deed or will, must conform to its provisions, 
 and renounce every right inconsistent with it. 
 Tlie (piestion lias been sometimes discussed, 
 whether this doctrine of election Implied 
 forfeiture, or only compensation. In the lan- 
 guage of Mr. Justice Story. ••Whether a dev- 
 isee, electing against the will, thereby for- 
 feits the wliole of tlie benetit jn'oiiosed to liim, 
 <M- so much only as is re(inisite to compensate, 
 by an equivalent, those claimants whom he 
 had disapiiointvd." The learned comnuMitator 
 concludes the better autliority. and more in 
 conformity with the gtMi<>ral principles of 
 eipiity, to lie that "there is not in such case 
 
 ♦284 
 an absolute forfeiture; but there *is a duty 
 of compensation, (at least where the case ad- 
 mits of compensation.) or its etjuivalent." (2 
 Story's i:(i., § losn.) 
 
 It is not doulited that an election may be 
 fletermined by matter in i»ais. as well as hy 
 matter of record. Hut it is not always enough 
 to conclude a party, that he has heretofore^ 
 established a right inconsistent witli the prin- 
 (iples on which he now claims. It must ap- 
 pear that the act was done eo intuitu. "An 
 election can only lie determined by jilain and 
 une<|uivocal acts, under a full knowledge of 
 all the circumstances, and of the party's 
 rights." White's Lead. Cases in Chancery. 
 2sy. In O'Driscoll v. Koger, (2 Des. 200.) 
 
 Chancellor Rutledge declared, in relation to 
 this doctrine of election, that tlie Court was 
 not inclined to deprive a woman of lier legal 
 rights, unless it should be made to appear, 
 that the acts done by her were done "with a 
 perfect cognizance of all her rights." 
 
 The leading case on the (piestion of election 
 is Dillon V. I'aiker. (1 Swaiist. ."."tO.) heard by 
 Sir Thomas I'lumer, -Master of the Rolls. 
 In that case it was urged for the ]iIaintifT. 
 that Sir Henry John I'arker was in Ids life- 
 time bound to elect, and that having accepted 
 property under liis son's will, this determined 
 his eIe<'tion. an<l that the defendant <laiiniiig 
 under Sir Henry, was bound to conform to all 
 the provisions of his .son's will. It had been 
 submitted by Sir Samuel Komilly. in behalf 
 of the defendant, "that the Court must be 
 satisfied that Sir Henry was apprised of the 
 obligation to elect, and of the value of his 
 different rights." The Court say, "The pcunt 
 made by the plaintiff is. that ac<-eptance 
 binds and operates forfeiture without ref- 
 erence to intent. It is said that Sir Henry 
 accepting his son's gift, by that act renounc- 
 ed his own estate; that is not election, but 
 forfeiture. If such is the effect of acceptance, 
 even though in ignorance that it was not 
 competent to the party to retain both benefits, 
 but that, on" taking <ine, the conse(iuence of 
 law was that he renounced the other, then, by 
 inadvertence, without choice, an estate may 
 be lo.st. But, in all cases of election, the 
 Court is anxious, while it enforces the rule 
 of equity, that the party shall not avail liim- 
 
 *285 
 
 self of both his claims, still to *secure to him 
 the option of either; not to hold him con- 
 cluded by e<iuivocal acts, performed perhaps 
 in ignorance of the value of the funds ; a prin- 
 ciple strongly illu.strated by the decision in 
 Wake V. Wake. The rule of the Court Is not 
 fiirfelture, but election; utrum horum." 
 
 Wake V. AVake is reportt>d 1 \'es. Jr. ."..'jri. 
 and was heard by Air. Justice Huller. sitting 
 for tlie Lord Chancellor. A widow had. un- 
 <ler her husband's will, a legacy of £1"2(), and 
 an annuity of £.■?."». She had been paid her 
 legacy, and had received also tlu> annuity for 
 three years. At the ex|ti ration of that time, 
 she filed a bill praying f<u' dower out of her 
 husband's real estate, as well as the jirovision 
 made for lu'r by the will. The devisi>e of the 
 real estate was a son by a former marriage, 
 and was in possession under the will. It was 
 held to constitute a case of election. And 
 it was then insisted on the part of the de- 
 fendant, that the widow had determined her 
 election, by acceptance of the jirovisions 
 made by the will. Hut Mr. Justi<'e Huller 
 overruled the objection. "The point is," 
 says he. "whether she had full knowledge 
 of the circumstances, and of her own rights. 
 If she acted with full knowledge, she should 
 not afterwards deny it." The claim of dow- 
 er was sustained, but the widow was held ac-
 
 «285 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 countable for the legacy, and wliat she had 
 received on the annuity. A note to this case 
 refers to Butricke v. Broadhurst, (id 171.) 
 That was very analogous, in some of its cir- 
 cumstances, to our own case of Wilson v. 
 Hayne, (Cheves Eq. 37.) A widow had en- 
 joyed the provisions made by her husband's 
 will for five years, and then brought a suit, 
 praying to be permitted to take an interest in 
 a trust fund of £2000 under her marriage set- 
 tlement, instead of the estate under the will. 
 Lord Thurlow dismissed the bill, but he de- 
 sired it to be understood, that it was under 
 the particular circumstance that the plain- 
 tiff had stated no ground, no ignorance of 
 the state of the proi)erty, &c., but on the con- 
 trary, it appeared that the fund was a free 
 fund from the beginning ; and that there was 
 no suggestion that the estate was in such a 
 situation as to render it doubtful what the 
 result would be. 
 
 *286 
 
 *A careful review of all the cases makes 
 manifest what Sir Thomas Plumer terms, 
 "the anxious desire of the Court, while it 
 enforces the rule of e(iuity, that the party 
 shall not avail himself of both his claims, 
 still to secure to him the option of either.'' 
 
 Although the statute declares, that the pro- 
 vision therein made for the widow, shall, if 
 accepted, be in lieu and bar of dower, yet the 
 correlative proposition is not put. Nor was j 
 it necessary. It stands upon the acknowledg- 
 ed principles of this Court. A party claiming 
 dower would thereby disturb the arrange- 
 ment of the statute, and quoad hoc, frustrate 
 its provisions. Equity will not permit this, 
 but will put the party to her election. But 
 the Court favors the right to make an elec- 
 tion, and will not permit acts done in igno- 
 rance of a party's rights, to preclude him 
 from this privilege. In this Court, neither 
 the doctrine of estoppels, nor that of for- 
 feiture, is encouraged. Originally the widow 
 of J. D. Sommers had the legal right to one- 
 half of his personalty. It has been so declar- 
 ed by the decree of the circuit Court. The 
 plaintiff seeks to deprive her administrator 
 of this legal right, or to shew that it does 
 not exist in him. Then, says the authority of 
 Dillon v. Parker, p. 38.5. he is bound to make 
 out his case, to establish that the alterna- 
 tive was fairly and fully presented to her, 
 and that she made her election. "The argu- 
 ment," says the Master of the Rolls, "which 
 represents lai)se of time and acts performed 
 as conclusive, without regard to intent, is 
 subject to great ditHculties." 
 
 James D. Sommers died in 1S17. Sometime 
 afterwards his widow intermarried with Wil- 
 liam McDow. Joseph Clarke was a witness, 
 and his testimony is in writing. He states 
 that he was the confidential adviser of Mr. 
 McDow, and had always been so ; that he 
 advised him to institute proceedings for his 
 wife's dower, simply because the late James 
 
 118 
 
 D. Sommers was considered to be insolvent, 
 that he knew of no real estate which he left, 
 except a place on the Jacksonborough road; 
 that he received his instructions from Mr. 
 McDow, and does not now remember to have 
 had any conversation with Mrs. McDdw on 
 the subject. Proceedings were made up in 
 
 *287 
 1820, in the name of *McDow and wife, 
 against the lieirs of James D. Sommers, de- 
 ceased. The dower was assessed at four hun- 
 dred and sixty dollars, and the land sold to 
 pay the assessment. The witness says that 
 he advised the i^roceedings, because, all hough 
 the value and amount of the dower was small, 
 still "it was something to persons in the situ- 
 ation of iMcDow and wife. The claim was 
 made and established ujion his advice to Mr. 
 McDow, for the above reason. Witness had 
 no knowledge of any rights or contingent 
 claims, which they, or either of them. had,, 
 or could have, under the will of Edward 
 Tonge, and he does not believe that either 
 the said William McDow, or Susan B., his 
 wife, had any knowledge or imagination even 
 of any rights under Edward Tunge's will. It 
 seemed to be a set down matter." adds the 
 witness, "not only in the family, but general- 
 ly, that, after the death of the late Mrs. 
 Tonge, the estate covered by said will, would 
 go to and vest in the late John W. Sonuuers 
 absolutely." In a previous answer, this wit- 
 ness says he did not personally know wlieth- 
 er the late William McDow, or his wife, the 
 late Susan B., were familiar with, or appriz- 
 ed of, the will of the late Edward Tonge. "I 
 was quite intimate with them," continues the 
 witness, "and can say that neither of them, 
 to my recollection, ever spoke to me of their 
 rights under said will, as representatives of 
 James D. Sommers. It is evident to my. 
 mind, that they were not aware of any rights 
 under Tonge's will, as representatives of 
 James D. Sonnners, for, if so, Mr. McDow 
 would doubtless have consulted me as to 
 those rights, it having been his uniform habit 
 to consult me upon whatever was of material 
 interest to him." 
 
 The proceedings in dower, to which Mr. 
 Clarke refers, were also put in evidence. 
 Some objections were urged to the irregular- 
 ity of these proceedings: but this Court is of 
 oi)inion, that none of these objections are suf- 
 ficient to invalidate the judgment, or impair 
 its legal efficacy. Assuming Mrs. McDow tO' 
 have been a party, the regularity of the judg- 
 ment cannot be impeached here and in this 
 form, and although the inference from the 
 testimony is very strong, that she. in fact, 
 
 *288 
 knew nothing what*ever of the proc-eedings,. 
 yet, such has been the practice of the Court,, 
 that for the security of titles, this Court 
 must conclude that she was sufficiently made 
 a party. 
 
 The decree of the circuit Court has settled, 
 that James D. Sommers had, at his death, a
 
 BUIST V. DAWES 
 
 ^•:no 
 
 •oontiniErent titlo to nbonf mip hiinilrod mikI 
 thirty iK'^rot's. uikUm- Tonne's will. \Vlietli«>r 
 he liad. or had not. an e(iual interest in the 
 real fstate. is a question yet to l)e adjudicat- 
 ed by tlu' f'ourt of Errors. In rcAMiMKc to 
 tlie itersonalty, the ChanceUor lu'kl. tliat 
 "James I). Souiniers. if now livinj;, would bo 
 the person who would be entitled to take." 
 and decreed, that "distril)ntion be made of 
 the personal property, which is hereby ad- 
 judged to be the estate of the said James D. 
 Sonuuers, aniouir those pei-sons iiarties to this 
 bill, who represent the oharaeter of distribu- 
 tees, at the time of his death, or his. or her, 
 lefxal representatives." James I). Sonuners's 
 widow represented the character of a distrib- 
 utee at the time of his death, and her kwil 
 representative was a party to the proceed- 
 ings before the Court. The amended bill 
 S(iuj,'ht to displace the lesal representative of 
 this distributee, from any ri;;ht under the de- 
 cree, or any share in the distribution, on the 
 ground that the proceedintrs of iSi'O consti- 
 tuted an election, which was irrevocable, and 
 which "forever barred and precluded the 
 said Susan H. Sommers. afterwards McDow, 
 from all claim to any further distriitution. or 
 other share or interest in the e.state of 
 which James I). Sonuiieis died intestate, and. 
 C(inse(ni»'ntly. in the .said James D. Sommers's 
 cnntin^'eiit interests in the real and personal 
 estate under the will of the said Edward 
 TouL'e." 
 
 The doctrine seems to be well condensed by 
 Jndi.'e Johnson, in rinckney v. I'inckney. (2 
 Ivich. i:(|. L':!T.) "The term election, imports, 
 of itself, a rifiht to choose between one and 
 another, or more thing's; and it is impossible 
 to exercise tliat right understandingly. unless 
 tli«' party is fully informed of their relative 
 value, for without it. his judgment, or will, 
 or even his caprice, could not enter into the 
 act of choosing. Hence the well settled rule, 
 that he is not bound to elect, until all the 
 circumstances necessary to enaiile him to 
 
 *289 
 make a deliberate and iliscrimiiiating *clioice. 
 are ascertained; and if he cxcii make an 
 election without it. lie is not iinuud by it." 
 The authority to which he refei's. fully sus- 
 tains the position; and it is in entire accord- 
 
 ■<■ "illi the general principles of this Court 
 
 in adnunistciing ecpiity. If the act insisted 
 on, was not done under circumstances which 
 enabled the party to exercise the right of 
 election understandiiiiily. if lu> was not so 
 informed of the relative value, as to enable 
 him to deternnne utrinn lioriiiii. to choose 
 letween one or the other, the party is not 
 concluded by such act. It is not to be sup- 
 p"ist>d that the widow of James I). Sonuuers 
 should be informed of the exact value of the 
 Tonge estate. Rut had she any knowledge 
 wh.itever of the rights of her deceased hus- 
 band, wliatever they might be. under Edward 
 Tonge's will? Now if sh(> was informed of 
 those rights, and weighing the relative value 
 
 of what was before her, it might with justice 
 Ite .said, that she had made her election. The 
 «'vidence is as direct and positive as can well 
 be achluced, that she had not "even an imagi- 
 nation" of any rights of her husband untler 
 Tonge's will. There is no pnnif whatever, 
 that she knew of the existence of that in- 
 strument. And Mr. Clarke distinctly testl- 
 lies, that tlie exi)ediency of instituting the 
 l)roceedings in dower, was deterndned with- 
 out any reference to any supposed rights of 
 James I). Sonuuers under Tonges will. They 
 were instituted on his advice, and "I had." 
 says he. "no knowletlge of any rights, or 
 contingent claims, which they, or either of 
 them, had, or could have, under the will of 
 Edward Tonge." If the widow of Jas. I). 
 Sonuuers were now alive, might she not say, 
 and has she not proved, "I took my tlower in 
 total ignorance of any rights of my deceaseii 
 husband under Tonge"s will. I made no 
 election in reference to that of which I ha<l 
 no knowknlge. and I ask now to be pernutted 
 to do what I have never yet done." 
 
 Hut there is nuich latitude permitted on 
 this subject; and it arises not only from the 
 unwillingness of this Court to enforce any 
 thing like a forfeiture, but also to protect a 
 party from the consequences of a premature 
 or injudicious choice, or acts which might 
 be construed an election. "The cases have 
 
 ♦290 
 gone so far," *says the Chancellor, in Ilall v. 
 Hall. (2 McC. E(i. 2(J!), liso.) "that after the 
 wife has made her election, and has received 
 benefits under the will, she has been allowed 
 to retract and resort to her legal riglits, when 
 the estate has turned out dift\'rently from 
 what it was believed and stated to he at the 
 time of the election i)rematurely made." 
 Kidney v. Coussmaker, (1L> Ves. i:{.^.) was a 
 very strong case. It was decided by Sir Wil- 
 liam (Jrant, in 180(5. The will had been 
 twice before the Court for adjudication. — 
 in 17!H'. before Lord Thurlow, and in IT!):?, 
 bef(U'e Lord Kosselyn. In the original caus- 
 es, an arrangement had been made, and the 
 widow had deliberately elected to take the 
 estate devi.sed by the will, in .satisfaction of 
 her dower. Sub.se(|ueut events caused the 
 creditors of the husband to prefer a claim to 
 a portion of the estate .so devised, and, in 
 his decree of 1,S()({. this claim was sustained 
 by Sir William Grant. "The consequence is 
 only." says he, "that the widow will not Jh> 
 bound by any election she then made; she 
 mu.-^t he let in now to any of her legal rights: 
 and an enquiry in what estates she was en- 
 titled in dower and free bench: her elec- 
 tion as being made under a mistaken imiu-es- 
 sion, that the creditors were not to make 
 any claim upon those estates, not binding 
 her." So in Adsit v. Adsit. (2 John.s. Ch. 
 451,) Chancellor Kent refers to the princi- 
 ple familiarly. "If the legacy is to l>e taken 
 in lieu of dower, I should think that the 
 defendant is entitled to her election, not- 
 
 iiy
 
 *290 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 withstanding her acceptance of the legacy, 
 for it is evident that she did not, in that 
 case, act with a proper nnderstanding of the 
 consequence of that acceptance, but was un- 
 der mistaken impressions." Tliis indulgence 
 of tlie Court, (If it may be so termed,) con- 
 fers no new rights. It only remits the party 
 to an election between two acknowledged 
 rights. In some cases, the Court has dis- 
 turbed a possession in order to aid a suitor 
 claiming the right of election. But in the 
 case before tlie Court, no possession is sought 
 to be disturbed. No one is required to sur- 
 render property which they have held under 
 the impression or confidence, that the wid- 
 ow's claim was barred by the proceedings of 
 1820. So soon as the right of James D. Soui- 
 
 *291 
 
 mers, or his representatives, *became vesteu 
 by the death of .John W. Sommers, in 1848, 
 the interests of the parties were submitted 
 to the adjudication of the proper tribunal, 
 and the representative of the widow James 
 D. Sommers was declared entitled to a moie- 
 ty of the estate. It is objected, that the oth- 
 er distributees of James D. Sommers were 
 parties to tlie proceedings in dower, and con- 
 sented to the admeasurement of dower. It is 
 not apparent to the Court that they were in 
 any manner prejudiced by that consent. But 
 in any view, the language of Lord Kedesdale. 
 in Moore v. Butler, (2 Sch. and Lef. 268,) 
 breathes the spirit by which this Court is 
 governed. "It is contended," says he. "that 
 James Butler, (under whom the parties claim- 
 ed,) did elect to take under the settlement of 
 1720. But the facts on which this is con- 
 tended are so extremely various, that it 
 would have been impossible to hold him 
 bound, if he could have put the parties af- 
 fected by that claim into the condition in 
 which they would have been, if he liad not 
 done those acts." And so in Dillon v. Park- 
 er, (P.85,) the Master of the Rolls states the 
 disposition of the Court, even in a case 
 where the party himself had accepted bene- 
 fits under the instrument which imposes the 
 obligation of election, if the representatives 
 of the party, who has accepted these lienefits, 
 without explicitly electing, "can offer com- 
 pensation, and place the other party in the 
 same condition as if those benefits had not 
 been accepted, they may renounce them and 
 elect for themselves." In Wake v. Wake, the 
 widow was required to account for the legacy 
 which she had received. In this <'ase, the 
 Court is of opinion, that the representative 
 of James D. Sommers. deceased, is entitled 
 to the share of the personal estate to which 
 his intestate was declared entitled by the cir- 
 cuit decree of Chancellor Dargan, but that 
 he must account for the sum assessed in lieu 
 of dower, with interest thereon, as part of the 
 estate of James I). Sonuners, decea.sed. 
 
 The other question, which it becomes nec- 
 essary to consider arises under the will of 
 120 
 
 Charles Elliott Rowand, the younger. His 
 mother, Mrs. Henrietta Rowand, was a sister 
 of James D. Sommers, and died intestate, and 
 
 *292 
 a widow, in April, 1838. *Charles E. Row- 
 and, Jr., her son, died in Jaiuuary, is;',9. The 
 residuary clause of ids will is as follows, 
 viz: "All the rest of moneys coming to me 
 from the estate of my father, or from any 
 quarter, I give and betiueath to my brother 
 Robert Rowand's family, for their use and 
 support." 
 
 It is a familiar rule, that a will of per- 
 sonalty speaks at the death of the testator. 
 And it is well settled, that the Court is per- 
 mitted to resort to extrinsic evidence for the 
 purpose of ascertaining whether there is 
 anything, and wliat, to which the terms of 
 the will apply. At the death of Charles E. 
 Rowand, Jr., his uncle, John W. Sommers, 
 (was alive, and survived for nine years after- 
 wards. Do the terms, "all the rest of the 
 moneys coming to me from any quarter,"' 
 embrace the contingent interest of the testa- 
 tor, as one of the distributees of his mother, 
 who had been a distributee of James D. 
 Sonuners, deceased? The term "moneys"' is 
 generally applicable to particular species of 
 personalty. But there are cases in which, 
 by force of the context, a more extended 
 signification has been given to it. It has been 
 held to embrace stocks, promissory notes, «fcc. 
 But without some explanatory context, the 
 term must be confined to its proper significa- 
 tion. (1 Jarman, 702; Gosden v. Dotterel!, 
 Cond. E. C. R. 496.) In Man v. Man, (1 
 Johns. Ch., 235,) Chancellor Kent .says, "if 
 the testator uses the word (moneys) absolute- 
 ly, without any accompanying (lualification, 
 it cannot be construed beyond its usual and 
 legal signification, without destroying all cer- 
 tainty and precision in language, and in- 
 volving the meaning of the will in great un- 
 cei'tainty. The difficulty would be to know 
 what precise check to give to the force of the 
 term, after we have once moved it from its 
 seat ; vires acquirit eundo." But in this 
 will the testator has used a qualification, the 
 effect of which is rather to restrict the term 
 to its original and proper signification. The 
 expression is, "moneys conung to me from 
 the estate of my father, or from any quar- 
 ter." Moneys coming to me, means money 
 due and owing to me, "money to which I 
 have a right and ought to receive." At the 
 death of the testator in January, 1S39, could 
 
 *293 
 these terms be applied to the interest, *what- 
 ever it might be, in the lands and negroes at 
 Tongeville? In Gosden v. Dotterell, the vice 
 Chancellor refused to enlarge the meaning of 
 the term, although by so doing, he w^as satis- 
 fied he would effectuate the intention of the 
 testator. But in this case the Court is con- 
 vinced, from the terms used, that the testa- 
 tor here intended only what the law implies ;
 
 lUIST V. DAWES 
 
 *295 
 
 and that, as to this interest, fhas. K. Row- 
 iiiul, Jr., diet! intestate. 
 
 It is ordered and decreed, that distribution 
 be made of the personal e.state, adjud;:ed to 
 l>e tlie estate of James D. Sommers, deceased, 
 upon the i)rinciples declared in tliis decree. 
 Parties bciiiK at liliertj' to apply fur such 
 further orders as may be necessary. 
 
 From this decree an appeal was taken, on 
 the fjrounds: 
 
 1. That M<I)o\v and wile liavini,' elected 
 to take, and havinir actually taki'U in money, 
 Mrs. McDow's dower in the estate of her 
 tirst hu.sband, James D. Sonmiers, both her 
 and his rei)resentatives are iiound by that 
 election, and are debarred liy tlie attachment 
 of Mr. McDows marital riirlits, by lapse of 
 time, and otherwise by law, from now re- 
 calling the same. 
 
 2. That the residuary clause in the will of 
 Chs. E. Howand. the yonuiier, extends to and 
 embraces the interest of the said Chs. E. 
 Rowaud, the younger, in the Tongeville in-op- 
 erty, real and personal. 
 
 Yt«adon, Petigru, for appellant.s. 
 Munro, contra. 
 
 JOHNSTON, Ch., delivered the ..pinion of 
 the Court. [ 
 
 Little need be added to what the Chancel- 
 lor has said, in his decree, in relation to the ! 
 construction of the (so called i residuary | 
 clause of Charles E. Rowand's will. i 
 
 This testator was entitled, under his fa- ; 
 ther's will, to the annual interest, for life. ! 
 of one-tenth part of a certain porti<ui of the i 
 father's estate, which, under the directions ' 
 of the will, was sold, and the proceeds vested 
 for his benefit. And besides what arreara;;es 
 of this provision might Ix? due him, at his 
 death, there was nothing coming to him from 
 
 *294 
 
 his father's estate. So that *this money, and 
 what little might be, accidentally, due to 
 liim from other quarters, was ail the money 
 be had to dispose of. 
 
 Accordingly we tind that the specific sums 
 disposed of by him in his will, amounted, in 
 the whole, to only the sum of ."f.'UtO: and even 
 the.se small legacies were given with expres- 
 sions of distrust whether there wcniltl be 
 Jnoney enough to satisfy them. 
 
 In his will, after disposing specificallj* of 
 some few articles of insignificant value: he 
 proceeds as follows: 
 
 "I leave Rev'd. Arthur Buist the sum of 
 $200, should there be a sufficiency, after some 
 or all my delits are jiaid. 
 
 "Should there, also. l>e a sulliciency. I 
 leave to the Ladies Henevolent Society the 
 ^um of $50, to be paid them by my executor. 
 
 "I leave to my nephew, C. E. Rowand 
 Drayton, .$.30; and all the rest of nionies 
 coming to me from the estate of my father, 
 or from any other (luarter, I give and be- 
 
 <iueath to my brother Roliert Rowand's fam- 
 ily, for their u.se and support. " 
 
 The word nu)nies. must i>e understood ]u*re 
 in its ordinary meaning, of cash, coin, bank 
 notes, or other circulating: medium, unless 
 there is .something in the context of the will, 
 or in the existing circumstances, to shew that 
 it was employed in a different sense. 
 
 In looking to the extrinsic circinustances, 
 we sliouid not be justified in applying the 
 Word used by the testator to any thing but 
 money, unless in that survey we discover 
 that there was no money, to come to the te.s- 
 tat(»r from his father's e.state, Imt that .some- 
 thing else was coming from that estate to 
 which the term money might l)e applied, in 
 a secondary, or less olivious .sense. 
 
 But, when we discover that money was 
 coming to him, and nothing else, we are 
 obliged to say that the reference of the 
 testator, was to money, and to nothing el.se. 
 
 Neither does the context of the will lead 
 to any other conclusion. 
 
 The clauses immediately prece^lini: the 
 *295 
 clau.se in question *relate to money: or be- 
 quests of money: — and it is oliviously of 
 importance, that from tlu'se, he proceeds im- 
 mediately to disjiose of the rest of the monies 
 due hlm.(rt)- The word re.st here vnidoubtedly 
 lefi'rs to the rest of that subject, which he 
 was engaged in disposing of at the time. 
 The interpretation of the word (rest) by the 
 comiection in which it is u.sed, is a rule of 
 interpretation familiar to the jtrofession: and 
 .so far has it l)een carried tliat. in some in- 
 stances, where the residuary words weri' de- 
 scriptive not only of the subjects emiu-aced 
 in the ])rior clauses, but had a general mean- 
 ing taking in other species of property, they 
 have been restricted, by the connexion, to 
 property of a like description with that pre- 
 viously disposed of. Thus, where the resid- 
 uary words would, in themselves, have ex- 
 tended to realty, as well as per.sonalty, they 
 have been .so restricted as to indicate only 
 the rest of personalty, l)ec;uise the prior dis- 
 positions were of personally only.t^) 
 
 This doctrine has, un<loubtedly, been 
 stretched beyond the limits of good sense in 
 some of the cases. But it is founded in good 
 .sense, and is conformable to the usages of 
 mankind: and it is presumed that no man, 
 speaking in the ordinary way of the distri- 
 bution of c«'rtain portions of money, thus 
 and thus, and the rest .so and so, would ever 
 be understood as meaning by this rest any 
 thing else than the re.st of that of which he 
 had been speaking; i. e. the re.st of his mon- 
 ey. How much stronger the evidence of his 
 meaning, when, as in this case, he expressly 
 characterises the residue as money I 
 
 This Court, therefore, concurs in that part 
 of the decree whith relates to this subject ; 
 
 (<i) Ilaynesworth v. Cox, Harp. Eq. 121. 
 (b) Marcbant v, Twisden, (Jilb. Eq. Ca. HO. 
 
 121
 
 ^295 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 and it is ordered that the same be atBrmed, 
 and the appeal dismissed. 
 
 Another part of the decree is, in our view, 
 more doubtful. It is that part of it which 
 establishes a right of election between tlie 
 dower awarded to the widow of James D. 
 Sommers, in her life time, and a distribu- 
 tive part of his estate, which is now claimed 
 in its place. 
 
 *296 
 
 *B.v the will of Edward Tonge, who died 
 in 1809, his estate, real and personal, was 
 given to his wife, during widowhood ; — re- 
 mainder, for life, to his mother ; — remainder, 
 for life, to James B. Perry ; — remainder to 
 such of his issue as should survive him: — in 
 default of such issue, to John W. Sommers, 
 with like limitations; — and in default of is- 
 sue surviving him, — then over, in fee, to 
 James D. Sommers. 
 
 The widow of Tonge forfeited her estate 
 by marriage. The mother took possession 
 and enjoyed the property until her death; 
 upon which it devolved on J. B. Perry. 
 
 While he was yet alive, James D. Sommers 
 died, (about 1819,) leaving a wife, — who, in 
 the latter part of that year, intermarried 
 with McDow. 
 
 Then, in 1821, or 1822, James B. Perry died 
 without issue. 
 
 Thereupon, John W. Sommers took pos- 
 session and enjoyed the property until 1848 ; 
 when he died without issue. 
 
 It was held by Chancellor Dargan that the 
 personal property covered by the will of 
 Tonge, passed over, upon the death of John 
 W. Sommers, to the estate of James D. Som- 
 mers ; and he having died intestate, was dis- 
 tributable among his distributees, of whom 
 his wife, (afterwards Mrs. McDow,) was 
 one. 
 
 But, as far back as 1820, it appears that 
 she and her second husband, McDow, brought 
 suit against the other distributees of James 
 D. Sommers, and recovered about .$400, as 
 a commutation for her dower in James D. 
 Sommers's real estate called Golden Grove; 
 the execution for which was levied on Gold- 
 en Grove ; and that tract, (which was all 
 that existed or remained of James D. Som- 
 mers's real estate, at the time) was sold and 
 conveyed by the sheriff to McDow, at a sum 
 approximating, but somewhat less than the 
 dower assessed. This sale and conveyance 
 took place in December, 1820. 
 
 Mrs. McDow lived until somewhere about 
 1831, and Mr. McDow somewhat longer: 
 but no movement was made by them, or ei- 
 ther of them, or the heirs or representatives 
 of either, towards claiming any further in- 
 
 *297 
 terests In James >D. Sommers's es*tate until 
 after John W. Sommers's death ; which took 
 place, as has been stated, in 1S4S. 
 
 When Chancellor Dargan delivered his de- 
 cree, of which I have spoken, (adjudging dis- 
 tribution,) the fact of this allotment or as- 
 122 
 
 signment of dower did not appear in the 
 pleadings, and was not brought to his view. 
 After the decree was pronounced, but before 
 it came before the Appeal Court, this fact 
 was suggested on the record, by way of 
 amendment to the bill: and the parties pro- 
 ceeded to argue, and did argue, the question- 
 in the Appeal Court, (Jan. 1850,) whether the 
 allowance of dower was a bar to the thirds 
 (c) claimed for Mrs. McDow, or whether an 
 election between the dowe^ and the thirds 
 should still be allowed. As that question 
 had not been heard on the circuit, the Court 
 could not determine it in appeal ; and, there- 
 fore, remanded the cause to the circuit, that 
 it might be heard and determined there; 
 thus opening the circuit decree upon that 
 point. 
 
 In the decree now under review. Chancel- 
 lor Dunkin has entitled the heirs and rep- 
 resentatives of Mrs. McDow, and of Mr. Mc- 
 Dow, (one of the distributees,) to claim the 
 thirds, in her right, out of the estate which 
 fell in upon John W. Sommers's death, pro- 
 vided they repay the sum received in 1820, 
 in lieu of her dower, witli interest. 
 
 And this is an appeal, by all parties, from 
 his decision. 
 
 It may be proper, before proceeding to the 
 questions made by the grounds of appeal, to 
 dispose of a point which was obscurely inti- 
 mated after the argument was closed. 
 
 It is that the parties claiming Mrs. Mc- 
 Dow's thirds are entitled to the beneht of 
 Chancellor Dargan's decree ; that it is to 
 be regarded as still subsisting and unopened, 
 unless the other side shew grounds of equity 
 for setting it aside. 
 
 I can only say that the amendment of 
 the record was made by consent, to come up 
 with Chancellor Dargan's decree, as if the' 
 decree had been made upon the record as 
 amended; and the parties must take the' 
 consequences. 
 
 *298 
 
 *It was made with the express view of 
 submitting the question to the Appeal Court,, 
 whether the assessment and assignment of 
 dower were not a bar, in this Court to the 
 claim of thirds, and whether, under the cir- 
 cumstances, the parties making the claim 
 might not retract, and make an election now.. 
 
 It was so argued, in Appeal, in 1850 ; and 
 the order remanding the cause was made 
 with a view to the discussion and decision 
 of that question. 
 
 It was so argued here, on this appeal ;, 
 and never, until after the case was closed 
 was any intimation given to the contrary. 
 Indeed, I hardly understand, now, whether 
 the point is intended to be made. 
 
 But if it is, there is nothing in it. 
 
 (c) Note b.v his Honor. I have used the 
 word, "thirds," throughout this opinion to ob- 
 viate circumlocution, and designate Mrs. Mc- 
 Dow's distributive share: which was, in fact,, 
 one-half, and not one-third.
 
 BUIST V. DAWES 
 
 *:?oi 
 
 There is no doubt whatever that the ac- 
 ■ceptance of dower, whether iiiteiuh'd as a 
 waiver of thirds, or not, is a War, at law, 
 and in equity, to the claim of thinls. It is 
 made so by the necessary const nution of the 
 statute of 1791; a construction which has 
 been adopted in many cases. 
 
 Can it be doubted, then, that, when the 
 fact is proved that dower has been ai-cepted, 
 tile party acceptinj: it is not equitably enti- 
 tled to retain a divree for its equivalent? 
 I do not mean when this proof is made col- 
 laterally, in a different suit, as in .McDowall 
 V. McI>owall, Bail. Kq. ;}24, but when, as in 
 this case, it is made in the same cause, and 
 made by consent with the express view of 
 testing the correctness of a part of the de- 
 cree in the case. 
 
 Can any one attirni, tiiat if Mrs. McOow's 
 acceptance was intended to have l>een in lieu 
 of thirds, she could e(iuital)ly insist on the 
 decree obtained for tiie thirds, while the case 
 is still pending, and the (piestion open, by 
 consent, and before the Court V 
 
 It is impossible. The dower being ac- 
 cepted, is, — so long as the dowress is not 
 allowed to retract, — a conq)lete bar:— and, 
 tiierefore, a decree for thirds is inequitable 
 and should not be allowed to stand, when 
 the Court retains a control over the sub- 
 
 *299 
 *ject. But the truth is the decree referred 
 to in this case was virtually opened by this 
 Court in 1850. 
 
 The case was presented and argued in ap- 
 peal, in 18d0, as if the amendment had been 
 in before Chancellor Dargan's decree, and In- 
 teri)osed by way of objection to his making 
 the decree he did: — as if he had overruled 
 the objection. This was the light in which 
 this Court viewed the objecti<»n: and it sent 
 the case back, only because he had not, in 
 fact, heard and overruled it. How, then, can 
 it be said that the ease was sent back sub- 
 ject to the decree: when plainly it was sent 
 back to a.scertain whether such a decree 
 should ever have been madeV 
 
 If I am right in tliis, then, upon the merits 
 the only e<juity of the parties in possession of 
 the dower, must consist in a rigiit to retract 
 and elect, if such right can be shewn. 
 
 This was the view taken by the Chancel- 
 lor, as appears by the whole tenor of his de- 
 cree. It is the correct view ; and, if the 
 claimants are not entitled to the election he 
 has given them, they must abid(> by the dow- 
 er as assessed and accei)ted. 
 
 It has been attempted to be siiewn in the 
 argument, that the proceedings at law, by 
 which the dower was allotled, are null and 
 void, in conseipience of defects in the record ; 
 and that, therefore, the amount received un- 
 der the recovery is no satisfaction of the 
 right of dower; and con.seipicntly dower has 
 not been received or accepted. 
 
 If the record were void, it would by no 
 means follow that the s>um of money recov- 
 
 ered as a compensation for dower, though re- 
 ceived under it, was no satisfaction of the 
 dower, and equivalent to a reception of the 
 dower, itself. But the defects pointed out do 
 not vitiate the judirment. We are not to 
 l(X)k behind the judgment for the i»urpo.so of 
 ascertaining whether Mrs. McDow was or 
 was not before the i'ourt, in virtue of a pow- 
 er of attorney executed by her as authorised 
 l»y the statute. It was the business of the 
 Court, Itefore which the cau.sc' was heard, to 
 see that the parties were before it, and after 
 it has given judgnu-nt, we are bound to [ire- 
 sume that it had proper evidence of the fact, 
 before it took jurisdiction. .Miserable would 
 
 ♦ 300 
 be the *coiidition of the comnuniity, if a doc- 
 trine >houbl receive the least countenance, by 
 which solenui judgnii-nts would be converted 
 into ab.solnte nullities, merely because the 
 writ, or the warrant of attorney, which led 
 to them, may have been mislaid or may have 
 perished from lapse of time. 
 
 Neither can the form of the judgment 
 vitiate it. The Court had jurisdiction of the 
 subject matter, and* nmst determine for it- 
 self, (for it was a part of its judicial func- 
 tions in the case,) what judgment was luoper 
 to be given between the parties before it. 
 
 These principles are too well settled to re- 
 quire further consideration. 
 
 TlKMi, the important question, wbicli was 
 considered in the decree, occurs: — whether 
 Airs. McDow's acceptance of the dower pri- 
 eluded the claim for thirds now set up; and 
 whether, a letraction will be allowed, and a 
 right of election given. 
 
 Wherever two rights are alternatively 
 created, or given, either in exjiress terms or 
 by construction, the party to whom they are 
 given is entitled to only one of the two, and 
 nmst elect between them, but after he has 
 made his election, lie is bound ; and will not 
 be allowed to elect, again, unless he can shew 
 some equitable circumstances entitling him 
 to retract the choice he has made. 
 
 There is some difference, in this matter of 
 election, owing to the iiuality of the rights, 
 among which, the election is to be made: — i. 
 e. wlii'lher they are legal or equitable. 
 
 If the alternative rights are legal, that is 
 to .say, if both of them puriiort to vest a legal 
 title in the party to whom tlit\v are given: — 
 though a court of law could not comitel an 
 election, while the matter may have remain- 
 ed executory, yet after an election has been 
 made (and it is suthcient, to constitute such 
 an election at law, (hat one has been taken, 
 — though it was not taken as an alternative, 
 or l)y way of choice between the two): — it op- 
 erates as a comi)lete legal bar, by way of 
 estopi)el. against the claim of the altermitive. 
 The title to that, though it was bef(jre a com- 
 plete legal title, is extinguished. 
 
 Thus, under the statute of u.ses, uses which 
 *301 
 would have been *executed in the husband to 
 
 12Z
 
 *301 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 the extent of creating a tHle to dower in the 
 wife, are prevented from being executed to 
 that extent, by the proviso that the dower 
 shall not be claimed if a jointure was set- 
 tled on her.(d) In such case the acceptance 
 of the jointure is a bar of the dower, and 
 vice versa. The acceptance of the one is a 
 satisfaction of the other, and the legal right 
 or title to that other is extinguished. 
 
 So here: the right to dower, or thirds, is 
 made convertible by the statute of 1791: and 
 both being legal rights proceeding to the 
 wife, if she takes one, her legal right to the 
 other perishes. 
 
 It is unnecessary, therefore, to go into an 
 examination of the argument, at bar, in re- 
 lation to rights of an ecjuitable character, or 
 in relation to elections expressly created by 
 the instrument, or implied by equity in pro- 
 motion of the evident intention ; or in rela- 
 tion to the different degrees of evidence re- 
 quired to prove that an election has been 
 made in the one case or the other. 
 
 I take it that whenever an election has 
 been made, either at law or in equity, it is 
 a satisfaction of the alternative right: and 
 that the party will not be allowed to retract, 
 unless upon grounds of ecjuity, shewn to ex- 
 ist, by evidence inherent in the circumstanc- 
 es, or extrinsic. 
 
 I will assume that equity has a right to 
 put out of the way the legal consequences of 
 Mrs. McDow's acceptance of dower: the 
 question is whether she herself, if now alive, 
 would be allowed, under the circumstances of 
 this case, to retract what she has done, and 
 to elect between her dower and thirds. 
 
 This is not a case where an election re- 
 mains to be made. The right is not execu- 
 tory, but executed. 
 
 It is not a case, even, where dower was 
 taken, irrespective of the alternative right. 
 It is not a case of mere estoppel, but a posi- 
 tive election, intentionally made. Clarke's 
 testimony shews that the attention of the par- 
 ties was di'awn to the alternative of choosing 
 between dower and thirds in James D. Som- 
 
 *302 
 mers's *estate: and that the former was 
 chosen inider his advice, as the more valu- 
 able of the two. 
 
 It is true that the value of the expectancies 
 dependent upon the deaths of James B. Ter- 
 ry and John W. Somniers and their issue 
 may not have been estimated on that occa- 
 sion. But it is probable that the circum- 
 stances upon which that contingent right de- 
 pended were known ; because Clarke speaks 
 of opinions as "set down opinions in the fam- 
 ily" which could only have sprung from a 
 knowledge of the provisions of Tonge's will. 
 
 But a choice made upon a view of interests 
 as contingent, and which were in fact con- 
 tingent at the time of the choice, is a de- 
 
 (d) See Grettou v. Harvard, 1 Swan. 425, 
 note {a) : cited 2 Story Ey. § 1080, (5tli Ed.) 
 
 124 
 
 liberate choice,— a well understood act, — a 
 fair exercise of the judgment: — and a subse- 
 quent result of the contingency, which, if 
 foreseen, would have led to a different choice, 
 — forms no ground for another election. 
 
 It may be affirmed, without hesitation, that 
 Mrs. McDow was right in the choice she 
 made, supposing that she took a deliberate 
 view of the expectancy, and the contingencies 
 upon which it was to depend. Her election 
 was made in 1S20 ; at wiiich time two life 
 estates, of young men, interposed oefore her 
 husband's expectancy: and not only so, but 
 the expectancy was liable to be entirely de- 
 feated by either of those two leaving issue. 
 
 Such an expectancy could have had no 
 marketable value at the time she was called 
 upon to elect between it and her dower: and 
 if she had chosen to abide by the expectan- 
 cy, she could not have sold it and must have 
 starved herself to enrich her heirs. Would 
 that have been the exercise of a sound elec- 
 tion on her part? If the Court were to grant 
 her if now living, a second choice, it must be 
 upon the principle that her first choice was, 
 — at the time it was made, — improvident and 
 mistaken: and I repeat the question: — Was 
 it unwise, improvident, or mistaken? 
 
 But, if a right of election can be revived, 
 the claim nmst be made within reasonable 
 time. Here thirty years have expired ; dur- 
 ing all which time there was a perfect ac- 
 quiescence. Lord Ilardwicke observes in 
 Pawlet V. Delaval, (2 Ves. sen. COS,) that 
 
 *303 
 "facts *and acquiescence are material to de- 
 termine great rights and properties ; and 
 many decrees have been made thereupon in 
 this Court:"' and we see how far our own 
 Courts have gone upon this subject in the 
 cases of Wilson v. Hayne, (Chev. Eq. 37) and 
 Caston V. Caston, (2 Rich. Eq. 1) where 
 elections were held to be conclusive upon a 
 much shorter lapse of time. 
 
 Suppose, however, that Mrs. McDow could 
 insist upon a retraction of her acts ; — can 
 her heirs and representatives claim the same 
 rights ? 
 
 As a general rule privies in the post are 
 bound by all the acts and engagements of 
 those under whom they claim ; and if the 
 latter rested satisfied with their transac- 
 tions, and died without seeking to unravel 
 them, their privies are concluded. 
 
 In Stratford v. Powell, Ball & B. 24, Lord 
 Ch. Manners said: "The utmost I could have 
 done if I had any doubt upon this part of 
 the case," (a question of election, the elect- 
 ing party being dead after having eh>cted) 
 "would have been to refer it to the master,, 
 to ascertain what was most for her advan- 
 tage: — though I never heard of that being 
 done after the death of the wife, or of the' 
 party bound to elect: Here the act and ac- 
 quiescence of Lady Aldborough are suthcieut 
 to bind her and those deriving from her.'' 
 
 In Archer v. Pope, 2 Ves. sen. 525, Lord
 
 JOnXSOX V. CLARKSOX 
 
 *r>06 
 
 Hanlwicke expressod the oiiinion that "if a 
 freeman of London make a will contrary 
 to the custoni, and dies. tln)U>;h the wife is 
 not perhaps executrix ; nor does so strong 
 an act as is done here, hy her proving the 
 will, but has acted in this niaiuier, without 
 declaring one way or the other; the ('ourt 
 will not sufler the representative of the wife 
 to insist on the custom, in contradiction to 
 what was done by her:— and that in cases 
 where, if the wife had bet'ii before the Court, 
 she mifilit have had an election; therefore, 
 if she, has done it, for a short time only, that 
 acciuiescence shall bind her and her repre- 
 sentatives: — and it would be very mischie- 
 vous if the Court should suffer her represen- 
 tatives to take it up in prejudice of the 
 children." 
 
 *304 
 
 *He expressed the same opinion in a num- 
 ber of the reported cases: so that it was 
 well considereil and settled in his mind. 
 
 Upon what principle can it 1h' maintained 
 in tills case, that the privies of Mrs. McDow 
 are entitled to be let in to elect, uidess it be 
 that her election when made was luiwise and 
 to lier disadvantage? We have seen that it 
 was not .so. The privies come in here to elect, 
 upon a contemplation of their own interests, 
 as they now stand, and not upon a contempla- 
 tion of her interests as they .stood at the 
 time she made her election. But it is her 
 electi<ni, and not that of her representatives, 
 which is sought to be set aside: and the true 
 question is whether tlie election made by her, I the ostato, b<Mu 
 with whom the right of election was, was 
 beneficial and satisfactory to her, whether 
 it be otherwise to her representatives or not. 
 
 Being upon the whole, of opinion that no 
 new election .should have been allowed; we 
 are, of course, of opinion that the compen- 
 sation which was given as a condition of al- 
 lowing it, should not have been decreed. In- 
 deed the parties to whom the compensation 
 should have been made, were the creditors of 
 James D. Sommers and not his heirs. 
 
 It is ordered that .so much of Chancellor 
 Dunkin's decree as gives a right to elect 
 thirds, and decrees compensation for the 
 dower; and also (out of caution) that so 
 much of Chancellor Dargan's decree as al- 
 lowed :sirs. McDow, her representatives and 
 distributees, to come in for a distributive 
 share of James D. Sommei-s's estate, be re- 
 versed. 
 
 DARGAN an«l WARDLAW, CC. concurred 
 Decree reversed. 
 
 3 Rich. Eq. *305 
 
 •W. C. JOII.NSOX. by Xoxt Frion.l. v. WM 
 
 CLARKSOX and T. B. CLARKSOX. 
 
 (ChiirlKstoii. Jan. Term, ].s.")l.) 
 
 ri. Wills c=(isl.] 
 
 win. (li.-(l in lS4!t. left of force his 
 liatc LM OctolMi-. 1S4(I, in tin 
 
 Tostiit 
 will, hcarin 
 
 words, to wit:— "After all my debts are paid. I 
 will and boqueatU to ni.v l)rotlier. \V. C. .-ill of 
 my property, on certiiin conditions ni.nle with 
 Inrn. Should he decline takin- it. I will and 
 be<iiieath it to the Itev. \V. I',, on tiie same con- 
 ditions. I appoint my said brother. W. C. my 
 executor:" shortly after testator's ileatii. \V. ('. 
 (pialitied as executor: with the will were found 
 several unattested jiapers sii;ne<l by tiie testa- 
 tor, and bearini: d.ites subsri|u<nt to the date 
 of the will, in whicli lie, tlic testator, expres.sed 
 his desire, and decl;neri it to be one of the con- 
 ditions mentioned in his will, that his slaves 
 should he emancipated, if it coidd be done witli- 
 out evasion of the law, and in whi.h he directed 
 certain Iciiaeies to be paid, and. in a ceitain 
 contini;ency, distribution of his whole estate: 
 to a bill tiled i)y the next of kin of testator 
 claiming that a trust resulted to them. W. C. 
 answered and stated, tiiat he had never, before 
 testator's death, seen r-ither his will, nr any of 
 the papers accompanyiiii; it, "although testatta- 
 had, at diflfercnt times, conversed with him ui»on 
 the first and )iriii(i|)al sub.iect mentioned in the 
 pai)ers accompanying,' his will, (the ein.un-ipation 
 of his slaves) and relied imidicitly upon this 
 defendant's inte-rity for carryin- out his inten- 
 tions as far as he could witiiout practisjnir anv 
 evasion of the law:"— //<■/</.— Th.it no beneficial 
 interest was given by the will to W. C. 
 
 |Kd. Xote.— For other cases, see Wills, Cent. 
 Dig. S l(!i:;; Dec. Di;r. (g=>(;sl.| 
 
 12. Willf, ©=5!)s.l 
 
 That the papers f<iund with the will, hav- 
 ing been executed after the will, and not bein;: 
 attested hy three witne.s.ses, could not i>e receiv- 
 ed in evidence as testamentary jiapers. or as 
 showing the conditions referred to in the will. 
 fKd. Xote. — For other cases, see Wills, Cent. 
 Dig. S 234;. Dec. Dig. <s=5(ts.i 
 
 [3. .Sin res (©=313.) 
 
 That the conditions upon wliirh W. C. held 
 stated in his answer, for 
 the benefit of the slaves of testatur. were void 
 by the provisions of the Act of 1*>41. 
 
 [Ed. Xote. — For other cases, see Slaves, Cent. 
 Dig. S 59; Dec. Dig. <g=>13.] 
 
 [4. Wilis <©=3fiSl.] 
 
 That a trust resulted to the next of kin of 
 testator:— and partition of the estate was or- 
 dered. 
 
 fEd. X'ote. — For other cases, see 
 Dig. S 1613; Dec. Dig. <S=3(isi.l 
 
 [5. Wills <S=>nS. lOS.] 
 
 A paper referreil to in a will, or descril)ed 
 so that there can be no doubt as to its identit.v. 
 becomes part of the will, whether executed or 
 not; l)nt a paper executed after the will, and 
 not attested by three witmsses. can have no op- 
 eration as a testamentary paper. 
 
 I Ed. Xote.— For other ca.ses. see Wills. Cent. 
 Dig. S§ 2.34. 24J»; Dec. Dig. <©=:).s. los.) 
 
 Dunkiii. Ch.. at Chariest. ui. .Imu 
 
 Wills. Cent. 
 
 Befon^ 
 lS.->(). 
 
 The bill .stated that the nnch' of plaintiff. 
 John Clarkson, late of Charleston, departe.l 
 this life in eighteen hundred and forty-nine, 
 having first made and published an instru- 
 ment in the nature of a last will and testa- 
 ment, of which the following is a copy, to 
 wit: "I make the following will and testa- 
 
 *306 
 ment: .Vfter all my deiits *are iiaid, I will 
 and be<iueatli to my brother. William Clark- 
 son, all of my property on certain conditions 
 made with him. — Should he decline taking it, 
 se ) I \vill and be(|neatli it to the Rev. Win. H. 
 
 <£=:»l'"ur other cases see same topic and KliV-NLMBEK in all Key-Numbered Digests aud Indexes 
 
 125
 
 *n06 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 Barnwell on the same conditions. I appoint 
 my said brother, William Clarkson, my ex- 
 ecutor. Witness my hand and seal, this 
 second day of October, eighteen hundred and 
 forty. John Clarkson. [Seal.] 
 
 Signed and sealed in the presence of E. A. 
 Clarkson, H. S. Wilson, C. C. Woodruff." 
 
 That William Clarkson, the executor nam- 
 ed in the said will, duly proved the same in 
 common form, and assumed the duty of ex- 
 ecutor, and took possession of the property of 
 the testator. That the said property con- 
 sisted of a plantation and a large number of 
 negroes, together with stocks and other per- 
 sonal estate ; and that but few, if any, debts 
 remained unpaid; that the devise and be- 
 quest aforesaid was not made to the said 
 AVm. Clarkson for his own use and benefit ; 
 and that said William cannot take the bene- 
 ficial interest in the property, and there be- 
 ing no designation in the will of the persons 
 who are to take, either the whole devise is 
 void for uncertainty, or a trust results for 
 the benefit of the next of kin of the said John 
 Clarkson; and they are entitled to partition 
 both of the real and personal estate of which 
 he died possessed. 
 
 That plaintiff is informed and believes, 
 that the mind of his uncle was in a diseased 
 state in relation to his right to hold his 
 negroes in slavery ; that he spoke from time 
 to time of emancipating them, but never 
 came to any fixed conclusions, and plaintiff 
 apprehends and so charges that the devise 
 and bequest to the said William Clarkson, 
 his brother, was made by the said John 
 Clarkson with a view that the said slaves 
 should, after his death, be removed from 
 this State and be emancipated ; or tliat they 
 should be held in nominal servitude; and 
 plaiutift' expressly charged that the said be- 
 quest is made void by the Act of Assembly 
 to prevent the emancipation of slaves, pass- 
 ed the 17th day of December, eighteen hun- 
 
 *307 
 dred and forty-one ; and that *the said ex- 
 ecutor is bound to deliver up the said slaves 
 to the next of kin. 
 
 That at the decease of the said John Clark- 
 son, his heirs at law and distributees were 
 his two brothers, William and Thomas B. 
 Clarkson, and plaintiff, the only child of his 
 deceased sister, all of whom are now alive. 
 "To the end, therefore, that the said William 
 Clarkson and Thomas B. Clarkson may an- 
 swer the premises ; that the said William 
 Clarkson may account for his actings as ex- 
 ecutor, and may set forth and discover 
 whether he hath accepted the devise and be- 
 quest made to him by the said will; whether 
 the removal of the slaves of the said John 
 Clarkson, or some of them, without the limits 
 of this State after the death of the said John, 
 with a view to their emancipation, was not 
 intended or secured by the said bequest made 
 to him, the said William ; whether there is 
 any secret or expressed trust, that the slaves 
 
 126 
 
 of the said John, or any of them, shall be 
 held in nominal servitude ; whether he claims 
 the said negroes and other property as given 
 to him absolutely, or whether there is any 
 secret or expressed or implied trust or condi- 
 tion accompanying the devise or bequest, and 
 what that is, and what is the evidence there- 
 of ; whether he, the said William Clarkson, 
 does not intend to remove the said negroes 
 from the State, with a view to their emanci- 
 pation, or what disposition he conceives him- 
 self under obligation to his brother's wishes 
 to make of them ; that the said devise and 
 bequest may either be declared void, or a 
 trust for the benefit of the heirs at law or 
 distributees of the said John Clarkson ; that 
 partitions may be made of all and singular 
 the property, and your orator's share deliver- 
 ed him in severalty, and that such other and 
 further relief may be granted as to your 
 Honors shall seem meet. ]May it please your 
 Honors," &c. 
 
 The defendant, William Clarkson, in his 
 answer, after admitting the execution of the 
 will, — the death of testator, — that defendant 
 had qualified as executor, — that plaintiff and 
 the two defendants were the heirs at law 
 and distributees of testator, &e. says— "that 
 he was not present at the death-bed of his 
 
 *308 
 *said brother, the testator, but has under- 
 stood and believed, that when the testator 
 found his death rapidly approaching, he di- 
 rected this defendant's co-defendant and 
 brother, Tliomas B. Clarkson, where he should 
 look for his will, and that the said will was 
 there found, and along with it several other 
 papers bearing several dates, in the words 
 and figures set forth in copies thereof here- 
 with filed as an Exhibit, and marked A. 
 
 "And this defendant further answering, 
 saith, that he never, at any time, induced the 
 said testator to devise his said estate to him, 
 this defendant, by any promise or assurance 
 or undertaking on his, this defendant's, part, 
 that he would carry the wishes expressed iu 
 the said written directions into execution, 
 nor had he ever seen (as far as his memory 
 serves) either his brother's will or any of the 
 papers accompanying it, in his brother's life- 
 time, nor until after his brother's death, al- 
 though his said brother had, at different 
 times, conversed with him upon the first and 
 principal subject mentioned in the papers 
 accompanying his will, and relied implicitly 
 upon this defendant's integrity for carrying 
 out his intentions as far as he, this defend- 
 ant, could, without practising any evasion 
 of the law ; and with a view to so doing, 
 this defendant, after a full consideration of 
 the subject, qualified upon his brother's will. 
 And this defendant further answering, saith, 
 that he has accepted the devise and bequest 
 of the whole of his, testator's, estate real and 
 personal, upon the conditions intended by his 
 testator, and that he, this defendant, is 
 bound to undertake, and is ready and will-
 
 JOHNSON V. CLAKKSON 
 
 *311 
 
 ing to pfrfurm. the sniil ((HKlitioiis. unless 
 prevented li.v this Ildnoralile Court, and these 
 c-onditions he understands to he as foUows: — 
 That he, tliis defendant, is to practise no eva- 
 sion of the law, (as he is so directed hy the 
 memorandum dated .January, 1.S4;5, a eoi)y of 
 which is herewitii tiled in Kxhiitit A,) hut to 
 make application to the Le^;islature of this 
 State, which body alone can emancipate 
 slaves, to emancipate all the slaves heionijin}^ 
 to his brother at his deatii, or to jiive this 
 defendant license and permission to send 
 'Jiem out of this State; and if the said ne- 
 groes he emancipated Ity the Lejiislature, or 
 
 ♦ 309 
 this defendant have the ♦lesiislative license to 
 send them out of this State, then that he, 
 this defendant, shall sell the plantation of 
 his testator, and out of the proi-eeds thereof, 
 to pay five thousand dollars each to two lega- 
 tees named in the said papers, and the bal- 
 ance, with such moneys as his testator left 
 at his death, to divide among the said ne- 
 groes; but if the Legislature, upon such ap- 
 plication made by this defendant, refuse both 
 to emancipate the said slaves or to give this 
 defendant license to remove tliem out of the 
 State, then that this defendant shall sell the 
 whole of the testator's estate, and divide the 
 proceeds into tive e(iual parts, or <jtherwise 
 divide said estate into tive equal parts, to be 
 paid to the said several legatees and objects 
 designated in the said papers, that is, in the 
 memorandum bearing date Fei)ruary. ]s4!>. 
 And he, this defendant, sulmiits to this Hon- 
 orable Court, that he holds the estate of his 
 testator upon the said conditions, and that 
 the said conditions are lawful conditions, 
 and that he, this defendant, is bound and also 
 ready and willing to perform them, and tluit 
 even if the said conditions were unlawful and 
 he could not perform them, his riglit to hold 
 the said estate could not be affected thereby, 
 but would be held by him disciiarged of the 
 condition which he could not lawfully per- 
 form." 
 
 Kxhibit A. 
 
 To William Clarkson.— By my will all my 
 property will come into your hands on certain 
 conditions, or on your declining to take It, 
 into the possession of the Rev. William H. 
 Barnwell, on the same conditions. Some of 
 these conditions I now express In writing. 
 All of my negroes nuist be emancipated, ei- 
 ther immediately or at any time tiie Hev. Wm. 
 II. Barnwell shall think advi.sable. Should 
 immediate emanciiiation be deemed inexpedi- 
 ent, the proceeds arising from the lands and 
 negroes, nnist be placed at interest until they 
 are liberated, and then this accumulated sum, 
 together with the sale of my lands and other 
 moneys not specifically appropriated, shall be 
 given to them, that is, my land and all the 
 proceeds shall be considered their proiierty. 
 
 ♦310 
 If the law for*bidding the emancipation ol 
 
 slaves in .'<outh Carolina is then in force, so 
 that all my negroes nmst be removed, then 
 the husbands or wives of any of nunc belong- 
 ing to other persons, mu.st be purchased from 
 monies of my estate not vested in lands, if 
 there is a suMicient amount, but if there is 
 not a sufticient sum. then .so nun h as is neces- 
 sary in addition, nuist be taken from the sale 
 of the lands. The purchase is only to be 
 made, provided no arrangement can be effect- 
 ed by which the husbands and wives will 
 not be separated. If there is any amount 
 left after the purchase of the negroes and 
 without using the funds arising from the 
 sale of the lands, then two hundred dollars 
 is to be given to the Ladies' Benevolent 
 Society of Charleston, and the remainder to 
 the Domestic and Foreign Missi<»nary Society 
 of the United States of America, provided 
 there is as nuich as six hundred dollars left. 
 But if there is not .so much, then the Dome.s- 
 tic and Foreign Missionary Society is to re- 
 ceive twice as much as the I.Kidies' Benevolent 
 Society of whatever sum is left ; but should 
 there be more, the Ladies' Benevolent Society 
 is only to receive the two hundred dollars, 
 and the Domestic and Foreign Missionary 
 Society the remainder, whatever it may be. 
 I wish (if possible) that the negroes should 
 not be sent out of Americ-a. I will expect 
 you or the Rev. Mr. Barnwell, whoever re- 
 ceives the property, to make a will providing 
 for the emancipation of my negroes, together 
 with their husbands and wives belonging to 
 other persons as stated aViove, if the negroes 
 nuist be sent and remain out of the neighbor- 
 hood. The Rev. W. II. Barnwell must be 
 advised with in every case that I do not de- 
 termine in writing or orally. Whatever oral 
 directions I may give are to lie considered my 
 will in preference to this, although verbal. 
 
 John Clarkson. 
 October 7th 1,840. 
 
 Husbands and wives nuist on no account be 
 separated. 
 
 Nov. i;5th, 1S42. John Clarkson. 
 
 *311 
 
 *I became of age on rhe 5th of Jan., ls.'>2. 
 From the 5th Jan., 1KV2, to 5th. 1S41— !> 
 years. Betty came into my possession 5th 
 Jan., 1832. George, Ca\sar, Jack, Henry, 
 David, Robert, — owned a fourth part of these 
 six negroes until Sth Nov., is:',[\. when (ieorge 
 and Cii'sar were taken by me in the division 
 that was made at that time. George owed 
 me $112 in August. 1S41. and has paid me 
 very little I think since that date. But cred- 
 it him with $25. Anthony was .sold on the 
 7th Dec. 1S:52, by Mr. Kunhardt to B. I). 
 Ileriot. I wish a calculation to be made as 
 lo what the above-named negroes could have 
 earned me after paying all their exiienses, 
 which sums I wish paid to them — I mean 
 during the time I owned them. Deduct the 
 amount which George owes me. iuid will owe 
 me, unless he pays. Ca'sar's wages should 
 
 127
 
 *311 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 be counted up to 1837, besides that he will be 
 on the same footing with the plantation ne- 
 groes. Betty and George, besides their 
 wages, will be on the same footing with the 
 plantation negroes. 
 
 Nov. 2.5th, 1842. John Clarkson. 
 
 If there is any portion of my property 
 given to the 'Domestic and Foreign Mission- 
 ary Society, I wish it given to tl-a domestic 
 department, or a portion to Texas. 
 
 Nov. 2.5th, 1842. John Clarkson. 
 
 I understand that my will cannot be law- 
 fully carried into effect. I wish no evasion 
 of the law practised, but application to be 
 made to the Legislature to permit it to be 
 executed. 
 
 January, 1843. John Clarkson. 
 
 Should my negroes be emancipated, in- 
 stead of giving to them all the proceeds from 
 the sale of my plantation, I bequeath $5,000 
 
 of the said proceeds to Miss J J , 
 
 (you will know who I mean.) and .$5,000 to 
 Miss A. E. M., (Rev. J. S. Hauckel can tell 
 you who I mean,) and should my negroes not 
 be emancipated, and there be no intention of 
 its being done, I wish my property divided 
 into five equal parts: one given to missions 
 and charity ; one to my brother William 
 
 *312 
 
 Clarkson ; one to my * brother T. B. Clark- 
 son ; one to Miss J J , named 
 
 above, and one to Miss A. E. M., named 
 above. Rev. Mr. Barnwell must be consult- 
 ed as to the propriety of giving legacies to 
 these ladies. I wish it done, if there be no 
 impropriety in doing it. 
 
 Feb., 1849. John Clarkson. 
 
 I do not wisli my negroes forced to go to 
 Africa, if they do not wish it. 
 
 Aug. 13, 1849. John Clarkson. 
 
 I wish whatever amount I shall receive 
 from my mother's estate, having come to me 
 through my aunt, Mrs. Broughton, to be 
 returned to Mrs. Broughton's family. That 
 is all that I can control. 
 
 Aug., 1849. John Clarkson. 
 
 Thomas Boston Clarkson, in his answer, 
 submitted the whole matter to the judgment 
 of the Court. 
 
 Dunkin, Ch. The will of John Clarkson 
 bears date 2nd October, 1840, and is as fol- 
 lows, viz: — "I make the following will and 
 testament. After all my debts are paid, I 
 "Will and bequeath to niy brother, William 
 Clarkson, all of my property on certain con- 
 ditions made with him. Should he decline 
 taking it, I will and bequeath it to the Rev. 
 Wm. H. Barnwell on the same conditions. 
 I appoint my said brother my executor." 
 The testator died on the 21st October, 1849, 
 and soon afterward the executor named, 
 proved the will and qualified thereon. The 
 estimated value of the testator's real estate 
 is $23,500, and of his personal estate about 
 $93,000. His next of kin and heirs at law 
 are his two brothers, William and T. B. 
 
 128 
 
 Clarkson, and the complainant, who is the 
 only child of a deceased sister. The bill sub- 
 mits that no valid testamentary disposition 
 has been made of the testator's estate, and 
 that a trust results to his heirs at law. 
 
 It may be as well first to imiuire, whether 
 any beneficial interest is given to William 
 Clarkson? If none, then his title is wholly 
 fiduciary. He is a trustee, and the conse- 
 
 *313 
 quences result*ing from that will be after- 
 wards considered. Did the testator intend a 
 bounty to William Clarkson, and were "the 
 conditions made with him" merely subordi- 
 nate or incidental? or, on the other hand, 
 was the legal title vested in him for the ex- 
 press purpose of enabling him to accomplish 
 certain objects, and not with any view to 
 his own advantage and emolument? The 
 terms used imply no intention to confer a 
 I)ersonal benefit. No donative words are used 
 but as coupled with the condition. The con- 
 text repels any such inference. It is tnie 
 the will shows William Clarkson to have 
 been the brother of the testator, and thence 
 an object of his affection, and a natural ob- 
 ject of his bounty. But the will declares, 
 should he decline taking it, the property is 
 given to the Rev. Mr. Barnwell on the same 
 conditions. Was any bounty intended to Mr, 
 Barnwell? Manifestly none. The only pur- 
 pose was to fix the legal title in some per- 
 son who would execute the trust. In Stubbs 
 V. Sargon, (3 M. & C. 507,) the language was 
 much stronger to support the position, that 
 Sarah Sargon held the £2,000 as a gift sub- 
 ject to a charge, but the Lord Chancellor 
 held it a gift upon trust. She was no more 
 than the donee of a power to be exercised in 
 favor of others. 
 
 Then what is the trust upon which Wil- 
 liam Clarkson took the property? The will 
 bears date, as has been stated, 2nd Oct., 
 1840. No particular trust is specified on the 
 face of the instrument. No reference is 
 made to any existing document. He is to 
 take the property "on certain conditions 
 made with him," or not to take it at all. 
 But the will is silent as to those conditions. 
 It is proposed to give in evidence certain 
 loose pieces of paper, containing memoranda 
 made by the testator at various times from 
 the 7th October, 1840, to August, 1849. The 
 first is directed to W'illiam Clarkson, and all 
 are signed by the testator. In William 
 Clarkson's answer he says, that he under- 
 stands these papers were found where the 
 will was found, and along with it ; but he 
 says that (so far as he remembers) he had 
 never, before his brother's death, seen either 
 his brother's will, or any of the papers ac- 
 companying it, "although," he adds, "his said 
 
 *314 
 *brother had, at different times, conversed 
 with him upon the first and principal sub- 
 ject mentioned in the papers accompanying
 
 JOHNSON V. CLARKSON 
 
 »816 
 
 liis will, and relied Implicitly upnu this de- 
 fendant's integrity, for carry inj.' out his in- 
 tentions, as far as he could, witliout practis- 
 ing any evasion of the law." This lirst and 
 princiiial suhject to whi<li the defendant re- 
 fers, as the only matter alniut which they 
 had conversed, was the emancipation of the 
 te!^tator*s slaves. Assundng that to he a 
 trust, acknowledged hy the defendant, it 
 may stand on a different tooting, and will he 
 presently considered. The admissihility of 
 the papers, ahoiit which the defendant knows 
 nothing, which he never saw until after his 
 hrother's death, is tirst to lie deteruuned. 
 Upon this jioint. as well as other hranches of 
 this cau.se. the argument in Ilahergham v. 
 Vincent, (1' Ves. Jr. 'M~>.) is very instructive. 
 In the decision t)f the case, the Lord Chan- 
 cellor had the assistance of Justices Wilson 
 and Buller, and all concurred in the judg- 
 ment. It was insisted that the deed was 
 valid as part of the testator's will. After 
 premising tlnit the statute was made not for 
 the lieiielit of the testator only, i»ut for gen- 
 eral public purposes, and that the law did 
 not allow a testator to say that he would 
 make a will without the retpusites pre.scrlh- 
 ed, either not thinking he wouUl he imposed 
 upon, or not caring about it, Judge Wilson 
 adverts to a distinction as well established. 
 "If a testator in his will refers expressly to 
 any paper already written, and has so de- 
 scribed it tliat there can be no doubt of the 
 identity, and the will is executed in the 
 presence of three witnesses, that paper 
 makes part of the will, whether executed or 
 not: such reference is the same as if he had 
 incorporated it. Rut the difference between 
 that case and a relation to a future inten- 
 tion, is striking. In the former, there is a 
 precise intt'ution mentioned at the time of 
 making the will: but when a man declares 
 he will, in some future paper, do something, 
 he says he will make a will as far as his 
 intention is then known to himself, but lie 
 will take time to consider what lu> shall do 
 in future." In the argument. Adilngton v. 
 Can & Andrews, (3 Atk. 141,) was cited as a 
 leading authority, in which Lord Ilardwicke 
 
 *315 
 held, that it would be ♦a rejieal of the stat- 
 ute, if a paper, subsequent in date to the 
 will, and to which the testator Imd made no 
 reference, should be allowed any effect. It 
 ivas conceded at the bar, that "where such 
 reference is wanting, none of the cas(>s have 
 gone so far as to connect the p.-iper with the 
 will: for it must be collected, that the testa- 
 tor meant to refer to the paper not executeil 
 a<'Cording to the statute, otherwise the stat- 
 ute Is not satisfied." The will of John Clark- 
 son refers to no paper whiitever. It refers 
 to "certain conditions" made wilii William 
 Clarkson. If under this description could be 
 classed the various changes made by the tes- 
 tator, oral or written, within the ensuing 
 eight or nine years, it would introduce a 
 
 8 Rxcu.Eq.— 9 
 
 mode of testamentary disposition entirely 
 novel, and rendering nugatory all the safe- 
 guards of the statute. The defendant, Wil- 
 liam Clarkson. is no i»arty to these pai>ers. 
 He adnuts himself not to have known of 
 their existeme until after his hrother's 
 death. t)ne ot thesv papers provicies for a 
 distribution of the e.*tate, on a certain con- 
 tingency, into five i)arts, which are disposed 
 of to several legatees. Why could not any 
 other legatees insist on pand declarations of 
 the testator tluit the conditions made with 
 William Clark.son wen*, that he shovdd ilivide 
 the estate among them? "If a pap«'r can 
 have this effect against the statute, imnuMli- 
 ately after the execution of the will, it nnght 
 at any distance of time, .so that having gone 
 through tlie form of a will, which parts with 
 nothing effectually, he might, when under in- 
 finenie, or incnpaMe of <lisposition. or even 
 just expiring, in short, in that situation which 
 the statute meant to protect again.st fraiul. 
 by an unatti'sted paper, dispose of his whole 
 estate." These pajn'rs can have no effect but 
 as a testamentary »lisposition, and, not being 
 executed with the formalities iire.scrilied by 
 the statute, they have no legal operation. 
 
 Then it is .said that, witliout any reference 
 to these unattested papers, the defcn<lant is 
 a trustee to carry into effect the intentions 
 of the testator, in regard to the emancipa- 
 tion of his slaves, "as far as he could with- 
 out practising any evasion of the law." And 
 if there were any conditions made with the 
 
 •316 
 defendant, *which have been proved, this 
 was the trust to be discharged hy him. The 
 Court is willing to i>lace the case on the 
 footing, that this admission of the defend- 
 ant's answer was incorporated in the will ; 
 or (which is perliaps nearer the fact) that 
 the case is directly analagous to Smith v. 
 Attersoll, (1 Russ. :.U">,) and that the defend- 
 ant, cotemporaneously with the execution 
 of the will, had signed a declaration of trust, 
 to the eft'ect of the implied understandin;; 
 adndtted by the answer. If the will shouhl 
 be regarded as taking eft'ect from its date, or 
 if the testator had died prior to I>ec., 1S41, 
 then it would fall precisely within the prin- 
 ciple of the second class in I'iniey v. Hun- 
 ter, (1! ytrob. Eti. L'08, I'lC.) Slaves were be- 
 (jueathed on the condition that they should 
 be emancipated or sent out of the State. 
 Chancellor Johnston, delivering the judgment 
 of the Court of Appeals, says: "i am of 
 oi)inion, that what lias lieen called a con- 
 dition, is to be regarded in this Court as a 
 trust. The second class was given entirely 
 upon trust, without any intent to confer a 
 benefit upou the trustee. Ever since Morrice 
 V. the r.isho]> of Durham, the rule has l>een, 
 that wliere no lienetl<ial interest is intended, 
 hut a trust is attempted to be imposed, if 
 the trust fails from any cause, the trustee 
 shall not hold for his own benefit; but a 
 trust results to the grantor or his next of 
 
 129
 
 *316 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 kin." Blackmann v. Gordon, (2 Rieh. Eq. 
 42 [44 Am. Dec. 241]), proceeds upon tbe 
 same principle. 
 
 But tlie testator died in 1849. Tlie valid- 
 ity of his will, and the trusts therein declar- 
 ed, must be determined by the law of 1841. 
 The defendant does not state very particu- 
 larly, or exactly, what were the conditions 
 or trusts on which the slaves and other prop- 
 erty of the testator was confided to him. 
 But the Act of 1841, after declaring void 
 certain provisions for the emancipation of 
 slaves, concludes by a declaration, that "ev- 
 ery devise or bequest to a slave or slaves, 
 or to any person upon a trust or confidence, 
 secret or expressed, for the benefit of any 
 slave or slaves, shall be null and void." The 
 conditions, whatever they were, on which 
 this estate was devised and bequeathed to 
 the defendant, were confessedly for the bene- 
 
 *317 
 fit of the slaves of the *testator, so far as the 
 law would permit. But the law permits no 
 such benefits as the testator contemplated. 
 The design which he had in view cannot be 
 accomplished. The consequence is, as de- 
 clared in Finley v. Hunter : "The trustee 
 shall not hold for his own benefit, but a 
 trust results to the next of kin of the testa- 
 tor." 
 
 It is declared that the defendant, William 
 Clarkson, holds the estate, real and personal, 
 of John Clarkson, deceased, in trust for his 
 heirs at law and next of kin. It is ordered 
 and decreed, that a writ of partition issue, 
 according to the prayer of the bill, for the 
 purpose of dividing the said estate among 
 the parties to the pleadings. It is further 
 ordered, that one of the Masters take an ac- 
 count of the management of the defendant as 
 executor of the said John Clarkson. Tarties 
 to be at liberty to apply for any further or- 
 der, or for any modifications of these orders, 
 consistent with the principles of the decree. 
 Costs to be paid out of the estate. 
 
 The defendant, William Clarkson, appealed 
 on the following grounds : 
 
 1. Because the devise of the estate to Wil- 
 liam Clarkson, was a devise upon a condition 
 subsequent, which vested the estate in the 
 devisee ; and if the condition be unlawful 
 the estate remains, and if lawful the condi- 
 tion may be performed. 
 
 2. Because even if the devise be a devise 
 of a trust, the trustee having declared his 
 readiness to execute the trust which is law- 
 ful, the cestui que trusts may now enforce him 
 to it, and he is therefore trustee for these for 
 whose benefit he has declared the trust to be. 
 
 3. That the devise to William Clarkson, 
 was a devise of the beneficial interest, sub- 
 ject to uses to be declared by the testator, 
 and that he changed his mind and declared 
 new uses from time to time; that the last 
 uses declared by him are contained in the 
 written memoranda found with his will. 
 
 That those uses are lawful ; and there is 
 nothing in the statute of frauds, or in the 
 Act against emancipation, to prevent the 
 
 *318 
 devise from taking *effect as a devise to the 
 uses contained in the written memoranda 
 left by the testator. 
 
 McCrady, for W. Clarkson. 
 
 Martin, for T. B. Clarkson, cited 2 Story 
 Eq. §§ 1304, 1306 ; Att'y. Gen. v. Christ's Hos- 
 pital, 3 Bro. C. C. 165 ; Crommelin v. Crom- 
 melin, 3 Ves. 227 ; Holmes v. Lysaght, 2 Bro. 
 P. C. 261 ; Stratton v. Grymes, 2 Vern. 357 ; 
 Dawson v. Dawson, Rice Eq. 260; Izard v. 
 Montgomery, 1 N. & McC. 381; Milledge v. 
 Lamar, 4 Des. 617; Rose v. Cunynghame, 12 
 Ves. 36 ; Bonner v. Bonner, 13 ^'es. 379 ; 
 Buckeredge v. Ingram, 2 Yes. 652 ; Smart 
 V. Prujean, 6 Ves. 559 ; Slieddon v. Good- 
 rich, 8 Ves. 500 ; Smith v. Attersold, 1 Russ. 
 226; Rob. on Frauds, 332, 337; Habergham 
 V. Vincent, 4 Bro. C. C. 371 ; Lawson v. Law- 
 son, 1 P. W. 440 ; Coxe v. Basset, 3 Ves. 160 ; 
 Chaworth v. Beech, 4 Ves. 565 ; Finley v. 
 Hunter, 1 Strob. Eq. 208; Blackmau v. Gor- 
 don, 2 Rich. Eq. 43. 
 
 Memminger, for plaintiff. 
 Petigru, for legatees. 
 
 PER CURIAM. This Court concurs in 
 the decree ; and it is ordered that the same 
 be affirmed, and the appeal dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN and 
 WARDLAW, CC, concurring. 
 Appeal dismissed. 
 
 3 Rich. Eq. 318 
 
 J. J. CLARKE V. J. JENKINS and Others. 
 
 (Charleston. Jau. Term, ISol.) 
 
 [Appeal and Error <©=1022.] 
 
 Executors charj^ed with neiilect in the man- 
 agement of the plantations of testator under 
 Lin-ir iuari;e: the xMa^iter and Chancellor hav- 
 ing concurred that there had been no neglect, 
 the Court of Appeals refused to disturb their 
 judgment. 
 
 [Ed. Note. — ^Cited in Austin v. Kinsman, 1 
 S. C. 101; Arnold v. House. 12 S. C. 608; 
 Willoughby v. North Eastern R. R. Co., 52 S. 
 C. 175, 29 S. E. 629; Ex parte Baker, 67 S. 
 C. 82, 45 S. E. 143. 
 
 For other cases, see Appeal and Error, Cent. 
 Dig. § 4015; Dec. Dig. <S=>1022.] 
 
 [Executors and Administrators <©=393.] 
 
 Testator devised separate plantations to his 
 three infant children; there being a consid- 
 erable amount of debts of testator to pay, and 
 the number of worliing hands of the children 
 being about equal, the executors, until the debts 
 were extinguished, managed the several planta- 
 tions as one estate, without separation of the 
 
 *319 
 income of *each child — charging, however, one 
 of the children, whose plantation was of less 
 value than the others, with a reasonable amount 
 for rent ; Held, that there was no reasonable 
 
 130 
 
 @=»For other cases see same topic and KEY-NUMBER in aU Key-Numbered Digests and Indexes
 
 CLARKE V. JEXKINS 
 
 •321 
 
 objertion to the conduct of the executors in 
 manaKing the estate as a whole. 
 
 [Ed. Soto. — For other ruses, see Kxecutor.s 
 and Administrators, Cent. l>ii:. § 4(>7 ; Dec. 
 
 I>i- <s=>;>o.] 
 
 [Coiniirdiiilsr and Seitlemrnt c=)lt>.l 
 
 At the foot of an account, containiiii: sev- 
 eral rlemands. the creditor anvo a receipt in 
 full, and niurc than four years afterwards rlaiiu- 
 ed other demands not inchided in tlie aicount ; 
 Held, — Tliat the receipt amounted to a waiver 
 and abandonment of the chtims uot included in 
 the account. 
 
 I Ed. Note. — V r other cases, see Comi)romise 
 aiul Settlement, ^ent. Dig. § 50; Dec. Dig. <S=> 
 
 [LiniUation of Actions <g=(»0.1 
 
 Jleld further, that if the i)arty nii^ht have 
 opened the receipt ui)on any ;,'round of eipiity, 
 such as fraud or mistake, the statute of limi- 
 tations be«an to run av:ainst the exercise of such 
 rinht from the date of the receii)t. 
 
 I Ed. Note.— For other cases, see Limitation of 
 Actions. Cent. Dig. § .>34 ; Dec. Dig. ©=>00.] 
 
 {Limitation of Actions (©=>14.3.] 
 
 The acknowledgment of an executor of the 
 justice of a claim, after the bar of the statute 
 of limitations is complete, will uot prevent 
 legatees and distributees, into whose hands the 
 estate h.-is gone, from availing themselves of the 
 bar of the statute. 
 
 [Ed. Note.— For other cases, see Limitation of 
 Actions, Cent. Dig. S 582; Dec. Dig. <@=3l43.] 
 
 [Executors anil Administrators ®=>ll.'5.1 
 
 Every executor has a several riuht to re- 
 ceive the assets of the estate ; and he who re- 
 ceives, is exclusively answerable for the mis- 
 application of them, unless his coexecutors have 
 contributetl to enable him to get i)ossession of 
 them, or have acquiesced iu his appro[)riatiou 
 of them contrary to the trusts of the will, know- 
 ing of such misapplication. 
 
 [Ed. Note.— Cited in (iatcs v. Whetstone, 8 
 S. C. 247. 28 Am. Rep. 284. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 522; Dec. Dig. <©=>125.] 
 
 [Infants <S=3ll2.] 
 
 [Cited in Barnes v. Cunningham, 9 Rich. 
 Eq. 4T!>. to the point that until a decree is 
 regularly vacated infant i)arties are bound by 
 it to the same degree as adults. 1 
 
 [Ed. Note. — For other cases, see Infants, Cent. 
 Dig. § 320; Dec. Dig. <S=>112.1 
 
 Before Dargan, Ch., at Charleston, Febru- 
 ary, 1850. 
 
 This ca.se came before the Court on ex- 
 (•ei)tion.s to the report of the Master, which is 
 as follows: 
 
 This case was refi'rred to uie to report on 
 the niatter.s set forth in the pleadings, llav- 
 ini^ received no instructions from the Court, 
 touching the iirincii)les upon which the report 
 should be foundcti, the Master will be com- 
 jtelled, in order to bring the whole case fair- 
 ly and fully before the Court, to express opin- 
 ions on several important points of law. 
 
 The ccunidainant is James .To.seph Clarke, 
 son of William M. Clarke, deceased; and the 
 defendants are John Jenkins, William M. 
 Murray, and George W. Seabrook. executors 
 of the said William M. Clarke, and Mr. and 
 Mrs. Ilanckel, and Mr. and Mrs. Whaley. 
 These two ladies being daughters of the said 
 William M. Clarke. 
 
 It appears that Williaiu >r. Clarke was 
 twice inarrh'd: his first wife was Martha 
 Mary Murray; she departed this life in the 
 year 1S21. about nine months after h«'r mar- 
 riage, leaving surviving her the said William 
 
 *320 
 
 .^^. Clarke, and one daughter. Mar*tha .Marj- 
 Murray Clarke, now .Mrs. Whaley. one of the 
 defiMidants. The second wife of Mr. Clarke 
 was Elizabeth Jenkins. He died in the year 
 1S.'51. leaving surviving him his .said widow. 
 Elizabeth Jenkins, and two children by her. 
 the complaiimnt .1. J. Clarke, and the defend- 
 ant Mrs. Ilanckel. The widow afterwards in- 
 termarried with John Ilaniuihan : but nei- 
 ther of them are parties to this bill. 
 
 In order to understaiul the (piestions in- 
 volved in this case, it is necessary to advert 
 to the will of Joseph James Murray, the fa- 
 ther of Mr. Clarke's tirst wife, and grand- 
 father of the defendant. Mrs. Whaley. This 
 gentleman, on the 2.'?d February, 1S15, execut- 
 ed two deeds, which he coulirnu^d by his will 
 bearing the same date — wherein he conveyed 
 to trustees, sixteen negro slaves for the sepa- 
 rate use of his daughter. Maitha Mary Mur- 
 ray, mother of the defendant, Mi's. Whaley, 
 during her life, atul renuiinder to any child 
 or children living at the time of her death, 
 absolutely. At or socui after her marriage 
 i with ^Ir. Clarke, these negroes went into his 
 I)os.session, and he continued to u.se them 
 from that time, about the year 1S2U. to his 
 death in the year ls.";i, without accounting 
 for their hire to his daughter, Mrs. Whaley, 
 in wh<un, iii>on the death of her mother, they 
 had absolutely vested. 
 
 Mr. Clarke, by his will made in 18:50. 
 among other things, after tlevising to his wid- 
 ow in fee a plantation called '"Cypress Trees," 
 devised and beciueathed in the following 
 words: 
 
 •'Item. I give, devise and beciueath unto 
 my dear daughter. Martha Mary Murray 
 Clarke, her heirs and assigns forever, all my 
 right, title, interest and estate in the planta- 
 tion or tract of land commonly called "Vine- 
 gar Hill." that came from the estate of her 
 grand-father, .Joseph Janu's Murray ; and as 
 the said plantation is, in my oitinion, less 
 valuable than the plantations respectively 
 given to my wife and other children : and as 
 it is my wish that, at my death, my wife and 
 each of my children be as nearly as possible 
 on an eiiuality in regard to proi)erty, I give, 
 devise aiul heiiueath unto my daughter, Mar- 
 tha Mary Murray Clarke, .so nuich money as, 
 
 *321 
 
 with the said plantation *"\'iiiegar Hill," will 
 be equal in value to "Cypress Trees" planta- 
 tion, in lieu, and to stand in the place of, so 
 much land, to her and her heirs forever. 
 
 "Item. I give, devi.se and bequeath the 
 plantation or tract of land called "Shell 
 
 ®=3For other ca.'ies see same topic auii KEY-NL'.MlibllC iu all Key-Numbered Ulgcsis aud lude.xes 
 
 131
 
 *321 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 House," unto my son James Joseph Clarke, [ the rest, residue, and remainder of my estate. 
 
 his heirs and assigns forever. 
 
 "Item. It is, as I have already said, my 
 desire that, at my death, my wife and chil- 
 dren respectively, should be as nearly as pos- 
 sible possessed of property of equal value. 
 And as my dear daughter, Martha Mary Mur- 
 ray Clarke, under the deed of her grand-fa- 
 ther, Joseph James Murray, to her mother, 
 then Abigail Jenkins Murray, dated the twen- 
 ty-third day of Febi-uary, in the year of our 
 Lord one thousand eight hundred and fifteen, 
 will be possessed, in her own right, of as 
 many slaves as can fall to my present wife 
 and her two children, on a division among 
 them of all the negroes that belong to me, I 
 therefore will, order, and direct, that all the 
 negro slaves of which I may die possessed in 
 my own right, be divided into three equal 
 portions or parts. That my negro slaves 
 Frank, Bob, Sarah, and her children Joe, 
 Prince, John, Martha, Mary, Sam and Ben, 
 be included in one of these three equal parts ; 
 and I give and bequeath the one of the said 
 three equal portions, in which the slaves 
 designated are included, unto my dear wife 
 Elizabeth Mary Clarke, forever, to and for 
 her own sole and separate use, and without 
 being in any respect subject to the debts, in- 
 fluence, or control of any husband whom she 
 may have. And I give and bequeath the re- 
 maining two equal parts or shares of my said 
 slaves unto my dear children, James Joseph 
 Clarke and Elizabeth Jenkins Clarke, namely, 
 one share or part to each of them forever. 
 And should any or either of my said children 
 die under twenty-one years of age, without 
 leaving lawfully begotten issue living at the 
 time of his, her, or their death, then the share 
 or shares of my estate, real and personal, of 
 such child or children so dying, whether spe- 
 cifically given, or otherwise accruing under 
 this will, shall go to the survivor or survivors 
 of my said wife and children, and the issue 
 
 *322 
 
 of any deceased child *or children, to be 
 equally divided among them, share and share 
 alike. The issue of any deceased child or 
 children taking among them the share or pro- 
 portion only to which the parent or parents, 
 if alive, would have been entitled. And 
 should all my said three children die before 
 attaining twenty-one years of age, without 
 leaving issue lawfully begotten, living at the 
 time of his, her, and their death, then, and in 
 that case, I give, devise and bequeath all 
 and singular, the property, real and personal, 
 given, devised and bequeathed unto my said 
 three children, whether specifically given, or 
 otherwise accruing under this will, unto the 
 issue of my two sisters, Elizabeth Grimball 
 Jenkins, the wife of John Jenkins, and Lydia 
 Calon Murray, the wife of Millivan Murray, 
 to them and their heirs forever, to be equally 
 divided between them. 
 
 "Item. I give, devise, and bequeath all 
 
 132 
 
 real and personal, unto my dear wife and 
 children, to be equally divided among them, 
 share and share alike, to them and their 
 heirs forever." 
 
 The executors named in the will all quali- 
 fied thereon, and are now defendants to this 
 bill. Finding much difficulty in the adminis- 
 tration of the estate, the executors above 
 named, in the j'ear 1837, filed their bill in this 
 Court against Mr. and Mrs. Hannahan, and 
 against J. J. Clarke, Mrs. Hanckel, and Mrs. 
 Whaley ; all three of whom were then in- 
 fants, and answered by their guardian ad 
 litem, asking instructions on the following 
 points : 
 
 1st. As to the mode of determining the 
 amount of money to be paid to Mrs. Whaley, 
 to equalize her plantation "Vinegar Hill" 
 with "Cypress Trees." 
 
 2d. How that amount should be raised. 
 3d. The proportion to be borne by each dev- 
 isee. 
 
 The case was referred to me, and my report 
 is on file. 
 
 The sum of $9046 was reported as the dif- 
 ference in value between "Vinegar Hill" and 
 "Cypress Trees." Chancellor Harper decreed, 
 at January Term, 1839, that the executors, 
 out of the residue after the payment of the 
 
 *323 
 debts of the testator, *shonld pay two-thirds 
 of that amount, to wit, $6030, to Mrs. Whal- 
 ey; and in case the residue was insufficient, 
 that that sum must be made up out of the 
 negroes bequeathed to the complainant, James 
 J. Clarke, and his sister, Mr.s. Hanckel, by 
 their father. The executors proceeded to ad- 
 minister the estate upon these principles, and 
 in December, 1841, they paid to Mr. Whaley 
 the sum of $11,222.76, and took the following 
 receipt at the foot of their accounts on the 
 executors's book: 
 
 "1841, November 17, by balanc-e due W. J. 
 Whaley, $11,222.76. Edisto Island, December 
 11th, 1841, received of George W. Seabrook, 
 executor estate Wm. M. Clarke, the sum of 
 eleven thousand two hundred and twenty- 
 two dollars 76.1-4, in full of the above bal- 
 ance. Wm. J. Whaley." 
 
 The complainant, James J. Clarke, having 
 arrived at the age of twenty-one years, filed 
 the present bill against the defendants, pray- 
 ing an account from the executors ; charging 
 that the debts of the estate had been improp- 
 erly paid by the executors out of his share, 
 and that of his sister, exclusive of Mr.s. 
 WHialey ; — that the executors, whilst the es- 
 tate was under their management, neglected 
 the same, by means whereof the annual in- 
 come and profits thereof were diminished. 
 The bill further prays, that the defendants, 
 Mr. and Mrs. Whaley, may account for such 
 sums of money as they had received, and that 
 'le be held liable for one-third of the debts 
 of the testator. The answer of the executoi-s 
 stated, that the principal burthen of the ad-
 
 CLARKE V. JEXKINS 
 
 *32G 
 
 ministration was assumed by the defendant, 
 George W. Soaljroolv: that they vouched their 
 accounts in tlie proper oflice; that they eliari:- 
 ed the debts upon tlie residue, and after tliat 
 was exhausted, they were l)ound to fall hack 
 upon the residuary bequest of nc;:roes. in 
 preference to tla* land devised. That they, 
 upon demand by eoniplainant's solicitor, ex 
 
 '325 
 
 •1st. Governor Seabrook testified, that "the 
 overseer; Wescoat, employed by them, the 
 executors, has an excellent reputation, but 
 has known nothing of him personally." 
 
 I'd. Mr. James Legare testifies, -Knows 
 We.scoat very well; about four\vears ago, 
 when he, witness, was niarried. found him 
 
 hibited their accounts to him • that thev h-ne b J. .7^' ""/ '"'"■'•'^'"- ^""""l !>"" 
 
 ma.mged the nrone.fv to t,.,: . 'j ........ .\! T'^^^ ^''^*'^^'- "^ ^'"^ ^^'^^ «"J "*'r sisters; has 
 
 managed the property to the best advantag* 
 in their jiower, and have credited the entire 
 amount of the income of the estate. That 
 the property is by no means very produc- 
 tive: and that tlie income, under tlieir man- 
 
 ♦324 
 agement, was ♦as great as complainant has 
 realized from it since it was turned over to 
 him. They admit to have in hands $1,L'77.S9, 
 which they are ready to pay over, according 
 to the direction of the Court. They further 
 state, that the defendant, Whaley, daims 
 against the estate an account for the hire of 
 Mrs. Whaley's negro«'s, from the time of the 
 death of the first Mrs. Clarke to the death 
 of Mr. Clarke, and while they continued in 
 the hands of the executors ; and thev admit 
 that the claim is perfectly just, and interpose 
 no objection thereto. 
 
 The answers of Mr. and Mrs. Hanekel. and 
 Mr. and Mrs. Whaley. contain no facts not 
 already mentioned. The principal, if not only 
 point, to which the complainant, and the de- 
 fendants Mr. and Mrs. Hanekel, have intro- 
 duced testimony, is as to the alleged mis- 
 management, by the executors, of their sever- 
 al plantations. 
 
 The rule laid down by the Court in Taveau 
 V. Ball, (1 McCord E.]. 401.) is, that executors, 
 administrators and others, acting in a fidu- 
 ciary character, are bound to manage the 
 funds committed to their care, with the same 
 care and diligence, that a prudent and cau- 
 tious man would bestow on his own concerns. 
 In all cases, tlierefore, where a loss arises 
 in the management of funds by the executor, 
 or other person acting as trustee, the ques- 
 tion arises, whether the loss happened from 
 casualties against which no one can bo ex- 
 pected always to guard, or from his want of 
 care and circumspection. 2 Hill Eq ;3G4 
 Bryan v. Mulligan. Such is, I presume, the 
 law api)lical)le to the present c-a.se. The first 
 question of fact therefore is, di.i the exe- 
 cutors manage this property with the same 
 care and diligence that a prudent and cau- 
 tious man would bestow on his own concerns •> 
 I find that they did. The executors employed 
 as their overseer, from the death of Mr 
 Clarke, to the period when the devisees to,.k 
 possession of their .several plantations. Mr 
 John W. Wescoat ; to him was confided the 
 luanagement of the several plantations. So 
 that the fidelity of the executors to the obli- 
 gation of their office, depends upon the hon- 
 esty, c-apacity and industry of their overseer 
 On this point the testimony is as follows- 
 
 continued to employ him; has alwavs been 
 satisfied with him; thinks him an honVst and 
 competent overseer." 
 
 .'5(1. Mr. A. J. Clarke, brother of the com- 
 plainant, "Knows Wescoat ; he is a perfectly 
 competent overseer." 
 
 •Ith. Mr. Thomas Hailey. "Knows Wescoat: 
 he managed the places as overseer for .several 
 years; far as he knows him personally, 
 thinks he is as good an overseer as can be 
 found in the Southern States." 
 
 lu behalf of the complainant and Mrs. 
 Hanekel, the witnesses testify as follows: 
 
 Mr William Whaley. Among the men with 
 whom witness associated, did n<it think Wes- 
 coat a great or good planter; witness's father 
 hired him for one year on the estate of Ken- 
 jamin Whaley, and at the close of the year 
 dismissed him ; told him early in the .season 
 he might go as .soon as he plea.sed ; this was 
 at the same time he managed Clarke's place. 
 Mr Legare is the first man he ever heard 
 speak well of We.scoat as a planter, though 
 there may be others, and must be, from the 
 number of places he is employed on ; thinks 
 he, Wescoat, was as extensively emploved 
 as any other overseer; never heard of his 
 having made any distinguished crop. He 
 has latterly been employed by men of proper- 
 ty. Would himself rather go without an over- 
 seer on his plantation, though not living 
 there, rather than employ Wescoat. Wescoat 
 is employed by Ephraim Baynard. 
 
 2d. Mr. Edward Fuller's testlmonv leads 
 to the conclusion, that the Clarke estat*' was 
 not as well managed as he manaiged his „w„ 
 property. 
 
 I'rom this testimony. I find that the ex- 
 ecutors have managed with the care and dil- 
 igence that a prudent man would bestow 
 
 ♦326 
 ♦on his own allairs. At the .sam,. time it is 
 probable, that if these plantations h.-ul been 
 the property of one or more individuals of 
 greater energy, capability and .iis.ietion 
 than the executors named by the t.'stator' 
 larger crops might have been obtained. 
 
 Assnnung then that the executors are not re- 
 sponsible for more than they have received 
 the next question that arises is as to their 
 accounts. It is admitted by all jiarties. that 
 they have actually disbursed all that has 
 been received by them. But it is contended 
 on the part of the complainant, that the ae^ 
 counts should be readjuste<I. .so as to allow to 
 him l'.-» per cent, more of the annual crops than 
 IS allowed to Mrs. Whaley and Mrs. Hanekel, 
 because of the superior fertility of his laud.' 
 
 133
 
 *326 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 So a claim for a greater share than that 
 allowed to Mrs. Whaley, is claimed in behalf 
 of the defendant, Mrs. Hanckel. 
 
 From the testimony, it appears that each 
 of the devisees had about an equal number of 
 hands. The plantations, says Mr. Wescoat, 
 were cultivated together as one place. The ne- 
 groes were pretty much on one place. Thinks it 
 was the best way to cultivate the lands, by 
 cultivating them as one whole. In a division 
 of the crops. Old Franks (the plantation of 
 the defendant) ought to have had a little 
 the most, "perhaps one quarter more than 
 either of the other places.'' 
 
 If the testator had died free of debt, and it 
 had been unnecessary, by the provisions of 
 this will, to raise the sum of $6030 paid to 
 Mrs. Whaley, it would clearly have been their 
 duty to cultivate the places separately, or 
 at all events to have discriminated in favor of 
 the complainant, between the shares allotted 
 to the other two parties. But the testator 
 being in debt, and the complainant and Mrs. 
 Hanckel having taken their shares subject 
 to the allotment to Mrs. Whaley of .$60.30, 
 the executors, looking to the payment of the 
 creditors, in which class I place Mrs. Whaley, 
 pro hac vice, made an equal partition of the 
 annual income. To obtain this annual in- 
 come, Mrs. Whaley's gang contributed their 
 services, and also the use of the Vinegar 
 Hill tract for provisions. This income was 
 
 *327 
 
 applied, as before stated, to *the payment of 
 debts, for which the complainant and Mrs. 
 Hanckel were liable; and for which, between 
 the distributees, Mrs. \v haley was in no event 
 liable. 
 
 Besides, the executors, in their account, p. 
 144, have charged ]Mrs. 'NMialey with the sum 
 of $209.5 for the hire of the land of Clarke 
 and Hanckel, at the price of $5 per acre, 
 which, according to the testimony, is a fair 
 valuation. 
 
 I am of opinion, therefore, that the divi- 
 sions of the income made bj- the executors 
 was proper. 
 
 The defendants, Mr. and Mrs. Whaley, 
 have also presented tliree distinct claims, 
 which will now be considered. The first is 
 a claim against the estate, as a debt, for the 
 hire of Mrs. A^'haley's negroes, from the 
 death of her mother in 1821, to the death of 
 her father in 1831. The executors, in their 
 answer, admit that this claim is i>erfectly 
 just; but the complainant and Mrs. Hanckel 
 contend that, as against them, the lapse of 
 time is a bar. I find that the claim of Mrs. 
 Whaley is correct, and recommend that she 
 be allowed hire at the rate of £10 per annum 
 for 13 hands, for the space of nine years, 
 with annual rests. Whether this claim is 
 barred or not as to the other devisees, I refer 
 to the Court as a question of law ; and I 
 report a statement of her claim made up on 
 these principles. 
 
 134 
 
 Tlie second claim of Mrs. Whaley is for 
 interest on the sum of $6030, decreed by 
 Chancellor Harper, from one year after the 
 testator's death, to wit, from 1832. It has 
 been already seen that the testator intended 
 to equalize the fortunes of liis cliildren, and 
 for that purpose excluded Mrs. Whaley from 
 any share of his negroes ; and as Vinegar 
 Hill was inferior in value to other places, 
 he devised to Mrs. Whaley "so much money 
 as, with tlie said Vinegar Hill, will be equal 
 in value to Cypress Trees plantation, in lieu, 
 and to stand in the place of, so nmch land, 
 to her and her heirs forever." It is contend- 
 ed by Mrs. Wlialey, that the true construc- 
 tion to be put on the will is to read it, as if 
 instead of tlie words "so mucli money," there 
 had been inserted the sum found by the de- 
 cree to be the difference in value, to wit, 
 $6030. In that case, the amount would have 
 
 *328 
 
 borne interest *from one year after the death 
 of the testator. I concur in that opinion, for 
 whether the sum be regarded as money or 
 land, in order to preserve equality between 
 tlie heirs, it must be considered as belonging 
 to Mrs. Whaley from the time of the death 
 of her father, when Cypress Trees and the 
 other plantations, as well as negroes, vested 
 in the other devisees. There can be no doubt, 
 that if the executors liad tiled their bill for 
 instructions in 1S31, upon the death of Mr. 
 Clarke, that a certain sum of money would 
 have been decreed to I\Irs. Wlialey, and that 
 sum would have borne interest in the hands 
 of the executors. But it is objected on the 
 part of the executors, that the decree of 
 Chancellor Harper precludes this claim. To 
 this it is replied, that Mrs. Whaley was then 
 an infant ; that the executors were also her 
 guardians by the will of her father, and that 
 neither they, nor her guardians ad litem, 
 could waive her rights to her prejudice. 
 
 On the part of the complainant and Mrs. 
 Hanckel, the lapse of time is also objected to 
 this claim ; so far as the executors are con- 
 cerned, I can discern nothing in the decree 
 of Chancellor Harper, which authorizes me 
 to conclude that they were exonerated ; and 
 I therefore report the claim as well founded 
 against them. As to the other devisees, it is 
 as in the former case, a question of law, 
 which I respectfully refer to the Court. 
 
 The third and last claim of Mrs. Whaley 
 is, that she is entitled to a credit for the 
 sum of $2095, charged to her debit in the 
 books of the executors, page 144, as hire paid 
 by her to the other devisees for the use of 
 their laud. Vinegar Hill plantation was in- 
 ferior in fertility to the other places, the 
 executors therefore employed Mrs. Whaley's 
 gang on the best lands, allowed her one-third 
 of the crops, and to make up for the differ- 
 ence in fertility, charged her with that sum 
 as rent of so much land hired for her use. 
 She would be entitled to thi?v credit, if she
 
 CLARKE V. JEXKIXS 
 
 *zrA 
 
 were oJ)li?0(l to account for 25 per cent, of 
 llie one-third part of the income allotted to 
 her : hut as she is not, accordini; to my 
 view of the case, hound to do so, I think the 
 executors were rl;.'lit in charj^ing lier with 
 
 •329 
 
 that sum. as liire of the land of her •co- 
 devisees. I therefore recommend that the 
 claim he not allowed. 
 
 The only otlier iiuestion remaining is, 
 whether all the executors are respoiisihle, or 
 only Mr. (Jeorsjre W. Seahiook, for any de- 
 mand which may he estahlished hy any of 
 the parties. The complainant and the de- 
 fendants. Ilanckel and Whaley, all contend 
 fur their joint liahility. The executors state 
 in their answer, that the principal hurthen 
 of the adminisl ration was home hy Mr. Sea- 
 brook. Mr. I^'jrare, who was the factor of 
 the estate, states that his dealings were prin- 
 cipally with Washini-'ton Seahrook ; thinks in 
 >ome cases orders may have been drawn by 
 .John Jenkins; knows that Mr. Murray was 
 an executor, would have paid any order he 
 had drawn on him; does not recollect that 
 any such order was drawn. Always looked 
 upon Washiiii;ton Seahrook as the actins; ex- 
 ecutor. Has con\ersed about the business of 
 the estate with John Jenkins, bad no more 
 to do with him than with Murray. In reply, 
 he states that in his business relations with 
 Seahrook, considered that his co-executors 
 were bound by his accounts ; but has no rec- 
 ollection of ever having any business dealings 
 ia the matter of the estate, with either Mur- 
 ) ay or Jeidcins. 
 
 John Wescoat, the overseer, testifies that 
 after Clarke's death, he was emidoyed by 
 John Jenkins, one of the executors ; con- 
 tinued as overseer until the last three jears. 
 
 Whitemarsh B. Seahrook testifies, that he 
 was employed by Washington Seahrook to 
 adjust his accounts as executor of Clarke; 
 so far as he knows, Washington Seahrook 
 was the oidy acting executor ; knew him 
 only in the business; believes that he alone 
 managed the financial concerns of the estate. 
 
 In behalf of the other parties, it is contend- 
 ed, that the executors ai'e bound for each 
 others acts by the fact that they united in 
 the bill tiled in 18.'J7, asking instructions; 
 .md that they cannot now excuse themselves 
 from loss, by pleading that they have not 
 executed the instructions prayed ; that they 
 were bound also, as testamentary guardians, 
 to additional responsibility beyond that im- 
 posed merely upon executors; that G. W. 
 
 •330 
 
 •Seahrook was in fact their agent for certain 
 purposes, to wit, the management of the 
 financial part of the estate, but not of the 
 whole business, as it is proved that the over- 
 seer had been hired by John Jenkins. 
 
 I find that George W. Seahrook was the 
 sole acting executor, and that the others are 
 
 I not re.sponsible for Ids defaults, if any should 
 be proved. Respectfully suhnntted. 
 
 Edward R. Laurens, Master in Equity. 
 
 Dargan, Ch. This case comes Ijefore me 
 for trial, on the report of the Master, and 
 exceptions thereto. The excellent syno[>sis of 
 the facts given by the Master in his report, 
 renders it uiuiecessary for me to make a 
 statement of them. Yet the case was imper- 
 fectly prepared for trial. No statements or 
 exhibits of the accounts, have been tiled with 
 the report. There are numerous excei)tions, 
 many of which relate to the form and partic- 
 ulars of the account: there is no reixjrt upon 
 the exceptions. And on account of the de- 
 ficiencies here noted, some of the exceptions 
 are not sufhciently intelligible to warrant me 
 in deciding upon them. Under the.se circum- 
 stances, I shall decide the general questions 
 of law and fact, pre.sented in the pleadings, 
 and refer the oa.se back to the Master, to be 
 more elaborately reported upofl as to the 
 details, and to have the report conformed 
 to the decree. 
 
 And lirst, as to the alleged mlsmanagemeut 
 and neglect of the executors, in the conduct 
 of the planting interest, of which they had 
 the charge. The complainant and Mr. and 
 Mrs. Ilanckel allege that there have been such 
 mismanagement and neglect on the part of 
 the executors, and consequent loss to them, 
 as to make the executors liable. It strikes 
 me that the agricultural operations of this 
 estate, conducted by the executors, have not 
 been successful. This is not sufticient of 
 itself, to make them responsible. If they 
 use the ordinary means of good farming, and 
 pursue the common agricultural sy.stem of 
 the country, with an adaptation of means to 
 ends which prudence and care would dictate, 
 this is all that is re<piired. It would be un- 
 just to make them insurers against the un- 
 
 •331 
 
 propitiousness of the seasons. *or those fail- 
 ures arising from natural and sometimes un- 
 perceived causes, which so often batUe the 
 skill and disappoint the hopes of the agricul- 
 turalist. Moreover, it is not to be expected 
 tluit an executor will, or can, (at least in 
 many instances,) devote his entire personal 
 attention to the management of the planting 
 business of the estate, to the abandonment 
 and neglect of his own affairs. It is not to 
 be expected, that he would devote the same 
 inten.se personal attention and care to an 
 estate of which he had charge as an execu- 
 tor, as he would to one of which he was the 
 proprietor. To riMjuire him to do this would 
 be to engro.ss the whole of his time. To 
 impose these terms uiHm his acceptance of 
 the trust, and to exact the performance of 
 them at his peril and cost, would be to estab--* 
 lish a rule to which few could be found will- 
 ing to submit. The conse(iuence would be, 
 that it would be ditticult to find competent 
 and worthy persons who would be willing to 
 
 135
 
 *331 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 assume these necessary, important and re- 
 sponsible trusts ; particularly where they in- 
 volved the management of a planting inter- 
 est. In some instances, where the estate 
 consists, as it does in this, of plantations and 
 negroes, there is a necessity imposed on the 
 executor of carrying on a plonting interest. 
 To hire out the negroes might sometimes 
 bring in a greater ready income. But in 
 such cases, the, negroes generally deteriorate, 
 and are not so prolific; and the homestead 
 and plantation are abandoned to dilapidation 
 and decay. I might pursue this train of 
 reflection farther, but it is unnecessary. 
 
 Upon an attentive consideration of the evi- 
 dence, I cannot perceive any such misman- 
 agement and inattentiou on the part of the 
 executors, as should subject them to liability 
 for unsatisfactory or deficient results. They 
 employed a skilful overseer, and one who had 
 enjoyed a high reputation in his line of busi- 
 ness. They pursued the ordinary routine of 
 making crops ; and if the crops were not as 
 abundant as might have been hoped or antici- 
 pated, I see no reason for making the execu- 
 tors responsible. And this is the judgment 
 of the Court on this point. 
 
 The next question which I shall consider 
 is, whether, for the balance found due on the 
 
 *332 
 accounts of the executors, the three *execu- 
 tors are jointly responsible ; or is G. W. Sea- 
 brook, who alone received the funds of the 
 estate, alone liable. I think that the evi- 
 dence warrants the conclusion that the three 
 executors acted in conjunction in their man- 
 agement of the planting interest ; and if 
 there had been such default in this respect, 
 as to have charged them for losses on ac- 
 count of deficient crops, they would all have 
 been jointly liable. But the question now is, 
 as to their liability for moneys actually re- 
 ceived ; and it appears that G. W. Seabrook 
 alone performed the duty of receiving and 
 disbursing the funds of the estate. Tfie ac- 
 counts were kept and made up in the name 
 of "the Executors of W. J. Clarke." But this 
 is only a matter of form ; and the proof is, 
 that Seabrook received all the money, and 
 made all the payments ; and the other two 
 executors not only did no act of this kind, 
 but there is no evidence that they concurred 
 in the receipts or payments of the acting 
 executor. Under these circumstances, I am 
 of the opinion that G. W, Seabrook is alone 
 liable for the balance due upon the execu- 
 tors's accounts. And it is accordingly so 
 decreed. 
 
 In regard to the apportionment and divi- 
 sion of the income of the estate among the 
 comphiinants, Mrs. Whaley and Mrs. Ilauck- 
 el, and the charges and allowances which 
 have been made in the way of rent, on ac- 
 count of the different fertility and produc- 
 tiveness of the several plantations, I am 
 satisfied with the decision and report of the 
 Master thereon, and for the reason which he 
 
 136 
 
 has given. And the report is, in this respect, 
 confirmed. 
 
 I come now to consider the claims set up 
 in behalf of Mrs. Whaley. 
 
 The first which I shall notice arises under 
 the following circumstances. She got no ne- 
 groes from her father's estate. Her grand- 
 father, Joseph James Murray, by a deed, gave 
 to his daughter, (Mrs. Whaley's mother, and 
 the first Mrs. Clarke,) certain negroes for 
 her life ; and at her death, he gave, by way 
 of limitation, the same negroes to her chil- 
 dren. She died in 1S21, and Mrs. Whaley be- 
 
 *333 
 
 ing her only cTiild, was then entitled *to the 
 negroes. But they were kept by her father, 
 the late Mr. Clarke, and used and employed 
 as his own. He appropriated the products of 
 their labor to his own use, kept no account, 
 and seemed to have contemplated no liability 
 for the rents and hire of these negroes. He 
 made no provision in his will, or otlierwise, 
 for the payment of this claim ; and he de- 
 clared and provided in his will, that in con- 
 sequence of his oldest daughter being enti- 
 tled to these negroes, in her own right, and 
 they being equal in value to one-third of his 
 own negroes, all his own negroes shouM be 
 equally divided among his two other chil- 
 dren and his wife. And this has accordingly 
 been done. 
 
 There cannot be a doubt but that the 
 claim of Mrs. Whaley, for the hire of the 
 negroes after her mother's death, was, at one 
 time, valid against her father's estate. It is 
 contended now, in reference to this claim, 
 that the will presents a case of election ; and 
 that in conseciuence of the devise of land by 
 the will to Mrs. Whaley, and her acceptance 
 thereof, that she is not to be allowed this de- 
 maud. It is supposed that, upon a fair con- 
 struction of the will, this claim is incompati- 
 ble with its provisions ; and that Mrs. Wha- 
 ley having elected to take the land devised 
 to her, cannot now be pernntted to recover 
 a demand which would be adverse. I think 
 differently. A doctrine has been invoked 
 which has no application. As to Mrs. Wha- 
 ley, the will presents no case of election. The 
 testator evidently contemplated equality 
 among the different members of his family, 
 as to negro property. But this claim was 
 a debt, honestly and actually due. He did 
 not affect to dispose of it, and said not a 
 word about it, in any way whatever. There 
 are no conditions, express or implied, impos- 
 ed by the will, as to the devise of land to 
 Mrs. Whaley. It is not a case of election. 
 
 But there are other difficulties. There 
 were former proceedings between these par- 
 ties, on a bill filed in 1S.39, in reference to 
 the estate of the testator. All the persons 
 now parties before the Court, were parties 
 to that bill. The widow of the testator, 
 Mrs. Hannahan, and Mr. Hannahan, her sec- 
 ond husband, were also parties. Mrs. Wha-
 
 CLARKE V. JENKINS 
 
 *336 
 
 ♦334 
 ley then set up aRuiiist tlie executors a •claim 
 for the hire of lier nejiroes after the testator's 
 death, which was allowed her. liut she ad- 
 vanced no claim for the hire that had ac- 
 crued lief(»re her father's <leath. She was 
 then an infant. The Triurt decn'ed that she 
 should ite paid the dift'erence hetween "Vine- 
 gar Hill," devised to her. and "Shell lianU," 
 devi.sed to her brother, W. J. Clarke. The 
 widow's share was exonerated from contri- 
 bution for this purpose. In etiualizinn the 
 value of her land, one-third was borne by her- 
 self, and two-thirds imposed as debts on the 
 share.s of J. J. Clarke and Elizabeth M. 
 Clarke. The amount of the dilTerence be- 
 tween the places wa.s found to be .$0040 ; 
 which entitled her to receive from her broth- 
 er and sister .$(!030. She afterwards inter- 
 married with the defendant, W. J. "Whaley ; 
 and he, on the ITtli November. 1S41. executed 
 to the executors a receipt for .$11,1222.70. 
 which included the amount due for the dif- 
 ference in the value of "Vinejxar Ilill" and 
 "Shell Bank," the nejrro hire due his wife, 
 that had accrued after testator's death, and 
 all other demands at that time claimed, or 
 thought to be due. The executors had de- 
 livered up the estate to the devisees and lega- 
 tees, before this claim was advanced. They 
 admit it to be a just demand, as it obviously 
 was in its inception. They make no objec- 
 tion to its being alh)wed, but contend that a 
 decree cannot go again.st them, on the ground, 
 that the claimants stood by and saw them 
 part with the control and possession of the 
 estate, without intimating a desigi\ to set up 
 this demand. There is only a small balance 
 now in the hands of one of the executors, 
 that remains to be accounted for. This rea- 
 soning, I think, is not to be resisted. If the 
 claim .should be allowed, a decree is not to be 
 made against the executors, except, perhaps, 
 so far as regards the small balance before 
 spoken of. But in case the claim is allowed, 
 the decree must be against J. J. Clarke and 
 Elizabeth Clarke, who have received the 
 property ; the claimants themselves bearing 
 their proportionate shares. 
 
 But in this view of the case, these parties 
 are not to be compromised by the pleadings 
 or admission of the executors, but they are 
 to be permitted to use the same grounds of 
 
 *335 
 defence that *the executors would, had they 
 been the parties liable, and the claim set up 
 against them. 
 
 In Dawson v. Dawson, MSS. Feb. 7, lSr.0, 
 under precisely the circumstances of the 
 case now before me a party was held to have 
 forfeited and lost, what could otherwise have 
 been considered as a just and valid claim. 
 A party is not allowed to litigate his rights 
 to the same subject matter by piece-meal. 
 Therefore, if a present claim before the Court 
 could have been adjudged in a former suit 
 between the same parties, and was not ad- 
 
 judged, because not advanced, the claimant 
 is concluded. The rule is that a former suit 
 is a bar to all matters that have been, or, 
 from the nature of the proceedings, nught 
 havt' iK'en adjudged. 
 
 Mrs. Whaley was an infant at the time of 
 the former i»ro(eedings. Admitting that this 
 fact would qualify the rule, and entitle her 
 to open the jiroceedings, (upon which p<ant I 
 exi)ress no dpinion.) yet on her conung of age, 
 or intermarriage with an adult, she nmst 
 proceed with diligence to assert her rights; 
 and failing to do this, she would, at all 
 events, be concluded. From Novemlier. 1841, 
 to IGth December, 1840, the claimants have 
 not impugned the correctness of the former 
 settlement. 
 
 Thus I think that .Mrs. Whaley is conclud- 
 ed and barred as to this claim, by the former 
 suit. I think she is concluded by the receipt 
 to the executors, considering it as a .settle- 
 ment without reference to a suit or decree. 
 Porter v. Cain, McM. Eq. 81. I also think 
 that the claim was barred by the statute of 
 limitations, which has run against it from 
 the date uf W. .J. Whaley's receipt. 
 
 Can the.se pleas and defences be available 
 to the parties in who.se favor they operate, 
 without being made in the pleadings'.' I 
 think they can. The claim is not set up in 
 a bill. It is brought forward by the N\ lial- 
 eys, not by bill, but in their answer, against 
 the comprainant and one of their co-defend- 
 ants. Keplications are not usual in the Court 
 of Equity in this State. Questions made, 
 and claims brought forward, in the manner 
 in which this has been done, are not required 
 
 ♦336 
 to be answered, ♦and are not presented ac- 
 cording to the strict rules of i)leading. I 
 think that the objections to the claims are 
 available in the manner in which they have 
 been presented, and I hold that the claim is 
 barred. And it is so ordered and decreed. 
 
 The next claim set up by Mr. and Mrs. 
 Whaley, is for interest on the sum of .$00.'i2, 
 which they received under the decree of the 
 Court in the former case, in the iMpializatiou 
 of the devises of the plantations. They con- 
 tend that this was a pecuniary legacy, and 
 should have biu'ne interest from one year aft- 
 er the testator's death. This may be a true 
 interpretation of that part of the will. I ex- 
 press no opinion. 
 
 But it is a late day to claim interest, so 
 long after the principal has been paid. If the 
 interest was due. I think it has been waived. 
 I think it is barred by the former bill, by the 
 settlement, and by the statute of limitations. 
 In fact, every objection against the claim for 
 negro hire, apitlies with equal force against 
 this. The claim is di.sallowed. 
 
 Another question raised in behalf of .Mi-s. 
 Whaley is, in regard to a charge of land- 
 rent made against her by the executors. The 
 executors, as has already been stated, culti- 
 vated the diilereut plantations together, for 
 
 137
 
 *336 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 the joint benefit of the parties interested. 
 Her place, "Vinegar Hill," was of au inferior 
 quality as to soil and productiveness. Her 
 liands have been worked in part on a better 
 place, and she has had the benefit of it. For 
 this she has been charged rent. The amount 
 charged is reasonable, according to the testi- 
 mony ; and in making the charge, the use of 
 her own land in the joint cultivations has 
 been considered. The exception is overruled. 
 There is only one more topic which I will 
 discuss. I do not think it proper, in the ex- 
 amination of the executoi^s's accounts, to go 
 farther back than the decree made upon them 
 in the former bill. As far as they are affect- 
 ed by that decree, they are to be presumed 
 to be correct. From this stage in the ac- 
 counts, the Master will examine them in the 
 usual manner. 
 
 *337 
 
 *There are some errors that have confes- 
 sedly crept into the statement of the ac- 
 counts. These will, of course, be corrected. 
 
 It is ordered and decreed, that this case 
 be re-committed to the Master, that he con- 
 form his report to the principles of this de- 
 cree, and that he correct all errors that may 
 appear in his statement of the accounts. 
 
 The defendants, W. J. Whaley and wife, 
 appealed, on the grounds, 
 
 1. Because the bill of 1839 having been 
 filed by the executors for instructions as to 
 the mode of paying all the debts of the tes- 
 tator, no particular debt is forfeited because 
 not specially mentioned to the Court at that 
 time by the creditors or executors, but, on 
 the contrary, the decree protects the debt. 
 
 2. Because the receipt of 1841 does not 
 affect to be, nor is in law or in fact, a re- 
 ceipt in full of all demands; on the contrary, 
 the executors, at the same time that they 
 produce the receipt, admit that Mrs. Whaley 
 is still a creditor to a large amount. 
 
 3. Because the debt to Mrs. Whaley for 
 hire, being admitted by the executors to be 
 due, the statute of limitations is inapplica- 
 ble, and she is entitled to a decree therefor 
 against G. W. Seabrook. 
 
 4. Because G. W. Seabrook being admitted 
 to be insolvent, the complainant and Mrs. 
 Hanckel ought to refund for the payment 
 of this debt. 
 
 5. Because neither the complainant nor 
 Mrs. Hanckel, can plead the statute of limita- 
 tions in bar to the claims of Mrs. Whaley. 
 
 6. As to the decree under the bill of 1839 — 
 Because the proceedings in that suit cannot 
 bar her rights under that decree. 
 
 7. Because the plea of the statute of lim- 
 itations cannot be pleaded to a decree of this 
 Court. 
 
 8. Because the receipt of 1841 is not a set- 
 tlement in full of the decree, nor has the 
 same been pleaded as such by the executors, 
 or by the complainant, or by Mrs. Hanckel. 
 
 9. Because the decree and so much of the 
 
 138 
 
 *338 
 interest as is *unpaid, is a valid and subsist- 
 ing charge upon the estates of the complain- 
 ant and Mrs. Hanckel. 
 
 The complainant also appealed, on the fol- 
 lowing grounds. 
 
 1. Because the complainant was entitled to 
 an account of the profit or income of his 
 property in the hands of the executors of W. 
 M. Clarke, who were also the guardians of 
 complainant, and this account has never been 
 rendered. 
 
 2. Because the executors, in the testimony 
 which they introduced, established the fact, 
 that of the income which they derived and 
 disbursed, a much larger proportion was de- 
 rived from the property devised to the com- 
 plainant than from the property devised to 
 the other children. And the complainant 
 submits that they are bound to account with 
 him for their application of the income aris- 
 ing from his share of the estate. 
 
 3. Because the executors were, and are, 
 jointly liable to the complainant. 
 
 Magrath, Yeadon, for complainant. 
 Memminger, J. M. Walker, McCrady, for 
 defendants. 
 
 WARDLAW, Ch., delivered the opinion of 
 the Court. 
 
 The questions raised by the grounds of ap- 
 peal in this case may be considered most con- 
 veniently, by taking up the points decided in 
 the circuit decree. 
 
 1. Neglect is imputed to the executors in 
 the management of the plantations under 
 their charge. 
 
 The Master and the Chancellor concur iu 
 the conclusion, that there has been no mis- 
 management ; their judgment upon a mat- 
 ter of fact would not be disturbed by us, 
 where there was testimony upon both sides, 
 upon any doubt as to the weight of evidence. 
 Here their judgment is amply sustained by 
 the eviden^-e. 
 
 2. It is complained, that the executors have 
 treated the several plantations of the chil- 
 dren of testator as one estate, without sep- 
 aration of the income of each devisee, where- 
 as the land of plaintifl: was more productive 
 than the land of either of the other two, and 
 the laud of Mrs. Hanckel more productive 
 
 *339 
 than *the land of Mrs. Whaley. In the judg- 
 ment of the Master and Chancellor, which 
 we are not disposed to controvert, Mrs. Whal- 
 ey has made sutticient compensation to the 
 plaintiff and Mrs. Hanckel for the superior 
 productiveness of their lands, by the pay- 
 ment of $2095 for rent of their lands; and 
 as the slaves bequeathed to the latter two 
 were liable, by the decree of 1839, to the 
 payment of $6030 to Mrs. Whaley, to pro- 
 duce equality among the three devisees, we 
 see no reasonable objection to the executors's 
 conduct in managing the estate as a common
 
 CLARKE V. JENKIXS 
 
 •341 
 
 property, until the debts, Including the $0030, 
 were extin^-'uished. 
 
 3. A daiiu is set up, in behalf of Mrs. 
 Whaley, for the hii"e of her negroes from the 
 death of her mother until the death of her 
 father, about ten years. One of the grounds 
 upun which the Chancellor rejects this claim, 
 is. that it was a matter litigated, or proper 
 for litigation, in the former case between the 
 parties to the present suit, reported as Jen- 
 kins V. Ilanahan, (Chev. Eti. lliU.i That a for- 
 mer decree, or judgment, is a bar to further 
 litigation between the parties and privies, as 
 to the same subject of controversy, is hrndy 
 e.stablished in this Court. (McDowall v. Mc- 
 Dowall, Bail. Eq. 3;i0; Tate v. Hunter, 3 
 Strob. 10(1. 136.) The infancy of a party at 
 the time of the former decree, is no ground 
 of exception to the estoiipel; for an infant is 
 bounil, as fully as an adult, by a decree, un- 
 til it lie reversed. (Story's Eq. PI. § 792; 
 Spencer v. Bank, Bail. Eq. 468; Iluson v. 
 Wallace, 1 Rich. E(i. 1.) But the oliscurity of 
 the facts as i)resented to us. makes the ap- 
 plication of the doctrine somewhat doubtful 
 in this matter ; and the necessity of scrutiny 
 into the facts is superse<led as other objec- 
 tions to this claim clearly appear. At the 
 foot of an account, containing a demand 
 against the executt)rs for the hire of Mrs. 
 Whaley's negroes after the death of her fa- 
 ther, her husband, then adult, and entitled 
 to receive her choses in action, November 
 17, 1841, signed a receipt in full to the ex- 
 ecutors. The omission, at that time, to 
 set up any claim for the hire of Mrs. 
 Whaley's negroes before the death of her 
 father, amounts to a waiver and aban- 
 donment of such claim. (Chesnut v. Strong, 
 
 *340 
 1 Hill Eq. 128.) *It is the duty of the Court 
 to give full effect to private .settlements be- 
 tween parties of adverse interests, ut sit finis 
 litium. (Eraser v. Hext, 2 Strob. Eq. 2.50.) 
 
 If the party might have opened this re- 
 ceipt upon any ground of equity, such as 
 fraud or mistake, the statute of limitations 
 would begin to run against the exercise of 
 such right from the date of the receipt; and 
 here the bar of the statute was complete be- 
 fore this claim was stirred. It may be men- 
 tioned, although the fact is not regarded as 
 important, that Mrs. Whaley herself was of 
 full age more than four years ante litem 
 motam. It is urged, however, that the ac- 
 knowledgment by the executors of the justice 
 of the claim, removes the bar of the statute, 
 and revives the demand. But the acknowl- 
 edgen)ent was after the claim had been fully 
 barred, and was not accompanied by any 
 promise to pay; and under such circumstanc- 
 es the debt would not be revived against an 
 original debtor; much less against a legal 
 representative to create liability through him 
 upon legatees or distributees. The mere 
 omission of the executors to plead the stat- 
 ute, will not preclude other parties, who may 
 
 be charged with the debt, from availing 
 themselves of the defence. (Shewen v. Van- 
 derhor.st, 1 Rus. & Myl. 347.) One legatee 
 can make reclamation of another only 
 through the executors, and upon some ground 
 of trinity that entitles the executors to be 
 reimbur.«ed for the erroneous api»ropriation 
 of the assets. How could executors establish 
 such grounds of equity, after they had will- 
 fully refrained from resorting to a legal de- 
 fence V 
 
 4. Mr. & Mrs. Whaley propounded another 
 claim, for interest (m the .$00.'?0 decreed to 
 her for e<iuality. The principal sum was in- 
 cluded ill the account, at the foot of which, 
 W. J. Wiialey gave a receipt in full in No- 
 vember, 1S41. The interest should have been 
 claimed then, if ever. The claim of it now, 
 is liable to all the defences which have been 
 considered to exclude her demand for hire. 
 More than that: this claim was never well 
 founded. It is not allowed in terms by the 
 decree of 18.3!); and it is not just that she 
 should receive interest on a sum representing 
 land devised to her, while the profits of the 
 
 ♦341 
 lands of *her co-devisees are in the cour.se of 
 appropriation to make her land of equal 
 value with theirs respectively. 
 
 5. The remaining (luestion is as to the joint 
 liability of all the executors for the acts of 
 each. The effect of our decision upon the 
 first point — as to mismanagement of the plan- 
 tations — is to restrict this eutiuiry to the sub- 
 ject of the pecuniary assets of the estate 
 received by CJ. W. Seabrook. As to the re- 
 ceipts and payments, he alone was the acting 
 executor; and no act of concurrence, on the 
 part of the co-executore, appears in the evi- 
 dence. Indeed we are not furnished with 
 any proof of his misapplication of the assets. 
 Every executor has a several right to receive 
 the assets of the estate; and he who re- 
 ceive.s, is exclusively answerable for the mis- 
 application of them, unless his co-executors 
 have contributed to enable him to get posses- 
 sion of them, or have acciuiesced in his ap- 
 Iiropriation of them, contrary to the trusts of 
 the will, knowing of such misapplication. 
 Here his co-executors have been merely pas- 
 sive; they have not obstructed (i. W. Sea- 
 brook in getting possession of the as.sets ; 
 and they are not responsible for his acts. 
 (Langford v. Gascoyne, 11 Ves. .335 ; Atche- 
 son V. RolxM-tson, Col. Dec. 1850, ante, p. 
 132 [55 Am. Dec. 634].) 
 
 It is not our purpo.se, in this opinion, to 
 conclude the parties on any matter outside of 
 the case made for our decision. The equities 
 of the parties as to the distribution of the 
 funds remaining in the hands of the acting 
 executor, will be determined when they are 
 properly presented. 
 
 It is represented to us, that the plaintiff 
 and Mrs. Whaley have died since tiie filing of 
 the circuit decree. Leave is granted, to any 
 party, to take the necessary steps for revivor. 
 
 13d
 
 *341 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 Ordered that the circuit decree be affirmed 
 and the appeal be dismissed. 
 
 JOHNSTON, DUNKIN and DARGAN, CC, 
 concurred. 
 Appeal dismissed. 
 
 3 Rich. Eq. *342 
 *JAMES R. PRINGLE and JULIUS ST. 
 JULIEN PRINGLE, Executors of Elizabeth 
 M. Pringle, v. WILLIAM RAVENEL and 
 Wife et al. 
 
 (Charleston. Jan. Term, 18.51.) 
 
 [Wills <©=j718. 781.] 
 
 By marriage settlement the survivor liad 
 power, by will, to fix the proportion eacli child 
 should take of the settled estate: the wife sur- 
 vived, and on bill for settlement of the hu.s- 
 band's estate, by a consent decree, the trustee 
 under the settlement became the purchaser, to 
 and for the uses of the settlement, of the hus- 
 band's separate estate, and entered into bonds 
 to pay, as trustee, to each child, a certain 
 sum, the value of its share of the husband's es- 
 tate: the wife died leaving a will, by which she 
 devised and bequeathed the trust and other 
 property to the children, and directed that her 
 several devises and bequests should be taken 
 by her devisees and legatees in full satisfaction 
 of any demand on herself, or her estate, or 
 the estate of her deceased husband; the bond 
 of the trustee to E. R. one of the children, was 
 unpaid at the death of the wife: Held, that the 
 acceptance of E. R. of the devises and bequests 
 to her operated as a satisfaction of the bond. 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. §§ 1718, 2016; Dec, Dig. <®=»718, 781.] 
 [This case is also cited in Matthis v. Ham- 
 mond. 6 Rich. Eq. 402, without specific ap- 
 plication.] 
 
 Before Dunkin, Ch. at Charleston, June, 
 1850. 
 
 The bill stated that, by marriage settle- 
 ment, made between plaintiff's father, James 
 Reid Pringle and Elizabeth Mary Pringle, by 
 her then name of Elizabeth Mary McPherson, 
 and Susanna McPherson, James E. McPher- 
 son, and John Julius Pringle, trustees, bear- 
 ing date the 18th day of March, 1807, certain 
 real and personal estate ; and also certain 
 reversionary interests to whicli the said Eliz- 
 abeth Mary was entitled under the will of 
 her father, General John McPherson, were, 
 by her, with the consent of the said James 
 Reid Pringle, conveyed to the said trustees, 
 among other uses, after the marriage then 
 expected, and shortly after solemnized be- 
 tween the said James Reid Pringle and Eliz- 
 abeth Mary McPherson, to the use of hus- 
 l)and and wife during life, and the survivor 
 for life, and after the decease of the surviv- 
 or, "to the use of all and singular, or such 
 one or more of the clnldren of them the said 
 Elizabeth Mary McPherson and James Reid 
 Pringle, and for such estate and estates in 
 such parts and proportions, manner and 
 form, with or without power of revocation as 
 the said Elizabeth Mary McPherson and 
 James Reid Pringle shall, at any time or 
 
 *343 
 times during their joint lives, *by any deed 
 
 or deeds, writing or writings, under both their 
 hands and seals, attested by two or more 
 credible witnesses, direct, limit and appoint ; 
 and in default of such direction, limitation 
 and appointment, and in case any such shall 
 be when and as soon as the estates and inter- 
 ests thereby limited shall respectively end 
 and determine, and as to such part or parts 
 of the premises where no such direction, 
 limitation or appointment shall be made, 
 then, as the survivor of them, the said Eliza- 
 beth Mary McPlierson and James Reid Prin- 
 gle, shall, at any time or times, during his 
 or her life, by any deed or deeds, writing or 
 w'ritings, under his or her hand and seal, 
 attested by three or more witnesses, or by 
 his or her last will and testament, in writing, 
 to be by him or her, signed, sealed and pub- 
 lished, in the presence of the like number 
 of witnesses, direct, give, limit and appoint, 
 the same as aforesaid ; and, in default of 
 such direction, limitation, gift and appoint- 
 ment, or in case any such shall be, when and 
 so soon as the estates and interests thereby 
 limited shall respectively end and determine, 
 and as to such part or parts of tlie premises 
 whereof no direction, gift, limitation or ap- 
 pointment as aforesaid, shall be made, to the 
 use of all and every, the child or children of 
 the said Elizabeth Mary McPherson and 
 James Reid Pringle," &c. 
 
 That Susanna McPherson, by her last 
 will and testament, bearing date the 20th 
 day of August, 1834, gave and bequeathed 
 to the said James Reid Pringle, one-third 
 part of the residue of her estate, in trust, 
 for the sole and separate use of her daugh- 
 ter, the said Elizabeth Mary Pringle, during 
 her life, and after her death, to her children 
 then living: and appointed the said James 
 Reid Pringle one of her executors. 
 
 That on the 11th day of July, 1840, the said 
 James Reid Pringle died intestate, leaving 
 the said Elizabeth Mary Pringle surviving 
 him, and leaving issue, the plaintiffs, and 
 Eliza Butler, wife of William Ravenel, and 
 Rosamond Miles Pringle, and having had is- 
 sue of the said marriage, one son and three 
 daughters, who had died before him; that 
 administration of his estates and effects was 
 committed to the plaintiff, James Reid 
 *344 
 
 *Pringle, and for the settlement of his es- 
 tate, a bill was filed, wherein Elizabeth Mary 
 Pringle, William Kavenel, Eliza Butler Ra- 
 venel, Julius St. Julien Pringle, and Rosa- 
 mond Miles Pringle, were complainants, and 
 the plaintiff, James R. Pringle, defendant; 
 and an account was taken between the said 
 James Reid Pringle, and the trust estate un- 
 der the marriage settlement, and also an ac- 
 count of the funds which came into the hands 
 of the said James Reid Pringle as trustee 
 of his wife, under the will of Mrs. :McPher- 
 son, and the said Elizabeth Mary Pringle, 
 
 140 
 
 ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 PRIXGI.E V. RAVENEL 
 
 *346 
 
 became the purchaser of his estate, and un- 
 dertook to pay to his chililien the sum of 
 seventeen thousand seven hundred and one 
 dollars, sixty-four cents, as the amount of 
 two-thirds nf his estate afti'r the payment 
 of debts, wliioh arranj;ement, on the liOth 
 day of May, 1841, was carried into etTi'Ct by 
 a decree of this Court. («) 
 
 That soon after the sfttU>mt'nt of the said 
 estate, the said Elizabeth Mary Trin^-de en- 
 tered into a bond to William Uavenel con- 
 ditioned for the payment of .«4,4-_'r).41, being 
 the i>ortion of the said Eliza 1'.. Havt-nel in 
 her father's said estate, and the said Wil- 
 liam Kavenel soon afterwards assi^'ned the 
 said bond, and all the interest and estate 
 of the said Eliza B. Kavenel, under the mar- 
 riage settlement, and the will of Mrs. Mc- 
 pherson, to the plaintiff, James Ueid I'ringle, 
 in trust for husband and wife for life, and 
 to the survivor for life, and to the issue of 
 
 *345 
 the mar*riage, as the survivor may appoint, 
 
 and in default of issue to the survivor in 
 fee. {h) 
 
 That plaintiffs's mother, the said Elizabeth 
 Mary I'r ingle, by her last will and testa- 
 ment in writing, bearing date the 14th day 
 of April, lS4n. in e.xe(Utit)n of her power of 
 appointment, and in exerci.se of her rights of 
 proi)erty. undertook to dispose of all the 
 tru.st estate under the marriage settlement, 
 as well as her mother's will, and gave her 
 
 *346 
 son-in-law, William Kavenel, ♦one tht)usand 
 dollars, and legacies to her grandehildren, 
 Catharine I'rioleau Kavenel, James Pringle 
 Kavenel, and Elizabeth Mcl'herson Kavenel, 
 (the legacy to Catharine I'rioleau Kavenel be- 
 ing a slave belonging to the trust estate.) 
 and to plaintiffs, an undivided fourth part of 
 the plantation and negroes, and other real 
 and personal property in trust, for the sole 
 and separate use of her daughter, Eliza But- 
 ler Kavenel, during the joint lives of herself 
 
 (rt) So much of the consent decree, of 29th 
 May. 1S41. as is necessary to a proper under- 
 staiuliug of this case is as follows. 
 
 "Ou hearing the Master's report in this case, 
 and on motion of Mr. DeSaussure, complain- 
 ant's solicitor, ordered that tlio same be con- 
 tirmed. And it is furtlier ordered and decreed 
 that James W. Gray, Master in E(iuity. do con- 
 vey to James R. I'ringle, the trustee substituted 
 in'heu of John Julius Pringle. at the present 
 term, as trustee, under the marriage settlement 
 of Mrs. Elizabeth M. I'rinsle. uikhi the trusts, 
 and subject to the conditions ami limitations 
 expressed therein, the plautatinn on Santee riv- 
 er, called the Marsh, cmitaining two hundred 
 and forty acres— also, the plantation adjoining 
 the above, on Santee river, containing two hun- 
 dred and six acres of swami) bind ; also, the 
 small lot and house on South Island: also, the 
 h)t of land, witii the dwellinu: lionse thereon, in 
 Cannonsborouuh. on Charleston Neck, all which 
 premises are fully described in the pleadings." 
 "And that the said James R. I'ringle hold, to 
 the uses of tlie nuirriage scttliMiient. the remain- 
 ing sixteen negroes, mentioned in Schi'dulc No. 
 Ii. as standing in the name of his testator, nine 
 of whom are taken to supply the i)la<e of nine, 
 which were siild by the late Janu's K. I'ringle, 
 belon'j;ing to the trust estate, and seven, to make 
 up the seven due by the ScIumIuIc No. .".. And 
 it is further ordered and dei'reed. that the saitl 
 trustee do pay, with the funds of the trust es- 
 tate, tiie sum of sixteen thousand and sixtj'- 
 eight dollars, and forty-one cents, with the ac- 
 cruing interest thereon, being the amount of the 
 
 *345 
 debts *the said James K. Pringle, deceased, re- 
 ported by the Master. And it is further ordered 
 and decreed, that the said trustee do pay, from 
 the funds of the trust estate, to the four chil- 
 dren of James K. I'ringle, deceased, seventeen 
 thousand, seven hundred and one dollars and 
 si.\ty-six cents, with interest from the date of 
 this decree, in equal shares, to wit.— to Mrs. 
 Eliza I?. Kavenel, and William Kavenel. her 
 luisliand. the sum of four (liousand. four hun- 
 dred and twenty-fivf> dollars and forty-one cents; 
 to himself, the said James K. I'rimile. the sum 
 of four thousand five luuidred and twenty-five 
 dollars and forty-one cents ; and, to the dtdy 
 appointed ;;uardian of Rosamond M. I'ringle. the 
 sum of four thousand, five hundred and twenty- 
 hve dollars and forty-one cents; and to the duly 
 appointed guardian of Julius St. Julien I'ringle, 
 the sum of four thousaml five hundred and 
 twenty-live dohars and forty-one cts." 
 
 (b) The bond here referred to was, in fact, 
 the bond of James R. Pringle, trustee, and is 
 as follows. 
 The State of South Carolina. 
 
 Know all men by these presents, That I, 
 James R. Pringle. substituted trustee, under 
 the marriage settlement of -Mrs. Elizabeth M. 
 I'ringle. in conformity and obedience to a de- 
 cree of the Court of Eiputy. made on I'Oth May. 
 1S41. at Charleston, in a certain cause, wherein 
 the said Elizabeth M. I'ringle and her children 
 are complainants. an<l James K. I'riugle, ex- 
 ecutor of James K. I'ringle, deceased, is defend- 
 ant, acknowled?ie myself, as trustee under the 
 said marriage settlement, to be held and firmly 
 hound unto James K. I'ringle. trustee under the 
 marriau'e settlement of William Kavenel and 
 Eliza P.. his wife, in the full and just sum of 
 eisiht thousand eight hundred and fifty dollars, 
 eiiihtv-two cents, to be paid to the said James 
 R. I'riniile. trustee of William Ravenel, and 
 J-:iiza B his wife, his certain attorney, execu- 
 tors and administrators, or assigns ; to which 
 payment, well and truly to be made and done. 
 I hind myself, and each and every one of my 
 heirs, executors and administrators, jointly and 
 severally, firmly by these presents. 
 
 Sealed with my seal, ami dated at Charleston, 
 the tweuty-nintli day of May. in the year of 
 our Lord' one thousand eight hundred and 
 forty-iuu'. and in the sixty-fifth year of the 
 Sovereignty and Independence of the United 
 States of America. 
 
 The condition of the above obligation is such. 
 That if the above bound James K. I'ringle. 
 trustee of Elizabeth M. Pringle. his heirs, ex- 
 ecutors, and administrators, shall and do well 
 and truly pay, or cause to be paid, unto the 
 above named James R. Priniib', trustee of Wil- 
 liam Ravenel and Eliza B. his wife, [theirl cer- 
 tain attorney, executors, administrators or as- 
 signs, the full and just sum of four thousand 
 four hundred and twenty-five dollars and forty- 
 one cents, with legal interest from the date, 
 payable annually, in two eipial successive in- 
 stalments, the tirst instalment whereof is to 
 be paid on or before the twenty-ninth day of 
 May, which will he in the year of our Lord, 
 one thousand eight hundred and forty-two, with- 
 out fraud, or further delay, then the above ob- 
 ligation to be void, and of none effect, or else 
 to remain in full force and virtue. 
 
 (Signcil) James R. Pringle. 
 
 Seale(i and delivered in the presence of 
 (Signed) H. A. De Saussure. 
 
 141
 
 »346 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 and husband, and in case she should die in 
 his lifetime, to the use of her issue then liv- 
 ing; the issue of a deceased child to take 
 the parent's share and no more, and in de- 
 fault of issue, as she may appoint; and in 
 case she should survive her husband, to her 
 absolute use and behoof forever freed and 
 discharged from all other and further 
 trusts. And declared the same trusts of the 
 estate given to her daughter Rosamond Miles 
 Pringle, and directed that her several lega- 
 tees should receive their legacies as a satis- 
 faction of all demands, on her or her estate, 
 or that of her late husband. 
 
 That the testatrix afterwards, on the 14th 
 day of August, 1843, departed this life, leav- 
 ing the said will in full force ; and plain- 
 tiffs, as executors therein named, proved 
 the same, and have undertaken the execu- 
 tion thereof; but are unable to proceed with- 
 out the aid of this Court. 
 
 That it is denied that the said power of 
 appointment to which the said Elizabeth 
 Mary Pringle was entitled, authorized her 
 to limit estates to her grandchildren ; and 
 it is also denied that the legatees are bound 
 to elect between provisions made by the 
 settlement and the will of Mrs. McPherson, 
 and that made by the testatrix ; and the said 
 William Ravenel insists that the share to 
 which the said Eliza Butler Ravenel is en- 
 titled, under the marriage settlement of her 
 parents, and the will of her grandmother, 
 should be held by the plaintiff, James Reid 
 Pringle, subject to the uses which have been 
 declared thereof by the assignment of the 
 same in trust, as before mentioned. And 
 that the bond of the testatrix for Mrs. Ra- 
 venel's part of her father's estate should be 
 satisfied ; whereas, the plaintiffs insist that 
 
 *347 
 the testatrix had the power to ap*point, and 
 that the said power is well executed by her 
 will, and that the parties interested must all 
 elect whether to take under or against the 
 will of the testatrix. And the bill prayed 
 that the trusts of the said will may be de- 
 clared and executed under the sanction of 
 this Court, &c. 
 
 Dunkin, Ch. The first inquiry is, whether 
 the will of Mrs. Pringle is a due execution 
 of the power of appointment, vested in her 
 by the settlement of 1807. It is very clear, 
 that such was the purpose of the testatrix. 
 In the recital, it is declared, that the will is 
 made "as a disposition of all the estate 
 which I may dispose of, either in my own 
 right, or by virtue of any power." If she 
 has failed, it is from a misapprehension of 
 the extent of her authority. 
 
 On the part of the defendants, William 
 Ravenel and wife, it is insisted that, under 
 the marriage settlement, Mrs. Pringle had no 
 authority to limit any part of the property 
 to her grandchildren, and that such limita- 
 tion is void. The settlement declares that, 
 upon the decease of the survivor of them, 
 
 142 
 
 "the property shall be held to the use and 
 behoof of all and singular, or such one or 
 more of the children of them, the said Eliza- 
 beth Mary McPherson and James Reid Prin- 
 gle, and for such estate and estates, in such 
 parts and proportions, manner and form, with 
 or without power of revocation, as they, the 
 said Elizabeth Mary McPherson and James 
 Reid Pringle, may direct, limit and ai)point, 
 and, in default of such direction, limitation 
 and appointment," &c., "then, as the survivor 
 of them, the said Elizabeth M. McPherson 
 and James R. Pringle," shall, at any time, by 
 deed or will, "direct, give, limit and appoint 
 the same as aforesaid." 
 
 The important clause of Mrs. Pringle's will 
 is as follows: — 
 
 "Item. To the use of my daughter Eliza, 
 (Mrs. Ravenel,) subject to the trusts herein- 
 after mentioned, and ro my sons, Jas. Reid 
 and Julius St. Julien, and my daughter Rosa- 
 mond Miles Pringle, I give my plantation, 
 and all my lands on Santee River, in the 
 parishes of Prince George, Winyah, and St. 
 James', Santee, and all the negro slaves em- 
 ployed on the said plantation," &e. "And, to 
 provide against the casualties of commerce, 
 
 *348 
 from *which the most prudent are not se- 
 cure, I do hereby declare the following trusts 
 of the property bequeathed to the use of my 
 daughter, , Eliza Butler Ravenel, that is to 
 say: — the estate, so bequeathed to my said 
 daughter, shall not be vested in her, but in 
 my sons, James Reid Pringle and Julius St. 
 Julien Pi-ingle, as her trustees, to have and 
 to hold the same to the said trustees and 
 their heirs, upon the following trusts, that is 
 to say, upon trust, for the sole and separate 
 use of my daughter, Eliza Butler Ravenel, 
 during the lives of her and her said husband, 
 and, if she should die in the lifetime of her 
 said husband, then to the use of her issue 
 then living, the issue of a deceased child to 
 take the parent's share and no more ; but, 
 if she should die in the lifetime of her said 
 husband, without leaving issue, then to such 
 uses as she, by her last will and testament, 
 may limit and appoint ; and, in case she 
 should survive her said husband, then to her 
 absolute use and behoof forever, freed and 
 discharged from all other and further trusts." 
 
 The argument seems to be, that the limita- 
 tion to the children of Mrs. Ravenel, on her 
 death, in the lifetime of her husband, is an 
 excessive execution of the power, and null 
 and void. Robinson v. Hardcastle, (2 Bro. C. 
 O. 22,) bears a striking analogy to this case. 
 Tlie power was there created by a marriage 
 settlement, and was executed by the will of 
 the husband. Lord Thurlow, before whom 
 the cause was heard, said, that except the 
 case of Cavendish v. Cavendish, he knew of 
 no case where it had been decided that an 
 appointment to grandchildren is a good ex- 
 ecution of a power to divide among children. 
 If that case be so decided, he believed it was
 
 PRIXGLE V. RA^'KXEL 
 
 *351 
 
 the first case to that purpose. "^Vhat Is a 
 perpetuity." continues he, afterwards, "but 
 the extendins the estate beyond a life in be- 
 ing, and twenty-one years after. That woukl 
 have been the effect of this, if done l)y de- 
 vise; the question, therefore, is, wlietlier, by 
 the intervention of a power a grantor may 
 extend the estate beyond the rule.s of law, 
 to what the law terms a perpetuity'.'"' A case 
 was directed for the opinion of the Court of 
 King's Bench; and P.uUer, J., in delivering 
 the judgment, or rather the reasons, uf tlie 
 
 *349 
 ♦Court, says: "I take it to be a clear rule 
 of law, on the execution of a power, tiiat the 
 execution must have a reference to the \}o\\- 
 er itself; and that a person, claiming under 
 the execution, takes under the deed by which 
 llie power is created ; and, therefore, that 
 the uses, limited by the power, must be such 
 as would have been good if limited by the 
 original deed. If that rule be law, it puts 
 an end to the case." (2 T. R. 2r)2.) So if 
 the uses, limited by the will of Mrs. Pringle 
 to the children of Mrs. Ravenel, had been so 
 limited in the original settlement. (Mrs. 
 Ravenel not being then in exi.stence,) it seems 
 tpiite clear that they would have been too re- 
 mote and void. But, as was said by Ix)rd 
 Xorthington, in Marlborough v. Godolphin, 
 (1 Eden, 404,) if the grantor could not lock 
 lip his proi^erty in this manner him.self, nei- 
 ther can he deliver up the keys to another, 
 and empower him to do it. The will of Mrs. 
 I'ringle, being no more than an execution of 
 the power, this limitation to the children is 
 consequently inoperative and void. The re- 
 sult, or effect, is not equally clear. 
 
 In reference to the valuable estates, includ- 
 ed in the clause already cited, the scheme or 
 purpose of the testatrix is not easily to he 
 misapprehended. She designed to exe<'ute her 
 power of appointment, then to make an eipial 
 division of the property among her four chil- 
 dren, as between themselves ; and, lastly, to 
 place her daughters on precisely the same 
 footing, in regard to the restrictions and lim- 
 itations of the estates designed for them re- 
 si)ectively. These, in the opinion of the Court, 
 were the leading objects of the testatrix, to 
 which every provision of the clause was in- 
 tended to be subordintite. If any of these 
 provisions prove inoperative, as violating the 
 rules of law, or transcending the authority 
 of the testatrix, this should not be i)ernutted 
 to defeat the general design, if it may be 
 carried Into effect without reference to those 
 inoperative designs. The estates on Santee, 
 with the negroes, &c., upon them, are ap- 
 pointed to her four children. To three out 
 of four, the terms of the ai)pointnient, in the 
 first part of the clau.se, are in the most ab- 
 i<olute and unqualified language, and "I re- 
 
 ♦350 
 quest," she adds, "that the said *p;aiitation 
 and negroes be not divided, as long as the 
 parties can agree iu the management of the 
 
 property, believing that, as a joint estate, it 
 will conduce most to their advantage." 
 
 The testatrix then proceeds, "and to pro- 
 vide against the casualties of conunerce, from 
 which the most prudent are not secure. I do 
 hereby declare the following trusts of the 
 property bequeatlunl to the u.se of my daugh- 
 ter, Eliza Butler Ravenel." It is then de- 
 clared, that the property shall be held by the 
 trustees "for the sole and separate use of 
 Mrs. Ravenel, during the joint lives of her 
 husband and lier.«<elf, and if she should die, 
 in the lifetime of her husband, then to the 
 u.se of her issue then living. ' vVrc. The testa- 
 trix had an undoubted right to restrict the 
 estate of her daughter to her sole and seiv 
 arate use. and the only part of the declara- 
 tion which exceeds the power, is the limita- 
 tion to the issue of the marriage on the con- 
 tingency conteniplatfd. A similar condition 
 is annexed to the gift of the lands and ne- 
 groes given to her daughter, Rosamond Miles 
 I'ringle. And it will be more simple, first to 
 consider her interests in connection with the 
 authorities to be cited. The first part of tlie 
 clause gives in as absolute terms to Rosa- 
 mond as to James Reid and .Tulius St. Julien. 
 Afterwards the condition, (as it is called.) is 
 annexed to this "gift of land and negroes," 
 to wit, that, on her marriage, a settlement 
 should be made declaring the property sulv 
 ject to the same uses as those declared "of 
 the testatrix's daughter. Eliza." In Arnold 
 V. Congreve, (1 Rus. & Mylne. L'tK),) Sir Thom- 
 as I'lumer, after holding that a limitation to 
 children of grandchildren was. in the partic- 
 ular case, void for remoteness, uses this lan- 
 guage: "The testatrix, having by her will, 
 given her grandchildren absolute interests, 
 has made a codicil, expressing her desire 
 that they should take only life estates, in or- 
 der that their children might take in succes- 
 sion after their deaths ; that her sole object 
 in making the codicil was to let in those chil- 
 dren of grandchildren : that that puri)ose nec- 
 essarily failed, and that, as the great-grand- 
 children could not take, the intention of the 
 testatrix would be best effectuated l)y hold- 
 ing, that the absolute interests given to the 
 
 *351 
 grandchildren by the will, were not des*troy- 
 ed by the codicil." So here, the gift to 
 Rosamond is absolute. The subseiiuent at- 
 tempt to limit the succession, i)eing mellectu- 
 al for the purpc»se intended, should not be 
 permitted to cut down the absolute estate, 
 previously well given. And this rejection of 
 (jualifying clauses, ineftectually attenqited to 
 be engrafted on a previous absolute gift, 
 equally obtains where the whole is contain- 
 ed in the same testamentary paper; it being 
 considered that the testator intends the prior 
 absolute gift to prevail, except so far only as 
 it is effectually superseded by the subseciuent 
 qualified one. (1 Jarm. 257.) Carver v. 
 Bowles is cited as authority. In that case, 
 a testatrix, having, mider u marriage settle- 
 
 143
 
 •351 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 ment, a power of selection in favor of her 
 children, appointed the settled fund absolute- 
 ly, in equal shares, to her five children, two 
 sons and three daughters, and then declared 
 that the shares of each of her daughters 
 should be held to her sole and separate use, 
 for life, and after her decease, for her chil- 
 dren, &c. It was held, that the words of 
 the appointment were sufficient to vest the 
 shares absolutely in the daughters ; that the 
 attempt to restrict their interests by limita- 
 tions to their issue, being inoperative, did not 
 cut down the absolute appointment ; but that 
 it was competent to the donee of the power, 
 to limit the interests which she appointed to 
 her daughters, to their separate use, &c. 
 This authority was followed by Lord Lang- 
 dale, in Kempf. v. Jones, (2 Keene, 756.) 
 "The testatrix," says he, "has made limita- 
 tions, which to a certain extent, were quite 
 within her power but she has attempted to 
 make others which were beyond the limits of 
 her power ; and I think that the absolute 
 gift ought to have effect, subject to the lim- 
 itations which were within the power, and 
 free from the others." It seems very dif- 
 ficult to distinguish the appointment in favor 
 of Rosamond Miles Pringle, from the cases 
 thus adjudicated. 
 
 The gift to Mrs. Ravenel, in the first part 
 of the clause, is not in the same unqualified 
 terms, but the difference is rather verbal 
 than substantial. As has been stated, the 
 evident purpose of the testatrix, in this 
 clause, was to exercise her power of ap- 
 pointment, by making an equal division of 
 
 *352 
 that estate among *her children, and by plac- 
 ing the fortunes given to her daughters, (in 
 the language of the will,) under the same re- 
 strictions and limitations. The gift to Rosa- 
 mond was absolute, and no condition was an- 
 nexed, but in the event of her marriage. 
 Mrs. Ravenel was already married. Giving 
 to her daughter Eliza one-fourth of the es- 
 tate, she was solicitous "to provide against 
 the casualties of commerce.," and, in that 
 view, declared that the estate should be held 
 to her sole and separate use, during the cov- 
 erture, and, in the event of her decease in 
 the lifetime of her husbaiid, leaving issue, to 
 the use of the issue then living. If she sur- 
 vived her husband, whether with or without 
 issue, then to her daughter, discharged of all 
 further trusts. So far as the purpose of the 
 testatrix is to be accomplished, by securing 
 the fortune of her daughter to her sole and 
 separate use, this object is fully attained. 
 The deed of 1807 authorized her to prescribe 
 "the manner and form" in which the estates 
 given to her children should be enjoyed. 
 But she had no power, under that instru- 
 ment, to limit the succession, either for the 
 purpose declared by the will, or for any other 
 purpose. She was vested with unlimited au- 
 thority to apportion the estate, as she might 
 think proper, among the children ; to give all 
 
 144 
 
 to one absolutely, and leave all the others 
 unprovided for, or to give such estate or es- 
 tates to each, as to her might seem expedient. 
 She might make a partial appointment, or 
 might omit entirely to exercise the power 
 of appointment. The only limit to her dis- 
 cretion was the circle of objects within which 
 it was to be exercised. She could not look 
 beyond her own children. So the settlement 
 declared, and beyond this, the law would not 
 have permitted the parties to the settlement 
 to have provided, had they been so disposed. 
 Mrs. Pringle's power of appointment did not 
 extend to grandchildren, and her purpose, 
 in making this limitation, is necessarily frus- 
 trated. But, as the estate given to her 
 daughter, was thus restricted or qualified, 
 only for this purpose, and this has failed, the 
 general intention of the testatrix will be best 
 effectuated by holding, as in Arnold v. Con- 
 greve, that the estate of the daughter is not 
 
 *353 
 impaired by this inoperative limita*tion. 
 Whittell V. Dudiu, (2 Jac. & Walk. 270,) was 
 not decided on the principle of the cases al- 
 ready cited, but is illustrative of what re- 
 mains to be said. In that case, the testator 
 directed the residue of his property to be 
 equally divided between his wife, and sons 
 and daughters, subject, as to the shares of 
 the daughters, to certain trusts, for the ben- 
 efit of themselves and their children. The 
 Master of the Rolls held, that a daughter, 
 dying without a child, was entitled absolutely 
 under the original bequest, from which it 
 was to be collected that the testator's de- 
 sign was to make an equal division among 
 his children, which would be frustrated, if 
 the shares of the daughters were to go to 
 the testator's next of kin, as undisposed of 
 property, on their dying without children. 
 So in Holme v. Holme, (9 Sim. 644,) the tes- 
 tator directed the trustees, on the death of 
 his wife, "to divide and assign the trust 
 moneys" into as many shares as there were 
 children of that wife ; the shares of the sons 
 to be paid to them when the youngest child 
 attained t\^•enty-one years of age, and the 
 shares of the daughters, who should be alive 
 at that time, he directed should remain in 
 the hands of the trustees, upon trust to pay 
 the interests to the daughters, during their 
 natural lives, for their sole and separate 
 vise, and, upon the death of a daughter, leav- 
 ing issue, to such issue, &c., &c. The vice- 
 Chancellor declined to hear Mr. Knight 
 Bruce, and declared the gift to the daughter 
 to he absolute, notwithstanding the super- 
 added directions to settle the shares of the 
 daughters ; and that a daughter, who died 
 without leaving children, took an absolute 
 estate. In a note to that case, Mayer v. 
 Townsend, (3 Bea. 443,) is referred to. Tes- 
 tator had directed trustees to raise £5000 
 for his daughter Elizabeth; and when rais- 
 ed, to invest the same, and pay the dividends 
 to his daughter, for her separate use, during
 
 PRINGLE V. RAVENEL 
 
 *r>oG 
 
 life, and. after the decease of his dausliter. ( 
 tliere was a liiiiitatinn to li»^r childri'ii. Lord 
 Lanf:(ial«' lu'ld, tliat tln' limitation not liaving 
 taken effect, in constM|iii'iico of the ilcath of 
 the daii;,'hter without children, tlu' ahsolute [ 
 interest remained in tlu' daii^'hter. When 
 Mrs. rrinyle uses the expressions "to tlie use 
 of my daufihter Kllza, suliject to tlie trusts 
 
 ♦354 
 hereinafter ♦mentioned," and tiu-n. "the es- 
 tate, so be<iueatlied to my said danj;l»ter, 
 shall not vest in her, hut in my sons, as lier 
 trustees," no more is implied than liy the 
 lan.L.'uai.'e used in Holme v. Holme, and in 
 Mayer v. Townsend. The ^'ift is to her 
 daufihter. The provision is for her. More 
 than once it is referred t(» as "her tlan^hter 
 Eliza's estate." "her dau-hter l^liza's for- 
 tune." The absolute character of the irift to 
 her wa.s only to lie qualiticd for tlu' purposes 
 and with the limitations mentioned. I'art of 
 these attach eflectnaily to the jrift. The oth- 
 er is inoperative. From whatever cause is 
 immaterial. "The jxeneral rule." says Vice- 
 Chancellor Wi«ram, "is, that an absidute in- 
 terest is not to be taken away by a nift over, , 
 unle.ss that jrift over may itself take effect." ! 
 Green v. Harvey, (1 Hare, 4l's.i 
 
 Then, what is the result V The Court has! 
 as.sumed, as clearly deducible from tlie lau- j 
 guajre of the clause, that the desijrn of Mrs. 
 Prinjile was to make an eiiual division amont? 
 her children, of the estates therein describ- ! 
 ed. It .seems, too, scarcely open for ((uestion 
 uiK)n principle or authority, that the limita- 
 tion to the children of Mrs. Kavenel. was an 
 excessive aiipointment. and is. conse(piently. 
 void. Then upon any other construction than 
 that adopted i)y the Court, the fortime of 
 ^Irs. Kavenel, on the contin^'ency contemplat- 
 ed, would jiass. not to her own children, but 
 by the expre.^^s terms of the marriajre settle- 
 ment, to the children of Mr. and Mrs. Prinjrle, 
 to be equally divided between them, if the 
 provision be reiiarded as a limited (U- defec- 
 tive appointment. But, whether the estate 
 vested in the .several chiMren, as they came 
 in esse, or in those who survived the iiarents, 
 or in the heirs at law of the grantors, as in 
 a case not contemplated, or provided for in 
 the settlement, is uinmportant for the pur- 
 poses of this iiKjuiry. The result would be 
 the same. The design of the testatrix to es- 
 tablish eipiality among her children woidd be 
 entirely broken up and defeated; and an in- 
 effectual attempt to secure the tortuue of the 
 daughter "from the casualties of conunerce," 
 would lieconie the means of disiidieriting her 
 offspring. On the other hand, tlie leading 
 purposes of the testatrix will be accompllsti- 
 ed by establishing the gift in the daugh- 
 
 ♦355 
 *ter, as in Kempf v. .lones. subject to the 
 limitations which were within the iniwer, 
 cud free from the others. 
 
 Then uoes this pre.sent a case of election? 
 The text writers all agree that, iu regard to 
 3 Ricu.lCci.— 10 
 
 the doctrine of election, it is inunaterial 
 whether the testator, in disi»osing of that 
 which was not lil.s own, was aware of the 
 want of title, or proceeded upon the errone- 
 ous supposition that he was exercising a pow- 
 er of dispo.viition which behmged to him; in 
 either case, whoever claims in opp(islti<»u to 
 the will nnist relin<|uish what the will gives 
 liim. (1 .larman, ;{S7.) The whole language 
 and spirit of Mrs. I'ringle's will provt' that 
 she, her.xelf, entertained no mis>;ivings as to 
 her absolute right of dispcjsition. and tiiat 
 she intended to exercise it. In this respect 
 tlie case differs from Church v. Kemble. (.j 
 Sim. oL'u.) There the testatrix was author- 
 ized. !)y the fathers will, to ai)p<»int to such 
 (hildren. grandcliildreii. or more remote is- 
 sue, as were born before tlie apiiointment. 
 Hy her will she be<iueatlied her own estate, 
 and that which she had the power t<» dispose 
 of under her father's will, to be ei|Ujilly di- 
 vided among her four children, the shares of 
 her three daughters to their sole and separate 
 use; a codicil, premising in ca.<e she had tlie 
 liower so to do, under the will of her late 
 father, or otherwi.se, directed the interest, 
 under her will, of her daughter. Mrs. Church 
 to be vested in trustees, for her tmU- usi\ dur- 
 ing life, and, after her death, to divide the 
 jirincipal among her children. It was con- 
 ceded that the appointment, includiiiic all the 
 children of Mrs. Church that might be there- 
 after born," exceeded the power, and was con- 
 seciueiitly void. On the (luestion (»f election, 
 Sir Edward Sugden. for Mrs. Church, insi.st- 
 ed that the codicil applied only to the projier- 
 ty which was the subject of the power: and 
 the testatrix says she did not mean to make 
 the gift, unless she had the power to make it 
 under her father's will, or otlurwis ■. Slu' 
 had no such power. A ca.se of election never 
 ari.ses. unles.s a party does an a.t wliiili he 
 believes he has power to do. The \ice Chan- 
 cellor said, "the que-stioii is whether the tes- 
 tatrix meant the disposition to take effect 
 in all events, or only in the event of her 
 having the power to make it. If the testa- 
 *356 
 
 trix had ♦an ab.solute, unconditional intention 
 to give what she could not. then a ca.^e of 
 election would arise." Holding that the dis- 
 position was conditional, that she only in- 
 tended to give, provided she had the power 
 under her father's will, the Vi<e Chancellor 
 decided that it was not a case of election. 
 Mrs. I'ringle expresses no such doubt, im- 
 plies no such condition, but, believing that 
 she had the powi-r, manifests an absolute. 
 une<|uivocal intention to give the jtroperty in 
 the manner indiiated. As was said by Sir 
 Pepper Arden, in Whistler v. Webster. r2 Ves. 
 jr. .'tTO.) it is not iK-rmitted to the Court to 
 speculate as to what she would have done if 
 she had known one thing or another. "No 
 man." .says he, "shall claim any benefit un- 
 der a will, without conforming, as far as he 
 
 143
 
 *356 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 is able, and giving effect to everj' thing con- 
 tained in it, wliereby any disposition is made, 
 shewing an intention that such a thing shall 
 take place, without reference to the circum- 
 stance whether the testator had any knowl- 
 edge of the extent of his power or not." 
 Again, "Whether the testator thought he 
 had the right, or knowing the extent of his 
 authority, intended, by an arbitrary exertion 
 of power, to exceed it, no person, taking un- 
 der the will, shall disappoint it." 
 
 The Court is of opinion that Mrs. Ravenel 
 is bound to elect; but she cannot be required 
 to make her election, "until all the circum- 
 stances are known, and the state and condi- 
 tion and value of the funds are clearly as- 
 certained." (2 Story Eq. § 10,98.) 
 
 The remaining question, on v^'hich the com- 
 plainants ask the decision of the Court, re- 
 lates to the bond of the testatrix for four 
 thousand four hundred and twenty-five dol- 
 lars and forty-one cents. The bill alleges 
 that this bond was executed to William Ra- 
 venel, and by him afterwards assigned to the 
 trustees of his marriage settlement. The 
 last disposing clause of Mrs. Pringle's will 
 declares as follows: "And it is farther my 
 will that the several gifts and devises here- 
 in contained, shall be taken, deemed and ac- 
 cepted by my several devisees and legatees, 
 as full satisfaction of and for any claim or 
 demand, whatsoever, which such legatees or 
 devisees may have on me or my estate, or the 
 estate of my deceased husband." This is 
 
 *357 
 
 the law of the case, *and is binding equally 
 upon femes coverts and infants, as upon all 
 other persons claiming under the will: "The 
 doctrine of election extends to all interests, 
 whether they are immediate or remote, vested 
 or contingent, of value or of no value." (2 
 Story Eq. § 1096.) The legatees of Mrs. 
 Pringle, insisting on their rights under the 
 will, can take them only upon the terms pre- 
 scribed, namely, in full satisfaction of their 
 respective interests, whatever they may be, 
 in the bond executed by testatrix. It is or- 
 dered and decreed, that it be referred to one 
 of the Masters of this Court, to take an ac- 
 count of the estate of Mrs. Pringle, and of 
 the debts due and owing by her and by the 
 late James R. Pringle, and out of what fund 
 the same ought to be paid, with leave to state 
 any special matter, and with leave to either 
 party, upon the coming in of the Master's re- 
 port, to apply for further directions. 
 
 W. Ravenel and wife appealed, on the 
 following grounds: 
 
 1. That his Honor, it is respectfully sub- 
 mitted, has erred in supposing that the bond 
 mentioned in the decree, was the bond of the 
 testatrix, when, in fact, it was the bond of 
 James R. Pringle, substituted trustee of the 
 marriage settlement of the late James R. 
 Pringle, deceased, and family. 
 
 2. That his Honor, it is respectfully sub- 
 
 146 
 
 mitted, has erred in decreeing that Mrs. Prin- 
 gle's will presents any case of election, so 
 far as Mrs. Ravenel is concerned. 
 
 That the decree is, in these and other re- 
 spects, contrary to equity. 
 
 Yeadon, for defendants. 
 Petigru, contra. 
 
 DUNKIN, Ch., delivered the opinion of the 
 Court. 
 
 It is true that the bond adduced, is not the 
 bond of Mrs. Pringle, but of the trustee. Yet 
 the bill sets forth expressly, that by what is 
 called the consent decree of May 1841, Mrs. 
 Pringle became the purchaser of her hus- 
 band's estate, and undertook, among other 
 things, to pay his four children $17,701.64, 
 as the amount of their shares, and that she 
 
 *358 
 executed a bond to William *Ravenel for his 
 wife's share, ($4,425.41,) which was after- 
 wards assigned by liim to J. R. Pringle, as 
 trustee of his marriage settlement. The 
 answer made no issue on this allegation. On 
 reference to the Master's report, which con- 
 stituted the basis of the decree of May, 1841, 
 in schedule No. 3, (c) Mrs. Pringle is made 
 the purchaser of certain property, and 
 charged with the payment of $17,701.66, 
 as the balance due to the children. Among 
 the property, of which Mrs. Pringle is thus 
 set down as the purchaser, is the Cannons- 
 borough House, valued at $24,000, and the 
 plantations on Santee, valued at $42,000. 
 In her will, Mrs. Pringle devises the first, 
 as "my house in Cannonsborough, where I 
 reside," and the second she devises to her 
 four children, as "my plantation and all 
 my lands on Santee River, in the parishes 
 of Prince George, Winyaw, and St. James, 
 Santee ;" and she afterwards provides, that 
 these, and the other beneficial interests un- 
 der her will, shall be taken, by her several 
 devisees, in full satisfaction of any demand 
 on herself, or her estate, or the estate of her 
 deceased husband. 
 
 (c) Schedule No. 3, accompanying the Master's re- 
 port, is as follows: 
 
 Schedule No. 3. 
 
 Adjustment with Mrs. Pringle. 
 
 Dr. 
 
 To Santee Plan- 
 tation $42,000 00 
 
 To Cannonsbo- 
 ro' House 24,000 00 
 
 To 42 Negroes, 
 $400 17,200 00 
 
 Cr. 
 
 By property due 
 
 her, as by 
 
 Schedule No. 1 $;36,000 11 
 By one third of 
 
 Mr. Pringle's 
 
 e s t a t «, by 
 
 Schedule No. 2 13,429 Sf; 
 By debts of es- 
 tate, assumed 
 
 by Mrs. P 16,968 41 
 
 $65,498 34 
 Balance .... 17,701 66 
 
 ?83,200 00 
 
 $83,200 00 
 
 To balance due by Mrs. Pringle to estate 
 of Mr. P $17,701 66
 
 PRIXGLE V RAVKNEL 
 
 •;i60 
 
 It is nevertheless true. that, allhouuh the 
 Master recoiiiiiifmU'd tlie adjiistiin'iit st't 
 forth in schediUe No. ;{, and this n'comiuenda- 
 tion was approvt-d and confirnie<l ljy the 
 Court, in the decree of May. 1S41. yet the 
 same decree recomnit-nds, tliat tlie Master 
 eonvey this same proi)erty to .Tamos U. I'rin- 
 gle, who had been suhslituted for the orijjinal 
 
 *359 
 trustee to tlie niarriajje st'ttlcmt'iit of *ls(»7, 
 and it further directs, that the tnistoe siiail 
 l)ay out of the trust estate tlii' ."<lT,7(H.(J(i, due 
 to the children of James K. rriiijrle, deceased. 
 Accordiuf;ly, instead of a bond from Mrs. 
 I'riuf^le, to William Ravenel, as set forth in 
 the bill, a bond was e.xecuted liy James II. 
 Priufile, trustee under the nnirria^'e settle- 
 ment of Mrs. I'rinjile. to himself as trustee to 
 the marriajio settlement of William Ravenel 
 and wife, for ."};-t,4L'r).41. in obedience (as is 
 recited) to the decree of May, 1S41. It need 
 hardly be said, that tliis decree, as well as 
 every thinj; done under it, is tlie act of tlie 
 
 had a claim of four thousand four hundred 
 dollars on the estate whitli she had puicha.s- 
 ed. The trust estate was autrnieiited by the 
 transfer of this i»roperty. and the trustee 
 <liarj;ed with the iiayment of that debt. Mrs. 
 rrin^le's will, substantially, declart-s tiiat the 
 share devised to each shall be received di.s- 
 char;.'ed of the incumbrances held by them 
 mutually. This is no more than a leiritimate 
 exercise of the discretion vestecl in her under 
 the power of appointnuMit. 
 
 The only qui'stion presi-nted by the i^mvinds 
 of a|)peal, or argued by the counsel, was in 
 relation to the Inind of I'it May, 1S41. This 
 b(»nd is the creature of the decree of the 
 .sanu' date. Mrs. I'ringle may well have re- 
 garded this as a claim on her "e-state" as 
 she so treats the property from which this 
 bond was to be pai<i. Rut the intention cun- 
 not bi' mistaken. Regarding the bond, how- 
 ever, as that of the trustee, and the iirojierty 
 devised as part of the trust estate, a case of 
 ♦360 
 
 parties themselves. Hut it is evident, that , satisfaction, and not *of election, is i>reseiit- 
 
 the proiH'ity purchased by ..^rs. I'ringle. and 
 for which this sum of .l^lT.TOl.tUi. was in part 
 the consideration, became, by the <leclaration 
 of the decree, part of the trust estate under 
 the marriage settlement, and her trustee was 
 directed to pay the amount out of the trust 
 estate, and so it is admitted, or rather stat- 
 ed, in the defendants answer. In her will, 
 Mrs. Pringle seems not to have distinguished 
 very precisely between her own estate, and 
 the estate held under the marriage settle- 
 ment. But, by the terms of the settlement, 
 she was authorized to dispose of the estate 
 among her children in such proportions as 
 she thought lit. Each of the four children 
 
 ed. In devising tlie property, which by the 
 decree was made part of the trust estate, the 
 testatrix declares that it shall be taken by 
 the several devisees, discharged of the re- 
 spective liens created by that decree. This 
 ojjerates a sjitisfaction of the bond. It is an 
 appointment to each of so much of the estate 
 less the incumbrance. Such is the manifest 
 olgect of the testatrix, and so much she was 
 fully competent to do under the settlement 
 of 1S07. 
 
 The decree of the circuit Court is allirnied. 
 
 1>AK(;a.\ and WAK1»1.AW, CC, concurred. 
 Decree atlirmed. 
 
 147
 
 CASES IX EQUITY" 
 
 ABOUED AND UKTKKMINEI) I.N THE 
 
 COURT OF APPEALS 
 
 AT COLUiMBIA, SOUTH CAROLINA— MAY TERM, 1851 
 
 Cir.wcnrj.oRS PrKSEXT. 
 Hon. .top. .TOHNSTOX, 
 
 R. F. nrxKix, 
 " a. w. D arc; AX, 
 
 " F. II. WARDLAW. 
 
 3 Rich. Eq. *36l 
 
 •ADDITIOXAL KILKS OF COURT, 
 
 ADOPTED MAY Tr;RM, IS-jI. 
 
 1. X'o Master, or Coiiiniissioner, of this 
 Court, shall hereafter he :i])iioiiite(l Receiver. 
 
 2. The annual return of the Master, or 
 Commissioner, required hy the 15th clause 
 of the Act of 1840 shall be accompanied 
 by the following oath, viz: — "I, A. R. do 
 solemnly swear that the foregoing return 
 contains a full account of every estate, and 
 al.so of all moneys, bonds, notes, certificates of 
 stock, or other evidences of choses in action, 
 which are in my hands, jtossession. or man- 
 agement, by virtue of my othc(\ or of any 
 order or decree of the Court; and that the 
 said return contains a full account of all 
 moneys, received, or paid out. by me. relat- 
 ing to the said estates. — So help me God." 
 \Miich affidavit shall form part of the said 
 rt^turn. and precede the said Master's, or 
 Commissioner's, signature tbt>n>to. 
 
 .7. Johnston. 
 Ren.t. F. Dun kin, 
 Geo. W. Darc.an. 
 f. ii. w.vudlaw. 
 May 19, 1851. 
 
 3 Rich. tq. *362 
 
 *geor(;e rrowx v. thk chester- 
 ville academy society 
 
 and Others. 
 
 (Columbia. May Term, ISol.) 
 
 [i'^chnolft and School Di-iiricts <©=>.5.1 
 
 The 10th section of an Act of the 18th 
 Deeembor. 1818. incorporatod tlip C. A. Society 
 for "Jl yiMps. and the lltii section veste 1 in the 
 
 corporation escheated property to a certain ex- 
 tout: a clause in an Act of i84(> enacts, "that 
 the Act passed on the 18th December, 1818. 
 incorporating the C. A. Society, be revived and 
 continue in-foroe for the i)erio(l of 14 vears:" — 
 JJcld. that by the Act of 1840. i)()th "the 10th 
 and 11th sections of th^ Act of 1S18 were re- 
 vived. 
 
 fEd. Xote. — For other cases, see Schools and 
 School Districts, Cent. Dig. § 6; Dec. Dig. 
 <©=>5.] 
 
 [Corporations <g=337 ; Encheat (@=>7.] 
 
 An Act of the Legislature vested in a cor- 
 poration "all such property as hath heretofore, 
 or may hereaftor accrue to the State." in Ches- 
 ter district, which by the Act to regulate es- 
 clieats "hath esclieatod to the State:" — UcUl, 
 that tiie corporation were entitled to property 
 which escheated after the passing of the Act. 
 
 I Ed. Xote. — For other cases, see Corporations, 
 Cent. Dig. § 105; Dec. Dig. (©=>:{7 ; Escheat, 
 Cent. Dig. § 19; Dec. Dig. ©=7.] 
 
 Refore Dargan, Ch., at Chester, June 1850. 
 
 This case will be understood from the cir- 
 tuit decree, which is as follows. 
 
 Dargan. Ch. James M. Egger was a per- 
 .son of illegitiniate birth. He was possessed 
 of a jier.sonal estate. He died in 1842, in- 
 testate. There being no person who could 
 claim as his next of kin. his estate escheated 
 or reverted. The administration of the In- 
 testate's estate has been granted to \Yilliam 
 Kirki)atrick, who is a defendant. There 
 are two parties claiming this estate as es- 
 cheated property, by virttie of grants from 
 the State, namely — th(> Cliesterville Academy 
 Society and the complainant. The Chester- 
 ville Acaclemy Society was incorporated in 
 1818, (8 Stat. 20G-7). And the same Act by 
 which the Society was incorporated, pro- 
 
 ©=3For other cases see sanit topic and KEY-NUMBER ia all Key-Numbered Digests and Indexes 
 
 149
 
 362 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 vides, "that all siich property as hath here- j 
 tofore, or may hereafter accrue to the State 
 in said district of Chester, ou account of 
 property which hy an Act entitled "An Act 
 to appoint Escheators and regulate es- 
 cheats," hath escheated to the State, — pro- 
 vided, the same do not amount to more than 
 three thousand dollars, shall be, and the 
 same is hereby vested in the said corpo- 
 ration, for the use of the Chesterville 
 Academy, and the said corporation is here- 
 by vested with all the powers necessary 
 for receiving said property, and for dis- 
 
 *363 
 *posing of the same for the benefit of the 
 said Academy: Provided, nevertheless, that 
 such escheats shall not affect any citi- 
 zen or friendly alien, but that in all cases 
 such citizen or friendly alien, shall have 
 liberty to plead the statute of limitations 
 in all proceedings under the existing laws 
 regulating escheats, in like manner as the 
 said statute may now be pleaded in actions 
 between citizens of this State." The char- 
 ter was to continue of force for twenty-one 
 years. It therefore expired in December, 
 1839. In 1846, in the general corporation Act 
 of that session, it was enacted "that the Act 
 passed on the ISth day of December, 1818, 
 incorporating the Chesterville Academy So- 
 ciety, be revived and continue in force for 
 the period of fourteen years." (11 Stat. 
 397). By an Act of 1847, (11 Stat. 438) all 
 the right, title and interest of the State, in 
 and to the estate of James M. Egger, late of 
 Chester district, in the hands of William 
 Kirkpatrick, administrator of the said Eg- 
 ger, was declared to be vested in George 
 Brown, and his heirs forever. From tliese 
 various Legislative Acts, arise the conflict- 
 ing claims of these parties. 
 
 In some of the Acts granting escheated 
 property to educational institutions, the 
 State has reserved a power of otherwise 
 disposing of tlie prctperty, in case any strong 
 equitable claim should be presented. And 
 it has been argued that such must be the 
 construction of the grant in this case, under 
 the proviso, "that such escheats shall not 
 affect any citizen or friendly alien." I am 
 of a d>fferent opinion — I think that the pro- 
 viso was to enable citizens and friendl.v 
 aliens to plead the statute of limitations. It 
 was intended to obviate the maxim, "nul- 
 lum tempus occurrit regi."' It evidentl.v 
 means this and nothing more. This maxim 
 liad been incorporated in the Act to regulate 
 escheats, except as to lands claimed under 
 grants or actual possession for five years 
 prior to the 4th of .July, 1776. (7 Sect. Act. 
 1787, .5 Stat. 48). 
 
 It will scarcely be doubted tliat on the ex- 
 piration of the first charter of tlie Chesterville 
 Academy Society, in 1839, all its rights un- 
 der the grants of escheated property ceased. 
 And it is equally clear, that if the Society 
 has any rights of that kind, it must be under 
 
 150 
 
 the revival of the charter in 1846. That 
 
 *364 
 
 Act *simply revived the old charter for 14 
 years. It is silent as to any grant of es- 
 cheated property. 
 
 We will recur to the charter of 1818. The 
 Act incorporating the Society is found in the 
 general incorporation Act of that year. The 
 10th section of that Act (8 Stat. 296) enacts, 
 "that the members of the Chesterville 
 Academy Society, and those persons who 
 may hereafter become members thereof, be 
 and the same are hereby declared a body 
 politic and corporate, in deed and in law. by 
 the name and style of the Chesterville Acad- 
 emy Society." That is the Act of incorpo- 
 ration. What follows in the 11th section is 
 a grant to the cori^oration thus created, of 
 escheated estates in Chester district, under 
 certain conditions, but is no part of the Act 
 of incorporation. The Societ.v was a per- 
 fect corporation without it. Then follows 
 the Act of 1846, which enacts "that the Act 
 passed on the 18th da.v of December. 1818, 
 incorporating the Chesterville Academy So- 
 ciet.v, be revived and continue of force for 
 the period of fourteen years." What is here 
 revived? In the .iudgment of this Court, it 
 is that part of tlie general incoriioration 
 Act of 1818, incorporating the Society, and 
 not that part of it which grants escheated 
 property. 
 
 There is another view of the case whicli 
 strikes me with considerable force. The 
 language of the 11th section is peculiar. 
 What is the extent of the grant? It is, "all 
 such property as hath heretofore, or may 
 hereafter accrue to the State in said district 
 of Chester," which, by the escheat laws, 
 "hath escheated to the State, provided," &c. 
 It gives the property "which hath heretofore 
 or may hereafter accrue." but not that which 
 hath or may hereafter esclieat. When the 
 Act speaks of property accruing, the provi- 
 sion is both prospective and retrospective. 
 When it speaks of property escheating, it 
 seems onl.v to grant that which hath esclieat- 
 ed. The clause might read thus: — All the 
 property that has or may accrue to the State 
 on account of property which has escheated, 
 is vested. &c. Whence these studied distinc- 
 tions of language? It may be that the Leg- 
 islature intended to limit the grant to prop- 
 ert.v which had already escheated, and to- 
 which tlie State had an inchoate right ; but 
 
 *365 
 
 *which wcmld not accrue to the State, or 
 bec-ome perfect and vested until after of- 
 fice found. The language is so different 
 from that employed in other grants of es- 
 cheated property for similar purposes, that 
 I am inclined to think there is a meaning in 
 the apparently studied ft)rm of language, in 
 which the grant is expressed. In all the 
 other Acts of this kind, which I have ex- 
 a:*ined, the language is simple, and the
 
 BROWN V. CHESTEKVILLE ACADEMY SOCIETY 
 
 *367 
 
 property tliat li.is escheated or may escheat 
 is firaiited. 
 
 It is ordered and decreed, that the defend- 
 ant, Kirkpatrick, account for. and pay over 
 to the complainant, the estate of the said 
 James M. E;.'f:er. It is also ordered and de- 
 creed, that the costs be paid out of tlie finals 
 4)f the ("State of the said intestate. 
 
 The Chesterville Academy Society ainteal- 
 t'd. on the fcdlowinfj srounds. 
 
 1. Because the Act of lS4t), revivin.u the 
 Act of ISIS, incorporatiui: said society, re- 
 vived tlie whole of the latter Act, and not a 
 part thereof; and the decree decidiujr that 
 it was only revived in part, is erroneous, 
 and oupht to he reversed. 
 
 2. Be<"Uise it was manifi-stly the intention 
 rif the Act of ISIS, that said society should 
 receive all property which had escheated, 
 and all pro]»erty which mi>;ht escheat after 
 the passinjr of said Act, mitil said society had 
 lealized the svnn of three thousand dollars; 
 and the decree of the Chancellor is, therefore, 
 erroneous in deciding that it was property 
 only which had escheated anterior to the 
 passing of saitl Act that vested in said So- 
 i'iety. 
 
 (Jre^TL,' & McAlilly, for api)ellants. 
 Williams, contra. 
 
 .lOIlNSTUX, Ch., delivered the opinion of 
 tlie Coui-t. 
 
 The lOtli section of the general corporation 
 Act of ISIS, (S Stat. 21)i;-7.1 incori)orates the 
 Chesterville Academy Society for twenty-one 
 years ; and the 11th vests in them escheated 
 property to the extent of .S:'>,tMH). 
 
 A clause in the general coriM)ration Act of 
 ="366 
 1S4G, (11 Stat. :W7,) enacts *"that the Act, 
 passed on tlie ISth day of December. ISIS, in- 
 corporating the Chesterville Academy Soci- 
 ety, be revived, and continue of force for the 
 period of fourteen years." 
 
 It has been contended, that without a re- 
 vival of not only the 10th but the 11th sec- 
 tions, the right granted to the Society in the 
 escheated property, was lost to theui. 
 
 1 do not mean to as.sert that this position 
 is erroneous, — because the itoint has not been 
 arguetl. But, in my opinion, it is far from 
 «lear. By the ex])iration of their cori>orate 
 exi.stence, — by the ettlux of their charter, the 
 •society certainly lost their corporate capac- 
 ity; and so were disabled as a corporation 
 from enforcing a remedy against persons 
 who might interfere with tlieir property or 
 rights. But is it true, that upon the cessa- 
 tion of their charter, all the property and 
 riglits of a cori)oration became lost to them? 
 May it not be that they are rather susiiend- 
 ed, for want of caiiacity to assert them: and 
 that they are re-instated by the mere revival 
 of the corporation? Does not rlie revivor 
 prevent a breach of continuity in the char- 
 ter. 
 
 But the investigatiou of this point is uii- 
 
 necessarj', because, in my opinion, the reviv- 
 ing statute applies not only to the lOtli but 
 to the 11th clause of the Act of ISls. 
 
 If the words of the statute of lS4<i are to 
 lie applied according to their literal mean- 
 ing, neither the 10th nor the lltli clause is 
 revived. That statute professes to revive an 
 Act of a particular date by the title of an 
 Act incorporating the Chesterville Academy 
 Society. But no such Act exists, or ever 
 existed. The only Act of that date, relating 
 to cori)orations is an Act for incori>orating 
 sundry societies. Of these the Chesterville 
 Academy Society is one. We nuist therefore 
 apply the words of the reviving statute to 
 that Act. But we liave no more right to 
 restrict the jdiraseology of the reviving Act 
 to the 10th clau.se of it than to apply it to 
 every clause in it. Indeed, a literal con- 
 struction would compel us to say that the 
 whole Act was revived ; and every societ.v 
 mentioned in it re-incori)orated. 
 
 This, however, was clearly not tiie iiiren- 
 tion of the Legislature, and we are therefore 
 
 *367 
 
 forbidden to adopt a literal construc*tion. 
 The Act, of lS4f), was manifestly intended to 
 apply to only so much of that of Isis as re- 
 latetl to the Cliesterville Academy Society. 
 But having arrived at this conclusion only 
 by means of a free construction ; are we war- 
 ranted in re-adopting a narrow construction, 
 for the purpose of limiting the revivor to the 
 clause by which the society was given a cor- 
 porate character, leaving out another clause 
 by which further i»rivileges were conferred 
 ujiou it? I think not. Both the clau.ses in 
 ipiestion are to be considered as clauses re- 
 lating to the incorporation of the society; 
 and are both revived. 
 
 Upon the other view suggested in the de- 
 cree, I am ecpially clear. The words relating 
 to vesting escheated proiHM-ty are clearly not 
 employed with a studied reference to gram- 
 matical rules. "Ilath escheated" has not 
 reference to time precetling the enactment, 
 but is used loosely in reference to the accru- 
 al of the right, intended to be vested in tlie 
 corporation. 
 
 It is ordered that an account he taken of 
 the value of escheated proiH*rty already re- 
 ceived by the Chesterville Academy Society ; 
 and. if found to be less than they were enti- 
 tled to receive under their charter, that John 
 L. Harris, adnunistrator de bonis non ol 
 James M. logger, and Reubin Cassels, admin- 
 istrator of William Kirkpatrick. former ad- 
 ministrator of said I'vgger, do account for the 
 assets of said logger's estate, and, according 
 to the amount thereof chargeable to them, re- 
 .spectivel.v, in a due course of adnunistra- 
 tion, apply said as.sets towards making up 
 tlie amount of escheated property to which 
 said Six'iety (taking into computation what 
 it may have already received) is by its char- 
 ter entitled. 
 
 151
 
 *367 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 The costs to be paid as directed l)y the [ 
 Chancellor's decree now under review. 
 
 DUNKIN, DARGAN and WARULAW, CC, 
 concurred. 
 
 Decree modified. 
 
 3 Rich. Eq. *368 
 *C. H. COLDIN(J V. J. N. BADGER and 
 
 Others. 
 (Cohmibia. ^lay Term, 1851.) 
 
 [Appeal and Error <g=>9ti2.] 
 
 An order dismissing a bill for want of pms- 
 ecution comes properly within the discretion of 
 the circuit Chancellor ; and the Court of Ap- 
 peals will not interfere with his decision, un- 
 less it be grossly erroneous. 
 
 [Ed. Note. — For other cases, see Appeal and 
 Error, Cent. Dig. i; :J83S ; Dec. Dig. (©=3U«2.] 
 
 [Egnity <S=3407.] 
 
 A commissiouer cannot refuse to make a re- 
 port upon the ground that the evidence is either 
 too obscure, or insufficient: the plaintiff has 
 the right to require a report either for or 
 against him ; — to whieh. if against him, he may 
 file exceptions. 
 
 [P]d. Note. — For other cases, see Equitv, Cent. 
 Dig. § 895; Dec. Dig. <g=»4U7.J 
 
 {Equity <®=>.362.] 
 
 Where a commissioner refused to make a re- 
 port, on the ground that the evidence was too 
 obscure, and there was laches, on the part of 
 plaintiff", in failing to take proper steps to com- 
 pel him to make one; Held, that the bill was 
 properly dismissed for want of prosecution. 
 
 [Ed. Note. — For other oases, see Equitv, Cent. 
 Dig. § 760; Dec. Dig. <S=>362.J 
 
 Before Dunkin, Ch., at Barnwell, Febru- 
 ary, 1851. 
 
 The original bill was filed on the KJth day 
 of March, 1812, and a supplemental bill was 
 filed on the 2!Jth of August, 1845. The object 
 of the bill was for an account of the estate 
 of John Badger, and involved a very consid- 
 erable mass of testimony in the way of re- 
 ceipts and expenditures. The defendants 
 closed their references in January, 1850. 
 The case stood on the docket as continued at 
 February Term, 1,S50, by the comidainant. 
 It was stated that this was done in conse- 
 quence of the absence of Mr. Patterson from 
 indisposition. At that term of the Court, 
 the complainant retained Mr. Owens, as as- 
 sistant counsel for the prosecution of his 
 case. Nothing further was done until the 
 14th of November, 1850, when Mr. J. T. Aid- 
 rich, defendant's solicitor, served the follow- 
 ing notice on Mr. Owens: — "The complainant 
 \n the above cause is liereby notified that 
 the defendants have long since closed their 
 references in this cause, and that, on the 
 first day of January next, a motion, on the 
 part of the defendants, will be made before 
 the commissioner, to nuike up his report ; 
 and if it shall turn out that the commission- 
 er is unable to make up a report, on account 
 of the obscurity of the materials furnished 
 him, then the complainant is further notified 
 
 that a motion will be made, at the sitting of 
 the Court, that the bill be dismissed for want 
 of prosecution." — About ten days before the 
 
 *369 
 Court met, the commissioner infonned *Mr. 
 Owens that he should be unable to make up 
 the report, for the want of materials, in the 
 way of explanation and further evidence. 
 Mr. Owens informed him that Mr. Patterson 
 said there was no farther evidence t.) offer, 
 and if the Connnissioner could not make up 
 the report, he (Mr. O.) could not help it. 
 
 The comnnssioner stated to the Court that 
 tliere were a great many vouchers, on the 
 part of the complainant, that required ex- 
 planation ; and that he had been unable, 
 from the obscurity of the evidence, to make 
 up a report. His Honor, the Chancellor, or- 
 dered the bill to be dismissed, for want of 
 prosecution. 
 
 From that order the complainant appealed, 
 and now submitted that the cause ought to 
 be restored to the docket, to be heard on 
 its merits. 
 
 1. Because, at various meetings held before 
 the connnissioner, the complainant furnished 
 all his evidence in relation to the matters of 
 account, and rested his cause, awaiting the 
 conmiissioner's report. 
 
 2. Because it was the duty of the comnns- 
 sioner to report on the evidence, in order that 
 the sufficiency of the evidence nnght be sub- 
 mitted to the judgment of the Court, on ex- 
 ceptions to the report. 
 
 Patterson, Owens, for motion. 
 J. T. Aldrich, contra. 
 
 JOHNSTON, Ch., delivered the opinion of 
 the Court. 
 
 The case presented by this appeal came 
 proi>erly within the discretion of the Chan- 
 cellor ; and we should not be authorized to 
 interfere with his decision unless it were 
 grossly erroneous. So far from being so; 
 we are all satisfied his discretion was very 
 properly exercised. 
 
 We do not intend to say, that it was within 
 the competency of the commissioner to with- 
 hold a report, upon the ground, that the evi- 
 dence was either too obscure, or insufiicient. 
 Such a position would constitute him tlie ex- 
 clusive judge of the evidence. The plaintiff 
 had a right to require a report either for or 
 against him ; and if a report of tlie latter 
 
 *370 
 claaracter were made, — he had *a right to 
 except to it, and to take the opinion of the 
 Court upon the effect of the evidence sub- 
 mitted. 
 
 But the plaintiff required no report, — took 
 no measure to obtain one, — either by rule or 
 otherwise. And when we consider the 
 length of time the case had been pending; 
 the time which had elapsed since the evidence 
 was closed ; and, especially, when we con- 
 sider, that after the explicit notice served 
 
 152 
 
 <S;=pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inde.xes
 
 INABINIT V. INABIN'TT 
 
 *3-3 
 
 on him in Novfuilter, he totally abstainml 
 from taking' any steps whatcvt-r ; we think 
 there was contlusive evidence of lathes on 
 his part, rirhly entitling the defendants to 
 their imition. Were they to he forever hung 
 ni> in Court".' and. how else were they to .se- 
 izure them.selves from internnnalde litigation 
 than hy moving for an order to dismiss tlie 
 bill for want of prosecution? 
 
 It is ordered that the order be ulhrmed, 
 and the appeal dismissed. 
 
 DUNK IX. Ch., concurred. 
 Appeal dismissed. 
 
 3 Rich. Eq. 370 
 INABINIT V. INAHINIT. 
 
 (Colunihia. May Term, IS.")!.) 
 
 iWiii/i <s=37:-.(>. 7n:'..l 
 
 Testator, having- a plantation, almiit thirty- 
 five negroes, furniture, i*^>". (leviscd mid lieiiucatli- 
 ed, by the 1st. clause of his will, to his wife, 
 for life, his plantation, furniture, iV:c. an(l four 
 negroes, with remainder to his children: in the 
 2d clause ho declared that, as he had a<lvanced 
 to his married daughter, E. M. two negroes, one 
 horse, &e. he desired "that as each one of my 
 children marries or becomes of age, they are to 
 receive out of my estate, two negroes, one boy 
 and one girl, bc-tween the age of ten and twenty 
 years, one horse," &c. "to make them ecjual 
 with my said daughter." E. M: and by the IJd 
 clause, he bequeathed the remainder of his ne- 
 groes, "not heretofore devised of," to all his 
 children, to be e(]ually divided among them. 
 Testator left nine children, all of wiiom were 
 minors — the youngest being six years of age — ex- 
 cept E. yi-.—Hcld, (1) that there could l)e no 
 division of the negroes bequeathed l)y the '.k\ 
 'jlause of the will, until the last cliild ai-rived 
 at age or married, and received his two negroes. 
 horse, &:c. under the lid clause; (li) that the an- 
 nual income of the negroes betjucathed by the 
 3d clause, after using so much (if any) as may 
 be necessary for jirocuring the articles given by 
 the 2d clause, could not be used for the main- 
 tenance of the nunor chihli-en, but siioidd be 
 distributed annually among all the children. 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. §§ 1TS8, 1825: Dec. Dig. <©=>7;>(), 7:i:>.] 
 
 *371 
 
 ♦Before Dunkin, Ch., at Orangebuigh, Feb- 
 ruary, 1851. 
 
 I)uidcin, Ch. James luabinit died on the 
 7tli March, 1840, leaving a will duly executed, 
 on the seventh day of January, previous. 
 The testator loft a widow, the complainant 
 in these proceedings, and who has also (puil- 
 ified as e.\ecutri.\ of his will. He left, also 
 a daughter, the wife of the defendant, Daniel 
 V. V. Fnnchess. and eight other children, all 
 of whom ai-e minors, the .voungest about six 
 years of age, (except the defendant, Mary 
 C. Inabiuit). 
 
 His estate consisted, principally, of the 
 plantation on which he reside<l, and some 
 thirty-five negroes. 
 
 The bill is tiled for the purpose of having 
 the trusts of tlu' will declared, so far as may 
 
 be necessary for the instruction of the com- 
 plainant in the discharge of her duty. 
 
 In ascertaining the intention of the testa- 
 tor, the Court is always at liberty to look in- 
 to the condition of his fannly, and of his 
 l)roperty. In this view, the general scheme 
 of the testator seems clear enough. 
 
 His widow was left with a large family of 
 young children. To her he devises. f«)r her 
 natural life, all his real estate, his houseludd 
 and kitchen furniture. &c. &c. and all things 
 pertaining to the plantation use; also, four 
 negroes, stub as she ndght select from all hi-; 
 negroes. 
 
 Th(» next provision in order of time, may- 
 be considered the betiuest to his children, as 
 they become of age or marry. Reciting that 
 he had given to his married daughter. Eliza 
 M. two negroes. Will and Hannah, one horse, 
 saddle and bridle, and one bed and furniture, 
 he directs that, as each of his other children 
 marries or arrives of age, he or .she shall 
 receive, out of his estate, precisely the same 
 advancement, so as to make them etpnil with 
 his daughter, Eliza ^l. Funchess. 
 
 The real and personal estate, including the 
 homestead and everything connected with it, 
 as specified in the fir.st clause, was given ti> 
 his wife for life, "to be kept by her in quiet 
 and peaceable possession, luidisturbed by any 
 
 *372 
 person ;" and, after *her death, was directeil 
 to be divided between his four sons; and his 
 five daughters were "to receive, in lieu oi 
 said real estate, one hundred and fifty dollars 
 each, as their portion of said real estate*' — 
 the remainder of the personal estate which 
 his wife might leave at her death, was to be 
 (•i|ualiy divided amoi.gst testator's heirs; 
 1 "but sliould any of them die without heirs, 
 their part is to be returned, and be eiiually 
 divided amongst my heirs." 
 
 The first question preseiired, relates to the 
 payment of this sum to the daughters, in lieu 
 and as their portion. His evident intention, 
 as manifested in various parts of the will, 
 was to establish etiuality among his children. 
 This sum is to be paid by the sons to the 
 daughters, when the life estate ternunates. 
 and they (the sons) come into the enjoyment 
 and pos.session of the real estate, as provided 
 by their father's will. 
 
 The third and la.st disposing clause is as 
 follows, viz: "The remainder of my negroes 
 not heretofore divided of in my will, is to be 
 etfually divided amongst my chiiaren" (nam- 
 ing themi: "but should any of my aforesaid 
 children die without m\ legal issue, their jiart 
 is to return back, and be eijiially divided 
 amongst my remaining heirs. I do give the 
 same to them and their heirs forever." 
 
 It slioultl be pri'ini.sed that this clause fol- 
 lows immediately that clause of the testator's 
 will, which directs that t,wo negroes, between 
 the age of ten and twenty years, should be 
 received by each of his children, as he or she 
 
 ^=»For other cases see same topic auU KKY- NU.MUEK iu all Key-Numbered Digests aud lnde.\es 
 
 15o
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 respectively attained tlie age of twenty-one 
 years, or day of marriage. Then follows this 
 provision: "The remainder of my negroes 
 not heretofore divided of in my will," .^c. &c. 
 
 The rational construction seems to the 
 Court to he, that the complainant, as execu- 
 trix, was to have charge of the negroes, giv- 
 ing to each child two, as they married or be- 
 came of age, and furnishing each, at that 
 time, with the other articles to which he or 
 she should at that period become entitled. 
 "I desire that as each one of my children 
 
 *373 
 marries, or becomes of age, they are to *re- 
 . ceive out of my estate two negroes," &c., 
 "one horse, saddle and bridle, and one bed 
 and furniture, to make them equal with my 
 daughter, Eliza." 
 
 This necessarily implies that there should 
 be in the hands of his executrix the means 
 of giving to each child, out of the testator's 
 estate, the same advancement as they re- 
 spectively arrived of age or became settled in 
 life, which the testator had himself furnished 
 to his daughter, Mrs. Funchess. The testator 
 probably contemplated that, until his chil- 
 dreh reached maturity or married, they 
 would reside with their mother at the home- 
 stead, as they had resided with him, and 
 would be supported and educated by her as 
 they had been by him. When he specifies 
 what each child is to receive out of his es- 
 tate, at marriage or maturity, it excludes 
 the idea that any part of the property was 
 to be received by such child until that peri- 
 od ; and it also precludes the presumption 
 that, when that period arrived, any child 
 should receive more than was thus specified. 
 The scheme is very analogous to that of the 
 testator in Whilden v. Whilden, (Riley Eq. 
 Cas. 205,) although the testator has not in 
 this will used precisely the same language 
 to express his purposes. But, says Chancellor 
 Harper, delivering the judgment of the Court, 
 "if the testator had said nothing about the 
 maintenance of his children, but had merely 
 directed the estate to be vested till the young- 
 est child should come of age or be married, 
 the Court would, of itself, have done just 
 what he has expressed. It would have pro- 
 vided for the maintenance of the children out 
 of the income of the fund." In tlie will un- 
 der consideration, the testator left, substan- 
 tially, every thing to his wife, during her 
 life, except the slaves, and of these, he be- 
 queathed to her four for life. He does not 
 expressly direct the remaining slaves to be 
 kept together until the youngest child mar- 
 ries or becomes of age, but the law puts or 
 keeps them in the hands of the executrix, 
 to be disposed of according to the provisions 
 of the will. In order to enable her to ex- 
 ecute her trust, by giving to each child, at 
 particular periods, two negroes and otlier 
 property out of his estate, she must have pos- 
 
 *374 
 session of the estate. I^ike any *other trus- 
 
 154 
 
 tee. she must take care of the slaves, and, 
 although nothing is said about maintaining 
 those of the children who are under age and 
 unmarried, yet, as Chancellor Harper de- 
 clares, the law itself would provide for their 
 maintenance out of the income of the slaves. 
 In this case, as I have said, I think such in- 
 tention of the testator is manifestly to be in- 
 ferred by collating the various provisions of 
 the will. Nearly all the children are under 
 age. It is unnecessary, and would be prema- 
 ture, to express any opinion as to the char- 
 acter and extent of the estate which they de- 
 rive under the testator's will. 
 
 It is ordered and decreed that the com- 
 plainant carry into execution the will of her 
 testator, according to the opinion hereinbe- 
 foi-e declared. Parties to be at liberty to ap- 
 ply for further orders, if any such be neces- 
 sary. Cost to be paid out of the estate. 
 
 It was suggested that the executrix had in 
 hand about five hundred dollars, arising from 
 the sales of the crop of the preceding year, 
 hire of the negroes, &c. and that no disposi,- 
 tiou was made of this sum by the will. As to 
 this fund, (as there is no general residuary 
 clause,) it constitutes a case of intestacy. 
 The fund is first applicable to the payment 
 of the debts of the testator, and to the ex- 
 penses incurred by the executrix in the dis- 
 charge of her trust, including the costs and 
 expenses of these proceedings ; the balance 
 remaining of the five hundred dollars, is to 
 be distributed under the Act of 1791. 
 
 The defendants, Daniel V. V. Funchess and 
 Eliza M. his wife, appealed, and moved this 
 Court to modify so nuich of the circuit de- 
 cree as decides, that there should be no 
 present division among testator's children, 
 of the slaves bequeathed in the third clause, 
 upon the following grounds. 
 
 1. Because the expression, "the remainder 
 of my slaves not heretofore divided of in my 
 will," indicates testator's intention to have 
 been, that such and so many of his slaves as 
 in the second clause he desires to be given to 
 his children, as they respectively marry or 
 become of age, should be retained uy his- 
 executrix for that purpose, and that the re- 
 
 *375 
 mainder afore*said, should be equally divid- 
 ed at once among his children, without wait- 
 ing until the youngest child becomes of age, 
 who is now about six years old. 
 
 2. Because the decree of his Honor, by thus 
 postponing the testator's bequest to his chil- 
 dren in the third clause of his will, oi)erates 
 injuriously to the elder children, and partic- 
 ularly to Mx-s. Funchess, to whom the be- 
 quest is now necessary and important, and 
 works no benefit whjitever to their mother 
 or her minor children, all of whom would 
 have the slaves, »&c. bequeathed to them,, 
 which would be ample for their supi)ort. 
 
 3. Because, under the construction given 
 by his honor, it is respectfully submitted, 
 that the widow of the testator, and the duly
 
 IXAI5INIT V. IXAr.IN'IT 
 
 ♦377 
 
 ■qualified executrix of his estate, Is nlili^ed to 
 act as the trustee of the estate and to hold 
 all the iK'irroes in trust, and to keep the estate 
 open for many years, until the younjxest ehild 
 marries or l)econies of ajie, while the slaves 
 hequeathed to her for life, and the slaves 
 which she should retain for the minor chil- 
 dren, tofjether with those which she would 
 hold for the minors upon the division of the 
 slaves in the third clause, as their natural 
 guardian, would proliably be as many as she 
 could profitably manage. 
 
 Ellis & Brewster, for appellants. 
 Munro & Dunkin, contra. 
 
 DARGAX, Ch., delivered the opinion of the 
 Court. 
 
 In this case, very little need be said in ad- 
 dition to what has fallen from the Chancel- 
 lor in his circuit decree. This decree must 
 be modified, in one particular, so as to make 
 it conform to the opinion of this Court. 
 
 The testator gave to his wife all his real 
 estate, household and kitchen furniture, plan- 
 tation tools of every description, provisions 
 of all kinds, horses, hous, cattle, and stock 
 of every description, wagons, gears, bridles, 
 saddles, and barouche, and every thing per- 
 taining to the plantation use. He also gave 
 her four negroes, to be selected by lierself 
 
 *376 
 from among *all his negroes. This properry 
 she was to have and enjoy during her life, 
 and at her death, the real estate was to be 
 equally divided among the testator's four 
 sons: and his five daughters are each to re- 
 ceive one hundred and fifty dollars in com- 
 pensation for their portion of the land. 
 
 The testator then proceeds, in the second 
 clause, to provide as follows: — "As I have al- 
 ready given unto my daughter, Eliza M. the 
 wife of Daniel V. V. Funchess, two negroes, 
 named Will and Hannah, one horse, saddle 
 and bridle, one bed and furniture. I further 
 desire, that as each one of my children mar- 
 ries or becomes of age, they are to receive 
 •out of my estate two negroes, one boy and 
 one girl, between the age of ten and twenty 
 years t>ld. one horse, saddle and bridle, one 
 bed and furniture, to make them equal with 
 my said daughter, Eliza M. the wif»> of Daniel 
 V. V. Funchess." 
 
 The testator then says: — ".'Ul. The remain- 
 der of my negroes not heretofore divided of in 
 my w'ill, is to be equally divided amongst my 
 children, Eliza M. Funchess, .Mary Catha- 
 rine, James Baltus, Vandy Vastine L., Eliza- 
 beth Lovicia, Kachael Owins, David .Jacob, 
 Barbara Dorcas E. E., and Absalome .Moorer 
 Inabinit; but should any of my children 
 afoi'esaid die without an legal issue, their 
 part is to return back, and be eiiually divid- 
 ed, amongst my remaining heirs. I do give 
 the same to them and their heirs forever." 
 
 One of the questions made on the circuit 
 trial, and also ou this appeal, is this; — at 
 
 what time did the testator mean that this 
 division of the remainder of his negroes 
 should take place, and his children be put 
 into the possession of their respei-tive .shares 
 thereof? The will does not. in terms, fix the 
 time, though it is positive and express as to 
 the gift. The construction that would give 
 to the legatees under the third clause, a 
 present right to a partiti<in of the negroes, 
 disposed of in that clause, is incompatible 
 with other important parts of the will. The 
 testator has been impartial in the disposi- 
 tion of his property among his children. lie 
 .seems to have contemplated a perfect eiiuali- 
 ty among them. lie had given to his mar- 
 
 *377 
 ried *daughter, Mrs. Funchess, two negroes, 
 a horse, saddle, &c. And his positive direc- 
 tion is, that as his children came of age or 
 married, they should each receive, out of his 
 estate, two negroes of a particular descrip- 
 tion, a horse, saddle. &c. All his children, 
 with the exception of Mrs. Funchess, were 
 and are still infants; the youngest not more 
 than six years old. How can this provision 
 be carried into effect: — how can this ad- 
 vancement of two negroes and the other ar- 
 ticles, be made out of his estate to his chil- 
 dren as they respectively come of age or 
 miirry, if the negroes are now to be divided? 
 There is no fund in cash, or otherwise, from 
 which this provision can be carried into 
 effect. Ill fact, there is no property of any 
 kind belonging to the estate which is to ac- 
 complish this end, unless resort is had to the 
 negroes dispo.sed of in the third clause. This 
 is the view which the Chancellor has taken 
 of this part of the subject. And in this the 
 Court concurs. 
 
 This view of the case involves the neces- 
 sary implication, that the negroes dispo.sed 
 of in the third clause, should remain in the 
 hands of the executors, until the objects 
 expressed in the second clause have been ac- 
 complished. And these are, that each one of 
 tile testator's children shall, at the proi)er 
 time, receive the advancement provided foi" 
 in that clause. The means of making these 
 advancements, are a charge upon the negroes 
 disiKKsed of in the third clau.se ; which ne- 
 groes are to remain in the possession of the 
 executors for this purpose, until the whole 
 of this trust is performed: that is to say, 
 until the last child entitled to take under the 
 second clause, has received his or her ith- 
 vancement. After this a division may take 
 I)lace. In making the advancements under 
 the second clause, the executors will resort, 
 in the first place, to the stock of negroes be- 
 longing to the estate, for the purpose of 
 getting negroes of a proper description to 
 make the advancements. If none such are 
 to be had from this source, they may be pur- 
 chased from the income of tiie estate then on 
 hand. If that be insutficient for this purpose, 
 a resort may be had to some portion of the 
 corpus of the estate in order to effectuate 
 
 155
 
 *378 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 ♦378 
 
 this intention of the testator. *Biit in the 
 last named contingency, application must be 
 made to this Court. The other articles to be 
 advanced, namely, the horse, saddle, bridle, 
 &c. must be provided for in the same way, 
 as is indicated above, in reference to the ne- 
 groes to be advanced. 
 
 So far this Court concurs in the views and 
 in the decree of the Chancellor. But what 
 is to be done with the income of the negroes 
 disposed of in the third clause, until the time 
 of the division? A portion of it will be ab- 
 sorbed, from time to time, in carrying into 
 effect the provisions of the second clause. 
 So much of it as may be necessary, will be 
 applied to these purposes. But what is to be- 
 come of the balance, and to whom does it 
 belong? The circuit decree gives it for the 
 maintenance of the minor children who reside 
 with the widow, and who are thus entitled, 
 according to the decree, imtil they are to re- 
 ceive their advancements. This Court is of 
 a different opinion. It is not so given by 
 the terms of the will, nor is there just ground 
 for such an implication. The lega<'ies given 
 in slaves in the third clause are vested leg- 
 acies, subject to be divested on certain con- 
 tingencies. They are given in language, 
 which imports a right to a present division. 
 But this clause has been construed in 
 connection with other parts of the will ; so 
 that, although the legacies are vested, the 
 division and possession are postponed. This 
 postponement takes place, because the prop- 
 erty is subject to certain charges, which have 
 been herein declared. Subject to these 
 charges, the legatees under the third claiise 
 are entitled to an equal share of the annual 
 income, to be paid annually as the income 
 arises. In other words, so much of the an- 
 nual income as remains, after obtaining the 
 necessary articles for carrying into effect 
 the provisions of the second clause, accord- 
 ing to the rules hereinbefore laid down, must 
 constitute a fund to be distributed so soon as 
 the fund exists in equal shares among all the 
 legatees mentioned in the tliird clause. The 
 circuit decree is, in this respect, reformed. 
 In all other respects, it is affirmed and the 
 appeal dismissed. 
 
 JOHNSTON, DUNKIN 
 CC, concurred. 
 Decree modified. 
 
 and WARDLAW. 
 
 3 Rich. Eq. *379 
 
 *ALLEN W. NIX and Others v. ALMEDIA 
 HARLEY and HENRY MILHOUSE. 
 
 (Columbia. May Term, ISul.) 
 
 [Account <©=»!.] 
 
 Defendant purchased plaintiflf's slave from 
 a third person — remained in possession some- 
 time, — and then re-sold her to the person from 
 whom he had purchased, — all without notice of 
 
 any right in plaintiffs:— JTcW, that a bill woultT 
 not lie to gompel defen'lant to account for the 
 price received by him, and the hire before the 
 re-sale, — plaintiffs should pursue their remedy at 
 law. 
 
 [Ed. Note.— Cited in Hollidav v, Post^ju & 
 Son, 60 S. C. 106, 38 S. E. 449. 
 
 For other cases, see Account, Cent. Dig. § 1 ; 
 Dec. Dig. <©=>!.] 
 
 [Eqiiitij €=3427.1 
 
 Nine plaintiffs filed their bill against defend- 
 ant for the specific delivery of a slave which 
 they claimed as tenants in common: defendant 
 pleaded the statute of limitations, which was 
 sustained as to four of the plaintiffs who were 
 of age four years before the filiug of the bill — 
 the other five being then infants: the effect of 
 sustaining the plea as to four of the plaintiffs be- 
 ing to vest in the defendant four-ninths of the 
 slave, ]iehl, that, under the prayer for general 
 relief, the other five plaintiffs were entitled to 
 a decree for the sale of the slave for partition. 
 
 [Ed. Note.— Cited in Barr v. Haseldon, 10' 
 Rich. Eq. 60. 
 
 For other cases, see Equity. Cent. Dig. § 
 1009; Dec. Dig. <g==>427.] 
 
 Before Dunkiu, Ch., at Barnwell, February,. 
 1S51. 
 
 Dunkin, Ch. The bill is, obviously, mul- 
 tifarious. Thei^ is no connexion whatever 
 between the defendants. The comiilaint 
 against them is in reference to different ob- 
 jects, and the relief sought entirely ditftrent. 
 They form two distinct cases, and must be- 
 separately considered. 
 
 The complaint against ^lilhouse is that, 
 knowing the rights of the plaintiffs in a 
 negro woman, Jenny, he sold said slave for 
 the purpose of defeating them. The prayer 
 is, that he may account for the price, with 
 interest. According to the testimony, the 
 right of the plaintiffs, to the possession of 
 the negro, accrued in June, 1844. The an- 
 swer of Henry Milhouse is directly responsive 
 to the charges and interrogatories of tiie bill. 
 He avers that, in the latter part of I84.j, or 
 beginning of 184G, he purchased Jenny, for 
 four hundred dollars from Charles Ray, who 
 was in possession, and claimed the slave as 
 his own property, and that he paid him the 
 money ; that the defendant held the slave 
 for more than four years, and afterwards, 
 to wit, in the spring of 1850. he sold her tO' 
 the said Charles Ray, wiio was, and still is,, 
 a resident of Barnwell district, for the same 
 sum as lie had given for her. He positively 
 denies that, at the time of his purchase, or 
 of the subsequent sale, he had any knowledge 
 
 *380 
 *of the plaintiffs's right or that they ever 
 applied to him for any information on the 
 subject, which lie would readily have affordco 
 to them. The bill was tiled on the liOth 
 October, 18.50. 
 
 On this state of facts, (and no other was 
 attempted to be made out by the evidence.) 
 it is difficult to perceive on what ground tne 
 plaintiffs are entitled to the aid of this Court, 
 as against the defendant, Milhouse. The bill 
 states that he was not in possession of the 
 
 156 
 
 «g=»For other cases see same topic aud KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 XTX V. IIARLEY 
 
 *382 
 
 plaintiffs's slave. It avors no dcinand. There 
 is no reason to surmise that, in 1S45 or 1S4(», 
 when the defendant imreliased the slave, he 
 had any doulit aliout the title: it is mere 
 surmise, ai,'ainst the positive denial of the 
 answer, that he had any knowled^'e of the 
 plaintiffs's riu'ht when he parted with the 
 slave in the sprin;: of is."><t. If t.iere he any 
 principle on which the plaintiffs, under tliese 
 circumstances, have any ri^iht to recover 
 from the defendant the amount for whidi he 
 sold the slave, it is a ri.i,'ht for which they have 
 a plain and adequate reme<ly in the ordinary 
 triliunal. 
 
 The case aj,'ainst the other defendant, Al- 
 luedia llarley, is for the specitic delivery of 
 a negro fellow named Jeff, and for an account 
 of his hire since he has been in the defend- 
 ant's possession. 
 
 The defendant, not concedini,' the plaintiffs's 
 rij,'ht. insists on the statute of limitations, 
 as well as the want of jurisdiction. 
 
 The plaintiffs are the nine children of 
 Elizabeth Nix, deceased, and they claim 
 under a deed of their jirandfather, date<l 
 December, 1S15, by which their mother had 
 a life estate in this and other slaves, with a 
 valid limitation to the plaintiff's. The 
 life tenant died on the 4th June. 1.S44; and. 
 some two and a half years afterwards, the 
 father, with some of the plaintiffs, his chil- 
 dren, removed to the State of Florida. The 
 defendant is a daughter of Colonel Tarlton 
 Brown. It seems that Jeff" was purchased 
 by Colonel Brown, from Charles Nix. (the 
 father of plaintiffs.) in 1,S4.'{. Colonel Hrown 
 died in September. 1845. — On the 15th De- 
 cember, 1.S45, his negroes were divided, and 
 Jeff fell to the lot of the defendant. The 
 plaintiff's instituted these proceedings on the 
 25th October, l,s."i(». At the time of the right 
 
 *381 
 ♦accrued, to wit, 4th June, 1S44. all the plain- 
 tiffs residcHl in Soutii Carolina. Three of 
 them, to wit, Allen, Edward and Frances, 
 were, at that time, more than twenty-one 
 years of age. Allen being about twenty-cMght 
 ■ — Edward, between twenty-six and twenty- 
 seven — and Frances, some two years younger. 
 Mary Ann became of age in March, 1.S46, 
 more than four years prioi*to the institution 
 of these proceedings. Four of the plaintiffs 
 were, therefore, l>arred of their claim by the 
 statute of limitations. The jtrayer of the 
 bill is for specilic delivery of the negro. Jeff, 
 antl an account of his hire; and the plain- 
 tiffs have established a title to only live- 
 ninths. It is very clear that this would not 
 entitle them to a specilic delivery. If the ac- 
 tion were detinue in the court of law. the 
 plaintiffs would, necessarily, be nonsuited — 
 for it is a .joint action — the right is a joint 
 right. In Henry v. .Means, {-2 Hill. :V.',4.) and 
 in Bail. Eij. .">.'!5. the rule is recognized that 
 the right of the infant joint tenants may be 
 preserved, although the adults be barred by 
 the statute; and the Court consider the ac- 
 
 tion of trover as a proper mode of enforcing 
 the right. "The action of trover," says the 
 Court, "which is the one liefore us, does not 
 seek the recovery of the specitic chattel, but 
 damages for the conversion. It is also c-lear 
 that, in such an action, the jury may tind 
 damages exactly proportioned to the title 
 proved. There is no techincal unity in the 
 tlnng to be recovered, which compels us to 
 l)rotect all from the bar of the statute, be- 
 cause it does not reach one." 
 
 Hut, in a i)ill for the specitic delivery of a 
 chattel, there is "a technical unity in the 
 thing to be recovertnl." 
 
 The ground of jiwisdiction in this Court, 
 for the siiecitic delivery of a slave, eiitirel.xt 
 fails, if the right of the plaintiff to the whole 
 be not perfect. If the plaintiff' can make out 
 a title only to a third, or to two-thirds, he 
 can have no specitic delivery, and his remedy 
 at law is as perfect. fi)r the wrong done to 
 his interest, as it would be in the case of any 
 other chattel. 
 
 The Court is of opinion that the plaintitYs' 
 bill nuist be dismissed, and it is so (U'dered 
 and decreed. 
 
 Comi)lainants aj)pealed. on the followinir 
 grounds, viz. : 
 
 *382 
 
 *1. That the complainants were not barred 
 b.v the statute of linntations. and were en- 
 titled to relief on the case as ma<le, both 
 against Almedia llarley aiul Henry Mil- 
 house. 
 
 '2. That, even if some of them weie bar- 
 red, the others were entitled to relief, as 
 against Almedia llarley. by partition or oth- 
 erwise. 
 
 'A. That the complainants were entitled to 
 relief against Henry Milhouse. on the well 
 established principle of e<iuity. that if a per- 
 .son in possession of propert.v undertakes to 
 sell it. and delivers it accordingly, it is at 
 the owner's option, either to i)ursue the 
 property in the hands of the holder, or to af- 
 firm the sale, as the act of the voluntary 
 agent, and recover the prtn-eeds in his hands. 
 Nor, in this case, was the reme<ly at law 
 plain and ade<iuate. 
 
 Bellinger & Ilutson, for complainants. 
 J. T. .\ldricb, Owens, c-ontra. 
 
 WAHDE.VW, Ch., deliver«Ml the opiinon 
 of the Court. 
 
 The Chancellor properly remarks that this 
 bill is nniltifarious. presenting two distinct 
 ca.ses that must be separately considered. 
 
 We "will first consider the case against 
 Milhouse. He Ixaight the slave. Jenny, to 
 which the plaintilTs were entitled in remain- 
 der after a life estate in their mother, — re- 
 mained in possession of the slave for more 
 than four yeai*s. — then re-s(dd the slave to 
 the person from whom he had i»urchased — 
 all without notice of any right in the plain- 
 tiffs. The bill states the fact that .Milhouse 
 had sold the slave, and prays that he may 
 
 157
 
 *.182 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 be required to pay to the plaintiffs tlie price 
 received by liim witli interest, and account 
 for the liire before the sale. The claim of 
 the plaintiffs is one strictly legal, whicli 
 might be enforced by trover or assumpsit 
 in the court of law, and no circumstance is 
 stated requiring the peculiar intervention of 
 this Court. It may be admitted to be a 
 principle of equity, as stated by Chancellor 
 Harper, in Bryan v. Robert, (1 Strob. Eq. 
 343), and Hill v. Hill, (1 Strob. Eq. 23.) that 
 if a stranger in possession of my property 
 undertakes to sell it, and delivers it accord- 
 ingly, it is at my option either to pursue tlie 
 property in the hands of the holder, or to 
 
 *383 
 afHrm tlie *sale as the act of a voluntary 
 agent, and recover the proceeds in his hands. 
 In both of these cases, the vendors had ex- 
 plicit notice of the adverse claims they had 
 sought to evade by sales of the property ; 
 and although it may be true that the prin- 
 ciple may be sometimes enforced against ven- 
 dors who made such sales in good faith, be- 
 lieving themselves to be owners of the prop- 
 erty sold ; yet, certainly, it is the fact of 
 notice of adverse rights that affects the con- 
 science of vendors in such cases, and pecu- 
 liarly justifies the interposition of this Court. 
 I do not question, that if Milhouse had been 
 proiierly brought before the Court for the 
 specific delivery of some slaves in his posses- 
 sion, to whicli plaintiffs had legal title, and 
 to account for the value of other slaves, in 
 the same bill, which he had sold that the bill 
 would be properly entertained in tliis Court 
 for both purposes. But here plaintiff's pro- 
 ceed for the price of a single slave sold, and 
 uotliing more ; and we think that for such 
 a demand, strictly legal in its character, he 
 should pursue his remedy in the court of 
 law. We are the more moved to this course, 
 because this defendant has been joined in a 
 controversy with another defendant, with 
 whom he has no community of interest. It 
 is ordered and decreed that the bill be dis- 
 missed as to Milhouse, but without preju- 
 dice to the right of the plaintiff's to prose- 
 cute their claim elsewhere. 
 
 As to the case against Almedia Harley, we 
 concur with the Chancellor that four of the 
 plaintiff's are barred by the statute of limi- 
 tations, and as to them the bill is dismissed. 
 But we think that the other five plaintiffs 
 are entitled to partition of the slave, they 
 being tenants in common with this defend- 
 ant. The remedy to be afforded, in a case in 
 equity, depends upon the whole pleadings, in 
 the cause. The case may be so varied by 
 the answer of defendants or the proofs that 
 a plaintiff may be barred from the special 
 remedy he seeks, yet, under the prayer for 
 general relief, the Court will afford such 
 remedy as is proper under all the circum- 
 stances of the case. Here the plaintiffs pre- 
 sented a case, in which, prima facie, the pe- 
 culiar remedy prayed for, — specific delivery 
 
 of the slave, — was just and equitable ; and 
 they may not have had the means of know- 
 
 *384 
 
 ing, and were not bound *to anticipate, what 
 defences might be set up by the defendant. 
 The whole case is before us, and in avoid- 
 ance of further litigation, we will decide now 
 upon the rights of the plaintiffs and the de- 
 fences of the defendant. The effect of allow- 
 ing the plea of the statute of limitations 
 against the adnlt plaintiff's and disallowing 
 it as to the infants is to vest four-ninths of 
 the slave in the defendant and to leave the 
 five younger plaintiff's each entitled to one- 
 ninth. It is ordered and decreed that the 
 defendant Almedia Harley deliver the slave 
 Jeff' to the commissioner of this Court for 
 Barnwell district and that said commission- 
 er proceed to sell said slave at public auc- 
 tion, on a credit of twelve months, and dis- 
 tribute the proceeds of sale among the par- 
 ties according to their interests as herein in- 
 dicated. 
 
 JOHNSTON, DUNKIN and DARGAN, CC, 
 
 concurred. 
 Decree modified. 
 
 3 Rich. Eq. 384 
 
 CHARLES C. HAY v. FREDERICK J. HAY, 
 
 Jr., et al. 
 
 (Columbia. May Term, ISol.) 
 
 [Wills <©==>603.] 
 
 Testator devised and bequeathed his estate, 
 real and personal, to his only child, S. B. "'and 
 the heirs of her body;" and if she should "die 
 without living issue of her body, then, and in 
 that case, all my estate, both personal and real, 
 to return to the nearest heirs of my body by 
 my mother's lineage:" — Held, that, in the real 
 estate, S. B. took a fee conditional, and that 
 there was no remainder to her issue, as pur- 
 chasers. 
 
 [Ed. Note. — Cited in Corbett v. liaurens, 5 
 Rich. E(]. 323; Gadsden v. Desportes, 39 S. 
 C. 143, 17 S. E. 706; Bethea v. Bethea, 48 S. 
 C. 441, 443, 26 S. E. 716. 
 
 For other cases, see Wills, Cent. Dig. § 1354 ; 
 Dec. Dig-. <@=>603.] 
 
 {Perpetuities <©=34.] 
 
 As to the real estate, the limitation over, on 
 S. B's dying "without living issue," was void 
 for remoteness. 
 
 [Ed. Note.— Cited in Graham v. Moore, 13 
 S. C. 119 ; Gadsden v. Desportes, 39 S. C. 144, 
 17 S. E. 706. 
 
 For other cases, see Perpetuities, Cent. Dig. 
 § 26; Dec. Dig. (©=>4.] 
 
 The question, — whether, as to the personal- 
 ty, there was a valid limitation to the issue of 
 S. B., as purchasers, — ordered to be re-argued. 
 
 Whitworth v. Stuckey, (1 Rich. Eq. 404) ex- 
 plained. 
 
 [Witnesses <©=:'65.] 
 
 A wife is not an incompetent witness, mere- 
 ly because of the conjugal relation, to prove, 
 after the husband's death, that a parol gift, al- 
 
 158 
 
 ®s:3For other cases see same topic and KEY-NUMBEH iu all Key-Numbered Digests and Indexes
 
 HAY V. HAY 
 
 *387 
 
 leged to Lave boon mado l\v the luisbaiul in his 
 
 lifetime, was, in fact, a loan. 
 |K(1. Note. — For other cases, see Witnesses, 
 
 Cent. DIr. S IM-': I>«'f. Dii:. C=3(i.">.l 
 
 [This case is also cited in (Jadsden v. Desportes, 
 o9 S. C. V.','2, 17 S. 10. 7(lt;. and distinguisli- 
 ed therefrom, and in (Jraham v. Moore. Vi 
 S. C. lis, as to the legal effect of the phrase 
 "die without leaving lawful issue."] 
 
 Before Johii.ston, Cli., at I^'xiiigton, July 
 1S50. 
 
 Johnston, Cb. This <.asc> was broujiht be- 
 fore me, by consent ot parties, and heard 
 
 *385 
 the 24ih day of July, ISfH), at Lex*ingtou, 
 where I was holding an extra term for the 
 business of that district. 
 
 Of the numerous (luestions made by the 
 pleadings, two only were subnntted for ad- 
 judication: and I shall state only so nuich 
 of the ease as may siiftice to render my de- 
 cision of them intelligilde — 
 
 The late Col. Frederick J. Hay died the 
 10th of August, 1S4"J. leaving a widow. Susan 
 Cynthia Hay; five sons. Charles C. Hay. 
 Frederick J. Hay, (the younger) Kev. Samuel 
 H. Hay. Thomas T. Hay and Oscar P. Hay; 
 three daughters, Mary L. (the wife of Uichard 
 A. Gantt) Susan C. Hay (the youngeri and 
 Martha H. Hay ; and a grand-daughter, 
 Harriet Ford Hay. only child of a pre-deceas- 
 ed son. "NVm. A. Hay. 
 
 He left about two hundred slaves, and a 
 large landed estate, consisting of numerous 
 tracts, described in the pleadings. All the 
 slaves, and the larger portion of the land, 
 he had acquired by his said wife. Susan, who 
 was the only issue of her father, Charles 
 Jones Brown, who died some fifty years ago. 
 
 Col. Hay left a last will and testament, 
 dated the 19th of July, 1S48, and a codicil 
 thereto, dated the 8th day of September. 
 1848, both duly executed: by which, among 
 othqr things, he disposed of the slaves and 
 land ac(iuired by his marriage, among his 
 wife, children and grand-child. 
 
 After his death, a will left by his wife's 
 father, the said Charles J. I?rown. came to 
 light. It was duly executed, so as to pa.ss 
 real estate, the Ttli of July, 17!)S, and is in 
 the following terms: — 'I give and beipieath 
 to my loving daughter, Susan Cynthia Brown, 
 and the heirs of her body, all my worldly 
 estate, both real and personal; i>rovided, if 
 my said daughter. Susan Cynthia Brown, 
 shoidd happen to die without living issue of 
 her bod.v, then, and in that case, all my said 
 estate, both personal and real, to return to 
 the nearest heirs of my body, by my mother's 
 lineage." 
 
 Mrs. Hay, and all those of her children, 
 who are of ag«'. and capable of consenting, 
 ac(|uiesce In Col. Hay's will, and raise no 
 claim in opposition thereto, uiuler Brown's 
 
 *386 
 will. But it is *contended, in behalf of the 
 infant grand-daughter. Harriet Ford Hay. 
 that Brown's will limits the slaves and huid. 
 
 which Col. Hay accpMred by his wife, in re- 
 mainder to her hssue as purchasers: and that 
 it was not in Col. Hay's i»ower to deprive 
 them of this interest by his will. 
 
 The tirst of the two (luestions suiindtled to 
 me, is whether the will of Charles J. Brown 
 creates the limitation conti-nded for; and 
 this in(iinry is made for the beneht not only 
 of the grand-daughter, but of all the parties 
 who are not sui juris and capal)le of consent- 
 ing to the dispositions of this property made 
 by Col. Hay. 
 
 I shall, in the first place, apply the words 
 of Brown's will to the p«Msoiial property — 
 the slaves. 
 
 The Witrds of direct gift to Mrs. Hay and 
 the heirs of her body, without more, would 
 certainly have given her this jiroiierty abso- 
 lutely; this adnuts of no doubt. But it is 
 as well settled in this State as any question 
 can be. though perhaps not as satisfactorily, 
 that where an express linntation of person- 
 alty to one and the heirs of his body, or issue, 
 is followed by a linntation over, to take ef- 
 fect on the failure of such heirs or issue, at 
 the death of the lirst taker. — this linntation 
 over reflects back upon, and gives construc- 
 tion to„ the lirst words, and creates a re- 
 mainder, to such heirs, or issue, of the tir.st 
 taker as shall be living at his death. This 
 was settled, after nuich discussion, in the 
 construction of Bell's will, (Henry v. Arch- 
 er, Bail. Eq. ooH) and has been the doctrine 
 ever sinc^.; and I an> bound by it. 
 
 The question, then, is ; is there such a 
 limitation over in this case? I thiidv not. 
 
 The property is to go over "if." (or when) 
 Susan Cynthia Brown "shall haiipen to die 
 without living issue." 
 
 If the word "living" were onntted. and the 
 linntation overbad been upon •Susan's" dying 
 "without issue." it adunts of no doubt that 
 this would not have been a limitation over to 
 take effect dehnitely at Susan's death, but at 
 any time after her death, however remote, 
 
 *387 
 when she might prove to be 'without *issue;" 
 — that is, as the cases have ruled, upon an 
 indefinite failure of issue. 
 
 The subtle reasoning upon which the 
 doctrine was founded, is constantly iiallling 
 the common sense meaning of terms, and 
 therefore the doctrine itself is rarely recalled 
 to the mind without an effort. But it is set- 
 tled and established beyond doubt : and is 
 therefore the rule by winch this Court nuist 
 proceed. 
 
 The words of the will before me. are pre- 
 ci.s(dy the words which have always been thus 
 held insuthcient to create a valifl limitation 
 over, (and therefore insuthcient to convert 
 the heirs or issue of Mrs. Hay's body Into 
 purchasers in remainder.) — except that the 
 word "living" is prefixed to the word "issue." 
 What sort of difference can that make':' 
 The proi)erty is not to go over when Mrs. 
 Hay is "without issue," but when she is 
 
 159
 
 *387 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 "without living issue." Is not tliis one and t 
 the same event? Is not the contingency of' 
 being without living issue, liable to be as 
 remote, as that of being without issue? 
 
 A man can never be without issue while 
 the issue are living ; nor be said to have is- 
 sue when they are dead. By issue, wher- 
 ever referred to in the cases. Is meant living 
 issue ;— and the phrase "without issue," which 
 has been judicially interpreted to signify a 
 failure of issue, necessarilj-l imports, that 
 wherever and whenever the failure occurs, 
 it has arisen in consequence of there being, at 
 that time, no living issue. The word living, 
 creates, in law, no qualitication of the word 
 to which it is prefixed and the decision must 
 be precisely the same as if it were not in the 
 will. 
 
 The word "living" is not the only one in 
 this sentence which seems to be surplusage. 
 The words "of her body" are equally so ; — 
 and add nothing to the word "issue," which 
 necessarily as issue, is "of the body." 
 
 Until satistied on that point, I could not 
 avoid the conjecture that the copy furnished 
 me was incorrect, and that the word living 
 had been mistaken for leaving; a word that 
 has been held to indicate the time of the 
 first taker's death ; as pointing out the junc- 
 ture when he leaves (separate or departs 
 
 *388 
 
 from,) his *issue, — who are then left living 
 behind him. The word living has no such 
 power. It has no reference to the act of the 
 dying ancestor, but siuqjly to the quality of 
 the issue ; and the quality it describes, is 
 one always intended in law, whether it be 
 used or not, when issue are spoken of in such 
 a connexion. 
 
 But it was argued that though all this be 
 conceded, still there is a circumstance in this 
 limitation over, sutticient to confine the event 
 on which it depends to the death of ^Irs. 
 Hay ;— and that is, that the limitation over 
 is to a person or persons in esse. 
 
 There are cases in which a limitation over, 
 otherwise too remote, has been tied down to 
 a definite period by such a circumstance. But 
 to whom is the property limited over here? 
 
 To the nearest heirs of Brown's body, by 
 his mother's lineage. Whether the persons 
 to take were in esse, can only be ascertained 
 by the description of the giver, for they are 
 not named. Who or what Is meant by 
 "heirs of my body, by my mother's lineage?" 
 — and how are we to ascertain which of them 
 Is meant? 
 
 If no person can be brought under the de- 
 scription, the person intended to be described 
 could not have been in esse. The limitation 
 over is to nobody : there is no such limitation. 
 
 Now, whom did the testator intend to de- 
 scribe, as not heirs of his mother's body, but 
 of his own, — and while proceeding from 
 bis own body, being of liis mother's lineage, 
 in exclusion of his father's? And which 
 
 160 
 
 of these (if this can be found out,) did he 
 regard as the nearest? 
 
 What did the testator mean? Sevpral hy- 
 potheses have been suggested. It was sup- 
 posed that, by nearest heirs of his body, he 
 meant his next of kin ; and that his intention 
 was to limit over to his next of kin in the 
 maternal line. 
 
 But, in the first place, I do not know by 
 what authority we are to divert the meaning 
 of the technical words "heirs of my body" 
 from their technical import, unless there was 
 something in the context to guide us to an- 
 other application of them. We are not at 
 liberty to conjecture. And what is there 
 
 *389 
 in the cou*text to show us what interpreta- 
 tion, other than the technical one, conforms 
 to the intention? 
 
 In the next place, if we suppose that next 
 of kin were intended, what is there to show 
 that the reference was to next of kin exist- 
 ing at the death of Mrs. Hay, and not next 
 of kin existing when her issue should ulti- 
 mately fail? The reference to a class of 
 l)ersons, by description, capable, in indefinite 
 succession, of coming within the description, 
 and claiming the property, does not, as Sir 
 William Grant says in one of the cases, 
 (Massey v. Hudson, 2 Merivale, 135,) "obvi- 
 ate the objection of remoteness ;" — it is not 
 a reference to persons in esse, as definite 
 persons, for whom a personal enjoyment was 
 intended. 
 
 Another hypothesis was, that the testator 
 referred to his mother's nearest relations, or 
 next of kin. But this is liable to the same 
 objections as the one we have already con- 
 sidered: it is merely conjectural, and it does 
 not point us to a definite time. 
 
 A third conjecture was, that Mr. Brown 
 may have contemplated the possibilitj' of 
 having other issue, besides Mrs. Hay, to 
 whom he wished the property to go over, in 
 case she should die issueless, either in his 
 lifetime or afterwards. The answer, in the 
 latter case, is still the same as that which 
 has been given to the previous hypothesis. 
 In the former case, (her pre-decease of the 
 testator,) the answer is, that the will would 
 have taken effect in Mrs. Hay, or in the oth- 
 er issue of Brown alternatively and not first 
 in the former and then in the latter, by way 
 of limitation over. If it took effect in Mrs. 
 Hay, there was to be (in the case supposed) 
 no limitation over. 
 
 But, after I have gone through this will, 
 in every way it has been presented, I confess 
 my inability to comprehend what the testa- 
 tor can have meant by the limitation over ; 
 and I incline to the opinion that it is void, 
 for uncertainty: for the only remaining sup- 
 position, (besides these which were suggested 
 by counsel,) is the alisurd one that the limi- 
 tation over was intended for the heirs of te.s- 
 tator's body, (meaning Mrs. Hay and her is- 
 sue) ; that is, that he intended to limit over
 
 HAY V. IIAY 
 
 »39^ 
 
 to them, to take effect only upon the eoiitiii- 
 geiiey uf their own deaths ami extinction. 
 ♦ 390 
 
 ♦I will now apply the words tif tiie will to 
 the realty. 
 
 The words of direct iU'ift, of t lienisdves, 
 create, in Mis. Hay, a fee conditional, de- 
 scendible, per formam doni, to the lu'ir.s of 
 her body. Tlie limitation over, as we have 
 .veon, is too remote as to the jiersonalty. H 
 is eipially so as to the realty. Indeed, words 
 wliich wonld he sulhcient to tie «lown a limi- 
 tation over, of persomilty, to the death of 
 the tirst taker, are sonu'times insuthcient to 
 produce that effect as to lands; — of wliich 
 we havi' examples in Forth v. Chapman, (1 
 P. Wins, (ic.'l,) and in our own ease of Mazyck 
 V. yanderhorst, (1 I'.ail. Kq. 4S.) liut even 
 if the limitation over were within proper 
 time, it has not the .same effect upon the pre- 
 <e(liiiij; limitation, in cases of real estate, that 
 is allowed to it in cases of personalty. In 
 the latter case, we have seen (as was decid- 
 ed in the cases on Hell's will, Bail. Imi. 5.35,) 
 that such a limitation over converts the is- 
 sue, or heirs of the body, mentioned in the 
 words of direct gift, into purcha.sers in re- 
 mainder. lUit the same judge, whose opin- 
 ion was established in these cases, held, in 
 Whitwortli v. Stuckey, (1 Kich. Eq. 411,) that 
 when real estate is concerned, the direct gift 
 is unaffected by the limitation over ; and 
 that was the only question, in relation to the 
 construction of the will of Fraser, which 
 was considered and discussed liy him in that 
 case. As it has been sometimes supposed 
 that the learned .Judge had investigated the 
 direct words of limitation, apart from the 
 words of limitation over, I have thought it 
 worth wliile to re-examine liis opinion, and I 
 find that he assumes the legal construction 
 of the former: and. taking that construction 
 for granted, proceeds to consider w^hat he re- 
 garded the real question, viz.: — Whether the 
 limitation over had any effect to control or 
 (lualify it. "Tliere is no (luestion." says he, 
 (Id.) "that, if there had been no more in the 
 will than a gift to a son, for and during the 
 term of his natural life, and, at liis death, to 
 the lawful isstie of his body, this would have 
 given an estate tail, or fee conditional, un- 
 der the rule in Shelley's case. Tlie (piestion 
 is upon the effect of tlie limitation over, if 
 lie siiould die witiiont leaving issue of his 
 body living at the time of his death. 'Does 
 
 *391 
 *tliis. according to the eslalilislied rule of 
 law, sulliciently indicate the testator's inten- 
 tion that the tirst taker should be restricted 
 to a life estate, and the issue take as pur- 
 chasers';" It is with reference to tliis (lues- 
 tion that he i)roceeds to an examination of 
 the cases, which he closes by a remark upon 
 Gilmaii v. Elvey. that the Court, in tlie con- 
 struction of tlie will in that case, did "not 
 resort to the limitathni over in the event of 
 the son's not leaving issue living at tlu- time 
 3 Rich. Eq.— 11 
 
 of his death, to confirm its conclusion:" 
 wliich oliservation shows that he kept the 
 question wliicii he had proposed to discuss 
 steadily iiefore him: (Id. 412.) 
 
 In Forth v. Chapman. (1 I'. Wins. tUi."..) it 
 was held, that upon the same words of tlie 
 same will, limiting over real and personal 
 property, the limitation over <tf tiie former 
 would ite void for remoteness, wliile that of 
 the latter would be supported — an authority 
 that lias been followed ever since; — and 
 there is nothing more unreasoiialile or incon- 
 sistt'iit in holding, as in Henry v. Archer, 
 and in Wliitworth v. Stuckey. (1 llich. Eq. 
 411,) that tiie t-tTect of a limitation over to 
 convert the word "issue,"' mentioned in a 
 preceding limitation, into a word of pur- 
 clia.se, is different, according as the subject 
 be real or personal estate. 
 
 The decision in Forth v. Cliapiiian, (1 I'. 
 Wms. ()t!.'l,) turned upon the different quali- 
 ties of the two species of property ; a sub- 
 ject tliat had been previously considered, and 
 witli'the same result, in Target v. (iaunt, (1 
 P. Wms. 4.'J.") :) where the different natures 
 of tlie property are considered. 
 
 Wliere is the inconsistency':' One of tliem, 
 (real estate,) is descendible — the other, (per- 
 sonal estate) never is so, nor can it be ren- 
 dered inheritable liy any words you can em- 
 ploy. Now, where real estate is limited to 
 one and the heirs of his body or i.ssue, and 
 then limited over, (upon any contingency, 
 however near,) the primary objects of tlie 
 grantor's bounty are those to whom he has 
 expressly given his estate in the first in- 
 stance, and it is contrary to his intention 
 that the ultimate limitation shall ever take 
 effect while there are any of the former to 
 
 *392 
 enjoy what *he designed for them. If you 
 take ad\antage of the limitation over to con- 
 vert tlie heirs or issue mentioned in the di- 
 rect gift into purcliasers, you not only invert 
 the intended oriler of the bounty, but you 
 are destroying the very estate he intended to 
 create in the fir.st instance. He intended to 
 create an estate descendible indefinitely per 
 formam doni; you arrest the descent, and 
 turn it into a new channel. He intended the 
 amplest efflux of the primary e.state: — that 
 issue should succeed to issue in the enjoy- 
 ment of it, while there shall be issue to en- 
 joy. Put you mar this int«Mition when you 
 declare that the first issue shall take by pur- 
 chase, that no other issue shall take, and 
 tliat when the first issue are dead, though 
 there be succeeding issue, tliey sliall not en- 
 joy as such. In cases of real estate, there- 
 fore, to allow tli(> words of ultimate limita- 
 tion to control the jirior words and change 
 their operation, would be a complete defeat 
 of the primary and leading intention of the 
 grantor. Nor is there any necessity to do so. 
 If the limitation over lie sulliciently near, as 
 to time, it may be allowed to stand by way 
 of executory devise, without abridging tlie 
 
 161
 
 *392 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 prior disposition. The two dispositions may 
 stand, in all their amplitude, as separate 
 things, according to the terms and intention 
 of the donor ; and so they should stand. Is 
 there any instance in which the limitation 
 over of realty has been allowed to arrest the 
 efflux of the prior estate? 
 
 But does this reasoning apply to personal- 
 ty? It is not descendible. When it is at- 
 tempted to be limited to one and his issue, 
 the issue cannot take by descent ; and if they 
 are to derive any benefit under the convey- 
 ance, it must be by purchase. They cannot 
 take in succession, as in cases of real estate. 
 But, as was argued by Chancellor HARPER, 
 in Henry v. Archer, where there is a gift to 
 them, there is an expressed intention that 
 they shall enjoy, if, in the circumstances, 
 the law will allow it ; and where there is a 
 limitation over after a gift to issue, there is 
 a clear declaration that the issue are prefer- 
 red over the ultimate remaindermen, in the 
 affection of the grantor. If the limitation 
 over is to take effect at a given time, the will 
 or other instrument shews us that whatever 
 
 *393 
 
 issue may happen to exist at that time, *are 
 intended to take before the ulterior limitee. 
 Now the question is reduced to this, in every 
 such case — is the limitation over good? Is 
 it within time? Can he, for whom it was 
 intended, take? If he can, then any other 
 person who can, at that juncture of time, 
 shew a stronger intention in his favor, is 
 better entitled than he, and should, in effect- 
 uation of the intention, be preferred before 
 him, as far as the law will allow it. Now, 
 in the case we have supposed, (of a limita- 
 tion over at a lawful time, after issue.) any 
 issue existing at that time, can shew a su- 
 perior intention in their favor ; and are en- 
 titled on the score of intention. And as they 
 cannot lawfully take by inheritance or suc- 
 cession, must be allowed to take in a differ- 
 ent way, by way of purchase, or the inten'- 
 tion is defeated. 
 
 Thus we see that the decisions in Henry v. 
 Archer, and in AVhitworth v. Stuckey, though 
 they establish different rules, establish the 
 same principle ; and the apparent discrepan- 
 cy arises from the diversity of subjects to 
 which it is applied. The intention is the 
 Pole Star, and both these cases steer to it 
 from different points. 
 
 The other yuestion relates to a parol gift 
 of slaves, which the administrator of AVil- 
 liam A. Hay, the pre-deceased son, alleges 
 was made to him in his lifetime, by his fa- 
 ther. Col. Hay. This gift is disputed, and it 
 is contended that the slaves were loaned, not 
 given. Mrs. Hay proves a loan, beyond 
 doubt; and if I could receive her evidence, 
 it would be decisive of the question, (o) 
 
 (a) Mrs. Hay's testimony was, that she heard 
 
 Willinin A. Hay say that he held the negroes 
 as a loan. R. 
 
 162 
 
 Her competency is not liable to the objec- 
 tion of interest on her part ; but 1 think it is 
 settled, not only that husband and wife are 
 exchided from testifying for or against each 
 other, during their joint lives, but that even 
 after the dissolution of the marriage relation 
 by the death of one of the parties, the sur- 
 vivor is incompetent to testify in relation to 
 the rights or estate of the deceased. See 
 Footman v. Pendergrass, (2 Strob. Eq. 322.) 
 Mayrant v. Guignard, (3 Strob. Eq. 112,) and 
 
 *394 
 O'Conner v, *Mayerbank, (43 Eng. Com. Law 
 Rep. 228 (S. C.) 4 Maning & Grayer Rep.) 
 
 The ground of the doctrine is one of social 
 policy, not interest ; it arises from the con- 
 fidence essential to the relation ; and it is 
 not necessary that the stibject of the evidence 
 should have been imparted to the survivor 
 in exiu'ess confidence. Whether that is the 
 case or not, he or she shall not be allowed to 
 make use of it in evidence; because such is 
 the intimacy of the relation of husband and 
 wife, that there should be no reserve be- 
 tween them ; and if either of them were put 
 under fear that whatever of his or her rights 
 might happen to be exposed to the othei", — 
 whatever that other might chance to see or 
 hear, might be brought to public view, — this 
 would create a condition of tormenting and 
 intolerable oppression, and would lead to a 
 degree of jealousy and suspicion and reserve 
 utterly destructive of domestic peace and 
 happiness. 
 
 The other members of the family whose 
 testimony has been brought to bear against 
 the gift, have attempted, by releases, to di- 
 vest themselves of their interest. Whether 
 the releases have effectually removed their 
 interest, it is tinnecessary to consider or deter- 
 mine, because their testimony relates, not to 
 the facts, but to their opinion of them. In- 
 dependently of this, there is little in evidence 
 from \A hich the inference of gift or no gift is 
 to be drawn, beyond the bare fact that the 
 slaves were put into the possession of the 
 son by the father, and were employed by the 
 son in planting. Now while, as I have said 
 in Henson v. Kinard, (3 Strob. Eq. 371,) I do 
 not think this amounts ipso facto, to a gift 
 in law, it is such a circumstance as may 
 amotmt to evidence of it ; and should be so 
 held if the other circumstances are equivocal, 
 as they are in this ease. I am of opinion 
 that there was a gift, but would prefer that 
 the parties would take an issue, for which 
 leave is hereby granted them, if they make 
 up the issue within three months after my 
 opinion is filed. Having now given the opin- 
 ion of the Court, which the parties desired to 
 take upon the two questions submitted by 
 them, it is left to coiuisel to propose a decree 
 upon those points, and the remaining points 
 of the case. 
 
 *395 
 
 *The defendant, Harriet F. Hay, appealed, 
 on the following ground:
 
 HAY V. HAY 
 
 *39-: 
 
 That his Honor should have decrood that, ( 
 hoth as rej-'ards tho rt-al and iKM'sonal estate I 
 devised and l)e<iuiathed in the will of Charles j 
 J. Brown, the said will contains a iHnnl and j 
 valid limitation to such persons as shall, at | 
 the death of Mrs. Susan C. Hay, answer the j 
 description of heirs of her hixiy then livinj;, ' 
 as purchasers. 
 
 The conipiainant, C. C. Hay, yave notice 
 that he appealed, and would move to reverse 
 and modif.v so nnich of tlu' Chancellor's de- 
 cree as establishes a j,'ift, (of certain slaves,) 
 on the following ;?rounds, ami in the follow- 
 ing particulars, viz.: 
 
 1st. In this: That if a ,i:ift be established 
 jrenerally, it is respectfully siibndtled that j 
 the Chancellor should have expressly except- 
 ed the nei^roes, which were proved to have 
 been sent for n special and temporiiry pur- 
 pose. 
 
 2d. In this: That if liie Ajtpeal Court 
 should decide that the limitations in the will 
 of Charles J. Brown are jiood, then it will be 
 submitted that the supposed gift was valid 
 only durin.s; the life time of F. J. Hay, Sen., 
 whose marital rights did not attach beyond 
 that period. 
 
 3d. Because (as it is respectfully submit- 
 ted) the Chancellor erred in rejecting the tes- 
 timony of Mrs. Susan C. Hay, (the widow of 
 F. J. Ilay, Sen.,) who was a competent wit- 
 ness, and her testimony admissible. 
 
 4th. Because the testimony of the other 
 witnesses for the complainant, C. C. Hay, ex- 
 ecutor, negatived the supi)osed gift. 
 
 The complaiiumt, C. C. Hay, also gave no- 
 tice that, by his notice of appeal, he did not 
 mean to waive his right to an issue, but (if 
 need be) an application would be made for 
 an issue at the hearing in the Appeal Court. 
 
 Bellinger & Hutson, for comi)lainant. 
 James T. Aldrich, for Ilairiet F. llay. 
 
 JOHNSTON, Ch., delivered the opinion of 
 the Court. 
 
 This Court is satisfied with so much of the 
 decree as relates to the real estate; and it 
 is ordered that the same be aliirmed. 
 
 *396 
 
 *It is quite satisfactory to my mind, to find 
 that the case of Whitworth v. Stuckey, as I 
 interpreted it in the decree, is corroborated 
 by the amplest authority. 
 
 "It remains," .says Mr. Jarman, (2 Jarm. 
 359, .3G0; chap. .30, division 2. § o.) "to be 
 ob.served that where a devise to a person and 
 liis issue. — or to him and the heirs of his 
 body, — (b) is followed by a limitation over. 
 In case of his dying without leaving issue 
 living at his death, the only eflect of these 
 special words is to make the remainder con- 
 tingent on the described event. — They are not 
 
 (h) Wri-ht V. Bearson. 1 Ed. 11!): S. C. 2 
 Jarm. 272; S. C. Amb. ooS ; S. C. I'laru. C. 
 K. 120. 
 
 considered explanatory of the species of issue 
 included in the prior devise (c) and, there- 
 fore, do not i»revent the prior devi.see taking 
 an e.state tail under it. (d) The result simply 
 is, that if the tenant in tail has no issue at 
 his death, the devise over takes effect ; if 
 otherwise, tiie devise over is defeated, not- 
 withstaiiding a sub.seiiuent failure of issue. 
 In Doe d. Gilman v. Klvey, (4 Fast. :\i:\; S. 
 C. 2 Jarm. 3;>.3.) the circumstance of there 
 being a limitation over on failure of issue at 
 the death of tiie prior devisee, does not ap- 
 pear to have given ri.se to an argument 
 against an estate tail. The only doubt, it is 
 conceived, could possibly be, whether it would 
 have the effect of rendering the remainder 
 expectant on the estate tail, contingent on 
 the event of the devisee in tail leaving no Ls- 
 sue at his death. (< i The atlirmative, how- 
 ever, .seems to be the better opinion, as the 
 courts would hardly feel themselves author- 
 ized, without a context, to reject the clause 
 'living at his decease.' But words of an 
 equivocal inq)ort would certaiidy not have the 
 effect of subjecting tlie remainder to such a 
 contingency."(/) 
 
 Upon the subject of the loan, we think it 
 advisaiile that an issue be made up. as in- 
 dicated in the decree: the parties asserting 
 the loan to be the actors: and it is ordered 
 that they have leave to make uv said issue, 
 to be heard at the next term of the Court of 
 Common Pleas for Barnwell district. 
 *397 
 
 *As to the competency of Mrs. Susan 
 Cynthia Hay (widow of Col. Hay) to testify 
 on that issue; we are of opinion, that the 
 circumstance of her being the widow of the 
 donor or lender is not sutHcient to render her 
 inconqietent : and that the decree on that 
 subject should be reverseil: and it is so or- 
 dered. 
 
 Our (!wn cases, referred to in the decree, 
 are cases where the husband or wife of the 
 witness were still living. :\Iy own opinion 
 is that the reason of incompetency extends 
 also to cases where the marriage relation has 
 been ternunated by death. But the tiuestion 
 is one of law, and the testimony in this case 
 is to be applied to a legal right ; and the 
 statute, in such cases, reiiuires us to yield tt> 
 the judgments of our law courts. The case 
 of Cahlwell V. Stuart. (2 Bail. 574,1 which, 
 if quoted, was overlooked at the hearing, is 
 conclusive upon us. 
 
 It is uiuiecessary to say anything further 
 here upon the (luestion of the loan or gift. It 
 is reserved until the return of the issue, here- 
 inbefore directed. 
 
 It is ordered that the (piestions in relation 
 to the effect of Brown's will upon the per- 
 
 ((■) Hutchinson v. Stephens, 1 Keen, 240. 
 
 (rf) 2 Jarm. .'WO. 
 
 (c) See Lyon v. Mitcli.41. 1 MjkI. It. 4(57, as 
 to ixMsonalty: and note 2 .Tanu. .'XiO. 
 
 (/) See Bi-nndlun-st v. Mi>rris, 2 Baru. & 
 Adolph. 1; S. C. 2 Jarm. 301). 
 
 163
 
 *397 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 sonalty which passed under it be reargued 
 at the next term, in connexion -with the ver- 
 dict upon tlie issue, if tlien returned, or sep- 
 arately if the issue shall not have been tried 
 before that time. At present we are not pre- 
 pared to decide it; and, therefore, reserve 
 our judgment. 
 
 It will, also, be understood that we reserve 
 our judgment upon the question whether 
 those parties who have signified their will- 
 ingness to abide by Col. Hay's will will not 
 be allowed (if they desire it,) to retract, in 
 the event that the issue of Mrs. Hay be de- 
 clared entitled to take the personalty, in re- 
 mainder, as purchasers, or if the gift con- 
 tended for in the pleadings be established. 
 This matter is here stated that the attention 
 of parties and their counsel may be drawn 
 to the subject. 
 
 It is ordered that all questions not herein 
 decided be reserved until further hearing 
 and further order. 
 
 DARGAN and WARDLAW, CO., con- 
 curred. 
 
 DUNKIN, Ch., concurred in the result. 
 Decree modified. 
 
 3 Rich. Eq. *398 
 
 *E. J. HIGGENBOTTOM v. WM. II. 
 TEYTON. 
 
 WM. H. THOMSON, Ordinarv, v. WM. H. 
 PEYTON. 
 
 (Columbia. May Term, 1S51.) 
 
 [Husland and Wife €=>S.] 
 
 By marriage settlement, made in 1S2G, and 
 not recorded until eight months after its execu- 
 tion, the wife's share in her father's estate was 
 conveyed to a trustee for the use of the wife 
 and the heirs of her body: proceedings were 
 then pending in the Circuit Court of the United 
 States in which the father's estate was inter- 
 ested : in 1832, his real estate was sold by the 
 Marshal and bond taken for the purchase mon- 
 ey : The U. S. Court ordered the wife's share 
 to be paid to the husband in right of his wife; 
 this was not done, and, in 1S50. after the death 
 of the husband, the U. S. Court ordered the 
 bond, which remained unpaid, to be transferred 
 to the State Court of Equity for Barnwell, sub- 
 ject to its decree:— Z/c/rf, that the marital rights 
 of the husband had not attached on the wife's 
 share, and that she was entitled to it, as against 
 the creditors of the husband, under the pro- 
 visions of the mari-iage settlement. 
 
 [Ed. Note. — For other cases, see Husband and 
 AYife, Cent. Dig. § 21 ; Dec. Dig. (g=3S.] 
 
 [Husband and Wife <^;=^?,1.'] 
 
 At the sale by the Marshal of the father's 
 personal estate, one S. at the request of hus- 
 band and wife, bid off a number of slaves as 
 trustee for the wife, and gave his bond for the 
 purchase money : this bond was afterwards set- 
 tled by giving credit as for money to which 
 the wife was entitled, as her share of her fa- 
 ther's estate: S. permitted the slaves to go 
 into the possession of the husband, who kept 
 possession of them, using them as his own till 
 his death : — Held, that, although the marriage 
 settlement was void as against creditors, the 
 
 parol trust created by the purcha'^e by S. was 
 valid ; and that the marital rights of the hus- 
 band had not. under the circumstances, at- 
 tached on the slaves : per Harper, Ch.. in Pey- 
 ton V. Enecks, in note. 
 
 [Ed. Note. — For other cases, see Husband and 
 Wife, Cent. Dig. §§ 17S-195, 88.3. 884; Dec. 
 Dig. <®=331.] 
 
 [Husband and Wife <©=11 ; Trusts <S=17, 18.1 
 A trust in personal property may be created 
 by parol ; and when such a trust is properly 
 created in favor of a feme covert, it is not re- 
 garded as being executed, so as to be liable to 
 creditors, by the mere circumstance of the prop- 
 erty going into the possession of the lausband : 
 per Harper, Ch., in Peyton v. Enecks, in note. 
 
 [Ed. Note. — Cited in Trustees v. Bryson, 3-4 
 S. C. 412, 13 S. E. 619. 
 
 For other cases, see Husband and Wife. Cent. 
 Dig. § 56: Dec. Dig. (©=311 ; Trusts, Cent. Dig. 
 § 17; Dec. Dig. e=Jl7, 18.1 
 
 [Husband and Wife <©=::>29.] 
 
 [By a marriage settlement made in 1826, 
 and not recorded until eight months after its 
 execution, the wife's share in her father's es- 
 tate was conveyed to a trustee for the use of 
 her and the heirs of her body. Proceedings 
 were then pending in the federal court in which 
 the father's estate was interested. In 1832 his 
 real estate was sold by the marshal, and bond 
 taken for the purchase money. The federal 
 court ordered the wife's share to be paid to the 
 husband in his wife's right, but this was not 
 done; and in 18.50, after the husl)and's death, 
 the federal court ordered the bond to be trans- 
 ferred to the state court, subject to its decree. 
 Held that, the husband having never reduced 
 the fund to possession, nor given an order to 
 the trustee for the fund, his marital rights had 
 not attached to the wife's share, and she was 
 entitled to it under the provisions of the mar- 
 riage settlement, as against his creditors.] 
 
 [Ed. Note. — For other cases, see Husband and 
 Wife. Cent. Dig. § 167: Dec. Dig. <©=^29 ; 
 Fraudulent Conveyances, Cent. Dig. § 97.J 
 
 Before Dunkiu, Ch., at Barnwell, Febru- 
 ary, 1851. 
 
 This case came before the Court on excjep- 
 tions, by Lucy J. Enecks, one of the defend- 
 ants, to the Commissioner's report. 
 
 Duukin, Ch. The exceptions of Lucy J. 
 Enecks arise out of this state of facts. She 
 was a daughter of Elijah Gillett. On her 
 marriage with George W. Collins, in 1826, 
 he executed an informal settlement of all 
 that part of lands and tenements, goods 
 and chattels, rights and credits, be(iueathed 
 to and left her by her deceased father and 
 mother. This transfer was made to James 
 Higginbottom, who was named trustee for 
 
 *399 
 the said Lucy, *and the lawful heirs of her 
 body. The trusts were "for her only proper 
 use, benefit and behoof, and the lawful heirs 
 of her body." Proceedings were, at that 
 time, pending in the Circuit Court of the 
 United States, in which the estate of Elijah 
 Gillett was interested. In 1832, his real and 
 personal estate, in the hands of the executor, 
 was sold. The real estate was sold by the 
 Marshal, and purchased by General Erwin, 
 who gave his bond for the purchase money, 
 about $S,27'0. The complainant's bill, iu 
 that suit, was dismissed ; but the Court, 
 
 164 
 
 <g=:3For other cases see same topic and KEV -NUMBER in all Key-Numbered Digests and Indexes
 
 HIGGEXBOTTOM v. PEYTON 
 
 *401 
 
 without beiiifr called on to iiuike (listrihiition, 
 prottt'ded, by its docretal order — which 
 Chaucellof lljuiior afterwards styled "un- 
 usual and peculiar"— to direct that one- 
 fourth of tlie fund sh<»uld he paid to J. Iliy;- 
 genbottom, in rij.'lit of his wife, Julia; one- 
 fourth to (;eor;.'e W. Collins, in ri«ht of his 
 wife. Lucy; one-fourth to .J. S. Towcll. in 
 rijtht of his wife. Lavinia : and the remain-^ 
 inj,' fourth part to Aaron Ciliett. It does not [ 
 appear that this order was made at the in- 
 stance of rollins. or that he ever took any 
 steps to avail himself of it. If the money 
 had been receiv»^l by him, I suppose it could 
 hardly be (piestioned that he would be con- 
 strued a trustee for his wife, under the set- 
 tlement ,of ISLH). 
 
 But Collins departed this life several years 
 since, never having received Ibis money, and 
 the bond of (ieneral Krwin >x\\\ remained un- \ 
 paid. liy a decretal order of the Circuit 
 Court of the T'nited Stati-s, made on the L'Hth 
 November, ISoO. the bond of Ceneral Erwin 
 was ordered to be delivered by the Clerk of 
 the United States Court, t«» the Comunssion- 
 er in Equity for Barnwell district, to be held 
 by him, subject to the decree of the State 
 Court of E(piity. It will be jterceived that 
 the only question is, wMiether the marital 
 rights of George W. Collins attached— wheth- 
 er he held the fund absolutely. It is direct- 
 ed to be paid to him "in right of his wife," 
 and I think it stronger than the case of 
 Peyton v. Enecks, MS. 184."). Barnwell. («) 
 in which Chancellor Harper sustained the 
 
 *400 
 ♦wife's rights under this settlement. It is 
 
 ordered that the second e.xception of Lucy J. 
 Enecks be sustained. 
 
 The creditors of G. W. Collins appealed, on 
 the following grounds, viz.: 
 
 1. Because the marital rights of G. W. Col- 
 lins had attached to his share of the fund in 
 the Federal Court. 
 
 2. Because the said e.\ception contravenes 
 the decision of Chancelhtr Harper, who ex- 
 pressly decided tliat the marriage articles re- 
 ferred to were null and void as against cred- 
 itors. 
 
 3. Because the said exception contravenes 
 
 *401 
 tlie decisions of ♦this Court, not oidy on gen- 
 
 (o) The following is the decree of Clinniellor 
 Harper, in I'eyto.n. Administrator of Collins 
 V. Enecks. ' 
 
 [Husband and Wife <S=>119.] 
 
 [By marriage settlement, not recorded till eight 
 months after its execution, a wife's .share in her 
 father's estate, which was then involved in litiga- 
 tion in the federal court, was conveyed to a trustee 
 for her "only proper use. benefit, and hehoof." At 
 the sale by the marshal of the father's personal 
 t'^I^ « o°<? S'., at the request c' husband and wife 
 Did off a number of slaves as trustee for the wife 
 and gave his bond for the purchase money. This 
 bond was afterwards settled by giving credit as for 
 money to which the wife was entitled as her share 
 of her father's estate. S. permitted the slaves to 
 go into the possession of the husband, who kept 
 possession of them, using them as his own till his 
 death. Held that, although the marriage settlement 
 was void against creditors, the parol trust created 
 by the purchase by S. was valid : and hence the 
 niantal rights of the husband did not attach to 
 the slaves.! 
 
 [Ed. Note.-Por other cases, see Husband and 
 Wife, Cent. Dig. § 425 ; Dec. Dig. ®=»119.] 
 
 Harper, Cir. On the 13th September, 1820 
 *400 
 
 Oeorge W. Collins, in contoiiipliition of ♦his in- 
 temlod marriajio with the defeiulant, then i.ucv 
 (.illett. conveyed to a trustee all the estate o'f 
 the intended wife, in trust for her "onlv proper 
 use, henefit and behoof."' The nnlv property 
 she was then entitled to was an undivided share 
 of her father's estate, of whom she was a 
 residuary legatee. The estate was then involv- 
 ed in liti?;ati(.n. in the Federal Court. This 
 deed was not recorded till the .".Otli .May Is-'T 
 eiRht months after its execution. 
 
 At the sales of the estate of Elijah (JIMett. 
 the father of the defendant, Lucy, one Stephen 
 Smith, at the recpn-st of Collins" and wife, bid 
 off a certain luiiiiher of slaves, as trustee for 
 Mrs. Collins, and gave his own bond for the 
 purcha.se money. This bond, if I understand 
 correctly, was afterwards settled. I.v ^'iving 
 credit as for money, to which .Mrs. Collins was 
 entitled, as her share of her father's estate. 
 The trustee. Smith, permitteil the slaves to go 
 into possession of Geoit;e W. Cdlins. who kept 
 possession of them, using them as his own till 
 his death, in IS'K;. At the time of his death. 
 ( olhns was largely indebted, by jud;;ment and 
 otherwise, and .some of his creditors are pro- 
 ceeding to enforce their claims hy action at 
 law, against the complainant, his administrator. 
 After the death of Collins, by an arrangement 
 .between his widow and the administrator, it 
 ! was agreed- that the propertv. in his possession 
 at the time of death, including the slaves claim- 
 ed by the wife, should be sold, she reserving her 
 claim to the proceeds, and the propertv was 
 .sold accordingly. The objects of the hill are, 
 that the creditors may be restrained from pro- 
 ceeding at law— that an account niav be taken 
 of the estate of Collins, and that the rights of 
 the defendant. Mrs. Enecks. in the nroceeds of 
 the property, sold hy the administrator, mav be 
 declared. I take the marriage rontra(-t to be 
 void, for want of recording, and the case must 
 be decided as if it had never e.xisted. The tpies- 
 tion. then. is. whether the husb.and. C.llins, 
 during his lifetime, reduced into his possessicm 
 his wife's share of her father's pers(.nal es- 
 tate, so that his marital rights attat lied upon 
 it. By his imrchase at the sale. I snppo.se the 
 legal title to the slaves vested in Smith, as 
 trustee for Mrs. Collins. A trust of personal 
 propi-rty may be created hy pand : and. if the 
 trustee had remaintnl in possessi< n of the 
 slaves, hiring them out. and paying over the 
 proceeds of their labor to the wife. I do not 
 perceive how any (iu<'stion could have arisen. 
 The case of IVrryclear v. .lacobs. (i: Hill's E<i. 
 504,) is very similar to the present, and. for 
 the most iiart. must govern it. In that case, 
 it was hild that an assignment might he made 
 by parol of an undivided share of an estate, to 
 which the wife was entitled, to a trustee, for 
 the separate use (if the wife, and that, reduced 
 into the trustee's possession, the proiierty re- 
 mained subject to the wife'r. e(piity. as in the 
 hands of the e.xecutor. There was no (piestion 
 of recording a parol agreement; and the prop- 
 erty never having come into the hiishand's pos- 
 session, his creditors did not trust him on the 
 faith of it, and liad no right to look to it. If 
 the trustee. Smith, jnirchased for the wife, and 
 by the consent of the husband, the monev in the 
 
 ♦401 
 hands of the executor, to which he *might oth- 
 erwise have been entitled, in right of his wife, 
 
 0=3Kor other caaes see same topic and KEV-XU.MilEU iu all Key-Numbered Digests and Indexes 
 
 1G5
 
 *401 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 eral principles, but in relation to this very r 
 claim, set up by Mrs. Enecks. i 
 
 4. Because the said decision is contrary to j 
 evidence, law and equity. 
 
 Bellinger, for appellants. 
 Patterson, Graham, contra. 
 
 DUXKIX, Ch. delivered the opinion of the 
 Court. 
 
 In the proceedings in the Federal Court, 
 the validity or effect of this marriage con- 
 tract was not involved in the issue. Nor 
 were the proper parties before the Court for 
 that purpose. So, in Gillett v. Powell, 
 (Speers Et]. 142,) Chancellor Harper express- 
 ly declares that, in the case then before the 
 Court, no question was made as to the valid- 
 ity of the marriage settlement of George W. 
 Collins, and that nothing is concluded re- 
 specting it in the judgment then to be pro- 
 nounced. In truth, the Court, in that case, 
 considered only the ett"ect of the decree in 
 relation to the rights of J. S. Powell, who 
 had survived his wife, Lavinia, whose marital 
 rights were embarrassed by no marriage set- 
 tlement, and who insisted on the benefit of 
 the Federal decree. Collins never interposed 
 
 *402 
 any claim, departed this life in 1S36, *his 
 
 was applied to pay for it, it forms a similar 
 case. 
 
 In that case, however, the property was not 
 permitted to go into the possession of the hus- 
 band : and as, in this case, it was in his pos- 
 session, and he may have gained credit on the 
 appearance of property, it would seem to come 
 within tlie mischiefs of the recording Acts. But 
 there is great difficulty in applying them. Sup- 
 pose the trustee had purchased of any other 
 person, and the executor, with the hnsliand's 
 assent, had paid the money, should I be au- 
 thorized to say that this transfer to the trustee 
 must be in writing? — that it is a marriage con- 
 tract, or settlement, and must be recorded? If 
 not, and the property were permitted to go into 
 the hands of the husband, subject to the trust, 
 the trust would be good as against him; and, if 
 it would be void as against creditors, it would 
 be on the ground of fraud; and, apart from the 
 recording Acts, this must mean actual inten- 
 tional fraud. But it has nowhere been held 
 that the mere circumstance of giving a man 
 the appearance of property, by putting it into 
 his possession, of itself constitutes such fraud. 
 I perceive no evidence of any actual fraudulent 
 intention. The deed, securing the estate of the 
 wife, was not kept secret. It was recorded, 
 long ])ef()re the property came into the hands of 
 the husband ; and, if creditors, afterwards, 
 trusted him on the faith of it, they had the 
 same means of notice as if the instrument had 
 been recorded in due time: and this woukl liave 
 been valid without a schedule. It is said, in 
 Perryclear v. Jacobs, that, if the trustee 
 "should permit chattels to go into the hands 
 of the husband, this might, perhaps, be con- 
 strued a surrender of tbe trust, and the marital 
 rights attach upon them, so as to render them 
 liable to creditors." But this was before the 
 
 *402 
 late *decisions that, when a trust is properly 
 created in favor of a feme covert, it is not re- 
 garded as being executed, so as to be liable to 
 creditors, by the mere circumstance of the prop- 
 erty going into the possession of the husband. 
 Those are cases of marriage settlement duly 
 
 166 
 
 widow, Lucy J. surviving him ; and, in 1850, 
 the fund, in the Federal Court, still remain- 
 ing a chose in action, was, by the order of 
 that Court, transferred to the Couit of Chan- 
 cery, for Barnwell district, "subject to the 
 decree of the State Court of Equity." 
 
 In the circuit decree I have said, that, if 
 Collins had actually received the money, he 
 would have taken it affected with the trusts 
 of the ante-nuptial settlement executed by 
 himself, and, that receiving and holding in 
 a fiduciary relation, his marital right would 
 not attach. I have heard nothing to remove 
 that judgment. But suppose he had not left 
 this to implication or judicial inference, but 
 had given an order on the registry of the 
 Federal Court, or on the obligee of the bond, 
 to pay the money to Higgenbottom, the trus- 
 tee of the settlement, to be held by him sub- 
 ject to the trusts thereof, as Chancellor Har- 
 per has said in Peyton v. Enecks, on what 
 principle could the creditors of Collins com- 
 plain? The lands sold were his wife's in- 
 heritance. The decree directed the proceeds 
 to be paid to him in right of his wife. By 
 the settlement of 1826, Collins had transfer- 
 red all the right to these lands to Higgenbot- 
 tom, the trustee, and the settlement was re- 
 corded in eight months thereafter. He had 
 never reduced the fund into his possession, 
 
 *403 
 
 and was bound not to *reduce it into his po.s- 
 session, but to do every thing in his power 
 to secure the etHciency of the trust, and he 
 had done so. Instead of giving an order to 
 the trustee for the fund, Collins merely re- 
 frained from doing any act inconsistent with 
 ills covenant, and left the bond in the custody 
 of the Federal Court, who have transferred 
 
 recorded. But, if this trust was duly created, 
 if there was no necessity for registration, and 
 if there was no actual fraud, it must come 
 within the same rule. The trust must be held 
 not to be executed, and not liable to creditors, 
 unless by the intervention of this Court. It is 
 usual to direct a reference as to the terms of 
 the settlement. But the settlement, now to be 
 made, is between the present husband and wife, 
 as of the wife's equity, in the hands of the 
 complainant: and I understand it to be agreed 
 that it shall be to the sole and separate use of 
 the wife. 
 
 It is, therefore, ordered and decreed, that it 
 be referred to the Commissioner, to inquire and 
 report a proper person to be appointed the 
 trustee of the defendant, Lucy J. Enecks, and 
 whether such trustee ought to give any, and 
 what security, for the faithful discharge of his 
 trust; that the Commissioner take an account 
 of the sales of the property sold as the estate 
 of George W. Collins, and inquire and report 
 what portiim of the proceeds of the said sale 
 were derived from the trust property of the 
 defendant, Mrs. Enecks ; and that, upon a 
 trustee being appointed, the Commissioner 
 transfer and assign the amount of such portion 
 of such proceeds to such trustee, in trust, to 
 the sole and separate use of the wife for life ; 
 to the use of husband for life, if he shall sur- 
 vive his wife; at the death of the survivor, to 
 the issue of the said wife then living; and, if 
 no issue of the wife, to the survivor absolutely.
 
 BOWIE V. FREE 
 
 *-10j 
 
 the adniiiiistratioii of the fuiul to the State 
 triliiiiial. 
 
 The Court are all of oiiinitm that the rights 
 of Mrs. Enecks are not precluiletl by any 
 judfrnient heretofore pronounced, and that, on 
 the treneral prineiples of this Court, she is 
 entitled to the fund under the iirovisions of 
 the niarriajje setth'iuent. The decree of the 
 circuit court is atlirmed and the apjieal dis- 
 missed. 
 
 JOIIXSTO.X. 1»AK(;AX and WAiCDLAW, 
 CC concurred. 
 Appeal disujissed. 
 
 3 Rich. Eq. 403 
 
 .7. S. & L. BOWIE V. .](»n.\ n. FREE and 
 Otlicrs. 
 (Columbia. May Tenii. IS.'jl.) 
 
 {Framlulcnt Convenances (©=3lS.";.l 
 
 Where a judgment, cfnifcssed for a much 
 larger amount than is actually due the plain- 
 tiff, and intended not only to secure the amount 
 actually due but also to defraud other creditors 
 of defendant, is set aside, at the suit of cred- 
 itors, for the actual fraud, the plaiiitilT in the 
 judgment will not be allowed to retain its 
 lien, as against the other creditors, for the 
 amount actually due him. 
 
 [Ed. Note. — Cited in DicJcinson v. Way, 3 
 Rich. E(i. 417 ; Garvin v. Garvin. 55 S. C. 
 371. 33 S. E. 458. 
 
 For other cases, see Fraudulent Conveyances, 
 Cent. Dig. § 582; Dec. Dig. (©=>1.S3.1 
 
 Before Dunkin, Ch., at Barnwell, February, 
 1851. 
 
 Dunkin, Ch. The complainants are credi- 
 tors of John G. Free. The oltject of the pro- 
 ceeding: is to set aside a judgment C(»nfessed 
 by John G. Free, to his co-defendants, 11. B. 
 Rice and Allen F. Free, on the ISth January, 
 1849. It seems, from the evidence, that, 
 about the year 1845, John G. Free set up a 
 country store, in Barnwell district, not far 
 from Buford"s Bridge. — Desiring to obtain 
 credit from the wholesale dealers in Charles- 
 ton, he was introduced by the defendant. H. 
 B. Rice, to the complainants, J. S. & L. Bow- 
 ie, "as a responsible purchaser, a man of 
 property, and a hard working, honest man." 
 This reconnnendation not only obtained him 
 
 *404 
 credit with the Messrs. Bowies, *but with 
 Wily, Baid<s & Co. and with others. In Sep- 
 tember, 1848, J. G. Free was in debt to the 
 Bowies to the amount of .$lMis.s7, and to 
 Wily, Banks & Co. .$1,158.04, ami was, at the 
 .same time, consideralily indebted to other 
 dealers in Charlest(ui. He became embar- 
 rassed, and was threatened with suits. Un- 
 der these circumstances, he, on the l!)th De- 
 cember, 1848, gave his promissory note to his 
 co-defendants, II. B. Rice and Allen F. Free, 
 for the sum of six thousand seven hundred 
 and fifty-four dollars and thirty-eight cents 
 ($6,754.38.) and, on the isth January, 184!), he 
 
 (•(Mifessed a judgment on the said note, with 
 interest from the date thereof, on which 
 judgment a ti. fa. was issued aiul lodged with 
 the sheriff of Barnwell district. On the sec- 
 on<l day of July following, the lu-operty of 
 J. G. Free was taken to satisfy said execu- 
 tion, and was sold for about two thousaiul 
 dollars, nearly the whole of the property be- 
 ing bid off by the defendants, II. B. Rice and 
 
 A. F. Free. In the mean time, suits a*^ law 
 were pending against John G. Free, at the 
 instance of the complaitmnts and other credi- 
 tors, and judgnuuits were entered thereon, at 
 Spring and Fall Term, 1S4!). This bill was 
 hied on the 15th August, 1849, charging that 
 the judgment of the iSth January, 1.S49, was 
 fraudulent. The answers of John (J. Free and 
 II. B. Rice were filed on the L'9th Decendier. 
 1S49. and an amended answer of the latter 
 on the 119th January, 1S5(). Some time in 
 1849, but at what time does not appear. J. (J. 
 Free made an assignment of his books, notes 
 and accounts to II. B. Rice and Allen F. 
 Free. One of the witnesses (Bratham) .said 
 that, in 1849, he saw an advertisement, call- 
 ing on the creditors of J. G. Free, to make 
 payment to him, (Rice.) and that the ad- 
 vertisement was signed by Rice as assignee. 
 
 At Fall Term, 1850. for Barnwell district, 
 John G. Free was admitted to the be.nefit of 
 the insolvent debtor's Act, on executing the 
 usual a.ssignment. In his schedule, he in- 
 cludes any interest he may have in the liooks, 
 notes and accounts assigned by him to II. B. 
 Rice and Allen F. Free. 
 
 All the defendants admit that no such sum 
 as $6,754.38 was due by John G. Free to II. 
 
 *405 
 
 B. Rice and Allen F. Free, on the *isth De- 
 cember, 184S. Rice says that, about that 
 time, he and John G. Free made a calculation 
 of what was due by J. (i. Free to A. F. 
 Free, (who had been his ward.) and also of 
 his indebtedness to Rice, as well as of the 
 dei)ts for which Rice was liable, and "found 
 the .same to be about $4,754.38, for which J. 
 G. Free proposed to give them a confession of 
 judgment, but, as the amount of the notes of 
 J. (i. Free, on which Rice was indorser, could 
 not be ascertained, and as J. G. Free might 
 re<iuire subsequent indorsements, it was 
 agreed that the sum of $L».000 should be add- 
 ed and included in said judgment, to cover 
 any amount that might be omitted, as well 
 as any further indorsements." 
 
 It seems that John G. Free was appointed 
 guardian of his brother, Allen F. Free, about 
 1841. He had made regular annual returns 
 to the Conuuissioner. His last return, previ- 
 ous to the confession of judgment, was in 
 January. 1S4.S. The whole amount due to 
 his ward, according to tho.se returns, includ- 
 ing a calculation of interest on the annual 
 balances, was six hundred and four dollars 
 and thirty-four cents. One of the witnesses, 
 
 ©=3For other ca-ses see same topic aud KEV-NUMBEK. iu all Key-Numoered Digests and laae.xes 
 
 107
 
 *405 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 ^vho was a surety on the guardianship bond, 
 but was subsequently released, testified tliat, 
 in December, 1S4S, or January, 1849, he had 
 a conversation with Allen F. Free, in which 
 he stated that he and his brother had had no 
 settlement ; that there were transactions be- 
 tween them, but that he did not sui>pose the 
 amount due him exceeded seven hundred 
 dollars. The whole amount due by J. G. 
 Free to H. B. Rice, in January, 1849, includ- 
 ing interest on his open accounts, appears 
 by the statement filed with his answer not 
 to have exceeded six hundred and ninety-four 
 dollars, and the notes for which he says he 
 was responsible, amounted, by that state- 
 ment, to about one thousand or one thousand 
 and fifty dollars. The whole amount of in- 
 debtedness and liabilities not exceeding stw- 
 enteen hundred and fifty dollars. It is not sug- 
 gested that any "further indorsements" were 
 asked or obtained, by John G. Free from H. 
 B. Rice. It is not the least remarkable fea- 
 ture of the transaction that, at that time, 
 January, 1849, when John G. Free was utter- 
 ly bankrupt, about to be pressed by debts ex- 
 
 *406 
 ceeding three times *the amount of his prop- 
 erty, he should confess a judgment, a large 
 proportion of which was to indenmify the 
 plaintiff against future indorsements. But, 
 according to the statement of H. B. Rice, 
 filed as a part of his answer, and according 
 to the sworn returns as guardian, by John G. 
 Free, the whole amount for which his co- 
 defendants, Rice and A. F. Free, had any claim 
 against him, in January, 1849, scarcely ex- 
 ceeded twenty-three hundred dollars, and 
 they took from him a sealed note for six 
 thousand seven hundred and fifty-four dol- 
 lars thirty-eight cents, with a confession of 
 judgment thereon. Upon this judgment ex- 
 ecution was issued, and, in July, 1849, the 
 defendant's property was sold by the sheriff', 
 and purchased by the plaintiffs in the execu- 
 tion, for about two thousand dollars, leaving 
 subsequent execution creditors, to tlie amount 
 of nearly five thousand dcjUars, wholly un- 
 satisfied. 
 
 There are some remarks of Chancellor Har- 
 per in the case of Hipp & Vansant v. Sawyer, 
 (MS. Lexington, Februjiry, 1830, attirmed by 
 Court of Appeals, book D, 311,) which seem 
 not inapplicable. Part of that case related 
 to a deeu which was attacked as voluntary, 
 but which was attempted to be sustained, 
 because a part of the alleged consideration 
 had been paid. — "Now," says the Chancellor, 
 "if this liad been proven, I should think the 
 difference between the actual payment and 
 the ostensible consideration, a strong circum- 
 stance against the deed. It does not follow 
 that, because a consideration was paid, a con- 
 veyance cannot be fraudulent as to creditors. 
 In Twine's case, there was a consideration. 
 Even if the full value was paid, and it ai> 
 pea red that the transaction was concerted 
 between the grantor and grantee, to enable 
 
 168 
 
 the former to defeat creditors by changing 
 the land into money, which he could more 
 easily put beyond the creditor's, reach, I pre- 
 sume the conveyance would be considered 
 fraudulent. Lord Mansfield says, in the case 
 of Cadogtui V. Kenneth. (Cowper, 434,) 'But, 
 if the transaction be not bona fide, the cir- 
 cum.stance of its being done for a valuable 
 consideration, will not alone take it out of 
 the statute. I have known several cases 
 where persons have given a fair and full 
 
 *407 
 *price for goods, and where the possession 
 was actually changed, yet, being done for 
 the purpose of defeating creditors, the trans- 
 action has been held fraudulent, and there- 
 fore void.' He instances the purchase of a 
 house and goods, with a view to defeat a 
 sequestration out of Chancery, and of goods 
 to defeat an execution, and adds — 'The ques- 
 tion, therefore, in every case is, whether the 
 act done is a bona fide transaction, or wheth- 
 er it is a trick and contrivance to defeat cred- . 
 itors.' The inserting of a false consideration 
 in the deed," continues Chancellor Harper, 
 "shews the transaction to be, in some degree, 
 colorable. It indicates that they thought the 
 true consideration inadequate and insutticient 
 to support the deed." The Chancell»r says, 
 tbe defendant, proliably, did pay some debts 
 of the grantor, and intended him to hold the 
 land not subject to the claims of creditors, 
 and he may have supposed this a benevolent 
 and unexceptionable transaction : "but the 
 law," says he, "pronounces it fraudulent." 
 In the same case, the validity of a confession 
 of judgment, given by the defendant. Sawyer, 
 to his co-defendant, Martin, was impeached : 
 it was for .$8,377. The conqjlainants alleged 
 various grounds, all of which were examined 
 by the Chancellor. Among others, "The con- 
 fession of judgment to Martin," says he, "was 
 made during the pendency of complainants's 
 suit at law against Sawyer, and just before 
 the judgment ; and though a debtor may, 
 without fraud, prefer one creditor to anoth- 
 er, yet the circumstance is entitled to consid- 
 erable weight when the transaction is, other- 
 wise, of so doubtful a character as the pres- 
 ent. According to Twine's case, the making 
 of a conveyance, in satisfaction of a debt, 
 during the pendency of the suit, is one of the 
 badges of fraud, and the confession of a 
 judgment comes within the same reason." 
 After discussing the various circumstances, 
 the Chancellor concludes "that presumptions 
 against the judgment were strong enough to 
 impose on the defendant the burden of shew- 
 ing that it was bona fide, and founded on con- 
 sideration, and that he had failed to do so. 
 Roberts, in his Treatise on Fraudulent Con- 
 veyances, (p. 490,) says, 'though the debt be 
 bona tide due, the judgment, quoad other 
 
 *408 
 *creditors may be mala fide confessed, i. e. 
 may be confessed with intent to delay, hin- 
 der or defraud others of their just and law-
 
 BOWIE V. FREE 
 
 ^410 
 
 fill actions, and such Intent is to be Kuthered 
 from the circmnstances of each case.' " "In 
 the present case," says the Chancellor. "I 
 am not satisfied that any debt was bona fide 
 due; but. if there was. or if defendant was 
 under liabilities against which he was not 
 sufficiently secured, I am satisfied the jud;:- 
 nient was mala fide confessed for an extrava- 
 gant amount, with intent to cover all the 
 pntperty of Sawyer, and to hinder and de- 
 fraud other creditors." The judjimeiit in fa- 
 vor of Martin was declared void, and he was 
 decreed to account for all property which he 
 had received under it. 
 
 If Hipp & Vansant v. Sawyer be law, (and 
 it seems to be well sustained, not only by 
 reason, but by the authority of elementary 
 writers as well as by that of the distin>,'ui.><h- 
 ed jurist who pronounced the judj;ment» it is 
 decisive of this cau.se. It may be conceded 
 that John G. Free was indebted to his co-de- 
 fendants, but why was a judtiment taken for 
 three times the amount? Why was a note 
 given for the precise sum of six thousand 
 seven hundred and fifty-four dollars and 
 thlrty-eisiht cents, but to hold out the ap- 
 pearance of bona fide indebtedness to that 
 particular amount? But, say both the de- 
 fendants, II. B. Rice and John (J. Free, it 
 wa.s partly to secure Rice ajiiiinst "subse- 
 quent indorsements." The judjrment was 
 confessed January. 1849. The existing in- 
 debtedness and liability of Free to the plain- 
 tiffs in the judgment was a.scertained (say 
 they) to be about four thousand seven hun- 
 dred and sixtj-four dollars, thirty-eight cents 
 (.'?47<i4..'!Si. J. G. Five's property was worth 
 about -I^L'OCX)— yet they addetl two thousand 
 dollars to the amount of this lien, "as John 
 G. Free might reijuire sub.seciuent indorse- 
 ments." It is not suggested that any sub- 
 sequent indorsements were ever made. But 
 that is not the inquiry. Can it be supposed 
 that it was In the contemplation of the par- 
 ties to increa.se the indebtedness of John G. 
 Free on the faith of this judgment? On the 
 other hand, is it not apparent, from all the 
 circumstances, that altlmugh .some indelited- 
 
 *409 
 *ness existed, and the defendant, Rice, was 
 under liabilities for J. G. Vn\\ yet, in the 
 hmguage of ChaMcelior Ilari)er. "the judg- 
 ment was mala fide confessed for an extrava- 
 gant amount, with intent to cover all the 
 l»roperty of John (J. Free, and to hinder and 
 defeat other creditors wlio were about to 
 press their demands?" 
 
 My opinion is, that the judgment in favor 
 of H. B. Rice and Allen F. Free must be 
 declared null and void — the original indi'bt- 
 edness of their C(t-defendant, John G. Free, 
 is unaffected. It is only determined that 
 they can take no advantage and derive no 
 security from the judgment wbidi has been 
 mala fide confessed. 
 
 It is, therefore, ordered and dccrcetl, that 
 the judgment of the I6ith January, 1!S4U, be 
 
 .set aside — that the defendant, II. B. Rice, 
 pay into the hands of the Commissioner the 
 sum of seven hundred and seventy-six dollars 
 and sixty-two cents, with interest. il>eing 
 the price at which he re-sold the slave An- 
 thony.) — that the lease of the land and build- 
 ing's lid off by II. B. Rice on :.'d July, 1S4!>, 
 le re-sold by the Commissioner, on a credit 
 until 1st January, l.Su2. secured by bond 
 bearing interest and personal security, and 
 that II. B. Rice account for the rent thereof 
 since lid July, lS4t)— that the slaves iiid off 
 by the defendant, Allen F. Free, be sold by 
 tlie Comnnssioner, on a credit until 1st Jan- 
 uary, lS~y'2. .secured by bond bearing intense 
 personal .security, and a inortgage of the 
 slaves, and that Allen F. Free account for 
 the hire of said slaves since 2d July, ls4;>. 
 It is further ordered and decreed that the 
 aggregate amount of the several sums thus 
 to be realized be paid to the execution cred- 
 itors of the defendant, John (i. Free, accord- 
 ing to their respective legal priority. It is 
 finally ordered that the Commissioner take 
 an account of the amount due by the defend- 
 ants for rent and hire as aforesaid, and 
 that he report thereon; and also that he re- 
 port on the execution debts of the said John 
 G. Free, with the dates thereof, and the 
 amount due on the same — costs to l;e paid by 
 the defendants. 
 
 The defendants, Henry B. Rice and Allen 
 
 *410 
 
 F. Free, moved to *reform the circuit decree 
 — because, under the circumstances of tlie 
 case, the judgment at law, mentioned in the 
 pleadings, ought to be permitted to stand as 
 a security for the amounts really and bona 
 fide due to the siiid defendants respectively. 
 
 I'atter.son. for motion. 
 J. T. Altlricli. contra. 
 
 Dl'NKIX, Ch. delivered the opinion of the 
 Court. 
 
 It is too long and too well settled to be 
 now called in tiuestion, that a debtor has the 
 right to make a preference among his bona 
 tide creditors. Nor is it any violation of the 
 statute 18 KHz. c. f), that tbis preference is 
 gi\en by confession of judgment, as was rul- 
 ed by tbe King's Bench in Holltird v. Ander- 
 son. (5 T. R. 2:551. Nor is the judi-'ment void 
 because confe.s.sed for a larger sum than the 
 amount actually due. Bank of (Jetugia v. 
 lligu'inbottom, ('J IVters, 4S [9 L. Kd. 4GJ(. It 
 has been repeatedly held, too, that a judg- 
 ment, or other security, may Ix' taken for 
 future responsibilities, or future advances. 
 Chancellor Kent expresses the opinion that 
 this doctrine should be taken with the limita- 
 tion that, where a subsetiuent judgment or 
 mortgage inti-rvened, further advances alter 
 that period could not be covered. 
 
 The policy of permitting such preferences, 
 and especially of creating liens 60 uncertain, 
 
 169
 
 »410 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 and, in some sort, ambulatory, has been fre- 
 quently called in question. Some judges 
 have declared that, if the subject were res 
 Integra, a different rule would be adopted. 
 All the cases, however, hold that the trans- 
 action must be marked by good faith, an 
 lionest determination to secure the just rights 
 of a creditor ; and that it be not a mere 
 cloalc to secure the property of the debtor, 
 or to protect it from the claims of his other 
 bona fide creditors. It would be a mockery 
 of justice to hold the transaction valid, be- 
 cause one creditor was secured bj' a scheme, 
 the leading purpose of which was to defeat 
 and defraud all the other creditoi's. The in- 
 quiry in this, and in all similar ca.ses, is 
 as to the true intention of the parties ; and 
 *411 
 
 in solving this in*quiry all the circumstances 
 are to be considered. In itself, it is no fraud 
 to take a jvidgment for a larger amount than 
 is actually due. The amount may not be 
 ascertained, or may not, at the time, be sus- 
 ceptible of accurate statement. But why 
 take the judgment for an amount three times 
 greater than any sum supposed to be due, 
 and with a minuteness of dollars and cents, 
 which holds out the appearance that an ac- 
 count of indebtedness had been taken, and 
 the amount due accurately ascertained and 
 adjusted at that precise sum? AVhy was this 
 delusion continued even to the day of sale of 
 the debtor's property, and no intimation 
 given, either on the record, or otherwise, that 
 the judgment was, to a great extent, fictitious? 
 But it is not proposed to repeat, or enlarge 
 upon, the observations made in the decree. 
 The Court did not doubt tliat something was 
 due by John G. Free to both his co-defend- 
 ants, and that one of the objects of the judg- 
 ment was to secure tliat indebtedness, but 
 justice must be hoodwinked not to perceive 
 that the debtor had otlier and ulterior pur- 
 poses to answer, which formed ji principal 
 consideration for iiis conduct, and to which 
 Iiis co-defendants were necessarily privy. 
 Tile decree of the circuit Court does not 
 impair the original contract of indebtedness, 
 but oidy declares void the security thus un- 
 lawfully obtained. 
 
 The principal, and perhaps the only ground 
 of appeal is that the Chancellor should have 
 permitted the judgment to stand for the 
 amount actually and bona fide due by the 
 debtor, John G. Free. This question has 
 been heretofore vei-y fully considered in our 
 own Courts, and the cases of Miller v. Tol- 
 lison, (Harp. Eq. 145 [14 Am. Dec. 712] ; ) 
 Fryer v. Bryan, (2 Hill Eq. 56,) and I'arker v. 
 Holmes, (2 Hill Eq. L>5,j have definitively set- 
 tled that, when a judgment or other security 
 is successfully impeached for reasons of this 
 character, it cannot be allowed to stand for 
 any purpose prejudicial to the rights of the 
 other creditors. 
 
 It is ordered and decreed that the appeal 
 be dismissed. 
 
 JOHNSTON, DARGAN and ^YARDLAW, 
 
 CC. concurred. 
 Appeal dismissed. 
 
 3 Rich. Eq. *4I2 
 
 *JANE C. DICKINSON v. RICHARD WAY 
 
 and HENRY B. RICE. 
 
 (Columbia. May Term, 1S51.) 
 
 [Executors and Adiiihiistrators <Sx=3l44.] 
 
 Where a judsmeut, confessed for a much 
 linger amouut that is actually due the plaintiff, 
 and intended not only to secure the amovmt 
 due, but, also, to defeat other creditors, is set 
 aside, at the instance of a creditor, for the 
 actual fraud, the whole judgment is set aside 
 so far as creditors are concerned, and the plain- 
 tiff must stand upon the original indebtedness. 
 
 [Ed. Note.— Cited in Garvin v. Garvin, 55 S. 
 C. 371, 33 S. E. 458. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 5S2 ; Dec. Dig. <S=>144.] 
 
 Before Dunkin, Cli., at Barnwell, February, 
 1S51. 
 
 Dunkin, Ch. The complainant is tlie wid- 
 ow and administratrix of Josiah Dickin- 
 son, deceased. In October, 1849, the defend- 
 ant, Richard Way, being indebted to her as 
 administratrix in a considerable amount, con- 
 fessed a judgment thereon, upon which judg- 
 ment execution has been issued, but the com- 
 plainant has been unable to realize any part 
 of the amount due thereon, inasnuicli as the 
 whole of the property of her debtor has been 
 taken to satisfy an execution of the defend- 
 ant, 11. B. Rice ; that the property thus seiz- 
 ed consists of three slaves, several liorses, 
 cattle, provisions, &c. The execution in favor 
 of H. B. Rice was entered on the 11th Feb- 
 ruary, 1848, for the sum of one thousand 
 seven hundred and seventy-six dollars, eiglit 
 cents. The judgment was confessed on two 
 notes, each for the sum of $885.44. One 
 note bears date 14th February, 1848, payable, 
 with interest, one day after date. The other 
 is dated lltli February, 1848, payable, with 
 interest, six monihs after the date thereof. 
 The charge is that this judgment was fraud- 
 ulently confessed, for a much larger amount 
 than was due, and with a view to cover the 
 whole property of the defendant, Way, from 
 his bona fide creditors. The debt to the com- 
 plainant was of some years' standing before 
 slie obtained judgment thereon. Many of the 
 remarks which might be made in this case 
 have been anticiiiated, in the judgment of 
 the Court in the cause of Bowie v. Free & 
 Rice, heard at this Term. Quoting Roljerts, 
 (page 490) it is there said, "though the debt 
 be bona fide due, the judgment quoad other 
 creditors may be mala fide confessed, i. e, 
 
 *413 
 may be confessed with intent to delay, *hin- 
 der and defraud others of their just and law- 
 
 170 
 
 ^=^For other cases see Siuiie lopic auU KEY-NUMBER in all Key-Numbered Digests aud Indexes
 
 DICKINSOX V. WAT 
 
 *41.= 
 
 fill nctimis. and such iutont is to be collected 
 from the circuiiistaiices of each c-ase." The 
 4|uestion is not whether any thinj; was due, 
 liut (as ursed in that case) "whether the act 
 done was a bona tide transaction, or a con- 
 trivan<e to defeat creditors." It is added 
 that the insertion of a false consideration 
 in the deed or in the jnd|i;nient is an indica- 
 tion that the transaetion was, in some dej^ree, 
 cohtrable. 
 
 It appears, from the testimony, that the 
 defendant, Kichard Way, i^* an i;:;norant 
 man. knows little abont bnsiness. and (as 
 the witness said) cannot write. The answer 
 of the defendant, II. li. Rice, adnnts that the 
 judirment of 11th February, 1S4S, was for a 
 much laruer sum than was due. Indeed, it 
 is very dear, from the statement tiled with 
 his answer, that one of the n«>tes, on which 
 the judfiment was confes.sed. to wit, that of 
 the 1-Ith February, 1S4S, included every dol- 
 lar that was at that time between the par- 
 ties. The other note is for exactly the same 
 amount, and is payaiile, with interest, six 
 months after date. The inciuiry is, for what 
 purpose was this note jiiven. and why for 
 this precise amount V The defendants differ 
 very materially in their statements. Rice 
 .says that, at the time of the confession, he 
 ajj;reed to take up a debt of !?.'!()0, due by 
 Way to Edward Hayes, secured by a mort- 
 gage of two nesroes, and that the second 
 note was intended to include this debt, as 
 also AVay's account with him f(»r the current 
 year, (1S4.S.) " and for any further i)ecuniary 
 accommodation the said llicliard Way might 
 require of the defendant (Hicei in the mean 
 time." Richard Way's account of the trans- 
 .•iction is, that at the time of confessing the 
 .pidgment to his co-defendant, he was nnicli 
 emiiarrassed, and owed more tlnin he was 
 worth — that his co-defendant was well in- 
 formed of his embarrassed situation, and, 
 "assuming to act a friendl.v part towards 
 him. suggested the propriety of confessing a 
 judgment for double the amount the defend- 
 ant was due him, assigning for a reason 
 therefor that such an act wimld prevent the 
 other creditors of this defeiulant from suing 
 him. and that therel)y this defendant might 
 
 *414 
 be able to save a con*siderable portion of 
 his propert.v — that, not knowing what to do, 
 he adt>pte(l the suggestion," &c. Rut that his 
 c«Hdefendant afterwards proceeded to pur- 
 chase up outstanding claims against him, «&c. 
 The testimony of Edward Hayes as to the 
 conduct of both the defendants in relation to 
 this mortgage debt, creates a strung doubt 
 whether, at the time of confessing the judg- 
 ment, the defendant, II. B. Rice, had assum- 
 ed to pay this debt to Hayes. It is also 
 very clear that some of the demands now 
 claimed by Rice, were not in existence at the 
 date of the judgment — for instance, the note 
 to Freeman, given l.'4tb Aiiril, 1S4!>. and the 
 note to Kittrell, dated liOth February. l.S4!t. 
 The evidence of Kittrcll in relation to this 
 
 matter is very pregnant. He says that he 
 had a demand against Richard Way. for .$1S0 
 — that, on the ."d July, 1S4S, he had a ci>n- 
 ver.sation with the defendant, II. H. Rice, in 
 relation to the judgment which he held 
 against Richanl Way. Rice said the debt 
 was all just, and lu' did not know how Wa.v 
 could object. The witness offered his claim 
 to Rice for .$ll.'.">. Rice declined it, and wit- 
 ness emidoyed Mr. McKenzie (a member of 
 the bar, since decea.sed.) to set aside this 
 judgment. He enipkiyed him to sue Way 
 for the money, and to put Rice on his oath 
 about the judgnu'Ut. He told him if it had 
 to go to the Court of E(|uit.v. to carry it 
 there. Witness afterwards received a mes- 
 sage from Rice, and bad an interview with 
 him. It was at (Jraham's Turn-Out. where 
 Rice lived. Rice told witness, that if he 
 (witness) and Way could agree about an.v 
 proi»e^t.v of Way, to be taken in payment of 
 his debt, he (Rice) would make it good to 
 him, as he held the eldest judgment. Wit- 
 ness got four head of cattle and ten head of 
 sheep. It seemed to be understood that he 
 (witness) was to be paid if he would take 
 property, and stop the case that he had <li- 
 rected to be brought. Witness wrote to Mr. 
 McKenzie to droj) the suit. Afterwards wit- 
 ness took a receipt from Rice for forty dol- 
 lars, b.v note on Way. dated L'Oth February, 
 1S45). This note now makes part of Rice's 
 demand.s. 
 
 On the. IJlth .Tune. ls41). the defendant, 
 *415 
 Rice, made out a *statement of the amount 
 due by Way to him, on account of Hayes's 
 debt, Kittrell's note, .$44, and Freeman's, as 
 well as Way's account, for the .vear 1S4S, 
 and interest thereon, the whole amounting to 
 .$r)!l.~)..'"»7, ft)r which aggregate sum he took a 
 note from Way of that date, and gave him 
 a receipt. All the circumstances lead to the 
 conclusion that, at the time of the confes- 
 sion of judgment, 11th February. I.s4s. only 
 one note was due, by Way to Rice, anil that 
 the other note was given, and the judgment 
 confessed, on double the amount really due; 
 for the purp()se, as averre<l in Way's answe", 
 of covering all his property, and preventing 
 his other creditors from sueing him. and 
 thereby enabling him to save a portion of his 
 l)ropert.v. Thi.s. at least, was his view. 
 There are many didiculties in adopting the 
 version of II. R. Rice. Why was no writ- 
 ten statement prepared at the time, setting 
 forth the object of the judgment? Why was 
 the second note taken for exactly the amount 
 of the other note, but payable, with interest, 
 six months after date, and judgment con- 
 fessed six months before the note was due? 
 How is the statement now made, b.v Rice, 
 reconcileable with his asseveration to Kittrell, 
 in July, 1S4.S, that the whole amount of the 
 judgment was justly due to him and he did 
 not know how Way could say to the con- 
 trary':' Courts should afford little encourage- 
 ment to contracts such as that alleged by 
 
 171
 
 *415 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 the defendant, H. B. Rice. His co-defendant, 
 embarrassed beyond the means of extrica- 
 tion, confessed a judgment to him. not only 
 for what is due, but for double that amount. 
 "This was done,"' says tlie defendant, Rice, 
 "to include the store account of the defend- 
 ant. Way, for the then current year, which 
 had just commenced, (11th Februai'y, 1S4.S.) 
 and for any furtlier pecuniary accommoda- 
 tion the said Richard Way miglit require of 
 his co-defendant in the mean time." And all 
 this was to depend on an understanding be- 
 tween the parties, was to be kept to tliem- 
 selves, and the judgment, for a fictitious 
 amount, was to stand as a security to the 
 plaintiff, and a scai'ecrow to tlie otlier credi- 
 tors of the defendant. The debt to the com- 
 plainant, Jane C. Dicljinson, was due long 
 
 *416 
 before the judgment to Rice ; *so was tlie 
 debt to Kittrell. Rice's own demands, in 
 February, 1S4S, amounted to more than half 
 the value of the defendant. Way's, property. 
 
 If, under these circumstances, a judgment 
 of thife character could be sustained, it would 
 afford an irresistible inducement to the insol- 
 vent debtor to avail himself of such sugges- 
 tions as Way says were made to him ; and, 
 to a creditor in Rice's situation, not only to 
 obtain security for his debt, which other 
 creditors had not, but to keep his debtor in 
 his power, and put other creditors at defi- 
 ance. 
 
 Good faith and public policy unite in con- 
 demning agreements of this character. 
 
 But the intrinsic evidence, arising from the 
 papers themselves, not less than the parol 
 testimony, confirm the answer of Way, to 
 wit, that no more was due to Rice than the 
 amount of the first note, and that the second 
 note was executed, and the judgment confess- 
 ed, for the aggregate amount of both notes, 
 for the purpose of covering the whole prop- 
 erty of Way, and thereby enabling him to 
 hinder, delay and defeat his l)ona fide credi- 
 tors. 
 
 The sheriff testified that, under the several 
 executions in his office, of which the defend- 
 ant. Rice, held the eldest he had sold out the 
 defendant, Richard Way, in December, 1849, 
 and January, 1850; that the amount of the 
 sales was $1592. Part of the property sold 
 was the two slaves mortgaged to Edmund 
 Hayes. 
 
 The Court is of opinion that the judgment 
 of the 11th February, 1848, nuist be declared 
 void ; but that the defendant. Rice, is en- 
 titled, inider Hayes's mortgage, to receive the 
 amount due on the note, to secure which the 
 same was given. 
 
 It is ordered and decreed, that the judg- 
 ment of the 11th February, 1848, be set 
 aside; that, after payment to the defendant, 
 
 172 
 
 Henry B. Rice, of the sum of three hundred 
 dollars, with interest from the 19th June, 
 1846 the surplus of the sales made by the 
 sheriff be paid over by him to the execution 
 creditors of Richard Way, according to their 
 
 *417 
 resi)ective legal *priority. Costs of these 
 proceedings to be paid by the defendants. 
 
 The defendant, Henry B. Rice, appealed, 
 and submitted that the decree of the circuit 
 Court ought to be reformed, so as to permit 
 the judgment at law, mentioned in the plead- 
 ings, to stand as a security for the amount 
 really and bona fide due to the said defend- 
 ant, from his co-defendant, Richard Way. 
 
 Patterson, for appellant. 
 Owens, contra. 
 
 DUNKIX, Ch., delivered the opinion of the 
 Court. 
 
 The principles involved in this case are 
 precisely the same as those discussed in 
 Bowie V. Free and Rice, ante, p. 403, heard at 
 these sittings. The evidence is still more di- 
 rect and abundant; and this Court is well 
 satisfied with the conclusions both (»'■ law 
 and fact. The only ground of app al pre- 
 sented by the brief is that considered and 
 disposed of in Bowie v. Free. But it has 
 been suggested in this Court that the proper- 
 ty of the defendant, Way, is more than suf- 
 ficient to satisfy the complainant and his 
 other judgment creditors, and that the judg- 
 ment of his co-defendant, H. B. Rice, should 
 not be absolutely set aside, but that he should 
 have the advantage of it after the other judg- 
 ments have been satisfied. One of the 
 grounds, on which the judgment of Rice was 
 set aside, was its tendency to prevent the 
 otlier creditors of Way, by simple contract or 
 otherwise, from pressing their demands to 
 judgment, and so far as creditors are con- 
 cerned, he cannot be permitted to derive any 
 advantage from his lien, but must stand on 
 the original indebtedness and come in rate- 
 ably with the other existing creditors of 
 Way. But, as between Way and Rice, the 
 validity of the judgment was not put in issue 
 by the pleadings, nor was any thing intend- 
 ed to be concluded. These remarks are made 
 in deference to the suggestions of counsel, 
 
 *418 
 and to prevent misaiiprehension ; but *none 
 of the facts are before us, either as to a sup- 
 posed surplus, or the existence of any other 
 than judgment creditoi-s. 
 
 It is ordered and decreed that the appeal 
 be dismissed. 
 
 JOHNSTON, DARGAN and WARDLAW, 
 CC, concurred. 
 Appeal dismissed.
 
 COUNTS V. CLARKE 
 
 *420 
 
 3 Rich. Eq. 418 
 
 A. J. COrXTS V. JOSKI'II CI.AKKK. 
 
 (Columl)iii. May Tt'iin. IS.")!.) 
 
 {E qui til ®=>n4u.l 
 
 Wiiattvfr may be tlio impn-ssiijiis of the 
 Court as to tlip niorits of the case, if the an- 
 swer is (•■mtraclicted by hut one witness, the bill 
 must Im" dismissed. 
 
 IKd. Note.— For other cases, .see E(|uity, Cent. 
 Diu:. S ~--- l'e<-. I»ij:. C=3:'A7).] 
 
 I{»'f(»re Duiikin. Ch. at UaniwcU. February, 
 ISol. 
 
 Duiikin. Ch. This is n petition to coiuikjI 
 the specific perfornuince of an a;:reenient for 
 the sale of three lots in the town of Clinton, 
 fcn-nierl.v Klaekville. It is clmr^'ed that, on 
 the Ulid June. 184S, defendant aixreed to .sell 
 the three lots to the plaintiff for one hundred 
 and twenty-tive dollars. That the defendant 
 drew a written obligation to that effect, 
 which he placet! in the hands of Luder F. 
 Beliliug, to be delivered to the plaintiff 
 wiienever he should pay him for the defend- 
 ant the sum of tifty dollars. The plaintiff 
 and Behling both lived in Ulackville. The 
 defendant is a carpenter; was employed on 
 the Hail Koad, and resided at the time, some 
 three miles from (Jraniteville. — I'laintiff al- 
 leges that he took possession of the lots, 
 put a fence around them, and dug a well. 
 That the improvements thus made are worth 
 forty dollars. That in August or September, 
 1S49. plaintiff informed Behling that he was 
 ready to pay the purchase money and re- 
 ceive a title for the lots, and reiiuested him 
 to write to defendant to come t<) lilackville, 
 receive the money, and make him titles for 
 the lots ; but that defendant refused to 
 comply. The answer of the defendant ad- 
 mits, that he agreed to sell two (not three) 
 lots to plaintiff for $125, the plaintiff pay- 
 ing $50 in cash, and giving his note for $75. 
 That plaintiff, not being able at the time to 
 
 *419 
 pay the cash, defendant agreed to give *him 
 a few days to do so. and, as defendant was 
 leaving Blackville. he placed in the hands 
 of L. F. Behling. an agreement to make titles 
 to plaintiff on ivceiving his n()te. for $75 — 
 that this agreement was to be delivered to 
 plaintiff' on payment of the $50: that this pa- 
 per was signed only by himself; was placed 
 in the hands of defendant's auent, and was 
 never in the i)ossession of the plaintiff'; that 
 the agreement with him was altogether in 
 parol, and defendant relies on the statute of 
 frauds; that some three months afterwards, 
 having ascertain»'d that the plaintiff" had not 
 complied, defendant withdrew the papt'r from 
 Behling's possession, and eonsideri'd the mat- 
 ter at an end: that plaintiff was not then in 
 possession of the lots, and if he ever took pos- 
 session, it was not with the consent of de- 
 fendant, or un(U'r any contract, but as a tres- 
 passer; that defendant never heard any 
 thing more on the suli.ject. until eiglit or 
 nine months after he had withdrawn the pa- 
 
 per, and when the lots had risen in value; 
 that the plaintiff then wished to renew the 
 contract, but avowed his inability to pay 
 any money; that it was not until eighteen 
 m<»nths after he had withdrawn the paper 
 that any money was offered to him. and after 
 the lots had greatl.v risen in value, and that 
 he refused then to renew the agreement. 
 The witness. Luder F. Behling, proves the 
 contract as alh'ged, and that a note or agree- 
 ment to make titles was left by ih'fendant 
 with the witness, to be delivered to the plain- 
 tiff on payment of .f50. This was in June, 
 1S4S. That it remained in witne.ss's po.sses- 
 sion until April or May, 1S40; that defend- 
 ant then came to Clinton, asked to see the 
 paper, read it and kept it. — That the plain- 
 tiff' let the witness have money to pay for the 
 lots, but whether this was before or after he 
 had given up the agreement to the defendant, 
 he cannot say; that two or three months 
 after the agreement, plaintiff fenced in the 
 lots and dug a well ; he has put thirty or 
 forty dollars worth of work on them. 
 
 It appeared from the evidence of this wit- 
 ness, and others, that the real estate in Clin- 
 ton had risen in value one hundred per cent, 
 within the last two years. These lots are 
 now worth .$250 to $300 ; the annual rent is 
 
 *420 
 worth $20. The evidence is all in *writing, 
 and has only been partially incori)orated into 
 the statement. 
 
 It is difficult to maintain on this testimony, 
 that there was any such written agreement 
 between the jiarties as is recpiired by the 
 provisions of the statute. Assuming the con- 
 struction insisted on by the plaintiff, there 
 was a parol agreement on the 22d .lune, 184S, 
 that on the payment of tifty dollars within 
 a reasonable time, he was to receive the writ- 
 ten engagement of the defendant to make 
 titles, on payment of the balance. Until pay- 
 ment of the lifty d()llars all was in parol. 
 After the tender of the lifty doUar.s, and the 
 refusal of the defendant to give his obliga- 
 tion to make titles, there was the breach of 
 a parol ct)ntract — no more. Suppose the de- 
 fendant had agreed to make him a title on 
 payment of $125, and in order to be ready 
 had preiiared and executed a conveyance, 
 which he put in his desk, and three or si.x 
 months afterwards, tinding that the plaintiff' 
 had not called to comply, he took out the 
 deed and put it in the tire, ("ould the plain- 
 tiff', on afterwards tendering the money, al- 
 lege that there was any written agreement, 
 t)r give any strength to his claim in conse- 
 (pience of the execution of the conveyance".' 
 But it is scarcely urged by the plaintiff that 
 the evidence establishes any concluded writ- 
 ten agreement between the parties. It is 
 said, however, that there are acts of part 
 performance which take the case out of the 
 statute. The retpiisites which will authorize 
 the interposition of a Court of Equity, to 
 
 ©=3For other cases see same topic aud KEY-NUMBEH iu all Key-Numbered Uigesls aud Inde.ves 
 
 173
 
 •420 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 compel the performance of a parol contract 
 for the sale of lands, are enumerated in 
 Thomson v. Scott, (1 McC. Ch. 38). It is 
 there said, that when the plaintiff relies on 
 part execution, he must show that the part 
 execution was by mutual consent. If the pur- 
 chaser took possession, that he was put in 
 possession by the vendor, or that he went 
 in by his consent. If this is not shown, that 
 then his entry partakes more of the nature 
 of a trespass than a part execution of the 
 contract. The party seeking the perform- 
 ance of the contract must also make out. by 
 
 lutely necessary for Courts of Equity, in those 
 cases, to make a stand and not carry tlu> 
 
 *422 
 decisions further. The im*proTements made 
 by the plaintiff are worth thirty or forty 
 dollars, and the annual rent of the lots is 
 worth twenty dollars ; any injury, there- 
 fore, done to the plaintiff in conse(iuence of 
 taking possession, not only "admits easily 
 of compensation," but the remedy is. per- 
 haps, in his own hands. 
 
 It is ordered and decreed that the petition 
 be dismissed, each party to pay his own 
 
 proof, that he has done all that good faith re- | costs. 
 quired of him. The appeal to this Court is to ~' 
 make an exception to the statute, and can 
 
 *421 
 *only be successfully invoked in favor of 
 good faith, as well as diligence, and to pre- 
 vent fraud. 
 
 The evidence leaves great doubt in some 
 important points. The agreement was made 
 in June, 184S. The fifty dollars was to be 
 paid within a reasonal)le time, says the 
 plaintiff. This payment seems to have been 
 intended as well to bind the bargain, as to 
 secure the defendant in the balance. 
 
 It is rather apparent that, in April or 
 May of the following year, the plaintiff' had 
 not paid the fifty dollars, or offered to do so. 
 If he had, Behling would have delivered 
 him the note or obligation to make titles, for 
 up to that time it was still in his i)Ossession 
 for that purpose. But the plaintiff does not 
 allege or aver that he offered to comply un- 
 til August or September. 1849. and it is very 
 certain, from Behling's testimony, that four 
 months before that time, the defendant had 
 withdrawn the paper from his possession. 
 In the interim, since the contract of June, 
 
 1848, real estate had risen greatly in value. 
 Then as to the possession: Clarke says there 
 was no contract that the plaintiff should 
 take possession ; that if taken, it was not 
 with his consent, and that the plaintiff was 
 not in possession, to his knowledge, when 
 he withdrew the paper in April or May, 
 
 1849. It is not easy to infer from any part of 
 the testimony that the plaintiff took posses- 
 sion or was in possession, with the consent 
 or even with the privity of the defendant. 
 Behling says that, "defendant knew plain- 
 tiff was in possession when he refused to de- 
 liver up the paper, and long before." But 
 this is very indefinite. "It is necessary," 
 says Mr. Sugden, "that the act (of taking 
 possession) should unequivocally refer to, 
 and result from the agreement, and such that 
 the party would suffer an injury amounting 
 to fraud, by the refusal to execute that 
 agreement." — (Sugden, 118). He then shows 
 that, if the act be such as easily admits of 
 compensation without executing the agree- 
 ment, the provisions of the statute must be 
 maintained, and refers to 2 Sch. & Lef. 6, 
 in which Lord Redesdale thought it was abso- 
 
 The petitioner appealed, on the following 
 grounds. 
 
 1. Because there was sufficient writing, and 
 sufficient evidence of it, to take the case out 
 of the statiite of frauds. 
 
 2. Because there was sufficient performance 
 on the part of the plaintiff, in taking posses- 
 sion, (by at least the implied consent of 
 the defendant.) and offering to pay the mon- 
 ey, even before demand made, to autliorize 
 the Court to compel a specific performance 
 of the contract on the part of the defendant. 
 
 Owens, for appellant. 
 Bellinger, contra. 
 
 JOHNSTON, Ch. delivered the opinion of 
 the Court. 
 
 There was but one witness to contradict 
 the answer, in any of the particulars to 
 which it relates: — either as to the parol 
 agreement, or as to the terms of the written 
 agreement, — or the conditions upon which 
 it was placed in the hands of Behling : or 
 as to the fact of the possession being taken 
 under the agreement (whetlier considered as* 
 parol or written). The rule of evidence in 
 this Court, therefore, necessarily compelled 
 it to dismiss the bill : whatever might lie 
 its impressions as to the merits of the case. 
 
 It is ordei'ed that the decree be affirmed 
 and the appeal dismissed. 
 
 DFNKIN, Ch. concurred. 
 Appeal disniissed. 
 
 3 Rich. Eq, *423 
 ♦ISAAC KINARD v. STEPHEN HIERS. 
 
 (Columbia. May Term, 18.51.) 
 
 [Frauds, ^tatiiie of ©=^119.] 
 
 Plaintiff having an equitable interest in 
 land, of which he wa.s iu possession, and which 
 was about to be sold at a judicial sale, agreed, 
 by parol, with defendant, that he, defendant, 
 should purchase it for the benefit of plaintiff's 
 wife and children : defendant stated the agree- 
 ment to several persons, and his statements 
 were calculated to stifle competition among bid- 
 ders, and actually did prevent one person from 
 attending the sale and bidding: defendant pur- 
 chased the land at aliout half its value, and 
 then refused to comply with his agreeor'nt : 
 
 174 
 
 <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 KIXARD V. IIIERS 
 
 *425 
 
 Uchl. that defendant's conduct was frauduleut; t 
 and ho was not allowed to retain the land. I 
 
 |Kd. Note.— (^"ited in Lee v. Lee. 11 Uicli. K<i. i 
 58;?; Conev v. Tinimons, Itj S. ('. .'{s,"); Lamar 
 V. Wright, ■.•51 S. C. 71. T.'i. 9 S. K. VM\ Ja- 
 .•(.l)s V. Mutual Ins. Co.. 56 S. C. 501, 35 S. 1 
 E. lilJl. I 
 
 For other cases, see Frjuids, Statute of, Cent. 
 Dig. S 1270; Dec. Dig. (©=»11!>.1 
 
 Before Duukiu, Ch. at llaiinvcll, Fchni- 
 ary, 1851. 
 
 Dunkin, Ch. In 1S4:], a tract of land, l.e- 
 lon.ixiiii,' to the ooniplaiiiaiit. and containing 
 aliout tlnve hundred acres, was sold b.v the 
 >sheriff. and hid off h.v James I'attersoii. Esq. ! 
 for sixty dollars. It is alleged that Patter- 
 son took and held the title under an aj^ree- ! 
 nient. that the complainant ''should have the • 
 rifiht to redeem on the payment of the i)ur- j 
 <hase money and interest."' The complain- 1 
 ant retained po.ssession of the prenuses hut 
 the sheriff's title was made to James Patter- 
 son. In January. 184(5, James I'atterson 
 conveyed the premises to Georjie Kinard. the 
 hrother of complainant, for seventy-nine dol- 
 lars sixty cents, which seems to have heen 
 the amount paid hy James Patterson in 184;}, 
 includinj; the interest and exjtenses. The 
 testimony is very full and satisfactory, that 
 (Jeorse Kinard took the conveyance upon the 
 a.L'reement that, when the complainant paid 
 him the amount, with interest, he. George 
 Kinard. was to make titles to the wife 
 and children of the comi)lainant. George 
 Kinard died hefore the money was paid. 
 .Vdarn Kinard and Hansford Kinard were 
 the two sons of George Kinard. and ad- 
 nnnistered on his estate. They pnn-ed the 
 repeated acknowledgments of their father as 
 to the agreement ; and. after his decease, 
 they consulted with A. P. Aldrich. Esq. as to 
 the mode hy which they could carry out the 
 agreement between their father and uncle. 
 He advised that the land should lie sold by 
 the ordinary, and he bid oft" for the amount 
 paid by George Kinard. with interest and 
 
 *424 
 the expenses of sale. The land was *ac- 
 cordingly sold under the order of the ordi- 
 nary, on the 7th August. 1848. Mr. Aldrich 
 testilies that, the ordinary being sick, he 
 conducted the sale for him. A calculation 
 was made of the amounts due and the ex- 
 I'-enses, and the administrators were advised 
 to run the land to a few dollars over the 
 amount. 
 
 The land was set down by the auctioneer 
 to the complainant; but when the return 
 was made to witness, tlu' land was set down 
 to the defendant, Iliers. All the paities 
 were present — rhe adnunistrators, I. Kinard 
 and Hiers. The nnitter was freely talked 
 over, and they all aiipearcd to have the 
 .same general understanding as relati'd by 
 the two Kinards, who were sworn as wit- 
 nesses, and were the administrators. One 
 of these witnesses. Adam Kinard. say.s. "the 
 land was ordered to be sold by the ordinary, 
 
 for i)artition, and, when witness was coming 
 up to the sale, the defendant. Steidien Iliers. 
 riding with him. told him there was an un- 
 derstanding between him. Hiers. and the 
 complain.mt. ft)r Hiers to bid off the land: 
 but Hiers told witness not to let the land go 
 lor h'ss than the annamt due to George Kin- 
 ard. That the bargain was, that Stephen 
 Hiers was to bid oft" the land for Isaac Kin- 
 ard, and that if Isaac Kinard paid the 
 bid and expenses of sale and interest, by 
 the first of January. 1850. he, Hiers, was 
 to settle the land on Isaac Kinard's wife 
 and children; and, if he did not, the 
 land was to be Hiers's." The amount 
 dut'. with interest and exi>enses of sale, was 
 about -Sllo. Iliers bid oft the land at .$110. 
 Isaac Kinard. comi)lainant. was living on the 
 land at the death of (ieorge Kinard. and 
 at the time of the sale by the ordinary. "It 
 was generally known (says the witness) in 
 the neighboi'bood how the land was held 
 by (Jeorge Kiinird for his brother Isaac, ami 
 that the children and widow of George Kin- 
 ard desired that Isaac Kinard should have 
 the benefit of said agreement. He (witness) 
 said the land was worth more than it 
 brought at the ordinary"s .sale." Hansford 
 Kinard was in the company, riding \\y\ to 
 attend the ordinary's sale, and confirms, in 
 ever.v particular, his brother's statement as 
 to what passed, and especially as to the 
 agreement between the defendant and coni- 
 
 *425 
 plainant. This witness said he *was not 
 well acciuainted with the land— that at the 
 time of the sale, other men said they would 
 have given more for the land if it was not 
 that Iliers was going to befriend Kinard. 
 
 Michael Hiers proved, among other things. 
 that the agreement between the comidainant 
 and defendant was generally luiderstood in 
 the neighborhood at the time of the sale — 
 that the witness intended to be a bidder at 
 the sale, and would have given nn)re than the 
 land brought ; but in consetiuence of the un- 
 derstanding betwi'en Hiers and I. Kinaril. 
 he did not attend the sale: as Kinard was a 
 poor man, he did not wish to interfere witli 
 him. 
 
 It was fully proved, and. indeed, is adnnt- 
 ted in the answer, that, on the first Saturday 
 of January. 184J>, the complainant tendered 
 to the defendant the full annanit due under 
 the agreenu'ut. and denninded a title, or a 
 bond for titles, which was refu.sed. 
 
 The principle which sc-ems applicable to 
 this case is stated in McDonald v. May. (1 
 Kidi. Eq. 98.) "If purchases be nnide by one 
 representing himself to be acting under an 
 agreement with a debtor, and for his benefit, 
 when, in fact, there was no agreement, the 
 I advantages thus obtained shall be taken 
 ' away from him on the ground of fraud." 
 That was a case in which the alleged agree- 
 ment related to lands, and the agreement. 
 as well as the evidence of it, was in parol, 
 
 175
 
 *425 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 which the Court deemed inadmissible. The 
 principle is again noticed in Schmidt v. 
 Gatewood, (2 Rich. Eq. 177.) "A party who 
 enables himself to purchase at an under rate, 
 by representing that he is buying for an- 
 other, is liable to have his purchase set 
 aside for fraud." If there be no agreement, 
 that "serves only to enhance the fraud ; .such 
 cases steer entirely clear of the statute of 
 frauds. — The evidence of the purchaser's rep- 
 resentations is received, not for the purpose 
 of substantiating the supposed agreement, 
 but for the purpose of showing the means 
 by which he effected his fraudulent design. 
 and, when received, it is employed, not for 
 the purpose of enforcing the contract, but for 
 that of setting it aside."' 
 *426 
 
 *The land of Isaac Kinard was evidently 
 worth at least double the amount at which it 
 was bid off by the defendant. It is eipuilly 
 clear that he stated to several persons, and 
 that such was the general understanding, 
 that he was acting for the complainant, and 
 with a view to befriend him, and, in conse- 
 quence of this understanding, one person in 
 particular, who wonld have bid more for 
 the land, was prevented from attending the 
 sale, "because he did not wish to interfere 
 with the complainant, who was a poor man." 
 If, then, there was in fact (as insisted by the 
 defendant) no agreement or understanding 
 that he was bidding for anybody but himself, 
 he was guilty of a fraudulent misrepresenta- 
 tion to the several witnesses who testified on 
 the subject. It is, therefore, ordered and 
 decreed, that the premises described in the 
 pleadings, be sold by the Commissioner, on 
 a credit until 1st January next, secured by 
 bond bearing interest, with personal security, 
 and a mortgage of the premises — that the 
 defendant account for the rent of the premis- 
 es since tirst Saturday in January, 1849 — and 
 tha.t after deducting this sum from the 
 amount of his bid, $116, with interest from 
 7th August, 1848, the difference be paid to 
 him from the sales to be made by the Com- 
 missioner, and that the surplus of said sales 
 be paid over to the complainant — costs to be 
 paid by the defendant. 
 
 The defendant appealed, on the following 
 grounds. 
 
 1. Because, if there was fraud in the con- 
 duct of tne defendant, it arose after the sale 
 of the land by the ordinary, and existed in 
 the refusal of the defendant to perform his 
 alleged contract. 
 
 2. Because, this being a judicial sale for 
 partition, the proceedings cannot be set aside, 
 unless for fraud in procuring it, or in the 
 manner in which it was conducted. 
 
 3. Because the supposed agreement related 
 to lands, and parol evidence of a promise 
 to purchase and re-convey should not have 
 been received, and that complainant had no 
 interest whatever in the land at the time of 
 the sale by the ordinary. 
 
 176 
 
 4. Because there was no promise prcvud 
 to purchase and reconvey the land to the 
 
 *427 
 plaintiff, but the promise or agreement *was 
 (as proved) that the defendant, upon certain 
 conditions, would settle the land on complain- 
 ant's wife and children. There was no proof 
 of any demand to comply with this agree- 
 ment ; but, on the contrary, it is in proof tliat 
 Kinard desired the laud conveyed to him, 
 in order that he might make a speculation by 
 conveying it to Chitty. 
 
 5. Because Kinard had no authority to 
 bring this suit alone, for his wife and chil- 
 dren were interested and should have been 
 parties ; whereas his Honor has ordered the 
 land sold, and the proceeds paid to complain- 
 ant. 
 
 6. Because his Honor has ordered the de- 
 fendant to account for the rent of the land 
 since the first Saturday in January. 1849; 
 whereas, it appears by the pleadings and 
 proof, that the defendant has never been in 
 possession of the land, but has been kept out, 
 and the same since the sale has remained and 
 the use thereof has accrued to the complain- 
 ant and his vendor, Chitty, who is now in 
 possession. 
 
 Owens, for appellant. 
 Patterson, contra. 
 
 WARDLAW, Ch. delivered the opinion of 
 
 the Court. 
 
 The (luestion in this case is, whether the 
 defendant shall avail himself of the statute 
 of frauds to protect his legal title to a tract 
 of land, in which the plaintiff had an equi- 
 table interest, where defendant acquired his 
 title, by purchase at a judicial sale, for half 
 of the value of the land, upon his represen- 
 tations calculated to stitie competition among 
 bidders, and actually preventing the com- 
 petition of one bidder, that he was buying 
 for the benefit of the plaintiff. In the con- 
 struction of the statute of frauds. Courts of 
 Equity have adopted, as a general principle, 
 that, as the statute is designed as a pro- 
 tection against fraud, it shall not be set up as. 
 a protection or support of fraud. 1 Story 
 Eq. § 330. These Courts will not execute, 
 specifically, contracts concerning lands which 
 are not manifested in writing as reipiired by 
 the statute ; but they will cancel conveyances, 
 obtained by fraudulent misrepresentations in 
 
 *428 
 parol, or impose upon *the legal owners the- 
 character of trustees. The doctrine on this 
 topic is expi'essed with force and discrimina- 
 tion in McDonald v. May, (1 Rich. E(p 95.) 
 In the circuit decree of the Chancellor in that 
 case, it is said: — "The statute of frauds, it 
 appears to me, has no application here. This 
 branch of the case does not proceed upon the 
 contract, — does not look to an execution of 
 the contract,— but founds the remedy upon a 
 fraud, by the practice of which the purcliaser
 
 KINARD V. IIIERS 
 
 '430 
 
 obtained possession of the plaintiff'.s iirop- 
 erty. Can it admit of a dt)iilit that, if a bid- 
 der at slieriff's sale, either of real ttr itcrsoiial 
 property, represents that he lias eontraeted 
 to purchase in the property for the delitor's 
 benetit, when, in fact, there never was such a 
 contract, and in consequence becomes the pur- 
 chaser, he shall not be allowed to retain the 
 advantage he has thus unjustly obtained V It 
 seems to follow that all the iiurchast-s l»y the 
 purchaser here, must be deemed liable to a 
 trust in his hands. For althou}.'h it appears 
 that no proof can be made that his represen- 
 tations drove off any particular competitor, 
 and it is proved that the majority persisted 
 in bidding, and made the property bring a 
 pretty full price, proof of actual injury is 
 not necessary when actual fraud is establish- 
 ed." The Court of Appeals, in the same case, 
 say: "We are satisfied with the view taken 
 by the Chancellor, that, if purdiases be made 
 by one representing himself to be acting un- 
 der an agreement with a debtor, and for his 
 benetit, when, in fact, there was no agree- 
 ment, the advantages thus obtained should be 
 taken away from him on the grounds of 
 fraud." Again, in Schmidt v. (Jatewood. 
 (2 Rich. Eq. lOL'.t the doctrine is reiterated, 
 with the additional remark, that where com- 
 petition is fraudulently destroyed or reduced, 
 it matters not whether, in fact, there was 
 an agreement or not for the b<Mietit of the 
 debtor. 
 
 In Meador v. Jackson, (MS. Col. May. 1S.37.) 
 the conveyance of a purchaser was set aside, 
 wlio had bought lands of the defendant in 
 execution at sheriff's sale, at a price much 
 under their value, on the grounds, that the 
 purchaser had urged the sheriff to make the 
 sale, — and, by his assurances that he was 
 
 ♦429 
 ♦buying for the benefit of the defendant in 
 execution, liad overcome the reluctance of 
 the sheriff to sell und(>r the circumstances 
 of the case. — and had thus been enabled to 
 buy at a great sacrifice. 
 
 The case before lis seems to be completely 
 within the scope of the principles announced 
 in the cases cited. 
 
 It is argued that the whole fraud of the 
 defendant in this case, consists in the re- 
 fusal to execute a contract of which the evi- 
 dence required hy the statute is not exhibit- 
 ed. I cannot perceive why fraud may not 
 consist in the unconscientious employment of 
 a statute to protect one from fulfilling his 
 agreement. If a son prevent a father fiom 
 making a devise to another, by verbal assur- 
 ances that the object of bounty shall receive 
 without the devise all the benefit intended 
 by the testator, the son shall not be allowed 
 to reap any reward from procuring his fa- 
 ther to onnt the requirements of the statute. 
 If May and Jackson, in the cases quoted 
 above, had fulfilled their contracts for the 
 benefit of the debtors, their conduct would 
 never have Itecome the subject of inve-stiga- 
 
 3 Ku II. Eli. —12 
 
 tion in court ; but as they attempted to ac- 
 (piire advantage to themselves, from ju-ofes- 
 sions of benevolence to the debtors in the 
 first instance, cajoling others from the genu- 
 ine liberality of liuying for the full price, 
 they were ousted of the profits of their de- 
 ceitful sdiemes. 
 
 It is objected that the plaint itT here did 
 not have the legal title of the lands purchas- 
 ed by defendant ; and that the heirs of plain- 
 tiff's brother, (Jeorg* Kinard. are the i»ers ms 
 really defrauded, and yet are not parties to 
 the suit. No objection for lack of parties is 
 made by the pleadings, and the Court can 
 hardly be expected sua sponte to dcnnir for 
 the exemption of perpetrators of fraud. And 
 the plaintiff, although not the legal owner, is 
 in possession of the lands, holding them sub- 
 ject to the lien of a debt charged upon them 
 for the purchase money. He is in the nature 
 of a mortgagor in possession. 
 
 Whether the wife and children of plaintift". 
 in a contest with him, may not maintain, 
 successfully, that they are the real benefi- 
 ciarii's whom defendant has attempted to dc- 
 
 *430 
 fraud, is a question *that may arise hereafter 
 when fraud is fixed upon the dt'feiidaut by 
 the decree of this Court. It is not for him 
 to insist now upon technical defects that he 
 has waived by the course of his pleading. 
 
 Whether. the plaintiff may not be a trustee 
 for his wife and children to the extent of his 
 recovery in this case, will be best settled in 
 a suit between the father and his family. 
 
 The circuit Cliancelhu", in re<i 'I'ing de- 
 fendant to account for the profits of the land, 
 overlooked the fact that plaintiff had re- 
 mained, ever since the purchast^ by defend- 
 ant, in possession of the land and in receipt 
 of the profits. The decretal order in this re- 
 spect is rescinded; in all other parti<'ulars. 
 it is ordered that the appeal be disnussed 
 and the decree be afliriued. 
 
 DT'NKIX and DAKGAN. CC. concurred. 
 
 JOIIN8TU\, Ch. I cannot concur in the 
 decree. 
 
 If the defendant had comitiied with his 
 agreement, it would be impossible to attrib- 
 ute a particle of fraud to him. His only 
 fraud, therefore, consists in his non-i)erform- 
 ance of his undertaking: and there is no 
 more reason to take this contract out of the 
 statute of frauds than any other i)arol con- 
 tract relating to land. If frau<l, cimsisting 
 in the mere non-performance of an agree- 
 ment, or the injury resulting from it, be suf- 
 ficient to take it out of the statute, every 
 case of non-performance is taken out of it, 
 and the statute is a nullity. 
 
 I feel very sure that this case does not 
 fall within the principle .stated in McI>onald 
 V. May and .Schmidt v. (Jatewood. The prin- 
 ciple there stated is, that a fraudulent rep- 
 resentation made at a sale of land, by which 
 
 177
 
 *430 
 
 3 EICHARDSON'S EQUITY REPORTS 
 
 the purchaser enables himself to obtain the 
 land at an under-value, to the injury of its 
 owner, is good ground for setting the sale 
 aside: and, then, the purchaser must be di- 
 rected to deliver up his deed, or re-convey 
 the property, — not by way of executing an 
 agreement, but by way of restoring the prop- 
 erty to the condition it was in before the 
 fraudulent sale. 
 
 If we apply that principle here, we shall 
 *431 
 simply vacate the *sale: and how would 
 that benefit the plaintiff? What right has 
 he to a conveyance? 
 
 It is singular, it seems to me, to set aside 
 the sale, in a proceeding to which the legal 
 owners, the heirs of George Kinard, are no 
 parties, and in the absence of any complaint 
 on their part. And I am of opinion that it is 
 equally singular to assume in the absence of 
 these parties, that, if the sale were set aside, 
 and the defendant ordered to re-convey to 
 them, — they would be bound to transfer the 
 title to the plaintiff. Resolved into its ele- 
 ments, the decree proceeds upon these princi- 
 ples ; and not being prepared to go that 
 length, I cannot concur in it. 
 
 It is a mistake, also, to assume that the 
 sale in this case was fraudulent. The sale 
 was fair, and no complaint is made that it 
 was otherwise. How, then, does the princi- 
 ple of ^McDonald v. May apply: in which the 
 very gist of the case was that, independently 
 of all agreements, the sale was fraudulent? 
 
 Decree modified. 
 
 3 Rich. Eq. 431 
 
 R. W. BROUGHTON and Others v. ROBERT 
 TELFER and E. WATERMAN. 
 
 (Columbia. May Term, 1S51.) 
 
 [Evidence <©=^370.] 
 
 Where plaintift' in his bill alleges the execu- 
 tion and delivery of a deed, under which de- 
 fendant claims, and calls for its production, 
 defendant, up<«u his producing it at the trial, 
 cannot be required to prove its exeeutiou aud 
 delivery. 
 
 [Ed. Note. — For other cases, see Evidence, 
 Cent. Dig. § 1574 ; Dec Dig. <S=^;370.J 
 
 [Deeds ©=351.] 
 
 Where one by his will recognizes and con- 
 firms a deed he had previously made, he es- 
 tablishes the seahng and delivery of it against 
 all who claim as volunteers under him. 
 
 [Ed. Note. — Cited in Carrigan v. Byrd, 23 
 S. C. 91. 
 
 For other cases, see Deeds, Cent. Dig. § 97 ; 
 Dec. Dig. <S=^51.1 
 
 [Slaves <S=22.1 
 
 A conveyance by deed, prior to the Act of 
 1811, of slaves in trust to allow the slaves to 
 be practically free, is valid: — the trustee holds 
 the slaves practically discharged from the trusts 
 whether they be legal or illegal. 
 
 [Ed. Note.— Cited in Ford v. Dangerfield, 8 
 Rich. Eq. 106. 
 
 For other cases, see Slaves, Cent. Dig. § 94 ; 
 Dec. Dig. <g=>22.| 
 
 [Glares <©=37; Trusts <S==>153.1 
 
 Where a party executed a conveyance of 
 slaves to trustees, for the benefit of the slaves 
 themselves, and died, in 1839, eight years after 
 the deed bore date, leaving a will, bearing even 
 date with the deed, by which he ratified the 
 deed: Held (1) that, "if under the deed any 
 interest in the slaves resulted to the grantor, 
 and through him to his next of kin, the will 
 amonnted to a waiver and al)and(mment of such 
 interest, and (2) that the will operated to pre- 
 vent the grantor from re-acquiring title to the 
 slaves under the statute of limitations. 
 
 [Ed. Note. — For other cases, see Slaves, Cent. 
 Dig. § 20; Dec. Dig. €=>7 ; Trusts, Cent. Dig. 
 § 198; Dec. Dig. <s=::>153.] 
 
 *432 
 [Judgment <®=3570.] 
 
 *Some suggestions upon the question, — when 
 is the dismissal of a prior bill a bar to a sec- 
 ond suit? 
 
 [Ed. Note. — For other cases, see Judgment, 
 Cent. Dig. §§ 1028-1034, 103(j-1040, 1042- 
 1045, 1105; Dec. Dig. <©=o570.] 
 
 [This case is also cited in Parris v. Cobb, 5 
 Rich. Eq. 470, without specific application.] 
 
 Before Dargan, Ch. at Charleston, Febru- 
 ary, 1850. 
 
 On the 6th June, 1831, William Remley, of 
 Georgetown district, executed a deed, by 
 which, after reciting that he was the father 
 of certain slaves, namely, Elizabeth, Cathar- 
 ine, Ann, Eliza, Ciuda and Harriet, and that, 
 being unable to emancipate them, he desired 
 to give them the benefit of their labor, aud to 
 suffer them to enjoy, as far as practicable, 
 all the privileges of free persons, &c. in con- 
 sideration of the love and affection which 
 he bore to said slaves, and of the sum of $5, 
 and 'for "divers other good and valuable con- 
 siderations," he "granted, bargaitied, gave, 
 conveyed and delivered" unto Thomas J. 
 Smith, Thomas L. Shaw, Eleazer Waterman 
 and Robert Telfer, the said slaves, in trust, 
 to treat them with kindness ; — protect them 
 in their just rights ; exact from them no wa- 
 ges ; permit them to go where they please, 
 and to appropriate to their own use the pro- 
 ceeds of their time aud labor: and, in the 
 further Irust, that, if any attempt should be 
 made to enslave them, to convey them to 
 some nou-slaveholding State, t&c. 
 
 On this deed, which was recorded in the 
 register's ofhce for Georgetown on the 9th 
 November, 1831, was indorsed a probate by 
 Solomon Cohen, the subscribing witness, who 
 swore that he saw "William Remley sign, 
 seal and, as his act and deed, deliver the fore- 
 going deed in trust, for the uses and purposes 
 therein expressed." 
 
 On the same day the deed bore date, Wil- 
 liam Remley executed his last will and testa- 
 ment, in which he referred to and recognized 
 the deed, and by which he bequeathed his 
 whole estate to the trustees in the deed 
 named, in trust for the slaves Elizabeth and 
 others in the deed named, and appointed the 
 trustees executors. 
 
 William Remley died in Charleston (to 
 
 ^;=3For oilier cases see .same lopic auU KEY-iN UMBER in all Key-Numbered Digests aud Indexes 
 
 17S
 
 BROUGIITON V. TELFER 
 
 *4.T- 
 
 which place he removed alumt two years be- 
 fore his death) in September, l.*v}9. 
 
 On the 5th June. 1S45, the phiintiffs, as 
 *433 
 heirs at law of \Vil*liam Remley. filed a bill 
 for an account a;iainst the defendant, Rob- 
 ert Telfer, in which they stated that William 
 Remley was the owner, at the time of his 
 death, of the aforesaid slaves and their is- 
 sue and other property: that defendant had 
 taken possession of the personal estate of 
 William Remley, as executor in his own 
 wronj;; and charjred that defendant pretend- 
 ed to hold said slaves under a deed of trust 
 from William Reudey to lumself and otliers. 
 and, also, pretended that William Remley 
 left a will by which he disitosed of his es- 
 tate to the use and benefit of said slaves, &c. 
 
 Defendant answered and denied that he 
 had interfered with the property of William 
 Remley. or that he had any estate, at the 
 time of his death, and tiled with his answer a 
 copy of the will. 
 
 On the ;jth March. ls4(i. plaintifts's bill 
 was tlismissed by an ortler as follows: 
 
 "It appearing in this case that the defend- 
 ant has denied, by his answer, ever having 
 had possession of the property claimed by 
 the complainants, and there being no evi- 
 dence to contradict this alleu'ation. I am of 
 the opinion that the bill should be dismissed, 
 and it is so ordered, and that the complain- 
 ants do pay the costs of suit." 
 
 On the 26th August. 1S46. Richard W. 
 Broughton. one of the plaintiffs, tiled a peti- 
 tion in the Ordinary's oftice for Charleston, 
 praying that the executors in the will named, 
 be re«iuired to produce and prove the will, 
 and qualify thereon, or renounce their exec- 
 utorship. On the 7th September, of the same 
 year, defendant made seizure of the slaves 
 under the Act of ISOO: and on the liiHh .June. 
 1847, the will was admitted to probate, and 
 the defendant. Robert Telfer. and Eleazer 
 Waterman, ([ualified as executors. 
 
 On the lilth August, 1847. plaintiffs tiled 
 their present bill against Robert Telfer iuid 
 Eleazer Waterman, in which, alleging their 
 recent discovery of the will and de«Hl. they 
 charged that the trusts thereof were v;iid, 
 and prayed an account, and that the slaves be 
 decreed to belong to the estate of William 
 Remley. 
 
 *434 
 
 ♦The defendant, Robert Telfer. answered, 
 and amongst other things said, that William 
 Remley, soon after the deed was recorded, 
 informed him of it: that ilefendant accepted 
 the trust, but that the other trustees never 
 accepted: and that defendant, until his s 'i- 
 zure of the slaves, had never exercised any 
 decided acts of ownership over them. 
 
 Dargan.Ch. The complainants have, in a 
 manner entirely satisfactory to me, proved 
 themselves the nearest of kin, and the dis- 
 tributees of William Remley. deceased. They 
 tiled a bill against these defendants on the 
 
 r»th of June, 1S4.J. in regard to the same sub- 
 ject matter of controversy, arising in the 
 present bill, namely, the estate of William 
 Remley, and the slaves alleged by them to 
 have lieen illegally emancipated. On the 0th 
 of .March. lS4(i, by a decretal order of the 
 Court, the bill was dismissed with costs. 
 On the 19th of August, 1S47. they Hied their 
 present iiill. to which the defendants oppose 
 as a bar the former bill and the decret' there- 
 on. I am far from l)eing clear, that the de- 
 fence is not g<»od. and the complainants not 
 concluded. But waiving that (iuestio:i. I pro- 
 ceed to consider the ca.se on its merits. 
 
 The first question that occurs, relates to 
 the due delivery of the deed of the (itli of 
 June. IS'il. The deed piu'ports to have been 
 signed, sealed and delivered in the i)resence 
 of Solomon Cohen. And in the probate there- 
 inito iittached. Cohen makes athdavit that he 
 saw the grantor sign. seal, and as his act. de- 
 liver, the foregoing deed in trust for the uses 
 and purjxtses therein expressed, and that he 
 subscribed the same as a witness. Tlie deed 
 was recorded on the 9th day of November, 
 1831, in the office of Register of Mesne Con- 
 veyances, in (Jeorgetown district, where Rem- 
 ley and Telfer then resided. Soon after the 
 execution of the deed. Remley informed Tel- 
 fer that he had made a deed and recorded 
 the same, and that he. (Remleyi had made 
 the defendant. Telfer. a party to the deed. 
 Telfer, in his answer says, tliat he accepted 
 the trust, but that the other trustees named 
 in the deed never did acc»'i»t the said trust, 
 nor act under the deed. The defendant. Tel- 
 
 *435 
 
 fer. had possession of the original on *this 
 trial, but when it was delivered to him. or 
 by whom, did not appear. It wnuld seem 
 that it had never been deliveied to him per- 
 sonally before its registry. Whether it liad 
 been delivered to any person before that 
 time, for the defendant, or in his belialf. did 
 not appear. P>ut that it was done. I think 
 probable, from the import of the tlei^d and 
 the prol>ate of the subscribing witness, who 
 was a g(Kid lawyer, who knew lu)W to advise, 
 and was not likely in his probate to have fal- 
 len into the inadvertence of swearing to the 
 delivery if it had not actually taken place. 
 Rendey, himself, in his will, spe.iks of the 
 deed as a valid subsisting and effectual deed, 
 by which he acknowledges himself to have 
 I disposed of the slaves mentioned in it. These 
 ! are the facts mentioned as bearing on the 
 ! <iuestion of delivery. I think they are sufH- 
 I ciint to estalilish the due delivery of the 
 i deed. — The «piestion of delivery is always a 
 ] <iuestion of intention. Was a delivery In- 
 I tended and consunnnated? Did the grantor 
 I mean to do an irrevocable act? If the per- 
 sons provided fin- in this deed of trust had 
 been Rendey's legitimate children, could there 
 be a doubt that the delivery of the deed was 
 sufHcientV I think uot. 
 
 17V)
 
 *435 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 Havin,? arrived at tlie couclnsiou that the 
 delivery of the deed is sufficiently proved, the 
 next question is as to the validity of its pro- 
 visions. The case presents a perfect parallel 
 to that of Carniille v. Carmille, (2 McMull. 
 454.) It cannot be distinguished from it. 
 
 There, as here, there was a conveyance by 
 deed to trustees of slaves; — the condition of 
 the trust, in both cases was, that the slaves 
 should enjoy their freedom. In this case, 
 as in that, there was an open and undisguis- 
 ed attemi)t to evade and defeat the Act of 
 1820, which declares "that no slave shall 
 hereafter be emancipated but by Act of the 
 Legislature." I liave never been satistied 
 with the decision in Carmille v. Carmille. I 
 cannot pass it without expressing my dissent 
 and disapprobation. It is founded upon what 
 I conceive to be a very erroneous construc- 
 tion of the Act of 1S20. That Act declares 
 that there shall be no emancipation but by 
 
 *436 
 the Legislature. But the deci*sion in Car- 
 mille V. Carmille declares that the emanci- 
 pator has only to be secure of his trustee to 
 effect the emancipation of his slaves, whom 
 he desires to manumit, in as perfect a man- 
 ner as if the Act of 1820 was not on the Stat- 
 ute Book. He is thus enabled to do by indi- 
 rection, and througli a very fiimsy and bare- 
 faced evasion, that which the law inhibits 
 from being done by direct means. The deci- 
 sion is not in harmony with tlie spirit, the 
 policy, or even the language of the Act. It 
 would have been better to have held these 
 evasions a fraud upon the law, and to have 
 given the Act a construction which would 
 liave made such a deed as this simply void 
 and inoperative, not only as to the trusts, but 
 as to the title which it was intended to pass ; 
 and in the case of wills, to have held the be- 
 quest charged with such trusts void, and the 
 slaves distributable as residuary or intestate 
 property. But Carmille v. Carmille stands in 
 the way of such a decision, supported as it 
 has been by a recent case: Carmille v. Car- 
 mille, and similar cases, led to,, the Act of 
 1841. But in the case before me, the Act of 
 1841 does not operate. Tlie deed and the will 
 were both executed, and the testator, Wm. 
 Remley, died before the passage of that Act. 
 The case nuist be decided by the law as it 
 .stood before the Act of 1841; by the Acts of 
 1800 and 1820. I am bound to submit to the 
 authority of Carmille v. Carmille, and of Mc- 
 Leish V. Burch & Taylor, [3 Strob. l^q. 225] 
 decided by the Court of Errors, at May Term, 
 1849. And, according to these decisions, the 
 complainants have no right. 
 
 There is another aspect in the case unfa- 
 vorable to the claims of the complainants. 
 Whether we consider the slaves to have been 
 illegally manumitted by Remley in his life, 
 or, which is the same thing, to have been 
 done by his grantee or legatee after his 
 death ; in either case, the slaves were liable 
 to manucaption under the Act of 1800. And 
 
 ISO 
 
 they were formally seized for this purjiose by 
 the defendant, Telfer, previous to the filing 
 of this bill. 
 
 If either tlie deed or the will conferred on 
 *437 
 him a title, that *title was discharged of the 
 illegal trust. They became his property ab- 
 solutely. If he attempted to execute the il- 
 legal trust, and suffered the slaves to go at 
 large, in conformity with the directions of 
 the trust, then they were illegally manumit- 
 ted by him, and were liable to manucaption. 
 But he had a right to capture them himself. 
 Linani v. Johnson, (2 Bail. 1.37,) Mays v. Gil- 
 lam, (2 Rich. 160.) And if he was the first 
 captor, he would be re-invested with a good 
 title against all the world. This the defend- 
 ant, Telfer, did in the most formal manner. 
 
 The bill must be dismissed with costs, and 
 it is so ordered and decreed. 
 
 The complainants appealed. 
 
 Northrop, for appellants. 
 James Simons, contra. 
 
 WARDLAW, Ch., delivered the opinion of 
 the Court. 
 
 The appellants present objections, in vari- 
 ous forms, to the evidence of delivery of 
 Remley's deed of June 6, 18.31; but their 
 course of pleading in the suit dispensed with 
 any proof of this fact. In their bill, they ex- 
 pressly state the execution of this deed and 
 the delivery of it to the defendant, Telfer, 
 and call for the production of it by him. 
 When the deed was produced upon this de- 
 mand no proof of its execution was needed ; 
 and it seems none was i-equired on the trial. 
 If proof of the deed were necessary, it is 
 furnished in the explicit and uneiiuivocal rec- 
 ognition of the deed by the grantor in his 
 will ; and the will is admitted by both par- 
 ties. Our cases have settled, as to parol 
 gifts, that from the declaration of a donor 
 that he has given a chattel, it must be pre- 
 sumed that he has given with all the for- 
 malities necessary to transfer the title. So, 
 whe're one by his will recognizes and conlirius 
 a deed, he establishes the sealing and deliv- 
 ery of it against all who claim as volunteers 
 under him. The notions suggested in some 
 of the grounds of appeal, — that a deed can- 
 not be delivered where the grantee is igno- 
 rant of its existence, and that actual deliv- 
 
 *438 
 ery of the chattels must be super*added to 
 their symbolical delivery by deed, — have not 
 sutiicient plausibility to require refutatit)n. 
 
 If the execution of this deed be estalilish- 
 ed, there is an end of the plaintiffs's case. 
 Several decisions by the ultimate tribunal 
 of this State, (Carmille v. Carmille, 2 McM. 
 454; McLeish v. Burch, 3 Strob. Eq. 225; 
 Vinyard v. Passalaigue, 2 Strob. 536,) leave 
 us no right to question, that a conveyance of 
 slaves by deed, upon such trusts as are here 
 declared, passes the title to the grantee prac- 
 tically discharged from the trusts, whether
 
 TIIOMASSOX V. KENNEDY 
 
 *440 
 
 these be lejral or ill»'i.'al. If the trusts be 
 legal, as tliey were held to he in cases like 
 the present not governed hy the Act of 1S41, 
 which made them unlawful, the heneliciarit'S 
 being slaves could have no standing in Court 
 to compel tlie execution of the trusts, which 
 were thus of imperfect obligation, depending 
 ni)on the benevolence of tlie trustee. If the 
 trusts be considered illegal, they are simply 
 void, and do not impair the title of the trus- 
 tee as owner. 
 
 The case of the plaintiffs would not be 
 helped, if we should concede the doctrine of 
 these cases to be erroneous; and that as no 
 beneticial interest was ccaiferred ui>on the 
 trustee, there was a resulting trust to the 
 grantor, which upon bis death enured to 
 his next of kin. Kendey's will, which, al- 
 though executed cotemporaneously with the 
 deed, sjieaks at the death of the testator in 
 Septemiier, 1S;>9. ratities the deed; and this 
 ratification may be treated as amounting to 
 waiver and abandoinnent by the grantor of 
 any interest resulting to him. and through 
 him to his next of kin. The Court would be 
 inclined to lay hold of any such defence, 
 where one conies to be relieved against his 
 own act as contrary to the policy of the law. 
 
 This recognition of the deed by the gran- 
 tor in his will, satisfactorily disposes of the 
 objection to the decree, that the grantor's 
 possession of the slaves for eight years from 
 the date of the deed until his death, rein- 
 vested him with title, hy operation of the 
 statute of limitations. It is impossible to 
 regard that possession as adverse, and ef- 
 
 *439 
 
 fectual to defeat the party's former *deed, 
 when he declares at his death through his 
 will that the possession was always in sub- 
 ordination to the deed. 
 
 If the title to the slaves was in Kemley 
 at his death, and Telfer's ownership rested 
 on his manucai)tiou of them as unlawfully 
 manumitted, there would be nuich force in 
 the arginnent, that his oMlce of executor, 
 whensoever he (pialitied, was assumed at the 
 death of the testator; and that his nuuuicap- 
 lion was in his character as executor, and 
 conseiiuently, his legal title impressed with 
 a trust for the legatees, or distributees, ac- 
 cordingly as the decea.sed was testate or in- 
 le.state as to these slaves. It would not 
 he ecpiitable to press a fiction of law, such 
 as the retroactive oiieration of probate of a 
 will from the death of a testator, to work 
 injury to an individual against the right of 
 the case ; but here the seizure was after the 
 institution of procei'diugs to compel the ex- 
 ecutor to make probate of the will, and the 
 tictirm wowld lead to no unconscientious re- 
 soltv. It is unnecessary, however, to deter- 
 mine any thing on this point, as we hold the 
 dt^ed to bar the plaintiffs. 
 
 Eor the same reason, we avoid expressing 
 the judgment of the Court on the questirm 
 
 as to the bar of the former decree; but 
 some suggestions on this point may be al- 
 lowed. A former decree between the same 
 parties, or their privies, as to the same sub- 
 ject matter, is a bar to further litigation, al- 
 though it be merely a decree disnussing the 
 hill, unless it be expressed that the disnnss- 
 al is without prejudice; 2 Story Eii. § l.")li.'). 
 In this case, the parties are the .same as in 
 the former suit ; the subject of ctmtroversy 
 is the same, exceiit that plaintiffs allege their 
 discovery of the existence of tlu' deed since 
 the termination of tlu> former suit, and the 
 decree disnussing the Fiill is absolute in its 
 terms, although pnx-eeding on the ground 
 that there was no evidence of Telfers having 
 ever had possession of the slave.s. The rea- 
 sons on which the Court proceeds in its judg- 
 ment, usually do not control the extent of 
 the judgment, which is conclusive as to all 
 nmtters that should then he brought into 
 litigation. Does the discovery of new evi- 
 dence of itself remove the bar of a former 
 decree, or only serve as a basis for a bill of 
 
 *440 
 review? Is the ^evidence in question here, 
 in fact newly discovered, or such as proiier 
 diligence on their part would have enabled 
 the plaintiffs to use on the former trial'.' 
 
 The plaintifis must have had some inkling 
 of the deed when they filed their bill in the 
 former suit, for that contains various charg- 
 es concerning such a deed ; and in the prog- 
 ress of the cause, they might have obtained 
 fuller information concerning the deed, for 
 a copy of the will was filed with defendants 
 answer to the first bill, and the will has ex- 
 plicit reference to the deed. It is more sat- 
 isfactory to the Court, however, to decide 
 against the plaintiffs on the merits of their 
 case as now presented, than to estop them 
 by a technical bar. 
 
 It is ordered and decreed that the ap- 
 l)eal be disnussed, and the circuit decree be 
 afhrmed. 
 
 .JOHNSTON, DUNKIN and DAlUiAN, CC. 
 
 concurred. 
 
 Appeal disniissed. 
 
 3 Rich. Eq. 440 
 
 W. r. TIIOMASSON v. K. E. KENNEDY. 
 Adm'r, and Others. 
 
 J. M. COOPEU V. W. P. TIIOMASSON and 
 
 Others. 
 
 (ColiMuliia. May Term. 1S51.) 
 
 [EjrcciHion <S=>.'ir);i ; Sheriffs ami Cnnsiahles 
 C=3ll20, 1212.] 
 Where a sheriff sells land midor fi. fas. 
 and executes titles to the bidder, the eldest 
 li. fas. to which the mon<\v, if received by the 
 sheriff, would he api)licabl('. are satistiod to the 
 extent of the hid, although the money be not, 
 in fact, paid to the sheriff, and the i)laintiffs in 
 s\ieli exinutions must look to the sheriff"; and 
 the facts, that such executions were marke<l 
 
 <3=;:jI'"or other cases see same lopic auU KEV-NUMBEK iu all Key-Numberetl Digests and Indexes 
 
 181
 
 HiO 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 'wait orders,' that the sale had been agreed on 
 between the defendant in execution, who re- 
 ceived the amount of the bid, and the pur- 
 chaser, and was a mere formal sale to perfect 
 the title of the purchaser, and that defendant 
 in execution had sufficient property, at the 
 time, to satisfy all judgments against him, will 
 not exonerate the sheriff from his responsibility. 
 [Ed. Note. — For otlier cases, see Execution, 
 Cent. Dig. § 1076; Dec. Dig. <©=>353 ; Sher- 
 iffs and Constables, Cent. Dig. §§ 205, 225; 
 Dec. Dig. (S=5l20, 122.] 
 
 [Sheriffs and Constables <g=>122.] 
 
 If the defendant in execution himself ap- 
 plies the amount of the bid to the eldest exe- 
 cutions according to the priority of their liens, 
 that will excuse the sheriff; but the onus of 
 showing that is upon the sheriff. 
 
 [Ed. Note. — For other cases, see Sheriffs and 
 Constables, Cent. Dig. § 224; Dec. Dig. (©=> 
 122.] 
 
 [Appeal and Error (©=3104.] 
 
 Where a Chancellor, directing an issue at 
 law, ordered that the depositions of certain wit- 
 nesses, who had been examined by commission 
 or before the Commissioner, be read on the 
 trial of the issue — Jteld, that an appeal, on the 
 ground that the witnesses were incompetent, 
 would not lie from the act of the law court al- 
 
 *441 
 lowing the ^depositions to be read, — the appeal 
 should have been from the order of the Chan- 
 cellor. 
 
 [Ed. Note. — For other cases, see Appeal and 
 Error, Cent. Dig. § 711; Dec. Dig. <§=^104.] 
 
 [Equity <g=>383.1 
 
 The principles stated upon which new trials 
 of issues at law will be directed. 
 
 [Ed. Note. — Cited in Shaw v. Cunningham, 9 
 S. C. 273; Ivv v. Clawson. 14 S. C. 273; Wool- 
 folk V. Graniteville Mfg. Co.. 22 S. C. 336; 
 Rynerson v. Allison, 30 S. C. 537, 9 S. E. 656. 
 
 For other cases, see Equity, Cent. Dig. § 787 ; 
 Dec. Dig. ®=:j383.] 
 
 [Witnesses <©=:3l05.] 
 
 A witness who, if liable at all, is liable no 
 matter which way the decision goes, is com- 
 petent. 
 
 [Ed. Note. — For other cases, see Witnesses, 
 Cent. Dig. § 210; Dec. Dig. <S=:5l05.J 
 
 [Eridence <g==>271.] 
 
 The question was, whether a judgment at 
 law was satisfied, and plaintiff in the judgment 
 died after subptrna served and before his an- 
 swer was put in : Held, that the answer of the 
 plaintiff in the judgment, to a rule at law to 
 show cause wh.v satisfaction should not be en- 
 tered on the judgment, could not be read as evi- 
 dence for his administrator. 
 
 [Ed. Note. — For other cases, see Evidence, 
 Cent. Dig. S 1102; Dec. Dig. <S=>271.] 
 
 [Eridence (®=157.] 
 
 Where the issue between creditors is, wheth- 
 er the judgment of one is satisfied, the testi- 
 mony of the defendant in the judgment is not 
 higher evidence of satisfaction, than that of 
 other witnesses. 
 
 [Ed. Note. — For other cases, see Evidence, 
 Cent. Dig. § 463 ; Dec. Dig. <©=:j157.] 
 
 \Equitii ©=380.] 
 
 [Cited in Sloan v. Westfield, 11 S. C. 450, 
 to the point that issues to courts of law are 
 directed by courts of equity for the purpose 
 uf informing the conscience of the chancellors; 
 and. if this juirpose be achieved, a court of 
 equity will not narrowly examine the process 
 of the law court. Collisions between the two 
 courts should be discouraged, and minute dis- 
 
 agreements as to principle or procedure will not 
 be noticed.] 
 
 [Ed. Note. — For other cases, see Equity, Cent. 
 Dig. § 809; Dec. Dig. <©=3380.] 
 
 [Sheriffs and Constables <S=>120.] 
 
 [A sheriff who sells laud under execution 
 and executes title to the purchaser, is liable 
 to the execution plaintiff as for money had and 
 received, thouiih the amount of the bid was not 
 in fact paid to him.] 
 
 [Ed. Note. — For other cases, see Sheriffs and 
 Constables, Cent. Dig. !? 205; Dec. Dig. iS=> 
 120.] 
 
 Before Diinkin, Ch. at York, June, 1849. 
 
 Duiikin, Ch. Daniel Thomas, a debtor, 
 much embarrassed, left the State some years, 
 since. — His property was sold, partly by the 
 sheriff of York, (the complainant, Thomas- 
 son,) partly by R. Macbeth, former sheriff of 
 Union, and partly by B. Johnson, the present 
 sheriff'. It seems by the report, that part of 
 the funds realized from the sales, are in the 
 hands of the commissioner of Y'ork, part in 
 those of the commissioner of Union, and part 
 is due by sheriff' Johnson. The commissi in- 
 er was ordered to publish a notice for the 
 creditors of D. Thomas to estal)lish their de- 
 mands before him, and that he should report 
 them, and also upon the assets to be marshal- 
 led. The cause was heard upon the commis- 
 sioner's report, and exceptions thereto. Sev- 
 eral exceptions embrace the same matter. 
 The Court will proceed to consider the princi- 
 pal points made. The exceptions on the 
 other points seem to the Court sufficiently 
 answered by the report of the connnissioner 
 thereon, or are otherwise untenable, and are, 
 therefore, overruled. 
 
 The claim of the administrator of Allen 
 DeGraffenreld, deceased, has been sent to a 
 jur.v, and no further remark upon it is now 
 necessary or proper. 
 
 The first exception of the junior creditors,, 
 relative to the ten dollars, is sustained. 
 
 The second and third exceptions are over- 
 *442 
 ruled ; the sheriff" *probably advanced the 
 money to the creditors before he received it 
 from the defendant. 
 
 The fifth exception relates to this state of 
 facts, viz: — at April sales, 1842, sheriff" John- 
 son sold to J. A. Stevenson, a tract of land 
 under executions again.st D. Thomas. The bid 
 was $2,205, and the sheriff executed and de- 
 livered to the purchaser a conveyance of the 
 premises. The commissioner has charged 
 Johnson w-ith only the sum of -$735 as receiv- 
 ed on this sale. It is said the land was sold 
 by Thomas to Stevenson at private contract, 
 and that the balance was received by Thomas 
 himself from Stevenson, but it is also suggest- 
 ed that he (Thomas) applied the money to- 
 the oldest existing unsatisfied execution. 
 When the sheriff' made the sale in April, 1842, 
 the judgments of Wm. Dawkins and of A. W. 
 Thomson, amounting to some .$4,500, were 
 open and yet unsatisfied. The principles o'.i 
 
 182 
 
 (g:::3For other eases see same l.opic aud KEY-NUMBER iu all Key-NuiubereJ Ui^esis and iiK
 
 TIIOMASSON V. KENNEDY 
 
 *445 
 
 "Which fhf exociition insists are well sustain- 
 ed by the MUthorifit's cited in tlie nr>:unient. — 
 Davis V. Hunt, (2 Itail. 41-') ruled, that the 
 sheriff having sold the land under executions 
 and executed titles to purchaser, acknowledy- 
 insj l).v his deed the receipt of tlie purchase 
 money, is liable as for money had and receiv- 
 ed, althou^'h in fact the money may not have 
 Iteen paid to him. The eldest jud^rment credi- 
 tor is entitled to tlie action, and the money; 
 for it is also held, in O'Neall v. Lusk. (1 Hail. 
 l.'*_'0,l that a payment to the sheriff after ti. fa. 
 lodged, discharged the defendant, althou^'h 
 the sheriff' nc;rlect to i»ay over the money, or 
 to credit it on the execution. — and also in 
 Terry v. Williams, (Dud. 44,1 that when the 
 sheriff's sale is perfected, the oldest execu- 
 tions in his ofHce are satisfied to the amount 
 of the sale. The only matter oi)en for inquiry 
 is. whether the whole amount of the sales 
 were in fact applied to the oldest .iud^ments 
 flien in existence a^'ainst the defendant. D. 
 Thomas. This does not appear from the re- 
 port, and the difference between $~'.\~} and $2,- 
 I'Oo, ouirht to be deducted as of April, 1S41', 
 from the oldest executions reported to be uii- 
 r^atisfied. — liiit if sheriff .Johnson can prove 
 
 *443 
 that this difference was in *fflct applied by 
 Thoma.s, as he, Johnson, ouj^ht to have ap- 
 plied it, he is entitled in eijuity to the benefit 
 of such proof, and the commissioner may en- 
 quire and amend his report accordinjily. The 
 inipiiry will also embrace the matter in- 
 cluded in the Gth, 7th, 8th and Hth exceptions. 
 
 It is ordered and decreed that the report 
 of the commissioner be re-committed for the 
 purpose of reforniinf; the same according; to 
 the principles herein stated and tlu> testimony 
 to Ite submitted. 
 
 The issue ordered liy Chancellor Dunkin 
 was tried at October Term. ls4!l. and a mo- 
 tion for a new trial of the issue at law was 
 made in .Tune, is.'O, before his Honor. Chan- 
 cellor Darwii, who pronounced the followlni^ 
 ilecree. 
 
 Darj-'an, Cli. These cases were tried to- 
 iiether at the present term. 
 
 Allen DeCJratfenreid, deceased, the inte.s- 
 tate of the defendant, Richard K. Kennedy, 
 had two .judi-'ments a;:aiMst Daniel Thomas; 
 one fi>r $:!()(»t>.!»."i, and the other for .1:Tsl'.(K» — 
 upon both of which executions were lodged in 
 is::; I. 
 
 Thomas liavin.L,' proved insolvent, and his 
 property haviii}; been sold by the sheriff, sini- 
 dry of the creditors of the said 'l nomas have 
 tiled their bills for the purpose, aiuon^ other 
 thirifrs. of having the exi'cutions of DeCJrnf- 
 fenreid, which were senior to theirs, declared 
 .satisfied. The case came on to 1k^ heard at 
 June Term, 1S4!), and the pr«>siding Chancel- 
 lor ordered an issue at law to be made up 
 to try the (piestion. whether anythin;; be due 
 on the two executions of A. DeCJratTenreid v. 
 D. Thomas, in which the junior execution 
 <'reditors shall be plaintiffs, and tlie adminis- 
 
 trator of DeOraffenreid. defendant, and that 
 at law, the depositions of the witnesses ex- 
 andned before the comnussioner, whose testi- 
 mony was taken by connnission, be received 
 in evidence. 
 
 An issue at law was aciordin^ly made up, 
 and said issue was tried at the Court of 
 Common Pleas for Tnion district, at October 
 Term, ls4M. when the jury chart,'i'd with the 
 Lssue, returned the followin;; verdict: — "We 
 
 *444 
 Hnd for the plaintiffs in *the issue that there 
 is Mothint; cUu' n|ion the executions within 
 mentioned." 
 
 The present is a motion to set aside the ver- 
 dict, and for a new trial, on various i^rounds. 
 I shall not enter into the consideration of the 
 varioiis jirounds in detail. 
 
 The first relates to the competency of the 
 witnesses. Johns(»n and Satterwhite. The 
 last named witness was surety to 1). Thomas. 
 They were sued, and jud;;ment obtained 
 against them both. Satterwhite paid the 
 debt, and he. in that way, is a creditor of 
 Thomas. Hut the Court having published an 
 order for the execution creditors of Thomas 
 to jnesent and prove their demands — Satter- 
 white has presented no claim. I incline to 
 think he is competent. Johnson's competency 
 is questioned, on the followinj; state of facts. 
 As sheriff", he sold land of Thomas for about 
 $2200. S(iven hundred dollars of this sum he 
 ai)plied to the payment of a debt or debts in 
 his office, and the balance, secured by notes, 
 he transferred to Thomas, who passed them 
 off to third persons. The execution creditors 
 of Thomas are seeking in these proceedings 
 to make Johnson, (who is also a jmrtyl liable 
 for the misaiqilication of the amount which 
 he transferred to Thomas from the pro- 
 ceeds of the sale of his land. It is .said that, 
 on this account, he is interested, and, there- 
 fore incompetent. Hut. on the contrary, it 
 appears that whether the Deiiraffenndd ex- 
 ecutions are removed or not, by a decree of 
 satisfaction, the demands of the prior execu- 
 tion <reditors are sufficiently laige to ab.sorb. 
 not only the funds on hand, and now sul>ject 
 to distribution by the Court. Imt also an.v 
 amount of liability which sheriff Johnson 
 jnay have incurred by the misapplication of 
 the lu'fore mentioned fund, which he is alleg- 
 ed improperly to have paid to Thomas. From 
 this state of facts, it nnist seem that John- 
 .son, if liable at all, is liable at all events, aial 
 his liability does not dejx'nd uiion the tjues- 
 tion, whether the DeCJraffenreid executions 
 are satisfied or not. He is. therefore, indif- 
 ferent, and is not incomp»'tent from interest. 
 
 The deposition of iioth these witnesst's had 
 been taken before the last Court, and the 
 
 *445 
 Chancellor ordered the depositions *of the 
 witnesses, that had been exanniied before the 
 conniiissioner (u* taken by commission, to be 
 received in evidence on the trial of the i.ssue 
 
 1S3
 
 *445 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 at law. This was accordingly doiip. — And 
 were I less strongly impressed that the wit- 
 nesses were competent, I should not feel at 
 liberty to modify the order of the Chancel- 
 lor who ordered the issue, or to reverse his 
 decision as to the competency of those wit- 
 nesses. 
 
 As to the other grounds relied on as suffi- 
 cient to induce the Court to set aside the ver- 
 dict, I am of the opinion that they are insuffi- 
 cient ; — I am entirely satisfied with the ver- 
 dict of the jury. I have come to the same 
 conclusion that they did, and on the same 
 evidence. The motion is refused. 
 
 The two executions of A. DeGraffenreid v. 
 D. Thomas, mentioned in. the foregoing part 
 of this decree, are hereby declared to be 
 satisfied, and it is so ordered and decreed. 
 
 From the two circuit decrees and the ver- 
 dict of the jury, appeals were taken, on vari- 
 ous grounds, which appear in the opinion 
 delivered in the Court of Appeals. 
 
 Thomson, Herndon, for appellants. 
 Dawkins, Williams, contra. 
 
 WARDLAW, Ch.. delivered the opinion ot 
 the Court. 
 
 These cases relate to the marshalling of 
 the assets of Daniel Thomas, an insolvent 
 debtor, whose property was sold by the sher- 
 iffs of Union and York. The eases were first 
 heard by Chancellor Dimkin, at the sitting 
 for Union, in June, 1849, on exceptions to 
 the coni'uissioner's report, as to the debts 
 and assets of Thomas. 
 
 One of these exceptions is as to the extent 
 of the liability of B. .Tohnson, sheriff of Un- 
 ion, in the following state of facts. — Thomas 
 and one Stevenson had agreed as to the price 
 of a tract of land belonging to Thomas ; and 
 on the sale day in April, 1842, the land was 
 sold by the sheriff, under executions in his 
 office against Thomas, and bought by Steven- 
 son at his bid of .'?220.j. Sheriff" Johnson 
 having received $73.5 from the purchaser, 
 and allowed him to settle for the balance 
 
 *446 
 ($1,470) *with Thomas, the defendant in the 
 executions, conveyed the land to Stevenson. 
 It does not appear that the creditors of 
 Thomas were consulted about this arrange- 
 ment. At that time, there were in the sher- 
 iff's office two executions (fl. fas.) against 
 Thomas, open and unsatisfied, both marked 
 "wait orders," namely, one of Wm. Daw- 
 kins, for about $564 entered October 31, 1840 ; 
 and one of A. W. Thomson, entered Feby. 27, 
 1841, for about $2823. of which about $485 
 was for arrears of interest. There were also 
 in the sheriff's office many executions of an 
 older date against Thomas, standing open, 
 but as these have not been presented to the 
 commissioner, on the call for creditors, they 
 are presumed to be satisfied. The Chancel- 
 lor decided that sheriff Johnson was liable 
 for the whole sum of Stevenson's bid, and 
 
 1S4 
 
 that to the extent of this liability, the elder 
 executions were extinguished. Tliis appeal, 
 in behalf of the sheriff, insists that he is not 
 liable beyond the money actually received 
 by him ; and it is urged, tliat the sale was 
 merely formal to perfect Stevenson's title ; 
 that no creditor was injured, inasmuch as 
 the elder executions were not pressing for 
 collection, and junior executions were not in 
 existence ; and that other property of Thom- 
 as remained sufficient to satisfy all the exe- 
 cutions against him. The authorities cited 
 by tlie Chancellor fully sustain the principles 
 of law asserted in the decree ; and the facts 
 relied upon do not take this case out of these 
 principles. The sheriff is a ministerial of- 
 ficer, required to execute the judgments of 
 the Courts, by levy, sale, and application of 
 the proceeds according to fixed rules ; and 
 he is not to judge what circumstances may 
 justify departures and exceptions from these 
 rules. To allow him to misapply the pro- 
 ceeds of his sales, upon conjectures as to the 
 solvency of defendants in execution, would 
 furnish room for much fraud, to the injury 
 of many per.sons whose interest in particular 
 cases may not be seen. The rights of the 
 conuaunity are best protected by the rigid 
 exaction of duty from public officers. Where 
 the sheriff" ventures to constitute an interest- 
 ed party his agent for the disbursement of 
 the funds of his office, he must be responsible 
 
 *447 
 for the faithful per*formance of the agency. 
 In this case, if Thomas has applied the 
 amount intrusted to him to the payment of 
 his creditors according to the priority of 
 their liens, the sheriff" has the opportunity 
 of proving this fact and exempting himself 
 from responsibility, under the instructions 
 of the Chancellor in re-conmiitting the report, 
 and this is treating him witli much liberality. 
 A. W. Thomson, one of the judgment cred- 
 itors of Thomas, appeals from the overruling 
 of his exception to the commissioner's report 
 —that he was not allowed interest from the 
 day of the sherift'"s sale, on the aggregate of 
 principal and interest due to him on that day. 
 Where creditors have been obstructed in 
 their remedies for satisfaction, by the act 
 of this Court in assuming the administration 
 of the assets of debtors, the Court will gen- 
 erally preserve the proportion of the debits 
 to the assets existing at the time of the ob- 
 struction, so as to secure equality among the 
 creditors, and prevent undue profit to some 
 by tlie delay. In many cases, however, where 
 the funds in the custody of the Court have 
 produced no interest, from a proper sacrifice 
 of productiveness to safety, it may be that 
 none of the creditors .shall receive interest. 
 In the case before us, the discussion of this 
 difficult doctrine is unnecessary, after the 
 conclusion we have attained on the appeal of 
 sheriff" Johnson. The sum of $1470, applica- 
 ble in his hands to the payment and extin- 
 guishment of the executions according to
 
 TIIOMA.SSON* V. Ki:NNi:nY 
 
 *4oO 
 
 their priority, is more than sutlicioiit t<» sat- 
 isfy the first execution, and to satisfy all 
 the arrears of interest on the seeoiul exeeii- 
 tion. which is that of the aititellant. So, that 
 the lialaiK-e tlTen reniaininj: due to the ap- 
 pellant, is net-essarily principal: as the pay- 
 ment must lie lirst ajipiied to the extinj^uish- 
 nient of interest. Whether this creditor may 
 be entitled to interest afterwards on this 
 balance from sheriff Johnson or otlier perscm. 
 will depend on facts as to which we are un- 
 informed : as whether prompt demand •>f 
 payment was made, and whether the sheriff, 
 or other custodier of the funds, has made 
 I)rofit upon them, or has nuxed them with 
 ins private funds. These remarks may Ik; 
 applied to other creditors, and to all the 
 funds now in controversy. Tl^e principles 
 
 *448 
 *may he more inteliijrcntly and ni'irc dctinlte- 
 ly settled, when we have tiie furtlier report 
 of the commissioner upon the facts. 
 
 On another exception to tlie conu^issioller'^< 
 report, as to two judsmt'nts of Allen De(Jraf- 
 fenreid against Daniel Tliomas. the Chan- 
 cellor directed an issue to he made up in the 
 Court of Connuon I'leas for Inion district, 
 between the junior judgment creditors of 
 Thomas, as plaintiffs, and the administrator 
 of DeGraffenreid, as defendant, to try wheth- 
 er any thins was due on these judgments ; 
 and he further directed, tiiat the depositions 
 of the witnesses before the commissioner, 
 whether taken by him, or by connuission, 
 should be received in evidence on the trial 
 of the issue at law. This issue was tried at 
 October Term, 1.S4!), of the Court of Connnon 
 Pleas for I'nion, when tlie jury returned a 
 verdict for the plaintiffs in the issue, that 
 nothing was due upon said judgments. At 
 the .sitting of this Court for Union, in June, 
 1S50. a motion for a new trial of this issue, 
 on various grounds, was made before Chan- 
 cellor Dargan, and refused by him. and the 
 same grounds are now pre.><ented to us on aji- 
 peal. 
 
 The first ground is, as to the competency 
 of the witnesses, Satterwhite and Jolnison. 
 
 The testimony of these witnesses was re- 
 ceived by the connnissioner, was recognized by 
 the Chancellor, and was ordered by him to be 
 received at law. If there be any error as to 
 their competenc.v, it is the error of this Court, 
 and not of the law court, which conformed to 
 the request of the Chancellor; and tlie ap- 
 peal should have been from the order of the 
 Chancellor, and not from the verdict of the 
 jury. This is not a mere nicety as to pra<-- 
 tice, but a grave matter of principle, affect- 
 ing the comity which should prevail between 
 co-ordinate tribunals. 
 
 Appeals should be discourjigeii whicli are 
 calculated to bring the courts of Law and 
 Eiiuity into collision. Issues to the court 
 of law are directed by this court, for the pur- 
 pose of informing the conscience of the Chan- 
 cellors ; and if this purpose be achieved, we 
 
 do not ex.-iniine the process very narrowly. 
 If, ui)on a particular issue, we nnght suppose 
 that tlie law court was in some error as to 
 
 *449 
 the law. we should not grant a new *trial of 
 the issue upon this express ground ; for this 
 would imply the arrogant pretension on our 
 part, tliat we understood the law better than 
 those to whom its administration was com- 
 mitted by the polity of the State. Hut we 
 would look to the materiality and importance 
 of the supposed error. If the verdict were, 
 upon the whole, satisfactory, no notice would 
 be taken of n)inute departures from our no- 
 tions of principle or proce<lure. But, if we 
 regarded the supposed nustakes of the court 
 trying the issue, to be so material, that our 
 consciences were not satisfied as to the gen- 
 eral result of the trial, while we should not 
 undertake to rectify the rulings of the other 
 court, we might order the parties to try tlu' 
 issue again, and recpiest of the other court 
 that a particular course should be pursued 
 as to the points on which we were dissatis- 
 fie<l. In the case under consideratioti, there 
 is much testimony leading to the .-^ame con- 
 clusion besides that of the witnesses to whom 
 objection is made — the result attained by the 
 Jury is in conformity to the opinion of the 
 commissioner who first heard the evidence, 
 and to the opinion of the chancellor on the 
 circuit, to whom the application for new trial 
 was made.; — and is satisfactory to this Court. 
 
 Moreover, if the (luestions as to the.se 
 witnesses were properly before us. by appeai 
 from the order of the Chancellor, we should 
 disallow the applicant's motion. 
 
 Much doubt as to the competency of Satter- 
 wliite might have been entertainiMl. if his 
 payment, as surety of the judgment against 
 Thomas and himself, had been made after 
 the passage of the Act of 1840, (11 Stat. HuU.) 
 hut the payment was antecedent to that Act, 
 and the Act is prospective in its terms. I'er- 
 haps, etiual doubt as to his competency inay 
 arise — putting the statute aside — from the 
 application of the equitable doctrine of sub- 
 rogating a surety who has paid the debt of 
 liis principal to the riglits and remedies of the 
 creditor. There is force in the vit>w that 
 Satterwhite has presented no claim against 
 Thcanas, under the call upon creditors, but 
 it is not clear that he w'as precluded from 
 claim at the time of his examination. The 
 appeal as to Satterwhite was aliandoned. and 
 
 *450 
 I»roperly, for the *question as to his com- 
 petency was not rai.^ed in time. Tiie objec- 
 tion was not made before the issuing of the 
 connuission to take liis testimony, nor urged 
 upon the trial of the issue. 
 
 As to Jolnison, his competency is clear 
 enough. His liaiiility f(n- tlie bid of Steven- 
 son does not depend upon the (lueslion of 
 satisfaction of DeGraftenreid's judgments; 
 for if these be removed, those of Dawkins 
 and Thomson remain, more than suflicient to 
 
 185
 
 *450 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 absorb tiie wbole sum of bis liability. If 
 liable at all, he is liable at all events; it 
 makes no difference to him whether he is to 
 pay one or the other of these parties. 
 
 Other grounds of appeal object to the ver- 
 dict of the jury, because the answer of De- 
 Graffenreid to a rule in the Common Pleas 
 to show cause why satisfaction should not be 
 entered on his judgments, was not received 
 as evidence on the trial of the issue. It is 
 insisted that such answer to a rule should be 
 treated as an answer to a bill, where the 
 party dies, as here, before putting in answer 
 to the bill, after service of subpoena upon 
 him. It is conclusive reply to these grounds, 
 that the evidence was not offered before the 
 commissioner, nor to the Judge on the trial 
 of the issue. Again, an answer to a rule is 
 a mere declaration, without cross examina- 
 tion, of an interested party in his own be- 
 half ; and is not evidence in any court on the 
 trial of an issue between adverse parties. 
 If the Court of Common Pleas, on the return 
 of the rule, had directed an issue to the jury 
 as to the satisfaction of these judgments, 
 surely the declaration that he had not been 
 paid, by the plaintiff in execution, although 
 under oath, would not be heard on the trial 
 of the issue. An answer to a rule has little 
 analogy to an answer to a bill. In the former 
 evasion and prevarication are quite practi- 
 cable ; it is more hazardous and dithcult to 
 frame untrue responses to the searching 
 interrogatories of a bill. 
 
 The same reasoning disposes of the ground, 
 that DeGraffenreid by his indemnification of 
 the sheriff, declared his execution to be unsat- 
 isfied. 
 
 Another ground objects, that the best ev- 
 *451 
 idence of the satis*faction of the judgments 
 was not produced, because Thomas himself 
 was not examined as a witness by the plain- 
 tiff. It is a palpable mistake to suppose that 
 the testimony of Thomas was better evidence, 
 that is, of a higher grade, than that of any 
 other witness who was examined; and the de- 
 fendant In the issue had all the benefit, in 
 argument on the effect of the evidence, of 
 the presumption against the claim of the 
 plaintiffs arising from their failure to pro- 
 duce this witness. 
 
 Tile other matters of objection to the ver- 
 dict do not require particular notice. 
 
 The remaining ground of appeal is, that 
 the estate of DeGraffenreid sbould be re- 
 imbursed for the costs and expenses of a 
 suit at law, by the children of Thomas against 
 the sheriff of Union, for selling, as the prop- 
 erty of Thomas, certain negroes claimed by 
 these children. It seems that DeGraffenreid 
 indemnified the sheriff' in the sale of these 
 negroes ; and that the proceeds of sale have 
 increased the assets of the debtor, of which 
 the estate of DeGi-aff'enreid gets no portion. 
 If DeGraffenreid were to be regarded merely 
 
 as a volunteer in this act of indemnity, it 
 would be difficult to demonstrate that he 
 sht>uld be rewarded for the offence of com- 
 mon barratry. But he is worse than a vol- 
 unteer. By holding up, as subsisting claims 
 against Thomas, these judgments, which 
 were, in fact, satisfied, he has attempted a 
 fraud on the other creditors, and has stirred 
 up the protracted and expensive litigation 
 in this court. It is quite as reasonable that 
 his estate should be burdened with the whole 
 expenses of litigation in this court, as that 
 it should be reimbursed for his expenses in 
 another tribunal, quite competent to regulate 
 the incidents of its own judgments. Howev- 
 er, directions as to costs are reserved until 
 the amended report of the commissioner be 
 made. 
 
 It is ordered and decreed that the appeal 
 be dismissed, and the circuit decrees be 
 affirmed. 
 
 JOHNSTON, DUNKIN, and DARGAN,. 
 CC. concurred. 
 Appeals dismissed. 
 
 3 Rich. Eq. *452 
 
 *E. B. WHEELER and JOSEPHINE and 
 
 SARAH F. LIVINGSTON v. W. W. DU- 
 
 RANT aud S. M. STEVENSON. 
 
 (Colimibia. May Term, 1851.) 
 
 [Wills <S=:jSS.] 
 
 S. C. by instrument under her Iiand and 
 seal, attested by three witnesses, (who subscrib- 
 ed without an attestation clause, aud simply 
 after the word "witness,") and addressed "to 
 all whom it may concern," gave "in considera- 
 tion of the natural love and atfectiou which I 
 bear to my graud-childreu, and others herein- 
 after mentioned, the following property ; 
 
 "To Josephine aud Sarah L., I give all the 
 interest I have in the estate of Joseph L. — it 
 consisting principally of a bond for the pay- 
 ment of some fourteen or fifteen huudred dol- 
 lars, secured by a mortgage of nine negroes. 
 
 "To Laura and Sarah C, viz : to Laura a 
 feather bed aud furniture, one set silver tea- 
 spoons, aud one silver hoop aud chain for scis- 
 sors, and to Sarah, &c. 
 
 "To my daughter P. my wearing apparel 
 and my books. 
 
 "To my daughter M. one feather bed and 
 furniture. 
 
 "Aud I hereby appoint S. S. and E. W. trus- 
 tees to this deed, with the full uuderstaudiug 
 that the above property does not vest in an- 
 other of the parties until my death." 
 
 Under proceedings in equity to marshal the 
 assets of Joseph L., S. C. purchased some of 
 the mortgaged negroes, and the proceeds of the 
 sale were allowed her on account of the lien 
 of the mortgage ; S. C. executed a will, which 
 after her death was admitted to probate, by 
 which she revoked the instrument ; the negroes 
 purchased by S. C went into the possession of 
 defeudaut as agent of S. C, aud, after her 
 death, E. AV., as trustee, aud the cestuis que 
 trust, Josephine and Sarah L., tiled their bill 
 against defeudaut, without making the personal 
 representative of S. C. a party, claiming the 
 negroes under the instrument; at the trial the 
 instrument was not produced, and to prove its 
 execution, delivery, loss and contents, O. W.,. 
 
 1S6 
 
 (®=»For other cases see same topiv; and KEY-NUMBER in aU Key-Numbered Digests and Indexes
 
 WHEELER V DURANT 
 
 Hoj 
 
 ■one <.f tlio attostiiiff witnos.«os. tostiii.'d. that ] rt'nalii i.oitinn of the nezroos inoit;.'awa by 
 ho saw the instruniont expciitod; that it was j,,.s^.j,li Liviiij^ston as afoivsaid, now amouiit- 
 8ul)s«M|iientl.v flelivort-d to him l)y K. W. to bo .||^ ^^ soven, wore sold to satisfy said iiiort- 
 !:;:^'trit^:me;;tJr';ha^a'day^.r{;^o'1X;:Ua.e a.ul the <le.ua,..ls of all of his .mlitors. 
 tlio trial. K. W. tohl him it was lost, and K<>t I and were hid off hy her. and are now in the 
 
 him t<i assist him to soaich fur it. which soanli 
 |)iovfd iiiolTo.tual: Held that plaintiffs were 
 not ontitlod to recover. 
 
 I Ed. N(.te.— Cited in Alexander v. Burnet, 5 
 Rich. l!ts: Rahl) v. Harrison. 'J Rich. Eij. 110, 
 70 Am. Dec. •_'():!. 
 
 For other cases, see Wills, Cent. Dig. §)i "-OS- 
 •J17 ; Doc. Dig. <S=3NS.l 
 
 [TnistH <S=l.'4!t.| 
 
 Jdhnsttin. Ch.. doiihted whether the nistrii- 
 iiiciit was testamentary; he held. 1st. that the 
 plaiiililTs's reme<ly, if they had any, was against 
 the personal representative of S. (\ fnr the 
 money collected on the lumd ; I2d, that the de- 
 Uvery and loss of the instrument were not 
 proved. 
 
 [Ed. Note.— For other cases, see Trusts, Cent. 
 Dig. § 355; Dec. Dig. <®=>249.1 
 
 Wardlaw and Dunkin. CC. held that the 
 instrument was testamentary, and had been re- 
 v«)ked :— they thought the delivery and loss suf- 
 hcientlv proved. 
 
 Dargan. Ch.. doubted whether the instru- 
 ment was testamentary; he thought the delivery 
 proved prima facie, and held. 1st. that the jiroof 
 nf loss was iiisutlicient; lid. that plaintilTs's 
 remedy was a.i;ainst the personal representative 
 of ^>. C, and not against the defendant. 
 
 *453 
 
 ♦Before Johnston, Ch., at Marion. Febru- 
 ary, 1851. 
 
 Johnston, Ch. On the 7th of October, 1S43, 
 one Sarah Conner executed the following in- 
 strument, to wit: 
 
 South Carolina, Marion District. 
 
 To all whom it may concern, I, Sarah Con- 
 !\er, do hereby, in consideration of the natu- 
 ral love and affection which I bear to my 
 grandchildren, and otl>ers hereinafter men- 
 tioned, give the following property: 
 
 To Josephine Livingston and Sarah !■ rank- 
 lin Livingston, I give all the interest I have 
 in the estate of Joseph Livingston, — it con- 
 sisting principally of a bond for the pay- 
 ment of some fourteen or fifteen hundred dol- 
 lars, secured by a mortgage of nine negroes. 
 
 To Laura D. Conner and Sarah C. Conner, 
 viz: to Laura a feather bed and furniture, 
 one set silver teaspoons, and one silver hoop 
 and chain for scissors, and to Sarah. .Sec; 
 
 To my daughter I'icket. my wearing ap- 
 parel and my books: 
 
 To my daughter Mary Eliza Ticket, one 
 feather bed and furniture ; 
 
 And I hereby ai :p<dnt Samuel M. Stevenson 
 and E. B. Wheeler, trustees to this deed, 
 with the full understanding that the altove 
 propi'rty does not vest in another of the 
 (probably any of thei parties until my death. 
 
 Witness my hand and seal 7th of Oct. 1S4:>. 
 Sarah Conner, [L. S.J 
 
 Witness— M. C. Durant, O. 1'. Wheeler, E. 
 B. Wheeler 
 
 hanils of the defendant, Durant, as her agent. 
 The bill is against Durant, setting up a 
 claim to the said negroes, under the afore- 
 said instnuuent. on behalf of Josephine and 
 Sarah F. Livingston. 
 
 ♦454 
 ♦If the instrument is testamentary, it has 
 not been admitted t^t probate; and besides, 
 it is revoked by a will, executed by Sarah 
 Conner the loth of July, 1S44. which has 
 been admitted to probale. But the i)lai:UitTs 
 contend that it is not testamentary. I'Ut on 
 the contrary, that it is a deed, and is to be al- 
 lowed as su<-h, under the authority of Daw- 
 son V. Dawson, 2 Rice Eq. ."M. an<l Jaggers 
 V. Estes, 2 Strob. Eq. 34:5 (40 Am. Dee. 074.) 
 The lirst dithculty of the plaintifls is, that 
 the deed, if it be such, is not duly proved. 
 The original is not i)roduced ; and, in order 
 to iet in .secondary proof, it is necessary to 
 prove its loss, as well as its execution and 
 contents. The only witness to this point is 
 O. I'. Wheeler, who states that he saw it ex- 
 ecuted, and that it was subsctiuently deliver- 
 ed to him by E. B. Wheeler to be registered ; 
 and he refers to the copy on record for its 
 contents. This may suthce if the deed is 
 proved to" bo lost. But all that the witness 
 can say on that subject is, that a day or 
 two before the hearing, E. B. Wheeler told 
 him it was lost, and got him to assi.st him 
 to search for it, which search proved inef- 
 fectual. The proof of lo.ss is manifestly noth- 
 ing but the declaration of E. B. Wheeler. 
 
 Suppose this ditliculty overcome: the next 
 thing incumbent upon the plaintiffs, is to 
 snow that the instrument was intended as a 
 deed. An instrument purporting to be a deed 
 may have a present oiteration to i)ass the 
 right to property, though it provided tli.it the 
 enjoyment of the property shall be postponed 
 to a future time. 
 
 In Dawson v. Dawson and in Jaggers v. 
 Estes. it was held, that the posti)oning of 
 the enjoyment till the death of the donor 
 does not render the instrument testamentary, 
 it, upon its face, or fnun the circumstan<es, 
 it was intended to oiierate in prescnti, and 
 not to reiiiaiii ambulatory- 
 
 The difference betwen a deed and a will 
 is not exactly what it is state<l to be in 
 Welch and Kinard, Speers Eq. 250. It is 
 there intimated, that the proper definition of 
 a will is, the declaration of a party as to 
 what is to be do!ie with his jn-operty after 
 
 *455 
 his death. But ♦a better definition, is the 
 declaration of a party, made l)y an instru- 
 ment intended to be ambulatory and revoca- 
 
 Sarah Conner is now dead; but during her i ble, as to tiie disposition of his property aft- 
 life time, under proceedings in this court, a I er his death. A deed may declare how the 
 
 <£=Kor other eases see same topii; and KEY-NUMbEK iu aU Key-Numbered Digests and Indexes 
 
 187
 
 *455 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 property is to be enjoyed after tlie death of 
 the grantor, and such a deed is, according 
 to our decisions, as eft'ectuai as one which 
 gives present enjoyment. It is a deed and 
 not a testament, if the instrument is intended 
 to have a present and not a future opera- 
 tion ; if it is intended to pass tlie right in 
 presenti ; to be a perfected and executed con- 
 tract, — and not revocable or ambuUitory. 
 
 But here the witness says he heard notli- 
 ing from Mrs. Conner at the execution of 
 this paper, showing her intention in respect 
 to it. He saw her subscribe, and he and the 
 other witnesses attested. He says nothing 
 about tlie delivery. The paper itself does not 
 contain any thing on the subject of delivery. 
 
 Then the provisions of the instrument are 
 generally of a testamentary character. It is 
 not usual for persons to give their wearing 
 apparel while yet alive. Besides, the idea 
 that a right to the property is to pass pres- 
 ently is expi-essly negatived on the face of 
 the paper. Again ; does not the number of 
 attesting witnesses countenance the idea that 
 the paper was regarded as a will? These are 
 not all the difficulties of the plaintiffs. What 
 Is' given by this instrument is not the ne- 
 groes, but the bond A^ith the collateral se- 
 curity of the mortgage: a debt on Livingston 
 who was then alive. 
 
 The most that can be made of the paper is, 
 that it is an assignment of the bond. Mrs. 
 Conner subsequently collected the debt ; and 
 if the plaintiffs have any claims, it is against 
 her personal representative for money receiv- 
 ed to their use ; and perhaps to have the 
 slaves declared liable as collateral security 
 for the amount. The personal representative 
 is not before the Court, and it is not neces- 
 sary to say what right might be established 
 against iiim ; but I doubt whether Mrs. Con- 
 ner's estate could be made liable for the 
 debt collected by her, to parties who claim as 
 mere volunteers. 
 
 It is ordered that the bill be dismissed. 
 *456 
 
 *The complainants appealed, on the follow- 
 ing grounds: 
 
 1. Because the instrument of writing was 
 a deed and not a will. 
 
 2. Because O. P. Wheeler, a subscribing 
 witness, proved that it had been executed in 
 his presence ; that he afterwards, at the in- 
 stance of Edward B. Wheeler, the trustee, 
 who had it in his possession, recorded the 
 same in the Register's Office of Marion, which 
 was evidence of delivery. 
 
 3. Because the loss of the instrument was 
 proved by O. P. Wheeler, who searched with 
 his father, Edward B. Wheeler, amongst his 
 papers, and testified that it could not be 
 found ; and because the contents were fully 
 proved by the said O. P. Wheeler. 
 
 4. Because the aforesaid instrument having 
 conveyed a bond and mortgage, wliicli was 
 paid in part by the i)urchase of the negroes 
 sued for in this case, the negroes stand in 
 
 188 
 
 the place of the bond, especially as they were 
 mortgaged to secure its payment, and may 
 be followed in this Court as the property of 
 the complainants, to whicli they have a legal 
 title, having been purchased with their funds 
 and under the mortgage conveyed to them. 
 Their title is legal, not equitable merely, be- 
 cause their estate in the aforesaid bond and 
 mortgage is a vested remainder after the life 
 estate of Mrs. Sarah Conner the donor, which 
 life estate had terminated before this suit 
 was commenced. 
 
 5. Because their title being legal, the com- 
 plainants had a right to sue the holder of 
 the negroes alone for them, without niaking 
 the person, from whom or under whom he 
 holds, a party ; and because there was no ob- 
 jection made by the pleadings to v\-ant of 
 proper parties. 
 
 6. Because the circuit Chancellor having 
 indicated that the remedy of the complain- 
 ants is at law, against the personal repre- 
 sentative of Mrs. Sarah Conner, for money 
 liad and received to their use, in case the 
 aforesaid instrument be a deed, it is neces- 
 sary, in order to entitle the complainants to 
 proceed at law, that the decree of the circuit 
 
 *457 
 Chancellor should be reversed as *to the tes- 
 tamentary character of the said instrument; 
 otherwise such decree would be a bar at 
 law, as res judicata. 
 
 Miller, for complainants. 
 Phillips, contra. 
 
 JOHNSTON, Ch., announced the judgment 
 of the Court. 
 
 I must acknowledge that I am. in some de- 
 gree, shaken in my impressions as to the tes- 
 tamentary character of this instrument: but 
 not sufficiently, to enable me to declare the 
 decree, upon that point, erroneous. 
 
 But the other grounds upon which the de- 
 cree is put are sufficient to show its correct- 
 ness. 
 
 The gift is of the bond, as a debt, and of 
 the mortgage, — as an incident, — to enforce its 
 collection. 
 
 If, as is argued, the negroes were purchas- 
 ed by INIrs. Connor with the bond, (which is 
 not the case,) it may be true that a trust re- 
 sulted to the plaintiffs, to have the negroes 
 declared to stand as a substitute of the cap- 
 ital employed ; or to have the capital, itself, 
 at their election: but such a decree could not 
 be made, unless upon bill dii-ectly for that 
 purpose against the party who converted the 
 capital, or her legal representative. 
 
 The ground that the loss of the instru- 
 ment was not established, so as to let in sec- 
 ondary proof of the instrument, is, also, quite 
 satisfactory to me. The doctrine is not mjvel 
 or doubtful. All our decisions are one way 
 on the subject, from Sims v. Sims, (2 Mill, 
 225.) to Wardlaw v. Gray, (Dud. Kq. S5.) and 
 even down to the last term of this Court,
 
 WIIEKLER V. rHKAXT 
 
 *460 
 
 as may bo seen In the case of Gibson v. Mc- 
 Cully, not yet rejiorted. 
 
 The loss in this case depends exc-lusively 
 Upon the assertion of K. 15. Wheeler, one of 
 the plaintiffs in the eause; and unless the 
 fact of loss, unlike all other facts, is to be 
 made out by mere statements, there was no 
 foundation laid for li-ttint,' in secondary evi- 
 dence. The frauds that may be accomplished 
 by withhnldintr uriu'inal papers, and resorting; 
 to secondary jiroof, need not l>e suji;;ested. 
 The hardships com[ilained of, of shutting 
 out parol evidence, nidess upon n'.L'uIar i)roof 
 
 *458 
 
 of loss of written instru*meiits. would soon 
 be transferred to the shoulders of the oppo- 
 site party, if proof of the loss wen* dispens- 
 ed with. 
 
 I am of opinion that the decree should be 
 atiirmed. and the api»eal dismissed: and such 
 being the opinion of the majority of the 
 Court. (thou.u'h upon jrrounds siimcwhat dif- 
 fering.) it is so ordered. 
 
 WARDLAW. Ch. I concur in the judg- 
 ment of the Court in this case, on the ground, 
 that the instrument executed by Sarah Con- 
 nor was revocable, and in fact revoked. 
 
 It is settled in this State. l>y the deci.sion 
 of the Court of last resort, that personal es- 
 tate may be conveyed by deed, even without 
 the intervention of trustees, after a life es- 
 tate reserved by the grantor, if. upon con- 
 struction of the whole instrument, the inten- 
 tion be manifested to transfer the title pres- 
 ently and irrevocably, and to postpone noth- 
 ing but the enjoyment. In the question 
 whether a particular instrument is a deed or 
 a testament, the postponement of the enjoy- 
 ment of the estate by the donee until the 
 death of the donor, is a fact no longer con- 
 clusive, but still leading to the conclusion. 
 that the instrument is testamentary. The 
 force of this fact by itself, may be now over- 
 come by the context and general frame of the 
 instrument. 
 
 The instrument has the frame of a testa- 
 ment, rather than of a deed. It is divided 
 into separate clauses, by the lirst four of 
 which, distinct articles of property are given 
 to diflerent donees, and by the lifth and last, 
 trustees are aiipointed for its execution. It 
 has the number of witnes.ses indispensable in 
 a testament, but unnecessary and unusual in 
 a deed. It contains no internal evidenie of 
 delivery; a fact necessary to the exi.stence 
 of a deed, not of a testament. It de.scril»es 
 some of the subjects of gift in such general 
 terms, as might serve to pass one of the 
 class in a testament, but not to give present 
 title to specific articles, as 'one feather Ijed," 
 &c. ; several of the class iH'ing owned by the 
 donor. Aliove all. the instrument expressly 
 declares the intention of the donor, "that the 
 above property (bn-s not vest in any of the 
 parties until my death." The terms property 
 
 *459 
 and *vest, refer more directly to title than 
 to enjoyment, and in their connexion here, 
 imply strongly, that the donor did not mean 
 to part with any right beyond recall : and 
 the implication acquires increased vigor from 
 the use of the present tense, "docs not vest.' 
 which would not be naturally enqdoyed in 
 reference to the future event of enjoyment. 
 
 The sulijects of disposition in all the claus- 
 es of this instrument, except the tirst. are 
 more appropriately and more conunonly giv- 
 en by testament than by deed. One might 
 give by deed a remainder in "wearing ap- 
 parel,"' aftt-r a use for life, and then the 
 donee would be reipiired to distinguish the 
 specific articles given, from others of the 
 same kind subseiinently aciinirt'd by the ten- 
 ant for life; but it is nuich more reasomible 
 to conclude, that the donor in such case in- 
 tends to pass all projierty of this (h'scription, 
 with all its changes and accunnUations. as 
 it may exi.st at his death: and this can be 
 effected by a testament, which speaks at the 
 death of the donor. 
 
 Against all these circumstances nothing is 
 opposed, except the equivwal fact, that the 
 donor denominates the instrument a deed. 
 She may have done this ignorantly. or be- 
 cau.se it was her act, or because it had a seal; 
 and seals are commonly, yet unnecessarily, 
 used in testaments. 
 
 If it be decided that this insfrunient is tes- 
 tamentary, the bill must be dismissed. It is 
 only on the concession that it is a deed, that 
 the question of delivery can arise, or the 
 questions as to loss, and as to the operation 
 of the terms of gift, become important. 
 
 Considering the instrument a deed. I con- 
 clude there was suUicient evidence of deliv- 
 ery. From the pos.session of the instrument 
 by the person to whom the delivery should be 
 made, and the custody committed, delivery 
 sh«tuld be presumed, in the absence of any 
 countervailing evidence. 
 
 I think there was prima facie proof v( 
 loss. Our cases determine, contrary to the 
 practice of some of the States, that the wit- 
 nesses to prove loss, as preliminary to sec- 
 ondary evidence of the contents of an in- 
 strument, must be disinterested; and the 
 
 *460 
 ♦declaration of E. B. Wheeler, a plaintiff, 
 that he had lost this paper, was manifestly 
 incompetent. But search in the place where 
 a missing paper ought to be kept, although 
 this place may be amctng the papers of a 
 party, is not the declaratitm of the i>arty. It 
 is a substantive and material fact. Such 
 .search, if made with diligence and in good 
 faith and without success, is sutticient ground 
 for the presunqition of loss. (,I»rake v. 
 liamey, Rhodes & Co., 3 Rich. :!0 ; 1 (ireeul. 
 Ev. § 508; 1 Stark. Ev. .•!4'.l.) From the 
 nature of the fact it can seldom be proved 
 positively, or otherwi.se than by circumstai>- 
 tial evidence. Where the search has been 
 
 189
 
 *460 
 
 RICHARDSON'S EQUITY REPORTS 
 
 slight or collusive, or where there is reason f 
 to susriect the suppression of tlae original, 
 to gain some advantage from the resort to 
 secondary evidence of contents, the presump- 
 tion of loss should not be made. Nothing of 
 this sort is imputed here. Moreover, conclu- 
 sive proof of the existence and contents of 
 the paper is offered ; and the l^arty who 
 seeks to establish the loss, lias no interest in 
 the property in controversy. INIore ample 
 proof of loss than was given in this case, is 
 not practicable, except in rare instances, 
 where witnesses of the destruction of the in- 
 strument can be produced. 
 
 I express no tixed opinion as to the effect 
 of the terms of donation, under which this 
 claim is set up. "All my interest in the es- 
 tate of" a living person, may include all my 
 claims, by lien or otherwise, on his property; 
 and a gift of a "bond, secured by a mortgage 
 of nine negroes," may not only transfer the 
 debt, but assign tlie mortgage. The mort- 
 gagee at law, after condition broken, is the 
 owner of the chattels mortgaged. Wolf v. 
 O'Farrel, (1 Tread. 151.) Even before condi- 
 tion broken, he may maintain trover against 
 any person except the mortgagor. Spriggs v. 
 Camp, (2 Speers, 181.) In this court, as be- 
 tween mortgagor and mortgagee, the mort- 
 gage is regarded merely as security for the 
 debt. Bryan v. Robert, (1 Strob. Eq. 334.) 
 But as between mortgagee and his assignee, 
 if the former take the chattels in satisfaction 
 of the debt, and retain possession of them by 
 his agent, as in this case, I am not clear that 
 the assignee may not elect to proceed for 
 
 *461 
 the chattels themselves. *In such proceed- 
 ing, the mortgagee or his representative ought 
 to be a party, as materially interested in the 
 object of the suit; but here no objection was 
 made by the pleadings to the want of prop- 
 er parties. 
 
 DUNKIN, Ch., concurred. 
 
 DARGAN, Ch. In this case I concur in the 
 affirmation of the decree, and feel disposed 
 to express tlie grounds of my concurrence. 
 
 I think the evidence to prove the loss of 
 the deed, was insutiicient for that purpose. 
 Oliver P. Wheeler, (the son of the complain- 
 ant, Edward B. Wheeler.) proves that he was 
 called upon by his father to assist him in a 
 search for the instrument among liis papers. 
 He complied with the request, and the search 
 was made. The instrument was not found, 
 and E. B. Wheeler said it was lost. This 
 was only a day or two before the trial, and 
 was evidently a preliminary formula for the 
 introduction of the secondary testimony. 
 The first thing that strikes the mind as un- 
 satisfactory in this testimony, particularly 
 in the instance of a person having so many 
 papers and documents in his possession as 
 this complainant, is the probability that the 
 paper was misplaced and not lost. And that 
 190 
 
 is not the kind of loss, I apprehend, whicli 
 renders proof of the contents admissible. 
 
 But it is obvious, that the whole proof of 
 the loss rests entirely upon Edward B. 
 Wheeler's declaration to that effect. How 
 did the witness, (O. B. Wheeler,) know, but 
 that, at the very time of his making tlie 
 search, the other did not have the paper in 
 his pocket, or in some other secret place of 
 deposite, to which his attention was not in- 
 vited? I make this suggestion, not suspect- 
 ing in the slightest degree, that such was 
 the fact in this case ; but merely for the 
 purpose of illustrating a general principle. 
 Such chicanery might be resorted to in any 
 case, in which the party was unwilling, or 
 deemed it unsafe, to exhibit the original. 
 To admit such testimony, would be the mer- 
 est evasion of the rule, which prohibits a 
 party from being a witness in his own cause. 
 It would be better far, to admit his declara- 
 
 *462 
 
 *tion by affidavit, or his examination in 
 Court, with the right of cross examination, 
 than to,admit his statement out of Court to 
 a third party, unsupported by oath and un- 
 sifted by cross examination. 
 
 I admit the great difficulty of proving; the 
 loss of a paper in many cases ; and that the 
 argument for relaxing the stringency of the 
 proof in sucli cases is very strong. But to 
 this argument it may be replied, that the 
 stringency of the proof in such cases is 
 greatly relaxed, and that very slight evidence 
 of the loss, after satisfactory proof of the 
 existence of an instrument, is sulhcient. 
 But that is not the point here. The question 
 is simply, whether the declarations of the 
 party to a third person, accompanied by a 
 search which may be a mere sham, shall be 
 admissible. There may be evils and incon- 
 veniences growing out of the rule as I un- 
 derstand it to liave been settled by the prac- 
 tice of the Courts. But on the other hand, 
 the mischiefs which would result from allow- 
 ing a jiarty to manufacture his own evidence, 
 and to promulge it to the Court, through a 
 witness examined on the stand, and to be 
 used as his mouth-piece, are infinitely great- 
 er. After all, when a party fails, for the 
 want of the very slight proof necessary to 
 establish the loss of a paper, he but falls in- 
 to a category with the numerous class of in- 
 nocent and unfortunate persons, who have 
 just rights, but lack the necessary proof to 
 sustain them in Court. 
 
 On the fourth ground of appeal, I concur 
 with the Chancellor in the views which he 
 has expressed in his circuit decree. If the 
 instrument upon which the complainants rest 
 their claim, were to be construed as having 
 the operation of a deed, it could only be 
 considered as an assignment, (after a life es- 
 tate in the donor,) of the debt due to the 
 donor by Joseph Livingston ; or rather of 
 the fund secured by the bond and mortgage
 
 WHEELER V. DURAXT 
 
 nc'y 
 
 executed to her l).v Liviiitrstoii. She eoiihl 
 not liave intended to dehar herself from the 
 collection and use of the money in her life 
 time. The mortj,'ai.'e was only an incident of 
 the debt, auxiliary but not necessary to its 
 enforcement. Thi' projierty <if .loseidi Liv- 
 inj^ston was afterwards sold, under a decree 
 
 *463 
 of the Court of *E(iuity, with the view of 
 marshallin<; the assets. The nej^roes mort- 
 ga^'ed to Mrs. Connor were s(dd at this .sale, 
 but not under a decree of foreclosure; and 
 Mrs. Connor became the iiurchaser. In mar- 
 shalling the assets, the proceeds of the sale 
 of the mortgaged negroes were allowed her 
 on account of her prior and special lien. 
 Mrs. Connor is dead, and the negroes have 
 passed into the possession of third per.sons, 
 against whom the complainants have insti- 
 tuted this suit. 1 agree with the Chancellor, 
 that if the complainants have any claim, it 
 is against the personal representatives of 
 Mrs. Connor, (wlio are not parties,) for so 
 much money as was due on the bond of 
 Livingston at the time of its supposed as- 
 signment. 
 
 The most dilhcult part of this ca.se, is the 
 construction of the instrument of the 7th 
 October. 1843. Is it a testament or a deed".' 
 And first, was it delivered/ E. B. Wheeler, 
 who was one of the trustees nonnnated by 
 the instnuntnt, was in possession of it, and 
 had it recorded. This I think, according to 
 the decisions, amounted to prima facie evi- 
 dence of its delivery. But is it a testament 
 or a deed? When by the terms of an instru- 
 ment, duly executed and delivered, it appears 
 that the party who executes it, intends to 
 transfer a present irrevocable right in a 
 chattel to be vested in possession at a future 
 time, (a present right to a future enjoyment.) 
 our Courts will give legal ethcacy to such in- 
 tention. This principle is now too st)lemidy 
 adjudged to be brought into question. But 
 the question here is. wiiether thi* instrument 
 executed by Mrs. Coinior comes within the 
 foregoing definition. This is a point which, 
 in my judgment, is not of easy stdntion. The 
 in.'Jtrument is Janus-faced. It has two as- 
 l)ects. When I look at it in one aspect, it 
 •»eems to be a deed. When I regard it in an- 
 other point of view, it looks like a w'ill. And 
 it cannot be both. 
 i When an instrument is propounded as a 
 will, there are three modes or kinds of jiroof, 
 by which its testamentary character may be 
 tested. One of these is to look to the de- 
 clared intention of the i)arty executing it, as 
 expressed upon the face of the paper. By 
 another mode or test, we may hear the parol 
 
 *464 
 declar*atioiis of the supposed testator, wheth- 
 er it was his purpose to make a will. The 
 parol declarations must be a part of the res 
 gestfe, and of course must be satisfactorily 
 proved. I'nder this class, there may, and 
 have been, cases, in which an instrument, in 
 
 the form of a peual bond, or a simple promis- 
 sory note, executed according to the forms 
 prescribed by law, have bei'ii proi»ounded and 
 e.stalilished as testamentary papers. And 
 again, we may look to the nature of the dis- 
 positions of the property, which the instru- 
 ment affects to make, to asc»>rtain wliftber 
 the party executing it, intended to convey 
 irrevo<ably a i)resent right or estate. In 
 this case, there are no parol declarations or 
 attendant circumstanc«'s. to throw any light 
 upon the (luesllon. When we look at the 
 language of the paper, we discover that Mrs. 
 Connor herself calls it a deeil. It professes 
 upon its face to be a d«'ed. This is a strong 
 point in favor of the appellants. It is the 
 strongest, and in fact the only strong point 
 in their favor. It is dilficult to get over it. 
 When looked at in this aspect, the paper 
 appears to be a deed. But upon a fur- 
 ther analysis, there are cogent reasons for 
 doubting whether ^Irs. Connor did not use 
 the term '"deed" in a loose sen.se. and with- 
 out regard to its preci.sc and technical sig- 
 nification. She has no where expressly or 
 impliedly declared a i)urpose to convey a 
 present right or estate, except so far as 
 such purpose may be implied from her call- 
 ing the instrument a "'deed.' On the con- 
 trary, she declares it to be the full un- 
 derstanding, that the property was not to 
 ve.st in the donees until after her death. If 
 we look to the subjt?ct matter of one of the 
 donations, -the doubt is increased. She gives 
 to one of her daughters her wearing apparel. 
 This looks as if she was making a will. 
 These were articles consumable in their use. 
 Did she intend to lay asioe the wearing ap- 
 parel which she then had on hand, to await 
 the remainder which she had created therein, 
 after the termination of the life estate which 
 she had reserved to herself.' < >r did she in- 
 tend to use them, and wear them out. if 
 need be, and leave to her daughter such of 
 her wearing apparel as she had on hand at 
 lier death, whether they were of the old 
 
 *465 
 stock, or subsetpiently ac*qnired? Subse- 
 quently acquired apparel would have jiassed 
 under a will, but could not have passed un- 
 der a deed. 
 
 Such are the various .-ind conflicting as- 
 pects which this paper wears. I h;ive been 
 myself unable to arrive at any conclusion, 
 satisfactory to my own judgment, as to the 
 true construction of this most equivocal in- 
 strument. My nnnd as to this (juestion is in 
 a state of etiuipoise. The appeal, so far as 
 m.v individual judgment is concerned, ma.v be 
 decided by my concurrence in the decree on 
 the other grounds, as already in(licate<l. If 
 forced to decide this (luestion of construc- 
 tion. I should resolve my doubts, by adjudg- 
 ing again.st the complainants as a<-tors in the 
 case, and in that character bound to estab- 
 lish the atfirniative jtroiiosltiou on which 
 their alleged rights depend. 
 
 Appeal disndssed. 
 
 191
 
 *465 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 3 Rich. Eq. 465 
 
 CHARLES T. BROWN aud Wife v. W. S. 
 SMITH, PETER CUTTINO and Others. 
 
 BENJAMIN F. HUNT, Assignee, v. W. S. 
 SMITH, PETER CUTTINO and Others. 
 
 SAME V. HENRY CUTTINO and Others. 
 
 W. C. SMITH and Others v. BENJAMIN F. 
 HUNT and Others. 
 
 BENJAMIN F. HUNT v. JAMES SMITH 
 
 and Others. 
 
 (Columbia, May Term, 1S51.) 
 
 [Injunction <©=>163.] 
 
 Under peculiar circumstances, and after a 
 lapse of sixteen years, an injunction, to stay 
 proceedings at law, dissolved, irrespective of 
 any consideration of the merits of the questions 
 at issue between the parties. 
 
 [Ed. Note.— For other cases, see Injunction, 
 Cent. Dig. § 3U8; Dec. Dig. <S=5l63.] 
 
 [Equity <©=367, 75.] 
 
 A claim may be too stale for investigation 
 in a Court of Equity, even where it may not 
 be subject to the bar of the statute of limita- 
 tions, or to those presumpti(ms which arise from 
 the lapse of twenty years: but a claim will not 
 grow stale, under the action of the Court, and 
 while it is the subject of hot litigation. 
 
 I Ed. Note. — For other cases, see Equity, Cent, 
 Dig. §§ 191, 227; Dec. Dig. <©=»87, 75.J 
 
 [Assignmenis <@=>104; Partnemhip <g=>lS3.] 
 
 An assignee of one copartner's share in the 
 property and assets of the firm is liable, even 
 without notice, to all the equities of his as- 
 signor growing out of the copartnership; but 
 a decree against the assignee on account of 
 
 *466 
 such equities, is a decree *in rem, — it operates 
 upon the property assigned, aud a fi. fa. can- 
 not be issued upon it against the assignee. 
 
 [Ed. Note. — For other cases, see Assignments, 
 Cent. Dig. § 1S3; Dec. Dig. (©=3104; Partner- 
 ship, Cent. Dig. § 323 ; Dec. Dig. (©==3183.] 
 
 [Interest <®=22.] 
 
 Upon demands bearing interest at law, the 
 Court of Equity is, it seems, bound to allow in- 
 terest: but where the demand does not bear in- 
 terest at law, interest will or will not be al- 
 lowed according to the equity of the case, 
 
 [Ed. Note. — For other cases, see Interest, 
 ent. Dig. § 48; Dec. Dig. <©=>22.] 
 
 Ce 
 
 [Interest (©=^326.] 
 
 Where there was great delay in prosecuting 
 a claim not bearing interest at law, the Court 
 refused to allow interest. 
 
 [Ed. Note. — Cited in Pettus v. Clawson, 4 
 Rich. Eq. 104. 
 
 For other cases, see Interest, Cent. Dig. § 9; 
 Dec. Dig. (©=^2(J.j 
 
 [AtJpeal and Error <®=>8.32.] 
 
 There are but two grounds upon which a 
 petition for a re-hearing will be entertained, 
 (1st.) for error of law apparent on the face of 
 the decree : and any part of the record may be 
 resorted to for the purpose of making such er- 
 i-or manifest: (2) fur newly discovered testi- 
 mony ; and this testimony must be important, 
 and must materially vary the case made ; it 
 must not be cumulative as to the evidence which 
 was before the court upon the trial ; and it 
 must be such as the party petitioning for a re- 
 hearing was not aware of before the trial, and 
 
 could not by proper diligence and enquiry have 
 discovered. 
 
 I Ed. Note.— Cited in Hill v. Watson. 10 S. C. 
 27(); Durant v. I'hilpot, 16 S. C. 125: Ex 
 parte Dunovant, Id., 302: Yates v. (iridley, 
 Id., .501 ; Ex parte Carolina National Bank, 50 
 S. C. 19, 33 S. E. 781. 
 
 For other cases, see Appeal and Error, Cent. 
 Dig. § 3215; Dec. Dig. <©=>832.] 
 
 [Appeal and Error (®=:>S.32.1 
 
 For alleged error of judgment, on the part 
 of the Court, in deciding upon an issue of fact, 
 a petition for a re-hearing will not lie. 
 
 [Ed. Note. — Cited in Ex parte Dunovant, IG 
 S. C. 302. 
 
 For other cases, see Appeal and Error, Cent. 
 Dig. § 3215; Dec. Dig. <®=>832.] 
 
 [This case is also cited in Ex parte Knox, 17 
 S. C. 212, as an illustration of the juris- 
 diction of Court of Equity Appeals on peti- 
 tion for reopening judgment.! 
 
 The original proceeding out of which the 
 above causes grew, was a bill filed in George- 
 town, February, 1822, by C. F. Brown and 
 wife, in right of the latter, sole heir and dis- 
 tributee of George Smith, surviving partner 
 of George aud Savage Smith against W. S. 
 Smith and Peter Cuttino, administrators of 
 George Smith, and W. 'C. Smith and others, 
 heirs and distributees of the other partner. 
 Savage Smith, claiming an account of the 
 partnership estate from the administrators 
 of George Smith, the surviving partner — of 
 the demands of the joint estate, and of the 
 partners one against the other ; and particu- 
 lariy setting up a demand on a debt, alleged 
 to be due for advances made b.v Josiah 
 Smith, said to have been intended by him as 
 so much advanced for his daughter, the wife 
 of George Smith, aud mother of ilrs. Brown. 
 For this, it was stated, a bond was to have 
 been given by the partners, but that it was 
 never executed. — This bill also charged, that 
 certain endorsements of G. Smith were on 
 account of the firm ; and alleged the joint es- 
 tate to consist of two plantations on Pee 
 Dee ; a tan-yard in Georgetown ; from three 
 to four hundred negroes ; two plantations ou 
 Goose Creek ; a tract of land on Cat Island, 
 and other estates of less value, besides the 
 debts due the concern, &c. To which bill the 
 administrators put in their answer, plea and 
 
 *467 
 demurrer — in*sisting that all claim on ac- 
 count of the debt due Josiah Smith, was ex- 
 aminable at law — that they had no posses- 
 sion or interest in the premises, making them 
 answerable for the tan-yard ; aud answered, 
 admitting the partnership; declaring that 
 they were ready to account, but that there 
 were large debts due by the concern ; one 
 of which, a debt due Bird, Savage & Bird, 
 they had compromised very advantageously, 
 and would aciiuiesce in a decision, if the.v 
 could be relieved from their responsibility to 
 creditors. They further denied, that the lia- 
 bility of George Smith, as endorser, was ob- 
 ligatory on the joint estate, and submitted to 
 the order of the court. 
 
 192 
 
 <g=»For other ca.ses sec same tdpic and KEY-NUMBER in aU Key-Numbered Digests and Indexes
 
 BROWN V. SMITH 
 
 *469 
 
 In February, 182r», a consent der-ree was 
 made in the premises hy Cliaiicellor De- 
 Saussure, ascertaining tlie riu'iits of tlie par- 
 ties as far as its provisions extended, in the 
 following terms. 
 
 DeSanssnre. Cli. "On liearimr the report 
 of tlie connnissioner : — It is ordered and de- 
 creed that tlie plantations on I'ee Dee. the 
 land on Cat Island, and the lands on (Joose 
 Creek, and the negroes on the plantations on 
 Tee Dee, and also the ne;;roes now hired to 
 Charles T. lirown, be adjudged the copart- 
 nership jiroperty of Cieoi-fie and Savage 
 Sniitli, and liable to the payment of the debts 
 of the concern, to be distributed and parti- 
 tioned, the one moiety to the heirs at law of 
 Savage Smith, and the other moiety to the 
 child of (Jeorge Smith, who has married with 
 Charles T. Brown. As the administrators of 
 the estate are not entitled to the real es- 
 tates of the dec«'ased co-partners, it is but 
 right that the same should be forthwith par- 
 titioned, except so much as ma.v be neces- 
 sary to pay the debts; and as the negroes 
 now oiT the I'ee Dee plantations, are neces- 
 sary to their cultivation — it is ordered that 
 the said plantations and negroes be partition- 
 ed and divided between the complainants, 
 and tlie heirs and distributees of Savage 
 Smith, and they are respectively decreed to 
 take each one moiety of the said plantations, 
 together with the negroes, crop and stock, 
 the same to be equally divided, so as to give 
 to each, one entire plantation, including high- 
 land and marsh; and the negroes to be di- 
 vided as nearly as possil)le into two gangs, 
 and distributed in families. The plantations 
 
 *468 
 *and negroes to be allotted by lot. one to the 
 complainants, and one to the heirs of Sav- 
 age Smith ; the part or share of each to 
 remain liable to the payment of any ali- 
 quot proportion of the debts, and to the 
 linal decree, upon the mutual demands of 
 tiie complainants and defendants. It i.s 
 further ordered, that the administrators do 
 apply all the monies they have now on 
 hand, toward the payment of the amount 
 that may be agreed upon as a compromise 
 tor the claim of Bird, Savage & Bird ; and 
 to insure the payment of that claim, it is 
 ordered and decrectl that the commissioner 
 shall ap|ily to that purpose, the tirst monies 
 that may be made from the debts due the 
 estate, and the .sales of property hereinaft- 
 er apinopriated to the payment of the debts 
 of the estate. In relation to the remain- 
 ing di'bts of the estate, the same shall be 
 equally divided, as near as may be, between 
 the complainants and the heirs of Savage 
 Smith, and the property liert'by ordered to 
 be delivered to each, shall stand as a se- 
 curity for the payment of an eipial portion 
 of the debts. And to enable the resi)ec- 
 tive jtarties to pay the same — it is ordered 
 and decreed, that the commissioner shall 
 sell the lands ou Cat Island, for such pro- 
 portion of cash, not exceeding one-third, at> 
 3 IticH.Eci.— 13 
 
 he may judge most conducive to the inter- 
 est of the estate, and the remainder, upon 
 such credit, not exceeding five years, as he 
 in like manner may think prudent. Also, 
 the lands of the estate on Goose Creek, and 
 the remaining negroes of the estate. lie 
 shall also proceed to collect, without delay, 
 all the debts due to the estate, and to this 
 end shall use all legal process, for enforc- 
 ing the i)aynieiit thereof; and alter lirst 
 paying the compromise with l?ird. Savage 
 & Bird, as aforesaid, shall apply the funds 
 .so raised, in the liciuidation in equal pro- 
 portions of the debts adjudgi'd to be paid 
 by the complainants and tlie defendants, the 
 heirs of Savage Smith. Tlie surplus shall 
 be retained, subject to the final order of the 
 Court, in relation to the mutual claims of 
 the itarties. It is further ordered, that the 
 commissioner do examine and report on the 
 several accounts of the complainants an<l de- 
 fendants with the estate. It is ordered and 
 
 *469 
 decreed, that *any personal lialtiiities as- 
 sumed by the administrators be discharged 
 by the distributees. 
 
 "I have consented to this decretal order for 
 the division of the estate before the payment 
 of debts, and directing that each division 
 shall bear its aliquot part of the debts, ou 
 the ground, that the estate is very large, and 
 the property reserved for the payment of 
 debts is veiy considerable, and greatly more 
 than sutKcient to pay the debts." 
 
 In conformity with this decree, commis- 
 sioners were appointed to divide and allot 
 the plantations and negroes on I'ee Dee, be- 
 tween the distributees of the two partners. 
 The commissioners made their division and 
 allotment ; by which the plantation called 
 Cripps, with negroes. &c. fell to the heirs of 
 Savage Smith; and that called Richfield, 
 with negroes, &c. fell to the heir of Ceorge 
 Smith. They submitted their report accord- 
 ingly, by which it further appeared, that 
 there was an excess of value in the portion 
 assigned to the heir of Ceorge Smith, amount- 
 ing to twenty-five or twenty-six hundred dol«- 
 lars, which was to be adjusted, to render the 
 portion of each e<iual. This return and re- 
 port was confirmed by a decretal order, in 
 February, 1S12S. by which it was directed that 
 the portion allotted to the parties, be held 
 by them, respectively, in severalty, "subject, 
 nevertheless, to the specific liens contained in 
 the former decretal order" — and that the re- 
 port and documents, &c. be enrolled as part 
 of the decree. 
 
 About this time. Brown and wife, by lease 
 and release, dated 10th and 11th February, 
 1SL'.">. conveyed and assigned to Benjamin F. 
 Hunt, all their interest in the plantation al- 
 lotted to them; also all their claim and inter- 
 est in the joint estate of George and Savage 
 Smith, and their interest in the demand of 
 Josiah Smith against the said firm ; subject, 
 however, to "the debts due and owing by the 
 
 193
 
 »469 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 said firm, and to the accounts between the 
 parties interested therein, and the final ad- 
 justment of the co-partnership and accounts." 
 The deed refers to and recites the decree of 
 1825, as part of the title, and provides "that 
 he, the said Benjamin E. Hunt, shall hence- i 
 
 *470 
 forth stand and be in the place and *stead of | 
 the said Charles T. Brown and Sarah E. his 
 wife, in the adjustment and settlement of 
 said co-partnership estate and effects, real 
 and personal, the said Charles T. Brown and 
 wife reserving to themselves the separate in- 
 dividual estate of the said George Smith;" 
 and further, that the "said Benjamin F. 
 Hunt, henceforth standing and being in the 
 place of the said Charles T. Brown and Sa- 
 rah E. his wife, and of each of them, in the 
 settlement and adjustment of the said co- 
 partnership estate and effects; he, the said 
 Benjamin F. Hunt, in the said settlement and 
 adjustment of the said co-partnership estate 
 and effects, real and personal, and in rela- 
 tion to the said assignment of the said Josiah 
 Smith, being entitled to all the rights, privi- 
 leges, demands and claims, and subject to all 
 the duties, obligations and responsibilities of 
 the said Charles T. Brown and Sarah E. his 
 wife, and each of them, in the final settle- 
 ment, adjustment and division of the said co- 
 partnership estates and eft"ects, real and per- 
 sonal." 
 
 After this, the assignee of Brown, by the 
 order of the commissioner, received from W. 
 S. Smith the balance admitted to be in his 
 hands as administrator, belonging to the part- 
 nership estate, ($5,476.79); also from the 
 sheriff of Charleston, another sum belonging 
 to the said estate (.$40.3.56); and from Rave- 
 nel & Stevens, another sum (.$.344.21) then in 
 their hands; and it was alleged that he re- 
 ceived other sums due the said estate from 
 other quarters. On the 26th February, 1826, 
 at a sale made by the commissioner, of the 
 negroes belonging to the joint estate, ordered 
 to l)e sold by the Chancellor, the assignee, B. 
 F. Hunt, purchased to the amount of $13,553, 
 giving his receipt as assignee of Brown and 
 wife for one moiety (9,500) of the whole net 
 amount sales, and his bond to the commis- 
 sioner, secured by mortgage, for the balance 
 of his purchase (4,053). This bond the com- 
 missioner assigned to the representatives of 
 Savage Smith's estate, as cash, for so much 
 of their share of the proceeds of the sale. 
 
 By a decretal order, April Term, 1826, the 
 commissioner was directed to divide the oth- 
 
 *471 
 er debts due by the partnership, be*tween the 
 distributees of each partner ; and to provide 
 for the compromise debt of Bird, Savage & 
 Bird, by loan or otherwise, assigning the said 
 debt and judgment as collateral security; 
 and it was ordered that such judgment, when 
 paid, should become the property of the joint 
 concern, and be held for the use of the joint 
 estate. On the 20th April, 1826, accordingly, 
 194 
 
 the commissioner reported a division of the 
 other debts as ordered, and the report was 
 confirmed by the Chancellor. 
 
 By a decretal order of the 6th February, 
 1828, it was ordered that the commissioner 
 take the accounts of the administrators, with 
 the joint estate, and the estate of the sur- 
 vivor — that W. S. Smith have leave to pass 
 his accounts before the Master in Charleston, 
 and further, "that the account and claims of 
 the representatives of George Smith and of 
 Savage Smith, respectively, on eaili other, be., 
 and hereby are, referred to tlie said commis- 
 sioner, to examine and report thereon." The 
 debt of Bird, Savage & Bird remaining still 
 unpaid, and execution being threatened on the 
 same, a loan was eft'ected (the bond of the 
 assignee, Hunt, being assigned as collateral 
 security,) and the balance of that debt paid 
 off by the representatives and distributees 
 of Savage Smith's estate. This loan was 
 afterwards paid, and the bond returned tc 
 them. By a decretal order, dated February, 
 1832, entitled, Hunt, assignee of Brown v. 
 Administrators of George and Savage Smith 
 and the heirs of Savage Smith, it was or- 
 dered, that no claim not previously rendered 
 against the estate be deemed valid, as the 
 time allowed had long since expired — that 
 the sheriff" pay over the surplus in his hands, 
 from the sale of the Goose Creek lands, to 
 the commissioner, to be applied according to 
 the former orders of the Court, and that 
 "creditors be compelled to make any de- 
 mands they may have, in this Court." 
 
 In February, 1833, the assignee of C. T. 
 Brown and wife, filed his bill of supplement 
 and revivor, and purporting to be in substi- 
 tution of that which had been filed by Brown 
 and wife, in 1S22. This bill recited the pre- 
 vious bill filed by Brown and wife, against 
 the surviving partner, George, and the dis- 
 
 *472 
 tributees *and heirs of the deceased partner, 
 Savage Smith — and the charges in said bill — 
 the partnership of George and Savage Smith 
 ■ — that large advances had been made to the 
 firm through George by Josiah Smith, intend- 
 ed for the benefit of his daughter, the wife of 
 George — that it had been purposed to give a 
 bond of the firm, but that this had never 
 been executed — that on the death of his said 
 daughter, leaving an only child, Sarah, mar- 
 ried to Brown, the said Josiah Smith had as- 
 signed the said demand to the said Sarah, his 
 grand-daughter; and Brown and wife had 
 assigned it to the present complainant — the 
 partnership and residence of George and Sav- 
 age — and their property — that endorsements 
 had been made by George in his own name, 
 for the benefit of the firm. That complain- 
 ants had prayed a full settlement of the af- 
 fairs of the concern, and particularly of their 
 demand in right of Josiah Smith. Tliis bill 
 further recited the defence made by the ad- 
 ministrators as before stated, resisting the 
 claim of Josiah Smith denying all interest
 
 inioWN' V. SMITH 
 
 »475 
 
 and coiitml in the tan-yjinl — adiiiittiiisi the 
 partnership, luit deiiyin;; tliat tlie paituership 
 property was liable for tlie iiidivithial en- 
 dorseun'iit of (Jeorjie Sndth. and dt'i hiring 
 themselves ready to account. iVc 
 
 This supplemental hill further ch:ir;:cd, 
 that the idea and demurrer of tlie adnnnis- 
 t raters were never decided, hut that a decree 
 was made in the case by consent, (as altove 
 .set forth.) and the lands and nejrroes on 
 I'ee iJee divided by connnissioncrs accord- 
 ingly, an account directed between the par- 
 ties, and a sale of the residue of tlie partner- 
 .<:hip estate; that by the allotment, the plan- 
 tation called Cripps. with the negroes, was 
 set apart to the distributees of Savage Sndth, 
 and IJithficld. with the nezroes, to ('. T. 
 r.rown and wife, who entered upon the said 
 plantation, and were seized of it in severalty; 
 and refers to the records, reports and pro- 
 ceedings of the Court. 
 
 The bill further t-harfies. by way of supple- 
 ment, that in this situation, I?rown and wife 
 conveyed and assigned to the complainant, 
 (B. F. Hunt.) uot only the said plantation 
 and negroes, but all their interest and claims 
 
 *473 
 on the co-partnership estate, as *well in their 
 own right, as what they had by assignment; 
 and claimed that the said assignee was "sub- 
 stituted completely in the place and stead of 
 tlie said complainants in the said bill of 
 complaint." The bill further sets forth, the 
 sale by the commissioner of the partnershii* 
 negroes, the purchase by the complainant, his 
 receipt given for one half of the purchase 
 money and bond for the residue; that his ob- 
 ject in doing so, was merely to enable the com- 
 missioner to close his sales, in the confidence 
 ttiat what was due to him. as assignee of .losiah 
 Smith, and of the share of Brown in the es- 
 tate, would be a good discount to the said 
 bond. That he had Hied a statement of his 
 demand with the commissioner, and endeav- 
 ored to procure a reiiort on that claim and 
 the accounts geiieriilly. Imt had not succeed- 
 ed. The bill again states the assignment of 
 .Tosiah Smith's claim to the complainant; 
 that a balance will be found due on a settle- 
 luciit of accounts, foi- advances made by the 
 partnership to support the family of Savage 
 Smith; and claims the benefit of the amount 
 due on .Tosiah Smith's claim, as a set oft' 
 to his bond; bill furtlier charges, tint this 
 bond has been sued at law. by IVter (^ittino, 
 administrator of Savage Snnth. That com- 
 plainant has complied with th(> decretal or- 
 der of the ("haiicellor. by assuming a moiety 
 of the i)artnership debts; claims the beiielit 
 of the decree of 1X25, "by which the shares 
 of complainants and defendants, were de- 
 clared to be mutually liable for the balance 
 that may be found due on a general account 
 of the partnership estate." 
 
 Prays a revival of the ori-inal suit: — 
 That the adiuinistratcn-s, Cuttino and Smith, 
 and the distributees of Smith, may answer 
 
 and come to nn nccount of the iiartnership 
 estate, including a house and lot, and t;in- 
 yard. in (Jeorgetown. That the liahince 
 found line complainant may be paid him, 
 and that ruttino may be enjoined from pro- 
 ceeding at law in the meantime. 
 
 Aftt'r this bill was tiletl, and before any 
 answer was put in. I'eter ("uttino died, leav- 
 ing Henry ('uttino his executor; and in 
 January. 1n.'!4. the assigmu'. li. 1'. Hunt, 
 tiled a bill against Henry Cuttino, as ad- 
 ministrator of I'eter, and the Bank of the 
 
 *474 
 ♦I'nited States, to whom the b(»nd given to 
 the commissioner had been transferred, by 
 I'eter Cuttino. as collateral .security for a 
 loan to pay off the compromise debt. This 
 bill referred to the previous proceedings and 
 claims of comi»lainant — stated that IVter 
 Cuttino had been enjoined from putting the 
 bond in suit — but that he was dead, and it 
 was now put in suit by the United States 
 liank. Prayed a revival of the preieding 
 causes against Henry Cuttino. to make the 
 estate of his intestate liable to the accounts 
 which had been prayed against him in his 
 lifetime: an account against his intestate, 
 and an injunction to restrain the Bank from 
 suing on the bond of complainant. 
 
 On the death of Peter Cuttino. former ad- 
 ministrator of Savage Smith, Wm. C. Smith 
 had administered on his. Savage Smith's, 
 estate. 
 
 In September. W. S. Smith, surviving ad- 
 ministrator of George Smith, and the dis- 
 tributees of Savage Smith, put in their an- 
 swer to the bill of the assignee Hunt The 
 former admitted the hrst bill of Brown and 
 wife, as stated in the assignee's bill ; the 
 defence and proceeding under it iu» there 
 .stated — a sale by lirown and wife to coni- 
 l)lainant, of all their interest in the partner- 
 ship estate, subject to the debts, &c. ; the di- 
 vision of the property on I'ee Dee; refers 
 to the decree of Lsl'5; states that he had ef- 
 fected an advantageous compromise of the 
 debt of Bird, Savage and liird; and insists 
 that, by the decree of IMio. the aftairs of 
 the estate were wholly taken out of the 
 hands of the administrators, and placed un- 
 der the direction and control of the Court ; 
 relies on the clause, ordering the distribu- 
 tees to discharge any pt'isoual responsibili- 
 ties assumed by the administr.-itors. States 
 that ever .since the commissioner has acted 
 as receiver, and no part of the estate has 
 been received by the defendant. That the 
 balance which remained in defendant's hands. 
 (.•<r»,lT('>.T".M was, on LHith November. 1S'_',"(, paid 
 to the complainant, by order of the commis- 
 sioner; that defendant then exhibited his 
 account with the estate, to conipbiinant, and 
 has never since intermeddled with the af- 
 fairs of the estate; and tiles a copy of his 
 last act, and receipt of the balance appear- 
 
 *475 
 ing thereby from eomplaiu*ant, with his an- 
 
 lt>5
 
 *475 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 swer. Further states, that since their as- 
 signment by Brown and wife to complain- 
 ant, the latter has had the chief management 
 and control of the estate of the partnership, 
 defendant never intermeddling therewith, 
 but considering himself discharged from all 
 further liability as administrator; that since 
 the original bill, his co-administrator, Peter, 
 has departed this life, &c. 
 
 The other defendants, children and dis- 
 tributees of Savage Smith, admit the part- 
 nership and the death of their uncle and 
 father, without division or settlement; that 
 they have heard of the pretended assignment 
 made by Josiah Smith to his granddaughter, 
 wife of C. T. Brown; but deny that said 
 Josiah had any claim against the joint es- 
 tate of George and Savage Smith, and deny 
 the benefit pretended to be drawn from said 
 assignment ; that on the contrary, George 
 expended considerable sums belonging to the 
 partnership estate, in supporting the estab- 
 lishment of Josiah Smith; insist that if 
 Josiah Smith did advance any sums to 
 George, it constituted a personal demand 
 against himself, and not against the partner- 
 ship, and deny all liability of the partner- 
 ship to Josiah Smith or his assignee, the 
 complainant; and for themselves and their 
 infant co defendants, rely upon the statute 
 of limitations as if pleaded. Admit the as- 
 signment of Brown and wife to complain- 
 ant, of their claims and interests in the part- 
 nership estate, but subject to the debts and 
 mutual demands of the parties, &c., "mean- 
 ing the final settlement between the repre- 
 sentatives of the said George, and the rep- 
 resentatives of the said Savage Smith." 
 That thereby, the complainant was put pre- 
 cisely in the place of the said C. T. Brown 
 and wife, and bound to make good all claims, 
 which those representing the estate of Sav- 
 age Smith might have against those repre- 
 senting the estate of George Smith, by rea- 
 son of the partnership property, &c. That 
 from the time of the assignment, complain- 
 ant has had the chief management of the af- 
 fairs of the estate, &c. Admit the division 
 of the estate in 1825, under the decree, pro- 
 viding that each share shall remain liable 
 to the debts, and final decree upon mutual 
 
 *476 
 demands ; and insist *that they would not 
 have consented to a division upon any other 
 terms, as Brown and wife had previously i*e- 
 ceived large sums of money from the part- 
 nership estate, for which he was bound to 
 account on a final division, and for which 
 complainant, as his assignee, is bound to 
 account ; that said sums were so charged, 
 in the administrator's account submitted to 
 complainant. 
 
 Admit the sale by the commissioner, of 
 the reserved negroes, &c., but state that the 
 proceeds, instead of being applied to the 
 debt of Bird, Savage & Bird, went in great 
 part into the hands of the complainant. 
 196 
 
 State that while it was supposed the compro- 
 mised debt would be paid, the renuiining 
 debts were apportioned, and believe the same 
 have since been paid or arranged. Further 
 state, that on account of the delay in pay- 
 ing the compromised debt of Bird, Savage & 
 Bird, their agents and attorney threatened 
 to issue execution for the whole amount ; 
 and defendants were obliged to borrow mon- 
 ey to pay off this debt, which they did in 
 1826, to the amount of .$13,820.26; and state 
 in addition, that the compromise debt was 
 on an individual debt of George Smith, being 
 on a bond which only bound him, and his 
 separate share of the estate; defendants fur- 
 ther charge liability on the compUiiuant, as- 
 signee of Brown, for large sums of money 
 received by him, complainant, belonging to 
 the partnership estate — particularly an 
 amount due the partnership, by R. F. With- 
 ers ; also for a tract of land called Michau's 
 Point, which complainant agreed to take at 
 ^10,000 ; a tract of land on Cat Island pur- 
 chased by him ; for some negroes belonging 
 to the partnership reserved for sale, retained 
 by complainant, for which he is bound to 
 pay ; the sum of $.5,476.79, received by com- 
 plainant, from W. S. Smith, administrator ; 
 the sum of $1,142 in the hands of the fac- 
 tors, Kavenel & Stevens, belonging to the 
 estate, which, as these defendants believe, 
 complainant also received. Defendants refer 
 to accounts filed with their answer, for a 
 statement of the amounts received by Brown 
 and wife, and by complainant as assignee, 
 for which he, and the share of the partner- 
 ship in his hands, is liable. 
 
 Defendants further allege, that on a final 
 *477 
 settlement between *the representatives, re- 
 spectively, of George and Savage Smith, the 
 complainant, as representing the former, will 
 be largely indebted to the defendants in 
 right of the latter. 
 
 Further state, that the bond secured by 
 mortgage, given by complainant for liis pur- 
 chase at commissioner's sale, was assigned 
 by commissioner to the estate of Savage 
 Smith, as part of their moiety arising from 
 said sale; that said bond was pledged to the 
 U. S. Bank to raise money to pay the com- 
 promise debt, and this loan having since been 
 paid the Bank, the bond was returned to Wm. 
 C. Smith, representing the estate of Savage 
 Smith ; defendants insist that complainant 
 is bound to paj' this bond, and as it was 
 taken for cash, defendants ought not to be 
 compelled to await a final settlement. They 
 insist, that on such settlement, a large bal- 
 ance will be found due to them — that they 
 have always been anxious for such settle- 
 ment. Two of the defendants, Thomas P. S. 
 and David H. S., say they are infants, and 
 submit their rights to the protection of the 
 Court. 
 
 In January, '35, Henry Cuttino filed his 
 answer to the bill above set forth, of the
 
 BliOWX V. .SMI 111 
 
 *48U 
 
 assipnoo. B. F. Hunt. lie aduilttod the ml- 
 niiiiistratiuM of lii.s testator, and the former 
 proceedings un<ler tlie decree, iJte., but relied 
 on the decree of l.'^LTi, as discliarping his tes- 
 tator from all furtlier acconntaltilitj-, — stat- 
 ing that since tiiat time, he had never Inter- 
 fered with any iiortion of the estate, except 
 what was assijincd to the di.striluitees of Sav- 
 age Smitli. acting as tiieir agent, and was 
 only accountable to tliem, — stating that the 
 assignee luul the chief control of tlie estate, 
 &c. 
 
 After this, some referenc-es were held in 
 Georgetown before the commissioner, whetlier 
 under the previous orders already noticed, 
 or a subsequent one. did not appear. At these 
 references, or some of them, tlie solicitor of 
 the di.'^tributees of Savage Smitli. and the 
 assignee in person, attended — dt'inands were 
 specified — vouchers offered and witnesses ex- 
 amined, but it did not appear that the refer- 
 ences were ever closed — and no report was 
 ever made by the Georgetown commissioner. 
 
 In August, 1S;>S, W. S. Smith died, leaving 
 the estate of G. Smith unrepresented— and 
 his own estate also unrepresented. 
 *478 
 
 •In November, "."{s, W. C. Smith, and tlie 
 other children of Savage, his distributees, de- 
 fendants in the former cause, filed their 
 cross bill against B. F. Hunt, assignee, com- 
 plainant in the former bill. In this bill, ad- 
 mitting and setting forth the previous pro- 
 ceedings, they relied upon the charges set up 
 in their answer to the former bill, and called 
 for an execution of the decree of 1S2."5, claim- 
 ing an account from the assignee, for all the 
 sums which Brown would have been accoun- 
 table for under that decree, and all that the 
 assignee had become accountable for siiic-e 
 that decree, on account of his dealings with 
 the partnership property, and debts of the 
 partnership estate paid by complainants. 
 Tliey relied for the most part on tlie claims 
 before specified in their answer, and some ad- 
 ditional items in the same right, &c. They 
 persisted in their former denials, and called 
 for a direct account (without regard to the 
 administration accounts,) as being each di- 
 rectly and adversely interested under the de- 
 cree in the .share received by the assignee. 
 
 To this bill, the defendant, B. F. Hunt, 
 put in his answer, relying on his former 
 claims, in right of Josiah Smith and C. T. 
 Brown and wife, as a discount to all claims 
 against him — reiterating those claims— deny- 
 ing all privity with comi)lainants, and that 
 he had ever impleaded them as to the i>erson- 
 al estate; insi.stlng on his uninterrupted 
 possession of the property, and the statutes 
 of limitations, to all the claims urged against 
 liim. and .setting up claims against the ad- 
 ministrators for professional .services, as 
 giving him a right to retain some of the prop- 
 erty in his possession — urging various other 
 claims and objections. He also objected to 
 the whole bill as not showing any riglit to 
 
 implead him in this Court, and prayed the 
 .same benefit as if he had demurred. 
 
 Up to this time, all the proceedings had 
 been in (Jeorgetown, but on listh June. 1840. 
 it was ordered, that all the causes, pleadings 
 and proceedings .should be transferred to 
 Charh'ston, with the provision, that tlie trans- 
 fer was not to affect an.v of the ipiestions 
 made by the parties. On the 11th July, 1840, 
 an order was taken out by the solicitor of 
 
 *479 
 
 William C. Smith, and others •his co-distribu- 
 tees, that the case, together with the original 
 bill and cross bill of the defendants, be re- 
 ferred to the i-onimissioner, to take and re- 
 port the accounts between the parties. 
 Under this order, references were held before 
 Mr. Gray, one of the Masters, twenty-one or 
 more iu number, commencing on the 14th 
 Oct., 1840, and ending on the 7th June. 184.'^. 
 To all of these, the assignee, Benjamin F. 
 Hunt, was summoned, and at most of them 
 attended in person, sometimes objecting to 
 the proceedings, and sometimes objecting to 
 the vouchers offered, and offering in discount, 
 the claim as assignee of Josiali Smith and 
 George Smith's individual estate as unac- 
 counted for. 
 
 On the 28th of June, 1.S4.3, the Master tiled 
 his report. In this, he reported that it liad 
 been satisfactorily proved before him. by 
 vouchers and witnesses, that the sums re- 
 ceived by Brown, from the administrator of 
 the estate of George and Savage Smith, sums 
 paid by said administrator on account of the 
 individual estate of George Smith, and mon- 
 ies and property received by Mr. Hunt, be- 
 longing to the partnership estate, amounted 
 in the whole, to .^l^l'.nJKJ.OO. for the one-half 
 of which, the assignee of Brown would have 
 to ac-count. if the case stopped there, but that 
 it was insisted on the part of Benjamin F. 
 Hunt, that no account could be adjusted be- 
 tween the parties until the administrators 
 accounts of George and Savage Smith had 
 been fully audited and established, and it 
 was ascertained that Brown and wife, «Stc. 
 had received more than their share. Tlie 
 Master further reported, that the estates of 
 George Smith and of William S. Smith were 
 not represented. That no accounts of the ad- 
 ministration of Gi'orge and Savage Smith 
 had been rendered to him. and that he could 
 not make up a correct acwunt without such 
 accounts, and tiled the testimony. The causes 
 were called on the docket at February Term. 
 1844, for hearing, and objections were made 
 to their being heard, on the ground, that the 
 two tirst had abated by the death of W. S. 
 Smith, and the third could not he heard on 
 the report. The question was argued before 
 his Honor, Chancellor Johnston, who made a 
 decree, recalling the order of reference of 
 July, 1840, and staying proceedings until 
 
 •480 
 •other parties were made to the cross bill. 
 
 197
 
 *48«/ 
 
 3 RICHAr.DSON'S EQUITY REPORTa 
 
 The conclusion of his Honor's decree is as | to restrain the defendant, W. C. Smith, and 
 follows: 
 
 "It is ordered, that this cross suit be stayed 
 until the plaintiffs make parties of Brown, 
 or his representative; of Cuttino's represen- 
 tative ; of the representative of Wm. S. 
 Smith; of the representatives of Josiah 
 Smith, and of the representatives, de bonis 
 lion, of George Smith and Savage Smith, re- 
 spectively; and that the order of reference 
 of the 11th of July, 1810, be recalled. 
 
 "A proper order of reference, extending to 
 the whole of the accounts, can only be made 
 when the pleadings are completed. I would 
 suggest such an amendment of the pleadings, 
 as should distinctly call for an account and 
 settlement of the respective estates of George 
 Smith and Savage Smith, so as to close for- 
 ever this tedious litigation." 
 
 From this decree an appeal was taken, 
 which, at March Term, 1815, was dismissed. 
 
 After the appeal was dismissed, the proper 
 parties were brought before the Court; and 
 at March sittings, 1816, it was ordered, that 
 the references be resumed without prejudice 
 to any of the parties, and reserving all the 
 equities, &c. 
 
 At the same sittings, (Marchv 1816,) his 
 Honor, Chancellor Johnson, on behalf of Col. 
 Hunt, made the following order: 
 
 "Order that an injunction do issue to re- 
 strain the defendant, W. C. Smith, and others, 
 from pursuing their judgment at law, and 
 levying execution at law, in the case of 
 Coachman, commissioner in Equity, against 
 li. F. Hunt, upon the complainant, B. F. 
 Hunt, entering into bond with security to be 
 aiiproved by the Master, for the payment of 
 the amount due upon the said judgment, with 
 legal interest thereon from its date, whenever 
 the said injunction shall be dissolved, or until 
 the further order of the Court." 
 
 During the summer sittings of 1846 and 
 1S17, applications were made to dissolve the 
 injunction issued under the above order. 
 The applications were refused, and the mo- 
 tion was taken to the Appeal Court, where, 
 in February Term, 1848, the following opin- 
 ion was delivered by 
 
 *481 
 *Dargan, Ch. There is much complexity 
 in the facts of this case. The rights of the 
 parties have been further complicated, by a 
 course of litigation protracted far beyond 
 the usual period, by the involved state of the 
 pleadings, the numerous parties thereto, and 
 the various orders which have been hereto- 
 fore made. As the Court will express, and 
 lias, in fact, formed no opinion as to the 
 merits of the questions between the parties, 
 I will here advert only to such of the facts 
 as constitute the basis on which the decree 
 of tlie Court on this application will be ren- 
 dered. 
 
 On the 26th of March, 1816, Chancellor 
 Johnson made the following order in this 
 case: "Ordered that an injunction do issue 
 
 others, from pursuing their judgment at 
 law, and levying execution at law, in the 
 case of Coachman, commissioner in Equity. 
 V. B. F. Hunt, upon the complainant, B. F. 
 Hunt, entering into bond with security, to 
 be approved by the ^Master, for the payment 
 of the amount due upon the said judgment, 
 with legal interest thereon from its date, 
 whenever the said injunction shall be dis- 
 solved, or until the further order of the 
 Court." 
 
 At the succeeding term of the Court of 
 Equity for Charleston, it was moved before 
 the presiding Chancellor, that the injunc- 
 tion be dissolved, when the following order 
 was made: — "This case comes up on a mo- 
 tion of the solicitors for the administrator 
 and heirs of Savage Smith, to dissolve the 
 injunction granted by Chancellor .Johnson. 
 The Court is of opinion that, in this stage 
 of the proceedings, there is nothing which 
 can warrant its interference with the order 
 of the Chancellor. The same equities sub- 
 sist upon the allegations of the parties, and 
 the report has not yet ascertained how the 
 account stands. An interlocutory order dis- 
 solving the injunction would manifestly then 
 be a re-hearing of the same case already 
 considered by the Chancellor who granted 
 the injunction. It is. therefore ordered that 
 the motion to dissolve the injunction be dis- 
 missed." 
 
 The motion to dissolve the injunction was 
 again renewed at the Summer sittings for 
 Charleston, and was again refused. And 
 the application is now made by way of ap- 
 
 *482 
 peal (on the *grounds stated in the brief) 
 from the decision of the two Chancellors, 
 who rejected the motion to dissolve the in- 
 junction as aforesaid. 
 
 The ansAver of the defendants has been 
 put in, in which all the equities of the com- 
 plainant's bill have been positively denied. 
 And on the 8th of June last, the report of 
 the Master was filed, stating the accounts be- 
 tween the parties, and in which a large bal- 
 ance has been struck against the complain- 
 ant. In addition to these facts, it may be 
 remarked, that the proceedings in this case 
 at law, were first arrested by an order of 
 this Court, in the case of B. F. Hunt v. The 
 representatives and heirs at law of Savage 
 Smith, made by Chancellor De Saussure, in 
 the year 1832. This bill having abated by 
 the death of some of the defendants ; on 
 the revival of the same, an application was 
 made to Chancellor Johnson, that a writ 
 of injunction formerly granted, would be 
 re-signed and directed to the present repre- 
 sentatives of Savage Smith ; and an order 
 was made to that effect. It was then moved 
 that the order should be so amended as to 
 require security, which was refused. On 
 appeal, it was held that a complainant ap- 
 plying to the Court of Equity for a writ of 
 
 198
 
 EKOWN V. SMITH 
 
 *4S5 
 
 in.iuiution to restrain proceedings upon a 
 Jiidsment at law. was Itound to give securi- 
 tyCrt). On a sul)se(iuent a|»|»lication before 
 riiancellor Jolinson. the order first reeited 
 In tliis statement was granted. It tlujs ap- 
 j.ears that the proceedings in tlds action at 
 law liave been susjiended by the interposi- 
 tion of tliis Court for sixteen years. The 
 simple (piestion now sul)mitted is, whether, 
 under these circumstances, tlie Injunction 
 should be dissolved, irrespectively of any 
 consideration of tlie merits of the questions 
 at issue between the parties. It is cer- 
 tainly tru^ that an application for an injunc- 
 tion to .stay proceedings at law is one ad- 
 dressed to the sound discretion of this Court. 
 It is also true, that after the answer has been 
 put in. the continuance or dissolution of the 
 injiniction is equally within the discretion of 
 the Court. "While the eiiuities sworn to in 
 the bill are undenieil. there is reason that 
 the injunction should continue in force. 
 
 *483 
 
 *The same reason applies, when the answer 
 admits the complainant's eipiities. lUit 
 when the answer positively deiues all the 
 complainant's equities set forth in his bill, 
 if the latter be not corroborated by other 
 proofs, the presumption, on which the in- 
 terposition of the Court was originally bas- 
 ed, in a great measure ceases to exist. At 
 this stage of the case, if the complainant 
 has further proofs by which he may support 
 the allegation of his bill, he should present 
 them in the form of affidavits. If he has 
 none such, it is obvious that the further in- 
 tervention of Equity, in arresting the pro- 
 ceedings at law, is unnecessary, and may 
 be mischievous, as on a trial upon bill and 
 answer, the disnn.ssal of the bill must fol- 
 low as a necessary conse<pience. 
 
 By the 5th section of the Act of 1721, it 
 is provided, "that no injunction shall con- 
 tinue of force longer than the next term 
 after the defendant has put in his answer, 
 unless the Court shall see fit to extend it." 
 The plain meaning of this provision is con- 
 ceived to be, that after the answer is put 
 in. the Court may extend or dissolve the in- 
 junction, in the exercise of its own sound 
 discretion. There is no impediment, there- 
 fore, in entertaining the motion, notwith- 
 standing the order that has already been 
 made. Indeed, it seems to be but a provision- 
 al order, and by its own terms, to contem- 
 plate a possible further moditication before 
 the hearing of the cause. 
 
 Since that order was made, another im- 
 portant stage in this protracted litigation 
 has been attained, and another aspect given 
 to the case, which did not then exist, and 
 which has a strong bearing on the question 
 now submitted to the Court. The Master 
 has tiled his report on the accounts between 
 the parties, and has found a large balance 
 
 (o) Hunt V. smith, 1 Rich. Ea. 277. 
 
 against the complainant. The judgmcirr at 
 law (the subjt'Ct matter of the injunction) 
 is not include<l in that balance. It is true, 
 that many exceptions are taken to this re- 
 port, and it may be, when the exceptions 
 are heard, the rejiort may be set asiiU' in the 
 whole or part. Doubtless, the merits of the 
 controversies between the parties are, in a 
 great degree, involved in that report, and 
 
 ♦484 
 the exceptions thereto. Hut *tliis apidica- 
 tion is decided (as has been already stated) 
 without any reference to those questions. 
 
 The Master's report thus finding a large 
 balance against the complainant, and thus 
 making a case of jirima facie indebtedness 
 by him instead of the defendant, when su- 
 peradded to the denial of the <-omplainant's 
 ecpiities by the answers, constitutes an in- 
 superable objection to tin- further interfer- 
 ence by this Court with the progress of the 
 suit at law. 
 
 This Court has now stayed the proceed- 
 ings of a Court of law. on a purely legal 
 demand, for sixteen years. And it has been 
 twenty-six years since this litigation com- 
 menced in the Court of Kquity. Uoubtless, 
 the progress of the cause has been obstruct- 
 ed by many unavoidable accidents and de- 
 lays. It is dillicult to avoid the conclusion, 
 that there has been laches. This Court has 
 no means of knowing by who.se default this 
 extraordinary delay has occurred. The 
 rules of Chancery practice, on the suliject 
 of injunctions, require that the conn)lainant 
 should use a high degree of diligence, and 
 in any uncertainty as to whose default has 
 occasioned the delay, he. as the actor, must 
 share a'large proixn'tion of the responsibili- 
 ty, or, at all events, make a showing that 
 he has used a reasonable degree of diligence 
 in pre|iaring his case for trial. 
 
 Against the dissolution of the injunction, 
 it is urged, that it might occasion the com- 
 plainant irreparable mischief: that the 
 heirs of Savage Smith are utterly insolvent; 
 that tlu'ir share of the joint estate which 
 was allotted to them in the division, has 
 passed by sale into other hands: and that, 
 if the complainant should t>staiilisli his 
 claims against the estate of Savage Smith, 
 he would have no means of enforcing his 
 demands, while the defendants possessing 
 the security of the injunction bond can suf- 
 fer no other inconvenience than delay. This 
 argument might address itself strongly to 
 the consideration of the Court, if it were not 
 clear that the complainant possesses the 
 most ample security for any amount that 
 he may recover from the defendants, in the 
 final adjustment of the accounts. The de- 
 cree for partition of 1S25 affords this protec- 
 tion. It expressly provides, "that each 
 
 *485 
 ♦share shall remain subject to the final de- 
 cree, which shall be made upon the mutual 
 demands of the parties, plaintiffs and de- 
 
 191)
 
 *485 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 fendants." And the shave of the heirs of 
 Savage Smith purchased pendente lite, and, 
 therefore, witli notice, cannot by sucla sale 
 be divested of the lien which that decree 
 thiis imposes upon it. 
 
 For the foregoing reasons, it is the opinion 
 of the Court, that the injunction should be 
 dissolved, and it is accordingly so decreed. 
 
 JOHNSTON, DUNKIN and CALDWELL, 
 CC, concurred. 
 
 Under the order of reference of March, 
 1846, the Master, (Mr. Gray), on the 9th 
 June, 1817, filed his report as follows. 
 "To the Honorable the Chancellors of the 
 
 said State: 
 
 "Since my report, filed 28th June, 1843, 
 with the testimony to which it referred, 
 Chancellor Johnston, on the 13th INIarch, 1846, 
 made the following order. — "New parties 
 having been made, in pursuance of the Ap- 
 peal Decree ; it is ordered that the referenc- 
 es be resumed in these causes, without preju- 
 dice to any of the parties, and reserving all 
 the equities in the same manner for the 
 hearing as though the present order had not 
 been entered. It is further ordered, that 
 evidence be taken by any party to the cause 
 or any matter involved in the pleadings, to 
 be used in the causes as may be required ; 
 this order made with consent of the solicitor 
 of B. F. Hunt." I respectfully report, that 
 in pursuance of the said order, many ref- 
 erences have been had before me by the 
 solicitors of the parties, up to the 25th May 
 last, inclusive, the day fixed by me for clos- 
 ing all references in litigated causes, by a 
 notice published in my oflice on the 1st day 
 of the last April. I beg leave to file here- 
 with ruy notes of these references, and all 
 the testimony submitted to me from time to 
 time by the several parties. The represen- 
 tatives of the several estates of George and 
 Savage Smith, have each filed their claims, 
 and I proceed to state the results at which 
 I have arrived, after considering the testi- 
 mony submitted to me: 
 
 "First, as to the claim of B. F. Hunt, the 
 
 *486 
 
 assignee of C. *T. Brown and wife, or the 
 representatives of the estate of George 
 Smith, viz: that 
 
 "First, an account of the co-partnership of 
 George and Savage Smith, under its various 
 names, should be taken, and the share of 
 each brother ascertained. The testimony 
 shows, that with the exception of a few 
 house servants, and some other property of 
 inconsiderable value, owned by George and 
 Savage Smith in their individual rights, all 
 the rest of their lands, negroes and assets 
 were owned and employed by them jointly, 
 in the various uses to which they were ap- 
 plied ; so that after deducting whatever was 
 strictly applicable to their joint liabilities, 
 
 200 
 
 the remainder was to he equally divided be- 
 tween the brothers. 
 
 "2nd. That Josiah Smith made consider- 
 able advances to the firm of George and 
 Savage Smith, on account of his daughter, 
 the wife of George, which ought to be cred- 
 ited to the estate of (ieorge, and allowed Mr. 
 Hunt, who is the assignee of the claim. I 
 do not find any testimony in support of this 
 claim, but that of Mr. Josiah Smith, the 
 alleged creditor himself, supported by entries 
 in the book called his Petty Ledger in evi- 
 dence ; but there is no proof that Savage 
 Smith ever recognized the claim, and it seems 
 from the testimony of Henry Cuttino, that 
 George Smith himself stated to him, that he 
 was not aware how Mr. Josiah Smith had 
 made such advances. 
 
 3d. The excess of the private expenditures 
 of Savage over George, from 1783 to 1817, 
 which it is alleged would leave $45,000 to 
 equalize the partnership expenses; it is in 
 evidence, that George Smith during that time 
 resided in the family of Josiah Smith, at^d 
 that his private expenses were small, hav- 
 ing only a wife and one child ; while Savage 
 Smith had a large family of children, and 
 lived in Georgetown handsomely at an ex- 
 pense of from $2,000 to $2,500 per annum. 
 But it is also in evidence, that during this 
 long series of years, the brothers never came 
 to an account with each other, or had any 
 settlements of transactions, but appeared to 
 treat their interests as identical, and to use 
 their estates as if it were the proi>erty of 
 
 *487 
 each, and employed *for their mutual ad- 
 vantage ; so that it would be impossible to 
 adjust their accounts after such a lapse of 
 time. This answer applies also to all the 
 other incidental claims under this head, such 
 as the title to "Crips" Plantation, having 
 been taken in the name of George Smith, 
 while that of "Richfield" was taken in the 
 name of George and Savage. The payments 
 made by George Smith for negroes, as per 
 bills of sale, «&c. 
 
 "4th. The next claim is, that the adminis- 
 trators should account for the estate. I find 
 that the accounts of W. S. Smith, one of the 
 administrators, from 1818 to 1825, have been 
 vouched before me, and the balance appearing 
 in his last account paid to the order of Mr. 
 Heriot, commissioner in Equity for George- 
 town district. Mr. Hunt has submitted his 
 objections to these accounts, and filed a 
 statement, which I have marked X., which 
 he claims as a proper account, shewing a 
 balance of $10,799.12 in his hands in 1825, 
 instead of $5,576.79, the balance paid by him/. 
 In this connexion, Mr. Mitchell, for the rep- 
 resentatives of Savage Smith, has submitted 
 a statement, marked Z, by which it appears, 
 that comparing the sums received and dis- 
 bursed by Messrs. Ravenel & Stevens, the 
 factors of the estate, with those actually re- 
 ceived and disbursed by the said administra-
 
 BROWX V. SMITH 
 
 ♦490 
 
 tor, thero results a sum of $l.(>.'i7.G9, over- 
 char-^t'd fur coniniissioiis. whidi addtnl to the 
 lialame stated by Mr. Siuith, woidd aii!t>niit 
 to $7,114.48, the correct bahince due in 1S25; 
 and it appears to nie that this is the correct 
 view of tlie matter. 
 
 ".">th. Tlie next is a (hiiiu <>f the estate as 
 per the inventory. 
 
 "It appears to nie, that the property con- 
 tained in the partition, and allotted in ISL*'), 
 top'ther with the sales made by connnission- 
 er Ileriot, satisfactorily account for the 
 property. 
 
 "(Ith. The debts due the tinn in ISIS, when 
 (ieorge Smith died: which ought to have 
 Wen collected, unless the insolvency of the 
 debtors can be shown. 
 
 "The responsibility for these debts seems 
 to be shared between the administrators, and 
 comnnssioner Ileriot, viz: from ISlS to 18125 
 by the administrators, and afterwards by 
 the commissioner in Iviuity. who was then 
 
 *488 
 
 authorized to collect them, and then ♦receiv- 
 ed for collection from Mr. Cuttino, the ad- 
 ministrator, such as had not been realized 
 under the decree. 
 
 "The testimony of Mr. Iluiriiins specifies 
 such of them as he tlioauht might, from the 
 circumstances of the debtors, have been col- 
 lected : and he adds, that many of them were 
 solvent in 1825, and it appears to me, that 
 there nnist have been a want of proper dili- 
 gence in making the collections ; but the 
 representatives of both estates have suffered 
 e4iually from the acts of their agents, and 
 ought to share the losses, if any have oc- 
 curred; this embraces the cases of W. R. 
 Theus and of Richard F. Withers, the debtors 
 referred to, the particulars of wliicb are de- 
 tailed in the testimony of Mr. J. \. Davis 
 and Mr. Iluggins. 
 
 "7th. The next claim is, that the lot in 
 Ilampstead is part of the joint estate. And 
 I lind that it is so, as appears by the tax 
 returns of W. S. Snuth. the adnnnistrator, 
 as late as 181G; and this, therefore, ought 
 to be brought into division between the par- 
 ties. 
 
 "Sth. That the land on which the tan- 
 yard was in Georgetown, and the other real 
 estate in that town, was joint estate. I find 
 that the tan-yard lot was a part of the joint 
 estate, and was sold by Henry Cuttino in 
 1835, for .$110 V that after the death of 
 Savage Smith, George Smith transferred his 
 interest in it to his nei»hew, George S. Smith. 
 And I find that the house and lot of Savage 
 Smith, where he resided, was not the proper- 
 ty of the estate, but of Mrs. Savage Smith, 
 derived from her father, Wm. Cuttino. 
 
 "9th. Is a claim for a negro, Isaac, and 
 others attached to the tan-yard. I find from 
 the testimony of Mr. Henry Cuttino. that 
 Isaac was the property of Savage Smith: 
 that at the death of Savage Smith, the busi- 
 
 ness of the tau-yard was very inconsiderable ; 
 that of the 10 negroes then attached to it. 
 all died except live, which were sold in 1S.S5, 
 and broui-'ht .'«;!!t7.5() altogether. 
 
 "lOth. Claims that the accounts of Peter 
 Cuttino should be vouched: I find that these 
 accounts were vouched before the (udinary ; 
 but the vouchers havt- not iieen subnutted to 
 me; and that for all the items of .said ac- 
 
 ♦489 
 Counts, except for monies *adndtti'tl to have 
 been received by either of the represt-ntatives 
 of the two estates, the parties are entitled to 
 have a decree against the said administrator. 
 
 "I proceed now to the claims of the repre- 
 .•<entativi's of Savage Smith. sui)nntted by Mr. 
 Mitchell, whicb are to be reimbursed by Mr. 
 Hunt, the assignee of C. T. Rrowu and wife, 
 in conformity to the decree of l>>-5. for all 
 sums received by him, or expendivl for him, 
 out of the joint estates, over his equal share. 
 
 "Ist. Is contained in .Sclu'dule A. filed with 
 said claim, which contains the items of por- 
 tions of the joint estate applii-d to the private 
 debts of (Jeorge Smith gn-ati-r than were ap- 
 plied to the private debts of Savage Snntb. I 
 find the items of this claim to Ix^ correctly es- 
 tal)lished by the testimony, with the exception 
 of the sum of .$l."i.SL'0.:2G, paid on the comiiro- 
 mise debt of Hird, Savage & Rird. which 1 con- 
 sider to be a good charge on the joint estate. 
 The debt originally seems to have lieen one of 
 (ieorge Smith, sen'r. (the father of George 
 and Savage Smith,) and of .Tosiah Snnth, and 
 the judgments upon it in the Federal Circuit 
 Court are entered against Josiah Smith indi- 
 vidually, George Smith as executor of (ieorge 
 Smith, and Josiah Smith as executor of 
 George Smith : the particulars of v.hich judg- 
 ments are stated in my notes of the referenc- 
 es of the !)th of February last. The name of 
 Savage Smith does not appear in the pro- 
 ceedings; but that of his brother, George, 
 appears only as executor of his father, and 
 as they held and enjoyed jointly their fa- 
 ther's estate, there is every reason to infer 
 that this was regarded as a joint debt by 
 (ieorge and Savage Smith. Resides, the debt 
 was compromised at the instance of the rep- 
 resentatives of both estates, and the decree 
 directed it to be paid out of the funds of the 
 joint estate, and the above payment was 
 accordingly so made. The result of this 
 Schedule shews, after striking out this item, 
 that the amount paid for the estate of George 
 Smith, exceeds that paid for the estate of 
 Savage Smith, after allowing interest to the 
 present time, by .$lil,()SG.:}l.', which ought to be 
 paid by the assignee of C. T. Hrown and wife. 
 2d. This claim, contained in Schedule B, 
 *490 
 Nos. 1 and 2, is for *the excess of payments 
 made out of the joint estate to C. T. Brown 
 and wife, over those made to the distributees 
 of Savage Smith. Exception was taken to 
 the character of many of the receipts given 
 
 201
 
 3 RICHARDSON'^ EQUITY REPORTS 
 
 !)y Mr. Brown to W. S. Smith, as indicating 
 receipts of money from Mr. Smith individual- 
 ly, and not as administrator, from which it 
 was inferred, that they related to private 
 transactions not connected with the estates; 
 but the testimony of Thomas Lehre convinces 
 me that the money came from the joint es- 
 tates. And I find that there is due by the as- 
 signee of C. T. Brown and wife, to the dis- 
 tributees of Savage Smith, on this account, 
 $11, 521. .56, including interest to the present 
 time. 
 
 "3d. Schedule C contains the claim for the 
 amount due from C. T. Brown, for the hire 
 of the negroes of the estate, from January, 
 1820, to January, 1825. I find this claim to 
 be established by the letter of C. T. Brown to 
 the administrator, of the 1st August, 1819, 
 and also by the examination of C. T. Brown 
 before me, annexed to my former report, and 
 I find that there is due by the assignee on 
 this account, $13,542.50, including interest to 
 the present time. 
 
 "4th. Schedule P is the claim of the 
 amount due to the heirs of Savage Smith, 
 for equality of partition on the division of 
 the estate in 1825. This claim is established 
 by the return of the commissioners in parti- 
 tion in 1825, and the report of commissioner 
 Heriot, February 3, 1827, and I find the 
 amount due by Mr. Hunt to be $3,262, includ- 
 ing interest to the present time. 
 
 "5th. Schedule E is a claim for the amount 
 paid by the administrator and heirs of Sav- 
 age Smith, in full of the balance due on the 
 compromise debt of Bird, Savage and Bird. 
 This claim is fully established by the tes- 
 timony, especially that given by Mitchell 
 King, Esq., and I find the amount due by 
 Mr. Hunt to the heirs of Savage Smith, to be 
 $14,768.16, including interest to the present 
 time. 
 
 "6th. Schedule F is a claim for certain 
 funds and property, alleged to have been re- 
 ceived by Mr. Hunt, after the decree of 1825, 
 for which the heirs of Savage Smith did not 
 receive an equivalent, or which were not ap- 
 
 *491 
 
 plied to the partnership debts; *of the items 
 of this claim, I find that the item of $.344.20, 
 received from Ravenel & Stevens, and the 
 item of $403.56, received from sheriff Steed- 
 man, were accounted for by Mr. Hunt to com- 
 missioner Heriot, who.se agent he was in the 
 receipt of them. And they are disallowed. 
 Another item in this Schedule, viz: the 
 amount due for the purchase by Mr. Hunt of 
 Michau's or Clegg's Point, $10,000, appears 
 to me not to be sustained by the testimony. 
 The property was bid off by Mr. Hunt, at $8,- 
 000, and he paid $776.50 of the purchase mon- 
 ey; but he never received titles for the prop- 
 erty, and it was afterwards sold under the 
 decree obtained by S. Pedrieau and wife, (re- 
 ported in Riley's Chancery Cases, page 88,) 
 and was lost to Mr. Hunt, the former pur- 
 202 
 
 chaser. This item is therefore disallowed. 
 And I find the amount due by Mr. Hunt to the 
 heirs of Savage Smith, on the remaining 
 items of this Schedule, to be $1,468.00, includ- 
 ing interest to the present time. 
 
 "In addition to the foregoing claims, there 
 is one for the bond given by Mr. Hunt to com- 
 missioner Heriot, for $4,053.00, with interest, 
 for the purchase of negroes of the joint es- 
 tate, on which a judgment has been obtained 
 at law, but which has been enjoined by this 
 Court, to abide the decree in this case. 
 
 "The Schedule G annexed, will exhibit a 
 sunmiary of the several balances found as 
 above to be due ))y Mr. Hunt to the rei)re- 
 sentatives of Savage Smith." 
 
 The cases were heard, on exceptions to 
 the above report, at February sittings, 1848, 
 before his Honor, Chancellor Johnston, who 
 pronounced the following decree: 
 
 Johnston, Ch. I had, at the close of the 
 argument, pretty satisfactory impressions of 
 the general principles ui)on which this liti- 
 gation must turn; and though they have been 
 in some decree obscured, they have not been 
 materially altered by the immense and heter- 
 ogeneous mass of documents, which I have 
 been required to read and examine. 
 
 In deciding the case, I will introduce what 
 I huve to say, by remarking, that the prin- 
 cipal litigation has palpably arisen in con- 
 sequence of Mr. Hunt's having substituted 
 
 *492 
 
 his bond, in place *of the money, for part of 
 his purchases from Mr. Commissioner Heriot. 
 By the report of the 3d February, 1827, it 
 appears that the commissioner has sold, of 
 property belonging to the copartnership es- 
 tate, and of property mortgaged to it, to the 
 amount of $21,.5i98, (of which there was pur- 
 cha.sed by Col. Hunt to the value of $13,553.) 
 Part of this sum, to wit: $19,069.42, was di- 
 vided between the distributees of the respec- 
 tive parties, in the proportion of $9,500.00 
 to Col. Hunt, and $9,56.9.42 to the distributees 
 of Savage Smith ; and upon the principles 
 of that report, it is pretty clear, that if Col. 
 Hunt had paid the whole amount of his pur- 
 chases, instead of giving his bond for $4,053, 
 a part of them, an equal division would have 
 been made of the whole of this fund, (the 
 $21,598.) That is, the amount covered by 
 Hunt's bond, ($4,053,) if it had been paid in, 
 and had existed in cash, in the commission- 
 er's hands, would have been apportioned by 
 allotting to Hunt .$2,061.21, and to the distrib- 
 utees of Savage Smith $1,991.79, of that por- 
 tion of the fund, which would have equalized 
 the difference of $69.42 between the drafts 
 upon the whole $21,598. 
 
 The early contest was in relation to this 
 fund, and has been enlarged, by the one par- 
 ty looking up claims to sustain him m the 
 right to retain it, and the other seeking for 
 counter claims to meet these and compel him 
 to give it up ; and I am persuaded, froiu the
 
 BROWN V. S>UTU 
 
 *495 
 
 facts to wliidi I have nllmlt'il, touiiU'd with 
 the precediuj,' and sucfi't'diii;; hiclu's of tlu' 
 parties in lehitioii ti» these extrinsic chiinis 
 that tliey are more plausible than n-al, and 
 that the marrow of this litijiation is the bond 
 of Hunt. Nothinj; heytaid this was claimed 
 l>y him, until his hill in IKVA. nor liy the oth- 
 er parties, until their cn»ss bill in ls;!S, for 
 altlu)Uj,'h they did tish up sonu' few thin;.'s in 
 their answer to his bill, they never earnestly j 
 proceeded to urge any claim beyond the bond, 
 until they tiled their cross bill, as I have 
 stated. 
 
 My i)ersuasion is, therefore, that (.with the 
 exception of matters in the report not except- 
 ed to, which must of course stand, if there be 
 any such,) the decree nnist be lonlined to the 
 sum for which Hunt's bond was !.;iven, with 
 
 ♦493 
 interest, and that it should *be divided as I 
 have stated ; the .iu(lt,'ment obtained on it to 
 stand as a security for the amount to be de- 
 creed, and to be enjoined for all beyond that 
 amount. My opinion is, also, that all the oth- 
 er claims are too stale or obscure to be made 
 the subject of a decree. 
 
 If we were to go lx\von(l the point I have 
 intimated, and enter into the consideration 
 of the other claims set up by the different 
 parties, we nuist be governed, throughout 
 the investigation of tliem, by one leailing 
 principle. There is no privity between these 
 parties, but through the decree of l<s:25. No 
 claim can be recognized that does not come 
 within the purview of that decree. l*]\ery 
 claim anterior to it, and not embraced in it, 
 is lost. Every claim that falls within it, 
 nuist be governed by its provisions. And 
 every claim arising under it must be regard- 
 ed with special reference to the rights of 
 the parties, as established by the decree it- 
 self. 
 
 This decree of 1825 nuist be construed with 
 reference to tlie pleadings. Resides the two 
 matters of Josiah Smith's claim, and the en- 
 dorsement for Waring, which are specially 
 mentioned in the pleadings, there is no otlu'r 
 claim set up, but the demand of a general 
 account of the i»artnershii>. The latter would 
 necessarily be sul)ject to reciprocal claims, 
 incidentally arising from the account. IJy 
 the phrases in the decree, "mutual demands 
 of the complainants and defendants," •'mu- 
 tual claims of the jiarties." and '"the several 
 accoinits of the complainants and defenilants 
 with the estate," the Court umst be intended 
 to allude to the "demands," "claims" and "ac- 
 counts" embraced by the record ; and these 
 are such as I liave stated. 
 
 Let us assume, therefore, that these are 
 embraced in the decree of IJSL'o. No other 
 claims are embraced in it. 
 
 That di'cree, according to the view I have 
 taken, entitled the parties to an inciuiry into 
 Josiah Smith's claim, and into the indorse- 
 ment lor Waring. I?esides this, the plaintilf. 
 JJruwn, was entitled to u general utcouut 
 
 of the jiartnershiit from the administrators, 
 under which all matters proper to be urged 
 
 ♦494 
 by the dif^fereiit parties, as incidentaJ to 
 the accounting, might be brttught \ip and con- 
 sidered. 
 
 Now, from the date of rhat decree, until 
 very recently, the parties have not availed 
 themselves of the rights thus given them, 
 nor attemi)ted to take the account : and at 
 this late day, they come forwaril. not only 
 with the demands which they nnght long ag«> 
 have urged under this decree, but with oth- 
 »'rs entirely foreign to it, all stanii>ed with 
 obscurity, and ask the Court to redress the 
 conseiiuences of their own neglect. 
 
 If it were proper to imiuire into Josiah 
 Smith's claim, I entirely concur in the con- 
 clusion of the conunissioner in relation to it. 
 It is in no view sustainable. The bond was 
 never executed. The denunid remains a 
 simple contract, and was barred beft)re the 
 bill was tiled. For tlie monies atlvanced by 
 Josiah Smith, he .still remained the creditor; 
 as nuich after his a.ssignment as iM'fore : for 
 certainly the assignment of a blank carries 
 nothing. He was not before the Court in 
 1H22. Again, who.se creditor was he'/ Did 
 he advance the money to George Smith or tu 
 the tirm'/ If to George, then he was his- 
 creditor; and George, by contributing the- 
 money to the firm, was the real creditor of 
 the firm. But he, according to Cuttino, made 
 no such claim. But waive all these objec- 
 tions, and assume that Josiah Smith advanc- 
 ed directly to the firm, that the bond was 
 executed, and the demand not barred; still 
 Mrs. Brown took nothing by the assignment,, 
 which vested the whole interest in her moth- 
 er, who was neither a claimant nor rejire- 
 sented in the suit. 
 
 The endor.^ement for Waring stands upon 
 testimony entirely too obscure to ground any 
 decree upon it. 
 
 We ct)me now to the general account. But 
 before we enter upon it, it may t)e useful to 
 exanune the general features of the decree. 
 The decree looked to a speedy settlement. 
 The impediments to the partition sought by 
 Brown, (and possibly by the distributees of 
 Saviige Smith.) were the existence of out- 
 standing partnership debts, (among which 
 the demand of Bird, Savage & Bird was tlu' 
 largest and most pressing.) and the express 
 engagements made by the administrators with ^ 
 
 ♦495 
 the creditors. ♦The administrators said, 
 "I'ree us from the liabilities existing against 
 us, in virtue of assets in t)ur hands, en- 
 hanced in some instances, by our personal 
 and positive contract with the creditors, and 
 take the estate into your own hands; but 
 we cannot part from it until we are imlenmi- 
 rted." The decree meets these (lil!i<ulties,. 
 (1) by reipiiring the distributees of the part- 
 ners to discharge the liabilities assumed by 
 the administrators; (lij by providing a fund 
 
 203
 
 *495 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 for the payment of the partnership debts; 
 and, (3,) by limiting tlie property to be par- 
 titioned to a certain portion only, and in al- 
 lotting this to the distributees, imposing a 
 condition, that "the share of each remain 
 liable to the payment of an aliquot proportion 
 of debts," as well as "to the final decree 
 upon the mutual demands of the complain- 
 ants and defendants." 
 
 The fund provided for the payment of 
 debts was three-fold; (1,) the monies in the 
 hands of the administrators ; (2,) the partner- 
 ship choses, which the commissioner, (taking 
 the place of the administrators,) was forth- 
 with to collect by legal process; and, (3,) 
 the proceeds of Cat Island and other prop- 
 erty, which the commissioner was directed to 
 sell. 
 
 The administrators were directed to apply 
 the monies in their hands to the demand of 
 Bird, Savage & Bird; and the commissioner 
 was ordered to complete the payment of that 
 debt out of his first collections. The remain- 
 ing debts were thrown into two classes, cor- 
 responding to the two sets of distributees ; 
 and the commissioner was to discharge these 
 classes, pari passu, out of the residue of his 
 collections, and retain whatever surplus 
 might remain in his hands, '"subject to the 
 final order of the Court in relation to the 
 mutual claims of the parties." 
 
 Then "the several accounts of the com- 
 plainants and defendants, with the estate," 
 were referred to the commissioner, — which 
 I have interpreted to mean, the general ac- 
 count, (which is the only one spoken of in 
 the record,) and those incidentally connected 
 with it. 
 
 There is no doubt about the meaning of the 
 general account. What claims are incidental 
 
 *496 
 to it? When a general account is * decreed, 
 I suppose the proceedings must be so far 
 reciprocal, that the accounting party may 
 shew payments or advances made to the par- 
 ty calling for the account, or set off debts 
 due by him to the fund or to the trustee. 
 Whether in relation to debts of the latter 
 character, or where he insists upon a balance 
 in his favor, the trustee must not support 
 himself by pleading, it is not necessary, in 
 the view I shall take, to consider. Again, 
 I suppose, that when the account is, as in 
 this case, of a partnership — where the object 
 || is to ascertain the dry balance to w^hich the 
 respective partners are entitled — it is strictly 
 incidental to the proceedings, to enquire not 
 only what debts are outstanding against the 
 concern, whether held by strangers or by one 
 of themselves — but what choses, constitut- 
 ing assets, are due to the firm, either by third 
 persons, or by the individual partners. 
 Whether in relation to debts due to or owing 
 by the partners, pleading is necessary, or 
 whether, if pleading is required, there is no 
 distinction as to the necessity of it, between 
 the accounting party and the party demand- 
 
 204 
 
 ing the account, are questions in my view of 
 no importance here. 
 
 I think the right of the general account 
 has been waived or lost by laches ; or that 
 the account has been informally given to and 
 accepted by the parties entitled to it by 
 the decree. And as to the incidental claims, 
 even if they did not fall with the general 
 account, but stood upon independent ground, 
 I am of opinion, that every one of them upon 
 both sides has been forfeited by negligence ; 
 and that many of them are not, in themselves, 
 entitled to consideration. 
 
 Let us look to the general account. Has 
 there been no laches here? The decree shews 
 that the administrators were to be speedily 
 exonerated. The only condition of this ex- 
 oneration was, that they pay out the mon- 
 ies in their hands ; deliver over the choses ; 
 and come to the account ; the performance 
 of two of which conditions depended on them- 
 selves, the third depended upon the other 
 party, unless in so far as the administrators 
 might have counter claims to set up, as for 
 
 *497 
 instance if they desired to *make reclama- 
 tions for excessive advancements to the dis- 
 tribvitees, «S:c. 
 
 Now, did the administrators pay out all the 
 monies in their hands to Bird, Savage & 
 Bird? If this was not done, or what was 
 equivalent and equally satisfactory, why did 
 not the distributees — pressed as they were 
 on all hands by that debt — take the account, 
 at least so far as to shew the amount of 
 money in the administrators's hands, and by 
 rule or attachment compel the performance 
 of that part of the decree? 
 
 Then the choses were to be delivered to 
 the commissioner. — This oSicer was made the 
 agent of the distributees. He was not the 
 agent of the administrators, though he was 
 interposed for their protection, and required 
 to apply the assets to the demands for which 
 they were responsible. The distributees 
 tooK them with the tangible property, out of 
 the hands of these trustees at their own risk ; 
 and all that the administrators were bound 
 for, so far as the heirs were concerned, was 
 the delivery of them to the commissioner. 
 Did they do it? If not, why did the dis- 
 tributees delay to compel them? 
 
 Then, it is said, the complaint is not so 
 much that they were not delivered, as that, 
 when delivered, they were comparatively 
 worthless ; — rendered so by the laches of the 
 administratoi's ; — and they should account for 
 that. The commissioner, in his report, ex- 
 presses an opinion that there was negligence 
 somewhere; either in the administrators or 
 in the commissioner, Heriot. Well, if it was 
 in the administrators, was not that fact 
 known when the assets were delivered? — and 
 was it not more capable of being investigated 
 by proof and counter proof then than now? — 
 and why did not some one of these distribu- 
 tees, importuned from day to day by the co-
 
 BllOWX V. SMITH 
 
 *50U 
 
 partnership creditors, demand the acccnint, 
 and establish the fact? The list of copart- 
 nership securities, now used for establishing 
 the default of the administrators, was par- 
 cel of the record in IJrown's case, and was 
 accessable to any party for the puri)ose of 
 sliewinf; whether there was a full delivery, 
 
 *498 
 or whether the negligence *now imputed to 
 the administrators really existed. What im- 
 pi'diment, tlien, hindered the invt'stigation? 
 
 Kxcept the money and these securiries, 
 which have been disposed of, what remained 
 to be accounted for but the ii\come which the 
 administrators may have received while in 
 the custody of the estate? Whatever of 
 this remained as money in their hands has 
 been already considered. As to whatever por- 
 tion of it was paid out in the course of ad- 
 ministration, or to distributees, if there was 
 any dissatisfaction as to the disposition of 
 it. why did not the discontented distributees 
 or other party call for the account? 
 
 I see no reason for the delay from 1825 to 
 1S.T.. So far as the administrators are con- 
 cerned, this account could have been as well 
 taken in 1825 as at any time after, and far 
 better. I have said nothing of the laches 
 since 1833; of the demanding an account and 
 not making proper parties; or, (if all neces- 
 sary parties were before the Court) not pro- 
 ceeding; nor of the procrastinations by 
 which evidence that might have been pro- 
 duced, or explanations that might have been 
 given, may have been lost ; nor of the evi- 
 dence actually existing on the commissioner's 
 notes, and in the record of transactions pur- 
 porting to be an execution of the decree. 
 
 The same laches exists as to the incidental 
 claims. The inetpiality in the partition; the 
 inequality in the payment of debts; the rec- 
 lamations and counter charges set up for hire 
 of negroes and for monies paid to Brown; 
 why were these so long neglected ? The sub- 
 sistance account between the brothers from 
 its;; to 1817 ; is it not apparent from the cir- 
 cumstances referred to by the commissioner 
 that these brothers never intended to raise 
 such an account? They knew their business, 
 and may have supposed that the superintend- 
 ance of the large plantations in his neigh- 
 Ixirhood entitled Savage to a greater provi- 
 sion from the .loint property, if, in fact, he 
 drew his provision from that property. But 
 if it was otherwise; still, why was not the 
 di-mand pressed? The attempt to shew that 
 the debt to lUrd, Savage & Bird was properly 
 chargeable to one of the partners instead of 
 
 *499 
 the *tirm, was in the teeth of the decree of 
 1825, and badly supported by evidence. 
 
 On the whole, I can attribute the protract- 
 ed silence of these parties on all sides, and 
 their long abstinence from taking effectual 
 steps, to nothing but a consciousness that the 
 claims were doubtful, or satisH(>d: and that 
 substantial justice did not require them to 
 
 procetHl: unless I adopt the supposition that, 
 suffering under injustice, they neglected to 
 proct'cd. 
 
 It is dangerous, when claims have become 
 .stale, and the evidences of them obliterated 
 or obscured by time, to take judicial cogniz- 
 ance of them; and it is better they should 
 remain wliere the negligence of the claimants 
 has placed them, than to meddle with them 
 at the risk of perpetrating error and injustice 
 in their adjudication. 
 
 It is ordered tliat the report be re-commit- 
 ted, to be reformed agreeably to the fore- 
 going opinion ; and that he report the sum 
 lor which the decree should go, including in- 
 terest. Counsel will then propose a decree. 
 Hunt to pay the costs. 
 
 A motion was made, that the bond and 
 other securities taken by the commissioner, 
 on issuing the injunction against the suit or 
 judgment on Col. Hunt's bond, be delivered 
 out to be sued on by the plaintiff in that ac- 
 tion. It is ordered that they be delivered 
 accordingly. 
 
 Wm. C. Smith and others, heirs distribu- 
 tees and representatives of the estate of 
 Savage Smith, deceased, appealed from so 
 much of the above Decree as dismissed their 
 claims against Benjamin F. Hunt, reported 
 by the Master, and so much as enjoined the 
 judgment at law and abridged their rights 
 ac(iuired under the same, on the following 
 groinids : 
 
 1. Because his Honor has erred in deciding 
 that the said claims are too stale and obsi-ure 
 to receive the aid of this Court, whereas it is 
 submitted that they come fairly within the 
 purview of the Decree of 1825, and the plead- 
 ings and proceedings had in these cases be- 
 fore and since that time ; were fully support- 
 ed by evidence in the Master's othce, and 
 ought to have been enforced by a Decree of 
 this Court. 
 
 *500 
 *2. Because his Honor has erred in decid- 
 ing that these appellants had forfeited their 
 right to enforce the said claims by laches, 
 whereas it is submitted that there has been 
 no such laches as would forfeit the right, and 
 that the delays have been owing either to un- 
 avoidable causes, growing out of the course of 
 proceedings in this Court, or the obstacles 
 thrown in the way of a speedy adjustment 
 by the Assignee. 
 
 ' 3. Because his Honor has erred in deciding 
 that the claims of these appellants were bar- 
 red, by lapse of time, although some of them 
 were infants at the time of the Decree in 
 l,s25. and continued S(^ for a long time after- 
 wards; and it is submitted that this would 
 prevent their rights being prejudiced by the 
 lapse of time. 
 
 4. Because his Honor has erred in deciding 
 that these appellants were not entitled to be 
 reimbursed for the amount paid out of their 
 funds or estate, or by their agents, in satis- 
 factiou of the debt of Bird, Savage & Bird; 
 
 205
 
 •500 
 
 3 RICnARDSOX'S EQUITY REPORTS 
 
 Whereas it is submitted that by the Decree 
 of 1825, the compromise became a specific 
 charge or lien on the whole joint estate, and 
 they were entitled to be reimbursed for any 
 amount beyond one moiety paid by them or 
 out of their funds, in discharge of said debt ; 
 and that by the proceedings of the cause 
 and the acts of the parties, any persons ad- 
 vancing this money, or paying the debt, were 
 entitled to the benefit of this lien, and to have 
 it enforced in this Court. 
 
 5. Because his Honor has erred in deciding 
 that these appellants should be enjoined from 
 recovering more than one half of the judg- 
 ment on bond ; whereas it is submitted, that 
 according to the very principles of the De- 
 cree, they were entitled to the whole of it, as 
 the bond on which it was recovered was given 
 for a part of the moiety to which they were 
 entitled and which was assigned to them. 
 
 6. Because his Honor has erred in rein- 
 stating an injunction which had already been 
 dissolved by the Decree of the Appeal Court. 
 
 7. Because his Honor's Decree is in other 
 respects erroneous and contrary to law and 
 equity. 
 
 *501 
 *At January Term, 1850, the appeal was 
 heard and the following opinion thereon 
 delivered by 
 
 DARGAN, Ch. All these cases are substan- 
 tially between the same parties, and relate 
 to the same subject matter, and are but the 
 different phases in the way of pleading which 
 the controversy has assumed in the progress 
 of the protracted litigation. — In a case like 
 this, so complex and multiform in its points 
 of controversy, it will be a most fortunate 
 result if the judgment of the Court shall at- 
 tain any near approximation to perfect jus- 
 tice between the parties; clouded and ob- 
 scured as are the facts, by lapse of time, and 
 by the death of the witnesses and the per- 
 sons who were the actors in the transactions 
 which are the subject of investigation. No 
 earthly tribunal, guided solely by human 
 sagacity and skill, can claim for itself in- 
 fallibility of judgment, or entire exemption 
 from error. And I will not undertake to say 
 that the Court may not, at any stage of 
 this case, have evinced something of the in- 
 firmity of all human institutions. — But I 
 think it very obvious, that a large proportion 
 of the difficulties now to be encountered, and 
 the consequent shortcoming of the Court in 
 its present attempt to administer justice, are 
 the result of the unnecessary delays and de- 
 faults of the parties themselves, and of the 
 persons by whom they have been represented. 
 The original bill was filed in 1822. And now, 
 28 years afterwards, the case is for the first 
 time brought before this Appeal Court, for a 
 hearing upon its merits ; nor yet for a final 
 hearing upon all the matters involved. For 
 this extraordinary delay, unexampled, I hope, 
 in the judicial annals of South Carolina, the 
 
 206 
 
 parties on both sides are more or less re- 
 sponsible. And if, in consequence of these 
 causes, the Court should fall short of the 
 truth and the right, in the judgment which it 
 is about to render, the reproach must in a 
 large measure be shared by the parties them- 
 selves, and those who acted as their solici- 
 tors. It is difficult to conceive of impedi- 
 ments in this country, which with proper dil- 
 igence, could have bafHed justice for so long 
 a period. And when it is remembered that 
 some of the matters of controversy were old 
 at the commencement of the litigation, now 
 
 *502 
 28 *years ago, the nature of the difficulties 
 which have been experienced by the Court 
 may be appreciated. 
 
 There is a clear admitted misapprehension, 
 on the part of the Chancellor who tried the 
 cause, on one branch of the case. This mis- 
 take is carried into the decree, and is so 
 apparent, that it was not seriously controvert- 
 ed from any quarter. I refer to the bond of 
 Benjamin F, Hunt, to the commissioner in 
 Equity, for $4,053. The Court, by its decree 
 at February Term, 1825, had ordered the sale 
 of certain lands and negroes, for the pay- 
 ment of the debts of the joint estate. The 
 debts, (except that of Bird, Savage & Bird,) 
 so far as then known, had been divided be- 
 tween the parties representing the two es- 
 tates in equal shares. The decree contem- 
 plated that the proceeds of the sale ordered, 
 should be applied to the payment of the debts 
 thus assumed by each of the parties. And I 
 think the decree, by a fair construction, also 
 contemplated that the commissioner should 
 pay over the nett proceeds of the sales order- 
 ed, in equal moieties to the two parties, to 
 be by them applied to their share of the 
 debts which they had respectively assumed. 
 But whether the decree would beirt- that 
 construction or not, the parties had under- 
 taken to give it that interpretation, and with 
 the consent of the commissioner, eft"ected 
 their object. By his report of the 3d Febru- 
 ary, 1829, lie states, that out of the proceeds 
 of the sale he had made, in pursuance of the 
 previous order of the Court, he had paid the 
 sum of $9500 to B. F. Hunt, and the sum of 
 $9569 to Peter Cuttino, the agent of the de- 
 fendants. But Col. Hunt had been, through 
 his own bids and those of Charles T. Brown, 
 the principal purchaser at the sale. The sale 
 amounted in gross to $19,356, and he was the 
 purchaser to the amount of $13,553. For the 
 excess of his aggregate purchases over his 
 moiety, he gave his bond to the conunissioner 
 with a mortgage of 16 negroes. And this 
 bond was paid over to the agent of the heirs 
 of Savage Smith, as so much cash, in part of 
 their moiety, for which the commissioner 
 took their receipt in full, having paid them 
 the balance in cash. They are, and have been 
 since Feb. 1827, the assignees of this bond. 
 
 *503 
 They received it as so much *cash, on their
 
 BKOWX V. SMITH 
 
 share of tbe proceeds of those sales, while 
 Col. Hunt tiieii received, and has ever siuce 
 liad the enjoyment of his share. This bond 
 has been the subject of various orders of 
 injunction issuing out of chancery in this 
 case. At February Term, 1S4.S, on an appeal 
 heard by this Court, it was ordered, that the 
 injunction be dissolved, and that tiie as- 
 signees of the bond have leave to proceed at 
 law upon it. An action was brought at law 
 ui)on the bond, and judgment has been recov- 
 ered thereon. But in the circuit decree, which 
 is now the subject of appeal, it was ordered, 
 that this judgment "stand as security for the 
 amount tnat shall be decreed, and to be en- 
 joined for all beyond that amount,"' the Chan- 
 cellor deciding, from a misapprehension of 
 the facts as before stated, that in no event 
 were the defendants entitled to more than 
 half of the amount purporting to be due upon 
 the bond. 
 
 Whatever heretofore may have been the 
 grounds upon which the assignees have at 
 various times been enjoined from proceeding 
 at law upon this bond, now when the mists 
 that enveloped and obscured the complicated 
 facts of this case have been dissipated, by 
 a searching investigation, it appears to be 
 a plain legal demand, against which it does 
 .seem that there is at present no subsisting or 
 outstanding equity. To say the least, there 
 is no longer any ground for this Court fur- 
 ther to interfere in the prosecution of their 
 legal rights by the assignees, upon the 
 judgment which they have recovei-ed. It 
 is therefore ordered, that the injunction 
 ordered by the presiding Chancellor in his 
 tlecree, be dissolved, and that the assignees 
 of the bond, (who are plaintiffs in the judg- 
 ment at law,) have leave to prosecute their 
 legal rights under the same. It is also or- 
 dered, that the master of this Court, whose 
 duty it was to take the injunction bond, do 
 deliver over the injunction bond to the plain- 
 tilf in said judgment at law, together with all 
 other securities he may have taken as col- 
 lateral to said injunction bond, or in lieu 
 thereof ; to be used by the said plaintiff in 
 the suit at law, in the manner they deem 
 most expedient: provided, however, that the 
 said parties shall not be obliged to receive 
 from the master any securities collateral to 
 
 ♦504 
 or *in lieu of the injunction bond, unless 
 they think proper so to do. 
 
 I come now to consider other branches of 
 this case. And here I will observe, that there 
 is nothing in the general reasoning of the 
 circuit decree which is exceptionable. The 
 general principles of e«iuity juri.sjjrudence, 
 which the Chancellor asserts, are forcibly 
 discussed and clearly expressed. They com- 
 mand ray unqualified assent. This Court has 
 adjudged the case on those principle.s, so far 
 as they apply. If parties having dealings 
 and transactions together, and intending to 
 charge each other, will fail to keep accounts 
 
 > in the i»roper form, together with the neces- 
 I sary documents and evidence, by which these 
 accounts are to be authenticated and sup- 
 ported ; if having rights, they will slumber 
 ' over them, until time has thrown around them 
 an impenetraljle veil of oliscurity and luicer- 
 tainty ; if they will not bring their claims 
 to the judicial cognizance of Courts until 
 some of the witnesses are dead, and the 
 memory of the surviving has become dim and 
 faded, it is clear that they have no right to 
 emiiarrass those who administer justice, with 
 their stale, obscure and antiquattnl claims. 
 In the adjuilication of such claims, every 
 step that is taken is one of doubt, and there 
 can be no a.ssurance, that any judgment that 
 is rendered may not be founded in error, 
 and fraught with injustice. The Court is not 
 obliged to descend into the catacomits and 
 ciiarnel houses, and amidst the bones of the 
 forgotten dead, and by tlie dim phosphor- 
 escent light w'hich they emit, to adjudge 
 matters of right, ai)pertaining to this living 
 and l»reathing world. 
 
 The doctrine that a claim may l)e too stale 
 for investigation in this Court, even where it 
 may not be subject to the bar of the statute, 
 or to those presumptions which arise after 
 the lapse of 20 years, is not disputed. And 
 it will be applied in this case with rigour in 
 those branches of the controversy to whicii 
 it is applicable. But I will here remark, 
 that in the opinion of the Court, a claim will 
 not grow stale under the action of the Court, 
 and while it is the subject of hot litigation. 
 I will now proceed to make some other 
 *505 
 preliminary observa*tions. The Chancellor 
 in his decree observes, "that no claim can 
 be recognized, that does not come within the 
 perview of the decree of 1825. Every claim 
 anterior to it, and not embraced within it, is 
 lost. Every claim that falls within it. must 
 be governed by its provisions." "This decree 
 of 1S25," he says, "must be construed witn 
 reference to the pleadings." The Chancellor, 
 in his construction of the decree, includes 
 nothing within it but the claun set up on 
 account of the endorsement for Morton War- 
 ing, the Josiah Smith claim, and a general 
 account of the partnersiiip. Construing the 
 decree by its own terms, and that too in ref- 
 erence to the pleadings, it does not forbid or 
 e.x<-lude from investigation any liranch of the 
 case whicli has been the subject of discus- 
 sion before this Court. In reference to the 
 property ordered to be divided, it exi)ressiy 
 declares, that "the part or share of eacii is to 
 remain liable to the payment of an aliquot 
 portion of the debts, and to the final decree 
 upon the mutual claims of the parties." The 
 mutual claims of the complainant and de- 
 fendant, I apprehend, would be a moiety of 
 the joint estate to each, after every just and 
 existing claim upon it was satisfied, due 
 either to the estates of the deceased copart- 
 ners themselves, or to any third persons. 
 
 £02
 
 *505 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 After satisfying the individual claims of the 
 partners, against the joint estate, and those 
 of the creditors, the balance would be the 
 joint estate to be divided, a moiety to each. 
 And this and the other equities which arose 
 between tlie parties, after the death of the 
 partners, were "the mutual claims"' of the 
 parties, complainant and defendants. Still, 
 notwithstanding the decree does not close the 
 door against the investigation of any of the 
 claims whicli have been discussed, that will 
 not prevent some of them from being obnox- 
 ious to the objection of being too old and stale 
 to be recognized by the Court as valid and 
 subsisting claims: as will be hereafter more 
 particularly explained. 
 
 A great deal has been said about Col. 
 Hunt's position in this case, and his relation- 
 ship, as the assignee of Charle.s T. Brown, 
 to the heirs of Savage Smith. And the deed 
 of Brown and wife to him, has been the sub- 
 
 ==506 
 ject of mueli comment and discus*.sion. I am 
 of the opinion, that the deed warrants the 
 construction which has been contended for 
 on the part of the defendants, and that by 
 the terms of the deed, Col. Hunt was to oc- 
 cupy the same position in relation to the par- 
 ties interested in the joint estate, which 
 Brown and wife had done. And I further 
 thinli, that by his bill of supplement and re- 
 vivor, filed by hiiu in Feb., lSo3, he did ac- 
 tually place himself as a party before the 
 Court, in the relation to the defendants, 
 which his stipulations with Brown required 
 him to do. And that must liave been the un- 
 derstanding of all the parties at that time, 
 which some of them may have forgotten 
 since. 
 
 But all this is entirely immaterial. If his 
 deed from Brown contained no such stipula- 
 tions — if he had filed no such bill as has 
 been alluded to — still, as the simple assignee 
 of Brown and wife, his position would be 
 precisely the same as the stipulations of the 
 deed obliged him to occupy, and which by 
 his bill he proceeded to assume. His rights 
 under a simple assignment would be the 
 same with those of Brown, neither more or 
 less. Brown could not convey more than he 
 himself possessed. And his assignee would 
 be subject to all the equities in relation to 
 the interest assigned, that Brown himself 
 would, even though there had been no notice 
 of those equities. For it is a case where 
 the assignee, at his own peril, is bound to 
 take notice of the equities. Col. Hunt must 
 be considered as occupying Brown's position 
 as to the joint estate, so far as the transac- 
 tions of the latter extended, at the time of 
 the assignment. There is but one conceiv- 
 able difference which does not exist under 
 the circumstances of this case. If Brown 
 had received more than his share, I do not 
 say that Hunt would be liable to the defend- 
 ants for the excess, whatever his liability 
 might be to Brown under the terms of their 
 208 
 
 contract. The equities against Brown would 
 attach only against the remainder of the 
 share in the hands of his assignee ; and it 
 his assignee himself has received in excess, 
 he is liable to refund, and that is a person- 
 al liability. 
 
 Having thus discussed and laid down the 
 
 *507 
 principles' upon *which the decree of the 
 Court will be based, I will proceed to apply 
 them, to the different matters which are the 
 .subjects of investigation. In regard to the 
 claims set up in behalf of the estate of 
 Josiah Smith for moneys advanced by him to 
 George and Savage Smith ; in regard to the 
 claim set up by the heirs of Savage Smith 
 against the joint estate, on account of the in- 
 dorsement of George Smith for Morton War- 
 ing ; and in re,gard to the claim for the ex- 
 cess of expenditures by Savage over George 
 Smith, from ITSo to the dissolution of the 
 partnership, by the death of Savage in 1S17, 
 the Court is of the opinion, that these vari- 
 ous claims are too stale, obscure, and insuf- 
 ficiently proved. Some of the transactions at- 
 tempted to be brought into review relate to 
 the last century. And some of them, though 
 of a much later date, are too antiquated and 
 shadowy for this Court to form any satisfac- 
 tory judgment about them. AVe ai-e content 
 with the disposition which the circuit decree 
 has made of them, and this is the judgment 
 of this Court. The Chancellor was also cor- 
 rect in the decree which he made in refer- 
 ence to the administration accounts of W. S. 
 Smith and Peter Cuttino. The administra- 
 tion was taken from them in February, 1825, 
 by an order of this Court. They had account- 
 ed regularly before the Ordinary, as by law 
 required, and their accounts vouched. W. 
 S. Smith had a settlement with Col. Hunt in 
 1825, as the agent of the Commissioner, and 
 was directed to receive the assets from him. 
 The Commissioner, Gray, does report a bal- 
 ance against Peter Cuttino, but it is on the 
 ground, that his accounts were not vouched 
 before him. But Peter Cuttino's house was 
 burned, and his papers all consumed. He al- 
 so reports a small balance on the account of 
 W. S. Smith, in consequence of some sup- 
 posed overcharge of commissions. I incline 
 to think that the administrator was entitled 
 to the commissions, the charge for which 
 was overruled. The Court is of the opinion, 
 that after this lapse of time the accounts of 
 both administrators must be presumed to be 
 correct, and that there has been no malversa- 
 tion or devastavit committed by them. They 
 have both long since paid the great debt of 
 nature ; but if they were now living, and 
 
 *508 
 *parties before the Court, they would, after 
 this lapse of tinie, be protected from liabil- 
 ity to account. It is also the opinion of this 
 Court, that the assets mentioned in the in- 
 ventory must be presumed to have been prop- 
 erly disposed of. More than thirty years
 
 BROWX V. SMITH 
 
 ilO 
 
 have olapscd since the Inventory was taken. 
 And it is too late now to go into a minute 
 and strict investigation. 
 
 I approach now wliat I consider much tlie 
 most important part of the case. I mean tlie 
 que.'^tion, wliether the debt of I>ird. Savage 
 & Bird is a debt of the joint estate and 
 chargeal)le thereon : who has paid the bal- 
 ance due on the debt ; and whether the par- 
 ty who has paid said balance has a right to 
 charge the share of the other part.v, in the 
 way of contribution. In the tirst place, are 
 these questions open for discussion? are they 
 concluded by the decree of ISL'5, or any de- 
 cree heretofore made between the parties, or 
 are they barred by the presumptions arising 
 from the lapse of time? While the Chancel- 
 lor has decided that they are not concluded 
 by this decree, he has held that the claim is 
 too old and .stale to be considered, and has 
 placed it in the same category with those 
 which I have just disposed of. 
 
 I am of the opinion that this claim is es- 
 pecially recognized and adjudged as a part- 
 nership debt of George and Savage Smith, b.v 
 the decrees of 1825 and isiiO. As to wheth- 
 er it is a partnership debt, the parties are 
 concluded by those dtK-rees. It is, as to them, 
 res judicata. The decrees made special pro- 
 vision for it as a partnership debt. It is so 
 treated by the parties in the i)leadings, and 
 admitted in substance by C'ul. Hunt in his 
 letter of ISth July, 1S2G. It seems to me. 
 that if it was possible to go behind the de- 
 crees before referred to, on the (pu'stion 
 whether the claim of Bird, Savage iV Bird 
 was a joint debt of George and Savage Smith, 
 there is sufficient eviderK-e before the Court 
 to justify the conchision that it was. In 
 1826 this claim aniounted to the enormous fig- 
 ure of ^70.000. It was agreed to be compro- 
 mised for .'?20.000. provided payment should 
 be made within a given period. It became 
 an object of great moment that this condition 
 should be complied with. Hence the decretal 
 orders of Chancellor DeSaussure. looking to 
 
 *509 
 its immediate *payment. and making iirovi- 
 sion for that object. The answer of the de- 
 fendants to the original bill had stated this 
 as an outstanding claim against the joint es- 
 tate, and tliat it was proposed to be compro- 
 mised by the payment of $20,000 within a 
 specified time. And by the decree of 1825, 
 Inter alia, "it is ordered, that the adnunis- 
 trators do apply all the moneys they have in 
 hand, towards the iiayment of the amount 
 which has or may be agreed on. as a com- 
 promi.se of the claim of Bird, Savage & Bird ; 
 and to insure the payment of that claim, it is 
 ordered and directed, that the Connnissioner 
 shall apply to that purpose the tirst moneys 
 that may be made from the debts due the es- 
 tate, and the sales of property hereinafter 
 appropriated to the payment of debts of the 
 estate." In a subseiiuent part of the same 
 decree, making an appropriation of funds 
 
 3 Rich. Eq.— 14 
 
 contemplated to be raised by sales of proper- 
 ty, the decree provides as follows: "After 
 first paying the amount of the compromise 
 with liird. Savage & Bird, as aforesaid." the 
 Connnissioner "shall appl.v the funds so rais- 
 ed in liquidation in eijual portions of the 
 debts adjudged to be paid b.\ the complain- 
 ants and the defendants." 
 
 The decree of 1820. in reference to this 
 claim, provides as follows: "Whereas, cash 
 sufficient to pa.v the amount of the two 
 compronuses of the debt due to Bird. Sav- 
 i age and Bird, has not been received, and it 
 is highly important to all parties, that the 
 same shall be closed, it is therefore order- 
 ed iind decreed, that the Connnissioner may 
 raise the money necessary to pay what re- 
 mains due upon that compromise from any 
 Bank or other source. And as the said 
 judgment will, upon the i)aymep.t of the 
 said compromise, become the property of 
 the joint estate of George and Savage 
 Sniirh. the Commissioner shall take an as- 
 signment of it. to hold the same for the use 
 of the said estate : and to secure more 
 perfectly any loan made for the purpnse of 
 |)aying said compromise, the Connnissioner 
 may, by way of collateral security, assign 
 .'^aid judgment to the lender; and to pro- 
 vide for the Sinn .so borrowed, shall more- 
 over apply the first moneys received by him 
 from debts due the estate of Genrire and 
 Savage Smith as heretofore ordered. .\nd 
 
 *510 
 any mode devi.sed by the *parties respec- 
 tively to raise the sum necessary, may be 
 adopted, and the .said judgment be assign- 
 ed, and the repayment be secured r»y allow- 
 ing the lender the benefit of the decretal 
 order, made in this case to secure the cred- 
 itors." It seems to me that sophistry itself 
 cannot distort these decretal provisions in- 
 to any other construction than a ju<licial 
 recognition of the claim of Bird, Savage & 
 Bird as a joint debt of George and Savage 
 Smith. But it was asked, if such was the 
 judgment of the Court, whence the provi- 
 sion that after its payment an assignment 
 of it should be taken b.v the Connnissioner 
 for the benefit of the estate: an assign- 
 ment, it was contended, that would be in- 
 effectual, because the payment of the judg- 
 ment would extinguish it. Such, it is con- 
 ceded, would be the effect at law, but not 
 necessarily in equity. And the answer is 
 obvious and two-fold. One of the means 
 contemplated b.v the decree to raise the mon- 
 ey necessary to pay the balance due on the 
 debt of Bird. Savage & Bird, Aas to assign 
 the judgment to any person who might ad- 
 vance his money to pay that balance, and 
 to subrogate the lender to the lien of the 
 plaintiff (in the judgment) upon the prop- 
 erty of the estate. It was certaiidy within 
 the competency of the Court to give such 
 lien upon the property then under its con- 
 trol aifd management. 
 
 Another object which the Court may have 
 
 209
 
 '610 
 
 3 RICIIARDSON-S EQUl-r REPORTS 
 
 (■(iiileniiilatpd by taking an assignment of 
 the judgment, does not appear upon the face 
 of the decree ; but it is rendered quite prob- 
 able from the facts that are in evidence. 
 The debt of Bird. Savage & Bird, was origi- 
 nally a debt of Smith, Darrell & DeSaus- 
 sure, of Charleston. To this firm belonged 
 Josiah Smith, and George Smith, the fa- 
 ther of George and Savage. After the death 
 of George Smith, the elder, George Smith, 
 the younger, his executor, gave liis bond 
 to Bird. Savage & Bird for the amount of 
 the debt then due. The estate of George 
 Smitli, the elder, was divided among the 
 lieirs and distributed by private arrange- 
 ment among themselves, and funds were 
 doubtless provided for the payment of all 
 outstanding liabilities. As early as 1807, 
 we find George and Savage Smith recogniz- 
 ing the claim as a joint obligation upon 
 themselves by payments to T. Parker, Esq., 
 
 *511 
 the attorney *of Bird, Savage & Bird. Co- 
 temporaneously with the execution of the 
 bond of George Smith, the executor of 
 George Smith, the elder, Josiah Smith, one 
 of the firm of Smitlis, DeSaussure »fc Darrell. 
 executed his bond to Bird. Savage & Bird, 
 for tlie same debt. He was then also li- 
 al)le. and if the other obligor paid the debt, 
 Josiah Smith was prima facie liable for 
 contribution.^ — And as it was known that 
 he set up large claims against tlie joint es- 
 tate of George and Savage Smith for mon- 
 eys advanced to that firm, the assignment 
 ordered by the Court to be taken for the 
 joint estate may have contemplated a prose- 
 cution of a claim for contribution against 
 Josiah Smith, or a set off against the de- 
 mand which was set up on his account. 
 But whether the one or the other of these 
 explanations be sufficient to account for 
 the meaning of the Court, in ordering an 
 assignment of the judgment for the benefit 
 of the joint estate after it should have been 
 paid by the funds of the same, there is one 
 thing too clear for doubt, and that is, that 
 the Court has adjudged the claim of Bird, 
 Savage «fe Bird to be a joint obligation of 
 George and Savage Smith, and chargeable 
 upon their joint estate. If it should appear 
 that this debt has been paid by any of the 
 parties out of their own funds, can there be 
 any doubt of their equitable right to a 
 contribution from the other party? Though 
 more than twenty years have elapsed since 
 the payment, the party who has paid is 
 not precluded from setting up his claim 
 for contribution. The matter has been sub 
 judice ever sin:-e. And as I have before 
 said, a claim cannot grow stale while un- 
 der the action of the Court. 
 
 The question of fact now arises, who has 
 paid this debt? Col. Hunt paid a portion 
 of it. But the payments made by him were 
 of funds confessedly derived from a com- 
 mon source, namely, assets lielonging to the 
 joint estate. The balance remaining due 
 210 
 
 (after the payment from the joint funds) 
 was. on the 16th day of December. 1826, 
 twelve thousand one hundred and forty- 
 four dollars, fifty cents. The ^Master so 
 reports. He also reports, that this balance 
 was paid by funds borrowed from tlie Bank 
 of the United States, on the notes of 
 Cliarles T. Brown and the distributees of 
 
 *512 
 the estate of Savage Smith, and *that the 
 notes in Bank were finally taken up b,v 
 funds belonging to the estate of Savage 
 Smith. Upon a careful examination of the 
 evidence on tliis subject, the Court is en- 
 tirely satisfied with the Master's report in 
 this respect. It therefore follows, that the 
 defendants, the distributees of Savage 
 Smith, are entitled to a contribution from 
 Col. Hunt for one-half of the amount thus 
 paid, with interest thereon, from the day 
 of payment. So much of the Chancellor's 
 decree as disallows this claim is reversed, 
 and the Master's report, in relation to the 
 same, is confirmed, and made the judgment 
 of this Court. But there is another matter 
 to be considered in connexion with this 
 subject. The decree of 1825, wliich ordered 
 a partition of certain lands and negroes, 
 provided, expressly, that the part or share 
 of each should remain liable to the payment 
 of an aliquot portion of the debts, and to 
 tlie final decree upon the mutual claims of 
 the complainants and defendants. And the 
 decree of 1826, before quoted, ordered the 
 judgment of Bird, Savage and Bird, to be 
 assigned to any person who might advance 
 the funds to pay the balance due thereon, 
 as collateral security, and to secure more 
 perfectly any loan made for the purpose of 
 paying the amount due on the compromise. 
 And contemplating a failure to obtain the 
 funds from any other source, and that the 
 parties themselves (on account of the magni- 
 tude of their interests involved in the imme- 
 diate payment of the amount due on the com- 
 promise) might be induced to raise the money 
 for that important object, the decree pro- 
 ceeds to provide especially for their security 
 in such an event. It declares that "any 
 mode devised by the parties, respectively, to 
 raise the sum necessary, may be adopted, 
 and the said judgment assigned, and the re- 
 payment secured, by allowing the lender the 
 benefit of the decretal order, made in this 
 case to secure the creditors." On the force 
 and effect of these orders, it is the opinion 
 of this Court that the sum hereby adjudged 
 to be due to the heirs of Savage Smith fov 
 the sum paid by them on the balance of the 
 debt of Bird, Savage & Bird, as aforesaid, 
 with interest on the same as aforesaid, i.* 
 a charge, and has a lien, upon the share of 
 
 *513 
 the joint estate, real *and personal, of 
 George and Savage Smith, assigned and al- 
 lotted in the partition thereof to the said 
 Benjamin F. Hunt, and the share of the 
 said Benjamin F. Hunt is especially liable
 
 BROWN V. SMITH 
 
 to satisfy the debt hereby adjiul.L'ed to be 
 due to the heirs and distributees of Savape 
 Smith, as the subroj^ated creditors of (Jeorjje 
 and Savage Smith. 
 
 Sc'liedule A. of the coiiimissli>iier s reiiort, 
 contains a statement of the private debts of 
 (Jeorge and Savage Smith, paid out of the 
 funds of tlie joint estate. This Court is of 
 the opinion, tliat such an empiiry i.s not im- 
 proper, nor conchuh'd by any decree hereto- 
 fore made, nor iiy presumptions, or any other 
 imjiedinient tliat would < lose the door against 
 investigation. Tliougli tlie property and in- 
 terests of the brothers \ve;e Idended to an 
 almost unprecedented degree, yet it could 
 .scarcely be (ttherwlse, tlian that they should 
 owe some individual debts; and those con- 
 tracted after tlu' death of Savage by (Jeorge, 
 and the funeral expenses and ph,vsician"s 
 bill, &c. of each, were necessarily several and 
 individual. These must be charged of course 
 as individual debts, and accounted for ac- 
 cordingly. In reference to the debts due by 
 either, previous to the dissolution of the co- 
 partnership by the death of Savage, and pur- 
 porting to be individual, this Court will lay 
 down one rule api)licable to them all. From 
 the great degree of intimacy and confidence 
 between the brother.s. and the perfect amal- 
 gamation of their property and Interests, the 
 in'inia facie presumption must be, that every 
 debt contracted by either of them, whether 
 in their joint or individual names, should 
 be regarded as a joint debt, until the con- 
 trary be satisfactorily shewn ; the burden 
 of proof to rest ujion the party who aftirms 
 the debt to be individual and personal. The 
 establishment of this rule, by which the fu- 
 ture investigations on this subject are to be 
 directed, is as far as the Court will go at 
 present on this part of the case. As this 
 branch of the litigation has not been examin- 
 ed by the Circuit Court, (the Chancellor con- 
 sidering himself precluded from the inves- 
 tigation by the lapse of time, and the stale- 
 ness of the claim,) it is deemed advisable that 
 
 *514 
 the transactions embraced in *schedule A. 
 of the commissioner's reinnt, be remanded 
 back to the Circuit Court, for a hearing there 
 upon the merits under the principle herein- 
 before expressed. After the death of George 
 and Savage Snnth, Charles T. Brown, whose 
 wife was the sole distributee of (Jeorge Smith, 
 had some of the negroes of the joint estate 
 on hire. The commissioner, in his report, 
 has cliarg«'d this amount on the share of the 
 estate which has been assigned by Brown to 
 B, F. Hunt. The administrators also paid 
 to Charles T. Brown, before the assignment, 
 various sums on account of the estate, as 
 rhey also did to the heirs of Savage Smith. 
 The commissioner, in schedule B. (No. 1 and 
 2 of his report* has set forth these various 
 matters in a parti<ular manner. This Court 
 is of the oi)inion (as has betVire been express- 
 ed) that the assignee of Brown, as to the 
 
 property assigned, Is subject to the same 
 etiuitios that would attach upon Brown's 
 share, if he was still the owner, and a party 
 Ix'fore the Court. And no reason is perceiv- 
 ed why this account should not be<ome the 
 subject of investigation. But from the views 
 which the presiding Chancellor took, this 
 branch of the case has never been adjudged 
 upon its merits by the Circuit Court : for 
 this reason it is remanded to that Court for 
 a hearing. 
 
 For the same reason, so much of the con- 
 troversy as relates to the negroes which have 
 been sold by Col. Hunt, and so nmcb thereof 
 as relates to the account ot Col. Hunt for 
 professional services, antl likewise so much 
 thereof as relates to the purchase by B. F. 
 Hunt of Clegg's Point, and his accountability 
 for the same, are remanded to the Circuit 
 Court for a hearing. And it is ordered that 
 B. F. Hunt have leave to go before the Mas- 
 ter and offer evidence in regard to his ac- 
 count for professional services. The question 
 as to costs is reserved. 
 
 It is ordered and decreed that the decree 
 of the Circuit Court be reformed in the par- 
 ticulars hereinbefore stated, so that it is 
 made couformable to this appeal decree. In 
 all other respects, it is ordered and decreed 
 that the Circuit decree be a(tirn)ed. and the 
 appeals be dismissed. 
 
 DUXKIN and CALDWELL. CC. concurred. 
 *515 
 
 *At June sittings of the Circuit Court for 
 Charleston, the cases were lieard, on the mat- 
 ters referred back to the Court, by his Honor 
 Chancellor Dunkin, who made the following 
 decree : 
 
 L>uukin. Ch. These causes were heard un- 
 der the decree of the Appeal Court, pronounc- 
 ed in Februai-y la.st. It is imifortant that 
 the decree then made should be tirst read, 
 presenting, as it does, not only a succinct 
 history of the case, but the principles of ad- 
 judication, as well as the particular subjects 
 thereby adjudicated and settled. 
 
 I'reliminary to the consideration of the 
 matters referred back to the Circuit Court, 
 it is proper to state that the defendant pro- 
 posed to open the inquiry in relation to the 
 debt of Bird, Savage & Bird. I was of opin- 
 ion that this was one of the points on which 
 the judgment of the Appeal Court was clear, 
 tinal and conclusive. But as it was strenu- 
 ously and repeatedly urged, it is due, as well 
 to the counsel as the Court, to advert to so 
 much of the judgment of the apiK»al tribunal 
 as seemed to me to consider and determine 
 this (piestion. At page 7 of the decree, the 
 Chancellor, after premising that he "consid- 
 ered this as much the most important part 
 of the case," adjudicated it to be a partner- 
 ship debt of George and Savage Smith. 
 Then at page 9. "'If it should appear that this 
 debt has been paid by any of the i)arties out 
 of their own funds, can there be any doubt
 
 *515 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 of their eqnitnble right to a contribution 
 from the other party?" Thus far the prin- 
 ciple had l)eeu announced. The Cliancellor 
 then proceeds : "The question of fact now 
 arises, who has paid tliis debt?" He adverts 
 to the Master's report as making the balance, 
 (after deducting certain payments from the 
 joint funds,) on the 16tli December. 1826, 
 twelve thousand one hundred and forty-four 
 50-100 dollars, (.?12,144.50 cents.) "The Mas- 
 ter reports," says the decree, "'that this bal- 
 ance was paid by funds borrowed from the 
 Bank of the United States, on the notes of 
 Charles T. Brown and the distributees of the 
 estate of SaA'age Smith ; and that the notes 
 in Bank were finally taken up by funds be- 
 longing to the estate of Savage Smith. Upon 
 a careful examination of the evidence upon 
 this subject, the Court is entii'ely satisfied 
 
 *516 
 with the *Master's report in this respect. 
 It therefore follows that the defendants, the 
 distributees of Savage Smith, are entitled to 
 a contribution from Col. Hunt for one half 
 of the amount thus paid, with interest there- 
 on from the day of payment. So much of the 
 Chancellor's decree as disallows this claim is 
 reversed, and the Master's report in relation 
 to the same is confirmed, and made the judg- 
 ment of this Court." The question is then 
 considered whether this sum constituted a 
 lien, and after discussing the subject, the 
 Chancellor announces, "as the opinion of the 
 Court, (p. 11,) that the sum hereby adjudged 
 to be due to the heirs of Savage Smith, for 
 the sum paid by them on the balance of the 
 debt of Bird, Savage & Bird, as aforesaid, 
 with interest on the same as aforesaid, is a 
 charge, and has a lien, upon the .share of the 
 joint estate, &C., assigned and allotted to the 
 said Benjamin F. Hunt," &c. 
 
 It is not too much to say, tliat no point of 
 the case was so thoroughly investigated, so 
 matiu'ely considered, and none could be, as I 
 thought, more distinctly and conclusively ad- 
 judicated. 
 
 It seemed to be conceived that some sub- 
 sequent orders of the Chancellor on the Cir- 
 cuit might bring into question the conclusive- 
 ness of this judgment of the Appeal Court. 
 I can perceive no grou.nd for such impression, 
 if it exists. Several oth^r matters were re- 
 manded to the Cii'cuit Court for consideration. 
 That Court was held innnediately after the ad- 
 journment of the Court of Appeals, and the 
 cause was not ripe for hearing. It might be 
 that, in the investigation of the matters re- 
 served. Col. Hunt would obtain a decree ; and 
 the Chancellor, in the exercise of his discre- 
 tion, thought proper to susi>end proceedings 
 under the fi. fa. of the distributees of Savage 
 Smith, although he gave them leave to lodge it 
 to bind. That such was the understanding of 
 the Chancellor seems clear enough, from his 
 remark in refusing an order previously pro- 
 posed by Mr. Mitchell. "It is refused." says 
 he, "on the ground that it would be im- 
 
 212 
 
 proper to grant it until the final accounting 
 is had upon the matters of controversy re- 
 served by the Appeal Decree." 
 
 The first matter in controversy reserved 
 *517 
 by the Appeal Decree *"is Schedule A of the 
 Master's report." This relates to the in- 
 dividual debts of the partners, said to have 
 been paid by the administrators out of the 
 joint estate. Savage Smith died in April, 
 
 1817. George Smith survived until Septem- 
 ber, 1818. On this subject, the Court of Ap- 
 peals say, "It could scarcely be otherwise 
 than that thej- should owe some individual 
 debts ; and those contracted after the death 
 of Savage, by George, and the funeral ex- 
 penses and physician's bill, &c., of each, were 
 necessarily several and individual. These 
 must be charged, of course, as individual 
 debts and accounted for accordingly." In 
 reference to those due previous to the death 
 of Savage, and purporting to be individual, 
 the Court declare that, from the peculiar 
 manner in which their property was held, 
 and their bu.siness conducted, "the prima 
 facie presumption must be, that every debt 
 contracted by either of them, whether in 
 their joint or individual names, should be 
 regarded as a joint debt, until the contrary 
 be satisfactorily shown : the burthen of proof 
 to rest upon the party who affirms the debt 
 to be individual and personal." 
 
 George Smith lived in Charleston and 
 transacted all the business of the firm with 
 the Banks here. The evidence left the im- 
 pression on my mind that the notes of George 
 Smith, paid by the administrators, December, 
 
 1818, were not original transactions, but re- 
 newal of debts contracted during the exist- 
 ence of the copartnership. The decree of 
 Ann Pursell, the judgment of Susannah For- 
 ester, and the acknowledgment to T. Smith, 
 jun.. for the State Bank Shares, (dated 1802,) 
 all fall within the rule prescribed by the 
 Court ; so far as can be perceived, the cause 
 of action or contract existed during the co- 
 partnership, and prima facie was a joint 
 debt. On the other hand, the subscriptions 
 to the Dorchester Church, and bond to the 
 Free School, were evidently individual ; so 
 of the note of James C. Hourin, (called II. 
 Hourin in the printed report.) On reference 
 to the administrator's accounts, this appears 
 to have been a note of James C. Hourin, 
 dated 1818, and. endorsed by George Smith, 
 which the administrators were obliged to 
 pay, together with costs of protest. The 
 whole amount of the debts properly payable 
 
 *518 
 by George *Smith, amount to five hundred 
 and sixty-one dollars; those payable by the 
 representatives of Savage Smith, to one hun- 
 dred and seventy-eight dollars and seventy- 
 five cents. 
 
 The next matter ordered by the Appeal 
 Court to be considered was so much of the
 
 BROWN V. SMITH 
 
 *520 
 
 MasterV ReiM.rt, and the exc(n'ti<ins thereto, ! stniction of the decree as far as was practie- 
 as relates to the sums advanced by the ad- j aMe. Admittins that only then existing mu- 
 niinistrators to C. T. Brown and wife, and I tual claims were to be included, the Court say 
 to the heirs of Sa\r.j,'e Smith, previous to 
 
 the assi;:nment, and also to the accdunt of 
 ne;,'ro hire after the death of (leor.ue Smith. 
 These matters are embraced in the schedule 
 (B) No. 1 and 2, and in schedule (C) of the 
 Master's Report. 
 
 On these subjects the lauRuaue of the Ap- 
 peal Court is, "this Court is of the opinion 
 (as has been before expressed) that the as- 
 signee of Brown, as to the property assigned, 
 is subject to the same equity that would 
 
 the mutual claims of the complainants and 
 defendants would be a moiety of the joint 
 estate to each, after every claim due to the 
 estates of the decea.sed partners, or to third 
 persons, was satisfied ; after satisfying cred- 
 itors, and the indl\idual claims of the part- 
 ners again.st the joint estate, the balance 
 would be the joint estate to be divided, a 
 moiety to each ; and this, and the other 
 eciuities, which arose between the parties aft- 
 er the death of the partners, were the mutual 
 
 attach upon Brown's share, if he was still I claims of the parties, complainants and de- 
 
 the owner and a party before the Court 
 Some objection was made as to the form of 
 some of the loose receipts given by C. T. 
 Brown to the administrators, J. and S. 
 Smith. The various payments made to C. T. 
 Brown run through a series of years from 
 ISIS to 1825 inclusive : these sums were j 
 regularly charged in the accounts kept by | 
 the administrator, and annually passed by 
 the Ordinary. These accounts, down to Oc- 
 tober, 182.*?, were filed as an Exhibit in W. 
 S. Smith's answer to the bills of Brown and 
 wife, filed in 1S22. The admiiustration ac- 
 count was clo.sed in 182."). and the admin- 
 istrator. William S. Smith, has been many 
 years dead. It is not doubted that the mon- 
 ey was paid to Brown, and it is quite too 
 late now to suggest that the payments may 
 have been made on account oi other trans- 
 actions ; some sixty-seven negroes, belonging 
 to the joint estate, went into the possession 
 of Charles T. Brown some time after the 
 death of his father-in-law, George Smith, for 
 which he agreed to allow an annual hire of 
 two thousand dollars. This agreement with 
 the administrator is established by his letter 
 making the proposal, as well as by his tes- 
 timony at p. Ill of the Master's report. He 
 kept the negroes 1820. 21, 22, 2:i and 1824; 
 they were then sent from his place to be sold 
 by the Commissioner, in February, 1825 ; 
 
 *519 
 
 ♦they are referred to particularly in the 
 order of that date as "the negroes now hired 
 to C. T. Brown." 
 
 The matters embraced in schedules, A, B 
 and C, were mutual claims existing between 
 the complainants, C. T. Brown and wife, 
 and the defendants, heirs and (li.<tributees 
 of Savage Smith, in reference to which the 
 decree of "1825 ordered, in relation to the 
 mutual claims of the parties, the Connnission- 
 er do examine and report upon the several 
 accounts of the conu'lainants and defendants 
 with the estate;" and the share allotted to 
 each was declared "to remain H.nble to the 
 final decree upon the mutual claims of the 
 complainants and the defendants." When 
 this decretal order was made, the greater 
 number of Savage Smitli's heirs were minors. 
 The Court of Appeals have settled the con- 
 
 fendants." What were the "other equities" 
 subsisting in 18'_'5, and which had arisen be- 
 tween the parties after the death of the part- 
 ners, which ought properly to have been ad- 
 justed before partition, and for the security 
 of which this provision was made? Brown 
 had received payments from the administra- 
 tors on account of his interest or share every 
 year since the death of George Smith, the 
 surviving partner. He had also hired sixty- 
 seven negroes for five years of that period 
 at a fixed rate. In the same manner, the 
 heirs of Savage Smith had received sums 
 from the administrators during the same 
 time, on account of their share. These 
 should have been settled before a partition 
 was made. This being waived in consequence 
 of the anxiety to have immediate partition, 
 an order of reference was made, and a spe- 
 
 *520 
 
 *cific lien was declared in order to secure 
 the satisfaction of the final decree on the 
 Connnissioner's report. This was the only 
 mode left of securing to each a moiety of 
 the joint estate after payment of debts. Reg- 
 ularly each party should have accounted for 
 what he had received, and taken only the 
 balance of his moiety. It was thought well 
 enough to let each take a moiety and be 
 accountable for any surplus by a specific 
 lien on the shares received. But an inquiry 
 still remains, whether, in accounting for the 
 sums thus received by them respectively, the 
 parties are liable for interest. I considered 
 the negro hire on the same footing as any 
 other payment made to Brown. It was not 
 understood that he was to pay the hire to the 
 administrators, but was to account for it as 
 so nuich received by him. Their omission 
 to make any annual requisition, or even to 
 take a note, evince the understanding of the 
 parties. In matters of accounting, the al- 
 lowance of interest is governed by no fixed 
 or established rules — no rules can be made 
 which should be applied arbitrarily in all 
 cases. 
 
 Thus, on the bond given to Robert Ileriot, 
 in February, 182G, he was probably charge- 
 able with interest by the concession of all 
 parties. So in regard to the compromised 
 debt of Bird, Savage & Bird, for which both 
 
 213
 
 *520 
 
 3 RICTTARDSON'S EQUITY REPORTS 
 
 were liable, but wliich was paid by the heirs 
 of Savage Smith by a loan made from the 
 United States Bank ; in making the decree 
 for contribution, ihe Court ordered the pay- 
 ment of interest on acknowledged principles 
 of the Court. But the sums received by 
 Brown and wife, and by the representatives 
 of Savage Smith, from the administrators, 
 were received by the parties as their own, 
 and they were entitled to receive them. They 
 were not expected to refund ; they were in 
 no default for not refunding. Even where 
 a legatee has been erroneously paid, in re- 
 calling that payment the general rule is not 
 to charge interest ; Gittins v. Steele. 1 Swant. 
 199. But these were not erroneous pay- 
 ments. The parties were mutually entitled 
 to an account of what had been paid. But 
 in the allowance or disallowance of interest, 
 all the circumstances are properly taken into 
 consideration, and the character of the 
 
 *521 
 claims, *as well as the vigilance or laches of 
 the party insisting on the payment of inter- 
 est, are always prominent features in direct- 
 ing the judgment of the Court. It is not pro- 
 posed to attempt a narration of this litiga- 
 tion. It is not inappropriate, however, to 
 remark, that one of the Chancellors, who 
 heard the cause at the Circuit, refused any 
 investigation of these matters in consequence 
 of the staleness of the claims and the laches 
 of the parties in prosecuting them. It is 
 not to be denied, that great and almost un- 
 precedented delay took place in prosecuting 
 the litigation. In no inconsiderable measure 
 this was attributable to the parties ; al- 
 though the claims have been preserved, the 
 demand of interest upon them seems obnox- 
 ious to many of the principles which in- 
 fluence the Court. After a careful considera- 
 tion of all the circumstances, I think no in- 
 terest should be charged on the sums thus 
 received by the parties respectively ; nor do 
 I think it should be charged on the balance 
 which may be found due in schedule (A.) 
 
 Schedule (F.,) page 109, and Mr. Hunt's ac- 
 count for professional services, (p. 163,) may 
 be considered together. The Report on this 
 subject is at p. 9G ; the princii)al of the sums 
 charged by the Master to the defendant, 
 amounted to twelve hundred and seventy dol- 
 lars. These were for the value of a negro 
 retained by the defendant in February, 1825, 
 and for sums received from the auctioneers, 
 who sold two other negroes of the estate, and 
 for an amount collected on Theus's bond. 
 These charges seem well sustained by the 
 proof. Mr. Hunt's account against the es- 
 tate amounts to fourteen hundred and forty- 
 nine 50-100 dollars. This was referred back 
 by the Appeal Court in order that an op- 
 portunity might be afforded for vouching and 
 investigating the same. Mr. Hunt was joint- 
 ly interested with the heirs of Savage Smith ; 
 and after the decree of 1.S25, any suit against 
 the joint estate was defended by him. This 
 
 214 
 
 is apparent, from the records produced, as 
 well as from the oral testimony taken by the 
 Master. The accounts filed is from 1825 to 
 1828, inclusive ; all the items, except those 
 for professional services, strictly appear to 
 have been sustained by proper vouchers. In 
 
 *522 
 reference *to those for professional services, 
 the records wei-e adduced, which sb.owed the 
 character of the cases. In the litigation 
 which appears under various titles of Hugh 
 Fraser, executors Josiuh Smith, and execu- 
 tors Clegg, very important services were cer- 
 tainly rendered, and the joint estate was pro- 
 tected from the payment of a large demand, 
 which was pressed through the several tri- 
 bunals, with a reasonable pi'ospect of success, 
 but which was ultimately dismissed. At this 
 distance of time, it is not to be expected that 
 very positive testimony should be adduced as 
 to the value of services rendered in each 
 particular case. The accounts seem to me 
 sufficiently well sustained ; and that Col. 
 Hunt is entitled to credit for that amount. 
 Deducting the twelve hundred and seventy 
 dollars with which he is chargeable, a bal- 
 ance remains of one hundred and eighty dol- 
 lar.s, for one-half of which, the representa- 
 tives of Savage Smith would be liable to him. 
 The demand in relation to Clegg's Point, 
 (strictly speaking, "Michau's,"' for it is be- 
 low the point, though originally part of the 
 same tract,) alone remains to be considered. 
 Every fact concerning this matter is either 
 of record or undisputed. The proceedings in 
 Perdriau and wife v. B. F. Hunt et al. (Riley's 
 Eq. Cases, 88,) were put in evidence. Among 
 the debts due to the copartnership estate of 
 George and Savage Smith, was a demand 
 against Paul Michau, deceased. Clegg's Point 
 was the inheritance of Lydia Clegg, who had 
 married Paul Michau, and had died, leaving 
 her husband and five children surviving, one 
 of whom afterwards died. In 1795, Michau 
 mortgaged Clegg's Point to George Butler, 
 and in 1801, he mortgaged the same to George 
 and Savage Smith. In 1820, a bill was filed 
 by the creditors of Paul Michau, to foreclose 
 these mortgages. In addition to his own 
 share, Michau had purchased the interests 
 of two of his children. A decree of foreclo- 
 sure was made, and the land ordered to be 
 sold, and by a decree of the Appeal Court in 
 1822, ten-fifteenths of the proceeds of sale 
 were ordered to be paid to the creditors of 
 Michau, three-fifteenths to Buford and wife, 
 and two-fifteenths to Perdriau and wife. Un- 
 
 *523 
 der the decree, *Clegg's Point was sold by 
 the Commissioner in Eiiuity, in 1822, to Rob- 
 ert Francis Withers, for twenty-two thou- 
 sand dollars. R. F. Withers paid off the debt 
 of George Butier, which was the eldest lien 
 on Michau's share, and he bought up, and 
 thereby extinguished the right of Buford and 
 wife. He also made several other payments 
 on account of his purchase to the Commis-
 
 BROWX V. SMITir 
 
 *52r 
 
 »i(>nor in Equity, who jiaid ovor the sovonil 
 Diiiouhts to those ropivaMitiiig the rlaiiii of 
 (Ifor-'i- and Ssivji;;*' Smith. lUit in April, 
 Isi'T. U. F. Withns, luivin;,' faikd to couijily 
 A\ itli tlie tfrni> of salt'. (■|f;,';;'s Toint was 
 sold jiiK'cr an oriior of Court, at tho risk of 
 the former purrhaser. and was hid off hy B. 
 r. Hunt, for the sum of ei;:ht thousand and 
 ten dollars. Tiie report of sales was made 
 to the Court hy the Conmnssioner, at the 
 Winter Sittings, ISliS. in whiih the order of 
 <.ile is recited, preserildni;. among other 
 things, that the '•purchase money" (not paid 
 in cash.) "'should he secured hy honds so di- 
 vided, a.s to he paid over to the parties in the 
 pioportions to wliieli they are entitled, with 
 good personal security if reijuireil. and a 
 mortgage of the prenuses." 
 
 Ihe title deed was not to he delivered, un- 
 til all the instalments were fully paid. It i.s 
 stated in the case in Kih-y. that H. V. Hunt 
 l)aid $770 in cash, and gave his hond for the 
 halance with interest on the whole amount, 
 payable ainiually, and a mortgage of the 
 jMoperty. Mr. Heriot, the Comnnssioner. in 
 Ids report of 182S. ju.st mentioned, states, 
 among other things, that Samuel I'erdrieau 
 had made a "claim on the fund, on account 
 of the payments made hy the former pur- 
 chaser — that this was resi.sted, and he had 
 heen ordered to proceed hy Bill and Answer." 
 He stated also, "that Hen.i. 1'. Hunt, the pur- 
 chaser, claimed, as the assignee of a moiety 
 of the estate of George and Savage Smith, an 
 interest in one-lialf of eleven-fifteenths of the 
 amount of sales." 
 
 Perdrieau and wife did proceed hy Bill 
 and Answer. The amoxnit due to them was 
 lixed and established, "and this RiU,"' say the 
 Court, (at p. 01 Hiley,) was tiled hy "the com- 
 plainants, (Perdrieau and wife.) to enforce 
 
 *524 
 the payment of Mr. Hunt's hond. *or the fore- 
 closure of the mortgage, and to ohtain that 
 share of the proceeds to which they are en- 
 titled. The Chancellor has decreed accord- 
 ingly." 
 
 The amount which had been foinid due 
 I'erdrieau and wife, including interest, was 
 (.'S.!..")'.»4.S7,) three thousand five hundred and 
 ninety-four .S7-1(J0 dollars. 
 
 The decree of the Chancellor was alhrnied, 
 and it was ordered, that unless the amount 
 reported to be due Perdrieau and wife was 
 palil on the first Monday in April next, (is;!7,) 
 the land should be sold in pursuance of the 
 <lecree, hy which, after paying Perdrieau and 
 wife, the proceeds were to he held subject to 
 the further order of the Court. The defend- 
 aid had taken possession of Clegg's Point 
 tnider his purchase in April, ISL'7, and had 
 held and cultivated the same. Failing to 
 comply with the decree in the ca.se of I'erd- 
 rieau and wife, the land was sold by the 
 Comnnssioner, and purchased by a third per- 
 son. 
 
 It is difficult to iiercei\e ui>on what ground 
 
 the defendant phould he excused, or released, 
 from the payment of this purcha.se. When 
 the facts are understood, he is just as plaia- 
 l.v n'sponsible as for the bond given to the 
 connnissitMier for $4,0.>5. on the purchase of 
 negnx's, in isj."). which has already been the 
 subject of adjudication. It is said as a rea- 
 son, that "he did not receive titles for the 
 propert.v, and it was afterwards sold under 
 the decree of Perdrieau and wife, and was 
 lost to Mr. Hunt, the former piu-chaser." By 
 the terms of sale the title deed was not to he 
 delivered until the purchase money was ful- 
 j ly paid. As to the rest, it is precisely as if 
 j one had purchased at the comuussioner's sale 
 i on a credit of ten years or more, and given 
 ' bond and mortgage to secure the payment. 
 I He holds for ten years, pays a tritle or noth- 
 I ing on the debt, and at the expiration of the 
 credit, the premises are sold for less tlian the 
 amount due. The purchaser is to he exempt- 
 ed from the payment of the balance because 
 the land was sold under a decree of ft>reclo- 
 sure, and "lo.st to the former purchaser." 
 That is this case. The defendant, as a pur- 
 chaser, had nothing to do with the claim of 
 I'erdrieau and wife. He should have com- 
 
 *525 
 plie<l *with the terms of sale. Suppose a 
 third person had bid off the land, in April, 
 1S27, under the terms of the sale prescribed, 
 had paid $77(5 of the purchase money, and 
 taken possession, what concern had he with 
 the claim of Perdrieau and wifeV As Mr. 
 Heriot states in his report of 1S2S, the claim 
 of I'erdrieau was "on the proceeds" of the 
 sale. It could be nothing else: and is so 
 set forth in the proceedings afterwards in- 
 stituted hy him. His claim on the land was 
 only under the lien created by the terms of 
 sale, according to which the defendant pur- 
 chased. 
 
 Why then should the third person so pur- 
 cliasing, be excused from paying his bid? 
 And in what manner does the defendant's 
 situation constitute a difference? The de- 
 fendant insists, too, as will be shewn in the 
 secjuel, that the purcha.se was on account 
 of himself alone, as his individual transaction, 
 and for his own benefit. Although, as a pur- 
 chaser, the defendant was not authorized to 
 inquire about the claim of Penlrieau and 
 wife, yet, as a litigant, as a person, in the 
 language of Mr. Heriot's rei)ort. clainung 
 a moiet.v of so much of the proceeds as he- 
 longed to the estate of (Jeorge and Savage 
 Snnth, he might contest the amount due Per- 
 drieau and wife out of the proceeds of sales; 
 whatever was not due to Perdrieau and wife, 
 belonged to the estate of (Jeorge and Savage 
 Snuth, and for a moiety of that he was enti- 
 tled to an e(iuitable discount on his bond to 
 the conunissioner. The other moiety belong- 
 ed to the heirs of Savage Snnth. The de- 
 fendant contested the amount claimed by 
 Perdrieau and wife. He alone tiled an an- 
 swer to the bill. The issue was against him.
 
 3 RICITARDSON'S EQUITY RErORTS 
 
 In April, 1827, when Clet^l;■s Point was pur- > 
 cliased by the defendant, tlie amount due 
 Perdrieaii was less tlian three thousand dol- | 
 lars, (the exact amount is easily to be ascer- 
 tained from the record in the case which was 
 put in evidence). If a third person had pur- 
 cliased and paid the .fSOlO on that day, the 
 amount due to Perdrieau and wife being de- 
 ducted, the surplus would have been divided 
 between the defendant and the heirs of Sav- 
 age .Smith. And on tlie same principle it 
 should now be adju.sted. Tlie defendant is re- 
 sponsible for liis purchase, .%S()10, Imt he is 
 equitably entitled to a credit for the sum due 
 
 *526 
 
 *Perdrieau and wife at the time of tlie sale, 
 and for the sum of $775.50 cts. paid to the 
 commissioner. P^'or one moiety of the bal- 
 ance, with interest from the 16tli April, 1S27, 
 he is Indebted to the complainants. But this 
 is, I think, a personal debt and does not fall 
 within the purview of the decree of 1825. 
 The comphiinaiits, liowever. insist that, as 
 between them and the defendant, he should 
 be charged with the purdiase of Clegg's 
 Point at ten thousand dollars, instead of eight 
 thousand and ten dollars. It will be remem- 
 bered, that five years previously, this planta- 
 tion had been sold to Robert F. Withers, for 
 twenty-two thousand dollars. The allegation 
 is something of this kind, that when the de- i 
 fendant bid off Clegg's Point at $8,010, it 
 was understood between tlie defendant and 
 Peter Cuttino, who represented the complain- 
 ant's interest, that the land should be re-sold 
 for the benefit of the copartnership estate; 
 that immediately after the sale to the de- 
 fendant, an unexeeptionable purchaser was 
 found, at ten thousand dollars — and that "it 
 was finally agreed that the complainant, as 
 between himself and the defendants, should 
 hold the plantations on his own account, at 
 ten thousand dollars." The evidence on this 
 subject is derived from the coteniporaneous 
 correspondence between the defendant and 
 Peter Cuttino. 
 
 It will be observed, that the object is to set 
 up a new and distinct contract from that 
 made between the defendant and the commis- 
 sioner. 
 
 Tlie defendant relies on that — insists that 
 he purchased for his individual benefit, and 
 that there was no privity or understanding 
 between himself and any other person. A 
 .serious obstacle to the consideration of this 
 claim, is the late period at which it was 
 brought forward. The defendant purchased 
 from the commissioner, on the 16th April. 
 1827. It constituted, therefore, no part of 
 the matters originally referred for investiga- 
 tion. In accounting for the assets of George 
 and Savage Smith, the debt due by Paul 
 Michau would be properly a subject of In- 
 quiry, and the proceedings in relation to it. 
 But this alleged agreement is, for the first 
 216 
 
 *527 
 
 time, brought to the notice of the *Court in aa 
 answer filed by tlie representatives of Savage 
 Smith, on the 25tli September, 1834, more 
 than seven years after the purchase, and 
 their cross bill was not preferred until No- 
 vember, 1838, nearly eleven years after the 
 purchase from the commissioner, and the al- 
 leged new agreement between the parties; 
 neither in the answer of 1834, nor in the 
 cross bill of 1838, is it alleged that there ex- 
 isted any written agreement between the par- 
 ties; and the correspondence on which the 
 complainants now rely, was not in any man- 
 ner exhibited or put in evidence until the 
 meeting before the Master, in August, 1842, 
 (see page 116). I think the sequel of that cor- 
 respondence was well calculated to put Mr. 
 Cuttino on his guard, and to advise him 
 that he and the defendant did not place the 
 same understanding on what had passed be- 
 tween them. The inactivity of M:-. Cuttino 
 for the several ensuing years, may, in some 
 measure, be accounted for, in the relations 
 which the defendant professionally occupied 
 towards the joint estate. But when parties 
 having a supposed right to establish a trust 
 of this character, and thereby to vary the 
 terms of a judicial sale, lie by for fifteen 
 years with the evidence of the trust in their 
 possession, they can have no cause to com- 
 plain, if the Court regards them as having 
 waived such a right, and restricts them to the 
 benefit of the public sale, about which there 
 exists neither doubt nor controversy. I am 
 not at all satisfied that, in this matter, full 
 justice has been done to the complainants; 
 but in the language of the Court of Appeals, 
 "if, in conseiiuence of these extraordinary 
 delays, the Court should fall short of the 
 truth and the right in the judgment which 
 it renders, the reproach must, in a large 
 measure, be shared by the parties themselves, 
 and those who acted for them." I am of 
 opinion that the measure of the defendant's 
 liability, is the price at wdiich he bid off 
 the land at the commissioner's sales. 
 
 The report of the Master, and the account 
 submitted therewith, must be reformed ac- 
 cording to the principles of this decree. But 
 it is manifest that, "upon the matters reserv- 
 ed by the appeal decree," the defendant is 
 
 *528 
 
 largely indebted to the com*plainants, and, 
 as the proceedings under the fieri facias were 
 only suspended with a view to that inquiry, 
 and "until the further order of the Court," 
 the complainants now have leave to enforce 
 the execution issued under the appeal decree, 
 and which they had leave to lodge to bind 
 under the order of March last. 
 
 Wm. C. Smith et al. heirs and distributees 
 of Savage Smith, deceased, appealed from so 
 much of the above decree as decided that in- 
 terest is not to be charged on the amounts re- 
 ceived by Brown and wife, and debts due by
 
 BROWN V. SMITH 
 
 *530 
 
 tliom, i!i taking the accounts against tlie 
 ussiKiiee, to ascertain what said comphiinaiits 
 are entitled to receive from the assijiued es- 
 tate in liis liands, as erroneons; and snlmiit- 
 ed that they are well entitled to have the 
 interest so charged, either from the time of 
 the receipts, respectively, or from the division 
 iiiKler the decree in IfSlir), on the halance 
 wiiich was then dne to them. 
 
 Hen.iamin F. Hunt also ai)pealed from the 
 above decree, on the grounds. 
 
 First. The decree of the Court of Ai)peals 
 establishes, that the defendant, Hunt, as as- 
 signee of Brown, is liable for one-lmlf the 
 joint note of C. T. Brown and Elizabeth 
 .Smith, discounted at the United States Hank, 
 December 16. 1S26, for $lL>,r>()0. wherewith 
 the debt to Bird, Savage & Bird was dis- 
 charged, to the amount of $12,144.50, and that 
 the representatives of Savage Smith are lia- 
 ble for the other half. And this being a final 
 adjudication of a principle by the highest 
 Court, is conclusive upon the parties, and no 
 attempt or pretence is set up to re-open the 
 same. But the circuit decree adjutlicated a 
 matter of account, (and is warranted some- 
 what, it is conceded, by the words of the ap- 
 peal decree,) and thereupon awards and ad- 
 judges that the distributees of Savage Smith 
 have paid the whole amount of said sum of 
 !<llM44.oO, and are entitled to be repaid one- 
 half thereof, with interest, at the rate of 
 seven per cent., from the IGth December, 1S26, 
 and directs the payment to be levied and en- 
 forced out of the property of Col. Hunt, by ex- 
 ecution of tiei'i facias — and there is error in 
 this as follows. 
 
 *529 
 
 *1. Because there is no evidence whatever 
 to show, or raise the presumption, that the 
 heirs of .Savage Smith ever did pay said joint 
 note, more than the following sums in part 
 payment thereof, to wit: — March 15, l.s:>4, 
 5H820(J. June 5. 1S:54, .$50:{;J. Bill of costs to 
 Mr. Orimke, $88.91 cents. In all, $8,327.91; 
 which sum, at that date, tlie interest being 
 correctly calculated at six per cent, is less 
 than one-half of said note, and, therefore, 
 less than the share to be paid by the estate 
 of Savage Smith; and this averment the ap- 
 pellant is ready to prove and maintain, and it 
 will appear manifest upon inspection of the 
 Master's report, and the evidence therewith 
 referred to by th(> appeal decree, and to all 
 the other evidence in the cause and before 
 the Court. 
 
 2. Because there is manifest error in charg- 
 ing tlie appellant with interest, at the rate 
 of seven per cent., from December lOth is-_'(i, 
 to .Tune. 1834, the heirs of Savage Smith 
 never having made any payment till the last 
 date, and prior thereto, interest was charged 
 at six per cent. 
 
 .'{. Because the execution allowed to be en- 
 forced by the circuit Court, is a general lien, 
 and against all the property of Col. Hunt, 
 
 1 whereas, the appeal decree establishes the 
 I claim only against the specific property as- 
 signed by Brown and wife to Hunt, which 
 was a part of the joint estate of (ieorge and 
 Savage Snuth. 
 
 Second. Because the decree is al.so errone- 
 ous, in charging against the share of George 
 Smith, the claims mentioned in schedule A. 
 
 Third. Because there can be no decree to 
 refund the aniovnits paid by the administra- 
 tor of George and Savage Smith, to Charles 
 T. Brown the distributee, inasnuich as there 
 was no proof of an original deficiency of as- 
 .sets, and until such proof, a legatee or dis- 
 tributee cannot be called upon to refund, and 
 a large portion of the same may, from the 
 character of the receipts and proof, be prop- 
 erly referred to and chargeable in the large 
 and continuous private account between 
 Brown and Wm. S. Smith. 
 *530 
 
 ♦Fourth. Because the decree is erroneous, 
 in charging against Col. Hunt the amount 
 due by Charles T. Brown, for negro hire, in- 
 asmuch as this claim must be regarded, either 
 as a voluntary payment to Brown, and, 
 therefore, subject to the same rule as is set 
 forth in the last ground, or it must be re- 
 garded as included in and l)eIonging to the 
 private account between Brown and William 
 S. Smith, and also subject to the objection 
 made on the score of defective proof, and 
 the presumption of i)ayment from the lapse of 
 time betw^een the date of tlie hiring and the 
 first evid^'nce of claim. 
 
 Fifth. Because the claim for Clegg's Point 
 should have been dismissed, inasmuch as it 
 is for a subject matter entirely distinct from 
 those for which the defendant is impleaded, 
 and not properly embraced in the pleadings; 
 and, furthermore, because it is neither suf- 
 ficiently proved, nor taken out of the pre- 
 sumptions arising from delay of claim. 
 
 [For subsequent opinion, see 11 Rich. Eq. 
 2(iU.] 
 
 Mr. Mitchell, Mr. Yeadon, for W. C. Smith, 
 and otners. 
 
 Mr. Memmiuger, :\Ir. Hunt, for Col. Hunt. 
 
 DAKGAX, Ch. delivered the opinion of the 
 Court. 
 
 It falls to my lot, for the third time, to an- 
 nounce the judgment of this Court upon 
 ipiestions growing out of the cases above 
 stated. My present duties are greatly abridg- 
 ed by the labors and adjudications of this 
 Court and of the circuit Court, at preceding 
 .stages of the cause. 
 
 It is supererogative to travel over ground 
 that has been already exten.sively and thor- 
 oughly explored, or to remark upon questions 
 that have been already discussed and ad- 
 judged by the Court. 
 
 In reference to the claim of Bird, Savage 
 & Bird, which is a branch of the cause which 
 seems to liave called forth the most serious 
 
 217
 
 *530 
 
 3 RiriTARDSOX'S EQUITY REPORTS 
 
 efforts at the recent hearing on the part of 
 the appehant, (Col. Hunt), it may not be in- 
 appropriate, although it may be unnecessary, 
 to offer some connuents. Alluding to this 
 branch of the controversy, and the judgment 
 of the Court of Appeals thereon, the Chan- 
 cellor who presided at the last circuit trial, 
 
 *531 
 *uses the following language. "It is not too 
 much to say, that no part of the case was 
 more thoroughly investigated, so maturely 
 considered, and none covdd be, as I thought, 
 more conclusively and distinctly settled." 
 This is strong language ; and to it I may add, 
 that there was uo part of the case, in refer- 
 ence to which the Court of appeals arrived 
 at a conclusion more unanimously adopted, or 
 more entirely satisfactory to itself. 
 
 I will not now pause to con^iider the ques- 
 tion, whether the claim of Bird. Savage & 
 Bird was a debt due by the partnership estate 
 of George and Savage Smith. That is made 
 sufficiently manifest by the decree of 1825, 
 in which provision was made for its pay- 
 ment out of the effects of the partnership 
 estate ; by the letter of Col. Hunt, of the ISth 
 July, 1826, in which he explicitly admits the 
 liability of the partnership estate for the 
 debts, — and by other circumstances, not nec- 
 essary to be particularly noticed. 
 
 That the balance of this debt, charged in 
 schedule E, of the Master's report, as hav- 
 ing been paid by the heirs of Savage Smith, 
 was so paid by them, or from funds belonging 
 to them, is equally clear. The fact is sus- 
 ceptible of demonstration beyond any ration- 
 al doubt. The circumstances on which this 
 conclusion rests, are manifold, all tending to 
 the same result. 
 
 The debt has been paid ; and must be sup- 
 posed to have been paid by some of the par- 
 ties interested in its extinction. Col. Hunt 
 does not profess to have paid it. Nor is it 
 pretended that Charles T. Brown paid it, 
 except in the way of hypothetical suggestion. 
 It is contended that Brown may have paid 
 it, but there is not a tittle of proof that lie 
 did pay it, or any part of it. In fact, it does 
 not appear that Brown had any direct inter- 
 est in the payment of this debt after his as- 
 signment of his share of the estate to Col. 
 Hunt, by his indenture of the 11th February, 
 1825. Brown and wife, by this instrument, 
 assigned their moiety of the estate to Col. 
 Hunt, "subject to the debts of the .said firm, 
 and the account between the parties interest- 
 ed in the same." Again ; it was recited that 
 Col. Hunt was to have all the rights, priv- 
 ileges and claims of the said Brown and 
 
 *532 
 wife in *the partnei'ship estate, and to be 
 "subject to all the duties, oldigations and re- 
 sponsibilities of the said Charles T. Brown 
 and Sarah E. his wife, or either of them, in 
 the final settlement and adjustment and divi- 
 sion of the said copartnership estate, real 
 and personal," And after this and other re- 
 
 218 
 
 citals, Charles T. Brown and wife proceed 
 by the indenture to assign to Col. Hunt, all 
 their lands, negroes, &c. in the partnership 
 estate, (which had, about the date of the in- 
 denture, been assigned to them by proceed- 
 ings in partition); also, all the interest of 
 Brown and wife, in a claim set up by Josiah 
 Smith against the partnership estate, and 
 which had previously been assigned to Brown 
 and wife; also, all the share of Brown and 
 wife in the surplus of the undivided estate, 
 if any there should be, after the payment of 
 debts ; "subject, nevertheless," as the deed 
 goes on to declare, "to the payment and dis- 
 charge of the judgments, executions, debts, 
 claims and demands, now due, owing and pay- 
 able by the aforesaid late firm of George and 
 Savage Smith ; and to the accounts between 
 the parties interested in the said copartner- 
 ship estates." The claim of Bird. Savage & 
 Bird was then an acknowledged liability of 
 the copartnership estate, for the payment 
 of which, then in judgment, a provision had 
 been made by a previous decree of the Court. 
 Can any one doubt that, by the obligations 
 arising out of the deed of assignment of the 
 11th February, 1825, and as between Hunt 
 and Brown, it was the duty of the former, 
 and not of the latter, to pay the one-half of 
 this debtV Brown had no interest in the ex- 
 tinguishment of the debt ; for if the execu- 
 tion in favor of Bird, Savage & Bird had been 
 pressed, and a portion of the estate assigned 
 by Brown and wife had been sold to satisfy 
 it, I cannot perceive that, under the condi- 
 tions of the assignment. Brown would have 
 been in any way responsible to Hunt on that 
 account. Af»d this seems to have been Col. 
 Hunt's own views when he wrote his letter to 
 Peter Cuttino of the date ISth July, 1826. 
 Peter Cuttino represented the heirs of Sav- 
 age Smith, and the letter was written with 
 the view of urging upon him the necessity of 
 immediately raising a sufficient sum of mon- 
 
 *533 
 ey to pay off' the balance of the *debt due to 
 Bird, Savage & Bird. Brown, it must be re- 
 membered, was then in affluent circumstances 
 and good credit. Yet Col. Hunt did not then 
 say, that Brown was under any obligation 
 to step forward for his relief in the payment 
 of any part of the debt. But he proposes to 
 unite with Mrs. Smith, the widow of Savage 
 Smith, in borrowing the necessary amount ; 
 or, says he, "I will borrow one-half, if she 
 will the other." He again says: — "I think it 
 very likely, that the money can be procured, 
 and without some such measure, the most 
 disastrous consequences will follow. The 
 amount of each share would be five or six 
 thousand dollars. This would close the es- 
 tate, as to its debts: — all then would be, to 
 settle the accounts and adjust a final de- 
 cree. Should we not be able to get the 
 amount through the Bank, we may, perhaps, 
 by gi\"ing a premium, get it from some indi- 
 vidual. I do not like to do so, but it would
 
 BROWN V. SMITH 
 
 1»e nuuh better tliiin to have a debt of $70,- 
 000 hautriiig over us." It .seems to lue, that 
 this would have been a very proper occasiou 
 to have hiid chiiui to Brown's assistance, if 
 Brown liad l)een interested in tlie extinction 
 of the debt. But no allusitm of that kind is 
 made. 
 
 The proposal of Col. Hunt, in the letter 
 above cited, seems not to have been adopt- 
 ed. And by the assistance of Mr. King, a 
 negotiation was effected with the I'nited 
 States Bank for the requisite amount, ($12,- 
 500) on the joint and several note of Mrs. 
 Smith, the administratri.x; of Savage Smith, 
 and Charles T. Brown, with a deposit, (as 
 collateral .security) of specialties to the 
 amount of !?19,(i(;7.0S. The money thus rai.s- 
 ed, beyond all controversy, was applied to 
 the satisfaction of the balance then due on 
 the debt of Bird, Savage & Bird. Which 
 of the parties paid this debt thus contract- 
 ed with the United States Bank? Two wit- 
 nesses were examined as to this point, 
 namely: — Mr. M. King and Mr. Henry Cut- 
 tino. There is some confusion in the notes 
 of this testimony. Mr. King is represented 
 as having said, in reference to certain notes 
 and securities there mentioned, that "he 
 l)aid the balance due on the notes, from the 
 funds of Savage Smith, and then such of 
 
 *534 
 the collateral securities, *which had been 
 assigned to the Bank, as were uncollected, 
 together with the letter now produced in 
 evidence, were returned to the witness, and 
 witness delivered them up to the estate of 
 Savage Smith." The collateral securities 
 lodged with the Bank to assure the pay- 
 ment of the note, were the assets of the es- 
 tate of Savage Smith. Upwards of two 
 thousand dollars were collected by the Bank 
 on these securities, and applied as payments 
 on the note of Mrs. Smith and Charles T. 
 Brown. Again, this witness saj's, — "the bal- 
 ance which witness paid the Bank, was for 
 the note, or renewals, on which the loan 
 for .$12,500 had been made." 
 
 The debt had been reduced by payments 
 to $7,700; and Mrs. Smith having died, the 
 note in Bank was renewed by a note of 
 Charles T. Brown and George S. Smith, pay- 
 able to, and endorsed by, Peter Cuttino, 
 and this renewal note was confessedly sat- 
 isfied by funds of the estate of Savage 
 Smith. — When Mr. King speaks of having 
 paid the balance of the note, or renewals, 
 he was understood by the Master, before 
 whom his testimony was taken, to have 
 meant the balance of the note after the ap- 
 plication of the money collected by the 
 Bank upon the collateral securities. Mr. 
 King further says, that he was the friend 
 and counsel and confidential adviser of the 
 heirs of Savage Smith, and was intimately 
 acijuainted with the transaction. And that, 
 although he did not attend to putting the 
 renewals in Bank, he was constantly con- 
 
 sulted about them as they progressed. He 
 was also the professional advi.ser of Charles 
 T. Brown, after the .sale to Col. Hunt, and 
 was repeatedly consulted by him. And it 
 is worthy of remark, that in the evidence of 
 this witness, so cognizant, as he was. of 
 the loan from the Bank, from its beginning 
 to its extinction, there is not the sliglitest 
 intimation that Charles T. Brown had made 
 any payments. If Brown had made pay- 
 ments, is it not probable that he would 
 have sought reclamation from Col. Hunt? 
 Henry Cuttinu testified, in so many words, 
 that the debt contracted with the Bank was 
 paid by the heirs of Savage Smith. In his 
 cross-examination, he say.s, "from his per- 
 
 *535 
 
 sonal knowledge, he does not know *that 
 Charles T. Brown and some of the family of 
 Savage Smith did, or did not, raise money, 
 but, from papers he lias seen, he has reason 
 to believe that they did: the jiapers he has 
 reference to. are an account current of Mr. 
 Mitchell King and a note fm* money tor- 
 rowed from the Bank in (Georgetown, by 
 Charles T. Brown and Klixabeth Smith: the 
 money so borrowed, was applied to the pay- 
 ment of the debt of Bird. Savage & Bird," 
 &c. Whether this witness intended, in his 
 cross-examiiuition, to qualify his state- 
 ment to the effect, that he had derived the 
 whole of his information on the subject 
 from the papers that he had seen, does not 
 very clearly appear. He may not have per- 
 sonally known ot the negotiation with the 
 Bank, and the application of the money to 
 the debt of Bird, Savage & Bird, and yet, 
 being the brother of the administrator of 
 the widow of Savage Smith, he may have 
 |)ersonally known that the debi; due to the 
 Hank, (which was but a substitute for the 
 ()alance of that which had been due to Bird, 
 Sa\age & Bird), had been paid by the as- 
 sets of the estate of Savage Smith. 
 
 The Master has found, and so states dis- 
 tinctly in his report, that the whole amount 
 of the debt contracted with the Bank has 
 been paid by the heirs of Savage Smith. 
 This report bears date Sth January, 1846. 
 The decision of the Master on this point, 
 was then pronuilged, together with the evi- 
 dence on which it was ba.sed. He refers 
 expressly to Mr. King's evidence as support- 
 ing his judgment. If the .Master had so 
 widely misinterpreted Mr. King's evidence, 
 in the interval which has elapsed from Jan- 
 uary, lcS46, to the trial of the cause, why 
 were not steps taken for the re-examination 
 of Mr. King'^ Col. Hunt knowing that the 
 Master had reported the debt with the Bank 
 to have been paid by the heirs of Savage 
 Smith, in his exceptions to that report did 
 not controvert the fact. He does not deny, 
 (in his exceptions.) that the heirs of Savage 
 Smith did jiay the whole of the Bank debt, 
 as found by the Master, lie does not as- 
 
 21U
 
 »535 
 
 3 RiniARDSON'S EQUITY REPORTS 
 
 sert that Charles T. P.rown paid any part 
 thereof. 
 
 For the foregoing reasons, this Court, at 
 the former heai'ing, (Cliarleston, January 
 Term, 1850,) was satisfied that the report 
 
 *536 
 *of the Master was right in this particular. 
 And the appeal decree confirmed the report 
 (as to this matter) in language unmistak- 
 ably clear and distinct. If the question 
 were now res Integra, this Court would 
 come to the same conclusion. And indeed, 
 it is difficult to perceive how such a conclu- 
 sion could be avoided upon the evidence be- 
 fore us. 
 
 I have, in deference to the zealous and 
 apparently sincere argument offered in be- 
 half of the appellant, travelled over the 
 grounds which have led the Court to its 
 judgment in reference to this branch of the 
 case. And it is satisfactory, upon a re- 
 examination of the facts, to perceive that 
 there has been no error committed, as was 
 broadly asserted at the bar. But the ques- 
 tion is not open. It is conclusively and 
 finally adjudged by the appeal decree. And 
 though an error of judgment, as to the 
 facts, had been made manifest, the Court 
 could not have corrected it. As to facts, 
 a bill of review, or a petition for a rehear- 
 ing, would not lie, except upon evidence, 
 not coimulative, discovered subsequent to 
 the trial. 
 
 In reference to the other questions, rais- 
 ed and discussed on behalf of Col. Hunt, it 
 is deemed unnecessary to add anything to 
 that which has been stated in the Circuit 
 Decree. This Court concurs with the Chan- 
 cellor who heard the cause, except as to 
 one matter which will be hereinafter con- 
 sidered. 
 
 The question, as to interest, made in the 
 appeal which has been taken on behalf of 
 the heirs of Savage Smith, is interesting 
 from its not having been heretofore much 
 discussed. Upon demands bearing interest 
 at law, this Court, I conceive, would be 
 bound to allow interest. But, as to non- 
 bearing interest demands, the claim of in- 
 terest will be allowed or disallowed in this 
 Court, according to the equity of the case. 
 It Is a matter of discretion. It is rare- 
 ly disallowed in the adjustment of accounts, 
 for it is rarely otherwise than an equitable 
 claim. Where parties from laches, or from 
 other similar causes, fail for a long time 
 to prosecute their claims to a final settle- 
 ment, and suffer them to lie still until the 
 interest account has swelled to an enormous 
 magnitude, (as in this case,) the claim for 
 
 *537 
 interest does not pre*sent itself, in this 
 Court, in a favorable light. It would be a 
 premium for delay. This Court concurs 
 with the Chancellor on this point also. 
 
 This disposes of all the questions raised 
 in the appeals which have been taken from 
 220 
 
 the circuit decree of June Term, IS.jO. — But 
 there are other matters yet to be considered. 
 
 On the seventh of March, 1850, the Solici- 
 tor of the heirs of Savage Smith sued out be- 
 fore the Register in Equity a fieri facias on 
 the decree of the Court of Appeals, which 
 had been rendered in the cause at the pre- 
 ceding term of the Court. A motion was 
 submitted by Mr. Campbell, acting for Col. 
 Hunt, that the execution be recalled. This 
 motion was refused. Mr. Campbell, acting 
 on the behalf of Col. Hunt, submitted a mo- 
 tion, that proceedings, under the execution, 
 be suspended until the further order of the 
 Court ; and that the complainants have leave 
 to lodge the execution to bind. 
 
 The issuing of a fl. fa. could only be upon 
 the ground that the decree had an operation 
 in personam against Col. Hunt and upon his 
 estate generally. The appeal decree of 1850 
 is a decree in rem. It operates only on the 
 property of the partnership estate of George 
 and Savage Smith, which was allotted in 
 the division to Charles T. Brown and wife, 
 and which has come into the possession of 
 Col. Hunt by assignment from them. The 
 appeal decree of 1S50 creates no personal lia- 
 bility against Col. Hunt. It is expressly so 
 declared. And so, the circuit decree of June 
 Term, 1850, creates no personal liability 
 against Col. Hunt, except as to the amount 
 decreed against him on account of the pur- 
 chase of Clegg's Point. A writ of fieri facias, 
 to operate on the property of Col. Hunt gen- 
 erally, would be improper. The fi. fa., which 
 has been issued, must be recalled, and so 
 much of the circuit decree of June Term, 
 1850, as allows the complainants to proceed 
 on said fi. fa., (which had been suspended 
 by a previous order of the Court,) must be 
 reversed. — The complainants will, of course, 
 have a right to proceed to enforce the pay- 
 ment of the debt decreed to be due on ac-- 
 
 *538 
 count of *the purchase of Clegg's Point, by 
 any process which the practice of this Court 
 allows. 
 
 It is ordered and decreed, that the fieri 
 facias issued in this cause on the 7th day 
 of March, 1850, be recalled and set aside, and 
 so much of the circuit decree of June Term, 
 1850, as allows the complainants to proceed 
 under the said fieri facias, be reversed. In 
 all other respects, the decree of this Court is, 
 that the said circuit decree be affirmed, and 
 the appeals therefrom be dismissed. 
 
 At the February Term of the Circuit 
 Court, the Solicitors of the heirs of Savage 
 Smith moved the Court to grant an order 
 nisi for the sale of so much of the estate of 
 George and Savage Smith as had been allot- 
 ted in partition to Charles T. Brown and 
 wife, and by them assigned to Col. Hunt, as 
 should be necessary to satisfy the d<?bt to 
 which the said property was declared to be 
 liable by the appeal decree of January Term, 
 1850. This order was refused by the presid-
 
 r:i()\VN V. .SMITH 
 
 *640 
 
 in? ClmiKollor, on the srouml that it would 
 be improper to grant it initil the tinal ac- 
 counting was had upon tlie matters of con- 
 troversy reserved hy the appeal decree. 
 From this decision of the Circuit Court an 
 appeal has aLso been taken. 
 
 It is not perceived, that there was any 
 error in the decision under the circumstances 
 that then existed. And the appeal is dismis.s- 
 ed. The matters of controversy reserved by 
 tlie api)eal decree have since all been adjudg- 
 ed. And it is now proper that the complain- 
 ants should have an order for the enforce- 
 ment of tlie lien which has been declared by 
 the decree of the Court. 
 
 It is therefore ordered and decreed, that 
 unless the said lienjamin F. Hunt shall on 
 or before the first day of November next 
 pay to the heirs of Savage Snuth. or their 
 legal representatives, the sum adjudged and 
 decreed against him l)y the api)eal decree 
 of February Term, Is.'tO. being the sum of 
 six tiidusand and seventy-two dollars and 
 twenty-five cents, with interest thereon from 
 the loth day of December. 1S20, to the time 
 of payment, James \V. (iray, one of the Ma.s- 
 ters of the Court of Eiiuity in Charleston, 
 shall, after two weeks's notice in one of the 
 
 *539 • 
 news*papers publislied in Charleston, and 
 one of the newspaiiers published in George- 
 town, proceed to sell for cash, before the 
 Court House door in (ieorgetown, first the 
 negroes, and then, if necessary, the lands, 
 which, in the partition of the partnership 
 estate of George and Savage Smith, were 
 assigned to Chas. T. Urown and wife, and 
 by them assigned to Benj. F. Hunt, for the 
 purpose of satisfying the aforesaid sum of 
 $G,07l.'.l.'.5, and interest thereon, together with 
 the costs and commissions on the sale. — And 
 it is also ordered that the said Master do 
 pay over the said monies, so collected and 
 raised, to the parties entitled to receive the 
 same. 
 
 It is also ordered that, in the event the 
 said B. F. Hunt shall fail to pay the .said 
 sum on or before the first day of November 
 next, as herein before ordered and directed, 
 the said B. F. Hunt do deliver into the hands 
 of the .said James W. Gray the said proper- 
 ty, or so much as may be necessary to raise 
 the said sum of money, whenever, after the 
 first day of November next, he shall be re- 
 quired to do so by the said James W. Gray. 
 
 DUNKIN and WAUDLAW, CC. concurred. 
 
 JOHNSTON. Ch. I am of opinion that the 
 questions in relation to the demand of Bird. 
 Savage & Bird, are concluded by the api)eal 
 decree of IS.'K); (and I am. now, pretty well 
 satisfied, upon pretty clear evidence actual 
 and presumptive). 
 
 I agree with the Court upon the subject of 
 interest. 
 
 I am not dissatisfied with its judgment in 
 relation to Clegg's Point. 
 
 In relation to the advances to Brown and 
 the negro hire, though these were ruled by 
 the Court of Appeals to fall within the pur- 
 view of the decree of 1825,. yet I think the 
 evidence on the subject is too obscure, and 
 the transactions too antiquated, to allow of 
 a sjitisfnetory adjudication: and that after 
 the administrators have been discharged, the 
 heirs of Savage Smith, who had no direct 
 right of reclamation, should not be allowed 
 to reclaim through the administrators, — at 
 least without clear jtroof that the adminis- 
 
 *540 
 
 trators could reclaim. The only ground *is 
 the subse<iuent depreciation of assets, in the 
 hands of the adnnnistrators, or of the Court: 
 and neither adnnnistrators, or other heirs, 
 have a right of reclamation from such a cii'- 
 cumstance. 
 
 After the hearing in the.se causes at this 
 Term, and before the above decision was 
 pronounced, Benjamin F. Hunt presented a 
 petition for a re-hearing, upon grounds which 
 surticiently appear in the following opinion 
 of the Court, delivered by 
 
 DARGAN, Ch. This is a petition for a re- 
 hearing. The first ground assumes that the 
 petitioner, B. F. Hunt, has by the decree of 
 this Court, been held jointly and personally 
 liable for the debt of Bird, Savage & Bird. 
 This is an erroneous inference. The decree 
 of the Api>eal Court of January Term, 1850, 
 declares no personal liability against the pe- 
 titioner, but establishes a lien upon the 
 property, which, in the partition of the part- 
 nership of George and Savage Smith, had 
 been allotted to Charles T. Brown and wife, 
 and by them assigned to the i)etitioner. The 
 decree adjudges that the balance of this 
 debt had been paid by the heirs of Savage 
 Smith, as reported by the Master; and gives 
 a lien for one-half of that amount on the 
 property in the possession of the petitioner, 
 derived from the partnership estate of 
 George and Savage Smith. 
 
 The petitioner also states, as a ground for 
 a re-hearing, that the decree of June Term, 
 1850, allows the complainants, the heirs of 
 Savage Smith, to proceed by a writ of fieri 
 facias for the enforcement of their claim. 
 This has been made a ground of appeal from 
 that decree. It has been considered by the 
 Court, and so much of the said decree, as 
 is complained of in this particular, has been 
 leversed by the decree of this Court, ren- 
 dered during this Term. 
 
 In reference to the error alleged in the pe- 
 tition, as apparent on the face of the decree 
 of the Court of Api)eal.s, in resiiect to the 
 amount paid by the heirs of Savage Smith, 
 on the debt of Bird, Savage & Bird, it would, 
 perhaps, be sufficient to refer to what has 
 been said in the appeal decree which has 
 been rendered during the present Term. 
 
 221
 
 *541 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 *541 
 
 *A bill of review and a motion for a re- 
 hearing are entertained on similar grounds. 
 There are but two grounds on which either 
 of those proceedings will lie. First ; they 
 will be entertained on account of error of 
 law apparent upon the face of the decree: 
 and any part of the record may be resorted to 
 for the purpose of making such error of law 
 in the decree manifest. This petition sets 
 forth no error of law in the decree, and this 
 Court perceives none. 
 
 The other ground upon which a bill of re- 
 view, or a motion for a re-hearing, will be 
 entertained, is newly discovered testimony ; 
 that is to say, testimony discovered since the 
 trial. This testimony must be important and 
 must materially vary the case made; it 
 must not be cumulative as to the evidence 
 which was before the Court upon the trial: 
 and it must be such as the party, petitioning 
 for a re-hearing, was not aware of before 
 the trial, and could not by proper diligence 
 and enquiry have discovered. To which it 
 may be added, that many of the authorities 
 declare that it must be written testimony. 
 As to the grounds upon which a re-hearing 
 will be ordered, see Hinson v. rickett, 2 Ilill 
 Eq. 351. 
 
 The ground set down in this petition for a 
 
 222 
 
 re-hearing, is nothing more than alleged er- 
 ror of judgment on the part of the Court, in 
 deciding upon an issue of fact. This is a 
 very good ground of appeal, if well founded, 
 where an appeal is taken from a lower to a 
 higher tribunal, but I am not aware of any 
 precedent for such cause being considered a 
 ground for a re-hearing after a cause has 
 been finally adjudicated. And more particu- 
 larly is this assertion true, where the Court 
 has had evidence before it, though that evi- 
 dence might be doubtful. For it was held in 
 Johnson v. LeA^is, (1 Rich. Eq. 390.) that a 
 petition will not be allowed for supposed er- 
 ror in the conclusion of the Court drawn 
 from doubtful or equivocal evidence. The 
 rule was, in this case, unrelentingly applied, 
 where the cause was decided by two Chan- 
 cellors in opposition to the opinion of one 
 of the Court and of the absent Chancellor 
 who presided on the circuit. 
 
 *542 
 
 *But, as has been before intimated, the 
 Court perceives no error. It is satisfied with 
 its conclusions as to the matter complained 
 of. The petition is dismissed. 
 
 JOHNSTON, DUNKIN and WARDLAW, 
 CC. concurred.
 
 IN THE COURT OF ERRORS 
 
 COLUMBIA— DECHMDER, 1850. 
 
 All tiik Judcks and ChaxcivLi.ors Preskn'T. 
 
 3 Rich. Eq. *543 
 
 •JS. f. and J. K. M. TK.MI'LKTON v. W>L 
 
 and .TOIIN WAl-KKK. 
 
 (rohiml)ia. Doc. IS.IO.) 
 
 [Deeds (©=3105.1 
 
 A father by the same deed made separate 
 gifts of negroes to liis three (hiughters : the 
 gift to P. wa.s to her "and her future heirs of 
 her body:" and the (h'cd further provided, that, 
 "if either of the aliove named jiirls shuukl die 
 without any lawful heirs of tlii-ir body, her 
 property shall go to the surviving children :" 
 1'. died leaving issue, two children, and two 
 grand-ehildren, issue of a deceased daughter : — 
 Jlcld. (li that the issue of I*, took as purchas- 
 ers, and (2) that they took per stirpes, — not 
 per capita. 
 
 [Ed. Note.— Cited in Xix v. Bay. r» Rich. 4li(!; 
 Collier V. Collier, .". Kich. E<i. 557 ; Perdriau 
 V. Wells, 5 Kich. E«i. 28; Evans v. Uodbold, 
 (i Rich. Eq. .".5: Rarksdale v. Macbeth, 7 Rich. 
 Eq. i:]3, 134: Rembert v. Vetoe, 89 S. C. 211, 
 21.3. 71 S. E. J)50. 
 
 For other cases, see Deeds, Cent. Dig. §§ 278- 
 2!n. 372-374, 420; Dec. Dig. ©=3105.] 
 
 IWiUs <s=:352.5.1 
 
 A\'lienevcr, by the terms of description, in a 
 devise or grant, resort must be had to the stat- 
 'ite of distributions for the purpose of ascer- 
 taining the objects of the gift, resort must also 
 be had to the statute to ascertain the propor- 
 tions in wiiich the donees shall take, unless the 
 instrument making the gift indiiates the inten- 
 tion of the donor that a different rule of dis- 
 tribution shall be pursued, (a) 
 
 [Ed. Note.— Cited in Evans v. Codbold. G 
 Rich. Eq. 31); Allen v. Allen. 13 S. C. 531, 
 .'{(j Am. Rej). 71(j ; Kerngood v. Davis, 21 S. 
 C. 207; Dukes v. Faulk, 37 S. C. 2(54, 205, 
 267, 16 S. E. 122. 34 Am. St. Rep. 745; 
 Kitchen v. Southern Rv., (i8 S. C, 561. 48 S. 
 E. 4; Rembert v. Vetoe. S!) S. C. 210, 71 S. 
 E. !»5<.l: (Jardner v. llorton, 80 S. E. 6.38. 
 
 For other cases, see Wills, Cent. Dig. § 1133; 
 Dec. Dig. <©=.525.] 
 
 Rofore Dargan. Cli. at Barnwell. 
 
 Strplien rinlllps. on the 17th December, 
 
 (a) Freeman v. Knight, (2 Iredell's Eq. 72.) 
 If a bequest of personal jiroperty be to heirs 
 simi>ly. they take in the proportions prescribed 
 by the statute of distribution*: but as the tes- 
 tator directs the property "to be e<iually divid- 
 ed" among them, the division must be per 
 capita, the children of the deceased daughter 
 taking each an e(|ual share with the children 
 of the testator. R. 
 
 1815, e.vecuted a deed in the followins words, 
 to wit. 
 
 "Know all men by these presents, that I, 
 Stephen Phillips, of the said State and dis- 
 trict, do. of my o\vn free will, and for love 
 to my children, as follows, viz.: my daugh- 
 ter, Polly Phillips, I do give unto her. and 
 her future heirs of her body, two negro girls, 
 Darkes and Sealey. 1 do give unto my 
 
 *544 
 daughter, Flower *I'hillips. one negro boy. 
 ntimed Peter. I do give unto my daughter, 
 Elizabeth Nix, one negro boy. named Jefifree. 
 Also I do give unto my three alxive mention- 
 ed daughters, one negro woman. Abiirail. and 
 her future increase; which said negro woman 
 and increase, if any, after the death of my 
 wife and myself, is to be equally divided, 
 among my above mentioned daughters. It 
 is to l)e under.stood. that the above mention- 
 ed property is to remain in my ijossession, or 
 my wife's, till after our deaths, then to go 
 as above mentioned — the above propm't.v is 
 to my said daughters and the heirs of their 
 body. No\v, if either of the above named 
 girls .should die without any lawful heirs of 
 their bod.v. her propertj- shall go to the sur- 
 viving children, and so on." 
 
 Polly Phillips intermarried with Alexander 
 Templeton, and upon the death of Stei»hen 
 I'hillips and his wife, the property given by 
 the deed to Polly Phillips, passed into the 
 possession of her husband. 
 
 In 1847, Polly departed this life, leaving 
 surviving her, her said husband, and two 
 children, (who are the complainants,) and two 
 griuul-children, the issue of a deceased 
 daughter, (who are the defendants). 
 
 On the 2d of August. 1840. the negroes 
 given by the deed to Polly, had increased to 
 twenty in number, and on that day. .Vlexan- 
 der Templeton. supiiosing the limitation in 
 the dee<l to be too remote, and that his mari- 
 tal rights had attached, executed a deed, 
 whereby he relea.sed all his interest in the 
 negroes, to the complainants and the defend- 
 ants, to be divided amongst them in the fol- 
 lowing proportions, that is to say, one-third 
 
 ©==>Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and lnde.xes 
 
 223
 
 *544 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 to tlie comiilaiuant, Stephen P. Templeton. 
 one-third to the comphiinant, John E. M. 
 Templeton. and the reniauiing third, to be 
 equally divided between the defendants, Wil- 
 liam and John Walker, who were Infants. 
 
 The bill was for partition accordinj;: to the 
 terms of the deed of Alexander Templeton. 
 
 The an!<wer stated the infancy of the de- 
 fendants, and submitted that Alexander Tem- 
 
 *545 
 pleton had no interest in the negroes *after 
 his wife's death, and that the title to the 
 said negroes should be determined according 
 to the provisions of the deed of Stephen Phil- 
 lips, under which, (as they were advised) the 
 heirs of the body of Polly Phillips took per 
 capita and not per stirpes. 
 
 Dargan, Ch. After holding that, under the 
 deed of Stephen Phillips, the limitation over 
 'to the surviving children" was good, and that 
 the 'heirs of the body' of Mrs. Templeton took 
 as purchasers, after a life estate in their 
 mother: added: "If this be so, then the deed 
 of Alexander Templeton can have no elfect in 
 varying their rights, and the next question 
 occurs, do the issue of Polly Templeton take 
 per stirpes or per capita? On the authority 
 of Campbell v. Wiggins, Lemaks v. Glover, 
 and Keitt v. Ilouser, I hold that the children 
 and grand-children take per capita, and in 
 equal shares. A case involving this point, 
 (Collier v. Collier) has recently been referred 
 by the Court of Equity to the Court of Er- 
 rors. Of course, the ultimate decision in the 
 case before me, mu.st depend upon the deci- 
 sion in the Court of errors. For the pres- 
 ent, I decide in conformity with my own 
 views." 
 
 "It is ordered and decreed, that the com- 
 plainants and defendants are entitled to the 
 estate mentioned in the pleadings, to be di- 
 vided among them per capita. It is also or- 
 dered, that the parties have leave to apply at 
 the foot of this decree for such orders as may 
 be necessary to carry it into effect." 
 
 The complainants appealed, on the grounds, 
 
 1. That his Honor should have decreed 
 that the limitation over, in the deed of Steph- 
 en Phillips, is too remote, and that, there- 
 fore, the defendants take the proportions giv- 
 en them by the deed of A. Templeton. 
 
 2. That even if the said limitation over be 
 good, nevertheless, his Honor should have 
 decreed, that the estate mentioned in the 
 pleadings, be divided per stirpes and not per 
 capita. 
 
 At :May Term, 1S50, the appeal was heard 
 
 *546 
 
 at Columbia, by *the Equity Court of Ap- 
 peals, and the following opinion thereon pro- 
 nounced. 
 
 PER criHAM.— This Court is satisfied 
 with the decree that the heirs of the daugh- 
 ters took as purchasers, which is drawn in 
 question by the first ground of appeal: and 
 224 
 
 it is ordered, that the decree on that point 
 be affirmed, and the appeal dismissed. 
 
 It is further ordered, that this cause be 
 sent to the Court of Errors (and docketed) 
 for its judgment upon the question involved 
 in the second ground of appeal ; and to be 
 heard in connexion with Collier v. Collier. 
 
 JOHNSTON, DUNKIN and DARGAN, CC. 
 concurring. 
 
 Upon the question involved in the second 
 ground of appeal, the case was now heard 
 in the Court of Errors. 
 
 J. T. Aldrich for complainants. The ques- 
 tion is, do the heirs of Mrs. Templeton take 
 per capita, or per stirpes'? What mode did 
 the grantor intend? Clearly the proportions 
 of the statute, because he describes them as 
 "heirs of the body," without repudiating the 
 proportions of the statute ; the description 
 "heirs of the body," compels a resort to the 
 statute to ascertain its meaning. This ex- 
 press adoption of the objects of the statute, 
 unaccompanied by a repudiation of its pro- 
 portions, amounts to an implied adoption of 
 its proportions. When a person uses lan- 
 guage which compels us to go to the statute 
 for its interpretation, the inference is, that 
 such person points to the statute as the ex- 
 ponent of his meaning, except in so far as he 
 expressly repudiates it. The intention of 
 the grantor was, that the heirs of Mrs. Tem- 
 pleton should take in the same way as the 
 issue of an intestate. Why should not this 
 intention prevail".' "Because," says Lord El- 
 don, in Lady Lincoln v. Pelham, (10 \ esey, 
 175,) "it is better to adhere to a settled con- 
 struction, than to come to a decision, having 
 a tendency to shake that which forms a rule 
 of construction, and which may in practice 
 have been acted upon in many cases." But 
 there is no such "settled construction" iu 
 South Carolina. The presence of this case 
 
 *547 
 in *the Court of Errors, is alone sufficient to 
 show that the question is still unsettled. The 
 true rule is, whenever the persons intended 
 to take under a grant or devise, are so de- 
 scribed as to compel a resort to the statute, 
 to a.scertain who they are. the statute must 
 also furnish the proportions in which they 
 are to take, unless the grantor or testator in- 
 troduces into the grant or devise, some ex- 
 pression or expressions expressly repudiating 
 the proportions of the statute. (2 Jarman on 
 Wills, 47.) But the operation of this rule 
 ceases, where the language employed creates 
 no necessity for resorting to the statute for 
 its interpretation. Thus where the gift is 
 to "children," "grand-cliildren," "sons," 
 "daughters," &c., there is no necessity for a 
 resort to the statute, and therefore no refer- 
 ence to the statute is to be implied from their 
 use. The legal construction of these terms 
 accords with their popular signification. But 
 when the objects are described as heirs, iieii-s
 
 TEMPLETOX v. WALKER 
 
 *549 
 
 of the body, issue, and the like, a resort to 
 tlie statute becomes ne<vssary. for these are 
 teclinical expressions, differing fmin their 
 popular sitinificatioii. The followiuK eases 
 are exani'/les of expressions repudiating the 
 proportitins of the statute. Thomas v. Hole, 
 (Cases Temp. Talbot, L'")!.) is a leading ease. 
 There the words of the will are, "to the rela- 
 tions of Elizabeth Hole, to Ih' divided e<iual- 
 ly between them." Lord Kinj; cU'termined, 
 "that as the testator had directed the £500 
 to ue divided e(iually aui(>ii.L,'st them, he could 
 not direct an uneciual tlistribution," (tovvit, 
 the distribution of the statute,) "and he ac- 
 c<>rdinj,'ly decreed them to take per capita." 
 The same n^marks are applicable to the case 
 of Leifih V. Norbury, (i:{ Ves. .'{."tn.) 
 
 No per.sons takini; as heirs of the body, 
 can take otherwise than as the statute ^ives 
 it to heirs of the body, viz: per stirpes, un- 
 less the instrument under which they take 
 points out a different mode of distribution; 
 Rowland v. Gorsuch, (2 Cox. 187.) 
 
 Bellinger & Hutson, contra. 
 
 WARDLAW, Ch., dellvcM-ed the opinion of 
 the Court. 
 
 Stephen Phillips, by voluntary deed, gave 
 *548 
 to his daughter, *rolly IMiillips, afterwards 
 I'olly Temiileton, "and her future heirs of her 
 body, two negro girls, Darkes and Sealey;" 
 to his daughter Flower I'hillips a negro boy 
 named Peter; to liis daughter Elizabeth Nix 
 a negro boy named Jeffree, and to his three 
 daughters, above mentioned, a negro woman 
 named Abigail ; and, after some provisions 
 not now in question, proceeds to declare 
 "the above property is to my said daughters 
 and the heirs of their i)ody — now if either 
 of the above named girls should die without 
 any lawful heirs of their body, her property 
 shall go to the surviving children, and so 
 on." Polly Templeton, died in 1847, leaving 
 her husband Alexander Templeton, two chil- 
 dren, the plaintiffs, and two grand-children, 
 the issue of a deceased daughter, the de- 
 fendants, who would be the distributees of 
 her estate if she died intestate. The hus- 
 band, Alexander Templeton, on 2d August, 
 1840, executed a deed, whereby he released 
 all bis interest in the negroes then twenty 
 in number given by the deed of Stephen 
 Phillips to bis daughter I'olly to the plain- 
 tiffs and defendants, in the i)roportions of 
 one-third to each of the i)laintiffs, and of 
 one-third to the defendants to be tnpially 
 divided between them. The bill prays par- 
 tition of the negroes, according to the 
 scheme of this last deed. 
 
 The Court of Appeals in l^pilty has decid- 
 ed, on the construction of the deed of Ste- 
 phen I'hiliips, that the issue of Polly Tem- 
 pleton took as purchasers, after her life es- 
 tate; and has referred to this Court the 
 single question, whether the property shall 
 
 3 Rich. Eq.— 15 
 
 be divided amongst sftld issue per stripes or 
 per capita. 
 
 ft is well said by I^ord EUbm, in Lady 
 Mnciiln V. I'elham, (10 Ves. 175.) a case 
 son)ewhat analogous to the present, that "it 
 is better to adhere to a settled omstructiiMi 
 than to come to a decision having a tenden- 
 cy to shake that which forms a rule of con- 
 struction, and which may, in practice, have 
 been act»>d ui)on in many cases." Our first 
 inquiry, then, should be, whether such words 
 as are now in question have received a "set- 
 tled construction" in this State. In the case 
 of Camiibell v. Wiggins, (Rice's Eq. 10,) in 
 December, 18.38, it was decide<l by three 
 Chancellors against the opinion of the Chan- 
 
 *549 
 cellor on the circuit, that, under *a grant 
 by Act of A.ssembly to the "ln'irs at law of 
 John Taylor and lilake Wiggins," all who 
 could l)ring them.selves within the terms of 
 the description were entitled to take per 
 capita : and the general doctrine was an- 
 nounced that "when the persons intt'uded 
 to take under a grant or devise are descrilt- 
 ed as a class, without designating the pro 
 I>ortions in which they are to take, all are 
 equMlly entitled who can bring themselves 
 within the descriiition." In Ix'uiacks v. 
 Glover, (1 Rich. Eq. 141.) in .January, 1845, 
 where the limitation was to the "heirs of the 
 body" of a tenant for life, the (pie.stion as to 
 the proportions in which the designated per- 
 sons should take the estate, was referred to 
 the ten .Judges in the Court of Ernu-s, but 
 no authoritative decision was attained — five 
 Judges, including one of the majority in 
 Campbell v. Wiggins, being of opinion that 
 the distribution should be regulated by our 
 Act of 1791, and tive .lodges being of opinion 
 that the estate should be eipi.-iUy divided 
 amongst all the objects of the gift. In Keltt 
 V. Ilouser, (M. S. May. 1840.) the Equity 
 Court of Api)eals decided according to the 
 case of Campbell v. Wiggins, but some stress 
 seems to have been laid ui)on expressi(»ns in- 
 troduced into the gift indicating etpiality of 
 participation among the objects of bounty. 
 In Rochell v. Tonq)kins. (1 Strob. E(i. 114.) 
 where an estate was limited, ujion the death 
 of a wife, without appointment and without 
 living issue, to her right heirs, it was held, 
 that our statute of distributions should as- 
 certain as well the persons who were to tj\ke. 
 as the proportions in which they should 
 take; and there the husband, as statutory 
 heir, took one half of the i>state, and the 
 other distributees, who were numerous and 
 in different degrees of relationship, took 
 shares jure representatlonis ; but, in that 
 ca.se, the question seems not to have been 
 argued by counsel nor considered by the 
 Court. In Seabrook v. Seabrook (McM. Fx[. 
 201.) the question underwent some discus- 
 sion, but the case was deternnned upon prin- 
 ciples not affecting the question. After this 
 review of our cases on this subject I think 
 
 225
 
 *549 
 
 3 RICHARDSON'S EQUITY RErORTS 
 
 we may pronounce that, notwithstanding tlie 
 doctrine of Campbell v. Wiggins may have 
 been the law of this State for about six 
 years, it was greatly shaken by the case 
 
 *550 
 *of Lemacks v. (clover, and that we have not 
 any "settled construction" of such terms of 
 description as are employed in the present 
 (ase, forming a rule of property, and that 
 we are at liberty to adopt any rule on the 
 sul)ject which we may suppose will best sub- 
 serve the intention of donors and the policy 
 of the State. This conclusion is greatly con- 
 firmed by the consideration that our Act of 
 1791 is, and has long been, extensively 
 known and highly approved by the people of 
 this State; and that this legislative will, 
 as it was called in the argument, has always 
 had more influence in regulating testators 
 and other grantors in the distribution of 
 property than the rule of Campbell v. Wig- 
 gins, which was little known, except to mem- 
 bers of the profession, and could not have 
 been acted upon in practice in many cases. 
 
 Whatever may be the doctrine of the Eng- 
 lish cases on this subject, the state of our 
 law and of public policy justify the rule 
 that whenever we are compelled by the 
 terms of description, in a devise or grant, 
 to resort to our statute of distributions for 
 the purpose of ascertaining the objects of 
 the gift, we must also resort to the statute to 
 ascertain the proportions in which the do- 
 nees shall take, unless the instrument mak- 
 ing the gift indicates the intention of the 
 donor that a different rule of distribution 
 shall be pui'sued. In England, leaving out 
 of view such exceptions as grow out of es- 
 tates of gavelkind and coparcenary, &c., the 
 heir is a single individual, designated by the 
 common law, and when the term heirs is 
 employed, it means persons who are to take 
 successively as heir, and not persons who 
 are entitled to an equal, or even a common 
 I>articipation ; but our Act of 1791 is an 
 Act of descents as well as distributions, and 
 determines at once who shall be the heirs 
 of the real estate of an intestate and the 
 distributees of his personalty. 
 
 The term heirs is inapplicable to the suc- 
 cession to personal estate, and even as to 
 real estate, we have no other heirs except 
 the hseredes facti of our statute of distribu- 
 tions (Seabrook v. Seabrook). As remarked 
 by that eminent jurist, Chancellor Harper, 
 in Lemacks v. Glover, in an argument that 
 
 *551 
 has nearly *exhausted the subject: "In Eng- 
 land, when the term heirs or heirs of the 
 body is taken to mean a class of persons, 
 these cannot, in any manner or respect, take 
 as heirs or lieirs of the body. Whether con- 
 strued children, issue or descendants, next of 
 kin. &c., they must be always different per- 
 sons from the heirs: not so with us." In the 
 case under consideration the Court of Ap- 
 peals in E<iuity could not have attained the 
 
 226 
 
 conclusion that the "heirs of the body" of 
 the tenant for life took as purchasers, with- 
 in the rules as to the remoteness of limita- 
 tions, otherwise than by construing these 
 terms to mean the descendants of the ten- 
 ant for life living at the time of her death, 
 or something equivalent. No one can take 
 as heir of the body of another unless he ful- 
 fils the description, and is not only such a 
 person as would take the real estate of that 
 other under our Act of distributions, but 
 likewise a lineal descendent. As we are 
 obliged, then, to ascertain from the statute 
 of distributions who are the heirs of the 
 body, it is a logical consequence that we 
 should look there also to ascertain their 
 shares in the subject of gift. The statute 
 is the exponent of the full meaning of the 
 donor unless he has declared a contrary in- 
 tent, which is not pretended in the case be- 
 fore us. "And this agrees with what the 
 law supposes to be the rule of affection, 
 by which children are preferred to grand- 
 children and nearer kindred to the more 
 remote." (Per Harper, Ch. in Lemacks v. 
 Glover.) Certainly in all the cases on this 
 point which have hitherto come before the 
 Courts of South Carolina, the intention of 
 the donors would have been more completely 
 fulfilled by following the statute for the 
 shares, and it is believed that such would be 
 the result in a large majority of the in- 
 stances that will occur in practice. A fer- 
 tile mind may conceive cases of hardship 
 from the operation of any general rule, but 
 such hardship from the rule we are dis- 
 posed to establish in this matter, may be 
 avoided always by the careful expression of 
 the whole intention of the testator. In 
 Lady Lincoln v. Pelham, where the gift was 
 of "one-fourth to the children of A. and one- 
 fourth to or among the children of B." ; 
 and distribution per capita was directed, 
 Lord Eldon said, "I am not sure that my de- 
 
 *552 
 cision does *not defeat the intention." W^hat 
 was doubtful in that case seems certain 
 whenever there is a necessary reference to 
 the statute to ascertain the donees. Most, 
 if not all, of the English cases which hold 
 that the distribution shall be per capita, 
 where gifts are made to a class of persons, 
 such as to children, grand-children, to A. and 
 the children of B. to the next of kin of A., 
 &c. (Northey v. Strange, 1 P. Wans., .340; 
 Blackler v. Webb, 2 P. Wms., 38.3, are ex- 
 amples,) are not inconsistent with tlie rule 
 we have adopted, for in them there is no 
 necessary reference to the statute of dis- 
 tributions for any purpose. We do not go 
 to the statute to discover who are children, 
 next of kin, &c. ; but we are obliged to look 
 there to find out who are heirs of the body, 
 descendants or relations entitled to take ; 
 and in the cases which actually occur we 
 commonly find them, not strictly a class but 
 individuals standing in various degrees of
 
 TEMPLETOX v. W ALKHR 
 
 *564 
 
 kindred to the iiitostnto or first talker, nnd 
 entitled to nnetiUiil sliares of tlie estate. 
 
 It was strongly insisted in the argument 
 of this ease, that wherever several persons 
 take as pnrohasers under one gift, they 
 must take per capita, and tiiat no ease can 
 he found to the contrary. lUit where is the 
 necessary <'oniiection hetwe«'n the ideas of 
 purcha.se and e<iuality? Surely a testator 
 might provide for unequal distrihutlon 
 among those taking hy purcha.se; as hy a 
 gift to A. and the three children of B., so 
 that A. should take one half, or by a gift 
 to C. for life and upon his death to his chil- 
 dren then living, the eldest son of C. taking 
 oife half, however ininierous such children 
 may be. It is useless, however, to suppose 
 cases when examples may he found in the 
 books. In 2 Jarni. 40, it is said: "The stat- 
 ute of di.strihutions not only determines the 
 objects of a gift to 'relations,' hut also reg- 
 ulates the proportions iu which they take, 
 the gift being held to apjtly to the next of 
 kin and the persons whom the statute ad- 
 mits by representation, the whole being tak- 
 en per stirpes, not per cainta ; that is. the 
 property is distributable proportionably 
 among the stocks, not ecpially among the sev- 
 eral individual objects of every degree." 
 
 In Roach v. Hammond, (I're. in Ch. 401,) 
 on a gift by a testator of all his real and 
 per.sonal estate "for the use of his rela- 
 
 *553 
 *tions," it was determined that those who 
 would be entitled to his jicrsonal estate un- 
 der the statute of distril»utions, and those 
 only, should come in. and that they should 
 take in the proportions prescribed by the 
 statute; and the Lord Chancellor said it 
 had been often ruled accordingly in this 
 Court. See also Masters v. Hooper. (4 liro. 
 C. C. 207:) Devisme v. Mellish, (5 Ves. 525.) 
 
 In Stamp v. Cooke. (1 Cox. 2;{4.) where tes- 
 tator directed the residue of his estate to be 
 parted amongst his "next relations, as si.s- 
 ters, nephews and nieces." Sir Lloyd Kenyon. 
 Master of the Kolls, held that distrilmtiim 
 should be according to the statute, per stiriies. 
 He said, "the statute is not to be adverted to, 
 when testator has himself laid down a dif- 
 ferent rule, but has that been done?" 
 
 In Rowland v. (Jorsucli. (2 Cox, 1S7,) Sir 
 L. Kenyon applied a similar rule to the 
 words "descendants or representatives." say- 
 ing that no person, taking as representative, 
 can take otherwise than as the statute gives 
 it to representatives, i. e. per .stirpes. See 
 also Rooth V. Vickars, (1 Coll. 0;) Cotton v. 
 Cotton, (2 Rea. (57.) 
 
 It is now .setth'd in England, that in a 
 gift, "next of kin" means nearest in kindred 
 in degree, and imi)Iies no reference to the 
 statute of distributions. Rrandon v. Rran- 
 don. (.*{ Swanst. .S12:) Elmesley v. Young. (2 
 Myl. & K. 7^0:) (S C«.n. Eng. Ch. R. 227.) 
 Rut the opinion prmailed there for a long 
 time, that next of kin meant such of the 
 
 kindred as would be entitled to shares of an 
 intestate's estate, under the statute ; and 
 while that opinion prevailed, the statute 
 was also adverted to for the proportions of 
 the distributees. In the case of Stamp v. 
 Cooke, already <ited, the Master of the Rolls 
 said: "If the residue had been given to the 
 next of kin, and the testator had stopped 
 there, the statute would have been the rule 
 to go by, and although nephews and nieces 
 are not in fact so near as sisters, yet the 
 fund would have been distributed per stirpes, 
 according to the .statute." It is true, that in 
 riiillips v. Garth, (3 Bro. C. C. 64,) Mr. Jus- 
 tice Buller, sitting for the Lord Chancellor, 
 
 ♦554 
 determined *that, where a testator left his 
 property to be ecjually divided amongst his 
 next of kin, the subject of the gift .should be 
 divided per capita among the surviving hroth- 
 ers, nephews and nieces of the testator. It 
 ai)pears, however, from the remarks of Sir 
 John Leach, M. R., in Hinchley v. Madarens, 
 1 Myl. & K. 27, (0 Con. Eng. Ch. R. 480.) that 
 when the case of Phillips v. Garth came be- 
 fore Lord Thurlow. by way of appeal, his 
 Lordship expressed doubt as to the propriety 
 of the decision, and that the appeal was 
 abandoned upon a compromise among the 
 next of kin, by which the property was di- 
 vided among them per stirpes, and not per 
 capita — and that Mr. J. Buller's decision 
 was doubted by Lord Eldon, in Garrick v. 
 Lord Camden, (14 Ves. ;i85.) and disapproved 
 by Sir Wm. Grant, in Smith v. Campbell, (I'J 
 Ves. 403,) and the Master of the Rolls refers 
 these doubts and disapproval to so much of 
 the decision as directs distribution per cap- 
 ita. 
 
 In the ca.se of Hinchley v. Maclarens, 
 above cited, the testator gave the bulk of his 
 property to his daughter, but directed that 
 if she died before attaining the age of twen- 
 ty-one, his property should be equally divid- 
 ed amongst his next of kin. The testator 
 left surviving him his daughter, one broth- 
 er, and two nephews anil a niece, the chil- 
 dren of two deceased sisters. — The daughter 
 died under twenty-one, intestate and unmar- 
 ried. Sir John Leach determined that where 
 the words "next of kin" were used simplic- 
 iter in a gift over, and without explanatory 
 context, showing a different intention on the 
 part of the testator, they must be taken to 
 mean next of kin, according to the statute 
 of distributions, and that the property must 
 be divided, not per capita, but per stirpes. 
 
 Sir John Leach reiterated this opinion, 
 upon a like state of facts, iu Elmeslev v. 
 ioung, 2 .Myl. & K. 82, (7 Con. Eng. Cli. R. 
 270.) but his opinion was overruled by Com- 
 missioners Shadwell and Rosan<iuet, mtou ap- 
 peal, on the ground, however, that there was 
 no reference to the statute, for the meaning 
 of the words "next of kin," 2 Alyl. & K. 780, 
 (8 Con. Eng. Ch. R. 227.) 
 
 It is the opinion of this Court that, by the 
 
 227
 
 *555 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 *555 
 principles of the *common law, by the rea- 
 soning of the Euglisli cases, and by our own 
 law and policy, we are justified in establish- 
 ing as a general rule, in cases lilce tlie one 
 before us. that the partition shall be per 
 stirpes ; and it is so ordered and adjudged 
 in this case. 
 
 O'XEALL, EVANS, WARDLAW, FROST, 
 WITHERS and WHITNER, JJ., and DUN- 
 KIN, Ch., concurred. 
 
 3 Rich. Eq. 555 
 THOMAS COLLIER and Others v. ELEA- 
 NOR COLLIER and Others. 
 (Columbia. Dec, 1850.) 
 [Wills (©=3531.] 
 
 Testator bequeathed to his deceased "son 
 John's children" a negro; to his deceased "son 
 William's children" another negTO ; to his 
 "daughter Margaret," and to each of his other 
 four children, naming them, certain negroes; 
 and, "tenthly, all the rest of my estate not yet 
 disposed of, I give to be equallj- divided among 
 my above named heirs;" Held, that, under the 
 tenth clause, the legatees took per stirpes and 
 not per capita ; that is to say, that "'John's 
 children" took, between them, one share, "Wil- 
 liam's children," between them, one share, and 
 the five children of testator each one share. 
 
 [Ed. Note. — Cited in Perdriau v. Wells, 5 
 Rich. Eq. 28; Eelder v. Felder, Id. 515; 
 Barksdale v. Macbeth, 7 Rich. Eq. 133 ; Allen 
 V. Allen, 13 S. C. 532, 86 Am. Rep. 716 ; Kern- 
 good V. Davis, 21 S. C. 207 ; Dukes v. Faulk, 
 37 S. C. 206. 16 S. E. 122, 31 Am. St. Rep. 
 745. 
 
 For other cases, see Wills. Cent. Dig. § 1150 ; 
 Dec. Dig. (S==>531.] 
 
 Before Dunkin, Ch., at Orangeburg. 
 
 William Collier, who died in January, 
 1849, by his last will and testament, bearing 
 date the 10th March, 1846, devised and be- 
 queathed as follows: 
 
 "First. 1 give to my son John's children, a 
 negro man named Jack. Secondly, I give to 
 my son William's children, a negro man 
 named Israel. Thirdly, I give to my daugh- 
 ter Margaret, a negro woman named Harri- 
 et, and her children. Fourthly, I give to my 
 daughter Sophia, two negroes, Selina and Al- 
 fred. Fifthly, I give to my sou Thomas, two 
 negroes, Job and Edward. Sixthly, I give to 
 my son George, two negroes, Ned and Sophia 
 Ann. Seventhly, I give to my daughter Nel- 
 ly, a negro woman named Hager, and her 
 children, and a negro girl named Rosanua ; 
 but in the event should my daughter Nelly 
 die, leaving a cliild or children, in that case, 
 it is my will, that the said negroes go to her 
 child or children ; but should she die before 
 her husband David, it is my will that oue- 
 
 *556 
 half the said negroes *go to the said David ; 
 but should the said David die before my 
 daughter Nelly, then it is my will that none 
 of the said negroes shall go to any of the 
 
 heirs of the said David, Init it is my will, 
 that the negroes after the death of my 
 daughter Nelly, come back to my above 
 named heirs. Eighthly, I give to my wife, 
 Eleanor, three negroes, Moi-iah, Stephen and 
 Ciesar, also one horse, named Jim, and a 
 Dearbou wagon, and as much household fur- 
 niture as she may think necessary for her 
 use, to be only during her life, after death, 
 it is my will, that the property I give my 
 wife be equally divided among all my above 
 named heirs. Ninthly, I give to my grandson 
 Oliver, one bed and furniture. Tenthly, all 
 the rest of my estate not yet disposed of, I 
 give to be equally divided among all my 
 above named heirs." 
 
 William Collier left surviving him, his 
 widow, his five' children, Margaret, Sophia, 
 Thomas, George and Nelly, named in his 
 will ; five grand-children, namely, J. 'D. W. 
 Collier, Lewis P. Collier, Francis C. Collier, 
 Mary A. Collier and William O. Collier, chil- 
 dren of his deceased son, William Collier; 
 and five other grand-children, namely Mary 
 Weathers, Susannah Moorer, S. W. M. Col- 
 lier, Oliver D. Collier, and Albert G. Collier, 
 children of his deceased son John Collier. 
 
 The only question was as to the proportion 
 in which the parties took the property, a 
 tract of land, and about eighteen slaves, 
 which passed under the 10th clause of the 
 will. 
 
 Dunkin, Ch. The only question is as to 
 the proportion, in which "the above named 
 heirs" shall take. The context of the will 
 seems to confine the term to the children and 
 grand-children of the testator, and not to in- 
 clude ills widow. The principle of the case 
 cannot well be distinguished from that in- 
 volved in Campbell v. Wiggins, (Rice's Eq. 
 10.) The authority of that case is much 
 shaken by the decision of the Court of Er- 
 rors, on the same point, in Lemacks v. Glov- 
 er, (1 Rich. Eq. 141.) Under these circum- 
 stances, it seems proper, that the doctrine 
 should be reviewed ; and I recommend that 
 this case be carried up for that purpose. At 
 
 *557 
 present, I am bound by the *authority of 
 Campbell v. Wiggins, and must decree, that 
 the children of John and the children of Wil- 
 liam, take per cajuta, with the children of 
 the testator. It is ordered, that the writ of 
 partition issue to divide the estate accord- 
 ingly. 
 
 The complainants appealed, on the ground. 
 
 That his Honor should have decreed that 
 the children of John and the children of Wil- 
 liam take per stirpes, and not per capita, 
 with the children of the testator. 
 
 Munro, for appellants. 
 Ellis, contra. 
 
 Y/ARDLAW, Ch., delivered the opinion of 
 the Court. 
 
 228 
 
 <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inde.\e3
 
 COLLI i:k v. collier 
 
 *558 
 
 It is the opinidii of this Court, tlint tliis 
 case must lie determined on tlie authority t)f 
 the case of Templetoii v. Wallier, [.'{ Ridi. E«i. 
 f)4.'i, 55 Am. Dec. VA*\.\. and we refer to tluit 
 ca.se for the reasoning and autliority l>y 
 wiiich our general conclusion is attained. 
 The words of jjfift are here somewhat differ- 
 ent, and it has been ar;;ued that the testator, 
 hy directinj; that his estate shall 'he e<iually 
 <livided anionj; all his ahove named heirs.' 
 lias manifested liis intention, that the dis- 
 tribution of Ins estate shall be per cai)ita 
 amon;r all who hrinj; themselves within the 
 scope of the term 'heirs'; and that this case 
 is within the exieiition to tiie iieneral rule. 
 But it seems to us. that upon the whole will, 
 and particularly by the maimer and amount 
 of the several primary ;:ifts to his 'son .Iohi\'s 
 children,' to his 'son William's children,' to 
 his 'daughter Margaret.' his 'daughter Sophia' 
 and to his other children, and by the phra.se 
 'above named heirs.' the testator signiti''s his 
 purpose, that his "son .Tohn's children' shall be 
 one of his lieirs, his "sou William's children' 
 
 sb.ill lie one of his heirs, and each of his 
 own children one of liis heirs; and that the 
 words of e(iuality are satisfied by et^ual dis- 
 tribution amongst those of the same degree, 
 according to the statute. The testator's 
 'grand-son, Oliver,' is represented to be a 
 son of .Jolm, and will it be urged that testa- 
 tor intended Oliver to take two full, etiual 
 shares'/ 
 
 The appeal presents no question as to the 
 ♦558 
 right of the widow, •Eleanor, to a share of 
 the residue of the estate, and this Court 
 has not considered that nuitter. 
 
 It is ordered and decreed, that a writ of 
 partition issue to divide the residue of the 
 testator, William Collier's estate, among his 
 children and grand-<-hildr(>n. per stiri>es; 
 and the circuit decree is modified accordingly. 
 
 O'NEALL, EVANS, WARDI^W, FROST\ 
 WITHERS and WIIITNER, JJ., and DUN- 
 KIX, Cli., concurred. 
 
 Decree modified. 
 
 229
 
 IN THE COURT OF ERRORS 
 
 COLrMHlA— .MAY, 1851 
 
 All tiiiv H^'nr.KS axd Ciiancllloks i'rkskxt except Wardlaw, J., 
 
 WHO WAS ABSKNT HOLDING THIC CIRCUIT CoURT 
 
 FOR Charleston. 
 
 .TAMi:s M. 
 
 3 Rich. Eq. *559 
 *('AKI:Y M'Lriii:. Adm'r. V 
 YOlXC;, JIN. 
 
 (C<)liiinl>ia. May. isrd.) 
 
 I n ,7/.v e=jG14.1 
 
 Ti'stJitdi' (Icvist'd rciil ])n)i)t>rt.v to his 
 '■(liui;:lit<'r ('., lor and duriiiir the tt'rin of her 
 natural life; and at iicr death, I «ive, i)e(!ueath 
 and devise the same, abs()lMt(dy and forever, to 
 her lineal descendants; and in case she should 
 die without line;il descentlants. (one or more.) 
 li\iim at the time of her ii"eatli. tlien." over: 
 
 I I (III. that ('. took a life estate, with remainder 
 to her lineal descendants as purchasers. 
 
 [Ed. Note.— Cited in Ilays v. Mays. 5 Kich. 
 Its; Dannor v. Trescot, Id., !>(!(>; Addison v. 
 Addison. !) Rich. I-:(i. (il ; Markley v. Single- 
 tarv. 11 Kich. Eq. '.VM\: Anderson v. Khodus, 
 12 Kich. Eq. Ill; Monairhan v. Small, (j S. C. 
 ISli; Kannister v. Hull. Hi S. C. 'J-JS ; Mcln- 
 tyre v. Mclntyre. Id.. l'!>4, iJ't.-). JltT ; Fields v. 
 Watson, 2:> S. C. -Ki. ;">: Smith v. Smith, 24 
 S. C. 815; Archer v. Ellison. 'JS 
 S. E. 71H; Fuller v. Missroon, .">"» 
 14 S. E. 714; Shaw v. Erwin. 41 
 10 S. F. 4!)<); Simms v. I5uist. r»2 
 r)(iO. nci. :!() S. E. 4(I(); Duckett V 
 S. ('. i:5;-). 4.') S. E. i:iT; Williams 
 S.S S. C. 270. fiS S. E. 241 ; 
 102 S. r. in. S6 S. E. 214. 
 
 For other cases, see Wills, Cent. Diir. § 1402; 
 Dec. Disr. <£=»014.] 
 
 I Wills C=>(;H).] 
 
 Testator liecjueathed personal proi)erty to 
 his "dauiihtei- ("., and the issue of her body for- 
 ever: hut in case of my said daughter's death 
 without issue living at the time of her death, 
 then." ov<'r; Held, that ('. took a life estate 
 with remainder to her issue as jiurchasers. 
 
 I Ed. Note. — For other cases, see Wills, Cent. 
 Difi. S l.XI; Dec. Dig. <©=»«)10.] 
 
 \Wilh <S=(>10.1 
 
 Testator luMiueathed personal property to his 
 ■•dau;:hter ('. ; hut in case of my said daugh- 
 ter's death without issue livinu' at the time of 
 her dr.-ith, then." over; ('. died leaving issue; 
 Held, that ('. took an ahsohite estate in the 
 property, and that the same vested in her hiis- 
 liand. jure mariti. 
 
 I Ed. Note.— Cited in Huist v. Dawes. 4 Kich. 
 Eq. 424. 
 
 For other cases, soe Wills, Cent. Dig. § ];'>.S4; 
 Dec. Dig. <S=G10.1 
 
 [This case is also cited in Simms v. Buist 52 
 S. C. r>.-»4. :{0 S. E. 4tM), and distinguished 
 therefrom.] 
 
 S. C. 241. 
 
 ;."> s. (". ;5:>o, 
 
 S. C. 214, 
 S. C. ").")!), 
 P.utler. 07 
 (Jause, 
 Adams v. Verner, 
 
 Keforc Johnston, ("li.. at Xowhorry, July, 
 1S49. 
 
 Jonathan Davenport, deceased, by his last 
 will and testa nu'iit. lK>aring date the 18th 
 -May, 1.S42, devised and bwiueathed as fol- 
 lows: 
 
 "Ist. It i.s my will ami desire, that all luy 
 jnst debts and fnneral expeiLses be first paid 
 out of tlie cash on hancL and not«'s and bonds 
 owing to me at the time of my death: and. 
 if that fund be not sufficient, then out of the 
 balance of my estate. 
 
 ■'2d. It is my will, that all the personal 
 ♦560 
 property which I have *heretofore jriven to 
 any of mj~ children, and put them in posses- 
 sion of, be vested in my said children re- 
 spectively, absolutely and forever. 
 
 "8(1. I jiive anil devise to my daughter. 
 Ciitherine Davenport, the whole of my real 
 estate, of which I may die seized, containint; 
 in all about fourteen hundred acres of land, 
 for and during the term of her luitural life: 
 and at her death I give. be(iueath, and devise 
 the same absolutely and forever to her liiieal 
 descendants ; and in case she should die 
 without lineal descendants, (one or more,) 
 living at the time of her death, then it is my 
 will, that the whole of saiil real estate revert 
 to my estate, and be disposed of as hereinaft- 
 er directed. 
 
 "4th. I give and bequeath to my daughter, 
 Catherine Davenport, and the issue of her 
 b(.dy forever, my Merriman clock, and the 
 following twenty-f(Uir negro slaves, viz: 
 Andy, Kit, I'hillis, Smith. Frances. Milt(tn, 
 Sam. (son of Kit.) Caroline, Kitter. Amand.i. 
 Melinda, Charles, Lucinda. (Jrittin. Jerry. 
 Lewis, I'eter. Anderson his wife Martha, 
 her ciiihlren Mar.v. Nancy and Ennly. Samp- 
 son and Tener, with their futurt' increase: 
 1 ut in case of my said daughter's death with- 
 out issue living at the time of her death, 
 then it is my will, that the property herein 
 bequeathed to her, by this or any other 
 clause of my will, be ecpially divided l)e- 
 tween my chihlren. James M. Davenport, 
 
 <S=»For other cases see same topic aud KEY-NUMBEH iu all Key-Numbeied Digests and Indexes 
 
 231
 
 ■5G0 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 John G. Daveniioil aiul Aimy Hill ; and I 
 give and bequeath and devise the same to 
 my said three children and their heirs for- 
 ever, share and share alike. 
 
 "5th. I give and bequeath to my said 
 daughter, Catherine Davenport, the choice 
 of my wagons, and four choice horses : pork 
 sufficient for one year, and a stock of hogs 
 sufficient to make pork for the next succeed- 
 ing year ; one thousand bushels of corn, and 
 a proportionate quantity of fodder and oats ; 
 three choice beds and furniture, all my 
 household and kitchen furniture, and my 
 barouche and harness. 
 
 "Och. I give and bequeath to my son, James 
 M. Davenport, and to his heirs forever, the 
 following negro slaves, with their future in- 
 crease, viz: Ned, Mariah, Iverson, Isaac, 
 
 *561 
 Claiborne, *Viny. Charlotte, Hannah, Blu- 
 ford, (son of Easter,) Nelson and old Hannah. 
 
 "7th. I give and beiiueath to my son John 
 G. Davenport, and to his heirs forever, the 
 following negro slaves, with their future in- 
 crease, viz: Jim and his wife Sarah, with 
 their four children, Solomon, Elvira, Ad- 
 niii-al and Muzilla, also old Sam and his wife 
 Esther. 
 
 "8th. I give and bequeath to my daughter 
 Aimy Hill, and to her issue forever, the follow- 
 ing negro slaves, with their future increase, 
 viz: Albert, Denips, Ellick, Jo.vce, Nelson, (son 
 of Albert,) Dorcass with her children, Ann and 
 I'eggy and Ephraim ; also tifteen hundred dol- 
 lars in cash ; but in case my said daughter 
 should die without leaving issue alive at her 
 death, then it is my will, that the property 
 bequeathed to her in this clause be equally 
 divided between my three children, James M. 
 Davenport, John G. Davenjiort and Catharine 
 Davenport, and I give and bequeath the same 
 to my said three children, absolutely and for- 
 ever, share and share alike. 
 
 "9th. To my daughter Maria Louisa Mc- 
 Lure, and to my daughter Elizabeth G. Rudd, 
 deceased, I have heretofore given and ad- 
 vanced their full portion of my estate, for 
 which reason no provision is made for either 
 of them in this my will. 
 
 "10th. It is my will and desire, that all 
 the rest and residue of my estate, not herein 
 specitieally devised and bequeathed, be sold 
 by my executors, on such terms, conditions 
 and credits as they shall deem proper, and 
 the proceeds arising therefrom, after the pay- 
 ment of my debts, and the legacies herein 
 bequeathed, be equally divided between my 
 four children, James M. Davenport, John (J. 
 Davenjjort, Aimy Hill and Catharine Daven- 
 port, share and share alike, absolutely and 
 forever ; and in the event of either of my 
 said four children dying before such division 
 should be made, the issue of such child or 
 children shall take among them, the share 
 to which their respective parents would have 
 been entitled if they had lived. I have here- 
 tofore given property to each one of my 
 
 children, and have put them in possession of 
 the same ; and it is my express intention 
 
 *562 
 that what *I have so given them, and what 
 I have given them in this my will, shall be 
 their portions of my estate in full, notwith- 
 standing any apparent or seeming ine<iuali- 
 ties, as I have divided it out among them ac- 
 cording to my own intentions and my own no- 
 tions ; and I am, (or at least think I am,) 
 the best judge in the matter." 
 
 The bill was filed by the plaintiff, as ad- 
 ministrator of James M. Young, deceased, 
 the husband of testatoi-"s daughter, Cathar- 
 ine, for a settlement of his estate. Mrs. 
 Young was also dead. The defendant is her 
 only child. 
 
 Johnston, Ch. This case is fully stated in 
 the pleadings and exhibits, and was heard 
 upon the facts set forth in the bill. The argu- 
 ment was so limited and incomplete, as to 
 afford scarcely any guide whatever to the 
 proper decision of it. For the purpose of 
 eliciting further argument, and particularly 
 the adduction of authorities bearing on the 
 points raised, I threw out at considerable 
 length, the impressions which the imperfect 
 argument had produced on my mind ; but 
 nothing of the kind has been furnished me, 
 and I have been left to grope my way to the 
 conclusions which I am about to announce, 
 most of which have therefore been adopted 
 with much hesitation. 
 
 I think it would introduce a principle en- 
 tirely too perplexing in practice, and so far 
 as I know, without precedent, to allow Mr. 
 McLure to carry back the note given to 
 Stevens, through the intermediate note, to 
 the decree, and give him the lien of that 
 decree, upon proof that the last note remotely 
 arose out of that consideration. He will 
 nevertheless be entitled, in taking an account 
 of his intestate's estate, to rank as a credi- 
 tor for the money he has been obliged to pay 
 on that note; and may thus be partially, if 
 not wholly, reimbursed. 
 
 I am of opinion that, according to the de- 
 cisions on Bell's will, («)— from which I can- 
 not distinguish this case — the personalty 
 was well limited to the defendant as pur- 
 chaser, in remainder, by the fourth clause 
 of his grandfather's will ; and, of course, the 
 
 *563 
 *plaintiff's intestate was chargeable with the 
 profits of it, from the time the remainder 
 took effect. In taking the account, there 
 may be some modification of this liability, in 
 i-egard to slaves employed in planting, which 
 may depend upon the season of the year when 
 Mrs. Young, the life-tenant, died. The precise 
 time of her death is not stated in the plead- 
 ings ; and I am therefore compelled to re- 
 serve this point until the commissioner's 
 report comes in. 
 
 'a) Riley's Eq. 247: Rail, Eq. 535; 2 Hill, 
 32s, and see 2 Sp. 7SG.
 
 MLURE V. YOLXCJ 
 
 *565 
 
 With respect to the real estate, covered by 
 the third ohiiise of the will, I entertain, at 
 present, impressions somewhat differinj^ from 
 those .suKfiested by me at the hearing'. 
 
 If we consider the word^ of the direct 
 devise in this clause, apart from those relat- 
 ing to the lindtation over, I suppose that 
 tile words "lineal descendants" — IteinK tes- 
 tamentary words, and not words of a deed — 
 may he construed eijuivalent to heirs of the 
 liody ; and then it follows, aceordinj; to all 
 the authorities, that the estate created was 
 a fee conditional in Catharine, the first pur- 
 <-haser.(?>) 
 
 I shall not stop here to inciuire, whether 
 the words of limitation over, or any other 
 words in the context, are sufficient so to con- 
 tine the words of limitation in the direct 
 flift — hy pointing them to the heirs of the 
 body livinj; at Catharine's death — as to 
 confer a remainder on those specific lieirs, 
 hy purchase, (c) But assuming, for the pres- 
 ent, that there is no such (lualifyinj,' matter 
 in the context, and that therefore the will 
 vested a fee conditional in Catharine, I shall 
 proceed to state the results, which, in my 
 opinion, nmst follow in this case upon that 
 assumption. 
 
 This kind of estate, says Blackstone, (</) 
 "was called a conditional fee, by reason of 
 the conditioni expressed or implied in the 
 donation of it: that, if the donee died without 
 such particular heirs, the land should revert 
 to the donor — for this was a condition annex- 
 ed by law to all grants whatsoever: that, 
 
 *564 
 on fail*ure of the heirs specified in the grant. 
 the grant should be at an end, and the land 
 revert to its ancient proprietor." This emi- 
 nent commentator i)roceeds to state the in- 
 cidents of fees conditional, and among them 
 one was, that the performance of the con- 
 dition by the birth of issue "enabled the 
 tenant to aliene the land, and thereby to bar. 
 not only his own issue, but also the donor of 
 his interest in the reversion." "If, however," 
 he proceeds, "the tenant did not in fact 
 aliene the land, the course of descent"— mean- 
 ing the des(/ent per forniam doni — "was not 
 altered by this performance of the condition, 
 for," says he, "if the issue had afterwards 
 died, and then the tenant, or original grantee, 
 had died, without making any alienation, the 
 land, by the terms of the donation, ct)uld 
 descend to none but the heirs of his body: 
 and, therefore, in default of them, must have 
 reverted to the donor. For wiiicb reason, 
 in order to subject tlie lands to the ordinary 
 course of descent, the donees of these con- 
 ditional fee simples took care to aliene as 
 soon as they had performed the condition. 
 
 (h) 2 m. Com. im. (and note 10,) l^Sl. 
 
 {(■) Sec authorities cited in Hi il v. Hull '2 
 Strob. K(|. IS!). 1<)'J. 
 
 U/l 2 I'd. Com. 110 anil vidv 1 Cniisc. Tit. ."t. 
 ch. 1', § .-., S. !), 10. 21. L'S; and Tit. 1 .tSkI 2 
 passim, 2 VA. Com. 111. 
 
 by having issue; and afterwards repurchased 
 the lands, which gave them a fee .simple 
 absolute, that would descend to the heirs 
 general, according to the course of the com- 
 mon law." 
 
 Another incident of fees conditional was 
 that the husband of a woman actually seized 
 of such an e.state, became tenant by the 
 curtesy, upon having issue by her, born alive, 
 and callable of inheriting her estate. "In 
 this case," says this commentator, (e) "he 
 shall, on the death of his wife, hold the lands 
 for his life, as tenant by the curtesy of Eng- 
 land." And he lays it down upon authority, 
 that by the birth of the i.ssue, the husband 
 became, even during the life of his wife, ten- 
 ant by the curtesy initiate, .so as to be en- 
 titled to do homage for her land alone, and 
 not conjointly with her, as he was bound 
 to do before the issue was born ; that be 
 also became natural guardian of the issue or 
 heir apparent of the land ; thus, for the 
 term of his life, displacing the wardship of 
 the lord of the fee; and that his estate by 
 
 *565 
 
 the cur*tesy, once vested, was not determin- 
 able by the death or coming of age of the 
 infant heir. 
 
 This authority is sultioient to show that, 
 according to the law of England, (which is 
 our law, except so far as it is modiiied by 
 statute.) if -the e.state vested in Catharine by 
 the will of her father was a fee conditional, 
 she Jiever having alienated it, nor converted 
 it into a fee simple absolute, it descended 
 per formam doni at her death upon the de- 
 fendant, her sole is.sue. subject, however, to 
 the life estate in her husband, as tenant by 
 the curtesy, as contended for in the plain- 
 tiff's bill. The conse(iuence of that would 
 be, that the husband's estate would not be 
 accountable for rents accrued between the 
 death of the wife and his own death. 
 
 The law of this case must undoubtedly be 
 as I have stated it, unless there is something 
 in the statute of 17!)1, 5 .Stat. 10:.*, to alter 
 or modify it. The (iue>tion then is, how far 
 does this statute a fleet estates in fee condi- 
 tional, or their incidents'/ It is very clear 
 that the statute does not, in terms, include 
 such estates, but is ekpres>ly made to affect 
 fee simjile only. And. if we look to the con- 
 text, we shall see that its intention was only 
 to regulate the descent among heirs general, 
 according to the course of the common law, 
 and to prescribe a more equitable canon than 
 before existed, to be apiilied to ca.-^es in 
 which decea.sed parties possesse<l the ability 
 ti» devise the estate according to their own 
 pleasure, but neglected to do sc». This was 
 entirely consonant to fee simples absolute, the 
 species of estates expressly mentioned in the 
 statutt' ; but could not be intended of fees 
 conditivinal, which were of a quality that ad- 
 
 (() 2 VA. Com. 110. IL'G. 
 
 233
 
 *565 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 mitted of transmission by deed only inter 
 vivos, and not by will. 
 
 I do not snppohe it will be insisted that 
 this statute was intended to apply directly to 
 estates of the description we are now con- 
 sidering, or that Ihey were intended to be in- 
 cluded in the property over which it was to 
 have direct operation. If that were the case, 
 it is easy to show that it aniou«ts, virtually, 
 to a complete abolition of fees' conditional, 
 which would be a very strong interpretation 
 to be put on a statute which makes no iiien- 
 
 *566 
 tion of *such estates at all. Uihat would be 
 left of an estate descendible to specific heirs, 
 if it were taken from them and given to heirs 
 geiieralV Taken from the special male or fe- 
 male line, provided for in tlie contract, and 
 given to males and females promiscuously? 
 Or from the lineal issue, whose advancement 
 formed the consideration of the grant, and 
 given to collaterals? What would be left of 
 the donor's right of reversion, if this Act 
 were made to apply to such estates? Though 
 the contingency should happen upon which, 
 by the terms of his grant, the estate should 
 return to him, to wit: the failure of the 
 special heirs mentioned in it, yet, upon the 
 construction now under consideration, tlie 
 land should not revert, but go to other per- 
 sons never within the donor's contemplation. 
 This v,ould be a startling construction. 
 How many titles and how many settlements 
 would it destroy! It would shake the landed 
 interests of the State to an extent and to an 
 amount in value that would confound the 
 rashest reformer among us, and cause even 
 him to pause. When I consider the number 
 of ad.iudicaiions whicli till our judicial ar- 
 chives and oar books of repoils, in which fees 
 conditional are recognized and supported as 
 valid and subsisting estates, I cannot hes- 
 itate to discard any interpretation of this 
 organic statute regulating descents, wliich 
 rests for its validity only on a principle that 
 abolishes this established tenure. 
 
 But, as I have said, no one contends that 
 the statute of 1791 applies directly, or was 
 intended to apply directly, to fees condition- 
 al. No one contends that it regulates direct- 
 ly the distribution of such estates. Does any 
 one pretend that, upon the death of the first 
 purrhaser of a fee conditional, it is to be dis- 
 tributed by giving the widow or widower of 
 the party one-third? or that, in case tliere 
 be no lineal descendants, the distribution is 
 to l)e extended to collaterals? And if this is 
 not contended for, what is meant by saying 
 that the statute (which is only for distribu- 
 tion) applies to such estates? 
 
 But I may be asked, do you contend that 
 *567 
 the statute of 1701 *has no influence (/) what- 
 
 (/i F.'arne 107 uf Phila. Ed. of isl!); p. 10:5 
 of :!(1 Euy. Ell.; Martia v. I'rice, 2 Rich. Eq. 
 470. 471. 
 234 
 
 ever upon the rule of inheritance in tliese es- 
 tates? Certainly I do not. It has an indi- 
 rect influence. We are told by the author- 
 ities that in England "a devise to the heirs 
 of the body comprehends the remotest issue, 
 and takes the oldest son previous to and in 
 preference to the younger." I suppose tliis 
 rule of primogeniture may bo still applicable 
 to the inheritance of fees conditional created 
 before 1791. It is understood to be very dif- 
 ferent in relation to such estates created 
 since that time; and I believe the uniform 
 practice is to apply a rule of inheritance 
 drawn from the statute of 1791. But this is 
 not because the abolition of the right of 
 primogeniture, contained in that Act, was in- 
 tended by the statute to be directly applied, 
 or is directly applicable, to fees conditional. 
 I have, upon another occasion, endeavored to 
 slaow tliat this provision in the statute was 
 intended to apply solely to estates wliich liad 
 previously descended according to tlie gener- 
 al law" of inheritance, and which it was the 
 object of the statute to render distributable 
 by a different rule ; and that the right of 
 primogeniture was abolished for the purpose 
 of introducing the new rule ; the object be- 
 ing to clear the ground for the general dis- 
 tribution, by abolishing tliat which stood in 
 its way. But all this related exclusively to 
 intestates's estates, descendible to lieirs gen- 
 eral, according to the course of the common 
 law. The influence which this legislation lias 
 upon fees conditional is simply this: the 
 statute of 1791 serves to define who are heirs, 
 and we resort to it for the purpose of learn- 
 ing from its provisions wliat lineal descend- 
 ants come within the description, and to 
 these persons we adjudge the inheritance to 
 belong, as heirs of the body. The process Is 
 just the same as if the inheritance of the 
 special estates were, by the terms of the in- 
 strument, made descendible to the sheriffs of 
 the county, and, by a change of the law, that 
 ofiice sliould be vested in a plurality of per- 
 sons ; we should have to resort to the statute 
 by wliich tlie tenure was changed, in order to 
 know wliat persons were, as sheriffs, entitled 
 
 *568 
 to the property. And so in rela*tion to the 
 statute of 1791. This statute may be regard- 
 ed as a table of di'tinitions, to wliich convey- 
 ances of fees conditional, subse(iuently ex- 
 ecuted, may be supposed tacitly to refer; and 
 when we And in such conveyances the words 
 heirs of the body, we turn to tlie Act for tlie 
 purpose of learning what issue of the body 
 are therein declared to be heirs, and in what 
 proportions ; just as, in the case of such con- 
 veyances executed before the statute, we 
 should resort to the definitions of the com- 
 mon law, to which the instrument must be 
 supposed to have referred. This is the only 
 function the statute performs as to fees con- 
 ditional. It furnishes information. But as 
 to fee simples, for the regulation of which it 
 was enacted, it goes further, and commands
 
 M'LURE V. YUL XG 
 
 »570 
 
 how tln'.v sliall be distril)iite<l. Rut the stat- 
 ute of IT'.tl is not entitled to operate to any 
 {ireater extent than this. To the incident of 
 inheritance belonging to fees conditional, it 
 has tlie indirect application whieh I have 
 stated. Hut it is not perceived how it applies 
 to any other incident or <iuality of such es- 
 tates: whether arising lu'forc or after the 
 descent is cast. For instance, can it be sup- 
 po.siMl that it abolishes or niodities the pow- 
 er of barring the iidieritance by alienation? 
 
 I do not perceive by what process of n'a- 
 .soidng it can be established that the tenancy 
 by the curtesy is abolished, as incident to 
 this particular descrii»tion of estates, any 
 more than any other of its incidents. The 
 estate being pernutted to exist, and being 
 recognized by law, must carry with it all its 
 inclih'nts, and this among the rest, unless 
 abolished expressly or by necessary in)plica- 
 tion. 
 
 It is a very different (juestion whether this 
 tenancy is abrogated in relatlim to fee simple 
 e.states absolute, upon which much might be 
 said. Ulion that subject it would be improp- 
 er and unbecoming to volunteer an opinion 
 here, where the case does not call for it. 
 But this case does involve the point I have 
 endeavored to discuss; and, according to the 
 best view I can take, witli my present op- 
 portunities, I must come to the conclusion 
 (and so I adjudge) that, if Catharine's estate 
 was a fee conditional, her husband was enti- 
 tled to a tenancy by the curtesy ; and he was 
 
 *569 
 
 *not accountable for the rents of the land ac- 
 cruing between her death and liis own. 
 
 Till' remaining question is, whether the 
 limitation over is sutficient to convert the 
 estate into an estate for life in Catharine, 
 with remainder to the defendant as pur- 
 chaser. The words of the limitation over 
 are nearly the same and of identical import 
 with those employed as to the personalty: 
 and it would seem, at first view, calculated 
 to produce the same effect. lUit the ca.se of 
 Whitworth v. Stuckey, 1 Itich. K(i. 411, 412, 
 413, is pre<"isely in point, to show that, as 
 api)licable to real estate, such words are 
 not sutticient to affect the direct limita- 
 tion. And to that case, and the authorities 
 tliere cited, I refer: and with the more confi- 
 dence, because the Chancellor who delivered 
 the opinion was the same who had given the 
 judgment on liell's will: and on this latter 
 occasidii offers his reasons for applying a dif- 
 ferent rule in ri'lation to real and pcrsunal 
 property. 
 
 It is ordered that the foregoing opinion 
 stand for the decree of this Court. 
 
 It is further ordered that the Coniniission- 
 er do call in the creditors of the jilaintilfs 
 intestate, to prove and establish their de- 
 mands, l»y a day to be fixed by the Conuuis- 
 sioner, by advertisement in the .*>outli Caro- 
 linian newspaper; and that I lie Co.inuissiou- 
 
 er do take an account of the said estate, 
 charging it, among other things, with the 
 profits of the personal estate limited in re- 
 mainder to the defi'iidant. by the will of 
 .lonafhan Davenport, according to the fore- 
 going opinion : and that the Commissioner 
 report the proper mode of distributing the 
 assets of the said estate among its creditors, 
 and what balance, if any, remains for distri- 
 bution to the defendant, the sole distributee. 
 The costs to 1k> paid out of said estate iu the 
 ! first instance. 
 
 The complainant appealed, on the following 
 grounds : 
 
 1st. On the bill filed by Young and wife 
 against I)aveni»ort. her guardian, this Court 
 ordereil the property to be delivered to Young, 
 but declared that the guardian should have a 
 
 *570 ' 
 
 lien on the *property for any balance that 
 might be found due to him ; a balance of 
 .i;4()l.ir) was found due to the guardian, for 
 which Young gave his note; Davenport 
 transferred the note to Stephens, and Young 
 gave to Stephens a new note, with Mcl.ure as 
 surety ; and the surety having paid the note 
 since Young's death, it is submitted that 
 his Honor erred in declaring that he is not 
 entitled to a lieu on the property for the debt. 
 I'd. That by a proper construction of Jona- 
 than Davenport's will, the land was devised 
 to his daughter Catharine in fee simple. 
 
 .'^(1. That his Honor erred in deciding that 
 the personalty bequeathed to testator's daugh- 
 ter C'atharine was well limited to the defend- 
 ant, her only cliild. as purcha.ser in remain- 
 der. 
 
 4th. That his Honor erred in deciding that 
 the said Catharine took only a life estate in 
 the property bccpieathed to her by the 4th 
 and nth clauses of the will. 
 
 nth. That his Honor erred in not directing 
 that the estate of .lames M. Young, decea.sed, 
 should not be held to account for the property 
 which the .said Catharine received under the 
 oth clause of tlie will, nor for the clock 
 be»iueathed to her by the 4th clause — seeing 
 that that property, or the greater part of it, 
 was i-onsuujed or worn out before the estate 
 came into the possession of .said Young. 
 
 The defendant also appealed, on the follow- 
 ing gnanids: 
 
 1st. That his Honor erred in holding that 
 j Mrs. Catharine Young took a fee conditional 
 I in the lands devisi>d to her by the .'!d ilause 
 j of .Tonathan Davenport's will. 
 ! I'd. That tenancy by the curtesy does not 
 i now exist in this State; and that his Honor 
 I erred in deciding that .Tames M. Ycnnig. de- 
 I ceased, was entitled to a lifp estate in the 
 j lands devised by the .'td clause of the will, as 
 tenant by the curtesy. 
 
 ."{(l. That by the terms of the will, Mrs. 
 Catharine Young took only a life estate iu 
 the lands devised to her, with remainder to 
 her issue as iiurchasers. 
 
 235
 
 *570 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 4th. That James M. Young, jr.. took under 
 Hie will, at the death of his mother, a fee 
 simple estate in the lands devised to her. 
 *571 
 
 *Sullivan, for the plaintiff, cited 2 Jarm. 
 on Wills, 24, 25, 178 ; 2 Wms. on Exors., S09, 
 810; Phillips v. Garth, 3 Bro. C. C, 69; Rev. 
 Dom. Rel., 457; Scanlan v. Porter, 1 Bail., 
 427 ; Bedon v. Bedon, 2 Bail., 2:n ; 1 Hill's 
 Ch., 281; 3 Hill, 193; 4 McC, 442; 2 McC. 
 I'h., 171; Hull v. Hull, 2 Strob. Eq., 190; 6 
 Rep., 19; 3 Rich., 289; 3 Strob. Eq., 211; 1 
 McC. Ch., 82 et seq. ; 4 Kent, 27 ; 1 Co. Lit., 
 19 ; 2 Bay, 397 ; 1 McC. Ch., 91 ; 2 McC. Ch., 
 324; Gray v. Givens, Riley Ch., 41. 
 
 Bauskett, contra, cited 6 Cruise, 147; 3 
 Bin. R., 150; Archer's case, 1 Rep., 163; 4 
 Kent Com., 214, 220; Merest v. James, 5 Eng. 
 C. L. R., 156; 1 Salk., 224; 2 Jarm., 354; 
 Lees V. Mosley, 589; Cooper v. Collis, 4 T. R., 
 294; 44 Eng. C. L. R., 330; 4 Bur., 257,9; 
 33 Eng. C. L. R., 373; 32 Eng. C. L. R., 483; 
 Williams v. Ca.ston, 1 Strob., 130; 1 Bin., 
 139 ; 2 Hill Ch., 197. 
 
 Garlington, same side. 
 
 UUNKIX, Ch., delivered the opinion of the 
 Court. 
 
 The question referred to the Court of Er- 
 rors arises out of the third and fourth claus- 
 es of the will of Jonathan Davenport, deceas- 
 ed. The Chancellor ruled that under the de- 
 vise to Catharine Davenport she took a fee 
 conditional in the real estate. On the part 
 of the appellant, it is insisted that she took 
 only a life estate, with a valid remainder to 
 himself as a purchaser under his grandfa- 
 ther's will. The decision is founded on what 
 is familiarly known as the rule in Shelley's 
 case. All the authorities admit that a rigid 
 adherence to the letter of this rule would fre- 
 quently defeat the intention of the testator. 
 "It is a rule of tenure, which is not only 
 independent of, but generally operates to sub- 
 vert, the intention." It must not, therefore, 
 be understood, says Mr. Jarman, that even 
 the technical expression, "heirs of the body," 
 is "incapable of control or explanation by the 
 effect of superadded expressions, clearly 
 demonstrating that the testator used those 
 words in some other than their ordinary ac- 
 ceptation, and as descriptive of another class 
 of objects"— (2 Jarm. on Wills, 300.) Al- 
 though a difference of opinion exists among 
 Judges as to the word issue, yet, it seems 
 
 *572 
 
 now settled, that un*less restricted by the 
 context, this expression cannot be satisfied by 
 applying it to descendants at a particular 
 l)eri()d. But if, from superadded expressions, 
 or from the context, or from other pai-ts of 
 the will, it is manifest that the testator used 
 the term as synonymous with "children," or 
 intended to describe a class of persons to take 
 
 236 
 
 at a particular time, issue will be construed 
 as a word of purchase, and not of limitation. 
 And this rule is equally applicaljle to every 
 other expression used as synonymous with 
 heirs of the body. Whenever the words 
 "heirs of the body" would be explained to 
 mean .some other class of persons, the same 
 construction is given to the synonyme, and 
 the rule in Shelley's case does not apply. — 
 (2 Jarm. 281.) It must be conceded that, in 
 the application of these rules, the cases can- 
 not be reconciled. There seems to have pre- 
 vailed an unceasing conflict between the obli- 
 gation to observe a technical rule and a solic- 
 itude not to defeat the obvious intention of 
 the testator. In England, this struggle has 
 been so manifest, and the discrepancy in the 
 decisions so perplexing, that a special Act 
 of Parliament has been found necessary, (1 
 Vic. c. 26, s. 29,) which restricts and defines 
 the construction to be given to words in a 
 will importing a failure of issue. But,\ 
 prior to that Act, if it could be gathered 
 from the will that the testator did not con- 
 template an indefinite succession of issue, but 
 a class of persons to take at a particular 
 time, this manifest intention was I'espected 
 and carried into effect. It was said, in argu- 
 ment, that the will of Davenport was pre- 
 pared by a professional gentleman of sagacity 
 and long experience, whose name appears as 
 a witness to the instrument. Be that as 
 it may, if the draughtsman had not before 
 him, he clearly had in his mind, the Act of 
 1791; which declares the mode of distribu- 
 tion of an intestate's estate at the time of his 
 death. In the various clauses of the will, 
 the terms issue, children, and heirs, repeat- 
 edly occur. W'hen the word heirs is used, it 
 is obviously intended only to express the am- 
 plitude of the estate, as in the devise to his 
 sons "and their heirs forever." — In the 
 clause under review, the devise is to his 
 daughter, Catharine, "for and during the 
 
 *573 
 
 term of her natural life ; and, at her *death, 
 I give, devise, and bequeath the same, ab- 
 solutely and forever, to" — whom? Not to 
 her child or children, for she might have 
 none, but to her children, grand-children, or 
 great-grand-children, as the case might be; 
 or, using the comprehen.sive and familiar 
 terms of the statute, "to her lineal descend- 
 ants." But, perhaps she might leave none of 
 these ; and the testator proceeds to provide, 
 as, in such case, the statute provides, for dis- 
 tribution among collaterals, where the intes- 
 tate leaves no lineal descendant. "And in 
 case," says he, "she should die without lineal 
 descendants, (one or more,) living at the time 
 of her death, then it is my will that the whole 
 of said real estate revert to my estate and be 
 disposed of as hereinafter directed." 
 
 The statute declared that on the death of 
 an intestate, leaving only brothers and sis- 
 ters, the estate should be distributable equal-
 
 M'LURE V. YOUXO 
 
 *575 
 
 ly jiiiii>ii;.'st tlu'iii. This was not quite in 
 accordaiKt' wilh the testiitui's views. His 
 (lau^-'littT liad two hrothers and tliree sisters, 
 who, in tile contingency ciniteniphited. would 
 be entitled to her estate under the statute. 
 But there were two of the sisters wiioni the 
 testator desired not to partake, as he had 
 already, in his life time, amply provided for 
 them, or, (to use his own expressions,) he had 
 done so '•accordinji to ids own intentions and 
 hij! own notions, and I am, (says he,) or at 
 least, I think I am. the liest judu'e in the 
 matter." lie tluMffore directs that, in such 
 event, "the jiroperly lic(|ueatiied to my daufjli- 
 ter, (Catharine,) shall he equally divided he- 
 tween my ciuldren. .lames M. l)avenpt»rt, 
 John <J. Davenport, and Aimy Hill: and I 
 give, he<iueath, and devise the same to my 
 said three children and their heirs forever, 
 share and share alike;" tiie testator therehy 
 modifying' the provisions of the statute, and 
 excludin;: his other two daufihters, Maria 
 Louisa McLnre and Elizaheth (J. Kudd. Is 
 Iherc any rule or decision which demands the 
 deslruf.tion of this .sciieme. and a sacrifice of 
 the m:inif(>st purpose of this testator? Giv- 
 ing to the terms, "lineal descendants." exact- 
 ly the nieanin;; of "issue." are there not 
 words restraininj; tlie meanini: to issue liv- 
 ing at tlie death V It is argued that the con- 
 struction of this devise is concluded by 
 
 *574 
 Whitworth v. Stuckey, (1 Rich. E<i. *404.) 
 ("eitainly that case goes as far, in deference 
 to the decisions in Westminster Hall, as the 
 most tenacious could desire. — And it is some- 
 what remarkable, as is elsewhere noticed, 
 that the reason for adhering to the technical 
 construclion in devises of real estate in the 
 CVjurts of England, not oidy does not exist in 
 South Carolina, but the contrary. Admitting, 
 as the English authorities do, that a more 
 liberal rule prevails in be<piests of person- 
 alty, they justify the distinction on the 
 ground that, by construing the words to 
 import a general failure of issue, it would, 
 in personalty, necessarily render void the 
 gift over, which is to take eflect on such con- 
 tingency; but that this construction, in de- 
 vises of real estate, would only have the ef- 
 fect of creating an estate tail, on which a 
 remainder may lie lindted. — {2 Jarm. .'iOli.) 
 Hut in South Carolina this construction 
 creates a fee conditional, upon which, accord- 
 ing to our decisions, a remainder cannot be 
 limited; and the disinclination to adoi)t such 
 construction should equally exist in devi.ses 
 «»f leal estate as in bequests of personalty, 
 lint tlip terms of this devise are not the same 
 with those in Wiiitworth v. Stuckey. and other 
 words arc here superadded, evincing the in- 
 tention of the testator, whicii are wanting in 
 that devise. Language of the strictest tech- 
 nical iiniMirt, as heirs of the body, will not 
 control the c<instruction if the intention he 
 clearly nianifesti'd to describe therehy a 
 class of persons to take at a particular pe- 
 
 riod. In such case the intention will prevail. 
 Tile rule only reiiuires, says Mr. Jaruian, a 
 <lear indu-ation of intention to that effect. 
 And so, in Uyan v. Cowley, (Lloyd iS: (lould, 
 10,) Lord Chancellor Sugden says of the term 
 issue, it may he employed as a word of liuii- 
 tation, or of purchase, and if, by the context, 
 the testator shows that it is used as synony- 
 mous with child or children, he translates 
 his own language, and the Court gives effect 
 to his declared menning. Using technical 
 expressions, a party is i)resumed to use them 
 in a techni<-al sen.se, because every man is 
 lircsumed to know the law. It has been 
 already remarked, that the u.se of the term 
 "lineal descendants," indicated that the testa- 
 tor probably lnokeil to the scheme of the stat- 
 
 *575 
 ute which adoiits tins iie<u*liar phrase in 
 liroviiling for the tinal distribution of an in- 
 testate's estate at the period of his death. 
 Hut the testator had borrowed other expres- 
 sions from the .same statute, more familiarly 
 known, perhaps, than any other in the stat- 
 ute hook. The tirst canon of this statute 
 provides for the distribution of tiie estate 
 between the widow and children, if more- 
 than one; but if only one, the remainder of 
 the e.state shall be vested in that one, abso- 
 lutely forever. Then, in the next canon, the 
 lineal descendants of the intestate shall rep- 
 resent their respective parents, and be enti- 
 tled, &c. The next provides for the event 
 that the intestate shall not leave "a child 
 or other lineal descendant": It is hardly nec- 
 essary to say that the statute confers an 
 estate in fee simple, or, in its own prhase, 
 "absolutely forever." Each canon vests the 
 estate in the persons who, at the death of 
 the intestate, shall answer the destription. 
 If the testator had devised the estate to his 
 daughter, for and during the term of her 
 natural life, and at her deatli. to such per- 
 sons, absolutely and forever, as would at that 
 time, had it been her own property, be enti- 
 tled to take her e.state according to the stat- 
 ute of distributions, it would be ditticult to 
 entertain a doubt as to tiie meaning of the 
 testator, and scarcely questionable that the 
 persons thus (lecril-)ed would take as purchas- 
 ers. They might be the lineal descendants of 
 bis daughter, or her ancestors, or her col- 
 lateral relations, or even her husband. They 
 would, nevertheless, according to our deci- 
 sions, be her heirs. Hut the testator clearly 
 manifests that no indelinite succession was 
 contemplated, and that he merely purposed 
 to describe a class of persons, who, at the 
 death of his daughter, should take absolutely 
 the estate which he had given to her for life. 
 He ha.s, in the will before us, only varied the 
 language to meet his purpose. He declares, 
 in case his daugiiter should die without lineal 
 descendant.s, one or more, living at the time 
 of her death, then, he desires the estate to 
 revert to his estate, and to be disposed of in 
 a different manner than that prescrihed by 
 
 237
 
 *575 
 
 3 RICHARDSON'S EQUITY REPORTS 
 
 the statute in such event. The testator, 
 therefore, adopts the language of the statute 
 and with the meaning intended by the stat- 
 ute, provided, at the death of his daughter, 
 
 *576 
 
 there *were living any lineal descendants, 
 (one or more.) By "lineal descendants," the 
 statute meant child, grand-child, great-grand- 
 child, &c. ; the testator meant the same. 
 
 But, as I have remarked, there are other 
 expressions in this will which do not appear 
 in Whitworth v. Stuckey, and which have 
 received judicial construction, as limiting 
 tne general terms of this devise. After giv- 
 ing a life estate to his daughter, the testator 
 provides, as follows — "after her death, I 
 give, bequeath and devise the same, absolute- 
 ly and forever, to her lineal descendants." 
 These are the expressions used in the first 
 canon of the statute of distributions. 
 
 The effect of these words, as declaratory 
 of the intention of the testator, came under 
 the consideration of this Court in Myers v. 
 Anderson, (1 Strob. Eq. 344 [47 Am. Dec. 
 537]). Although that was a case of person- 
 alty, no such distinction is adverted to, and 
 the language of the Court seems too distinct, 
 general and emphatic, to admit of any such 
 restricted interpretation. In that will the 
 words were, (after the gift of a life estate to 
 Mary Brown and Margaret Brooks,) "after 
 the death of the said Mary Kiown and Mar- 
 garet Brooks, to be the absolute property of 
 the issue of their bodies, forever." "If oblig- 
 ed," says the Chancellor in the circuit decree, 
 "by the rules of law to extend, in perpetuity, 
 the interests of these legatees which is ex- 
 pressly given for life, and to declare that the 
 interest which is given to their issue, ex- 
 pressly 'to be their absolute property,' is no 
 interest at all, — that the absolute property 
 is not in the issue to whom it is given, but 
 in the mother to whom it is not given, but, 
 on the contrary, from whom it is expressly 
 withheld: if I am obliged by the rule in 
 Shelley's case to do this, I shall feel that I 
 am sacrificing tiie intention of the testator, 
 as to which there can be no mistake." The 
 Chancellor "conformed his decree to the 
 manifest intention of the testator, and declar- 
 ed that Mary Brown and Margaret Brooks 
 took only a life estate, and that upon their 
 deatlis, respectively, their issue took as pur- 
 chasers." In attirnihig this decree, the Court 
 *577 
 
 of Appeals say. — "all the au*thorities agree 
 that, if the limitation be to the heirs of the 
 body, or issue, and to their heirs, this con- 
 stitutes them purchasers: as it shews an in- 
 tention to give tiiem an estate, not inherit- 
 able from the first taker, but an original 
 estate inheritable from themsehes as a new 
 stock of descent. The authorities also agree 
 that, if the estate limited to the heirs of the 
 body, or issue, L.e of a (luality, or be given 
 to be enjoyed in a way, incompatible with 
 
 238 
 
 the idea that they are to hold it in indefinite 
 succession (as if it be given to them as ten- 
 ants in common, or to be equally divided 
 between them).; — this takes it out of the rule 
 in Shelley's case; and the immediate heirs 
 or issue take as purchasers. It appears to 
 the Court that the testator in this case, by 
 the gift to the issue, not only of the property, 
 or slaves, but of the absolute property in 
 them, (a term importing the quantity of inter- 
 est intended to be given,) has as effectually 
 glA'en them the fee, (so to speak) as if the be- 
 quest had been to the issue and their heirs; 
 and that the gift of the absolute property, or 
 fee, rebuts the idea that he intended it to go 
 in an indefinite succession." 
 
 This doctrine met the approbation of the 
 whole Court, among whom was Chancellor 
 Harper, who had himself decided Whitworth 
 V. Stuckey, and who, in this decision, saw 
 notliing inconsistent with it. The principles, 
 on which the distinction was placed, are well 
 estallished principles in relation to real 
 estates, and constitute well recognized ex- 
 ceptions to the ride in Shelley's case. The 
 language of this will is, if possible, more 
 emphatic. It is not merely to be "their abso- 
 lute -property," but it is given, in the words 
 of the statute, to them absolutely and for- 
 ever. This Court is of opinion, in the terms 
 of Myers v. Anderson, that this is equivalent 
 to a devise to them and their heirs, that the 
 daughter of the testator took only a life 
 estate, and that the defendant, the only child 
 of his deceased mother, was a purchaser un- 
 der the will of his grand-father, and that it 
 should have been so declared. 
 
 O'NEALL, FROST, WITHERS and WHIT- 
 NER, J J. and WARDLAW, Ch. concurred. 
 
 *578 
 
 *The case ha\"ing been returned to the 
 Equity Court of Appeals, in that Court the 
 following judgment was pronounced. 
 
 JOHNSTON, Ch. The Court of Errors 
 having determined that the defendant took 
 the real estate covered by the 3d clause 
 of testator's will, as purchaser, upon the 
 death of his mother : and their decision to 
 that effect having been returned to this 
 Court ; it is ordered that the same be deemed 
 the judgment of this Court upon that point; 
 and that the account which has been ordered 
 be taken with that modification. 
 
 This Court, proceeding to deliver its judg- 
 ment upon the residue of the case, concurs 
 with the Chancellor in so much of his decree 
 as relates to the note given to Stevens. 
 
 It, also, concurs with him in his decree 
 relating to the personal estate of the testa- 
 tor, except as to so nmch thereof as is cover- 
 ed by the 5th clause of his will. 
 
 In the 4th clause the direct limitation is 
 to Catharine and her issue. The limitatiou
 
 M'LURE V. YOUNG 
 
 "bin 
 
 over, in tbc ialtcr part of that clause, has 
 iiffii itioiK'ily iH'ld sufticit'iit to convert the 
 issue into purchasers. 
 
 Hut in the oth elause issue are not men- 
 tioned in th«' direct ;,'ift. That is made to 
 Catharine alone; and the limitation over 
 (which is found in ti)e latter part of the 
 fourth clause) cannot have the effect to vest 
 any thin;^ in the issue, unless liy implication; 
 which is expressly contrary to Carr v. I'ortcr, 
 (1 McC. Vai m. This difference iK'tween tiie 
 4th and r>th clauses was overlooked hy tiie 
 Chancellor, from the fact that only the 4th 
 clause was arjiued, and that very imperfect- 
 ly. Our opinion is that Catharine took an 
 
 ahsolute interest in the personalty given by 
 tile nth clause: and that the same vested in 
 her husliand jure niaiiti ; and whatever of 
 it remained at his death, was i)art of his 
 estate. 
 
 It is ordered that the decree he moditied 
 as indicated in ♦^his judgment and in that of 
 the Court of Errors. 
 
 IMXKIX and DARGAN, CC. concurred. 
 
 WAUni.AW. ("h. was not present at the 
 hearing in this Court. 
 Decref modilied. 
 
 239 
 
 [End of Vollmk 3 Ricu. Eq.]
 
 REPORTS 
 
 OF 
 
 CASES IN EOUIT\ 
 
 / 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS AND COURT OP PRRORS 
 OF SOUTFI CAROLINA 
 
 VOLUME IV 
 
 FROM NOVEMHER, 1851, TO MAY, 1S52, BOTH INCLUSIVE 
 
 By J. S. G. RICHARDSON 
 
 STATE REPORTER 
 
 COLUMHIA, S. V. 
 
 rU INTEL) BY R. W. <;ir.liES 
 
 lsr),-{ 
 
 ANNOTATED EDITION 
 
 ST. PAUL 
 
 WEST PUBLISHING CO. 
 
 11)17
 
 CHANCELLORS 
 
 DURING THE PERIOD COMPRISED IN THIS 
 VOLUME 
 
 Hon. job JOHNSTON 
 " BEN J. F. DUN KIN 
 " GEO. \V. DARGAN 
 " F. H. WARDLAW 
 
 4 Rich.Eq. (iii)
 
 TABLE OF CASES REPORTED 
 
 Atchesou V. Robertson . 
 
 Page 
 39 Lowiy 
 
 Baker v. Lafitte 392 
 
 Ballard v. ^IcKenua 358 
 
 Boggs V. Adgcr -IDS 
 
 Bomar v. Mullins 80 
 
 Boulware v. Harrison 317 
 
 Brown v. Postell 71 
 
 Buist V. Dawes, note 415 
 
 Buist V. I )awes 421 
 
 Buist V. Dawes 496 
 
 Bnsby v. Bjrd 9 
 
 Campbell v. Briggs 370 
 
 Chisolm V. Cbisolm 266 
 
 Crenshaw v. Crenshaw 14 
 
 Crim V. Knotts 340 
 
 Cunningham v. Shannon 135 
 
 Dennis v. Dennis 307 
 
 Douglass V. Brice 322 
 
 Evans v. P^vaus. 
 
 334 
 
 Foster v. Hunter 16 
 
 Foster v. Kerr 390 
 
 (ieddes, Ex parte 301 
 
 < Jlenn v. Caldwell 168 
 
 (irlover V. Harris 25 
 
 Hay V. Hay 378 
 
 Heath v. Bishop 46 
 
 Hicks V. Pegues 413 
 
 Higginbottom v. Peyton 314 
 
 Keitt V. Andrews. 
 
 349 
 
 Lawton V. Hunt 233 
 
 Long V. Cason 60 
 
 V. O'Bry; 
 
 262 
 
 AI( < 'all V. McCall 447 
 
 McMullen v. Cathcart 117 
 
 McQueen v. Fletcher ir)2 
 
 Maybin v. Kirby lo.") 
 
 Meek v. Richardson 88 
 
 Miller v. Anderson 1 
 
 Moover v. Andrews. 349 
 
 Norton, Ex parte, note 215 
 
 Norton V. Gillison's Legatees 213 
 
 O'Neall V. Boozer 22 
 
 Pettus V. Clawson 92 
 
 Pettus V. Smith 197 
 
 Raines v. Adams 399 
 
 Raines v. Woodward 399 
 
 Rivers v. Fripp 276 
 
 Rose V. Drayton 260 
 
 Smith V. Pettus 197 
 
 South Carolina R. Co. v. .Tones 4.")9 
 
 Telfair v. Howe 254 
 
 Thomson v. Peyton 314 
 
 Thorne v. Fordham 222 
 
 Verdier v. Foster 227 
 
 Williman v. Holmes 475 
 
 Yarborough v. Bank of (Georgia 462 
 
 Zimmerman v. Harmon 165 
 
 Zimmerman v. Wolfe 329 
 
 4 Ricn.Eq. 
 
 (iv>t
 
 CASES IN EQUITY 
 
 AKGIEI) AND nKTKKMINKIl IX TIIK 
 
 COURT OF APPEALS 
 
 AT COI.UMBIA, SOUTH CAROLINA— NOVEMBER AND 
 DECEMBER TERM, 1851. 
 
 ClIAXCKLT.ORS PrKSEN'T. 
 
 IIo\. .TOR .TOIIX.STON, 
 " B. F. DTXKIX. 
 " G. W. I)AK(JAX, 
 " F. II. WARD LAW. 
 
 4 Rich. Eq. *l 
 •BENJAMIX MILLKU and Otli.rs v. THOM- 
 AS R. AXDERSOX and Others. 
 (Columbia. Xov. and Dec. Term, 1851.) 
 
 [Slaves <£=>7.1 
 
 Tliere cannot be a valid jiift, by parol, of a 
 slave, to take eflfect at the donor's death— al- 
 though the form of an actual delivery be gone 
 through with. 
 
 [Ed. Xote. — For other case.s, see Slaves4 Cent. 
 Dig. § 28; Dec. Dig. <®=>7.] 
 
 [Slaves <©=T.] 
 
 A father intending to make a gift, to take 
 effect at his death, of a negro to his infant child, 
 put in the presence of witnesses, the negro's 
 hand into that of the child, and said, tlie negro 
 wa.s to be the child's at his. the fatiier's death: 
 the father afterwards spoke of and recognized 
 the gift, but he retained possession of the negro 
 until his death:— i/cW, that there was no valid 
 gift. 
 
 [Ed. Note.— Cited in Busby v. Byrd, 4 Rich. 
 Eq. 13. 
 
 For other cases, see Slaves, Cent. Dig. SS 
 20-29; Dec. Dig. .©=7.] 
 
 [Oifts <©=>2n.i 
 
 Scmble. that, if the donor intends to part 
 with tlie whole title at tlie time of tlie delivery, 
 merely retaining possession for the benefit of 
 the donee, the gift is valid. 
 
 [Ed. Xote.— For other cases, see Gifts, Cent. 
 Dig. § 40; Dec. Dig. <S=2."..| 
 
 Before John.ston, Ch., at Kdgctield, June, 
 1851. 
 
 Johnston, Ch. This bill, liled 22d April, 
 1850, is for an account and scttleuient of the 
 
 *2 
 estate of the late James Miller, who *died in- 
 
 te.'^tate, 29tli March, 1847. He had been twice 
 married, but both of his wives pre-deceased 
 him — each of them leaving children. 
 
 By the first wife, who died 17tli January, 
 1824, he had three children— Edmund, the 
 oldest, who was born in 1819. and was about 
 five years of age at his mother's death, and 
 Mary, who was about two years, and Emily, 
 who was about four years, youn.ger. 
 
 Edmund married and subsequently died in 
 1845, during his father's life, leaving two 
 children, named in the pleadings. Mary al- 
 so married in her father's life-time, having 
 become the wife of her co-defendant, Thos. 
 R. And(>rson, in the year ISoG : she is still 
 alive. Emily married also during her fa- 
 ther's life, but pre-deceased him, leaving dis- 
 tributees, who are parties to the suit. 
 
 The intestate, by the second wife, had five 
 children, all of whom (or the representatives 
 and distributees of such of them as are 
 dead) are parties to this proceeding. The 
 only question which I am called upon to de- 
 termine, relates to a gift of three slaves, 
 which James Miller, the intestate, is alleged 
 to have hade to Edmund, Mary and Emily, 
 the three children of the first marriage, im- 
 mediately upon the death of their mother. 
 These slaves, with the subsequent increase, 
 remained in the donor's po.s.session from the 
 (late of the alleged gift to the time of his 
 death ; and the question is, whether they 
 are parcel of his estate, or are to be regard- 
 
 ®=3For other cases see same topic aud KEY-NUMBER in all Key-Numbered Digests and Indexes 
 4Ricu.Eq.— 1
 
 *2 
 
 4 RICHARDSON'S EQUITY RErORTS 
 
 ed (excluding, of course, their increase.) as 
 advancements to the donees. 
 
 The defendant, Anderson, became the ad- 
 ministrator of the intestate, and it appears 
 that he produced the slaves in question to 
 the appraisers of the estate ; and this cir- 
 cumstance is relied on as evidence against 
 the gift of them by the intestate. But I 
 think this matter is sufficiently explained 
 by the evidence, and that no inference, un- 
 favorable to the donation, is to be drawn 
 from it. The question must turn entirely up- 
 on the testimony in relation to the gift, and 
 the explanation which the conduct of the 
 donor affords, as to his intention in making 
 it. 
 
 Joseph Noble was present when the dona- 
 
 tion was made, and was *produced, on behalf 
 of the donees, to state the circumstances. 
 He says, that on the morning after the moth- 
 er of Edmund, Mary and Emily was buried, 
 their father, in the presence of witness, wit- 
 ness's mother and sister, and also in the pres- 
 ence of his own mother and one Hatcher, 
 called up three little negroes. Bob, (about the 
 size of Edmund,) Sue, (about the size of 
 Mary.) and Elvira, (about the size of Emily,) 
 and putting Bob's hand into that of Ed- 
 mund, Sue's into that of Mary, and Elvira's 
 into that of Emily, made the gift, saying 
 the negroes were to be theirs (the children's) 
 at his own death, and that what he did was 
 done in compliance with his wife's death-bed 
 re<iuest. 
 
 The depositions of George Tillman were 
 also read on behalf of the donees. He was 
 the brother of the first Mrs. Miller, the moth- 
 er of the donees, and though not present at 
 the gift, the intestate told him of it a few 
 days after it was made. No doubt the con- 
 versation related to the precise facts spoken 
 of by Noble. 
 
 He says, that a few days after his sister's 
 death, he and his mother, on their way to 
 the intestate's house, met him, and he then 
 ;stated to them, that, in obedience to his de- 
 ceased wife's request, in the- presence of 
 "Benjamin Hatcher and Nancy Noble, he 
 had given Bob to his son Edmund, a negro 
 ;arl Sue to Mary, and a negro girl Elvira 
 to Emily; and that he had given and deliv- 
 ered the hands of those negroes into the 
 hands of his children above named." 
 
 This witness also testifies to another con- 
 versation which he had with the intestate, 
 in August, 1846, in witness's piazza, while 
 eating peaches. He was giving vent to his 
 grief, says the witness, at his being bereaved 
 of his children, Edmund and Emily — ^and he 
 spoke of his endeavors to provide for them — 
 and told how he had bought, or furnished 
 the means of buying, several negroes for Mr. 
 Anderson — and for Edmund, he had bought 
 a family of negroes at Capt. Wever's sale-^ 
 and to John Rainsford, (who had married 
 Emily,) he had given about $2,000, in notes 
 
 2 
 
 — and then spoke of the reason of his not 
 having given possession, which was, that he 
 had no more negroes than he wanted, and 
 
 that he disliked separating his *faniilies of 
 negroes and substituting others or strange 
 negroes in their stead, for negroes were 
 troublesome at best, and that it was time 
 enough for them to have them at his death, 
 when he was dead and gone. This was some 
 seven or eight months before his death. 
 He remarked, "it might be another Scott 
 case, for he had given the negroes in the 
 same way that he understood Mr. John Gray 
 gave a negro girl to a daughter, who married 
 a gentleman by the name of Scott: by de- 
 livering the negroes' hands into the chil- 
 dren's hands." 
 
 It appears, that after Edmund's marriage, 
 he went to a plantation of the intestate, on 
 Horn's creek, where he superintended as 
 overseer— Bob being among the hands there. 
 When he left that place and removed to an- 
 other plantation of his father's, called Pov- 
 erty Hill, Bob still continued as before, par- 
 cel of the Horn's creek gang. It also ap- 
 pears, that the intestate administered on Ed- 
 mund's estate, but did not include Bob in 
 the inventory. 
 
 In relation to Sue, the intestate also re- 
 tained possession of her until his death, not- 
 withstanding Mary's marriage and settling 
 off in 1836, ten years before he died. The 
 only additional circumstance respecting this 
 slave and her issue, (for she had several 
 children,) was a conversation related by the 
 witness. Walker. This witness says, that 
 after Mary's marriage, he rode up one morn- 
 ing to the intestate's, when he was whipping 
 Sue, and, by way of explanation, he stated 
 that Sue behaved very badly; that when 
 Mary went to herself, he had given Sue to 
 her, but she was so mean that Mary would 
 not have her, and he had been obliged to buy 
 another to put in her place. 
 
 As to Emily, there is nothing to be added 
 to what has been stated. Though she mar- 
 ried and settled off, Elvira, who is supposed 
 to have been given to her, still remained at 
 her father's. 
 
 I have no doubt whatever of the formal 
 delivery of the slaves to the children, in 
 the manner spoken of by Noble, and I have 
 as little doubt that the intestate's intention 
 was to vest them with a title in the slaves. 
 
 I do not think it necessary to distinguish 
 
 *5 
 
 between the testimony *of Tillman and No- 
 ble. Though the former speaks of declai-a- 
 tions of the intestate, from which we might 
 generally infer a perfect gift, yet, as it is 
 evident that in those declarations he referred 
 to what he had done when Noble was pres- 
 ent, it would be a pei'version of principle to 
 extend the declarations, by construction, be- 
 yond the specific acts he then performed —
 
 MILLER V. ANDERSON 
 
 and these we have from Noble, who witnessed 
 them, and they speak for themst-lves. 
 
 I have no doubt, as I liave said, that 
 there was a formal tradition of the proper- 
 ty, and that the intention was to iiass an 
 interest in it to them. I5iit the (pu'stion is, 
 whether the intestate intended to i»ass the 
 title to them presentl.v. rcscrviiii; the cu.s- 
 tody in him.self, for their benefit and as 
 their bailee, or to pass a title to them in 
 present!, to take effect at his death, in- 
 terposiuj:; in the mean time, a title in him- 
 self, for his own life, and for his own ben- 
 efit. 
 
 If his intention was of the former de- 
 scription. I am of opinion there was a good 
 and effectual gift, and having taken po.s- 
 session under his children, the statute, 
 which is relied on for destroying the d<tnees' 
 title, could not avail for that purpose: — 
 such a possession would not be adverse. 
 
 If. however, the intestate's intention was 
 to reserve a life estate in himself, and to 
 make a i»resent formal delivciy by way of 
 investing the donees with the remainder ex- 
 [lectant on his death, I am of opiiuon that 
 this could not be done by parol : antl that, 
 whatever forms were adopted, they were in- 
 effectual for such a purpose. 
 
 In the transmission of title i.n personal 
 jiroperty, the essential thing is delivery, and 
 the essence of that is not the form adopted, 
 but the power which the formal act com- 
 nnniieates. There must pass from the 
 donor or grantor to the other party, an ir- 
 revocable control or dominion, to reside 
 in the latter from that time forward, ir- 
 respective of any change in the intention of 
 the former. 
 
 Where a party delivers a deed or instru- 
 ment, which is in its nature irrevocalile. and 
 especially when it is founded upon proper 
 consideration, he puts in the hands of the 
 grantee a power of control and dominion 
 over the property covered by the deed, 
 
 *6 
 which *that party may exercise according 
 to the tei'ms of the deed, whether the gran- 
 tor may in future time be willing or unwill- 
 ing. 
 
 I have endeavored to explain this, in my 
 opiiuon, in Jaggers v. Estes. (;> 8trol). E<i. 
 ."'.4,) to which I refer. An interest in per- 
 sonalty, to lie enjoyed or enforced in futuro, 
 may therefore be conferred l>y deed ; and it 
 is because the pow«>r to control the proi)er- 
 ty is carried in the deed itself. That pow- 
 er of control is a delivery, and there is no 
 dondnlon where it is wanting; for deliver}* 
 is neither more nor less than the transfer 
 of dominion. 
 
 But a future donunion cannot be trans- 
 ferred by parol. In the case of a deed, 
 there is always extant in the deed itself, 
 and beyond the control of the grantor, a 
 power of dominion in o|)position tt). and in 
 despite of, the control resulting to the gran- 
 
 tor from his retention of the possession of 
 the property. But where there is no deed, 
 the only means of imi'arting a dominion 
 over personal property is by a delivery of 
 it, with an intent to confer the dominion. 
 A formal delivery, when the control of the 
 property is not intended to go with the act, 
 Is a mere form, and no delivery. It is utter- 
 ly ineffectual, and the intention to make a 
 substantial delivery, is rebutted by the re- 
 tention of the property, under a claim of 
 title in the deliverer. He intends to pass, 
 at the time, no control over the proi)erty. 
 His intention is. that that control shall arisi' 
 at a future time, and not presently ; and 
 the formal delivery is in anticipation of 
 that future time at which the control is 
 intended to be vested, and when alone a 
 true delivery can be made. 
 
 In all cases where a right is intended to 
 pass in personal property, unless there be 
 a deed, or .some irrevocable instrument, the 
 property must be delivered with an intent 
 to confer a present control, and so strong is 
 this principle, that in cases donatio mortis 
 causa, where the gift is intended to be con- 
 ditional merel}'. and to be defeated by the 
 recovery of the donor, the proiierty must 
 be delivered, or what is the .same thing, 
 put within the power of the donee. (Ward 
 V. Turner, 2 Ves. Sen. 4.'J1). 
 
 Having thus settled in my own nnnd that, 
 *7 
 if it was fntended *that a legal title to the 
 property should remain in the donor for 
 his own life, the gift of the remainder by 
 parol was ineffectual — the question is, 
 whether the evidence establishes a gift of 
 that nature, or whether it establishes a 
 present ti'ansnussion of title to the donees, 
 coupled with a retention of po::session for 
 their benefit, which would amount to a pos- 
 session on their part. 
 
 I think the evidence proves a gift of the 
 former character. 
 
 Hardly any thing could be more explicit 
 than the donor's declaration, at the time of 
 the intended donation, that the property 
 was to be theirs (the donees) at his death. 
 Is it not necessarily implied that it should 
 be or remain his (and not theirs) until that 
 time? 
 
 Then, upon the supposition that the prop- 
 erty belonged to the donees in present!, how 
 are we to account for their pernntting their 
 father to retain pos.-<ession after they came 
 of age or married? How are we to account 
 for the intestate not having included Bob 
 in Edmund's estate? 
 
 Ednnnid died in 1845, and yet we find 
 the intestate si)eaking of the gift to him. 
 in 1S4(). without practically admitting that 
 the rijiht which the gift vested was to take 
 eft'ect until his own death. How are we 
 to reconcile this circumstance without 
 adopting the hypothesis that he retained a 
 title iu himself for life? 
 
 8
 
 *7 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 Again: The fact of the intestate having 
 stated to Walker that he had attempted to 
 give Sue to Mary, upon her marriage, is re- 
 lied on. But this circumstance rather forti- 
 fies the supposition, that he considered the 
 title to be in himself for life, at that time, 
 and that this new gift was made in virtue 
 of that ownership, and not merely in pur- 
 suance of the gift of 1824. 
 
 Again: In the answer of Anderson and 
 wife, it is substantially admitted that the 
 receipt given by them to the intestate, for 
 advancement, did not include Sue. This is 
 not reconcilable witli the supposition, that 
 the title to Sue passed in presenti, (with 
 a power of present control,) in 1824. It is 
 perhaps reconcilable with a gift in remain- 
 der, but, as we have seen, such a gift would 
 be ineffectual. 
 
 *8 
 
 *Again: By way of accounting for the 
 intestate's retention of possession, the tes- 
 timony of Tillman is relied on, that it was 
 inconvenient to him to part from the prop- 
 erty. But this is as well reconcilable with 
 the retention of a life estate as the present 
 parting from the entire title, and rather 
 more so, inasmuch as his expressions seem 
 to imply, that, whether he should retain 
 the possession or part from it, depended on 
 his own option, which infers that the own- 
 ership was in him. And again, when the 
 intestate said, "it was time enough for them 
 (the children) to have them when he was 
 (lead and gone," was this acknowledging that 
 the negroes then belonged to the children? 
 Was it not rather an assertion of right in 
 himself, by which he could, at his pleasure, 
 postpone their enjoyment of the property? 
 
 It is adjudged and decreed, that the 
 slaves. Bob, Elvira and Sue, with their in- 
 crease, as to the two latter, were parcel of 
 the estate of James Miller, at his death, 
 and, as such, chargeable to his administra- 
 tor; that he account for the price at which 
 he sold Elvira; and that the others are sub- 
 ject to partition, for which purpose the par- 
 ties have leave to take out a writ of parti- 
 tion. It is further ordered, that the admin- 
 istrator account before the Commissioner, to 
 whom all matters of account are hereby re- 
 ferred. 
 
 The parties to be at liberty to apply for 
 any other necessary order. The costs to be 
 paid out of the said estate. 
 
 The defendants appealed on the grounds: 
 
 1. That from the evidence in the case 
 there was a valid gift of the negroes in 
 question by the intestate, James INIiller, to 
 his children, Edmund, Mary and Emily. 
 
 2. Because, it is respectfully submitted, 
 that his Honor, the presiding Chancellor, 
 should have ordered an issue at law, at the 
 request of the defendants, to try the ques- 
 tion whether there was a valid gift or not. 
 
 Griffin, Banskett, for appellants. 
 
 Carroll, contra. 
 
 *9 
 
 *PER CURIAM. This Court concurs in 
 the decree of the Chancellor: which is hereby 
 affirmed and the appeal dismissed. 
 
 JOHNSTON, DUNKIN and DARGAX, CC, 
 
 concurring. 
 
 WARDLAW, Ch., having been of counsel, 
 gave no opinion in this case. 
 Appeal dismissed. 
 
 4 Rich. Eq. 9 
 
 LE^IS BI'SBY aud MARY. His Wife, yT' 
 THOMAS B. BYRD aud Others. 
 
 (Columbia. Nov. and Dec. Term, 1851.) 
 
 [Slaves <^=s7.] 
 
 A ijurol gift of a negro to take effect in 
 possessiou at the donor's death, is necessarily 
 void, because there can be no delivery, aud to a 
 parol gift delivery is essential. 
 
 [Ed. Note. — For other cases, see Slaves, Cent. 
 Dig. §§ 20-29; Dec. Dig. <S=7.] 
 
 [Gifts <©=:5ll, 18.] 
 
 To constitute a delivery, it is essential that 
 the deliverer should part with his control over 
 the chattel; and where his iutention is to vest 
 a future interest, though he may go through the 
 form of delivering the chattel, yet, inasmuch as 
 he retains his control over it, there is no de- 
 livery. 
 
 [Ed. Note. — For other cases, see Gifts, Cent. 
 Dig. §§ 9, 31; Dec. Dig. <S=:5ll, 18.] 
 
 Before Johnston, Ch., at Abbeville, June, 
 1851. 
 
 Johnston, Ch. This was a bill filed by Lew- 
 is Busby and Mary, his wife, against Thomas 
 B. Byrd, administrator of the estate of Rhoda 
 Pullam, deceased, the distributees of the said 
 Rhoda and others; claiming the delivery of 
 a negro woman, Leah, and her children, and 
 partition of the same among the four daugh- 
 ters of Lucy Pullam, deceased, viz: Mary, the 
 wife of Lewis Busby, Mahala, the wife of 
 Matthew H. Bryson, Rhoda, the wife of Wm. 
 Sanders, and Eliza, the wife of Thomas B. 
 Brooks. 
 
 James Pullam, the husband of Rhoda Pul- 
 lam, had owned Leah, the negro in contro- 
 versy. At the sale which was made of his 
 
 property after his death, in the year , 
 
 Leah was bought by one Charles B. Foshee, 
 who kept her about one year and then sold 
 her to Rhoda Pullam, who had her in her pos- 
 session from that time until her death, except 
 the period of time during which Lucy Pul- 
 lam had possession of her, and whilst John 
 P. Coleman owned her, of which more will 
 be said hereafter. 
 
 *10 
 
 *Leah and her children, who have now 
 increased to the number of eight, are still 
 in the possession of Thomas B. Byrd, the ad- 
 ministrator of the estate of Rhoda Pullam, 
 
 ®=3For other cases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes
 
 BUSBY V. BYKD 
 
 who dii'd in Juiu'. ISJfi; and he alone of the 
 defendants lias answered. 
 
 Luf-y rnllani was the widow of Benja- 
 min rnllani. who was the nephew of James 
 PulliiiM tlie hiisliand of Klioda Pullam; and 
 the jilaintiffs, for themselves and for the «>th- 
 er three daiii,'hters of Lucy I'ullam. claim, 
 that, in conseiineiice of their relathmsliip 
 to the said Bliuda, slu- liad ;;iven, in h«'r life 
 time, Leah and her child Ally (the only child 
 then liorn) to the plaintiff, Mary, and her sis- 
 ters above named. They allci;*', that iUioda 
 I'ullam, "in or aiiout tiie year o( our Lord 
 one thousand eif,'lit hundred and thirty-live, 
 gave and delivered to your oratrix and her 
 sisters, named aforesaid, who had hut small 
 means, a ne^rro woman, Leah, and her dauirh- 
 ter Ally. Whatever the precise tenns of the 
 said fiift were, your orator and oratrix as- 
 sert there was a substantial and lef,'al ^ift 
 of the said Leah and her said dau;:hter, to the 
 Si.sters of your oratrix with ber.self, and 
 actual delivery of the .said slaves accompa- 
 nied, for some time, by po.ssession." 
 
 The plaintiffs endeavored to show a parol 
 gift from Rlioda rullam; and upon that point 
 offered many of her declarations .statiiif; in 
 various forms, (as the witnesses remendiered 
 themi, that she intended to give, and at other 
 times that she had givt-n, Leah and her chil- 
 dren, or some of them, to Lucy rullam or her 
 daughters. 
 
 I do not regard the gift made out either 
 by these declarations or the temporary pos- 
 ses.sion of the woman, Leah, by the said Lucy 
 Pullam; and I admitted counter declarations 
 of the alleged donor (when subse»iuently in 
 possession,) stating that she had intended to 
 give, but had changed her mind— that she 
 had not given, that she never intended to 
 give Leah or her children, either to Lucy 
 Pullam or her daughters — and that she had 
 made her will, giving Leah to Lucy Pullam 
 and one of her children to each of her daugh- 
 ters, but that she had dt'stroyed it, &c. The 
 testimony was somewhat conflicting, and ap- 
 parently inconsistent, but I think susceptible 
 of reasonable explanation in the view which 
 
 *11 
 
 I have *taken of the case. The evidence is 
 all in writing, either in answer to interroga- 
 tories propounded by the parties or taken by 
 the Commissioner, and is appended to this 
 decree, so that either party may have the fidl 
 benefit of it. 
 
 It will be seen that Lucy Pullam died In 
 August, is;]0, and that Leah and her cliihl 
 Ally had been sent back to lUioda Pullam 
 but a short time before her death. By refer- 
 ring to the testimony, it will also be seen that 
 Leah remained in the possession of Lucy Pul- 
 lam for a period of time less than a year. 
 All the witnesses concurred in this. Some 
 of them say that Leah was with Lucy I^il- 
 1am only a few months. So that there is no 
 clear evidence either of a declaration of 
 
 IChoda Pidlam that she had given Leah, or of 
 Lucy Pullam's possession of her and her child, 
 prior to the sununer of In."'..". Dr. I'alhoun 
 says that "he made a will for Rhoda Pul- 
 lam In the latter part of the .vear l.s;{;j. by 
 which the girl I^-ah and her children were 
 given to L. Pullam, with an injunction, tliat 
 she would give one negro child to each of lu-r 
 daughters, when they married, or came of 
 age, should the woman have so many." This 
 will was not destroyed until the year 1S41, 
 and I am of opinion that all the declarations 
 of Bhoda I'ullam, in relation to the alleged 
 gift of Leah and her <hildr«'n, had reference 
 to this will, then in existence, and the pro- 
 vision which she had made thereby for Lucy 
 I'ullam and her children — that she never 
 meant that she had given up all control over 
 the said slaves, but that she had made that 
 disposition of Leah and her children by will, 
 and that it was her intention that they 
 should go in that way, unless she chose to al- 
 ter and destroy the will, which she still re- 
 tained the right to do, and which afterwards 
 she did actually do, when some of the i)ar- 
 ties had offended her by taking coun.sel to 
 ascertain whether they could hold the ne- 
 groes under the gift. She not only destroyed 
 the will, but de.stroyed it in such a manner, 
 (by '•burning it on her pipe,") as to indicate 
 her strong di.«<approbation of, and contempt 
 for, the conduct of the parties of whom she 
 complained, and her determination to give 
 them nothing. 
 
 This view of the testimony is supported by 
 *12 
 
 the reference to the *deed of gift, said to 
 have been drawn by Dr. Calhoun, when the 
 provision in favor of Lucy Pullam and her 
 children was spoken of: he having drawn no 
 deed of gift but a will, which wik? revocable: 
 and it is also strengthened by the conduct of 
 Lucy I'ullam herself, when, in the presence of 
 Coleman, she returned Leah to Rhoda Pullam, 
 expressing her dissatisfaction with the man- 
 ner in whicn she had taken the negroes, stat- 
 ing that her friends had told her that she was 
 working and raising negroes for other per- 
 sons, that the title to her children was worth 
 nothing, and unless Rhoda Pullam would 
 make a deed of gift, it would be useless for 
 her to keep the negroes any longer. Rhoda 
 Pullam replied, she would make no deeds 
 about it, and if they refused to take her 
 word for it, they might send them home: 
 and in a few days after they were returned. 
 
 I think there is nothing in the circum- 
 stances of this case — either in the relation- 
 ship of the parties, the declarations of Rhoda 
 Pullam. or in the temporary custody, which 
 Lucy Pullam had of these negroes, explain- 
 ed as it is. which would authorize the Court 
 to presume a gift other than that made 
 in the will drawn by Dr. Calhoun, which was 
 revocable, and in fact revoked. 
 
 I am also against the plaintiffs on the
 
 *12 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 statute of limitations. After the return of 
 Leah to Rhoda Pullam, as stated above, Cole- 
 man says, "she never did acknowledge any 
 right except her own." She sent for Ally. 
 Afterwards, in 1839, she sold Leah to Cole- 
 man, who owned her between one and two 
 years, and then sold her back to Rhoda Pul- 
 lam, at an advance of three hundred dollars. 
 When a letter was received from Rhoda Pul- 
 lam, Jr., one of the daughters of Lucy Pul- 
 lam, claiming a negro or money, she declared 
 that "the Pullam girls" had no interest in 
 Leah; which she occasionally repeated down 
 to her death, in June, 1846. 
 
 There is no reason to doubt, (even if there 
 ever had been a gift,) that Rhoda Pullam, and 
 her representative since her death, have had 
 adverse possession of Leah and her children 
 quite long enough to confer title to them ; 
 and there is as little room for doubt that the 
 daughters of Lucy Pullam knew that their 
 
 *13 
 
 mother had re*turned them — that Rhoda Pul- 
 lam had sent for Ally, and that she had 
 changed her mind upon the subject, and held 
 them in her own right and under her own con- 
 trol, and adverse to every other claim, al- 
 though she still intended, until affronted, to 
 give them by her will. 
 
 It is not an answer to the plea of the stat- 
 ute, to say that the gift by its terms was not 
 to take effect until the death of Rhoda Pullam. 
 If there ever was a gift, it was a parol gift, 
 and such gift to take effect in possession at 
 the death of the donor, is void for want of 
 delivery. The formal words of delivery may 
 be pronounced, the ceremony may be per- 
 formed, but it is inconsistent and impossible 
 that there can be a real delivery in such a 
 case: because it is necessary, in order to 
 complete a parol gift, that the property itself 
 should be delivered, and by the very terms of 
 a gift to take effect in futuro, the donor is 
 not to deliver but to retain possession. A de- 
 livery is neither more nor less than the 
 abandonment of control by one party, and 
 the transfer of it to the other: and when the 
 intent is to retain that control, a delivery is 
 impossible. I have stated my opinion on this 
 point in my decree in Jaggers v. Estes, (3 
 Strob. Eq. 34,) and very recently in the case 
 of Miller v. Anderson, [4 Rich. Eq. 1,] which 
 I heard at Edgefield, and content myself with 
 a reference to what I have there said. 
 
 There is another point upon which I think 
 I should be justified in refusing to decree a 
 specific delivery in this case. In no view 
 that can be taken of the testimony, is the 
 evidence of gift so free from doubt and ob- 
 scurity, as to entitle the plaintiffs to insist 
 upon the equity of such a decree: and they 
 should be left to their remedy at law, if there 
 be any. It is ordered that the bill be dis- 
 missed. 
 
 The complainants appealed, on the grounds: 
 
 1. That the evidence established a gift to 
 complainant and her sisters to the slaves 
 mentioned in the pleadings. 
 
 2. That the statute of limitations did not 
 begin to run until Rhoda Pullam's death, and 
 ought not therefore to have been held a bar 
 to complainant's claim. 
 
 *14 
 
 *3. That the suit for the delivery and par- 
 tition of the slaves in controversy, was, in 
 this instance, prosecuted in the proper Court, 
 and that the remedy was not at law. 
 
 4. That there was reasonable proof of the 
 gift of Leah and her children to complainant, 
 Mary, and her sisters — proof of possession 
 under such gift — and of permissive posses- 
 sion by Rhoda Pullam until her death: and 
 that the decree should have been rendered 
 for complainants in accordance with it. 
 
 Thomson, Noble, for appellants. 
 , contra. 
 
 PER CUltlAlM. This Court concurs in the 
 decree of the Chancellor ; and it is ordered 
 that the same be affirmed, and the appeal 
 dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN and 
 WARDLAW, CC, concurring. 
 Appeal dismissed. 
 
 4 Rich. Eq. 14 
 D. M. CRENSHAW v. W. T. CRENSHAW. 
 
 (Columbia. Nov. and Dec. Term, 1851.) 
 
 [Guardian and Ward <s;=:=>o3.] 
 
 A general grant of guardianship of the es- 
 tate authorizes the guardian to receive any es- 
 tate afterwards accruing to the ward. 
 
 [Ed. Note.— Cite(t in Todd v. Davenport, 22 
 S. C. 150. 
 
 For other cases, see Guardian and Ward, 
 Cent. Dig. § 144 ; Dec. Dig. <©=>33.] 
 
 [Guardian and Ward (®=>163.] 
 
 Where the same person unites in himself the 
 characters of administrator and guardian of 
 one of the distributees, and in his returns as 
 guardian charges himself vith the share of the 
 distributee, he is no longer liable to account 
 as administrator to that distributee. 
 
 [Ed. Note.— Cited in Anderson v. Earle, 9 S. 
 C. 464. 
 
 For- other cases, see Guardian and Ward, 
 Cent. Dig. § 540; Dec. Dig. <©=:5l63.] 
 
 [Executors and Administrators <@==>531.] 
 
 [Where an executor, who was also guard- 
 ian, charges himself, as guardian, with a spe- 
 cific legacy to his ward, both he and the sureties 
 on his executor's bond are discharged from lia- 
 bility.] 
 
 [Ed. Note. — For other cases, see Executors 
 and Administrators, Cent. Dig. § 2427; Dec. 
 Dig. <S=»531.] 
 
 Before Wardlaw, Ch. at Union, June, 1851. 
 
 The circuit decree, from which the case 
 will be sufficiently understood, is as follows: 
 
 Wardlaw, Ch. This was an appeal, in be- 
 half of the sureties in the administration 
 bond, from a decree of the Ordinary, that 
 
 ©=3For other cases see same topic and KEY- NUMBER in all Key-Numbered Digests and Indexes
 
 FOSTER V. IILXTER 
 
 m 
 
 W. T. Crenshaw, as adiiiinistratoi- of Jane 
 Cren.sliaw, pay to D. W. Crenshaw, a distrib- 
 utee of the estate, who had cited the ad- 
 
 *15 
 *tuinistrator to acctunit, the sum of $17-.4G, 
 with interest tliert'on from January 1, 1.S47. 
 It ai)peared from tlie rejtort of the Ordi- 
 nary, tliat Jane Crenshaw died intestate in 
 18.'J4, leaving six hrotliers and sisters, of 
 wliom D. M. Crensliaw was one, the distribu- 
 tees of her estate, and tliat administration of 
 her estate was granted to \V. T. Crenshaw; 
 that the administrator made a return to the 
 Ordinary, May 10, iSoG, whicli was the basis 
 of tlie decree; that by i)rt)ceedings in equity, 
 said W. T. Crensliaw was appointed guard- 
 ian of the person and estate of said D. M. 
 Crenshaw ; and that at the date of the ap- 
 pointment, the intestate, Jane, was alive; 
 and the petition and report of the Counnis- 
 sioner in Equity referred to the interest of 
 the ward in tlie estate of his deceased father, 
 James Crenshaw, as the estate of the ward 
 needing guardianship, although by the or- 
 der the guardian was api»ointed in general 
 terms; that the said W. T. Crenshaw, May 
 16, 1S3G, probably after his return to the Or- 
 dinary of tlie same date, made his return, as 
 guardian, to the Commissioner in Equity, in 
 which he charged himself with tlie interest 
 of the ward in the estate of said intestate, 
 Jane. The Ordinary, proceeding apparently 
 iipon the notion that the guardianship was 
 limited to the interest of the ward iu the es- 
 tate of his father, decreed that W. T. Cren- 
 shaw, as administrator, was liable for liis 
 ward's share in the estate of his sister Jane. 
 I am of opinion that the appeal must be 
 sustained. A general grant of guardianship 
 of the estate authorizes the guardian to re- 
 ceive any estate accruing to the ward after 
 the appointment. It is proper, in case the 
 subse(juent acquisition of estate by tlie ward 
 be large, that the fact be brought to the at- 
 tention of the Court, by the otticer of the 
 Court, or by some friend of the ward, so that 
 additional security may be required from the 
 guardian ; but the guardian is appointed to 
 protect the possible as well as the actual in- 
 terests of the ward. His authority cannot 
 be apportioned according to the .security he 
 may have given. The case of Simkins, Ordi- 
 nary, V. Cobb, (2 Bail. GO,) is direct authority 
 that if the administrator of an estate be ap- 
 
 *16 
 pointed guardian of the distribu*tees, enter 
 into bond as guardian, and charge himself 
 in his returns as guardian with the balances 
 in his hands as aflministrator, the adminis- 
 tration bond is discharged. As guardian, he 
 becomes creditor of himself as administrator, 
 and thus uniting the characters of creditor 
 and debtor, the debt upon the administration 
 bond is extinguished. (Johiis(Ui v. Johnson, 
 2 Hill Eq. 2S4 [29 Am. Dec. 72].) 
 
 It is ordered and decreed, that the decree 
 
 of the Ordinary be reversed, and that D. M. 
 Crenshaw pay the costs. 
 
 The i)etitioner ai)i>ealed, on the following 
 grounds : 
 
 1. Iiecau.se the defendant was not a|ipoint- 
 ed guardian of the interest of the petitioner 
 in the estate of Jane Crenshaw: and he. 
 having her estate as administrator, is liable 
 for the same in that character. 
 
 2. Iiecau.se, even if defendant made liim- 
 .self and his sureties, on his guardianship 
 bond, liable for what he received as admin- 
 istrator, it cannot discharge the sureties on 
 the administration bond to the petitioner. 
 
 Dawkins, for appellant. 
 , contra. 
 
 PEK CURIAM. We concur in the Clian- 
 cellor's decree, which is hereby attirmed and 
 the appeal dismissed. 
 
 JOHNSTON, ItlNKlN, DARGAN and 
 WARDLAW, CC, concurring. 
 Decree affirmed. 
 
 4 Rich. Eq. IS 
 
 JAMES H. FOSTEli. A-bnr. of Nancy Davis, 
 
 v. JOHN IIINTER. 
 
 (Columbia. Nov. and Dec. Term, 1S.")1.) 
 
 [Judfimcni <©==>87G.l 
 
 Where the presumption of the satisfaction 
 of a judiiment is nrsred from the lapse of time 
 merely, it is indispensable that the term of 
 twenty years be coini)let;': and even where that 
 is tiie ease, the presunqition is not irrebuttable, 
 but is of such strenirtli that it can be overcome 
 by scarcely any evidence. 
 
 [Ed. Note. — Cited in Myers v. O'llaulou, 12 
 Rich. Eq. 208. 
 
 For other cases, see Judgment. Cent. Dig. §§ 
 I(;4.s-1G.")2 ; Dec. Dig. <S=>87G.] 
 
 [Judijnicnt C=87G.] 
 
 I^apse of time, less than twenty years, and 
 corrolxirating circumstances held sufficient to 
 raise the presumption, that a decree in favor of 
 parties, some of whom were resident in, and 
 some without, the State, was satisfied so far as 
 
 *I7 
 the parties *in tlie State were interested ; but 
 not suHicient to raise the presumption of satis- 
 faction as against the parties resident without 
 the State. 
 
 [Ed. Note. — For other cases, see Judgment, 
 Cent. Dig. § 1648; Dec. Dig. <S=3876.1 
 
 Before Johnston, Ch.. at Abbeville. June, 
 1S51. 
 
 This case will be sutHciently understood 
 from the opinion delivered iu the Court of 
 Appeals. 
 
 Wil.son, for appellant. 
 I'erriu «& McGowen, contra. 
 
 The opiniou of tlie Court was delivered by 
 
 WARDIi.VW, Ch. William Vickory. who 
 died iu 1804, by his will, gave his real and 
 personal estate, with iiiconsuleralile excep- 
 tions, to his daughter Betty, while she re- 
 
 ^=>For other cases see same topic aud KEY-NUMBER in all Key-Numbered Digests and ludeies
 
 *17 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 mained unmarried; and upon her marriage 
 or deatli, he directed tlie whole to be sold and 
 eiiually divided between his daughters, Ruth 
 Hunter and Nancy Davis. Benj. Howard 
 and Andrew McComb were appointed execu- 
 tors by tliis will, and the latter assumed tlie 
 trust. Betty Vickory enjoyed the estate de- 
 vised aad bequeathed to her until her death 
 in 1826. Andrew McComb liad previously 
 died ; and John McComb, his son and admin- 
 istrator, took out letters of administration 
 on the estate of William Vickory, and, on 
 June 9, 1826, sold the estate, real and person- 
 al, for the aggregate sum of $1,312.68%. He 
 returned the sale bill to the Ordinary's ofhce, 
 but made no further returns. He died in 
 1828. Nancy Davis died in 1825, intestate, 
 leaving children and grand children as her 
 next of kin. Slie was residing, at the time 
 of her death, with her sister, Betty Viclvory, 
 and was in indigent circumstances. There 
 is some proof that John McComb, as admin- 
 istrator, settled with several of these chil- 
 dren and grand children, although no re- 
 ceipts are produced. Ruth Hunter seems also 
 to have died before the sale in June, 1826, 
 leaving three children. At tliat sale, John 
 Hunter, son of Ruth, purchased the land 
 of testator for the sum of $413, and he and 
 his sisters, Mary and Elizabeth, purchased 
 chattels to the amount of .$204.06yi. 
 
 John B. Pressley took out letters of ad- 
 *18 
 
 ministration, de bonis non, *on the estate of 
 William Vickory, and made sale of some per- 
 sonalty to the amount of about $80. 
 
 At the sitting of the Court of Equity for 
 Abbeville, in June, 1831, John Hunter, Eliza- 
 beth Hunter, and Mary Hunter, filed their 
 petition, setting forth, the seisin of land, will 
 and death of William Vickory ; the death of 
 Ruth Hunter, leaving the petitioners as her 
 only children and distributees ; the death of 
 Nancy Davis, leaving several children, some 
 of whom resided without the limits of the 
 State ; the sale of the lands by John Mc- 
 Comb, and the purchase of them by John 
 Hunter, and that said John Hunter liad given 
 his notes for $413, due June 9, 1827, which 
 were then unpaid, and that titles for said 
 lands had not been made ; and praying that 
 said sale might be confirmed, and titles for 
 said land executed and delivered to said 
 John Hunter, on his paying the purchase 
 money aforesaid, with interest. John B. 
 Pressley, as solicitor for the representatives 
 of Nancy Davis residing in the State of Il- 
 linois, consented that the prayer of the peti- 
 tion be granted on the terms prayed. On 
 July 2, 1831, Chancellor De Saussure ordered 
 and decreed, that the sale of the lands be 
 confirmed, on the terms prayed, and that the 
 Commissioner of the Court execute titles 
 therefor to the purchaser, unless after per- 
 sonal notice to the parties resident in this 
 State, and publication in a newspaper for 
 
 8 
 
 three months, the parties In interest express 
 dissent to the order. 
 
 Administration of the estate of Nancy Da- 
 vis, at the instance of the distributees in Il- 
 linois, was granted to James H. Foster, on 
 February 15, 1851, and he filed his petition 
 June 2, 1851, praying that the decree of July 
 2, 1831, be revived, and that John Hunter 
 pay the said sum of $413. with interest from 
 June 9, 1827, to the Conunissioner of the 
 Court, for distribution among the distribu- 
 tees of Ruth Hunter and Nancy Davis, or 
 that said John Hunter pay one half of said 
 sum to the petitioner for distribution among 
 the distributees of Nancy Davis. 
 
 The defendant, John Hunter, in his an- 
 swer, states that no money has ever been 
 paid by him to the Commissiouer for this 
 
 *19 
 land, and *that no title has ever been execut- 
 ed by the Conunissioner to him, but he al- 
 leges that the land was bought on some 
 agreement between himself and his sisters, 
 and that their wliole purchases at said sale 
 did not amount to one half of tlie wliole 
 amount of the sales, and that It was the 
 understanding between himself and John INIc- 
 Comb, that lie and his sisteis should have 
 the land in part of their share of the estate 
 of William Vickory. The answer further 
 states the information and belief of defend- 
 ant, that all the children of Nancy Davis 
 have received their shares from John Mc- 
 Comb, except two of her daughters, now in 
 Illinois, Frances Ross and Ruth 'S'ickory ; 
 and insists that the distributees of Nancy 
 Davis have no remedy except against the 
 estate of McComb. Lapse of time and the 
 statute of limitations are relied upon, as 
 if specially pleaded. 
 
 No evidence is offered in support of the 
 answer, as to the allegations of an agreement 
 about tiie purchase of the lands between 
 the defendant and his sisters, nor of the 
 understanding between defendant and John 
 McComb, tliat tlie land was to be taken in 
 payment of the interest of defendant and his 
 sisters in William Vickory's estate. Pretty 
 strong evidence, however, is offered, that 
 John McComb settled with the distributees 
 of Nancy Davis resident witliia this State. 
 
 The Chancellor on the circuit decreed, that 
 the decree of July 2, 1831, be revived, and 
 that John Hunter pay to the Commissioner 
 of the Court one half of the purchase money 
 of the land, with interest — that the distrib- 
 utees of Nancy Davis be made parties to the 
 proceeding — and that the Conmiissioner take 
 an account of any portion of the proceeds of 
 the sale of the land which may have been 
 paid to these distributees. 
 
 From this decree the defendant appeals, 
 insisting upon the lapse of time, and corrobo- 
 rating circumstances, as raising the presump- 
 tion of payment, and disputing the right of 
 the petitioner, as administrator, to proceed in 
 the matter of controversy.
 
 FOSTER V. HUNTER 
 
 •22 
 
 The right of the petitioner, as luhuiiiistra- 1 
 tor of Nancy Davis, to prosecute this ilaiin, 
 is not entirely clear; imt by the operation [ 
 *20 1 
 
 of ♦the decree of July. IK'A, tlie interest of I 
 the distributees of Nancy Davis was convert- 
 ed into a pecuniary demand: and her ad- 
 ministrator is the proper person to mai^e 
 distribution. It is stated to us, that tlie 
 petitioner is the attorney in fact of the dis- 
 tributees resident in Illinois; and if tliat 
 fact hi<d been alle^'cd in the petition, he 
 would have been i)roperly before the Court. 
 But all objection an this point is super- 
 seded by tlie order in the circuit decree, to 
 make the distributees parties. 
 
 Is the defendant protected liy the lapse of 
 time? The decree of July, IS-'U, is in effect 
 a judirment a,s:ainst the present defendant 
 for $41:^. with interest from June U, ISliT. 
 The full term of twenty years had not elaps- 
 ed, from the date of that decree, before the 
 present suit was instituted; and where the 
 presumption of satisfaction is urired from 
 the lapse of time merely, it is indispensable 
 that the term of twenty years be complete. 
 Even where this is the fact, the presumption 
 which arises is not one of those presumptions 
 of law which are absolutely irrebuttable, al- 
 thoush it is of such strenjith that it can be 
 overcome by scarcely any evidence. In this 
 Court, where the Chancellor exercises the 
 function of determininj; upon facts as well as 
 law, effect would be fiiven to the presump- 
 tion, wherever, in the Courts of Law, the 
 jury should be directed to iiresume the fact. 
 But where the lapse of time is less than 
 twenty years, as in this case, circumstances 
 opposing; the conclusion of satisfaction, such 
 as the admissions of the debtor, are entitled 
 to full weis;ht. Stover v. Duren, CJ Strob. 
 448 [51 Am. Dec. G'M].) Here we have the 
 statement of defendant's counsel in the peti- 
 tion of 1S31, after the death of McComb, 
 administrator, supported by all the circum- 
 stances of the case, that defendant's notes 
 for the price of the land had not been paid ; 
 and umch more, we have ■ defendant's own 
 admissions, in his answer to the present 
 proceeding, that no money has ever been 
 paid by him for this land to the Commission- 
 er of the Court, and, on his information and 
 belief, that two of the daughters of Nancy 
 Davi?, resident in Illinois, were not paid 
 by McComb. If the understanding between 
 defendant and McComb set up in the answer 
 *21 
 
 ever existed, and *defendant, upon whom 
 was the burden, has offered no proof of it, 
 such understanding could not bind those who 
 were no parties to it, and they would still 
 be entitled to their shares in the proceeds 
 of the land, until it was proved they were 
 otherwise satisfied. 
 
 It is liuite true, however, that the presump- 
 
 tion of satisfaction of the decree of ISini. does 
 not depend solely upon the lapse of time : and 
 that corroborating circumstances exist which, 
 wi' think, are sutlicient to bar those of the dis- 
 tributees of Nancy Davis, who were adult 
 residents of this State in IS^O, when the sale 
 of this land was made by the administrator, 
 with the will aiuiexed. It is alleged in the 
 petition of is;n. that most of the parties in 
 interest were present at that sale and con- 
 sented thereto, (meaning to ex<ept. as we 
 suppose, those who were absent from the 
 State,) and after the personal notice to those 
 in the State, directed by the decree of ISSl, 
 and presumed to be given, no objecfion to 
 the decree is manifestcHl. The administrator. 
 McComb, had funds in his hands, fntm the 
 proceeds of the chattels sohl. adeipiate to 
 pay tlu> distributei's resich'ut here, and we 
 should presume that he did his duty. Posi- 
 tive evidence, in aid of the presumption, is 
 offered, that he did pay most of these dis- 
 tributees. It is not likely that, in their 
 needy condition, they would have acquiesced 
 in defendant's possession of the land for a 
 (luarter of a century, if they had any just 
 cause of clamor. The decree of 1S;U recites, 
 that the Court was informed that the dis- 
 tributees resident in the State consented to 
 the order; their acquiescence makes this fact 
 very probable. Administration on the es- 
 tate of Nancy Davis was not indispensable to 
 enable the parties to avail themselves of that 
 decree. 
 
 On the whole, we consider the claim stale, 
 except as to such of the distributees of Nancy 
 Davis as were resident without the State on 
 June 9, IS'JG. 
 
 It is ordered and decreed, that the dis- 
 tributees of Nancy Davis, resident without 
 the State on June 0. lS2(i, and the repre- 
 sentative of John McComb. he made parties 
 to this proceeding. It is further ordered and 
 decreed, that the decree of July 2. IS-'U, he 
 revived, so far as the distributees of Nancy 
 
 ♦22 
 Davis, resident without *the State on June 
 9, ISUU, are interested; and that the defend- 
 ant. John Hunter, pay to such distributees, 
 so non-resident, who have not been other- 
 wise satisfied, their portions of said decree 
 for ?413, with interest from June 9, ISL'7. 
 And the Commissioner is directed to state 
 the accounts accordingly. 
 
 The order in the circuit decree, that de- 
 fen<lant pay over to the Commissioner one 
 half of the purchase money of the land, with 
 interest, is recalled; and it is ordered that 
 said decree be reft)rmed according to the 
 opinions herein expressed. Costs to await 
 the accounting before the Commissioner. 
 
 JOHNSTON, DUNKIN and DAllGAN, CC, 
 concurred. 
 
 Decree modified. 
 
 8
 
 »22 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 4 Rich. Eq, 22 
 
 JOHN B. O'NEIALL, Ex'or. of David Boozer, v. 
 AMELIA BOOZER et al. 
 
 (Columbia. Nov. and Dec. Terra, lS.ol.) 
 
 [Wills <g=:35Gl.] 
 
 Testator directed his executors "to enclose a 
 grave-yard at Aveleigb Church, from 4.5 to .50 
 yards square, with a wall of split rock from 
 4% to 5 feet high, so as to enclose the grave 
 of "my first wife, as well as my own, with suffi- 
 cient space also for the grave of my present 
 wife; and to erect over the area included by 
 the wall, a covered wooden building of the mOst 
 lasting materials, to be finished and painted in 
 appropriate style, and in tlie most durable man- 
 ner. And I appropriate one thousand dollars' 
 out of my estate to these purposes:"— //c/rf, that 
 the grave-yard intended to be enclosed and cov- 
 ered was one of forty-five or fifty square yards. 
 [Ed. Note.— For other cases, see Wills, Cent. 
 Dig. § 1221 ; Dec. Dig. <S=:>5U1.] 
 
 [Wills <S=>460.] 
 
 Words of a will may be transposed, in or- 
 der to give full operation and consistency to the 
 context. 
 
 [Ed. Note.— For other cases, see Wills, Cent. 
 Dig. § 979; Dec. Dig. <S=:5460.] 
 
 Before Johnston, Ch., at Newberry, July, 
 1850. 
 
 This case will be sufficiently understood 
 from the opinion delivered in the Court of 
 Appeals. 
 
 Fair, for the appellant. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW, Ch. The will of David Booz- 
 er contains the following clause: "I desire 
 my executors to enclose a grave-yard at 
 
 *23 
 *Aveleigh Church, from 45 to 50 yards 
 square, with a wall of split rock from 4^^ 
 to 5 feet high, so as to enclose the grave of 
 my first wife, as w-ell as my own, with suffi- 
 cient space also for the grave of my present 
 wife; and to erect over the area included 
 by the wall, a covered wooden building of 
 the most lasting materials, to be finished and 
 painted in appropriate style, and in the most 
 endurable manner. And I appropriate one 
 thousand dollars out of my estate to these 
 purposes." 
 
 The Chancellor on the circuit determined, 
 in the construction of this clause, that the 
 grave-yard intended to be inclosed was one 
 of forty-five or fifty yards square, and that 
 the wooden building intended was not com- 
 mensurate, but one sufficient to cover a space 
 or area adequate for the three graves indi- 
 cated ; and he ordered the Commissioner to 
 inquire and report as to the probable cost 
 of inclosing such a grave-yard and erecting 
 such a building. 
 
 The Commissioner, not pursuing exactly 
 the terms of the order, has reported that an 
 area of 45 or 50 yards square could not be 
 inclosed with stone and covered by a wooden 
 building for less than $4,600; and that an 
 area of 45 or 50 feet square could be inclosed 
 
 and covered as directed by the will for $900 
 or .^1.000. 
 
 From the decree of the Chancellor an ap- 
 peal is taken to this Court, on the ground 
 that by the just construction of the will, 45 
 or 50 feet square, instead of yards, should 
 be inclosed by a stone wall, and the whole 
 area included within the wall be covered by 
 a wooden building. 
 
 According to the natural construction of 
 the terms employed by the testator, the wood- 
 en building is to cover the whole space with- 
 in the wall of split rock. "Over the area in- 
 cluded by the wall," as fully and accurately 
 expresses this idea as any terms that could l>e 
 employed, And we can perceive no intimation 
 of any intention on thejiart of the testator to 
 limit the area to be covered, to a part or sec- 
 tion only included by the wall. 
 
 This is one circumstance which aids us in 
 ascertaining the testator's intention as to the 
 extent of the grave-yard to be inclosed by 
 the wall. A structure sufficiently extensive 
 
 *24 
 to cover three *graves is fx-equently found 
 within rural grave-yards ; but one large 
 enough to cover 45 or .50 yards square, or 
 half an acre, is without example ; it would 
 be most ungainly, and would exhaust, several 
 times over, the amount of the fund appro- 
 priated by the testator for this purpose, and 
 which cannot be exceeded by the executor. 
 
 The testator explains his purpose in inclos- 
 ing a grave-yard with a wall to be, in his 
 own language, "so as to inclose the grave of 
 my first wife, as well as my own, with suffi- 
 cient space also for the grave of my present 
 wife." His design was to separate a place 
 of sepulture for the bodies, wdien dead, of 
 himself, and his consorts dead and living. 
 If he really intended to inclose half an acre 
 with the wall, his careful provision for 'suffi- 
 cient space' to receive a third corpse, was 
 utterly without occasion and meaning. 
 
 One phrase in the testator's directions to 
 his executors in this matter, if the exact or- 
 der of his words be observed, is inconsistent 
 with all the rest of his directions. One par- 
 ticular in the description of the grave yard 
 is, that it is to be 'from 45 to 50 yards 
 square.' The construction of a written in- 
 strument should be made from all its parts ; 
 and if one phrase descriptive of the subject 
 of disposition be irreconcilable with several 
 other parts of the description, we should act 
 on the maxim: ex multitudine siguorum, 
 colligitur identitas vera. If we should strike 
 out the whole of this phrase as 'falsa demon- 
 stratio,' the other portions of the bequest 
 would be harmonious, and leave the testator's 
 meaning beyond doubt. But a less violent 
 process will serve the purpose. It is only- 
 necessary to transpose the words 'yards 
 square,' to give consistency and full opera- 
 tion to the whole clause. If we correct a 
 supposed inadvertence of the scribe, and read 
 
 10 
 
 ^=3For other cases see same topic and KEY-NUMBER m all Key-Numbered Digests and Indexes
 
 GLOVER V. HARRIS 
 
 *27 
 
 Siiuare yards, we shall then have a space of 
 al»<»ut twenty-one feet sciuare, to be inclosed 
 by a stone wall and covered by a wooden 
 buildinj.': and this will afford sutticient space 
 for three srraves; and the wall and building 
 may be erected for the sum appropriated for 
 the same by the testator. 'It is ipiite clear, 
 that where a clause or expression, other- 
 wise senseless and contradictory, can be 
 rendered consistent with the context, by be- 
 inf? transposed, the Courts are warranted in 
 
 *25 
 ♦niakiiifi that transposition.' (1 Jarm. on 
 Wills, 4P,~; 2 Ves. sen. 32, 248.) 
 
 It is declared and adjudfied. that the tes- 
 tator directed his executors to inclose with 
 a stone wall a grave-yard of from 45 to 50 
 stpiare yards; and to erect over the area in- 
 cluded by the wall a covered wooden build- 
 ing, further described in the will. And it is 
 ordei'ed and decreed, that the Chancellor's 
 decree be modified accordingly. 
 
 DUNKIN and DARGAN, CC, concurred. 
 Decree modified. 
 
 4 Rich. Eq. 25 
 
 SUSAN and WILKY (iLOVKR v. ELIZ. 
 
 HARRIS, GEO. A. ADDISON and Wife. 
 
 and E. S. IRVINE and Wife. 
 
 (Columbia. Nov. and Dec. Term, 1851.) 
 
 [WiUs ®=587. (;14.] 
 
 Testator, intending "as for his worldly es- 
 tate to dis[)ose thereof." devised and heqiicatlied 
 as follows: — "I lend to my wife. J, G.. durins: 
 lier natural life, the use of one half of my land" 
 (describing it) "and five negroes" (naming them): 
 after other bequests, the will cont;iinod the fol- 
 lowing residuary clause, to wit: "It is my will 
 that at my decease all the property which I 
 possess and have not before bequeathed, be sold 
 on a credit of one and two years, and for my 
 debts to be paid out of the debts which are due 
 me, and the money arising,' from the sales of my 
 property ; and the balance to be put out at 
 interest for the use and support of my children," 
 &c: — Jleld, (1) that the five negroes did not pass 
 to the wife absolutely, but for life only: (2) 
 that the reversion, after her death, did not pass 
 under the residuary clause, but was intestate 
 property. 
 
 [Ed. Note. — Cited in Lopez v. Lopez, 23 S. 
 C. 2Uy; Yarn v. Yarn, 32 S. C. 71>, 10 S. E. 
 82JJ; Lojran v. Cassidy, 71 S. C 201, 203, 50 
 S. E. 7'J4. 
 
 For other cases, see Wills, Cent. Dig. §§ 
 1200, 1303; Dee. Dig. ©=5587, 614.J 
 
 [This case is also cited in Logan v. Cassidy. 71 
 S, C. 175, 50 S. E. 704, and distinguished 
 therefrom.] 
 
 Before Johnston, Ch., at Abbeville, June, 
 1.S51. 
 
 Johnston, Ch. The bill in this case was 
 tiled the 21st of April, 1851; and is for a 
 partition of slaves and an account, &c. The 
 contest is between the desc-endauts of Wiley 
 (Jlover, Sen. and of his wife, Jemima, both 
 deceased, in relation to the proper distribu- 
 tion of their estates under their wills. In 
 
 the opening of the judgment I am about to 
 pronounce, it may conduce to the undersrand- 
 ing of it, to state the relation of the parties, 
 and how the controversy between tliem has 
 arisen. 
 
 *26 
 
 ♦Wiley Glover, Sen., married Jenuma. the 
 daughter of one Rartlet Satterwhite. At his 
 death, which took place the 8th February, 
 ISOU, he left a will, dated the (5th of Decem- 
 ber, 1.S04, (the provisions of which will be 
 noticed hereafter,! and was survived by liis 
 said wife ami two children, a son and a 
 daughter. The son. Willis Satterwhite Glov- 
 er, is now dead intestate, and the plaintiff, 
 Susan (ilover, is his widow. The plaintiff, 
 Wiley (Jlover, Jr., is his son and only child, 
 conseciuently these two are his sole distribu- 
 tees. 
 
 The daughter. Elizabeth, is the defendant, 
 Elizabeth Harris, and the defendants, the 
 wives of (Jeorge A. Addison and E. S. Irvine, 
 art' her two daughters. 
 
 Having stated the relation of the parties 
 to this suit, let us now go back to matters 
 which some of the parties sujipose bear more 
 or less upon the controversy between them. 
 
 Rartlet Satterwhite. after Wiley (Jlover, 
 Sen,, married his daughter, executed his will 
 the 15th of February, 1803. which contains 
 the following clau.se: 
 
 "I give and bequeath unto my beloved 
 daughter. Jemima Glover, (to her and her 
 heirs lawfully begotten of her body.) forever, 
 the following negro slaves, (they and their 
 increase.) namely. Tener and Chaney ; and 
 after the demise of my wife, one negro 
 woman, named Jude, (her and her increase)," 
 
 This testator (Satterwhitel did not, how- 
 ever, depart this life until the 21st of Jan- 
 uary, 1807, when he died, leaving liis ,said 
 will in full force, which was admitted to 
 probate the 14th of the succeeding April. 
 
 In the mean time, to wit, on the (>th of 
 Decvmber, 1804, Wiley (ilover. Sen., the lius- 
 band of Jemima, executed his will, as luis 
 been stated, containing the following clauses, 
 among others: 
 
 "As for the worldly estate it hath pleased 
 God to bless me with, I dispose thereof as 
 follows: * * * 
 
 "Item: I lend to my loving wife, Jemima 
 Glover, during her natural life, the tise of 
 one half of my land, (the same inchuling the 
 plantation and building where I married her,) 
 and five negroes, namely, one negro man, 
 
 ♦27 
 Murphy, one woman, Tener, two boys, ♦Nat 
 and Jack, and one girl. Mariah," (Murphy 
 and Mariah are both dead, and are not ia 
 question in this case.) "three head of horses, 
 (viz: one young sorrel mare, one bay filly, 
 and one sorrel horse colt.) ten bead of picked 
 cattle, all my stock of hogs and sheep, two 
 feather beds and furniture, and as nuich of 
 the household and kitchen furniture and 
 
 ®=^ror other cases see same topic aud KEY-NUMBEH in all Key-Numbered Digests and ludexas 
 
 11
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 plantation tools as she wishes to keep for her 
 use." 
 
 * * * * * * 
 
 "Item: It is my wish and desire, that 
 when my daughter, Elizabeth Glover, comes 
 of age or marries, the following mentioned 
 negroes and their increase be equally divided 
 between my daughter, Elizabeth Glover, and 
 my son, Willis Satterwhite Glover, share and 
 share equal, namely, Anneky, Harriet, Mary, 
 Chaney, Harper, Ned and Wince. 
 
 "Item: It is my will and desire, that at 
 my decease all the property which I possess 
 and have not before bequeathed, be sold 
 on a credit of one and two years, and for my 
 debts to be paid out of the debts which are 
 due me and the money arising from the sales 
 of my property; and the balance to be jiut 
 out on interest for the use and support of 
 my children, Elizabeth Glover and Willis 
 Satterwhite Glover. 
 
 "Item: It is my will and desire, that when 
 my daughter, Elizabeth Glover, marries or 
 comes of age, all the monies arising from 
 the sales of my property, be equally divided 
 between my daughter, Elizabeth Glover and 
 Willis Satterwhite Glover. 
 
 "It is my wish and desire, that my wife, 
 Jemima, shall keep and have the use of the 
 negroes which I have before bequeathed to 
 my daughter, Elizabeth Glover, and Willis 
 Satterwhite Glover, until my daughter, Eliza- 
 beth Glover, and Willis Satterwhite Glover, 
 comes of age or marries." 
 
 The executors named in the will were tes- 
 tator's wife, Jemima, and his friends Nathan 
 Lipscomb and James Bullock. 
 
 This testator died, as has been stated, on 
 the 8th of February, 180G, and on the 6th of 
 
 *28 
 March, 1806, his will was admitted to *pro- 
 bate, and the widow, Jemima, and James 
 Bullock qualified as executors. 
 
 On the 11th of the same month, they caus- 
 ed an inventory and appraisement to be made 
 and returned to the ordinary ; in which 
 Chaney and her three children, Harper, Ned 
 and Tom, and Teuer and her three children, 
 Nat, Jack and Mariah, are set down as part 
 of their testator's estate ; Jude is not includ- 
 ed in the Inventory. 
 
 Jemima, the widow of Glover, intermarried 
 with Nathan Lipscomb, the 9th March, 1808, 
 and they had the possession of Tener and 
 her issue. 
 
 Lipscomb's will is in evidence, dated the 
 26th April, 1820, and admitted to probate the 
 29th September of the same year, by which he 
 willed, "that his wife, Jemima, should have 
 all the negroes she had in her possession at 
 the time of their intermarriage, and their in- 
 crease, viz: Tener, Nat, Jack, Harry, John- 
 son, Caroline, Sarah and Isaac, and their 
 future increase," &c. 
 
 Jemima Lipscomb, (formerly Glover,) died 
 the 29th January, 1850, leaving in full force 
 her will, executed the 18th of April, 1819, by 
 12 
 
 the 2(1 clause of which she bequoathod to hor 
 grand daughter, the defendant, Ann Jemima 
 Harris, (now wife of the defendant, E. S. 
 Irvine.) during her natural life, "Jenny and 
 her children, Chaney and Harper, Harry and 
 his wife, Milley, and her children, Jim. Tom, 
 Fib, Dicey, Harry, Mary, Isaac and Emeline, 
 and Johnson and Sarah and her children, 
 Elvina, Jude, Peter and Lina, with all their 
 increase," with remainder to her children, 
 &c. 
 
 By the .3d clause, she bequeathed for life, 
 with remainder, &c., to her grand daughter, 
 the defendant, Rebecca, wife of George A. 
 Addison, "Edy, Eliza, Amanda, Frances, 
 Emma, Jane, Sarah, Edmund and Doc ; and 
 Caroline and her children, Lewis, Tira, Bill, 
 Johnson, Josephine and Elizabeth, with all 
 their increase," &c. 
 
 By the 5th clause, she bequeathed to her 
 daughter, the defendant, Elizabeth Harris, 
 (formerly Glover,) "Rachel and her children, 
 Allen, Tilda, Cary, Gus and Lisha, and 
 Jack and Nat. Jude and Tener, to her, her 
 heirs and assigns forever." 
 
 The plaintilfs, the widow and son of Willis 
 *29 
 Satterwhite Glover, *claim under the will of 
 Wiley Glover, Sen., insisting that the will of 
 his widow, (afterwards Jemima Lipscomb,) 
 is ineffectual to alter their rights, as fixed 
 by the will of her first husband. 
 
 The defendants claim under the will of 
 Jemima Lipscomb, and fortify their claim 
 by the will of Bartlet Satterwhite, insisting 
 that Wiley Glover had no such i-ights in 
 the property as enabled him to bequeath it. 
 
 The negroes mentioned in the pleadings 
 are: 
 
 1st. Jude and her issue. 
 2d. Chaney and her issue. 
 3d. Tener and her issue. 
 
 I shall put Chaney and her issue out of 
 the question. They are bequeathed by 
 Glover absolutely to his two children, and 
 have been partitioned in a former proceed- 
 ing given in evidence, which is conclusive 
 between these parties. 
 
 With respect to Jude and Tener and their 
 respective issues, it is very clear, that if 
 they were in possession of Glover and wife, 
 at the time of Glover's death, as their prop- 
 erty, the marital rights of Glover attached, 
 and they must be governed by his will ; 
 and it must depend on the terms of the will 
 whether his widow had any right of disposi- 
 tion over them. 
 
 If, however. Glover had no right to the 
 property at his death, the will of hi.s father- 
 in-law, Satterwhite, which, though first ex- 
 ecuted, came subsequently into operation, 
 must govern ; and if that is the case, I sup- 
 pose there is no question, the legal opera- 
 tion of that will was to vest the property 
 absolutely in Satterwhite's daughter; and 
 (her second husband, Lipscomb, having by 
 his will released his marital rights,) her
 
 GLOVER V. HARRIS 
 
 ♦32 
 
 will is sufficient to carry the title. Now, 
 with regard to Jude and her issue, it not 
 only appears negatively, (from the fact that 
 there is no evidence of Glover's possession ; 
 that they are not mentioned in the will of 
 Glover : and especially that they were not 
 inventoried as part of his estate.) that they 
 were not in his possession in his life time, 
 but the pregnant fact is also in evidence, 
 that Satterwhite's will, which alone men- 
 tions the existence of such negroes, sus- 
 
 ♦30 
 pends Mrs. Glover's *right upon a prior dis- 
 position of them for life to her mother, who 
 lived, according to the evidence, until 1817; 
 so that it was impossible for (ihtver's right, 
 as husband, ever to have attached during 
 his life. These negroes were, therefore, 
 well disposed of by Mrs. Lipscomb. 
 
 It remains to consider Tener and her 
 stock: two of these. Murphy and Mariah, (I 
 include Murphy as of that stock for con- 
 venience, though he was of a ditferent 
 stock,) died during the life of Mrs. Lip.s- 
 comb, who had a life tenure in them, under 
 Glover's will, and are, therefore, out of the 
 question here. 
 
 As to the remainder of that stock. I am 
 of opinion, that it stands upon a footing dif- 
 ferent from Jude and her issue. The evi- 
 dence that Tener and her children were in- 
 ventoried as parcel of Glover's estate, by 
 his widow, under whom the defendants 
 claim, within little over a month after hia 
 death, is pretty conclusive and very satis- 
 factory evidence, as against them, at least, 
 that he died possessed of them. This, too, 
 was in the life time of .Satterwhite. who 
 may be supposed to have taken some in- 
 terest in the affairs of the family and prob- 
 ably was not ignorant of the fact. 
 
 Upon this evidence, I conclude, that Glov- 
 er, who named this stock of negroes in his 
 will, had obtained possession of them as 
 early as 1804, (the date of his will,) and 
 held them as his own. 
 
 There is no evidence that they were ever 
 in Satterwhite's possession after Glover be- 
 queathed them; nor, indeed, is there any 
 evidence, that they were at any time, what- 
 ever, in his possession, beyond the fact that 
 they are mentioned in his will of 1803. 
 
 It is not unreasonable to suppose, that, 
 after that will was drawn, he concluded to 
 anticipate the bequest by an actual gift 
 inter vivos. 
 
 In opposition to the actual possession of 
 them by Glover, and his disposition of them, 
 I do not feel at liberty to conclude that 
 there was any right remaining in Satter- 
 white, upon which his will, when it came 
 into operation by his own death, could act. 
 
 It has been ingeniously argued, indeed, 
 that Glover held as bailee of Satterwhite, 
 and by his will, only intended to confer 
 on his wife the same interest which he sup- 
 
 *31 
 
 posed was given her by the *will of Satter- 
 white, his bailor. But where is the evi- 
 dence of the bailment'.' If he knew of Sat- 
 terwhite's will and its provisions, and ac- 
 knowledged his right, where was the neces- 
 sity or the propriety of attempting to make 
 any disposition of the property, at all? Be- 
 sides, even if he supposed that Satterwhite's 
 will gave his wife a life tenure in the 
 slaves, with remainder to the issue of her 
 body, why did he not conform to that? 
 Wliy (lid he dispo.se of Tener and Chuney 
 differently? 
 
 My conclusion is, that these slaves must 
 be governed by Glover'.s will. 
 
 Some remarks have been made upon the 
 construction of that will. 
 
 It is remarkable tliat there is no general 
 residuary clause in this testamentary paper. 
 The testator .«ets out with the expression of 
 a desire to dispose of his whole estate: 
 which circumstance, upon authority and in 
 reason, will justify the giving to subsequent 
 dispositions, a wider scope and operation 
 than they would otherwise be entitled to. 
 But even under such circumstances, an un- 
 reasonable, unnatural or forced interpreta- 
 tion should not be adopted. 
 
 In this will there is no specific disposi- 
 tion of these slaves beyond the life interest 
 of Mrs. Glover. There is, to be sure, a pro- 
 vision for the sale of "all the property 
 which I possess and have not bequeath- 
 ed." This may mean all property as 
 to which no bequest is made at all ; or it 
 may mean all interests undisposed of in 
 property not fully bequeathed, and certain- 
 ly, under the general rule that a testator, 
 declaring an intention to dispose of his 
 whole estate, should have his will so con- 
 strued, if it reasonably can be. as to effect 
 his intention, I should adopt the latter con- 
 struction, if it were not repugnant to the 
 other provisions of this will. The testa- 
 tor not only directs his unbetpieathed proiv 
 erty to be sold, but to be sold "at his death." 
 He could not have intended this direction 
 to operate on these slaves, since such a sale 
 would have defeated his specific direction, 
 that his wife should have the enjoyment of 
 them during her life. There is another rea- 
 son, which, it appears to me, should prevent 
 
 *32 
 I the construction *alluded to. It consists in 
 the purpose which the sale was intended to 
 effect. The sale was to raise funds to pay 
 debts. Now, it is of the very essence of a 
 specific IXHiucst ; such as the gift to the wife, 
 here for life — that the property is given clear 
 of debts, and that the debts should be paid 
 out of otlier property without disturbing it. 
 
 It is argued, however, that the reversion 
 might have l>een sold, and the wife allowed 
 to retain and enjoy the slaves, without dis- 
 turbance, during her life. But this prop- 
 erty was personal property; and it is ditti- 
 
 1-^
 
 *32 
 
 4 RICHARDSON'S EQriTY REPORTS 
 
 cult to conceive how the sale could have 
 been made good without a delivery ; and 
 how could that have been made without dis- 
 paraging the rights of the life tenant. 
 
 If this property was not intended to fall | 
 within the provision for a sale, another 
 point in the construction, which was con- 
 tended for by the plaintiffs, is also over- 
 ruled. The proceeds of the sale were not 
 only to be applied to debts, but, whatever 
 balance might remain, after the debts were 
 satisfied, was to be divided between the two 
 children, Willis and Elizabeth. It was urg- 
 ed that this should give these two an equal 
 portion in the negroes, after their mother's 
 death, instead of the money wliich the sale 
 was intended to raise. I might concede, that 
 where personal property is ordered to be 
 sold and the proceeds divided, and the prop- 
 erty is not actually sold, the persons among 
 whom the proceeds are to be distributed 
 have an equitable interest, entitling tliem 
 to the property itself. But I have arrived 
 at the conclusion, that this property was 
 not directed to be sold, nor its proceeds di- 
 vided, and, therefore, I cannot apply the 
 doctrine to which I have alluded. 
 
 But it was contended, on the other hand, 
 by the defendants, that these slaves were 
 given by the will, out and out, to the widow. 
 If so, there was no reversion in the case. 
 And upon this construction, the slaves, be- 
 longing absolutely to the widow, must pass 
 under her will; and the plaintiffs have no 
 interest in them. 
 
 The argument was, that by the proper 
 construction of Glover's will, though he 
 loaned his wife, for life, one half his land; 
 yet, as a separate thing, he loaned her the 
 
 *33 
 
 five negroes mentioned by him, *without 
 restricting the loan to her life. That the 
 word "lend," as applied to the negroes, is 
 equivalent, in law, to a gift ; and there be- 
 ing no restriction as to time in that part 
 of the will, the gift was absolute. 
 
 If the loan was of the land and of the ne- 
 groes, as separate dispositions and upon dit- 
 ferent terms, there might be ground for the 
 inference contended for. 
 
 The words of the will are, "I lend to my 
 loving wife, during her natural life, the use 
 of one-half of my land," (describing it,) "and 
 five negroes," (naming them). 
 
 I cannot disjoin these things. In Moon v. 
 Moon, (2 Strob. Eq. 333,) the Court, for rea- 
 sons appearing in the context of the will, ar- 
 rived at the conclusion, that a tract of land 
 and two negroes, given in the same clause, 
 were given upon different terms ; and that 
 terms of restriction, employed in more im- 
 mediate connection with the negroes, were 
 applicable to them exclusively, and not to 
 the land. But this was done by construc- 
 tion. But I cannot see room for consti'uc- 
 tion here. The disposition of land and ne- 
 
 14 
 
 groes is uno flatu. They are both loaned, 
 and loaned for nse only, and for life. 
 
 I think, too, that in such a connection as 
 this, (whatever may have heen decided uix)n 
 the word "loan," in other connections.) it 
 would be both unnatural and unreasonable 
 to suppose that the testator intended to give, 
 in the sense, at least, of parting from his 
 whole right. 
 
 The result, in my opinion, is, that the will 
 of Glover operated only to dispose of these 
 negroes during his wife's life ; and the re- 
 mainder in them was intestate property of 
 his estate. 
 
 His widow was entitled to an undivided 
 third of that remainder, and each of his chil- 
 dren, Willis and Elizabeth, to an undivided 
 third. 
 
 The widow, Mrs. Lipscomb, was entitled 
 to bequeath her tliird ; and so far as she 
 has done so, the defendants are entitled to 
 the benefit of her will. 
 
 The plaintiffs are entitled, by partition, 
 
 *34 
 
 to have the third to *which Willis Satter- 
 white Glover was entitled, allotted to them, 
 and sub-partitioned between them, by allow- 
 ing to the plaintiff, Susan, one-third of that 
 share, and the plaintiff, Willis, the remain- 
 ing two-thirds of the same. And they are 
 entitled, in the same ratio, to an account of 
 the hire or profits of said slaves, from the 
 death of Mrs. Lipscomb, at the hands of the 
 defendants, in whose hands respectively, the 
 said slaves have been. All which is hereby 
 adjudged and decreed: and let a writ of 
 partition issue, and an account be taken by 
 the Commissioner accordingly. 
 
 If any of the slaves have died since the 
 remainder fell in, or have been disposed of 
 by either of the defendants, and are not now 
 in their possession, the Commissioner will 
 take an account of the value of such slaves, 
 and report it for the judgment of the Court; 
 which will be reserved on those matters until 
 the report comes in. He may also report any 
 special matter, subject to the same condi- 
 tions. The defendants to pay the costs. 
 
 The defendants appealed on the follow- 
 ing grounds: 
 
 1. Because there was no evidence that 
 Bartlett Satterwhite ever gave Tener and 
 her increase to Wiley Glover, or his wife, 
 Jemima, except what is contained in his 
 (Satterwhite's) will. The bequest in his will 
 did not and could not take effect until his 
 death; but he died after Glover, and there- 
 fore he. Glover, never had the right to dis- 
 pose of said negroes. 
 
 2. Because there was no evidence that 
 Wiley Glover ever had possession of Tener, 
 except the circumstance of his having dispos- 
 ed of her by will ; but if he had the cus- 
 tody of her at the time he wrote his will, 6th 
 December, 1804 — a period subsequent to the 
 making of Satterwhite's will, loth Febru- 
 ary, 1803 — it is reasonable and natural to
 
 GL0\T:R v. HARRIS 
 
 *37 
 
 <'onclii(le that his possession was not abso- 
 lute, but peiinissive, and solely in reference 
 to the will of Satterwhite, by which Tenet 
 was Riven to his wife, which Rift, however, 
 was inchoate and imperfect, until the will 
 took effect by the death of Satterwhite. 
 
 'i. Then' was no evidence of a Rift of Ten- 
 er from Satterwhite to (Jlover or his wife, 
 other than that in Satterwliite's will. There 
 
 ♦35 
 
 ♦was no evidence even of possession by (ilo- 
 ver, e.xcept the effort to dlsjiose of her by 
 will, which conforms to Satterwliite's will, in 
 not assumiiiR to disjiose of her l»eyond the 
 life of .Teminia, his wife; therefore, the de- 
 fendants insist, that there was no Rift to 
 (ilover, nor .such uniiualilie<l possession by 
 him as will presume a Rift in his favor. 
 
 4. lUit if it he assumed that Wiley (jlover 
 had the riRht to dispi>se of Tener, by pre- 
 sumiiiR a Rift, other than that end)raced in 
 Satterwliite's will, and in opiM)sition to it; 
 then the defendants insist that Wiley Glover, 
 by his will, disposed of all his interest in 
 Tener and her increase to Jemiuia, his wife, 
 the donor of defendants. 
 
 5. The defendants insist that Tener was 
 Riven absolutely to .Temima Gbner. by the 
 will of her father, Bartlett Satterwhite. cer- 
 tainly b.v the will of her husiiand, Wiley 
 Glover. But if it should be held that "there 
 is no disposition of the.se slaves beyond the 
 life interest of Mrs. Glover," then the in- 
 terest in remainder, which was not bequeath- 
 ed, should have been sold at the death of 
 (ilover, under the express provisions of his 
 will. And a bill haviuR beiMi tiled for that 
 purjmse many years since, the matter is now 
 "res adjudicata." 
 
 (j. The interest in Tener and her children 
 luidisposed of by the will of Wiley Glover, 
 was an interest in reversion, as to which he 
 (lied intestate — which on his death vested in- 
 stantly in those entitled to distribution; 
 and they are now l)arred by lapse of time 
 and the statute of limitations. 
 
 7. Mrs. Jemima Glover — afterwards .Te- 
 mima Lipscomb — held these ncRroes, from 
 the death of Satterwhite, in 1S()(>. until she 
 died in 1850. She held them as her own, ad- 
 versely to every other claim, especially aft**r 
 the death of Nathan Lipscomb, in ISL'O, un- 
 der whose will these ncRroes were Riven to 
 her for the third time: and the complainants 
 are therefore barred by lapse of time and 
 the statute of limitations. 
 
 Perrin & McGowen, for apiK'Uants. 
 
 , contra. 
 
 ♦36 
 ♦The opinion of the Court was delivered by 
 
 JOHNSTON, Ch. This Court, beluR entire- 
 ly sjitislied with the view which the Chan- 
 cellor has taken, as reRanls the possession 
 of the slave Tener and her children by Wiley 
 
 Glover, and the operation of his will ui)on 
 her, as his property:— deems it necessary to 
 notice oidy two i)oints made in the argument 
 of the api»eal liere: 
 
 L Was that slave Riven by the will of this 
 testator, in the tirst instance, to his wife al>- 
 solutely; or only for life? 
 
 li. If for life only, did the residuary clause 
 of the will attach upon the reversion; or 
 did it remain intestate? 
 
 I. No case has been pointed out at all 
 obliRiuR the Court to jmt a construction ni^m 
 the words of the will, contrary to their plain 
 and manifest nieaniuR. NothiuR can be 
 plainer than that the testator intended, as 
 he .says in his will, to loan to his wife the use 
 of this property, duriuR her natural life. 
 
 The case of Moon v. Moon, 2 Strob. Eq. 
 .'i.'J.3, even if it api»ly almost in tenns to this 
 cas«', is no authority for a construction 
 aRainst the jtlain intent of the will. That 
 case was rubHl upon the construction of the 
 particular will before the Court, — and the 
 decision was made with a view to promote, 
 and not to contradict, the real intention. 
 
 There is a difference between the phrase- 
 oloRy of that will and this: — and where the 
 difference of phraseoloRy points to a differ- 
 ent intention in the two cases, principle, — 
 (the same principle which governed the con- 
 struction in that case,) — compels us to come 
 to a different result in this. 
 
 The two cases aRree in this: that the tes- 
 tators both intended to dispose of their whole 
 estates:- that after a dispositiiai of realty 
 and personalty in the siime clause, which 
 certainly as to one class of property was in- 
 tended to be only for life, and as to the oth- 
 er was equivocal, the testators take up a 
 portion of the pro^ierty and make it the sub- 
 ject of further disposition, — but totally neg- 
 lect the other. 
 
 So far the two cases agree. But they dif- 
 fer in other resiKnts. 
 
 *37 
 
 *In Moon v. Moon, the words of the will. 
 (sui>i>lying neces-sary words.) are these: "I 
 Rive my wife, N. T. M., the tract of land 
 whereon I live, containiuR HOC acres, more or 
 less ; also" (I give her) "two negroes, to 
 wit, my man Stei»hen and my Rirl Harriet, 
 duriuR her natural life, or widowhood," &c. 
 
 In this case, the will is, "I lend to niy 
 loving wife, J. G., during her natural life, 
 the use of one half my land," (describing it,) 
 "and live negroes." (naming themi. 
 
 Is it not i)alpable that the words, "during 
 her natural life." are, in the latter case, 
 connected inunediately with the words of 
 dispositicm, so as to qualify them, before 
 they are applied by the testator to the sub- 
 jects di.sposed of. The effect is, that what- 
 ever subjects are touched by the disi)osltion 
 are affected by the qualitication attached by 
 the testator to the words of disposition 
 themselves. 
 
 The words of this clause of Glover's will 
 
 15
 
 *37 
 
 4 RICHARDS(WS EQUITY REPORTS 
 
 have the same meanins as if he had said, 
 "I am now going to point out property wliicli 
 I intend for my wife, but I intend to loan it 
 to her, for her use during lier life: and up- 
 on these terms my will is that she have the 
 land and five negroes." The phraseology of 
 iloon was different. He imposes no restric- 
 tion upon the words of disposition in them- 
 selves, but uses them in their natural sense. 
 Applied in their natural sense, they gave his 
 wife a fee in his land ; and so would they 
 have given her the negroes absolutely, if he 
 had not, in inunediate proximity with thiit 
 disposition, imposed a restriction upon the 
 gift, as made by the words of disposition. 
 
 In that case, a full and unqualified dis- 
 position was made, applicable to both land 
 and negroes, — and then a restriction is im- 
 posed upon that disposition, so far as related 
 to the negroes. 
 
 In this case, nothing but a qualified dis- 
 position proceeds from the mouth of the 
 testator, equally affecting all the property to 
 which he applies it. If our language afford- 
 ed a verb signifying, "I lend for life,"' we 
 should have this testator's meaning if we 
 inserted that single word instead of the 
 words of disposition employed by him. 
 
 *38 
 
 *I think, too, as I have intimated in the 
 decree, that the word "lend," used in such 
 a connection as this, is evidence of an in- 
 tention to make a limited disposition. Take 
 the words, "lend," "use," "for life" ; they 
 all harmonize in shewing that there was 
 no intention, — there could be none, — to give 
 the property absolutely and forever. In 
 Waller v. Ward, 2 Sp. 793, it is said: "the 
 term use might sometimes afford argument 
 for an intention to give only a life estate :" 
 — and I think when it is connected with the 
 word "lend" and the words "during her 
 life" — all standing in one group — it is diffi- 
 cult to conjecture any other intention. 
 
 2. Being satisfied that these slaves are 
 only given for life, I am, also, of opinion, 
 that the residuary clause of the will does not 
 embrace them ; and therefore they are in- 
 testate property after the efflux of the life 
 estate. 
 
 I can add very little to what I have said 
 in the decree upon that subject. 
 
 The direction, then, is to sell, at the tes- 
 tator's death, all the property to which the 
 special residuary clause was intended to ap- 
 ply. The very fact that the interest now 
 under consideration was of necessity, at that 
 time, a reversionary interest, upon which no 
 act of administration could be performed un- 
 til the prior life estate expired and the rever- 
 sion accrued, — of itself forbids the idea that 
 it was intended to be parcel of the property 
 then directed to be subjected to an act of 
 administration. 
 
 It is ordered, that the decree be affirmed, 
 and the appeal dismissed. 
 
 DARGAX and DUNKIN, CC, concurred. 
 
 WARDLAW, Ch., having been of counsel 
 in the cause, gave no opinion. 
 Decree affirmed. 
 
 4 Rich. Eq. *39 
 ♦EDMUND ATCHESOX and Others v. DOUG- 
 LASS ROBERTSON, Ex'or., and Other.s. 
 (Columbia. Nov. and Dec. Term, 1851.) 
 
 [Wills <©=:37:'.().] 
 
 Where legatees, whose legacies were of equal 
 grade, had heen paid in unequal proportions, 
 and afterwards a fund, insufficient to pay all 
 the balances, was recovered from the estate of 
 a deceased executor who had committed waste, — 
 }icld, that such fund should be applied in the 
 first instance towards equalizing the lesatees 
 who had received less than the others, before 
 any part should be applied to the legacies of 
 those who had been more favored. 
 
 [Ed. Note.— Cited in Lay v. Lay, 10 S. O. 
 219. 
 
 For other cases, see Wills, Cent. Dig. § lS79j 
 Dec. Dig. <g=»736.] 
 
 [Executors and Administrators <g=:331S.] 
 
 Where a legacy to an executor is of equal 
 grade with those of other legatees, and, because 
 of a devastavit committed by a deceased co-ex- 
 ecutor, the assets are insufficient to pay all the 
 legacies, he, the executor, is not entitled to re- 
 tain his whole legacy, but only his due propor- 
 tion. 
 
 [Ed. Note. — For other cases, see Executor* 
 and Administrators, Cent. Dig. § 1324 ; Dec. 
 Dig. <©=^31S.] 
 
 [Executors and Administrators <S=>111.] 
 
 Counsel fee allowed the executor out of the 
 assets, and Wham v. Love (Rice Eq. 51) ap- 
 proved. 
 
 [Ed. Note.— Cited in McClellen v. Hethering- 
 ton, 10 Rich. Eq. 204, 73 Am. Dec. 89. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 449 ; Dec. Dig. <S=>111.] 
 
 Before Johnston, Ch., at Edgefield, June, 
 1851. 
 
 The bill was filed by legatees of William 
 Robertson deceased. 
 
 The testator died in May, 1841, leaving a 
 will, of which two of his nephews, (the de- 
 fendant, Douglass Robertson, and James Rob- 
 ertson, now deceased,) were executors, and 
 also entitled to legacies under the will. 
 
 On the 24th of November, 1841, the execu- 
 tors sold the estate on a credit of twelve 
 months, and shortly afterwards divided the 
 sale notes between them ; Douglass Robert- 
 son receiving notes to the amount of $4,- 
 739.53, and James to the amount of .$4,677.09. 
 
 On the 7th of Septeml)er, 1847, Douglass 
 took from James, his co-executor, who then 
 seemed to be in failing circumstances, a 
 mortgage, to secure himself from the con- 
 sequences of his (James's) devastavit of the 
 assets in his hands. 
 
 James died intestate shortly after execut- 
 ing this mortgage. His estate came into the 
 
 16 
 
 ^ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 ATCHESON V. ROBERTSON 
 
 •42 
 
 hand of the defendant, Hill, to be adminis- 
 tered, and realized but a small sum applica- 
 ble to the niortjiase. 
 
 The bill claimed an account of William 
 Robertson's estate, and that Douglass Rob- 
 ertson be held resjionsible for the waste 
 committed by his co-exetutor, .lames. 
 *40 
 
 ♦The case came to a hcariii;,' niion the 
 merits, in June INHO ; and tlie Court decided 
 that I)ou},'lass was not liable for the dev- 
 astavit of his co-executor: Itut that the 
 estate was entitled to the beiiellt of the 
 mortf^ase which lie had taken for his own 
 protection. (;} Rich. Kq. i:\'2 [.jIj Am. Dec. 
 63-4]). 
 
 The accounts were referred to the com- 
 missioner. T'i)oii the reference, it appeared 
 that payments had been m.-ule. of unecpial 
 amounts, to the different legatees, whose leg- 
 acies were all of ecpial ;:ni(le. The com- 
 missioner, in his report, distiibuted the re- 
 mainini,' as.sets in proi)ortion to the balances 
 still due the legatees, and not in i)roi»ortion 
 to their legacies, as they stood before any 
 payments were made upon them. To this 
 part of the report, the defendants excepted, 
 and insisted that the assets should be dis- 
 tributed in proportion to the original 
 amounts of the legacies, and not in propor- 
 tion to the amounts to which they were 
 reduced by the i)artial and une(inal pay- 
 ments which had been made to the legatees. 
 
 In his report, the commissioner, al.so, 
 held Douglass Robertson entitled to retain 
 the whole amount of his own legacy out of 
 the amount of assets which came to his 
 hands, and to distribute the residue only, 
 among the other legatees. To this part of 
 the report, the plaintiffs put in an excejition, 
 (number 2.) insisting "'that the connnissioner 
 erred, in allowing the defendant. Douglass 
 Robertson, to retain, out of the assets in 
 his hands, the entire share of his testator's 
 estate, to which he would have been entitled 
 had there been no waste of the same ; and 
 submitting that he should have received 
 credit, only for his proportionate share of 
 those assets, his possession thereof being 
 fiduciary merely, and no appropriation of 
 any part thereof having been made by him 
 to the payment of his individual share of 
 the same.'' 
 
 The commissioner, in his report, al.so 
 charged the fund to be distributed with the 
 counsel fees paid by Douglass Robertson, for 
 defending tbis suit: to which the plaintiffs 
 put in an exception, (number 1,) insisting 
 that it was error to allow this charge, in- 
 asmuch as tlie fees "were expenses incurred, 
 
 *41 
 not for the benefit of the testa*tor's estate, 
 but in resisting the claims of the legatees, 
 and in sustaining a defence utterly liostile 
 to their interest." 
 
 Tlie case came up upon the reiiort and ex- 
 ceptions. 
 
 4 Rich. Ey.— 2 
 
 John.ston, Ch. I shall sustain all the ex- 
 ceptions. 
 
 In relation to tbe defendants' exeeiition, 
 though it is said there are authorities both 
 ways, (which are not produced, however.) I 
 caiuiot ptMceive why the assets remaining for 
 distribution should not be appliitl. in the first 
 instance, towards equalizing the legat»vs who 
 have received less than ihe otluTs. before go- 
 ing on to itay those of them w bo liave l»een 
 more favored. 
 
 I liave uiore doubt respecting the .-second 
 excei)tion of the plaintiffs than any other. 
 Rut it iippears to me that Douglass Kohert- 
 son had no right to retain his entire legacy 
 out of the as.sets v»hich canie to his hands, 
 and throw the other legatees upon the assets 
 in the hands of his co-executor ; thus bur- 
 dening them with the whole of the loss oc- 
 casioned by his de\astavit. He was boun«l to 
 make lair distribution of what came to his 
 own hands, and was. therefore, entitled ro re- 
 tain oidy his due proportion. 
 
 The first exception of the plaintiffs aii|u'ar.s 
 to be decided by the case of Wham v. Love. 
 Rice Eq. 51. Tliib Court has nothing to do 
 with counsel fees, except when they are ex- 
 penses of administration. The fees in, this 
 case were not for the benefit of tiie estate, 
 nor were they incurred in preseiving it. or 
 adding to the funds to be distributiMj; but 
 simply in defending the exei utor. in a mat- 
 ter entirely personal. 
 
 It is true, he successfully defended himself, 
 and e.stablished his innocence of tbe charges 
 brought against him. That entitled bim to 
 his costs. But though the Court has author- 
 ity to decree costs, according to tbe merits 
 of ihe case: it can go no furtiier. It has no 
 authority to decree coun.-el fees in any case, 
 unless they are incurred as expenses of ad- 
 ministration. An executor's case differs, in 
 no respect, from any other case: and unless 
 we take upon us to decree counsel fees in 
 *42 
 
 every case, according to the merits of *the 
 parties, we have no right to do it, on the 
 ground of merit alone, in the ca.se of an ex- 
 ecutor. 
 
 Ordered, that the exceptions be sustained, 
 and the report recommitted, to be reformed. 
 
 The defendant, Douglass Robertson, ap- 
 pealed, en the following grounds: 
 
 1. That he was entitled, under the practice 
 of this Court, and in e<iuity and justice, to be 
 allowed the fee paid his .solicitor in defend- 
 ing this suit, as by the result of the case, it 
 appeared that he was imiiroperly brought in- 
 to Court, and not liable as to the matters 
 charged against him in the bill. 
 
 2. That, being in possession of the fund, he 
 was entitled to retain what was due to him- 
 self as legatee, otherwise he derives no ben- 
 efit from his own diligence and hone.sty, and 
 is made, to some extent at least, answerable 
 for the devastavit of his co-executor. 
 
 17
 
 *42 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 GrifBn, for appellant. 
 Bauskett, contra. 
 
 The judgment of the Court was announced 
 
 by 
 
 DARGAN, Ch. On the main issues involv- 
 ed in this appeal, we entirely approve of the 
 views of the Chancellor in his circuit decree. 
 In Lupton v. Lupton, (2 Johns. Ch. 614,) 
 where some of the legacies had been paid in 
 full, and others of equal grade remained un- 
 paid, and the executor had committed a dev- 
 a.stavit, and was insolvent, so that the lat- 
 ter could not he recovered from him, it was 
 lield, that those legatees who had received 
 payment, were not hound to refund, or to 
 contribute, in the way of apportionment, to- 
 wards the satisfaction of those who had re- 
 ceived nothing, even though some of the un- 
 paid legatees were infants at the time of the 
 application for contribution ; there having 
 been originally a sutliciency of assets in the 
 hands of the executor to pay all the legacies. 
 But the question here raised between the leg- 
 atees of Wm. Robertson, is essentially differ- 
 ent. Their legacies are of equal grade, and 
 they have received partial payments in un- 
 equal amounts, from a fund heretofore de- 
 
 *43 
 voted to that purpose. Another fund, *which 
 has been recovered from the estate of a de- 
 ceased executor, wlio had committed waste, 
 is now to be applied in payment of these leg- 
 acies, but which is still insufficient to satis- 
 fy them in full. Tlie commissioner supposed, 
 (and he so reported,) that the fund in hand 
 was' to be applied in payments to the lega- 
 tees, in proportion to the unsatisfied balances 
 due upon their respective legacies. The 
 Chancellor overruled his judgment in this 
 particular; and this Court concurs with the 
 Chancellor. 
 
 If the fund liad been applied, before bill 
 filed, in full satisfaction of some of these 
 legacies to the exclusion of others, without 
 an intention to give a preference, (there be- 
 ing no original deficiency of assets,) this Court 
 might, and probably would, in accordance 
 with the doctrine asserted in Lupton v. Lup- 
 ton, (already cited,) refuse to decree a resti- 
 tution for the purpose of equalization ; and 
 leave the parties who had been satisfied, in 
 the enjoyment of the advantages gained by 
 their diligence. Equality is a favorite rule 
 in this Court. And the equalization of paj'- 
 ments can be attained in this case without 
 any decree for restitution, and simply by the 
 application of the fund now under the con- 
 trol of the Court. It should be applied, first, 
 to equalize the payments on all the legacies ; 
 and the residue should be applied rateably on 
 all the legacies, as the Chancellor has de- 
 creed. 
 
 Another question has been raised, under 
 these circumstances. Douglass Robertson, the 
 executor of AVm. Robertson, is also a lega- 
 
 18 
 
 tee. His legacy is of the same grade with 
 those of the other parties to this bill. Tliere 
 is a deficiency of assets to pay all the leg- 
 acies, in consequence of the devastavit of 
 his co-executor, James Robertson, as has 
 been before stated ; and Douglass Robertson 
 claims, as executor, the right to detain, of 
 the assets which have come into his hands, 
 enough to satisfy his own legacy in full, be- 
 fore any application of the fund is made in 
 payment of his co-legatees ; in analogy to the 
 right of an executor to detain for the pay- 
 ment of his own debt against the testator. 
 No authority has been adduced in support of 
 the doctrine here advanced ; and, regarded 
 as a principle, it is not supported by a sem- 
 
 *44 
 blance of equity. *An execiitor receives the 
 assets of the estate in trust, for the com- 
 mon benefit of all the parties in interest, ac- 
 cording to their respective riglits, as fixed 
 by the will. If the testator gives him a 
 legacy, and intends that he should have prior- 
 ity of payment, such intention would be de- 
 clared upon the face of the will. And it is 
 inequitable, that an executor should, by vir- 
 tue of his office, (which is a mere trust,) be 
 allowed preferences as a legatee, to which he 
 is not entitled by the provisions of the will. 
 The Chancellor has so decided; and this 
 Court concurs. 
 
 In the settlement of his accounts, the ex- 
 ecutor claimed to be reimbursed for his coun- 
 sel fee paid in this cause. This charge was 
 allowed by the commissioned, and disallowed 
 by the Chancellor. The decision of the Chan- 
 cellor, overruling the report of the conunis- 
 sioner in this resi>ect, has been made a 
 ground of appeal: and a majority of this 
 Court are of tile opinion, that the counsel 
 fee should have been allowed, as a credit 
 upon the executor's accounts. 
 
 This executor has, (as most executors do,) 
 kindly undertaken the execution of the 
 trusts imiKised upon him by the will; and 
 this litigation, as an incident, has grown 
 naturally, and, I would say, almost neces- 
 sarily, out of his administration of the es- 
 tate. And it is but sheer justice that he 
 should be re-imbursed and made whole for 
 all outlays that were reasonably incident to 
 the execution of the trust; not as compen- 
 sation, but as a part of the expenses of its 
 administration. This, I conceive, not to be 
 inconsistent with the decision in Wham v. 
 Love, (Rice Eq. 51,) which lays down the 
 same rule. But, it is said, that Wham v. 
 Love decides, that the executor is not enti- 
 tled to be re-imbursed for his counsel fees, 
 where the litigation has been raised for his 
 own benefit. There can be no rule more un- 
 deniably just and fair. But I think it would 
 be an unwarranted construction of the deci- 
 sion in that case to .say, that where an ex- 
 ecutor is obliged, for his own security, to 
 resort to the aid of this Court, for the set- 
 tlement of an estate which he has adminis-
 
 HEATH V. BISHOP 
 
 tered, he shall forfeit- re-iniburscuient for 
 counsel fees, (otherwise deemed just and 
 reasonable,) because tliere aris«' in the set- 
 tlement of his aecounts. or in the adjustment 
 
 ♦45 
 of the ♦eciuities between himself and Ids ces- 
 tui que trusts, (|uestions in which his inter- 
 est and theirs are aida^oidstic. Such (lues- 
 tions arise in almost every case of this char- 
 acter. I think a rule" may be laid down as 
 reasonable as it is simple; that an execu- 
 tor should be ailoweil reimbursement for a 
 reasonable counsel fee paid by him for the 
 settlement of the estate in equity, where the 
 aid of the Court a|)pears necessary and proi^- 
 er. If he has any knotty points or inqiortant 
 interests of his own, for which he pays ex- 
 tra fees, the excess should be paid out of his 
 own iwcket. 
 
 It is ordered and decreed, tliat the circuit 
 decree be nioditieil, and that the report of the 
 commissioner be re-connidtted. and he l)e in- 
 .structed to correct his report, by allowing 
 the counsel fee, paid by the executor, as a 
 credit on his accounts. In all other respects 
 the appeal is disnnssed and the circuit de- 
 cree attirmed. 
 
 JOILNSTON. Ch. I am satistied with my 
 ruling in the decree, upon all points, except 
 the counsel fet'. 
 
 On that sul)ject. I am not williiiu to abridge 
 the principle of Wham v. Love. All expendi- 
 tures for the benefit of an estate, in the hands 
 of the executor, are proper charges, and 
 should be allowed him, in passing his ac- 
 counts. I suppose that where a bill is filed 
 for the direction of the Court, or to clear 
 out incumbrances, — or, in short, in any case 
 where the decree of the Court is necessary 
 to remove doubts and settle or distribute the 
 estate, — fees paid by the executor, in such 
 eases, should be siiiowed him: and this would 
 be no violation of the doctrine of Wham v. 
 Jvove. 
 
 My objection to the allowance of the fee. 
 in this case. was. that it was not expended in 
 promotion of the interests of the cestui que 
 tru.sts: at least a very large part of it. 
 
 liut there is a circumstance in the case 
 which reconciles me to the allowance of it. 
 It is. thar the estate has receivi'd tiie benetit 
 of the mortgage taken by Douglass Kobertson 
 from his co-executor. The title in that prop- 
 erty was, by the mortgage, in Douglass: and 
 it would seem ineipiitable to take it from 
 
 *46 
 him and confer *its benehts upon the lega- 
 tees generally, witimMt allowing him the ex- 
 pen.ses claimed by him. 
 
 DUNKIX, Ch.. concurred. 
 
 WARDLAW. Ch., Iiaving been of counsel, 
 exjiressed no opinion. 
 Decree nuKlitied. 
 
 4 Rich. Eq. 46 
 
 JA.MK.S IIK.VTll V. .JOHN O. RISlIoT, 
 
 J<tll.\ lUSllOI'. S.n., and lUKKKL 
 
 lusnor. 
 
 (Columbia. Nov. an J Deo. Term. Is'il.) 
 
 [Tru.sfa <G=3ir,l.] 
 
 'I'lioiiLili the mode of procedure for the re- 
 lief of tile creditor is difTerent. eipiitalile estates 
 are as much subject to the payment of the debts 
 of the etstni que trust, to the extent of his 
 I)re.sent vested interest in severalty, as legal 
 estates are to the payment of the debts of the 
 owner. 
 
 |Kd. Note. — For other cases, see Trusts, Cent. 
 Dig. S l!in; Dec. Dig. C=>151.J 
 
 [Tnints <G==>ir)l.l 
 
 Tliei-e is no form or mode by which property, 
 with the present vested right of sev(>ral enjoy- 
 ment, as to eitlier the corpus or the incoine, may 
 be given t(( aii<i eiijoye<l l)y one. and not lie lia- 
 ble for till- payment of his delits :— infants and 
 married wonieii cunstituting no exceptions, for 
 they are incapable of contracting debts. 
 
 IKd. Note.— Cited in Howe v. (Jngu'. •">- S. 
 C. 101. 2U S. K. :5J»4; Ilumphrev v. Canqibel), 
 51) S. C. 4:5, 4G, 37 S. E. liG. 
 
 Tor other cases, see Trusts. Cent. Diz. SS 11I5, 
 lJir.'.%, 1!»7: Dec. Dig. <S=1."1.1 
 
 [Wills (£=j(54S.l 
 
 Send)le. that a limitation or condition an- 
 nexed to a devise or fiilt, that the est.ite shall 
 revert, or pass to some third person, on the 
 iiankruptey or insi>lven'y of the (irst taker, or 
 on an attenqit by a creditor to subject it to the 
 liavinent of his debt, would be valid: or. in 
 cases of trust, that, by the maciiinery of a 
 shifting use, or a jiower of revocation, "the es- 
 tate may i)e made to pass away frnni tiie first 
 taker ui)on the same contingencies. 
 
 [Ed. Note.— Cited in Jones v. Heliiuser, 91 
 S. C. 4, 7.3 S. E. 1(>4!>. 
 
 For other cases, see Wills, Cent. Dig. § 1539 ; 
 Dec. Dig. <©=5(;4S.] 
 
 \Trusts <®=151.] 
 
 If the rents and profits are to be paid to the 
 cestui que trust, from time to time, at the pure 
 and aiisohite discretinn of the trustee, or as 
 some oilier appointor to uses. nniy. at his dis- 
 cretion, appoint and dir K-t. with a linutati.n ov 
 powei- to ap|)oint over to other use.s. such an 
 interest, not being vested in the cestui que trust, 
 and beiutf vague, uncertaui and undefined, can- 
 not be subjected to the payment of his debts; 
 semlile. 
 
 I Ed. Note.— Cited in People's Iamxu & Ex- 
 change liank V. (Jarlinston. 54 S. C. V24 32 
 S. E. 513. 71 Am. St. Kei). SOO. 
 
 For other cases, .see Trusts. Cent. Di^'. SS 195. 
 1951/0,197; Dec. Dig. (S=>151.J 
 [Trusts <S=3l51.1 
 
 Or, it seems, if the rights of tlie delitor are 
 so nungled with those of other beneficiaries that 
 they cannot be .separated without injiiiy to his 
 eo-cestui (|Ue trusts.— inasmuch, as theie is no 
 present ri;,'lit of several enjovnu-nt. and there can 
 be no iiartitinii. the interest of such debtor can- 
 not lie subje<-ted to the payment of his debts. 
 
 I Ed. Note.— For other cases, see Trusts. Cent. 
 Dig. S§ 195, 195>..., 197; Dec. Dig. (0=5151.] 
 [('rrilitfirs' Suit ©=>,S.] 
 
 Oift of slaves to a trustee, in trust, "to i)ay 
 over to J. (J. yearly," iV:c., "the net iirolits or in- 
 conn- from the lidior or liire of s.iid slaves, for 
 th«' better support and maintenance of the said J. 
 (i.," with remainder, in fee. after the death of 
 J. (i.. and with this ciaidition. that the trustee 
 
 *47 
 shall permit the donor, "if it *shall be absolnte- 
 
 ®:»For other cases see same topic and KEJf-NUilBER in all Key-Numbered JJigests and Indexes 
 
 19
 
 *47 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 ]y necessary for liis support, to use, keep and 
 enjoy the sairl slaves during his riatural life," 
 »!cc. : J. (jr. having no property upon which ex- 
 ecutions against him could be levied, and being 
 out of the State.— //eW, that his interest in the 
 slaves was liable in equity to the claims of his 
 creditors ; that a bill filed for that purpose 
 should be a creditors' bill, and all the creditors 
 should be called in. 
 
 [Ed. Note.— Cited in Nelson Carlton & Co. v. 
 Felder, 6 Rich. Eq. 69 ; Rivers v. Thayer, 7 
 Rich. Eq. 167 ; S. S. Farrar & Bros. v. Hasel- 
 den, 9 Rich. Eq. 337 ; Curiae v. Rembert, 37 
 S. C. 221, 15 S. E. 954. 
 
 For other cases, see Creditors' Suit, Cent. 
 Dig. § 38; Dec. Dig. <S=:3S.] 
 
 [Trusts (g==>151.] 
 
 Held, further, that the donor had no right to 
 re-take, use and keep the slaves, he not having 
 shown that they were absolutely necessary for 
 his support. 
 
 [Ed. Note. — For other cases, see Trusts, Cent. 
 Dig. §§ 195, 1951/2, 197; Dec. Dig. <©=:>151.] 
 
 Before Wardlaw, Ch., at Chester, July, 
 1851. 
 
 >Vardlaw, Cli. The plaintiff is a judgment 
 creditor for $02.13, with interest thereon 
 from January 15, 1834, and costs, $8.90, of 
 John G. Bishop, who is absent from the State, 
 and without property here, upon which a fi. 
 fa. could be levied ; and plaintiff seeks, in 
 this proceeding, to obtain satisfaction of his 
 judgment from certain equitable assets ol 
 his debtor. 
 
 John Bishop, senior, father of John G. 
 Bishop, on February 3, 1846, conveyed to 
 Burrel Bishop a negro woman, Hannah, 
 about 45 years old, and a negro boy, Henry, 
 about 12 years old, in trust, "to pay over to 
 John G. Bishop yearly, and from year to 
 year, or as much oftener as necessary or con- 
 venient, the net profits and income from the 
 labor or hire of said Hannah and Henry, for 
 the better support and maintenance of the 
 said John G. Bishop," with the farther dis- 
 position of the fee in said slaves, after the 
 death of said John G. Bishop, and with this 
 condition — that the trustee "shall and do 
 permit and suffer me. the said John Bishop, 
 if it shall be absolutely necessary for my sup- 
 port, to use, keep and enjoy all and singular 
 the said slaves, Hannah and Henry, or the 
 value of them, or whatever part I may think 
 necessary during my natural life, without 
 paying anything for the same or in respect 
 thereof, and not otherwise; and that from 
 and after my decease, to be held, enjoyed 
 and disposed of as hereinbefore provided." 
 
 It appeal's that the trustee has in his 
 hands notes, &c., to the amount of $240, and 
 cash to the amount of $25, arising from the 
 hire of said slaves. The petition is taken 
 pro confesso against John G. Bishop, who left 
 the State some years ago. Burrel Bishop, 
 
 *48 
 *the trustee, in his answer, admits the facts, 
 and claims connnissions. John Bishop, sen- 
 ior, in his answer, sets forth, that his pur- 
 pose in the execution of the trust deed, was 
 to provide support and maintenance for his 
 
 son. John G., who is thriftless, of understand- 
 ing not sound, and liable to imposition by 
 artful men; and claims that, as he, the gran- 
 tor, is now aged, of feeble health, and limit- 
 ed estate, the income from said slaves should 
 be appropriated, under the condition, to his 
 own supi)ort. No evidence in support of the 
 answer was offered, although it seemed to be 
 taken for granted that John Bishop, senior, 
 was a poor man, but not in absolute in- 
 digence. 
 
 It was suggested at the bar, that thei'e 
 were other unsatisfied creditors of John G. 
 Bishop; but no petition nor proof was offer- 
 ed in their behalf. I have no difficulty in 
 overruling the particular defence made in the 
 answer of John Bishop, senior ; but I have 
 some difficulty in recognizing the equity of 
 the plaintiff' to .satisfaction of his demand 
 from this trust fund. 
 
 Conceding that the plaintiff" has so far ex- 
 hausted his legal remedies as to be entitled 
 to proceed against the equitable assets of 
 his debtor, (Perry v. Nixon, 1 Hill Ch. 335, 
 and the cases there cited,) it may still ba 
 doubted whether he can proceed against this 
 particular interest of defendant. Surely a 
 father may provide a maintenance for a 
 prodigal and insolvent son beyond the reach 
 of creditors. The plaintiff' here cannot pre- 
 tend that he trusted John G. Bishop on the 
 faith of this interest, for the credit was ex- 
 tended long before the execution of the deed 
 conveying the two slaves. The property is 
 settled by a father of small means, for the 
 support and maintenance of his son; and it 
 is manifest that the income is not more than 
 adequate for this purpose. "W'here the whole 
 income of a trust estate is at the disi)osal 
 of a husband, this Court may still reserve 
 a portion from the grasp of his creditors for 
 the maintenance of his wife and family, 
 (Bethune v. Beresford. 1 Des. 174 ; Jones v. 
 Fort, 1 Rich. Eq. 50.) Many men as strongly 
 need the protection of the Court from the 
 
 *49 
 consequences of tiieir *improvidence, as mar- 
 ried women do from the improvidence of hus- 
 bands. 
 
 If John G. Bishop were within th^^ jurisdic- 
 tion and without other means of maintenance 
 than from the hire of these two slaves, I 
 should probably reject the prayer of this 
 petition. But he makes no defence here ; it 
 does not appear that he has claimed any 
 portion of this income for some years; and, 
 for all that I know, he has abundant main- 
 tenance elsewhere than in this State. With 
 some hesitation, I shall grant the plaintiff 
 reliCi. 
 
 It is ordered and decreed, that Burrel Bish- 
 op, from the funds in his hands as trus- 
 tee of John G. Bishop, pay to the plaintiff" the 
 principal, interest and costs due upon his 
 judgment, and the costs of this petition. 
 
 The defendants appealed, on the grounds: 
 
 20 
 
 ^=»For oilier cases see same lopii; aud kE V-NU.VIBEU in all Key-Numbered Digests and Indexes
 
 IIEATII V. BISHOP 
 
 *51 
 
 1. Because the fund out of whifli the peti- 
 tioner seeks iiayment of liis dclit, lu'liij; creat- 
 ed for the express purpose of supporting and 
 UKiintaininf: John Kishop, jr., it is contrary to 
 the principles of eipiity to lend its aid to de- 
 feat the object of the donor's i)ounty, by sub- 
 jecting said fund to the iiayment of debts of 
 John Bishop, jr., and especially those which 
 existed lonj; anterior to the creation of said 
 trust. 
 
 2. Because the donor. John Bishop, senior, 
 having reserved to himself the rij^ht to .said 
 fund, in case the same should be necessary 
 for his .support and maintenance, and the said 
 donor l>eing still alive, and having the right 
 to claim the benefit of such reservation, this 
 Court has no power to defeat such right by 
 ordering said fund to be paid to creditors of 
 cestui fpie trust. 
 
 3. Becausp the said decree should have or- 
 dered said fund, (in ca.se tlie same is subject 
 to the payment of the del)ts of J. Bishop, jr.,) 
 to be distributed among all his creditors in 
 e^iuitanle parts, and should have ordered a 
 reference, with leave for the creditors to pre- 
 sent and establish their demands. 
 
 McAliley, Boyce, for appellants. 
 Boylston, Williams, contra. 
 
 *50 
 
 ♦The opinion of the Court was delivered by 
 
 DARGAN, Ch. As a general rule, with 
 some few exceptions, it may be stated, that 
 the attributes with which the laws of this 
 country have invested the institution of 
 property, attach alike to equitable as to legal 
 estates (a). Under the maxim, that e(iuity fol- 
 lows the law, the system of trusts has been 
 moulded into an almost perfect analogy and 
 correspondence with legal estates. Equitable 
 interests admit of the same modifications as 
 to the quantity of right, duration, time, con- 
 ditions and modes of enjoyment, that apper- 
 tain to estates at law. The same canons of 
 descent as to real property apply to both 
 systems. They are in the main subject to 
 the same rules of succession. They may alike 
 be held in severalty, in joint-tenanc.'ii^ copar- 
 cenary, and in common. They are devisable 
 and assignable, (b) and what is more ger- 
 main to the present emiuiiy, they are both 
 subject to the payment of debts; though the 
 mode of procedure for the relief of the ( hmH- 
 tor is different. 
 
 There are certain ideas tlnit are insepara- 
 ble from the institulion of proiterty. among 
 the most pi'ominent of which are, the right 
 of alienation, and its being subject to the 
 pavment of debts. In all cases like the pres- 
 ent, the enquiry must be, whether the debtor 
 has a vested, determinate interest in the e(iui- 
 table estate sought to be subjected, with tiie 
 present right of enjoyment in severalty. If 
 
 he has. the right of the creditor, follows as 
 a corollary in mathematical .science does the 
 main propo.sition. Under the above qualiflca- 
 tions and conditions, the creditor is entitled 
 to relief, and in some form or other, the 
 debtor's estate, be that more or le.ss, should 
 i>e disposed of or sequestrated for the satis- 
 fai'fion of his debt. 
 
 I am not aware of any form or mode by 
 which proi)erty, with the present right of sev- 
 eral enjoyment, as to either the cori)us or 
 the income, may be given to and enjoyed l)y 
 one, and not be liable for the payment of his 
 deiits. The case of married women, and oth- 
 er persons under disability, constitute no ex- 
 ceptions, for such persons are incapable of 
 contracting debt.s. 
 
 *51 
 
 *A testator or donor may give property 
 with a limitation or condition annexed, that 
 it shall revert, or pass to .some third person, 
 on the bankruptcy or insolvency of the first 
 taker, or on an attempt by a creditor to sub- 
 ject it to the payment of his debts : and such 
 a limitation would lie valid (c). Or in cases 
 of trust, by the machinery of a shifting use, 
 or a power of revocation, the estate might 
 be made to pass away from the first taker, 
 upon the same or any other contingencies 
 within tlhe period prescribed against perpetui- 
 ties. It is obvious that such cases as these 
 constitute no exception. For the very cir- 
 cumstances that cause the equitable estate of 
 the debtor to be liable, cause it also to pass 
 from him and cea.se to be his property. In 
 the in.stances supposed, the insolvency of the 
 debtor, or the attempt of the creditor to 
 make the proi)erty liable, destroys the debt- 
 or's estate. When the creditor stretches 
 forth his hand to grasp it, it eludes him and 
 flits away like a shadow. 
 
 If a trust be created with the view of pro- 
 viding again.st the improvidence of the bene- 
 ficiary, and it be directed that the rents 
 and profits be paid to him from time to time, 
 at the pure and ab.solute discretion of the 
 trustee, or as some other appointor to uses, 
 may at his discretion appoint and direct, with 
 a limitation or power to appoint over, to oth- 
 er uses, such a vague, undefined and uncer- 
 tain interest in the beneficiary, could not be 
 made subject to his debts: becau.se such an 
 interest does not amount to property vested 
 in him. Or if, in the scheme of the trust, 
 the rights of a debtor are so mingled with 
 those of other beneficiaries, that they cannot 
 be separated without injury to his co-cestui 
 que trusts, and thus destroying the scheme 
 of the settlement; inasmuch as there is no 
 present right of several enjoyment, and the 
 Court would refuse a partition, the interest 
 of an indebted beneficiary of such a trust 
 
 (a) Butler's note to Co. Litt. 
 (6) 2 Story Eq. § 974. 
 
 l-'SO, b. 
 
 (c) Domraett v. Bedford, 3 Ves. 140, (> T. R. 
 (!S4; Sluo v. Halo, l:? Ves. 404: Yariiold v. 
 .Miiorliniisc. 1 Russ. & Mylue, 3GS; 1 Chit. 
 Gen. I'r. GO. 
 
 il
 
 *51 
 
 4 RICHARDSON'S lOQUITY REPORTS 
 
 could not be made subject to the payment of 
 his debts. I do not affect to say, that I have 
 laid down all the exceptions, or seeming ex- 
 ceptions, to the rule, that the debtor's equita- 
 ble estates and interests may, in this Court, 
 
 *52 
 be subjected to the payment of the *claims of 
 his creditors. But I have said enough to 
 shew, that there is no qualification of the 
 rule which would protect, or exempt from 
 such liability, the interest of the defendant, 
 John G. Bishop, in the trust estate created by 
 the deed of liis father, John Bishop. Before 
 I leave this branch of the case, it will be 
 proper for me to cite some of the cases, on 
 the authority of which the foregoing observa- 
 tions are made. 
 
 In Brandon v. Robinson, (18 Ves. 429,) the 
 trust, (which was created by will,) was that 
 the eventual share of the testator's son, 
 Thomas Goom, should be laid out by the trus- 
 tees in the public funds or government secu- 
 rities, "and that the dividends, interest and 
 produce tliereof, as the same became due 
 and payable, should be paid by them, from 
 time to time, into his own proper hands, or 
 on his proper order or receipt, subscribed 
 with his own proper hand, to the intent that 
 the same should not be grantable, transfera- 
 ble, or otherwise assignable, by way of antici- 
 pation of any unreceived payment or pay- 
 ments thereof, or any part thereof;" and the 
 will directed, that upon the decease of Thom- 
 as Goom, the trustees should pay the said 
 share and dividends, &c., to such persons as 
 would, in the course of administration, be 
 entitled to any personal estate of the said 
 Thomas Gooni, as in cases of intestacy. 
 
 Thomas Goom became a bankruiit. and the 
 plaintiff was the surviving assignee under 
 the commission; and the will prayed an ex- 
 ecution of the trusts of the will and an ac- 
 count, and that the estate may be sold and 
 the clear residue ascertained, and that the 
 plaintiff might receive such part or share 
 thereof, or interest therein, as he shall be 
 entitled to as assignee, &c. To which bill, the 
 defendants, the trustees, put in a general 
 demurrer. The Lord Chancellor (Eldon) said : 
 "There is an obvious distinction between a 
 disposition to a man until he becomes a bank- 
 rupt, and then over, and an attempt to give 
 him i)roperty and to prevent his creditors 
 from obtaining any interest in it, though it 
 is his." "There is no doubt, that property 
 may be given to a man until he shall become 
 l)ankrupt. It is equally clear, generally 
 speaking, that if property be given to a man 
 
 *53 
 for his life, the donor cannot *take away the 
 incidents to a life estate. And, as I have ob- 
 served, a disposition to a man until he shall 
 become bankrupt, is (juite different from an 
 attempt to give to him for life, with a proviso 
 that he shall not sell or alien it. If that con- 
 dition is so expressed, as to amount to a 
 
 22 
 
 ] limitation, reducing the interest short of a 
 I life e.state, neither the man nor his assignees 
 can have it beyond the period limited." 
 
 In Piercy v. Roberts, (1 Myl. & K. 4,) the 
 testator betiueathed a legacy of £400 to hi& 
 executors, in trust, to pay the same to his 
 son, Thomas Jortin Roberts, in such smaller 
 or larger portions, at such time or times, 
 and in such way or manner, as they, or the 
 survivor of them, should, in their judgment 
 and discretion, think best. Thomas Jortin 
 Roberts became insolvent, and took the bene- 
 fit of the insolvent debtor's Act. The bill was 
 filed by the assignee of the insolvent debtor's^ 
 estate against the executors, to recover the 
 legacy and interest, or so much thereof as 
 remained unpaid. The Master of the Rolls 
 (Sir John Leach) said: "The question is, 
 whether this legacy passed to the assignee 
 of the insolvent upon the insolvency of the 
 legatee, or whether it may remain in the 
 hands of the executors, to be applied, at their 
 discretion, for the benefit of the legatee. 
 The insolvent being the only person sub- 
 stantially entitled to this legacy, the attempt 
 to continue in him the enjoyment of it, not- 
 withstanding his insolvency, is in fraud of 
 the law. The discretion of the executors 
 determined by the insolvency, and the prop- 
 erty passed by the assignment." 
 
 In Graves v. Dolphin, (1 Simons, GG.) the 
 testator, Benjamin Graves, gave his real 
 and personal estates to trustees, in trust, 
 (among other tilings,) to pay an annuity of 
 £500 to his son, John Graves, for the term of 
 his natural life. The testator then i)i'oi'ee(led 
 to declare that the said yearly sum of £.500, 
 given to his son, John Graves, for his life, 
 was intended for his personal maintenance 
 and suiiport during his natural life, and 
 should not, on any account or pretence what- 
 ever, be subject or liable to the debts, engage- 
 ments or incumbrances of his said son; but 
 that the same should be, for the purposes 
 
 *54 
 aforesaid, from time to time, when it *should 
 be due, paid over into the proper hands of 
 his son only, and not to any other person or 
 persons whatsoever. He further directed, 
 that the receipt of his son only, should be a 
 good and sutficient discharge to his trustees 
 for the said annuity. John Graves became a 
 bankrupt, and his assignee sold the annuity 
 to the defendant. And the question was, 
 whether the annuity passed to the assignee 
 by virtue of the assignment of the commis- 
 sioners. It was contended on the part of 
 John Graves, that the annuity did not pass/ 
 His counsel relied on the direction in the will, 
 that the annuity should be from time to time 
 paid into the proper hands of John Graves, 
 and that his receipt only should be a suffi- 
 cient discharge for the same. 
 
 The Vice Chancellor, (Sir John Leach,) 
 said: "The testator might, if he had thought 
 fit, have made the annuity determinable by 
 the bankruptcy of his son; but the policy of
 
 HEATH V. BISHOP 
 
 the law does not permit property to be so [ 
 limited, that it shall contimie in the enjoy- ! 
 nient of the hankrupt, notwithstandint; his 
 bankruptcy." The judf^inent was that the de- 
 fendant was well entitled to the annuity. 
 
 in Green v. Spieer, (1 Uuss. & M. '-V.io,) tne 
 Master of the Kolls decided the .same i)oint 
 in favor of an assif,'nee under the insolvent 
 debtor's Act, although the trustee had a 
 discreti<in as to the time and manner of ap- 
 plyinj^' the rent.s and profits of the trust estale 
 to the support and maintenance of the heiie- 
 ticiary of the trust, on tiie ground that the 
 whole beneficial interest in the rents and 
 profits had vested in him. 
 
 The case of Hallett v. Thompson, (5 I'ai^e, 
 583,) was a suit in behalf of the plaintiff, 
 who was a judgment creditor of the defend- 
 ant, Thompson. The bill was filed after the 
 return of execution unsatisfied, for the recov- 
 ery of the debt out of a lej;acy by the testa- 
 trix, in the following words: "I give and i)e- 
 queath unto my friend, Jeremiah Thompson, 
 of the city of New York, the sum of $4,000, 
 which sum I nevertiieless order my executors 
 to retain in their own hands, and put at in- 
 terest, and pay the interest tiiereof yearly to 
 the said Jeremiah, during his natural life; 
 unless the said Jeremiah shall, during his 
 
 *55 
 lif^ by an instrument under iiis *hand and 
 seal, require the payment of the said legacy 
 to himself." In that case, she ordered the 
 legacy and interest to be paid over to the 
 legatee. She then proceeds to direct, if the 
 legacy should not be paid over to Thompson 
 during his life, it should be paid to such 
 person or persons as he shouUl by his last 
 will appoint ; and in default of such testa- 
 mentary direction by him, it was to be paid 
 to his heirs at law. The testatrix further 
 declared it to be her will, that neither tiie 
 legacy, or the interest thereon, should, in 
 any case, be liable to Thompson's creditors 
 for any debt due by him. The complainant 
 prayed that Thompson might be decre(>d to 
 execute such an instrument, as was recpiired 
 by the will to obtain payment of the legai-y 
 from the executors, and that the complain- 
 ant's judgment nnght be paid out of the leg- 
 acy and the interest due thereon. The defend- 
 ant, Thompson, put in a general demurrer to 
 the liill, for the want <(f e(|uity. The Ciiancel- 
 lor said: "The legacy in this case is perfectly 
 under the control of Thompson, the legatee, 
 so that he may ol»tain payment thereof when- 
 ever he pleases. This power to comi)el pay- 
 ment is a beneficial interest in the legatee, 
 which would pass to the assignees under t.ie 
 English bankrupt and insolvent debtor's 
 Acts." After connnenting upon some of the 
 provisions of the New York revised statutes, 
 that were thought to be applicabU* to the 
 case, and citing some of tlie English ca.ses, 
 the Chancellor proceeds to .say: "Independ- 
 ent of any statutory provisions, thereftre, I 
 have no doubt it would be comiietent for this 
 
 Court, and its imperative duty, to compel 
 the defendant, Thomp.son, to execute this 
 beneficial interest, so as to em\ble the com- 
 plainant to obtain payment of the legacy, to 
 he applied in satisfaction of the judgment, 
 as far as it would go." 
 
 "As a general rule," he further observes, 
 "it is contrary to sound public pt)licy to per- 
 mit a per.son to have tiie absolute and uncon- 
 trolled ownership of property for his own 
 purposes, and to Ik' aide at the same time to 
 keep it from his honest creditors." The 
 demurrer was overruled, and the complain- 
 ant had a decree for the .$4.(X)0 in the hands 
 of the executors, to be api)lied in .satisfaction 
 of ills judgment. 
 
 *56 
 
 *The case last cited, suggests a reference, 
 (which I consider not irrelevant,) to the 
 course which this Court adopts for the relief 
 of creditors, against an insolvent debtor, 
 who has, under a trust, a general power of 
 appointment to uses. 
 
 Mr. Sugden, in his work on powers, (page 
 335,) says: "Of course the i)eneficial interest 
 a man takes under the execution of a power, 
 forms part of ids estate, and is, like the re.st 
 of his property, subject to his debts ; nor, 
 indeed, can an appointment be made, so as 
 to protect the funds from the debts of the 
 appointee." 
 
 "But etpiity goes a step farther, and holds, 
 that where a man has a general power of 
 appointment over a fund, and he actually 
 exercises the power by deetl or by will, the 
 property appointed shall form part of his 
 assets, so as to be subject to the demands of 
 his creditors, in preference to the claims of 
 his legatees or ai)pointees." He proceeds to 
 say, that the power nmst be actually execut- 
 ed, as equity never aids the non-execution of 
 a power (d); and to draw a distinction as to 
 the rights of voluntary appointees to uses, 
 and those for valuable consideration, the 
 claims of creditors prevailing against the for- 
 mer and not against the latter. This princi- 
 ple of subjecting the appointed estate or fund 
 to the claims of creditors over those of the vol- 
 untary appointees, proceeds upon the ground, 
 that a general power of appointment gives to 
 the appointor a beneficial interest in the 
 fund, which amounts to property in him ; 
 and that ex equo et bono, his creditors have 
 a right to claim all his estate if neces.sury, 
 to be ai)plied in satisfaction of their demands. 
 
 I will now turn my attention more par- 
 ticularly to the case before the Court. John 
 Bishop, by his deed, dated February :{, 1S4(J, 
 for love and affection and a nominal pecun- 
 iary consideration, conveyed to lUirrell T. 
 Bishop, his heirs, executors and administra- 
 tors, two negroes therein particularly de- 
 scrilxnl, in trust, to pay over to Joiui (J. Bish- 
 op, yearly and from year to year, or as much 
 oftener as necessary or coiwenient, the nett 
 
 j (</) Holmes v. Cogliill, 12 Yes. 2«J0. 
 
 23
 
 *56 
 
 4 RICIIARDSONS EQUITY REPORTS 
 
 profits find hire of t.ie negroes, for the better I 
 
 -57 
 support and maintenance of the *said John G. 
 Bishop. The deed then gives to the trustee 
 under certain circumstances, amounting al- 
 most to an absolute discretion, the power to 
 sell the negroes ; and provides, in case the ne- 
 groes should be sold, that the trustee shall 
 pay to John G. Bishop the interest that 
 should accrue on the fund arising from the 
 sale. The trust further declares, that at the 
 death of the .said John G. Bishop, the trustee 
 "shall divide one-half of rhe price of the ne- 
 groes to the issue, the children tiien alive, 
 of the said John G. Bishop; the other half 
 to the trustee and others, the donor's chil- 
 dren. It was further declared, that if John 
 G. Bishop should leave no lawful issue of 
 his body begotten alive at the time of his 
 death, the share given to his children should 
 be eqxially divided among Burrel T. Bishop 
 and others, the donor's children. There was 
 a farther trust declared in the deed, by which 
 the donor was to be permitted, if absolutely 
 necessary for his support, to keep and use the 
 negroes, or the value of them, "without any 
 charge for such use, during his natural life ; 
 and at his death to be held, enjoyed and dis- 
 posed as before directed." 
 
 It is not shewn or pretended, that the use 
 of the negroes, or fund arising from their 
 sale, is absolutely necessary or indeed nec- 
 essarj' in any sense for the support of Jolm 
 Bishop, the donor. John G. Bishop is alive, 
 but not a resident of the State. The remain- 
 der-men have no present right of enjoyment. 
 The complainant has obtained a judgment 
 against John G. Bishop; upon which a fi. fa. 
 has issued, and it has been returned nulla 
 bona. It has been proved that the defend- 
 ant has no other property in the State upon 
 which satisfaction can be made of the exe- 
 cution. And the complainant, by petition 
 setting forth these facts, prays that the 
 income which John G. Bishop has for life in 
 the aforesaid ti'ust estate, may, by a decree 
 of this Court, be made subject to the satisfac- 
 tion of his judgment. 
 
 After the review which I have made of 
 tlie authorities which bear on this subject, 
 it would be supertluous to enter into any 
 further argument, for tlie purpose of shew- 
 ing that there is no ground upon whioli the 
 claim of the creditor can in this instance 
 
 *58 
 *be resisted. Many of the cases that have 
 been cited are nuu-h stronger than this, in 
 favor of the beneficiary of the trust. All 
 the cases that bear an analogy to the case 
 before the Court, go to shew that where the 
 beneficiary has a right to the present en- 
 joyment, in severalty of the benefits con- 
 ferred upon him by the trust, the creditor 
 Ims an equity that will not be disregarded 
 by the Court, liowever elaborate may be the 
 attempt to deprive such interest of the in- 
 cidents of property, and thus to exclude the 
 
 24 
 
 claims of creditors. The declaration that 
 the provision in the trust was for the better 
 support and maintenance of John G. Bishop, 
 if it was intended to exclude the claims 
 of creditors, will be ineffectual for that pur- 
 pose. For we liave seen, that schemes mucli 
 more skilfully constructed for that object, 
 and with the most studied forms of lan- 
 guage, have been overthrown and creditors 
 let in. 
 
 It is the opinion of this Court, that the 
 income to which John G. Bishop is entitled, 
 in the trust estate created hy the deed afore- 
 said, is subject to the claims of his credi- 
 tors, and that the circuit decree is right 
 in adjudging that the complainant's judg- 
 ment should be paid out of the same. 
 
 Having now, at greater lengtli than I 
 liad intended, disposed of the merits of the 
 cause, I will briefly advert to a matter of 
 practice. It is the oi)inion of tlie Court, 
 that this proceeding should have been in the 
 nature of a creditor's bill ; that is to say, 
 the petitioner should have sued in behalf 
 of himself and the other creditors, who 
 would come in and make themselves parties 
 to the cause, and ofter to contribute to the 
 expenses thereof. Whenever this Court 
 takes hold of an equity for the purpose of 
 giving relief to a creditor, it will do ro in 
 l)ehalf of all the creditors, and will marshal 
 the fund among them according to their I'e- 
 spective rights. It is a wholesome rule of 
 practice and will be insisted on. It prevents 
 multiplicity of suits, the accumulation of 
 costs, and injustice among the creditors 
 themselves. It also saves the debtor's es- 
 tate from unnecessary charges, and its en- 
 forcement will be a mercy to him. 
 
 No question as to this point was made at 
 *59 
 the circuit trial ; but *it was suggested, 
 that there were other creditors. These cred- 
 itors, if any such exist, will doubtless be 
 stirred up, after this decision, to prosecute 
 their claims. It would be best to dispose 
 of them all at once and in one proceeding. 
 This Court will do now what should have 
 been done on the circuit. It will order the 
 petition to be amended, so as to make it a 
 creditor's petition, and direct notice to be 
 given to creditors, after the usual form, to 
 appear and present and prove their de- 
 mands. And after the report on the claims 
 of creditors has come in, the circuit Court 
 will proceed to give judgment in their favor 
 according to their respective rights. 
 
 It is ordered and decreed, that the circuit 
 decree be affirmed so far as it adjudges the 
 fund in question to be subject to the pay- 
 ment of the claims of the creditors of John 
 G. Bishop; and so far, also, as it adjudges 
 that the plaintiff has proved his debt. 
 
 It is further ordered and decreed, that 
 the plaintiff amend his petition, so as to 
 make it conform to the character of a credi. 
 tor's bill.
 
 LONG V. CASOX 
 
 »60 
 
 It is further ordered and decreed, tliut 
 when the petition sluill luive l)een so aniend- 
 ■ed, tlie eonnnissiont'r ;;ive notice to credit()rs, 
 throu^rli tlie ne\vsiiai)er i»ress, to appear Ite- 
 fore him and prove their demands, on oatli. 
 on or before tlie first day of .June next, and 
 that tlu' said, conunissioner report tlu-rcon. 
 
 It is further ordered and decretMl. tliat tlie 
 case he renumded to the circuit Court, for 
 the purpose of hearing: said report, and of 
 adjud;:inK the claims of creditors that may 
 be set forth therein. marslijillin« the fund 
 among them accordini; to their respective 
 rights. 
 
 It is further ordered and decreeil, that if 
 no other creditor shall ]>resent and i)rove a 
 claim, or if the fuml he sufHcient to pay 
 all the claims that are presented and prov- 
 ed, the circuit Court proceed to give a final 
 decree in hehalf of the petitioner, and such 
 other creditors as may have presented and 
 proved their demands, for the whole amount 
 of their respective claims. 
 
 JOHNSTON. DT'NKIN. and WARDLAW, 
 CC. concurred. 
 Decree modified. 
 
 4 Rich. tq. *60 
 
 ♦JAMES LONG and Wife v. J. A. M. CASON. 
 
 (Columbia. Nov. and Doc. Term, 1851.) 
 
 [GtinifUfin and Ward (©=3(51.] 
 
 The dofondaut. bciiif; administrator of an 
 estate in which plaintilt had an interest as 
 distrilnitee. \va.s apijointed by the Court of Ordi- 
 nary guardian of the plaintiff: in defendant's 
 returns as guardian, he charged himself with 
 the amount in his hands as administrator, but 
 omitted to charge himself with interest: fur the 
 balance appearing to be due on his returns, the 
 ordinary made an ex parte decree against him, 
 and for the amount of the df-cree he confessed 
 judgment to the ordinary: other persi>iis were 
 then appointed by. the ''ourt of K(iuity. '.;uar(l- 
 ians of the piaintilY, and they received from 
 the sheriff the amount of the judgment con- 
 fessed to the ordinary: shortly Jtfter plaintiff 
 arrived at af;e, but more than four years after 
 the date of the decree and the n-i-eipt to the 
 sheriff", plaintiff conunenced this ])rocee(iiiig to 
 recover from defendant the interest 'which he 
 had omitted to char;:e himself with in his re- 
 turns: — Held, that neither the decree of tlie ordi- 
 nary. n<u- the judgment confessed tn him. could 
 be re.i;ariled jis an estoppel of plaintiff from the 
 further prosecution of her rif,dits a.i;ainst defend- 
 ant. 
 
 [Kd. Note.— Cited in M(d)uilie v. Mclntvre, 11 
 S. C. 56L'. .•{!' Am. Rep. oOd. 
 
 For other oases, see (Jnardian and Ward. 
 Cent. Dig. S -'84 ; Dec. Dig. <S=»<J1.] 
 
 [fJinHiition of Artionfi <S='TlI.l 
 
 Jlcld. further, that plaintiff was i)arn(l by 
 the statute of linntations. 
 
 [Kd. Note.— Cited in Moore v. lloo.l, li Rich. 
 Eq. ;J25. 70 Am. Dec. lilO. 
 
 For other cases, see Limitation of .\ctions, 
 ■Cent. Dig. ^ :'.!».") ; Dec. Dig. (©=37l!.l 
 
 yudiitiiriit (SxsaOfi.').] 
 
 A juiiirment cannot operate n.s an estoppel 
 as asainst parties not le;r:dly before the Court 
 which pron(»uuced the judgment. 
 
 [Kd. Note.- Cited in Ren wick v. .Smith. 11 S. 
 C. :{()4. 
 
 For other oases, see Judgment, Cent. 1)1;:. § 
 1177; Dec. Dig. <g=>fUi5.1 
 
 [Liniitniion of Aclions (@=>1():{.] 
 
 Thoush technical trusts are uot. as between 
 trustee and cestui <pie trust, within the statute 
 of limitations, yet, if the trustee does an act 
 which imports to lie a ternnnatioii of his trust, 
 the statute will from that tinn* <ommeuee to 
 run in iiis favor. 
 
 |Kd. Note.— Cited in Solleo v. Croft. 7 Rich. 
 Ki\. 42: I'arks v. .Noble, !) Rich. Ivi. OS; Cul- 
 burn v. Iloll.ind. 14 Rich. Km. 241 : Mason v. 
 Johnson, i:'. S. C. 24: M<ites v. Madden. 14 S. 
 <'. 4;>2: Dickerson v. Smith, 17 S. C. :',(l."» : 
 Hayes v. Walker, 70 S. C. 52, 48 S. E. Osi». 
 
 F(U' other cases, .see Limitatif)n of Actions, 
 Cent. Dig. SS 500, .500-510; Dec. Dig. <g=> 
 
 lo:;.] 
 
 [Limittition of Actions C=>10;11 
 
 An act done in a public ollice. open for the 
 information of parties interested, must be taken 
 notice of b.v them ; and whore the act puritorts 
 to be a termination of a trust, it will, as a gen- 
 oral rule, give currency to the statute of limita- 
 tions in favor of the trustee. 
 
 |K<i. Note. — Cited in Roberts v. Johns, 24 S. 
 C. 588; Fricks v. L-wis. 20 S. C. 240, 1 S. K. 
 8.V4; Royd v. Munro. :^2 S. C. 2.5:;. 10 S. E. 
 !)0:; : Roiiertson v. I'.lair & Co.. .50 S. C. 110. 
 .'U S. K. 11, 7<! Am. St. Rep. 54:!; Kilgore v. 
 Kirkland, 0!) S. C. SO. 48 S. K. 44. 
 
 For other cases, see Limitation of Actions, 
 Cent. Dig. §§ 500, 500-510: Dec. Dig. <S==>lo;J.] 
 
 [Liwitdtion of Actions <^;=>10^.] 
 
 Wheie a guardian, disi)laced from his trust, 
 has a settlement, iiurjiortin.i; to be in full, with 
 his successor duly appointed, he from that time 
 occupies the position of a stranger to his former 
 wards and their new guardian. 
 
 |Kd. Note. — For other lases. see Limitation 
 of Actions. Cent. Diu'. 5(§ 500, .500-510; Dec. 
 Dig. (£=>10:'k] 
 
 [Ad I rise /'osscssioii <2=»4.| 
 
 Where a trustee has the legal title, or where 
 he may pro.secute a suit in behalf of his cestui 
 (|ue trust for the matter in controversy, and is 
 barred, as against a stranger, by the statute of 
 limitations, the cestui que trust, even thou.!,di he 
 be an infant, will also be barred as against such 
 stranu'cr. 
 |Kd. Note. — Cited in Barnwell v. Marion, .54 
 
 s. c. 2:u), ;?2 s. K. ;u:i. 
 
 For other cases, see Adverse I'ossessiou, Cent. 
 Dig. S 2:i; Dec. Dig. <g=>4.] 
 
 [OiKirditin itiid Ward (2=3125.] 
 
 A guardian is a trustee who may pro.secute 
 a suit in behalf of the ward for his equitable 
 choses in action ; wher >. theref(U0, as to such 
 (hoses, the guardian is barred by the statute of 
 limitations, the infant, in the absence of collu- 
 sion, is barii'd also, as against stiangers and 
 must resort to his remedy against the guardian. 
 
 jKd. Note.— Cited in Wi«:htman v. Grav, 10 
 Ri< h. K(i. 5:50 : Crosby v. Crosby, 1 S. C. :'.45: 
 .MrDuflie V. M.Intyre, 11 S. C. 50(1. 501, ;{2 
 -Vm. I{e|>. 5(MI; State e.\ rel. V.ui Wyck v. 
 Norris, 15 S. C. 200: Waring v. Cheraw <X: D. 
 R. Co., 10 S. C. 424; Werber v. Cain, 71 S. 
 C. 34t>, 51 S. K. 12:i. 
 
 For other cases, sec (Tuardi.m and Ward, 
 Cent. Dig. S 428; Dec. Dig. <S=125.] 
 
 jThis case is also cited in Haruwell v. Marion, 
 54 S. C. 22;>. .■'.2 S. K. Ml.'}, and distinguish- 
 ed therefrom.] 
 
 ^=>For other cases see same topic and KEY-NL'MUUH ia all Key-Nuubered Digests and indexes 
 
 25
 
 *61 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 *61 
 
 *Before Jolmston, Ch., at Anderson, 
 June, 1851. 
 
 This case will be sufficiently understood 
 from the opinion delivered in the Court of 
 Appeals. 
 
 Harrison, for appellants. 
 Reed, Vandiver, Orr, contra. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW, Ch. By the appointment of 
 the ordinary of Anderson district, J. A. M. 
 Cason, on June 6, 1S36, became an adminis- 
 trator of the estate of William Cason, who 
 died intestate ; and on November IS, 1839, 
 by like appointment, became guardian of 
 Cynthia and other infant children of the in- 
 testate. In his returns as guardian to the 
 ordinary, it seems that, by 'unintentional 
 inaccuracy,' as the ordinary reports, he omit- 
 ted to charge himself with interest on the 
 balance which had been in his hands, as ad- 
 ministrator, for some years. On February 
 23, 1846, the ordinary made a decree, that it 
 appears on settlement, that J. A. M. Cason 
 is indebted to his wards in the sum of $2710.- 
 39; and on February 27, 1846, Cason con- 
 fessed a judgment to the ordinary for this 
 sum. Mrs. Cason and Jacob Pickle .were 
 appointed by the Court of Etiuity, March 6, 
 1846, guardians of the same wards ; and on 
 April 6, 1846, they, as guardians, gave a re- 
 ceipt to the sheriff for the amount of the 
 judgment \ponfessed by J. A. M. Cason. 
 James Long and Cynthia Cason intermarried 
 Dec-ember 28, 1849, and the wife did not at- 
 tain the age of twenty-one years until 
 March 6, 18.50. James Long, on October 21, 
 1850, cited J. A. M. Cason to account before 
 the ordinary for the mistake as to interest 
 aTiove mentioned ; and Cason, appearing by 
 counsel, insisted, that, granting the mistake, 
 he was protected from further accounting by 
 the decree of the ordinary and the judgment 
 at law, which were ratified by the subsequent 
 guardians by their act acknowledging satis- 
 faction to the sheriff, and further that he 
 was protected by the statute of limitations. 
 The ordinary overruled these defences, and 
 ordered Cason to account further. From 
 
 *62 
 this order Cason *appealed to this Court; 
 and at the sitting for Anderson, in June last, 
 the Chancellor decreed that Cason was not 
 liable to account, and reversed the order of 
 the ordinary. Long and wife appeal from 
 that decree; on various grounds contesting 
 the sufficiency of Cason's defences. 
 
 The decree of the ordinary, of 1.846, can- 
 not be regarded as an estoppel of Long and 
 wife from the further prosecution of their 
 rights. That decree seems to have been made 
 at the instance of the guardian, without the 
 presence of any person authorized to repre- 
 sent the wards. The case, in this particular, 
 is governed by the autliority of Miller v. 
 26 
 
 Alexander, (1 Hill Eq. 27.) There, the or- 
 dinary, without citation of the distributees or 
 their being present, upon an ex parte settle- 
 ment of the accounts of an administrator, 
 decreed a certain sum against the adminis- 
 trator, but omitted to charge him with inter- 
 est collected upon notes. The Court held 
 the decree not to be conclusive, and say: 
 "It was wholly an ex parte proceeding, made 
 up entirely at the instance of the administra- 
 tor, to enable him to settle with his cestui 
 que trusts. In order to be conclusive, it 
 ought to be the judgment of the Court, be- 
 tween parties regularly in Court, on the 
 same matter then in issue between them. 
 It must appear by the proceedings, that the 
 parties were legally in Court." 
 
 Whether the ordinary can vacate his for- 
 mer decree, without a direct application for 
 that purpose — whether the proceeding in this 
 case amounts to such application, and wheth- 
 er the decree, until vacated, must not be 
 held valid by other Courts, are questions 
 upon which some difference of opinion may 
 exist ; and the discussion of them may be 
 waived in the present case. 
 
 The same reasoning which establishes the 
 inconclusiveness of the ordinai'y's decree, 
 shows also that the judgment confessed by 
 the guardian to the ordinary cannot have 
 the force of an estoppel. In that proceeding, 
 too, the wards were unrepresented. 
 
 It may be, however, that the decree of the 
 ordinary in 1846, although not a technical 
 estoppel, is a starting point for the running 
 of the statute of limitations. In procuring 
 
 *63 
 that decree, the *guardian, Cason, evinced 
 his intention to terminate his trust to his 
 wards. He intended the settlement to be in 
 full. He acknowledged his liability as guard- 
 ian for the amount decreed against him, and 
 confessed judgment for this sum : and by the 
 strongest implication denied all further lia- 
 bility. Moreover, in a few days afterwards, 
 he was displaced from his trust, and suc- 
 cessors to him appointed by this Court. 
 These successors, more than four years before 
 any further proceeding against him, received 
 from him through the sheriff, the amount of 
 the decree and judgment, and made no fur- 
 ther claim upon him. They thus ratified the 
 ordinary's decree. These acts of Cason, pur- 
 porting to be in full execution of his trust, 
 place him in the character of a stranger to his 
 former wards and their new guardians, and 
 put them upon the assertion of their rights, 
 at the hazard of losing these rights by lapse 
 of time. 
 
 Technical trusts, as to claims between 
 trustees and lieneficiaries, are not within the 
 statute of limitations. But, to use the lan- 
 guage of our last reported case on this sub- 
 ject, (Brockington v. Camlin, 4 Strob. E(]. 
 196,) "if the trustee does an act which inqjorts 
 to be a termination of the trust ; if he has a 
 settlement which is intended to be in full ;
 
 LONG V. CASON 
 
 *G6 
 
 ,t „e .e,.,e» «. to par, an,. <-,a.„,s ,he resulue, this o,,,e ,s H.«l |^-.;'f '--''..i^Uf 'J, 
 
 tween the trustoe aiul his cestui que trust, , i'..„tiMn,l v Stokes, »li Ha. an.l 
 
 L that the statute ..f liu.itatious .ill ^^ J" ^:;5'!''l;,,„ ^'f "^ .;;,^'l Cox, 145; Mil- 
 .nouce to ruu fnun the date ;'f •^"^•^l, "^ " !• I"" mSu H^ W^ 441 : Lewiu on 
 
 man v. Davis, 2 Strob. E(i. :?40; I'ayut .. 
 Harris, .->. Strob. Eq. nO.) lu the last case 
 there had been an acwuntiuR of the adnnn- 
 istrators of an intestate before the Ordinary, 
 in which some of the distributees, m their 
 
 throu^'h the laches of the execut..r before as- 
 sent to the lej^acy, a stran.u'er had ^k''1""';<1 
 title bv possession. In Ulover v. l^.tt. (1 
 Stroll iMi "'■».» where an executor had l»aul a 
 Wiiacy of an infant to her father, and return- 
 
 Hbsence were' excluded by misapprehension j ed the father's recei,^ J!; j^" ^li r^as a^^ 
 of uie pi^vision of the statute of <listn''"- to t>;e -^-^J^^^^^^^^l^^ "^^Ll^it i^l as 
 tlons. The Chancellor says: ''I ^ake it, tlm Uyanls ak^^^ ^^^^ 
 
 an act done in a .uUU. ..mce. open for t.-h^^^that tV- 1-^ - ^^^^^^ ,^^^ ^^ 
 
 ...ormanion of parties interested nuist^ be| ^^^t^-^ ^-::r; %::t::^J^ 
 taken notice of by them; and that the statu e , cases tiU I on^^u^^^^ ^^^^^^^^^ ^^^^ 
 
 obtained currency against the parties !"^'' ; ! "^^. "^'y/^-^j,^ t. ..^^ f,om opening' the set- 
 tioiied, from the date of the divisum stat te < f hu 
 
 This remark, althou^'h ^-enerally true, »'; I l^™^^' n se 4mli s were their trustees 
 not be applicable to extreme cases. /^ f^^^"M ^^o tbriiiTtte ^ of the settlement, and au- 
 que trust is always ban-ed by len.ho^^^^^ ^^^^.^ ^.,^^.^„^ ,,r the 
 
 .peratin, «^;--\,''sch "" uul li G-" In I r cnl.n of Uie errors in the decree. In .en- 
 Lord Annesley, (2 Sch. and Ut. ♦'"/•^ '' . ^^^f.^^,^ ^uall lose nothinj; by non- 
 Ixnvellin V. Mackworth, (2 Eq. Ca. f,^" ;^;^;M ".";/'"/" ;!!e,t in demandin,^ his ri.ht ; 
 Lord Ilardwicke says: -The rule, that ^^^1^;^^^:^^^ "^^^^ ,^,,,,,,,a from the o^vv^- 
 
 ,e ni e. ri a. u. , "; ^ ^ ,.,,,i,. ex<-epted f nun the opera- 
 statute of limitations does not bar ;\t>">t and he ^^J;^ > ; lin.itations: hut if an 
 estate, holds only as between cestui ^'"H ^^,;l^'\ie,e,al title in tinist for t^ 
 trust and trustee, not between cestui que ;!^';^';;\^^;:^;,J^,,.^,,,,„te suit in his behalf f<>r 
 
 the matter in controversy, the pohcy of the 
 
 trust and trustee on one side and strani,'ers on 
 the other ; for that would make the statute 
 of no force at all, because there is hardly any 
 estate of consequence without such trust." 
 
 Where there is no imputation of fraud 
 an infant beneticiary will be bou 
 
 bar incurred tlirouj:li the laches of his trus- 
 tee. In Wych V. East Ind. Co.. (3 P. Wins. 
 309,) A. had agreed with the company for a 
 certain allowance, and afterwards died in- 
 testate, leaving an infant son. B. took out 
 administration during the minority of the 
 .^on. but instituted no suit upon the con- 
 tract. The son, within the term of the stat- 
 ute after attaining maturity, but not within 
 the term after the cause of action accrued, 
 brought his bill against the company for an 
 account; and they pleaded the statute of 
 limitations. Lord Talbot said: "The admin- 
 istrator, during the infancy of the plaintiff, 
 had a right to sue; and though the cestui 
 (pie trust was an infant, yet he must be bound 
 hv the trustee's not suing in time; for I 
 cannot take away the beneht of the statute 
 of limitations from the company, who are in 
 no default, and are entitled to take advantage 
 thereof as well as private ptM-sons ; since 
 their witnesses may die, or their vouchers be 
 lost. And as to the trust, that is only be- 
 tween the administrator and the infant, and 
 does not affect the company." In a note to 
 
 statute to protect possession and preclude 
 
 "liti<'ati.)n. sh.mld have full operation. It 
 
 m, or irauu ivmains for us to emiuire. whether guardians 
 
 1 bv a l" 1 appointed by this Court are not entitled to 
 
 • sue for. and receive the equitable <hoses of 
 
 their wards. 
 
 It is said in Kent's Ctimmentanes. (_ k. 
 '>'^S) that a sruardian may sell the perscmal 
 estate of his ward, for the purposes of th" 
 trust without a i»revious order of the Court, 
 and that, if the sale be fair, the title ot the 
 purchaser is undoubtedly good, although the 
 safer course is to have the previous order 
 of the Court. In Eield v. Schiefleliu, (7 
 .Tohns Ch. 150.) and in Bank of Virginia v. 
 Crais: (♦> Leigh, MOll.) the doctrine is broad- 
 ly asserted, that guardians have the same 
 t'itle to the pei-sonal estate of their wards, 
 as executors have to the personal assets of 
 
 *66 
 their testators. It *would be hazardous to 
 recognize this doctrine as to the chattels of 
 wards: and this Court in the case of Bailey 
 V ratti>rson. ^n Rich. Eq. 150,) set aside tlio 
 purchase of a slave from a guardian. In 
 general, guardians cannot <-hange the nature 
 of infants estates, but they may even do that, 
 as is said bv Lord Hardwi.ke in Inwood v. 
 Twvno, ^Amb. 41'.), 2 Eden, 14S,) -under par-
 
 »j6 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 ticular circumstances; and the Court will 
 support their conduct, if the Court would 
 do it under the same circumstances." They 
 ar« entitled, however, to the possession and 
 management of all the property of their 
 wards, and to the collection and disbursement 
 of all the income, profits and credits arising 
 therefrom. Their authority extends to bind 
 the infants by all such acts as appear to be 
 for the advantage of the infants, and for 
 which the guardians are liable to account. 
 I apprehend that a guardian has plenary 
 right to receive moneys coming to his ward, 
 and to prosecute, compound and acquit any 
 debt or liability to the ward. He always 
 acts under responsibility to his ward for the 
 faithful and judicious performance of his 
 trust, and is liable for any fraud, gross negli- 
 gence, or otlier breach of trust. But a 
 stranger dealing with him as to the choses 
 of the ward, may rightfully presume that he 
 is acting for the benefit of the infant, and in 
 the absence of any evidence of collusion, does 
 not partake of the guardian's responsibility. 
 It appears to me highly important to the in- 
 terests of infants and to the repose of the 
 community, that guardians should have such 
 power over the rights and credits of their 
 wards. If the debtor of the infant, cannot 
 safely account and pay to the guardian, for 
 the hire of a slave or any other lialiility, the 
 estates of infants must suffer the impoverish- 
 ment resulting from having every demand 
 settled by a law suit. If the statute will not 
 run against an infant represented by a 
 guardian, we may conceive of a case in which 
 a debtor would be liable to reclamatioii for 
 undesigned mistake after more than twenty- 
 four years. Why should an infant with 
 guardian be barred by lapse of time any more 
 than by the statute of limitations V But it 
 will hardly be disputed that, as to such chos- 
 
 *67 
 es as cannot be assigned at law, and are *not 
 legal demands, he is barred by lapse of time. 
 (Miller v. Mitchell, Bail. Eti. 437; Buchan 
 V. James, Sp. Eq,. 382.) The hardship of 
 barring by the statute, an infant after a 
 settlement made by his guardian, is not much 
 greater than in the case of any other benefi- 
 ciary who is barred through his trustee. 
 
 These views have strong support from au- 
 thority. In Field v. Schieffelin, the sale and 
 assignment by a guardian to a stranger of 
 bond and mortgage belonging to an infant, 
 were held valid. The same doctrine is held in 
 Livingston v. Jones, (Harring. Ch. 105.) So, 
 also, the guardian's transfer of the infant's 
 stock in a bank is valid — (Bank of Virginia 
 v. Craig.) The case of Ellis v. Essex Mer. 
 Bridge, (2 Pick. 243,) was like the last, ex- 
 cept that the guardian was of one non com- 
 pos. Ex parte Dale, Buck, 30.5, is cited by 
 Macph. on Infants, 541, for the doctrine, that 
 money left by a guardian in the hands of one 
 who becomes bankrupt, passes to the as- 
 signees, for such a trustee is the true owner, 
 
 28 
 
 A guardian is permitted to prove, under a 
 commission of bankruptcy, a debt due to an 
 infant. Ex parte Belton, 1 Atk. 251 ; Waloott 
 V. Hall, 2 Bro. C. C. 305. 
 
 In Capehart v. Iluey, (1 Hill Eq. 400,) 
 where the guardian executed a release of the 
 ward's claims against a witness, in order to 
 render the witness competent, the Court say: 
 "A guardian, Jis the officer of the Court of 
 Equity, is charged with the preservation 
 of all the rights and interests of the Wiird. 
 He cannot, however, generally change the 
 nature or diminish the capital of the estate ; 
 but with this exception, he is authorized to 
 do any act for the infant which a prudent 
 man in the management of his own business 
 would do. Such an act must of necessity fall 
 within the rule, well stated in Bing. on Inf. 
 and Cov. 152: 'it seems generally tliat those 
 acts of the guardian are binding on the in- 
 fant, which are for the benefit of the infant^ 
 and for which the guardian can account ; 
 for so far his authority extends.' The re- 
 lease here is an act for which the guardian 
 can and must account, if he thereby fails in 
 recovering the share of his ward." Now, if 
 the guardian has authoi'ity to release one lia- 
 
 -1=68 
 bility to his ward, he ma.v any other in *right 
 merely; and if for one purpose, he may for 
 any other appearing to be for the advantage 
 of the infant; and in every case he is liable 
 to account to his ward. It would be ditlicult 
 to state any matter, more clearly for the ben- 
 efit of the infant, than the ascertainment of 
 his distributive share of his father's estate, 
 and the adjustment and settlement of the ac- 
 counts of his former guardian. 
 
 It is lield, in Johnson v. Johnson, (2 Hill 
 Eq. 284 [29 Am. Dec. 72],) that, where an ex- 
 ecutor becomes guardian of an infant lega- 
 tee he must account in the latter character, 
 for whatever funds he had in his hands as 
 executor were transferred, by operation of 
 law, to his account as guardian. Simkins v. 
 Cobb, (2 Bail. 00.) On what principle can his 
 debt as executor be regarded as extinguish- 
 ed by his appointment as guardian, unless as 
 guardian he had the legal right to settle and 
 adjust and receive the balance due on his 
 accounts as executor. 
 
 In Massey v. Massey, (2 Hill Eq. 490,) the 
 statute of limitations was held to protect the 
 ward, sued after he became of age with his 
 guardian, from reimbursement of an erro- 
 neous payment made in his behalf to his 
 guardian, more than four years before bill 
 ttled, but less fiian four years after the 
 ward's maturity, although the guardian hhn- 
 self did not plead the statute. That case is 
 the exact correlative of the present one; and 
 the rule should work both ways. If the in- 
 fant be protected, under the statute, by the- 
 guardian's receipt of money four years before 
 suit, he should be barred by the guardian's 
 laches in not prosecuting and receiving fot 
 the statutory term.
 
 BIIUWN V, POSTELL 
 
 *71 
 
 I coneliule, that Cynthia Loii;;. having 
 guardians competent to protect her interests, 
 and to prosecnte in her behalf for any error 
 in the settlement of the accounts of her for- 
 mer guardian, is not exempt hy her infancy 
 from the bar of the statute of limitations. 
 
 It is not necessary in this case, to deter- 
 mine what may be the operation of the stat- 
 ute against an infant with guardian, as to 
 legal demands standing in the name of the 
 infant. Our judgment is limited to the case 
 presented. We hold. that, as to a chose of 
 the infant, not assignable at law, and pecu- 
 
 *69 
 liarly within *the power an«l duty of the 
 guardian, the laches of the g\iardian in the 
 absence of collusion, by operation of the stat- 
 ute of limitations, bars the infant as to 
 strangers, and leaves him to his remedy 
 against the guardian. 
 
 It is ordered and decreed, that the appeal 
 be disnussed. and the decree be attirmed. 
 
 JOHNSTON and DlNKIN, CO., concurred. 
 
 DARGAN, Ch. I think that where the or- 
 dinary has made a decree on a subject mat- 
 ter and between parties within his jurisdic- 
 tion, such decree is conclusive unless it 
 should he reversed or modified on appeal. 
 And though there be errors or inaccuracies 
 in it. he has no power to entertain an appli- 
 cation in the nature of a bill of review for 
 the correction of those errors. His ofhcial 
 power over the matter ceases when he has 
 rendered his decree. He has not the power 
 even to enforce his own decrees. More 
 strongly would the case appear, where the 
 parties, as in this instance, have regarded 
 the proceedings before the ordinary as a final 
 settlement, and have received the shares de- 
 creed to them in full. 
 
 I think also that where an infant has a 
 guardian who makes a settlement for hi».i. 
 or, which is the same thing, adopts one al- 
 ready made and gives a discharge, if the 
 subject matter is such as falls within the 
 power and authority of the guardian, the in- 
 fant is as nuuh concluded as if he was an 
 adult. A settlement like this could only be 
 opened upon such general grounds of ecpii- 
 talile relief as would be available to all per- 
 sons not under the disability of infancy. 
 On the foH'going grounds I concur in the 
 decree which has been rendered by this 
 Court. Rut I am not prepared to admit. 
 or to place my concurrence on the ground 
 that an infant is to be deprived of the sav- 
 ing in the statute of limitations in his favor, 
 because he has a guardian. The statute it- 
 self makes no such distinction: nor am I 
 aware of any authority for it, either as to 
 chattels or chtises in action. It is said that 
 
 *70 
 the statute runs *against an infant from the 
 time he has a guardian, because then he has 
 
 some one to look after his rights and to sue 
 for him if necessary. He may sue iiefore he 
 has a guardian if he chooses. The statute 
 idaces him under no disability from suing, 
 but gives him a longer time to bring his ac- 
 tion. Married women and lunatics may also 
 sue during their respective disabilities; yet 
 it has never been supposed, that, becau.se 
 they might .sue, this was to destroy or to 
 take away the savings in the statute in re- 
 spect to them. 
 
 The statute of limitations runs against 
 trustees, executors and administrators, be- 
 cause it runs against tlie legal estate, which 
 is vested in them for the pinposes of their 
 trusts. And the rights of their cestui (pie 
 trusts may be lost by their laches, wherethe 
 statute has been perndtted to run so as to 
 create a bar. And in such a case, the only 
 remedy would be again.st the trustee for an 
 abuse of trust. Rut the guardian is not pos- 
 sessed of any legal estate in his ward's 
 chattels or choses. If a guardian should 
 take a note or other security, payable to 
 himself for the rents and profits of his ward's 
 real or ixn-sonal estate, or calling in the 
 ward's cho.ses should reinvest them in other 
 securities payable t«> himself, in these and 
 sinnlar cases I should have no hesitation in 
 saying, that the statute of limitiitions would 
 run again.st the guardian, and through the 
 guardian against the infant ward: for the 
 reason that the legal estate in such securities 
 was vested in the guardian. Rut in no case, 
 where the legal title in the ward's estate is 
 not vested in the guardian, would 1 say that 
 the statute would run against an infant ex- 
 cept under the specific provisions of the Act 
 itself. 
 
 Decree affirmed. 
 
 4 Rich. Eq. *7I 
 
 *JOIIN A. RKOWN v. MAKY W. I'OSTF.LL 
 
 and Others. 
 
 (Coluiubia. Nov. and Dec. Term. 1851.) 
 
 [Appeal and Error <g=>S70.1 
 
 A (lecrco dctonniuing a case iiiioii its ments, 
 but ordering a reference to ascertain the 
 amount due. and not deterniinini; the nnide in 
 which satisfaction should be ni.ulf of the 
 amount when ascertained, may be apiiealed from 
 when an appeal is taken from the decree on the 
 report. 
 
 |Kd Note.— Cited in Simpson v. Downs. 5 
 Rich. K(i. 4^"); Verdier v. Verdier. I"-' Rich. 
 K.|. 14'_\ 
 
 For other cases, see Appeal and Krror. Cent. 
 DiL' 88 •">4")1. :US7-34S!>, :!4!n-:'>.")l-J; Dec. Dig. 
 C=>ST(;.] 
 
 [TnixtK <S=5l.".l.] 
 
 Conveyance of jiroperty in trust, that hus- 
 band and wife and his childien slmuld l>e sup- 
 ported and maintained out of the proiierty dur- 
 ing their natural lives, and, after tlic death of 
 husband and wife, that tiie estate sh.uilil be 
 eciuailv dividi'd among the children: tlie luis- 
 l)and. tirst. and the wife, after his death, con- 
 tracted debts, personally, for rent. overse,er's 
 
 G=3For other cases see same topic and ICEY-NL'MBER In all Key-Numbered Digests and Indexes 
 
 2'J
 
 m 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 wages, and necessaries supplied for the use of 
 the iami\\:—Held, that for these debts the cred- 
 itors had no equity to make the trust estate, as 
 such, liable. 
 
 [Ed. Note.— For other cases, see Trusts, Cent. 
 Dig. §§ 195, 1951/2, 197; Dec. Dig. <S=^151.] 
 
 [Trusts (®=:3l51.] 
 
 Held further, that the creditors of the wife 
 could not enforce their demands out of her in- 
 dividual interest, (1) because the bill was not 
 framed with that aspect; and (2) because her 
 interest could not be separated without breaking 
 in upon the scheme of the trust, which required 
 that the property should be kept together until 
 the death of the survivor of the husband and 
 wife. 
 
 [Ed. Note.— Cited in Rivers v. Thayer, 7 
 Rich. Eq. 167. 
 
 For other cases, see Trusts, Cent. Dig. § 
 195; Dec. Dig. <©=>151.] 
 
 This case was heard in June, 1846, in York 
 district, before Johnson, Ch., who made the 
 following decree: 
 
 Johnson, Ch. The late Jehu Postell, by 
 deed dated in February, 1819, conveyed to 
 Charles Williams certain slaves by name, 
 ten in number, with their subsequent issue 
 and increase, upon certain terms, which are 
 very confusedly and inartificially expressed. 
 Those upon which the question to be consid- 
 ered turns, are thus expressed : "The said 
 Charles Williams shall stand possessed, as 
 trustee aforesaid, and the said Jehu Postell 
 and Mary, his wife, &e.. as also his present 
 children or any other children, by him, the 
 said Jehu Postell, lawfully to be begotten, 
 are to be supported and maintained out of the 
 said property, during the term of their natur- 
 al lives ; and at the death of the said Jehu 
 Postell and Mary, his wife, &c., the said 
 Charles Williams shall stand possessed of 
 the said property, for the said Jehu Postell, 
 during the tei-m of their natural lives, and at 
 their deaths, to such of their children as may 
 be living, share and share alike," t&c. 
 
 Jehu I'ostell retained possession of the ne- 
 *72 
 groes until his death *in 1S.'].3, and the de- 
 fendant, Mary W., his widows ^md their chil- 
 dren, have had possession of them ever since. 
 Charles Williams is also dead, and neither 
 he nor his executors have ever interfered 
 with them, and no trustee has been substitut- 
 ed in his place. Defendant, Mary W^., con- 
 tracted a debt with the complainant, a mer- 
 chant, for goods, which, he charges, were 
 necessaries for herself and children. He has 
 obtained his judgment at law, against her, 
 for the debt, and the sheriff has returned 
 nulla bona on the fi. fa. against her, and the 
 bill prays that the trust property may be 
 charged with the payment of his demand. 
 
 Notwithstanding the informality of the 
 deed, I think it may fairly be deduced that 
 the grantor intended that the support and 
 maintenance of his widow and children, 
 should be a charge as well on the corpus as 
 the income of the trust property, and if the 
 account raised by the complainant against 
 
 the defendant, Mary W., was for necessaries 
 supplied for the use of the family, it is a 
 charge on the trust property. 
 
 It is stated that an order of the Court has 
 been heretofore made, authorizing the sale 
 of a portion of the negroes, to supply the 
 wants and pay the debts contracted by de- 
 fendant, Mary W., for the use of the family, 
 and that out of the proceeds she purchased 
 a house and lot in the village of York. It is 
 admitted that this property is unproductive, 
 and it is the desire of the defendants that it 
 should 1)6 first sold, to meet the demands up- 
 on the trust property. 
 
 It is therefore ordered and decreed, that 
 the commissioner enquire and report, wheth- 
 er the account raised by the complainant 
 against defendant, Mary W. Postell, was for 
 necessaries supplied for the use of herself 
 and family. It is further ordered, that the 
 said house and lot, in the village of York, 
 be sold by the commissioner, on the first Mon- 
 day in August next, or some convenient sale 
 day thereafter, on a credit of twelve months, 
 with interest from the day of sale ; the pur- 
 chase money to be secured by bond and per- 
 sonal security, and a mortgage of the prem- 
 
 *73 
 ises, and the proceeds *of sale, when collect- 
 ed, to remain in Court, suliject to its further 
 order. 
 
 In June, 1847, the case was heard on the 
 report of the commissioner before his Honor 
 Chancellor Caldwell, who, discovering that 
 some of the cestui que trusts had not been 
 made parties to the bill, made the following 
 order: 
 
 Caldwell, Ch. It is ordered and decreed, 
 that all the children of Jehu and Mary W. 
 Postell be made parties by service, if with- 
 in the State, or by publication, if without 
 its limits, to the proceedings in this case, 
 and that the report be recommitted to John 
 M. Ross, Esq., special referee, without prej- 
 udice, and the evidence to be offered de 
 novo, and that all the creditors of ^Nlary W. 
 Postell, who have claims against the trust 
 property aforesaid, have leave to come in 
 as plaintiffs to this bill, on their proportion- 
 ally contributing to bear the expenses of 
 this suit, and that the said referee do en- 
 quire and I'eport, whether their respective 
 claims were for necessaries furnished to 
 her or her children ; whether on her credit, 
 or on the credit of the trust estate ; v/heth- 
 er any of them, and which, was contracted 
 for the benefit of the trust estate, or whether 
 it ought to be made liable for the same ; 
 also, of what property the trust estate con- 
 sists; what is the annual income thereof; 
 how the same has been applied, and who 
 has possession thereof, or has received the 
 rents and profits ; also, what benefit she 
 and her children, respectively, have derived 
 from the trust estate ; and who would be a 
 fit and proper person to be appointed in the 
 
 30 
 
 <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inde.\es
 
 BROWX V. POSTELL 
 
 76 
 
 place of Charles Williams, the deceased j 
 trustee. 
 
 In June, 1851, the case ai;ain came up. on 
 the report, and excejitions thereto, before 
 his Honor ("haMcell<ir Wardlaw, who pro- 
 nounced the follo\vin;Lr decree: 
 
 Wardlaw, Ch. This case comes up Itefore 
 me on exceptii)ns, l»y the defendants to the 
 report of a special conuMissioner. estaidish- 
 ing certain dehts <lue to the plaintiffs as 
 charges upon the trust estate, of which de- 
 fendants are l)eneliciaries. and recommend- 
 
 ♦74 
 
 ♦ing the jia.vuient of them from the rent 
 of the land, and the hire of the negroes 
 comprising the trust i)ropert.v. 
 
 The third excejition olijects to the allow- 
 ance of the claims of the plaintiffs, hecause 
 there was no evidence that credit was given 
 on account of the trust estate. The com- 
 missioner, in the alisence of all proof, in- 
 fers that credit was given on the faitli of 
 the trust estate, from the fact that the ben- 
 eticiaries, Mar.v W. Postell and her seven 
 children, had no property, besides the tru.st 
 estate, when the debts were created. It 
 also appears that the debts are for rent, 
 overseer's wages, and for necessaries sup- 
 plied for the use of the family, and that the 
 deed creating the trust, prt)vides for the 
 support and maintenance of the family out 
 of the trust estate. Charles Williams, nam- 
 ed as trustee in the deed, never interfered 
 with the management of the trust proiterty. 
 although it is alleged in the bill that he 
 signified his willingness to accept the execu- 
 tion of said trust : and since his death his 
 executors have abstained from all Inter- 
 ference, and, although named in the bill, 
 they are not made parties to the suit. No 
 other trustee has been ai)iiointed. The trust 
 property continued in the possession of Jehu 
 Postell, the husband, until his death in No- 
 vember, is.'!;'., and since has been in posses- 
 sion of the widow, Mary W. Postell, and 
 her children. The debt to Bratton & Er- 
 win was partly contracted by Jehu Postell ; 
 but after his death, tlie note of Mary W. 
 Postell and Thomas Williams. Jr., was ac- 
 cepted in payment l>y Hratton <& Erwin. All 
 the other debts were contracted by Mary W. 
 Postell, all or nearly all of her children being 
 then nnnors; one of them is still under age. 
 Whenever the debts were contracted with 
 merchants or tradesmen, the items in the ac- 
 counts were charged to Jehu Postell or Mary 
 W. Postell ; and in the i-ase of every debt pre- 
 sented, for note or single bill was taken by 
 the creditor, and generally .iudgments In the 
 Court of Law have been al.so taken against 
 her. The debt to Starr & (iraham was con- 
 tracted UKU-e than four years before the 
 order was passe<l allowing otTier ireditors 
 besi(kvs Prowu, the original phiintiff. to 
 come in and prove tli«>ir dem.-uids. and all 
 
 *75 
 the other debts were contracted ♦more than 
 
 four years before the filing of the bill. The 
 statute of limitations is relied upon by de- 
 fendants. an<l is pleaded by Starr & (Jraham 
 against all other credit<u-s. The trust deed 
 was regularly n-corded. 
 
 Tile creditors here have not furidshed 
 proof satisfactory to my mind that the cr»>d- 
 it they exteiKh'd to Mary W. Postell was on 
 the faith (»f the trust estate. Persons hav- 
 ing notice of a trust are not to be encourag- 
 ed In dealings with the beneficiaries, which 
 may subjcet the tru.st property to liaitility, 
 ••ind in many cases to utter destruction. 
 There is little use in creating trust esiates 
 and appointing trustees to manage them, if 
 ever.v man in the connnuuity may exercise 
 his discretion as to what is necessary for 
 the preservation of the trust est;ite and the 
 execution of the trusts. The interest of the 
 trust and the comfort of the innnediate i;ene- 
 ficiaries are not identical, else any one may 
 sujiersede the tnistee. and. under the iilausi- 
 ble pretence of supplying necessaries to the 
 iieneficiaries. ruin the estate. The only s.ife 
 rule iji the absence of express proof, is to 
 presume in such case, that the crt'ditors 
 trust to the economy and honesty of the ben- 
 eficiary, and expect reimbursements from the 
 income actually received or soon to be le- 
 ceived. It cannot be jtretended that the 
 creditors occupy a more favorable iMisition 
 than the trustee himself; and the trn>;tee, 
 without the previous direction of the Court, 
 or its subsequent sanction, upon some sud- 
 den emergenc.v. cannot encroach upon the 
 capital, or exercise discretion in disburse- 
 ments, beyond the income annually accruing. 
 Put we are not rashly to rennt creditors to 
 the rights of trustees ; for in this way we 
 shall foster dereliction by trustees and ir- 
 responsible management of trust estates. I 
 shall not undeitake to review our cases on 
 this subject, which are some^vhat conflict- 
 ing; but I think the principles I have set 
 forth are fairly dediicible from Magwood 
 v. Johnston, (1 Hill i:<i. L'.'Itii ; Reid v. La- 
 mar, (1 Strob. Eq. Ii7) ; and Morton v. 
 Adams. (Id. 71.'.) I coiuhule that the plain- 
 tiffs trusted to the personal liability of Mary 
 W. Postell. This conclusion is streniitbened 
 by the fact, that the plaintitTs accepted from 
 her higher securities for the debts by sim- 
 
 *76 
 *ple contract, (Gardner v. Hust. 2 Hiih. <iOl.) 
 and by the fact of tlu'ir great delay in [irose- 
 cuting a remedy against the trust estate. 
 
 It seems that under the decree of lS4t!, 
 iniprovldently made before all the beneficia- 
 ries were parties to the suit, a lot in York- 
 ville. belonging to the trust estate, has betMi 
 sold and purchased by the i»laintiff. Iin)wn, 
 for a small price, and that the sale was con- 
 firnu'd in 1N47; and it was urged that the 
 sale sh(Mdd be set aside, and an account 
 ordered for rents and profits. I cannot ven- 
 ture to decide an issue not made by the 
 pleadings, and I must leave the parties to 
 
 31
 
 *76 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 proceed hereafter In this matter as they may 
 be advised. 
 
 It is ordered and decreed that the bill be 
 dismissed. 
 
 The complainant appealed from the decree 
 of Chancellor Wardlaw, on the following 
 gronnds: 
 
 1. Because, it is respectfully submitted, 
 his Honor erred in holding there was no 
 sufficient evidence that credit had been giv- 
 en by J. A. Brown and the other complain- 
 ants, on the faith of the trust property. 
 
 2. Because liis Honor held, the creditors 
 had lost their right to compensation out of 
 the trust estate, by accepting the notes of 
 Mary W. Postell, and it is submitted that 
 there is error in this, and that the creditors, 
 by such acceptance, did not destroy their 
 equities to payment for benefits conferred on 
 the trust estate. 
 
 .3. Because, if his Honor decided correct- 
 ly that sufficient evidence had not been fur- 
 nished of credit being given by the com- 
 plainants on the faith of the trust prop- 
 erty, he should have decreed the sale 
 of the house and lot in Yorkville, bind- 
 ing and conclusive on the defendants, and 
 particularly on those of tliem who gave their 
 consent to said sale. 
 
 4. Because his Honor is mistaken as to 
 the fact of all the defendants having plead- 
 ed the statute of limitation — only some of 
 them having done so. 
 
 5. Because liis Honor should have de- 
 creed the defendants to pay costs. 
 
 6. Because, under the decree of Chancel- 
 lor Johnson, the complainants were entitled 
 
 *77 
 to recover, on proving, as tliey did, *that 
 the accounts raised by them against M. W. 
 Postell. were for necessaries for the use of 
 herself and family. 
 
 Williams, for appellant. 
 
 Witherspoon, contra. 
 
 The opinion of the Court was delivered by 
 
 DARGAX, Ch. The most serious difficul- 
 ty encountered by the Court in the decision 
 of this cause, is the question raised in the 
 complainant's sixth ground of appeal. The 
 complainant contends that the decree of 
 Chancellor David .Johnson, of the 17th June, 
 1846, did adjudge, that he should recover 
 Ms debt out of the trust estate; provided, 
 on the reference ordered, he succeeded in 
 establishing his demands as stated in the 
 bill. He contends, that having proved his 
 claim, as will appear by the commissioner's 
 report, the decree is conclusive upon the 
 defendants as to liis right to recover. 
 
 This Court is of the opinion that the de- 
 cree of the 17th June, 1846, did adjudge the 
 cause upon its merits, and that the Chancel- 
 lor did judicially decide, that the complain- 
 ant should recover ; provided, he proved liis 
 debt before the commissioner. This Court 
 is further of the opinion, that this decree, un- 
 
 32 
 
 less it is now properly in review before this 
 Court in the way of appeal, is final and con- 
 clusive upon the parties. And tliis l)rings 
 up the question, whether the decree of the 
 17tli June, 1846, can, at this stage of the pro- 
 ceedings, be brought before this Court on an 
 appeal. We are of the opinion that it may. 
 And the complainant having appealed from 
 the decree of June term, 1851, disallowing 
 his claim and dismissing his bill, it opens 
 the way for the appellees to make the same 
 questions which they might liave made if the 
 last decree had been against them. 
 
 Although the decree of the 17th June, 1846, 
 did adjudge that the complainant should re- 
 co\er, it was in the nature of an interlocu- 
 tory order for judgment. No execution or 
 attachment could have been issued upon it. 
 It did not ascertain the amount to be re- 
 covered, or the mode in which satisfaction 
 
 *78 
 
 was to be made. The *ainount was to be de- 
 termined by the investigation before tlie com- 
 missioner, and the mode of satisfaction out 
 of this trust estate still rested in the discre- 
 tion of the Court. It was, therefore, not a 
 final judgment, but one that was to be ren- 
 dered complete by further proceedings. The 
 case was not ripe for the final action of the 
 Court, until June Term, 1851, when a decree 
 was rendered, from which this ai^peal has 
 been taken. 
 
 It is unquestionably true, that the parties 
 aggrieved by the decree of June, 1846, might 
 then have appealed from that decree. Or 
 they might, in their discretion, (waiving their 
 present right of appeal until the final judg- 
 ment of the Court.) bring, by way of appeal, 
 all the former adjudications of the circuit 
 Court in review before this Court. This lat- 
 ter is virtually the position of the appel- 
 lees now before the Court. 
 
 A question might arise, (which, however, 
 does not arise in this case,) as to what would 
 be the effect of an intermediate appeal be- 
 tween the interlocutory and final decree of 
 the Court. The better doctrine is, that such 
 intermediate appeal should conclude all ques- 
 tions that were made, or might have been 
 made, in the appeal, and leave open only 
 such as were not then adjudged and could 
 not then have been adjudged. The case of 
 Price v. Nesbit, (1 Hill E(i. 445,) goes much 
 farther than this. It recognizes no such dis- 
 tinction, and rules that, as long as there re- 
 mains any thing for the Court to do in a 
 cause, all the preceding orders and decrees 
 may be reviewed on appeal. The extent to 
 which the right of appeal was allowed in 
 that case, has given rise to much discontent. 
 It is supposed by many to have sanctioned a 
 rule that was mischievous and cumbrous in 
 its operation. It is not necessary for me, on 
 the present occasion, to borrow any force 
 from this case. 
 
 Whether the decree of the 17th June, 1846, 
 was not of binding obligation upon all sue-
 
 BUMAR V. MULIJNS 
 
 *81 
 
 ceeding circuit Courts, is anotlior question 
 to that now liefore us. Tluit ilecroe is con- 
 sidered now to be fairly before tliis Court 
 on appeal, and as an appeal, we have a right 
 to hear it. 
 
 *79 
 
 ♦It is the opinion of this Court, that the 
 decree of the 17th June, 1S4(!, is erroneous in 
 its coustruetion of the deed creating the 
 trust. The deed is inartiliciall.v drawn. 
 But the intent of the donor is sutticiently 
 clear. The trust declared was as follows: 
 Jehu Postell, by deed dated l"Vbruary, ISIO, 
 gave to Charles Williams certain slaves by 
 name, in trust, that Jehu I'ostell and Mary, 
 his wife, and his present children and any 
 future children by him lawfully to be begot- 
 ten, should be supported and maintained out 
 of the said property during the term of their 
 natural lives, and at the death of the said 
 Jehu Postell and Mary, his wife, the trust 
 estate was to he etpially divided among the 
 children. This is, in substance, the i)rovi- 
 sions of the deed of trust. 
 
 If this be considered as an attempt to sub- 
 ject the trust estate, as such, to the claims 
 of the creditors, this Court perceives no equi- 
 ty in the application. The credit was not 
 given to the trustee, who is long since dead, 
 nor to the trust estate, but to some of the 
 beneficiaries personally. The corpus of the 
 estate the Court would not touch under any 
 circumstances ; and if the income, which is 
 small, were devoted to the payment of this 
 large amount of debts, there would be no in- 
 come left to answer the objects of the trust. 
 There is no etpiity in the api>lication as a 
 demand against the trust estate. - 
 
 The counsel of the appellant, in the ar- 
 gument, insisted, that if the Court did not 
 recognize an eipiity in the complainant's 
 claim again.st the trust estate, he should be 
 allowed to enforce his demand out of the in- 
 dividual shares of such of the beneficiaries 
 as had contracted the debts that he was seek- 
 ing to recover, lie claimt>d the right to en- 
 force his demands against the ei|uitable es- 
 tates of his debtors individually. 
 
 There are two insurmountalde imiK'diments 
 to the Court's adopting this latter view of 
 the case. In the first place, he has not 
 framed his bill with that aspect. That is 
 not the case he has called on the defendants 
 to answer, or this Court to ad.judge. The 
 secu4ul dithcnlty arises from the nature of 
 the trusts declared in the deed. The Court 
 could not subject the share of one of the 
 
 *80 
 ♦beneficiaries of the trusts to his or her 
 debts, without breaking in upon the whole 
 scheme of the trust. The interest of one 
 could not be separated without injury to the 
 other cestui que trusts. There is no present 
 right of enjoyment in severalty. The Court 
 would not decree a partition. The scheme 
 of the trust, according to the provisions of 
 
 the deinl, is, that the estate is to remain as 
 a whole until the death of the survivor of 
 Jehu Postell and Mary, his wife. The latter 
 still survives. On her death, the children 
 will be entitled to a partition and enjoy- 
 ment of their resjtective shares in severalty. 
 The decree is attirnu'd ami the ajipeal dis- 
 ndssed. 
 
 JOHNSTON, DINKIN and WAUDLAW, 
 CC. concurred. 
 Decree athrmed. 
 
 4 Rich. Eq. 80 
 
 JOHN BOMAIi, Jan., v. JANK MCLLINS. 
 
 (Columbia. Nov. and Deo. Term, 1851. » 
 
 \Exrriitors find AdiiiiiiisfintDrs <g=::3.'?0.] 
 
 The right of an administrator to interfere 
 at all witii till' lands of liis iiifcstafc, is so 
 ('(iiiivocal, that his rhiiin to the rents and profits 
 will not be recognized, where the lauds are held 
 by adverse title.— Seaible. 
 
 |Kd. Note— I''or other cases, see Executors 
 and Administrators. Cent. Dig. §S ->^^l -^5- 
 204; Dec. Dig. (©=3!).] 
 
 [HushdiHl (tnd ^Vifc <::=>V20.^ 
 
 Wife having a life estate in land, hu.sband 
 conveys it to a trustee for her sole and separate 
 use for life, with right to disi)ose of two-thirds 
 at her death, and with remainder in one-third 
 to himself: lnisl)an(l and wife afterwards piu'- 
 cliase tlie estate in reniainilor,- then sell the 
 land, and husband with the proceeds purchases 
 other land, taking himself the title: the laud 
 thus purdiased by husband becomes inq)rossed 
 with the trusts of the marriage settlenn'ut. 
 
 [Kd. Note.— Cited in McLeod v. Tarrant. ?.9 
 S. C. 275. 17 S. E. 77;:, 20 L. H. A. S4G ; 
 Green v. Caunadv, 77 S. C. 1!)7, 198. '199, 57 
 S. E. 832. 
 
 For other cases, see Husband and Wife, Cent. 
 Dig. S 431; Dec. Dig. <©=120.] 
 
 \II iifiliotul and Wife <S=>14.] 
 
 Where land is conveyed to husband and 
 wife, they Ijeconie seized of an estate in entiret.v 
 — neither can alien so as to bind the other, and 
 the survivor takes the whole. 
 
 [Ed. Note. — For other cases, see Husband and 
 Wife, Cent. Dig. }i 73; Dec. Dig. <S=14.] 
 
 [Estates (©=5l0.1 
 
 Wife having an estate for life, and husband 
 and wife being seized of the remainder in en- 
 tirety, the estate for life does not merge in the 
 estate in remainder. 
 
 [Ed. Note. — For other cases, see Estates, 
 Cent. Dig. § 11 ; Dec. Dig. <S=>10.] 
 
 Before Wardlaw, Ch., at Spartanburg, 
 June, 1851. 
 
 This case is instituted by plaintiff as ad- 
 ministrator of the chattels and credits of 
 Daniel Mullins. who died intestate, against 
 the defendant, the widow of the intestate, 
 
 ♦81 
 for an account of rents and ♦profits of the 
 Mullinax-mill tract of land and the Foster 
 tract, to which the intestate had titles in 
 his own name, and of which, since his death, 
 the widow has retained the possession, claim- 
 ing them as purchased with trust funds 
 belonging to her. 
 
 <g=>For other cases see aame topic auU KEY-NUMUEK iu all Key-Numbered Digests aud Indexes 
 ■i Kk. II. Eli.— 3 
 
 33
 
 *81 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 John James, former husband of defendant, 
 by his will, gave one-half of his estate in fee 
 to his daughter, Polly T., wife of Thomas 
 C. Austin ; and of the other half, gave to the 
 defendant two negroes absolutely, and the 
 use of the residue for life, with remainder 
 in the residue to his said daughter in fee. 
 This estate was divided between the widow 
 and daughter of testator; and to the widow 
 were assigned, the homestead, ten negroes, 
 horses, hogs, household and kitchen furni- 
 ture, provisions, »S:c. Being in possession of 
 this estate, she married the intestate, Daniel 
 Mullins, who had no property, and was, and 
 continued to be, during life, drunken, in- 
 dolent and unthrifty. Soon after the mar- 
 riage, namely, September 5, 1829, Daniel 
 Mullins conveyed to a trustee all the prop- 
 erty of every description, real and personal, 
 to which he became entitled by virtue of his 
 marriage, with the income and profits thei'eof, 
 in trust for the sole and separate use of his 
 wife for life, with power in the trustee, with 
 her consent, to sell and reinvest ; "and iu 
 trust also to permit her, the said Jane Mul- 
 lins, by any will and testament, duly ex- 
 ecuted, to dispose of two-thirds of said proi> 
 eity, or two-thirds of such part as she could 
 have disposed of lawfully before her mai"- 
 riage with me, (himself.) and then in trust 
 to reconvey the remaining one-third of the 
 said property to me (himself) discharged of 
 the trust hereby created." This deed was 
 recorded September 7, 1S29, in the ofhce of 
 the Register of Mesne Conveyances for Spar- 
 tanburg — in which district the parties resid- 
 ed — and recorded May 23, 1833, in the office 
 of Secretary of State; and as this latter date 
 was within six months from the passage of 
 the Act of 1832, (6 Stat. 482.) the deed is 
 valid, according to the provisions of that 
 Act, against the debts, sales and mortgages 
 of the husband, contracted, made and execut- 
 ed after the ratitication of the Act. Thomas 
 C. Austin and Polly T., his wife, by release, 
 
 *82 
 dated December 10, 1829, con*veyed to Dan- 
 iel Mullins and Jane Mullins, all the interest 
 and remainder of the grantors, in the planta- 
 tion, slaves, stock, furniture and other 
 property, then in possession of the grantees 
 under the will of John James ; December 21, 
 
 1829, the said Polly T. renounced her inher- 
 itance ; and the deed was recorded April 5, 
 
 1830. About 1839, Daniel Mullins and wife 
 sold the James homestead to Harvey Finch 
 for $1,540, paid in 1840, '41 and '42. At what 
 times and for what prices the MuUinax and 
 Foster lands were purchased, it did not ap- 
 pear by the evidence, but it appeared that the 
 Mullinax tract consisted of eight acres, upon 
 which there was a shoal ; and the Foster 
 tract of 103 acres, mostly old field ; and I 
 inferred that the aggregate cost was less than 
 the price of the homestead. Except as to .$50 
 paid by Finch to Mullinax, and discounted 
 in the payment for the homestead, it did not 
 
 ,*^4 
 
 strictly appear from what funds these two 
 tracts were paid for; but from the evidence 
 as to the means and habits of Daniel Mullins, 
 and as to the sale of the homestead not other- 
 wise invested, I conclude that the payments 
 were made from the trust funds. It did ap- 
 pear that most of the labor and expense in 
 erecting and rel)airing the mill and dam on 
 the Mullinax tract was furnished and ex- 
 pended from the trust estate. Daniel Midlius 
 exercised sonae supervision in the erection 
 and repair of the mills, and in the manage- 
 ment of the plantation, but in the latter par- 
 ticular, at least, the defendant was the moi'e 
 efficient manager. D. Mullins also received 
 the proceeds of the crops, but in the dis- 
 bursement of them, as in payment of supplies 
 for the family and plantation, his wife gen- 
 erally attended and co-operated. All debts 
 for such supplies have been paid ; I)ut Mul- 
 lins, at his death in 1844, left unpaid large 
 liabilities to the plaintiff and others, con- 
 tracted as surety for one Williamson, who 
 had been substituted as trustee under the 
 aforesaid post-nuptial settlement. These 
 debts have no connection with the trust 
 estate, and they were contracted after the 
 registry of the deed in the office of tlie Sec- 
 retary of State. Williamson is dead, insol- 
 vent; and D. Mullins is utterly insolvent, 
 unless these two tracts of land are made 
 liable for his debts. 
 
 *83 
 
 *It was not contested on the part of the 
 plaintiff that if these two tracts of land 
 were purchased with trust funds, the trusts 
 of the deed would be imposed upon them; 
 nor was the fact of their being so purchased, 
 otherwise contested than upon the assump- 
 tion, that D. Mullins was entitled to receive 
 and disburse the proceeds of the crops of the 
 plantation which was settled ; and that he 
 was entitled to one-third of the corpus of 
 the estate in remainder ; and that he ap- 
 propriated his interest or share in these par- 
 ticulars to the purchase of these lands. 
 
 But under the deed, D. Mullins was not 
 entitled to any beneficial interest in the in- 
 come of the trust estate, and if in fact he 
 received and disbursed this income, he must 
 be considered as doing so in the character 
 of agent or trustee for the cestui que trust ; 
 and it is at the option of the cestui que 
 trust to pursue him for the debt arising 
 from his breach of trust, or to claim the 
 lands in which the trust funds have been 
 invested. (Story Eq. § 1210-11; 322.) 
 
 It is true, that at the death of the defend- 
 ant, the representatives of D. Mullins will 
 be entitled to a reconveyance of one-third 
 of the estate settled, which defendant might 
 lawfully dispose of ; but this estate in re^ 
 mainder being unproductive, afforded Mul- 
 lins no means or resources for the purchase 
 of property. As to the extent and particu- 
 lars of the estate in which Mullins has an 
 interest of one-third in remainder under
 
 BOMAR V. MULLIXS 
 
 'fSG 
 
 the trust deed, some perplexing;; questions 
 may arise, whicii are not necessary to the 
 determination of this case. E.xcept as to the 
 two nejiroes absolutely helonicinj; to Jane 
 Mullins at the time of tlie settlement, tliere 
 was no property in her at that time of which 
 .she could lawfully dispose at her deatii; and 
 as it is not dear, that beyond one-third of 
 these negroes. Mullins has any vested inter- 
 est or remainder, it is prudent to reserve 
 auy opinion, until, upon the determination 
 of the life-estate, the proper parties can be 
 brought before the Court. 
 
 It is said, however, that from the sale of 
 the James homestead by Mullins and wife, 
 a fund came into the hands of Mullins. which 
 he was entitled to appropriate lo his own use, 
 
 *84 
 adequate for the *purchase of the Mullinax 
 and Foster tracts. In tiie homestead, under 
 the will of her former husband and the set- 
 tlement of ^lullins. Jane Mullins was entitled 
 to a life estate. By the deed of Austin and 
 wife to Mullins and wife, executed after the 
 settlement, vhe remainder in fee was convey- 
 ed to Mullins and wife; and such convey- 
 ance in general constitutes a peculiar estate 
 of which the main incidents are, that both 
 are seized of the entirety — neither can alien 
 so as to bind the other, and the survivor 
 takes the whole. (2 Kent. l.'>2 ; 4 Kent, oG2.) 
 As the conveyance of the whole e.state in this 
 laud to Finch was apparently with the con- 
 sent of the husband and wife, the husband, 
 prima facie, would be entitled to a portion 
 of the value of the remainder in fee in the 
 lands. But the money paid as the considera- 
 tion of the conveyance of the land, negroes, 
 &c., in fee from Austin and wife, .i;3,200, 
 must have been derived from the estate set- 
 tled to the separate use of Jane Mullins, and 
 the estate thus purchased should be charged 
 with the trusts of the settlement. 
 
 It is ad.iudged and decreed that the Mul- 
 linax and Foster tracts of land belong to 
 the trust estate settled by the deed of Daniel 
 Mullins. dated September 5, 1829. It is also 
 ordered that the plaintiff pay the costs of 
 this suit. 
 
 Tlie complainant appealed, on the grounds 
 
 1. Because the lands in dispute were tlio 
 property of I). Mullins, and there is no proof 
 that they were paid for by the trust funds ; 
 the titles being in him, the decree sliould have 
 been for plaintiff. 
 
 2. Because D. Mullins was entitled to one- 
 third of the entire estate which he conveyed 
 in trust, wliich gave him means to purchase 
 this property. 
 
 ."!. Because the sale of the homestead in 
 whicli he was interested to the extent of one- 
 third, was ample means in his hands to pay 
 for these two small tracts of land. 
 
 4. Because the decree was against law and 
 evidence and the facts of the case. 
 
 Bobo, for appellant. 
 
 , contra. 
 
 *85 
 *Tlie opinion of the Court was delivered by 
 
 WAliDLAW, Cli. The parties to this suit 
 are tlie administrator and the widow of Dan- 
 iel Mullins. who died intestate; and the sub- 
 ject of the suit is tlie rents and profits of 
 land: wliich land is claimed on one side to 
 belong to the intestate, and on the other to 
 belong to the trust estate of defendant. 
 Debts of the intestate are incidentally men- 
 tioned in the course of the proceedings, but 
 the creditors are not made parties to the bill ; 
 and the case is to be determined on me prin- 
 ciples which would be api)licable to a suit 
 between the intestate and the defendant. 
 The riglit of an administrator to interfere at 
 all witli the lands of his intestate, is so eipiiv- 
 ocal, that we are not bound to recognize liis 
 claim for rents and profits, where the lands 
 are held by a^^•erse title. The circuit de- 
 cree refuses to the plaintiff the relief he 
 seeks, and has no otlier result. It does not 
 conclude the claims of any person who is not 
 a party nor a privy to the suit. 
 
 Upon the question of fact, whether the Fos- 
 ter and Mullinax tracts were purchased with 
 the trust funds of the defendant, this Court 
 will not review closely the judgment of the 
 Chancellor. The proof of the fact is not di- 
 rect and precise, but is .satisfactorily deduc- 
 ed from all the circumstances of the case. 
 Granting that it might be insuthcient to in- 
 duce tlie active interposition of the Court in 
 favor of the defendant, if she were claiming 
 a remedy, it affords abundant justification 
 to the Court in staying its hand, and leaving 
 the parties where they are found. 
 
 The conclusion of the Chancellor as to the 
 fact, is assailed, principally, under the third 
 ground of appeal, upon the assumption, that 
 by the sale of the homestead to Finch, the in- 
 testate converted into money an interest in 
 remainder to which he was legally entitled; 
 and that he invested this money in the two 
 tracts now in controversy. 
 
 If the remainder in the homestead were at 
 first purchased by Mullins and wife from 
 Austin and wife, with the trust funds of de- 
 fendant, tlie trusts would follow the re-in- 
 vestment; upon general principles, and ac- 
 cording to the express terms of the settle- 
 *86 
 
 *ment of D. Mullins. That this remainder 
 was so purchased, can hardly be doubted, if 
 we bear in mind that this purchase was made 
 three montlis after the settlement, and little 
 longer after the marriage of Mullins and 
 wife; and that Mullins had no means of his 
 own. 
 
 Supposing, however, that D. Mullins con- 
 tributed from his private resources to the 
 purcliase of this remainder, still he would 
 not be entitled in equity, to any portion, dur- 
 ing the life of his wife, of the proceeds of a 
 subsequent sale of the whole estate in the 
 
 35
 
 *86 
 
 4 EICHARDSON'S EQUITY REPORTS 
 
 land. Jane Mullins, under the will of her 
 former husband, was entitled to an estate 
 for life in this land, and this estate was set- 
 tled to her sole and separate use by the deed 
 of D. Mullins. Afterwards Mullins and wife 
 acquired an estate in entirety in the remain- 
 der in fee. These estates will not be suffered 
 to coalesce. There would be no merger of 
 such estates at law. The title of one of Mr. 
 Preston's chapters, in his treatise on mer- 
 ger, is: 'The freehold of the wife will not 
 in any case merge in the freehold of the hus- 
 band.' Where the husband has a freehold 
 and also the fee in right of bis wife, and 
 there is no particular reason for keeping the 
 estates apart, the law permits the merger ; 
 but if one of the estates, the freehold or the 
 fee, be held by entirety, as in this case, the 
 reason for exemption from merger is appli- 
 cable. (Preston on Merger, 308 ; Shep. Touch. 
 316.) If there had been a legal merger, that 
 would not be pei-mitted in this Court to de- 
 feat equitable estates and interests. (Thorn 
 V. Newman, 3 Swan. 603 ; Nurse v. Yerworth, 
 lb. 60S.) Much less, where there is no legal 
 merger, will this Court introduce the doctrine 
 of merger into trusts, merely for the purpose 
 of defeating equities, and destroying its own 
 jurisdiction in the protection of the interests 
 of married women. (Whittle v. Ilenning, 2 
 Phil. 731.) The rules of this Court for the 
 protection of married women are designed to 
 protect them against the influence of their 
 husbands, when exercised for appropriating 
 to themselves property which the wives ought 
 to enjoy. The Court will protect the rever- 
 sionary interest of the wife in personalty, by 
 
 *87 
 considering it still rever*siouary, notwith- 
 standing all interested in the precedent es- 
 tate, by surrender or otherwise, may attempt 
 to unite all parts of the estate in her per- 
 son, for the purpose of enabling her to dis- 
 pose of the whole. (Whittle v. Ilenning.) 
 The Court will not consent that she shall 
 waive her chances of survivorship. The wife, 
 in the present instance, equally needs this 
 protection as to her real estate. It is doubt- 
 ful, whether a life estate in the wife is her 
 inheritance, in the sense in which the word 
 is used in our statute, prescribing a form by 
 which she may convey her inheritance. («) 
 At least, equity requires us to consider the 
 proceeds of the sale of her land as still re- 
 taining the incidents of the original estate — 
 and that she is still entitled to the income for 
 her separate use for life, with the chance 
 of taking the whole capital by survivorship, 
 as an incident of the estate by entirety. Ac- 
 cording to this view, D. Mullins was not en- 
 titled to appropriate to his own use any por- 
 tion of the money received from Finch, the 
 vendee. 
 We concur with the Chancellor, that D. 
 
 (a) Hays v. Hays, 5 Kich. 31. 
 
 Mullins is not entitled to a present interest 
 of one-third of the estate conveyed by his 
 deed. It would be a preposterous construc- 
 tion, which would give him a right to imme- 
 diate re-conveyance of one-third of the estate, 
 when he expressly gives the whole to his wife 
 for life, and also gives to her the right to 
 dispose of two-thirds thereof by will. His 
 claim to the re-conveyance of one-third is sub- 
 ject and subsequent to these rights of the 
 wife. 
 
 It is ordered and decreed, that the decree 
 be affirmed, and the appeal be dismissed. 
 
 JOHNSTON and DARGAN, CC, concurred. 
 
 DUNKIN, Ch., absent at the hearing. 
 Decree affirmed. 
 
 4 Rich. Eq. *88 
 
 * SAMUEL MEEK v. W. H. B. RICHARD- 
 SON and Others. 
 
 (Columbia. Nov. and Dec. Term, 1851.) 
 
 [Couris (®=5S2.] 
 
 The practice, under the rides of Court, may 
 be moulded at the discretion of the Chancellor, 
 so as to meet the exigencies of the case, and to 
 promote the ends of justice: and with this pur- 
 pose he may suspend their operation iu particu- 
 lar cases, where justice seems to require it: ob- 
 serviug- them as a general chart by which the 
 proceedings of the Cou.'t are to be conducted, 
 where no special equity makes a deviation 
 proper. 
 
 [Ed. Note.— Cited in Messervev v. Hillier, 12 
 Rich. 491: Scott v. Davis. 9 Rich. Eq. 40; 
 Tiudal V. Tindal, 1 S. C. 113. 
 
 For other cases, see Courts, Cent. Dig. § 
 295 ; Dec. Dig. (®=3S2.] 
 
 [Appeal and Error <©==>87.1 
 
 From the exercise of such discretion on the 
 part of the Chancellor, in enforcing or suspend- 
 ing the rules, no appeal lies. 
 
 [Ed. Note. — For other oases, see Appeal and 
 Error, Cent. Dig. § 5S6 ; Dec. Dig. <©=>87.] 
 
 Before Dargan, Ch., at Sumter, June, 1851. 
 
 The bill in this case was filed April 15, 
 1851, and on April 21, subpoenas to answer 
 were duly served on the defendants, who re- 
 sided about thirty miles from the Court 
 House. On June 2, the bill was taken pro 
 confesso. On Tuesday, June 3, the sitting of 
 the Court for Sumter commenced, and on that 
 day the order pro confesso was set aside as 
 to the defendant, W. H. B. Richardson, and 
 he tiled his answer. On Wednesday, the case 
 was continued, and on Friday, June 6, the 
 other defendants, John P., James B., Thomas 
 C. and Richard C. Richardson, moved, by 
 their solicitors, F. J. & M. Moses, that, as 
 aginst them, the order pro confesso be set 
 aside and that they have time to answer. In 
 support of the motion, an affidavit and state- 
 ment were submitted, as follows: 
 
 "Thomas C. Richardson, one of the de- 
 fendants to the case of Samuel Meek, makes 
 
 oG 
 
 (S=For other cases see same topic and KEY-NUMBER iu all Key-Numbered Digests and Indexes
 
 MEEK V. RICHARDSON 
 
 *91 
 
 oath that on 21st April last, he was served 
 with process of sulip. ad resp. ; that his 
 brothers John and James R. were also serv- 
 ed. That at reipiest of his brothers, he 
 wrote to Col. Moses to entrage his services, 
 and bejijring to he informed what they must 
 do in the matter. That it turned out that 
 Col. Moses was in Charleston, and on the 
 first Tuesday of the sitting of the Appeal 
 Court, he met Col. Moses at the depot, who 
 had not then received the letter, and it was 
 agreed between him and Col. M., that as soon 
 as Col. M. returned from Columliia he would 
 write by mail to defendant when to come up. 
 That Col. Moses has informed him that he 
 wrote a joint letter to deponent and his 
 
 *89 
 ♦brothers, informing them he was at home, 
 and they must come up before first Monday 
 in June to file their answers. He swears that 
 to this day he has never received the letter 
 or heard of it from either of his l)roth(>rs. 
 and believes it was never received. That 
 waiting to hear from Col. Moses they did not 
 come up, and only now came upon his .send- 
 ing an express down for them. He swears 
 it was entirely from the fact that his action 
 was to depend on the notice of Col. Moses, 
 tliat he did not come up; that the complain- 
 ant lias not a shadow of law, justice or mo- 
 rality in the claim he has .set up against him. 
 and to deprive them of the opportunity of 
 answering, under the circumstnnci's, would be 
 inequitable. This deponent further says, he 
 informed his brothers of the understanding 
 with Col. Moses: deponent swears he did not 
 know the Court was sitting until the messen- 
 ger of Col. M. came down." 
 
 "Defendants' solicitor stated that an affi- 
 davit was then in the course of writing, near- 
 ly completed by Richard C. Richardson, an- 
 other of defendants. 
 
 "The Chancellor said it was unnecessary, 
 as he would regard the affidavit already 
 made as extending to all the defendants. 
 
 "Mr. F. J. Moses, defendants' solicitor, 
 submitted the following .statement, affidavit 
 to which was disiiensed with by complain- 
 ant's solicitor, 
 
 "That about the last of April, 1851, he 
 met Richard C. Richardson in Charleston; 
 that said Richardson expressed gratification 
 at meeting him, stating that he desired to see 
 him on business; that he had been served 
 with a writ by one Samuel Meek, requiring 
 him to appear at Sumter Court House in 
 ten days, and lie did not desire to be guilty 
 of any neglect in making his defence; wished 
 it attended to. Counsel explained the pro- 
 cess to him, infornung him he would have 
 to answer, which he could not do without 
 a coi»y of the bill ; that he would leave 
 Charleston (as \\<i ovfiecte.d) on ."^Oth April, 
 go to the Court of .\t:.jk'.V,3 at Columbia the 
 week foluiwing, and r,x>. \iiM return from Court 
 of Api)eais. would wrltr- him when to come 
 up, and prepare his answer. 
 
 'That on Tuesday morninc 
 *90 
 
 the Cth May. 
 
 Mr. Moses, on his *way to the Court of Ap- 
 peals, met at Middleton depot, the defend- 
 ant, Thomas C. Richardson, who informed 
 him of the suit by Meek, and the wish of his 
 brothers and himself to engage his profes- 
 sional services ; that he had written a let- 
 ter to Mr. M., on the subject, which letter 
 Mr. M. had not then received. 
 
 "Mr. M. informed him, that on his return 
 fnmi the Appeal Court, he would write t<) 
 him and his brothers, informing them when 
 they must come up and attend to the filing of 
 the answer, tfcc. That on his return from 
 Court of Aiipeals, which was on the night of 
 May 8, he found at his office the letter allud- 
 ed to by said T. C. Richardson, dated April 
 .30, post-marked May 1. 
 
 "Mr. M. further .states, that within at far- 
 thest, as he thinks, two days after his re- 
 turn home, he wrote a letter by mail ad- 
 dressed to John P. Richanlson, James B. 
 Richardson, and Thomas (\ Richardson, at 
 Fulton post office, informing them they nnist 
 come up before the first Monday in June, to 
 prepare the answer in the Meek case, and 
 that by same mail, he addressed a letter to 
 the same effect to the said Richard C. Rich- 
 ardson. 
 
 "That during the term, as they did not 
 come up, on Wednesday evening, he sent a 
 letter down for them, and three of them ap- 
 peared in Court at its oi>ening on Friday 
 morning, and sulinntted the motion above set 
 forth." 
 
 As stated in the brief, his Honor the Chan- 
 cellor said, that if he considered lie had any 
 discretion in the matter, the cause shewn 
 was abundant for its exercise in favor of the 
 application, but that as he regarded his 
 hands tied by the rule of Court, he was 
 obliged to overrule the motion. 
 
 The defendants appealed, on the grounds: 
 
 1. Because, under the circumstances, the 
 said order should have been granteil. 
 
 2. Because the Court has the entire con- 
 trol over the pleadings of a cause, and the 
 right to permit an answer to be filed at any 
 time, when by so doing the complainant could 
 in no wise be prejudiced. 
 
 3. Because the cause having been continu- 
 
 *91 
 
 ed, the complainant *coul(l not have lieen de- 
 layed or otherwise prejudiced by the motion. 
 
 4. Because the failure to file the answer 
 on the day of the meeting of the Court was 
 the effect of accident and surprise, from 
 which the said defendants were entitled to 
 relief, and the refusal of leave to do .so, 
 would seriously affect them in their defence 
 on the merits of the case. 
 
 F. J. Moses, for appellants. 
 De.Saussure. contra. 
 
 The opinion of the Court was delivered by 
 
 37
 
 *91 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 DARGAN, Ch. I did not hold on the cir- 
 cuit, as the brief represents, that tliere were 
 no circumstances under which the Chancel- 
 lor could exercise the discretion of relax- 
 ing the 36th rule of Court. On the con- 
 trarj', I said, distinctly, that there were ex- 
 traordinary circumstances, such, for Instance, 
 as accidents resulting from the act of God, 
 which would justify the Chancellor pro hac 
 vice to set aside the rule, and to permit the 
 answer to be filed on such equitaljle condi- 
 tions as he might think proper to impose. 
 And I put cases by way of illustrating my 
 views. I said, that if the omission was oc- 
 casioned by sickness, or any other calamity 
 or misfortune, which occasioned the answer 
 not to be filed in time, I would feel myself 
 authorized to interpose. But I did not con- 
 sider the case as falling within that class. 
 It was an omission, which did not result from 
 calamity, misfortune, sickness or inevitable 
 accident. In the case made by the affidavits, 
 and similar cases, I considered the rule as 
 of imperative obligation, and in reference 
 to such cases, used language very much like 
 that imputed to me in the brief. 
 
 It is the opinion of this Court, that the 
 practice under the rules, may be moulded at 
 the discretion of the Chancellor, so as to 
 meet the exigencies of the case, and to pro- 
 mote the ends of justice. And with this 
 purpose in view, he may suspend their oper- 
 ation in particular cases, where justice seems 
 to require it ; observing them as a general 
 chart by which the proceedings of the Court 
 
 *92 
 are to *be conducted, where no special equi- 
 ty makes a deviation proper. At the same 
 time it is the clear doctrine, that the exer- 
 cise of such a discretion on the part of the 
 Chancellor, in enforcing or suspending the 
 rules, is not a matter from which an appeal 
 will lie. Where there is a right to exercise 
 discretion, there is no right of appeal from 
 its exercise. 
 
 I am now persuaded, that I had a greater 
 latitude of discretion than I had supposed 
 on the circuit. As the parties and their 
 counsel did appear to have used a consider- 
 able degree of diligence, with my present 
 views, if the case were now before me, I 
 should allow the defendants, on the case 
 made, to file their answers. On this state- 
 ment to the other members of the Court, and 
 on my own motion, this Court has consented 
 to reverse the decision of the circuit Court, 
 and to grant the defendants leave to file 
 their answers. 
 
 It is ordered and decreed, that the order 
 pro confesso be set aside; that the defend- 
 ants have leave to file their answers on or 
 before the first day of March next. 
 
 JOHNSTON, DUNKIN and WARDLAW, 
 CC, concurred. 
 Decision reversed. 
 
 4 Rich. Eq. 92 
 
 JOHN PETTUS and Otlieis v. W. J. CLAW- 
 SON and Others. 
 
 (Colimil)ia. Nov. and Dec. Term. 1851.) 
 
 [Liniifation of Affions ©3^102.] 
 
 Where on the last annual return of an ad- 
 ministrator with the will annexed, the ordinary 
 struck a balance, and gave him a certificate 
 that the balance thus ascertained was the sum 
 due by him on his account.s, — held, that such act 
 of the administiator, having been done in a pub- 
 lic office, open for the information of parties 
 interested, and purporting to be a final settle- 
 ment, gave currency, from its date, to the stat- 
 ute of limitations : and that such of the legatees 
 as were then adult, or, being infants, failed to 
 prosecute their rights against the administrator 
 within the statutory period after arriving at 
 age, were barred. 
 
 [Ed. Note. — Cited in Frieks v. Lewis. "26 S. 
 C. 239. 240, 1 S. E. SS4 : Ariail v. Ariail, 2!) 
 S. C. 93, 7 S. E. 35: Boyd v. Munro. 32 S. 
 C. 253. 10 S. E. 9(J3: Robertson v. Blair & 
 Co.. 50 S. C. 110. 34 S. E. 11, 76 Am. St. 
 Rep. 543: Kilgore v. Kirkland, 69 S. C. 86, 
 48 S. E. 44. 
 
 For other cases, see Limitation of Actions. 
 Cent. Dig. § 505; Dec. Dig. <g=»102.] 
 
 {Equity (S=>423.] 
 
 I'pon demands not bearing interest at law, 
 equity usually allows interest, but may in its 
 discretion withhold it. 
 
 [Ed. Note. — Cited in Tompkins v. Tompkins, 
 IS S. C. 25: Turnipseed v. Sirriue, 60 S. C. 
 287, 38 S. E. 423: Bowen v. True, 74 S. C. 
 489, 54 S. E. 1018. 
 
 For other cases, see Equity, Cent. Dig. §§ 
 986-990, 992-998. 1009-1014; Dec. Dig. <^==> 
 423.] 
 
 *93 
 [Infants <®=:3l05.] 
 
 *As laches cannot be imputed to an infant, 
 he should, it seems, always be allowed interest 
 where he prosecutes his rights within the stat- 
 utory period after arriving at age. 
 
 [Ed. Note. — For other cases, see Infants, Cent. 
 Dig. §^ 302-305. 307, 311-313, 322; Dec. Dig. 
 <©=3l05.] 
 
 [Executors and Administrators <©=^104.] 
 
 In charging an administrator with interest, 
 not only should all funds received in the current 
 year be regarded as unproductive until the chisc 
 of it, but all expenditures in the course of the 
 year should be regarded as made before the 
 balance is struck, to bear interest. 
 
 [Ed. Note. — Cited in Tompkins v. Tompkins, 
 18 S. C. 28; Nicholson v. Whitlock, 57 S. C. 
 42, 35 S. E. 412. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 428; Dec. Dig. <®=:3l04.] 
 
 [Executors and Administrators <©=>72.] 
 
 Before an administrator should be charged 
 with notes marked by the appraisers on the 
 inventory as good, there should be some proof 
 of their collection, or of negligence in collecting. 
 
 [Ed. Note. — Cited in Tompkins v. Tompkins, 
 IS S. C. 27. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 321; Dec. Dig. <®=>72.] 
 
 Before Wardlaw, Ch., at York, June, 1851. 
 
 Wardlaw, Ch. This suit is brought by the 
 legatees and representatives of legatees of J. 
 D. O. K. I'ettus for an account and settle- 
 ment of his estate. 
 
 J. D. O. K. Pettus died October 29, 1821, 
 leaving of force his will dated March 24, 
 
 3S 
 
 <g=;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 TETTUS V. CLAWSOX 
 
 *9o 
 
 ISIO, whiToliy ho save liis estate, aftiT the 
 payment of his debts, in iine<iual portions 
 to his wife, Violet, and his two children, liv- 
 ing at the date of the will, 8tei)hen and 
 Hannah M. A. Another son. John, was born 
 to the testator May Ki. ls:Jl, about 3% 
 years after the birth (if Hannah, and 5 years 
 after the birth of Stephen. Stephen Pettus, 
 senior, administered with the will annexed, 
 and on January S. iM'li. sold the whole 
 estate, except two negroes, Ellick and Venus, 
 which, after beinij: hired out one year, were 
 delivered to the widow, Violet, under the 
 becpiest of them to her for life. The said 
 administrator made annual returns of his 
 transactions for several years, not includ- 
 iufi, however, charges for interest on annual 
 balances, nor credits for connni.ssions. In 
 the last of these aimual returns, on Janu- 
 ary 5, 1S21), the balance appearin^t ajiainst 
 the administrator on his whole receipts and 
 expenditures, is .$2ss.<.»G%. and the ordinary 
 gave the administrator a certificate that this 
 sum was the balance due. Violet Pettus 
 removed with her children to North Carolina 
 in 1822. and died there February 21, 1S29. 
 No administration here has been taken out 
 on her estate. Her sealed note for $330.15, 
 for purchases at the administrator's sale 
 of her husband's estate, is produced as un- 
 paid. In 1845, Thomas Koswell, who had 
 *94 
 
 married *IIanHah, daughter of testator, cit- 
 ed the administrator, Stephen Pettus, be- 
 fore the ordinary to account, but no decree 
 was made by the ordinjiry. Stephen Pettus, 
 senior, died in 1S4G. and defendant, Clawson, 
 administered upon his chattels and credits. 
 Stephen Pettus, junior, and Hannah Koswell 
 have also died at dates not appearing. The 
 original bill in this case was tiled May 
 14, 1847, by John Pettus, Thomas Roswell 
 and his infant daughter, Mary V. Roswell, 
 all residents of North Carolina, against W. 
 J. Clawson, administrator of Stephen I'ettus, 
 senior ; and afterwards, in 1848 or 1849, on 
 a day not appearing by my copy, a sup- 
 plemental bill was liled by J. C. Smith, as 
 administrator of Hannah Koswell and Ste- 
 phen Pettus, jr. 
 
 The connnissioner of the Court being de- 
 fendant, the matters of account, all equities 
 being reserved, were referred specially to 
 J. B. Smith, a solicitor of the Court. To his 
 report, and to the accompanying evidence in 
 writing, I refer for any further .statement 
 of the facts which may be necessary. 
 
 The report of the special connnissioner is 
 well considered and clear, but I think fails 
 in giving proper intiuence to the lapse of 
 time. Applying rules fit enough for recent 
 administrations, the connnissioner has at- 
 taincjd Uie startling result, that the estate of 
 Stephen Pettus, senior, was indebted, on 
 June 17, 1851, on his administration of the 
 estate of J. D. O. K. Pettus, in the sum of 
 $4,268.10, and this he distributes, on prin- 
 
 ciples which seem unexceptionable, among 
 the widow and children of testator or their 
 representatives. At the day of tiling the 
 bill in this case, which, when tiled, present- 
 ed regularly the claim of John Pettus only, 
 there had been the lapse of more than 25 
 years from the grant of the administration 
 to the defendant's intestate, more than 18 
 years from the last authentic act of the in- 
 testate in the adnnnistration. and five years, 
 lacking a day, from the maturity of the stat- 
 utory legatee, the youngest of the original 
 parties in interest; and, in the meantime, 
 trustee and beneficiaries, except one, had 
 all died. 
 
 The citation to account before the ordi- 
 nary does not obstruct the innnunity from 
 time, because it was abortive and not pur- 
 
 *95 
 sued *within reasonable time by subseipient 
 proceedings, and instituted irregularly by 
 the aiiplicant alone, if his wife were alive, 
 and not officially if she were dead. Acts done 
 in a public oftice, open for the information 
 of parties interested, must be taken notice 
 of by them ; (Payne v. Harris, 3 Strob. Eq. 
 42) : and if Stephen Pettus's return to the 
 ordinary of January 5, 1829, had purported 
 more clearly to be a full execution of his 
 trust, the claims of all the plaintiffs mij^ht 
 have been considered as barred by the stat- 
 ute of limitations, except that of John Pet- 
 tus, saved by a day. Under all the circum- 
 stances, the claims of the plaintiffs must 
 be restricted to the narrowest limits con- 
 sistent with the rules and principles of the 
 Court. In my judgment, the plaintiff's are 
 not entitled to more than, taking the burden 
 of proof, to surcharge and falsify the 
 accounts current of Stephen Pettus, in or- 
 der to ascertain the amount of the surplus 
 he owed, as administiator. to the legatees, 
 on January 5, 1829, allowing the defendant 
 the same privilege of correction. Thus in- 
 terest against the administrator to the time 
 mentioned and commissions in his behalf, 
 and other receipts and expenditures by him, 
 actually proved, may be taken into the cal- 
 culation, and other mistakes may be C(»r- 
 rected. I am not satisfied with the mode 
 of calculating interest pursued by the com- 
 missioner, in ascertaining the balance due 
 on January 5, 1829. although he seems to be 
 justified by the ca.se of Davis v. Wright, (2 
 Hill, 5li0). It is so difficult to save the most 
 honest and dili,gent trustee from loss by the 
 moth of interest, that not only shoiild all 
 funds received in the current year lie re- 
 garded as unproductive until the close of it, 
 but all expenditures in the course of the 
 year should be regarded as made before the 
 balance is struck, to bear interest; such 
 mode of calculation is adopted in the offices 
 more particularly under my obs(>rvation (a). 
 
 I am further of the opinion, that, under 
 
 («) Vide Dixon v. Hunter, 3 Hill. 204; Dun- 
 can V. Tobin, Cbev. Ey. 143 [34 Am. Dec. 605]. 
 
 39
 
 *95 
 
 4 RICHARDSON'S EQUITY RKl'ORTS 
 
 the circumstances of this ease, the sum 
 thus ascertained to be in the liands of the 
 administrator, on January 5, 1829, should 
 bear interest only from the filing of the l)ill. 
 Interest is not incident in strict right to 
 
 *96 
 ■*mere delay of payment, unless it be secured 
 by contract, or follow a breach of trust. 
 <Bell V. Free, 1 Swan, 90; Gittins v. Steele, 
 lb. 199; Payne v. Harris, 3 Strob. Eq. 44; 
 Smith V. Hunt, 3 Rich. Eq. 4G5 ; Davis v. 
 Wright, 2 Hill, 567.) In the last case it is 
 said, "Interest is given as legal damages for 
 the unlawful detention of a debt ; can there 
 be any unlawful detention when there is no 
 one authorized to receive? It is clear there 
 cannot be; when a day is fixed for payment 
 of an ascertained sum, and it is not then 
 paid, interest is generally the necessary con- 
 sequence of the neglect ; but to this position 
 are some exceptions. In this case, when 
 was the debt payable? 'On demand' is the 
 answer. There could be no demand until 
 administration was granted, and hence in- 
 terest was not recoverable sooner." So, in 
 the present case, the lack of authority for 
 any person to receive the shares of the in- 
 fant legatees, and their own laches, after 
 maturity, in demanding payment, justify the 
 exercise of a sound discretion in refusing in- 
 terest. 
 
 The defendant filed various exceptions to 
 the commissioner's report, and I have al- 
 ready availed myself of the sixth objection 
 to the general principles of the report, to 
 express my views on the equities reserved. 
 I shall notice cursorily some of the others, 
 principally for the sake of illustration. 
 
 The first objects to the allowance of .$128.- 
 89 of notes, and $30.60 of accounts, marked 
 by the appraisers on the inventory as good, 
 not charged by the ordinary, nor proved to 
 be collected by the administrator. I think 
 plaintiffs are bound to furnish some proof of 
 the collection of these demands, or of uegli- 
 ligence in collecting. 
 
 The second objects to the allowance of 
 certain sums received on fi. fas. of intestate, 
 and another sum for rent. These items 
 seem to be fairly proved by plaintiffs, in 
 surcharge of the accounts current. 
 
 The third objects to the omission of vari- 
 ous items of credits allowed by the ordinary. 
 The omission was not verified to my satis- 
 faction in most of the instances. The pay- 
 
 *97 
 ment of $66.72 on * Alexander's note was suf- 
 ficiently vouched, and was omitted by in- 
 advertence and should be allowed. Tlie 
 items of .$683.64 and .$78, vouched by the 
 receipts of Violet Pettus, as paid for the 
 board of her children and medicines for 
 them, are not sufiiciently falsified by the 
 proof that her relations and neighbors are 
 ignorant and distrustful of her receiving 
 these sums. The other reason assigned for 
 rejecting these items, that her share in 
 40 
 
 the estate should be set off against these 
 claims, cannot operate in a suit to which 
 she is no party. These should be reconsid- 
 ered. 
 
 The fourth objects to the exclusion of in- 
 terest accruing, after the sale bill fell due, on 
 demands bearing interest, and the costs paid 
 by the administrator and allowed l)y the 
 ordinary. On this point the commissioner 
 has followed the general rule, but it deserves 
 his reconsideration, whether actual payments, 
 so long made and .so proved, should be set 
 afloat on a naked presumption. It would be 
 more satisfactory to have express evidence 
 that the administrator, with funds in his 
 hands, did not promptly paj-, when presented, 
 demands so obviously just as to need no liti- 
 gation. An original debtor is in default if 
 he does not punctually fulfil his contracts ; 
 but one made a debtor by relation, may know 
 nothing of the justness of the claims upon 
 him. or even of their existence ; some of the 
 debts, upon which the interest (which has 
 been rejected) accrued after the sale notes 
 fell due. were owing to CTeditors in another 
 State. We nuist not expect from trustees 
 more than the ordinary diligence of men in 
 their own affairs. 
 
 The fifth exception complains that the com- 
 missioner has placed the debts and credits in 
 years different from those in which they are 
 set down in the accounts current, audited by 
 the ordinary. As I understand the matter, 
 these changes have been made in conformity 
 to the dates of the vouchers themselves, and 
 amount merely to the correction of mistakes. 
 
 It is ordered and decreed, that the report 
 be recommitted to the special commissioner, 
 to be reformed according to the principles 
 of this opinion, with leave to either of the 
 parties to offer additional evidence. 
 *98 
 
 *The complainants appealed, on the follow- 
 ing grounds, viz: 
 
 1. Because, according to the decree, inter- 
 est on the amount in the hands of Stephen 
 Pettus, administrator of J. D. O. K. Pettus, 
 on 5th January, 1829, is only to be calculated 
 from the date of the filing of the bill in this 
 case — when it is submitted that interest 
 should be charged from said 5th of January, 
 1829, and that under the circumstances of the 
 case, as proved, it would be against equity 
 and right to restrict interest as allowed in 
 the decree. 
 
 2. Because, at all events, interest should 
 be allowed from the time of the citation to 
 account before the ordinary, and it is respect- 
 fully submitted, that the Chancellor was mis- 
 taken as to the fact of said citation being 
 irregularly issued and not prosecuted with 
 due diligence, it being proved that both Ros- 
 well and wife were parties to the proceedings 
 in the ordinary's court, and that the bill in 
 this case was filed shortly after the death of 
 Stephen Pettus and in due time. 
 
 3. Because, it is submitted, that tlie mode
 
 PETTUS V. CLAWSON 
 
 noi 
 
 atraiiist the estate, and to derive beiietit to 
 hiiuself from his iie>-'lifieiue. 
 
 4. liecanse his Honor hehl that the eoni- 
 phiinants shoidd furnish evidenei' that 
 Stephen I'ettus, administrator, liad eollected 
 tile notes and accounts inventorii'd by liim 
 as good, when, it Is respectfully sulmiitted, 
 the burthen of proof sliould be thrown on 
 the defendant, and the complainants showed 
 enough by producing the inventory. 
 
 5. Because, it is submitted, his Honor er- 
 red in holding the defendant was entitled 
 to a credit of -I^US."!, and also of ^IS for charges 
 of Violet Tettus against her children for 
 board and medicine, when there was not 
 only the absence of all proof to shew the pay- 
 ment of these sums, but abundant evidence 
 to shew said children were maintained by 
 their grandfather, and not by A'iolet I'ettus. 
 
 *99 
 *6. Because, if said sums of ifOS;; and $78 
 are allowed as credits to the defendant, the 
 same should be taken from the share of 
 Violet I'ettus, and the complainants should 
 be charged with no part of same. 
 
 Williams, for appellants. 
 Witherspoon, contra. 
 
 The opinion of the Court was delivered by 
 
 DAKCiAN, Ch. J. D. O. K. I'ettus died 
 L'9th October, 1S21, having duly executed his 
 will, which bears date the 24th of March, 
 1819. The testator disiioses of his whole es- 
 tate in une<iual proportions, in favor of his 
 wife, Violet, and his two children then in 
 esse: namely, Hannah, born in 1S17, and 
 Stephen, born in the year 1816. After the 
 execution of the will, to wit, on the IGth May, 
 1821. John, another son, was born to the tes- 
 tator; for whom, as born after its execution, 
 the will made no provision. As a pretermit- 
 ted child, (according to the rules of law upon 
 the subject,) John is entitled to be let into 
 the possession and enjoyment of a portion of 
 his father's estate disposed of by the will. 
 His share is to be raised by contributions 
 from the legacies given to the other children ; 
 and in amount must equal the average of 
 those legacies. 
 
 One Stephen I'ettus became the administra- 
 tor, with the will annexed, and on the Sth Jan- 
 uary, 1822, sold the whole estate, with the ex- 
 ception of two negroes, which were disposed 
 of according to the betiuests of the will. He 
 made annual returns of his accounts with the 
 estate, to the ordinary, for several years; 
 in the last of which, made on the ath Janu- 
 ary. 182!>. the balance appearing against the 
 administrator on account of his whole re- 
 ceipts and disbursements, is i);28S.!)(;. The 
 ordinary then gave him a certificate, that this 
 
 ruary. I.s2!). The children, and the heirs at 
 law and distributees of those who are dead, 
 have resideil in that State ever since. There 
 has iieeii no administration upon the estate of 
 
 *100 
 Vio*let I'ettus. In 184rt. Thomas Koswell, 
 who had intermarried with Hannah I'ettus, 
 (the daughter of the testator.) cited Stephen 
 I'ettus, the administrator, before the ordinary 
 to account ; but the ordinary made no decree, 
 and the proceedings had no result. Stephen 
 I'ettus. jr., and Hannah Koswell also died be- 
 fore the institution of this suit; and their 
 representatives are parties to this bill, claim- 
 ing an account of the administration of the 
 testator's estate. Stephen I'ettus, sen., also 
 died, (in 1846.1 and Clawson, the defendant, 
 is the administrator of his estate; and re- 
 sists the claim to account on various grounds; 
 of which. tlu)se that are deemed material, 
 will be hereafter considered. There has been 
 a report upon the accounts from a special 
 referee, (the Connnissioner of the Court being: 
 the administrator of Stephen I'ettus. .senior. I, 
 Exceptions were taken to the report: and 
 from the Chancellor's decree upon the report 
 and exceptions, an appeal has been brought 
 before this Court. 
 
 I will not discuss the various grounds of 
 appeal seriatim; but will confine my obser- 
 vations to such of the questions which tlu'y 
 raise, as I deem proper for serious ct)nsidtra- 
 tion. 
 
 The main issue involved in the case, is-- 
 whether the parties who are seeking an ac- 
 count of the administration of the testator's 
 estate, are, under the circumstances of the 
 case, entitled to an account at all. The orig- 
 inal bill in the cause was tiled May 14. 1847, 
 by John I'ettus, Thomas Boswell, and his 
 infant daughter Mary V. Koswell, (a daugh- 
 ter of the testator's legatee, Hannah Kos- 
 well,) all residents of North Carolina, against 
 Wm. J. Clawson, the administrator of Stephen 
 I'ettus. senior. And at a subsequent day. 
 (not appearing to the Court,) a supplemental 
 bill was filed by J. C. Smith, as adminis- 
 trator of Hannah Koswell and Stephen I'et- 
 tus. junior. This makes the record complete, 
 as to the proper parties who should be before 
 the Court. 
 
 But it will be perceived, that from the date 
 at which the administration was committed 
 to the defendant's intestate, more than the 
 quarter of a century had passed away ; and 
 more than eighteen years had elapsed from 
 
 *101 
 the date of the last act of administra*tion, 
 when Stephen Pettus, senior, made his last 
 return to the ordinary, and when that of- 
 fictn-, on what purported to be a final settle- 
 ment, struck a balance on his accouuts, and 
 
 41
 
 *101 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 gave him a certificate, tliat tlie .sum of .$288.- 
 06 was due by him to his testator's estate. 
 
 I do not say, that this last accounting and 
 settlement before the ordinary was a decree. 
 I do not think it was. It was obviously ex 
 parte, and cannot have, and probably was 
 not intended to have, the force of a judgment. 
 But it was a transaction which purported to 
 be a final settlement of the estate. "Acts 
 done in a public office," as the Chancellor in 
 his decree has said, in an office proper for 
 such acts, and where they may of right be 
 done, and open at all times "for the informa- 
 tion of parties interested, must be taken no- 
 tice of by them."' And the doctrine is fully 
 sustained by the authority cited, (Payne v. 
 Harris, :i Strob. Eq. 42;) to which others 
 might be added. The Chancellor proceeds to 
 say, "if Stephen Pettus' return to the ordi- 
 nary of January, 1829, had purported more 
 clearly to be a full execution of the trust, the 
 claims of all the plaintiffs might have been 
 considered as barred by tlie statute of limita- 
 tions, except that of John Pettus, saved by a 
 day." In the opinion of this Court, the Chan- 
 cellor did not give sufficient force and signif- 
 icancy to the facts upon which tlie question 
 as to the statute of limitations will turn. I 
 regard those facts in a stronger light. They 
 speak an unequivocal language to the effect, 
 that the administrator liad wound up the es- 
 tate, and had fully executed the trust, with 
 the exception of the balance acknowledged to 
 be due. In Brockington v. Camlin, (4 Strob. 
 Eq. 190,) where the administrator iiad fully 
 administered the estate, with the exception 
 of some negroes, to whicli, in the presence of 
 the distributees, he asserted a personal and 
 independent claim, the assertion of tlie claim 
 was held to have given currency to the stat- 
 ute. Suppose that in this instance, the ad- 
 ministrator had 5.erved the parties in inter- 
 est witli a copy of his last account and re- 
 turn ; or that he had given tlieiu notice in 
 writing, or by parol, that he had fully ex- 
 ecuted his trust, with the exception of the 
 
 *102 
 
 *ba]ance acknowledged to be due, could it 
 be doubted, that the effect vvould have been, 
 to have divested him of his fiduciary char- 
 acter, except as to that balance, and to have 
 placed him, to use the quaint but expressive 
 language of some of the authorities, "at arm's 
 length," with the beneficiaries of the trust? 
 Well ; this, or a similar declaration, the ad- 
 ministrator did spread upon the records of 
 the ordinary's ofiice. And if there be any 
 reason or force in the decisions, that acts 
 done in a public office must be taken notice 
 of by the parties interested, the same result 
 must follow. 
 
 Independently of the statute of limitations, 
 it appears to me, that except as to the claim 
 of John Pettus, the demand for an account is, 
 under the circumstances, too stale and ivn- 
 tiiiuated to meet with favor in this Court. 
 
 42 
 
 It is against good policy to lend too ready 
 an ear to an ai)plication to rip up these 
 long standing settlements and accounts. The 
 I Court cannot proceed to render judgment, ex- 
 cept at the risk of doing great injustice. The 
 transactions under investigation are obscured 
 by the lapse of many years. TJie administra- 
 tor is dead. He died under the belief, found- 
 ed on what was undoubtedly a bona fide set- 
 tlement before the ordinary, that he owed 
 his testator's estate only .$288.96, with the 
 subsequently accruing interest. His case has 
 been defended by his own administrator, aid- 
 ed only by the evidence which the wreck of 
 eighteen years leaves at his command. Un- 
 der the.se circumstances his accounts have 
 been examined, and on June 17, 1851, the ref- 
 eree reports a balance due by the estate of 
 the administrator of J. D. O. K. Pettus of 
 $4,268.10. Tills is a most startling result, 
 and cannot but strongly impress one's mind, 
 with the danger of doing great injustice in 
 the.se investigations. The case itself is aptly 
 illustrative of both the benignity and wisdom 
 of that rule, which affords to persons called 
 upon for a settlement of stale and antiquated 
 demands, the protection of a legal oblivion. 
 It is the opinion of this Court, that the Chan- 
 cellor should have sustained the plea of the 
 statute of limitations, and dismissed the bill 
 against all the complainants, except John Pet- 
 tus. The case of John I'ettus stands upon a 
 
 *103 
 different footing, as to *this ground of de- 
 fence. He was an infant, and on account of 
 his residence without the limits of this State, 
 was entitled to five years after he came of 
 age to bring his suit. He filed his bill one 
 day before the removal of his disability ; 
 which was of course sufficient to save his 
 rights. The case mu.st go on as to him, and 
 he will be entitled to recover such an amount 
 as he would be entitled to recover if the 
 claims of his co-plaintiff's had not been con- 
 sidered as barred. 
 
 There is only one other point which it is 
 my purpose to discuss. The Chancellor, in 
 his decree, has disallowed the charge of in- 
 terest, except from Che filing of the bill. He 
 has conclusively shown, by the authorities 
 which he has cited, that the allowance of in- 
 terest is a matter within the discretion of the_ 
 Court. Equity allows interest upon demands, 
 as to which, interest is not recoverable at 
 law ; upon the principle, that it would be in- 
 equitable to withhold it ; and in cases of 
 trust, upon the maxim which prevails in this 
 Court that a trustee shall not be permitted 
 to make a profit for himself out of the trust 
 estate. This Court having imposed upon it- 
 self rules for the allowance of interest on the 
 ground that equity demands it, can refuse, 
 and has refused it, where in the judgment of 
 the Court, there are equitable circumstances 
 which forbid its allowance. The equity for 
 interest prevails, unless tliere be some stron- 
 ger countervailing ecpiity. The authorities
 
 MAYBIX V. KIRBY 
 
 nob 
 
 abundantly prove, that the allowance of in- 
 terest in this Court is only a {general rule; 
 and that there are exceptional cases. It is a 
 discretion helou^'in;: to the Court, however, 
 which, in my judjiuient. if I may he allowed 
 to use an expressive tautolojxy, should he 
 very discreetly exercised. 
 
 80 far from impufiiiing, 1 sustain the doc- 
 trine of the circuit decree in this respect con- 
 sidered as an abstract proposition. The 
 claims set up on behalf of the representatives 
 of Ilannaii lloswell. and Stephen I'ettus, have 
 been disposed of, and disailoweil. If the 
 claims on their part had not been considered 
 as barred, and it were necessary to state an 
 ac«-ount as to them, I am not prepared to say, 
 I hat it would not be proper, as the Chancel- 
 
 *104 
 lor decreed, to ^withhold the interest, except 
 from the time of (ilin.ij: the bill. In Smith v. 
 Hunt, (3 liich. E(i. 4(;.j.) gn'at laches on the 
 part of the complainants in the prosecution 
 of their demand for an account, until the in- 
 terest accouiit had swelled to a iu'reat and dis- 
 l)roportionate nias,'nivude, was held to be a 
 sufficient reason for withholding a lar^e por- 
 tion of the interest. In reference to those 
 parties, whose claims have been dismissed, 
 this enquiry wo\ild be speculative, and out- 
 .>ide of the record, liut it is very material 
 to emiuire, whether under any circumstances, 
 interest can be withheld from .lohn I'ettus, 
 who was an infant, and who hied his bill for 
 an account, within the Hve years allowed 
 him by the statute of limitations after the 
 removal of his disability. Laches is certain-- 
 ly not predicable of an infant before he at- 
 tains his majority; nor is it imputable to him 
 durin}: the iieriod, in which the statute aftei-- 
 wards allows him to brinu his suit. There is 
 no principle or precedent, so far as I can per- 
 ceive, which forbids an interest account to 
 be stated in favor of John I'ettus. In stat- 
 ing the accounts, interest must be allowed ac- 
 cording to the rules wbicli prt'vail in this 
 Court on that subject. 
 
 In regard to the other (luestions raised In 
 the grounds of appeal, it is sufficient to say, 
 that this Court concurs with the Chancellor, 
 and is satisfied with the circuit decree. 
 
 It is ordered and decreed, that the bills 
 be dismissed as to all the complainants in 
 the cause, with the exception of John I'ettus. 
 It is further ordered and decreed, that so 
 much of the circuit decree as disallows inter- 
 est in favor of .John I'ettus be reversed, and 
 that the referee, in re-stating the accounts, 
 as is herein ordered to be done, do charge 
 interest on the administration accounts of 
 Stephen Tettus, senior, according to the usu- 
 al practic*' of this Court. 
 
 It is further ordered and decreed, tliat the 
 report be referred bark to the special referee, 
 and Inat he re-state the accounts, and make 
 his report conformable with this decree, and 
 with the circuit decree so far as the latter is 
 
 not reversed or modittcd by this ai>peal de- 
 cree. 
 
 *105 
 ♦It is further ordered and decreed, that 
 in all resiiects, in which the circuit decree 
 is not reversed or moditied by this decree, 
 the said circuit decree be affirmed, and the 
 aippcjil dismissed. 
 
 .lOIIN.STON. IHNKIN and WAUI'LAW. 
 CC., concurretl. 
 Decree modified. 
 
 4 Rich. Eq. 105 
 iWILI.I.VM .MAVI'.IX V. .lolIX T. KIUr.Y. 
 Sl.MI'SdN. l'.(»r.(». Till-: SOITII CAUn- 
 : UNA .MA.\n'ACTrKIN<; COMrANY, anil 
 j II. AKNOM), Admr. 
 I (Columbia. Nov. aud lU-c. Tcrni. 1851.) 
 
 I I'lcilties C=>li'J.] 
 
 licpdsit of certificate of stock in an incor- 
 poiiittd Company, in consideration of a lialality 
 in< urrcd tor the depositor, hchl. to create a lien 
 in tMiiiity upon tlie stuck to tlic extent of tlie 
 
 1 liability; and siuli lien enforced a;;ainst a sub- 
 
 I se(iueut purchaser. 
 
 ! I Ed. Note.— For other cases, see I'ledues. 
 
 jCent. Di?. § 40; Dec. Dig. ®=>2-J.] 
 
 [.l»»K//l;»lf/^^s• C=»102.1 
 
 The assignee of a cho.se in action is not witli- 
 ' in the rule which |)rote(ts a purchaser for yahi- 
 alile consideration, without notice; the assignee 
 takes oidy such interest as the assignor has. and 
 is bound by all the etpnties binding on the lat- 
 ter. 
 
 IKd. Note.— Cited in Moffatt v. Hardin. 'Jli S. 
 C. 2t); Patterson v. Kabb, :{S S. C 147. 151, 
 17 S. E. 4(i.{. 1!) L. K. A. -SH ; Westbury v. 
 Simmons. 57 S. C. 481. :!5 S. E. 704. 
 
 For other cases, see Assiirnments, Cent. Dig. 
 § 17!S; Dec. Dig. ®=5l(i:i.] 
 
 [Assiynmcnts <@=3S5.] 
 
 Where the equities of persons, churning un- 
 der the original holder of a chose in action, are 
 etpud. the maxim, prior in tempore. i)otior in 
 jure, will apply: if the first assignee be guilty 
 of fraud, or of such gross neirligence in the as- 
 sertion of his right, as enahh's tlie assiunor to 
 practice a deceit on a second purchaser, his 
 etjuity will be postponed to that of the second 
 bona fide purchaser. 
 
 IE(1. Note.— Cited in Maxwell v. Foster, 07 
 S. C\ :J80, 45 S. E. 5tli7. 
 
 For other cases, see Assignments, Cent. Dig. 
 S 14!>; Dec. Dig. <S='!S5.J 
 
 [Sales (S=>--">5.| 
 
 A plea of p\n-chase for valuable considera- 
 tion, without notice, is no protection a^'ainst an 
 adverse claim of which the i)urchasei' miiiht 
 have had notice, by using due diligence in iu- 
 vestijiatini; the title. 
 
 lEd. Note.— For other cases, see Sales, Cent. 
 Dig. § Os:]; Dec. Dig. <©=>-_':}5.] 
 
 I This case is also cited in Hampton & R. K. & 
 I>und)er Co. v. Hank of Charleston. 48 S. 
 C. l.!4. '2ii S. E. -SS, without specific ap- 
 plication. I 
 
 Before Wardlaw, Cli.. at Spartanburg, 
 June, 1851. 
 
 Tlie decree of bis Honor the circuit Chan- 
 cellor, .states till' facts in the case, and is as 
 follows: 
 
 ,g=>For other cases see same topic aud KEY-NUMUliU lu all Key-Numbered Digests and Indexes 
 
 43
 
 *105 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 Wardlaw, Cli. The plaintiff, as surety for la note of $500 to Clevelan;!, wiiercin lie was; 
 
 one William Clarke, has paid certain sums of 
 money; and be seeks in this bill to be reim- 
 bursed out of shares held by Clarke in the 
 stock of the S. C. Manufacturing Company. 
 
 This Company was incoiiwrated by the 
 Legislature in 1826, for the manufacture of 
 iron, with the usual powers of corporate 
 bodies, and with the privilege of holding es- 
 
 *106 
 tate to the value, at first, *of $50,000, and 
 afterwards of $200,000, (8 Stat. 350, 353). 
 Of this Company, Kirby and Bobo were large 
 stockholders, and Clarke was a stockholder 
 to the extent of 265 shares, at $100 a share. 
 Clarke had been agent of this Company for 
 several years before 1842, when he became 
 agent of the Nesbitt Manufacturing Com- 
 pany, of which Elmore, Hampton and Nesbitt 
 were stockholders, but for the year mention- 
 ed, or longer, he continued his agency for 
 the former Company. i 
 
 Josiah Kilgore, administrator of Hugh 
 Bailey, obtained judgment at law against 
 Clarke for $6,738.30, and in the summer of 
 1843, was pressing the collection of this mon- 
 ey, but on September 10, 1843, he agreed, in 
 a letter to the sherift", to indulge Clarke, on 
 his payment of $2,000 within twenty days. 
 Kilgore at this time held sixty of Clarke's 
 shares in the S. C. Manufacturing Company, 
 as collateral security for his debt, although 
 the formal assignment of these shares in the 
 stock book of the Company was not made by 
 Clarke to Kilgore until February 16, 1S44. 
 
 To enable Clarke to raise the money neces- 
 sary to procure indulgence from Kilgore. the 
 defendant, Kirby, made a note for $2,000, 
 dated September 27, 1843, payable to Bobo 
 90 days after date, at the Commercial Bank 
 in Columbia, and Bobo endorsed the note, 
 took it to Columbia and delivered it to May- 
 bin, with a letter from Clarke, who was last 
 endorser. In this shape the note was first 
 offered to the Bank for discount, and the of- 
 fer declined unless a town endorser was 
 added. Maybiu then endorsed the note and 
 it was discounted at the Bank, and on Octo- 
 ber 5, 1843, Maybin received the proceeds 
 and sent $1,950.3114 by Caswell Bogan to the 
 sheriff at Spartanburg. The sheriff received 
 this sura October 7, and, the balance being 
 advanced by Clarke, on October 10, paid $2,- 
 000 to Kilgore on his fi. fa. This note, when 
 discounted, was marked "special," which, 
 according to the usage of the Bank, indicat- 
 ed that payment was expected at maturity, 
 without renewal. The note was protested for 
 non-payment, on December 29, 1843. 
 
 In contemplation of the making and en- 
 *107 
 dorsement of this note, *Clarke, on Septem- 
 ber 21, 184.3, assigned, in the stock book, 100 
 of his shares in the S. C. M. Co., to Kirby 
 and Bobo for their indemnification on this 
 note, and for the iudemnilicatiou of Bobo on 
 
 44 
 
 Clarke's surety. This latter note lias been 
 paid long ago. On the same day, Clarke as- 
 signed 100 shai'es for the use of the Com- 
 pany, in consideration of a deljt of $4,000 to 
 the Company. 
 
 On January 6, 1844, Clarke, in writing, 
 promised that, if Maybin would give him 
 the use of his name, on a note of .$2,000 to 
 be discounted in the Branch of the Bank 
 of the State of South Carolina, at Columbia, 
 and on the renewals of the same, he would 
 immediately deposit with him a certificate of 
 stock in the S. C. M. Co. for 265 shares, with 
 power of attorney to sell the same, if default 
 were made by Clarke in paying up said note 
 and renewals, and after satisfying such debt 
 to return the ovei-plus to Clarke. On the 
 same day, and on the same instruaput, El- 
 more, Hampton and Nesl)itt, promised iu 
 writing to guarantee to Maybin the payment, 
 by Clarke, of such note and renewals on the 
 taking of the security aforesaid. On Janu- 
 ary 9, 1844, a note for $2,000 was made by 
 Maybin, payable in 60 days to Clarke, at the 
 Branch Bank aforesaid and endorsed by 
 Clarke. Hampton and nilmore. On this note 
 was written in pencil, by one of the officers 
 of the Bank, "Nett proceeds, $1,979, W. May- 
 bin's check for this amount on 10th March, 
 $1,979." Maybin drew the $1,979 from the 
 Branch Bank, Jan. 10, 1844, and on the same 
 day paid to the Commercial Jt>ank $2,006.60, 
 in discharge of the Kirby note and interest 
 and protest, received that note and deposited 
 it in the Branch Bank, saying it would be an 
 additional security. On the 26th of January, 
 1844, Clarke wrote a letter to Maybin. say- 
 ing: "i send you the stock named, of which 
 I hope to have arranged in time to give satis- 
 faction. I will see you in a short time ;" 
 and enclosing a certificate, under the seal 
 of the Company, signed by Ben. Wofford, 
 President, and Simpson Bobo, Secretary, dat- 
 ed in 1843, without further specification of 
 time, that William Clarke is entitled to 265 
 shares iu the S. C. M. Co., on each of which 
 
 *108 
 
 $100 *have been paid, and that "this cer- 
 tificate is transferable in person or by at- 
 torney, at the Secretary's office, on the sur- 
 render hereof." 
 
 On April 19, 1844, Kilgore, in presence of 
 Clarke and Kirby, assigned to Kirby his fi. 
 fa. against Clarke, upon which the balance 
 then due was $">,982, taking Kirby's two notes 
 for $982 and $3,000, and delivering to him the 
 60 shares of Clarke's stock, wliich he held 
 as collateral security, although he took 
 Clarke's receipt for the.se shares. On June 
 19, 1844, Clarke assigned to Kirby, in the 
 books of the Company, "subject to all prior 
 liens," his 265 shares as security for the 
 Kilgore debt. On April 18, 1847, the S. C. M. 
 Co. gave their note, since paid, to Kilgore, iu 
 place of Kirby's note for $3,000.
 
 MAYinX V. KIRBY 
 
 *110 
 
 In Decomlter, 1S44, Gen. B. B. Foster heunl 
 tilt' following conversation between M;\.vbin 
 and Kirby, in Cohiniiiin. viz: M. Wl\ere is 
 Clarke? K. At borne. M. He must be the 
 most careless man in the world. I liave 
 taken up a note for bim in tlu' r.ank. K. Is 
 it tbe note for vvbieb Hobo and my.self were 
 sureties? M. It Is. K. (Jive me tbe note. 
 M. No, I have a settlement to make with 
 Clarke, and I wi.sb to see bim Ix'fore I j^ive 
 up tbe note. 
 
 On October 10, l.S4n, Clarke, recitinj,', tbat 
 as af^ent of tbe S. C. M. Co., be bad used the 
 means of that Company for tbe lienetit of 
 tbe Xe.sbitt Manufactnrin;,' Coniiiany, to tbe 
 amount of .$10,147.T."», with interest from Sep- 
 tember 9, 1S44, and tbat tbe former ('om- 
 pany had agreed to prosecute tliis claim 
 against tbe latter Conijiany, assi^'ned to tbe 
 S. C. M. Co., in tbe stock Iiook. ids 265 .shares 
 in tbe Company, for tbe security of tbe sabl 
 debt, or for tbe expen.ses of liti^ration, as 
 the case mijibt be. 
 
 On January 1, 1S47. Clarke assigned to the 
 Company, on its books, .SO of bis shares ab- 
 solutely. 
 
 Oil .January 2. 1847, about .$1,075 remained 
 due upon tbe note in tbe Branch liank, and 
 the renewal note for tbat sum bad been pro- 
 tested. Of tbe payments made for the reduc- 
 tion of tbe note from the original principal' 
 of .$2,000 and tbe interest accruing, Maybin 
 admitted tbat Clarke had paid .$."!2.5 on May 
 
 *109 
 lo, 1844, *$10 in Septemher afterwards, and 
 at other times .$G0, but claimed that all other 
 payments had been made by himself, and the 
 books of the Bank showed tbat the payments 
 had been made by bim. and there was no evi- 
 dence, beyond his admissions, that Clarke 
 bad furnished him with money. I mention 
 here, without understaniling the application 
 of the evidence, tbat plaintiff produced a 
 note for .$40.17, dated January li), 1843, by 
 Clarke. I'resident of tiie Xesbitt Manufactur- 
 ing Company, to Stacker, and the uote of 
 Clarke to Maybin, dated January 1!). 1840, 
 for .$11.'>.66. Stacker was tbe agent in Colum- 
 bia of a stage contractor, and Maybin was a 
 tavern keeper there, ami it .seemed to be in- 
 ferred that these notes were given for Clarke's 
 jstage and tavern expenses in attending to 
 bis notes in Bank. 
 
 On this January 2, 1847, In a conversation 
 between Elmon- and Clarke, Elmore called 
 Clarke's attention to the note in the Branch 
 15a nk, suggested the injury to Maybin's cred- 
 it from tbe non-pSiynient of tbe not*' and the 
 projjriety of its re-instatement in tiie Bank. 
 Clarke acknowledged Maybin's kindness in 
 making advance's for bim on the renewals 
 aiRl his oliligation to indenniify .Maybin, and 
 be, Clarke, drew a note to .Mayi)in, payable 
 at the Branch Bank, which was left in blank, 
 as neither Klniore nor Clarke knew tbe 
 amount that bad been paid by Maybin. and he 
 drew a power of attorney to Maybin. author- 
 
 izing Maybin to reinstate and renew tbe said 
 note as often as might be necessary and 
 pledging his said stock anew for tbe pre- 
 vious advances of Maybin, and for any he 
 might make sub.setpiently. Both Clarke and 
 Klmore at this time sui)posed tbat tbe orig- 
 inal note of January 9, 1S44, had been made 
 by Clarke and endorsed by Maybin, and so 
 described it in tbe power of attorney, and 
 from this nnsdescrii)tion the paper was un- 
 suitable and unused. 
 
 On January l."». 1S47, Clarke, in considera- 
 tion of bis indebtedness to the S. C. M. Co. 
 in the sum of .$17.7.j.''..20, sold and transfer- 
 red to said Company his -{>o shares in tbe 
 stock of said Compan.v. 19 mules. 4 horses, 
 stock of cows and calves, all his wagons, 
 carts and harne.ss, all his corn, fodder, oats 
 
 *110 
 and bay, all ♦his wooil, coal and ore on band, 
 and all bis tools as carpenter and farmer, 
 and for tbe furnace or for coaling or raising 
 ore or cutting wood, conditioned tbat uidess 
 he paid his debt within two months, tbe agent 
 of the company might .sell the same, after 
 two months' public notice of the time and 
 place of sale. This mortgage was executed 
 by Clarke, during his last illness, in the 
 presence of one J. G. Clowdy. 
 
 Clarke died January 17. 1847, and admin- 
 istration of his estate was granted February 
 22, 1847, to l{ol)ert Arnold who is a defend- 
 ant in this suit. His estate is utterly in- 
 solvent. - 
 
 On July 23, 1847, Maybin brought suits at 
 law as second endorser of tbe note in tbe 
 Conmiercial Bank, against Kirby as maker 
 and Bobo as Hrst endorser of said note. 
 Tbe case against Kirby was tried on the cir- 
 cuit, at March term, 1840, and resulted in 
 a verdict for defendant, (which was conbrm- 
 ed by tbe Court of Appeals at December term, 
 1840,) on the ground tbat tbe note in tbe 
 Commercial Bank was in fact I»a1d by Clarke, 
 for whose acconuuoilation it was discounted. 
 The e<iuities of tbe plaintift'. growing dut of 
 his iiayment.s-on the note in the Branch Bank, 
 were not concluded. The case against I'.i>b(> 
 has not lieen tried, l)ut on tbe motion of the 
 defendant. I put the plaintiff to his election 
 as to I'lobo, to proceed at law or in this fo- 
 rum: be elected to proceed in eipiit.v. I also 
 nienii.iii. to avoid any appearance of sup- 
 pression, that I overruled the exception-: 
 Hied by the plaintiff to tbe answers, and that 
 I rejected the deitositions of Colonel Klmore. 
 taken in the cases at law. but not read there. 
 
 On December 0. 1847, William Walker, as 
 agent of tbe S. C. M. Co., under tbe mortgage 
 of January 15, 1847, sold at public outcry 
 after two months' public notice, 185 shares 
 in the st(H-k of said Comi)any, being the whole 
 of Clarke's shares, after deducting tbe 80 
 assigned to tbe Company on January 1. 1S47. 
 and they were bought by the Company at 
 .'{5 dollars a share, making the aggregate sum 
 of .$0,475. At this sale it was announced by 
 
 45
 
 nio 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 the agent that the Company would assume ' 
 the risk of paying or discharging all preced- 
 ent liens,- and tliat the purchaser should 
 
 *111 
 *have an unincumhered title. This announce- 
 ment, according to the answer of Walker, 
 Agent and President of the Company, was 
 made in reference to any claim that might 
 be set up under the mortgage to Kirby and 
 Bobo, "as the plaintitt', since Clarke's death, 
 had intimated that he intended to make the 
 Company pay." 
 
 A. W. Thomson, from the beginning a 
 stockholder in this Company, testified that 
 Maybin, in his presence, got from the Branch 
 Bank the orignal notes to the Commercial 
 Bank, and the Branch Bank, and the papers 
 connected therewith, and that before the 
 suits at law were brought, he, the witness, 
 offered on the part of Maybin to Bobo, who 
 was Secretary and Solicitor of the Company, 
 to surrender the scrip for Clarke's shares and 
 all liens to the Company, if Maybin's claim 
 should be paid ; but he mentioned nothing of 
 Clarke's payments to the Branch Bank, nor 
 of the note to the Branch Bank, regarding 
 the note in the Commercial Bank, as the 
 measure of ^lay Inn's damages. Bobo and 
 Walker, in their answers do not admit, but 
 deny notice of ]Mayl)in's possession of this 
 scrip, before the suits at law or the sale in 
 December, 1847, and if the fact be important, 
 it is not proved according to the rules of evi- 
 dence ; in my view the fact is luiimportant. 
 It is admitted that before this bill was filed 
 the Company had full notice of Maybin's 
 claim. 
 
 At a meeting of the stockholders of the S. 
 C. M. Company, held January 27, 1837, a bye- 
 law was adopted, "that all transfers of stock 
 shall hereafter appear on the books of the 
 Secretary by the certiHcate of the pei-son sell- 
 ing." Again at the meeting in January, 1839, 
 these bye-laws were adopted, "that the trans- 
 fer of stock shall be made on the books as 
 now required, and that when any stockholder 
 sells less than the amount of his whole shares 
 he shall produce his certificate to the Secre- 
 tary, who shall indoi-se thereon the number 
 of shares sold, and to whom sold; where- 
 upon the new stockholder shall be entitled to 
 his certificate; that when a stockholder sells 
 out his whole stock, he shall transfer in writ- 
 ing his certificate of stock to the purchaser ; 
 whereupon the new purchaser may demand 
 his certificate ; that so far as the Company 
 
 *112 
 
 *and its interests are concerned, no transfer 
 of stock shall be considered as perfect until 
 the foregoing regulations for transfers, are 
 complied with." 
 
 In this state of facts this bill was filed by 
 Maybin on April IS, 1850. In the prayer of 
 the bill and in the argument of his counsel, 
 his claim to be reimbur.sed for the monies he 
 has paid on account of Clarke is maintained 
 16 
 
 in various forms and on different grounds of 
 equity. 
 
 First, it is said the defendants are pei-son- 
 ally liable to him. To this it is well an- 
 swered, that Clarke's estate, represented by 
 defendant Arnold, is utterly insolvent; that 
 there is no privity of contract between the 
 plaintiff and the S. C. M. Co., and that the 
 claim liy contract against Kirby and Bobo, if 
 not determined by the Court of Law, is bar- 
 red by the plea of the statute of limitations, 
 of which these defendants have availed them- 
 selves. 
 
 Again: It is strongly urged that Maybin's 
 note in the Branch Bank was merely a sub- 
 stituti<ni for the note of Kirby endorsed by 
 Bobo and discounted in the Commercial 
 Bank, and that the latter being negotiated for 
 the purpose of paying a portion of Kilgore's 
 execution, and the proceeds being so actually 
 used, it should represent so much of this ex- 
 ecution as it paid, with all its collateral se- 
 curities ; consequently, that the plaintiff, by 
 subrogation or substitution is entitled to the 
 benefit of the 60 shares in the stock of the 
 S. C. M. Co., assigned by Clarke to Kilgore 
 as collateral security, and to SO of the 100 
 shares assigned to Kirby and Bobo, as col- 
 lateral .security for the note made and en- 
 dorsed by them, granting that 20 of these 
 latter shares were assigned to Bol)o individ- 
 ually for the Cleveland debt. It is not ray 
 purpose to discuss the doubtful doctrines thus 
 presented, inasmuch as after the decision at 
 law in Maybin v. Kirby, comity requires me 
 to determine that there is no foundation in 
 fact for this superstructure of principles. 
 If the Kirby note were discounted for 
 Clarke's acconnnodation and paid by the mon- 
 ey of him as endorser, this contract with all 
 its incidents would seem to be extinguished, 
 
 *113 
 and *the note in the Branch Bank is a new 
 and independent arrangement. 
 
 Finally, the plaintiff rested his claim to 
 be reimbursed for his payments on the note 
 in the Branch Bank upon the deposit with 
 hiiu by Clarke, in January, 1S44, of his scrip 
 for shares in the S. C. M. Co. 
 
 This scrip was the title of Clarke to his 
 shares of the capital of said Company; and 
 the delivery of it to Maybin, in consideration 
 of the liability he had incurred for the own- 
 er, creates a lien in equity upon these shares, 
 to the extent of his liability. Ever since 
 Russel V. Russel, (1 Bro. C. C. 269.) it has 
 been recognized, that a deposit of title deed, 
 upon an advance of money constitutes an 
 equitable mortgage even of lands notwith- 
 standing the provisions of the statute of 
 frauds. See Welsh v. Usher (2 Hill Eq. 170 
 [29 Am. Dec. 63]) where at the. time of the 
 sale of a ship an indorsement was made on 
 her Register that the vessel should not be 
 sold until the notes given for the purchase 
 money were paid; and the Register was left 
 with the vendor. This was held to be an
 
 MAYniNT V KIUnY 
 
 *11G 
 
 equitable mortjiage of the ship to tlie vendor, ] 
 valid af^ainst the claims of sulisctiueut at- | 
 tachiiig creditors. Similar liens have been j 
 recognized in Head v. Simons, (U I>es. ij't'2:) , 
 Menude v. Dclaire. (Id. ")«>:>:) Massey v. Mc- J 
 Ilwain. (:.' Hill. Kq. 4-_'l:) Dow v. Ker, (Sp. | 
 Eq. 417.) ' 
 
 Such a lien would not prevail against a 
 subsequent purchaser, for valualde considera- 
 tion without notice. I'.nt the defendants 
 cannot Itring them.selves within the protec- 
 tion of this plea. Itecause the.v have not fonn- 
 all.v pleaded the plea, nor actuall.v paid any 
 pait of the purchase money, nor a<quired the 
 legal title. (Williams v. Hollingsworth, 1 
 Strob. K<i. 11.". [47 Am. Dec. r»-J7|: Md'.ee v. 
 I.oftis *: IIanq)ton, 1 Strob. Va{. !>.-.; ("rocker 
 V. Dillard & Kir1>y. Sp. Va\. 27: Shultz v. 
 Carter. Id. 541.'; Hush v. Hush. :'. Strob. Eq. 
 i:;5 [51 Am. Dec. (Jl'A-) The purcliase of a 
 chose in action — and such I consider to be 
 the character of the contract made with tlie 
 S. C. M. Co. in December. 1.S47— is not with- 
 in the rule which protects purchasers for a 
 valuable consideration ; and the vendee takes 
 
 *114 
 only such in*terest as the assignor has in 
 the subject, and he will be bound by all the 
 eipiities liinding on the latter. Where the 
 eipiities of persons, claiming under the origi- 
 nal holder of a chose in action, are equal, 
 the maxim prior in tempore, potior in jure, 
 will apply. If the first piu-chaser or assignee 
 be guilty of fraud, or what is etiuivalent, of 
 such gross negligence in the assertion of his 
 right, as enables the assign<u- to practice a 
 deceit on a second purchaser, his equity will 
 i»e postponed to that of the second bona fide 
 pnrchaser. CJd White & Tudor's I-. C. pt. 
 •_', 2:U.) Thus, where a party suffers stock, 
 or other choses in action belonging to him. 
 to stand in the name of another, perhaps 
 his ecpiity may be postponed to that of an 
 innocent purchaser from the latter. It was 
 .•<o decided in Hedfearn v. Ferrier. (1 Dow. 
 r,().) under the S<'otch law, altlmugli Sir 
 Samuel Komilly treated the (loctriiie as un- 
 known to the English law. 
 
 It was urged in this case, on the part of 
 the S. C. M. Co., that the plaiiitilT by neglect- 
 ing to give notice to the Company of his 
 possession of Clarke's scrip until they had 
 pnrchased, and by neglecting to conqtly with 
 the bye-laws of the Company as to trans- 
 fers of stock had forfeited his prior eqnity. 
 qMiere would have Iteen nuich force in this 
 argument as to notice if the plaintiff had 
 allowed Clarke to retain the scrip, which 
 was the evidence of title, and thus hold him- 
 self out as unincumbered owner: bnt in fact 
 tlie plaintiff kept the scrip, and produced it 
 at the trial. Tin* argument would have had 
 some weight if Clarke had practiced upon 
 the credulity of the Conu)any. by pretend- 
 ing, at any time, that his scrip was lost or 
 mislaid; but there is no evidence tliat in 
 any of the transactions between Clarke and 
 
 tlie Comiiany, any inquiry or representation 
 was made as to the scrip. If the Couqiany, 
 in taking transfers from Clarke, had pursued 
 the terms of their bye-laws, and of their 
 certificates of sto<k, l>y re<iuiring the produc- 
 tion of Clarke's certificate, they might have 
 ascertained the plaintiff's mortgage. A plea 
 of i)urchase for valuaitle consitlerati<m, with- 
 out notice, is no protection against an ad- 
 verse claim of which the purchaser might 
 have had notice, by using due diligence in 
 
 ♦115 
 ♦investigating the title. (Jackson v. Rowe, 2 
 Sim. and Stn. 47'_'. 1 C. E. C. C. 550; Crocker 
 v. Dillard. Sp. E(i. Ii7— Hoyce v. Coster's 
 Ex'rs, MSS. Charleston. l.s,50 [4 Strob. Eii. 
 25].) Again: Thom.son, one of the stock- 
 holders of the Company, had explicit notice 
 of plaintiff's mortgage; and it is manifest 
 from the answer of the I'resident of the 
 Company, that the Company, bef(U-e the sale, 
 knew the plaintiff's intention to make the 
 Company pay in some mode or other. 
 
 It is not clear that the bye-laws of the 
 Conq)any, concerning transfers of stock, ex- 
 tend beyond the case of absolute sales; but it 
 is unnecessary to determine any thing on this 
 point— for if they include conditional sales, 
 as mortgages, the Company has violated 
 them, at lea.st as much as the plaintiff, in 
 negleW^ing to have Clarke's certificate pro- 
 duced and assigned. It does not appear that 
 the sale of I)ecend)er, 1S47, has l)een entered 
 in the biioks of the Company. lUit on what 
 s(mnd principle can it be maintained, that 
 the private regulations of a corporate Ixxly, 
 bind other persons than stockholders, who 
 have no notice of such regulationsV 
 
 I conclude that the plaintiff and the Com- 
 pany have both merely etpiities as to Clarke's 
 stock, and that there is no circumstance to 
 rebut the prevalence of the plaintiff's e<piity. 
 according to its date. 
 
 In this view, and regarding the liens of 
 Kilgore and Kirby and H.olio as extinguished 
 —the plaintift"s mortgage is anterior to all 
 other liens or assignments, except those to 
 the Company of 1(K) shares, on September IM. 
 ISV.i. As to this last, no proof was offered 
 Iteyond the execution of the assignment: but 
 its validity may \^e conceded, as the remain- 
 ing shares are adequate to satisfy, many 
 times over, the ]ilaintilT's claim. 
 
 As to the amount for which plaint iff is 
 entitled ti> reimbursement, there nmst be a 
 reference to the wnunissioner. A mortgagee 
 coming into etjuity for foreclosure, can de- 
 nnintl only the deltt secured by the mortgage. 
 (Walling V. Aiken. McMnll. E.i. 1.) The 
 plaintiff here must be limited to his payments 
 on the note in the Hranch Bank. It was 
 
 ♦116 
 said in the argument, that on the *renewal 
 note in the Hank, simiething still remained 
 uiqtaid. Hut as the plaintiff produced the 
 original note, I conclude that the renewal 
 note of Maybiu was accei>ted by the I'.ank. in 
 
 47
 
 416 
 
 4 RICHARDSON'S EQUITY KKPORTS 
 
 satisfaction of the original liaJiility, and tliat 
 the plaintiff is entitled to reimbursement for 
 the whole of the original sum, with interest 
 and legal expenses, except such sums as by 
 his admissions, or other proof, have been 
 paid by Clarke, or other persons for him. 
 
 It is ordered and decreed, that it be re- 
 ferred to the commissioner of this Court, to 
 inquire and report as to the sums paid by 
 the plaintiff on the note to the Branch Bank, 
 of January 9, 1844, and the renewals there- 
 of; and that if the South Carolina :\Ianu- 
 facturing Company do not pay to the plain- 
 tiff the amount of such sums, with interest, 
 when ascertained, the commissioner of this 
 Court proceed to sell so many of the shares 
 held by said William Clarke, in the stock 
 of said Company, not exceeding 105 shares, 
 as will satisfy the amount due to the i)lain- 
 tiff. It is also ordered, that the said S. C. 
 M. Company pay all the costs of this suit. 
 
 The South Carolina Manufacturing Com- 
 pany appealed, and moved this Court to re- 
 verse the circuit decision, on the grounds: 
 
 1. Because the deposit of the scrip with 
 the complainant created no lieu upon the 
 stock of Clarke. 
 
 2. Because the defendants had the first 
 and only legal lien upon the stock of William 
 Clarke; and having sold the stock under 
 their lien, and being the purchasers thereof 
 without notice of the complainant's claim, 
 they ought, in .justice and equity, to hold it. 
 
 3. Because, if the complainant ever had 
 any just claim upon the stock, he forfeited 
 it by neglecting to give notice of his claim 
 in a reasonable time. 
 
 4. Because the decision was against law 
 and equity, and the usages and practice of 
 this Court. 
 
 Bobo, for appellants. 
 Thomson, contra. 
 
 *117 
 
 *PER CURIAM. This Court concurs in the 
 decree of the Chancellor ; and it is hereby 
 affirmed and the appeal dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN and 
 WARDLAW, CO., concurring. 
 Appeal dismissed. 
 
 4 Rich. Eq. 117 
 
 A. McMULLEN et al. v. .JAMES CATHCART 
 
 et al. 
 
 (Columbia. Nov. and Dec. Term, 1851.) 
 
 [Equity <S=»375.] 
 
 It would be ucplete with inconvenience to 
 sanction a practice of hearing a cause piece- 
 meal, or by detached parts. It is the duty of 
 the plaintiff to be fully prepared at the hearing; 
 and if from the death of a party and the want 
 of time to bring new parties before the Court, 
 
 the cause cannot be fully heard, leave will be 
 given to postpone. 
 
 [Ed. Note. — For other cases, see Eiputy, Cent. 
 Dig. §^ 785, 786; Dec. Dig. <S='375.] 
 
 [Execution (S=>348.] 
 
 A having an execution against B's testator, 
 B bori'owed money, giving A as liis surety, and 
 l)ai(l the money to A on the execution : B died 
 insolvent, and A, as his surety, was compelled 
 to pay the mone.v: — Held, that the execution of 
 A against the testator was satisfied to the 
 amount of the money borrowed by B and paid 
 to A. 
 
 [Ed. Note. — For other cases, see Execution, 
 Cent. Dig. § 10G4 ; Dec. Dig. (S=j348.] 
 
 Before Dargan, Ch., at Chester, .Tul.v, 1850. 
 
 Dargan, Ch. Hugh McMullen, late of 
 Chester District, died in December, 1841, 
 testate. He was seized and possessed of a 
 good real and personal estate at the time of 
 his death. By his will, he directe<l tliat his 
 estate should be kept together and euq)loyed 
 in agricultural operations, to be conducted by 
 his executors until a sufficient fund was rais- 
 ed for the payment of his debts. In aid of 
 the fund thus to be raised for the payment of 
 debts, his executors were authorized to sell 
 certain lands of the testator in Lancaster 
 dislrict, and if both of these sources were in- 
 sufficient to raise the adequate amount, the 
 executors were authorized to sell any portion 
 i of the personal estate. The testator, after 
 the payment of debts, gave his large and 
 valuable plantation on the Catawba river, 
 on which he dwelt, and the whole of his per- 
 sonal estate, consisting of 26 negroes, stock, 
 &c., to his two sons, Joseph J. McMuUeu and 
 James C. McMullen, for life, and at their 
 
 *118 
 
 deaths *respectively, to such lawful issue of 
 their bodies, as may be living at their death ; 
 with a power to the said Joseph and James 
 C. ]\IcMullen, to sell the said estate, and to re- 
 invest the proceeds of the sale, on the same 
 conditions and limitations. 
 
 James Cathcart and Caleb Clark, sen., 
 were nominated executors of the will. They 
 declined the trust, and administration, with 
 the will annexed, was granted to Joseph J. 
 McMullen — James Cathcart, Robert Cathcart, 
 Caleb Clark, and the complainant, James C. 
 McMullen, being the sureties on his adminis- 
 tration bond. Joseph J. Mc^NIullen having 
 thus qualified, assumed upon himself the exe- 
 cution of the will, and continued to act in the 
 character of administrator, with the will an- 
 nexed, from the death of testator, in the ear- 
 ly part of the year 1842, until his own 
 death, which occurred on the 5th of October, 
 1845. 
 
 Joseph J. MclNIuUen had a sale of some of 
 the personal property, on the 15th of Febru- 
 ary, 1842, and hired out the negroes, and 
 rented the land for that year and for 1843. 
 His estate is also to account for the rent of 
 land and hire of negroes, for the years 1844 
 and 1845, and for any choses in action or 
 
 48 
 
 <S=^For other cases see same toijic and KEY-NUMBER iu all Key-Numbered Digests and Indexes
 
 McMULLEN v. CATHCART 
 
 *121 
 
 ns:«iets which may have come into liis pos- 
 session. 
 
 On the first day of Dt'cemher, lS4o, the 
 said Joseph J. McMulleii (•ft\'ic<l the Catawha 
 phmtation. consisting of alumt IL'OO acres, at 
 public sak>, and l)ecame hini.self the purchas- 
 er tliereof. at ^U.'.)0 per acre, he lieini: at that 
 price tlie hifrliest lii(hler. This plantation he 
 claimed, cultivated, and used as his own. to 
 the day of his death. He divid<>d the negroes, 
 deliverinj; about one half to his brother and 
 co-lefratee, James C. McMullen, one of the 
 complainants. Hut whether this was intend- 
 ed as a final or provisional partition of the 
 negroes, does nfit appear. 
 
 On the oth of October. lS4r(. h(> died inti>s- 
 tate and insolvent, Univini: his wife, Mrs. 
 Jemima Mc.Mullen. and two children, Alex- 
 ander and Lucy McMullen, wlio are infants, 
 and complainants in this bill. No application 
 for h^tt(>rs of administration ui)on liis estate 
 having been made. James Withei-siioon, ordi- 
 nary Lancaster district, where the intestate 
 
 *119 
 resided, has taken the poss('s*sion and man- 
 agement of the estate, as a derelict estate, 
 according to the Act of Assembly, in such 
 case made and i»rovided. 
 
 After '.he death of Joseph J. McMullen. in 
 1845, Caleb Clark and James Cathcart. on .*}d 
 November, 1S45, obtained letters of adminis- 
 tration of the estate of Hugh McMullen, de 
 bonis non, and with the will annexed, and 
 assumed upon themselves the execution of 
 that trust. 
 
 The next event was the levy and sale by 
 the sheriff of Chester district of the Cataw!>a 
 plantation, and the negroes of the estate 
 that had remained in possessicm of J. J. Mc- 
 Mullen, being eleven in number. Tlie sales 
 were made to satisfy executions in force 
 against the estate of the testator. A very 
 large proportion of the indebtedness, to satis- 
 fy wliich the sales were made, was due to 
 Caleb Clark himself, on an outstandng and 
 old execution that had existed against the 
 testator for years before his death. This was 
 the senior execution. It had. before the sale, 
 been assigned to the Bank for .$4,r)00, with a 
 guaranty ity Clark to the Baid< for its ulti- 
 mate payment. The amount due to the Rank 
 was not eipial to tlie balance remaining due 
 upon the execution. This balance belonged to 
 Clark. After the sale, Clark and James 
 Cathcart paid to the Bank the amount of its 
 claim, and obtained a discharge. There were, 
 at the time of the sale, other executions In 
 the sheriff's office, namely, ouo in favor of 
 •Robert Cathcart, one in favor of John K(>iuie- 
 dy, one in favor of James K. Ma.ssey, one in 
 favor of Wm. Dunlap, and one in favor of 
 J. N. Smith. This last had been assigned to 
 C. Clark, and belonged to him at the time of 
 the sale. 
 
 William A. Rosborougb, a former sli(>riff, 
 testified, that when Clark lodged the exeuu- 
 tion in the case of C. Clark v. Hugh McMul- 
 
 4 Rich. Eq.— 4 
 
 len. in the sheriff's office, he informed him 
 that there were several credits to go (m it. 
 lie said he did not recollect the amounts, but 
 he had a memorandum of them at home. 
 The witness did not recollect whether this 
 conversation occurred while he was sheriff 
 hini.self, ()r while he was acting as the deputy 
 of his predecessor. R C Cabeen. It was aft- 
 er the death of II. McMullen. 
 *120 
 
 ♦On the 5th of January, 1^40. the Catawba 
 plantation, containing about 1200 acres, and 
 the negroes aforesaid, were sold by the sher- 
 iff to satisfy the executions aforesaid, then 
 remaining in his olfice. On the day of sale, 
 a claim was publicly set up to the land, or a 
 part of it, in b«'balf of the gi'and-children of 
 Mrs. Charlotte McMullen. wife of the testa- 
 tor, Hugh McMullen. This claim was inter- 
 po.sed on the part of the children of her 
 daughters. Mrs. Woodward and Mrs. Clark, 
 both deceased. It seems that a portion of 
 the Catawba plantation, known as the Leon- 
 ard tract, containing about 200 acres, was the 
 inheritance or real estate of Mrs. C. McMul- 
 h'U. She died in the life-time of her said 
 husband. On her death. Hugh ^IcMullen be- 
 came seized of one-third, and James ('. Mc- 
 Mullen, Joseph J. Mc.MulhMi. INIrs. Woodward 
 and Mrs. Clark, (or their children rei)resent- 
 ing them,) became entitled each to one-fourth 
 of two-thirds. James C. and Jos. McMullen. 
 had, by a deed duly executed, conveyed all 
 their share or interest in their mother's real 
 estate, to their father, Hugh .McMullen, in 
 his life time. So that at the time of tbe sale, 
 the only real claim outstanding against the 
 title of the testator to the whole of the Ca- 
 tawba plantation, was that on the part ftf the 
 Woodwards and Clarks to one-third of the 
 two hundred acres, known as tlie Leonard 
 tract. 
 
 These adverse claims were made to assume 
 a formidable and exaggerated asiiect. The 
 sale of the whole plantation was forbid by 
 a written notice .served on the sheriff. Neith- 
 er the character nor extent of the adverse 
 claims was explained. It was not shown 
 how the adverse claimants derived tlieir ti- 
 tle. It is charged in the bill, and admitfed 
 by C. Clark, that he was fully acqinunted 
 with the nature and extent of these adverse 
 claims. 
 
 D. G. Stinson, testified, that he was present 
 at a trial in the Court of Common I'leas for 
 Lancaster, when Caleb Clark produced a 
 deed of assignment by James C. and J. J. Mc- 
 Mullen, to their father, of all their right in 
 their mother's part of the Ix>onard tract of 
 land. Yet Clark made no explanations as to 
 the nature and extent of the outstanding and 
 
 ♦121 
 adverse claims. He was asked *to consent 
 that the sale should be postponed, in order 
 that the adverse claims niiglit be examined 
 and ascertained. This he refused, and insist- 
 ed that the sale should go ou. His execu- 
 
 48
 
 •121 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 tion, the oldest in the office, was open for the i 
 full amount clue upon its face, according to 
 the original confession, though there were 
 iai'ge credits that should have been endorsed 
 upon it. At the sale, there was no explana- 
 tion made as to the actual amount due upon 
 the execution. It was originally for a large 
 sum. It had been drawing interest for a 
 great many years, (from 27th February, 
 1822,) and the amount apparently due was 
 very large ; not less, in fact, than $9,000. 
 All these circumstances tended in a very con- 
 siderable degree to damp and injure the sale. 
 They had such an effect upon the sheriff, 
 (James Pagan,) that he thought it best to of- 
 fer only the right and interest of Hugh M'c- 
 Mullen in the laud. The land was thus of- 
 fered—a mode of selling which had a still 
 further tendency to prejudice the title in the 
 estimation of bystanders and bidders, and to 
 cool the ardor of comiietition. Under tliese 
 circumstances, C. Clark became the purchaser 
 of tlie Catawba plantation for the sum of 
 $3,700, took sheriff's titles, and has been in 
 the possession and use from tliat time to 
 the day of his death : and his heirs and rep- 
 resentatives, since his death, to the present 
 time, have continued to use and cultivate 
 the said plantation for the benefit of his es- 
 tate. This is a valuable property, and I am 
 satisfied from the evidence, was worth, at 
 the time of the sale, $10 per acre, or .$12,000. 
 
 It is impossible that this sale should stand. 
 The property was worth more than three 
 times the amount it brought at the sale. It 
 was an unconscionable speculation by the ad- 
 ministrator, against the estate he represent- 
 ed. If the sale had been fair, under tlie Act 
 of 1839 C. Clark would have been entitled 
 to hold the property, and the title would 
 have vested in him, on the condition of his 
 being charged with and paying the actual 
 value at the time of the sale. But I do not 
 think that tne purchase was fairly made. 
 And this is shown by the circumstances which 
 I have narrated. I am satisfied, if the ad- 
 ministrator, C. Clark, had performed liis 
 
 *122 
 *duty on that day, in stating the actual 
 amount due to himself, and in clearing his 
 testator's title of the suspicions and doubts 
 that were cast upon it. the land would have 
 sold for a much larger price. The transac- 
 tion wears, in my judgment, the appearance 
 of finesse, and there was a concealment of 
 circumstances on the part of the administra- 
 tor, which prejudiced the estate, and secured 
 to him the benefits of a gi-eat bargain. 
 
 This [leing my conclusion, the sale must be 
 .set aside, and the sheriff's conveyance deliv- 
 ered up to be cancelled. And it is so order- 
 ed and decreed. 
 
 It appears from the answer of C. Clark 
 and James Cathcart, that there was another 
 small tract of land of testator's, in Chester 
 district, containing 40 acres, which was sold 
 on the same day by the sheriff. This tract 
 50 
 
 was bid off by Mrs. Jemima McMullen, (the 
 widow of Jos. J. McMullen,) for what price 
 does not appear. She transferred lier bid to 
 Richard Cathcart, by whom it was transfer- 
 red to Caleb Clark, who took sheriff's titles 
 for the same, and still held it in his posses- 
 sion at the date of his answer. There being 
 no allegations in the bill, impugning the sale 
 of this tract of land, nor in fact any proof 
 that it was not fairly sold, and for full val- 
 ue, it is not my purpose in this decree to 
 disturb that sale. 
 
 The negroes of the testator, sold by the 
 sheriff on the first Monday in January, 1846, 
 (eleven in number,) were all bid off by the 
 other administrator, James Cathcart, with 
 the exception of one negro boy named Hor- 
 ace. He was bid off by A. Q. Dunovant, but 
 the boy being anxious to go with his kindred, 
 James Cathcart purchased him from Duno- 
 vant, at an advance upon his bid. The an- 
 swer states, that some of the eleven negroes 
 were old and some young. That they brought 
 the aggregate sum of $4,414, equal to an aver- 
 age of $416, and that this price was full and 
 fair. It seems, on the same authority, that 
 after the negroes were bid off by James 
 Cathcart, and without any previous under- 
 standing to that effect, he and Caleb Clark 
 agreed to divide the negroes. Under this 
 agreement, the negroes were divided ; James 
 Cathcart taking five at $1,865, and Clark 
 
 *123 
 taking six at the price of *$2,549. The only 
 evidence on the subject of the price of the 
 negroes, besides the statement of the answer, 
 is that of James Pagan, the sheriff, who 
 made the sale. He says, that "the negroes 
 sold, not for a high price, but for a pretty 
 fair price, considering the time at which they 
 were sold." I see no unfairness in the sale 
 of the negroes. They, as well as the land, 
 were sold under bona fide executions, at the 
 suit of other persons than the administra- 
 tors. There were no attempts or circum- 
 stances to depreciate their value, or to throw 
 doubt and suspicion on the title. The price 
 given was adequate, and though purchased 
 by an administrator, we have seen, that, un- 
 der the provisions of the Act of 1839, (11 
 Stat. 62,) an administrator is permitted to 
 purchase the property of his testator or in- 
 testate, under whatsoever authority the sale 
 shall be made ; provided, he gives the actu- 
 al value of the property at the time of the 
 sale. I see no reason, therefore, for the 
 Court to interpose in regard to the sale of 
 the negroes ; and so much of the bill as 
 prays that the sale of the negroes be set 
 aside, is dismissed. 
 
 There were two tracts of land owned by 
 Hugh McMullen, in Lancaster district. Both 
 of these were sold by the sheriff of that dis- 
 trict. The complainants cliarge in their bill, 
 that these lands were purchased at very in- 
 adequate prices, for the benefit of the sure- 
 ties to the administration bond of Jos. J. Mc-
 
 McMULLKX V. CATIICART 
 
 *12G 
 
 Mnlloii. Tlierp Is no evidence before me of 
 file «ni:intit.v of tln'se two tracts of laiul. their 
 valn«'. file prices at which they sold, at whose 
 instance, or when they were sold, further 
 than what is to he found in the answer of 
 ("lark and James rathcart. They state, that 
 the tracts contained ahout ri(M» acres each, 
 that they were sold hy the sheriff of Lancas- 
 ter, under e.\e<utions in his ollice, and that 
 one of the tracts was punhased hy Itichard 
 Cathcart for $()"». and the other hy the same 
 Iiarfy for .$(;0. It is denied l>y Caleh Clark, 
 in his answer, that the sale was made under 
 his execution, or that he knew of the sale 
 mitil some time afterwards. He says that he 
 has been informed, that the sale was made 
 under the execution of Wm. Dunlai). He fur- 
 ther states, that the sale of the I^incaster 
 
 *124 
 ♦tracts was long anterior to flie Chester 
 sale, in the life-time of Joseith .1. McMuUen, 
 the late administrator, and before the said 
 Clark represented the estate, or bore any 
 other relations to the estate than those of a 
 creditor. There is no proof to the contrary 
 of this statement, and if it is not to be tak- 
 en as evidence, there is no evidence at all 
 upon tlie subject. Kichard Cathcart bore no 
 fiduciary relations to the estate of Hugh 
 .Mc.Mullen, which woukl forbid his purchas- 
 ing his lands at sheriffs sale at an inade- 
 • luate price. I say inadequate, though there 
 is no evidence of inadecpiacy. besides the 
 simple statement of <piantity and price, from 
 which, I jiresume, that the price was inade- 
 quate. I do not know but tluit the sale was 
 cctnducted in a manner most perfectly fair. 
 In the ah.seiice of proof, I am bound to con- 
 clude that it was. I perceive no grounds, 
 therefore, for supjiosing that Uichard Cath- 
 cart had not a legal right to take titles for 
 J he land that he had purchased at sheriff's 
 sale, on the payment of his bid. Nor do I 
 perceive any imi)ediment, after he had thus 
 accpiired by contract of purchase a perfect 
 right to take titles, to his transferring that 
 right to Caleb Clark, on any consideration 
 that might be agreed on between them. It 
 will be remembered, that, at that time. Clark 
 occupied no conlidential positiiui towards the 
 estate. And if he had, after the right and 
 title of the estate was gone, without default 
 in the administrator, and before his adminis- 
 t ration, and had vest(>(l in a third person, 
 there is nothing to forbid the administrator, 
 iindi'r those circumstances, to purchase for 
 liis own benefit. The sale of the Lancaster 
 lands may have been fraudulent ; but if so, 
 it has not been made to appear. There is. 
 in the judgment of the Court, no ground for 
 vacating or disturbing the sale of the Lan- 
 caster lands, and .so much of the complain- 
 ants' bill as relates thereto is dismis.sed. 
 
 The original bill in this ca.se was filed on 
 the l-'lst May, 1.S47, by James C. McMullen, 
 the son and devisee of the testator, and by 
 Alexander and Lucy McMullen, the children 
 
 of .Tos. J. Mc.Mullen, against Caleb Clark, 
 James Cathcart, Robert Cathcart and Rich- 
 ard Cathcart. The prayer of the bill is, that 
 
 •125 
 the sale.s of *the lands and negroes should be 
 vacated, and for account and relief. The 
 children of Jos. J. Mc.Mullen are interested 
 and claim under the liniifations of the will 
 of their grandfafher. Hugh McMullen. Jame.'% 
 Witherspoon is also made a party, because 
 as ordiiijiry he took possession of some por- 
 tion of the goods of Jos. J. Mc.Mullen. He 
 states that Jos. J. McMullen dii'd insolvent; 
 that there were .some executions out-standiug 
 against him at the time of his death, by vir- 
 tue of which the sheriff levied upon and sold 
 all his visible property. He further states 
 that the .said Jos. J. Mc.Mullen, at the time 
 of his death, was a practicing attorney, and 
 that he had ii<)ssession of various cho.ses in 
 action belonging to his clients, all of which 
 the .said Withersfioon has delivered over to 
 their jjropt-r owners. He further .states that 
 the said Jos. J. McMullen was an attorney 
 in copartnershii) with Thos. J. Wright, who 
 survived him; and that the said Thos. J. 
 Wright, as the surviving partner, was enti- 
 tled to the possession and control of the 
 choses in action, fees and costs due to the co- 
 partnership ; that besides these, there were 
 no choses in action due to the said Jos. J. 
 McMullen ; that he has not received, and 
 does uot expect to receive, a dollar from the 
 estate of the .said Jos. J. McMullen ; and 
 that the said Jos. J. McMullen is said to be 
 largely indebted to the said firm of which he 
 was a co-partner. 
 
 After the said Caleb Clark and Robert 
 Cathcart had filed their answer to the com- 
 plainants' bill, and before trial, C. Clark 
 died 10th January. A. D. 1S.50. The said 
 Robert Cathcart also died, in 1819. intestate, 
 leaving his children, John and Nancy Cath- 
 cart, his only distributees. The .said Caleb 
 Clark also died intestate, leaving his chil- 
 dren and grand-children named in the liijl 
 of revivor, as his distributees, and Henry 
 II. Clark has become his administrator. On 
 the li.'Jd March, 1850. the eomplainints re- 
 vived their bill against the legal repre- 
 sentatives, heirs-at-law and distributees of 
 the .said Caleb Clark and Robert Cathcart. 
 On this state of the pleadings, the case came 
 on for trial, all persons in esse with a pos- 
 sible interest, being iiarties before the Court. 
 It is nowhere stated in the ^tleadings, nor 
 
 *126 
 shown in the evidence, *that James C. Mc- 
 Mullen has any children who may claim as 
 remainder-men under the will of Hugh Mc- 
 Mullen. 
 
 Having vacated the sale of the Catawba 
 plantation. I am next to empiire what is 
 liost to bo done for the relit-f and .satisfac- 
 tion of creditors, and the adjustment of the 
 conflicting claims of the vanous jiarties to 
 the suit. 1 am impressed that the estate has 
 
 51
 
 426 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 been badly managed; liut it is premature 
 to express an opinion on this subject. Fi'om 
 evidence before me, it appears tlaat the in- 
 debtedness is lai-ge. The chiinis of the cred- 
 itors are of course paramount to those of 
 the de^•isees and legatees under the will. 
 And I do not think that the debts can be 
 satisfied without a sale of the lands and 
 negroes. 
 
 It is therefore ordered and decreed, that 
 the- commissioner of this Court do proceed 
 to sell the plantation of the said Hugh 
 McMuUen. on which he lived at his death, 
 on a credit of one and two years, with in- 
 terest from the day of sale ; and the negroes 
 that are, or have been in the possession of 
 the said James C. McMullen, on a credit of 
 one year, with interest from the day of 
 sale; and that the said James C. McMulleu 
 deliver up said negroes to the said commis- 
 sioner for this purpose. It is also ordered, 
 that the commissioner take bond and per- 
 sonal security and a mortgage of the prop- 
 erty to secure the payment of the purchase 
 money, of both the real and personal estate, 
 hereby ordered to be sold. And in reference 
 to the said plantation, it is ordered, that the 
 commissioner give only a quit-claim title to 
 any part thereof, to which the right may be 
 seriously disputed. 
 
 It is further ordered and decreed, that 
 the administrator of Robert Cathcart and 
 the administrator of Caleb Clark, be en- 
 joined from enforcing their executions at 
 law against the estate of the said Hugh Mc- 
 Mullen. It is further ordered, that all the 
 other creditors of the said Hugh McMullen, 
 whether by execution, by specialty or simple 
 contract, be also enjoined from proceeding 
 at law against said estate. It is further or- 
 dered and decreed, that all the creditors of 
 the said Hugh JNIc^IuUen do prove and estab- 
 lish their demands in this Court before the 
 
 *127 
 *Connnissioner in lOcputy. before the next 
 term of the Court; and that the said com- 
 missioner give due notice thereof by ad- 
 vertisement in the newspapers ; and that 
 the commissioner rejiort thereon at the next 
 term of the Court. 
 
 It is also ordered and decreed, that the 
 commissioner enquire and report the bal- 
 ance due on the execution of the said Caleb 
 Clark v. Hugh McMullen, after allowing all 
 proper and legal credits and discounts ; 
 and tliat he afeo, in the same way. enquire 
 and report the amount due upon the execu- 
 tion of Robert Cathcart and the other exe- 
 cutions out-standing against the estate. 
 
 It is further ordered and decreed, that 
 the administrator of the said Caleb Clark 
 account befoi'e the commissioner of this 
 Court for the rents and profits of the plan- 
 tation, (the s-ale of which is herein vacated,) 
 from the time that the said Caleb Clark be- 
 came a purchaser thereof, to the time of ac- 
 counting, with interest on the annual bal- 
 ances, 
 52 
 
 It is further ordered and decreed, that the 
 accounts of Joseph J. McMullen, as admin- 
 istrator with the will annexed of Hugh Mc- 
 Mullen, be referred to the connnissioner, 
 and that he report thereon ; and if any bal- 
 ance shall be found due on the administra- 
 tion accounts of the said Joseph J. McMul- 
 len, i.t is ordered that such balance shall con- 
 stitute a fund for the payment of the claims 
 of creditors, and that for this object the es- 
 tate of each of the four sureties on the ad- 
 ministration bond of the said Joseph J. Mc- 
 Mullen, shall be liable jointly and .severally. 
 
 It is further ordered and decreed, tliat the 
 amount that may be found due by Caleb 
 Clark for the rents and profits of the plan- 
 tation, as well as his ali(iuot or fourth part 
 of any balance that may be found due on the 
 administration accounts of said Joseph J. Mc- 
 Mullen, shall apply as a credit or payment 
 on his execution against tlie estate of Hugh 
 McMullen, if so much be necessary. If all 
 or a part should not be necessary for this 
 purpose, it shall constitute a general fund 
 for the payment of debts, or of the claims of 
 the devisees or legatees under the will. In 
 like manner, it is ordered, that the aliquot 
 
 *128 
 
 or fourth part of the liability *of the said 
 Robert Cathcart for any balance that may 
 be found due upon the administration ac- 
 counts of the said Joseph J. ]McMullen, shall 
 apply as a credit or payment on his execu- 
 tion against the estate of the said Hugh Mc- 
 Mullen, if so much be necessary ; and if not, 
 then it shall constitute a general fund for 
 the payment of the creditors or devisees 
 and legatees under the will, as hereinbefore 
 provided. 
 
 It is further ordered and decreed, that it 
 be referred to the commissioner to enquire 
 and report the amount due by the complain- 
 ant, James C. McMullen, to the estate, for 
 land rent and negro hire, during the admin- 
 istration of Joseph J. McMulleu ; and also, 
 the hire of the negroes that have been in 
 the possession of the said James C. McMul- 
 len, from the time that the same were de- 
 livered into his possession to the time of the 
 sale hereby ordered. 
 
 All the funds of the estate, from whatso- 
 ever source derived, shall be applicable to 
 the payment of the debts, as the Court shall 
 appoint and direct. The residue, if any re- 
 mains, shall be a fund for division among 
 the persons entitled under the will, whose 
 rights as among each other, are hereby re- 
 served for future adjudication by the Court. 
 
 From this decree the complainants appeal- 
 ed, on the grounds: 
 
 1. Because the Chancellor erred in refus- 
 ing to set aside the sale of the slaves be- 
 longing to the estate of Hugh McMullen, 
 made by the sheriff, and which were pur- 
 chased by Caleb Clark, Esq., and James 
 Cathcart, administrators of the said McMul- 
 leu, as the writs of fi. fa., under which said
 
 McMULLEX V. CATIICART 
 
 *131 
 
 slaves were sold, were satisfied liefore the 
 tinie of said sale: or if not actually satis- 
 fied, they were satisfied in law. the said 
 Caleb Clark and Ilobert Cathcart, to whom 
 all the executions in the sheriff's otfice l)e- 
 longed. liein^ lar^'c debtors to the estate of 
 the said Hush McMulien ; and their indebt- 
 edness at the time of said sale, amounting 
 to more than the i)a!ances due on said writs 
 of fi. fa., under which said slaves were sold. 
 
 2. Because the Chancellor erred in decid- 
 
 *129 
 
 ing that there was no *fraud in said sale, 
 and that the said slaves sold for a fair price, 
 when from the proof in the cause, it i.s re- 
 .spectfully sulimitted. that said sale was 
 fraudulent; the time when said sale was 
 made, the large payments made on the exe- 
 cutions under which they were sold, not 
 being credited thereon, and other circum- 
 stances, show that the said sale was a mere 
 contrivance to secure all the property of said 
 estate to the benefit of said administrators, 
 made below its value, and to the great in- 
 jury of the estate of which the said Clark 
 and Cathcart were the trustees. 
 
 3. Because the said decree is erroneous in 
 ordering a sale of the slaves in the possession 
 of James C. McMuUen, until it shall be as- 
 certained whether a sale of the same may be 
 necessary for the payment of debts, and until 
 it shall be ascertained what amount of assets 
 are in the hands of Joseph J. Mc^Mullen, as 
 former admiuistratori of said estate, and 
 the proceeds of the sales of the land, ordered 
 to be sold by said decree may be insufficient 
 for tiiat purpose. 
 
 4. Because the Chancellor erred in dismiss- 
 ing, without prejudice, so much of the bill 
 as relates to the sale of the lands in Lancas- 
 ter, inasmuch as the complainants stated at 
 the hearing of the cause, that tiiey were not 
 prepared, and would not go into that part of 
 the case, and would not and did not offer any 
 evidence or argument in that part of the case. 
 
 Upon so much of the de<ree as directed the 
 commissioner to eniiuire and report the bal- 
 ance due upon the judgment of Caleb Clark, 
 tile comnnssioner reported as follows: 
 
 "Mr. Clark's judgment and execution was 
 for .$.'5,;>1(), with kiterest thereon from the 
 27th February. 1.sl'l>. Mr. Clark had received 
 various sums of money on account of Mr. 
 McMulien, which were not credited on said 
 execution. At the reference, Mr. Clark fur- 
 nished a statement of a settlement of his 
 claims against Hugh McMulien. made with J. 
 J. McMulien, the administrator. t»n tiie l.'ith 
 ^larch, 1X44. In this statement he credits 
 his execution with the following sums re- 
 ceived, to wit: June G, is:js, .'i;;{.:no.O(); April 
 6, 1838, 29:!.00; January <J, 1.S41.'. L'.(X)0.00. 
 *130 
 
 ♦"According to the calculation then made, 
 the balance due at the time of the last i)ay- 
 meut was $2,735.73. But to this statement 
 
 I was added some balances due to Mr. Clark on 
 former settlement, viz: one of .$4.T»..S0, Nov. 
 f>. 1835, and one of .?103.00. due March 13, 
 18.30. and other amounts, which with interest 
 thereon and on the above balance of execu- 
 tion, made the amount of .$4,038.87, due to 
 Mr. Clark, on the said 13th March, 1844, the 
 day of the settlement. On the part of the 
 complainants, it is alleged that the balance 
 of the accounts are not allowable, as they are 
 not sustained by evidence of the former set- 
 tlement referred to, and were barred by the 
 statute of linntations anterior to the testa- 
 tor's death. It appears to the commissioner 
 that these objections are fatal, and that the 
 balance of these accounts cannot he allowed 
 to Mr. Clark. On the other hand, it is urged 
 by the defendant that the sum of .$2,000, ac- 
 knowledged to have been received on the 19th 
 January, 1842, should not be allowed as a 
 credit, inasmuch as the money was never 
 actually received. 
 
 "The admin.istrator, J. J. McMulien. credit- 
 ed himself with the sum of two thousand dol- 
 lars in his returns to the ordinary, and 
 which Mr. Clark also exhibited as a voucher 
 at the reference. It appears that the pay- 
 ment was made by J. J. McMulien giving hij> 
 note in Bank for .$2,000, witli Clark and 
 Robert Cathcart as his sureties, and that the 
 money drawn on that note was applied to the 
 payment of Mr. Clark's note then in Bank for 
 the same sum. This note was renewed several 
 times with .some payments until the 2d April, 
 1845, when it was protested for $1,300, which 
 balance with interest and protest, was settled 
 by Mr. Clark giving his own note in Bank 
 for $1..3,59.37, on the 19th Xovemlier, 1845. 
 Mr. Clark insisted that his execution should 
 be credited with only $G40.G3. the amount 
 paid by J. J. :McMullen on his note, as the 
 other suin of $1,359.37 was not really paid. 
 The commissioner inclines to this view of 
 the case, and is of opinion, that only .$(540.63 
 should be credited on the execution instead of 
 $2,000." 
 
 ♦131 
 
 *To the report of the commissioner the 
 complainants and the defendant. James Cath- 
 cart, excepted on the gromid: 
 
 Because the connuissioner erred in not 
 crediting the execution of C. Clark with the 
 sum of $2,000, on January 19, 1842. being 
 the amount of C. Clark's note in the Camden 
 Bank, paid by J. J. McMulien on that day. 
 
 The report was heard, upon the exception, 
 before bis Honor, Chancellor Wanllaw. at 
 July sittings. 1,S51. His Honor overruled the 
 exception, and the complainants and James 
 Cathcart appealed. 
 
 Gregg & :\IcAliley, for complainants. 
 Boylston, contra. 
 
 The opinion of the Court was delivered by 
 
 DtWKIX, Ch. The first ground of appeal 
 is an attempt to urge the principle of Sim- 
 
 53
 
 *131 
 
 4 RICHARDSONS EQUITY REPORTS 
 
 kins V. Cobb, (2 Bail. GO.) to a ease not witbin 
 that rule of law, or the reason of it. It is 
 true that Caleb Clark and James Cathcart, 
 together \vitb two other persons, were sure- 
 ties on the administration bond of Joseph J. 
 McMullen, deceased. But at the time of the 
 sheriffs sale in January, 1846, J. J. McMul- 
 len bad been dead but a few months — no ac- 
 count had been taken of his administration- 
 no default ascertained— nor bis inability to 
 discharge bis debts established. In this 
 Court all these should appear before any 
 actual indebtedness could be said to exist 
 on the part of bis sureties. Their liability to 
 the estate of Hugh IMcMullen, deceased, was 
 purely contingent, and afforded no ground for 
 the legal inference insisted on, that, in Jan- 
 uary, 1846, they were in possession of assets 
 belonging to that estate. The distinction is 
 adverted to in O'Neall v. Herbert, INIcM. Eq. 
 499. 
 
 The second ground is answered by the facts 
 detailed in the Chancellor's decree. The 
 sales of the slaves were made under the au- 
 thority of other executions in the sheriff's 
 office as well as those of Clark and of Cath- 
 cart. "There were no attempts," says he, 
 "to depreciate their value, or to throw doubt 
 
 *132 
 or suspi*cion on the title. The price given 
 was adequate." This Court concurs in his 
 conclusion that there was no ground to in- 
 validate this sale. 
 
 The third ground of appeal is well taken. 
 It is now conceded that the order for the 
 sale of the slaves in the possession of James 
 C. McMullen was premature, and may prove 
 unnecessary. It is, therefore, rescinded. 
 
 The Chancellor decreed that, from the evi- 
 dence before him, he saw no ground to im- 
 peach the sale of the lands in Lancaster 
 district. Robert Cathcart was the purchas- 
 er of those lands at sheriff's sales, and he 
 was originally a defendant in the suit. He 
 died before the hearing of the cause, to wit, 
 in January, 1850, and though a bill of re- 
 vivor had been tiled against his infant heirs, 
 they had not bad an opportunity to answer 
 or defend the cause. The fourth ground 
 is because the Chancellor erred in dismissing 
 the bill as to the sale of the Lancaster lands, 
 "inasmuch as the complainants stated at the 
 bearing of the cause, that they were not pre- 
 pared, and would not go Into that part of 
 the case, and would not and did not offer any 
 evidence or argument on that part of the 
 case.'' 
 
 It may not be amiss to repeat what is said 
 in Bierdermann v. Seymour, 17 Eng. Ch. R. 
 594, that "it is the duty of the complainant 
 to come fully prepared at the hearing to ask 
 the Court for a decree, and if he is not so 
 prepared, and the suit appears defective 
 from his default, it is then a matter of dis- 
 cretion or indulgence to grant him leave to 
 supply the defect." So, if the cause is not 
 
 54 
 
 ready for bearing in consequence of such, 
 casualty as here occurred, and the want of 
 time to bring the new and necessary parties 
 into Court, leave would be given to post- 
 pone the cause. But it would be replete 
 with inconvenience to sanction a practice of 
 hearing a cause piece-meal, or by detached 
 parts. It is manifest, however, that the error 
 in this case originated in a misapprehension 
 on the part of the Solicitor, and, moreover^ 
 as the heirs of Robert Cathcart, deceased, 
 were not, in fact, repi-esented, they would 
 not be bound by the decree. So much of the 
 
 *133 
 
 *decree, therefore, as dismisses the claim is 
 opened, and the matter ordered to be set 
 down for bearing on the proper parties being 
 represented. 
 
 Bush and Massey interposed a claim 
 against the estate of Hugh McMullen, de- 
 ceased, for moneys which they had i)aid on 
 account of the Lancaster lands purchased 
 by them from Hugh McMullen, and which 
 had been taken from them for defect of ti- 
 tle in their vendor. The Chancellor ordered, 
 the claim to be investigated by the commis- 
 sioner. It is now asked, and it is so decreed, 
 that the connnissioner have leave also to re- 
 port, whether any of the payments, alleged 
 to have been made by Bush and Massey, 
 were received by Joseph J. McMullen as ad- 
 ministrator of Hugh McMullen deceased, and 
 not heretofore charged against him, and 
 that he have leave to surcharge him accord- 
 ingly. 
 
 The only remaining ground of appeal is 
 that submitted on the part of James Cath- 
 cart. It appears that, at the death of Hugh 
 McMullen, and for some time previously, 
 Caleb Clark held an execution against him ta 
 a large amount. On the 2d January, 1842, 
 Caleb Clark having a note of !!;2,000 falling 
 due, or then due, in the Bank of Camden, 
 applied to Joseph J. McMullen, who was 
 then the administrator of his father's estate. 
 McMullen put his individual note in the Bank 
 of Camden, with C. Clark and Robt. Cathcart 
 as his sureties, which note was discounted, 
 and the proceeds applied to the payment of 
 Clark's note in that institution. Clark gave 
 to J. J. McMullen, as administrator of Hugh 
 McMullen his receipt for two thousand dol- 
 lars on account of his execution. In the re- 
 turns of J. J. McMullen to the ordinary he 
 credited himself with this payment as made 
 on account of the estate, and Mr. Clark ex- 
 hiliited it as a voucher at the reference. He 
 also furnished at the same time a statement 
 of a settlement of his claims against Hugh 
 McMullen, deceased, which he had made with 
 J. J. McMullen, his administrator, on the 
 13th March, 1844 ; and in this statement 
 Clark credited on his execution this pay- 
 ment of .$2,000, as made 9th January, 1842. 
 McMullen'snote to the Camden Bank was sev-
 
 CUNNINGHAM v. SHANNON 
 
 •1:^8 
 
 •134 
 
 *ral times renewed with tlu' saiiio *t'iitlorsers, 
 and Sfveral itaynu'iits tlieivon wore made by 
 him: but. on tlie I'd April, 1S45, the last re- 
 newal of .$1,;!.j1)..';7 was protested for non-pay- 
 ment, and was taken up by Clark's note for 
 that amount. It was insisted, and so the 
 c-onnnissioner hesitatinj^ly determined, that 
 <'Iark's execution aj,'ainst Ihmh M<Mullen 
 .should not be credited with the .$1J,(X)(>, but 
 only with $(J40.f,;i, the ditTerenee between 
 that sum and .$l,;5r»'.).:i7; and the exception 
 in this respect was overruled. 
 
 This is not like the ease of Dogan v. Ash- 
 bey, 1 Rich. 36, where a note a^'reed to be 
 taken in payment on a judgment was held 
 to be payment, althouj,'h that would be suffi- 
 ciently decisive of the case. There was no 
 individual indebtedness on the part of J. J. 
 Mc.Muileii to Caleb Clark. But the latter 
 holdiuLr an' execution a;:ainst Hugh McMul- 
 len deceased, J. J. McMullen borrows money 
 from a third person, pays it to Clark on ac- 
 count of hi.s execution, takes his receipt to 
 that effect, and enters it as a credit in his 
 account as adnnnistrator, and, two years aft- 
 tM-wards. in an adjustment or settlement of 
 the amount due on the execution, the credit 
 is set down and admitted by Mr. Clark. It 
 was no sub.stitutiou, but an actual payment. 
 Three years after the payiiient. McMullen 
 fails to pay to the third person the money 
 which he had borrowed and paid on Clark's 
 execution. In reference to the credit on the 
 execution, is it of any importance that ClarK 
 was one of the persons who had become se- 
 curity for the loan which McMullen made in 
 1842 in order to enable him to pay the ex- 
 ecution? If, in January, 1S42, the amount 
 due on Clark's execution ajiainst Hush Mc- 
 Mullen deceased, had lieen .^li.tKX), would not 
 his receipt to the administrator for that sum 
 have entitled the administrator, not only 
 to credit in his account, but to have had sat- 
 isfaction entered on the judf-'uientV In order 
 to raise the money to pay the jud,i,'ment, J. 
 J. McMullen had not only incurred au indi- 
 vidual liability which did not before ex- 
 ist, but he had involved another person be- 
 sides Mr. Clark as his surety. It api>ears 
 to the Court that the payment of the $2.(X)0 
 on !tth .lanuary, 1.S42, was an extinguish- 
 ♦135 
 
 juent of the execution of ♦Calelt Clark to 
 that extent, and should have been so rejiard- 
 ed in takini; an account of the amount due. 
 It is ordered and decreed, that the decrees 
 of the Circuit Court be modified as herein 
 before expressed, and that, in all other re- 
 spects, the same be affirmed. 
 
 JOHNSTON, DAHGAN and WAKDLAW. 
 CC, ((incurred. 
 l)(H?n'e modified. 
 
 4 Rich. Eq. 135 
 
 ESTHER A. CrNMMJH.VM v. CHARLES 
 J. SHANNON and Others. 
 
 (Columbia. Nov. and Dec. Term, 1851.) 
 
 [Dower «S=>41.1 
 
 Hy antp-niiptial contract, husband agreed, 
 that, if his wife shouhl survive liim. and no 
 provisimi sii(iidil In- madi' for her in his will in 
 an aiiioimt e(iiud to .'<L").CXX); or. if he should 
 di(> intestate, and she, as his heir, should not 
 receive from his estate an amount equal to .$l!0,- 
 0(l(>: then, he ehaiKed his estate with the pa.v- 
 nitiit of .$!.'< »,()0(>. or sii.h sum as will make up 
 that amount, to lie held liy the trustee for her 
 use for life, with remainder to the issue of the 
 niarria:ie; provided, that, if she survived, she 
 should have no part of the estate then owned by 
 him, or wiiich siiould be iiurehased by him after 
 the first day of January then next eusuinp. 
 llusliand purchased lands after th<> first day 
 of .January sucecedinfj the date of the niarriajie 
 contract, and died leaving a will, by which, 'in 
 addition to the provisions nuide for his wife by 
 the niarriajje contract,' he devised and be- 
 qiieathed to her some nejiroes and other person- 
 alty and an interest in some of his real estate: 
 — Ilchl^ that the wife was entitled to the provi- 
 sions made for her by the marriage contract, to 
 the devises and bequests in her favor, and to 
 dower in all the lands purchased by the husband 
 after the first day of .January succeeding the 
 date of the marriage contract, so far as such 
 claim of dower was con.dstent with the devises 
 in her favor. 
 
 [Kd. Note.— Cited in Shelton v. Shelton, 20 
 S. C. 506: Hiers v. Gooding, 4:5 S. C. 4.34. 435, 
 21 S. E. 310. 
 
 For other cases, see Dower, Cent. Dig. § 114; 
 Dec. Dig. <g;=>41.] 
 
 [Wills <S=>T82.] 
 
 Testator devised his planta^on and his town 
 house to his daughter for life, for her sole and 
 separate use. with limitations. iVLc. and provided 
 that his wife should be entitled, for life to use, 
 occupy and cultivate four hundred acres of the 
 plantation, to cut and haul from the plantation 
 such fire wood and such timber for buildings 
 or rejiairs as she may desire, and either to use 
 and enjoy his town house, or. to reside on his 
 lilantation. as she may choose: — Held, that there 
 was nothing in the provisions of the will which 
 excluded the wife from her right of dower in the 
 plantation, except in so much thereof as she 
 elected to take for life under the will; and that 
 she was hound to elect whether she would take 
 the town house for life, or reside on the planta- 
 tion. 
 
 I Ed. Note.— For other cases, see Wills, Cent. 
 Dig. S 2022; Dec. Dig. (©=782.] 
 
 *136 
 
 [Wills (3=».j25.] 
 
 ''10 very devise which a husi)and makes of 
 land niton which his wife's right of dower at- 
 taches, is presinned to be made suhjint to the 
 ri^ht of dower, uidess the contrary aiJi)ears on 
 the face of the will, in express words, or hy the 
 .strongest kind of imi)lication. 
 
 [Ed. Note. — Cited in Braxton v. Freeman, 6 
 Rich. .36, 57 Am. Dec. 775; Beaty v. Richard- 
 son. 56 S. C. 191, 34 S. E. 73, 46 L. R. A. 517. 
 
 For other cases, see Wills, Cent. Dig. § 1130; 
 Dec. Dig. (S=>i5'25.] 
 
 [Doircr (g=>12.] 
 
 A widow is not entitled to take dower in the 
 
 <3=5>For other taaes see saiuo lopic aud KKV-NUMUEK In all Key-Numbered Digests and Indexes 
 
 55
 
 *ir>c 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 same lands in whirh she takes an estate for life i 
 under her husband's will. 
 
 [Ed. Note.— Cited in Braxton v. Freeman, 6 
 Rich. 36. 57 Am. Dec. 775 ; Bannister v. Ban- | 
 nister, 37 S. C. 533, 16 S. E. 6112. 
 
 For other cases, see Dower, Cent. Dig. §-i | 
 36-43, 48; Dec. Dig. <©=:5l2.1 
 
 [This case is also cited in Tibbetts v. Langley 
 Mfff. Co., 12 S. C. 480: Shell v. Duncan. 
 31 S. C. 5(!6. 10 S. E. .330, 5 L. R. A. 821; 
 Elder v. Mcintosh, S8 S. C. 289, 70 S. E. 
 807; Brown v. Brown, 94 S. C. 494, 78 
 S. E. 447, as to the inchoate right of dower.] 
 
 Before Dargan, Ch., at" Kershaw, June, 
 1851. 
 
 Dargan, Ch. .loseph Cunningham being 
 about to solemnize a marriage with complain- 
 ant, Esther Cunningham, on the 20th day 
 of July, 1841, entered into an ante-nuptial 
 marriage contract with the said Esther Cun- 
 ningham, (then Niles,) and William McWillie, 
 the trustee of the .said marriage settlement; 
 by which the said Cunningham, in consider- 
 ation of the intended marriage, did stipulate 
 and agree, that in case the said intended mar- 
 riage should take effect, and the said Jo- 
 seph should thereafter die, (the said Esther 
 then living.) not having made provision by 
 his last will and testament for the said Es- 
 ther, in a sum of money or an amount of 
 property equal to .'i'20,000 ; or in case tlie said 
 Joseph should die intestate, and the said 
 Esther shall not receive from his estate, as 
 one of his heirs at law, a sum of money, or 
 an amount of property, e(pial to .'f20,000 ; 
 that then, and in that case, the said Joseph 
 Cunningham charges his estate with the pay- 
 ment to the said William McWillie, trustee 
 as aforesaid, &c., of .$20,000, or such sum of 
 money as will make up the sum of $20,000, 
 when added to what the said Esther may 
 otherwise receive from the estate of her 
 said intended husband. The deed of settle- 
 ment then further provides, that the said 
 sum of money shall be held for the sole and 
 separate use of the said Esther, &c., for the 
 term of her natural life; and from and im- 
 mediately after her death, the said sum of 
 $20,000, or so much thereof as may be held 
 in trust, shall go to the issue of the intend- 
 ed marriage, share and share alike, to them, 
 ■ their heirs and assigns forever ; provided, 
 alw^ays, that in case the said Esther shall 
 survive her said Intended husband, that then 
 and in that case, the said Esther shall have 
 no part or parcel of the real or personal es- 
 
 *137 
 tate of the said Joseph, now ow'ned by *him; 
 nor of such as he may purchase before the 
 first day of January next, or of the increase 
 of the negroes now owned by him, by virtue 
 of any right of dower, distribution or other- 
 wise ; the said sum of $20,000 being settled 
 upon and secured to the said Esther in con- 
 sideration of the said intended marriage, 
 and in further consideration of her hereby 
 relinquishing such claim. 
 
 The marriage took place, and the parties 
 lived together until the day of May, 
 
 56 
 
 18.50, when Joseph Cunningham departed 
 this life, leaving one child by the aforesaid 
 marriage, and several other children by a 
 former marriage; leaving also a large real 
 and per.sonal estate, all of which w'as dis- 
 posed of by his last will and testament. 
 
 It will be unneces.sary for me to notice any 
 portions of this will, but such as bear upon 
 the issues involved in these pleadings. In 
 the first clause, the testator makes provision 
 for his wife as follows: "In addition to the 
 provisions made for my wife, Esther A. 
 Cuiuugham, by virtue of a deed of mar- 
 riage settlement, or antenuptial agreement, 
 dated the 20th day of July, eighteen hundred 
 and forty-one, executed by myself, the said 
 Esther A. (then Esther A. Niles,) and AVil- 
 liam McWillie, I give and bequeath to my 
 said wife the fcdlowing named negroes, to 
 \^it : Al)ram, Frankey, Betsey, Lucy, Tom, 
 William, Thomas, Martha, Jim* Williams, 
 and Hannah Williams, for and during the 
 term of her natural life ; and from and 
 immediately after her death, I give the 
 saiil negroes to such of my children as 
 may be living at the time of her death," 
 with various limitations over. In the lat- 
 ter part of the same clause he also gives 
 her his library, his two carriages, and a 
 pair of hor.ses ; and he says, "she .shad be 
 further entitled to the benetits reserved for 
 her, in the clause of this will, devising the 
 planration called Betty's Neck." 
 
 In the second clause of his will, the testa- 
 tor gives to his daughter Elizabeth, during 
 the term of her natural life only, with sun- 
 dry restrictions and linutations. all that 
 plantation lying on the western side of the 
 Wateree. usually called the Betty's Neck 
 place, purchased ))y him from William Mc- 
 
 *138 
 Willie, including all the swamp *and all the 
 high lands purchased from said McWillie, 
 and embracing all the land then owned by 
 him on the west side of said river ; also his 
 dwelling house in the town of Camden, on 
 De Kalb street, together with all the prenu- 
 ses thereto attached: — and proceeds by the 
 same clause to give to his daughter Elizabeth 
 a large legacy of negroes with limitations 
 over; and to her absolutely, all the live 
 stock, provisions and implements to be found 
 on the said plantation at his decease. The 
 testator concludes the said clause as fol- 
 lows: "It is, however, my will, desire and di- 
 rection, and the devise in this clause contain- 
 ed, is made subject thereto, that my said 
 wife, Esther A. Cunningham, shall be enti- 
 tled to use, occupy and cultivate, for and dur- 
 ing the term of her natural life, four hun- 
 dred acres of the Betty's Neck place, to wit: 
 two hundred acres of swamp land, two hun- 
 dred acres of high land, adjoining the land 
 of Powell McRae ; and also for and during 
 the term of her natural life, to cut and haul 
 from the said Betty's Neck place, such tire 
 wood, and such timber for buildings or re-
 
 CLXXIXGIIAM V. SIIAXXOX 
 
 »141 
 
 pairs, for licr own use, as sho may desire; 
 fliid also, that my said wife sliall liave tlie 
 •ise and enjoyment, for her natural lift>, of 
 either my Camden house, in this elause men- 
 lioned, or she may reside for life on the Het- 
 ty's Xeek place, as she may choose; and 
 with the house so occupied hy my said wife, 
 she shall have the use (without heinfj ac- 
 countahle for the waste) of the household 
 and kitchen furniture found in such house, 
 and on the premises, for her luitural life ; 
 and from and immediately after her death, I 
 {live the same or so much thereof as re- 
 mains, to my daughter Elizaheth." 
 
 By the third clause, the testator gave 
 to his daughter. Mary M. Cureton, with vari- 
 ous limitations and reniiiinders, a large real 
 and personal estate, and included in the de- 
 vise is the testator's "house and premi.ses 
 situate in Kirkwood. lately purchased by him 
 from William McWillie." 
 
 Hy the 11th clause of his will, he gave, in- 
 ter alia, to his grand son, Cunningham R. 
 Cureton. a tract of land, designated therein 
 "as the Stark plantation, situated near Cam- 
 den, on the Wateree river, and known as the 
 
 M39 
 Belton place ;" and hy a codicil to his *will, 
 he gave to his daughter Elizabeth, a tract or 
 plantation, designated therein as the Stock- 
 ton place, and called Red Hill, lately pur- 
 chased from W. J. Taylor; and also a tract 
 designated in the codicil as the piece or par- 
 cel of land situate in Kirkwood, near the 
 town of Camden, lately purchased from Wil- 
 liam E. Johnson, and a tract of land inirdias- 
 ed in Jaimary, 1X40, by .Tames B. Cureton and 
 Joseph Cunningham, jointly, from Saml. F. 
 Hurst, trustee of W. K. Young and wife. 
 and containing one thousand acres. 
 
 All the various portions of the testator's 
 real estate which have been thus particularly 
 noticed, and which have been devised by him 
 as has been stated in my preceding re- 
 marks, have been acquired by the testator aft- 
 er the first day of Jaiuiary next succeeding 
 the date of the execution of the deed of mar- 
 riage .settlement, and the solemnization of the 
 marriage, and are therefore not subject to the 
 inhibitions of the deed of marriage settle- 
 ment, as to the complainant's claim of dow- 
 er ; and she has filed this bill, inter alia, 
 for the inirpose of having lier dower assigned 
 to her in said lands, which she claims as 
 not inconsistent with the provisions of the 
 will. 
 
 She prays, that the executors of the said 
 Josei)h Cunningham may he decreed to jiay 
 the said sum of twenty thousand dollars, and 
 the interest due thereon to a trustee to be 
 sultstituted in the place of William McWillie. 
 who has left the State, and that her dower 
 nu\y be assigned her in all the lands Mciinired 
 by the t' stator. suliscciuent to the first day 
 of January next suciH-cdin-,' the date of the 
 marriig' seltlenient, and fo:- an acco nt of 
 the rents and profits: auil that she -may be 
 
 permitted to take the same, together with 
 the provisions made for her by the said will, 
 and by the said deed of n arriagi^ >ettle- 
 nient, &c. 
 
 '1 h ' claim of dower is highly favored in 
 e uity, whose du'y it is p-ihaps. above all 
 f)tber jnrisdi( tions of the country, to afford 
 its protection to the weak against the strong. 
 
 Dower is not unfrecpi ntly the only re- 
 source of the unfortunate widow, under the 
 double calamity of the lo-s of husband and 
 property. And she is sometimes driven to 
 
 • *140 
 resort to it, where an in*considerate or un- 
 kind husband has despoiled her of her legiti- 
 mate rights in his estate by the provisions of 
 his will. 
 
 Dower is a right, which, inchoate during 
 the coverture, becomes absolutely vested in 
 the wife as an estate, on the death of her 
 husliand ; and is as much beyond his con- 
 trol or power of disposition as her own in- 
 heritance. It not being bis to give, every de- 
 vise which he makes of the land upon which 
 the right of dower attaches, is presumed to be 
 given subject to the legal estate, unless the 
 contrary appears on the face of the will, in 
 express words, or by the strongest kind of 
 Imidication. 
 
 In Park on Dower, 2,37. it is .said to be "a 
 right attaching by implication of law ; which, 
 although it may possibly never be called into 
 effect, (as where the wife dies in the life- 
 time of the husband.) yet from the moment 
 that the fact of marriage and of seisin have 
 concurred is so fixed on the land, as to be- 
 come a title paramount to that of any other 
 person claiming under the husband by a 
 sui)sequent act." 
 
 "To exi lude a widow from her legal right, 
 (of dower) either th(>re must be an express 
 declaration to that efftct. or it mrst clearly 
 appear from the whole frame of the will, 
 that it was the testator's intention to give 
 her somethin.g. wholly inconsistent with her 
 enjoyment in that le,gal right." See the au- 
 thorities establishing this luinciple, collected 
 in 1 Roper on Ilnsb. and Wife. .579, et seq. ; U 
 Roi)er on Legacies. 5'10, et seq. 
 
 "It is to be collected from all the cases, 
 that as the right to dowser is of itself a clear 
 legal right, an intent to exclude that right 
 by voluntary gift must be demonstrated, ei- 
 tluM- by exiii-ess words or l)y clear and mani- 
 fest inii)lication. If there be any thing am- 
 biguous or doubtful ; if the Court cannot 
 say. that it was clearly the intention to ex- 
 clude, then, the averment that the gift was 
 made in lieu of dower, cannot be sujiiwrted ; 
 and to make a case of election, that is nec- 
 essary; for a gift nnist be taken as pure 
 until a condition appear. This I take to be 
 the ground of all the authorities." Per Lord 
 Redesdale in Burmingbam v. Kirwiu, (2 Sch. 
 and Lef. 4."):.'.) 
 
 *141 
 
 *It was contended in the argument, that 
 
 57
 
 nn 
 
 4 KIChARDSON'S EQUITY REPORTS 
 
 the En;;llsli as well as American decisious on 
 this subject are discordant, and that it is 
 dithcult to extract from them any settled 
 lirinciiile. To me it appears, that there has 
 heen little or no ditference in tlie decisions, 
 as to the general principles by which ques- 
 tions of this sort have been adjudged. On 
 the contrary, there has been a remarkable 
 harmony among the Judges in the acknowl- 
 edgment of the great and leading doctrines 
 upon which they have uniformly, and for 
 several centuries, professed to have been gov- 
 erned. The discord, ii any. has arisen from 
 the different and ever varying circumstances 
 of the cases ; and the difficulty has always 
 occurred in the practical application of es- 
 tablished and acknowledged principles. It 
 is very easy with the charts before us, to 
 define and express the general rules appli- 
 cable to the subject. But when the task is 
 to construe the will, for the purpose of as- 
 certaining whether the claim of dower be 
 inconsistent with tlie intention of the testator 
 clearly expressed, or necessarily implied ; 
 hoc opus est, hie labor. That cases have been 
 erroneously decided none can doubt who will 
 read the reports. But the conflict in the de- 
 cisions has arisen, for the greater part, in 
 the manner and for the causes that I have 
 stated. Those, too, who preside in Courts, 
 possess, like other men, differently consti- 
 tuted minds. Two strong-minded and learned 
 Judges, basing tneir judgment upon the same 
 general principles, may rise from the con- 
 struction of a deed or will with opinions as 
 opposite as the antipodes. It is obvious that 
 these difficulties are inherent in the nature 
 of the human mind, and must continue to 
 exist in the practical enforcement of this, 
 as of all other legal rights, by human tribu- 
 nals, as long as the intellectual condition 
 of man remains unchanged. 
 
 But to recur to the more immediate subject. 
 That the Iilnglish law has been correctly de- 
 fined in my preceding remarks, is abundantly 
 proven by the British Statute which alters it, 
 (3 and 4 Will. 4 ch. 105, sec. 9.) By this, it 
 was enacted, that where a husband shall de- 
 vise any land out of which liis widow would 
 be entitled to dower, if the same were not so 
 devised, or any estate or interest therein to 
 
 *142 
 *and for the benefit of the widow, such widow- 
 shall not be entitled to dower out of, or in 
 any such land of the said husband, unless a 
 contrary intention be declared by his will. 
 The statute proceeds upon the assumption, 
 that the law before was the reverse of that 
 which was therein enacted, and contained a 
 clause restricting it to a prospective opera- 
 tion. The statute itself proves that the re- 
 verse of the provision therein enacted was the 
 acknowledged principle of the common law. 
 
 In South Carolina, there has been no leg- 
 islation materially affecting the widow's 
 right of dower; and the case liefore me must 
 be adjudged by the principles of the English 
 58 
 
 I conniKin law, as they have expounded in 
 I Westmin.ster Hall. Gordon v. Stevens, 2 
 Hill Eq. 47 [27 Am. Dec. 445], 2 Johns. Ch. 
 I 448. I cite these cases for the purpose of 
 shewing the source to which American Courts 
 I resort for illumination on this subject. 
 
 I have shewn that the rule of the c-ommon 
 law is, that the claim of dower will prevail, 
 unless it will defeat the intention of the 
 testator clearly expressed upon the face of 
 the will, or appearing by necessary implica- 
 tion. 
 
 There are other cases, (some of which will 
 be hereafter cited,) by which this abstract 
 proposition has been) more distinctly and 
 particularly illustrated, and its meaning ex- 
 plained. Aided by the light reflected from 
 these, I will proceed to adjudge the case in 
 hand. 
 
 And first, as to the Betty's Neck place lying 
 on the western side of the Wateree river, 
 purchased from William McWillie, the testa- 
 tor gave this place to his daughter Elizabeth 
 Cunningham for life, to her sole and separate 
 use, with remainders, «&c., embracing the 
 whole fee, subject to a right on the part of 
 his wife, the complainant, to use, occupy and 
 cultivate, for and during the term of her 
 life four hundred acres of the said place, two 
 hundred acres of the swamp and two hundred 
 acres of the high lands adjoining the land of 
 Powell McRae, with the right to cut firewood, 
 timber for repairs, «Jcc., with also the right 
 to liave the use and enjoyment for life of 
 either his Camden House, or to reside for 
 
 *143 
 *life on the Betty's Neck place, as she may 
 choose. The four hundred acres thus givea 
 to the widow for life, constitutes, as I under- 
 stand, but an inconsiderable proportion of 
 the whole value of the place. The question 
 here is, whether the gift of such a life inter- 
 est or estate in the Betty's Neck place 
 amounts to a clear and manifest intention on 
 the part of the testator to exclude her right 
 of dower, or, in other words, is the right of 
 dower so inconsistent with the provisions of 
 the will as to put the widow to her election'.'' 
 The gift of the whole fee to a third person 
 without condition or restriction, with gifts of 
 other property to the wife in the same will, 
 is not incompatible with the claim of dower 
 in the land so disposed of in fee to the said 
 third person. And I do not know that this 
 has been doubted within the authentic period 
 of the English Common Law. Does the gift 
 of a subordinate interest to the widow for 
 life in the land given to another in fee, alter 
 the case"? Are the two rights incompatible? 
 Does such a provision, according to the au- 
 thorities, amount to a clear and manifest 
 intention, on the part of the testator, to ex- 
 clude the widow from her right of dower,, 
 or to put her to her election? 
 
 The leading case in- the reports, where the 
 testamentary disposition to the widow is an 
 estate or interest less than the fee in lands.
 
 CUNXIXGIIAM V. SHANNON 
 
 *146 
 
 of whifh she is dowahle, with a devise to 
 js::(irlu'r. (if the residue of the estate in said 
 hinds, is the case of Lawreiiee v. Lawrence, 
 •_• \ern. .;(>".; S. C. 3 Bro. I'ar. Ca. 4.S.!. The 
 testator jrave his wife an estate viduitate 
 duranfe. in the whole of the premises, with 
 reinain(h'r to anotlier on tlie death or mar- 
 riage of the widow. lie also sJive t<» his wife 
 the whole of his personal estate. She proved 
 the will, jiosst'ssed herself (jf the personal 
 estate, and entered upon the lands devised 
 to her durinj; widowhood. Siie afterwards, 
 hy an ae4^ion at law, recovered her dower 
 in the same lands, which was assij;ned tt» her. 
 The remainderman tiled a bill to he relieved 
 afjainst the judj,'nient at law, and the case 
 connnj; liefore Lord Somers, he decided that 
 tiie testamentary dispositions in favor of th«' 
 wife were in satisfaction of her claim of 
 dower. This decree was reversed by Lord 
 
 *144 
 Keeper *Wrij;ht, on the ground, that there 
 was nothing in the will which manifested a 
 sutliciently clear intention that the widow 
 was to be excluded frtim her dower. The 
 matter rested here. No appeal was taken 
 to the House of Lords. In a question which 
 was res Integra, and totall.v iviaffected by an- 
 tecedent or subsequent authorities. I should 
 have no hesitation in following the opinion 
 of the able and accomplished Somers, in 
 preference to that of Lord Keepi-r Wright. 
 The latter was a man totally unfit for his 
 high station, and owed his elevation, and his 
 possession of the great seal for five y*'ars, 
 lo his obscurity, and liis utter want of qual- 
 ification. The seeming paradox may l)e ex- 
 plained by the fact, that the great men of 
 the day were deterred by the perilous nature 
 of the times, and the instaltility of the public 
 administration, from accepting this high ant! 
 responsible olHce. («) But the principle does 
 not rest upon the authority of Lord Keeper 
 Wright. 
 
 On the death of the plaintiff in the former 
 suit, one A. Lawrence, who was next in 
 remainder, became entitled. He also insti- 
 tuted a suit to be relieved against the judg- 
 ment in dower. The case came before Lord 
 Cowper. who refused to reverse the judgment 
 of Lcn-d Keeper Wright, and on appeal tt) 
 the House of Lords, the decree of r>»rd Cow- 
 per was anirmed. This, it must be admitted, 
 was a very .solemn and authoritative settle- 
 ment of the question, and the rule thus estab- 
 lished has continued to be the law of KnglaMd 
 from that day to the third and fourth of Wil- 
 liam IV. and to the present time, in regard to 
 the wills before the passage of that statute. 
 Ilitchin V. Ilitchin, I're. Ch. 1.'!.'! ; Brown v. 
 I'arry, 2 Pick, (is."); Birnnngham v. Kirwin. 
 li Siho. and Lef. 444; Ix»mon v. Lemon, s 
 Vin. Abr. ;\m\ Ilolditch v. lloir.itcii. l' 
 Young & Col. IS. Of these ciiscs. ilic last 
 
 («) 4 L(l. Ciiinp. Lives of the Cliau. I'.jU ; 3 
 liurnct Hist. 335. 
 
 cited, Ilolditch v. Ilolditch, as one strongly in 
 point, an<l of a recent date, I Avill notice more 
 particularly. 
 
 The testator. .Tohn Ilolditch, devised to his 
 wife, Mary Hoblitch, a^ house during her 
 widowhood — he also gave her an ainuiity of 
 £.jO for life, whidi, after death, was to sink 
 
 ♦145 
 into and form a jtart *of his residuary estate. 
 The annuity was charged upon his freehold 
 estate in the Parish of Klton, which was de- 
 vised, subject to such charge, to the testator's 
 son. .John Ilolditch, in fee. 
 
 The bill was filed by .Mary Ilolditch, the 
 wi<low, against .John Ilolditch, the sou and 
 devisee of the testator, claiming dower out 
 of all the testator's freehold estate, the an- 
 nuity of £~j() for life, and the use of the 
 house during her widowhood. 
 
 The \'ice Chancellor, (Sir Knight Bruce,) 
 said: "I feel Ijound by the present state of 
 the authorities to say, that a mere gift of 
 an annuity to the testator's widow, although 
 charged on all the testator's propertj', is not 
 sutficient to put her to her election ; and I 
 Consider my.self e<iually bound by the author- 
 ities to say that a mere gift to the widow so 
 charged, and a gift of the whole of testator's 
 real estate, though specified by name, to some 
 other person, are not together of themselves 
 sulficient to put a widow to her election. 
 And, moreover, a gift of a porticui of the 
 real estate, whether for life or during widow- 
 hood, is not sutficient as to the residue, to 
 put the widow to her election in respect of 
 dower." 
 
 "It is clear, therefore, that the annuity 
 does not bar the wife of her dower. The 
 testator, however, has given her his house, 
 (which is admitted to be freehold.) during 
 lu r widowhood ; and, after her marrying 
 again, he directs that the same, (that is the 
 house.) shall fall into and form a part of 
 his residuary estate. Now, if the testator 
 had pointed to a particular mode of using 
 and enjoying the house as t)ne entire thing, 
 after the widow's second marriage, it might 
 be possihl.v right to hold, that the will con- 
 tained a declaration, as in Roadly v. Dixon, 
 that she should not many again and also 
 claim her right of dower ; because, by so do- 
 ing, she would disappoint the intention of 
 the testator, that the property should be 
 used, and enjoyed in a particular manner. 
 The testator has not done thi.s." 
 
 "To i»ut the widow to her election, on the 
 ground that her claim of dower is incou- 
 sistent with the intention of the testator, 
 as to some other legatee or devisee, there 
 nnist be something beyond the mere gift to 
 the legatee or devisee. There must be such 
 
 *146 
 ♦circumstances attending the gift, as that 
 if dower be admitted, the legatee or devLsee 
 will be disappointed in enjoying the proper- 
 ty in the mode pointed out by the testator. 
 
 59
 
 Me 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 No such circumstances occur in this case. 
 Therefore, I consider myself bound by the 
 authorities to say, that this will does not 
 exhibit an intention to exclude the wife from 
 dower, to which she is prima facie entitled." 
 It was decreed that the widow was entitled 
 to the annuity for life, to the house during 
 widowhood, and to dower out of all the 
 testator's lands of which she was dowable. 
 
 Upon the authority of the cases I have 
 cited, to which many others intermediate be- 
 tween Lawrence v. Lawrence, and Holditch 
 V. Holditch, mii,'ht be added, I hold that the 
 interest in the Betty's Neck place, devised 
 to the widow, is not inconsistent with her 
 legal claim of dower in the same premises, 
 by metes and bounds, or by assessment, as 
 the case may be. 
 
 The devise of the Betty's Neck place pre- 
 sents the strongest case against the claim of 
 dower. And if the widow is not put to her 
 election in reference to the Betty's Neck 
 place, a fortiori, she is not bound to elect 
 in regard to any other of the testator's lands 
 of which he became seized after tlie 1st 
 January, 1842. 
 
 It may not be amiss to notice an objection 
 urged against the claim of dower as to the 
 Betty's Neck, and the house and premises 
 situated in Kirkwood, purchased from Wil- 
 liam McWillie. The first was given to the 
 testator's daughter, Elizabeth, during her 
 natural life, with remainders over, "for her 
 sole and separate use ;" and the second was 
 given to his daughter, Mary M. Cureton, for 
 lier life, "to her sole and separate use," 
 with remainders over. It was supposed that 
 the circumstance, that tliese devises were to 
 the sole and separate use of the devisees, 
 rendered the case, as to these devisees, an- 
 alogous to the case of Miall v. Brain, 4 Madd. 
 119. In the latter, the testator devised his 
 real and personal estate in trust among other 
 things, to permit his daughter to use and 
 occupy a certain house, (being a part of the 
 estate devised,) for her life. It was held l)y 
 the Vice Chancellor, (Sir J. Leach,) that the 
 testator intended that his daughter should 
 
 *147 
 
 have the per*sonal use and occupation of 
 that house during her life ; which would be 
 inconsistent with the right of the widow to 
 be endowed of the same house. There is no 
 analogy in the cases. Here the gift to the 
 devisees, to their sole and separate use, was 
 intended only to exclude the marital rights, 
 and not to secure to them the personal u.se 
 and occupation of the premises. Lands de- 
 vised in this mode, if there be no other quali- 
 fying circumstances, are as much subject to 
 the claim of dower, as if the legal estate 
 were directly given. 
 
 It is ordered and decreed, that the com- 
 plainant is entitled to retain all the interest 
 and estates given to lier in the devises of 
 Joseph Cunningham's will; and also to have 
 60 
 
 her dower assigned to her in all the lands 
 acquired by the said Joseph Cunningham, 
 after the first day of January succeeding the 
 date of the deed of marriage settlement be- 
 tween him and the complainant. It is fur- 
 ther ordered, that a writ for the admeasure- 
 ment of dower do issue according to the usu- 
 al forms and practice of this Court. 
 
 The next question which I am to consider 
 arises on the claim set up by the complainant 
 for rents and profits. It is not denied, that 
 if she is entitled to dower, she is also en- 
 titled to an account for rents and profits. 
 But what is to be the measure of her com- 
 pensation and the mode by which it is to be 
 ascertained? At common law, no commuta- 
 tion in lieu of dower was allowed ; but the . 
 widow was only entitled to recover her dower 
 by real action, without damages or costs. 
 The statutes of Mertou and Gloucester gave 
 her an action, by which, (where the husband 
 was seized at his death.) she was entitled to 
 recover one-third part of the land for life; 
 with one-third part of the annual value of 
 the land, or uiesne profits from her husband's 
 death until she recovered judgment of seisin, 
 together with costs of suit. Her recovery of 
 one-third of the mesne profits was by way of 
 compensation or damages, for the time she 
 was kept out of the possession and enjoyment 
 of her right. 1 Rop. Ilusb. and Wife, 439. 
 For the wife had no right to enter until her 
 judgment of seisin. 
 
 Our statutes allow a sum of money to be 
 
 *148 
 
 assessed in lieu of *dower when, in the judg- 
 ment of the commissioners, to whom the writ 
 for admeasurement of dower has been direct- 
 ed, partition cannot be made, and dower as- 
 signed without injury to some of the parties 
 in interest. But no change has been made in 
 the lavv^ in regard to the mode of conqiensat- 
 iug the widow during the time her riglit has 
 been withheld, with the exception of the case 
 specifically provided for by the Act of 1S24. 
 This Act provides alone for the case, where 
 the husband has alienated in his life and 
 does not die seized. And under these circum*- 
 stances, in addition to her share of the value 
 of the land, she is entitled to interest therpoiL 
 from the time of the accrual of her rigbt ; 
 that is to say, from the death of the husband. 
 In all other cases she is comix-nsated for the 
 detention of her right by estimating her 
 share of the rents and profits. In a Court of 
 Law this is done by the jury. In Equity, 
 the commissioners appointed to assign dowei', 
 though Ihey may, under certain circumstanc- 
 es, assess a sum of money in lieu of dower, 
 have no power or authority to go into the 
 question of mesne profits, or to estimate the 
 damages or compensation to be allowed the 
 widow for the detention of her right. Gor- 
 don V. Stevens, 2 Hill Eq. 429. That is done 
 in this couit, by reference to the master, with 
 directions to take an account of the rents
 
 CUNXIXGIIAM V. SHANNON 
 
 ♦151 
 
 and profits, aiiti to estimate niul report the 
 widow's shiirc tlu'reof. It is acvonlinj.'ly or- 
 dered, that tlu" master do talie an areoiint 
 of the rents and profits of all the lands of 
 Joseph Cunnin^'ham. of which by this decree 
 the compljiinant is entitled to he endowed, 
 eoiumen<-ini,' said account from the death of i 
 the said Joseph Cuinun..'iiam ; and that he i 
 report the «)ne-tlurd part tliereof to Ite due 
 to the complainant for her share thereof. 
 It is further ordered and decreed, that the j 
 share of the complainant in said rents and \ 
 profits, so to he ascertained, be paid to her by 
 the executors of the last will and testament | 
 of the said testator. | 
 
 It is further ordered and decreed, that i 
 the said e.\ecutors do pay to the trustee of 
 the coinidainant, the sum of twenty thousand 
 dollars, secured to her by the terms of the 
 deed of marriage settlement, with interest 
 thereon from the death of the said Jo.seph 
 
 *149 
 ♦Cunninjrham ; the said sum of .$iiO.(MK) and 
 the interest to be held by the said trustee 
 for the uses of the trust. 
 
 It is further onlered. that the costs of this 
 suit be paid by the said executors out of the 
 assets of the testator. 
 
 Elizabeth Cuuninjiham appealed, on the 
 grounds: 
 
 1. Because the complainant is not entitled 
 to dower in the plantation called Betty's 
 Neck, and to the devises and bequests under 
 the will, but must elect. 
 
 2. Because, upon a just construction of the 
 niarriaiie contract, complainant (if dower is 
 assipied her) is only entitled to receive under 
 the covenants of the deed, such sum of money 
 as will make up the sum of twenty thousand 
 dollars when added to the value of the dow- 
 er assitrned her. 
 
 3. Because the rents and profits of the 
 lands for the year Is.'jO are, by the Act of 
 1789, to be first applied to the payment of 
 •'taxes, overseer's waires. expenses uf physic, 
 food and clothinf:." and compliiinant can only 
 take tif at all) one-third of the profits of 1S50, 
 after deducting' therefrom the exiienses so 
 charged thereon. 
 
 The executors appealed and moved the 
 Court to modify that part of the decree, 
 which orders the executors to pay to com- 
 plainant the rents and profits on certain 
 lands, from the death of the testat<tr up to 
 the time the sanu- may be paid to her. in 
 which lands she is declari'd by the decree to 
 be endowed. Because it is alleged in the an- 
 swer of the ex»'cutors and was established at 
 the hearing, that on the first of January, 
 1851. they had delivered up to the devisees of 
 those lands the possession thereof, who are 
 therefore liable, not the exeiutors. 
 
 The executoi-s also moved to add to the de- 
 cree, an order that complainant be charged 
 with the supplies furnished to luT from the 
 plantations in IsijO. to be deduc-ted from' the 
 
 rents and profits ordered to be paid to her by 
 the executors. 
 
 Kershaw, for Elizabeth Cunningham. 
 
 J. M. DeSaussure, for the executors. 
 
 Gaston, for complainant. 
 
 ♦150 
 •The opinion of the Court was delivered by 
 
 DARGAN, Ch. As to the right of the coni- 
 plainant to be endowed of the lands of her 
 deceased husband, Joseph Cunningham, ac- 
 <iuired after the first day of January, A. D. 
 is4i;, this Court concurs in the circuit de- 
 cree, and the gi'ueral reasoning on which it is 
 founded. I will, on the present occasion, add 
 notiiing in the way of argument to what has 
 iieen said in the circuit decree on this branch 
 of the case, though the sui>jeot is by no means 
 exhausted. On the complainant's claim of 
 dower, the judgment of the Circuit Court Is 
 rendered in the following language: "It is 
 , ordered and decreed, that the complainant 
 I is entitled to retain all the inten>sts and es- 
 1 tates given to her by the devises of Joseph 
 (^nminghani's will; and also to have her 
 dower assigned to her in all the lands ac- 
 quired by the .said Jo.seph CuniiinL'ham. after 
 the first day of January succeeding the date 
 of the deed of marriage settlement between 
 him and the complainant." This is perhaps 
 not sufiiciently explicit upon one point, and 
 may by construction be made to mean more 
 than was intended, though no such construc- 
 tion of the decree has been contended for on 
 the part of the complainant. It was not in- 
 tended to say, that she should take un«ler the 
 will the landed estates given to her by that 
 instrument; and al.so to be endowed of those 
 same estates. It has been settled, that where 
 the testator gives lands to his wife for life 
 by his will, it is repugnant to his intentions 
 manifested by a plain imi)lication. that she 
 ' should b(> endowed of those .same lands. Wil- 
 son V. Ilayne, (Chev. Eq. liO;) Caston v. Cas- 
 ton, (12 Rich. Eq. 1;) Lord Dorchester v. Earl 
 of Etfingham, (Coop. Rep. 319.) 
 
 The testator gave to the conq)lainant, for 
 lite, the use of four hundred acres in the Bet- 
 tys Neck place. He also gave her the priv- 
 ilege of residing in the mansion bouse on 
 that place, for life, or in his bouse and lot, 
 in the town of Camden, for her life, as she 
 might choose. She is, in the first place, of 
 coui-se, to eli'ct, whether she will take the 
 mansion house and the easements, on the 
 Betty's Neck place or the house and l<>t in 
 
 *151 
 Camden. To 'this election slie is put by the 
 will. She is, in the next place, to elect 
 whether, as to the lands given to her by the 
 will, she takes them under the provisi.ms of 
 the will, or by her right of dower in those 
 same lands. To the extent, that she elects to 
 take the real estate given to her for life by 
 tile will, she is not to be emlowed; and it is 
 so ordered and decreed. It is further order- 
 
 61
 
 '^151 
 
 4 RlCIIxVRDSONS EQUITY REPORTS 
 
 ed and decreed, that she make the elections 
 herein designated, by the first day of June 
 next, unless, before that date, she applies 
 for further time, on reasonable cause shown. 
 
 Aj? to the (luestiou raised in the defendant's 
 third ground of appeal, and also as to that 
 made in the first ground of appeal taken by 
 the executors, it is ordered and decreed, that 
 the case be remanded to the Circuit Court for 
 a trial de novo; that the commissioner take 
 the accounts of the rents and profits as or- 
 dered by the circuit decree, and that he re- 
 port thereon, with leave to state any special 
 matter ; the equities of all the parties being 
 reserved. It is also ordered and decreed, that 
 the accounts for supplies furnished by the 
 executors to the complainant, mentioned in 
 the executors' second ground of appeal, be 
 referred to the commissioner, and that he re- 
 port thereon, with any special matter; the 
 equities of the parties to be reserved. 
 
 It is further ordered and decreed, that the 
 circuit decree be so modified as to conform 
 to the decree of this Court ; and that in all 
 other respects the circuit decree be affirmed 
 and the appeals be dismissed. 
 
 JOHNSTON, DUNKIN and WARDLAW, 
 CC. concurred. 
 Decree modified. 
 
 4 Rich. Eq. *I52 
 
 *A. .J. McQueen and Wife v. JOSHUA 
 FLETCHER and Others. 
 
 (Columbia. Nov. and Dec. Term, 1851.) 
 
 [Evidence (®=>178.] 
 
 The existence of a judgment and other pro- 
 ceedings iu partition, in the Common Pleas, 
 established on parol evidence. 
 
 LEd. Note.— Cited in Brown v. Coney, 12 S. 
 C. 151. 
 
 For other cases, see Evidence, Cent. Dig. §§ 
 583, 585 ; Dec. Dig. <®=>178.] 
 
 [Partiiioii <©=3llG.] 
 
 Qiicre: Where, on proceedings in partition 
 under the Act of 1791, land is allotted to one 
 distributee, and he is required to pay another 
 distributee a sum of money in lieu of his share 
 of the land, does the judgment transfer the ti- 
 tle, irrespective of the payment of the purchase 
 money, and establish only a lieu on the land, or 
 is the title not vested until pavmeut of the mon- 
 ey ?(«). 
 
 LEd. Note. — Cited in Kerngood v. Davis, 21 
 S. C. 203; Simms v. Kearse, 42 S. C. 48, 49, 
 20 S. E. 19. 
 
 For other cases, see Partition. Cent. Dig. §§ 
 315, 4.50-453; Dec. Dig. (S=>116.] 
 
 [Payment d^^^GG.] 
 
 The presumption of payment which arises 
 from the lapse of twenty years, is not a pre- 
 sumption of law, but a strong presumption of 
 fact, which shifts the burden of proof. 
 
 [Ed. Note.— Cited in Wright v. Eaves, 10 
 Rich. Eq. 597. 
 
 For other cases, see Pavment, Cent. Dig. § 
 176; Dec. Dig. <©=6(3.] 
 
 [Payment <©=:366.] 
 
 In considering admissions, relied on to rebut 
 the presumption of payment, the same prin- 
 ciples are applicable which apply where admis- 
 sions are relied on to take a case out of the 
 statute of limitations. 
 
 [Ed. Note.— For other cases, see Payment, 
 Cent. Dig. S§ 176-188; Dec. Dig. <g=>66.] 
 
 [Evidence <®=>265.] 
 
 So long as the lapse of time is less than 
 twenty years, any admissions which oppugn the 
 inference of payment drawn from it, go to the 
 jury along with it, and all are weighed together 
 according to their natural force: but when 
 full twenty years have expired, an admission, 
 that the payment has not in fact been made, 
 cannot, of itself, destroy the effect of the pre- 
 sumption. 
 
 [Ed. Note.— Cited in Dickson v. Gourdin, 26 
 S. C. 397, 2 S. E. 303. 
 
 For other cases, see Evidence, Cent. Dig. § 
 1032; Dec. Dig. (©=:3265.] 
 
 [Infants <©=»105.] 
 
 In estimating the time sufficient to raise the 
 presumption that a judgment has been paid, the 
 period during which the plaintiff was under dis- 
 ability from infancy must be deducted: Sem- 
 ble {b) 
 
 [Ed. Note. — For other cases, see Infants, Cent. 
 Dig. S 322; Dec. Dig. <S=5l05.1 
 
 [Infants <®=>105.] 
 
 A judgment iu partition vesting the land in 
 W. A. on his paying C. A. a sum of money in 
 lieu of her share, held, as against a purchaser 
 of the laud from W. A., not to be satisfied, al- 
 though twenty-four years had elapsed siu'^'e the 
 judgment was rendered, — it appearing that C. A. 
 was an infant, about two years old, when the 
 judgment was rendered, and W. A. having ad- 
 mitted the non-payment of the money. 
 
 [Ed. Note.— Cited in Burris v. Gooch, 5 Rich. 
 6; Smith v. Tanner, 32 S. C. 264, 10 S. E. 
 1008. 
 
 For other cases, see Infants, Cent. Dig. § 
 322; Dec. Dig. <S==>105.] 
 
 [Limitation of Actions <g;=::>72.] 
 
 In 1833, defendant purchased land on which 
 plaintitt, then an infant, had a lieu under a 
 judgment iu partition: in October, 1845^ plain- 
 tiff arrived at age, and in September, 18.j0, filed 
 her bill against defendant, held, that defendant 
 was not protected by the statute of limitations. 
 [Ed. Note. — For other cases, see Limitation of 
 Actions, Cent. Dig. § 392; Dec. Dig. <S=»72.] 
 
 [Evidence <©==5l78.] 
 
 [It was permissible to prove the contents 
 of a record of proceedings and judgment in 
 partition by the testimony of the commission- 
 ers appointed in such proceedings, where it was 
 shown that no recoi'd could be found, though 
 diligent search had been made therefor.] 
 
 [Ed. Note. — For other cases, see Evidence, 
 Cent. Dig. § 583; Dec. Dig. <s=>178.] 
 
 [Evidence <©=>S2.] 
 
 [Cited in Sasportas v. De La Motta, 10 
 Rich. Eq. 52; Boyce v. Lake, 17 S. C. 488, 
 43 Am. Rep. 618; Gardner v. Cheatham, in 
 concurring opinion, 37 S. C. SO, 16 S. E. 368, 
 to the point that an order of a court of com- 
 petent jurisdicti(m is presumptive of the regu- 
 larity of proceedings leading up thereto.] 
 
 [Ed. Note. — For other cases, see Evidence, 
 Cent. Dig. § 104 ; Dec. Dig. <S=>82.] 
 
 [This case is also cited in Roberts v. Smith, 21 
 S. C. 456, and distinguished therefrom, and 
 in Clark v. Smith, 13 S. C. 600, as to no- 
 tice of statutory mortgages.] 
 
 (fl) Burris v. Gooch, 5 Rich. 1. 
 
 (l,) Vide Lamb v. Crosland, 4 Rich. 536. 
 
 62 
 
 ^=:3For other cases see same topic and KICY-N UMBER in all Key-Numbered Digests and Indexes
 
 McQueen v. fletcher 
 
 *155 
 
 Hcfore .T«)hnst<»n, Cli.. at Marlboroujjh. Feb- 
 ru:iiy. INHI. 
 
 This case will lie suHicifiitly uiidtTstood 
 liom tlii^ lU'cn-e of the circuit ("hiinccllor and 
 tlu" (ipiiiion di'livcn'd in the ("oint of Ainteals. 
 Tlu' circuit decree is as follows: 
 ♦153 
 
 ♦Johnston, Ch. I do not deem it necessary 
 to state every i)articular point or fact hrou«lit 
 to my view at the hearing; I shall state only 
 the substance, leavinj; the rest to ai^iear in 
 the iileadinL;s and notes. 
 
 The case is shortly this: 
 
 The plain! itr. Mrs. Caroline McQueen, Is 
 one of the dau;.'hters of Shockley Adams, late 
 of Marll)orou;:h district, who died intestate, 
 the lOlh of October, 1S24. At his (i«'ath, he 
 left as his distriimtees, his wife. Isabella, 
 and ei;.'ht children, of whom it is necessary 
 to mention only three, namely: Wm. L. 
 Adams, (who became his administrator.) Har- 
 ris U. Adams and Mrs. McQueen. 
 
 The intestate was. at liis death, the owner, 
 in fee simple, of three tracts of land, lyinj? 
 in MarllM»rou),'h. and which are the subjects 
 of liti;:ation in this case, viz: 
 
 1. The jilantation denominated in the 
 pleading's the Home Tract, or House IMace, 
 containiiij: two hundred acres, more or less. 
 This tract, the widow, who was in possession 
 of it at the time, and had been from 18L'5, 
 sold to the defendant. Bethea. in 1S.S6; and 
 he took possession, which he still retains. 
 
 2. The tract called the Mill Tract, of six 
 hundred and two acres, more or less. This 
 tract was levied on by the sheriff as the 
 jiroperty of Wm. L. Adams, and sold to the 
 defendant, Fletcher, the liOtli of December, 
 IS'W, at the price of three thousand dollars. 
 
 3. A tract called Easterlinj?, containing 
 three hundred acres, more or less. This 
 tract was levied on and sold as the property 
 of Harris K. Adams, and l>ou^'ht by the de- 
 fendant, Joel I^asterlinj;. for six hundred 
 dollars, to whom the sheriff conveyed it the 
 4th of March, is:'.);. 
 
 It is admitted, that by tliese purchases, the 
 defendants ac<piired not only the title of 
 those from whom they l)ouf;ht. but of all 
 the other distril)utees of the intestate, except 
 Mrs. McQueen. The contest is as to her rights 
 in the land. The plaintiffs contend that she 
 is still tMititled to a distributive share of the 
 l;ui(ls. and to a partition of tbeiii with the 
 
 ♦154 
 defendants, respectively: and for this ♦pur- 
 pose the bill (which was liled the 14th of 
 September, is.'id.i is brought. The defend- 
 ants, on the coidrary. maintain that the wid- 
 ow and the two .sons, whose title they twik, 
 held and were entitled, at. the time of their 
 sales, to a full and complete title, in exclu- 
 sion of Mrs. Mct,>u«'en. and not suii.ject to a 
 partition with lier. 
 
 The (juestion in this <ase is. whether the 
 plaintiffs or the defendants are correct iu the 
 positions taken by them. 
 
 Mrs. McQueen was once entitled to a dis- 
 tributive share of the.se lands, and if this 
 right has been defeated, or she has been sat- 
 islied for it, it is incumlu-nt on the defend- 
 ants to shew how this has been effected. 
 Being sensible of this, they have undertaken 
 to nmke tlie shewing required. 
 
 They allege, that as far back as iSliG. a 
 pnx-eeding in [lartition was had Lii the Court 
 of Common I'leas, by which the lands bought 
 by them from tlie widow and the two sons. 
 were allotted to tho.se parties, respectively, 
 who took possession luider the judgment in 
 partition and held the property as their own. 
 and it was .so bought, and has been so held 
 by the defendants. 
 
 The plaintiffs reply to this, that if there 
 was any such proceeding. — which they do not 
 adndt,— Mrs. McQueen was no party to it, ana 
 was not Itound by it: and they demand the 
 production of the record. 
 
 Again. They insist she was entitled to 
 have either a portion of^ the land. <)r comj)en- 
 sation. That no portion was ever assigned 
 to or received by her; and \^f any comitensa- 
 tion was ever adjudgeil to her. it has never 
 been paid. 
 
 Thirdly. They say that Mr.s. McQueen was 
 a minor until l.S4."». (and this is not deided in 
 the answer, though allege<l in the bilhi — and 
 that, therefore, no presumption can arise 
 against her, of accpiiescence, or forfeiture of 
 right, by reason of adverse pos.session, or 
 any other transaction by which she may V)e 
 supposed to have attirmed the supi»osed par- 
 tition. It was also proved that she intermar- 
 ried with her co-plaintiff as far back as l!sJS 
 or 1841, during her nnnority. 
 ♦155 
 ♦No record in partition has l)een produced: 
 — and yet I think there is evidence to es- 
 tablish a partition, and that, uuiler the nec- 
 essary presumptions of law. it nuist be held 
 conclusive of the rights claimed in the pres- 
 ent bill. 
 
 The following extract from the pro<eedii;gs 
 of Spring term. ISi'ti. was given in evidence: 
 
 "Isabella Adams and others.^ 
 
 vs. [ Writ in parti- 
 
 W. L. Adams, adm'r. of " tion. 
 
 Shockley Adams, J 
 
 The conunissioners appointed to <livide the 
 real and personal estate in the writ mention- 
 ed, having nnide their return, certifying a 
 partition of said estate: — on motion of Mr. 
 F.rvin, attorney for plaintiffs, ordered, that 
 the said return be confirmed: and that they 
 have leave to enter up judgment thereon." 
 
 It is true, there is no record of any other 
 part of the lU'oceeding produci'd: and if we 
 are to know what the proceeding was, — 
 what iiartition was nnide, and its terms, — 
 who were parties, — and who are bound. — we 
 nuist learn it from parol or depend upon 
 legal presumptions and inferences to he 
 drawn from the anticiuity of the proceeding. 
 
 63
 
 ^55 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 This is all very lame. It exhibits a 
 wretched state of neglect; and it exhibits to 
 what a most shocking state of precarious- 
 ness the rights of citizens, that ought to be 
 strictly guarded by pul)lic oflicers, may be 
 reduced by the carelessness and criminal in- 
 dolence of those officers. But, still, I think 
 the rights of other citizens are equally to be 
 regarded; and that their security demands, 
 that such inferences should be drawn, from 
 what little of the record is preserved, as are 
 material and reasonable. 
 
 It has been shown that Mr. Ervin, the at- 
 torney in the record, is dead ; that his office 
 and papers have been searched, and no other 
 traces of the proceeding found ; that the 
 clerk's office at the time, and for years be- 
 fore and after, was negligently kept ; that 
 Wm. L. Adams, in whose hands some of the 
 papers might have been, in order to accounts 
 and settlements in the ordinary's office, is 
 out of the State; and that such papers as he 
 
 *156 
 left behind him *have been searched without 
 effect. The present clerk has made diligent 
 .search, and can find no further fragments 
 of the record. The ordinary's office has been 
 seached in vain. 
 
 That there was a writ of partition, and 
 that it was returned to the Court, and an 
 order granted upon the reading and inspec- 
 tion of the return, we cannot doubt: for that 
 order is produced. That every thing was 
 regular up to that time, we are bound to pre- 
 sume. The record being lost, we must re- 
 sort to secondary proof of its purport and 
 contents. One of the commissioners was 
 sworn, and proved that a writ Issued, and 
 that he assisted in executing it. Mr. McCol- 
 lum testified that the Home Tract was al- 
 lotted to the widow at .$.3,.300. He does not 
 remember whether a contribution was requir- 
 ed of her; but, from other evidence showing 
 the value of the real and personal estate, the 
 subject of division, it would appear that the 
 tract assigned was less than one-third part 
 of the estate. He says the 300 acre tract 
 (Easterling) was assigned to Harris R. 
 Adams; and he was to contribute something 
 under .$1000 for equality of partition. That 
 the Mill Tract was assigned to Wm. L. 
 Adams at about $4500; but what he was to 
 contribute witness does not remember. The 
 return specified the sums to be paid by the 
 different parties for equality of partition. 
 
 It appears, also, that Mrs. McQueen receiv- 
 ed certain negroes in the division, which are 
 now in her husband's possession ; and that 
 in. an account stated before the ordinary, by 
 Wm. L. Adams, the administrator, with Dr. 
 Malloy, who either was or assumed to act as 
 her r -ardian, the administrator was charged 
 with the balance due her of the whole real 
 and personal e.state, after deducting the spe- 
 cific property which she received, and the 
 payments that had been made; and the ordi- 
 nary gave a decree for the balance, (about 
 
 64 
 
 $1000). For this balance, suit was brought 
 by her and her husband, after her marriage. 
 The suit was against a surety to the admin- 
 istration, who showed on the trial that in 
 the sum of $1000, sued for, was included 
 $687.05 for her share of the realty, which 
 was accordingly deducted from the surety's 
 liability. This was shown by the testimony 
 
 *157 
 of Gunter, a husband of one of in*testate's 
 daughters. On that occasion, he also testi- 
 fied to the division, as proved by McCoUum. 
 
 Now, under this evidence, (throwing out 
 that of Wm. L. Adams,) would it be reason- 
 able to say there was no partition, or that 
 the lands were not assigned as the defend- 
 ants insist they were? 
 
 The fact of partition is still further con- 
 firmed by the pregnant circumstance, that, 
 though the parties to whom the property was 
 allotted were in possession, as of their own 
 property, from 1826 until the day of their 
 alienations, no application was made by any 
 one of the numerous distributees for another 
 division; and though the widow alienated 
 her land in 1833, and those of the two sons 
 were publicly sold as their property in 1836, 
 no question was raised by any distributee as 
 to the exclusiveness of their titles, 'till the 
 filing of this bill in 1850. 
 
 Was Mrs. McQueen a party? Am I not 
 bound to presume that the Court did its 
 duty, and that it would not have authorized 
 the entering up of judgment Avithout seeing 
 that all proper parties were before it? Is 
 not the presumption of her participation in 
 the proceeding confirmed by the reception 
 and retention of the negroes allotted to her 
 in the division, and by the accounting before 
 the ordinary, especially as suit was brought 
 by her on that accounting? 
 
 Assuming that there was a partition,-^ 
 that concludes her right to have another par- 
 tition. Her right in the land is gone, and is 
 vested in the parties to whom it was assign- 
 ed. Transit in rem judicatam; and when 
 a judgment has been rendered upon any 
 right or claim, that claim cannot again be 
 stirred or litigated. The remedy is by en- 
 forcing the judgment. This is very clear. 
 If by the partition made, any sum was de- 
 creed to Mrs. McQueen for equality of par- 
 tition, that is another matter. Her right was 
 in that case reduced to a mere money claim. 
 
 If she claims for money due her, the bur- 
 den is upon her to shew the decree for it, and 
 the amount decreed. I am not sure that the 
 evidence is sufficiently explicit as to this 
 point. 
 
 Suppose it to be so. That judgment should 
 *158 
 be regarded as *having been entered up in 
 1820 ; and the legal presunq)tion of satisfac- 
 tion arose before 1850, when her bill was 
 filed. I am not aware of any authority or 
 principle by which the vigor of this presump-
 
 McCiLKKX V. FLKTClIEll 
 
 '160 
 
 tion would he iniiiaiied, or its curivncy sus- 
 pended liy iier iiifaiity or covertiiie. 
 
 Hut tlie statute of 17!U ^ives a lieu for the 
 l)ur<hase money of an intestate's land sold 
 for partition : and l)y a fair construction. I 
 suiipose. such lands are liahle. also. f«)r sums 
 necessary ti» produce etpiallty of partition; 
 ;ind 1 may he told. that, independently of tlie 
 .iu<l;;ment In partition in tlds case, tiiis lit'u 
 still suhsists: — hut 1 hold that the same lai)se 
 of time whiili would presume satisfaction of 
 a judgment, a mortt,'aj;t'. or specialty deht, 
 will raise a similar presumption under a stat- 
 utory litMi. A period of twenty-four years 
 had elapsed hefore the hill was tiled: and 
 the claim is stale. 
 
 It is ordered that the hill he disnussed. 
 
 The complainants apjiealed, on the follow- 
 inir frrounds: 
 
 1. IVcausc it did not siilliciciitly ajipear 
 from the ca.se made hy the pleadinu's and evi- 
 dence, that any partition of tlic lands named 
 in the l)ill. hiiidin^ ujion raroline Mct^ueeu, 
 the comiilainant. and divestin;; her tiHe in 
 sai<l lands, was made in iSL'f;. as his Honor 
 has decreed. 
 
 2. Because even if tliere had heen a valid 
 partition of the said lands made in l.Slifi, yet 
 as it clearly appeared that no land was al- 
 lotted to Caroline, hut in lieu thereof a sum 
 of money was ordered to he paid her, and 
 it clearly appeared that the said sum of 
 money was never i)aid. hut is still due : his 
 Honor should not have dismissed complaiU' 
 ant's hill. Imt should have ordered a refer- 
 ence ti> the conunissioner. to ascertain and re- 
 port the sum actually tluc to the said Caro- 
 line, and should have suhjected said lands 
 to the payment of said sum of money. 
 
 3. liecause his Honor was in error in pre- 
 suminj; satisfaction and payment of the sup- 
 posed conunon pleas judjiment of 1X20. in fa- 
 vor of the complainant. Caroline, from the 
 
 *159 
 lapse of time since *it was rendered, al- 
 thou^'h the said Caroline was an infant for 
 nearly the whole of that time. 
 
 Thornwell. for appellants. 
 . contra. 
 
 The opinion of the Court was dtdivered by 
 
 I)rXI\'I.\. Ch. This Court is entirely sat- 
 isfied with the judgment of the Chancellor in 
 relation to the proceedin^rs in partition. The 
 piirol testimony was properly received un- 
 der the circumstances, and very fully estab- 
 lished the existence of the record. Snuth v. 
 Smith. Kice. '2:V2. is an authority for tlie ad- 
 nussihility of the evidence, and for settini; 
 up a judtrnieiit in jtartition on less satisfac- 
 tory proof. 
 
 The A<t of 17!H. (.") .Stat. 1(;4.) provides 
 that, where the land cannot he fairly and 
 e(pially divided, the conunissioners shall 
 make a special return, certifyin;; to the 
 Court their opinion, whether it will be more 
 4 Ricu.Kq.— 5 
 
 I for the l)enefit of the parties to deliver over 
 to one or more of them the property which 
 cainiot le fairly tllvided. iu>on the payuu'ut 
 of a Sinn, of money to Ik« asses.sed hy the 
 conunissioners. or to .sell the .same at iiuMi'- 
 auction; and, if the Court shall he of opin- 
 ion that it would l»e for the Iteuetit of the 
 parties, tliat the same shall he vested in one 
 pers(»n or more persons entitled to a portion 
 of the same, on the payment of a sum of 
 money, th««y .^hall deterndne acciM-dini,'ly ; 
 and the said jiersou or persons, on the pay- 
 ment of the consideration money, shall he 
 vested with the estate so adjudired to them, 
 as fully and absolutely as the ajice.stor was 
 vested. Hut. if it shall appear to the Court 
 to be more for the interest (»f the jiarties 
 that the same slutuld lie .sold, they shall 
 direct a sale on such credit as tliey shall 
 deem rlsht : and the property so sold shall 
 stand pled«»>d for the payment of the pur- 
 chase money. In this ease. thi> intestate left 
 a widow and i'i;iht children. It aitiiear.s, 
 that at the time of the partition in IsiN;. 
 the comitlainant. Caroline, was about two 
 years of a^'e, and was represented by her 
 brother and guardian ad litem. William I.. 
 Adams. The testimony shows that the eom- 
 
 *160 
 
 missioners executed *the writ by .setting olf 
 the three tracts of land to three of the par- 
 ties in interest, to wit. tlie widow and two 
 of the .sons. The evidence, both of William 
 L. Adams liiniself, and of John McCollum, 
 one of the commissioners, proves that Wil- 
 liam L. Adams, who took the tract valued 
 at .$4n00, was to pay to his sister, the com- 
 plainant, tlie sum assessed to her in lieu of 
 her interest in the land. The other evidence 
 shews, with reasonable certainty, that this 
 sum, after deductini: her share of the costs, 
 was six hundred and eijihty-seven dollars 
 and live cents (.^tJST.O,")). Hy the order of 
 the Court of Common Pleas, at Si)ring term. 
 1S2(;, this return of the commissioners was 
 made the judj;ment of the Court. On the 
 part of the complainants, it is insisted, that 
 by the terms of the Act, no title vested in 
 William L. Adams, until payment of the 
 consideration money. While the defendants 
 urge, and .so the Chancellor held, that, by 
 the judgment in partition, the right of the 
 minor in the land was gone, and that her 
 only renu'dy was by enforcing the judg- 
 ment, and that although the statute gave a 
 lien upon the land, both the judgment and 
 statutory lien must be presiuned to be sat- 
 istied from the lapse of time. It is not Im- 
 portant in this case to determine whether 
 the judgment transferred the title, irrespec- 
 tive of the payment of the purclia.se nir)ney, 
 and established a lien on the premises, or 
 whether the title was only to be absolute on 
 compliance with the condition. If the Court 
 is sjitislied. whether by presumption or posi- 
 tive proof, that the purchase money wa.s 
 paid, the title in William L. Adams, by the 
 
 65
 
 »160 
 
 4 RICHARDSONS EQUITY REPORTS 
 
 terms of the law, was as full and absolute 
 as his father's had been. And so, if the 
 judgment transferred the title and created 
 a lien, and yet the Court is satisfied, by 
 presumption from lapse of time or other- 
 wise, that the debt has been paid, the judg- 
 ment is gone, and the lien, which is merely 
 an incident, has ceased to exist. 
 
 It Is admitted, that there is no positive 
 proof of payment to the complainant, (Caro- 
 line,) or to any other person acting for her, 
 of the sum assessed to her and adjudged to 
 be paid to her by William L, Adams. But it is 
 said that more than twenty years have elaps- 
 ed since the entry of the judgment, and that, 
 
 *161 
 
 after this *lapse of time, it must be pre- 
 sumed to be satisfied. The Court of law had 
 occasion to consider this doctrine in the re- 
 cent case of Stover v. Duren, 3 Strob. 448 
 [51 Am. Dec. 634]. It is there said, "The 
 presumption of payment, which arises after 
 the lapse of twenty years, is not a presump- 
 tion of law, but is a presumption of fact, 
 recognized by law, from which a conclusion 
 ought to be deduced by a jury. It is, how- 
 ever, one of those strong presumptions which 
 shift the burden of proof," &c. In that case 
 some twenty-six years had elapsed since the 
 entry of the judgment, and the presiding 
 judge had held that, after the lapse of twen- 
 ty years, mere acknowledgments were in- 
 sufficient to rebut the presumption ; that 
 if there had been no payment of interest, 
 no promise to pay, no other sufficient rebut- 
 ting circumstance, then an acknowledgment, 
 in order to suffice for rebutting the pre- 
 sumption, should be a distinct admission of 
 the subsisting legal obligation of the debt, 
 unaccompanied by any conduct or expres- 
 sions indicative of an unwillingness to pay. 
 The Court saj^ "We perceive no objection to 
 the rule thus stated to the jury. The pre- 
 sumption is no legal bar, but it was original- 
 ly admitted in analogy to the statute of lim- 
 itations, and in considering admissions which 
 rebut it, the same principles are applicable 
 as in considering admissions which take 
 the case out of the statute of limitations." 
 So long as the lapse of time is less than 
 twenty years, any admissions which oppugn 
 the inference of payment drawn from it, 
 go to the jury along with it, and all are 
 weighed together according to their natural 
 force. But when full twenty years have 
 expired, an admission that the payment has 
 not in fact been made, cannot, of itself, de- 
 stroy the effect of the presumption. Upon a 
 similar analogy it has been held in this 
 Court, that the period during v,'hich a plain- 
 tiff was under disability from non-age, shall 
 be deducted in estimating the lapse of time 
 sufficient to create a presumption of ouster, 
 &c. In Gray v. Givens, 2 Hill Eq. 514, it is 
 said, the time during which the party to be 
 affected was under disability must be de- 
 ducted in computing the lapse of time, in 
 66 
 
 analogy to the statute of limitations — other- 
 wise, as Chancellor Harper hypothetically 
 
 *162 
 stated in that case, and *might very well 
 have happened in this, a party may be 
 barred before he had an opportunity of ei- 
 ther asserting or knowing his rights. A 
 judgment entered in favor of an infant 
 twelve months old, and represented only by 
 a guardian ad litem, would be presumed to 
 be paid by lapse of time, before she was of 
 age or had any authority to receive the 
 money, or could execute a valid acquittance. 
 But apart from this. It has been said 
 that the complainant, (Mrs. McQueen,) was 
 an infant about two years old at the time of 
 the partition in 1S2G. She became of age 
 in October, 1845. William L. Adams was 
 also administrator of the estate of his fa- 
 ther (the intestate.) On the 2d December, 
 1834, a settlement took place before the or- 
 dinary between William L. Adams and John 
 Malloy styling himself guardian of Caroline 
 F. Adams, (the complainant,) on account of 
 her share of the real and personal estate of 
 her father to which she was entitled. After 
 deducting payments a balance was admitted 
 to be due, and a decree entered by the ordi- 
 nary for $1,069.50. In September, 1847, suit 
 was instituted by the complainants, in the 
 name of the ordinary, against the surety of 
 William L. Adams as administrator, on the 
 decree made in December, 1834. A verdict 
 was obtained against the surety of the ad- 
 ministrator deducting the value of the com- 
 plainant's intex'est in the real estate which, 
 (as proved by the defendant's solicitor in 
 this case,) was shown on the trial to be 
 .$687.05. It was proved at the hearing that 
 William L. Adams left the State in Febru- 
 ary, 1836, and was insolvent at that time. 
 He was examined by commission. Among 
 other things he says that, in the partition 
 of his father's estate, no land was allotted 
 to the complainant ; that the witness acted 
 as her guardian ad litem in the proceedings ; 
 "that a sum of money was ordered to be 
 paid to her in lieu of the land ; does not 
 recollect what her portion came to ; it was 
 to have been paid by witness ; does not 
 recollect how much was paid ; it has all 
 been paid except about eight hundred dol- 
 lars," &c. The complainants reside in Rich- 
 mond county, North Carolina. Failing to 
 
 *163 
 recover under the suit *instituted in Septem- 
 ber, 1847, from the surety of the administra- 
 tor, the sum due for her share of her fa- 
 ther's real estate, this bill was filed on the 
 14th September, 1850. The principal prayer 
 is for partition, complainants averring that 
 none was made. But they also charge that, 
 if partition was made, they received no land, 
 and have received no compensation in lieu 
 thereof, and they pray for general relief. 
 The Court is of opinion that the circum- 
 stances proved, as well as the admissions of
 
 ZIMMERMAX v. HARMON" 
 
 4G.- 
 
 tlie delttnr. fully rolnit the iircsuuiption aris- 
 froin the lapse of twenty years. In 1S;}4, 
 eight years after the entry of the ju«l«inent, 
 and less than sixteen years l)efore this hill 
 was filed, the debtor admitted the existence 
 of his indebtedness, and the ordinary de- 
 creed a sum to he due by him, including 
 the sum due for the complainant's share of 
 the real estate. There is no proof tliat Dr. 
 Malloy was the guardian of the comiilainant, 
 although lie assumed t(t aet as such. Rut 
 still less is tlu-re jiroof of any payment to 
 him of this sum; and up to the time of his 
 examination the debtor admits about eight 
 hundred dollars to have been unpaid wlien 
 he left the State, insolvent, in ls.'{(j. and that 
 he has not since paid any thing on account 
 of It. If this wiM-e a proceeding to recover 
 from William I.. Ad.ims the amount dtie on 
 the judgment, it would seem very clear that 
 the presumption of payment, arising from 
 the lapse of time, is fully rel-utted, and the 
 Hen being coexistent with the debt, this 
 would lie conclusive on the defendant, un- 
 less, as he suitmits. he is protwted by an 
 adverse possession of ten years. In is;}.'', he 
 purchased the land at sheriff's sales, under 
 an execution against William I.. Adams; 
 and he insists, on the authority of McKaa 
 v. Smith. 2 P.ay, IIV^. that he is entitled to 
 protection by a possession of ten years after 
 the marriage of the complainant. In Mc- 
 Raa V. Smith, the defendaiit was a pur- 
 chaser from the defendant in the judgment, 
 and his possession was held to be adver.se 
 to all the world, except as the Court say, 
 where there are infants, femes covert or 
 persons beyond the seas. The lien on which 
 the complainants here insist, is a statutory 
 mortgage of which the imrcliaser would have 
 *164 
 
 notice in examining *his title. In Thayer 
 V. Cramer. 1 McC. Etj. :;<).-), it was held that 
 the mortgagor of real estate was a trustee 
 for the mortgagee, and that the purchaser 
 from him was in no better situation, the 
 mortgage being recorded, and could not 
 avail himself of the statute of limitations. 
 I should hesitate to apply the doctrine of 
 McRaa v. Smith to the case of a purchaser 
 from the mortgagee with notice of the mort- 
 gage. Hut it is unnecessary to express any 
 opinion upon such case. The statute ex- 
 lu-essly saves the rights of infants. In is;',:}, 
 when the defendant purchased. Caroline F. 
 Adams w;is an infant mortgagee, about nine 
 years of age, and did not attain majority 
 until October, lS4.'j, less than live years be- 
 fore tiling the bill. It is said, however, that, 
 in the m(>antime, to wit, at some iteriod be- 
 tween ls."..s and 1841, she had bt'come a 
 married woman, and that, from this time, 
 the possession of the defendant was adver.se. 
 Without di.scussing this point it is only nec- 
 essary to say that, in September. 1S4(). ten 
 years befc>re the bill tiled, the complainant 
 
 was not sixteen years of age, and there is 
 no proof that slie was then married. 
 
 Tins Court is of opinion that the com- 
 plainants have a valid subsisting lien on the 
 land .set oflF to William L. Adams by the 
 judgment in partition and subsetiuently pur- 
 chased liy the defendant, Joshua Fletcher. 
 
 It is therefore ordered and decreed, that 
 it be referred to the commission«»r for Marl- 
 iiorough District to a.se«'rtain and report tiie 
 amount due to the complainants, calculating 
 interest from tlu' rendition of the ju Igment 
 in partition, and that the same be paid out 
 of the jiroceeds of the land in the po.ssesslon 
 of the defeialant, Joshua Fletcher, upon con- 
 tirmafion of the said rep<»rt. and that the 
 costs, other than those of the defendants, 
 Rethea and Fasterling, be paid by the de- 
 fendant, Joshua Fletcher. 
 
 It is liujilly ordered and decreed, that so 
 nnich of tln> Chan<ellor's decree as dismisses 
 the bill in relation to the defendant.s. Rethea 
 and Fasterling. be alHrmed; in other re- 
 spects the same is reformed as is herein be- 
 fore declared. 
 
 JOII\.STi>\. DAR(;AX and WARDLAW. 
 CC, concurred. 
 Decree modified. 
 
 4 Rich. Eq. •165 
 
 *MAR(;aRFT ZIMMKRMAX. bv Xoxt Friond. 
 
 V. JUIIX 1'. lIAKMd.V and DAVID 
 
 ZIMMERMAX. 
 
 (Columbia. Nov. and Dec. Term. 1851.) 
 
 [Trusts C=>1!)8.] 
 
 If a trustee purcha.se the tru.st property in 
 send faith, and pay for it a full price, it Ls 
 iH'vcrthele.ss optional wtb the cestui (pie trust 
 whether the sale shall stand. A trustee so 
 purchasing a slave, and afterwards selling liim 
 at an advanced price, ordered to account for the 
 hire of the slave, and for the advanced price. 
 
 [Ed. Xote.— For other cases, see Trusts, Cent. 
 Dig. S l.'(54; Dec. Dig. <S=>1!)8.] 
 
 Before \\ardlaw, J., at Spartaniturg, June, 
 1851. 
 
 Wardlaw. Ch. David Zimmerman, then of 
 Orangeburg district, and husband of the plain- 
 tiff, in February, is;;;), conveyed by deed to 
 Conrad Kennerly, three slaves and their fu- 
 ture increase, namely: Henry, about 12 years 
 old; Jenny, about 10 years old; and Lewis, 
 about S years old: "in trust for the S(de and 
 .sei)arate use, benefit and behoof of my (his) 
 wife, Margaret, notwithstanding her c<iver- 
 ture, for and during the term of her natural 
 life, and after her death, then for the use. 
 benefit and behoof of her lawful issue, as 
 well that she now has. as those she may here- 
 after have, sliare and share alike, or of the 
 survivors or survivor of them." After the 
 execution of this deed, D. Zimmerman, with 
 his family and slaves, removed to Spartan- 
 burg district, and he there purchased a tract 
 
 ©=»For other cases see same topic aud KEY-NL.MUEU iu all Key-Numbered Digests aud Inde.xes 
 
 C7
 
 465 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 of land from one Ralph Smith, and mort- 
 gaged the land to secure the purchase money. 
 Smith afterwards obtained judgment at law 
 against Zimmerman, for the price of the 
 land, and in execution of his judgment levied 
 on Lewis, one of the slaves named in the 
 deed. Defendant, Harmon, was substituted 
 as trustee, in said deed, in place of Kenner- 
 ly, by certain proceedings in equity, in Spar- 
 tanburg district, at June Term, 184.3. Har- 
 mon, Zimmerman and wife, September 4, 
 1843, filed their bill against Smith, to restrain 
 him from enforcing his judgment against the 
 trust estate ; and at June Term, 1844, it was 
 decreed, that such injunction should be ex- 
 tended, until the mortgaged land should be 
 sold, and that if the proceeds of sale were 
 insufficient to pay his debt, Smith might pro- 
 ceed for the balance on his levy. The land 
 
 *166 
 
 was accordingly sold, but did not bring *mon- 
 ey enough liy about .$400 to satisfy Smith's 
 judgment. Thereupon it was agreed between 
 Harmon and Zimmerman, that the former 
 should t&ke the slave, Henry, at the price 
 of $400, and pay that sum to Smith; this 
 was done, and a bill of sale executed from 
 Zimmerman to Harmon, July 26, 1844. Har- 
 mon retained the slave Henry in his posses- 
 sion until December, 1850, when he sold him 
 to one who has removed him from the State, 
 for the price of -$700. The value of Henry's 
 services, while in Harmon's possession, was 
 about double the interest on the money ad- 
 vanced by Harmon. 
 
 Margaret Zinnuerman, who sues in this be- 
 half by her next friend, Ransom 'L. Kirby, 
 files this bill to compel her trustee, Harmon, 
 to account for the profit he has made on the 
 sale of Henry, and for the hire and wages of 
 the slave ; and for tlie substitution of Kirby, 
 as her trustee. The bill alleges that the slave 
 was not sold to Harmon, but was delivered to 
 him as a pledge to secure the repayment of 
 the $400 advanced to Smith. 
 
 The answer of D. Zimmerman, is a mere 
 echo of the bill. The answer of Harmon in- 
 sists, that he purchased the slave in good 
 faith, for the preservation of the rest of the 
 trust estate, at a full price ; and that as he 
 ran all the risks from the death of the slave 
 and other casualties, he should be allowed 
 the advantages which have accrued from his 
 bargain. The answer assents to the change 
 of trustee. 
 
 My judgment, from the evidence, is, that 
 Harmon took the slave as a purchase, and 
 not as a pledge, — that he paid a full price 
 for him, — and that his conduct in the trans- 
 action was without intentional bad faith. 
 
 Nevertheless, according to the rules of 
 Courts of Equity, founded on general policy, 
 and so prescribed to avoid the necessity of 
 scrutiny into the fairness of every particular 
 ti'ansaction of the kind, the purchase of this 
 slave, by the trustee, cannot stand. If a 
 
 68 
 
 trustee, strictly honest, buy for himself the 
 trust property from his beneficiary, and then 
 sell it for more money, the character of trus- 
 tee remains fixed upon him, and he must ac- 
 
 *167 
 count for the pro*fits of his management of 
 the property. It is not indispensable, in oi'- 
 der to avoid such purchase, that advantage 
 to the trustee shall be proved. The infirmity 
 of the contract grows out of the fiduciary re- 
 lation between the parties. To guard against 
 the hazard of abuse, and to keep the trustee 
 from temptation, the rule allows the bene- 
 ficiary, at his own option, to set aside the 
 sale, whether made bona fide or not: "So a 
 trustee will not be permitted to obtain any 
 profit or advantage to himself in managing 
 the concerns of the cestui que trust, but 
 whatever benefits or profits are obtained, will 
 belong exclusively to the cestui que trust. 
 In short, it may be laid down as a general 
 rule, that a trustee is bound not to do any- 
 thing which can place him in a position in- 
 consistent with the interests of the trust, or 
 which has a tendency to interfere with the 
 discharge of his duty." Story Eq. § 321, .322, 
 So that if the plaintiff here had been sui 
 juris, and had, herself, sold tbe slave to her 
 trustee, it would be at her option whether 
 the sale should stand ; and her title to re- 
 lief is strengthened by the considerations, 
 that she was under the disability of cover- 
 ture, and that the sale was effected by the 
 confederacy of her husband and trustee. 
 
 It is ordered and decreed, that the defend- 
 ant, Harmon, account for the hire of the 
 slave Henry, from July 26, 1844, to Decem- 
 ber, 1850: and for the sum of $700, with in- 
 terest from the latter date, and that he be 
 allowed credit for $400, with interest from 
 the former date. 
 
 It is also ordered, that it be referred to the 
 commissioner of this Court, to take the ac- 
 count ; and to enquire and repoi't as to the 
 fitness of the trustee proposed to be substi- 
 tuted, and as to the amount and nature of 
 security that should be given. 
 
 Also ordered, that defendant, Harmon, pay 
 the costs of this suit, except the costs of 
 David Zimmerman, which must be paid by 
 himself, and the costs of substitution of trus- 
 tee, which must be paid from the trust es- 
 tate. 
 
 The defendant, J. P. Harmon, appealed and 
 moved this Court to reverse the circuit de- 
 cree, on the grounds: 
 
 *168 
 
 *1. Because, from the case made, the deed 
 to Kennerly was void as to the creditors of 
 D. Zinnuerman, who sold the boy in dispute 
 to Harmon at a full, fair price, to save the 
 remainder of the trust proi)erty. 
 
 2. Because, as the trust property was sub- 
 ject to be sold by the sheriff at a sacrifice, 
 the purchase by defendant was a benefit to 
 the trust estate, and ought to be sustained.
 
 GLENN V. CALDWKLL, 
 
 '170 
 
 8. Bt'causo flir (k'<Tee makes tlu' trustee 
 pay costs out <>f his own funds, iKitwithstaiiil- 
 inj? it is most t-vident that the trust estate is 
 greatly benefitted liy the course he pursued, 
 and that lie acted in ;:ood faith. 
 
 4. liinanse the decree is not sustained by 
 hiw or the justice and equity of tlie case, 
 
 liobo, for appellant. 
 . contra. 
 
 I'KIJ ("I'KIAM. This Court concurs in the 
 decree of tlie Chancellor: \vhi«li is liereby 
 affirmed, and the appeal di.smisse<l. 
 
 .TOII.NSTOX. IHWKIN. DAUGAxN and 
 WAUDI^VW, CC. concurring. 
 Appeal dismissed. 
 
 4 Rich. Eq. 168 
 
 PATSKY CLKSS v. I). CALDWRLL and 
 
 ()th«'rs. 
 
 (Coluiiiliia. Ni.v. and Hcc Term. 1851.) 
 
 [Bonds <©=»11!>: lAitiitntioii of Actionn <C=5-2.1 
 J. CJ. and fi)urtoen other pt'rsnns ix'ini; about 
 to form a cnniiiany for certain purposes. a^Meerl 
 to punhase from .1. (J., fur the use of the eoin- 
 pan.y, a tract of land, and they all. including 
 J. C;., executed to .1. G. their joint and several 
 instrument under seal, in the form of a single 
 bill, for .$1.">.(KMI. the amount <if liie purchase 
 money of the tia< t of I:iii<l: Hr'il. that. althoU!;h 
 J. (}., who united in himself the characters of 
 both obligor and obligee, could not maintain 
 an action at law upon the instrument, yet in 
 etiuity a suU could i)e maintained upon it: and 
 that, in e(iuit,v. it should he tre.-ited as a single 
 bill, against an afti.m on which the statute of 
 limitations c<udd not be pleaded in bar. 
 
 I Ed. Note.— Cited in Keith v. Executors of 
 Keith, 11 Ki<h. Eq. S.j. 
 
 Eor other cases, see Bonds, Cent. Dig. § 133; 
 Dec. Dig. <S=5liy; Limitation of Actions, Cent. 
 Dig. § 1(»;5 : 1 lec. Dig. <g=>2l.'.] 
 
 [Bonds (g=>r):i] 
 
 Held. also, that each party was liable for 
 the whiilc amount due, after deducting .7. (J.'s 
 aliquot portion: and, per Dargan and Ward- 
 
 *I69 
 law, CC that J. G. was *rateably liable, with 
 the solvent parties, for tlie proportions of such 
 as wore insolvent. 
 
 [Ed. Note. — Cited in Whitm«n v. Howden, 27 
 S. C. GO. 2 S. K. 080. 
 
 Ffir other ca.ses, see Bonds, Cent. Dig. §§ 
 57, 09; Dec. Dig. <©=>58.] 
 
 [Hills and Xotrs (©=>4.'ir).l 
 
 'I'lie company was afterwards incorporated, 
 — the obligors, (except one who, by general con- 
 sent, was released and audtlier substituted in 
 her place,) paid up the amounts of their sub- 
 scriptions to the company, and .1. (J. conveyed 
 the land to the coritoration, taking from it a 
 mortgage to secure the debt: /It Id, that the ob- 
 ligors were not thereby released. 
 
 [l']d. Note. — For other cases, see Bills and 
 Notes, Cent. Dig. § 124«; Dec. Dig. «g=9435.] 
 
 Before Dargau. Ch., at Union, .June, 1850. 
 
 Dargan, Ch. The tract of land on which 
 Glenn's Spring is situated, (u-iginally Ixdong- 
 ed to .John B. Glenn, coniidainant's intestate. 
 In 1«.'{7, a comr)any was formed for the pur- 
 
 chase of the land, and the erection of build- 
 ings and various other improvements at tlie 
 Spring, with the view of establishing it as a 
 watering place, and opening and keeiiing a 
 hotel for the entertainment «)f visitors. The 
 (•ompany consistexl of fifteen in'i-soiis. of 
 whom .Ifdin B. (Jlenn was one. Their names 
 are as follows: D. Caldwell. H. D. Vanh'W. 
 U. H. N«itt. L. N. Shelton, M. A. Moore. .1. 
 (J. Well.s, I{. Mo«)reman. .1. B. (ilenn, n. B. 
 Irvine, J. K. B. Sims, W. C. IVarson. Ge»). 
 Ashford. R. S. Brown, Ann Sims. J. Wiim- 
 smitli, B. Ligon ami William B. Thorn. o/) 
 These persons «ipened a book for subscription 
 of stock, in which each sul>scribed for stock 
 to the amount of one thousand dollars. The 
 stock b(M)k is without date: it contains a 
 brief statement of the purposes of the asso- 
 ciation, to which «'acli of tlie ineml>ers of the 
 company attixed his name, and opposite to the 
 name aiii)ended the amount of .stock for 
 which he sub.scribed. Alxnit this time, or per- 
 haps a little while before, John B. Glenn had 
 made a parol contract for the sale of tin- land 
 to this company, for the sum of tiftecn tliou- 
 .sand dollars. 
 
 With the view of securing to (ileiin the 
 payment of the purchase money, tlie company, 
 on the 15th Septendier, 18;!7. executed and 
 delivered to him an instrument, of wliich the 
 following is a lopy: "We. either of us, proni- 
 
 *170 
 ise to pay .Tohn B. Glenn the *sum of fifteen 
 thcaisand dollars, viz.: Three thousaiul dol- 
 lars on the first day of .lanuary next: three 
 thousand d(dlars. January. 1880: three thou- 
 sand dollars. January. 1840; three tlKuisand 
 dollars. January. 1841; three thousand dol- 
 lars, January. 1842, with interest annually 
 for value received, as witness our liands and 
 .seals, September 15, 1887." To this instru- 
 ment each memlK'r of the company, including 
 (Jlenn himself, afhxed his hand and seal, and 
 it was attested by John V. (Jleiin. On this in- 
 strument are indorsed credits, as follows: 
 ."f2,800 received from M. A. Moore, treasurer, 
 the 1st January. ls;i8; .$205.s5 re«-eiveil from 
 the same, l.st May. 18:!.S; .5i.0(M) received 
 from P. M. Ilu.son, trea.surer. 2_'d January. 
 lN..r»: ."Pl.OtM) received from 1'. .M. Ihison. 
 treasurer, Augu.st, 18.8!>. 
 
 In December. 1.S87. the company was in- 
 C(»rporjited with a capital of .^75.000. On the 
 (ifli IVbruary. 18.88. John B. Glenn, by a deed 
 bearing that date, coiivi'yed the land to the 
 incorjiorated company. On the 8d October, 
 18;{n. the company adopted the following 
 resolution, which is entered on their journal: 
 "Ki'scdved, That the President of the (J. S. 
 Company execute a mortgag*' of the (Jlenn's 
 Spring tract of land to J. B. (ilenn. as addi- 
 tional security to a note of baud given l)y the 
 sttK'kludders of the said company to tlie said 
 
 (o) Ligon & Thorn were not original signers. 
 They came in afterwards. See Chancellor Ward- 
 law's decree, infra. 
 
 ®=>For other cases see same topic and KEV-NUilBEK i-^ 'i Key-NumoereU Dlgesis aud Indexes 
 
 U'J
 
 *170 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 John B. Glenn." In pursuance of this resolu- 
 tion, the President of the company, (O. B. 
 Irvine,) did, on the same day, execute and de- 
 liver a mortgage to John B. Glenn of the 
 Glenn's Spring tract of land, to secure the 
 payment of the sum of $12,840, with interest 
 on $12,000 from 1st January, 1839. The 
 mortgage recited no note or instrument and 
 referred to none; but stated the considera- 
 tion of the mortgage to be $12,000 "as in 
 hand, paid by John B. Glenn," and after con- 
 veying the land in the usual form, it pro- 
 ceeds to express the conditions of defeasance, 
 which, in the payment of the $12,000 in an- 
 nual instalments, correspond with the four 
 last instalments, as secured in the instrument 
 of 15th September, 1837. 
 
 Glenn obtained a judgment at law upon the 
 mortgage for $12,840, with interest from 1st 
 
 *171 
 January, 1839, which was signed *24th July, 
 1841. So that at this time, Glenn held the 
 note, a mortgage and judgment to secure the 
 purchase money of the land. 
 
 The original stock of the company was 
 called in or paid, in the manner following: 
 
 1837, October 9, $100 per share $1,500.00 
 
 " November J 3, 500 do 7,500.00 
 
 1838, January 8, 300 do 4,500.00 
 
 " March 10, 100 do 1,500.00 
 
 $15,000.00 
 The whole of this sum, with the exception 
 of $3,005, was expended upon improvements 
 by the order of the company, and under the 
 supervision of its agents. The company be- 
 ing in want of other funds to carry on its 
 improvements, resolved to negotiate a loan 
 for $10,000 from the Bank of the State of 
 South Carolina. The preliminary resolutions 
 as to this measure are as follows: 
 
 "Resolved, That each member sign a note 
 to the Bank of the State for $10,000." And 
 again, at another time: "Resolved, That 
 each member sign a bond, binding each mem- 
 ber for his proportion of a note given by the 
 company to the Bank of the State for ten 
 thousand dollars." It seems that the loan 
 liom the Bank was obtained on the note of 
 O. B. Irvine, the President of the company, 
 payable to P. M. Huson and endoi-sed by him. 
 It. S. Brown, John B. Glenn, M. A. Moore, I). 
 Caldwell, R. Mooreman and George Ashford. 
 These facts are recited in a resolution, re- 
 corded in the journal ; and the resolution 
 provides, that the President of the company 
 is authorized to execute a note in the name of 
 the company, as collateral security for the 
 said debt, "signing the same officially direct- 
 ly to the President and Directors of the 
 Bank of the State, for the payment of the 
 said debt, and to confess a judgment there- 
 for, the Bank being permitted to retain the 
 original note, the parties thereto continuing 
 their present liability until the debt is paid." 
 The company had now become greatly em- 
 *172 
 barrassed, and re*solved to sell the Glenn's 
 
 70 
 
 Spring property. And a resolution was adopt- 
 ed to apply to the Bank for its consent that 
 the sale of the property shall be made on 
 the following terms, to wit: $5,000 to be 
 paid In cash, and $4,000 on the 1st January 
 of each year, until the whole be paid, with 
 iiicerest on the whole from the date, paya- 
 ble annually, &c. The resolution provides 
 that, of the cash instalment, $2,000 shall be 
 paid to the Bank, and $3,000 to J. B. Glenn 
 on the first of January, 1842. The purchaser 
 was to give bond to the Bank with satisfac- 
 tory personal security for $4,000 on the 1st 
 January, 1843; $4,000 on the 1st January, 
 1844 ; and the balance on the 1st January, 
 1845, with interest, and each payment first 
 to extinguish the interest, &c. It was also 
 provided, that the purchaser was to execute 
 to the Bank a mortgage, which was to have 
 the first lien on the property. The same reso- 
 lution then proceeds to provide for the pay- 
 ment of Glenn's debt out of the sales of the 
 property, but he is postponed to the Bank, to 
 whose debt a preference is given. The pur- 
 chaser at the sale was to give bond and mort- 
 gage to the Bank, which was to have prec- 
 edence in the way of lien, over that which 
 was to be given to Glenn. It was further "re- 
 solved, that John B. Glenn be requested, in 
 assenting to this, to enter satisfaction on 
 his mortgage, as a condition to the forego- 
 ing." 
 
 A correspondence was opened with F. H. 
 Elmore, the President of the Bank, as to the 
 proposals contained in the resolution of the 
 Glenn's Spring Company. The Bank, by 
 resolution, acceded to the terms proposed ; 
 Glenn also assented to the arrangement, by 
 which his debt was postponed to that of the 
 Bank; and in pursuance of the request of the 
 Glenn's Spring Company, as expressed in 
 their resolution, he entered satisfaction on 
 his mortgage, by which he also discharged his 
 judgment. The property was sold by the 
 sheriff, according to the agreement between 
 the parties. The company was greatly disap- 
 pointed in the amount of the sales. 
 
 The sale took place on the 4th of January, 
 1842. The land sold for $15,000, and the per- 
 sonal property for $3,521.23; the total 
 
 *173 
 *amount of sales was $18,521.23. The costs 
 were $224.44. The Bank received $11,526.34, 
 and the balance $6,970.53 was applied accord- 
 ing to the terms of sale to Glenn's debt. But 
 nothing is intended to be concluded as to the 
 amount of the payments that have been made. 
 
 Glenn brought an action of debt upon the 
 instrument of the 15tli September, 1837, as 
 upon a sealed note, against Sims, (1 Rich. 
 39,) one of the obligors. He obtained a ver- 
 dict in the Circuit Court, which on appeal 
 was set aside, on the ground, that Glenn be- 
 ing one of the obligors, as well as the obligee 
 of the instrument, it was not a note or single 
 bill, and that no action upon it coidd be 
 maintained at law. He then filed this bill
 
 GLEN'X V. CALHWELL 
 
 475 
 
 for the pnforccmt'nt of tlie claim asainst smh 
 (if the pa It it's to tlie contract as are solvent 
 and within the jurisdiction of the Court. 
 
 To this hill several <if the def»'ndants have 
 answered, namely: O. R. Irvine, M. A. Moore, 
 .1. Winnsmith. H. Mooreman, Joseph Cald- 
 well, executor of H. S. Hrown, J. K. H. 
 Sims and Ann Sims. wh(» has intermarried 
 with J. C. Caldwell, and who has answered 
 jointly with tiie said J. C. Caldwell, and 
 (leor^'e Ashford. The exectition of the note 
 nr instrument is not disputed hy any of the 
 defendants: nor is it denied that the (h'ht 
 due to (ileiin for the purchase money of the 
 land remains for the {,'reater part unjiaid. 
 The grounds assumed in the defence are. that 
 the note or instnnnent is a nullity, hecause 
 Glenn was one of tlie oMijiors and at the 
 same time the tiliiiiroe, or payt'c ; that the 
 I>arties to it never intended to i>e jointly and 
 severally hound; that if they ever were 
 hound at all, they were not hound each for 
 the whole ; that if they were jointly and 
 severally hound. orif:inally, they ceased to he 
 .so hound when the company was incorporat- 
 ed, and when the company, throu.^h its I'res- 
 ident, pave a mortf,'aj.'e of the land to secure 
 the payment of the deht : Into which said 
 mortpige, it is contended, the lialiility on 
 the note merged. It was further contend- 
 ed, that when (ilenn released his ri;.'hts un- 
 der the mortpaj-'e and judmnt-nt. he released 
 tlierehy the liability of the drawers or obli- 
 gors of the said seale<l instrument. Some of 
 
 *174 
 
 the defeii*(lants jilead tlie statute of limita- 
 tions to the coiuplainanfs bill, namely: J. 
 C. Caldwell and wife, J. K. B. Sims, and O. 
 V>. Irvine. On the hearing, it was said that 
 the defendants, M. A. Moore, J. Winnsmith. 
 K. Mooremau, and .Joseph Caldwell, executor 
 of K. S. Brown, had also pleaded the stat- 
 ute of limitations. This was denied on the 
 jiart of the complainant. It appeared that 
 the solicitor for the last named defendants, 
 after the tiling of their answers, had ob- 
 tained two orders on different occasions, for 
 leave to file the plea of the statute of liuii- 
 tation.s. The commissioner said there were 
 no such records in his otlice, and he did not 
 remember that there ever were. On this state 
 of facts, the solicitor of the last named de- 
 fendants submitted his own attidavit, stating 
 his belief, that the plea of the statute of 
 limitations had been filed in behalf of each 
 of the said last named defendants. This I 
 considered insufficient to establish the ex- 
 istence of a record. It can only be proved 
 by a profert, or hy positive proof of its hav- 
 ing once exi.'<te<l: after which, proof of its 
 loss or destriicti<ni and of its contents is ad- 
 missible. 
 
 Having thus, at some length, givt'ii a his- 
 tory of the tran.sactions of the company that 
 relate to the claim of the comphiiiiant, 1 must 
 now consider the rights of the parties grow- 
 ing out of the facts which I have presented. 
 
 Partners may even at law maintain ac- 
 tions against each other on contracts, or for 
 the recovery of debts, where it is obvious 
 that the subject matter of the contract or 
 indebtedness was not intended to constitute 
 a part of the capital or stock in trade. In 
 tiiis case it is clear, that (Jlenn was a part- 
 ner to contribute one thousand dollars, and 
 no more to the common fund; that being 
 the amount wliich by the articles each mem- 
 ber of the association was to pay in. The 
 balance of the purchase money of the land, 
 namely, .<14.(MX>, was due to him. as a pri- 
 vate individual, was to he his own private 
 projK'rty. and not to he subjected to the haz- 
 ards of the enten>rise. This was to he paid 
 to him by the other members of the firm. 
 
 *175 
 For independently of this contract and ♦con- 
 veyance of the land. Cilenn contributed and 
 paid in his rateable proportion of the stock. 
 
 Though the instrument of the loth Sep- 
 tember, 18.37, is not a sealed note or single 
 bill, it does not follow that it is a nullity ; 
 on the contrary, it is clearly a binding agrei'- 
 meiit or covenant, which has been expressed 
 in the form of a sealed note. It is not any 
 the less binding on account of its having as- 
 sumed that form. For being an intelligible 
 contract entered into for valuable considera- 
 tion, it is to he enforced by courts of justice 
 according to its true and just imi>ort. It 
 IS certainly not a sealed note or single bill, 
 an 1 an action upon it. as upon a sealed noti- 
 or single bill, could not be maintained. But 
 I am not .satisfied. If an action had been 
 brought at law upon it. as upon a covenant 
 or agreement inider seal, with proper aver- 
 ments, that such an action would not have 
 been sustained. At all events, there can be 
 no doubt about the right of the complainant 
 to come into this Court to enforce tliis agree- 
 ment according to its true interpn-tation, i£ 
 indit'd his original rights under it have not 
 bei'U waived or lost. When money has been 
 loaned, or property sold to a partmMship by 
 one of its members, the price of which was 
 not designed to be a part of the capital or 
 stock in trade, he is entitled to have it back 
 unconditionally, while the co-partnershi)» is 
 going on. If he waits until after its dissolu- 
 tion or in.solvency, his claim would be sub- 
 ject to all the tHjuities against him in favor 
 of the partnership; to any debt, for exam- 
 ple, which he as a member might owe the 
 comiiany. or a contribution to pay debts, if 
 there were a deficiency of as.sets to satisfy 
 the demands of creditors. In the case be- 
 fore me. it was not shown or alleged that 
 (Jlenn owed any thing to the company, or 
 that there was any outstanding, unsatisfieil 
 debt. iK'sides that of Glenn himself. The re- 
 sult of the enterprise is, that the company 
 have got from him his large and valuable 
 property, have speculated upon it: and tlie 
 speculation having proved disastrous, they 
 refuse to pay for it the stiimlated price, 
 
 71
 
 *175 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 olaiin to consider the agreement under which 
 
 *176 
 they acquired it a uullitj', and if *they can- 
 not he relieved from it on that or otlier 
 grounds, tliey plead tlie statute of limitations. 
 
 Before I proceed to gfve my views as to 
 the construction of the agreement of the 
 15th September, 1837, I will premise that 
 however tixed and established the rules by 
 which the liabilities of partners are regard-, 
 ed as to the rest of the world, they may, as 
 among themselves, make whatever contract 
 they please, and such contracts become the 
 law of the case to them. Their contract 
 among themselves, and their mutual liabil- 
 ities and obligations to each other, may as- 
 sume all the infinite variety as to form, sub- 
 ject matter or stipulation, which belongs to 
 the contracts of persons acting as individu- 
 als. 
 
 But to recur to the construction of the 
 note — my opinion is, that the just and legal 
 import is this: The subscribers to the note 
 (of which Glenn was one) agreed to purchase 
 the land at a valuation of fifteen thousand 
 dollars,, of which Glenn himself was to pay 
 one thousand dollars. The balance, namely, 
 $14,000, they all become jointly and several- 
 ly bound to pay, each in the whole and for 
 the whole. It is in the nature of a contract 
 for mutual in.surauce, and eSch signer be- 
 came a guarantor for the solvency of all the 
 rest. It follows, that those who are solvent 
 and within the jurisdiction are liable for 
 those who are insolvent and removed from 
 the State, or who may hereafter become so. 
 But from the terms of the agreement, and 
 Glenn's having affixed his own signature to 
 it, Glenn himself is an insurer or guarantor 
 for all. And in aid of those who are solvent 
 and within the State, he would, by the terms 
 of the agreement, be bound to contribute his 
 rateable proportion of the deficit of those 
 who are insolvent and out of the State. 
 
 Such I think would be the original rights 
 and liabilities of the parties to this contract. 
 Nor do I think that the subsequent incorpo- 
 ration of the company would have the effect 
 of varying those rights and liabilities. Have 
 they been lost or waived? 
 
 It was contended that when Glenn took a 
 mortgage from the corporation for the debt, 
 
 *177 
 the liability of the subscribers of the *con- 
 tract of 15th September, 1837, was discharg- 
 ed and merged in a debt of the corporation, 
 secured by the mortgage ; and one of the 
 witnesses, P. M. Huson, testified that this 
 agreement was to be held until the incorpo- 
 ration of the company ; from which it was 
 inferred, that after the incorporation of the 
 company the note was to be given up, and 
 other secui'ities given. If this was the con- 
 clusion, I do not perceive that it would help 
 the defendants. The debt of Glenn is con- 
 fessedly unpaid. To the amount thereof, he 
 is a bona fide creditor of the corporation. 
 
 V2 
 
 The company was incorporated with a capi- 
 tal stock of .$75,000. of which only .$15,000 
 has been called in. And the corporation 
 would now be compelled to call in enough of 
 its capital to pay this unsatisfied <lemand. 
 
 But there was evidence of a liigh character 
 before me that the note was not to be given 
 up ; that it was to be detained in Glenn's 
 hands, and that the mortgage was intended 
 as cumulative security. This evidence is de- 
 rived from the authentic and unequivocal 
 acts and declarations of the corporation it- 
 self, as spread upon its journal. On the 3d 
 of October, 1839, the company adopted a res- 
 olution, of which I have already spoken, that 
 "the President of the company should exe- 
 cute a mortgage of the Glenn's Spring tract 
 of land to J. B. Glenn as additional security 
 to a note of hand, given by the stockholders 
 of the said company to the said J. B. Glenn." 
 The debt had been reduced by payments. 
 The mortgage was accordingly given for the 
 balance ; upon which said mortgage Glenn 
 afterwards recovered a judgment, as has 
 been before stated. How can it be said that 
 the mortgage was a discharge of the pre-ex- 
 isting obligation, when it appears from the 
 resolution which authorized it to lie given, 
 that it was intended to be additional or cu- 
 mulative security'/ 
 
 Then it was urged that Glenn had, in his 
 mortgage and judgment, the first lien on the 
 land, and in this a most ample security of his 
 debt, which he waived by giving the Bank 
 debt a preference, and thus discharged these 
 parties from their original liability on the 
 note. If the doctrine is at all applicable to 
 the case, it will not apply under theparticu- 
 
 *178 
 lar circumstances. The Bank being a *more 
 urgent creditor, Glenn consented to waive 
 his prior lien in favor of the Bank for the 
 special benefit, and at tiie special instance 
 and request of these parties. See the reso- 
 lution of the company. 
 
 The last question which it is necessary for 
 me to consider is the statute of limitations, 
 which has been pleaded in behalf of some of 
 these defendants. The plea of the statute 
 cannot prevail. In October, 1S43, Dr. M. A. 
 Moore and J. Winnsmith offered to pay to 
 the administratrix of ,J. B. Glenn, the amount 
 of their respective contributions. Before a 
 debt is actually barred, one of several joint 
 obligors can renew it by pi-omise or offer to 
 pay. Pearce y. Zimmerman. Harp. 305. This 
 was the case of two joint makers of a note 
 who were not partners. The doctrine does 
 not apply to co-partners, except during the 
 continuance of the partnership. After a vast 
 deal of discussion and a great contrariety of 
 decisions and of opinions, the doctrine seems 
 now to be well settled ; that after the disso- 
 lution, one partner cannot bind the firm so 
 as take tlie contract from the operation of 
 the statute of limitations. So firmly had the 
 contrary doctrine taken root iu England,
 
 GI.ENN V. CALDWELL 
 
 *18I 
 
 that the iriteiiiositioii of Pailhiiueiit was nee- 1 
 essary to »)Verturu it. Stat. !», <Jeo. 4. The | 
 adnii.>Jsioii «»f two of these defeiuhiiits, I con- 
 ceive insulticient to renew this daiui a;:ainst 
 tile others, so as to prevent tlie statute from , 
 rutniin;: apiin.st the otiiers. excejit from the ^ 
 (late of that acknowletl;xnient. ] 
 
 liut there is another fart which I think | 
 jirevents the statute from operating as a har j 
 to the claim. In the year 1X41. while the or- | 
 pinization of the company still existed, and | 
 liefore any dissolutittn. the comjiany adt>pted i 
 i-esolntions for the sale of their property. , 
 Amonj: other thint;s, they made arrans^'uients j 
 for the jiayment of <Jlenns claim out of the 
 proceeds of these sales, to this effect. He | 
 wa.s to have three thousand dollars in cash | 
 from the purchase money. The halance of j 
 the purchase money, that was to he applied 
 to Glenn's claim, was to l)e iiaid in instal- 
 ments hy the purchaser, on the first of Janu- 
 ary, l.s4o, on the first of January. 1S44, and 
 on the first of January, l.s4r>. with interest. 
 This was the arran;-'ement that was carried 
 
 *179 
 into effect, and what *(;ienn did actually re- 
 ceive from these sales, was paid to liim in 
 this way. Thus he has received payments as 
 late as January, 184"), made hy authority of 
 and under an arrangement with the company 
 hefore its disstdution. Tlii)u;,'h the arranye- 
 inent was made in 1S41, it was not consum- 
 mated luitil 1845; iiayments were made in 
 that year under the authority of the compa- 
 ny, which in my jud'-'ment, is the same as if 
 the company had at that time itself made the 
 payment. It is from that time only that the 
 statute olitained currency, and the lapse of 
 time has nol heen Ionic enoujih to create the 
 statutory har, the Mil iiavinj? heen filed the 
 I'Tth January. 1847. The plea of the statute 
 is therefore overruled. 
 
 Ann Sims, (who has since intermarried 
 with the defendant, J. C. Caldwell.) was one 
 of the orifrinal suhscrihers to tlie ajireenient, 
 and one of the stockholders. She paid up 
 one hundred dollars on her stock. But fail- 
 ing to pay the other instalments as they ' 
 were called in, by one of the regulations of 
 the corporation, her stock was forfeited. 
 The company procee<lcd to forfeit her stock 
 for their own benefit, and to appropriate it 
 to themselves. Thus Ann Sims was e.vcom- 
 municated and cast olT hy these parties, 
 ((Jlenn being one of them.) from all benetit in 
 a coiwiection with the company. Under these 
 (ircunistances. 1 cannot perceive that it is 
 e(iuifable that she should contribute. Indeed, 
 it was admitted, on the trial, that she is not 
 liable. The bill as to her and her husband, 
 J. C. Caldwell, is disnussed with costs. 
 
 It is declared and decreed, that each of 
 the defendants, with tlie excejition of the 
 said J. C. Caldwell and Ann Caldwell, are 
 liable jointly and .severally fur the balance 
 «lue on the aforesaid agreeiiu-nt of the ir>th 
 September, 18o7, and that the complainant 
 
 do contribute a rateable proportion towards 
 the shares of those that are insolvent an, I be- 
 yond the jurisdiction of the Court, and also 
 the share of Ann Sims. 
 
 It is further ordered and decreed, thait the 
 connnissioner imiuire and report the balance 
 due to the com|tlainant on tlie .said agree- 
 ment. And the (((mmissioner is directed to 
 rei»ort the balance due on the purt luis- mon- 
 
 ♦180 
 
 ey for the land, to wit: !i;i."».(KM), afler ♦de- 
 ducting payments made by the fumls of the 
 company. Krom this balance he is directed 
 t«» deduct one-fifteenth i>art. on account of 
 the share of the said J. H. (Menu; and con- 
 sidering (Jlenn as one of the solvent parties, 
 the commissioner is directed to deduct al.sy 
 from said lialance. his ratable proportion of 
 the liability of the parties insolvent or out 
 of tlie State, namely. II. D. Vaidew. R. A. 
 Nott. L. X. Shelton, Wra. C. I'earson, H. 
 Ligon, W. L?. Thorn and J. C. Caldwell and 
 wife; after which deductions the balance re- 
 maining shall be the debt due to the com- 
 plainant by the defendants jointly and sev- 
 erally. 
 
 The defendants appealed, on the grounds: 
 
 1. Because the parties to the agreement of 
 the loth September. 18."{7. were released aft- 
 er the Act of incorporatitai. and tla- debt 
 then became, by the consent of all i)arties, 
 the debt of the corporation. an<l not of the 
 individual Hiembers. 
 
 '2. Because the coinplainanfs intestate re- 
 leased the parties to the agreement, by tak- 
 ing a mortgage from the corporation, exe- 
 cuting a deed to the same, and ea<ii one of 
 the subscriliers having paid the amount of 
 their subscriptions and proportionate part of 
 the agreement, are no further liable. 
 
 l^. Because if defendi'iits are liable at all, 
 they are only liable for their proportionate 
 amount due on the agreement. 
 
 4. Because the complainants claim is bar- 
 red by the statute of limitations. 
 
 The defendant, J. K. B. .sinis, appealed, on 
 the further ground: 
 
 5. Because the complainant should have 
 heen ordered to pay the costs expended hy 
 him in defending himself at law on the 
 agreement now sued on. 
 
 The defendants, J. Winnsmith, .M. A. 
 Moore, (ieorge A.shford. K. Mooreman. and 
 Joseph Caldwell, executor of Brown, appeal- 
 "td, on the further ground, viz: 
 
 6. Because the release of Ann Sims, now 
 Mrs. Caldwell, from any liability on the sub- 
 .scription, or on the agreement of the l.jth 
 September, 1N.*>7, was a release (»f tni-m. 
 
 ♦181 
 
 ♦The app'.^-il was heard at November ternu 
 18.")(». when the cause was remanded irmeral- 
 ly to the circuit Court, with leave to all the 
 defendants to plead the .statute of liuiita- 
 tions. 
 
 At June term, ls.")l, the cau.se was agnin
 
 nsi 
 
 4 RICHARDSONS EQUITY REPORTS 
 
 heard, in the circuit Court for Uiiion. by 
 Wardlaw, Cli., who pronounced the following 
 decree : 
 
 Wardlaw, Cli. This cause was lieard 
 first by Chancellor Dargan, in June, 1S50, 
 and he delivered a decree for the plaintiff. 
 Upon appeal from tliis decree, the Court of 
 Appeals, at November term. 1S50. gave all 
 the defendants leave to plead the statute of 
 limitations, and remanded the cause general- 
 ly to the circuit Court. At the present hear- 
 ing, this plea was found to be pleaded ; but 
 in other respects the case made was sub- 
 stantially the same as that presented to 
 Chancellor Dargan, and I refer generally to 
 his statement of tlie pleadings and evidence. 
 Some remarks, however, explanatory of this 
 statement, nuist be made. 
 
 The agreement in tlie stock book without 
 date, it is manifest from the internal evi- 
 dence, and from the direct testimony of P. 
 M. Huson, was subscribed by fifteen persons 
 before the single bill of September 15, 1S37, 
 was executed. George Ashford was one of 
 the original subscribers to both instruments. 
 B. Ligon came in afterwards and signed the 
 single bill but never subscribed the stock 
 book. William B. Thorn also came in after- 
 wards, in the place of Ann Sims, and sub- 
 scribed both instruments. 
 
 The company was incorporated December 
 20, 1837. for fourteen years, in the following 
 terms: "That Dr. Morris Moore and his asso- 
 ciates and their successors be, and they are 
 liereby constituted, a body corporate, under 
 the name and style of the Glenn's Spring 
 Company, with power to hold property, real 
 and personal, of the value of seventy-live 
 thousand dollars." S Stat. 457. 
 
 At the meeting of the company, Aug. 16, 
 
 1838, a resolution was adopted, that the Pres- 
 ident of the company communicate to Ann 
 Sims, that her share, with $100 paid thereon, 
 was liable to forfeiture, but that she might 
 redeem by paying the $900 due on lier share, 
 by September 10, ensuing, or that the com- 
 
 *182 
 
 pany would *release her from all her re- 
 sponsibilities on Capt. Glenn's note, if she 
 would relinquish in writing all her interest 
 in the company. Iluson thinks she gave such 
 relinquishment, but the instrument was not 
 produced nor accounted for. At the meeting 
 on the second Monday in November, 1838, 
 resolutions were adopted forfeiting Ann 
 Sims's share to the company, and selling and 
 tj-ansferring the same to W. B. Thorn. The 
 said Thorn attended meetings of the com- 
 pany on January 21, 1839, and October 17, 
 
 1839. It does not appear what members were 
 present at the meeting of August 16, 1838, 
 although officers were elected at that meet- 
 ing. At the other meetings named, as well 
 as tliose whicli acted concerning the debt to 
 the Bank, and the sale of the assets of the 
 company, Glenn himself attended, with a ma- 
 
 74 
 
 I jority of the share holders. Ann Sims at- 
 tended no meeting of the company in person 
 I or by proxy. Appended to Thorn's snbscrip- 
 1 tion in tlie stock book, is this memorandum: 
 1 "It is understood that W. B. Thorn take the 
 I sliare forfeited b> Mrs. Sims : on or before 
 ! the first of November next he is to pay the 
 I subscription." 
 
 All the credits indorsed on the single bill 
 ' purport to be received from ^loore or Iluson, 
 as treasurers of the company. 
 
 Otlier explanations may be made inciden- 
 tally in considering the rights of the parties. 
 I concur in the views presented in tlie for- 
 mer circuit decree, that by the just construc- 
 tion of the single bill of September 15, 1837, 
 the obligors are jointly and severally liable 
 to Glenn and his representatives, for the 
 balance remaining unpaid of tlie $15,000, 
 and interest, agreed to be paid by that in- 
 strument ; and that such of them as are 
 solvent, and within the jurisdiction, are li- 
 able for those who are or may be hereafter 
 insolvent or without the limits of tliis State. 
 Glenn being himself one of these obligors, 
 made himself equally liable with the others, 
 and his representative must abate from any 
 recovery to which she may he entitled a rate- 
 able proportion, so as to make lier loss and 
 liability equivalent to the liability of each 
 of tlie solvent obligors within the jurisdic- 
 tion. 
 
 *183 
 
 *I likewise agree that the liability of the 
 obligors of this instrument is not restrictCvt 
 to the terms of the original subscription in 
 the stock book, nor extinguished by any sub- 
 sequent act of the company. In the absence 
 of all proof of fraud or mistake, or of any 
 reference to another paper, the constru(?tiou 
 of the single bill must be collected from its 
 own terms. The impression of Huson that 
 this instrument was executed as an arrange- 
 ment ad interim, until the company might be 
 incorporated, and execute another obligation, 
 is contradicted by the whole proceedings of 
 the company ; particularly by their resolu- 
 tion of October 3, 1839, to execute a mort- 
 gage as additional security for this single 
 bill, and by tlieir resolution of September 21, 
 1841, pro^■iding for its payment after the 
 debt to the Bank. That Glenn was anxious 
 to obtain a mortgage from the company, 
 evinces only the caution of a slirewd creditor 
 desiring to accumulate securities for his 
 debt. Ilis anxiety about the mortgage, Hu- 
 son informs us, was fully shared by Dr. 
 Moore, and perhaps by other solvent mem- 
 bers of the company, who could have had 
 no anxiety on the subject, except to secure 
 themselves from liability, on account of 
 I'earson and other obligors, the solvency of 
 whom was suspected. 
 
 In my judgment, the remedy of the plain- 
 tiff depends exclusively on the single bill. 
 The otlier grounds upon which her right of
 
 (ilA.SS V. CALIiWKLL 
 
 ►isr, 
 
 rpoovery nro pinned In argument, I supi)Ose 
 to l»e unteniibh'. 
 
 It Is said that tlic coinpiiiiy was iiicorpo- 
 nitwl witli a caiiifal (if $7r.,(K)0. aii<l that as 
 only $in,fK»0 of fills sum had hwM actually 
 paid in. tin* plalnfilT nii^lit (oniiM'l the stock- 
 holtlors to raise so niuch <»f the Italance of 
 capital as was nece>;.sary for the payment of 
 dehts. It seems to me to he a ndsaiiprehen- 
 slon of the terms of the charter, to say that 
 this company was incorporated with any 
 su<h capital. Tlie Li'^islature in this case, 
 as ill many other <harters, proceedln;; upon 
 tlie imjiollcy of allowing; estates to he held 
 in mortmain, has prescril ed a sum as the 
 maximum value of the pntperty which mlKht 
 lie owned liy the company, hut there is no 
 intimation tliat the c<impai!y must liold that 
 amount and no less. 'I'lif disiildllty of the 
 
 *184 
 company to hold in succession, is re*moved 
 t«» a limited extent. A privile;:e to invest 
 the jirodts of successful luamiKcuHMit in cer- 
 tain estate, at the option of tiie done<^s. can 
 be converted bj- torture only into a require- 
 ment to make the particular investment. 
 The case is altogether unlike Ilaslett v. 
 Wotherspoon. (2 Rich. E(|. :',or>.) There the 
 company was incorporated with a present 
 cjiiiital of .$(iO,(K)(). upon the faith of which, 
 as capital invested, the debts were contract- 
 ed ; and tlie creditors mi;^ht well Insist that 
 the cori»orators should make fiood their 
 pledfies to the c<)mmuiiity. Here the creditor 
 was himself a corporator, and no representa- 
 tion as to capital was made calculated to 
 deceive any creditor, even one not cojinizant 
 of the transactions of the company. It is 
 hardly necessary t(» reply to the su^Kestion. 
 that the charter contains no limitation of the 
 personal responsibility of the members of the 
 company. The main object, and the effect of 
 a charter, are to limit responsiliility to the 
 extent of the corporate assets. 
 
 It is likewise urp-d, that this company, 
 by engaging? in the business of merchants and 
 bankers, as by the proof it did to some ex- 
 lent, forfeited the charter, and subjected the 
 members individually to the deltts of the 
 plaintiff and otlier creditors. It may be ob- 
 served tliat the charter does not indicate the 
 purposes for whidi the company was incor- 
 porated ; and if the object to establlsli a 
 watering place had been distinctly set forth, 
 it would not be clear that the purchase and 
 sale of goods, and the issuing of notes, might 
 not be incidental to tlie object. Hut if the 
 charter might lie forfeited at the Instance 
 of tlie granting power, for abuse of the 
 privileges conferred, such complaint cannot 
 lie lieard from the nmuth of a corporator who 
 concurred in the abuse of the charter. 
 
 I do not perceive the force of another argu- 
 ment that the plaintiff is entitled to be sub- 
 rogated to the rights of the I'.ank in this 
 matter, 'nie Bank had no lien by mortgage 
 or judgment, except upon the corporate as- 
 
 sets of the company, and these assets have 
 been administere<l with the consent of the 
 plaint llT's intestate; and the in»te to the 
 Hank by iiulividual corporators, has lieeii 
 
 ♦185 
 ex'tiiiguished by payment, and if not. is 
 liarred Ity tlie statute of limitations. The 
 Iilaintiff, representing the intestate, lias no 
 e<iuity to recover from these corporators who 
 have biH-n exonerated by his con.seiit. 
 
 The plaintifT must stand upon tlie obliga- 
 tion of September !.">. ls;',7 ; and the main 
 (piestion in the case is whether she is barred 
 from her remedy by the «»iKTation of tlie 
 statute of limitations. 
 
 The counsel for the jiiaintilT urges tliat. 
 granting this single bill to be a mere covenant 
 which would be barred by the statute for 
 non-claim within four years before .lanuary 
 li7. ISIT. when this bill was fileil. the bar has 
 be«'ii removed by certain promi.ses. and pay- 
 ments made in that interval of time. 
 
 The otter of Drs. Moore and Winnsmitli. in 
 the fall of IM;:, each to pay one-fifteenth of 
 the single bill if they Were discharged from 
 fuitlier liability, was rejected by the plain- 
 titT as conditional; and in my opinion, such 
 an offer to buy peace, when rejected, cannot 
 be construed into an acknowh'dgment of sub- 
 sisting liability so as to create a new start- 
 ing point for the statute. 
 
 Reliance is placed on the fact, that of tlie 
 obligations and notes placed in the hands of 
 (ileiiii for -payment of this single bill, on Jan- 
 uary 4, IMli. when the whole assets of tlie 
 company were sold, and wlieii the company 
 was 111 fact di.s.solved. some of the obligations 
 and notes were not payable nor jiaid to liim 
 until lK4r). Hut I consider this tran.sactlon 
 to have no operation ujion the statute, as a 
 point of origin for the bar, beyond the date 
 January 4. is41i. when, so far as (ileiin and 
 the company were coiKerned, the payment 
 was made. X«) acknowledgment or pr<»iuise 
 on the part of the company or its members 
 then made, is prospective; the subsequent 
 dealings of (Jleiin witli the obligors or malvers 
 of these chos*>s, accepted by him in iiayment, 
 were res inter alios acta. (Jleiin himself, 
 with new associates, purcha.sed the Springs 
 at tills sale, and thus united the character 
 of (h'btor and creditor, but to what extent 
 was not iiroved. 
 
 The <|uestion recurs, whether the statutu 
 of limitations is at all apiilicable in this case; 
 or, in otlier words, whether the instrument 
 
 •186 
 ♦in question is a covenant or a bond. "The 
 statute of limitations does not appl.v in 
 terms to proce«'dings in the Courts of I':<iuity. 
 It applies to iiarticular actions at common 
 law, and limits the time within which they 
 shall be brought acc(»nling to the nature of 
 tlio.se actiiMis, but it does not say there shall 
 be no rec<jvery in any other mode of proct-ed- 
 ing." Hond v. Hopkins, (1 Sch. & I.ef. 4128) ; 
 Smith V. Smitli, (McMul, Eq. 134). Courts of 
 
 75
 
 *186 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 Equity, in analogy to tlie statute of limita- 
 tions, will regard any legal demand as barred, 
 by the same time in which it would be barred 
 at law. Now, by our Act of limitations, ac- 
 tions of covenant are barred within four 
 year« from the accrual of the right to sue. 
 but actions of debt upon specialty are not 
 barred at all, being left to the presumption of 
 satisfaction at ct)mmon law from non-claim 
 for twenty years. Is the instrument in ques- 
 tion one upon which an action of covenant at 
 law could be ^maintained? ;I think not. 
 Wherever at law one occupies both sides of 
 the contract, unless exception be made as 
 to certain commercial instruments — when he 
 is at once entitled to demand fulfilment of 
 the contract, and is bound, whether jointly 
 with others or. not, to fulfil the contract ac- 
 cording to the demand ; when he is obligor 
 and obligee, or covenantor and covenantee — 
 the contract is ipso facto extinguished, and 
 no suit whatever can be maintained. Such 
 is the effect of the decision of our Court of 
 Law in Glenn v. Sims, (1 Rich. .34 [42 Am. 
 Dec. 405],) upon this very instrument. In 
 the report of the case, the form of the action 
 is not stated, and the defeat of the plaintiff 
 is placed upon general principles, and in no 
 respect upon the pleadings. In Rambo v. Metz, 
 (5 Strob. 110 [53 Am. Dec. 694],) the former 
 case is interpreted as deciding that Glenn, 
 or his administrator, "could not have main- 
 tained any action on the specialty, because 
 he united in himself the character of -both 
 obligor and obligee, so that, if he only did 
 what he promised, the obligation was fulfill- 
 ed." I conclude, as well from comity to the 
 Court of Law, as from my own notions of 
 doctrine, that this instrument is not the 
 basis of a legal demand by covenant or other 
 form of action. 
 
 The instrument has the form of a single 
 *187 
 bill, except that J. B. *Glenn is the obligee 
 as well as one of the obligors ; the plaintiff" 
 comes into this Court on account of this 
 legal ditriculty, and is confessedly entitled to 
 have substantial performance of the contract 
 according to the intention of the parties. The 
 Court of Law, on the ground, tliat the remedy 
 there is confined to the written form to which 
 the contract has been reduced, remits her for 
 proper relief to the Court of E(iuity. Is she 
 to be told here that the mistake of form, 
 of Avhich she complains, shall be corrected 
 only if the whole form is changed? I do not 
 perceive the equity of thus converting a 
 single bill into a covenant, merely for the 
 purpose of bringing the instrument within 
 the bar of the statute. It is incongruous to 
 change a defective instrument into a legal 
 demand so onerous, while we are professing 
 to relieve against the strict rules of the com- 
 mon law. There is no reason why we should 
 not give effect to the intention of the parties, 
 that the creditor might safely indulge his 
 debtors for twenty years. 
 
 76 
 
 Courts of equity sometimes interfere to 
 prevent the bar of the statute of limitations 
 when it would be unjust or ineciuitable ; 
 and especially they will not allow it to pre- 
 vail by mere analogy in suits in e(iuity, 
 where it would be in furtherance of manifest 
 injustice, (Story Eq. § 1521); Bond v. Hop- 
 kins, (1 Sch. & Lef. 413). Here the debt 
 of the plaintiff" is unpaid; and the justice, 
 if not the law, of the case, is aft'ected by vhe 
 facts, that within four years before the filing 
 of this bill the plaintiff" has prosecuted her 
 suit at law, and certain promises and pay- 
 ments have been made to her. 
 
 The plea of the statute is overruled. 
 
 It remains to enquire as to the liability of 
 Ann Sims, now the wife of J. C. Caldwell. 
 There was no appeal irom the former decree 
 dismissing the bill as to Caldwell and wife. 
 She never accepted the charter of the com- 
 pany, so far at least as members of the com- 
 pany are concerned. The .$15,000 for which 
 she was liable, have been paid in full, and 
 appropriated without her consent, and with 
 the consent of plaintiff""s intestate, to improve- 
 ment of the corporate estate. William B. 
 
 *188 
 Thorn was accepted as her *substitute upon 
 the single bill, with the concurrence of the 
 plaintiff''s intestate, and of most of the de- 
 fendants ; and with like concurrence she was 
 repudiated as a member of the company as to 
 its profits and liabilities, and another put in 
 her stead. It seems reasonable that she, as 
 well as the other party, should be allowed 
 to avail herself of this arrangement. The 
 proof does not show that all the defendants 
 concurred in this substitution, but it does 
 show that the plaintiff's intestate, and nearly 
 all the defendants so concurred, and that all 
 had agreed, Aug. 16, 183S, mat a majority 
 of the whole compan.v should constitute a 
 quorum to do business. In this respect, I 
 concur with the judgment of the former 
 Chancellor. 
 
 It is ordered and decreed, that the commis- 
 sioner of this Court enquire and report as 
 to the balance due upon the single bill in 
 question, after deducting all payments made 
 thereon by the treasurers of the Glenn's 
 Spring Company, or from the funds of the 
 company or otherwise ; and that this lialance 
 be paid by the solvent defendants within this 
 State, not enunierating J. C. Caldwell and 
 wife, to the plaintiff", after deducting an ali- 
 quot portion for the liability of plaintiff's 
 intestate ; it being understood that such 
 solvent defendants within the State, (except 
 J. C. Caldwell and wife,) and the plaintiff, 
 are rateably liable for the pi'oportions of such 
 of the obligors as may be eventually insol- 
 vent or out of the State ; among whom are 
 now named, II. D. Vanlew, R. A. Nott, L, N. 
 Shelton, W. C. Pearson, B. Ligon. and W. 
 B. Thorn. 
 
 The defendants appealed, on the following 
 grounds, viz:
 
 GLEXN V. CALDWELL 
 
 4;)i 
 
 1. r?efa\iso the parties to tlie agreement of 
 the inth Seiit<'jnl)er, 18.'i7, were released after 
 the Aet of incorporation, and the debt then 
 heeanie. by the consent of all parties, the debt 
 of the incorporation and not of the individual 
 members. 
 
 12(1. Reeaus«' the complainant's intestate re- 
 leased the partitas to the a«reenient. by tak- 
 Ini; a mort^'aj,'e from the corporation, execut- 
 ing a deeil to tiie same, and each one of 
 the subscribers havinj; paid the amount of 
 their subscriptions, and i)n>p(irtionate part of 
 tlie agreement, are no furtlier liable. 
 ♦189 
 
 *:i Hecause if defendants are liable at 
 all. they are only liable for their proiior- 
 tionate amount dm* on tlie agreement. 
 
 4. Re«ause tlie complainant's claim is bar- 
 red by the statute of limitations. 
 
 The defendant J. K. B. Sims. a|ipealed on 
 the further ground : 
 
 o. Because the complainant siioiibl have 
 been ordered to i>ay the costs, expended by 
 him in defending himself at law on the 
 agreement now sued on. 
 
 Tlie defendants J. Winnsmith. M. A. 
 Moore. TJeorge Ashford. R. Moon'Uian. and 
 Joseph Caldwell, executor of lirown. api>eal- 
 ed on the further ground, viz : 
 
 fi. Because the release of Mrs. Ann Sims, 
 now Mrs. Caldwell, from any liability on 
 the suiiscription. or on the agreement of 
 the loth September, 1837. was a release of 
 them. 
 
 Herndon. Dawkins. for ai»pellants. 
 
 Tlioinson. Bobo, contra. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW. Cli. On the (juestions pre- 
 sented by this appeal, we are content gen- 
 erally with the reasoning and conclusions 
 of the circuit decrees: and none requires 
 additional observations, exceitt that in the 
 fourtli ground of api)eal, as to the bar of the 
 statute of limit.itions. 
 
 In <;ienn v. Sims. 1 Rich. .".4 |4li Am. Dec. 
 4051, the single bill which is the cause of 
 action in the present suit, came under dis- 
 cus.sion in our Law Court of Appeals, and 
 it was determined in that case, that as J. B. 
 Clciui united in himself the diaracters of 
 obligor and obligee, no suit at law could be 
 maintained on the specialty. This imiter- 
 fcction in the form of the instrument. i)re- 
 veiits the remedy of the jilaintiff. I'itiier hy 
 del)t or covenant, according to the procedure 
 of the Court of Law; l)ut it does not annul 
 the contract, nor hinder tiie execution of it 
 here, according to the intention of the par- 
 ties. Judge Richardson, in delivering the 
 opinion of the Court, speaks of the incon- 
 sistent relations of Glenn to the obligation, 
 as making a case very like that where a 
 
 ♦190 
 testator aiipoints ♦his debtt)r «'xecutor of 
 his will. The case thus i>ut, aptly illustrates 
 
 the power of this court to afford relief, 
 wliere the formal inconsistency of l)eing i)oth 
 idaintiflf and defendant obstructs a suit at 
 law. The aitpointment of a debtor to be ex- 
 ecutor, even if he l)e one of several joint or 
 joint and several del)tors, or one of several 
 executors, operates at law as a release or 
 extinguishment of the del)t ; and this is on 
 the principle that a debt is merely a right to 
 recover the amount i)y way of action, and 
 as an executor cannot maintain an action 
 again.st himself tlie action is suspended ; and 
 a iiersonal action once suspended by the vol- 
 untary act of the imrty, entitled, is forever 
 gone and discharged. 12 Wins, on Ex'ors. 
 (»;>7. But in equity, an executor is accounta- 
 ble for his debt as general assets of the e.s- 
 tate. lyord Thurlow, in Carey v. (loodinge. 
 (:5 Bro. C. C. 111.) and Sir William Crant, 
 in Berry v. T'.sher, (11 Ves. 90,) treat the 
 point as perfectly settled, that the apiioint- 
 ment of a debtor to be executor is no more 
 than a iiarting with the action, and that it 
 shall not operate as a relea.se against credi- 
 tors or legatees. If an executor should die 
 indelited to his testator by bond, could it 
 be doubted that the debt would be set up 
 in equity as a specialty against the execu- 
 tor's estate? The contract under considera- 
 tion has in every respect the form of a sin- 
 gle hill, except that the name of the obligee 
 is added as one of the oliligors. It is an 
 agreement to pay money — a debt hy special- 
 ty — and -is in no other sense a covenant, 
 than as every bond is a covenant. I sup- 
 pose that the adion of covenant might he 
 brought upon a bond for the payment of 
 money, and that if such form of action were 
 adojited. the statute of limitations would be 
 ajiplicable. It is not the usual course of 
 equity to torture into a covenant an instru- 
 ment susceptible of a different construction, 
 merely for the purpose of defeating the 
 remedy of the party entitled. What other 
 roiison is there for denominating this sin- 
 gle bill a covenant, than to bring it within 
 the operation of the statute of limitations? 
 It may certainly be construed otherwise. If 
 we should express the contract between 
 these parties by two instruments, we would 
 
 ♦191 
 then have in one, the iiromise ♦under seal 
 of the other obligors to pay (xlenii .^l.l.OOO. 
 a mere debt ; and in the other the agree- 
 ment of Glenn to incur a rateable share 
 with the obligors of loss and liability. Or 
 .>-npi)ose we consider Glenn's name struck 
 out from one of the two sides of the con- 
 tract, the result would be the same. If his 
 name as an obligor be canci'lled. he would 
 still be bound in this Court, on ju-oof of the 
 intention of the parties, while seeking e(iui- 
 ty to do equity, by assuming his just share 
 of res|)onsibility. It may be urged with 
 much i)lausibility. and upon gowl authority, 
 that tlu effect of Glenn's execution of the 
 iiislrumeut as an obligor, is to expunge his 
 
 11
 
 *191 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 name as obligee. In Devore v. Mundy, 4 
 Strob. 15, the payee of a note, payable to 
 himself or bearer, transferred it to a third 
 person, and intending to bind himself as sure- 
 ty of the original maker, signed his name as a 
 maker. The Court say: "The rule in such 
 cases as this, is to give effect, if possible, to 
 the intention of the parties. The intention of 
 the defendant to bind himself being ascertain- 
 ed, our business, if we legally can, is to give 
 it effect. The note may be very well read un- 
 der such circumstances, as if the name of the 
 payee were struck out; his signature as 
 maker may very well have that effect ; and 
 it would then stand as a naked promise on 
 his part to pay the bearer. This must be 
 so, as is said in Stoney v. Beaubien, 2 McM. 
 313 [39 Am. Dee. 128], because otherwise 
 no legal effect would result from the defend- 
 ant's signature as maker." The application 
 of this case may be impugned, as being up- 
 on a commercial instrument, in relation to 
 which the, rules of the Court of law are 
 less stringent than as to obligations. Grant- 
 ing this, it is difficult to perceive any rea- 
 son why a Court of Equity should not ex- 
 tend such liberal construction to all instru- 
 ments. The case of Cockrell v. Milling, 1 
 Strob. 444, demonstrates the disposition of 
 our Law Court to give effect to the inten- 
 tion of the parties, at the sacrifice of form, 
 eA'en in sealed instruments. It was held 
 there, that one writing his name on the 
 back of a single bill — which purports of it- 
 self to be a mere assignment without guar- 
 anty — was liable as surety or indorser of 
 the obligor, upon proof of his intention to 
 be so bound. 
 
 *192 
 *If we may consider, then, this instru- 
 ment as being in blank as to the name of 
 the obligee, there is no difficulty in main- 
 taining it as a single bond. In Gray v. 
 Rumph, 2 Hill Eq. 6, a bond was set up in 
 this Court, although it was in blank as to 
 the obligee and penalty. This is a mere il- 
 lustration of the principle that equity will 
 not permit a trust to fail for the lack of a 
 trustee. If this single bill had been drawn 
 payable to some stranger, in trust for 
 Glenn, undoubtedly effect would have been 
 given to it as a debt by specialty, and yet 
 it is the same thing in substance. If a tes- 
 tator should give to a married woman, for 
 her sole and separate use, the note or bond 
 of her husband, it will not be contested 
 that equity would supply a trustee and give 
 effect to the legacy. Lord Hardwicke says, 
 in Skip V. Huey, 3 Atk. 93, there are many 
 cases where equity will set up debts ex- 
 tinguished at law against a surety as well 
 as against a principal, as where a bond is 
 burnt or cancelled by mistake, or delivered 
 to the obligor by his fraud. 
 
 In Hill V. Calvert, 1 Rich. Eq. 56, the or- 
 dinary struck out the name of one of the 
 obligors in a guardianship bond, and per- 
 
 78 
 
 mitted another to sign as a substitute ; yet 
 although the ordinary was the nominal 
 obligee and legal owner, it was held that 
 the first obligor was not discharged, nor the 
 second bound. 
 
 The survivor only of several obligors of a' 
 bond is liable at law, yet the representative 
 of a deceased obligor may be successfully 
 pursued in equity. 
 
 All these cases, and many others might 
 be cited in illustration, establish the general 
 principle, that the intention of parties, safe- 
 ly deduced from the instruments of con- 
 tract, shall not fail in equity, by reason of 
 defect of form, which might defeat recovery 
 at law. In the present case, my mind forms 
 the conclusion, from the instrument itself, 
 that it was the intention of the parties to 
 create a debt by specialty, not within the 
 statute of limitations, and to be barred only 
 by lapse of time. 
 
 The same conclusion may be attained by 
 a different course of reasoning. 
 *193 
 
 *Courts of Equity will grant relief in cases 
 of mistake in written contracts, not onlj 
 where the fact of mistake is expressly es 
 tablished, but also where it is fairly implied 
 from the nature of the transaction. Thus, 
 in cases where there has been a joint loan 
 of money to two or more obligors, and they 
 are by the instrument made jointly liable, 
 but not jointly and severally, the Court will 
 reform the bond, and make it joint and sev- 
 eral, upon the reasonable presumption from 
 the nature of the transaction, that it was 
 so intended by the parties, and was omitted 
 by want of skill or mistake. 1 Story Eq. § 
 162. 
 
 In Simpson v. Vaughan, 2 Atk. 31, where 
 there was an actual loan to partners, and 
 their joint bond was taken. Lord Hardwicke 
 inferred mistake in the form of the bond, with- 
 out express proof, and said: "The debt arises 
 from the contract itself, and if there is any 
 defect in the bond, the Court will resort to 
 what was the principal intention of the par- 
 ties, that they should be severally and jointly 
 bound." The cases on this point are well 
 collected and explained by Chancellor Har- 
 per, in Pride v. Boyce, Rice Eq. 2SS [33 Am, 
 Dec. 78]. See also King v. Aughtry, 3 Strob. 
 Efc[. 156. 
 
 Where a bond is executed by one partner 
 in the name of the firm, all the partners in- 
 tending to be bound by the obligation, the 
 obligee has no remedy at law against the 
 firm, but may charge them in equity on the 
 ground of mistake. McNaughten v. Par- 
 tridge, 11 Ohio, 223. In such case, there 
 would be a merger at law of the original 
 simple contract, and the partner executing 
 the bond would be alone liable. [.Jacobs v. 
 McBee] 2 McM. 348. Gardner v. Hust, 2 
 Rich. 601. 
 
 Where a bond is intended to be executed, 
 but the seal is omitted by accident, relief
 
 GLEXN V. CALDWELL 
 
 *193 
 
 will be granted In equity, althoujih tlie luirty 
 might proceed at law upon the simple con- 
 tract, on the ground, that the consideration 
 of the bond cannot be enipiired into; and 
 it might lie added, because* a bond is not 
 within the statute of limitations. Montville 
 V. Ilaughton. 7 Conn. R. 54U ; Wadsworth 
 V. Wendell. .5 John. Ch. 225. 
 
 In Argenbright v. Campbell, 3 Hen. & 
 
 *194 
 Munf. 144, a written *instrument was declar- 
 ed to be a good bond, with colhiteral condi- 
 tion for the benefit of the obligee, although 
 the obligor's name was not signed opposite 
 to the seal, but between the penal part anil 
 the condition, and the name of the obligee 
 was signed at the foot of the condition, 
 opposite to the seal ; both signatures being 
 attested by the same witnesses. 
 
 In every case where an imperfect bond is 
 set up in e<iuity, it is established with all the 
 incidents of a specialty. 
 
 In the case before us, it is not necessary, 
 in my opinion, to look beyond the instrument 
 itself in order to ascertain the mistake of 
 the parties. But if proof of mistake by ex- 
 trinsic evidence is needed, I think it is afford- 
 ed by Huson, tiie witness of defendants; and 
 his testimony is competent to show mistake, 
 but incompetent to give construction to the 
 instrument. He testifies that, after the re- 
 jection of several other forms. Dr. AVinn- 
 smith objected to the form of obligation 
 finally adopted, as on his construction he was 
 liable for the whole, and that tiiis was the 
 reason that Glenn signed the sealed note — 
 that Glenn was retiuired to sign the note 
 in order to put all on e<iuality, as he retained 
 one share. It is obvious from this testimony, 
 that tile only purpose of (Jlenn's signature 
 to the specialty was to furnish evidence of 
 his rateable liability. The substance of Dr. 
 Winnsnuth's objection to the obligation is, 
 not that he was bound for the whole, but that 
 Glenn, a partner in the enterprise, was not 
 also bound. To avoid the inference of mis- 
 take, one of the counsel for defendants sug- 
 gests to us that it was the deliberate purpose 
 of some of the obligors, in requiring Glenn's 
 signature as co-obligor, to render the instru- 
 ment a nullity, upon wiiich no suit could be 
 brought, l)Ut we cannot presume so gross a 
 fuaud as this would imply on the part of re- 
 spectable gentlemen, without some pri>of. 
 
 We are further of oi)inion. that there is 
 neither need nor propriety to look beyond the 
 single bill itself, and the circumstances con- 
 nected with its execution, to ascertain tiie 
 intention of the parties, as the instrument 
 is sufiiciently definite in itself, and contains 
 no reference to any other contract. 
 
 *1S5 
 
 *It is ordered and decreed, that the decree 
 be atfirmed and the appeal be dismissed. 
 
 JOHNSTON, Ch., concurred. 
 
 f DARGAX, Ch. I concur in the judgment 
 of this Court, that this suit is not barred by 
 the statute of lin)itations. I do not concur, 
 liowever. on the ground, that the instrument 
 of the 27th of October, 1887, is a single bill 
 or a specialt.v. In my view, it has none of 
 the characteristics of such an instriunent. ex- 
 cept the form. But when examined in refer- 
 ence to the obligations it creates, it is found 
 that the oitligee is one of the obligors. He 
 binds himself with the other fourteen obli- 
 gors, jointly and severally, to pay to himself 
 the sum of fifteen thousand dollars. Ho 
 binds faim.self with the others in the whole 
 and for the whole sum. We have put that 
 construction upon it. For we have held, that 
 the representative of the obligee is bound 
 to bear a proportionate share of the loss 
 resulting from the in.solvency or absence of 
 some of tiie joint and several obligors. 
 
 This point has been decided at law. In 
 a suit between these .same parties, (Glenn v. 
 Sims, 1 B'ich. 34 [42 Am. Dec, 405],) it was 
 decided, that this instrument was a nullity 
 in that Court. The only ground upon which 
 such a decision could have been rendered, 
 and the plaintiff tui-ned out of that Court, is 
 because it was not a single bill. If it was a 
 single bill, or a sealed note under the Stat. 
 4 Ann, what was the impediment to a suit 
 upon it at law'^ It is clear, that the Court 
 of Law did not regard it in that light, or 
 they would not have granted a nonsuit on 
 the ground that it was a nullity at law. I 
 entirely concur in the view wiiich the Law 
 Court has taken as to the legal construction 
 of the instrument. But even if the case had 
 been erroneously decided at law, it is the law 
 of the case as to these parties. 
 
 But if it be not a single bill or sealed note, 
 what is it? It is certainly not a nullity in 
 every sense. For the Law Court did not so 
 regard it, and recommended the plaintiff' to 
 this Court. The instrument is valid as an 
 
 *196 
 agreement between the parties, ac*cording to 
 the true intent and meaning, deduced from 
 the legal inq)ort of the terms. If it does not 
 fall under that classification of contracts 
 called covenants, it is an anomaly for which 
 I am at a loss to find a name. It is not an 
 assumpsit, for it is under seal. In order to 
 determine its true character, we are to sup- 
 po.se all the obligations which it creates 
 among the different parties, according to our 
 construction, to be reduced to writing, and 
 executed by the parties under their hands 
 and seals. Then, it would be an agreement 
 in writing under seal, imposing upon the 
 parties to it their several duties and obliga- 
 tions: and such an agreement would be, in 
 my view, a covenant. 
 
 But an action at law upon a covenant is 
 subject to the plea of the statute of limita- 
 tions. And it is a rule in this Court to apply 
 the bar of the statute of limitations, wherev- 
 er upon the same cause of action, the plea 
 
 79
 
 *196 
 
 4 RirilARDSOWS EQl'ITY REPORTS 
 
 of the statute would be sustained in a Court 
 of Law. And the plea of the statute of limi- 
 tations, I think, should have l)een sustained 
 by the Court of Equity in tliis case, but for 
 the view which I have taken of some portion 
 of the evidence. 
 
 Glenn had a mortgage of the Glenn's 
 Spring property to secure the payment of his 
 debt ; and also a judgment for the lialance 
 of his demand, which were precedent in tne 
 way of lien to all other claims. There was 
 a judgment in favor of the Bank of the State 
 of South Carolina for a large amount that 
 was pressing upon the Glenn's Spring Com- 
 pany for payment. The company desired to 
 make sale of the Glenn's Spring property to 
 meet the exigency arising from demands of 
 the Bank. Glenn, under these circumstances, 
 consented that the property should be sold 
 In part for cash and in part on a credit un- 
 til the first day of January, A. D. 1S45. He 
 consented to release, and did release, his 
 prior liens in favor of the claim of tlie Bank. 
 He consented that tlie Bank shouhl receive 
 the cash instalment of the sale, and the bal- 
 ance of that claim out of the credit instal- 
 ment, and that the whole of his demand 
 should be paid out of the proceeds of tlie 
 credit instalment falling due on 1st January, 
 
 *197 
 1845. The company, consisting *of tlie same 
 persons with the obligors of the original 
 agreement, (with the exception of Ann Sims, 
 who had forfeited her stock, and had been 
 released from her lial)ility on the agreement.) 
 passed resolutions for the payment of the 
 Bank debt, and of Glenn's claim in the man- 
 ner above stated. The resolutions and the 
 agreement which they carried out. modified 
 the agreement of 2Tth October. 18;>7, as to 
 the time of payment of the balance due 
 thereon. The original, and this new agree- 
 ment, are to be construed in pari materia, 
 and as forming one whole agreement. By the 
 terms of the new agreement, Glenn agreed to 
 receive the balance due him on the 1st Jan- 
 uary, 1845. From this agreement to the 
 filing of the bill, the time was not sutficieut 
 to create the statutory bar. And on this state 
 of facts. I concur in the decree overruling 
 the plea of the statute, and the general al- 
 firmation of the circuit decree. 
 
 Appeal disu 'ssed. 
 
 4 Rich. Eq, 197 
 
 JOHN G. PETTUS v. THOMAS SMITH and 
 
 Others. 
 
 ELIZA SMITH v. JOHN G. PETTUS. 
 
 (Columbia. Nov. ani Dec. Term, 1851.) 
 
 [Fraudulent Conveyances <@==>241.1 
 
 A plaintifif iu a judgment at law, seeking 
 the aid of the Court of Equity, is not bound to 
 show a fi. fa. issued on his judgment and re- 
 turned nulla bona — a ca. sa. may be as well, if 
 not better, adapted to show that the plaintiff 
 could not have satisfaction by legal process, and 
 
 that lie needs the assistance of the Court, of 
 Equity. 
 
 [Ed. Note. — Cited in Attornev (Jenera! v. 
 Baker, 9 Rich. Eq. 534; Eno v. Calder, 14 
 Rich. Eq. 155: Bird & Co. v. Calvert, L'2 S. C. 
 2116; Austin, Nichols & Co. v. Morris. 2:5 S. C. 
 40:;; Miller v. Hughes, lili S. C. 5:!".). 12 S. 
 K. 41J) ; Meinhard Bros. v. Youngblood, :J7 S. 
 C. 238, 15 S. E. 950, Hi S. E. 771. 
 
 For other cases, see Fraudjdent Convevances, 
 Cent. Dig. §§ 694, 096-726; Dec. Dig. C=>2H.l 
 
 \Frauduleni Conveyanres <g=>243.] 
 
 A plaintiff in a judgment at law having his 
 debtor in custody under a ca. sa. ma.v file a 
 bill to have a previous conveyance by the debtor, 
 and a previous judgment confessed by him, set 
 aside for fraud. 
 
 I Ed. Note. — For other cases, see Fraudulent 
 Conveyances, Cent. Dig. § 692 ; Dec. Dig. <g=» 
 243.] 
 
 [Judfnnent (©==>(il7. 678.] 
 
 Every defence, such as fraud, «S:c.. bearing 
 upon the validity of a contract, is concluded by 
 a judgment upon the contract — the creditors of 
 the party defrauded have no right. (»'xce|)t where 
 the fraud was perpetrated with an intent to 
 affect creditors. I to question the validity of 
 the contract, and the part.v defrauded is con- 
 cluded by the judgment. 
 
 [Ed. Note. — For other cases, see .Judgment, 
 Cent. Dig. §§ 1134, 1199; T)ec. Dig. (S=»(jl7, 
 678.] 
 
 [Fraudulent Conveyances <©=5(;G.] 
 
 A purchase made to enable a debtor to re- 
 move his property out of the way of a coming 
 judgment, is fraudulent. 
 
 [Ed. Note. — For other cases, see Fraudulent 
 Conveyances, Cent. Dig. § 169 ; Dec. Dig. ©=> 
 6U.] 
 
 *I98 
 
 [Fraudulent Conveyances <S=>G6.1 
 
 *The assisting a debtor to remove his prop- 
 erty from Florida to this State, and taking from 
 him a confession of judgment here — the object 
 being to defeat the lien of the judgment about 
 to be obtained in Florida, and to obtain a prefer- 
 able lien in this .State, — is fraudulent. 
 
 [Ed. Note. — Cited in Anderson v. Aiken, 11 
 Rich. Eq. 237. 
 
 For other cases, see Fraudulent Conveyances, 
 Cent. Dig. § 169; Dec. Dig. <S=>66.] 
 
 [Fraudulent Conveyances <S=>1S4.] 
 
 Where a sale of negroes is set aside for 
 actual fraud upon creditors, an expenditure 
 made, such as paying a previous mortgage, for 
 the purpose of forwarding the fraud, will not 
 be reimbursed to the purchaser when the sale is 
 set aside. 
 
 [Ed. Note. — For other cases, see Fraudulent 
 Conveyances, Cent. Dig. § 583; Dec. Dig. <©=> 
 184.] 
 
 [Vendor and Purchaser (@==>121.] 
 
 Where a vendee, discovering a defect in his 
 vendor's title to part of the land, sues at law 
 upon the contract and recovers judgment for, 
 and collects the damages sustained, by reason of 
 the defect, he thereby elects to treat the con- 
 tract as valid, and cannot aftenvards sustain 
 a bill in equity to have it rescinded. 
 
 [Ed. Note. — Cited in Godfrev v. E. P. Burton 
 Lumber Co., 88 S. C. 141, 70 S. E. 39G. 
 
 For other cases, see Vendor and Purchaser, 
 Cent. Dig. § 219; Dec. Dig. <S=j121.] 
 
 [Judr/moit <g=>S90.] 
 
 [Cited in Hamilton v. Bredeman, 12 Rich. 
 469, to the point that an arrest (under a ca. 
 
 80 
 
 «S=:=>For other cases see same topic aud KEY-NUMBER in all Key-Numbered Digests and lude.xes
 
 PETTUS V. SMITH 
 
 200 
 
 sa.) is a satisfaction only if it produces pay- 
 ment or the debtor be not released.] 
 
 [Ed. Note.— For otlier cases, see Judgment, 
 Cent. Difi. M l(;s9-17(»l : Dec. Dig. <©=3Syo.] 
 
 Before Johnston, Cli., at Abbeville, June, 
 1851. 
 
 In November. 1S4.5. John O. Tettus recov- 
 ered jiKlKHient. in Florida, against Thomas 
 Smith, for .$4,27S.78. with interest and costs ; 
 and in October. 1848, recovered judfiment in 
 Abbeville district, in this State, on the Flori- 
 da juditiment. The Florida .iud.i,'ment was 
 recovered on a prtJiuissory note, .niven by 
 Smith to Pettus, for part of tlie purchase 
 money of a tract of land. Pending the ac- 
 tion, of Pettus against Snnth in Florida, 
 Smith removed his negroes, about thirty in 
 number, acro.ss tlie line into (Jeorgia. and 
 there executed a bill of sale of the negroes 
 to one Bryan; and Bryan advanced to him 
 $5,000, out of which sum he satisfied a mort- 
 gage, for about .$4.(500, to one P.ellamy, of 
 part of said negroes. A few days afterwards 
 Charles Smith, a brother of Thomas Smith, 
 received from Bryan a bill of sale of the ne- 
 groes, and paid him the .fJ.l.OOO he liad ad- 
 vanced to Thomas Smith, with interest. 
 
 The negroes were brought by. Charles and 
 Thomas Smith into Abbeville di.strict, in this 
 State, where, on January 5. 1846. the said 
 Thomas confessed to the said Charles a judg- 
 ment for $3,121. with interest and costs; and 
 also, in March. 1846. confessed another judg- 
 ment to his mother. Lucy Smith, for .$:{.:i66.- 
 30, with interest and costs. The original 
 indebtedness, on which each of these judg- 
 ments was founded, was bona fide. 
 
 On the South Carolina judgment, of Pettus 
 against Sinith. f1. fa. was lodged. October 
 
 *199 
 23, 1848; and ca. sa. January 25, 184!). * Ten- 
 der the ca. sa. Smith was arrested January 
 29, 1S49 — gave bond for the prison bounds, 
 filed a schedule, and gave notice that he 
 would apply, at the next Fall Court for Abbe- 
 ville, for the benefit of the insolvent debtor's 
 Act. He died two days before the sitting 
 of the said Court. 
 
 The first bill, above stated, was filed April 
 26, 1840; its prayer was. that the sale of 
 the negroes by Thomas Smith be set aside 
 for fraud; also that the judgments confes.sed 
 by him to Charles and Lucy Smith be .set 
 aside for the same cause. 
 
 The second bill, above stated, was a cross 
 bill, filed February 21. 1851, by the adminis- 
 tratrix of Thomas Smith; Its object was to 
 procure a rescission of the contract lietween 
 Smith and Pettus in Florida, for the pur- 
 chase of the land. 
 
 Johnston. Ch. I shall not attempt to state 
 these cases, but shall proceed imniediat«>ly 
 to deliver my judgment, leaving the pleadings 
 and the evidence, which is all in writing, or 
 on my notes, to exhibit and explain the de- 
 tails of the litigation. 
 
 4Kicn.EQ.— 6 
 
 In the first of the two ca.ses.it appears that 
 Pettus, on the 20th of Novend)er. 1S45. ob- 
 tained a judgment at law against Tb.omas 
 Smith, in Florida, for !?4.278.78. bearing in- 
 terest from that date, with costs; but could 
 not obtain payment of it. because Ins debtor 
 had, pendente lite, removed property, neces- 
 sary for its satisfaction, beyond the jurisdic- 
 tion of the Court. He followed the debtor to 
 South Carolina, and sued him ui)on his Flor- 
 ida judgment; and on the 23d of October. 1S48. 
 obtained a judgment upon it in the Court of 
 Law for Abbeville district. But here he en- 
 countered new difficulties. The property re- 
 moved was now claimed by Charles Smith, a 
 brother of tlie debtor, as a purchaser. This 
 
 , was one impediment. If, disregarding the 
 
 I pretended purchase, he proceeded to levy the 
 execution he had obtained here upon the 
 
 j property, he had to encounter another im- 
 pediment, consisting of two judgments con- 
 fe.s.sed by Thomas Smith, which took legal 
 
 , precedence over his Hen. to wit: a judgment 
 confessed to Charles Smith the 6th of Jami- 
 ary, 1846, for .$3,121 with interest an<l costs; 
 and a judgment confessed to Lucy Smith, the 
 
 *200 
 
 *mother of his debtor, the 2d of March. 1846, 
 for .$3,666.30. with interest and costs. 
 
 It is to .set aside the pretended purchase 
 of Charles, and to remove out of his way the 
 two judgments of Charles and Lucv. that 
 this bill is filed. 
 
 Before we proceed to consider the validity 
 of this purchase, and of the judgments of 
 these parties, it is necessary to dispose of 
 an objection interposed at the hearing, (for 
 it was not taken in the answers.) to his gen- 
 eral right to maintain his bill. 
 
 Before the bill was filed. Pettus had arrest- 
 ed Thomas Smith, his debtor, iiy a ca. sa. 
 taken out under the judgment recovered by 
 him in South Carolina; and the defendant 
 was in custody at the time the bill was filed. 
 He had not taken out a fi. fa., or, if he had, 
 it was not returned "nulla bona.'* 
 
 The objection is two fold: 
 
 1. That a creditor coming here, for aid to 
 enforce a legal demand, for which he has a 
 judgment, properly operating at law. nni.st 
 .show that he really needs the a.ssistance of 
 this Court ; and that in this ca.se, the plain- 
 tiff having omitted to take out a fi. fa., and 
 causing it to be pro.secuted and returned, 
 has not shown that there was not a full 
 remedy for him at law. 
 
 I have an impression that some of the cas- 
 es quoted in suppcn-t of this objection were 
 strained beyond principle. The principle is 
 sound, that a party holding a legal demand, 
 and especially if he hold a legal remedy for 
 it, Is not entitled to call on this Court to 
 aid him, unless he can show that he needs its 
 assistance. He mu.st state such a case: and, 
 if recpiired, he must give reasonable proof 
 of its existence. But a party undoubtedly 
 
 81
 
 *200 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 does need equitable assistance, if his debtor 
 is insolvent, except as to property so covered 
 or encumbered that it cannot be reached 
 without the intervention of this Court. The 
 only question is, whether there is any princi- 
 ple restricting the proof of the insolvency to 
 any particular method. Can it be proved 
 only by the actual issuing and the actual re- 
 turn of process for the seizure and sale of 
 property? Suppose that, before a fi. fa. can 
 
 *201 
 be issued, or after the *issue of a fi. fa. and 
 before it is returnable, a fraud is discovered, 
 consisting in a combination of third persons 
 with the debtor, by which the property is 
 secreted, and about to be removed out of 
 reach, can no application be made to this 
 Court until the fi. fa. is returned, and the 
 fraud actually and perhaps irremediably 
 completed? 
 
 The true doctrine, it appears to me, is, 
 that the party asking the aid of equity, in 
 such cases as this, is bound to show that, 
 v.ithout fault on his part, and after the ex- 
 ercise by him of reasonable diligence, he has 
 no means of obtaining satisfaction of his 
 claims without the aid of this Court ; and, 
 as to the insolvency of his debtor, he is bound 
 to make such proof only as, under the cir- 
 cumstances, is reasonable and satisfactory — 
 such proof of insolvency as, in all other cas- 
 es, is competent and satisfactory, and no 
 more. 
 
 In this case a ca. sa. was as well adapted 
 to test whether Thos. Smith was possessed 
 of any property beyond that which he had 
 conveyed away as a fi. fa. ; and indeed bet- 
 ter. Besides the ordinary information as to 
 the existence of such property, as the sher- 
 iff or any friend of the plaintiff might hap- 
 pen to possess, it was calculated to draw on 
 the conscience of the debtor for such addi- 
 tional information as he alone could afford. 
 I am therefore of opinion, that the deficiency 
 of the plaintiff''s legal remedy, and his need 
 for the interference of this Court, is made 
 out in this case by even better and more sat- 
 isfactory evidence than would have arisen, 
 if a fl. fa. had been issued and returned, as 
 required by the objection. 
 
 2. The second branch of the objection is 
 that the plaintiff's legal demand, which is the 
 only just foundation of his application to 
 this forum, was satisfied and extinguished at 
 the time he filed his bill ; and therefore he 
 came here without cause. 
 
 The argument i.s, that the debtor being un- 
 der arrest at the filing of the bill, his debt 
 was at that juncture of time satisfied and ex- 
 tinguished ; so that no bill could be exhibited 
 in that posture of affairs to enforce the pay- 
 ment of that debt. 
 
 *202 
 
 *This Court looks at the substance of 
 things, and not at n)ere forms and technical- 
 ities. It may be true, that if an action of 
 
 82 
 
 debt had been brought, in a Court of Law, 
 upon the judgment, while the debtor was in- 
 carcerated by virtue of process issued under 
 it, the suit might have been stayed until the 
 debtor should be released. But such order, 
 or pi'actice, if made or adopted, must be re- 
 ferred rather to the administrative than to 
 the purely judicial functions of the Court. 
 
 If the debtor made no objection on ac- 
 count of the arrest to the suit's proceeding, 
 the Court could not notice it, and the suit 
 must proceed until tlie period of trial upon 
 the merits arrived. Then, for the first time, 
 the question now made before i -whether 
 the arrest was a satisfaction <_, ..> debt — 
 could possibly be presented for the decision 
 of the Court. 
 
 And I apprehend, a Law Court as well as 
 this Court, must decide that question in the 
 negative. 
 
 An ai'rest is a merely conditional satisfac- 
 tion. It is a satisfaction if it produces pay- 
 ment, or if the debtor be not released. At 
 common law, if the debtor died in custody — 
 that is to say, if the creditor never released 
 him — the debt was extinguished. But if it 
 were shown that the arrest terminated other- 
 wise than by the death of the debtor in cus- 
 tody, and without a payment of the demand, 
 it was not satisfied or extinguished. 
 
 Arrests stand upon the same footing as lev- 
 ies upon property. While a levy is undispos- 
 ed of, the debt is suspended. There is a qual- 
 ified or conditional satisfaction ; but where 
 it is shown that the levy has not produced 
 satisfaction, the creditor may proceed with 
 his execution, or by suit upon his judgment, 
 for what remains due to him. I have used 
 the words satisfaction and conditional satis- 
 faction in confornuty to common usage ; but 
 the true view, upon ])rinciple, is that neither 
 a levy nor an arrest has any direct influence 
 upon the debt, so as to extinguish or satisfy 
 it, either conditionally or unconditionally. It 
 suspends the remedy, but the debt remains 
 until actually satisfied. 
 
 *203 
 
 *I must therefore overrule the objection, 
 and proceed to consider the case before me 
 upon its merits. 
 
 And in adjudicating upon Pettus' bill — 
 which is the one I am now considering — I 
 nuist regard his claim (now in judgment, 
 both in Florida and in this State,) as a good 
 legal demand, and as valid and effectual in 
 law as any other legal claim. 
 
 While the contract subsists, it is conclu- 
 sive in law not only against Thomas Smith, 
 the debtor, but against the other defendants 
 to this suit, even though it should have tlie 
 effect of diminishing their means of being 
 paid as his creditors. 
 
 Nor can either Thomas Smith, (now repre- 
 sented by his administratrix,) or the other 
 defendants, his creditors, under the bill which 
 I am now considering, raise an objection out
 
 PETTIS V. SMITH 
 
 205 
 
 of <xiuitable ciroum>>tancos. connected with 
 the purchase of lands, upon which the plain- 
 tiffs demand arose, to prevent the enforce- 
 ment of tile di-mand Itself. 
 
 Any fraud that may have existed in the 
 orij^'inal contract, all oi)pression or usury, ev- 
 ery thinj,' bearing upon the validity of the 
 contract— all tlu-se wen- as availalile in the 
 Court of Law of Florida, where the contract 
 was sueti on, as they could have been in e<i- 
 uity ; and the judjjment of that Court con- 
 cludes Thomas Smith upon all stich points. 
 As for his creditors, they never had the rij,'ht 
 to raise any objections of the sort. I'icliett 
 V. I'ickett, li Hill. Kq. 471. 
 
 Creditors of a party defrauded have no 
 ri^dit — even though the fraud have the effect 
 to dimitdsh his means of paying them — to look 
 into the fraud or unravel it. It is for him. and 
 for him alone, to do so ; and if he chooses to ac- 
 ipiiesce in tlie fraud, or has suffered himself 
 to be concluded of his right to investigate or 
 undo it. his cnnlitors must be content to 
 .ibide by the legal rights remaining in him. 
 as they happen to stand. In one case, and 
 only one. that now occurs to me. has a cred- 
 itor a right to ask redress in relation to a 
 fraud upon his debtor; and it is, where the 
 fraud was perpetrated, not only with the 
 view of injuring the debtor, but also with an 
 intent to affect the creditor himself; 1. e. 
 *204 
 
 where *the creditor was the object of the 
 fraud. In that cas(>. perhaps, as well as in 
 the familiar case where the debtor colludes 
 with a third person to defraiwl his creditor, 
 tlie creditor has a right to claim redress. 
 I'.ut with regard to frauds intended to light 
 on the debtor alone, and when his creditors 
 were not within the contemplation of the au- 
 thor of the wrong, and are only affected con- 
 stHiuentially by it, society could not move on 
 upon any princijile that would allow them to 
 interfere, forensicaily, in such cases. I ruled 
 this doctrine in a case at Sumter, some years, 
 ago, (perhaps 1840.) between the Bank of 
 Camden and Stuckey, and have seen no rea- 
 son since to change my opinion. 
 
 I am, then, no more at liberty. In this 
 Court, where Pettus comes to enforce his 
 judgment, to look behind it into the validity 
 of the contract on which it was founded, than 
 was the Law Court, in this State, when he 
 sued before them upon his Florida judgment. 
 
 Then, to take up the purchase set u|i by 
 Charles Smith. Itegarding this transaction 
 in the abstract light of a mere purchase', an<l 
 not, for the present, as a means afforded to 
 clear out the prop«'rty from Florida, and be- 
 yond the scope of I'ettus's ap|u-oa<hing ju«lg- 
 ment, I can have no hesitation, under the evi- 
 dence, to iironounce it colorable. Indeiiend- 
 ently of the statute of tJeorgia, where the 
 transaction took place, [See 2 Kelly H. 1,] 
 the circumstances stated by the witnesses, 
 and winch I need not recai>itulate, impress 
 
 that character upon it. The witnesses are 
 not impeached, and I have no otlicial right 
 to disregard their testimony; and. if that 
 testimony he true, there can be but one oiiin- 
 ion, it appears to me, upon the subject. 
 
 Hut, if this were doubted, and even if It 
 appeared that a real chnng*' of property was 
 intendi'tl. still it is very plain, that the pur- 
 cha.se was matle to enable Thomas Sndth to 
 remove his property out of the way of the 
 coming judgment. In such cases, it matters 
 not whether a consitleration, and even a full 
 consideration, (Ix)wry v. Pinson, 2 Hailey 
 Rep. ;51'.S [23 Am. Dec. 140].) was paid for the 
 Iiroperty or not. Where mere is prima facie 
 
 •205 
 
 evidence of bona fides, though ♦a full consid- 
 eration be not paid, that circumstance is im- 
 material, and cannot shake the contract, un- 
 less the consi<leration is so insnthcient as to 
 refute the prima facie evidence of fairness. 
 (Kyan v. Pull. .Jannson v. Keitt. .'! Strob. Va\. 
 '.>.■>. I And so, on tlie other hand, when' there 
 is evidence of intentional fraud, a party can- 
 not rescue the transaction from its true char- 
 acter or its consecpieiices, by paying ji full 
 price, though a full price, by it.self, be good 
 evidence of fairness. 
 
 I held in Picliett v. Pickett, (2 Hill Ki]. 
 471,) that the assisting a debtt>r to re- 
 move his property, so as to obtain an advan- 
 tage out of that property, was a fraud, re- 
 lievable in this Court; and I held that tlie 
 party should be deprived of the advantage 
 he had obtained. Tlie advantage acquired in 
 that case was a preferable lien; just as iu 
 this case. And, if it be a fraud to remove 
 property out of South Caroliiiji. and subject 
 it to a lien created to take priority of liens 
 existing here, is it less a fraud to bring proji- 
 erty from another State into this, with a 
 similar purjiose? 
 
 If the only wrong con.sisted in the color- 
 able purchase, a recent decision of the Court 
 of Errors, (.Tohiiston v. Pank. ;! Strob. Kq. 
 :WO.i says that the only conse<|uence of set- 
 ting the purchase aside is. that the wrong- 
 doer shall still be allowed to come in. with 
 other creditors, with whatever demands he 
 may have, ((»f course according to priority of 
 lien.) to be paid out of the property consider- 
 ed as the property of the original owner. 
 I shoulil be bound to apply the doctrine of 
 that case to a similar case; and this would 
 be a similar ca.se. so far as Charles Smith is 
 concerned, if his whole offence consisted in 
 taking a colorable conveyance. 
 
 Put. in my view, that was not the limit 
 of his offence. It consisted in depriving Pet- 
 tus of his lien in Florida, and bringing the 
 property <landestinely within the scope of an- 
 other and preferable lieu of his own. 
 
 Just as in Pickett v. Pickett, this new Hen 
 did not exist at the time the property was 
 translated. Put the history of the events 
 satisfies me that it was iu contemplation. If 
 
 83
 
 *2J5 
 
 4 RICHARDSON'S EQUITY RERORTS 
 
 the colorable bill of sale would not suffice — if 
 
 *206 
 that was endangered — if the property ^should 
 be challenged as really Thomas Smith's — 
 then, at the worst, it was to be made liable 
 to Charles. 
 
 Now, to such a case as that, I imagine the 
 doctrine of the case to which I have referred, 
 was never supposed by any person to be ap- 
 plicable. There is no way of undoing the 
 fraud in such a case but by a decree that tne 
 lien, within the scope of which the property 
 was improperly brought, shall be postponed. 
 The very essence of the fraud is in the at- 
 tempt to subject the property to that lien ; 
 and if, while you censure the fraud, your 
 decree gives efficacy to the lien, it confirms 
 and effectuates the wrong. 
 
 I suppose, then, that the judgment con- 
 fessed to Charles Smith should be postponed, 
 until Pettus obtains satisfaction of his debt. 
 And this opinion would not be altered by the 
 admission made at the hearing, that that con- 
 fession was taken for a debt really due to 
 him. 
 
 My decree would be different with respect 
 to the judgment confessed to Lucy Smith. 
 It is not only admitted that this confession 
 was taken for a debt really due, but there is 
 not a shadow of proof calculated to excite 
 even a suspicion that either she or her agent 
 — now her executor — had any connexion with 
 the transfer of the proi)erty of Thomas from 
 Florida to South Carolina. Aitkeu ads. Bird, 
 (.Rice Eq. 73.) 
 
 I have thus indicated what would be my 
 decree if the bill of Fettus were the only one 
 before me. 
 
 But, when I turn to the cross bill, I find a 
 case which, in my judgment, totally super- 
 sedes such a decree. 
 
 The case which it presents is shortly this: 
 Thomas Smith purchased from I'ettus, at the 
 price of .$10,500, a body of land, supposed to 
 lie within the county of Jefferson, in Florida, 
 to oidy a portion of which Fettus had an ex- 
 isting title. The purchaser paid two thou- 
 sand dollars of the price in cash, and gave 
 his three notes for the residue, Avhich was 
 $8,500, due in one, two and three years, and 
 was let into the possession. By the contract, 
 titles wei'e not made, but I'ettus was to per- 
 fect his title and make a conveyance. 
 *207 
 
 *The valuable land, which was the object of 
 the purchase, lay towards the Georgia line. 
 It turned out that it lay within the limits 
 of Georgia, and she ran her State line so as 
 to include it. Smith was evicted and lost the 
 land; leaving in his hands a poor and com- 
 paratively worthless portion, lying in Flori- 
 da. Pettus sued him on the notes as they 
 became due. He set up, by way of discount, 
 the land which had been lost, and thus de- 
 feated the two first notes. The last note was 
 in suit, when Thomas Smith removed his 
 negroes, (as has been stated,) tendered back 
 
 84 
 
 the possession, and abandoned the land. On 
 that note Pettus recovered his Florida judg- 
 ment. Under it, he sold the land abandoned 
 by Smith, purchased it himself, and is now 
 in possession. It is with that judgment he 
 has followed Smith, and obtained his judg- 
 ment in Abbeville. 
 
 The cross bill is filed for a rescission of the 
 contract. It is filed by the widow and ad- 
 ministratrix of Thomas Smith. His other 
 distributees are not parties. 
 
 I have hesitated, not whether the contract 
 should be rescinded, but whether the proper 
 parties for a rescision were before the 
 Court. But my impression is, that as the 
 title was never in Thomas Smith, and never 
 descended to his distributees; and as the 
 title for so much as Pettus ever owned, or 
 could have conveyed, is still in him; there 
 is no need for a re-conveyance on the part 
 of the vendee or his heirs ; a rescision may 
 be decreed at the Instance of the personal 
 representative, who is competent to reclaim 
 so much money as has been paid on the con- 
 tract of purchase. 
 
 On the merits of the application, I do not 
 hesitate. Nothing adverse to the right of re- 
 scision is concluded by the judgments. The 
 judgment here only affirms that the judg- 
 ment in Florida is a good legal judgment; 
 not liable to any defence at law. It cannot 
 be opened or re-examined upon any point of 
 law ; nor can any matter, which could have 
 been' urged in a Court of Law, or noticed by 
 a court of law, to prevent its being obtained, 
 be now urged against it. 
 
 It may be affirmed, in short, that no mat- 
 
 *208 
 
 ter or question, of *which Courts of Law 
 have jurisdiction, can be now set up either 
 against the Florida judgment, or that Ity 
 which it was renewed in this State. All 
 such matters and questions ai'e covered and 
 concluded by those judgments as res judi- 
 cata. 
 
 But no matter can be res judicata, or con- 
 cluded as such, of which the Court from 
 which the record comes has not jurisdiction 
 or cognizance. Where there is no jurisdic- 
 tion there can be no adjudication, express or 
 implied. 
 
 And this may be unhesitatingly affirmed of 
 Courts of Law in relation to this question of 
 rescision. The Courts cannot have decided 
 that the circumstances did not authorize a 
 i-escision. or that the vendee had no right to 
 oup. because the question could not be made 
 before them. 
 
 So far from the judgments of the Courts of 
 Law in Florida having prejudiced this right, 
 the right arises in conseiiuence of their de- 
 cisions, and is confirmed by them. 
 
 It is by the solemn judgments of those 
 Courts that we learn that the purchaser has 
 lost, and been evicted from the real objects 
 of his purchase. That is decided, and decid-
 
 TETTUS V. SMITH 
 
 ■211 
 
 <?d between those parties, and it is f(inclnsive 
 of tlie fact, as let ween tlieni. 
 
 Tills i)urciias»M' is not iMnnul to altide by 
 the remnant of his pnrcliase. 
 
 It is decreed that tlie eontract of imrcliase 
 of the said land, referred to in the plead- 
 ings, be set aside and rescinded ; tliat John 
 (i. Tettiis, the vend(»r, do account for such 
 sums of money as lie ina.v have received up- 
 on said purchase, (with interest according: to 
 the hiws (if Florida :i and that the adminis- 
 tratrix of Tliomas Smitli do account for the 
 rents of said land wliile in his occu|iation: 
 and tiiat these two be set off. one aiL'ainst 
 tlie other, and the balance stnnk and report- 
 ed l)y the commissioner. 
 
 It is (u-dered tliat tlie said John G. Pettus 
 be restrained fiom enforcing his .iudgments, 
 mentioned in the pleadings, until the furtlier 
 order of the Court, upon the coming in of 
 the report, when a final decree may be pro- 
 po.sed. The question of costs reserved until 
 tliat deeree is made. 
 
 *209 
 
 *J. ii. Tettus, complainant in the first and 
 defendant in the sec«md of tlie above cases, 
 appealed from the decree of tlie riiancellor 
 in said cases, and moved this Court for the 
 reversal of the same and for a deci-ee in his 
 favor, upon the following grounds, to wit: 
 
 1. Because the Florida .iudgment was con- 
 clusive as to all matters embraced in com- 
 plainant, Kliza Smith's bill for relief. 
 
 L*. Hecau.se the agreement or contract be- 
 tween the parties has been executed, or so 
 far executed and adjusted between them, 
 that this Court cannot now consider and re- 
 view the same for the purpose of rescision. 
 as the parties cannot now be placed in statu 
 quo. 
 
 3, Because the agreement or contract has 
 been affirmed by the complainant, Kliza 
 Smith's intestate, and no longer is open and 
 subject to litigation in this Cimrt. 
 
 4, Because Thomas Smith, complainant's 
 intestate, by electing his remedy and his fo- 
 rum, and by other circumstances, has waived 
 and lost his riglit to a rescision of the con- 
 tract, or to any other relief to bt' had in this 
 Court. 
 
 r., B(>cause by laches and iiie(|uitable con- 
 duct, Thomas Smith, the intestate, deju-ived 
 himself of the interposition and aid of this 
 Court. 
 
 <!. Because complainant's intestate. Thom- 
 as Smith, has been guilty of such fraudulent 
 acts in conjunction with Charles Smith, as 
 precludes liis administratrix, the complain- 
 ant, from obtaining relief in this Court by 
 rescision or otherwise. 
 
 7. liecause Cliarles Smith, substantially 
 and in fact, being the party asking for the 
 rescision pra.ved, and who alone will be bene- 
 fitted by it. and who is a fraudulent purchas- 
 er, colluding with the .said Thomas in the 
 fraud, this Court will uot exert its ordinarv 
 
 or extraordinary powers in his liehalf and 
 for his Ix'ueflt. 
 
 S. Because there is no e<piity in comiilain- 
 ant Eliza Smitli's bill, and the dwree is gen- 
 erally against the principles of law and equi- 
 ty, as well as the testimony of the case. 
 
 P. Becau.se the Cliaiicellor, in his decree, 
 210 
 directs J. G. Pettus *to account for the casli 
 payment he received from Thomas Smith 
 on the contract, with interest, while the ail- 
 ministratrix of Thomas Smith is only riNiuir- 
 ed to account for the rents of the land while 
 in his. Thomas Smith's, occuiiatioii. Where- 
 as, the decree should have directed, in the 
 event of rescision, not only that Pettus 
 should account for the judgments he recov- 
 ered against Thomas Smith, and tlu' ca.sh he 
 received in payment on the contract, but 
 that Eliza Smith, administratrix , should 
 account for the j»idgm«'iit her intt^sfate recov- 
 ered from Pettu.s in the suit on the bond for 
 titles, and al.so for the full value estimated 
 at the time of purchase of the tract of pine 
 land, containing L'SO acres, to which Pettus 
 made Smitli good titles, and which was sold 
 by the sheriff of JefTer.son county, Florida, 
 in 1846, to pay outstanding and older judg- 
 ments than Pettus' again.st the said Thomas 
 Smith. 
 
 Noble, Thomson, for appellant. 
 Perrin, McGowen, contra. 
 
 The opinion of the Court was delivered by 
 
 JOIINSTOX. Ch. It appears that I over- 
 looked a fact in my circuit decree, upon 
 which the whole case must turn. 
 
 1 suppo.sed that T. Smith had defended 
 himself against the actions brou'iht by Pet- 
 tus upon his two first notes, by setting up the 
 value of the land which he lost, by way of 
 fliscount. A fuller examination of the evi- 
 dence shows that this was a mistake. When 
 sued on the notes, he sued Pettus on the bond 
 for titles: and obtained judgment for the 
 value of the land taken off. This judgment 
 exceeded the amovuit of the notes sued. on: 
 and after .setting it off against the recovery 
 of the notes, be comiuMled Pettus to pay the 
 excess, amounting to about $L'.r)<M>. 
 
 It appears to the Court this was an affirm- 
 ance of his contract, and he was not at liber- 
 ty afterwards to rescind it. 
 
 It is not nec(\ssary to multiply authori- 
 ties on this point. The doctrine is well ex- 
 pressed in Brown v. ^^■itteI•. (10 Ohio i{. 142): 
 "A purchaser, from a vendor, who cannot 
 
 *211 
 make a title, has his choice of *remedies. 
 He may sue at law to recover damages for 
 the nonperformance of the contract; or, he 
 may seek, in Chancery, a specific perform- 
 ance, as near as the vendor is capable of 
 performing; or he may rescind, by an ac- 
 tion at law for the purchase money ; or in a 
 
 85
 
 *211 
 
 4 RICHARDSON'S EQUITY RErORTS 
 
 bill in equity. He cannot do lioth. He must 
 select one of the alternatives, either to en- 
 force or rescind." 
 
 It appears to the Court that when the ven- 
 dee in this case discovered the defect in his 
 vendor's title, and his inability to make a 
 good conveyance of that portion of the land 
 which constituted the great object of his pur- 
 chase, he was then in a condition which en- 
 abled him to elect, and bound him to elect, 
 either to enforce his contract or rescind it. 
 He enforced it by claiming and collecting by 
 process of law, damages in place of the land 
 taken off; and retaining his conveyance of 
 that which had been conveyed to him. By 
 this means he obliged himself to take the 
 vendor's conveyance for such portion of the 
 land not taken off as remained to be con- 
 veyed. 
 
 Besides, if he were not absolutely conclud- 
 ed by this election, the delay in demanding 
 a rescision even after he was sued in this 
 State, would go very far to impair liis right 
 to such a decree. 
 
 We are all of opinion that the decree made 
 for a rescision in this case should be set 
 aside ; and it is so ordered and decreed. 
 
 We are satisfied that the decree which the 
 Chancellor indicated, as the one he would 
 have made ui)on the bill of Pettus, if no 
 cross-bill had been filed, is the proper one. 
 
 It is said, however, that in setting aside 
 Cliarles Smith's purchase of the negroes, he 
 should be allowed a lien for the amount paid 
 on Bellamy's mortgage. We are of opinion 
 that though the purchase is good, as between 
 Charles and Thomas Smith, and that there- 
 Tore Charles will be entitled to claim that 
 amount, and indeed the whole balance which 
 may arise from the negroes, after payment 
 of other debts ; yet as between himself and 
 the creditors suing him, he is not entitled to 
 any reimbursement of the amovint thus ex- 
 pended. This is not a constructive or implied 
 fraud ; but actual dolus malus. The sum was 
 
 86 
 
 *212 
 
 expended as a *means of getting the pioperty 
 out of Florida, for the purpose of evading 
 Pettus' claim and obtaining a preferable lien ; 
 and certainly an expenditure for the purpose 
 of forwarding a fraud, is not a suitalile lien 
 on the fund or property abstracted from the 
 creditors defrauded. 
 
 It is ordered that the cross-bill be dismis- 
 sed. 
 
 That the purchase by Charles Smith of the 
 negroes mentioned in the pleadings in the 
 other case, be set aside, as against the credi- 
 tors of Thomas Smith. 
 
 That Charles Smith deliver up such of 
 said negroes, with their increase, as he has 
 not alienated, to be sold by the commissioner ; 
 and that he account for their reastinable 
 hire since his said purchase. That he also 
 aceoinit for the value of such of the said 
 negroes as he has alienated, with hire up to 
 the time of alienation, and interest after- 
 wards. 
 
 That out of said sales, hire and interest, 
 the several judgments subsisting against 
 Thomas Smith, be paid according to their le- 
 gal priority, excepting that of Charles Smith, 
 which must be postponed until the rest are 
 satisfied. 
 
 That said Charles Smith do pay the costs 
 of the parties to the suit instituted l)y Pettus. 
 
 And that, if there remain any of the pro- 
 ceeds of said slaves, hire and interest, the 
 same be paid to said Charles Smith. 
 
 Oi'dered that the matters of account be re- 
 ferred to the commissioner, with leave to i"e- 
 port any special matter. 
 
 Also, ordered that the parties have leave 
 to apply, at the foot of this decree, for any 
 further orders that are or may become nec- 
 essary in tlie case. 
 
 DUNKIN, DARGAN and WARDLAW, CC, 
 concurred. 
 Decree reversed.
 
 CASES IN EQUITY 
 
 AROUEn AND DETERMINKI) IN' THE 
 
 COURT OF APPEALS 
 
 AT CHARLESTON, S. CAROLINA— TAXUARY TERM, 1852. 
 
 Chancellors Present. 
 
 Hon. job JOHNSTON, 
 B. F. DUNKIN, 
 " G. W. DARGAX, 
 " F. H. WARD LAW. 
 
 4 Rich. Eq. *2I3 
 
 *R. G. NORTON, Ordinary, v. LEGATEES 
 
 xVND CREDITORS OF S. R. GILLI- 
 
 SON, Deceased, ct aL 
 
 (Charleston. Jan. Term, 1852.) 
 
 [Executors and Adiiiiuistratois €=54r).'>.] 
 
 L'nder the 7th section of the ordinary's Act 
 of 1839, the ordinary is entitled "to five per 
 cent, of the value of tlie estate," talven charge 
 of by him as derelict, only when ho has per- 
 formed the duties prescribed in tliat section. 
 Where, instead of selling the wliole estate, pay- 
 ing the creditors, and depositing; the net bal- 
 ance in bank, he applied to the Court for in- 
 structions, and. by orde;* of the Court, sold so 
 much of the estate only as was necessjiry to 
 pay the debts; — held, that he was entitled to five 
 per cent, of so much of the estate as he had 
 sold and no more. 
 
 I Ed. Note. — For other cases, see Executors 
 and Administrators, Cent. Di?. S§ 208!)-'_*lO(;, 
 •J108: Dec. Dig. <S=54!)o.] 
 
 [blxecutnrH and Adwinixiratnr.'i <S=>40().1 
 
 Where the ordinary takes charge of. and 
 administers the estate of a testator, under the 
 Act of ]S4ti, he is not entitled "to five per cent, 
 of the value of the estate;" he can claim only 
 the commissions of an executor under the Act 
 of 1789. 
 
 fEd. Note. — For other cases, see Executors 
 and Administrators. Cent. Dig. § 2111; Dec. 
 Dig. e=»496.] 
 
 *214 
 
 ♦Before Diinkin, Ch., at Beaufort, Febru- 
 ary, 1851. 
 
 Dunkin. Ch. Samuel R. Gillison left a 
 will devising and betiueathing his estate to 
 
 his widow and children, in the projiortions 
 and with the limitations therein specified. 
 Ills son, Thomas S. Gillison, and the Hon. 
 W. F. Colcock, were appointed executors, the 
 former of whom qualified and the latter re- 
 nounced. 
 
 Thomas S. Gillison has since died intes- 
 tate. The ordinary has taken charge of both 
 e.states as derelict. 
 
 The personalty of Saml. R. Gillison was 
 api>raised at one hundred and eight thousand 
 three hundred and ten dollars sixty-six cents. 
 The real estate consisted of several planta- 
 tions, the value of which does not appear. 
 .Vniong other provisions of the will was the 
 following, viz: "To my son Thomas, I give, 
 devise and bequeath an equal share of my 
 negroes, &c. ; also, the sum of five thousand 
 dollars, if so much be necessary, to be 
 raised (if no cash is on hand at my death) 
 by keeping all my estate together, except 
 what is given to my wife, until that sum 
 can be realised from the planting income. 
 To have and to hold the said negroes, other 
 personal property and money, on the follow- 
 ing tru.sts, that is to say: — In trust to invest 
 the said money, if so much be neces.sary, in 
 the purchase of a plantation, to be held and 
 luaiuiged by him, &c., in trust for the sole 
 and separate use of my daughter, Adela, 
 (.Mrs. Lartigue,) and the issue of hor present 
 or anj- future marriage." 
 
 The testator died in 1847. At the last 
 
 C=>for other caues see name topic and KEYNU.MBEH in all Key-Numbered Digests and Indexes 
 
 87
 
 *214 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 sittings of this Court, it seems that an order 
 was made, that the ordinary should sell so 
 much of the testator's estate as would pay 
 his debts and raise the sum of five thousand 
 dollars bequeathed, in trust, for Mrs. Larti- 
 gue. The ordinary has reported a sale of 
 personalty amounting to .^I'T.OOS, and of real- 
 ty to the amount of .$7.s5, altogether $27,793. 
 From this sum he has deducted auctioneer's 
 commissions, amounting to .$694.83, and he 
 claims to deduct a further connnission of five 
 per cent on the whole value of the testator's 
 personal estate, .$]0.s,310.(j(), and also on so 
 
 *215 
 much of *the real estate as he had sold, 
 this five per cent, amounting, liy his state- 
 ment, to the sum of .$5,447.78. It will thus 
 be perceived, tliat from the sales made under 
 the order of this Court, amounting to $27,- 
 793, a deduction for commissions is claimed 
 of $0,144.61, nearly one-fourth of the sales, 
 and the counsel for the ordinary, in his ar- 
 gument, insisted that the claims for commis- 
 sions liad been considerably understated : 
 and if the argument is sound, the Court is of 
 opinion that the deduction is legitimate. 
 
 It is said, that the Act of IKV.), allows the 
 ordinary, as a compensation, five per cent, 
 of the value of the estate; that the Act 
 of 1846 is only amendatory of the Act of 
 
 (a) In the case Ex parte Norton, the circuit 
 decree is as follows: 
 
 DUNKIN, Ch. The petition states that Mary 
 A. Roberts died intestate, ou the ei'j,lith <lay nf 
 October, 1850: that the intestate owned eonsid- 
 erable personal estate, and, aiiKiny; the rest, 
 eighteen slaves, appraised at five thousand six 
 hundred dollars, besides perishable jiroiiertv. ap- 
 praised at ten hundred and tifty-five dollars; 
 that on the eleventh day of ()ctol)er. the peti- 
 tioner took possession of the estate as derelict, 
 under the provisions of the Act of 18.'>y ; that 
 he has sold the perishable property for eleven 
 hundred and forty dollars — he believes this sum 
 will be more than sutiieient to pay all the debts 
 of the intestate. The petitioner further states, 
 that the six months during which he is required 
 by the Act to keep the estate together, will not 
 expire until three days after the sale day in 
 April. The prayer of the petition is, that per- 
 mission may be granted to sell the estate on the 
 sale day in April, and that the petitioner may 
 be permitted, after due notice, to make dis- 
 tribution of the proceeds of the sale amongst 
 the parties entitled thereto. 
 
 The Act of 1839 provides that where any es- 
 tate shall be left derehct. the ordinary shall 
 collect and take charge of the same for the 
 period of six months, after which time, if ad- 
 ministration shall not be sooner applied for, he 
 shall sell the same, after due public notice, ei- 
 ther for cash, or upon a credit of six months, 
 and after payment of the debts of the deceased, 
 shall deposit in the Bank of the State of South 
 Carolina, or in some one of the branches, the 
 net proceeds, to the account of the estate to 
 which it belongs, and shall file in the office of 
 the Clerk of the Common Pleas of his district. 
 a certificate of such deposit ; and to the end 
 that he may so collect such estate and effects, 
 be shall have power to institute and maintain 
 all necessary legal proceedings; and, for the 
 services aforesaid, he shall be entitled to five 
 per cent, of the value of the estate. 
 
 It is quite manifest that the Legislature con- 
 templated that but few estates, and those of iu- 
 
 88 
 
 1839. and that the same commission should 
 be allowed. In the case of Ex parte K. (i. 
 Norton, ordinary, in the matter of Mary A. 
 
 *216 
 
 Roberts's estate. («) *to which I refer for my 
 views of tliese Acts, I have said that the 
 legislature never contemplated that such 
 estates as this would be derelict. If Samuel 
 R. ( unison had died intestate, the ordinary, 
 by the Act of 1839, would take charge of his 
 estate, sell the whole of it in six months, 
 deposit the proceeds, probably, amounting to 
 one hundred and forty thousand dollars, in 
 bank, and for this service claim a connnis- 
 sion of seven thousand dollars, (not to men- 
 tion the three thousand five hundred dollars 
 which he now insi.sts to deduct for auction- 
 eer's connnissions). lie has no judgment to 
 exercise, no responsibility to assume. He 
 has not even the trouble to look out for a 
 purchaser. He receives seven thousand dol- 
 lars for doing what the best brolcer iu 
 
 considerable amount would fall under the charge 
 of the ordinary as derelict : it is manifest, 
 among otiier things, from the small amount of 
 the ordinary's bond, and the liberal amount 
 of eouunissions allowed. The exjierience of a 
 very few years, however, has exhiltited an en- 
 tirely different result from that wldch was 
 anticipated. The ordinary of Heanfort district 
 gives bond in ten thousand dollars, according 
 to the first section of the Act of l.s:!".t. A single 
 estate of which he has charge as ilereliet. was 
 sold for upwards of one hundred and twenty 
 thousand dollars, on which he is supposed to be 
 
 *216 
 entitled to a t-onunission of *five per cent. In 
 several of the districts, a large jxirtion of the es- 
 tates ar(> becoming derelict. ^Irs. Roberts died 
 intestate on the 8tli October. Three days af ft r- 
 wards. her estate was iu the hands of the t)roi- 
 uary as derelict. 
 
 But the Legislature have vested no authority 
 in the ordinary to make distribution of an intes- 
 tates estate. They have i)rescribed certain du- 
 ties which he is to perform, and his functions 
 then cease. The Act directs that, after the sale 
 of the estate, he shall deposit the proceeds in 
 bank, and file a certificate of deposit with the 
 Clerk of the Common Pleas. 
 
 What authority has the Court of E(iuity to 
 declare that the Ordinary shall disregard these 
 plain provisions of the Act'/ Even where a 
 will was left, directing the testator's estate to 
 be divided among his widow and children, and 
 the estate was in charge of the ordinary as 
 derelict, he was obligeil, under the Act of 18;59, 
 to sell the whole estate and deposit the proceeds 
 in bank. To provide tor this evil, the Act of 
 184() was passed. The Court had no power to 
 interfere. But the Act of 1846 is restricted to 
 the particular case and it is well known, in the 
 history of the legislation on this subject, that 
 an amendment to extend the provisbjn to cases 
 of intestacy was voted down almost unanimously. 
 
 It is very apparent that the legislation, ou 
 the subject of derelict estates, requires material 
 revision, but any irregular interference on the 
 part of the Court will only tend to aggravate 
 the evil. 
 
 In the petition before the Court, the ordinary 
 requires no direction. The provisions of the Act 
 are plain and simple, and he has only to pursue 
 them. I think the petition must be dismissed ; 
 but I reconuneud that an appeal be taken, in or- 
 der that the construction of the Act of 18.'J9 
 may be authoritatively settled.
 
 NORTON V. CREDITORS OF GILLISON 
 
 •211 
 
 ^'harloston woiiUl, iintbalily. sladly do for 
 ono-sevt'iitli tlu» amount. 
 
 But I think the Act of l.S4(> was only in- 
 tondt'd to apply where the provisions of the 
 will were simple. In order to administer the 
 ^.state accordin.i; to tlie provisions of the will, 
 the ordinary is, by that Act, veste<l with all 
 the powers, and subject to the same liabil- 
 ities as an executor. 
 
 No provision is made for commissions where 
 '"217 
 the bulk of the *estate, as in this case, con- 
 sists of lands and negroes disposed of by the 
 will — no executor was ever suppo.sed entitled 
 to commissions on assentinj; to the legacies, 
 or on deliveriuf; over the nejiroes. &c. Yet 
 the ordinary claims live per cent, on the ap- 
 prai.sed value of the entire per.sonal estate. 
 When the provisions of the will are complex, 
 and the ordinary tiuds it necessary to apply 
 to the Court of Lkiuity, I think, as in the 
 ease of an administrator tiskinir aid in the 
 administration of assets, the Court having 
 all the parties before it, should take charj^e 
 and adnnnister the funds, or cause distribu- 
 tion to be made according to its decree. 
 
 But the Act of 1>>.j9. in allowing live per 
 cent, on the value of the estate, contemplates 
 that the whole estate will be sold ity the or- 
 dinary, and after payment of debts, the prt>- 
 ceeds be deitosited in bank. It is a commis- 
 sion on the sale and payment of the fund. I 
 have not before me the amount of the dis- 
 bursements in debts, &c., to be made by the 
 ordinary. But I think the tive per cent, 
 must be allowed only on the moneys actually 
 received and disbursed by him, and that this 
 must cover all charges for auctioneer's com- 
 missions, &c. 
 
 The next question relates to the provision 
 for Mrs. I.artigue. It is not a betpiest of 
 five thou.sand dollai-s, but a direction that tlie 
 trustee should receive so nuich of that sum 
 as should be necessary for the purchase of a 
 plantation, to be held "for her use.'' or that 
 entire sum, "if so much be necessary,"' and, 
 if no cash is on hand, the testator directs 
 "his estate to be kept together until that sum 
 can be realised from the planting income." 
 If the directions of the testator had been 
 pursued, and at the expiration ot two or 
 three years five thousand dollars had been 
 realised from the planting income, and in- 
 vested by the trustees in a plantation of that 
 value, it \v(mld seem that the ol>.je<t was ac- 
 complished and the provision satisfied. If 
 the testator luul directed that two hundred 
 dollars, if so nmch be necessary, iie invested 
 in the purchase of a gold watch and trinkets 
 for hi.s daughter, this is eipiivalent to a bt^ 
 quest of a gold warch. &c.. of aiiont th-il 
 value. The testator seems him.self to have 
 contemplated that there n)ight be delay in 
 
 *218 
 ♦raising the neces.sary amount, lie diiccts 
 his "estate to be kept together until that sum 
 
 can be realised from tho jdanling income." 
 I adopt the conclusion fbut not without hes- 
 itation) that the exception nnist be overruled. 
 
 It is ordered and decnHMl. that the debts 
 <)f the testator, as reported, be paid, and 
 that the ac-connt be aflirmed or reformed, ac- 
 cording to the iirinciples herein stated. 
 
 The comiilainant appealed, on the ground: 
 
 Because he says that he is entitled to five 
 per cent, commissions upon the whole person- 
 alty of the estates, and to five per cent, up- 
 on so much of the real estate of Thomas S. 
 (xillison, as he sold under the order of the 
 Court. 
 
 And the <lefendant.s, Isadore I.artigue and 
 wife, also appealed: 
 
 Becau.se. they say, they are entitled to in- 
 terest on the legacy of .$5.0(M) beiiuoathed to 
 Mr.s. Lartigue by the will of Sanuiel R. (iilli- 
 .son. and his Honor erred in deciding other- 
 wise. 
 
 Ilutson, for complainant. 
 
 Treville, Fickling, for defendants. 
 
 The opinion of the Court was delivered by 
 
 WARDI.AW, Ch. Alter partial adminis- 
 tration of the estate of Samuel R. (iillison, 
 deceased, under his will, the executor, Thom- 
 as S. Gillison. rlied intestate: and the jilain- 
 titf. as ordinary, took charge ot the estates of 
 testator and executor, as derelict. The ap- 
 peal on the part of the plaintiff involves the 
 extent of compensation to which an ordinary 
 is entitled, in charge of derelict estates of a 
 testator and of an intestate. It is clear that 
 a public officer can claim no other comi)ensa- 
 tion for the discharge of duties imitosed up- 
 on him by the Legislature, than such as the 
 Legislature chooses to allow. Adndtting this 
 principle, the coun.sel for the plaintilf insists, 
 in argument, that under our Acts of Assem- 
 bly, an ordinary in charge of derelict estates 
 is entitled to five per cent, of the value of 
 the whole estates ; although, in this particu- 
 lar case, the ordinary may have waived, by 
 the pleadings, his title to five per cent, on 
 the realty not sold. 
 
 *219 
 
 *The Ttli s(>ction of the ordinary's Act of 
 IS.-]!) (11 iStat. 40) provides, that. "In case 
 any estate shall be left derelict, either from 
 partial administration by an e.xecutor or ad- 
 ministrator, or by reason of no application 
 for letters of administration or letters te.sta- 
 mentary, or otherwise, the ordinary of the 
 district, who might be entitled to grant such 
 letters, shall collect and take charge of the 
 same for the period of six months; after 
 which time, if administration be not sooner 
 •applied for. he shall sell the same, after due 
 public notice, either for cash or ui)on a cred- 
 it of six months, and after payment of the 
 debts of said deceased, shall deposit, in the 
 Bank of the State of South Carolina, or in 
 some one of its Branches, the net proceeds, 
 to flic accmnit of the estate to which it be- 
 
 80
 
 *211 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 longs; and shall file, in the office of the 
 clerk of Counnon Pleas of his district, a cer- 
 tificate of such deposit ; and to the end that 
 he may so collect such estate and effects, 
 he iShall have power to institute and niain- 
 tain all necessary legal proceedings ; and for 
 the services aforesaid, he shall be entitled to 
 five per cent, of the value of the estate." 
 
 The Act of 1846 (11 Stat. 357) authorizes 
 the ordinary to sell the perishable property 
 and effects of derelict estates, without re- 
 taining possession of such perishable proper- 
 ty for six months before sale; and further 
 provides, that if the deceased owner of a 
 derelict estate has left a will disposing of 
 his estate, the ordinary in charge of such 
 estate shall adii'.inister the same according to 
 the provisions of such will, and for that pur- 
 pose, that he "shall be invested with all the 
 powers and authorities and be subject to all 
 the liabilities, which may be necessary for 
 carrying such will into effect, in the same 
 manner as if he had been duly nominated 
 and appointed executor thereof." 
 
 By the express terms of the Act of 1839, 
 which originally applied to the derelict es- 
 tates of testators as well as of intestates, the 
 compensation to the ordinary follows the dis- 
 charge of prescribed functions. He is requir- 
 ed to take charge of a derelict estate for six 
 months ; then, to sell the same, pay the debts 
 of the deceased, and deposit the balance of 
 
 *220 
 
 the proceeds in Bank;" *"andforthe services 
 aforesaid," he becomes entitled to five per 
 cent, of the value of the estate. The re- 
 ward cannot be claimed where the services 
 are not rendered. The compensation to the 
 ordinary allowed by the Act, is analogous 
 to the commissions of an executor. For re- 
 ceiving the proceeds of sale and paying the 
 same over to creditors or into the Bank, the 
 ordinary is allowed to claim five per cent, of 
 the estate. In the present case, so far as re- 
 spects the estate of Thomas S. Gillison, who 
 died intestate, the ordinary, instead of sell- 
 ing the whole estate, paying the creditors, 
 and depositing the net balance in Bank, has 
 filed his bill in this Court, for instructions, 
 making the distributee of the estate a party, 
 and by the order of the Court, he has sold 
 so much of the estate only as was necessary 
 to satisfy creditors. He has relieved himself 
 from responsibility, by voluntarily submitting 
 the administration of the estate to this Court. 
 Under such circumstances, we are of opinion 
 that he is entitled to five per cent, of so much 
 of the estate as he has sold and no more. 
 
 The claim of the ordinary, however, is 
 principally connected with the estate of the 
 testator, Samuel R. Gillison. His compensa- 
 tion as to this estate depends upon the con- 
 struction of the Act of 1S4G. That Act is 
 substantially a repeal of the Act of 1839, as 
 to the services and compensation of the or- 
 dinary, where the deceased owner of the 
 
 90 
 
 derelict e.state has left a will. Tlie ordinary^ 
 instead of pursuing a fixed routine of duties 
 for which a fixed compensation is given, is 
 directed to execute the will of the deceased, 
 with all the powers and liabilities of an ex- 
 ecutor named by the testator, without any 
 express mention of compensation. His func- 
 tions must vary according to the caprice of 
 testators in the dispositions of their estates, 
 and it appears reasonable that his reward 
 should vary according to his services. He is 
 to be regarded as a statutory executor, with 
 the responsibilities and emoluments of an or- 
 dinary executor. If the estate be small and 
 the provisions of the will be simple, his 
 trouble and his remuneration will be small ; 
 if the provisions of the will be complicated, 
 he may apply, as any other executor, to this 
 Court for instruction ; and if his commissions 
 
 *221 
 be *inadequate compensation for extraor- 
 dinary services, he may make up an issue 
 in the Common Fleas, as other executors, for 
 extraordinary compensation. 
 
 AVe are of opinion, that by the fair intend- 
 ment of the Act of 1846, the ordinary, when 
 invested with the powers and liabilities of 
 an executor, is entitled to claim the commis- 
 sions of an executor under the Act of 1789; 
 but that the pretension is groundless for a 
 compensation of five per cent, on the value of 
 the estate, which is not received and disburs- 
 ed. It was never supposed that an ordinary 
 executor was entitled to commissions on the 
 value of the estate, real or personal, deliver- 
 ed to specific legatees. 
 
 There is no appeal from si» nuich of the 
 Chancellor's decree as refuses to allow to the 
 ordinary the auctioneer's commissions which 
 were claimed ; but to guard against miscon- 
 ception, it is proper to mention, that the 
 services as auctioneer were rendered by the 
 plaintiff himself, or by some member of a 
 mercantile firm of which he was a partner. 
 The remaining question in this case is up- 
 on the appeal of the defendants, Isadore Lar- 
 tigue and wife, as to interest upon the legacy 
 of $.5,000 to Mrs. Lartigue. 
 
 It is considered safer to reserve the deci- 
 sion upon this point until we have fuller 
 information upon the facts. Granting that 
 the bequest in trust for Mrs. L. is a general, 
 pecuniary legacy, and by the general rule 
 entitled to interest from a year after testa- 
 tor's death, still it is suggested to us, that 
 circumstances controlling the general rule as 
 to interest, may exist as to this legacy, at 
 least as to a portion of the arrears. It is 
 said, that the sum of this legacy was some 
 time ago set aside in the administration of 
 this estate, under the direction of this Court; 
 and that this sum has been since unproduc- 
 tive. This may bear upon the interest for a 
 time. It may also be desirable to know when 
 the devisees of testator entered upon the en- 
 joyment of their lands. Inquiry and report 
 by the commissioner will bring out the facts.
 
 THUKNE V. FOKDHAM 
 
 224 
 
 necessary to the final decision of the ques- 
 tion. 
 
 It is ordered and decreed, that the circuit 
 ♦ 222 
 decree lie afhrmed as *to the compensation of 
 the ordinary, and that the appeal of the 
 plaintiff In? dismissed. 
 
 It is further ordered, that the cause be 
 remanded t(i the circuit Couit, so far as the 
 <-laim of Isadore Lartigue and wife for in- 
 terest upon the lejracy to Mrs. Larti^ue is 
 concerned: and that the commissioner of this 
 Court for Reaufort distinct be directed to in- 
 quire and report as to all the facts connected 
 with said legacy: with leave to report any 
 especial matter. 
 
 TOHXSTON, DIXKIX and DAIK^AX, CC, 
 •concurred. 
 
 4 Rich. Eq. 222 
 
 REBECCA THORXE v. RICHARD FORD- 
 HAM. 
 
 (Charleston, Jan. Term, 1852.) 
 
 [Wills <©=747.] 
 
 Testator bequeathed all the rest of his es- 
 tate imto R. F. "in trust for .Tohn. Tlinmas, 
 IMiilip. Rebecca. Caroline and Susan Tliornc, 
 persons of color, and their heirs, fonner." Tes- 
 tator dierl in 18L'4 ; and iu 184.S this l)ill was 
 filed by Rebecca, the black, mother of the Irjia- 
 tees. .John, Thomas. Philip, Caroline and Susan, 
 who wore the natural ihildrcn of testator, 
 against R. F., claiming that she was entitled to 
 the leaacy to the Rebecca, named in the will. 
 Her claim was resisted in behalf of Rebecca, 
 the brown, (dauiihter of .Tudy.) who was an in- 
 fant at the date of the will, and whom the testa- 
 tor also claimed to be his natural child. Ipon 
 the evidence given, and principally upon her 
 own acts recognizing the title of Rebecca, the 
 brown, and her long acquiescence, held, that 
 plaintiff was not entitled to the legacy. 
 
 [Ed. Note.— For other cases, see Wills, Cent. 
 Dig. S 1932; Dec. Dig. .®=»747.] 
 
 Before Dunkin, Ch., at Charleston, Julv, 
 1850. 
 
 This case will be sutHciently understood 
 from the opinion delivered in the Coiu-t of 
 Appeals. 
 
 Torre, for appellant, cited Nourse v. Finch, 
 1 Ves. jun. 358 ; Careless v. Careless, 1 Meriv. 
 TJ84; Wigrani, 15; 4 Howard, 5(51; 6 Wheat. 
 481 ; Hovenden v. Annesly, 2 Sch. and Lef. 
 429; 2 Clark & Fin. 429; Pickering v. Stam- 
 ford, 2 Ves. jun. 272, 581. 
 
 Northrop, Petigru, contra, cite<l Fable v. 
 *223 
 Brown, 2 Hill, Ch. *378; Lenoir v. Sylvester, 
 1 Bail. 6.32; Linam v. Johnson, 2 Bail. 135; 
 Act 1841, 11 Stat. 154. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW. Ch. John Stocks Tliorne, by 
 his last will and testament, executt-d August 
 11, 1824, appointed Richard Fordham execu- 
 tor of his will, and after a specitic devise dis- 
 
 posed of his estate as follows: "All the rest 
 of all my real and personal estate I give un- 
 to Richard Fordham, to be held in tru.st by 
 him for Jidui, Thomas, Philip, Rebecca, Caro- 
 line and Susan Thorne, persons of color, and 
 their heirs fcjrever, to be applied to the sole 
 use and benefit of them, the said John, 
 Thomas, Philip, Rebecca, Caroline and Su- 
 san." The testator died the next day after 
 the date of his will. 
 
 The plaintiff is a black woman, the mother 
 of the legatees, John, Thomas, Philip, Caro- 
 line and Susan, who were recognized by the 
 testator as his natural children. She was 
 formerly the slave of the testator ; was eman- 
 cipated by him in 1811, and was afterwards 
 called l)y the name of Rebecca Thorne. 
 
 Her title to the legacy is resisted in behalf 
 of another Rebecca, a brown woman, some- 
 times called Rebecca Thorne and sometimes 
 Rebecca Fordham. Her mother was Judy ; 
 and to be her father seems to have been 
 claimed by both testator and executor. Judy 
 and her child Rebecca were bought as slaves 
 by the te.xtator, November IS, 1817, for ,$700 ; 
 and they were transferred by him, November 
 27, 1817. to his friend Fordham, on a nonnnal 
 consideration. Rebecca, the brown, was al- 
 ways practically free; and in 1846 she es- 
 tablished her freedom against Fordham iu 
 the Court of Law, by process de homine 
 replegiando. It seems that she lived in the 
 family of -the plaintiff in early life until 
 March 8, 1825, when she was removed to the 
 house of another woman of color. She was 
 maintained and educated and otherwise 
 treated as the legatee, without any adverse 
 claim, until about the time of filing this bill, 
 which was on April 22, 1848. although the 
 executor has not paid over the principal of 
 this share of the estate. 
 ♦224 
 
 ♦The plaintiff, Rebecca, the black, relies 
 principally upon the facts, that, at the date of 
 the will and of the testator's death, which 
 may be consi<lered for this puri)ose cotempo- 
 raneous, she h.ul acquired by reputation the 
 luime of Rebecca Thorne, by which the leg- 
 atee is descrilMHl in the will; and that she 
 was then free, and capable of taking on the 
 terms of limitation iu the will to her and her 
 heirs; and she urges that the other claimant 
 was not, at the date of the will, known as 
 Rebecca Thorne, and that in fact she was a 
 slave, and incapable of taking to herself and 
 her heirs. 
 
 The proof is clear of the title of the plain- 
 tiff to freedom and to the name of Thorne; 
 but it is not decisive against the e«iual claim, 
 in these particulars, of Rebecca, the brown. 
 
 The (piestion, whother Rebecca, the brown, 
 was a free person at the death of the testa- 
 tor, is immaterial, except as the fact may 
 operate upon the meaning and apidication of 
 the terms of the will describing the object 
 of testator's bounty. Granting that she was 
 
 ^zsFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 
 
 91
 
 ■5(224 
 
 4 RICIIAKD.SONS EQUITY KEPORTS 
 
 then a slave, she might still be the person 
 described in the will as legatee, and until 
 the Act of 1841, might take the legacy, with 
 the assent of the executor ; if not for her own 
 use, for the benefit of lier master; and the 
 limitation of the estate to heirs, wliere a 
 slave and free persons are named together, 
 has no appreciable effect in ascertaining the 
 meaning of the terms designating the legatee. 
 Unfortunately for the plaintiff, she is the 
 strongest witness for her adversary. Inde- 
 pendent of her acts and declarations, it 
 would be difficult, probably from the youth 
 and obscurity of the party, to find in the 
 proofs, distinct evidence that Rebecca, the 
 brown, had acquired the name of Thorne at 
 the death of the testator, although she has 
 been so designated for more than twenty 
 years. Immediately after the death of tes- 
 tator, namely, August 14, 1824, plaintiff gave 
 a receipt to Fordham for $15 for the use of 
 the children of testator, describing therein 
 Fordham as "trustee for my children. John. 
 Thomas, Philip, Rebecca, Caroline and Susan 
 Tliorne, as per the will of their father, John 
 S. Thorne." At the same time she signed an 
 
 *225 
 acknowledgment of having *received from 
 Fordham, "trustee for the children of the 
 late John S. Thorne, for the use of said 
 children," various articles of apparel, a 
 watch, umbrella, &c. On August 24, 1824, 
 she signed a receipt to Fordham, "trustee for 
 the children of the late John S. Thorne, viz: 
 John, Thomas, Philip, Rebecca, Caroline and 
 Susan, as per the will of their father," for 
 $102.50, "to purchase mourning for the fe- 
 male children." On October 8, 1824, she 
 gave another I'eceipt to Foi'dham as trustee 
 for the children of $50 for their support; 
 and from November, 1824, to March, 1825, 
 she gave monthly receipts of $.30 for support 
 of the children. On May 10, 1825, she enter- 
 ed into an agreement with Fordham "as trus- 
 tee for the children of the late John Stocks 
 Thorne" "to attend to the ease and comfort 
 of said children, viz: John, Thomas, Philip, 
 Rebecca, Caroline and Susan," in considera- 
 tion of $20 to be paid to her monthly; and 
 from April, 1825, luitil September, 1844, in- 
 clusive, she gave monthly receii)ts to the de- 
 fendant as trustee for Thome's children, at 
 the rate of $5 for each of tlie children wlio 
 were with her; and also for tlie greater part 
 of the time gave like receipts of $5 a month 
 for her wages in attending to the children. 
 On October 1, 1844, she accepted a convey- 
 ance for her life of a house and lot in Bound- 
 ary street in this city, from John, Philip, 
 Rebecca, tlie brown, Susan and Caroline, 
 (Thomas being then dead.) in and by which 
 conveyance the grantors designate them- 
 selves by the name of Thome, and as chil- 
 dren of the testator, and devisees of said 
 house and lot under his will, and convey the 
 premises to their "mother, Rebecca Thorne," 
 as a residence for life. 
 
 92 
 
 Rebecca, the black, is unlettered ; and 
 the fact, that she is mentioned in this det-d 
 of conveyance and in the earliest receipt, as 
 mother of the other Rebecca, is urged as 
 proof of fraud on the part of the defendant. 
 It is more natural, however, to attribute this 
 mistake to the ignorance of the scrivener, 
 ^'wo of the witnesses, Whitney and Addison, 
 seem to have fallen into the same error. 
 An appellative of kindi-ed is often bestowed 
 where there is no consanguinity under such 
 
 *226 
 
 circumstances as existed in *this case. These 
 acts of the plaintiff having almost the force 
 of an estoppel, with the additional fact of 
 her ac(iuiescence for twenty-foiu- years, are 
 serious obstacles to her claim. If the terms 
 of the will describing the legatee applied cer- 
 tainly to her alone, we .should not hold that 
 the technical trust between executor and 
 legatee was barred by the .statute of limita- 
 tions or by lapse of time, while the executor 
 acknowledges that the legacy is unsatisfied, 
 and that he retains in his hands assets of the 
 estate to the amount of the legacy. But 
 nmch suspicion is proi)erly thrown on the 
 plaintiff's case by her great delay in the as- 
 sertion of her claim and by her recognition 
 of another's title. As the evidence now 
 stands, the case may be regarded as one of 
 what Lord Bacon calls "eiiuivocation," where 
 the words describing the legatee apply equal- 
 ly to two persons ; and in that state of 
 things parol evidence is admissilile of the 
 declarations of the testator, at least at the 
 time of making his will, and of extrinsic 
 facts serving to point the application of the 
 terms of gift. ((Jord v. Needs. 2 Mees. «& 
 W. 140; Iliscocks v. Iliscocks. 5 Mees. & 
 W. .SO.'i; Careless v. Careless, 1 Mer. .3S4.) 
 But the course of the plaintiff, continued for 
 so long a time, has been calcidated to dis- 
 arm the adverse claimant, and obstruct her 
 proofs. Who can tell, if this pretension of 
 the plaintiff had been set up within reason- 
 able time, while the witnesses who attested 
 tlie will, and others who were intimately ac- 
 quainted with the testator's affairs, were in 
 life, that full and explicit j)roof of the title 
 of Rebecca, the brown, may not have been 
 given'/ Claimants are not to be encouraged 
 to .speculate upon the obscurity which time 
 may produce in stale transactions. 
 
 The order in which the name of Rebecca 
 is inserted among the legatees is a circum- 
 stance not conclusive, but of some weight 
 against the claim of the plaintiff. It is very 
 unusual, in the enumeration of a mother and 
 her children to set down the name of the 
 mother in the midst of those of her children. 
 
 So, too, the description in the will, of Re- 
 becca, and the other legatees, as "persons of 
 color," is a pretty strong circum.stance 
 
 *227 
 against *the plaintiff. It is not according to 
 the use of language in this region to speak 
 of one altogether black as a person of color.
 
 YERDIEll V. FOSTER 
 
 *229 
 
 The phrase is almost exclusively applied to 
 one of mixed blood and color. 
 
 Every one who makes a claim in Court is 
 hound to establish his title to the satisfac- 
 tion of the tribunal. In this case we are not 
 .satisfied with the showing of the plaintiff. 
 
 These views relieve us from the deter- 
 mination of the (luestion as to the effect of 
 the answer, setting forth certain declarations 
 of intention by the testator, before and after 
 making the will. 
 
 It is ordered and decreed, that the circuit 
 decree be attirmed, and the appeal be dis- 
 missed. 
 
 JOHNSTON, DUNKIN and DAR(;AN, CC, 
 concurred. 
 
 Appeal dismissed. 
 
 4 Rich. tq. 227 
 
 SIMON VP]RDIER v. WILLI A.M R. FOSTER. 
 
 (Charleston. .Tan. Term. 18o2.) 
 
 [Creditors' i^nit <g=>l(;. :]\).] 
 
 As a debtor, discliarsofl under the prison 
 bound.s Act. cannot be afterwards arrestt'd un- 
 der ca. sa. for the same debt, a bill in eciuity 
 will, it seems, lie to compel him to satisfy the 
 debt out of such after aoquirtHl interests, (clioses 
 In action, equities. &c..) as cannot be reached 
 by fi. fa.; but a bill for tbat purpose must 
 state some specific fund, equity, or eliose. in 
 which the debtor has an interest: a general 
 charge that he has been in receipt of a large 
 salary, has acquired property by marriage, has 
 drawn a large i)rize in a lottery, and is now in 
 the possession or enjoyment of the use of prop- 
 erty of considerable value, which cannot be 
 reached at law, is insufficient. 
 
 [Ed. Note. — For other cases, see Creditors' 
 Suit, Cent. Dig. §S 7G, 158; Dec. Dig. <S=» 
 16, .".9.1 
 
 Before Dargan, Ch., at Charleston, March, 
 1850. 
 
 This case was heard on the bill, and a 
 demurrer thereto filed by the defendant. 
 
 The bill is as follows:" 
 
 Humbly complaining, show unto .vour Hon- 
 ors, your orator, Simon Verdier, that on or 
 about the first day of June, A. D. 18.S0. your 
 orator issued a writ of sci. fa. to revive a 
 .iudgment then of record in the office of the 
 clerk of the City Court of Charleston, 
 
 *228 
 *again.st William B. Foster, a resident of the 
 city of Charleston, and subject to the juris- 
 diction of the City Court of the said city 
 of Charleston, and thereupon afterwards, to 
 wit, on the day of January, A. D. 
 
 1840, recovered judgment against the said W. 
 B. Fo.ster for .H;">T.71. with interest on the 
 principal sum of .$4.S0.71, to be calculated 
 from the 5th of November, A. D. 1810. which 
 will more fully and at large appear, by ret- 
 erence to the records of the said judgment in 
 the office of the clerk of the .said Court, 
 which is now wholly un.><atisfied. That im- 
 mediately after the recovery of the said judg- 
 ment, your orator sued out of the said Court 
 
 a writ of fi. fa., directed to the sheriff of 
 said Court to make the money thereon ac- 
 cording to law, which was shortly after re- 
 turned l»y the said sheriff, and marked nulla 
 bona. 
 
 And your orator further sheweth. that the 
 said William B. Foster has been for many 
 years in the receii)t of a large salary, and 
 has accpiired property b.v nuirriage, and in 
 other ways, and especially a large sum of 
 money from a jirize in a lottery, drawn 
 some time befoi'e the said proceedings in sci. 
 fa. were instituted. And y<nir orator has 
 been intVu-nied that the .said William is now 
 either in the possession or enjoyment of the 
 u.-^e of property of considerable value, which 
 cannot be reached by any proce.><s klu>^^•n to 
 the law, but which is justly liable for the 
 debts of the said defendant. 
 
 And your orator further sheweth. that he 
 is un.ible to compel the said defendant to 
 assign his e(|uitable interests in the said 
 property, because many years ago the said 
 defendant was arrested by virtue of a cei'- 
 tain execution of ca. sa. to enforce his said 
 original judgment, and was discharged from 
 the said arrest by virtue of certain proceed- 
 ings, instituted by .said defendant, as an a])- 
 plieant for the benefit of the Prison Bounds 
 Act. which were had and conchuled before 
 the ac(iuisition of the said property and mon- 
 ey, herein before mentioned, whereby your 
 orator is incapable of again arresting the 
 person of the said defendant, to conii>el an 
 assignment "of his eciuitable interests in sat- 
 isfaction of his said judgment, and is advis- 
 ed that he is altogether remediless at law 
 in the premises. 
 
 *223 
 
 ♦And your orator further sheweth. that he 
 has rejteatedly applied to the said <h'fendant 
 to pay to him his said debt out of his.eipiita- 
 ble assets, which .vour orator is unable to dis- 
 cover, with which reasonable rei|uests your 
 orator well hoped the said defendant would 
 have complied, as in justice and eipiity he 
 ought to have done. But now so it is, may it 
 plea.se your II(Uiors, that the said William B. 
 Foster, C(unbining and confederating. &c., 
 &c., he hath ab.solutely refused to comply 
 with such requests, under various i)retences; 
 all which actings and d(ungs, pretences and 
 refusals, are contrary to equity and good 
 conscience, and tend to the manifest injury 
 and wrong of your orator in the premises. 
 In consideration whereof, and for as nnich as 
 your orator can only have adeipnite relief in 
 the prennses in a Court of Equity, where 
 matters of this nature are properly cogniza- 
 ble and relievable. To the end therefore that 
 the .said William B. Foster and his confed- 
 erates, when discttvered, ma.v uiion their sev- 
 eral and respective corporal oaths, t<» the best 
 and utmost of their several and respective 
 knowledge, &c., full. &c., answer make to all 
 and singular the matters aforesaid, anil that 
 as fully and particularly as if the same were 
 
 ®=»For othar eass see same topio and KEY-NLMBEU in all Koj -Numbered Digests and lnde.\e:< 
 
 9S
 
 *229 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 here repeated, and they aud every of them , 
 disthictly interrogated thereto ; and more j 
 especially that the said confederates may, | 
 in manner aforesaid, answer and set forth, 
 whether the said defendant has not the pos- 
 session of, or the enjoyment of the use of 
 any property, aud of what property, and how 
 the same is held, in what manner, and to 
 what uses or trusts the same may be held, 
 in which he has any equitable interest ; and 
 more particularly that he discover and set 
 forth all bonds, notes, or other choses in ac- 
 tion, bank stock, or shares of bank stock, and 
 shares in the capital stock of any and all in- 
 corporated companies of every kind and de- 
 scription, and of private or public securities 
 whatever, from which he derives or can de- 
 rive any income or prohts, or in which hehas 
 any equitable interest, in whatsoever condi- 
 tion, or in whatsoever names the same may 
 be, and whether the same, or the increase 
 arising therefrom, has been acquired by mar- 
 riage, or in whatsoever manner; or in case 
 
 *230 
 the *said defendant shall have given, or de- 
 livered to any person or pei>!ons, any proper- 
 ty of any description whatsoever, under any 
 conditions, agreements, or reservations what- 
 ever, express or implied, by which the said 
 donee or bailee is to return the same to the 
 said defendant, or to hold or use the same 
 in any way for the benefit of said defendant, 
 whether said conditions, agreements, or res- 
 ervations, can or cannot be enforced at law 
 or equity, or their observance depends on the 
 will and pleasure of the said donee or bailee, 
 that in such case the said defendant shall 
 discover and set forth the same, with the 
 names of the said donee or bailee, and the 
 terms of the said gift or bailment ; and that 
 the said use, income, profits, stocks, shares, 
 and private and public securities, and other 
 equitable interests, may be rendered availa- 
 ble for the payment and satisfaction of your 
 orator's just claiuis, as aforesaid. And that 
 the said defendant may be compelled to dis- 
 cover and set forth, and assign all his estate 
 and interests, both in law and in equity, or 
 so much thereof as may be sufficient for that 
 purpose; and that your orator may have such 
 further or other relief in the premises, as 
 the nature and circumstances of the case may 
 require, and to your Honors shall seem meet. 
 May it please your Honors to grant unto 
 your orator a writ of subpoena, &c. 
 
 Dargan, Ch. The discharge of an insolvent 
 debtor under the Prison Bounds Act, (Act of 
 1788,) has the effect of exempting such debtor 
 from being again arrested by capias on the 
 same case, or under the same judgment, ex- 
 cept where the debtor has committed a fraud 
 in the manner of obtaining his discharge. 
 Though his body is exempted from arrest, his 
 subseijuently acquired property is still lia- 
 ble for the delit, if the same be not satisiied 
 with the effects assigned. Visible or tangible 
 property thus acquired is liable to be taken 
 
 94 
 
 under a fieri facias for the satisfaction of so 
 much of the debt as still subsists ; but choses 
 in action and equities cannot be reached by 
 this process ; and as they cannot be reached 
 by a capias, on account of the exemption 
 
 *231 
 ♦arising from the discharge, it follows that 
 they can only be reached by the interven- 
 tion of this Court. Where there are choses 
 in action or equities, a resort to this jurisdic- 
 tion would not only be proper, but would in 
 fact be the only effectual means of relief. 
 
 But the complainant must make out a 
 proper case for the interference of the Court. 
 He must make out some specific equity. He 
 must charge that the defendant owns some 
 particular chose, or that he has made some 
 specific disposition of his assets, by way of 
 trust, for the avoidance of his debts ; or 
 that he has some interest in a specific fund 
 or estate. He will not be permitted to spec- 
 ulate upon the jurisdiction of the Court on 
 a mere hypothesis. All that the complain- 
 ant charges in this bill may be true, and yet 
 he may be entitled to no relief. He charges 
 that the defendant has been in the receipt 
 of a large salary, that he has drawn a lot- 
 tery prize, and that he has acquired prop- 
 erty by his marriage. He does not sav how 
 large the salary or the prize ; nor that any 
 of the money, or the investments thereof, 
 now remain in the hands of the defendant 
 or under his control, nor how they are 
 invested. He does not show what property 
 the defendant has acquired by his wife, of 
 what it consists ; whether settled on his 
 wife, or liable for the husband's debts, or 
 whether it is now in his hands. In fine, tak- 
 ing all that he says to be true, he does not 
 show that there is in existence any property 
 or fund which the jurisdiction of this Court 
 can reach for the satisfaction of his debt. 
 Until he makes some such specific allega- 
 tions, I do not think that the defendant is 
 bound to answer. 
 
 It is ordered and decreed, that the de- 
 murrer be sustained, and that the bill be 
 dismissed. 
 
 The complainant appealed, on the grounds: 
 
 1. That it is expressly charged in the bill 
 of complaint that the defendant was in the 
 possession or enjoyment of the use of prop- 
 erty of considerable value, which cannot be 
 reached by any process known to the law, 
 but which is justly liable for the debts of 
 the defendant. 
 
 2. That the Chancellor erred in consider- 
 
 *232 
 ing that the right of *the complainant to a 
 discovery would be affected by his charging, 
 more particularly than he has done, what 
 was the amount of the salary, or lottery 
 prize, or the manner in which the property 
 of the defendant, acquired by marriage, was 
 settled; when it is sufficiently shown that 
 there is property, of which the defendant 
 has the use and enjoyment, secured in some 
 way unknown to the complainant, from his
 
 LAWTOX V. HUNT 
 
 *23-4 
 
 execution, and his interest in which the de- 
 fendant cannot be compelled to assign at 
 law. 
 
 3. That the discovery itrayed for hy the 
 complainant is not a f;eneral discovery by 
 way of speculation u|>oii the jurisdiction of 
 the Court, but is of such property as the 
 defendant is char;;od as actually deriving in- 
 come from : and that when the right of the 
 conijilainant to satisfaction is sufticiently 
 stated, and the inadeiiuacy of his remedy 
 at law is shown, the fact that the defendant 
 has so secured his property, that its situa- 
 tion cannot be discovered b.v the complain- 
 ant, except by the aid of this Court, affords 
 surticient ground for ef|uitable relief ; and 
 the dismissing of the bill for such a reason 
 would be an encouragement to the ingenuity 
 of the fraudulent. 
 
 4. If a discovery in such cases be refused 
 by the Court, a fraiidulent debtor who had 
 been discharged from the liability to arrest 
 under a capias ad satisfaciendum in any par- 
 ticular .suit, or a female against whom a 
 capias ad satisfaciendum cannot be issue<l. 
 would be able to enjoy any amount of imip- 
 erty. the mode of investing which could be 
 concealed from the creditor. 
 
 Northrop, for appellant. 
 Campbell, contra. 
 
 PER CURIAM. This Court concurs In the 
 decree of the Chancellor, which is confirmed 
 and the appeal dismissed ; and it is so or- 
 dered. 
 
 JOHNSTON. IHXKIN. DARGAN and 
 WARDLAW. CO., concurring. 
 Appeal dismissed. 
 
 4 Rich. Eq. *233 
 
 *W. yi. UAWTON, Executor, v. BENJ. F. 
 HUNT et al. 
 
 (Charleston. Jan. Term, 1852.) 
 
 [Wills <@=»572.] 
 
 Devise of i)!antation "and all tho slaves 
 usually used, attaclnd and belonging to tiie 
 said i)lantati<in:" to tlic plantation \v«'re attach- 
 ed and belonged a nuailicr of sljivcs used in 
 ajiricidtural operations: — livid, that the devise 
 (lid not embrace some carpenters and boat- 
 hands, who had tlieir canins, families and patch- 
 es on the plantation, but were generally employ- 
 ed elsewhere. 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. S 1245: Dec. Dig. <S=572.1 
 
 \^yill!< C=34.">(!.1 
 
 Wiiere tlie context of tln' will nffords no con- 
 trary indication, tlie teims descriptive of tiie 
 subject of «ift. must be understood in their 
 strict and iirimary sen.se, if a subject be found 
 to whicii tiie words so interjireted aiiply; and 
 in such a ciise tlie terms of gift caiuiot be made 
 to embrace another subject in a secondary or 
 deflected sense. 
 
 llOd. Note. — For other cases, see Wills, Cent. 
 Dig. § Jt74: Dec. Dig. <©=345ti.] 
 
 [WilU C=>S.32.] 
 
 Testator purchased slaves from his son-in- 
 law, which were under mortsaire to secure a 
 debt of the sou-in-law, for which testator was 
 liable as his surety: Testator afterwards be- 
 queathed the slaves to his daughter, wife of 
 sr>n-in-law. to her sole and separate use, iVic: — 
 llild. that, as between tlie daughter and other 
 legatees of testat<ir, the debt for which testa- 
 tor was liable as surety of son-in-law and for 
 wliich the slaves were under mortgage, was not 
 chargeable specifically up<m the slaves, but 
 generally upon the whole estate of testator. 
 
 [Ed. Note.— Cited in Latimer v. Latimer, 38 
 S. C. .385, IG S. E. yi)5. 
 
 For other eases, see Wills, Cent. Dig. § 2150; 
 Dec. Dig. «©=9832.] 
 
 [Ell II ill/ <S=;',s3.1 
 
 In case of oisiiute between client and coun- 
 sel as to the amount of compensation, the Chan- 
 cellor is not bound, but may order an issue 
 at law ; he should not, however, leave to the 
 determination of the law Court the nuestion 
 which party shall be liable for fees that are rea- 
 sonable. 
 
 [Ed. Note. — For other cases, see E(|uity, Cent. 
 Dig. !} 787; Dec. Dig. <g=>383.J 
 
 liefore Dunkin, Ch., at Cliarleston, June, 
 18.50. 
 
 Tile former branch of this cause is report- 
 eO 4 .Strob. Eq. 1. 
 
 The cause came on upon exceptions to the 
 master's report, under the intjuiry that was 
 directed. So much of the report of June, 
 1850, as relates to the questions considered 
 in the Court of Appeals, is as follows: 
 
 '•By the appeal decree in this case, filed 
 1st February. 1850, 'the disputed point whetii- 
 er the carpenters, Ben, Hector, Maurice. I'aul, 
 Little Ben, and John, and the sloop hands 
 and boatmen, Nat, Thil, Jim. Joe. Steward, 
 and Jack, are part of the negroes deviseil to 
 Mrs. Colburn or of the residuary estate, is 
 referred back to the master to take further 
 testimony. As to the extent and ipiantity of 
 land devised to Mrs. Cidburn, under tiie de- 
 vise of Tibwin, the same is also referred 
 
 *234 
 
 back to the master for *further information; 
 and it is ordered, tluit a survey and plat of 
 all the lands claimed as belonging to Tibwin, 
 be made for the information of the Court.' 
 Under this order, I have been attended at 
 several references by the solicitors of Mrs. 
 Hunt and family, and of Mrs. Colburu and 
 child, but no further testimony iias bet'ii 
 taken, except the examination of Mr. Mois- 
 son, which is herewith Hied. 
 
 "As respects the first point sent down to 
 me, whether the carjienters, slcKip hands and 
 boatmen, are part of the devise to Mrs. Col- 
 burn, or are residue, I iiave already reported, 
 and a more careful and minute examination 
 of the testimony has not tended to change 
 my first judgment. To support the position 
 that tiicse negroes are residue, that part of 
 the testimony is chiefly relied on which 
 proves that Mr. Mathewes moved his force of 
 carpenters from place to place, and from 
 
 ^=:9For other ca^es see same topic and KEY-NL'MBEK in all Key-Numbered Digests aud Indexes 
 
 95
 
 *234 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 country to town, to suit tlie exigencies of his 
 different plantations and his town property, 
 and that the sloop hands and boatmen were 
 also indifferently employed in the service of 
 all the plantations: it is therefore contended, 
 that they can in no wise be brought within 
 the words of the will, 'usually used, attach- 
 ed and belonging to the said house and plan- 
 tations." I cannot see the force of the argu- 
 ment, and in construing this clause of the 
 will, I think the words of qualification are 
 to be referred to those uncertain and not well 
 defined niatters of plantation furiuture, which 
 the testator speaks of as 'every other thing.' 
 I do not think that the words of qualification 
 can be made to go further. I attach great 
 importance to the domiciliary arrangements 
 of these negroes, — that they had families at 
 Tibwin — that their garden patches were 
 there — and in the case of the boatmen, that 
 by reason of their frecjuent absence, Mr. 
 Mathewes had their patches cultivated and 
 kept in order for them. I tliink it an impor- 
 tant point, also, that they were on the allow- 
 ance list at Tibwin, and I find accordingly, 
 that Ben, Hector, Maurice, Paul. Little Pen, 
 John, Nat, Jim, Phil, Joe, Stewart, and Jact, 
 are not residue, but that they pass under the 
 devise to Mrs. Colburn. 
 *235 
 *"The appeal decree says: 'That the plan- 
 tation and negroes called Thompson's, are 
 to be considered part of iNIrs. Colburn's por- 
 tion, under the will, and liable to contribution 
 for the debts equally with the rest, and that 
 the money owing for the said property is 
 to be considered the proper debt of the tes- 
 tator, so far as the creditors are concerned. 
 But it .is referred to the master to ascertain 
 and report whether, as between Mrs. Hunt 
 and Mrs. Colburn, said debt is chargeable 
 specifically upon said land and negroes or 
 upon testator's whole estate.' 
 
 "In this matter I have also had the solic- 
 itors of the parties before me at several 
 references, and the deed of August 21, 1847, 
 was submitted. It is insisted, on behalf of 
 Mrs. Hunt and children, that by virtue of 
 this deed, Mr. Colburn received from Mr. 
 Mathewes the proceeds of notes to the amount 
 of $7,795 for the purpose of paying up in 
 full the bonds known as Broughton's, Huger, 
 Pringle and Ball's, but that he failed so to 
 apply the funds; that Colburn being in this 
 way indebted to Mathewes, in the above 
 amount of .$7,795, as the deed recites, convey- 
 ed to him, Mathewes, the negroes Joe, Polly 
 Liddy, Nanny, Caroline, Amy, Die, Cliaplin, 
 Cjesar, Bella, Paul, Fanny, August, July, 
 Abraham, Sarah, Liddy, Maria, Thompson, 
 Henrietta, and Zacharias, as his, B. P. Col- 
 burn's property, when, in fact, they were not. 
 inasmuch as Joe, Polly, Liddy, Nanny, Car- 
 oline, Amy, Die, and Chaplin, were under 
 mortgage to E. C. Huger, administratrix of 
 John H. Huger, — Cajsar, Bella, Paul, Fanny, 
 August, July, Abraham, Sarah, Liddy, Maria, 
 
 9G 
 
 Wanetta, (who, Mr. Colburn admits, is the 
 same as Henrietta, mentioned in the deed,) 
 and Thompson, (born after the date of the 
 mortgage,) under mortgage to S. M. Pringle, 
 and Zacharias, under mortgage to the ex- 
 ecutor of Isaac Ball. Now, therefore, as 
 all the negroes conveyed by the deed of 21st 
 August, 1847, are yet unpaid for, and pay- 
 ment is now sought from the estate of Math- 
 ewes, the point raised on behalf of Mrs. 
 Hunt and children is, that the mortgaged 
 property should be first exhausted in relief 
 pro tanto of Mathewes. It is true that these 
 twenty-three Jiegroes, (those mentioned in 
 
 *236 
 the deed,) have never *been taken into the 
 estate — that the executor declined to take 
 possession of them because of the post-nuptial 
 marriage settlement, and that they have been, 
 and still are, in the possession of Colburn 
 and wife. In the deed, (of August, 1847,) it 
 is set forth that INIathewes is to be the pur- 
 chaser of the Thompson land and negroes, 
 and to hold them in trust, &c., under the 
 trusts and provisions of the ante-nuptial 
 settlement, and it is contended that the item 
 in Mathewes's will in the matter of the 
 Thompson lands. and negroes, does not pur- 
 port to dispose of them as a part of his es- 
 tate, that he had no right to do so — the devise 
 is an anterior clause, and this part of the 
 will is only a declaration of certain condi- 
 tions precedent in relation to said devise. 
 That the answer of Colburn and wife denies 
 there being any question of election — that 
 the decree of Chancellor Dunkin overrules 
 the answer, and in his decree on circuit, 
 deternunes that it is a case of election, that 
 Colburn and wife have not elected. In this 
 behalf, I find that both the circuit and appeal 
 decrees determine that Mr. Mathewes did 
 treat the Tiiompson land and negroes as 
 his property. The words of Chancellor Dun- 
 kin, in speaking of this matter on circuit, 
 are: 'Clearly, this is the language of a man 
 expressing his intention to dispose of prop- 
 erty as his own, because he had purchased 
 and paid for it, although he admitted the 
 equitable interest to be in others. It is the 
 assertion of a proprietor's will, and acqui- 
 escence is secured by a strong sanction.' i 
 find further, that it is manifestly to the in- 
 terest of Mrs. Colburn and her child, that 
 they elect to take under the will — that Mrs. 
 Colburn does so elect, and that Mr. J. S. 
 Colburn, the trustee under the original deed 
 of marriage settlement, concurs with me in 
 the opinion, that it is to the interest of the 
 infant that she also take under the will, as to 
 the mortgage debts of the Thompson negroes. 
 "I have but little doubt that when Mr. 
 Mathewes's debt shall have been fully paid, 
 Colburn will be found a debtor to the estate ; 
 but I cannot see how his individual debt can 
 be charged against his wife's separate es- 
 tate. In how far the estate of Mathewes 
 paying these debts will be subrogated to the
 
 LAWTOX V. HUNT 
 
 r»9 
 
 •237 
 
 rights under, and the iini*t<>(fi..ii of the moit- 
 ^aws, is a «ni*'-^ti<>n wiiidi ilepeiids very iiuicli 
 upon wiietlier Mr. .Matliewes has, or lias not, 
 l».v liis own act. made tlie tleht e.xchisively 
 eiiar^'ealile on liis estate, and tliat heing a 
 naked qnestion of hiw, is more pmiuTly witii 
 Uie t'ourt. 
 
 "It only n-mains now to eonsid»«r the ob- 
 .iection to Veadon & Mael eth's liill for profe.s- 
 sional .services, the exceptions put in to Mr. 
 Khetfs accounts, and th«' «iuestion of costs. 
 The objections uryed a^'ainst the bill of Yea- 
 don & Macbeth are so numerous that it will 
 I'e necessary to consider tlnMn s"riatim. R«'- 
 I'ttre taking up the accounts of Yeadon & Mac- 
 beth, it may be well, however, to notice, 
 that senerally in the matter of the executor's 
 account, the devi.see.s. S. li. Hunt and chil- 
 dren, ob.jected to all items not within four 
 years of the testatt)r's death, as beiiiR In- 
 law inadmissilde. They object also to ail 
 • harws not established by law. and claim 
 that they nnist be sustained bt-foiv a jury. 
 They object to all fees for the litigation by 
 Mr. Lawton, as beyond his competency, and 
 not designed for the benefit of the estate. 
 lUit, as the order of the Chancellor, made 
 this day. directs me to file my report by 
 ^ionday, in the matter of the two important 
 questions sent down to me by the Appeal 
 <'ourt, I must suspend further consideration 
 of these accounts to another repcut." 
 
 Dunkin, Ch. At an early period of these 
 proceedings, sin order had lieen made requir- 
 ing the creditors of the estate to establish 
 their demands l)efore the master. On 31st 
 January. lsr»0. the report of Mr. I.aurens was 
 tiled, setting forth a statement of the debts 
 and legaci«>s as e.stablished. To this report 
 exceptions were filed on the same dav by the 
 solicitor in behalf of Mrs. Hunt. 
 
 The decree of the Court of .\ppeals. filed 
 1st February, 1.S50, adverts to this report as 
 having been referred to in arginnent, but 
 which was not produced. In the decretal 
 order, it is declared, "that the creditors who 
 have proved their claims before Mr. Laurens, 
 and against who.se claims no exceittions are 
 filed, have a right to immediate payment 
 by sale," &c. 
 
 *238 
 ♦Further inquiry was directed as to tlie 
 carpent«'rs mid boat hands, and also as to 
 the extent ot Tibwiii, and whether the 
 Thompson debt was. as iK'tween Mrs. limit 
 and Mrs. Coinurn. to be charged specially on 
 those lands and negroes or upon testator's 
 whole estate. On nie.se maft.'rs the master 
 has now submitted his report, to which ex- 
 ceptions have been filed, and tlie.se exceptions 
 it is itrojutsed first to consi(h>r. No part of 
 the case has been .so embarrassing to me as 
 the inquiry whether the carpenters and sloop 
 bands jia.ss under the dt vise of Tibwin and 
 its appurtenances. The general .scheme of 
 the testator seems to have been, after pro- 
 4 Rfcii.Eq.— 7 
 
 I viding for the payment of his debts and lega- 
 cies, to disp(».se of his estate equally between 
 his two daughters and their families. 
 
 To Mrs. Hunt he gave the house in Wash- 
 ington street. Milton Ferry and tlin>e iilanta- 
 tion.s. together with the appurtenances of tin' 
 I idantations and ferry. To Mrs. Colburn are 
 given the liou.se in Charlotte street, with the 
 slaves, furniture, &c.. used in the said house, 
 ami three plantations, with tlie apimrte- 
 nances thereof: and by the final disposing 
 clau.se of his will, he dinH.*ts the rest and 
 residue of his estate to be equally divided 
 between Mrs. Hunt and Mrs. Colburn. sub- 
 ject to the trusts and limitaticais therein be- 
 fore declared, of the specific propert.v de- 
 visetl and lie(|ueathed to them respectively. 
 The incpiiry is, wlu'ther the carpenters aiid 
 sloop hands itass under the terms of the spe- 
 <ific be<|uesl to Mrs. Colburn. or constitute a 
 part of the residue, and are therefore divis- 
 ible between the daughters in equal i»ro- 
 portions. The testator owned a plantatbm 
 on Santee river, called Pleasant Meadows, 
 four inland plantations, not far from the :V2 
 mile house, in St. James .Santee. called Tib- 
 win, Mildani. ."^iiringfield and Thompsons, 
 and a farm five miles from the ferry, calleil 
 Snee farm. The.se. with Milton ferr.v and the 
 town houses, were the principal <>bjects of 
 the devises. Tibwin. as the Court under- 
 stands, was the original country residence 
 of the testator, and so continue<l till his 
 death. To Mrs. Colburn he devises and be- 
 queaths the Charlotte street house, and his 
 plantations. Mildam and Tibwin. with a tract 
 of land called Flatlield. "and all the slaves. 
 
 *239 
 cattle. *hogs. horses, mules, sheep and poul- 
 try and the tools, utensils, flats, boats, furni- 
 ture, carts, wagons, and every other thing 
 usually used attachtnl and belonging to the 
 said house and plantations." Tlie devise to 
 Mrs. Hunt is in the same terms. On the 
 part of Mrs. Colburn, it is insisted that the 
 cariienters and sloop hands fall within the 
 foregoing description. There are six car- 
 penters, to wit: Hector, Ben, Paul. Maurice, 
 Little lien and John : and six sloop hands, 
 to wit: Nat. Cim. Phil. Joe, Stewart and 
 Jack. Several witnesses were examined, 
 and there is no material discrepancy in their 
 testimony. Tibwin was the original settle- 
 ment, and the carpenters were originally of 
 the Tibwiii gang. Hut they worked at their 
 trade, and they were employed by the testa- 
 tor wherever such work was to he done. In 
 the winter they were employed at his several 
 plantations in rlie country. 
 
 In the spring they came to Snee farm or 
 worked at Milton ferry, and in the summer 
 they were hired out in town, or otherwise 
 employed by the testator. It is impossible 
 to say that they were "slaves usually used" 
 at Tibwin. or especially necessary for that 
 plantation. As lo emiiloyment. they were 
 attached to no plantation, but, as expressed 
 
 87
 
 *239 
 
 4 RICHARDSONS EQUITY REPORTS 
 
 by one of the witnesses, thej- were a gang of 
 mechanics, detached from the workers of tlie 
 plantation. And so of the sloop hands. The 
 .sloop itself is admitted to have been part of 
 the residue, and has been so treated. The 
 sloop and the hands attached to her, were 
 employed during the testator's life time in 
 bringing his crop to market, and perhaps 
 more usually in bringing wood to town for 
 Milton ferry. Although, then, neither the 
 carpenters nor the sloop hands were usual- 
 ly used at Tibwin plantation, do they '"be- 
 long" to the Tibwin gang? The master has 
 so concluded, and from several considera- 
 tions which are fully stated in his report, 
 without being entirely satisfied with his 
 conclusions, I am not prepared to sustain 
 the exception. An additional consideration 
 certainly has weight with me. These ne- 
 groes constituted a very valuable portion of 
 the testator's estate, and could iscarcely 
 have escaped his attention. If they were 
 not considered by him among the slaves be- 
 
 *240 
 longing to the *Tibwin gang, he has made no 
 specific disposition of them. When he was 
 so thoughtful as to provide for the comfort 
 of Capt. Nat and old Patty at Tibwin, and of 
 old Anne, the poultry woman and nurse, at 
 Snee farm, it is difficult to suppose that he 
 should have forgotten the carpenters or boat 
 hands, or having thought of them, should 
 have left their disposition to doubtful inter- 
 pretation. It is said, however, that to give 
 these slaves to Mrs. Colburn, exclusively, 
 destroys the equality. The master reports 
 otherwise. But the intention to make an 
 equal division, (although it has been assiimed 
 by the court as likely,) is not deducible from 
 the instrument itself. It is scarcely war- 
 rantable to resort to evidence dehors the will, 
 for the purpose of showing an intention to 
 create equality, and then, by evidence of the 
 same character, to show that the supposed 
 intention would be defeated by the con- 
 struction adopted. This exception is over- 
 ruled. 
 
 And so in relation to the extent of land 
 devised to Mrs. Colburn, under the designa- 
 tion of Tibwin, and the Thompson debts, so 
 called, the exceptions are overruled. The ex- 
 ceptions to the master's report on the ac- 
 counts of the executor are overruled, except 
 in relation to the matters now about to be 
 considered. 
 
 Among the debts of the testator, which 
 the master, by his report of 31st January, 
 1850, recommended to be paid, was an 
 amount of $2,620.87, due to various legal 
 gentlemen for professional services rendered 
 to the testator in his life time. Of these, 
 one is a debt to Messrs. Yeadon & Macbeth, 
 amounting to $580, and another to J. S. 
 Rhett, Esq., of $009.12. To this report, the 
 defendant, Mrs. Hunt, through her solicitor, 
 excepted as to the demand of Mr. Rhett, but 
 not as to that of Messrs. Yeadon & Macbeth, 
 
 98 
 
 or those of the other gentlemen. It is hard- 
 ly necessary to say that the sultsequent de- 
 cree precludes all inquiry in relation to many 
 parts of the report to which no exceptions 
 were taken. The testator died in July, 1848. 
 Towards the close of that year, the bill of 
 the executor was filed, and in May, 1849, an 
 order was entered to restrain the creditors 
 from prosecuting their demands at law. A 
 
 *241 
 bill was filed during that year by some *of 
 the devisees, against the executor. This lat- 
 ter bill was dismissed on the 23d April, 1849. 
 On the 27th March, 1850, the master paid to 
 Yeadon & Macbeth, for their costs, on the bill 
 filed by the executor, the sum of $311.25, 
 and $35 costs on what is called the cross 
 bill. In auditing the executor's accounts, 
 the master allows him credit for* the sum 
 of $1,330 paid to Messrs. Yeadon & Mac- 
 beth for professional services and ad- 
 vice given and rendered to the execu- 
 tor, between August, 1848, and February, 
 1850. To the bill of costs of Messrs. Yeadon 
 & Macbeth, $346.25; to the credit, $1,330, 
 thus given to the executor ; and to the ac- 
 count of Mr. Rhett, the solicitor of Mrs. 
 Hunt objected, as is set forth in the latter 
 part of the master's report of the 28th June, 
 1850. On the subject of the bill of costs, in 
 the circuit decree of April, 1849, no order 
 was niade in relation to the payment of costs. 
 No sub.sequent order was brought to the no- 
 tice of the Court. Certainly, the master had 
 no authority to apply any part of the funds 
 in bis hands to that effect, without a special 
 order. It is suggested in one of the excep- 
 tions, that part of the charge allowed was 
 for maintaining the interests of the executor 
 against those of the devisees. The master 
 has not reported on the objection as to costs, 
 and it must be referred back to him to re- 
 port on that subject. 
 
 In reference to the credit of $1.3.30, the 
 defendants, Mrs. Hunt and family, object, 
 and insist on their right to an investigation 
 of the claim before a jury. And they in- 
 sist on the same course in relation to the 
 claim of INIr. Rhett. In reference to the 
 claim of Mr. Rhett, my opinion has always 
 been, (and I have acted upon that opinion,) 
 that, whenever a controversy arises between 
 a solicitor of the Court and a suitor, in ref- 
 erence to the value of his services, beyond 
 the amount prescribed in the fee bill, the 
 matter should be referred to a jury. The 
 inexpediency of any other course seems to 
 me too obvious to requii'e comment. Al- 
 though that is not precisely the inquiry, in 
 reference to the credit allowed to the execu- 
 tor, the same principle is, to a great extent, 
 involved. 
 
 It is ordered, that an issue be made up In 
 
 *242 
 the nature of an *action of assumpsit, in 
 wliich J. S. Rhett, Esq., shall be the plain- 
 tiff, and executor of Wm. Mathewes, de-
 
 LAWTON V. HINT 
 
 1A4 
 
 ceased. (Icffinlaiit. (till' (Icfeiite to be coiuhu-t- 
 ed by Mrs. Hunt and family.) in wiiich tbe 
 imiuiry shall lie, as to tbe amount due to the 
 said J. S. Kht'tt. Ivstj., on the account tiled 
 with the master. And that an issue be al.so 
 made uj). in which the executor of Wni. Mat- 
 liewes. deceased, shall 1 »' i>laintift', and Mrs. 
 Hunt and family defendants, the objects of 
 w bich issue shall be, to ascertain the amount 
 which was due on acco\nit «>f the estate of 
 the testator to Messrs. Veadon & Macbeth, 
 on their demand of thirteen hundred and 
 Ibirty dollars, which is alloweil as a credit 
 l)y the master in passini: tlu> executor's ac- 
 count, the nature of the issue beinj; as for 
 money laid out, expended and paid for the 
 use of the estate, that the .said issues lie 
 tried in the Court of ("lunnion Pleas for 
 Charleston district, and that the presidiuf^ 
 .ludire be respectfully re<|uested to certify 
 the verdiit to this Court. 
 
 On all other points not specially n-served. 
 the rejiort of the nmster is contirmed and 
 made the judjiment of the Court ; and he 
 bavins reported that it is for the advantage 
 nf the infant, Mary Anna Mathewes Colburn, 
 to take the provisions made bj' the will in 
 her behalf, it is ordered that the said n.a.s- 
 ter make the election accordimrly. 
 
 Mrs. Hunt and the executor appealed. 
 
 B. F. Hunt, for Mrs. Hunt. 
 Teadon, Khett, Ciintra. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW. Ch. One of the iiuestions 
 presented by this appeal is. whether the car- 
 penters and boat hands of the testator pass 
 under the following; devise: "I f^ive to my 
 daughter, Ann Ashby Colburn. for and dur- 
 ing the term of her natural life, without 
 impeachment of waste, and without being 
 subject or liable in any manner whatsoever, 
 either as to the body or income of said 
 estate, to the debts, contracts, liabilities, 
 control or interference of her present or any 
 future husband, my bouse ;ind lot in Cliar- 
 
 *243 
 lotte *street, where I now reside, and my 
 house servants and furniture used in said 
 bouse: also my plantations, Mildam and 
 'I'ibwin. and a tract of land called Flat- 
 lield, and all the slaves, cattle, hogs, horses, 
 nniles, sheep and poultry, and the tools, 
 iitensils flats, boats, furniture, carts, wag- 
 ons, and every other thing usually used, at- 
 tadied and belonging to the said hovise and 
 jilantations ; and, after her death, then to 
 her daughter, Mary Anna Mathewes Col- 
 I urn, her heirs, executors, administrators 
 ;itid assigns forever; but should the said 
 .Mary Anna Mathewes Colburn die bef(U-e 
 .she attains the age of twenty-one or day of 
 marriage, then I give the said property, so 
 given to her, to the children of my daughter 
 Susan, to be equally divi<led amongst them." 
 
 This clause immediately succe«'ds another, 
 by which the testator gives to his daughter, 
 
 Susan R. Hunt, for life, in the same terms 
 as to impeachment for waste and control of 
 iuiy husl ;ind. his lot of land, with the imild- 
 ings tlH-reon, in Washington-street. Mazyck- 
 borough : bis wharf "lot in Ma/.yckborough ; 
 his jilantation calb'd Pleasant Meadow, in- 
 cluiling the high and pine land; his planta- 
 tion. Springfield ; his plantation called Snee 
 Farm; his Ferry place an<l Ferry; also bis 
 tract of land on Wambau creek, "und all the 
 slaves, cattle, hogs, horses, nniies, sht'cp and 
 poultry, and the tools, iMciisils, flats, boats, 
 carts, wagons, furniture, and every other 
 thing usually used and attached to and be- 
 longing to the saitl plantations and ferry ; and 
 after her death then to her ihildren living 
 at her death, tlie i.ssue of a decea.sed child 
 or children to reiire.sent and take his, her or 
 their parent's share: an«l should any of her 
 children die without issue living at his or 
 her death, then to the survivor or survivors 
 of them, share and share alike." Tbe will 
 also contains a pe* uniary legacy of .Sl'_*.- 
 
 000 to the children of Mary P>o.vd, a deceas- 
 ed daughter of te.«<tator: a directi(Ui that 
 his estate be kept togetlu'r until, from the 
 crops and other income, the pecuidary b'ga- 
 cy above mentioned, and the debts of tes- 
 tator should be fully paid and satisfied; 
 and a devi.se of the rest and residue of his 
 estate, in eiiual shares to his daughters, 
 Mrs. Hunt and Mrs. Colburn, "subject, bow- 
 
 *244 
 ever, to the *trusts and limitations herein 
 declared of the property herein Revised and 
 bequeathed to them.'' Ani>ther clause of the 
 will has some bearing as to the question 
 concerning the carpenters and boat hands, 
 certainly so far as Nat, one of the boat 
 hands, is involved: "It is my wi'l that my 
 slave, old Nat, (commordy called Capt. Nat.) 
 and old Patty, the dairy woman, at Tibwin 
 plantation, and old Anne, the poultry wo- 
 man and nur.se at Snee Farm, be allowed to 
 reniain and reside on the plantations where 
 they now respectively are and reside: and 
 
 1 request my daughters, in consideration of 
 the faithful services of the said slaves to 
 me, that they will treat them with all the 
 kindness t-onsistent with their .state and con- 
 dition, and pay to each of them the .sum of 
 ten dollars annually during their .several 
 lives." Of the .'i70 slaves owned by the tes- 
 tator at the time of his death, none is named 
 in the will except the three mentioned in 
 the last clause, who are severally denonn- 
 nated old, and reconnnended to the special 
 kindness of the two iirincipal legativs. Of 
 the whole number of slaves, according to the 
 circuit dei-ree. Mrs. (^olburn would take 
 'J04 and Mrs. Hunt 10(1 It is likely that 
 the real estate devised to Mrs. Hunt is of 
 greater value than that devi.sed to Mrs. Col- 
 burn. There is, however, no distinct ex- 
 pression in the will of the purpo.se of the 
 testator to make eijual donations to these 
 two legatees for life, except as to the residu- 
 
 9U
 
 *244 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 ary estate. Tlie remainders after their life 
 estates severally are quite different. 
 
 It is manifest from the testimony, that the 
 six carpenters were not usually, or for the 
 greater portion of their time, employed or 
 'used' upon any of the plautations devised 
 to Mrs. Colburn, nor 'attached' nor 'belong- 
 ing' to any of these plantations, except that 
 some of them had their cabins and patches 
 at Tibwin, and some at Mildam. They were 
 as a corps separated from the laborers of 
 the plantation and never engaged in agri- 
 cultural operations, except for a short time 
 upon some sudden emergency. In the win- 
 ter, they worked at their trade at the vari- 
 ous places of the testator, as the exigencies 
 of these places required their peculiar serv- 
 ice ; and in the summer, they were usually 
 
 *245 
 let to hire in the *city of Charleston. The 
 testator mostly resided at Tibwin in the 
 winter, and at Charleston in the summer. 
 Tibwin was the original hive from which 
 the other plantations were chiefly settled. 
 An 'allowance' list, and a 'working' list, 
 were kept by the overseer at Tibwin ; and 
 the carpenters were on the former list, but 
 not on the latter ; which, however, also 
 omitted the names of such of the negroes 
 as, from being superannuated or immature, 
 were unfit for labor. But it appears that 
 the carpenters drew their rations indiffer- 
 ently from the plantations of the testcxtor, 
 wherever they happened to be employed. 
 
 The facts concerning the boat hands are 
 of the same general character. They, too, 
 were detached from the operations of Tibwin. 
 Their ordinary employment was on board the 
 sloop of the testator, in carrying to market 
 the crops from his several plantations, of 
 which Pleasant Meadow, devised to Mrs. 
 Hunt, was most productive; and in carrying 
 wood to the Ferry, devised to Mrs. Hunt, 
 which was navigated by steam. 
 
 It is manifest, that the words "usually 
 used, attached and belonging to the said plan- 
 tations," or some of them, must limit and 
 qualify the bequest of slaves to Mrs. Colburn, 
 as otherwise the description of the subject, 
 "all the slaves," evidently referring to some- 
 thing to be added, would either carry all the 
 slaves of the testator to this legatee, which is 
 inconsistent with the whole scheme of the 
 will, or would be defective and unmeaning. 
 Whether the words "usually used"' form part 
 of the description of the slaves bequeathed, or 
 are to be confined to the tools and other in- 
 animate things bequeathed, is too doubtful 
 for the matter to have nnich effect either way 
 in the present discussion; and it is too un- 
 important to be closely considered. The re- 
 maining words, "attached and belonging to 
 the plantations," are properly conceded to be 
 descriptive of the slaves bequeathed. In a 
 strict sense, slaves 'attached' to a plantation 
 are like some of the ancient villeins of Eng- 
 land and some of the modern serfs of Russia, 
 
 too 
 
 adscripti glebjie, inseparably connected with 
 the soil: and bj' the most liberal construction 
 that can be tolerated, slaves 'attached to a 
 
 *246 
 plantation' *must be connected with the agri- 
 cultural operations of the place, either as 
 actual laborers, or as those who have been 
 laborers, or are expected to be laborers. The 
 superannuated and the immature, closely con- 
 nected with the actual opei'atives, are in the 
 same predicament as laborers. There is 
 scarcely a perceptible shade of difference in 
 meaning between slaves attached to a planta- 
 tion, and slaves belonging to a plantation. 
 
 It is obvious from the whole tenor of this 
 will, that the testator usetl the term planta- 
 tion in a sense somewhat strict, as a place 
 where agricultural operations are conducted. 
 In the devise to Mrs. Hunt, he speaks of 
 Pleasant Meadow, Springfield, and Snee 
 Farm, each as a plantation, and contra-dis- 
 tinguishes them from his Ferry place and his 
 tract of land on Wambau creek: and in the 
 devise to Mrs. Colburn, he speaks of Mildam 
 and Tibwin as plantations, and of Flatfield 
 as a tract of land. To the latter, he alsa de- 
 vises a house and lot in Charlotte-street and 
 'the house servants and furniture used in 
 said house.' To Mrs. Hunt he gives the slaves 
 appurtenant 'to the said plantations and 
 ferry,' and to Mrs. Colburn, he gives the slav- 
 es appurtenant 'to the said house and planta- 
 tions.' Under this bequest to the latter, 16.5 
 slaves, answering all the terms or description, 
 pass without dispute, and it is claimed that 
 there pass 12 more, the carpenters and boat 
 hands, who belong to the plantations in some 
 loose and indeterminate sense only. 
 
 Where the terms of a gift, describing the 
 subject, refer to extrinsic facts, we necessa- 
 rily resort to parol evidence to ascertain what 
 is comprehended within the terms of descrip- 
 tion. In the present case, we must learn 
 from the mouth of witnesses what slaves are 
 attached and belong to the plantations. But 
 where the context of the instrument of gift 
 affords no contrary indication, we must al- 
 ways understand the words of the donor, de- 
 scriptive of the subject of gift, in their .strict 
 and primary sense, if a subject be found to 
 which the words so interpreted apply; and 
 evidence of extrinsic facts, such as the inten- 
 tion of the donor as an independent fact, is 
 inadmissible to apply the words to any other 
 
 *247 
 sub*ject. If the terms of description, strictly 
 interpreted, apply to one subject, they cannot 
 be made to apply to another subject in a sec- 
 ondary or deflected import. Wigram on 
 Wills, 17. Thus in Oxenden v. Chichester, 3 
 Taunt. 147, 4 Dow, 65, under a devise of tes- 
 tator's 'estate of A.shton,' where an estate sit- 
 uated at Ashton was found by the evidence, 
 other lands of testator not situated at Ashton 
 were not allowed to pass, although testator 
 called the whole by the name of his 'Ashton
 
 LAWTOX V HINT 
 
 *24n 
 
 estatp,' and his stoward kopt the accounts 
 rchiting to the same uihUt that name, and 
 conclusive evi(hMice was tendered of tlie inten- 
 tion of testator to d«'vise the whcde estate. 
 Tlie present will affords an illustration. It 
 has lieen already decided in this case, that, 
 under the heipiest of 'flats and hoats,' tiie 
 sloop of testator is not t,'ivi>n to Mrs. Colhurn. 
 It may i)e remarked, that the consistency of 
 the construction of this will could he hardly 
 vindicated, by which the sloop did not pass, 
 and the hands, the instruments of navi;ratinf^ 
 it, did pass: hoth, if one, lieint; api)urtenant 
 to the plantation of Tihwin. 
 
 Against the conclusion to which this rea- 
 soning' tends, the master relies ui)on the 
 fact, that the carpenters and boatmen had 
 their patches and cal)ins at Tibwiii. l'>ut 
 this fact has little wei.trht, when we remember 
 that Tibwin was thi' original place of testa- 
 tor, and when we consider the intermixture 
 of the families of slaves of neijihborinj; plan- 
 tations. If a negro who has a wife, and a 
 cabin, and a patch on a [dantation, is to be 
 regarded as belonging to it, many slaves 
 would be within the description who are own- 
 ed by others than the proprietor of the plan- 
 tation. 
 
 The Chancellor, who adopted, with much 
 hesitation, the conclusion of the master, was 
 impressed by the consideration that the tes- 
 tator thoughtfully provided for the comfort 
 of three old negroes, and yet left the disposi- 
 tion of his valuable tradesmen to doubtful 
 interi)retation of his Avill. The absence of 
 specific disposition concerning these particu- 
 lar negroes has little influence, for it is the 
 scheme of the will to dispose of testator's 
 slaves by general terms of description, witli- 
 out iMuimeration ; and theiv is no ground for 
 preference of the special bequests to Mrs. 
 
 *248 
 
 Hunt and Mrs. Colburn, *over the residuary 
 clause, in which the testator, by careful pro- 
 vision as to tru.sts and limitations, manifests 
 his purpose of leaving a valuable residue. 
 
 It is argued that the declaration in the 
 will, that old Nat and old Patty 'are and re- 
 side' at Til)win plantation, is as true of all 
 the other slaves in controversy as of Nat, and 
 demonstrates that they are 'attached and be- 
 longing" to that plantation. If this declara- 
 tion be made conceriung >.'at, which is ambig- 
 uous, .still mere residence at a plantation does 
 !iot make a slave appurtenant to it. Hesides, 
 the express disposition of Nat by this clause 
 of the will, leads to the conclusion, that the 
 testator had not intended to describe him by 
 the general words of the previous becpiest to 
 Mrs. Colburn: and the .same application of 
 the general words unist be made to all who 
 are in the same catt'gory. It seemed to be 
 conceded at the bar that Nat was bequeathed 
 to Mrs. Colburn by tlu' latter clause; and we 
 are content to allow this construction. 
 
 The evidence that the slaves in question 
 
 were included in the inventory of projierty at 
 Tibwin — a subse<iuent arrangement for con- 
 venience — if admissible, has no influence on 
 the con.struction of the will: and. I think, was 
 inadmissible. 
 
 In our ojiinion, the carpenters and i>oat 
 hands are bequeathed by the n-siduary clause 
 of the will. 
 
 The next matter of apjieal relates to what 
 are called the Thonq)son iu'gnH>s; and involv- 
 es the question wliether the debt for which 
 the estate is liable on account of the.se ne- 
 I groes, as between the two principal legatees, 
 constitutes a charge upon the estate general- 
 ly, or a specific llt-n upon the negroes them- 
 selves. 
 
 The slaves denominated the Thomp.><on ne- 
 groes were, at the time when they were re- 
 spectively purchased, 1!» in numlter, namely, 
 Zachariiis, Ca-sar, Hella, I'aul, I'anny, Aug- 
 ust, .Inly Abraham. Sarah, Liddy, Wanetta 
 or Henrietta, Joe, Tolly, Liddy, Nanny, Caro- 
 line, Amy, Die and (.'baidin. 
 
 Of these slaves, li. 1'. Colburn. husband <jf 
 Ann Ashby Colburn, purcha.sed Zacharias 
 from I'oyas, executor of Hall, on .lanuary 10, 
 1845, for $010, and paying a portion of the 
 
 *249 
 
 purchase *money in cash, for the balance 
 gave the bond of hiuL-^elf and testator of 
 same date for .$406. with interest from date, 
 payable in three e<iual annual instalments, 
 the last being on January 10, l.s4.S: and on 
 same day gave a mortgage of the slave to 
 secure the bond. The interest on this debt 
 was paid by Colburn to June 10. ls4s. 
 
 On February i;j. l,s-l;j. B. P. Colburn pur- 
 chased from S. M. I'ringle, for .5r>.:!N0, Ca'sar, 
 and the nine following in the order of names 
 al)Ove, and paying a part of the purdiase 
 money in ca.sh ; for the balance gave the 
 bond of himself and tesrattu- for .'<."..'.t00. with 
 interest from date, payable in three etiual 
 annual instalments, the la.st being due on 
 Feiirnary l.'l, 1.S4S ; and on .same day gave a 
 mortgage of these slaves, (and of another 
 named P'rank.) to secure the lutnd. Interest 
 has been paid to June 8, 1S4S. 
 
 On February 10, 1840, the testator i»ur- 
 chased from E. (J. Huger, for .i;i.',."»00, Joe 
 and the seven following in the order of 
 names above, and on same day gave the bond 
 of himsi'lf and B. P. Colburn for .$1,000.07, 
 with intere.st from date, payable in two in- 
 stalments on February 10, 1847, and Febru- 
 ary 10, 1848; and on the same day gave a 
 mortgage of the slaves to secure the bond. 
 Interest has been paid to February 10, 1S4S. 
 
 These three mortgages were duly recorded. 
 
 An indenture was executed by tiie testa- 
 tor and H. P. Colburn. August lil, 1S47, by 
 which Colburn in consideration of his indebt- 
 edness to testator in the sum of $7. 7!).") on 
 jiromissory notes drawn by Colburn and in- 
 dorsed by rest;it(tr, conveyed to testator the 
 Thompson land, (which, it seems, by state- 
 
 101
 
 *249 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 ments at the bar, Colburn had purchased for i 
 $600 in cash,) and the nineteen negroes above | 
 named, with four others. Maria and Thom- 
 son, children of Liddy (Pringle,) and a child 
 of Amy and a child of Nanny, to testator, 
 in trust, for tlie separate use of Ann Colburn 
 for life, not liable to the debts of her existing 
 husband ; and if she should survive, without 
 issue of the marriage, to her in fee ; and 
 upon her death, leaving her husltand, B. P. 
 Colburn, and issue of their bodies, for the 
 
 *250 
 joint *and equal use of such husband and 
 issue, without liability for husband's debts, 
 for the life of B. P. Colburn, and on his 
 death to the issue; and if B. P. Colburn 
 should survive his wife, without issue of the 
 marriage, then the whole to him for life, 
 with power of appointment by will as to one- 
 half, the other half descending to the next of 
 kin of his wife. The notes referred to in 
 the consideration of said deed were drawn 
 and indorsed from October 3 to December IS, 
 1846, and were payable from January 2 to 
 March IS, 1S47. 
 
 The will of the testator bearing date Jan- 
 uary 21, 1848, contains the following clause: 
 '•And whereas, in and by a deed bearing date 
 the twenty-first day of August, in the year 
 of our Lord one thousand eight hundred and 
 fortj^-seven, made by and between myself 
 and B. P. Colburn, the said B. P. Colburn, in 
 consideration of the debt stated in said deed, 
 and my i-elease of the same, conveyed to me 
 a plantation and twenty-three slaves, therein 
 described, for the trusts and purposes set 
 forth in said deed ; and whereas the said 
 plantation and negroes were purchased and 
 paid for by me, now I do direct, as a condition 
 precedent to the beyuests and devises, by 
 me herein made to my daughtei", Ann A. 
 Colburn, and my grand-daughter, ilary A. M. 
 Colburn, that the said plantation and ne- 
 groes mentioned in said deed, so far as shall 
 lie in the power of the parties interested 
 therein, shall be held, not to the uses, trusts, 
 and limitations declared in the said deed, 
 but to the trusts and purposes declared in 
 this my will of and concerning the property 
 devised and bequeathed to my said daughter, 
 Ann, and her child ; and on failure of the 
 parties interested complying with my will iu 
 this particular, I revoke and annul all of the 
 devises and bequests herein made to them ; 
 and I devise and bequeath the property 
 above devised and bequeathed to them, to my 
 daughter, Susan B. Hunt, and her children, 
 subject to the same trusts, and for the same 
 estates, as the property herein devised and 
 bequeathed to them is subject to." 
 
 It has been already decided by the Court 
 of Appeals, that, in this clause, the testator 
 
 *251 
 did undertake to devise the Thompson *land 
 and negroes, so as to subject the parties in- 
 terested therein to an election to take under 
 the will or the deed, and so as to subject 
 102 
 
 this property to rateaiile liability for the 
 debts and pecuniary legacies of the testator. 
 Mr. and Mrs. Colburn have elected to take 
 under the will, and their infant daughter un- 
 der the direction of this Court has made 
 the same election. 
 
 The argument for the appellants proceeds 
 on the assumptions, that the testator de- 
 clared in his will, which must be assumed to 
 be true, that he had purchased and paid for 
 the Thompson land and negroes ; that iu this 
 statement as to payment he referred to his 
 indorsement of the notes of B. P. Colburn, 
 which, as to liability upon the maker, he had 
 released by the deed of August 21, 1847 ; 
 that these notes were drawn and indorsed to 
 raise money for the discharge of the bonds 
 given for the negroes, and that by subroga- 
 tion of the representative of the testator to 
 the liens of the mortgagees, or some general 
 e(iuity, the negroes should be subjected to 
 liability for the unpaid purcha.se money con- 
 tracted to be given for them. 
 
 The foregoing statement of facts shows 
 that there is no basis for this argument. 
 When the testator declared that he had pur- 
 chased and paid for this proiierty, he mani- 
 festly meant that he had been obliged to pay 
 •17,795, the sum of the notes indorsed by him 
 lor his son-in-law ; not that he had paid the 
 original purchase money of the slaves. There 
 is no evidence whatever that these notes 
 were drawn and indorsed to raise money for 
 the payment of the bonds given for the orig- 
 inal purchase of these negroes, in one of 
 which testator was the principal, and in the 
 other two surety ; and all the probabilities 
 of the case are on the other side. The notes 
 are ten in number, for the sum of $7,795, all 
 payable in the early part of 1847 ; the bonds 
 are three in number, for the aggregate sum 
 of .$5,912.67, the last instalments of which 
 were payable in the early part of 1S4S. 
 There is no conformity in date, sum or ma- 
 turity. The fact that the interest on these 
 bonds was punctually paid, is ti'^ated as evi- 
 dence of fraudulent concealment from the 
 testator that the bonds were outstanding and 
 
 *252 
 un*paid ; but we do not perceive how com- 
 pliance with legal obligation is evidence of 
 fraud, nor how the testator could have been 
 deceived into the belief that his own bonds, 
 in one of which he was principal debtor, 
 were paid before maturity by an insolvent 
 son-in-law. He had constructive notice of 
 the existence of the mortgages from their be- 
 ing recorded, iu all probability actual notice ; 
 and there is not a tittle of evidence of any 
 misrepresentation to him. Sufficient reasons, 
 which are set forth in the appeal decree, ex- 
 isted for his change by will of the trusts set 
 forth in the deed of August 21, 1847, which 
 were doubtless satisfactory to him at the 
 date of the deed, as they were in exact con- 
 formity to the marriage settlement between 
 Colburn and his daughter in 1834.
 
 TELFAIR V. HOWE 
 
 *254 
 
 It appPi'^i's to us tlijit this liiiiiKli of tin: 
 f'ase is goviMru-d by tho autliority of Fniu<is 
 V. Lelirc, 1 I{i<li. Kq. L'71. with wliicli \vi' aiv 
 satisfied. Tlu-re Aim Lehre piiroliasiHl a 
 lilaiitation, and for the iiayiueiit of the pur- 
 chase money pive lier iioiul secured hy a 
 luortjrajje on tiie phmtalion: slie afterwards 
 made a voluntary j;ift of tite plantation In 
 trust for Mrs. UaUer, and then died leaving,' 
 the hond unpaid. It was lield, that her es- 
 tate was hound to i)ay the liond and relea.se 
 the land from the lien of the mort;,'a;.'e. The 
 Court, referrinix to \'illers v. Heaumont, 1 
 \ ern. l(t(t, scouts the proposition that one 
 may iiur<hase property, then make a gift of 
 it. and afterwards revoke the ]i;ift hy com- 
 pellini: the donee to jiay the donor's debt. 
 Sulistantially the testator was the settlor in 
 the deed of Au^'ust. 1N47, as he paid the t-on- 
 .sideration and directed the tru.st. 
 
 We are of oiiinioii that the present appeal 
 is a naked attempt to make a leiracy to a 
 wife and daui-'liter liaide for (he delit of the 
 husband and father, who takes no interest 
 under the will : and we conclude that the 
 ^'eneral estate of the testator must pay the 
 testator's debts 
 
 The ne.xt subject of appeal is in reference 
 to the e.xecutor's accounts. All the objections 
 to the report of the master in this matter 
 were abandoned at the liearinji here, e.xcept 
 in relation to the account of Messrs. Yeadon 
 
 *253 
 & ]Macbeth, the counsel of the *executor ; in- 
 deed these matters were adjud>;ed by the 
 former appeal decree. In relation to this ac- 
 count of the counsel, the t'hancellor directed 
 an issue at law; and the executor appeals 
 from this order. The counsel fee in this 
 case was paid by the executor after the date 
 at whi<-h he wa.s directed by the order of 
 this Court to pay over the funds in his hand.s 
 to the master. We are not disposed to in- 
 terfere with the order of a Chancellor in a 
 matter of discretion. To guard against mis- 
 apprehension, it is proper to say that we do 
 not recognize, as a rule of lu-ocedure, that a 
 Chancellor must direct an i.ssue at law in 
 case of dispute between client and counsel as 
 to the amount of conu)ensation. The orgaiu- 
 zation of this Court affords the means of 
 trying and determining such a cpiestion sat- 
 isfactorily. Much less are we inclined to 
 aliandon to the other Court the determlna- 
 tbtn of the question a.s to what party shall 
 lie liable for fees that are rea.sonalile. The 
 ade(iuacy of the compensation is di.stinct 
 from the liability of the party to pay for the 
 services. It may Iw that large compensation 
 is due to counsel for services to a triistee; 
 but that the trustee is litigating for his own 
 lieneht and should himself sustain the ex- 
 pense. We are content as to the Chancel- 
 lor's order in this particular, as a matter of 
 discretion, so far as the quantum meruit is 
 concerned ; but we reserve the right of de- 
 
 ternnninu' who shall pay the reasdnable fee. 
 
 The appeal brings further into question the 
 extent of land, i)assing as residue, and order- 
 ed, as it is said, to l»e sold for partition, 
 inchuling, it is said, some land exclusively 
 claimed by .Mrs. Hunt. No order for sale of 
 such residue has been produced to us, and 
 we conclude nothing as t«» tlie title of the 
 parties. If there he an order for sale, the 
 master should not sell disputed premises, but 
 he should inquire into the facts and report 
 to the Ctairt. This matter is reservinl. 
 
 It is adjudged ami de<-lared. that thi- car- 
 penters and boat hands, except Nat, are not 
 beiiueathed to Mrs. Ccdhurn, but pass under 
 the residuary clause of testator's will; and 
 
 ♦254 
 that Nat is specifically *bequeathed to Mrs. 
 Colburn: and it is ordered and decreed that 
 the account be taken by tlu* master aciord- 
 iugly. 
 
 It is further ordered and (Unreed. that the 
 issue at law directed by the Chancellor, as to 
 the at'count of Yeadon & McBeth, be confined 
 to the reasonableness of the conqiensat ion 
 claimed for the .servic»'s rendered by the 
 counsel. 
 
 It is further ordered and decreed, that in 
 all other respects the circuit decree be af- 
 tirnu'd and the appeal be dismissed. 
 
 JOHNSTON, DUNKIN and 1>.\K(;.\N, CC, 
 concurred. 
 
 Decree modified. 
 
 4 Rich. Eq. 254 
 
 ISAAC TKI-FAIU. Kxnr.. v. lloWK ot al. 
 
 (Charleston. Jan. Term, lS."»i;.) 
 
 [WiJlK <S=>7:54.] 
 
 Testatrix by the lltii clause of her will be- 
 queatliod to A. C. "one thuusaiul dollars to 1)0 
 placed at inten'st by my executors for her 
 use. and given to her on her marriage; at her 
 death to be given to her niotln i:" after several 
 peeiniiar.v i)eiiuests she t-oncluded tiie ll'tli clansc 
 of her will as follows: "All tlie above lei^aeies 
 must be paid out of the interest oli my estate, 
 or bonds, in suceessiou as herein stated above." 
 A. C. having; married, lutd, that she was entitled 
 to interest on lier legacy from one year after 
 the death of testatrix. 
 
 [Kd. Note. — For other eases, sec Wills, C<'ut. 
 Dig. § 1S.")1; Dee. Dig. <©=j7o4.1 
 
 Before Caldwell, Cli.. at Charleston, June, 
 1S4!>. 
 
 Caldwell, Ch. Mrs. Ann Timothy made her 
 will on the .'Id of June lS.'i7, and among other 
 things, biMjueatlu'd by the 'Jth clause as fol- 
 lows: "I do leave and bequeath to Ann Tinj- 
 othy Cleland, daughter (d" my friend Maria 
 S. Cleland, one thou.saiid dollars, to be 
 placed at interest by my executors for her 
 use, and given to her on her nmrriage; at 
 her death to be given to her mother, the 
 said Maria S. Cleland." After beciueathing 
 several other pecuiuarj' legacies, she cou- 
 
 ^=7Kor other cases see same topic and KEY-NL'MUli'K ia all Key-Numbered Oigesis aud Indexes 
 
 103
 
 *2o4 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 c-liules the 12th clause of hei* will as follows: 
 "All the above legacies must be paid out of 
 the interest of my estate, or bonds, in succes- 
 sion, as herein stated aboA'e." Ann Timothj' 
 Cleland has intermarried with Captain M. 
 
 =1=255 
 *S. Howe, of the United States Army, and 
 the executors have paid off all the legacies 
 that preceded hers, and have tendered the 
 sum of one thousand dollars to her and her 
 husband, «hich they refused to receive, un- 
 less the executor would pay them the in- 
 terest thereon, from one year after the tes- 
 tatrix's death ; and the question is, are they 
 entitled to the interest? 
 
 Interest is allowed on ^legacies, either from 
 the words used in the will, from the relation 
 of the legatee and testator, or from the ne- 
 cessity of the legatee. This case cannot come 
 within the two last classes, and must there- 
 fore turn iipou the construction of the will. 
 
 When no time is specified for the payment 
 of the legacy, the general rule is that it shall 
 bear interest after one year from the tes- 
 tator's death ; this probably arose from the 
 practice of the Ecclesiastical Courts in Eng- 
 land. 
 
 Within that time, it may be presumed the 
 pe-i'sonal estate has been reduced into posses- 
 sion by the executor. Our Act (1789, P. L., 
 494) protects administrators and executors 
 from suit, for the nine mouths succeeding 
 the death of the intestate or testator, and 
 allows his legal representative twelve months 
 to ascertain the debts due to and from the 
 deceased. The phraseology used in the will 
 is peculiar: '"one thousand dollars, to be 
 placed at interest by my executors for her 
 use, and given to her on her marriage." If 
 the testatrix had stopped here, it would not 
 admit of doubt that she intended the legatee 
 should enjoy the use of the sum bequeathed 
 to her, either before or at her marriage. If 
 the corpus of the legacy was Intended to be 
 given to the legatee at her marriage, and no 
 interest to be allowed on it, why should she 
 have made it the duty of her executor to 
 place the one thousand dollars at interest for 
 her u.se? But it has been argued, that the 
 concluding sentence of the 12th clause of the 
 will shows that interest was not intended to 
 be given, and that the legatee cannot claim it 
 under the general rule, as the preceding leg- 
 acies were to be paid in succession before it, 
 
 *256 
 and the interest of the estate and *the bonds 
 were insufficient at that time to permit the 
 means of placing the one thousand dollars at 
 interest. 
 
 The impracticability of paying the debts, 
 or of collecting the funds of the estate, can- 
 not change the rule. In Greening v. Barker, 
 relied on by Lord Redesdale, in Pearson v. 
 Pearson, 1 Sch. and Lef. 12, the fund did 
 not conie to be disposable for the payment of 
 legacies, till near forty years after the death 
 
 104 
 
 of the testator, and yet they were h(^ld to 
 bear Interest from the year after h:s death, 
 and the Chancellor says: "The Court there 
 was of opinion that it was a general set- 
 tled and fixed rule, that pecuniary legacies 
 bear interest from the expiraticm of twelve 
 months, if there should at any time be a fund 
 for the payment of them." 
 
 In Gillon v. Turnbull. 1 McC. Eq. 152, the 
 words of the will \Nere as follows: "to be 
 paid out of the income of my estate, as soon 
 as convenient, after the expiration of one 
 year from the time of my decease," and the 
 executor resisted the demand of interest on 
 the legacy, on the ground that the income of 
 the estate had not been adequate to pay the 
 annuities and legacies, and that it would 
 have been necessary to have sold a part of 
 the principal of the estate to raise the mon- 
 ey, which was contrary to the testator's in- 
 tention ; the Court, however, not only recog- 
 nized the will, but held, that if the different 
 and apparently contradictory expressit)ns of 
 the will left the intention of the testator 
 doubtful, the rule would apply. 
 
 The testatrix having separated a specific 
 sum from her general estate, raises a pre- 
 sumption that it was to be an accumulating 
 fund for the use of the legatee, and that in- 
 terest should accrue before the eveiit upon 
 which it was to be given to her, and the 
 mere designation of the sources from which 
 it was to be derived, ought not to abridge 
 her rights or change the rule. 
 
 I am therefore of opinion, that the legatee 
 and her husband are entitled to interest ou 
 her legacy of one thousand dollars, from 
 one year after the death of testatrix. 
 
 The next question is, as to the bequest to 
 the American Bible Society of JSew York, 
 
 *257 
 
 and to the Missionary Society of New *York, 
 under the 25th clause of the will. The ex- 
 ecutor had not found any Society that an- 
 swers the description of the Missionary So- 
 ciety of New York, and therefore submits the 
 que.stion, whether the legacy be not lapsed 
 and the distributees of the testatrix entitled 
 to it. I think this (juestion at present is 
 prematurely presented ; the mere enciuiry ou 
 the part of the executor, however diligent, 
 is not of itself sufficient to deprive a legatee 
 of the legacy — it may be a good ground on 
 his not being able to find him to stop the 
 interest, but before the legacy is declared 
 lapsed, or it is deemed there is no such lega- 
 tee, the facts must be judicially ascertained; 
 this can only be done by evidence, after the 
 motion required by law. 
 
 It is therefore ordered and decreed, that 
 Capt. M. S. Howe and Ann T., his wife, are 
 entitled to the interest on the legacy of one 
 thousand dollars, bequeathed to her by the 
 testatrix, from one year after lier death ; and 
 that it be referred to the master to ascertain 
 and report, after publication of notice there-
 
 TELFAIR V. HOWE 
 
 '•zm 
 
 of, In some of tlu> New York imiiors, whether 
 there be any Society aiisweriiij; the deserip- 
 tioii of "The Missionary Society of New 
 York ;" and that lie iiave h-ave to report any 
 special matter. 
 
 From so nuu h of ('haiuellnr ('jildweHs de- 
 cree as allowed inteicst on .Mrs. lldwe's leg- 
 acy, the executor ajipeaU'd. 
 
 Memndnger. for Mi. and .Mrs. Howe. 
 I'orter, contra. 
 
 At June Term. ls.">o, the master having re- 
 ported that there was no sue h Society in ex- 
 istence as the .Missionary Society of New 
 York, his Honor ("hanceilor Dunkin tiecreed 
 that the American Bible Society of New York 
 Nvas entitled to only one-half of the becpiest 
 iimh'r the iMtli clause of .Mis. Timothy's will. 
 From this decree an appeal was also taken. 
 
 At January Term, ISol. the cause was 
 heard on both app-.'als. The appeal from 
 Chancellor Dunkin's decree was dismissed, 
 (see ."! Ivich. Im]. L'.'Jil.) and tl'.c appeal from 
 
 *258 
 Chancellor Caldwell's *(lecree was suspende<l, 
 as apiiears by the following opinion deliver- 
 ed by 
 
 DAR(;AN, Ch. The first appeal that will 
 lie considered, is that taken from the decree 
 of Chancellor Caldwell. June Term, 1.S40. 
 The question made arises under the follow- 
 ing circum.stances: .\nn Timothy, by her will, 
 dated June .!, 1S.'!7, in the ilth clause, be- 
 queaths as follows: "I do leave and beiiueath 
 to ,\nn Timothy Cleland, daughter of my 
 friend, Maria S. Clel;ind, one thousand dol- 
 lars, to be placed at interest by my exe<-utors 
 for her use, and given to her on her mar- 
 riage; at her death to be given to her moth- 
 er, the said Maria S. Cleland." .\fter giving 
 eight pecuniary legacies, amounting in the 
 aggregate to .'FD.OOO, she concludes the 12th 
 clause as follows: "All the above legacies 
 mu.st be paid out of the inter«>st of my estate, 
 or bonds, in succession, as lier«Mn stated 
 above." 
 
 The condition on which .Vnn Timothy Cle- 
 land was to receive her legacy has happened. 
 She has intermarried witli Caitt. M. S. IIi»we, 
 who is one of the defendants. The executors 
 have tendered to Cai>t. and Mrs. Howe the 
 legacy of one thousand dollars, but without 
 interest ; and the (piestion of interest is the 
 matter in controversy between these parties. 
 
 It is contended, on the part of the execu- 
 tors, that by a proper con.struction of Ann 
 Timothy's will, the eight lirst pecuniary leg- 
 acies were intended to be paid only "out o! 
 the interest of the estate or bonds" of the 
 testatrix; that they were to be paid in the 
 order of succ(>ssion in which they were given 
 in the diflerent clauses of the will ; and that 
 therefore each of said legacies was only due 
 and payable, after the expiration of sm-h 
 time, as the interest realized would entitle 
 it to be paid in the order of succession pre- 
 
 scribed in the will. Their argument, in oth- 
 er words, is, that this is not an interest bear- 
 ing demand until it was due, and that it was 
 not due, or demandable, until the executors 
 h.ul come into the po.ssession of assets, aris- 
 , ing fnun interest, to Jtay both this legacy 
 ■and tho.se given in the preceding clauses; 
 I which last, actordiiig to the construction of 
 •259 
 the appellants, are enti'led *to piiority of 
 payment. They further assert, as a matter 
 of fact, that the funds which, according to 
 their construction of the will, the testatrix 
 has provided for the payment of this legacy, 
 I have only be<'n realized at a particular time; 
 from which time tluy are willing to account 
 I for interest. To support the const ru<-tion con- 
 j tended for by the api»ellants, it would also 
 I be necessary for them to show that the fatts 
 1 on which it rests did actually exist. Hut on 
 I looking into the brief, for the purpo.se of ad- 
 I judging the (juestion thus made, we tind there 
 are no data as to the facts, by which a judg- 
 ment could possibly be formed. It was a.s- 
 sumetl at the bar, that interest enough to pay 
 this legacy could not po.ssibly have been made 
 until a given period, and certain unolHcial 
 statements as to the assets and interest bear- 
 ing demands of the estate and of its debts, 
 were alluded to, and portions of them were* 
 read. 
 
 liut these were admitted to be mere i»ri- 
 vate statements, not judicially before the 
 Court. ^Vhat was the amount and value of 
 the whole e.state, and the amount of the re- 
 siduary estate, of whal it tonsist.'d. how 
 much the executors realized annually in the 
 way of interest or otherwise, and what 
 amount of debts and liabilities exi.-ted, has 
 not been lirought to the view of the Court. 
 I'nder these cin-um.stances. the Court is not 
 disposed, at the present time, to itroceed to a 
 tinal judgment. Cpon all the mattv'is above 
 nameil information isdesireil. The judgment 
 of this Court on this ai»peal will be su>pend- 
 etl for the present. .\nd it is ordered, that 
 it be referred to the master to emiuire and 
 report as to all the facts above mentioned, as 
 matters on which this Court desires informa- 
 tion ; each party to have the right of tiling 
 exceiitions to the master's report, and bring- 
 ing the same to a hearing before the Circuit 
 Court. 
 
 .lollXSToX. DLMvIN and WAUDl.AW, 
 CC, concurred. 
 
 In oliedieiire to the direi'tions ct>ntained in 
 the aliove opinion, the master made his re- 
 liort, in which he stated that .Mrs. .Vim Tim- 
 othy died about M;ii( li 1, 1S41 ; ttial her 
 
 -260 
 whole estate con*sisled of bonds, amoiriling 
 in tlu' aggregate, at the time of her death, to 
 .1::.MI.<;:j;i.S."), besides interest then due to the 
 amount $l,S0l'.;)U; that her debts amounted 
 
 Wo
 
 *260 
 
 4 RICHARDSON'S EQUITY RErORTS 
 
 to $829.04; that five pec-uiiiary legacies, 
 amounting to $7,000, were given by the will 
 before the legacy of $1,000 to Miss Cleland 
 (Mrs. Howe ;) and that if the legacies were 
 payable in their order out of interest realized 
 by the executors, Miss Cleland's legacy was 
 not payable until March 1, 1847. 
 
 At this Term, (January Term, 1852,) the 
 Court of Appeals announced its final judg- 
 ment as follows: 
 
 PER CURIAM. The Court has considered 
 the appeal taken from the decree of Chancel- 
 lor Caldwell in this case, and concurs in the 
 said decree ; and it is ordered that the same 
 be aflSrmed, and the appeal dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN and 
 WARDLAW, CC, concurring. 
 Appeal dismissed. 
 
 4 Rich. Eq. 260 
 
 JAMES ROSE and H. A. DeSAUSSURE, 
 
 Ex'ors. of Philip Tidyman, v. ALFRED R. 
 
 DRAYTON and SUSAN TIDYMAN. 
 
 (Charleston. Jan. Term, 1852.) 
 
 [Wills <®=3l99.] 
 
 A codicil annexed to a will is a republication 
 thereof :— lands purchased after the date of the 
 will and prior to the execution of the codicil, 
 held to pass under the residuary clause of the 
 will. 
 
 [Ed. Note. — Cited in Diayton v. Rose, 7 Rich. 
 Eq. 333, 114 Am. Dec. 731. 
 
 i'or other cases, see Wills, Cent. Dig. § 498; 
 Dec. Dig. <©=>199.] 
 
 [This case is also cited in Drayton v. Rose, 7 
 Rich. Eq. 332, 64 Am. Dec. 731, as to facts.] 
 
 Before Dunkin, Ch., at Charleston, June, 
 1851. 
 
 Doctor Philip Tidyman, of Charleston, died 
 June 11, 1850, leaving of force his last will 
 and testament, bearing date March 20, 1843. 
 He left as his heir at law his daughter, 
 Susan Tidyman. His will contained sundry 
 devises and bequests and the following resid- 
 uary clause: 
 
 "Item. I give and devise all the rest and 
 residue of my estate, of every kind and na- 
 ture whatsoever, unto my nephew, Alfred 
 Drayton." 
 
 *261 
 
 *About September 6, 1848. Dr. Tidyman 
 purchased a farm in Greenville, containing 
 sixty-eight acres; and about March 7, 1850, 
 entered into a written contract to sell to the 
 Greenville and Columbia Rail Road Company 
 about three acres, part of said farm: but, 
 at the time of his deatli, the purchase money 
 had not been paid, nor had title been ex- 
 ecuted. 
 
 On March 12, 1850, the testator made and 
 executed a codicil, which lie annexed to his 
 will, in the following words: 
 
 "I declare the following to be a codicil to 
 my will: 
 
 "AVliereas, in my foregoing will, T gave 
 and bequeathed to my cousin, James Rose 
 and his wife, Mrs. Julia Rose, or the sur- 
 vivor of them, certain house servants after 
 the death of my daughter, and among them, 
 one named Judy ; since the date of my will 
 the said Judy has had a child. I now, there- 
 fore, give and bequeath the present and 
 future issue and increase of my said servant 
 Judy to the said James Rose and his wife, 
 Mrs. Julia Rose, or the survivor of them, 
 in tlie same manner as I have heretofore 
 given .Judy to them." 
 
 One object of the bill was to ascertain 
 whether the farm in Greenville descended, 
 as intestate property, to the testator's daugh- 
 ter, or whether it passed under the residuary 
 clause of the will ; and for instructions as 
 to who should make titles to the Rail Road 
 Company for the part of the farm agreed to 
 be sold them, &c. 
 
 Dunkin, Ch. The pleadings present the 
 facts of the case and the points submitted for 
 the adjudication of the Court. Whereupon 
 it is declared that the testator's will was 
 re-published by the codicil annexed, and ex- 
 ecuted on the twelfth da.v of March, one 
 thousand eight hundred and fifty, ((M and that 
 the legal estate in the premises contracted to 
 be sold to the Rail Road Company, vested In 
 the defendant, Alfred R. Drayton, and that he 
 is a trustee, as to the premises so contracted 
 to be sold, for the purchaser, and bound to 
 execute a conveyance when required by the 
 
 *262 
 *purchaser. And that the executors are en- 
 titled to receive the purchase monej', and 
 are bound to account for the same to the 
 said Alfred R. Drayton as part of the rest 
 and residue of the testator's personal estate 
 bequeatned to him. 
 
 The complainants appealed on the ground: 
 — that the testator's will was not re-published 
 by the codicil annexed to it; that the legal 
 estate in the premises contracted to be sold 
 to the Rail Road Company, did not vest in the 
 defendant, Alfred R. Drayton ; that the tes- 
 tator died intestate as to the farm in Green- 
 ville, and that the same vested in his daugh- 
 ter and heir at law, Susan Tidyman. 
 
 DeSanssure, for appellants. 
 Petigru, T. Y. Simons, jun., for Alfred R. 
 Drayton. 
 
 Memminger, for Susan Tidyman. 
 
 PER CURIAM. We concur in the decree 
 of the Chancellor: and it is ordered, that it 
 be affirmed, and the appeal dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN and 
 WAliDL.xW, CC, concurring. 
 Appeal dismissed. 
 
 (a) 1 Rolle Abr. p. (517. Z. No. 8: Richardson 
 V. Richardson, Dud. Eq. 184. 
 
 106 
 
 <g;:=>For other cases see same topic and KKV-NUMBEii. iu all Key-Numbered Digests and Indexes
 
 LOWRY V 0I5KYAX 
 
 «2G4 
 
 4 Rich. Eq. 262 
 
 MAKY A. 1{. LOWKY. Adiiix. of Win. Brown, 
 
 Deceased, v. LEWIS criillYAN et al. 
 
 (Cbarleston. Jan. Term. 18."»2.) 
 
 I iri7/.y C=r.4S.] 
 
 ]'fi|insr to te.stator's four sons "to tliem 
 iiiid tlitir licirs forever; if eitlier of my sons 
 .should di<' uitliout issur. his part sliall he equal- 
 ly divided hetwern tiic survivnrs:" (I. was tiie 
 last surviviiij; sou and lie dii-d without issue— 
 W.. another son. luivin;; died hefore him. leavinji 
 issue: //«•/(/. tliat G.'s estate was a vrstfd ft'<', 
 defeasihle in tlie event that he died without is- 
 sue, leaving; one or more of his iirothers sur- 
 viving; him, and. therefore, in tlu' evt-nts wlui-ii 
 liad happeiied. W. had no intrnst. under tlie 
 will, in (J.'s share, which his achninistratrix 
 eould claim. 
 
 |Kd. Note.— Cited in M.-ndinhail v. Mower, 
 16 S. C. 314: MetJee v. Hall. liC S. <'. IS."!, 
 
 I S. E. 711: Gordon v. (iordon, '.VJ. S. V. "jNU, 
 
 II S. E. .•'.;54. 
 
 For other cases, see Wills. Cent. I >i;r. § 1183; 
 Dec. Dijr. <£=3548.] 
 
 ITliis case is also cited in CJ(udon v. Gordon. 
 3li S. C. 581, 11 S. E. .■W4, without specific 
 application.] 
 
 Before Dunkiu, Cli.. ut Ccdlctoii, February. 
 1851. 
 
 Duiikiii, Ch. Robert lirown. the father 
 t)f cuiuplainiint's intestate, died in 1805. His 
 will has the followiii.:: residuary clause, 
 
 *263 
 ♦viz; "Item — I jiive and bcHiueath unto luy 
 loving sons, William Brown. Georj^e Brown. 
 Robert Brown, and Charles Brown, all the 
 remainder part of my estate, to be equally 
 divided between them, share and share alike, 
 to them and their heirs forever ; and I 
 also will and desire that, if either of my 
 sons should die without issue, his part shall 
 be equally divided between tiie survivors." 
 The estate was ecinally divided between the 
 four sons. In 1811. (ieorjie died without 
 issue, and his share was e(|ually divided be- 
 tween the survivinj; brothers. So in 18i;^. 
 Robert died without issue, and his share was 
 equally divided between the survivinj,' broth- 
 ers, William and Charles. In 1815, William, 
 the former husband of the complainant, died, 
 leaving two cliildren. who also died in in- 
 fancy. Charles Brown, the fourth son of 
 the testator, survived until 1848, and then 
 died without issue, having betiueathed his 
 estate to the children of the <lefendant. Lewis 
 D'Bryan, jun., whom he appointed executor 
 of his will. As the adudnistratrix of Wm. 
 Brown, deceased, the conqdainant can have 
 no right which did not belong to her intes- 
 tate. His interest in the share allotted to 
 his brother Charles, depeiuled on two contin- 
 gencies, to wit: That lie should die without 
 issue, and that he, William, should survive 
 liim. But William was in his grave more 
 than thirty years before the death of Charli's, 
 and conse(iueiitly could take nothing in the 
 character of survivor. This is an end of 
 conq)lainant's claim. But as the testator, 
 Robert F.rown. manifestly intended to part 
 
 with his wlude estate; and as Charles was 
 the last survivor, so that uo i»ne could vako 
 on the happening of the contingency, the 
 Court is of opinion that his inten'st. under his 
 father's will, became abstdute. and ndght well 
 pass under the betpiest to the defendants. 
 It is ordered ami decreed that the bill be 
 dismissed. 
 
 The conqdainant ajipealed. on the grounds: 
 
 L Because she subndts. that on the death 
 
 of William I'.rown leaving issue, his interest 
 
 in the share of Charles Bmwn became trans- 
 
 ndssible to his representatives. 
 
 :.'. Because, though she might not be able to 
 
 ♦264 
 
 r<ustain her bill in *tbe character of adminis- 
 tratrix solely, yet. as she alleges herself in 
 her bill to lie the s<d" surviving distributee of 
 William Brown, and she is adnntted to be 
 so, her bill for the cause first stated in the 
 decree ought not to be dismissed. 
 
 .3. Because the decree is otlierwise con- 
 trary t<i law and eMjuity. 
 
 Itbett. Tracy, for appellant. 
 Henderson, ((intra. 
 
 The opinion of the Court was delivered by 
 
 DCNKIX. Cli. By the will of Robert 
 Brown, it is (juite clear that each of his four 
 sons took, not merely a life interest, but an 
 ab.solute estate in the personalty be(iueathed 
 to them. It is to be etpially divided between 
 them, "share and share alike, to them and 
 their heirs forever."' But this absolute estate 
 was defeasible on a contingency, "if either of 
 my sons should die without issue, his part 
 shall be equally divided between the surviv- 
 ors." Charles Brown, defemlant's testator, 
 was the last surviving child of his father. 
 Ridiert Brown. The conqdainants intestate 
 had been dead thirty years before his broth- 
 er Charles died. Conqilainanfs intestate 
 left issue, ami his absolute interest in the 
 share be(iueathed to him was. therefore, inde- 
 feasible. But it is insisted, on the part of the 
 appellant, that her intestate had an intere.st 
 in Charles's share, which was transmissible 
 to his representatives, and that, on the death 
 of Charles without issue, she, as administra- 
 trix of Wm. Brown, deceased, became entitled 
 to the estate, although her intestate died be- 
 fore his brother. 
 
 If the jxtsition assumed by the complainant 
 be correct, it is obviously fatal to her claim. 
 The gift to the first taker is in tlu> most 
 anqile terms, "to him and his heirs forever, 
 but if he should die without issue, his part 
 shall be e(iually divided between the surviv- 
 ors." The oidy ground tq>on which this limi- 
 tation over can be sustained, as demonstrated 
 in Mas.sey v. Hudson, 2 Mer. 13(1. and I'ostell 
 V. I'ostell. 1 Bail. E(i. 3!X), is that "it was 
 inteiuled that the survivor was meant in- 
 dividually and personally to enjoy the legacy. 
 
 ®=3li"or other cases see same topic and KE VO.UMUER In all Uey-Numbered Digests and ludexcd 
 
 107
 
 *264 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 and uot merely to take a vested interest. 
 
 *265 
 which might, *or might not, be acconipanied 
 by actual possession'" — otherwise, although 
 there should be no such failure of issue as 
 would enable him personally to take, yet his 
 representatives would be entitled to claim in 
 his right whenever the failure of issue should 
 happen, which might be fifty years after the 
 death of the first taker. "Unless the term 
 survivor has the efi'ect of limiting the general- 
 ity of the expression, dying without issue ;" 
 in other words, if it is not a personal, but a 
 transmissible, interest wliich is intended, 
 there is no ground to support the limitation 
 over, and the interest of the legatee would 
 be absolute and indefeasible. It may be fur- 
 ther remarked, that, if the limitation over 
 were not too remote, but might take effect on 
 the failure of issue at any time, there would 
 be more legitimate ground for argument that 
 the defendant, representing the last surviving 
 Itrother, was entitled to the share of William 
 Brown, the complainant's intestate, than that 
 the complainant would take Charles's share. 
 For although w illiam died leaving issue, yet 
 the issue became extinct in the life time of 
 Charles, who was then the last survivor. 
 But upon the principle and the autliorities 
 before stated, William having left issue at the 
 time of his death, his estate was indefeasible, 
 although the issue might afterwards fail. It 
 is an entire misapprehension to suppose that 
 the vesting of the estate depended upon the 
 legatee having or leaving issue. It vested 
 immediately on the death of Robert Brown, 
 the original testator, and was defeasible only 
 upon the happening of a t-ontingency. If 
 that event occurred, it was limited over to 
 certain persons. None are entitled but those 
 who can bring themselves within the descrip- 
 tion at the happening of the contingency. 
 Neither the complainant, nor any one else, an- 
 swered the description at the death of Charles 
 Brown, who was the last surviving brother. 
 Under these circumstances, it was held by the 
 Chancellor, that, as it was the manifest in- 
 tention of the testator to part with his whole 
 estate, and as at the death of Charles Brown 
 there was no one capable of taking under the 
 description of survivor, his estate was ab- 
 solute, and such conclusion has the sanction 
 of Powell V. Brown, 1 Bail. 100, and the au- 
 *266 
 
 *thorities there cited. But this is an luiim- 
 portant inquiry. If the result were otherwise, 
 and it became a case of intestacy, none could 
 claim but the legal rei>resentative of the orig- 
 inal testator, and that character is not sus- 
 tained by the complainant. 
 The appeal is dismissed. 
 
 JOHNfeTON, DARGAN and WARDLAW, 
 CC, concurred. 
 Appeal dismissed. 
 
 4 Rich. Eq. 266 
 
 A. R. and SARAH CHISOLM v. .TAXE M. 
 
 CHISOLM and Otheis. 
 
 (Charleston. Jan. Term, 1S.j2.) 
 
 [Infants (©=:3o'!.] 
 
 Iiifiint having; an absolute estate of about 
 .^^16,000. and also an estate of al)out twiee that 
 amount contingent upon his attaining the aue 
 of twenty-one, or marryiut;: ordered that main- 
 tenance be allowed him out of Ins absolute es- 
 tate. 
 
 [Ed. Note. — For other cases, see Infants, Cent. 
 Dig. §§ 04-66; Dec. Dig. (©=»:33.] 
 
 [Infants (S=^3.3.] 
 
 Allowance made for maintenance is subject 
 to the futnie control of the Court, and may be 
 altered with the varying circumstances of the 
 estate. 
 
 I Ed. Note. — For other cases, see Infants, 
 Cent. Dig. § 65; Dec. Dig. <©=:>33.] 
 
 Before Wardlaw, Ch., at Charleston, Feb- 
 ruary, 1S51. 
 
 Wardlaw, Ch. Alexander Robert Chisolm, 
 by his will, dated May 29, 1827, devised a 
 plantation and negroes to his son, Alexander 
 R. Chisolm, for life, and, upon his death, 
 should he die leaving is.sue at the time of his 
 death, to such issue as should attain the age 
 of twenty-one years, or at the day of mar- 
 riage, e(iually and absolutely, with survivor- 
 ship among them ; and should his son die 
 leaving issue, as aforesaid, and also a widow, 
 then that the widow, during widowhood, 
 should receive a reasonable support out of 
 said estate, and he appointed his executors 
 trustees for the children and widow of his 
 said son, for the purpose of carrying this and 
 other provisions of his will in the nature 
 of trusts into full and entire effect ; but should 
 his said son die leaving no issue at the 
 time of his death, or leaving issue, they 
 should become extinct before attaining the 
 age of twenty-one years, or before marriage, 
 and also leaving a widow, then that the prop- 
 erty given to his said, son should revert 
 
 *267 
 back, and become the property of *his other 
 sons, who should l)e living at the death of his 
 said son, subject to the same conditions and 
 restrictions imposed on the said property in 
 the devise and betiuest of the same to his 
 said son, the said surviving sons paying to 
 tlie widow of their deceased brother !f.j,000 
 in full discharge of her claims upon the es- 
 tate. The said testator, by his said will, gave 
 certain lands and negroes to each of his 
 other three sons, John M., Edward N. and 
 Robert, lor life, subject to all the provisions 
 and conditions imposed on the property given 
 to their brother, Alexander R., and also gave 
 to each of his four sons one-fourth of the 
 residue of his estate in fee. Of the said will, 
 George Chisolm, Thomas Smith, Alexander 
 R. Chisolm, and John M. Chisolm, were ap- 
 pointed executors. The testator died June, 
 1827, leaving hia said four sons surviving 
 him. Of the executors. Thomas Smith died, 
 without having ever qualified: George Chis- 
 
 108 
 
 ©=»For other cases see same topic and KEY-M UMBER in all Key-NumDered Digests aud Inde.ves
 
 CHISOI.M V. CIIISOLM 
 
 *2C9 
 
 olm qualified, and sodii afterwards dit-d ; 
 the otlier two qiialiticil niid administrn'd the 
 estate l»y jiayini; tlie d»'l>ts and deliv«M-liin the 
 legacies. Soon afterwards tlie son, Alex- 
 ander I{.. died without havin;; Iteen married, 
 whereli.v his interests devolved upon his siir- 
 vivin;; hrotliers. 
 
 Kdward N. Chisolin an.l Mar.v E. Hazard 
 oontra<te<l marriage in is:;i, an<l In contem- 
 plation thereof eonv»>yed nine negroes to 
 Thomas K. Screven, in trust, for the use of 
 both durintr their joint lives, then f<u" the 
 use of the survivor for lif<'. and upon the 
 death of the survivor for tin* issue «)f the 
 umrria;.'e in fee. IMward N. Chisolm died 
 September 1. 1S.'',J!. leaviii},' the said Mary 
 K., his widow, and the plaintitTs. .\. K. and 
 Sarah, his children, and leaviu'^ of foi*ce 
 his will, dated Aniiust 19. is.''.(i, when'by he 
 di'vised his wlude estate, real and personal, 
 t(» his widow, and whereof the said Thomas 
 K. Screven was the actinj; »>xeiutor. 
 
 John M. Chisolm, surviving executor of 
 Alexander Robert Chisolm's will and trus- 
 tee of the estates devised, applied by peti- 
 tion to this Tourt for instruction as to the 
 extent of the provision which should be made 
 for the reasonable supiiort of the said Mary 
 E. out of the estate j:iven in trust; and at 
 April sittin;rs, IS'JS, for lieaufort district, 
 it was ordered that the said John M. Chis- 
 
 ♦268 
 olm, *executor, pay to the said Mary E. 
 Chisolm, out of the trust jiroperty of her 
 deceased husband, Edward N. Chisolm, 
 the annual sum of two thousand dollars dur- 
 ing her widowhood, for her personal use. and 
 five hundred dollars annually for the mainte- 
 nance of her two children, until the further 
 order of the Court. 
 
 Mary K. Chisolm died in .November, l.S.*{.S, 
 intestate, leaving the plaintitTs the distribu- 
 tees of her e; tate. the administration of 
 which was conuuitted to tlu' said Thomas 
 10. Screven. 
 
 The separate estates of Edward X. Chis- 
 olm and Mary 10. Chisolm and the estate 
 endiraced in their marriage scttU'ment, have 
 all been sold by the orders of the Court, and 
 they are now in the hands t»f the said Thom- 
 as E. Screven, in the form of bonds bearing 
 interest, to the aggregate value, as stated in 
 ids answer, of .^.'vJ.Wl.liU, to which the plain- 
 tiffs are absolutely entitli-d. Tlu' estate to 
 which the plaintitTs will be entitled, under 
 the will of their grand-father, Alexander 
 Robert Chisolm, upon their marriage or at- 
 tainment of full age, is estimated to be worth 
 about twice as nuich more. So that the es- 
 tate of each plaintitT, vested and cttnting»>nt, 
 is worth abcuit .$r)().0(>(>. 
 
 John M. Chisolm was apiinjuied guardian 
 of the i)ersons of the plaintilTs. at January 
 sittings, isa!>, of this Ccairt, for l?eaufort 
 district; he was also provisionally appoint- 
 ed guardian of their estates, l>ut did not com- 
 ply with the condition of the order in this 
 
 respect. The plaintiffs, after the death of 
 their motlier, went to reside in the faunly 
 of their maternal aunt, the wife of Horace 
 Wablo. their next friend in this s-iit. in the 
 city of New York ; and they ct>ntin\ie to re- 
 side there. The sum allowed, or assumed to 
 be allowed, by the order t>f April. 1S"5S, for 
 the maintenance of the plaintiffs, has been 
 found inadequate, and the said Horace Wal- 
 do is in advance for their support. The 
 plaintiff, A. R., is now in ids seventeenth 
 year of age, and the idaintiff, Sarah, in her 
 fift«'enth year. 
 
 John M. Chisolm dle<l intestate, July .">. 
 1S4!». leaving a widow, Jane M., who has 
 adndnistered upon his estate, and five chil- 
 
 •269 
 dreii, *who are infants, namely. John M., Al- 
 fred. Jane, Susan and Laurens. 
 
 The trust estate of Edward X. Chisolm. 
 while under the management of the said 
 John M. Chisolm, yielded little income, in- 
 .somuch that he was in advance to the saiil 
 trust estate at the time of his death. 
 
 Robert Chi.solm, onl.v surviving son of 
 Alexander Robert Chisolm, was aitpointed 
 by this Court, sitting in Charleston, l-Vbru- 
 ary. 1850, manager of the trust estate of 
 ICdward N. Chisolm, and in June, 1S,~)0, 
 trustee of said estate. 
 
 This bill is tiled Ity the two infant chil- 
 dren of Edward X. Chisolm against Thom- 
 as E. Screven. Robert Chisolm, Jane M. 
 Chisolm, and the children of John M. Chis- 
 olm ; it prays that the advances made by 
 John M. Chisolm and Horace Wablo may be 
 reimbursed, and that additional sums may 
 be allowed to tlie plaintitTs for their mainte- 
 nance, past and future. The master reports 
 that tne debt of the trust estate of lOdwart' 
 X. Chisolm to the estate of John M. Chis 
 olm amounts to $2,007.00. That there ar/ 
 to the credit of the trust estate, in the hau< s 
 of James H. Eadson cV Co., factors. ••<:'., 101'.; 8, 
 and in the hands of Robert Chisolm. as 
 manager ami trustee. .1!1.02ti.."i7 ; and .be 
 master recommends the increase of maiJte- 
 nance to the plaintiffs ln'reinafter ord« red. 
 All the parties seem agreed that the aaiu 
 imrposes of the bill .shoubl be effected; and 
 the only question seriously litigate'/, is, 
 whether the allowance for the maiiiti nance 
 of the plaintitTs should be defrayed JUt of 
 the estate to which they are absohite'y enti- 
 tled, or out of the trust estate, whi.-h will 
 belong to them if they marry or reach ma- 
 turity. If the latter were the oily fund 
 from which the maintenance could be pro- 
 vided, the decision might be endii.rra.ssing, 
 but in the actual state of the facts he course 
 of judgment is plain. 
 
 A legacy, payable at a futuri' d;»..'. does not 
 bear interest before default in tie payment, 
 lude.ss the intention of the tt'sti.tor to give 
 interest, as an incident to the legacy can be 
 inferred from the whole will, or uidess it be 
 a legacy from a father to an ajfant child, 
 
 101)
 
 *a89 
 
 4 RICIIARD>>()NS EQUITY RErORTS 
 
 who has no other provision, and to whom the | 
 *270 I 
 
 father *has given nothing in the will for 
 maintenance. In such case of father and 
 child, interest from the death of the testator 
 is given for the maintenance of the cliild. in 
 the absence of express direction on the sub- 
 ject, or even against direction for the ac- 
 cumulation of interest until the day when 
 the legacy is payable, and whether the leg- 
 acy be vested or contingent. Allen v. Cros- 
 land, 2 Rich. Eq. 68. This doctrine is found- 
 ed on the principle, that as the father is un- 
 der a legal obligation to provide for the 
 maintenance of his infant child, the Court 
 will not presume him to be inotticious and 
 unnatural, but will infer that by such leg- 
 acy he intends, in fulfillment of his duty, 
 to afford to his child the means of support. 
 Heath v. Perry, 3 Atk., 101. The same rule 
 of construction might be applied to the case 
 of a grandfather's legacy, if by the death of 
 the father and the destitution of the grand- 
 children, he should be bound to provide for 
 their maintenance, or to the case of any tes- 
 tator, who, by the terms of his will, puts 
 himself in loco parentis towards the objects 
 of his bounty. But, in the absence of such 
 circumstance, the rule does not extend to 
 adult children. Lowndes v. Lowndes, 15 
 Yes. 301; Raven v. Waite, 1 Swan. 553; 
 nor to a natural child, lb.; nor to a wife; 
 Stent V. Robinson, 12 Yes. 461 ; nor to neph- 
 ews ; Crickett v. Dolby, 3 Yes. 10; nor to 
 grand-children; Houghton v. Harrison, 2 Atk. 
 329; Butler v. Freeman, 3 Atk. 58; Palmer 
 V. Mason, 1 Atk. 505; Descrambes v. Tom- 
 kins, 1 Cox, 2.33; Ellis v. Ellis, 1 Sch. and 
 Let 5; Lupton v. Lupton, 2 John. Ch. 628; 
 nor even to infant children, if the father has 
 provided in his will any other maintenance, 
 however small, and however large nuiy be 
 the ultimate legacy. Ellis v. Ellis. Mainte- 
 nance out of the interest of a legacy, pay- 
 able at a future day, by a testator, not in 
 loco parentis, to a class of children not oth- 
 erwise provided for, if there was equality in 
 the portion of the children, and in their 
 chance of taking by survivorship the whole, 
 has been sometimes ordered by a Court of 
 Equity, where the Court could have before 
 it all the persons entitled to the fund, so 
 as to make to each a compensation in imme- 
 
 *271 
 diate maintenance for *the diminution of the 
 fund to which he may be ultimately enti- 
 tled; but this relief cannot be afforded if 
 there be a gift over, or any other interest, 
 that upon any other contingency would take 
 effect, at least, without the consent of the 
 remainder-men. 
 
 This would be in effect giving the prop- 
 erty of one person for the maintenance of 
 another. In ex parte Kebble, 11 Yes. 604, 
 Lord Eldon refused maintenance, where the 
 estate was beciueathed to infants, with sur- 
 vivorship among them in case of the death 
 
 110 
 
 of any of them under twenty-one ; but there 
 was a limitation over to others in case of the 
 death of all the infants under twenty-one. 
 In Marshall v. Holloway, 2 Swan. 436. the 
 same eminent Judge, discussing this doctrine 
 of maintenance on the principle of compensa- 
 tion, says: "if the will contains successive 
 limitations under which persons not in being 
 may become entitled, it is not sufficient that 
 all the parties then living presumittively en- 
 titled are before the Court, for none of the 
 living may be the parties eventually entitled 
 to the enjoyments of the property." Again, in 
 Errat v. Barlow, 14 Yes. 202, where the prop- 
 erty was given to children at twenty-one, 
 and limited to others if the children should 
 die under twenty-one, Lord Eldun ><ays: "the 
 result is that if the chance of surviving is 
 equal among all, and no other interest, that 
 upon any contingency would take effect, will 
 be defeated, maintenance shall be allowed 
 out of the interest; but it is impossible to 
 give it where in any event under the opera- 
 tion and construction of the will that inter- 
 est may possibly belong to others." In Lo- 
 max V. Lomax, 11 Yes. 48, maintenance out 
 of the interest of a legacy to the children of 
 tejstator's living daughter was refused be- 
 cause an unborn child might eventually take 
 the whole. In Errington v. Chapman, 12 
 Yes. 20, legacies were given to two grand- 
 children at twenty-one, with interest from 
 the end of a year after testator's death, and 
 with survivorship amongst them, but because 
 there was a gift over, in case both died under 
 twenty-one without issue. Sir Wm. (Jrant re- 
 fused maintenance, although the father was 
 not of ability to maintain the infants. Y. C. 
 Shadwell. in Turner v. Turner, 4 Sim. 430, 6 
 
 *272 
 E. C. C. R. 108, *pui->>ued the same course, 
 because the children of such of the grand- 
 children as might die under twenty-one had a 
 contingent interest. The decisions are not 
 altogether uniform as to the necessity of 
 calling before the Court all the persons who 
 may be beneticially interested in such lega- 
 cies, but the great weight of authority is 
 against the allowance of maintenance, where 
 this cannot be done. 
 
 In the case before us, we cannot regard 
 the testator, Alexander Robert Chisolm, as 
 putting himself in loco parentis towards 
 grand-children who might never come into 
 existence, especially when he made ample 
 provision, by absolute bequests, for their liv- 
 ing father. The only direction of the will 
 from which the parental anxiety of the tes- 
 tator towards grand-children is inferred, 
 is the appointment of trustees for them; but 
 that arrangement was adopted only to pre- 
 serve the contingent remainders, in case the 
 father died during the infancy of their chil- 
 dren. One cannot be under parental obli- 
 gation to posterity which is possible only, 
 and not actual. 
 
 Jt seems equally impracticable here to
 
 CITTSOI.M V. CIILSOLM 
 
 frive mnlntpnanre to the plaintiffs out of the 
 trust estate, on the principle of compensa- 
 tion. The plaintiffs have other estates from 
 •which they may he maintained. The chil- 
 dren of John M. Chisolm are Infants, and 
 ii'.capalile of l.arterinfi away their contingent 
 interest in the fund. I'nborn children of 
 Rol>ert Chisolm. who caimot be called Ix'fore 
 the Court, may be eventually entitled to the 
 whole estate; and the Court cannot give 
 away their jiroperty to othi-rs. 
 
 In opposition to this conclusion, it is urged 
 tliat the point was adjudged ity tlie order 
 of April. 18.'{S. But that order provided only 
 for the reasonaide support of the mother of 
 tlie plaintiffs during her widowhood, in con- 
 formity to the will; and the fact that she 
 had two children was properly taken into 
 consideration in fixing the amount of lier al- 
 lowance. I am not disposed to scan curious- 
 ly the provisions of that order, .s.o far as it 
 may have been acted upon by the parties: 
 but it would be dithcult to maintain that it 
 had any legal operation after the death of 
 Mary E. Chisolm. At all events, when that 
 
 ♦273 
 order was made, the plaintiffs were not ♦en- 
 titled to the enjoyment of any estate what- 
 soever; and it is pushing the argument ad 
 vericundiani extremely, to urge me to en- 
 large and apply an order of my predecessors 
 under a very different state of facts. 
 
 It is ordered and decreed, that the report 
 of Master Gray lie confirmed, and that the 
 di>fendant, Jane M. Chisolm. administra- 
 trix of John M. Chisolm. be paid the sum of 
 .yj.OOT.til), with interest from June 1!). 1S4.S. 
 fur the advances of her intestate to tlie trust 
 estate of E. N. Chisolm. out of the balance 
 in the hands of the factors. James II. Lad- 
 son & Co. 
 
 It is further ordered and decreed, that the 
 advances of Horace Waldo t(» the plaintiffs 
 lie rejiaid to him. so far as they may be cov- 
 ered by an additional allowance of $r)00 a 
 year hereby made for the maintenance of 
 plaintiffs, from the death of John M. Chisolm 
 to the lirst of January last, out of the i-state 
 of the plaintiff's in the hands of tlu- defend- 
 ant, Thomas E. Screven. 
 
 It is further ordered and decree<l. that for 
 this year commencing tirst of January last, 
 and hereafter, so long as the plaintiffs n-side 
 witli II. Wahlo. their next friend, and until 
 otherwi.se ordered, the said II. Wahlo do re- 
 «-eive for tlie maintenance of plaintiffs, at 
 the rate of one tliousand dollars a year for 
 each of them, payable semi-ainnially in ad- 
 vance, the allowante for the lirst half of this 
 year immediately after this di'cree, and sub- 
 sequent allowances in July and January, 
 out of till' estate of plaintiffs in the hands of 
 Thomas E. Screven, defi-ndant. who is here- 
 by (U-dered to pay the same. 
 
 It is further ordered and decreed, that the 
 defeudant, Uobert ( hisolm. proceed to invest, 
 icouformably to the standing order of the 
 
 Court of Appeals, any balances In his hands, 
 or in the bands of James IL Ladson & Co.. bi^ 
 longing to the trust estate of E. N. Chisolm, 
 or which may hereafter accrue, to await the 
 further order of this Court. 
 
 As there is no proof in the cause that 
 guardians have been appointed for the per- 
 sons or estates of the plaintiffs since the 
 death of John M. Chisolm, the cause is re- 
 
 •274 
 taiiKMl with leave to any of the *parties, 
 upon proper notice to the s(dicitors of the 
 otlier parties, to move for a reference on that 
 suliject. or to take such other proceedings in 
 the matter as they may advise. 
 
 The costs and expensi's of the plaintiffs, as 
 1 between solicitor and client, and the costs of 
 all tile defendants, except Thomas E. Screv- 
 en, to be paid out of any funds in tlie hands 
 of Robert Chisolm. as manager or trustee. 
 The costs of the defendant, Thomas E. Screv- 
 en, to lie paid out of the estates of the plain- 
 tiffs in his hands. 
 
 The defendant, Thomas E. Screven, ap- 
 pealed, on the grounds: 
 
 1. Because his Honor decreed, tliat an al- 
 lowance of "one thou.sand dollars for each, 
 payable semi-annually, in advance, for the 
 maintenance in future of the plaintiffs, A. 
 K. and Sarah Chisolm. during their minority, 
 should be paid out of the estate in his hands." 
 Whereas, it is respectfully submitted, tliat 
 the estate in his hands is the estate of their 
 deceased, mother, Mary E. Chisolm, safely 
 and securely invested in bonds, bearing inter- 
 est, payable annually, not semi-annually: and 
 it is impracticable and ineiiuitable to colM't 
 and re-invest the corpus of said estate to 
 provide for the exigency of the decree in this 
 respect, and to require the payment of in- 
 terest, semi-annually, contrary to the usage 
 of the country, which would occasion fre- 
 quent and serious losses to the said estate, 
 by detention of its funds from time to time, 
 to secure suitable investments, and the punc- 
 tual payment of the allowance ordered. 
 
 li. Because the last will and testament of 
 the grandfather of the said plaintiffs, Alex- 
 ander R. Chisolm. deceased, charges the es- 
 tate, consisting of lands on Coosaw Island : 
 and the negro slaves, after the decease of the 
 life-tenant, his son, Edward Neufville Chis- 
 olm. deceased, with the maintenance and i>du- 
 cation of the said plaintitTs. the remainder- 
 men, during their minority, which provision 
 of the said testator, this honorable Court has 
 hitherto adoi»ted as its guide, and this de- 
 fendant resjiectfully submits that no sulH- 
 cient cause is assigned why the said entailed 
 estate should not continue the sum decreed 
 for the maintenance annually of the said 
 plaintitTs. as heretofore diarged. 
 ♦275 
 ♦:;. l?ecause the defendant, Thomas E. 
 Screven, has no funds in his hands to pay 
 the balances decreed to be due and owing to 
 the said Horace Waldo, unless he is permit- 
 Ill
 
 *275 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 ted to encroach upon the corpus of the estate, 
 already invested; whereas it is submitted, 
 that such encroachment is contrary to the 
 practice and policy of the Court. 
 
 4. Because the smaller estate in the hands 
 of defendant is charged with the payment of 
 a sum annually, which, under the most fa- 
 vorable circumstances, it could not fully pay; 
 whereas the larger and more profitable es- 
 tate is not charged at all, and its proceeds 
 suffered to accunmlate in the hands of Rob- 
 ert Chisolm, without giving security for said 
 estate or its proceeds. 
 
 5. Because this defendant received no no- 
 tice of any reference before the master in 
 Charleston, at which he would have been rep- 
 resented; therefore the decree of his Honor 
 occasions surprise and injustice to this de- 
 fendant. 
 
 Screven, Martin, for appellant. 
 Memminger, Petigru, contra. 
 
 PER CURIAM. We concur in the decree. 
 It is a mistake to suppose that the allowance 
 made for maintenance is permanent or unal- 
 terable. Upon a proper showing, in a proper 
 proceeding, it may be altered with the vary- 
 ing circumstances of the estate. It is sub- 
 ject therefore to the future control of the 
 Court. It is ordered that the decree be af- 
 firmed, and the appeal dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN and 
 VVARDLAW, CC, concurring. 
 Appeal dismissed. 
 
 4 Rich. Eq. *276 
 
 *W. II. RIVERS, Admr. W. M. Ediiigs, v. 
 JOHN A. FRIPP et al. 
 
 (Charleston. Jan. Term, 1852.) 
 
 [Wills (©=:5634.] 
 
 Devise of property, real and personal, to 
 testator's wife, for life, and after her death to 
 his son, for life ; "and from and immediately 
 after the death of my wife and son. unto the 
 issue of my said son living at the time of hi-; 
 death, who shall live to attain the full age of 
 twenty-one years, or who, dying before that 
 time, shall leave issue to live until the time at 
 which the parent or parents, if alive, would have 
 reached the full age of twenty-one years ;" and, 
 in default of such issue, then, over, — held, to 
 give a vested, but defeasible, interest, with im- 
 mediate right to the rents and profits, to a child 
 of the son who survived l)oth the wife and son, 
 although such child died under twenty-one 
 years of age, leaving no issue which lived until 
 "the time at which the parent, if alive, would 
 have been twenty-one years of age. 
 
 [Ed. Note.— Cited in Seabrook v. Gregg, 2 S. 
 C 77 ; Leroy v. Citv Council of Charleston, 
 20 S. C. 75, 77; Boykin v. Boykin, 21 S. C. 
 530; Charleston & W. C. Ry. Co. v. Reynolds, 
 09 S. C. 503, 48 S. E. 476; Walker v. Alver- 
 son, 87 S. C. 61, 62, 68 S. E. 966, 30 L. R. A. 
 (N. S.) 115. 
 
 For other cases, see Wills, Cent. Dig. § 1503 ; 
 Dec. Dig. <®=:=634.] 
 
 Before Dunkin, Ch., at Charleston. June, 
 18.51. 
 
 Dunkin. Ch. The questions presented by 
 the pleadings arise on the will of William 
 Edings, deceased, and the codicil thereto. 
 The former bears date 23d May, 1834, and 
 the latter on the 27th March, 1836, and both 
 were admitted to probate on the 11th April 
 following. An extract of so much as is nec- 
 essary is annexed to this decree. 
 
 It appears that, at the time of the execu- 
 tion of these instruments, and at the decease 
 of the testator, he had one son, John Evans 
 Edings, who was himself married and had 
 two sons, to wit: William M. Edings and 
 John Evans Edings. jr., one of the defend- 
 ants. The testator left also, besides his wid- 
 ow, Sarah P^dings, two daughters, Sarah 
 Cliis<dm and Mary Fripp, and the children of 
 a deceased daughter Eliza Whaley. 
 
 By the ])rincipal clause of the will, which 
 it is important to consider, the plantation on 
 Edisto Island therein described, and the 
 slaves attached thereto, are devised and be- 
 queathed to his wife during her natural life, 
 and. subject to her life estate, the same prop- 
 erty is devised and bequeathed to his son, 
 John Evans Edings, during his natural life ; 
 but it is specially provided that, in the event 
 of the bankruptcy of his son. or of any act 
 on his part that would deprive him of the 
 
 *277 
 use, annual profits or income *arising from 
 said property, then, and in any such case, 
 the devise and bequest to his son are abso- 
 lutely revoked and annulled, and the testa- 
 tor devises and beiiueaths the said property, 
 suliject to his wife's life estate, t&c, "unto 
 the wife and children of his said Sf)n, or the 
 survivor or survivors of them, for and during 
 the remainder of the life of his said son, to 
 and for their, and each of their sole and sep- 
 arate use, benefit, and behoof, and without 
 being in any manner subject to the debts, 
 contracts or control of his said son." "From 
 and immediately after the death of his wife 
 and sou," his mansion house, &c., and the 
 three tracts of land, his dwelling house on 
 Eding's Bay, &c., and all the slaves, &c., on 
 his three tracts of mnd on Edisto Island, the 
 testator gives, devises, and bequeaths "unto 
 the lawfully begotten issue of his said son 
 living at the time of his death, who shall live 
 to attain the full age of twenty-one years, or 
 who dying before that time, shall leave law- 
 fully begotten issue to live until the time at 
 which the parent or parents, if alive, would 
 have reached the full age of twenty-one 
 years: if more than one, then to them, their 
 heirs and assigns, absolutely and forever: 
 and if only one of them, then to that one, his 
 or her heirs and assigns absolutely and for- 
 ever, the issue of any deceased issue of my 
 said son, and whether the said issue died be- 
 fore or after my said son, taking and receiv-, 
 ing the same share and proporl^ion as the 
 
 112 
 
 ©=»For other cases see same topic and KEY-NUMBER la all Key-Numbered Digests and ludexea
 
 RIVERS V. FRIPP 
 
 »280 
 
 parent or parents, If nllve. would have taken 
 and received. And sli(»uld my said son die 
 witliout leaviuK liiwliilly licyoftcn issue liv- 
 ing at tile time of his d.-atii. who shall live to 
 attain the full a;:e of twenty-one years, or 
 who, dyinj; before that time, sliall leave law- 
 fully begotten issue to live until the time at 
 which the parent or iia rents, if alive, would 
 have attained twenty-one years of a«e. then 
 I Kive. devise and heiiueath all the said real 
 and i»er.sonal property mentioned and «<m- 
 tained in this clause of my will, unto the 
 ri«ht heirs then liviuf; of me. the said Wil- 
 liam Kdiiif^s. to he equally divided tmumn 
 them, share and share alike, accordinj; to the 
 laws of this State for the distril)ution of in- 
 testates' estates." 
 
 John Evans E<lini,'s died two years after 
 ♦278 
 the death of the tes*tator. ids father, leav- 
 ing surviving him his two sons. William M. 
 Edings and John Evans i:din,:r.s. His moth- 
 er. Sarah Edin,i,'s, died in l,S44. William M. 
 Edings lived until liOth Seiitemher. IsrM, 
 wh(>n he departed this life at the aye of 
 twenty years. lie left survivini: him a .son, 
 who died three months after his father, and 
 before his father would have attained tlie 
 full aye of twenty-one years. John Evans 
 Edings, the defendant, was ei^'hteen years 
 and six months old in May, 1S51. The bill 
 is filed by the personal representative of 
 Wm. M. Edinj;s. prayinj,'. amoiif; other 
 things, an aciount of the rents and profits 
 of the estate above devised and beipieatiied. 
 from the death of the Ufe tenant in 1M4 un- 
 til the close of the year IMuO, and that a 
 moiety thereof may be paid to him. The 
 success of the compl.-iiiuuit depends ujion the 
 inquiry whether William M. l-klinys had a 
 vested or continent interest under the will 
 of his grand-father. 
 
 The authorities concur that this inquiry 
 must be determined by the sense in which 
 the testator intended the devi.sees interest 
 in the property to dei)end upon his attaiidng 
 the specified age. Thus a devi.se. to a per- 
 son, if he .shall live to attain a particular 
 age, standing alone, would be contingent: 
 yet if it be followed by a lindtation over in 
 case he die under such age, the devise over 
 Is considered as explanatory of the sense in 
 which the terra is used, to wit: that, at that 
 age. the estate should become absolute and 
 Indefeasible: the interest in question, there- 
 fore, is construed to vest instanter. 1 Jar- 
 man on Wills, 738. The principle is sus- 
 tained by many cases, and among others by 
 Doe v. Nowell. which was first deternnned 
 In the King's Bench, 1 M. & Selw. 32G, and 
 the judgment afterwards allirmed by the 
 House of Lords. 5 Dow P. C. 202. The de- 
 vise was to the testator's nephew for life, 
 and, on liis dtnease. to and among his chil- 
 dren lawfully begotten e<iually, at the age 
 of twenty-one. and their heirs as tenants 
 In common. But. if only one child should 
 4Ricn.EQ.— 8 
 
 live to attain such age, to him or her and 
 his or her heirs, at Ids or lier age of 
 twenty-one: and in ca.se the ne|diew should 
 die without lawful issue, or su<b lawful 
 issue sliould die before twenty-one. then 
 
 *279 
 to and 'among-st the testators nephews 
 and ideces there named, t)r such of them 
 as .should l)e then living, and their heirs 
 and a.ssigns forever. The father, during 
 tile infancy of two of the children, and 
 before the birth of otiiers. levied a fine and 
 afterwards suffered a recovery, and ron- 
 veyed tiie estate to a imrchaser. and died 
 leaving his children undj'r age. It was lield 
 that the children, at their birth, took vested 
 remainders, and they recovereil against the 
 purchaser. The case was decided on the 
 authority of Bromfield v. Crowder. 1 New 
 li<'p. (H. and P.) :mx Testator devised a 
 life estate to his widow, and. on lier death, 
 to Joshua Rose for life, and at the decease 
 of the longest liver of them, he devised 
 all his real estate to the plaintiff, if he 
 should live to attain twenty-one years of 
 age: but in ca.se he die before he attains 
 that age, and his brotlier Charles survive 
 him. "in that case I give my real estate 
 to Charles, if he lives to attain the age of 
 twenty-one years, but not otlierwise; l)ut in 
 case both the above mentioned hoys die 
 before either of tliem attain tiie age of twen- 
 ty-one years, then 1 give my real estate 
 to John Tale, my god-son. and his lu-irs for 
 ever." After the decea.se of the widow and 
 Joshua, and before the plaintiff attained tlie 
 age of twenty-one y«>ars, he filed a bill to 
 liave his riglits declared. On the part of the 
 heir at law, it was insisted, that the remain- 
 der was contingent, and tlie tenant for life 
 having died before the plaintiff attained 
 twenty-one years of age. .such remainder 
 consfMiuently could not take effect, and tlie 
 estate descended to tlie heir at law. On a 
 case made for the opinion of the Judges, it 
 was certified "that the plaintiff took a vest- 
 ed estate in fee simple in the freehold and 
 copyhold estates of the testator, determin- 
 able uiioii the contingency of his dying un- 
 der the age of twenty-one years." The 
 Chief Justice sa.vs: "This is an immediate 
 devise to the plaintiff, to take place on the 
 death of the two preceding devisees. If so, 
 we must either break in upon the terms of 
 the will or give them effe<t. In the latter 
 case, there is an end of all argument about 
 the word if." "There Is nothing in the will 
 to prove that the testator meant the plain- 
 tiff not to take a vested estate unless he 
 
 *280 
 sun-ived twenty-one. Indeed. *the true .sense 
 of the thing is, that the testator meant him 
 to take it as an immediate devise in himself, 
 but that it was to go over in tlie event of 
 his dying under twent.v-one." "Words niu.st 
 be construed according to the intention of 
 the parties." "The apparent iuteutiou, as 
 
 113
 
 *280 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 collected from the whole will, must always 
 control particular expressions." "The fairest 
 construction is, that the plaintifE took an 
 immediate vested estate on the death of the 
 preceding devisees, with a condition subse- 
 quent." Doe V. Moore, 14 East, 601, was a 
 direct devise to A. when he attains the age 
 of twenty-one years: but in case he should 
 die before he attains the age of twenty-one 
 years, then over. It was held by Lord 
 Ellenborough, on the authority of the pre- 
 ceding cases, as well as Edwards v. Ham- 
 mond, 3 Lev. 132, that this did not make 
 the devisee's attaining twenty-one a condi- 
 tion precedent to the vesting of the interest 
 in him: but that the dying under twenty- 
 one is a condition subsequent, on which the 
 estate is to be divested. The rule, and the 
 reason of it, are very clearly stated by Sir 
 E. Sugden, in the argument of Phipps v. 
 Williams, 5 Sim. 44. "Whether the estate 
 be in possession or remainder, If it be de- 
 vised to a man on the happening of an 
 event, as, for instance, his attaining twenty- 
 one years, and if there be a devise over in 
 case the party does not arrive at that age, 
 the devisee will take a vested estate before 
 he attains the specified age, and the estate 
 will go over if he does not attain that age : 
 because it is considered that the words are 
 introduced for the sole purpose of limiting 
 the period when he is to take an indefeasi- 
 ble estate, and not for the pui-pose of show- 
 ing an intention of keeping him out of the 
 enjoyment of the property till that particu- 
 lar event happens." 
 
 This class of cases was at one time the 
 subject of much observation, and particular- 
 ly tlie case of Doe v. Moore was supposed 
 to carry the doctrine too far. But the whole 
 subject was recently considered, and the de- 
 cisions reviewed in Phipps v. Ackers, 9 
 Clarke and Fin. 583. The cause was twice 
 argued in the House of Lords, and once in 
 the presence of the twelve Judges. The 
 question submitted to the Judges was, "What 
 
 *281 
 estate George HoPland Ackers took in the 
 Wheelock estate? Testator gave these es- 
 tates to G. H. A. when and so soon as he 
 should attain the age of twenty-one years: 
 but in case he should die under the age of 
 twenty-one years without leaving issue, in 
 that case the estates should form part of 
 the residuary estate of the testator, which 
 he gave over to another person." Chief 
 Justice Tindal delivered the unanimous 
 opinion of the Judges, that G. H. A., on 
 the decease of the testator, took an estate 
 in fee simple in the lands and heredita- 
 ments of W., subject to be divested in the 
 event of his dying under twenty-one and 
 without issue. He says that, "Whatever 
 may be the true meaning of a devise to A. 
 and his heirs, when or if he shall attain 
 twenty-one, without any concomitant provi- 
 sions, yet there is ample authority for say- 
 
 114 
 
 ing that such words may, from the context, 
 be taken not to indicate the time when the 
 estate is to vest, but to point out an event, 
 on the happening of which, an estate al- 
 ready vested is to be divested, in favor of 
 some other person." He instances two class- 
 es of cases. The second class of cases, con- 
 tinues he, "goe§ on the principle that the 
 subsequent gift over in the event of the dev- 
 isee dying under twenty-one, sufficiently 
 shews the meaning of the testator to have 
 been that, the first devisee should take 
 whatever interest the party claiming under 
 the devise over is not entitled to, which, 
 of course, gives him the immediate interest, 
 subject only to the chance of its being di- 
 vested on a future contingency. Whether 
 the doctrine on which this second class of 
 cases has rested was originjilly altogether 
 satisfactory, is a point which we need not 
 discuss. It is sufficient to say, that it clear- 
 ly has been established and recognized as 
 a settled rule of construction, not only in 
 the Courts below, but also in the House of 
 Lords." In Phipps v. Ackers, the devise 
 was to trustees, in trust to convey to G. H. 
 A., when and so soon as he should attain 
 twenty-one years, &c., Lord Lyndhurst said, 
 that this made no diffei-ence in the disposi- 
 tion of the property. Referring to the 
 course which the case had taken, he says, 
 "the object which the House of Lords had 
 in view was, that the learned Judges should 
 review the cases of Doe v. Moore and Brom- 
 
 *282 
 field *v. Crowder, and other cases of that 
 class. The Judges, after consideration, unan- 
 imously pronounced the opinion, that G. H. 
 A. took a vested estate in fee, liable to be 
 divested in the event of his dying under 
 twenty-one, without leaving lawful issue. I 
 am perfectly satisfied with that decision of 
 the Judges." Lord Campbell said, he 
 thought "it could not admit of any reason- 
 able doubt that, if it had been a legal limi- 
 tation, it would have vested in George Hol- 
 land Ackers immediately upon the death of 
 the testator, liable to be divested on his 
 dying before twenty-one without issue." 
 Lord Brougham thought that "Doe v. Moore 
 was an extreme application of the doctrine, 
 but that the principle sanctioned by the 
 cases bad been for so many years adopted 
 by acquiescence, that no course ought to be 
 taken which could break in upon it." "It 
 is," says he, "of the most essential conse- 
 quence that the doctrines which have been 
 long received for law, and acted upon by 
 the Courts in their decisions, and by parties 
 and their professional advisers in the dis- 
 position of property, should not be shaken." 
 The bill had been filed by the heiress at law 
 for an account of the rents and profits. 
 George Holland Ackers was only twelve 
 years of age at the testator's • death. His 
 demurrer was sustained by the Vice (Chan- 
 cellor, (Phipps v. Williams, 5 Sim. 44,) and,
 
 RIVERS V. FRIPP 
 
 *285 
 
 on appeal, the judgment of the Vice Chan- 
 cellor was atlirnied by the Iloiise of Lords. 
 
 Rej:ardiii« the doctrine then as well es- 
 tahlished, it may be proper, l)efore consider- 
 ing,' the application of it to this will, to ad- 
 vert to Ihe distinction between a devise an«l 
 a be(iuest of personalty. It is true the rules 
 in relation to tlie latter are chieHy derived 
 from the civil law. Rut, in botli, the ascer- 
 tained intention of the testator will control 
 the construction. In this will, the real and 
 l)ersonal estate are included in the same 
 clause, and made subject to the sam*' provi- 
 sions. On reference to the authorities, it 
 will be perceived, that the princii)Ie stated 
 applies as well to i)ersonal as to real estate. 
 Thus. Mr. Jarman (vol. 1, p. 771) says, when 
 a bequest is to the children, who shall at- 
 tain, or to such children as shall attain the 
 age of twenty-one years, there beiny in such 
 
 *283 
 case *no gift, except to tlie persons who an- 
 swer the qualification which the testator 
 has annexed to the enjoyment of his bounty, 
 the vesting of the legacy is postponed. Rut 
 even these exjiressions may be explained 
 and neutralized by the context, "as if the 
 testator, after giving to the children who 
 attiiin a certain age, goes on to dispose of 
 the property in ca.se there is no child who 
 does attain the prescribed age, he affords a 
 plausil)le ground for the argument on which 
 Edwards v. Hammond, and that class of cas- 
 es, is founded, to wit: that the subsecjueut 
 words explain the .sense in which he intend- 
 ed the prior words to be understO(Hl. namely, 
 that the interest of the legatees was merely 
 liable to be divested on the event described; 
 in other words, was to Ijecome ab.solute at 
 (not to be postponed until) the prescribed 
 age." 
 
 William Edings. the testator, had but one 
 son. To that .son he devises and bequeaths 
 (subject to a life interest in his widow) the 
 homestead, and the valuable property, real 
 and personal, attached thereto, during his 
 life, subject to certain restrictions. "From 
 and immediately after the death of his wife 
 and son," he devises and be(iueaths the same 
 property (describing it) unto the lawfully 
 begotten issue of his said son, living at the 
 time of his death, who should live to attain 
 twenty-one years of age, or who. dying be- 
 fore that time, should leave issue to live 
 until the parent would have attained twen- 
 ty-one years of age. Rut should his son die 
 without leaving issue living at the time of 
 iiis death, wlio .shall live to attain twenty- 
 one years of age. &c., then the testator de- 
 vises and l)e(|ueaths "the said real and per- 
 sonal property nuwitioned and contained in 
 rbat clause of Ills will." unt(» tiie right heirs 
 of him (I lie testator) then living, to be equal- 
 ly divi<led. &c. The context explains the 
 meaning of the testator. The gift is to the 
 issue of his son, to whom he had previously 
 given a life estate. The usufruct and en- 
 
 joyment of the estate was to continue in 
 them as it had been in their father, but the 
 e.state was not to become absolute and in- 
 def«>asible until attaining the full age of 
 twenty-one years. The langiuige of the an- 
 notator on Mr. Fearne, .seems very appli- 
 cable. Commenting on Edwards v. Ihim- 
 
 *284 
 mond, he says: ♦"The event in that ca.se, 
 namely, the attainment of twenty-one. is 
 one which is often considered as a ipmsi 
 certain event, so that it is not required 
 that the vesting of an estate should be sus- 
 pended till tlie happening of such an event: 
 it is suHicient if the e.state be divested in 
 ca.se it should not happen, especially as that 
 event is not of such a character as to con- 
 •stitute the indi.spensai)le pre-re<iuisite to 
 the attaching of any sort of interest in the 
 party. On the contrary, it is ratlier to be 
 supposed that the testator, considering it 
 most probal)le that the party would attain 
 twenty-one, should lie maintained in a suit- 
 able manner out of the rents and profits, 
 as he would be if he should take a vested 
 interest, instead of allowing those rents and 
 profits to go to his heir at law, whom he has 
 shown no intention to benefit." 2 Fearne, 
 sec. 351, a. And so Mr. Jarman on this 
 point says that, although it would not per- 
 haps be warrantable to lay down any gen- 
 eral position to that effect, yet several of 
 the cases point to the conclusion that, in 
 bequests of this character, the construction 
 should be, that "the absolute ownershii* only 
 is suspended until the prescrilied age: and 
 that, in the meantime, the legatees should 
 take vested interests, with a lial>ility to be 
 divested on the happening of the presc-ribed 
 event." 
 
 These remarks derive force fron? the con- 
 sideration, that the testator seems to have 
 placed himself in the relation of a parent 
 to his son's offspring, or, at least, to have 
 intended so to provide for them. lie con- 
 templated his son's improvidence, or. per- 
 haps, his insolvency. In that event, the 
 life estate given to him is revoked, ami. for 
 the remainder of his life, the estate is given 
 "to the wife and children of his said son, 
 or the survivor of them, without being la 
 any manner subject to the debts, contracts 
 or control of his said son." From and im- 
 mediately after the termination of the life 
 interest, the estate is devi.sed to the issue, 
 as before recited. It is true that the codicil 
 of 1S.'1G gives to his two grand-sons tiie crop 
 of the preceding year, liut payment is ex- 
 pressly postponed until twenty-one years of 
 age, with directions to invest for their use. 
 
 ♦285 
 Assuming that their father might live ♦in- 
 solvent, the testator had carefully and lib- 
 erally provided for his grand-children dur- 
 ing their father's life time: can it be pre- 
 sumed that he intended this enjoyment to be 
 interrupted and suspended from the death of 
 
 115
 
 =2S.3 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 the father until his issue had attained the 
 prescribed age? 
 
 It has been often said that where the will 
 is capalde of that construction, an interest 
 shall, if possible, be considered as vested 
 rather than contingent: and for obvious 
 reasons. It is not less true, that the lean- 
 ing of the Courts is to sustain the will of a 
 testator, rather than to give such construc- 
 tion as would defeat it. It is not too much 
 to assume that the testator, in this case, 
 intended to make a full and final disposition 
 of his whole estate. He not only executed 
 a will which was to be the law of his prop- 
 erty, but he established a tribunal for de- 
 claring this law. The instrument was made 
 upon advisement, with manifest reference 
 to the rules of law, and an intention to ad- 
 here to them. The most prominent object in 
 his will was the disposition of the Edisto 
 Island estate, on which he lilmself resided. 
 After securing this to his widow for life, 
 his manifest purpose was to secure it to his 
 only son and his immediate family, so long 
 as he was permitted to secure it by the rules 
 of law. Construing the devise as a vested 
 interest, subject to be defeated on the hap- 
 pening of the prescribed event, the object of 
 the testator is completely attained. But if 
 it be regarded as a contingent remainder, not 
 to take effect until the issue attained the 
 prescribed age, not only is his intention de- 
 feated, but the testator contemplated the 
 state of things, and so framed his will that 
 his purpose would be certainly and obvious- 
 ly frustrated. "Every remainder must vest, 
 either during the particular estate, or else 
 at the very instant of its determination." 
 From this rule it follows that where the 
 event, "on which a contingent remainder is 
 limited to take effect, does not happen by the 
 time at which the preceding estate deter- 
 mined, it never can arise or take effect at 
 all." Fearne, 308. The testator here par- 
 ticularly contemplates the probable deter- 
 mination of the particular estate, and, ac- 
 cording to the hypothesis, postpones the 
 
 *286 
 
 vesting *(it may be) for twenty years there- 
 after. The devise over to the testator's right 
 heirs, is only on the happening of the con- 
 tingency. The result would be, thdt the fee 
 descended to his heirs at law as in case of 
 intestacy, or that it passed under the resid- 
 uary clause of his will; in which latter case 
 the offspring of his son, although they might 
 afterwards attain the age of twenty-one 
 years, would find themselves effectually ex- 
 cluded from any participation in the estate, 
 in consequence of the very measures adopt- 
 ed to secure their absolute right in it. 
 
 The subsequent clauses of the will, and 
 particularly the devise to the children of 
 his deceased daughter, Eliza Whaley, con- 
 firm the conviction that the intention of the 
 testator was that the issue should take a 
 vested, though defeasible interest. The 
 116 
 
 Court is of opinion that William M. Edings 
 took a vested interest under the will of his 
 grand-father, which was not divested or de- 
 feated until the death of his child, \niov to 
 the period at which his father would have 
 attained the age of twenty-one years, and 
 that his pei'sonal representative is entitled 
 to an account of a moiety of the interim 
 rents and profits, from the decease of Sarah 
 Edings, the life tenant. 
 
 As to the proceeds of tho crop of 1835, 
 the language of the codicil seems sufficiently 
 explicit. The gift is direct to the two grand- 
 sons, to be equally divided between them, 
 each receiving his respective share as he 
 comes to the lawful age of twenty-one yeai's, 
 and his executors are authorized to convert 
 the same into any valuable property for 
 their use. This vests an immediate interest 
 in each of the legatees, transmissible to his 
 personal representative. The event never 
 having occurred on which the right of sur- 
 vivorship would attach, the complainant is 
 entitled to an account and payment of the 
 intestate's interest in this fund. 
 
 The complainant is also entitled to an in- 
 quiry and account as to the estate of Mrs. 
 Sarah Edings, deceased, the grand-mother 
 of the intestate, William M. Edings, de- 
 ceased. 
 
 It is ordered and decreed, that it be re- 
 ferred to one of the masters to state an ac- 
 count between the parties upon the princi- 
 
 *287 
 *ples herein declared, and that he have 
 leave to report any special matter, parties 
 being at liberty to apply for such further 
 orders, at tlie foot of this decree, as may be 
 necessary to carry the same into effect. 
 
 Extract from Will. 
 
 "Item. I give and be(iueatli unto my be- 
 loved wife, Sarah Edings, for and during her 
 natural life, the use and occupation of my 
 principal mansion-house, yard and garden, 
 on Edisto Island, of my dwelling-house on 
 Eding"s Bay, and of all my three tracts of 
 land on Edisto Island, containing in the 
 whole about twelve hundred acres. And I 
 further give and bequeath unto my said wife, 
 also for and during her natural life, the use, 
 occupation, interest and income of all the 
 slaves, and of the stock and plantation im- 
 plements and utensils on my said three 
 tracts of land on Edisto Island, to be deliv- 
 ered to her from the time of my death. And 
 I give and bequeath absolutely to my said 
 wife, my wench Sylvia, and carriage and 
 horses, my boats, and household furniture. 
 And I will, order and direct that the provi- 
 sion hereby made by me for my dear wife 
 shall be in lieu and bar of dower or thirds, 
 and of all other claims which she may or can 
 in any manner have against my estate, real 
 or personal. 
 
 "Item. I give, devise and bequeath unto 
 my dear son, John Evans Edings, for and
 
 RIVERS V. FRTPP 
 
 *290 
 
 durinjr his natural life, and sultjeft to thp 
 conditions, limitations and i)rovisions herein- 
 after expressed and declared, all my said 
 three tracts of land on Edlsto Island, con- 
 taining in the whole, as aforesaid, twelve 
 hundred acres, tojjether with luy Sea liays 
 on the said Island, sultject to the life estate 
 of my dear wife in my principal mansion- 
 house, yard and garden, in my dwelling- 
 house on Edinf^'s Bay, and in my said three 
 tracts of land, and reserving to my sister, 
 Mary Chisolm, and to each of my daughters, 
 the right of having each a lot of land for a 
 residence on any of my Sea Bays, at their 
 election, for and during their respective nat- 
 ural lives, and no longer; and which said 
 right I do hereby give and bequeath to them 
 respectively. And also I further give and 
 bequeath to my said son, for and during h\:i 
 
 *288 
 na*tural life, and subject to the said con- 
 ditions, limitations and provisoes herein-aft- 
 er expressed and declared, the use, occupa- 
 tion, interest and income of all the slaves, 
 and of the stock, plantation implements and 
 utensils on my said three tracts of land, sub- 
 ject to the life estate therein of his mother, 
 nij' dear wife as aforesaid. And I do 
 hereby will, order and direct, that if at any 
 time or times hereafter, during the life of my 
 said son, the operation of any bankrupt or 
 insolvent law, or any act, matter or thing 
 in law or in equity, without or with the will 
 or consent of my said son, would deprive him 
 of the use. annual rents, issues, services, 
 profits and income arising from the devise 
 and bequest herein and hereby made to him, 
 as the same shall annually and from time to 
 time accrue after the death of his said moth- 
 er; or if he. my said son. shall sign or exe- 
 cute any instrument, or enter into any con- 
 tract or agreement, by which he shall con- 
 tract or agree to sell, assign or otherwise 
 part with the said use, annual rents, issues, 
 services, profits and income, or any part 
 thereof, as a .security for any sum or sums of 
 money due and owing by him. or to be lent 
 and advanced by him, to any per.son or per- 
 sons whomsoever, or in any manner charge 
 or disi)o.se of the said use, annual rents, is- 
 sues, services, profits and income, or any 
 part thereof, by way of anticipation, or 
 wliereby or in which he should authorize and 
 enqwwer, or intend to authorize and em- 
 power, ajiy person or persons whomsoever to 
 rei-eive the same, or any part thereof, other- 
 wise than for his, my .said son's, own and di- 
 rect and inunediate use, then, and in any 
 or either of these cases, I from thenceforth 
 revoke and annul the said devise of my said 
 three tracts of land and my Sea Rays on 
 Edisto Island, to my said son for life, sub- 
 ject to the life estate of my dear wife there- 
 in, and in my principal niansion-hou.se, yard, 
 garden, and in my dwelling-house on Kdisto 
 Bay. and the reservations to my sister and 
 daughters respectively, as aforesaid; and 1 
 
 thenceforth also revoke and annul the said 
 bequest to my .said son for his life of tlie 
 said slaves. st<»ck and plantation implements 
 and utensils, on my said three tracts of land 
 on Kdisto Island, subject to the life estate 
 
 ♦289 
 therein of his *mother, as aforesaid; and I 
 thenceforth give, devi.se and lHH|ueath the 
 said three tracts of land, and my principal 
 mansion-house, yard, garden and dwelling- 
 house on Eding's Bay, and my Sea Bays on 
 Kdisto Island, as aforesaid, and the said 
 slaves, stock and plantation implements and 
 utensil.s. on my .said three tracts of land on 
 Kdisto Island, as aforesaid, subject to the 
 life estate therein of my wife, and to the re- 
 strictions as aforesaid unto the wife and 
 children of my said son, or the survivor or 
 survivors of them, for and during the re- 
 mainder of the life of my .said son. to and 
 for their and each of their sole and separate 
 use, benefit and Ix'hoof, and without being in 
 any manner subject to the debts, contracts 
 or control of my .said son. And from and 
 immediately after the death of my said wife 
 and son, I give, devise and bequeath all my 
 said three tracts of land, my said mansion- 
 house, yard and garden, my dwelling house 
 on Eding's Bay, and my Sea Bays on Kdisto 
 Island, as aforesaid, subject to the reserva- 
 tions in favor of my sister and my two 
 daughters, as aforesaid; and all my slaves, 
 stock, and plantation implements and uten- 
 sils, on my said three tracts of land on Edis- 
 to Island, as aforesaid, unto the lawfullj' 
 begotton issue of my said son, living at the 
 time of his death, who. to wit, the said is- 
 sue, shall live to attain the full age of twen- 
 ty-one years, or who. dying before that time, 
 shall leave lawfully begotten issue to live 
 luitil the time at which the parent or parents, 
 if alive, would have reached the full age of 
 twenty-one years; if more than one, then to 
 them, their heirs and assigns, absolutely and 
 forever; and if one. then to that one. his or 
 her heirs and assigns, absolutely and forever, 
 the issue of any deceased issue of my said 
 son, and whetlier the said issue died before 
 or after my said son, taking and receiving 
 the .sanie share and proportion as the jiarent 
 or parents, if alive, would have taken and 
 received. And should my said son die with- 
 out leaving lawfully begotten issue, living at 
 the time of his death, who, to wit, the said 
 issue, shall live to attain the full age of 
 twenty-one years, or who. dying before that 
 time, shall leave lawfully begotten issue to 
 liv(» until the time at whidi the parent or 
 
 ♦290 
 parents, if alive, woidd ♦have attained twen- 
 ty-one years of age, then I give, devise and 
 bequeath all the said real and personal prop- 
 erty mentioned and contained in this clause 
 of my will, unto the right heirs then living 
 of me. the said Wm. Edings, to Ix; equally 
 divided among them, share and share alike, 
 
 117
 
 *290 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 according to the laws of this State for the 
 distribution of intestate's estates. 
 
 "Item. I give, devise, and bequeatli unto 
 my two grand-sons, William James Whaley 
 and Benjamin Seabrook AVhaley, the children 
 of my dear deceased daughter, Eliza Whaley, 
 for and during their respective natural lives, 
 all my plantation or tract of land on Slann's 
 Island, coumionly called Glover's tract, and 
 also that plantation or tract of land on Che- 
 haw, together with all the slaves, stock, plan- 
 tation implements and utensils on the said 
 two plantations, belonging to me at the time 
 of my death, and the sum of twenty thou- 
 sand dollars. And upon the death of my 
 said grand-sons respectively, then I give, de- 
 vise, and bequeath their respective shares in 
 the said lauds and negroes, stock, plantation 
 implements and utensils, and twenty thou- 
 sand dollars, unto their respective lawfully 
 begotten issue living at the time of the re- 
 spective deaths of my said grand-sons, who, 
 to wit, the said issue, who shall attain the 
 full age of twenty-one years, or who, dying 
 before that time, or before the death of my 
 grand-son or grand-.sons, as aforesaid, leave 
 lawfully begotten issue to live until the time 
 at which the parent or parents, if alive, 
 would have attained the full age of twenty- 
 one years, to be equally divided among them; 
 if more than one, then to them, their heirs 
 and assigns, absolutely and forever, the is- 
 sue of any deceased issue then only taking 
 and receiving the share or proportion to 
 which the parent or parents, if alive, would 
 have been entitled. And should either of mj' 
 said grand-sons die without leaving lawfully 
 begotten issue living at his, my said grand- 
 son's death, who, to wit, the said issue, who 
 shall live to attain the full age of twenty- 
 one years, or dying before that age, leave 
 lawfully begotten issue living at the time at 
 which the parent or parents, if alive, would 
 have reached the full age of twenty-one years, 
 then the part of the one so dying shall go 
 
 *291 
 *to the survivor of my said grand-sons, or to 
 the issue of him of my said grand-sons, who 
 may have previously died, leaving issue liv- 
 ing at the time of his death, who, to wit, the 
 said issue, who shall live to attain the full 
 age of twenty-one years, or dying before that 
 time, leave lawfully begotten issue living at 
 the time at which the parent or parents, if 
 alive, would have reached the full age of 
 twenty-one years ; if one, then to that one, 
 his or her heirs and assigns, absolutely and 
 forever: and if more than one, then to them, 
 their heirs and assigns, absolutely and for- 
 ever, the issue of any deceased issue only 
 taking and receiving the share or proportion 
 which the parent or parents, if alive, would 
 have taken and received. And should both 
 of my said grand-sons die without leaving 
 lawfully begotten issue living, at the death 
 of the survivor of them, my said grand-sons, 
 who, to wit, the said issue, who shall live to 
 118 
 
 attain the full age of twenty-one years, or 
 who, dying before that age, leave lawfully 
 begotten issue living at the time at which 
 the parent or parents, if alive, would have 
 reached the full age of twenty-one years, 
 then, and in either of those cases, I give, de- 
 vise, and bequeath the said two plantations 
 and negro slaves, with the stock, plantation 
 implements and utensils, and the said sum 
 of twenty thousand dollars, unto the right 
 heirs then living of me, the said William 
 Ediugs, to be equally divided among them, 
 according to the law of this State for the 
 di-stribution of intestate's estate. 
 
 "Item. I give, devise, and bequeath all my 
 plantation called Indian Field, purchased of 
 the executors of Henry Calder, together 
 with all the slaves, stock, plantation imple- 
 ments and utensils, and personal property, 
 belonging to me thereon, at the time of my 
 death, and also my wench named Katy, with 
 her issue and increase, unto my dear daugh- 
 ter, Sarah Chisolm, the wife of George Chis- 
 olm, junior, for and during her natural life, 
 to and for her sole and separate use, and 
 without being in any manner subject to the 
 debts, contracts, or control of any husband 
 whom she may have? and from and immedi- 
 ately after the death of my said daughter, 
 Sarah Chisolm, then I give, devise, and be- 
 
 *292 
 queath *the said plantation called Indian 
 Field, and the slaves, stock, plantation uten- 
 sils and personal property thereon belonging 
 to me, unto the lawfully begotten issue of 
 my said daughter, Sarah, living at the time 
 of her death, who, to wit, the said issue, 
 who shall live to attain the full age of twen- 
 ty-one years, or who, dying before that time,, 
 shall leave lawfully begotten issue to live 
 until the time at which the parent or par- 
 ents, if alive, would have attained the full age 
 of twenty-one years ; if more than one, then 
 to them, their heirs, and assigns, absolutely 
 and forever ; and if one, then to that one, his 
 or her heirs and assigns, absolutely and for- 
 ever, the issue of any deceased issue of my 
 said daughter, and whether the said issue 
 died before or after my said daughter, tak- 
 ing and receiving the same share and propor- 
 tion as the parent or parents, if alive, would 
 have taken and received ; and should my 
 said daughter, Sarah, die without leaving 
 lawfully begotten issue living at the time of 
 her death, who, to wit, the said issue, who 
 shall live to attain the full age of twenty- 
 one years, or who, dying before that age, 
 leave lawfully begotten issue to live until 
 the time at which the parent or parents, if 
 alive, would have attained the full age of 
 twenty-one years, but leaving her husband 
 surviving her, then, and in that case, I 
 thenceforth give, devise, and bequeath the' 
 use, occupation, and enjoyment of the said 
 real and personal estate, mentioned and con- 
 tained in this clause of my will, unto her 
 said husband, for and during his natural
 
 RIVERS V. FRIPP 
 
 »295 
 
 life, and then from and after the death of 
 her said liusband, I give, dcvi.se, and be- 
 queath all the said real and personal projier- 
 ty mentioned and contained in this clause of 
 my will, unto the right heirs then living of 
 me, the said William Ediugs, to be etjually 
 divl(U>d among them, according to (he laws 
 of this State for the distribution of inti's- 
 late's estates. And should my .said daugh- 
 ter, Sarah, die without leaving lawfully be- 
 gotten issue living at the time of her death, 
 who, to wit, the said issue, who shall attain 
 the full age of twenty-one years, or who, dy- 
 ing before that age, leave lawfully begotten 
 i.ssue to live until the time at which the 
 pan-nt or parents, if alive, would have readi- 
 
 *293 
 ed the full age of twenty-*one years, and 
 without leaving her, my said daughter's hus- 
 band, surviving her, then from and inunedi- 
 ately after the death of my said daughter, I 
 give, devise, and be(|ueatli all the said real 
 and personal property mentioned and con- 
 tained in this clause of my will, unto the 
 right heirs then living of me, the said Wil- 
 liam Edings, to be equally divided among 
 them, according to the laws of this State for 
 the distribution of intestate's estates. 
 
 "Item. In like maimer, 1 give, devise, and 
 beiiueath all my plantation on John's Island, 
 purchased of Commodore Campbell, together 
 with all the slaves, stock, plantation utensils, 
 and personal property belonging to me there- 
 on, at the time of my death, and also all 
 my plantation called Archtield. situate in 
 Saint Paul's Parish, and purchased by me of 
 -Mrs. Harriet Crafts, with all the slaves, 
 Mtock, plantation utensils, and personal prop- 
 erty thereon belonging to me at the time of 
 my death, and also my wench Ilagar, with 
 lier issue and increase, unto my dear daugh- 
 ter, Mary I'ripp, the wife of .Tohn A. Fripp, 
 for and during her natural life, to and for 
 lier own sole and separate use, and without 
 being iu any manner sul)ject to the debts, 
 contracts, or control of any husband whom 
 she may have; and from and immediately 
 after the death of my .said daugliter, Mary 
 Fripi». then I give, devise, and l»e<iueath the 
 s;ii(l iilantation on John's Island, and the 
 said plantation called Archfield. and the 
 slaves, stock, plantation utensils, and per- 
 sonal property belonging to me on the said 
 two plantations at the time of my death, un- 
 to the lawfully begotten issue of my said 
 daughter, Mary, living at tlie time of her 
 <leath, who, to wit, the said issue, who shall 
 live to attain the full age of twenty-one 
 .vears, or who. dying liefore that time, shall 
 leave lawfully begotten issue to live until 
 the time at whi<h the parent or parents, if 
 iilive, would have attained the full age of 
 twenty-one years ; if more than one. then to 
 them, their heirs and assigns, absolutely and 
 forever : and if one, then to that one. his or 
 her heirs and assigns, absolutely and forever, 
 the issue of any deceased issue of my said 
 
 daughter, and whether the said issue die be- 
 fore, or after her, my said daughter, taking 
 and receiving the same share and proportion 
 
 *294 
 as the parent ♦or parents, if alive, would 
 have taken and received. And should my 
 said daughter, Mary, die without leaving law- 
 fully begotten issue living at the time of her 
 death, who, to wit, the said issue, shall live 
 to attain the full age of twenty-one years, 
 or who, dying before that age, leave law- 
 fully begotten issue to live until the time at 
 which the parent or parents, if alive, would 
 have attained the full age of twenty-one 
 years, but leaving her husband surviving her, 
 then, and in that ca.se, I thenceforth give, 
 devise, and bequeath, the use, occupation, 
 and enjoyment of the said real and personal 
 property, mentioned and containe<l in this 
 clause of my will, unto her .said liusband. for 
 and during bis natural life; and then from 
 and immedi.'itely after the death of her said 
 husband, I give, devi.se and bequeath all the 
 said real and personal property, mentioned 
 and contained in this clause of my will, unto 
 the right heirs then living of me, the said 
 William Edings, to be equally divided among 
 them, according to the laws of this State for 
 the distribution of intestate's estates; and 
 should my said daughter, Mary, die without 
 leaving lawfully begotten issue living at the 
 time of her death, who, to wit, the said is- 
 sue, wiio shall attain the full age of twenty- 
 one years, or who, dying before that age, 
 leave lawfully begotten issue to live until the 
 time at which the parent or parents, if alive, 
 would have reached the full age of twenty- 
 one years, and without leaving her. my said 
 daughter's husband, surviving her, then from 
 and immediately after the death of my said 
 daughter, I give, devise, and bequeath all the 
 said real and personal property, mentioned 
 and contained in this clause of my will, unto 
 the right heirs then living of me, the said 
 William Edings, to be equally divided among 
 them, according to the laws of this State for 
 the distribution of intestate's estates. 
 
 "Item. I give and bequeath my slave 
 Daphne, with all lier issue and increase, un- 
 to my grand-son, William Mings, his execu- 
 tors, admini.strators, and assigns forever. 
 
 "Item. I give, devise, and beiiueath all the 
 rest, residue, and remainder of my estate, 
 real and per.sonal, whatsoever and whereso- 
 ever, unto my dear wife, the issue of my de- 
 
 *295 
 ceased daughter, ♦Eliza Whaley, and my two 
 daughters, Sarah Chisolm and Mary Fripp, 
 to be equally divided among them, share and 
 share alike, the issue of my daughter, Eliza 
 Whaley, receiving only one share; and I 
 will order and direct that the issue of any of 
 my said residuary devisees and legatees who 
 may die before me, shall take and receive 
 the same share and projiortion in my said re- 
 siduary estate, real and personal, as the par- 
 
 119
 
 *29J 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 eiit or i.areiits, if alive, would bare taken 
 and received." 
 
 Codicil. 
 
 "Item. I farther more give and bequeath 
 unto my grand-sons, William Edings and 
 John Evans Edings, the children of John E. 
 Edings. the proceeds of the crop of cotton 
 made on my plantation on Edisto Island, in 
 the year eighteen hundred and thirty-iive, to 
 i)e equally divided between them, each receiv- 
 ing his respective share as he comes to the 
 lawful age of one and twenty years. 
 
 "My executors named in my will are au- 
 thorized to convei't the same into any valu- 
 able property for their use. 
 
 "Item. It is likewise my will, that should 
 either of the above named children die be- 
 fore he attains the age of one and twenty 
 years, leaving no lawful issue, then, in that 
 case, the survivor shall be heir to the wliole 
 amount." 
 
 The defendant. John Evans Edings, appeal- 
 ed from so much of the foregoing decree, as 
 declares that \Yilliam M. Edings took a vest- 
 ed estate in a moiety of the Edisto Island 
 property, on the following grounds: 
 
 1. Because the attainment of the age of 
 twenty-one years formed a part of the orig- 
 inal description of the devisee and legatee, 
 and the interest was necessarily contingent 
 on account of the person ; and that William 
 M. Edings not having attained that age, nev- 
 er answered the description of the person 
 who was to take. 
 
 2. Because the attainment of the specified 
 age was a condition precedent to the vesting 
 of any interest in William M. Edings, and 
 not a condition subsequent, the fulfilment of 
 which would make a defeasable vested estate 
 indefeasable. 
 
 *296 
 
 *3. Because the interest of William M. Ed- 
 ings in the real estate was not a remainder, 
 but an executory devise ; and that his inter- 
 est in the personal estate was an executory 
 interest ; and that the vesting of either de- 
 pended upon his attaining the age specified. 
 
 4. Because the intermediate rents and prof- 
 its of the said property accumulated for the 
 benefit of the person who should become ul- 
 timately entitled to the corpus. 
 
 5. Because it is apparent from the will that 
 the testator intended the intermediate rents 
 and profits to accumulate, and to postpone 
 the vesting. 
 
 6. Because the decree is contrary to law 
 and equity, and the demurrer of the said 
 John Evans Edings should have been al- 
 lowed. 
 
 B. J. Whaley, for appellant. If the testa- 
 tor stood, as to W. M. Edings, in loco par- 
 entis, and this were an application by W. M. 
 Edings to be allowed maintenance out of the 
 rents and profits, the application could not 
 succeed. Hanson v. Graham, 6 Ves. 238 ; 
 120 
 
 Chambers v. Goldwyn, 11 Ves. 1; Mackie v. 
 Alston, 2 Des. 362 ; Brailsford v. Ileyward, 
 2 Des. 30; Allen v. Croslaud, 2 Rich. E(i. GS; 
 Eairman v. Green, 10 Ves. 48 ; Cavendish v. 
 Mercer, 5 Ves. 195; Kendall v. Nash, 5 Ves. 
 1"J7 ; Mitchell v. Bower, 3 Ves. 2.82 ; Long v. 
 Long, 3 Ves. 286, note ; Greenwell v. Green- 
 well, 5 Ves. 19.5. But the exception to the 
 general rule of law, (that a contingent lega- 
 cy, with a limitation over, or a legacy pay- 
 able at twenty-one, does not carry interest.) 
 does not extend bejond tho 'se of parent 
 and child, or husband and ..ile; and the 
 testator's will contains nothing which shows 
 that he intended to place himself in loco 
 parentis. Crickett v. Dolby, 3 Ves. 10; But- 
 ler V. Butler, 3 Atk. 58 ; Lupton v. Lupton, 
 2 Johns. Ch. G2S ; ^'an Bramer v. Hoffman, 
 2 Johns. Ch. 200; Errington v. Chapman. 12 
 Ve.s. 10; Rawlins v. Goldfrap, 5 Ves. 440; 
 Leslie v. l^eslie, Lloyd and G. 1 ; Moggrid-'e 
 V. Thackwell, 1 Ves. 474; Earle of liad 
 V. Shafto, il Ves. 457 ; 2 Jarm. on Wills. 
 Upon the fir.st and second grounds of ai), . . 
 Mr. Whaley cited Boraston's case. 3 Rep. 19 ; 
 Edwards v. Hammond, 1 B. and P. New Rep. 
 
 *297 
 324, note; Fearue, *241, et .seq. ; Broomfield 
 V. Crowder, 1 B. and P. New Rep. 313, Doe 
 V. Moore. 14 East. 601; Doe v. Xowell, 1 M, 
 and S. 327, S. C. 5 Dow. 202 ; Plapps v. Wil- 
 liams, 5 Sim. 44 ; 2 Ves. Sen. 121 : 18 Ves. 
 368; 3 P. W. .300; Cases Temp. Talbot, 22S; 
 2 Ves. Sen. 521 ; Freem. 243 ; Cases Temp. 
 Talbot, 245; Bull v. Pritchard, 1 Russ. 213; 
 Vawdry v. Geddes, 1 R. and M. 203; Leake 
 v. Robinson, 2 Mer. 363 : Smith on Execut. 
 Int. 136 et seq. ; Durtleld v. Dutheld, 1 Dow 
 and C. 268 ; Barker v. Lea, 1 T. and R. 413 ; 
 Bland v. Williams, 1 M. and K. 411 : Judd v. 
 Judd, 3 Sim. .525; Hunter v. Judd, 4 Sim. 
 455 ; Phipps v. Ackers, 9 CI. and Fin. 595 ; 
 Skey V. Barnes, 3 Mer. 334 ; Smith on Execut. 
 Int. 184; 1 Jarm. on Wills, 738, et seq.; 
 Brailsford v. Heyward, 3 Des. 30 ; Mackie v. 
 Alston, 3 Des. 362; Redfern v. Middleton, 
 Rice, 459; Fearne, 503; 4 Johns. Ch. 388; 
 7 Wend. 52 ; Jac. R. 468 ; 1 Story Eq. § 289, 
 290. 
 
 Elliott, Petigru, contra, cited Goodtitle v. 
 Whitby, 1 Burr. 234; 1 Jarm. on Wills, 624, 
 et seq. ; 1 Fearne, 241, 347 ; Sug. on Real 
 Prop. 286; Fearne Posth. W. 191. 
 
 The opinion of the Court w^as delivered by 
 
 DUNKIN, Ch. The Court have given to 
 this appeal all the consideration which the 
 importance and difficulty of the questions in- 
 volved, and the able argument of the counsel 
 properly demanded. Not only have conliict- 
 ing decisions been adduced, but text writers 
 of acknowledged respectability have differed 
 as to the result of those decisions. It is be- 
 lieved, however, that not only is the prepon- 
 derance of authority in favor of the decree, 
 but that, in adopting this construction, some
 
 RIVERS V. FRIPP 
 
 *300 
 
 gonoral principles are followed which this 
 Court luive uniformly recognized in the inter- 
 pretation of testamentary instruments. 
 
 It is not proposed to attempt any further 
 review of the authorities. Rut it has heen 
 familiarly stated, and was repeated hy this 
 rourt in Sndth v. Hilliard, 3 Strol). Ivi. 211, 
 that whenever there is a doui)t whether the 
 estate be vested or contingent, "the rule is to 
 I)re.sTime that the testator intended to give a 
 
 ♦298 
 vested rather *than a contingent interest; 
 and even where the words import contin- 
 gency, but do not create a condition prece- 
 dent, they give a vestiHl interest to the devi- 
 see, subject to be divested if the contingency 
 should not happen." See also Fearne, 241 to 
 247, (10th Ed.) Although the reasons of this 
 rule are various, and more or less obvious, 
 and, as might be supi»osed, have been re* 
 ceived with more or less favor, the rule it- 
 self seems well settled. So from Roraston's 
 case, 3 Rep. 19, down to the very recent case 
 of Williamson v. Rerry, decided by the Su- 
 preme Court of the I'nited Stales in 1S,50, 8 
 ilow. 40.J [12 L. Ed. 1170J, words seemingly 
 creati\e of a future interest have been fre- 
 quently construed to refer to the futurity of 
 the possession, and not as designed to post- 
 pone the vesting of the estate. In Roraston's 
 case there was a term ol" eight years devised 
 to A. and R., and, after the said term, the 
 land to remain to executors for the perform- 
 ance of his will 'till such time as II. should 
 accomplish his full age of twenty-one years; 
 and when the said 11. should come to his age 
 of 21, tiien to him and to his heirs forever.' 
 It was held by the Court that the estate was 
 ve.sted in H. ; that the adverbs of time, when, 
 &c., did not make anything necessary to pre- 
 cede the vesting of the remainder, but merely 
 expressed the time when it should take effect 
 in possession. It was said at the bar. that, in 
 the devise to the issue of John Evans Ed- 
 ings, there was a double contingency. Thei.s- 
 sue must be alive at the death of John Evans 
 Edings, and must also attain twenty-one 
 years of age, and that, although the issue 
 might have attained twenty-one years of age 
 and then died before his father, such issue 
 failed to answer the description (as it was 
 said,) and the estate never vested. I concur 
 with the counsel that the absence of either 
 circumstance is etpially available, and, if non- 
 age prevented the vesting, so would want of 
 surviving the parent. The efftnt of this lat- 
 ter circumstance seems to have been fully 
 considered in Williamson v. Rerry. Testator 
 devised his estate to trustees, in trust to j»ay 
 the rents. &c., to Thomas R. Clark*', during 
 his natural life, and from and after the death 
 of tiie said Thomas R. Clarke, in further 
 
 *299 
 trust to convey the same *to the lawful is- 
 sue of the .*:aid Tlionuis R. Clarke living at 
 his death, in fee ; and if the said Tbunias R. 
 
 Clarke should not leave any lawful is.sue at 
 the time of his death, then in further trust 
 to convey the prenuses to testator's grand- 
 son, Clement C. Moore, and to his heirs. The 
 Judges of the Circuit Court of the Uidted 
 States for the Southern Di.strict of New York 
 <-oncurred in the opinion, that, on this devise, 
 the lirst born child of Thomas R. Clarke, at 
 its birth, took a vested estate in remainder, 
 which opened to let in his other children to 
 the like estate, as they were successively 
 born. Upon other points of the case the 
 Judges were divided in opinion ; and upon 
 that divi.sion the cause was certified to the 
 Sui)reme Court of the United States. It was 
 not perhaps necessary for the Supreme Court 
 to pronounce on a question upon which the 
 circuit Judges were agree<l. Rut they com- 
 mence by declaring as follows: "It is right, 
 however, to say that we concur with the 
 learned Judges of the Circuit Court, that, un- 
 der the will of Mary Clarke, the tirst bora 
 child of Thomas R. Clarke, on its birth, took 
 a vested estate in remainder, which opened 
 to let in his other children to a like estate, 
 as they were successively born ; and that 
 their vested remainder became a fee simple 
 ai)S()lute, in the children living, on the death 
 of their father." It might here have been 
 urged, that the trustees were to convey only 
 to the lawful issue of Thomas R. Clarke liv- 
 ing at his death, and that until his death, 
 it was uncertain who would answer that de- 
 .scription ; "but the Court held, that the es- 
 tate vested immediately on the l>irth, subject 
 oidy to be divested, or defeated, if the i.s.sue 
 should not be alive at the death of the par- 
 ent. It will be remarked, that in Williamson 
 V. Rerry, as in the case under review, there 
 was a limitation over in default of issue at 
 the time specified. "This class of cases," 
 says Sir Edward Sugden, "goes on this priu- 
 ci[ile, that the gift over, in the event of the 
 devisee dying under twenty-one, sulKciently 
 showed the meaning of the testator to have 
 bcv-^n, that the first devisee should take what- 
 ever the i)arty claiming under the devise over 
 was not entitled to, which of course gave him 
 the immediate interest, sultject only to the 
 
 *300 
 
 ♦chance of its being divested on a future con- 
 tingency." Sug. Eaw of I'rop. 2!K). If. then, 
 there is a previous gift, as in Horaston's case, 
 and also in this, the tirst interest is regarded 
 !!s an exception out of the gift to the infant, 
 which takes etlect on the determination of 
 the prectMling interest; or, if there is a gift 
 over, the lirst devisee takes all to which the 
 devisee over is not entitled. In both cases 
 the Court struggle, and. as the writer states, 
 have hitherto "struggled t'tfectually to carry 
 into effect the testator's Intention." The de- 
 vise in this will is substantially to the testa- 
 tor's son for life, "and from and immediately 
 after" the death of his son, to the lawfully 
 begotten issue of his son living at the lime o.' 
 
 121
 
 *300 
 
 4 RICHARDSON'S EQUITY REl'ORTS 
 
 hi.s death, who shall live to attain twenty- 
 one years of age, &c., and if the son should 
 die without leaving issue at the time of his 
 death, who should attain twenty-one years of 
 age, then to the right heirs of tlie testator 
 then living, &e. The manifest ohject of the 
 testator was to vest the fee in the issue of 
 his son. The preceding interest, as in Boras- 
 ton's case, was merely an exception out of 
 the gift to them. On the determination of 
 that preceding interest, or, in the stronger 
 and more emphatic language of the will, 
 "from immediately after" the death of his son, 
 the devise to the issue took effect. But if the 
 issue should not be alive at the death of the 
 son, or, being alive, should not attain twenty- 
 one years of age, "the said real and personal 
 property described in that clause of his will," 
 is devised and bequeathed to his right heirs 
 then living. WJiat could the right heirs of 
 the testator then living claim? Certainly no 
 more than the real and personal property 
 described in that clause of the will. All not 
 given over to them is taken, according to the 
 authorities, by the first devisees in fee. The 
 will of the testator is then complete. The 
 son enjoys his life estate. His issue contin- 
 ue in the enjoyment of it until, on arriving 
 at twenty-one years of age, in the language 
 of Williamson v. Berry, "their vested remain- 
 der became a fee simple absolute." But luitil 
 that time their vested estate was subject to 
 defeasance by their death under twenty-one 
 years of age. Upon the happening of that 
 contingency, the estate, real and personal — 
 
 ■=301 
 *the plantation and slaves — passed to the 
 right heirs of the testator then alive. It is 
 this plan or purpose, so natural in irself, 
 and, it may be added, so apparent in the in- 
 strument, which the Courts have endeavored 
 to carry into effect, and which is declared by 
 the circuit decree. On the other hand, it 
 remains only to say that, if the estate was 
 not vested, it is not only uncertain as to 
 what should become of the interim profits be- 
 tween the death of John Evans Edings, and 
 the arrival of his sons to twenty-one years of 
 age, but it would become a grave question 
 whether the whole purpose of the testator in 
 the provision for his son's issue would not 
 be effectually frustrated. 
 The appeal is dismissed. 
 
 WARDLAW and DARGAN, CC, con- 
 curred. 
 Appeal dismissed. 
 
 4 Rich. tq. 301 
 
 Ex parte CAROLINE UEDDES, Executrix of 
 
 G. C. Geddes et al. 
 
 (Charleston. Jan. Term, 1852.) 
 
 [Partition <®=:>10.3.] 
 
 On a sale of land, for partition, in which 
 the wife has a share, the husband may become 
 
 the purchaser, and thereby become invested, in 
 his own right, witii the title of all the co-ten- 
 ants, including his wife. 
 
 [Ed. Note. — For other cases, see Partition, 
 Cent. Dig. § 339; Dec. Dig. <©=»103.] 
 
 [Husband and Wife <S=>9.] 
 
 At a sale of land, by the master, for parti- 
 tion, of which wife owned one moiety, husband 
 became purchaser; he paid the share of the 
 proceeds of the co-tenant in money, and gave 
 the master the joint receipt of himself and wife 
 for her share of the proceeds: — Held, that hus- 
 band was thus invested, iu his own right, with 
 the title, and that upon his death wife was not 
 entitled to the moiety which had been hers. 
 
 [Ed. Note. — For other cases, see Husband and 
 Wife, Cent. Dig. § 34; Dec. Dig. (©=9.] 
 
 [Husband and Wife <®=5lO.] 
 
 A wife by joining her husband in a receipt 
 for money, the proceeds of the sale of her in- 
 heritance, waives her equity in such proceeds ; 
 and upon the money received by the husband, 
 his marital rights attach. 
 
 I Ed. Note.— Cited in Clark v. Smith, 13 S. 
 C. 59(5. 
 
 For other cases, see Husband and Wife, Cent. 
 Dig. § 43; Dec. Dig. <©==>10.1 
 
 [Partition <S=>109.1 
 
 [Cited iu Scaife v. Thomson, 15 S. C. 356, 
 to the point that on a inu'chase of land by a 
 tenant in common at partition sale title to his 
 original share is not derived from tlie sale.] 
 
 [Ed. Note. — For other cases, see l*artition. 
 Cent. Dig. S§ 375-397 ; Dec. Dig. <®=>109.] 
 
 [This case is also cited in Barnes v. Cunning- 
 ham, 9 Rich. Eq. 47S, as to waiver of dow- 
 er rights.] 
 
 Before Dargau, Ch., at Charleston, March, 
 1850. 
 
 A petition was filed by Mrs. Geddes and a 
 creditor of the late Mr. Geddes, setting forth 
 an account of his debts and assets, and pray- 
 ing a sale and distribution of the estate un- 
 der the direction of the Court. On this pe- 
 
 *302 
 tition, an order was granted for a sale, *and 
 Mr. Gray, one of the masters, was directed 
 to take an account, and give notice to credi- 
 tors. A sale was made, and the account tak- 
 en, and by his report, dated 4th March, 1850, 
 Mr. Gray found the amount of the debts and 
 assets. A lot in Rutledge-street gives rise to 
 this discussion as to which he found, as fol- 
 lows: 
 
 "There is also a vacant lot of laud belong- 
 ing to the estate in Montague-street, which 
 remains unsold, and which is supposed to be 
 worth about eight hundred dollars, which I 
 submit ought to be sold for payment of the 
 debts. 
 
 "Besides these, there is a lot of land, No. 
 16 Rutledge-street, which was sold under a 
 decree of this Court, for partition between 
 Mrs. Geddes and Mrs. Milne, in February, 
 1840; Gilbert C. Geddes was set down as 
 the purchaser, but he paid only Mrs. Milne's 
 share, or half of the nett sales, to wit: Three 
 thousand nine hundred and fifteen dollars, 
 37-100, and gave master Laurens, his, and 
 Mrs. Geddes joint receipt for the other half, 
 taking his title for the property ; but as the 
 
 11^2 
 
 (gs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 EX PARTE GEDDES 
 
 »305 
 
 lot roniaiiis unflisposed of by Mr. GtMldes, I 
 sulmiit that liis undivided half <»r inten'st in 
 it (luiiht to be sold for the benefit of the 
 i-reditnrs. 
 
 ■"Tlie scliodiile annexed, marked A. will 
 show the partitulars of the sal< '" tin- plan- 
 tation and nej^roes included in i.ie inortpi^e 
 held by the Hank of the State, which were 
 sold by uie under the decree." 
 
 To this report Mr. Meninun;;er excepted 
 that the whole of the Kntledfre-.street lot was 
 assets to pay the debts of testator, instead of 
 one half, and that the master sluuild have I 
 so reported. 
 
 The cause came before Chancellor Dargan, 
 who made the following decree: 
 
 Dargan, Ch. This ca.se comes up on the 
 master's report and exceptions. The part 
 of the reitort which is the suliject of contro- 
 ver.sy, relates to the lot of land No. 1«5 Hut- 
 ledge-street. The Commis.sioner reports that 
 this lot was "sold under a decree of this 
 Court for partition between Mrs. (Jeddes and 
 
 *303 
 Mrs. Milue in *February, 1S40. Gilbert C. 
 Geddes was set down as the purchaser, but 
 he paid only Mrs. Milne's share, or half of 
 the nett sales, to wit. three thousand nine 
 hundred and llfteen dollars, .'JT-KIO. and gave 
 master Laurens his and Mrs. (Jeddes. joint 
 receipt for the other half, taking his title for 
 the property. But as the lot remains undis- 
 posed of by Mr. Geddes, I submit that his 
 undivided half or interest in it ought to be 
 sold for the benefit of cretlitors." 
 
 When the wife's land is sold for the pur- 
 po.se of partition under a decree of the Court, 
 she l>ecomes thereby divested of her title and 
 inheritance in the land, and she bec()nies the 
 enuitable owner of the money or fund arising 
 from the sale, or of her just proiiortion of it. 
 Her title or interest ceases in the laud, and 
 attaches upon the money. I perceive no rea- 
 son why the husband should not become the 
 purchaser at such a sale as well as a stran- 
 ger. And when he obtains the master's title, 
 the land is his property, clear of any title 
 or claim on the part of the wife. Over the 
 l)urchase money, however, he has no control 
 farther than is permitted by the wife, or 
 authorized by an order of the Court. 
 
 The e»|nities of the wife in the purchase 
 money arising from the sale of her inheritance 
 under circumstances like these, has been 
 A'ery clearly defined by a series of diK-isions 
 of our own Courts. The master has no right 
 to pay it to the husband on his own receipt, 
 i'xcept under an order of the Court. If he 
 does, the payment is no discharge to him as 
 against the claim of the wife; or she may 
 ■elect to set up her claim by bill against the 
 husband himself, as having illegally i)ossess- 
 ed himself of her funds. lint she may 
 waive her equity by joining with her hus- 
 band in a receipt, or doing some eiiually sig- 
 nificant and unefpiivocal act. If she does 
 this, the marital rights attach, as upon per- 
 
 sonalty, and she cannot afterwards recall her 
 eMuital)le claim. The rationale of these prin- 
 ciples is this: The land was her inheritance. 
 The sale does not in this Court, ipso facto, 
 convert it into personalty, but it retains in 
 e<piity Its character of real estate. She has 
 a right to a .settlement. As before the sale 
 under the decree, the husband could not sell 
 
 *304 
 her inheritance without her ♦concurrence and 
 formal reiuuiciation as prescribed by law; 
 so after the sale, no act of the husband, 
 alone, can deprive her of this right, of which 
 she cannot be tlivested excei)t by a decree of 
 the Court, or some formal reiuuiciation of 
 her equity in the fund. If the husband were 
 permitted to give r(>ceipts for the wife's 
 funds arising from the sale of her land, it is 
 obvious she might be deprived of her equita- 
 ble rights without notice of the proceeding, 
 or opportuiuty of asserting them. Wardlaw 
 v. (Jray, 12 Hill, Eq. 044; Yeldell v. Quarles, 
 Dud. E<i. ~>~}; IGeiger v. Geiger) Cheves Eq. 
 1G12; Ex parte Mobley, 2 Rich. Eq. 56; Daniel. 
 V. Daniel. U Rich. Eq. 11") [44 Am. Doc. 244]. 
 To which may be added the unrei>orted cases 
 of (iardner v. Ilorton. Columbia, May Term. 
 lS4!t; Daveni>ort v. Davenport, Columbia. De- 
 cemiier Term, 1.S41). 
 
 If Mrs. (Jeddes had been a femme sole at 
 the sale of her inheritance for partition, and 
 had herself become the purchaser at the mas- 
 ter's sale, -slie would have bought her own 
 share, and the moiety of her co-tenant in 
 common. The case reduced to its essence 
 then, would be. that she was the purcha.ser 
 from herself and her sister. Hut a person 
 cannot i)urchase from him.self. The result 
 of the proceeding would have l>«vn simjily 
 to blend the title of her co-tenant with her 
 own. And I incline to the opinion, that In 
 any question which might have arisen in the 
 ca.se supposed, in which the distinction would 
 have been important, the title of Mrs. Geddes 
 to her own moiety would be referred to its 
 original source, and would not have been 
 considered to be derived from the proceed- 
 ings in partition. This rule would ai»ply, 
 because in such a case, as to her moiety, she 
 was seized of the fee before the sale, and 
 the sale could give her no more. There 
 woidd be no change of title whatever; the 
 result would be the sanie. as if her co-tenant, 
 without any sale for partition under decree, 
 had conveyed her share to Mrs. Geddes. 
 
 Hut the case is entirely different when the 
 husband is the purchaser. He purchases in 
 another right than that of his wife. He pur- 
 chases in his own right. The title is chang- 
 ed. Hefore the sale he held as husband: aft- 
 erwanls as a purch:iser from the wife. 
 
 ♦305 
 ♦Surely the Court of Equity, in proceedings 
 for partition, can. when the proper forms are 
 observed, convey the wife's lands to the hus- 
 band for a con.sideration. That con.sidera- 
 tiou is the purchase money to which the 
 
 123
 
 *305 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 wife's equity attaches. It is for herself to 
 determine whether she will waive it. It is 
 a matter for her own private discretion with 
 which, if she be of age, the Court will not 
 interfere. It would only be disposing of her 
 equity in the purchase money, as she might 
 have disposed of her legal estate in the lands, 
 by joining with her husband in a conveyance 
 under the proper legal forms. 
 
 The conclusion and judgment of the Court 
 is, that the lot in Rutledge-street is the prop- 
 erty of the estate of Gilbert C. Geddes, and 
 that Caroline Geddes has no interest therein 
 except her dower. 
 
 From this decree, Mrs. Geddes appealed, 
 on the grounds: 
 
 1. That she was seized of an undivided 
 moiety of the Rutledge-street lot, and her 
 title has never been divested. 
 
 2. That the sale for partition is only a 
 conversion as far as is necessary for the pur- 
 pose of partition; and the conveyance of the 
 other moiety to Mr. Geddes was all that the 
 partition was designed to effect. 
 
 3. That in the bill for partition, she and 
 her husband were joint complainants, and 
 the decree treats their interests as joint; and- 
 
 124 
 
 nothing in a bill so framed could be done to 
 give her husband an interest against her 
 rights. 
 
 Lesesne, Petigru, for apjbellants, cited Mes- 
 servey v. Barelli, 2 Hill, Ch. 567 ; Lucas v. 
 Jacobs, 1 Beav. 436; 4 Mylne & Cr. 389; 
 Graydon v. Graydon, McM. Eq. 63; lunes v. 
 Jackson, 16 Ves. 367; 6 Dow, 17; Pow. on 
 Mortg. 756; Wightman v. Vaulk, Dud. Eq. 
 212; Ackroyd v. Smithson, 1 Bro. C. C. 503; 
 Tobey v. Barber, 5 Johns. R. 68; Edgerton 
 V. Muse, Dud. Eq. 179. 
 
 McCrady, contra, Chev. Eq. 162; Young v. 
 Teague, Bail. Eq. 13; McNish v. Guerard, 4 
 Strob. Eq. 66. 
 
 *306 
 
 *PER CURIAM. This Court is entirely 
 satisfied with the decree of the Chancellor, 
 which is in conformity with the numerous 
 decisions in this Court. It is therefore or- 
 dered that the same be affirmed, and the ai>- 
 peal dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN and 
 WARDLAW, CC, concurring. 
 Decree affirmed.
 
 CASES IN EQUITY 
 
 ARGUEn AND DKTERMINEI) IX THE 
 
 COURT OF APPEALS 
 
 AT COLUMBIA. SOUTH CAROLLXA— MAY TERM, 1852. 
 
 Chaxcicllors Prkskxt. 
 
 Hon. job JOITXSTON, 
 " B. F. DT'NKIX. 
 
 G. W. DAKfJAX. 
 - F. H. WARD LAW. 
 
 4 Rich. Eq. *307 
 
 ♦REUBEX DEXXIS et al. v. JOIIX DKXXIS. 
 
 •Tun. 
 
 (Columbia. May Term. 1S,"2.) 
 
 [Reformation of Instruments <©=»'5-.] 
 
 Bill to reform a deed of yitt of negroes, 
 more tliaii tliirty years old, to M. D. "her heirs, 
 executors and administrators:" it was oontended 
 that the dou.ir, who was dead, intended to sive 
 only a life estate tu M. 1)., with remainder to 
 her children: whereas, by the fraud or mistake 
 of the pensman, an ab.solute estate was given to 
 her. Bill dismissed. 
 
 [F]d. Xote. — For other cases, see Reformation 
 of Instruments, Cent. Dijr. § 120: Dec. Dig. 
 <g=>.32.1 
 
 Before Wardlaw, Ch., at York, June, 1S51. 
 
 Wardlaw, Ch. The plaintiffs are some of 
 the children antl sons-in-law of John Dennis, 
 sen., and Mary his wife, and prosecute 
 against the defendant, a son and principal 
 
 *308 
 legatee of .said *.7()hn Dennis, sen., a claim 
 to reform, according to the supposed inten- 
 tion of the i)arties, a deed from .Tolin Chesor 
 and Anna his wife, to the said .Mary Dennis, 
 a sister of the said Anna Chesor. 
 
 The said John Chesor and Anna his wife, 
 by deed, dated March 1, IMS, in considera- 
 tion of love and affection to Mary Dennis, 
 wife of John Di'inns, gave and granted all 
 their goods and chattels, consisting princi|)al- 
 ly of three slaves. Hannah and her two chil- 
 dren, Harry and Sarah, "to hold all the said 
 goods and <hattels. with the thre»' aliove 
 named negroes to her, the said Mary Den- 
 nis, and wife of John Dennis, as aforesaid, 
 her heirs, executors, or administrators from 
 
 henceforth." Simultaneously andt on the 
 same paper, John Dennis and .Mary his \vife. 
 agreed under seal, as a condition of the 
 deed, that they would "supptirt and main- 
 tain the above named Anna Chesor, with 
 her issue begotten by her body, in meat, 
 drink, and clothing, and treat her with her 
 issue in a decent manner during her natural 
 life." The deed and counter-part were 
 drawn by George Ross, a farmer of high 
 character, now deceased : attested by said 
 Ceorge Ross and by Thomas H. Smith ; 
 proved by Smith before a magis«^rate. May 
 9, 1S18; and recorded in the othce of the 
 register of mesne conveyances of York dis- 
 trict, (in which di-strict all the parties re- 
 sided.) May 9, 1818, and in the ottice of the 
 Secretary of State, May 2. 1827. 
 
 Smith, who was examined on this trial, 
 testified that a draft of another deed was 
 presented to John Chesor and wife which 
 she refused to execute, because it made John 
 Dennis the donee, and that two or three 
 hours afterwards George Ross drew the deed 
 whicli was executed. Tiiat to the latter, 
 John DeiMiis at first made objection, but 
 was (piieted by George Ross's telling him, 
 "you need not make a fuss, as you are 
 Mary's heir, and this is as good to you as 
 the tirst deed"— that this remark of Ross 
 was made while they were standing near 
 the steps of the door, within bearing of 
 John and Anmt Chesor, who were sitting at 
 a table in the shed a few feet off. and im- 
 mediately before the deed was read and 
 signinl. 
 
 €=3For other cases see same topic and KEY-NUiliJEK ia all Kuy-Numbered Digests and Indexes 
 
 125
 
 508 
 
 4 RICHARDSONS EQUITI KEl'tJKTfci 
 
 Karen Smith, a daiiLrhter of John and 
 *309 
 Mary Dennis, who was *at first a defend- 
 ant in the cause, but as to whom the bill 
 was dismissed, and who had assigned her 
 interest in the subject of controversy to her 
 son, Elias Davidson, not a party, was ad- 
 mitted as a witness. She testified that Anna 
 Chesor would not sign the first draft making 
 the property over to John Dennis, because 
 she intended it for INIary Dennis and her 
 children — that George Ross drew and read to 
 her the one executed, which was to Mary 
 Dennis and her children — that John Dennis 
 was dissatisfied because the property was 
 not given to him, and George Ross told him 
 not to mind it — that Anna Chesor said John 
 Dennis might have the use of the property 
 while his wife lived, and at her death to go 
 to her children — that George Ross said 
 'heirs' was the proper way of putting it 
 down, as Mary's children were her heirs — 
 that John and Anna Chesor went from the 
 shed where the deed was signed into the 
 hall adjoining, with an open door between, 
 when Ross was talking to Dennis. James 
 Curry, the widowed husband of a pre-de- 
 ceased daughter of John and Mary Dennis, 
 testified that John and Anna Chesor and 
 Mary Dennis refused to sign the first draft, 
 because it was given up that the deed should 
 he to Mary Dennis and her heirs — that John 
 Dennis was dissatisfied with the second 
 draft, until Ross took him aside and said it 
 was immaterial, as he could have the use 
 of the property as long as his wife lived — 
 that the parties wanted the deed made to 
 Mary Dennis and heirs, and Ross told them 
 the effect of this draught was that the prop- 
 erty would belong to INIary Dennis and the 
 heirs of her body or children. These latter 
 two witnesses also testified to declarations 
 of John Dennis and of George Ross frequent- 
 ly, and until a recent date repeated that the 
 property would belong to the children of 
 Mary Dennis after her death. It was also 
 proved for the plaiutifC that John Chesor 
 and Anna his wife, and Mary Dennis, were 
 illiterate, and that the former two were of 
 weak minds. 
 
 John and Anna Chesor have been dead 
 many years. The latter, from the time of 
 the execution of said deed until her death, 
 lived in the house of John Dennis, and 
 was maintained by him. 
 *310 
 
 *In 1825, John Dennis exchanged the 
 negroes Hannah and George, the latter born 
 after the execution of the deed, with Robert 
 Latta, for two other slaves. In the bills of 
 sale made by Dennis and Latta each to the 
 other, their wives respectively joined. John 
 Dennis treated the other slaves named in 
 the deed as his own. 
 
 John Dennis died October 10, 1850, leav- 
 ing of force his will, without date, executed 
 October 10, 1845, whereof his wife Mary 
 
 126 
 
 and his son, the defendant, were appointed 
 executors; and whereby he bequeathed two 
 slaves and some other property to his wife 
 for life, and all the rest of his estate, in- 
 cluding by name the negroes now in contro- 
 versy, to the defendant and the heirs of his 
 body living at his death. Testator also di- 
 rects that his wife Mary and his son John, 
 the defendant, at his death pay all his just 
 del its. Defendant has qualified as executor. 
 
 Mary Dennis never qualified as executrix, 
 and died in the course of the present year, 
 after the first of March. She was intestate, 
 and defendant has become administrator of 
 her goods and credits. 
 
 The bill alleges that it was the intention 
 of the donors and of Mary Dennis, in the 
 execution of the deed, that the property 
 should be given to the sole and separate use 
 of said Mary Dennis for life, and after her 
 death to her children ; and that the miscar- 
 riage of this intention, conceding that, ac- 
 cording to the terms actually emi)loyed in 
 the instrument, the marital rights of John 
 Dennis attached should be corrected by the 
 Court, whether it arose from the fraud and 
 collusion of the pensman and John Dennis, 
 or from the mistake of the pensman and the 
 parties, as to the legal effect of the words 
 of limitation. 
 
 The Chancellor was much pressed to order 
 an issue at law in the case, particularly on 
 the question of fraud. The pretence of fraud 
 in the matter proceeds only on the conjec- 
 ture, that the donors did not hear the re- 
 marks by which George Ross reconciled 
 John Dennis to the deed. It would be an 
 abuse of discretion to protract, upon such 
 slight ground, the decision of the question. 
 
 *311 
 
 *The plaintiffs are mere volunteers, who 
 seek to reform a deed after the lapse of 
 thirty years, in the progress of which the 
 donors, donees and scrivener have all died, 
 and they have no claim to vex another fo- 
 rum with their vague imputations upon the 
 character of their ancestor and his trusted 
 friend. The suggestion of fraud is unsus- 
 tained by proof. 
 
 The plaintiffs have as little standing on 
 the ground of mistake. The discrepancies in 
 the statements of the three witnesses, who 
 testify as to the declarations and conduct of 
 the parties preeediug and attending the ex- 
 ecution of the deed, strikingly illustrate the 
 wisdom of the rule, that parol testimony is 
 inadmissible to vary or explain the terms of a 
 written instrument. It is probable that all 
 concerned in the concoction and execution of 
 the deeu mistook the legal effect of the words 
 of limitation employed, but it was a mistake 
 arising altogether from overweening conceit 
 of themselves, or rash neglect in advising 
 with the skilful. Those who will ignorantly 
 and rashly employ technical terms of the 
 law must submit to the consequence of hav- 
 ing the terms technically construed. If re-
 
 DENNIS V. DENNIS 
 
 »3U 
 
 lief be afforded in tliis ease, the (^mrt imist 
 undertalie to correct all the luiscarriajjes of 
 niidacioiis i^jnorance in coiivi'vancin;.'. We 
 iiii^'ht thus auiuire a with' tit-Id of jurisdic- 
 tion and husiiu'ss. An iiiustratinn niiyht l)e 
 furnisiied from the terms of the devise in 
 Jolni Keinds's will to tiie defendant; but 
 I forbear. After uur own decisions in West- 
 brook V. llarlieson, li McC. Kq. Ill', and Ilyan 
 V. (jJoodwyn, Mc.M. Kci. 4.")1, it would be ridicu- 
 b»us excess to extend this reasoninj;. It is 
 ordered and decreed, that set niu< h of the liill 
 as seeks to reform the deed nf .loiin and Anna 
 Chesor be <lisuiissed. 
 
 From the statemiMit «>f tlie bill. ;ilIliou;.'h 
 there is no prayer to tliis i'ITe<t. I suppose 
 the plaintilTs desire an account of tiie estate 
 of .\Iary I tennis from the defendant as ad- 
 nunistrator. The objection in tiie answer, 
 that this object is iirematurely .sought, is 
 well taken: and the suj,'i;estion. made also in 
 the answer, that whenever this account lie 
 taken, tlie legacy to Mary Dennis must con- 
 tribute rateably with the lepicy to John 
 
 *312 
 Deimis for the pay*m*'nt of the debts of the 
 testator, .lohn Kennls, is .•«)und and proper. 
 Nevertlu'le.ss, tlie bill in this respect is re- 
 tained ; and at the expiration of the year an 
 order of reft-rence may be applied for. I^et 
 the plaintills pay the costs. 
 
 The complainants appealed, t)u the follow- 
 ing; ^.'rounds: 
 
 1. r.ecaiise it was most clearly proved on 
 the hearing of this c-ase, that the real in- 
 tention of all the parties to the deed or con- 
 tract of the 1st of March, ISIS. was to .secure 
 the nejiroes then conveyed, to Mary Dennis 
 and her children, and to them oidy, and the 
 Chancellor should therefore have ordered the 
 deed to be so reformed as to carry that In- 
 tention into effect. 
 
 'J. liecause there was either a ndstake or 
 imposition on the part of (Jeorj^e Ross in 
 <lra\vin>; the deed of 1st March. IMS, which 
 ;:ives this Court power to reftirm the deed, 
 so as to carry the real intention of the par- 
 ties to that deed into effect. 
 
 .'{. Kecause John Dennis, .sen., uniforndy ad- 
 ndtted that he held these ne;;roes as a trus- 
 tee of his wife, and his acts all went to show- 
 that he adnntted that the ne;.'roes would jro 
 to his children after the death of his wife; 
 which acts and a<lnnssions for so ^reat a 
 len;:th (»f time jiave character to the use and 
 liossession which John Deiuds, sen., had of 
 the said ne^'roes, and dejirived him of the 
 power to disj»ose of them by will, nor <lid he 
 use them as his own, as the Chancellor has 
 assumed. 
 
 4. I^«'cause tlie deetl l>y its terms, and John 
 Dennis, seii'rs. lon>; possession as trustee of 
 bis wife, enured to the benetit of his children, 
 and deprived him of the power to dispo.xt' 
 the negroes by will. 
 
 ."5. Kecause his Honor should have ordered 
 the issue prayed by the complainants as to 
 
 I the iiuesti«in of fraud, imposition, or mistake, 
 in the deed of 1st March, ISlb, from John and 
 Anna Chesor. 
 
 Smitli, for the motion. 
 , contra. 
 
 The opinion of the Court was delivered by 
 
 •313 
 
 •WAKDI.AW. Ch. Where the parties to an 
 ajireemcnt have expressed their purposes and 
 stipulations in writing;, a most .salutary rule 
 of law inhibits the ailmission of parol tes- 
 timony to vary or explain the written iustru- 
 i merit. As defensive iMjuity, for «'xample, in 
 resisting the specific execution of a contract. 
 Courts of Kcjuity p»'rmit extrinsic evidenct; 
 of the fact, tliat the real contract of the jiar- 
 ties lias not i»een truly rethned to writing, 
 as of any other fact that makes it uncon- 
 scientious to enftirce tlie contract in its 
 written form. But it is not clear that a 
 plaintiff is ever allowed to ;;ive evidence of 
 mistake in a d«»ed or other writing, for the 
 purpose of reforming the instrument. Such 
 relief is at least to be extended with the ut- 
 most caution. The proof of The mistake 
 should be uni|iU'stionable, and the parties to 
 the mistjike should be also parties to the 
 suit. Mayo v. Feaster, -J McC. lj|. Hi*. 
 
 In the case before us, the parties were 
 probably ij,'norant of the effect of the terms 
 of limitation employed by them, but there is 
 no proof of mistake. No word was inserted 
 in the deed nor omitted from it, not intention- 
 ally inserted or omitted. If we were willing 
 to reform the deed, it would be imiKtssible to 
 ascertain from the testimony the terms and 
 particulars in which it should be i-eformed. 
 We may infer that there has been miscar- 
 riajre in an attempt to Ijniit personalty, a 
 matter which fre«iuently battles tlie skill of 
 the exiXTt. but we ctinnot learn from the 
 testimony what were the precise intentions 
 of the parties. 
 
 It is fair to conclude, that whatever jiiay 
 have been the original intentions (»f the ])ar- 
 ties, they aajuiesced in the actual operation 
 of the deed. It was competent for them to 
 cure error by acquiescence. John Chesor, the 
 person who has most muse to complain of 
 the mistlirection of his bounty, has made no 
 clamor. It would be surely unsafe to look 
 back throutrh thirty years for tli«' original 
 wishes of the parties, and force all their sub- 
 secpient acts into conformity to these wishes. 
 
 It may be gravely doubted whether a deed 
 could ever be reformed after the death of 
 
 ♦314 
 the grantor. I apprehend that where 'a mis- 
 take should be corrected, the Court would not 
 undertake to reform the deed b.v the personal 
 act of a Chancellor or a master, but would, 
 by attachment or other process, comind the 
 grantor to exe<ute an amended <leed. Hut we 
 have no power over the deceased. 
 
 Ciranting, however, that the heirs of a 
 
 127
 
 *314 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 deceased grantor might be compelled to re- 
 form a deed as to realty, and his personal rep- 
 resentatives be compelled to reform a deed 
 as to personalty, In the present case, the 
 representatives of John and Anna Chesor 
 are no parties to the suit. The defendant 
 in his answer, operating in this particular 
 as a demurrer-, objects to the lack of these 
 parties. 
 
 The statement in the third ground of ap- 
 peal, that John Dennis acknowledged himself 
 a trustee for his children, is not suggested 
 in the pleadings, nor supported by proof. 
 
 Other considerations might be presented, 
 but in any view we can take of this case, we 
 think the plaintiffs are not entitled to relief. 
 
 It is ordered and decreed that the appeal 
 be dismissed, and the decree be affirmed. 
 
 JOHNSTON, DUNKIN and DARGAN, CC, 
 concurred. 
 
 Appeal dismissed. 
 
 4 Rich. tq. 314 
 
 E. J. HIGGINB'OTTOM v. WM. II. PEYTON, 
 
 Adm'r. et al. 
 
 W. H. THOMSON, Ord'y., v. SAME. 
 
 (Columbia. May Term, 1852.) 
 
 [Costs <S=>T.'>.] 
 
 Wlitne all the complainant's claims are sub- 
 stantially sustained, and the defendants are 
 made liable in a definite amount, it is not neces- 
 sary to make an order for costs, for these fol- 
 low the decree, and are payable by the parties 
 who are liable for the sum decreed to be due. 
 
 [Ed. Note. — Cited in Brown v. Brown, 6 Rich. 
 Eq. 360; Bratton v. jNIassey, 18 S. C. 5G0; 
 Cooke V. Poole, 26 S. C. 326, 2 S. E. 609. 
 
 For other cases, see Costs, Cent. Dig. § 305 ; 
 Dec. Dig. <©=>73.] 
 
 Before Dargan, Ch., at Barnwell, February, 
 1852. 
 
 This w^as an appeal by the complainant, E. 
 *315 
 J. Higginbottom, *froin an order directing 
 the costs to be paid out of funds of the estates 
 of James Higginbottom and Aaron Gillett, 
 respectively. 
 
 J. T. Aldrich, for appellant. 
 Bauskett, contra. 
 
 The opinion of the Court was delivered by 
 
 DUNKIN, Ch. The leading object of this 
 litigation was to obtain an account of the 
 administration of the defendant, W. H. Pey- 
 ton, on the estate of James Higginbottom, 
 deceased. A final report was submitted by 
 the commissioner at February sittings, 1851. 
 In calculating interest, two modes were sub- 
 mitted by the report, the former of which 
 was recommended by the commissioner, but 
 the latter adopted by the Court. 
 
 All the other exceptions of the adminis- 
 trator were overruled. By this report a 
 large amount was ascertained to be due by 
 the administrator for moneys received by 
 
 him and not disbursed. His sureties were 
 also parties defendants, and demurred to the 
 bill on account of a defect in the bond. Their 
 demurrer was overruled. On a collateral 
 matter arising out of a controversy between 
 Lucy J. Enicks, formerly the wife of George 
 W. Collins, deceased, and one John F. Pey- 
 ton, the administrator of Collins, the com- 
 missioner had reported against Mrs. Enicks ; 
 and, on exception thereto, the exception was 
 sustained and the report ordered to be re- 
 formed. The report being reformed, was 
 confirmed by the Chancellor in February, 
 1852. At the same time an order was made 
 for the distribution of the fund ascertained 
 to be due by Wm. H. Peyton and his sure- 
 ties, under the report of 1851, among the 
 parties entitled; and also an order for the 
 connuissioner to pay Lucy J. Enicks the sum 
 which had been claimed by John F. Peyton, 
 administrator of Collins, deceased. The 
 Chancellor being given to understand that an 
 order was necessary as to costs, and sup- 
 posing, as he states to this Court, that he 
 was oidy carrying out the previous decree, 
 ordered the costs to be paid out of the es- 
 tate of James Higginbottom and of Aaron 
 Gillett, respectively. The complainant, E. 
 J. Higginbottom, appealed from this order. 
 *316 
 
 *The general rule is, that where the de- 
 cree is silent as to costs, costs follow the 
 decree. But, as stated by the Court in Muse 
 V. Peay, Dud. Eq. 236, and repeated in Chap- 
 lin V. Jenkins, 2 Strob. Eq. 100, where vari- 
 ous claims are made, some of which ai'e al- 
 lowed and some rejected, the rule is inap- 
 plicable. But in this case all the claims of 
 the complainant, who was a daughter and 
 distributee of the intestate, were substan- 
 tially sustained. The administrator waa 
 found largely indebted, and the defence of 
 his sureties, vigorously and ably pressed, 
 was overruled; and they, as well as their 
 principal, declared liable in a definite amount 
 by the decree of 1851. It was not necessary 
 to make any order as to costs, for these fol- 
 lowed the decree, and were payable by the 
 parties who were liable for the sum decreed 
 to be due, to wit, by the administl-ator, W. 
 H. Peyton, and his sureties. 
 
 The litigation in relation to the claim of 
 Lucy J. Enicks had no connection with the 
 estate of Higginbottom, and as little with 
 that of Aaron Gillett, deceased. It was a 
 controversy between her and the administra- 
 tor and creditors of her former husband, 
 Geo. W. Collins, deceased, as to her interest 
 in the estate of her father, Elijah Gillett, de- 
 ceased. The claim of Mrs. Enicks was whol- 
 ly sustained, and that of the administrator 
 and creditors rejected, and their resistance 
 overruled. In the absence of special direc- 
 tions, the costs of Lucy J. Enicks, as well 
 as their own, should be paid by the adminis- 
 trator and creditors of Collins. 
 
 128 
 
 <g=»For other cases see same toijic aud KKY-NUMBEK iu all Key-Numbered Digests and Indexea
 
 BOULWARE V. HARRISON 
 
 *818 
 
 It may be proper to remark that this is 
 not what is commonly designated as an ai*- 
 pfiil from a dei ive for costs. Wiien* a Chan- 
 (fllor lias heard and eonsidertMl a cause, 
 tliis Court will entertain no appeal froni his 
 decision as to costs. Hut in this rase, the 
 ftTect of the decree heretofore made (Febru- 
 ary, ISol.) was to carry the costs, and any 
 further d.ecree on that suli.iect was unneces- 
 sary, and any order at \ariance with tlie de- 
 cret" would lie the result of inisapprohension. 
 
 It is ordered aiul decreed, tliat tiie decretal 
 order of Uth February, lS5l', be moditied 
 as herein expressed. 
 
 JOHNSTON, DARdAN and \VAK1»1.A\V. 
 CO., concurred. 
 Decree moditied. 
 
 4 Rich. Eq. *3I7 
 
 •BENJ. J. liOll.WAKF v. (M'TIIBERT 
 
 HARRISON and Otiiors. 
 
 (Cohnnbia. May Term, isrrj.) 
 
 [1. Pai/mcnt <£=1.M.| 
 
 riaiutift' liavinj; a money decree afiainst bus- 
 i)aud aud wife, to satisfy which tlie decree };ave 
 him tlie ri^dit to sell certain slaves settled to 
 the sole and separate use of wife, tool< husband's 
 sealed note, jiayable at a future day, tor the 
 amount of the decree, and to secure the note 
 took from husband a morti;ai;e of the same 
 slaves, aud f;ave husband antl wife a receipt 
 iu full for tile amount of the decree: husband 
 shortly afterwards died insolvent: — Held, that 
 the acCOptauce of the not" and mortf^aye was no 
 satisfaction of the decree. 
 
 [Kd. Note.— Cited in Trimmier v. Thomson, 
 10 S. C. 100: Arnold v. Bailey, i;4 S. C. 496. 
 
 B"'or other cases, see I'avmeut, Cent. Dig. § 
 28; Dec. Di;:. <S=>li4.] 
 
 [2. .Judiimcut C==>sr».">. I 
 
 That the contract between plaintiff and hus- 
 band was so far to be respected, that plaintiff 
 could not enforce his aecree until the sealed 
 note fell due. 
 
 [Ed. Note. — For other cases, ."^ee Judgment, 
 Cent, Dig. § 1571; Dec. Dig. <©=>xi>5.] 
 
 Before Wardlaw, Ch., at Fairfield, July, 
 
 IS.jl. 
 
 Wardlaw, Ch. The general object of this 
 bill, is for relief to the plaintitf, from the 
 elYect of a receipt given by him t\)r a decree 
 of tliLs Court iu his favor as e.\ecutor ; 
 when there was, in fact, no iiayment, and 
 his accejitance of another security was un- 
 der mistake. 
 
 Thomas Houlware, by his last will and 
 testament, dated March 2S, 1S,'V,>, amongst 
 other things, aitpoiuted the iilaintilT an ex- 
 ecutor thereof, and betiuealhed to his daugh- 
 ter, Sarah, then an infant and unmarried, up- 
 on her marriage or attaining twenty-one 
 years of age. the following slaves, namely: 
 rriiice. his wife, Kli/.a ami her children, Mil- 
 ly, Ailsie, Bina, Lewis and Julia, with their 
 future increase, for the sole and separate use 
 of his said daugliter, not suii.ject to the debts 
 (U- contracts of any luisband during her nat- 
 
 ural life, and at her death to her issue then 
 living, according to the statute of distribu- 
 tions; with a further contingent limitation 
 to the children of testator, if she died with- 
 out leaving issue. The testattir died in 1X42, 
 His daughter, Sarah, intermarried iu lS4.j, 
 with H. II. I'auiling. Testator was seized 
 and p<issessed of a large estate at the time 
 of his death, but he owed considerable debts, 
 for which he made no adequate provision 
 in his will. I'laintilT, iu the execution of Ids 
 trust as executor, sold .some of the estate giv- 
 en specifically to le-'atee<. and advanced 
 
 •318 
 
 ♦large sums fnmi his own funds iu pay- 
 ment of testator's deljts.— A suit accrued iu 
 this Court lietween the legatees and the ex- 
 ecutor, entitled, "Thonnis li. Ix'wls. per pro. 
 ami, v. Benjaunn Bonlware. executor, ami 
 others," to which I'auiling and wife were 
 parties; and at July sittings, 1S4G, a decree 
 was made that the devi.sees aud legatees pay 
 to the executor the .several sums ascertained 
 to l)e due to him by the connnlssicuiers re- 
 port. Including the sum of $1,001.01 from 
 I'auiling and wife: "and unless paid by the 
 first day of January next, that the said 
 lieuj. J. Boulware have leave, to raise the 
 same by the sale of such property of the sev- 
 eral legatees and devisees as may be re- 
 (pilred to pay said demands, acctudlng to the 
 sums to be paid by them respectively, as 
 specified in said report." After this decree 
 the executor retahieti possession of Mrs. 
 I'aulllng's slaves, apidying the avails of their 
 labor towards the satisfaction of her debt 
 to him, but uot much reducing the debt, as 
 the slaves, from the large uundter of children, 
 were worth little more than a support. On 
 February 1. 1S40, H. H. Paulliug gave to the 
 plaintiff his sealed note for $1,540.27, the bal- 
 ance then due by Mrs. V. under the decree, 
 with Interest from the date. i»ayable on Jan- 
 uary 1, 1854; and as a security for the same, 
 executed a mortgage to the plalntitf of the 
 slaves betiueathed to his wife, theu consisting 
 of Prince, Eliza, Biua, Lewis, Julia, Jaue, 
 Sarah, Iteubeu and Charles; aud plaintiff, 
 iu consideration thereof, gave a receipt in 
 full from raulliug aud wife, for the sum de- 
 crecHl for him against them. Mr. McCauts, 
 learned iu the law, and the conunlssloner of 
 this Court, drew the note, mortgage and re- 
 ceipt, and witnessed their executlou ; but he 
 was not called upon for any counsel as to the 
 construction of the will, or the suthciency 
 of the mortgage as a security. The arrange- 
 ment was made at the instance and for the 
 accounnodation of I'auiling. At this time 
 I'auiling was a physician In good practice; 
 but he died soon after iu April. 1S49. aud 
 his estate Is represented to be Insolvent. 
 Cuthbert Harrison, as administrator of Paul- 
 Hug, has had the negroes in possession sluce 
 Paulllng's death. 
 
 C=:3For other cases see same topic aad KEY-NUMBER in all Key-Numbered Digests aud Index«!. 
 ■i Ki( ii.E'i.— 9 ^^
 
 *319 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 *319 
 
 *It is manifest tliat the plaintiff, in the 
 change of securities for liis debt, still intend- 
 ed to preserve liis lien upon the negroes be- 
 queathed to Mrs. Paulling. If he had accept- 
 ed a security of a higher nature for his debt, 
 his debt would have been extinguished. 
 Mills V. Starr, 2 Bail. 360: If he had accept- 
 er! in payment anything which produced sat- 
 isfaction; or had accepted absolutely in sat- 
 isfaction any valuable thing not money ; he 
 would have been remediless ; but a receipt 
 is not a release ; it is susceptible of explana- 
 tion, and does not in law imply necessarily a 
 satisfaction of the whole debt. Eve v. Mose- 
 ly, 2 Strob. 20.3; Skirving ads. Sheriff, 2 
 Rice's Dig. 155. I am little disposed, in 
 most cases, to grant relief, on the ground 
 of mistake of law, for I see very dimly any 
 distinction between ignorance and mistake of 
 law ; but the present case seems to me to be 
 stronger than the cases of Lowndes v. Chis- 
 olm, 2 McC. Eq. 455 [16 Am. Dec. 667], and 
 Lawrence v. Beaubien, 2 Bail. 623 [23 Am. 
 Dec. 155], by the authority of which I am 
 bound. The plaintiff here occupies the fa- 
 vored character of a trustee. Without any 
 pretence of compromise or speculation, in 
 mere mistake, and with the professional as- 
 sistance of an officer of this Court, he has ac- 
 knowledged in writing the satisfaction of a 
 decree, contrary to the fact, and has substi- 
 tuted a lien inferior in nature, and practical- 
 ly worthless. It is easy to place the parties 
 in statu quo before the substitution. Under 
 all the circumstances, with some hesitation, I 
 have concluded to grant the plaintiff relief. 
 
 It Is ordered and decreed, that the re- 
 ceipt, mortgage and note of February 1, 1S49, 
 described in the pleadings, be cancelled, that 
 the defendant, Cuthbert Harrison, account 
 with the plaintiff for the hire of the negroes 
 of Mrs. Paulling, bound by the decree of Lew- 
 is V. Boulware. and that the plaintiff be re- 
 mitted to his original rights under said de- 
 cree. It is further ordered that the costs of 
 Harrison be paid out of the estate of Paul- 
 ling, if sufficient, otherwise out of the hire 
 in his hands ; and that the other parties 
 pay their own costs. 
 
 The defendant, Sarah Paulling, appealed, 
 on the grounds: 
 
 1. Because the receipt given by the com- 
 
 *320 
 plainant to H. H. *Paulling, was an extin- 
 guishment of the decree now sought to be 
 enforced. 
 
 2. Because the present decree is contrary 
 to law and evidence. 
 
 Boyce, for appellant. 
 Hammond, contra. 
 
 The opinion of the Court was delivered by 
 
 JOHNSTON, Ch. We are perfectly satis- 
 fied that the Chancellor should have granted 
 relief to the plaintiff, under the circumstanc- 
 es stated iu his decree: but we do not eu- 
 130 
 
 tirely concur in the measure of relief de- 
 creed by him. 
 
 It is perfectly manifest, that the decree 
 held by the plaintiff as executor, was not 
 satisfied by the security taken by him from 
 Doctor Paulling. 
 
 If he who holds a demand for money, re- 
 ceives in satisfaction a horse or a picture, 
 or any other specific chattel, this amounts to 
 payment, and is as effectual a satisfaction 
 as if the whole demand were paid in money. 
 
 And if he accepts in payment another se- 
 curity of higher grade, the demand which he 
 holds is extinguished and satisfied. 
 
 But it is plain that satisfaction in this 
 case has accrued in neither of these ways. 
 
 The receipt for money given by the plain- 
 tiff, is not conclusive where it is made to ap- 
 pear that no money was paid. The receipt 
 is nothing more than the admission of the 
 party: and if it had been proved in this case 
 that he had admitted he had received the 
 amount of his decree in money, he might 
 still prove, as he has done here, that the fact 
 was otherwise: and that he had received 
 no money. 
 
 This demand, under the decree, can be ex- 
 tinguished only by payment or a release : or 
 by proof of a contract equivalent to a re- 
 lease. 
 
 When the circumstances of this ca.^e are 
 investigated, it is palpable that the plaintiff 
 intended to give up his decree upon receiv- 
 ing a valid lien on the negroes. 
 
 *321 
 
 *The lien wliich he did receive was one 
 which Paulling, the husband, was incapable 
 of creating : for, by the very terms of the 
 will, the negroes were the sole property of 
 Mrs. Paulling, and not subject to the dis- 
 position of her husband. A plainer case of 
 mistake is seldom presented. 
 
 But we think the contract between Paul- 
 ling and the plaintiff is so far to be respected, 
 that the plaintiff is not entitled to collect 
 the money before the expiration of the in- 
 dulgence he stipulated to give. 
 
 Neither is the administrator of Paulling 
 bound to account for the hire of the negroes. 
 They constitute no part of the estate of his 
 intestate ; and he is not responsible for their 
 hire; I mean he is not responsible to the 
 plaintiff, bvit to Mrs. Paulling, the owner 
 of the property, if he received the hire. 
 
 The contract between the parties should 
 be enforced, as far as it can be: and the 
 plaintiff is then entitled to fall back upon 
 his decree, at the expiration of the credit he 
 has engaged to give, and enforce it ; so far 
 as he may need the benefit of it. 
 
 It is decreed that the administrator of 
 Doctor Paulling, do come to an account for 
 the estate of his intestate, and pay to the 
 plaintiff, on the ist of January, 1854, upon 
 his demand, the due proportion thereof, to 
 which he is entitled, in the due course of 
 administration; and that after the 1st day
 
 DOUGLASS V. BRICE 
 
 *323 
 
 of January, 1S54, tbo plaintiff be allowtnl to 
 ♦•nforce his decree, referred to by tbf ("liancel- 
 lor, for whatever balance may nMiiain due 
 him. 
 
 As the Court has not tlie pleadin^rs before 
 it, it will not undertake to (h»cide bow far 
 raullini;;'s administrator may be «'ntitled to 
 . laini whatever amount Ills estate may 
 lie uliliu'ed to pay, against the wife, for the 
 benefit of whose separate estate his contract 
 aji-tears to have been made. The Court, 
 therefore, reserves that point. 
 
 Let tlie case be remanded to the Circuit 
 Court, for furtlier proceedings unch^r the de- 
 cree as now modified. 
 
 It is also ordered that the decree be modi- 
 fied by directing the costs, so far as they 
 cannot be made out of raulling's estate, be 
 paid by the defendant, Mrs. Paulling. 
 *322 
 
 ♦Ordered that the decree, in all respects 
 except as above modified, be aliirmed. 
 
 DUNKIN and DAUGAX, CC. concurred. 
 
 WARDLAW, Ch., absent at the hearing. 
 Decree modified. 
 
 4 Rich. Eq. 322 
 JOHN DOUGLASS and Wife vt nl. v. ROB- 
 ERT BRICE et al 
 (Coluiubia. May Term, ISlii.) 
 
 [Descent and Distrihiition <g=»117.] 
 
 Negroes purchased by a son and daughter, 
 who resided with their fating- and ni:ina;;('(l his 
 plantation ami luJiiseiiold nlTairs for hini, held to 
 1)0 advanceinciits to thcin by tht' father, al- 
 though it did nut positively appear that ho knew 
 that the bills of sale had boon takon in their 
 nanii's. and althdugh, by a will inolTeotually at- 
 tested, he had attempted to boquoatli the negroes 
 t") thom. 
 
 I Ed. Note.— For other cases, see Descent and 
 Distribution, Cent. Dig. § 4:28; Doc. Dig. <S=> 
 3 17.] 
 
 \Tnists C=>M.l 
 
 Whole a parent permits a son to i)urchase 
 in his own name, no trust results to the parent; 
 the itrosumptiou is, that the purchase proceeded 
 fiom natural affection, and was intended as an 
 advancement. 
 
 [Ed. Note.— Eur other oases, see Trusts, Cent. 
 Dig. § 118; Dec, Dig. <S=38l.l 
 I Wills C=>l<»s.l 
 
 [Cited in Noble v. Burnett. 10 Rich. 517, 
 to the iMiint that a will may be sufliciont as 
 1i» devises of land and insufficient as to be- 
 (piosts of j)ersonalty.] 
 
 I Ed. Note. — For other cases, see Wills, Cent. 
 Dig. SS J4J»-Jr>8; Dec. Dig. C=»108.] 
 
 Before Wardlaw, Ch,, at Fairtiold, .July, 
 1S.-51. 
 
 Wardlaw, Ch. This bill is for an account 
 and settlement of the estate of William Brice, 
 senior. 
 
 William Brice, sen., died in May, 1S49, 
 li'aving seven children: Jane Dougla.ss, 
 lUizabeth Stevenson. James C. Brice, John 
 r.iice, William liric*', Robert Brice and .Ten- 
 
 net Brice. The estate, which indi.sputably 
 belonged to him at his death, consisted of a 
 plantation, twelve slaves, namely, Henry, 
 Sarah, Clarissa. Lige, Catharine, Charles, 
 big Sam, Ben, Raclnd, little Sam, old Fanny 
 and Darkey, stock of the plantation and 
 liousohold furniture. On March li4. 184.S, he 
 executed an instrunu-nt purporting to be his 
 last will and testament, wherein he appoint- 
 etl his .son, William, and his neplu'w, Walter 
 Brice, executors; devised his phintation to 
 his son Robert, and assumed to luNiueath. 
 besides the slavi's named above and other 
 chattels, fifteen other slaves, namely, Ntirman 
 and Winney, to his daughter Jemu't : and 
 Bob, Abbey and five cliildreu, Martin and 
 
 *323 
 Rose and their four children, to his *son 
 Robert. This will was attested by three wit- 
 nesses, «»ne of which was Walter Brice, nam- 
 ed therein as an executor. Walter Brice re- 
 nounced his executorship. William, jun., 
 made probate of the will in conunon form, 
 qualified as executor, and proc, .'tied in the 
 a<bninistratiou of the estate, until he was ar- 
 rested by a decree of the ordinary, that the 
 instrument was invalid as a testament, for 
 lack of due attestation. William afterwards 
 resigned his executorshii), and Robert re- 
 ceived a grant of the administration de bonis 
 non. 
 
 Our cases have settled that such attesta- 
 tion of a \\nll as was made of the instru- 
 ment before us, is sufficient as to devises 
 of laud, and insutticient as to be<iuests of 
 personalty, Taylor v. Taylor. 1 Rich. 531 ; 
 Henderson v. Keuner. lb. 474 ; Workman 
 v. Dominick, 3 St rob. ~jS[). Robeit therefore 
 is entitled to the plantation by devise. The 
 personalty of which the testator was pos- 
 sessed must be distributed equally amongst 
 his children, without reference to advance- 
 ments, which are not taken into the account 
 where the intestacy is not total. Snelgrove 
 V. Snelgrove, 4 Des. 274 ; Newman v. Wil- 
 bourne, 1 Hill Imp 11. 
 
 The plaintiffs claim, as subject to distri- 
 bution amongst the children of William 
 Brice, not only the estate which indisput- 
 ably belonged to him at his death, but lands, 
 slaves and other chattels of great value, 
 which the defendants hold under releases, 
 bills of sale, and by pos.session. 
 
 When William Brice purchased the plan- 
 tation in 18124, upon which he lived at the 
 time of his death, this plantation and five 
 or six slaves constituted the bulk of his es- 
 tate. His daughter Jane, and his son James, 
 respectively, married about 1818, left the 
 bojuestead and were advanced by the fa- 
 ther, as he afterwards declared, to the full 
 extent of any share he proposed to allow 
 to them in his estate. The remaining chil- 
 dren wrought diligently and successfully in 
 the affairs of the faudly — the sous in the 
 plantation, and the daughters in the house- 
 
 «£=>l'"or other cases see saiue topic aud KEY-NUMUEH iu all Key-Numbered Digests and Indexes 
 
 131
 
 *323 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 hold duties ; the father himself being of in- 
 firm health. William, jun. and John had 
 the principal management and direction of 
 
 *324 
 the plantation, selling the *crops, and re- 
 ceiving and investing the proceeds, until 
 January, 1835, when having purchased plan- 
 tations and slaves for themselves with some 
 of the proceeds of the crop of the home 
 plantation, they withdrew from the family, 
 and managed their own acquisitions. After- 
 wards Robert managed and controlled the 
 out-door concerns of the family, selling the 
 crops and purchasing property in his own 
 name and that of his sister Jennet, until 
 his father's death. In 1842 Robert pur- 
 chased a plantation for himself, and work- 
 ed thereon, in his exclusive and continued 
 possession, most of the slaves claimed by 
 him, although he still retained the superin- 
 tendence of the home place, working it with 
 slaves claimed by himself and Jennet, as 
 well as those of his father. Elizabeth in- 
 termarried with Stevenson about 1837, re- 
 ceived an advancement of four negroes and 
 some other chattels, and left the home- 
 stead ; and Jennet aftei'wards had the ex- 
 clusive management of the domestic affairs 
 of the household. 
 
 It is not important to state with fullness 
 and precision the particulars of real and 
 personal estate claimed by the sons, James, 
 William and John, for it is clear that their 
 title to this estate is perfect under the stat- 
 ute of limitations, by more than fourteen 
 years of adverse possession, before the death 
 of their father, without any claim whatever 
 on the part of the father. The bill proceeds 
 upon the notion, that although the legal ti- 
 tle to this estate by conveyances and bills 
 of sale may be in the sons respectively, yet 
 as the estate was acquired from the means 
 of the father — the proceeds of his plantation 
 — a trust in the estate so acquired, results 
 to the father and to his heirs. But the pre- 
 sumption of a trust is rebutted, where in 
 such case it is a parent, who purchases in 
 the name of a son, or which is the same 
 thing, allows the son so to purchase ; and 
 the presumption is that the purchase pro- 
 ceeds from the motive of natural' affection 
 in the parent, and is intended as an advance- 
 ment to the child. Story Eq. § 1202-3. In 
 this case the advancements are not to be 
 brought into hotch-pot, as the father died 
 testate to some extent. 
 
 It is equally clear that Robert Brice is 
 *325 
 protected in his title by *the statute of limi- 
 tations to so many of the slaves as he held 
 in adverse possession, at his separate plan- 
 tation, for more than four years before his 
 father's death. His title to this separate 
 plantation — the Rocky Creek place — is near- 
 ly as strong. It is true that he did not have 
 adverse possession of this place for the full 
 statutory term of ten years; but he pur- 
 
 132 
 
 chased and settled it a year or more before 
 the executicfti of his father's will, which 
 makes no mention of it ; and we do not 
 hear at any time of any claim to it on the 
 part of the father. It is plain tha.t this pur- 
 chase was made with the consent and ap- 
 probation of the father, especially when we 
 consider the whole course of his advance- 
 ments. One witness testifies, that on one 
 occasion, several years before his father's 
 death, he heard Robert Brice say that we, 
 (afterwards naming his father, his brothers, 
 John and William, and himself.) shall make 
 100 bags of cotton this year; and it is ar- 
 gued that this is proof of Robert's admission 
 that they worked in common, and that he 
 had no separate estate. The remark, as 
 sworn to, is quite too equivocal and fiimsy 
 to authorize the deduction. 
 
 The main controversy in the case is, 
 whether certain slaves claimed by Robert 
 and Jennet, severally, belonged to them or 
 to their father, at the time of his death. 
 Twelve slaves, which have been already 
 named, are all which have been set down in 
 the inventory as belonging to the father's 
 estate. Fifteen others, also heretofore nam- 
 ed, are mentioned in ineffectual bequests by 
 the father to Robert and Jennet, resp'^ctive- 
 ly. Of these fifteen, Winny had been 80ld ; 
 to Bob, Ibby and four of her children 'tfar- 
 tin. Rose and one of her children, a good 
 title had been acquired by Robert Brice's 
 adverse separate possession ; three of Rose's 
 children, Ned, Jim and Ann, one of Il)by's 
 children, Peter Page and Norman, were on 
 the testator's plantation at the time of his 
 death. Besides these five, several others 
 not included in the appraisement, were also 
 at the testator's plantation, namely, George, 
 little Sarah, Lydia and four children, Su- 
 sannah and Sam 3d, Robert and Porter. Rob- 
 ert Brice produces bills of sale to himself, 
 dated as follows: of Rose, February 3, 
 
 *326 
 1834; of Bob, *April 4. 1835; of Ibby and 
 two children, August 13, 1836 ; of George, 
 November 30, 1846. Jennet Brice produces 
 three bills of sale to herself — one of Winny 
 and Norman, dated May 1, 1838 ; and an- 
 other executed by J. W. Hudson, March 22, 
 1847, and the third for little Sarah. These 
 bills of sale, if valid, convey all the slaves 
 in controversy, except Martin, who is held 
 by possession. No express evidence is given 
 that William Brice, sen., had notice of these 
 bills of sale; but I am entirely satisfied 
 from all the circumstances of the case of 
 the truth of the statement in the answer, 
 "that these bills of sale were executed with 
 the full knowledge and approbation of the 
 father." This is the natural presumption 
 from the existence of the papers them- 
 selves ; for fraud cannot be snuffed at a dis- 
 tance where the breeze is not tainted. The 
 household of this old man was remarkably 
 harmonious, industrious, frugal and thrifty;
 
 DOUGLASS V. BRICE 
 
 *32S 
 
 and it H mniiifcst that the fatluT and <liil- 
 (licii prixi'fdcd mion tlu' priiicipli' of appor- 
 tiuiiiiif; ac<|iiisili()n.s accitrdini; to the value 
 of the services of the nieinhers of a eoiu- 
 jimiiity. Muri-el v. Murrel, 2 Strol). Vxi. 14S 
 [1!) Am. Dec. (i(;4|. One wltiie.ss testifies 
 that after Williaiii Hrice liad nuule Ins will, 
 lie .><aid "those of his ihildreii who had mar- 
 ried and p)ne olT had j^ot their full share 
 of his property at that time, and that the 
 hoys had made this property and had the 
 hest ri^iit to it." Anotlier witness testities, 
 that "William I'.rice when his will was he- 
 int; drawn up, and afterwards, said 1h> had 
 f^iven his otiier children what he allowed 
 for them, and that tiie hoys oujiht to have 
 the other projierty as they had made it." 
 Again: the father, hy acts and declarations, 
 recosrnized the tith' of some of these slaves 
 as heini; in Kohert and Jeiniet. in conformi- 
 ty to the hills of .sah'. lie |»eruiitted Hol>ert 
 to estahlish hy exclusive iios.scssion title to 
 Ihhy and Rose, tlu* motiiers of most of the 
 slaves now claimeii from Kohert ; and that 
 some of the young children of these mothers 
 wore kept at tlie home plac»', prohahly for 
 convenience of nurture, is a circumstance of 
 little weight in the contrary scale. It is 
 further proved that William IJrice said, 
 "Jennet had a negro woman. Winny and two 
 
 ♦327 
 children, with which she *hecame displeas- 
 ed, and directed Itohert to sell them ; and 
 that Kohert did sell tluun. and purchased 
 for her a family from Mr. Hudson, Julia 
 and her children." yorman is in the same 
 hill of sale with AVinny to Jennet. Against 
 the force of these circumstances the fact 
 Ijrincipally argued is, that William Hrice, 
 sen., undertook to bequeath as his own, 
 some of thesi' slaves to his diildren, Robert 
 and Jennet. But it is quite common for par- 
 ents In their wills to devise or heciueath in 
 terms to their children, estate that had been 
 in fact pieviously given as an advancement. 
 Such dispositions are intended rather to 
 magnify the extent of the donor's hoinity, or 
 to (piiet litigation among his legatees, than 
 to assert existing title in tlie subject in him- 
 self. There might be something in the argu- 
 ment, if the testator had attempted a dif- 
 ferent disposition of any of the.se slaves 
 from that which follows from the operation 
 of the bills of sale; but such is not the 
 fact. When we add to this, that the testa- 
 tor attempted to cut ofT by his will each 
 of the plaintiffs from a share of Ids estate, 
 the inference of claim hy the testator to 
 these slaves is destroyed. Iti my judgment 
 the plaintilTs have not established that Wil- 
 liam Rrice, .sen., at the time of his death, 
 was entitled to lands and chattels, beyond 
 what is conceded by the defendants to be 
 his estate. The crop of ls4i>, as the tes- 
 tator died after the first of March, nuist be 
 accounted for, according to the agreement. 
 If any existed, for the division of the pro- 
 
 ceeds among the testator and his children, 
 Robert and Jennet; otherwise, according to 
 the amount of capital invested and of the 
 labor employed, regarding the plantation 
 and the twelve negroes ap[»raised as belong- 
 ing to testator. The testator's share to be 
 K|ually divided nniong all of his distiibu- 
 lees. 
 
 Williiim Rrice, executor, and Robert Brice, 
 aihninistrator, mu.st acc<aint for the chattels 
 of the estate, and the funds by them respec- 
 tively received. It seems that John Brice re- 
 ceived for a time the avails of the labor of 
 Clari.ssa and her children, ami he must ac- 
 count to the representatives, and they to the 
 distriliutees as to thi.s matter. 
 
 If an order for the sale of the chattels 
 for partition be neces.sary, it may be api)lied 
 for. 
 
 ♦328 
 
 ♦It is ordered that this opiidon stand for 
 a decree ; that it be referre<l to the com- 
 missioner vo take the accounts uiion the 
 principles herein indicated. Costs to be paid 
 from the intestate property of Williaim Brice, 
 senior. 
 
 The complainants apixmled, on the follow- 
 ing grounds: 
 
 1. That the defendants cannot boM any 
 property, real or personal. claime«l by them 
 under the statute of limitations, inasmuch 
 as they have not asked for protection iinder 
 the said .statute by plea, answer or otherwise. 
 
 2. That William Brice, sen., being the pro- 
 prietor or sole owner of the land and ne- 
 groes, and other property from which the 
 crops were nuide, was rlie sole owner of the 
 crops raised on his plantation, and of their 
 proceeds; and was the sole owner of all 
 property purchased thereby ; unless the de- 
 fendants had, in express terms, proved a 
 gift; or an authority so to invest his moiues, 
 and take title or bills of sale in their own 
 right ; which tiiey failed to do. 
 
 .'{. lliat the evidence does not show that 
 William Brice, sen., had ever heard or 
 known, that any bill of sale was held by any 
 one of the defendants for either of the ne- 
 groes named in his will, (of date March 24, 
 1S4;{,) and by which he U'lieved he liatl 
 lawfully conveyed said negroes, twenty-six in 
 number, as his own property. The complain- 
 ants, therefore, sulanit that the said negroes 
 and their increase were rightfully the i)roper- 
 ty of William Brice, sen., at his death. 
 
 4. That the twelve negroes in the posses- 
 sion of deceased at his d»>ath, and not ap- 
 praised as his ju-operty, to wit: L.vdia, Susan- 
 nah. Utile Sam, Rohert. I'orter and .Norman, 
 claimed by Jennet Brice: and (Jeorge. little 
 Sarah, Ned, Jim, Ann, IVter Page, claimed 
 by defendant, Robert Brice, of right belong 
 to the estate of deceased; the first five nam- 
 ed, and al.so George and little Sarah, having 
 been purchased sin<t' the will was dated, and 
 the remaining live negroes having been in- 
 
 133
 
 *328 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 eluded in the will, and all living on tlie plan- 
 tation of the deceased as his property. 
 
 5. That the entire crop of 1849, raised on 
 
 *329 
 his plantation, be*lonsed to the deceased and 
 his estate, and that the defendant, Robert 
 Brice, as administrator, ought to be required 
 to account for the same. 
 
 6. That the defendants are bound to pay 
 the costs of this suit, for the reason that the 
 ■defendant, John Brice, claimed and took pos- 
 session after the death as his property, of 
 four negroes, now agreed by defendants in 
 their answer, as belonging to the estate of 
 the deceased, to wit: Clarissa and her chil- 
 dren, Lige, Catharine and Charles ; the de- 
 fendants, William Brice, as executor, and 
 afterwards Robert Brice, as administrator, 
 having acquiesced in the claim, or having 
 taken no steps to right the estate ; and the 
 complainants having been thereby forced to 
 bring their bill. 
 
 Buchanan, Hammond, for appellants. 
 Gregg, McAliley, contra. 
 
 PER CURIAM. This Court perceives no 
 error in the decree appealed from. It is, 
 therefore, ordered that the same be affirmed, 
 and the appeal dismissed. 
 
 JOHNSTON, DUNIvlN, DARGAN and 
 WARDLAW, CC, concurring. 
 Appeal dismissed. 
 
 4 Rich. Eq. 329 
 R. ZIMMERMAN and Wife et al. v. ELIZA- 
 BETH WOLFE et al. 
 (Columbia. May Term, 1S52.) 
 
 [Deeds <S==>120.] 
 
 Negroes were conveyed by deed "to J. M. 
 dining the term of his natural life, and at bis 
 death to M. M., bis wife, and the heirs of her 
 body, and in tbe event of tlie said M. M. de- 
 parting this life, witbout children living at her 
 death, then tbe said negroes to go to the said J. 
 M. during his life, and at his death to be divid- 
 ed equally, one half to tbe children of J. C. and 
 one half to tbe children of E. Z:"—Hcld, that 
 tbe limitation over to the children of J. C. and 
 E. Z. was valid. 
 
 [Ed. Note. — For other cases, see Deeds, Cent. 
 Dig. i; 380; Dec. Dig. <g=>120.] 
 
 Before Dargan, Ch., at Orangeburg, Feb- 
 I'uary, 1852. 
 
 Dargan, Ch. Conrad Holman, of St. Mat- 
 thew's Parish, departed this life on or about 
 
 *330 
 19th August, 1816, leaving a personal *estate, 
 consisting principally of negroes. He died 
 intestate, and his son, John C. Holman, and 
 his daughter, Elizabeth, who afterwards in- 
 termarried with Daniel Zimmerman, and his 
 daughter, Mary, who afterwards intermar- 
 ried with John INIurph, were his distributees. 
 On the 8th June, 1821, the parties, viz: the 
 son and daughters of the intestate, with their 
 
 I husbands, made a partition of tbe negroes 
 among themselves, by a tripartite indenture, 
 duly executed, by the terms of which in- 
 denture they mutually agreed to receive their 
 respective shares, sul).iect to certain contin- 
 gent limitations prescribed therein. The part 
 of said deed, which is now the subject of 
 consideration, is to the following effect: It 
 transfers certain negroes, who are specially 
 named, and their future increase to John 
 Murph and Mary, his wife, as their share, — 
 "to the said John ^furph, during the term of 
 his natural life, and at his death to the said 
 Mary and the heirs of her body, and in the 
 event of the said Mary departing this life 
 without children living at her death, then 
 the said negroes to go to the said John 
 Murph during his life, and at liis death to 
 be divided equally, one half to the children 
 of the said John C. Holman, and one half 
 to the children of the said Elizabeth Zimmer- 
 man ; and if either the said John C. or the 
 said Elizabeth should depart this life with- 
 out children living at his or her death, then 
 the said negroes to go to the children of the 
 other."' 
 
 John Muiijh departed this life in the year 
 1844, leaving liis wife, the said Mary, sur- 
 viving him ; and in the year 1848, she de- 
 parted this life without leaving any children 
 surviving her and being in possession of the 
 negroes at the time of her death. 
 
 John C. Holman died in the year 18.39. 
 He left children as follows: Elizabeth Hol- 
 man, who has intermarried with Russel Zim- 
 merman, and a son, John Holman. These 
 are the complainants. He also left a daugh- 
 ter, Catharine, who intermarried with one 
 Wolfe, and has died leaving two children, 
 Elizabeth and Catharine Wolfe, who are de- 
 fendants. 
 
 The complainants allege that Mary Murph, 
 in her life time, made a parol gift of the 
 
 *331 
 
 said slaves in their behalf, accompanied *by 
 delivery. They contend that she had a right 
 to make such a disposition of the negroes, 
 as according to their construction of the 
 deed, lier estate in the said negroes was 
 absolute in the event she survived her hus- 
 band, which she did. They further charge 
 that they have heard that the defendants 
 dispute their title to the negroes under said 
 parol gift. And they prefer their bill to 
 quiet their title to the said negroes, as 
 against the claim set up by the defendants; 
 and for a partition, if it should be decided 
 that the defendants are entitled to a share 
 under the limitations of the deed. 
 
 Daniel Zimmerman and his wife, IiJliza- 
 beth, are both dead. — They left children, 
 who also would be interested in the issues 
 made in these proceedings ; but in answer to a 
 (piestion by the Court, "Why were they not 
 made parties?" it was said that Mrs. Murph 
 
 134 
 
 <^=5For other cases see same topic and KEY-NU MltER iu all Key-Numbered Digests and Indexes
 
 ZIMMERMAN v WuLFE 
 
 in Ikt lift- tiint'. aiul in anticipation of her 
 (Icatli. (]»'liv»M-c'(l certain of the ne;:ri>es to 
 the iliildren of Mrs. Zininierinan, and to the 
 snrvivini.' chililren of John C. Ilolnian, (who 
 are the edniplainants,) the neirroes n)entioii- 
 f<l in tlie bill: and that both the cnniiMain- 
 aiits and the Ilolinans agrtM-'d to reeeiv*' the 
 lu'f^roes delivered to them in her life time 
 as their interest and share of the ii»';.'roes 
 linnted to them by the dee<l. From this 
 statement it would seem that the Zimmer- 
 mans are satisfied, and tlie II<ihnans, Inelud- 
 Im^' the defcMKhints, are also satisfied, so far as 
 re;;ards the partition between the two branch- 
 es of tlu' family. The matter to he adjudfied is 
 whether the Ilolman share of the ne;:ro 
 property of Mrs. Mnrpli is subject to fur- 
 ther partition, so that one third part there- 
 of shall be assif:ne«l to the defendants, who 
 are the representatives of Catharine Wolfe, 
 a deceased dau;;hter of .lohn ('. Holman. 
 
 Whether the defendants are so entitled 
 will depend upon the construction of the 
 deed. If the deed had conveyed the negroes 
 to John Murph during; his life, and at his 
 death to Mary Murph and the heirs of her 
 body, and in the event of dyinj; without 
 children livinj; at her death, then over. I ap- 
 prehend, there could not have been a doubt 
 as to the validity of the limitations; and 
 
 ♦332 
 
 these are *substantlally the provisions of 
 the deed. I have stated them iirecisely as 
 they are. with the exception of the life es- 
 tate to John ^lurph. interposed between the 
 estate of Mary Murph and the limitations 
 in favor of the ulterior remainder-man. Kut 
 the life estate given to John Murph in that 
 connexion, is a mere repetition. The first 
 estate conveyed to him is to him for life, 
 absolutely and independently of his sur- 
 vivinj; or of his not surviving his wife; and 
 the repetition of the grant to him ft)r life, 
 in the subsequent clause, gives him neither 
 more nor less than he takes by the first. He 
 was to have a life estate by the first clause, 
 whether he or she were the survivor, and 
 whether she left children or not. If she 
 died before her husband, without leaving 
 children living at her death, then at the ex- 
 piration of the estate already given to him 
 for life, the limitation over was to take ef- 
 fect. This, I think, is the true reading of 
 the deed, so far as relates to the clause in 
 1 1 nest ion. 
 
 If Mrs. Murph had left children surviving 
 her, whether they would have been entitled 
 to take as purchasers, I am not undi-r the 
 necessity of deciding. Such, however, I 
 think, would have iieen the result. Under 
 the »'.\pr«'ssion, "the heirs of her body," 
 the estate is given to her issue, which, if the 
 description had stopiied there, would have 
 been too indefinite, and would have failed for 
 remoteness. But the condition which fol- 
 lows, viz: that if she dies without children 
 living at her death, the estate was to go 
 
 over by way of remainder to persons who, 
 if they took at all, unist take within the 
 period prescribed against remoteness, re- 
 stricts the generality and vagueness of the 
 expression, "heirs of her body," and makes 
 it mean those very children, the failure of 
 whom, at her death, would cause the estate 
 to go over. The term 'iieirs of her body," 
 thus explained, means children living at her 
 d«'ath. wlio are in this way sufficiently de- 
 scribed as a class, and to whom, without 
 resort to Implication, an estate is directly 
 giv»'n as purchasers. According to this con- 
 struction. Mrs. Mnrjih would in no event 
 have taken more than a life estate. Under 
 this view of the case, there was an estate 
 
 ♦333 
 
 to John Murjili for life. remain*der to Mary 
 Murph for life, remainder to her diihiren 
 living at her death in fee; an<l if she should 
 die without children living at her death, 
 remainder to a class of persons, of which 
 the defendants constitute a portion. But the 
 right of the defendants, as I have already 
 intimated, does not deuend upon a construc- 
 tion which would make Mrs. Murph take a 
 life estate, with remainder to her children 
 (if she left any) in fee. The same result 
 woidd follow, if it was intended that she 
 should take a fee, provided she left children 
 surviving her; for in that ca.se it would 
 have been a fee defeasilile upon the event 
 of her dying without children living at her 
 death. And the condition has happened up- 
 on which the estate was to pass away from 
 her. If this construction should prevail, 
 then there was an estate to John Murph for 
 life, x'emainder to Mary Murph in fee, but 
 in the event she should die without children 
 living at her death, remainder to the children 
 of John C. Holman and of Mary Zimmerman. 
 
 In the opinion of the Court, the defend- 
 ants are entith'd to one tlnrd part of the 
 negroes described in the lull, and to an ac- 
 count of the hire and profits of the said 
 negroes, from the death of Mary Murph. 
 And it is so decreed. 
 
 It is further ordered, that the parties to 
 these proceedings have leave to apply at the 
 foot of this decree, for all orders neces.sary 
 and proper to carry the same into effect. 
 
 The complainants appealed, on the follow- 
 ing grounds: 
 
 1. Because under a proper construction 
 of the deed in question, and on the case as 
 made, the defendants are not entitled to one 
 third part of the negroes described in the 
 bill. 
 
 2. Because the decree is, in other respects, 
 erroneous and contrary to law and etpiity. 
 
 3. Because there lieing no privity between 
 comi»lainants and defendants, and the slaves 
 having bi'cn given to complainants in the 
 life time of Mrs. Murph, and the complain- 
 ants being stake holders, they should not 
 be charged with hire for them. 
 
 135
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 Keitt, Whaley, for appellants. 
 
 , contra. 
 
 *334 
 
 *PER CURIAM. This Court concurs in 
 the decree of tlie Chancellor ; and it is or- 
 dered that the same be affirmed, and the ap- 
 peal dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN, and 
 WARDLAW, CO., concurring. 
 Appeal dismissed. 
 
 4 Rich. cq. 334 
 CHBSLEY D. EVANS and Wife et al. v. WIL- 
 LIAM EVANS. . 
 (Columbia. May Term, 1852.) 
 
 [Wills <©=3740.] 
 
 Testator directed his slaves and other prop- 
 erty to be divided by freeholders, to be chosen 
 by his executors, into lots — that each one of his 
 children should draw one lot and hold the same 
 for life, with remainder to his or her issue: In 
 makiug- the lots, tiie freeholders inadvertently 
 put a female slave into one lot, and her infant 
 child into another ; the legatee who drew the 
 mother agreed, at the time and before the al- 
 lotment and division was complete, to take the 
 child and give the legatee who had drawn it his 
 note for ijilOD — the amount at which it had been 
 appraised — which was accordingly done: Held, 
 upon the evidence, that the child passed, in the 
 division, to the legatee who drew the mother, 
 anil that the •1>100 was paid for ecjuality of par- 
 tition, and not as purchase money for the child. 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. § 1892 ; Dec. Dig. <^^7-i0.] 
 
 Before Johnston, Ch., at Marion, Febru- 
 ary, 1851. 
 
 Johnston, Ch. This suits relates to a part 
 of the estate of General Godbold, late of 
 Marion district. 
 
 His will was executed the 17th day of 
 May, 1825, and he died in the same year. 
 Throwing out immaterial facts, the circum- 
 stances of the case may be briefly stated as 
 follows: 
 
 He left six children — Hugh, Charles, John, 
 Elizabeth, Sarah and Mary. Charles died 
 intestate and without issue, in 1827, and be- 
 fore the division of the estate hereinafter to 
 l>e stated. Sarah married the defendant, 
 William Evans. Elizabeth married first, 
 John Haselden, and afterw^ards David Mon- 
 roe, and died in 1844, leaving the plaintifts, 
 the issue of her two marriages, surviving 
 lier. 
 
 The testator's will directed his executor 
 *335 
 to keep his lands and *negroes together as 
 a planting establishment until the 1st Jan- 
 uary, 1830; subject to this, the following 
 provisions are found in the will. 
 
 1. "That my lands be divided into six equal 
 parts, as near as can be done, by not less than 
 three respectable freeholders, chosen by my 
 executor. After being so divided, the tracts 
 or divisions to be numbered and put into a 
 box or hat and drawn out by a child not ex- 
 
 ceeding ten years old, beginning with the 
 number first drawn for the oldest heir, my 
 son, Hugh Godbold ; No. 2, for my son, Char- 
 les F. Godliold ; No. 3, for my son, John M. 
 Godbold; No. 4, for my daughter, Elizabetli 
 Godbold; No. 5, for my daughter, Sarah 
 Ann Godbold ; No. 6, for my daughter, Mary 
 Godbold.'' 
 
 2. "The negroes, stock," &c., to be divided, 
 as the land, by numbers. 
 
 3. "All the property I have loaned," (there 
 are other clauses giving the above property 
 in the form of a loan to his children,) "to my 
 sons and daughters, before mentioned, afttr 
 he, she or they depart this life, shall go to 
 the lawful issue of their bodies ; and if ei- 
 ther of my children shall depart this life 
 leaving no lawful issue of their body, then 
 the wdiole of that part of my estate allotted 
 to him, her or them, should be equally divid- 
 ed among my surviving heirs." 
 
 When the period of division arrived, there 
 were still large debts of the testator remain- 
 ing unsatisfied, and the executor would not 
 consent to the division unless these were 
 provided for, and himself secured from the 
 consequences of assenting to the legacies. 
 An instrument wa.s therefore drawn up and 
 subscribed by the parties, by which each of 
 the legatees was to take the property to be as- 
 signed to him, with the burden of paying off 
 a specified portion of the debts ; and it was 
 stipulated that the executor shwild have pow- 
 er to subject the share of each legatee, in 
 his, (the legatee's) hands, for the payment 
 of the demands against the estate, and that 
 no legatee should be regarded as having such 
 title to liis share as would authorize him 
 to dispose of it even towards paying tliese de- 
 mands, unless the price was so applied, and 
 
 *336 
 the executor *was satisfied with the sum 
 raised by the sale. I'pon this agreement the 
 freeholders were called in by the executor, 
 appraised the property, and threw it into 
 lots. Cliarles Godbold, one of the legatees, 
 being dead, no share was distinctly made 
 up for him ; but the property was thrown 
 into five instead of six lots. 
 
 In doing this, by some inadvertence a little 
 female negro child, by the name of Sena, 
 then of such tender age as to render it im- 
 proper to take it from its mother, was put in- 
 to one lot and its motlier in another. The 
 child had been valued at one lunidred dol- 
 lars. The lot, including the mother, was 
 drawn by Sarah, (Mrs. Evans,) and that in- 
 cluding the child by Elizabeth, (Mrs. Has- 
 elden.) Evans and Haselden were present ; 
 and as soon as Haselden was informed of the 
 fact that the child had fallen to him, dis- 
 connected from its mother, lie remonstrated. 
 This seems to have been before Sarah's lot 
 was drawn, and while it was uncertain to 
 whom the mother would fall. He said that he 
 would not take the child home ; that if who- 
 
 136 
 
 ©:;»For other cases see same topic and KISY-NUMBER in all Key-Numbered Digests and lnde.xea
 
 EVANS V. EVANS 
 
 *83» 
 
 ever drew the mother would take It at the 
 apinaiseiiient. he miulit. and if he would not, 
 lie would ulve it to hiiu. There was a general 
 «<)iicunt'iice of the appraisers, the executor 
 and every i»erson present, that the viiild 
 and uintlicr should p. together; and Mrs. 
 Kvans havinj,' drawn the mother, it was. at 
 the »<xt'(ut(»rs su;,';;t'stion. and with the ap- 
 praisers' ai»proval. (and. as one of them tes- 
 tifies, liefore the process of allotment and 
 the division was complete.) arranged that 
 Evans should take the child alonf; with its 
 mother at its appraisement. lie pive his 
 note to Ilaselden for the amount. How or 
 when he paid the note does not appear; hut 
 lie this as it may. the division was completed, 
 and the parties received the property ac- 
 cordiiifily. of which they have retained the 
 pos.scssion. 
 
 The sliare assifincd to each of the five cliil- 
 drer. on this division was of the average value 
 of about .f;i.4CK). (subject t(» a proportionate 
 share of the estate's d»'hts still due. which 
 was considerable, and to over advances made 
 hy the executor, amounting; to over $;i()0.) one- 
 sixth of the property thus assi<,'ned. it will be 
 
 *337 
 
 •remembered, consisted of the share of Charles 
 Godbold. whicii was thrown in with the 
 others. 
 
 I'pon the death of Eiizalieth. the original 
 share given to her under the will, (accord- 
 ing to the cases on Hell's will.) was vested 
 in her cliildren. who survived her, and who 
 are the plaintiffs in this case, most of whom 
 are minors now, and all of them until latel.v. 
 
 The bill is to have Sena and her children, 
 (for she is now grown and has several chil- 
 dren, mentioned in the pleadings.) delivered 
 to the plaintiffs i)y defendant. Evans, with an 
 account of the profits since their mothers 
 death; and the ground taken is, that upon 
 the drawing of the lot in whch SiMia was in- 
 <luded, l)y their mother, she liecame vested 
 in their mother, subject to the linutations of 
 the will, and that tlicir father was incomi)e- 
 teiit to dispose of her to Evans. 
 
 This is the case for decision. I do not 
 think I have omitted any material circum- 
 stance. If I have inadvertently done so 
 my notes of evidence and the pleadings are 
 open for my correction. 
 
 I shall decide this case upon a single 
 ground. 
 
 It is very clear that if the slave vested in 
 Mrs. Ilaselden, it vested subject to the debts 
 of the estate, which bore a i)roportion to 
 Mrs. Ilaselden's whole lot greater than the 
 value of this child ; and it vested also suitject 
 to alienation for estate debts with the concur- 
 rence of the executor, whicii in this case to(»k 
 jilace. The assent of tiio executor, whi( li was 
 necessary to tlie vesting of the legacy, was 
 given only on these conditions; and upon 
 these conditions the legacy was received. 
 
 It is also clear that in the lot of Mrs. Ilas- 
 
 elden was included her projiortion of the 
 share of her deceased brother, Charles, to 
 which share no limitations were amiexed by 
 the will beyond the simple limitation over to 
 Mrs. Ilaselden and her brothers and sisters. 
 Her proportion therefore was her absolute 
 projierty, and subject to the disposal of her 
 husband. Wlu» will .say, at this di.stance of 
 time, that Seini did not reiiresent the propor- 
 tion received of Charles' share'/ Hut the 
 
 *338 
 ground upon which I put the *case. (wliat- 
 ever forms were gone th rough. » is that Sena 
 never was really included in tlie share finally 
 allotted and assigned to Mrs. Haseloen. 
 
 The case is analogous to the division of 
 Kichard Thomp.son's estate, which came up 
 before us several years ago, from Si)artan- 
 burg. 
 
 The negro in question was appraised, and 
 in the first instance placed in lot No. 4, but, 
 (says Col. Ilarllee, the executor, who was 
 examined as a witness.i the allotments were 
 modified by the transfer of Sena to lot No. 5. 
 This modification was made at the instance 
 of all the legatees, particularly Mrs. Hasel- 
 den, and with the assent of the conniiissioners 
 or freeholders who made the division ; and 
 this was done before the division was com- 
 pleted. Mr. Hugh Codbold. another witness, 
 and one of the legatees, concurs in tins statt'- 
 ment, and says he considered this transfer, 
 both then and now, as much a part of the 
 division as any other. 
 
 The drawing of this lot prec-eded the tran.s- 
 fer, and it is supposed that the proiterty 
 vested eo instanti upon that drawing. The 
 lot was dictated and adopted not for the 
 purpose of vesting the property, but for the 
 mere purpose of giving satisfactory evi.lence 
 of impartiality. It was coiniietent for any 
 party to waive it so far as himself was con- 
 cerned, and certainly it was competent for 
 all the parties together. It was not the al- 
 lotment, nor even tlie division which vested 
 the legacy. That dei>ended alone upon the 
 assent of the executor, and that was given to 
 the lots as modified. 
 
 It is objected, however, that upon this 
 view Evans owed .^1(X) for e<iuality of jmr- 
 tition; that the limitations of the will ap- 
 l»lied to that sum no less than the .si)ecific 
 property; and that Evans must make it 
 good to Mrs. Ila.selden's children. The an- 
 swer to thai is, that the bill makes no such 
 claim; nor does it arise incidentally to the 
 claims made in the bill. 
 
 Anotlu-r answer is, that there is nothing- 
 in the will to forbid Mrs. Ilaselden or lier 
 husband, (to whom the use of the i>roperty 
 was given,) from receiving and using the 
 
 ♦339 
 money; that it was com'petent for Evans to 
 Itay it to them ; and that the time which has 
 elapsed raises the presumption that he did 
 pay it. If they wasted it and ilefeated the 
 
 137
 
 *339 
 
 4 RICHARDvSON'S EQUITY REPORTS 
 
 remainder of their cliildren, the children must 
 loolv to tlieui. 
 
 I Duist dismiss tlie bill ; and it is ordered 
 that the same be dismissed. 
 
 The complainants appealed, on the follow- 
 ing grounds: 
 
 1. Because the answer of defendant drawn 
 by the executor, admitted the division of the 
 estate of Thomas Godbold, as charged in the 
 bill of complainant, and alleges that the ne- 
 gro in question was bought by the defend- 
 ant from John Haselden, the father of com- 
 plaijiants, to whom she was allotted by the 
 commissioners in partition, with the assent 
 of the executor. 
 
 2. Because the return and certificate of the 
 commissionei'S who were selected to divide 
 the estate under the directions of the will, 
 were conclusive as to said partition, and his 
 Honor erred in admitting or allowing parol 
 evidence to alter or contradict it. 
 
 3. Because there was no evidence that the 
 negro Sena was allotted to any other person 
 except to Mrs. Haselden, the mother of com- 
 plainants ; and it is submitted that such al- 
 lotment vested the property in her for life, 
 and in her childi*en at her death, and that no 
 act of her husband, or of her executor, aft- 
 er such allotment had taken place, could 
 divest either her or her children, provided 
 the debts were paid as agreed upon with 
 the executor. 
 
 4. Because it was proved that no part of 
 the purchase money of Sena was applied 
 to the debts of the estate ; but, on the oth- 
 er hand, John Haselden sold more of the 
 property allotted to his wife than would 
 extinguish his portion of the debtg of the 
 estate, and his wife's share of the estate 
 of C. F. Godbold, the deceased brother ; 
 and it is insisted that the defendant be- 
 ing a purchaser with notice, is bound to 
 account and specifically deliver the proper- 
 ty in question in the same manner that Has- 
 elden would if living. 
 
 5. Because, according to the proof the prop- 
 erty of the negro in question was vested in 
 complainants' mother, at the division for 
 
 *340 
 
 *life, and no act of the parties was estab- 
 lished which could legally deprive complain- 
 ants of their rights in remainder thereto of 
 a specific delivery and account prayed for in 
 the bill. 
 
 Harllee, for appellants. 
 Dudley, contra, 
 
 PER CURIAM. This Court concurs in the 
 circuit decree; and it is ordered that the 
 same be affirmed, and the appeal dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN 
 WARDLAW, CC, concurring. 
 Appeal dismissed. 
 
 and 
 
 4 Rich. Eq. 340 
 
 GEORGE CRIM and Wife et al. v. WM. 
 KNOTTS et al. 
 
 (Columbia. May Term, 1852.) 
 
 [Wills (S=3524. n.'U.] 
 
 Testator declared, "it is my will and desire 
 that the rest and remainder of my e.state be di- 
 vided into equal shares among my brother, Jacob 
 i'attersun, and Anthony I'attersou's lawful 
 children, and that my brothers, Jacob and An- 
 thony, have the use of their children's portion, 
 or part, during their natural lives, and at their 
 death to their children forever." At the death 
 of testator Jacob had eight children living, and 
 Anthony had three ; and Anthony had nine 
 children born afterwards: Held, that Jacob and 
 Anthony were each entitled to take one moiety 
 of the estate for life ; and that at Anthony's 
 death all his children, as well those born after 
 the death of testator, as those born before, were 
 entitled to his moiety as remainder-men. 
 
 [Ed. Note. — Cited in Felder v. Felder, 5 Rich. 
 Eq. 515; Tindal v. Neal, 59 S. C. 14, 36 S. 
 E. 1004. 
 
 For other cases, see Wills, Cent. Dig. §§ 
 1123, 1149; Dec. Dig. (®=>524, 531.] 
 
 Before Dargan, Ch., at Orangeburg, Feb- 
 ruary, 1852. 
 
 Dargan, Ch. John Patterson, of Edisto 
 Island, died in the month of January, A. D. 
 1818. He left, in full force and duly ex- 
 ecuted, his last will and testament, bearing 
 date the 31st December, 1817. William Sea- 
 brook, William Edings and Ephraim Mikell, 
 were appointed by the testator as the ex- 
 ecutors of his will, and the said will having 
 been admitted to probate, the executors took 
 upon themselves the burthen and execution 
 thereof. After bequeathing several specific 
 legacies, (not necessary to be particularly 
 alluded to,) the testator proceeds to declare 
 
 *341 
 as foPlows: "It is my will and desire, that 
 the rest and remainder of my estate be di- 
 vided into equal shares among my brother, 
 Jacob Patterson, and Anthony Patterson's 
 lawful children, and that my brothers, Jac- 
 ob and Anthony, have the use of their chil- 
 dren's portion, or part, during their natural 
 lives, and at their death to their children 
 forever." 
 
 At the time of the testator's death (and 
 of the said sale.) Jacob Patterson had eight 
 children, (not necessary to be described,) and 
 Anthony Patterson had three children. The 
 children of the said Anthony Patterson, who 
 were living at the death of the testator, 
 and the representatives of those since dead, 
 are as follows: Margaret, his daughter, who 
 has intermarried with George Crim ; George 
 C. Patterson, a son, who, according to the 
 statement of the bill, left the State 12 or 13 
 years ago, and not having since been heard 
 from, is supposed to be dead ; and Mary, a 
 daughter, who intermarried with Amos Har- 
 ris, and who died on the 25th of February, 
 1844, leaving her husband, the said Amos 
 Harris, and her children, Daniel Harris, El- 
 len Harris and Jane Harris her heirs at 
 
 138 
 
 ^=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 CRTM V. KXOTTS 
 
 •34-1 
 
 law and (listri)>utoos. After tlio dcjith of 
 Joliii rntttTsoii. (tlu' testator,) Anthony Pat- 
 tcrscin liad one otluT <liild by his first niar- 
 riane. namely, Eliza Wactor, who is now a 
 widow. After the death of liis tirst wife. 
 Antliony Patterson formed a second mar- 
 riage, iiy whidi he had ei;;ht children, name- 
 ly, IJachael ()., wife of .lames Wimhish, (now 
 residin^i in Virginia,) IJarhara S.. wife of 
 John Lucas, Leah E.. wife of William Cleck- 
 ley. Sarah (\ Patterson. Jane Patterson. 
 l>onaId Patterson. J«'romo Patterson and Su- 
 sannah Patterson. These children, with his 
 second wife, Elizabeth Patterson, all surviv- 
 ed the said Anthony Patterson. 
 
 The slaves purchased by Anthony Patter- 
 son at the sale of the est^ite of John Pat- 
 terson, (or rather the survivors thereof.) 
 and the natural increase of the stock are at 
 the present time, seventeen in number, name- 
 ly: Sarah. Isaac, John, Closes, Mary, Bet- 
 sy. Joe. Sinda, Seaiy. Sampson. Sylvester. 
 Adam. William, Georj^e. Aaron. David and 
 Kachael. These slaves were in the posses- 
 sion of Anthony I'atterson at the time of 
 
 *342 
 
 his death, which occurred *on the ."'.Ist May, 
 I.S.0O. Be.sides these, he had at the time of 
 his death, two other slaves of a different 
 stock, namely: Eleancu- and Stephen, and 
 some otlier personal proi)erty. Tiie said An- 
 thony I'atterson having died intestate, one 
 William Knotts has sued out letters of ad- 
 ministration of the intestate's estate, aiTd 
 has possessed himself thereof, as well of the 
 nej^roes derived by his intestate from the 
 sale of John Patterson's estate as those de- 
 rived by him from another source. 
 
 The complainants are Georjie Crim and 
 Mariraret. his wife, Amos Harris. Daniel P. 
 Harris. Ellen Harris and Jane Harri.s. The 
 defendants are William Knotts. the admin- 
 istrator. Eliza P. Wactor. a dauirhter of An- 
 thony Patterson by his first wife. George C. 
 Patterson, a son by his first wife, (who is 
 absent and supposed to be dead.) and all his 
 aforesaid children by his second marriage. 
 
 The complainants contend that they, with 
 (ieorge C. Patterson, are entitled to the 
 whole of tlie legacy given by John Patter- 
 son's will to Anthony l»atterson's children, 
 to the exclusion of the post natal, or those 
 born after the testator, and after his will 
 took effect. 
 
 The general rule is, that a Ixniuest to chil- 
 dren as a class, .embrai-es only the children 
 who are in existence at the testator's death. 
 If the period of distribution be jiostponed, 
 all who can bring themselves within the de- 
 scription of the time ainiointed for the dis- 
 tribution, will be entitled, whether the time 
 be a fixed date or contingent upon some fu- 
 ture event. If the betpiest be indefinite as to 
 the time for the partition and the en.joyment 
 of the legacy, the general rule will prevail, 
 and the children lu esse at the death of the 
 
 testator, will take to the exclusion of the- 
 post natal. 
 
 If an estate be given to one for life, and 
 after his death to his children, all the chil- 
 dren will be entitled to take the post natal 
 as well as the ante natal. The same result 
 would follow, if an estate was givi>n to one 
 for life, with remainder to children of an- 
 other person. The interjiosition of the life 
 t'state has the effect of postponing the parti- 
 tion, and thus lets in all the children e<iual- 
 ly. This. I mean to say, would be the con- 
 
 ♦343 
 stru<tioM, unless there wi-re ♦other manife.s- 
 tations of the testator's intention expressed 
 in the context, or arising by imjdication. 
 
 On behalf of the jiost natal, it is contend- 
 ed, that Jacob Patterson and Anthony Pat- 
 terson had a life estate respectively in the 
 projterty given to them by John Patterson's 
 will, which postponed the period of distribu- 
 tion to the death of the teiumts for life, 
 and thus let in all the children, according 
 to the doctrine so well settled. The argu- 
 ment is specious, but there are circumstances 
 which forbid such a construction. 
 
 I lay no great .stress on the fact, that the 
 will in form gives the estate directly to the 
 children, and then provides that the parents,, 
 (the testator's brothers.) should "have the 
 use of their chil(lren.s' portions or shares,, 
 during their natural lives, and after their 
 death to their children forever." Substan- 
 tially, the "will may be regarded as giving 
 tt» Jacob and Anthony Patterson an estate 
 for life, respectively, in their childrens' por- 
 tions, with remainder to their children. 
 
 "The rest and remainder" of the estate is 
 given to the children of Jacob and Anthony 
 Patterson. In what proportions do the chil- 
 dren of the two bn)thers take'.' Do they 
 take per stirpes or per capita? In my ojtin- 
 ion. the solution of this cpiestion will have 
 an important bearing on the construction of 
 the will as to the issue now before us. The 
 testator declares it to be his will that the 
 rest and remainder of his estate shall l»e 
 divided in equal shares among his brother 
 Jacob and Anthony Patterson's lawful chil- 
 dren; and that his brothers, Jacob and 
 Anthony Patterson, have the use of their 
 childrens' porticuis or shares during their 
 natural lives, and at their death to their chil- 
 dren forever. 
 
 I take it to be very clear, that the chil- 
 dren of Jacob and Anthony Patterson took 
 l»er capita. "Where a gift is to .several per- 
 sons, whether it be to the children of A. and 
 B.. or to the children of A. and the chil- 
 dren of B.. they take per capita and not 
 per stirpes." 2 Jarm. on Wills III.; Weld 
 V. Bradbury, 2 Vern. 705; Lady Lincoln v. 
 Pelham, 10 Ves. 100: Barnes v. Patch, 8 
 Ves. 004; ex parte Leith, 1 Hill E(i. 15^. 
 ♦344 
 
 ♦Jacob Patterson had eight children, and 
 Anthony I'attersuu had three children at 
 
 139
 
 •344 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 the death of the testator. He gave to each 
 of his brothers the use of his cliildrens' por- 
 tion or share during his life. He therefore 
 designed a partition per capita among the 
 children of his brothers who were living at 
 his death. How otherwise could his broth- 
 ers have the use of their childrens' portions 
 or shares during their lives? An instant di- 
 vision was necessary to the enjoyment of 
 their life estate or interest ; for it could not 
 be known what their childrens' shares or 
 portions were without such division. It is 
 obvious also, that if a distribution then took 
 place, only the existing children could par- 
 ticipate in the division. The three children 
 of Anthony Patter.son were entitled per cap- 
 ita to three shares, and the eight children 
 of Jacob Patterson to a corresponding num- 
 ber of shares. Upon this principle a parti- 
 tion was actually made of the property em- 
 braced in the residuary clause, among the 
 children of Jacob and Anthony Patterson, 
 by a decree of the Court of Equity in the 
 year ISIS; and Jacob and Anthony Patter- 
 son have, since that time, had the possession 
 and enjoyment of their portions respectivelj-. 
 It may be asked, why not now let in the 
 post natal iu a distribution of the part, 
 which, in the partition already legally made, 
 has been assigned to the children of An- 
 thony Patterson? Why not do this, as the 
 period of their enjoyment, and for a divi- 
 sion among themselves, has just arrived? 
 Why not let them in, as they can now bring 
 themselves within the description of chil- 
 dren? I do not think that there is any thing 
 to be inferred from the will, that the testa- 
 tor had in contemplation two periods of dis- 
 tribution as affecting the rights of the par- 
 ties who were to take. To let in the after- 
 born children of Anthony Patterson, in the 
 distribution of the three shares (out of 
 eleven,) which the ante natal drew iu the 
 per capita division with tne children of 
 Jacob Patterson, would violate the manifest 
 and declared intention of the testator. He 
 said that the property should be equally di- 
 vided amongst the children of Jacob and 
 Anthony Patterson. How can it be an equal 
 division, if after eight-elevenths have been 
 
 *345 
 
 taken *off by the children of Jacob Pat- 
 terson, the three-elevenths assigned in the 
 division to the children of Anthony Patter- 
 son, should again be subdivided into twelve 
 shares, corresponding to the number of An- 
 thony Patterson's children. The shares 
 which his three oldest children took in the 
 division, they took as legatees under the 
 description of children, and they took in 
 their own right. If there is any thing cer- 
 tain in the will, it is that those who were 
 to take at all were to take in equal shares. 
 It seems to me but little short of an ab- 
 surdity to say that when they, in pursuance 
 of the terms of the will, and coming in under 
 the description of "children," took three 
 
 140 
 
 shares out of eleven, which were then equal 
 shares, and all they were entitled to receive, 
 now they should be compelled to make par- 
 tition with the after-l)orn children of An- 
 thony Patterson, who were not then in esse, 
 and not entitled to draw any shares! If 
 such a constructiou were to prevail, it is 
 clear that the whole estate must be Itrought 
 together, as well that which was assigned 
 to Jacob Patterson's children, as that which 
 was assigned to Anthony Patterson's chil- 
 dren, and a division made e^iually among all. 
 Jacob Patterson, however, has long since 
 gone to the West, and carried with him his 
 children and their property. It is not known 
 to the Court whether he is living or dead. 
 If living, he has still a life estate in his 
 childrens' portion of the testator's estate. 
 And were he now within the jurisdiction of 
 the Court, the claim could now be made, 
 (that is, in his life time,) for an equal divi- 
 sion of all the testator's residuary estate 
 among all his nephews and nieces, the post 
 natal as well as the ante natal. The dif- 
 ferent periods at which the life estates of 
 Jacob and Anthony Patterson would ter- 
 minate, is another argument to show that 
 the testator did not contemplate an equal 
 division among all the children of his two 
 brothers, born or to be born. 
 
 The result of my retlections is, a decided 
 opinion, that only the three children of An- 
 thony Patterson living at the death of John 
 Patterson, are entitled to the legacy be- 
 queathed to the children of Anthony Patter- 
 son by the residuary clause of John Patter- 
 son's will ; and it is so ordered and decreed. 
 *346 
 *And it is further ordered and decreed, 
 that one part thereof be assigned to Marg- 
 aret Crim, one third part to the distributees 
 of Mary Harris, and one third part to 
 George C. Patterson. As to the share of the 
 latter, if the circumstances warrant the le- 
 gal presumption of his death, there must be 
 an administration as in any other case of 
 death and intestacy. And the persons inter- 
 ested as his distributees must proceed as 
 they are advised. There is nothing in the 
 present proceedings that warrants any thing 
 more to be done in reference to his share, 
 than to order it to be set apart to him. 
 The defendants appealed: 
 Because, under the provisions of John Pat- 
 terson's will, the defendants were entitled 
 to share equally with the complainants in 
 the residuary estate. 
 
 Glover, for appellants. 
 , contra. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW, Ch. In the construction of 
 bequests to children, it is well settled, that 
 where a bequest is immediate to children in 
 a class, children in existence at the death 
 of the testator, and these exclusively, are 
 entitled to take. But where the division of
 
 KEITT V. ANDREWS 
 
 *349 
 
 the fund aninrif; the legatees is deferred un- 
 til a itarticiilar period, which takes place 
 after the death of the testator, children 
 horn aft<'r the testator's death nia.v be en- 
 titled under a heipiest to <hlldren in a class. 
 Thus, where le;ra<ies are ^'iven to the children 
 of A. when a child or children attain a par- 
 ticular iiiiv. or to he divided amongst them 
 at the death of A; an.v child who falls un- 
 der the description at the time when the 
 fund is to he divided, .is entitled to a share, 
 although not horn until after testator's 
 death, and although born of a subserpient 
 marriage. 2 Wnis. Ex'rs. 707; (Jilmore v. 
 Severn. 1 lire. C. C. 5.S2 ; Harrington v. 
 Tristram. 6 Ves. 345. 
 
 The Jiequest to be interpreted ni the pres- 
 ent case, is in the following words: "It is 
 m.v will and desire, that the rest and re- 
 *347 
 
 ♦mainder of my estate be divided into equal 
 shares among my brother Jacob Patterson 
 and Anthony Patterson's lawful children, 
 and that my brothers, Jacob and Anthony, 
 liave the use of their childrens' portion, or 
 part, during their natural lives, and at their 
 death to their children.'" This clau.se is 
 drawn uugrannnatically and inartiticially, 
 but the intention of the testator, which is 
 the great guide of interpretation, where no 
 rule of law is infringed, seems pretty plain. 
 The testator has directed, in effect, that the 
 residue of his estate be divided into two 
 equal sliares; that Jacob Patterson shall 
 have one of these moieties for life, and that 
 at his death his children shall take the 
 same among them absolutely ; and in like 
 manner, that Anthony shall take the other 
 moiety for life, and at his death his chil- 
 dren shall take it among them absolutely. 
 No dispute is made as to the accuracy of 
 this interpretation in any particular, ex- 
 cept as to the original division into two 
 equal parts. It is argued for the plaintiffs, 
 that the original division should be into as 
 many parts as tliere were children of tes- 
 tator's brothers at his death ; and conse- 
 (luently that Jacob for life, and his chil- 
 dren after him. should take eight shares, 
 and Anthony take for life three shares only, 
 distriliutable at his death among his three 
 children in being at testator's death, to the 
 exclusion of the eight born subsecpiently. 
 The argument has some support in the let- 
 ter of the former portion of the clause, but 
 it is opposed to the general scope of the pro- 
 vision, particularly that which postpones 
 the en.ioyment of the fund by the children, 
 until the deaths of their fathers respective- 
 ly. The enqiloymeiit of the terms "chil- 
 drens' portion or part." seems to contem- 
 plate that a moiety for each class of chil- 
 dren was to remain an unsi>parated mass un- 
 til the period of cn.joyment arrived. The di- 
 rection as to division of the residue into 
 equal parts, is satisfied by understanding 
 
 it as applicable to the brothers of the testa- 
 tor who were the immediate objects of his 
 bounty; and no reasonable motive can be 
 assigned for the suppo.sed puri)ose of the tes- 
 tator, to exclude from the remainder any of 
 the children of his brothers. In the case 
 cited from \'esey, Lord Eldon remarks: 
 
 *348 
 "The rule *of the Court has gone upon an 
 anxiety to provide for as many children as 
 possible with convenience. Therefore any 
 coming in esse, before a determinate share 
 becomes distributable to any one, is in- 
 cluded." 
 
 In oi)position to the construction indicat- 
 ed, it is further urged, that the construc- 
 ti<m given by the plaintiffs was adopted by 
 the decree of this Court in 1818, in a suit 
 between the tenants for life and the executor. 
 But the partition then decreed is not obliga- 
 tory upon the children who were no parties 
 to the proceedings. Bool v. Mix, 17 Wend. 
 110. 
 
 The fact that Jacob Patterson received too 
 much in the partition of 1818. in no wise 
 diminishes the right of the defendants to 
 equal distribution with the other children 
 of Anthony in the partition received by him. 
 Any claim to recoup from Jacob or his es- 
 tate for the excess above one half received 
 by him, is common to all the children of 
 Anthony. 
 
 It is declared and adjudged, that all the 
 children of Anthony Patterson, living at his 
 death, are entitled to distribute amongst 
 them the legacy enjoyed by the said Anthony 
 for life, under the will of John Patterson: 
 and it is ordered and decreed, that the ac- 
 counts be taken accordingly. Costs to be 
 paid out of the estate of Anthony Patterson. 
 It is further ordered and decreed, that the 
 circuit decree be modified according to this 
 opinion, and in other respects be affirmed. 
 
 JOHNSTON 
 curred. 
 
 and DUNKIN, CC, con- 
 
 DARGAN, Ch. I dissent. I see no rea- 
 son whatever for changing or modifying the 
 construction of the will given in the circuit 
 decree. 
 
 Decree modified. 
 
 4 Rich. Eq. *349 
 
 ♦GEOIKJE D. KEll^' and WitV v. JAMES J. 
 
 A.\ DREWS and Wife. 
 
 HENRY W. MOORER and Wifo v. THE 
 
 SAME. 
 
 (Columbia. May Term. IS't'J.) 
 
 [Ej-cciifora and Admini.'itrnlors <g=>r)00.] 
 
 Testator having au only daughter and two 
 grand-ciiildren, issue of nis liauirhtiT. bequeath- 
 ed i»r<)i)erty to his 'graud-children to be equally 
 divided between them:' after the death of testa- 
 tor three other grand-children, issue of his 
 daughter, were born: when the two eldest 
 
 ^=»For other cases see same topic and KEY-NUMBEU in all Key-Numbered Digests and Indexes 
 
 141
 
 *349 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 grand-children, who alono were entitled to take 
 under the will, arrived at ase, the executor paid 
 each of them one-fifth if the legacy, and took 
 from them written acquittances and discharges: 
 this settlement was intended to be in full.— all 
 the parties, including the ordinary who stated 
 the account, supposing in good faith that all 
 the grand-children were entitled to share the 
 legacy: near eight years afterwards the two 
 eldest grand-children filed their bill to have the 
 settlement opened, on the ground of mistake of 
 law: — Bill dismissed. 
 
 [Ed. Note.— For other cases, see Executors 
 and Administrators. Cent. Dig. §§ 2199-2219, 
 22.33, 2234; Dec. Dig. <g=>509.] 
 [Executors and Administrdtors (g=>.509.] 
 
 Where executor an<l legatee honestly mis- 
 construe the will, and have a settlement in full, 
 based upon such misconstruction, the settlement 
 will not be opened merely because of such mis- 
 construction. 
 
 [Ed. Note.— Cited in McDow v. Brown, 2 S. 
 C. 109; Ix)st Bonds Case, 15 S. C. 231; Cun- 
 ingham v. Cuningham, 20 S. C. 332; Kerngood 
 V Davis 21 S. C. 209; Norman v. Norman, 
 20 S. C. 48, 11 S. E. 1096; Munro v. Long, 
 35 S. C. 360. 14 S. E. S24, 28 Am. St. Rep. 
 851; Smith v. Winn, 38 S. C. 192, 17 S. E. 
 717, 751; Porter v. Jefferies. 40 S. C. 101. 
 IS S. E. 229; Brock v. O'Dell, 44 S. C. 36, 
 38 39 41, 21 S. E. 976; Hutchison v. Fuller, 
 67 S. C. 284, 45 S. E. 164; Smith v. Linder, 
 77 S. C. 542, 58 S. E. 010. 
 
 For other cases, see Executors and Admin- 
 istrators, Cent. Dig. §§ 2199-2219, 2233, 2234; 
 Dec. Dig. <@=3509.] 
 
 [Executors nnd Administrators <g=>516.] 
 
 Parties desirous of opening a settlement, on 
 the ground of errors or mistakes, must make 
 haste in their application to the Court: long 
 acquiescence amounts to a presumed ratification. 
 
 [Ed. Note.— Cited in Brock v. O'Dell. 44 S. 
 C. 36, 21 S. E. 976 ; Ex parte Baker, 67 S. C. 
 83, 45 S. E. 143. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 2224; Dec. Dig. <S=>516.] 
 
 Before Dargan, Ch., at Orangeburg, Feb- 
 ruary, 1852. 
 
 Dargan, Ch. These two cases, involving 
 precisely the same issues of law and fact, 
 were, by the consent of the parties, tried to- 
 gether. 
 
 Daniel Ilesse, at the time of his death, 
 (1826,) was seized and possessed of a consider- 
 able real and personal estate, all of which 
 he disposed of by his last will and testament, 
 bearing date the 7th February, 1826. He had, 
 at the time of his death, but one child, Ann 
 Catherine Felder, then the wife of Henry 
 Felder, now the wife of the defendant, James 
 J. Andrews. The said testator had at that 
 time no living descendant but his daughter, 
 the said Ann C. Felder, and her two children, 
 Olivia, now the wife of the complainant, 
 George D. Keitt, and Sarah A., now the wife 
 of the complainant, Henry M. Moorer. After 
 the death of Imniel Ilesse, Ann Catherine 
 Felder had another daughter by her flrst 
 
 *350 
 *inarriage, namely, Henrietta Felder, now the 
 wife of Wesley Keitt. 
 
 Henry Felder and Ann Catherine, his wife, 
 were appointed the executor and executrix of 
 the will of Daniel Uesse. Shortly after the 
 
 testator's death, Henry Felder proved the 
 will, qualitied as executor, and took upon 
 himself the burthen and execution thereof. 
 He died shortly afterwards, (28th April, 
 1826,) and Ann Catherine Felder, by virtue of 
 her appointment, became the executrix of the 
 said will. She qualified on the 15th of Feb- 
 ruary, 1827. On the 18th day of May, she ob- 
 tained letters of administration of the estate 
 of her deceased husband, the said Henry 
 Felder. 
 
 On the day of April, 1829, the said 
 
 Ann Catherine Felder intermarried with the 
 defendant, James J. Andrews, by whom she 
 has issue two sons, James Hesse Andrews 
 and Edward W. Andrews. The defendant, 
 James J. Andrews, by virtue of his marital 
 rights, became the acting executor of the 
 estate of Daniel Hesse. From the time of 
 his marriage to the present time, he has con- 
 tinued to manage the estate, and he made the 
 settleuients with, and took the receipts and 
 discharges from the complainants, that will 
 be hereafter noticed and considered. 
 
 The testator, Daniel Hesse, disposed of his 
 whole estate in favor of his daughter and her 
 children. The present litigation grows out of 
 the sixth, eighth and ninth clau.ses of the 
 will. The sixth clause is as follows: "The 
 remainder of my lands I will and bequeath to 
 my grand-children, to be equally divided 
 among them, share and share alike." The 
 lands have been sold since the wives of the 
 cttmplainants have come of age, and all the 
 parties in interest have joined in the execu- 
 tion of the conveyances in the proper legal 
 form, to assure the title to the purchasers. 
 And so far as this clause goes, it is the pro- 
 ceeds of the sale of the lands that constitute 
 the subject of controversy. 
 
 The eighth clause reads thus: "I will and 
 bequeath to my grand-children the sum of 
 four thousand dollars in paper bills and notes 
 on interest, to be equally divided among 
 
 *351 
 them, share *and share alike. My executors 
 are authorized to loan the money into good 
 hands, and not without, and the interest aris- 
 ing therefrom to go to my grand-children, to 
 be equally divided among them, share and 
 share alike." 
 
 The ninth clause is in these words: "My 
 will is, that all my stock, including horses, 
 cattle and hogs, household and kitchen furni- 
 ture, plantation tools, and every other arti- 
 cle of property belonging to me. should be 
 set up at public sale, and knocked off to the 
 highest bidder, and the money arising from 
 the sales to go to my grand-children, to be 
 equally divided between them, siiare and 
 share alike. The sale money may also be 
 loaned, if it can be put into good hands, and 
 not without, and the interest arising from it 
 to go to my grand-children, to be equally di- 
 vided between them, share and share alike." 
 
 The complainants contend, that Mrs. Keitt 
 
 142 
 
 ^==>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indeicea
 
 KEITT V. AXDREW3 
 
 *353 
 
 and Mrs. Moorer being the only grand-chil- 
 tlron of the testator at the execution of liis 
 will, and at his death, are entitled to take, 
 to the exclusion of all the after liorn grand- 
 cliilditMi. all the property bequeathed in tiie 
 three clauses that have been recited. This 
 construction the defendants deny, and con- 
 tend that all the grand-children are equally 
 entitled. 
 
 Tlie case is too plain for doubt. Tlii' rule 
 is clear, that where there is a bequest to chil- 
 dren or grand-children, as a class, and in 
 general terms, only tho.se in existence at the 
 <leath of the testator are entitled. A niodirt- 
 (ation of this rule is where the distribution 
 is postponed to a particular time, or is direct- 
 ed to be made on the happening of a particu- 
 lar event contingent as to time. In such a 
 case, all who can bring themselves within the 
 class, or answer the description, at the perioil 
 Hxed by the testator for the distribution, are 
 entitled to participate. WJiere there is an 
 inmiediate f^ift to children, to take effect in 
 possession at the testator's death, the chil- 
 dren living at that time are alone entitled. 2 
 Jarm. on Wills, 74. See also the elaborately 
 considered case of Myers v. Myers, 2 McC. 
 K.i. 215 [IG Am. Dec. G4S]. where it was held 
 that a devise to grand-children, without any 
 
 ♦352 
 
 definite period fixed by the *will for the divi- 
 sion, included only such grand-children as 
 were living at the death of the testatrix. 
 
 The intention of the testator, as indicated 
 in the context, may control the rule. But 
 in Daniel Hes.se*s will, there is no light re- 
 flected from the context upon the construc- 
 tion of these clauses. Tliey nmst be con- 
 strued according to their own import, under 
 the rules of law above referred to. And my 
 conclusion is. that Mrs. Keitt and Mrs. Moor- 
 er, being the only grandchildren of the tes- 
 tator born and existent at the time of his' 
 death, were alone entitled to the legacies be- 
 (|ueiitlied to grand-children in the sixth, 
 eighth and ninth clauses of the will. 
 
 Hut the parties have settled upon a differ- 
 ent construction of the will. I'roceeding up- 
 on the principle that the after born grand- 
 children of the testator were entitled to share 
 equally with those who were in being at the 
 time of his death, George D. Keitt, in behalf 
 of himself and his wife Olivia, and Henry 
 M. Moorer, in behalf of himself and his wife 
 Sarah, have, on a formal settlement with the 
 defendants, Andrews and wife. riH.'eived one- 
 lifth part of the property bequeathed in the 
 Ibree clauses of the will before cited, in full 
 of their sliares thereof, and have released, 
 acipiitted and discharged the said Andrews 
 from any further accounting for the same. 
 TIk; relea.se and discharge of Moorer is dated 
 the inih December. 1S41. and is under seal; 
 and that of Keitt is dated the 21st day of 
 January, 184.'!, and is not undi-r seal. Ex- 
 cept as to the seal, the discharges of Moorer 
 
 I and Keitt are substantially the same. The 
 settlement with each of them was made upon 
 the same rules of calculation and the same 
 principles of construction. 
 
 On the ISth December, 1S51, George D. 
 Keitt and wife filed their bill against James 
 J. Andrews and wife, for the purpo.se of set- 
 ting aside the release and discharge and 
 opening the settlement, praying that the same 
 should be made according to the true con- 
 struction of Daniel Hesse's will, wnich they 
 contenil excludes the after born grand-chil- 
 dren as to all the itroperty devised and be- 
 queathed in the sixth, eighth and ninth claus- 
 
 ♦353 
 es of the will. And *on the same ilay, the 
 said Henry M. Moorer and wife filed their 
 bill against the same defendants for the same 
 purposes. 
 
 The conqilainants claim to be relieved 
 from the effect of their settlement with the 
 defendiints, and of the receipts and discharg- 
 es which they have executed to them, on the 
 ground tiiat they were •'misinformed, mis- 
 taken and deceived as to the extent of their 
 rights and interest under the will of the said 
 Dauiel Hesse," and were "led to believe that 
 the after born children of the said Anu Cath- 
 arine Felder were entitled by law to share 
 e(iually with" Mrs. Moorer and Mrs. Keitt, 
 •who were in being at the death of the tes- 
 tator." They do not charge that there was 
 any fraudulent nnsrepresentation or conceal- 
 ment on the part of the defendants, or that 
 they were in any way instrumental in nds- 
 leading them. If such a charge had been 
 made, it was not supported by the evidence. 
 All the parties iu the settlement seemed to 
 have acted in good faith, and honestly to 
 have fallen into a common error. Mr. Gram- 
 bling, who was the ordinary of the district, 
 was requested by Andrews to make out a 
 statement preparatory to a settlement be- 
 tween himself and Moorer. The only instruc- 
 tious given were that the statement of the 
 account should be made out according to the 
 terms of the will, and the returns of the ex- 
 ecutor. He did uot express his views as to 
 the construction of the will, or on the ques- 
 tion whether the after born children were en- 
 titled to share with those who were in beiug 
 at the testator's death. The witness was 
 sinqily re<iuested to make the statement of 
 the account according to the will and the re- 
 turns, with one exception, iu which Andrews 
 erroneously supposed he was making a gen- 
 erous concession. The testator had on hand 
 at his death five thousand dollars in si)ecie, 
 which he disiK)sed of in the seventh clause of 
 his will, and which he forbid being put out 
 at interest. Disregarding the injnbition. An- 
 drews had loaned out the specie, and had 
 made interest on it, and was willing to be 
 charged with interest. Except iu regard to 
 this, Grambling was to state the account ac- 
 cording to the will and the returns. 
 
 Grambling thought all the testator's grand- 
 
 143
 
 »354 
 
 4 RICHARDSON'S EQT'ITY REPORTS 
 
 *354 1 
 
 children were enti*tle(l to share equally, and 
 stated the account upon this principle of con- 
 struction. He retained the same opinion as 
 to the proper construction of the will to 
 the time of his giving evideu-ce on the trial. 
 Thus the settlement was made bona fide by 
 the parties to it, and by their accountant. 
 There was no ignorance, mistake, misreijre- 
 sentation, or concealment of the facts of the 
 case. The only facts necessary to be known 
 were the provisions of the will, and the re- 
 turns of the executor — the fairness and ac- 
 curacy of which are not questioned. These 
 facts were in the possession of the complain- 
 ants, or were accessible to them. The ground 
 on which complainants claim to be relieved 
 is sinq)ly ignorance of law; or, in other 
 words, ignorance of the true legal construc- 
 tion of the will. But ignorance of law does 
 not entitle one to open a settlement formally 
 and solenmly made. And it would be unsafe 
 in the extreme to allow a settlement to be 
 opened, and a formal discharge set aside, on 
 ac(?ouut of an erroneous construction of the 
 will or instrument under which it arises. 
 If thi*5 rule were to prevail, no such settle- 
 ment would be binding and conclusive, unless 
 made under a decree of the Court. 
 
 Is there any authority which goes so far 
 as to say that a party is entitled to relief 
 from a mistake of law, where there is no 
 fraud, misrepresentation, management, or 
 undue intluence, and where the mistake was 
 simply his own errt)neous construction of a 
 will or deed? In this case the parties seek- 
 ing relief had the will before them. They 
 were familiar with its provisions. The de- 
 fendants did not seek, in any way, to im- 
 pose their construction of it upon the com- 
 plainants. It does not appear that they ex- 
 pressed any opinion as to its proper construc- 
 tion. If the parties now complaining, pos- 
 sessed as they were of all the facts of the 
 case, and with the will before them, had ap- 
 plied to the proper sources of information 
 and had sought legal counsel, they would 
 have been advised as to the true construc- 
 tion of the will ; and if their legal adviser 
 himself had entertained doubts, he would 
 have said that it was a proper case for the 
 consideration and judgment of the Court. 
 Their not pursuing this course was laches ou 
 *355 
 
 their part, *against the consequences of 
 which the Court is not bound to protect them. 
 Where one interested in a will undertakes 
 to construe it for himself, and construes it 
 erroneously, or adopts the erroneous con- 
 struction of another, and predicates a set- 
 tlement and discharge on such construction, 
 he is not entitled to open the settlement in 
 consequence of such errors. He must abide 
 the consequences of his misconstruction ; 
 provided, of course, there be no fraud, man- 
 agement, or undue intluence employed to in- 
 Acigle him into the settlement. The case is 
 
 144 
 
 not materially altered where both parties 
 have fallen into the same error. A miscon- 
 struction, like that made out in this case, is 
 rather an error of the judgment, than a 
 mistake either of the law or of fact. 
 
 The simple misconstruction of a will or 
 deed, where there is no fraud or circum- 
 vention, cannot be regarded in any point of 
 view as coming within the scope and author-^ 
 ity of those cases where mistakes at law, in 
 contradistinction to ignorance of law, have 
 been considered as affording grounds for re- 
 lief. It is a cardinal theory of the law, 
 founded upon a necessary policy, that every 
 one is presumed to have a knowledge of its 
 principles. This presumption prevails as 
 well in reference to civil rights as in the 
 criminal code. Without this doctrine, no 
 system of law can practically fultill the ends 
 of its institution. If a man learned in the 
 law has before him the will or deed in which 
 he is interested, is he not possesse<l of all 
 the information, both as to the law and the 
 facts, which will enable him to arrive at a 
 just conclusion? If such a man were to fall 
 into an error of construction, could he call 
 upon this Court to relieve liim from a con- 
 tract or a settlement based upon such mis- 
 construction? The rule that would apply 
 to the case of such a man would appiy to 
 one not quite so eminent in legal attain* 
 ments ; and in fact to every other person 
 legally competent to enter in such transac- 
 tion. By what standard will the Court un- 
 dertake to measure the intellects of men, or 
 what graduated scale will it apply to ascer- 
 tain the extent of their legal knowledge? 
 Upon what process or principle could it be 
 determined that one man had enough legal 
 
 *356 
 
 knowledge, and another *had not enough to 
 enable him to give a proper construction to 
 the will? In a case lilve this, there is but one 
 resource. All must lie in the same Procrus- 
 tean bed. All must be supposed to be alike 
 informed. All must bear the consequences 
 of their misconstruction; though in some 
 cases it would be the error of an enlighten- 
 ed, and in others of an unenlightened judg- 
 ment. In the opinion of the Court the com- 
 plainants have failed to make out a case 
 which would entitle them to have the releas- 
 es set aside and the settlements oi>ened. 
 
 There is another view of the case yet to 
 be presented. The settlement with the com- 
 plainant, Moorer, was made the 13th Decem- 
 ber, 1841, and that with the complainant, 
 Keitt, the 21st January, 1843. Both the bills 
 were filed the ISth December, 1851. The de- 
 fendants have not pleaded the statute of lim- 
 itations, nor insisted thereon in their an- 
 swers. It is needless to say, that the statute 
 would have been applied if the same had 
 been pleaded. But the defendants insisted 
 that the complainants, if their complaint 
 had been otherwise well founded were too 
 late in their application to the Court for
 
 BAIiLARD V. ^rcKEXXA 
 
 *358 
 
 relief; that their claim was stale, ami the 
 settlement had reuiained uniiuestioned for 
 too lonji a time to be now disturbed. The 
 complainants, Moorer and wife, had ac-qui- 
 esced for more than ten years; and tlie eom- 
 jilainants, Keitt and wife, for nearly eight 
 years before they soutrht relief in this Court. 
 Durins: the whoh' of this lon'.i interval, they 
 have had as ample means of information as 
 to their rij^hts as they have at the present 
 time. There is no informatinn of wliich they 
 are now possessed, whieh they did not pos- 
 sess or have tlie means of possessinjr, imme- 
 diately after, or even l)efore the settlement. 
 In my opinion thi>y have come too late, far- 
 ties desirous of openini: settlements on the 
 ground of errors and mistakes, where the 
 facts are all within tlu'ir knowledge, uuist 
 make haste in their application to the Court 
 for relief. Their loiiir acquiescence amounts 
 to a presumed ratification. The views of an 
 eminent American commentator on this sub- 
 ject are so well e.\'presse<l, and are so perti- 
 nent to the question, that it will be suth- 
 cient to conclude my discussion by (pioting 
 his language. 
 
 *357 
 
 *"It is a most material ground." he says, "in 
 all bills for an account to ascertain whether 
 they are brought to open and correct errors 
 in the account recenti facto: or whether the 
 application is made after a great lapse of 
 time. In cases of this sort, where the de- 
 mand is strictly of a legal nature, or might be 
 cognizable at law. Courts of Erpiity govern 
 themselves by the same limitations as to en- 
 tertaining such suits, as are prescribed by the 
 statute of limitations in regard to suits at 
 common law in matters of account. If. there- 
 fore, the ordinary limitation of such suits at 
 Jaw be six yea in. Courts of Ecpiity will fol- 
 low the same period of limitations. In 
 doing so, they do not act in cases of this sort, 
 (that is, matters of concurrent jurisdiction,) 
 so much in analogy to the statute of limita- 
 tions as positively in obedieni-e to the stat- 
 ute. Hut when the demand is not of a legal 
 nature, but is purely etiuitable. or where the 
 bar of the statute is inapplicable. Courts of 
 Equity have another rule, founded some- 
 times upon the analogies of the law where 
 such analogies exist, and sometimes upon its 
 own inherent doctrine, not to entertain stale 
 or antiquated demands, and not to enc(mr- 
 age laches or negligence. Hence, in matters 
 of account, although not barred by the stat- 
 ute of limitations. Courts of Equity refuse 
 to interfere after a considerable lap.se of 
 time, from considerations of public policy, 
 from the didiculty of doing entire justice, 
 and from the consciousness that the repose 
 of titles and the security of property are 
 mainly promoted by a full enforcement of the 
 maxim, vigilantibus. non dormientibus. jura 
 subveiiiunt." 1 Story Eip § HJM. and the cas- 
 es cited. 
 
 It is ordered and decreed, that the bill of 
 (Jeorge D. Keitr and wife against James J. 
 Andrews and wife, be dismissed. It is also 
 ordered and decreed, that the bill of Henry 
 .M. .Moorer and wife, against the said James 
 J. Andrews and wife, be dismissed. 
 
 The coujpbiinants appealed, on the u'ronnd: 
 Because the said settlements and discharg- 
 es were founded on such mistake of law. as 
 
 ♦368 
 rendered them no bar to the relief *[irayed 
 for by the complainants, and such relief 
 should have been granted. 
 
 Hutson, for complainants, 
 (i lover, contra. 
 
 PEH CURIAM. This Court concurs in the 
 Chancellor's decree, which is hereby attirm- 
 ed, and the appeal dismissed. 
 
 JOHNSTON, DUNKIN. DAUCJAN and 
 WAHDLAW. CC, concurring. 
 Appeal dismissed. 
 
 4 Rich. Eq. 358 
 THO.MAS 1'.ALL.V1H> v. WIEEIAM .M. KEX- 
 
 NA and Others. 
 (Columbia. M.iy Term. In.VJ.i 
 [Insane Persons <£=>74.] 
 
 H. of Lancaster district, kiiowin- that M. 
 of (ieorgia wjis entitled to a distril)iitive share 
 of the estate of A., who died intestate in Lan- 
 caster district, went to (Jeorgia, and tiiere en- 
 tered into a written contract with .M.. (whose 
 Iwnaey. if lie was a lunatic, was unknown to 
 H.. I whereby M. agreed to give to H. one-lialf 
 tif his share in tiie estate, upon B's. prosecuting 
 the chiim, at his own expense, to a siiccessfid 
 j termination. Ji. returned to Lancaster, and 
 tliere prosecuted tlie claim successfully. M. 
 died. and. on bill filed, his heirs in»iieaciie<l the 
 contract between li. and M. on the grounds (1) 
 of fraud, (l!) that the consideration was exces- 
 sive, and (."!) of .M.'s insanity. The Ci.uit over- 
 ruled the two first grounds, ordered an issue 
 at law upon the third, and lichl that, if the 
 lunacy should be established, still H. would be 
 entitled to just and reasonable couiiiensatiou for 
 his services. 
 
 I Ed. Note.— For other cases, see Insane Per- 
 sons, Cent. Dig. S§ ll.'(>. lliT: Dec. Dig. <S=374.J 
 
 [Insane Persons <©=T4.] 
 
 If one enters, in good faith, into a contract 
 with a lunatic, without a knowledge of Ins lun- 
 acy, and. in pursuance of the contract, renders 
 him important services, whereby li(> is ;;reatiy 
 benefitted, though the contract be void, the par- 
 ty rendering the services is entitled to just and 
 reasonable comjiensation. 
 
 [I^l. Note.— Cited in Sims v. McLure, 8 Rich. 
 E(i. L'SS, 70 Am. Dec. llHi. 
 
 For other cases, see Insane Persons, Cent. 
 Dig. § 12U; Dec. Dig. <©=>74.] 
 
 Before Wardlaw, Ch., at Lancaster, June, 
 
 isr.L 
 
 Wardlaw, Ch. The main controversy be- 
 tween the parties, subndtted to my decision, 
 is as to the execution, specifically, of a con- 
 tract between Wm. Miller and Thomas Bal- 
 lard. l)y which the former agreed to give the 
 
 ©=5For other cases see same lopic aud KliV-.NLMBEU in all Key-Numbered Digests and Indexes 
 
 4 Rich. Eq.— 10 
 
 145
 
 ^358 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 latter one-half of liis distributive portion 
 in the estate of Anna McKenna, upon the tat- 
 ter's prosecuting, at his own expense, the 
 claim to a successful ternunation. 
 *359 
 
 *Under a marriage settlement between Wil- 
 liam McKenna and Anna his wife, a sep- 
 arate estate was secured to Mrs. McKenna. 
 She died intestate, February 26, 1848, leav- 
 ing as distributees, under the Act of 1791, 
 her husband, entitled to two-thirds, and her 
 uncle, William Miller, to one-third, of a real 
 estate, valued at $3,000, and of a personal 
 estate valued at $15,000. On April 28, 1S4S, 
 the contract in question was made between 
 Miller, an inhabitant of Butts county, in the 
 State of Georgia, and Ballard, a citizen of 
 Lancaster, and the son of a pre-deceased sis- 
 ter of Miller ; the contract being made In 
 Butts county, and the intestate having re- 
 sided and died in Lancaster district. In Au- 
 gust, 1848, Ballard, administered upon the 
 estate of Anna McKenna, and soon after- 
 wards filed a bill as administrator against 
 William ^IcKenna, for an account of the 
 estate of intestate. At June Term, 1849, 
 Chancellor Dunkin heard this cause, decreed 
 an account, ordered that Miller should be 
 made a party, and gave leave to any party, 
 when Miller should be properly before the 
 Court, to apply for an order for partition of 
 the estate of intestate. In pursuance of this 
 decree the bill was amended by naming Mil- 
 ler as a defendant, but before any answer 
 from him, or order pro confesso against him, 
 namely, October 15, 1849, Miller was found 
 a lunatic by inquisition in Georgia, and was 
 committed, as a pauper, to the lunatic asy- 
 lum at Milledgeville, where he died in April, 
 1850. The present bills were filed Septem- 
 ber 9, 1850, in one of which plaintiff seeks re- 
 vivor of the former suit and partition of the 
 personalty of intestate, and in the other he 
 seeks partition of the real estate of intes- 
 tate ; the parties being, besides Ballard and 
 William McKenna, the children and hus- 
 bands of children of William Miller. In 
 these bills for the first time, the plaintiff, 
 Ballard, brings forward his contract, with 
 Miller, and claims that one-half of Miller's 
 share shall be assigned to him in the parti- 
 tion of the estate of intestate. William Mc- 
 Kenna, in his answers, assents to the parti- 
 tion decreed at June session. 1849, but pro- 
 tests against the being burdened with the 
 expenses of the controversy between the plain- 
 
 *360 
 lift' and his co*defendants. The other de- 
 fendants assent also to the partition be- 
 tween William McKenna and themselves, but 
 they deny the validity of the contract be- 
 tween Miller and the plaintiff", and insist 
 that, at the date of that contract. Miller did 
 not have mind enough to make him compe- 
 tent to contract, and that, under all the cir- 
 cumstances, the contract is unconscientious 
 and inequitable. 
 
 The litigation in tlie original cause of Bal- 
 
 146 
 
 lard V. McKenna, was not expensive nor pro- 
 tracted, as the case was heard upon a state 
 of facts admitted, and no appeal was prose- 
 cuted, although notice of appeal was given. 
 McKenna, who is represented to be shrewd 
 and pei'tinacious in the maintenance of his 
 rights, it was supposed before suit, had se- 
 cured in some way his exclusive right to his 
 wife's estate; yet Ballard was advised by 
 his counsel in this State and in Georgia, be- 
 fore he made the contract with Miller, that 
 Miller's right to distribution in the estate of 
 Mrs. McKenna was clearly valid. 
 
 The evidence as to the competency of Miller 
 to contract on April 28, 1848, when the agree- 
 ment between Ballard and himself was exe- 
 cuted, is very voluminous, and mostly taken 
 by commissions. On the part of the plaintiff, 
 James II. Starke, an intelligent and respect- 
 able member of the profession, now occupy- 
 ing the post of Judge of the Superior Court 
 in Georgia, testifies that he drew the agree- 
 ment in question, at the instance of Miller, 
 his son-in-law Glass and Ballard, and advis- 
 ed its execution ; that Miller, separately 
 and intelligently, explained the circumstanc- 
 es of the matter, and took his counsel ; that 
 he had previously been Miller's counsel, and 
 knew him intimately, and that Miller well 
 understood what he was doing, and made a 
 reasonable contract. I know something of 
 Judge Starke by reputation, as he was 
 brought up and acquired his profession in the 
 same district with myself, and I cannot 
 doubt the sincerity of his statements. In ad- 
 dition to his testimony, the plaintiff furnish- 
 es evidence that Miller was a poor old man, 
 having no pecuniary means to carry on a 
 law-suit, especially in a different State from 
 that of his residence, and living with his sou- 
 
 *361 
 in-law, Glass, and that Ballard *first inform- 
 ed him of his rights in Mrs. McKenna's es- 
 tate ; and that Glass, and his wife, son-in- 
 law and daughter of Miller, in letters and 
 orally, have declared that Miller, at the 
 time, was competent to contract, and that he 
 made a fair contract with Ballard. On the 
 side of the defendants, seventeen witnesses, 
 including a lawyer, a physician, ministers of 
 the gospel, farmers, merchants and mechan- 
 ics, swear positively that Miller was dement- 
 ed without lucid intervals for several years 
 before the date of the agreement with Bal- 
 lard, and state sufficient reasons, in the con- 
 versation and conduct of Miller, for their 
 opinion of his insanity. Two of these wit- 
 nesses, son and daughter of Glass, by a for- 
 mer wife, not the daughter of Miller, make 
 by their testimony a case of positive fraud 
 against Ballard, stating that he was premon- 
 ished by Mrs. Glass, of her father's insanity, 
 and that he falsely represented the value of 
 Mrs. McKenna's estate, and that he was an 
 equal heir with Miller therein. If I consider 
 the case as depending entirely upon the tes- 
 timony of these two witnesses, I might direct 
 an issue to a jury, but such is not my view.
 
 BALLARD v, McKENXA 
 
 •364 
 
 Rt>fore indicating my opinion, however, I may 
 t'lirtlHT mention tliat tlie iiliysician wlio was 
 examined as a witness, ascribes the im- 
 becility of Miller's mind to the physical 
 cause, of a softening of the brain; and that 
 I'.Mllard. on Sei)tember L'l, 1849, wrote a let- 
 ter to Glass, informing him of the progress 
 of our law-suit; and desiring t() know how 
 uncle Miller's mind is, and whether uncle 
 recollects me (B.) being at your ((J's.) house 
 on the occasion of the agreement; yet this 
 letter was writti'ii after I'.allard had been in- 
 formed by letters from (Jlass and wife, that 
 some of Miller's children impeached the con- 
 tract on account of Miller's insanity. 
 
 One wlio seeks the specific execution of a 
 contract is liound to satisfy tiie judicial dis- 
 iretion of the Chancellor, that the contract 
 is fair, just and reasonable. In the present 
 case, from the testimony, I cannot, in con- 
 science, declare that I am satisfied of Wm. 
 Miller's mental sutticiency to contract on 
 April JS, 1S4S. nor that liallard did not mis- 
 represent himself as an e<iual distributee 
 with Miller in Mrs. McKeuna's estate. 
 
 *362 
 
 ♦Waiving these considerations, the contract 
 is infectiil with tiie taint, so grievous at the 
 common law, of champerty and maintenance. 
 It secures to Ballard an innnoderate compen- 
 sation for liis services, and it places his in- 
 dividual interests in conflict witli Ids duty 
 as trustee in the administration of Mrs. 
 McKenna's estate. I cannot support the 
 plaintiff's claim to a partition of the spoils, 
 although I am not indisposed to allow liiin 
 compensation beyond his commissions, if I 
 l»elieved I iiad any discretion in the matter. 
 
 It is ordered and decreed, that the decree 
 of Chancellor l>unkin. for an account of 
 the estate of Anna McKenna. be revived: 
 and that a writ of partiticm. to divide the 
 lands and chattels of Mrs. McKenna. in the 
 jiroportion of two-thirds to her luisband, 
 and one-third to the distributees of William 
 .Miller, dtneased, be issued, to be directed to 
 comndssioners, named by tiie parties, and the 
 Connni.ssioner of this Court. It is further 
 ordered, tliat the costs of the account and 
 liartition be paid out of the estate, according 
 to the interests of the parties, and that the 
 costs of the controversy between the plaintiff 
 and the distributees of Miller, be paid by the 
 I.Iaintiff. 
 
 The plaintiff appealed, on the following 
 grounds: 
 
 1. Becau.se. under the evidence, it is re- 
 spectfully subnntted, his Honor slionld have 
 ilecreed a specific iiert'ormance of the agree- 
 ment between Miller an<l the comidainant. 
 
 2. I'.ecause the evidence of Judge Starke 
 clearly showe<I that Miller was competent 
 to contract, and tlid knowingly contract with 
 liallard to give him one-half of the recovery. 
 
 o. Because, even if Miller was a lunatic, 
 the contract was a fair, just and reasonable 
 
 contract, and one to his interest, which 
 sh(tuld be enforced. 
 
 4. Because his Honor, it is respectfully 
 submitted, sliould have ordered an issue to 
 determine the question at i.ssue in the cause. 
 
 5. Becau.se in any point of view, and if 
 even the contract between complainant and 
 Miller .should not Ik? specifically enforced, 
 yet an issue should nave lx>en ordered to a.s- 
 
 ♦363 
 certain what would be 'a fair and reasonable 
 compensation to complainant for his services 
 for Miller. 
 
 G. Because the complainant should not be 
 ordered to pay the costs. 
 
 Hammond. Dawkins. Boyce, for aiipellant. 
 nanna, Clinton, contra. 
 
 The oi)inion of the Court was delivered by 
 
 DAR(;AN. Ch. Anna McKenna. wife of the 
 defendant. Wm. McKenna, by virtue of a 
 deed of marriage settlement between herself 
 and her husl)and, before marriage, had a 
 .separate estate consi.sting, at the time of her 
 death, on the L'Gth February, 184s. of real 
 estate to the amount of $;J000, and of person- 
 al estate to the value of .$ir>.(XXJ. The deed 
 of settlement secureil to her a general power 
 of appointment. lUit this she never exercis- 
 ed, and died intestate, leaving her husliand, 
 the said Wm. McKenna, surviving her. .She 
 left no issue, nor brothers, nor sisters, nor 
 children of brothers or sisters, and her near- 
 est collateral relation was her uncle, one Wm. 
 Miller, of Butts County, in the State of Geor- 
 gia, who. under the law of distributions, was 
 entitletl to one third of her estate, while her 
 said husband was entitled to two thirds 
 thereof. 
 
 Miller received the tirst intimation of his 
 rights, in the estate of Anna McKenna. from 
 tile complainant. Ballard, who also informed 
 him, that his rights would have to be contest- 
 ed in a law suit. Miller was, at that time 
 infirm and advanced in life, penniless, and 
 dependent for subsistence and shelter upon 
 his son-in-law. Pleasant H. Gla.ss. with wliom 
 he resided. From Glass and his wife, who 
 was Miller's daughter, lie received that kind- 
 ness and support due from children to par- 
 ents under those unfortunate cirumistances. 
 
 The com])lainant is the son of a'l)re-deceas- 
 ed aunt of Mrs. McKenna, who was the sister 
 of Miller. Living in the immediate vicinity 
 of the intestate, he became aware of Miller's 
 probable rights in lier estate. I say his prob- 
 
 *364 
 able rights; for although it ♦was very clear 
 tiiat Miller was a distributee: as a matter of 
 fact, it was deemed very uncertain whether 
 McKenna would not assert a claim to the 
 whole estate by the deed, or will, of his wife, 
 executed under lier power of appointment. 
 It was also supposed that lie might liave largo 
 claims against his wife's separate estate. 
 
 Witli this information as to the circum- 
 
 147
 
 ^364 
 
 4 RICnAKDSONS Kia'lTY REPOKTS 
 
 stances attending the claim, the coniphiiiunit i 
 made a visit to Miller, in Georgia. His ob- | 
 ject was to make a contract with his nncle, 
 by which he should be authorized to prose- 
 cute his claim for a distributive share of 
 Mrs. McKenna's estate, and to receive his 
 remuneration out of the property to be re- 
 covered. The interview took place at the 
 house of Glass. The complainant proposed 
 to prosecute the law suit at his own hazard, 
 and expense, and to have, as compensation, 
 one half of Miller's share, when it should be 
 realized. The proposal was made, and the 
 negotiation opened in the presence of Glass 
 and his wife, (Miller's daughter). On the 
 next day Ballard, Miller and Glass repaired 
 to the county seat of Butts, for the purpose 
 of having an interview and consultation with 
 Miller's counsel. This gentleman had," for 
 many years before, borne the relation of 
 legal advisor to Miller, enjoyed a distinguish- 
 ed reputation for his probity, and forensic 
 talents and success, and has since been pro- 
 moted to the Bench of the Superior Court of 
 (4eor,:_'ia. T'pon a full discussion, and consid- 
 eration of all the circumstances. Miller was 
 advised, by his learned counsel, to enter into 
 the contract on tlie terms proposed. This 
 was accordingly done. A contract, upon those 
 terms, was then prepared by the counsel, and 
 executed by Miller and the complainant. It 
 was dated the 2Sth April, 1S4.S. 
 
 The complainant then returned to South 
 Carolina, administered upon the estate of 
 Mrs. McKenna, hied a bill in Equity against 
 the defen;lant, and prosecuted the same to a 
 hearing and judgment. The decree adjudged 
 that the marital rights of ^IcKenna had not 
 attached upon Mrs. McKenna's separate es- 
 tate, tliat she died intestate as to the same, 
 that it was subject to partition among her 
 heirs at law and distributees, that the hus- 
 
 *365 
 band was entitled to two *thirds thereof, and 
 the next of kin to the remaining third, 
 and ordered the administrator to account to 
 the proper parties. About this time Miller 
 died. The complainant became the adminis- 
 trator of Miller, hied his bill of revivor 
 against McKenna, making the distributees, 
 of INIiller, parties defendant, and added, by 
 way of supplement, a statement of his claim 
 against tiie estate of Miller under the con- 
 tract of the 28th April, 1S4S; praying that his 
 share, as .secured by that agreement, should 
 be allowed him in tlie settlement and parti- 
 tion among Miller's distributees. 
 
 Tlie claim of the complainant, under his 
 contract, with Miller, of the 2Sth April, 1S4S, 
 has met with an opposition more or less ac- 
 tive, from all the distributees of Miller, with 
 the exception of Pleasant II. Glass and liis 
 wife. 
 
 The claim of Ballard is resisted, by the 
 defendants, on three grounds ; 1st. That the 
 contract was fraudulently obtained : 2d. 
 That the consideration was extravagantly 
 148 
 
 disproportioned to the services to be render- 
 ed, and is .so excessive, that tiie contract, be- 
 ing executory, should not be enforced by this 
 Court; and 3d. That the contract was null 
 and void, in its inception, on account of the 
 insanity of Miller at the time of its execu- 
 tion. 
 
 As to the hrst ground, this Court perceives 
 nothing in tlie evidence by which it may be 
 supported. There was no fiduciary relation 
 subsisting at that time between the contract- 
 ing parties. There was no fraudulent tis- 
 representation or concealment. Tliere was 
 no mis-statement of any kind as to material 
 facts. It seems that he over-estimated Mil- 
 ler's share. One of the witnesses says that 
 he represented the whole estate of ]Mrs. Mc- 
 Kenna at eight or ten thousand dollars. But 
 this is obviously a mistake of the witness. 
 And the Court is disposed to believe the state- 
 ment of the other witness, who testified on 
 this point: who .says that Ballard, in the pres- 
 ence of Glass, represented the share of INIiller 
 at eight or ten thousand dollars. I cannot 
 suppose that this over-estimate of Miller's 
 .share was intentional. This would have a 
 tendency to operate against Ballard in ob- 
 taining the contract on the terms proposed: 
 for in proportion as Miller's probable share 
 
 *366 
 *was magnified, would, one half of it, as re- 
 muneration for the prosecution of the claim, 
 become excessive, and Miller's mind become 
 indisposed to grant such conditions. His esti- 
 mate was nothing but a conjecture, innocent 
 in intention ; for he had no means of know- 
 ing the precise value of the estate, and im- 
 material in its consequences, for it had no 
 tendency to secure him an advantage, but 
 rather the reverse. 
 
 One witness spoke of Ballard as having 
 represented himself to Miller as a co-heir 
 and distributee. I much doubt the accuracy 
 of this witness. He certainly did not so rep- 
 resent himself in the presence of Miller's 
 counsel and his son-in-law, when the agree- 
 ment was made and executed. I can scarcely 
 suppose that he held different language on 
 this point upon the two occasions. And 
 conceding that he did represent himself as 
 co-heir and distributee, I cannot perceive that 
 it would have any material bearing upon the 
 fairness of the contract. Like the other alleg- 
 ed misrepresentation, if it had any material 
 effect, it would be rather to thwart than to 
 aid him in obtaining a favorable contract. 
 For Miller might very well suppose, that if 
 Ballard was a co-heir and distributee, he 
 would at all events prosecute the claim on his 
 own account : and might, under these circum- 
 stances, afford to take a lower remuneration 
 for prosecuting his (Miller's) claim, which 
 depended upon the same facts, and principles 
 of law, and which would, as a. matter of 
 course, be embraced, in the same proceedings. 
 
 This Court is also of the opinion, that the 
 objection to the contract, founded on the ex-
 
 BALLAlll) V. M(K1:NNA 
 
 »369 
 
 cess of the coiisiiloration, is etiuallv unsup- 
 ported. It si'fius U> the Court, that uiuler all 
 the cireuiiistaiices of the case; tiie unrertaiu- 
 ty tliat then existi'd as to tlie result, and the 
 hazards incurred by Hallard. in tlie event 
 tluit tlu' suit was unsuccessful, all of which 
 were entirely assumed by him, tiie contract 
 was fair, just and reasonable. It had the 
 unqualitiiHl api'robation of Miller's son-in-law 
 <<;iass) and his (hui^lifer. with whom he resid- 
 ed and by whom he was supported, upon a 
 full and fair exposition of all the circuni- 
 
 *367 
 
 stances. It was also earnestly ♦reconunended 
 by^is able and experienced coiuisel, who act- 
 ed on tne occasion as muih in the chnracter 
 of a perst)nal friend as a lepvl adviser, and 
 who thought then, and still thinks, that the 
 contract was just and reasonable. In fact it 
 is oidy the fortunate result, that gives it 
 any otlier aspect, even to those who now 
 object to it, and wlio I doubt not would liave 
 approved, if they had been consulted when the 
 contract was made. Finally, it is such a 
 contract as this Court would unhesitatingly 
 enforce by its decree, if it was free from the 
 difficulty involved in the tliird objection 
 above stated, namely, the sanity of Miller at 
 the time of the execution of the contract. 
 
 As to the sanity of Miller at the date of 
 the contract, the evidence is so contradictory 
 and difficult to be reconciled, tlie Court has 
 been able to arrive at uo conclusion satis- 
 factory to itself. — When we regard the evi- 
 dence adduced on this point in behalf of the 
 distributees of ^Miller, it makes a very strong 
 case against his sanity. But, on the other 
 hand, the evidence of Judge Starke, who was 
 his legal adviser, and who drafted the agree- 
 ment, and reconunended him to make it, rep- 
 resents liim upon tliat occasion, as so calm 
 and collected, so fully jiossessed of all the 
 faculties of his understanding, as renders 
 it very difficult to believe that iie was. at 
 that time, laboring under mental alienation. 
 It was Miller who oiiened the discussion upon 
 the subject, as to which the witness was to be 
 consulted. It was Miller who stated all the 
 circumstances of the case, the relationship 
 witii Mrs. McKenna, and with Hallard, and 
 his confhh'uce in the latter from his iK'ing a 
 deceased sister's chibl. He did not occtTl)y 
 the back ground on that occasion, as a luna- 
 tic or iml)ecile would naturally have done, 
 but led the conversation. After making a 
 lucid .statement of the facts, exciting no tlis- 
 trust as to his sanity, an<l his statement be- 
 ing tontirmed by Hallard, he asked the ad- 
 vice of ins counsel. — And on rec«Mvlng a 
 favorable opinion, and being recommended 
 to go into the contract with Hallard on the 
 terms propostxl; not content with this, and 
 witii a shrewdness and delicacy which a 
 lunatic would han'ify have exbibitiMl. he 
 
 *368 
 
 sought a private interview *with lii.s legal 
 
 adviser, where he might liave a freer cou- 
 ferenci'.- — It would l)e very difficult to doubt 
 the veracity or the accuracy of this witness, 
 who for many years before tliis period bore 
 intimate professional relations with Miller, 
 and had the most ample opportunities of not- 
 ing the decadence of ins undi'rstanding. In 
 the view of an intelligent witness who knew 
 him well, and who states not oiiinions merely, 
 but facts. Miller's bearing upon the occasion 
 of the exe<'Ution of the contract, was so rea- 
 sonable, so self-possessetl, so nuicli that of a 
 sane man in every respect, that the Court 
 experiences tlie greatest degree of embar- 
 rassment, when it looks at the great mass of 
 evidence ou the other side, going to sliow 
 that iK'fore that time he was an extravagant 
 lunatic. 
 
 ruder this state of circumstances, the 
 Court is disposed to seek aid and relief from 
 the embarrassment by a resort to the usual 
 mode, namely, an issue Ix-fore a Jury, At the 
 .same time tiiat an issue is ordered, it will be 
 necessary to the ends of justice between 
 these parties, that further orders shall be 
 made. If the final judgment of the Court 
 shall be, that Miller was a lunatic at the 
 date of the agreement, and that the same was 
 not executed during a lucid interval, it fol- 
 lows, as a matter of cour.se, that the instru- 
 ment as a contract is a nullity. Hut it by no 
 means follows, that Hallard will not, in tliat 
 event, be entitled to compensation for his serv- 
 ices, and his risks. If one enters into a con- 
 tract with a lunatic without a knowledge of 
 his lunacy, and the contract is in other re- 
 spects made in good faith; and in pursuance 
 of the contract, renders him important .serv- 
 ices, by which the lunatic receives great bene- 
 tits, though the contract be void, the party 
 rendering the services is entitled to just and 
 reasonable compensation. If an overseer, 
 for example, contracts with a lunatic, with- 
 out knowing him to be such, to superintend 
 his planting interest, and does in fact perform 
 the .services, can it be doubted that he would 
 be entitled to just compensation? Or, if a 
 mechanic, under the like circumstances, con- 
 tracts to build a house on the lunatic's land, 
 and to furnish the materials, ami he does in 
 fact bestow his labor and capital in the im- 
 
 ♦369 
 proveinent of the * lunatic's estate, he is 
 entitled in equity, not to recover upon the con- 
 tract, (which is a nullity, though he was 
 ignorant of the lunacy.) but to 1h^ reiml)ursed 
 to a reasonable extent, provided his labor 
 and capital has improved the value of the 
 lunatic's estate. Anil this upon the principle, 
 that a contract that is void, .should be void 
 as to both parties. And inasmuch, as in the 
 cases supposed, the parties cannot be restored 
 to the statu quo; the mechainc <annot have 
 back his labor and his capital, and the over- 
 seer cannot have restored to liim his .serv- 
 ices and his time consumed in the perform- 
 ance of those services, and their conduct has 
 
 149
 
 *369 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 been bona fide, this Court will aid them in [ 
 obtaining a fair and jnst remuneration, pro- 
 vided their services have been actually beneli- 
 cial to the lunatic. 
 
 On the supiwsition, that Miller shall be 
 found to have been a lunatic at the date of 
 the contract, this appears to be the situation 
 of Ballard. He was ignorant of the lunacy, 
 (so far as it appears,) the contract was fair- 
 ly made, and the compensation was reasona- 
 ble and just as I have before stated. His 
 services under the contract were important 
 and successful. They secured to Miller his 
 distributive share of Mrs. McKenna's estate ; 
 which, but for those services, in all proba- 
 bility he would never otherwise have ob- 
 tained. 
 
 If Miller was not a lunatic. Ballard is 
 entitled to have his contract enforced. And 
 if he (Miller) was a lunatic at the date of 
 the contract, the complainant is entitled to 
 remuneration out of Miller's estate, in his 
 hands, in proportion to the value of the ser- 
 vices rendered, tlie degree of pecuniary re- 
 sponsibility and expenditure incurred, and 
 the time and labor expended. And it is so 
 ordered and decreed. It is further ordered 
 and decreed, that tlie complainant, if tlie 
 issue as to the lunacy of Miller be determined 
 against him, shall have the privilege of going 
 before the Commissioner in Equity of Lan- 
 caster, after due notice to the opposite par- 
 ty or their counsel, for the purpose of ascer- 
 taining the amount of compensation to which 
 *370 
 
 he is entitled on the principles of this *de- 
 cree. And the commissioner is hereby or- 
 dered, on a proper application, to institute 
 such inquiry. 
 
 It is further ordered and decreed, tlial an 
 issue at law be made up to be tried by a 
 jury, in the Court of Common Pleas for Lan- 
 caster district, in wliich the following ques- 
 tions shall be submitted: First, whether 
 William Miller, late of Butts county, in the 
 State of (Jeorgia, was a lunatic on the 28th 
 April, 1848 ; and secondly, if the said Wil- 
 liam Miller was, at or before that time, a 
 lunatic, whether the contract between the 
 said Wni. Miller and Thomas Ballard, dated 
 2Sth April, 1848, was executed by the said 
 Wm. Miller during a lucid interval. 
 
 It is further ordered and decreed, that, in 
 the said issue, the said Ballard shall tile 
 the declaration, and in other respects be the 
 actor in the proceedings. 
 
 It is further ordered and decreed, that the 
 said Ballard shall be entitled to waive the 
 making up and trial of the issue hereby or- 
 dered, (by which waivor he shall be consid- 
 ered as admitting the lunacy,) and go at 
 once before the connnissioner, upon the in- 
 quiry herein before ordered to be made upon 
 the quantum meruit. 
 
 The question of costs is reserved. 
 
 The circuit decree is mudilled in conform- 
 
 ity with this appeal decree. And it is so or- 
 dered. 
 
 .TOIINSTON, DUNKIN and WARDLAW^ 
 
 CC, concurred. 
 Decree modified. 
 
 4 Rich. Eq. 370 
 
 WM. CAMPBELL and S. G. BARKLEY v. B. 
 F. BRIGGS and A. W. YONGUE. 
 
 (Columbia. May Term, 1852.) 
 
 [Jiidf/nicnt <g=;3<i78.] 
 
 Fuur oblinors gave their joint and several 
 sinsle bill, and two of thorn, C. and B., were 
 sued, separately, at law, by the obligee, and de- 
 fended the actions on the ground of fraud and 
 misrepresentation on the part of the obligee, but 
 judgments were recovered against them: the 
 four obligors then paid up the amount of the 
 judgments, and the two who had not been sued 
 at law, J. and D., assigned their interest in the 
 matter to C. and B. : C. and B. then tiled their 
 
 *371 
 *bill against the obligee, seeliing relief on the 
 same ground on which the actions at law had 
 been defended, and. at the trial, used .1. as a 
 witness: Held, that th\v were not entitled to 
 relief, and their bill was dismissed. 
 
 I Ed. Note. — For other cases, see Judgment, 
 Cent. Dig. § 1196 ; Dec. Dig. (S==>l>78.J 
 
 Before Wardlaw, J., at Fairfield, July, 
 1851. 
 
 Wardlaw, Ch. In this bill the plahitifts 
 seek relief from judgments at law obtained 
 against them separately, by the defendant, 
 Briggs, upon a single bill, joint and several, 
 executed by them, together with John Camp- 
 bell and David McDowell, alleging that, in 
 the bargain for the land, which was the con- 
 sideration of the obligation, the obligors 
 were overreached by the false and fraudu- 
 lent representations of Briggs, by words and 
 tokens, that the land contained a valuable 
 gold mine. 
 
 The contract in question was made March 
 25, 1845, by which Briggs assigned to the 
 plaintiffs and the two other persons above 
 named, long leases he held of the "Love 
 mine," in York district, and received their 
 obligation for the payment, on January 1, 
 1847, of $1,000, with interest from June 1, 
 1847. Briggs, after the day of payment, 
 sued, separately, in the Court of Common 
 Pleas for Fairfield two of the obligors, the 
 present plaintitfs; the defendants at law set 
 up his fraud in the transaction by way of 
 defence, but he obtained judgments against 
 them at Fall Term, 1848. On these trials 
 no attempt was made to use the testimony 
 of John Campbell and William Campbell, 
 who were the principal agents in the nego- 
 tiation with Briggs. On INIarch 31, 1849, 
 these judgments wei-e satisfied by payments 
 to Yongue, the clerk of the Common Pleas, 
 (no executions having been lodged with the 
 sheriff.) by equal contributions from the four 
 obligors. On the same day J. Canqjbeli 
 
 150 
 
 <S;=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 CAMPBELL V. BRKiCS 
 
 *374 
 
 ;>iiil D. McDowell assi-iiod all their intorcst 
 ill the iiijitrer to tho present plaiiititts, and 
 this hill was fikMl. No allej-'ation is made in 
 tiu' i)ill of any surpriso or frand in the tri- 
 als, nor of any newly discovered evidence, 
 nor of any special insnttlcieney in the trii)U- 
 nal which (h'terniined the cases, nor of any 
 i'ircunistances wliatsoever, producinj: mani- 
 fest injnstice to the defendants at hiw; and 
 
 *372 
 the appeal to this Court is rested ♦altoReth- 
 er on tlie f,'round that John and William 
 Camphell were incompetent witnesses at hiw. 
 Tlie snl)stantial aim of this hill is for a 
 new trial in this fornm of an issne already 
 adjudicated hy a Court of competent juris- 
 diction. Actual fraud as fully vitiates a 
 contract in the Court of Law as in the Court 
 of Kipiity; and this Court follows the Court 
 of Law in questions as to the competency 
 of witnesses, with some exceptions, irrele- 
 vant to the present case, as to parties to the 
 suit. Ai)art from the answer, which increas- 
 es hy its demands the proof required from 
 the plaintiffs, the plaintiffs are in no better 
 condition here as to remedy, and in worse 
 condition as to evidence, than in the Court 
 of Law. In the case at law against Barkley, 
 loth of the Campbells, John and William, if 
 coiiqietent in either Court, mij,'ht have been 
 used for Barkley; and in the case at law 
 a;j:ainst William Campbell, John Camphell, 
 relied upon in the present case, was as com- 
 petent as here. 
 
 Dropping the question as to William Canip- 
 bcll's comjietency as inunaterial, on what 
 ground is it supposed that John Campbell 
 was not a competent witness in the case at 
 law? None is suggested, except that he was 
 maker with the persons sued, of the single 
 bill sued upon; yet not occupying the rela- 
 tion of iirincipal to them as sureties. He 
 was no party to the records; he was not 
 lialile t'nr the cost of the cases; his testimo- 
 ii.\ cdiild not affect his own liability upon 
 llic instrument. Under these circumstances, 
 he would seem to be a competent witness, 
 even without release. In Cleveland v. Cov- 
 ington, :i Strob. 1S4, it was held, that where 
 (he principal in a single bill is liable for the 
 (osts of his surety, he is, on that ground, 
 an inconqietent witness for the surety, when 
 Mued by their conmion creditor ; but the de- 
 cision is jiut upon his direct interest in the 
 event of the suit, and the old notion of his 
 incompetency, as a party to the instrunu'ut, 
 is repu<liated. See Knight v. I'ackard, 3 
 McC. 71; ilarmim v. Arthur, 1 Bail. S3. In 
 Leech v. Kennedy, 3 Strob. 488, it was ex- 
 pressly decided that one of the makers of 
 a single bill, not sued, nor liable, as prin- 
 cii>al, for costs, was competent to prove the 
 
 *373 
 signa*ture of another maker to the instru- 
 ment ; and the general doctrine is recogniz- 
 ed, that a surety, in a joint and several note 
 or bond, as he is not liable for the costs of 
 
 his principal, is a good witness for plaintiff 
 or ilefen<lant, in a separate suit against the 
 Iirincipal. In all legal incidents that case 
 is identical with the one before us. Granting 
 that this diM-trine may be doubtful where 
 there is no release. tDogan v. Ashby, 1 Strob. 
 4.3.3,) rules, that where the surety in a single 
 bill releases the principal maker from all 
 liability, this will render the principal a com- 
 petent witness for the surety. The assign- 
 ment or release subsequently executed, which 
 it is sui»i)o.sed makes John Campbell a com- 
 petent witness here, might have been execut- 
 ed on the trials at law. I know of no pe- 
 culiar facilities in this Court for rendering 
 witnesses competent through releases or as- 
 signments. The rules of evidence are the 
 same in both Courts; or rather, in this mat- 
 ter, equity follows the law. 
 
 I may remark, without intending to imply 
 that this w(mld have the «»tTect of destroying 
 his competency as a witness, that John 
 Campbell should have been made a Piirty to 
 this suit. The assignor of a debt, or right, 
 not transferable at law, must be a party to 
 any suit in e<iuity respecting it by the as- 
 signee. Cathcait v. Lewis, 1 Ves. lun. 403; 
 Walburn v. Ingilby, 1 M. and K. 61. The 
 device of procuring an assignment from a 
 party in interest, with the view of dropping 
 him as a party to the record, and of us- 
 ing him as a witness, savors too strongly 
 of maintenance to deserve encouragement. 
 Strob. Imj. § 104S; Hopkins v. Hopkins, MS. 
 [4 Strob. I']q. 207, .^3 Am. Dec. (MJ3]. 
 
 It is superfluous to argue that the fraud, 
 which is the ground of this bill, if sustained 
 by proof, would have been available as a de- 
 fence to the suits at law. 
 
 If the defendants there considered their 
 evidence insuflicient without the aid of dis- 
 covery from Briggs. they ought, in the ex- 
 ercise of proper diligence and attention to 
 their interests, to have made a more timely 
 application to this Court. If a defendant has 
 omitted" to file a bill for discovery of facts 
 known to him and material to his defence, 
 and has suffered the case to go to trial 
 
 *374 
 ♦without adequate proof of such facts, he 
 cannot afterwards claim an injunction or a 
 new trial from a Court of I^iuity ; for it 
 was his own folly neither to have prepared 
 himself with such proof, nor to have lileil a 
 bill for discovery and to have procured a 
 stay of the trial until discovery. Story Eq. 
 § 805 ; Winthrop et al. v. Lane et al. 3 Des. 
 324. 
 
 In the just and satisfactory administration 
 of law, every party should have the opportu- 
 nity of fairly presenting his claim or defence 
 for adjudication Ijefore a tribunal of com- 
 petent authority; but when he has once had 
 such opportunity, the jieace of society, the 
 claims of other litigants to the attention of 
 the Courts, and other elements of policy, 
 require that he should forbear from further 
 
 151
 
 *374 
 
 4 RICHARDSONS EQUITY REPORTS 
 
 clamor. From the inattention of parties, 
 the oversights of counsel, the infirmity of 
 Judges, and other casualties, exact justice is 
 rarely done in contested cases ; but general 
 justice to the connnunity demands that an 
 end should be put to litigation. Courts of 
 Equity will not interfere after a verdict at 
 law, where the case in equity proceeds upon 
 a defence equally available at law, unless 
 some special ground of relief be established, 
 such as fraud or surprise, or manifest injus- 
 tice in the trial at law. vStory's Eq. § 894. '5, 
 '6; Maxwell v. Connor, 1 Hill Eq. 22; Gist v. 
 Davis, 2 Hill Eq. 34(3 12!) Am. Dec. 89]; 
 McDowall V. McDowall, Bail. E<]. 330. The 
 negligence or mistakes of the party or his 
 counsel, or even supposed error in the Court 
 of Law, do not constitute such special ground 
 of relief here. Ware v. Horwood, 14 \'es. 
 30; O'Keefe v. Rice, Bail. E(i. 180; Max- 
 well V. Connor. 
 
 I am of oiiinion that the plaintiffs have 
 not made a case entitling them to be twice 
 heard; and that, on this ground, the liil) 
 nmst be dismissed. 
 
 Having attained this conclusion, I deem it 
 unnecessaiy to state at length the other facts 
 t.nd pleadings in the cause. A single wit- 
 ness, John Cauqjbell, testifies to a case of 
 fraud, on the part of Briggs, in the bargain 
 for the land. The answer positively denies 
 the fraud ; and upon the general rule the 
 answer must stand as proved, unless cou- 
 
 *375 
 Iradicted by two witnesses, or one *witness 
 with such circumstances of corroboration as 
 have the force of another witness. In my 
 judgment, the other evidence in the case 
 rather impairs than corroborates John Canqj- 
 lieli's testimony. The only circumstance of 
 corroboration relied upon, is that stated by 
 Dr. John W. Canq-bell, that from the dilajn- 
 dation of the mill and the appearances 
 about it, Briggs could hardly have collected 
 through the mill a small bar of gold, which, 
 in the course of the negotiation, he exhibited 
 as recently obtained from the L<jve mine. 
 This, at most, raises suspicion where the proof 
 should be clear. Briggs did not say he ob- 
 tained the bar by grinding, and possibly may 
 have obtained it by panning. J. Campbell 
 is contradicted, in various particulars, by 
 other witnesses, although he seemed to be 
 a respectable and intelligent per.son. One 
 fact however, Is, of itself, conclusive, where 
 the opposing testimony is so feeble. The 
 plaintiffs purchased, after a full opportunity 
 of examining the mine, and after testing its 
 (jualities to their own satisfaction, and with 
 much deliberation. This is partly admitted 
 by Campbell, and is more distinctly proved 
 by Black and Whitesides. Unless the evi- 
 dence of deceit was much more decisive, it 
 nuist be held that the plaintiffs purchased on 
 their own judgment. 
 
 It is ordered and decreed that the bill be 
 dismissed. 
 152 
 
 The complainants appealed, on the follow- 
 ing grounds: 
 
 1. That the trial at law was no let or 
 bar to the recovery and relief sought bj' the 
 complainants in a Court of Eijuity. 
 
 2. That the testimony showed a knowl- 
 edge, in defendant Briggs, that the Love 
 mine was wm'thless, and that he falsely rep- 
 resented the same, in divers ways to com- 
 plainants, to be a good and valuable mine, 
 before he sold. 
 
 Buchanan, for appellants. 
 Thompson, contra. 
 
 The opinion of the Court was delivered by 
 
 DT^XKIX. Ch. The argument of this ap- 
 peal has been placed mainly upon the ground, 
 that John Campbell was an inconqietent wit- 
 ness in the trial at law, but that he has 
 
 *376 
 become competent in *this case in conse- 
 <iuence of having paid his proportion of the 
 judgment recovered against t\w complain- 
 ants, and of having "assigned his interest in 
 the matter" to the conqjlainants. The in- 
 strument of assignment is not before us; 
 but it is not easy to perceive what right of 
 acti«m he could have against the defendant, 
 Briggs. who had never inq)leaded him. This 
 Court deem it. however, unnecessary to ex- 
 press any opinion, as to the conqietency of 
 John Campbell in the trial at law. If he 
 were competent, it was the duty of the com- 
 plainants to have proposed him as n witness, 
 and it nuist be presumed that his testimony 
 would have been received. But. assuming for 
 the purposes of the argument, that as one of 
 the principal obligors in a joint and several 
 bill, John Campbell was inconqietent to testi- 
 fy in behalf of his co-obligor, why might 
 not the same process have been resorted to 
 for restoring his competency, which has been 
 since adopted, or why was he not rendered 
 conqjetent by a release from his co-obligor? 
 It is said, and truly said, he was not bound 
 to release him. But, if a witness is called 
 to the stand, and successfully objected to, 
 on the ground of interest, which he declines 
 to release, is it any ground for a bill in 
 equity on the part of the unsuccessful liti- 
 gant, in behalf of whom he was called, that 
 he has since paid the witness his debt, and 
 thus extinguished his interest, and desires 
 the benefit of another hearing with this 
 additional evidence? Or, would it make any 
 difference that the witness, rejected as in- 
 competent at the trial, had, after the trial, 
 voluntarily released his interest, and there- 
 by rendered himself competent to testify on 
 another hearing of the cause? If the prin- 
 ciple were recognized it is easy to conceive, 
 that a party would rarely want the advan- 
 tage of a trial in chanceiT, not in conse- 
 quence of newly discovered, but newly creat- 
 ed, testimony. 
 
 Nor is this, perhaps, the strength of the
 
 HAY V. IIAY 
 
 •379 
 
 olM'i'ctioii to the foinplainants' proeof^ding:. 
 Suitstaiirially they seek to recover hack not 
 only what Miey have themselves paid, hut, as 
 assisnees, wliat lias lieen paid hy Jnlm Cami)- 
 lipll and the other <•<>-( >1 ill ir.>r. John Caiiii)- 
 Itell was not only a in-incipal in llic oldi^'a- 
 
 *377 
 tion. hut the chief *actor in tho transaction. 
 He so refiarded himself, and either volun- 
 tarily or involuntarily paid his ]»roportion of 
 the judjL'ment. and then assigned, what he 
 rails his interest in the matter, to the de- 
 fendant.s in the suit, his co-obligors, who are 
 the complainants in this hill. Why miylit 
 not the defendants in the jtulfiment, with 
 equal i)ropriety. after Judum.Mit rendered 
 and payment by them, a.ssi;:n their interest 
 to a stranger, without consideration, and 
 thus enable him to maintain a hill to be sus- 
 tained by the evidence of his assignors? So 
 far iis the <(>miilainants seek to recover the 
 sum.s paid by John Camplxdl and D. :Mc- 
 Dowell, the principle is direetly analogous. 
 The argument is, that they had an interest 
 to recover back the money paid in conse- 
 quence of an erroneous \erdicr. They vol- \ 
 untarily assign that interest, and thereby j 
 qualify theuLselves to testify in behalf of 
 their assignee, an.d the Court is asked to 
 entertain the bill, because, in the .suit at law, | 
 being parties to the record and directly in- 
 terested, the assignors of the coniplainants 
 were incompetent to testify. The Chief 
 Baron of the Exchequei-, in the recent case 
 of Welch v. Faucett, (25tli Feb. 1S52.) adverts 
 to some of the inconveniences of the late Act 
 of Parliament authorizing the admission of 
 parties as witnes.ses, and says, that "the 
 change will necessarily lead to increased 
 litigation:" and that "cases will now be 
 brought into Court which would never have 
 been thought of," and reconnnends that the 
 operation i>f the statute of frauds and per- 
 juries should be extended. But to sanction 
 a bill of this character, would not only in- 
 crease and protract litigation, but would 
 stimulate an angry and unsuccessful suitor 
 at law, by assigning his interest, to set on 
 foot a new proceeding, in which he could tell 
 his own tale and his adversary be indieard. 
 It .seems enough that the diligent researches 
 of the complainat-its' coun.sel have furnished 
 no precedent for these proceedings. 
 
 But. in the trial at law, the complainants 
 resisted the recovery, on the ground of fraud 
 and misrepresention on tin' part of the de- 
 fendant. Briggs. On the evidence submitted, 
 the jury riuidered a verdict for the plaintilf 
 
 ♦378 
 in the suit. In this Court the com*plainants 
 luive had the advantage of the defendant's 
 answer, and al.so of the evidence of John 
 Campbell, and, up<m the (lue.stion of frautl 
 and misrepri'sentation, the ChancelUu- has 
 nrrived at the same conclusion with the jury. 
 1 luler the.se circumstances, it would re<piire 
 
 an extraordinary ca.se of misapprehension 
 to warrant the interference of this Court; 
 l»ut, upon a review of the evidence, we are 
 well .^.atistied with the conclusions of the 
 Chancellor and of the jury. 
 
 The decree is alHrmed, and the appeal di.s- 
 nnssed. 
 
 JOirXSTOX, 1».\K(;ax and NVAIIDLAW, 
 CC., concurred. 
 Appeal <lisnnssed. 
 
 4 Rich. Eq. 378 
 
 ciiabm:.^ c. hav v. frkdekkk j. hay, 
 
 Jr.. ct al. 
 (Columbia. May Term, 1852.) 
 [Wilh <s=>(]12.1 
 
 T.'stator (Icvisfd and bequeathed his estate, 
 real and p.Tsonal. "to his daughter S. B.. and 
 the heirs of her lu.dy. provided if mv said daugh- 
 ter should h,i|)i>on to die without liviiiR issue of 
 her body, then, and in that case, all my said es- 
 tate, both personal and real, to return to the 
 neare.st heirs of my body by mv mother's line- 
 age: Jlcid that, in the personaltv, S. B. took 
 an al)Solute estate, and there was no valid limj/. 
 tation to her issue as i)uichasers. 
 
 r^'^^ol^/^^*'*''-""^''**'^ ^"^ Simons v. Brvce. 10 S. 
 <^. .^(j6; Renwick v. Smith, 11 S C ,3(X>- 
 Gadsden v. Desportes. .'59 S. C. l.'}2. 144 17 
 T^V -V. ""^'' P<?i'son V. Fort, G4 S. C. 508, 42 S 
 E. ;j!)4. 
 
 For other cases, see Wills, Cent. Dij:. S 1387* 
 Dee. Dig. (©=3(312.] - » • . 
 
 I'pon the question ordered to be re-argued, 
 (see :i Rich. Ec]. ^84) to wit, whether, as to 
 the personal estate of the testator, Charles 
 J. Brown, there was a valid liniiration to the 
 issue of his daughter. Mrs. Ihiy, as purchas- 
 ers, this cause was again heard. 
 
 J. T. Aldrich, for Harriet Ford Hay, con- 
 tended, lirst, that thi- limitation over, to the 
 "nearest heirs of my body by my mother's 
 lineage" was not void for uncertainty; that 
 it was manifest the testator intended to lim- 
 it the estate over to his next of kin in the 
 nniternal line; that the Court had only to 
 substitute self for bodj-, and the sentence 
 would then read thus, to the "nearest heirs 
 of myself by my mother's lineage:" and he 
 
 ♦379 
 cited, 1 Jarm. on Wills, *442; Craik v. I^imb, 
 28 Eng. Ch. Rep. 4.S9: Secondly, That the 
 words "die without living issue" were e<iuiva- 
 lent to "die without leaving issue," or "die 
 without surviving issue;" and cited 2 Jarm. 
 on Wills, ;{2S: Butler's Fearne, 470. .'50.5, 418, 
 420, 4:50. Thirdly, assuming that the limita- 
 tion over "to the nearest heirs" dei)ended 
 on a contingency which was not too remote; 
 and a.ssuming al.so. that the limitation over 
 was void for uncertainty, still he contended 
 that Mrs. Hay. the daughter, took only a 
 life estate and that her i.ssue took as purchas- 
 ers ; and he cited and commented on Forth 
 V. Chapman, 1 P. Wms. 6(X!: Fearne. 4,S8; 
 Henry & Talbird v. Archer. Bail. lOq. 5.';5 J 
 
 €=>For other cases see same topic and KEY-NUMHEH iu all Key-Numbered Digests and Indexes 
 
 153
 
 79 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 Powell V. Brown, 1 Bail. 103; Knight v. El- 
 lis, 2 Bro. C. C. 578 ; Carr v. Porter, 1 McC. 
 Ch. 60; Reed v. Snell, 2 Atk. 642; Fearne, 
 487 ; Lainpley v. Blower, 3 Atk. 390 ; Leni- 
 aeks V. Glover, 1 Rich. Eq. 141; Thebridge 
 V. Kilbiirne, 2 Yes. 283; ChaiuUess v. Price, 
 3 Yes. 301 ; Butterfield v. Butterfield, 1 Yes. 
 133; Wilkeison v. South, 7 T. R. 551; 
 Guerry v. Yernon, 1 N. & McC. 71; Butler's 
 Fearne, 471, et seq. ; Shearman v. Angel, 
 Bail. Eq. 351; Brown v. Geiger, 4 M'C. 
 427; Fearne, 533; Dougherty v. Dougherty, 
 2 Strob. Eq. 63; PuUiam v. Byrd, 2 Strob. 
 Eq. 134; Lyon v. Mitchell, 1 Madd. 475; 
 Jackson v. Noble, 2 Keen, 590; Joslin v. 
 Hammond, 3 M. & K. 110. 
 
 Bellinger, contra. 
 
 The judgment of the C(jurt was announced 
 by 
 
 DARGAN, Ch. Tha judgment of the Court 
 in this case turns upon the construction of 
 Charles J. Brown's will. The language of 
 the betiuest in question is as follows : "I 
 give and be<iueath to my loving daughter, 
 Susan Cynthia Brown, and the heirs of her 
 body, all my wdrdly estate, both real and 
 personal ; provided, if my said daughter, 
 Susan Cynthia Brown, should happen to die 
 without living issue of her body, then and 
 in that case all my said estate, both person- 
 al and real, to return to the nearest heirs of 
 my body by my mother's lineage." 
 
 The Chancellor who heard this cause on 
 *380 
 circuit, held, that as *to the real estate, the 
 will created a fee conditional : and that part 
 of the circuit decree has heretofore been af- 
 firmed by this Court. He also held, that 
 Susan Cynthia Brown took, under the above 
 recited bequest of the will, an absoluti 
 tate in the personal property. A majt. 
 of the Court concurs, also, in this part of 
 the circuit decree, but a majority does not 
 concur in all the reasoning by which the 
 Chancellor has arrived at his conclusion. 
 The Chancellor says: "if the word 'living' 
 were omitted, and the limitation over had 
 been upon Susan's dying without issue, it 
 admits of no doubt, that this would not have 
 been a limitation over to tttke effect definite- 
 ly at Susan's death, but at any time after her 
 deal.., however remote ; that is, as the cases 
 have ruled, upon an indefinite failure of is- 
 sue." This is unexceptionable. Thus far, 
 the reasoning Is satisfactory, and the prin- 
 ciple well illustrated. But when the Chancel- 
 lor proceeds to say, that the word , 'living' 
 prefixed to the word 'issue' affords no quali- 
 fication, and that the words "if she should 
 happen to die without living issue of her 
 body," are not restrictive, and mean no more 
 than if the testator had said, "if she .should 
 happen to die without issue of her body," a 
 majority of the Court dissents. We are of 
 the opinion that the expression, "if she 
 should happen to die without living issue of 
 
 154 
 
 her body," then over, is equivalent to the 
 words, "if she should die without leaving 
 issue" or "without issue living at her death ;" 
 l)oth of which forms of expression, when 
 there is a gift to the issue (though in gener- 
 al words) in the direct bequest, with a limi- 
 tation over, have been held, in numerous 
 cases, to be restrictive. As for example: 
 where there is a direct gift to the issue in 
 general words, which, standing by them- 
 selves, and unaided by the context, would 
 fail as a limitation to the issue as purchas- 
 ers, yet if it be followed by an ulterior and 
 valid limitation over to take effect in the 
 event of the first taker's dying without leav- 
 ing issue, or without issue living at his death, 
 it is settled law, that such explanatory pro- 
 vision.s of the will ha^'e the effect in reference 
 to personal estate of restricting the primary 
 and technical sense of the words, "heirs of 
 
 *381 
 the body" or "issue," so as to make *them 
 mean, not the issue or heirs of the body in 
 indefinite succession, but a class of persons 
 who shall be living at the death of the first 
 taker. By this construction without violat- 
 ing the rules of law against perpetuities, the 
 issue take, as purch sers, under the words of 
 the direct, but otherwise general and indefi- 
 nite gift. I am unable to distinguish between 
 the cases by which the foregoing rule has 
 been established and that now before the 
 Court. I think that the expression "dying 
 withimt living issue," implies a dying with- 
 out issue living at the death of the first tak- 
 er — and such is the opinion of a majority of 
 this Court. So that the failure of Susan 
 Cynthia Brown's issue to take as purchasers 
 will not result from that part of the will. 
 
 But there is another question arising up- 
 on the construction of Charles J. Brown's 
 will, which divides and embarrasses this 
 Court. The limitation over which the testa- 
 tor has attempted to create, is to the nearest 
 heirs of his body of his mother's lineage. It 
 is imix)ssible to designate the persons em- 
 braced under this description. It is utterly 
 unmeaning. So far as certainty is concern- 
 ed he might as well have given the estate 
 to the most virtuous man in the State, or 
 to some imaginary personage. The limita- 
 tion over is void for uncertainty. And the 
 question which remains is, whether this ul- 
 terior and void limitation is sufficient to re- 
 flect back such a restrictive meaning upon 
 the general woi-ds of the direct gift to the 
 issue as to make them take as purchasers. 
 Upon this question, after two arguments at 
 the bar, and much deliberation and research, 
 the Court has been unable to harmonize in 
 opinion. And if the adjudication of the case 
 depended upon a decision of this question, 
 there could be no disposition of it, by this 
 Court, on account of differences of opinion. 
 
 For myself, I think, that the will must be 
 read and construed as if the void limitation 
 over had not been inserted. I have hereto-
 
 II A V V. I!.\Y 
 
 *C84 
 
 fore liptii (if the oitinion, that it must l)e a 
 valiil liniitiitiiiii over, to have tlie effect of 
 <n:iilif\ iii« tlie freiierality of the words of 
 tlic direct fiift ti) the issue, so as to uialie 
 tluMH take as purcliasers. And I liave heard 
 iintliiiif; ill tlie recent discussions upon tlie 
 
 ♦382 
 .sul>*ject, nor have I heen aide to lind auy iu 
 the way of authority, to shake uiy previous 
 iipiiiiiiii. 
 
 A ii'itt to A., and if A. should die without 
 issue living at the time of his tleath, then 
 to U. is un<iuestiiiiialdy a good limitation 
 to B.. if the contingency hai)iH'ns upon which 
 he was to take. And if it does not liai»pen 
 A. retains an alisolute estate. In this case 
 the issue of A. do not take as purchasers, 
 because nothing is intended to be granted to 
 them iu the words of the direct gift. Their 
 i'xisteiice or non-existence at the death of A., 
 like auy other contingent event, is simply 
 made the condition uiion which the reniain- 
 <ler to H. depends. 
 
 A gift to A. and to iiis issue, or the heirs 
 of his body, and if he should die without 
 leaving issue or heirs of his body, then to B. 
 is a go<Ml liuiitation to B. as in the preced- 
 ing illustration ; and will take effect if A. 
 should die without leaving issue, or heirs 
 of his body. But iu this case, the testator 
 intends a direct gift, though in general and 
 in definite terms, to the is.sue of A., and A. 
 will take only a life estate, and his issue 
 "Will take in remainder as purchasers. The 
 valid limitation over to B. has. by a fair 
 con.structiou, tiie effect of tiualifying the gen- 
 erality of the words of the direct gift to the 
 issue of A., so as to make them mean the 
 issue of A. living at his death. 
 
 It is equally clear that a gift to A. and 
 the issue or heirs of his body, without any 
 limitation over, or other words indicatiug 
 that the testator meant to embrace in the 
 direct gift only the issue of A., who should 
 be living at his death, confers upon A. an 
 absolute e.state. Iu other terms, '•issue,'' or 
 "heirs of the body," unrestricted and unex- 
 plained, are words of limitation and not of 
 purchase. So far there cannot possibly be 
 any difference of opinion. 
 
 But some of the members of this Court are 
 of the opinion, that in the case of Charles 
 J. Brown's will, the abortive attemiit to cre- 
 ate tiu> limitation ovi-r, has the effect of cut- 
 ting (btwn the estat«' of Susan Cynthia Brown 
 to a life estate, with remainder in fee to the 
 children. Other members of the Court think 
 
 •383 
 that the ♦estate of Susan Cynthia Brown, 
 absolute liy the words of the direct gift, is 
 not to l»e cut down to a life estate, by a limi- 
 tation over, which was void by its own in- 
 herent defects. The last is my own opinion, 
 as 1 have already intimated. 
 
 The whole argument on the other side i»ro- 
 teeds upon the unf(»uiided assumption, that 
 iiu interest is given to the issue of the first 
 
 taken by the terms of the direct gift. This 
 is a great mistake. The i.ssue are mention- 
 ed in the clause of the direct gift, but not 
 in a manner to give them an estate. The 
 whole estate, a<'cordiiig to the rules of law, 
 is in the first instance given as ab.solutely 
 to Susan Cynthia Brown as the forms of 
 language admit of. This will not be dis- 
 liuted. 
 
 Is this absolute gift to be divested or cut 
 down by an ineffectual limitation over? 
 The case of Henry & Talbird v. Archer, Bail. 
 E<1. ~>'.\~>, decides, that a good limitation over 
 may reflect a restrictive meaning uikju the 
 geiH'ral words of the direct gift, and so qual- 
 ify the word "issue" in the direct gift as to 
 make it mean issue living at the death of 
 the first taker. But is there any authority 
 for saying that a bad limitation over will 
 have that effect? The authorities are the 
 other way. 
 
 "An original vested gift shall not be qual- 
 itiiMl by a subsetiuent gift engrafted on it, 
 which the law will not allow to take effect, 
 as by a gift over which is void, by reason of 
 its being too remote." 2 Wins, on Ex'ors. 
 1087; Blease v. Burgh, 2 Beav. L'Jl ; Ring 
 V. Hardwick, 2 Beav. :i'y2. "And the rule is 
 general, that an absolute interest is not to 
 be taken away by a gift over, unless the 
 gift over may it.self take effe<t." 2 Wms. 
 on Ex'ors. 10S7; Green v. Harvey, 1 Hare, 
 42S; Winckworth v. Winckwortli, 2 Beav. 
 576; Eato'n v. Barker, 2 Coll. 124. 
 
 In Jackson v. Noble, 2 Keen, 5U0, the tes- 
 tator gave real and personal property to 
 his daughter A. and two other perstms, in 
 trust, to permit A. to receive the rents and 
 profits for life to her separate use, and after 
 her decease in trust to convi'y the estate to 
 A's. heirs, executors, &c. ; but in case A. 
 should marry and have no children, then the 
 testator gave the property to B. ; or in case 
 
 •384 
 •of his decease before A., then to B's. chil- 
 dren. The testator's daughter married, but 
 had no children ; and B. died in her life 
 without issue. The Master of the Uolls held 
 that the testator's daughter. A., took au ab- 
 solute equitable estate, with an executory 
 gift over to B. and his children ; and that 
 B. having died without children in the life 
 time of A., the alisohite title of the latter re- 
 mained undefeated. 
 
 Mr. Jarman, (1st vol. on Wills, 78.'J,) iu 
 coninu>nting on this case, says, "so if the 
 executory devise were void on account of its 
 remoteness, or for any other cause, the prior 
 devise would be absolute." He proceeds to 
 say. "On the same principle, it would .seem 
 to follow, that, if personal estate were be- 
 queathed in terms which, standing alone, 
 would confer the absolute interest, and there 
 followed a betiuest over iu a certain eveut to 
 a person for life, the first legatee would, 
 (subject to such executory gift for life,) be 
 absolutely eutitlcd. It might appear to be 
 
 155
 
 <r/4 
 
 4 RICHARD SON'S EQUITY REPORTS 
 
 a farther cleduetion from this doctrine, that 
 if the second gift were a contingent benuest 
 of the entire interest in the property, and 
 not for life only and such contingent and 
 substituted bequest failed in event, the prior 
 legacy, in derogation of which the same was 
 to take effect, would remain absolute." 
 
 Thus it appears to be a doctrine well-sus- 
 tained by the authorities, that where the 
 words of the direct gift would confer on the 
 first taker an absolute estate, such absolute 
 estate is not to be cut down or defeated, by 
 a subsequent contingent limitation over, 
 which is ineffectual. This was clearly Chan- 
 cellor Harper's opinion. For in Henry & 
 Talbird v. Archer, (Bail. Eq. 550) he re- 
 marks; "I believe it may be safely said, 
 that there is no adjudged case, except that 
 of Lyon v. Mitchell, of sucli limitation to is- 
 sue, in which, the questions of the first tak- 
 er's being restricted to less than an abso- 
 lute estate, and the goodness of the limita- 
 tion over, were not regarded as identical." 
 And I may conclude these observations by 
 saying, that, in all the discussions which 
 we have had, at the bar, and in the consulta- 
 tion room, no case has been presented, where 
 the absolute estate given to the first taker 
 
 *385 
 by the *words of the direct gift, has been 
 cut down or restricted to a life-estate, by a 
 limitation over, which was bad for any 
 cause. 
 
 A majority of the Court, though upon dif- 
 ferent grounds, concur in the opinion, that 
 the issue of Susan Cynthia Brown, (after- 
 wards Susan Cynthia Hay,) do not take as 
 purchasers under the bequests of Charles J. 
 Brown's will. 
 
 The circuit decree is in that respect af- 
 firmed, and the api^eal from that part of the 
 circuit decree is dismissed. 
 
 WARDLAW, Ch., concurred. 
 
 JOHNSTON, Cli. Upon the point on which 
 the Court is now to give judgment, I am 
 still of the same opinion which I expressed 
 in the decree. 
 
 I am not sufficiently Satisfied with the 
 ground upon which my Brethren DARGAN 
 and WARDLAW have put the case, to adopt 
 their opinion, at present. 
 
 I do not perceive the force of the objec- 
 tions made to the view I expressed in the 
 decree, that the word '-living" does not add 
 to, or vary, the meaning of the word "issue" 
 to which it is prefixed. It is merely super- 
 fluous, — as are the words following, — "of 
 her body." Instances of such superfluous 
 language are very connuon in the cases, and 
 wherever they occur, do not vary the deci- 
 sion which would have been made had they 
 been wanting. 
 
 If the testator had made the limitation 
 over to take effect if liis daughter Susan 
 should happen to "die without issue of her 
 
 156 
 
 body" — his meaning would certainly have 
 been without issue alive, or living. The ad- 
 dition of the words alive or living would 
 have served no purpose whatever. They 
 would not have served to fix the time at 
 which the limitation over is to take effect 
 — which is the important, and, indeed, the 
 only point of our inquiry here. 
 
 It is assumed here, that the word "living" 
 means living at her death: but I conceive 
 it has no such meaning. 
 
 The reference, by one of my brethren, to 
 the case of Henry & Talbird v. Archer, is, 
 in my conception, very unfortunate : and 
 does not serve to destroy, but rather to eluci- 
 
 *386 
 
 date the principle upon *which the circuit 
 decree, in this case, is put. The will, in that 
 case, is, that, if either of the daughters 
 should die without leaving issue alive, then 
 over. It was not the word "alive" (equiva- 
 lent to "living," in the present case), that 
 fixed the juncture for the limitation over to 
 take effect: nor did the Court give it any 
 such effect. The time was fixed solely by the 
 word "leaving." 
 
 In this case tliere is no such word, nor 
 any other word of the same eflicacy. 
 
 There is not a single word of time in the 
 sentence of Bi'own's will under examination. 
 Die without issue, by well-settled rules, means 
 an indefinite failure of issue: refers to no 
 time when, after the death of the party, he 
 shall be without issue — meaning always 
 issue alive or living. And unless there be 
 something in the will besides, to fix the time, 
 at the death of the party, it is too remote 
 and indefinite. 
 
 But, as my Brethren, DARGAN and 
 WARDLAW, come to the same result with 
 me, I concur with them in affirming the de- 
 cree, and dismissing the appeal. 
 
 DUNKIN, Ch. dissenting. A majority of 
 this Court are of opinion (and I concur with 
 them) that the words "die without living 
 issue of her body" are eciuivalent to "die 
 without leaving issue of her body alive at 
 her decease." Judicially read, it is a be- 
 quest to the testator's daughter, Susan Cyn- 
 thia Brown, and the heirs of her bod.y, liut 
 "if my said daughter should happen to die 
 without leaving issue of her body alive at 
 the time of her decease, then and in that 
 case" over. Certainly, since Henry & Tal- 
 bird V. Archer, (Bail. Eq. 535,) I think it 
 has not been questioned that the effect of 
 these subsequent words is to restrict the 
 generality of the previous expression, and to 
 create a life estate in the first taker, and 
 enable the children to take as purchasers. 
 The bequest in Henry & Talbird v. Archer, 
 was to the testator's daughter, "to her and 
 the lawful issue of her body forever," but 
 if any of his daughters should dl" ' ^r^thout 
 leaving lawful issue of their l^^-T alive,"
 
 HAY V. HAY 
 
 *389 
 
 tlu'ii their part to lio (Hiually divided among | Is to return to the nearest heirs of testator's 
 
 th'' surviving childn'ii. IkmI.v by his mother's lineage." It is said 
 
 *3g7 1 that tliis contingent limitation over is void 
 
 •The daughter die.l leaving children, and ! for uncertainty, as the Court would he unable 
 
 tliev were held entitled to take as purchas- <" «»>' «»»• '^■^^^'' tl>^' nearest heirs of testa- 
 
 .^^.jj^,j.p tor s body by his mothers lineage; and in 
 what remains to be ^•■id tliat will lie assum- 
 ed. But what is the conseiiuenee deduced 
 ' from itV Does this uncertainty as to the ul- 
 tim.'ite and contingent oiijiM/t of the testator's 
 
 ers : and upon the principle, that 
 there is an exjtress gift to issue generally, 
 ;i limitation over, in the event of the first 
 laker's dying without leaving issue living 
 at his death, will conline the gift to such is- 
 sue as are living at that time, and entitle 
 I hem to take as purchasers." Wh(>re the be- 
 quest is to one and his issue, or the heirs 
 of his body, without more, the law gives an 
 absolute estate, not because the testator in- 
 tende<1 to give an absolute estate, but liecause 
 Lc intended to give an estate restricted indef- 
 initely in lineal s\iccession whicli the law 
 does not pernut. lint if there are superadded 
 words which manifest thai the testator did 
 not contemplate such iiuletiiiite lineal succes- 
 sion, the Court lays hold of such words in 
 order to give effect to the intention. — The 
 circumstance of limiting the proi)erty over, 
 on the event of not leaving issue has been 
 held, in a large class of cases, sufficient to 
 show the testator's intention tt> use the word 
 issue, or heirs of thi> body, not as a word of 
 limitation, but of purchase. The authority of 
 Henry & Talbird v. Archer has been repeat- 
 edly recognized, and may now well be re- 
 garded as a rule of i)roperty. nor is the obli- 
 gation of that decision now called in ques- 
 tion. In the will before us, the intention of 
 the testator to restrict the meaning of the 
 
 bounty, in an event which has never occur- 
 red, create the smallest uncertainty as to 
 the obj«»cts of his bounty, in the event which 
 has occurred'^ I)o«^s it create ai suspicion that 
 he contemplated an indefinite lineal succes- 
 sion, and that he did not restrict his vision 
 to the period of his daughter's <leatli, and tlie 
 state of things then existing'/ Not at all. 
 Nothing is more hazardous than to take up a 
 general expression without reference to the 
 context, and apply it indiscriminately. In 
 Henry & Talbird v. .Vnher. Chancellor Har- 
 per is sjieaking of the validity of the gift over 
 in reference to the previous gift. Imt he nev- 
 er meant to say, that because the contin- 
 gent limitation over is void for uncertainty 
 or illegality, the previous estate, well given, 
 is thereby defeated. All the authorities 
 maintain a cimtrary doctrine. "A gift over," 
 says Ivord Langdale in Blea.se v. Burgh. 2 
 Beav. 221, "which is too remote and void, 
 cannot defeat a vested interest previously 
 given." Does it make any difference that the 
 gift over is.void for uncertainty or illegality, 
 and not for remoteness? — The rule is recog- 
 
 term issue to the children, or other descend- | "ized and the authority cited Ity Mr. Wil- 
 liams in his treatise on Executors, p. lOSO. 
 It is also recognized in the case of Dougher- 
 ty V. Dougherty, 2 Strob. K<i. 07. In the case 
 before us there is a direct bequest to the 
 daughter and the heirs of her luMly. The in- 
 quiry, says Mr. Justice Cheves, in Guery v. 
 
 *389 
 •Vernon, (1 N. vS: McC 71.) is •whether tliese 
 words, issue, heirs of the body. &c.. express 
 an indefinite succession of persons, or wheth- 
 er they point out certain p:irticular persons 
 who may exist, and must take within a period 
 not excluded by the rules of law'/" To deter- 
 mine this inquiry the Court is permitted to 
 look to other expressions in the context, and 
 if it be thence ascertained that the terms 
 are used in a restrictive sense, then the heirs 
 of the body are held to take as purchasers. 
 Such expressions as 'dying without leavini: 
 issue alive at the death of the first taker.' 
 have received judicial interpretation as so 
 restricting the testator's meaning. And the 
 acknowledged intention of the testator, thus 
 violating no rule of law, is permitted to take 
 effect, and the gift to the children is sustain- 
 ed under the d»'scription of heirs of the body. 
 But the certainty or uncertainty of the ob- 
 jects described in the contingent limitation 
 over, sheds no light upon the only material 
 inquiry, and affords no aid to the Court in 
 solving it. If the bequest were to A. and 
 
 157 
 
 ants of his daughter living at her death, is 
 manifested by language nearly identical with 
 that of Bell's will. The daughter left chil- 
 dren, who are parties to these proceedings, 
 and who, according to Henry & Talbird v. 
 Archer, are entitled to take as purcha.sers. 
 under the will of their grandfather. 
 
 But it is objected that the children are 
 not entitled, because, if their mother had 
 happened to leave no children, the terms of 
 the ulterior limitation over leave it uncer- 
 tain to whom, in that event, the estate would 
 pass. In other words the testator has clear- 
 ly manifested the oiijects of his bounty if ] 
 his daughter left children alive, and she has 
 left children, but he has not been so fortunate 
 in designating the oiijects of his bounty in 
 a contingency which has not liajipened; but 
 this Wiint of certainty is to defeat his de- 
 
 ♦388 
 •dared purpose in the event which has hap- 
 pened. Let the proposition be analyzed with 
 reference to this case. The gift is to th»' tes- 
 tator's daught«'r and the heirs of her body, 
 which, by tlie restrictive words subsiMpiently 
 used, would be (oiistrued to give a life estate 
 to the motlu'r with a remainder to her issue 
 living at the time of her death. Hut the 
 testator furtlu-r provided that if his daughter 
 "should happen to die without living issue 
 of her body, then and in that ca.se tlie estate
 
 *3S9 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 the issue of her body, but if she should die 
 without leaving issue of her body alive at 
 lier death, then and in that event to the wis- 
 est man in England, or the man in the moon, 
 or to the testator's faithful slave Adam, 
 (void under A. A. 1841.) are the issue living 
 at tlie death to be defeated, because, if they 
 did not exist, the contingent limitation would 
 have proved illusory or impracticable? If 
 the bequest had been directly to the daughter 
 for life, and afterwards to lier issue living 
 at the time of her death, with a contingent 
 limitation in default of such issue, would it 
 be contended that children, living at the 
 death, had any interest in the inquiry as to 
 this contingent limitation? But the Court so 
 construe the bequest now under considera- 
 tion ; and yet the issue of the daughter liv- 
 ing at her death are held not entitled, be- 
 cause it is impracticable for the Court to de- 
 termine who would have taken if no such is- 
 sue had existed. I think the rights of the chil- 
 dren depend on no such inquiry, but that they 
 are entitled to the personalty as purchasers 
 under their grandfather's will. 
 Appeal dismissed. 
 
 4 Rjch. Eq. *390 
 
 *DANIEL FOSTER ct al. v. D. KERR and 
 W. EDRINGTOX. 
 
 (Columbia. May Term, 1852.) 
 
 [Hushand and Wife <®=3ll7.] 
 
 15e(!iic.st of slaves to a feme covert "to her 
 and tlie heirs of her body, aud to them alone," 
 does not confer a separate estate on the wife, in 
 exclusion of the rights of her husband. 
 
 [Ed. Note. — For other cases, see Husband and 
 Wife, Cent. Dig. § 419; Dec. Dig. (©=117.] 
 
 Before Wardlaw, Ch., at Fairfield, July, 
 1851. 
 
 I'laintiffs, children of Josiah Foster and 
 I'inckey, his wife, which Pinckey was the on- 
 ly child of Z. Hall, filed this bill, April, 1849, 
 claiming certain slaves as enuring to them 
 under the operation of tlie will of their said 
 grand-father. The will bore date February 
 IS, 1826, and was admitted to probate, Febru- 
 ary 20, 1830. Its fourth clause was as fol- 
 lows: "I give unto my beloved daughter, 
 Pinckey Foster, to her and the heirs of her 
 body, and to them alone, the following tracts 
 of land, &c., ; also seven negroes and their 
 increase, namely: Sal, Anny, Caroline, Cyn- 
 thia, Beck, Jim, Charity; also one bed and 
 furniture furnislied equally to tlie one above 
 mentioned." 
 
 In December, 183.3, Josiah Foster sold Sal 
 aud her children, born since the death of tes- 
 tator, to wit: Jerry, Daniel and Buri-el, to 
 defendant Kerr and in February, 1836, sold 
 Caroline to defendant l^drihgton. Pinckey 
 Foster died about 18.35, and Josiah Foster 
 died intestate, in 1836. 
 
 "Wardlaw, Ch. The question is, wliether 
 the bequest is of a separate estate in the 
 slaves to the wife, Pinckey Foster, in exclu- 
 sion of the rights of the husband. The gift 
 is 'to her and the heirs of her bod.v, and to 
 them alone.' It has been long ago settled, 
 that tliese terms, without the last clause, 
 would, in a gift of personalty, carry the 
 absolute estate, upon which of course the 
 rights of a husband would attach, and the 
 only dispute is as to the ineaning and effect 
 of the words, "and to them alone." I con- 
 strue these words according to their natural 
 and grammatical reference, to qualify the 
 force of the word 'heirs' only, and to convey, 
 by a common pleonasm, the meaning of the 
 testator, that none but heirs of the body, not 
 
 *391 
 heirs general, should take *by succession 
 from the first taker. Upon this construction, 
 the quantity of estate in the wife, and 
 through her in the husband, would not be 
 limited by the words. But the consequence 
 would be tlie same, if we construe the words 
 reddendo, singula singulis, as referring as 
 well to the wife as to the heirs: for then the 
 meaning would be, that none besides the 
 wife and the heirs of her body, sucessively, 
 should take the estate, which, as to chattels, 
 would be a gift absolute to the wife, upon 
 the fixed technical construction, often de- 
 feating the real wishes of donors. Myers v. 
 Pickett, 1 Hill, Eq. 37. No doubt can arise 
 in the case, except by torturing the phrase 
 heirs of the body, into children, and deduc- 
 ing that those in existence at the death of 
 the testator, shall take jointly with their 
 mother. If we held the children thus to take 
 as original donees and purchasers, all of the 
 plaintiffs would now be barred by the statute 
 of limitations, except, perhaps, Susan Morris ; 
 but I reject this forced construction. A 
 separate estate in a married woman, in de- 
 rogation of tlie husband's common law right, 
 can be created only by express terms, or by 
 necessary and uneciuivocal implication. Wil- 
 son V. Bailer, 3 Strob. Eq. 260 [51 Am. Dec. 
 678J. The implication in this case, to ex- 
 clude the husband, is much feebler than in 
 ^^^^^at^1Vrford v. Tate, 2 Strob. E(i. 27. where 
 it' ^was regarded as insufficient. The gift 
 there was to a married woman for life, and 
 at her death to the heirs of her body, with a 
 provision that the property should not be 
 sold by the husband, nor removed from the 
 State ; and this was held to confer an ab- 
 solute estate on the husband, upon his re- 
 duction of the property into possession. 
 
 It is ordered and decreed, that the bill be 
 dismissed. 
 
 The plaintiffs appealed, on the ground, be- 
 cause it is apparent tliat it was the inten- 
 tion of the testator to create a separate es- 
 tate in Pinckey Foster and her children, free 
 from and beyond the control of her husband, 
 Josiah Foster ; and the decree should have 
 
 ©=>For other cases see same topic and Kj<;i -NUMBER iu all Key-Numbered Digests and Indexes 
 
 158
 
 BAKi:il V. LAFITTE 
 
 ^393 
 
 ordered that intention to lie ciirried into ef- 
 
 flHt. 
 
 A. W. Tlionison. ft>r aiipeliants. 
 Hoyce, Boylston. conlia. 
 
 *392 
 ♦I'EK C'linAM. This Court is satisfied 
 witli tlie (ieeree of the Chancellor from which 
 the appeal is taken ; and it is ordered that 
 the same he allirmed, and the ajtpeal dis- 
 missed. 
 
 JOllNSTOX. KINKIX and DAIUJAN, CC, 
 concurriiif.'. 
 
 Alil>eal dismissed. 
 
 4 Rich. Eq. 392 
 
 A. BAKER and Wife v. D. M. LAFITTE ot al. 
 
 (ColiMuhia. May Torn), ISulJ.) 
 
 \Rcfrrcncc C^afiT.] 
 
 Where a party is not ready to go on with 
 a reference, a niotion to continue should he made 
 liefore the commissioner, and it is irregular to 
 liass him by and make the niotinn before the 
 Court. 
 
 lEd. Note.— For other cases, see Reference, 
 Cent. Dig. § 87: Dec. Dig. (©=>r»T.l 
 
 [Uuardinn and Ward <>=;3l.")().1 
 
 A guardian by failing to make returns does 
 not forfeit his commissions. 
 
 I Ed. Note. — For other rases, see Guardian 
 and Ward, Cent. Dig. § 507; Dec. Dig. <£=> 
 loO.l 
 
 \r rusts C=3lili>.l 
 
 . Tlioiigli till re are cases in which trustees 
 have been ciiarged with com|)ound interest, yet 
 the course i>{ tlie Court is to disi'ourage the 
 compounding of interest. 
 
 [Ed. Note.— Cited in IIug;;ins v. lilakely, J) 
 Rich. Ivi. 40!) ; (Jraveley v. Graveley, 25 S. C 
 L':j. GO Am. Rep. 47N. 
 
 For other cases, see Trusts, Cent. Dig. § 
 :!17; Dec. Dig. <®=321J>.] 
 
 [Guanliiin and Mdrd <g=>54.1 
 
 Rules by which guardians and other trus- 
 tees should be rhai-ged with or allowed interest 
 on their accounts, stated. 
 
 [Ed. Note. — Cited in (Jriflin v. Bonham. !) 
 Rich. Eq. M. Sli ; I'ettus v. Sutton, 10 Rich. 
 E(|. .■557; Adams v. Latban. 14 Ricii. Ei]. ."OS; 
 Ex parte (ileiin. liO S. C. 04. OS. 71 ; Tucker 
 V. Richards, 5S S. C. 27, 28. 3(5 S. E. 3. 
 
 For other cases, see (Juardian and Ward, 
 <'ent. Dig. SS 242-25:'.; Dec. Dig. <©=>54.| 
 
 I Triisfs c=>:\()A.] 
 
 Where a trustee adnnts his aceoimtai>ility, 
 lie must tile with bis answer a stated account 
 simwing the b:ilance wiiicb be adnnts to he due. 
 Wli're this is dune (and the answer is incom- 
 plete and sid)ject to exce)»tion. if it is not donet 
 tlie iilaintifT is entitled to a short order that the 
 sum a(hnitted be jiaid to liim. 
 
 I Ed. Note. — For other <ases. see Trusts, Cent. 
 Dig. S -113; Dec. Dig. <C=>304.1 
 
 Before Dargan, Cli.. nl r.aniwcil. I'cliru- 
 ary. 1S52. 
 
 In is:!;i. tlie defendant, I >. M. I.alitte. was 
 appointed guardian of the idaintitV. Eaura 
 I>. Baker, (then (Jarvhi,) and William L. Gar- 
 
 vin became his surety. This hill, fdod Au- 
 gust 10, 1S51, wa.s for an account. 
 
 In Fohruary, 1.S30. certain slaves of the 
 plaintiff were sold under an order of the 
 Court, by the coniniissioner, on a credit, 
 with interest, payable annually. In January, 
 1S40. the commissioner was ordered to pay 
 the annual interest on receipt thereof, and 
 also the amount of the sales, when collected, 
 to the defeiulant. The couuuissioner received 
 considerable sums of money on account of 
 the .sales, and paid, at dilTerent times, sums 
 of money to the defendant; but a consider- 
 
 393 
 aide jiorlioii of the *moiiey, received by the 
 commissioner, reumiiu'd uncalletl for in his 
 hamls, until after the internmrriage of the 
 plaintiffs, when, by direction of defendant, it 
 was jiaid to the plaintifls. 
 
 The plaintilTs held their lirst and oidy ref- 
 erence on Tue.sday. the 27tli day of .January. 
 18.52 ; the conimi.ssioner then api»ointed 
 Wednesday, the 4th day of February for the 
 defendant's reference. On Wednesday, D. 
 M. Latitte did not attend, and assigned the 
 causes of his absence in a letter to his so- 
 licitor, dated on the 3d day of February. 
 1852, as follows: "I did not get home from 
 Barnwell C. M. until Saturday eveidng last, 
 and that with great ditliculty. .My physical 
 inability at present is so great, that it is im- 
 possible I can withstand the fatigue of at- 
 tending the reference apiuiinted for to-mor- 
 row, hut I will attend as soon as I shall have 
 recruited sutliciently to get uii my witness- 
 es — of my disiiualitication at this time to 
 transact business, I am not able to send an 
 athdavit, as the nearest magistrate to my 
 residence is fourteen miles oil. and I have 
 not strength to go to him. At tlu' reference 
 on Tuesday last, I was in no condituni for 
 business; bodily suffering caused me to 
 overlook bringing to the notice of the com- 
 nnssioner a statement from his iirediH-essor 
 showing an account of my administration as 
 guardian up to January 12. Is44, which, 
 with some other umtters then neglected, are 
 essential to making out a corri'Ct report ; 
 besides there are live witnes.ses that I desire 
 should be examined. You will therefore 
 please emleavor to procure some jiostpone- 
 nieiit on my account, particularly as I ileeni 
 m.v iiresence at the reference to he of im- 
 portance." On the receipt of this letter the 
 solicitor of D. M. Latitte exhibited it to the 
 solicitors of the plaintiffs, and reiiueste<l 
 their con.sent to ft continuance of the cause, 
 as but four days, iiuluding Sunday, would 
 intervene iK'fore the sitting of the Court. 
 The plaintiffs" .solicitors ridused their con- 
 sent to a coittinimnce, but agreed that tlie 
 letter should be read as if sworn to by the 
 defendant, when the <"ause was called by the 
 Chancellor, and a motion made to continue. 
 
 The c«)mmissioner made up his reiuirt, to 
 
 ^;=^l'or other eases see samu topic auU KKV-^;L'MLilill iu all Key-Numbered Digests aud Indexes 
 
 159
 
 *r.94 
 
 4 niCilAKDSON'S KtH'lTY RErOKTS 
 
 *394 
 which inuiierous ex*ci'i)tioiis were taken by 
 phiintiffs and defendant. AVhen the case was 
 called a motion for a continuance was made 
 and overruled. His Honor reconmiitted the 
 report, lioldiu.i;, that defendant was charge- 
 alle with interest on the moneys received by 
 the commissioner and not called for; that 
 defendant was not chargeable with coni- 
 pound interest, or interest upon interest ; 
 and that defendant was not entitled to com- 
 missions for the years in which he had fail- 
 ed to make returns as guardian. The com- 
 missioner reformed his repoi-t, to which ex- 
 ceptions were again taken. His Honor over- 
 ruled the exceptions and confirmed the re- 
 port. Both parties appealed — the defendant 
 on the grounds, inter alia, that his motion to 
 continue should have lieen granted ; that he 
 was not chargeable with interest on the mon- 
 eys collected by the commissioner and not 
 paid to him ; that he was entitled to all his 
 commissions ; and that there were errors in 
 the calculation of interest, which should be 
 corrected: and the plaintiffs, on the ground, 
 that defendant was chargeable with interest 
 upon interest, according to annual balances. 
 
 J. T. Aldrich. for defendant. 
 Bellinger, for plaintilfs. 
 
 The opinion of the Court was delivered by 
 
 JOHNSTON, Ch. Upon the subject of the 
 continuance, this Court is of opinion, that 
 the Chancellor's discretion was well exer- 
 cised. Indeed, it is hardly proper to say 
 that the motion to continue was properly 
 brought before him. The accounts were be- 
 fore the conunissioner, and it was to him the 
 motion should have been submitted before 
 the close of the reference. This was not 
 done; and it was very irregular to pass by 
 the commissioner, and bring before the Chan- 
 cellor a motion which should have been made 
 to and decided by the former, according to 
 his discretion. 
 
 On the subject of the commissions, this 
 question was argued before the Chancellor 
 as if the penalty for not making returns, 
 contained in the statute, was by the terms of 
 the statute api^licable to guardians as well 
 as to executors and adminLstrators. The 
 
 *395 
 *distinction, in that respect, established in 
 the case of Muckenfuss v. Heath, 1 Hill Ch. 
 182, was not brought to his view. We are of 
 opinion that his ruling on that point, result- 
 ing from the cause just mentioned, was er- 
 I'oneous, and that the guardian, irrespective 
 of his returns, is entitled to commissions on 
 his receipts and disburS'-ments. 
 
 There is no authority for the position con- 
 tended for by the plaintiffs that the defend- 
 ant should be charged with compound inter- 
 est in this case. There are cases in which 
 a trustee employing the funds of the cestui 
 que trust for his own benefit, and subjecting 
 IGO 
 
 them to the casualties of trade, and there is 
 no means of ascertaining the profits made, 
 has been subjected to compound interest by 
 annual and even semi-annual rests; of which 
 an instance exists in Sdiieffelin v. Stewart, 
 1 Johns. Ch. 620. But there is nothing of 
 tliat kind liere; and the course of this Court 
 is to discourage the compounding of inter- 
 est, as will appear in a note subjoined in 
 which the cases are collected, (a) 
 *396 
 
 *We are satisfied with the Chancellor's rul- 
 ing that the guardian was chargeable, vuider 
 the evidence, with the money he neglected to 
 receive from the commissioner. 
 
 The remaining (juestions in the case relate 
 to the computation of interest, (of course I 
 mean simple interest,) on the guardian's ac- 
 counts. It is a subject of great difficulty. 
 
 The general principles applicable to the 
 subject are, that a tru.stee is not to make 
 profit out of the trust funds in his hands, 
 and that he shall exercise that degree of 
 
 ((I) Authorities on mode of computing interest: 
 
 Dan-el v. Eden, 3 Des. 241 [4 Am. Dec. (113], 
 holds, that from 1797. when the case of Stuart 
 v. Carson [1 Desaus. 500J was decided, the 
 cour.se has been to allow interest on executors' 
 aceounts. But, says the Coiu't, the account 
 niu.st l)e made uj) yearly, and the interest should 
 be kept in a separate column, and compound in- 
 terest should not be allowed. 
 
 Jenkins v. Fickling, 4 Des. .370, holds, that 
 executors ousht to pay interest. 
 
 Benson v. Bruce, 4 Des. 4ti4, holds, that inter- 
 est shall be charged against an administrator, 
 because he kept the money of the intestate in his 
 hand an imreasonable time, (fee. ' 
 
 Walker v. Byuum, 4 Des. 555. The Court 
 laid down the rule, that where an executor, ad- 
 ministrator, or guardian, receives money, he is 
 bound to pay debts or put it out at interest on 
 proper securities, and that when he receives con- 
 siderable sums and no circumstances exist for 
 retaiidng it, he is bound to i)av interest. 
 
 Taveau v. Ball, 1 McC. Eq. 456. The Court 
 held, that defendant wis not chargeable with 
 interest except on annual balances, and that 
 time should be allowed an executor to look out 
 for proper investments, after the balance is as- 
 certained. 
 
 Black V. Blakely, 2 McC. Eq. 1. The Court 
 say, the rule for calculating interest has long 
 been settled in this State. It is. where partial 
 payments have been made, to apply the payment, 
 in the first place, to the discharge of the interest 
 then due. If the payment exceeds the interest, 
 the surplus goes to discharge the piincipal, and 
 interest is computed on the balance of princi- 
 pal. If the payment be less than the interest, 
 the surplus of interest must not be taken to aug- 
 ment the prim 'i)al. but interest continues on 
 the former principal until the period when the 
 payments taken together exceed the interest 
 then due. That method of calculating interest 
 has been settled by the decisions of our Courts 
 
 *396 
 for more than *thirty yeai's. The Court then 
 adds, that they had never known compound in- 
 terest allowed on a mere neglect to pay over 
 monev. 
 
 Wriiiht V, Wright, 2 McC. Eq. 194. Nott, J., 
 in delivering the opinion of the Court, says, 
 that the allowance of compound interest seems 
 to be an invention of modern date. That there 
 is no such general rule, and that even if it were 
 the rule in the English Coiu'ts, it would be im- 
 practicable in this country, where money can-
 
 BAKER V. LAFITTE 
 
 398 
 
 diligence in relation to the trust estate, wliicli 
 men of ordinary prudcnc-e exercise witli re- 
 spect to tlieir own estates, and if any loss 
 result from his failure in this respect, he, 
 and not his cestui (pie trust, must hear it. 
 The.se principles must Kiiide in the deci.sion 
 of all ca.ses; and the application of any uni- 
 versal and intlexihle rule is impossihle. he- 
 cause such rule would, under some circum- 
 stances, serve rather to sacritice than to 
 advance the general princii)les. which it is its 
 intention and purpose t<) carry out. 
 
 If a trustee should have in his hands se- 
 curities, hearinj; interest, which .securities 
 are not realized until just liefore his settle- 
 ment with his ct'stui (jue trust, in such case 
 it is clear th.it he should i)e cliariied with 
 
 *397 
 the interest borne by the securities, and *no 
 more; and whatever expenditures he may 
 have made in the meantime out of his owii 
 funds, should bear a simple interest in his 
 favor from their dates respectively. In such 
 a case as this which I have mentioned, there 
 is neither necessity nor propriety in casting 
 annual balances, and computinj,' interest upon 
 them. 
 
 If a security comes into the trustee's 
 hands, bearing interest, he is not allowed to 
 take the interest to himself; and in such case 
 there is no propriety in deferrinj; the compu- 
 tation of interest, .so far as that security is 
 concerned, until the end of the year. It is 
 not necessary to allow time for investment — 
 an investment already existing in the secu- 
 rity itself. 
 
 Again: Although the general rule be not 
 to charge trustees with interest upon sums 
 received until the end of the year in which 
 they are received, yet if it should happen 
 that a large sum should come into his hand.s 
 on the first day of January, and he should 
 not pay it out until the last day of December, 
 it would not seem proper to excuse him from 
 interest from .some reasonable time after 
 the money came into his hantls. lie should 
 have put it out, as a prudent man would 
 
 not ahyay.s be let out promptly, much less safe- 
 
 O, at mterest. Simple interest is iisiinllv more 
 
 than can be realized with the utmost diligiuice 
 
 Rowland V. Be.st. 2 McC. K,,. :VJl. The rul!: 
 
 Uut^r., '' ^'^^^''■;:-"^t ^"i f'^^- ">uiual balances, 
 but not so a.s to allow r..iniinun,| interest; and 
 on appeal, tins was sustained. 
 
 Scinell V. .Schroder. Hi.il. Kq. li'.]^. Brown 
 ^;.,^"'V"-<i. Id.. 4m: Jones v.' w4 L' llil" 
 r..l, note; Davi.s^v. Wright. 1,1. .-,(;0; Dixon v 
 Jl.u.ter. ;j Hdl 204. All these rases recoi^w i/e 
 the princii.h. of annual balanc-s. an.! sin.plr in 
 teie.st k..pt u. a separate .•olunin. all repu.jiate 
 the doctrnie of (•omi)ound inten-st. In Dixon v 
 Hunter. ,t is said: the j^rnrra! rule laiddown 
 m Jones v. ^\ est, and D.vis v. Wright. .-harL-in-' 
 interest on annual balan.,.s. n,ay I.e just in ts 
 operation wluue the re<-eipts exce..! the expendi- 
 tures of the current year. Rut wheiv the pav- 
 
 r"i^/fT' /''*-' '••'^•^''"f-^- ti.e re,-..ipts sh. Id 
 be added to the annual balan.v on han.l a 
 from the aggregate the payinnits of that v ,• 
 
 ^S'be^j;la;;!::i."" ^"'^ ""'"'"••• -"^- ^^^-"^ i- 
 
 4Rich.Eq.— H 
 
 I have done with his own. But if. on the other 
 hand, lie should show that he was obliged 
 to keep the money ready for the creditor, it 
 would be very unfair to <-ompel him to pay 
 interest on it. The circumstances must gov- 
 ern in the tlecisiou of such cases. 
 
 Again: Though the general rule is to de- 
 duct from the last annual balance, and the 
 sums received during the current year, all 
 siuiis expended during the same year, reserv- 
 ing the balance thus left as that uiMin which 
 interest sliouhl be computed from the begin- 
 ning of that year; yet there may be siie<'ial 
 circumstances attending particular <ases. 
 which should deflect the rule. 
 
 We see no special circumstances In this 
 case, however, to take it out of the general 
 rule and practice, which are. that a trustee 
 is not chargeable with interest upon moneys 
 received (where there are both receli)ts and 
 expeiKlituresi until the end of the year in 
 which they are received; imr is he entitled (in 
 such a easel to Interest upon his expenditures 
 
 ■ *398 
 until the end of the year. The re*celpts and 
 expenditures are set otf against each other, 
 and the balance carries Interest from the end 
 of the year In favor of the party— trustee or 
 cestui que trust— In whose favor It is cast. 
 The balance, however, may he reduced, (and 
 of course the computation of Interest varied.) 
 by the receipts and expenditures of the year 
 following that in which it is established. 
 As for instance: if in that succeetling year 
 the trustee expends more than he receives, 
 he should be presumed to have held so much 
 of the last annual balance as was necessary 
 to make up the difference; in which case lii- 
 terest should be computed only on the res- 
 idue of the balance not thus employed. Or 
 he may, on the other hand, have received 
 more than he expended, in which case the 
 excess of receipts over expenditures should 
 be applied to the extinguishment of any bal- 
 ance that may have been previously estab- 
 lished In his favor; leaving only the residue 
 of that balance to bear interest for his ben- 
 efit. 
 
 According to these rules. \Ve think this ac- 
 count should have been stated by the com- 
 missioner, and 
 
 It is ordered that the account be remanded 
 to the Circuit Court, and to the commission- 
 er, to be stated according to the opinion ex- 
 pressed by this Court. 
 
 But In seiullng the case back, the Court 
 must accompany It with a further order. 
 
 In Booth V. .Sineath, 2 Strob. Kq. Vil. the 
 Court has laid it down that when a trustee 
 admits his accountability, he must file with 
 his answer a stated account showing the 
 balance which he admits to be due. Where 
 this Is done, (and the answer is incomiilete 
 and subject to exception. If it is not done.) 
 the plaiiititr Is entitled to a short order that 
 the .sum admitted be paid to him. And such 
 an order might have been granted in this 
 
 161
 
 *398 
 
 4 EICHAKDSON'S EQUITY REPORTS 
 
 case, if the account filed with the answer had 
 stated the interest which the defendant ad- 
 mitted, and had struck a balance. As it is, 
 the Court perceives clearly that all interest 
 overcast against the defendant, and all com- 
 missions improperly disallowed to him can- 
 not possibly amount to eight hundred dollars. 
 
 *399 
 Deducting that sum, *therefore, from the 
 sum of five thousand three hundred and 
 eighty-one dollars and seventy-seven cents, 
 reported by the commissioner, it is impossible 
 that the defendant can he injured, if the 
 Court should now order him to pay to the 
 plaintiffs, within thirty days after notice of 
 this decree, the balance, in round numbers, 
 four thousand five hundred and eighty dol- 
 lars. And it is ordered that he do pay them 
 the last mentioned sum accordingly. 
 
 DUNKIX, DARGAN and WARDLAW, CC, 
 concurred. 
 Decree modified. 
 
 4 Rich. Eq. 399 
 
 CATHARINE RAINES and Her Children v, 
 R. C. WOODWARD, Sheriff, et al. 
 
 SAME V. JOHN ADAMS, Sheriff, et al. 
 
 (Columbia. May Term, 1852.) 
 
 [Trusts <®='86.] 
 
 Feme covert purchases negroes for valuable 
 consideration, taking conveyance to herself "for 
 her sole and separate use." The conveyance 
 needs no registration, and creditors of husband 
 impeaching it must show that the negroes were 
 purchased with the funds of husband. 
 
 [Ed. Note.— For other cases, see Trusts, Cent. 
 Dig. § 128; Dec. Dig. <S=»86.] 
 
 ITriists €=140.] 
 
 A mother, in consideration of love and affec- 
 tion for her daughter C, a feme covert, and 
 for "the purpose of contributing to the support 
 and maintenance of said daughter during the 
 term of her natural life, and for the better 
 support, maintenance and education of the chil- 
 dren of said daughter, born or hereafter to be 
 born," conveyed certain slaves to the said C, 
 "in trust for the use, benefit and behoof of the 
 said C. for and during the term of her natural 
 life, and from and immediately after her death, 
 in trust for the use, benefit and behoof of all the 
 children of the said C, equally to be divided 
 between them; in case, however, if any of the 
 children of the said C. ^hall have died in her 
 life time leaving issue, living at the time of her 
 death, such issue shall take the same share of 
 said slaves, which the deceased parent would 
 have been entitled to if living:" Held, that C. 
 took a life estate in the slaves, with remainder 
 to her children. 
 
 [Ed. Note. — For other cases, see Trusts, Cent. 
 Dig. § 186; Dec. Dig. (©=^140.] 
 
 [Husband and Wife <©=pS.] 
 
 That the marital rights of her husband at- 
 tached thereon, and, therefore, that the life es- 
 tate was liable to be sold under fi. fas. against 
 him. 
 
 [Ed. Note.— Cited in Wade v. Fisher, 9 Rich. 
 Eq. 363. 
 
 For other cases, see Husband and Wife, Cent. 
 Dig. § 24; Dec. Dig. <^=^S.] 
 
 [Tnisfs <©=>151.] 
 
 Tliat the children were entitled to an order, 
 that the purchasers at sheriff's sale should give 
 security for the forthcoming of the slaves. 
 
 [Ed. Note. — For other cases, see Trusts, Cent. 
 Dig. § 195; Dec. Dig. (g^^lol.] 
 
 *400 
 
 *Before Wardlaw, Ch., at Fairfield, July, 
 1851. 
 
 Wardlaw, Ch. These bills, filed by the 
 wife and children of William G. Raines, pray 
 that the sheriffs of Fairfield and Lancaster 
 may be enjoined from selling certain slaves, 
 seized under executions against said W. G. 
 Raines, on the ground of a separate estate 
 in the wife, for life, to the slaves, with re- 
 mainder to the children. 
 
 It appears that William Moore, then sheriff 
 of Fairfield district, on July 7, 1828, under 
 executions of Musco Boulware and of Robert 
 Cathcart, against William G. Raines, sold 
 slaves of said W. G. Raines, and conveyed 
 by bills of sale Viny, Milly, Crecy, George, 
 Hannah, Caroline, Lewis, Fanny and Betsy, 
 to Musco Boulware, for the price of $868, 
 and Nathan, Ally, William, Henson. Joe and 
 William, to Robert Cathcart, for $686. On 
 January 8, 1829, Musco Boulware, under his 
 hand and seal, attested by W. R. Boulware, 
 assigned the bill of sale he had received 
 from the sheriff in the following words: 
 "Received of Mrs. Catharine Raines, wife of 
 Wni. G. Raines, sole dealer, $868, the amount 
 for which I purchased the within named ne- 
 gro slaves, and hereby assign this bill of sale 
 to her, for her sole and separate use, but 
 without further responsibility on me." On 
 JanuaiT 10, 1829, Robert Cathcart. under his 
 hand and seal, attested by I). McDowell, as- 
 signed the bill of sale he had received from 
 the sheriff, in the following words: "Receiv- 
 ed of Mrs. Catharine Raines, wife of Wm. 
 G. Raines, sole dealer, $686, the amount for 
 which I purchased the within named negro 
 slaves, and hereby assign tliis bill of sale to 
 her, for her sole and separate use, and with-, 
 out further responsibility on me." It is 
 quite clear on the proof, that Musco Boul- 
 ware was paid for the negroes bid off by 
 him at sheriff's sale, from the proceeds of 
 cotton raised upon W. G. Raines's plantation, 
 but marked in the name of C. Raines ; and 
 it is probable that Cathcart was paid in the 
 same way. Without her conducting the busi- 
 ness of a merchant, or acting otherwise than 
 as a planter's wife, Mrs. C. Raines was 
 
 *401 
 treated as a sole *dealer. The assignments 
 of the sheriff's bills of sale were drawn up 
 by counsel learned in the law, but were not 
 recorded. The visible property of Raines 
 was sold by the sheriff in 1829, and he was 
 regarded as insolvent luitil 1835, when he 
 seemed prosperous, and obtained extensive 
 credit, and so continued until 1847 or 1848, 
 when he was again sold out, except as to 
 
 162 
 
 ®:=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 RAINES V. WOODWARD 
 
 *403 
 
 twelve or fonrteon negroes, which he remov- 
 ed clandestinely from the State, Uuivin;: a 
 large amount of executions unsatisfied. The 
 negroes in question were all tliis time work- 
 ed in commnn witli W. <!. Itaines' other 
 slaves. 
 
 On Oi-tolwr f>. l.S.'?4, Ninny Ilnulware. nintli- 
 er of Catharine I{ain<'s, e.\e<uted a hill of 
 sale ti> said Catharine, of tlie slaves Milly 
 and Mary. Ilannali and four eluldren, Wil- 
 liam, Xan<-y. Harry and January, in winch 
 the grantor recited as consideration, lier love 
 and affection for lier daughter, and "the pur- 
 Iiose of coutrihuting to the support and main- 
 tenance of said <langliter during the term of 
 her natural life, and for the hetter .sui)port, 
 maintenance and educati(m of the children 
 of said daughter, horn or hereaft«'r to he 
 horn," and conveyed said slaves with their 
 future increase to the said Catharine Raines, 
 "in trust for the use, henetit and hehoof of 
 the .said Catharine Raines, for and during 
 the term of lier natural life, and from and 
 iunnediately after her death, in trust for the 
 use, benefit and helnx)f of all the children of 
 the said Catharine Raines, equally to be di- 
 vided between them; in case, however, if 
 any of the children of said Catharine shall 
 have died in her life time leaving issue, liv- 
 ing at the time of her death, such i.ssue shall 
 t.ike the same share of said slaves, which 
 the deceased parent would have been entitled 
 to, if living." This deed was drawn by coun- 
 sel. It was recorded in the register's office, 
 Fairfield, May 2. 1S:'.G. These negrt^es were 
 not treated differently from the negroes that 
 belonged to W. G. Raines. Catharine Raines, 
 however, from 1829 to lS;i4, kept separate 
 accounts with factors in Charleston, and in 
 that interval of time, sold more than two 
 hundred hags of cotton. The negroes con- 
 veyed by Nancy Boulware had been bought 
 
 *402 
 
 l>y her. ♦when they were sold under execu- 
 tions as the property of W. G. Raines. 
 
 The bills of sale by Houlware and Cathcart 
 to Catharine Raines, have all the material 
 elements of a voluntary settlement by a hus- 
 band end)arrassed with debt upon his wife. 
 It is demonstratetl by the proof that Boul- 
 ware was i»aid from the crop made on 
 Haines' jilantation in 1828. and that a sulH- 
 clency of means for the reindnn-sement of 
 Cathcart was also received by Mrs. Kaines 
 from her husliand's crops: and .she furnished 
 no evidence of her having other funds. She 
 is denominated in the assignments of these 
 bills of sale a sole dealer, l)ut there is no 
 evidence that she filled such anomalous char- 
 acter; that she ever gave the notice re(iuin>d 
 by the Acts of 1S2;5 and 1S24, (6 Stat. 2i:?, 
 230;) that she ever carried on any separate 
 trade or business whatsoever. A wife who 
 assumes to be a sole trader, while her hus- 
 band's affairs are endjarrassed. and wlio pur- 
 chases his property, must show clearly that 
 
 she had the means to make the purchases 
 independently of lier husband. In default of 
 such showing her pureha.ses are fraudulent. 
 Miller v. Tolli.son, Harp. Ivi. 14.5 |14 Am. 
 DtH-. 7121; McMeekin v. Kdmoiids. 1 Hill Va\. 
 2i)2 [2(; Am. Dec. 20.';]. Where the husliand 
 really furnishes the funds for the purchases, 
 no matter what may lie tlie form of tlie con- 
 veyance to the wife, tlie transjiction is in 
 substance a voluntary settlement by the hus- 
 band : and the conveyame slioidd be re- 
 corded as a marriage .settlement. Price v. 
 White. Car. I-. .1.. 2M7 (1 Railey Kq. 244]. 
 
 The (piestion as to the negroes embraced 
 in tlie deed from Xancy Boulware depends 
 upon different juinciples. .So far as there Is 
 any evidence on the subject. N'ancy Boulware 
 fairly acquired title to the.se slaves, and for 
 good consideration transferred them to her 
 daughter. This conveyance is not a marriage 
 settlement needing regi.stry. Banks v. Brown. 
 
 2 Hill E(|. '>{'>'» (.".O Am. Dee. :i.s(>]. The diffi- 
 culty in the way of Catharine Kaines is that 
 the deed contains no suHicient exi)re.ssi<m of 
 any intention of the donor to exclude the 
 marital riglits of W. (i. Raines. There is 
 nothing in the provision that the slaves 
 
 *403 
 should be for the use, benefit and *behoof of 
 Catharine Raines for life, inconsistent with 
 their being subject to his marital rights. 
 Tyler v. Lake, 2 Russ. ,and Myl. is.'',; Black- 
 low v. Laws. 2 Hare. 40; Wilson v. Bailer. 
 
 3 Rtrob. Eq. 200 [51 Am. Dec. r.TSl. It was 
 argued that the fact of the gift being to her 
 "in trust" for her use. &c., was suHicient to 
 exclude the husband. In Tyler v. Lake, in 
 Stanton v. Hall, 2 Russ. and Myl. 175, and 
 other cases, the gifts were to tru.stees. and 
 did not impair the husl>and's rights; in the 
 present case no trust Is definitely created. 
 I think the injunction granted by the com- 
 missioner, of the sale of tliese negroes under 
 fi. fas. against W. G. Raines, must be counter- 
 manded, so far as the life estate of Catha- 
 rine Raines is concerned. 
 
 I supiX)se, however, that the children of 
 Catharine Raines take the remainder in fee 
 of said slaves, as purchasers, after the ter- 
 mination of her life estate. The construc- 
 tion of the instrument of gift is clear, that 
 her children were intended to take at her 
 death as tenants in common. Myers v. Amler- 
 soii, 1 Strob. E(i. 344 [47 Am. Dec. 537) ; 
 Henry & Talbird v. Ardier, Ball. E(i. 5.35. 
 The plaintiffs, who are children of Catharine 
 Raines, are entitled to have .security for the 
 forthcoming of the slaves at the termination 
 of the life estate, from those who may pur- 
 chase the life estate at sheriff's sale. Prlngle 
 V. Allen, 1 Hill Eq. 137; Cordes v. Ardrian, 
 lb. 157. 
 
 It Is ordered and decreed, tliat the bill be 
 dismissed as to all matters, except the claim 
 of the children of Catluirine Raines to the 
 slaves conveyed by Nancy Boulware upon the 
 death of said Catharine. It is further or- 
 
 1G3
 
 *403 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 dered and decreed, that upon the sale of so 
 many of these slaves as have been taken in 
 execution, the purchasers shall, before de- 
 livery of the slaves, enter into bond to the 
 commissioner of this Court, with good sure- 
 ties to be approved by him, in penalties 
 equal to twice the value of the slaves, condi- 
 tioned that said slaves shall not be taken 
 beyond the limits of this State, and that 
 those of them then living, with any increase 
 of the females, shall be forthcoming at the 
 termination of Catharine Raines' life estate 
 therein. Costs to be paid out of the sales. 
 *404 
 *The complainants appealed: 
 
 1. Because the Chancellor erred in decid- 
 ing that the deeds made by William Moore, 
 sheriff, to Robert Cathcart and Musco Boul- 
 ware, for certain slaves, and by them assign- 
 ed to Catharine Raines, for her sole and 
 sepai'ate use, are fraudulent as to creditors, 
 on the ground, that there was no proof of any 
 funds belonging to Catharine Raines, to pay 
 for the same, when from the proof it appeared 
 that the money to pay for said slaves was 
 made by their labor, on the lands of Mrs. 
 Raines, secured to her sole and separate use. 
 
 2. Because the Chancellor erred in deciding 
 that by the terms of the deed for certain 
 slaves from Nancy Boulware to Catharine 
 Raines, no separate estate was secured to 
 lier, when from the expressions in the ileed, 
 said slaves were conveyed expressly in trust 
 to the said Catharine Raines, for the support 
 of herself and education of her children, and 
 being given in trust, this Court should protect 
 the trust, and secure them from the creditors 
 of the husband. 
 
 McAliley, for appellants. 
 Buchanan, contra. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW, Ch. The two claims present- 
 ed by the plaintiffs are distinct in their ori- 
 gin, in the principles which govern the deci- 
 sion of them, and I may add, in the interests 
 of the claimants. 
 
 1. As to the transfers of slaves from Musco 
 Boulware and Robert Cathcart to Catharine 
 Raines. 
 
 The instruments of conveyance transfer the 
 title of the slaves to her, expressly for her 
 "sole and separate use." If such independent 
 title in her had proceeded from the gift of 
 the grantors, or from sale by them where 
 the purchase money had been paid from her 
 separate funds, undoubtedly such title would 
 have been valid, and the instruments of con- 
 veyance would need no registration. Banks 
 V. Brown, 2 Hill, Eq. 565 [30 Am. Dec. 3S0]. 
 And as the instruments here are formally for 
 the separate use of the wife, and acknowl- 
 edge payment by her, the defendants are 
 
 *405 
 bound to show *that they present a false 
 appearance, and that the payment was really 
 164 
 
 made from the funds of the husband. Cn r.i- 
 tors of the hxisband had no just cause of 
 complaint, unless property of the luisbaud, 
 liable to the satisfaction of their claims, has 
 been improperly diverted to the support of 
 the husband's family. The conclusion that 
 there was such misapplication of the hus- 
 band's funds, depends mainly on the assump- 
 tion that tue plantation, which afforded the 
 means of payment, belonged to the husband, 
 at least as to the usufruct. But the proof on 
 this point is not satisfactory. It appears 
 from the notes of evidence, that the planta- 
 tion was derived from the bounty of ihe 
 father and brother of the wife ; and some 
 implication that the husband had no owner- 
 ship of it, arises! from the fact that vhe 
 creditors did not seize and sell it under their 
 executions. It is strongly asserted before us, 
 that it was settled to the separate use of the 
 wife. We are little disposed to encourage 
 appeals, on questions of fact, from a Chancel- 
 lor's conclusions from the evidence ; or to 
 allow parties to be again heard after one 
 fair opportunitj' of establishing their claim 
 or defense. But in the present instance, the 
 Chancellor who heard the cause, upon review, 
 concurs in the propriety of another investiga- 
 tion for the fuller development of the facts: 
 and such is the determination of this Court. 
 
 2. As to the slaves conveyed by Nancy Boul- 
 ware to Catharine Raines. 
 
 In Tyler v. Lake, (6 Con. Eng. Ch. R. 4,52,) 
 the trust was to pay the proceeds of real es- 
 tate! into the proper hands of a married 
 woman for her own use and benefit. Lord 
 Brougham says: "I take the principle to be 
 thoroughly established, that Courts of Equity 
 will not deprive the husband of his rights 
 at law, unless there appears a clear inten- 
 tion, manifested by the testator, that the 
 husband should be excluded." He further 
 remarks: "If sufficient strength of negative 
 words is not to be found in the gift or limi- 
 tation, you are not allowed to fish about for 
 indications of intention from other parts of 
 the instrument." This latter remark has 
 much force and point, but it must not be 
 
 *406 
 pressed to the *extent of making an exception 
 as to this particular case of marital rights 
 from tlie general rule of construction, that 
 the intention is to be collected from the whole 
 instrument. Sir James Wigram truly says, 
 in Blacklow v. Laws, (24 Eng. Ch. R. 50): 
 "Courts of Justice invariably affirm the prop- 
 osition that an intended gift shall take effect, 
 provided the Court can find in the instrument 
 a declared intention to give, although the 
 simple words of limitation, unaided by im- 
 plication arising out of other parts of the 
 instrument, might leave the intention un- 
 certain." 
 
 It is argued from the consideration express- 
 ed in Nancy Boulware's deed, to provide not 
 only for the maintenance of Catharine Rain- 
 es, but for the maintenance and education of
 
 BOGGS V. ADGER 
 
 *408 
 
 her children, that we may infer the inten- 
 tion of tlie donor to create a trust for the 
 immediate joint benefit of the children with 
 their mother. If we collate the terms in the 
 consideration with the terms of limitation, 
 it is altogether plain that it was the inten- 
 tion of the donor to give not a joint estate, 
 but the whole estate to Mrs. Raines for life, 
 and after her death to her children. The 
 case of the plaint ilTs would not be helped by 
 regarding the gift for the joint use of the 
 wife and children. In Wardle v. Clayton, 
 (IG Eng. Ch. R. 524,) a testator bequeathed 
 his residuary estate to trustees, in trust, to 
 pay the income to his wife for life, to he by 
 her applied for the maintenance of herself 
 and such children as he might leave at his 
 death. The widow married again, and claim- 
 ed the income for her separate use. V. C. 
 Shadwell rejected the claim because she was 
 not the sole object of bounty. It is natural 
 and usual for a donor who is under parental 
 obligation to the donee, to express as the 
 motive of gift, that the donee may better 
 support himself and those who are dependent 
 upon him; and the expression of such motive 
 cannot operate restrictively upon the gift. 
 
 The terms of gift or limitation in the pres- 
 ent case create no definite trust. We have 
 the word, but not the thing. A trust is an 
 equitable title in property, distinct from the 
 legal ownership thereof. But a gift to one 
 
 *407 
 in trust for himself — and a gift of *chattels 
 to a wife is a gift to the husband — confers 
 the whole estate, legal and equitable, upon 
 the donee. Here no trust or confidence is 
 reposed in the nominal trustee; no duty or 
 obligation distinct from ownership is pre- 
 scribed to her. Her legal and equitable in- 
 terests are commensurate, and nothing is to 
 be done by her legal representatives after 
 her death for the protection of the rights of 
 her children in remainder. The Chancellor 
 was well justified by the precedents he cites 
 in protecting the legal rights of the children 
 in remainder, by requiring forthc-oming bonds 
 from the purchasers of the life estate ; and 
 no remedy more complete could be afforded to 
 them. If we regarded their rights as eiiuitablo. 
 
 We approve the decisions of Rice v. Bur- 
 nett, Speers, Eq. 579 [42 Am. Dec. 33G], and 
 lorr v. Hodges, Speers, Eq. 59.3; but those 
 cases recognize the merger of the legal and 
 equitable estates where the trustee has no 
 duty to perform. 
 
 The case of Jones v. Fort, 1 Rich. Eq. 50, 
 so strongly pressed upon us in the argument, 
 goes quite as far as we are willing to follow, 
 but is distinguishable from the case in hand. 
 There, certain slaves were given to the hu.s- 
 band in trust for the joint use of himself and 
 wife during her life, and at her death to be ! 
 distributed among her children; and the 
 trust was held to be effectual. Rut the hus- I 
 band was express trustee: the wife's right of ■ 
 
 survivorship could only be protected by pre- 
 venting the fusion of the legal and equitable 
 estates ; these estates were not connueu- 
 surate. Chancellor Harper, in delivering the 
 judgment, says: 'As trustee, he (the hus- 
 band) has an absolute estate in the proi>erty, 
 or, as it is sometimes .said, the fee; as ces- 
 tui que trust he has only an estate for the 
 joint lives of him.self and wife. The legal 
 estate is exclu.sively in him as trustee: he 
 takes the equitable estate jointly with his 
 wife." 
 
 It is ordered and decreed that so much of 
 this case as relates to the slaves transferred 
 by M. Roulware and R. Cathcart be remanded 
 to the circuit Court to be heard and deter- 
 
 *408 
 mined anew ; *and that the circuit decree be 
 modi lied in this particular, and in other mat- 
 ters l)e affirmed. 
 
 JOHNSTON and DARGAN, CC, concurred. 
 Decree modified. 
 
 4 Rich. Eq. 408 
 
 GEORGE W. I{()(;(;s iiiid ISAT'.KLLA, His 
 
 Wife. V. JOHN AHGER. 
 
 (Columbia. .May Term, 1S52.) 
 
 [Guardian and Ward <S=>;;!».1 
 
 In 1S.30 an adininistrator Iiavinp: in his 
 haiuls funds of an infant, distributcp of liis in- 
 testato, invested the same in stock of ♦^lu' Bank 
 of the Initi'd States: iu ItCJo a guardian was 
 appointed for tlie infant, who received, from the 
 administrator, the stock, in full of the infant's 
 share, &c. : the B;ink was iu lugii credit until 
 1839, when the price of the stock sank suddenly 
 and greatly in the market.— it finally became 
 almost worthless:— //cW, that the guardian was 
 not liaide for the depreciation in the value of 
 the stock. 
 
 I Ed. Note. — For other cases, see Guardian 
 and Ward, Cent. Dig. § 170; Dec. Dig. <@=539.| 
 
 [Trmfn <©=218.] 
 
 There is no rule in this State prescribing 
 the securities on which trust funds shall be lent 
 or invested: and where a trustee, in investing 
 funds, acts faithfully and with conunon dili- 
 gence and sagacity, he will not be liable if tlio 
 funds be lost. 
 
 [Ed. Note.— Cited in Sollee v. Croft. 7 Rich. 
 E(i. 46; Moore v. Hood. 9 Rich. Eq. 32.S. 70 
 Am. Dec. 210; .knelling v. McCrearv. 14 Rich. 
 E<i. .300 ; xXance v. Nance. 1 S. C. 221. 224 ; 
 I'ope V. Mathews. 18 S. C. 448. 
 
 For other cases, see Trusts. Cent. Dig. SS 
 310-313; Dec. Dig. <©=»21S.l 
 
 Before Wardlaw, Ch. at Fairticld. July, 
 1851. 
 
 William Adger, jun. died intestate in 1826, 
 and his father, William Adger, sen., became 
 his administrator. The estate was converted 
 into money, and the administrat<u-. having 
 paid the plaintiff, Isabella, who, as widow of 
 the intestate, was one of his distrilnitees. her 
 share in full, made a return to the ordinary, 
 in June, 1830, in which he charged himself, 
 on one side, with the share of William Law 
 Adger. an infant son of the intestate and the 
 
 ^=»For other eases see same topic and KL V- Xl'.MBEK in all Key-Numbered Digests and Indexes 
 
 165
 
 *408 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 plaintiff Isaljella, and a distributee of tlie in- 
 testate, and discharged liimself, on the other 
 side, with the purchase of a number of 
 shares in the stock of the Bank of the Unit- 
 ed States, at $120 a share. 
 
 The defendant was appointed by the Court 
 of Equity, March 14, 1835, guardian of Wil- 
 liam Law Adger, and immediately after his 
 appointment received from the administra- 
 tor of William Adger, jun., the aforesaid 
 
 *409 
 shares in the stock of the Bank of the *Uuit- 
 ed States, in full of his ward's interest in the 
 estate of his father. This stock, for con- 
 venience of receiving dividends and making 
 transfers, stood, at the time, in the name of 
 James Adger, a merchant of Charleston of 
 high reputation for experience, intelligence 
 and probity ; and so continued to stand until 
 February 28, 1838, when James Adger, con- 
 templating a trip to Europe, transferred the 
 certificates to the defendant as guardian. 
 James Adger teistilied, that soon after his ap- 
 pointment, defendant took the counsel of wit- 
 ness as to the policy of retaining for his 
 ward the investment already made in the 
 Bank of the United States, and of making 
 further investments therein from accruing 
 dividends, and other profits of the ward's es- 
 tate; that witness highly recommended this 
 stock as safe and profitable, but as the Bank 
 of Charleston was about to go into operation, 
 it was agreed that the defendant for his ward 
 should subscribe for shares in that institu- 
 tion, and accordingly, on May 30, 1835, de- 
 fendant sold out 30 shares in the Bank of the 
 United States, at $112.50. and subscribed for 
 shares in the Bank of Charleston, but on the 
 apportionment among the subscribers, from 
 the extraordinary excess of subscriptions to 
 the stock, received only 3 shares in the Bank 
 of Charleston, as his allotment ; and in Oc- 
 tober and November, 1835, under James Ad- 
 ger's counsel, he again bought 30 shares in 
 the Bank of the United States, at $108 and 
 $109. 
 
 The defendant in his first return as guard- 
 ian, to the commissioner, made April 10, 1836, 
 charged himself to his ward with 41l^ shares 
 in the stock of the Bank of the United States, 
 and with 3 shares in the Bank of Charles- 
 ton. In his subsequent annual returns, he 
 charged himself with dividends, and discharg- 
 ed himself by the purchase of a few addi- 
 tional shares in the Bank of the United 
 States, and other investments. 
 
 William Law Adger died June 11, 1842, 
 aged about twenty years, intestate; and 
 plaintiffs administered on his estate. This 
 bill, which was for an account, was filed 
 May 31, 1847. 
 
 Wardlaw, Ch. The question submitted to 
 me, is whether defendant as guardian must 
 
 *410 
 be responsible to the representatives of *his 
 ward, for the depreciation in value of the 
 stock of the Bank of the United States, in 
 
 166 
 
 which a large portion of the ward's funds 
 was invested. The defendant when appointed 
 guardian, received such stock from tlie for- 
 mer trustee of his ward, and after an un- 
 successful attempt to change the investment 
 into stock of a Bank of the State, he contin- 
 ued the original investment ; and the Bank 
 of the United States became bankrupt, and 
 the stock almost worthless. 
 
 Much denunciation was uttered, in the 
 course of the case, against the Bank of the 
 United States, as a foreign, political and 
 speculating institution. The only question, 
 in which we are concerned, is whether in- 
 vestment in the stock of this bank, and the 
 maintenance of the investment, can be re- 
 garded as .iudieious operations, under the 
 circumstances of this case. In I^ngland, 
 trust funds are usually required to be invest- 
 ed in consols ; but we have no rule prescrib- 
 ing the securities on which trust funds shall 
 be lent or invested. A trustee, here, is re- 
 quired to act faithfully in the interests com- 
 mitted to him, but the general management 
 is left to his discretion. It is well establish- 
 ed by the copious evidence, that this bank 
 was in high credit in this State, and its 
 stock eagerly sought for investments by capi- 
 talists, trustees and bodies corpora*"e, until 
 the fall of 1839, when the price of the stock 
 sank suddenly and greatly in the market. 
 Long after this time the hope was entertain- 
 ed by astute and practical men, that the 
 stockholders would be finally re-iml)ursed ; 
 and few persons acted upon the policy of sell- 
 ing out at the prices so suddenly reduced. 
 The result has been the sacrifice of about 
 three millions of capital to this State, fall- 
 ing even disproportionately, upon the pru- 
 dent, and the circumspect. Some sagacious 
 pei-sons distrusted the bank long before its 
 downfall, but they failed to infuse their su.s- 
 picions into ordinary men of business. 
 
 The office of trustee is onerous in itself, 
 and the exercise of it commonly demanded 
 in the affairs of society ; and to require from 
 a trustee more than connuon sagacity and 
 diligence, is against policy. In many of our 
 
 *411 
 cases, it has been laid down as a rule, *that 
 a trustee is answerable for those losses only, 
 which are occasioned by such acts or omis- 
 sions, as a prudent man would not do or omit 
 in his own affairs. Taveau v. Ball, 1 McC. 
 Eq. 464; Bryan v. Mulligan, 2 Hill Eq. 3(>4 ; 
 Glover v. Glover, McMul. Eq. 153; Odell v. 
 Young, lb. 155. Upon this rule, the trustee 
 in the present case must be excused from lia- 
 bility. He managed the funds of his ward 
 as prudent men in the State managed their 
 own affairs. In Hext v. Porcher, 1 Strob. 
 Eq. 170, the liability of the trustee is placed 
 generally upon his faithfulness ; and it is 
 justly remarked that the rule quoted above 
 is subsidiary and illustrative. To the present 
 defendant no intentional unfaithfulness is 
 imputed in the discussion, nor could be im-
 
 HICKS V. TEGUES 
 
 *41J 
 
 imtt'tl with any iiroprifty accordinj^ to the 
 evidence. He lias honestly endeavored to 
 fiillil his duty. No nef.'li;renoe, no unusual 
 mistake, has attended his nianaj;euient. I 
 am of oiiinion, that the loss on the stock in 
 the Haid< of the I'nited States must fall 
 upon the estate of his ward. 
 
 It is ordered and decreed, that the eomniis- 
 sioner of this Court take the account between 
 the parties, upon the i)rincii>les stated in this 
 o[iinion; that the plaintitYs are entitled to 
 cliarjre the defendant with the funds received 
 iiy defendant as guardian of Wm. L. Adj,'er, 
 on the settlement in l.S''.r». with subseciuent 
 increment: and that defendant is entitled to 
 he discharjied as to his investment in the 
 stock in the liank of the I'nited States, ui)on 
 transferrin?,' the scrip, or payinj? its present 
 value. Costs to be paid from the estate ol 
 William L. Adf^er. 
 
 The plaintift's appealed and moved to n)od- 
 ify the decree, on the ground: 
 
 That if the United States liank stock, own- 
 ed by Wm. Adger. sen., had been lawfullj' 
 transferred, the defendant, as guardian, ought 
 not to have received it in payment of the 
 shares of his ward, William Law Adger, in 
 his father's estate, and ought not to have 
 continued said funds in said bank, or to have 
 re-invested the profits therein ; and after the 
 charter of the Bank of the United States had 
 expired, March 1, IS.'iG. defendant was espe- 
 
 *412 
 cially at *fault in re-investing his ward's 
 funds in the I'ennsylvania Bank, called the 
 United States Bank of Pennsylvania, and 
 further in continuing the funds in said bank. 
 
 Boyce, for appellants. 
 
 Boylston, contra. The Court of Eijuity has 
 always treated trustees, acting in good faith, 
 with great tenderness. In Knight v. The 
 Karl of IMymouth, a receiver had deposited 
 money with a banker of good credit, who aft- 
 erwards failed, and as he was not charge- 
 able with any willful default or fraud, he 
 was not held responsible for the loss of it. 
 "Suppose," said Lord Ilardwicke, "a tru.stee 
 liaving in his hands a considerable sum or 
 money, places it out, for the benefit of the 
 cestui que trust, in the funds, which after- 
 wards sink in their value, or on a security 
 at the time perfectly good, and which after- 
 wards turns out not to be so, was there ever 
 an instance of the trustee's being made to 
 answer for the actual sum so placed out? I 
 answer, no! If there was no mala fides, 
 nothing wilful in the conduct of the trustee, 
 the Court will always favor him. For as a 
 trust is an office necessary in the concerns 
 lietween man and man, and which, if faith- 
 fully discharged, is attended with no small 
 degree of trouble and anxiety, it is an act of 
 great kindness in nny one to accept of it. To 
 add hazard or risk to that trouble, and to 
 subject a trustee to losses which he could not 
 
 foresee, would be a manifest hardshiii. and 
 would be deterring every one from accepting 
 so necessary an office." Dick. IL'O; S. C. 3 
 Atk. 480. The same rule was followed in 
 Kowth V. Howell, 'd Ves. 505. In Wilkinson 
 V. Stafford, 1 Ves. juu. 41, Lord Thurlow 
 held, that a trustee was not answeral)le for 
 having applied the trust proin-rty, even to 
 what turned out to be a losing adventure, 
 if without fraud or negligence. Though an 
 executor or trustee may be liable for negli- 
 gence, it must, as Lord Keei)er North ob- 
 serves, be very supreme negligence, 1 Vern. 
 144: it nmst be crassa negligentia. or gross 
 negligence, 1 Madd. H. L'StO. When a trustee 
 acts by other hands, either fnuu necessity 
 or conformably to the common usage of man- 
 kind, he is not to be matle answerable for 
 losses, Amb. i.'19. The following authorities 
 
 •413 
 *were also cited and commented upon: 2 
 Story Eq. § 1272; Taveau v. Ball. 1 McC. 
 Ch. 464; Bryan v. Mulligan, 2 Hill Ch. ;i64: 
 (ilover v. Glover. .Mc.M. Eq. 15:^; Gdell v. 
 Young. lb. 155: Hext v. Porcher. 1 Strob. 
 Eq. 170: The Vestry, &c.. of Prince George 
 Winyaw v. The Prot. Epis. Soc. &c., MS. 
 Charle.ston, January. 1849. 
 
 Dargan, same side, was stopped by the 
 Court. 
 
 Buchanan, in reply. 
 
 PER CURIAM. This Court perceives no 
 error in the decree appealed from. It Is 
 therefore ordered, that the same be affirmed, 
 and the appeal dismi.ssed. 
 
 JOHNSTON. DUNKIN, DAKGAN and 
 WARDLAW. CC, concurring. 
 Appeal dismissed. 
 
 4 Rich. Eq. 413 
 
 ANN V. HICKS V. THOMAS E. R PEGUES 
 
 et al. 
 
 (Columbia. May Term. 1852. » 
 
 [Wills <S=5(>;!4.] 
 
 Devise of property, resd and porsoiinl. to C. 
 B. in fee. "but if she should die without leaving 
 issue livin;; at her deatii'" then over to W. \'. in 
 fee: W. \'. died in the life time of C. P... and 
 she then died without issue: JJcld. that W. Vs. 
 estate in expectancy, both in the real ami per- 
 sonal property, passed at his death to his licirs 
 then existing, and that they and their represent- 
 atives were entitled to distriliution of tlie prop- 
 erty when the expectancy fell in : and that the 
 heirs of W. V. existing at the time the ex- 
 pectancy fell in were not exclusively entitled. 
 
 fEd. Note.— Cited in Varu v. Varn, .".2 S. C 
 7'.). 10 S. E. 820. 
 
 For other cases, see Wills, Cent. Di;;. § 1497; 
 Dec. Dig. <©=3G:54.1 
 
 [Descent and Dintrihution C=>17.] 
 
 Under the Act of distributions of tins State, 
 actual seisin is not necessary to enable one, hav- 
 ing a i)reseut title to an estate, to become the 
 stock or root of inheritance: contingent re- 
 mainders and ex<H*utorj- devises are, by that Act, 
 
 ®=»For other cases see same topic aud KKY-NUMBEH iu all Ke^-Numbered Digests aud Indexes 
 
 167
 
 *4K 
 
 4 RICHARDSONS EQUITY RErORTS 
 
 distributable among the heirs existing at the 
 death of the person entitled to the estate in ex- 
 pectancy, and not among his heirs existing when 
 the expectancy falls in. 
 
 [Ed. Note.— Cited in Evans v. Godbold, 6 
 Rich. Eq. 38; Glover v. Adams, 11 Rich. Eq. 
 267; Blount v. Walker, 31 S. C. 30, 9 S. E. 
 804. 
 
 For other cases, see Descent and Distribu- 
 tion, Cent. Dig. § 51; Dec. Dig. <©=3l7.] 
 
 Before Wardlaw, Cli., at Marlboro', Febru- 
 ary, 1851. 
 
 The only question in this case arose upon 
 the following clause in the will of Malachi 
 N. Bedgegood: 
 
 "I give, devise, and bequeath luito my wife, 
 *414 
 Catharine Bedge*good, a negro man slave, 
 named Primus, and the one-half of the re- 
 maining part of all my real and personal 
 estate, which has not herein before been dis- 
 posed of, to her and her heirs, provided she 
 shall live single until, or should marry and 
 leave lawful issue living at her death ; but 
 in case she should marry, and die without 
 leaving lawful issue living at her death, I 
 then give, bequeath, and devise the same to 
 her for life, and no longer; and after her 
 decease, I give, devise, and bequeath the 
 same unto my nephew, William Vernon, and 
 his heirs." 
 
 Catharine Bedgegood married, and died, 
 leaving no issue. Williams Vernon died 
 many years previously, intestate, leaving the 
 complainant, an aunt of the whole blood, 
 and Mary Elizabeth Hamer, an aunt of the 
 half blood, surviving him, they being his 
 nearest relations at the time of his death. 
 Mary Elizabeth Hamer afterwards intermar- 
 ried with one Charles Gee, and died before 
 Catharine Bedgegood, leaving her husband 
 and several children her surviving. The 
 complainant in her bill claimed all the in- 
 terest of William Vernon, under the forego- 
 ing clause in Malachi N. Bedgegood's will, in 
 exclusion of the husband and children of 
 Mary E. Hamer, on the ground, that she was 
 the nearest relation to Vernon, at the time of 
 the happening of the contingency upon which 
 his interest was to vest. The defendants in- 
 sisted in their answer, that Mary E. Hamer, 
 being alive at the death of William Vernon, 
 acquired thereby a right to one-half of the 
 interest aforesaid, which, on her death, was 
 transmitted to her heirs at law. 
 
 The presiding Chancellor being of opinion, 
 that the distributees of Vernon, existing at the 
 time of his death, were entitled to the bene- 
 fit of the limitation to him, and that the com- 
 plainant, who stood in the nearest relation to 
 him at the time of the expectancy falling in, 
 was not exclusively entitled, it was decreed 
 that a writ of partition do issue, to allot to 
 the complainant one-half of the interest of 
 the said William Vernon in the real and per- 
 sonal estate, instead of the whole, as claimed 
 by her bill. 
 
 The complainant ai)pealed, on the groiuid, 
 *415 
 that being nearest *of kindred to William 
 Vernon at the time of the expectancy falling 
 in, she is exclusively entitled to the benefit 
 of the limitation to him. 
 
 Dutlley, Johnson, for api)ellant. 
 Inglis, contra. 
 
 Curia per JOHNSTON, Ch. Being direct- 
 ed by my brethren to announce the affirma- 
 tion of the circuit decree, and to oiler the 
 reasons for this decision, I cannot express 
 them better than by referring to the opinion 
 I lately delivered in the Circuit Court of 
 Charleston, in the case of Buist & Dawes (a) 
 
 *416 
 upon the same *point; a copy of which 
 accompanies this opinion. That decision was 
 
 (o) George Buist, Adm'r., v. H. P. Dawes 
 
 et al. 
 [Wills <s=s506.1 
 
 [Cited in Evans v. Godbold, 6 Rich. Eq. 38, 
 to the point that heirs of the same person may 
 be different individuals at different epochs.] 
 
 [Ed. Note.— For other cases, see Wills. Cent. Dig. 
 § 1090; Dec. Dig. ©=3506.] 
 
 [This case is also cited in Blount v. Walker, 31 
 S. C. 30, note, 9 S. E. SU-J, and distinguished 
 therefrom.] 
 
 This cause was heard in the Circuit Court 
 of Charleston, in February, 1852, by Johnston, 
 Ch., upon tiie following case stated, and ques- 
 tions submitted, by counsel. 
 
 Edward Tonge devised his real and personal 
 estate to his wife, during widowhood, with re- 
 mainder, in case of her death, or marriage, to 
 his mother, for life, — remainder to James Boone 
 I'erry for life. i. e. "the use thereof for life, 
 and at his decease the said lands, slaves and 
 premises shall be and is hereby vested in the 
 male issue of the said .James, (and in default of 
 such in the issue femalei surviving him; and 
 if a general failure shall be at the death of the 
 said James, I give said land and slaves to my 
 cousin, John W. Sommers, on the same terms, 
 conditions, limitations and reservations as this 
 is made liable to, in respect to James's interest 
 therein, in pursuance of this my Mill; and 
 should there be a total failure of issue (immedi- 
 ate) on the decease of the said .John W. Sora- 
 mers, I give the said land and slaves, and the 
 issue and increase of the female slaves to his 
 (the said J. W. S's.) brother, James D. Som- 
 mers, his heirs and assigns forever." 
 
 The widow married again ; and testator's 
 mother succeeded to her life estate ; and .James 
 liooue I'erry having died without issue, in her 
 life time, at her death the estate passed into 
 the possession of John W. Sommers. 
 
 James D. Sommers died in the life time of 
 James Boone Perry and John W. Sommers, 
 intestate and without issue. 
 
 John W. Sommers died in January, 1848, 
 without issue, leaving a will. 
 
 At the death of James D. Sommers, his heira 
 at law, or distributees, were his sisters, Mary 
 Buist and Henrietta Rowand, and his brother, 
 John W. Sommers, all deceased. 
 
 At the death of John W. Sommers, the heirs 
 at law, or distributees of James D. Sommers, 
 or persons then answering that description, were 
 and are, his nieces and nephews, Mary S. Lamb, 
 
 *416 
 (wife of Jas. Lamb.) *Martha Buist, George 
 Buist, Rev. Ed. T. Buist, liobert Rowand, Mar- 
 
 168 
 
 <&=»FQr other cases see same topic.and_KEYz NUMBER in all Key-Numbered Digests and Indexes
 
 BUI6T V. DAWES 
 
 *418 
 
 acquiesced in by the eminent counsel con- ] 
 cerned. 
 
 It is ordered that the decree be ulHrujed, 
 and the appeal dismissed. 
 
 DINKIX. DAKGAX and WAICDLAW, CC , 
 concurred. 
 
 Appeal dismissed. 
 
 tha S. Drayton, (wife of Alfred R. Drayton.) 
 and IMnry K. Simons, (wife of Dr. Thos. Y. 
 
 Simons.) 
 
 At June Tei-m, ISIS. Chancellor Dargan held 
 that tilt' ultorior limitations of Edward Tungc's 
 will were valid as to tiie personal estate: and 
 that James 1). Summers touk a cdntin^jcnt inter- 
 est in the same that was transmissii)le to his 
 personal representative ; and that, at the death 
 of John W. Summers without issue living, tiie 
 said personal ('state w is distrihutaMe amon^ 
 them, and that those peisons (parties to the bill) 
 were to be regarded as the distributees of J. p. 
 Sommers, who would fall within that de.scrip- 
 tion at the period of his death, and his or her 
 or their leual rei)resentatives. 
 
 As to the real c'state he held, that the terms 
 of the devise created a fee conditional in James 
 Koone I'erry, and that, on his death without 
 issue, the same reverted to the right heirs of 
 testator, and he adjutlucd Ann I'erry to be en- 
 titled to the same as tiie .sole surviving heir of 
 Edward Touge; and he ordered that each party 
 pay his own costs. 
 
 From this decision there was an appeal, on 
 the following among other grounds: 
 
 That the real estate of Edward Tonge is, by 
 his will, well devised over, on the deaths of 
 James Boone I'erry and John W. Sommers, 
 without leaving issue, to James D. Sommers 
 in fee. 
 
 That both the real and personal estate of tes- 
 tator, on the death of John W. Sommers with- 
 out issue, passed, under testator's will, to Jas. 
 D. Sommers. and are distributable among the 
 jiersons answering the desoriiitiou of heirs or 
 distributees of .James, at the death of .John, and 
 not among those answering that description at 
 the death of James, as decreed by the Chan- 
 cellor, in relation to the personalty. 
 
 That the decree as to each party paying his 
 own costs should be modified, several of the de- 
 fendants being minors, one having filed a dis- 
 claimer, and several others having been made 
 parties only to cpiiet the title to the property. 
 
 The Equity Court of Api)eals, at January 
 Term, 1849, affirmed Ch. Dargan's decree as to 
 the personalty, but referred to the Court of 
 Errors the construction of the will as to the 
 real estate, and as to wnat estate James Boone 
 Perry took therein under the said will, whether 
 he took a fee conditional therein, and, if so, 
 
 *417 
 whether there *could be a limitation thereon, by 
 way of executory devise, to John W. Sommers, 
 and if he died without issue to James D. Som- 
 mers(&). 
 
 The Court of Errors, at January Term. 1852. 
 merely decided that .Tames Boone Perry did not 
 take a fee conditional in the real estate. 
 
 The following questions remain for adjudica- 
 tion. 
 
 1. Whether the limitation over of the real es- 
 tate in fee to James D. Sommers, on the death 
 of John, without issue living, is valid? 
 
 2. Whether if said linutation over be good, the 
 said real estate is to be disfributed among the 
 heirs of .Tamos, at the death of .Tames, or the 
 heirs of .Tames at the death of John. 
 
 Yeadon. The T^nglish rule is cleay. 3 Cruise. 
 412, Tit. i:)esceut; Fearn^. 501. note a; 2 Wil- 
 son, 20, Goodright v. Searle; 2 Hill, Ch. .j.jO, 
 
 (b) See the case reported [Buist v. Dawes] 4 
 Strob. Ea. 37. 
 
 Wilson V. Freer. The .\ct of 1701, (5 Stat. 1G3,> 
 has not altered this rule. 
 
 There is no express rule of English descents, 
 e.\cept in the special cases where estates were 
 to be distributed. 
 
 Hayne. contra. J. D. Sommers takes a fee. 
 It is cuiitin'-ent. but it is in a per.-^ou designated. 
 It is real estate: and transmissihle. assignable, 
 inheritable. 2 Mill, 04. .McDtmald v. McMul- 
 laii ; 2 Saund. K. .'{NS. note. Purefoy v. Rogers, 
 lie aught devise or release it. By the 2d sec- 
 tion of the Act personalty shall be distributed 
 as realty is. 1 Hill. Ch. 2(is. Adams v. Chap- 
 lin; 2 Id. 247, Deas v. Horry; id. 41G, Ed- 
 wards v. Barksdale; 2 Tuck. Bl. Append. 14, 
 IG. 
 
 Memminger. same side. Devisable and dis- 
 tributaltle are, under our Acts, cuunter|)arts. 
 Whatever can be devised, if not devised, is dis- 
 tributed. 
 
 Petigru, in reply. The Act of 1701 has not 
 abolished the pre-e.xisting rule. It does not de- 
 stroy the distinction between realty and i)erson- 
 alty in ihe following particulars: 1. The real 
 does not go to the administrator: .Vliter as to 
 personalty. 2. Descent is still the law of real; 
 the personal is merely transnussilde. 3. Alien- 
 age and citizenship still alTrct descent of leal. 
 
 4. The ordei- of lial)ility for debts is not altered. 
 
 5. The statute does not abolish tlie difference 
 in construction of deeils of real and i)ersonal. 
 
 Descent — connexion of blood. Seabrook v. 
 Seabrook. Mc.M. Eq. 2(il, Act 1701. S 7 and § 0. 
 The Act of 1701 relates to vested estates, and 
 in that view the rule is as stated by Fearue, 
 559; Chancy v. Graydon, 2 Atk. (il(i. The 
 estate to James's heirs is to arise only on John 
 W. S's. death. 
 
 JoiiN.sTOX, Ch. With much hesitation as to 
 the i)ropriety "of taking cognizance of the ques- 
 tions submitted to me in this case. I have, at 
 the urgent request of both parties, consented to 
 hear them. My apprehension is, that those 
 questions are properly uefore the Court of Er- 
 rors as part of "the construction of this will as 
 
 *418 
 to the real estate," or *remain in the Court of 
 Appeals in E(iuity. to be determined upon the 
 return of the judgment of the Court of Errors. 
 
 The first question is tree from difticulty. I 
 understand the Court of Errors to have tlecided, 
 that the estates of James B. Perry and John 
 W. Sommers. and their issue.— preceding the 
 limitation over to James D. St)mmers, — are not 
 fees conditional. T'nless they are fees ct>ndition- 
 al, they must be either fee simple estates in 
 James B. I'erry and Jt)hn W. Sommers, succes- 
 sively, or estates for life to them, with re- 
 m;iinder to their issue in fee. In either case, 
 the limitation over is after a fee simple, and 
 is good, as an executory devise: for all the 
 authorities agree that an executory devise may 
 be limited after an estate of that character. 
 
 The second question is more dillicult. James 
 1). Sommers, to whom the estate was limited 
 over in fee. died before the expiration of the 
 prior estates ; and the <iuestion is. whether the 
 fee. which was limited over to him. is dis- 
 tributable among the heirs left by him and ex- 
 isting at his death, or among the heirs existing 
 when the prior estates failed or expired. 
 
 It is tolerai)ly plain how this question would 
 have been decided in E igland. 
 
 "The rules." says Cruise, (cl "laid down in the 
 preceding chai)ter respecting tbe descent of es- 
 tates in possession do not apply to the descent 
 of estates in remainder and reversion, expectant 
 on an estate of freehold: because, where there 
 is a preceding estate of freehold, the actual seisin 
 is in the possessor of that estate, not in the per- 
 son entitled to the estate in remaindi-r or rever- 
 sion. It f<illows. from this jirinciple. that where 
 a person entitled to an estate in remainder or 
 
 (c) 3 Cruise, Tit. 29, Descent. Ch. IV. Sec. 1. 
 
 16»
 
 *418 
 
 4 KICHARDSON'S EQUITY REPORTS 
 
 reversion, expectant on a freehold estate, dies 
 during the continuance of the particular estate, 
 the remainder or reversion does not descend to 
 his heir; because he never had a seisin to ren- 
 der him the stoclv or mot of an inheritance: 
 but it will descend to the person who is heir 
 to the first purchaser of such remainder or re- 
 version, at the time when it comfs into posses- 
 sion." 
 
 Upon the same footing stand executory devises, 
 which are not regarded as mere possibilities, 
 but as resembling contingent remainders, in re- 
 spect to the transmissibility of the interest. (d) 
 
 But our stature of 1791 (5 Stat. 102) provides, 
 that "where any person possessed of, interested 
 in, or entitled unto, a real estate in his or her 
 own right in fee simple, shall die, without dis- 
 posing thereof by will, the same shall be dis- 
 tributed in the following manner," &c. — among 
 persons left by the decedent, and described in 
 the eleven sections of the 1st clause. 
 
 Chancellor Harper, in the case of Adams v. 
 Chaplin (1 Hill, Eq. 269) remarks on this stat- 
 ute, that "it has so far altered the English 
 law that actual seisin is no longer necessary to 
 enable one who has a present title to an es- 
 tate, to become the stock, or root, of inheritance. 
 
 *419 
 It provides for *distribution 'where any person 
 possessed of, interested in or entitled to a real 
 estate, in his own right in fee simple' shall die 
 intestate. "This, I suppose," says he, "would 
 be held to apply to a reversion, or remainder, 
 after an estate for life, or an estate tail, (if such 
 were allowed in this country,) because such re- 
 mainder or reversion is an estate of fee simple." 
 He held, however, in the particular case before 
 him, which related to a mere right of reverter 
 after a fee conditional, that it was not affected 
 by the statute, but must go as at common 
 law ; because, according to the authorities, it 
 was no estate in the land, but a mere possibility. 
 
 Estates, such as this of James D. Sommers, 
 although contingent, are nevertheless coupled 
 with such an interest as to render them dis- 
 tributable under the Act of 1791. 
 
 "It seems now to be established," says the 
 note to Purefoy v. Rogers, (2 Saund. R. 388, k,) 
 "notwithstandmg some old opinions to the con- 
 trary that contingent and executory estates and 
 possibilities, accompanied with an interest are 
 descendible to the heir, or transmissible to the 
 representative of a person dying ; or may be 
 granted, assigned, or devised by him, before the 
 contingency upon which they depend, takes ef- 
 fect:" and reference is made to Willes's, Rep. 
 211, Goodtitle v. Wood; 2 Burrows, 1131, Sel- 
 win V. iSelwin; S. C. Black. Rep. 251; 2 Wil- 
 son, 29, Goodright v. Searle; 1 Black. Rep. 605, 
 Roe V. Griffiths; Moor v. Hawkins, before Lord 
 Northington, cited in 1 Hen. Black. 30, Roe v. 
 Jones; and 3 Term Rep. 88, where Roe v. 
 Jones was affirmed in K. B. on error ; Cas. 
 Temp. Talbot, 117, King v. Withers. 
 
 Cheves, Justice, in McDonald v. McMullen, 
 (2 Mill, 94,) speaking of a limitation over to a 
 specified person, who died before the contin- 
 gency on which he was entitled to the posses- 
 sion, says: "It was argued that it was not a 
 vested interest ; and that, therefore, it was not 
 transmissible. It is, perhaps, not a vested in- 
 terest in the technical sense of that word. It 
 is frequently called a possibility only. But it 
 is nevertheless, vested in such manner as to be 
 transmissible, and according to the later author- 
 ities transmissible by will. (Fearne on Ex. de- 
 vis. 4th Edit. 522, 523 ; Cas. Temp. Talb. 123, 
 King V. Withers; Toml. 205.) It is only nec- 
 essary that the person to take should be ascer- 
 tained and certain to make such an interest 
 transmissible, (Fearne, 4th Edit. 542, 546). The 
 point is very clear." 
 
 (rf) Goodright v. Searle. 2 Wils. 29; McDonald v. 
 McMullen, 2 Mill, 94. 
 
 170 
 
 If, under the English statute of wills such an 
 interest is the subject of devise, much more is 
 it so under our statute. The English statute 
 enables those only to devise, "who have manors, 
 lands, tenements, or hereditaments:" whereas 
 our Act enables those who have lands, tene- 
 ments, «S:c., "in possession, reversion, or re- 
 maintler."(c) 
 
 Xow, our statute of distributions, in sub- 
 stance, proposes to distrilmte estates in default 
 of their being "disposed of by will." If not 
 disposed of by will, they shall be distributed ac- 
 cording to that Act, which may be regarded as 
 
 *420 
 
 testamentum legis. It is conceded that * James 
 D. 8ommtrs might have devised his interests 
 now under cousuleration; which is very near 
 equal to admitting that, in default of a will on 
 his part, those interests descended, immediately 
 upon his death, to such distributees as he then 
 left. 
 
 I am of opinion they did thus descend. Not 
 that they became transmissible, and shifted 
 from heir to heir, until the estate fell in, as in 
 England ; but that the right passed upon his 
 death, and fixed eo instanti in his distributees, 
 only to await a future enjoyment. 
 
 The only obstacle to an immediate descent 
 from ancestor to heir in England in such cases 
 was the want of seisin in the ancestor. But 
 our statute of 1791, while it enlarges the class 
 who are to take, effectually removes that ob- 
 stacle by rendering seisin unnecessary to the in- 
 heritance. 
 
 There is a consideration, of great force, lead- 
 ing to this conclusion, which I have aot yet 
 mentioned: and it is that the statute, by its 
 second clause, declares that "the personal es- 
 tates of intestates shall be distributed in the 
 same manner as their real estates are disposed 
 of by this Act."(/) 
 
 Now, in this case, the personal estate has 
 been adjudged to the distributees living at the 
 deatli of James D. Sommers: and it would 
 establish a very uunecessarj- anomaly, if the real 
 estate should be distributed differently. 
 
 I do not intend to say, that all distinctions 
 between real and personal intestate estate, have 
 been abolished by the statute. Very far from 
 it. It is perfectly true, as has been argued, 
 that the real goes immediately to the distributees, 
 and the personal to the administrator. But the 
 distribution of both is the same. The law 
 makes them both liable for debts, and the per- 
 sonalty liable in the first instance; but that 
 impediment removed, the same persons succeed 
 to the enjoyment of the property. 
 
 It is true, also, that alienage is a disqualifica- 
 tion to the right to distribution in the case of 
 real estate, and not in that of personal; but that 
 is a distinction introduced upon grounds of pub- 
 lic policy, and does not affect the question be- 
 fore us. Alienage would operate as a disqualifi- 
 cation to any particular heir, whether the in- 
 heritance be adjudged to the heirs existing at 
 James D. Sommers's death, or at the falling in 
 of the estate. The question before us is, which 
 class of these heirs is to take, leaving the par- 
 ticular disqualifications of the several heirs en- 
 tirely out of the decision, and for a separate 
 consideration. 
 
 Another distinction between real and personal 
 property has not been abolished by the statute 
 of 1791: the difference of construction of deeds 
 — or other instruments oy which they are to be 
 conveyed or assigned. This is true, as has been 
 insisted. But what bearing has that upon the 
 question of inheritance? 
 
 My judgment is, that the inheritance fell up- 
 on the distributees left by James D. Sommers 
 at his death; and let the decree be drawn ac- 
 cordingly. 
 
 (e) P. L. 138. 
 
 (/} 5 Stat, 163.
 
 IN THE COURT OF ERRORS 
 
 CHARLESTON— JANUARY, 1852 
 
 Alt, tiik Judgrs and Ciianckllors Present. 
 
 4 Rich. Eq. *42l 
 
 *GEORGK RIIST. Adnrr. v. HTGII I'. 
 
 DAWKS et iil.(r») 
 
 (Cliarlostun. Jan. Toriu, lSol2.) 
 
 \Wilh ©=:5(j():j.] 
 
 Devise of "the use" of lands "to J. I*, for 
 life; and. at his decease, the said lands shall 
 he, and is her('l)y de(dar<'d to he. vested in tiie 
 male issue of the said .1. I'., and in (h'fault of 
 sueb, in the issue female surviving liim ; and 
 if a general failure should he at the decease of 
 the said .7. P.." then, over:— //rW. that J. P. 
 tlid not take a fee conditicuial in the lands. 
 
 IKd. Note.— Cited in McCorkU- v. Hhu-k, 7, 
 Rich. Kq. 410, 415): Powers v. Bulhvinkle. :{:5 
 S. C. ;>00. lis. E. 971 ; Selman v. Rohert.son, 
 4(5 S. C. L'f;i), li4 S. E. 1.S7: I)u Pont v. Du 
 P.OS. 52 S. C. 12(!1. L'i) S. E. <;(!.".: Owinus v. 
 Hunt. O:; S. C. 1!H). :\\ S. E. 1^:;7 ; Ilarkev v. 
 Neville, 70 S. C. V^, 4!) S. E. liLS. 
 
 For other eases, see Wills, Cent. Dig. § 1.".54 ; 
 Dee. Dig. <©=3G0:}.] 
 
 Upon the questions referred by the Equi- 
 ty Court of Appeals to this Court, (see 4 
 Strob. Ec]. o7. 57-S,) the cause was now- 
 heard. 
 
 Yeadon, for apitclhuits. on the first ques- 
 tion said, the intention of the testator, if it 
 he consistent with law, should always pre- 
 vail. That the testator, here, intended to sjjive 
 James Boone I'erry an estate for life only, is 
 clear; and if he is held to take a fee condi- 
 tional, it must be by im[ilication — an implica- 
 tion which defeats the manifest intention. In 
 Enj,'land an estate tail will be implied, but 
 that implication is always made in aid of 
 and to carry out the intention — never to 
 defeat it. In this State a fee conditional 
 should never be implied, for such implica- 
 tion can never be made in aid of the in- 
 tention. Its effect always is to defeat the 
 intention. He cited and commented on 
 Scanlan v. Porter, 1 Rail. 429; 3 Strob. 
 Eq. 223; Bedon v. P.edon. 2 Bail. 231; 
 
 ♦422 
 Forth *v. Chapman. 1 1\ Wms. GG6; Shef- 
 field V. Lord Orrery, 3 Atk. 288: Fomiereau 
 v. Fonnereau. .3 Atk. 318; 2 Ves. sen. 181; 
 Dodson V. Grew, 2 Wils. 324; Edwards v. 
 
 (n) [See dissenting opinion of Chancellor 
 Wardlaw, post, 49(5.] 
 
 Barksdale, 2 Hill. Ch. 2S4 : Smith v. Hill- 
 iard. 3 Strol). Eq. 211 ; I-'earnc. .37(i. On the 
 second (juestictn. he admitted that an execu- 
 tfiry devise could not i)e limited to take 
 effect after the natural elllu.x of a fee con- 
 ditional. For instance, if an estate be giv- 
 en to A. and the heirs of his body, and it 
 at any time the heirs of the itody of A. 
 should l)ecome e.xtinct, then to B. in fee, such 
 an executory devise to B. wonld lie void. But 
 he saw no rea.son why an executory devi.se 
 could not be limited to take effect in de- 
 struction or defeasance of a fee conditional- 
 Suppose an estate given to A. and the heir.s; 
 of his body, but if A. slicudd die without 
 leaving a son living at the time of his death,. 
 then to B. and his heirs. — would not the 
 devise to B. be good? If the gift to A. were 
 to him and his heirs, so as to make his es- 
 tate a fee simple, tlien no one would ques- 
 tion the validity (tf the limitation to R.: 
 and no sufficient reason could i»e found for 
 making a distinction between the two cases„ 
 
 Memminger. contra, cited Jesson v_ 
 Wright. 1 Bliiih, 1 : atul contended, first, 
 that the estate devised t<^ James Boone Per- 
 ry was a fee conditional. I'nder the stat- 
 ute of uses to give one the use for life is 
 to give him the land itself. By the terms of 
 the will James Boone Perry took an es- 
 tate for life. Then follows the gift to his 
 issue. The Intention clearly was to create 
 a limitation to the issue; l)Ut the rule in 
 Shelley's case comes in and declares that the 
 issue shall take as hell's. Feariie. 28, 193; 
 Broadhurst v. Morris. 2 B. & Ad. 1 ; King 
 V. Milling. 1 Vent. 22"); 2 Jarm. on Wills. 
 .337. .399; Robinson v. Robinson. 1 Bur. .38; 
 Robinson v. Hicks, 3 Bro. I*. C. ISO; Hull 
 v. Hull, 2 Strob. I-:<i. 190; Jackson v. Rob- 
 ins. 1(5 Johns. R. r).37. Seciuidly. that the 
 limitation over to John W. Sommers was 
 void, and cited Blesard v. Simpson, 42 Eng. 
 C. L. R. 4S.3: Mary Portington's case, 10 
 Coke, 42 ; Fearne, 514. 
 
 Petigru, in reply. The estate given to 
 •423 
 James Boone Perry *was for life only. 2 
 Bl. Com. 114: Rutledge v. Rutledge, Dud. 
 
 ^=»F)r other cases see sa;na lopic aui; KEV-NLMUEH iu all K.ny-Numbered Digests and luUexes 
 
 171
 
 *423 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 201. Unless issue was used by the testator 
 in the sense of heirs, the rule iu Shelley's 
 case does not apply ; and it is clear that 
 he did not use it in that sense. On the sec- 
 ond question he cited Fearne, 295; Porter 
 V. Bradley, 3 T. R. 146; Pitts v. Brown, 
 Cro. Jac. 590. 
 
 The opinion of the Court was delivered by 
 
 O'NEALL, J. Of the two questions, sent 
 up to this Court by the Court of Appeals in 
 Equity, only one will be considered, viz : 
 Did James Boone Perry take a fee condi- 
 tional? For a majority of the Court hav- 
 ing come to the conclusion, that he did not, 
 it is unnecessary to consider the other ques- 
 tion, whether a good executory devise can be 
 limited on a fee conditional? 
 
 As far back as 1831, in the case of Bedon 
 v. Bedon, (2 Ball. 246,) I stated my repug- 
 nance to the raising of an estate in fee 
 conditional, by implication. The same was 
 repeated in 1833, in Adams v. Chaplin, (1 
 Hill, Eq. 282): and, in Edwards v. Barks- 
 dale, (2 Hill, Eq. 198,) in 1835, with the 
 assent of my brother. Judge Johnson, (thus 
 constituting a majority of the Court of Ap- 
 peals,) I laid it down, that a fee condition- 
 al could not arise by implication, and if 
 that Court had not been broken up in 1836, 
 no question would have ever again arisen, 
 about a fee conditional, on any other words 
 than on a direct gift to A. and the heirs of 
 his body, general or special. 
 
 The dissolution of that Court led to the 
 re-agitation of many questions, which it 
 had, with great labour and much care, sift- 
 ed, examined, and, as was then supposed, 
 settled. 
 
 The question of raising an estate of fee 
 conditional, by implication from such words 
 as in England would create a fee tail, was, 
 as might be expected from Judge Harper's 
 opinion being at variance with those of John- 
 son and O'Neall, the other members of the 
 Court, soon again brought under discussion, 
 in the tribunal, of which he was a member 
 and an ornament, the Court of Appeals in 
 Equity. But it received no adjudication, 
 
 *424 
 which gave it *the force of law, in that 
 Court. It is true, in Wlii.tworth v. Stuckey, 
 (1 Rich. Eq. 404,) he reiterated the opinion 
 which he had expressed in Edwards v. 
 Barksdale, Adams v. Chaplin, and which, 
 as counsel in Bedon v. Bedon, he had main- 
 tained before he went on the Bench, that 
 a devise to A. for life, and if he should die 
 without lawful issue, living at the tme of 
 his death, then over, was a fee conditional 
 in A., and that the executory devise was 
 void. It will be seen, however, on reading 
 that case, that this was merely the state- 
 ment of his own views, and that the deci- 
 sion rested upon the fact, that the purchas- 
 er of the estate, at whose instance the hill, 
 172 
 
 quia timet, was filed, was in possession, and 
 had a good marketable title, and had. there- 
 fore, no ground of complaint, as was sub- 
 sequently decided in \'anlew v. Parr, (2 
 Rich. Eq. 321.) In McLure v. Young, (3 
 Rich. Eq. 5.59,) the same subject was agitat- 
 ed, and Chancellor Johnston having held on 
 the circuit, that a devise to C. D. for and 
 during her natural life, and at her death 
 to her "lineal descendants," and in the event 
 of her dying without lineal descendants, to 
 two of her brothers and one sister, was a 
 fee conditional in C. D., and that her hus- 
 band had an estate by the curtesy, (she hav- 
 ing had issue, who survived her,) which 
 exempted him from. an account for rent after 
 her death: the case, on a division in the 
 Court of Appeals in Equity, found its way 
 into the Court of Errors, and that Court 
 at May term, 1S51. held that C. D. did not 
 take a fee conditional, and that her son 
 ("the lineal descendant") took the estate, 
 after her death, as a purchaser; and, there- 
 fore, that her husband could have no estate 
 by the curtesy. The opinion, in that case, 
 was delivered by Chancellor Dunkin, and 
 certainly, both by its words and authority, 
 goes very far to deny the doctrine, that an 
 estate of fee conditional is ever to be im- 
 plied in this State. 
 
 This glance at the previous cases decided, 
 would, even without the case of Williams 
 V. Caston, (1 Strob. 130,) leave us unfettered 
 by decisions, as to the necessity of* constru- 
 ing words, which in England would he held 
 to be a fee tail, to be here a fee conditional. 
 That case is a strong authority, in favor of 
 
 *425 
 rejecting any *such artificial rule, and plac- 
 es the argument, in that behalf, ver.y much 
 in advance of anything to be claimed, on 
 the other side. 
 
 The whole reasoning (with due deference I 
 speak it) seems to me to he false, which con- 
 tends for an artificial rule to subvert the 
 intention of the testator. In general a man 
 has the right to dispose of his property as 
 he pleases. He, in this respect, constitutes 
 the law by which it is to be regulated. As 
 only one member, however, of the body poli- 
 tic, it is his duty to make his disposition 
 conform to the law. Hence he cannot, in a 
 devise, create a perpetuity. For this is 
 against the settled policy, and rules of the 
 connnon law. But, with this exception, I 
 know of no other control, which can right- 
 fully be said to attach to a disposition by 
 devise, in relation to the devisees, and the 
 period at which they may succeed to the en- 
 joyment of it. In England, the rule in Shel- 
 ley's case, as it is called, has been made the 
 means of recasting estates, so as more effec- 
 tually to carry out the intention of the tes- 
 tator. That rule means no more, than that 
 the words heirs and heirs of the body "are 
 never words of purchase, and where a devise 
 is to them, as they can only take by descent,
 
 BUIST V. DAWES 
 
 •42S 
 
 the whole estate must be in the ancestor." 
 Fearne on Rem. 28, note c. By an easy tran- 
 sition, this rule was made, in England, to 
 cover another class of cases, as when the de- 
 vise was to A. for his life, and after his death 
 to his issue, and then over. This was adjudg- 
 ed to be a descendible estate, and by the rule 
 iu Shelley's case, the whole estate was in the 
 first taker for life, and then in his issue as 
 tenants in tail, with remainder over. This 
 was all very well in England, both to support 
 tiieir aristocratic institutions, and also to 
 carry out the intention of the testator. Here, 
 however, where tlie statute de ck)nis never 
 was of force, if we adopt the same artiticial 
 rule of construction, we have to apply the rule 
 in Shelley's case to such a case, as that sup- 
 posed, and make the estate a fee conditional 
 to descend per formani doni, with the power 
 in the tenant in fee conditional to aliene and 
 incumber, and thus to defeat the descent, and 
 in the very creation of the estate, to prevent 
 the remainder over ; and most prol)ably even 
 
 *426 
 an executory *devise over, from having effect 
 on account of its remoteness, when attached 
 to such an estate. The case of Izard v. Izard, 
 (Bail. Eq. 228,) is a perfect illustration of the 
 power of the tenant over the estate in fee 
 conditional, both as to the power to aliene 
 and also to incumber. Mazyck v. Vander- 
 horst, (Bail. Eq. 4S,) is full to the point, that 
 a remainder cannot be limited on a fee con- 
 ditional, and, also, that an executory devise 
 over is, on account of its remoteness, void. 
 If a devise to A. for life, and to his issue 
 living at his death, and. failing sucli. then, 
 over, would he adjudged a fee conditional, 
 who would take the estate as heirs of the 
 body? The descent is per formam doni and 
 at common law. Our statute of distributions 
 would not, possibly, help such a case. Would 
 it not be a startling result, if the eldest son, 
 as the heir, should take the whole V These 
 consequences, whether certain or only possi- 
 ble, certainly are enough to make us refuse to 
 adopt any artificial rule which so signally de- 
 feats and over-rides the intention. But it is 
 .said, we are bound to adopt it, because it 
 is a part of the common law. I deny that it 
 is so. For the purposes of cases like this, it 
 is a rule adopted in England to break down 
 the otherwise certain force of tne statute de 
 donis to perpetuate estates. Here, where the 
 statute de donis never existed, how can it be 
 pretended that it is a part of our connnon 
 law? We only adopted it, (the common law,) 
 so far as it comported with our situation, 
 and institutions. In this State, since the Act 
 of 1824. we have no necessity to appeal to 
 the rule in Shelley's case. For unless the 
 devise cuts the estate down to less than a fee, 
 it is to be so regarded. There is. therefore, 
 no artificial rule, which compels us to give a 
 construction, against the plain meaning, to 
 the words of the testator. 
 What is a fee conditional? It is such au 
 
 testate, as is to descend indefinitely, in the 
 I line of the first taker. To decide what is 
 I the estate of James Boone Perry we must 
 i see, whetlier the devi.se to him can have this 
 ! effect. The words are a i>lain devise to him 
 for life, and at his death the estate is to l>e 
 I vested in his issue male, and in default of 
 I such to his issue female surviving him, and 
 I if a general failure should be, at the decease 
 I ♦427 
 
 I of the said James, ♦then to his cousin John 
 Witiungham Sonnners. with like lindtations, 
 ] and if there sliould 1k> a total failure of issue, 
 I innn»>diate on the decea.se of the said John 
 Withingham. then over to James Sonnners, 
 his heirs and assigns forever. 
 I It seems to me. that if this were adjudged 
 : to be a fee conditional, it would be sxUiversive 
 I of every rule regulating executory devises. 
 j But before we examine it ui tills liehalf, it 
 woidd be well to test it by rules especially 
 applicable to fees conditional. If it be a 
 fee conditional, it is alternative, fir.st in the 
 j male line, and, failing that at his death, in 
 . tiie female. How could such an estate have 
 indefinite succession? If a son first took the 
 estate and had a daughter, there would be an 
 end of it iu that way. For if there were also 
 a daughter and she had a son, this would not 
 help the matter. For, says Blackstone, (2 
 Com. 114,) "in ca.se of an entail male, the 
 heirs female shall never inherit nor any 
 derived froyi them, and e converso, the heirs 
 male, in the case of a gift in tail female." 
 Such consequences would be enough to pre- 
 vent any implication. 
 
 Mr. Fearne (on Rem. 418) tells us that an 
 executory devise cainiot be prevented, or 
 destroyed, by any alteration whatsoever in 
 the estate out of which, or after which, it is 
 limited. If James Boone Terry's estate be a 
 fee conditional, he could have aliened or en- 
 cumbered it on the birth of issue, so as to 
 defeat utterly the executory devise over, on 
 his dying without leaving issue him surviv- 
 ing. Such a consequence is enough, one 
 would think, to startle the boldest in apply- 
 ing an artificial rule. Indeed, it is plain, 
 that such a result shows that the whole is 
 an estate to James Boone Perry for life, with 
 a good remainder to his issue, male or fe- 
 male, living at his deatii, and which words 
 are synonymous here, with children or grand- 
 children, and wiio conse(iuently take as pur- 
 chasers, and with a good executory devise 
 over to persons in esse. The rule very plain- 
 ly is, where the estate is to one for life and 
 to go over, in the event of dying without is- 
 sue, which must take effect in the compass 
 of twenty-one years after a life or lives 
 In being, that the executory devise is good. 
 
 ♦428 
 (Fearne on Rem. ♦470.) In this case there is 
 no doubt about the period — the whole is lim- 
 ited to the death of the first taker, then the 
 issue were to take, then if there were no is- 
 sue, the executory devise over took effect. The 
 
 173
 
 *428 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 term "issue" when found in a devise lias no 
 such technical meaning, as compels us, ex vi 
 termini, to hold it a word of limitation, and 
 not a word of purchase. For ^Ir. Fearne (on 
 Rem. 106) tells us that "issue, in legal con- 
 struction, is a word of purchase." In general 
 whenever it is used, not as the turning point 
 of a devise, and there is a direct gift, with 
 such words as will tie up the meaning, so as 
 to designate a class of children or grand- 
 children to take at the death of the first 
 taker, it is a good word of purchase, and the 
 devise is good. In this will the devise is to 
 James Bopne Perry expressly f<»r life. There 
 is no necessity to enlarge this estate. Indeed, 
 I do not perceive how we can, since the Act of 
 1824. The words show that he was not to 
 have a fee of any kind. It is said, by one of 
 the Court, that a gift to A. and his issue, 
 is a fee conditional without implication. I 
 should be pleased to see that proved. Issue 
 is not a word of descent; it is only by imply- 
 ing that the testator used it in the sense of 
 "heirs of the body," that in England it is 
 ruled to be enough to make an estate tail. 
 The devise to the issue, male or female, is, 
 in the clause of the will under consideration, 
 peculiarly expressed; the estate at the death 
 of James Boone Perry is declared to be 
 "vested" in such issue. This is equivalent to 
 a devise to the issue male and his heirs. 
 For to be vested in him, it is necessary it 
 should have just the effect of a devise to him 
 and his heirs. In such a case, it is clear the 
 words "issue male" are words of purchase. 
 So, too, the words "surviving him" have nec- 
 essarily the effect to make the terms "issue, 
 male or female," words of purchase. For the 
 issue, in whom the estate is to vest, must 
 be alone those, who are found alive, at the 
 death of the first taker, and hence are equiv- 
 alent to children or grand-children, which 
 are always words of purchase. 
 
 But the limitation over is to a person in 
 esse, and is to take effect at the death of the 
 
 *429 
 first taker. Beyond all doubt this is a *good 
 executory devise. (Fearne on Rem. 468, et 
 seq.) With all these matters clearly and 
 fully ascertained in the devise, and thus 
 fully sustaining every part of it, as estates 
 created by devise, not repugnant to any 
 known rule of law, how can we be called up- 
 on to apply an artificial rule, which is to 
 overturn everything intended by the testa- 
 tor? I confess I should be slow even to yield 
 to a known artificial rule having such an 
 effect; but when I am called on to make it, 
 I should feel I was doing more than the leg- 
 islator would do, were I to yield to such a 
 call. The only case to be found in the Eng- 
 lish books of an implied fee conditional is 
 that of Blesard v. Simpson, 42 Eng. C. L. R. 
 483, and that was in copyhold. There, too, 
 the implication defeated the executory devise 
 over, and the testator's intention. That case 
 has no binding effect on us. It is of an estate, 
 174 
 
 copyh<ild, of which we have nothing like in 
 this State. It is a recent decision, and Is, 
 therefore, in no shape to affect us. In this 
 State, as I have shown, we have nothing to 
 bind us in the shape of authority to imply a 
 fee conditional. 
 
 On the contrary the weight of our au- 
 thority is against it. So, too, reason for- 
 bids its adoption. Most generally it would 
 defeat the intention of testators, which it 
 is our duty to carry out. So that I should 
 never be disposed to make an estate in fee 
 conditional by implication. Here, however, 
 it is only necessary to say, on the words of 
 the will, the devisee, James Boone Perry, 
 took no such estate. 
 
 DUNKIX, Ch. and FROST. WITHERS 
 and WHITNER, JJ. concurred. 
 
 WARDLAW, J. I join five members of 
 the Court in saying, that under the devise 
 in question, James Boone Perry did not take a 
 fee conditional: and so there is a bare ma- 
 jority of the Court in favor of that result: 
 but I do not maintain the leading positions 
 which are assumed in the opinion that has 
 been read by the President of the Court: in- 
 deed, to some of them I am earnestly op- 
 posed. 
 
 I have not time to write out my views; 
 *430 
 most of them are such *as are entertained 
 by the larger portion of those members of 
 the Court who dissent from the result, and 
 on some points I may signify my acquies- 
 cence in the opinion which one of those 
 members is expected to prepare. 
 
 I think that a devise to A. for life and 
 at his death to his issue, creates a fee condi- 
 tional, not by implication, but by express 
 words. 
 
 The rule in Shelley's case I regard as a 
 rule of property, wise in itself, long settled, 
 a]Kl fully recognized by our own cases. 
 
 I can know the intention of a testator 
 only from the words of his testament. Con- 
 struction is proper to ascertain the meaning 
 of those words, never to discover an inten- 
 tion outside of them. The testator's own 
 definition, when he has given one, is decisive 
 of the sense in which he used a word. Such 
 definition may some times be found in the 
 context, and some times may be supplied or 
 aided by evidence concerning the condition 
 of the testator, his family, his property, or 
 other matters, which show the circumstances 
 under which a word was used. But if there 
 be nothing to show that words were used 
 in a peculiar or extraordinary sense, I un- 
 derstand them in their ordinary sense, and 
 give to technical words technical meaning, 
 to technical phrases a technical effect. 
 
 A fair interpretation of tlie whole will, 
 I think, shows that the devise was not, at 
 the death of James Boone Perry, to his is- 
 sue male, and in default of his issue male
 
 BL'TST V. DAWES 
 
 to his issiio female, in indefinite succession ; | 
 l)nt was. in fact, to that iiartinilar class 
 of his lineal descendants that niitiht l>e liv- 
 ing at his death, the males to he preferred 
 to the females of the class. The special In- 
 ♦lividnals of issue thus indicated \v<»nld. un- 
 der our Act of 1S24, have taken a fee simple. 
 I dissent from the intimation made by tne 
 President, that an executor.v devise, to take 
 effect upon an event clearl.v witiiin the pre- 
 scrilied time, may not he limited upon a fee 
 conditional. 
 
 DARGAN. Ch., dissentiii;:. The testator, 
 IMward Ton^e. devised and hequeathed his 
 real and personal estate to his wife durin;^ 
 widowhood, with remainder, in case of her 
 
 *431 
 death or mar*na.i,'e, to his mother. Susannah 
 Ton;;e, during her life. He then, hy way of 
 remainder, gave to .Tames Boone Perry the 
 use thereof for life, "and at his decease the 
 S.I id land, slaves and premises shall he and 
 is lierehy vested in the male issue of the said 
 James, and in default thereof, in the issue 
 female surviving him: and if a general fail- 
 ure shall he at the death of the said James, 
 1 give said land and slaves to my cousin, 
 John Withingham Sommers, on the same 
 terms, conditions, limitations, and reserva- 
 tions as this is made liable to in respect to 
 James's interest therein in pursuance of 
 this my will, and should there he a total 
 failure of issue (innnediate) on the death 
 of the said John Withingham Sommers, I 
 give the said lands, slaves, and the issue 
 of the female slaves, to his. the said John 
 Withingham Sommers's brother, Jas. Som- 
 mers. his heirs and assigns forever." 
 
 The Court of Appeals in Equity referred 
 two (|uestions arising on the construction 
 of this will to the Court of Errors: 
 
 1. What estate did James Boone Perry 
 take in the lands devised to him by the will? 
 
 1.*, And if it should be ruled that he took 
 a fee conditional, whether an executory de- 
 vise could be limited upon such fee con- 
 4litionalV 
 
 A majority of this Court have hell, that 
 James Boone Perry took but a life estate 
 in the lands: remainder to his own issue as 
 purchasers; and. in default of such issue, 
 remainder to John Withingham Sonuners, &c. 
 Tills decision rendered the other question re- 
 ferred unimportant in this particular case. 
 It has. therefore, not Ikhmi decided. The 
 judgment of the majority differs so widely 
 from what I humlily conceive to be the true 
 construction of the will, that I feel con- 
 strained to express my dissent, and some of 
 the grounds upon which my dissent is placinl. 
 I think I shall be able to show, that the 
 decision, which has beccnne at least the law 
 of this case, is utterly at variance with all 
 the precedents and authorities upon the sub- 
 ject. 
 
 I do not think it possible for any one to 
 
 rise from the study of the English cases, 
 and English authorities of the very highest 
 
 ♦432 
 re*pute. without having adopted the con- 
 clusion, that in Wt'st minster Hall. James 
 Boone Perry would be considered as having 
 taken a fee tail; a fee tail male in the 
 lirst instance: and in default of male issue, a 
 fee tail female. In onler to present this 
 (piestion in a more striking and naked form, 
 snpi»ose James P.oone Perry to have died, 
 leaving issui' (either male or female) surviv- 
 ing him. what estate would such issue have 
 taken in England? Who can doul>t that they 
 would there have taken the estate by de- 
 scent, and not as punhasers? If the issue 
 of James P.oone Perry (had he left such is- 
 sue* would not have taken by descent, what 
 becomes of the rule in Shelley's case? The 
 rule Is, "that when the ancestor by any gift 
 or conveyance taketli an estate of freehold, 
 and in the same gift or conveyance an estate 
 is limited, either mediately or immediately 
 to his heirs in fee, or in tail ; the heirs 
 are words of limitation of the estate, and 
 not words of purchase." 1 Rep. 104. The 
 rule is applied, where the words heirs or 
 heirs of the body are used in a general 
 sense, without such qualificiition as would 
 restrict their meaning to a particular class 
 or description of persons, other thaa those 
 who would take under the canons of de- 
 scent: or in the case of a fee conditional, 
 other than those who would take as heirs 
 of the body generally, or heirs male or fe- 
 male of the body. I have, in the circuit 
 decree, given sutlicient reasons why this rule, 
 which is a rule of prt>perty. and not of con- 
 struction, and which has existed as a prin- 
 ciple of the common law for more than live 
 hundred years, should not be violated or dis- 
 regarded. 
 
 It is said that this is not a case falling with- 
 in the operation of the rule; that a fee condi- 
 tional cannot be implied ; that the will gives 
 the estate at the death of James Boone 
 Perry, not to the heirs of his body, but to 
 his issue, and that to construe the will, so 
 as to make the estate a fee conditional, 
 would be to create that estate by implica- 
 tion. I deny the correctness of every part 
 of the foregoing propositions. I apprehend 
 that the same rules of interpretation would 
 apply to fees conditional, as exist in Eng- 
 land in reference to estate's tail. "A devise 
 
 *433 
 to A. and his heirs male *forever, (Baker 
 V. Wall. 1 Ixird Raym. 1S5.) or to A. for 
 life, and after his death to his right heirs 
 male forever. (Eord Ossuslton's case, 3 Salk. 
 334.) has been held to confer an estate tail 
 male: the addition of the word "male" as 
 a qualitication of "heirs"' showing that a 
 class of heirs less extensive than heirs gen- 
 eral was intended. And the same construc- 
 tion obtains, where a devise to a person and 
 his heirs (Slater v. Slater, 5 T. R. 335,) or 
 
 175
 
 *433 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 to a person simply without any words of 
 limitation, (Blaxton v. Sloue, 3 Mad. 123.) is 
 followed by a devise over in ease of his 
 death without an heir male. It has even 
 been decided that a devise to one et hteredi- 
 bus suis legitime procreatis. creates an es- 
 tate tail, though the addition merely de- 
 scribes a circumstance which is included in 
 the definition of heir simply, an heir being 
 ex justis nuptiis procreatus. Such was the 
 doctrine of the early authorities, and it was 
 recognized and followed in the more recent 
 case of Nanfan v. Legh, 7 Taunt. S5,) where 
 a devise to H. when he should attain twenty- 
 one, "and to his heirs lawfully begotten for- 
 ever, was held to make the devisee tenant 
 in tail." 2 Jarm. on Wills, 232. In all these 
 cases, and many others that might be cited, 
 an estate tail was created by implication. 
 
 But in this case, no resort to implication 
 is necessary. The will after the life estate to 
 James Boone Perry, gives the property di- 
 rectly to his issue, and the word issue is a 
 term equivalent to and convertible with 
 "heirs of the body." "A devise to A. et 
 semini suo, (Co. Lit. 96,) or to A. and his is- 
 sue (Nightingale v. Burrell, 15 Pick. 104,) 
 clearly creates an estate tail." 2 Jarm. on 
 Wills, 236. That the word issue is equivalent 
 to heirs of the body in questions like this, see 
 Broadhurst v. Morris, 2 B. and Ad. 1 ; Rob- 
 inson V. Robinson, 1 Burr. 38 ; Dodson v. 
 Grew, 2 Wils. 322 ; Edwards v. Barksdale. 2 
 Hill. Eq. 196 ; Whit worth v. Stuekey, 1 Rich. 
 Eq. 404 ; Hull v. Hull, 2 Strob. Eq. 174. 
 
 The fee conditional was an estate, which ex- 
 isted from the earliest periods of the English 
 Common Law. It was originally what it was 
 afterwards made by the statute de donis con- 
 ditionalibus, incapable of alienation from 
 
 *434 
 
 the course of descent marked *out by the 
 terms of the gift or conveyance. But it hav- 
 ing been ruled by the Judges of England, 
 that when the tenant in fee conditional had 
 issue born alive capable of inheriting the es- 
 tate, he had so far performed the condition 
 upon which he held, as to enable him to alien- 
 ate, or subject it to incumbrances, the great 
 landed aristocracy found it necessary for the 
 preseiTation of their hereditary rank, wealth 
 and influence, to restore the law, (by the 
 interposition of Parliament) to Its ancient 
 condition. The statute de donis conditionali- 
 bus was the consequence ; a law, which, 
 however it may be looked upon by republic- 
 ans, is doubtless weir adapted to the state of 
 things existing in that country, and emi- 
 nently conducive to the preservation of their 
 social and political institutions. 
 
 It was upon the estate in fee conditional 
 that the statute de donis operated. It modi- 
 fied the estate as it then existed and was 
 construed. It preserved the estate for the 
 benefit of the issue of the grantee, and the 
 reversion for the benefit of the donor, de- 
 
 176 
 
 priving the grantee of the power of aliena- 
 tion, and prescribed that the heirs should 
 take the estate per formam doni. Thus, 
 whatever estate was a fee conditional at 
 Common Law, became under the statute de- 
 donls a fee tail ; and, e converso, what would 
 be construed an estate tail in England, must 
 be a fee conditional wherever the Connuon 
 Law prevails without the statute de donis. 
 
 This statute has never been of force in 
 South Carolina. But the Act of 1712. whicli 
 adopted the Common Law (with certain ex- 
 ceptions) as a code or body of laws for this 
 State, (then a province,) has been considered 
 as making of force such parts of the Common 
 Law as relate to the estate in fee conditional. 
 The estate has been judicially recognized as 
 existing in South Carolina, by repeated de- 
 cisions. The principles of the Connnon Law, 
 in relation to this estate, have been enforced 
 as rules of property. Titles have been settled, 
 and the devolution of landed estates has 
 taken place to a great extent, in accordance 
 with these principles. And whenever ques- 
 tions of this nature have arisen, the Courts 
 
 *435 
 
 *have always resorted to the ancient Com- 
 mon Law for the principles which were to 
 govern their decisions. It is probable that 
 the estate was recognized as existing in the 
 earliest period of our history. For we find 
 decisions to this effect in the first Law and 
 Ecpiity Rejiorts that were ever pul)lished in 
 South Carolina, in which the subject was 
 treated as familiar, and the rules applicable 
 well settled. In Murrell v. Mathews, decided 
 in 1S02, 2 Bays's Rep. 397, the testator, Rob- 
 ert Murrell, devised the land in dispute to 
 the plaintiff, John Jonah Miu-rell, (who was 
 his son.) "and the lawful heirs of his body ;" 
 but in case he, or the lawful heirs of his 
 body should die, without lawful heirs, he 
 devised the estate to his grand-son, Robert 
 Huggins, and the lawful heirs of his body 
 forever. John Jonah Murrell had lawful is- 
 sue born alive ; and during the life time of 
 such issue, he alienated the land, in fee 
 simple, to the defendant, Mathews. In this 
 case, all the Judges were of the opinion that 
 John Jonah Murrell took a fee conditional 
 in the land, and that the birth of issue, and 
 the alienation barred the remainder-man, 
 and all claiming under him. The title of the 
 defendant was held to be good; and judg- 
 ment rendered against him on the bond, 
 which was given for the purchase money. 
 
 In Cruger v. Hey ward, 2 Des. Rep. 422, 
 Col. Daniel Heyward devised his island, 
 Callewashie, to his son, Benjamin, but in 
 case he died "without lawful issue, to his, 
 (the testator's) grand-son, Daniel Heyward, 
 and his heirs forever." It was argued at the 
 bar, and held by the Court, that Benjamin 
 took a fee conditional. It was a fee con- 
 ditional by implication, and one in which
 
 BULST V. DAWES 
 
 the word Issue was considered as equivalent 
 to heirs of the body. 
 
 .nV'l "r,^ '"''^*""*^'' '■'^"^' '^ ^"=^t of Jones 
 ads. Postell and I'otter. Harp. 92 It arose 
 under the will of Thomas Snipes, who de- 
 vised the land in <niestion to his son. William 
 tla.v Snipes, -to l,i,„ a„,| ^,,^ j,^.,,.^ ^^^ ^.^ 
 body forev,>r." The Court says, in delivering 
 its judgment, "there can be but one opinion 
 as to the character of the estate which 
 JiUiani Clay Snipes took vnuh.r the will of 
 Thomas Snipes. The terms used, "to him 
 
 *436 
 and the heirs ♦of his body forever' are 
 precisely those which Lord Coke, and. on his 
 authority. Sir William Rlack.stone. define as 
 creating at Common Law a qualified oi- con 
 ditional fee." It was further ruie<l. in that 
 case, that the tenant in fee conditional, 
 though he had i.ssue born, could not bv a de- 
 vise prevent the estate from descending per 
 formam doni ; a rule which has been followed 
 ever since. 
 
 From this period to the present time, our 
 reports are full of cases of this complexion. 
 The following are some of the published 
 cases in which the estate in fee conditional 
 has been recognized: in some, incidentallv 
 and. in others. ,]irectly, by judicial decision' 
 affecting the rights of the parties, (^arr v 
 Porter^ 1 McC. Eq. 60; Henry v. Felder 2 
 McC. Eq. 330: Mazyck v. Vanderhorst. Bail 
 Eq. 48; Izard v. Izard. Kail. Eq. 2-^S • 
 Bedon V Bedon, 2 Bail. 231 ; Adams v. ChTnp- 
 
 iS -^^^,; ./'^^l^-'i'-'l-- V. Barksdale, 2 Hill. Eq. 
 184 ; \\ hitworth v. Stuckey, 1 liid,. Eq 404 • 
 Hull y. Hnll. 2 Strob. E,j. 190 .• Hay v.^IIav! 
 3 Rich. Eq. 384. Some of these cases will 
 be referred to hereafter in a more particulai 
 manner. Besides the published cases there 
 are others that have not been rei.orted. And 
 there IS a great multitude of circuit decisions 
 in which the rights of parties have been af- 
 fected, that have never been carried before 
 the appellate tribunals, and consequentlv 
 have not found their way into the book.s 
 .So that the estate in fee conditional has 
 struck root, deeply and broadlv, in our 
 system of law, as an institution of property 
 10 do It violence now, by undermining, or by 
 direct assault, to rob it of its just propor- 
 tions, to deny it this or that attribute, or to 
 withhold from it those ancient rules of con- 
 struction by which the estate was ascertain- 
 ed, would be unwi.se and inconsistent It 
 would be setting every thing afloat (as to tills 
 subject) upon a wide sea of confusion and 
 uncertainty. We do not affect to be wiser 
 than our predecessors, and Courts above all 
 other places should be and are distinguished 
 by a firm adherence to establLshed principles 
 And It is certainly better in every point of 
 
 *437 
 view, unless change *be imperativelv called 
 for by a change of circumstances, 'to sub- 
 4 Rich. Eq.— 12 
 
 »438 
 
 nut to principles that have been sanctioned 
 by long usage, than for the Court to under- 
 take the dangerous experiment of ciianging 
 the old and establishing a new rule. And 
 even where change is inq)eratively lalied for 
 by a change of circumstances, it is better to 
 invoke the interpo.sition of the law-making 
 power. 
 
 Our Courts have repeatedly said, that what 
 constitutes a fee tail in England is a fee 
 conditional in South Carolina. Thev have 
 given this as a test, or .standard, bv' which 
 to ascertain when or where the fee condi- 
 tional exists. And a very proper test it is ; 
 for, as has already been remarked, the stat- 
 ute de donis operated only upon fee condi- 
 tional estates: converting tiiem into fees 
 tail. Without reiiuiring any thing a.l.litional 
 (•r stronger in the way of la nirua :.'.'. it fur- 
 nished a different rule of interpretation of 
 the same words. It is obvious ui.oii the 
 slightest reflection, that the structure of the 
 two estates is preci.sely the same ; and they 
 only differ in regard to the right of aliena- 
 tion. I have been led into this course of re- 
 mark from the fact, that the decision of the 
 nia.]ority of the Court in this case could (uilv 
 have been made on a denial of this rule of 
 interpretation as to what constitutes a fee 
 conditional. 
 
 I will now advert again, for a brief space 
 to the rule in Shelley's case. In addition to 
 Its feudal origin, as has been shown in the 
 circuit decrw, there is a i)rofound philosophv 
 in the rule, which well adapts it to the stat'e 
 of modern society, and makes it an imi)or- 
 tant i)rinciple in every system of jurispru- 
 dence, where it is essential to preserve a 
 distinction between estates by descent and 
 estates by purchase. Its i.olicv is, "that no 
 r)erson should be permitted to rai.se in an- 
 other an estate, which was essentiallv an 
 estate of inheritance, and at the .same "time 
 to make the heirs of that person purchas- 
 ers;" 4 Kent Com. 208. The reason which 
 recommends it to the modern legislator and 
 .lurist, is the necessity of adhering to the 
 manifest distinctions between de.scent and 
 purchase, and to prevent title bv descent 
 from being stripped of its incidents, and dis- 
 guised with the properties of a purchase. 
 
 *438 
 *Harg. Law Tracts, 489. Or. as Lord Thur- 
 low tersely and clearly expresses the same 
 Idea in Jones v. Morgan. 1 Bro. 200. whoever 
 "takes m the character of heir must take 
 in the quality of heir." 
 
 It was this i)olicy. doubtless, which recom- 
 mended it to the Courts of South Carolina 
 It was recognized in this State as early as 
 1795, in Dott v. Cunnington, 1 Bav, 453 fl 
 Am. Dec. 024]. and Carr v. I'orter' 1 McC 
 Kq. GO, was decided upon the authority of 
 the rule. Since that ca.se, it has uniformlv 
 been considereil as of binding obligation in 
 a case proper for its application ; and many 
 
 177
 
 *438 
 
 4 mCIIARDSONS EQUITY REPORTS 
 
 cases might be cited to this effect. After 
 all this, I am not a little astonished to hear 
 learned jurists sneering at the rule as arti- 
 ficial and arbitrary, and one that it was de- 
 sirable to get rid of by the .iudicial author- 
 ity. I will assume, therefore, in what I 
 shall hereafter say, that the rule is of bind- 
 ing force in South Carolina. 
 
 Let, then, the construction of Edward 
 Tonge's will be squared by the requirements 
 of the rule. He gave to James Boone Perry 
 an estate for life, and at his decease he gave 
 the estate to his issue. Is not this the very 
 case to which the rule applies? 
 
 In Robinson v. Robinson, 1 Burr. 3S, the 
 testator gave the estate to Launcelot Hicks, 
 during his life, "and no longer, and after his 
 death to such son as he may leave lawfully 
 begotten," aud for default of such issue, 
 over. It was construed to be an estate tail, 
 and not a gift to the issue as purchasers. 
 And Lord Mansfield said that "by law the 
 testator could by no words make the father 
 tenant for life, and the heirs male of his 
 body purchasers." 
 
 King V. Burchell, Amb. 379, Fearne 163, is 
 a leading case to the effect, that a devise 
 for life, with remainder to issue male, and 
 for want of svich issue to issue female, and 
 on failure of such issue then over, created 
 an estate tail by virtue of the rule; and the 
 words "to the hei<*s and assigns of such is- 
 sue, male or female," did not prevent the op- 
 eration of the rule. This case bears a strik- 
 ing resemblance to the one arising under Ed- 
 ward Tonge's will. 
 
 *439 
 
 *In Dodson v. Grew, 2 Wils. 322, a devise 
 (o one for his natural life, and after his de- 
 cease to the use of the male issue of his 
 body, and the heirs male of the body of such 
 issue male, and for want of such issue male, 
 then over, was held to create a fee tail. 
 
 Cases of this kind might be multiplied to 
 an indefinite extent. There are many cases 
 in which a gift or devise to a person for 
 life, and after his death to the heii's of his 
 body, or the issue of his body, have been 
 construed as giving the first taker only a 
 life estate, with a remainder to the issue 
 as purchasers. But this result happens by 
 force of the context, in which words are used, 
 which modify and restrict the meaning of the 
 words heirs of the body or issue, so as to 
 make them designate a particular class of 
 persons. In these cases, the heirs of the 
 body as such do not take as purchasers. 
 They take, because the words are explained 
 to be used in a limited sense, descriptive of 
 the individuals amongst the heirs general, 
 who are to take. 
 
 It is clear that the rule is not violated in 
 cases like these, because it does not apply. 
 
 In Edward Tonge's will, thei-e is nothing 
 in the context to control the general mean- 
 ing of the word "issue." There are no words 
 
 178 
 
 of modification showing that the issue are to 
 take in a way inconsistent with the usual 
 course of devolution in the case of an estate 
 tail, or fee conditional. He intended the is- 
 sue of James Boone Perry to take in indefi- 
 nite succession. He did not intend that the 
 estate should go over to John Withingham 
 Soramers, from the line of James Boone Per- 
 ry, as long as there was any of his issue ex- 
 tant. If this be true, and who can doubt it, 
 then it was a fee conditional. 
 
 It was urged with much fervor, that James 
 Boone Perry was to take a life estate, and 
 his issue as purchasers, because the limita- 
 tion over on the failure of such issue to John 
 Withingham Sonuners, &c., restricted the 
 words of the direct grant to the issue, so as 
 to make them mean a particular class of is- 
 sue: that is to say, i.ssue living at James 
 Boone Perry's death only. This is demand- 
 ing as a postulate, that which remains to be 
 
 *440 
 proved. It is *of course not denied, in rela- 
 tion to personal property, that when there is 
 a direct grant to the issue, or heirs of the 
 body, generally in the first place, which 
 standing by itself, would make the limitation 
 too indefinite and remote for the issue to take 
 as purchasers, but which is followed by an 
 ulterior valid limitation in favor of a third 
 party, this subsequent limitation has the ef- 
 fect of restricting the generality of the terms 
 of the gift to the issue, so as to make them 
 mean a grant to issue living at the death of 
 the first taker: in which ca.se the issue would 
 take as purchasers. That rule of construc- 
 tion was applied to the will of Edward Tonge 
 as to the personal estate, by the circuit de- 
 cree in this very case, and affirmed by the 
 Court of Appeals, though both the real and 
 personal estate was disposed of in the same 
 words. A bequest to one and his issue, or 
 the heirs of his body, with a limitation over 
 on his dying without leaving issue at the 
 time of his death, will give the issue an es- 
 tate as purchasers after the termination of 
 the estate for life of the first taker. Read 
 V. Snell, 2 Atk. 642; Lampley v. Blower, 3 
 Atk. 396; Henry v. Means, 2 Hill, 32S; Hen- 
 ry «& Talbird v. Archer, Bail. Eq. 535. 
 
 But where is the authority that this cir- 
 cumstance alone is suflicient to warrant the 
 same construction in reference to real es- 
 tate? The words heirs of the body or issue 
 are capable of restrictive modifications by 
 the context, both as to the real and personal 
 estate. This is clear. That their meaning, 
 however, is more controllable and suscepti- 
 ble of explanation in another than the techni- 
 cal sense, when applied to the former, than 
 the latter, is also indisputable. And what I 
 insist on is this: that when real estate is 
 given to one, and the issue or heirs of his 
 body, the simple fact, that there is a valid 
 limitation over on the event of the first tak- 
 er's dying without leaving issue, or heirs of
 
 BUIST V. DAWES 
 
 *443 
 
 his body, is not suflicient to make the issue 
 or heirs of the body take an estate in re- 
 mainder as iturehasers, as it does in the case 
 of personal estate. Fortli v. rijapman, 1 P. 
 W. ()(!.•}: Mazyck v. Vanderliorst. Bail. Eq. 
 4s: Hull V. Hull, 2 Strob. E(i. 190. This is 
 not sullicieut to qualify the technical and 
 
 ♦441 
 general sense of those *\vords. And yet it 
 seems to me that the decision tif a majority 
 of this Court has turned in a jireat measure 
 upon such a doctrine. Some of the cases tro 
 a fii't'iit tlt'al further, and decide that where 
 real estate is {livi'ii to one and the heirs of 
 his body, or his issue, with a limitation over 
 in the event of the first taker's dying with- 
 out issue of his body living at the time of his 
 death, .still this does not ciualify or restrict 
 the general sense of the words of a direct 
 gift to the issue, so as to make them take as 
 purchasers. 
 
 In Kiihards v. Lady Bergavenny. 2 Vern. 
 .■>24, the devi.se was to Lady Bergavenny for 
 life, and to such heir of her body as should 
 he living at the time of her death, and, in 
 default of such issue, then over. The issue 
 did not take as purchasers. It was held to 
 be an estate tall. 
 
 In Wright v. Pearson, Ami). 358, the devise 
 was to K. and his assigns for life, remainder 
 to trustees to support contingent remainders, 
 remainder to the use of tlie male heirs of the 
 body of I{. lawfully to he begotten, and their 
 heirs: provided, that in case K. should die 
 without leaving any Issue of his body living 
 at his death, then over: it was held by Lord 
 Keeper Henley, to create an estate tail in Iv. 
 Fearne on Kem. 12(5. 
 
 "Where a devise to a person and his issue, 
 (or to him and the heirs of his body,) is fol- 
 lowed by a limitation over in case of his 
 dying witht)ut leaving issue living at his 
 death, the only effect of these special words 
 is to make the remainder contingent on the 
 described event. They are not considered as 
 explanatory of the species of issue included 
 in the prior devise, and therefore do not pre- 
 vent the prior devisee from taking an estate 
 tail under it. The result simply is, that if 
 the tenant in tail has no issue at his death, 
 the devise over takes effect: if otherwise, 
 the devise over is defeated, notwithstanding 
 a sul>se(iuent failure of issue." 2 Jarm. on 
 Wills. :•,.-.<). 
 
 In Whit worth v. Stuckey, 1 Rich. E(i. 404. 
 the devise under the will of John P.axter 
 Kriiser was to his son, "for and during his 
 natural life, and at his death to the lawful 
 issue of his body; and if he should die with- 
 out lawful Lssue living at the time of his 
 
 •442 
 ==death, then over. It was held, that the lim- 
 itation to the lawful issue of the devi.see's 
 l)ody served only to enlarge his estate to a 
 fee conditional at common law. and did not 
 give the issue a remainder as purchasers. 
 
 See Hull v. Hull, 2 Strob. Eq. 100. and Hay 
 V. Ilay, :i Rich. Eq. .384. where the same rule 
 of construction prevailed. 
 
 Much was said at the bar about the ab- 
 surdity of a rule of construction, which as to 
 the personalty would give the issue as pur- 
 chasers an estate by way of remainder, while 
 as to the realty, devised in the same lan- 
 guage, and in the same clause of the will, 
 the first taker should be considered as taking 
 an estate in fee conditional. I cannot under- 
 take to say how far the judgment of the ma- 
 jority of this Court has been infiuenced by 
 this kind of argument. That, in a case 
 where real and per.sonal estate are given, in 
 the same clause and language, to one and his 
 issue, or the heirs of his body, and, if he 
 dies without leaving issue, then over, the 
 first taker will have a fee conditional in the 
 real estate, and a life estate in the personal- 
 ty, with renuiinder to the issue as purchas- 
 ers, is sustained by the most conclusive au- 
 thorities. The distinction is taken upon the 
 most satisfactory grounds. It results from 
 the different nature of the two species of 
 property. In reference to the real estate, it 
 comes under the operation of the rule in 
 Shelley's case, which is established upon im- 
 pregnable foundations of reason and authori- 
 ty. As to both species of property, it is ob- 
 viously the intention of the testator to give 
 an estate to the issue. Inasmuch as the real 
 estate is descendible, the intention is satLs- 
 fied, without infringing the rule in Shelley's 
 case by the issue taking by way of limitation. 
 The estate must descend to them per forinam 
 doni, unless the first taker, upon the perfor- 
 mance of the condition, shall have alienated. 
 But personal propert}' not being descendible, 
 the issue or heirs of the body, as such, could 
 take nothing under a bequest like this. Un- 
 less they take as purchasers, the first taker 
 must have an absolute estate. Therefore, as 
 the rule does not apply to personal estate, 
 and the intention of the testator would be 
 
 *443 
 
 otherwise defeated, the issue *are allowed, 
 by a favourable construction in their behalf, 
 to take as purchasers, which is the only 
 character in which they could take at all. 
 
 Forth v. Chapman, 1 P. Wms. (K!o, is the 
 leading case in the English Courts ui»on this 
 point. It has been strictly followed in our 
 Courts, in Mazyck v. Vanderliorst, Bail. Eq. 
 4S. and in Hull v. Hull, 2 Stroli. Eq. lOU. 
 Instability as to the rules which regulate 
 the descent, and distribution of property, re- 
 sulting from a change of judicial opinions, 
 is mischievous to the last degree. 
 
 There was a disposition, in the construc- 
 tion of Tonge's will, to give to the testa- 
 tor's intention a controlling force and eftect, 
 which, in questions of this sort, is beyond 
 what is legitimate. The rule, that the testa- 
 tor's intention is to govern, is subordinate to 
 other rules. (Jne of these is, that where the 
 
 179
 
 *443 
 
 4 RlfllAIiDSON'S EQUITY REPORTS 
 
 testator lias used technical words, the tech- 
 nical meaning Avill prevail, unless he has 
 sufficiently explained, in the context, that he 
 has used those \Aords in some other than the 
 technical sense. The intention is to be care- 
 fully and patiently sought. But to seek for 
 it, without the aid of this, and other rules, 
 which have been sanctioned by wisdom and 
 experience, is to embark upon the voyage of 
 discovery Avithout chart or compass. It 
 would give rise to the greatest degree of un- 
 certainty. The interpretation of no will 
 could be known, until it had undergone ju- 
 dicial construction. 
 
 If it be ascertained, that the technical im- 
 port of the language employed, and which is 
 not explained in the context to have been used 
 in a different sense, would create a particular 
 kind of estate, then the intention of the tes- 
 tator in contradiction of this, is wholly un- 
 important. Thus, in the case of a gift to one 
 generally, and the heirs of his body: or a 
 gift to one for life, and at his death to the 
 issue of his body, if it appears from an ex- 
 amination of all the parts of the will, that it 
 was the testator's intention to give the estate 
 to the first taker, and to his issue after him 
 in indefinite succession, it is a fee tail in 
 England, and a fee conditional in South Car- 
 olina, no matter what may have been the 
 
 *444 
 further ''intention of tho testator. When the 
 primary intention to create what is consid- 
 ered a fee conditional is manifest, the ex- 
 press limitation of the estate of the an- 
 cestor to the period of his life, is utterly 
 immaterial. And the most positive and un- 
 equivocal words restricting the ancestor's es- 
 tate to the period of his life, and inhibiting 
 its continuance beyond that period, will not 
 aifect tlie construction. 
 
 The express limitation of the estate to the 
 ancestor for life, is as clear an indication, 
 that his e.state is not to be extended beyond 
 that period, as any superadded words of ne- 
 gation however strong, could possibly make 
 it. It is the gift of the estate to the issue 
 generally, to be enjoyed by them in indefinite 
 succession which stamps the estate as a fee 
 conditional: the attributes of which the tes- 
 tator is not permitted to change, or modify, 
 whatever may be his intention, (a) On the 
 contrary, if an estate be given to one, and at 
 his death to the heirs of his body, and it ap- 
 [tears from tlie context, that it was the tes- 
 tator's intention not to give the estate to 
 
 (a) Robinson v. Robinson, 1 Burr, 
 Burr, 2571); 2 Wm. Bl. Ul)8. 
 
 ISO 
 
 ]S; 4 
 
 the heirs of the body generally, but to a par- 
 ticular class of his heirs, namely, those who 
 should be living at the death of the first 
 takei", the ancestor would take but a life es- 
 tate, and the heirs of his body living at his 
 death, would take in remainder as purchas- 
 ers. (Jesson V, Wright, 2 Bligh, 1.) 
 
 By reference to Edward Tonge's will, it 
 will be perceived, that after the life estate 
 given to his wife and mother, he gave to 
 James Boone Perry a life estate, and at his 
 decease, to his male issue, and in default of 
 such, (that is, of such male issue,) to his is- 
 sue female surviving him, &c. Is tliere any 
 thing here, clearly to indicate, that the male 
 issue were not intended to take in indefinite 
 succession, if they took at all: for we have 
 shown, in the preceding pages, that there be- 
 ing a limitation over, which as to the per- 
 sonal estate would be valid, is not sufficient 
 to qualify the generality of the term "issue" 
 when applied to real estate, so as to make it 
 mean issue living at the death of the first 
 taker. It was only on the default of the 
 
 *445 
 male issue, that the estate was to go *over to 
 the issue female surviving him, (James 
 Boone Perry.) It was not to go to the fe- 
 male issue, until the whole line of the male 
 issue had run out, and this might not be 
 until a remote period. — There are a thou- 
 sand cases to show that the words "in de- 
 fault of issue" or "in default of such issue," 
 mean an indefinite failure of issue. Some 
 stress was laid upon the word "surviving" 
 him, which was applied in the will to the 
 female issue, and not to the issue male. 
 This could have no effect upon the gift to 
 the male issue. This could not be stronger 
 than if the testator had said, upon the de- 
 fault of the male issue, I give the estate A. 
 B. and C. the daughters of James Boone Per- 
 ry. This clearly would not have given the 
 estate to the male issue as purchasers: for 
 it was to descend in the nmle line, until it 
 had entirely failed, before it was to go to 
 the female issue at all. 
 
 For the foregoing reasons I dissent from 
 file judgment of a majority of this Court. It 
 is calculated to produce, if it prevails as an 
 authority, some radical changes in the rules 
 of law on this subject, and will probably lead 
 to much litigation. 
 
 I had intended to submit some remarks 
 on the other question referred to the Court 
 (of Errors.) But thi-s opinion is already long, 
 and any thing I might say on the other 
 branch of the case would be mereiy specula- 
 tive.
 
 IN THE COURT OF ERRORS 
 
 COLUMBIA— MAY, 1852. 
 
 All the Judges and Chaxckllors Present. 
 
 4 Rich. Eq. ♦447 
 
 ♦MOSES S. McCALL v. JAMES S. McCALL 
 
 et al. 
 
 (Columbia. May, 1852.) 
 
 [WiUs <g=>.".Sl.l 
 
 Tpstiitrix, Jiavins sixty-four iiefyioes, made 
 Iipr will by which she bequeathed sixty-two by 
 naiiio: of the sixty-two, sixty were properly 
 named, and two were bequeathed by tiie names 
 of lyittle Harry and Alonzo: she bad no negroes 
 l)y those names, but had four not named in the 
 will, to wit. Little Harriet, Manza, Lydia and 
 Tom: by a codicil she lK>queathed I>ydia and 
 Tom as nejrroes not named in her will:— //eW, 
 that Little Harriet and ^L1nza passed under the 
 bequest of I^ittle Harry and Alonzo. 
 
 [Kd. Note.— Cited in Rosborouuih v. Hemphill, 
 n Rich. Eq. 99: Boyd v. Satterwhite, 12 Rich. 
 E.l. 490: Scaife v. Thomson. 15 S. C. .•{(>(): 
 Cunincham v. Cuningham. 20 S. C. ,S.^0 : Re\- 
 nolds V. Reynolds, 6.") S. C. r',94, 4^ 8. E. STS. 
 
 Fur other cases, see Wills. Cent. Dig. § 1268; 
 Dec. Dig. <S=»581.] 
 
 Before Johnston, Ch., at Darliugton, Feb- 
 ruary, ISol. 
 
 This case arose out of the will of the late 
 Mrs. Hannah Sanders, of Darlin^iton. 
 
 The te.statrix died the l.'Jth of April. 1S47. 
 By the 7th clause of her will, which was duly 
 executed the 2()th of .January. I.s44, she be- 
 (luealhed as follows: 
 
 To Moses McCall (the plaintiff) "I give and 
 beiiueath tlie following negroes, to wit: Bet- 
 ty. August, Eliza, Thilip, Little Harry and 
 Alonzo," in trust 'for the sole and separate 
 use. henetit and behoof of Elizabeth H. 
 llaynsworth, wife of Thomas B. Hayn.s- 
 worth." 
 
 The will contained a residuary clause, by 
 which the testatrix g:ivc one lialf llic rest and 
 
 ♦448 
 residue of her e.state to Jan)es S. *Mc('all, 
 and din>cted that the other he sold, and the 
 proceeds laid out in the purchase of negroes, 
 lor the use and beiielit of the cinldren of 
 James M. Sanders. 
 
 It appeared at the hearing, that the te.sta- 
 tri\ enijdoyed eminent coun.sel to draw her 
 will. That when her lawyer was taking notes 
 for the draft of it, she directed him to dispose 
 
 dren, In trust for .Mrs. llaynsworth. — That 
 Eliza was at the plantation, some 20 miles 
 otf. and had three children, named Philip, 
 Little Harriet and .Manza ; that the testatrix 
 not knowing or recollecting the names of the 
 two latter, called in a woman i«ervant, to give 
 their names to the counsel. — The counsel un- 
 derstood her to give their names as Little 
 Harry and Alonzo, and so drew the will, 
 which was subsequently read and duly ex- 
 ecuted. 
 
 It also appeared that the testatrix had no 
 negroes by the names of Little Harry and 
 Alonzo. 
 
 The bill was to obtain such a construc- 
 tion or correction of the will, as would pass 
 Little Harriet and Manza under the seventh 
 clau.se. 
 
 The ca.se was heard at Darlington, the 10th 
 of February. 1851, and the fon-going evidence 
 was received subject to objection. 
 
 It further appeared at the hearing, that 
 the testatrix had, at the date of her will, 
 sixty-four negroes. The negroes named in 
 the different clauses of the will are .sixty- 
 two in numl>er. Two, by the names of Lydia 
 and Tom. whose names were omitted, were 
 subse(iuently specitically be(iueathed, by a 
 codicil executed the 18th of November, 1840. 
 
 Johnston. Ch. When I heard this cause, I 
 intended to take notice in my decree of the 
 numerous authorities referred to by the coun- 
 sel in their argument. But the already over- 
 whelnung, ami continually increasing, busi- 
 ness o( this Court, has left me neither time 
 nor strength to undergo that labor — nor is it, 
 in my opinion, necessary. 
 
 The cases are very numerous, and. it must 
 *449 
 be confessed, con*tUc-ting; .so nuich so, that 
 it is impossible to reconcile them. T'nder 
 such circumstances, it is safer to depend on 
 principles than precedent. 
 
 There are certain leading principles, well 
 sustained by authority, and reconnnended by 
 rea.son and .sound iKJlicy, from which Courts 
 should never depart, let the circumstances 
 
 of Betty. August and Eliza, with Elizas chil- of hardship or injustice in the particular 
 
 ©=3For other cases see same topic aud KEV-NUAIUER iu all Key-Numbered Digests and Indexes 
 
 181
 
 *449 
 
 4 RICIIARDSONS EQUITY REPORTS 
 
 case before them plead as strongly as they 
 may for the deviation. 
 
 No degree of moral rectitude in the admin- 
 istrators of law can compensate for that 
 uncertainty, which they must ever introduce, 
 when they aliandon, or lose sight of. those 
 sound principles which alone can secure jus- 
 tice generally and, without their guidance, 
 vainly attempt to attain the justice of each 
 particular case. 
 
 One great object for which Courts are in- 
 stituted, is that their decisions may form 
 rules of action and rules of property to 
 which men may conform without the neces- 
 sity of litigation. This would be entirely 
 frustrated, by the mode of procedure indi- 
 cated, even with the greatest rectitude, and 
 the strongest judgment, on the pait of the 
 judges. But what must be the result, when 
 bad men, untrannneled by rules, or princi- 
 ples, occupy the forum. Caprice and atfec- 
 tion must dictate the law ; and intolerable 
 oppression and tyranny must usurp the place 
 of justice. 
 
 There are well ascertained principles ap- 
 plicable to this case, and from these there 
 should be no departure, notwithstanding the 
 anomalous cases to be found here and there 
 in the books. 
 
 One of these principles is, that where the 
 law requires the intention of a party to be 
 expressed in writing, you cannot dispense 
 with the writing, and gather the intention 
 from parol. Another is, that where a party, 
 though not compelled by law to do it, does 
 employ writing as the vehicle of his inten- 
 tion, you cannot resort to parol as a better 
 vehicle. 
 
 The statute of 1S24 imperatively requires 
 wills of personalty to be executed, in all re- 
 spects, as wills relating to realty were pre- 
 viously required to be made. Suppose I was 
 to receive the evidence of mistake in the 7th 
 clause of Mrs. Saunders's will, that would be 
 
 *450 
 
 very *good to prove that, that is not in the 
 clause, which she intended to put in it. But 
 how can I put into that clause any words, 
 names, or provisions, which she did not in- 
 sert? If I were to amend her will, in any 
 part or in any way, I must do it upon a 
 princii)le that would justify and require me 
 to amend it in every part and in every way 
 that parol evidence might point out. And 
 after I had so altered the will, could I hold 
 it up and point to her signature as proof that 
 she had executed it, with the alterations, as 
 required by the statute? 
 
 The evidence offered might be good to 
 prove that no such names as Little Harry 
 and Alonzo should be in the 7tli clause of 
 the will, being inserted by mistake. That 
 evidence would be very good by way of 
 avoiding the will ; and, if this were the 
 forum for that purpose, it would be worthy 
 of consideration. But suppose I were to 
 IS2 
 
 strike out the names now in the clause, that 
 would not be sutHcient, unless I inserted 
 others in their place ; and the question is, 
 can I upon parol take the names of other 
 negroes, forming at the time I in^erfere with 
 them, part of the residuum, and covered by 
 the residuary clause of the will, and insert 
 them in the 7th clause? Can I upon parol, 
 transfer property from the residuary clause 
 to any prior or specific clause? Can I upon 
 evidence thus change the operation of the 
 different parts of the will? 
 
 If I can, the statute of 1824 is a nullity. 
 If I can do what is proposed, no one need 
 hereafter trouble himself with arguments to 
 shew the construction of a testamentary pa- 
 per. All he has to do is to prove that the 
 instrument was differently intended from 
 what appears on its face, and then it may 
 be altered to conform to the evidence. 
 
 Chancellor Harper, in one of our cases, 
 discussed the same principles in relation to 
 reforming a deed, and all liis objections, in 
 that case, arising out of the statute of 
 frauds, are just as strong in relation to wills 
 under the statute of 1824. 
 
 This view of the case is sutttcient to dis- 
 pose of it. But if we omit the statute al- 
 together, still in my apprehension, the result 
 must be the same. 
 
 *451 
 
 *It is a familiar observation that you may 
 and should learn the exact posture of a tes- 
 tator's affairs at the date of his will ; and 
 that this knowledge may be obtained by 
 parol. Certainly, the posture of a testator's 
 property can hardly be learned otherwise 
 than by parol. Parol is competent, therefore, 
 to prove it. But for what purpose is this in- 
 formation desiralde? Is it not simply to 
 enable the Courts to apply the will to the 
 property ? 
 
 You see in the will property described so 
 and so, and disposed of thus and thus. You 
 learn by parol that there is property an- 
 swering to the description. The will is then 
 applied to it in the way directed. This is 
 construction. 
 
 If there be two or more subjects to which 
 a given provision may be applied, that one is 
 supposed to be intended which answers most 
 completely to the descriiition given. But no 
 provision can, upon any safe or sound prin- 
 ciple, be applied to a subject which does not, 
 in some sense, answer to tiie description 
 given. 
 
 If the testator gives stock, for example, 
 you apply his will to bank, or government 
 stock, stock in trade, or in a joint stock 
 company, or co-partnership, or to live stock, 
 according as he may own one or the other. 
 If he owns all these kinds of stocks, you 
 look to the usages of language or to the con- 
 text of the will to ascertain liis intention. 
 
 If the description given in the primary, or 
 more limited, or stricter meaning of the
 
 McCALL V. McCALL 
 
 *454 
 
 words, finds no f<miii«'riijirt in the testator's 
 property, Imt suliji-cts are fmind to wliicli 
 the words in some other sensi- will apply, 
 you aiiply them to these subjects. lUit it 
 should be steadily observed, that it is the 
 will of the testatdr. and lutthini,' but the will, 
 that is to be so applied. It is his words, 
 found in his will, that are to be applied ; 
 not the words of a witness testifying what he 
 meant or what lie did not nn-an. 
 
 The words are to be ai)plied by construc- 
 tion, and not by proof of the intention with 
 which they were employed. If, in themselves 
 they are capable of no constructidu api)li- 
 <able to the subject projiosed. you ar«' not to 
 learn from any foreij,'ii source, from any wit- 
 ness, or from any docuuients not referred to 
 
 *452 
 in the will, *that the words were intended 
 to have any operation different from what 
 they puiport. 
 
 And here I would observe, in order to 
 show the utter incompetency of parol expla- 
 nation, or parol evidence, to .show what 
 Mrs. Saunders's real dispositions were, that 
 though if the testatrix had referred by her 
 will to any document extrinsic to it, that 
 would have been part of her will — a full 
 testamentary paper in writing, in the sense 
 of the statute: yet if her will had, in so 
 maiiy words, declared that her dispositions 
 had been confided to one of her friends, who 
 was instructed to declare and explain them 
 by parol, this would have been no will. If 
 such itarol declaration could have no ettica- 
 <-y as a testament, how can parol be allowed 
 to operate when offered by way of a testa- 
 mentary explanation? A written will is the 
 only means of disi)lacing the law of intes- 
 tacy. It is the only authority which Courts 
 '•an have to treat the property of a deceased 
 person as testate property ; and must there- 
 fore be the measure of their interference 
 with the property. The clue to the property 
 must be found in the will itself. 
 
 The witness in this case says, the testatrix 
 intended to give Eliza's children along with 
 Kliza herself. If she had said .so in her will, 
 1 would have given effect to it. That would 
 have been a good be<iuest of the children, 
 notwithstanding the subsi><iuent misnaming 
 of them. But there is nothing of that kind 
 in the will. 
 
 Nor does it appear in the instrument that 
 Harry and Alonzo were given as children of 
 Kliza ; or that any relation iK'tween Kliza 
 and the negroes so named was in the mind of 
 the testatrix. The negroes are given sepa- 
 rately and distinctively. Suppose between 
 the execution of the will and the dealh of 
 her mistress, Eliza had borne two thildren, 
 called Harry and Alonzo; or that any other 
 wench on the plantation had borne two such 
 • hiidren. or that Mrs. Saunders had bought 
 or inherited two negroes bearing tbes.- names 
 — iu either of these cases, would Harriet and I 
 
 Manza still pass under the 7th clause? 
 Again, as the will is silent as to any con- 
 nection between the two misnamed negroes 
 
 •453 
 ♦and Eliza, why are we to select Harriet and 
 Manza particularly to supply their place? 
 Why not take Lydia and Tom. whose names 
 are omitted in the will, as well as these two? 
 The truth is. there is no guide but i>arol, 
 and that is incomi)etent. 
 
 I conclude by observing, that this is not a 
 case, as was argued, where partd is admis- 
 sible to exjilain an ambiguity. 
 
 Where an ambiguity exists in the terms of 
 a will, themselves, that cannot be explaine«l 
 by matter dehors the will. This is, however, 
 not a ease of that sort. 
 
 Where a will, in itself plain, is rendered 
 ambiguous by parol evidence, then its intend- 
 ed operation may be stated by parol. 
 
 This is supposed to be a case of the latter 
 sort. liut it is not. 
 
 Where a subject has been found among a 
 testator's property answering in some sort, 
 a description given by him, iu one of his 
 legacies, parol may be received to show the 
 existence of another subject or article of 
 property, better answering the description, 
 and then the will is applied to that. But 
 this is not evidence to explain the meaning 
 or intention of the will. 
 
 A case of ambiguity, where it is lawful to 
 explain the intention, is where the will is 
 plain in its terms, but there are shown to 
 exist two or more subjects equally coming 
 within the terms. If the words of the will 
 are not equally ajiplicable to both, the will 
 is applied by construction, and not by expla- 
 nation, to that one most fitting to the words, 
 I and no parol evidence of intention can be 
 received. It is only when the words are as 
 applicable to the one as the other that am- 
 biguity exists, (and this is the very meaning 
 of the word.) Then parol is receivable to 
 show which was intended; as in the familiar 
 case, where a legacy is given to testator's 
 .son John, and he has two ^ons of that name; 
 or where he gives his black horse, ha\ing 
 two or more of that color. 
 
 This is evidently not a case fully within 
 the principle stated. On the whole. I cannot 
 sustain the bill: and it is orden-d that it be 
 ilismissed. 
 
 The complainant apiiea!e<l, on the follow- 
 ing grounds: 
 
 First. Because the testimony of the wit- 
 ♦454 
 ness who drew the ♦will, and of the witness 
 who was present at the time of instructions 
 given, was competent and should have been 
 received. 
 
 Second. Because, by the case made on the 
 
 pleadings, the complainants were entitled to 
 
 a decree for the negroes claimed by the bill, 
 
 as the legacy of Mrs. Haynsworth. 
 
 The case was ordered by the Equity Court 
 
 183
 
 *454 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 of Appeals to this Court, where it was now 
 heard. 
 
 Moses, for appellant, cited, on the first 
 ground, 3 Swinb. 896, pt. 7, § 5; Stookdiile 
 V. Bushby, 19 Ves. 381; Beaumont v. Fell, 
 2 P. Wuis. 140; Prec. in Cli. 229; Pendleton 
 V. Grant, 2 Vern. 517; 2 A^es. 276; Selwood v. 
 Mildmay, 3 Ves. 306; Door v. Geary, 1 Ves. 
 255; Hodgson v. Hodgson, 2 Vern. 593; Cuth- 
 bert V. Peacock, 2 Vern. 594; Walpole v. 
 Cholmondeley, 7 T. R. 138 ; Doe de LeCheva- 
 lier V. Huthwaite, 5 Eng. C. L. R. 407; Mas- 
 ters V. Masters. 1 P. Wms. 145; Cheney's 
 case, 5 Coke, 68; Gorvey v. Hibbert, 19 Ves. 
 125 ; Harrison v. Harrison, 5 Cond. Eng. 
 Ch. R. 390; Garth v. Meyrick, 1 Bro. C. C. 
 30; Smith v. Coney, 6 Ves. 43; Colpoys v. 
 Colpoys, Jac. 451: Green. Ev. § 287, note; 
 River's case, 1 Atk. 410 ; Roper on Leg. 494, 
 note 9; Whithread v. May, 2 B. & P. 593; 
 Stephenson v. Heathcock, 1 Eden, 38; Baugh 
 V. Read, 1 Ves. jun. 2.59; Doe v. Brown, 4 
 East, 441; Doe v. Oxenden, 3 Taunt. 147; 
 Goodtitle v. Southern, 3 M. & S. 171; Sand- 
 ford V. Chichester, 1 Mer. 653; Bradwin v. 
 Harper, Anib. 374 ; Thomas v. Thomas, 6 T. 
 R. 671; 1 Story. Eq. § 180; 2 Dana, 47; 
 Geer v. Winds, 4 Des. 85 ; Hatch v. Hatch, 
 2 Hayw. 32; Thomas v. Stephens, 4 Johns. 
 Ch. 607; Miner v. Boneham, 15 Johns. R. 
 226; Powell v. Dibble, 2 Dall. 71; Doe v. 
 Roe, 1 Wend. 541; Ryers v. Wheeler, 22 
 Wend. 148; Webley v. Landstaff, 3 Des. 504; 
 Wilson ads. Robertson, Harp. Eq. 56 ; Don- 
 ald V. Dendy, 2 McM. 130. On the second 
 ground he cited State v. Scurry, 3 Rich. 69. 
 
 Harllee, contra, cited Rothmaler v. Myers, 
 4 Des. 215; Dupree v. McDonald, Id. 209; 
 Jackson v. Sill, 11 Johns. R. 202; Mann v. 
 Mann, 1 Johns. Ch. 231; 3 P. Wms. 345. 
 
 *455 
 
 *The opinion of the Court was delivered by 
 
 WARDLAW, Ch. In ascertaining the sub- 
 ject of a te.stato_r's disposition, the Court 
 may inquire into the situation of his estate, 
 and into every jnaterial fact which is auxil- 
 iary to the just interpretation of his words, 
 for the purpose of identifying the thing in- 
 tended by the words employed. 
 
 In the present case, if the codicil had never 
 been executed, it would appear from the will 
 and competent evidence, that the testatrix 
 owned sixty-four slaves, of which, excluding 
 the two improperly named, sixty are be- 
 queathed. If the construction of the legacy 
 to the plaintiff were to be made in this pos- 
 ture of affairs, it might be doubted whether 
 the legacy of the two negroes in question 
 would not be made up by applying it to Tom 
 and Lydia, as well as by applying it to Har- 
 riet and Manza; and it might be dangerous 
 to apply it to either by parol proof. 
 
 But if the codicil afterwards made, spe- 
 cifically disposing of Tom and Lydia, haa 
 
 184 
 
 been introduced originally as a clause of the 
 will, the case would then be, that a testatrix, 
 having sixty-four slaves, bequeaths' sixty- 
 two of them specifically and without ambi- 
 guity, and bequeaths two other slaves, but 
 applies wrong names to them. In that con- 
 dition of things, we should ascertain from 
 the will and the evidence, that nothing was 
 left upon which the legacy to the plaintiff 
 in trust for Mrs. Haynsworth could operate, 
 so as to give her the number of negroes ex- 
 pressly intended for her, unless we resorted 
 to Harriet and Manza. 
 
 The bequest being of negroes, there is 
 enough of certainty in that descrii)tion to 
 sustain the gift, notwithstanding the partial 
 mis-description arising from the misnomer. 
 The legacy cannot be applied to horses or to 
 any other thing than negroes; and it should 
 be applied to negroes, if these be found. 
 
 A description false in part may be made 
 sufficiently certain, by reference to extrinsic 
 circumstances, to identify the subject in- 
 tended; as where a false description is super- 
 added to one which by itself is correct and 
 adequate. Thus, if a testator bequeath his 
 black horse, having but one horse which was 
 
 *456 
 white; or devise his *freehold houses, having 
 only leasehold houses ; the white hor.se, in 
 the one case, and the leasehold houses, in the 
 other, clearly pass. The substance of the 
 subject intended is certain, and if there be 
 but one such substance, the superadded mis- 
 description inapplicable to any subject, intro- 
 duces no ambiguity. Any evidence is admis- 
 sible which merely tends to explain and ap- 
 ply what the testator has written: and no 
 evidence can be admitted which merely shows 
 what he intended to write. The most accu- 
 rate description of the subject of a gift in a 
 written instrument requires identification by 
 proof, of extrinsic circumstances; and the 
 least accurate description which satisfies the 
 mind of the Court of the (,louor's meaning, ii? 
 within the same principle. If the judgment 
 of the Court be founded upon a comparison 
 of the terms of description employed in the 
 written instrument with the extrinsic evi- 
 dence of the identity of the subject, no at- 
 tempt is made to vary a w^ritteu instrument 
 by pai'ol evidence, nor to ascertain the in- 
 tention of the donor Independently of his 
 written words. The Court does no more 
 than to ascertain the application of the de- 
 scriptive words in the instrument of gift. 
 Wigram on Wills, pi. 9, 67, 70. 
 
 The sound doctrine on this subject is well 
 stated in Swinburne on Wills, 895, (part 7, 
 § 5,) — "The error of the testator in the proper 
 name of the thing bequeathed, doth not hurt 
 the validity of the legacy, so that the body 
 or substance of the thing bequeathed be cer- 
 tain: for example, the testator doth bequeath 
 his horse Bucephalus, whereas the name of 
 his horse" (testator having, as 1 understand, 
 the example, but one horse,) "is Arundel;
 
 SOUTH CARoLIN'A R. R. CO. v. JONES 
 
 *459 
 
 this crmr is not hurtful. Imt tliat the lej:a- 
 tary may olitain tlie hor.se Arundel, if the 
 te.stator's meaning be certain: for names were 
 ■devised to discern tliinj^s: if therefore we 
 have the thin^ it skilleth not for the name. 
 The error in the name apiH'llative of the 
 thinj; beiiiieathed doth destroy the legacy: 
 for example, the testator intending; to be- 
 queath a horse doth bequeath an ox, or mean- 
 ing to bequeath gold, doth bequeath apparel ; 
 in both these cases the legacy is void. The 
 
 •457 
 reason of this diflerence is because *a proper 
 name is an accident attributed to some sin- 
 gular or individual thing, to distinguish the 
 same from other singular things of the same 
 kind whereas names appellative do respect 
 the substance of things, and being common 
 to every singular of the same kind make 
 them to differ from things of other kind or 
 substance." 
 
 It is justly remarked by Judge Richard« 
 son, in the State v. Scurry, ^ Rich. (iS. that 
 "the names of slaves are vague and vary 
 like the names often applied to other chat- 
 tels." 
 
 The testatrix, in the case before us, had 
 the right to change the names of her negroes 
 at her will. That she exercised this right 
 in relation to Harriet and Manza is plaus- 
 ibly argued from the fact that in the codicil, 
 she bequeaths Tom and r^ydia as 'two ne- 
 groes not named in her said will,' and leaves 
 the other negroes to pass by the names men- 
 tioned in the will. That sht' could not 
 have intended such valuable property as 
 slaves to pass under the residuary clause, 
 may be inferred from the doubting manner 
 in which she mentions the existence of any 
 residue. She gives "the rest and residue of 
 her estate, if there be any." 
 
 If the testatrix had owned the two slaves 
 Harriet and Manza and no more, and had 
 bequeathed two slaves, mis-naming them, 
 it could hardly be doubted that the legatee 
 would take Harriet and Manza. Yet that 
 would not differ from the present case in 
 principle; and should not differ in result. 
 
 Thus the construction would stand, if the 
 codicil had formed a clause in the will orig- 
 inally. 
 
 But the execution of a codicil is a republi- 
 cation of a will ; and both papers must gen- 
 erally be construed in i)ari materia, as if 
 they formed but one instrument, uttered uno 
 flatu. A testament, with all its codicils, rep- 
 resents the wishes of the testator concerning 
 the disposition of his i)roperty after his 
 death, and however numerous may be its 
 parts, it is to be construed as one declara- 
 tion of intention, uttered at the death of 
 testator. 
 
 It is at this point, we di.ssiMit from the 
 circuit decree. "We do not assail the general 
 doctrines of the decree concerning tlii> ad- 
 missiiiility of parol evidence to varv ji writ- 
 
 MSB 
 ten Instrument; but we *suppose the Chan- 
 cellor has overlooked the proposition that 
 the will and codicil are to be c<mstrued as 
 one. entire instrumt nt. — His attention seems 
 not to have been directed to this point on the 
 circuit; even in the learutHl argument here, 
 the point was barely suggested. 
 
 It may be olijecte<l that the will as it real- 
 Ij- stofxl originally, independent of the codi- 
 cil, nuist. uium just reasoning, mean the 
 same thing after the codicil as it meant be- 
 fore: and if it could not have been con.strued 
 to n>fer to Harriet and Manza at the date 
 of its execution, its meaning could not be 
 changed by matter subsequently arising. 
 The objection is more specious than solid. 
 It is competent for a testator, by subsiMjuent 
 testamentary disposition, to declare his in- 
 tention in matters pn'viously dubious; or 
 to interpret a prior disposition where it Is 
 not dubious: or even to declare his meaning 
 in opposition to the plain import of the 
 terms previously employed. All his testa- 
 mentary dispositions make one testament. 
 
 It is ordered and decreed that the circuit 
 decree be reversed in the particular above 
 mentioned ; and it is declared and adjudged 
 that the plaintiff is entitled to the slaves 
 Harriet and Manza. — Defendant must ac- 
 count for the hire of these slaves, if any 
 accrued. Costs to be paid from the estate 
 of testatrix. 
 
 O'XEALU EVANS. WARDLAW, FROST. 
 WITHERS and WIHTNKR, JJ., and JOHN- 
 STON. DINKIN and HARGAN, CC, con- 
 curred. 
 
 Decree reversed. 
 
 4 Rich. Eq. *459 
 
 ♦THE SO. CA. R. R. CUM 1 'A NY v. JAMES 
 
 JONES and J. J. KENNEDY. 
 
 (Columbia. May, 18.1:.'.) 
 
 [Bridfjcfi <©=>:}.'■>. 1 
 
 Charter autlionzing the grantees to collect 
 toll, at the Augusta bridge, across the Savannah 
 river, from persons noiiig fn)m the South Carolina 
 side; "hut the collecting of said toll sludl not 
 subject the R. R. Company, or the comiiumity, 
 to the payment of double toll:"' Jlcld, not to 
 authorize the grantees to collect toll from per- 
 .soiis going from the South Carolina side, as long 
 as such persons are required to pay again at a 
 irarc! on tlie fJeorgia side owned by the City 
 Council of Aui,'usta. 
 
 I Ed. Note. — For other cases, see Bridges, 
 Cent. Dig. § 70; Dee. Dig. <g=>:W.] 
 
 By an Act of 1813 of the Legislature of 
 South Carolina. (9 Stat. 471.) Henry Shultz 
 and Lewis Cooper were authorized to build 
 a toll bridge over the Savannah river, ex- 
 tending from this State to the town of Au- 
 gusta, in the State of (Jeorgia, and the .same 
 was vested in them, their heirs and assigns, 
 for twenty-one years. In Decend)er. 1830, 
 the Legislature renewed the charter then 
 
 «g=>Kor other cases see same topic auU KEY-NUMBER in aU Key-Numbered Digests and ludexes 
 
 185
 
 *4ri9 
 
 4 RICIIARDSONW K'.^ITITY REPORTS 
 
 aliont to expire, and re-established tlie toll | 
 bridge, whicli had been built, for fourteen j 
 years after the expiration of the said twen- 
 ty-one years, in the Bank of tlie State of 
 Georgia, who were represented to have be- 
 come the proprietors of said bridge by legal 
 purchase, (9 Stat. 589.) The city of Augusta 
 subsequently became the proprietor of all 
 the rights and interest in the premises of 
 the Banli of the State of Georgia. 
 
 In 1814, the Legislature of the State of 
 Georgia granted similar privileges to Henry 
 Shultz and John McKinne, (to whom the 
 right of Lewis Cooper had been assigned) for 
 the term of twenty years. In 183.3, the Leg- 
 islature of the State of Georgia, at the 
 instance of the Bank of the State of Georgia 
 representing that the Bank was sole pro- 
 prietor of the bridge, extended the Act of 
 1814 in behalf of the Bank of the State of 
 Georgia and its assigns, for ten years from 
 November, 1834. And in December, 1840, 
 the Legislature of Georgia vested in the City 
 Council of Augusta, represented to have be- 
 come the purchasers of said bridge, all the 
 powers, authorities, and privileges vested by 
 law in the late owners of said bridge. 
 In 1845, a bill was filed in the Circuit 
 *560 
 Court of the United * States in behalf of 
 Henry Shultz against the City Council of 
 Augusta and others, alleging certain matters 
 to show that he was entitled to the Augusta 
 bridge and an account of the tolls received, 
 and praying relief accordingly. The cause 
 was heard on demurrer, and in 184»> the Cir- 
 cuit Court sustained the demurrer, and order- 
 ed the bill to be dismissed ; from which decree 
 an appeal was taken to the Supreme Court 
 of the United States. Pending this appeal, 
 to wit, on December 17, 1848, the charter 
 granted by the State of South Carolina ex- 
 pired; and on December 19, 1848, an Act 
 was passed by which the bridge was re- 
 chartered, and vested in Henry Shultz and 
 John McKenne for fourteen years: rates 
 of toll were prescribed; and the charter 
 contained the following proviso: "that the 
 said Henry Shultz and John McKenne shall 
 not be allowed to charge and collect toll as 
 aforesaid at the South Carolina end of said 
 bridge, until the litigation now pending in 
 the Supreme Court of the United States in 
 relation to the said bridge, and the proceeds 
 of the sale, shall be determined against the 
 City Council of August." (11 Stat. 532.) 
 
 In December, 1849, this proviso to the Act 
 of 1848 was repealed, and Henry Shultz and 
 John McKenne were "authorized to collect 
 the rates of toll now established by law, 
 at the South Carolina end of the said bridge, 
 from all persons going from the South Caro- 
 lina end, but not from persons coming from 
 the Georgia end of the bridge; but the col- 
 lecting of said toll shall not subject the Rail 
 Road Company, or the community, to the 
 payment of double toll," (11 Stat. 615.) 
 
 186 
 
 After the passage of the Act of 1849, 
 Henry Shultz died, and administration of 
 his chattels and credits was committed to 
 the defendants, who erected a gate on the 
 public highway leading to the bridge, and 
 proceeded to collect toll from the plaintiffs 
 and all persons going from the South Caro- 
 lina side, although such per.sons were com- 
 pelled to pay again at the gate owned and 
 kept up by the City Council of Augusta on 
 the Georgia side. 
 
 The bill prayed a writ of injunction to 
 *461 
 restrain the defendants *from demanding 
 toll of the plaintiffs and from keeping up 
 their gate. 
 
 The case was submitted to his Honor 
 Chancellor Wardlaw at Chambers, who made 
 a pro foiuna decree dismissing plaintiffs' bill ; 
 from which decree an appeal was taken. 
 
 The Equity Court of Appeals ordered the 
 case to this Court, where it was now heard. 
 
 Petigru, Waddy Thompson, for appellants. 
 Bauskett, Carroll, contra. 
 
 The opinion of the Court was delivered by 
 
 DUNKIN, Ch., [who, after stating the 
 facts and quoting, lastly, the provisions of 
 the Act of 1849, above quoted proceeded as 
 follows:] It seems difficult to misconceive 
 tlie purpose of the Legislature in this last 
 provision. In all charters of this character 
 it is the great duty of the Legislature to 
 protect the interests of the public. Cor- 
 porations or individuals, applying for fran- 
 chises or exclusive privileges, are usually 
 sufficiently awake to their own interests. 
 But while the Legislature should promote 
 enterprises whose object is the public conven- 
 ience as well as private emolument, they 
 should adopt every reasonable precaution, 
 that these exclusive privileges should not be- 
 come instruments of oppression or annoy- 
 ance. When application was made to the 
 Legislature, in 1848, it was well known that 
 the City Council of Augusta had a toll house 
 on the Georgia side of the bridge, at which, 
 they received tolls from all persons, &c., 
 passing over the bridge from the Georgia 
 or South Carolina side. It was expressly 
 provided that no tolls should be collected, 
 by the grantees until the Supreme Court of 
 the United States should recognize and es- 
 tablish their rights against the City Council 
 of Augusta. It will not be suggested, that 
 under that Act, strictly provisional, the 
 grantees had any authority to collect toll 
 until the right had been determined by 
 the Supreme Court in their favor. This pro- 
 viso was repealed in the subsequent Act of 
 1849. But in lieu of it, the Act declares, not 
 
 *462 
 only that the grantees should not col*lect 
 toll "from persons coming from the Georgia 
 end of the bridge," but that the collecting 
 of toll from persons going from the South.
 
 YARBOROUGH & .SIIUI/FZ v. RANK OF GEORGIA 
 
 •464 
 
 f'lirilina (-iid of the lirid'-'f "should not sub-! 
 j ( t till' Rail Road ConipiHiy, or the coni- 
 iimnity. to tho paynitMit of doiilde toll." It 
 sciMiis supiTfluons to say that this provi- 
 .sioii was not intt'iidcd for the Iciirtit of the 
 jiranti'es. It was to protect the travelling 
 imMie. and particularly the Rail Road Couj- 
 pany, from the annoyance and injury to 
 which they would he subjected by the con- 
 (lictinj; claims of the City Council of Au- 
 ;:usta. and those who misht demand toll un- 
 der the authority of the Act of 1.S49. It 
 is objected, that this constniction renders 
 the charter valueless. That was for the con- 
 sideration of those who accepted it. It 
 certainly was not the intention of the I-eg- 
 islature to subject the citizen to the pay- 
 ment of double toll (contrary to their express 
 declaration.) and then lesive him to the casu- 
 alties and expense of litij^ation in order to 
 ascertain from which party he mifiht be en- 
 titled to redress. Ilaitpily the Act imposes 
 no burthen.s on the grantees, and exacts no 
 consideration from them. The utmost that 
 can be said is they have not derived from 
 file muniticence of the State the advantages 
 which they hoped and contemplated. 
 
 Alany other and far more dirticult and im- 
 portant subjects have been brought into the 
 <liscussioii, but upon which the Court deems 
 it inexpedient, on this occasion, to express 
 any judgment. 
 
 On the second ground of appeal taken by 
 the complainants, the Court is of opinion that 
 they were entitled to the injunction as pray- 
 ed by the bill, which is ordered accordingly; 
 and the decree of dismissal is reverst»l. 
 
 JOHNSTON, DARGAN and WARDLAW, 
 CO., and O'NEALL, EVANS. WARDLAW, 
 FROST, WITHERS and WHITNER, JJ., 
 concurring. 
 
 Decree reversed. 
 
 Tiic foU.,\ving case, I'.UUUJliUl (ill iV 
 SllUI/rZ V. THE BANK OF GEORGIA and 
 Others, tried before Hari)er, Cl>., at Edgefield, 
 June, 184li, is aiipeiidcd as a note to the above 
 case : 
 [Equity ,©=>184.] 
 
 [Cited in Myer.s v. O'Hanlon, 12 Rich. Eq. 210, 
 to the point that if defendant submits to answer he 
 must answer fully.] 
 
 [Ed. Note. — For other cases, see Equity, Cent. 
 Dig. §§ 422-125: Dec. Dig. <S=184.] 
 
 llAKPKK, Ch. In 1813, the State of South. 
 *463 
 Carolina granted to Henry *Shultz and Lewi.s 
 .Coofter, a charter for a bridge over tiie Savan- 
 nah river, extending from this State into the 
 town of Augusta, for the term of twenty-one 
 years; and in the year 1.S14, the State of 
 Georgia granted a charter for the same i)rid;;e 
 for tlie term of twenty years. In IMtJ. tlie 
 said Henry ."^iiidtz and .Toiin MeKiniie formed 
 a i)artnerslii|» in the bu>;iness of banking, un- 
 der the name and style of tlie Hridne Company 
 of Augusta. Hi'iiig tiien the joint owners, they 
 entered in the partneisiiip book of the Company 
 the bridge, vahied at ."^^To.UUO, and other pro[)- 
 erty, as the partnersiiip stock, with various 
 stipulations which it is not necessary to reca- 
 [litulate. On the I'lst April. ISls," the com- i 
 
 plainant. Siiultz. sold and transferred his inter- 
 est in the partnersiiip to Rarna MeKinne ; 
 conveying the bridge and other real prui)erty. 
 The consideration fur this transfer was the sum 
 of .Sr,.-;.(MIO. ill wiiieh Shultz was indebted to the 
 (irm, and whieji was paid by giving him credit 
 on the books of the tirm. and charging the 
 amount to Hariia M(dviiine. The Cdiniiany l)e- 
 came greatly emijarrassed. in cousequeuce of 
 the failure of certain mercantile firms, with 
 which .Tfihn and liarna MeKinne were con- 
 nected, and thev being indebted to the Rank of 
 
 th<> State of (J -gia. in the sum of .V4(t.(«in. ap- 
 
 plieij to the Rank for a further advance of 
 ."!;.")( ),< 1(10. The evidence is, that in making the 
 applic.ition to the Rank for the advance of $")0,- 
 
 CMM), tl bj.-ct of it is stated to be to relieve 
 
 the I'.ridge Comi)any, and enable it to wind up 
 its affairs; but after the loan was effected, 
 only a portion of the sum, perhaps two-fifths, 
 was applied Ui the use of tin- Company. Notes 
 were given for the a<lvance of .$,"»0,(lOO. signed 
 iiy .John MeKinne. and endorsed by Rarna 
 MeKinne and James I.ampkin. To secure the 
 [layment of the entire sum of ."<!M».0(M». a mort- 
 gage was executed bv John and Rarna McKhine, 
 of the date of the ijd of May. isi'.t. of eighty 
 negroes, the property of John MeKinne; of 
 McKinne's warehouse stpiare, and of the bridge; 
 conditioned to i)e vnid as to the negroes upon 
 the payment of ."}!4( ».( M l( ►. and upon the payment 
 of the remaining .$oO,0<J(). to i)e void altogether. 
 In conseciuence of some mistake in the corporate 
 name of the Bank, another mortgage of the 
 same tenor and effect was executed on the 10th 
 June of the .same year. On the :.".tth of May, 
 ISli), the Bridge Rank stopped payment. I'pon 
 being apprised of this, the c<jmi)lainant, Shultz, 
 who had made arrangements for going to 
 Europe, returned and resunuHl his place in the 
 firm, i)y some agreement with Rarna MeKinne, 
 who (luitted it, and took no further share in 
 the management of its business. The evidence 
 is, that Shultz advanced .$ir>,000 of his own 
 funds, to pay the deposits in the Bank. An 
 advertisement was issued signed by John Me- 
 Kinne and Henry Shultz and Barua MeKinne. 
 stating tli(^ resources of the Bank, in order to 
 ]u event the holders of the bridge bills from 
 saciilieing them, with a notice signed by .John 
 M(d\inne and Henry Shultz, ailvertisiug for 
 sale a number of negroes ami the britlge, and 
 stating that before tlie making of titles to the 
 latter, the lien which the Bank of the State of 
 Georgia had on it should be removed. I^ a 
 
 *464 
 
 deed bearing date the *first of July, 1S20, Bar- 
 na MeKinne re-conveyed, released, and quit 
 claimed to Henry Shidtz, all his interest in the 
 firm or its property. The mortgage to the Bank 
 is charged by tiie bill to be void, by virtue of 
 the Act of the State oi Georgia, wliich provides 
 that if any [lerson unaliie to pay his debts, shall 
 make "any assignment or transfer of real 
 or personal property, stock in trade, debts, dues, 
 or demands,"' in favor of any particular cred- 
 it<ir, whereby other creditors shall be excluded, 
 "such assignment, transfer, deed, (U* conveyance, 
 shall be null and void, and considered in law 
 and ecpiity as fraudulent against creditors; 
 lirovided, nothing in the Act contained shall pre- 
 vent any per.son from bona fide selling any por- 
 tion of his property. 
 
 In ISJl, a petition was tiled on beV^alf of the 
 Bank of the State of (Jeorgia, in the Superior 
 Court for Richmond county, (ieorgia, praying 
 for a foreclosure of the mortgage, and at May 
 Term of tiiat year a rule was issued, directed, 
 according to the jiractice of that State, to John 
 and Barna M(d\inne, reipiiring them to pay the 
 amount of principal and interest due on the 
 mortgage, or to be foreclosed. This having been 
 served and no defence made, at .May Term, 1822, 
 the rule was made absolute, and the defendanta 
 
 187
 
 *4CA 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 were dfclnred to be forever foreclosed; the 
 sum of .f()!).4!).*l was adjudged due to the Bank 
 for their debt, prhieipal and interest, and the 
 sum of dollars for their costs. It was 
 
 further ordered and decreed, that the mortgaged 
 property should be sold, and the surplus, if any, 
 paid to the mortgasors. No sale was made 
 under this decree, as the sale was en.ioined, on 
 a bill filed by Henry Shultz. Christian Breit- 
 haupt, and others, against the Bank of the State 
 of Georgia and others, in the Circuit Court of 
 the United States at Savannah, for the purpose 
 of obtaining a sale under the decree of that 
 Court, so that a full and unencumbered title to 
 the whole bridge might be made to the purchas- 
 er, and praying that the proceeds of the sale 
 might be applied to the payment of the cred- 
 itors of the Bridge Company, and particularly [ 
 to the holders of certain judgments, founded on 
 bridge bills. In this case, by consent of par- 
 ties, an order was made for the sale of the [ 
 bridge, and Freeman Walker and Christopher i 
 Fitzsimons, esquires, were appointed commis- j 
 sioners for the purpose of making the sale, j 
 and it was ordered that the parties should ex- j 
 ecute powers of attorney for that purpose to 
 the said commissioners. In pursuance of this 
 order, a power of attorney, signed by Christian 
 Breithaupt and Henry Shultz. was executed on | 
 the 19th of January, 1S2L'. The sale was made 
 accordingly on the 28th of November, IH'2'2, 
 and the Bank of the State of Georgia became 
 the purchaser, at the price of $70,000. For 
 this amount, the Bank issued scrip, which, by j 
 the order of the Court, was deposited with its 
 clerk. 
 
 The case was afterwards certified to the Su- 
 preme Court of the United States, upon a divi- 
 sion of opinion between the Judges of the Cir- j 
 cult Court, and at January Term, 182.S. was 
 dismissed for want of jurisdiction. The ground 
 of the dismissal was, that the bill contained 
 
 *465 
 *no allegation, that the parties, plaintiffs and 
 defendants, were citizeis of different States. 
 L pon this, a negotiation for a compromise took 
 place. Some difficulties were experienced in 
 the course of the negotiation, but in consequence 
 of it, and with a view to the compromise, the 
 cause, was, by consent of parties reinstated on 
 the docket of the Supreme Court, and removed 
 to the Circuit Court. The necessary amend- 
 ment being made, a final decree was made by 
 consent of all parties, on the 8th of May, 1830. 
 By that decree, the sale made by the commis- 
 sioners in 1822 was ratified and confirmed, and 
 the Bank of the State of Georgia, declared to 
 be "vested with a full, absolute and perfect ti- 
 tle to the said bridge, and its appurtenances, 
 under the said sale, freed, acquitted, released 
 and discharged from all manner of liens, claims 
 or incumbrances, in law or equity, on the part 
 of the said Henry Shultz, John McKinne, Barna 
 McKinne, Christian Briethaupt, or any other 
 person or persons, parties to the said bill of 
 complaint." It was further decreed, that the 
 scrip issued by the Bank, should be cancelled 
 and delivered up to it, and the bill dismissed as 
 to all other matters contained in it. 
 
 This decree was entered in consequence of 
 the compromise which had already been carried 
 into effect by the parties to the suit. The Bank 
 of the State of Georgia paid to Christopher 
 Fitzsimons and Christian Briethaupt, holders 
 of judgments, founded on bridge bills, and to 
 the complainant Shultz, each, the sum of ten 
 thousand dollars; in consideration of which 
 payments, they released to the Bank all their 
 respective rights in the bridge, or the proceeds 
 of its sale, and all debts, dues, actions and de- 
 mands whatever, in the most comprehensive 
 terms possible. The rehase of Shultz, is dated 
 the 15th Sept. 1829. 
 
 On the 15th October, 1828, the complainant 
 Shultz, being in custody of the sheriff of Edge- 
 
 188 
 
 field district, oy virtue of a writ of eai)i:is ad 
 satisfaciendum, in order to obtain the Itenefit of 
 the insolvent debtor's Act, assigned his estate 
 and effects to Thomas Harrison, Treasurer of 
 tlie L'pper Division of the State, for the benefit 
 of his creditors. The assignee declined to ac- 
 cept the trust. On the 2d of May. 18:^,2. a bill 
 was filed by John Stoney, John Magrath. and 
 others, against the present complainant Shultz 
 and others, which was heard by Chancellor John- 
 ston at Edgefield, on the 19th June, 1832. and 
 finally decided by the Court of Appeals, Janu- 
 ary, 1834. In the course of this proceeding, 
 Ker Boyce and Thomas Harrison were appoiutei} 
 trustees for the creditors of Shultz. iu place- 
 of Harrison, who declined to accept alone, an<l 
 on the 8th December, 1830, they were made par- 
 ties to the bill. The object of the bill, (indeed 
 there were several bills which were all disposed 
 of together,) was to obtain payment of certain 
 demands against Shultz. out of his property, 
 and lots of Shultz, in the town of Hamburg, 
 and from the purchasers of lots sold by him. 
 By the final judgment of the Court, certain 
 rents were received, and propeity sold to a 
 considerable amount, (.$70,000 as it was al- 
 leged) and it was iu evidence, that a portion 
 
 *466 
 of those proceeds were applied to the *payment 
 of judgments against Shultz. founded on bitdge 
 bills. The releases of Fitzsimons, Briethaupt 
 and Shultz, were in evidence in that cause. Tbe 
 complainant, Yarborough. was substituted trus- 
 tee in the place of Harrison and Boyce, on 
 the application of Shultz, iu 1840. 
 
 By an Act of the Legislature of the State of 
 South Carolina, of the 18th December, 1830, 
 the charter of the bridge was renewed for a 
 term of 14 years, and granted to the Bank 
 of the State of Georgia, and on the 23d of De- 
 cember, 1833. by an Act of the State of Georgia, 
 a similar grant was made to the same grantee, 
 for a term of ten years. — On the 4th May, 1838, 
 the Bank of the State of Georgia sold and con- 
 veyed the bridge and appurtenances to the de- 
 fendant Gazaway B. Lamar, of that State, for 
 the con'^ideration of .$70,000. On the 21st Jan- 
 uary, 1840, the said Gazaway B. Lamar, sold 
 and conveyed to the defendants, the City Coun- 
 cil of Augusta, for the consideration of -$100,- 
 0(K). Both these defendants deny explicitly any 
 notice of the assignment of Shultz. at the time 
 of their respective purchases. Tiiere was no 
 evidence whatever, of notice to the defendant 
 Lamar, at the time of his purchase. Some ev- 
 idence was oft'ered of notice to the City Council 
 of a claim of Shultz, on the bridge, before the 
 purchase ; but there was a difference as to the 
 terms of it, by the evidence. One witness stat- 
 ed, that it was a notice of the claim of Shultx 
 him.self only, and that upon taking legal advice, 
 they were assured he could have no claim. 
 Another witness stated notice to be given of 
 claims of his creditors. I do not consider the 
 fact of notice to be established. 
 
 The bill charges that the sale made under the 
 judgment of the Federal Court is null and void, 
 ' the bill having been dismissed for want of ju- 
 risdiction ; that the mortgage to the Bank of 
 the State of Georgia, being void under the law 
 of Georgia, the bridge still remains partnershii* 
 property ; that creditors of the partnership have 
 an equity to be satisfied out of the partnership 
 property, in preference to creditors of the in- 
 dividual partners ; that the debt of the Bank 
 is the individual debt of John and Barna Mc- 
 Kinne ; that partnership debts having been 
 satisfied by the individual property of the com- 
 plainant Shultz, he or his assignee and cred- 
 itors, claiming in his right, have a right to b« 
 subrogated to the equity of the partnership 
 creditors, whose debts have been so paid. It 
 charges that if the sale be valid, the Bank i* 
 accountable to the complainant for the amount 
 of the purchase money and interest. The bill
 
 YARHOKOUGII Sc SIIULTZ v. UAXK OF GEORGIA 
 
 *469 
 
 prays that tlif liridi;o may be sold, anil tin- pro- 
 ceeds appropriated amniig the parties according 
 to their resiu-ctivo rights; that the defendants 
 may account foi- the income of tiie hridse. dur- 
 ing tile time that it has iieen in tiieir iKjsscssion 
 respectively, and for general relief. 
 
 The defentlants answer at length to the charg- 
 es of the l)ill. and among other matters of tie- 
 fence, the lianU of the State of (Jeorgia relies 
 by way of pleading, on the want of jurisdiction 
 in this Court; that being a corporation of an- 
 other State, and having no property within the 
 limitB of this. 
 
 ♦467 
 
 *lt might sufBcieutly dispose of all the matters 
 of the i>resent hill, to say that they are conclud- 
 ed by the decree of the Fedi'ral Court. AH the 
 claims now made, were made by that bill. It 
 claimed that the proceeds of the brhlge should 
 be applied to the payment of iiartnersliip cred- 
 itors, an 1 that the defendant should ■•iccount 
 for income; and as to these matters the bill 
 was dismissed. In the case of Cillett v. I'owell 
 [Speers, Kq. 14'2], in which I considered the 
 subject very fully, and in which the decree was 
 affirmed bv the Apiieal Court at its last sitting. 
 I held, that the Circuit Courts of tlu' United 
 States, wei'e superior Courts of general juris- 
 diction, whose judgments, whatever error or ir- 
 regularity they contain, must be respected by 
 all other tribunals, until arrested or reversed 
 by themselves. 1 do not think it necessary here 
 to repeat the reasoning which led me to that 
 conclusion. It is sufhcient to refer to the opin- 
 ion in that case. But. in truth, what error or 
 irregularity appears on the present judgment? 
 The bill, as amended, makes the allegation nec- 
 essary to give jurisdiction — that the i)arties, 
 plaintiff and defendant, are citizens of different 
 States. Can I go into evidence to try the 
 truth of this allegation? And if I could, no 
 such evidence has been offered, but rather the 
 contrary. Or, is it sujiposed that I am to in- 
 quire and decide as to the regularity of the 
 practice of the Supreme Court of the Ignited 
 States, by which, after having dismissed the bill 
 for want of jurisdiction, it i)ermitted the cause 
 to be reinstated on the docket, and remanded 
 to the Circuit Court for the purpose of being 
 amended and heard? and more especially when 
 there is no doubt that this was done by the 
 consent of the parties to the suit. By the prac- 
 tice of the English Chaniery, it does not review 
 its own decrees for error, apparent on the face 
 of them, wiien they have been made by the con- 
 sent of parties. 
 
 But the present complainant, Shultz. and all 
 claiming in his right, must be estopped by the 
 power of attorney to Walker and Fitzsimons. 
 by which the sale was authorized. It is true 
 that the power was executed under the order 
 of the Court; but I do not know that the com- 
 plainant was in custody, so as to give it the 
 character of a tiwd olitained by duress of im- 
 prisonment, nor that the liability to lie attached 
 for failing to perform the order of the (\)urt. 
 could constitute such duress. But in truth, the 
 order of the Court was entered by consent. It 
 was nier(dy the initiative of a contract, which 
 was afterwards carried into effect by the re- 
 lease and the Hnal decree. Supposing it to be 
 void as an order of the Court, it was still bind- 
 ing on the parties as matter of contract. 
 
 Then as to any right of the coniiiliiinants in 
 the bridge itself, it would lie sullicient to sa^. 
 that all the coinjilainant. Shultz's. right and in- 
 terest therein. Had passed away liy the expira- 
 tion of his charter. The franchise or exclusive 
 privilege winch constituted it his ]iroperty, no 
 longer exists, and the material structure is at- 
 tached to and part of the soil, and woidd be 
 the property of the States, the owners of that 
 soil, if the franchi.se had not been renewed to 
 another. It was renewed to the defendant, the 
 Bank, by both States, South Carolina and 
 
 r *468 
 
 (ieorgia. It *is true, that there are cases in 
 which the trustees of a franchise, obtaining a 
 renewal of it in his own name to the [irejudice 
 of his cestui (jue trust, has been hehl to con- 
 tinue a trustee. But I cannot perceive any 
 plausil)le or even imaginable ground on which 
 the Bank could be held a trustee in this case. 
 It cl;iinn'd adverselj under its mortgage, which 
 was certainly good as against the parties to 
 it. and all claiming under them, which the com- 
 plainant. Shultz. must do if he claims at all. 
 It was, so far as appears, for a bona tide debt. 
 It was prosecuted as a hostile claim by the pro- 
 ceeding to foreclose it, in the Court of (ieorgia, 
 and I think its validity established liy the judg- 
 ment of that Court. 
 
 The Act of the State of Georgia seems to re- 
 late only to assignments of tangible jiroperty, 
 or choses in action, and not to the jueferiing of 
 one creditor t<i another liy pa.vment of money. 
 I perceive nothing in the Act to authorize a 
 proceeding for the reclaiming of the money in 
 case of such payment oeing made. So if the 
 parties privatcdy insolvent, shoidd execute such 
 mortgage, and before theii- absolute and avowed 
 insolvency, should redeem the mortgage by pay- 
 ing the money, I perceive nothing to authorize 
 the other creditors to pursue that money in the 
 hands of the mortgagees. So if before any pro- 
 ceeding by creditors to invalidate the mortgage, 
 the mortgagee shovdd foreclose by the judgment 
 of a Court ; if the mortgaged projierty should 
 be sold. an(l the money pai(l over in pursuance 
 of the judgment, there seems still less ground 
 for supposing that creditors would be at liberty 
 to follow the money. In this case the bridge 
 was not actually sold under the judgmi'ut of 
 the Court of Georgia; but this was only pre- 
 vented by the act of the present comiilainant. 
 in obtaining the injunction from the Court of 
 the I'nited States. The amoinit of their debt 
 was awarded, to the plaintiff's liy the Court of 
 (Jeorgia, and the bridge ordered to be sold, and 
 equity regards that as done which is ordered to 
 be done. It is analogous to the case of a judg- 
 ment, founded on a security which was void for 
 usury, wliei'e the confessing or the entering of 
 the judgment was not part of the original usuri- 
 ous contract, but it was obtained in ailversum. 
 Though the contract were absolutely void for 
 the usury, yet when carriivl into a judgment 
 that judgment is valid against creditors of the 
 insolvent usurious debtor, and against all the 
 world. 
 
 Or. if it be said that the judgment of the 
 Court of Georgia could only operate in rem as 
 a foreclosure upon the half of the bridge lying 
 within the State of Georgia, and conld have no 
 effect upon the moiety lying within the State of 
 South Carolina, which is only subject to laws 
 and tribunals of that State, then there is noth- 
 ing Ml the laws of South Carolina to invalidate 
 the mortgage of that portion of the bridge. 
 
 But so far as respects any right in the bridge 
 itself, there are other conclusive grounds against 
 complainant's claim. The defendant. (Jazaway 
 B. Lamar, purchased without notice of the 
 claim of the assignee, or creditors of the com- 
 plainant. Shultz. and purchasing from him. the 
 City Council of Augu.sta would be protected 
 as a purchaser from a iiuichaser without notice. 
 
 *469 
 This was determined in the case of the *City 
 Council of Charleston v. Page. [Speers, Eq. 
 injt.l decided at the last sitting of the Court 
 of Appeals. But as I have intimated. I do 
 not think the notice to the City Council suffi- 
 cient. If it was the notiie of the claim of 
 Shultz himself, and not of his as.signee or cre<l- 
 itors. knowing of his release of 1S2'.I. they would 
 irresistibly be led to the conclusion, that he 
 could have no claim whatever. 
 
 But. indeed. I think the whole claim of the 
 bill is founded on a misconception of the doc- 
 trine relative to the applying of partnership ef- 
 
 189
 
 *469 
 
 4 RICHARDSON'S EQUITY RETORTS 
 
 fects to partnership debts. It is said to be the 
 equity of one partner to enforce sucli appliea- 
 tion/in order tliat liis private pruperty may 
 not be made liable to partnership debts, until 
 the partnership effects arc exhausted. It is 
 also said, that in cases t)f insolvency, this e<iuity 
 may he enforced at the instance of partnership 
 creditors, who, through this eijuity of the pai't- 
 ners, obtain the benefit of such application. 
 But this must be taken to relate to property 
 in the hands of the partners at the time of total 
 and acknowledged insolvency, and when there is 
 some proceeding to wind up the affairs of the 
 insolvent tirm. It cannot relate to property 
 which the partners have before alienated, bona 
 fide, as in payment of a .just debt. Now. in this 
 case, the partners had alienated before the 
 acknowledged insolvency. As I have .said, the 
 mortgage was good and valid as against the 
 partners themselves who executed it and all 
 claiming under them. As to the mortgage, it 
 was bona tide, and it is immaterial that it was 
 executed by the parties in their individual 
 names. Such a method of execution, especiall.v 
 as regards real property, is usual and proper, 
 if not necessary. Now suppose that Barn a Mc- 
 Kinne had remained a member of the firm : had 
 been sued on bridge bills, or (^ther partnership 
 debts, and compelled to pay them, is it to be 
 supposed that he would be permitted to invali- 
 date his own deed for the jnn'pose of reimburs- 
 ing himself.'' So if Shiiltz had not gone out of 
 the firm, but had joined in tlie execution of 
 the mortgage, and afterwards ])aid partnership 
 debts, as he has done, he would stand on the 
 same footing. But I think this is his actual 
 predicament. By resuming his place in the 
 tirm. and accep*^ing a re-conveyance, he has put 
 himself, to all intents and i)urposes. in the 
 place of Barna McKinne, and must be estopped 
 by whatever would estop McKinne. He can 
 only claim through him. He does not properly 
 come as a partnership credit(n'. or the assignee 
 of such creditor, to have a distribution of ])art- 
 nership assets, but as a partner who has joined 
 in the alienation of partnership property, and 
 then lieen compelled to pay partnei'ship debts 
 out of his own property. He was liable for the 
 payment of those debts. This view applies 
 equally to any claim, legal or equitable, in the 
 bridge itself, or the proceeds of its sale. 
 
 With respect to those proceeds, there are oth- 
 er grounds on which the claim must be held un- 
 tenable, and among these is the objection to the 
 jurisdiction of this Court, taken b.v the Bank 
 of the State of Georgia. Having no interest, 
 legal or equitable, in the bridge itself, they 
 have no property within the State. In the case 
 
 *470 
 of Bowden v. Schatzell. Bail. *Eq. 360 [23 Am. 
 Dec. 170]. it was determined that the resident 
 of another State, having property within this 
 State, might be made a party in Court under 
 our Act of the Legislature, though there were 
 not any party witliin the State having posses- 
 sion or control of the property. But it has 
 never occurred to any one to go further and 
 say. that a party neither found or domiciled 
 within the State, nor having proiterty within 
 it. might be made amenable to our jurisdiction. 
 It was urged in argument, that by answering to 
 the bill, the defendants have submitted to the 
 jurisdiction, and must abide the decree on the 
 merits. But it is a perfectly familiar practice, 
 that a defendant may take advantage of that 
 which would be properly the subject of a plea, 
 by way of pleading in his answer. This the 
 Bank lias done. When it is said that the an- 
 swer overrules a plea or demurrer, it is meant 
 that the defendant must answer fully. The ob- 
 ject of a formal plea is to excuse the defendant 
 from answering. He is not to shield himself 
 from making a full answer, on the ground of 
 the excuse which he has offered in the answer 
 itself. These defendants might properly an- 
 swer for the purpose of showing the fact, that 
 
 190 
 
 they had no proi)ert.v within the State, and were 
 therefore not amenable to the jurisdiction. 
 They might also ijropei'l.v answer, for tlie pur- 
 pose of defending tlie tith» of their v«'n(lees. 
 But is it not perfectly apparent, that any decree 
 which I could make with rcsix'ct to this fund 
 would be i»erfectly nugatory V If I should de- 
 cree the payment of the money what jirocess 
 could the complainant have for enforcing the 
 decree? If I should order them to account, how 
 could the Court enforce that orderV If it were 
 sought to enforce such a decree in the Courts of 
 (Georgia, is it probable that those Courts would 
 recognize the validity of it? 
 
 On the ground of time in analogy to the stat- 
 ute of limitations. Whatever ground there may 
 have been for regarding these defendants as 
 mortgagees in possession, before the sale of 
 1822, and the fund produced by the sale as in 
 custody of the Federal Court, they must cer- 
 tainly be regarded as claiming the fund adverse- 
 ly from the time of Shultz's release of 182!I. or at 
 all events, from the decree of the Federal Court. 
 This decree, in effect, awards the fund to them, 
 and has relation back to the sale of 1S22. But 
 from the time of the decree in 1830, to the filing 
 of the present bill in 1841. more than ten years 
 ha\e elapsed, and if it were necessary that the 
 assignees of Shultz should have notice of this 
 adverse claim, they certainly had it so early 
 as the hearing of the cause of Stoney and Ma- 
 grath in 1832. There are various other grounds 
 which might be considered, leading to the same 
 conclusion, and throwing insuperable dilliculties 
 in the way of the complainant's success, but 
 which I do not think it necessary to consider 
 at length. 
 
 It does not appear that this fund, which 
 was sulistituted for the bridge, was included in 
 Shultz's assignment of 1828. The assignment 
 was of his interest in the bridge itself, and 
 though the assignee of an insolvent debtor ma.v 
 be authorized, under the law of this State, to 
 recover any property or interest which the in- 
 
 *471 
 solvent has in the hands of any person *ia the 
 State, the law of South Carolina does not op- 
 erate within the limits of Georgia. The assign- 
 ment of a chose in action in another State, can 
 only be made effectual as the personal act of 
 the assignor. If this assignment were present- 
 ed to a Court of Georgia, could the assignment 
 of Shultz, of his interest in the bridge, be re- 
 garded as an assignment of money in the vaults 
 of the Bank? 
 
 There was evidence of a previous assignment 
 by Shultz, of all his interest in the bridge, to 
 Gaston, of Savannah. 
 
 I could make no decree concerning this fund, 
 without a full account of all the transactions 
 of the Bridge Company, which could only be 
 done by having the representative of Barna Mc- 
 Kinne a party, as well as John ]McKinne. It 
 appears, indeed, that both these were largely 
 indebted to the concern. It appears from the 
 testimony of William Y. Hansel, the former 
 cashier of the Bridge Bank, that these parties 
 had withdrawn very large sums from the firm, 
 for the use of themselves and other firms of 
 which they were members: which, according to 
 the testimony of the same witness, (and I can 
 have no doubt of the fact,) occasioned the fail- 
 ure of the Bridge Company. But I could de- 
 cide nothing on these matters, without such full 
 account as I have suggested. It appears that 
 Shultz, at the time he left the Company, was 
 indebted to it in the sum of .$63,000, for whicTi 
 credit was given him on the books. But on his 
 re-entering the firm, I suppose his indebtedness 
 was reinstated for this amount. He is prima 
 facie liable to the creditors of the Bridge Com- 
 pany ; indeed, he could not be discharged from 
 his liability by the credit given, and this is a 
 much larger amount than the debt of the Com- 
 pany, which he has shown himself to have jiaid. 
 
 A question might be made with regard to
 
 YARlJOHOLCill A SlIULTZ v. BANK OF GEORGIA 
 
 *ilh 
 
 tlio nri«;iii;il inwilidity cif the niortfraso. The 
 McKiiiiics wen- iircviduslv iiidchtcd to tin- Hank, 
 in tlie sum (if $4<).(MI0 : tlicy hi.now.-d ."fHO.- 
 000 at tlu' time, wliicli was I'cpr.'scnt.'d to t\\>- 
 Bank to l)c for tlic use of tlu' Jirid^ic Conipaiiy, 
 and I tliink must be roKardcd as tin- di-bt of the 
 Tompany. Separate property, of John Mc- 
 Kinne as well as the hridfje. was inelnded in 
 the mortgajie. It was stijiiilated. that upon the 
 Jiayinent of $40.(I(K». the iiropmy of M<Kinne 
 shonld be reh-ased, and upon tlie ]iayinent of 
 tlio remainiuf; .$r»().(IOO tlie bridp' should be re- 
 leased. Xow. whatever may ])e the general 
 rule, with respect to a deed which is void in 
 part, being void in the whole, it might well be 
 questioned whether we should 7iot rcganl these 
 stipidations as creating seiiarate mortgages for 
 distinct debts, though in<"luded in the same in- 
 stnunent. 
 
 If. as I have supposed, the .$r)().0(IO were the 
 debt of the Company, the defendant. Shultz. is 
 liable for the whole of it. and would be com- 
 l)elle(l to bring it into account, if the account 
 which he claims should be gone into. 
 
 But it is unneces.sary to pursue these topics. 
 The case has been an embarrassing one, from the 
 great ma.ss of irrelevant matters, evidence, and 
 documents, with which it has been incumbered, 
 
 *472 
 rather than from *any intrinsic difficulty with re- 
 gard to the merits. I hope that an endWill now 
 be put to this long protracted litigation. The 
 complainant is naturally disposed to think 
 that he must have suffered injustice from hav- 
 ing been deprived of projierty that was not only 
 matter of interest, but of pride and feeling, and 
 from having been harassed and pursued on 
 account of his responsibilities ft)r a Cfimpany, 
 to the failure of which he. as I am fully satis- 
 fied, (lid not at all contribute. But I believe he 
 is inclined to shift the blame from those to 
 whom it properly belongs, on account of some 
 recollection of early kindness, and to throw^ it 
 on others who have done nothing more than to 
 stand upon what they fairly regarded as their 
 just rights. 
 
 It is ordered and decreed, that the bill be dis- 
 mi.ssed. 
 
 The plaintiffs appealed, on the following 
 grounds: 
 
 1. Because the interest of Henry Sliultz in the 
 Augusta bridge has never been legally (lisi>ose(i 
 of, and is now subject, in the hands of his 
 assignee, to the claims of his creditors. 
 
 2. I'.ecause the alleged mortgage of the bridge 
 from John and Barna McKinue to the Bank of 
 the State of Georgia, was nuU and void under 
 
 the Act of the State of Georgia, referred to in 
 the decree. 
 
 '.i. l'.ecause the bridge was the partnership 
 proiK-rty of the Bridge Comiiany. and the mort- 
 gage before referred to, to secure the individual 
 debt of John and P.arna McKiiuie. being void 
 it yet remains partnership property, and liaide 
 for the i)artnership debts; and because the 
 creditors of Henry Shultz have the right to be 
 subrogated to the etpiity of the partnership 
 cri'ditcMs. whose debts have been satisfied by the 
 individual property of the said Ilenry Shultz. 
 
 4. Because the alleged decree of the Circuit 
 Court of the T'niti'd States, at Savannah, in the 
 ease of Christian Breithaupt. lli nry Shultz and 
 others v. The liank of thi' State of Georgia, is 
 of no validity, so far as the i>resent plaintiffs 
 are concerned, the same having been rendered 
 after the bill liad been dismissed, and after the 
 interest of Ilenry Slndtz, in the matters in con- 
 troversy, had been assigned and transferred to 
 his creditors. 
 
 ">. Because the Bank of the State of Georgia, 
 and the other defendants claiming under the 
 said Bank, can derive no title to the liridge un- 
 der the proceedings of tho S»ii>erior Court of 
 Richmond county. Georgia, as there never was 
 a sale of the bridge under order of that Court ; 
 and especially is this so in reference to the 
 South Carolina end of the said bridge. 
 
 G. Because the defendants bought with full 
 notice of the claims of the present plaintiffs. 
 
 7. Because the (Miancellor ought to have de- 
 creed that the bridge should be surrendered or 
 sold, and that the parties account for the in- 
 come. 
 
 8. Because the bridge, or at least one-half of 
 it, being within the jurisdiction of the Court, 
 
 *473 
 and the defendants having answered, the *Court 
 possessed ample jurisdiction of the cause, both 
 with respect to the bridge itself and the pro- 
 ceeds. 
 
 9. Because the Bank of the State of Georgia, 
 in any view, should be required to account for 
 the proceeds of the sale of the bridge, with in- 
 terest. 
 
 10. Because, upon the pleadings and the proof, 
 the plaintiffs were entitled to recover, and be- 
 cause the said decree is contrary to law and 
 equity and the- evidence. 
 
 Per Curiam. The Court concurs general- 
 ly in the views of the Chancellor, and the decree 
 is affirmed. 
 
 Harper, Joiixso.x and Dunkin, CO., con- 
 curring. 
 
 191
 
 APPENDIX 
 
 4 Rich. Eq. *475 
 
 ♦CHRISTOPHER WILLIMAN et al v 
 HENRY M. HOLMES et al. 
 
 (Charleston. Feb., 1850.) 
 [Trus^fs <©=3l.31.] 
 
 Thoro are three circumstances necessary to 
 the execution of a use by the statute of uses : 
 (1) A person seized to tlie use of some otlier 
 person; (2) A cestui que use, in esse; and (y,) 
 A use in esse in possession, remainder or re- 
 version. And Avherc the use is transformed 
 trom an equitable to a legal estate, the same 
 qualities conditions, and limitations that Avere 
 applicable to it as a use follow it in its new 
 condition as a legal estate. 
 
 r^^-'L^.?}*'-r^^Kt}}^ l''«ster v. Glover, 46 S. 
 *-. uoJ, ^-i b. E. 0(0. 
 
 .-^o^ilther cases, see Trusts. Cent. Dig 8S 
 l<o, 1<5V. ; Dec. Dig. <©=>131.] ^^ 
 
 [Trusts (©=51,31.] • 
 
 The statute does not execute a trust, where 
 there is some act or duty to be performed bv 
 the trustee necessary to the scheme of the trust 
 
 [Wills «@=>634.] 
 
 Where an estate is devisod to ono for life 
 witii i-rmamdor t.) such p.Tson.s as tiio tenant 
 tor UU\ or any other appointor shall direct and 
 appoint, and in default of such appointment 
 to a person or class of persons in esse, the re- 
 mainder IS vested notwithstanding th." interposi- 
 tion ot the power. The estate is vested in the 
 remanid(>r-men, subject to be divested bv the 
 execution of the power. 
 
 |Ed. Note.— rited iu Farrow y. Farrow 12 
 '>. (. 1(2: liilderback v. Kovce, 14 S C 541- 
 Minis V. Machlin. 53 S. C. 5). 30 S. E.' o.Ss' 
 lindal V. Xoal, 59 S. C. 15. 30 S. E. 1004- 
 Iluniphiey v. ('ampbell, 59 S. C. 43 47 37 S 
 ^^- 7^1:% Ketchin v. Rion. 68 S. C. 275,' 47 s' 
 E. .j(b. 
 
 For other ca.ses, see Wills. Cent. Dig § 149-> • 
 Dec. Dig. (S=>a34.] e, ts ^~t. - . 
 
 [Wills (©=>506.] 
 
 In a devise by the testator to his Might heir 
 
 at law the word 'heir' is iiomen collectivum, 
 
 and embraces all such persons as are entitled to 
 
 take as in cases of intestacy under the .statute 
 
 ot distributions; and the estate devised being 
 
 and which" couTd"noYb7pSo7medbrtlWn,st^^ same as that given by law, they will be 
 
 if the. legal estate pfissed from him under the Tisi^"^^"^"^ ^^ ^^^^°^ ^^ '^''^^^^ ^^^ ^ot by de- 
 
 operation of the statute ^* 
 
 operation of the statute 
 
 S ^p'-oo'.''V'v~^'*^'l.?,'? <"i-"s'it.,u V. Pringle, 3 
 to. L. 99, larr v. Gilbreath, 23 S. C. 512. 
 
 -,Zoi;_oi|'er c^n.ses. see Trusts. Cent. Dig. S8 
 1(0, l(.Dyo; Dec. Dig. <S=>131.] 
 
 [Trusjs <S=:=131.] 
 
 The conveyance or devise of an estate to 
 trustees, for the sole an.l separate use of a 
 married woman, is not such a trust as is execut- 
 ed by the statute. cxcluc 
 
 [Ed Xote.-For other cases, see Trusts, Cent. 
 Dig. § l(;ji/,; Dec. Dig. <©=>131.] 
 
 [Trusts <©=3l31.] 
 
 Where an estate is devised to a trustee in 
 
 mn'...- [ ^^'"^ ^^^^. "t*^' Ix^iiefit. and behoof of a 
 married woman for life, and after her death -for 
 
 nfcfif "'"' ^''''^h ''^"'^ behoof of a persxm, or 
 class of persons, who are in esse, and are sui 
 
 terV^r'J'^i"^ '''f' ^" ^'^ Si^-^^ to the trus- 
 wffl.^i.^ *^ '^*^"? ^^ ^^^ <^«t"te commensurate 
 ^ith the separate estate for life of the marriet 
 
 ^l! .^ l"? preserve ; and the statute forthwith 
 executes the use as to the residue in the re- 
 t^n'.'t'efi""''"' ^^^.eijuing whose interest the 
 trustee has no special duty to perform 
 
 18^S^>-^YQiT^Ar''i'P ^iowavd v. Henderson, 
 1^ «• & loi' .Y^-^?"- ^'- Craig. 36 S. C. 109 
 
 539^"64-S "e. 604.'''" ''■ ^''''''' ^- «• ^- ^•^«' 
 
 .^^\^}\\^^- cases, see Trusts, Cent. Dig. S§ 
 175, loVs; Dec. Dig. (®=>131.] ^^ 
 
 [Trusts <g=»131.] 
 
 And so where the legal estate given to the 
 trustee has not amplitude sufficient ?S enable 
 Inm to perform the duties of his trust, his e"il 
 evtS r^^ ^' '"^^^'S*^^ by implication to 'l.n 
 t?es'?f ??.??S''*' ^'"^ '^' ""^''''^ ^""^ ^"- 
 
 JEd. Note.— For other cases, see Wills Cent 
 Dig. §§ 1090-1099; Dec. Dig. <©=:.506 ] 
 
 *476 
 [Life Estates <©=>27.1 
 
 *Where an estate is sold by a decree in 
 equity, it is sufficient to make 'the title good 
 against all contingent remainders and interests 
 It the person who has the first estate of inheri- 
 taiioc IS a party before the Court ; he being re- 
 garded as the representative of all those con- 
 tingent interests that are dependent upon and 
 are to succeed his estate. And it would seem, 
 that, in a case where there was no vested estate 
 ot mhentanee. but an estate for life, with con- 
 tingent remainders and executory devises to 
 persons not in es.se, it would be sufficient if the 
 tenant for life were properly a party before 
 the Court (Bofil y. Bofil, 3 Rich. Eq. 1 [55 
 Am. Dec. 62(].) 
 
 q' n'^--,^'o*''rf'^;,'> i" Clyburn v. Reynolds, 31 
 o. U. llo, 9 S. E. 9(3. 
 
 .«^m "ther cases, see Life Estates. Cent. Dig. 
 §§ 49, 50; Dec. Dig. <@=>27.] 
 
 [Life Estates (S=>27.] 
 
 But where there is an estata for life with a 
 vested remainder to persons in esse, who are 
 witlun the .iunsdiction of the Court, a decree 
 tor a sale of the estate is not binding upon the 
 reiiiainder-men, and does not divest their right 
 unless they be parties. 
 
 .»'^*o'- .^"ooT'^'^^^'^ ^^ Moseley v. Hankinson, 
 77 .• ^- •"^-' ^ioore v. Scott, 66 S. C 292 
 44 S. E. (3(. ■ ' 
 
 For other cases, see Life Estates, Cent. Dig 
 § 49; Dec. Dig. <©=»27.] 
 
 [Trusts <S=>194.] 
 
 In cases of trust, where the trustee is seized 
 of tlie legal estate in fee and is a party before 
 the Court, there is a greater facility in giving 
 a perfect title to the purchaser, although all 
 the parties in interest are not before the Court 
 
 Trich!eq.-13 ''' '''"' '°'''' ^""^ ^^Y-NUMBER iu all Key-Numbered Digests and Inde.xes 
 
 19c
 
 *476 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 inasmuch as the decree for sale operates upon 
 the fee simple in the trustee, and passes that 
 to the purchaser discharged of tl^e equities of 
 the cestui que trusts. 
 
 [Ed. Note.— For other cases, see Trusts, Cent. 
 Dig. S 249; Dec. Dig. <©=>194.1 
 
 [Partition (©==385.] 
 
 Where the Court of Equity, in the exercise 
 of its jurisdiction, decreed the sale of an estate, 
 and the title proved defective because some of 
 the persons who were tenants were not parties 
 to the proceeding ; and the purchaser supposing 
 that he had bought the entire estate greatly im- 
 proved the value of some portions of the es- 
 tate (water lots,) it was ordered, that the parti- 
 tion should be so made as to give to the pur- 
 chaser the part of the estate so improved, with- 
 out accounting for the improvements, the im- 
 jiroved parts not being greater than his rightful 
 share when he bought, and it being shown to 
 the Court that such partition could be made 
 without injury to the other parties in inter- 
 est, (a) 
 
 [Ed. Note.— Cited in Annely v. De Saussure, 
 12 S. C. 520; Scaife v. Thomson, 15 S. C. 
 868; Trapier v. Waldo, 16 S. C. 282; Annely 
 V. De Saussure, 17 S. C. 392, 393. 395; In re 
 Covin's Estate, 20 S. C. 475; Lumb v. Pinck- 
 nev. 21 S. C. 475; Buck, Hefflebower & Neer 
 v. Martin, 21 S. C. 592, 593, 53 Am. Rep. 702 ; 
 .Johnson v. Pelot, 24 S. C. 265, 58 Am. Kep. 
 253; Hall v. Boatwright. 58 S. C. 548, 36 S. 
 E. 1001, 79 Am. St. Rep. 864. 
 
 For other cases, see Partition, Cent. Dig. § 
 238; Dec. Dig. (©=85.] 
 
 I This case is also cited in Humphrey v. Camp- 
 bell, 59 S. C. 39, 37 S. E. 26, and distin- 
 guished therefrom.] 
 
 *477 
 *Before Dargan, Ch., at Charleston, Feb- 
 ruary, 1850. 
 
 (a) Note by his Honor. The question, wheth- 
 er compensation is to be allowed to a tendht in 
 common, who has made improvements upon the 
 common estate, as against his co-tenants, has 
 been attended with much difficulty. Not to al- 
 low it, where the improvements are valuable, 
 in many cases is highly inequitable ; yet no 
 safe rule of universal application can be laid 
 down upon the subject. For in some cases, 
 though the improvements may add to the per- 
 manent value of the estate, it might be unde- 
 sii-able, inconvenient, and even ruinous, for the 
 co-tenant, who has not concurred in the im- 
 provements, to meet his share of the expense. 
 
 That compensation for such improvements in 
 ordinary cases, will not be allowed, may be re- 
 garded as the settled law of South Carolina. 
 Thompson v. Bostick, McM. Eq. 75 ; Thurston 
 v. Dickinson, 2 Rich. Eq. 317 [46 Am. Dec. 56]. 
 
 But the obvious hardship of depriving the 
 tenant, who has made the improvements, of any 
 benefit from his expenditures, and of thi'owiug 
 the value of the improvements into the common 
 estate for partition, will induce the Court so 
 to modify its decree as to let the improving 
 tenant have the benefit of his improvements, 
 wherever it can be done without injury to his 
 co-tenant. The high equity to be allowed com- 
 pensation for permanent and valuable improve- 
 ments should prevail, wherever it can be done 
 consistently with the rights of the other parties. 
 
 "In suits in equity for partition," says Judge 
 Story, (1 Story Eq. § 656,) "various other equi- 
 table rights, claims and adjustments will be 
 
 *477 
 made, which are *beyond the reach of Courts of 
 Law. Thus, if improvements have been made 
 by one tenant in common, a suitable compensa- 
 tion will be made him upon the partition ; or 
 the property on which the improvements have 
 
 Christoplicr Willinian, by his will, dated 
 December 26, 181:!, inter alia, devised and be- 
 queathed as follows: 
 
 "I give, devise, and beiiueath unto Mary 
 Peters, (Gilbert Davidson and Margaret Be- 
 thune, and to their heirs and assigns for- 
 ever, all those two houses and lots, situate 
 on the east side of Meeting sti-eet, which I 
 lately bought from Mrs. Gregorie; also all 
 that wharf, situate on South Bay, and the 
 land attached to the same ; also my lands at 
 the head of Tradd street; also all that 
 piece or lot of land, known in the plan of the 
 Grove Tract as No. 2, containing about twen- 
 ty acres of high land and about the same 
 quantity of marsh ; also all those two plan- 
 tations on Combahee, known by the names 
 of Boston Bottom and Walnut Hill ; also 
 one moiety or half of all those two islands, 
 situate between the Combahee and Bull riv- 
 ers, both known by the name of Willinian Is- 
 lands, and one undivided moiety of thirteen 
 luindred acres of marsh land adjoining them ; 
 also sixty negroes, &c., &c. In trust for the 
 sole use, behoof and benefit of my daughter, 
 Eliza Davidson, the wife of Gilbert David- 
 son, for and during the term of her natural 
 life, and from and inunediately after the 
 
 *478 
 death *of my said daughter, in trust for the 
 sole use, benefit and behoof of the said Gil- 
 bert Davidson, should he survive my said 
 
 been made assigned to him." The same au- 
 thor, (1 Vol. § 655,) says: "where one tenant 
 in common supposing himself to be legally enti- 
 tled to the whole premises, has erected valuable 
 buildings thereon, he will be entitled to an 
 equitable partition of the premises, so as to 
 give him the benefit of his improvements." 
 Town V. Needham, 3 Paige, 546, 555. 
 
 "Courts of Equity will not only take care, 
 that the parties have an equal share, but they 
 will assign to the parties respectively such parts 
 of the estate as would best accommodate them, 
 and be of most value to them with reference 
 to their respective situations in relation to the 
 property before partition." 1 Story Eq. § 655. 
 
 The dispo.sition of the Court is always to give 
 the tenant making the improvements the benefit 
 thereof, as far as is consistent with the equity 
 of his co-tenants. In Hancock v. Day, McM. 
 Eq. 298, it was held, that the occupying tenant 
 of a tenancy in common is not bound to account 
 for the rent of land rendered productive by his 
 own labor. This case was decided on the au- 
 thority of the preceding cases of Thompson v. 
 Bostick, and Kerr v. Robertson, McM. Eq. 475. 
 In the case last mentioned, it was held, that 
 one tenant in common was not bound to pay 
 rent for land that he had himself cleared and 
 reduced to a state of cultivation. See Lyles v. 
 Lvles, 1 Hill, Eq. 86 and Volentine v. Johnson, 
 lb. 49. 
 
 *478 
 
 *Thus, it seems to be clearly settled, that the 
 tenant in possession, who has made improve- 
 ments, is entitled to the whole of the profits re- 
 sulting from such improvements, during the 
 continuance of the tenancy in common. And it 
 would seem to be equally clear, that where the 
 tenant who has made improvements, has not 
 improved more than his share, and that share 
 with the improvements can be set apart to him 
 in the partition without injury to the rights of 
 his co-tenants, considered in reference to the 
 
 194 
 
 <g=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 WILIJMAN V. HOLMES . 
 
 •480 
 
 (laughtor, for aud during the term uf his nat- 
 ural life, and from and immediately after 
 the death of the survivor of them, then in 
 trust for the sole use. benefit and behoof of 
 such of my children and grand-children, as 
 Die said Eliza Davidson shall, by her last 
 will and testament, or by any deed under 
 hand and seal executetl in the presence of 
 three or more credible witnesses, direct, lim- 
 it and ai»i)oint, and in default of such direc- 
 tion, limitation and appointment, then in 
 trust for the sole use, benetit aud behoof of 
 my right heir at law." 
 
 DAUGAX, Ch. The very full and elab- 
 orately prei)ared statement of the facts, 
 which has been furnished, and which I adopt, 
 renders It entirely superfluous for me to 
 preface my decree with the usual prelimi- 
 nary narrative. I, therefore, proceed at 
 once to the consideration of the questions 
 that are made in the pleadings, and that have 
 been discussed in the argument. 
 
 The great question of the case, and an in- 
 teresting aud important one it is in any point 
 of view, is whether the .sale made under the 
 decree of this Court, in the suit of Eliza 
 Davidson v. Mary Peters and others, is 
 valid against the remainder-men, who are 
 the complainants in this bill, und are seek- 
 ing to have that sale vacated so far as it af- 
 fects their rights. In the threshhold, as it 
 were, an important preliminary problem pre- 
 sents itself, which it is necessary to solve. 
 In my judgment, much depends upon the 
 
 *479 
 solution *of this question ; which arises ujv 
 on the construction of Christopher Willi- 
 man's will. Does the devise to Eliza David- 
 son create a trust estate? Does the statute 
 of uses execute the trust, and transfer the 
 legal title to Eliza Davidson as to the life 
 estate, on the death of the testator? And 
 again, does the statute of uses execute the 
 use as to the remainder-men, and transfer 
 the legal estate in the remainder to them, 
 before the termination of the precedent life 
 estate? 
 
 If Eliza Davidson, had been a feme sole, 
 there would have been specious reasons for 
 the opinion, that the statute would have 
 executed the uses on the death of the testa- 
 tor, and that she would forthwith have been 
 invested with the legal title, discharged of 
 the trust. But she was at that time the 
 wife of Gilbert Davidson. And the form 
 
 state of the property as it originally stood, or 
 as it would liavc stood, hail no sucli improve- 
 ments been made, tiie partition ought so to be 
 made, as to give the tenant, who has spent his 
 money, that part of the estate in which the 
 expenditures havo been made. 
 
 In the case to wliicli these remarks are at- 
 tached as a note, the oeciipyiiig tenant had 
 tlie additional ecpiity of liavinjj; purchased bona 
 tide, for a valuable consideration, the fee, and 
 was ignorant, when making tlie improvements, 
 of any outstanding claim of thti plaintiffs 
 against Lim for a partition. 
 
 and language of the devise Is peculiarly 
 adapted for the creation of a separate es- 
 tate in trust for the benefit of a married 
 woman; and one. which the potential magic 
 <»f the .statute would fail to destroy. The 
 e.state is given to trustees, to whom the le- 
 gal estate passes in the first instam-e. If it 
 l>e such a trust estate as the statute would 
 execute, it passes through and out of the 
 trnste«'S. eo instanti, and vests in the cestui 
 <pie trusts. But if there Ite any thing for the 
 trustees to do; if there be a duty imposed 
 ui)on them in connexion with the trust, for the 
 performance of which it is necessary that the 
 trustees should remain seized of the legal es- 
 tate, the statute then does not execute the 
 use; but the legal estate abides with them 
 until the executory trusts are performed. 
 After the execution of the trusts, the title 
 liasses away from them, silently, and by 
 operation of law. A trust to preserve the 
 separate estate of a married wt)man. is of 
 tliat class of trusts, which the statute of 
 uses does not execute. The words of this 
 devise, ("in trust for the .sole use, l)enefit 
 and behoof." &c.) are technically expres- 
 sive, (if any words in relation to such a de- 
 vise can be considered as technical.) of an 
 intention to create a separate estate in Eliza 
 Davidson. 
 
 It has been urged with much ingenuity 
 and force, that notwitlistanding the expres- 
 sive form of the language, it Is yet still a 
 
 *480 
 *(luestion of intention, whether the testator 
 really did mean to create a separate estate 
 in Eliza Davidson. After the death of his 
 daugliter. Eliza Davidson, he gave the es- 
 tate •'In trust for the sole use. benefit and 
 behoof of Gilbert Davidson, should he .sur- 
 vive."' &c. On the death of the survivor, 
 the estate was to be held in "trust for the 
 sole use, benefit and behoof of such of my 
 children or grand-children, as the said Eliza 
 Davidson shall by her last will and testa- 
 ment, or by any deed under her hand and 
 seal, executed in the presence of three or 
 more credible witnesses, limit, direct and 
 appoint, and in default of such direction, 
 linutation and appointment, then in trust 
 for the sole use. benefit and behoof of my 
 riglit heir." It is contended, that the testa- 
 tor could not have intended to create sepa- 
 rate estates in all these renminders, and as 
 he used precisely the same form of lan- 
 guage in reference to them, that he did in 
 the devise to Eliza David.son, he could 
 not have intended to create a sejiarate es- 
 tate in her. The argument is ingeni<ni.s. but 
 its fallacy consists in assuming, that the tes- 
 tator did not intend what he has expressed. 
 He may have been ignorant that the law 
 does not permit indefeasible estates to be 
 enjoyed by persons who are capable of act- 
 ing .sui juris. He may have supposed, that 
 among his children and grand-children, or 
 amoug his heirs at law, there would be fe- 
 
 195
 
 *480 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 males and feme coverts, who would be pro- 
 tected in the enjoyment of a separate es- 
 tate; and in reference to the estate which 
 he gave to Gilbert Davidson, as well as that 
 which he gave to his children, &c. he may 
 have intended to riiake it inalienable, and 
 not subject to debts. He may have been 
 ignorant of his want of power to stamp 
 such attributes upon an estate. He could 
 not have used the word "sole" as the syno- 
 nym of "several," for two of the contingent 
 interests were given to a class. His meaning 
 in these subsequent dispositions of the es- 
 tate may be ambiguous ; but so appropriate 
 is the language of the will to the creation of 
 a separate estate in Mrs. Davidson, that its 
 construction ought not to be affected, by the 
 uncertainty of his meaning, when he em- 
 ploys the same forms of expression in other 
 
 *481 
 and subsequent parts of his *will. He 
 seems to have intended to sow separate es- 
 tates broad cast through his will ; and if 
 some of them have fallen upon stoney 
 ground, and have proved ineffectual, and 
 his language in relation to them becomes 
 ambiguous or unmeaning, it will not pre- 
 vent the separate estate in favor of Eliza 
 Davidson from taking effect, where not only 
 is the language appropriate, but the sex, 
 relations and circumstances of the devisee 
 are propitious to the creation and existence 
 of such an estate The will then created a 
 trust estate for the sole use of Eliza David- 
 son for her life. &c., which the statute of 
 uses did not execute. 
 
 The legal estate devised to the trustees 
 was in fee. The use was limited to Eliza 
 Davidson for life, remainder to her hus- 
 band, Gilbert Davidson, if he was the sur- 
 vivor, for life, remainder to such of the 
 children or grand-children of the testator as 
 Eliza Davidson should by will appoint and 
 in default of such appointment, remainder 
 to the testator's right heirs. If the estate 
 had been given in trust, for the sole use of 
 Eliza Davidson for life, and at her death to 
 the use of, or in trust for some ascertained 
 individual, and on an event that was cer- 
 tain, it would certainly be a vested remain- 
 der. But for the interposition of the power 
 of appointment, there could have been no 
 doubt that the remainder to the right heirs 
 of the testator was vested, and not con- 
 tingent. Then, the order of succession in the 
 enjoyment of the estate, prescribed by the 
 will, would have been thus: to Eliza David- 
 son for life; remainder at her death to Gil- 
 bert Davidson, if he was then living; at his 
 death, or at her death, if she was the surviv- 
 or, remainder to the right heirs of the testa- 
 tor. It may be doubtful whether this last is 
 not a reversion instead of a remainder. If, by 
 the words his "right heir," he means statu- 
 tory heirs, (as I think he does,) it would 
 be a devise of this residuum of the estate 
 to the same persons who would be entitled 
 
 196 
 
 to it by law, in case of intestacy. The rule 
 is, that if a testator devises his lands to his 
 heirs at law, without any restriction or 
 modification as to the enjoyment or posses- 
 sion, they will take by descent rather than 
 by the devise. But it will be found inuua- 
 terial in the result of this case, whether the 
 
 *482 
 limitation *to the right heirs of the testa- 
 tor will operate as a reversion or remainder. 
 I will, for the present, speak of it as a re- 
 mainder. 
 
 Considering it as a remainder, it is valid; 
 for it was made to depend upon an event 
 that must happen within the period pre- 
 scribed against remoteness. If the interpo- 
 sition of the power did not prevent its vest- 
 ing, then it was also a vested remainder ; 
 for it was upon an event certain, (the death 
 of the survivor of Eliza and Gilbert David- 
 son,) and to persons in esse — the right heirs 
 of the testator, who existed at liis death as 
 a class. 
 
 Regarding the estate given to the right 
 heirs as a remainder, I am of the opinion 
 that it was vested and not contingent, not- 
 withstanding the power to Eliza Davidson 
 to appoint among the testator's children or 
 grand-children. Tlie fee vested directly in 
 the right heirs, subject to be divested by 
 the exercise of the power of appointment. 
 This is an abstruse branch of the law of 
 real estate. Some of the rules are exceed- 
 ingly artificial and finely spun, and some 
 very subtle distinctions have prevailed on 
 the subject. A question like this must de- 
 pend mainly upon the authorities. On a 
 reference to these, it will be found that 
 there is some conflict; or rather, that there 
 has been a change in the course of the Eng- 
 lish decisions. According to the second res- 
 olution in Lovies' case, (10 Rep. 78,) where 
 the donor by an indenture limited to him- 
 self an estate for life, with the power to 
 lease, &c., and to the use of any persons to 
 whom he should devise any of the estate, 
 with a remaijider over in tail, &c., this, and 
 all the subsequent remainders were held to 
 be contingent and not to be executed till the 
 death of the donor. 
 
 In Walpole v. Lord Conway, cited in the 
 argument of Doe v. Martin, (4 Term. Rep. 
 57,) from Barnardiston's Rep. in Ch. 153, 
 (and commented on by the Chief Justice,) 
 money was directed to be laid out in lands, 
 to be settled to the use of Lord Conway for 
 life, remainder to his intended wife for life, 
 remainder in trust for such child or chil- 
 dren, and for such estates absolutely or con- 
 ditionally, and in such proportions as Francis 
 Lord Conway should appoint, and in default 
 of such appointment, to the use of all and 
 
 *483 
 ♦every the daughters, younger sons, and 
 the heirs of the bodies, &c. One of the 
 questions which arose was whether a son 
 of one of the daughters, who was dead, was
 
 WILLIMAN V. HOLMES 
 
 »485 
 
 entitled to his mother';? share. And that | 
 dei>ended on the question whether the re- 
 mainders to the dauKliters were coiitin{,'ent, 
 or vested and liable t<> lie divested Ity the 
 appointment. Lord Hardwieke held the re- 
 mainders to be eontinKent. He said that 
 "Lord Conway had a power durinj; all his 
 life time to limit the estate anions his 
 daughters and younger sons in sueh manner 
 as lie thought proper, and therefore during 
 all that time the remainder over to those 
 children, in default of such ai»pointment. 
 must have heen contingent." 
 
 But in Cunningham v. Moody, 1 Ves. Sen. 
 174, Lord Hardwieke held a dittVrent opin- 
 ion. The analogy of that case to the one I 
 am now considering, is very strong. There 
 money having been agreed, on a marriage 
 contract, to he laid out in the purchase of 
 lands to the use of the husband and wife for 
 life, remainder to the children in such pro- 
 l)ortions as the parents .should appoint, and 
 111 default of such appointment, to all the 
 children e(iually. as tenants in common and 
 not as joint tenants ; the Lord Chancellor 
 decided that the remainders were vested. 
 After saying that the fee was not in abey- 
 ance, he observed: "Nor does the power of 
 appointment make any alteration therein; 
 for tne only effect thereof is that the fee 
 which was vested, was thereby suliject to be 
 divested if the whole were appointed." Tliis 
 case was adjudged by I>ord Hardwieke upon 
 great consideration. And Lord Kenyon ol> 
 served in I)t)e v. Martin, that the oi)inion of 
 his Lordship "was iieculiarly deserving of at- 
 tention, because wlien the latter case was 
 discussed, the former one of Walpole v. Con- 
 way, where he had intimated a different opin- 
 ion, was strongly pressed upon him; because, 
 too, he decided the last case at a time when 
 he had the assistance of some of the most 
 eminent lawyers who ever attended the bar 
 of that Court." 
 
 Doe v. Martin, 4 T. R. 38. also furnishes a 
 striking parallel. There, on a marriage set- 
 tlement, lands were conveyed in trust to the 
 use of the wife for life, remainder to tlie use 
 
 *484 
 of the husband *for life, remainder to the 
 use of all and every the children of the mar- 
 riage, or such of them, and for such estates, 
 as the husband and wife should appoint, and 
 for the want of such appointment, to the use 
 of all and every the child or children equal- 
 ly, if more than one, as tenants in common, 
 and if only one, then to such only child, his 
 or her heirs and assigns forever; remainder 
 over. The deed of marriage settlement also 
 contained a i)Ower authorizing the settlors 
 to revoke the uses, and to .>^ell and convey the 
 lands. &c. The Chief Justice, after an elal)o- 
 rate argument, in which the whole of the 
 previous decisions, passed under review, fol- 
 lowing the decision in Cunningham v. Mo(Mly. 
 held, that the remainders to the children 
 were vested remainders in each child when 
 
 he or she was born, subject, however, to be 
 divested by the parents exercising the power 
 of appointment. Maundrell v. Maundrell, 7 
 Ves. 'tVu: Smith v. Lord Camelford. "J Ves. 
 jun. (j!»S; I'Varne Con. Keni. '_'•_*»'.. '2:v.\: Sug. 
 I'ow. ch. 2. 4; Lord liaymond. - vol. 1150; 
 Madoc v. Jackson. 1' Hro. C. C. 5KS ; 10 Ves. 
 jun. LMJo. The coniluslon at which I arrive 
 is, that if the right heirs of the te.stator 
 were entitled to take as remaindermen, and 
 not t)y reversion, the remainder was vested, 
 subject to have been divested Ijy the appoint- 
 ment; which, however, as to the proi)erty in 
 question was not executed. 
 
 The next question which I will consider, is 
 whether the statute of uses has executed the 
 uses as to the estate, which the right heirs 
 of the testator took in the property under 
 the provisions of the will. My conclusion 
 upon the question last considered was but 
 a step to my conclusion upon this. I have 
 held, that if they were entitled as remainder- 
 men, the remainder was vested: And my 
 opinion further is. that whether they take by 
 way of vested remainder, or reversion, the 
 statute executes the uses as to them, leaving 
 in the trustees a le-ral estate only for the 
 life of Eliza Davidson. According to this 
 view, on the death of the testator, the trus- 
 tees became seized permanently of the legal 
 e."<tate for the life oi Mrs. Davidson, in trust 
 for her sole use. The statute forthwith ex- 
 ecuted the use as to the reniaiiuler-men or 
 
 *485 
 rever*sioners. (as the case may l)e,) who at 
 once became invested with the legal estate 
 in fee, by way of vested remainder, to take 
 effect in possession on the death of Mrs. 
 Davidson. 
 
 The ."Statute of uses by its express terms 
 embraces estates in remainder and reversion. 
 It declares "that in every such case, all and 
 every such person or per.sons, iScc. that have 
 or shall have any such u e, contidence or trust 
 in fee simple, fee tail, for term of life, or 
 for years, or otherwise, or any use. conti- 
 dence or trust in remainder or reverter, shall 
 from thenceforth stand and be si-ized. deem- 
 ed and ailjudged in lawful .^Jeisin estate and 
 possession of. and in the same houses, castles, 
 manor lands. &c., remainders, reversions," 
 &c.. as the grantees to uses. 
 
 "There are three circumstances necessary 
 to the execution of a use by this statute: 
 1st. A person seized to the use of some other 
 person; I'd. A cestui que use, in esse; and 
 'Ail. A use in esse in possession, remainder or 
 reversion."' 1 Crui.<:e Dig. 412, 1 Hep. 12(3. 
 When the use is transformed from an eq- 
 uitable to a legal estate, the same (|ualities, 
 conditions and limitations, which were apidi- 
 calde to it as a use. follow it in its new con- 
 dition as a legal estate. So that the execu- 
 tion of the uses in this case, in the right heirs 
 of the testator, could not defeat the exe<utiou 
 of the power of :ii»]iointnient. if Mrs. David- 
 son had thought proper to exercise it. 
 
 197
 
 M85 
 
 4 RICHARDSON'S EQUIXY REPORTS 
 
 1 have already shown that the legal estate 
 remained in the trustees for the life of Mrs. 
 Davidson, because it was necessary (to pre- 
 serve her separate estate) that they should 
 be seized of the legal estate for her life. The 
 statute will not permit the ti'ustees to take 
 a larger legal estate than is necessary to the 
 performance of the executory trusts imposed 
 upon them by the will. If a larger estate 
 than is necessary for this purpose is given 
 to them, it will be cut down by the statute, 
 and shaped to meet the exigencies of the case. 
 In Doe V. Simpson, 5 East, 171, Lord Ellen- 
 borough said "that where the purposes of a 
 trust can be answered by a less estate than 
 a fee simple, a greater interest than is sutti- 
 cieut to answer such purpose shall not pass 
 
 *486 
 to them ; but that *the uses in remainder, 
 limited on such lesser estate so given to 
 them, shall be executed by the statute." In 
 Curtis V. I'rice, 12 Ves. 89, an estate in fee 
 to the trustees was cut down to an estate 
 per autre vie, on the ground that an estate 
 of that duration was sutticient for the pur- 
 poses to be answered. Shapland v. Smith, 1 
 Bro. C. C. 75; Uoodtitle v. Whitby, 1 Burr. 
 229; Edwards v. Symonds, 6 Taun. 213; Doe 
 v. Hicks, 7 T. R. 433; Nash v. Coates, 3 
 Barn. & Adolph. 8.39. 
 
 So where an estate in fee is not given to 
 the trustees, and such an estate is necessary 
 to the execution of the trusts, their ehitate 
 will be enlarged by implication to the extent 
 necessary. In short, it is an established rule 
 that trustees shall hold legal estates com- 
 mensurate only with the necessities of the 
 trusts. If the estate given to them is defi- 
 cient, it will be enlarged by implication. If 
 in excess, it will be cut down by the opera- 
 tion of the statute of uses, and such excess 
 will pass to those in remainder. 
 
 On looking into the will of this testator. 
 I can discover no duties that were to be per- 
 formed by the trustees, rendering it neces- 
 sary for the legal estate to remain in them, be- 
 yond that of preserving the separate estate of 
 Mrs. Davidson. It was certainly not necessary 
 as to the remainder to Gilbert Davidson, nor 
 as to the remainder or reversion to the right 
 heirs of the testator. These were trusts that 
 were executed by the statute, leaving, as I 
 have before said, a legal estate in the trustees 
 only for the life of Mrs. Davidson. 
 
 Such being the state of the title, and Eliza 
 Davidson, the wife of Gilbert Davidson, be- 
 ing entitled to an equitable and separate es- 
 tate in this property for life, and her trustees 
 being rseized of a legal estate commensurate 
 with her equitable interest, in conjunction 
 with her husband, who was one of the trus- 
 tees, on the 21st day of November, 1817, filed 
 her bill in this Court against Mary Peters 
 and Margaret Bethune, the other trustees. 
 The bill described the estate, recited the 
 devises of the will and the limitations, charg- 
 ed that the estate in its then existing form 
 
 198 
 
 was unproductive, prayed a sale of a portion 
 
 *487 
 of the estate, and a change *of investment, 
 and alleged that such sale and change of in- 
 vestment would be conducive to the interests 
 of tho.se entitled in remainder, as well as of 
 the life tenant. 
 
 On the same day, Mary Peters and Mar- 
 garet Bethune filed their joint answer, in 
 which Gilbert Davidson, although a com- 
 plainant, joined, and afiixed his signature 
 thereto. They admit the title as stated in 
 the bill, and the unproductiveness of the 
 property. They also state their belief, that 
 if it was sold and the proceeds invested in 
 other property, it would be advantageous to 
 the complainant, and not injurious to those 
 interested in the estate of Ch. Williman. 
 And they gave their assent to the sale. The 
 case was referred to the commissioner, (Th. 
 Hunt,) who, on the 22d November, 1817, filed 
 his report, reconnuending the sale prayed for 
 in the bill, and stating it as his opinion that 
 the sale would be for the benefit of the com- 
 plainants, and of those interested in the re- 
 version, or remainder of the estate of Ch. 
 Williman. On the same day there was a de- 
 cretal order confirming the report, and di- 
 recting a sale by the commissioner on such 
 terms, and at such time or times, at public 
 or private sale, as he, by and with the ad- 
 vice and consent of the trustees of the com- 
 plainant, may think most proper and advan- 
 tageous to the trust estate. In pursuance of 
 this order the property was sold, and con- 
 veyed by the commissioner, and this property 
 so sold and conveyed, is the subject of con- 
 troversy in this suit. The title of all the de- 
 fendants has been thence derived. On the 
 17tli November, 1820, the commissioner made 
 a report of sales, which was on the same 
 day confirmed. And again on the 19th Feb- 
 ruary, 1821, he made a report of sales, which 
 was also confirmed. The lust report was a 
 repetition in part of the first. 
 
 The defendants also inti'oduced in evidence 
 another bill in equity, and the proceedings 
 under it ; in which Eliza Davidson was the 
 complainant. In her first bill, she had stat- 
 ed that her trustees had purchased for her 
 from Henry Middleton and Henry Middleton 
 Rutledge, a tract of land called Jenny's plan- 
 tation, for the sum of $8,000, and that they 
 
 *488 
 had given their own bond *for the purchase 
 money, and a mortgage of the premises. One 
 of the objects of the bill was to obtain the 
 funds to pay for the Jenny plantation, and to 
 confirm the purchase thereof for the trust 
 estate, and to invest the surplus in more 
 productive property. The bill so prayed, and 
 the order of the Court was in conformity 
 with the prayer of the bill. The debt con- 
 tracted for Jenny's plantation was soon aft- 
 erwards paid, it is presumed, with tlie trust 
 funds. Jenny's liantation thus became sub- 
 stituted propert:> of the trust estate.
 
 Wir.LTMAX V. HOLMES 
 
 ♦490 
 
 Oil the ITtli Novenibor, 1S2:5. Eli/.u David- 
 sdii fili'd lier liill for the sale of the Jenny 
 plantation, and (jtlier portions of the trust 
 estate, not enil»ra<ed in tlie former order of 
 .sale, on the aile;,'ed j;roiind that the property 
 was unproductive. And she prayed that the 
 l»roceeds of the sale lui^^ht he invested in 
 public or private .securities, yielding a cer- 
 tain income, and subject to the trusts of the 
 will. Her husband, (Jilbert l»avid.son, was 
 then dead. She made the two surviving 
 trustees, Mary Peters and .Mariraret liethune, 
 defendants, and also .Maria J. Williman and 
 Harriet K. Williman. dauj,'hters of the com- 
 plainant, Cli. Williman, and Klizabetli D. 
 J'.etlume. dau;:hter of the trustee. Marj,'aret 
 r.ethune. These last named defendants were 
 infants, and the jji'juul-tlau.iihters of the tes- 
 tator. They belonj^ed to that class of per- 
 sons, in whose behalf the power of appoint- 
 ment miglit be exercised, and this was the 
 only interest they had in the estate. Harriet 
 K. Williman is the same person with the 
 complainant, Harriet Ashby. On the ISth 
 Xovember, isi';',. by an order of the Court, 
 Ch. Williman was ai)poiiite(l the iiuardian 
 ad litem of Maria J. and Harriet K. Willi- 
 man. and Marijaret Bethune was appointed 
 the guardian ad litem of l':iizai)eth 1 >. IJeth- 
 une. 
 
 On the lOth November, 1823, the trustees 
 answered, admitting the facts stated in the 
 bill, and assenting to the prayer thereof. 
 And the infants, by their guardians ad litem, 
 answered, admitting their belief of the facts, 
 and submitting their rights to the protection 
 of the Court. The answers of the infants 
 were Informal, to the extent of wanting the 
 
 *489 
 signature of the guardians. There *was a 
 reference to the commissioner, and a report 
 by him. recommending a sale, followed by a 
 decree of the Court, contirming the repi>rt, 
 and ordering a sale of the property. By the 
 terms of the decree, the proceeds were to be 
 paid to Mrs. Davidson and the two trustees, 
 to be by them invested in well secured and 
 productive private or public securities, sub- 
 .iect to the uses and trusts of the will. By 
 virtue of this decree, the property was sold. 
 But the title of none of the property sold 
 under these last proceedings is brought in 
 (|uestion in the case now before me. The 
 last bill contained a recital of the proceed- 
 ings under the first, and the (udy object 
 which the def(>ndants had in view, in the 
 introduction of this evidence, was to bring 
 home to the complainant a knowledge of the 
 former ])roceedings, and of the sale: and to 
 deduce therefrom, and from his acquiescence, 
 an implied sanction and coufirmation of the 
 same. 
 
 Kliza Davidson, in tlic form jircscribed by 
 the will, executed her puwi-r of aiipointment 
 in regard to various jmrtions of the estate. 
 The power was properly executed, and in be- 
 half of persons falling within the class, to 
 
 which its exercise was restricted. She thus 
 gave the Meeting street lots and the South 
 Bay wharf to Mrs. Ashby. and the (Jrove 
 plantation to .Mrs. CJracie. Under the power 
 given to her in the codicil, she sold and con- 
 ve.ved one-half of Willinuurs islands to Na- 
 thainel Ileyward. The title to this portion 
 of th«> estate is not involved in the issues of 
 this bill. The lands attached to South Bay 
 wharf sold to I. K. Holmes and Wm. Drayton, 
 the lands at the head of Tradd street sold to 
 W. A. Hiilmes, the plantations called Boston 
 Bottom and Walnut Hills sold to Wm. Mason 
 Smith, are claimed from the parties defend- 
 ant, in possession respectively of said real 
 estate. 
 
 The testator left tive children, who were 
 his heirs at law at his death. nain«'ly: Eliza 
 Davidsctn, the devisee for life of this prop- 
 erty. Mary I'eters and Margaret Bethune. 
 the trustt'es. Harriet D. Jough. who survived 
 her husband and left an oidy .son and heir, 
 Wm. F. D. .lough, who is made a ilefendant. 
 and Ch. Williman. the complainant. The 
 
 *490 
 latter has conveyed all his right and *title 
 to a i)ortion of the itroperty in tlispute to 
 the late James Ashby. whose widow and ad- 
 ministratrix. Harriet Ashby. and his children. 
 an> joined as c(nnplainaiits in the bill. The 
 comitlainants claim, that by the terms of the 
 will, they are entitled to the whole of the 
 property, the same being linuted in default 
 of the execution of the power "to the right 
 heir" of the testator, and failing in that 
 claim, they pray a partition, and to be put 
 in pi>ssession of one-tifth part of the estate, 
 as representing one of the tive heirs of the 
 testator. 
 
 I have thus grouped together in a sum- 
 mary, and I trust sulliciently perspicuous 
 manner, the material facts bearing upon the 
 (luestion. whether the complainants' rights 
 have been affected by tlie sale made under 
 the decree of the Court, in the prf)ceedings 
 which I have described. The objection to 
 the validity of the sale is easily stated; it is. 
 that the complainant. Williman, and those 
 claiming under him, are not bound by the 
 decree, because he was not a [tarty to the 
 suit. 
 
 My judgment upon this (lui-stion follows 
 inductively from my decision upon the (jues- 
 tions previously discussed. Had I considered 
 that the trustee*; were seized of the legal es- 
 tate in fee— that the statute had not execut- 
 t'd the uses as to the remainder-men. and cut 
 down the legal estate given by the will to 
 the trustees to a mere estate for the life of 
 Eliza Davidson, the decree would have been 
 for the defendants. In that ca.se I should 
 have considered the sale valid, and to have 
 carried the fee to tlie iturchasers. But as 
 it is. I think the sale was only operative to 
 the extent of conveying the life estate of 
 Mrs. Davidson. If the trustees had been 
 seized of the legal estate in fee, and merely 
 
 i9y
 
 *4flO 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 on their own motion had sold and conveyed 
 the same, the purchaser would have taken 
 the fee. If the purchaser had bought with- 
 out notice of the equity, he would have taken 
 the estate discharged of the trust. If with 
 notice, a trust would be implied against him 
 in favor of the cestui que trusts. If the trus- 
 tees had been seized of the legal estate in 
 fee, then the fee would have been in parties 
 before the Court, and the decree of the Court 
 
 *491 
 could have *operated upon that estate. For 
 certainly the decree could affect and divest 
 all the right and interest of the parties to 
 the suit. When, in the case supposed, the 
 Court orders the fee to be sold and conveyed 
 by the commissioner, his deed carries that 
 estate, and all the interests of the parties to 
 the suit, precisely as if they had themselves 
 executed the conveyance. The purchasers 
 would take the legal estate in fee. discharged 
 from the trusts or not, according to the 
 equities. And I think the equities of the 
 purchaser, in the case supposed, would be 
 equal to those of the cestui que trusts, and 
 that his legal title should prevail. 
 
 The jurisdiction of this Court over trusts 
 is peculiar and unlic;ited. And when one 
 creates a trust estate l)y deed or by will, it 
 is equivalent to conmiitting the estate to the 
 charge, and placing it under the administra- 
 tion of the Court of Equity. Such is the legal 
 ettect. The power of the Court to sell trust 
 estates is not doul)ted. And when such an 
 estate is sold under its decree, the Court is 
 one of the contracting parties; is in fact the 
 vendor. It assures the purchaser of its pow- 
 er to sell, and to make good titles. The pur- 
 chaser thus becomes the owner of the fee, 
 bona fide, and for valuable consideration. 
 His equity is high. AVould it not be hard to 
 affect him with notice of equities, and to 
 charge him with trusts which the Court it- 
 self nas overlooked or disregax'ded? 
 
 When the Court assumes the administra- 
 tion and orders a sale, it is its duty to pro- 
 tect the rights and interests of all parties re- 
 lated to the estate. If the Court omits to 
 make the proper administrative orders, or the 
 persons to whom the Court commits the 
 management or possession of the funds, 
 should prove vinfaithful, and the fund be lost 
 or wasted, ought that to affect the title of the 
 purchaser? I think not. When he pays his 
 money into Court, or into the hands of its 
 confidential agents, that should discharge 
 him. If the Court is the vendor, he is not 
 bound to look to the application of the pur- 
 chase money. An attempt to do so, might be 
 regarded as an impertinence. 
 
 I will not pursue the discussion on this 
 point farther, for as to the case before me 
 such discussion is abstract and speculative. 
 
 *492 
 *There was no trust beyond the life estate of 
 Eliza Davidson. And the decree of the Court 
 ou account of its jurisdiction over trusts, 
 
 200 
 
 could not oi)erate on the title of the com- 
 plainant, which was a vested legal title ia 
 remainder or reversion. There was no i)arty 
 before the Court representing either the 
 legal, or the eipiitable estate, beyond the life 
 estates of Gilbert and Eliza Davidson. The 
 ease of VauEew v. Parr, 2 Rich. E(i. :521, was 
 not a case of trust estate. And there, several 
 members of the Court of Errors, .expressed 
 the opinion that the sale was valid, though 
 the tenants for life alone were parties to the 
 suit. In that case, I incline to think I 
 should have been of the same opinion. That 
 case, however, differs from this in several 
 important particulars. It was a case of par- 
 tition, and the right of ordering a sale for 
 this purpose, when necessary, or deemed nec- 
 essary by the Court, is an incident to tlie 
 jurisdiction in partition. This power is es- 
 .scMitial to the full and ju'rfect exercise of 
 this branch of eipiity jurisdiction. In this 
 respect the practice of our Court is different 
 from that of the I':iiglisli Chancery. 
 
 Another essentially different feature in 
 VanLew v. Parr, is. that there the remain- 
 ders were contingent and not vested inter- 
 ests, and the remainder-men not in esse. But 
 in the case before me, the interest of those 
 who were to take at the termination of the 
 life estate was vested; and the parties not 
 only in esse, but living witiiin the jurisiliction 
 of the Court. In Eni'land, the rule is. that 
 the decree will be binding, if the person en- 
 titled to the first e.'^tate of inheritance is a 
 ])ariy. And where the party who would be 
 entitled to the first estate of inheritance is 
 not in esse, it has been observed, that a de- 
 cree in a suit where the tenant for life is a 
 party, will be binding upon those who are to 
 succeed him representatively. (Lloyd v. 
 Johnes, 9 Ves. 66; Pelham v. Gregory. 1 
 Eden, 520; Gittard v. Ilort, 1 Sch. & Lef. 400; 
 Reynoldson v. I'erkins. Anib. 564.) The doc- 
 trine thus laid down is not sufficiently broad 
 to embrace the case I am consi<lering. 
 
 In Giftard v, Hort. 1 Sch. & Lef. 400, Lord 
 *493 
 Redesdale, *speaking of the rule above com- 
 mented on, observes, that "contingent limita- 
 tions and executory devises to persons ni»t in 
 being, may, in like manner, be bound by a de- 
 cree against a person claiming a vested es- 
 tate of inheritance; but a person in iieing, 
 claiming under a limitation by way of ex- 
 ecutory devise not subject to any preceding 
 estate of inheritance, by which it may be de- 
 feated, must be made a party to a bill af- 
 fecting his rights." This doctrine of Lord 
 Kedesdale very fully and clearly expresses 
 what I conceive to be the rule. The prin- 
 ciple of representation to be deduced from 
 the authorities, may be summed up in the fol- 
 lowing legal proposition; that where the per- 
 son entitled to the first estate of inheritance 
 is a party before the Court, he is to be re- 
 garded as the representative of all those 
 contingent interests which are dependent
 
 WILI.TMAN V. HOLMES 
 
 *495 
 
 upon, and are to succeed his estate ; and, 
 consequently, a decree against such a party 
 will affect and bind those who are to suc- 
 ceed him. And, perhaps, the principle may 
 be extended so far as to embrace the case, 
 where there is an estate for life, with a con- 
 tingent remainder or executory devise to per- 
 sons not in esse without any vested estate 
 of inheritance interposed ; as in VanF.ew v. 
 Parr. But where there is an estate, to one 
 for life, with a vested remainder to persons 
 living, and within the jurisdiction of the 
 Court, I am aware of no decision or author- 
 ity, which countenances the doctrine that a 
 decree against the tenant for life will affect 
 or defeat the rights of the remainder-men, 
 they not being parties to the suit. 
 
 The Court should, and does go a great 
 length, in sustaining a title made under its 
 own decree. Mere irregularities or informali- 
 ties are in general not sufficient to invalidate 
 it. Lloyd V. Johnes, 9 Ves. 37 ; Bennett v. 
 Hamil, 2 Sch. & Lef. 575. But the decree of 
 the Court can only operate upon the title of 
 the xi'irties directly or representatively before 
 It. The principle of representation is admit- 
 ted in certain cases, for the sake of con- 
 venience, and on grounds of necessity. But 
 beyond the limits established by the cases 
 for its application, it is not to be admitted. 
 The language of Lord Hedesdale, in the case 
 
 *494 
 hist cited, *Bennett v. Ilamil. is worthy of 
 attention. He says, after admitting that 
 there was irregularity in the proceedings, er- 
 ror in the decree, and probably fraud be- 
 tween the parties to the suit, "but as to 
 Hart's representatives and Hamil. the ques- 
 tion is whether they are i)ersons who can be 
 affected, supposing the circumstances to be 
 clearly true as stated ; namely, that there 
 was error in the judgment of the Court in 
 not giving day to show cause; and error 
 also in directing a sale under the circum- 
 hitances. Now on that subject I must confess, 
 after considering this a good deal, I think it 
 would be too much to say, that a purchaser 
 under a decree of this description, can be 
 bound to look into all the circumstances. If 
 he is, he must go through all the proceedings 
 from the beginning to the end. and have the 
 opinion of the Court, that the decree is right 
 in all its parts, and that it would be impossi- 
 ble to alter it in any respect. The cases war- 
 rant no such opinion. On the contrary, so 
 far as I can tind, the general impression they 
 give is, that the purchaser has a right to 
 jiresume that the Court has taken the neces- 
 sary steps to investigate the rights of the 
 parties; and that it has in the investigation 
 properly decreed a sale; then lie is to see. 
 that this is a decree binding the parties 
 claiming the estate, that is, to .see. that all 
 proper parties to be bound, are before the 
 Court: And he has further to see that in 
 taking the conveyance he takes a title that 
 cannot be impeached aliunde. He lias no 
 
 right to call upon the Court to protect him 
 from a title not in issue in the cause, and 
 in no way affected by the decree. 
 
 The decree must be for the complainants; 
 but not to the extent of the claim set up in 
 their bill. The ulterior limitation of the will 
 is to the testator's "right heir at law." In 
 the designation of the person or the class of 
 persons to take, the singular number is em- 
 ployed. The complainant. Ch. Williman, is 
 the only son of the testator, and he claims 
 alone to answer the description, and to rep- 
 resent the character of the right heir of his 
 father, according to the English Common 
 Law cannon of descent. In a country where 
 
 *495 
 the rights of primogeniture have been *abol- 
 ished, and the male and female line placed 
 upon the most perfect equality in the distri- 
 bution of intestates' estates, I am at a loss 
 to perceive one specious reason, why under 
 the expression, the testator's "right heir at 
 law," the son can be considered as the per- 
 son intended, rather than the daughters, 
 even though he is the oldest child. Are they 
 not all equally his heirs at law'.' Do they 
 not equally answer the description".' The 
 language of the will must be construed with 
 reference to the law of descents in South 
 Carolina. My opinion, is that the word 
 "heir" in this connection is nomen coHecti- 
 vum, and embraces the whole of the testa- 
 tor's statutory heirs. He left five children ; 
 the Christopher Williman and the Ashbys, 
 who claim under him, are entitled to one- 
 fifth. The heir of Harriet D. .Tough, who is 
 a defendant, is also entitled to one-fifth. The 
 other three heirs, all of whom were parties 
 to the suit under which tlie property was 
 sold, are, in my opinion, esto[»ped. But as 
 they are not parties in this case, it would be 
 supererogation to conclude any thing in re- 
 gard to their rights. 
 
 There is another question which I must 
 now decide. The lands at the head of Tradd 
 street, purchased by W. A. Holmes, were 
 marsh. A portion of this tract, still retained 
 by the Holmes' family, has been at great 
 expense lilli^d up, converted into building 
 lots, and thus greatly enhanced in value. 
 It was all originally of the same value. The 
 defendtiuts are bona fide purchasers for a 
 valuable consideration. They had good rea- 
 sons for believing their title to be valid. Un- 
 der these circumstances, they have an equity, 
 to retain the value and benefit of their im- 
 provements. It has been satisfactorily shown 
 to me, that in the partition of the marsh 
 land in the possession of the Holmes' family, 
 one-fiftii thereof can l>e set off to the com- 
 plainants, and one-fifth to the defendant, D. 
 .Tough, without encroaching upon the parts 
 that are improved. And it is ordered that 
 the partition hereinafter directed be made 
 in this way, so far as regards the said marsh 
 lands now in the possession of the Holmes' 
 familj\ 
 
 201
 
 *495 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 It is ordered and decreed, that the coiu- 
 *496 
 plaiiiants are entitled to *one-fifth of the 
 lands claimed and described in the bill, and 
 that the defendant, W. H. D. Jough, is also 
 entitled to one-fifth thereof, that a writ do 
 issue to make partition thereof, and that the 
 parties have leave to apply for orders to 
 carry into effect this decree. 
 
 It is also ordered and decreed, that each 
 party pay his or her own costs. 
 
 There was no appeal ; the parties having 
 acquiesced. 
 
 ~ [The following dissenting opinion, in the 
 Court of Errors, of his Honor Chancellor 
 WarOlaw, in the case of BUIST v. DAWES, 
 (ante, 4121), was not furnished the reporter 
 in time to be inserted in its proper place:] 
 
 |Kd. Noto.— Citod in Beckam v. De Saussure, 
 Rich. rt'iO: McCorkle v. Black. 7 Rick. y:<\- 
 419: Sclmau v. Robertson, 46 S. C. 2{j'\ 24 
 S. E. 187.1 
 
 WARDLAW, Ch. I dissent from the opin- 
 ion of the majority on the only (luestion de- 
 cided by this Court, as to the quantity of the 
 estate taken by James Boone Perry in tne 
 land devised to him by the will of Edward 
 Tonge. On this point I adopt the conclusion 
 of Chancellor DARCJAN, that I'erry took a 
 fee conditional at the conmion law, and I 
 consider it superfluous to add to the Cliau- 
 cellor's reasoning, except a single observa- 
 tion for the sake of my own consistency. 
 McLure v. Young may be considered within 
 the exception to the rule in Shelley's case es- 
 tablished by Archer's case, as interpreted in 
 our case of Myers v. Anderson. 
 
 A second question was referred to this 
 Court by the Court of Aiipeals in Eipiity, 
 namely, whether there can be a valid limita- 
 tion by way of executory devise upon a fee 
 conditional? If there can be such limitation 
 by executory devise, it is immaterial to the 
 determination of this particular case whether 
 J. B. Perry took a ^ife estate or a fee con- 
 ditional as the testator prescribed that the 
 ultimate devise over should take effect, if 
 at all, at the termination of lives in being at 
 the date of the will. On this second question 
 some remarks will be made. 
 
 *497 
 
 *In considering this question, we must keep 
 separate the doctrines applicable to a strict 
 remainder and to an executory devise. A 
 remainder is defined to be a remnant of an 
 estate in lands or tenements, expectant on a 
 particular estate, created together with the 
 same at one time. Co. Lift. 14.3, a. It fol- 
 lows from this definition that where a fee is 
 first limited there is no remnant of the 
 estate which can be limited over. A fee can- 
 not be limited on a fee as a direct remainder. 
 Thus, if lands are limited to one and his 
 heirs, and if he dies without heirs to another, 
 the latter limitation is void. So, if lauds are 
 
 202 
 
 given to one and his heirs so long as J. S. 
 has issue, and after the death of J. S. with- 
 out issue to remain over to another, this 
 remainder is likewise void, because the first 
 devisee had a fee. fhougii it was a base and 
 determinable fee. So, anciently, before the 
 recognitiou of executory devises after a fee 
 simple, where' one devised lands to the prior 
 and convent of B. so that they paid annually 
 to the Dean and Chapter of St. Paul's four- 
 teen marks, and if they failed of payment 
 that their estate should cease, and tiiat the 
 said Dean and Chapter and their successorsi 
 should have it; it was held that this limita- 
 tion over was void, because as the first devise 
 carried a fee, nothing remained to be disposed 
 of. Dyer, '.V.i, a: 1 Eq. Ca. Ab. l.SU, pi. 3; 
 Eearne, 37.3. Tiiis last case was decided in 
 the reign of Henry VIII., in the interval be- 
 tween the .statute of uses and thp statute of 
 wills; to the combined operation of which 
 statutes the establislnnent of executory de- 
 vises is generally attrilmfed. Lewis on Perp. 
 75. Yet. in jv will, such limitations over, as 
 are above mentioned, are good by way of 
 «'xecutory devise, if dependent upon a contin- 
 gency which nnist happen, if it happen at 
 all, within lives in being at the time of the 
 donation and twenty-one years, and one, or 
 in rare cases, two periods of gestation after- 
 wards. An executory devise has been defined 
 to be a limitation by will of a future estate 
 or interest in land, which cannot, consistent- 
 ly with tiie rules of law, take effect as a re- 
 mainder. 1 .Jarm. on Wills, 77.S. Without 
 descrildng all the classes of limitations oper- 
 ative iiy executory devise wiiere by law they 
 
 *498 
 cannot take effect as re*mainders, it is suffi- 
 cient to mention, that by executory devise a 
 fee may be limited upon a fee within the fore- 
 going rule against perpetuities. No rule, 
 however, is more clearly settled than this: 
 that no limitation of a contingent estate shall 
 l)e effectual as an executory devise, if it can 
 possibly take effect as a remainder. That 
 any particular limitation may operate as an 
 executory devise, there must be a necessity 
 for such operation in order to its taking 
 effect at all, and an impossibility of its taking 
 effect as a remainder mider the rules of 
 conmion law. But no limitation after or up- 
 on a fee, although it be a base or conditional 
 fee, can operate effectively as a remainder; 
 and such limitation by will, if it have any 
 effect, must operate by way of executory 
 devise. This is the established docrine as 
 to conditional fees, notwitnstanding some 
 early doubts to the contrary, both in England 
 and in South Carolina. Co. Lift. 13, a ; [INIaz- 
 yck V. Vanderhorst] Bail. Eq. 48. 
 
 It has never been doubted since the intro- 
 duction of executory devises, that a fee could 
 be limited by executory devise upon a fee 
 simple absolute, where there was no objection 
 on the score of i-emoteness ; and it is diffi- 
 cult to find any reason why the same doc-
 
 Br I ST V. DAWES 
 
 •oCl 
 
 trine siunild not he applied to a fee simple 
 c-oiiditiouiil. We have setMi tliat both these 
 classes of fees exhaust the estate, so that no 
 remnant exists for the sulyeet of a remainder; 
 and both e(iually need the benijinant aid of 
 Courts in the interpretation of wills, in giv- 
 ing effect to executory devises. If a fee 
 simple conditional be a less estate than a fee 
 simple absolute, and yet not so reduced as to 
 be a particular estate of freeiiold, which ad- 
 mits a remainder, there seems to be stron- 
 ger reason why Courts should recognize the 
 jus disponendi of testators in creating limita- 
 tions over upon this estate. Littleton says: 
 "a man cannot have a more large or greater 
 estate of inheritance than a fee simple ;"' and 
 Lord Coke, commenting thereupon, says: 
 "this doth extend as well to fees simple con- 
 ditional and qualified, as to fees simple pure 
 and absolute. For our author speaks of the 
 ampleness and greatness of the estate, and 
 not of the perdurahleness of the same ; and 
 he that hath a fee simple conditional or 
 
 *499 
 
 ciualified. hath *as ample and great an estate, 
 as he that hath a fee simple absolute ; so as 
 the diversity appeareth between the quantitj* 
 and quality of the estate." Co. Litt. IS, a. 
 The prominent distinction between these two 
 classes of fees simple, is in the description 
 of the heirs to which the estates respectively 
 descend; one to the heirs general, and the 
 other to particular heirs, of the body gener- 
 ally, or restricted as to sex, and as to the 
 body that shall bear them. This of course 
 affects the duration of the estate in the 
 donee, and the x-everter to the donor, but 
 both are estates in fee simple of the same 
 quantity. All the rules applying to estates 
 in fee are ecpially applicable to the estate of 
 fee conditional, as to its creation and limita- 
 tion and the time of its continuance under the 
 limitation, with the exception of the order 
 of its descent and the right by alienation to 
 bar the donor. 2 Prest. on Est. 320. A gift 
 in fee conditional vests no right in the heirs 
 of the body of the donee beyond what is 
 conmutn to otlier heirs inider any form of 
 gift. The person to whom the gift is made 
 is tenant in fee, and as such he has the power 
 of alienation in right of that estate immedi- 
 ately after it is conveyed to him ; and his 
 conveyance will estop his issue subsequently 
 born, although it may not defeat the reverter 
 of the donor if the condition of having issue 
 be not performed. 2 Prest. Est. 304 : Bac. 
 Ab. Est. Tail. An estate in fee conditional 
 is not, as was supposed in the argument, an 
 estate for life in the first taker, capable of 
 being enlarged if issue be born to him, but 
 it is an estate in fee in the tirst taker, de- 
 feasible upon the non-performance of a con- 
 dition subseiiuent, that issue be born to him. 
 2 Co. Inst. 333. A fee conditional during its 
 continuance is the entire lee simple estate. 
 Adams v. Chaplin, 1 Hill, Eq. 27S, and is as 
 
 fit a suliject for executory devise as a fee 
 absolute. 
 
 The statute de donis conditionalibus. 13 Ed. 
 I. C. 1, which converted fees conditional into 
 estates tail, is not of force in South Carolina, 
 and the estate of fee conditional at the com- 
 mon law has been recognized as existing here 
 i)y many of our cases. In England, since the 
 statute, an estate tail is regarded by the 
 
 ■^500 
 Coiu'ts *not as a full fee, but as a particular 
 estate of freehold which is callable of supjiort- 
 ing a remainder. A fee conditional with us 
 will be a most anomalous estate, if we hold 
 it to be incapable as a particular estate of 
 supporting a remainder, and yet exhausting 
 the fee so as to leave no renniant for a re- 
 mainder; and in both aspects not the subject 
 of executory devise — a fee and not a fee. 
 
 In Adams v. Chaplin, and some other of our 
 cases, the right which abides in the donor 
 and his heirs after a gift in fee conditional, 
 is treated as a mere possibility of reverter, 
 which cannot be devised. This doctrine of 
 cour.se as.sumes that a fee conditional is the 
 whole estate ; for contingent and executory 
 estates, even a possibility clothed with an 
 interest, are devisable. Selwyn v. Selwyn, 2 
 Bur. 1131; Moor v. Hawkins, 2 Eden. 342; 
 Roe V. Jones, 3 T. R. 88 ; 1 Ves. jun. 251 : 7 
 Ves. 300; 17 Ves. 173; 4 Kent, "ill. In Eng- 
 land, a reversion after an e.sfate tail may be 
 devised. Badger v. Lloyd, 1 Salk. 232; San- 
 ford V. Irby. 3 B. & A. 0o4; 8 Ves. 25(5; but 
 there an estate tail is a particular estate of 
 freehold capable of sui)porting a remainder, 
 and the reversion is more than a jiossiltility. 
 The English statutes of wills, 32 and 34 
 Henry VIII., authorized those persons only 
 to devise who have an interest or estate in 
 fee .simple; our Act of 178!) gives the power 
 to any j)erson not under disability, "having 
 right or title to any lands, tenements, or 
 hereditaments whatsoever." 5 Stat. 100. 
 
 rpon the general (piestion we are consider- 
 ing, we find hardl.v any thing as authority in 
 the English cases. The statute de donis, so 
 early as A. D. 1285, converted fees condition- 
 al in freeholds into fees tail; and the estate 
 of fee conditional has not existed in England 
 for nearly six centuries, except in copy-holds, 
 (which are not within the statute,) in some 
 few manors where, by custom, copy-holds can- 
 not be entailed. The only case cited to us in 
 the argument is one first heard in the Com- 
 mon Pleas under the name of Doe d. Simpson 
 v. Simpson, 4 Bing. X. C. .333 (33 Eng. C. 
 L. R. 373.) and afterwards in the Court of 
 Exche(iuer Chamber under the name of Doe 
 
 *501 
 d. Blesard v. Simpson, ;; M. & G. 929, *(42 
 Eng. C. L. R. 48;i.) In this case, it was held, 
 that a demise of copy-hold lands, in a man- 
 or where there was no custtmi of entail, to J. 
 S. and his heirs, but if .1. S. should die with- 
 out leaving any child or children to M. B. 
 
 203
 
 *501 
 
 4 RICHARDSON'S EQUITY REPORTS 
 
 and her heirs, passed a fee simijle conditional 
 to J. S.— that 'child or children' were used 
 in the sense of 'issue' generally — that copy- 
 holds being real estate, the term leaving un- 
 der the distinction established in Forth v. 
 Chapman, 1 P. Wms. 663, and recognized in 
 Mazyck v. Vanderhorst, Bail. Eq. 48, was in- 
 sufficient to restrict the contingency of J. S. 
 dying without children, or its synonime issue, 
 to issue living at the time of his death, and 
 that no remainder could be limited upon a 
 fee conditional, and that the executory de- 
 vise was too remote. Throughout the argu- 
 ments and decisions, it was assumed and con- 
 ceded, that an executory devise upon a fee 
 conditional was liable to no objection pecul- 
 iar to the estate, and was like every execu- 
 tory devise upon a fee, to be considered only 
 with reference to the fact of remoteness. It 
 may be remarked, too, that a fee conditional 
 was implied in this case in the absence of 
 technical words. 
 
 We have dicta but no authoritative deci- 
 sion in South Carolina upon the point in 
 question. In Mazyck v. Vanderhorst. Bail. 
 Eq. 48, it was held that a fee conditional 
 could not support a remainder, and that a 
 limitation over upon the determination of 
 that estate by efflux or natural expiry, was 
 void by reason of remoteness as an executory 
 devise. The ruling in Forth v. Chapman was 
 adopted, that the word 'leaving" would not 
 as to real estate restrict failure of issue, oth- 
 erwise indefinite, to the time of the death 
 of the first taker. The whole discussion 
 upon the case assumed, that there might be 
 an executory devise upon a fee conditional, 
 and the only dispute was whether the words 
 of the will created an executory devise which 
 must take effect within the time limited by 
 the rule against perpetuities. The case is 
 quoted in Adams v. Chaplin, 1 Hill, Eq. 280, 
 and is thus interpreted by Judge O'Neall: 
 "an executory devise over after a fee condi- 
 tional, is too remote, and cannot take effect, 
 
 *502 
 
 unless it be accompa*nied by such words as 
 will restrict the failure of the heirs of the 
 body, to a dying without leaving issue at the 
 death of the first taker." Again, in Bedon v. 
 Bedon, 2 Bail. 248, Judge O'Neall says: "if 
 the estate of S. B. be construed a fee condi- 
 tional, the estate in remainder to R. B. can- 
 not take effect as a contingent remainder ; 
 for it would be a fee mounted on a fee, there- 
 fore void. It could not operate as an ex- 
 ecutory devise, for if the devisee took an 
 estate in fee conditional, the limitation would 
 be after an indefinite failure of issue capable 
 of taking per formam doni." This is sound 
 doctrine. A limitation by will to take eft'ect 
 upon the natural efflux of a fee conditional is 
 necessarily after an indefinite failure of is- 
 sue and void for remoteness; but if the ob- 
 jection of remoteness can be escaped, this 
 estate, as other fees, admits of devises over. 
 204 
 
 It may be remarked in passing, that it was 
 properly argued in Bedon v. Bedon, as it was 
 determined in Simpson v. Simp.son, that the 
 same words in the devise over could not per- 
 form the double office of implying a fee condi- 
 tional and creating an executory devise. In 
 Edwards v. Barksdale, 2 Hill, Eq. 197, the 
 same eminent Judge remarks: "I hold there 
 can be no such thing as a fee conditional 
 where there is a good executory devise over. 
 When the limitation is within a life or lives 
 in being or twenty-one years after, it cuts 
 down and destroys the effect of a previous 
 devise to one and the heirs of his body, by 
 showing that the testator did not look to an 
 indefinite succession, and that he did not in- 
 tend his devisee to have all the incidents of 
 the common law estate of fee conditional, 
 such as the power to alien or encumber the 
 estate," &c. "This is the only means of 
 reconciling two rules of law: 1. That a limi- 
 tation over after a fee conditional is void; 
 2. that a limitation over which is to take ef- 
 fect within a life or lives in being is good." 
 In general this is a good exposition of doc- 
 trine, but the fault in the reasoning, as it 
 seems to me, is in supi)osing that a restriction 
 of the power of alienation in the first tenant 
 existing upon, or subject to the performance 
 of, the condition of having issue, destroys the 
 fee conditional. I suppose that this error is 
 
 *503 
 
 the foundation of *the learned Judge's repug- 
 nance to the implication of fees conditional, 
 in contempt of English authority. There is 
 no reason why the (pialified power of a ten- 
 ant in fee conditional to alien the estate, de- 
 pendant upon the birth of issue, may not be 
 restricted by executory devise, which does 
 not extend to a tenant in fee simple absolute 
 having a general power of alienation, sub- 
 ject to an executory devise. The alienation 
 of a tenant in fee simple absolute, with a 
 devise over if he die without issue living at 
 his death, is necessarily determined at his 
 death without issue then living; and under 
 like circumstances the alienation of the ten- 
 ant in fee conditional would be determined. 
 A tenant in fee simple absolute has a general 
 power of alienation which may be restrained 
 by executory devLse; a tenant in fee condi- 
 tional has a power of alienation subject to the 
 performance of the condition of having issue, 
 which may be likewise so restrained by ex- 
 ecutory devise. The power of alienation is 
 no more an inseparable incident of one of 
 these fees than of the other. One of the 
 most characteristic differences between a 
 contingent remainder and an executory de- 
 vise, is, that the former may be barred, or 
 prevented from effect by common recovery or 
 other means adopted by the first tenant; 
 whereas an executory devise cannot be pre- 
 vented or destroyed by any alteration of the 
 estate upon which it is limited. Fearne, 418. 
 But I do not understand the argument, whieli
 
 lUIST V. DAWES 
 
 *504 
 
 deduces from this proposition any difference, 
 as to the point in question, between fees ab- 
 solute and conditional. The indestructibility 
 of the devise over, applicabU' to both estates, 
 is an indifferent circumstance in a question as 
 to the capacity of either estate to support a 
 devise over. 
 
 In Whitworth v. Stuckey, 1 Itich. Eq. 411, 
 Chancellor Harper treats an executory devise 
 upon a fee conditional as dependent for its 
 validity upon the question of remoteness. I 
 refer to Chancellor .Johnston's circuit opinion 
 in Hay v. Hay [4 Rich. Eq. 'MH] as a judicious 
 explanation of Whitworth v. Stuckey. 
 
 Without further pursuing the intpsiry, I 
 
 announce my conclusion, that, upon principle 
 
 *504 
 and autliority, an executory devise may *be 
 limited upon a fee simple conditional, if with- 
 in the time tixed by the rule against peipetui- 
 ties. 
 
 JOHNSTON, Ch., and EVANS, J,, concur- 
 red. 
 
 WAKOLAW, .7. I concur in so much of 
 Chancellor WAllULAW'S opinion as holds, 
 that an executory devLse of real estate may 
 be engrafted ou a direct devise iu fee condi- 
 tional. 
 
 205 
 
 [End of Volume 4 Rich. Eq.]
 
 REPORTS 
 
 OF 
 
 CASES IN EQUITY 
 
 AKGUUn AND OKTHRMINKD IN THE 
 
 COURT OFAriT.ALS AND COURT OF ERRORS 
 OF SOUTH CAROLINA 
 
 VOLUME V 
 
 FROM NOVEMBER. 1S52. TO MAY. 1S5:".. BOTH INCLUSIVE 
 
 By J. S. G. RICHARDSON 
 
 STATE REPORTER 
 
 I IIAKI.KSTO.N, S. r. 
 
 rUBLLSIIEI> BY MC'CARTER & CO. 
 
 NO. 116 MKETIKG STREET 
 
 isr.4 
 
 ANNOTATED EDITION 
 
 ST. PAUL 
 
 WEST PUBLISHING CO. 
 
 1917
 
 TABLE OF CASES REPORTED 
 
 Alu'aliams v. Cole. 
 
 r.ailcy V. lioyoo. . . 
 15oycc V. IJoyci' . . . 
 
 Cluirlpston Ins. & Trust Co 
 ("liina V. Wliit". . . 
 Coiliott \'. Lall^<'Il^ 
 Cox V. Cox 
 
 l>anncr v. Trcscot. 
 I »avis V. Keller. . . . 
 1 Mike V. Fiilnii'r . . , 
 I >\nican v. Dent. . . 
 
 IVl.ler V. FeMer. . . 
 I'\)rtune v. Hayes. 
 I'owke \. '^riionipson 
 Fox V. Ford 
 
 Cibhos V. Flliott. . 
 Cihson V. M;irshall 
 
 ll.'a.l V. llaifonl. . 
 Ilext V. Walker. .. 
 
 Ison V. Isoii 
 
 .Tackson v. McAliley 
 
 Ketcliin V. ISeaty 
 
 MoKinue v. City Council of A 
 McLure v. Askew 
 McRae v. David. . 
 
 5 Ricii.IC'/. 
 
 1ST 
 
 .••,412 
 4-_'(; 
 
 ;'.(■..") 
 
 :!.■)(; 
 4;u 
 
 ILM 
 
 ITJ 
 •.'AU 
 
 12.",4 
 
 r> 
 1.". 
 
 oS 
 
 s:i 
 
 47,". 1 
 
 Mikell V. Mikell. 
 MofTatt V. Tliomsoi 
 Moss V. li rat ton. . 
 
 Owens V. Sinjpson. 
 
 I'arris v. Col)li 
 
 I'aslay v. Mariin . . 
 I'erdriau \. Wills. 
 I'erry v. Lojian . . . 
 I'imsi V. Sandifer. . 
 
 Kawls V. Wall 
 
 Reed V. Vidal 
 
 RlH'so V. lloliues. . 
 Rpt'ves V. Tueker. . 
 Riildle V. Riddle.. . 
 Rivei's V. (Jre^fi. . . 
 Rosborough v. llemi)liill 
 
 Sliands v. Triplet. . . 
 Simons V. Soutliwestei 
 Siinpsun V. Downs. . 
 
 Smith V. I'rown 
 
 Street \'. Laurens. . . . 
 
 Thompson v. Dulles. 
 
 Vandersmisscn, Fx pa 
 
 W.ire. Fx parte 
 
 Wilie V. Price 
 
 Winslow V. I'.arry. un 
 Wriiiht V. Faves. . . . 
 Wri^'ht V. llerron. . . 
 
 Page 
 liUO 
 
 ir,.-, 
 
 1 
 
 40.". 
 
 4.".0 
 351 
 lid 
 '202 
 170 
 
 14:; 
 
 2SU 
 
 .-.: ; L 
 
 l.-.o 
 
 :;i 
 
 274 
 
 il.l 
 
 70 
 1270 
 4l!l 
 
 r.l'J 
 
 47:^ 
 !>l 
 
 L'OO 
 SI 
 
 441
 
 CASES IX EQUITY 
 
 AKlilKl) AM> DKTKRMI.NKU IN TllK 
 
 COURT OF APPEALS 
 
 AT COLUMBIA, SOUTH CAROLIXA. NOVEMLiKK AXD 
 DECKMT.r.R TERM. 1852. 
 
 ClIAXCKLLORS PrKSKXT. 
 
 Hon. .I(»r. JOHNSTON. 
 
 r.KN.T. F. DTNKIX. 
 (JKOKCK W. 1>AI{(;AX, 
 F. H. WARDI.AW. 
 
 5 Rich. Eq. *l 
 
 ♦JOSEPH R. MOSS V. JOHN S. lUtATTON 
 and Others. 
 
 (Columbia. Nov. and Doc. TtMiii. IS.VJ.) 
 
 [Mortgafies (S=^}S(>.1 
 
 On u bill for fort'dosure by tli(> niortj^asoo 
 against the mortgagor, tiie inirchMS(>r of the 
 equity of redemption, and a piireliaser from 
 him with general warranty, the Court, liaviu^ 
 all the parties before it. will make such a decree 
 as will satisfy all eipiities among the defend- 
 ants, ari.sing Irom the case. 
 
 [Ed. Note.— Cited in Trimmier v. Vise, 17 S. 
 C. 501', r.(t:5, 4n Am. Rep. (i24 : Norman v. 
 Norman. L'(i S. C. 4S, 11 S. E. lOlKi: McAfee 
 V. McAfee. L»s S. C. '22i. "> S. E. niKJ ; Heattie 
 V. Latimer. 42 S. C. .".JO. liO S. E. ").•!; l?\iist 
 V. Melcliers. 44 S. C <»4. 21 S. E. 41!); Phil- 
 lips V. Anthonv, 47 S. C. 4r)2, 2.") S. E. 2tt4; 
 Brown v. (Jreen. 89 S. C. 328. 71 S. E. !)r)S. 
 
 For other cases, see Mortgages, Cent. Dig. 
 § 1407; Dec. Dig. <®=»480.1 
 
 [This case is also citi'd in Eraser & Dill v. 
 City Council (.f Chariest. >n. 11 S. C. 511), 
 without specific application.] 
 
 Doctor McClerkin, on January 30, 1845, 
 mortgaged to the plaintiff a tract of land 
 to secure the itaynient of a single 1)111. and 
 also gave to the defendant John S. Hratton, 
 a confession of judguient, which was enter- 
 ed on the same day l)Ut after the execution 
 of tlie luortgagi". Hratton had tlu' land lev- 
 ied on by the sheritT under iiis fi. fa., and 
 at the sale became the purchaser. The mort- 
 gage had been duly reccuded, and notice of 
 It was given at the sah>. Afterwards, on 
 
 ♦2 
 March 1. I.s4s, in con*si(h'ratiuM of ijilSO to 
 him paid, I'.iMtton cniivrycil the hind, with 
 gciicr:il \\ ari:iiily, to llillcu I IciiiiMuw .-ly. 
 
 The plaintifT obtained judgment nt law on 
 the single bill, and Doctor McClerkin being 
 in.sidvent and absent from tlie State, he. the 
 plaintiff, having first demanded payment of 
 his debt from Hratton. tiled this bill. Ajiril 
 20. 1850. against Doctor McClerkin, John S. 
 P.rMtton and llellen Ilendngway, for a fore- 
 closure of his mortgage, or payment of his 
 debt in some other mode. 
 
 The plaintiffs claim was resisted, jirinci- 
 pally by Brat ton, on the ground that the en- 
 try of his judgment was prior in time to the 
 execution of plaintiff's mortgage. Bratton 
 also insisted that the plaiiitill's remedy, if 
 be had any, was against the land exclusivtdy. 
 
 The cause was first heard, at York. .June, 
 1851, before his Honor, Chancellor Wardlaw, 
 who ruled, that Bratton was proi)erly a ftar- 
 ty to the bill, and hehl. upon the testimony, 
 that the plaintiff had the first lien upon the 
 laud. His Honor decreed as fidlows: 
 
 It is ordered and decreeil, that it be re- 
 ferred to the Conunissioner ti) eiupnre and 
 reitort as to the amount remaining «lue to 
 the plaintiff upon the debt of McClerkin se- 
 cured by the mortgage; and that, upon the 
 condng in of that report, plaintiff may apply 
 to the Court for a sale of the mortgaged 
 premises, for foreclosure, and that Helleu 
 Hemingway may apply for an attachment or 
 execution against the co-defendant, J(dui S. 
 Bratton. to comi>el re-imbursement for any 
 payments .she may be comp«'lled to make iu 
 satisfaction of the lien of the mortgage: 
 costs to be paid out of the proceeds of the 
 sale of the mortgaged preudses. if sutlicient, 
 otherwise as will be hereafter ordered. 
 
 C=:^Fur other cases .see same topic aucl KKV-NUMliKR in all Key-Numbered Digests aud Indexes 
 5 Klcn.Etj.— 1 ,
 
 *2 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 The Commissioner having reported that 
 the amomit due to the plaintiff was $147.93. 
 the Court, sitting for Yorlc, June, 1852, his 
 Honor Cliancellor Johnston presiding, made 
 the following decree: 
 
 On motion of Witherspoon, complainant's 
 *3 
 solicitor, it is or*dered that the report made 
 I»y the Commissioner in the above case and 
 filed 15th June, 1852, be confirmed. It is 
 further ordered, that should Doctor Mc- 
 Clerkin fail to pay the amount of debt, inter- 
 est and costs due, on or before the day of 
 sale, then the said Doctor McClerkin is there- 
 after to be forever debarred his equity of 
 redemption, and that the Commissioner of 
 this Court do on some public sale day be- 
 tween this and the 1st Monday in January 
 next, or the next convenient sale day, after 
 giving twenty-one days notice, expose to sale 
 the land described in the pleadings, to the 
 highest bidder, for cash ; and should the 
 land not sell for a sufficient sum to pay the 
 costs according to the decree of Chancellor 
 Wardlaw, will report the sales, amount of 
 costs and deficiency. In either event the 
 Commissioner will report to the next Court 
 in what manner this order has been com- 
 plied with. 
 
 From this decree Hellen Hemingway ap- 
 pealed on the ground: 
 
 Because said decree and order directs a 
 sale of the mortgaged premises, when it is 
 respectfully submitted that the defendant 
 J. S. Bratton, under the circumstances should 
 have been decreed to pay the mortgage debt 
 and costs, inasmuch as said Bratton, with 
 notice of complainant's mortgage, conveyed 
 the premises, with warranty, to the appel- 
 lant, and ought not to be permitted to defeat 
 his own title, that he may make the land 
 pay the costs. 
 
 Smith, for appellant. 
 Williams, Witherspoon, contra. 
 
 The opinion of the Court was delivered by 
 
 JOHNSTON, Ch. The decree of 1852 ap- 
 pears to me to be hasty and inaccurate. 
 
 If McClerkin after the execution of his 
 mortgage, had sold the mortgaged premises 
 to Bratton, subject to the lien of the mort- 
 gage upon it, it cannot be doubted that, as 
 between himself and Bratton, he would have 
 had an equity to have the mortgage debt rais- 
 ed out of the land in the first instance, in 
 exoneration of his own personal responsibil- 
 
 ity. The purchase *made by Bratton, from 
 the sheriff, of McClerkin's equity of redemp- 
 tion, (as defined by the statute of 1791,) had 
 precisely the same effect as if McClerkin had 
 conveyed to him with notice of, and sub- 
 ject to, the mortgage. He bought McClerk- 
 in's right: i. e., he obtained a title to the 
 land encumbered with the lien: and he paid 
 for the Laud just so much as it was worth. 
 
 over and above the lien: and though ho did 
 not become personally bound for tlie mort- 
 gage debt, yet the land, in his hands, was 
 specifically bound, so far as it might suffice, 
 for the payment of that debt. 
 
 It appears that Brdtton, after his pur- 
 chase, conveyed the land, with general war- 
 ranty, to Hellen Hemingway, for if 1.50 ; a 
 sum exceeding the debt and interest due on 
 the mortgage. 
 
 He thus received a fund to satisfy the 
 lien ; and as between himself and Miss Hem- 
 ingway, was bound, by his covenant, to ex- 
 onerate the land in her hands, from the en- 
 cumbrance of the mortgage. 
 
 All parties being before the Court, my 
 opinion is that such a decree should have 
 been made as would have done complete jus- 
 tice in the case. 
 
 The mortgagee was entitled to all his rem- 
 edies ; by a decree for payment, so far as 
 the lien of his mortgage might suffice,— and 
 failing that, then to raise the balance out of 
 McClerkin, his debtor. But, as between the 
 defendants, the decree should have been such 
 as to satisfy all equities among them, aris- 
 ing from the case of the plaintiff" against 
 the defendants. 
 
 Bratton should be decreed to pay the mort- 
 gage debt, in exoneration of his covenantee, 
 Hellen Hemingway; and it is ordered and 
 decreed that he do so; and that he be en- 
 forced to the payment by fi. fa. or attach- 
 ment. 
 
 If within three months from the filing 
 of this decree and the issue of process there- 
 on as aforesaid, the money be not raised 
 from Bratton, then it is ordered that the 
 Commissioner do proceed to raise it by sale 
 of the mortgaged premises, in the hands of 
 Hellen Hemingway. The sale to be made for 
 cash ; after at least twenty-one days pub- 
 lic advertisement. 
 
 *5 
 
 * Whatever excess may remain after said 
 sale, after satisfying said debt, to be refund- 
 ed to Hellen Hemingway. 
 
 It is further decreed, that if the plaintitt''s 
 debt be not raised in either of the above 
 ways, he have execution or attachment 
 against McClerkin, his debtor, for the de- 
 ficiency. 
 
 It is further decreed, that Hellen Heming- 
 way have remedy over, by fi. fa. and attach- 
 ment against Bratton, for whatever sums 
 may be raised and applied to the mortgage 
 debt, out of the lands conveyed and warrant- 
 ed by him to her. 
 
 Lastly it is ordered, that Bratton, who 
 occasioned this suit by resisting the plain- 
 tiff's mortgage, and by failing to pay over 
 to it the pi'ice for which he sold the land, 
 do pay the costs of this suit. 
 
 And it is ordered, that the order of June 
 1S52 be modified according to the foregoing 
 order and decree. 
 
 Any party to be at liberty to apply to the
 
 DUXCAX V. DEXT 
 
 anj fuitlu.. onl.r necessary n, th. .-nse. cree as to costs. WalU.r and llalfurd did 
 
 DFXKIX, DAIMJAX and W Aia»LA\V, CC, 
 concnrrt'd. 
 
 Decree luodilied. 
 
 5 Rich. Eq. 5 
 
 FAAZA A. IlEXT and Otii.'is v. X. C. W. 
 
 W.VIJvEU and Utliors. 
 
 (Colli. nliin. Xov. and Dec. Term, l.sr.2.) 
 
 [Exec tit ion C=5l72.] 
 
 To a l)ill til enjoin oxcciitinn creditors from 
 Itrocoedins to eiifuive their exe.utions. the sher- 
 ift is not a necessary party. .\..tic,. to lum of 
 the order for an injiinetion is siillieient. 
 
 [Ed. XotP.— For other ea.ses. see K.xeeution, 
 Cent. Dig. § 5l2;{: Dec. Dig. <S=3l72.1 
 
 \CosU <g=j212.] 
 
 Though a decree as to costs is not the sui)- 
 .lect matter of apiieal, \et whih' tiie ease is 
 before the Court of App.ais. inadvertency or 
 oversights as to costs, will he corrected there 
 on the suggestion, or by the consent of the 
 Chancellor who tried the cause. 
 
 [Ed Xote.-Cited in St.'gall v. Bolt, 11 S. 
 C. 524; P.ratton v. .Massev. IS s. c. otil • 
 Scott V. Alexander. 23 S. C. 12<i. 
 
 For ()ther cases, see Costs. Cent. Dig. S SOO ; 
 Dec. Dig. <S=3212.] ' 
 
 Before Dargan, Cli., at Ilarnwcli. Fel.ruarv 
 1S52. 
 
 Eliza A. Hext, one of the plaintiffs, was 
 the wife of Lawrence V. Hext, one of the de- 
 
 *6 
 fendants, and the t>thcr plaintilTs *were 
 their children. The defendants were X. G. 
 W. Walker, late sheritT of Barnwell Dis- 
 trict, William U. Halford. his successor in 
 oflice, Lawrence l\ Hext, and Maria Eraser 
 and Kicliard C. Ashe execution creditors of 
 Lawrence 1'. Hext. To the original hill Hal- 
 ford was not a party: he was made a party. 
 by supplemental hill, after he liad succeeded 
 to the ollice. 
 
 Under the exeeution.s of Maiia Eraser and 
 Richard C. Ashe, certain slaves had been 
 seized as the property of Lawrence 1'. Hext; 
 and this bill, which claimed that the slaves 
 had been settled to the sole and separate use 
 of Eliza A. Hext for life, with remainder to 
 her children, was for an injunction. 
 
 His Honor, the Chancellor, made the fol- 
 lowing decree: 
 
 It is ordered and decreed that the levy 
 made upon the negroes in the pleadings be 
 di.schargod, and that the defendants and 
 their confederates be i>erpetually enjoined 
 from selling or levying upon the said negroes, 
 under and by virtue of the af(u-esaid execu- 
 tions, or otherwi.se disturbing the complain- 
 ants in their enjoyment of. the said negroes. 
 It is further ordereil and d*'creed, that the 
 defendants jiay the costs. 
 
 From this decree appeals were taken by 
 Maria Eraser and Richard C. Ashe, but not 
 
 not appeal. 
 
 Bauskett, for ajipellant. 
 
 Bellinger and Hutson, contra. 
 
 The opinion of ih,. Comr was delivered bv 
 
 DAR(;aX, Ch. In this case the Court con- 
 curs fully in the views which the Chancelh.r. 
 who tried the cau.se. lias expressed in the cii- 
 tuit decree. And nothing more need be said 
 as to the grounds of apjieal taken. 
 
 But the Chancellor who rendered the de- 
 cree suggests, that in ilecreeing costs against 
 the defendants gen.'rally. he has inadvertent- 
 l.v given costs against X. (;. \V. Walker, the 
 ex-sheriff, and Wm. R. Halford, the pre.sent 
 sherifl'. of B.irnwell District, who were form- 
 al pa rHes, not int.Mcsted in the event of the 
 suit, and who. in the oi)inion of the Court 
 
 *7 
 were not ne<'.'ssary par*tie.s. An order f.»r 
 an injunction having been made restraining 
 the other defen.lants from proceeding to en- 
 force their executions at law, notice to the 
 sheriir would have been sutlicient without 
 making him a party on the record. 
 
 A decree as to costs is not the subject 
 matter of apiieal, nor has it been ma.le a 
 ground of aitpeal in this case. But while 
 the case is before this Court on ai)peal, in- 
 advertency or oversights as to costs, will 
 be correcteld here, on the suggestion, or by 
 the consent, of the Chancellor who tried the 
 cause. 
 
 In tliis case it is ordered and decreed, that 
 the circuit decree as to costs be so modified 
 that the defendants Walker and Halford be 
 exempt from the i)ayinent of any part of the 
 costs : and that the other defendants pay all 
 the costs. 
 
 As to the grounds of appeal taken before 
 and heard by this Court, it is ordered and 
 decreed that the same be dismissed, and the 
 circuit decree be athrnied. 
 
 JOHX8TOX. DEXIvLX and WARDLAW, 
 CC, Concurred. 
 Decree modi lied. 
 
 5 Rich. Eq. 7 
 
 •lOIiX DlXr.V.X :,n.l (tthers v. SAMIEL 
 
 DEXT, Administrator. 
 
 (Columbia. Xov. and Dec. Term, isr>2.) 
 
 [Exccuiurs mid AihninistrdtDrs C=>1()4 | 
 
 An administrator k.'eping funds, after nav- 
 ment ol debts, in his hands without profit will 
 not be excused from the paym.Mit of interest 
 inerelv because v.-irious persons claim the estate 
 III .linennt rights, and suits have been insti- 
 tuted. 
 
 s'c'-l^"^'^^"^'^^^ in Nettles v. McCowu, 5 
 
 For other cases, see E.xecutors and Adminis- 
 trators. Cent. Dig. § 424; Dec. Di-. c=3d]()4.| 
 
 <£=;oFor other ca.es see same topic and KL'l'-NUMUER iu all Key-Numbered Digests and Indexes
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 [Executors and Administrators <©=3473, 474.] 
 
 An allegation of defendant in his answer, 
 made by way of defence to an ordinary bill for 
 account, that be had kept the funds in his 
 bands without making interest, will not throw 
 the onus of disproving it on the plaintiff — the 
 onus is on the defendant. 
 
 [Ed. Note.— Cited in Barr v. Haseldon, 10 
 Rich. Eq. 62; Cloud v. Calhoun, Id. 366; 
 Burnside v. Robertson, 28 S. C. 5S7, 6 S. E. 
 843. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 2052; Dec. Dig. (©=^473, 
 474.] 
 
 Before Wardlaw, Ch., at Ricbland, June, 
 1852. 
 
 This case came up on exception to the 
 Counnissioner's report. The report is as 
 follows : 
 
 *8 
 
 *"In obedience to the order of the Court, 
 I have held a reference in the above case, 
 and submit the following i-eport with accom- 
 panying testimony. There is no difference of 
 opinion as to the facts set forth and stated 
 in the bill of complaint ; both complainants 
 and tlefendant, through their solicitors, con- 
 cur as to the facts, and that the annual bal- 
 ance as appears by the return of the adminis- 
 trator is correct and proper ; both complain- 
 ants' and defendant's solicitors consent that 
 the land should be sold, described in the bill. 
 I therefore recommend that it is expedient 
 to do so. The only question upon which 
 there is a difference of opinion, or about 
 which there is any dispute, is whether the 
 administrator, Samuel Dent, is chargeable 
 with interest on the annual balance in his 
 hands under the circumstances of the case. 
 After the payment of certain debts and de- 
 ducting commissions, there was in the hands 
 of the administrator $3,401.10, adding one 
 year's interest and cash received for land, 
 leaving a balance in his hands of $3,149.55, 
 20th July, 1847. Shall the administrator pay 
 interest on that sum up to the present time? 
 As a general rule all executors and adminis- 
 trators are chargeable with interest on annu- 
 al balances, unless a sufficient excuse or jus- 
 tification is offered to discharge them. What 
 is the excuse offered by the defendant? On 
 the 1st of April, 1846, A. Herbemont, escheat- 
 or of Richland District, notified the adminis- 
 trator "to hold the proceeds of the sale of 
 the estate as well as all other monies which 
 may come into your hands on account of said 
 estate, subject to the claim of the trustees of 
 the Academy of Columbia." A similar no- 
 tice was served upon the administrator, 20th 
 February, 1847, notifying him that the trus- 
 tees claim the funds as escheated estate : 
 signed W. F. DeSaussure, president of the 
 Trustees Academy of Columbia. In addition 
 there is evidence of different litigations, com- 
 mencing 16th March, 1848, and continuing 
 down to 1851, the period of the compromise 
 agreement ; and evidence of defendant's an- 
 swer, not contradicted by proof, that after the 
 receipt of the notices, he held the money in 
 
 his hands ready at any time to pay tlie same 
 
 *9 
 over to whoever *should be entitled, not 
 having used it. This is the extent of the 
 proof offered by the defendant to discharge 
 him from his liability. If the administra- 
 tor imprudently neglected or omitted to lay 
 out the monies in his hands he would be lia- 
 ble for the interest, or if lie used the money, 
 or committed any other misfeasance, or if 
 he kept the money dead in his hands without 
 any apparent reason or necessity, it would 
 become negligence, and he would be chargea- 
 ble with interest. An executor shall not 
 be charged with interest inider a fair appre- 
 hension of his right to it. Outstanding de- 
 mands are not sufficient to discharge an exec- 
 utor or administrator from the payment of 
 interest. These are w^ell settled principles, 
 and we have only to inquire, do the circum- 
 stances of the case and the proof justify 
 the administrator in retaining the money in 
 his hands? I am satisfied that the evidence 
 is sufficient to bring him under the protection 
 of the principles laid down. An outstanding 
 demand would be no excuse, but two or three 
 branches of litigation, the escheator and 
 President of the Columbia Academy all claim- 
 ing the funds, it certainly was prudent for 
 the administrator to retain the funds in his 
 hands, not knowing at what time, or by 
 whom, he would be called on for the money 
 as legally entitled to it. There is no proof 
 that he used or that he made profit out of it ; 
 but, on the contrary, that he retained it in 
 his hands, ready at any time to pay it over 
 to the legal and rightful owner. The admin- 
 istrator is willing to account for the interest 
 received upon notes not paid when due. I 
 have therefore charged the administrator 
 with the balance of interest so received, 
 amounting to eighty dollars and fifty-four 
 cents. 
 "The account wall stand thus: 
 
 Balance in hands of administrator. ..$3,149 55 
 Add eighty dollars and fifty-four 
 cents interest 80 54 
 
 Making the aggregate in the hands of 
 the administrator $3,230 09" 
 
 The complainants excepted to the Commis- 
 sioner's report on the following grounds: 
 *10 
 
 *Because the Commissioner ought to have 
 charged the administrator with interest on 
 the balance in his hands from the date from 
 which the said administrator had declined 
 to account for interest. 
 
 Wardlaw, Ch. This case is presented to 
 me on an exception by the plaintiff' to the 
 Commissioner's report on the defendant's 
 accounts, because the Commissioner has not 
 charged the defendant, as administrator, 
 with interest on the funds in his hands, be- 
 yond the interest which the defendant^ ad- 
 mits that he has actually received. The 
 facts and reasons upon which the Commis- 
 
 <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 DUXCAX V. DEXT 
 
 *12 
 
 Bloner actt.l ,aro clearly statod in his re- 
 port, to wiiirh I refer. The sulistance of de- 
 fendant's excuse from the payment of inter- 
 est, is, that haviiij; been nutifu'd by the es- 
 cheator in lS4(i that tlie estate in the ad- 
 niinistrator's hands was claimed as an es- 
 cheat, he retained the fnnds without mak- 
 ing profit, to meet the claim. No proceeding 
 towards escheat was ever instituted. Tlie 
 only actual suits concerninj: the estate, were 
 a bill filed KUh March, 1S4S, against the ad- 
 ministrator, for account, by persons claim- 
 ing' t<j be next of kin of the deceast'd, which 
 was comprondsed in isni, (in conn«'Ction with 
 the proceedin.i: next mentioned) and a suit, 
 first in the Court of Ordinary and by appeal 
 In the Court of Connnon Pleas, to set up a 
 will of the deceased. This latter proceed- 
 ing was instituted in April. isr>0. and was 
 terminated by compronnse in October, isol, 
 according to which a verdict was to be found 
 establishing the will propounded for probate, 
 and the plaintiffs as legatees, were to re- 
 ceive one-third of the estate in full of their 
 claims; the verdict was so found, and the 
 defendant iiromptly paid the portion of the 
 principal of the estate to which the plain- 
 tiffs, by the compromise, were entitled. The 
 exemption from interest begins in Xovem- 
 ber. 1S4G. and April, 1S47, at the expiration 
 of a year from the two sales made bv the 
 adnnnistrator; the securities for the pro- 
 ceeds of sale bearing interest from the dates 
 of sales, respectively, made a year before. 
 On the authority of Chesnut v. Strong, 2 
 Hill Eij. l.-.(t. I regard the fact as estal)lished 
 
 *11 I 
 
 *by his answer in the absence of any coun- | 
 tervailing proof, that the defendant did re- 
 tain the funds of the estate in his hands 
 without making interest. The question in 
 the case is, whether he was guilty of neg- 
 ligence, amounting to such a breach of trust 
 as to subject him to the payment of interest, 
 in thus keeping the funds unprofitable. 
 
 In general, trustees to whom is connnitted 
 the management of estates, are liable for in- 
 terest if they keei) monies in their hands, 
 without necessity from the exigencies of the 
 estates, to meet lumiediate demands. 2 
 Wms. on Exors. 1309; Uam. on A.ssets 51- ~ 
 Newton v. Rennet, 1 liro. C. K. 351), ami Per- 
 kin's Notes; Littlehales v. Ga.scovne, and 
 Franklin v. Frith. 3 Bros. C. K. 73 and 433; 
 Pace V. Burton. 1 MeC. Eq. liaO ; Black v 
 Blakely, 2 McC. E<j. 7; Taveau v. Ball. 1 
 McC. E<i. 4o9. Notwithstanding the report 
 of the Comnu.ssioner. and tlie earnest and 
 strong argument made for defi-ndant, I am 
 unable to concluile that any exigency of tlie 
 estate under his management justified the 
 defendant in keeping the monies di'ad in his 
 hands, according to the phrase of E(u-d Thur- 
 low. A mere notice to the defendant that 
 the estate in his hands was claimed as es- 
 cheated, amounted to little or nothing, when 
 not followed by proceedings to escheat; es- 
 
 pecially when we remember that under the 
 Act to regulate escheats (H Stat. 4li) such 
 proceedings could not be consummated under 
 eighteen months, if so somi. If, in this case, 
 the actual litigation concerning the estate be 
 held to protect the representative of the es- 
 tate from interest, then every executor, ad- 
 ministrator or other trustt'e. who is called 
 to account by suit, niust be saved from in- 
 terest from the beginning of the suit to 
 account. The two ca.ses. principally relied 
 upon in behalf of the defendant. de"i)end on 
 peculiar circumstances, not existing in the 
 present case. In pjue v. Burton, the adnnn- 
 istrator. without being under any trust as 
 to lands, lea.sed certain lands of his intestate 
 to temmts, who were sued for the recovery 
 of the lands and mesne profits, under what 
 proved to be a better title. It was held, that 
 the administi-ator prudently kept in his 
 
 *12 
 hands the rents for *tin- Kinds, to meet the 
 damages likely to be reeovered, in pending 
 suits, from tenants to whom he was respon- 
 sible, and was not liable for interest while 
 the suits were in progress. In Chesnut v. 
 Strong, the (Executor was exempted from in- 
 terest, not actually made, upon proof that 
 by agreement with the lestatt>r. in conse- 
 quence of which he accepted the trust, he 
 was not to be liable for interest. 
 
 Ca.ses are not to be brought witlun an ex- 
 ception to a general rule, whieli are not 
 clearly within the reasons of the exceittion. 
 If a trustee do not choose to use the funds 
 in his hands, and there be probable demands 
 against the trust estate, it is Ins duty to ap- 
 jily to the Court, as indicated in Black v. 
 Blakely. for leave to surrender or deposit the 
 funds; otherwise, except in rare instances, 
 it must be inferred that he has made, or 
 ought to have made, iirolit from tiie funds, 
 eipiivalent to interest. It is ordered and de- 
 creed, that the exception be sustained, antl 
 that the report be recommitted to the Com- 
 nnssioner for the consetpient moiliiieation. 
 I think defendant should be exempt from 
 costs. i;j ^'es. 402. 
 
 The defendant apiiealed and movetl this 
 Court to reverse the decree on the ground: 
 That the defeiulant is not liable for in- 
 terest on the money retained in his hands 
 as adnnnistrator .)f the estate of Daw.son 
 Wages from .\ovendier. l.S4(;. and April. 1.S47, 
 to the ternnn.ition of the proceedings in.sti- 
 tuted to establish the will of tlu- .said Daw- 
 son Wag«'s. 
 
 Black. Arthur, for the motion, cited 2 
 Mad. 11(1; Bail. Imi. 4(10. 4S7; 1 McC. Ch. 
 247; 2 Wms. on Exors. l.'UtJt 
 1 B. iV: B. r.tl. 
 
 (;regi 
 
 Ch. :;77 
 
 12 \es. 3S(i 
 
 l»i> S;iussure. contra, cited 2 Hill, 
 
 The opinion of the Court was delivered bv 
 
 WAItHEAW. Ch. We are content witli the 
 general reasoning of the Circuit decree, and
 
 42 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 with the conclusion attained, that, granting 
 the defendant kept the funds in liis hands 
 without profit, he must paj' interest, since 
 
 *13 
 no exigency of the estate *entrusted to liis 
 management rendered it prudent that he 
 should so retain the funds. No debt of the 
 estate remained unsatisfied, and there was a 
 clear balance in tlie administrator's hands, 
 which was claimed by various persons in dif- 
 ferent rights. The obvious duty of the de- 
 fendant, under such circumstances, was, to 
 file a bill of interpleader against all the ad- 
 verse claimants, and to pay the money into 
 Court. If this course had been adopted, and 
 the litigation had seemed likely to be of long 
 duration, the Court, on the application of 
 any of the parties, or sua sponte, might have 
 ordered the investment of the money in se- 
 curities bearing interest. Every man is pre- 
 sumed to know tlie law ; and if trustees, who 
 are in fact ignorant of the law, will act up- 
 on their blind judgments without consulting 
 the expert, they must bear the consequences 
 of their rashness. It may be remarked, that 
 the answer makes no mention of the suit or 
 suits in Equity, and the character of the liti- 
 gation there was not otherwise brought to 
 the attention of the Chancellor, than by a 
 statement at the bar that the suits were 
 for an account of the estate. If the fact be 
 as now suggested, that these were suits by 
 adverse claimants of the estate itself, this 
 fact does not strengthen the defence, for 
 such suits are necessarily dilatory, and if 
 defendant did not wish to use the money, he 
 should have paid it into Court. 
 
 The Chancellor, on circuit, in deference to 
 some observations made in the case of Ches- 
 nut V. Strong, 2 Hill, Eq. 150; 1 Hill, Eq. 
 122, not necessary to the decision of that 
 case treated the allegation in the answer, 
 that defendant had kept the funds in his 
 hands without making interest, as throwing 
 the burden of disproof of the fact upon the 
 plaintiff. Such is not our opinion. 
 
 This allegation, made by way of defence 
 from the payment of interest, is not re- 
 sponsive to an ordinary bill for account, so 
 as to stand for proved until rebutted by two 
 witnesses or etpiivalent evidence. To an- 
 nounce as the doctrine of the Court, that de- 
 fendants to bills of account migut thus by 
 unsupported oath relieve themselves from the 
 charge of interest, would be to tempt to per- 
 jury by the bait of lucre: and I fear we 
 
 *14 
 should *have many answers from trustees 
 alleging the retention of money without prof- 
 it. Such defence is clearly matter In avoid- 
 ance of the plaintiff's case in the bill, and 
 like every other independent defence, must 
 be proved. The negative nature of the state- 
 ment may justify Courts in holding slighter 
 evidence to be sufficient than is required as 
 to most matters of defence, but certainlv not 
 
 in dispensing with all proof. If a trustee 
 show to the Court that in ordinary prudence, 
 from the exigencies of the estate, he should 
 have kept money on hand, this is strong evi- 
 dence in support of his answer that he did 
 so retain money, and needs little, if any, 
 corroboration. In the present case the an- 
 swer was entirely unsupported. These views 
 are consistent with every thing decided in 
 Chesnut v. Strong, although opposed to a 
 train of reasoning there. In that case, the 
 testator by his will in express terms allowed 
 his executors to retain the legacies to his 
 children, who were the plaintiffs, until the 
 children attained the age of twenty-one 
 years ; although he did not give to the execu- 
 tors the interest accruing in the interval be- 
 t\\een his death and the maturity of the chil- 
 dren. Parol evidence, (of doubtful compe- 
 tency,) established the existence of an agree- 
 ment between the testator and executors, that 
 they were not to be charged with interest, 
 and that they accepted the executorship on 
 that condition. There was also evidence, 
 that the executors had in one instance lent 
 money without interest, and in another had 
 refused to accept full interest ; and that they 
 generally had the money on hand. Upon 
 this strong evidence in supiwrt of their an- 
 swer, the executors were excused f''om in- 
 terest which they did not make, and were re- 
 quired to pay so much interest as they re- 
 ceived. 
 
 It is ordered and decreed that the decree 
 be affirmed and the appeal be dismissed. 
 
 .JOHNSTON, DUNKIN and DARGAN, CC, 
 concurred. 
 
 Decree affirmed. 
 
 5 Rich. Eq. *I5 
 
 *J. M. I SON, Administrator, and Others v. 
 JACOB I SON and THOMAS E. I SON. 
 
 (Columbia. Nov. and Dec. Term, lSo2.) 
 
 [Eqiiiti/ <g=::>340.] 
 
 Bill for settlement uf an intestate's estate 
 sought to charge the defendant with a stallion 
 as an advancement: defendant's answer admit- 
 ted the gift, and alleged that he had paid his 
 father for the stallion: — Held, that ilefendaut's 
 answer as to the payment, was not evidence for 
 him; and McCaw v. Blewit, 2 McC. Ch. 101, 
 overruled on this point. 
 
 [Ed. Note. — Cited in Barr v. Haseldon, 10 
 Rich. Eq. 62; Cloud v. Calhoun. 10 Rich. Eq. 
 366; Barksdale v. Hall, 13 Rich. Eq. ISS. 
 
 For other cases, see Equity, Cent. Dig. § 700 ; 
 Dec. Dig. (©=3340.] 
 
 [Descent and Distrihution <S=>96.] 
 
 Though a gift for the purpose of pleasure 
 or amusement merely, as of a saddle horse, a 
 buggy, «S:c., is not considered an advancement ; 
 yet the gift of a stallion, to be employed as a 
 foal-getter and for profit, is an advancement. 
 
 [Ed. Note.— Cited in Rees v. Rees, 11 Rich. 
 Eq. lOS ; Rickenbacker v. Zimmerman, 10 S. 
 C. 121. 
 
 For other cases, see Descent and Distribution, 
 Cent. Dig. § 394: Dee. Dig. <£3=>!»6.] 
 
 6 
 
 ®=;jFor other cases see same topic and KEV-NUMDER iu all Key-Numbered Digests and Indexes
 
 ISON V. ISDN 
 
 *17 
 
 {Deacent atnJ Disfrihiitiun C=3ll-_M 
 
 In asccitiiiniii;,' tli.- am.miit of an advanoc- 
 raent, n'fcri-iicc .slxmld I,.' had to tin- dt'scrip- 
 tion of the tliatttl at the time of tlic ^ift, and 
 tlie valiu' of u rliattel of tliat description at the 
 death of the intestati-: McCaw v. HIewit, '2 
 AIc-C. (Ml. 10:j, is, on this |>.iint, a h-adin? oase. 
 
 |Ed. Note.— rited in .Mil. me v. Steeh', 14 
 Huh. K(|. IKJ: Wilson v. Kelly. L'l S. C. o.'J'J. 
 
 For other cases, see Descent an<l I Mstributiou. 
 Cent. Dig. § 421: Dec. Dii;. C=>lll.'.i 
 
 IDcscrnt and DixtrUiHtion <S=3!»."».l 
 
 -V distributee is not charueaiile, as for an 
 
 '><l\!>iice nt. with the rent of land which the 
 
 intestate had perniittcd him to occupy. 
 
 |Kd. Note.— Cited in Hickenhacker v. Zininier- 
 nian, 10 S. C. 115: Wilsuii v. Kdlv, L'l S C. 
 n4(». 
 
 For other cases, see De.scent and Distribu- 
 tion, Cent. IMj:. § :VX\\ Dec. Dig. (S=lir..] 
 
 IJetoie Johnston, Cli., at T'nion. June 1S52. 
 This cn.st' came up un exceptions to the 
 Coiuiiiissidiier's report, which is a.s foUow.s: 
 '"Your Couiniissioiier, to whom it was re- 
 ferred to take into account and to reiJort 
 upon the receipts and expenditures of the 
 administrators, ]{. W. Lee and J. M. I.son, 
 and al.so to ascertain the advancements made 
 to the distributees of Frederick Ison, hetrs 
 leave to report : that the intestate died some 
 time in the Fall of l.S45. and the plaintiffs, 
 B.' W. Lee and J. M. Ison, shortly tlu'ieafter 
 took out letter.s of administration, and sold 
 the personal estate. 
 
 "A few days previous to the death of the 
 intestate, he (ailed all his children around 
 him, and attempted to e<iualize them by ad- 
 vancements ; and on this occasion he, by way 
 of advancement, save to each one of them one 
 or more negroes, with tlie exceiitii»ii oC the de- 
 fendant, Jacob Ison, and charged them ac- 
 cording to Exhibit A, in compbiinants' bill, 
 with which it is understood they all, with 
 the exception of Jacob, acipiiesced at the 
 time, and with which each one, with the 
 .same exception, is still willing to be charged. 
 *16 
 *"The bill charges an additional advance- 
 ment of a stallion, against Thomas K. Ison, 
 or alleges that a recovery of one Smithpeter, 
 on a note (given by the intestate in his life- 
 time.) against the administrators, was for 
 the purchase money of a stallion which 
 Thomas E. Ison received from the intestate, 
 and which Thomas had promised his fatlier 
 he would iiay. 
 
 "On this subject there was no proof, ex- 
 cept what is contained in his answer, in 
 which lie admits that he received the horse 
 from his father as a gift, but says the gift 
 was made to equalize him with the other 
 children, who had all received from their 
 father one or uuu-e horses. As to this aver- 
 ment in tlie answer, there was no jiroof. I'.ut 
 the defendant .states further in his answer, 
 that he took the horse, or acceptt'd him. on 
 condition that he was to pay his father for 
 bim the amount his father was to pay Sniitli- 
 Iieter, which he afterwards did; that h«' took 
 
 the horse with this understanding, and prom- 
 ised his father that he would stand him, and 
 that if he could make any thing out of him, 
 he would i»ay him the amount he was to pay 
 Smithpeter; that he stood the horse fmm the 
 date of the purchase, in \s:V2, for .several 
 years, and after deducting neee.-jsary ex- 
 penses, and charging nothing for his trouhle, 
 he pai<l the i»niieeds to the intestate, partly 
 in cash, and partly In notes an<l accounts, in 
 the whole amounting to !?.'J0.">.:)1 VL-. which is 
 more than he originally undertook Xo pay — 
 that he snbseipiently .sold (he horse for $250. 
 "The evidence on tliis point was from one 
 witness, that he put two or three mares to 
 the horse, and settled for the season with 
 the int«'state— that he also owed the defend- 
 ant, Thomas E. Ison, ten or fifteen dollars 
 for work on a gin, which he also paid to the 
 old man. He proved by another witness, 
 that in \s:\W or 1S40, the int«'state was in- 
 del)ted to the witness, and that Tliomas E. 
 Ison paid him fifty or .sixty dollars of the 
 debt, <»r laid down his money on a talde. and 
 told his father to take what he wanted, who 
 took the amount stated. 
 
 "Taking the case altogether, the Commi.s- 
 sioiier is not of the o|>inion that Thomas E. 
 Ison should be charged with the horse. 
 *17 
 ♦Exception on the part of Jacob Ison was 
 taken as follows: 
 
 Because the report does not charge Abraiii 
 Ison and John Ison with rent of land on 
 which they "have lived and rai.sed their fam- 
 ilies — the rent of which, as t(» each, was 
 proved to have been worth thirty or forty 
 dollars a year and for which they should ac- 
 count, to do justice to the other heirs at 
 law. 
 
 The complainants also ex<eitted to the re- 
 port on the ground. 
 
 Becaii.se the Commissioner, in making up 
 his report, does not charge Thomas E. Ison 
 with the price of the stalli(ui given to him 
 by the intt'state. as he admits in his answer 
 that he rei-eived it as a gift, and there is no 
 proof of any payment being made by him for 
 the .said horse. 
 
 Johnston, Ch. On hearing the report of 
 the Commissioner in this ca.se. tlie exception 
 filed by the plaintitTs. and the exception tiled 
 by the defendant. Jacob Ison. It is ordered 
 that (he exceittiou of iilaintiffs be sustained; 
 and that the exception of the defendant. Ja- 
 cob Ison. be overruled. 
 
 Thomas E. Ison appealed upcui the grounds: 
 
 1. l'.e<ause the answer of the d»'feiidaiit, 
 admitting the advancement, but alleging ]iay- 
 nient of it. being strictly responsive to the 
 bill, was evidence in his favor and should 
 liavt' been admitted as such, and the whole 
 taken and construed together. 
 
 2. Because his Honor erred, it is respect- 
 fully submitted, in holding, that where the 
 defendant charges hiniself. by his own oath. 
 
 ®=^Kor oUkt cases see same topic aud KliV-NUMBER iu all Key-Numbered Digests and Indexes
 
 *17 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 with a debt, his statements alleging that the 
 same is paid, are not evidence in his favor, 
 but must be supported by testimony inde- 
 pendent of his own oath. 
 
 3. Becanse the property charged as an ad- 
 vancement in this case, from its nature and 
 character, cannot rank as an advancement, 
 in the sense in which the statute uses tlie 
 word; not being given "in anticipation of 
 what he might inherit," or "with a view to 
 his settlement in life." 
 
 4. Because there is proof before the 
 Commissioner, that sundry payments had 
 been made by the defendant, Thomas E. Ison. 
 to the intestate; and as there was no evi- 
 
 *18 
 dence or pre*tence of any other indebtedness, 
 they should be held and deemed as having 
 been made in payment of this debt; and that 
 upon this point the case should have been 
 re-committed to the Commissioner, to ascer- 
 tain and report upon the payments made. 
 
 5. Because the acts and declarations of the 
 intestate, done and made on the 2d Septem- 
 ber, 1845, as alleged in complainants' bill, 
 are conclusive evidence, and amount to an 
 admission by the intestate, that this debt 
 against Thomas E. Ison was paid, as there 
 Avas no charge raised against him at this 
 time, which point his Honor did not advert 
 to in his decretal order. 
 
 Jacob Ison also appealed on the ground: 
 Because the Chancellor should have sus- 
 tained his exception. 
 
 Arthur, for Thomas E. Ison. 
 Thomson and Jeter, for Jacob Ison. 
 T. N. and J. Dawkius, for plaintiffs. 
 
 The opinion of the Court was delivered by 
 
 JOHNSTON, Ch. The appeal of Thomas 
 E. Ison is founded entirely in misconception. 
 
 This defendant, in his answer admits the 
 gift of the stallion; and whatever he says 
 afterwards, of payments made for him was 
 matter in avoidance: and is not proved by the 
 answer, — but must be established by evidence 
 aliunde. This is the clear and well establish- 
 ed rule on the subject. We have observed, 
 with regret, that of late, a decision in the 
 case of McCaw v. Blewit (2 McC. Eq. 101-2,) 
 has been cited by the bar as authority to the 
 contrary. However important and valuable 
 that case may be, on other points, — on this 
 point it is clearly erroueous, and has never 
 been followed; and we have no hesitation in 
 overruling it. 
 
 The question, whether a stallion is an ad- 
 vancement, is one of easy solution, in this 
 case. It is admitted that gifts, or contribu- 
 tions, made by a father to his child, for the 
 purpose of pleasure or amusement merely, 
 are not, in their nature, advancements. A 
 saddle horse, a buggy or like articles, if given 
 with no view to profit, but merely for the 
 
 *19 
 
 gratificati-m of the child, *do not come with- 
 in the idea of having been bestowed on him 
 "in anticipation of what he might inherit," 
 or "with a view to his settlement in life.'Vc) 
 But the gift of a stallion to be employed, 
 as in this case, as a foal-getter and for prof- 
 it, — is the gift of a tangible portion of the 
 father's estate, as so much capital: and, 
 whatever difficulty may exist on this general 
 head of law, in other instances, is certainly 
 an advancement in this case. 
 
 Certainly, in ascertaining the amount of 
 this advencement, reference should be had to 
 the description of the horse at the t'vne of 
 the gift, and the value of a horse of that de- 
 scription at the death of the intestate. The 
 rule is laid down in McCaw v. Blewit. (2 
 McC. Eq. 10.3-4,) which is the leading case, 
 in this State, upon the subject; and has al- 
 ways been followed in subsequent cases. 
 
 The decision of the Chancellor was merely 
 that the stallion was an advancement; not 
 the amount to be charged for him. That is 
 for the Commissioner, on further considera- 
 tion of the report. 
 
 The Court concurs with the Chancellor in 
 refusing to charge certain distributees whom 
 the intestate had permitted to occuty por- 
 tions of his land, with rent, as an advance- 
 ment. If they owed him for the rent it was 
 a debt. If he charged nothing for the oc- 
 cupancy, (as was the fact.) the permission to 
 occupy was a mere accommodation, and no 
 advancement. An advancement always em- 
 braces the idea, that the parent has parted 
 from his title in the subject advanced. But 
 if the intestate, in this instance, had actually 
 given the land, the statute expressly exempts 
 the donee from accountabilitj' for the rent: 
 much more are the parties exempt, where 
 tlie whole matter was simply permissive, and 
 the object was mere accommodation. 
 
 It is ordered that the decree be affirmed, 
 and the appeal dismissed. 
 
 DUNKIN, DARGAN and WARDLAW, CC, 
 concurred. 
 
 Appeal dismissed. 
 
 (a) Vide Rouv. L. Die. Advanconients, and 
 McCaw V. Blewit, 2 McC. Eq. 102-3. 
 
 5 Rich. Eq. *20 
 
 *HESTER BERDRIAT' and Others t. 
 HENRY H. WELLS and 
 
 Others. 
 
 (Columbia. Nov. and Dec. Term, 1852.) 
 
 [Wills <©=>531.] 
 
 Testator bequeathed pi-dperty to his wife 
 for life, and directed the same, after her death, 
 to be divided between Ann M., the children of 
 his brother Peter, and the children of his sister 
 Hester, "alive at the death of my wife, share 
 and share alike, for and during their natural 
 lives, and after their death to their respective 
 
 ®=^Uor other cases see same topic and KE Y'-NUAIBER in all Key-lsumbered Digests and Indexes
 
 PERDRIAU V. WELLS 
 
 **22 
 
 children forever. Tt is my will, tiiat if the 
 snifi Ann M.. I'ithir <.f tht- ciiildreii of my 
 broth»T rcter. <tr sistir Hester, shniild die in 
 my life time, or th< life time of my .said wife, 
 that the eliild or children df siieh nne or more 
 of thi-m as may so die. take the |»ni-t nf their 
 deceased parent." I'eter and Hestir, the broth- 
 er and sister of testator, were hotli dead when 
 the will was exeinted: at that time, and at tiie 
 death of testator, there were eij;ht children of 
 I'cter, and li\<' uf Hester, livin;;: testator's 
 wife also siirvivetl him: — Held, that, at the 
 termination of the life estate. Ann ^L and the 
 children of I'eter and Hester will take e(|ually 
 and per capita— the <'hildii'n of sncii as inaj' be 
 dead takinji their |tarent's share. 
 
 |Kd. Note. — Cited in Uarksdale v. Macbeth. 7 
 Rich. E(i. 1:54; Hislier v. Adams. <l Rich. E<i. 
 241>: Dupont V. Hnt.hinson. 10 Rich. E(|. 1» ; 
 Tindal v. Neal. ;".!» S. ('. 7. .".C, S. E. 1004; 
 Robinson v. Harris, ~'.\ S. C. 477, 5.'} S. E. 7"»o, 
 
 f. L. R. A. (.\. s.) :::;o. 
 
 For other casi-s. see Wills. Cent. Di^. § 1150; 
 Dec. Dig. ®=35."1.1 
 
 Refore Dargaii, Ch., at Clnunbors, Deceiu- 
 bor, 1S51. 
 
 r;iiiuu'l Perdriaii. of Siinitor. the testator, 
 (!i(':l in the year 1S4.'!. His will, which was 
 c:c. 11*1(1 ami dated July lij, 1S41.', was drawn 
 several years before its execution, and while 
 liis sister Hester Wells was alive. She, how- 
 ever, had died before it was executed. The 
 material clauses are as follows: 
 
 "First. 1 devise and beiiueatli luito ni.v 
 brotlier John Perdriau's widow, Mrs. Ann 
 Perdriau, for the term of her natural life, 
 the u.se of my winter idantation, situate in 
 Williamsburjih District, whereon she now re- 
 sides. 
 
 "Second. It is my will and desire that my 
 nef,'roes and other jtersonal estate be kei)t 
 tof^ether on my plantation whereon I now re- 
 side in Sumter District, and are not to be 
 removed therefrom dm'ini; the life of my 
 beloved wife, Hester I'erdriau. to whom I 
 give, bequeath and devise the said plantation, 
 negroes, .and all other my real an<l personal 
 estate, of whatever nature, descrii»tion or 
 kind, for and during the term of her natural 
 life. I also devise, be(pieatli and give to my 
 said wife one-half of the .said real and per- 
 sonal estate to be disposed of by her, by will, 
 hut if she make no will, then to be delivennl 
 to her representatives. Her said half is not 
 to be allotted off to her in her life time, but 
 to be delivered after her death to hi-r execu- 
 
 *21 
 tor or ♦administrator. The other half of my 
 said real and personal estate, (given to my 
 said wife for her life time,) I will and devise 
 be sold Ijy my acting executor, on such terms 
 as he may think proper. Rut it is my wish 
 and desire that my negroes be sold in fami- 
 lies, that is to say, that husband and wife 
 and young children not to be parted, but 
 to be sold together. 
 
 "The proceeds of said sale of tlu> said 
 half of the estate, given as aforesaid to my 
 wife for life, to be divided between Ann M. 
 China, wife of John China, .jr., the children 
 of my decea.sed brotlier, Peter Perdriau, and 
 
 al.so the children of my sister, Hester Wells, 
 alive at the death of my wife, sbau and 
 share alike, for and during the term ol their 
 natural lives, and after their death, to their 
 respective children forever; the parts «"f the 
 females, my nieces and Ann >L China, to be 
 to their sole and separate use. It is ni> will 
 I that if the said Ann M. China, either cf the 
 children of my brother Peter or sister Hes- 
 ter, should die in my life time, or tliv life 
 time of my said wife, that the child or chil- 
 dren of such one or more of them as may 
 so die. take the part of the deceased parent. 
 It is further my will that the share that my 
 lu'idiew, James Perdriau, may have allotted 
 to him, be delivered to Ann L. Clark, as 
 his trustee, to be managed for him, she giv- 
 ing to him such iiart thereof as slu' may 
 deem neci'ssary from time to time. I do 
 hereby authorize and emi>ower my acting 
 executor to apiioint five persons, (any three 
 to act, if all cannot attend,) to divide my 
 estate after the death of my .said wife, and 
 do all such other acts as may be ne<essar.v 
 to carry this my will into full effect. a.*5 
 fully as if he were authorizt'd by the Court 
 of Ordinary or E«|uity. " 
 
 The children of Hester Wells and Peter 
 I'erdriau, who were living when the will 
 was executed and at the death of the tes- 
 tator, weri' Mary E. Linam, Hester Harvin, 
 Richard F. Wells, Peter E. Wells. Warren 
 S. Wells. Henry H. Wells. .Martha P. Tin- 
 dall and Lydia A. Tindall. children of Hes- 
 ti'r Wells, and James I'erdriau. Hester Ram- 
 sey. Ann J,. Clark. Lydia A. Evans and .Mary 
 (J. Harrett. children of Peter Perdriau. Of 
 these thirteen persons, three had died since 
 the testator, each leaving issue, to wit. Mar- 
 
 *22 
 tha P. Tindall. *who left three children. 
 Lydia A. Tindall. who left (Uie child, and 
 Mary G. Rarrett, who left eight children. 
 
 The bill, which was filed by Hester I'er- 
 driau, the widow of the testator (Ann M. 
 China and all other persons interested be- 
 ing i)arties) prayed that the slaves of testa- 
 tor, some eighty in number, might be .sold 
 by order of the Court; and (the said Hester 
 Perdriau having consented to reliiKpiisb her 
 Interest for life in one-half) that the pro- 
 ceeds be divided, "by allotting one-half there- 
 of to the said Hester Perdriau, as her own 
 right and proi)erty: and the other half to 
 the persons entitled to receive the same as 
 at h»'r death. In the proportions [)rescrilied 
 by the said will." 
 
 His Ihmor made an order for the sale of 
 the slaves by the Commissioner, on credit — ■ 
 bonds with good sureties to lie given by the 
 purchasers:— and, in relation to the division 
 of tln> jinxeeds, he decreed as follows: 
 
 "That on receiving the said bonils, the 
 Commissioner do deliver over so many of 
 the same as will equal one-half of the 
 amount of the said sale, to the said com- 
 plainant, Hester Perdriau, iu full discharge
 
 *22 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 of all her right and interest under the said 
 will, to and in all the said negro property 
 to be sold ; and that when collected, he di- 
 vide the proceeds of the l)alance of the said 
 bonds into three equal parts — one part 
 thereof to be the share of the said Ann M. 
 China ; another third part thereof to be the 
 share of, and to be equally divided between 
 the children of the said Peter I'erdriau. liv- 
 ing at testator's death, and of the children 
 of such of the children of the said Peter 
 Perdriau. as may have died since the tes- 
 tator — the last to take, among them, the 
 share the parent would have taken if alive; 
 and the other third part to be the share of, 
 and to be equally divided between the chil- 
 dren of the said Hester Wells, living at tes- 
 tator's death, and of the children of such 
 of the children of said Hester Wells as may 
 have died since the testator, the last to take 
 among them the share the parent would 
 have taken, if alive." 
 
 From so much of the decree as is recited 
 *23 
 above, Richard F. *Wells and others appeal- 
 ed, and moved this Court that the same 
 be so modified, that Ann M. China, instead 
 of taking one-third part of said proceeds, 
 shall take one-fourteenth part thereof; that 
 each of the four children, now living, of 
 P'eter Perdriau, deceased, and each of the 
 six children, now living of Plester Wells, 
 deceased, shall take one other fourteenth 
 ]tart thereof; that the children of Mary G. 
 Barrett, deceased, shall take, among them, 
 one other fourteenth part thereof ; that the 
 children of Martha P. Tindall, deceased, 
 shall take, among them, one other four- 
 teenth part thereof; and that the child of 
 Lydia A. Tindall, deceased, shall take the 
 remaining fourteenth part thereof. 
 
 Richardson, for appellants. The only 
 question presented by the api^eal is as to the 
 proportion in which the parties take ; that 
 is to say, Does Ann M. China take one-third, 
 the children of Peter Perdriau one-third, 
 and the children of Hester Wells the re- 
 maining third, as the Chancellor has de- 
 cided; or do they all take equally and per 
 capita, as the appellants contend? 
 
 It is proper, perhaps, in the first place to 
 remark, that the recent decisions in Tem- 
 pleton V. Walker (3 Rich. Eq. 543) and Col- 
 lier V. Collier (Id. 55.5) have no application 
 whatsoever to this case. Those cases were 
 decided on the principle, that inasmuch as 
 the testator has himself made it necessary 
 that resort should be had to the statute of 
 distributions for the purpose of ascertain- 
 ing the objects of his bounty, resort must 
 also be had to the statute for the purpose of 
 ascertaining the proportion in which they 
 take. Here the testator has made no ref- 
 erence to the statute necessary. WTio the 
 children of Peter Perdriau and Hester Wells 
 are, can be known without resort to the 
 statute of distributions. 
 
 10 
 
 There is but one class of decisions which 
 has direct application to the case now be- 
 fore the Court, and that is the general class, 
 where there is a Ijequest or devi.se to a des- 
 ignated individual and to a class or classes 
 of individuals. P>ut this general class is 
 subject to a sub-division, which, to avoid 
 circumlocution, will be called class No. 1 
 and cla.ss No. 2. 
 
 Class No. 1. To this class l)elong the ca.s- 
 *24 
 es which fall wi.th*in the following princi- 
 ple, as laid down by Chancellor Harper, in 
 Cole V. Creyon (1 Hill, Ch. 319.) "If tliere 
 be a bequest to an ascertained individual 
 and to a class of unascertained individuals (to 
 be ascertained at some future time after the 
 death of the testator) it vests one-half in 
 the said individual and the other half in 
 the individuals of the class collectively 
 when they are ascertained." To this cla.ss, 
 in addition to the case of Cole v. Creyon, 
 belongs the case of Conner v. Johnson, (2 
 Hill, Eq. 41.) Cole v. Creyon furnislies an 
 illustration of the rule. There the bequest 
 was to testator's wife for life, and after 
 her death to Alexander Creyon and the chil- 
 dren of Elizabeth Cole. Eliabeth Cole was 
 living at the death of the testator. It was 
 held, that all the cliildren of Elial)eth Cole 
 born after the death of the testator and be- 
 fore the death of the tenant for life, were 
 entitled to come in. and tliat as the in- 
 dividuals were unascertained when the tes- 
 tator died. Alexander Creyon took one-half 
 of the property bequeathed, and the children 
 of Mrs. Cole the other half. 
 
 Class No. 2. To this class belong the cas- 
 es which fall within the following rule: "If 
 there be a devise to an individual designat- 
 ed by name and to other individuals designat- 
 ed as a class, as to A. and the children of 
 B; or if it be to the children (if A and the 
 children of B, all the individuals take equal- 
 ly and per caitita.'' Per Chancellor Harper 
 in Conner v. Johnson, (2 Hill. Eq. 43.) To 
 this class belong the cases of Blackler v. 
 Webb, (2 P. Wms. 283.) Butler v. Stratton, 
 (3 Bro. Ch. Rep. .3G7.) and Lady Lincoln v. 
 Pelham, (10 Ves. 176.) Butler v. Stratton 
 furnishes an illustration of the rule. There 
 the devise was to "John Stratton and Rob- 
 ert Stratton and the children of Mary Pat- 
 terson." Mary Patterson had four children 
 living at the death of the testator. Held, 
 that they all took equally and per capita. 
 
 Tlie only remaining (juestion seems to be, 
 to which of these classes does the case now 
 before the Court belong? If to class No. 
 1. then the decision of the Chancellor, at 
 Chambers, was right: if to class No. 2, then 
 
 *25 
 the decision was wrong and the *appellants 
 are entitled to have the decretal order so 
 modified that the parties shall take equal- 
 ly and per capita. 
 
 It is so plain that this case belongs to
 
 PKRDRIAU V. WELLS 
 
 *27 
 
 class Xo. 2, that It Is scarcely lU'ccssary to 
 discuss the question. IVter renlriau aiul 
 Hester Wells haviiij; both died liefore the 
 testator (they \v*'re both in fa<t dead when 
 the will was execut«'di could of course have 
 no children born after the <leath of the tes- 
 tator, as was the case in Cole v. Creyon. The 
 individuals tlu'refore of liotli the elasses (that 
 is. the children of Teti-r I'erdriau and Ih'ster 
 Wells) were as certaiidy desij,'nated and as 
 much ascertained, at the death of the tes- 
 tator, by the terms of description used in 
 the will, as was Mrs. Ann M. China lierself. 
 
 But it may be said, that the e.\i)ression. 
 "alive at the death of my wife," brinj^s this 
 ca.se back aj^ain within the rule of class 
 No. 1. It should be observed that that ex- 
 pression ai»i»lies as well to .Mrs. China as to 
 the children of Teter I'erdriau and Hester 
 Wells. To take under the will she also must 
 be alive at the death of the tenant for life. 
 
 That expression may be held to make the 
 remainders continirent ; but the question is 
 not, whether the remainders are t-ontiiifient, 
 but whether the incMviduals are ascertained. 
 Sir William Blackstune divides contintient re- 
 mainders into two classes: 1st. Where the 
 remainder is "to ti; dubious and uncertain 
 person." and I'd where it is to take effect on 
 "a duI)ious and unctTtain event." 2 Bl. Com. 
 1C!>. At paf;e 170 he jrives an illustration of 
 the 2d class, and it is the very case before 
 the Court: "Where." says he, "land is given 
 to A for life, and in case B survives him, 
 then with remainder to B in fee; here B 
 is a certain person, but the remainder to him 
 is a contin.uent remainder, depending' upon a 
 dubious event, the uncertainty of his surviv- 
 ing A." 
 
 It may again be said, that, in tlie event of 
 the death of a child before the tenant for 
 life, umiseertained legatees are substituted 
 in the place of such child : but that can hard- 
 ly make any diftereiice in the construction 
 when the same objection ajiplies to the be- 
 quest to Mrs. China herself. Should she die 
 
 *26 
 in *life time of the tenant for life, Mrs, 
 Terdriau, unascx'rtained legatees, to wit, her 
 children, take her place. 
 
 Much might be said upon the particular 
 words of the will, and espt'cially upon the 
 «'Xpression "share and share alike;" but, 
 upon the views above taken, it is subndtted 
 that the appellants are entitled to their 
 motion. 
 
 De Saussuri', for Mrs. China, cited I .larm. 
 <in Wills, 277, and note, and contended, that 
 as to the objects of a testattir's bounty and 
 the proportion in which they shall take, a 
 will speaks from its date, or the time it is 
 drawn. When the testator here drew his 
 will. Hester Wells, his sister, was alive. 
 It could not, therefore, have l)een known, 
 then, but that she would have other children 
 and survive both the testator and his wife, 
 
 the life tenant. The objects of the testator's 
 bounty were, therefore, so far as the chil- 
 dren of Hester Wells were concerned, unas- 
 certained at the time of the draft of the will ; 
 and, in this view, he submitted that the case 
 was within the principle upon which the case 
 of Cole V. Crey(»n was difided. He also con- 
 tended that the words -alive at the death of 
 my wife" did not aiiply to Mrs. China. That 
 they aiiplied to the children of I'eter IVrdriau 
 and Hester Wells, only, and tliey. therefore, 
 were the persons who were to "share and 
 .share alike." 
 
 Moses, for the iilaiiititTs. 
 
 The opinion of the Court was delivered by 
 
 .KUl.NSTON. Cli. SmmiucI rcidriaii. liy 
 his last will, gave bis negroes .and other per- 
 .sonal proi)erty. and the plantation on width 
 he resided, to his wife Hester, during lier 
 natural life. And. at her death, he directed 
 that one-half thereof be delivered to her 
 next of kin. 
 
 The other half he directed to be .sold by 
 his executor: and that "the proceeds of said 
 sale (of the said half of the estate"'* "be 
 divided between Ann M. China, wife of John 
 China, jr.. the children of my det-eased broth- 
 er I'etiM- Terdriau, and. also, the children of 
 my sister Hester Wells, alive at the death of 
 my wife, share and share alike, for anil dur- 
 
 *27 
 lug the term of their *natural lives, and alter 
 their death, to their respective children, for- 
 ever: — the parts of the fenuih's. my ideces 
 and Aim .M. China, to be to their sole and 
 separate use. It is my will," he priiceeds, 
 -if the said Aim M. China |or| either of the 
 children t)f my brother I'eter or sister Hester 
 I should die in my life time, or the life time 
 i of my said wit\'. that the child, or children, of 
 such one or more of them as may so die, take 
 the part of the deceased parent." 
 
 This bill was tiled by Hester, the widow 
 of the testator, to obtain the assent of the 
 Court to her relimiuisbing one-half of the 
 negroes,— for a sale of that half, and for a 
 present distributiiui of the proceeds among 
 the parties to whom they were bequeathed 
 at the expiration of the life estate. 
 
 A decree to that eftect has been obtained, 
 from which no apiK'al is taken except upon 
 one single point. The decree divides the pro- 
 ceeds of sale into three iHiual parts, and di- 
 rects one of them to be allotted to Ann M. 
 China, one to the children of I'eter I'erdriau, 
 and one to the childn'U of Hester Wells. The 
 appellants contend, that Ann M. China, in- 
 stead of taking one-third part of said pro- 
 ceeds, should take oidy an t^pial i»art with 
 each of the children of I'eter I'erdriau and 
 Hester Wells: (the issue of any dece.ised 
 party to reprt'sent that party, a<-cording to 
 the will.) 
 
 In my opinion tlie apin'al is well taken. 
 
 It is a njaterijil circumstanc-e in this case, 
 
 U
 
 «27 
 
 5 RICHAllDSON'S EQUITY REPORTS 
 
 that at the death of the testator, Teter Per- 
 driau and Hester Wells, his brother and sis- 
 ter, for whose children his will was intended 
 to provide, were both dead: and their chil- 
 dren were then so ascertained, that no addi- 
 tions could be made to their nunil)er. 
 
 If the testator, under these circumstances, 
 had given an estate directly and uncondition- 
 ally, and not suspended upon any prior es- 
 tate, to Mrs. China and the children of his 
 deceased brother and sister, it is clear that 
 she and they would have taken each an equal 
 shaTe. As is said, in Conner v. Johnson, 2 
 
 *28 
 Hill, Eq. 43, "if *there be a devise to an in- 
 dividual, designated by name, and to other 
 individuals,, designated as a class: as to 
 A and the children of B— or if it be to the 
 children of A and the children of B — all take 
 equally and per capita." See also Blackler v. 
 Webb (2 P. Wms. 2.s:j;) Lincoln v. Pelham, (10 
 Yes. 176 ;) and Butler v. Stratton, (3 Bro. Ch. 
 R. 307.) The latter case serves as an ilhistra- 
 tion of the rule. The devise was "to John 
 Stratton, and Robert Stratton, and the chil- 
 dren of Mary Patterson." Held, that they all 
 took equally, per capita. 
 
 The combination of the name of a partic- 
 ular individual with classes of cliildren, under 
 such circumstances, cannot produce any effect 
 other than would follow, if the bequest were 
 simply to two or more classes of children. 
 The division must be per capita. A case of 
 the latter description is furnished in Ex parte 
 Leith, 1 Hill, Eq. 153, where the devise was 
 of "two shai'es to my deceased sons' (William 
 and James's) children." Without much re- 
 liance on the words "equally to be divided be- 
 tween them," which followed ; it was held, 
 that the two shares, considered as amal- 
 gamated, were to be divided among all the 
 children per capita. 
 
 If all the legatees be ascertained at the 
 time of the gift, and the gift be direct and 
 unconditional, then, taking by purchase, they 
 must take, each, an equal share. I know 
 of no exception to this rule, except the late 
 cases of Templeton v. Walker. 3 Rich. Eq. 543 
 [55 Am. Dec. 64G], and Collier v. Collier, 
 3 Rich. Eq. 555 [55 Am. Dec. 653]. But these 
 cases have, in fact, no application to the prin- 
 ciple I am now considering. Those cases 
 proceed on the principle, that, where a testa- 
 tor has given to the "heirs" of a particular 
 individual, it being necessary to resort to the 
 statute to ascertain who the heirs are, it may 
 be resorted to for the additional purpose of 
 ascertaining the proportion to which the 
 statute would entitle them: — upon the implica- 
 tion, that where the gift is to "heirs," the in- 
 tention is to give them inheritable portions: — 
 that the beneficiaries are to be presumed 
 to stand in the affections of the benefactor, 
 according to the standard to which he himself 
 has appealed. 
 
 *29 
 
 *In the case before us, the testator has 
 12 
 
 imposed no necessity to refer to the statute. 
 Who the children of his Inother and sister 
 are, can be known without resorting to it. 
 And. indeed, whatever information wc might 
 obtain from it, in relation to a division 
 among the children of the brother and those 
 of the sister : it can furnisli none respecting 
 the proper division between them and Mrs. 
 China. So that the cases I have mentioned 
 have no application to the subject now under 
 consideration. 
 
 I have already stated what, in my opin- 
 ion, would be the proper construction, if the 
 bequest in this case were direct and uncon- 
 ditional. 
 
 The bequest is, however, not of tliat char- 
 acter. It is limited upon a prior life estate; 
 and it is conditioned upon the remainder- 
 men surviving the life tenant. Owing to tliis 
 circumstance, it has been supposed to fall 
 within the principle of Cole v. Creyon, 1 Hill, 
 Eq. 311 [26 Am. Dec. 208]. 
 
 I do not think it comes within the prin- 
 ciple of that case. 
 
 There, after a life estate given to the wife 
 of the testator, the bequest was to .Vlexander 
 Creyon and the children of Elizabeth Cole, — 
 testator's married niece, who survived him. 
 
 There are words indicating that tlie di- 
 vision was to be made equall.v between them : 
 which perhaps were too little regarded in 
 the decision. But it is not necessary to at- 
 tend to that. It is the leading principle ad- 
 judged, which we are now to ascertain and 
 apply. 
 
 It was held in that case, that Creyon was 
 entitled to one-half of the estate, and that 
 the other half was divisible between all the 
 children of Elizabeth Cole who came in esse 
 before the expiration of the prior life estate. 
 
 The reasons given for this decision were, 
 — that Creyon, being a person named and 
 not described, took a vested interest in the 
 remainder, at the death of the testator: but 
 that Mrs. Cole's chiklren, taking by descrip- 
 
 *30 
 tion as children, from the necessity *of the 
 case, could take only a contingent interest, 
 their number being incapable of being ascer- 
 tained until the death of the life tenant. 
 This difficulty arose from the period of di- 
 vision being postponed until that event : 
 because the law is familiar, that where a 
 class of described persons are to take on a 
 future event, all who can bring themselves 
 within the description, at that time, are 
 eqimlly entitled to take. There was a con- 
 tingency, therefore, as to the children, but 
 not as to Creyon ; — by which their interests, 
 and not his, were affected. Again : there 
 was a diversity between the parties, in re- 
 spect to the time when their titles accrued. 
 The parties could not take as joint tenants, 
 because the right of Creyon vested in inter- 
 est at the death of Hicklin, the testator, 
 while that of the children remained contin- 
 gent until the death of Ilicklin's widow.
 
 RIDDLE V. KIDDLE 
 
 But. as I read the will i)f reiulriau, there 
 Is no interest of a remaiiKler-man that is not 
 subjt'ct to equal eontiii;:eney. The dillVreiKe 
 i)t't\veen C'reyon and Mrs. t'hina is. that his 
 was a certain and inicontin^ent interest frnm 
 tlie death of tlie testator; lier's is subjected 
 to the same continjiencies as to surviviu'.; tlie 
 life tenant as are ai>i»liiahle to the children. 
 All the contlitions whicli are applied h.v I'er- 
 drian to his brother's and sister's children, 
 he applies also to Mrs. China. The i>or.sons 
 who are to take, are to taUe life estates only 
 with a linntation to issue, and the females, 
 including Mrs. China, are to take se arate 
 estates: and contemi)latin,ir that tliey might 
 not l>e alive at the death of liis wife, which 
 he liad at first view imiiosed as a condition, 
 (and, adding what occurred to him ; — i. e., 
 that they might possibly die in his own life, 
 so as to occasion a lapse,) lie provides that, 
 in either of tliose events, tlieir cliildren, if 
 they left any. should take in their place: 
 not by way of remainder to tlieir life estates, 
 but as substitutes, — and, in that case, ab- 
 solutely. 
 
 The reasons of the decision in Colo v. Crey- 
 on (viz. the fact that tliere was a fi.ved and 
 certain interest in one party and a contingent 
 interest in the others, rendered it nec?ssary 
 to distinguish l>etween them.) do not apply 
 here. 
 
 *31 
 
 ♦When, on the face of the will. T see not 
 only that all parties are put u' on the same 
 footing, but are to "share and share alike," 
 I do not pei'ceive any ground to doubt, that 
 the distribution should be made, as contend- 
 ed for in the ground of aproal. 
 
 It is ordered, that the decree ap' ealed 
 from be modified according to this oiiinion : 
 and that in all other respects it be attirmed. 
 
 DrXKIX and WARDLAW, CC. concurred. 
 Decree modified. 
 
 5 Rich. Eq. 31 
 
 MARY RIDKLK v. .lollX UIUPI.E. Admin- 
 istrator, and Others. 
 
 (Columbia. Nov. and Dec. Teini, IS.IJ.) 
 
 {Executors and Ail »ii nisi rn tors (g=>'J:21.1 
 
 A charge for board made by an administra- 
 tor against infant distributees, who residod with 
 him. he being their undo, r(>je(tod on the proof. 
 
 IKd. Note.— Cited in Crosby v. Cn.shy, 1 S. 
 C. .•;47. .■J4S. ;!4!»: Kxchangf r.ankinu v\i Trust 
 Co. V. Finley. 73 S. C. 4li!», ."):', S. !•:. (;4!). 
 
 For other cases, see K.xoentors and Adminis- 
 trators. Cent. Dig. §§ JX)l-<.)0:;i/,. ISfiS. 18(51- 
 ls<;:}. 1S65, imG, 1S71-1S74, IST-C. : Dw. Din. 
 
 \lj.rrrutors anil Aihtiinisfrdiurs C=.';i;{.l 
 
 The plaintifT, a distribntiT, h.-iviicj; been un- 
 reasonably tardy in tlit" assertion of her right, 
 interest not allowed her (hiring the time she re- 
 sided with the a<inHnistrator. 
 
 I I'M. Nfitr.— I""or other eases, see I'!xeiutors 
 and .\dniinistrators. Cent. Die. § ll.'71: Dec. 
 
 !)i-. c=>:;i::.i 
 
 \l\jii iitnrs mill Ailiiiini'<trators C=»470.] 
 
 An e.\ parte n-turn to the ordinary in which 
 an adnduistrator strikes a balance against the 
 estate, is not such an act as will give currency 
 to the statute uf limitations in his favor. 
 
 (Kd. Note.— Cited in Crosiiy v. Crosl)y, 1 S. 
 C. .'UC: Kenwiek v. Smith. 11 S. C. :!(I4 ; 
 l'ri< ks V. Lewis. JC S. C. S.W. 1 S. E. .V's4 : 
 M<.nt;:onierv v. Cloud. '27 .S. C. li»2. 3 S. K. 
 l!>t>; Ariail v. Ariuil, 2J» S. C. IM, 7 S. E. :'>7i. 
 
 For other cases, see Executors and Admin 
 istrators. Cent. Dig. Ji 201(3; Dec. Dig. (£=;• 
 470.] 
 
 liefoie Wardlaw, l.'h., at Ivershaw, June, 
 l.Soli. 
 
 Tlie decree of Ids Ilunor the Circuit Chan- 
 cellor is as follows: 
 
 Wardlaw, Ch. .lames Riddle died in .Ma.v, 
 isiitj. leaving a will by which he directed his 
 whole estate to be .sold, and made the follow- 
 ing disposition of the jiroceeds : "the moneys 
 of the .same to remain in the hands of my 
 execut(us to accumulate the maintenance 
 and sui)port of my two children, .Ttthn Riddle, 
 my son, and Mary Riddle, my daugh er. that 
 is I, the executor, do bind my.stdf for the 
 welfare of John and Mary Riddle, that is 
 to bring them up in a decent manner as the 
 
 *32 
 abi*littes of the case will admit, with com- 
 mon education, frep from want, liound or 
 iMjndage, till they arrive at the age of twen- 
 ty-one. The moneys to be vested in the 
 hands of the executors for supix)rt without 
 extravagance; and when the said .lohii and 
 Mary come to the age of twenty-one. the 
 t)alance of said moneys to be etpially divld.d 
 between the said John and Mary Riddle." 
 The executors aitpointed by the testator de- 
 clined to act : and John Riddle, brother of 
 testator, lx»canie administnitor with the will 
 annexed. He sold the whole estate of the 
 testator on September 27. 182ti, for .<".•'!">. 
 Immediately after the death of their father, 
 the two children, John, then nine or ten 
 years old and Mary, then four or five years 
 of age, liegan to reside in the house of their 
 uncle. John Riddle, and remained there until 
 the death of John on March 2:5, 1S.'52, and 
 Mary's departure without le.-ive in January. 
 18o6. The children were poorly maint.iined 
 and educated, and they labored according to 
 their strength in the service of their uiude; 
 but both were young, and John puny, so that 
 their services were not very valuable. 
 Whether the services of the children were 
 equivaltMit to their board, and whether the 
 administrator originally intended to charge 
 them for board, are the principle tpiestions 
 in the case. On (October 2.s. l.s:?;{, the ad- 
 ministrator made his first and only return of 
 expenditures, in which he sets forth no pay- 
 ment of money except ."jiS. but charges each 
 of the children for board at the rate of $47 
 a year; and in this way exhausts the as.sets 
 of the estate and makes himself a creditor 
 to the excess of .$100.42. 
 
 On .Vugust 12. is:;.^, the defendant. John 
 
 ^=::9Fur other cases see same topic aud KEY-NUMOEH iu all Key-Numbered Digests aud Indexes 
 
 L'i
 
 •32 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 Riddle, conveyed his wliole estate to James 
 W. Cantey, in trust to sell the same at his 
 discretion and pay all the debts of the gran- 
 tor; then to permit the children of grantor 
 to have certain specified uses of the estate 
 during the life of the grantor ; and upon his 
 death to divide the residue equally among 
 the children of grantor. It was admitted 
 that the trustee had sold the estate and de- 
 livered the securities for the purchase money 
 to the Commissioner of this Court, under cer- 
 tain proceedings not distinctly brought to 
 my notice. 
 
 *33 
 *John Riddle, the administrator, died in- 
 solvent, before June, 1S48. 
 
 The plaintiff, Mary Kiddle, has received 
 the grant of the administration of her broth- 
 er John. In her own riglit, and/ as adminis- 
 tratrix and sole distributee of her brother 
 John, she filed the original bill in this case, 
 January 9, 1846, against John Riddle as ad- 
 ministrator (and against his sureties, who 
 were not made parties regularly,) for an ac- 
 count of her father's estate. The administra- 
 tor answered that he had exliausted the es- 
 tate according to his return above mention- 
 ed, and he relied upon the statute of limita- 
 tions. The matters of account was referred 
 to the Commissioner, and that officer took 
 evidence, and at June term, 1847, made a re- 
 port, in which, submitting to the Court 
 whether the administrator was entitled un- 
 der the circumstances to charge board, he 
 expressed the opinion, that, if the adminis- 
 trator was entitled to charge board, the es- 
 tate of the testator would be exhausted, nay 
 brought in debt to the administrator. 
 
 The plaintiff filed exceptions to this re- 
 port, insisting in various forms that the ad- 
 ministrator gratuitously supported the chil- 
 dren, that their services were equal to their 
 maintenance, and that he was not authorized 
 to exceed their income in his expenditures 
 for maintenance. For lack of time or some 
 other reason, this report and these excep- 
 tions were not considered at June term, 
 1847, and in 1848 the administrator died; 
 and at June term, 1848, the case of the plain- 
 tiff was marked abated. At June term, 1850, 
 the plaintiff filed a bill of revivor and sup- 
 plement, in which she charged the death and 
 insolvency of the administrator, and that his 
 estate was unadmiuistered unless by the Or- 
 dinary as a derelict estate, and also set 
 forth the execution of the trust deed afore- 
 said by John Riddle, and made the Ordinary, 
 and the trustee, James W. Cantey, parties 
 to the suit. The Ordinary answered that 
 John Riddle left no estate independent of 
 that in the trust deed, and the trustee an- 
 swered admitting the facts above mentioned 
 as to the trust deed, and suggesting that the 
 beneficiaries of the trust, the children of 
 the grantor, were necessary parties. 
 *34 
 *In this state the case was presented for 
 14 
 
 my determination. I thinlc there is nothing 
 in the suggestion that the beneficiaries of the 
 trust deed should be made parties. The 
 legal estate is clearly in the trustee and lie 
 sufficiently represents the beneficiaries. 
 
 The defendants have not proved a state of 
 facts in whicb the bar of the statute of lim- 
 itations is applicable. It does not appear 
 that the plaintiff had attained full age more 
 than four years before she filed her original 
 bill, and although there was considerable de- 
 hiy in filing the bill of revivor, this may be 
 excused on the consideration tliat there was 
 no representative of John Riddle's estate. 
 There is no irreparable breach of continuity 
 in the suit. 
 
 The main controversy between the itarties 
 is as to the claim of the administrator to 
 absorb the whole estate in the maintenance 
 of the legatees. In general, one entrusted 
 with the management of the estate of an in- 
 fant, cannot exceed the income in providing 
 maintenance for the infant, without the pre- 
 vious leave of the Court or upon some sud- 
 den emergency. But a different rule may be 
 estal)lished as to a particular estate by a tes- 
 tator or other person creating the trust. The 
 will in the present case is drawn inartificial- 
 ly and is obscure, but as I construe it, par- 
 ticularly that the monies shall be vested in 
 the executors for the support of the legatees, 
 and that the balance shall be divided, some 
 discretion in expending tbe corpus of the es- 
 tates in maintenance of the children is given 
 to the executors; and I suppose the admin- 
 istrator on the will succeeded to the author- 
 ity of the executors in this respect. The 
 awkward phrase, to accumulate the mainte- 
 nance, has the same bearing. Still the trus- 
 tee is bound to show that he has exercised 
 such discretion judiciously ; and a more lib- 
 eral construction of his conduct should be 
 made where he has expended the corpus of 
 the estate in payments to others, than where 
 he claims to retain it for maintenance fur- 
 nished by himself. AVherever a father or 
 other near relative of the infants is the 
 trustee, in sucli case, he should show distinct-. 
 
 *35 
 ly his purpose to charge for mainte*nance "^^ 
 or maintenance before such manifestation 
 may be justly inferred to be afforded gratui- 
 tously. If the trustee exact from the infants 
 all such labor and service as they are capa- 
 ble of rendering, the inference is especial- 
 ly strong that he expected no compensation 
 for board beyond their services. Booth v. 
 Sineath, 2 Strob. Eq. 31. In the present case 
 the trustee did not manifest his purpose to 
 charge his wards for board, until seven years 
 after their residence with him began and 
 after the death of one of them, and he avail- 
 ed himself of their labor to the full extent 
 of their capacity. Much contrariety of evi- 
 dence exists on the naked question, whether 
 their services on the whole were equivalent 
 to their board— but setting aside the testi-
 
 JACKSOX V. MtALILEY 
 
 mony of the daughters and sons-in-law of i the inti'state did, it seeuis to the Court that 
 the administrator, who have an interest iu | it was iiroperly overruled. John Riddle was 
 
 the matter, the clear preponderance is in 
 the athrmative of the question. lUit a eir- 
 cumstanee remains to be uientioned which 
 seems conclusive of the matter. The admin- 
 istrator repeatedly declared that he had in- 
 vested the funds of his testator in the pur- 
 chase of a nejrro woman, for the reason, that 
 the increase of the .^lave would afford more 
 profit to the children than interest on the 
 money, and according to one witness, said, 
 the children, when they attained full age, 
 should have the negroes or the money at 
 their option. 
 
 These views lead me to the conclusion that 
 the adnnnistrator's claim for loard should 
 lie rejected. On the other hand there has 
 been unreasonable tardiness in the asser- 
 tion of the plaintiff's right : and as the al- 
 lowance of interest is to some extent a mat- 
 ter for judicial discretion, I am of opinion 
 no interest should be alloweil to plaintiff" un- 
 til after January, 18.30, when she left her 
 uncle's house. 
 
 It is ordered and decreed, that the Com- 
 nussioner re-state the account on the prin- 
 ciples of this opinion. Parties have leave to 
 apply for any other orders whidi may be 
 nece-ssary, to the execution of the decree. 
 Costs to be paid out of the estate. 
 
 The defendants appealed and now moved 
 this Court to reverse the decree or to modify 
 the same \ipou the grounds: 
 
 1. I'.ecause his Honor should have allow- 
 *36 
 vd compensation to *John Kiddle, the adnnn- 
 istrator, for board and maintenance, cloth- 
 ing, t&C. 
 
 '2. Because the claim was biured by the 
 statute of linutations, and especially the 
 claim of complainant as adnunistratrix of 
 her brother John. 
 
 The complainant also aiipealed on the 
 ground, that the decree should have allowed 
 complauKint interest on the fund in the 
 hands of the adnunistrator, arising from the 
 sales of the property under the will, from 
 the time the money from the sales became 
 due, or the exi)iratiou of twelve niontlis aft- 
 vr administration. 
 
 Kershaw, for defendants, cited White and 
 Tud. Lead. Cas. 1U4. 
 
 Clinton, for complainant, cited Harp. Eq. 
 '2'2-i; McM. Kq. 275. 
 
 The opinion of the C\)urt was delivered by 
 
 IH'NKIX. Ch. In reference to the com- 
 jilainant's ground of appeal, and the first 
 ground of aiiiieal on the part ()f the defend- 
 ants, this Court is entirely satisfied with the 
 views and the .conclusions of the Chancellor. 
 
 Assuming that the legal reitresentative of 
 John Kiddle, the elder, is now before the 
 Court, and relie<l upon the plea of the .stat- 
 ute of liinitations, in the same manner as 
 
 the adnunistrator cum testamento anuexo of 
 liis Itrother James Kitldle, under whose will 
 the plaintiff claims. He was a direct, tech- 
 nical trustee, and, as such, could never nvnil 
 him.self of the statute so long as that rela- 
 tion subsisted. If the complainant had not 
 tiled a bill for account until June. ISoO, nhe 
 would be entitled to relief unless the defenil- 
 ant could estaldish .some act on his iiart pur- 
 porting to be a discharge of his trust, or un- 
 less such a length of time had elai)sed as 
 would authorize the Court to presume the 
 demand satisfied. The latter is not suggest- 
 ed, and the i)osition would be obviously un- 
 tenable from the condition of the parties. 
 
 *37 
 Nor could it, with ♦more reason be surml-s- 
 ed that he had done any act puri»orting to be 
 a discharge of his trust. It is true that, aft- 
 er the death of plaintiff's brother (a minor.) 
 and when the iilaintiff was about eleven 
 years of age, the administrator made his first 
 and only return to the Ordinary. It did not 
 purport to be, and could not be, a settlement 
 of the estate, or a discharg*' of the duties 
 which he had assumed when he undertook to 
 execute the will of his bntther. If an ex 
 parte return to the Ordinary, in which an 
 executor or admini.strator strikes a iialance 
 against the estate, should be regarded as a 
 discharge of his trust, from which time the 
 statute would run again.st a bill to account, 
 it would be an alarming disch>sure. as well to 
 creditors as to legatees and distributees of 
 the deceased. But the defendants have not 
 insisted on this: nor is any other act of dis- 
 chargi' suggested. The complainant was not 
 l)ound to file her bill within four years after 
 she arrived of age, and ctadd only be pre- 
 cluded by such lapse of time as would bar 
 in any other case of direct trust. Whatever 
 was due to the complainant constituted a 
 debt at the time of the execution of the 
 deeil to J. W. Cantey, who. thereby and by 
 the express provisitms thereof, became a 
 tru.stee for the creditors of John Kiildle, 
 and. for the reasons stated, the statute could 
 not avail him against the complainant's de- 
 mand. 
 
 It is ordered and decreed, that the decree 
 of the Circuit Court be alliniied and the ai>- 
 peal dismissed. 
 
 .lollN.^roN. I).VK(;.\N and WAKDLAW, 
 CC. concurred. 
 Decree attirmed. 
 
 5 Rich. Eq. •38 
 
 *M.\Uril.V J.\<'I\.'^<t\. |)y Next Friend, v. 
 
 SAMIKL .M< ALILKY ct al. 
 
 (Cohnnbia. Nov. iiiul Dee. Term, 1852.) 
 
 [Eiiuitli <S=».".".»T.l 
 
 The Conunissioiu'r 
 receiver, certain fuiid>^ 
 
 liavinir in liis hands, as 
 . t<) a siiare of wliidi a 
 
 ^=:3Kur other cases see same topic auU KEY-NUMUEK iu all Key-NumDered Digests aud Indeies 
 
 15
 
 *38 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 married woman was entitled as tenant in com- 
 mon, without any order of Court paid out her 
 share to her husband, Fhe not joining in the 
 receipt: — Held, that the payment was unau- 
 thorized; and that the Coniniissidnor was bound 
 to account to the wife for lier share. I'er Dar- 
 gan, Ch. 
 
 [Ed. Note.— For other cases, see Equity, Cent. 
 Dig. § 861; Dec. Dig. <@=:j397.J 
 
 [Equity <S=>o97.] 
 
 A Commissioner having a fund in his hands 
 as received, must keep it until ordered to pay 
 it out; if he pays it out without an order, he 
 cannot exonerate himself without showing, that 
 he paid it to one, who, if application had been 
 made to the Court, would have been entitled to 
 I'eceive it under its sanction. Per Dargan. Ch. 
 [Ed. Note. — For other cases, see Equity, Cent. 
 Dig. § 861; Dec. Dig. €==>397.] 
 
 [Hushand and Wife <©=:3l().l 
 
 A husband's marital ri^lits do not attach 
 
 on the undivided interest of his wife in a fund 
 
 in the custody of the Court. Per Dargan. Ch. 
 
 [Ed. Note. — For other cases, see Husband and 
 
 "Wife, Cent. Dig. § 38; Dec. Dig. <^=^H).] 
 
 [Equiti/ (©=)404.] 
 
 Where a decree is made overruling defend- 
 ant's defence and ordering him to account, ad- 
 ditional evidence to slio.v that defendant is not 
 liable to account cannot be offered at the refer- 
 ence. Per Dargan, Ch. 
 
 [Ed. Note. — For other cases, see Equity, Cent. 
 Dig. §§ 886-892 ; Dec. Dig. <S=:5404.] 
 
 [Equity <S=»413.1 
 
 An order confirming the annual report of the 
 Commissioner upon a fund in his hands, does 
 not conclude the parties interested in the fund. 
 Per Dargan, Ch. 
 
 [Ed. Note. — For other cases, see Equity, Cent. 
 Dig. §§ 927-930; Dec. Dig. <©=>413.] 
 
 [Equity <©==>410.] 
 
 Where grounds of exception to a Commis- 
 sioner's report state matters which are objec- 
 tions, hot to the report, but to the decree order- 
 ing the reference, the Chancellor should refuse 
 to decide them ; nor will the Court of Appeals 
 decide them on appeal from the decree on the 
 report; the appeal should be from the decree or- 
 dering the reference. 
 
 [Ed. Note. — For other cases, see Equitv, Cent. 
 Dig. §§ 905-919; Dec. Dig. <®=5410.] 
 
 [Equity <©=3.396.1 
 
 A Commissioner paying out money during 
 his term of oflice to one not entitled to it. held 
 bound to pay interest from twenty days after 
 he went out of office — that time being allowed 
 him, by the Act of 1840, within which to turn 
 over the fund to his successor. 
 
 [Ed. Note. — For other cases, see Equitv, Cent. 
 Dig. § 860; Dec. Dig. <S=»396.] 
 
 Before Dargan, Ch., at Chester, July, 1849. 
 
 Dargan, Ch. This bill has been filed by 
 Martha Jackson, through her next friend, 
 Dr. C. Thorn, against her husband, William 
 Jackson, and Samuel McAliley, the late Com- 
 missioner in Equity of this Court. 
 
 The complainant is one of the children of 
 Rebecca Barber*, to whom Daniel Green, by 
 his last will and testament, bequeathed one- 
 half of his personal estate. The complain- 
 ant's share of said personal estate, was the 
 one-twelfth part. John M. Barber, the com- 
 plainant's father, was, by proceeding in this 
 
 Court, aiiitoiuted the guardian of all his chil- 
 dren, including the complainant. His chil- 
 dren were six in number. John Peay and 
 James B. Pickett were the sureties on the 
 
 *39 
 gnardian*ship bond of the said John M. Bar- 
 ber. Peay and Pickett filed a petition in 
 this Court, asking to be relieved from tlieir 
 liability on the guardianship bond, or that 
 Barber might be required to give new sure- 
 ties, or to sui-render his trust, and to account 
 for and deliver the whole of his wards' es- 
 tate to some other per.son, by the Court for 
 that purpose to be appointed. 
 
 At February term, 1831, an order was made 
 in the case of Pickett and Peay v. John M. 
 Barber, as follows: "It is ordered and de- 
 creed, that the letters of guardianship grant- 
 ed to the defendant as the guardian of his 
 minor children, be revoked, and that he be 
 compelled to account before the Commis- 
 sioner for liis guardianship, and deliver over 
 the estate of his children into the hands of 
 the Commissioner of this Court, unless he 
 accounts fully before the Commissioner and 
 gives new security, to be approved by the 
 Commissioner, for the faithful discharge of 
 his duty, on or before the first day of Janu- 
 ary next." John M. Barber failed to give the 
 re(iuired security. His guardianship became 
 unconditionally revoked, and on the 19tb 
 January. 1832, he surrendered certain ne- 
 groes, the property of his wards, to the Com- 
 missioner in Equity. These negroes were 
 hired out by the Commissioner for two or 
 three years ; and the negroes themselves, In 
 proceedings in this Court for partition among 
 the children of Rebecca Barber, have been 
 divided, and the portion of said negroes as- 
 signed to the complainant, has been settled 
 by a decree of this Court to her sole and 
 separate use, &c. 
 
 On the 7th February, 1832, the said John 
 M. Barber, surrendered into the hands of the 
 Commissioner in Equity, in obedience to said 
 order, choses in action belonging to his chil- 
 dren, which the defendant, Samuel McAliley» 
 says, amounted, with interest calculated up 
 to that time, to $3,390.55. The defendant, 
 Samuel McAliley, in his answer and exhibit, 
 sets forth the amount of cash which he has 
 received on account of the children of Re- 
 becca Bai'ber, the late wards of John M. Bar- 
 ber. The statement is informal, imperfect 
 and confused. From the statement of his au- 
 
 *40 
 swer and exhibit, I understand that he *has 
 received upwards of $6,000, on account of 
 all the wards. But whether there is any 
 thing more due or unpaid, is not stated, but 
 I suppose that there is, from what the de- 
 fendant says, in regard to the understanding 
 between himself and William Jackson, when 
 he paid over certain of those monies to him. 
 
 There has been no order or decree of the 
 Court dividing or distributing the choses in 
 
 16 
 
 <g=^For other cases see same topic and KEY-NUMBER iu all Key-Numbered Digests and Indexes
 
 JACKSON V. McALlLEV 
 
 *42 
 
 fiction, or the funds arisin<; therefrom, among 
 the chiklren of KelK'cca Barlier. Yet the de- 
 fendant, acting as Commissioner or receiver, 
 has undertaken to distribute this fund on 
 his own responsiliility. and to pay certain 
 claims and expensi's, with whiih lie supposed 
 it to be chargeable, and has also made large 
 iniautliorized payments to the husband. In 
 doing this, he has assumed the resi)onsibllity 
 of paying it out rightfully, and as this Court 
 would now order it i)aid. if no such payment 
 had been made by the Conunlssioner. The 
 Connnissioner has no right to pay money 
 which has come into his hands by virtue of 
 bis oMlce, except under an order or decree of 
 the (\)urt. If he pays without this sanction, 
 he always pays on the peril of the right per- 
 son rc'ceiving it. In the case of the funds 
 being the estate of a married w<iman, tliere 
 is a peculiar impropriety in paying it to the 
 husband, without the order or directitm of 
 the Court. She has an eiiuity for a settle- 
 ment out of it. and the fund is to be le- 
 tair.ed for that purpose, until the wife .shall 
 have an opportunity of making her election, 
 either of asserting her riglit to a settlement, 
 or of waiving it. If she had joined in exe- 
 cuting the receipt, it would have been a dif- 
 ferent case — that wo\ild have beeii a waiver. 
 But the complainant has never waived her 
 equity for a settlement. It remains as per- 
 fect now as it ever was. Though the money 
 has, for the most part, been paid to the hus- 
 band, it has been wrongfully paid, and the 
 Court will consider it .still in the hands of 
 the defendant, the said Samuel McAliloy. 
 Tlie order under which he received the fund, 
 gave him no authority to pay it out to any 
 person. Yehlell v. Quarts. Dud. Eq. 57; 
 Wardlaw v. (Jray. 2 Hill. Eq. (-.44. 
 *41 
 
 *The defendant, as the adniinistrat«»r of 
 James McAllley. sets up a judgment in favor 
 of the estate of his intestate, against the 
 fund or estate to which Martha Jackson is 
 entitled from tlie estate of Daniel Green. 
 The judgment is against the husband. Wil- 
 liam Jackson. The claim is disallowed; 
 and it is so ordered and decreed. 
 
 It is ordered and decreed, that the i ay- 
 ments made by the said Samuel McAliley to 
 William Jackson, out of the funds of the 
 complainant in his hands, are null; and that 
 the said Samuel McAliley do account for 
 said funds, as if said payments, or any other 
 payments, had never iK'en made. 
 
 It IS further ordered and decreed, that the 
 Commissioner report all costs and exjienses 
 with which the share of the complainant, in 
 the said funds, is chargeable. It is also or- 
 dered and decree<l. that the Commissioner in- 
 quire and report what amount of estate, be- 
 longing to the complainant, has been collect- 
 ed by the said Samuel McAliley, and also 
 what remains to be collected. It is also or- 
 dered and decreed, that the whole of the es- 
 
 5 liicii.EQ.— 2 
 
 tate of the complainant. In the hands of the 
 said Samuel McAliley, already c«illeited. and 
 which remains to l>e collected, be settled to 
 the sole and separate use of the -aid «om- 
 plainant for life; remainder to her issue; 
 and if she should die without leaving issue 
 living, for the use of tlie said William Jack- 
 son. In the distribution among issue, the 
 issue of any deceased cbild to represent the 
 parent. 
 
 It is further onlered and decrt'ed. tliat the 
 estate of the complainant be paid over to her 
 trustee, Dr. C. Thorn. It is further ordered, 
 that the costs and expenses of these proceeil- 
 ings. be paid out of the funds of the trust 
 estate. 
 
 In obedience to the order of reference con- 
 tained in the foregoing decree, the Commis- 
 sioner submitted his report, dated .^lay I'd. 
 is.~)i;, as follows: 
 
 This bill is filed by the complainant, one of 
 the legatees of Daniel Green, decea.sed. c!;ilm- 
 ing an account and jiayment of her s'.iare of 
 certain choses in action, and of the bire of 
 
 *42 
 
 certain *slaves, transferred under an order 
 of this Court by J(»hn M. Barber, her former 
 guardian, to the defendant. .Samuel .Mc.Vlili'y. 
 Escj.. at that time Commissioner in Equity 
 for Chester District. The defendant in bis 
 answer, sets forth a .statement of the various 
 sums received by him, and of the payments 
 made by hinf. for expenses of the funil. and 
 to William Jackson, the husband of the com- 
 plainant, in right of his said wife. The 
 Court, at July term, 1841», ordered tbat the 
 payments so made to William Jackson, are 
 null; and the defendant is required to ac- 
 count for said funds, as if such payments, 
 or any other payments had never In en made. 
 It was further ordered, that the Commission- 
 er report all costs and expenses with wbicli 
 the share of the complainant in .said fund is 
 chargeable, and that he also inquire and re- 
 port what amount of estate belonging to the 
 complainant has been collected by the said 
 Samuel McAliley, and also, what remains to 
 be collected. 
 
 At the reference held in the case, the 
 complainant's coun.sel offered in evidence to 
 charge the defendant, the exhiliit tiled with 
 his answer, which contains a statement of 
 the amounts received by him. 
 
 Tlie defendant, McAliley. offered various 
 payments made by him. as follows: 
 
 Beccipt of W'm. Jaiksoii. dated .Tnim- 
 ary 2.S. IKVA. for .>?100 (M) 
 
 Beccipt (if Win. .lackson, dated Deceai- 
 b.r 12. is:?:!, for KX) 00 
 
 Beceiiit of Win. Jackson, dated Janu- 
 ary 22. 1S;',4. fof ir)0 00 
 
 Receipt of Win. Jackson, dated Eeitru- 
 ary .S. 1S:{4. for l'4() 00 
 
 Bocoipt of Wni. Jackson, dated Julv 2. 
 1S.!4. for .-.0 Off 
 
 Be<'eipt of Win. Jackson, dated Janu- 
 ary 13, 18:!o, for i.'.~0 00 
 
 17
 
 *42 
 
 5 KICHARDSON'S EQUITY REPORTS 
 
 Two notes of Wui. Jackson, for hire of 
 negroes of the Barber children: 
 
 One for 1S33, due 1st of Jauuary, 1S34..$27 00 
 
 " is:j4 1835.. GO 00 
 
 Receipt of Col. .James Gregg, Counsel 
 
 fee. Sept. 7, 1837 50 00 
 
 Receipt of Coni'rs. in Partition, March 
 
 18, 1835 S 00 
 
 Receipt of W. F. DeSaussure, Counsel 
 
 fee, July 2, 1833, 25 00 
 
 *43 
 *Receipt of Clarke & McDowell, Coun- 
 sel fee, November 3. 1833 100 00 
 
 Receipt of J. McCreary, Taxes, May 
 
 17, 1833 8 25 
 
 Receipt of Jno. Ferguson, Witness, June 
 
 21. 1833 1 00 
 
 Receipt of J. McCreary, Taxes, May- 
 
 13. 1834 13 00 
 
 Receipt of J. Ferguson, keeping negroes, 
 
 and Auctioneer June 31, 1835 10 00 
 
 Receipt of J. Ferguson, Dec. 29, 1832. . 2 50 
 
 The defendant also offers in evidence his 
 report made at July Terru, 1834, in which he 
 credits himself with the payment of $550, to 
 William Jackson. 
 
 On the minutes of the Court at that term 
 is the following order: 
 
 "Exparte, ] Report of money 
 
 "The Minor Legatees of J. received and paia 
 Danl. Green, deceased J away. 
 
 "The Connuissioner having read his report 
 of monies received and paid away, as re- 
 ceived of funds of said legatees, and the 
 same having been examined by Mr. McDowell, 
 solicitor for the legatees, and no objection 
 having been made to the same, ordered that 
 the same be contirmed. 
 
 Henry W. DeSaussure." 
 
 "duly 4, 1834." 
 
 The report at June Term, 1835, on the 
 same subject, is also confirmed by order of 
 the Court. The complainant objects to the 
 payments to William Jackson, as well as to 
 his notes, offered by the defendant, as hav- 
 ing been already decided by the Court. 
 
 An important question arises here, wheth- 
 er or not the defendant is chargeable with 
 interest on the various sums received by him. 
 It is insisted by his counsel, that he is not 
 so chargeable, or at least only from the filing 
 of the bill — that he is a public officer, not 
 liable to pay interest, or be sued, until a de- 
 mand is made upon him ; and that no de- 
 mand was made, before the filing of the bill. 
 It is further said, that the husband of Mrs. 
 
 *44 
 *Jackson has received the money, and had 
 the use of the negroes for the benefit of her 
 and her family, and that he has a right to 
 use the interest of the fund ; and. further, 
 that no order having been made to distribute 
 the fund, the Commissioner had no right to 
 be accountable for the interest iintil such or- 
 der is made. The complainant insists, on the 
 other hand, that the defendant was a trus- 
 tee for her, and that he has wrongfully paid 
 away the money to another, and that he 
 must therefore account to her for the inter- 
 est. Feeling doubts on the subject, I have 
 made the account in the alternative, so that 
 
 18 
 
 it may be confirmed in any view the Court 
 may take. There is nothing said in the 
 Chancellor's decree, on the matter of inter- 
 est. 
 
 All the other receipts, (exclusive of Wm. 
 Jackson's) were for payments made to coun- 
 sel, witnesses, t&c. The defendant also claim- 
 ed credit for a counsel fee to P. E. Pearson, 
 Esq., of .?50, for which he produced no re- 
 ceipt, but for which he liad claimed a cx'edit 
 in his reports to the Court, already refer- 
 red to. 
 
 [The report here contained a statement of 
 the amount received by the defendant, and of 
 monies paid out by him, excluding the pay- 
 ments to Wm. Jackson, and the payment to 
 P. E. Pearson, and concludes as follows:] 
 
 If the complainant is entitled to interest, 
 as she contends, there is due to her, on the 
 first day of July, 1852, the sum of eighteen 
 hundred and eighty-two dollars and sixteen 
 cents from the defendant, Samuel McAliley. 
 
 The bill in this case was hied May 24, 1849. 
 If the complainant is entitled to interest 
 only from the filing of the bill, there will be 
 due to her, the sum of nine hundred and 
 seventy-eight dollars fifty-five cents, on the 
 first of July, 1852. 
 
 By the decree of the Court, made at July 
 Term, 1849, there was found due to the com- 
 plainant, the sum of .^950.6G, on the 1st day 
 of July, 1846, from the estate of James Bar- 
 ber, and from the sureties of John M. Barber. 
 
 The negroes assigned to Mrs. Jackson, in 
 the partition of the slaves bequeathed by 
 Daniel Green, were settled, by order of the 
 Court, on her, to her sole and separate use. 
 '45 
 
 *The Chancellor having directed in his de- 
 cree, that the fund due to the complainant 
 from the defendant, should be paid to her 
 trustee, Dr. Chas. Thorn, the Commissioner 
 suggests to the Court, that Dr. Thorn has 
 removed permanently from this State, and 
 is now residing, as he is informed, in the 
 State of Mississippi. 
 
 No application has been made for the ap- 
 pointment of another trustee in his stead. 
 
 The fund due in this case, as well as that 
 due from James M. Barber's estate, and the 
 sureties of John Barber, is ordered by the 
 Chancellor to be settled on the complainant. 
 
 The defendant, Samuel McAliley, except- 
 ed to the report of the Commissioner, on 
 the following grounds, to wit: 
 
 1. Because the Commissioner erred in not 
 allowing a payment of fifty dollars made 
 to I'. E. Pearson, Esq., as solicitor for com- 
 plainant and others, in the cas^e of Peay & 
 I'ickett against the same, the receipt for 
 which payment was lost or mislaid, the said 
 sum being paid as a counsel fee, and re- 
 ported to the Court and approved of, and 
 the same being, also a moderate fee, consid- 
 ring the questions involved and the amount 
 recovered. 
 
 2. Because the Commissioner erred in
 
 JACKSOX V. McALILEY 
 
 *48 
 
 fharginj,' tlie defendant with the sums re- 
 ported to the Court, and wliich after exam- 
 ination hy counsel for the said iomi)lahiant 
 and others, was approved of and confirmed 
 l)y the Court. 
 
 3. Because tlie Commissioner erred in 
 charyiuK tlie flefendant wltli tlie hiri' of ne- 
 sroes, of whidi the comi)lainant had the 
 serviee and labor. 
 
 4. Because the Connnlssioncr erred in al- 
 lowin« any interest in .said account awinst 
 the defendant. 
 
 n. Because the complainant liavin;; tlie 
 whole of her prop(>rty (exc.'i.t that in con- 
 troversy) settled upon her. no future settle- 
 ment should l>e made, and the payment to 
 her hu.shand was riyht and proper. 
 
 The ca.se was heard on the exceptions be- 
 fore .lohn.ston, Cli.. at June sittin-s, ]S.j2. 
 who made the following decree: 
 
 *46 
 *Johuston. Ch. On hearln.L.' the report of 
 the Connui.ssioner in tlie ahove case, tiled I't It ii 
 day of May, iSHl*, and excei»tions filed there- 
 to by defendant. .Sanniel McAlilev ; It is 
 ordered and decreed, that the first "excei.tion 
 he sustained by the consent of plaintifT's 
 solicitor. The second and fifth excel )tion.s 
 are overruled, the report bein;,' in confornn- 
 ty with a previous decree of this Court. 
 The third exception is overruled, beiiif? 
 founded on an error in fact, no ne^ro hire 
 being charged in the report. The fourth 
 exception relates to interest. The Commis- 
 sioner has not decided the (piestlon. wheth- 
 er interest should be charged ; and if any. 
 at what time the fund should commence to 
 bear interest. The money was paid into 
 the hands of Mr. McAliiey, while he was 
 Commissioner of this Court, and in pursu 
 ance of its order. During the time he was 
 Commissioner, he is not chargeable with in- 
 terest, but when he went out of ottice it 
 was his duty to have turned over the mon- 
 ey to his successor, and not having done so. 
 he has held the money as a private indi- 
 vidual, and no demand other tiian the legal 
 reipiisition was necessary to render him 
 liable for interest, an<l he should be charg- 
 ed with interest from twenty days alter 
 he went out of ottice: and let the rejiort 
 be amended in conformity with the princi- 
 ples here laid down. 
 
 It having been suggested to the Court, that 
 Charles Thorn, the trustee of Martha .Tack- 
 >«m, has left the State an<l ab.-mdoned his 
 trust. 
 
 It i.s ordered and decreed, that the de- 
 fendant pay into the hands of the Comnns- 
 sioner of this Court, the anxanit which may 
 be found due, in conformity with the i>rin- 
 ciples of this decree: That it be referr»'d to 
 the Commissioner of this Court, to ascertain 
 and report whether Charles Thorn has left 
 the State, and if so, to reimrt uiion the fit- 
 ness of some i)ersou to be aiipointed trustee, 
 who may ajiply for said ai.iM.iiitment ; and 
 
 when the said appointment is regularly 
 made, the Commissioner is hereby directed 
 to pay over the fund here referred to, to 
 said trustee, and the .same is to be vested 
 in him for the .separate use of the .said Mar- 
 tha .Jackson, during her life, and at her 
 death, to be divided amongst her issue. 
 
 ♦47 
 agreeably to the statute of di.stribu*tions ; 
 and If thi- .said Martha .shotd.l h-ave no is- 
 sue living at her death, then to Win. .Ia<k- 
 aon, her hu.shand, freed from all further 
 trusts. 
 
 It is further ordered, that it be referred 
 to the Connni.<sioner of this Court, to ascer- 
 tain and report what woidd l»e a reasonable 
 coun.sel fee f<»r coinidainanfs solicitor in 
 this ca.se. 
 
 The defendant. Sinuiel McAliiey. moved 
 this Court to modify the decree of Chan- 
 cellor .Tobnston. on the following' -'rounds, 
 to wit : 
 
 1. Because the Chancellor erred in not 
 susfaiinng the second exceiiti(»n to the Com- 
 missioner's report, which is: "Becau.se the 
 Commissioner erred in not allowing the de- 
 fenilant credits for monies paid by him tn 
 William Jack.son, the husbjiml of the com- 
 plainant, and which payments nre reported 
 specially to the Court, and which paynu-nts 
 after the examination of .solicitors of com- 
 plainant and others, were confirmed hy the 
 express order of the Chancellor.' 
 
 2. Becau.se. the Chancellor erred, in not 
 sustaining the fourth exception of the de- 
 fendant, which is: "That the Conmiissioner 
 should not have allowed any interest on the 
 money in his hands, which had been paid to 
 the husbaml of comiilainant." 
 
 3. Because the Chancellor erred in not 
 sustaining the fifth exception of defen.lant. 
 which is. -Because the complainant having 
 had her whole property, excepting the 
 amount in controversy, .settled upon her. no 
 additional settlement should have been 
 made, an<l especially so. in ms much as her 
 husband had received the same, and she had 
 had to a certain extent the beiietit thereof." 
 
 4. Becau.se the Chancellor erred in direct- 
 ing a settlement, without first having or- 
 dered a reference to iiiiinire into the pro- 
 priety of the settlement. 
 
 M. Williams, for appellant. 
 Kiitland, contra. 
 
 *48 
 ♦The opinion ol the Court was (jcilver- 
 ed by 
 
 DAUGAX. Ch. I think it will sc.-irc.'ly be 
 doubted that a Commissioner in I^piity has 
 no authority to pay over monies that have 
 come into his hands as a receiver without 
 the order of the Court. His whole duty, un- 
 less otherwise ordered and directed, is sim- 
 ply to receive and safely to keep the fund. 
 Such fund is in fact in the safe keeping of 
 the Court itself, wlilch is obliged to use the 
 
 lU
 
 *48 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 personal instrumentality of its officers in 
 the performance of this duty. What right 
 has the Commissioner to apply or distribute 
 funds that are in the charge of the Court, 
 and v/hich are in his hands only as a de- 
 positary? 
 
 If a Commissioner, under these circum- 
 stances, undertakes to pay out monies, he 
 assumes the responsibility of paying it out 
 to the right person, — to the person who 
 would be entitled to receive it, if it was 
 done in a formal manner under the sanc- 
 tion of the Court. His unauthorized pay- 
 ments would not be permitted to have the 
 effect of defeating the rights of the parties, 
 or varying or modifying them in any way. 
 These are propositions that will hardly ad- 
 mit of dispute. 
 
 The fund in question was the estate of the 
 complainant Martha Jackson, the wife of 
 the defendant, William Jackson. It was a 
 fund derived from her equital^le choses, 
 placed in the hands of the defendant Mc- 
 Aliley for collection and safe keeping. 
 
 I refer to the circuit decree for the man- 
 ner in which the estate of the complainant 
 in this fund originated, and in which it 
 came into the possession of the said Samuel 
 McAliley. It was her unascertained, un- 
 divided interest or share in certain choses 
 in action derived from the estate of Daniel 
 (ireen, to which she was entitled as tenant 
 in common with her five brothers and sis- 
 ters. There was not, and never has been 
 any decree making a partition of the fund, 
 or severing the rights of the parties. In 
 Yerdier v. Hyrne, 4 Strob. 463. it was decid- 
 ed by the Court of Errors, that, where a 
 married woman was possessed of a slave 
 as tenant in common with one or more oth- 
 er persons, the marital rights did not at- 
 
 *49 
 tach, there being no partition. And *this, 
 though the tenants had a vested legal es- 
 tate in common, and though there liad been 
 a decree for partition in the wife's life, 
 which had not been made before her death. 
 
 It is not disputed, that the complainant, 
 Mrs. Jackson, had a right to a decree for a 
 settlement when this fund first came into 
 the hands of the defendant as the receiver, 
 under the order of the Court. Nor could it 
 be disputed, that, if the fund still remain- 
 ed in the hands of the defendant, she would, 
 at this day, be entitled to the same decree. 
 
 It is said, however, that the share of the 
 fund to which the complainant is entitled, 
 has for the most part, if not altogether, been 
 paid over to the complainant's husband by 
 the defendant: and that, although this has 
 been done without the order of the Court, or 
 any waiver by the wife of her e<piity, the 
 marital rights have thereby attached. 
 
 But the Commissioner, as I have before 
 stated, has no right to pay out monies in 
 his hands without the order of the Court. 
 If he does, it is at his own peril; and upon 
 
 20 
 
 the responsibility of paying It out to the 
 right parties, and in such maimer and on 
 such conditions as the Court would have 
 ordered it paid. The rights of the parties 
 are not to be defeated, varied, or modified, 
 by such unauthorized and illegal payments. 
 
 Upon this, and similar reasoning, the Cir- 
 cuit Court, at July term, 1851, decreed that 
 the payments by McAliley to William Jack- 
 son were null, and that the complainant 
 was entitled to a settlement of the fi.«d ; 
 and that McAliley pay over to her trustee, 
 her share of the said fund, as if the pay- 
 ments to Jackson had never been made. The 
 decree also referred it to the Commissioner 
 to report upon tlae accounts. 
 
 At a subsequent stage of the proceedings, 
 (when the case was before the Commission- 
 er on reference,) the defendant offered some 
 further evidence in opposition to the right 
 of the complainant for a settlement. The 
 Commissioner has reported this evidence. It 
 consi.sts of extracts from the minutes of the 
 Court for July term, 18.34, and other docu- 
 ments which are of record. 
 
 The Commissioner in his annual report at 
 *50 
 that term, on the *estate of the infant lega- 
 tees of Daniel Green, states an account, in 
 which he credits himself with .$550 as p;-ud 
 to William Jackson. On the minutes of tt<> 
 Court is an order in words as follows: 
 "Ex parte 
 
 The minor Legatees ofl Report of u>na- 
 Daniel Green, de- i- ey received and 
 ceased. J paid away. 
 
 The Commissioner having read his re;-, rt 
 of monies received and paid away, as re- 
 ceived of the funds of the said legatees, iind 
 the same having been examined by Mr. ^Jc- 
 Dowell as solicitor for the legatees, ano jio 
 objection having been made to the same, or- 
 dered tliat the same be confirmed. 
 
 (Signed) Henry W. DeSaussurc. 
 
 July 4, 1834." 
 
 A similar report at June term, 1835, was 
 also submitted and confirmed. 
 
 It is contended, that the rights of tlie com- 
 plainant are tlius concluded (as to the extent 
 of the charges made for payments to Jack- 
 son iu these reports,) by the judgment of 
 the Court. 
 
 The first objection to the evidence is, tbcit 
 it was not submitted at the proper time. 
 The bill and answer made the question di- 
 rectly, as to the right of the complainant to 
 a settlement. The Court heard and decided 
 this question. The Commissioner was order- 
 ed to "report all costs and expenses witli 
 which the share of the complainant in said 
 funds is chargeable." He was also ord'n-ed 
 to "report what amount of estate belonghig 
 to the complainant has been collected by the 
 said Samuel McAlile.v, and also what n- 
 mains to be collected." The evidence w>ii:li 
 has been cited, was foreign to the --Vjniry 
 with which the Commissioner was charged:
 
 JACKSOX V. McALILEY 
 
 •53 
 
 and boiv upon a question whidi had already 
 been ad.juilicated. 
 
 But the ("vid(MK-(', if it had iteeii brought 
 forward at tlu' iinipcr time, would, if admis- 
 sible at all, havt> been lu-rfeetly Inconclusive. 
 It was an ex parte proceeding', in whbh rne 
 Commissioner alone was a party. The com- 
 
 ♦51 
 plainant wasnot a party, *nor was she repre- 
 sented by any one. It is recited in the or- 
 der, that the report had been examined by 
 Mr. McDowell, ".solicitor for tlie legatees." 
 It does not say that .Mr. McDowell assent- 
 ed; but that no objection having been made, 
 the report was conllrnu'd. It does not ap- 
 Itear. that .Mr. McDowell was the solicitor 
 t)f the complainant, or of the infant lega- 
 tees, in reft-reiice to their matters of account 
 with the Commissioner; or that it was nec- 
 es.sary for them to have a solicitor, after 
 their funds had come into the .safe keeping 
 of the Court. 
 
 It is as well for me to state here, broadly, 
 (for there .seems to be some nnsapprehension 
 upon the subject.) Hint these annual reports 
 and accounts which the Connni.s.sioner is re- 
 quired to make, conclude nothing, as to the 
 riglits of the i)arties whose estates or funds 
 they purport to give an account of. Tliey 
 are the ex parte reports of the Conunission- 
 er, and commit no body but himself. Tlieir 
 object is to comnnniicate information from 
 the Commissioner to the Court, and to any 
 party who may be desirous of looking into 
 his administration. It is intended as a 
 check upon the Commissioner. Uut after all 
 that a Chancellor can do in supervising the 
 annual returns of the Connnissioner. it af- 
 ft>rds but a very imperfect check, and a very 
 inadequate securit.v. I might say much more 
 upon this subject, but I forI»ear. 
 
 All that I have said, in vindication of the 
 decree of July term, ISol, has but little 
 pertinency to tlie is.sues now before this 
 Court. No appeal has been taken from that 
 decree. In pursuance of the decree the Com- 
 missioner has held his reference, and at 
 July term, 18r>2, he submitted his report. 
 The cause came before the Court at that 
 term, on this report and the exceptions. 
 
 The defendant nnule the same opposition 
 to the complainant's claim for a .settlement, 
 in the form of exceptions to the report, that 
 he had jtreviously made on the circuit trial, 
 and which had been decided against liim. 
 In addition to these, he excepted, that $50 
 paid as a fee to P. E. I'earson, Inid not been 
 allowed as a credit on his accounts. The 
 
 ♦52 
 <omplainanl's soli^citor withdrew, on the 
 last circuit trial, his oltjection to this item 
 as a credit; and it was allowed. Thus that 
 question was disposed of. 
 
 The defendant also excepted to the re- 
 port, becau.se the Commissioiu-r. in striding 
 the accounts, had charginl interest against 
 him. This question as to interest, was the 
 
 ordy new issue in the case,— the only point 
 that had not been previou.sly adjudged. 
 
 The Clnincellor who last heard the i-ause 
 (on the report and exceptions.) very proper- 
 ly declined to review, and decide any of the 
 matters that had been adjudged by the pre- 
 ceding decree. To have done so, would have 
 been to entertain ai.pdlate juri.sdictiim. And 
 in the same way. his successor might have 
 inHMi called upon to consider and reverse ins 
 decision. It is needless to pause here, for 
 the purpo.se of shewing the utter absurdity 
 of any otlier rule tlian that by which the 
 Chancellor was governed. 
 
 The Comnussioner, in his report, stated 
 the interest account in two ways. lie stat- 
 ed it first, on the supposition tliat the com- 
 plainant was entitled to rec-over intere.st 
 from the time the defendant luul received 
 the fund; which was the 7th February, 18.1:i. 
 Stating the account in this way, he found 
 a balance due the complainant on the 1st 
 July, isr,2, of $l.ssL'.io. f)n the supposition 
 that tlie complainant might not be entitled 
 to interest, except from the tiling of the 
 bill, which was the liOth May, 1S4!), the Com- 
 missioner has stated the intere.st account 
 in that way. Stating the account on this 
 principle he finds a balance due to complain- 
 ant, 1st Jul.v, 1S52, of ."i;n7.s.5,j. The defend- 
 ant excepted to the report for allowing in- 
 terest at all. 
 
 Thus the case was presented to the CTian- 
 cellor; who, adopting neither of the al- 
 ternatives presented by the ("onunissioner's 
 report, decreed that the defendant was liable 
 for interest from the time he went out of 
 ottice. 
 
 This is an appeal from that decree. The 
 grounds of ajipeal are as follows: 1. "Be- 
 cau.se the Chancellor erred in not sustaining 
 the second exception to the Commissioner's 
 report, which is: because the Commissioner 
 ♦53 
 
 erred in not allowing the defend^ant credits 
 for iiK.nies j.aid by him to William Jacks<.ii. 
 the husband of the conH)iaiiiant. and which 
 payments are reported speci;illy to the 
 Court, and which payments after the 'ex- 
 amination of the solicitor for comiilainant 
 and others was conlirmed by an express or- 
 der of the Court." 
 
 The third ground of appeal is. 'because 
 the Chancellor erred in not su.staining the 
 sixth excei)tion of the complainant, which 
 is, because the complainant having had her 
 whole property, except the amount in contro- 
 versy, settled uiion her. no additional settle- 
 ment should have been made; and esjiecially 
 so, inasmuch as lier liusband had received 
 the same, and she had, to a certain extent 
 the benefit of it." 
 
 It is perfectly obvious that the errors 
 charged in the.se two grounds, of appeal are 
 ernu-s (if they be sucli) which are imjuitable 
 only to the first decree; and from whicii. as 
 to these grounds no aiii»eal has been taken. 
 
 21
 
 *53 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 The Chancellor who presided at the last trial, 
 and heard the cause on the report and ex- 
 ceptions, did not affect to decide the ques- 
 tions involved in these two grounds of appeal. 
 He neither affirmed, nor denied tne proposi- 
 tions of the appellant. He only sought to 
 carry out and to enforce a previous decree 
 in the cause; which he found upon the record, 
 which, as a judicial order, was binding 
 upon him, and which was irreversible, except 
 by way of appeal. If the decree had in his 
 judgment been erroneous, (which I feel au- 
 thorized to say was not the case,) he would 
 not, and could not, have reversed or modified 
 it. No error is imputable to his decree on 
 this account. But the appeal should have 
 been from the first decree, of which the appel- 
 lant in this respect makes no complaint. 
 
 The second ground of appeal is, "because 
 the Chancellor has erred in not sustaining 
 the fourth exception of the defendant to the 
 Commissioner's report ; which is, that the 
 Commissioner should not have allowed any 
 interest on the money in his hands which had 
 been paid to the husband of the complain- 
 ant." 
 
 This Court concurs in the decree of the 
 
 *54 
 
 Chancellor as to the *interest. Foi", assuming 
 the first decree to be correct in ordering a 
 settlement of the fund, (and for the purposes 
 of this appeal trial, and until said circuit 
 decree is reversed, this must be assumed,) 
 the first default which the defendant com- 
 mitted In respect to this fund, was when he 
 failed to pay it over to his successor, on his 
 retirement from ofhce, as by law he was re- 
 quired to do. 
 
 A Commissioner in Equity is not liable 
 to pay interest on money which has come 
 into his hands as a receiver or simple de- 
 positary. He is required to receive, and for- 
 bidden to pay out, or to invest, on his own 
 mere motion. In such cases it would be lui- 
 just to charge him with interest — which, if 
 it were allowed, would consume all his profits. 
 But if he is ordered to pay out, and a de- 
 mand is made by one authorized to receive; 
 if he is ordered to invest a fund, or to make 
 any appropriation or disposition of it, either 
 by the law, or by a special order of the Court, 
 and omits to perform his duty, he is, and 
 should be, liable for interest. There is an 
 express provision in the Act of 1840, which 
 requires all Masters and Commissioners in 
 Equity to pay over the monies in their hands 
 to their successors in office. P'or the pur- 
 poses of this case, the fund must be consider- 
 ed as in the hands of the defendant, when he 
 retired from ofHce ; and his omission to pay 
 it over to his successor, as by law required, 
 subjects him to liability for interest from 
 that time. 
 
 It would not be wise to hold, that the hon- 
 est errors of public officers should shield them 
 
 from liability for the losses which fall upon 
 others, as the consequences of those errors. 
 In the first place it would be imi)Ossible to 
 determine, whether the error was uninten- 
 tional or otherwise. And an imperative pub- 
 lic policy would forbid the existence of such 
 a principle. High official functionaries, who 
 .set themselves up as qualified fb perform the 
 duties, and to administer the affairs of their 
 offices, for which they are supposed to re- 
 ceive an adequate remuneration, must be 
 held to a .strict accountability. Their correct 
 deportment, and the manner in which they 
 discharge their duties, vitally affect the in- 
 
 *55 
 terest and well-being of the whole *communi- 
 ty. To them, of all others, must the legal 
 maxim apply, that they must be presumed 
 to know the law. Honest errors, more or 
 les.s, are incident to and inevitable in all of- 
 ficers. But the stipends are supposed to be 
 sufficient to afford a just remuneration for 
 the labors, and a reimbursement for their 
 losses and risks. If this is not the case, it is 
 the folly of the incumbent to have taken the 
 office. 
 
 It is ordered and decreed, that the appeal 
 be dismissed, and that the circuit decree be 
 affirmed. 
 
 JOHNSTON and WARDLAW, CC, concur- 
 red. 
 Decree affirmed. 
 
 5 Rich. Eq. 55 
 •lOIIN McKINNE, .TAMES JONES and JO- 
 SEPH J. KENNEDY v. THE CITY 
 
 COUNCIL OF AUGUSTA. 
 (Columbia. Nov. aud Dec. Term, 1832.) 
 
 [Coiporuiions <S==>0G5; Courts <©==>ll'.] 
 
 Bill by plaintiffs, owners of a clinrter, from 
 South-*. "arulina, of the Augusta biidgf over the 
 Savannah river, against the City Council of 
 Augusta, iu Georgia, owners of a charter of the 
 same bridge from the State of (ieorgia, for an 
 account of tolLs (-ollected by the (h't'eudants, and 
 for an injunction to restrain them from col- 
 lecting more than one moiety of tolls, aud also 
 from collecting any tolls whatever at a new 
 bridge which they had built in violation of 
 plaintiffs' charter: it was averred in the bill, 
 that of so much of the Augusta bridge as lay 
 within the territorial limits of South-Carolina, 
 the plaintiffs were the owners, and it was in- 
 cidentally stated that the defendants owned 
 some lots in Hamburg, in this State: — Plea to 
 tlie jurisdiction, because the defendants were 
 non-residents of South-Carolina, sustained. 
 
 [Ed. Note.— Cited in Hurt v. Hurt, 6 Rich. 
 Eq. 118: Howard v. Cannon, 11 Rich. Eq. 25, 
 75 Am. Dec. 736. 
 
 For other cases, see Corporations, Cent. Dig. 
 § 2(>00; Dec. Dig. <g=^665; Courts, Cent. Dig. 
 S 36; Dec. Dig. €==llM 
 
 Before Dunkin, Ch., at Edgefield. June,. 
 1852. 
 
 The bill stated, that the river Savannah 
 is the boundary between the States of South- 
 Carolina and Georgia; that the sovereignty 
 
 ^z;^Far othei' cases see same tonic ."iid KKY NUMBER in all Key-Numbered Digests and Indexes
 
 McKINNE V. CITY COUNCIL OF AUGUSTA 
 
 *58 
 
 and territorial jurisdiction of each State ex- 
 tend, usquo :ul fllum mediiiiu aqua?, to the 
 
 *56 
 (•(Mitral line of tlio rivt-r. as your 'orators 
 arc advised, and that tlu* said States have no 
 convention to regulate the exercise of their 
 n^spective juris<lictions over tlie waters of tlie 
 said river, in resjiect to l)ridj^es, ferries, and 
 such otlier privileges, but, as your orators 
 are advised, the snuits or charters for bridg- 
 es or ferries from eitlier of tlie said States, 
 liave effect over so much of the said river as 
 lies witliin the territorial jurisdiction and no 
 liirtlier. 
 
 Tliat by an Act passed on Ilie ITtii day of 
 l>eceml)er, 181.'?, the State of Soutli-Canilina 
 ;:raiit«'d to Henry Shnltz and Lewis ('(niper, 
 their heirs and assij^ns, for the siiace of 
 twenty-one years, tlie exclusive privilejie of 
 Iiuilding a toll-bridije over so much of the 
 Savannah river within the State of South- 
 Carolina as lies between Cani]»belltowii Ferry 
 aitove, and the Sand-bar Ferry below Au- 
 j,'usta. and of receiving at the same, certain le- 
 ual tolls, and prohibited, under the penalty of 
 five thousand dollars, tlie building of any 
 otiier bridge, and tlie keeping of any ferry 
 or other convenience for crossing the said 
 river, except for private use, within those 
 limits, as in and by the said Act, reference 
 l>eing thereunto had, will more fully, and at 
 large, appear — that soon after the passing 
 of said Act, the said I^ewis Cooper assigned 
 bis interest in the said charter to your orator, 
 Jolm ^IcKinne, and the State of (Jeorgia. by 
 an Act passed on the 9tli of November. 1814, 
 granted a like charter to the said Henry 
 Sliultz and your orator, John McKinne. their 
 heirs and assigns for twenty yi-ars, as in and 
 l»y the said last mentioned Act. i)ublished 
 and printed under the autliority of tlie State 
 <»f Georgia, will more fully appear; and that 
 in pursuance of the privileges and powers 
 thus vested in them, the said Henry Shnltz 
 and John McKinne, with much skill and cost, 
 built the bridge ovt-r the Savannali river, 
 iietween the said Campbelltown and Sand-bar 
 Ferries, known afti-rwards as the Augusta 
 bridge, having fully complied with all tlie 
 terms and conditions of the said cliarters, as 
 your orators believe, and tliat during tlie 
 ctiiitinuance of the said charters. The I'ank 
 of the State of (Jeorgia. a i>ody pelitic and 
 corporate under tlie law of (Jeorgia. with ca- 
 pacity to take and hold real estate, under 
 
 ♦57 
 *certain restrictions, came into the possession 
 •of tlie said bridge and tlu* receipt of profits 
 ;ind tolls tliereof. 
 
 That your orators are informed ami believe 
 tliat at the erection of tlie said i)ridge, tlie 
 soil upon whicli rested its abutment and 
 landing on the South-Carolina side of the 
 said river; as also the land lying on the 
 river for some distance, l)otli aitove and below 
 the abutment of tlie said Itridge, was jiarcel 
 Of a tract of laud that belonged to the heirs 
 
 of one Isaac Fair, who had died intestate 
 seized thereof in fee, and leaving him surviv- 
 ing, a widow, Lucllla, who afterwards inter- 
 married with John 15. Covington, and two 
 cliildreii. John II. Fair and Jane Caroline 
 Fair, wlio afterwards intermarried with 
 (Jeorge Anderson; rliat the said Henry 
 Sliultz afterwards purchased the one undi- 
 vided fourth-part of the said tract of land 
 in fee, and liaving olitained from tlie State of 
 South-Carolina tlie loan of .$.")0.(K>0. for wliich 
 the said J. B. Covington l)eiame ijound as 
 one of his sureties, tlie said Shnltz and Cov- 
 ington for the securing tlie payment of the 
 said money, each executed a mortgage of liis 
 respective portion of the .said land — tliat tJie 
 said debt remaining unpaid, certain proceed- 
 ings were afterwards instituted in tlie Court 
 of Equity for tlie District of Edgefield, to 
 which all the persons in interest were made 
 parties, to procure partition of the said tract 
 of land, as well as foreclose the said mort- 
 gages — that, at the June term, 18;>0. of tlie 
 said Court, a decree in the said caus»> was 
 pronounced foreclosing the .said mortgages 
 and providing for tlie partition of the said 
 land, and for that purpose directing that it 
 should be sold— that in pursuance of said de- 
 cree, the said tract of land was divided by 
 the Commissioner, into six lots or portiiuis, 
 and .sold l>y him on the first Monday in Au- 
 gust, 18.">0, in .separate lots — that at that sale 
 the Hon. IJaylis J. Earle, l)eing duly author- 
 ized tliereunto, purchased, for the State of 
 South-Carolina the four lots on the said riv- 
 er, according to the Commissioner's divisii>n 
 of the said land, which included as well the 
 spot upon which rested the abutment and 
 landing of said bridge on tlie South-(^aroliiia 
 side of tile said river, as also the land im- 
 
 *58 
 mediately ♦adjoining, and lying upon tlie 
 said river. Imtli above and lielow tin* said 
 itridge. and tliat tliereupon a deed of am- 
 veyance of the said four lots or pitrtions of 
 the said land was duly executtnl by the Com- 
 missioner to the said H. J. Earle. for ami on 
 behalf of the State of South-Carolina ; that 
 the said 15. J. Earle afterwards, to wit, on 
 the LMth of Decemlier, ls.".0, on behalf, and as 
 the duly autliorized agent of the State of 
 Soiitli-Carolina. exeiuted a deed conveying 
 in fee tct Samuel Hale, then the I'resident of 
 the Branch Hank of the State of (JtM»rgia in 
 Augusta, certain "lots and ground, near tlio 
 end of the said bridge." lying in tlie town of 
 Hamburg. Iteing parcel of the four lots pur- 
 chased by the said H. J. Earle as aforesaid, 
 and descrilted in his deed to the .said Samuel 
 Hale, as follows: — That is to say, "one lot or 
 parcel Iteginning on the l>aiik of Savannali 
 river, at low water mark, (tn the South-Caro- 
 lina side, at the termination of Covington- 
 street. thence north along the eastern line 
 of Covington-street to lot No. .*]L'(>. thence 
 .•ilong tlie southern Itoundary of the said lot 
 to John Fox's line, thence along the said line
 
 *58 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 to the river, thence along the margin of the 
 river to the beginning, embracing the lots 
 No. 327, No; 328, No. 329, and No. 330, as laid 
 down in the original plan of Hamburg; also, 
 lot number flftj-four, as laid down in the 
 said original plan, bounded by Market-street 
 on the north, Covington-street on the east, 
 Bay-street on the south, and by lot 53 on 
 the west ; also, so much ground as lies im- 
 mediately south of the last mentioned lot, 
 between Bay-street and the river, and having 
 the same east and west boundaries: and also 
 a piece or parcel of ground situated within 
 Covington-street, as laid down on the original 
 plan, of the following dimensions, to wit, ex- 
 tending from the margin of the river at low 
 water mark to the southern line of Market- 
 street, and bounded by east and west lines of 
 the width of the Augusta bridge, running the 
 course of Covington-street to the said south- 
 ern line of Market-street, it being understood 
 that the last piece or parcel is to be used, 
 held and enjoyed solely and exclusively for 
 the purpose of the bridge abutment and a 
 
 *59 
 highway;" and that the *said Samuel Hale 
 afterwards, to wit: on the 27th December, 
 1830, by deed duly executed, conveyed to the 
 said The Bank of the State of Georgia in 
 fee all and singular the "lots and ground" 
 purchased by him as aforesaid, describing 
 the same in the identical words of the de- 
 scription tliereof contained in the deed of 
 conveyance executed to him by the said B. 
 J. Earle as aforesaid. 
 
 That tlie State of South-Carolina by an 
 Act passed on the 18th Decemlier. 18'!0, 
 granted to the said The Bank of the State of 
 Georgia, by the style and addition of the 
 President and Directors of The Bank of the 
 State of Georgia, their successors and as- 
 signs, a renewal of the said charter of the 
 said bridge for the further space of fourteen 
 years from the 17th of December, 1834, with 
 all the exclusive rights, privileges and im- 
 munities extended and allowed to the former 
 proprietors of the said bridge, under the 
 charter of 1813, as in by the said Act, ref- 
 erence being thereto had, will more fully 
 appear: And that the State of Georgia, by 
 Act passed on the 23d December, 1833, 
 granted to the said The Bank of the State of 
 Georgia an extension of the said charter of 
 1814 for the further space of ten years from 
 9th November, 1834, with a reservation of 
 the right of chartering any other bridge at 
 or near Augusta, and for greater particu- 
 larity and exactness, your orators crave leave 
 to refer to the said Act, printed and publish- 
 ed under the authority of the State of 
 Georgia. 
 
 That all and singular the "lots and ground" 
 conveyed by B. J. lOarle on behalf of the 
 State of South-Carolina to Samuel Hale, and 
 by him to the said The Bank of the State of 
 Georgia as aforesaid, were, on the 4th May, 
 1838, by deed duly executed, conveyed in fee 
 
 24 
 
 by the said The Bank of the State of Georgia 
 to Gazaway B. Lamar, and that the said 
 G. B. Lamar, at or about the same time, ob- 
 tained from the said The Bank of the State 
 of Georgia a conveyance and transfer of all 
 its interests and estate in the said bridge, 
 and the franchises and privileges in respect 
 thei-eto, derived from the said charters from 
 the States of Georgia and South-Carolina, 
 and that on the 21st of January, 1840, the 
 
 *60 
 said *Gazaway B. Lamar, by deed duly exe- 
 cuted, sold and conveyed to The City Council 
 of Augusta, a body politic and corporate un- 
 der the law of Georgia, all and singular the 
 said "lots and ground" in the town of Ham- 
 burg, purchased by him from The Bank of 
 the State of Georgia as aforesaid, and all 
 his interest and estate, however derived, iu 
 the said bridge and in the franchises and 
 privileges belonging to him in respect there- 
 to; that the "lots and ground" in the town 
 of Hamburg conveyed by the deed from The 
 Bank of the State of Georgia to the said 
 Gazaway B. Lamar, are therein also describ- 
 ed in terms identical with those em[tloyeil iu 
 the deed from B. J. Earle to Samuel Hale 
 as aforesaid, and that almost literally the 
 same description of them is adopted in the 
 said deed from G. B. Lamar to the said The 
 City Council of Augusta, by whom the same 
 are still held and owned; and that by an 
 Act passed on the 23d r)ecember, 1840, the 
 Legislature of Georgia contirmed the pur- 
 chase of the said bridge made l)y the said 
 The City Council of Augusta as aforesaid, 
 and granted them thenceforth the exclusive 
 privilege of building and keeping up bridges 
 across the Savannah river at Augusta, within 
 the corporate limits of the said city, (which 
 were by the said Act extended on the north 
 over the said river to the boundary line be- 
 tween that State and the State of South- 
 Carolina.) with power to collect the toll then 
 authorized by law in relation to the said 
 bridge, but with the proviso that nothing in 
 the said Act conta'ined should be so construed 
 as to impair the right, title, claim or interest 
 of any person or persons in and to the said 
 bridge, as in and by the said Act, printed and 
 published by the authority of the said State, 
 reference being thereto had, will more fully 
 appear. 
 
 That by an Act of the Legislature of South- 
 Carolina, passed the 19th December, 1848, 
 the said bridge across the Savannah river 
 was rechartered and vested in the said Hen- 
 ry Shultz and your orator, John McKinne, 
 their heirs and assigns, for the term of four- 
 teen years, with certain rates of toll therein 
 prescribed, with the proviso, however, that 
 the South-Carolina Railroad Company should 
 be authorized to construct a bridge across 
 
 *61 
 the *Savannah river at any point at or near 
 Hamburg for the transi)ortation of freight 
 and passengers on the said road, and that
 
 McKINNK V. CITY COUNCIL OF AUGUSTA 
 
 *C3 
 
 the said grantees, Shultz and your orator, 
 McKinne. should not be allowed to charjj;e 
 and «-ollect toll as aforesaid at the South- 
 Carolina end of the said lirid;,".*. until the 
 liti;;ation then iiending in the Supreuje Court 
 of the United States in relation to the said 
 brid^'e and the proceeds of its sale, should 
 be determined aj:ainst the said The City 
 Council of Augusta, and that afterwards 
 by an Act of the Legislature of South-Caro- 
 lina, passed the llUh day of Decenilx-r. 1S49, 
 the restrictions imposed by the Act of 1^48. 
 as to the collection of tolls at the said bridge, 
 was repealed, and the said Henry Shultz and 
 your orator, John McKinne, were thereby 
 authorized to collect the rates of toll estab- 
 lished by the Act of ls4s. at the South-Caro- 
 lina end of the said bridge, from all person.s 
 going from the South-Carolina end. but not 
 from persons coming from the Ceorgia end 
 of the said bridge: and it was thereliy also 
 enacted that the collecting of said tttll should 
 not subject the liailroad Company, or the 
 community, to the ]tMynient of double toll; 
 all of which will more fully and at large ap- 
 pear by reference to the said Acts of 1848 
 and 1849. 
 
 Yoiu- ctrators further show unto your Hon- 
 ors, that on the Ulst March. 18,">L articles of 
 agreement in writing, between the said Hen- 
 ry Shultz and your orator, John McKinne. 
 were duly executed by the parties thereto, 
 under their hands and seals, whereby, among 
 other matters not material in this behalf, 
 your orator. John McKinne. bound himsell, 
 upon payment to him by the said Henry 
 Shultz of the sum of fifteen hundred and 
 twenty dollars, with the CJeorgia lawful in- 
 terest, on or before the first day of May, 
 1852, to execute to him, the said Shultz. or 
 such person or persons as he, in writing, 
 might direct to receive the same, a Muit claim 
 <oi}veyance and release of all your orator's. 
 McKinne's. right, title, <lrtim and interest in 
 and to the said bridge, and the franchises, 
 privileges, monies and profits iielonging 
 thereto, of every description, and from what- 
 ever source derived; that the said agreement 
 
 *62 
 Is not yet. *liut soon will be consuniniated liy 
 the payment of the purchase money on the 
 one side, and the execution of the quit claim 
 deed on the other side. 
 
 That on the 12th of Sejiti ml er, 18.')!, the 
 said Henry Shultz, by deed duly executed, 
 conveyed, among other things, to your ora- 
 tors, James Jones and Joseph J. Kennedy, 
 all his, the said Shullz's. title, inten-st. and 
 estate, In and to the said bridge, and the 
 charters thereof granted by the Act of the 
 I>>gislature of South-Carolina of the I'.tth of 
 December, 1S48. amended by the Act of the 
 10th of December. ls4r», as aforesaid, with all 
 the rights, hereditaments and ap|ir.vtenaiices 
 thereto aiipertaining. to be had and lu>ld by 
 them in fee for the persons and purposes there- 
 in mentioned, with the reservation of the use 
 
 and enjoyment of the same during rhe tt^m of 
 his natural life. 
 
 That the said Henry Shultz dejiarted this 
 life intestate, on the l.'Jth day of ( Utober. A. 
 D. 1.s.-jL being a resident of the District of 
 l-]dgefield at the time of his death, and that 
 your orators. James Jones and Joseph J. 
 Kennedy, b«'ing cre«litors of the .said Heiu"y 
 Shultz, afterwards obtained from the Ordi- 
 nary of the said district the grant of the 
 administration of his estate. 
 
 That the charters of the .said bridge con- 
 ferred by the State of tJeorgia in 1S14. tip- 
 on the said Shultz and your orator, McKin- 
 ne, ami in is;;;} upon The Hank of the State 
 of (Jeorgia, were not granted until like char- 
 ters, and with identically the same rates of 
 toll, had been obtained i>y the same grantees 
 respectively from the State of South-Caro- 
 lina ; and it is respectfully submitted that 
 the tolls authorized by the charters from the 
 States of South-Carolina and (Jeorgia to the 
 .said Shultz and McKinne, and The Hank of 
 the State of CJeorgia, res|)ectively, were un- 
 doubtedly designed to be tolls for passage 
 over not one-half merely, but the whole 
 length of the .said bridge: that the said char- 
 ters from the State of (Jeorgia did not con- 
 fer upon the grantees thereof the right to 
 collect the tolls therein speciti»'d. in addition 
 to the tolls prescribed in the charters from 
 the State of South-Carolina to the same gran- 
 tees, but, on the contrary, were intended to 
 
 *63 
 confirm and give full *i'ffect to the grant of 
 tolls contained in the charters from the State 
 of South-Carolina : that such has been the 
 uniform construction of the said charters by 
 the respective grantees thereof, and those 
 claiming under them, for at no time did they 
 ever a.ssnme to .sever or apportion the tolls 
 thereby authorized, by charging, claiming, or 
 taking one part thereof for passage over one- 
 half, and the other part tliere<»f for iias.sage 
 over the (»ther half of the .said bridge; but 
 always and invaiiably exacted bur one toll 
 for tlu' jrivilege of pa.ssing over the enrire 
 lengtn of the said bridire. and '.hat the Act 
 of 1N4() of the State of Georgia, which iter- 
 mits the City Council of Aiigu>.ra to collect 
 the toils flu n authorized by law. should le 
 held to have empowered them t<i exact the 
 whole of such tolls only so long as they 
 >h(aild contiiuie invested with the franchise 
 of taking toll in resi ect to the whole bridge. 
 
 That since the expiration of the charter 
 granted by the Slate of South-Carolina to 
 The Hank of the State of (Jeomia as afore- 
 said, the sai<l The City Council of Augusta 
 have continued and still continue to exact 
 and collect substantially the same rates of 
 tolls as before, without any abatement ; and 
 that since the 10th December. 1.S4S. as your 
 orators are inftuined, large sums have been 
 received by tlu'in feu* suih tolls, amounting 
 in the aggregate to the sum of one hundred 
 thousand dollars or more, and your orators 
 
 25
 
 *63 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 respectfully submit that by the Act of the 
 Legislature oi South-Carolina of 1S4S, the 
 said Shultz and your orator, McKinne. be- 
 came invested not merely with the franchise 
 conferred thereby in respect to so much of 
 the said bridge as is within the territorial 
 limits of that State, but also with the full 
 title, property and ownersliip in and to the 
 material structure of that portion of the said 
 bridge, for and during the term of fourteen 
 years then next ensuing; that although the 
 grantees under the last mentioned charter 
 were restricted temitorarily from collecting 
 tolls at the South-Carolina end of the said 
 bridge, such restriction did not avoid or take 
 away their title and property in said bridge 
 and in the franchise in respect thereto graut- 
 
 *64 
 ed to them by the said charter. Nor *yet 
 did it abridge or impair their legal remedies 
 (by suit at law or in Eijuity.) to recover their 
 fair and just proportion of such tolls, against 
 any person or persons who had actually col- 
 lected and received the same ; nor, least of 
 all, did it amount to a release or assignment 
 of their interest in the same to the said The 
 City Council of Augusta ; that since the 10th 
 of December, 1848, the said The City Council 
 of Augusta have been practically in the pos- 
 session and enjoyment of all and singular 
 the property and interest in the said bridge 
 and the franchise in respect thereto granted 
 by the Act of the Legislature of South-Caro- 
 lina of that date, to the said Shultz and your 
 orator, McKinne ; that the effect of the said 
 charter of 1S4S was to constitute the said 
 Shultz and McKinne substantially co-tenants 
 with the said The City Council of Augusta, 
 in respect to the tolls of the said bridge, col- 
 lected and received by them since the 19ch 
 of December, 1848, and that your orators 
 are entitled to have an account of the said 
 tolls, and to be paid their fair and equitable 
 proportion thereof. 
 
 That on the 3d day of February, 1852, your 
 orators, Jones and Kennedy, claiming under 
 the said Henry Shultz, as aforesaid, erected 
 a toll gate, and proceeded to collect at the 
 South-Carolina end of the said bridge the 
 tolls established and allowed by the said 
 Act of 10th December, 1848, as amended by 
 the said Act of 19th December, 1840, and 
 that thereupon the said The City Council of 
 Augusta, as your orators are informed, 
 raised the rates of toll exacted by them at 
 the Georgia end of the said bridge, to the 
 maximum limited by the said charter from 
 the State of Georgia to the said The Bank 
 of the State of Georgia, with purpose to an- 
 noy, hinder and disturb your orators in the 
 collection and enjoyment of their said legal 
 tolls as your orators believe, and by a formal 
 resolution published and announced that 
 their said high rates would be discontinued 
 when and as soon as your orators should 
 forbear to collect their said tolls at the 
 South-Carolina end of the said bridge ; that 
 
 26 
 
 for some sixteen days, during which your 
 orators collected the tolls authorized by their 
 said charter, the said The City Council of 
 
 *65 
 *Augusta persisted in exacting the increased 
 rates of toll above mentioned at the Georgia 
 end of the said bridge, thereby driving off 
 the custom of passengers and produce, and 
 greatly reducing the profits which your ora- 
 tors would therefrom have received had the 
 said rates been reduced one-half as they 
 should have been, or been permitted to re- 
 main even at their former standard ; and al- 
 though by an arrangement between your ora- 
 tors and the South-Carolina Railroad Com- 
 pany, yovir orators are, at present, forbear- 
 ing to exact tolls at the said bridge — the 
 said South-Carolina Railroad Company un- 
 dertaking to be responsible therefor to your 
 orators, if their right to collect such tolls 
 should be adjudged valid — yet this arrange- 
 ment is but temporary, being limited to the 
 1st day of June next, and your orators ap- 
 prehend and verily fear, that when and as 
 soon as they shall again begin to collect their 
 tolls at the said bridge, the said The City 
 Council of Augusta will again resort to their 
 device of exacting and collecting the said ex- 
 cessive rates of toll at the Georgia end of 
 the said bridge, with the same view of an- 
 noying, hindering and disturbing your ora- 
 tors in the exercise and enjoyment of their 
 just rights in this behalf. 
 
 That by the said Act of 10th December, 
 1848, your orators are advised, the former 
 charter for the said bridge granted by the 
 State of South-Carolina to the said The Bank 
 of the State of Georgia, was renewed and ex- 
 tended in favor of the said Shultz and Mc- 
 Kinne for the term of fourteen years, with 
 all the exclusive privileges conferred by that 
 Act and by the original charter of 1813 there- 
 in referred to ; that the Act of the State of 
 Georgia, granting as hereinbefore mentioned 
 to the said The City Council of Augusta the 
 exclusive privilege of building and erecting 
 and keeping up bridges across the Savannah 
 river, cannot impair the grant from the 
 State of South-Carolina to the said Shultz 
 and jNIcKinne, nor confer any authority to 
 build in or over that part of the Savannah 
 river between Campbelltown and Sand-bar 
 Ferries, which lies within the sovereignty 
 and territorial jurisdiction of South-Carolina, 
 in derogation of the Acts of that State of 
 1813 and 1830, and 1848, hereinbefore men- 
 
 *66 
 tion*ed. But the said The City Council of 
 Augusta, imder color of the last mentioned 
 Act of the State of Georgia, have undertaken 
 to build, and have recently actually built, a 
 bridge from the Georgia shore, at or near the 
 foot of Mill-street in iVugusta, not to any 
 island in the Savannah river, but over the 
 whole stream of the said river, to a point 
 on the opposite bank of the said river; with-
 
 McKINNE V. CITY COUNCIL OF AUGUSTA 
 
 •68 
 
 in tlip territorial limits of South-Carolina, lie- 
 twcen the CaniiiiK'lltown and San(l-i>ar FtT- 
 ries, ami within two miles of tlie itridue of 
 your orators; that tlie said now lirid;:e is not 
 meant nor desiirned as a private l)ridire for 
 the use of the individuals now comixisinf; the 
 said 'Hie City Council of Aujiusta, iiut it is 
 in operation distinctly and avowedly as a 
 public toll bridge; that by the direction of 
 the said The City Council of Au;custa, the 
 same rates of toll have been demamled and 
 taken for passajie over the same as at the 
 Cieorjiia end of the other and lower bridj^e be- 
 fore mentioned, and as if for the purp<ise of 
 evadius the jurisdiction of the law of the 
 State of South-Carolina, the said tolls are 
 demanded and taken exclusively at the 
 Georgia end of the said i)rid^e ; that inile- 
 rendent of the express iirohibiiion in the 
 charter of your orators against such a bridj^e, 
 its erection is unlawful, because the said 
 new bridge is so near the established and 
 chartered bridge of your orators, as inevi- 
 tably to reduce greatly the profits, and per- 
 haps even destroy the value of the latter 
 bridge, by drawing off and diverting the 
 custom of passengers and produce, and yet 
 no permission has been granted by the Legis- 
 lature of South-Carolina, expressed by Act 
 or otherwise, for the erection of any such 
 new bridge; and that the penalty of live 
 thoasand dollars would lie a very inadeijuate 
 satisfaction for the in.juiy which your or- 
 ators will, in all probability, sustain from the 
 violation of their said charter, which ,the 
 said The City Council of Augusta have per- 
 petrated as aforesaid. 
 
 That during the life time of the said Henry 
 Siiultz, before the building of the new bridge 
 was begun, and whilst the said The City 
 Council of Augusta were advertising the 
 pulilic that proposals for the const i-uction 
 
 *67 
 of the said new bridge were in*vit('(l. .md 
 would be received by them — that is to say. 
 in the month of August, A. D., 1850, the said 
 Henry Shultz, by public adverti-sement, over 
 his own signature, inserted in two of the 
 daily paiiers published in the city of Augusta, 
 gave to the said Tlie City Council of Augusta 
 formal notice of his rights under tlie said 
 charter, granted iiy the State of South-Car- 
 olina to himself and your orator, McKinne, 
 and forewarned them against carrying into 
 execution their said contemplated enterprise; 
 but the remonstrances and warnings of tlie 
 said Shultz were utterly disregarded. And 
 your orators furtlier show unto your Honors, 
 that your orators, .Jones and Kennedy, before 
 they proceeded to a.ssert their rights, under 
 their .said cliarter, by the collection of tolls at 
 the South-Carolina end of tlie said bridge, 
 opened a communication with the said The 
 City Council of Augusta, in the hope that by 
 a sale and transfer to them of your orators' 
 interest in the said bridge, or by some other 
 
 Iiroper arrangement, all disputes between 
 tiiem and your orattu-s might l>e avoided, but 
 the said The City Council of Augusta did not. 
 nor would recognize your orators as having 
 any property or intt-rest whatever in the 
 said itridge — all which actings and doings 
 of the said The City Council of Augusta art^ 
 contrary to equity and good conscience, and 
 tend to the manifest injury of your orators. 
 In tender consideration whereof, and foras- 
 much as your orators are without adiniuate 
 remedy in the premises, save in this Jlon- 
 orai>le ("ourt, where alone such matters are 
 properly cognizable and relievable. To the 
 end, thert'fore, tliat the said The City Coun- 
 cil of Augusta may, upon oatli, true, direct 
 and perfect answer make to all and singular 
 the matters and things hereinbefore set forth 
 and alleged, and that as fully as though the 
 same were here repeated, and they thereunto 
 particularly interrogated, and in especial 
 that the .said The City Council of Augusta 
 may .set forth and exhibit the deeds of con- 
 veyance hereinbefore referred to from the 
 said B. J. Earle to Samuel Hale, from 
 Samuel Hale to The Bank ot the State of 
 Georgia, from the Bank of the State of 
 Georgia to (Jazaway B. Lamar, and from 
 the .said (J. B. Lamar to the said The City 
 
 *68 
 CouiKJl of .Vugusta. and that the *rights of 
 your orators under their charter from the 
 State of South-Carolina may be set up and 
 asserted in respect to the tolls of the Augusta 
 bridge, received by the said The City Coun- 
 cil of Augusta since the 10th December. 1848, 
 and that they may be n^iuired to discover 
 and set forth the aggregate amount of such 
 tolls received by them since the date la.st 
 mentioned, and what proportion thereof has 
 been received from per.sons passing from the 
 South-Carolina to the Georgia end of the said 
 bridge, and that they may be required to set 
 forth and discover what was the amount of 
 said tolls received by them from the 10th 
 I)ec(«mber, 184S, to the lOtli December, 1840. 
 and what the amount thereof received from 
 the date last mentioned to the l.">tli October, 
 18r>l, !ind \ lat the amount thereof received 
 from the date last nientioned to the .'Jd Feb- 
 ruary, 18r>2, and what the amount thereof 
 received from the date last mentioned to the 
 coming in of their answer. And that au 
 ai'count may be taken of all and singular the 
 said tolls so received by them since the 
 lOtli December, 1848, and that they may be 
 ordered and decreed to jiay to your orators 
 such fair and ecpiitable proportion thereof as 
 your orators may apiH'ar to be justly en- 
 tith'd to, under their said charter, and that 
 they may be adjudged to be entitled to re- 
 ceive and collect for passage over the Augus- 
 ta bridge, from the South-Carolina to the 
 (Jeorgia bank, no more than one moiety of 
 the tolls prescribed in the charter granted 
 by the State of Georgia to The Bank of the 
 
 27
 
 *68 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 State of Georgia in 18.33. and tliat they may 
 be restrained and enjoined from exacting 
 and receiving, in futnre, any larger or great- 
 er proportion of such tolls; and that they 
 may also be restrained and enjoined from 
 collecting and receiving tolls for passage 
 over the said new bridge across the Savannah 
 river, and that they may be constrained whol- 
 ly to discontinue and abandon the use of the 
 said new bridge and that the same may be 
 ordered to be closed and shut up, and from 
 allowing any person or persons to use the 
 same for passing or going to or from one 
 bank of the said river to or towards the other 
 side within the jurisdiction of the State of 
 South-Carolina, and that such other and 
 
 *69 
 further relief may *be extended to your or- 
 ators as their case, upon the whole, may seem 
 to require, and to e<^iuity may belong. 
 
 May it please your Honors to grant to your 
 orators not only your writ of injunction to 
 restrain and prevent in future the said The 
 City Council of Augusta, their servants, 
 agents, bailiffs and attorneys, from exacting 
 and receiving for passage over the Augusta 
 bridge, from the South-Carolina to the 
 Georgia end thereof, any larger or greater 
 proportion than one moiety of the tolls pre- 
 scribed by the charter granted by the State 
 of Georgia to The Bank of the State of 
 Georgia, as aforesaid, and from collecting or 
 receiving any tolls whatever for passage over 
 their said new bridge, and from using or 
 allowing the same to be used by any person 
 or persons whatever for passing from one 
 bank or side of the said river to or towards 
 the other and opposite bank or side thereof, 
 within the jurisdiction of the State of South- 
 Carolina, so that the same may be entirely 
 and effectually closed and shut up, but also 
 your writ of subpteua, &c. 
 
 Notice having been published, in pursuance 
 of an order made by the Commissioner, that 
 the defendants demur, plead or answer to the 
 bill within three months, the following plea 
 was filed by the defendants: 
 
 This defendant by protestation not con- 
 fessing or acknowledging all or any of the 
 matters and things in said complainants' said 
 bill mentioned, to be true, in such manner 
 and form as the same are therein and there- 
 by set forth and alleged, doth plead to the 
 jurisdiction of this Honorable Court, and 
 .says: That the defendant ought not to be 
 required to plead unto the matters and things 
 charged in said bill, and that this Court has 
 no authority to decree thereon against this 
 defendant ; because this defendant, says, 
 that this defendant is a Municipal Corpora- 
 tion, created by and existing in the State of 
 Georgia, and is not and never has been with- 
 in or resident of the State of South-Carolina. 
 All which this defendant avers to be true, 
 and pleads the same to the jurisdiction of this 
 
 *70 
 Honorable Court, and humbly demands *the 
 2S 
 
 judgment of this Court, whether the defeiicl- 
 ant ought to be compelled to make any an- 
 swer to the said bill of complaint, and hum- 
 bly prays to be hence dismissed, &c. 
 
 (Signed) The City Council of Augusta, 
 
 By Wm. E. Dearing, Mayor. 
 
 Dunkin, Ch. This cause was heard on the 
 bill, and plea to the jurisdiction submitted 
 on behalf of the defendants. The counsel for 
 the complainants declined to argue the que.«- 
 tion, and the Court is therefore unprepared 
 to anticipate the views which they may have 
 entertained. 
 
 Tlie general rule of this, as well as every 
 other well regulated tribunal, is, that only 
 parties resident are amenable to the jurisdic- 
 tion of the Court. The exception to the rule, 
 both at Law and Equity, is, that absent per- 
 sons, interested in property within the juiis- 
 diction, may be sul)jected to the cognizance 
 and decree of the Court in reference to such 
 property. It seems at one time to have been 
 supposed, that the Act of 17S4, may have ex- 
 tended the jurisdiction of this Court in refer- 
 ence to persons residing beyond the limits of 
 the State. Pint more than a quarter of a cen- 
 tury ago. this Act was construed and ex- 
 plained in Winstanley v. Savage, 2 McC. Eq. 
 4.35. It was there held, that the Act of 17S4, 
 "was not meant to introduce .so new and 
 dangerous a principle as the one contended 
 for. It merely meant to regulate the pro- 
 ceedings in cases where non-residents could 
 be made amenable to the jurisdiction of the 
 Court by holding property within it." It is 
 believed that this construction has not since 
 been called in question, and the decision 
 was fully recognized, and the rule re-athrm- 
 ed in Garden v. Hunt, Chev. Eq. 42. 
 
 It is admitted that the defendants are 
 non-residents, and the averment of the bill 
 is, that they have no title to any part of 
 the property in controversy within the State 
 of South-Carolina. The principal relief 
 sought by the bill is to have the defendants 
 restrained and regulated in the collection of 
 tolls, as they are now in the habit of col- 
 
 *71 
 lecting them on the Georgia side of the *riv- 
 er. It was once said by a Lord Chancellor, 
 '•I shall never make an order merely in ter- 
 rorem which is to be effective only against 
 the ignorant, or those who do not inciuire 
 into the extent of my jurisdiction. I shall 
 make no order but such as every man is 
 bound to obey on pain of contempt." 12 
 Eng. C. C. R. 44. Now suppose this Court 
 should enjoin Wm. E. Dearing, the defend- 
 ant, from collecting toll, or restrain him 
 from demanding more than a certain amount, 
 in what manner could the order be enforced, 
 or how could the defendant be subjected to 
 the penalties of contempt? The most strin- 
 gent attachment would be mere brntum ful- 
 men to a party beyond the reach of the arm 
 of the Court. 
 
 The bill prays an account of tolls hereto-
 
 McKlWK V. CITY COUNCIL OF AUGTSTA 
 
 fore collected on the (;eor;;ia side of the riv- 
 er; ajul, siiiijiose a decree to lie rendered 
 against the defendant for an ascertained snni, 
 what could it avail the iilaintitTs in this 
 State, ajrainst a defendant, who has neither 
 person to lie attached, nor property out of 
 which it niiiilit be levied under the process 
 of this Court V And if suit were instituted 
 In Georj;ia, founded upon the decree,, 
 although the judgment would lie conclusive 
 upon every other matter, the <pu'stion of 
 jurisdiction is always open to imiuiry, and 
 this imiuiry woidd lie fatal to the etticacy of 
 the whole proceeding, against a citizen of 
 Georgia. Assuming then the averments of 
 the hill to be true, the Court is of the opin- 
 ion that the defendants are not amenable to 
 the jurisdiction of this Court, and that the 
 plea nuist be sustained, and the bill dis- 
 missed. 
 
 It is so ordered an<l di-creed. 
 
 The plaintiffs appealed from the decree, 
 and moved for its reversal uiion the grounds: 
 
 1. The decree is erroneous in assuming 
 that the defendants have no property within 
 the jurisdiction of the Court, as the bill con- 
 tains a distinct averment of their being the 
 owners of four lots or parcels of land in the 
 Town of Hamburg, with a full description 
 of the boundaries thereof, and a precise re- 
 cital of the derivati<iu of their title thereto. 
 
 2. The "principal relief" sought by the bill 
 
 *72 
 was to have an *account of the tolls receiv- 
 ed by the defehdants at the Augusta bridge 
 since 10th December. 1S4S. and an injunc- 
 tion against their collecting tolls at their new 
 or upper bridge, or using or allowing to be 
 u.sed the latter bridge for passage across the 
 river; and the decree errs in supposing the 
 bill to be otherwise. 
 
 3. The objection to the jurisdiction of the 
 Court rests upon no suthcient grounds ; and 
 the defendants' plea, it is respectfully sul> 
 mitted, ought to have been overruled. 
 
 Bauskett, Carroll, for appellants, cited 7 
 Stat. 210: Kinloch A: riiilliiis v. Meyer, Sp. 
 E(|. 427; Rowden v. Scliatzell, Hail. Kq. 300; 
 Story Contl. Laws. § 541). 
 
 Miller, I'etigru, contra, cited .MIIIit v. 
 Miller, 1 Bail. 242; .^ Geo. 11. 83; Mitf. PI. 
 33; 1 Bl. Com. (U); 2 Thom. Coke, 18; 2 Bl. 
 Com. !H. 
 
 The uijinion of flie Court was delivered by 
 
 DUNKIN, Ch. It is true that the bill 
 prays an account of tolls collected, since De- 
 cember. 184S, by the defendants, iiut this is 
 conse(|uent oidy upon the adj\idication which 
 the Court is prayed to make, that the defend- 
 ants are entitled to re<-eive and collect, for 
 passage ovt'r the Augusta bridge, no more 
 than one moiety of the tolls prescribed by 
 the Georgia charter of 18;{;5 ; jmd to this in- 
 tent the complainants pray a writ of injunc- 
 tion, to restrain and iirevent in future tlie 
 
 defendants from exacting and reci'iving. for 
 passage over the Augusta bridge, from the 
 South-Carolina to the Geiu-gia end thereof, 
 nuMV than one nioiet.v of tlie tolls prescrib- 
 eil by the charter of 183.3, and from collect- 
 ing any tolls whatever on the new bridge, 
 which tlu-y are charg»'d to have erected at 
 .Mill-street, or from allowing the same to lie 
 used, '"so that the same may be entirely 
 and effectually closed and shut up." 
 
 At the hearing, the counsel f<ir the com- 
 [ilainants declined to argue the (piestion aris- 
 ing on the plea to the jurisiliction. and the 
 Court could only infer that the positions 
 assumed were those which the counsel for 
 the defendants had discu.s.sed, and upon these 
 the judgment of the Court was iimnonnced. 
 •73 
 
 ♦It is now said, that it appears from the 
 bill itself, tnat the defendants held property 
 in the State of South-Carolina, and that it 
 was intended to maintain the jurisdiction 
 on that ground. It is by no means «ertain 
 that any such averment is made in the bill. 
 It is very certain it is not set I'orth as a 
 ground upon which tins Court should assume 
 jurisdiction against the defendants, nor did 
 the Court receive any intimation to that 
 effect. The subject matter in controversy 
 is the Augusta bridge, properly so called, 
 and the newly erectwl bridge at Mill-street. 
 The complainants rely on the Act of 1848, 
 as vesting in them the bridge, and the 
 exclusive right from Campiielltown Ferry 
 above, to the Sand-bar Ferry below. Au- 
 gusta, — by which Act (aver the complain- 
 ants) they "became invested, not merely with 
 the franchise conferred thereby in respect 
 to so much of the said bridge as is within 
 the territorial limits of tue State, but also 
 with the full title, property and ownership 
 in and to the material structure of tlmt por- 
 tion of the bridge." In the narrative [lart 
 of the bill it had Ikhmi stated, that the abut- 
 ment and landing of the bridge on tiie South- 
 Carolina side of the river were upon i>arts 
 of four lots of land in the town of Hamburg — 
 that (Jazaway B. Lamar, having a charter 
 of the bridge from the State of South-Caro- 
 lina, until 1848, and being also owner of these 
 lots, on the 21st .Taiuniry, I84(t, <onveyed the 
 charter and the lots to the defendants. The 
 complainants then aver the re-charter to 
 themselves in 1848, and then<-e insi.st on their 
 exclusive right to restrain the defendants 
 from interfering with their property or 
 privileges. It may answer the jiurpose of an 
 argument to say, that tiie deft-ndants are 
 averred to have projierty in South-Carolina; 
 but it has been, tin another occasion, strenu- 
 ously contended, that not oidy the franchise, 
 but the structure of the bridge, including 
 the abutments and landin.:. jiass with the 
 ciiarter, and the proviso in the <leed from 
 Judge Farle. under whom defendiints are 
 alb'ged to derive title, was urged in support 
 of the argument. What is then averred to be 
 
 29
 
 73 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 the property of the defeiulants within the 
 State of Soutli-Carolina, which is to give 
 the Court cognizance of tliis cause V Upon a 
 
 *74 
 strict examination, it may he they *liave a 
 title to so much of tlie four lots as is not 
 occupied by the abutment of the bridge and 
 the landing. Of course, that is not the sub- 
 ject matter of controA'ersy, but must be 
 admitted to be the undisputed property of 
 the defendants. Can this give the Court ju- 
 risdiction so as to authorize the impleading 
 of the absent defendants, and the adjudica- 
 tion of their rights upon the matters present- 
 ed? It is in accordance with the first prin- 
 ciple of justice that no person shall be con- 
 demned until he has been heard. And, as a 
 general rule, no Court should pass on the 
 rights of those not within their jurisdiction. 
 To this rule there are exceptions, or rather 
 qualifications, equally well recognized; some 
 arising from the provisions of the statute 
 law, and others from the practice of Courts. 
 Among the latter are proceedings in Admiral- 
 ty, whifh act in rem, and whose proceedings 
 are conclusive upon the subject matter within 
 their jurisdiction. Courts of Common Law 
 entertain jurisdiction against an absent de- 
 fendant by proceedings in attachment, under 
 the custom of London or by statute. But 
 it is well settled that the judgment in attach- 
 ment has no effect beyond the property at- 
 tached. "If those goods, credits and effects 
 are insutficient to satisfy the judgment, and 
 the creditor should sue an action on that 
 judgment, in the State where defendant re- 
 sides, to obtain satisfaction, he must fail ; 
 because the defendant was not personally 
 amenable to the jurisdiction of the Court 
 rendering the judgment." Such is the lan- 
 guage of Chief Justice Parsons, in Bissell 
 V. Briggs, (9 Mass. R. 46S.) See also Story 
 Confl. Laws, § 549. We have also an Act of 
 Assembly which authorizes proceedings 
 where one of several executors is absent 
 from the State ; and the Act of 1823 gives 
 a remedy in case of the absence of one of 
 several parties to a joint contract. But both 
 Acts provide, that the interests of the absent 
 party shall not be affected. The attachment 
 Acts do not extend to Courts of Equity. But 
 it has been the practice, both in England and 
 in this country, to entertain suits in relation 
 to property within the jurisdiction, although 
 some of the parties interested in the subject 
 matter reside beyond the jurisdiction of the 
 
 *75 
 Court. Mr Mitford says: "A *suit may 
 affect the rights of persons out of the juris- 
 diction of the Court, and consequently not 
 compellable to appear in it. If they cannot 
 be prevailed upon to make defence to the 
 30 
 
 bill, yet, if there are other parties, the Court 
 will, in some cases, proceed against those 
 parties." "But if the absent parties are to 
 be active in tiie performance of a decree, if 
 they have rights wholly distinct from those 
 of the other parties, the Court cannot pro- 
 ceed to a determination against them." Mitf. 
 PI. 33. This Court is in the familiar habit of 
 entertaining proceedings in partition where 
 a portion of the defendants are beyond the 
 limits of the State. It has also, in some in- 
 stances, taken cognizance where the complain- 
 ant has a plain legal demand against an ab- 
 sent defendant who has property in this State, 
 but which, from its peculiar position, is not 
 subject to the ordinary process of attachment. 
 Such is the case of Kinloch & I'hillips v. Mey- 
 er, administrator, Speers' Eq. 42S, which was 
 a proceeding against the administrator of an 
 intestate and an absent distributee, to sub- 
 ject the interest of the latter to the payment 
 of a debt; and so of the case of Bowden v. 
 Schatzell, Bail. Eq. .369 [23 Am. Dec. 170]. 
 It cannot be supposed that in this case the 
 complainants have a plain legal demand 
 against the defendants, or any demand at 
 law ; mucii less is it averred that tlie prop- 
 erty of the defendants in this State, what- 
 ever it may be, is not subject to a writ of 
 attachment. 
 
 The complainants do not ask the aid of 
 this Court to subject the defendants' proper- 
 ty in this State to the satisfaction of a claim, 
 much less is it averred that such property 
 is the subject matter of controversy. They 
 claim certain exclusive rights to toll, &c. 
 under the charter of 1S4S, and they ask the 
 assistance of this Court in enforcing them 
 against the absent defendants. As well might 
 a bill be filed in Georgia for a divorce against 
 f), defendant resident in Charleston, who 
 happened to own a water lot in Augusta ; or 
 a Tennessean be impleaded in the Court of 
 Equity of South-Carolina, for the specific 
 performance of an agreement in relation to 
 real estate in Chattanooga, because the com- 
 plainant had been fortunate enough to find 
 a bale of the defendant's cotton in Its transit 
 
 *76 
 through this State. There is *avowedly no 
 precedent for the proceedings of the com- 
 plainants in this case, and they are equally 
 without authority from the general principles 
 usually recognized in well regulated tribu- 
 nals. 
 
 It is ordered and decreed that the appeal be 
 dismissed. 
 
 JOHNSTON, DARGAN and WAKDLAW, 
 CC, concurred. 
 Appeal dismissed.
 
 SIIANDS V. TIUPLET 
 
 *7S 
 
 5 Rich. Eq. 76 
 
 A. SHAXDS. ,.t al. v. \V. TUll'LET. et al. 
 
 (Columbia. Ntiv. ami Dfc. Term, LSTJ.) 
 
 [Judicial SalcH <J=Drc* : \(iiiiiiihlf W'ntcrs C=> 
 4ti.J 
 At a C«imiiiis.^ii>m'i"s saU- of ' '. tlic plat 
 exiiibitcd rcini'Sfiitcd a livor as ru tlirouy;h 
 
 tiic tract and covcriiii; a portion < • laud: 
 
 till- laud was sold liy the acif: tlif n.iT, at a 
 place where it laii tliiou^h the tract, contained 
 olistructinns to the na\ i^;:iti<in, but was uavif,'a- 
 ble for I)iiats above and bilnw that place: — //rW, 
 that the purchaser was not entitled to a credit 
 on his bond for the i)urchase money, for that 
 portion of the land forming tlie bed of the river. 
 
 [Kd. Note.— Cited in State v. Tacilic Cuano 
 Co.. 'S2 S. C. T.">: State v. I'inrkney. Id. "lOS: 
 State ex rel. Columi)ia I{ri(li;e Co. v. <'ity of 
 Columbia, 27 S. C. Hlj, 8 S. K. 5"): Southern 
 Tower Co. v. Cassels, !»5 S. C. 47U. 7!> S. K. 
 453. 
 
 For other cases, see J\idiclal Sales, Cent. Dig. 
 § 100: Deo. Disr. <®=»5U: Navi}:al)le Waters, 
 Cent. Dig. §§ 2S7. 2SS ; Dec. Dig. <©=»4U.] 
 
 Before Wardlaw. Ch., at riiion. June, 1S52. 
 
 The circuit decree is as follows: 
 
 Wardlaw, Ch. In this case objeition is 
 made to the confirmation of the Connnission- 
 er's report on sales, in behalf of James Koj;- 
 ers, a purchaser of land, on the j^round that 
 he had been recjuired to jiive bond for forty- 
 three acres covered by Tiixer river. It ap- 
 pears that the Conmiissioner sold this tract 
 of land by the acre, according to a plat made 
 by John (iibbs, dei)Uty surveyor, which repre- 
 sented the tract to lie on both sides of Tij-'er 
 river, at a place called Glenn's Shoals, and 
 to contain 74.''. acres, and that James Rogers 
 was the last biddt-r, at the price of ."fl4,41>."t.J);'., 
 and paid one-third of the purchase money in 
 cash, and executed his bond with approved 
 sureties for tin- balance, but declined to re- 
 
 •77 
 ceive a conveyance, antl insisted that *his 
 bond shoidd be credited lor that portion of the 
 land forming the bed of the river: that since 
 the sale, the surveyor had again surveyed 
 the tract, and ascertained that 4.'? of the 748 
 acres were covered by the stream of Tiger 
 river. That this tract is composinl of five 
 or six grants, the corners of whicli are repre- 
 sented on the banks of the river; that Tiger 
 river has been navigable for boats for twenty- 
 five years, from (Jleim's Shoals to its mouth 
 in Broad river, and above the shoals for eight 
 or ten miles to Cook's bridge : but that ob- 
 structions to the navigation have innneniori- 
 ally existed at Glenn's Shoals, and the prac- 
 tice has been to haul tiie cotton and otlier 
 freight of the boats around the shoals. That 
 the water power at the shoals is excellent for 
 nulls and other factories, and adds much to 
 the value of tiie estate. 
 
 I am of opinion that the purchaser is not 
 entitled to the deduction lie seeks. He pur- 
 chased according to the plat representing 
 the 43 acres to be covered by water. Bt'sides, 
 this portion covered by the stream of a river 
 not there navigable, may be well conveyed to 
 
 him. Witter v. Harvey, 1 McC. G7 [10 Am. 
 I>ec. (J."j0l ; Cates v. Wadlington. 1 McC. 580 
 110 Am. Dec. (ilHi] : Noble v. Cuniungham, 
 Mc.Mul. Fxi. I'M); McCnllough v. Wall, (4 
 Rich. OS [;■>;! Am, Dec, 71ol,) It is ordered 
 and decreed, that tlie Commissioners report 
 on sales be confirmed. It is also ordered, that 
 the Coinnnssioner proceed in the collection of 
 the funds, and after |»aying the costs and 
 the amount rei>orted for the maintenance of 
 the two old slaves, that he make dr>tributioM 
 of the same according to the rights nf the 
 parties. 
 
 Jauies Rogers appealetl. on the gro\uid: 
 
 Becau.se Tiger river iieing a navigabh> 
 
 .stream, he siiould have l»een allowed a credit, 
 
 or deduction on his bond, for the tp'antity of 
 
 land covered by the bed of said river. 
 
 Dav.kins, Thomson, for apitellants. 
 
 Bobo. contra. 
 
 The i>pinion of the Court was dellven-d by 
 
 WAKDL.VW. Ch. It is assumed in the 
 ground of appeal, that the soil c<)vered by the 
 waters of a navigable river belongs to the 
 State, and not to the riparian proiirietors. The 
 
 *78 
 ter)n navi*gable is equivocal. By the com- 
 mon law. rivers are regarded as navigable 
 only to such extent as the tide fiows and 
 ebbs; and the property in the betls of rivers 
 navigaide in this sense, is undoubtedly in the 
 State. But in our statutes, and in popular 
 speech, navigaide rivers mean those which 
 may be navigated by shii»s or boats: and as 
 to rivers of this class above tide water, it is 
 not to be conceded that the State remains 
 owner of the soil of the beds after granting 
 the lands on both sides. Sir John l.^-ach 
 says, in Wright v. Howard, 1 Con. Eng. Ch. 
 R. 102, '•prima facie, the proprietor of each 
 bank of a stream is the proprieter of half 
 the land covered by the stream ;"' and Sir 
 Matthew Hale remarks, in his treatise de jure 
 maris. &c.. c, 1, "if a man be owner of the 
 land of both sides of a fresh river, in com- 
 mon presumption he is owner of the whole 
 river." In chapter 3 of this celebrated trea- 
 tise, it is said: '"there be some streams or 
 rivers that are private not only in propriety 
 or ownership, but al.so in use as little streams 
 or rivers that are not a common passage for 
 the King's people. Again, there be other riv- 
 ers, as well fresh as salt, that are of common 
 or public use for carriage of boats and light- 
 ers: and these, whether they are fresh or 
 salt, whether they fiow or refiow, (tr not, are, 
 prima facie, publici juris, connnon highways 
 for man or goods, or both, as well where they 
 are become to be of private jiroperty, as in 
 what parts they are of the Kings pro|iriety," 
 
 Tiger river, concerning the bed of which 
 is the present controvers.v, is a small stream 
 never Hoatable at (ilenn's Shoals: and it is 
 a tributary of Broad river, whi< h disem- 
 bogues into the Congaree; and we are now 
 
 :]1
 
 *78 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 sitting within hearing of the roar of waters 
 over the falls of the Congaree. The case 
 does not require us to determine whether the 
 doctrine of the common law concerning navi- 
 gable rivers in reference to riparian rights, 
 should not receive some modification as to 
 some of the great livers of the United States ; 
 and we reserve this question, following the 
 example of the Court of Law in the recent 
 and Avell considered case of McCullough v. 
 Wall, 4 Rich. 68 [53 Am. Dec. 715]. It is 
 
 *79 
 truly suggest*ed in that case, "that no au- 
 thoritative decision has yet lieen made in this 
 State which has changed the common law on 
 the subject." And further, to borrow the 
 language of that decision: "The rivers of our 
 own State are not of remarkable magnitude, 
 and whether we adhere to the common law 
 delinitlon, or consider as navigable all riv- 
 ers that may be navigated by sea vessels, 
 or all that are by nature floatable, we hesi- 
 tate not to declare, that this Court, if it 
 should feel itself at liberty, from considera- 
 tions of public convenience, to assume legis- 
 lative discretion in the matter, is not likely 
 by any decision to extend the rules which 
 by the common law are applicable to navi- 
 galDle rivers, to any stream above those falls, 
 which by nature obstructed the serviceable 
 use of its water for transportation. Above 
 those falls as below, the right of tlie public 
 to improve a river, and to use it as a high- 
 way, subsists: to that the proprietary right 
 in the soil is subject: but so subject, the 
 proprietary right exists in the owners to 
 whom it has been granted — above the falls, 
 at any rate, as we may now safely say." 
 We entirely concur in this doctrine as to 
 rivers altogether within the State, reserv- 
 ing our opinions as to rivers which may be 
 coterminous between this and other States. 
 Without discussing the authority of the 
 Court to alter the common law as to navi- 
 gable rivers, I venturs the remark that it 
 would be inexpedient even for tlie Legisla- 
 ture to divest the proprietors of lands, bound- 
 ing on rivers above tide-water, of their 
 rights to tlie soil covered by the waters of 
 the rivers. If tlie rivers be needed as liigh- 
 ways, the proprietary rights are properly sub- 
 ject to a servitude for the public use, as in 
 the case of highways upon land ; but beyond 
 this, there should be no restrictions upon the 
 ownership of the rivers. It would not be 
 safe to adjudge that the mill at Glenn's 
 Shoals belongs to the State. 
 
 The Act of 1784, 2 Brev. Dig. 4, provides, 
 that deputy surveyors, on creeks (arms of 
 the sea) and rivers, navigable for ships 
 or boats, shall lay off their surveys by meas- 
 uring four chains back from such creek or 
 river for one chain fronting and bounding 
 on the same, and that surveys contravening 
 
 *80 
 this regu*lation shall be void. It seems 
 
 that the Surveyor General, in pursuance of 
 this regulation, has instructed his deputies, 
 for a long time past, not to cross navigable 
 creeks or rivers in their surveys. It is ar- 
 gued, that this enactment makes void any 
 grant for land covered by a stream naviga- 
 l)le for ships or boats. But it is obvious, that 
 the legislature merely intended to prevent 
 particular grantees from engrossing river 
 lands, and has determined nothing as to the 
 extent of the rights of grantees of lands 
 bounded by rivers. The instructions of the 
 Surveyor General to his deputies could not 
 alter the law, if they were so intended ; but 
 I do not understand them as aiming at more 
 tlian to secure to the separate proprietors 
 of opposite banks tlie ownership of the rivers, 
 usque ad filum aqua?. 
 
 If the foregoing views should be utterly 
 unsound, still the appellant is not entitled 
 to his motion. He bought the land in ques- 
 tion according to a plat which represented 
 the forty-three acres, for which he declines 
 to pay, as covered by the stream of Tiger 
 vi\ev ; and he gave his bond for the pur- 
 chase money. The general presumption is, 
 that every person knows the law ; and in this 
 instance it is no false presumption, for the 
 purchaser is an expert lawyer. He knew 
 what interest he was acquiring in the bed of 
 the river. One may readily conceive cir- 
 cumstances under which land covered by 
 water would be made more valuable than 
 any e(iual portion of dry land. Such I sup- 
 pose to be the fact in the present case. At 
 least, there is no evidence that the purchas- 
 er is required to pay for more acres than he 
 expected to pay for at the time of his pur- 
 chase. 
 
 The proceednre in the present case seems 
 to be supported by the case of Noble v. Cun- 
 ningham [Mc^Iul. Eq. 289], cited in the cir- 
 cuit decree ; but it is not clear, that a Chan- 
 cellor can afford relief to a complaining 
 purchaser, except by opening the biddings. 
 In general the Court mu.st either confirm 
 the sale, or order a resale. It is doubtful 
 whether, in any case, deduction from the 
 amount of the bid should be allowed. 
 *81 
 *It is ordered and decreed, that the appeal 
 be dismissed, and the Circuit decree be af- 
 firmed. 
 
 JOHNSTON, DUNKIN and DARGAN, CC, 
 concurred. 
 
 Decree affirmed. 
 
 5 Rich. Eq. 81 
 
 WILLIAM WRIGHT v. N. R. EAYES. 
 
 (Columbia. Nov. and Dec. Term, 1S.j2.) 
 
 [Limitdiion of Aciions <g=:5l0.] 
 
 To a bill for foreol )3ure of a mortgage of 
 land, agaiust cue who holds, through iutermedi- 
 ate conveyances, under the mortgagor, the stat- 
 
 <©=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 KETC'HIN' V. BEATY 
 
 •83 
 
 ute of limitations is inapplicable — altliDiiKb the 
 defendant and those under whom he claims have 
 been in possession more than ten years. 
 
 [Ed. Note.— Cited in llaii)er v. liarsh, 10 
 Rich. E(i. 151.'; Norton v. Lewis, 3 S. C. :V2; 
 Clark V. Smith, 13 S. C. (J(XJ ; Lyn<h v. Han- 
 cock. 14 S. C. 88; Pegues v. Warley, Id. INS. 
 
 For other cases, see Limitation of Actions, 
 Cent. Di?. S 34; Dec. Di^'. <©=9U).l 
 
 The doctrine of Thayer v. Cramer, 1 McC. 
 Eq. 395, re-alHrmed in Smith & Ciittino v. Os- 
 borne, 1 Hill, E(i. 34U, may be re;;arded as the 
 settled law. 
 
 [This case is also cited in Norton v. Lewis, 
 3 S. C. 25, and the doctrine thereof re- 
 affirmed.] 
 
 Before Johnston, Ch., at Chester, July, 
 ISoli. 
 
 On November L'6, ISliO, Robert Kennedy 
 mortgaged to Painela Ciunning, a lot of land 
 in the village of Chester, to .secure the pay- 
 ment of a money bond ; which mortgage wa.s 
 duly recorded on the second day after its 
 execution. 
 
 Robert Kennedy remained in possession of 
 the mortgaged premises until July 13, 1831, 
 when lie conveyed the same to John Kennedy. 
 John Kennedy conveyed to G. W. Coleman 
 and wife, with warranty, on November 30, 
 1836 ; and they conveyed to the defendant, 
 N. R. Eaves, on January 26, 1846. 
 
 At Fall Term, 1841, I'amela Gunning re- 
 covered judgment, in tlie Court of Common 
 Pleas for Chester, against William Woods, 
 administrator of I\obert Kennedy, for $1920, 
 balance due on the bond. I'ayments were 
 made by the administrator which left .$785 
 due on the judgment May 7, 1847, on which 
 day Pamela (Running assigned the securities 
 for the debt to the plaintiff, William Wright. 
 *82 
 
 *The administrator, William Woods, was 
 dead ; and this bill was filed against N. R. 
 Eaves, who was in possession of the mort- 
 gaged premises, for sale and foreclosure. 
 
 The defendant pleaded the statute of limi- 
 tations ; and his Honor sustained the plea. 
 
 The plaintiff appealed. 
 
 G. W. Williams, for appellant, cited and 
 relied upon Thayer v. Cramer, 1 Mc<'. Ch. 
 3L»o ; Nixon v. Bynum, 1 Bail. 148 ; Act 1791, 
 5 Stat. 170; Thayer v. Davidson, Bail. Eq. 
 412; Smith & Cuttino v. Osliorne, 1 Hill, Ch. 
 342 ; Drayton v. Marshall, Rice Eq. 374. 
 
 Dawkins, contra cited McRaa v. Smith, 
 2 Bay, .339; Cholett v. Hart, 2 Bay, 1.50. 
 
 The opinion of the Court was delivered by 
 
 DUNK IN, Ch. The liill in this case was 
 for foreclosure of a mortg;ige of a lot of land 
 In the village of Chester. The defendant is 
 a purchaser from one who held, through in- 
 termediate conveyances, from the mortgagor, 
 and the defendant and those under whom he 
 claims have been in possession of the land 
 for more than ten years prior to the institu- 
 tion of these proc-eedings. He relied on the 
 
 plea of the statute of limitations. At the 
 circuit the cause was not argued, nor the 
 authorities cited. The plea was sustained. 
 
 The mortgage of the complainant was duly 
 recorded prior to the conveyance in fee on 
 the part of the mortgagor. Under tlie.se cir- 
 cumstances it was Hrst held, in Thayer v. 
 Cramer, 1 McC. Eq. .•'.95. that the plea of the 
 statute was inajiplicable. Afterwards in 
 Sniitli & Cuttino v. Osborne. 1 Hill. Eq. 342. 
 tliat decision was reviewed and the doctrine 
 re-athrmed. Since that timo the authority of 
 Thayer v. Cramer has been rcpeatodly recog- 
 nized, as in Drayton v. .Marshall, Rice E(i. 
 374 |.33 Am. Dec. 84] and may be regarded 
 as the settled law. 
 
 As the cause was heard only on the plea. 
 It Is proper that the defendant should have 
 the opportunity of availing himself of any 
 other defence to which he may consider him- 
 self entitled. 
 
 ♦83 
 
 *It is ordered and decreed, that the decree 
 of tlie Circuit Court, sustaining the plea of 
 the statute of limitations and dismissing the 
 complainant's bill, be reformed — ^tliat the 
 defendant's plea be overruled, and that he 
 have leave to answer within thirty days after 
 notice hereof. 
 
 JOHNSTON. DARGAN and WARDLAW. 
 CC. concurred. 
 Motion granted. 
 
 5 Rich. Eq. 83 
 THOMAS KETCHIN and Wife v. ARCHI- 
 BALD BEATi' and Others. 
 (Columbia. Nov. and Dec. Term, 1852.) 
 
 [WiUs <©=»547.] 
 
 Testator bequeathed certain slaves to hia 
 daughters M. and P: the residue of his estate 
 he gave to his wife for life— the personalty to 
 be divided, after her death, among his three 
 dauj,'hters M., P.. and J., and the lands among 
 all his children (not naminj; them:) he then de- 
 clared, "slioiild any of my daughters above men- 
 tioned, iiereafter marry and die. leaving no issue 
 living at the time of their death, their respt^^- 
 tivc shares shall go to the survivor or sur- 
 vivors, free from any claim or control of their 
 husbands;" and, lastly, he proceeded to say. '"as 
 my daughter N. and son A. are already |)rovid- 
 ed for, 1 leave them $1W to be eiiuallv divided 
 between them:"— //rW, (1) that M.. P".. and J. 
 took, in their legacies, transmissible interests, 
 defeasible u))on the conditions mentioned in tlie 
 will; and (2l that the words "survivor or sur- 
 vivors," referred to the three daughters M., P., 
 and J. only, and not to all the children. 
 
 [Ed. Note.— For other cases, see Wills, Cent. 
 Dig. S UNO; Dec. Dig. ©=.547.1 
 
 [Tri7/.y <©=3.594.1 
 
 Be(lUi'st of slaves to one absolutel.v, anfi 
 "should she hereafter marry and die, leaving no 
 issue living at the time of her death," then 
 over, is defeasible only upon the double contin- 
 gency of her marrying, and dying leaving no 
 issue. 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. § 1:514; Dec. Dig. <g=>.594.] 
 
 ^=3For other cases see same topic and KEY-NUMBER la all Key-Numbered Digests and Indexes 
 5 Rich. Eq.— 3 
 
 33
 
 *83 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 Before Johnston, Ch., at Fairfield, July, 
 1852. 
 
 The questions decided in this case, in the 
 Court of Appeals, will be sufficiently under- 
 stood from the opinion delivered in that 
 Court. 
 
 Buchanan, for appellants. 
 Boylston, contra. 
 
 *The opinion of the Court was delivered by 
 
 DARGAN, Ch. The testator James Beaty, 
 by his last will and testament, in the second 
 clause, gave to his daughter Mary, two ne- 
 groes, Charles and Maria, and to his daughter 
 Peggy, (who is one of the complainants,) he 
 gave a negro named Louisa: the difference 
 between the negroes given to Mary and Peggy, 
 to be paid to Peggy in money ; so as to 
 equalize their* legacies ; and the difference 
 was to be ascertained by appraisers chosen 
 by the executors. 
 
 The residue of his estate, after the payment 
 of debts, he gave to his wife for life ; and 
 after her death, he gave the personal estate 
 to be equally divided between his daughters 
 Mary, Peggy, and Jenny ; and his lands after 
 his wife's death, he gave to be equally divid- 
 ed among all his children. 
 
 Then after* authorizing his executors to 
 sell the house and lot before disposed of, he 
 declares as follows: "Should any of my 
 daughters above mentioned, hereafter marry 
 and die, leaving no issue living at the time of 
 their death, their respective shares shall go to 
 the survivor or survivors, free from any claim 
 or control of their husbands." 
 
 In the concluding clause the testator pro- 
 ceeds to say: "As my daughter Nancy and 
 son Archibald are already provided for, I 
 leave them one hundred dollars to be equally 
 divided between them." It is important to 
 remark, that Nancy and Archibald are then 
 first mentioned by name. They were then 
 married, and were living apart from the tes- 
 tator. His daughters Mary, Peggy and Jenny 
 were single, and were living with him at the 
 date of his will, and of his death. 
 
 The first question that arises is, what es- 
 tate did the testator's daughters, Mary, 
 Peggy and Jenny, take in the legacies given 
 to them? The Chancellor who tried the cause 
 was of the opinion, that each of them took 
 an absolute estate ; which was defeasible 
 only upon the condition that she should die 
 without leaving issue living at the time of her 
 death. Nothing is given to the issue. No 
 mention is made of the issue, except as form- 
 ing a part of the condition upon which the 
 
 *85 
 previous, direct and abso *lute gift was to be 
 defeated. The estate given to them in the 
 second clause was not cut down to a life es- 
 tate by any subsequent provisions ; and was 
 to go over to the survivors only upon the 
 contingency which was provided for in the 
 will. 
 
 34 
 
 The next question is, who are the parties, 
 that, under the description and character of 
 "survivors," are entitled to take, in the event 
 that any of the testator's before-mentioned 
 daughters should marry and die leaving no 
 issue alive at the time of their death? Were 
 the benefits of the survivorship, (which were 
 to accrue upon the contingency expressed), 
 intended to embrace all the testator's chil- 
 dren, or to be restricted to his three daugh- 
 ters Marj% Peggy and Jenny? It is perfectly 
 clear, that it was not intended to embrace 
 his son Archibald Beaty ; because the shares 
 which were to go over in the event express- 
 ed, "were to be free from any claim or con- 
 trol of their husbands ;" a form of expression 
 which would be inapplicable in the case of 
 a bequest to a son. 
 
 Was Nancy Cathcart, the testator's married 
 daughter, intended to be provided for by 
 this limitation in favor of survivoins? The 
 words of the will upon which this question 
 mainly turns are as follows: "Should any 
 of my daughters above mentioned, hereafter 
 marry and die leaving no issue alive at the 
 time of their death, their respective shares 
 shall go to the survivor or survivors, free 
 from any claim or control of their husband^;." 
 The testator was not limiting the share 
 which he had given to Nancy in the division 
 of the real estate. For the expression 
 "should any of my daughters above mention- 
 ed hereafter marry and die," &c., excludes 
 Nancy, who was at that time married. It 
 was only the shares of his single daughtei-s, 
 upon which he was imposing this conditional 
 limitation. This construction derives much 
 additional strength from the fact, that it was 
 the shares of his "daughters above mention- 
 ed," that he waj? affecting to restrict by a con- 
 dition, which might at some day defeat the 
 estates that he had given them. Up to that 
 clause in the will, he had only mentioned by 
 name, his three daughters INIary, Peggy and 
 Jenny. Though he had in a previous clause, 
 
 *86 
 di*rected that his real estate after the death 
 of his wife, should be equally divided among 
 all his children ; which would include Arch- 
 ibald and Nancy; yet it is only in a subse- 
 quent part of the will, that he alludes to 
 them by name. An it was only the shares 
 of his daughters Mary, Peggy and Jenny that 
 he subjected to the condition, the most nat- 
 ural, and, it seems to me, the only proper 
 construction is, that when he spoke of sur- 
 vivors, he meant the survivor or survivors of 
 those three whom he had previously named 
 in the same sentence. 
 
 It IS apparent that he put Archibald and 
 Nancy on the same footing. "As my daugh- 
 ter Nancy, and my son Archibald, are al- 
 ready provided for," says he, "I leave them 
 one hunured dollars to be equally divided be- 
 tween them." He had also given to each of 
 them an equal share of the land with the oth- 
 ers, on the death of his wife. There is no
 
 KETCHIX V. BEATY 
 
 *89 
 
 construction, short of that which would 
 amount to a most perfect distortion of the 
 testator's nieaninj?. which would let in Archi- 
 bald to tile henelits intended to Ite conferred 
 on survivt>rs, in the clause that I am con- 
 siderin;;. And as he and Nancy throujihout, 
 seem to have been put in the same category, 
 it is a stronj: argument ai:ainst her claim. 
 
 This construction is in harmony with what 
 ajtpears to be the scheme of the testator's 
 will. Archibald and Nancy were married, 
 and were living apart from the testator. He 
 bad, before the date of his will, provided for 
 them by advancements. He so declares. His 
 object was to provide for his wife and his 
 three sinjrle daufihters, who were then liv- 
 ing with him: and who were not likely to 
 marry. Accordingly, the principal provisions 
 of the will are in their favor. And again, at 
 the death of his wife, he gave them all the 
 personal estate, which he had giv(Mi to her 
 for life. Except the legacy of ^7)0 to each 
 of them, and a share of the land, which was 
 of no great value, and in which the widow 
 had a life estate, Nancy and Archibald take 
 nothing under the will. They had been pro- 
 vitled for before. The property which they 
 had received from their fatlu'r, and to which 
 they had a perfect title in his life, could not 
 
 *87 
 be subjected to the *conditions of his will In 
 favor of survivors ; which he had imposed 
 on that which he had given to his three un- 
 married daughters. This want of reciprocity 
 was the reason probably, why the testator 
 left them out in the provisions, in favor of 
 survivors. This construction makes the 
 whole will consistent and harmonious. 
 
 The conclusion is, that the defendant Arch- 
 ibald Beaty, and the defendants John S. 
 Cathcart and Nancy J. Cathcart the children 
 of testator's daughter Nancy, (Mrs. Cathcart,) 
 have no estate or interest, vested or con- 
 tingent, in the slave Louisa and her children ; 
 which said slave Louisa was given to the 
 complainant, Mrs. Margaret Ketchiu, under 
 the name of Peggy, by her father's will. And 
 as Jenny died in 1842, and Mary Treaty died 
 in ISol. Mrs. Ketchin still surviving, her es- 
 tate which she derived under her father's 
 will has become indefeasible. For, as the 
 Chancellor has well (observed in the Circuit 
 decree, "an estate to a survivor is upon the 
 condition of survivorship." This disposes of 
 tlie Hrst and second grounds of appeal. 
 
 The third ground of uiipcal has been aban- 
 doned. 
 
 The fourth ground of appeal is "that >hiry 
 Beaty took an ab.solute estate in the negroes 
 Maria and Charles, defeasil)le only on her 
 lioth marrying and dying without issue, and 
 that having failed to marry and leave issue, 
 she had a perfect right to dispu.se of her 
 proi»erty by will or otherwise." 
 
 Mary Beaty died in August is.")!, without 
 issue and unmarried, having disi>osed by her 
 will of the slaves Maria and Charles, which 
 
 she derived under the will of her father 
 James Beaty, in the maimer which has al- 
 ready been stated. The complainants, Thom- 
 as Ketchin and his wife Margaret Ketchin. 
 .set uj) in this bill a claim in behalf of tlie lat- 
 ter, to the negroes Maria and Charles under 
 the lindtations of James Beaty's will. The 
 claim is, that Mary I5eaty having died leav- 
 ing no issue alive at the time of her death, 
 (though she never marri«'d.) the complainant. 
 Mrs. Ketchin. is entitled to the negroes, as 
 the last survivor of the three sisters. Tlie 
 Chancellor in his Circuit decree, gave a con- 
 struction to the will, which sustains this 
 
 *88 
 *claim. ordered that the slaves Maria and 
 Charles be delivered up to Mrs. Ketchin or 
 her trustee, l)y Archibald Beaty the executor 
 of Mary I?eaty, and that the latter do ac- 
 count for their hire, &c. 
 
 In the consideration of this (piestiou, it 
 wiil be necessary once more to advert to the 
 clause of James Beaty's will, under which 
 it arises. The words are, ".should any of my 
 daughters above mentioned, hereafter marry 
 and die leaving no issue alive at the time of 
 their death, their respective shares shall go 
 to the survivor (U- survivors," &c. This clause 
 has been held by the Circuit Court, and by 
 this Court, to have such an operation upon 
 the previous absolute gift of the slaves in 
 (luestion, as to make the estate in .said slaves 
 a fee simple interest, defeasible upon a con- 
 dition which was contingent. And the only 
 question liere is, whether the estate was to 
 go over to the survivor upon the simple con- 
 tingency of the lirst taker's dying and leaving 
 no i.ssue at her death ; or ui»on the double 
 contingency of the first taker's marrying and 
 dying without leaving such issue alive at her 
 death. The Chancellor did not think, that 
 marriage was in the testator's mind, as a 
 part of the condition upon which the estate 
 was to go over. He understood the testator 
 "to refer to marriage as preliminary and 
 mere inducement to siieaking of their issue.'' 
 "I cannot," he says, "construe the will as im- 
 posing marriage as a condition to defeat the 
 survivorship, which appears to be his main 
 object. The words relating to the marriage 
 of his daughters, are to have an effect only 
 so far as they promote some intention on the 
 part of the testator. Now, what purpose of 
 the testator would have been accomplished, 
 by the marriage of any one of the three 
 daughters named'.' None, it appears to me, 
 excei»t so far as the marriage might lead to 
 their having issue. If they had no issue; or 
 died without issue, (whether they married, 
 or did not marry.) then, and then only, was 
 his intention etfectuated, of limiting the prop- 
 erty over." 
 
 Thus the Chancellor reasoned; and he ac- 
 cordingly decreed, that on the death of Mary 
 
 *89 
 Beaty, without issue, although she *never 
 married, the estate in the negroes Maria and 
 
 35
 
 *89 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 Charles, went over to Mrs. Ketchin under 
 the limitation of the will in favor of the sur- 
 vivor. 
 
 This construction is precisely the same, as 
 would have been given to the will, if the 
 testator had simply said: "Should any of 
 my before-mentioned daughters die without 
 issue alive at the time of their death," the 
 property should go over. In other words, it 
 is the same as would have been given, if the 
 testator had omitted to impose marriage as 
 a part of the condition. This is rejecting, 
 as without meaning, a portion of the will; 
 not for being unintelligible, or repugnant, 
 but because we are at a loss to understand 
 his purpose. It is expunging from the will 
 the words "hereafter marry," and reading 
 it, as if no such words were in it. I do not 
 think we are authorized to do this. We are 
 to take the will as we find it ; to give every 
 part some meaning, — and such a meaning 
 as it is fairly capable of receiving, construed 
 by itself, or in connexion with the other 
 parts. If any part be unintelligible or re- 
 pugnant, it may be rejected. But it cannot 
 be said of the words stricken out by the 
 Chancellor's construction, that they are ob- 
 noxious to either of those objections. On 
 the contrary, they have a plain signification, 
 and no repugnancy ; and consequently are 
 entitled to their proper influence in the in- 
 teiiu-etation. The testator may have been 
 capricious, or unreasonable ; but that is not 
 an objection to the effectuation of his in- 
 tentions clearly expressed. 
 
 Where, therefore, the testator has, as in 
 this case, plainly said, in relation to an es- 
 tate which he had previously given to three 
 of his daughters, if any of them should 
 hereafter marry and die leaving no issue 
 alive at their death, their shares respective- 
 ly should go over to the survivors: where 
 he has annexed the double contingency of 
 their marrying and dying without issue, as 
 the condition on which their otherwise ab- 
 solute estates were to be defeated, we are 
 not authorized by any rule of construction, 
 to throw out of view one of the contingen- 
 cies, and t,o make the estate go over to the 
 survivor on the happening of only a part of 
 the condition. 
 
 *90 
 
 *I cannot undertake to say with any cer- 
 tainty, what was the object of the testator 
 in ordaining that the estate should not go 
 over, if his daughters died unmarried, and 
 without issue; and in causing it to go over, 
 in case they married and died without is- 
 sue. As his meaning is plain, it would per- 
 haps be useless to speculate. But I think I 
 can perceive a motive that may have gov- 
 erned him, which does not appear unreason- 
 able. If his daughters died unmarried, and 
 without issue, he was willing for them to 
 have the absolute estate. For without hus- 
 band, or issue, by the force of the natural 
 
 affections, they would bestow it at their 
 death, upon their brothers, and sisters, who 
 were his own children. They would have 
 no nearer objects of affection. If they mar- 
 ried, and had issue, he was willing for them 
 to take the absolute estate on account of 
 their children ; who ought to be provided 
 for, and who, in the natural course of things, 
 would take it from them in succession. But 
 if they married, and died without issue, he 
 was not willing for the husband, (who was 
 a stranger to his blood, and not, in that case, 
 united to his house by any but a severed 
 tie,) to have the estate; but desired it to go 
 back to his own children. Some such views 
 as these, the testator may have had. 
 
 The Court is of the opinion, that the es- 
 tate given by James Beaty to liis three daugh- 
 ters Mary, Peggy and Jenny was not to be 
 defeated, and to go over to the survivors, 
 except upon the double contingency of their 
 marriage and death without leaving issue 
 alive. 
 
 So much of the Circuit decree as orders 
 and directs the defendant, Archibald Beaty, 
 to deliver up the slaves Maria and Charles 
 to the complainants; and to account for 
 their hire is reversed. In all other respects 
 the said Circuit decree is afllrmed, and the 
 appeal dismissed. 
 
 JOHNSTON, DUNKIN and WARDLAW, 
 CC, concurred. 
 Decree modified. 
 
 5 Rich. Eq. *9l 
 
 *WILLIAM WILIE and AMANDA, His Wife 
 v. HENRY R. PRICE. 
 
 (Columbia. Nov. and Dec. Term, 1852.) 
 
 [Contracts <®=>18.] 
 
 Defendant wrote to the agent of plaintiff. 
 Miss J., as follows: "We have had a meeting 
 of all the citizens of the place that are interest- 
 ed in a female school, and all are satisfied with 
 Miss J. and are anxious to employ her, and are 
 resolved to make her this proposition. We will 
 guarantee to her the sum of .$400 for one year," 
 &c., "and if the school should become too great, 
 an assistant will be employed at the expense of 
 the trustees:" plaintiff accepted the invitation 
 and taught the school three months and ten 
 days, when the parties separated by consent: 
 the petition was tiled for discovery of the names 
 of the trustees and of the persons represented 
 in the phrase "we will guarantee," &c., and for 
 payment for the time plaintiff had taught the 
 school: — Held, that defendant was not liable, 
 because (1) there was no contract shewn ; and 
 (2) if there was, plaintiff's remedy was at law. 
 [Ed. Note. — For other cases, see Contracts, 
 Cent. Dig. § 49 ; Dec. Dig. <©=»18.] 
 
 Before Johnston, Ch., at Lancaster, June, 
 1852. 
 
 This case w'ill be sufficiently understood 
 from the opinion delivered in the Court of 
 Appeals. 
 
 36 
 
 ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 WILIE V. PRICE 
 
 *94 
 
 Clinton, for appellants. 
 Dawkius, contra. 
 
 The oiiiuion of the Court was dolivered by 
 
 WAKDLAW, Ch. The plaintiff Amanda, 
 then Miss Johnson, was residiii;; in Cam- 
 den with lier l>rother-in-law Alden. wlien 
 through a letter written i>.v the defendant 
 to Alden, and bearing; date May 15, 1S45, she 
 was invited to take charge of a female school 
 in the villajie of Lancaster, in tiie follow- 
 ing terms: "We have had a meeting of all 
 the citizens of the place that are interested 
 in a female school, and all are perfectly sat- 
 isfied with Miss .Tohiison, as recommended, 
 and are very anxious to employ her as our 
 teacher, and are resolved to make her this 
 proposition. We will guarantee to her the 
 sum of !?400 for one year, and we will pay 
 ber board. She to take charjie of the school, 
 and if the school should become too great in 
 number, an assistant will be employed at 
 the expense of the trustees." Acceptinji this 
 invitation, she went to Lancaster in .June, 
 lS4o, and taught a female school there for 
 one quarter and ten days. Becoming sick, 
 
 *92 
 she retuni*ed to Camden, with the inten- 
 tion of resuming her school on the restora- 
 tion of her health ; but while at Camden 
 she received a letter from defendant, sug- 
 gesting that for various reasons the school 
 could not be revived ; and she did not re- 
 sume, nor offer to resume, her employment as 
 a teacher in Lancaster. The parties sep- 
 arated by consent, and neither now insists 
 upon the entirety of any contract between 
 them for a year. At the rate of ^400 a year, 
 Miss Johnson would be entitled to $110 for 
 the time she taught the school ; and she has 
 received only $;?o. 
 
 By this petition, the plaintiff seek discov- 
 ery from the defendant of the names of the 
 trustees of the school, and of the persons 
 represented in the phrase of the defendant's 
 letter, "we will guarantee &c. ;" alleging 
 that defendant had declined to disclose these 
 names on their previous application to him ; 
 and they pray that he alone, if he wrote the 
 letter without authority from others, or that 
 he, and others, who may be jointly liable 
 with him, when made parties, may be de- 
 creed to make payment for the time the 
 plaintiff Amanda taught school, at the rate 
 of .$400 a year, with interest. 
 
 The defendant, in his answer, insists that 
 this Court has no jurisdiction of the cause; 
 and he makes no discovery beyond the fact 
 that George W. Gill was one of the patrons of 
 the school. 
 
 It appears by the proof, that trustees for 
 the school were never apix)inted. 
 
 The petition was referred to the Commis- 
 sioner of the Court, with reservation of the 
 equities of the parties: and his report as- 
 certains the foregoing facts, and other facts, 
 which are not regarded as material. 
 
 At the last sitting of the Court for Lan- 
 caster, on hearing the report of the Ct>nnnis- 
 sioiH-r, and argument of counsel upon the 
 eipiitii's reserved. Chancellor Johnston or- 
 dered, that the petition be dismissed, and 
 that each party pay his own costs. 
 
 Trom this order of disndssal, an appeal 
 Is taken by the plaintiffs to this Court, on 
 
 ♦93 
 various grounds, which are included in 'the 
 (piestious. whether there was any contract 
 between the parties; and if tliere were a 
 contract, whether this Court has jurisdic- 
 tion of the cause. 
 
 Does the letter of the defendant to a friend 
 and agent of the plaintiff jiropose a delinite 
 contract, which her acceptance consummated 
 into an agrei-nient, by exhibiting the concur- 
 rence of minds of the i)arties of opposite in- 
 terests in the subject. If an individual 
 l)erson were to write a letter to one wishing 
 employuient as a teacher, nearly in the words 
 of the letter in (luestion, saying, I will guar- 
 anty to you $400 a year and board you, if 
 you will teach my daughters: it would not 
 be (piestioned, tliat if the person addressed 
 accepted the offer an<l entered upon the em- 
 ployment, a valid contract was made. So if 
 one were to make a similar offer in behalf of 
 himself and A. and B., which was accepted, 
 when he had no authority from A. and B. 
 to make the offer, he would be singly bound. 
 Fant V. Gadberry. "» Rich. 10. But in ascer- 
 taining the intentions"^ of parties from the 
 language they have employed. Ct)urts should 
 interpret and apply their words in the light 
 of surrounding circumstances, and n<»t insist 
 upon any nice philological construction of 
 their phrases. Qui h(eret in litera. lueret in 
 cortice. The letter of the defendant to Al- 
 den, agent of the plaintiff Amanda, when 
 fairly interpreted, simply narrates the pro- 
 ceedings of a public meeting, and proposes a 
 basis upon which the plaintiff may treat for 
 a contract with the citizens of Lancaster in- 
 terested in a female school. It is not the 
 offer of a contract in behalf of particular 
 persons, to be comi)leted by acceptance on 
 the other side; it is the suggestion of what 
 an irresponsible conununity had resolved to 
 do, as the beginning of a correspondence for 
 a contract. "We will guarantee," &c., by 
 necessary inference, and by grammatical coft- 
 struction, refers to the wrlti-r of the letter 
 and to others in conuutm with him, "interest- 
 ed in a fennile school" at Lancaster: and im- 
 plies that a detinite contract was to be there- 
 after made. We may regret that Miss John- 
 son, from youth and inexi)erience, as suggest- 
 ed in the earnest argument of lier counsel, or 
 from any other cause, was incautious in se- 
 
 •94 
 curing fit ♦compensation for her services, by 
 some contract binding her employers, before 
 she entered upon her duties: and we may 
 even regard the defence as ungracious: but 
 we cannot venture to decide cases upon no- 
 
 87
 
 *94 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 tious of gallantry and taste. We are of opin- 
 ion, that the letter of defendant suggested 
 terms upon which a future contract might be 
 made, but did not offer a definite contract, 
 to be completed by acceptance. 
 
 If ;we are mistaken in this view, the 
 question recurs as to the jurisdiction of 
 this Court. If the letter of the defendant 
 amounts to a guaranty on the part of him- 
 self, or of himself with others as to whom 
 he had no authority to contract, to pay the 
 idaintiff Amanda a specific sum of money for 
 cei'tain services to be performed by her, this 
 is a plain legal demand, to be enforced by 
 the action of assumpsit. The plaintiffs do 
 not seek discovery in aid of a suit at law ; 
 and they have obtained no discovery from 
 the defendant. If the petition be regarded 
 as a suit for discovery merely, the plaintiffs 
 cannot contravene the answer; and as a 
 suit for discovery and relief, the plaintiff's 
 nuist fail, as they have not shewn by the 
 disclosures of the defendant, nor by other 
 proof, any claim to relief peculiar to this 
 jurisdiction. The plaintiffs pray, not for 
 account of complicated, mutual demands, but 
 for payment of a specific sum due to them; 
 and all matters approaching account are 
 raised by the answer and proof by defendant 
 of partial payments on the plaintiffs' claim. 
 Their remedy, if they have any, is as plain 
 and adequate in the Court of law as in this 
 Court. 
 
 It is ordered and decreed, that the appeal 
 be dismissed, and the decree be affirmed. 
 
 JOHNSTON and DUNKIN, CC, concurred. 
 
 DARGAN, Ch. I dissent. The petition is 
 in the nature of a bill for discovery and ac- 
 count. The plea to the jurisdiction is un- 
 founded. And the plaintiff's have made out 
 a case which entitles them to recover. 
 
 Decree aflirmed. 
 
 5 Rich. Eq. *95. 
 
 *WILLIAM A. ROSBJROUGH and Wife v. 
 
 JAMES and ROBERT N. HEMPHILL, 
 
 Ex'rs, et al. 
 
 (Columbia. Nov. and Dec. Term, 1852.) 
 
 [Wills (®=S65.] 
 
 Testator having a wife and six children, 
 three of whom, to wit: J. M., E. B., and J. H. 
 were minors, and intending to '.so order and 
 dispose of his estate, in such manner, as appear- 
 ed to him just and equitable,' devised and be- 
 (luoathed, by the second clause of his will, to his 
 wife .$20,000, seven slaves by name, and other 
 personalty, absolutely, and a tract of land for 
 life, with remainder to his two sons, T. H. and 
 J. H.: by the third clause he gave the 'sixth 
 part' of his 'estate not heretofore devised or 
 willed' to his daughter M. R., with limitations: 
 he made no further disposition of his estate, 
 except that he bequeathed .$1000 to a nephew ; 
 and he directed, that his 'unwilled slaves' should 
 be divided among his 'minor heirs,' the value 
 
 'to be deducted out of their respective dividends' 
 of his estate ; that three of Ins 'legatees,' nam- 
 ing his tliree chihlren B. G., M. R., and T. H., 
 who had received specified amounts out of his 
 estate, should 'discount,' those sums 'out of 
 their respective shares ;' and that his just debts 
 be paid 'previous to a division' of his estate: — 
 Held, that after the widow had received her 
 legacy of ,$20,000, and the slaves and other 
 property devised and bequeathed to her, M. R. 
 was entitled to one-sixth of the residue, and the 
 remaining five-sixths, after payment of the leg- 
 acy of $1000 to the nephew, and the debts of 
 testator, \\ere distributable, as intestate prop- 
 erty, among tlie widow and six children, includ- 
 ing M. R.: — the minor children taking the 'un- 
 willed slaves' as part of tlieir shares, and the 
 three children, named as having been advanced, 
 accounting for their adv^ancements. 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. S 21'J4; Dec. Dig. <©=»S65.] 
 
 [Wills <®==>487.] 
 
 In a Court of construction, evidence aliunde 
 is inadmissible to show, that the testator in- 
 tended to have a certahi provision inserted in 
 the will, and so instrueted the draftsnuin ; that 
 through haste and inadvertence it was omitted, 
 and the testator executed the will supposing the 
 provision to be in it. 
 
 [Ed. Note.— Cited in Whitlock v. Wardlaw, 7 
 Rich. 45S ; Laurens v. Read, 14 Rich. Eq. 209; 
 Rouudtree v. Roundtree, 20 S. C. 405, 2 S. 
 E. 474; Clarke v. Clarke, 40 S. C. 240, 24 
 S. E. 202, 57 Am. St. Rep. 675. 
 
 For other cases, see Wills, Cent. Dig. § 102S; 
 Dec. Dig. (®=3487.J 
 
 Before Johnston, Ch., at Chester, July, 
 1852. 
 
 Johnston, Ch. The bill is filed by Mrs. 
 Rosborough and her husband, for the con- 
 struction of the will of her father, the late 
 William IMoffatt, and for an account of her 
 interests in his estate. 
 
 The testator, a man of large property, con- 
 sisting mostly of stocks, money at interest 
 and other choses, died the 15th day of April, 
 1851, leaving a wife, Margaret, and six chil- 
 dren — Thomas II., Josiah, Elizabeth B., 
 (sometimes called Bethia Elizabeth), Isabella 
 H., Barbara B., wife of Robert C. Grier, and 
 Martha M., wife of Wm. A. Rosborough, all 
 of whom still survive. Of these, Josiah, 
 Elizabeth and Isabella, were, at the date of 
 his will, hereafter to be noticed, and still 
 are, minors. 
 
 On the 14th of March, 1851, the testator 
 *96 
 duly executed his *last will and testament, 
 by the introductory words of which he an- 
 nounced his intention to "so order and dis- 
 pose of my estate, in such manner as, at 
 present, appears to myself just and equi- 
 table." 
 
 By the first clause, he appoints James and 
 Robert N. Hemphill, his executors. 
 
 By the second clause he gives his wife 
 $20,000, seven slaves by name, with their 
 future increase, his live stock, farming uten- 
 sils, wagons, carriages, &c.; his household 
 and kitchen furniture, crop on hand and li- 
 brary. And he also devises to her for life, 
 the plantation of over 700 acres where he 
 
 38 
 
 ^=5>For other cases see same topic and KE i-NUMBER in all Key-Numbered Digests and Indexes
 
 ROSBOKOUGII V. HKMIMIILL 
 
 *98 
 
 resided, with rciiiaiiidcr in fee, to his two 
 soi;s, Tlu)iuas II., and Josiali. 
 
 He tlien proceeds: 
 
 "Tliirdly, the sixth part of uiy estate not 
 heretofore devised or willed, I leave in trust 
 with my executors, for the benefit of my 
 diiu^rhter. Martha Mary Koshorouj;!!, to lie 
 kept out on loan, or judiciously laid out in 
 bank stock, either in tiiis State or North 
 rarolina. The interest thereof after defray- 
 iufj expenses, to he paid over, annually, to 
 her, f(U" her benefit and support. And at lier 
 death, should she leave any issue, children 
 born of her body, tliat should arrive at the 
 aj;e of twenty-one years, then the aforesaid 
 estate, so willed and devised for her l>enelit, 
 shall be le;;ally claimed by them, and paid 
 over to them, by my executors, or their suc- 
 cessors, accordingly. Hut should it be other- 
 wise, and that she die childless, leaving no 
 natural issue, then, the aforesaid estate, so 
 willed and devised for her benefit, .shall re- 
 vert back to my other lejial heirs, to l)e ecjual- 
 ly divided among them." 
 
 The material provisions of the fourth 
 clause are as follows: 
 
 "Fourth. The unwilled slaves belonging to 
 my estate, shall be, as equally as possible 
 divided among my minor heirs," (meaning 
 Josiah. Elizabeth, and Isabella.) "when they 
 become of age." * * * "x fair value to 
 be put on what each receives of said prop- 
 erty, and to Ik? deducted out of their respec- 
 tive dividends of my estate.'" * * * "The 
 unwilled negroes to be kt'pt by mj- widow, 
 *97 
 
 during the minority of my *children. without 
 any accountability, on her part, for their 
 services." 
 
 In the fifth clause, he enjoins it upon his 
 executors to be "careful and judicious about 
 the loaning of the money of my minor chil- 
 dren, to guard as uuich as possible against 
 doubtful loans." 
 
 The material parts of the sixth clause read 
 thus: 
 
 "Sixth. I have further to observe, that 
 three of my legatees have received certain 
 amounts of my estate, viz: Barbara H. (Jrier, 
 property and cash to the amount of $.">000; 
 Martha M. Rosborough. in property, $1L'00; 
 and Thomas Henry Moffatt, in cash, ^.3000: 
 which sums ♦ * * are to be discounted 
 without interest, out of their respective 
 shares of my estate." 
 
 The seventh clause gives a pecuniary leg- 
 acy of .$1000, to a nephew in Indiana. 
 
 The eighth clause directs, that testator's 
 just debts be paid "iirevious to the division 
 of my estate:" and after declaring, that 
 liowever defective, "in form and U-gality," 
 the instrument might he, "it is my will," 
 Itroceeds to declare that, "should any of 
 my legatees, attempt to defeat its plain 
 meaning and design, by throwing legal dith- 
 culties iu the way of its execution, then, 
 
 I leave it in the power of my executors to 
 entirely disinherit them. 
 
 The will closes with the following clause, 
 which it will be important to remember in 
 relation to a i>rior will executed the l.'ith of 
 February. 1S."»0. which is set forth in the 
 answer of some of the defendants. 
 
 "N'inth. I do hercl»y revoke all former 
 wills, and acknowledge in the presence of 
 th«' suliscriliing witnesses, this to be my last 
 will and testament, written on one sheet 
 of paper." 
 
 This will (of the Hth of March. Iv'.l.t was 
 produ'ed by the executors, in the Ordinary's 
 Court f(»r Chester District, admitted to pro- 
 bate, and letters testamentary granted them 
 for its execution. 
 
 The delits. which were inconsiderable, and 
 
 *98 
 
 the pecuniary *legacy of SlfKX). have been 
 
 paid as provided for: and the estate is now 
 
 subject to the interests of testator's family. 
 
 A claim, on behalf of Mrs. Rosborough. is 
 advanced under the third clause, and stated 
 in the bill, to the effect, that of the prop- 
 erty covered by that clau.se, and therein 
 denominated "my estate not hen-tofore de- 
 vised and willed," "one-sixth part is betpieath- 
 e<l to the executors in trust for the benefit 
 of your oratrix ; an«l, after said one-sixth 
 part is set apart, Margaret Moffatt, the wid- 
 ow, is entitled to one-third part of the re- 
 maining five-.sixths, and your oratrix, and 
 each of the -other children of the testator, 
 to an etpial share of the remainder." 
 
 It is very clear, that the property intend- 
 ed in the third clause, by the phrase, "my 
 estate not heretofore devised, or willed," 
 was so much of his estate of every descrip- 
 tion, as had not been betiueathed and tlevi.sed 
 in the preceding, or second clause. Hy tlie 
 word heretofore, was meant heretofore in 
 that will — equivalent to hereinbefore. The 
 testator could not have referred to devi.ses 
 or bequests made iu any prior will or wills, 
 nor have intended to make the residue 
 spoken of iu this third clause, a residue 
 dependent upon what he had disposed of in 
 such fiuMiier wills, and only to result after 
 those dispositions were effectuated ; because 
 in this will he expressly revokes all former 
 wills. It would be absurd to attribute to 
 him an intention to allow devises and be- 
 (juests wiru'h he intentionaly al>rogates, to 
 so operate still on part of his projuMly. as to 
 determine and define the residue upon which 
 the lu'ovisions of this clause of this will are 
 to attach. 
 
 Then, taking up the third clause for con- 
 struction, the question is, what is the ex- 
 tent of its dispositions'^ 
 
 I presume, that the first inqu'ession of any 
 (Uie who had read that clause alone, without 
 looking into the subsetpitMit clauses — and 
 who had never heard of any prior will — 
 would ite. that the testator had given one- 
 sixth of the property referred to in the 
 
 39
 
 *98 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 clause to his daughter, Mrs. Rosborough, in 
 trust, with limitations; and that the other 
 five-sixths were left undisposed of. 
 
 I conceive that, apart from any idea of 
 mistake on the part of the testator, and 
 assuming that the language of this clause 
 
 *99 
 *gives a true expression to his meaning, it 
 would be impossible to give any other in- 
 terpretation to the clause, standing by it- 
 self, than that he had given a sixth of this 
 property to Mrs. Rosboi-ough, and had not 
 given the remainder of it to any body. 
 
 Then, let us resort to the succeeding claus- 
 es, as a context, and see if they furnish any- 
 thing from which a judicial judgment to the 
 contrary of this can be drawn, conformably 
 to sound principles of interpretation. 
 
 In I'esorting to the subsequent clauses 
 as a context, it should not be forgotten 
 that they are the context of tliis will. The 
 same clauses situated in another will, and 
 connected with another text, which does not 
 contain all the words of the text now under 
 construction, may have a very different 
 meaning and application, as was said in the 
 late case of McCall v. McCall, from Darling- 
 ton, 4 Rich. Eq. 447 [57 Am. Dec. 733]— for as 
 the context acts upon the text, so necessarily 
 must text upon the context. 
 
 The 4th clause of this will is not repug- 
 nant to tlie idea that there is a partial in- 
 testacy under the 3rd. The "unwilled ne- 
 groes" are to be allotted to the "minor 
 heirs," by way of satisfying their "divi- 
 dends" of the estate, and their value de- 
 ducted out of said "dividends." Some ob- 
 servations were made respecting the time 
 at which this was to be done. It was said 
 it was to be done at the majority of the 
 minors. But, I do not perceive how that dif- 
 ficulty, if it really exists in the will, proper- 
 ly administered, affects the question now 
 under discussion — which is, whether the 
 shares or "dividends" of the estate to be 
 taken by the minors under the 3rd clause, 
 accrues to them by testacy or intestacy. The 
 difliculty referred to, would be equal, and 
 indeed, precisely the same, whether they 
 take their shares or "dividends" by testa- 
 mentary disposition, or by operation of law 
 — by the will or by intestacy. The objec- 
 tion therefore, determines nothing on the 
 question of testacy or intestacy. I suppose, 
 however, that in the administration of the 
 will — which is not a matter strictly involv- 
 ing doctrine — the aggregate value of the 
 
 *100 
 negroes, at the testator's death, should *be 
 deducted from the aggregate to which all 
 the minors would be entitled under the 3rd 
 clause, (whether testate or intestate) and 
 set apart for the minors, for subdivision 
 among them, with fair compensations, at 
 their majority. This, however, by the way. 
 What I intended to observe is, that the 
 terms "unwilled negroes," "minor heirs," and 
 
 40 
 
 "dividends" are, at least, not repugnant to 
 the notion of an intestacy under the 3rd 
 clause of the will, and unless they are suHi- 
 ciently repugnant, to raise by necessary im- 
 plication a construction of that clause dif- 
 ferent from that which its own terms im- 
 port, they leave it as it was before. It might 
 be contended, indeed, (though I imagine that 
 would be allowing too nmch influence to 
 mere terms,) that the words, to which I 
 have referred, rather serve to fortify than 
 to rebut the idea of intestacy under the 3rd 
 clause: that they import that, notwith- 
 standing all that is contained in the 2nd 
 and 3rd, (which are the only disposing 
 clauses which precede the 4th, where the 
 \Yords occur), there still remained "unwilled" 
 property, to "dividends" of which the minors 
 were entitled as "heirs." 
 
 It was said, however, that the will intend- 
 ed that the minors should receive an equal 
 share of the whole property covered by the 
 third clause; that this was evidenced by the 
 direction for equal partition of the negroes, 
 and for the deduction of their value out of 
 the dividends. If this is so, it necessarily 
 excludes Mrs. Rosborough's claim for more 
 than the one-sixth of that property given to 
 her. But is it so? It is a mistaken as- 
 sumption that the testator (who has merely 
 declared that he wished to dispose according 
 to his notions of justice and equity, not 
 equally,) intended that each child should re- 
 ceive equal benefits under his will. That 
 idea is rebutted by the remainder devised to 
 his two sons, in the second clause, beyond 
 what the other children were to get. And, 
 if their devise is not to be derogated from, 
 in order to bring up the minors to a posi- 
 tion of equality ; if the two sons (one of 
 whom is among the minors, on whose behalf 
 this argument of equality is used,) are en- 
 titled to hold their devises, and still come 
 in for their shares or "dividends" (whatever 
 this may be,) under the third clause — upon 
 
 *101 
 what *principle is it, that Mrs. Rosborough's 
 bequest of one-sixth, expressly given to her 
 in that clause, is to exclude her from par- 
 ticipation in the five-sixths which are not 
 disposed of? The trutn is, there is nothing 
 in the 4th clause, whose provisions we are 
 now examining, which intimates that the 
 minor children are to receive an equal divi- 
 dend of the whole property covered by the 
 3rd clause, (the residuary property as it has 
 been denominated,) but only an equal divi- 
 dend of so much of it as that clause does not 
 dispose of. 
 
 There is nothing, that I can perceive, in 
 the fifth clause, to affect the construction of 
 the third. We proceed to the sixth. 
 
 What is there in this to change the nat- 
 ural interpretation of the third? 
 
 In cases of partial testacy, children who 
 have been advanced are not bound, in the 
 division of the intestate portions of the es-
 
 ROSBOROUGH v. HEMPHILL 
 
 403 
 
 tate, to account for their advanconK'uts, un- 
 less expressly retiuired to do so by the 
 will.(aj The testator lii this will direits that 
 three of his children, (loosely calling them 
 legatees, whkh i>nly two of tliein are,) shall 
 account ; and that their advancements shall 
 be discounted out of their "shares" of his 
 estate. Does this prove that- the shares are 
 testate or intestate? It is a tritlinj,' evidence 
 that they were repirded as intestate, that 
 the account is to be "without interest," 
 which exactly squares with the law of dis- 
 tributions. 
 
 It renaiins to ctmsider the introductory 
 words of the will, by which the testator an- 
 nounces an intention to dispose of his es- 
 tate. Such phrases are a raake-weiKht in 
 doubtful cases. They may remove the im- 
 pression of intestacy, when that is slight, 
 and give an extent to dispositions that are 
 equivocal, so as to carry the whole estate. 
 But I conceive, that there is no word or sen- 
 tence in the third clause, professing to dis- 
 pose of the five-sixths. 
 
 In opposition to all that has been urged 
 from the subsequent clauses, which I have 
 examined, and from the preamble, as a con- 
 text, there is a clause, (the 7th) affording 
 
 ♦102 
 
 very strong grounds *for holding a partial 
 intestacy. That clause contains a i)ecuniarj' 
 legacy. If the third clause disposed of the 
 residue of property left from the second, it 
 ab.sorbed the whole estate, and gave inter- 
 ests in it superior in degree to this legacy. 
 How, then, did the testator contenqdate that 
 this legacy should be paid? It must, on the 
 defendants' construction, have been intended 
 as an enq)ty comi)linient. It was not so, 
 however, if there was a partial intestacy, fur- 
 nishing a fund for its payment. 
 
 I have thus come to the conclusion, upon 
 the construction of this will, apart from all 
 extrinsic circumstances, that the third clause 
 disposes of only one-sixth of the property 
 left untouched by tho second clause, by giv- 
 ing that sixth to Mrs. Koslwrough, ui)on the 
 terms expressed by the testator. The other 
 five-sixths are not disposed of, and she is 
 entitled to participate in them. Nothing but 
 an operative disposition of that part can ex- 
 clude her from her right, as a distributee, to 
 take a share of it. Even if the testator had 
 given her the sixth, "and no more," unless he 
 disposed of the residuary tive-sixths. the law 
 gave her an interest in them.(/() 
 
 I have preferred to consider the will, in the 
 first place, apart from extrinsic circum- 
 stances, because I conceived that in that 
 way, the meaning InhenMit in its terms and 
 language would be more clearly perceived. 
 
 My construction of it I have stated ; and 
 under that construction the tive-sixths are to 
 be considered as Intestate. Of cour.se, as in- 
 
 (o) Snelgrovc v. .Sneifirovc, 4 Des. liT4. 
 (6) Snelgrove v. Suelgrove, 4 Des. J74. 
 
 testate, these five-sixths are the primary fund 
 for the payment i>f debts and exiK-nses. and 
 the pecuniary legacy of ^1,000. The pe- uni- 
 ary legacy of .$:iO.()01), given to the widow by 
 the second clause, stands upon a different 
 footing. It is first to l>e allowed, according 
 to the terms of the will, in order to ascer- 
 tain what is the residuary property, upon 
 which the third clause operates. The in- 
 testate portion, therefore, «if that property is 
 not the fund for Its payment, as In the case 
 of the legacy of $l.(MK), given by the 7th 
 clause. In the distribution of the residue 
 thus left, the widow's third would be set 
 
 *103 
 apart. ♦It is stated that she has released it. 
 The release has not been furnished me, and 
 I cannot know whether it is a general re- 
 lease, or a release operating as an assign- 
 ment to particular children. If the latter, 
 tlieri these particular assignees are to stand 
 in her shoes and take her third. If the re- 
 lease is merely general, then all the chiltlren 
 will take that third ; but as widows have no 
 concern In advancements, this third must be 
 distributed by itself. As to the other two- 
 thirds, the advancements charged in the will 
 against Mrs. (Jrier, Mrs. Kosborough. and 
 Thomas II. Moffatt, must first be brought into 
 the conqnitation. without interest, and then 
 a division made among all the children. 
 
 Such Is the decree of the Court, unless up- 
 on an examination of the extrinsic circum- 
 stances, to which I now proceed, it shall be 
 found that there is any thing calculated to 
 change the InqRirt of the will, as I have con- 
 strued It. 
 
 It appears, that the testator was dissalis- 
 ried with the marriage of .Mrs. Kosbonmgh. 
 <.)n the IHth of February. isr»u. he had drawn 
 up and executed another will, which was in 
 full force when the present will was execut- 
 ed. It was sealed up and deposited by him 
 in his desk. 
 
 In its general features it resembled this 
 will by which It was revoked. It differed, 
 however, from the latter in the disposition 
 of the remainder, engrafted on the devise to 
 the wife. That remainder was given by the 
 former will to Josiah alone, instead of Jo- 
 siah and Thomas II., as it is in the latter ; 
 antl it contained a conditional power to the 
 widow to alienate the land in her life-time, 
 which is omitted in the latter. 
 
 It devised lands In Indiana and York to 
 Thomas II. These were sold by him after 
 its execution. The omi.ssion of these lands 
 in tlu' new will necessarily followed from 
 the sale. Hut the sale did not render a new 
 will necessary, because the old will contained 
 a provision to meet the case ; in which It was 
 declared that. In case of such after aliena- 
 tion, the devisee should take the proceeds in 
 place of the land sold. 
 
 There are some other minor differences be- 
 tween the old and the new will, which 1 deem 
 it unnecessary to notice. 
 
 41
 
 *104 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 *104 
 
 *There was, however, oue capital provi- 
 sion contained in the third clause of the old 
 will, which is omitted in the third (and cor- 
 responding) clause of the new. 
 
 The third clause of the former begins thus: 
 
 "Third. All the residue of my estate, I 
 leave to be equally divided among my six 
 children, viz: Barbara B. Grier, (&c., nam- 
 ing them) subject to such regulations as I 
 shall hereafter distinctly lay down and de- 
 fine, viz: that the distributive share of my 
 estate that would fall to Martha Mary Ros- 
 borough, I leave in trust to my executors, to 
 be kept out on loan," &c., and then proceeds 
 throughout the clause, as in the present will. 
 
 It appears from the testimony of the Rev- 
 erend Laughlin McDonald, a very intelligent 
 witness, that the testator was suddenly taken 
 ill on the night of the 13th of March, 1851, 
 (the night preceding the execution of the last 
 will,) and was obliged to call in his physi- 
 cian. Either that night or the next morn- 
 ing, Mr. McDonald was sent for. When he 
 arrived, the testator informed him, that in 
 consequence of some alterations in his prop- 
 erty, he wished him to draw up a new will 
 for him, corresponding to the existing will, 
 with some alterations. Mr. McDonald dis- 
 trusting his skill in such matters, wished for 
 time, and desired that some legal gentleman 
 should be sent for. But the doctor, taking 
 him aside, told him there was no time to be 
 lost; and he yielded. Upon his signifying 
 his assent, the testator caused the existing 
 will to be brought from his desk, and un- 
 sealed. The room was then cleared, and he 
 proceeded to his task, taking directions from 
 the testator. 
 
 After he had completed the draft, he read 
 it clause by clause to the testator, and then 
 the whole consecutively, and he assented to 
 it, and executed it before the requisite num- 
 ber of witnesses, of whom Mr. McDonald 
 was one. It was then enveloped and sealed 
 up with the prior will, and put back in the 
 desk. 
 
 Some time the same day, and after the 
 will had been put away, the testator ex- 
 pressed dissatisfaction at part of its con- 
 tents, and caused it to be brought out again. 
 Mr. McDonald and the other attesting wit- 
 
 *105 
 nesses were still present. The will *was again 
 either read to the testator, or was read by 
 him ; and he with his own hand, made cer- 
 tain erasures in its first page, leaving its 
 language as it now reads. It was then, as 
 thus altered, subjected anew to the formali- 
 ties of execution and attestation, and was 
 put back with the prior will, as before. 
 
 Testator lingered until the 15th of April, 
 when he died, as before stated. After his 
 death the two wills were found, sealed up 
 together in his desk. 
 
 I allowed testimony as to any thing re- 
 lating to the posture and condition of the 
 
 42 
 
 estate of the testator, and to the s^ate of 
 his family. I am, and always have been sat- 
 isfied, that such testimony is admissible. The 
 Court which is to interpret a will, is aided in 
 the application of its provisions, and some- 
 times in the interpretation of its language, if 
 it is enabled, by testimony, to place itself in 
 the same circle of cinumstances, and to sur- 
 round itself by the same field of subjects, 
 which were known t(» the testator, and by 
 which he was surrounded when he uttered 
 hi.s will. All wills have a tacit reference to 
 the circumstances in which their authors 
 stand when they make them. "In consider- 
 ing questions of this nature," says Mr. Wig- 
 ram, (c) "it must always be remembered, that 
 the words of a testator, like those of any 
 other person, tacitly refer to the circum- 
 stances by which, at the time of expressing 
 himself, he is surrounded. If, therefore, 
 (when the circumstances under which the 
 testator made his will are known) the words 
 of the will do sulHciently express the in- 
 tention ascribed to him, the strict limits of 
 exposition cannot be transgressed, because 
 the Court, in aid of the construction of the 
 will, refers to those extrinsic collateral cir- 
 cumstances, to which it is certain the lan- 
 guage of the will refers. It may be true, 
 that, without such evidence, the precise 
 meaning of the words could not be deter- 
 mined ; but it is still the will which ex- 
 presses and ascertains the intention ascrib- 
 ed to the testator. A page of history, (to 
 use a familiar illustration) may not be intel- 
 ligible till some collateral extrinsic circum- 
 stances are known to the reader. No one, 
 
 *106 
 
 however, would imagine that he was *ac- 
 quiring a knowledge of the writer's mean- 
 ing from any other source than the page 
 he was reading, because, in order to make 
 that page intelligible, he required to be in- 
 formed to what country the writer belong- 
 ed, or to be furnished with a map of the 
 country about which he was reading." As 
 a further illustration of the clearness which 
 the simple presentation of facts imparts to 
 terms previously obscure, I would refer to 
 the Sacred Prophecies. Here Divine Wis- 
 dom, actually looking at the future facts 
 and events, has frequently, for the wisest 
 purposes, foretold and described them in 
 language, uninrelligible until they ai'ise, but 
 which, after they have arisen, become at 
 once clear and uumistakeable ; so that the 
 exact applicability of the terms, themselves, 
 is rendered apparent. 
 
 I therefore, allowed evidence of the de- 
 scription I have stated. 
 
 But, then, it was proposed to prove, that 
 the intention of the testator was, to put a 
 provision, for the equal division of the re- 
 siduary property among all the children, 
 
 (c) Wigram on Wills, Prop. V. PL 76. 3d 
 Lend. Ed.
 
 ROSBOROUGn V. HEMPHILL 
 
 *108 
 
 into tho third clause of this will, as it was , 
 in the prior will; that he so instructed the 
 draftsman ; that it was omitted through 
 liaste and inadvertence: and that the will 
 was executed imder a mistai<en su|>|>usition 
 that the provision was inserted. This proof 
 heing ohjected to, I excluded it. It is possi- 
 ble the witness might have proved these 
 fact.s, if allowed to proceed ; hut i»eing clear- 
 ly of opinion that the evidence was incom- 
 petent, and the press of business requiring 
 the Court to save every moment of its time, 
 I did not take the testimony subject to ex- 
 ception, as is my general practice, but sus- 
 tained the objection to it at the hearing. 
 
 I am .still satistied with n\y decision on 
 this point. If the lu-oof exists, it is incom- 
 petent. 
 
 We have a circuit decision, (in the case 
 of Geer v. Winds, 4 Des. .sr>, I Iielieve.) 
 that parol evidence may be heard in this 
 Court, for the purpose of enai)ling the Court 
 to insert the name of a legatee intended to 
 have been inserted in the will, but omitted 
 by mistake. This is to the very point; and 
 if I had confidence in the decision, or If it 
 were authority, I must yield to it. The 
 
 *107 
 
 *point, however, was but slightly consider- 
 ed in that case; the Court manifestly acted 
 under a strong inclination to oi)viate the 
 peculiar hardships presented ; and the de- 
 cision was, probably, not repugnant to the 
 wishes of all parties, and was. therefore, 
 n(»t appealed from. I do not believe it has 
 ever i)een relied on, or followed in subse- 
 quent cases. It appears to be contrary to 
 safe principle, and to authority. 
 
 When parol testimony is offered in the 
 case of a will, its competency must depend 
 upon the purpose to which it is directed. 
 •'Any evidence is admissible," says the ele- 
 mentarj- writer before referred to by me,(rf) 
 •which, in its nature and effect, simply ex- 
 plains what the testator has written; but 
 no evidence can be admissible, which, in its 
 nature and effect, is apitlicable to the pur- 
 liose of showing merely what ho intended to 
 liave written." "The distinction between evi- 
 dence which is ancillary only to a right un- 
 derstanding of the words to which it is ap- 
 I>lled. and which is, therefore, simply ex- 
 jilanatory of the words themselves, and evi- 
 dence which is api)lied to prove intention 
 itself, as an independent fact, is broad and 
 palpal)le." "Wliere the inciuiry is, what 
 the words of a will express, as distinguished 
 from what the testator meant by the words, 
 evidence of declarations of intention, of in- 
 structions given by tlie testator for prepar- 
 ing his will, or any evidence of a sindlar 
 nature, is obviously inapplicable to the point 
 of inquiry."(c) "The judgment of a Court 
 
 ((/) Wigram on Wills, PI. 9, 10. See also 
 Prop. V. PI. 70. 
 (e) Wigram, I'l. 104. 
 
 in expounding a win must be simply declara- 
 tory of what is in the will.'(/) 
 
 It is conceived, that if the effect or pur- 
 pose of parol evidence is to introduce into a 
 will, matter which it does not i-ontain, so 
 as to ctmstitute it part of tlie will ; to give 
 to the will, in itself considered, oi»erative 
 elements, language or provisions, which 
 were not in it before, then such evitlenc*' is 
 incompetent in a Court whose .^ole function 
 is t<i expound wills, whether it be comi)etent 
 or not. in Courts entrusted with the pro- 
 bate and establishment of testamentary jia- 
 
 ♦108 
 pers. Such evidence is very •different from 
 that which is off.'red for the purpo.se of 
 affording a light, by which wlmt is in the 
 will may be read, understood, and applied; 
 which Is always proi)er. 
 
 Mr. Wigram, in enumerating thirty-six 
 cases, in which it is not competent to Intro 
 duce extrinsic evldence.(f/» includes among 
 them, those, "of tilling up a total blank in 
 a will ;•' "of in.serting a devise omitted by 
 mistake;" "of reconciling conflicting claus- 
 es in a will;" "of construing the will with 
 reference to the Instructions given for iire- 
 parliig it:" "of controlling a technical rule 
 of verbal construction;" "of increasing a 
 legacy;"' "of adding a legacy to a will:" 
 "of adding to. detracting from, or altering the 
 will." "or (generally) of proving intention.* 
 It appears to me, that the tendency of or- 
 dinary nnnds is to overlook or undervalue 
 the danger of allowing parol to add to. to 
 contradict, or to vary written instruments. 
 Even when there is no statute requiring 
 writing, it leads to endless litigation, to un- 
 certainty, to danger of mistake, and to false- 
 hood; and, therefore, is so subversive of 
 ju.stice in general, that experience has com- 
 pelled Courts to di.sallow it. But when we 
 consider that we have statutes relating not 
 only to wills of realty, but to those of per- 
 sonalty also; statutes, (which conceptions 
 of sound policy, founded on profound ob- 
 servation and experience, have induced the 
 legislature to enact,) re<piiring them to be, 
 not only reduced to writing, but executed 
 with solenm formalities, attested by wit- 
 nesses; how can we fail to see that the in- 
 troduction of i>arol evidence, to add to. or 
 detract from wills thus executed, prostrates 
 the policy of the country, and repeals its 
 enactments? How easy to destroy the true 
 will of a party, in his grave, and no long- 
 er able to speak for himself.— a will, which 
 he has deliberately and publicly executed 
 and acknowledged as required by statute — 
 if it be left to witnesses to say. (perhaps 
 laboring under mistake or misconception, 
 themselves.) that his intention was different 
 from his words; that a clau.se which Is In 
 his will is improperly there, or ih.-u a 
 
 (/) Wisram, PI. 120. 
 (J7) Wigram, PI. llil. 
 
 43
 
 *109 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 ♦ 109 
 
 clause or part of a clause, which *is not 
 there, was omitted by mistake, and should 
 be inserted. Tlie witness, in many cases, 
 may speak the truth ; and I am sure, the 
 witness, in this instance, would have done 
 so. But the danger is, that other witnesses 
 may not speak the truth. To cut up fraud 
 and perjury by the roots, the legislature 
 has said, no witness shall speak on such a 
 point. The testator alone shall speak, and 
 speak in his will. 
 
 "It is said, (and correctly)" says the judi- 
 cious writer, whose work I have so often 
 quoted, "that the statute, by requiring a will 
 to. be in writing, precludes a Court of Law 
 from ascribing to a testator, any intention 
 which his written will does not express ; and, 
 in effect, makes the writing the only legiti- 
 mate evidence of the testator's intention. No 
 will is within the statute but that which is 
 in writing; which is as much as to say, that 
 all that is effectual and to the purpose, must 
 be in writing, without the aid of words not 
 written."(7t) "How," he asks in another 
 place,(i) "can it be said, that the will is in 
 writing, when it is admitted that the will 
 must be inoperative unless the intention of 
 the testator be proved aliunde?"' 
 
 I might rest the argument here. But there 
 is still another objection to the evidence pro- 
 posed. Its object is two-fold ;— tirst, to show 
 that provisions were omitted which wei-e in- 
 tended to have been inserted in the will — and 
 so have these provisions allowed and estab- 
 lished as part of the will, — and, (second), to 
 show that the testator executed his will, la- 
 boring under a mistake as to its contents. 
 
 The objection to all this, i;^, that this is not 
 a Court for the establishment of wills or 
 clauses of Avills. 
 
 If the clause which it is proposed to add, 
 can be added, since the statute of 1824, the 
 evidence should have been produced in the 
 probate Court, and the will should have been 
 established with that addition. If, since the 
 statute, written instructions can be estab- 
 lished as testamentary, in the ecclesiastical 
 Court, the instructions should have been in- 
 troduced and proved there. 
 *110 
 
 *If, on the other hand, the testator labored 
 under the mistake imputed to him, the will 
 of 1851, was no will. The evidence of mis- 
 take would have tended to defeat its pro- 
 bate ; and should have been offered to ('. eat 
 it. If defeated, the prior will was not re- 
 voked by it, and should have been establish- 
 ed in its place. 
 
 But the will of 1851, has been admitted 
 to probate by the competent Court; and its 
 judgment, until rescinded, or reversed, is a 
 judgment that the will, in the form in which 
 
 (h) Wigram, PI. 9, citing B'rett v. Rii^deu, 
 Plow. 340; 2 Vern, 625 ; Hobait, 32; Hiscocks 
 V. Hiscocks, infra, PI. 183. 
 
 (i) Wigram, PI. 153. 
 44 
 
 it has been allowed, is the true and only will 
 of the testator.(/") My province is only to 
 expound and execute the provisions of that 
 will. 
 
 I have now closed my judgment in this 
 case. It has been to me a painful duty ; 
 because in upholding what I conceive to be 
 sound and necessary principles, I have con- 
 stantly felt that the justice of this particu- 
 lar case has not been attained. While a 
 sense of official duty, and of the obligations 
 I was under to sustain those principles upon 
 which the general interests of the community 
 depend, compelled me to the results announc- 
 ed in this judgment — since to have sacrificed 
 those principles, would have been to sacrifice 
 the law, — and, in it, the great body of jus- 
 tice which it, and it only, can afford — I could 
 never for a moment, divest myself of the im- 
 pression, that in performing this duty, I was 
 sustaining a claim, which, however legal, 
 was ungracious. It is not, however, as a 
 man that I sit in this Court. I have no right 
 to act upon my impressions, or affections, as 
 a man. What I am to do, I am to do as a 
 Judge — governed not by "inCividual belief, but 
 by judicial persuasion." 
 
 On the whole. I adhere to the decree, 
 which I announced conditionally, in the 
 course of this opinion ; and it is hereby de- 
 creed accordingly. 
 
 Other questions not included in the judg- 
 ment are reserved ; and among them the 
 costs of this suit ; and the question, whether 
 the funds and property to be taken by Mrs. 
 Rosborough should not be also settled, and 
 the terms of the settlement. 
 
 *Perhaps the parties may agree. If not, 
 let it be considered on reference. 
 
 As one of the executors is the Commis- 
 sioner of the Court, the parties may propose 
 an order of reference of the accounts, if de- 
 sired, with other matters proper for inquiry, 
 to some other person as referee. 
 
 The defendants appealed, and now moved 
 this Court to reverse the decree, on the 
 grounds : 
 
 1. Because the Chancellor erred, in refus- 
 ing to receive in evidence a former will of 
 testator, by which the will in controversy 
 was drawn, and the evidence of the scrivener 
 who drew the will, to sbow an omission or 
 mistake in said will. 
 
 2. Because, according to the true construc- 
 tion of said will, the testator died intestate 
 as to no part of his estate, and the complain- 
 ant, Martha M. Rosborough, is entitled to no 
 part of said estate, excepting tlie one-sixth 
 part directed by said will to remain in the 
 hands of the executors as her trustees. 
 
 McAliley, Herndon, for api>ellants. 
 Dawkins, Williams, contra. 
 
 The opinion of the Court was announced by 
 
 (;■) See also the Statute of 1823 (G Stat. 209,) 
 as to the effect of probate as it respects real 
 estate.
 
 FORTUNE V. HAYES 
 
 414 
 
 JOHNSTON, Ch. We have attentively con- 
 sidered this appeal : and it appears to us im- 
 possible, upon any safe principle, to conie 
 to any other conclusion than that attained 
 by the Chancellor. 
 
 It is therefore, ordered, that the decree be 
 affirmed for the reasons given therein : and 
 that the appeal be dismissed. 
 
 DINKIN AND WAUDLAW, CC, concur- 
 red. 
 
 Appeal dismissed. 
 
 5 Rich. Eq. *II2 
 
 •W. FOKTrNK, ct ill.. Adin'is It. MoCRARY 
 v. JOHN A. HAYES and Others. 
 
 (Columbia. Nov. and I)t*r. Term, 1S52.) 
 
 [Limitation of Actions ®=>l."»r).] 
 
 I'romissorv note drawn bv II. iV: C dated 
 Mav, 18L;0, and pavahlo .Tanuarv 1. IS'Jl ; .7. 
 H. & (i. C. comp.i.sed the firm: In 1S20. C,. C.. 
 beinj; insolvent, a.ssiKnfd his interest in the firm 
 for the benefit of his creditors— the assets? re- 
 maining in the hands of J. II.: in December, 
 lS'2'.i, ami January, 1824, payments made by 
 J. H. were endorsed on the note as made by H. 
 & Co.: in October, 182."). J. H. died, and in 
 February, 1829, and March 1830, his adminis- 
 tratrix made payments on the note: On ref- 
 erence before the Commissioner, February, 18:{4, 
 on bill for settlement of tlie partnersiiip ac- 
 counts, the administratrix of J. H. produced a 
 copy of the note with the cretlits endorsed: the 
 Commissioner disallowed the balance due on the 
 note as a charfie against the firm, and the ad- 
 ministratrix excepted to the report, claiming 
 that it should be allowed: a dry balance of over 
 ^1,000 was found to be due, on the partnership 
 accounts, to the assign^-es of G. ('., which was 
 paid by the administratrix of .T. H.: (J. C. died 
 in August, 1830, and 'his bill, filed October, 
 1830, was for payment of the l)alance of the 
 note out of the partnership efTects, or out of 
 the individual estate of either of the partners: — 
 Held, that the note was barred by the statute 
 of limitations. 
 
 [Ed. Note.— For other cases, see Limitation 
 of Actions, Cent. Dig. § 020; Dec. Dig. <3=3 
 155.] 
 
 Before Dargan, Ch. at Barnwell February, 
 1852. 
 
 The circuit decree is as follows : 
 
 Dargan, Ch. James Harley and (Jeorge W. 
 Collins were partners in trade in Barnwell 
 District, under the name and style of James 
 Harley and Company. The business was con- 
 ducted by Harley, at his own residt'uce, and 
 Collins also carried on business as a mer- 
 chant on his separate account, in Savanimh, 
 (•eorgia. It does not appear when the part- 
 nership commenced, but -it was in existence 
 during the year ISL'O, when Harley, in behalf 
 of the firm, executed a iimmissory note, of 
 which the fnllnwing is a copy, to the com- 
 jdainant. Ann McCrary. ailministriitrix of 
 Uobert McCrary : 
 
 "On or before the tirst day of January 
 next, I promise to pay .Vnn McCrary, repre- 
 .sentative of the estate of Rnl»ert McCrary, 
 deceased, or order, the sum of four hniulred 
 
 and sixteen dollars and .io-lOO, for value re- 
 ceived. This 28th day of May. 1820. 
 
 Signed, James Harley & Co." 
 
 Since the date of this note the cumidain- 
 ants have intermarried. James Harley died 
 
 •113 
 2;id of Octolx-r, 1S25. Administration 'of his 
 estate was granted to Jane A. Harley and 
 John A. Hayes, who took pos.session and ad- 
 ministered jointly ft>r a time. Subsequently, 
 Jaiu- \. Harley died, leaving the defendant, 
 John .\. Hayes, sole surviving administrator 
 of James Harley. 
 
 George W. Collins died August, 1.8;{G, and 
 the defendant. John F. I'eyton, is his admin- 
 istrator. On the 7th May, 1S.3G, the complain- 
 ants brought an action of assumpsit at law 
 ui)on the .said note, against George W. Col- 
 lins, as surviving partner of James Harley 
 & Co.. which abated by the death of Collins. 
 This occurred at the time already stated. 
 .*^oon after the complainants commenced their 
 suit in this Court. Their original bill was 
 tiled 24th Octttber, 1830. against the represen- 
 tative of Harley and against the representa- 
 tive of Collins. The amended bill was tiled 
 28th of September. 1S:18. The complainants 
 alleging that the note was a debt of the firm 
 of James Harley & Co., and that a balance Is 
 still uniiaid, claim to have it .satisfied and 
 paid out of the partnership effects, if there be 
 any, or out of the individual estate of either 
 of the said partners. There are no assets of 
 the partneriship, and the estate of Collins Is 
 insolvent. It is not denied that the note was 
 given by Harley. and that it was binding up- 
 on the firm, and If not upon the firm, it is of 
 course upon Harley individually. The only 
 question in the case is, whether the claim up- 
 on the note is barred by the statute of limi- 
 tations, which has been pleaded by tho 
 defendants. A statement of some other facts 
 will here be necessary. In the year l.s20. Col- 
 lins i)ecanie insolvent, iieing indebted to the 
 I'lanters' Bank i>f the State of (Jeorgia, the 
 Bank of tne State of Georgia, and to Alexan- 
 der Smets. He assigned all his interest in 
 the partnership eftects of James IlarU'v «.Nc 
 Co., to his aforesaid creditors. Hurley him- 
 self coiuurring ami joining in the execution 
 of the ileed of assignment. The assignees 
 afterwards filed a bill against Jane A. Har- 
 ley and John A. Hayes, the representatives of 
 James Harley, for an account of the imrt- 
 nership effects of James Harley & Co. The 
 cause came to a hearing. The partnership 
 assets, on the accounts being taken, were 
 found to consist entirely of Harley's indebt- 
 edness to it. A balance was found against 
 
 ♦114 
 him 'of .$2.(!!ll.(>s. The firm owed Collins as 
 a creditor $.")!H>.8S. and as partner .$1.().'>().4(): 
 in the aggregate, .$1,041.28, for which a decree 
 went against Harley's estate, and whicli has 
 since been paid by the administrators of 
 Harley to the assignees of Collins. While 
 
 ®=3For other cases see s>aaie topic and KEY-NL MDEH ia all Key-Numbered Di^eats and ladexts 
 
 45
 
 *114 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 this case was in progress, and the accounts r 
 were before the Commissioner on a reference, j 
 with a view to a final settlement between the j 
 representatives of the two parties, on the 
 14th of January, 1834, the administrators of 
 Harley presented before the Commissioner a 
 copy of the note to Ann McCrary, alleging 
 that this was an outstanding debt of the firm, 
 and claiming to have provision made for its 
 payment, out of the assets of the firm, before 
 a partition thereof. There was some evi- 
 dence that the debt was contracted for Bar- 
 ley's individual benefit. The Commissioner 
 disallowed the claim thus set up by the ad- 
 ministrators of Harley, and reported against 
 it. This report is dated the 16th of January, 
 1837. The administrators of Harley took ex- 
 ceptions to the report, which were argued 
 19th of January, 1837. 
 
 Among other exceptions, they excepted that 
 the Commissioner had not allowed the note 
 to the estate of McCrary as a charge upon the 
 firm in the settlement. These facts were 
 proved by the testimony of Mr. Angus Pat- 
 ter.son, who spoke for the most part from the 
 records of the Court then before him, which 
 were also in evidence. This evidence has 
 an important bearing upon the issue of the 
 statute of limitations, in this way: They 
 establish a most unequivocal acknowledg- 
 ment on the part of the administrators of 
 Harley, as late as the 19th of January, 1837, 
 that the note in question was on an outstand- 
 ing debtj and that the balance was still due. 
 It does more than this. It establishes the 
 authenticity of the credits endorsed upon the 
 original note ; for the copy presented by the 
 administrators of Harley to the Commission- 
 er, in the manner before stated, was a tran- 
 script of the note with all the credits endors- 
 ed. This was an admission that those credits 
 were rightfully upon the note, and removed 
 all grounds for suspicion, if any existed, 
 that those credits were inscribed on th% note 
 
 *115 
 (as has sometimes been done) *for the pur- 
 pose of manufacturing testimony to take the 
 case out of the statute. The evidence relieves 
 the Court of all difliculties on that head. 
 There can be no more emphatic admission of 
 the obligations of a debt than a payment upon 
 it, and causing a credit for the payment to be 
 endorsed as evidence upon the iusti-ument, 
 by which the debt is secured. The payment, 
 if proved, without the endorsement of the 
 receipt, would be sufficient. The endorse- 
 ment of the credit only makes the evidence 
 more explicit, and the facts more unmistake- 
 able. A partial payment of a debt has al- 
 ways been considered as equivalent to a new 
 promise to pay the balance. The evidence in 
 this case to relieve the debt from the bar 
 of the statute, is as follows: The note was 
 due on the 1st of January, 1821. On the ISth 
 of December, 1823, payment by Harley & Co., 
 and endorsed upon the note, $27.50; on the 
 1st of January, 1824, payment by James Har- 
 
 46 
 
 ley & Co.. $50; the 16th of February, 1829, 
 payment by Jane Ann Harley, $100 : the 17th 
 of March, 1830, payment by Jane Ann Harley 
 of $15 ; the 14th of January, 1834, the admin- 
 istrators of Harley, presented the claim as a 
 subsisting debt against the firm of James 
 Harley & Co., as has already been stated. On 
 the 16tL of January, 1837, the administrators 
 took exceptions to the Commissioner's report 
 in the case of the assignees of Collins v. the 
 administrators of Harley, becau.se this debt 
 was not allowed as a subsisting debt of James 
 Harley & Co. 
 
 On the 24th of October, 1836, the original 
 bill in this case was filed. On tue 12th of 
 September, 1838, the amended bill was filed, 
 which has been pending ever since. It will 
 thus be perceived, that there has been a 
 series of acknowledgments of the existence of 
 this debt from an early period after it was 
 due, until, and even after, the suit was in- 
 stituted. Each admission following the one 
 which had preceded it, before the statutory 
 period had run out, with the exception of a 
 single instance. From the second payment 
 by Harley, on the 1st of January, 1824, to the 
 first by his administratrix, on the 16th of 
 February, 1829, more than four years had 
 
 *116 
 expired, even adding the nine months *dur- 
 ing which there was a disability to sue on the 
 part of the complainants. The debt was bar- 
 red, if the administrators of Harley had 
 chosen to avail themselves of that ground 
 for refusing to pay the debt. The law is well 
 settled, that if a debt be barred in the life 
 time of the intestate, the administrator can- 
 not revive it by a promise to pay. Such a 
 promise will be binding neither upon himself 
 nor the estate; and if he pays a debt that 
 is barred, it will be a devastavit to that ex- 
 tent: and he will be personally liable, or 
 in other words, he would not be allowed cred- 
 it, for the payment. But it was decided in 
 the case of Reigne v. Desportes, Dud. 118, 
 that where a debt was not barred in the life 
 time of the testator, but the statutory period 
 had run out after his death, a promise by 
 the executor constituted a good cause of ac- 
 tion, upon which the plaintiff might recover. 
 Though it was necessary, where the promise 
 was made by one who was not a party to the 
 original contract, that the plaintiff should 
 declare upon the promise as a new contract. 
 An administrator may keep a debt of his in- 
 testate's, not barred in his life time, beyond 
 the reach of the statute, by promises from 
 time to time ; and a debt may thus continue 
 in active force, unaffected by the statute, for 
 an indefinite time. If the statutory period 
 expires after the commencement of his ad- 
 ministration, he may avail himself of the plea 
 of the statute, or he may waive it at his own 
 discretion. 
 
 He may pay the debt, and he will be allow- 
 ed credit for it in his accounts, or he may 
 bind the estate by a promise to pay, or what
 
 FORTUNE V. HAYES 
 
 *119 
 
 is equivalent, an Implied promise. It cer- 
 tainly reiiuiies a uiori' explicit promise to 
 pay, or clear recognition of a debt, to revive 
 it after it has been barred, than before; but 
 it would be a mistake to su|>i)ose, that when 
 a debt is barred, that it would require an 
 express promise to i)ay. There may be impli- 
 cations as strong ami emphatic as verbal 
 declarations to that effect. In Young v. Mon- 
 poey, 2 Bail. IISO, it is sai<l, that when the 
 statute has not run out. and there is a still 
 subsisting debt, very slight aiknowledgments 
 will be suHicient to arrest the oiieration of 
 the statute. But to revive a debt already 
 
 *117 
 i)arred, there must be a *promise to pay ex- 
 press or implied. "I do not mean,'' said the 
 Judge who delivered the opinion of the Court, 
 •'to be understood as laying down the rule 
 broadly, that nothing short of a direct, ex- 
 press promise will revive a debt already bar- 
 red; if there be an une(iuivocal admission 
 that it is still due and unpaid, unaccompa- 
 nied by any expression, declaration, or <iualifi- 
 cation, indicative of an intention not to pay, 
 the state of facts on which the law implies 
 a promise is then present, and the party is 
 hound by it." It would be utter nonsense to 
 .say, that a payment, on a note or other de- 
 mand, was not an admission that so much 
 was due. and did not create the presumption 
 of a promise to pay the balance, when unac- 
 companied by any declaration to the con- 
 trury. 
 
 When Jane Ann Ilarley. administratrix of 
 James Ilarley, on the 10th of February, 1S129, 
 paid on the note $100, the note Inking then 
 barred, but having l>ecome so during her ad- 
 ministration, and she having the power to 
 revive it by a new promise, I construe the 
 act as an unequivocal admission that the 
 «lebt was still due and unpaid, and the 
 strongest implication of a promise to pay 
 the balance, the payment bi>ing accompanied 
 by no protest or qualification. 
 
 It is ordered that the plea of the statute 
 of limitations be overruled, and that the 
 complainants do recover the amount of the 
 iialance due upon their debt. It is further 
 ordered, that it be referred to the Commis- 
 sioner to inquire and report as to the amount 
 due upon the said note. 
 
 The defendant, John A. Hayes, apiiealed 
 and moved this Court, to reverse the decree, 
 on the grounds: 
 
 1. Because the said note, set fortli and 
 mentioned in the bill, was barred by the 
 statute of lindtation.s, at the time of the fil- 
 ing of the said bill. 
 
 2. Because on the case math' by the plead- 
 ing and eviih-nce. the defendant. John A. 
 Hayes, is not liable at all. 
 
 .3. Because the said complainant had a 
 lilain and adecpnite remedy at law. 
 *118 
 
 *4. Because the said decree is. in other re- 
 spects, contrary to evidence, law and equity. 
 
 Bellinger, for appellant 
 Bauskett, contra. 
 
 The opinion of the Court was delivered by 
 
 JOHNSTON, Ch. That a common note of 
 hand, given in 1.S20, should be a subsisting 
 and valid demand in 1!S."j1.', thirty-two years 
 after it became due, would be (juite surpris- 
 ing, even if there were no statute to bar it. 
 But tliat a statute, which expressly liars such 
 a demand in four years, has failed to ac- 
 comi)lish its puriwise, in all the time which 
 has elapsed in this case, cannot be credited, 
 without very plenary proof of the fact. Such 
 a thing is a bare legal possibility ; but we 
 have never known an instance of its actual 
 existence. 
 
 The note, in this instance, was given and 
 accepted as the partnei-ship note of Ilarley 
 & Co.. and no circumst;ince is suggested, which 
 renders it prolial>le, that the consideration of 
 it was otlier than the debt of the firm. The 
 rule is, that partnership debts are payable 
 out of the partnershii) a.ssets; and the par- 
 ties are liable, individually, only after these 
 are exhausted. 
 
 The payments made on the note in the life 
 time of Ilarley, were made and credited as 
 partnersliip payments, and if the.se are de- 
 ducted, it appears, that there were joint as- 
 sets left, as late as 18.30, more than sutlicieut 
 to discharge the balance, without resorting 
 to Harky's particular estate. \Vhen I say 
 this, I refer to the fact stated by the Chan- 
 cellor, that a balance was found due to Col- 
 lins, as partner, of .$1,0."»0.40. This means, a 
 balance due him after deducting the partner- 
 ship debt. This dry balance could not be 
 allowed him. until all the joint debts were 
 paid : and, if this debt had Ix'en taken with 
 the account, as it should have been, if then 
 subsisting, the $l,0r>0.40 would have been 
 more than suHicient to satisfy it. The only 
 effect would have been to diminish the dry 
 balance due to Collins. 
 
 What I wish to observe, here, in relation 
 to the statute of limit.itions, is this: — Upon 
 
 ♦119 
 the death of Ilarley, in 1825, the legal ♦obli- 
 gation to pay the note in que.>«tion devolved 
 on Ci>llins, the surviving partner ; and it 
 was certainly barred before August, 18.30, 
 when Collins died. The remedy against the 
 estate of Harley, in conse(|uence of the in- 
 solvency of Collins, (which, however, was no 
 ground in this case — because this demand 
 could have been satisfied, as I have stated, 
 out of the supposed dr>- balance of Collins.) 
 was not a legal, but an equitable, remedy. 
 But, I think, equity will never enforce an 
 equitable demand, arising from and purely 
 dependent upon, and In aid of, a legal de- 
 mand, when that legal demand is barred and 
 extinguished. 
 
 This single consideration is suHicient to 
 dispose of the case. 
 
 But the paj'meuts made by Harley and his 
 
 47
 
 *119 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 administratrix, Jane Harley, are relied on 
 as acknowledgments of the debt as the debt 
 of Harley and bis estate. 
 
 Every payment made by Harley, in his 
 life time, was credited expressly as a pay- 
 ment by the firm. In no way can these pay- 
 ments be regarded as admissions of the debt 
 as Harley's private debt; and the utmost 
 effect they could legitimately have produced, 
 was to revive the debt, as against the firm, 
 (and, consequentially only, as against the 
 partners,) from their dates respectively. The 
 last of these payments made by Harley, was 
 in January, 1S24. The bar, counting from 
 that date, was complete in January, 1S28. 
 
 The payment of $100 made by Jane Har- 
 ley, administratrix, the 16th of February, 
 1829, is we think no clear admission of the 
 balance then remaining due on the note, as 
 a balance legally due by her intestate. In 
 the first place, she was in possession of the 
 partnership assets, which it appears were, 
 on the assignment of Collins, left in her in- 
 testate's hands. The note presented to her, 
 and on which she made the payment, was not 
 the individual note of her intestate, but the 
 note of the firm, whose assets she held, and 
 on which she acted. The payment made by 
 her, upon such a note, if it admitted a bal- 
 ance due, is most naturally construed as an 
 admission that that balance was due by the 
 firm — and not by her intestate. She might 
 very safely admit such a balance due by the 
 
 *120 
 firm, knowing the sufficiency *of its assets, 
 without admitting, in the slightest degree, 
 that there either was, or e\er would arise, 
 any obligation, on the part of her intestate's 
 estate, to pay dt. The bar, dating from this 
 payment, accrued to the firm (and, if neces- 
 sary, to the estate of Harley,) in 1834. 
 
 But we very much question, upon the au- 
 thority of a current of decisions made by the 
 law Courts, and binding upon us,(a) wheth- 
 er the payment was, under the circumstanc- 
 es, a clear admission of a balance due ; or 
 whether it was competent for the adminis- 
 tratrix, after the demand was barred before 
 the estate came to her hands, to bind the es- 
 tate by any admissions upon the subject. 
 If she became bound by the supposed admis- 
 sion — it must be by its being construed into 
 a jirouiise, — which under the circumstances 
 stated, would be binding only on herself, 
 personally, and not on the estate, or her suc- 
 cessor, now before the Court. The presenta- 
 tion of the demand in 18.36, on the reference 
 of the accounts of the firm, is no clear ad- 
 mission that the debt was still due, much 
 less that it was due by Harley's estate. It 
 was not presented by the holder of the note. 
 We may infer that the note was not in the 
 
 hands of Mrs. Harley, but was in the hands 
 of Fortune : a copy of it, only, being pre- 
 sented. 
 
 It is most natural to supi>ose, that the 
 copy, with the credits endorsed, was submit- 
 ted with the \ lew of getting credit, for the 
 payments made on it, in the copartnership 
 accounts: and so far as credit was claimed 
 for the balance due on the note, such a claim 
 might well be made, either with the pure 
 intention of aiding Fortune, or from a cau- 
 tious respect to any danger the estate of 
 Harley might be in from his demand — with- 
 out admitting that his estate was at all lia- 
 ble. The circumstances are too equivocal to 
 infer from them an explicit admission of 
 indebtedness, or a promise to pay. 
 
 The rejection of the note, on that occasion, 
 was a clear decision that no demand then 
 
 *121 
 existed against the firm : and *consequently 
 discharged Harley's estate from all equitable 
 liability for such demand. 
 
 On the whole, we are of opinion, that the 
 statute of limitations should have been sus- 
 tained, and the bill dismissed ; and it is so 
 ordered. 
 
 DUNK IN and WARDLAW, CO., concur- 
 red. 
 
 Bill dismissed. 
 
 (a) See Reigne v. Desportes, Dud. 118 ; 
 Young V. Monpoey, 2 Bail. 278; Lomax v. Spier- 
 in, Dud. 36.5; Horlbeck v. Hunt, 1 McM. 197; 
 Lawton v. Bowman, 2 Strob. 190; Gowdy v. 
 Smith & Gillam, 6 Rich. 28. 
 
 5 Rich. Eq. 121 
 
 THOMAS G. DUKE v. JOHN A. FULMER 
 
 and Others, Adm'rs. 
 
 (Columbia. Nov. and Dec. Term, 1852.) 
 
 [Limitnlion of Actions <©=>28.] 
 
 One with whom plaintiff's wife lived in con- 
 oubinaso, received considerable sums of money 
 belonging to the wife, and purchased property 
 in his own name:— //cW, that plaintiff's claim 
 to the money or the property was barred by the 
 statute of limitations — his bill having been filed 
 more than eight years after the payment of 
 the money. 
 
 [Ed. Note.— For other cases, see Limitation of 
 Actions, Cent. Dig. § 134; Dec. Dig. <©=>28.] 
 
 [Divorce <©=>327 ; Marriage <®=>57.] 
 
 A marriage contracted in South-Carolina 1^ 
 indissoluble, either by the consent of the parties, 
 or by the judgment or statute of any foreign 
 tribunal or legislature. Per Wardlaw, Ch. 
 
 [Ed. Note.— Cited in Davis v. Whitlock, 90 
 S. C. 244, 73 S. E. 171, Ann. Cas. 1913D, 538. 
 
 For other cases, see Divorce, Cent. Dig. § 
 831; Dec. Dig. <S=>327; Marriage, Cent. Dig. 
 § 111; Dec. Dig. <©=>57.] 
 
 [This case is also cited in SoUee v. Croft, 7 
 Rich. Eq. 40, without specific application.] 
 
 Before Wardlaw% Ch., at Lexington, June, 
 1852. 
 The Circuit decree is as follows: 
 Wardlaw, Ch. In this suit the plaintiff, as 
 husband of the late Louisa Duke, calls upon 
 the defendants to account for certain moneys 
 received by their intestate in behalf of said 
 Louisa, with whom the intestate long lived 
 in concubinage. 
 
 48 
 
 C=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inde.xes
 
 DUKE V. FULMER 
 
 ►1-24 
 
 About Juno 23, ISliO, the plaintiff married, 
 in Fairfield District, in this State, I.oui.'^a 
 Webb, ille!,'itiniate dau;.'liti'r of Murnin;,' Kick- 
 son. After a short residence in Lane-aster, tlie 
 pair removed, in February, 1S21, to Jones 
 county, in the State of (ieor^ia. In March, 
 1S22, the wife eloped with one Samuel (JckI- 
 by, and the husband never saw her after- 
 
 *122 
 wards; nor, so far 'as appears in testimony, 
 made any impiries about her. On Au>;ust 12, 
 1822, he instituted proceedings for divorce, 
 in the Superi<u- Court of Jones etainty, on 
 account of the adultery of his wife. And, 
 after a delay coiise(Hient, partly, on the ne- 
 cessity of making her a party by publica- 
 tion, at October term, 1S24. obtained a ver- 
 dict from a special jiiry, sustaining his al- 
 legations. Afterwards, at his instance, the 
 Legislature of Georgia, by an Act, as.sented 
 to by Governor Troup, November 21», lS2.j, 
 enacted: "That the matriuionial contract, or 
 civil contract of nuirriage, made between 
 Thomas G. Duke and Louisa, his wife, late 
 L<.iuisa Webb, shall be completely annulkHl, 
 set aside, and dissolved, as fully and effec- 
 tually as if no such contract had ever here- 
 tofore been made and entered into between 
 them; and that the .said Thomas G. Duke 
 and Louisa Duke, late Louisa Webb, shall in 
 future be held as separate and distinct per- 
 sons, altogether unconnected by any mystical 
 union or civil contract whatever, at any time 
 heretofore made or entered into between 
 them." Soon after this divorce the plaintiff 
 removed to Alal)ama; and he is now living 
 in Chambers county, of that State, where he 
 is the repured husband of another woman, 
 and the father of three children ; the eldest 
 a daughter of about fourteen years of age. 
 He made a visit to South-Carolimi, in 1S40, 
 and tiled this bill. June !>, l.S4!», within eight 
 months after the death of his wife Louisa. 
 
 Louisa Duke within a few years after her 
 elopement is found to be again residing with 
 her mother. Before 1S.'>0 she and the intes- 
 tate W^illiam Fulmer, lived together in a 
 state of concubinage ; and in 1835, the form 
 of marriage passed between them. Slie died 
 in October, 1S4S, and he died in December, 
 1848, both intestate, and without children, le- 
 gitimate or natural. Under an Act of 1826 
 (6 Stat., 284,) lier liusband was her sole 
 distributee. At the time of the filing of this 
 bill, A. G. Summer had applied for letters of 
 administration on her estate, and having sub- 
 sequently obtained a grant of them, he has 
 tiled an answer denying the possession of as- 
 sets, and taking part, not imjiroperly, with 
 the plaintiff. William Fulmer left as his dis- 
 
 *123 
 *tributees two brothers and a sister, viz: 
 Abram, John A., and Irllizabeth, wife of Jos- 
 eph Counts ; and John A. Fulmer au<l Joseph 
 Counts have administered upon his estate. 
 
 The circumstances from which this claim 
 of the plaintiff arises must he further stated. 
 5 Rich. Eq.— 4 
 
 James Webb, of Fairfield, who died in Janu- 
 ary, 1S2(I, made his will Deceml>er 10, ism. 
 containing the following Innpiest: "I give 
 and bequeath to my tlaughter. Morning Dick- 
 son, and the heirs of her body, the profits 
 and earnings of the following property, viz: 
 'seven negroes." I also will that the whole 
 of the projierty mentioned, to my said daugh- 
 ter Morning, lie, or remain, in the hands of 
 my executors, for the seiiarate and .sole use 
 of my said daughter Morning and her chil- 
 dren, during her natural life; and her pres- 
 ent husband, John Dickson, is forever ex- 
 cluded from any claim or interest in the 
 same; and, after the decease of my said 
 daughter Morning, I will the said negroes 
 and tlieir increase to be npially divided be- 
 tween her four children, viz: 'Louisa Webi>. 
 l^azzil McKnight and William W. .McKnight. 
 and Henry Dickson.'" Aimer I'ant and .lon- 
 athan Davis were the executors of this will, 
 the former managing the estate. 
 
 In 18'20, under proceedings instituted in 
 this Court by r>uke and wife, a decree was 
 made, that one-fifth of the hire of said slaves 
 be paid to said Louisa. In 1S2!>. William W. 
 McKnight died an infant and intestate. 
 
 On February 22. IS-'JO. an agreement, under 
 seal, was made by Morning Dickson. Louisa 
 Duke, Bazzil McKnight and Henry Dickson, 
 that the first should surrender to the other 
 three her life estate, under said luvpiest. and 
 that they shpuhl secure to her by bomls. with 
 sureties, the payment of .^oHO, annually, dur- 
 ing her life. On March 1, I8.".(j, the said 
 Morning Dickson, by deed reciting that she 
 held the bonds of William Fulmer. David 
 Aiken, and Bazzil McKnight. to si>cure the 
 payment of said annuity, surrendered her 
 life estate in said slaves to said Louisa. Baz- 
 zil and Henry. 
 
 On April 8, IS-'in, Bazzil McKnight and 
 Henry Dickson filed tht>lr bill in the Court of 
 
 ♦124 
 Equity for Fairfield, against the execu*tors 
 of James Webb, for shares of the income 
 from said slaves ; and afterwards, on June 23, 
 18.'>ti, said plaintiffs tiled an amendtnl bill, 
 suggestiug the surrender by Morning Dickson 
 of her life estate in said slaves, and praying 
 partition of the slaves between themselves 
 and Louisa Duke, and process to answer, In 
 addition to the executors, against Duke and 
 wife and Morning DU'kson. That Duke was 
 made a party, according to the procedure of 
 the Court, tloes not appear, unless It may be 
 Inferred from the dei)osltion of Conunlssloner 
 McCants. that he was made a party: which, 
 I suppose, means (»nly that he was named as 
 a party on the record. At July sitting. 1836, 
 the Court decreed the partition prayed for, 
 and for that purpose ordered a sale of the 
 negroes by the Commissioner. The negroes 
 were accordingly sold on January 2. 1S37, 
 for the aggregate sum of $11.4ir». At July 
 sitting, 1837, the Court further ordered, by 
 consent, on motion of plaintiff's' Solicitor, 
 
 49
 
 *124 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 "that David Aiken be appointed trustee for 
 Louisa Dulie, a party interested in the funds 
 arising from the sale of personal estate in 
 this case, and that the Commissioner of this 
 Court pay over to him her distributee share 
 of the funds as they come into his hands." 
 
 Under this last order, David Aiken receiv- 
 ed at various times considerable sums of 
 money from the Commissioner; and paid over 
 to Louisa Duke, sometimes on her own re- 
 ceipts, generally on the receipts of William 
 Fulmer and herself, and sometimes on the 
 receipts of Fulmer alone, the aggregate sum 
 of $3,588.17; if some of these receipts be not 
 re-duplicated, which Is not meant to be de- 
 termined, the dates of these receipts range 
 from July 12, 1837, to April 30, 1841. Aiken, 
 who is not pursued by the plaintiff as a 
 party, and is made a witness by him, deposed 
 that all the payments were made to Louisa, 
 personally, or to her written order, and that 
 she approved of the payments to Fulmer, 
 and of every payment. 
 
 I conclude from the evidence that William 
 Fulmer did employ some of the money paid 
 by Aiken in the purchase of property — after- 
 wards sold as Fulmer's estate by his heirs 
 
 *125 
 and representa*tives — the Counts tract of 
 land, the slaves Jerry, Isaac, Anny, Amy, 
 (of whom Isaac and Amy are dead. Amy be- 
 ing offspring,) a barouche and a horse. Ful- 
 mer was a tailor, and industrious and frugal: 
 and by his trade and by farming made prof- 
 its — partly expended in the maintenance of 
 Louisa, especially for the last three years of 
 her life, during which she suffered much 
 from disease, and was expensively attended 
 by physicians. Louisa herself was generally 
 industrious and frugal, but, in certain moods, 
 was extravagant and wasteful, even destruc- 
 tive of property. Morning Dickson died in 
 February, 1848. 
 
 In this state of facts, the plaintiff insists 
 that he is entitled to recover from the admin- 
 istrators of William Fulmer, all the moneys 
 received from David Aiken, with interest 
 from the times of the receipt; and to follow 
 up the property in which the moneys were 
 invested. The defendants deny his rights as 
 husband, but mainly rely upon the statute of 
 limitations. 
 
 The first point in the case is, whether 
 plaintiff remained the husband of Louisa 
 (women have no surnames) until her death 
 in 1848, notwithstanding he and she were 
 professedly divorced by the Act of the State 
 of Georgia, and both afterwards in form as- 
 sumed conjvigal relations to new consorts. 
 In my judgment, a marriage contracted in 
 South-Carolina is indissoluble, either by the 
 consent of the parties, or by the judgment or 
 statute of any foreign tribunal or legislature. 
 I am not aware that there has ever been in 
 this State an authoritative decision, that a 
 foreign divorce, regularly obtained, will not 
 dissolve a marriage contract here; but the 
 50 
 
 negative dicta and indications are numerous. 
 In Boyce v. Owens, 1 Hill, 10, it was said: 
 "The marriage contract in this State is re- 
 garded as indissoluble by any human means. 
 Nothing short of the actual or presumed 
 death of one of the parties, can have the 
 effect of discharging its obligations and legal 
 effect." The intimation in this dictum, that 
 the presumption of the death of one of the 
 consorts, from absence for seven years, dur- 
 ing which he is not heard from, will excuse 
 the other consort from the obligations of the 
 marriage contract, must be confined, as 
 
 *126 
 
 doubtless it was intended to be *confined, to 
 exemption from charges of bigamy, or other 
 crime, and unintentional violations of the 
 marriage vows. If the absent consort return, 
 or be proved otherwise to be living at the 
 time of the second marriage, the second mar- 
 riage is void, and the issue spurious. 1 Hag. 
 Cons. R. 135 n.; 3 Man. & Ry., 329 n.; Mc- 
 Carty v. McCarty, 2 Strob. 6 [47 Am. Dec. 
 585]. In the last case it was held, that pre- 
 sumption of divorce could not arise from any 
 lapse of time. See 1 Des. R., Intro. 54 ; 2 
 Des. 646, n.: Caro. L. J. 377. The common 
 law, as declared by the Judges of England, 
 is clear against the recognition of foreign di- 
 vorces as dissolving marriages contracted in 
 England. Lolley's case, 1 Russ. & Ry. Cases, 
 236; Warrender v. Warrender, 9 Bligh, 89; 
 Tovey v. Lindsay, 1 Dow, 117; Story Confl, 
 L. § 205. In my judgment, Thomas G. Duke 
 was the lawful husband of Louisa during her 
 whole life. 
 
 I am of opinion, even more stongly than 
 on the latter point, that the plaintiff is bar- 
 red from his claim by the statute of limita- 
 tions. His claim, in all its substance and 
 effect is, that the intestate, William Fulmer, 
 received from the plaintiff's wife money for 
 the plaintiff's use. It is a mere legal demand 
 for money had and received — would be bar- 
 red in the Court of Law if demanded in as- 
 sumpsit, by the statute of limitations; and 
 is barred in this Court, in obedience or an- 
 alogy to the statute, by the lapse of more 
 than eight years after the receipt of the 
 money before bill filed. Suppose plaintiff 
 had been living with his wife, and she had 
 given away his money to her leman — and 
 surely the case he makes is not so strong 
 as the one supposed — he would still be liable 
 to the operation of the statute, for no excep- 
 tion in favor of an injured husband in such 
 case is made by the legislature. The notion 
 that the leman is a trustee for the husband, 
 in such circumstances, and not entitled in 
 Equity to the protection of the statute, is 
 more sublimated morality than has ever been 
 recognized by human tribunals. It makes 
 no difference in what estate the adulterer in- 
 vests his unhallowed gains. He is at most 
 an implied trustee, within the protection of 
 the statute, and not an express and technical
 
 HEAD V. IIALFORD 
 
 »i:j 
 
 •127 
 
 trustee, who is ♦inhibited by the principles 
 and practice of this Court from availinj? him- 
 self of the bar of the statute. 
 
 The argument for the plaintiff, that the 
 statute does not begin to run against him be- 
 fore the death of the life tenant, Moruiug 
 Dickson, in 1S48, does not impress me. The 
 plaintiff seeks to recover money received in 
 virtue of the surrender of the life estate ; and 
 Ills right and the conse<|Ui'nt bar proceed 
 from tlie date of the surrender. 
 
 It is ordered and decreed, that the bill be 
 dismissed. 
 
 The plaintiff appealed, and moved this 
 Court to reverse the decree, upon the 
 grounds: 
 
 1. Because his Honor erred, in decreeing 
 that the claim of the plaintiff was barred by 
 the statute of limitations, more than seven 
 years having elapsed from the time that Wil- 
 liam Fulmer received the proceeds of prop- 
 erty sold for partition, though the plaintiff 
 was not made a party, according to the prac- 
 tice of this Court, in the proceedings under 
 which the life estate of Morniiig Dickson was 
 sold. 
 
 2. Because, according to the decree of his 
 Honor, the plaintiff was the legal husband of 
 Louisa; and William Fulmer had no right, 
 legal or equitable, to receive the proj)erty of 
 the life estate — the same being the property 
 of the plaintiff — and, by receiving it, he be- 
 came a trustee for the plaintiff. 
 
 3. Because the property bequeathed to 
 Morning Dickson did not vest, acconling to 
 the terms of James Webb's will, in the chil- 
 dren of Morning until her death, and was not 
 subject to division until after the death of 
 the tenant for life. 
 
 4. Because the plaintiff had a right to pur- 
 sue the property, or the proceeds of the sale 
 thereof, into the hands of those in who.se 
 possession he could trace the same. 
 
 5. Because the decree is contrary to the 
 principles of Eciuity and the facts of the case. 
 
 H. Summer, for appellant. 
 
 Boozer, contra. 
 
 *128 
 
 *PER CURIAM. We concur in the decree 
 of the Chancellor ; and it is ordered that the 
 same be affirmed, and the appeal dismissed. 
 
 JOHNSTON, DUNKIN, and DARGAN, CC, 
 concurring. 
 
 Decree atlirmed. 
 
 5 Rich. Eq. 128 
 
 MARGARET IIKAD and Others v. WM. R, 
 HALFUKD and Others. 
 
 (Columbia. Nov. and Dec. Term, 1S52.) 
 
 [Husband and Wife <5=3;>0.1 
 
 Where a jilaiiitifr in a judgment, confosscdf 
 without cousitli'iiition, takes a colorable bill of 
 
 sale of the defendant's propertv, on a serret 
 trust to h(jld it for the benefit "uf ilefenchint's 
 wife and children, and afterwards carrits the 
 trust into effect b.v making a dt-ed of the prop- 
 erty to trustei-s for the use of the wife and 
 children— such deed is a |»ost-nuptinl settlement, 
 and void, as against subsequent creditors, if 
 not duly registered. 
 
 [Ed. Note.— Cited in Wade v. Fisher, 9 Rich. 
 E<i. nc'j. 
 
 For other cases, see Husband and Wife, Cent. 
 Dig. § 17<i; Deo. Dig. ©=>.■><».] 
 
 [Evidence <S=>2.'50.1 
 
 Wiiere one maiies a conveyance of prnperty 
 to trustees for the use of others, iiis decjjirations 
 made before the conveyance was executed, and 
 while lie held the title, are admissilile, as against 
 the cestui (lue trusts, to show that the transac- 
 tion was fraudulent. 
 
 [Ed. Note.— Cited in Means v. Fea.ster. 4 S. 
 C. 25({. 
 
 For other cases, see Evidence, Cent Dig. S 
 S3G; Dec. Dig. <©=2.{0.] 
 
 Before Dargan, Ch., at Barnwell. Febru- 
 ary, 1.S52. 
 
 Dargan, Ch. The complainants (who are 
 the wife and children of one New[)ort Head) 
 charge in their bill, that on the 2Sth of Jan- 
 uary, 1.S.'}.3, Henry Hartzog (who was the 
 brother-indaw of Newport Head's wife.) exe- 
 cuted and delivered to .^anuiel Reed. Jr.. and 
 David Hair, a certain deed, by which the 
 said Hartzog conveyed to the said Reed and 
 Hair, two negro slaves, Albert and Fanny, 
 in trust, for the exclusive use of Margaret 
 Head, (wife of Newinn't Head.) during lu-r life, 
 and after her death, to the use of such child or 
 children, grandchild or grandchildren, as she 
 might leave alive at the time of her death. 
 This deed was proved 2sth January, ISJo, 
 
 ♦129 
 and recorded in the ollice ♦of the Register of 
 Mesne Conveyances for Barnwell District, on 
 the 4th February, 1S33. The complainants 
 further allege, that .some time after the exe- 
 cution of the deed, the slave, Albert, was 
 alxlucted from their possession by some per- 
 son or persons to them uidcnown. That the 
 increase of Fanny is as folU)ws: Jesse. Rose, 
 Lewis and Silvy. Tluit the said Sanmel 
 Reed and David Hair, named as trustees, 
 duly signed the deed, and accepted the trusr. 
 That immediately after the execution there- 
 of, the negroes went into the possession of 
 of the complainant, Margaret Head, ^vife of 
 Newport Head,) wlio had a life estate in the 
 said negroes. That the said Samuel Reed 
 and David Hair are lx)th dead, and that no 
 other person has been ai)pointed as trustee 
 in their stead. 
 
 The complainants further charge, that one 
 John D. Baxley, having obtained a judgment, 
 and issued an execution tlien'on. against the 
 said Newi)ort Head, has lately directed Wil- 
 liam R. Halford, the SherilT of Barnwell 
 District, to levy on the said slave, Jesse, and 
 that the said William R. Halford has accord- 
 ingly levied upon, and threatened to sell 
 the said slave, under and by virtue of the 
 
 >For other cases see same topic and K£Y-NUMUEK Ln aU Kuy-Numbered Digests and Indexes 
 
 61
 
 ^129 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 aforesaid execution. Tliey pray an injunc- 
 tion, subpoena, &c. Newport Head is a de- 
 fendant, charged as a confederate of Baxley 
 and Halford. Tlie defendants, Baxley and 
 Halford, in tlieir joint answer, admit the 
 levy upon the slave, Jesse, under the execu- 
 tion. They rest their defence principally 
 upon the alleged fact, that if the deed of 
 trust set forth in the complainants" bill was 
 ever executed, the negroes therein conveyed, 
 were not the property of Henry Hartzog, but 
 of the said Newport Head. Tliat the said 
 Newport Head being deeply indebted at the 
 time, in fraud of his creditors settled the 
 said negroes upon his wife and children, 
 through the instrumentality of Henry Hart- 
 zog, who never had a title, and if he had, 
 the title was given to him for this fraudulent 
 purpose, and that the said deed was, there- 
 fore, null and void. They further contend, 
 that if they should fail to show that the 
 said deed was fraudulent and void — the ne- 
 groes being the property of Newport Head — 
 
 *130 
 the deed of Hartzog — executed for the *same, 
 with the concurrence of Newport Head, was 
 nothing but a deed of post-nuptial settlement 
 by Head, for his wife and children, and is 
 void, for the want of registry in the proper 
 office. The foregoing are the positions which 
 the parties respectively occupy on the record. 
 The negroes were, indisputably, at one time, 
 the property of Newport Head. On the 1st 
 October, 1832, Head executed and delivered 
 to Hartzog, a bill of sale for the negroes, 
 Albert, about four years of age, and Fanny, 
 about fourteen years of age and some other 
 property of inconsiderable value. The con- 
 sideration expressed is $700. The bill of 
 sale also conveys, for the same consideration, 
 a sorrel mare, and household and kitchen 
 furniture. On the same day, there was a re- 
 ceipt from Head to Hartzog for $1S7.43, be- 
 ing the balance in full for two negroes, Al- 
 bert and Fanny, household and kitchen fur- 
 niture, and the sorrel mare. Hartzog had 
 a judgment and execution against Head in 
 the Court of Common Pleas for Barnwell 
 District. Judgment was confessed on 6th 
 February, 1832, for !f524.63, with interest on 
 $500, from 7th February, 1832: fi. fa. for 
 this sum, together with costs, was entei-ed 
 8th February. 1832 ; the cause of action was 
 a note from Head to Hartzog, dated 1st Feb- 
 ruary, 1832, for $500. with interest on $300, 
 from 1st January, 1831, to 1st January. 1832, 
 and interest on $500, until paid. On 1st Oc- 
 tober, 1832, (the date of the l)ill of sale for 
 the negroes) Hartzog executed on Sheriff 
 Harley's execution book, a receipt '"for the 
 debt and interest in full of this case." On 
 the same day, he paid to Harley $6.50, as 
 sheriff's fees, and on the 18th May. 1833, 
 he paid the clerk's fees, $5.50. Whether it 
 was done bona fide or mala fide, the amount 
 due on the execution, was, doubtless, applied 
 in r)art payment of the purchase money of 
 
 52 
 
 the negroes, and after deducting the amount 
 of the execution from tlie $700, is left to be 
 paid otherwise, about the sum covered by 
 the receipt of the .same date, ($187.43.) There 
 is some difference, though not much. There 
 was a judgment of John T. Willis against 
 Newport Head, for $280.43, with interest and 
 costs, entered 12th November, 1839 — cause of 
 
 *131 
 action, a note for *$98.45, due 21st January, 
 18^57, and another note for .$87, due 1st Jan- 
 uary, 1836. Both notes were from Head, to 
 J. T. Willis, and contracted several years 
 after the deed of trust was executed. The 
 judgment of the defendant, Baxley, again.st 
 Head, is for $50.79, besides, subseiiuently ac- 
 cruing interest and costs. The execution was 
 entered 8th of Augu.st, 1838. The cause of 
 action was two notes of Head, one to P. P. 
 Noling for $30.50, dated 1st January, 1838 — 
 the other to Jackson and Baxley, for $27.10, 
 dated 2d January, 1838. The style of the 
 case is Jackson and Baxley v. Newport Head. 
 There was another execution spoken of by 
 the witness, ^Mathews, as due to himself by 
 Head. The cause of action was after the 
 date of the trust deed. The date and other 
 particulars were not furnished me. There 
 does not appear to have been any other exe- 
 cution ever entered in the Sheriffs office 
 against Head, besides those above described. 
 Thei-e was no existing debt proved against 
 Head, but a note for $56.50, which was sold 
 by the witness, Richmond Watson, to the 
 defendant, Baxley, for $6.50. It is shown 
 that James T. Willis, (who married Head's 
 sister,) liad notice of the trust deed before 
 Head's debt to him was contracted. Head 
 was considerably indebted to him. It came 
 out in tlie evidence, that Head sold Albert 
 to Willis, who ran oft' the negro. I suppose, 
 that the proceeds of Albert were applied in 
 part payment of Head's indebtedness to him, 
 and, that the judgment of Willis, against 
 Head, was for the balance. 
 
 On the foregoing state of facts, the neces- 
 sarj' inference would be, that Hartzog did 
 bona tide purchase the negroes from Head, 
 for a valuable consideration, and that he 
 afterwards made a voluntary conveyance of 
 the said negroes to Head's wife and children. 
 This is tne import of the transaction between 
 Hartzog and Head, which I have above stat- 
 ed, and if this be the conclaslon, the case is 
 divested of all difficulty, and the rights of 
 the complainants are unquestionable. There 
 are, however, other facts to be considered, 
 which are stated in the Commissioner's re- 
 port of the evidence. This evidence was tak- 
 
 *132 
 en sub*ject to all legal objections. The de- 
 fence which the defendants have attempted 
 to establish is, that the negroes were not pur- 
 chased by ir±artzog. That the bill of sale and 
 receipt acknowledging the payment of money, 
 were pretensive — that the whole arrangement 
 was intended to enable Head to settle his
 
 HEAD V. HALFORD 
 
 *134 
 
 proi<o-ty on his wife and children, in fraud 
 of his creditors. If this position has been 
 sustained by the evidence, then the deed of 
 trust was void in its inception. 
 
 If a conveyance, whether voluntary, or for 
 a valuable consideration, be executed with 
 the actual intent to commit a fraud, it is 
 void from the beginninj; and so continues. It 
 is so vitiated by the fraud, that it is void not 
 only against existing, but subsequent credi- 
 tors. The payment of the del its which were 
 intended to be defeated by other means, than 
 the property conveyed, cannot wash away the 
 original taint. A title thus derived, can only 
 become valid by becoming, as it were, a new 
 title, under the operation of the statute of 
 linmations. I am speaking of coui-se, of the 
 rights of third persons, and not of those of 
 the parties to the fraud; between whom a 
 fraudulent arrangement is binding. If a per- 
 son, who is indebted, bona tide makes a vol- 
 untary conveyance of his property, and with 
 no intent to commit a fraud, it is .still a fraud 
 by presumption of law, as against his exi.st- 
 ing creditors. Reade v. Livingston, 3 John. 
 Ch. 481. It is a fraud in law, because the 
 rights of creditors are paramount to those 
 claiming by gift, and no man has a right to 
 bestow his estate gratuitously, to the disap- 
 pointment of his existing creditors, even 
 though such disappointment was not intended 
 at the time. 
 
 The doctrine reduced to its simple essence 
 is, that the estate of a debtor quoad his debts, 
 is the property of his creditors in Etiuity, and 
 is not his to give. If a voluntary conveyance 
 be fraudulent, merely by presumption of law, 
 on account of existing debts which remain 
 unsatisfied, the payment of such existing 
 debts purges the fraud, and makes the title 
 valid. There is no actual fraud to fasten 
 upon it an ineradicable defect. Where the 
 defect had been removed, subsequent credi- 
 
 *133 
 tors cannot come *in and claim to have the 
 property made subject as assets to their 
 claims. 
 
 There is but one combination of circum- 
 stances under which they would be let in. 
 If the prior debts remain uni)aid, and the 
 Court vacates the voluntary conveyance on 
 their application, and for their benefit, sub- 
 sequent creditors will also be allowed to pre- 
 sent their demands, and to participate in the 
 distribution. They would even be allowed to 
 tak." the initiative, though, upon this last 
 point, there is much contradiction in the au- 
 thorities. 
 
 Having premised fbus much as to the prin- 
 ciples of law that may be applicable to the 
 case, I proceed to consider facts tliat have 
 not yet been brought forward. Several wit- 
 nesses were called by the defendants to 
 prove declarations of Head. 
 
 They testified to conversations with him, 
 in which he unequivocally pronounced th<^ 
 trust deed fraudulent. According to him, it 
 
 was a .scheme to defeat his creditors. If 
 Head's declarations were to be received as 
 evidence, and full credit given to him. there 
 could remain no doubt but that the deed of 
 trust was contaminated by an actual fraud. 
 J'.ut I rule out the whole (»f the testimony as 
 to Head's declarations as incompetent, (Foot- 
 man V. Pendergrass (.•? Rich. Kq. .'«].) A hu.s- 
 l)and cannot, even when he has no interest, 
 be a witness for or against his wife. If he 
 cannot be a witness, a fortiori his declara- 
 tions are inadmissible. The other nuxst ma- 
 terial evidence taken in the case, which tends 
 to invalidate the deed of trust as a fraudu- 
 lent arrangement again.st Head's creditors, 
 is that of Dr. James W. Tarrant. His tes- 
 timcmy, .so far as it bears on this issue, con- 
 sists of a statement of certain declarations 
 made by Hartzog just before the execution of 
 the trust deed, and while it was in coutem- 
 plathHi. He said that Hartzog came to his 
 hou.se and asked him to draw a deed, making 
 Samuel Reed and David Hair trustees for 
 Mrs. Head and her children. He told the wit- 
 ness that he had been a trustee (by a deed 
 from Head,) for Head's family. That he did 
 not wish to hold the property any longer, and 
 wished to convey it over to Re«^d and Hair. 
 
 *134 
 The witness de*clined, and excused himself, 
 by alleging his incompetency to draw such a 
 deed, and advi.sed him to go to a lawyer. 
 Hartzog said.- that what he was doing, was 
 for the benefit of Head's family. That he 
 iiad had the property in his hands long 
 enough; that he wished to turn it over to 
 Reed and Hair;- and that this would "make 
 a stronger link in the chain." He said that 
 Head did not owe him anything when he made 
 the deed to him, and that it was merely done 
 to secure the property to Head's family. The 
 witness repeats, that he understood Hartzog 
 to say. that Head had transferred the ne- 
 groes to him, for the benefit of Heads wife 
 and children, and that Head owed him noth- 
 ing at the time of the transfer. Hartzog 
 said, that he was at liberty to do as he pleas- 
 ed with the negroes, for the benefit of Head's 
 family. So far, the evidence of the witness 
 relates to the declarations of Hartzog. 
 
 The witness says further, that a short 
 time after the date of this conversation, the 
 deed of trust was proved before him as a 
 Magistrate— tliat Head got the negrm^s from 
 his father's estate— that they were never In 
 pos.se.ssion of Hartzog, but have always been 
 in the possession of Head and his family— 
 that the deed embraced all the property that 
 Head had in pos.session— that Hartzog was 
 the brother-in-law of .Mrs. Head— that he 
 was a "tight-fisted man" — was not likely to 
 have bought the nogroes and made them over 
 to his sister-in-law, without consideration. 
 The witness further .said, that Hartzog, Reed 
 and Hair were all of them honest men— that 
 Head became considerably indebted to James 
 T. Willis, who had married his sister, and
 
 *134 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 who was aware of the deed of trust at the 
 time tliat the debt to him was contracted. 
 That Head sold Albert to Willis, who ran 
 him off on account of the deed, and that 
 Hair and Reed never sued for Albert. He 
 also proved that Hartzog is dead. That 
 Head, seven or eight years since, brought 
 suit for the negroes, which he afterwards 
 dropped, and that he was "very angry at the 
 time with the whole concern," alleging that 
 they would not let him have any control 
 over the property, and that he did not like 
 it. The other statements of this witness re- 
 
 *135 
 
 late *to the declarations of Head, impeach- 
 ing the fairness of the deed of trust, which 
 have been already ruled out as inadmissible. 
 
 It will not fail to be observed, that the 
 most material part of this witness's testi- 
 mony, bearing upon the issue of fraud, is a 
 statement of the declarations of Hartzog, 
 made at the time when he was about to di- 
 vest himself of his title to the negroes, and 
 when neither Hair nor Keed, the trustees, 
 nor Head's wife or children, were present. 
 It seems strange that he should have made 
 such declarations, which if they were true, 
 would be so much opposed to his previous 
 caution, and all that machinery of forms 
 which he had employed to carry out his 
 views. But the question occurs, are these 
 declarations admissible to Impeach the deed 
 of trust that he executed? 
 
 The admissions of a party to the record, 
 against himself, are generally considered 
 competent evidence. Such admissions are 
 received partly from iwcessity, because in 
 many cases no other evidence exists, and 
 partly on the principle that the cautious 
 selfishness of man's nature would generally 
 be a sufficient safe-guard against the admis- 
 sion of facts that have no existence. They 
 emanate also from a person, who, from his 
 interest in the subject matter, may be pre- 
 sumed to possess the most accurate informa- 
 tion. Though the admissions of parties to 
 the record are accepted by Courts as evi- 
 dence, on what seems to be sound legal phi- 
 losophy, yet they are very far from being, 
 as is sometimes said, the highest and most 
 satisfactory species of evidence. I am speak- 
 ing here of parol admissions by parties, af- 
 fecting their rights or titles, in conversations 
 ante litem motam, and when no controvei'y 
 is anticipated. 
 
 It is seldom that such a conversation em- 
 braces a full statement of the case, and when 
 it does, portions are liable to be forgotten by 
 the witness, and thus the party making the 
 admission loses oftentimes the benefit) of 
 important qualifications. To guard against 
 this mischief, Courts of Equity, without re- 
 pudiating in any degree the principles upon 
 which the admissions of a party are received 
 in evidence, have adopted rules for his se- 
 curity and protection, by which it is required 
 
 54 
 
 *136 
 that the confes*sions or admissions of a 
 party, when intended to be brought forward 
 in evidence, must be mentioned in the i-lead- 
 ings. Daniel, (2 vol. p. 90G,) says: "It is a 
 rule, if a letter or writing amounts to an ad- 
 mission or confession, it must be put in issue, 
 in order that the party against whom it is 
 to be read, may have an opportunity to meet 
 it by explanations or evidence." 
 
 "The rule," he says, "is not confined to 
 writings, but applies to every case where 
 the admission or confession of a party is to 
 be made use of against him. Thus it has 
 Ijeen held, that evidence of a confession by a 
 party, that he was guilty of a fraud, could 
 not be read, because it was not distinctly 
 put in issue. So, also, evidence of alleged 
 conversations between a witness and a party 
 to a suit, in which such party admitted that 
 he had defrauded the other, was rejected, 
 because such alleged conversations had not 
 been noticed in the pleadings. '"Xo man.' 
 says Sir Anthony Hart, 'would be safe, if he 
 could be affected by such evidence. Lord 
 Talbot said, long ago, that if you were to 
 oust a defendant for fraud alleged against 
 him, and the fraud is proved by the acknowl- 
 edgment of the defendant, that he had no 
 right to the matter in litigation, the plaintiff 
 must charge that on the record, to give him 
 an opportunity to deny or explain and avoid 
 it.' " (See Story's Eq. PI. § 2G5.) 
 
 The admissions here sought to be read, are 
 not the admissions of any party to the rec- 
 ord, but they are the admissions of Hartzog, 
 through whom the plaintiff's derived their ti- 
 tle, and through whose admissions alone, 
 their title stands affected with a suspicion of 
 fraud. 
 
 Hartzog has paid the debt of nature an<l 
 no explanation can be given by him. It is 
 true that the authorities quoted speak of the 
 admissions of pai'ties to a suit. It seems to 
 me that the principle is the same and that it 
 is even more dangerous to admit the parol 
 declarations of a deceased grantor against 
 the validity of a title he was about to exe- 
 cute without making the truth of such decla- 
 rations an issue in the pleadings. And this 
 the defendants in their answer have not 
 done. There are difficulties which present 
 themselves from another point of view. 
 
 *137 
 *The admissions of an owner against his 
 own title are sometimes, and under proper 
 restrictions, competent testimony against his 
 grantee, provided they were made when the 
 grantor was the owner, and when he alone 
 was interested. It is equally clear, that tne 
 admissions of the grantor, made after he 
 had conveyed his estate, are not competent 
 against the party to whom it was conveyed. 
 The distinction lies upon the ground, that in 
 the latter case, it is the admission of a party 
 who has no interest in the subject matter. 
 Can the title of the grantee be affected by
 
 HEAD V. HALFORD 
 
 *ir>9 
 
 an imputation of fraud or f)tlier defects cast 
 upou it l>y the jrrautor, when iu pursuance 
 of a precedent aj,'roenuMit he is just about to 
 execute his deed of conveyance, when these 
 dechirations are made, not to, or iu the pres- 
 ence of tht' grantee, but to a stranger? In 
 an issue between the grantee and another 
 party, would those admissions be competent 
 evidence? For the purpose of illustration, 
 suppose the case of a party who has sold his 
 liroperty, and pending the preparation of con- 
 veyances, he whispers to a third person, (not 
 in the presence of the vendee,) that the title 
 he is about to execute is contaminated with 
 fraud, or defective in some other particular. 
 In an action between the vendee and another 
 party, could the admissions of the vendor, 
 made under these circumstances, be received 
 as competent evidence? It seems to me they 
 must be rejected, as the admissions of the per- 
 son who has virtually ceased to be interested. 
 Again: according to Dr. Tarrant's statement, 
 Hartzog said that he was the trustee; that 
 he had held the pi-operty long enough, and 
 that he wished to convey it to other trustees, 
 (Hair and Reed;) then it is the admission of 
 a trustee against the rights of the benefici- 
 aries of the trust: — is the proof of such ad- 
 missions competent against the cestui que 
 trust? I think not. The whole of this doc- 
 trine of the competency of admissions by par- 
 ties, is founded upon the principle, that such 
 admissions are made by the parties in inter- 
 est, and against their own interest. The 
 law presumes that admissions against one's 
 own interest are true, and no admissions are 
 ever received as evidence except under these 
 circumstances, and on this principle. But a 
 
 *138 
 trustee is not *in reality a party in interest — 
 his legal title is a barren estate — his admis- 
 sions against the rights of the cestui que 
 trust do not affect his interest. They take no 
 money out of bis pocket. He may admit away 
 the rights of those for whom he holds, and it 
 costs him nothing. Such admissions do not 
 come within the principle upon which the 
 competency of such evidence rests. The safe- 
 guard for their truth and reliableness is 
 wanting. These views would apply if Hart- 
 zog was still the trustee and a party to the 
 record. 
 
 But to make the case stronger, Hartzog 
 is dead, and long before his death ceased to 
 l)e the trustee, if he ever was. If he were 
 alive, he might be examined as a witness. 
 By his death before this trial, the defend- 
 ants have the misfortune, not uncommon, of 
 losing a witness, whose declarations cannot 
 be received as evidence. But, suppose the 
 whole statement of Hartzog to Dr. Tarrant 
 to be admissible, and to be received as evi- 
 dence, it would be ditticult to say that the 
 defendants had made out more than a sus- 
 picion of fraud. If these declarations of 
 Hartzog be considered, the case made out by 
 the evidence amounts to this: That Hart- 
 
 zog did not himself buy and give the proi)- 
 erty to Head's wife and children, but that 
 the property was conveyed by Head to him. 
 in trust for his family. If this be true, the 
 confession of judgment, when nothing was 
 due; the bill of sale, purporting to be for 
 full and valuable consideration; the receipt 
 for tlu' purchase money, when no money was 
 paid — all these circum.stances were in a high 
 degree suspicious. But Hartzog did not say 
 to Tarrant, that a fraud against Head's cred- 
 itors was contemplated, nor did he explain 
 why he thought his deed to Reed and Hair, 
 "would make a stronger link in the chain." 
 
 They may have suppo.sed that a voluntary 
 deed from Head would not prevail against 
 his future creditors, and the finessing, if it 
 existed, may have had reference to that state 
 of things. It is an important fact that no 
 debt of Head's cotemporary with the date of 
 the deed of trust, and for several years after- 
 wai'ds, has been proved, nor is there any gen- 
 
 *139 
 eral *proof of his pecuniary embarrassment 
 or insolvency at that time. 
 
 One witness, (Jacob C. Kitching.) says, that 
 in 1833 or 1834, Hartzog came to his mill 
 and put up an advertisement, calling upou 
 "all persons indebted to Head to make pay- 
 ment to him, and that all persons whom 
 Head owed should render their demands to 
 him for payment." This does have the ap- 
 pearance of an arrangement to defeat cred- 
 itors, and, as has been said, it has not been 
 shown that there were any creditors at that 
 time to be defeated. There is no priK)f of a 
 solitary debt at the date of the deed, except 
 the inference that may ari.se from the fact 
 of this advertisement having been put up by 
 Hartzog before the world. Therefore, admit- 
 ting all of Tarrant's evidence to be compe- 
 tent, I do not think that the defendants have 
 made out a case which could authorize me 
 to say, that the deed of trust \Vas void for 
 fraud. If Hartzog did, in fact, pay no con- 
 sideration for the negroes, and they were 
 conveyed by Head to him, to be held in trust, 
 for the benefit of the wife and children of 
 the latter, or to be conveyed by Hartzog to 
 j^ome other person, for the same pur[)ose, 
 this, I think, would make it a post-nuptial 
 marriage settlement. As such, it would come 
 under the provisions of the statute law, re- 
 quiring marriage contracts and settlements 
 to be recorded. It would be easy to evade 
 tiie registry laws, if a man were permitted 
 to convey his property to another, with the 
 understanding that it should by him be con- 
 veyed to a third party, iu trust for Jiis wife 
 and children, and say this is not a marriage 
 settlement; thus accomplisliing by indirec- 
 tion, what could not bo directly done. Equity 
 will look at the transaction as it is, will re- 
 gard it in its true ciiaracter, stripped of all 
 the disguises with which it may be invested. 
 And if the arrangement be intended as a pro- 
 vision out of the husband's estate for his 
 
 65
 
 *1C9 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 wife and children, made after marriage, it 
 is a post-nuptial marriage settlement, what- 
 ever may be the forms which the conveyance 
 assumes. It would, therefore, be void against 
 creditors, without notice express or implied. 
 If the deed of trust in this case be a mar- 
 riage settlement, it would be void against 
 
 *140 
 the debts of the defendant, *Baxley, for he 
 had no express notice, and no implication of 
 notice could be raised against him from the 
 registry of the deed in the office of the Reg- 
 ister of Mesne Conveyances. But having 
 ruled out the declarations of Head and Hart- 
 zog as incompetent, there are not suthcient 
 grounds for deciding, that the transaction 
 was different from what it purported to be — 
 a gift from Hartzog. The decree must be 
 for the complainants. 
 
 It is ordered and decreed, that the levy 
 upon the negro Jesse be discharged, and that 
 the defendants be perpetually enjoined from 
 levying upon and selling any of the property 
 conveyed in the said deed of Henry Hartzog 
 to the said Reed and Hair, in trust for the 
 complainants. 
 
 It is further ordered and decreed, that the 
 defendants pay the costs of suit. 
 
 The defendants appealed on the grounds: 
 
 1. Because the decree rejects as inadmis- 
 sible, the declarations of Hartzog, made pri- 
 or to his alleged conveyance to Hair and 
 Reed — whereas said declarations are admis- 
 sible as evidence against the assignees of 
 Hartzog, claiming under him, immediately 
 or remotely. 
 
 2. Because said declarations abundantly 
 establish that the transaction in question 
 was a post-nuptial marriage settlement by 
 Head, and as such, it is void, for want of 
 recording, against such of Head's creditors 
 as had no actual notice of it. 
 
 3. Because the decree is contrary to equi- 
 ty and the evidence. 
 
 J T. Aldrich, for appellants. 
 Bellinger, Hutson, contra. 
 
 The opinion of the Court was delivered by 
 
 DUNKIN, Ch. The Chancellor was of 
 opinion, that if the bill of sale from Sheriff 
 Harley, to Henry Hartzog, (the brother-in 
 law of the complainant,) dated 1st October, 
 1832, was merely colorable, and that he held 
 the slaves on a secret trust, for Newport 
 Head's wife and children, which was car- 
 ried into effect by the deed of 28th Janu- 
 ary, 1833, to the trustees Reed and Hair, 
 
 *141 
 *this must be regarded as a post-nuptial set- 
 tlement, and would be void for want of 
 proper registry. In this view, this Court 
 unanimously concur, and it is unnecessary to 
 add materially to the reasoning of the Chan- 
 cellor on this subject. If the deed of Janu- 
 ary, 1833, was, bona fide, a settlement by 
 Hartzog on the family of Head, it would not 
 be sustained by the consideration of mar- 
 
 56 
 
 riage, and woiUd be, in no respect, a marriage 
 settlement. But, if the property belonged 
 to the husband, who confessed a voluntary 
 judgment to a third person, and then had 
 the property sold at Sheritt''s sale, to the 
 plaintiff' under such judgment, who, there- 
 upon, settled the property on the family of 
 the apparent debtor, this flimsy contrivance 
 cannot defeat the beneficial provisions of the 
 statute. It is void as to creditors, if not 
 recorded in the proper offices, within the 
 time prescriTjed by law. • 
 
 The character of the transaction, was prov- 
 ed by evidence of the declarations of Henry 
 Hartzog, (who is since dead) made while he 
 held the Sherift''s deed for the slaves, and be- 
 fore his transfer to Reed and Hair as trus- 
 tees. The Chancellor received the evidence 
 as reported to him by the Commissioner, sub- 
 ject to objection, and it is set forth in the 
 decree. If admissible, it establishes, very 
 clearly, the declarations of Hartzog, that 
 Head owed him nothing at the time of the 
 purchase from the Sheriff, and that Head 
 had transferred the negroes to him for the 
 benefit of his (Head's) wife and children. 
 Upon consideration, the Chancellor reject- 
 ed the testimony and decreed for the com- 
 plainants ; and the rejection of this evidence 
 constitutes the defendants' first ground of 
 appeal. 
 
 There are several classes of cases, in which 
 the admissions of tnird pei-sons, not parties 
 to the suit, are admissible in evidence. It 
 is done, for instance, says Mr. Greenleaf, 
 (Vol. 1, § 181,) "when the issue is, substan- 
 tially, upon the mutual rights of such per- 
 sons at a particular time; in this case, it is 
 the practice to let in such evidence in gen- 
 eral as would be legally admissible in an ac- ' 
 tiou between the parties themselves." Can 
 there be any doubt that, in an action be- 
 tween the complainants and Henry Hartzog, 
 or between these defendants and Henry Hart- 
 
 *142 
 
 zog, *his admissions as to the character of 
 his title at that time, would be receivable in 
 evidence? If, prior to the deed of January, 
 1833, the complainants had sought to en- 
 force the trust, or the creditors of Head had 
 attempted to set aside the Sheriff's deed of 
 October, 1832, would not the admissions of 
 Henry Hartzog be evidence of the most direct 
 and satisfactory character? 
 
 The admissions of a person not a party 
 are also admissible, in respect of his privity 
 with a party. Id. § 189. The trustees under 
 the deed of January, 1833, are privies in es- 
 tate with Henry Hartzog, and any admis- 
 sions by him qualifying his right, and made 
 while he held the legal title, are receivable 
 in evidence against his successors, in the 
 same manner as they would have been 
 against himself. See also § 190. The Chan- 
 cellor remarks, that "Hartzog, if alive, might 
 be examined as a witness. By his death, the 
 defendants have the misfortune, not uncom-
 
 RAWLS V. WALL 
 
 *144 
 
 ]i)oii, of losing a witness whose declarations 
 cannot be received in evidence." It does 
 not appear to us^liat the defendants wonld 
 have been obliged to njake a witness of Ilart- 
 zog, if alive: or that they have lost anything 
 by his death. His admissions, made in lS.'i2, 
 wonld be equally receivable in evidence, al- 
 though he were now to testify that those 
 declarations, thus made by him, were not 
 true, or that he never made them. "These 
 admissions by third persons" .says the ele- 
 mentary writer, already cited, § 191, "as 
 they derive their value and legal force from 
 the relation of the party making them to the 
 Iiroperty in question, and are taken as parts 
 of the res gestio, may be proved by any com- 
 petent witness who heard them, without call- 
 ing the party by whom they were made. The 
 question is. whether he made the admi.ssion, 
 and not merely, whether the fact is as he 
 admitted it to be. Its truth, where the ad- 
 mission is not conclusive, (and it seldom 
 is so,) may be controverted by other testi- 
 mony; even by calling the party himself 
 "When competent; but it is not necessary to 
 produce him ; his declarations, when admis- 
 sible at all, being admissible as original evi- 
 dence, and not as hearsay." 
 
 A majority of this Court is of opinion, that 
 *143 
 the admissions of *Henry Hartzog, as proved, 
 were properly receivable in evidence, and that, 
 corroborated and confirmed as they are by 
 his deed to the trustees, of January, 1833, 
 it established this latter to be a post-nui>- 
 tial settlement, within the provisions of the 
 Acts of Assembly. Not having been duly 
 recorded, it should have been declared void 
 as to the rights of creditors. It is ordered 
 and decreed, that the decree of the Circuit 
 Court be reformed — that the injunction be 
 dissolved, and that the bill be dismis.sed, but 
 without costs. 
 
 JOHNSTON, DARGAN and WAKDLAW. 
 CC. concurred. 
 Decree reversed. 
 
 5 Rich. Eq. 143 
 
 ZACHARIAH RAWLS v. WILLIAM WALL 
 and Another. 
 
 (Columbia. Nov. and Dec. Term, 1852.) 
 
 [Principal and Agent <g=»71).] 
 
 Bill t() sot aside a piiifliasc made by au 
 agent of his principal's property at sheriff's sale: 
 the Circuit Chancellor refused to set aside the 
 piucliase, but ordered defendant to aecouut for 
 "the true value" of the property:— //cW. that 
 this meant "the true value" at the time <.f tlie 
 sale; and plaintiff having acquiesced in the de- 
 cree and acted under it, his appeal, after an ad- 
 verse report from the Commissioner on the ques- 
 tion of value, was refused. 
 
 [Kd. Note.— Cited in Verdier v. Verdier, 12 
 Rich. Eq. 143. 
 
 For (ither cases, see Principal and Vgent. 
 Cent. Dig. S IKS: Dec. DIr. <s=>7{).1 
 
 Before Wardlaw, Ch., at rairtield, Julv, 
 18ol. 
 
 Wardlaw. Ch. This is a bill by the princi- 
 pal against his agent, to enjoin the execution 
 of a judgment of the agent against the prin- 
 ciital, and to .st»t aside certain purchases of 
 the princiiial's estate by the agent, and for a 
 general account of the agent's transactions 
 in the affairs of bis principal. On November 
 13, 1S44, Z. Hawls confessed a judgment to 
 Wm. Wall for ?l.;iOO. with Interest thereon 
 from Nnvember 10, 1.S44. and on the same 
 day Wall gave Rawls a written acknowledg- 
 
 •144 
 ment, that the judgement was intended as 
 security to Wall for .several bail bonds he had 
 signed as surety for Rawls, and for various 
 notes held by him on Kawls. and for several 
 notes of Rawls to other i>er.sons. in which he 
 was surety. On the same day, Kawls executed 
 a deed, constituting Wall his attorney, to de- 
 mand and receive all money due or to become 
 due to him in this State — to pay all his just 
 debts, and to take charge of his property, 
 both real and personal, during his ab.senc-e 
 from the State, and to act for him generally 
 in relation to his business here. The judg- 
 ment and power of attorney were given by the 
 plaintiff in contemplation of his absence for a 
 time from the State; and the general ar- 
 rangement between the parties was, that 
 plaintiff" was to furnish the defendant with 
 .i;300. for the satisfaction of plaintiff's credi- 
 tors having -older liens, and to deliver to him 
 plaintiff's property and claims here: and 
 that defendant was to protect plaintiff's proiv 
 erty, until plaintiff's return from the West 
 with means. The plaintiff soon afterwards 
 left the State. Before his departure, he hired 
 his land and three negroes, and .some chat- 
 tels, for 1845, to one Carter, for five-sixths 
 of the crop whic-h should l)e made. — he de- 
 livered to the defendant chattels and ( re<lits 
 to a considerable amount in value, but, so far 
 as appears, did not pay to him the ^.'UK). ac- 
 cording to stipulation. Carter, who is since 
 dead, did not remain the whole year at 
 Rawls's i)lace. having been informed by the 
 sheriff that the property must come to sale 
 under the executions, in the course of the 
 year; and defendant rented out the place 
 to one Thomas Barber, for ^7r». and hired out 
 some of the negrt>es. The defendant also dis- 
 posed of nine bags of cotti>n, two horses, a 
 a mule, a cow and calf, a wagon and harness, 
 some hogs, two axes, some corn and fodder 
 and small notes, belonging to the plaintiff, 
 for sums sulHcient, if so a]tpropriated. to sat- 
 isfy the elder liens uptm plaintiff's jiroperty; 
 but, as defendant alleges, these sums were 
 applied to the discharge of other liabilities of 
 the plaintiff. On November 5, 184."), the 
 Sheriff', not acting, so far as appears, at the 
 instance of defendant, sold the land and two 
 negroes belonging to plaintiff, under execu- 
 tions, to the defendant, for the aggregate 
 
 <£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 
 
 67
 
 *Ub 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 *145 
 price *of $450, which, in the opinion of the 
 witnesses, was not more than half the value. 
 Most of the bid of defendant was applied 
 to the satisfaction of older executions. Be- 
 fore and after the sale, the defendant de- 
 clared that he would allow the plaintiff to 
 redeem the property, upon the plaintiff's re- 
 paying his advances; and all that was owing 
 to him by plaintiff. At the time of the sale, 
 the impression prevailed that Wall was pur- 
 chasing for the plaintiff, and one witness, 
 Harrison, forebore to bid on that account ; 
 but there was no proof that Wall declared 
 that he was so purchasing at the time of sale. 
 After Rawls's return to this State in 1846, 
 he and defendant attempted some settlement, 
 but disagreeing, defendant gave notice that 
 he should hold the property as his own, if 
 his claims were not promptly settled, and 
 afterwards sued out a ca. sa. against plain- 
 tiff. This bill was tiled November 112, 1S47, 
 to enjoin the execution of the plaintiff, and 
 for a general settlement. 
 
 The case of the plaintiff is not very strong. 
 He failed in his promise, in the first instance, 
 to furnish money to discharge the elder liens ; 
 and since his return to the State, he has 
 not used proper diligence in his efforts to re- 
 deem. But time is not usually regarded in 
 this Court as of the essence of contracts ; 
 and purchases by agents, from the principal, 
 should be scrutinized with vigilant suspicion. 
 Story Eq. § 315, 316. The defendant is liable 
 to account generally for his agency in the af- 
 fairs of the plaintiff, and he is not entitled 
 to make protit of a bargain, to which be was 
 helped by the fiduciary relation he sustained 
 to an absent principal, and by his equivocal 
 declarations as to the character in which he 
 purchased, discouraging competition. 
 
 It is ordered and decreed, that it be re- 
 ferred to the Commissioner to inquire and 
 report as to the accounts between the parties, 
 in which accounting the defendant must be 
 charged with the true value of the land and 
 slaves bought at sheriff"'s sale, and of all the 
 property and choses of the plaintiff received 
 by him, and be discharged for all expendi- 
 tures, debts and liabilities on account of the 
 plaintiff. Costs to await the accounting. 
 *146 
 
 *In obedience to the above decree, the Com- 
 missioner submitted his report, dated July 
 1, 1852, as follows: 
 
 "To use the words of the Chancellor in 
 his decree in this case, this is a bill 'filed by 
 a principal, against his agent, to enjoin the 
 execution of a judgment of the agent against 
 the principal, and to set aside certain pur- 
 chases of the principal's estate by the agent, 
 and for a general account of the agent's 
 transactions in the affairs of his principal.' 
 
 "The Chancellor's decree settles all the 
 questions of law made by the pleadings, sets 
 up the purchases made by the defendant at 
 a sale of the plaintiff's property, made by the 
 
 58 
 
 Sheriff" of Ohesfer District, on the 4th No- 
 vember, 1845, under sundry judgments in 
 force against plaintiff at that time, and clos- 
 es by a reference to the Commissioner in the 
 following language: — 'It is ordered and de- 
 creed, that it be referred to the Coumussion- 
 er to inquire and report as to the accounts 
 between the parties ; in which accounting, 
 the defendant must be charged with the true 
 value of the land and slaves, bought at sher- 
 iff"'s sale, and of all the property and choses 
 of the plaintiff", received by him, and be dis- 
 charged for all expenditures, debts and lia- 
 bilities, on account of the plaintiff".' 
 
 "On the 13th November, 1844, the plaintiff 
 confessed a judgment to the defendant in 'che 
 sum of one thousand three hundred dollars. 
 The defendant admits in writing at the time 
 of the confession — 'That the consideration of 
 the said judgment is my liability for him, 
 as security on several bail bonds, together 
 with various notes, which I hold on said 
 Zachariah Rawls, and several notes given 
 by him to various persons on which I am 
 his surety' — In other words, the confession 
 was given in part as indemnity. Therefore, 
 in order to state the accounts between ihe 
 parties, as directed by the decree, it must 
 be determined what amount, if any, was due 
 to defendant on this judgnuMit, at some con- 
 venient period for the accounting. Plaintiff 
 and defendant, in the bill and answer, ditt'er 
 so widely in their statements as to this 
 amount, and their accounts were so badly 
 kept on both sides, as appears from the ex- 
 
 *147 
 hibits filed, that *the Commissioner would 
 feel at very great loss to fix this amount, but 
 for tlie testimony of the witness, Martin 
 Reynolds, examined on reference, before the 
 hearing. He testified, that he, soon after 
 Rawls returned from the West, presented a 
 statement or ac-count to Rawls, in which Wall 
 had charged him (Rawls,) with a statement of 
 claims he held against him to the aggregate 
 amount of !1>773.41 and in which he had given 
 Rawls credit, the items stated, to the amount 
 of .1^261.34 ; thus leaving a balance due to 
 Wall, at that time, of $512.07. The witness 
 testified, that when he presented this account 
 to Rawls, he said the debts were correct,, 
 but that he thought that he was entitled to 
 more credits than were allowed him therein, 
 but could not recollect but a very few small 
 items. 
 
 "This statement of accounts was off"ered in 
 evidence and proved by the witness. To 
 this evidence Rawls made no reply. The 
 Commissioner's judgment is, that at the 
 time of the sale of Rawls's property, by the 
 Sheriff, 4tli November, 1845, there was just- 
 ly due the defendant, on this confession of 
 judgment, about .$500. 
 
 "At the hearing, some evidence was offei*- 
 ed to shew that the property purchased at 
 sheriff's sale was bid off for less than its 
 true value. This property was a small-
 
 RAWLS V. WALL 
 
 ^15) 
 
 tract of land, and two negroes, one old woin- 1 
 an. and a boy proliably about two or three 
 years old. This property was purchased by 
 the defendant, and under the <.ir(\inistanees 
 of the case, the Chancellor thou^lit projier 
 to refer it to the Counnissioner to imiuire 
 whether it was sold for its true value or not. 
 The wliole jiroperty was bid off at $445, of 
 which amount, only about ."plL'O was applied 
 to the confession, there beint; othi-r older 
 judgments in the ofhce against this plaintiff 
 at that time. Allegations of unfair 
 conduct on the part of defendant, touch- 
 ing this sale and purchase, wtTe made in the 
 l»ill, but were denied in the answer, 
 and stand wholly unsupported by evi- 
 dence. The defendant, therefore, .seems 
 entitled to the presumption that the sale was 
 a fair one, having been made by the prop»'r 
 officer, under executions unsatisfied against 
 the defendant at law, and stands free to 
 
 *148 
 insist, that the be.st evidence *of the true val- 
 ue of the property, is the price at which it 
 sold at a fair sale. Several witnesses were 
 examined on reference before me, who testi- 
 fied that this property was bid off by de- 
 fendant, at less than its true value, and about 
 an equal numl)er testified on the other side, 
 that Wall gave the full value of the property 
 at that time. 
 
 "The judgment of the Conunissioner is, 
 that the land and two negroes were sold for 
 their full and true value at that time. 
 
 '"On the reference, plaintiff offered to prove 
 the present value of the property, to which 
 defendant objected. The Commissioner 
 held that the inquiry must be confined to 
 tlie time of the sale. Tliat such was his 
 construction of the decree. 
 
 "T'pon the conclusions arrived at in this 
 report, I find the balance due to the defend- 
 ant, William Wall, upon his said judgment 
 against complainant, to be three hundred 
 and eighty dollars, and Interest thereon from 
 the 4th day of November, 1845." 
 
 The complainant excepted to the report. 
 
 Because the Commissioner has erred in 
 not charging the defendant with the present 
 value of the land and slaves, the subject 
 of suit. 
 
 The cause was heard on the report and ex- 
 ception, at June Sittings. 1S52, before his 
 Honor. Chancellor Johnston, who made the 
 following order: 
 
 Johnston, Ch. On hearing the report of 
 the Commissioner in this case, and argument 
 on the exception, it is ordered, on motion of 
 Hoyce, complainant's solicitor, that tiie com- 
 plainant's exception be sustained, and that 
 the report be re-conuuitted to the Conunis- 
 sioner with directions to re-state the ac- 
 count uj)on the principles of this order. 
 
 The defendant appealed, on the ground, 
 that his Honor, the Chancellor, erred, in sus- 
 taining the exception to the report of the 
 ■Commissioner. 
 
 The complainant also moved to moflify the 
 decree of his Honor. Chancellor Wardlaw, 
 so as to declare the purchases of complain- 
 ant's propt'rty, by defendant, void : 
 *149 
 
 ♦Because the defendant >t;mdiiig in a lidu- 
 ciary relation to the coniplainant. his pur- 
 chases, under the circumstances, were fraud- 
 ulent and vtad. 
 
 Hanunond, McCants. for defendant. 
 Boyce, for plaintltT. 
 
 The opinion of the Court was delivered by 
 
 I>rXKIN. Ch. The oitject of this bill was 
 to enjoiji an execution which the defendant 
 held against the C(»mplaiiiant, and to set 
 aside a purchase which the defendant had 
 made of the complainant's property at sher- 
 iff's sales. The charge was, that the defend- 
 ant was. at the time, the agent of the com- 
 plainant, and that the proi»erty wa.s sacri- 
 ficed for half its value. The cause was first 
 lieard at July Term. 1K51. The Chancellor, 
 after reviewing all the facts, remarks, that 
 "the case of the plaintiff was not very strong." 
 but that i)urcha.ses of this character should 
 be scrutinized strictly ; and concludes, 
 by directing an account, in which the defend- 
 ant should be charged, among other things, 
 "with the true value of the land ami slaves 
 bought at sheriff's sale." T'nder this de- 
 cree, the parties proceeded with their refer- 
 ences, and, 4it July Term. l>vi"J. the Conunis- 
 sioner sulimitted his report, stating, among 
 other things, that the property purchased 
 at sheriff's sale was a small tract of land 
 and two negroes, one an old woman, and the 
 other a boy, probaidy about two or three 
 years of age, and that, after hearing the 
 testimony, his judgment was, "that the land 
 and two negroes were sold for their full 
 and true value at the time." And that, on 
 the accounting, the complaimmt was indebt- 
 ed to the defendant in the sum of three hun- 
 dred and eighty dollars, with interest from 
 4th Xoveml er, 1845. To this report the 
 coniplainant excepted, because the Commis- 
 sioner had erred in not charging the defend- 
 ant with the present value of the land and 
 slaves ; ami the exception was sustained. 
 
 It ai)pears to this Court, that the Commis- 
 sioner acted in strict conformity with the 
 terms of the decree of July. is.-)l. If the 
 coniplaliKint had been dissatistied with the 
 
 ♦ISO 
 measure of justice ♦then awarded to him, 
 he was at liberty to have had that decree 
 revised. But he acted under the decree, and 
 witnesses were examined before the Commi.s- 
 sioner, to prove that the property was sold, 
 at sheriff's sales, at less than its true value. 
 On the pn'ponderance of testimony, the Com- 
 missioner v'ame to a different conclusion; 
 and, on that issue, the coniplainant having 
 failed, he seeks now to reform the decree 
 of isr>l. in which he had ac<piiesced, and un- 
 der which he had acted, and thereby create 
 
 68
 
 *150 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 a new issue for another inquiry before tlie 
 Commissioner. This Court is of opinion 
 that the exception should have been over- 
 ruled, and the report of the Commissioner 
 confirmed ; and it is now so ordered and 
 decreed. 
 
 JOHNSTON, DARGAN and WARDLAW, 
 CC, concurred. 
 Appeal sustained. 
 
 5 Rich. Eq. 150 
 
 D. REEVES and Others v. GEORGE H. 
 TUCKER and Others. 
 
 (Columbia. Nov. and Dee. Term, 1852.) 
 
 [Equity <g=3840; Executors and Administrators 
 <g=>506.] 
 When a testator or intestate has dieci in the 
 possession of personal property, ond that fact 
 is alleged, after the usual form, in a bill for par- 
 tition or account against the executor or admin- 
 istrator, the answer of the latter cannot be 
 received as evidence in support of a title ad- 
 verse to that of the testator or intestate: — the 
 executor or administrator, asserting such claim, 
 must proceed to support it by the same evidence 
 as if he were the actor in the proceedings. 
 
 [Ed. Note.— Cited in Barr v. Haseldon, 10 
 Rich. Eq. 62; Cloud v. Calhoun, Id. 366. 
 
 For other cases, see Equity. Cent. Dig. § 700 ; 
 Dec. Dig. <®=>340 ; Executors and Administra- 
 tors, Cent. Dig. § 2176; Dec. Dig. (©=506.] 
 
 Before Dargan, Ch., at Barnwell, February, 
 1852. 
 
 Dargan, Ch. This is a bill for account 
 and distribution of the estate of Joseph 
 Tucker, deceased. The complainants are 
 legatees. The defendant, George H. Tucker, 
 is a legatee ; he is also executor of the es- 
 tate. The other defendants are legatees. 
 
 The present litigation relates entirely to 
 *151 
 three negroes, alleged *by the complainants 
 to belong to the estate. The defendant, 
 George H. Tucker, denies that they were 
 the property of the testator, and sets up 
 title in himself. 
 
 The negroes in dispute are Isaac, Sam, 
 (sometimes called Dave,) and Bull, (some- 
 times called Lewis.) The defendant, George 
 H. Tucker, omitted to include these negroes 
 in his return as executor. The complainants 
 in their bill mentioned this fact ; alluded to 
 the claim set up by the executor; and charg- 
 ed that the negroes were the property of the 
 testator, and, passed under the residuary 
 clause of his will. The executor contends 
 that his answer, denying the right of his tes- 
 tator to the negroes, and setting up a title, 
 is evidence in his behalf to establish his 
 claim. I think not. The negroes were on the 
 plantation of the testator, in his employment, 
 and imder his control ; and I do not think 
 that there is any authority or reason for 
 holding, that, under these circumstances, 
 an executor should avail himself of his fiduci- 
 
 ary position and possession to seize upon a 
 portion of the ostensible property of the testa- 
 tor, and retain the same in his own right; 
 and, on a bill filed by the legatees, claiming 
 such property as a portion of the estate, by 
 his answer establish his own adverse claim. 
 The answer, in the judgment of the Court, is 
 inadmissible as evidence, and the case must 
 rest upon other testimony. 
 
 The testimony conclusively shows that the 
 negroes were in the possession of the testator 
 at and before the time of his death, and were 
 managed and employed as he managed and 
 employed his other negro property. It is true 
 that George H. Tucker lived with his father, 
 and never lived separate from him. He lived, 
 after lie was grown, as an overseer or super- 
 intendent, and was his father's general agent 
 in the management of his business. There 
 is no proof that he had any special control 
 or possession of these negroes that mignt be 
 referred to the character of a proprietor. 
 There is no proof, in fact, that he had any 
 control or possession at all in reference to 
 these negroes, more than he had of any ne- 
 
 *152 
 groes owned by Joseph Tucker. *The pre- 
 sumption of title is, therefore, with the lat- 
 ter, and the onus lies upon George H. Tucker 
 to prove his claim. 
 
 In relation to the slaves Bull and Sam, I 
 am strongly impressed that the evidence is 
 entirely insufficient for any such purpose. 
 As to Isaac, the case is different. George H. 
 Tucker claimed him in his father's life time. 
 The father admitted that Isaac belonged to 
 George, and what is more, he said that 
 George had bought him. And George H. 
 Tucker, we may well suppose, as his fa- 
 ther's overseer, had the means of purchasing 
 one negro, but not, probably, in the short 
 time he was thus employed, of purchasing 
 three, in addition to the one (Larry) which, by 
 some means, he had got before. 
 
 As to Bull and Sam, there is no proof that 
 he ever set up a claim till after testator's 
 death. 
 
 Only the Spring before, he paid taxes on 
 but one negro, and, I suppose, made his re- 
 turn on oath, as by law required. Whether 
 he meant to pay the tax for Isaac or Larry, 
 I have no means of knowing. The fact is 
 significant either way. It is certainly not 
 calculated to produce the impression that he 
 then owned four negroes. 
 
 The facts relied on to support the claim of 
 defendant to Bull and Sam, are very incon- 
 clusive. They were purchased at the sale of 
 the estate of old John Tucker. George H. 
 Tucker bid them off, took the titles in his 
 own name, executed the mortgage to secure 
 the purchase money, and his name was first 
 on the bond. But the testator was also an 
 obligor on the bond. And it is in proof that 
 he paid the cash instalment for the negroes, 
 and for this purpose asked George H. Tucker 
 
 60 
 
 ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 REEVES V. TUCKER 
 
 ♦155 
 
 to lend him the money, which he did. It 
 would liavt' been a very idle cereujuuy, if 
 Geor;;e II. Tucker had purcha.scd the negroids 
 for himself, for his father to have borrowed 
 of him the money to make the cash payment. 
 There were very intimate bu.siness relations 
 between tne father and son. They very well 
 understood each other; and as the negroes 
 were transferable by delivery. It did not mat- 
 ter which of them took the titles. 
 
 •153 
 ♦And as an illustration of this, we have In 
 evidence another business transaction of a 
 similar character. Isaac, Will, and Teggy, 
 were bid off by the testator, in i»erson, at 
 Moncrieff's estate sale, yet we find George H. 
 Tucker, the fir.st obligor on the bond, Joseph 
 Tucker, the second, and A. liyrd. the third. 
 Titles were also e.xecuted in this transaction 
 for Isaac, Will, and I'eggy, to (ieorge II. Tuck- 
 er, who gave a mortgage of them to I. E. 
 Robinson, the administrator of the e.state, 
 to secui'e the purchase money. Will and 
 Peggy, though included in the bill of sale to 
 George n. Tucker, were confessedly bought 
 for Joseph Tucker, and were his property at 
 his death. Will was given by Jo.seph Tuck- 
 er's last will to Get)rge II. Tiicker, and I'eggy 
 to Lewis Tucker, under which bequest they 
 are now claimed. This transaction shows 
 their mode of doing business, and shows what 
 little force is to be given, to the fact that 
 George H. Tucker received the bill of sale 
 for Bull and Sam from the executor of John 
 Tucker. 
 
 The conclusion is, that Isaac is the proper- 
 ty of George H. Tucker, and Bull and Sam, 
 of the estate of Joseph Tucker, deceased, and 
 pass under the residuary clause of his last 
 will and testament. And it is so ordered and 
 •decreed. 
 
 It is further ordered and decreed, that par- 
 tition be made of the residuary estate of 
 Joseph Tucker, including Bull and Sam, 
 among the parties in intere.st, according to 
 the provisions of said will. 
 
 It is further ordered and decreed, that the 
 accounts of the executor, George II. Tucker, 
 be referred to the Commissioner of this 
 Court, and that he report thereon. 
 
 It is further ordered and decreed, that the 
 parties have leave to apply, at the foot of 
 this decree, for the necessary orders to carry 
 the same into execution. 
 
 The defendant, (Jeorgc II. Tucker, appealed 
 on the ground inter alia: 
 
 Because the answer of the said George H. 
 Tucker, (wiiich is in direct resjionse to the 
 allegations of the bill charging the said slaves 
 to be the property of tlie said Joseph Tucker,) 
 
 ♦154 
 expressly ♦denies that the slaves. Bull and 
 Sam, were at any time the projicrty of the 
 said Joseph Tucker; and claims that the 
 
 said slaves are the property of the said de- 
 fendant ; nor was said answer contradicted. 
 
 Hut son. Bellinger, for appellant. 
 
 Owens, contra. 
 
 The opiidon of the Court was delivered by 
 
 DAUGAN. Hi. The only comment which 
 I deem necessary on the tiue.stions raised In 
 this apiieal. in addition to what has iieen .-^aid 
 in the Circuit decree, will relate to the posi- 
 tion assumed by the defendant. (Jeorge II. 
 Tucker, tiiat his answer, denying tlie title of 
 his testator to the negroes in controversy, 
 should, under the circumstances of thi.«* case, 
 be receivetl as evidence of his own title to 
 the .said negroes. If the answer is adnds- 
 sible as evidence, I apprehend, that it must 
 be received with the usual force of tiiat kind 
 of evidence, and nmst prevail, unless contra- 
 dicted by the testimony (»f two witnesses, or 
 of one and corroborating circumstances. 
 
 The facts are, that the testator dieil in 
 possession of the ni'groes. the title to whom 
 is involved in this litigation. He used and 
 employed them as he did his other negroes, 
 to the day of his death, without (luestion, or 
 claim on the i»art of the defendant, who now 
 sets up an adverse right. On a bill filed by 
 some of the legatees against the defendant, 
 George H. Tucker, (who was both legatee and 
 executor.) and against the other legatees, for 
 a partition of the e.state. the said executor, 
 in his answer, denietl that these two negroes 
 were the property of his testator, and a.ssert- 
 ed a title in himself. The presiding Chan- 
 cellor ruled, that the answer of the executor 
 was not admissible as evidence, in supiwrt 
 of his claim to the negroes. And this Court 
 is of the opinion, that the Chancellor was 
 right. 
 
 When a testator or intestate has died in 
 the possession of personal property, and that 
 fact is alleged after the usual form in a bill 
 for partition or account, against the executor 
 or administrator, the answer of the latter 
 
 ♦155 
 cannot be received as evidence. In ♦support 
 of a title adverse to that of the testator, or 
 intestate. But, the executor or administrator 
 asserting such claim, must prm-eed to suppc>rt 
 it by the same evidence, as If he were the 
 actor in the proceedings. 
 
 What was the particular form of the plain- 
 tiffs' allegations in this case, has not been 
 satisfactorily shown. The brief sets forth 
 only fragmentary portions of the i)leading.s. 
 It is assumed, that the bill contained the 
 usual statements of bills for partition and 
 account, under the like circumstances. 
 
 The appeal is dismissed, and the Circuit 
 decree" athrnied. 
 
 JOHNSTON. DUNKIN, and WARDLAW, 
 CC, concurred. 
 Appeal dismissed. 
 
 61
 
 n55 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 5 Rich. Eq. 155 
 
 ROBERT MOFFATT, Adm'r v. A. W. 
 THOMSON. 
 
 (Columbia. Nov. and Dec. Term, 1852.) 
 
 [Partnership <g=189.] 
 
 Wliere one partner dies insolvent, and is. at 
 the time of his death, indebted, individually, 
 to the surviving partner, individuall.v, and the 
 surviving partner afterwards collects funds of 
 the partnership, he cannot apply the share of 
 the deceased partner to the individual debt due 
 to himself — such share must be paid to the rcp- 
 resentati.'e of the deceased partner, to be ap- 
 plied to his debts, as directed bv the Act of 
 1789. 
 
 [Ed. Note. — For other cases, see Partnership, 
 Cent. Dig. § 343; Dec. Dig. <©=>189.] 
 
 [Partnership <g=>24.5.1 
 
 A surviving partner is entitled to take and 
 hold as survivor, for the purpose of administer- 
 ing the co-partnership estate, but after the ef- 
 fects have been reduced to money, and the debts 
 of the co-partnership paid, the share of the de- 
 ceased partner constitutes assets, and belongs 
 to his representative. 
 
 [Ed. Note.— Cited in Wiesenfeld. Stern & Co. 
 V. Byrd, 17 S. C. 114. 
 
 For f)ther oases, see Partnership, Cent. Dig. 
 §§ .514-518: Dec. Dig. <©=:5245.] 
 
 [Partnership <S=>89.] 
 
 Though each partner has a lien upon the 
 co-partnership effects for a debt due him liy 
 the co-partnership ; yet, for a private debt, the 
 survivor has no lien upon the share of the de- 
 ceased partner. 
 
 [Ed. Note. — For other cases, see Partnership, 
 Cent. Dig. § 137; Dec. Dig. <S=89.] 
 
 Before Wardlaw, Ch., at Union, June, 1851. 
 
 Wardlaw, Ch. This is a bill filed by the 
 plaintiff, as administrator of Lewis Bowers, 
 against the defendant, as surviving partner, 
 for an account of the assets of the partner- 
 
 *156 
 ship of Thom*son & Bowers, as attorneys and 
 solicitors. The partnership was formed in 
 the beginning of the year 1841, and continu- 
 ed until October, 1844, wlien it was dissolved 
 by the death of Bowers. There was no writ- 
 ten agreement between the parties, as to the 
 terms of the partnership; but, according to 
 the proof, Thomson was to furnish the office 
 and books, and defray the incidental ex- 
 penses of the office; and the profits of the 
 practice were to be divided between them in 
 the proportion of one-third of the tax costs, 
 and one-quarter of the counsel and other fees 
 to Bowers, and the rest to Thomson. By 
 contract between them, but not as an inte- 
 gral part of the partnership arrangement, 
 Bowers was to board with Thomson, and be 
 furnished with food, chamber, fuel, lights 
 and washing, at the price then customary in 
 the village of Union; and he did so board 
 from January 13, 1841, until his death, be- 
 ing absent only two or three weeks ; and 
 he was charged, and the charge was proved 
 to be moderate, at the rate of $137 a year. 
 No portion of this debt, except $24 for wash- 
 ing, was paid by Bowers in his lifetime; nor 
 was there ever an account stated between the 
 
 partners. Both, however, at various times, 
 during the existence of the partnershii), re- 
 ceived sums of money on account of the jiart- 
 nership, and at Bowers's death, Thomson had 
 thus received money, in excess of his share 
 of the profits, suHlcient, or nearly sutticient, 
 to pay his demand for board, if he be enti- 
 tled to make such application of what was 
 then in his hands belonging to Bowers. In 
 the answer of Thomson, it is stated that Bow- 
 ers directed him to draw from the sheriff's 
 office the fees due to him. Bowers, and there- 
 with pay himself, Thomson. But this state- 
 ment is not responsive to the allegations of 
 the bill, and is not otherwise proved. The 
 estate of Bowers is insutficient to pay the 
 debts in full, and the administrator, in behalf 
 of other creditors, insists that Thomson is en- 
 titled to retain, for his debt, ratably with 
 other creditors, and no more. The Commis- 
 sioner sustains the view of the administrator, 
 and the matter comes before me on excep- 
 tions to the Commissioner's report. 
 *157 
 
 *As to the private debt of Bowers to 
 Thomson, not connected with the partner- 
 ship, Thomson seems to occupy the position 
 of any other creditor of Bowers. For all 
 sums received by him, as surviving partner, 
 he must account to the administrator ; aud 
 as to these, his equity, after the settlement 
 of the partnership debts, if any, is not supe- 
 rior to that of any other creditor of Bowers 
 individually. But Thomson, as any other 
 creditor of Bowers, has the Might to apply 
 any sum received on account of Bowers, in 
 Bowers' life time, to the extinguishment of 
 the debt owed to him by Bowers. The bal- 
 ance of the indebtedness on one side or the 
 other, at Bowers's death, is to be ascertained 
 by collating the debts at that time, of each 
 to the other, and subtracting the gross 
 amount of the smaller from the larger debts 
 of the parties, respectively. The state of in- 
 debtedness existing at the death of the intes- 
 tate cannot be clianged injuriously to the 
 creditors of the intestate generally, by a sub- 
 sequent contract, such as the purchase of a 
 note of intestate, or receiving money from 
 his debtor. These views result from the con- 
 struction which has been given to our dis- 
 count law, (Mayhew v. Flake, 2 N. & McC, 
 398; Happoldt v. Jones, Haip. 109,) and 
 they might be deduced from the superior lieu, 
 and rights of a creditor in possession. I am 
 of opinion that the defendant is entitled to 
 set-off his debt, upon the intestate, against 
 any liability he incurred, from receiving 
 the money of the intestate in his life time, 
 and the Commissioner is ordered to amend 
 his report accordingly. 
 
 The frame of the bill in this case is imper- 
 fect; there is no allegation of the insolvency, 
 or even the indebtedness of the estate of the 
 intestate; and defendant might treat this 
 suit as having all the incidents, and among 
 
 62 
 
 ®=»For other cases see same topic and KEY- NUMBER in all Key-Numbered Digests and Indexes
 
 MOFFATT V. THOMSON 
 
 460 
 
 them the doctrine of discount, wliicli woukl 
 belong to a suit of Bowers ajiainst tin* present 
 defendant. But I understand all objection, 
 on this score, to be waived. 
 
 Other exceptions were tiled; including 
 slij,'ht mistakes, principally clerical, to the 
 
 ♦158 
 report, but these were not argued, and ♦seem- 
 ed to be abaiiddned by counsel. These mis- 
 takes of fact should Im' c()rrected. 
 
 It is ordered and decreed that tlie Commis- 
 sioner's report be re-coiuniitted for correction, 
 according to the opinions herein ex|tressed. 
 Costs to be paid out of estate of intestate. 
 
 At June Sittings. 18.>L', the case again came 
 up, on the report of the Connnissioner, before 
 his Honor, Chancellor .Tohn.ston, who made 
 the following decree. 
 
 Johnston. Ch. On hearing the n']i(>rl of 
 the Commissioner in this case, dated Hth 
 June, ISO:.', and the exceptions tiled by the 
 defendant thereto: Ordered, that the excep- 
 tions be overruled, and that tiie Commission- 
 er's rei)ort be confirmed, and In'come a decree 
 of this Court. 
 
 The defendant api)ealed from both decrees, 
 on the ground : 
 
 Becau.se the defendant had a good and 
 equitable right to retain for the debt due to 
 him from his partner, as the case is not like 
 that of an executor or administrator, whose 
 rights are fixed by statute in this State, and 
 our discount law applies to this case. 
 
 Jeter, for appellant. 
 Dawkins, contra. 
 
 The opinion of the Court was delivered by 
 
 DI'XIvIN, Ch. The ground of appeal in- 
 volves the inquiry, whether the surviving 
 co-partner can set-off a i)rivate debt due to 
 him by his deceased partner, against his 
 share of assets collected since the dissolution 
 of the co-partnership. The Chancellor has 
 directed, that for any balance due the deceas- 
 ed at the dissolution, the survivor is entitled 
 to discount; but that the rights of the parties 
 were fixed at the death of the intestate, 
 and cannot be varied by subsequent transac- 
 tions. This general principle has been re- 
 peatedly recognized, and can scarcely be 
 regarded as open for di.scussion. In the re- 
 cent case of Morton & Courtnay v. Caldwell, 
 
 *159 
 (.'5 Strob. E(i. Kil.l the Court, in ♦( (Munu'nting 
 uiton the statute of 17s<), remark, that "while 
 this statute abolishes preferences among cred- 
 itors of e(|ual rank, and virtually entitles 
 each creditor, in ca.se of deficient ass«'ts, to 
 a claim on the estate of the deceased debtor, 
 proportioned to his demand, it d(H>s not, in 
 tenus, settle any point of time, in reference 
 to which the resi)ective demands nnist be 
 cxamiiied. in order to determine the relative 
 proportion of assets liable to their payment." 
 "But that .still it is a fundamental idea in 
 the statute — a disregard of which must ren- 
 
 der its due administration intolerably per- 
 plexing, if not impracticable — that the junc- 
 tur*', for the purpose of .«<uch a calculation, 
 is the death of the debtor. It is tlien the 
 remedy of tue creditor ceases as to the per- 
 son, and is restricted to tlie effects of the 
 party indebted." So far is the principle car- 
 ried, that, if a creditor afterwards receives 
 ")<) per cent of his debt from a third imrty, he 
 is entitled to recover the balance from the 
 as.sets of the intestate, according to the pro- 
 portion assigned to his original <lebt. On tlie 
 other hand, the amount of a.s.sets for dis- 
 tribution cannot be diminislied by any .subse- 
 •pient arrangement, or management, of an 
 unsatisfied creditor. Thus, in llai)piddt v. 
 .lones. Harp. 10!». a debtor of the intestate at- 
 tempted to set-off a note of the intestate to 
 a third person, which had been transferred 
 to the defen<lant since the intestate's decease. 
 The Court say, "the Act expressly provides 
 that no preference shall be given to creditors 
 in e(iual degree. The debt due by the defend- 
 ant, was assets. The effect of allowing the 
 whole amount of the discount, is the payment 
 of that entire demand, in exclusion of others, 
 and is in direct opposition to the provisions 
 of the Act." 
 
 At the death of the intestate. Bowers, he 
 was indebte<l. individually, to the defendant, 
 Thomson, individually, in a ceitiiin amount. 
 For the balance, as it tluis stood, the de- 
 fendant was entitled to this proportion of the 
 assets of the intestate. But in tlie eour.se 
 of the adn)iiustration, it appeared timt. sulv 
 seqnent to the death of the intestate, funds 
 of the co-partnershii) of Thom.son and Bow- 
 ers had been collected, after the dissolution, 
 by the surviving copartner. The position 
 *160 
 
 assumed, is. that *Thomson is entitled to ap- 
 propriate the share of the intestate in these 
 funds to the extinguishment, in full, of the 
 debt due by the intestate, individually, to 
 the defendant, individually. If the intes- 
 tate's proportion of this fund constituti-d as- 
 sets, the position is untenable, unless the 
 defendant's condition, as surviving partner, 
 gave him a preference over the other in- 
 dividual creditors of the intestate. Both 
 will be considered. The priniiple is as old. at 
 loiist, as the time of Lord Coke, that co- 
 partners constitute an exception to tlu' rule 
 as to the jus acrre.s.sendi amongst joint ten- 
 ants. Co. Litt. isii. a. Tliouuh they are 
 joint tenants of all the partnership stock 
 during their lives, there is no survivorship 
 either at law or in e<iuity. Story on I'art. § 
 90. It follows that, upon the decease of one 
 of several partners, his sh;ire of the stock 
 and effects of the partni'rsbip. subject to the 
 partnership debts, devolves to his personal 
 representatives, who thereupon become, both 
 at law and in equity, tenants in connnon 
 with the surviving partner. Such is the 
 doctrine of Kent, of Story, and indeed of 
 
 63
 
 *160 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 every elementaryl writer on the subject. 
 But, as on the decease of one of the partners, 
 the surviving partner stands chargeable with 
 the whole of the partnership debts, he is au- 
 thorized to take and hold as survivor, for the 
 puiTOse of administering the co-partnership 
 estate, until the effects are reduced to money, 
 and the debts are paid. When this is done, 
 the surviving partner shall be held to ac- 
 count with the representatives of the deceas- 
 ed, for his just share of the partnership 
 funds. Collyer on Part. § 129. It is very 
 difficult to make these principles more clear. 
 On the death of one of the partners, his 
 share in the concern constitutes assets, sub- 
 ject only to the charge of co-partnership 
 debts. No other debt, except a debt due by 
 the co-partnership, lias any preference in re- 
 lation to the share of tlie intestate in these 
 funds. The lien which a partner has, is 
 equally well settled and distinctly limited. 
 Each has a specific lien on the partnership 
 stock and effects for moneys advanced by him 
 for the use of the co-partnership, beyond his 
 proportion, and for moneys abstracted by his 
 co-pajlner, fi-om the co-partnership funds, 
 
 *161 
 
 beyond the amount of his share. In*deed, 
 as declared by Lord Hardwicke, nothing can 
 be considered as the share of a partner, but 
 his proportion of the residue, after an ac- 
 count has been taken of what has been paid 
 or advanced, by each partner, in the partner- 
 ship transactions. The result is, that, ac- 
 cording to acknowledged principles, upon the 
 dissolution of a co-partnership by the death 
 of one of the partners, the sui-vivor has, as 
 such, no rights, either in law or equity, ex- 
 cept for the collection of co-partnership as- 
 sets, and the payment of copartnership debts. 
 That done, he is bound to pay to the repre- 
 sentative of the deceased partner his share 
 of the fund, which is liable for distribution 
 among his creditors upon the principles pre- 
 scribed by law. The partners are declared 
 to have no specific lien except for the pur- 
 pose of securing, or re-imbursing themselves, 
 for advances made on account of the co- 
 partnership. The survivor has no other lien 
 over the share of his deceased partner. It is 
 not pretended that the debt of the intestate 
 was due to the firm or co-partnership. It 
 was an individual transaction with the de- 
 fendant. Assuming that the other co-part- 
 nership affairs were closed prior to the in- 
 testate's death, the case may be thus simpli- 
 fied. Suppose that, on the decease of the 
 intestate, insolvent, he owed the defendant 
 a private debt of one hundred and fifty dol- 
 lars, and that in his possession the adminis- 
 trator found a note due to the co-partnership 
 by a third person, of five hundred dollars. As 
 he was bound by law to do, the administrator 
 delivers this note to the defendant, the sur- 
 viving partner, who collects the money, and 
 
 then insists on retaining one hundred and 
 fifty dollars from the share of the intestate, 
 in payment of the private debt due to him. 
 If there be any reliance on the principles 
 stated, the administrator had an equal nght 
 with the defendant, both in law and equity, 
 to this fund. For convenience, as well as 
 for other reasons before stated, the surviving 
 partner is authorized to collect the note. 
 That done, and the debts due by the co- 
 partnership paid, he is bound, in the lan- 
 guage of the authorities, to pay over to the 
 legal representative of the deceased, his just 
 share of the partnership funds. He has no 
 lien upon it for his private debt. His Uen, 
 
 *162 
 *by the authorities, is limited to advances 
 for co-partnership purposes. Upon what 
 principle then, or upon what authority, can 
 he claim to appropriate the share of the 
 intestate to the extinguishment of his private 
 debt, and thus obtain a preference over other 
 private creditors, and disturb the due dourse 
 of administration? The authorities, from 
 Lord Coke down, declare that the surviving 
 co-partner and the representative of the de- 
 ceased partner, are to be regarded as tenants 
 in common of the co-partnership effects. If 
 there were three negroes belonging to the 
 firm, and the debts paid, could the defendant 
 resist the claim of the administrator for par- 
 tition on account of a private demand which 
 he had against the intestate? Or, if there 
 were a sale for partition, would his open ac- 
 count exclude the specialty creditors of the 
 intestate? It is believed that no tenant in 
 common, although in exclusive possession of 
 the common property, has ever been sustain- 
 ed in such a pretension. Upon the whole, 
 the Court is of opinion that the judgment of 
 the Chancellor is sustained by established 
 principles, and the appeal is dismissed. 
 
 DARGAN and WARDLAW, CO., con- 
 curred. 
 
 Appeal dismissed. 
 
 5 Rich. Eq. 162 
 
 JOHN McLURB v. ELIZABETH ASKEW, 
 
 Executrix, and Others. 
 
 (Columbia. Nov. anl Dec. Term, 1852.) 
 
 [Witnesses <^=^107.'\ 
 
 Bill to subject legacies assented to, and land, 
 sold under a power conferred by the will to 
 raise a fund to satisfy pecuniary legacies, to 
 plaintiff's debt against the testator: the execu- 
 trix had retained sufficient assets to pay the 
 debt, but had wasted them, and was insolvent; 
 and some eight years before the bill was filed, 
 the plaintiff had taken the note of the executrix 
 in payment of the debt: — Held, that the execu- 
 trix, who was a party defendant to the bill, was 
 a competent witness for her co-defendants ; and 
 that plaintiff had no equity to subject the lega- 
 cies and the land to his debt. 
 
 [Ed. Note. — For other oases, see Witnesses, 
 Cent. Dig. § 265: Dec. Dig. <S=107.] 
 
 64 
 
 ©=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 McLURE V. ASKEW 
 
 *165 
 
 •163 
 
 [Payment <S==>18.] 
 
 *A croditor of tostatur takinjj tht> noto of 
 the executrix for the dobt, hrhl. upon tlic evi- 
 dence, tf> have taivcn it as paviiitnt ami dis- 
 charged the estate of the testator. 
 
 [Ed. Note.— Cited in Ad;.'er & Co. v. PrinRle. 
 11 S. C. 548; Ex parte Williams. 17 S. C. 
 40o. 
 
 For other oases, see Pavment, Cent. Die. 
 § 78; Dec. Dig. <S=>1S.] 
 
 [Executorfi and AthninistratoiK e=>.'?18.1 
 
 An executrix who has retain. 'd siillicient as- 
 sets to pay debts and le-ji.ies. ;ui(l has wasted 
 them, cannot sustain a l>ill auain.st the paid 
 legatees to compel them to refund. 
 
 fEd. Note. — For other cases, see Executors 
 and Administrators. Cent Dis SS i;{ll)-i:;''(! 
 1328-1331; Doc. Dijr. «s=5;]is.i 
 
 [Executors and Administrators <@=>318.] 
 
 The principles upon wliich oxeoiitors, and 
 unsatisfied legatees, may sustain hills to com- 
 pel satisfied legatees to refund, examined. 
 
 [Ed. Note.— For other ca.ses, see Executors 
 and Administrators, Cent. Dig. § 1322; Dec 
 Dig. (©=5.'ilS.] 
 
 [Wills <©=3832.] 
 
 The right of a creditor of the testator to 
 
 follow legacies assented to, is a mere equity 
 
 and should not be enforced iueguitably. ' 
 
 [Ed. Note.— For other cases, see Wills Cent. 
 
 Dig. § 2141 ; Dec. Dig. <g=s32.] 
 
 Thi.s cause was heard at Union. June, 1852, 
 l)efore Johnston, Ch., who made the follow- 
 ing decree: 
 
 Johnston, Ch. From the pleadings and the 
 proof taken before the Commissioner, and 
 the evidence taken at the hearing, and ap- 
 pearing on my notes, which fully disclose 
 the case, I shall extract only so much as will 
 serve to explain the judgment I am about 
 to render. 
 
 This is a case in which a creditor seeks 
 payment from the estate of his debtor, out 
 of assets delivered over by the executors, 
 and in the hands of the legatees. 
 
 The debtor in this case was the late Dr. 
 A.skew. At the time of his death, which 
 happened the 18th of January, 1841, he was 
 indebted to the plauitiff. McLure, as the bill 
 states, by sealed note, dated about the 4th 
 of March, 1840, in the .sum of $410.5()i4, with 
 interest from the 1st January, 1840, (sub- 
 ject to a credit of ."j;(!0, paid on it the 21st 
 December, 1841.) and also in the further sum 
 of $20.2614, upon open account. 
 
 Dr. Askew left a will, of which the de- 
 fendants, Elizabeth Askew and W. T. Cren- 
 shaw, were executors. 
 
 Mrs. Askew, the executrix, who was the 
 widow of Dr. Askew, on the ."Ist of Decem- 
 ber, 1842, took up the open account by her 
 own note; and then, on the 22d of January, 
 1844, took up that note and the note of her 
 testator, by giving the plaintiff her sealed 
 note of that date, in her unollicial character, 
 for $474. .>4, payable at one day. 
 
 A number of judgment.s, dating from the 
 20th Februar.v. lS4!t. to sonic time in April, 
 
 1849, and amounting in all to near $1300, 
 was obtained against Mrs. Askew for her 
 
 ♦164 
 private debts; *under which her property 
 was sold out by the sheriff for $1120.30; 
 leaving her hi.solvent for the balance of those 
 judgments. 
 
 On the 24th of February, which was but 
 a few days after the first of these judg- 
 ments was obtained. McLure brought suit 
 upon his note: but hi 18.->l, his c(mn.sel 
 dropiied the proceeding, and returned the 
 note to him; and on the 2d .March, 1852, 
 he filed this bill. 
 
 The bill alleges, and it is proved, that both 
 the executrix and executor are lns<»lvent; 
 and, having no relief against them, the plain- 
 tiff contends that he has an e<iultable right 
 to recover his demand against the estate 
 of his original debtor, and to have satis- 
 faction out of a.ssets delivered to legatees 
 under the will. 
 
 For the understanding of this matter, it 
 is necessary to state some of the provisions 
 of Dr. Askew's will. 
 
 He left, besides his widow, three .sons, 
 Fleury S. D. Askew, James M. Askew, Wm. 
 N. A.skew, and four daughters, Charlotte, 
 (wife of Henry Anderson.) l^unice, (wife of 
 Newton Anderson.) Jemima, (wife of W. P. 
 Anderson,) and Sarah, (wife of the defend- 
 ant, W. T. Crenshaw.) 
 
 By his will, duly executed 20th of De- 
 cember, 1837, he directs, that, for payment 
 of his debts, his executors should sell so 
 much of his plantation stock as his wife 
 might think she could conveniently .spare — 
 and if that should not suffice for the punuise. 
 then that they should sell so much of his 
 land as should be required. 
 
 He then devised "all his lands, remain- 
 ing after the payment of his debts," to his 
 wife— on her death to be .sold, and the pro- 
 ceeds equally divided among his seven chil- 
 dren. 
 
 He bequeathed her, for life, six negroes, 
 Nathan, Abby. Scilla, Mary, Beekj', and 
 Maria, with the power to appoint any three 
 of them, by will, at her pleasure, among his 
 children ; and such as she should not ap- 
 point, to 1h' divided, with the increase, ecpial- 
 ly, between his two daughters, Charlotte and 
 Jemima, and his sou, Henry S. D. Askew. 
 *165 
 ♦He bequeathed, also, to his wife, abso- 
 lutely, all his farming utensils, all his house 
 and kitchen furniture and utensils, and so 
 much of his plantation stock as she might not 
 wish .sold for the payment of his debts. 
 
 He be<|ue:ithed to his daughter Jemima, 
 ab.solutely, three negroes, Huldah. Evelin', 
 and Manda ; and $2(H), to be paid on her 
 marriage, or attaining majority; to be rais- 
 ed by a sale of land ; with {lower to the ex- 
 ecutors to make the sale. 
 
 To his son, Henry S. D. Askew, he gave 
 
 «=»Kor otlier cases see same topic and KEY-NL'MBEU in all Key-Numbered Digests and IndexM 
 «> JKicii.Ey. — a 
 
 65
 
 465 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 two negroes, Matilda and David, absolutely; 
 and $200, to be paid at his majority; to 
 be raised by sale of land, &c. 
 
 There are various other legacies to his 
 children, not necessary to be noticed. 
 
 By a codicil executed the 14th of January, 
 1841, the testator, reciting the power he had 
 given his executors, to sell lands for the 
 payment of debts, declares, "as I have since 
 sold the land thereby intended to be sold, 
 I hereby revoke that clause in my said will." 
 He makes some other alterations, not neces- 
 sary to be stated. 
 
 All the legacies have been long ago assent- 
 ed to, and delivered — the last of them (ex- 
 cept as I shall hereinafter state.) more than 
 eight years ago — and the legatees, with the 
 exception of Henry S. D. and James M. 
 Askew, are without the State, and have no 
 personal property in this jurisdiction. 
 
 It might have been stated, that, on the 8th 
 of May, 1849, the executors, for the purpose 
 of raising the .$200, payable to Jemima on 
 her marriage, (which had taken place,) and 
 the $200 payable to Henry S. D. at his ma- 
 jority, (which occurred the 10th of January, 
 1847,) sold and conveyed to the said Henry S. 
 D., and to Wm. P. Anderson, at the price 
 of $901.50, a small body of land, described 
 in the pleadings. 
 
 The effort is to subject this land, and the 
 negroes in the hands of these legatees, to 
 the payment of the debt fomuerly held by the 
 plaintiff against the testator. 
 
 The conveyance of the laud might be sus- 
 pected of being colorable; but there is no 
 
 *166 
 
 such charge in the bill. The ground *taken 
 is, that the debt of the testator still equi- 
 tably subsists against the land, irrespective 
 of the fraudulency or fairness of the con- 
 veyance. 
 
 But the first question is, whether the plain- 
 tiff is a creditor of the testator, as he as- 
 sumes in his bill. That he held demands 
 against him at his death, is admitted. But 
 these demands were surrendered to the ex- 
 ecutrix, upon the consideration that she 
 should substitute her personal note for the 
 amount. Whether this substituted note was 
 a payment of the demands against the tes- 
 tator, depends, in my opinion, upon the in- 
 tention of the parties. That is payment, 
 which is intended as payment. 
 
 The evidence is, that "the estate was to 
 be freed from debt, and the liability of the 
 executrix substituted in place of that of the 
 estate." "The plaiutifC proposed to the ex- 
 ecutrix to take up the estate note, t&c, and 
 give her own individual note." "The execu- 
 trix asked him, after she took them up, what 
 she should do with them, and he said she 
 might take them home, tear them up, burn 
 them, or do what she pleased with them, 
 and slie tore the name off in liis presence." 
 
 The estate, in my opinion, was, (accord- 
 ing to this evidence,) intentionally discharg- 
 es 
 
 ed.fa) If the plaintiff has any equities upon 
 the estate, they are not equities belonging to 
 him as a creditor of the estate — he is simply 
 a creditor of Mrs. Askew ; and if she be- 
 ing executrix, has any equitable right to sub- 
 ject the assets in the hands of the legatees, 
 the plaintiff may, perhaps, as her creditor, 
 insist on that equitable right in her name. 
 
 Then, taking the executrix's riglit to be 
 the measure of the plaintiff's, the inquiry is, 
 could the executrix maintain this bill for 
 the purposes indicated in it? 
 
 "It is the rule in Equity," says Mr. Roper, 
 (1 Rop. Leg. 408, 2d Lon. edit., chap 9. 
 Abatement and refunding of legacies,) "to 
 presume that where an executor pays over a 
 legacy, he has possessed assets sufficient to 
 *167 
 
 pay all the legacies; and although *the fact 
 may not be so, yet not to admit proof to 
 the contrary. Therefore, in such oases, exec- 
 utors will be obliged to make up the deficien- 
 cy out of their own money, as the Court will 
 not permit them to institute suits against 
 the legatees, whom they have voluntarily 
 paid, to oblige them to refund." 
 
 It has been sometimes supposed, that a 
 distinction obtains between legacies volun- 
 tarily paid or assented to by executors, and 
 payments of legacies to which the executor 
 is enforced in invitum by the judgment of 
 a Court : and it has been suggested, that, 
 in the latter case, the executor is better en- 
 titled than in the former to recoup, in case of 
 insufficiency of assets to meet creditors or 
 other legatees. To this point Mr. Roper 
 quotes Newman \. Barton, Grove v. Bauson, 
 and Hodges v. Waddington, (lb. 400.) I think, 
 however, that this distinction must be doubt- 
 ful. It would seem, upon principle, that the 
 recovery against the executor, must be re- 
 garded as res judicata against him, and con- 
 clusive of every defence which it was in his 
 power to set up in that suit ; as certainly an 
 insufficiency of assets, — if that were then 
 known to him, — would have been. The more 
 I'easonable doctrine would seem to be that of 
 Nelthorpe v. Biscoe, (1 Chan. Ca., 135,) 
 where, without reference to any distinction 
 between payments made voluntarily, or, in 
 invitum, it was said, and admitted by the 
 Court, that if executors pay away assets in 
 legacies, and afterwards debts appear, and 
 they be obliged to pay them, of which debts 
 they had no notice before the legacies were 
 paid, the executors, by a bill, might compel 
 the legatees to refund. 
 
 When one legatee has been paid in full, 
 while other legatees of equal grade remain 
 unsatisfied, these latter legatees have, in gen- 
 eral, no right to compel the former to abate 
 or refund, but must go against the executor, 
 
 (a) Vide Eraser v. Hext, (2 Strob. Eq. 257 ;)" 
 Dogan V. Ashbey, (1 Rich. 36;) Chastain v. 
 Johnson, (2 Bail. 574:) Thorntou v. Payne, (5 
 Johns. R. 74 ;) Douglas v. Eraser. (2 McC. Eq. 
 106 ;) and Wardlaw v. Gray, (2 Hill. Eq, 644.)
 
 McLURE V. ASKEW 
 
 ♦170 
 
 unless it can be shewn, that there was an 
 orj^jinal deficiency of assets to meet the lega- 
 cies reniaiiiinf; unsatisfied. In that case, a 
 refundinf.' will lie decreed, so as to put ail the 
 legatees iiiton their proper footing, in regard 
 to the actual assets. But. if, at tlie time tliat 
 one legatee was paid, the «'Xecutor retained 
 enough to pay the other, though the ex- 
 
 *168 
 *ecutor wasted tlmsc latter funds, the unsat- 
 isfieil legatees are not iMitltled to any tlung 
 from the paid legatee, wlio lias obtained no 
 more tiian his due. lie is no surety for the 
 ♦'xecutor's adnunistration. And if, after he 
 had received his own legacy, he liad filed a 
 hill to prevent the executor from wasting tlie 
 residue in his hands, his Itill W(»uld have 
 iieen dismissed as impertinent; .so tiiat he 
 has no power to regulate the after conduct 
 of tlie executor in such a case, and should 
 not he responsil)le for it. 
 
 Even upon this princiiile. l)etween legatee 
 and legatee, (if the executrix in the jire.sent 
 ca.se can claim its benefit,) slie can have no 
 
 < laim against the legacies to which .she has 
 assented. It is in evidence that she n'tained 
 enough to pay all demands against the es- 
 tate; and if she has wasted what she thus 
 retained, her own misconduct, in this respect, 
 is the wor.st reason she could possii)ly urge 
 for a decree against the legatees. 
 
 Then, again, in relation to the land con- 
 veyed, in order to raise the pecuniary lega- 
 cies paid to the two younger children, — there 
 was no deficii'iicy of power under the will. 
 If there was. it is for those entitled to the 
 land, to make the complaint. Tlie executrix 
 could not disafiirm her own act, if she de- 
 sired to do so. 
 
 It remains only to state that the plaintiff 
 is, himself, perhaps, responsible for, at least, 
 a large part of the debt, the payment of 
 wliich he claims out of others. 
 
 The projierty given to the widow under the 
 will, is charged with payment <tf debts. She 
 was chargeable with the del)ts in respect to 
 tins prf»perty. Could she have claimed credit 
 for the notes she took up against the other 
 legatees? 
 
 At the sale of her property l»y the sheriff, 
 iM< hiding that given to her under the will, 
 tiie plaintiff pnrchased .several valual)le i)ar- 
 
 < els of it. at api^arently under-value. He 
 lioJds that property in tlie right of the 
 widow ; and if his debt were now chargeable 
 to tlie I'state, must not that proiierty be first 
 <'xliaustedV 
 
 There still remains one other consldera- 
 tinii. If the plaintitT were still entitled in 
 I'.ipiity to be regarded as a creditor of the 
 estate, after taking another security, the es- 
 
 ♦169 
 fate's assets became, 'as to him. the .secon- 
 dary security, and he diseliarged it by his 
 laches in regard to the primary security. 
 After the executrix gave him her note, it is 
 in evidence that she went to him three years 
 
 . in .succv.ssion, and offered to sell property to 
 him — and he replied, "oh, no : hold on. this 
 is not a good time to .sell property. Hold 
 (m. I will never distress you." His right to 
 go against the legatees is a mere e<iuity, and 
 should not be enforced iniMpiitably. (IMc- 
 Mullin V. Hrownl l' Hill E.i. 4<!l'.) 
 
 It is ordered that the bill in* dismissed. 
 The rom|ilaiiiant appealed, upon the 
 grounds: 
 
 1. lU*cause the acceptance of tht> sealed 
 note of the ext'cutrix, by the plaintiff, was no 
 dis(harg<> of the estate of lier testator, and 
 Was not intended to lie .so. the executrix never 
 having charged the estate with the payment 
 of tile same. 
 
 2. Because the land conveyed to H. S. D. 
 Askew and W. P. .Vndersoii. should have 
 been decreed liable to plaintiff's demand. 
 
 3. Becaus.' the negroes devl.sed to the exec- 
 utrix should have been decreed liable to 
 plaintiff's demand. 
 
 4. Because the Court .should have decreed 
 against the executor and executrix, so as 
 to make any assets which mijj:ht hereafter 
 come into their hands, lialile to the payment 
 of plaintiff's demand.* /<i 
 
 ij. Because the plaintiff was entitled to a 
 reference to ascertain the fact whether, when 
 the specific legacies were delivered over, the 
 executrix retained sulhcleut assets to satisfy 
 plaintiff's demand. 
 
 G. Because . Elizabeth Askew was au in- 
 competent witness, 
 
 Dawkins, for appellant. 
 Ilerndon, contra. 
 
 The opinion of the Court was delivered by 
 
 JOHXSTOX, Ch. This Court has consid- 
 ered all the grounds of appeal, and is entire^ 
 
 ♦170 
 ly satisfied with the decree: and it is ♦deem- 
 ed unnecessary to add anything to the ob- 
 servations of the Chancellor, except upon the 
 sixth ground, in respect to which he has 
 .said ni>thing in his decree. 
 
 If the plaintitT. upon the case made iu 
 the hill, and witli the parties who were be- 
 fore the Court, had been entitled to a de<ree 
 against the estate. — binding against Mrs. 
 Askew, as executrix, — her interest.s, as be- 
 tween that liability atid her liability on the 
 note she had given to the plaintiff, would have 
 lieen eipially balanced. A .satisfaction of ei- 
 ther demand, would he a discharge of the 
 other: and it was immaterial to her which 
 of them she was made liable for. 
 
 The evidence she gave, to protect the lega- 
 cies in the hands of the legiitees from liability 
 to i)ay her note to the plaintiff, or whatever 
 demand he might have against her as ex- 
 ecutrix, was certainly evidence against her 
 
 {b) No .such claim sot up in tlio Idll, nor made 
 at the ln'aring. The bill alleged that all the 
 assets wore exhausted, except that delivered to 
 tbo legatees, 
 
 67
 
 *170 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 interest; which was to discharge her own 
 liabilities out of those legacies. 
 
 It is ordered, that the decree be affirmed, 
 and the appeal dismissed. 
 
 DUNKIN, DARGAN and TV^ARDLAW, CC, 
 
 concurred. 
 Appeal dismissed. 
 
 5 Rich. Eq. 170 
 
 MATILDA POAG and Others v. C. P. SAND- 
 IFER, and Others. 
 
 (Columbia. Nov. and Dec. Term, 1852.) 
 
 [Frauds. Statute of <®=3l52.] 
 
 To a bill to enforce an agreement in rela- 
 tion to land, if the defendant deny the agree- 
 ment in his answer, he need not plead the stat- 
 ute of frauds. 
 
 [Ed. Note.— Cited in Hubbell v. Courtney, 5 
 S. C. 90: Groce v. Jenkins, 28 S. C. 175. 5 
 S. E. 352; Suber v. Richards. 61 S. C. 398, 
 403, 39 S. E. 540. 
 
 For other cases, see Frauds, Statute of, Cent. 
 Dig. § 371; Dec. Dig. ®=5l52.] 
 
 [Frauds. Statute of (&=3l29.] 
 
 The mere retention of a pre-existing posses- 
 sion, will not take a case out of the statute of 
 frauds. 
 
 [Ed. Note. — Cited in Boozer v. Teague, 27 S. 
 C. 357, 363, 8 S. E. 551 : Charles v. Byrd, 29 
 S. C. 559, 8 S. E. 1: McMillan v. McMillan, 
 77 S. C. 515, 58 S. E. 431. 
 
 For other cases, see Frauds, Statute of. Cent. 
 Dig. § 308 ; Dec. Dig. <S=»129.] 
 
 This cause was first heard before Ward- 
 law, Ch., at York, June Sittings, 1851, who 
 made the following decree: 
 *171 
 
 *Wardlaw, Ch. As I have formed the opin- 
 ion that all proper parties are not before the 
 Court, I shall state so much only of the case 
 as involves that point. 
 
 In 1819, John Carroll obtained from the 
 Catawba Indians, a lease for ninety-nine 
 j-ears, of a tract of laud, including sixty 
 acres the subject of this suit, within the In- 
 dian boundary of York District. He died in 
 May, 1837, having devised this land to Minor 
 Carroll. In 1841, Minor Carroll took a grant 
 of the land from the State. He died intestate 
 in May, 1844, and in 1845, this land was sold 
 under proceedings in this Court for partition, 
 and purchased by C. P. Sandifer, who has not 
 yet paid the whole of the purchase money. 
 
 The claim of the plaintiffs is, that an un- 
 divided portion of the sixty acres of this land 
 were held by John Carroll, from 1819 anterior 
 to his lease under a parol trust for his sister 
 Jane Gallagher. She died in May, 1832, leav- 
 ing of force, a will, which contained no ex- 
 press mention of this land, whereof Joseph 
 Carroll, since dead, was executor ; and leav- 
 ing as her next of kin, her children Matilda 
 Poag, Martha Abshier and Esther Poag. The 
 husband of Martha Abshier left this State 
 about fourteen years ago, and has not been 
 
 heard of since. Esther Poag died in 18.39, 
 leaving a husbanii Jackson Poag. and two 
 children, Dorcas and Mary J. The bill is 
 tiled by Matilda Poag, Jackson Poag. Dorcas 
 Poag, and Mary J. Poag, as heirs at law of 
 Jane Gallagher against C. P. Sandifer, the 
 present owner of the land, and against the 
 administrators and distributees of Minor Car- 
 roll, and prays that Sandifer be compelled 
 to deliver up the sixty acres, and account 
 for rents and profits, or that Sandifer, or the 
 administrators of Minor Carroll, if they have 
 sufficient assets in their hands, otherwise the 
 distributees of Minor Carroll, account for the 
 value of the land with rent or interest. Mar- 
 tha Abshier is not made a party, and it is 
 alleged that she has released her interest to 
 Matilda Poag. 
 
 The defendants deny the trust, and plead 
 the statute of limitations ; but, in limine, in- 
 
 *172 
 sist that Martha Abshier and the 'personal 
 representatives of Jane Gallagher and Esther 
 Poag, are necessary parties to the suit. The 
 determination of the question, whether any of 
 these is a necessary party, may depend on 
 the character of John Carroll's legal estate 
 in the land, whether leasehold or freehold, 
 at the death of Jane Gallagher, in 1832 ; and, 
 perhaps, on that of his devisee afterwards. 
 I mean their estate in the Indian lands under 
 our legislation, for it is unr.ecessarj- to inves- 
 tigate whether the reversionary right was 
 originally in the State or the Indians. 
 
 By the Act of 1739, 3 Stat. 525, all persons 
 were inhibited from treating with the In- 
 dians for their lands, without a license from 
 the Governor and Council, and all conti-acts 
 with the Indians for their lands were declar- 
 ed void. In 1808, the Catawba Indians were 
 empowered, under certain restrictions, to 
 lease their lands for a term not exceeding 
 three lives in being or ninety-nine years. (5 
 Stat. 576.) In 1812, some of the restrictions 
 upon leasing were repealed, and it was fur- 
 ther provided, "that a lease for three lives 
 or ninety-nine years of the said Catawba 
 lands shall be, and the same is hereby de- 
 clared to be, a qualification equivalent to a 
 freehold, in all cases where a freehold is not 
 required by the Constitution of this State, or 
 of the United States." (5 Stat. 678.) The 
 Act of 1838, (6 Stat. 602,) invested on pre- 
 scribed conditions, all the reversionary right 
 and interest of the State in these lands in the 
 lessees; and the Act of 1840, (11 Stat. 102,) 
 authorized the lessees on certain terms to 
 take out grants for these lauds, and to hold 
 them as other lands. 
 
 The title of John Carroll to the tract in 
 question, from his lease in 1819 until his 
 death in 1837, governed by the Acts of 1803 
 and 1812, was clearly enough a chattel in- 
 terest, unless the latter Act converted it into 
 a freehold: and it is argued that such is the 
 effect of the Act. But the Act does not pro- 
 
 68 
 
 ^=»For other cases see same topic and KEY-NUMBER in all Key-Kumbered Digests and Indexes
 
 POAG V. SANDIFER 
 
 fess to change the nature of the estate of the 
 lessees; it <.nly makes a chattel interest 
 (Hiuivalent to freeh(.Id for certain political 
 purposes; it qualifies the lessees to sit as 
 jurors on the trial ..f slavrs. and to exercise 
 
 *173 
 other privile^'es limited by law to free'hold- 
 ers— perhaps to iH'cme members of our 
 House of Representatives, under the consti- 
 tutional re.|uin-m<'nt of "a real estate of the 
 vaiue (.f £150 sterlin;:. clear of debt " I am 
 informed that these leasehohls. where grants 
 have not been taken out nii<ler the \ct of 
 1S40, have always been refrarded without dis- 
 pute as passing to the personal representa- 
 tives of deceased owners, for sale or other 
 disposition. In I'ayne v. Harris. .3 Strob Fq 
 39 42, wliere the nature of the estate in the'se 
 Indian lands of an intestate, who died in 
 1841, was in question, the Court say: "lease- 
 hold estates go to the executor, and are per- 
 sonal estate within the meaning of the Act 
 of 1701, which intended to include under the 
 term, whatever was to be administered by the 
 personal representative of the deceased." If 
 the legal estate was a chattel real, any trust 
 imposed upon it would follow its nature- and 
 the benelicial interest of .lane (iallagher at 
 her death in 1852. passed to her executor 
 This question is not formal merelv for on 
 the terra of the statute of limitations 'and the 
 effect of the acts and declarations of Jane 
 Ciallagher-s executor, both of which may 
 seriously affect the rights of the parties the 
 decision may turn. It is urged, that as bene- 
 h<iaru.s have the option to accept the subject 
 in which trust funds have been invested by 
 trustees, and as the land here has become 
 Ircehold by the grant of 1841, the ellect must 
 be to change the character of the beneficiaries 
 retroactively into heirs at law. But I cannot 
 venture, without hearing the personal rei)- 
 rcs.-iitative. thus to nullify intermediate Acts 
 and establish new rights and liabilities l)y re- 
 lation. I think that the personal representa- 
 tive of Jane Gallagher should be made a 
 party. 
 
 liien as to the necessity of bringing the 
 personal representative of Esther Poag before 
 the Court. Many of the preceding ..bserva- 
 tions ai)ply to this question, but before her 
 ( eath the Act of 18;rs came into operation 
 ihe reversionary right and interest of the 
 Mate granted by that Act to the lessees 
 l>robably means the possibility of reverter to 
 the State upon the extinction of all the In- 
 dian iiossess(.rs, and the right of the State to 
 extinguish by treaty their usufructuary in- 
 terest 
 
 •174 
 'The grant cannot be construed to change 
 the estate of the les.sees Into freehold es- 
 pecially after the ca.se of Payne v. Harris 
 Supposing, however, the beneficial interest of 
 Esther Poag was of the nature of a chattel 
 real, then, if Jackson Poag. her husband re- 
 duced it into possession during the coverture 
 
 ♦175 
 
 he became entitled to it as a marital right 
 and IS properly U^fore the Court, although 
 his children Horcas and Marv J. are mis- 
 joined as plaintifTs. But it is not clear that 
 he coul.l reduce to po.ss.-ssion su.-h an e.piita- 
 I. e interest: nor does it appear that he either 
 aliened this chattel or attempted to reduce 
 It to possession during the coverture. It 
 seems by the cro.ss-examinatlon of .Martha 
 A .shier, that he never lived upon the land, 
 ihe p.'r.sonal rejjresentatlve of P:sther Poag 
 should be made a party, (i Wms. Kxors 
 •ir.).) 
 
 Then as to .Martha Absbier. .\ny interest 
 that she could release to .Alatibla Poag is 
 probably an equitable interest. n..t transfer- 
 "I'le at law; and it is settled that the as- 
 signor must be a party to any suit bv the a.s- 
 slgiiee respecting the cho.se.— Cathcart v 
 Lewi.s. 1 Ves. jun.. 4G.'{; Wnlburn v. Ingllby." 
 1 Alyl. & K., Gl. (0. Con. Eng. Ch. R.. 498 ) 
 Jf hers were a legal interest in a .battel 
 real, it would .seem that it was reduced to 
 IH.ssession by her husband during coverture- 
 and his representative would be a iieces.^ary 
 part.v. But I am not j.repareil to de.i.j'e 
 that the interest was susceptible of reduc- 
 tion into pos.session. I have alreadv waived 
 prejudging the effect of the grant of 1S41 
 on the estate of the.se claimants. Mv con<-lu- 
 sion is. that Martha .\bshier is a {.roper j.ar- 
 ty— that the plaintifls might use her as a wit- 
 nes.s. is suggested in the answer as the na- 
 tive of omitting lier as a party originailv; 
 and I may say. to avoid misconception, that 
 the exclusion of her testimony does not nec- 
 es.sarily folb.w from this (le<ision 
 
 It is ordered, that the i-Iaintiffs. within a 
 reasonable time, make .Martha Absbier and 
 l.ersonal representatives of Jane (Jallaglier 
 and Ksther Poag. parties to this suit 
 
 Afterwards, at June Sittings. l,So2 the 
 cau.se was heard before his Honor. Chancel- 
 lor Johnston, who made the following de- 
 cree: 
 
 *175 
 ♦Johnston. Ch. This cause relates to cer- 
 tain lands lying within the Indian boundarv 
 in York district; and it may be proper, by 
 way of introduction, to .state the statutory 
 law of the State relating to lands of this 
 description. I am indebted to mv brother 
 ^\ardlaw. who has made a decision upon cer- 
 tain points in this cau.se, for the followine 
 summary of it: 
 
 Ry the Act of 17;J9, (3 Stat. r,2.-,.) all per- 
 sons were inhibited from treating with the 
 Indians for their lands without licen.se frf.in 
 the (Governor or Council, without which all 
 contracts with the Indians f(.r tli-ir lands 
 were ditlared void. 
 
 In isos, the Catawba In<lians were era- 
 lowered, under certain restrictions, to lease 
 their lands tor a term not exceeding three 
 lives in lu-ing. or 99 years. (.1 Stat. .-.7(>.) 
 
 In isin. some of the restrictions upon leas- 
 ing were repealed; and it was furiher pro- 
 
 69
 
 *175 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 vided that, "a lease for three lives, or 99 
 years, of the said Catawba lands, shall be, 
 and the same is hereby declared to be, a 
 qualification, equivalent to a fi'eehold, in all 
 cases where a freehold is not required by the 
 constitution of this State, or of the United 
 States." (5 Stat. 678.) 
 
 The Act of 1S8S, (6 Stat. 602,) vested, on 
 prescribed conditions, all the reversionary 
 right and interest of the State in these lands 
 in the lessees. 
 
 And the Act of 1840, (11 Stat. 102,) author- 
 ized the lessees, on certain terms, to take out 
 grants for these lands, and to hold them as 
 other lands. 
 
 Thomas Carroll held a large body of lands 
 of this description, on which he resided in 
 1819, and had resided from the beginning of 
 the present century, and for some years pre- 
 vious. In June, of that year, (1819,) he au- 
 thorized a survey to be made by one Kuyken- 
 dal, for the division of his lands between 
 his three sons, then living, to wit: John Car- 
 roll, Matthew Carroll and Joseph Carroll. 
 At the time, John Gallagher, the husband of 
 his daughter Jane, wag residing, with his 
 family, on this land. 
 
 The survey had been nearly completed 
 when Gallagher interfered and set up a claim 
 
 *176 
 to some portion of the land intended *to be 
 divided. This led to a dispute, which was 
 compromised, however, by including the resi- 
 dence of Gallagher, and the spot of ground 
 cultivated by his family around his house, in 
 the portion to be laid off to John Carroll. 
 
 The portion laid off to John Carroll, con- 
 taining 524 acres, was platted by Kuykendal, 
 the 1st of June, 1819 ; but the plat takes no 
 notice of the possession of Gallagher, nor of 
 any portion of the land or its boundaries, 
 now alleged to have been intended for his 
 wife within the limits of that plat. 
 
 Shortly after this division, the lease of 
 Thomas, the father, was surrendered, and 
 among others, John Carroll, on the of 
 
 , 1819, took out a new lease to himself 
 for the 524 acres allotted to him, and if not 
 already in possession, he took possession of it. 
 
 Thomas, the father, died at some uncertain 
 period afterwards. 
 
 Gallagher and his family remained on the 
 land as before the division. 
 
 Gallagher died 6th March, 1825, but his 
 wife and children continued on the land. 
 
 On the 8th of March, 1832, Jane Gallag- 
 her made her will, of which she appointed her 
 brother, Joseph Carroll, one of the executors, 
 who alone qualified and acted. This will was 
 admitted to pi'obate the 21st of the same 
 mouth ; so that she must have died between 
 the 8th and 21st of March, 1832. 
 
 The will makes no express mention of 
 lands ; but, after disposing of a negro, Andy, 
 her cooking utensils, a loom, a reel, two pairs 
 of cards, two wheels and two beds, with their 
 furniture, the testatrix proceeds thus: — "All 
 
 70 
 
 the balance of my property, consisting of my 
 negro man, Jim, my cows, and many other 
 pieces of property, li direct my executors, 
 hereinafter named, to expose to public sale," 
 &c. 
 
 Jane Gallagher left three daughters, Ma- 
 tilda, then the wife of Leander I'oa^ Martha 
 and Esther. The three sisters, with Leander 
 Poag, Matilda's husband, i-emained at the 
 old spot on the land ; Martha married one 
 Alfred Abshier, and he came in with them, 
 as did also Jackson Poag, who married 
 Esther. 
 
 "►177 
 
 *In 1834, Abshier gave his note to John 
 Carroll for that year's rent of the premises 
 in their occupancy. The next year he refused 
 to give another note for rent, and John Car- 
 roll sued him for the possession. He defend- 
 ed himself, and in the plat of survey made 
 for the trial of the case, (dated Oct. 6, 1834,) 
 we have, for the first time, the spot located 
 where the family of Jane Gallagher resided. 
 It is laid down by dotted lines as "Abshier's 
 farm— about twenty acres cleared and in 
 crop." On the 1.5th of October, 1836, the 
 action was tried, and John Carroll recover- 
 ed ; and under further proceedings in that 
 case, Abshier and his co-occupants were dis- 
 possessed, and Carroll put in possession in 
 their place. Abshier absconded 2d July, 1887, 
 and has not been since heard from. 
 
 John Carroll died 6th May, 1.837, having 
 devised his lands to Minor Carroll, who came 
 into possession. In 1841, Minor took a grant 
 covering the whole 524 acres from the State. 
 He died intestate, in possession, in May, 
 1844 ; and, in 1845, the whole body of land 
 was sold for partition among his heirs, under 
 proceedings in this Court, and bought by the 
 defendant, Calvin P. Sandifer, who has not 
 yet paid the whole purchase money. 
 
 Dudley Jones and one Thomas Carroll, 
 jointly administered on Minor's estate, and 
 are made defendants to this suit— as are also 
 the heirs of Minor. 
 
 Matilda's husband, Leander Poag, having 
 died, Abshier, the husband of ^Nlartlia, hav- 
 ing removed from the Stace, and being pre- 
 sumed to be dead — and Esther having died, 
 leaving her husband, Jackson Poag, and two 
 children, who are still infants: — an action 
 was brought by the two sisters, Matilda and 
 Martha, and by the distributees of Esther 
 against Sandifer, the purchaser of the land, 
 to recover possession. Their action was 
 brought , 1849, and came on to be tried 
 
 at February, Extra Term, 1851, of the Com- 
 mon Pleas for York; and resulted in a ver- 
 dict for the defendant, Sandifer. There- 
 upon, the same parties, with the exception of 
 Martha Abshier, who is made a defendant, 
 filed this bill, the 17th of March, 1851. Ma- 
 
 *178 
 tilda Poag sues in *her own right, and as ad- 
 ministratrix de bonis non, cum testamento 
 annexo, of her mother, Jane Gallagher, whose
 
 POAG V. SANDIFER 
 
 *180 
 
 executor. Joseph Carroll, is dead, and also, 
 as administratrix of her deceased sister, 
 Esther I'oaii;. The defendants are Martha 
 Alishier, Sandifer, and the administrators 
 and heirs of Minor Carroll. 
 
 The bill, which is very vague, states that 
 John (Jallajiher, shortly after his marriage 
 with Jane Carroll, the daughter of Thomas 
 Carroll, removed and settled upon a part of 
 a certain tract of land then held by the said 
 Thomas Carroll, under a lease from the 
 Catawba Indians, lying, &c., "and having such 
 shapes and boundaries as will appear by ref- 
 erence to plats of the same herewith filed, 
 as exhibits A & B," (which, by the way, were 
 never filed.) "That the said John Gallagher 
 continued in the peaceable and undisturbed 
 po.ssession of said land, for a period of 
 about twenty years, until his death, without 
 the said Thomas having executed a lease 
 therefor." "That Jane (Jallagher, the widow 
 of the said Jolin, continued in possession 
 of tlie said land until her death, in the year 
 of our Lord, 18;J2 ; leaving your oratrix, 
 Matilda I'oag, Martha Abshier, and Ksther 
 I'oag, lier only surviving children. That the 
 said Jane left a last will and testament." 
 (referred to as an exhibit, but not exhibited.) 
 •'That one Joseph Carroll took upon himself 
 the execution of the said will. That as ex- 
 ecutor of Jane (Jallagher, he in no wise claim- 
 ed or administered upon .said land as a part 
 of tlie estate of Jane (Tallagher." "That on 
 the day of June, in the year of our Lord, 
 
 1819. Thomas Carroll made a partition of his 
 lands — and a tract leased by him to liis son, 
 -Moses Carroll, who had died, leaving neither 
 wife nor children. That upon that occasion, 
 it was agreed by and between the said Thom- 
 as Carroll and liis children, John Carroll. 
 Matthew Carroll, Jo.seph Carroll, John and 
 Jane Gallagher, that sixty acres of land, em- 
 bracing the liouse where the said John Gal- 
 lagher then lived," (no other description of 
 its location or boundaries.) "should be run 
 into the said John Carroll's share of land, 
 for the use and benefit of the said Jane Gal- 
 lagher and her children." "That no lease 
 
 *179 
 was executed for the share of ♦said Jane 
 (Jallagher and her children, in the partition 
 of said land, but that the same was so run 
 into the plat of the said John Carroll, In 
 special trust and confidence that the said 
 John should .stand seized of the same for 
 the sole use and benefit of the said Jane 
 (iallagher and her children — in order that 
 the share of the said Jane in the lands so 
 liiirtitioned, should not be subject to the con- 
 trol or debts of the said John (Jallagher, who 
 was thriftless in his habits an<l in insolvent 
 circumstances." "That said John Carroll, 
 from the time of the said partition until his 
 death, acknowledged that sixty acres of land 
 covered by his lease," (viz: one which lie 
 took from the Indians after the partition,) 
 "and lying around the Gallagher liouse, of 
 
 right belonged to his si-ster Jane Gallagher, 
 and her children — and that he was holding 
 the same for their use and benefit." 
 
 The bill then proceeds to state the death 
 of John Carroll, after having ousted Abshier 
 and his companions; his devise to Minor Car- 
 roll; the grant taken out by Minor in 1841: 
 his death; the purchase of his land by Sand- 
 ifer, &c., as I have narrated them: and 
 avers, that the administrators of Minor, have 
 a.s.sets to compensate them for the value and 
 rents of the sixty acres, which the plaintiffs 
 claim; if not, that the residue, due by Sand- 
 ifer on his purcha.se. should be subjected ; 
 and if insufficient, the heirs of Minor should 
 answer out of so nuich of the proceeds of 
 the sale, and a.ssets of the estate of Minor, 
 as they have received. The bill also states, 
 that Martha Abshier has assigned her inter- 
 est to Matilda I'oag, her sister. 
 
 If the plaintiffs are entitled to the value of 
 the land, I suppose an in«iuiry might be made 
 into the assets and the balance due by Sand- 
 ifer, &c., and a decree made accordingly. 
 
 Hut the statements of the bill which I 
 have quoted, are denied by the answer gen- 
 erally. It is denied that Moses, the son of 
 Thomas Carroll, who died before the divisi<kn 
 of 1811), ever had any lease from his father, 
 or any other interest in any portion of his 
 lands, than a permissive pos.session as tenant 
 at will. It is. denied that John Carroll ever 
 agreed to hold the sixty acres in trust for 
 Jane Gallagher and her children, although 
 
 *180 
 he agreed *to permit her to reside on his 
 lands during her life: and the answer denies, 
 that he. at any time, acknowledgetl the land 
 to belong to her or her children, or that he 
 held it in trust for her or them. 
 
 Now, if there is evidence to establish the 
 agreement, it must be in writing, or the 
 contract must be taken out of the statute of 
 frauils by some circumstance, so as to let In 
 parol proof of it. 
 
 The defendants have not pleaded the stat- 
 ute, but having denied the contract as statetl. 
 they objected, at the hearing, to the proof of 
 it by parol. 
 
 In Cozine v. Graham, 2 I'aige, 177. where 
 the contract relateil to land, the Chancellor, 
 upon an examination of cases in the Court 
 of Chancery, observes: "The rule of pleading 
 on this subject is well settled in the Court 
 of Law; and I do not see why the i)rinciitle 
 of that rule is not equally applicable to this 
 Court. It is there held, that the statute did 
 not alter the form of pleading. That if au 
 agreement or contract is stated in tlu' decla- 
 ration to have been made, it is not nect-ssary 
 to allege that it was in writing, as that will 
 be presmned until the contrary appears. If 
 the agreement is denied, the jdaintilT must 
 produce legal evidence of its existence, which 
 can only be done by producing a written 
 agreement, duly executed according to the 
 provisions of the statute. If the agreement 
 
 71
 
 *1S0 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 is admitted by the pleadings, no evidence to 
 prove its existence is necessary, and the 
 Court never inquires whether it was in writ- 
 ing or not." 
 
 In the Ontario Bank v. Root, 3 Paige, 478, 
 the principle affirmed in Cozine v. Graham, 
 is referred to and approved. In this latter 
 case, (Bank v. Root,) the agreement fell under 
 another head of the statute of frauds. It 
 was an agreement to pay the debt of another ; 
 and was denied in the answer. The Chancel- 
 lor says, "As the agreement was denied in 
 the defendant's answer, it was not necessary 
 for him to insist upon the statute as a bar. 
 The complainant in such case must produce 
 legal evidence of the existence of the agree- 
 ment, which cannot be established by parol 
 proof merely." 
 
 *181 
 
 *This appears to be a reasonable view of 
 the subject. In this case, the bill states 
 that no lease was executed for what the 
 plaintiffs denominate "the share of Jane," 
 in the division of 1819, which approaches 
 very near to stating, that the agreement, stat- 
 ed to have been made in relation to her 
 "share," was merely verbal. If that had 
 been explicitly stated in the bill, the bill 
 itself would have put the agreement within 
 the statute, and the defendants need not have 
 pleaded it. It is the function of a plea to bring 
 to the view of the Court, independent facts 
 not stated in the pleading of the other party; 
 which facts are sufficient in law to bar the 
 claim set up in that pleading. But if the 
 other party himself states matter which is 
 good ground of defence, he pleads against 
 himself, and must submit to the bar which 
 he himself establishes. There is no need 
 to plead the bar in such a case. But it is 
 possible, that though no lease was executed, 
 a written agreement was made of the descrip- 
 tion stated. The defendants deny that any 
 agreement of the kind was made, and call for 
 the proof. No written agreement, as required 
 by the statute, is produced, but in its place 
 parol evidence is adduced. The defendants 
 object to it, and the statute decides it gen- 
 erally insutficient. The statute must avail 
 the defendants, unless a case is stated and 
 proved, which in some way escapes its oper- 
 ation. 
 
 It has been urged, that the long possession 
 of Jane and her family, under the "alleged" 
 agreement, takes it out of the statute, being 
 in the nature of a part execution of the con- 
 tract: and so it would (possibly) if that pos- 
 session had been taken under the agreement. 
 A statute made for the suppression of fraud, 
 shall not be perverted by construction so as 
 to make it the instrument of fraud. If a 
 party, by means of a verbal contract, induces 
 another to take possession of lands, by which 
 he would be liable as trespasser, unless the 
 agreement was allowed and enforced, this 
 would be a fraud; and the party guilty of it 
 shall not shield himself under a statute in- 
 
 tended simply as a defence against injustice. 
 But Jane's possession was not taken under 
 the agreement alleged, but existed before, and 
 
 *182 
 it has been *often held, that tbe mere re- 
 tention of a pre-existing possession does not 
 take a case out of the statute. 
 
 But it is attempted to take the case out of 
 the statute in another way. It is alleged that 
 Moses, the deceased son of Thomas Carroll, 
 held a lease from his father for part of the 
 premises partitioned- among the surviving 
 sons in 1819, and that Moses having left nei- 
 ther wife nor issue, Jane was entitled to a 
 "share" of his leasehold estate part of the 
 lands to be divided. The intimation is, that 
 the surviving brothers were allowed to throw 
 her share into the lot of John, upon condition 
 that he would hold it in trust for her benefit. 
 This would, certainly, be sufficient, in two 
 ways, if the facts existed. It would give a 
 right of partition in Moses' portion of the 
 lands; or it would operate as a consideration 
 of the trust contract alleged in the bill ; and 
 John Carroll's being let into possession of 
 the residue of the land, would be a sufficient 
 part execution to bind him. 
 
 But the proof that Moses ever had such 
 a right as is alleged, utterly failed. He was 
 an occupant of part of the land in his life 
 time. But that he ever had a lease or other 
 title from his father, so as to constitute it his 
 estate, does not appear; nor is the amount or 
 boundaries of his supposed land ascertained. 
 It rather appears to have been a permissive 
 occupancy. The whole land divided belonged 
 to the father, and he disposed of it, as his 
 own, to his sons. 
 
 Were the statute not in the way, I think 
 the evidence of the contract alleged, alto- 
 gether too loose to make it tlie ground of a 
 decree, under the circumstances of this case. 
 The evidence is all in writing, and will verify 
 my remark. 
 
 Were the evidence not only sufficient to 
 take the case out of the statute of frauds, 
 but so explicit as to be made the ground of 
 a decree, there are other difficulties which 
 I have felt, and which I will mention with- 
 out concluding anything on them. 
 
 It is not a reasonable construction of any- 
 thing testified to by any witness, to conclude 
 that the import of John Carroll's engagement 
 was, that he was to hold the land in trust 
 entirely for his sister Jane, during her life, 
 
 *183 
 and then for her children, by way *of re- 
 mainder, after her death; nor, (by the by) is 
 that the way in which the bill states the 
 contract. Such modes of verbal arrangement 
 are too unusual, to render it reasonable to 
 believe such was the case, in this instance. 
 When contracts of that complexity are enter- 
 ed into, parties are disposed to put tliem in 
 writing. It would be unsafe, (in contracts 
 relating to land,) to infer from a conversa- 
 tion such as took place in 1819, distinct 11ml-
 
 POAG V. SANDIFER 
 
 »185 
 
 tations of such proporty. 'Witnesses are too 
 liable to be mistaken, especially after the 
 lapse of thirty years, ttt allow of this. The 
 inherent evidence is better than the recollec- 
 tion of any witness in such a case. The in- 
 tention plainly was to keep the land for 
 Jane, she beinp the <)lije<t of affection, and 
 the n)cnti<»n of her children was not made 
 with an intention to yive them any title, but 
 by way of indicatin;; that their mother 
 should have a shelter for them. Such is 
 njy inference from the testimony, so far as I 
 think it credible. 
 
 Then, consideriufr the land as Jane's, I 
 am of opinion with my brother Wardlaw, 
 that, as leasehold, it went to her e.xecutor, 
 Joseph Carroll: — and he not elaimiiiK it, (as 
 the bill says. I as part of her estate, was 
 bound l)y tiie adverse holdinti: of John Carroll 
 and Minor Carroll. 
 
 John (Jallagher, her husband, did no act 
 in bis life time to destroy her riyht by sur- 
 vivorship. The law, apiilicalde to leasehold 
 estate, is well stated by a good elementary 
 writer, (Wuis. on Ex'ors.,) thus: "The law 
 gives a qualified interest to the husband in 
 the chattels real, of which the wife is, or 
 may be, possessed during marriage; viz: an 
 interest in his wife's right, with a power of 
 divesting her property during the coverture. 
 If, therefore, he so disposes of his wife's 
 terms, or rather chattels real, by a complete 
 act in his life time, her right by survivorship 
 will be defeated. But if he leave them in 
 statu (luo. and the wife, be the survivor, she 
 will be entitled to them to the exclusion of 
 the executors or administrators of her hus- 
 band." John Gallagher did no act to reduce 
 his wife's leasehold into a right in himself; 
 nor did he alienate it. It survived to her, 
 
 *184 
 ♦and according to I'ayne v. Harris, 3 Strob. 
 Eq. oD, went to her executor ; who was bar- 
 red. The title was in him. It did not "de- 
 scend, or come" to Jane's distributees ; and 
 the statute of 1824, saving the bar of the 
 statute, where titles descend upon a number 
 of persons, some of whom are infants, does 
 not apply. The statute having begun to run 
 against the executor, though it had not com- 
 pleted its bar in his life time, run on, aud 
 was not su.spended in the interval between 
 his death, and the grant of administration to 
 Matilda I'oag, his successor. I incline to the 
 opinion, this is the law on this part of the 
 case, though I do not think it necessary so 
 to decide. 
 
 I return to the statute of frauds, and 
 make that the foundatiou of my decree. 
 
 It is ordennl that the bill be dismissed. 
 
 The complainants appealiMl from the de- 
 cree of his Honor, Chancellor Johnston, and 
 moved this Court to reverse the same on the 
 grounds: 
 
 1. Hecau.se the defendants not having 
 plea<led the statute of frauds, they are pre- 
 cluded from setting it up as a defence. 
 
 li. Hecause .Fobn Carroll having procured 
 Jane (Jallagher's share of Mo.ses Carroll's 
 land to be run into his plat, on his parol 
 assurance to hold the .same for her and her 
 diildren, it would operate as a fraud, to per- 
 mit him, or those clainnng under Idm, to set 
 up the statute of frauds as a liar. 
 
 .'{. Hecause the long possession of John <ial- 
 lagher and family, under the parol partition 
 of ISIO, takes the trust contract out of the 
 statute, iiuismuch as the consideration of 
 said contract was Jane (Jallaglier's share of 
 her brother Mos»'s' lands. 
 
 4. Because, under the circumstances, the 
 complainants are entitled to have jiartition 
 of the land in disiiute, in right of Mo.ses Car- 
 roll. 
 
 5. Because the trust contract is jtrnved 
 
 *185 
 with sufficient certainty 'to entitle comjilain- 
 ants to have an account ft)r the value of the 
 land, and rents, and profits. 
 
 0. Because the statute of limitations does 
 not apply, and there was no one against 
 whom it could run ; that in any event the 
 infant complainanis are not barred. 
 
 7. Because John Carroll at no time did 
 any act declaring his intention to discharge 
 himself of his trust, but on the contrary, 
 after he dispossessed Abshier, admitted com- 
 plainants' title to the land. 
 
 .S. Because the grant covering the land 
 was ol>tained by Minor Carroll, upon the 
 lease of complainants, the iH'neticiary owners 
 of the same, upon which alone he could have 
 obtained it. 
 
 9. Because au executor is not to be deemed 
 in possession of chattels real before entry. 
 
 Smith, for appellants. 
 Williams, contra. 
 
 PER CURIAM. This Court sees no reason 
 to disturb the conclusion to which the Chan- 
 cellor has come: and it is ordered that his 
 decree be affirmed, and the ajipi-al dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN 
 WARUI^W, CC, concurring. 
 Decree affirmed. 
 
 aud 
 
 73
 
 CASES IN EQUITY 
 
 ARGUED AND DETERMINED IN THE 
 
 COURT OF APPEALS 
 
 AT CHARLESTON, SOUTH CAROLINA— JANUARY TLR.^L 1S53. 
 
 Chancellors Present. 
 
 Hon. jor. JOHNSTON, 
 " BEN J. F. 1 UN KIN. 
 " GE()R<JE W. PAJIGAN, 
 " F. H. WARDLAW. 
 
 5 Rich. Eq. *I87 
 
 ♦ROBERT S. BAILEY, and Others, v. KER 
 BOYCE and Others. 
 
 (Charleston. Jan. Term, 1S53.) 
 
 \lJdCciitors and Adnihiistraturs <©=>.S91.] 
 
 The defendant concurred witli his co-execu- 
 tor in acts, as (1) an ajireenient to sell, and 
 (2) an answer in Equity eoncurrins in the 
 lirayer of the purchaser's bill that the sale l)e 
 i-onHriued, whereby the co-executor was enabled, 
 without necessity, tt) sell the testator's laud on 
 credit: the debt was lost throujih the neglect of 
 the co-executor to record a uiortiiage of the 
 l)reniises, given to secure the payiuout of the 
 purchase money :—//(/(/. that defendant was lia- 
 ble, to a devisee, for the loss ; but not liable 
 to another devisee, who was also executrix, and 
 as a party to the purchaser's bill had also con- 
 curred in the prayer. 
 
 [Ed. Note.— For other cases, see Executors 
 and Administrators, Cent. Dig. § 15S9; Dec. 
 
 Dig. c=>:',\n.\ 
 
 \ Infants <S=5l05.] 
 
 An infant not bound by a decree to which 
 she was not regularly a party, may nevertheless 
 attirra it and claim its benelit. 
 
 [Ed. Note. — For other cases, see Infants, Cent. 
 Dig. S ''02: Dee. Dig. <©=10n.l 
 
 [Ej-C(itt<irs and Adniinixtrators C^Jli,*^.! 
 
 Where one executcu" cniicurs with a devastat- 
 ing co-executor in an a<t by which the latter 
 gets possession of the funds wasted or lost, and 
 
 ♦188 
 which without such act of concur*rence could 
 not have liapi)ened, the consenting, though in- 
 nocent, executor becomes responsible for him 
 who has committed the waste or default. 
 
 [Ed. Note. — For other cases, see Executors 
 and Administrators, Cent. L)ig. §§ 49(>-530; 
 Dec. DiL'. <©i=>l'j;j.] 
 
 [IJ,]iiH'!J&:^:\W.] 
 
 Where an answer, neither signed nor sworn 
 to liy till- defi-ndant. is tiled in liis name, and 
 
 purports to be signed by his solicitor in his 
 behalf, and the case proceeds to a hearing and 
 judgment, such defendant is i)ound by the de- 
 cree, unless he can shew that the solicitcu* who 
 acted for him was not in truth authorized to 
 do so. 
 
 I Ed. Xote.-Cited in Bulow v. Witte. 3 S. C. 
 :\'22: Latimer v. Latimer. 22 S. C. Jii;i: San- 
 ders v. Triced 'A\ S. ( ". 4, IVA S. E. 731 : Mc- 
 Cullough V. Hicks. ti3 S. C. 547. 41 S. E. 7(il. 
 
 For oth^r cases, see Equity, Cent. Dig. § (Jl'l ; 
 Dec. Dig. <S=31U.l 
 
 [Jndfinient <©=»4!tL'.] 
 
 Nor can such a decree be (piestioned, or 
 treated as void, on a collateral issue: it must 
 stand good until vacated on a proceeding in- 
 stituted specifically for that purpose. 
 
 [Ed. Note. — For other cases, see Judgment, 
 Cent. Di^'. § 930; Dec. Dig. €=3492.1 
 
 [Attorney and Client <©=>7L'.l 
 
 Evidence that the .solicitor who signed de- 
 fendant's answer— not signed or sworn to by 
 defendant — had not been empbjyed by him, re- 
 viewed and declared ins-itlicient. 
 
 [Ed. Note. — For other cases, see Attornev and 
 Client. Cent. Dig. SS lOli-104 ; Dec. Dig. C= 
 72.] 
 
 Before Dargan, Ch., at Charleston, June, 
 1852. 
 
 This case came up upon the report of Mr. 
 Tupper, oue of the Masters, and exception 
 thereto. The report is as follows: 
 
 "The late Oeorge Henry appointed the de- 
 fendants, Ker Boyce and John Magrath, the 
 executors of his last will and testament, both 
 of whom {]ualitied. In January, 1847, the 
 comidaiiuints tiled their bill in this Court, 
 prayini:. among other things, an account of 
 the estate of the testator. In investjgatin.ig 
 the matters of account, which have been re- 
 ferred to me. a questi<m has arisen as to the 
 
 <£;=»For other cases see same topic auU KEY-NLMliEH iu all Key-Numbered Digests aud Indexes 
 
 V5
 
 *188 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 liability of the defendant, Boyce, for a loss 
 sustained by the estate of his testator, from 
 the nonrecordiug of a mortgage taken to 
 secure a debt due to the said estate. 
 
 "To the proper understanding of this ques- 
 tion, the following statement is necessary: 
 — George Henry, at the time of his death, 
 which occurred in 1S37, was seized of a lot 
 of land on the south side of Market-street, 
 in this city ; in May of the year 1839, an 
 agreement, in writing, was entered into be- 
 tween one Thomas D. Fell and the defend- 
 ants, Ker Boyce and John Magrath, executors 
 of the said George Henry, for the sale of 
 the ^aid lot to Fell for the sum of ?2700. on 
 the following terms: one-fourth of the pur- 
 chase money to be paid in cash, and the bal- 
 ance in a bond, payable with interest an- 
 nually, in one, two and three years, secured 
 by a mortgage of the premises. After the 
 execution of this agreement, it was discovered 
 that the executors had no authority to sell 
 the said lot, which had been devised by their 
 testator to his widow and his infant daugh- 
 
 *189 
 ter, in equal pro*portions. For the purpose 
 of securing a good title, Thomas D. Fell, on 
 the 6th June, 1840, filed his bill in this 
 Court, setting forth his agreement for the 
 purchase of the said lot, the payment by him 
 of the cash portion of the purchase price, 
 and the execution of the bond and mortgage 
 required by the terms of the said agreement, 
 also the delivery to him of the possession 
 of the said premises, the inability of the 
 said executors to legally convey the said 
 property, and praying the aid of this Court 
 in perfecting his title to the same. To this 
 bill, answers, admitting the allegations of 
 the complainant and seeking a confirmation 
 of the sale, were put in by the defendants, 
 Ker Boyce and John Magrath, and also by 
 William T. Woodward and Eliza, his wife, 
 who was the widow of the said George Hen- 
 ry ; and also by his infant daughter, Ann 
 Henry, by her trustees, Ker Boyce and John 
 Magrath. The answers are all signed by 
 the solicitor of the defendants, but not by 
 the parties themselves. On the 8th June, 
 1840, an order was made, referring the case 
 to J. W. Gray, to examine into the facts and 
 report thereon. In compliance with this or- 
 der, the Commissioner reported that, 'George 
 Henry, the testator, died seized and possess- 
 ed of the said lot of land situate on the 
 south side of Market-street, in the city of 
 Charleston, which it is proposed to sell to 
 Thomas D. Fell, the complainant, for $2700. 
 That by the provisions of the will of George 
 Henry, his estate was to be equally divided 
 between his wife and infant daughter ; and 
 in the event of his wife's marrying again, 
 his executors, Ker Boyce and John Magrath 
 were made trustees of his said daughter's 
 share of the estate, part of which is the lot 
 in question.' 
 
 " 'I find that Mrs. Henry has lately married 
 
 76 
 
 again, and the interest of her said daughter 
 is placed under the trusts of the will. That 
 Thomas D. Fell has agreed to become the 
 purchaser of the said lot of land for the sum 
 of two thousand seven hundred dollars, pay- 
 able as follows: one-fourth cash, and the 
 residue in a bond with interest payable an- 
 nually, in one, two and three years from 
 date, secured by a mortgage of the proper- 
 ty ; that as the executors have no power 
 
 *190 
 under the will to sell, *and as the infant 
 daughter of George Henry cannot consent to 
 the sale by reason of her minority, a good 
 title cannot be made without the aid of this 
 Court. I find that the property has been un- 
 productive to the estate of Henry, since the 
 great fire of April 1838, by which the build- 
 ings were consumed; and I have taken the 
 testimony of a witness, who is well qualified 
 to form a judgment of the value, and find 
 that the price offered by Fell is a full and 
 fair consideration, and I respectfully sufcmit 
 to your Honors that the said offer be accept- 
 ed and the title made to the purchaser as 
 desired.' 
 
 "Upon the coming in of this report, it 
 was ordered, 'that it be confirmed, and that 
 the Commissioner of this Court do make ti- 
 tles for the said lot of land to the said Thom- 
 as D. Fell, upon his complying with the terms 
 of the contract, as set forth in the said report. 
 The share of the infant, Ann Boyce Henry, 
 to be held by the said executors under the 
 trusts of the said will of the said testator, 
 George Henry. And the costs and charges to 
 be paid out of the estate of George Henry, 
 deceased.' 
 
 "Subsequent to these proceedings, Thomas 
 D. Fell mortgaged the said lot to the Bank 
 of the State, to secure a loan negotiated by 
 him under the Act for rebuilding the city 
 of Charleston. Under this mortgage the lot 
 was sold, and the proceeds applied to Fell's 
 debt to the Bank. The mortgage made by 
 Fell to secure the payment of his bond to 
 the estate of Henry, for the purchase of 
 this lot, has never been recorded, and still 
 remains unsatisfied. Upon these facts the 
 complainants in the cause now before the 
 Court, rely to charge Mr. Boyce with the 
 amount of principal and interest due upon 
 the bond given by Fell, for the credit portion 
 of the purchase of the lot in Market-street. 
 On the other hand, it is contended on behalf 
 of Mr. Boyce, that he had nothing to do with 
 the bond and mortgage from Fell, or with the 
 proceedings instituted by him. to perfect his 
 title. That in no way was he connected w'ith 
 either the possession of, or the default in not 
 recording the said mortgage, and the evidence 
 adduced in support of these positions, is re- 
 lied upon to discharge him from all liability 
 
 *191 
 or loss resulting to the estate by *reason of 
 the said default. The testimony of Mr. Phil- 
 lips, who represented Fell in the proceed-
 
 BAILEY V. BOYCE 
 
 •193 
 
 Inps in this cause, establishes tlie fact that 
 Mr. Royce was a party to the original agree- 
 ment, between the executors of Henry and 
 Fell, for the sale of this property. With 
 this exception I have b«'en unalile to (li.><cover 
 any thing to connect Mr. lioyce witli this 
 transaction. There is no proof that he knew 
 of Fell's having compiled with the terms of 
 this agreement. Mr. l'hillip.s says: that he 
 never saw lioyce on the subject, all his con- 
 ferences were with his co-executor, John Ma- 
 grath. It is true, that the answer of the ex- 
 ecntors to the bill of Fell admits that be had 
 complied with tiie terms of the agreement; 
 but lioyce's name is not signed to the answer, 
 and the testimony of A. G. Magrath, who 
 represented the executors, justifies the con- 
 clusion that Boyce knew nothing of the pro- 
 ceedings in this Court. He depo.ses, that 
 about this time Ker Boyce was very freijuent- 
 ly absent from the city; that John Magrath 
 appeared to be acting executor of the estate 
 of Henry ; that the bond and mortgage of 
 Fell were in John Magrath's possession; and 
 that he gave instructions as to the proceed- 
 ings referred to. The evidence of Mr. Gray 
 strengthens this opinion. He says: "I ex- 
 ecuted a title to Thomas D. Fell, of the lot of 
 land in Market-street, on the ll-'th of June, 
 1840, upon satisfactory evidence being fur- 
 nished me. that the terms of sale, as in the 
 proceedings, had been complied with." The 
 evidence referred to by Gray, is a certificate 
 signed "John Magrath, executor of the estate 
 of George Henry," in which he says : "I 
 have sold Mr. T. D. Fell the lot in Market- 
 street. &c." Mr. Gray further states, that 
 the bond and mortgage executed by Fell were 
 never in his possession ; that no money was 
 ever paid to him, except his costs, which were 
 paid by A. G. Magrath. The fact that Boyce 
 may have remained passive, and not obstruct- 
 ed his co-executor in receiving the credit pro- 
 ceeds of the sale of this property, will not. I 
 conceive, make him answerable for any de- 
 fault on the part of Magrath, and there is 
 nothing before me which shews that the pos- 
 session of the latter of the securities belong- 
 
 *192 
 ing to the estate of Henry, was *tbe result of 
 any act on the part of Boyce. The interest 
 claimed by the complainants in the proceeds 
 of the sale of this lot is derived through Ann 
 Boyce Henry, the daughter of the testator, 
 who was a minor at the time this property 
 was sold by order of this Court. If it should 
 appear that she was not, jiroperly, a party to 
 the proceedings under wliieli this ord«'r was 
 made, it may be that the complainants will 
 find, in their present title to the land, a 
 stronger reason tiian any here given, for the 
 nonallowanci' of their claim." 
 
 On an excejition to the reiJort, his Honor 
 made the following decree: 
 
 Dargan, Ch. This case was submitted with- 
 out argument. It comes before me on report 
 and exception. The Master's report, as to 
 
 the facts, is full and perspicuous, and no fur- 
 ther statement is necessary. 
 
 The exception relates to the liability of 
 the defendant, Ker Boyce, for a loss sus- 
 tained by the estate of his testator, from the 
 non-recording of a mortgage taken to secure 
 a debt due to the estate. 
 
 The debt thus lost was for the proceeds of 
 the sale of a lot of the testator, on the south 
 side of Market-street, which was sold to one 
 Thomas I). Fell by the defendants, Ker Boyce 
 and John Magrath, as executors of George 
 Henry, for .$!-•, 7(10. to be paid in the manner 
 si»eciHed in a written agreement executed by 
 the said defendants. Fell executed a bond 
 for the purchase money, and a mortgage of 
 the premises to .secure the payment of the 
 purchase money. This was the mortgage, the 
 non-registry of which, occasioned the loss 
 to the estate. The mortgage was otherwise 
 irregular; for Its execution by Fell preceded 
 any conveyance of title to him. 
 
 After the execution of the agreement to 
 sell, by the executors, it was discovered that 
 they had no authority to .sell, the lot in ques- 
 tion having been devised by the testator to 
 his wife and daughter, in e«iual proportions. 
 On the Gth June, 1840, Fell filed a bill in 
 Equity, setting forth the agreement, the pay- 
 
 ♦193 
 ment *by him of the cash portion of the pur- 
 chase money, and his giving a bond, and 
 mortgage of the premises, to secure the pay- 
 ment of thebalance; and prayed fi>r a con- 
 firmation of the sale, and for the aid of the 
 Court in perfecting his title. To this bill, 
 the defendants. Boyce and Magrath, fih'd an- 
 swers, admitting the allegations of the bill, 
 and also concurring in the prayer of the bill 
 for the confirmation of the sale, and that the 
 comi)lainants should have good titles. The 
 widow, and infant daughter of the testator, 
 were al.so made parties to the proceedings, 
 and filed answers. The answer of the testa- 
 tor's infant daughter was put in by the 
 trustee under the will, and was. therefore ir- 
 regular. Whether she had a gininlian ad 
 litem does not appear. 
 
 The case was referred to Master .7. W. 
 Gray. On a favorable rei)ort from him. the 
 Court confirnied the sale, and ordered titles 
 to be made to Fell, by the Commissioner of 
 the Court, on his conqtlyiiig with the tenns of 
 the contract, as set forth in the said report. 
 Titles wt're executed, and delivered to Fell, 
 in i»ursuance of this order ; but no new 
 mortgage was executed by him to the Com- 
 I missioner, or to the executors; Fell having, 
 prior to the filing of the bill, complied with 
 I all the terms of the sale as set forth in the 
 agreement. The construction which I put 
 upon the decree is, that it intended to con- 
 firm the sale, and perfect the title, and to 
 leave the bond and mortgage In the hands of 
 the executors, to be disposed of in conformity 
 with the devises and trusts of the will. 
 
 ^>ubse«pient to these proceedings, Thomas 
 
 71
 
 *193 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 D. Fell mortgaged the said premises to the [ 
 Bank of the State, to secure a loan negotiat- 
 ed by him under an Act for rebuilding the 
 City of Charleston. Under this mortgage the 
 lot has been sold, and the proceeds applied to 
 the payment of the debt of Fell to the Bank. 
 The mortgage to secure the debt due to the 
 estate of George Henry, in consequence of 
 its not being recorded, has been postponed 
 to that in favor of the Bank. The debt due 
 to the estate of Henry has never been paid, 
 with the exception of the one-fourth of the 
 purchase money received as the cash instal- 
 
 *194 
 ment. *Fell is insolvent. John Magrath is 
 also insolvent. And the question is, whether 
 Boyce is liable? 
 
 The defence of Boyce rests upon the as- 
 sumption, that the money, (cash instalment.) 
 the bond and the mortgage, went into the 
 possession of his co-defendant, John Ma- 
 grath ; that the whole transaction was man- 
 aged by him ; and that the loss has resulted 
 from his default alone. The evidence ad- 
 duced to establish the state of facts thus as- 
 sumed, is, to my mind, inconclusive. But 
 admitting the facts, as above stated, to be 
 true, there are still other facts, having an 
 important bearing upon the question, which 
 are also indisputably true. Boyce did. joint- 
 ly with his co-executor, execute the contract 
 of sale to Fell. The bond and mortgage were 
 given jointly to the two executors, Boyce and 
 Magrath. On the bill filed by Fell for a con- 
 firmation of the sale, and for the perfection 
 of his title, they both filed answers, and both 
 concurred in a prayer that the sale should be 
 confirmed, and the title of the complainant 
 should be perfected. 
 
 This is precisely the case of Mathews v. 
 Mathews, McM. Eq. 410. In the latter case, 
 the testator, George Mathews, devised the 
 real estate in question to his five younger 
 children. He appointed Mi's. Martha Ann 
 Mathews his executrix, and William Savage 
 Elliott his executor — of whom the latter 
 alone proved the will, and acted in the 
 execution of it. He sold the land to Edward 
 Gamage, and afterwards filed a bill, in which 
 Mrs. Mathews joined, for the confirmation of 
 the sale. In pursuance of an order of the 
 Court, the Master in Chancery executed 
 titles to Gamage, received the purchase mon- 
 ey, and paid it over to the executor, W. S. 
 Elliott. On a bill filed by the devisees of the 
 testator, George Mathews, against Mrs. 
 Mathews, the executrix, for an account, it 
 was decided, that she was accountable for 
 the devastavit of her co-executor, (who was 
 insolvent,) in regard to the fund arising from 
 the sale of the real estate. This case is much 
 stronger in favor of the party who did not 
 receive the money, and who, personally, com- 
 mitted no devastavit, than the one now be- 
 
 *195 
 fore me for judgment. In *ueither, was 
 78 
 
 there a necessity to sell for the payment of 
 debts. And in both, the innocent executor 
 concurred with the devastating executor in 
 an act. by which the latter was enabled to 
 get possession of the fund, and which, with- 
 out such concurrence, he could not have done. 
 Chancellor Harper, in his decree in the case 
 cited, says "it is to be observed, that, as 
 executors, they had nothing to do with the 
 land. There does not appear to have been 
 any necessity to sell for the payment of 
 debts ; and in procuring a sale of the land, 
 they seem to have volunteered to act as 
 trustees. And though it is said in the cases, 
 that when a trustee joins in a receipt, or con- 
 veyance, by which his co-trustee is enabled 
 to receive the money, he is not responsible, 
 because it was necessary for him to join for 
 conformity — yet, in this case, I think there 
 was no necessity for her to join ; there was 
 no necessity for her to volunteer as trustee." 
 The case of Brice v. Stokes, 11 Ves. 319, 
 decided by Lord Eldon, and cited by Chan- 
 cellor Harper, is an exceedingly strong one 
 in support of his view of the subject. 
 
 In Toller's Law of Executors, it is laid 
 down as a well settled rule, that "where, by an 
 act done by one executor, any part of the 
 estate comes to the hands of his co-executor, 
 the former will be answerable for tte latter, 
 in the same manner as he would have been 
 for a stranger whom he had enabled to re- 
 ceive it." Upon this rule the Court founded 
 its decree in Johnson v. Johnson, 2 Hill, 
 Eq. 289 [29 Am. Dec. 72]. See also the case 
 of Crosse v. Smith, 7 East, 246. 
 
 The case of Atcheson v. Robertson, 3 Rich. 
 Eq. 132 [55 Am. Dec. 634], was a ca.se of per- 
 sonal estate where there was a testamentary 
 authority to sell, and a necessity to sell for 
 the payment of legacies, and where both the 
 executors had equal authority. The act of 
 one of them would have been as authoritative 
 as the act of both. The I'eceipt of one, in 
 discharge of a debt due the estate, would 
 have been good, even though the one giving 
 the discharge on receiving the money, might 
 not have been in possession of the note, or 
 evidence of the debt. In that case, the two 
 executors concurred in the sale of the person- 
 
 *196 
 al estate. They both signed *the account 
 of sales returned to the Ordinary. They 
 afterwards divided between them the notes 
 which were given for the proceeds of the 
 sale. One of them died insolvent, having 
 committed a devastavit ; and it was decided 
 that the surviving executor was not account- 
 able for the devastavit of his co-executor. 
 But that case was clearly distinguished In 
 the judgment of the Court from that of 
 Mathews v. Mathews ; and the latter intend- 
 ed to be left intact. 
 
 The exception is sustained. It is ordered 
 and decreed, that Ker Boyce and John Ma- 
 grath do jointly account for the sum of $2,-
 
 BAILEY V. BOYCE 
 
 •19R 
 
 700, the prooeods of the sale of tlu' lot of the 
 testator, ill Market-stn-t't ; with interest 
 thereon, to he calculatfd in the same manner 
 as if the purchaser. Tliomas D. Fell, had 
 paid the purchase money according to the 
 terms of the sale, expressed in the agree- 
 ment. It is further ordered and de<-reed, that 
 the account he referred hack to Master Tup- 
 per, to he adjusted according to the prin- 
 ciples of this decree. 
 
 Defendant, Boyce, appealed for the fol- 
 lowing reasons: 
 
 1. That the default or miscarriage by 
 which the mortgage of Fell was lost, was not 
 coniniitted b.v him. 
 
 ■J. That he was not responsilile for the 
 other executor. If the other executcn* had 
 received the money and lost it, this defend- 
 jint would not have been l)ound. Tiiat the 
 other executor received the bond, and lost it 
 — and for the same reason, the defendant is 
 not bound for the loss of the bond. 
 
 3. That the complainant, Eliza Uritton, 
 ■was as much a party to the proceedings in 
 E<iuity. as this defendant, and defendant is 
 not bound to indemnify her against the mis- 
 ( arriage of that suit. 
 
 4. That the only act which he did was in- 
 nocent and lawful, for which he is not an- 
 swerable at all, and much less for remote 
 and consequential damages. 
 
 Petigru, Lesesne, for apitellant. cited Hill 
 on Trustees, 310; Attorney (Jeneral v. 
 liandall, 2 Eq. Ca. Abr. 742: .lacomb v. Har- 
 wood, 2 Ves. sen. 2G7 ; I^eigh v. Harry, 3 Atk. 
 
 *197 
 nS3 ; *Shipbrook v. Ilinchinltrook. lt> Ves. 
 477; Bacon v. Bacon, 5 Ves. :VM; Lewin on 
 Trustees, 241. 
 
 Brewster, contra, cited Wms. on Ex'ors., 
 1.j4S : UnderwocMl v. Stevens, 1 Meri. 712 ; 
 Saddler v. Ilohbes, 2 Bro. Ch. 11. 07, note c, 
 •OS note, Perkins' edit. ; Chambers v. Min- 
 chiu, 7 Ves. ISO: Xelson v. Carrington, 4 
 Munf. 332; Ilauser v. Shepmau, 2 Ired. Ch. 
 7)04; Clark v. Clark, 8 Paige, 303; 2 Story 
 Eq. § 1283, et se<i. 
 
 The opinion of the Court was di'livered by 
 
 DARGAN, Ch. It is very clear that the 
 infant daughter of George Henry was not 
 properly i-epresented in the proceedings in- 
 stituted by Thos. I). Fell, against the execu- 
 tors and devisees of the said (ieorge Henry, 
 lor the purpose of perfecting his title to the 
 lot which had been jtrevlously sold to him 
 l)y the executors. The infant devistv had 
 no guardian ad litem: but an answer was 
 filed in her name by the truste(>s aitjjointed 
 i»y the will. She would not lie itound by the 
 decree, for every formality re<piisite to bind 
 an infant, by the judgment of the Court is 
 wanting. Nevertlieless, it is uncpiestionable 
 that she may athrm the contract irregularly 
 made in her behalf, and seek tt recovery of 
 the purchase money. 
 
 It is not denied, but that the legal propo- 
 sitions by which the defendant, Boyce, is 
 made lialde in the circuit decrtv, are correct- 
 ly expounded. Nothing can be clearer upon 
 the authorities, than the |»rinciple, that 
 where one executor concurs with a devastat- 
 ing co-executor in an act by which the latter 
 gets pos.scssion of the funds wasted or lost, 
 and wiiich without such act of concurrence 
 could not have haiijiened, the con.sentiug, 
 though innocent, executor becomes resi)onsi- 
 bh' for him who has committed the waste or 
 default. 
 
 The law being thus clear, the only question 
 open to discussi(Ui is one of fact. Did Boyce 
 concur with his co-defendant, Magrath, in 
 the .sale and tlie judicial proceedings by 
 wliich the testator's real estate, devised to 
 his wife and infaiit daughter, was conveyed 
 to Fell/ If there be no such evidence, he 
 
 ♦198 
 
 must *lie discharged; but if there be satis- 
 factory evidence of such concurrence on his 
 part, he must be held accountable. 
 
 In the fli-st place, it is worthy of remark, 
 that there was no necessity to .sell this lot 
 for the payment of the testator's debts. The 
 personal assets in the hands of the execu- 
 tors were more than ample for this purpose. 
 I do not perceive that it would help the case 
 of the defendant, "Royce, if such necessity to 
 sell had existed: though some of the cases 
 seem to lay stress on this fact. Nor was 
 there any nei-essity for a partition at that 
 time. Neither of the two tenants in common 
 was moving ft>r a partition. It was, there- 
 fore, merely a voluntary and speculative 
 sale, brought about by parties who had no 
 interest or title in the prt)perty. 
 
 But the question, as T have said, is as to 
 the concurrence of Boyce. Tlie evidence on 
 this point is, to my mind, irresistible. I 
 will not comment upon it in detail, but will 
 attempt merely to group together the princi- 
 pal facts. John Phillips, who was ctfunsel 
 for Fell in the proceedings in Ecpiity, insti- 
 tuted for the purpo.se of iHM-fecting Fell's ti- 
 tle to the Market-street lot. says: "There 
 was a written agreement between Thomas 
 D. Fell and Iver Boyce, and John Magrath, 
 for the sale of this property by the said ex- 
 ecutors to the said IVU. This agreeiuent 
 was submitted to witness by Fell, upon which 
 he instituted the prot-eedings in ICtpiity to 
 obtain titles tt) said property." Mr. Phillii>s 
 also says, that "there was a mortgage to 
 John Magrath and Ker Boyce. as executors." 
 It is hardly to be presumed, that Fell would 
 have executed a mortgage of the lot, with- 
 out first having obtained titles or some writ- 
 ten agreement by which he thought the lot 
 was assured to him. 
 
 On discovering that the executors had no 
 power under the will to sell and convey the 
 real estate. Fell filed his bill, as has before 
 been stated. He made the executors and the 
 testator's widow and infant daughter (who 
 
 79
 
 *198 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 were devisees) defendants. He charges in 
 the bill, that the two executors had entered 
 into an agreement to sell him the lot for the 
 sum of $2,700, to Be paid in certain instal- 
 ments. He asserts that they had let him into 
 
 *199 
 *the possession, in pursuance of the agree- 
 ment. He prays that the Court would de- 
 cree him a title, in conformity with the terms 
 of the agreement. Tlie two executors filed 
 a joint answer: in which they admitted all 
 the allegations of the complainant's bill, and 
 concurred in the prayer thereof: that Fell 
 should have his title perfected by a decree of 
 the Court. Here it would seem, that there 
 was evidence of Boyce's concurrence, which 
 sophistry could not assail, nor scepticism 
 doubt. 
 
 But the zeal and the ingenuity of counsel, 
 has raised a question on this evidence. On 
 an examination of the joint answer of Boyce 
 and Magrath to the bill of Fell, which is of 
 record, it appears that. neitlTer of them sign- 
 ed the answer; nor was Oie answer sworn 
 to. It was signed "A. G. Magrath, defend- 
 ant's solicitor." It is contended that this 
 answer is no evidence of Boyce's concurrence, 
 because there is no evidence that A. G. Mag- 
 rath was his solicitor, or was authorized to 
 sign an answer for him. The negative parol 
 evidence, on this point, is very inconclusive. 
 The validity of the objection must, there- 
 fore, rest upon the abstract apropos! tion, 
 that a defendant is not bound by a decree 
 of the Court, unless his answer has been 
 sworn to, or signed, or there be proof that 
 the person who signed the answer for him 
 was, in fact, his solicitor. It requires but 
 little reflection to perceive, that the doctrine 
 contended for, would be exceedingly danger- 
 ous, if admitted. It would render null many 
 decrees, and" subvert many titles. I think it 
 has been a vei'y general practice, in many 
 parts of the State ; and, perhaps, in no place 
 more common, than in this city, to consider 
 the answer as sufficient, if signed by the de- 
 fendant's solicitor. If the answer was not 
 sworn to, it, of course, could not be evidence 
 for the defendant. And if the plaintiff de- 
 sired a discovery from the defendant, he 
 would except to the anstver for this omis- 
 sion. It so happens, that in the very case I 
 am now considering, there are several an- 
 swers not sworn to, or signed by the defend- 
 ants in person. I do not justify this loose 
 and reprehensible practice, which, doubt- 
 less, leads to many evils and abuses. These, 
 I can not now pause to notice. But what I 
 
 *200 
 would say, is this, *that where an answer 
 has been filed in the name of a defendant, 
 and purports to have been signed, by his 
 solicitor, in his behalf, and the case pro- 
 ceeds to a hearing and judgment, such a de- 
 fendant is bound by the decree, unless he 
 can shew that the solicitor, who undertook 
 to act for him in the premises, was, in truth, 
 
 80 
 
 not authorized to do so. Neither can such a 
 decree be questioned, or treated as void on a 
 collateral issue, but it must stand as the 
 decree of the Court, until it is set aside and 
 vacated, on a proceeding instituted specifical- 
 ly for that purpose. Every Court must be 
 presumed, when it proceeds to deliver its 
 judgment, to have adjudged the fact, that 
 the parties to be affected by its judgment, 
 were properly represented before it ; and 
 upon this presumption the decree must stand, 
 until it is reversed by a competent jurisdic- 
 tion. Chancellor Harper has considered this 
 subject in Winslow v. Barry, and we sug- 
 gest, that his opinion be reported in connec- 
 tion with this case.(o) 
 
 (a) The following is the opinion of Clianrel- 
 lor Harper, in the case of Winslow v. Barry. 
 
 Harper, Ch. But, with respect to Mrs. Wins- 
 low, it is urged, that a married woman can not 
 alienate her inheritance in any other manner 
 than that pointed out by the Act of Assembly 
 uptin tlie subject. But there is no doubt that 
 she may alienate it by the sanction and decree 
 of a Court of Equity, and the decree made by 
 the Court does sanction and confirm her con- 
 veyance, and settle the title of the parties. It 
 is argued, as I understand it, that she ought 
 not to be considered a party to that suit, be- 
 cause her answer does n«t appear to be signed 
 or sworn to: and authority was quoted to shew 
 that tliese are requisite. But this is a mis- 
 concei)tion. It is said, 4 Bridg. Dig. 2d, Title, 
 Answer VI., 122, referring to Bunb. 251, — that 
 "a defendant ought to sign his answer, or for 
 such default an injunction may be continued. 
 But quM're, whether if plaintiff takes an office 
 copy of the answer it is not a waiver of that 
 informality." It would seem from this that it 
 is for the plaintiff's security that the signing is 
 required. In Barley v. Pearson, 3 Atk. 439, it 
 was moved to suppress an answer for want ot 
 being signed. — I'pon a search for precedents it 
 was certified, that there were precedents both 
 ways ; some signed and some not signed by 
 the parties. In support of the motion was urged 
 the difficulty of convicting for perjury, in case 
 of a false answer. Lord Hardwicke acknowl- 
 edged the difficulty, but refused to make the or- 
 der, as there were precedents both ways. He 
 said, however, that he would consider of some 
 method of making the practice uniform in fu- 
 ture. This was in 174G; accordingly in 1748, 
 (2 Atk. 290,) he made an order reciting the 
 difficulty, ami directing in future all answers to 
 be signed by the party. There is a similar 
 rule in the Court of New York. Blake's Ch, 
 118. Now it might be well to enforce the order 
 of Dord Hardwicke, by directing the officer not 
 to file the answer until it is signed and sworn 
 to ; or by directing it, on motion, to be taken 
 from the file during the pendency of the suit. 
 But no one has conceived that this is ground, 
 for vacating a decree once pronounced. As to 
 the swearing, that is evidently a matter for the 
 security of the plaintiff, which he may waive^ 
 if he will. But surely, it is not for the defend- 
 ant, or those claiming under him, to take ad- 
 vantage of the informality of his own answer. 
 If, in point of fact, Mrs. Winslow was not 
 served with process, or apprised of the suit, 
 and did not authorize the aypearance by Coun- 
 sel, it is possible that she, or her heirs, a ma- 
 jority of whom, by the by, are before the Court 
 seeking to support the deed, might, by proper 
 proceedings for the purpose, and by shewing 
 
 *20l 
 those facts, set aside *the decree; if indeed shs 
 had not afterwards recognized the fact of her 
 being a party to the suit, by the deed of separt-
 
 PERRY V. LOGAN 
 
 *202 
 
 ♦201 
 
 •Ker Boyce, therefore, in this case must 
 be prosuint'd to have been a proper party In 
 Fell V. Ex'ors of Henry. And that Mr. Ma- 
 grath \va.s duly authorized by him, to repre- 
 sent him in the premise.s. Tliis is a pre.sunii> 
 tion well .supported by the evidenee of Mr. 
 Masrath, who .says, that he "was employed 
 to repre.sent the e.xecutors." He .says fur- 
 ther, that "he was eniph)yed in the usual 
 way to repre.seTit tlie.se partie.s." The con- 
 clusion of the Court is. that Koyce's eoiuur- 
 rence in the sale to Fell, has been sufficiently 
 proved: and the further conclusion of tlie 
 Court, as a matter of law. is. that he is li- 
 able for the ne;;lect, or omi.ssion of his co- 
 executor to rword the moitfraKe. from which 
 loss has accrued to the estate. 
 
 The Court is further of the opinion, that 
 there is merit in the third jirouiid of ai)iieal 
 of the defendant Boyce. Mrs. Eliza Henry 
 (testator's widow, now Mrs. Britton.) was 
 also an executrix of the will of fi!eor«e Hen- 
 ry. She was a i)arty to the bill of Thomas D. 
 Fell. She assented to and concurred in the 
 sale. The very same principle which suli- 
 jects Boyce to liability, oufrht to exempt him 
 from liability to her for her part of the 
 loss. 
 
 The judgment of this Court is, that the 
 defendant. Boyce. is to account only for the 
 moiety of the imrchase money of the .said 
 lot, which belonu'ed to Anna B. Bailey, the 
 Infant dnusriiter of the te.stator. Ceor«e Hen- 
 ry. And so much of the Circuit decree as 
 orders an account for the moiety of the pur- 
 chase money of said lot. that" was due to 
 the testator's widow (now. Mrs. Britton.) be 
 reversed : it is ordered and decreed, that the 
 
 *202 
 ♦Circuit decree lie so modified: that in all 
 other respects it be allirmed. and the appeal 
 be dismissed. 
 
 5 Rich. Eq. 202 
 
 BENJAMIN I'i:i{KY, Adm'r uf I.saac P. Droze. 
 
 V. BENJAMIN LUGAN and Others. 
 
 (Charleston, Jan. Term, l.Soo.) 
 
 [Descent ami Distribution «@=341 ) 
 
 t nder the statute of (listril)iitinns. mu-les 
 ami aunts of the ha!f-l.l.„Kl are entitled as n.-xt 
 <•! Kin, lu exclusion of tirst oousins of th.- whole- 
 uiood. 
 
 |E<1. Note.— For other oases, see I)es.-..nt and 
 jMstnbution. Cent. Di^-. § 11(5; IK-c. IM«. ^ 
 
 [I'eriirtuitics <@=34.] 
 
 Where a testator directs his real estate to 
 )e sol( l.y l„.s executors, and be.,u.'aths -the 
 . o.e,.ds. such ••j.roci^vls" heins: reRar.Ie.l in 
 M ' .• ' ,"** j"'''''"""'^^- a limitation over, upon 
 the ,l,.ath of the lesatee. "I.-avin;: no lawful is 
 Mie, IS not t(.o remote; and it n.ak.s nu dif- 
 ference that tho executors n.-Kle.t.-.l to sHI. and 
 rnat the le-atee occupird and enjoyed tiie land. 
 
 rl!!f-i^"^'\~]'y 1'^^''^ '"'««'^. •^•'•' Perpetuities", 
 Cent. 1)1^'. j^ ;u): Dec. Di^'. Cz34.] 
 
 DUNK IN 
 red. 
 
 and WAKDLAW, CC, concur- 
 
 JOHNSTO.X. Ch.. beins connected with 
 some of the i)Mrties. did not sit in the cause. 
 Decree modified. 
 
 tion of IS-J.,. i-,.,itiii« it. and hv what is called 
 her wi 1 Or they iniuht perhaps have a rernciv 
 against the counsH ^^■U„ si^w.ed without antlior- 
 t}. But. undoubtedly, while the decree stands 
 unrevers..,! upon th- re,-nrd. I am hound to re- 
 
 Darnel. Ihe pr..smpti..„ i.s. that all iMrsuns 
 were regularly made paities. who.sc rights ap- 
 I>ear to be d.cnrd up..n as parties. Anv other 
 practice would j.lainly be pernicious and im- 
 Piacticable. I ,n,ist then declare the risiits of 
 
 I oni'n'f r^ <^f "''''«''«^' according to the provi- 
 Bions of the deed. 
 
 Ex parte J. D. j,. Va.n-deksmisskv an.l 
 Lot ISA CATHARr.NA COLI.ETo.V. His Wife In 
 Eq January. 182!>: Decree Book ISL'T to is;{(> 
 
 Ai)i)!ication to take answer from nlT file |„.- 
 cause not signed or .sworn to. comes to,, "late 
 after decree. It seems, that if the proceedings 
 an. ac(Mii,.sced in. the defendant is hound. Be- 
 
 [Convcrsion (gzslf).] 
 
 con.S'''i*'-'''l" " ^''-^t'-'f'"- 'li't-fts his land to he 
 
 conNetr.1 int.. money, and. as ii,on,.v. to g,. to 
 
 the objects of his b..unty. the l,..,,;,..st iV in 
 i'-'iuity, regarded as one of personalty. 
 
 t-^^"^'-,m"^''~^''**'^^ '" Farmer v. Si.ell 11 Rich 
 lv|. ;j4..; Farr v. Cill.nath. Si s' (' ni.-{" 
 <olton V. (Jalliraith. ;;r. .s; c r,;;4 '^4'^ y' 
 !•;>(: Clarke v. Clarke. 4(i S C "4-'' "4 s f" 
 
 iillVc. m^sl'^E'lf ^'''tti;on ;: St;...;; 
 
 [Executors and Adininintrators €=>•»"-, ] 
 reje^^ed as'sfale."" "''^"""' "^ '''''' "'"'" «>^««t=^ 
 lEd Note— For other cases, .see Executois 
 vr'I-. -I^' i»'"'«trators. Cent. Dig. 5i§ 7SJ»-.S()0. S02 
 M>... s(i;»: Dpc. D.g. (S=3i.>i.'.-,. ] 
 
 I Willx <©=>.-.<»;{.] 
 
 Te.stat.ix. de.laring that she had given Jane 
 one of h.-r several legatees, l.ss than tl... others 
 liiects ea.h of h,.r other legatees to i^ive Jane 
 us or her bond for .$1.-,U. and charges their 
 legac.es. respectively, with the pavni.-nt of that 
 amount to Jane, in case l.onds shouhl n..t be 
 giv.-n: alter the (hath of testatrix the l.unds 
 were given :-//c/</, that the bon.ls wnc not sub- 
 ject to the i.rovisiou of a codicil to the will 
 which (lircted that ••whatever pn.pertv" the 
 testatrix ha.l given three named legatees. Jane 
 I'eing one, should, in a certain event go to 
 others. *" 
 
 1^1 !''*'< ^vo--~?r^ ^^V^- <-"«•'«• see Wills. Cent. 
 l>ig. !> l.Ud ; Dec. Dig. <s=>r){);5.] 
 
 (Ili7/.v <s=.".!t4.j 
 
 Devis.. to three, and if all ••shall .11.- with- 
 out lawful i.ssue, and l...forc thev arrive at the 
 age .pf twenty-...!.- year.s.- then "..v.-r: all .li.-d 
 without issue. tw.> l..-f...e arrivi.ii; at age an.l 
 on.- after:-//c/./. that the limitation ha.l failed 
 -tl... d..ul.l.- .•..ntmgeny „„ which it was to 
 take effect 11. tt having happened. 
 
 tJ^'^'I: ^.y}*:~K''^ VM""'" •"'••'•■^. ^^^ WiIU, cent. 
 Dig. jj 1.514 ; Dec. Dig. <©=).-,i>4.] 
 
 [H'i7/,<t C=»,-.47.] 
 
 M.-.|U.-st to seven r.-si.hiary l.-gat.-es -.'.Miiillv 
 to h.- .livi.l.'.l ainonust them f..r.-v..r"' : ..ne hav- 
 ing .li.'.l l,.-fore fstator. /„•/./. that his share had 
 lai.s.Ml and I.e.-.. me intestat.- property. 
 
 I Ed. N..te.— For other cas.-s. s.-e Wills Cent 
 Dig. S n7!»: Dec. Dig. <©=5r>47.] 
 [iri7/.« <©=(i02.] 
 
 .. ,. i|<'«|i'!'><t to one absolutely, and sh.mld he 
 '■"' b-av..ig n.i lawful issue." th.-n to four per- 
 
 ^uZu%^-T ''' ^"^"'^ '"P''^ ^"^ KEV-NUMHER lu uU Key-Numbered Digests and I^^^^s 
 
 ol
 
 *202 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 sons, naming them, "to be equally divided be- 
 
 *203 
 tween" them: one of the four died *before the 
 testator:— //eW, that, as to the one-fourth which 
 he would have been entitled to upon the happen- 
 ing of the contingency, had he survived the 
 testator, the estate of the first taker was in- 
 defeasible. 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. §§ 1351-1359; Dec. Dig. <®=5602.J 
 
 [Wills <©=5602.] 
 
 Where an estate is given to one absolutely 
 in the first instance, and is made defeasible upon 
 a contingency, on the happening of which it 
 is to go over to a third person, if such limita- 
 tion over cannot take effect, as, for instance, 
 because of the death of such third person be- 
 fore the testator, the estate of the first taker is 
 indefeasible. 
 
 [Ed. Note.— For other cases, see Wills, Cent. 
 Dig. § 1357 ; Dec. Dig. «S=^U02.] 
 
 This cause was heard at Colleton, extra 
 sittings, July, 1852, before Dargan, Ch., who 
 made the following decree : 
 
 Dargan, Ch. Isaac P. Droze departed this 
 life in the month of October, A. D., 1S50, in- 
 testate, and in the possession of real and 
 personal estate. The complainant, Benjamin 
 Perry, is his administrator. The intestate 
 left an uncle of the half-blood, to wit, Ben- 
 jamin S. Logan, I'esiding in the State of 
 Alabama ; an aunt of the half-blood, viz., 
 Martha M. Chipman, wife of Henry Chip- 
 man, residing in the State of Michigan ; and 
 various other relations claiming to be cousins 
 german of the whole blood, who are named 
 in the bill, and whose names it is unneces- 
 sary that I should particularly mention. 
 
 All these persons are parties to the bill ; 
 and their relationship, as therein stated, is 
 admitted to be correct. The question be- 
 tween these parties is, whether the uncle and 
 aunt of the half-blood are entitled to take 
 in exclusion of cousins german, who are the 
 children of the intestate's deceased uncles 
 and aunts of the whole-blood. 
 
 Independent of any authority in the way 
 of a judicial decision, I should have very 
 little difficulty in coming to a conclusion upon 
 this question. The case must, of course, be 
 determined by the statute of distributions. 
 It obviously falls under the 7th, Sth, and 9th 
 sections of the first clause, which are as 
 follows : 
 
 "7th. If the intestate shall leave no lineal 
 descendant, father, mother, brother, or sister 
 of the whole-blood, or their children — or 
 brother, or sister of the half-blood, or lineal 
 ancestor, then the widow shall take two- 
 thirds of the estate, and the remainder shall 
 descend to the next of kin. 
 
 "Sth. If the intestate shall leave no widow, 
 *204 
 the provision *made for her, shall go, as 
 the rest of the estate is directed to be dis- 
 tributed in the respective clauses, in which 
 the widow is provided for. 
 
 "9th. In reckoning the degrees of kindred, 
 the computation shall begin with the intes- 
 
 tate, and be continued up to the common an- 
 cestor, and thence down to the person claim- 
 ing kindred, inclusively, each step inclusively 
 being reckoned as one degree." 
 
 Now, the intestate, Isaac P. Druze, left 
 no relations of the description mentioned in 
 the seventh clause ; and it follows, as a mat- 
 ter of course, that his estate must be dis- 
 tributed in the manner directed in the eighth 
 and ninth clauses. In ascertaining who are 
 the next of kin, the half-blood come in equal- 
 ly with the whole-blood. (2 Bl. Com. 215, 
 216; 2 Id. 504, 505; Guerard v. Guerard, 4 
 Des. 405, note.) The distinction between 
 these two classes of heirs is dropped in read- 
 ing the statute, as soon as we get through 
 those cases which are specifically provided 
 for. Having proceeded thus far, the rest fol- 
 lows. Adopting the statutory mode of com- 
 putation, (which was that of the civil law.) 
 the conclusion cannot be avoided, that an 
 uncle or aunt, whether of the whole or half- 
 blood, is one degree nearer to the intestate 
 than a cousin german. And the surprise 
 with me is, that a doubt should exist, after 
 the principle was settled, that, as next of 
 kin, the whole and half-blood should come 
 in pari passu. But the question has been 
 settled long since by judicial interpretation. 
 Karwon v. Lowndes, 2 Des. 210. And. more 
 recently, in Edwards v. Barksdale, 2 Hill, 
 Eq. 416. 
 
 The Court is of the opinion that Benjamin 
 S. Logan, the intestate's uncle of the half- 
 blood, and INIartha M. Chipman, the intes- 
 tate's aunt of the half-blood, are entitled to 
 the whole of the said intestate's real and per- 
 sonal property, equally to be divided between 
 them. And it is so ordered and decreed. 
 
 And it is further ordered and decreed, that 
 they have leave to apply, at the foot of this 
 decree, for a writ of partition, and for 
 all orders that may be necessary to carry 
 this decree into effect. 
 
 Another question arises in this case. How 
 *205 
 much of the estate *of which the intestate 
 Isaac P. Droze died seized and possessed, 
 was he entitled to transmit to his next of 
 kin, or heirs at law. It is admitted, that 
 some portion of his estate was derived under 
 the will of his grand-mother, Mary E. Droze. 
 He thus derived the three negroes, Frank. 
 William, and Maria, set forth in the inven- 
 tory of the intestate's estate, and another 
 negro, named Gabriel, who was sold by the 
 intestate in his lifetime. The testatrix, Mary 
 E. Droze, having given various legacies to 
 her seven grand-children, in words which 
 would convey an absolute estate ; by a codi- 
 cil thereto, and of the same date, she pro- 
 vided as follows : 
 
 "Should my grand-children, Isaac P. 
 Droze, John L. Droze, and Jane L. Droze, 
 die leaving no lawful issue, it is my w-ill, 
 that whatever property I have given them. 
 
 82 
 
 ^ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inde.\e3
 
 PERRY V. LOGAN 
 
 ♦207 
 
 be equally dividod between my grand-chil- 
 dren, Josiah Perry. Iteiijamin Perry, Mary 
 E. Waring, and Eliza E. Bass, to tbem and 
 their heirs forever.'Y«^. 
 *206 
 *The controversy relates both to personal 
 and to real estiite. In the jud;;inent of tlie 
 Court, the words of the codiiil. in refertMice 
 to the personal property, are siillicieiit to 
 create, and do create, a ;;ood limitation over 
 to the Perrys, on the happt'iiinj; of the con- 
 tin;;ency upon which it was made to depend. 
 The word "leaving'' (puiiilied the fiencrality 
 of the word "issue," and malies tlu> limita- 
 tion to depend upon the first talicr dying 
 without issue living at his death. 
 
 (fl» Tlio following are copit's of tin* will and 
 codicil of Marv E. Droze. Tiicv both bore date 
 .March -'li, ISL'4: 
 
 1, Mary K. I )tozo. of the Parish of St. George, 
 in tiic State aforesaid, Ix'in^i of sound and dis- 
 posing mind, nieniory. and nnderstaiulinu'. do 
 make my last will and testament, as follows: 
 I give and becpieath unto my grand-daugiiter, 
 Mary E. Waring, the wife of .Joseph loor War- 
 ing, tlio folliiwintr negro slaves, to wit: Peggy, 
 Rachel, Siljliy. Ken. Toliy. and Charlotte, to- 
 gether with tlie future issue, and increase of the 
 females, from the date of this, my will. fr)rover, 
 her executors, administrators and assiiins for- 
 ever. I also give to my said grand-daugliter, 
 forever, my draught horse, called I>iatnond. 
 -VIso, I give and be(iueatli the folluwing slaves, 
 to wit: Maria, Andrew, Cinderella. IMward, 
 Amelia, and I'riscilla, to my grand-daughter, 
 Eliza E. Pass, wife of Thomas E. Pass, for 
 and during her natural life, for her sole and 
 separate u.se : ai!d from and after her death 
 1 give and lie(|ueath the said last mentioned 
 slaves to such child or children, as my said 
 gran(i-daui;hter. Eliza E. Pass, shall have living 
 at the time of her death, (the lawfully begotten 
 issue, however, of any deceased child or cldl- 
 <lren shall take the slaves tliat his. lier, or their 
 parent or parents would he entitled to, if living 
 at the time of the deatli of tlie said Eliza E. 
 Pass,) to them, their executors, administrators, 
 and assigns. It is also my will, that the futuie 
 issue and increase of tlie said slaves be(|U( atlicd 
 to my said granddaughter. Eliza K. Pass, from 
 the date of this, my will, shall be included in 
 the said beciuest, to her and iier children. Also, 
 1 give and beijueatli ail my houselKdd furniture 
 to my said two grand-daugliters. Mar.\' 1'. War- 
 ing and Eliza I''.. P>ass. to be equally (li\i(le<l be- 
 tween them, forever. Also, I gi\e and l)e(picath 
 unto my great-grand-daugliter, Mary E. I'erry, 
 daughter of my grand-son, .losiali Perry, all my 
 stock of cattle, forever. Also. 1 give and be- 
 iiueath unto my grand-sou, .losiah Perry, his 
 executors, administrators, and assigns, forever, 
 my waiting-man, Peter, my driver, .Ned, and 
 Moses, son of Priscilln. Also, 1 give and be- 
 queath to my grand-son, Penjannn Perry, liis 
 I'xecutors, administrators, and assigns, forever, 
 the following negroes, to wit: Sam, Cain, and 
 1 >elia. with lier future issue and increase, from 
 the date of this, my will. Also, I give and he- 
 (|ueatli to my grand-son. Isaac P. I)roze, his 
 executors, atlministrators, .-uid assigns, forever, 
 my negroes l""raiik. I»ick, and Hannah, with lier 
 future issue and increase from the date of this, 
 my will. Also, I givo and be(iueatli to my 
 graud-sou, John L. l>roze, my negroes (Jabriel, 
 llayne, and Clarissa, with their future issue and 
 
 *206 
 ♦increase, from the date cf this, my will, to him, 
 his executors, administrators and assigns, for- 
 ever. Also I give and beqiieatli unto my grand- 
 daughter, Jane L. Druze, Biuuh, llagar's daugh- 
 
 John L. Droze and Jane E. Droze each 
 pre-deceased I.saae P. Droze, leaving no is- 
 sue. On the death of Jane intestate, her 
 brothers John and Isaac, who survived her, 
 being the only persons intereste*!, divided 
 the estate between them without an admin- 
 l.stration. 
 
 On the death of John, his l)rother I.saae, 
 his sole heir at law and dlstriiiutee. took 
 possession of all his estate without an ad- 
 ministration. Thus all the jn-operty derived 
 by the Drozes from the estate of Mary E. 
 I>roze, cent«'red in the p(»s.sessl(>n of the 
 coinplaimmt's intestate. Isaac P. Droze. And 
 the contingency having happened upon whi<-h 
 
 *207 
 it was to go over to the 'iVrry family, the 
 adndnistrator must deliver to the remainder- 
 men such of the property as is in esse, and 
 must account for such portitai thereof as is 
 destroyed, or is not forthcttming. I moan 
 the persomil estate; for I give a ilitYcreiit 
 construction to the will as to the real estate. 
 I am al.so of the opinion, that all tlie per- 
 sonal property which passed to the Drozes 
 under the residuary clause of Mary E. 
 Droze's will, including their share of the 
 lapsed legacy to Josiah Perry, is subject to 
 the linntation, in favor of the F^errys. cre- 
 ated by the codicil. And thi" same having 
 been paid over to Isaac P. Droze by J. J. War- 
 ing, the executor of Mary E. L>roze. (John 
 
 ter. to her, her executors, administrators, and 
 assigns, forever. In conseipience of my iiaving 
 given to my said grand-daughter. Jane L. Droze, 
 but one negro, I will and direct that m\ said 
 grand-children. .Josiah Pcrrv. Penianiin Perry, 
 Mary E. Waring. Eliza E. Pass. Isaac P. Droze, 
 and .lohn L. l)roze, do give unto mv executors, 
 hereinafter named, their sev«'ral ami respective 
 bonds, with good security, conditioned for the 
 payment of the sum of one hundrec! and fifty 
 dollars, with interest from the day of my death, 
 which said bonds shall severally and respective- 
 ly be maile payable to the said Jane L. Droze. 
 (m her attaining the age of eigliteen years, or 
 day of marriage. And I do hereby charge the 
 several and respective legat'ies bequeathed to my 
 said grand-children, Josiali Perry. Penjaniin 
 Perry, »Mary E. Waring, Eliza E. Pass. Isaac 
 P. Droze, and John h. Droze with the p.i\inent 
 of the said smn of one hundred and tifty dol- 
 lars each, with inti-rest as afores.iid, in case 
 from any reas<in such bond and security shall 
 not be given. Also, I will ami direct that my 
 said seven giand-cliildren shall pay each an 
 equal pro|>ortion of the debts that I may owe j^t 
 the tinu' of my decease. 
 
 All the ri'st, residue and remainder of my es- 
 tate, real aii<l personal. I direct to be sold and 
 disposed »)f by my executors, as soon as possible 
 after my deatli; and the proceeds 1 give and be- 
 ((Ueatli to my said seven grand children, eipially 
 to be divided amongst tliem forever. 
 
 I^astly. I nominate an I appoint my ::randson, 
 .Josiah Perry and tin' said Joseph loor Waring, 
 executors of this, my last will and testament, 
 hereby revoking all other ami former wills by 
 me. at iiny time heretofore made. 
 
 Codiiil. .*^llould my grand-children. Isaac P. 
 Droze, .liihn P. Droze and Jane P. Droze die, 
 leaving no lawful issue, it is my will, that wh.it- 
 ever property I liave given them, be equally 
 divided between my grand-children, .Tosiali Per- 
 ry. Benjamin Perry, Mary E. Waring, and 
 Eliza E. Bass, to them and their heirs forever. 
 
 83
 
 *207 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 and Jane Droze having died before they re- 
 ceived their legacies,) the estate of the said 
 Isaac P. Droze must account for the prop- 
 erty so received by him. And it is so or- 
 dered and decreed. 
 
 And it is further ordered and decreed, that 
 the slaves and their issue, and the other 
 chattels now in existence, that Isaac P. 
 Droze, John L. Droze, and Jane L. Droze de- 
 rived under the specific legacies given to 
 them by the will of Mary E Droze, as also 
 all the slaves and chattels now in existence, 
 which they derived under the residuary 
 clause of the said will, be delivered up by 
 Benjamin Perry, the administrator of Isaac 
 P. Droze, to be equally divided among Eliza 
 E. Bass, Benjamin Peri-y, (the complainant,) 
 and J. J. Waring, the administrator, and E. 
 Waring. It is further ordered and decreed, 
 that the administrator of the said Isaac P. 
 Droze do account to the persons last named, 
 (himself among the number,) for the value 
 of the negro Gabriel, sold by the said Isaac 
 P. Droze in his life time ; the value of Ga- 
 briel to be estimated at the death of the 
 said Isaac P. Droze ; and for the interest, 
 on the estimated value of Gabriel, from the 
 death of the said Isaac P. Droze. And that 
 the said administrator do, in like manner, 
 account for the value of any other negro 
 of the stock which Isaac P. Droze derived 
 from the estate of Mary E. Droze, which 
 he may have sold ; and that he do, in like 
 manner, account for any moneys, or choses 
 in action, which Isaac P. Droze may have 
 received from the estate of Mary E. Droze, 
 
 *208 
 under the residuary clause of her *vvill ; and 
 that he account for the hire of the negroes 
 subject to the limitation of the will, from 
 the first day of January next, after the 
 death of the said Isaac P. Droze, namely, 
 from the 1st January, 1851. 
 
 I must now direct my attention to other 
 questions made in the pleading. One of 
 the tracts of land in the possession of Isaac 
 P. Droze at his death, namely: "the settle- 
 ment place, containing 714 acres," more 
 particularly described in the bill, was deriv- 
 ed under the residuary clause of Mary E. 
 Droze's will ; and it is contended, that this 
 property also, now passes to the Perrys, un- 
 der the limitation of the codicil. A limitation 
 over, if the first taker should die without leav- 
 ing issue, or leaving no issue, has a different 
 construction, and is valid or invalid according 
 as it may relate to personal or real estate. 
 Where real estate is the subject of the limita- 
 tion, it is construed to be after an indefinite 
 failure of issue, and fails for remoteness. The 
 word "leaving,"' in such a case, is not re- 
 strictive. Forth V. Chapman, 1 P. W'ms. 
 665; Mazyck v. Vanderhorst, Bail. Eq. 48. 
 It is the opinion of the Court, that the lim- 
 itation fails as to the real estate, and that 
 the tract of land in question, was the abso- 
 lute estate of Isaac P. Droze, aud descends 
 
 84 
 
 to his heirs at law. And it is so ordered and 
 decreed. 
 
 A further question arises under the fol- 
 lowing circumstances. In the will of Mary 
 E. Droze is a clause in these words: "In 
 consequence of my having given my grand- 
 daughter, Jane L. Droze, but one negro, I 
 will and direct that my said grand-children, 
 Josiah Perry, Benjamin Perry, Mary E. War- 
 ing, Eliza E. Bass, Isaac P. Droze, and John 
 L. Droze, do give to my executors herein- 
 after named, their several and respective 
 bonds, with good security, conditioned for 
 the payment of the sum of one liundred and 
 fifty dollars, with interest from the day of 
 my death ; which said bonds shall severally 
 and respectively be made payable to the 
 said Jane L. Droze, on her attaining the 
 age of eighteen years, or day of marriage. 
 And I do hereby charge the several and 
 respective legacies bequeathed to my said 
 grand-children, Josiah Perry, Benjamin Per- 
 
 *209 
 ry, Mary E. Waring, * Eliza E. Bass, Isaac 
 P. Droze, and John L. Droze, with the pay- 
 ment of the said sum of one hundred and 
 fifty dollars each, with interest as afore- 
 said, in case, from any teason, such bond 
 and security shall not be given." Josiah 
 Perry pre-deceased the testatrix. His lega- 
 cy lapsed and was distributed under the 
 residuary clause. John L. Droze and Jane 
 L. Droze Iwth died befoi'e the settlement 
 of the estate of Mary E. Droze, and before 
 this part of the will was carried into execu- 
 tion. The rights of Jane, and the obligations 
 of John and of Isaac, were thus all com- 
 bined in the person of the latter. There 
 remained, the obligations imposed by the 
 will upon Benjamin Perry, Mary E. Waring, 
 and Eliza E. Bass, to be carried into effect. 
 The executor, J. J. Waring, took the bond 
 of Benjamin Perry for $150 ; as also that 
 of Eliza E. Bass for the like sum, according 
 to the direction of the will, and delivered 
 them to Isaac P. Droze as tlie sole distrib- 
 utee of John and Jane, on his attaining the 
 age of twenty-one years ; and in like man- 
 ner, and at the same time, delivered hia 
 own bond to Isaac P. Droze for $150, on 
 account of the charge created by the will 
 upon the legac.y given to his wife, Mary E. 
 Waring. These three bonds have been sat- 
 isfied, by payments made to Isaac P. Droze 
 in his life time. And as the testatrix in the 
 codicil desires, that should her grand-chil- 
 dren, John, Jane, and Isaac Droze, die leav- 
 ing no issue, whatever property she had 
 given them, should be equally divided be- 
 tween her grand-children, Josiah Perry, &c., 
 it is contended, that the amounts paid upon 
 these tliree bonds fall within the same cate- 
 gory as the other property given to the 
 Droze family, and are in like manner subject 
 to the limitation of the will. I confess, that 
 my mind has wavered oii this question. I 
 have had difficulties. I, at first, tfid a
 
 PERRY V. LOGAN 
 
 IV. 
 
 «trong conviction, that the prooeed.s of tliose 
 bonds were not subject to the limitation of 
 the will; suhseciucnt reflection has shaken 
 the strenjrth of this conviction. I am still 
 inclined, thouj^h dnulitiiiKly, to my orijiinnl 
 opinion. The proceeds (»f these bonds con- 
 stituted no part of the estate of the testa- 
 trix. It was over and l»eyond tlie total an- 
 grei^ate of her estate; all of which she had 
 
 ♦210 
 <lispo.sed of by the specific, *and residuary 
 clauses of her will. And I am impressed, 
 tliiit the testatri.K intended only to limit "all 
 the property which she had given" out of 
 lier own estate, and not tlie sums, which, for 
 tlie purpose of equalizinjj; the deficiency of 
 the lejracy to .Tane L. Droze, she had charwd 
 upon the legacies of all her other legatees. 
 It is the opinion of the Court, that the pro- 
 ceeds of these bonds do not pass under the 
 limitation created by the codicil of the will. 
 And it is so ordered and decreed. 
 
 One further question remains. A consid- 
 erable portion of the proi)erty of which Isaac 
 P. Droze died seized and possessed was de- 
 rived under the will of his father, Hugh 
 I»roze. This testator, speaking in his will, 
 after various dispositions of his property in 
 favor of his three children, .Tohn, .lane, and 
 Isaac Droze, declares as follows: "Trovided 
 either of my children shall die, liefore he 
 or she shall arrive at the age of twenty- 
 one .vears, and without lawful issue, then, 
 his or her share shall go to the survivor 
 or survivors, in equal proportions; but pro- 
 vided all my said children shall die without 
 lawful issue, and before they arrive at the 
 age of twent.v-one years. I give and devise 
 the same lands and tenements to Josiah 
 Perry. Mary Elizabeth Waring, lienjanun 
 IVrry. and Elizabeth Esther Perry, the chil- 
 dren of Isaac and Eliza Perry, deceased;"' 
 and in a subsequent part of the will, siieak- 
 ing of the personal property, with language 
 slightly variant, he declares as follows: 
 '"Provided either of my said children shall 
 die without lawful issue, or bef<u"<> he (tv 
 she shall attain the age of twenty-one years, 
 then, his or her portion shall be equally di- 
 vided between those who shall reach the age 
 of twenty-one years; l>ut provided eitUor 
 of my said children shall die l)efore tlif agn 
 of twenty-one years, leaving lawful issue, 
 then the share of such deceased child shall 
 go to his or her issue iMiually. when they 
 shall attain the age of twent.v-one: the in- 
 crease, in the mean time, to be devoted to 
 their maintenance and education. Put. if all 
 n'v said children should die without issue, 
 and under the age of twenty-one ye.-irs, then 
 the whole of my personal estate- shall C(» to 
 .^osiah Perry, Mary Elizabeth Warini:, Pen- 
 
 •211 
 .1an)»n Terry, and Eliz.i *Esther IVrry, the 
 children of Isaac and Eliza I'erry, deceased, 
 their executors, administrators, and assi.'us." 
 
 The children of Hugh Droze have uU died 
 
 ' without issue. Two of them, John and Jane, 
 I died under the age of twenty-one years; but 
 I Isaac, the survivor, lived some time after he 
 attained that age. It is, notwithstanding, 
 claime<l on the part of Penjamin Perry. Mrs. 
 Pass, and the represn-ntatlves of Mrs. War- 
 ing, that the limitation now takes eflfect in 
 their favoi. The contingencies u|)on which 
 tliese parties were to take, was a double one. 
 Not only were all the children of the testa- 
 tor to die without issue, but they were all 
 to die under the age of twenty-one years, be- 
 fore the lindtation in favor of the present 
 claimants <-onld take effect. The estate 
 which the children of the testator took under 
 the will, was a fee, defeasible upon a com- 
 plicated condition: all of which has not hap- 
 luMied. It has been urged in the argument, 
 that the word "and," should be construe<l 
 "or." with the view, it is sjiid, of carrying 
 into effect the intention of the testator. 
 There is no doubt of the propriety of this 
 kind of construction, in cases calling for it. 
 It is to be remarke<l. however, that the disjunc- 
 tive conjunction is more frequently construed 
 into copulative, than the c<M)verse. The 
 Court should cortainl.v be cautious in alter- 
 ing, by constnictiou. the language of a will, 
 where the eflfect would be to cut down an es- 
 tate previously given. This mode of inter- 
 preting wills is a very delicate exercise of 
 jurisdiction, and should only he resorted to 
 for the inirpose of carrying into eflfect rtie 
 manifest intention of the testator — such man- 
 ifest intention being made clear by a strong 
 explanatory context. I see nothing in this 
 will, to justify a resort to this mode of con- 
 struction; nothing to shew that the intention 
 of the testator, or the general scheme of his 
 will, was dififerent from tlwt which the |)lain 
 sense of the words employed wmild import. 
 It is my opinion, therefore, that the condition 
 on which the limitation was to take eflect. 
 has not happened; and that the property 
 which Isaac P. r>roze derived from the estate 
 of his lather. Hugh Droze. is the absolute 
 estate of the sjiid Isaac I'. Droze. and is sub- 
 
 •212 
 ject to i)artirion among *his heirs at law, and 
 distribut«'es herein before <ieclared. And it 
 I is «■•',) »>rderi^T. -in,! Jt is further orderetl and 
 • decreed, that the costs of suit be jtaiil out 
 of tlie as.spts of the estate of Isaac- I'. Droze. 
 The remainder-men under the will ami cod- 
 icil. ap])ealed on the grounds 
 
 1. Pecause, his Honor erred in decreeing. 
 tJiat the proceeds of the bonds. directe<l l)y 
 the will of Mary E. Droze, to he given by her 
 legatees to Jane Droze. and which were i)aid 
 to Isaac- r. Droze, did not i>ass tinder the 
 rimitation. created by the c-odicil to her will. 
 
 2. P(>rati.se, if the will is not an eqjdtable 
 conversion of the land info money, then it is 
 respectfully subnutted, that his Honor erred 
 in dec-reeing. that the liuntation of the will 
 and codic-il of Mary E. Droze. as to the real 
 estate, falls, and that the same became the 
 absolute estate of Isaac P. Droze. 
 
 85
 
 *212 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 3. Because, by the residuary clause of 
 Mary E. Droze's will, her executors are 
 directed to sell her lauds, as soon after 
 her death as possible, and the proceeds of 
 the sale are bequeathed to her grand chil- 
 dren, which is an equitable conversion of 
 the said lands into money, and therefore, it 
 is submitted, that his Honor erred in decree- 
 ing, that the said lands became the absolute 
 property of the said Isaac P. Droze, by rea- 
 son of the remoteness of the limitation over. 
 
 4. Because, the lands of the testatrix being 
 converted by her will into money, will pass, 
 with the rest of her personal estate, as per- 
 sonalty, under the limitation in the codicil to 
 her will, to the persons to whom she has be- 
 queathed it in remainder; and his Honor 
 should have so decreed and ordered on ac- 
 count for the rents and profits of the land, or 
 for interest on the value thereof. 
 
 5. Because, his Honor erred in decreeing 
 an account against the estate of Isaac P. 
 Droze, only for such slaves as were sold by 
 him, as tenant for life, whereas, it is respect- 
 fully submitted, that the remainder-men, are 
 
 *213 
 
 entitled to « full account for all *slaves or 
 other property, that are not forthcoming or 
 produced, either l)y reason of a sale thereof, 
 by tenant for life, or by reason of their death 
 or destruction, from negligence, or wilful 
 abuse, and ill treatment, or from other caus- 
 es. 
 
 6. Because, his Honor erred in decreeing, 
 that all the property derived by Isaac P. Droze 
 under the will of Hugh Droze, was his ab- 
 solute estate. 
 
 The first cousins of the whole-blood, ap- 
 pealed on the ground. 
 
 Because, his Honor erred in decreeing, that 
 Benjamin S. Logan and Martha M. Chipman, 
 wife of Henry ('hipman, as uncle and aunt 
 of the half-blood, are entitled to the whole 
 estate of the intestate, Isaac P. Droze, in ex- 
 clusion of the first cousins of the whole-blood. 
 
 Benjamin S. Logan and Henry Chipman 
 and his wife Martha, appealed, on the 
 grounds, 
 
 1, Because, it is respectfully submitted, 
 that, as the testatrix, Mary E. Droze, devised 
 the residue of her estate to her seven grand- 
 children, equally to be divided among them, 
 and one of them, to wit: Josiah Perry, died 
 in the lifetime of the testatrix ; the effect is, 
 that the testatrix died intestate as to one 
 seventh-j)art of the residue of her estate, and 
 the said one-seventh part vested in Benjamin 
 S. Perry, Mary E. Waring, Eliza E. Bass, 
 Isaac Perry Droze, John L. Droze and Jane 
 L. Droze absolutely ; and that as a conse- 
 quence of these propositions, a distinction 
 should be made between that which Isaac P. 
 Droze took as a residuary legatee, and that 
 which he took as one of the next of kin ; and 
 the same distinction applies to those parts of 
 the estate which he took through his brother 
 and his sister, and that so much as came to 
 8G 
 
 [ them, in the character of next of kin, is not 
 
 j subject to any limitation over. 
 
 I 2. Because, a distinction is also to be made 
 
 j as to the legacies, residuary and specific, be- 
 queathed to Isaac Perry Droze, for, in the 
 event that has happened, (that of his dying 
 without leaving issue,) one-fourth part of the 
 same is given over to Josiah Perry ; but as 
 Josiah Perry died in the lifetime of testatrix, 
 
 *214 
 the *bequest to him fails, and the estate of 
 Isaac Perry Droze in that one-fourth part is 
 not dis'ested; and the same will hold good as 
 to the interests which Isaac Perrj' Droze took 
 through his brother and sister. The conse- 
 quence of which propositions is, that the rep- 
 resentatives of Isaac Perry Droze should ac- 
 count to Benjamin Perry, Mary E. Waring 
 and Eliza E. Bass, for three-fourth parts of 
 those legacies bequeathed to him and his 
 brother and sister, and no more. 
 
 Perry, Treville, for remainder-men. 
 Henderson, Petigru, for Logan and Chip- 
 man and wife. 
 
 Edwards, for first cousins. 
 
 The opinion of the Court was delivered by 
 
 DARGAN, Ch. The Circuit decree in this 
 case decides many questions ; and the ap- 
 peals of the different parties have involved 
 the necessity on the part of this Court of re- 
 viewing them all. — It will not be necessary, 
 however, that I should discuss all the ques- 
 tions raised in the appeal, or consider them 
 seriatim. 
 
 The testatrix, Mary E. Droze, after having 
 given specific legacies to her grand-children, 
 Isaac P. Droze, John L. Droze, Jane L. Droze, 
 and to others, by the residuary clause of her 
 will, devised and bequeathed as follows: "All 
 the rest, residue and remainder of my es- 
 tate, real and personal, I direct to be sold 
 and disposed of by my executors as soon as 
 jiossible after my death ; and the proceeds I 
 give and bequeath to my said seven grand- 
 children, equally to be divided amongst them, 
 forever."' And by the codicil of her will, she 
 declared her intentions in regard to the Droz- 
 es, in manner and form as follows: "Should 
 my grand-children, Isaac P. Droze, John L. 
 Droze, and Jane L. Droze, die leaving no law- 
 ful issue, it is my will, that whatever proper- 
 ty I have given them, be equally divided be- 
 tween my grand-children Josiah Perry, Ben- 
 jamin Perry, Mary E. Waring, and Eliza E. 
 Baas, to them and their heirs forever." 
 
 Upon the question of limitation arising on 
 the construction of the codicil, the Circuit 
 Coui't held this language: "The controversy 
 relates both to personal and real estate. In 
 
 *215 
 the judgment of *the Coiirt, the words of the 
 codicil in reference to the personal property 
 are sufficient to create and do create a good 
 limitation over to the Perrys, on the happen- 
 ing of the contingency upon which it was made 
 to depend. The word 'leaving,' qualified the
 
 PEKllY V. LOGAN 
 
 n: 
 
 generality of the word 'issue.' and makes the 
 limitation t<> dciiend upon the first taker dyin;: 
 witliout issue living at the time of his death." 
 The Circuit decree proeeeds to say: "A linuta- 
 tionover. if tlie first taker should die without 
 leaving Issue, or leaving no issue, has a dif- 
 ferent construction, and is valid, or invalid, 
 according as it may relate to personal or real 
 »state. When real estate is the suhject of the 
 limitation, it is construed to he after an in- 
 defiiute failure of issue, and fails for remote- 
 ness. The word leaving, in such a case, is not 
 restrictive. Forth v. riiapman. 1 P. Wms. 
 <;»!.">: Mazyck v. Vanderhorst, P.ail. Eq. 4.S. It 
 is theopiinon of the Court, that the linutation 
 fails as to the real estate, and that the tract 
 i>f land in question was the ahsolute estate 
 of Isaac P. Droze, and descends to his heirs 
 at law." 
 
 The doctrines thus asserted in the Circuit 
 decrt'e, and the distinction drawn between a 
 linutation of personal estate, and a limitation 
 of real estate, under the words of this will, 
 are unquestionably correct ; and this Court 
 fully concurs in the views that have been ex- 
 pressed. 
 
 But there is an aspect of the case, which 
 was not presented on the Circuit trial, nor 
 considered by the Chancellor, which prevents 
 the distinction l)et\veen personal and real 
 estate in this respect, from being material 
 or applicable to the case. In tins Court, ac- 
 cording to the equitable doctrine of conver- 
 sion, there was no real estate to pass mider 
 the limitations of this will, although there 
 was real estate disposed of by it. The will 
 gave no land to the beneficiaries ; but direct- 
 ed that the real, as well as the personal es- 
 tate siiould be sold by the executors: and it 
 was the "proceeds'' of the sale that the testa- 
 trix gave, to be equally divided among her 
 seven grand children. 
 
 Wherever it is apparent from the words of 
 the will, that the testator meant, that his 
 real estate, as su:'h. should not pass into the> 
 possession of the objects of his testamentary 
 
 *216 
 bounty: *but that his real estate should be 
 converted into money, and as money, that it 
 should come to those for whom iie designs the 
 benefaction, in Kiputy it will be regarded as 
 a betiuest of i)ersonal property. I'nder such 
 circumstances, it will be treated in all re- 
 sfiects. as if the conversion had been made by 
 the testator in his life tinu'. Tins doctrine is 
 fully sustained i>y the authorities. 1 Uop. on 
 Leg. .'M.'i, ;;.")(), n.')S. .•',(;.".; Walker v. Denne. 2 
 \i's. Jr. 17ti: Koach v. Ilaynes. S Vos. r>!)l ; 
 \\right V. Wrigiit. It! Ves. 1!)1 ; Cook v. Duck- 
 entield. '_' Atk. 5«!S; Durour v. Motteux, 1 
 Ves. Sen. ."liO. To these, mnnerous other 
 ca.ses nnght be added, were it necessary. 
 
 The lands devised in the residuary clause of 
 Mary E. Droze's will, by the directions to the 
 executors to sell them, and to pay the pro- 
 ceeds to the persons named, by virtue of this 
 doctrine of equitable conversion, assumed 
 
 I under the will itself, the form and tpialities 
 I of personal estate. It follows, that all the 
 ! limitations of the will, under these circum- 
 stances, must he considt-red as limitations of 
 personal pntperty ; and in a question, wheth- 
 er the linutation is valid, the .same rules of 
 consfrucf ion nnist apply, which apply in the 
 limitations of chattels. Tiie limitation, there- 
 fore, is good as to all the property given to 
 the Drozes, by the residuary clause of the 
 testatrix's will. At her dejith, tlie real estate 
 descended to her heirs at law, suhject to be 
 divested by the sale and conveyance of tne 
 executors. And though the land has not to 
 this day, been sold by the executors, this 
 onnssion will not alter th«' case. In lupiity, 
 that which should have been done, will be 
 considered as having been done, and the par- 
 ties in interest be put in the same positions 
 respectively, as they would have occupied, 
 had the directions of the will been fully ex- 
 ecuted. 
 
 The que.stion I have been considering, is 
 raised in the third ground of appeal taken 
 by the comi)lainant. and the parties who are 
 in like interest with him ; which ground is. 
 therefore, sustaineil. 
 
 The fourtii ground of the same parties, 
 raises a denumd for rents and profits. We 
 
 *217 
 are of the opinion, that this claim can*not 
 be allowed. Rents and profits are, in a great 
 measure, witliin the discretion of the Court. 
 This is a stale claim. Isaac P. Droze was in 
 possession of the land for a great length of 
 time: for thirty years it is .said; and. <hiring 
 tliat period, there was no demand or account- 
 ing for rent. Thirty years' po.ssession. under 
 the.se circumstances, would raise a presunqi- 
 tion of almost any fact that would discharge 
 the claim. And when it is said, that he ac- 
 knowledged the rights of the parties now 
 clainnng, we understand inm to have had 
 referenc*' to their title, under the linutatituis 
 of the will, rather than to an account for 
 rent. Nor, do we think that the executors 
 are liable to pay rent since the death of Isaac 
 P. Droze, unless they havo used tiie land, or 
 otherwise made a profit out of it. It appears 
 that they sold the negroes soon after the tes- 
 tator's death, and could not have cultivated 
 it, after that sale. f(u- tile benefit of the estate. 
 They, may, however, have leased it: in which 
 case, and in any case, they are liable to the 
 extent of the profit they have realized. This 
 ground of appeal <'aii not be sustained. 
 
 Penjamin S. Logan, and Henry Chiiiinan 
 and Martiia. his wife. ai>peal on the follow- 
 ing gnmnds: "1st. PiMnuse it is respectfully 
 submitted, that as the testatrix, Mary E. 
 Droze, devised the residue of her estate, to 
 her seven grand-children, equally to be divid- 
 iHl between them: and one of them, namely. 
 Josiah Perry, died in tiie life time of the 
 testatrix; the effect is, that the testatrix 
 died intestate as to the one-.s)>ventli jiart of 
 the residue of her estate; and the said one- 
 
 87
 
 217 
 
 RICHABDSON'S EQUITY REPORTS 
 
 seventh part vested in Benjamin Perry, Mary j 
 E. Waring, Eliza E. Bass, Isaac P. Droze, 
 Jolin L. Droze, and Jane L. Droze absolutely: 
 and that, as a conseiiuence of these proposi- I 
 tions, a distinction should be made, between | 
 that which Isaac P. i>roze took, as a residu- 
 ary legatee, and that which he took as one of 
 the next of kin ; and the same distinction ap- 
 plies to those parts of the estate which he 
 took through his brother and sister, and that 
 so much as came to them in the character of 
 next to kin, is not subject to any limitation 
 over." The Circuit decree is silent on the 
 subject of this appeal. It was not discussed 
 on the trial, and escaped my attention. 
 *218 
 
 *The facts assumed in the ground of ap- 
 peal, above recited, are true, and the conclu- 
 sion inevitable. There was, on account of 
 the lapsed legacies to Josiah Perry, a partial 
 intestacy: and, of course, the intestate prop- 
 erty cannot pass under the limitations, or 
 dispositions of the will. 
 
 Josiah Perry pre-deceased the testatrix. 
 The specific legacy to him of the three ne- 
 groes, Peter, Ned and Moses, lapsed into the 
 residuum of the estate, which passed under 
 the residuary clause. The residuary estate, 
 thus augumented by the lapse of the specific 
 legacy to Josiah Perry, was given to the seven 
 grand-children of testatrix, equally to be 
 divided among them. Of these, Josiah Perry, 
 himself, was one. His share of the residuum 
 which was one-seventh, lapsed and became in- 
 testate property. It was divisible under the 
 statute of distributions among the six remain- 
 ing grand-children of the testatrix, namely: 
 the Drozes, Isaac, John, and Jane; Benja- 
 min Perry, Mrs. Waring, and Mrs. Bass, one- 
 sixth to each of them. And, indisputably, 
 such portions of the intestate property of 
 Mary E. Droze, as Isaac P. Droze derived 
 through his brother John, and his sister 
 Jane, are not to be accounted for, under the 
 limitations of Mary E. Droze's will. 
 
 The second ground of appeal by the same 
 parties is, "because a distinction is also to 
 be made, as to the legacies residuary and 
 specific, bequeathed to Isaac P. Droze: for, 
 in the event that has happened, (that of his 
 dying without leaving issue,) one-fourth part 
 of the same is given over to Josiah Perry ; 
 but as Josiah Perry died in the life time of 
 the testatrix, the bequest to him fails, and 
 the estate of Isaac P. Droze, in that one- 
 fourth part, is not divested: and the same 
 will hold good, as to the interests which 
 Isaac P. Droze took, through his brother and 
 sister. The consequence of which proposi- 
 tion is, that the representatives of Isaac P. 
 Droze should accovuit to Benjamin Perry, 
 Mary E. Waring, and Eliza E. Bass, for 
 three-fourth parts of those legacies bequeath- 
 ed to him, his brother and sister, and no 
 more." 
 
 The position assumed in this ground of ap- 
 peal, is correct. It relates to the share given 
 
 88 
 
 *219 
 
 by the will to Josiah Perry, in the *property 
 bequeathed to the Drozes, in the event of 
 their dying without leaving issue. She gave 
 each of them one-seventh part of her resid- 
 uary estate: and in the event of their dying 
 without leaving issue, it was to go over to 
 the Perrys, of whom, Josiah was one. But, 
 Josiah, as has already been stated, died be- 
 fore the testatrix. It is contended, in opposi- 
 tion to the views of the appellants, that Josi- 
 ah's share in the remainder which now takes 
 effect, (all the Drozes having died without 
 leaving issue,) or rather, would have been 
 Josiah's share, had he survived the testatrix, 
 has also elapsed, and is intestate pi'operty of 
 Mrs. Droze ; and, as such, subject to distri- 
 bution. To make this matter plainer, I will 
 divest it of some of its complexities. 
 
 I will suppose that the testatrix has given 
 certain property to Isaac P. Droze, which, 
 by the terms of the direct bequest, would be 
 an absolute estate: and in the event of his 
 dying without leaving issue, she gives it to 
 Josiah Perry. This is substantially the case 
 here. And the position assumed on the part 
 of the next of kin of Mrs. Droze is, that 
 Josiah Perry's interest in the remainder over, 
 or what would have been such, had he sur- 
 vived the testatrix, has lapsed and io intes- 
 tate property. 
 
 This proposition would be true, had the 
 testatrix not given to the Drozei?, by the 
 terms of the direct gift, an absolute estate. 
 The Chancellor has held, and this Court con- 
 curs, that the residuary clause of Mrs. 
 Droze's will, gives to the legatees therein 
 named, a fee, which, by the codicil, is, as to 
 the legacies given to tlie Drozes, made de- 
 feasible, in the event of their dying without 
 leaving issue. Where an estate is given to 
 one absolutely in the first instance, and is 
 made defeasible upon a contingency, on the 
 happening of which it is to go over to some 
 third person, the estate given to the first 
 taker is not to be defeated, because the 
 event upon which it is to take effect, or the 
 person who is to take, is insufliciently de- 
 scribed ; nor because the limitation is ille- 
 gal, or void for any cause. The same rule 
 applies where the person who is to take under 
 the limitation has died in the life time of the 
 testator. The absolute estate first given can 
 only be defeated where the limitation over 
 
 *220 
 can take effect. This *ground of appeal is 
 sustained, and the decree must be reformed 
 accordingly. The share in the remainder 
 which Josiah Perry would have been entitled 
 to. had he survived the testatrix (which is 
 one-fourth part) is the proper estate of the 
 said Isaac P. Droze: for which his legal rep- 
 resentatives are not accotuitable under the 
 limitations of the will. 
 
 As to the other questions decided by the 
 Circuit decree, to which exceptions have been 
 taken by the different appellants, it is uunec-
 
 MIKELL V. MIKKLL 
 
 essary to make any conimeut.s: this Court 
 coruurriiii; in tlie views expressed by the 
 Chaucc'llor. 
 
 It is ordiTod and decreed that tlie Circuit 
 decree he modified and made to conform 
 witli tliis decree. In all other respects the 
 Circuit decree is attirmcd, and the appeals 
 dismissed. 
 
 It is further ordered, that the matters of 
 account be referred to the Master, and that 
 the parties to the cause have leave to apply 
 to the Circuit Court for any orders that may 
 be necessary to carry this decree, and the 
 Circuit decree as thus modified, iuto effect. 
 
 WAKDLAW, Ch., concurred. 
 
 Dl'NKlN, Ch. I concur, except on the Hr.st 
 ground of appeal. My opinion is. that the 
 bonds passed under the descripticju of prop- 
 erty given to tlie legatee. 
 
 JOII\«TOX. Ch., absent. 
 Decree modi tied. 
 
 5 Rich. Eq. 220 
 
 EPHRAIM S. MIKKLL v. J. JENKINS 
 MIKELL. 
 
 (Charle.ston. Jan. Term, 1S5."!.) 
 
 [Exrciifors and Administrators <S=>11S.1 
 
 Defendant, an administrator, emi)l()yod .slaves 
 of his intestate, for a ti"nipi)i-ary i)iiri)()so, on 
 his own plniit.-itinn: the slaves i.'ft tlio planta- 
 tion of defendant to return to fiiat of the intes- 
 tate, and were never seen alive afterwards: the 
 Court, concluding, on the evidence, that the 
 slaves were destroyed in prosecution of a willful 
 
 *221 
 art on their part, *after they had left the em- 
 ployment of defendant, and after jiroper precau- 
 tion on his part, held, that defendant was not 
 liable for the loss. 
 
 I Ed. Note.— Cited in White v. Smith, 12 Rich. 
 COli; Henry v. Graham, 9 Rich. Ei]. .•!r)4. 
 
 For othor cases, see Executors and Adminis- 
 trators. Cent. Dig. § 474; Dec. Dig. (S=>ll.s.J 
 
 [Executors and Administrators (@==>ns.] 
 
 The act of an administrator in employing 
 the slaves of his intestate in his own service, 
 is not illegal. 
 
 I Ed. Note. — For other cases, see Executors 
 and Administrators, Cent. Dig. SS 47li-4Sli ; 
 Dec. Dig. <S=»11S.] 
 
 [Executors and Administrators <g=!)L| 
 
 The care and diligence which a prudent man 
 bestows on his own affairs, is the test liv which 
 the rcsponsiliility of trustees is determined: they 
 are not insurers against losses from casualties 
 and misfortunes, wiiieh ordinary sagacity and 
 <iiligence could not prevent. 
 
 I Ed. Note.— Cited in Rhamo v. I.*wis, l.'l 
 Rich. Eq. 301. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 307; Dec. Dig. (©=5!>1.] 
 
 Before Wardlaw, Ch., at Charleston, Feb- 
 ruary, ISul. 
 
 This ca.se was heard on exceptions, by the 
 l)Iaintitr. to the report of the Master. The 
 decree of the Chancellor, which <-ontains 
 
 every thing necessary to a full understand- 
 ing of the case, is as follows: 
 
 NVardlaw, Ch. The plaintiff in this case 
 claims an account from defendant of hi* 
 transactions as administrator of the estate 
 of plaintiff's fatlu'r, Ei>hraini Mikell. Jr., de- 
 cea.sed, and as guardian of plaint ifl's estate. 
 The defendant made regular returns of his 
 transactions as administrat«)r, to the Ordina- 
 ry of the District, until May, 1S,3U, when he 
 was a|ipointed by this Court, guardian of 
 plaintiffs estate; and afterwards the defend- 
 ant made regular returns as guardian, to one 
 of the Masters of this Court, until October, 
 1.S4S. when the plaintiff having attained full 
 age, the defendant put him in po.ssession of 
 the plantation, and delivered to him the 
 slaves and other chattels, and the bonds, 
 moneys and other assets, remaining of the 
 estates committed to the defendant. Master 
 (Jray, to wlntm it was referred to take tes- 
 timony in the cau.se, and to report generally 
 as to the matters in controversy l>etween the 
 parties, reports that all the accounts of de- 
 fendant have been verified by proper vouch- 
 ers, and that no objection had been submitted 
 to him resi)ecting them; and that the only 
 controversy in the cause, as to which alone 
 evidence had been offered, was as to the lia- 
 bility of defendant as adnnnistrator for three 
 negroes which had belonged to the estate of 
 his intestate, and which were lost in the fall 
 of 1.S37 ; and as to this matter the Master de- 
 cides against the claim of the plaintiff". The 
 case comes before me on exceptions to 
 the report rejecting this claim. 
 *222 
 *It appears, by the evid(>nce, that the de- 
 fendant in the fall of is;;7, was nmnaging 
 as administrator of his intestate, a planta- 
 tion called the Blue House plantation, in the 
 Interior of Edisto Island, and about .seven 
 miles from I'eters Toint ; and that he was 
 then owner, and managing in his own right, 
 a plantation on Railey's Island, which is sep- 
 arated from Edisto Island by a creek about 
 one hundred yards wide, but the landing on 
 Railey's Island is distant from I'eter's I'oint, 
 the opposite landing on Edisto Island, alxmt 
 four hundred yards. That the lU-fendant 
 having an unusually large blow of cotton on 
 his plantation on Railey's Island, which 
 might suffer from exposure, ordere<l f<tur of 
 the slaves. Jemmy, Class. Amy and Ket. un- 
 der his control as administrator on the Blue 
 House plantation, to proceed to Baileys Is- 
 land and aid in picking out his cotton; and 
 tlie.se slaves proceeded accordingly, and re- 
 mained on defendant's plantation for thr«>e 
 days, from Tuestiay niorning until Thursday 
 evening. On Tliursday evening, in calm 
 weather, the overseer of defendant, under 
 his order, i)rovi(h'd a large and safe boat 
 for the transportation of the four slaves froin 
 Bailey's Island to I'eter's Point, and saw the 
 boatmen on board, and the four slaves i)ro- 
 
 e=>yor other cases see same topic and KEY-NUMBER iu all Key-Numoered Digests aud Indexe 
 
 SD
 
 *222 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 ceeding towards the boat, but did not see < 
 them aboard the boat. Except the risk of , 
 being driven out to sea in boisterous weather, | 
 the passage across the creels is regarded as i 
 safe as transportation for equal distance on | 
 land, allowing for the difterence between wa- 
 ter and land. The passage is frequently 
 made by children going to school, and by ne- 
 groes going to church. There is no cause of 
 danger betwixt Peter's Point and Blue House; 
 yet, the three slaves last named, after they 
 passed from the ken of the overseer, were 
 never again Keen in life by a competent wit- 
 ness, and the corpse of one of them is the 
 only evidence of their fate. A few days aft- 
 erwards, the dead body of Class was found 
 on South Edisto beach, and at the same 
 time and place were found the dead body of 
 George, a slave of Ephraim Mikell, sen., the 
 owner of Peter's Point, and a small paddle 
 boat upturned, belonging to Sampson, anoth- 
 er slave of E. Mikell, sen. Early in the morn- 
 ing of Friday, the next day after the four 
 
 *223 
 slaves had been ordered to be sent back *to 
 Edisto, the overseer found the boat in which 
 they were directed to be transported, at the 
 landing in Bailey's Island, and the boatmen 
 at their proper employment. Jemmy, one of 
 the four slaves, returned to the Blue House 
 plantation in proper time, and he is still alive. 
 J^'rom all the circumstances of the case, I 
 conclude that the four slaves were safely 
 transported from Bailey's Island to Peter's 
 Point, on Thursday evening, and that in an 
 attempt, moved by their own will, to return 
 in the night to Bailey's Island in a small 
 boat, three of them were drowned. 
 
 Much testimony was offered before the 
 Master as to the usage upon Edisto Island 
 and the neighboring Islands as to the remov- 
 al of slaves from one plantation to another, 
 and the interchange of work upon emergen- 
 cies. The testimony itself was vague and 
 conflicting. It was not contended that any 
 local usage on this subject, however fully 
 proved, could change the general law ; and 
 the evidence was only urged upon the Court, 
 as exhibiting the mode in which masters 
 practically exercised their dominion over 
 slaves and discharged the duty of neigh- 
 bors. In this point of view, it was unneces- 
 sary or inadequate. Judges, who are mem- 
 bers of a slave-holding couununity. either 
 know without the testimony of witnesses 
 how masters should exercise their rights 
 over slaves, or they are not to be controlled 
 by proof of provincial practices. The first 
 exception of plaintiff which objects to this 
 testimony is sustained. 
 
 It was argued on the part of defendant. 
 that any liability of the defendant for the 
 slaves lost was extinguished by compensa- 
 tion for the loss made in the will of Eph- 
 raim Mikell, sen., grandfather of plaintiff. 
 This will, after a devise to the plaintiff of 
 the Blue House plantation, (previously given 
 
 90 
 
 by parol to plaintiff's father) and of negroes 
 upon certain limitations, which it is unneces- 
 sary to consider, declares as follows ; "I 
 gave to the father of my grandson during 
 his lifetime as much of my property as I 
 could afford to give to any one of my chil- 
 dren ; a part of which property he has al- 
 ready inherited, which in addition to the 
 above named negroes and land, is all that I 
 can leave him in justice to my other chil- 
 
 *224 
 dren." If there be any * reference in this 
 declaration to the loss of the three negroes, 
 it is too indistinct for the basis of a legal 
 conclusion ; but if the intention of the testa- 
 tor in this devise were palpably manifest 
 to make satisfaction to his grandson for the 
 loss, the defence would not be much strong- 
 er. No case would then be presented to the 
 legatee of election between inconsistent 
 provisions of the same instrument, or of 
 implied satisfaction of any demand of the 
 legatee against the estate of the testator. 
 No hinderance would be interposed to 
 the prosecution of his claim against a 
 third person for the unlawful or negli- 
 gent use of his property. Of course, ex- 
 trinsic evidence of the intention of the 
 testator in this respect, if at all compe- 
 tent, would be feebler in its influence. It is 
 unnecessary, however, to pursue this di-^cus- 
 sion, as the testimony does not extend to any 
 declaration of the testator, as to his motive 
 or purpose in the devise ; and does not pro- 
 ceed beyond some indefinite understanding 
 in the family of testator after his death ; 
 which understanding was as likely to be pro- 
 duced by the defendant as any one else. Tlie 
 second exception of plaintiff objecting to 
 the proof of compensation, is sustained. 
 
 The third exception is merely formal, ob- 
 jecting to the omission of testimony which 
 was supplied. 
 
 The question still remains as to the lia- 
 bility of the defendant for the loss of the 
 three slaves. 
 
 The plaintiff, in his fourth exception, puts 
 defendant's liability on the ground, that it 
 was an "illegal act in him to employ these 
 slaves for his own benefit without an equiva- 
 lent to plaintiff, and at a risk not necessary 
 for plaintiff's interest." The bill contains 
 no express suggestion of this claim, which 
 turns out to be the only matter of dispute 
 between the parties. If the plaintiff had 
 proceeded, frankly, according to the truth 
 of the case, to charge the defendant for this 
 injury exclusively, and the doctrine of the 
 exception be well founded, the case would not 
 have been within the jurisdiction of this 
 Court. If the loss resulted from the illegal 
 act of the defendant, the proper remedy of 
 the plaintiff would be trespass ; and if the- 
 loss resulted from the negligence of defend- 
 
 *225 
 ant, then case would be *the remedy. Tliis 
 Court, to avoid multiplicity of suits, may
 
 STREET V. LALRENS 
 
 k'gitiiiiatoly investipato an<l (l»»ci(h' such mat- 
 ters, when they are incidental to a general 
 necount or other topic of tH|uital)le cogni- 
 sance: t»ut when they stand alone, it is not 
 the i)rovin(e of Equity to give damages. It 
 is a mistake, however, to treat the act of the 
 defendant in employing these slaves in his 
 own .service as an illegal act. The cases 
 <|Uoted in nr_Minient of Wright v. (Jray. 2 Hay 
 4»!4, and McDaniel v. Ematnu'l, li Rich. 4."(, 
 where i)ersons were held to strict accniinta- 
 hility for unauthorized use of the property 
 of others, have no application. The dt'fend- 
 nnt. as adniini.strator, was the l»>gal owner 
 of the slaves in (luestlon, and he ndght, in 
 his di.scrttion. have employed the slaves al- 
 together in his own service; Incurrinir of 
 course liahility to the creditors an<l distribu- 
 tees for the full value of the hire of the 
 slaves while so employed. If an adminis- 
 trator or other trustee should remove 
 slaves belonging to the trust from their prop- 
 er employment, for the sake of lucre, this 
 would be a proper case for charging him 
 with hire at tlie highest estimate of witness- 
 es, and for measuring his responsibility in 
 every respect with .strictness: still we could 
 not denounce the act as illegal, however 
 contrary to a nice sense of honor. In the 
 present case, there is no complaint that hire 
 for three days of the four slaves is not charg- 
 ed against the administrator: and it is l>ut 
 just to him to remark, that he swears in his 
 an.swer, and there is some evidence of the 
 fact, that he had several times allowed his 
 own slaves to work on the trust estate with- 
 out compensation. It is to his credit too, 
 that his management generally was diligent 
 and successful. 
 
 The defendant, if liable at ail. is lialtle 
 for a breach of his trust, in not managing 
 the estate entrusted to him with the care 
 and diligence which a prudent man bestows 
 on his own affairs. A more stringent rule 
 as to the responsibility of trustees would 
 <lefeat itself by deterring thoughtful, honest, 
 and prudent men from engaging in the dis- 
 charge of duties, so hazardous as well as 
 onerous. Where one has faithfully endeav- 
 <Hired to execute a trust, it would bi> neither 
 
 •226 
 reasonalile nor *e(|uitable to makt- him an 
 insurer against losses from casualties and 
 misfortunes which ordinary sagacity and 
 diligence could not prevent. llie Court 
 cannot expect trustees to take more care 
 of trust estates than of their own. Taveau 
 v. Hall, 1 McC. Ell. W2: Massey v. Hamier, 
 1 Jac. and W. L'P.t: .Jones v. lyi-wis, '2 Ves. 
 Sen. 240. 
 
 In this ca.se, the property lost consisted of 
 slaves — chattels that have intelligence and 
 will, who are capable by their own acts of 
 defeating a high degree of care and clrcum- 
 sjiection on the part of others. Ferrymen are 
 held by our law to the strict responsibility 
 
 of common carriers; yet if a slave, on his 
 pas.sage in a ferry Intat, sliould elude the 
 connnon care of the ferryman, jumi» over- 
 board and drown himself, the owner of the 
 ferry would not be liable. Clark ads. Me- 
 Domild. 4 .McC. 22;{. So here, as I conclude 
 that the slaves were destroyed in prosecu- 
 tion of a wilful act on their !)art, after they 
 had left the employment of the defendant, 
 and after proper <'aution on Ids part, I c<»n- 
 cur with the .Master, that no liability on 
 this a<"Count attaches to the defendant. The 
 exception is overruled. It is ordered and de- 
 creed, that the bill be dismissed. 
 
 The plaintiff apiH^aled on the grounds 
 
 1. That his Honor shoidd have sustained 
 the fourth exception to the .Master's reimrt, 
 and decreed the defendant liable for the val- 
 ue of the three negroes of the ndnor, viz.. 
 Class, Ket and Amey: and their wages or 
 interest ; the said negro«'s having be<'n re- 
 move<l from the nnnor's plantation, and used 
 at a distance therefrom, by the said «lefend- 
 ant for his own benefit, and having Ihhmi 
 lo.st in oi by reason of such impro|H>r use. 
 
 2. That the decree, .so far as it overruletl 
 the fourth exception and dismissed the bill. 
 is contrary to eiiuily, aqd ought to be re- 
 versed. 
 
 Yeadon & .Macin'th, fur appellant. 
 Magrath, contra. 
 
 ♦227 
 
 ♦PER CIRIA.M. The Court concur in the 
 judgment nf the Chancellor. The decree is 
 alhrmed. 
 
 Dr.VKlX. I>AK»;A.\ mh.I WARId.AW.CC, 
 concurrinL.'. 
 
 .I()1I.\ST(».\. Ch.. absent at the hearing. 
 Decree allirmed. 
 
 5 Rich. Eq. 227 
 
 HENRY T. STREKT and Oth.rs v. ED- 
 WARD R. LAlRENS aixl Others. 
 
 (Charleston. .Ian. Ttiin, l.S5.'{.) 
 
 [i: quit II C=>1-">1.| 
 
 Constriictioii >;iven to a decree <>f the Cir- 
 cuit Ciiiirt in another cause. 
 
 I Ed. Note.— I'or other cases, .'ioe E(|intv, C'tnt. 
 Dig. SS 104S-l(»r)l ; Dec. Dig. C=>4:n.l 
 \i:<iuit!i ©=>.".! ts. I 
 
 Wliirc a Master in Equity is ordered by the 
 Court to iiiNcst fluids in his hands, and negle«'ts 
 to do so. his sureties for the term diiriiig which 
 the default, in neglecting to invest, is eotiunit- 
 ted. are liable. That the .Master, by re-ele<'tion. 
 beeonies his own successor — giving new bond 
 with other sureties— does not discharge them. 
 
 I Ed. Note.— Cited iu Whitniire v. Langstou, 
 lis. C. :\s\); State ex ri-l. Cau.sev v. Cau.sev, 
 
 ;•:{ s. c. ."MM. 7(; s. e. tot. 
 
 For other cases, see E<)uitv. Cent. Dig. § 
 
 st;;5; Dec. Dig. c=3:v.ts.i 
 [i:<juii!/ c=3;{os.] 
 
 So, also, where a Master eonunits default 
 in not depositin:: iimnev in I'lank. as iliriM-te<l 
 bv the Act of 1S40, his sureties for the term 
 
 0=9For other catjes see same topic aud KEY-NL'.MUBK lu all Key-Numborcd Digests and Indexes 
 
 91
 
 ^227 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 during which the default is committed, are lia- 
 ble. 
 
 [Ed. Note.— For other cases, see Equity, Cent. 
 Dig. § S63 ; Dec. Dig. (©=5^98.] 
 
 [Equiiy <®=339S.] 
 
 The sureties of a Ma.ster were sought to be 
 made liable for the default of the Master in 
 not investing funds of a certain estate, as di- 
 rected by an order of the Court:— 1/eZd, upon 
 the evidence, that certain bonds, payable to 
 the Master, were not in fact investments for 
 that estate, and therefore the sureties were not 
 exonerated— although, during a subsequent term 
 of the same Master, the bonds were paid to him, 
 (and the money wasted,) as belonging to that 
 estate. 
 
 [Ed. Note.— For other cases, see Equity, Cent. 
 Dig. §§ 862, 863; Dec. Dig. <®=398.] 
 
 [Equity <©=>39S.] 
 
 A Master having committed default in not 
 investing funds, his sureties were charged in- 
 terest, with annual rests, until he went out of 
 office, and with simple interest from that time. 
 
 [Ed. Note. — For other cases, see Equity, Cent. 
 Dig. § 863; Dec. Dig. <©=^398.] 
 
 Before Dargan, Cb., at Charleston, July, 
 1852. 
 
 Edward R. Laurens was elected Master 
 in Equity for Charleston in December, 18.36: 
 he was re-elected in December, 1840: again 
 re-elected in December, 1844: and again in 
 December, 1848. He remained in office until 
 May, 1851, when he resigned. His mother, 
 Eliza Laurens, was one of the sureties on 
 
 *228 
 his *official bonds of his first and second 
 terms. She died in 1842, leaving a will, of 
 which he was the executor. 
 
 This bill was filed by Henry T. Street, and 
 others, heirs of Timothy Street, against Ed- 
 ward R. Laurens, as executor of his mother, 
 John Laurens, Eliza Laurens, Henry Laur- 
 ens, and John R. Laurens, her devisees, to 
 render her estate accountable for certain 
 funds of the estate of Timothy Street, which 
 came into the hands of Edward R. Laurens 
 as Master, prior to December 9, 1844, when 
 his second term of omce expired. 
 
 The bill was taken pro confesso against 
 him. The other defendants answered, admit- 
 ting the liability of the estate devised to 
 them for the debts of Mrs. Laurens, but de- 
 nying knowledge of any debt due by her on 
 account of the official bonds of her son. 
 
 One of the Masters, Mr. Tapper, was di- 
 rected to take an account of the sums owing 
 by Mrs. Lawrence to the complainants, on 
 the bonds to which she was a party, as the 
 surety of Edward R. Laurens ; and he sub- 
 mitted his report, dated June 15, 1852, as 
 follows: 
 
 "I have been attended by the solicitor for 
 the complainants, and the solicitors for the 
 defendants; and having heard the allegations 
 of the said parties, and their proofs thereon, 
 I have taken an account of the estate of the 
 late Timothy Street, which came into the 
 hands of Edward R. Laurens, as one of the 
 Masters of this Court, and not accounted for, 
 during the official terms for which Mrs. Eliza 
 
 Laurens was bound as one of the sureties 
 of the said Edward R. Laurens. 
 
 "Mr. Laurens w-as first elected to the of- 
 fice of Master in Equity, in 1836, and on 
 the 12tli day of December, in that year, exe- 
 cuted his bond in the penal sum of thirty 
 thousand dollars for the faithful discharge of 
 the duties of said office. In 1840 he was re- 
 elected, and on the 12th day of December of 
 that year executed a like bond. The name 
 of Mrs. EHza Laurens appears as a surety 
 on both of these bonds. The term for which 
 the latter bond was given, expired on the 
 ninth day of December, 1844, when upon the 
 
 *229 
 third election of Mr. Laurens, *a new bond 
 was executed, to which Mrs. Laurens waa 
 not a party. 
 
 "For any default, therefore, occurring be- 
 tween the date of the first bond, to wit, the 
 12th December, 1836, and the expiration of 
 the second term, the 9th December, 1844, 
 Mrs. Eliza Laurens was liable as one of the 
 sureties of Mr. Laurens. 
 
 "Timothy Street, the father of the com- 
 plainants, died in the year 1833, intestate, 
 leaving a considerable estate in realty, or 
 which he was seized, as to part, in liis own 
 right, and as to other portions, as tenant in 
 common, with Thaddeus Street anci Daniel 
 Boinest, who had been partners in trade, and 
 to whom administration of his estate was 
 committed after his death. By a decree of 
 Chancellor DeSaussiire bearing date the 23d 
 day of January, 1836, and made in a cause 
 then pending in this Court between the said 
 administrators and the widow and children 
 of the said Timothy Street, for a division of 
 the real estate of the said intestate, it was 
 ordered: that the said real estate be sold; 
 that so much of the proceeds of said sale as 
 belonged to the distributees of Timothy 
 Street, be paid over to the Master of this 
 Court, and 'that the said Master do invest 
 in his official name the amount coming into 
 his hands from the sales aforesaid, on ac- 
 count of the distributees of Timothy Street, 
 in such manner as may be agreed on by him- 
 self, and the administrators of Timothy 
 Street, to be held for the use of the legal 
 distributees of Timothy Street, and transfer- 
 red to the parties who may be decided to be 
 entitled thereto.' 
 
 "Thomas O. Elliott, who, at the time of 
 the pendency of these proceedings, was one 
 of the Masters of this Court, received under 
 the above decree, as a part of the proceeds 
 of the sales of the real estate, belonging to 
 the distributees of Timothy Street, a bond 
 of Benjamin Smith, dated 27th January, 
 1836, for four thousand four hundred and 
 fifty-five dollars; also, in cash, four hundred 
 and eleven dollars. The ]pttev sum was in- 
 vested by the said ''^'.dJj^-^ la July. 1836, in 
 a bond of M. I. Keith, secured by a mortgage 
 of a pew in St. Peter's Chuch, of Cliarleston. 
 
 92 
 
 <gs»For other cases see same topic aud KEY-IJUMBER in all Key-Numbered Digests and lnde.\es
 
 STREET V. LAUREN'S 
 
 Both of these Ixinds were transferred by Mr. | 
 ♦230 1 
 
 Elliott to his siu-*tvss(ir, Mr. Laiirt'iis, uimiu 1 
 the election of the latter in December, is'W. j 
 Upon the bond of Benjamin Smith, Mr. Lau- i 
 rens received, from the year ls.'{7 to the year 
 1H40 inclusive, the annual interest accruing 
 thereon; and on the 10th Kcitruary of the I 
 latter year, the principal of the said bond 
 in full. I have admitted tlu-sc receiiits, by 
 Mr. Laurens, as proper char;<cs in this ac- 
 count, upon the evidence of B. F. Snuth. 
 which accompanies my report in the case of 
 Thaddeus Street, et al. v. An^'elique Street 
 et al., filed the 2d July, iS'il, and upon in- 
 spection of the original bond, with the ac- 
 knowledgment of the several payments en- 
 dorsed by Mr. Laurens. 
 
 "The bond of M. I. Keith, I am of opinion, 
 cannot be allowed as a charge against the 
 late Master, so as to bind tlie estate of Mrs. 
 Laurens. Some time previous to 1S4'J, this 
 bond was placed by Mr. Laurens in the 
 hands of the late CJeorge B. Eckhard, for col- 
 lection ; on the 4th May, 1S42, the pew in 
 St. Peter's Church, mortgaged to secure the 
 payment of this bond, was sold by Master 
 Gray, but the proceeds of sale (.$12G.l.'r»i were 
 not paid over to Master Laurens until the 
 15th March, 1S45, after the last term had 
 expired, for which Mrs. Laurens was bound 
 as one of the sureties of Mr. Laurens. To se- 
 cure the balance still due upon this bond, 
 after the above payment, Mr. Eckhard re- 
 ceived from the obligor. i)robably in 1S42. 
 a bond of James Hamilton and D. IL Hamil- 
 ton, conditioned for the payment of a sum 
 considerably exceeding the amount of Keith's 
 bond, for which it was su.^stituted. The 
 Hamiltons' bond was not paid until ISuO, 
 six years after the termination of Mrs. Laur- 
 ens' liability on the ofhcial bonds of the 
 late Master. 
 
 "In 1839, Master Laurens received, on ac- 
 count of the complainants, from the sale of 
 certain real estate under the decree before 
 referred to, a bond of Henry T. Street con- 
 ditioned to pay six thousand two hundred 
 and fifty dollars, also a lM)nd of George B. 
 Locke for !i!.j.41U.G7. both bearing date the 
 first day of April. IS'Ut. From the evidence 
 appended to my report of the L'd July. is."il, 
 befoi-e referred to, and from the original 
 bonds produced before me, it appears that 
 
 *231 
 the interest arising on the *bond of H. T. 
 Street was paid annually to Mr. Laurens, up 
 to the li4th of June. l.s4:5. wiien the principal 
 was paid in full. It al.so ajtpears that the 
 interest was regularly paid on the bond of 
 George B. LixUe. to the 1st Ai)ril. 1S44, the 
 last year for %vliich Mrs. Laurens was bound. 
 I have, therefore, allowed as proper charges 
 in this account, the nutneys received by Mr. 
 Laurens on the bonds of Street and Locke, 
 jtrevious to the expiration of his second of- 
 ficial term. 
 
 "I'nder the decree of Chaufvllor DeSaus- 
 sure. Mr. Laurens sold, in 1S40. a house and 
 lot in l^ueen-street, and received from Daniel 
 Bolnest. the purcha.ser. his bond Itearlng date 
 the 'SJd April. 1S40, for $4.5(M>. being the 
 moiety of the prrnveds of sai«l sale l.elonging 
 to the c-«implainants. as distrii>utees of Tim- 
 othy Stn-et ; on this bond Mr. Laurens re- 
 ceived $.'n7..*r>, on the I'Jd April. 1S41. and 
 $ri.SS.40, on the -jrSd July, 1S4:{— tliese pay- 
 ments being endorsed In the handwriting of 
 the late Ma.ster <»n the l>ack of the original 
 lM»nds produced before me. I have allowed 
 them as charges in the account. 
 
 "The defendants, liy their solicitors. l)ave 
 suliniltt«'d to me evideme uiMin whicli they re- 
 ly to sustain the following credits, claimed by 
 them in discharge of their liability u|ion the 
 account as established by the proof of the 
 conii»lainants. 
 
 "(1.1 
 
 1840, Febniiiry 28, onsh pnid by Mr. 
 Ijiiurcns for note of Tlnulihiis St.«»'«'t 
 
 at 12 montliH ?4.45r. 00 
 
 '•In Master Laurens' annual report of 
 funds for the year ls41 and 1S42. this ere<lit 
 appears In his aci*ount with the estate «>f 
 Street, and seems to have been vouch»*d be- 
 fore the Chancellor. The investment of 
 funds, by the Master, in promissory notes, 
 unsecured by mortgage or otherwise, would 
 not, I presume, under ordinary circum- 
 stances, receive the sanction of the Court ; 
 in this case the order of Chancellor DeSaus- 
 sure authorizes the investment *)f moneys 
 received by the Master for the estate i»f 
 Street, "in such manner as may be agreed on 
 by the Master, and the adnnnistrators of Tim- 
 othy Street.* The note taken by Mr. Laurens 
 in this case, was the nt>te of tlie acting 
 
 •232 
 ♦administrator of this estate. Hotb the 
 Master and administrator nuist. tlu'refore, 
 have agreed to the investment. In allowing 
 this creilit. I have been infiuenced. not so 
 much by the foregoing consider.Jtioii. as by 
 the fact, that Mr. Street paid the principal 
 of his note in full on the 1st March. 1S42. 
 I have charged Mr. l^uirens with the prin- 
 ci|)al of this note on the said day. and with 
 the interest as of the dates when it fell due. 
 A different conclusion as to this credit would 
 probably have been arrived at. had the al- 
 lowance of it in any manner changed tlu' ac- 
 count, or the liability of the parties sought 
 to be cbargi'd by these pmceedings. 
 
 "I -2.1 
 1S41. Jane 22. Cash pd by 
 
 Lanr<ns for $ <il<J ■">•") 
 
 State (i per ct. Stock 
 at 105 $ fur, :i2 
 
 1841, Die. 14, Cash p'd by 
 Laurens for '224 SS 
 
 State t! per ct. Stock 
 
 at 105 -SM; 12 
 
 1S41. Dee. 14, Cash p'd by 
 
 Laurens for 517 Id 
 
 State ti per ct. Stock 
 at 105 542 9l5 
 
 ifl, ■'•'>' o.) ^1.425 40
 
 *232 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 "From the Stock Ledger of the State 
 Treasury Office it appears that, at the above 
 dates, scrip representing State six per cent, 
 stock (Fire Loan) for the above three 
 amounts (the two first redeemable, in ISGO, 
 and tlie third, in 1870,) was transferred by 
 Mrs. Louisa Ingraliara to "Edward R. Laurens, 
 Master in Equity, for estate of Street ;' this 
 stock remained in the name of Mr. Laurens 
 for this estate until May, 1849, when it was 
 transferred by him upon the books of the 
 Treasury Office as follows: 
 
 To Edward R. Laurens, Master in 
 Equity, for Bailey v. Boyce 601 16 
 
 To Edward R. Laurens, Master in 
 Equity, for Balthazar & Co 14 37 
 
 the two last credits are claimed, was selling 
 at $105 ; the price alleged to have been paid 
 by Mr. Laurens. 
 
 "[4.] 
 Casli paid by Mr. Laurens for $148.37 
 
 City 6 per cent, at 110 157 70 
 
 Cash paid by Mr. Laurens for City 5 
 
 per ct. at par 250 00 
 
 Cash paid bv INIr. Laurens for City 5 
 
 per ct. at par 892 42 
 
 615 55 
 
 To Edward R. Laurens, blaster in 
 Equity, for Estate of Merritt 224 88 
 
 To Edward R. Laurens, Piaster in 
 Equity, for Baltliazar & Co 434 04 
 
 To Edward R. Laurens, Master in 
 Equity, for Estate of Merritt 64 06 
 
 $1,357 53 
 "It is clear, from the date of the foregoing 
 *233 
 statement, that al*though the estate of 
 Street has lost the above stock by its transfer 
 to other estates represented by the late 
 Master, still the credit claimed upon this ac- 
 count by the defendants must be allowed. 
 On the 9th day of December, 1844, when the 
 lial)ility of Mrs. Laurens upon the bonds of 
 the Master ceased, this stock was held, by 
 Mr. Laurens, in tiiist for the distributees of 
 Street. The default occurred in 1849, during 
 a term subsequent to the period for which 
 Mrs. Laurens was bound. The defendants, 
 I think, are entitled to the benefits of the 
 above investments. The interest, however, 
 received previous to December, 1844. from 
 this stock, is a charge which may properly be 
 claimed by the complainants, and I have 
 accordingly allowed it. 
 
 "[3.] 
 1842, March 1, Cash paid bv 
 
 Mr. Laurens for $4,500 
 
 State 6 per cent. 
 Stock at 105 $4,725 00 
 
 "Proof is furnislied by the certificate of 
 William Laval. State Treasurer, that on the 
 above day Mr. Laurens invested in his official 
 name for the estate of Street $4,500 in State 
 6 per cent, stock. In May, 1845, from this 
 stock he transferred $2,000 to the estate of 
 Stoney. In January, 1848, he received $833.- 
 34, that being the one-third redeemable at 
 that time, and the balance, $1,666.66, was 
 taken in new scrip. In May, 1849, this new 
 scrip was, with some other stocks, divided by 
 Mr. Laurens between the cases of Kenderson 
 V. Henderson, and Boyce v. Boyce. This 
 credit, for the reasons assigned in determin- 
 ing the preceding one, must also, I think, be 
 allowed. The first default here arose in May, 
 1845, after the second term of Mr. Laurens 
 had expired. I have inquired, and find that 
 State 6 per cent, stock, at the dates when 
 94 
 
 ^234 
 
 $1,142 42 
 
 *"From the books of the City Treasurer, it 
 appears that City 6 per cent, stock of the is- 
 sue of 1838 and 18.39, for $157.70. was 
 transferred to Mr. Laurens for the estate of 
 Street, in October, 1844. This stock remain- 
 ed luichanged in the hands of Mr. Laurens 
 until his resignation, in 1851, when it was 
 turned over to me as his successor, and by 
 me transferred to the distributees of T. 
 Street. In April, 1844, at the same office, 
 City 5 per cent, stock of the issue of 1824, 
 for $250, was placed to the credit of Mr. 
 Laurens for this estate. In 1846, this stock, 
 being then redeemable in full, was paid to 
 Mr. Laurens by the City Treasurer. The 
 dividend book of this office shows that in 
 October, 1842, thei'e was also standing in 
 the name of the late Master, for the estate of 
 Street, City 5 per cent, stock of the Issue of 
 1835 for $454.85; and that in April. 1844. 
 this sum was increased bj other purchases to 
 $892.42. This investment continued unchang- 
 ed in tlie hands of Mr. Laurens after Decem- 
 ber, 1844. Scrip representing $669.32 of this 
 stock was transferred to me by Mr. Laurens, 
 and by me assigned to the complainants. I 
 have allowed this credit, there appearing no 
 default in respect to these investments dur- 
 ing Mr. Laurens' first and second terms. 
 Two quarters interest is charged as received 
 on this stock in 1844. 
 
 '•[5.] 
 
 1. 1841, January 19, Cash paid by 
 
 Mr. Laurens for bond of 
 
 Mrs. Eliza Laurens $1,082 33 
 
 2. 1842, July 10, Cash paid by I\Ir. 
 
 Laurens for bond of Mrs. 
 Eliza Laurens for $766.80, 
 with interest from 14th 
 Marcli, 1839 962 57 
 
 3. 1843, July 3, Cash paid by Mr. 
 
 Laurens for bond of Mrs. 
 Eliza Laurens for $633.20, 
 with interest from 14tli 
 March, 1839 856 01 
 
 4. 1843, July , Cash paid by Mr. 
 
 Laurens for bond of Mrs. 
 Eliza Laurens.... $2,207 .58 
 
 5. 1843, July, , Cash paid by Mr. 
 
 Laurens for bond of Mrs. 
 Eliza Lauj'ens ... 635 OC 
 
 Interest from 19th Janu- 
 ary, 1841, on $2,842 58 3,367 87 
 
 "=235 
 
 $6,268 78 
 
 *"The original bonds here referred to have 
 been submitted to me. They are all signed 
 Eliza Laurens, and payable to "Edward R. 
 Laurens, Master in Equity, his successors iu
 
 STREET V LAUREN'S 
 
 office, and assifins.' The dates and aiiioiiiits I 
 are as above stated. On each of these bonds I 
 t-here is this acknowiedirineiit: "Received 
 payment in full on the within liond. Edward | 
 R. Laurens, .Master in E<|ult.v.' Tiie follow- ! 
 lug endorsements ai>pear on the back of these 
 bonds : 
 
 "On 1st bond— 'inth January, 1.S41. Eliza 
 Laurens to Master iu I"(iuity for Estate 
 Street. $1.0S-_>.:i;5.' 
 
 "On 2d bond— '14th March, 1,S.30, Mrs. Eliza 
 Laurens to Master in I^iuity. bond $700.^0.' 
 
 "On 3d bond— '14th Mardi. ls::!». Mrs. Eliza 
 Laurens to Master in I'Jiuity for Warren An- 
 drew.s, et ux. bond .$(io."!.liO.' Warren An- 
 drews, et ux. stricken out. 
 
 "On 4th bond— 'inth January. Is41. Eliza 
 Laurens to Master in I-^iuity for Estate Mc- 
 Leod, L'.liOT.aS." Estate of .McLeod stricken 
 out, and 'January. 1n4."c for Instate .Street' 
 added. 
 
 "On 5th bond— 'lilth January. 1.S41. Eliza 
 Laurens to Master in Etiuity for Instate IL V. 
 Holmes. .$0.':).").' 
 
 ••Tt> tix upon these bonds the character of 
 investments for the estate of Street, the de- 
 fendants rely upon a schedule of debts 
 asainst the estate of Mrs. Eliza Laurens, ren- 
 dered, in January, 1840. to tlu' Ordinary of 
 Charleston District, by Edward IJ. Laurens, 
 e.xecutor of said estate. In this schedule the 
 above bonds are rei)resented to be held by 
 the estate of Street, and the testimony of 
 Mr. Guenther is introduced to show that 
 when this statement of tlie liabilities of Mrs. 
 Laurens was prepared, these bonds were in 
 the Master's othce. where they had been since 
 1S42. There is nothing upon the face of the 
 bonds, that proves them to have been invest- 
 ments for the estate of Street. They furnish, 
 In themselves, no more evidence that they 
 ever belonged to this e.state, than to any other 
 estate in the Master's olHce. They are made 
 payabh? to 'Edward R. Laurens. Master in 
 Equity,' without reference to the persons 
 beneficially interested in them. I'pon the 
 back of two of the.se bonds, the words are 
 written 'for estate of Street." If this be 
 
 *236 
 ♦sufficient to determine that they belonged 
 to the estate of Street, then of the remaining 
 bonds one must be held to have l)een the 
 property of the "estate of Holmes,' another of 
 "Warren Andrews, et ux.,' and the third, hav- 
 ing no endorsement upon it. to «'ither. or to 
 none of them. It does not appear to me that 
 these bonds were taken in compliance with 
 the Act of 1S4(I. which directs that funds in- 
 vested by the Master shall be invested in his 
 official name, in trust for the persons or es- 
 tates entitled thereto. Nor does it appear 
 that these Itonds were taken by the Master 
 with the concurrence of the administrators 
 of the estate of Street, as directed by the 
 decree of Chancellor DeSaussure : nor in ac- 
 cordance with the general practice of this 
 Court, to recpiire other security than the per- 
 
 sonal resjionsibility of the oldigor. From the 
 l>ooks turned over to me by my predecessor, 
 it do»'s not appear that any a<connt was kept 
 by him witli the estate of Street: and the 
 late Master's annual reports of funds to the 
 Court, from l.V{(J to ls44, do not sliow that 
 the bonds of Mrs. Laurens were ever held by 
 him as investments for the e.state of Street. 
 In 1S44 the account with this e.state is drop- 
 ped from tile report of that year, and does 
 not again appear. in any subs«Mpient report. 
 Evidence is fundshed from the books of the 
 Hank of the .*<tate. that at the several dates, 
 when it Is alleged the investments In these 
 bonds were made, there was littU' or no mon- 
 ey In this Hank to the credit of the .■state of 
 Street. Either the deposits reipilred l>y 
 law had never been nmde, or the funds liad 
 been drawn before the timts when these In- 
 ve.stments are claimed to have lK»en made. 
 The only evidence then, which goes to es- 
 tablish that these five bonds of Mrs. Laurens 
 were ever held for the estate of Street by Mr. 
 Laurens, as Master in Etpiity. is the schedule 
 of debts rendered to the Ordinary by Mr. 
 Laurens, as executor of the estate of Mrs. 
 Laurens. The aggregate sum of the debts 
 stated in this schedule is .$«il.!ill.l*.7 — much 
 the largest portion of this amount is made uii 
 of bonds of Mrs. Laurens other than those 
 put down to the estate of ."^tn-et. A consider- 
 able number of these bonds are designated lu 
 
 ♦237 
 the schedule as belonging to es^tates which, 
 I find, were" at the time in the hands of the 
 late Master, uniler various pro<-eedings then 
 pending in Court. The liooks and reports of 
 Edward R. Laurens as .Master— and which 
 contain his accounts with these estates — do 
 not corroborate his return as executor, in 
 respect to these bonds. Of the eight estates 
 in the Master's office, to which, acconllng to 
 this schedule. Mrs. Laurens was indebted by 
 bond, not one of them is charge«l by either 
 the books or reports of the late Master, with 
 the purchase on their acct)unt of these .securi- 
 ties. It does appear to me. that this return 
 to the Ordimiry of the executor of Mrs. 
 Laurens, cainiot deternnne what investments 
 were made by the late .Master for estates en- 
 trusted to his care by this Court. 
 
 "'An account of the receipts antl disburse- 
 ments by Mr. Laurens, as executor of his 
 mother's estate, vouched before the Ordinary 
 in January. 1S47. in whiili acc«>iuit the said 
 estate is charged with !?7.('.sl.'^7. allcLied to 
 have been paid l)y the executor in .Fanuary, 
 1S4G. to the e.state of Street, is relietl on by 
 the defendants to show that the money, .suid 
 to have been invested by the late Master for 
 this estate in the ImmuIs of -Mrs. Laurens, was 
 restored to tlie estate of Strt-et by the pay- 
 ment of these bonds; and that. If the funds 
 were misaiiplied by the late Master, the de- 
 fault occurred subsequent to this payment lu 
 1S4(). and conse(|uently .-ifler the date of 
 Mrs. Laureub' liability as one of the sure-
 
 *237 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 ties on tbe ofRcial bonds of tlie said Master. 
 In this account the estate of Mrs. Laurens is 
 credited with $37,000, received from John 
 Laurens, as the price of Mepkin Plantation. 
 It is, however, admitted, that John Laurens 
 paid in fact only $22,000 in cash, and settled 
 the balance by assuming to pay Mrs. Laurens' 
 bond to Sir Claudius Hunter, trustee of Mrs. 
 Henderson, for $15,000: and that, with the 
 exception of this last sum, the amounts cred- 
 ited to the estate of Mrs. Laurens in this ac- 
 count, were actually received in money by 
 Edward R. Laurens, executor, on the 6th 
 January, 1S46. 
 
 "The defendants, by their solicitors, have 
 urged before me that the fact, that the estate 
 of Mrs. Laurens was not made available for 
 the payment of her debts until 1846, and the 
 
 *238 
 ad*ditional fact, that by a provision of her 
 will, the bulk of her estate was to be kept 
 together until her grand-son, John Laurens, 
 should attain his majority, which he did in 
 that year, are circumstances going to show 
 the inability of Mr. Laurens, as executor, to 
 have paid these bonds before the time stated 
 in his account to the Ordinary, as the date 
 of their liquidation. To this the complain- 
 ants, by their solicitors, oppose the principle 
 of law. that when a payee and the legal rep- 
 resentative of an obligor are one and the 
 same person, payment of the debt will be 
 presumed one year after the death of the 
 obligor. This, it is contended, tixes the de- 
 fault in respect to the money invested in 
 these bonds, assuming the investment to have 
 been regular, within the second term for 
 which Mrs. Laurens is liable as a surety of 
 the late Master, to wit, in 1843, one year 
 after the death of Mrs. Laurens, which oc- 
 curred in 1842, and one year before the ex- 
 piration of her suretyship in 1844. It is not 
 necessary for me to consider these questions, 
 as I am of opinion that the evidence fur- 
 nished by the account of the executor of Mrs. 
 Laurens is as inadequate, standing alone, to 
 establish the fact of the payment of these 
 bonds, as of their ever having been invest- 
 ments for the estate of Street. I have noth- 
 ing before me which .sustains the statement 
 of this account, that these bonds were paid 
 to the estate of Street by the executor of 
 Mrs. Laurens. The receipts endorsed upon 
 these bonds are without date, and they are 
 signed by the late Master, without reference 
 to the estate for whose benefit the money 
 was received. There is no entry in the books 
 turned over to me b.v Mr. Laurens, or any in- 
 timation in his annual report of funds to the 
 Court, that the money for these bonds had 
 been received by him as Master for the estate 
 of Street. And at the date when it is alleged 
 that these bonds were paid, it is evident, 
 from the books of the Bank, as well as from 
 the original checks which have been exhibit- 
 ed to me, that Mr. Laurens, as executor, 
 drew no money for the estate of Street, from 
 
 96 
 
 the account kept by him in the said Bank 
 with the estate of Laurens: nor deposited, as 
 Master in Equity, any funds received from 
 
 *239 
 the estate of Laurens, *to the credit of tbe 
 account kept by him in the said Bank with 
 the estate of Street. 
 
 "I have disallowed the five bonds of Mrs. 
 Laurens, in stating the account between the 
 parties to this cause. 
 
 "6. — Commissions — one per cent, on the 
 whole amount received by Mr. Laurens from 
 1836 to 1844, for the estate of Street. 
 
 "I have allowed this credit. 
 
 ''In stating the account herewith submit- 
 ted, I have calculated interest to the 9th of 
 December. 1844. with annual rests, according 
 to what I understand to be the rule of thi^ 
 Court in cases of this kind. The balance on 
 that day I find to be $11,490.37. On this sum 
 I have charged compound interest, calculated 
 at half yearly periods to the date of this re- 
 port, in conformity with the 16th section of 
 the Act of 1840, defining the liabilities of 
 Master in Equity, and I find the sum so as- 
 certained against the estate of Eliza Laurens 
 to be ($19,271.85.) nineteen thousand two hun- 
 dred and seventy-one dollars eighty-five 
 cents." 
 
 The cause was heard upon the report, and 
 exceptions thereto by the defendants, on 
 7th and 8th July, 1852. His Honor pro- 
 nounced the foUoAving decree: 
 
 Dargan, Ch. This case was heard on the 
 Master's report and exceptions. The report 
 is so fuU and clear, that it will be necessary 
 for me to add nothing in explanation of the 
 facts, and very little in illustration of the 
 principles by which the decision of the ques- 
 tions made should be governed. 
 
 In the first exception, the defendants, John 
 Laurens and Eliza his wife, Henry Laurens 
 and John R. Laurens, who are legatees un- 
 der the will of Mrs. Eliza Laurens, deceased, 
 contend that the estate of the testatrix, (the 
 said Eliza Laurens,) to which they are now 
 entitled under the limitations of her will, 
 should not be subjected to the payment of 
 the plaintiffs' claims arising on the official 
 defalcations of Edward R. Laurens as Master 
 in Equity, because they say, that none of the 
 
 *240 
 ♦defaults and devastavits of the said Edward 
 R. Laurens in reference to the funds of the 
 plaintiffs in his hands, occurred during those 
 two offic-lal terms of the said Edward R. 
 Laurens, for and during which the said tes- 
 tatrix was his surety. If the facts upon 
 which the exception is predicated be proved, 
 it must of course be sustained. 
 
 Mr. Laurens was four times elected as 
 Master in Equity for Charleston district. 
 His mother, Mrs. Eliza Laurens, was one of 
 his sureties on his official bonds for his first 
 and second terms. Her liability commenced 
 on the 12th December, 1836. and ceased on 
 the 9th December, 1844, when Mr. Laurens,
 
 SnuCET V. LAURENS 
 
 242 
 
 having l)f.'n elec-tt^d tlie third time, sav.- 
 another hoiid to wliich Mrs. Eliza Laurens 
 Avas not a paity. lM>r any de\;istavits whhh 
 Mr. Laurens may i)e proved to jiave oonnnit- 
 led "net ween tlie ilates mentioned, tlie estate 
 of Mrs. Eli/.a Laurens will he llahle. 
 
 It is not denied, that the assets of the es- 
 tate of Timothy Street, for which the plain- 
 tiffs seek a recovery in this hill, came into 
 the hands of Mr. Laurens (hirin;: Ids first 
 two terms: in other words, during the time 
 for which Mrs. Laurens was hound as one of 
 his sureties, liut it is contended, that his 
 default related to cash received hy him, and 
 Hot paid to the rijrhtful owner: and that, 
 when lie was elected for the third time and 
 «iualified, he heoame dehtor for that cash to 
 himself as his own* successor. And, upon 
 the principle, that where the rights of cred- 
 itor and the ohli,i.'ations of a dehtor, of payer 
 and payee. <<imhine in the same person, the 
 debt is dlscharjjed, it is contended, that these 
 funds of the estate of Timothy Street, though 
 paid to Inm before that time, must he con- 
 sidered as liaviiig been paid hy Inm.self to 
 himself, at the commencement of his last 
 term, and the liability for the waste, there- 
 fore, thrown upon the sureties of his last of- 
 ficial bond. I think I have fairly stated the 
 argument, and it would be a sound legal, 
 proposition, if it were true, that Mr. Lauren.s 
 had no other duty to discharge in regard to 
 the funds of the estate of Street, than simply 
 to receive and safely keep them, and had, iii 
 
 *241 
 fact so kept *them, during the time that Mrs. 
 Eliza Laurens was his surety. Viuighan v. 
 Evans, 1 Hill cii. 414; Enicks v. Powell, 2 
 Strob. Eq. lOij. 
 
 But the rule upon wliich the exceptants 
 rely, is .subject to modifications and excep- 
 tions. It would not apply to a case where 
 consequential damages resulted from the 
 nonfeasance or misfeasance of an act. which 
 the otticial duty of the Master reipiired him 
 to perform: as not taking a mortgage and 
 security when he was required ; or taking 
 these securities in so negligent or defective 
 a manner as to render them ineffectual for 
 the purposes intended. In these, and similar 
 • ases. the damages resulting in one term, 
 would not be considered as payable to him- 
 self as his own successor in his succeeding 
 term, but the liability would attach per- 
 manently upon the sureties of the Hrst ofHcial 
 bond. And so. where tlie loss has resulted 
 directly from the act of the Ma.ster ; as 
 where the fund has been lost by liini from 
 carelessness, or at play: or has been ap- 
 I>lied by him to the payment of his own debts, 
 or to his own use in any way. or was other- 
 wise misiipproiu-iated. And so. also, in my 
 judgment, where the purpose of giving great- 
 er security jiiid prcMluctiveness to a fund, and 
 removing it as far as po.ssible bevond the 
 eontrol of the Master, and the ha'zards to 
 which It might be exposed in his hands, the 
 5 Rich. Eq.— 7 
 
 ' general law, or a special order of the Court 
 directs him to make a particular disposition 
 i of the fund, which he .units to do, and loss 
 I results directly, or indirectly; the liability 
 I must be referred to the ollicial bond of that 
 I term during which the default was commit- 
 j ted. 
 
 During the first offlcial term of Edward It. 
 I Laurens, on the 2nd January. l,s;{(i. by an 
 onler made in Street A: Hiijnest v. Street. 
 I conHrming certain sales made by the Master 
 under a i)revious order of the Court, tliat of- 
 I ticer was directed "to invest. In his ofHclal 
 name, the amount coming Into his hands 
 from the .sales aforesaid on account of the 
 distributees of Timothy Street, in .such man- 
 ner as may be agreed on by himself and the 
 administrators of Timothy .stre«'t. to be held 
 
 *242 
 for the use of the 'legal distribnt.'cs of 
 Timothy Street, and to be transferred to the 
 I>arties who may be decided to be entitled 
 theretct. 
 
 "And it is further ordered." .says the rec- 
 ord, "that on the .sale of any part of the 
 residue of the real estate in the bill mention- 
 ed, the proceeds thereof be partitioned as 
 follows, viz: one-half thereof to Thaddeus 
 Street, and the remaining half to the dis- 
 tributees of Timothy Street, deceased, to be 
 paid to the Master of this Court, and <lis- 
 tributed among the representatives of Tim- 
 othy Street by the further order of this 
 Court." 
 
 It does not appear that there was any 
 residue of real estate ever sold, or that an.v 
 such existed. The plaintiffs .sc.>k a recover.V 
 for the proceeds of no other sales than tho.se 
 mentioned in the clau.se of the decree first 
 quoted. For the pujri)oses of this case, 
 therefore, the clause of the decree last .luot- 
 ed may be left out of view. 
 
 The fund for the payment of which the 
 Master's report subjects the estate of .Mrs. 
 Eliza Laurens to liability, is a portion of 
 that which the said decree requires the 
 Master to invest. This he never did; un- 
 less cvrtain bonds of .Mrs. Eliza Laurens, 
 mentioned in the .second exception, be con- 
 sidered an investment under the i>rovisions 
 of the decree. 
 
 It is to be observed, that the tlecree not 
 only orders tlu' fund to be invested in th*- 
 Mast»'r's ollicial name, for the use of the 
 ilistributees of Timothy Street, but directs 
 that th«' securities them.selves. (not the 
 mone.v,) shonhl be transferred to the i.arties 
 who may be de.ided to be entitled thereto. 
 If the duties impo.sed by the decree upon 
 the .Master had been performed, the fuml 
 would have lu'en safe. He could not have 
 called it in without the special order of the 
 Court. If he had Invested it in public se<-u- 
 rities. or in Bank stock.s. or the shares of joint 
 stock compaides. the trust would have been 
 blazoned u|ion the certificates. They could 
 not have been transferred without the tran.s- 
 
 97
 
 *242 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 feree receiving them with notice of the trust, 
 and thus making himself liable to the cestui 
 que trusts. And if he had invested them in 
 private securities, in the manner prescribed 
 by the decree, the same result would have 
 
 *243 
 happened. Thus, *the plaintiffs have lost a 
 portion of their funds in the hands of the 
 late Master, (now hopelessly insolvent,) di- 
 rectly, in consequence of his omission to per- 
 form a reasonable and proper duty prescribed 
 by an order of the Court. The loss results 
 directly from the default, for without it, the 
 fund would have been safe. The loss results 
 from the default as clearly as in a case where 
 a Master omits to take a mortgage, or omits 
 to record it, or to take sureties to a bond 
 for the purchase money of property sold by 
 him, when those duties are required of him, 
 and loss results from his omission to perform 
 them. And this default having occurred dur- 
 ing his first term, it became, I think, a fixed 
 liability on the sureties of the official bond 
 of that term. It is not one of those cases 
 in which his liability is transferred by ope- 
 ration of law from the Master to himself, as 
 his own successor, and to the discharge of 
 his sureties of the preceding term. There 
 would be danger in carrying this rule of 
 transferring liabilities by operation of law 
 too far. If applied to cases like the present, 
 it would have the effect, where the same per- 
 ,son has held an office for several consecutive 
 terms, to accumulate the liabilities of his 
 whole oflicial career upon the sureties of the 
 official bond of the last term ; thus rendering 
 the security of the public against the con- 
 sequences of official default incomplete ; to 
 say nothing of the injustice to the last sure- 
 ties by the operation of a principle, which 
 must, in some sense, be regarded as a fiction 
 of the law, and which they never think of 
 when they become bound. I think it is suf- 
 ficient, if the rule be applied to those eases 
 where the liability of the officer is simply 
 for receiving and not paying over money, un- 
 connected with other cireum.stances of de- 
 fault, from which loss proceeds. I have no 
 authority or precedent for carrying it fur- 
 ther ; and I will not. 
 
 There is another view of the question aris- 
 ing on the first exception, at which I must 
 now glance. The Act of 1840, (11 Stat. 113.) 
 requires the Masters and Commissioners in 
 Equity to deposite in Bank all money receiv- 
 ed by them in their official capacity, when 
 
 *244 
 the Court does not otherwise direct. *The 
 late Master did deposite in Bank the wasted 
 assets of the estate of Timothy Street. But 
 he checked it all out again to the last cent, 
 during the two terms for which Mrs. Eliza 
 Laurens was his surety. It cannot be doubt- 
 ed, that the Act means, when the Master has 
 deposited a fund, that he should let it re- 
 main on deposite. It would be the merest 
 trifling to say, that his making a deposite is 
 98 
 
 a compliance with the requisition of the law. 
 when he forthwith withdraws it on his own 
 private check. As he did not check it out by 
 the order of the Court for the purpose of in- 
 vestment, or in payment of the parties en- 
 titled, he must have checked it out for his 
 own private uses. The manner of checking, 
 as to the amounts and dates, also leads to 
 this conclusion. If the fund had been suffer- 
 ed to remain on deposite, as the law intend- 
 ed, it would have been secure. His checking 
 it out, without justifiable reasons, or an at- 
 tempt at explanation, was an application to 
 his own, or improper uses. It was a misap- 
 propriation of the fund, which, occurring 
 during the official terms, for which Mrs. 
 Eliza Laurens was responsible, fixed a per- 
 manent liability on her. 
 
 If the provisions of the Act of 1840 were 
 faithfully observed, questions like this could 
 never arise. It would greatly enhance the 
 security of suitors in this Court, and dimin- 
 ish the liability of sureties. It would free 
 the fiscal officer of the Court from any temp- 
 tations to an abuse of his trust. And it 
 would most effectually prevent the perplex- 
 ing questions which arise between the differ- 
 ent sets of sureties on the official bond of a 
 Master, who has held office for several suc- 
 ces.sive terms. 
 
 The Master's report has not subjected the 
 estate of Mrs. Laurens to any greater lia- 
 bility than would be warranted by the fore- 
 going opinion of the Court. And the fii'St 
 exception is therefore overruled. 
 
 As to the second exception, I shall add 
 but a word or two of concurrence in what the 
 Master has said in his report. His views on 
 the subject are entirely satisfactory. I think 
 it preposterous, on this evidence, to set up 
 these bonds as having been intended as an 
 investment of the funds of the estate of 
 
 *245 
 
 *Timothy Street. As to their having been so 
 charged, in the settlement of the estate of 
 Mrs. Laurens, and as to the fact of Edward/ 
 R. Laurens, her executor, having received 
 credit for the amount of these bonds, as for 
 so much money received by him, on them, 
 for the estate of Street, I think, in the first 
 place, that the said settlement, as evidence, 
 was inadmissible, being res gesta between 
 other parties than the plaintiffs ; and in the 
 second place, if admissible, it was inconclu- 
 sive. The second exception is overruled. 
 
 The third exception is also overruled. The 
 most rigid rule of calculation is ai>plied, 
 where the accounting party is a defaulter 
 and refuses to account. I think the mode of 
 computation sufficiently lenient in this case. 
 
 The fourth exception is sustained. This 
 is not a case which comes within the provi- 
 sion of the Act of 1840, to which the Master 
 refers. That Act, (Sec. 1.3, p. 114.) declares, 
 "If any Master or Commissioner in Equity 
 shall be ordered by the Court to invest the 
 funds in his hands, and the accumulations
 
 STRKKT V. LAUKEXS 
 
 «24S 
 
 of interost thoroof. whon n^clvod by him. as t 
 fast as refi'ived, in st«K"k or other funds 
 yielding interest, and lie sliall n»';:le(t to do I 
 so, he and his sureties shall i)e ehar;ieahle | 
 with compound interest niton all such sums,! 
 to he calculated at half-yearly periods, from! 
 the time when such sums, anil the interest i 
 theret)n, were received, respectively." 
 
 In this case, the Master was ord»>red to 
 invest the fund, hut not the aeeunmlations of 
 interest. It is clearly not a ease under the 
 Act, who.se provisions, in this resiH'ct, are 
 hii;hly penal. I am not to extend its penal 
 operation hy construction — parti<-ularly in 
 the case of a surety, who has lu'en j^uilty of 
 no default, and whose duty is oidy to respond 
 to the defaults of her principal. Every case 
 of payment by a .surety is one of hardship. 
 They are favored in Kinuty; at the same 
 time, they are made rigidly to respond to all 
 just and fair demands auainst their princi- 
 pal. All that the provisi(uis of the Act of 
 1S40 requires, is full indemnity lor the in- 
 
 *246 
 terest upon interest, which he would ♦have 
 received, if the accruintc interest had lieen 
 invested, in pursuance of the order. 
 
 In this case, the parties entitled to the 
 fund will be fully indemniHed, if they receive 
 the fund ordered to be investi'd. with simple 
 interest thereon, from the time when it 
 .should have been investecl. The opinion of 
 the Court is, that the estate of Mrs. Kliza 
 Laurens is not responsible for any defalca- 
 tions of Edward R. Laurens, after the ex- 
 piration of his last term of olHce, for which 
 she was the surety. It is further the opin- 
 ion of the Court, that the estate of the said 
 Eliza Laurens is only to be charged with in- 
 terest on the amount of the indebtedness of 
 the said Edward R. Laurens, at the expira- 
 tion of the last term for which she, the said 
 Eliza Laurens, was his surety, with simple 
 interest thereon from that time to the time of 
 payment. It is so ordered and decreed. It is 
 further ordered and decreed, that the Mas- 
 ter's report be recommitted, and made Xo con- 
 form with this decree. 
 
 The defendants aitpealed, on the {^rounds: 
 
 1. The decree of INJO directs the Master to 
 invest the proceeds of the liroad-street house, 
 and the I'iiKkney and Meetinj; stn-et lots. 
 The IMnckney and Meeting street lots never 
 came to the hands of Mr. Laurens. The pro 
 ceeds of the Rroad-street house came to liis 
 hands, and were invested. So that the lia- 
 Itilityof Mr. Laurens is on account of the .sale 
 of the East Ray and Queen street property 
 only, which form part of what the deeree of 
 1S36 calls the residue. Rut there is no direc- 
 tion to invest the jtroceeds of that resi<lue; 
 and the money rect'ived by E. R. Laurens was, 
 in contemjibition of law, in liis hands, when 
 his ollice exjiired on the 9tl» December. 1S44. 
 and was transfern-d to the responsibility of 
 his snbseiiuent sureties. So that the tleeree 
 oujrht to have been in favm* of the defend- 
 
 ants; and the decree in favor of complain- 
 ants is found(>d in a mistake in fact. 
 
 -. That tlie lx)nds which were paid out of 
 ♦247 
 Mrs. Laurens's ♦estati*. to the Master, in 
 1S4(;. (inght to stand as a eredlt against any 
 default to whleh lier estate was liable, at 
 the time of her decease. 
 
 ."{. That the evldeiu-e taken by the Master 
 Is sufficient to raise the |iresuinptlon that 
 tliey were enteretl Into hy Mrs. Laurens for 
 the express purpose of covering the liabilities 
 of her son to the estate of StnH't, or to 
 some other suitor: and it would not nuike 
 any difference whether they were a|>plied t«» 
 one suitor or aimther. That the estjile of 
 Strei't has had the beiielit of them so far as 
 this, that (he payment <»f Hiese lK»nds in 
 1S4(>, creates a demand against the sureties 
 who were responsible. 
 
 4. That as between the sureties of 1S44 
 and the prior sureties, the surt-ties ot 1M4 
 are in the same situation as if they had 
 be<-ome the sureties of a new Master, who 
 re'-eived and wasted the bonds whidi the 
 estate of Mrs. I^uirens has paid. 
 
 ^1. That notwithstanding the irregidarity of 
 Eihvartl R. Laurens in vesting the funds of 
 Street in the bonds of Mrs. Ijuirens, payable 
 to the Masti-r, without designating the par- 
 ties benelicially entitUnl, the succes.sor of 
 Mr. Laurens and his sureties would have 
 been lial)le for the misapplication of them, 
 if such successor, being a different person, 
 had received them, and claimed and receiveil 
 ]iayment for them, as bonds taken for the 
 benefit of the estate of Street. 
 
 G. That in every view of the subject, the 
 eipiities of the legatees of Mrs. Laurens are 
 t'Utitied to preference, not only over the sure- 
 ties of the bond of 1M4. but over the creii- 
 itors. 
 
 7. That interest should be '-harged accord- 
 ing to the rule laid down in Plxon v. Hunter, 
 (.*> Hill, liOl.) and not in tlu> manner statin] 
 in the Master's report, and confirmed by the 
 decree. 
 
 I^esesne. IVtigru, for appellants, clt«'d 
 Schnell v. Schnxler. Rail. Eq. ;{.'U : .loyner 
 V. Cooper, 2 I'.all. 20:\ • liray v. Rrown, 1 
 Rich. ;;.".:!: Act 1S40, § 1(5. liO, li(J. II Stat. 
 lOS; Inited States v. Ecford, 1 How. I'oO : 
 Raker v. Rreston. (Jllmer, '_'.*lli; .Vrlington v. 
 Merrlcke, 2 Saund. 40.'! ; So. Ca. Society v. 
 Johnson, 1 McC. 41 ; People v. Janseu, 7 
 Johns. R. :•..•{*_•. 
 
 •248 
 
 •Magralh, .Menuiiinger, contra, cited Field 
 V. I'elot, McM. Eq.. :!!>!); Pratt v. Northam, 
 5 .Ma.sou. '•>."»; Ra|ihael v. Roi>hm, 11 Ves. 
 10(>: Hi Ves. 11'7: 7 John.s. Ch., 02.*]; 1 
 MK'..Ch. L'-JO: -J McC. Ch. 10. I'O.-], LMJo ; Hill 
 ou Trustees. ;{74. 
 
 The opinion of the Court was delivered by 
 
 I>AR«;AN'. Ch. Tlie first question made 
 under the appellants' first ground of appeal 
 
 99
 
 *248 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 depends upon the construcMon of the decree 
 of 1836, in the case of Thaddeus Street and 
 Daniel Boinest, against the widow and chil- 
 dren of Timothy Street, deer a. That de- 
 cree is in the following wort. 
 
 "1. The report of the Master in this case 
 having been read, it is ordered that the same 
 be confii-med. It is further ordered and de- 
 creed, that the contract for the sale of the 
 house and lot at the corner of East Bay and 
 Broad street, in the proceedings set forth, 
 be confirmed, and that the Master, on com- 
 pliance with the terms of sale, do execute 
 titles therefor to the said Benjamin Smith. 
 
 "2. It is further ordered and decreed, that 
 the two lots in Pinckney-street and the two 
 lots in Meeting-street be sold by Thaddeus 
 Street, either at public or private sale, with 
 the approbation of the Master of this Court, 
 and that the Master do execute titles there- 
 for to the purchasers, provided he approve 
 tie price and terms of sale agreed on. 
 
 "3. It is further ordered, that the two 
 stores on East Bay-street, the warehouse in 
 Gillon street, and the lot and dwelling house 
 in Queen-street, be sold by Thaddeus Street, 
 at such time hereafter as by himself and 
 Mrs. Street, the widow of Timothy Street, 
 may be deemed expedient, and that the Mas- 
 ter do execute titles therefor to the purchas- 
 er, provided he approve the price and terms 
 of sale agreed on. 
 
 "4. It is further ordered, that the pro- 
 ceeds of the sale of the house at the corner 
 of East Bay and Broad sti-eets be partitioned 
 as follows: viz. one third part thereof paid 
 to Thaddeus Street, one third part thereof 
 to Daniel Boinest, and the remaining third 
 part thereof to the Master of this Court, for 
 
 *249 
 the dis*tributees of Timothy Street, deceas- 
 ed. That the proceeds of the sales of the 
 lots in Pinckney-street be also partitioned 
 etiually between Thaddeus Street and the dis- 
 tributees of Timothy Street and that the 
 moiety belonging to the distributees of Tim- 
 othy Street, together with the proceeds of 
 the lots in Meeting-street, be paid to the 
 Master of this Court. 
 
 "5. It is further ordered, that the Master 
 do invest, in his official name, the amount 
 coming into his hands from the sales afore- 
 said, on account of the distributees of Tim- 
 othy Street, in such manner as may be 
 agreed on by himself and the administrators 
 of Timothy Street, to be held for the use of 
 the legal distributees of Timothy Street, and 
 transferred to the parties wlio may be de- 
 cided to be entitled thereto. 
 
 "6. And it is further ordered, that on the 
 sale of any part of the residue of the real 
 estate in bill mentioned, the proceeds thereof 
 be partitioned as follows: viz. one half there- 
 of to Thaddeus Street, and the remaining 
 half to the distributees of Timothy Street, 
 deceased, to be paid to the Master of this 
 Court, and distributed among the representa- 
 
 100 
 
 fives of Timothy Street, by the future o:-Jer 
 of this Court. 
 
 (Signed) Henry W. DeSaussure " 
 
 January 23. 1830. 
 
 From a proper interpretation of this de- 
 cree, does it appear that the Master was 
 directed to invest the shares of the heirs of 
 Timothy Street in the proceeds of all the 
 sales ordered in the decree? 
 
 On the part of the appellants, it is con- 
 tended, that there was no order for the in- 
 vestment of the proceeds of the sale of the 
 two stores on East Bay, the warehouse in 
 Gillon-street, and the dwelling house in 
 Queen-street. To sustain this view, reference 
 is made to the sixth or last clause of the 
 decree, which, it is said, relates only to the 
 lots which have been mentioned above ; and 
 this clause decrees a distribution, and orders 
 the shares of the distributees of Timothy 
 Street to be paid to the Master, but does not 
 order an investment. 
 
 *250 
 
 *It was for the share of the heirs of Tim- 
 othy Street in these lots that the defendant, 
 Eliza Laurens, is made liable by the Circuit 
 decree. And the argument is, that as E. R. 
 Laurens, the Master, was not ordered to in- 
 vest this fund, he has committed no default 
 or devastavit, for which Eliza Laurens, as 
 his surety, would be liable. This, 1 think, 
 would be giving a narrow and erroneous con- 
 struction to the decree. The first, second and 
 third clauses direct a sale of all the real 
 estate belonging to the parties that are men- 
 tioned or described in the pleadings. And 
 by the fifth clause it is "ordered, that the 
 Master do invest, in his oflicial name, the 
 amount coming into his hands from the sales 
 aforesaid, on account of the distributees of 
 Timothy Street." It would be illogical, and 
 a perversion of language, to say that the 
 part of the order quoted, which directed an 
 investment, did not relate to all the sales 
 which had been previously ordered. 
 
 If this be the true construction, it is ask- 
 ed, for what purpose was the sixth clause 
 intended? This question admits of an easy 
 and satisfactory solution. 
 
 An attentive consideration of the decree 
 will show that its objects were three-fold. 
 The first object was to order a sale ; the 
 second was to efl^ect a disti'ibution ; and the 
 third was to provide a proper investment 
 and security of the share of the heirs of 
 Timothy Street, who were infants. The 
 fourth clause directs a distribution of all the 
 lots which had been ordered to be sold in the 
 three preceding clauses, except the two 
 stores on East Bay, the warehouse in Gillon- 
 street, and the dwelling house in Queen- 
 street. This is followed by the fifth clause, 
 which orders the Master to invest, in his offi- 
 cial name, the amount coming into his liands 
 from the sales aforesaid, (that is, the sales 
 which had been previously ordered.) on ac- 
 count of the distributees of Timothy Street.
 
 STKEKT V. LAURKXS 
 
 This Is followea liy the sixth clause, \vlii<li. 
 witliout iiKKlifviii:; <»r contrudiotiii^' in any 
 maimer the incvinns parts of the decree, 
 simply decrees a distril,iitii»u of the proceeds 
 of tlie sales of tlu- two stores on East Bay, 
 the warehouse in (Jillon-street, and the dwel- 
 
 ♦251 
 lins house in *Queen-street, which had not 
 heen done in any previous part of the order. 
 The Court is of the opinion that the decree 
 of 18.30 admits of no other reasonable or con- 
 sistent interpretation. 
 
 Having arrived at this conclusion. It 
 follows, that l»y the terms of the decree, the 
 Master was bound to invest the share of the 
 heirs of Timothy Street in the pnxveds of 
 all the sales ordered hy the said decree. 
 This he has not done; and the conse(iuence 
 is, that the shares of the heirs of Timotliy 
 Street are not now forthcoming, having been 
 wasted by the said Master. And this de- 
 fault having been committed within those of- 
 ficial terms for which Mrs. Eliza Laurens 
 was his surety, she becomes liable to the dis- 
 tributees of Timothy Street, upon the princi- 
 ples laid down in the Circuit tlecree. I do 
 not know that I could make these principles 
 any clearer than I have in that decree. Suf- 
 fice it to say, that this Court fully concurs 
 in the views that I have therein expressed. 
 And, in fact, they were not controverted on 
 this trial. 
 
 But. admitting the construction of the de- 
 cree of 1S,3G contended for on l)ehalf of the 
 appellants, and that the Master was not 
 ordered to invest this fund by that decree, 
 this Court is of the opinion that the Master 
 committed a default, in not depositing the 
 fund in Bank, as rerpiired by the Act of 1S40. 
 And this default having been committed 
 during those official terms for which Mrs. 
 Laurens was his surety, she becomes, on 
 that account, liable. The master did depos- 
 ite the finid in Bank, in his official name, 
 for the estate of Street, but he very .soon aft- 
 erwards drew it all out, on his own private 
 checks. This course of the Master, to de- 
 posite money in Bank, and to draw it out 
 again on his own private check, is not a com- 
 pliance with the provisions of the Act of 
 1S40, according to their true intendment. 
 The object was to afford .security to the par- 
 ties, whose funds were in the keeiiing of the 
 Ma.ster. But what .'security would it he to 
 deposite, and then to check out the fund? 
 The Court would be wanting in the discharge 
 of its duty, if a Master were permitted, by 
 such subterfuges as this, to evade the plain 
 Intent of the law. 
 
 *252 
 ♦Furthermore: Mr. Laurens not only 
 checked out the funds of the estate of TiuK)- 
 thy Street, which he had deposited, but lie 
 misappropriated them. An inspection of 
 his Bank account ;iiid other evidence re- 
 ported by the i)reseMt Master, convince us. 
 that he not only ch(M.ked out tlie fund, but 
 
 that, in cljecking it out. he applied it t«i his 
 own private use. And this devastavit, hav- 
 ing occurred during the titlicial terms for 
 wliicli Mrs. IvJiurens was his surety, that 
 alone wouhl make her llalde. For it Cannot 
 be presumed that he paid over to liis suc- 
 cessor, (who in this instance was liiniself,) 
 a fund wliich he is proved to have misap- 
 propriated, and appli»Ml to his own use. previ- 
 ous to tlie ai»iMiintment of Ids succes.sor. I 
 need say no more on this branch of the case. 
 The second ground of appeal relates to tlie 
 i>onds of Mrs. Ijuirens to the .Master. (Fil- 
 ward U. Uiureiis.) the amount of whitli. the 
 a|)jiellants contend, should be allowed, as 
 credits on the claim of the plaintlff.s. For 
 the evidence on this subject, I refer to Ma.s- 
 ter Tupper's report, wliere it is given in 
 much detail. The b<»na fides of these trans- 
 actions is very «iuestionable. There are not 
 wanting circumstances to warrant the sus- 
 picion that they were not lntende<i as .securi- 
 ties for any estate in particular, but that 
 tliey were designed to lie applied and u.sed 
 as Mr. Laurr'iis' emergencies ndght re<iulre. 
 The consideration of the.se lumds does not 
 appear. They are all payai)le to E<lward 
 R. Laurens, Master in Equity, his succes- 
 sors in office or assigns. On each of them is 
 endorsed an acknowledgment of paym-Mit in 
 full by Mr. Laurens, which is without date. 
 The bonds do not show upon tlu'ir face to 
 what estate they belong, or for what pun»o.se 
 they were .given. On the first bond. 10th 
 .January. 1.S41, is endorsed "raiza Laurens 
 to Master in Equity, for estate of Street, 
 .'?1.0SL'..3;i." On the second l>ond. dated 14th 
 March. 1,S39. is en«lorsed "Eliza Laurens to 
 Master in Equity, bond for $7«M;.so." with no 
 indication of its belonging to any estate. On 
 tlie third Ixmd, dated 14th March. ls:!0. is 
 endorsed "Mrs. Eliza Laurens to .Master in 
 Equity, for Warren Andrews et ux. bond for 
 
 *253 
 6.34..30." The words "Warren An*drews «'t 
 ux" are stricken out. and there is no further 
 explanatitm. On the fourth bond, dated I'nii 
 .January. 1S41. is endorsed "Eliza Ijiurens 
 to Master in i:<iuity. for estate .)f McLckI. 
 $l.',207..").s." The words "for the estate of .Mc- 
 Leod " are strick«'n out. and "January. 1,S4.'>, 
 for estate Street," are added. On tiie fifth 
 bond, dat«Kl 10th January. 1S41. Is endorsed 
 "i:ilza J^iurens to Master In Equity, for es- 
 tate of II. I'. Hohnes. .f;(j;{5." 
 
 Mr. Laun-ns was the executor of Eliza 
 Ivaurens. In a .settlement of her estate, he 
 presented th.'se five bonds as demands 
 against that estate, as being held by him for 
 the estate of Street, together with many 
 other bonds of a similar character, belong- 
 ing, as was stated, to other estates, amount- 
 ing, in the aggregate, to .•?(!!. JUl.C.T. For all 
 of which, it .seems. Mr. Ivaurens. as executor, 
 was allowed credit, on balaiuing his ac- 
 counts. 
 
 Under these circumstanc-es, the appellants
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 seek to set up the amount of the five hoiids 
 before mentioned, against the claims of the 
 plaintiffs pro tanto. It is admitted that 
 these bonds cannot be regarded as invest- 
 ments for the estate of Street. But it is ar- 
 gued, that having been actually paid by Mrs. 
 Laurens for the estate of Street, to Master 
 Laurens, as his own successor, and after the 
 expiration of the time when the former was 
 bound as his surety, they should be allowed 
 as payments, though they might not be al- 
 lowable as investments. 
 
 If they were not intended as investments 
 for the estate of Street, then their payment 
 or non-payment is of no concern to that es- 
 tate. The Court perceives no sufficient evi- 
 dence to connect those bonds with the estate 
 of Street. The fact that Mr. Laurens was 
 allowed credit for the amount of those bonds, 
 in the settlement of his mother's estate, as 
 due to the estate of Street, does not conclude 
 the plaintiffs on this point. They were not 
 parties to those proceedings. Tliey can still 
 deny, and do deny, that they had any con- 
 cern or Interest in those bonds. In this view 
 of the case, the payment or non-payment of 
 the bonds becomes, as to these parties, an 
 Immaterial fact. I will not enlarge further 
 
 *254 
 upon this subject, but again refer to *Mr. 
 Tupper's report. This Court concurs, as the 
 Circuit Court did, in the views therein ex- 
 pressed. 
 
 Such being the decision of this Court upon 
 the second ground of appeal, the considera- 
 tion of the other grounds of appeal becomes 
 unimportant. 
 
 It is ordered and decreed that the Circuit 
 decree be affirmed, and that the appeal be 
 dismissed. 
 
 JOHNSTON, DUNKIN and WARDLAW, 
 CC, concurred. 
 Decree affirmed. 
 
 5 Rich. Eq. 254 
 
 CATHERINE GIBSON v. LOUISA F. MAR- 
 SHALL, T. L. ROGERS, and Others. 
 (Charleston. Jan. Term, 1853.) 
 
 [Dower (S=>S2.] 
 
 A writ for the admeasurement of dower, is- 
 sued from the Court of Equity, should direct 
 the commissioners to make au assif;iiment of 
 (lower, or an assessment in lieu of it, (in the 
 alternative,) according to the provisions of the 
 Act of 1786. 
 
 [Ed. Note.— Cited in Ilollev v. Glover, 36 S. 
 C. 419, 15 S. E. 605, 16 L. R. A. 776, 31 Am. 
 St. Rep. SS3 ; Frierson v. Jenkins, 75 S. C. 
 475, 55 S. E. 890. 
 
 For other cases, see Dower, Cent. Dig. § 321 ; 
 Dec. Dig. <S=S2.1 
 
 [Doiver <®=>99.1 
 
 The return of commissioners in dower, like 
 the report of the Master, is under the control 
 of the Court: it is intended to satisfy the con- 
 science and judicial discretion of the Chancel- 
 
 lor ; and though neither corruption nor mis- 
 feasance on the part of the commissioners be 
 charged, the Court may, on ex parte afhdavits, 
 showing error or mistake, refuse to C(jnlirm the 
 return, and refer it to the Master, to take evi- 
 dence and report upon the facts. 
 
 [Ed. Note.— Cited in Gibson v. Marshall, 
 Rich. Eq. 215; Mellir-hamp v. Seabrook, 2 S. 
 C. 371; Irwin v. Kr.Kjks. 19 S. C. 102; Fooshe 
 V. Merriwether, 20 S. C 340. 
 
 For other cases, see Dower, Cent. Dig. § 347; 
 Dec. Dig. <g=>99.1 
 
 The late William Gibson, jun., died pos- 
 sessed of real and personal estate, which, by 
 his last will, he devised to his three chil- 
 dren, and to the defendant, Louisa F. ]Mar- 
 shall. He made no provision in his will for 
 his widow, who is the complainant, and at 
 the time of his death was living with him 
 and their children in one of his houses. Soon 
 after his death, his executors, under one of 
 the provisions of the will, sold the real es- 
 tate, suliject to her claim of dower, (of which 
 the purchasers had full notice,) and the de- 
 fendants, Marshall and Rodgers, became the 
 purchasers. This bill was fil«?d by his widow, 
 
 *255 
 for an account *of the rents, and for an 
 admeasurement of her dower. Upon hearing 
 of the case, at Charleston, September, 1851, 
 before Dunkin, Ch., the following decree was 
 made: 
 
 Dunkin, Ch. It is ordered and decreed, 
 that a writ do issue for the admeasurement 
 of complainant's dower in the premises de- 
 scribed in the pleadings, situate in Franklin- 
 street and in Smith-street, respectively. 
 That the writ be directed to Thos. D. Condy, 
 David Lopez, C. C. Trumbo, M. McBride and 
 Thos. Farr Capers, reciuiring them, or a 
 majority of them, to execute the said writ, 
 according to the provisions of the Act of 
 Assembly, iu such case made and provided, 
 and that they make a return of their pro- 
 ceedings in the premises, under their hands 
 and seals, as therein directed, for the final 
 judgment and determination of the Court. 
 
 The complainant, Catherine B. Gibson, ap- 
 pealed from so much of the decree as direct- 
 ed the Commissioners to execute the writ for 
 the admeastirement of dower "according to 
 the provisions of the Act of Assembly in 
 such case made and provided," on the 
 grounds : 
 
 1. .Because the several Acts of Assembly, 
 in relation to dower, merely give the dower- 
 ess an additional process and remedy, if she 
 chooses to accept their provisions, and file 
 her petition in Common Pleas; but without 
 that, do not deprive her of any right she 
 previotisly had, of pursuing her remedy by 
 writ of dower at common law, or by bill iu 
 this Court, iu which case the admeasurement 
 of dower is governed by the common law, 
 and not by statute. 
 
 2. Because, having elected to proceed in 
 this Court, she declines to accept the pro- 
 
 <S=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 
 
 102
 
 GIBSON V. MARSHALL 
 
 *2oS 
 
 visions of tlu> statute law, aiul is entitled i very integrity, to fall shurt of their whole 
 to have her tlower admeasuretl acrordinfily, i duty. 
 
 and eaniiot he conipelled to aerept a coninni- ; The form of this writ is smh as to require 
 tation in tuimey under the statute, which she the C'omniissittners to make an aetual ad- 
 had the privilege of doing by petition in ' measurement and assignment of the tUiwer 
 Comniun I'ieas. without more; aind by swearing to execute 
 
 *266 the writ, the ('(imndsstoners were made to 
 
 ♦The case was not rea<'hed during the sit- bind ami confine themselves to the specific 
 ting of the Appeal I'ourt in Janimry, isoi. act of admeasurement: and It may Ix-. that 
 rending the appeal, the plaintifi' sued out a their return of an actual assessment has fol- 
 writ of dower, reiiuiring flu- Connnissioners l<>w»'d from tlie limit thus set to their powers, 
 to admeasure and assign one-third of the The foruj atlopted, which is contrary to 
 lands specifically to the plaintiff, for lier that which has ever prevailed under the stat- 
 dower, without any reference to the discre- I ute, is sought to be justified by what ap- 
 tion of the Commissioners, under the Act, | pears' to me to l»e a very narrow lonstruc- 
 to assess a sum of money in lieu of dower, tion of its provisions. It Is said that it re- 
 if, in their opinion, the lands could not be <iuires a writ to l>e Issued, commanding the 
 fairly divided without manifest disadvan- Connnissiouers to admeasure the dower, etc., 
 tage. For this defect, a motion was made by and that the writ must go forth with that 
 the (U'fendants, at .March sittings, is.'c'. that mandate alone. And that, although the stat- 
 tlie writ Ite set aside. The motion was made ute pn»ceeds to empower the I'oninjissioners 
 ln'fore Johnston, Ch., who made the follow- ' to assess a sum in lieu of (h»wer, in case 
 ing ortler: , they cannot admeasure the latter without 
 
 .Johnston, Ch. The motion now made bj- tlisadvantage to some of the parties, this 
 the defendants stands upon a different foot- 1 power should not a|ipear in the dire<tions 
 ing from the one made a few days ago. contained in the writ. 
 
 Then it was moved that it be referred to one j The nece.ssity for the full power of the 
 of the Masters, to take testimony, whether Comnussioners (in the alternatives contem- 
 the conclusions to which the Counnissioners i)iated by the A<*ti being set forth, by way of 
 in partition had come, were not unreasonable tlirections. appears from the fact that the 
 and unjust. The motion was refused, be- Conmiissioners are required to take an oath 
 cause it proposed to transfer the fiuictions ' to e.\e<ute the writ. If. as was argued, the 
 properly belonging to the Commissioners to Connnissiouers, though sworn t<» admeasure 
 the Master. ! the dower, are at liberty to notice their 
 
 The present motion is to set aside the writ, power under the statute ni»t to admeasure it. 
 for irregularities and iniperfections upon its but to assess a sum as a compensation for it, 
 face, calculated to influence the return of the this plainly amounts to this, that the Act 
 (Commissioners. contains a dispensation to them, absolving 
 
 The order of Chancellor Dunkin was, that them from the only specific act, which, it is 
 a writ issue, for the admeasurement of the said, the writ can properly direct them to do, 
 
 |)Iaintiff's dower, inider the statute. («) The 
 lilaintiff, on that occasion, contended that 
 she was entitled to have an actual assign- 
 ment of her dower, at common law, and not 
 such an assignment, or an assessment in lieu 
 of it, (in the alternative,) under the statute; 
 and an appeal was taken from the Chancel- 
 l(jr's <irder, because it directed the proceeding 
 U) be had under the statute. 
 
 The form ado|»ted by the i)laintiff, in issu- 
 ing the writ of partition under the order, 
 was such as to give her all the advantages 
 
 ♦258 
 
 and which ♦the staliu»> specifically binds 
 them by oath to do. This cannot be. 
 
 If the writ is Intended to leave the Com- 
 missioners at liberty to perform their whole 
 duty — if it is not intended to entraii an<l 
 mislead them in the performance of it — let 
 the writ go forth describing their duty to 
 them. This can In no cn.se do any barm: 
 and it may in some cases obviate mistakes 
 and injustice. The writ, as a matter of 
 
 <he would have possessed, had the order been -^""""l l'»iifti«c. should ct.nform to the scope 
 
 and true intention of the statute: and not 
 
 ♦257 
 
 granted ♦her for which she contended: or if 
 her aiipeal had been heard and sustained: 
 and I think the writ shoultl be recalh'd, for 
 this irregularity. 
 
 The iiroper form of the writ presents a 
 very imiiortant (piestit)n tif practi<'e, because 
 the Commissioners are re(|uired to fake an 
 oath to execute it, according to its mandates. 
 If these be limited, so as to set forth but a 
 part of their duties, the necessary conse- 
 quence is. that they are comitelled, by their 
 
 (a) 4 Stat. 742. 
 
 be re.strlct»>d to part of the duties it intends 
 to aiutbori/.e and recpiire. 
 
 Such, as I have s.iid In-fore, is the form of 
 writs (tf this description luTefofore: and a 
 departure from it should not be en<'ouraged. 
 
 It is ordered, that a writ be franu'd by 
 Mr. Tujiper. one of the .Masters, In conform- 
 ity with this opinion: and Issued to five Com- 
 missioners, two to be named by the plainfifT. 
 two by the defendants claiming the land, 
 and the fifth by said Master, re(|uiring them, 
 or a majority of them, to I'xecute said writ. 
 If either party, after notice, refuses or neg-
 
 *258 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 lects to name Commissioners, tlie said Mas- i 
 ter to name them in his place. ! 
 
 It is further ordered, that the writ in par- 1 
 tition, heretofore issued, be set aside. 
 
 The injunction, heretofore ordered, to be 
 continued until further order. And as it 
 appears that the plaintiff has a decree, en- 
 titling her to have her dower laid off and 
 assessed, the security required for the said 
 injunction, in the previous order, is limited 
 to the amount of damages and costs recov- 
 ered against the plaintiff at law. 
 
 In the order of Chancellor Johnston all 
 parties acquiesced. 
 
 The new writ thus directed was issued and 
 executed. The Commissioners made their 
 return, meting out and assigning the plain- 
 tiff's dower in the lot in Franklin-street, and 
 assessing a sum of money, in lieu of her 
 dower, in the lot in Smith-street. As to the 
 assessment in the latter lot, the parties were 
 satisfied; but the defendant, Marshall, con- 
 
 *259 
 tested the return as to the lot *in Franklin- 
 street, and submitted afladavits, showing that 
 the portion assigned to the plaintiff exceeded 
 in value her interest, and embraced all the 
 houses and improvements, and left a part 
 of the lot, covered by water and mud, for 
 the defendant's share. These atfidavits, while 
 they imputed no corrupt motive to the Com- 
 missioners, exhibited error of judgment, as 
 to values, in distributing the lot. 
 
 Upon these affidavits, Chancellor Dargan, 
 at July sittings, 1852, on motion of defend- 
 ant, INIarshall, 
 
 Ordered a reference to one of the Masters, 
 to take evidence and report, whether the ad- 
 measurement made by the Commissioners, in 
 assigning the plaintiff's dower in the lot in 
 Franklin-street, was not contrary to the Act 
 of 1824, illegal and inequitable. 
 
 From this order the plaintiff" also appealed, 
 objecting to the reference to the master on 
 ex parte aflfidavits; and further, that the 
 affidavits impute "no malpractice or error of 
 principle to the Commissioners," and nothing 
 beyond a mijstake in valuation. 
 
 Campbell, for appellant. 
 
 Phillips, contra. 
 
 Payne v. Payne, Dud. Eq. 127; Brown v. 
 Duncan, 4 McC. 346; Wright v. Jennings, 1 
 Bail. 280; Lesesue v. Russell, 1 Bay, 459; 
 McCreary v. Cloud, 2 Bail. 344; Scott v. 
 Scott, 1 Bay, 506; Hawkins v. Hall, 2 Bay, 
 449 ; Beaty v. Hearst, 1 McM. 33 ; 1 Des. 110, 
 115; Stock V. Parker, 2 McC. Ch. 382; David- 
 son V. Graves, Bail. Eq. 272; Brown v. Cald- 
 well, Sp. Eq. 322 ; and Woodward v. Wood- 
 ward, 2 Rich. Eq. 23, were cited. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW, Ch. [Who, after stating the 
 facts, and the proceedings that had been 
 had in the cause, proceeded as follows:] It 
 is manifest from this statement, that as the 
 
 104 
 
 plaintiff has elected to execute Chanci^lor 
 Johnston's decree, by issuing her writ in con- 
 formity thereto, and actually accepting a 
 
 •■=260 
 commutation *for her dower as to the lot in 
 Smith-street, she has little cause of com- 
 plaint as to Chancellor Dunkin's decretal or- 
 der. Still she may technically insist upon 
 her grounds of appeal from this order, so far 
 as the lot in Franklin-street is invoived. 
 
 The question of procedure is important. 
 The express enactments of the Act of 1786 
 provide merely a mode of obtaining dower, 
 or its equivalent, in the Court of Common 
 Pleas, and iiave no dii'ect operation on the 
 pre-existing and independent jurisdicticm and 
 remedies of this Court on the subject. It was 
 the practice of this Court, before the Act of 
 1786, to compensate widows for dower by 
 commutation in money. [Miller v. Cape] 1 
 Des. 110; [Miller v. Miller, Id. Ill]; [Clifford 
 v. Clifford] Id. 115. The value of the dower 
 in money was then ordinarily ascertained by 
 the Master, on reference to him for the pur- 
 pose: but since tlie Act of 1780. the Court 
 has usually employed the instrumentality of 
 commissioners provided by the Act, to ascer- 
 tain this value. Stock v. Parker, 2 McC. Eq. 
 382. There is no reasonable objection to this 
 adoption of new machinery, to complete an 
 old remedy. On the contrary, there is spe- 
 cial propriety in making the procedure uni- 
 form in both Courts. The commissioners are 
 not authorized by the Act to assess a sum of 
 money in lieu of dower, until they have de- 
 termined that the lands can not be fairly di- 
 vided without manifest disadvantage. It is 
 clear, that this Court, from the earliest 
 epoch after its organization of which we have 
 any report, pursued a procedure in execution 
 of the principles of equity, dift"erent, in some 
 respects, from that of like Courts in the coun- 
 try from which we derive most of our insti- 
 tutions: notwithstanding the Act of 1721 re- 
 quired this Court to conform generally to the 
 usages and practices of the Court of Chan- 
 cery in South Britain. In no other instance, 
 perhaps, has our departure from the English 
 practice been so great, as in this particular 
 of commuting the share of a dowress, or of 
 one entitled to partition, by sale of the prem- 
 ises or assessment, into its monied value, in- 
 stead of making specific assignment. Our 
 practice, however, is too inveterate and ad- 
 vantageous to be now disturbed. 
 
 The Act of 1791 authorizes the Court to sell 
 *261 
 the premises for *partition, only in cases of 
 intestacy, yet this Court is in the constant 
 practice, departing from the procedure of the 
 Court of Chancery in England, of effecting 
 partition by sale in cases of testacy. Pell v. 
 Ball, 1 Rich. Eq. 387. No Act of the Assem- 
 bly prescribes the term for advertisement of 
 the sales of estates made by this Court, yet 
 we habitually conform to the requisitions of 
 the Sheriff's Act of 1839. It is ordered and
 
 nOYCE V. BOYCE 
 
 *26o 
 
 street, be s<» iiKulitied as merely to require 
 him to take evideme and rf;>ort uiuui the 
 facts as to sucii assi)^iuiieiit. In all other re- 
 sptH-ts the decrees are alliniied. and the a\)- 
 l>eals dismissed. 
 
 lUNKlN ami 1»AK(;a.\, CC. concurred. 
 
 JOHNSTON. Ch.. alj.seut at the hearing. 
 Appeals disni.'ssed. 
 
 decreed, that the ajipeal from Cliancellor dower to the i.laintifT in the lot in Franklin 
 Dunkin's decretal order be dismissed. 
 
 It remains to consider the appeal from 
 Chancelltir I)ar>,'an's order, refusing to con- 
 tirm the return of the coiumissioners. and di- 
 recting a reference to the .Master to take tes- 
 timony as to the in»H|uality and injustice of 
 the specific assignment of plaintiff's dower in 
 the lot in Franklin-street, and to rei)ort upon 
 the facts. We suppctse that in this Court, 
 since we liave sulistituted conunissioners for 
 the Master as our agent to ascertain tne val- 
 ue of (lower in the itrcmises. the return of the 
 commissioners is under our sui»ervision to tlie 
 same extent as would Ih' the report of the 
 Master in such ca.se. In rayn«' v. Tayne. 
 Dud. E(i. IL'T. the Court says: -The return 
 of the commissioners must necessarily be un- 
 der the control of the Court. There would be 
 great defect of justice, if the Court had not 
 the power of correcting their errors, irregu- 
 larities or partialities.'' Even in the Law 
 Court, notwithstanding the Act of ITSO de- 
 clares that the return sliall Im' binding and 
 conclusive upon the parties interested, it is 
 decided, in IJeaty v. Hearst. 1 M<M. lill, that 
 •'there is no douiit that a Circuit Judge may 
 withhold conlirniation of suc-h a return, either 
 in dower, partition, or in any other jiroceed- 
 ing, and allow further time, on sucli showing 
 as satisfies him that there has been error or 
 mistake, or any departure from estaiilished 
 legal rules." It is not necessary that there 
 should be any corruption or misfeasance on 
 tlie part of the commissioners: it is enough, 
 to set aside their return, that tliey have mis- 
 taken the extent and value of the interests 
 or shares of the parties concerned. Their 
 return is intended to satisfy the conscience 
 
 *262 
 and judicial discretion of tlie Chancel*lor, 
 and any circumstance exhibiting error on 
 their part may justify him in refraining to ; 
 do that wliicli seems to liim to be inequitable. 
 In the present case, we have not before us 
 the particular affidavits upiui wliich the 
 Chancellor acted ; but we have no reason to 
 doubt that his judicial discretion in the mat- 
 ter was judiciously exercisi-d. It was an act 
 of indulgence to the plaintift", to refer it to 
 the Ma.ster, to take evidence on the point of 
 the return on both sides: whereas, the Chaa- 
 cellor might have proceeded to act definitive- 
 ly upon the ex i)arte testimony. 
 
 The form of the order in this case, probably 
 prepared by counsel, is liable to some just 
 exception. The Act of ls:.'4 has no applini- 
 tiou to the case, as the land was not alienat- 
 ed by the husband of demandant during cov- 
 erture. So. tt)o, there is impropriety in the 
 seeming delegation by the Chancellor to the 
 Master, to judge of the legality and eciuity of 
 the conduct of fiie comnnssioners. in assign- 
 ing the iilaintitrs dower. 
 
 It is ordered, that the ord»'r of reference 
 to Master Tupp»'r. as to the assignment of 
 
 5 Rich. Eq. *263 
 
 ♦JOHN BOYCK. Admr v. \V. \V. I'.( )VCi: 
 and Otbens. 
 
 (Cbarleston, Jan. Term, lS5.*i.) 
 
 1 Execution €=>"-'^^. I 
 
 Cndcr a bill- to iiiarshal a.sscts. filed bv an 
 adniinisirator. tli«- estate, real and personal, of 
 the intestate was ..njer.d to be sold by the 
 Master, ami creditors were enjoined fronl pro- 
 ceeding at law. A cre<litor, win. Iiad come in 
 and proved his <lebt. had certain lands of the 
 intestate levied <in an<l sold under liis ti. fa. at 
 law, aud pinelia.sed tlieni hiin.seli. .Near eight 
 years afterwards, a supi.lenuiital bill was tiled, 
 to set aside the sale, aud it was .so ordered: — 
 Jhid, that defendant, the creditor, must ac- 
 count for rents and profits from the time of Lis 
 purchase. 
 
 [VA. .Note.— Cited in Scaife v. Thoai.sou, ir> 
 S. C. oUS; Ilardiu v. Melton, I'S .S. c. -liS 4 
 S. K. !SU5. II S. 1'.. 4l';{. 
 
 For other eases, see Execution. Cent. l>ig. 
 § 8:i.j; Dec. L>ig. «&=>:JSS.J 
 
 {ExcctitorH (1)1(1 Adiiiiiiiiitratoni C==>47.'!, 474.] 
 
 Where a bill to marshal the a.ssets of an in- 
 testate, is filed, any creditor who comes in and 
 proves his debt under the Masters notice, be- 
 comes a jiarty to the decree, au actor in the 
 proceedings, and is entitled to any onier to 
 speed the cause or carry tiie dtrree into sueeess- 
 fid execution. 
 
 lEd. Note.— Cited in Westlield v. Westtield, 
 i;5 S. C. 4.S5. 
 
 For other eases, see Executors and Admin- 
 istrators, Cent. Itig. iiS lltm JtKJO; L>ec. Dig. 
 <:=47;{, 474.1 
 
 This cau.se was first In-ard at Cljarleston, 
 March, l.s.ji. before Wardlaw. Ch.. who made 
 the following decrtH': 
 
 >\ ardlaw. Ch. Of the volundnoiis pleadings 
 in this (iise. a brief abstract may sutti<e for 
 the tiuestions now presented for decision. 
 
 The plaintiff filed his original bill. July J, 
 1S40, alleging that the iH«rsonal ass«'ts of his 
 iide.state were gn-afly iiia(b><piate to the pay- 
 ment of the debts, and had ln'cn a|)plied by 
 him, as aumitiistrator, towjirds this etid, so 
 far as In* cmdd proceed safely — that the real 
 estate was under mortgages to a large 
 amount — that (vrtain creditors had (d)tained 
 judgmetits agaitist lilm. and others had in- 
 stltut«'d and threateinHl suits — and pr.'iying 
 the direction and aid •>f the court, in the ad- 
 mlidstration tifj tlie as.set.s. ami injumtloii 
 against cre«litors fntm procwding elst-wliere 
 for the recovery of their debts. Willj.-ini W. 
 Hoyce. oniy (i> heir with plaiidiff of the in- 
 
 ^=3Fur other cases see suuie topic aud KliV-Nt.MbEK lu all Kej-NunibereJ Digests and ludexes 
 
 105
 
 *263 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 testate, the judgment creditors, and some of 
 the mortgagees of the realty, were made 
 defendants. On July 14, 1840, it was ordered 
 by the Court, that the plaintiff account before 
 the Master for the administration of the 
 estate of his intestate— that the Master take 
 an acc-ount of the real and personal estate of 
 the intestate, and of tlie liens thereon, and 
 report as to the most ethcient mode of dis- 
 posing of the same, and of satisfying the 
 
 *264 
 creditors, in the *order in which they were 
 entitled to payment out of the real and per- 
 sonal assets— that the Master call in the 
 creditors, by advertisement in the Gazettes, 
 to prove their demands before liim — and that 
 all creditors of the intestate, whether parties 
 to the suit or not, upon notice of this decree, 
 forbear and be restrained and enjoined from 
 pi-oceeding at Law, or in Equity, or otherwise 
 than therein provided, for the recovery of 
 tlieir debts ; with leave to creditors to apply 
 for the suspension or moditication of the or- 
 der. On July 25, 1840, after this decree for 
 account and injunction, and with notice there- 
 of, E. P. Starr, for Starr & Howland, took 
 judgment in the City Court of Cliarleston, 
 against the administrator, for the debt of the 
 firm against the intestate. On January 29. 
 1841, the Master made a report upon the debts 
 of the intestate, and among these included the 
 debt of Starr & Howland, whicli was pro- 
 duced to liim and proved by the attorney who 
 liad conducted said suit in the City Court ; 
 and his report was confirmed, and the Master 
 was ordered to sell the real and personal es- 
 tate of the intestate, and apply the proceeds 
 of sale to the payment of the debts, accord- 
 ing to their legal priority. Various reports 
 were afterwards made by the Master, excus- 
 ing the non-execution of tlie order of sale; 
 and other directions for sale were given 
 him by the Court. Afterwards E. P. Starr 
 procured an execution, fieri facias, founded 
 on the judgment of the City Court, to be 
 levied on certain lots of intestate, and on 
 July 5, 1842, after explicit notification of the 
 decree of this Court for account and injunc- 
 tion, procured these lots to be sold by the 
 Sheriff, and purchased the same for the 
 price of $80,. being about the one two hundreth 
 part of their value, took possession of them, 
 and has ever since received the rents and prof- 
 Its. On April 29, 1850, plaintiff filed his sup- 
 plemental bill against Starr and others, re- 
 citing the proceedings of tlie original bill, 
 and excusing his acquiescence in Starr's pos- 
 session, by the statements of his absence 
 from the State, and his trust in tlie learning 
 and energy of his counsel, to be stimulated, 
 as he supposed, by the interested oversight of 
 his brother and co-heir, and praying, among 
 
 *265 
 other things, that Starr should *deliver 
 possession of the estate purchased by him, 
 and account for the rents and profits. To this 
 bill Starr demurs, on the ground that plain- 
 
 106 
 
 tiff, as administrator of the goods, chattels 
 and credits, has no right to implead him 
 as to the real estate ; and pleads that he is 
 in possession of tlie lots aforesaid by legal 
 title, namely, by purchase of tlie whole at 
 Sheriff's sale, under ti. fa., and by purchase 
 of a mortgage of one portion thereof, and that 
 this Court lias no jurisdiction to try the 
 titles to lands. The case comes before me 
 upon this demurrer and tliis plea. I have 
 much less ditticulty as to the proper judg- 
 ment on the points presented, than in ex- 
 pressing the reason for the judgment, without 
 indicating opinions on matters which should 
 be reserved for future adjudication. It is 
 safer that my reasoning at this time should 
 be in brief, perhaps inconsequent, than that 
 I should seem to prejudge the grave matters 
 in the case which remain behind. 
 
 1. As to the demurrer. The administra- 
 tor with us, although peculiarly charged with 
 the goods, chattels and credits, represents to 
 some extent the real estate and the heirs: 
 for on a judgment against liim the laud of 
 the intestate may be sold, as in fact it was in 
 the present case. Under the operation of the 
 statute of Geo. 2, of force here, lands are 
 liable, equally with personalty, for the debts 
 of the deceased, and may be regarded as 
 legal assets, in the hands of the administra- 
 tor. In England, bills of conformity, as they 
 are called, by an executor or administrator 
 of an insolvent estate, for tlie directions of 
 the Court, in the administration at the 
 assets, are not very usual, nor much encour- 
 aged, (Story Eq. § 544 ; Brooks v. Reynolds, 
 1 Bro. Ch. R. 183); but with us, from tlie 
 equal liability of real estates for debts, and 
 from the indisposition of Courts to spur 
 creditors in tlie race for diligence, tliey are 
 common and favored. Our procedure is well 
 justified in Thomson, v. Palmer, 2 Rich. Eq. 35. 
 "Such a bill is not known to the Englisli 
 practice ; but it has been long established 
 among us, is well known to every member 
 of the profession, and is too wholesome to be 
 abrogated. Among us. the real estate as well 
 
 *266 
 as the personal *estate, is liable for the 
 debts of the deceased; but no order for the 
 sale of the former. In aid of assets, can be 
 obtained, except in this Court. It is mani- 
 festly for the benefit of all parties, when this 
 is necessary, tliat the whole of the funds 
 should be brought together, and all the credi- 
 tors brought in, and that the estate should be 
 administered in one suit. This practice ad- 
 ju.sts conflicting claims without prejudice 
 to the trustee, and without injury to any 
 party, and prevents unnecessary litigation. 
 Where the executor files such a bill, the prac- 
 tice is to select one or two of the principal 
 creditors as defendants ; and to bring in the 
 others by an order. None of them need an- 
 swer except when specially required," &c., 
 "but all are enjoined, either by an order, or 
 by injunction issued in conformity to an or-
 
 BOYCE V. BOYCE 
 
 *?«?8 
 
 tier ol.taiiu'd, from suing elsewluTe.- This i haviiij,' been read and r..nsideml : it is. on 
 extract is so explirit, and so convincing. as|nj(ition of cnniplainaiif s solicitor, ordered 
 to supersede the necessity of much reniarlv and decn-^'d, tliat tlie purdiase of the i)reni- 
 npon either demurrer or plea. In the i-ase I ises in Societ.v-street. (descril>ed in the plead- 
 under consideration, the administrator hasjim,',t l.y Edwin V. Starr, he set aside, and 
 exliihited a propj-r case against lieirs and j that he do deliver fortliwith the possession 
 creditors, for the administration of tlie whole I of the same to .James Tupper. one of the 
 estate in one suit, under the direction oflMasters of this Court; and tliat lie. Edwin 
 
 this Court. 
 
 li. Then as to the plea. This Court does not 
 undertake to try the legal title to lands, 
 except as incidental to matters of eciultahle 
 cognizance; but it does undertake to de- 
 termine whether the legal titln has bwn 
 honestly acciuired. and may he honestly ex- 
 erted. It may relieve against a legal title 
 acquired by fraud, accident or mistake; or 
 it may impress ui)on a legal pn»prietor, 
 against his will, under eiiuitaljle circumstanc- 
 es, the character of a trustee; or It mav in- 
 
 1*. Starr, account In-fore said Master for the 
 rents and jirotits of said prendsi-s. from the 
 time of his purchase and taking possession 
 thereof. 
 
 It is further ordered and decre<'d. that the 
 said .Master do sell at public auction the sai<l 
 premises, on terms to be tixed by his tllsire- 
 tion. and he also reinirt upon the existing 
 debts of. and Ib-ns upon, the intestate's es- 
 
 •268 
 
 tat«', and how. in what projiortloiis. ♦and In 
 
 what onler. they are entitled to claim the 
 
 hibit the unconscientious use and employment i pr<icee<ls <>f the re-sale and of the rents and 
 of any legal advantage. Without improperly 
 <lwelling on the circumstancvs of this case, 
 it is enough to say that there is such sus- 
 picion thrown upon the transactions of the 
 defendant. Starr, in aciiuiring his title, as 
 to justify full investigation. A plausible 
 case is made against him. retpiiring explana- 
 tion on his part, of liis disregarding the de- 
 cree of this Court, which should have bound 
 him as it did others, and of bis buying up. 
 at a sacritice that startles common sense and 
 justice, the assets which tlie Court bad un- 
 
 *267 
 (lertaken to adminis*ter. In the answer sup- 
 jiorting bis plea, he denies that a writ of 
 injunction was served upon him. but he does 
 nt)t deny notice of the decree for account and 
 injunction ; he denies that lie authorized 
 bis attorney to present bis demand for proof, 
 before the ^Master, but he d(»es not deny his 
 employment of this attorney to collect this 
 demand, with general authority to i)ursue 
 any mode that might seem proper, in bis skill 
 and discretion; nor that after notice lie 
 acquiesced in the particular mode of collec- 
 tion pursued by his attorney. The bill, .so 
 far as it is not contradicted by the plea, must 
 lie assumed to be true, in judging of the 
 validity of the plea. Mitf. WO. If the de- 
 fendant cannot be protected in his legal title, 
 be is liable, as a matter of course, fttr rents 
 and i)rolits. Martin and AValter v. Evans, I 
 Strob. Eq. ;{oO. I am of oiiinion the defend- 
 ant must answer the case made against him. 
 It is ordered and decreed, that the demurrer 
 and plea of the defendant. E. V. Starr, be 
 overruled, and that said defendant make full 
 answer, aeeordingi to (be practice of tills 
 Court. 
 
 At March sittings, 1852, the cause was 
 beard liefoie .Johnston, Cli., who made the 
 following decree : 
 
 Johnston. Ch. This case coining up tUv a 
 bearing, and the bill, answers, jirevious or- 
 ders aud decrees, as also the report of the 
 Master and the testimony taken U-foie him 
 
 prohts. 
 
 The «lefendant. Edwin I*. Starr, ajipealcd 
 from so much of his Honor. Chancellor .John- 
 ston's decree, as directs the a<-count of rents 
 and proJits to be taken from the time of the 
 defendant, Starr's i>urcliase and possession. 
 
 1. Becau.se the account of n-nts sli<iuld not 
 go farther ba<k than the tiling of the bill. 
 
 2. Because the account of rents shoubl not 
 go farther back than four years prior to the 
 filing of the bill. 
 
 I For subseijuent opinion, see G Kbh. Ei]. 
 302.] 
 
 Memminger. f(»r appellant. 
 Cunningham, for plaintiff. 
 The opinion of the Court was delivered by 
 
 nrXKlX. Cli. The defendant has. very 
 properly, made no ap])eal from .so much of 
 the decree, heretofore pronounced, as set 
 aside his purcha.<e of the itremi.ses in Society- 
 street, and declared him llahle for the rents 
 and profits. But it is insisted, that the ac- 
 count for rents and profits slunild not be car- 
 ried beyond the time of filing the bill. or. at 
 farthest. l>eyond four years prior thereto. 
 (Jeiieraily, it cannot be questioned that a 
 party is resi»onsible for the use of property 
 which d(H's not l)elong to him, and of which 
 he has unlawfully obtained possesslcui. On 
 the other hand, in a<lministerlng relief 
 again.st a party who has acted under Igno- 
 rance or mistake, and In favor of a party who 
 has been supine or negligent, this Court ex- 
 ercises a dIscretliMi in relation to the ac- 
 count, which is necessjirlly nuMlified by the 
 circumstances. The rule declannl in Row- 
 land v. Best. 2 McC. Eq. 320. has been re- 
 jieatedly recognized. "It Is not an unccau- 
 mon case for a party who lies by and iK^rmits 
 another to o<cupy ami enjoy jtroperty as his 
 own. under an apparent good title, which 
 he might and ought to have brought Into dis- 
 cussion miicli earlier, to be restricted In his 
 demand for an account of rents and profits, 
 to the filing of the bill, or four years before." 
 
 107
 
 ^'269 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 *269 
 
 *The argument insists tliat tlie defendant 
 is entitled to the benefit of tliis modification. 
 The ground, upon which the decrees hereto- 
 fore pronounced the defendant's purchase in- 
 valid, was, that he was a party to the decree 
 of July 14, 1840, and that his subseiiuent pro- 
 ceedings in the City Court were in violation 
 and contempt of the injunction thereby or- 
 dered. His possession, therefore, under the 
 Sheriff's sale, was tortious in its inception. 
 But it is said there was laches. It appears 
 to the Court that this argument proceeds 
 from a misapprehension of the character of 
 the proceedings, and of the decretal orders 
 of 1840 and 1841. The bill was to marshal 
 the assets, real and personal. "The settled 
 doctrine," says Chancellor Kent, Thompson 
 V. Brown, 4 Johns. Ch., 643, "is that the de- 
 cree to account, in such cases, is for the bene- 
 fit of all the creditors, and in the nature of 
 a judgment for all. All are entitled. And 
 from the date of such decree an injunction 
 will be granted to stay all proceedings of any 
 of the creditors at law." "The establishment 
 of this doctrine and practice," adds he, "is 
 to be traced back to the decisions of Lord 
 Hardwicke, Lord Camden and Lord Thur- 
 low." The decree, therefore, of July, 1S40, 
 was for the benefit of all the creditors, and 
 in the nature of a judgment for all. Every 
 creditor who came in and proved his debt un- 
 der the Master's notice, became a party to 
 the decree, an actor in the proceedings, and 
 was entitled to move for any order to speed 
 the cause, or carry the decree into successful 
 execution. It has been definitively settled 
 that the defendant presented and proved his 
 demand under the decree, and became there- 
 by just as much an actor in the cause as 
 the original complainant, or as any other 
 creditor situated similarly with himself. If 
 the estate was insolvent, and had been sur- 
 rendered to the control and disposition of the 
 Court, it might well be expected that thence- 
 forth the creditors would be most diligent 
 in stimulating the action of the Court.. If 
 proceedings under the decree were unrea- 
 sonably protracted or suspended, the delay 
 is not more chargeable upon one than an- 
 other of those who were entitled to ex]^edite 
 them, not more to any other creditor than to 
 
 *270 
 the *defendant: and it is not unlikely that 
 the irregular proceedings of the defendant, 
 in the levy and sale of July, 1842, may have 
 created obstacles in canning into effect the 
 decretal order of sale made by the Court, 
 which did not previously exist. 
 
 This Court perceives no error in the decree 
 of the Chancellor, and the appeal is dis- 
 missed. 
 
 JOHNSTON, DARGAN, and WARDLAW, 
 CO., concurred. 
 Appeal dismissed. 
 
 5 Rich. Eq. 270 
 
 W. SIMONS and Wife et al. v. THE SOUTH 
 
 WESTERN RAILROAD BANK and 
 
 EDWARD R. LAURENS. 
 
 (Charleston. Jan. Term, 1853.) 
 
 ITrH.sf.s <g=>357.1 
 
 Where a Master in Equity borrowed money, 
 and, to .st^cure the payment, hypothecated cer- 
 tain certificates of stock which he held as Mas- 
 ter, and in trust — the official character in which 
 he held the stoek, and the trust, appearing upon 
 the face of the certificates — the lender was de- 
 creed to deliver up the certificates to the par- 
 ties entitled, and account for all dividends he 
 may have received. 
 
 [Ed. Note. — Cited in Mathews v. Hevward, 2 
 S. C. 244 : Webb v. Graniteville Mfg. Co., 11 
 S. C. 401, 32 Am. Rep. 479; Salinas v. Pears- 
 all, 24 S. C. 184: Rabb v. Flenuiken. 29 S. 
 C. 285, 7 S. E. 597. 
 
 For other cases, see Trusts, Cent. Dig. § 
 546; Dec. Dig. <S=>357.] 
 
 Before Dargan, Ch., at Charleston, June, 
 1852. 
 
 Dargan, Ch. In the case of Jonathan Lu- 
 cas and others, against William Hume and 
 others, by a decretal order of the Court, 
 (March, 1840,) Catharine Simons, then Cath- 
 arine Hume, as one of the heirs at law of 
 Mrs. Lydia Lucas, was declared to be entitled 
 to a portion of the proceeds of the sale of 
 a plantation called Middleburgh: which 
 place was then ordered to be sold by the 
 Master, on certain terms therein prescribed. 
 The same decree directed a distribution of 
 the proceeds of the sale into thirteen parts, 
 corresponding with the number of the heirs 
 at law who were to receive the same ; and 
 also directed their shares to be paid to them 
 
 *271 
 respectively. In regard to the share "^of 
 Catharine Hume, (who was then an infant,) 
 as well as the shares of the other infant par- 
 ties, the same decree ordered them to be paid 
 to the guardians of the said infant parties, 
 "if they have such guardians, and if not, to 
 be invested by the Master for their benefit 
 respectively, until demanded by the proper 
 authority." 
 
 In pursuance of this decree, Middleburgh, 
 on the 6.th April, 1840, was sold by Edward 
 R. Laurens, then one of the Masters in Equi- 
 ty, to Jonathan Lucas, for .$29,600. The sale 
 was duly reported and confirmed. The share 
 of Catharine Hume in the cash proceeds of 
 the sale was $794.10, which, by the directions 
 of the decree, was invested by the said Mas- 
 ter in 5 per cent, stock of the City of Charles- 
 t<«i. The certificate was No. 124, and was in 
 the name of "Edward R. Laurens. Master in 
 Equity, in trust for Catliarine Hume, a minor 
 child of Catharine Hume, formerly Lticas, de- 
 ceased, or his assigns, for $794.10 of the issue 
 of 1835." • 
 
 The share of Catharine Hume in the credit 
 portion of the sales, afterwards received by 
 the said Edward R. Laurens, was $4,837.06. 
 Tliis was invested by him in a certificate of 
 
 108 
 
 ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests aud Indexes
 
 SIMONS V. SOUTHWESTERN' RAILROAD BANK 
 
 *274 
 
 State n per (cut. stock, fur .ST. 44 1.."."!, lit'ariii;; 
 date the 10th July, 1S47, in the name of "Ed- 
 ward li. Laurens. Master in Etjuity, in trust 
 for Lucas and Hume, or hi." assi;.'ns." 
 
 On the 2stii tKt.. 1850, Edward R. Laurens, 
 being pressed for money, ne;;otiated a loan 
 from tlie South Western Rail RoatI Rank for 
 $5.00(). which he secured by his individual 
 note, and a liy|)othe(ation of the two eertiti- 
 cates above described, and another certifi- 
 cate of State three per cents., which stood in 
 his name as trustee for Susan Ran<lall. 
 
 The said certificates were deposited with 
 the Rank, and endorsed in blank by the .said 
 Edward R, Laurens. The note of Edward R. 
 Laurens to the Raidv was renewed several 
 times, and the last renewal remains uniiaid, 
 in po.ssession of the Rank. On tlie l!»th April, 
 1S51, the Raidv. wishin;^ to sell the stock, 
 filled up the blank assit;nnients (endorssed up- 
 on the certiticales) in favor of the said Rank; 
 
 *272 
 
 and, to be better able to make a sale *there- 
 of, otTered the certificates at the State and 
 City Treasury, to be transferred in the name 
 of the South Western Rail Road Rank. Be- 
 fore the transfers were made, the State 
 Treasurer and City Treasurer received notice 
 from the complainants, and from the sui'eties 
 of Edward R. Laurens' oflicial bond: iu con- 
 sequence of which the transfers have not 
 been made. 
 
 Catharine Hume has intermarried with 
 William Simons, and C. G. Memminger and 
 Keating L. Simons are the trustees of their 
 marriage settlement, by why.'li the fimd in 
 question has been assigned to the .--aid trus- 
 tees, in trust for the uses of the marriage set- 
 tlement. And the said Rank having refused 
 to deliver up the said certificates of stock, 
 the said Simons and wife, and the said trus- 
 tees, have filed this bill for an account 
 against the said I'.ank, and against the said 
 Edward R. Laurens, and that they n)ay be 
 decreefl to deliver up the said certificates. &c. 
 Catharine .'Simons has died since the filing ol 
 the hill ; but both the legal and equitable in- 
 terest in this fniid remain in p;nfii>> before 
 the Court. 
 
 Every priiu iiiie of eipiify applicable to the 
 subject demands that the South Western Rjiil 
 Road iiank should be dt creed to make resti- 
 tution. One who purchases from a trustee, 
 witli notice of the trust, bc'omes liim.self 
 chargeable with the equities of the trust, to 
 the extent of his dealing, if the truste<.''s act 
 is a violation, or an abuse of the trust. In 
 this case, the Rank nad notice, for the trust 
 was unmistakably stamped upon the face of 
 the certificate's; and if they had followed up 
 the indications thereby afforded, it would 
 have led to the most conqilete information on 
 the subject, and sliown them the utter inca- 
 pacity of Laun-ns to .sell, much less to hy- 
 pothecate for his own use the certificates of 
 stock, which stood in his name for the benefit 
 
 of the wards of the Court. The morality 
 of the tran.saction, on the part of the Rank, I 
 do not impugn; but certainly there was 
 great blindness. They were deceived, but. 
 they must take the consequences. If Laurens 
 were to l»e considered a mere trustee, I should 
 consider the plaint ifls entitled to relief. 
 Rut it is a mistake to sui)pose tlmt a Mas- 
 
 ♦273 
 
 ter in Equity is a "trustee in the technical 
 sense. In regard to the assets In his hands. 
 He is a mere depositary. He has no right 
 or authority to make Investments, or to call 
 in, or chang»' tho.se that have been made, 
 without the special order of the Court. With- 
 out such authority, he has no right to nego- 
 tiate, or transfer any of the secuiities that 
 are in his jKKs.session or under his control. 
 Wlu're bonds or other securities are payable 
 to hiiu, he may receive the money when due; 
 and, as money is not easily identified, his 
 mi.sappropriation of it ndght be without rem- 
 edy as to the money itself. Yet even as to the 
 cash funds in bis hands, if ndsappropriated, 
 they would be followed in the hands of one. 
 1 who, in taking them, was aware of the abuse 
 j of the official trust. 
 
 It would be a great perversion of every 
 principle of e(puty. if the plaintifTs' claims 
 ' were not sustained. 
 
 I It is ordered and decreed, that the defend- 
 j ant, Edward R. Laurens, do account for and 
 [ pay over to the plaintift's. who are the trus- 
 I tees of th& marriage settlement of William 
 ' Simons and Catharine Ins wife, all the mon- 
 i eys which have come into his hands, as late 
 ' Master in Equity, which may be due to the 
 said Catharine Simons, from the estate of 
 Lydia Lucas, and that Master Tupper .state 
 I the accounts. 
 
 [ It is further ordered and d»^creed, that 
 I the South Western Rail Road Rank do deliver 
 I up to the said trustees, the said ••ertificate of 
 City 5 per cent, stoc-k, and the .said certificate 
 j of State .'{ per cent, stock, mentioned and 
 described in the plaintifTs' bill; and that they 
 ac<'Oinit f<u' the dividends they may have re- 
 ceived thereon, (if they have received any;) 
 and that all transfers and assignments of the 
 said certificates be .set aside and cancelled. 
 
 It is further ordered and decreed, that 
 j the defendants pay the costs. 
 1 The South Western Rail Road Rank ap- 
 ' pealed, anil insisted, that these defendants 
 I took the securities mentioned in the pleadings 
 I in the course of business, as security for a 
 
 *274 
 loan. That *being purcluisers for a valuable 
 consideration, ni) decree ought to have been 
 made against them. 
 
 That the defendants are entitled to the as- 
 sistance of this Court, to recover from the 
 sureties of Edward R. Laurens the amount 
 advamed by them on the said securities, if 
 the securities themselves are adjudged to the 
 complainants.
 
 *274 
 
 5 RICHARDSON'S EQUITY RErORTS 
 
 Hanckel, Petigru, for appellants. 
 Memminger, contra. 
 
 PER CURIAM. We concur in the decree 
 of the Chancellor: and it is ordered that the 
 same be affirmed, and the appeal dismissed. 
 
 JOHNSTON, DUNKIN DARGAN and 
 WARDLAW, CC, concurring. 
 Appeal dismissed. 
 
 J Rich. Eq. 274 
 
 W. M. RIVERS, Adrn'r, v. GREGG, HAYDEN 
 * & CO. and Others. 
 
 (Charleston. Jan. Term, 1853.) 
 
 [Infants (g=>50.] 
 
 An infant who has an allowance, from the 
 Court or any other source* of a sum sufficient 
 to provide himself with necessaries suitable to 
 his fortune and condition, is not liable, ordina- 
 rily, for necessaries supplied on credit. 
 
 [bid. Note. — Vor other cases, see Infants, 
 Cent. Dig. § 114; Dec. Dig. <©=>50.] 
 
 [Infants <©=5.50.] 
 
 If the creditor shows that the amount al- 
 lowed him had been wasted, or in any way had 
 been lost to the infant, and that he was in 
 actual need of the necessaries supplied, he 
 would be liable — semble. 
 
 I Ed. Note. — For other cases, see Infants, 
 Cent. Dig. SS 114, Ho. 117-127; Dec. Dig. 
 <g=:350.] 
 
 [Insurance <®=^591.] 
 
 Creditors of infant taking a policy of in- 
 surance on the life of infant, and with his con- 
 sent — they paying the premium and other ex- 
 penses — are entitled, on the death of the infant, 
 to the proceeds of the policy, to the extent of 
 their debt; whether the policy be taken in their 
 names, or in that of the infant. 
 
 [Ed. Note. — For other cases, see Insurance, 
 Cent. Dig. § 1480 ; Dec. Dig. <®=:5591.] 
 
 Before Dargan, Ch., at Charleston. June, 
 1852. 
 
 Dargan, Ch. William M. Eddiugs was a 
 young man of large expectancies. He pos- 
 sessed an absolute and indefeasible estate, 
 the value of which has been estimated by the 
 
 *275 
 Master at *thirty-five or forty thousand dol- 
 lars. Thi.s includes the accumulated income 
 of the defeasible estate to which he was con- 
 ditionally entitled, under the will of his 
 grandfather, William Puddings; which said in- 
 come, by a decree of this Court, has been ad- 
 judged, since the death of William M. Ed- 
 dings, to belong to his estate.(a) In addition 
 to this, he would have been entitled, if he had 
 attained the age of 21 years, to an interest in 
 his grandfather's estate, estimated by the 
 Master at seventy-five or eighty thousand dol- 
 lars. His absolute and expectant estate 
 would, therefore, together, have amounted 
 to $110,000 or $120,000. His vested estate, 
 exclusive of what his estate will receive from 
 the decree of the Court on account of the in- 
 
 (o) Rivers v. Fripp, 4 Rich. Eq. 270. 
 
 come of his conditional legacy, was only 
 about $10,000. He was born on the 22d No- 
 vember, 1830, and died on the 29th November, 
 1850. On his death, under 21 years, the 
 whole of his conditional estate passed, under 
 the limitations of his grandfather's will, to 
 his only surviving brother, without Its ever 
 having vested, except as to the income, in 
 William M. Eddings. 
 
 In March, 1840, his mother, Mrs. ]Mary 
 Eddings. (now Mrs. Hughes,) was appointed 
 liy the Court of Equity the guardian of his 
 person and estate. From 1840 to 1846, his 
 guardian received from the executor, John 
 A. Fripp, the sum of five hundred dollars 
 per annum for his education and support. 
 Her accounts had been regularly returned 
 and vouched. In 1846, by an order of this 
 Court, his allowance was increased to $1,000. 
 This allowance continued until 1848. when 
 William M. Eddings was married. On that 
 event, his allowance, by an order of the 
 Court, was increased to $2,500 dollars, which 
 was ordered to be paid to him, and not to 
 his guardian. His wife was also possessed 
 of an estate, which, on her marriage, was set- 
 tled on her, for her separate use, the income 
 of which was between six and seven hun- 
 dred dollars. This income went to the sup- 
 port of the family. The allowance ordered 
 
 *276 
 to be i)aid to William *M. Eddings, which 
 was intended for the support of himself and 
 family, added to the income from his wdfe's 
 estate, made an aggregate of $3,100 or $3,200 
 per annum. He had two children, one of 
 whom died before him. He left a widow 
 and one child, who survived him three 
 months. The widow still survives. 
 
 On the 23d August, 1851, an order was 
 made, referring this case to the Master, with 
 leave to report any special matter. The 
 Master was also ordered to publish a notice 
 in one of the city papers, requiring all the 
 creditors of the estate to present and prove 
 their demands before the said Master, on or 
 before the first September next ensuing. The 
 accounts of the administrator of Williaui 
 M. Eddings were also referred to the Master, 
 and the said administrator was ordered to 
 pay to the Master anj funds belonging to the 
 estate that had, or might thereafter, come 
 into Ills hands. 
 
 The Master now submits his report upon 
 the matters referred. He states that the 
 administrator has rendered his account, and 
 that the same has been legally vouched. He 
 finds a balance due the estate by the ad- 
 ministrator, of $4,104.37. No exception hav- 
 ing been taken to this part of the report, 
 it is ordered that the said report, in this 
 respect, be confirmed, and become the decree 
 of this Court. 
 
 In the same report, the Master also sub- 
 mits a statement of the claims of the credi- 
 tors presented before him, and of the evi- 
 
 110 
 
 @=»For other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Inde.xes
 
 IIINKIIS v. (JKKGU, 11AVI>1:X &. CO. 
 
 ^2Tlt 
 
 dence by which they were suiiported. The 
 Master, in his report, has diseriiiiiiiated be- 
 tween what he considers necessaries, suit- 
 able to the fortune and condition of tlie in- 
 testate, and mere waste and e.\travaKan<*e: 
 rejectliifr tlie latter and allowing; the former. 
 The creditors, whose claims liave l>een re- 
 jected, have severally filed exceptions to the 
 report, contendiiif,' that the reji-ctinl items of 
 their accounts, ou;;ht to have been allowed 
 as necessaries. I think the Master has al- 
 lowed enouf:;h as necessaries, in any point 
 of view in whidi the <'ase may be considered. 
 And for this reason, all tiie exceptions tiled 
 by the creditors are overruled. 
 
 *277 
 
 *But the complainant (the administrator 
 with the will annexed of William M. Ed- 
 dings) has also fded exceptions to the report, 
 in which he disimtes the rii^ht of the credi- 
 tors (under the circumstances) to <-laini any 
 thing as necessaries. And this brings up a 
 very important (piestion — a cpiestion which 
 must be of deep concern to parents and 
 guardians, and to that interesting class of 
 the eonniiunity, who, on account of their ten- 
 der years and niH>d of protection, the Court 
 of Equity has under its own pe<uliar guard- 
 ianship and care. 
 
 To show the great importance and neces- 
 sity of this i)rotection, I need not travel out 
 <»f the facts of this case to present a strik- 
 ing illustration. Under the pulilished order 
 to prove their debts before tlie .Master, cred- 
 itors have presented demands against the 
 intestate's estate to the enormous amount 
 of $14,20.1, all. or a very large part of which, 
 was contracted within the last four years 
 of his life, and princiiially witnin the last 
 two years. Add to this, aliout .$!).()(»() for 
 money actually received by the intestate, on 
 account of his allowance, and on ac<ount 
 of the income of his wife's estate, all of 
 which came into his hands, and was con- 
 sumed, and the aggregate is aboiit .$L';{,000. 
 Thus we lind this infant, who.se person and 
 estate were under the protection and guard- 
 ianship of the Court of Equity, whose estate 
 in i)ossession was oidy .$l().(Mt(>. and whose in- 
 defeasible estate, eventually realiz«'d. was 
 only $.".r).00<». living, for the last four years 
 of his life, at the extravagant and wa.steful 
 rate of nearly six thousand dollars per an- 
 num. And this yet does not present a per- 
 fect view of his extravagance: for. as has 
 already been observed, the principal part of 
 tlie debts was accunndated within the last 
 two years of his life, when his allowance was 
 at its maximum, and when lie also enjoyed 
 the iiKom*' of his wife's estate. He must 
 have exjiended. after his marriage, seven or 
 eight thousand dollars per aninim. I was 
 desirous to have gone accurately into this 
 calculation; but the .Master's report, and the 
 docunu'iits and evidence submitted with it, 
 did not afford the data. 
 
 When the Cliancellor, by his order, graut- 
 
 I •278 
 
 ' tnl this infant, out of *hls estate, an allow- 
 1 ance of $l.tHK) iier annum, and after his 
 I marriage increa.sed it to $l.',.'j(M) per ainium, 
 J di<l he base his decree uiion what, from the 
 evidence before liim, lie sui»ptt.sed was neces- 
 sary for the support and maintenance of 
 himself and family, according to his fortun-^ 
 and position? If not. how futile was the 
 I)relindnary imjuiry as to what were his 
 prospects and fortune? Did he grant liim 
 the annual .$2.r>(X) for and in lieu of neces- 
 saries; or di<l he mean that he should re- 
 ceive his allowance, and be arnuMi with au- 
 tli(u-ity to contract debts, and charge his 
 estat«' with the payment of double that sum 
 in the way of necessaries? If this latter 
 principle is to prevail, then I undertake to 
 .say that the protection which this Court 
 affords to the estates of infants is a bitter 
 mockery. 
 
 The general rule certainly is, tliat an in- 
 fant is bound Iiy his contract for neces- 
 saries. I?ut tln-re are exceptions equally 
 clear aiul well settled. Necessaries, when 
 the term is ai)plie(l to an infant, are those 
 things that are conducive and fairly pn»per 
 for his comfortable support and education, 
 according to his fortune and rank. So that 
 what would be considered ne«-es.sary in one 
 case would not be so regarded in another. 
 The rule is entirely relative in its oper.-ition. 
 Hut what are neces.saries? .Meat, lodging, 
 clothing !Uid education, if the means admit 
 of it, certainly fall within the detinition. 
 To which may be added, in case of marriage, 
 the support of wife, chililren and .servants. 
 All is relative, and is regulated by circum- 
 stances. I?ut if an infant is furnished with 
 tlu'se tilings by his parent or guardian, then 
 the same articles, to the same or a less 
 amount, supplied by another under contract, 
 are not necessary to him. To another, not so 
 supidied. they would be necessary. Tlie 
 same remarks apply, with equal propriety 
 and force, where the infant is supplied b.v 
 parent or guardian, or by this Court, with 
 money to furnish himself with neces.saries. 
 In some cases, circumstances make it proji- 
 er, and imperatively demand, that the in- 
 fants should liav»> tiie disbursement of his 
 allowance himself. In the case of marriage 
 and house-keeping, the perpetually recurring 
 wants and exigencies of the family render it 
 
 •279 
 impossi*ble that the guardian should always 
 be called on to supervise the disburst'inent 
 of the fund allowed to the infant. <>r if, 
 being a youth of fortuiu', he is .sent upon 
 his travels in foreign lands, or even in Ids 
 own country, the guardian cannot look to 
 the ex|teiiditure t)f the money. It is neces- 
 sarily entrusted to his own keeping. The 
 brother of the (h'ceased is now abroad, on 
 his Euroiiean travels. Previous to his de- 
 parture, an application was made to this 
 Court lor a proiier allowance to defray his 
 
 111
 
 *279 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 traveling expenses. The Court, upon due 
 consideration, made an order for what was 
 supposed to be a proper allowance, refer- 
 ence being had to the amount of his for- 
 tune. Suppose this young gentleman should 
 expend his allowance, and, in addition, 
 should contract debts to the same amount, 
 for articles that, prima facie, would be re- 
 garded as necessaries ! Could these claims 
 be supported, on its being shown that the 
 infant had an allowance that was amply 
 sufficient to defray all his necessary and 
 proper expenses? I suppose not. 
 
 He who deals with an infant is presumed 
 to know of his infancy. He is bound, at his 
 own peril, to make the inquiry. It makes 
 no difference whether the inquiries result in 
 correct information, or the reverse. It is no 
 excuse, if he honestly supposed, from his 
 appearance or other circumstances, that the 
 infant was an adult. Tlie protection of this 
 defenceless class of persons would be very 
 Inadequate, if this principle is not further 
 extended. The only safe rule, for the securi- 
 ty of infants and their estates, is, that he 
 who credits the infant for necessaries, should 
 be bound to know whether the infant has 
 been supplied with a sufficient amount of 
 those articles by the parent or guardian, or 
 from some other source. The consequence, if 
 any other rule than this pi'evails, would be, 
 that an infant's estate might be made liable 
 for double the amount of necessaries that 
 were necessary for him. 
 
 I will not say that an infant, after being 
 supplied with necessaries, or a proper allow- 
 ance in cash to procure them, may not, un- 
 der some circumstances, be liable on a con- 
 tract for necessaries. Suppose, for example, 
 
 *280 
 after being furnished with all things *neces- 
 sary for him, he should give them away, or 
 sell them, or waste the proceeds in riot and 
 debauchery. Or suppose, that after having 
 placed in his hands, in money, an allowance 
 sufficient for all his wants, he should be 
 robbed of it, or should lose it by accident, 
 or at games of chance. Then the infant 
 would be reduced to want for the means of 
 bare subsistence. Must he starve with a 
 plenty in his coffers? Would he not be bound 
 by a contract for necessaries under these 
 circumstances? This is stating the strongest 
 imaginable case against the rule. But its 
 wisdom is still manifest. In a case like that 
 supposed, I would say that the infant would 
 be bound. But I would further say, that the 
 party who alleged this extraordinary state of 
 facts must prove them. In other words, when 
 it is shown that an infant is supplied with 
 necessaries by his parent or guardian, or 
 with funds amply sufficient to procure them, 
 the presumption of law and of reason must 
 be, that he does not stand in need of credit, 
 to obtain what is necessary for him. And 
 after this prima fade showing, he who alleg- 
 es that, notwithstanding this, the infant was 
 
 112 
 
 in a state of destitution, must take upon him- 
 self the burthen of proving the allegation. 
 If he does this in a satisfactoi-y manner, hi.^ 
 claim should be allowed. But even then, it 
 should be limited to bare necessaries, and 
 should not be allowed to embrace articles 
 of luxury, which would otherwise be suita- 
 ble to the infant's fortune and condition in 
 life. 
 
 To illustrate these views further, I will 
 advert to what I suppose would be the course 
 which a ca.se like this might take in a Court 
 of Law. The plaintiff brings his action of 
 as.sumpsit for goods, wares, &c. The affirma- 
 tive is with him. He must i>rove his demand 
 to be entitled to recover. The defendant, 
 however, has pleaded infancy. This admits 
 the account, and rests the defence upon the 
 affirmation of a fact, which the defendant is 
 l:ound to prove. If to this plea the plaintiff 
 has replied, that the demand was for neces- 
 saries suitable to the defendant's f(jrtune 
 and condition in life, the burthen of proof 
 is again shifted. The plaintiff must prove 
 his replication. This he does by showing, 
 
 *281 
 for example, that the accoimt is for *board, 
 clothing, education, &c. On this proof he 
 would be entitled to recover. But if the de- 
 fendant has rejoined, that the articles fur- 
 nished were not necessary to him, because 
 he was furnished with the same articles by 
 his parent or guardian, here the proof of all 
 the facts stated in the previous pleadings 
 would become unnecessary. The defendant 
 would be bound to prove his rejoinder. But 
 if the plaintiff has filed a sur-rejoinder, al- 
 leging, that although the infant defendant 
 was furnished with support and maintenance, 
 or the means of procuring it, by his parent 
 or guardian, yet, that by the defendant's 
 improvidence or misfortune, he had wasted 
 or lost his means, so that he was reduced to 
 a state of destitution, and the articles fur- 
 ni.shed by the plaintiff were thus become 
 necessary for the infant, here, the affirmative 
 is again shifted, and the onus is with the 
 plaintiff. In this Court, happily, special 
 pleading never prevailed. But what is valua- 
 ble and subservient to the ends of justice, 
 in the philosophy of that system, is applied 
 here in practice in a short hand way ; though 
 this Court never suft'ers itself to be baffled 
 by its subtleties or entangled in its techni- 
 calities. 
 
 In a case like that before me, it is not suf- 
 ficient for the ci-editor of an infant, for the 
 purpose of obviating the objection that the 
 infant was furnished with necessaries, or the 
 means of procuring them, by his parent or 
 guardian, or from other source, to argue hy- 
 pothetically, that the infant, notwith.stand- 
 ing, might have been in a state of destitution, 
 which rendered the articles furnished by the 
 plaintiff" neces.sary for him. In a Court of 
 Equity, as in a Court of Law, he must state 
 the fact affirmatively, and prove it positively.
 
 RIVERS V. GREGG, HAYDEN & CO. 
 
 »284 
 
 Tho ronolusion is, that an infant wlio is 
 furnishod with neocssarifs, or the means in 
 {•ash of procuring them. Ity his parent or 
 guardian, or from any otlier soijrce. Is, prima 
 facie, not liable for necessaries supi»lie«l by 
 a stranger or tradesman on a credit; and 
 that the party whci seeks to evade the opera- 
 tion of the rule, and bring his claim under an 
 exception, must prove the destitution and 
 necessities of the infant. And I persuade 
 
 ♦282 
 myself *that the mo.st specious objection to 
 the rule has been sufliciently answered. 
 
 I was pressed in the argument at the liar 
 with a recent Engli.sh decision, which, I ad- 
 mit, is directly to the point, and opposed to 
 my own conclusion in this ca.se. Rut for this 
 decision, I should not have deemed it neces- 
 sary, or incumbent upon me, to elaborate my 
 views ui>on the subject at such great length. 
 The decision cited, though not binding upon 
 me, is entitled to great respect. The case 
 is that of Burghart v. Hall. 4 M. and W. 71^7. 
 In this case, the infant had an allowance of 
 £500 per annum, besides his pay as Captain 
 in the (Juards. Lord Lyndhurst had directed 
 an issue to be tried by a jury. Lord Abinger, 
 in «-harging the jury, had laid it down, that 
 a tradesman would not l)e at liberty to fur- 
 nish necessaries to an infant, when he might 
 have known, if he had made the proper in- 
 (luiries, that the infant was supplied with an 
 income for his own support. Sir L. Shadwell 
 had expressed the .same opinion, in a case 
 against the same party. Mortara v. Hall, 6 
 Sim. 465. In Rurghart v. Hall, the Court of 
 Exche(iuer granted a new trial, on the ground 
 of misdirection of the presiding .Judge, with 
 the full concurrence of Lord Abinger, who 
 retracted his former opinion, and alleged that 
 he had l)een convinced by the argument of 
 Mr. Earle, the counsel for the plaintiff. Lord 
 Abinger. who delivered the judgment of the 
 Court, stated the law to be. that an infant 
 is capalile, not only of entering into a con- 
 tract for necessaries, for ready money, but al- 
 so into any reasonable contract for necessa- 
 ries on a credit, though he has an income of 
 his own, and an allowance that was amply 
 sutlicient for his support. I must l>e permit- 
 ted to say. that the argmnent of Mr. Karle, 
 though ingenious, has failed to convince me; 
 and I prefer the tirst, and. in my opinion, the 
 better judgment of his I>ordship. 
 
 Lord Lyndhurst, deeming the decision In 
 this case authoritative upon him, implicitly 
 followed it, without any further argument or 
 precedent, and gave a decree accordingly. 
 ♦283 
 
 ♦I find no case that goes this length. In 
 McPherson on Infancy, 507, it is laid down 
 that, "where the plaintiff has succeeded In 
 showing that the supplies, in resi»ect of 
 which the action is lirought, were siutable in 
 themselves to tlie age and station of the de- 
 fendant ; the latter may show that he was 
 supplied, no matter from what quarter, with 
 
 5 Rich. Eq.— 8 
 
 necessaries suitable to his situation; and 
 in such a case, a tradesman cannot ri'Oover 
 for any further supply." See Rainliridge v. 
 Pickering. 12 W. Rl. i.^liS. And it has fre- 
 ijuently been held, tluit a person furnishing 
 necessaries to an infant, under tliese and the 
 like circumstances, is bound to make innuiry 
 wiiether the infant l»e not otherwise suiiplied. 
 Co<.k V. Deatnn, .3 Car. & I'. 114: Story v. 
 Terry. 4 lb. .'jL'ti; Ford v. Eothergil. 1 Esp. L'l. 
 
 In the case last cited. It was held by Lord 
 Ki'iiyon to be incumbent on a tradesman, be- 
 fore he gives criKlit to an infant for what 
 nuiy prima facie be considered as necessaries, 
 to make incpiiry whether he Is not provided 
 ity his friends. •\nd In Story v. IVrry, It 
 was decided by I.rord Tenterden, that a 
 tradesman trusts an infant for nit-essarles 
 at his own peril, and that lie caimot recover, 
 if it turns out that the infant has been oth- 
 erwise supplied. 
 
 In a more recent case, Rurghart v. Auger- 
 stein, G Car. & P. ti'JO. it was ruled, that, 
 where an action was lirought against an in- 
 fant for necessaries, it was competent for 
 him to prove that he had been supplied with 
 the sjime articles (clothes) from other trades- 
 men besides the plaintiff; and if the proof 
 be that the defendant had been previously 
 so sup|)lied, the plaintiff could not recover, 
 although the defendant had not paid the i>ri- 
 or bills. 
 
 To the .same effect are the cases upon this 
 subject, uecliled by the Courts of South-Caro- 
 lina. In Connolly ads. Hull. :> M<-C. (15 
 Am. Dec. G12], it was held, upon what was 
 considered "a well settled principle, that an 
 infant who lives with and is properly main- 
 tained by her parents, caimot bind herself 
 to a stranger for neces.><aries.' And the 
 Court proceeds to observe, "whether the 
 mother, in this instance, was able, and did 
 maintain her daughters in a manner suitable 
 
 ♦284 
 to their condition, did not appear; but ♦it 
 ought to be presumed, until the contrary be 
 proved." In Edwards v. Higgins, 2 McC. Eq. 
 21. it was ruled, that an infant is not bound 
 for necessaries, where he has a "natural or 
 legal guardian to provide them." 
 
 It is a fallacy to suppose that a distinc- 
 tion can be drawn between the case where an 
 infant is actually suppliiMl with the neces- 
 saries themselves, and that where he receives 
 an allowance under an order of the Court, 
 which he is to disburse hini.'^elf, in their pur- 
 chase. If it be urged that the Infant may 
 waste or ndsapply his allowance, and thus 
 be reduced to a state of destitution, that 
 would require his ueces.sary wants to be oth- 
 erwise supplied, it is obvioiis that the argu- 
 nu'ut applies with etpial force to the case 
 where the infant Is supitlied with the neces- 
 sary articles for his use and c»)nsumption. 
 These he may sell, give away or waste, so 
 that it may become necessary that he should 
 have more, to save him from nakedness and 
 
 113
 
 284 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 starvation. The party who alleges such state 
 of destitution, as a justification for giving 
 credit to an infant who is otherwise amply 
 provided for, must take upon himself the 
 burthen of proving it. And if he succeeds 
 in this, he will have such relief as is proper 
 under the circumstances. But until such a 
 state of destitution is made to appear, it 
 must be presumed that an infant who has 
 an ample allowance in cash, does not need 
 to be supplied with necessaries on credit. 
 
 To test this question still further: If the 
 guardian had paid these accounts, would 
 she liave been allowed to charge them against 
 her ward's estate? It is a waste of time to 
 ask the question. 
 
 No guardian has the right, without the per- 
 mission of the Court, or without special cir- 
 cumstances of necessity, to transcend the in- 
 come of his ward's estate, in expeuditux'es 
 for his benefit. And the Court, in decreeing 
 allowance, always has reference to the same 
 general rule, from which it never departs, 
 unless under special circumstances. And yet, 
 it is contended that this rule may be violated 
 by tradesmen, for their own profit and specu- 
 lation. The truth is, that these claimants 
 
 *285 
 did trust *this unhappy youth at their own 
 risk. They knew that they would be paid 
 if he lived, and came to his inheritance. 
 They, for a consideration, doubtless, resolv- 
 ed to take the hazard. That this is the case, 
 is shown by the fact that two of them, 
 whose claims are the largest, insured the in- 
 fant's life in an amount sufficient, in one 
 case, to save them from loss, and in the oth- 
 er to pay half the debt. 
 
 I think that the claims of these creditors 
 .should nut be allowed, for the foregoing rea- 
 sons. And I further think, that they are en- 
 titled to no commiseration. There are some 
 unhappy circumstances connected with the 
 case. There is but little doubt that the ill- 
 fated youth was brought to an untimely 
 grave, by the improper and unbounded cred- 
 it which was extended to him by these per- 
 sons, and others, for their own profit. E. 
 W. Mathews, Esq. bears the following mel- 
 ancholy testimony. He says, "that William 
 Eddings, the minor, was his nephew. He 
 and the mother and grandfather of Mr. 
 Eddings used every effort to keep him at 
 school during his minority ; but the large 
 credit he obtained placed him beyond the 
 control of his guardian and friends. His 
 mothijr even refused him money to return 
 from school, and he had to borrow the same 
 to do so. From his knowledge of the circum- 
 stances of the case, he firmly believes that 
 the system of credit extended to his nephew 
 was the cause of his ruin and early death ; 
 and that such is also the opinion of the moth- 
 er of Mr. Eddings. Mr. Inkling's mother used 
 all her endeavors to check this system of 
 'jredit. by refusing to pay a number of bills."' 
 
 These creditors now come here for paj- 
 
 ment. They extended every facility to the 
 inexperienced and infatuated victim of pleas- 
 ure. They afforded the stimulus to his brief, 
 giddy and fatal career. They turned a deaf 
 ear to the remonstrances of his friends. The 
 tears and entreaties of his mother were un- 
 availing. It would be a gross perversion of 
 justice to allow these claims. It is ordered 
 and decreed, that the exception of the plain- 
 tiff to the master's report be sustained, and 
 that the whole of the claims of creditors re- 
 ported uiwn by the Master be rejected. 
 *286 
 
 *There are other matters in this case 
 which I must now decide. The plaintiff's 
 testator, William M. Eddings, in his life- 
 time, contracted a debt with the defendants, 
 Gregg, Hayden & Co., who were jewellers, 
 to the amount of about $2,400, for goods and 
 wares in their line of business. For the pur- 
 pose, they say, "of giving greater security 
 to their claim against the said Wm. M. Edd- 
 ings," they, the said Gregg, Hayden & Co., 
 with the assent of William M. Eddings, ef- 
 fected an insurance on his life, with a Bos- 
 ton Insurance Company. The policy was for 
 the term of four years, and the sum of ?2,- 
 500. It bore date the 13th Oct., 1848. The 
 premium on the policy, amounting to $58, 
 was paid by Gregg, Hayden & Co. It was 
 negotiated in the name of William M. Edd- 
 ings, who, in pursuance of a previous agree- 
 ment, assigned the policy to Gregg, Hayden 
 & Co. The premium was charged in their 
 books against Eddings, but no part of it has 
 ever been paid by him, or his legal represen- 
 tative. Since the death of Eddings, Gregg, 
 Hayden & Co. have received from the Insur- 
 ance Company $2,500, with the consent of 
 the administrator, and under an agreement 
 with him, that the said sum of $2,500 shall 
 be held by them, subject to the order of this 
 Court in the premises. They claim only so 
 much of the nett proceeds of the said policy 
 as will be sufficient to satisfy their demands 
 against William M. Eddings, and offer to pay 
 over the balance to the administrator. If 
 they retain the nett proceeds of the policy 
 they have been overpaid. 
 
 The defendants, Edgerton & Richards, al- 
 so having demands against William M. Edd- 
 ings, to the amount of $4,531.71, effected an 
 insurance upon his life, for the same pur- 
 poses as in the case of Gregg, Hayden & Co., 
 in the New-York Life Insurance Company, 
 for the sum of $2,000. The policy was dated 
 the 15th March, 1847. It was taken in the 
 name of Edgerton & Richards, who paid out 
 of their own funds the premium and ex- 
 penses for four years. It was all done with 
 the knowledge and consent of William M. 
 Eddings. After his death, they received from 
 the life Insurance Company of New-York 
 the sum of $1,983.87, according to the terms 
 
 *287 
 and condition of the *policy. They paid, in 
 the way of premium, etc., during the four 
 years, the sum of $103. The nett proceeds
 
 REED V. VIDAIi 
 
 •289 
 
 of the policy wore $1,880.871^ — a sum uot 
 .sulticit'Ut to pay one-half of their claim. 
 
 The administrator claims the whole uett 
 jiroceeds of both these policies, as Ix^lon^iiit? 
 to the estate of William M. Eddings. I have 
 come to a different conclusion. I think that 
 these parties, havin;; nejiotiated these poli- 
 <ies at their own expense, and for their own 
 lienetit and security, are fairly entitled to 
 have the nett i)roc«c(ls ai)plied in the way 
 iiitendi'd, namely, as payments upon their 
 claims against Eddin>;s. They were obvi- 
 nusly intended as collateral .securities. A 
 third party, who is sui juris, ujay become 
 b(tund for the debt of an infant, thoufjh the 
 infant should be dischartjed. And I ap!»re- 
 hend it would make no difference whether 
 the third party were a coriioration or a nat- 
 ural person. If the creditor of an infant, 
 for a consideration paid by himself, obtains 
 ii guaranty of the infant's debt from a third 
 party. I see no reason why such third party 
 should not be bound, nor why the creditor 
 should not have the benefit of his bargain. 
 This I think is the true nature of the trans- 
 iiction. The infant certainly is not entitled 
 to the funds thence arising. This would be 
 to give him the whole of the creditor's goods, 
 nn the plea of infancy, and. as a premium on 
 the plea, the whole proceeds of the policies. 
 
 It is ordered and decreed, that the excep- 
 tion of Gregg, Ilayden & Co. to the Master's 
 report on this point be sustained; that the 
 claim of the said Gregg. Ilayden & Co. 
 against Wm. M. Eddings he paid out of the 
 nett proceeds of the policy received by them, 
 with interest on their claim till they received 
 payment from the said Life Insurance Com- 
 pany; and that they pay over the balance, 
 if any, to the administrator of William M. 
 Eddings, which they have offered to do in 
 their answer. 
 
 It is further ordered and decreed, that the 
 exception to the Master's report of Edgerton 
 iV Kichards. which relates to the proceeds of 
 the policy of Insurance received by them, be 
 sustained, and that the said Edgerton & 
 
 *288 
 Kichards be allowed to *n'tain the proceeds 
 (if tile said iMilicy, as a payment on their ac- 
 count against the said William M. Eddings. 
 
 it is further ordered and decreed, that tin; 
 .Master's report be conformed to this decree. 
 
 It is further ordered and decreed, that all 
 the parties in this cause jiay each his own 
 costs; except the administrator with the will 
 annexed of William M. Eddings, whose costs 
 shall he charged upon the estate. 
 
 Apjieals were taken by the pl.iintilT and 
 the defendants, on all the disputed (piestions 
 decided by the decree. 
 
 Cooper, for plaintiff. 
 
 Porter, for Gregg, Ilayden & Co. 
 
 B. J. Whaley. for Gravely and others. 
 
 Wm. Whaley, for McKenzie and others. 
 
 The opinion of the Court was delivered by 
 
 DAUGAN, Ch. The appellants have press- 
 ed their case upon the attention of the Court, 
 with an ardent, but a commendable and deco- 
 rous zeal. Much ability and research have 
 been di-splayed in the argument of the cause. 
 I have uot, however, been shaken in the con- 
 clusions which 1 fornu'd on the Circuit trial, 
 and which I have expressed in the Circuit 
 decree. In that decree, I have gone so fully 
 into the consideration of the cpiestions made 
 on this appeal, that it seems to me unneces- 
 sary to say more on the present occasion. I 
 will add but a few words. 
 
 In my sununary of the South-Carolina de- 
 cision.s, I omitted to mention tlie case of 
 .T(Ujes & Danfortli v. Colviu. 1 McM. 14. This 
 was a very similar case to that of Hull v. 
 Connolly. ;j McC. 6 [15 Am. Dec. 012], cited 
 in the decree. 
 
 It seems to me that the language of Lord 
 Kenyon, in Marshall v. Rutton, 8 T. R. 545, 
 is not at all inapplicable to a case like this. 
 That was an action of assumpsit for neces- 
 sary supplies, furnished to the defendant by 
 the plaintiff. The defendant was a married 
 woman, living apart from her husband, under 
 a niutiial agreement for separation. Hy this 
 
 *289 
 deed, a *(>omplete sejiarate maintenan<-e. suit- 
 able to her rank and condition, was secured 
 to the wife. The question was. whether she 
 was liable on her contracts. And his Lord- 
 .ship. holding that she was not. observes: 
 "A wife living apart from her husband, who 
 has property secured to lier separate use, 
 must apply that property to her support as 
 her occasions may call for it. And if those 
 who know her condition, without requiring 
 immediate payment, give her criHlit, they 
 have no greater reastin to complain of not 
 being able to sue her, than others, who have 
 nothing to contide in but the honor of those 
 whom they trust." 
 
 It is ordered and decreed, that the ajtpeals 
 be dismissed, and the Circuit decree be af- 
 firmed. 
 
 DUNKIN, and WAKDLAW, CC, con- 
 curred. 
 
 Decree affirmed. 
 
 5 Rich. Eq. 289 
 
 SAMUEL P. KEE1> v. JAMES VIDAL. 
 
 (Charleston. Jan. Term, ISoy.'i 
 
 [Specific I'erfoinianrr (£=>7!).l 
 
 Contract in writing, by which defendant 
 agrot'd to repair plaiiuiff's steiun saw mill, 
 buildings, fenc<'s, etc., and i)laintiff to sell to de- 
 fendant, as soon as the repairs were tinisiied, 
 one undivided moiety of the j)remises on wiiich 
 the mill was situated: idaintiff and defendant 
 tlien to form a partiiersliij), to work tlie mill for 
 one year, at tiie end of wliicli time, it" jilaintiff 
 chose to retire, fiefendant was to pay him for 
 the premises a fixed sum; but if plaintiff did 
 not choose to retire, tiie iiartnersiiip was to 
 continue for five years: — held, that this was not 
 
 >For other cases see same topic autl KEY-NUMBER iu ail Key-Numbered Digests and Indexes 
 
 115
 
 *2S9 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 a proper case for the exercise of the jurisdiction 
 of tlie Court, to enforce the specific performance 
 of contracts ; and phiintiff's bill for that pur- 
 pose dismissed. 
 
 I Ed. Note. — For other cases, see Specific Per- 
 formance, Cent. Dig. § 189; Dec. Dig. <g==79.] 
 
 Before Dargan, Ch., at Charleston, Juue, 
 1852. 
 
 The bill, in this case, was for the specific 
 performance of a contract. His Honor dis- 
 missed the bill, and the plaintiff appealed. 
 
 E. DeTreville, for appellant. 
 Campbell, contra. 
 
 *290 
 *The opinion of the Court was delivered bj' 
 
 DARGAN, Ch. This is a bill for the spe- 
 cific performance of a contract. The plain- 
 tiff was seized and possessed of a tract or lot 
 of land, in or near the town of Beaufort, on 
 which there was a steam saw mill, which 
 was in a dilapidated condition. He entered 
 into a written contract with the defendant, 
 for the repair of this mill. The terms of the 
 contract were, that the defendant should, at 
 his own expense, and within six months, "put 
 in two new boilers, repair the buildings, 
 fences, mill-pond and dam, and rail-way as 
 far as the street leading over the public 
 causeway, build a new brick chimney and 
 fire places to the said steam saw mill, and 
 put all parts of the machinery and buildings 
 of the said steam saw mill in perfect work- 
 ing order. In consideration of which," as 
 soon as the said repairs were completed, the 
 plaintiff agreed to sell, and convey to the 
 defendant in fee, an undivided moiety of the 
 premises on which the mill was situated. 
 And it was further agreed between the par- 
 ties, that they were to work the said mill at 
 their joint expense, and for their joint bene- 
 fit, under the partnership name of Reed &; 
 Vidal. This partnership was to continue for 
 the space of one year; at the expiration of 
 which time, if Reed was disposed to retire 
 from the partnership, he had the privilege of 
 doing so. In case he chose to retire, the de- 
 fendant was to pay him, for his Interest in 
 the premises, the sum of two thousand dol- 
 lars, in certain prescribed instalments. But 
 if Reed was not disposed to retire, the part- 
 nership Avas to continue for five years. This 
 agreement was executed on the 31st I\Iay, A. 
 D. 1847. 
 
 The plaintiff, after various attempts to 
 induce the defendant to commence his work 
 In the repairs of the mill, and after several 
 prolongations of the time, during which the 
 defendant was to complete the execution of 
 the work, filed his bill in this Court, for a 
 specific performance of the contract. 
 
 The case was heard at Juue Term, 1852. 
 The presiding Chancellor, (Dargan,) was of 
 the opinion that the bill could not be sus- 
 tained; that it was not a case in which this 
 Court could, with propriety, interpose its 
 
 *291 
 jurisdiction, for the purpose *of giving re- 
 lief in the manner sought by the bill; that 
 the enforcement of a decree for a specific 
 performance of a contract of this character 
 would be attended with great difiiculties and 
 embarrasssments, if it would not be entirely 
 impracticable ; and that it was a case pe- 
 culiarly proper for a Court of Law, and a 
 trial by jury. The plaintiff's bill was dis- 
 missed with costs. 
 
 This is an appeal from the Circuit decree, 
 on various grounds, the substance of which 
 is, that the Court should have retained the 
 bill, and given the plaintiff the relief for 
 which he asks. 
 
 This Court concurs in the Circuit decree. 
 The appeal is dismissed, and the Circuit de- 
 cree affirmed. 
 
 JOHNSTON, DUNKIN and WARDLAW, 
 
 UC, concurred. 
 Decree atfirmed. 
 
 5 Rich. Eq. 291 
 
 W. J. SMITH et al. v. GEORGE W. BROWN 
 et al. 
 
 (Charleston. Jan. Term, 1853.) 
 
 [Landlord and Tenant <g=5l57 ; Trusts <©=> 
 274.] 
 Tenant of trustee not allowed compensation, 
 from the corpus of the estate, for improvements 
 put upon the premises. 
 
 [Ed. Note. — For other cases, see Landlord and 
 Tenant, Cent. Dig. § 59.3; Dec. Dig. <S=5l57; 
 Trusts, Cent. Dig. § 390; Dec. Dig. <©==274.] 
 
 [Trusts (©=:>201.1 
 
 Trust property was sold, and bonds for the 
 purchase money given to the Master, and as- 
 signed to the trustee: the purchaser made pay- 
 ments to the cestui que trust for life, without 
 the consent of the trustee: the payments were 
 allowed to the extent, only, that the cestui que 
 trust would have been entitled to receive them 
 from the trustee, had they been made to him, 
 as they should have been. 
 
 [Ed. Note. — For other cases, see Trusts, Cent. 
 Dig. § 270; Dec. Dig. <S=»201.] 
 
 Before Dunkin, Ch., at Charleston, June, 
 1851. 
 
 Dunkin, Ch. This cause was heard on the 
 report of the Master. In order to under- 
 stand the exceptions, a brief statement will 
 be necessary, which can be enlarged or cor- 
 rected by reference to the pleadings, and the 
 evidence which is reported. 
 
 The property called Gibbes' Wharf, in- 
 *292 
 eluding two slaves, *Tom and Pompey. at- 
 tached to the Wharf, formerly belonged to 
 two brothers, George Gibbes and James 
 Gibbes. In 1835, George Gibbes conveyed his 
 moiety to a trustee, for the benefit of the 
 children of his brother, Paul C. Gibbes. The 
 deed provides, that upon certain conditions, 
 (which were complied with,) "the trustee 
 should semi-annually pay over to Catharine 
 
 116 
 
 ®;:=3For other cases see same topic and KEY-NUMBER ia all Key-Numbered Digests and Indexes
 
 SMITH V. BRuW N 
 
 *294 
 
 Gil.bt's." (the wi.l.iw of I'mil ('. (;ilil)t's. and 
 tlu' iiiotln-r (if his chilflren.) "as h)n^' as she 
 shimld (((iitiiiiH' i> \vi(h)\v. and until all the 
 childrt'ii sliuuhl di»'. or th«' youn^'est attain 
 twenty-one years «(f ajje. the whole nett in- 
 come of the ino|.erty. to be ai>i)lied by her 
 to the support of herself and chihlren. as she 
 might deem expedient." On the (ith October, 
 1841. the <oiui)lainant, William J. Smith, be- 
 came th»' sulistituted trustee under this deed. 
 In January. 1X4.!, William .1. Smith, the 
 trustee, and .Tames (iil)l)es, (who owned the 
 other moiety of the wharf,) united in a lease 
 of the premises to the defendant, (Jeoru'e W. 
 Brown, for one year, at the rent of .^"i.noo per 
 annum— payable 1st. .July aiul 1st .lanuary — 
 tf) each a moiety. The lease also included the 
 nise of the two slaves attached to the wharf. 
 By the stipulations of the lease, the negroes 
 were to be fed and clad, the taxes paid, and 
 the prenuses repaired, and kept in repair, nt 
 the expense of the lessoi-s; a lease, to the 
 s.ime ettect. had been made between the same 
 parties in the year 1842. Before the close of 
 the year 1843. James Gibln-s made a lease of 
 his moiety to the defendant, George W. 
 Brown, for five years, on the same terms; 
 but the complainant refused to unite in this 
 lease, and. at the expiration of the lease of 
 1S4.".. he attempted to enter upon his moiety 
 of the premises. This led to much litigation, 
 to the particulars of which reference is made 
 in the case of (Jibbes v. Smith. 2 Rich. Kq. 
 l-'il. The ol)ject of that suit was, to have the 
 complainant removed from the trust, prin- 
 cipally on tiie ground, that he declined to re- 
 new the lease for five years, (though reciuest- 
 ed by Mrs. Catharine (iibbes, the comi)laiuant 
 in that proc»'eding.) and had refused to au- 
 thorize her to receive the rent of the premis- 
 
 *293 
 es from the lessee, and *had brought an ac- 
 tion against the defendant. (J. W. Brown, for 
 moneys which had been paid to her. The 
 cau.se was ln-artl in February. 1S4.J, and the 
 bill was dismissed — the Court remarking 
 that, by the provisions of the trust deed, the 
 management of the property was connnitted 
 solely to the trustee, who was to receive the 
 rents, and. .-ifter the necessary deductions, to 
 pay the surplus to the complainant, for the 
 purposes specyied. That the trustee was di- 
 rected to lease the itremises. or such part as 
 he tiiought imijier, and <lirect such re|»airs 
 and improvements as he might tliink neces- 
 sary. That all this was left to his discre- 
 tion, and not to that of the complainant, .Mrs. 
 <iibbes. who had only to receive from the 
 trustee, semi-annually, the nett proceeds of 
 the estate. On an aitjieal taken, this decree 
 was altirnu'd in January. 1S4<). 
 
 It seems, that James (Jibbes had died In 
 November, 1844. intestate, leaving, as his 
 heirs at law. his si.ster. Caroline L. Brown, 
 wife of the deft'udant, and the children of 
 I'aul C. (Jibbes. a deci-ased brother. Inder 
 certain proceedings in partition, the entire 
 
 preraise.s hereinbefore mentioned were order- 
 ed to be sold by the Master, in April, 1846. 
 Tliey were accordingly sold, on the 23d April. 
 ix4«i. and Idd off by the defendant. George W. 
 Brown, for the sum of tifty-eight thousand 
 dollars. The Masters re|)ort of sales was 
 condrmed by Chancellor Johnston, on the 3d 
 July. ]S4»;. Tl»e order further directed, inter 
 alia, that one umiety of the iuo<eeds of the 
 .sale should be paid or transferreil "to Wil- 
 liam J. Sndth, trustee, to be held and apidied 
 to the u.ses and trusts declare<l by the deed of 
 George Glblx-s to M. I'. Walsh, recited in the 
 pleadings." After certain other directions, 
 not important in the present inq'uiry, the de- 
 cretal order concludes as follows! "It is 
 further ordered that, inasmuch as all par- 
 ties are before the court, the Master take an 
 account of the rents due to the said W. J. 
 Smith, trustee, by the .said (Jeorge W. Brown, 
 and of all just allowan<-es against the same; 
 and also, that he state the account between 
 the trustee and Mrs. Catharine Gibbes, and 
 report as to tiie proper investment to be made 
 of the trust fund." 
 
 •294 
 ♦The bonds executed by the defendant. 
 George W. Brown, to the Master, on the 2:]d 
 April, 1846, were payable in one, two and 
 three years, with interest from the date. On 
 the 3d May, 1848, proceedings were institut- 
 ed to foreclose the mortgage executed by the 
 defendant, to secure the payment of these 
 bonds. The report of the Master, tiled 14th 
 March, INol, iturports to be a statement of 
 the amount due on these bonds, under a de- 
 cretal order of reference. One of the.se bonds, 
 conditioned for .?21,,s;33, iiad lieen a.ssigned to 
 W. J. Smith, trustee, under Chancellor John- 
 stons order of 3d July, 1846; another, for 
 •1:8.733.34. had been assigned to W. J. Smith, 
 as guardian of the nunor children of I'aul C. 
 Gibbes. deceased; and a third, for ."!;2.18;j.31, 
 to Richard M. Butler, who had married a 
 daughter of Paul C. Gibbes, deceased. 
 
 No exception is taken as to the amounts 
 reported by the Master to be due on the two 
 latter bonds : but exceptions are tiled on both 
 sides, as to the statement of the bond a.ssign- 
 ed to AV. J. Smith, trustee. Tho.se of the 
 comjilainant will be tirst considere<l. The 
 bond is dated 23d Aprii. 1S46, and the first 
 instalment (':j) was due tm the 2.3(1 April. 
 1847. On the latter day. the Master credits 
 the defendant with the sum of $3,093.57 as 
 "the balance due (J. W. Brown, for his ac- 
 count with the wharf to 1st .March, 1.S40." 
 and ?21().r»4, being the interest on that sum 
 for one year— aggregate .'<3,310.11. It will l)e 
 remarked, that the allowance of this credit 
 of .'i;3.(l'. >:!.."( 7 is a diminution of the capital of 
 the trust estatb to that amount. It was con- 
 tended, that it was an expenditure for per- 
 manent improvements made on the proix-rty. 
 Tills Court has. on more than one occasion, 
 withheld its sanction from this mode of im- 
 proving a man out of his estate, without his 
 
 117
 
 *294 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 consent. Under the stipulations of the lease, , 
 the premises were to be kept in repair, taxes 
 to be paid. etc.. and. if done by tlie lessee, 
 might be deducted from the rent, which was 
 to be semi-annually paid to the trustee, who, 
 by the deed of 1835. was to pay the "nett 
 proceeds, after deducting all charges and ex- 
 penses, to Mrs. Catharine Gibbes. for tlie sup- 
 
 *295 
 port of her.self and the main*tenance and 
 education of the children ;" but it is an ex- 
 press stipulation of the lease, that tlie lessee, 
 George W. Brown, "shall neitlier make, nor 
 suffer to be made, any alterations or addi- 
 tions therein, without the consent of the 
 trustee, for that purpose, in writing, first 
 had and obtained.'' It was very properly 
 said, that if these were valuable improve- 
 ments, the rent should have been proportion- 
 ately increased ; but no authority was shown 
 for these expenditiires, and the Court can 
 perceive no warrant for making this deduc- 
 tion from the bond of the defendant. The 
 •complainant's second exception is sustained. 
 This also disposes of the defendant's first 
 exception. 
 
 The first exception of the complainant may 
 Le considered with the second, third and 
 fourth exceptions of the defendant. All the 
 ditticulty arising out of these exceptions is 
 attributable to the determination of the de- 
 fendant to usurp the authority of the trustee. 
 Both by the condition of his bond, and the 
 opinion of the Court in Gibbes v. Smith, he 
 was informed to whom his payments were to 
 be made; certainly, after January, 1S46, the 
 defendant was aware that the trustee, and 
 he alone, was to judge of the nett proceeds of 
 the income to be paid to Mrs. Gibbes. It was 
 specially provided by the trust deed, that all 
 the expenses and charges incurred in the 
 management of the trust should be first de- 
 ducted, and then, that the nett income should 
 I e semi-annually paid by him to Mrs. Gibbes, 
 for the purposes specified. It was desirable, 
 for obvious reasons, that she should know 
 wuat income she had to expend, and also, that 
 it should be paid to her in the mode prescrib- 
 ed by the deed. The Master reports, that the 
 annual income payable to Mrs. Gibbes, after 
 the sale, was $1,223.07; but the defendant, 
 instead of paying to the trustee, undertook to 
 pay :Mrs. Gibbes, from 23d April, 1846. to 23d 
 April, 1848, the sum of $3,742.44, nearly the 
 income to which she was entitled in three 
 years — thus leaving no income properly pay- 
 able to her for the third year. In the trustee, 
 this would have been an abuse of his trust. 
 But the defendant not only claims credit for 
 them, as if the payments were made to the 
 
 *296 
 trustee, but he claims interest *on the whole, 
 from the time of payment, including interest 
 on the excess. Prior to the decree of 1S45-G, 
 it might be said that the defendant acted 
 under misapprehension, and that he should 
 be subrogated to the rights of Mrs. Gibbes ; 
 iiS 
 
 but, after that time, he was fully apprised of 
 the course he siiould pursue, and, if he en- 
 counters ditficulties, they are of his own 
 seeking. He had no concern in the transac- 
 tions between Mrs. Gibbes and the trustee; 
 and the effect of his interference is only to 
 render comi)licated a very simple transaction. 
 His plain duty was, to pay the bond to the 
 Master, or his assignee — and, in ascertaining 
 the amount due, payments thus made should 
 alone be allowed. These exceptions of the 
 defendant are overruled, and the complain- 
 ant's first exception sustained. 
 
 The remarks before made are illustrated 
 by a consideration of the Gth, 7th and Stli 
 exceptions of the defendant. It has been 
 hei'etofore stated, that prior to the sale of the 
 premises, in April. 1846, there was a litiga- 
 tion as to the rent due for the premises. In 
 the decretal order of July, 1846, provision is 
 made for taking an account of the rent due 
 to the trustee by George W. Brown, after all 
 just allowances; and also directing the Mas- 
 ter to state the account between the trustee 
 and Mrs. Gibbes. The exceptions to be now 
 considered, relate to this account between toe 
 trustee and Mrs. Gibbes, as reported by the 
 Master. There had been three successive 
 trustees under the deed of 1835. to wit: M. P. 
 Walsh, \Yilliam Smith, sen., and W. J. Smith, 
 the complainant ; the last named having be- 
 come trustee in October, 1841 ; no account 
 was ordered in relation to tiie former trus- 
 tees, nor were they parties to the proceed- 
 ings. The only account to be taken was in 
 relation to the present trustee. It will be 
 remembered, that difficulties had arisen be- 
 tween him and Mrs. Gibbes in the latter part 
 of 1843, both in reference to the renewal of 
 the lease and the payment of rent by CJeorge 
 W. Bi'own, the lessee, to her. The trustee, 
 at the expiration of the lease, attempted to 
 enter on his moiety of the premises, and also 
 instituted a suit at law, against the defend- 
 ant, for the rent due. No rent was received 
 
 *297 
 by the com*plainant from the trust estate; 
 but he was subjected to expenses for the 
 trust estate — such as State and City taxes 
 for 1844, 1845 and 1846, professional advice, 
 and other disbursements, amounting, between 
 November, 1843, and July, 1846. when the ac- 
 count was ordered to be taken, to eight hun- 
 dred and four dollars and fifty-two cents, 
 ($804.52.) according to the account reported 
 by the Master, rejecting the disbursements of 
 Wm. Smith, sen., which form no part of the 
 case. This sum was a proper charge upon 
 the income, and should be deducted from any 
 rent found at that time to be due, and from 
 any subsequently accrued income, if the rent 
 then due was insutficient. The Master's 
 statement of the account should be thus mod- 
 ified. But .subsequent to the sale, and the 
 order of July, 1846, the defendant had noth- 
 ing to do with the after transactions between 
 the trustee and Mrs. Gibbes. He had only to
 
 SMITH Vi BROWN 
 
 ♦300 
 
 pay tlio (U'bt which he oontrat'tod with the 
 ^liisItT for till' piiniiase of the property, aud 
 ii[)ou the terms of the purchase. It is inani- 
 f«'sr, that, if lie departed from this, and 
 undertook to make arranj,'emeiits with Mrs. 
 ratharlne (lihhes, he must settle with iier for 
 .•sUch advancements as he thou^'ht proper to 
 make: — for instance, hetween April, 1S47, and 
 April, 1S48, .she was entitled to receive, at 
 nit)st. .S1.L'L':>.09 — probably much less. The de- 
 fendant paid to her, in tiiat time, .$1,91<!.7.") — 
 certainly, this could not be allowed as a pay- 
 ment on ids bond, for it was about .$7(M) more 
 than, in any view, Mrs. Gibl>es was entitled 
 to receive. But as between Mrs. (Jibbcs and 
 the defendant, it was a voluntary payment 
 on his part, she had, therefore, good reason 
 lo supiiose that she was entitled to receive 
 lids amount, as the income due to her, and 
 jirram.'e her expenditures accordingly. How- 
 far .shall she refund to the defendant? And 
 nuist .she not onlj' refund, but with interest? 
 The same remark is applicable to the follow- 
 ing year, during which the defendant paid 
 Mrs. tJibbes $1,!S25.()U when her income cer- 
 tainly did not exceed $l,22;i.07. The trustee 
 would have no authority to make any such 
 payment, thus annually encroaching upon the 
 
 *298 
 
 <'apital of *the estate. It seems, that, in 
 1S49. Mrs. Gibbes was again married, and, 
 by the terms of the deed of 18.35. she was 
 entitled thenceforth, to only a fixed income 
 of seven hundred aud eighty dollars. It ap- 
 pears to the Court, that the adjustment be- 
 tween the defendant aud Mrs. Gibbes may 
 j-e<iuire that it should be made upon different 
 principles from those that would apply to 
 ii settlement between the defendant and the 
 trustee, or between the trustee and Mrs. 
 (Jibbes. The defendant should be re«piired 
 to pay his bond, according to the stipulations 
 therein contained, and the equitable adjust- 
 ment between him and Mrs. Gibbes should be 
 ascertained and fixed upon pleadings framed 
 between them for that purpose. I.<?t the Mas- 
 ter correct his statement of the amount due 
 on the bonds given for the purchase of the 
 mortgaged premises, as herein indicated. 
 
 The remaining exceptions of the defendant 
 are overruled. 
 
 The modification of tiie report hereinbefore 
 directed is merely ministerial, and does not 
 re<iuire a further reference. It is ordered 
 and decreed that, unless the amount due ou 
 the ixtnds given for the mortgaged premises, 
 togetluT with the interest thereon, be paid 
 on or lu'fin'c the first day of February next, 
 the mortgaged premises be sold at such time, 
 and ujion sucii terms, as may be fixed by an 
 order hereafter to be submitted for that pur- 
 IKJse. It is further ordered ami decreed, that 
 the defendant, (ieorge W. I?rown, pay to the 
 complainant the sum of five hundred and 
 nineteen dollars and thirty-.seven cents, with 
 'merest from 2.".d January, 1851, as recom- 
 
 mended ill schedule (C.) of the Master's 
 report. 
 The defendant appealed, on the grounds: 
 
 1. That the credit of $;5,(«>:5 allowed the de- 
 fendant by the rei»ort, should i»e allowed as 
 a charge on the capital of the trust fund. 
 
 Hecjtn.se this sum was exi»ende<l in ueces- 
 .sary permanent improvements to the wharf, 
 which improvements were contemiihited by 
 William Smith, sen., the trustee, when the 
 
 •299 
 wharf ♦was originally leased to defendant, 
 and was ac<puesred in by him and his .suc- 
 cessor, W. J. Smith, as shown by the testi- 
 mony reported to the Court. 
 
 Because, the allowance of the credit Is 
 not, in fait, a diminution of the capital of 
 the trust estate, in as much as the improve- 
 ments, for which it is allowed, were necessary 
 to make the wharf yield rent, and enhanced 
 the value of the property l>eyond the amount 
 of said credits, as shown by the testimony 
 reported to the Court. 
 
 2. That the payments made by the defend- 
 ant directly to the cestui que trust, Mrs. 
 Gibbes, allowed by the report, and disallow- 
 ed by the decree, should be sustained: be- 
 cause, the said payments, as shown by the re- 
 port, do not trench upon the capital, nor in- 
 terfere with any claims of the trustee 
 against the income. 
 
 That Mrs. Gibbes had full power to receive 
 her income as she pleased, or to assign it for 
 valuable consideration; and Mr. Brown, by 
 paying her income to her, was substituted to 
 her rights by her expre.ss consent. 
 
 That an account having been ordered be- 
 tween the trustee aud Mrs. Gibbes, Mr. 
 Brown has a right to have that account 
 taken. 
 
 Petigru, Lesesne, for appellant. , 
 Memminger and Jervey. contra. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW, Ch. This Court is satisfied 
 with the conclusion of the Chancellor to re- 
 ject the claim of Mr. Brown for comi>ensa- 
 tion, frOm the corpus of the estate, for im- 
 provements put upon the premises while in 
 his pos.session. The claim of this defendant, 
 for compensation for improvements, is weak- 
 er than similar claims, which have been re- 
 jected, in the cases of Thurston v. Ditkinson, 
 li Rich. Eq. 'Ml i40 Am. Dec. .5(5], and of Cor- 
 bett V. Laurens, Ms. Charleston. Jan. 1852 
 15 Rich. E(i. .-{Ol]. 
 
 The remaining ground of a|>peal concern.*! 
 the disallowance of the i)ayments made by 
 Brown to Mrs. Gibbes, the tenant for life, 
 after his purchase of the wharf. In this re- 
 
 ♦300 
 spect, too, we ♦are content with the general 
 conclusion of the Chancellor; Imt we think 
 the defendant. Bntwn, is entitled to credit for 
 such payments to Mrs. Gibbes. the cestui que 
 trust for life, as did not exceed her interest 
 
 119
 
 :o 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 in the proceeds of sale, after deduiting the 
 expenditures and conniiissions of the trustee. 
 Brown was contumacious in payinj? directly 
 to the beneficiary, after the decree of this 
 Court, aftirniing the right of the trustee to 
 control the expenditure of the fund, and we 
 are little oisposed to encourage such con- 
 tumacy; still, it is not just that the beneficia- 
 ry should be twice paid, nor that the trustee 
 should retain the fund for his own emolu- 
 ment. The case is to be treated as if Brown 
 had paid the money to the trustee, and the 
 trustee had paid it over to the beneficiary. 
 Brown is entitled to be subrogated to the 
 rights of tlie beneficiary, without disparage- 
 ment of the rights of the trustee; and it is 
 adjudged that the payments by Brown to 
 Mrs. Gibbes shall be allowed, to the extent 
 of her nett income, after all proper allowanc- 
 es to the trustee. 
 
 The extent of the trustee's expenditures is 
 ascertained, and the amount of liis commis- 
 sions, if he claims them, is of easy calcula- 
 tion. So, too, the nett income of Mrs. Gibbes, 
 which may be covered by Brown's payments, 
 is simply a matter of figures, not requiring 
 additional evidence. The whole correction of 
 the Master's report, which we have directed 
 by this opinion, is ministerial, and not re- 
 quiring a new reference. 
 
 It is ordered and decreed, that the Mas- 
 ter conform his report to the opinions here- 
 inbefore expressed, and that, unless the de- 
 fendant, Brown, pay the amount due on his 
 bonds for the mortgaged premises, with the 
 interest tliereon, before the first .Monday of 
 March next, that Master Gray do sell, on the 
 day last mentioned, the mortgaged premises 
 for cash, or upon sucli credit, with interest 
 from tlie day of sale, as those beneficially 
 interested in the mortgage may direct. In 
 all other particulars, the Circuit decree is 
 affirmed, and the appeal is dismissed. 
 
 DUNKIN and DAR(iAN, CC, concurred. 
 
 JOHNSTON. Ch., absent at the hearing. 
 Decree modified. 
 
 5 Rich. Eq. *30l 
 
 *ELIZABETH CORBETT v. M. 
 ENS and Others. 
 
 H. LAUR- 
 
 (Charleston. Jan. Term, 1S53.) 
 
 [Life Estates <©=17.1 
 
 A tenant for life, who puts improvements 
 on the land, is not, as a general rule, entitled 
 to compensation from the remainder-men. 
 
 [Ed. Note.— Cited in Smith v. Brown, 5 Rich. 
 Eq 29S); Scaife v. Thomson, 15 S. C. 368; 
 Buck, Hefflebower & Neer v. Martin, 21 S. C. 
 593, 53 Am. Rep. 702; Sutton v. Sutton, 26 
 S C 39 IS E. 19; Shumate v. Harb-'n, 35 
 S* C. 529, 530, 15 S. E. 270; Trimmier v. 
 Darden, 61 S. C. 233, 39 S. E. 373. 
 
 For other cases, see Life Estates, Cent. Dig. 
 § 38: Dec. Dig. <©=>17.1 
 
 [Wills <S=614.] 
 
 Testator devised lands to trustees, for the 
 use of J. II. for life, with contingent remain- 
 der to her surviving issue : then declaring his 
 "jnteut and purpose" that E. H. should hold 
 the land devised to her "on similar and corre- 
 spondent uses and trusts," in order "to effectu- 
 ate his intent and purpose," he devised lands to 
 the same trustees, "in trust for the use of 
 !•]. II. for life ; and on her decease, then in 
 trust for the use of the lawful issue of E. II., 
 to be equally divided among them, share and 
 share alike : and if it so happen on the death 
 of E. H., she leave no issue then alive, to take 
 the said estate, then in trust for the use of J. 
 II. and S. R.. their heirs and assigns for ever:" 
 —Held, that E. II. took an estate for hfe. with 
 contingent remainder to her surviving issue. 
 
 I Ed. Note.— For other cases, see Wills, Cent. 
 Dig. § 1402; Dec. Dig. <®=614.] 
 
 [^yills (S=498, 531.] 
 
 lichl. further, that all the descendants of 
 E. H.. grand-children as well as children, were 
 embraced by the term issue, and took per capita. 
 
 [Ed. Note.— Cited in Rembert v, Vetoe, 89 S. 
 C. 210, 71 S. E. 959. 
 
 For other cases, see Wills, Cent. Dig. §§ 1088, 
 1148; Dec. Dig. (®=>498. 531.] 
 
 [Tenancii in Common <g=28.] 
 
 Where one tenant in common is in posses- 
 sion f)f the premises, the right of his co-tenant 
 to an account of the rents and profits, is barred 
 by the statute of limitations, except for the last 
 tour years before the tiling of the bill. 
 
 [Ed. Note. — Cited in Scaife v. Thomson, 15 
 S. C. 343. 
 
 For other cases, see Tenancy in Common, 
 Cent. Dig. § 82; Dec. Dig. <©=328.] 
 
 Before Dunkin, Ch., at Charleston, June, 
 1851. 
 
 This case will be understood from the Cir- 
 cuit decree, and the decrees of tlie Court of 
 Appeals. The Circuit decree is a.s follows: 
 
 Dunkin. Cli. It is proposed first to con- 
 sider the claims of the complainant in re- 
 lation to the plantation called Farmfield, sit- 
 uate on the eastern branch of Cooper river, 
 in St. John's Berkley, and the tract of five 
 hundred acres of land in St. Thomas' parish. 
 In the codicil to the will of John Harleston, 
 the great-grandfather of the complainant, 
 executed 5th Sept.. 1793, it is. among other 
 things, provided as follows : "And as for the 
 plantation called Farmfield, and the five 
 hundred acre tract situated in St. Thomais' 
 parish, I do hereby devise the same to my 
 friends William, Edward and Nicholas Har- 
 leston, and their heirs and assigns, on the 
 trusts and for the uses hereinafter set forth : 
 that is to say. in trust to and for the use of 
 my said daughter. Elizabeth Harleston, dur- 
 ing her life : and on her decease, then in 
 trust for the use of the lawful issue of my 
 said daughter, Elizabeth, to be equally dl- 
 
 *302 
 vided among them, *share and share alike: 
 and if it should so happen that, on the death 
 of my said daughter, she leave no issue then 
 alive to take the said estate, then in trust 
 for the use of my daughters, Jane Harleston 
 and Sarah Read, their heirs and assigns for 
 ever." 
 
 120 
 
 (©=3For other case^ see same topic and KEY-.\U.MBER in all Key-Numbered Digests and Indexes
 
 CORBETT V. LALRENS 
 
 *304 
 
 In May. 17t».', Kllzaboth Ilarleston intiT- 
 luarried with Thomas Corbett. and departed 
 tliis life on 17th September, 1S.17. Her hus- 
 l)an(l. Thomas Corhett, survived her. and 
 died in July. IS'iO. There were nine eliildreii 
 of tht' marria.ire. Of these, Tlionias. the eld- 
 est, died i!Oth July, 1S012, an infant of tender 
 years; John Ilarleston, one of the defend- 
 ants, was born tith I-'eI)ruary. 17!)1>; Richard, 
 the father of the complainant, was Ixirn 17th 
 September. ISOl. and died ir)th NovemluT, 
 ISsl';": Elizabeth Ilarleston died liHd June, 
 1S04. eleven months old; Margaret Ilarles- 
 Inii. line of the defendants, was born 7tli 
 .]u\u\ \sm: Thonuis ('. ("orlM'tt was born 
 Mth July, ].«<07, and died, uiuiianied and in- 
 testate. 2i!th June, lS4f); Eli/.alM'th Sarah 
 died llith September, ISIO, ajied eighteen 
 months; Jose|ih was born I'^th March, isll, 
 and died four days afterwards ; Jane died 
 li4th Septend)er. 1817, ajied about eighteen 
 months. Richard Corbett Laurens, one of 
 the defendants, is the son of Marj^aret Ilar- 
 le.ston, and he and the complainant are 
 jirand-children of Elizabeth Corbett. 
 
 In the case of Rutledge v. Rutledge, Dud. 
 Eq. 201, the Court have fixed the construc- 
 tion to be given to this clause of the testa- 
 tor's will, in reference to the rights of the 
 issue of the marriage. It is true, the ques- 
 tion did not arise on the will of John Ilarles- 
 ton; but it is impossible to distinguish the 
 language used from that on which tiie ju- 
 dicial interpretation was there declared. 
 And this seems to have l>een the conviction 
 of the counsel, as no attempt was made at 
 the hearing to distinguish the ca.se, or to 
 <luestion the inference to be deduced from 
 that decision. Two points were adjudicated : 
 First, that the children took vested interests, 
 as they were successively born, subject to 
 open and let in subsequent issue, in proiX)r- 
 tion to their numbers; and. second, that the 
 *303 I 
 
 grand-children are entitled to *take. under | 
 the description of issue, etiually with the 
 cliUdreu. the immeiliate issue of the mar- i 
 riagt'. i 
 
 According to these principl(>s. jit the death 
 of Elizj'.beth Corbett, in September, is;57, 
 EarmHeld and the tract of land in St. Thom- 
 as' were distributable, in the first place, into 
 elev«<n e(|ual shares, of whicii the complain- 
 ant was entitled, in her own right, to one 
 sliare. and each of the defendants, John II. 
 Corbett. Margaret II. Laurens, and Richard 
 <". Laurens, to one .><hare in their own rights, 
 respectively, as issue of Ellzalx'th Corbett, 
 tleceased. Thomas C. Corbett (son of Tiiom- 
 as) was also entitled to one share: and of 
 the remaining six shares, the heirs at law 
 of the six predeceased children of Elizal)eth 
 <'orbett. deceased, were entitled to one share 
 5or each child so deceased. I'nder the Act of 
 1797. Tlnunas CorlH'tt. the fatlier. was en- 
 titled to a proportion of the share of such of 
 lii> ibildren as had died without Lssue and 
 
 intestate: and he subsequently became en- 
 titled, ecpially with the complainant, and the 
 defendants, Margaret II. Laurens and John 
 II. Corbett, to the Interest of his deceased 
 .<on, Thomas C. Corbett. The several sulxii- 
 vlsions can lx» mor«> accurately ascertained by 
 the proper officer of the Court. 
 
 In Se|)tember, 1K.37, the comi>lainant be- 
 came entitled to one eleventh of the estate 
 in her own right, and to two-thirds of what- 
 ever Interest had vested In her father. Rich- 
 ard Corhett. at the time of his death, in Xo- 
 veml>er. ls*J.">, and she, sultsecpiently. to wit. 
 on the 2(ith .tune, 1N4(;, Ix'came entitled to 
 one-fourth of the interest (»f her deceased 
 uncle, Thomas C. Coriiett. The liill prays an 
 account of the rents and profits, from the 
 time of the accrual of the right of possession. 
 This account Is resi.sted by John II. Corbett 
 and .Margaret II. I^aurens. tlie defendants, 
 and who are also the personal representa- 
 tives, as w«'ll as sole legatees and devisees of 
 their deceased father. Thomas C(U-bett. They 
 rely, in the first place, on the statute of limi- 
 tations. It appears from the evidence, that 
 the complainant, at the time of her father's 
 death, was only eight months old, having 
 Ix^en born 10th March, lS'2'j. She was about 
 
 *304 
 twelve ♦years old when her grandmother 
 died, in SeptemlxM-, l.s:]7. and she did not 
 become of age until 10th March, lS4t5. Her 
 grandfather died in July, Is.lO, and this bill 
 was preferred on thi- '_'7th Novemlier, is.">0. 
 
 The statutes of limitations do not, in terms, 
 apply to proceedings in Chancery; but this 
 Court recognizes the provisions of the stat- 
 utes, as it is sometimes snkl, in analogy to 
 the statutes, and, at others, in ol>ediejue to 
 the statutes. See Snuth v. Smith, McM. Eq. 
 12(5. There are many cases, however, and 
 classes of cases, in which Chancery refuses 
 to recognize the plea, or pernut it to Ix' inter- 
 jtosed, although, at law, it would afTord an 
 effectual bar to the action. Rut it is believed 
 that file books afford no precedent for apply- 
 ing the Itar of the statute to a proceeding in 
 Equity, when the statute would l)e nt) bar at 
 Law f(U- the same cause of action. The Act 
 of 17NS (") Stat. 77) allows to ix'rsons under 
 twenty-one years of age five years after at- 
 taining majority to prosecute their right or 
 title to lands. And the Act of 1791, (Id. 170,) 
 aiiolishing the action of ejt>ctment. provides 
 that file method of trying the title to lands 
 (U- teiienu-nts in this State, shall W by action 
 of trespass, in which the jury, by the same 
 verdict, may find for the plaint iff not only 
 file land, but award danniges for tlie mesne 
 profits, and judgment shall lu' entered upon 
 sucli verdict, as well for the damages as for 
 the recovery of the land. If this were mere- 
 ly an action of trespass to try fifle. the com- 
 plainant would not lie barred at Law until 
 10th Ma nil. 1S.~)L and these proceedings 
 were instituted some montiis Ix^fore that 
 time. In her action at Law, she would be 
 
 121
 
 304 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 entitled to recover not only the land, but 
 damages for the mesne profits, as they might 
 be awarded by the jury. The statute would 
 be no bar. But both the defendants and the 
 testator were tenants in common with the 
 complainant, and it would be difficult, if not 
 impracticable, for the complainant to have 
 adequate relief, except in this Court. In ad- 
 ministering this relief. Equity is well satis- 
 fied to follow the Law, and to regard the 
 rights of the complainant as unaffected by 
 the statute of limitations. 
 *305 
 
 *Such would be the judgment of the Court, 
 if, from the time of Elizabeth Corbetfs 
 death, in 1837, her husband, Thomas Corbett, 
 deceased, should be regarded as a mere tres- 
 passer. But this view would be equally un- 
 just to him and to the complainant. He was 
 a tenant in common with her and in right 
 of his pre-deceased children, was entitled to 
 community of possession with the other par- 
 ties interested. An account of the mesne 
 profits is merely an Incident to the recovery 
 of the freehold. And it seems to be very 
 well settled, that the statute of limitations 
 is inapplicable between tenants in common. 
 The possession of one is the iiossession of all. 
 There are exceptions to this general rule. But 
 it may be affirmed that a tenant in common 
 can never avail himself of the statute of lim- 
 itations, to bar the claim of his co-tenant, 
 until his exclusive possession has been so long, 
 and under such circumstances, as would war- 
 rant the presumption of an ouster, or, at 
 least, until he has committed some distinct 
 and overt act, which would constitute him 
 a trespasser. See Willison v. Watkins. 3 
 Peters, 51 [7 L. Ed. 59G], and the authorities 
 there cited. The general principle was fully 
 recognized in Snowden v. Pope. Rice, Eq. 
 174. where the plea of the statute was held 
 to be no bar to the claim of a codistributee, 
 and not only partition was ordered, but an 
 account of the intermediate profits, while 
 the property was in possession of the de- 
 fendant. 
 
 The remaining objection of the defendants 
 relates rather to the measure of accountabil- 
 ity, or the principle on which the account 
 should be taken, than to the obligation to 
 render an account. It is said, that from the 
 decease of liis wife in 1837, until his own 
 death in 1850, the testator acted under the 
 impression that, according to the true con- 
 struction of John Harleston's will, he was 
 entitled to tlie enjoyment of the premises 
 during his life, and that "no contrary opin- 
 ion was ever intimated to him by complain- 
 ant's mother, or by any other person, and 
 that, inasmuch as he continued in peaceable 
 possession of the plantation, and managed 
 the same as his own, and received to his 
 own use the crops thereof, without any claim 
 
 *306 
 *made, or notice on the part of the complain- 
 ant, or her mother, it would be inequitable 
 122 
 
 to liold him, or his representatives, to any 
 account for the rents of the said plantation.'^ 
 It is most probable that the testator lived 
 and died under the impression that his rights 
 were similar to those of Dr. Read, who had 
 married the eldest daughter of Col. John 
 Ilarleston. The original will had given an 
 absolute estate to his three daughters. On 
 the marriage of Mrs. Rutledge, he thought 
 proper to modify his will, and to provide for 
 their respective issue. In the event that 
 Dr. Read or Mr. Edward Rutledge survived 
 their respective wives, such survivor had 
 also a life estate. But at the date of the 
 codicil, and also at the death of the testator, 
 his daughter, IClizabeth, was yet unmarried. 
 By his will, she had an absolute estate in the 
 plantation devised. The codicil declares that 
 the plantation shall be held, not absolutely, 
 but subject to uses and trusts similar to 
 those directed in relation to his daughter 
 Jane, to effectuate which intent and purpose 
 the estates are devised to trustees, and the 
 uses declared. Farmhold, &e.. was to be 
 held "for the use of his daughter Elizabeth, 
 Ilarleston, during her life, and, on her de- 
 cease, then in trust for the use of the law- 
 ful issue of his said daughter, to be equally 
 divided, &c. ; but if it should so happen, that, 
 on the death of his daughter, she leave no 
 issue then alive, to take the said estate, then 
 in trust for his daughters, Sarah and Jane,"' 
 absolutely. The general purpose of the tes- 
 tator, as declared in the codicil, was to cut 
 down the fee given to his daughters to a life 
 estate, with remainder to their issue respec- 
 tively. This is fully accomplished. Kno\\ ing 
 and approving of the alliance of his two 
 daughters, he thought proper to make a con- 
 tingent provision for their respective hus- 
 bands. Why he did not make the same pro- 
 vision in the event of the marriage of his 
 daughter Elizabeth, the Court is not at lib- 
 erty to inquire, or to speculate. The province 
 of the Court is very properly confined to the 
 construction of that which is written. The 
 testator has made no such provision. Nor 
 does it appear to the Court that there is any 
 such inconsistency or ambiguity as would 
 
 *307 
 warrant a judicial *doubt as to the intention 
 of the testator. It c^n only be said, that if 
 the testator's daughter, Elizabeth, had been 
 then married, he would have made the same 
 provision for her husband as he did for Dr. 
 Read and Mr. Rutledge. But, when the 
 testator subseciuently declares distinctly the 
 uses and trusts under which Elizalieth's es- 
 tate is to be held, he gives construction to the 
 former terms used — '"similar" and "cori'e- 
 spondenf — and shows that they are to be 
 "similar and correspondent," according to- 
 the existing .state of things. Any otlier 
 construction would be to make a will for the 
 testator which he did not make, and may 
 not have thought proper to make for him- 
 self. Perhaps the Court has dwelt longer
 
 CORBETT V. T.AL' REN'S 
 
 »309 
 
 than was necessary on this point, as it was 
 rather sn>.'},'estt'(l than pressetl in the ars^u- 
 nient at tlie hearing. Tiien, in wliat manner, 
 and to what extent, is this erroneous iniitres- 
 sion of tl\e defendants' te.stator to affect the 
 rights of his co-tenants? And. in tliis in- 
 «iuiry. it is iiuportant to distinguish between 
 the rights of the complainant, and those of 
 her mother, wlio is one of tlie <lefendants. 
 In Green v. Riddle. 8 Wheat. tiO |.j L. Ed. 
 r)47], it is stated to l)e the general rule of 
 the Englisli Chancery, to allow an account 
 of rents and profits, in all cases, from the 
 title accrued, provided it did not exceed six 
 years, luiless under special circumstances. 
 This princiiile has been repeatedly recogin/.ed 
 in South-Carolina. One of the exceptions is 
 thus stated by the Chanci'llor, in Rowland v. 
 Best, 2 MeC. Eq. .".'JO: "It is not an uncom- 
 mon case for a party, who lies by and per- 
 nii*-s another to occui)y and enjoy jiroperty 
 iis his own. under an apparent good title, 
 which he nnght, and ought to have brought 
 into discussion much earlier, to be restricted, 
 in his demand for an account of rents and 
 jirotits, to the tiling of the bill, or four years 
 before." So far as the complainant is con- 
 cerned, it is ditticult to conceive in what the 
 principle of this exception will avail the de- 
 fendants. She was left without a father, iu 
 early infancy. Her mother was comparative- 
 ly a stranger to^he family ; and to her 
 paternal grandfather slie would naturally 
 look, both for infornmtion in regard to her 
 rights, and for active efforts, if such were 
 
 *308 
 necessary, *in maintaining them. Aicnrding 
 to tlie testimony, she had, at her grand- 
 mother's death, iu 1.S37, derived no estate 
 from her fatlier. While still a minor, to 
 wit: in June, 1S42, her luicle applied to him 
 in lier behalf. The correspomlence between 
 them was submitted to the Court. From the 
 evidence of both the witnesses, it is very 
 iipparent that the complainant was then en- 
 tirely ignorant of her rights, and probably of 
 the instrument from which they were deriv- 
 ed. It is not less certain, that no light was 
 shed upon the subject, in the comnnniication 
 with her grandfather. Knowing, as he well 
 knew, the existence of John Ilarleston's will, 
 whatever construction he may have given it, 
 liow can it be nuiintained that he was per- 
 mitted by the complainant to occupy, as his 
 own, property, the title to which she might, 
 and ought to have brought into discussion 
 much earlier. Rut laches is never imputed 
 to an infant. And so it was recently held by 
 the Court, in a very hard case against a 
 Itona tide purchaser without notice, who had 
 b»>en in undisturlMvl possession for lift ecu 
 years. In Woodward v. Clarke. 4 Strob. Eq. 
 1(!7. it was ruled in the Circuit Court, on the 
 :iulbority of Lahiffe v. Smart 11 Raib'y. 19li] 
 Ibiit Hie minority of one of the co-tenants 
 protected the others from the bar of the 
 statute, and partition was ordered. It was 
 
 ' also decreed that, under the circumstances, 
 
 I the account for rents and profits should be 
 
 I restricted to the time of filing the bill. On 
 
 api>eal from this decree, so much of it was 
 
 atfirmed as <-onfined the account of the adults 
 
 i to the time of liling the bill ; the Court de- 
 
 [ daring, tliat "the disability of a co-itlaintiff 
 
 I could afford them no advantage in tlie claim 
 
 for rents and profits;" but "the account of 
 
 the minor was extended to the period when 
 
 her right accrui'd," and the Circuit decree 
 
 was ordered to be .so nKMlifitnl. The Court 
 
 is of opinion that the coniplainant is entitltnl 
 
 to an account of the rents and itrotits from 
 
 ; the decea.se of her grandmother, Eli/.ab«'th 
 
 1 Corlu'tt, in September, 1KJ7, or rather from 
 
 [ the end of that year. 
 
 Tlie defendant, Mary Oorbett, is entitled 
 to one-third of the interest of her decea.^^ed 
 husband. Ivichard Corl)ett. She has interpos- 
 ed no (laim at any time, and ndw sul)niits 
 I ♦309 
 
 her rights to ♦the judgment of the Court. It 
 seems, therefore, only neces.sary to declare 
 that, in making the partition of Farmtield 
 and the five liundre<l acre tract, one-third of 
 the interest of Richard Corljett, deceased, 
 should be set off to lier. 
 
 Thomas C. Corbett, the uncle of the com- 
 plainant, reside<I with his father until the 
 death of the former, in June, ls4t!. It Is to 
 be presumed that he was .satisfied in rela- 
 tion to his interest in the rents and profits 
 from the time of his mother's death. The 
 complainant's account of rents and protit^, 
 as derived from her uncle's interest in the 
 freeluild. must be confined to the i»eriod of 
 his decease, and thenceforwanL 
 
 The sul»ject next to be ctuisidered is the 
 comiilainant's riglit in tlie two lots of hiud 
 on Ilarlcston (Jreeu, fronting .southwardly 
 un Montiigue-street, running in d«*pth to 
 Rull-street, and joining other lands formerly 
 belonging to John Ilarlcston, on the corner. 
 Under the marriage settlement set forth in 
 the pleadings, the complainant, on the death 
 of her grandfather, Thomas Corbett, iu July, 
 1S.')0, became entitled, as the representative 
 of her deceased father, to one-third of the 
 said premi.si's as tenant in couinion with the 
 defendant.^ John Ilarlcston Corbett and Mar- 
 garet Ilarlcston Laurens. Ry the same «leed, 
 tifty-three slaves were settled to the same 
 uses. The bill claims partition and account. 
 The rights of the complainant, under the 
 marriage settlement, are not controverte<l by 
 the (U'fcndants. Rut in relation to the two 
 lots of land, running from .Montague to Rull- 
 street, on Ilarlcston Green, the defendauts 
 say that their late father erected then«ou "a 
 valuable three story dwelling house, and oth- 
 er out-bulblings, at his own «'X|H>nse, and 
 from his own means, and occupied the same 
 as his own property for the last twenty 
 years:" and they "submit that the estate of 
 rhetr father shall be allowed the value of 
 the imiirovements made by him iu any par- 
 
 123
 
 *309 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 tition to be had." They insist that "a por- 
 tion of the real estate, in its uniuiproved 
 state, shall be assigned in severalty to the 
 complainant, leaving to those claiming un- 
 der Thomas Corbett that portion upon which 
 his improvements stand." 
 *310 
 *If Thomas Corbett had been tenant in 
 common of the premises, it has been settled 
 that he would not he entitled to compensa- 
 tion from his co-tenants, in partition of the 
 premises. It was so ruled in Thurston v. 
 Dickinson, 2 Rich. Eq. 317 [46 Am. Dec. 56], 
 which has been followed in several other 
 cases. Nor, if he had supposed himself ex- 
 clusive owner of the premises, would he be 
 entitled to compensation for the enhanced 
 value which his improvements had given to 
 them, except so far as to diminish his ac- 
 count for the rents and profits to that extent. 
 The subject was fully considered in Green 
 V. Biddle, already cited. It was there ruled 
 that the value of the improvements can never 
 be set up as a substantial demand, but only 
 as a set off against the rents and profits ; 
 that beyond this a bona fide occupant, who 
 supposes hiuiself the rightful proprietor, can- 
 not sustain a claim for the value of his im- 
 provements. It was further held, that the 
 bona fides of his possession ceases so soon 
 as he has notice of the adverse title. These 
 conclusions are founded upon the principle 
 that the recovery of a man's land should not 
 be clogged by conditions and restrictions, 
 which might materially diminish the value 
 of the right ; still the application of the rule 
 has sometimes operated great hardship Loth 
 upon the tenant in common and upon the 
 lioua fide possessor, or purchaser. But if a 
 person l^nowingly and with his eyes open, 
 erect buildings upon the property of a stran- 
 ger, the loss of the buildings would entitle 
 him neither to compensation, nor sympathy. 
 If they were erected on the property of 
 his child, they would be regarded as a gra- 
 tuity. But, when the parent has a life es- 
 tate in unimproved city lands, to which his 
 children are entitled to a remainder in fee, 
 he consults his own enlightened self-interest 
 scarcely less than the future benefit of his 
 offspring, by the erection of such valuable 
 improvements as add to his income, or con- 
 tribute to his comfort and convenience. The 
 testator, with his family, enjoyed the use of 
 his improvements for more than twenty 
 years. There is no ground to suppose that he 
 misappi-ehended his rights, or those of his 
 children, under the marriage settlement. 
 
 *311 
 Nor is there any evidence that *he contemp- 
 lated compensation from his children for the 
 improved value which his outlay had im- 
 parted to the premises. The silence of the 
 testator's will in reference to any such claim, 
 is not without influence. He marks the dis- 
 tinction between "the settled estate" of 
 which the premises on Bull-street constituted 
 a part, and "his private estate." The latter 
 
 124 
 
 he devised exclusively to his son and daugh- 
 ter, and, as a reason for "not mentioning" 
 the complainant in his will, states that "she 
 will inherit her share of the settled estate, 
 and will receive from her mother's family an 
 equivalent equal to what his children would 
 get from his private estate." Did the testa- 
 tor mean that his private -estate consisted 
 in part of valuable improvements which he 
 had erected on the settled estate? Taking 
 the whole will together, it would seem suffi- 
 ciently clear that the testator proposed to 
 give to the defendants the whole of his pri- 
 vate estate, as distinguished from the settled 
 estate, "of which he was then possessed, or 
 might thereafter possess," and that he rec- 
 ognized the right of his grand-daughter (the 
 conqdainant) to her share of the settled es- 
 tate, as it then stood, as a part of her inheri- 
 tance. But, whatever may have been the 
 views of the testator, the Court is of the 
 opinion that such were the rights of the com- 
 plainant upon established principles of this 
 Court. An account must be taken of the rent 
 of the premises, and of the hire of such of 
 the slaves as were not engaged in agricul- 
 tural purposes from the death of the testa- 
 tor in July, 1S50, and of such as were en- 
 gaged in agricultural employments from the 
 expiration of the year, according to the pro- 
 visions of the Act of Assembly. 
 
 It is not understood that any difference 
 of opinion exists as to the rights of the com- 
 plainant under the will of her great grand- 
 mother, Elizabeth Corbett, deceased. In the 
 moiety of the tract of four hundred and 
 three acres, adjoining the Bossis tract, her 
 interest is precisely the same as it had been 
 declared in the Farmfield tract, except that 
 her account of rents and profits must com- 
 mence at the close of the year in which her 
 grandfather, Thomas Corbett, departed this 
 life. 
 
 *312 
 
 *The bequest of the personalty is to Eliza- 
 beth Corbett and Thomas Corbett, "to be 
 held, possessed, &c., by them, jointly, dur- 
 ing their joint lives, and, upon the death of 
 either of them, by the survivor, during his or 
 her life, and upon the death of such survivor, 
 then to the future, as well as the present is- 
 sue of the said Eliza and" Thomas, equally 
 to be divided among them if more than one.'' 
 
 The testatrix died about January, 1805. 
 Two of the children of Eliza and Thomas 
 Corbett, to wit, Thomas, who died 29th July, 
 1802, and Elizabeth Harleston, who died 
 22d June, 1804, do not fall within the de- 
 scription of the testatrix's will, and conse- 
 quently, as was determined in Rutledge and 
 Rutledge, took no interest in this bequest. 
 \Yith this modification, the rule declared in 
 relation to the devise of Farmfield, under 
 the will of John Harleston, is applicable to 
 this bequest. A reference must be had to fix 
 the several dates accurately, and report the 
 rights of the parties according to the princi- 
 ples herein stated.
 
 COR15ETT V. LAURENS 
 
 ♦315 
 
 It i-; (ii(k'ivd and dciiveil, that a writ of 
 liartition issuo to divide the plantation rail- 
 ed Farnititdd, and tlu' tract of land in St. j 
 Tlidinas' parisli, ainonj; the prirtit's, in tlu' 
 lH()l)orti<tns to he reported Ity the Master, on 
 tlie principles hereinhefore declared, and also 
 to divi<le the premises extendiu;; from Hull 
 to Montairue-street. and the neu'roes specified 
 in the marria.ue settlement, with their issue, 
 into three e(iual parts; one part thereof to 
 he assiiined to the complainant, and oih* part 
 to each of the defendants, John Ilarleston 
 Torhett and Marj^aret Ilarleston Lann'us, to 
 be held hy them respectively, in severalty; 
 also, to divide the moiety of the four hun- 
 dred and three acre tract, adjoininj; the 
 Kichmond and Farnifield plantations, and 
 the iiersonalty derived under the will of 
 Klizaheth Ilarleston, deceased, anion?; the 
 parties interested, accordint,' to the report of 
 the Master, to he made on the princijdes 
 hciciu declared. And if. in the jud^rment of 
 the Connnissioners. partition cannot he ad- 
 vantageously made of any part of the prem- 
 i.ses above described, then that they make a 
 
 *313 
 special return in regard tt> the *same, ac- 
 cording to the directions of the Act of As- 
 sembly in such case made and provided. 
 
 It is further ordered and decreed, that it 
 be referred to one of the Masters of this 
 Court, to state an account of the rents and 
 l)rotits of the real estate, also of the hire and 
 use of the slaves, upon the principles of this 
 decree, and that he have leave to report any 
 si)ecial matter. 
 
 The defendants, John 11. Corbett and Mar- 
 garet II. Laurens, appealed on the grounds: 
 1. Because the statute of limitations is a 
 bar to the account claimed of rents and prof- 
 its by the complainant, for more than four 
 years from the tiling of the bill. 
 
 1'. Because, under the circumstances of 
 this case, no account for rents and proHts 
 should be allowed before the tiling of this 
 bill, or at least before the death of Thomas 
 Corbett, .sen. 
 
 li. Because the lots embraced in the set- 
 tlement of Thomas Corbett and wife, are cap- 
 able of just partition by metes and bounds; 
 that the larger [jortion thereof are unimprov- 
 ed, and of more value than the lot which has 
 been improved, and that in making iiartition 
 among the remaindermen, a portion of the 
 unimproved lots should be assigned to the 
 complainant as her share, and the lot with 
 the imjirovements made by the testator, 
 should be assigned to his son and daughter as 
 devisees, at their rateable value, as unim- 
 ]troved lots of land. 
 
 4. Because the complainant is not entitled 
 to any account of the rent of the dwelling 
 linnse. 
 
 .">. ISecnnse, uiiiler the said codicil. Kli/a- 
 beth Corbett took either an estate in fee 
 conditional, or an estate for life, with a con- 
 tingent remainder to her issue surviving her; 
 
 that in the first case. Thomas Corbett would 
 have lu'en entitled to hold the estate for life 
 rv3 tenant by the curtesy: and in the latter, 
 nctne of the i.ssue could take who died in the 
 life time of Elizabeth Corbett. 
 
 The defendant. Mary Corbett, also appeal- 
 ed, on the ground, that she was entitled to 
 rents and profits from the time her title ac- 
 crued. 
 
 Memmiuger, Flagg. for John II. Corbett 
 •314 
 and Margaret II. *Laurens. cited Stee<lman 
 v. Weeks, 2 Strob. Eq. 115; 1 Story, Di. § 
 055, et seq. ; 1 Madd. Ch. 73: Townshend v. 
 Townslu'ud, 1 Co.\. 2S; 1 Bro. Ch. H. .".0: 
 Williman v. Holmes, 4 Rich. E41. 475: Burle- 
 .s<in v. Bowman. 1 Rich. Eq. Ill: Je.sson v. 
 Wright, 2 I'.ligh. 1; Doe v. I'.urnsall. G T. 
 R. :;0: li Jarm. on Wills, li77, I'sO ; Doe v. 
 Api)lin, T. R. SL' ; Doe v. Cooper. 1 East. 
 221; Tate v. Clark, 1 Beav. 10<>; 1 Bl. Com. 
 120; 1 Ilarg. L. Tr. Itil ; 2 Jarm. on Wills. 
 24(5. 
 
 Macbeth, for Mary Corbett, cited Dornu-r 
 V. Fortescue. 3 Atk. 124: 2 Atk. 2S2 ; 
 Townsend v. Ash, 3 Atk. 3:50: Doe v. Elvey. 
 4 Ea.st, 314. 
 
 Betigru. for appellees, cited B.ackhouse v. 
 Wells, 1 Eq. Abr. 1S4, pi. 27; Fearne. 152. 
 (0th ed. ;) 2 Story. Eq. § 4S7 : Horry v. 
 Glover, 2 Hill. Ch. 515; Snowden v. Evans. 
 Rice. Eq. 174; Myers v. Ander.son, 1 Strob. 
 Ell. 344 ; Wheeler v. Home. Willes. 208. 
 
 The appeal was heard in January. 1S52. 
 and the^ following opinion of the Court was 
 delivered by 
 
 WARDLAW, Ch. Two of the defendants, 
 the devisees and surviving children of Thom- 
 as Corbett, in their appeal, claiui compensa- 
 tion for the valuable buildings erectt^l by 
 hiu), on the lot on Ilarleston (ireen. (hiring 
 his life estate therein. The reasoning of the 
 Circuit decree Is very strong, that if the tes- 
 tator had any equitable right to such com- 
 pensation, he has not assigned it by his will 
 to these defendants; but. waiving this ob- 
 jection, we are concluded by the course of 
 adjudication In this State, from admitting 
 the claim of a tenant for life to be reim- 
 bursed for his improvements of the estate. 
 
 It is unjust, that one shall be enriched at 
 the expense and to the wrong of another ; 
 and Courts of Equity el.sewhere, pursuing 
 this maxim, have allowed, to some extent, 
 the benefit of his imjirovements. to a tenant 
 in conunon, or other joint owner, who has im- 
 proved the joint estate, under the honest 
 conviction of exclusive ownership in himsdf, 
 or under other circumstances eipmlly strong 
 in natural eipnty. Such relief is extended 
 
 *315 
 only *wbere the refusal of it would operate 
 as a frauil. or unconscientious hardship, 
 upctn the inquoving co-tenant. He is not 
 
 125
 
 •^315 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 wniiised in any just sense, if detriment to 
 himself be occasioned by liis own folly and 
 wilfulness. If he be cognizant of tlie rights 
 of his co-tenants, he may either contract 
 ■with them concerning prop(Jsed improve- 
 ments, or by easy process of partition, he 
 may obtain his share in severalty ; and if 
 he neither so contracts nor severs, before ex- 
 l)endilig his money in improvements, he must 
 either reckon that liis proportion of tlie es- 
 tate will justify the outlay upon the vphole, 
 or intend a gratuity to the other owners. 
 To reimburse the improving tenant in com- 
 mon, to the extent of the cost of the improve- 
 ments to himself, would enable one of prod- 
 igality and capricious taste to deprive liis 
 fellows in the tenure of all shares in the 
 common estate, by subjecting them to debts 
 for structures and innovations that were 
 valueless and distasteful. It is scarcely less 
 objectionable to allow to an improving ten- 
 ant in common, by general rule, reimburse- 
 ment to tlie extent of the market value im- 
 parted by his improvements to the estate; 
 for the commercial value does not constitute 
 the whole value of an estate. Some changes 
 might increase the price an estate would 
 liring at auction, which would greatly dis- 
 parage it in the estimation of some of the 
 joint owners: such as the removal of a mon- 
 umental ruin for the erection of a shop. One 
 who does not wisli to sell his undivided 
 share of an estate, can hardly be compelled, 
 consistently with equity, to pay for improve- 
 ments, so called, that are offensive to his 
 taste, or to his ancestral and patriotic pride, 
 or dis]>roportionate to his means. Without 
 further pursuing tliis train of remark, it is 
 enough to say, that our cases have settled 
 the question against the right of an im- 
 liroving tenant in common, to the exclusive 
 benefit of his improvements. Hancock v. 
 Day. McM. Eq. 69 [36 Am. Dec. 293; Id., 
 McM. Eq.] 298; Thompson v. Bostick. Id. 
 75 ; Holt & Kerr v. Robertson, Id. 475 ; Del- 
 lett V. AVhitner, Chev. Eq. 213; Thurston v. 
 Dickinson. 2 Rich. Eq. 317 [46 Am. Dec. 56]. 
 The equity of a tenant for life against re- 
 maindermen for tlie Iienefit of his improve- 
 
 *316 
 ments. is inferior to that of a tenant in *com- 
 mon in like case. The tenant for life is ex- 
 clusively entitled to the enjoyment of the 
 estate for an indefinite term of time, as 
 measured by the calendar, always long in 
 his anticipation ; and as to him the inter- 
 ference is more natural that he intends his 
 improvements for his personal use. He is not 
 interested in the inheritance, and has little 
 pretension to anticipate the interests or the 
 wishes of his successors. He is an Implied 
 trustee for the remaindermen, and by general 
 rule in Eipiity, trustees are not entitled to the 
 profits of their management of the trust es- 
 tate. His estate is not unfrequently given, 
 rather for the preservation of the rights of the 
 remaindermen, than for his own enjoyment. 
 126 
 
 ^^^lere a bounty to him is clearly inten(hMl. it is 
 commonly no moi-e than the enjoyment of the 
 estate, in the existing condition, at the time 
 of the gift, or in a progressive condition con- 
 templated by the donor at the time of the 
 gift. Courts of E(iuity in England, which 
 admit tliis equity as to improvements more 
 liberally than we do between tenants in com- 
 mon, have not recognized the claim of a 
 tenant for life to compensation for improve- 
 ments, except in the case where he has gone 
 on to finish improvements permanently bene- 
 ficial to the estate, whicli were begun by the 
 donor. Hibbert v. Cook, 1 Sim. & Stu. 552. 
 The doctrine, as limited, seems to be approv- 
 ed in Ex parte Palmer, 2 Hill, Eq. 217. 
 There, an allowance was made to an execu- 
 tor for improvements put by him on an unim- 
 proved lot in the city of Charleston, which 
 by subsequent marriage with the widow of 
 testator, he acquired for life ; but the gener- 
 al rule against such allowance to a tenant 
 for life is expressly stated. Tliis, as a gen- 
 eral rule, is not unconscientious ; and in 
 cases which may seem to be proper excep- 
 tions to its operation, as in a gift for life of 
 wild lands, in such terms as clearly import 
 an intended bounty to tlie tenant for life, 
 which cannot be enjoyed in the existing con- 
 dition of the subject, the tenant may obtain, 
 by timely application to this Court, either 
 a sale of the whole estate, so that he may 
 enjoy the income, or authority to make im- 
 provements permanently beneficial ; and he 
 suffers from lii.s own wilfulness, if he pro- 
 ceed upon his own notions of improvement, 
 
 *317 
 without asking *aid or advice. The Court 
 may sanction what it would have previously 
 authorized, but it encourages no experiments 
 upon its power of retroactive relief. 
 
 The inference of gratuity, rather than 
 charge, is made against the heady improver, 
 who disdains to consult in advance his suc- 
 cessors in interest, or the Court which may 
 provide for their rights and their wishes. 
 In the present case, the improvements were 
 made by a father on land to which liis chil- 
 dren were entitled after nis life, and as he 
 in his life time made no claim for a debt on 
 account thereof, it is fitly presumed that he 
 intended his improvements as an advance- 
 ment. 
 
 Under the Act of 1791, tlie Commissioners 
 to whom the writ of partition is directed, 
 have authority to make specific division of 
 tlie premises, or to assign the whole to one 
 or more of the parties in interest, as well as 
 to recommend a sale. In a proper case, this 
 Court might instruct the Commissioners to 
 assign to the parties, respectively, such parts 
 of the estate as would best accommodate 
 them, and be of most value to them, with 
 reference to their several positions to the 
 property before partition. Storey v. John- 
 son. 1 You. and Col. 538, 2 Y. and C. 586. 
 But in the present case, we decline to inter-
 
 (■(•ki;i;tt v. lal ki:\s 
 
 32a 
 
 fere with flie diseretion of the Coiuiiiissioners 
 l»y instruct ions in julvanee. as wt- do not see 
 that tlie survivin},' cliiklren of Tlionias Cor- 
 bett have any superior elaiuis to liis iuiprove- 
 luents, to tlie dauyliter of liis deceased son. 
 
 The defenihints" liftli ground of appeal rais- 
 es the (luestion. whether under tiie <odii-il to 
 tlie will of Jolm llarleston. Mrs. Kli/alteth 
 Corliett took an estate in fee conditional in 
 Farnilield anil tlu' tract in St. Thomas' 
 parish, with the incident of an estate for 
 life I)y the curtesy in her surviviuf,' husliand. 
 On this (piestlon, this Court has not yet at- 
 tained a satisfactory conclusion : and this 
 I)art of flu> case is reserved for future jud)^- 
 nient. 
 
 If this ([uestion he resolved in favor of the 
 defendants, the parties to take the lands, and 
 the shares in which they will take, may he 
 different from tliose declared in the (Mrtuit 
 decree. In that event, too. the claims for 
 
 *318 
 rents and profits by the plaintitT *and hy the 
 defendant. Mary Corbett, would extend to 
 the time only since Thomas Corbett's death: 
 and of course, there would be no room for 
 the application of the statute of limitations. 
 It is difticult to see. in the facts of this 
 case, anythinii which should limit the demand 
 of Mary Corbett for rents and profits, from 
 the accrual of her ri^iht, any more than that 
 of the plaintiff", unless it be by the statute of 
 limitations. If by our ultimate determina- 
 tion, the claim for rents and profits by the 
 plaintitT and Mary Corbett. shall reach be- 
 yond the death of Thomas Corbett. the term 
 of the bar of the statute of limitations will 
 become an impiutant inquiry. We are at 
 present inclined to the conclusion, that, as a 
 general rule, the claim for rents and profits 
 is a i)ersonal demand, a debt not by specialty. 
 and is barred by the term which would bar 
 the suits for an analogous claim at law, 
 account, assumpsit, and debt on simple con- 
 tract. But it is doubtful whether this rule 
 applies to the cases of tenants in conunon. 
 At common law. if one tenant in connnon take 
 the whole profits, his co-tenants have no 
 remedy against him. Litt. Sec. IVSA, and Co. 
 Mtt. liO. liy 27tn section of 4 and 5 Anne, 
 c. l(i. an action of account is given to a ten- 
 ant in conunon iigainst his co-tenant, who has 
 received more than his just share or propor- 
 tion of the profits ; but this remedy extends 
 only to the actual receipt of rents and profits, 
 and not to the case where the tenant in com- 
 mon is in the occupation and enjoyment of 
 the premises. Wheeler v. Ilorne, Willes. I'Os. 
 It is clear that the statute of limitations does 
 not run as to the title to the lands themselves, 
 in favor of the tenant in conunon in pos.ses- 
 sion. without actual ouster, against his co- 
 tenaiits : and we reserve our opinion, whether 
 the incidental claim for profits is governed 
 hy the same i)rin(iple. We decide nothing as 
 to jxiints which may lie sujierseded by our 
 final judgment uii the question, whether 
 
 Thomas Corbett had an estate for life by the 
 curtesy. 
 
 It is ordered and decreed, that the Circuit 
 decree be aflirnied. and the appeal be dis- 
 mls.sed, so far as the partition of the lots ou 
 llarleston (Jreen is concerned. In otlier re- 
 spects, the tpiestions made by the aiipeal are 
 reserved for jiidgnient. 
 
 DL'XKIX and l)AIt<;A.\. CC.. concurred. 
 •319 
 
 •At this Term, .lanuary. ls."»:;. the oiiinion 
 of the Court upon the iiue>tions reserved 
 was delivered by 
 
 WAUIM.AW, Ch. This <ase was heard at 
 the last sitting of this Court, and an opiidou 
 was then pronoumed. afhrndng the Circuit 
 decree, and disnussing the appeal, so far as 
 the iiartition of the lots on llarleston (Jreen 
 was involved, and reserving our judgment 
 on the other tpiestions nnide by the apiieal. 
 The points reserved depend upon the con- 
 struction of the cttdicil to the will of John 
 llarleston. devising the plantati»»n. I'arm- 
 tield. and a tract of land in the parish of St. 
 Thomas, in trust for his daughter Klizabeth. 
 
 When the codicil was executed, the im- 
 mediate fanuly of the testator consisted of u 
 wife and thret' daughters — Sarah, the wife of 
 William Head. Jane, atiianced. with his ap- 
 probation, to I'xlward lUitledge. and Eliza- 
 beth, under no contract or engagement of 
 marriage. liy his will, the testator had de- 
 vised to his daughters, in fee simple absolute, 
 the same lands which are settUnl upon the 
 daughters, respectively, by the codicil. 
 
 Besides other provisions, not affecting this 
 litigation, this codicil contains the following 
 devises: "And it is further my will and 
 ph'asure, and I do hereby direct, that the 
 tract of land i-jilled Richmontl." &c., •'devi.sed 
 to my daughter Jane llarleston. by my said 
 will, shall be htdd by my friends William, 
 Kdward and Nicholas llarleston: and I do 
 hereby devi.se the said land to them, and to 
 their heirs and assigns, in trust to and for 
 the use and benetit of my said daughter. 
 Jane and of the said Kilward Kutle<lge. Jn 
 the event of the said marriage taking i»lar(\ 
 during their joint lives: and on the ilejith of 
 eitluM" of them, then in trust for the survivor, 
 during his or her life: and on the death of 
 both, then in tru.st for any lawful issue which 
 the said Jane may leave alive, to be e<iually 
 divided among them, if more than one. share 
 and share alike, in fee sinqile: saving and re- 
 serviiig to my wife. Klizabeth, her life «»state, 
 residence, and right to plant with her negroes, 
 as given by my will, in the house and jilanta- 
 tions of Richmond and I'.iiiMtifld : but if it 
 
 ♦320 
 should so happen, that on the death of ♦both 
 the .said Jane and Ivlward. there should be 
 no lawful issue of the said Jane then alive, 
 to take the said estate, agreeably to this will, 
 then in trust, that the said tracts of land be 
 
 127
 
 *320 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 equally divided between my daughters, Sarah ' 
 Read "and Elizabeth Ilarleston, their heirs 
 and assigns forever. It is further my will, 
 and I do hereby direct, that the plantation 
 called Rice Hope, which I have devised to 
 my daughter Sarah Read, and the plantation 
 called Farmfield, with the live hundred acre 
 tract in St. Thomas' parish, which I have de- 
 vised to my daughter Elizabeth Harleston, 
 shall be held on trust, and to uses similar 
 to and correspondent with those I have di- 
 rected in the preceeding clause, respecting 
 the Richmond place I have devised to my 
 daughter Jane. To effectuate which intent 
 and. purpose, I "do hereby devise the said 
 tract of land, called Rice Hope, and the said 
 plantation, called Farmheld, and the five 
 hundred acre tract in St. Thomas' parish, 
 to my friends William, Edward and Nicholas 
 Harleston, and their heirs and assigns, in 
 trust to and for the following uses and pur- 
 poses: that is to say, as for the plantation 
 Rice Hope, in trust to and for the use of my 
 daughter Sarah, and her husband. Dr. Wil- 
 liam Read, during their joint lives: and on 
 the death of either of them, then in trust 
 for the use of the survivor, during his or her 
 life: and on his or her decease, then in trust 
 for the use of any lawful issue of the said 
 Sarah, to be equally divided among them, 
 if more than one, in fee sinq)le: but if it 
 .should so happen, that on the death of the 
 survivor of the said Sarah and William Read, 
 there should be no lawful issue of the said 
 Sarah alive, to take the said estate, agree- 
 ably to this will, then in trust, that the said 
 tract of land be equally divided between my 
 daughters, Jane Harleston and Elizabeth 
 Harleston. their heirs and assigns for ever. 
 And as for the plantation called Farmfield, 
 and the live hundred acre tract situated in 
 St. Thomas' parish, I do hereby devise the 
 same to my friends William, Edward and 
 Nicholas Harleston, and their heirs and a.s- 
 signs. on the trusts and for the uses herein- 
 after set forth: that is to say, in trust to and 
 for the use of my said daughter, Elizabeth 
 
 *321 
 Harleston, during her life: *and on her de- 
 cease, then in trust for the use of the lawful 
 issue of my said daughter Elizabeth, to be 
 equally divided among them, share and share 
 alike: and if it should so happen, that on 
 the death of my said daughter, she leave no 
 issue then alive to take the said estate, then 
 in trust for the use of my daughters, Jane 
 Harleston and Sarah Read, their heirs and 
 assigns forever." 
 
 Elizabeth Harleston, the devisee of the 
 lands which are the subject of this suit, after 
 the death of her father, became the wife of 
 Thomas Corbett and the mother of nine chil- 
 dren. She died September 17, 1837, and her 
 issue then surviving were three children, 
 John H., Margaret H. and Thomas, and two 
 grandchildren, Richard C. Laurens, son of de- 
 fendant, Margaret H., and Elizabetli Corbett, 
 
 128 
 
 the plaintiff. Of the six children of the said 
 Elizabeth Harleston, who pre-deceased her, 
 namely, Thomas, Richard, Elizabeth, Eliza- 
 beth Sarah, Joseph and John, all died in- 
 fants, intestate and uumari'ied, except Rich- 
 ard, who attained full age, and died leaving 
 one child, the plaintiff, and a widow, the de- 
 fendant, Mary Corbett. Of the issue that 
 survived Elizabeth Harleston, Thomas, sec- 
 ond son of that name, died in 1846, unmar- 
 ried and intestate, leaving his father, his 
 brother, John H., his sister, Margaret H., 
 and his niece, the plaintiff, equal distributees 
 of his estate. Thomas Corbett, the father, 
 continued in possession of the lands devised 
 to his wife until his death, in July, 1850, 
 This bill was filed Nov. 27, 1850, amongst 
 other things, for partition of the lands de- 
 vised to Elizabeth Harleston, and an account 
 of the rents and profits. The plaintiff' at- 
 tained full age, March 10, 1846, more than 
 four years before the death of her grandfa- 
 ther. The extent of the plaintiff"'s title to re- 
 lief in this matter depends upon the con- 
 struction of the codicil above recited, as to 
 her share in the lands, and also upon the 
 operation of the statute of limitations, as to 
 her share of the rents and profits. 
 
 First, as to the plaintiff's share in the 
 lands. It is adjudged in the Circuit decree, 
 upon the authority of Rutledge v. Rutledge, 
 Dud. Eq. 201, that the children of Elizabeth 
 
 *322 
 ixarleston, *as they were successively born, 
 took vested interests, opening to let in sub- 
 sequent issue, and of course diminishing in 
 proportion as the issue increased: and that 
 all descendants took equally with children, 
 under the description of issue. The defend- 
 ants insist, by their fifth ground of appeal, 
 that the said Elizabeth Harleston either took 
 an estate in fee conditional, with the incident 
 of an estate for life in her surviving husband, 
 by the curtesy: or an estate for life, with 
 contingent remainder to her surviving issue, 
 in exclusion of her issue that died in her life 
 time. 
 
 It is a general rule, in the interpretation of 
 a written instrument, that the construction 
 be made from all its parts, so as to give, if 
 reasonauie, a consistency to the whole instru- 
 ment, and avoid discordance in its parts. 
 One part helps to expound another; and, in 
 ascertaining the meaning of any clause, we 
 should consider the whole context. In this 
 codicil, the testator explicitly declares his 
 purpose, that the lands respectively devised 
 to his daughters, Sarah and Elizabeth, "shall 
 be held on trusts and to uses similar to and 
 correspondent with those" created in the 
 preceding clause, respecting the devise of 
 Richmond to Jane. The meaning of this dec- 
 laration of purpose, by itself, seems plain, 
 that the three daughters should have the 
 same interest, enjoy their several estates, 
 with such change, only, as the variety in 
 their condition required. Elizabeth was not
 
 CORHKTT V. LAURENS 
 
 married, like Sarali, nor afliaiued, witli tlie 
 approbation of tlie test«ti>r, like Jane, and 
 slie niijiht never marry, witli or witliout such 
 approliatioii. No eontins-'eiit estate, by sur- 
 vivorsliip, in Klizalietli's lutiir*' husband, 
 ivhouUl b«' implied, under such cirtumstames: 
 esi)ecially when the t»'statur, in undertaking 
 ttt repeat the declaration of his purposes, 
 OJnits provision, in her case, for such surviv- 
 inj; husband. The same motive whlcii induc- 
 ed the testator to omit provision for the fu- 
 ture and unknown husband of Kli/.abeth, tlie 
 uncertainty of his suitability, would operate 
 on testator to prevent accretion to the Inis- 
 liand's interests by the death of issue in the 
 life time of tlie wile. We may lmaj,'inc mo- 
 
 •323 
 fives Ml a test.itor lor ;i nmrc strict ♦settle- 
 ment upon the is-sue of an uiiasccrtalni'd hus- 
 band of his dau;,'hter, but wc shoidd not 
 naturally exi)ect that he would !.;ive to such 
 issue estates that nd^ht enure to increa.sed 
 advantajre of such husband, beyond the con- 
 tintrent rights of husbands, known and ap- 
 proved. Yet such would he the result, in this 
 «ase, of holding that the issue, as they came 
 into beins:, took vested interests, liable to he 
 transmitted, if they died intestate, to the fa- 
 ther and other distrmutei's. 
 
 I>y the careful provision of the testator for 
 cross remainders amonj; his dauL'hters, in 
 case any of them died without surviving 
 issue, we may see his general intent to pro- 
 duce eiiuality anion;; his dau;:hters and their 
 .surviving' issue. Hut the lan;j;ua^'e of the tes- 
 tator, in the limitations over, d(>serves to be 
 carefully considered. In every instance, the 
 gift over is in case the particular le^;atee 
 leave no issue alive, at her death, to take the 
 estate. I a^'iee to the doctrine of Whitworth 
 V. Stuckey. 1 Rich. Eq. 404. that the terms 
 cmi)loyed in the «ift ctver. if tletinini; issue 
 within tJie rules as to peritetuity, do not nec- 
 essarily import ri'striction into the direct 
 gift to issue, so far as real estate is embrac- 
 ed. I may say fur myself, without connuit- 
 ting my iirethren, or intending to impair the 
 authority of the cases upon Hell's will, and 
 those following the same ilecision, that I am 
 not satislicd with the reasoning that, even in 
 n'lation to personalty, if the limitation over, 
 on the failure of issue, he good, the issue 
 necessarily take as piirchasers. Chancellor 
 Johnston, however, in the case of Hay v. 
 Hay [.■> Rich. K<i. .'1^41, has given .satisfactory 
 reasons for some dilference of f«u-ce in the re- 
 tlex oiteration of the terms in the gift over, 
 when applied t<» the dilTerent subjects of 
 realty and pei-sonalty. Still, I apprehend the 
 true doctrine to be, that the <-onstruction of 
 any iiartlcular clause is to be made from tlie 
 whole instrunu>nt, and that the lindtatiou 
 over is to be treated as other portions of the 
 c<mtext. If there be a contluence in expres- 
 sion of meaidng, or pertim-nt reference in the 
 terms of gift over to the terms of direct gift 
 to the issue, the language of the gift over 
 
 5RKH.Ey.— y 
 
 : may iiroperly satisfy us of the intention of 
 ! the donor in using the phrase issue in the 
 I •324 
 
 1 "gift to issue. The terms of the gift over, as 
 I other iHirtiiUis «)f the context, are referential 
 ; and expository In relation to any particular 
 I clause, and not ah.solutely controlling. In the 
 present ca.se, the de.scrlpthiii of Issue In the 
 gift over aids us In the construction, as to 
 the Issue entitled to take by dlr»'ct ulft. The 
 estate Is to go to others, if the tenant for 
 life, at her death, "leave no Issue then alive, 
 to take the .said estate." This' .strongly liull- 
 cates the pur|)o.se of the ti'stator, tluit the 
 Issue to take the estate was the Issue alive 
 at the death of his daughter. Kll/.abeth. This 
 purpo.se Is expresst'd with more pleonasm In 
 relation to the other two daughters, the 
 words "agret'ably to this will" being addetl 
 to the deserlption of Issue to take the estate: 
 but the meaidng is the same. 
 
 Much of th«' <ll(li<ulty of this case arises 
 from the prolixity of convi'yanclng which was 
 usual at tlu' date of this codicil. The testa- 
 tor, having created certain trusts as to the 
 Jands devLsetl to his daughter Jane, and ex- 
 pres.sed his purpo.se that his other two daugh- 
 ters should hold their lands un similar and 
 correspond«'nt trusts and uses, undertakes "to 
 effectuate his intent and purito.se" by rei»eat- 
 ing and specifying the trusts as to the devi.ses 
 to his dausrl'.ters Sarah and Klizal>eth. It Is 
 beyond dispute, that under the devise to 
 Jane she t(»ok an estate for life, with con- 
 tingent remainder to her surviving issue, a 
 contingent estate, on his survivorship, to Ed- 
 ward Rutledge for life, being Interposed; 
 and Sarah and Eli/.alK'th were Intended to 
 take similar and correspondent estates. Hut 
 the testator, or his scrivener, in the gifts to 
 the i.ssue of the latter two daughters, omit- 
 ted the (lualifying words, which the ilaughter 
 may "leave alive at her death." to be sup- 
 plied by the context. 
 
 We are «)f opinion that Elizabeth Harles- 
 ton, under the codicil to the will of her fa- 
 ther, took an estate for life, with contingent 
 remainder to her surviving Issue, In exclu- 
 sion of pre-«leceasetl issue. 
 
 It is clear, upon the authorith's cited in 
 Rutledge v. Ruthnlge, without need of refer- 
 ence to t)ther cases, that all the descendants 
 of Elizabeth Ilarlesfon. whether in the tirst 
 
 •325 
 or a 'more remote d»'gree. take the remain- 
 der In the estates limited after her life, per 
 capita. 
 
 It Is proper to remark. eonferMing the case 
 of Rutledge v. Rutledge, as atTectlng the con- 
 struction of the <'odlcll under consideration, 
 that that case was upon a marriage .settle- 
 ment, and that under marriage settlemeuts, 
 the rea.sonable and the settled construction Is 
 to vest estates In the Issue, as purchasers, at 
 the earll«»st point of time. Heshles. there was 
 no sucn distinct refereme. In the context of 
 the instrument there const rueil, to surviving
 
 *325 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 the mother, qualifjing the sense in which the 
 term issue was used, as we find in tlie pres- 
 ent case. 
 
 The result of our construction is, that the 
 plaintiff is entitled to one-fifth of the lands 
 devised to her grandmother, Elizabeth Har- 
 leston, as issue surviving at the death of said 
 Elizabeth, and to one-fourth of another fifth, 
 as distributee of her uncle Thomas. Mary 
 Corbett, the defendant, has no lot or part in 
 the matter. This conclusion supersedes the 
 necessity of considering the difficult question, 
 whether tenancy by the curtesy is an incident 
 of a fee conditional. 
 
 The further question reserved, is as to the 
 operation of the statute of limitations upon 
 the plaintiff's demand for rents and profits. 
 It is the settled law of this State, that one 
 tenant in common, in exclusive occupation of 
 the estate and pernancy of the profits, is 
 liable to account to his co-tenants, for their 
 shares of the rents and profits. By the com- 
 mon law, co-tenants have no remedy against 
 a tenant in common, who takes the whole 
 profits. The statute of 4 and 5 Anne, c. 16, § 
 27, gave an action of accoinit to a tenant in 
 common, against his co-tenant, who had re- 
 ceived more than his share of the rents ; but 
 the Court of Law restricted the remedy of the 
 statute to the actual receipt of rents, and 
 denied relief, in the case of exclusive occu- 
 pation of the common estate, where there 
 was no actual receipt of rents. Wheeler v. 
 Home, Willes, 208. This Court, however, 
 afforded relief to co-tenants, where one of the 
 tenants in common was in the exclusive oc- 
 cupation of more tlian his share of the prem- 
 ises, without receipt of rents in money, or 
 
 *326 
 *its equivalent. It seems to be just, that 
 while we afford relief to tenants in connuon, 
 beyond the operation of the statute of Anne, 
 we should hold the additional beneficiaries to 
 the same bar as those within the express 
 terms of the statute. Our Act of limitations 
 bars an account not presented by suit at Law 
 within four years, and account for rents and 
 profits is within the scope of its general terms. 
 In the well considered case of Wagstaff v. 
 Smith, 4 Ired. Eq. 1, tlie claim for rents and 
 profits, made by bill in Equity, of a tenant in 
 common, against his co-tenant, in possession 
 of the premises, was held to be restricted by 
 the statute of limitations applicable to ac- 
 count: and we are content to follow such 
 respectable authority. We are of opinion 
 that the statute of limitations bars the plain- 
 tiff's right to an account of the rents and 
 profits, except for the last four years before 
 the filing of her bill. 
 
 It is ordered and decreed, that a writ 
 of partition be issued, to divide the planta- 
 tion, Farmfield, and the tract of land in St. 
 Thomas' parish, among the parties, according 
 to the principles of this decree. 
 
 It is also ordered, that one of the Masters 
 
 of this Court take an account of the rents 
 and profits of said lands, according to the 
 opinions herein expressed. 
 
 It is further ordered and decreed, that the 
 Circuit decree be modified, as herein indicat- 
 ed, and, in all other particulars, be affirmed. 
 
 JOHNSTON, DUNKIN, and DARGAN, CC, 
 
 concurred. 
 Decree modified. 
 
 5 Rich. Eq. *327 
 
 *ADELAIDE GIBBES, Ex'x, v. GIBBES L. 
 
 ELLIOTT and JULIET G. ELLIOTT. 
 
 (Charleston. Jan. Term, 1853.) 
 
 [Equitij <©=:5419.] 
 
 A motion made before the Circuit Court for 
 Charleston, after the Court had been in session 
 several weeks, to set aside an order pro con- 
 fesso, refused — the defendant, making the mo- 
 tion, having in no particular complied with the 
 35th rule of Court. 
 
 [Ed. Note. — For other cases, see Equity, Cent, 
 Dig. SjS 972-985; Dec. Dig. <@x=3419.] 
 
 [Equity €=>336.] 
 
 A party against whom a bill has been taken 
 pro confesso, not being entitled to introduce 
 evidence in defence, as if he had pleaded or 
 answered to the bill, is not entitled to require 
 the production of title deeds. 
 
 I Ed. Note. — For other cases, see Equity, Cent. 
 Dig. § 677; Dec. Dig. <g=>336.] 
 
 [Equitij (©=419.] 
 
 Upon a motion to set aside an order pro 
 confesso, it may be imposed as a condition, that 
 the testimony of certain witnesses taken be- 
 fore the Master, without notice, should be read 
 — the defendant to have the right to produce 
 them and treat them as plaintiffs witnesses. 
 
 LEd. Note. — For other cases, see Equity, Cent. 
 Dig. «!§ 972-985; Dec. Dig. <S=^419.] 
 
 [Wiu.i cs^mi.] 
 
 Testatrix devised to G. E. "aU that lot ly- 
 ing and being at the corner of St. Philip and 
 George-streets, being on St. Philip-street 151% 
 feet, and on George-street 57 feet ; also, that 
 lot being and lying next to the aforesaid lot, 
 fronting on George-street 57 feet, and 151% 
 in depth ;" the rest and residue of her estate, 
 real and personal, she devised and bequeathed 
 to her four children, G. E. being one ; testatrix 
 owned but one lot at the corner of St. Philip 
 and George-streets, which fronted 151% feet 
 on the former, and was in depth 171 feet on the 
 latter: — Held, that the devise to G. E. did not 
 carry the whole lot, but only two-thirds there- 
 of, next to St. Philip-street, to be cut off in 
 two lots, each fronting 57 feet on George-street ; 
 and that the remaining third part passed under 
 the residuary clause. 
 
 [Ed. Note. — For other cases, see Wills, Cent. 
 Dig. § 1221; Dec. Dig. <g=>561.] 
 
 [Equity ©=517.] 
 
 The Court of Equity has no authority, in 
 general, to try questions of title to lands, where 
 the parties claim by distinct titles ; but where 
 the whole dispute is upon the construction of a 
 will, or other written instrument, under which 
 both parties claim, the Court has jurisdiction 
 to determine the rights of the parties. 
 
 [Ed. Note. — Cited in Albergottie v. Chaplin, 
 10 Rich. Eq. 4.33; Reams v. Spann, 28 S. C. 
 533, 6 S. E. 325: Hunt v. Gower. 80 S. C. 83, 
 61 S. E. 218. 128 Am. St. Rep. 862 ; Jenkins 
 V. Jenkins, 83 S. C. 544, 65 S. E. 736. 
 
 For other cases, see Equity, Cent. Dig. § 
 39; Dec. Dig. <S==>17.] 
 
 130 
 
 ^=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 GIBBES V. KLLIOTT 
 
 ♦330 
 
 Before Johnston, Ch., at Charleston, Fel>- 
 ruary, 1852. 
 
 This case will be umlerstootl, fnuu the 
 full statement contained in the oiiinlou deliv- 
 ered in the Court of Appeals. 
 
 Hunt, for apiiellant. 
 
 Fhif^g. Mennuinp'r. <ontra. 
 
 The oiilnidii of tlie Court was dflivcred by 
 
 \V.VK1»L.\\V, Vh. This al)peal of the de- 
 fendant. <;ilil>es L. i:ili(.tt. controverts deci- 
 sions of the Chancellor at two separate 
 staples of the ca.se, and the consideration of 
 it may he conveniently divitled in reference 
 to tiiese sta},'es. The bill was filed Septem- 
 ber 2.']. ls.")l. and on the ne.\t day, B. F. Hunt 
 
 *328 
 & Son, *Soliiit(irs of the Court, endorsed 
 upon the suliiMcna that tliey appeared for the 
 defenoant. On Xovendier lU. 1S51, the bill 
 was ordered to be taken pro confesso. On 14 
 and 20 February, l8o2, the testimony of cer- 
 tain witnesses was taken by the Master, at 
 the instance of the plaintiff, without notice 
 to the defendant or ins .solicitors. On March 
 2, is~)'2. during the sitting of the Court, which 
 began on the tirst Monday of Felu-uary, Mr. 
 Hunt, in behalf of defendant, moved to set 
 aside the order pro confesso. and for leave 
 to lile an answer ; and also moved, that 
 plaintiff be compelled to produce the title 
 deeds of the lot at the corner of Ceorge and 
 St. Philip-streets. These motions being op- 
 posed by the counsel of the plaintitf. were 
 refused by the Chancellor. Thereupon. Mr. 
 Hunt serveil the Chancellor with grounds of 
 appeal, and a statement of facts preti.xed, 
 which perhaps in substance, but in form al- 
 together different, are repeated in tiie print- 
 ed brief. On March 4. lsr)2. the Chancellor 
 made the following ri'port on tliese grounds, 
 which, in violation of the rule of Court, is 
 omitted from the brief: 
 
 '•The annexed notice of appeal has been 
 served ou me ; and the .statement of facts 
 which it contains is so inaccurate, as to ren- 
 der a report, on my part, necessary. Mr. 
 Hunt, made a motion, on the 2d of March, 
 1S52, (the Court having bitMi in .session from 
 early in February,) to set aside an order i)ro 
 i'onfesso. and for leave to tile an answer in 
 this cause. The motion was not reduced to 
 writing. 
 
 "It was objected to by .Mr. ^b'mn^nger. un- 
 less it were made a condition, that the testi- 
 mony of some witnes.ses winch bad been tak- 
 en, sliould be allowed to stand; at tiie same 
 time consenting, that Mr. Hunt's client might 
 produce the witnesses and exandne them 
 further, or cross-e.xandne tlicm on his part. 
 
 "Mr. Hunt resisted the condition, and in- 
 sisted on his motion as matter of right. 
 The Court d<'<i(U'd, tiiat he hail no such right 
 under the rule of Court: tliat tlu- tondition 
 
 *329 
 was reasonable, *aud if .Mr. Hunt would take [ 
 
 Ids motion on tliat condition, he was at liber- 
 ty to do so. He declined this offer. 
 
 "There was not a word said by the Court 
 by way of re<|uiring the <ondltion to api»ear 
 as granted upon his motion. 
 
 "He then made a verbal motion, that the 
 plaintiff be ri-^piirtHl to deposit su<b title 
 dr«'ds as were in lier possession. Mr. .Mem- 
 minger reslsteti it on the grounds: 
 j "That he had n'«vlveil no notice of the 
 I motion. It apiieared. and was adndtted. 
 (though at tirst, .Mr. Hunt as.s».rted noiice.i 
 that no notice had been given: 
 
 "That Mr. H.s client had not apiH-annl 
 to the suit: 
 
 "That ilefendant was in contempt for non- 
 appearance, and for not answering, and wa.s 
 not entitled to move, or be ln'ard In the 
 cause: 
 
 "That he was not entifliMl to offer evidence, 
 (under the rule of Court,* having neither 
 plea nor answ«M' to sup|iort by it. 
 
 "The Court waived the (piestion of non- 
 a|ipearance. intimating an opinion, however, 
 that hl.> appearance, though not re::ular. was 
 good. It also waived the (lue.stion of c«-)n- 
 tempt; but it ruled, that, under the rule of 
 Court, the defendant was not entitled to his 
 motittn. That, under the rule, he was only 
 entitled to be heard upon such objections as 
 he could have urged, if he had denuirrtHj to 
 the bill; and was not entitled to introdu«.v 
 evidence in defence, without laying a fouiala- 
 tion for it by plea or answer; and that 
 the only possible use he could have for the 
 deeds, was to make them the basis of evi- 
 dence; and that, if the deeds were material 
 to his interests, he should show the fact by 
 allidavit. 
 
 "Further than this. I di> not recognize the 
 correctness of the statement of the facts, 
 made In the grounds of api»eal." 
 
 It is stated, and not <lisputed, that the 
 draft of an answer, not signed nor sworn to, 
 was left with the Register, before the sitting 
 of the Court ; but it was not an answer at 
 the time of the aiiiilication to tile it, and be- 
 came an answer liy the jurat of the defend- 
 ant on the Nth of .March, six days after the 
 aiii)lication. 
 
 Tile r»'asoning of the Chancellor's ri'i»ort 
 •330 
 is entirely satlsfac*tory to this Court, but 
 from respect to the earnestness with which 
 the appeal on this point has been pres.sed. 
 sonie observations may be adde<l. The rule 
 of Court 35, exiire.ssly re«|uires. that the 
 motion to set aside an order pro confe.sso 
 and tile an answer, should be made on the 
 first day of the sitting of the Court ensuing 
 the order, after written notice, of ten days 
 before the sitting, of the propos^nl motion, 
 and that the defendant at the time of the 
 motion shall have filed, tiiat i.s. liave de- 
 posited with the Uegisler for tiling, or shall 
 then produce, a full and explicit answer or 
 plea. The mover in the present instance, was 
 
 131
 
 *330 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 faulty in all these particulars. He had not 
 given the prescribed notice of his motion ; he 
 did not make his motion on the first day of 
 the sitting, and he produced no answer with 
 a jurat at the time of his motion. To speak 
 of his right to file an answer under such 
 circumstances, is idle talk. It may he, that 
 upon affidavit, that he was prevented from 
 coming within the terms of the rule by acci- 
 dent, mistake or surprise, the Court might 
 have placed him in the same position as if 
 he had made the motion on the first day of 
 the sitting, after notice ; but no such affida- 
 vit was made. If he had given the required 
 notice, and made his motion on the first 
 day of the term, still by the rule referred 
 to, he mu.st "submit to any further condi- 
 tions tli^ Court may impose." An appellate 
 tribunal should overrule an exercise of ju- 
 dicial discretion by a Judge, in the first in- 
 stance, only in case of gross abuse of dis- 
 cretion. In this case, we think the dis- 
 cretion was judiciously exercised; if indeed, 
 the Chancellor had any discretion to over- 
 rule the resistance to an irregular motion. 
 The condition insisted upon by the counsel 
 of the plaintiff to the motion proposed, that 
 the plaintiff should not be at the expcmse 
 of producing again at the trial, witnesses 
 examined before the Master, even if irregu- 
 larly examined, although the defendant 
 might produce them, and treat them as plain- 
 tiff's witnesses, was altogether reasonable. 
 The Court, in admitting the reasonableness 
 of this condition, determined nothing as to 
 the competency or effect of this testimony, 
 which was then unheard. It turned out, that 
 at the hearing, the Chancellor placed no 
 
 *331 
 ♦reliance whatever upon this testimony, most 
 of it being incompetent, and all of it insuffi- 
 cient. At the hearing, the counsel of the 
 plaintiff repeated the offer to allow the de- 
 fendant, although he was only entitled by 
 the rule of Court, to take advantage of any 
 matter which would have been good cause 
 of demurrer, to offer any evidence whatso- 
 ever ; but he offered no evidence. The de- 
 fendant suffered no detriment from not fil- 
 ing the answer, for we, perceive, upon perus- 
 ing it, that it contains nothing in bar of the 
 suit, and is merely argumentative. If au- 
 thority be needed for the ruling of the Chan- 
 cellor, it may be found in Foote v. Van 
 Ranst, 1 Hill Eq. 1S5, where the analogous 
 question as to the time of filing exceptions 
 under the 26th rule, is explicitly determined. 
 It is worthy of remark in this case, that 
 while the appellant complains of departure 
 from the regular procedure of the Court, 
 he directly infringes the 53d rule of the 
 Court in the mode of stating his complaint 
 in this appeal, inasmuch as his brief does 
 not contain the whole decree appealed from, 
 nor the report of the Chancellor on the 
 grounds of appeal. It is also curious, that, 
 while he vehemently resists the introduction 
 of testimony, irregular in the single iJur- 
 
 132 
 
 [ ticular that notice of the examination of the 
 witnesses was not given to him, he treats as 
 matter of right his motion to set aside the 
 order pro coufesso, although notice of that 
 motion to the adverse party, expressly re- 
 quix'ed, was not given. 
 
 The case was heard on the merits, on the 
 5 and 8 of March, 1852; and at the hearing, 
 the defendant was permitted to offer any evi- 
 dence in his possession, and to argue fully 
 the whole case. The matter decided, in- 
 volved in this appeal, is upon the construc- 
 tion of the following clauses of the will of 
 the testatrix: "Item. I give absolutely to 
 my son. Dr. G. L. Elliott, to him and his 
 assigns forever, all that lot of land, with 
 the dwelling house, buildings, and the ap- 
 purtenances thereof, lying and being at the 
 corner of St. rhilip and George-streets, being 
 on St. Philip-street 151 1/^ feet, and on 
 George-street 57 feet ; also, that lot of land 
 
 *332 
 
 being and lying next to the aforesaid *lot, 
 fronting on George-street 57 feet, and 151^2 
 in depth." "Item. I give, devise and be- 
 queath all and singular the rest and residue 
 of my whole estate, real and personal, &c., 
 to my four children, Adelaide Gibbes, Bar- 
 nard S. Elliott, Juliet G. Elliott, and Gibbes 
 L. Elliott, their heirs, executors and admin- 
 istrators and assigns, absolutely and ^orever, 
 equally, and share and share alike." Bar- 
 nard S. Elliott died after the death of tes- 
 tatrix, intestate, and without wife or issue, 
 leaving his brothers and sisters, the parties 
 to this suit, the distributees of his estate. In 
 the will of testatrix there is minute specifica- 
 tion of the property devised and bequeathed; 
 but much of her estate, including fifty-seven 
 slaves, is left to pass under the residuary 
 clause of her will. Upon a survey of the 
 lot owned by testatrix, at the corner of St. 
 Philip and George-streets, made by R. Q. 
 Pinckney, and supported by his testimony in 
 this case, it appears that the whole lot is 
 divisible into three parcels of 57 feet each, 
 fronting on George-street. It is conced- 
 ed, and the title deeds of the lot, if produced 
 on the defendant's motion, could have prov- 
 ed no more, that before the division prescrib- 
 ed in the will, the lots were described as 
 fronting on St. Philip-street. But it is un- 
 questionable, that the testatrix, in her will, 
 might establish and designate any division 
 of the lot new or old, among the objects of 
 her bounty, according to her caprice. It 
 further appears by Mr. Pinckney 's survey, 
 that a front of 57 feet on George-street, run- 
 ning in depth 151% feet on St. I'hilip-street, 
 on the corner of George and St. Philip- 
 streets, will not include by 16 feet the whole 
 of the buildings appurtenant to that parcel ; 
 but that two lots of 57 feet each, fronting 
 on George-street, will include all the build- 
 ings, and leave another uncovered lot of 
 57 feet front on George-street. There might 
 be some difficulty in settling the extent of the
 
 ABRAHAMS V. COLE 
 
 several devises to tl»e defeiulant, if these [ 
 devises were to two persons ; liut wlieii we j 
 find that tw(» panels, includiii}; all the build- 
 iiifis and appurtenances, are j;iven to one 
 person, the defendant, and that an aliiiuot 
 parcel is left out of the devise, we are re- 
 lieved from the necessity of determining 
 
 »333 
 between the devises of tlie separate ♦parcels. 
 It is manifest, however, from this separation 
 of parcels in tiie devise to the defendant, 
 that the testatrix had made, or contemplated, 
 a division of this lot, differing; from the 
 original state of the suliject when conveyed 
 to her. 
 
 It is argued, that tiie devise to the defend- 
 ant must carry the whole lot. inasmuch as 
 the terms of it, otherwise large enough, 
 are restrictt'd only in reference to contents; 
 course and distance being the feeblest means 
 of location. It is oitvious. however, that if 
 testatrix inteiidiHl to give the whole of this 
 IJroperty to defendant, there was no need 
 of any divisiou into parcels, and that her 
 purpo.se would be simply and naturally ex- 
 pressed in a single clause describing the 
 whole. In deterndning the location of a sub- 
 ject granted or devised, course and distance 
 have usually subordinate intluence in the 
 judgment, but they may be altsolutely con- 
 trolling. As if a grantor convey 100 acres 
 and no more, as a specific portion of a larg- 
 er lot. In the present instance, the testa- 
 trix, by her will, divides the lot into parcels 
 fronting on (Jeorge-street. and gives portions 
 to the defendant by exact and linuted meas- 
 urement in feet. The devise to the defend- 
 ant of the second parcel, as "fronting on 
 George-street ~u feet and 151 Vi feet in 
 depth," demonstrates the division by testa- 
 trix into parcels fronting on George-street, 
 and thus fixes the location, if it were other- 
 wise doubtful, of the first parcel devised. 
 Suppose the devise of this second parcel had 
 been to a «lifferent person than the defend- 
 ant, the devisee of the first parcel, it could 
 not be pretended that the defendant, inider 
 the construction of the first devise to him, 
 could skip over the .second parcel and claim 
 the third; and yet the construction of the 
 will nnist be the same, whether the devises 
 were to the same person or to di.stinct per- 
 sons. It is equally clear, that the devl.se 
 of the .second lot, so exactly described by 
 measurement, does not carry the third; 
 especially, when we consider that the re- 
 siduary clause of the will covered so large 
 a portion of the estate. 
 
 It is further urged, that this Court has 
 no jurisdiction to deterndne where Is the 
 freehold of the third part of this tract, In- 
 
 •334 
 asmuch *as tlu' defendant claims the whole, 
 and acknowledges no tenancy in connuon 
 with the other parties to tlie suit. Magna 
 Charta, and the Constitution of the State, 
 
 are pressed upon us. It is true, that thii> 
 Court has no authority, in general, to try 
 ipu'stions of title to lands, where the par- 
 ties claim by di.stinct titles; but in this 
 case, all the parties claim from the testa- 
 trix, acknowle<luing her title, and the whole 
 dispute is as tt) the construction of her will. 
 It has never lieen disputed, that this Court 
 has jurisdiction to determine rights of par- 
 ties in lands, dependent on the construction 
 of wills or other written instrument.s, and 
 where there was no fact to be .settled by a 
 jury of the vicinage. If the ca.se were in 
 the Court of Law. it would be adjudgeu, as 
 to doctrine, by the Judge, and not by the 
 jury. Hut it is not p»'rceived, that any ac- 
 tion could be maintaineil. in the Court of 
 Law, t<» try titles between tenants in com- 
 mon. This Court by its organization, has 
 not the breakwater against unpopularity af- 
 forded by a jury, and counsel with much 
 impunity from puldic opinion inveiirh against 
 usurpation and exceeding of jurisdiction by 
 Chancellors; but we must endeavor, so long 
 as the polity of the State continues the ex- 
 isting judicial establishment, to admiidster 
 the jurisdiction confided to us. without bias 
 from obloquy. 
 
 It is ordered and decreed, that the decree 
 be affirmed, and the appeal be disniis.sed. 
 
 JOHNSTON, DUNKIN and DARGAN, CC, 
 
 concurred. 
 
 Decree affirmed. 
 
 5 Rich. Eq. 'ass 
 
 ♦ALEXANDER II. ABRAHAMS v. JAMES 
 P. COLE and Others. 
 
 (Cliarloston. Jan. Term, 1853.) 
 
 [Injunction ®=>44.] 
 
 Where, pnidiiig suit against him, a di'litor 
 removed with his property (slaves* beyond tho 
 limits of the State, and after recovery of judg- 
 ment, and aft<r plaintilTs execution had lost 
 its active energy, tlie slaves were bmuglit back 
 into tlie State:— //(/(/. tliat plaintiff could sus- 
 tain a 1)111 to prevent the renioviil of the slaves 
 until lie could revive his execution. 
 
 I Ed. Note. — For other cases, see Injunction, 
 Cent. Dig. S 1>- : Dec. Dig. C=44.J 
 
 [Fraudulent Conrciianccs C=--<>.] 
 
 When a jiost-nuptial marriage settlement is 
 void, as to creditors, for want of registration, 
 a creilitfir, seeking satisfaction out of tiie prop- 
 erty, may jiroceed as if no siicii deed existed. 
 
 I Ed. Note.— Eor other ca.s«'«. see Fraudulent 
 Convevauees, Cent. Dig. S U5S; Dec. Dig. ®=» 
 'JliC.l 
 
 Before Johnston, Ch.. at Charlest<m, 
 •March. 1S5_'. 
 
 Joseph E. Cole, then a resident of Beau- 
 fort District, executi'd, .March L', is.".l*. a post- 
 nuptial marriage setthMueiit. by widch he 
 conveyed to Thomas Talbird, the elder, his 
 distributive .share of his father's estate, (aft- 
 erwards ascertaine<l to consist of negroes.) 
 
 C=>For other cases see same topic and KEY-NU.MbEH In aU Key-Numbered Uluesis aad Indexes 
 
 133
 
 *335 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 in trust, "for his wife and lier children, 
 should there be any, to be equally divided at 
 liis death" — reserving to himself "the riglit 
 to the income, or to the possession, the one or 
 the other, during his natural life." This 
 deed was recorded, May T, 1832, in the 
 Register's office for Beaufort, but was never 
 recorded in the Secretary of State's office. 
 Tn November, 1836, the plaintiff filed a bill 
 in the Court of Equity for Beaufort, against 
 Joseph E. Cole, for dissolution of a copart- 
 nership then existing between them, and for 
 account; and in May, 1841, obtained a de- 
 cree against him for $3,000, besides interest 
 and costs. Execution upon the decree was 
 lodged, May 28, 1841. Pending the proceed- 
 ings upon plaintiff's bill — to wit, in 1830 or 
 1837 — Joseph E. Cole removed, with the ne- 
 groes embraced in the settlement of 1832, to 
 Alabama, where he died, June 10, 1841. The 
 negroes were not returned by his administra- 
 tor, as part of his estate, but were removed, 
 shortly after his death, to Texas, by James 
 P. Cole, who acted as the agent of the trus- 
 tee, who resided in Beaufort. The estate of 
 Joseph E. Cole was declared to be insolvent, 
 and the plaintiff received froin the adminis- 
 trator in Alabama about $1,300, his ratable 
 share of tlie assets. 
 
 *336 
 
 *In 1843, the trustee, Thomas Talbird, the 
 elder, died, and his son and executor, Thom- 
 as Talbird, the younger, assumed to act as 
 trustee. At the deatli of Joseph E. Cole, tlie 
 cestui que trusts, under the settlement, were 
 his two infant children — his wife liaving pre- 
 deceased him. Their residence was in Beau- 
 fort. In September, 1848, the negroes were 
 sent by James P. Cole to South-Carolina, and 
 they were hired out in Charleston by Ed- 
 mund R. and Joseph B. Cheesborough, tlie 
 agents of the trustee, Thomas Talbird, the 
 younger. 
 
 In January, 1851, the plaintiff", having dis- 
 covered that the negroes were in Ciiarleston, 
 induced his friend, Jacob Cohen, to apply 
 for letters of administration on the estate of 
 Joseph E. Cole, and, as his execution had 
 lost its active energy, he filed this bill 
 against James P. Cole, Thomas Talbird, the 
 lyounger, and Edmund R. and Joseph B. 
 Cheesborough, for account ; for an injunc- 
 tion to restrain defendants from removing or 
 selling tlie negroes ; and for general relief. 
 The bill was afterwards amended, by making 
 tlie two infant children of Joseph E. Cole, 
 and Jacob Cohen, who, in the mean time, 
 had become his administrator, parties. 
 
 Johnston, Ch. It is unnecessary to make 
 a statement of this case. The whole case is 
 set forth in the pleadings and evidence in 
 writing. I shall proceed directly to the de- 
 livery of the judgment of the Court. 
 
 There is strong ground to infer, from the 
 testimony of William Barinwell, that tlie 
 deed was executed by Joseph E. Cole while 
 134 
 
 he was deeply indebted. But there is no 
 necessity to inquire into the existeu'-e of that 
 fact, or, if it existed, iiow far it tended to 
 vitiate the deed, as against the plaintiff", 
 Abrahams. It is sufficient that the deed is 
 a marriage settlement, according to the case 
 of Sibely v. Tutt, (IMcM. Eq. 320,) and as 
 such void, as against creditors, for the want 
 of a schedule, and particularly for the want 
 of registration, as required by the statute of 
 1823. (6 Stat. 213, 482.) 
 *337 
 
 *It is said, however, that the plaintiff is 
 barred of the remedy he seeks, because he did 
 not proceed, within the statutory period, to 
 set the deed aside. 
 
 It may admit of doubt whether he is bar- 
 red, even if he were now seeking a decree to 
 cancel this instrument. The statute of limi- 
 tations is a bar only in the forums of this 
 State. It cannot run, unless the party has an 
 opportunity for an eft'ectual proceeding in 
 our own Courts. It may be doubted whether 
 the absence of James P. Cole, who was in cus- 
 tody of the slaves in foreign parts, did not 
 preclude an eft"eetual proceeding. The pres- 
 ence of Talbird, the trustee, in the State, was 
 not of itself sufficient to sustain a bill to set 
 aside the deed. It would have been neces- 
 sary for the plaintiff to bring before the 
 Court both parties to the deed — both the 
 grantor and the grantee. But the grantor 
 was dead, and, until lately, had no personal 
 representative within the jurisdiction. Could 
 the statute run until Cohen took out letters"? 
 The statute does not run when the suit is to 
 bear against an individual who is dead, until 
 there is a representative to be sued ; and I 
 suppose, that when the suit must necessarily 
 embrace a deceased person, as one of several 
 defendants, the statute is equally inoperative, 
 until a representative of that individual ex- 
 ists. 
 
 But if a suit for the purpose of cancelling 
 the deed would be barred, does it necessarily 
 follow, if the plaintiff" has another remedy, 
 that that remedy is also barred? The con- 
 trary would seem to be reasonable, and not 
 without authority. Cholmondeley v. Clinton, 
 2 Meriv. 201. 
 
 The statute of 1S23 makes the conveyance 
 absolutely void, as against creditors. But, 
 says Chancellor Harper, in Fripp v. Talbird, 
 (1 Hill, Eq. 143,) "when it is said that a deed, 
 good between the parties, is void as to credi- 
 tors, there is, perhaps, a want of exact pre- 
 cision in the language. They may treat it as 
 void. They are not compelled to institute 
 any legal proceedings to avoid it, but may 
 seize the property as if there were no deed. 
 But. until they do seize the property, the deed 
 I'emains perfectly good." 
 *338 
 
 *It is clear, that no length of possession of 
 the negroes, out of the State, would have any 
 eff'ect as against the plaintift"s fi. fa. When- 
 ever they were brought within its limits, the
 
 AllUAHAMS V. CUI.E 
 
 *340 
 
 lien of the execution attached upon theiu, as' 
 was Ions; ago decided iu one of our rei)orted 
 law cases. I 
 
 If the phiintilT's execution had iteen levi- : 
 able, VIS well as liindinj;, when he discoveretl [ 
 the ne^'i-oes. wliich had returned in Sept em- , 
 her. 1N4S. lie mi;.'lit have levied nii them. Hut | 
 when he found out that tlie ne;;roes were' 
 here, his exec-ution had lost its active energy. I 
 His hill was tiled to prevent tlieir lieins 
 eloijiued, (in suhstance. to preserve the prop- 
 erty,) until he could renew his H. fa. 
 
 It is proper ti> reniarU. (init in one of our 
 cases, something,' is said apimrently eontra- 
 dictory to Chancellor Harper's assertion of a 
 creditor's rijrht to avoid a trust deed hy levy- 
 ing on tlie iirojierty. I cannot thiidv, how- 
 ever, that though a creditor he obliged to 
 forego a direct levy, and be obliged to come 
 here to have the benetit of a lien land of a ] 
 levy, that, tlu'refore. we are to divest him of, 
 all the advantages he would liiive had from 
 his execution, if he had levied it. Our inter-' 
 ference with his legal right should not |>rejn-| 
 dice him, but we slionbl allow him the benetit I 
 of all the rights he would have had, hail we j 
 not interfered. Our interposition is to pro- ] 
 tect the projierty of cestui que tnists. but not I 
 to fnistrate the just rights, or frustrate the] 
 remedies, of creditors. 
 
 So much upon the merits of the case. As 
 to .Tames P. Cole, he has not been i)roperly 
 made a party. He is not within the jurisdic- 
 tion, nor is he interested in or chargeable 
 with the custody of the negroes since they 
 came here. He has no agent here, nor has be 
 had any agency In the suit. It is therefore 
 ordered, that the bill be disnnssed. as to him. 
 
 It is decreed, that the slaves (except Maria, 
 to whom the plaintiff has made out no case) 
 lie delivered up. to be sold, in satisfaction of 
 the i>laintiff' s debt, referred to in the bill, and 
 of the costs in this c;ise. 
 
 If the plaintiff desires an account of hire, 
 ♦ 339 
 let him go before *one of the Masters: I sup- 
 l)ose he will be entitled to the balance of hire 
 unexiieiided by the trustee. Hut I reserve 
 the point, and leave it to be made before the 
 Master, and so come up upon exceptions to 
 the Master's report. 
 
 The defendants appealed on the following 
 grounds: 
 
 1. Hecause his Honor ought to have de- 
 creed upon the case made by the pleadings 
 and evidence, that the defendants had nv- 
 (luired a right by possession to the negroes 
 named in the bill; and that they were no 
 longer subject to the debts of .Toseph K. Cole. 
 
 li. Hecause, although there was no adndn- 
 i.stration on the estate of .loseph 10. Cole, in 
 this State, until after the tiling of the com- 
 plainant's bill, yet such administr.ition was 
 not neces.sary to give to the defendants' pos- 
 session of the said negroes an adverse char- 
 acter; but necessary only to enabh- the com- 
 plainant to show that his decree had not been 
 satisfied, and to revive it ; and it was there- 
 
 fore his duty to cause adndulstration to be 
 taken out. 
 
 .'{. Hecause the trustee, llionjas Talblrd. 
 sen., during his life, and his ex»HUtor after 
 his death, as well as James V. Cole, the ad- 
 ndidstrator in Alabama, had each, by his 
 pos.ses.sion of the negroes. mad«' himself liable 
 as executor <le son tort, of .loseph K. Ctile, 
 and might have l»e«»n sued, in that chanu'ter. 
 in this .State, notwithstanding the pro|»erty 
 was out of the State. 
 
 4. H«'<'ause the rluht of the ci^mplainant to 
 revive his decree, and. under his execution, t<» 
 levy on the property of .Joseph K. Cule. Is not 
 deide<l ; but it Is submitted that the negroes 
 in dispute, having been carrUnl out of the 
 State by .loseph K. Cole. l>efore the ••omplain- 
 ant obtained his decree, were never subject to 
 the lien of the exei-ution; and when bnaight 
 back, eiirht years after the death of the said 
 .loseph K. Cole, the infant (h'femlants had. by 
 the possession of their trustees, even thou^rh 
 it ndght have conum-nced in fraud, acipiln-d 
 a statutory title, as au'Jiinst all the world. 
 •340 
 
 *.">. Hecause it is not i>refeniled by the com- 
 plainant that he was not apprised of the exe- 
 cution of the <lee<l by .Joseph K. <'nle. at the 
 time, or shortly after Its ex«H-ution; or that 
 he was not informed of ins removal with his 
 ))n)perty to Alabama, and of his death, at the 
 time it liappeiied. or that he was ignorant 
 that the truste*'. who held possession «>f the 
 negroes for the defendants, and the ch'fend- 
 ants themselves, were living in the town of 
 Heaufort, in- this State, at the <leath of the 
 said .Toseiih K. Ci>le. and so always ctmtinued 
 to live, without interruption. 
 
 When-fore. It is humbly submitted, tlnit 
 complainant ought to have file«l his bill, to 
 subject the spedtic property of .Joseph K. 
 Cole to the payment of the decr»^', within 
 four years after the dejith of the said .J<>s«'i>h 
 E. Cole. 
 
 6. Because, if the c<implainant has tne 
 right to subject the negroes in dispute to the 
 I)ayment of his decree, he <-ertainly has iu> 
 right to any accoinit of tlieir hire and waires 
 from the trustee; It is tiierefore submitted 
 that the decree is erroneous, in dlre«.tlut; such 
 account to be taken. 
 
 Trevllle. for appellants. 
 Campbell. ct»ntra. 
 
 The opinion of the Court was delivered by 
 
 .lollNSTdN. ( h. llien" is no mistaking 
 the i;ri>nnd ui»on whbh the d»'cree Is foundeil. 
 The bill is frameil with the sole object of sub- 
 jecting the negroes, which were brought into 
 tills State In 1S4S. to the lien of the plaintiff's 
 execution against .Joseph K. Cole. The plain- 
 tiff had (ibtained his Judgment ^igalnst hi.s 
 debtor, and hail hnlged his executicm; hut, 
 pending the suit, the iiroperty liad lu'en re- 
 move<l to Alabama, ami there was nothing 
 within the jurisdb-tlon out of whl«-h the mon- 
 ey could l>e made. When the proiterty was 
 
 135
 
 *340 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 brought back, in 1848, for the first time the 
 lien of the execution attached upon it, if it 
 was Joseph E. Cole's property ; but, as the 
 execution had lost its active energy, and the 
 
 *341 
 property was liable to be eloigned, *it was 
 necessary for the plaintiff to come here, to 
 prevent its removal, until he could renew his 
 execution according to the statute of 1827. 
 
 This is the whole case upon which the de- 
 cree is founded ; and it would be a very sim- 
 ple one, if tlie debtor had never alienated the 
 property. Independently of that circum- 
 stance, there could be no doubt the Court 
 would be bound to lend its aid for the pres- 
 ervation of the property, to answer to the 
 execution. 
 
 The property, however, had been alien- 
 ated; but the alienation was ineffectual, in- 
 asmuch as it was made by way of post-nup- 
 tial settlement, and the instrument had not 
 been duly registered. It was void against 
 the creditor, for want of registration. This 
 point being decided, the plaintiff" was entitled 
 to his decree, as if no such settlement had 
 been made. 
 
 It was not necessary to inquire whether 
 the plaintiff was barred of his remedy, to 
 set the conveyance aside: because, in fact, 
 he needed no such remedy. Nor did the bill 
 seek to set the instrument aside. All that 
 is said in the decree upon that subject, and 
 upon the subject of the parties necessary to 
 such a proceeding, and the operation of the 
 statute, as affecting that remedy, is merely 
 speculative ; and intended to meet arguments 
 made at the hearing; the counsel having 
 supposed that, in addition to the remedy 
 which his bill specifically prays, he might 
 have been entitled, under the general prayer, 
 to have the deed set aside and cancelled. 
 
 We are satisfied that the decree is right, 
 in aiding the plaintiff" to the lien of his exe- 
 cution ; which is the only point decided : 
 and it is ordered that the decree be affirmed, 
 and the appeal dismissed. 
 
 DUNKIN, DARGAN and WARDLAW, CC, 
 
 concurred. 
 
 Decree affirmed. 
 
 5 Rich. Eq. *342 
 
 *THE CHARLESTON INSURANCE AND 
 
 TRUST COMPANY v. ED^YxiRD 
 
 SEBRING and Othere. 
 
 (Charleston. Jan. Term, 1853.) 
 
 [Corporations <S=>320.] 
 
 Bill filed by a stockholder again.st the Presi- 
 dent and Directors of a banking corporation, to 
 compel them to re-transfer to the Bank certain 
 shares in the stock of the Bank, which the Bank 
 itself had owned, and which the defendants had 
 sold and purchased themselves, at less, it was 
 alleged, than the market value: — Held, that the 
 
 corporation .should have been made a party to 
 the bill. 
 
 fEd. Note. — For other cases, see Corporations, 
 Cent. Dig. S 1429; Dec. Dig. <S=332U.J 
 
 [Corporations <S=>1.] 
 
 [Cited in Ex parte Trustees of Greenville 
 Academies, 7 Rich. Eq. 481, to the point that 
 a corporation is a single artificial person and 
 has but one will, expressed by resolution of the 
 majority. 1 
 
 [Ed. Note. — For other cases, see Corporations, 
 Cent. Dig. §§ 1, 3-6; Dec. Dig. 0=»1.] 
 
 Before Dunkin, Ch., at Charleston, June^ 
 1851. 
 
 Dunkin, Ch. The State Bank is an institu- 
 tion with a capital of one million of dollars, 
 divided into ten thou^^and shares, of one 
 hundred dollars each. The complainants are 
 stockholders of this institution, to the extent 
 of two hinidred and ninety-four shares. The 
 allegations of the bill are, that the business 
 of the State Bank is transacted by a Presi- 
 dent and Directors — twelve Directors being 
 annually chosen by the stockholders, and the 
 President being selected by the Directors, 
 from their own body ; that, after the annual 
 election in July, 18.50, the Board con.sisted of 
 Edward Sebring, President, and James H. 
 Ladson, H. A. DeSaussure, George M. Coffin, 
 John E. Cay, H. S. Hayden, E. ^Y. Bancroft, 
 Geo. Gibl)on, M. P. Matheson, S. P. Ripley, 
 Robt. Mure, and Thomas Trout ; that the 
 State Bank had been, some time previously, 
 the owners of two thousand three hundred 
 shares of their own stock — that, from vari- 
 ous causes, the stock of the State Bank had 
 depreciated from the par value, but that, in 
 July, 1850. it had become a desirable invest- 
 ment and the market value was above par; 
 that, at a meeting of the Board, held in 
 July, 1850, the President and Directors of the 
 said State Bank, or such of them as were 
 present at the meeting, and who were will- 
 ing to unite in the same, by a resolution 
 among themselves, did agree, that they 
 would, in certain proportions, determiuea by 
 and among themselves, become the purchas- 
 ers of the two thousand three hundred of 
 the shares of the stock held by the Bank, 
 
 *343 
 and that *it should be taken at .$100 per 
 share, or the par value of the same ; that 
 "the President and all the Directors assent- 
 ed to this sale to themselves, as individuals, 
 with the exception, so far as complainants 
 are Informed, of James H. Ladson, George 
 M. Coffin, and H. A. DeSaussure, who, as 
 complainants are informed, were absent, or 
 declined to participate in the same" — that 
 the agreement has been carried into effect 
 by a transfer of the stock. The complain- 
 ants insist that the President and Directors 
 had no right to purchase for themselves, pri- 
 vately, the property of which they were 
 possessed as trustees for the stockholders, 
 and at less than the market value of the 
 stock. The prayer of the bill is, that the de- 
 
 136 
 
 ®==>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
 
 CHARLESTON INSURANCE AND TRUST CO. v. SEBRING 
 
 »n4> 
 
 femlants may answer as to tlie all»'^'e<l a^'ret'- ) 
 iiu'iit, «.V:c.. and which of them imnhaseil. ami 
 wliat numlier of shares each retelved. &c., 
 and "that the imrehases so made shall be 
 cancelled, and the President ami directors 
 .so purchasinf: he decreed to deliver hack to 
 tile State liank the shares so purchased by 
 them, and account for the dividends which 
 they have received; and. In ca.se the sluires 
 cannot be transferred back to the State 
 Bank, that the said Tresident and Directors 
 may be decreed to account to the complain- 
 ants, for their interest or jiroiiortion in the 
 shares so purchased, and he »lecreed to pay 
 to the complainants such tlamajies as they 
 have sustained h.v reason of the premises," 
 and for jieneral relief. Suliinena is also 
 prayed ay:ainst all the individuals hereinbe- 
 fore named — hut no process Is prayed auainst 
 the State liank. nor is that Institution, in 
 any way, a party to the procccdint;s. 
 
 The bill was tiled on the .'M F»'l»ruary. is.')l. 
 James II. I.adson. (Jeor;;e M. Cotlin, and II. 
 A. DeSaussure have demurred to the bill. It 
 is not su;r«ested that ibey were present at 
 the nieetinj; in July ; but. on the contrary, It 
 is set forth that they neither assented to the 
 sale nor particiiiated in it, and no relief is 
 souRht against either of them. A discovery 
 is only sou^rht from those who were iiarties 
 to the ajireement, or particii)ated in the re- 
 sult of the sale. The demurrer must there- 
 fore be sustained. 
 
 *344 
 
 ♦The defendants, Robert Mure and E. W. 
 Bancroft, were absent when they were elect- 
 ed, in July, isno — had no knowledge, or con- 
 cern, in relation to the transactions about 
 which complaint is made and did not re- 
 turn to Charleston until .some time after thej ! 
 had been consunuuatcd. As to these defend- | 
 ants, the bill must stand disnnssed. I 
 
 The other defendants have answered fully. | 
 The principal answer, of Edward Sebrinj,' ' 
 and others, submits that, as the prayer is, ^ 
 that "the defendants should be decreed to de- 
 liver back to the State Hank the shares i)ur- 
 chased, and account for the dividends re- 
 ceived," that institution should be made a 
 party to the proceedings, and they insist on 
 the want of such party, in the same maimer 
 as if they had demurred for that <au,se. This 
 presents a preliminary inquiry for adjudica- 
 tion. The bill assumes that the defentlants 
 were agents of the State Hank, for the sale 
 of the two thousand three hundred shares 
 which belonged to the institution, and that 
 the transfer or sale, which they had made, 
 was a breach of tlu'ir duty, and should In- 
 set aside and cancelled, and the stock be re- 
 transferred to the State Hank. The com- 
 plainants proceed on the well established 
 prin<iple, that a sale of this character is 
 voidable, at the instance of the |)rincipal, or 
 cestui (lue trust. On the other hand. It <an- 
 iiot be doubted that It is at the option of the 
 princliial to acquiesce in the sale, as advan- 
 
 tageous to himself, or to set it aside. Nor 
 Is it less clear, that the principal, or cestui 
 que trust, in this case, is tlu* incorporated in- 
 stitution called the "State Hank." 
 
 The prayer of the bill is, (and could only 
 Im*,» that the defendants may re-transfer to 
 the State Hank: but this necessarily implies 
 a rescission of the contract, and that, conse- 
 quently, the State Hank should refund to the 
 defendants the jiar value of the stock, at 
 which It wais jiurcbased. The hnpiiry Is not, 
 whether this would be an advantageous ar- 
 rangement for the Institution; but can the 
 Court nuike such decree, or pro.secute such 
 hHjulry, in a proceinling to which the State 
 Hank is no party? It is true, the dllliculty 
 
 •346 
 lies deeper. The ."-Jtati' Hank 'Is composed of 
 the stockholders In that lnstit\ition. They 
 appoint their agents for ccmducting the busi- 
 ness of the Hank, and remove them at pleas- 
 ure. This is done by a majority of the stock- 
 holders, who have also the right to do any 
 act, within the limits of the charter, which 
 they may conceive beneticial to the institution. 
 A mint»rity may not concur, or may be dls- 
 satlstiitl. but. In the absence of fraud, collu- 
 sion, or other abuse, on the part of the stock- 
 holders, the will of the majority must be re- 
 garded as the act of the institution Itself. 
 See Foss v. Ilarbottle, 2 Hare, VM; Mozley 
 V. Alston, 1 I'bil. 71K). and Lord v. Copi>er 
 Miidng Conqiany, L! I'hll 740. 
 
 The (timplainants are merely .shareholders 
 In tlu' incorporation, and it is unhnportant, 
 in discussing their rights, whether they hold 
 one share or three hundred shares. Nor Is 
 it imi)ortant whether the subject matter of 
 comi>laint was stock improperly sold, and jiur- 
 chased by the I'resident. «tr a banking hou.se. 
 which had belonged to himsi'lf. and which he 
 had sold to the Institution. (Jenerally. none 
 but toe itank could inqu-acb the transaction, 
 and although an individual stockhobler may, 
 perhaiis. present a case which would «'ntltle 
 him to a hearing, the incorporated institution, 
 as smb. must be a party to the proce«'dlngs. 
 In anticipation of the possible jutlgment of 
 the Court upon this objectiiMi of the defen<l- 
 ants, a motion was subndtted by the com- 
 plainants, that. In that event, they should have 
 leave to amend th«' pleadings, by nuiking the 
 Slate Hank a party thereto. As the objec- 
 tion was not taken at the threshold, and this 
 Is, necessarily, very much a matter of «ll.scre- 
 tion. the Court is unwilling to dejtrlve the 
 conqilainants of any advantage which sm-h 
 amendment nniy be sujiiiosctl to afTord them. 
 
 .\s to the defendants, James H. Lad.son. 
 (u'orgt' -M. Collin, and II. .\. I»eSaussnre,.and 
 also, as to tlu' defendants. Robert .Mure and 
 E. W. Bancroft, it is ordered and difretnl 
 that the bill be dismissed. 
 
 It Is further ordere«l, that the complain- 
 ants have leave to amend their pleadings, 
 by making the State Bank a party thereto, 
 in such maimer as they may be advLsed. 
 
 137
 
 *346 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 *346 I 
 
 *The complainants appealed on the grounds: 
 
 1. Because tbe case made in the bill, and 
 supported bj^ the testimony, entitled the com- 
 plainants to relief. 
 
 2. Because it was not necessary, for the 
 purposes of this suit that the State Bank 
 should be made a party. 
 
 3. Because, if the State Bank, in this case, 
 is a necessary party, the rights of individual 
 stockholders of the Bank are to be determin- 
 ed, not by the established laws of the land, 
 but the power of a majority: and while such 
 a rule may be recognized in relation to the 
 ordinary matters of the Bank, it cannot be 
 applied to a case where the Directors acted 
 in opposition to the established principles 
 which govern all who act in a tiduciary ca- 
 pacity, and which had no proper connection 
 with their duties as officers of the State 
 Bank, but was, in fact, an admitted violation 
 of the same. 
 
 4. Because the Chancellor erred in dis- 
 missing the bill, as to the tive defendants, 
 Messrs. DeSaussure, Ladson, Coffin, Mure 
 and Bancroft. 
 
 5. Because the decree is unsupported by 
 the evidence and the law applicable to the 
 case. 
 
 Magrath, McCready, for appellants. 
 DeSaussure, Petigru, Memminger, contra. 
 
 The opinion of the Court was delivered by 
 
 DAKGAN, Ch. It is necessary to add but 
 little to what has been said in the Circuit 
 decree. 
 
 A corporation is an artiticial person, the 
 creature of the law, and manifesting its ex- 
 istence only by the exercise, after a prescrib- 
 ed form, of certain franchises and functions 
 given to it by law. Or, as defined by Chief 
 Justice Marshall, in the case of Dartmoutli 
 College V. Woodward. 4 Wheat. 6;!(> [4 L. Ed. 
 629], it "is an artificial being, invisible, in- 
 tangible, and existing only in contemplation 
 of law." In the Providence Bank v. Billings, 
 4 Peters, 514 [7 L. Ed. 939], it is said by the 
 same eminent Judge, that, "the great object 
 of an incorporation is to bestow the charac- 
 
 *347 
 ter and *properties of individuality on a 
 collective and changing body of men." 
 
 A corporation aggregate is but one person, 
 having the same unity in its corporate charac- 
 ter and existence as a natural person. How- 
 ever numerous they may be, the will and in- 
 dividuality of the corporators are lost or 
 merged in the will and individuality of the 
 whole. A corporation can have but one 
 will, and that will can only be manifested by 
 the potential and uncontrollable voice of the 
 majority. It has, and can have, from the 
 nature of things, no other mode of action. 
 
 As long, therefore, as a corporation con- 
 tines itself, in the management of its affairs, 
 within the limits of its chartered powers, and 
 
 138 
 
 commits no fraud upon the rights of the in- 
 dividual corporators, (facts which are not 
 alleged in this case,) it is idle, and it is in- 
 consistent, to talk of the rights of individual 
 members of the corporation, as distinct from, 
 or opposed to those of the corporation itself. 
 In ca,se that the corporation should commit 
 a fraud upon the rights of individual mem- 
 bers, the Court of Equity would take cog- 
 nizance of the transaction, and would afford 
 its protection and relief, as in any other case 
 of fraud ; and upon the principles applicable 
 to frauds generally. 
 
 The Directors of an incorporated company 
 are not technically trustees: they are the 
 agents of the company, and, so far as the 
 doctrines which prevail in this Court, in ref- 
 erence to trusts, are applicable to the rela- 
 tions of principal and agent, the same would 
 be enforced against the Directors, in favor of 
 the Corporation. I am at a loss to perceive 
 any difference as to the duties and liabilities 
 of the agents of a natural person, and the 
 agents of that artificial or political body, 
 known as a corporation. 
 
 Tlie Directors are the agents, not of the 
 natural persons, or individual members com- 
 posing it, but of the corporation: that is to 
 say. of all the corporators, in their associated 
 and corporate character. If the agents com- 
 mit default — if they embezzle, become 'ndebt- 
 ed, or liable for mismanagement, or neglect — 
 no action would lie in this, or any other 
 
 *348 
 Court, in behalf of indi*vidual corporators, 
 for their supposed aliquot part of the amount 
 embezzled, or of the damages resulting from 
 the default. But such defaulting agents 
 would be responsible to their principal alone, 
 which is the corporation. And the action 
 must be in the name of the corporation. 
 
 When, in this case, the Directors of the 
 State Bank, having in charge the shares of 
 stock belonging to the company, with author- 
 ity to sell, sold the said shares to themselves, 
 at less than their marketable value, I do not 
 hesitate to say that they did a very improper 
 act. It was a breach of trust. I do not wish 
 to be understood to say that it was a wilfully 
 corrupt breach of trust. Yet it was a dev- 
 astavit, for which this Court would make 
 them liable. The same principles would be 
 enforced against them, as would be enforced 
 against trustees, under like cii'cumstances. 
 They would be compelled to re-assign the 
 stock, or to account for the profits which they 
 had realized in the tx'ansaction, at the option 
 of the aggrieved party. 
 
 But who is the aggrieved party? Who is 
 the principal? These questions are already 
 answered. A principal, who is a natural i)er- 
 son, might not choose to contend in law for 
 his exti-eme rights, against a defaulting 
 agent. Just so of a corporation. The conduct 
 of the defaulter might be looked upon with 
 a lenient eye, on account of past fidelity and 
 services ; or he may have made restitution,
 
 FOX V. FORD 
 
 »8ol 
 
 or a coniproniiso ; or the amount to be re- 
 covered liy action uii},'lit not l>e thoU},'ht worth 
 the cost and tronlile of the pursuit. Certain- 
 ly, a '-orporation has tlie ]»o\vcr of exercising 
 its discretion in sucli matters — and the ex- 
 ercise of its discretion would lie conclnslve 
 upon the Individual coritorators. Can it 
 be doubted that the corporation would have 
 the rij:ht to conllrm to tin* Directors the il- 
 lepil sale of the stock, which they made to 
 themselves. 
 
 For a small constituent of this bankluR 
 corporation to brliif; their suit against the 
 agents of the corporation, without making 
 the latter a party, for tludr supiK)scd share 
 of the loss which resulted from the ille;:al 
 sale of stock shares. Is not warranted by i»rin- 
 'iple or authority. The Cin-ult decree, wlth- 
 
 *349 
 out adjudj,'*inf; the case upon Its merits, or- 
 ders the corporation, as the State Hank of 
 South-Carolina, to be made a party. This 
 Court is satisfied with the decree. The ap- 
 peal is dismissed, and the Circuit decree is 
 atlirmcd. 
 
 Id.NKIX and WAKl >I.A\V, r(\, concurred. 
 
 .KULXSTON. Cli., alisent at the hearing. 
 Appeal dismissed. 
 
 5 Rich. Eq. 349 
 
 WILLIAM FOX and Wifr, . t al. v. MORTON 
 FORI), et al. 
 
 (Charleston. Jan. Term, 1853.) 
 
 |/'>7»//(/ <2=>."{7S.l 
 
 Wiicrr, in cases of ddwer. injiuictioii to stay 
 waste, or of partition, tlie litlf to the bind is 
 involved, tiie approved practice of tlie Court is, 
 not to determine upon the title, but to leave, 
 or send, tluit matter to a jury, by directing 
 an action at law, or oideiinj; an issue. 
 [Ed. Note.— Cited in 1 )u Tout v. Du Bos, oo 
 
 s. c. ;«)!». 11 s. E. iot;;. 
 
 For other cases, see Equity. Cent. Dig. § T'JD; 
 Dec. Dig. €=378.] 
 
 Before Dargan, Ch., at Colleton. February, 
 1852. 
 
 Bill to set aside a deed of gift of two 
 slaves and a tract of land, and for partition. 
 His Honor sustained the prayer of the Idll, 
 and Christian Rumph, one of the defeudauts, 
 appealed. 
 
 Carii. for appellant. 
 Tracy, contra. 
 
 The opinion of the Court was delivered by 
 
 DCNKIX, Ch. The principal obji'ct of this 
 MM was to set aside f<ir fraud, a de»'tl of gift of 
 a tract of land and two slaves, from Mary 
 Fofd. deceased, to her son. (one of the defend- 
 
 ants.) Morton Ford. The deed bears date No- 
 vember 4, 1848, aud was recorded iu the office- 
 
 •350 
 of tlie Regl.ster of Mesne Conveyances 'for 
 Colleton district, on the ITth of February. 
 lN4'.t. Mary Ford «lhHl during the month of 
 Feliruary, ls41t. Her son. Morton Ftu-d. re- 
 mained In possession until 4th Novend»er, 
 lsr»(). when the land was sold as his projK'rty 
 by the sheriff of Colleton dlstrut. under exe- 
 cutions against him. and iiurchaseil by the 
 defendant. Christian Rumph. who holds the 
 conveyance from the sheriff. The complain- 
 ants are two of the heirs at law of Mary 
 F<»rd. deceased, antl tl>ey pray that the (htnl 
 from Mary Ford may Ik- set asUle; that the 
 two slaves nniy be hebl part of her estate, 
 and that a writ of partition naty issue to 
 divide the lanil. The bill Is taken pro «on- 
 fesso against Morton Ford. But the other 
 defendant. C. Rumph, denies all knowletlge 
 of the fraud. If any existed, or any notice of 
 complainants' claim, and Insl.sts on his ex- 
 clusive right to the buul under tlie purcliase 
 from tlie sheriff. 
 
 By the decree of the Circuit Court, th»» 
 deed was set aside, the defendant. .Mtirton 
 Ford. <irdered. to account for the slaves and 
 their hire; and a writ of partition of the 
 land was dlrect«'d to Issue. From this de- 
 cree, the defen<lant, Christian Rumph, alone- 
 has appealed. 
 
 In considering the case of this defen«lant, 
 the Court deems It uiuiecessary to review the 
 evidence, or to express any opinion upon the 
 Inference deduced from It. The defendant Is 
 In possession of a tra<t of land. t<» which he 
 claims to holil an exchislve title as his free- 
 hold. No tidiu'iary relation exists, or is- 
 charged to exist, between the c<Mnplaiiiant» 
 and himself. As no bill will lie for the po.s- 
 sesslon of lanils. so where the Court has ju- 
 risdiction of the subject matter, as In cases 
 of dower, of Injunction to stay waste, or of 
 partition, and the title to the land Is in- 
 volved, it is the ai>proved practice of this 
 Court not to determine upon the title, but to 
 leave or send that matter to a jury, liy di- 
 recting an action at law, or ordering an is- 
 sue. 1 Story. Ivi. § "•_'. The suliject is fully 
 discussed by Sir William (Jrant. In .Tones v. 
 .Tones. 3 Merlv. HJl. 
 
 It Is orderetl and decreed, that an issue at 
 law. In the nature of an action to try title, be 
 
 •361 
 made tip between the complainants 'and the 
 defendant. <'lirlstlan Rumph. In whbh the 
 complalniints shall be the plaint lITs. and the 
 del'endai\t. C. Rumph. shall admit ouster; 
 that tbe issue be tried In the Court of C«>iu- 
 mon I'leas for Cidb'ton district, and that the 
 presiding .Tmlge 1h» resiH'ctfully re<|uested to 
 certify the venilct to tbe Court of Chancery 
 for said district, at the sittings next there- 
 after: ami it is finally ord«'re»l and de<-reed, 
 that so much of the Circuit decree as affi'cts 
 
 ©=jFur other cases set- same topic aud KKV-.VLl.MUliK iu all Key -Numbered Digests and ludexei 
 
 13»
 
 *351 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 the claim of the defendant, Christian Rumph, 
 be set aside. 
 
 DARGAN and WARDLAW, CC, concur- 
 red, 
 
 JOHNSTON, Ch., absent at the hearing. 
 Issue ordered. 
 
 5 Rich. Eq. 351 
 
 AUSTIN PASLAY and Others v. ROBERT 
 MARTIN. 
 
 (Charleston. Jan. Term, 1853.) 
 
 [Equity <g=>378; Jury <@=>13.] 
 
 On a bill for the specific delivery of slaves, 
 the Court is not bound to refer the question 
 of title, where it is disputed, to the Law Court: 
 It can determine the question of title itself. 
 
 [Ed. Note.— Cited in Leaphart v. Leaphart, 1 
 S. O. 208. 
 
 For other cases, see Equity, Cent. Dig. § 799 ; 
 Dec. Dig. <S=»37S; Jury, Cent. Dig. § 42; Dec. 
 Dig. <g=»13.] 
 
 Before Johnston, Ch., at Charleston, Feb- 
 ruary, 1852. 
 
 This cause came up for a hearing on the 
 bill, answer and report of Master Tupper, 
 with the testimony, as taken by him. 
 
 The following is a statement of the facts: 
 
 On December 2, 1837, Daniel Cook convey- 
 ed, by bill of sale, five negro slaves, to wit : 
 Randall, Joe, Jerry, Ellen and Elsey, to Jesse 
 R. Gary, in consideration of the sum of $4,- 
 237. At the same time an agreement in 
 writing was made between Cook and Gary, 
 by which the negroes were hired to Cook at 
 the rate of fifty dollars per month. 
 
 Gary afterwards, to wit, in February, 1838, 
 *352 
 conveyed the *negroes to Austin Paslay, for 
 the sum of $4,200. For the said amount, 
 Austin Paslay gave his note. Oil this note 
 there were two credits, one on May 10, 1838, 
 for $1,200, and one on August 22, 1839, for 
 $332.34. Subsequently the note passed into 
 the possession of Paslay, and was exhibited 
 by him in evidence. 
 
 On February 7, 1838, Austin Paslay, in 
 consideration of five dollars, and his love 
 and affection for his sister, Hannah H. Cook, 
 and her children, sold and delivered the said 
 negroes to Elizabeth Bird, her executors, ad- 
 ministrators and assigns, to have and to hold 
 the said negroes upon the following trusts, 
 to wit: "to and for the use of Hannah H. 
 Cook, the wife of Daniel Cook, of Charleston, 
 and the heirs of her body now living : not 
 to be liable for the present or future debts of 
 the said Daniel Cook, or any other person, 
 during the minority of the said children of 
 Daniel and Hannah H. Cook ; and further 
 in trust, to permit and allow the said Han- 
 nah H. Cook and her children to enjoy the 
 use and services of the said slaves, subject, 
 however, to the aforesaid trusts during the 
 
 minority of each and every of the said chil- 
 dren." 
 
 In an ex parte case in the Court of Equity 
 for Charleston district, wherein the said Han- 
 nah H. Cook and her children were peti- 
 tioners, the original deed of trust was filed 
 on September 8, 1843. as an exhibit ; and it 
 still remained there, according to the certifi- 
 cate of the Register. Neither of the afore- 
 said bills of sale were recorded in the Secre- 
 tary of State's offit-e, and the trust deed was 
 not recorded there till September, 18.51. 
 
 The negroes were received by Mrs. Cook 
 and her children, according to the limitations 
 of the trust deed, and were hired out for 
 their benefit. The man Randall was general- 
 ly used as a cook at the Victoria Hotel, of 
 which Cook was the keeper, and where Cook, 
 and his wife and children, lived together. 
 
 Daniel Cook died before Hannah, his wife; 
 and the negro, Randall, continued to be em- 
 ployed at the hotel. Mrs. Cook died some 
 time in 18.50. and the negroes continued to 
 pay their wages to the complainants. 
 
 On September 20, 1851, Robert Martin, the 
 *353 
 defendant, caused *the negroes to be levied 
 on. and lodged in the jail of Charleston dis- 
 trict, claiming the property in them by virtue 
 of a bill of sale, executed by Daniel Cook, 
 on' the 27th of October, 1848, to John C. 
 Simons, for $1,000. This hill of sale was 
 recorded in the office of the Secretary of 
 State at Charleston, October 27, 1848, and by 
 the said Simons assigned to the defendant, 
 September 17, 1851. The defendant admitted 
 that he paid less than the maket value, and 
 alleged that he was induced to make the pur- 
 chase with a view to secure an old debt due 
 him by Daniel Cook, in his life time. 
 
 Two days after the defendant levied on 
 the negroes, to wit: on September 23, 1851, 
 the complainants filed their bill, having in 
 the meantime, as admitted by the defendant's 
 answer, demanded the negroes, praying a 
 specific delivery of the negroes, and an ac- 
 count of hire and expenses. 
 
 On January 15, 18-52. on motion of the 
 complainants' solicitor, and with the con- 
 sent of the defendant. Chancellor Wardlaw 
 granted an order for the sale of these ne- 
 groes, of which the following is the last 
 clause: "This order to be without prej- 
 udice to the rights of the parties, and upon 
 Wie express understanding that all further 
 litigation shall proceed, and lie determined, 
 as if the matter in litigation (precisely) were 
 the negroes in specie, and not money." 
 
 Johnston, Ch. The defendant urges that the 
 Court has lost jurisdiction of the cause, by 
 reason of the order of sale. The rule is too 
 well settled, to be now denied, that where 
 the Court has original jurisdiction, no sub- 
 sequent change in the nature of the property 
 will take it away. Th? vexations of a tedious 
 suit mav alienate the affections of the master 
 
 140 
 
 <©=»For other cases see same topic and KEY-NUMBEU in aU Key-Numbered Digests and Indexes
 
 DAXNER V. TRESCOT 
 
 •356 
 
 from his slave: humanity to tlii> slavt-. wiiu 
 has been unjustly imprisoiuHl. may frt'e the 
 master to consent to liis sale, in order to re- 
 lieve the slave. 
 
 The defendant insists, tliat tlie title to the 
 negroes should lie tried at law. Where this 
 Court has jurisdiction in cases of this nature, 
 it has plenary jurisdiction, and can decide 
 every (luestion, indudintj that of title. In 
 no case for the specific delivery of slave.s 
 
 •354 
 *that I know of, has the Court considered It- 
 self under the necessity of throwint; the trial 
 of title uiion the Court of Law; nor is there 
 a preci'dent for such a proceeding in the 
 :in:il(>;rous cases of practice. 
 
 Lssues are ordered on matters of fact, at 
 tlie discretion of the Chancellor, and to re- 
 lieve his mind: no party, in general, has a 
 right to demand them. In this ni.se, I have 
 no doubts, which would induce me to refer 
 the facts to a jury. 
 
 It is therefore ordered, that the M;ist»'r do 
 pay over to the heirs of the iiody of Hannah 
 H. Cook, living at the time of the deed from 
 Austin Taslay to Elizalieth Bird, trustee, the 
 funds arising from the sale of the said ne- 
 groes, under the order of Chancellor Ward- 
 law, dated lijth .January, is'ii'. share and 
 share alike, in the following manner, to wit: 
 
 1. To .Tames Robert Cook, one-tifth ; 
 
 2. To Mrs. Eliza Wood, one-fifth : 
 
 .3. To the children of Nuliilia lilewer, late 
 Cook, share and share alike, one-tifth : 
 
 4. To r)orothy Frances Nopie, one-tifth : 
 
 5. To Elizabeth A. Avery, late Cook, one- 
 fifth. 
 
 The complainant. Hannah H. Cook, was 
 born after the 7th of February, l.S.'^S. and is 
 not entitled under the deed. 
 
 And is further ordered, that the defendant 
 do account iipon reference before the said 
 Master, for the hire of tlie said slaves. Uan- 
 dall. .Terry and .Toe. from the time that he 
 had them levied on and conhned in the jail 
 of this district to the date of this dei-ree, and 
 for their l)oard and expenses while in jail, 
 which liave lieen paid by Master Tupper, and 
 which should be made g<Hid to liiui by defend- 
 ant. And it is further ordered, that the said 
 defendant do j)ay the costs. 
 
 The defendant apytealed, on the ground.s: 
 
 1. liecause the defendant was entitled to 
 a trial at law to .settle the (luestion of title 
 to the negHK-s in dis|)ute, and the Chancellor 
 should have so decreed. 
 
 1*. Hecause. the Court having refused a 
 ♦355 
 trial at law, and de*cided the issue raised 
 by the pleadings upon that point, the »le- 
 fendant was then entitled to ;»n order of 
 reference to take testimony as to the title, 
 and should not have bt>en forced to trial 
 ui»on the complainants' testimony alone, tak- 
 en by the Master 1 etOre liearing uiion bill 
 and answer. 
 
 o. Recau.se the evidence was Insufficient 
 to set aside the defendant's title, and es- 
 tablish the complainants', and there is error 
 in tlie ditree, ordering the defendant to ac- 
 count for wages after the Master took pt>s- 
 .sesslon of the negroes by order of Court, and 
 on motion of coiuplainant.s. 
 
 Canipl)ell. for appellant. 
 William Whaley. contra. 
 
 The judgment (»f the Court was announced 
 by 
 
 lU NKI.\. Ch. This appeal was submitted 
 on the brief. .<o far as tlu' Court can jutlge 
 from the statement of facts appearing in the 
 Chancellor's decree, and the brief furnished 
 to the Court, his judgment is well sustained 
 by the reasons which he has presented. The 
 decree Is therefore alliruietl. and the api>eal 
 dlsmisseil. 
 
 I>.\K<;.\.\ iiiHl WAUld.AW. ( 'C. concurred. 
 
 .ToilNS'lH)\, Ch., absent at the hearing. 
 Decree attiriued. 
 
 5 Rich. Eq. 'aoe 
 
 ♦SARAH P. I>A\.\ER v. WILLT.VM H. 
 TRESCOT. 
 
 (Charleston. .Ian. T.rm. 1S.">3.) 
 
 ITnitts C=14().| 
 
 Cinivt yaiHf of land to "II. F. and his heirs; 
 to the use of the said II. F. and his heirs; in 
 trust for the use of S. I'., during the term of 
 her natural life; and after her death, then iu 
 trust to ami for the right heirs of her. the said 
 8. P.. their heirs and assigns for ever:"— //(/(/, 
 that S. P.. the cestui que trust, took an estate 
 absolute and in fee. 
 
 I Ed. Note.— Cited in Poston v. Midlniid Tim- 
 ber Co.. 7(i S. C. .■>!>. ."<; S. E. '>W. Clark v. 
 Neves, if. S. C. 4ss. .",7 S. E. (il4, IL' L. R. A. 
 (N. S.l 2US: Williams v. (iause, Ki S. C. I'Ufi, 
 «5 S. E. 241. 
 
 For other cases, see Trusts. Cent. Dig. S ISO; 
 Dec. Diu. <2=>140.] 
 
 Refore Dargan. Ch.. at Charleston, .lune, 
 1>C)2. 
 
 The Ciniiit decree is as follows: 
 
 Dargan. Ch. This is a bill for the specific 
 performance of an executory contract, for 
 the sale of a house and lot in the town of 
 Reaufort. Ry a written contract, dated the 
 2«.)tli of April. A. D. is.ll. the plainfifT under- 
 took to convey to the defendant th»' property 
 in question, and to make him go(Ml titles; 
 and the latter agreed to pay to th«> plaint iff 
 the sum of sl.\ tlnmsand doUiirs, in different 
 instalments, not necessary liere to be par- 
 ticularly brought to notice. The ])laiiitiff 
 aveiN her readiness to comply with tlie con- 
 ditions on her part, and the defendant having 
 refused to perform, this bill was tih'd. 
 
 The defendant, in hi.s answer, alleges, as 
 the groun<l of his defenc*' against the jira.ver 
 of the bill, that the plaintiff is unaiiie to 
 
 CrT>For other cases see suiue topic and KEY-NUMOEK lu all Key-NumJered Digests and Indexes 
 
 141
 
 *356 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 execute to him good and sufficient titles in 
 fee simple, which, according to the true con- 
 struction of the agreement, she Avas bound to 
 execute. The plaintiff derived title from her 
 late husband, N. J. Dauner, who, by a deed 
 bearing date the 29th day of April, 1847, 
 conveyed the lot to Henry Fuller in fee, in 
 trust, however, for uses that are therein 
 declared, in the following language: "to have 
 and to hold, all and singular, the premises 
 before mentioned, unto the said Doctor 
 Henry Fuller and his heirs; to the use of 
 the said Dr. Henry Fuller and his heirs: 
 in trust, nevertheless, for the sole, separate 
 and only use of the said Sarah P. Danner, 
 during the term of her natural life ; so that 
 the same shall in no manner be liable to my 
 debts, contracts or engagements; and after 
 her death, should the said Sarah P. Danner 
 
 *357 
 survive me, the said N. .1. Danner, *and only 
 in that event, then in trust to and for the 
 right heirs of her, the said Sarah P. Danner, 
 their heirs and assigns forever. But should 
 I, the said N. J. Danner, survive her, the said 
 Sarah P. Danner, then in trast, to hold the 
 aforesaid premises to the only use and be- 
 hoof of me, the said N. J. Danner, my heii'S 
 and assigns, forever." 
 
 The plaintiff has survived her husband, 
 N. J. Danner, and in order to determine 
 whether she is entitled to have a decree 
 against the defendant for a specific perform- 
 ance of the contract, it will be necessary to 
 see whether she is now vested with a fee 
 simple estate in the premises which she has 
 undertaken to convey. 
 
 The contingent estate in fee, reserved to 
 the husband in the event of his survivorship, 
 is gone, the condition on which it was to 
 take effect not having happened. It can now 
 never happen, and is not in the way. So 
 that the deed, as to the question before the 
 Court, nmst be construed upon the words 
 giving to Mrs. Danner an estate for life, 
 "and after her death," "to and for the right 
 heirs of her, the said Sarah P. Danner, their 
 heirs and assigns forever." And the dis- 
 cussion will more particularly turn upon the 
 effect of the last words of the preceding sen- 
 tence, which I have placed in italics. What 
 effect have these words that are superadded 
 to the previous words of limitation? Strike 
 them out, and the defendant himself would 
 admit that the estate of the husband, limited 
 upon his survivorship, having failed, Mrs. 
 Danner would now take the fee under the 
 rule in Shelley's case. But the defendant in- 
 sists, that, by the force and effect of the 
 superadded words of limitation, "the right 
 heirs" of Mrs. Danner will be entitled to take 
 at her death, as purchasers ; or, in other 
 words, that ]Mrs. Danner is only entitled to a 
 life estate, with remainder in fee to her 
 own right heirs. 
 
 The reason of this construction rests upon 
 the ground that the donor, by indicating an 
 
 142 
 
 intention to create a new stock of inherit- 
 ance, the "propositus" of whicli should be, 
 not Mrs. Danner, but her "right heirs," has 
 
 *358 
 shown that he did not use *the word "heirs" 
 in its general and technical sense ; but to 
 describe a class of persons who should be 
 entitled to take at the death of Mrs. Dan- 
 •ler. I assent to the doctrine, when the 
 subject matter of the gift is personal estate. 
 I assent to it, however, with this qualifica- 
 tion: that the superadded words of limita- 
 tion must be after a gift to the heirs of the 
 body, or the issue, and not after a limitation 
 to one and his heirs generally. I am aware 
 of no case, English or American, where 
 even in reference to personal property, this 
 idea of cutting down what would otherwise 
 be a fee, by superadded words of limitation, 
 indicating an intent to create a new stock, 
 has ever been applied in a case where the 
 gift to the first taker was to him and hi.s 
 heirs general. 
 
 With this qualification, I think the doc- 
 trine well sustained when applicalile to per- 
 sonal property. It received an early recogni- 
 tion in Dott V. Willson, 1 Bay, 457. It was 
 affirmed with great solemnity in Lemacks 
 V. Glover, 1 Rich. Eq. 141, by the Court of 
 Errors. Myers v. Anderson, 1 Strob. Eq. 
 344 [47 Am. Dec. 537], was decided upon its 
 authority. All these were cases of personal 
 estate. 
 
 The first trace of the doctrine, that I have 
 been able to find in the English reports, is 
 that of Peacock v. Spooner and others, de- 
 cided by Sir .Tose))h .Tekyll, 4 Geo. 2, and cit- 
 ed by Lord Hardwieke, in Hodgeson v. Bus- 
 sey. 2 Atk. 89. Upon the authority of Pea- 
 cock V. Spooner, and "the general run of the 
 cases." as he expressed it, (none of which 
 latter, however, wei'e cited,) Lord Hardwieke 
 decided the case of Hodgeson v. Bussey. In 
 each of these cases, the property limited was 
 a term for years, whith, in questions of this 
 nature, stands upon jjrecisely the same foot- 
 ing as chattels personal. See note. 2 Atk. 
 89. The latter case. (Hodgeson v. Bussey.) 
 arose under a deed of post-nuptial settle- 
 ment, by which the husband conveyed to 
 trustees a term for 59 years, in trust, to per- 
 mit Grace Bussey, his wife, to receive the 
 rents and profits for her sole and separate 
 use, during the term, if she should so long 
 live, and after her decease, to permit Ed- 
 
 *359 
 ward Bussey (who was the settler) *to en- 
 joy the rents and profits during the remain- 
 der of the term, if he should so long live, 
 and after his decease, in trust for the heirs 
 of the body of Grace, by Edward Bussey be- 
 gotten, their heirs, executors and assigns. 
 This case is relied on in the argument for 
 the defendant, as being in perfect analogy 
 to that before the Court. But it has several 
 very Important contradistinctive features. 
 I First, the subject matter is personal, and
 
 DANXKK V. TKKsrOT 
 
 *3G1 
 
 not real proporty. Second, the limitation Ls 
 not to the heirs general, as in the ease of 
 Mrs. Danner, but to tlie lieirs of tlie Ijody 
 of Grace Bussey. And, tliird, tlie limitation 
 is to even a more limited class than to the 
 heirs of the liody of Grace: for it is to the 
 heirs of her body begotten by Edward Bus- 
 sey. 
 
 As our Courts have gone to the English 
 <lecisi(>ns for the authority and principles 
 upon which Dott v. Wiilsoii, Lemacks v. Glov- 
 er, and similar cases havt' ht>«'ii dedditl, it 
 would he the extreme of ai)surdity and incon- 
 sistency not to consider the English decisions 
 as authoritative, when a similar question 
 arises as to real estate. 
 
 .larnian (2 .larm. Wills, L'Tl.) lays down 
 the doctrine broadly, "that where the super- 
 added words amount to a mere repetition 
 of the preceding words of limitation, they 
 are, of course, inoperative to vary the con- 
 struction." Tlie text is supported by a uni- 
 form and unbroken series of decisions, down 
 to the case of Nash v. Nash, ;{ B. and Ad. 
 S.'JO, wiiich is directly in point. 
 
 The cases go further than this. In Good- 
 right v. Pulyn, Ld. Raym. 14.37, S. C. 2 
 Strange, 729, the devise was to the first tak- 
 er for life, and after his death, to the heirs 
 male of his body and their heirs forever: — 
 and i.f he should bai)pen to die without such 
 male heirs, then over. It was held to be 
 an estate tail in the first taker. See Buxton 
 V. Uxbridge, 10 Metcalf, 87. So that it seems 
 to be well settled, that a limitation to the 
 heirs general of the heirs of the IxKly is in- 
 effectual to turn the words "heirs of the 
 body" into words of i>ur<hnse. 
 
 It is said in argument, tiiat tlie case of 
 Doe V. Ironmonger, ;*. East. 'hi:',, is contrary 
 to this proposition. It is not so consid 
 
 ♦ 360 
 *ered by any Engli.><h writer. It is true, that 
 it is rpioted by Chancellor Harper, in Ije- 
 macks v. Glover, in support of the principle 
 therein decided, wbieb, as we bav»« seen, re- 
 lated to per.><oiial estate. That learned Chan- 
 cellor misconceived the issue decided in Doe 
 v. Ironmonger, in applying it to the point 
 involved in Lemacks v. (Jlover. And this is 
 shown by a reference to the repctrt of the 
 former ca.^'. wliidi 1 have now before me. 
 The devise, (which was of lands, &c..) was to 
 Sarali Hallen, &c., "and after her death, 
 for the use of the heirs of her body, law- 
 fully begotten or to be begotten, their heirs 
 and assigns forever, without any respect to 
 Ije had or made in regard to seiuority of 
 flge or iiriority of birth." It is true that the 
 form of the devi.se was sinular to that of the 
 l)equest in Lemacks v. Glover. I'.ut the ques- 
 tions were not the same. It was n<>t de- 
 <"ided that the heirs of Sarah Ilallen's bmly 
 took as purclia.'^ers. because the testator in- 
 tended to create a new stock of inheritance 
 in them. Hear Lord I*"llenlion>ugb, who de- 
 <ided the cause. He said, "all Sarah Ilal- 
 
 len's duldren were intended to take together, 
 witliiait regard to .seniority of age or priority 
 of birth; that must mean, that tliey should 
 take as joint tenants." This was all that 
 was decided ; and tlie above extract embrac- 
 es, according to tlie rep»)rt, every word that 
 fell from his Lordship's lii)s. The decision 
 was, that the heirs of the body of Sarah 
 Hallen took as purchasers, not because the 
 testator intended to create in them a new 
 stock of inheritance, but becau.><e he intend- 
 ed to give them an estate in joint tenancy, 
 which was inconsistent with the devolution 
 of the estate upon them, as tenants in tail. 
 The only other case quoted by the counsel 
 for the defendant, in supiMirt of liis con- 
 struction of the deed, which I feel it incum- 
 bent ui)on me to notice, is that of McLure v. 
 Young. :! IJi<b. i:q. .'mO. decided by the Court 
 of Errors. Though then' was a division of tlie 
 Court in that case, and I my.'^elf was among 
 those who dis-sented. I acknowledge the au- 
 thoritative f<irce of the decision, in cases to 
 which it may be regard»'d as a precedent. Tlie 
 testator, Jonathan Davenport, gave all liis 
 
 ♦361 
 real 'estate to his daughter Catharine, for 
 and during the term of her natural life: and 
 at her death, he gave the .same absolutely 
 and forever to her lineal descendants. Tlie 
 decision of the Court was made to rest upon 
 the ground that the te.><tator. upon the death 
 of his daughter Catharine, intemled to adopt 
 the provisions of the Act of 17'J1, as the rule 
 for the distributi(»n of his estate. It was 
 the .same (the Court ruled) as if he had said, 
 on the death of Catharine, the estate shall 
 go, absolutely and for ever, to such persons 
 among her lineal descendants, as under the 
 statute of distributions, would be entitled to 
 take; which, in the case that happeiie<l. was 
 her only child, the defendant. Thus, accord- 
 ing to the reasoning iqion which the decision 
 was founded, the testator had designated, on 
 the death of Catharine, a iierson or class of 
 l)ersons, who must then. If ever, be in e.s.se, 
 and who, at that time, were to take an ab.so- 
 lute estate. It was the .same (rea.soned the 
 Court) as if Davenport had saiil in his will. 
 I give the estate to Catharine, and on her 
 death I give it to her child or children, to be 
 ecpially divided among them, with the right 
 of rei)resentation to the i.ssue of decea.s«'d 
 I children. &c.. the division to take place 
 among them on the death of Catharine. It 
 is obvious that this case is strikingly dilTer- 
 ent from that lu'fore the Court, in all its 
 ' main features, as well as in the rea.soning 
 i by which it was decided. Certainly, the 
 ■ child of Catharine becaiii*' a new stock, not 
 taking his e.state derivatively from his moth- 
 er, but directly as a purchaser under the 
 will. But that is eipially the case in all 
 limitations of estates, where the issue or heirs 
 I of the luMly take as |)urchasers, after a life 
 ! estate in the ancestor. I'.ut that is not what 
 I Is meant by the reasoning ai>plicable to a 
 
 143
 
 *361 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 case like that now before the Court. It is 
 in a case where there being no other circum- 
 stances to show that the testator intended to 
 use the words "heirs of the body," in another 
 than the technical sense, the argument ap- 
 plies, that because the testator has given 
 the estate to the heirs of the body of the 
 first talker, and, not content witli this, has 
 again limited it to their heirs, &c., he there- 
 fore intended to create a new stock. And if 
 he did intend to create a new stock, such 
 
 *362 
 new stock *would of course talve as purchas- 
 ers. It is clear that the construction of Dav- 
 enport's will depended upon no such argu- 
 ments as this. 
 
 The Chancellor who delivered the opinion 
 of the Court, (quoting from tlie appeal de- 
 cree in Myers v. Anderson,) says, "all the 
 authorities agree, that if the limitation be to 
 tlie heirs of the body or issue, and to their 
 heirs, this constitutes them purchasers, as 
 it shows an intention to give them an es- 
 tate not inheritable from the first taker, but 
 an original estate, inherital)le from them- 
 selves as a new stock." This proposition is 
 mucli too broadly laid down. It is true, 
 when applied to cases involving personal es- 
 tate, as in Myers v. Anderson. But it is not 
 correct when applied to real estate, where, 
 as I have shown, the authorities are all the 
 other way. It is not for me to say why the 
 distinction has been drawn. But I take the 
 law as I find it. 
 
 Archer's case, 1 Co. 66, cannot be consider- 
 ed an authority or an example against this 
 construction. There, lands were devised to 
 one for life, and after his death, "to his 
 next heir male, and the heirs male of the 
 body of such next heir male." 
 
 It was held by all the Judges, that the 
 first taker had a life estate, with a contin- 
 gent remainder to "the next heir male." The 
 testator was considered as having indicated 
 an intention to use the words "next heir 
 male," as a description of the person who 
 was to take after the termination of the 
 life estate — the superadded words of limita- 
 tion converting the expression "next heir 
 male," into words of purchase; "an effect, 
 however," says Mr. Jarman, 2 vol. 235, 
 "which (as will be shown at large in the 
 .sequel) does not in general belong to such 
 superadded expressions of this nature," and 
 the whole course of the English decisions is 
 In conformity with Mr. Jarman's text. 
 
 But to make the most of the general prop- 
 osition above quoted, found in Myers v. An- 
 derson, it is simply this, that "if the limita- 
 tion be to the heirs of the body, or to the 
 issue, and to their heirs, this constitutes 
 them purchasers," &c. But where is the 
 authority for saying that such will be the re- 
 
 *363 
 result, if the *limitation be to the heirs gen- 
 eral of the first taker, and their heirs?" 
 
 Before dismissing McLure v. Young, I have 
 
 144 
 
 one further remark to make. I do this with 
 the view of showing the utter want of anal- 
 ogy between that case and this. In the for- 
 mer, the gift was to Catharine Davenport 
 for life, and after her death to her "lineal 
 descendants, absolutely and forever," a 
 phrase construed by the Court to be equiva- 
 lent to heirs of the body, and evidently im- 
 porting issue; while, in the case before the 
 (Jourt, the estate is given to the plaintiff for 
 life, and after her death, to her right heirs, 
 and their heirs and assigns. There is a vast 
 difference, I think. 
 
 I am of the opinion that on the death of 
 the husband, and the survivorship of the 
 wife, the trustee stands seized for the use of 
 the plaintiff, absolutely and in fee. The es- 
 tate is convoyed "to Dr. Henry Fuller and his 
 heirs, in tru.st for the use of the said Dr. 
 Henry Fuller and his heirs, in trust, never- 
 theless," for the uses and purposes which the 
 deed proceeds to declare. This is a trust 
 which is not executed by the statute of uses. 
 1 Cruise, Dig. 304; Lewiu on Trusts. 102. 
 It will therefore be necessary, in executing 
 a conveyance, that Dr. Henry Fuller should 
 join. 
 
 The judgment of the Court is, that there is 
 no valid objection to the plaintiff's title, so 
 far as the same is derived from the deed of 
 N. J. Danner. 
 
 It is the further judgment of the Court, 
 that if the plaintiff can show, in other re- 
 spects, a good and sutticient title to the 
 premises, she is entitled to have a specific 
 performance of the contract set out in her 
 bill of complaint. 
 
 It is further ordered and decreed, that it 
 be referred to one of the Masters, to report 
 upon the title. 
 
 It is further ordered and decreed, that Dr» 
 Henry Fuller, if the plaintiff's title should be 
 found good and sufficient, do join in a con- 
 veyance thereof to the defendant. 
 
 It is further ordered and decreed, that 
 each party pay his and her own costs. 
 *364 
 
 *The defendant appealed, on the grounds: 
 
 1. Because "right heirs" may be "desig- 
 natio personarum," or words of purchase as 
 well as "heirs of the body," in grants or 
 deeds, as well of real as of personal estate. 
 
 2. Because "right heirs," in this deed, 
 should be taken as words of purchase, from 
 the concurrence of these provisions: first, an 
 express life estate to Mrs. Danner; next, a 
 contingent remainder to her "right heirs ;" 
 and third, the addition of words, showing an 
 intention to make the "right heirs" a new 
 stock of inheritance, or purchasers. 
 
 McCrady, for appellant, cited Archer's 
 case, 1 Co. 66 ; King v. Melling, 1 Vent. 214 ; 
 Lisle V. Gray, Jones 114, 2 Lev. 223 ; Doe v. 
 Laming, 2 Bur. 1109; Luddington v. Kyme, 
 1 Ld. Raym. 203 ; Lowe v. Davies, 2 Id. 1.561 ; 
 Dubber v. Trollope, Auib. 453 ; Harg. Tr. 489 ; 
 Jones V. Morgan, 1 Bro. Ch. R. 208 ; Dott v.
 
 cox V. COX 
 
 567 
 
 Ciinnington, 1 Bay, 453; 3 T. R. 14G; Camp- 
 bell V. Wiggins, Rice Eq. 10. 
 
 Petigru, contra, cited 2 Fearne, 31, 32. 
 
 PER CURIAM. This Court concurs in the 
 conclu.sion of tlie Chancellor. And it is or- 
 dered that his decree be allirmed, and the 
 appeal disniisst'd. 
 
 .701INST0N. DUNKIN, DARGAN and 
 WARDLAW. CC, concurring. 
 Decree atlirnied. 
 
 5 Rich. Eq. *365 
 ♦FRANCES COX v. PETER COX. 
 
 (C'liarloston. Jai. Term, 1853.) 
 
 [Frauds, Statute of e=.119.1 
 
 Defendant aKrcod. by parol, with H. C, his 
 brother, who was inHrni, and whose land was 
 about to be sold at sheriff's sale, to piireliase the 
 land for tiie acconiinodation of liis hrotiier, and 
 to secure a home to his helpless family, and, 
 when it suited him to refund the money, lie 
 should have the benefit of what was done: de- 
 fendant announced the asreenicnt at the sale, 
 bid off the land for a nominal i)riee, and paid 
 the bid: II. C. remained in possession until his 
 death, and then the defendant tooiv a shcrilY's 
 deed for the land, and brouiiht an action at 
 law to dispossess the plaintitt. the widow and 
 heir of H. C. : — JJeld, that defendant's conduct 
 was fraudulent, and that he conhl not avail 
 himself of the statute of frauds to defeat the 
 plaintiff's claim to have the sheriff's deed can- 
 celled, (a) 
 
 [Ed. Note. — Cited in Conev v. Tiramons, IG 
 S. C. 385. 
 
 For other cases, see Frauds. Statute of. Cent. 
 Dig. § 270; Dec. Dig. <©=>11!».| 
 
 Before Dunkin, Ch., at Horry, February, 
 1852. 
 
 Dunkin, Ch. This was an application for 
 an injunction to stay proceedings at law, in 
 an action of trt'sjiass to try title. 
 
 The facts, which for the puri)oses of this 
 motion, are assumed to exist, are substantial- 
 ly tlie.se: 
 
 Herman Co.\. deceased, the husband of the 
 complainant, and the brother of the defend- 
 ant, was, in his life time, seized and pos- 
 sessed of two tracts of land, one called Co.\'s 
 Ferry, with about twelve hundred acres at- 
 tached to it. and the other called Savannah 
 Blufif. Being embarrassed in his pe<"unlary 
 affairs, both these tracts of land were adver- 
 tised for sale by the .sheriff of Horry district, 
 for October sales, 1842. It is charged, that 
 the defendant attended the sale with his 
 brother, Herman Cox, decea.sed, and ainiounc- 
 ed to the by.standers, that "he was desirous 
 of purchasing tlu' plantation, called Cox's 
 Ferry, for the l)enetit and acctunmodation of 
 the said Herman, and a home for him and his 
 family, which was then helpless, and be. the 
 said Herman, infirm; and tliat he desired 
 
 (a) Vide Kiiiard v. Iliers, 3 Rich. E<i. 42."{ [55 
 Am. Dec. (H.'l]. 
 
 no benefit to himself In said purchase, but 
 that as soon as the said Herman refunded 
 him the purchase money, he shouhl have the 
 said plantation absolutely, all of which he 
 had promlseil the said Herman: who assent- 
 ed thereto." Tluit Herman, and all others. 
 
 • 366 
 believed 'the declaration to be nuide in goo«l 
 faith, and the land was kn<Hked oft" to the 
 defendant at fifty dollars, U'jng less than 
 one-tenth the value thereof. These allega- 
 tions are very well sustained: and the atliant. 
 Benjamin E. Sessions, moreover states, that 
 In January, 1.S44. the defendant t<dd him that 
 he had bought the land called Cjix's Ferry, as 
 well as another tract called Savannah I'.luff. 
 on sale day in October previous, for Her- 
 man's beneht. The latter trait was knocketl 
 off to liim for ninety-three dollars, and Her- 
 man liad agreed to sell tliis tract to the af- 
 fiant for fotir hundred dollars. The defend- 
 ant told Sessions that he recognized this 
 transaction, and at first gave him a lioiid to 
 make titles, l)ut there was some dispute with 
 the person in possession, and the tlefeiidant 
 made a (piit claim to Herman, who sued for 
 tlie land, ami then sold it to Sessions for four 
 hundred dollars, the money being paid to 
 Hernuin. or to his agent. At the time of the 
 .sale, in October. 1.S42, Ilernnin Cox and his 
 fannly w»'re residing on the Cox's Ferry 
 tract, where he continued to reside until his 
 decease, some five years afterwards. (ls47.) 
 In the meantime, as it is alleged, the defend- 
 ant had taken no title from the sherilT of the 
 Cox's Ferry tract. 
 
 The statement of the Rev. James L. Beliu 
 is important, not only from his excellent 
 character, but from the position which he oc- 
 cupied towards the parties, and the liistinct- 
 ness of his luirrative. 
 
 Herman Cox being in infirm health, as 
 well as involved in pecuiuary difficulties. Mr. 
 lielin, early in 1844. undertook to act as his 
 attorney in fact, in discharging his debts. 
 Herman Cox gave him a memorandum of his 
 liabilities, and among others, rtHpiesteti him 
 to refund his brother, Peter Cox, (the defend- 
 ant,) the money which he had i>aid to the 
 sheriff' of Horry district for his plantation 
 at Cox's Ferry, which had been punhaseil by 
 Peter at sheriff's sale, for his accommodation, 
 for some fifty-o<ld dollars. .\ few days after- 
 wards, .Mr. Belin met the defendant, and had 
 a free and ftdl conversation with him on the 
 subject: on whii-h occasion, the defendant 
 
 *367 
 confirnu'd what his brother ♦Herman had 
 stated, and t<dd Mr. Pelin, that he wouhl 
 make Hernnin C<»x titles to the land as .soon 
 as the money he had paid the sheriff was re- 
 fiuided : and clo.sed his renuirks by .saying, 
 that "what he had done was for the aciom- 
 modation of his brother." 
 
 Mr. P.elin told him the amount should be 
 refunded to him. Manv of Herman Cox's 
 
 €=:»Foroth3r cases see same topio and KEY-NUMBER in oil Koj -Numbered Digests and Indexes 
 5RlciI.E(i.— 10 
 
 145
 
 *367 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 creditors were pressing him, and Mr. Belin 
 inquired of tlie defendant, wlietlier lie was 
 disposed to wait until they could refund at 
 a more convenient time: and he agreed to do 
 so. Mr. Belin says, that, when he was in 
 funds for that purpose, he offered to pay 
 the defendant what his brother was indebted 
 to him. Perhaps this was after his brother's 
 death, for Mr. Belin saj'S, the defendant re- 
 fused, and claimed his brother's whole estate, 
 refusing to let his sister-in-law (the complain- 
 ant) have any share of it. It seems that Her- 
 man Cox died intestate, and his heirs at law 
 were his widow, (the complainant,) and his 
 brother, (the defendant.) 
 
 Josiah G. Waller, was present at the sher- 
 iff' sales in October, 1842, when Herman Cox's 
 lands, to wit. Savannah Bluff and the Cox's 
 Ferry tracts were sold; he heard the con- 
 versation between Herman Cox and the de- 
 fendant. The defendant "was to bid off the 
 lands of Herman Cox, and when Herman 
 paid him, he was to have the title." He is 
 certain this was well understood by the by- 
 standei's at the sale, as he thinks no other 
 bid than that of the defendant was made. 
 He says that Herman was much attached to 
 the Cox's Ferry tract, valued it highly, and 
 would not have taken $1,000 for it. After 
 the death of the complainant's husband, in 
 1847, she still continued in possession of 
 the Cox's Ferry tract. 
 
 Some time in 1850, the defendant, it is al- 
 leged, attempted to take possession of a por- 
 tion of the land, and did actually take posses- 
 sion, by cutting turpentine boxes and tending 
 them, and that in March, 1851, he instituted 
 an action of trespass to try title against the 
 complainant, relying on a deed which he had 
 obtained from the sheriff'. The prayer of tliis 
 bill is. that this deed may be set aside; that 
 
 *368 
 the suit at law may be enjoined, *and that 
 a writ of partition may issue to divide the 
 land between the complainant and the de- 
 fendant, as the heirs at law of Herman Cox, 
 deceased. 
 
 The defendant has interposed the plea of 
 the statute of frauds, and on this ground, re- 
 sists the motion for injunction. The case 
 has been discussed, as if Peter Cox, the de- 
 fendant, was the original owner of the land, 
 which, in October, 1842, he agreed to sell to 
 his brother, Herman Cox, for fifty dollars, 
 and that this is merely an attempt to enforce 
 the performance of that parol agreement. 
 But the land belonged, it is conceded, to the 
 complainant's intestate. The foundation of 
 her bill is, that the defendant procured the 
 title (if any he has) by fraud, and she seeks 
 to set aside the conveyance thus fraudulently 
 obtained. In October, 1842, Herman Cox was 
 in possession of the premises, holding the 
 same in fee. He valued them at $1,000, and 
 they had a marketable value for the pay- 
 ment of his debts, or other purposes, of 
 $500. He was in danger of being summarily 
 
 146 
 
 I dispossessed by a sherift"s sale. Although the 
 witnesses differ as to the words, the sub- 
 I stance of the agreement with the defendant 
 ' was, that, "for the accommodation of his in- 
 firm brother, and to secure a home to his 
 helpless family," he would bid off" the land, 
 and pay the bid, by which the lien would be 
 discharged; and that, when it suited his 
 brother to refund the money, he should have 
 the benefit of what had been done. This be- 
 ing declared to the bystanders, good feeling 
 to Herman Cox and family, prevented compe- 
 tition, and the defendant became the nominal 
 purchaser, at fifty dollars. It is charged, and 
 it is assumed to be true, that this was a 
 fraudulent contrivance on the part of the de- 
 fendant to obtain his brother's land for one- 
 tenth of its value. That he continued the de- 
 ceit and misrepresentation by his conduct, in 
 taking no title, and by his repeated assuranc- 
 es to others during his brother's life time ; 
 and that his fraud was consummated by his 
 subsequently obtaining the sheriff"s title, and 
 attempting to dispossess his brother's widow 
 and heir. The complainant occupies the posi- 
 tion of her husband. The ground of his claim 
 to relief would be, that the legal title to his 
 
 *369 
 
 land *had been obtained by his brother by 
 fraud, and he would seek that the deed, thus 
 fraudulently obtained, should be cancelled. 
 This Court has often repeated, that the stat- 
 ute of frauds should never be perverted into 
 an instrument of fraud. Thus, in case of an 
 agreement, such as the statute plainly de- 
 clares void if not reduced to writing; yet, if 
 this was omitted by fraud, the defendant 
 would not be permitted to avail himself of 
 the statute. In Whitchurch v. Bevis, 2 Bro. 
 C. C. 505, Lord Thurlow says, "if you inter- 
 pose the medium of fraud, by which the 
 agreement is prevented from being put in 
 writing, I agree the statute is inapplicable." 
 See Keith v. Purvis, 4 Dess. 114. 
 
 The necessity of a prompt decision upon 
 this motion is urgent, as the Court of Com- 
 mon Pleas for Horry district is at hand. 
 
 The Court has not been able to give to the 
 subject the mature deliberation to which it is 
 entitled, and will doubtless hereafter re- 
 ceive. 
 
 For the same reason, the Court has not 
 fully considered another aspect of the case. 
 Assuming it to be a proceeding to carry into 
 effect a parol agreement, the transactions in 
 regard to Savannah Bluff" may demand a full- 
 er development. 
 
 It is ordered, that an injunction issue ac- 
 cording to the prayer of the bill, until the 
 hearing of the cause, and the further order 
 of the Court thereon. 
 
 The defendant appealed on the ground: 
 
 Because it is submitted, that upon the 
 case as made by complainant's bill, his Honor, 
 the Chancellor, should have sustained the de 
 fendant's plea of the statute of frauds.
 
 THOMrSOX V, DULLES 
 
 '371 
 
 Munro, for appellant. 
 Harllee, contra. 
 
 PER CnUAM. This Court concur in the 
 decree of the Chancellor. an<l the appfjil is 
 dismissed. 
 
 DINKIN, DARGAN and WARDLAW, CC, 
 concurring. 
 
 JOHNSTON, Ch., absent at the hearing. 
 Appeal dismissed. 
 
 5 Rich. Eq. *370 
 
 *CHARLES R. THOMPSON v. JOSEPH H. 
 DULLES. 
 
 (Charli'.stou. Jan. Term, 1853.) 
 
 \T runts <®=>L'T:'.'1..1 
 
 Six co-heirs make an informal division of 
 their ancestor's estate, and a plant;ition falls to 
 the exelusive share of C: no conveyances are 
 made, and W., one of the co-heirs, ihes intes- 
 tate, leaving an infant child his sole heir: the 
 infant is a trustee for C. and bound to convey 
 to him under statute, 7 Ann, c. 11). 
 
 [Kd. Note. — For other cases, see Trusts, Cent. 
 Dig. S 3b7i Dec. Dig. <S=5l.'7oV2.1 
 
 [Infants <©=>li7.] 
 
 It is not every interest that puts an infant 
 tru.stee bej-ond the operation of the statute of 
 Ann. 
 
 [Ed. Note.— For other cases, see Infants, 
 Cent. Dig. § ^5 ; Dec. Dig. «S=3:i7.] 
 
 [Infants <g=»L'7.] 
 
 A conveyance made by an infant trustee, 
 
 under a decree of the Court, is good, until the 
 
 decree is reversed, and the conveyance avoided. 
 
 [Ed. Note. — For other cases, see Infants, 
 
 Cent, Dig. S 35; Dec. Dig. <g=27.J 
 
 [.S'pcoi^C PcrfoniiuiKC <>i:3!l.").l 
 
 A good marketalile title is all that is reciuired 
 of the vendor — plaintilY in a suit for specific jier- 
 formance: it is not enough for the defendant to 
 shew that the title may, possibly be defeated. 
 
 [Ed. Note. — Cited in De Saussure v. BoUman, 
 7 S. C. 340 ; Maccaw v. Crawley, 59 S. C. 350, 
 37 S. E. 934. 
 
 For other cases, see Specific Performance. 
 Cent. Dig. § liOli ; Dec. Dig. C=>t»5.J 
 
 Mipedfic Performance <©==>105.| 
 
 Early in 1S47. defendant agreed to purchase 
 lilaintiff's plantation, and to pav for tlie same 
 ."^^l.CMMt in Marcli, 1S48 ; .l;i',(M)0 in Mardi. 1S4U; 
 and .i;3,0<)0 in March, 1S.')0, without interest,— 
 the plaintiff and defendant eacli to plant part 
 for the year 1847, and full possession ti> be 
 given to defendant on January 1, 1.S4.S. Plain- 
 tifi' had a good ecpiitable title, but his legal title 
 was defective. Defendant took possession ac- 
 <'ordiug to the agreement. In A|)ril, 1S47, he 
 discovered the defects in plaintilT's title, and 
 from that time till December, 1S4S, repeatedly 
 imi)ortuned him to cure the defects, and execute 
 a conveyance. On December 11, lN4S. he in- 
 formed plaiutilT, that he had been advise(l good 
 titles could not be made, and on December '2'.\, 
 gave him notice, that, unless good titles were 
 tendered by January 1, 1S4'.>, he should consi<|er 
 the negotiation for the sale at an end. On 
 January 1. 1.S4'.>, he, accordingly, aban<loned the 
 luemises — having paid no part of thi' purchase 
 money. There were considerable dillirulties in 
 the way of the plaintiff in getting in the lei,'iil 
 title. In 1S48. he took some steps towards get- 
 
 ting it in. In August, 1S40. he filed his bill for 
 Bpecihc perfonnance; and in July, 1S51. when 
 the Master submitted his rejtort! he had per- 
 fecti-d his title:— //f/ J, that, although there had 
 been delay on the plaintiff's part, it ilid not 
 amount to such laches as deprived him of his 
 right to a decree for spti-ilic performance. 
 
 [Ed. Note.— Cited in Lesesue v. Witle, 5 S. C. 
 4«il'. 
 
 For other cases, see Specific Performance, 
 Cent. Dig. $$ 3-J5-.541 : Dec. Dig. <S=»105.] 
 
 [Siierific I'irfurnianre ©=>105.1 
 
 Principles on which the Court pr«M-t«eds in 
 grantiu;.' or refusing relief, in suits for specific 
 Iiertormance, where the party seeking relief is 
 wanting in diligence. 
 
 [Ed. Note.— Cited in Cureton v. Uihnore. 3 
 S. C. 51. 
 
 For other cases, sec Specific Performance, 
 Cent. Dig. SS 3l'5-341; Dec Di^'. «S=>105.1 
 
 [.S/»ccj7/c Performance ©zslC!.] 
 
 Where no time is fixed in the contract, or 
 time is not es.sential, it will not, however, be 
 permitted to the party who is to make the con- 
 veyance, to trifie with the interests of the op- 
 posite party by unnecessary delay: it is in the 
 power of the latter to fix some rea.sonalde time, 
 —not capriciously or with intent to sui prise, but 
 a reasonable time according to the circum- 
 stances of the case, — within whi«'h he will exi»ect 
 the title to be made at the peril of rescinding the 
 agreement. 
 
 [Ed. Note.— Cited in Prothro v. Smith. G 
 Rich. Eq. :',:'.-2; Sams v. Fripn. 10 Ri<h. E(|. 
 4;jU; McMillan v. McMillan, 77 S. C. 5i:>. 5S 
 S. E. 431. 
 
 For other cases, see Specific I'erformauce, 
 Cent. Dig. S -'40; Dec. Dig. <g=>;»3.] 
 
 [ISpcrifir Performance <£=!»:.'. 1 
 
 Notice on December I'.'J. that unless gcxMl ti- 
 tles were tendered by Jjnuary 1, the purchaser 
 would consider the contract at an end. held. 
 under the circumstances of the case, not to be 
 reasonable. 
 
 [Ed. Note. — For other cases, see Snecific Per- 
 formance, Cent. Dig. S§ 233-:i44 ; Dec Dig. 
 
 {Specific Performance C=3!'2.] 
 
 The embarrassin;; state of the title has al- 
 ways been recognized, as affording a leasouable 
 excuse fc)r delay. 
 
 [Ed. Note.— For other cases, see Specific Per- 
 formance, Cent. Dig. SS -33-L'44 : Dec Dig. 
 €=91.'. J 
 
 •371 
 
 •Before Johnston, Ch., at Chariest on. Feb- 
 ruary, 1S5L*. 
 
 Johnston, Ch. The bill, in this case, re- 
 lates to a body of land, sitmite in t!ie Parish 
 of St. Mathew. sold by the plalntifT. Thomp- 
 son, to the defeinlant, iMilles. 
 
 The defendant was let jnt<i possession; 
 but afterwards, abainloiied the prendses. and 
 ivfu.sed to complete the contract, on the 
 ground of Insufficiency of title, or delay on 
 the part of the idaintitT to make him a good 
 i-onveyance. The vendor brings this suit, 
 (which was instituted the l!9th of August, 
 1S47.) to compel him to extvute the con- 
 tract of purchase. 
 
 Pending the suit, the titles w»'ro referred 
 to Mr. Tupiter. one of the Masters, who has 
 reported: and excei)tlons ar»» taken by the 
 defendant to his reiiort. 
 
 I shall, first, consider the report and ex- 
 
 ^z^FoT other cases see same topic aud KKY-NUMUEK iu all Key-Numbered Digests aud ludexes 
 
 147
 
 *371 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 ceptions, for the purpose of ascertainiug 
 the true state of the title. 
 
 The land consists of two tracts, viz: 
 
 1. A tract of 1,447 acres, called Lower 
 Falls ; and 
 
 2. A small adjoining tract, of 100 acres. 
 
 1. With respect to the tract of 1,447 acres, 
 or Lower Falls. 
 
 This body of land originallj- belonged to 
 William Sabb. His estate consisted of Low- 
 er Falls, and another contiguous tract, called 
 Providence. 
 
 He died intestate in 18 , leaving a wife, 
 
 Ann; a brother Thomas, and two sisters, 
 Ann Stewart, (wife of James Stewart,) and 
 Elizabeth Thompson, (wife of William R. 
 Thompson.) 
 
 Under a summons in partition, issued from 
 the Court of Common Pleas, the 10th of 
 March, 1S06, Commissioners were appointed, 
 who divided the real estate of William Sabb, 
 by allotting Providence to his widow, Ann 
 Sabb, and Lower Falls to his brother, Thom- 
 as, and his sisters, Mrs. Stewart and Mrs. 
 Thompson, in common. This partition was 
 confirmed by the Court, the 18th March, 
 180S. 
 
 Thomas Sabb died in 1811, intestate and 
 without issue ; and his distributive share of 
 Lower Falls became vested in, and distrib- 
 utable between, his widow, Sarah Frances, 
 
 *372 
 
 and his two *sisters, Mrs. Stewart and Mrs. 
 Thompson, (then a widow, her husband, Wil- 
 liam R. Thompson, having died in 1807.) 
 
 Sarah Frances, the widow of Thomas 
 Sabb, married a second husband, James F. 
 Erving. There is evidence, which, coupled 
 with lapse of time and acquiescence, shows, 
 in a manner sufficiently satisfactory, that 
 she was compensated for her interest in 
 Lower Falls by other real estate.f'a^ 
 
 Mrs. Stewart died in 1813, leaving her 
 husband, James Stewart, and one child, Ann, 
 to inherit her original share of Lower Falls, 
 and her portion accjuired as distributee of 
 Thomas Sabb, and also her portion of what 
 had been acquired from Thomas Sabb's wid- 
 ow, Sarah Frances, as already stated. 
 
 James Stewart, the hvisband, on the 30th 
 of May, 1818, conveyed all his interest in 
 Lower Falls to Mrs. Thompson. 
 
 Ann, the child of Mrs. Stewart, married 
 AVilliam L. Lewis, and died December 11, 
 1831, leaving her husband and three childre)i: 
 Ellen, (widow of William H. Colcock.) Ann 
 and James, her sole distributees. On the 
 10th of April, 1849. these three children 
 and their father, William L. Lewis, con- 
 ve.ved to the plaintiff, Charles R. Thompson, 
 all their interests in Lower Falls. 
 
 What has been stated, shows that the 
 plaintiff, by the deed of April 10, 1849, has 
 the legal title to two-thirds of Mrs. Stewart's 
 original third of Lower Falls, as well as of 
 
 (a) Sugd. on Vend. Chap. 10, p. 88, note 1, 
 (Hammond's edition.) 
 
 148 
 
 her share, acquired through her brother, 
 Thomas Sabb, and his widow ; and that the 
 rest of the tract vested in Mrs. Thompson, 
 his mother. It remains to be inquired, 
 whether he has title to that residue. 
 
 Mrs. Thompson's husband, William R. 
 Thompson, died, as we have stated, in 1807; 
 she died intestate, in November, 1838, leav- 
 ing six children, of whom the plaintiff, 
 Charles R. Thompson, is one. This gave 
 him one-.sixth of his mother's interest in 
 Lower Falls. He and the other live chil- 
 dren made an informal division of her and 
 her late husband's estate, in 1839, in which 
 Lower Falls fell to his exclusive share. No 
 
 *373 
 conveyances were *made. But he had an 
 equitable right to conveyances. The other 
 five children of Mrs. Thompson were: 
 
 1. Caroline, wife of Dr. John B. Lewis. 
 She and her husband conveyed her interests 
 to the plaintiff, the 13th of July, 1843. 
 
 2. Charlotte, who first married Derril 
 Hart, and upon his death, Robert H. Good- 
 wyn. She and her second husband convey- 
 ed her interests to the plaintiff, the 25th of 
 December, 1848, and she renounced her in- 
 heritance the 9th of January, 1849. 
 
 3. John Linton Thompson. He died be- 
 fore his mother, leaving two daughters: 
 Margaret, who married Dr. Artemas T. Dar- 
 by, and Anna, who married William H. Sink- 
 ler. These two daughters, v.dth their hus- 
 bands, conveyed their interests to the plain- 
 tiff, the 25th of December, 1848; the daugh- 
 ters relinquishing their inheritance, the 1st 
 and 2(1 of January, 1849. 
 
 4. Mary Eugenia. She married A. B. Dar- 
 bey, whom she survived ; and after his 
 death, she conveyed her rights in Lower 
 Falls to the plaintiff, 25th December, 1848, 
 The remaining child of Mrs. Thompson was, 
 
 5. AVilliam Sabb Thompson. He died in- 
 testate in 1841, leaving one child, his sole 
 distributee, by the name of Emma Thomp- 
 son. She is still an infant. Proceedings were 
 
 instituted by the plaintiff', the of 
 
 February, 1851, against this infant, upon the 
 ground that her father was a trustee to re- 
 lease his interests in the land allotted to plain- 
 tiff in the division of 1839, and that the trust 
 descended upon her, and that, therefore, she 
 was bound to convey, under the Statute 
 7 Ann, c. 19, (P. L. 97 ; 2 Stat. 546,) en- 
 acted, "to enable infants, who are seized or 
 possessed of estates in fee, in trust, or by 
 way of mortgage, to make conveyances of 
 such estates." A decree passed in the case, 
 the 13th of February, 1851 ; in conformity 
 to which, Emma Thompson, the Infant, on 
 the 28th of May, 1851, conve.ved to the plain- 
 tiff the undivided sixth of her father in 
 Lower Falls, which had descended to her. 
 
 It has been objected, that this conveyance 
 *374 
 is not binding on *the infant, and does not
 
 TIIOMPSOX V. DULLES 
 
 constitute a title vvlncli a purchaser is l.ound 
 to accept. 
 
 I am of opinion, that the convevance Is 
 good, so lon« as the decree, under which it 
 was made, remains of force ;— unless it can 
 he shown that the decree is a nullity 
 
 It has heen argued, that the statute of 
 Ann empowers the Court to direct a con- 
 veyance, hy an infant, only where the in- 
 fant IS a naked trustee; not where the in- 
 fant, although a trustee, has an inten-st • 
 and that the infant in this case had an in- 
 terest, and. therefore, the decree, directing 
 a conveyance by the infant, is null and in- 
 operative. 
 
 It is not every interest that Duts an in 
 
 fant trustee beyond the operation of the st", ', .•,!?''''*' ^'''' ^''''"'^ ^« ^"^'^ "'•'•^^J "' ^-^''^Pel 
 ute of Ann ^'"' ""« ^^l'** conveyance; neither the d 
 
 *376 
 
 tempted to do so. "In every way. therefore." 
 '^ays his Lordship, "the title is good " 
 
 In tlie ca.se bef<»re me. tlie infant stands 
 precLsrly in that situation. She would be 
 bound t<, convey at majority. The Court 
 would not. therefore, allow her to «voi,l the 
 ceuveyance she has made. 
 
 Kut this is not all. The question with me 
 is not. ^^hether I ought now to direct a con- 
 veyance i)y this infant trusting, under tlie 
 statute. The C.urt has already decreed a 
 conveyance, and it has In^en ma.le. That de- 
 cree IS in force; and until it is reversed it 
 •mist be taken to have been rightlv n.a'de 
 and in a i)ro|K.'r ca.se. 
 
 ute of Ann 
 
 In E.x parte Marshall, referred to in a note 
 v. Ilandcock. 17 Yes. :iKi, the 
 
 to 
 
 Master reported, that the infant was not 
 only tru.«;tee as heir of the mortgagee but 
 had an interest in the mortgage monev. as 
 one of the mortgagee's four residuary 'le-i- 
 tees ; and was. therefore, not a mere trustee, 
 within the meaning of the statute. But the 
 Master of the Rolls was of a ditTerent opin- 
 ion, and by an order, made the 15th of 
 June, 1797, directed the infant to convey the 
 estate. 
 
 The same note states, that the .same point 
 had been decided by Lord Thurlow, the 15th 
 of March. 1783, in a ca.se where the heir of 
 the mortgagee, who had died intestate, would 
 be entitled, as one of his next of kin, to a 
 share of the mortgage money, when paid to 
 the administrator. 
 
 The reason why an infant trustee, possess- 
 ed of such an interest, is still within the stat- 
 nte appears to l)e, (as explained bv Lord 
 
 Lldon in V. Ilandcock. 17 Ves. 3S4. 
 
 that the mortgage money being part of tlie 
 personal estate, may Ik- j.aid to the personal 
 representative of the mortgagee, who may 
 compel the payment, and -ive a valid dis- 
 charge for the debt; and, if well pai.l to the 
 repre.sentative. the consequence i.s, that the 
 "'^''^"^ ' (though also a co-e.\ecut<.r. as in 
 - V. Ilandcock.) may be considered as a 
 
 dry trustee, without interest. 
 
 Uut in V. liiiiid.ock, 17 Ve.s. ;j,S4, 
 
 *375 
 Lord Eldon goes still *further. He holds 
 ""t <'nly that where the interest of the in- 
 fant can be extinguish,.,! by payment t,. an- 
 "th,M-. he is thereby redu,e,l to a naked tru.s- 
 tee. an,l may be c,.mpelle,l t,. coiivev under 
 the statute: but that though he po.s.sess an 
 interest tliat <ann..t be thus extingnisb,.,! 
 and IS. therefore, not a dry trustee, and with- 
 ni the statute; yet a conveyance, made bv 
 him. IS not void, but vohlable, and vohhible 
 only during infancy. That it pa.sses the le- 
 gal estate until avoi.led; an,l if made in a 
 
 case where he wnul.l be bound to c..nv,.v 
 when of age. a Court of Equitv w,.mI.I uv'n 
 
 vent him from avoidiu- it ■ t -.u f ^''^-l 7-'"" "'' \7 ""^''^'^f "^ the wife, in I'rovi- 
 m dvoiaiu. It at lau. if he at- 1 dence. to Hampton and wife; constituting 
 
 ., - — v.ecree nor 
 
 the conveyance is voi.l. They are b..th goo,l 
 until av„id,Ml : and though there were a pos- 
 sibility that the infant may hereafter avoid 
 them, I am to regard them. as. now ellic-a- 
 
 ClOUS. 
 
 There is not aiK.ther di^ed, in the whole 
 chain of title, that may not. bv possibilitv 
 l)e set aside, as well as this, bv .some futurJ 
 proceeding. Hut that is not enough t,» in- 
 validate them in a contract of .sale. Mathe- 
 matical certainty is not attainable, and is 
 not rciuired. in such ca.ses. Moral probabil- 
 ity sutlicient to make a g.j,jd marketable 
 title, IS all that is re,piiivd. Ir is n,)t sutli- 
 cient for the defeiHlant, in this case, to sh,.w 
 that the title tendered to bim mav. iM.sslbh' 
 be defeated. He must show, that there jj 
 reason to apprehend it will be defeated. 
 
 ♦376 
 But. so 'far from that being the ,ase. there 
 IS reason to believe it can never be def,.ated 
 or set aside. 
 
 My conclusion is, that the plaintitl- had 
 when he .sold, a good iviuitable title, and has 
 now, a good legal title, to I>.wer Falls. 
 
 1*. Then, as to the 1(X) acn-s adja.ent. This 
 tract also belongwl, originallv, to William 
 Sabb, and was parcel of Provideutv. which 
 was assigned to his widow. Ann Sabb in 
 the partition of iso.s. 
 
 She afterwards married Donald Rowe • 
 and on the sth of August. ISOO, jointnl him' 
 in a ,-onveyaiice of Providence to Edwanl 
 Richardsiin. 
 
 E.lward Richardson, on the .Id of January 
 1S\G, conveyeil to his mother. Rachel Rich- 
 ardson. 
 
 Rachel Kicliard.s,.n devi.sed her estate bv 
 will executed sth Se|.t.'mber. IM'O to her 
 daughter. Mary R. McCord. 
 
 Mary R. McCord died intestate leavinc 
 two daughters: 
 
 1. Rachel Su.san Bee. (by a former mar- 
 riage) who married John R. Cliev.'s ; and 
 
 2. Mary E. Mc-Cord, who married Christo- 
 Ither F. Hampton. 
 
 August U»th, 1,843. Cheves and wife con- 
 veyed all the interest of the wife, in Provi- 
 
 149
 
 *376 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 them tenant in entii'ety of Mrs. Cheves' 
 moiety. 
 
 Mrs, Hampton died intestate, leaving her 
 husband, Christopher F. Hampton, and an 
 infant daughter, Ann Hampton, her sole dis- 
 tributees. 
 
 By her death, her husband became entitled, 
 as survivor, to the moiety of Mrs. Cheves, 
 which had been conveyed to himself and 
 wife, as tenant in entirety ; and to one-third 
 of his wife's original moiety, as her widower. 
 The child Ann, became entitled to the re- 
 maining two-thirds of the latter moiety. 
 
 July 15, 1850, Christopher F. Hampton re- 
 leased to the plaintiff all his right to the 
 100 acres, which the plaintiff had sold to the 
 defendant. 
 
 June 13, 1851, the infant, Ann Hampton, 
 released all her interest to the plaintiff, in 
 
 *377 
 Ihe same 100 acres. This release was *exe- 
 cuted under an order of this Court, obtained 
 on the application of the plaintiff; in which 
 she was held to be a trustee, and bound to 
 convey. The trust arose from the fact, that 
 Edward Richardson had undertaken to con- 
 vey, and did convey to the plaintiff, this 100 
 acres by deed, dated the 29th of June, 1820. 
 He afterwards died intestate, and his es- 
 tate became divisil)le between Mrs. Cheves 
 and Mrs. Hampton, who were his nieces. 
 
 The view I took in relation to the convey- 
 ance of the infant, Emma Thompson, is ap- 
 plicable to that of Ann Hampton; and shows 
 that, in my opinion, it is a good conveyance. 
 
 The title of the plaintiff to this 100 acres 
 is, therefore, sufficient. 
 
 If there is any impediment to the enforce- 
 ment of the contract of sale, it does not 
 consist in a present insufficiency in the title, 
 but must arise from some other cause. 
 
 In order to discover whether there be any 
 other impediment, let us now look into the 
 treaty of sale, and the conduct of the parties. 
 
 The defendant, Dulles, resided in I'hiladel- 
 phia, but owned a plantation adjoining these 
 two tracts of Charles R. Thompson. After 
 some preliminaries between the parties, Mr. 
 Dulles, (being at the time, at his South-Caro- 
 lina estate.) addressed Mr. Thompson the fol- 
 lowing note: 
 
 St. Matthews, Dec. 4, 1846. 
 
 Dear Sir, — I have considered the matter 
 of your river plantation, and have concluded 
 to offer you .$5,000, payable in three e<iual 
 yearly instalments of $1,666.66 each, without 
 interest; leaving to your use, for the year 
 1847, the premises in use now, and the lands 
 at present under cultivation, and to my use 
 the fields and lands which have not been 
 planted this present year. A deed, clear of 
 incumbrances, to be made at the first pay- 
 ment, and the premises mortgaged for the 
 balance. 
 
 If this proposition is accepted, please in- 
 form me at once ; and if not, please return 
 me this letter. It is the utmost I can offer 
 
 150 
 
 *378 
 
 *now: and, if not accepted, I shall make 
 
 such arrangements as to render the addition 
 
 not important to me in future. 
 
 Yours respectfully, 
 
 Joseph II. Dulles. 
 I .expect to return on Monday morning. 
 Mr. Thompson declined this offer, and 
 Mr. Dulles proceeded to Philadelphia. After 
 reaching that city, he received a letter from 
 :Mr. Thompson, to which he replied as follows: 
 Philadelphia. Jan. 21, 1847. 
 Dear Sir: — I have received your favor of 
 the 10th instant: and, although your price 
 i is far beyond my views, I have concluded to 
 come up to your iirice, with some variation 
 of the terms. 
 
 You propose three yearly payments of $2,- 
 000, without interest. To this I cannot ac- 
 cede. 
 
 But, on the basis of your retaining, for 
 this year, the use of the premises and the 
 fields cultivated by yon last year, and my 
 using the remainder of the lands, the whole 
 to be given up to me on, or before, the first of 
 January, 1S4S, with good title, clear of in- 
 cumbrance, together with the buildings and 
 fixtures, (including the tract. I think you 
 said, one hundred acres, bought by you, ad- 
 joining your tract.) I will purchase the prop- 
 erty on the following terms: 
 
 .$1,000 payable first of January, 1848. 
 1,000 " 1st March. 1849. 
 2,000 " 1st March, 1850. 
 2,000 " 1st March, 1851. 
 
 $6,000 without interest ; the payments to 
 be secui'ed by mortgage of the premises, with 
 the privilege of anticipating the payments, 
 with allowance of interest. 
 
 I will add, that my object in making this 
 offer is to arrange my planting the present 
 year ; and I fear it is even now too late. 
 Should I make the clearings now designed, 
 *379 
 
 I would not buy, *at any price: for I do not 
 desire to increase nij- property in Carolina. 
 
 My plan is to sell woodlands to those who 
 want it, to cover any purchase I may make. 
 If I clear what I want, this year, it will 
 preclude any such operation. Please give 
 me your decision. 
 
 Very truly, yours, Joseph H. Dulles. 
 
 This letter was shown to Thompson by 
 William R. Rast, then in the employment of 
 Dulles, as the overseer of his South-Carolina 
 plantation: and he says Thompson declined 
 the terms proposed. 
 
 But shortly after, another letter was writ- 
 ten by Mr. Dulles to Mr. Thompson, from 
 Philadelphia, and also confided to Rast, who 
 carried it to Mr. Thompson. It does not 
 appear that he delivered it, but showed it to 
 Thompson, as he had the letter of 21st Jan- 
 uary. It was retained by Rast, but has been 
 lost.
 
 THOMPSON V. DULLES 
 
 *38-2 
 
 Rast, In his testimony, says, "SubsiHiueut 
 to this," (i. €'., to the letter of the 21st Janu- 
 ary, 1S4T,) •"Dulles wrote again, making a 
 different offer for the same place. I saw Mr. 
 Th(inii)S()n; showed him Dulles" letter, and 
 Thompson accepted the conditions lai<l down 
 in tlH' letter. The terms of the contract were 
 $1,000 in March, 1848, .$'J,000 in March, 1S4J). 
 and $;!,000 in March, 18.j0, without interest." 
 lie refers to a representation of the terms of 
 Dulle.s' letter contained in a letter snb.se- 
 qnently written by himself to Thonipson, 
 which he afhrms to be correct, and in that 
 letter he adds to the foregoing terms: "You," 
 (Thompson,) "to plant the upper part, and 
 Mr. Dulles the lower part of the plantation, 
 and you to give full possession the first of 
 January, 184S. Tlie letter was to be i>indin:4 
 till Mr. Dulles came on; — then he would ar- 
 range business with you himself." 
 
 He testifies further, that upon this verbal 
 acceptance of these terms by Mr. Thompson, 
 he apprised his employer of the fact, by let- 
 ter, and, as his agent, took possession of the 
 
 *380 
 
 lower part of *Lower Falls, and cultivated 
 it in common with the rest of his plantation. 
 This possession was taken in or about March, 
 1847. 
 
 Mr. Dulles, he says, did not reply to his 
 letter, but came out about the beginning of 
 April, and approved the contract that had 
 been made. He also came out again towards 
 the end of that year. (1847,) rode over the 
 place with him, (Rast.) saw the crop gather- 
 ed in bulk, and received from him a full 
 statement of what had been done. There 
 was no discrimination in the crops, between 
 what was made on Mr. Dulles' original plan- 
 tation, and that made on the part of Lower 
 Falls worked by his hands. 
 
 During Mr. Dulles' visit of .\pril, he ad- 
 dressed the following note to Thompson: 
 
 St. Matthews, April 7, 1S47. 
 Charles R. Thompson, Ksij.. 
 
 My Dear Sir: — On looking over the papers, 
 they appear to me so defective, and the right 
 .so much depending on possession, that it 
 will, as I think, be rciiuisite to take out a 
 new grant, conforming with the re-survey of 
 1S41: and to strengthen this by obtaiinng a 
 renunciation on the |tart of Mr. and Mrs. 
 Hampton, [then alive.l if the legal title, un- 
 der Mrs. Rachel Richardson, is in them, as 
 I sui)i)ose it to be. The deinl from Colonel 
 Richardson is only an oliligation against his 
 estate to make a good title; but conveys noth- 
 ing, as I conclude from the papers executed 
 by him. 
 
 It will be re(iuisite, also, to have the deed 
 of partition by your own family rccurdcd. :is 
 I understand that instrument vests the title 
 in you, so far as concerns the heirs of your 
 mother. I presume it is in proper form. 
 
 The deed of James Stewart w;uits cr)ntir- 
 matiou, by the proving and recording that 
 
 instrument, and a renunciation on the part 
 of the heirs of Mrs. Stewart. 
 
 And the interest of Thomas Sabb wants 
 evidence, to show when and how it passed to 
 your mother. 
 
 •381 
 
 •The evidence of posse.ssion, and the per- 
 sons l)y whom it can be proved, can be given 
 in a memorandum. 
 
 I apprehend, these things cannot be done 
 before my going North, which nui.st be next 
 week, if juissible. I return all the papers. 
 
 Yours respectfully, Josei»h H. Dulles. 
 
 In December, 1H47, we find Mr. Dulles 
 again In St. Matthews, and addressing Mr. 
 Thomp.son the following note: 
 
 St. .Matthews. De.-. 4, 1H47. 
 
 My Dear Sir: — Since I left with you the 
 papers, with a note of what I sui»posed reii- 
 nisite, I have not heard from you. My ex- 
 pectation is to return to riiiladeliihia in ten 
 or twelve days: and, if they are prepartMl, so 
 as to make a conveyance which shall be 
 deemed good, I am ready to complete the 
 contract. Not being fanuliar with such mat- 
 ters, I would rest on the opinion of an at- 
 torney of experience in titles. 
 
 I am so busy, hunting an overseer and ar- 
 ranging for an early return, that I have not 
 had time to call, and would not postpone this 
 communication any longer. 
 
 Yours very resi»e<-tfully, 
 
 Joseph II. Dulles. 
 
 Then f<ill-ows this letter, after his return 
 to Philadelphia — the whole of the premises 
 being thi>ii in his possession: — 
 
 Philadelphia, Jan. 11. 1848. 
 
 My Dear Sir: — As there is an unavoidable 
 uncertainty about the time of my visiting 
 Carolina, this Spring, I take the liberty of 
 suggesting the proi)riety of having the land 
 papers prepared at one*', and if, when they 
 are completinl, they are handed to Mr. Ilut- 
 .son, of Orangeburgh. who has attended to 
 my law business, he will examine them and 
 advise me, so that I shall be prepared to act. 
 
 I am so entirely unactpiainted with such 
 ♦ 382 
 matters, that I do ♦not presume to act on my 
 own judgment ; and. in any ca.><e of the pur- 
 cha.se of real estate, refer the ([uestion of ti- 
 tle to a legal adviser. 
 
 I supi»ose (of counsel that a clear and good 
 title can be made, and suggested some things 
 last April; but I do not imtfess to judge 
 whether they are reijuisite, or would be suf- 
 ficient. 
 
 I may desire to exchange, or sell, a part of 
 the tract, or perhaps all my lands: and it is 
 essential to me, (.so far off,l to have the title 
 complete in itself, so that any third party 
 would l)e satisfied with it; and I h:ive gone to 
 a great deal of trouble to make every thing 
 clear and exactly defined, as to my own 
 lands. 
 
 My stay at the South n)ay be short: and it 
 would be well to have this matter attended 
 
 151
 
 »382 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 to early, so that there may be no delay: and 
 I am also anxious to have it fixed absolutely, 
 as, until this is done, I cannot but act under 
 disadvantageous restraint in the use of the 
 property. 
 
 With my best regards, t&c, 
 
 Joseph H. Dulles. 
 
 Charles R. Thompson, Esq., Fort Motte. 
 
 He writes Mr. Thompson again in April, as 
 follows: 
 
 Philadelphia, April 13, 1848. 
 
 Dear Sir: — I wrote to you on the 11th of 
 January last, stating that there was an un- 
 avoidable uncertainty about the time of my 
 going to Carolina, and i-equesting that you 
 would have the land papers prepared im- 
 mediately, and, by submitting them to Mr. 
 Hutson, of Orangeburgh, as proposed, I could 
 perform my part of the contract, whether 
 present or absent. 
 
 My mortgage was prepared a year ago, 
 according to the terms of agreement, and I 
 have been waiting to hand it over to you, as 
 soon as the titles were ready. 
 
 I am ready now, as I have been, to make 
 the first payment when the titles were pre- 
 pared, and I only wait your action. 
 
 Mr. Hutson wrote to me that he would in- 
 *383 
 form me, as soon as *he examined your con- 
 veyances. If he has had the papers, and neg- 
 lected to do so, I regret it. 
 
 The plan I proposed was the only one to 
 prevent delay: and I now write to say, that 
 I fear it will not be in my power to go to 
 Carolina this Spring, various and important 
 changes in my family iirevent it, at present. 
 But this will be no dithculty in the way of a 
 settlement, as all can be done that the case 
 requires, on notice that the title is ready. 
 Yours, very respectfully, 
 
 Joseph H. Dulles. 
 
 In December, Mr. Dulles is in South-Caro- 
 lina, and writes .Mr. Thompson as follows: 
 St. Matthews, Dec. 11, 1848. 
 
 My Dear Sir: — Being advised by my attor- 
 ney, after an examination of your papers, 
 that a clear title cannot be made, to convey 
 the lands at the Lower Falls place, I must, 
 of course, relinquish the purcliase. 
 
 This has been a great disappointment, and 
 a serious inconvenience to me. Taking it, 
 however, as one of the cases of unintentional 
 error to v^'hich business transactions are lia- 
 ble, I am disposed to make the best of it, and 
 am willing to pay what, under the circum- 
 stances, may be deemed a fair price for the 
 use of such parts of the land as have been 
 planted. 
 
 This, we may adjust ourselves, or leave to 
 be settled by disinterested persons: so that 
 there may be nothing to interrupt the friend- 
 ship which has so long existed. 
 
 I expect to remain in the parish twelve or 
 fifteen days, and then be subject to an im- 
 mediate return to the North. I hope that, 
 within that time, this matter may be settled 
 
 152 
 
 ] to our mutual satisfaction. I shall be pleas- 
 I ed to receive any proixisition from you, and 
 give it my immediate attention. 
 
 Yours, very respectfully, 
 
 Joseph II. Dulles. 
 *384 
 *He writes him again: 
 
 St. Mattliews, Dec. 2?>, 1S4S. 
 Dear Sir: — Under the circumstances in 
 which I am placed, I deem it my duty to ad- 
 vise you, that if good titles to the Lower 
 Falls Plantation, which you proposed sell- 
 ing me, are not tendered to me by the tirst 
 day of January next, I shall consider the 
 negotiations for the purchase of the same 
 at an end. Urgent business recpiires my re- 
 turn home, at least by that time. 
 Yours, very respectfully, 
 
 Joseph II. Dulles. 
 On the 1st of January, 1841), .Mr. Dulles 
 closed the correspondence, by a delivery of 
 the keys to Mr. Thompson's overseer, and by 
 the following note to himself: 
 
 January 1, 1849. 
 Dear Sir: — Having received no communi- 
 cation from you, since the notice which I 
 gave you on the li3d of December, I now sur- 
 render the proposed purchase of lands on 
 the Santee, and return you the keys of the 
 houses, which have not been used. I am as- 
 sured, that the property is, in every way, in 
 better condition than when it was left by 
 your negroes, excepting the ordinary decay 
 of the buildings. 
 
 Yours, very respectfully, 
 
 Joseph II. Dulles. 
 These are the facts upon which the bill 
 was brought: and it was tiled, as has been 
 stated, the 29th of August, 1840. 
 
 One of the questions presented in the case 
 is, whether a contract of sale has been made 
 out; and, if so, what are its terms? 
 
 The bill, after stating the two offers con- 
 tained in Mr. Dulles' letters of the 4th of 
 December, 1846, and 21st January, 1847, 
 which were declined, proceeds: "But the said 
 Josei)h H. Dulles, at the same time, author- 
 ized his agent, William K. Kast, to see your 
 Orator, and to conclude the contract with 
 
 *385 
 
 him. That, *about the first day of February, 
 1847, the said AVilliam K. Kast saw your Ora- 
 tor, and agreed with him for the purchase, 
 on the same terms, as to the taking of pos- 
 session of part immediately, and the residue 
 in January, 1848, as mentioned in Mr. Dul- 
 les' letters." "And the said William K. 
 Kast, by the authority of the said Joseph H, 
 Dulles, agreed that the said Joseph H. Dul- 
 les should pay your Orator, for the said plan- 
 tation, the sum of .f6,000, in manner follow- 
 ing: that is to say, $1,000 hi March, 1848; 
 S;2,000 in March, 1849; and the residue of 
 $3,000 in March, 1850;" and avers delivery 
 of possession, under that contract, which is 
 stated to have been by parol. 
 
 The defendant admits his offers in the two
 
 THOMPSON V. DULLES 
 
 *387 
 
 letters referred to, and tliiit they were de- 
 <,'liiied. He also admits, that he yave au- 
 thority to Rast to agree with the iilaintiff 
 for the purchase of the itlaiitatit)n ; liut his 
 authority was si)eoial, to wit: to vary the 
 times of payment proposed in his letter of 
 21st January. 1S47, so as to make payment 
 of $1,000 1st March, 1.S4S: $12,000 1st Mareh, 
 1S41): and $;{,000 1st March, isnO: hut to 
 retain and insist upon all the other terms of 
 that letter. 
 
 He insists that the possession taken Ity 
 him was in pursviance of these terms, and 
 pleads the statvite of frauds to the contract 
 set up by the plaintiff, so fur as it dei)arts 
 from them. 
 
 The material departure suggested, is the 
 omission, (in the plaint itTs statement of the 
 contract,) of the stipulations in the defend- 
 ant's letter, that '"a good title, clear of in- 
 cumbi-ance," was to accom[)any the full de- 
 livery of possession, in January, 1.S4.S ; and 
 that the purchaser was to have "the privilege 
 of anticipating the times of payment, with 
 allowance of interest." 
 
 It is further insisted, that the oli.ject of 
 speedily obtaining the actual execution of 
 a clear conveyance was stated by the de- 
 fendant in his said letter, and was of the es- 
 sence of the contract, and is omitted in the 
 plaintiff's statement of it. Upon this latter 
 point, I am very clear, that although the dis- 
 closure of his purposes by the purchaser so 
 bears upon the execution of the contract of 
 sale, that it will not be allowed to be execut- 
 ed to the disappointment of the purposes so 
 
 *386 
 disclosed — iu other words, *will not be ex- 
 ecuted against good faith — yet the disclosure 
 referred to forms no part of the contract, 
 properly so called, and need not be stated as 
 I)arcel of it. 
 
 The other departure from the contract, ad- 
 mitted by the defendant, might be more ma- 
 terial, if the establishment of the contract 
 depended altogether upon the defendant's 
 iidmissions. 
 
 Wiiere the existence of some contract, (not 
 reduced to writing,) is evidenced by acts 
 done in partial execution of it, as in this 
 instance, the case is so far taken out of tlie 
 statute of frauds, that the contract actually 
 made, and, of course, its particular terms, 
 may be established by parol. In this case, 
 the act of taking possession under a contract 
 is proved. This is sufficient to displace the 
 plea of the statute: and that being out of 
 the way, we are to receive parol evidence of 
 the authority of Kast, the agent, and of the 
 contract which he made.(^) 
 
 I take .it for granted, frtun his testimony, 
 that he (Kast) made the contract, although 
 
 (/)) 1 Mad. Ch. 'Ml ; 1 Fonb. ISO. note (ci): Sag. 
 Vend. S.'!. S4: Atkins, on Titlfs. (5(5: 1 Ves. "Jl-'l, 
 *J!)7; 1 S.Tg. A: H. SO; L' Jnlni-^. IC. ."ST; (Jiuit.-r 
 v. lliUsev, Amb. nsti; :{ Atk. :j ; 1.'. .M.-iss. S.".; 
 S liurr. ioil): Kirbv. 4(K) ; 1 Dos. :{r.O ; L' I >f.s. 
 590; 4 Des. 77; 3 Ves. 3U, note; 12 Ves. 21J. 
 
 that does not appear to lie his apprehension 
 of tile mtitter. He t»roves the contents of 
 the last letter wliich he showed to Thon>i)soa. 
 without stating tiiat it contained any exjiress 
 reservation of tlie terms of the previous let- 
 ter, as defendant supposes. That letter, 
 thus exhibited by liim, was the ba.sis of 
 Thompson's acceptance: and Uast's only au- 
 thority being t<» obtain that acceptance, the 
 contract was cjoseij liy Kast by taking po.s- 
 se.ssion. 
 
 It is olijected, that, altiiough the part ex- 
 ecution be adjudged to take the contract of 
 the parties out of the statute, and to let in 
 parol evidence of the contract actually made, 
 yet, as the defendant has denied the con- 
 tract alleged in the bill, the single testimony 
 of Kast is not sutHcient, in this Court, to es- 
 tablish it. in opposition to the defendant's 
 deiual. This objection is neither «'xactly ac- 
 curate, nor does it do justice to the defend- 
 ant, himself. It is not true that his answer 
 
 ♦387 
 is contradicted by Rast: •becjiu.se the de- 
 fendant (h)es not, in fact, deny the contract 
 as alleged. To the allegation that Kast, as 
 agent of the defendant, made a contract, iu 
 certain terms, the defendant answers tliat 
 he gave Ra.st specific authority. This is 
 not, in my opinion, such a direct denial of 
 the contract alleged, as renders it necessary 
 to prove it by two witnesses. 
 
 So far, I am with the plaintiff in this case; 
 but the principal difticulties of the case are 
 yet to be crmsidered. 
 
 The plaintiff, at the time he made the 
 agreement to sell, had not the legal title. 
 Rut he had the etpiitable title: and the gen- 
 eral principle is. that wht>re the vendor has 
 the etpiitable title in him, the getting in the 
 legal title is a matter of conveyancing. 
 
 The plaintiff had the ability, at some time, 
 sooner or later, to nuike a good legal title. 
 Was there anything reipiiring him to make 
 it out sooner than he has done? 
 
 I have said that the contract proved, did 
 not provide for the making of titles at a 
 siiecified time: and. in such cases, time is 
 not generally essential. 
 
 Where a specific time is fixed by contract, 
 it may generally be insisted on : and, when 
 insisted on. the contract will not be enforced, 
 uidess there be a substantial coniiiliance 
 with its terms.((:) Hut parties who may 
 insist upon the terms, may also waive them: 
 and he who, either expressly or by his con- 
 duct, makes such a waiver, has no right 
 afterwards to take advantage of the other 
 party, by holding him literally to the terms 
 which he lias waived. (rf» 
 
 On the other hantl, where no time is fixed 
 in the confra<t, the party who is to make 
 the conveyance will not be permitted, on that 
 account, to trifle with the interests of the 
 opi)osite party by unnecessary delay: and 
 
 (r) 1 Johns. Ch. .'{74. et soq. 
 (rf) 2 Story i:i\. § 770. 
 
 153
 
 *387 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 it is in the power of tbat purty to fix some 
 reasonable time — not capriciously or unrea- 
 sonably, or for the purpose of surprising 
 him, and thus getting clear of the bargain, 
 but a reasonable time, according to the cir- 
 
 *388 
 cumstances *of the case — within which he 
 will expect the title to be made, at the peril 
 of rescinding the agreement. (c) 
 
 These principles are clear. There is no 
 mystery about the doctrine. Good faith is 
 to govern in all cases. 
 
 There was, in the contract in this case, 
 not only a "want of .stipulation as to the time 
 when titles were to be made, but possession 
 was to pi-ecede the title, and was taken ac- 
 cordingly. 
 
 Now, out of this pos.session arises another 
 difficulty. It is contended by the plaintiff, 
 that so long as this possession was retained, 
 it was a continual waiver of all objections 
 to the title, or of the defendant's right to 
 complain of the delay in making it out. 
 
 But where the contract authorizes pos- 
 session to be taken before a title is made, 
 the fact of possession cannot, by itself, be 
 used again.st the purchaser, for that would 
 be contrary to the very terms of the con- 
 tract.(/) Nor is his taking possession with 
 the vendor's concurrence, a waiver of 
 any right to call for a good title: and the 
 vendor's subsequent delivery of abstracts, 
 or negotiations on the subject, render this 
 clear. Nor will ordinary acts of ownership, 
 after possession, vary the rights, as arising 
 from possession : for what can be the pur- 
 pose of taking possession, but to act as 
 owner ? 
 
 A piirchaser, who goes in under a contract 
 for a good title, cannot be compelled, from 
 the mere fact that he is in possession, to ac- 
 cept a bad or defective one. Nor is his pos- 
 session any justification to the vendor in un- 
 reasonably delaying the title: nor will it, 
 of itself, deprive him of the right to com- 
 plain of such delay. 
 
 The reasonable doctrine to be deduced 
 from all the authorities is, that this point, 
 like every other, must depend upon good 
 faith and fair dealing.(f7) A party in posses- 
 sion will not be allowed to retain the pos- 
 session, and, at the same time, insist on an 
 entire recision of the contract: and, so long 
 
 *389 
 as he retains the *possession, it is, unless 
 under peculiar circumstances, so far, a waiv- 
 er of all anterior objections, whether of de- 
 fects in the title, or delay in completing it, 
 that if title is made to him, while j'et in pos- 
 sei^sion, he must accept it. Why does he re- 
 main on the land, unless he is waiting for 
 the title? 
 
 In this case, it does not appear, that at 
 
 (e) 2 Story Eq. S 777. 
 
 (/) 2 Sug. 65, cliap. S, § 1, pi. 26, 27, 28, 29, 
 and see chap. 4, § 4. 
 
 {g) 2 Sug. 21, chap. 8, § 1, pi. 27, 
 154 
 
 the time of the agreement of purchase, Mr. 
 Dulles had been informed of the state of 
 the plaintiff's title, and it is fair to pre- 
 sume that he took possession in ignorance 
 of it. 
 
 The contract he made was executory in 
 every particular, except as to the possession. 
 But in April, 1847, it appears from his letter, 
 he was apprised of the state of the title. 
 When he received this information, he might, 
 perhaps, at once, have put an end to the 
 agreement, by abandoning his occupancy of 
 the land then in his possession, though, as 
 his crop was pitched, the sacrifice would 
 have been unreasonable. But he remained 
 on it (constantly calling for the title, how- 
 ever,) for the year 1847. And in 1848, he 
 took possession of the entire premises, and 
 held it until the end of that year also. 
 
 During all this time, he was urgent for 
 the title, and ready to perform his part of 
 the agreement. There was neither neglect 
 nor default on his part. If there was un- 
 reasonable delay on the vendor's part, he 
 had a right to complain of it, and his waiver 
 of that right extended only so as to make 
 the contract obligatory on him, if the com- 
 plaint was removed before he abandoned 
 it.(/0 
 
 And here, I think, is the main difficulty in 
 the way of the plaintiff. It appears to me, 
 he was too indifferent to the interests and 
 claims of the defendant, as a purchaser, 
 and, by his delay, kept him in suspense 
 for an unreasonable time, not only as to his 
 ultimate right to the property purchased, 
 but also as to the plans and arrangements 
 which the defendant had, at the outset, in- 
 formed him he must make, in consequence 
 of the purchase. 
 
 *390 
 
 *An eminent elementary writer (i) says, 
 that "the exercise of this whole branch of 
 Equity jurisprudence, respecting the recision 
 and specific performance of contracts, is not 
 a matter of right in either party: but it is 
 a matter of discretion in the Court. Not, 
 indeed, of arbitrary or capricious discretion, 
 dependent upon the mere pleasure of the 
 Judge, but of that sound and reasonable dis- 
 cretion, which governs itself, as far as it 
 may, by general rules and principles: but, 
 at the same time, which withholds or grants 
 relief according to the circumstances of each 
 particular case, where these rules and princi- 
 Ijles will not furnish any exact measure of 
 justice between the parties." 
 
 In another place, he says, that though 
 time is not, generally, deemed in Equity to 
 be of the essence of contracts of sale, unless 
 the parties have expressly so treated it, or 
 it necessarily follows from the nature andt 
 circumstances of the conti-act, yet, "Courts 
 of Ecpiity have regard to time, so far as it 
 
 {h)2 Sug. chap. S. § 1. pi. 44; and Kuatch- 
 bull V. Grueber. 1 Mad. R. 91. 
 (0 2 Story Eq. § 742.
 
 THOMPSON' V. DLLLE.S 
 
 rosiiects the good faith and diliReiu-e of the 
 liuiiies." (/) He observes further, that 
 "if circuuistances of a reasonaltle nature 
 lia*e disahled u party from a strict coiiipli- 
 anee. or if lie eumes recente farto to ask a 
 .speeihc performance, the suit is treated wifh 
 indu)i,'ence, and ;,'eia'rall.v with favnr, hy tl>e 
 Court." '"Hut, tlien." says lie, "in such cases 
 it shoukl be clear," "that comiu'usatlon for 
 the delay can be fully and beiu'ticially niven," 
 and "that he who seeks a si)ecitic perform- 
 ance is" not only "in a condition to perform 
 his own part of the C()ntract," but, "that he 
 has shown himself ready, desirous. promi»t 
 antl eatier to perform the contra<-t." (A) 
 
 Cli. Justice Marshall says, in Hrashier v. 
 (Jratz, (ti Wheat. 584, [-> L. Va\. .31i-J]). "If a 
 bill be brouiiht by a party who is luniself 
 in fault, the court will consider all the cir- 
 cumstances of the case, and decree aifordin;,' 
 to those circumstances." 
 
 Chancellor Kent, in l?enedict v. Lynch. (1 
 Johns. Ch. o77), cites with approbation llie 
 
 *391 
 doctrine laid down by Lord 1 lanl*wlcke, (1 
 N'esey. 4oO», where the enforcement of <'on- 
 tracts is put ui)on the footing, that "the non- 
 performance has not arisen by default of the 
 party seeking to have a specific perform- 
 ance:" and adds, ".so it wa.s held in the 
 case of Hayes v. Caryll, as early as 170l', (5 
 Viner. 538, pi. 18), that where one person has 
 tritied, or shown a backwardness in ptM-form- 
 ing his part of the agreenu'nt, Kiiuity will 
 not decree a specific performance in his fa- 
 vor — especially if circumstances are altered." 
 
 In Fordyce v. Ford, (4 Bro. 4!>4i. Lord Al- 
 vanley said, "the rule, now, is, that if either 
 party has been jiuilty of gross negligence, tiie 
 Court will not lend him its aid. to complete 
 the contract.'" Though, in that case, his 
 Lordship decreed a specific performance, he 
 added, that he hoped it would not lie under- 
 stood, that a man entering into a contract 
 should thiidv himself entitled to take his 
 own time to perform it.(/» 
 
 I am aware that most of these observations 
 were made in cases where a specific tinu' was 
 stipulated, in the contract, for the perform- 
 ance of the acts whicii the parties seeking a 
 specific execution had omitted. Hut, in prin- 
 ciple, there is no distinction between negli- 
 gence to come up to a time stipulated, and 
 negligence to perform duties which are In- 
 funibeut, although no time is fixed in the 
 contract. The principle is sound aiai just, 
 .md demanded alike by morals and by policy, 
 that he who has neglected to perform a duty 
 which he might have performed, and o\ight 
 to have perf<)rmed, has no claim ujton the 
 Court to comitel the other party to perform 
 his engagements. Whenever such negligent 
 
 0)2 Story Eq. § 773. 
 
 (A) T) Vos. 71iO, note b, citing Milwanl v. 
 Tlinnot. 
 
 (0 Sec Milward v. Tlianot. (.". Vus. 720, uoti",) 
 aud Guest v. Huuifray, (Id. 518.) 
 
 party comes into this Court, he must be told 
 that he has neglected to do Kquity, and has 
 therefore de|»rived him.self of the Kquity he 
 claiui.s. "An Ktpiity arising out of one's own 
 neglect !" exclaims Lord Loughborough, in 
 Ll<»yd v. Col let t. (4 Itro. 4i;u.» "It is a singu- 
 lar head of Eiiulty I" (;;») 
 ♦392 
 
 •There are ca.ses in widch tiie Court will 
 help n»'ither party, but will hNive them both 
 to their remedies at Law: of which the cases 
 of (iillani v. Hrlggs |Kleh. Kii. Cas. 4.12] 
 and Hriggs v. (Jlllam. mentioned l»y Chancel- 
 lor llarju'r, In Wldtworth v. Stuckey U KIch. 
 Kq. 4(141, are examples. One of these bills 
 was by the vendor, to enforce the contract 
 of sale, and the other by the purchaser, to 
 rescind It. Hoth bills were disndssed. on the 
 groun<i of laches In the parties who fibnl 
 them, and they were left in the condition they 
 harl pla<ed themselves. 
 
 In this lase. It Is true, that by the terms of 
 the contract, the making of titles was not a 
 condition precedeid to the defendant's first 
 |)ayment, as he stiMus to have supimlsjiI. 'Hh' 
 titles ami the i>ayments were ln<le|H>n<lent. 
 Hut if the defenilant. after omitting his i»art 
 
 of till itract, had tiled his bill Atr titles, I 
 
 should have disndssed It. And .so here, the 
 plaintiff seeking to enforce itaynuMit. is not 
 entitled to a d«K."ree. becau.se he neglected to 
 perform his own i)art of the agreement. 
 
 In the ease before me, it is dlllicult to per- 
 c-elve any excuse for the delay of the idalntlfT 
 t(> perfect his title. It was not a delay aris- 
 ing from, lind made neces.sary by, the state ol 
 the title. If he had ju-oceeded diligently In 
 projier steps t») perfect his title, and the pro- 
 ceeding had been necessarily protracted by 
 the ditliculty of the i)roceeding, he ndght have 
 been excused. Hut that was not the case. 
 The co-heirs of his mother were around hhn; 
 yet he never appears to have even pre.sentt^l 
 deeds for their slgnattires. till the very end of 
 1848. The infant lu'lresses of William Sabh 
 Thompson and Mrs. Hampton wen* not mov- 
 ed air.tinst till ls51. ami then there was no 
 dilhcnity. Was not this delay In taking iirop- 
 er steps, or any steps, the meri'st laches, un- 
 less the plalntltT accounted f<u- It V Was it not 
 necessary for him to excusi> himself liy evi- 
 dence'/ And what single cln-umstance has he 
 shown, which prevented his iiroceedlng? He 
 was made giware, by the second letter of the 
 defendant, what his plans and pur|Mtses were 
 In the pur<ha.s«>. iind could not expti-t that 
 he would ventur<> to sell woodlands In order 
 to cover this purcliase, Jintll he was assured 
 of the title. 
 
 *393 
 
 •He shouhl, therefore, have had sulliclent 
 
 {III) Smith v. Cbiy, Anib. ti45: ,'{ Hro. o. r. 
 
 (i4ll, note) Hi'«-kfui(| v. Wade. (17 N'os. .87.) nnd 
 I soo 2 Hicli. K(i. 441. "Notliins:," snys Lord 
 
 Cainiltn. in .Simtli v. Cla\. "can call forth tlu> 
 
 Ciiiirt into activity, hat consii.-nic, g<i<i«l faith. 
 ! aixl rcas<inal>l<' diligence \\'lioro tlioso arc 
 i wantin;:. flu' Court is passivr. :iad <l(>os nothing. 
 
 Laches uud ucgloct are always discouutonanced." 
 
 155
 
 •893 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 regard to his interests to have made him dili- 
 gent in getting in his title. 
 
 But look at the time the plaintiff allowed 
 to elapse without taking one single step to 
 get it in. From February or March, 1S47, 
 when the agreement was made, the defendant 
 was continually importuning him to perfect 
 it, holding himself ready the whole time to 
 perform what was incumbent on himself. He 
 pointed out the defects in the title, and re- 
 quested that the plaintiff should proceed to 
 cure them. This importunity continued un- 
 til near the close of 1848, and not a single 
 step appears to have been taken by the plain- 
 tiff until the 25th of December, 1848, when 
 he got in the deeds of some of his mothers 
 heirs. 
 
 This was done under the spur of the no- 
 tice extended by the defendant's lettex's of 
 the 11th and 23d of December, 1848. If .so 
 nmch could be done in that short interval, 
 what excuse can be given for the total neglect 
 of, and indifference to, the previous impor- 
 tunities of nearly two years? 
 
 If the defendant had not been constantly 
 pressing the plaintiff to take steps to perfect 
 his title, before he gave the notice of the 23d 
 of December, 1848, I miglit have inferred that 
 he was acquiescing in the plaintift"s laches 
 up to that time, and that so sudden a notice 
 was calculated to surprise him. (h) But the 
 w^hole correspondence repels that idea. The 
 plaintiff could never, for a moment, have sup- 
 posed, from anything in the defendant's let- 
 ters, from first to last, that he was disposed 
 to acquiesce in the least delay. He was in- 
 dulgent, not acquiescent, and his kind for- 
 bearance should not, in good faith, be un- 
 reasonably turned against him. To all ap- 
 pearance, if he had not abandoned the prem- 
 ises and the contract, the plaintiff would nev- 
 er have proceeded to deduce his title. Was 
 the defendant to wait forever? 
 
 It has been argued, that because the de- 
 fendant, in throwing up the contract, offered 
 
 *394 
 the objection that he was advised good *titles 
 could not be made, therefore he had no other 
 justification for that act. Did the fact that 
 the plaintiff could make good titles, justify 
 his laches in not making them? Is it usual 
 to limit a defendant to a single ground taken 
 by him, merely because he fails to state oth- 
 ers, equally, and indeed, more just? We 
 might, it is true, infer, from the defendant's 
 silence on that occasion, as to the plaintiff's 
 laches, that though sensible of it, he had 
 waived it ; but when we look to his previous 
 letters, in which his constant theme is "no 
 delay: — make the titles forthwith, — early: — 
 at once — I am acting under restraints until 
 I get them," &c. — are these evidences of 
 waiver? or are they not evidences of a con- 
 trary character? And as to the defendant's 
 prolonged indulgence — its length is only proof 
 
 (n) 2 Sug. 21, chap. 8, § 1. pi. 44; Knatch- 
 bull v. Grueber, (1 Mad. R. 91.; 
 
 15G 
 
 of the extent of his injury. Will it do to 
 say, that the greater the delay — the more ripe 
 the offence — the greater proof is the ending 
 of it that complaint has been waived? 
 
 Though a party be not bound to make titles 
 at a fixed time, he is, nevertheless, hound to 
 make eft'orts to complete them in a reasonable 
 time. If such a party manifests diligence, he 
 will generally be sustained, if he is able to 
 make titles at the time of the decree. But 
 where there is not the least trace of diligence 
 — but the reverse^I think it would be a 
 sacrifice of sound policy to grant such indul- 
 gence. It must necessarily encourage laches, 
 and leave the opposite party subject to unrea- 
 sonable suspense and vexation. 
 
 In concluding to refuse the application for 
 specific performance. I avail myself, with 
 pleasure, of the offer of the defendant to 
 make reasonable compensation for his use of 
 the premises. 
 
 It is ordered, that the bill, so far as relates 
 to a specific performance, be dismissed with 
 costs ; and that it he referred to one of the 
 Masters, to inquire what sum should be paid 
 by the defendant to the i)laintiff, for his use 
 of the land, the subject of the suit. 
 
 The plaintiff appealed, for the following 
 reason: 
 
 That, as time was not of the essence of the 
 
 *395 
 
 contract, as his *Honor has well shown, the 
 circumstances of this case entitle the com- 
 plainant, on grounds of Equity, and accord- 
 ing to the rules of this Court, to a specific 
 performance. 
 
 1. That after the defendant had taken pos- 
 session, the sale was not executory, but exe- 
 cuted : so that the question is, rather about 
 the rescinding than about the performing of 
 a contract. That defendant has shown no 
 sufficient cause for rescinding his agreement, 
 and would probably never have thought of 
 doing so, but for the advantage, which he 
 supposed that he had in the provisions of 
 the statute of frauds — an advantage which 
 he owed to the suppression of his letter to 
 William R. Rast, which, from the testimony 
 of Rast, there is every reason to believe, 
 came to his hands. 
 
 2. That all the delay was between Feb- 
 ruary, 1847. and January, 1849. That great 
 part of that delay is accounted for by the 
 death of Mrs. Hampton. That complainant 
 was not inactive: that he employed defend- 
 ant's solicitor, who made progx'ess, and ob- 
 tained the releases of December, 1848 : and 
 the necessity for legal proceedings probably 
 prevented him from going further. That, as 
 soon as defendant assumed a position ad- 
 verse to the fulfilment of his contract, com- 
 plainant employed counsel, who lost no time 
 in furnishing an abstract of the title, by 
 their letter of the 9th February, 1849, and 
 the bill was filed as soon as a reasonable 
 time had been allowed to defendant to con- 
 sider whether he would answer that letter.
 
 TIIUMrSON V. DULLES 
 
 *39S 
 
 And the cause was actually at issue before 
 the day for the last iiaynient had arriveil. 
 
 3. That k'jxal procecdintis were ueivssary. 
 not only to j^et in the lepil estate vested in 
 the intants, but to satisfy the defendant's 
 doubts: for it is evident that he retained 
 those doubts up to the tiuu' of the lu-arinj;. 
 and that, even if complainant had iK'en as 
 ready in 1S4.S as he was at the hearing, he 
 would have met with the same resistance. 
 So that the case presents, in fact, an ex- 
 ample of a purchaser, who would accept of 
 no title, but such as would lie pronounced 
 
 *396 
 good upon the hearing of a bill *for specific 
 performance; and scttinj: tip. as a dt-feia-e, 
 that delay whii-h he rcndenMl inevitable. 
 
 Lastly. The defendant's i»ossession was not 
 disturl>ed, or threatened, or ever in dau^rer: 
 and the delay of th»> conveyances, which is 
 the only matter of complaint, neither caused 
 him any loss, nor (lei)rive(l him of any op- 
 portunity of Rain. 
 
 Taber, Peti^rru. fur appellant, cited Mor- 
 phett V. Jones, 1 Swanst. 172; Palmer v. 
 Richardscm. 3 Strob. Kq. 10; 2 Story i:«|. § 
 776-7; .Vtk. on Tit. 'JO U\w Lib. 70; Rad- 
 cliffe v. Warrington, 12 Ves. 326; Reynolds 
 V. Nelson, 6 Mad. R. 26; Sujid. Vend. 282 
 et seq. ; Pinke v. Curteis, 4 Bro. C. C. 329; 
 Seton v. Slade, 7 Ves. 265 ; Langford v. Pitt. 
 2 P. Wms. 629; 6 Bro. P. Cas. 201: llog- 
 gart V. Scott, 2 Russ. & M. 293 ; Hepburn v. 
 Auld, 5 Cra. 262 ; Paton v. Rogers, 6 Mad. 
 256; Roach v. Rutherford. 4 Des. i:V6 ; 1 
 Sug. 415; Nokes v. Kilmorey, 1 De(J. & Sm. 
 444. 
 
 DeSaussure, contra, cited 2 Story, § M-O, 
 771-8; 1 Wheat. '204; 5 Ve.s. 736; Id. 818; 
 4 Ves. 667 : Heapy v. Hill. 1 C'ond. Eng. Ch. 
 R. 332; Watsou v. Reid. 4 Id. 404; Bene- 
 dict V. Lynch, 1 Johns. Ch. 370: 6 Wheat. 
 528; Taylor v. Brown, 2 Beav. 180; Perk- 
 ins v. Wright, 3 liar. & McII. 326; 2 Wheat. 
 290; Bryan v. Reed, 1 Dev. & Batt. 78; 2 
 Cox Eq. C. 221; Dick. 400; Southcombc v. 
 Exeter, 6 Hare, 21:1. 
 
 The opinion of the Court was delivered by 
 
 DI'NKIN, Ch. This Court is so well satis- 
 fied with the conclusions of the Chancellor, 
 upon the several legal i>ropositions disctissed 
 in the decree, that it is deemed unnecessary 
 to express more than a geni'ral concurrence 
 in the i)rinciples annoiuiced. And in the ai>- 
 plicatiou of those principles to many of the 
 questions involved, tlie Court is equally well 
 satisfied. The decree substantially deter- 
 mines, (and we think rightly.) the existence 
 and validity of the contract of Fi'brnary, 1847, 
 of whicli the complainant asks the specific 
 performance; that possession was taken by 
 the defendant under that contract, and that 
 
 ♦397 
 the plea of the *statute of frauds was inap- 
 plicable. It is further ruled, that when the 
 complainant entered into the contract, he 
 
 had a good equitable title to the premises, 
 of which he was in possession, anil which he 
 avrreed to convey to tile defendant. — the com- 
 plainant laid, in the language of the tlecree. 
 "an e<iuitable title, with the ability, at some 
 time, sooner or later, to make a good legal 
 title;" and furthermore, that "the contract 
 ltr«)ved did not |irovi«le for the making of ti- 
 tles by a specifieil time. I'here was in the 
 
 contract." says the Chancellor, "not only a 
 want of stipulation as to the time when titles 
 Wi're to Ik- made, but pos.session was t<» pre- 
 cede the title, and was taken accordingly." 
 The decree also detennines, after fully con- 
 sidering file defendant's exceptions to the 
 Master's re|iort of July 1, is."»l. that the com- 
 plainant had then a good le<^al title to tlie 
 liremises, and that, "if tliere is any inqieili- 
 nuMit to the enforcement of the contract of 
 sale, it does not consist in a present insuth- 
 eiency in tlie title, but must arise from some 
 otlier cause." The Chancellor then reviews 
 the correspondence, and the conduct of the 
 parties, from February, 1N47, to the latter 
 part of December, 1.S4S, ami concludes, that 
 in consequence of tiie negle<t or unnecessary 
 delay «)f the complainant, uiuler tlie circum- 
 stances, the defendant was well warranted 
 in his abandonment or surrender of the 
 premises, on January 1, ls49, and that the 
 Ciiinplainant was not entitled to the aid of 
 tliis Court. 
 
 Although, as .Mr. Sugdeii declares, "every 
 case of this nature must, in a great meas- 
 ure, depend upon its own particular circum- 
 stances," (p. 44.'>.) yet there are certain lead- 
 ing principles, which direct the juil'.;ment of 
 llie Court, in granting or refusing relief, 
 wiiere time is not an essential |»art of the 
 contract. These are clearly stated in tlie de- 
 cree. Where no time is fixed in the contract, 
 or where time is not essential, it will not. 
 Innvever. be i)ermitted to tlie pa'ty. who Is 
 to make the conveyance, t<» trifle with the 
 interests of the opposite party, by uniie^'es- 
 sary delay : and it is in the power of that 
 I)arty to fix some reasonable time, not ca- 
 priciously or with Intent to sur|>rise. but a 
 rea.sonable time according to the circum- 
 stances of the case, within which he will 
 
 •398 
 
 ♦expect the title to be made, at the peril ot 
 resciiuling the agreement. These smind prin- 
 ciples are abundantly sustained by the au- 
 thorities cit«>d. It remains only to adil. that, 
 after such pre-«Mnpt(U\v notlt-e. it becomes the 
 party notitie<i. if, from any cause, lie is un- 
 able strictly to comply, ti> apjily promptly 
 for the aid of the Court by filini.' his bill. 
 
 About the i»rincli>al facts, tin-re is no dis- 
 pute. As early as April, 1S47. the defendant, 
 having examined the complainant s papers, 
 was aware of tlu' defects in his legal title, 
 and brought them to the particular notice of 
 the complainant. In that year, however, he 
 went into i>ossession of part of the |)renilse.s, 
 and, in January, 1848, he took possession of 
 
 157
 
 *398 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 the whole, and planted and gathered the cropi 
 of that year. By the terms of his agree- 
 ment, he was to pay the complainant one 
 thousand dollars, on March 1, 1848. In his 
 letter from Philadelphia, of January 11, 1848, 
 he suggests to the complainant the propriety 
 of having the land papers prepared at once, 
 and when they are completed, submitted to 
 the defendant's legal adviser, Mr. Hutson, of 
 Orangeburgh, who would examine them, and 
 advise him, so that he should be prepared to 
 act. It does not appear, that the defendant 
 made his payment of March 1, 1848, al- 
 though, as the Chancellor has ruled, "the 
 making of titles was not a condition prece- 
 dent to the defendant's first payment, as he 
 seems to have supposed." We concur with 
 the Chancellor in this construction; and yet 
 the defendant may, very excusably, have sup- 
 posed that they were dependent covenants, 
 and the complainant may also very well have 
 supposed, that this was the extent of the 
 penalty he might incur, for not having the 
 title completed at that time. Certainly, the 
 complainant should have taken measures to 
 perfect his title prior to January, 1848, and 
 the duty was still more imperative during 
 that year. Viewing his conduct in the most 
 favorable light, he was guilty of neglect; 
 and the only inquiry is, as to the effect of 
 that neglect on the rights of the parties. 
 There is no arbitrary rule upon the subject. 
 It depends very much, not only upon the 
 situation and conduct of the parties, but 
 also upon the state of the title. In 1847, the 
 
 *399 
 *defendant was let into possession of part of 
 the premises, and in January. 1848, of the 
 whole, under the contract set forth in the 
 pleadings. He continued to use and culti- 
 vate the premises during these years. Early 
 in 1847, he was aware of the complainant's 
 equitable title, and became also informed of 
 the infirmity or defects in his legal title. 
 These were brought by him to the notice of 
 the complainant, in the spring of 1847 ; and 
 his entry into full possession in January, 
 1848, w-as done with perfect consciousness 
 that the legal title was yet incomplete. In 
 his letter of January 11, 1848, he says. "I 
 take the liberty of suggesting the propriety 
 of having the land papers prepared at once, 
 and if, when they are completed, they are 
 handed to Mr. Hutson, of Orangeburgh, w'ho 
 has attended to my law business, t&c." The 
 evidence affords strong reason to infer, that 
 the complainant, as the most ready and cer- 
 tain mode of complying with this suggestion, 
 addressed himself to the same professional 
 gentleman for the purpose of having the 
 papers prepared. An important defect in the 
 complainant's chain of title was the want 
 of a conveyance from the co-heirs of his de- 
 ceased mother, Mrs. Elizabeth Thompson, — 
 the partition of that estate, under which the 
 complainant had held exclusive possession 
 since 1839, having been informal. The deed 
 
 158 
 
 of conveyance for this purpose, to be execut- 
 ed by the several parties who were of age, 
 was adduced at the hearing. It is in the 
 hand-writing of Mr. Hutson, is dated by the 
 draftsman, as prepared for signature, in the 
 year 1848. The month was left in blank, 
 and also the year of Independence. Erom 
 which it is most probable that the deed was 
 prepared prior to July 4, 1848. This convey- 
 ance was executed by the parties on Decem- 
 ber 25, 1848, and the renunciation of inher- 
 itance wdthin fifteen days afterwards. 
 
 The other defects in the complainant's 
 legal title were not to be supplied by so plain 
 a process. A release from Mr. and Mrs. 
 Hampton was to be obtained, and a convey- 
 ance from the infant heir of William Sabb 
 Thompson ; and it became furthermore nec- 
 essary to establish by parol evidence the 
 legal title of the complainant in the interest 
 
 *400 
 of Thomas Sabb, or the extinguish*ment or 
 satisfaction of that interest. In the Spring 
 of 1848, Mrs. Hampton died, and the infancy 
 of her child added, very materially, to the 
 difficulty and embarrassment in perfecting 
 the legal title. It was for some time doubtful 
 in what mode these difficulties could be ob- 
 viated. So serious were they, that, in the 
 judgment of Mr. Hutson, they had become 
 insurmountable, and so, in the course of the 
 year, he informed the defendant ; for, on 
 December 11, 1848, he writes to the complain- 
 ant that he must relinquish the purchase, 
 (not as it would seem from the letter, on ac- 
 count of the delay in completing the legal 
 title,) but because of "being advised by his 
 attorney, after an examination of the com- 
 plainant'_^s papers, that a clear title could not 
 be made." It is now manifest, and it is so 
 adjudged, that in this opinion the legal ad- 
 viser of the defendant was mistaken. The 
 ditnculties have been removed, and the legal 
 title perfected. But the embarrassing state 
 of the title has always been recognized as 
 affording a reasonable excuse for delay, and 
 especially under the circumstances of this 
 case. Wliere "a purchaser is aware of the 
 objections to the title, and proceeds witli 
 the purchase, although the time fixed for the 
 completion of the contract may have elapsed, 
 and a much longer period may be requisite 
 in order to make a good title, he will be 
 held to have w^aived his right to object to the 
 delay, and not be enabled to resist specific 
 performance." See a collection of the cases 
 in a note to Seton v. Slade, 2 vol. 2 part, p. 
 15. ysn.nte and Tudor's Lead. Cases in Equity. 
 But the defendant, in his letter of December 
 11, 1848, for the first time, notifies the com- 
 plainant of his intention to relinquish the 
 purchase, for the reason therein stated ; and, 
 in his more formal communication of the 23d 
 of the same month, advises him, that if good 
 titles are not tendered by the 1st January, 
 he should consider the contract at an end; 
 and accordingly, on January 1, 1849, he in-
 
 THOMPSON V. DULLES 
 
 M03 
 
 forms him of the nliandonmtMit of the prem- 
 ises and «.f tlie coiitrart. It Is luirdly neees- 
 sary to say. tliat if it was tiie duty of tlie de- 
 fendant, after having' detennliicil t<> abandon 
 his purchase, unless tlie I.-khI title were com- 
 pleted, to give the complainant reasonahle 
 
 ♦401 
 notice of his intention, or, in *the lancuage 
 of the authorities, "to fix some reasonahle 
 time, aoeordin}; to the eircumstaixes of the 
 case, within which he would exjiei t the title 
 to be made, at the peril of n'scindin^ the con- 
 tract ;" this notice was entirely insullicient. 
 The defendant had lieen, during: the whole 
 year, in the full and undisturlu'd enjoyment 
 of the prenuscs whi< h hi« had a^'recd to i>ur- 
 chase. He had paid no iiart of the purchase 
 money, althouirh one tliousaiid dollars had 
 been payable on March 1, IMS. In bis letter 
 of April 1.3, he refers, it is tru«', to the de- 
 \ay in relation to the titles, but he says. "I 
 am ready now, as I have been, to make the 
 tirst payment when the titles wen- i»rcparcd. 
 and I only wait your action." Tlu- complain- 
 ant nuj,dit very well understand frouj this, 
 that the defendant intended to make no \r,iy- 
 ment until the title was comi»leted. Hut 
 there is no evidence of his bein;; a|)prised of 
 any more serious constMiuence <»f his delay, 
 until the receipt of the defendant's letter of 
 Deceml)er 11, communicatinj; the le^^al opin- 
 ion that a clear title could not be matle. and 
 the notice of 2'.U\ Dccemlicr. that unless );ood 
 titles were made within ei.i,'bt days, the con- 
 tract would be rescinded. From this period, 
 certainly, the complainant .seems to liave 
 been sutliciently on the alert, not only in 
 havinfj his title completed, but, as we all 
 think, in applyini: for the aid of this Court in 
 enforciuf? the performance of the contract. 
 In the letter of his solicitors, of February 
 9. 184!). they inform the (lefen<lant of the 
 precise nature of the ditticullies in relation 
 to the title, of the causes of delay, and of the 
 mode of removinj; them, and intimate, if 
 their opinion should not be satisfactory, ns to 
 bis oMi;,'atioii to complete the contract, that 
 he nii;:iit srlect the forum, either Of the 
 State or Federal tribunals, in which the mat- 
 ter mi«bt be adjudicated. The bill was ac- 
 cordinirly filed in Au^rust succeedinsi. 
 
 A recent decision in the Knylish Court of 
 Chancery has been brought to our notice, not 
 as ennnciatiuf; any novel principle, but as 
 e.xhibitinjr the jud;,Mnent of an able Chan- 
 lellor in the application of well known and 
 established rules. Southcond) v. The Hisliop 
 of Exeter, (C. Hare. L'i;!.i :;i Eni;. Ch. Hep. 
 LTJ. is very analogous, in many of the cir- 
 
 ♦402 
 cumstances. to this case. ♦Tlie bill was by 
 the vendors, for the specific performance of a 
 contract. It was dated October 1(5. lS-10. 
 The purchaser was to pay L'O per cent, de- 
 posit, and the balance en the iMltli September, 
 1841, at which time the contract was to be 
 completed, and the purchaser to have jios- 
 
 se.sslon. The abstract of ritle was delivered 
 on the ."{Oth ()(tol»er. 1S40. After some cor- 
 respondence in relation to the title, the de- 
 fendant, on Auu'ust '20, 1S41. inft>rmed the 
 comiilalnant.s, that his h';ral advisers regard- 
 ed the title as defiMtlve. ami tlesired the 
 plaintiffs to regard that letter as iioti«-e of 
 his Intention to res<-ind the (.xMitract. Sul>- 
 sts|uent correspondence. Iiowever, »'nsued. but 
 always under protest that the defendant re- 
 lied on this iiotlci'. The ctirres|Kindence was 
 not com-biihHi until January 17. ls4l!. when 
 the defen<lant's solhitors Informed the ven- 
 •lors" solicitors that their client would fall 
 back to his position untler the rescinded t\m- 
 tract, and referre<l to tlie letter of Au;;ust 
 20, 1S41. 
 
 The bill was not tiled until .".oth .\u;:ust. 
 l.*>4.'{. The Vi<v-('hancellor (.Sir .lames 
 Wi;,'ram) says, "the inisltion of the vendors 
 and purchaser, in this case, was this: on the 
 -<»tb Au;:ust, 1S41. the purchaser bad taken 
 upon himself to declare the contract at an end, 
 &<•.;" and then adverts to the other circum- 
 stances. 'Now. if," says he. -the plaintiffs 
 had, immediately on the rinelpt of the Bish- 
 op's letter of tlu' joth Auirust, 1S41. t.r had, 
 within a reasonable time aff«-rwar<ls. tiled 
 their bill, I could have had no doubt of the 
 vendors' ri;:ht to the common refeivnce ais 
 to title." The bill was. ln>wever. dismis.siMl 
 on the ground of the delay from ITtb Jan- 
 uary, l.s4li, till .'WMh An^Mist. 1S4:!. -I dismiss 
 the bill." says the \'ice-('hancellor. ••u|ion the 
 sole ;;round of the vendors' delay In tiliin; the 
 bill, after the purcbast'r had irlve him tlistlnct 
 notice tliat he as.serted a ri;:ht to rescind 
 the contract, and considered It at an end." 
 Accordiiifr to this decision, the complainant, 
 in the cause before us. was entitled to the 
 Common reference of title: ami It belli;; well 
 settled that the vendor Is entltle<l to a de<ri'e, 
 if he cjin make out the title at the time of 
 the Master's report. w»> are of opinion, that 
 the plaintiff is entitled to the aid which ho 
 seeks. 
 
 •403 
 
 *It is ordered and deiieeil. that upon the 
 execution, by the com|ilainant, of a <-onvey- 
 ance in fee sim|ile of the preiHls(>s descrlU»d 
 In the ]ileadin^s. with the usual coven:ints, 
 and delivery of the same to the defendant, 
 or Ills solbitors. th«' defendant pay to the 
 complainant the purchase money, to wit, the 
 sum of six thousand ili>llars. with Interest 
 on the several Instalments as they sucee.sslve- 
 ly b(>canie due. according to the contract rec- 
 ognized and I'stablished by the Circuit de- 
 cree, and that the premi.ses stand pledged 
 for the ]iayment of the .same. 
 
 It Is tlnally order«'d and tleini-d. that the 
 costs, up to the tilliiK of the Chancellor's Cir- 
 cuit decn-e. be paid hy the coinplainiint. the 
 subseipiently accndnp costs by the defendant. 
 
 1>A1{<;A\ an.. WAUId.AU, CC, concur- 
 red. 
 
 1 >e<ree reversed. 
 
 1.'9
 
 CASES! X 1^: (1 U I T Y 
 
 AlttilED AM) nETEHMINKI) IN THE 
 
 COURT OF APPEALS 
 
 AT COLUMBIA, SUL'TH CAKOLIXA— MAY TKKM, 1853. 
 
 CllANCKM.ORS PrI-.SICN'T. 
 
 Hon. .loP. JOEINSTON. 
 " HKN.I. r. IMNKIX. 
 
 " (ii:<)U(;i-: w. i>ak<;ax, 
 
 " F. II. W AUDI. AW. 
 
 5 Rich. Eq. *405 
 
 ♦MARTHA F. OWK.NS and Otliers v. E. G. 
 
 SLMI'SOX and (niuMs. 
 
 (Columbia. May Term, 18."»3.) 
 
 [Wills (®=>714.1 
 
 A. B.. wlio was old and intiiin, loqiicsted C. 
 D.. her frii-nd and ♦•(nincctiou. tu take ui) an 
 f.Xf'CUtiKn. for about ij^SOO, \\hi<'h was pressiii!; 
 her: — lie did .so, and she H'-^ve liini a confcs.sion 
 of judiumont for .$1,000. He aft<'rwards. at her 
 refjuest, took up another e.xeoution against lier, 
 for about Jj^l'iO. and she gave hiiu anotiier con- 
 fession, for -YrioO. A. B. afterwards made her 
 will, bequeathing to C. 1>. ."<1,1'(K). ami direetihg 
 payment of lier debts out of the residue of her 
 «'state: — Mild, upon the evidence, that C. D. 
 was not entitled to hohl. as creditor of .V. B., 
 the two judgments he had taken up. and the two 
 fonfep.sions al.so— that he could claim only tlic 
 two confessions: — Held, further, that the legacy 
 was not given as satisfaction of the two con- 
 fessions. 
 
 |Kd. Note. — For other cases, see Wills, Cent. 
 Dig. § 1702; Dec. Dig. <®=3714.1 
 
 WVillK C=>4!U).l 
 
 Parol evitlence was inadmissil>]e. to sliow 
 that the legacy was intended as satisfaction. 
 
 |Kd. Note. — For other cases, see Wills, Cent. 
 Dig. S in."j;j: Dec. Dig. <S=>4!>0.] 
 
 \Milh C=3714.] 
 
 That the legac.v is less th:ui the debt, and 
 that the testator m.-ikes ])rovisi(Mi for the pay- 
 ment of debts, is sullicient to destroy the pre- 
 sumption that the legacy was intended as satis- 
 taition. 
 
 I Kd. Note.— Cited in Sullivan v. Latimer, 38 
 S. C. l<i«i. 17 S. E. 701. 
 
 For other cases, see Wills. Cent. Dig. %% 
 16itS-1703; Dec. Dig. ©=9714. 1 
 
 Before Duiikin, Ch., at Abiiovillc .Tune, 
 lS.-._'. 
 
 Dunkiii, CU. Sarah Cuiiiiiiigliani departed 
 Ibis life on the L'Nth April, l.s.-»l. She was. at 
 
 *406 
 the time <if licr death. scveiity-*tW(i years of 
 
 age; had been, for many year.*;, Inlirni. ami 
 was, latterly, in many respects, of weak mind. 
 Iler will bears date the KJth .January, 1n."»1. 
 By the first clause, after certain specific be- 
 (luest.s, and a direction of sale, she l)e<iueaths 
 twelve hundred dollars to the defendant. Dr. 
 Edward Simpson, and then directs that ti>e 
 balance of her e.state, after payment of her 
 dei)ts, be divided between the children of 
 Elizabeth Owens, who are two infants of ten- 
 der years, the coniidainants in these procoed- 
 in{j;s.(a) The defendant and Thomas Payne 
 were api)ointed executors, the latter of whom 
 never qualitied. Immediately after the deatli 
 of the testatrix, the defendant caused the 
 real and personal estate of the testatrix to 
 l)e levied on by the sherift". under executions 
 in Ids otKce, owned by the defendant, and, 
 within a week after her decease — to wit. May 
 nth. 1851 — the property was sold, and pur- 
 clui.sed i>y the defendant, for tlie sum of $.'>,- 
 871). On tile l.">th May. 1S."»1, defendant prov- 
 ed the will and (inalitied as »'xecutor, and on 
 .'JOth of .same month, a sale was made by him 
 of tile residue of tlie personalty, for .<.'!:!4.4G, 
 at which sale, it is alleged, the defendant was 
 the i)rincii»al imrchaser; but the sale bill 
 was not put in evidence. On the lilst Janu- 
 
 {n) Tiie will, after certain bequests of house- 
 hold furniture, is as follows: "It is ray will 
 and desire, that all the balance of my estate 
 both real and personal, be sold at the dis<Tetiou 
 of my e.Kecutors. and l)e distriiiuted as follows, 
 viz: (ith. I do give and becpieath to Dr. IMward 
 .Simpson twelve hundred dollars. 7th. It is my 
 will and d<sire that all the l)alance of my estate, 
 after paying my just deiits. lie equally* divided 
 l)elween the children of Eli/.alieth Owens. Sth. 
 -Vnd last, I do hereby appoint n-y friend. Dr. 
 Kdward .'"Jimpson, and my friend, Thomas 
 Payne, executors of this, my last will and testa- 
 nient." 
 
 ©zisFor other cases see same loplc uuU KEY-NUMBKK iD all Key-Numbered Digests aud InUexos 
 5 Klcii.Ey.— 11 
 
 161
 
 *-106 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 ai-y, 1852, (less than nine months after the 
 death of the testatrix,) the defendant says 
 he had a regular account and settlement with 
 the Ordinary, "by which it will appear that, 
 after the payment of the executions aforesaid, 
 the assets were not sufficient to pay the lega- 
 cy to the defendant, by near two hundred dol- 
 lars, which legacy, under the will, was to be 
 first paid. The defendant, therefore, insists 
 that the complainants, who are merely residu- 
 ary legatees under the will, have no avail- 
 able interest in the estate of the said Sarah 
 
 *407 
 Cun*ningham, and that there is no necessity 
 for a new accounting in this Court, in rela- 
 tion to the said estate." It appeared, by 
 the testimony of Allen Vance, that at the 
 sale of Sarah Cunningham's property, the de- 
 fendant said to witness that the negroes 
 would be sold, and asked witness not to bid 
 against him ; that he would take it as a fa- 
 vor if he would not bid against him; that he 
 wished to buy the negroes himself; the wit- 
 ness did not consent, however, not to bid 
 against defendant, as defendant declined the 
 terms proposed by witness. The negroes 
 brought a fine price. Under these circum- 
 stances, it is not remarkable that the friends 
 of the /complainants should desire an inquiry 
 into the regularity of the transactions by 
 which the bountiful intentions of the testa- 
 trix towards them have become illusory. 
 
 The testatrix was a resident of Abbeville 
 district, being possessed of a plantation and 
 n few slaves, who, from indulgence, were of 
 very little value to her. Being indebted to 
 Joel Smith, she confessed a judgment to him, 
 on the 4th May, 1847, for eight hundred dol- 
 lars, fifteen cents, with interest from 1st Jan. 
 previous, on which execution was lodged in 
 Abbeville district. On the 28th March, 1848, 
 the testatrix confessed a judgment to defend- 
 ant for one thousand dollars, with interest 
 from the day of the confession. On the fol- 
 lowing day, an execution was lodged in the 
 office of the sheriff of Laurens district, but 
 was not lodged with the sherifl: of Abbeville 
 until after the death of the testatrix. On 
 the day last mentioned, Joel Smith's judg- 
 ment was assigned to the defendant, who 
 claims the amount of both judgments from 
 the estate of the testatrix. 
 
 On this subject, the answer of the defend- 
 ant states, among other things, that the tes- 
 tatrix was an old widowed lady of seventy- 
 two or three years of age; that she owned a 
 small tract of land and five slaves, to wit: 
 one man and four women; that she was 
 ' much attached to her negroes, and very in- 
 dulgent to them, and, for some time prior 
 to 1848, had not made a support ; that her 
 nearest relations were Dr. Robert Campbell, 
 of Laurens district, a brother, whose daugh- 
 
 *408 
 ter witness had mar*ried, some other neph- 
 ews, and the complainants, who are the 
 great-grandchildren of the testatrix's deceas- 
 162 
 
 ed brother, Angus Campbell ; that "the tes- 
 tatrix was greatly troubled and excited, 
 when, on the 5th January, 1848, the sheriff 
 of Abbeville district, under the execution of 
 Joel Smith, made a levy upon her land and 
 negro woman, Lucinda." "Upon that occa- 
 sion, when she saw the property was about 
 to be sold, and her cherished object, of keep- 
 ing her negroes togetlier until her death, de- 
 feated, testatrix went to Laurens district, 
 to the house of her brothei-, the said Dr. Rob- 
 ert Campbell, to see this defendant, who was 
 there living with his father-in-law, the said 
 Dr. Campbell." She stated to him her con- 
 dition and distresses — "that her property was 
 about to be sold, under an execution which 
 Joel Smith had obtained against her; that 
 she was very desirous to have a home whilf; 
 she lived," &c. "Testatrix proposed to de- 
 fendant, that if he would assist her to keep 
 her property together — if he would procure 
 an assignment to himself of the Smith judg- 
 ment, and wait for the payment of it until 
 her death, she would give him a thousand 
 dollars, to be paid at her death, and she pro- 
 posed to secure him the thousand dollars by 
 any writing which would accomplish the pur- 
 pose." "Defendant thanked her for her kind- 
 ness," tfec. He "then immediately went to 
 Stoney Point, in Abbeville district, to see Joel 
 Smith, and induce him, if possible, to stay 
 his execution for a time, and, upon defend- 
 ant's representing to him that the money 
 should be paid in the Spring, he consented to 
 wait until sales' day in April then next." 
 Defendant borrowed the money, by giving his 
 own note, with security. About the same 
 time, he mentioned the matter to a relative 
 acquainted with legal forms, stated the prop- 
 osition of the testatrix, and asked his ad- 
 vice "as to what paper ought to be prepared 
 and signed, to carry out the agreement." 
 "He advised a confession of judgment, which 
 could be stayed until her death." '"He ac- 
 cordingly procured a blank confession from 
 a legal friend, who also concurred in the 
 advice, and, on the 28th March, 1848, accom- 
 panied by Dr. Campbell, he went over to Ab- 
 
 *409 
 beville, to the house of testatrix. *The agree- 
 ment was rehearsed, and she signed the note 
 and confession of judgment in his presence. 
 Dr. Campbell suggested, at the time, that the 
 note would bear interest, and that, as the 
 money was only to be paid at her death, some 
 understanding ought to be had upon that ob- 
 ject. Testatrix was unwilling that interest 
 should run, and the defendant gave her an 
 instrument in writing, that he would not ex- 
 act the interest." On the same day he went 
 to Joel Smith's, paid him the amount due on 
 the execution, and took his receipt. The 
 assignment was executed afterwards, but 
 dated as of that date. 
 
 From this statement, it would appear that 
 the moving cause of the testatrix's distress, 
 when she applied to the defendant in Janu-
 
 OWEXS V. SIMPSON 
 
 Mil 
 
 ary, 1S48, was her apprehension of being 
 broken up by Joel Smitli, who then lield the 
 only execution a^'aiust lier property. "She 
 was ureal ly troubled and exciteil," says the 
 defendant, •wiien. on tlie r.tl» January. 1.S4S, 
 tlu> slieriff of Abbeville, under tins execution, 
 levied upon lier lanil and lier ne«ro woman 
 laitiniia." Siie went to (h'fendant. told Idni 
 tier i>r<iperty was about to be sold under tids 
 I'xerution, and tliereuiion made tlie proposal 
 stated. Tlie defendant "went immediatt'ly 
 to Stoney I'oint, to see Joel Smith, and in- 
 duce liiui. if possible, to stay his exe<uti<»n 
 for a time." Now, Joel Smith was examined 
 as a witness iiefore tlie Commissioner. On 
 his cross-examination, he .says the testatrix 
 was "old and eliildlsh. She was desirous of 
 ktH'piiif.' her projierty to^'ether; is conviiK-ed 
 that the intlueiia> of her negroes i»n'venteil 
 her from selliii}; them; that she always ap- 
 pealed to witness for induiiieiice : that he was 
 certain his debt was sure. I>r. ("amiibell and 
 witness concluded that the lu>st tliiiij,' that 
 eould be done for her was that the iiroperty 
 siiould be sold, and tlu'reiipon a levy was 
 ordered. I'ayne (nephew of testatrixi may 
 also have spoken to witness as to the pro- 
 priety of orderinj; a levy. In havinj? tlie 
 levy made, witness was, to some extent, in- 
 fluenced l)y the representations of her frit'iids. 
 His object was not to injun', but to benetit 
 her. by the course he took. He thinks he 
 
 *410 
 wt)uld *have sold the iiropcrty twelve niontlis 
 earlier, had it not been for her friends." 
 
 Dr. Campbells evidence accompanies this 
 decree. lie states his presence when the 
 SI.OOO note was si;jcned. It was drawn eitlu'r 
 I y witness or the defi'iidant. He said he had 
 no particular conversation with liie t<'statrix 
 upon the subject. She was at witness's 
 hou.se. She was uneasy about Smith's jud^'- 
 ment, and wanted it satisfied, (tills was prob- 
 ably at the Hrst meetinj;.) He says, tliat 
 when the confession was given, defendant 
 broufiht tlu' papers ready. She wishetl the 
 Smith judjiiiient paid olT ; it was p;iid olY, 
 but it was kept as a lien upon the pnii>erty. 
 "Witness told her that she mi^'ht certainly 
 be ea.sy for a year; that defendant would 
 be easy with her. Tlie .'jtl.dOO had notliiii;; to 
 do witli the Smith jud^'iiieiit. The .51,(t()() 
 was ;:iven to defendant in considt'ration of 
 what lie had done, was to di', and his eonnec- 
 tion in the family. It was .1 irratuity f(U- 
 .services and connection in the family."' He 
 says afterwards. "Tlie .'!;i.(M»(> was a free 
 uift." Witness says "lu> never liked the con- 
 fession, and preferred it should lie a «leed of 
 j;ift. and be (witness) jiroposerl to draw it; 
 but the defeiubiiit had consulled soiiu- of his 
 friends. Testatrix did not object to the form 
 of a gift, as it would be the .same." 
 
 It seems that, some time after this trans- 
 action, to wit: on the '2.".d October, 1S4S, one 
 'I'homas Stewart obtained a jiidmiienf ;iL'aiiist 
 testatrix for one hundred Uollars, with inter- j 
 
 est from sth February, 1844. and lodged ex- 
 i ecutlon thertHju in the ottiiv of the sheriff of 
 AblK'ville. On the L'Tih February, 1S41», the 
 testatrix confe.sstHl a jutlgnient to the defend- 
 ant for the sum of live hundrtnl dollars, with 
 Interest from that day. on which Judgment 
 execution was lodge«l on the 1st .Mareh. 1S4J>, 
 In the «itHee of the sherilT of Laurens district. 
 It Is charged that tin- d«'fendant had agrinnl 
 to pay off aiKl satisfy the Stewart execution, 
 and that the latter Jmlgnient was oidy In- 
 tended as an Imlemnify or M'curlty ti> him. 
 The (h'fendant 's answer Is very unich at 
 length, and It l.s proiMisi-^l only to state the 
 
 •411 
 substaiHv 'of It, whieh is. that Stewart had 
 h'vied on tlie land of ti-statrix. and she again 
 ai»plied to defentlant for advlee and a.sKl.sl- 
 aiice. rroiMis«sl, If he wtmld get an assign- 
 ment of the Stewart jutlgnieiit. and wait for 
 the payment till her death, and would take 
 charge of herself, and her proiKTty, Jtc., 
 "she would give him a confe.s.slon of Judgment 
 for live hundred dollars, whbh was to be 
 stahl until lu-r death, but whbh was to bear 
 interest." That on I^Cth February, 1M!». de- 
 fendant having already paid a part of the 
 Stewart exe<ution, paid Stewart the remaind- 
 er, and took his nt-eipt in full for the money 
 paid, which appears attaehe<l to the exwu- 
 tion. That on the day after the last payment 
 defendant went with I>r. John I*. Watts to the 
 house of testatrix, and he witnessed the con- 
 fession of judgment. 
 
 Dr. Watt-s was «>xamlntHl before me. and 
 testlti«'d, that he drew the note for J.'iOO. 
 Testatrix s«H'nied grateful for defendant's 
 kindness. Testatrix said "she had given de- 
 fendant the hve hundre«l dollars for what he 
 had done, and what he had iiromi.sed to do 
 for her. She spoke of the Stewart case and 
 of the Smith Judgment. The.se were the 
 two ca.ses sjiokeii of. and which .simmuihI to 
 prey on her mind. Witness thought the J.Vmi 
 was to be in addition to what defendant 
 had paitl. Testiitrix seeme<l to think the 
 Smith and Stewart Judgments were sjitl.s- 
 tied. and she was satlstied. Her gratitude 
 to d»'fendant seemed to be In c»uise«|UeiK"e of 
 his having settled those riaims. He was to 
 take care of her and her property until lier 
 death." iVc. "Witness beard nothing of the 
 compliment to be made to defemlanl, until he 
 went to the hou.se of testatrix. Deft'iidant 
 was to hold these matters — the Smith and 
 Stewart judgments — as It were on a .stay, and 
 was to reii'lve the the hundred dollars for 
 having settled tbem." This last statement 
 the witness relteated twice over, with jKisitlve- 
 ness and ilistinetness. 
 
 So far as the Court can gather from the 
 defendant's answer, the ]iroposition, in Janu- 
 ary. 1S4S. was that the defendant should 
 "aid testatrix in keeiilng her i»ro|>erty togeth- 
 er tin her death, slioubl i»ay off the Smith 
 judgment.' and tlieii. at her de;ith. the de- 
 fendant bhould be paid uue thousand dollars. 
 
 16a
 
 *412 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 •412 
 The (ie*fendant agreed to gratify her wishes, 
 as far as in liis power, and she gave him a 
 note and confessed judgment for one thou- 
 sand dollars. But, within less than eleven 
 months after this agreement, testatrix's land 
 was levied on, and about to be sold, xinder 
 an execution for one hundred dollars, or 
 thereabouts. There was no other lien upon 
 her property, nor does it appear that any 
 other debt of any consequence existed. Yet 
 the defendant does not a^i^pear to have 
 thought himself bound to aid her in keeping 
 her property together until her death, by 
 interfering in this case. But he says she 
 applied to him, and "repeated what she had 
 previously said to the defendant, upon the 
 occasion oF the levy under Joel Smith's 
 judgment," &c., and said that, "if he would 
 assist her to keep her property together dur- 
 ing her life — if he would procure an assign- 
 ment to himself of the Stewart judgment, 
 as he had previously done the Smith judg- 
 ment, and wait for the payment of it until 
 her death, and take a general charge," &c. — 
 "she would give him a confession, &c., for 
 $500, which was to be staid until her death, 
 but which was to bear interest." Whatever 
 may have been the impressions of the defend- 
 ant, it was manifestly the settled conviction 
 of the witness to whom his answer specially 
 refers. Dr. John P. Watts, that the five hun- 
 dred dollars was all that the defendant was 
 to receive in the way of gratuity. "Mrs. 
 Cunningham," (testatrix,) says Dr. Watts, 
 "seemed very grateful for his (defendant's) 
 kindness. She said she had given him the 
 five hundred dollars for what he had done, 
 and what he had promised to do for her. She 
 spoke of the Stewart case and the Smith 
 judgment — these were the cases spoken of," 
 «S:c.— and he concludes his evidence by twice 
 repeating "that the defendant was to hold 
 the Smith and Stewart judgments, as it were, 
 on a stay, and was to receive the $500 for 
 having settled them." 
 
 Another witness, W. B. Merriwether, testi- 
 fied that he lived within half a mile of testa- 
 trix, and knew something of her affairs ; 
 heard her repeatedly say what she owed ; 
 that she owed a judgment to Joel Smith for 
 $800 or $900, and a judgment to Thomas Ste- 
 wart, for about $130; she said she had 
 
 *413 
 * Joel Smith's judgment settled ; "that de- 
 fendant had taken it up; that she had given 
 the defendant a confession for $1,000 for that 
 purpose." "One morning testatrix sent for 
 witness ; he went ; she said Stewart was 
 pushing his judgment, and she wished wit- 
 ness to go and see Stewart, and get him to 
 wait," &c. In a few days after, this witness 
 saw her, "when she said that she had paid 
 the Stewart judgment, through defendant, by 
 giving him a confession for $500, to pay him 
 for the Stewart judgment and all her other 
 debts. There were some debts then against 
 
 164 
 
 her not in judgment. She owed Red a debt 
 of some seven or eight dollars, which defend- 
 ant afterwards paid." "In her conversation 
 about the Smith judgment, she said that to 
 the confession for that debt, and also to the 
 confession for $500, Dr. Cami^bell and Dr. 
 Watts were witnesses ; that she owed no- 
 body but the defendant." This witness fur- 
 ther said, that "he was at defendant's house 
 when the old lady (testatrix) died. The 
 morning after her death he had a conversa- 
 tion with defendant, as to what the estate of 
 testatrix owed him, and defendant said it 
 owed him either eighteen hundred or two 
 thousand dollars. This conversation was 
 brought about by the defendant's asking wit- 
 ness how to proceed: whether he could sell 
 the property under his execution, &c. De- 
 fendant said he had judgments against the 
 estate to that amount; did not say in whose 
 names they were." 
 
 Another witness, M. G. Overby, testified 
 that "he had a conversation with defendant 
 the night of testatrix's death, before her 
 death. Defendant said he had paid off the 
 Smith judgment and the Stewart debt also, 
 and that he had secured himself by confes- 
 sions, and, in the ari'angement, had got one 
 hundred dollars advantage, as a gift or do- 
 nation for his services in paying off the 
 Smith judgment," &c. "He also said he had 
 paid off the Stewart case, and the old lady 
 had given him $500 for paying it off." From 
 the report of this witness's evidence, he 
 seems to have been closely cross-examined, 
 but it is not perceived that his testimony 
 materially varies. He said also, that testa- 
 trix was his aunt by marriage, and that the 
 
 *414 
 impression *made upon his mind, in conver- 
 sations with her, was that she owed about 
 twelve hundred dollars. There is much other 
 evidence, which appears in the report. In 
 the view which the Court will hereafter pre- 
 sent, it seems most important to ascertain 
 what were the impressions of the testatrix 
 in relation to these transactions, when she 
 made her will in January, 1851. By that 
 instrument, she bequeathed to the defendant 
 the sum of twelve hundred dollars. A wit- 
 ness, Thomas R. Puckett, who was present 
 when the instructions were given and the 
 will drawn, testified, among other things, 
 that the instrument was drawn by Gen. Gil- 
 lam, who had been sent for, for that purpose. 
 When he asked for the outlines, "the first 
 item was, she wanted defendant to have 
 $1,200, to pay him for his trouble." She aft- 
 erwards repeated that "she desired that (the 
 $1,200) for defendant for all his trouble." 
 
 Without dissecting the testimony, or com- 
 menting further upon the answers, it is evi- 
 dent from all, that whatever the defendant 
 was to receive, over and above the amount 
 which he paid on the judgments of Joel 
 Smith and Thomas Stewart, was intended 
 and accepted as a gratuity. This is sub-
 
 OWENS V. SIMPSON 
 
 *-117 
 
 stantially the result of all the testimony. 
 Any other acts of the defemlaut were, per- 
 haiKS. not mure than Dr. Caniphell had ren- 
 dered, and other relatives were willing; to 
 render. In comparinK the eviilence, it is not 
 very easy to deterniiiie what the defendant 
 supposed was the extent of tliis gratuity. He 
 certainly paid Joi'l Snutli about nine hundred 
 dollars, and the testatri.x gave him a con- 
 fession for one thousand dollars. Overhy 
 says defendant told him he had paid tlie 
 Smith judgment hy a confession, and, in the 
 arrangement, had obtained a gratuity of one 
 hundred dollars. Dr. Watts, wiio is defend- 
 ant's witness, says, that when he and defend- 
 ant went to the house of testatri.x. to get the 
 confession of ^~>(H). in February, isp.t. she 
 stated that this .$.")()() was a gift to defendant 
 for what he had done, and had prumi.MMl to 
 do; that he was to receive this in atldition 
 to what he had paid, in taking up the judg- 
 ments of Smith and Stewart; he was to re- 
 ceive the .$500 for having settled them. On 
 
 *415 
 the other *haiid. Dr. Campbell certainly re- 
 garded the .$1,000 as a gift over and above 
 the Smith judgment. lie testifies nothing, 
 of course, about the .$.">00 confession: but, 
 as has been intimate<l, whatever may have 
 been the impressions of the defendant, it 
 can scarcely be doubted, after the evidence 
 of Dr. Watts, what were the views of the 
 testatrix, when she gave the confession of 
 $."•00 for having settled the Smith and Stew- 
 art judgments — she did not understand that 
 she had already given the defendant one 
 thousand dollars for having settled the Smith 
 judgment. The Court is well satisfied, from 
 the evidence, that when the testatrix made 
 her will, in .January, 1851, she felt under 
 great obligations to the defendant for his 
 liindness and his trouble, and was not un- 
 mindful of their family conutH-tions. She 
 had promised that, at her death, he should 
 be remunerated. Whether she had in mind, 
 or memory, any consciousness of any par- 
 ticular sum or amount, which she had prom- 
 ised, it is impossible to determine. Hut she 
 becpieathed to the defendant the sum of 
 twelve hundred dollars, which, she declared 
 to the draftsman, was to the defendant for 
 all his trouble. 
 
 "Satisfaction," says Mr. .Tu.stice Story, 
 (Story K(i. § 10!lf>,) "may 1k> defined in Kcpiity 
 to be the donation of a thing, with the in- 
 tention, expressed or implied, that it is to be 
 an extinguishment of some existing right or 
 claim of tile donee. It usually arises, as a 
 matter of presumption, where a man, being 
 inider an obligation to do an act, (as to pay 
 money,) does that by will, which is capalde 
 of being considered as a performance or sat- 
 isfaction of it, the thing jierformed iH-lng 
 ejusdem generis with that which be had en- 
 gaged to iterfctrm. Tuder such circumstanc- 
 es, and in the absence of all ciunitervailing 
 circumstances, the ordinary presumption iu 
 
 I Court.s of Equity i.s, that the testator has 
 done the act iu .s^itisfaetion of his obligation." 
 
 I Again, (§ 1100,) "The donation is held to be 
 a .satisfaction, uules.s that conclusion is re- 
 pelled by the nature of the gift, the terms of 
 the will, or the attendant circumstances" 
 A distinction is noticed In'tween saitisf.-ictlon, 
 proi)erly so <-alle<l and i-a.ses of the penyrm- 
 auce of agreements or covenants. Iu Che 
 
 •416 
 former •case, the donation is intended as a 
 substitute or eipdvah-nt for the contract; iu 
 the latter as a fulfilment of It. The Court 
 is strongly inclined t») the conviction, that 
 both the transactions — viz., the confession of 
 $1,000 and the confession of $.'i(K»— could, at 
 most, be regarded as mere voluntary agree- 
 ments or i»romises, on the part of testatrix, 
 to pay at lier death. Indeed, this is sul)- 
 stantlally admitte«l, and that the fornj adopt- 
 ed was merely u .security for the i>erform- 
 auce of the agreement. It Is tjuite manifest 
 that tljey were so regarded by the testatri.x. 
 The Court Is also satisfietl, from the testi- 
 mony, that, when the testatrix gave the con- 
 fession for $i5(K), it was not intended l>y her 
 that this sum, given for defendants servlcvs. 
 in taking up the Smith and Stewart judg- 
 ments, was to be in addition to a sum (if 
 one thousand dollars: or, iu other words, 
 that when the testatrix signed the confe.sslon 
 for If5(R», in the pn-scnce of Dr. Watts, .slie 
 did not understand that the defendant was 
 to receive the amount paid to Smith, with 
 interest, the amount paid to Stewart, with 
 interest, the five hundred dollars, with inter- 
 est, and, in addition, a gratuity of one tliou- 
 sand dollars. According to the jHisltive 
 statement of Dr. Watts, it was rehearsed 
 that the confession of $.'»00 was for his serv- 
 ices in taking ui* both judgments. Tlie de- 
 fendant cannot, therefore, tlaim the amount 
 of both confessions as a gratuity for his serv- 
 ices. If he be regarded as a creilitor, the 
 legacy of twelve hundred dollars is a larger 
 amoiuit than was due, was deilared to be for 
 the same consideration, and mu.st In.' regard- 
 ed as a satisfaction. On the other hand, the 
 legacy may be regarded as at one** an ample 
 and generous fulfilment of a voluntary agrt*e- 
 nient or promise to the ilefendant, and a 
 gratification of her fiH'llngs for his kindness. 
 Although the ti'statrix was grateful to the 
 defendant, and attached to his family, yet it 
 Is evident, both from the will an<l the evi- 
 dence, that she had other objects of attach- 
 ment, and whom she intendeil to be re<ipi- 
 ents of her txiunty. It was said, too, at the 
 hearing, that the mother of the complain- 
 ants had resided with the testatrix from the 
 age of fourteen years, till her marriage with 
 complainants" father. After the lega<y to 
 
 •417 
 •the defendant, and the payment ot her just 
 th'bts, she dln'<ts the balance of her estate 
 to be e<pially divided betwiH'U the complain- 
 auts. The claims of the defendant would 
 
 165
 
 *417 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 uot only exhaust the proceeds of the estate, 
 (which was sold at a fair price,) but they 
 would be iusuflicient to satisfy them. On the 
 other hand, to regard the defendant as en- 
 titled to the sums paid to yniith and to 
 Stewart, with interest, as well as the legacy 
 of twelve hundred dollars, is in conformity 
 with the views or declarations of the testa- 
 trix, as to the amount of her indebtedness 
 at the tirfie of her death, and a fulfilment 
 of her intentions of bounty, both in regard 
 to the defendant and the complainants. 
 
 It is ordered and decreed, that an account 
 be taken by the Commissioner of the defend- 
 ant's transactions as executor; that, in taking 
 the account, he be allowed credit for the 
 amount paid on the executions of Joel Smith 
 and of Thomas Stewart, with interest ; that 
 he also be allowed credit for the twelve liun- 
 dred dollars; and that the Commissioner re- 
 port the result. And it is further ordered and 
 decreed, that the defendant enter satisfac- 
 tion, or cause the same to be done, on the 
 several judgments against the testatrix de- 
 scribed in the pleadings. 
 
 The defendant appealed upon the grounds: 
 
 1. It is respectfully submitted, his Honor 
 erred in admitting in evidence loose declara- 
 tions of Mrs. Sarah Cunningham, the testa- 
 trix, made after the judgments confessed to 
 the defendant Simpson, to impeach said judg- 
 ments. 
 
 2. It is respectfully submitted, his Honor 
 erred in admitting parol testimony, to ex- 
 plain the will of Mrs. Sarah Cunningham, in 
 relation to the legacy to the said defendant, 
 Simpson. 
 
 3. Because a voluntary promise to pay mon- 
 ey, secured by a judgment confessed or ob- 
 tained, is a good executed lien or title, and 
 such muniment is good against all persons 
 churning as volunteers. The fact that levy 
 and sale, under the executions, are postpon- 
 ed until the death of the donor, cannot, upon 
 principle, alter the case in any respect. 
 
 4. Because the judgments confessed in this 
 
 *418 
 
 case to the de*feudant, Simpson, were not 
 voluntary, but based upon considerations 
 both good and valuable — relationship, kind- 
 ness, and services actually rendered. They 
 were fairly obtained, and not only freely and 
 cheerfully given, but placed in an executed 
 and irrevocable condition by the donor her- 
 self ; and the defendant insists that nothing 
 could afterwards diminish or alter his vested 
 rights. 
 
 5. Because his Honor erred in holding that 
 Mrs. Cunningham did not intend to give the 
 defendant. Simpson, both the judgment for 
 one thousand dollars and the judgment for 
 five hundred dollars. The defendant insists, 
 with the utmost confidence, that the whole 
 evidence, taken together, affords conclusive 
 proof that IMrs. Cunningham intended to give 
 liim both judgments, as distinct and separate 
 
 166 
 
 liens, over and above the amount of money 
 advanced. 
 
 6. Because the defendant, Simpson, was 
 a creditor of Mrs. Cunningham's, to the ex- 
 tent of all the judgments held by him, and he 
 is entitled to be paid all his judgments, at 
 least, even if the doctrine of satisfaction ap- 
 plies, and he elects to claim his demands, but 
 not to receive the legacy at all. 
 
 7. Because the doctrine of satisfaction is 
 not applicable to the case, and the defendant 
 is entitled to receive the amount of his judg- 
 ments as creditor, and also the bequest in the 
 will, as legatee. 
 
 McCowau, for appellant. 
 Marshall, contra. 
 
 The opinion of the Court was delivered by 
 
 JOHNSTON. Ch. It certainly was compe- 
 tent for Mrs. Cunningham — if she clearly un- 
 derstood the transaction, and entered into 
 it with such an intention, — to make a gift to 
 Dr. Simpson of the two confessions, and to 
 allow him, in addition, to hold the two prior 
 judgments, lo reimbur.se him for the money 
 he might advance on them. But, considering 
 her advanced age and infirmity, and her 
 great distress, and the confidence she reposed 
 
 *419 
 *in him, it vpould require clear evidence to 
 establish this: clearer evidence than this 
 case affords. 
 
 Considered in the light of a mere business 
 transaction, it would be dirticult to support 
 a bargain, by which one party has obtained 
 from the other enforcible securities to near 
 $2,500, for advancing little over $1,000. 
 
 But my conviction, arising maiidy from the 
 evidence introduced bj' Dr. Simpson himself, 
 with very slight aid from any other evidence, 
 and without resorting at all to the after dec- 
 laratit)ns of Mrs. Cunningham, (which I re- 
 gard as incompetent,) is, that it was not the 
 intention of the parties — especially of Mrs. 
 Cunningham — that the judgments, wliicli Dr. 
 Simpson was to take up, were to be kept afoot 
 by him, as demands against her. 
 
 Dr. Campbell, who was present when the 
 bargain respecting Smith's judgment was 
 made, says expressly, she "wanted it satis- 
 fied ;" and again, that "she wished the Smith 
 judgment paid off." And Anderson, who was 
 present when Dr. Simpson paid it off to 
 Smith, saj's, that it was in conseipience of his 
 suggesting to Simpson, that he had better 
 take an assignment of it, to guard against 
 prior liens, that Simpson, after some hesita- 
 tion, concluded to do so. Would he have 
 hesitated, if he had, at that time, understood 
 that the judgment was to be kept afoot? 
 
 Whatever was said in relation to a gift, in 
 connection with the $1,000 confession which 
 Mrs. Cunningham made for taking up Smith's 
 judgment, is easily accounted for by the fact, 
 that the confession exceeded the prior judg- 
 ment nearly $200. The gift consisted in this 
 excess.
 
 SIMPSON '. . DOWNS 
 
 *42J 
 
 .^niith's testimony Is not opposfd U> this 
 view. He was not present at tlie bargain: 
 and only repeated wluit Simpson told him, — 
 prohaiily. after he had concluded to adopt 
 Andersofi's advice. 
 
 So nnuh for Smith's judgment and the 
 confession of $1.0(10. 
 
 Dr. Watts was present when Dr. Simpson ! 
 undertook to take up Stewart's judgment of I 
 .SIOO; <»n whicli occasidu. the ctmfessien of 
 ."PuOO was given. He testilies to Mrs. Cunning- 
 ham's impression, that both Smith's and 
 
 *420 
 Stewart's judgments were to *he extinguish- 
 ed; — "Slie seemed to think the Sndth and 
 Stewart judgments were satistie<l. — and she 
 was satisfied." 
 
 On this occasion, siie increased the rate 
 of compensation 7u'y(Mid what she had agreed 
 to give, when the treaty related to Smith's 
 judgment alone. It will be renuunbered. that 
 though Dr. Simpson was to reci'ive ^L'OO for 
 paying Smith oft", yet he was to wait until 
 her death for reimbursement, and. in the 
 meantime, was to forego the interest on his 
 confession. When Stewart's debt became the 
 subject of further sti|iulations, it may have 
 occurred to the parties, that, by the probm- 
 .gation of her life, this might become a less 
 advantageous bargain on his part than had 
 been anticipated ; and this occasion may 
 have been taken to increase liis compensation, 
 as well as to give him compensation for un- 
 dertaking to take care of her and her affairs, 
 (which lie now undertook.) by allowing him. 
 in addition to the .$1,000 confession, which 
 he already held, another for $r)fK): — thus, ac- 
 cording to Dr. Watts, compensating him "for 
 wliat he liad done, and what he" now "[jrom- 
 ised to do for her." 
 
 Thus, it will be perceived, that, in my opin- 
 ion, the ju.stice of the case reipiires a decree, 
 that the two judgments of Smith and Stew- 
 art, which Dr. Simpson sets up. be peri)etual- 
 ly enjoined; and that lie be allowed to set 
 up his two confessions, with interest only 
 from the death of the testatrix. This, I 
 think, was the understanding and eontraet of 
 the parties, and there appears to have been 
 fair consideration for it. 
 
 I do not think evidence, to show, that the 
 legacy of $1.1200 was intended as a satisfac- 
 tion of what the testatrix owed Dr. Simp- 
 son, was admissible. 
 
 Nor do I think, that any presumption that 
 it was .so intended, can be raised under tlu' 
 will. The fact that the legacy is le.ss than 
 the just claim of a creditor, as in this in- 
 stance, and the additional fact, which ap- 
 pears in this will, that the testator has made 
 express provision for the payment of debt.-! — 
 both, according to amhority.i^i repel the 
 
 *421 
 idea that a legacy, in terms of 'donation 
 merely, to one who liappeus to be a creditor. 
 
 (/<) 1! Story Eq. § llL'O, 1122. 
 
 was intended as a satisfaction of Ids de- 
 mands. 
 
 It is onh-reil. that the defendant. Dr. Kd- 
 ward <;. Simpson, be perpetually enjoined 
 from setting up tlu' judgments and execu- 
 tions of Smith and Stewart, mentioni'd in the 
 pleaflings, and that he eater satisfaction 
 thereon. 
 
 And It Is further ordered, that. In the ac- 
 count directed in the decree, the said de- 
 fendant be allowiHl credit for tlie two confes- 
 sions taken by him from his testatrix, de- 
 scrllied In the pleadings, with interest only 
 from the death of said testatrix; and that 
 lie als(( be allowed cre<lit for his said legacy 
 of $1,200. 
 
 That he do pay the costs of thi.s suit. 
 And that the decree appealed from be iuihII- 
 fied, a<cording to this decree: and that. In 
 all respe«ts. except as so motlltied, it be af- 
 firmiHl. 
 
 WAIJDI>AW. Ch.. concurred. 
 
 Dl'NKIN. t'h. On reconsideration of the 
 Circuit decree, I should still |)refer the view 
 there presented. Hut the transaction is very 
 well susceptible of the constriction which 
 has been adopted by the Court, and 1 am 
 content to concur In it. 
 
 Decree modified. 
 
 R. F. 
 
 5 Rich. Eq. 421 
 SI.MliSoX V. SARAH I>OWNS. and 
 
 (Cohmiliia. 
 
 Others. 
 -May Term. 1853.) 
 
 [Apiieal and Knur ®=3.'{42.1 
 
 Rill by creditor t« set aside a judgment 
 !i!.'iuiist the debtor for frauil. The hill jirayed 
 relief on dtiuT i;ri>uii(ls, against otln-r parties. 
 The credituis of the delitor were called in, and 
 one oliject of the bill was tu marshal his a.'isets 
 among tiiem. A decree wa.s made disinisshig the 
 bill, so far as it sought to set aside the judg- 
 ment—ordering new parties to be made. an<l re- 
 ferring the case to the commissioner. .\t an- 
 other term, a decree was ma<le upon the report 
 of the Commissioner, and exceittions thereto: — 
 
 ♦422 
 field, *tli:it it was then too late to api>eal from 
 the first decree refusing to set aside the jiidg- 
 niiiit. 
 
 I Kd. Note.— For other cases, see Appeal and 
 Frrnr. Cent. Dig. §§ 1889. 1899; Dec. Dig. «=> 
 .•542.] 
 
 [Aliiirnl and Error @:=3.144.] 
 
 Where there is a fin d decree as to any one 
 of the p.irties. or an.v distinct branch of litiga- 
 tion, so that nothing; ninains to be adjiid;:ed as 
 to tJiat party, ur that brancii of the litigation, 
 the appeal must lie taken, within the time, 
 and in the manner prescribed l)y the rules of 
 Court, or the ri^ht of appeal will be lost. 
 
 |i;d. Note. — Cited in Verdier v. Verdier, 12 
 Rich. F.i. 14:{. 
 
 For otlx-r eases, see Appeal and Error. Cent. 
 Dig. § 1SS9; Dec. Dig. «©=3:{44.1 
 
 [Apfical and Error C=''542.1 
 
 Where the decTee adjudges the liability of a 
 party, and refers the nuitter to the Commissioner 
 
 ^=>For other cases see same topic and KEY-NUMBEK in all Key-Numbered Digests and lndeze> 
 
 161
 
 *422 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 to ascertain the amount due, or where some- 
 thing remains to be done, recjuiring the further 
 jucJicial action of the Court, the appeal may be 
 taken at once, or the party may wait' the final 
 judgment of the Court, and then appeal. 
 
 [Ed. Note. — For other cases, see Appeal and 
 Error, Cent. Dig. §§ 1889. 1899 : Dec. Dig. €=> 
 342.] 
 
 lAi)r)cal and Error <S=58o3.1 
 
 Petition to the Court of Appeals to rehear 
 a. case, in which a Circuit decree, not appealed 
 from, had been made, on the ground of newly 
 discovered evidence: — Petition dismissed, with an 
 intimation of opinion, that application should 
 be made to the Circuit Court for leave to file a 
 supplemental bill, in the nature of a bill of re- 
 view. 
 
 [Fd. Note. — Cited in Tomlinson v. Tomlinson, 
 10 Rich. Eq. 300; Tomlinson v. Tomlinson, 11 
 Rich. Eq. 69; Ex parte Knox, 17 S. C. 211, 
 212. 
 
 For other cases, see Appeal and Error, Cent. 
 Dig. §§ 3214, 3229-3240. 3244-3246 ; Dec. Dig. 
 <©=833.] 
 
 [Equity <gp>392.] 
 
 A petition for a re-hearing is the proper 
 mode of proceeding before the decree has been 
 rendered ; but where, after the filing of the de- 
 cree, a party wishes to avail himself of newly 
 discovered evidence, his api)lication should be 
 for leave to file a bill of review, or a'' supple- 
 mental bill, in the nature of a bill of review. (a) 
 
 [Ed. Note.— Cited in Bennett v. Bell, 10 Rich. 
 Eq. 465: Hillv. Watson. 10 S. C. 275; Durant 
 v. Philpot, 16 S. C. 125: Yates v. Gridley. Id. 
 500: Ex parte Carolina National Bank, 56 S. 
 C. 20, 33 S. E. 781; New York Life Ins. Co. 
 v. Mobley, 90 S. 0. 560, 73 S. E. 1032. 
 
 For other cases, see Equity, Cent. Dig. § 835 ; 
 Dec. Dig. <©=»302.] 
 
 [Courts <©=>206.1 
 
 Tlie Court of Appeals having only appellate 
 jurisdiction, an original application there to re- 
 hear a Circuit decree, not appealed from, can- 
 not be entertained. 
 
 [Ed. Note. — Cited in Ex parte Knox, 17 S. 
 C. 210. 
 
 For other cases, see Courts, Cent. Dig. § 738 ; 
 Dec. Dig. <©==>206.] 
 
 Before Dunkin, Ch., at Laurens, July, 1852. 
 
 This case will be sufficiently understood 
 from the opinion delivered in the Court of 
 Api)eals. 
 
 Irby Sullivan, for appellant. 
 Young, I'erry, contra. 
 
 The opinion of the Court was delivered by 
 
 DARGAN, Ch. The questions involved in 
 this case are questions of practice. 
 
 Sarah Downs, by proceedings in the Court 
 of Equity, had obtained a decree against lier 
 son, Wlilliam F. Downs, for upwards of $15,- 
 000. The plaintiff had a judgment against 
 the said AVilliam F. Downs, of a junior date. 
 He also had other demands against him, for 
 a considerable amount, arising from part- 
 nership transactions ; he and Downs having 
 been the joint owners of a cotton and wool- 
 
 {(I) See the case Ex parte Vandersmisscii and 
 AVife [5 Rich. Eq. 519, 60 Am. Dec. 102], in 
 the appendix of this volume, where leave was 
 granted to file a bill of review. See also the 
 case of Carr v. Green, Rich. Eq. Cas. 405. — R. 
 
 *423 
 en factory. He had filed a bill *agalnst 
 Downs for the adjustment of tlu-se claims, 
 which was iiending at the rendition of the 
 decree, which will be hereafter mentioned. 
 W. F. Downs was insolvent. And the decree 
 of Sarah Downs against him, which was of 
 an older date, and for a large amount, stand- 
 ing in the way of the satisfaction of the 
 plaintiff's claims, he filed a bill against Sarah 
 Downs, charging that her decree against 
 AVilliam F. Downs, was a fraud upon credi- 
 tors, and void ; and prayed the Court to set 
 it aside on that ground. He made other per- 
 sons defendants to the cause, on other 
 grounds of relief, in which Sarah Downs was 
 not interested, and had no concern. 
 
 There was a fund under the control of the 
 Court, arising from the sale of a tract of 
 land, in which AVilliam F. Downs had an 
 estate. The creditors of Downs were called 
 in. The fund aforesaid constituted the only 
 assets, which had not been appropriated. 
 And one of the objects of the proceedings 
 was, to marshal this fund among the credi- 
 tors of AVilliam F. Downs, according to their 
 respective rights. 
 
 The case was first heard in 1851, when tlae 
 presiding Chancellor, holding that the evi- 
 dence was not sutlicient to impeach the bona 
 fides and validity of the decree wliich Sarah 
 Downs had obtained against AA\ F. Downs; 
 dismissed the bill as to her.(/>) He ordered 
 new parties to be made, which was done. 
 xVnd he referred the case back to the Com- 
 missh)ner for further investigation as to the 
 questions between the plaintiff and the rep- 
 resentatives of W. F. Downs, and the other 
 parties to the bill. From this decree no ap- 
 peal was taken. 
 
 The case went on, and was again heard in 
 1852, on the rei)ort of the Commissioner and 
 exceptions. In marshaling the fund, the 
 Commissioner applied so much of it as was 
 necessary to the satisfaction of claims ad- 
 mitted, on all hands, to be entitled to preced- 
 ence. He then applied tlie residue to the 
 decree in favor of Sarah Downs, which ex- 
 hausted the fund without satisfying the de- 
 cree. This was to the entire exclusion of 
 the claims of the plaintiff and of the other 
 
 *424 
 creditors ; and was a rightful appli*catiou, 
 if the decree in favor of Sarah Downs is 
 valid. The plaintiff, and others of the credi- 
 tors, filed exceptions to the report, which, in 
 substance, may be resolved into the objec- 
 tion, that the decree in favor of Sarah Downs 
 was fraiululent and void, and, therefore, en- 
 titled to no part of the fund, as against them. 
 The Chancellor overruled the exceptions, and 
 confirmed the report. And this decree pur- 
 ports to be a final disposition of all the is- 
 sues growing out of the plaintiff's bill. 
 
 (&) That is, so far as it sought to set aside the 
 decree in her favor. — R. 
 
 168 
 
 ^^ssFor other cases see same topic and KEY-NUMBKR ia all Key-Numbered Digests and Ip,dexe»
 
 CHINA V. WHITE 
 
 •426 
 
 Tlie plaintiff now appeals from the first 
 deoree of ISHl, on the f^round. that tlu? Chan- 
 cellor should havo set aside the decree in fa- 
 vor of Sarah Downs, for fraud. 
 
 niiglit have had an important inrtut-m-e on 
 tlie jud>:iuent of the Court. 
 
 I aiipn-liiMid, liowever, that some nf the 
 ridfs i>f praetlcf on this sulject have l>een 
 
 A i)relinunary i>liji'«-tion is interposed hy ((infmuided in tlie pre>;ent proreedin;;. This 
 tlie counsel for the appellees, which is, that | is a petition for a rehearing, whi<h is the 
 the plaintiff can have no standhi}; in this projK'r uumIc of pr<KvedinK In-fore tin* decree 
 Court as an appellant, as to any alleged er- luis Ihhmi rendered. Hut. after the tiling of 
 I'ors in the first decree: in other words, the decree, when a party wishes to avail Idiu- 
 that lie has lost his rii^ht of ap|»eal. hy not : self of newly diseoveretl evidence, the remedy 
 hriniilnj; it forward in the proper time. If I should l»e sou;;ht hy an a|>iilication in tile 
 the atHrniative of this proposition be true, ! projier form, and properly vouched, for leaive 
 further con.sideration on this liranch of the ] to lile a l>ill of review, or a supplemental 
 
 cas ' v.ill he unnecessary. 
 
 It is not my purpose to enter at lar,i,'e in- 
 to the disciission of this (|uestion. Kut I 
 will content ni\self with a simple statement 
 of the result of our delilterations. The opin- 
 ion of the Court is, that where there is a 
 final decree as to any one of the parties, or 
 
 hill In the nature of a hill of review; the 
 supplenuMital hill bein>.', perhaps, the most 
 api>ropriate form of protv«'dinn. 
 
 Another very important distinction has 
 lieen lost sight of in this aiiplicati<ai. This 
 C<airt only entertains aiipellate juris«liction. 
 No cause can come before it except hy way 
 
 any distnict branch of the litiixation, so that I of appeal. This is fandliar to all. Hy the 
 nothinfi remains to be adjudged as to that decision announced in tlie lirst part of this 
 
 party, or that branch of the litigation, the 
 appeal must be taken within the time and in 
 the manner prescrilied by the rules of Court, 
 or the riulit of appeal will he lost. It is dif- 
 ferent, where there has In'en a dcK.'ree adjudii- 
 int; the liability of a party, with a reference 
 to the Comaii.'-sioner to ascertain the amount 
 due; or where soiiiethini; remains to be done, 
 requiring the further judicial action of tlie 
 Court. I'nder the.se circumstances, tlie par- 
 ly, supposing hinuself aggrieved, may appeal 
 at once from the decree, tliougli it be inter- 
 locutory ; or he may wait the linal juilgr 
 nient of the Court, and take his appeal from 
 that, and all the judicial orders and decrees, 
 which preceded and led to the final judgment. 
 This, as a rule of practice, was settled in 
 
 *425 
 *Hrown v. Tostell, 4 Klcii. Vai. 71 ; and is not 
 intended to be shaken, or ino(lilied by any- 
 thing herein ex])ressed. 
 
 The further opinion of the Court is; that 
 the first decree rendered in this cause was 
 final against the plaintiff as to all matters 
 charged in his bill against Sarah Downs; 
 and that the plaintiff, not having i)ro.secuted 
 liis appeal within the time prescribed, the 
 case is not l)efore this Court, and cannot be 
 heard. It is so ordered and decreeil. 
 
 But the p' ntift', in atldition to his at- 
 tempt {{) be luard before this Court, by way 
 appeal from the decree of l.sr>l, has tiled 
 this Court a petition f<u" a rehearing, ou 
 ...e alleged ground of newly discovered testi- 
 mony in writing, not within his power to 
 have been produced at the trial on wliich the 
 s;iid decree was rendered. The petition is 
 supported l)y the allidavit of the plaintiff, 
 and is certified to by coun.sel. The i»etition 
 and the exhibits set forth the evideia-e alleg- 
 e<l to have been newly discovered ; and it 
 seems to this Court, from a prima facie view 
 of the facts stated, that if tlu-y had been 
 proved on the former trial of the cause, tliey 
 
 decree, the petitimier's case is not, and can- 
 not come before tliis I'ourt for its judicial 
 
 •426 
 
 coirnizance. The Court is pre*cluded by its 
 organization from entertaining the petition; 
 which would be, to assume original jurisdic- 
 tion. From the foregoing views, tlie <lis- 
 missal of the petition follows as a matter of 
 course. Here I might .stop. To say more, 
 would he, i>erhaps. to travel out of the re<-- 
 ord. It maj, however, not he amiss for me 
 to intimate,. that, in the opinion of the Court, 
 the proper nuKle of proceeding, und»'r the cir- 
 cumstames alleged in the petition, would he 
 to afiply to the Circuit Court for leave to lile 
 a supplemental bill, in the miture of a hill of 
 review. The petitioner, if he chooses, may 
 avail him.self of this iirivilege of pmceeding 
 in that Court, in such numner as he may be 
 advised. The petition is dismissed. 
 
 JOHNST<>N. I'lNKI.N and WAUDLAW, 
 CC, concurred. 
 
 Apiteal and itetititm disndssed. 
 
 5 Rich. Eq. 426 
 
 WILLIAM A. CHINA ami Others v, GEORGE 
 W. W1HT1-: and Others. 
 
 (Coluuibia. May Term, LSo.'J.) 
 
 [Willit ©=417, 042.) 
 
 Testator, having four children, nil of ngi', 
 and a ;.'riindsoii, a minor, made his will, by 
 wliicii he l>r<|ii('.itht'd certain personidty, "to be 
 iMiually divided anu>n;;st my children, and ray 
 ^rand.son. to them and the lawful heirs of their 
 body— if either of my children, or said gnind- 
 siiii, shall tlie undiT age, or without leaving 
 liviiij; issue, his or her part <<f my properly is 
 to return to my survivin;: heirs":— //»/</, tii.it or 
 must bo construed and; that the contin^en<-y 
 provided for was, the death of the lirst taker 
 "under age, and without leaving living issue;" 
 that, therefore, each of the children took au ab- 
 
 (g=^For other cases see suiut topic auU IvEY-NUiiUliU ia all Key-NumbereU Digests and Indexes 
 
 109
 
 *426 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 solute and indefeasible estate in his or her 
 share. 
 
 [Ed. Note. — Cited in Shands v. Rogers, 7 
 Rich. Eq. 428. 
 
 For other cases, see Wills. Cent. Dig. §§ 
 900, 1166; Dec. Dig. <S=3417, 542.1 
 
 Before Dargan, Ch., at Willianislnirg, Feb- 
 ruary, 1853. 
 
 Dargan, Ch. The will of William Taylor 
 *427 
 bears date the *4tb March, 1821. He died 
 in 1822, leaving the said will unrevoked. He 
 left surviving him his wife, Mary Taylor, 
 one son, iSamuel P. Taylor, three daughters, 
 Mary Nelson Taylor, Susannah Elizabeth 
 Taylor, Maria Bouneau Taylor, w'ho after- 
 wards intermarried with Thomas China, and 
 a grandson, George W. White, the only child 
 of a daughter of the testator, who had died 
 before the execution of the will. 
 
 The testator bequeathed to each of his 
 children, and to his grandson, one negro. He 
 had, in a previous clause, directed certain 
 property to be sold for the payment of his 
 debts. Plavlng made these dispositions, he 
 then declared as follows: 
 
 "The rest and residue of my personal prop- 
 erty is to remain on my plantation, for the 
 support and maintenance of my wife, Mary 
 Taylor, and daughters who may remain un- 
 married at my death, during the life time of 
 my wife, Mary Taylor; and at her death, 
 the whole of my personal property, not al- 
 ready be(iueathed, to be equally divided 
 amongst my children, and my grandson, 
 Oeorge W. White, share and share alike, to 
 them and the lawful heirs of their body ; 
 l-ut if one or more of my children or grand- 
 son shall die before that time, leaving issue, 
 tJiat issue is to have that which the parent 
 would have been entitled to if living." 
 
 "It is my will and desire, that if either of 
 my children, or said grandson, shall die un- 
 der age, or without leaving living issue, his 
 or her part of my property is to return to my 
 survi\'ing heirs. It is my will and desire 
 also, that my plantation and lands shall 
 remain for the use and benefit of my daugh- 
 ters, as long as any of them shall remain un- 
 married, and at the death or marriage of all 
 my daughters that are single, then said 
 lands to be sold at public auction, on a credit 
 of twelve months, by the executor, and the 
 money arising from such sale to be equally 
 divided among, my lawful heirs, share and 
 share alike."' 
 
 Samuel P. Taylor died in the life time of 
 his mother, the testator's widow, without is- 
 sue and unmarried. On her death, the tes- 
 tator's personal property, disposed of in the 
 
 *428 
 residuary *clause, was divided among the 
 testator's children, and his grandson, accord- 
 ing to the directions of the A\'ill. 
 
 Maria Bomieau Taylor, who, after the tes- 
 tator's death, intermarried with Thomas 
 China, died iu April or May, 1852, leaving 
 
 170 
 
 her husband, the said Thomas China, and 
 ten children, namely: William A. China, 
 Thomas J. China, Louisa S. China, Mary T. 
 China, Harriet A., the wife of David M. Ma- 
 son, Magdaline, the wife of I'eter R. KeaLs, 
 Frances H. China, Samuel M. China, Lenora 
 M. China, and John R. Ciiina, surviving her. 
 
 Mary Nelson Taylor died in August, 1852, 
 aged sixty years or upwards, without issue, 
 without ever having been married, and in- 
 testate. 
 
 The children of Maria B. China, abo^c 
 named, and the husbands of her married 
 daughters, have filed this bill for a partition 
 of the estate, of which Mary Nelson Taylor 
 died possessed. They have made Susannah 
 E. Taylor, George W. White, and Thomas 
 China, (their father.) defendants in the 
 cause. The plaintiffs allege, that all the ne- 
 gro property of which Mary Nelson Taylor 
 died possessed, are the same negroes, or the 
 issue thereof, which she derived from the 
 will of her father, the said William Taylor ; 
 and this fact is not disputed. The plaintiffs 
 further allege, that Mary Nelson Taylor took, 
 by the will of her father, an estate in these 
 negroes, defeasible upon a condition that has 
 ha])peued : that they, as remaindermen, are 
 now entitled to a share in said negroes ; and 
 they claim that the division should be per 
 capita. Failing in this proposition, they 
 claim a division per stirpes ; and failing iu 
 this, they claim as the distributees of the 
 said Mary Nehson Taylor. They also ask 
 for an account. 
 
 The defendants, Susannah E. Taylor and 
 George W. White, in rheir answer say, that 
 Thomas China, the father of the plaintiffs, 
 has been improperly made a party, and that 
 he has no pait or lot in the matter. They 
 further say, that they, as '"the surviving 
 heirs" of the said William Taylor, are en- 
 titled to the whole of the property of which 
 Mary Nelson Taylor died possessed, and 
 which she derived under her father's will ; 
 and if not so entitled, that, under the limita- 
 
 *429 
 tious of tlie will, or as the *distributees of 
 Mary Nelson Taylor, they are entitled to a 
 division of the property per stirpes, and not 
 per capita. These are the issues of the cause. 
 
 The construction of this will is not free 
 from difficulty. The condition, upon which 
 the estate given by the testator to his chil- 
 dren and grandson, was to go over, or as he 
 has expressed it, was to return to his sur- 
 viving heirs, was their dying under age or 
 without leaving living issue. If the will is to 
 be construed by its own terms, without ref- 
 erence to collateral and extraneous facts, the 
 interpretation would be easy, both upon prin- 
 ciple and authority. To give to the language 
 employed in this clause its literal import, the 
 testator would be made to express two inde- 
 pendent conditions, upon the happening of 
 either of which, the estate was to pass away 
 from the first object of his bounty. Upon
 
 CHINA V. WHITE 
 
 *432 
 
 this construction, If the le«iitt*e dlftl, either 
 under aae or without leaviii;:; issue, tlie es- 
 tate would be defeated. Althou^jh tlie legatee 
 niiglit die under a^f, but leaving issue, tlie 
 issue c-ould take nothing;. To avnld iniputln^ 
 to the testator so unreasonable. an<l, in many 
 instances, so unnatural an intention, as to 
 design that the iiroperty should i»ass away 
 from the issue of the tirst »»bject of his boun- 
 ty, to collateral or distant kindred, or io 
 persons of no kindred blood, the Court pre- 
 sumes that the testator has usetl the eon- 
 junction in a lottse and un^'rannnat hal .sense, 
 by no means uncctmnion in careless and In- 
 artistic composition. I'pon this Kronnd, In 
 cast's like the iiresent, the Court has i>resum- 
 cd. that the testator has iinnvurately used the 
 disjunctive for the coi>nlative conjunction, 
 and for tlie purpose of carrying; into effect his 
 intention, "or" has been construed into "and." 
 More particularly should this rule of con- 
 struction apply in a case like the present, 
 where the testator had. in a previous clause, 
 fjiveii the property to his children and the 
 lawful heirs of their body. The doctrine is 
 fully recofinized in the case of Scanlan v. 
 I'orter, 1 Bail. 4'2~. It is the lirst reptn-ted 
 case of the kind in Sontli-CaroHna. It has 
 been freipieiitly followed since. The jtriii- 
 ciple is supported by the most unanswerable 
 reasoniiii:. aiul by the lii;,'liest authority. See 
 
 *430 
 Burhans *v. Pdanshan, 6 Johns. 54, where 
 Chancellor Kent has };iven a masterly analy- 
 sis of the doctrine, and the authorities in suih 
 port of it. 
 
 But the (li(li( ulty which has been suKgested 
 in this ca.se, arises uiton a matter out.side of 
 the will. Mary Nelson Taylor was thirty 
 years of aj;e at the date of her fatlu'r's will. 
 Each of his other children had. before that 
 time, attained their majority: and. of all liis 
 legatees, his grandson, George W. White, 
 alone, was under the age of twenty-one 
 years. It is urged, that the testator must be 
 Itresumed to know the ages of his <-hildren. 
 I think this a reasonabh" presuniption in 
 most instances, particularly in this case, 
 wliere the testator's children had advanced 
 a considerable period beyond their minority, 
 rpoii this i)resumptlon. it is further contend- 
 ed, that the doctrine of Scanlan v. I'orter, 
 though it applies to the legacy in favor of 
 (Jeorge W. White, cannot apply to tlio.se in 
 favor of Mary Nelson Taylor, and the tes- 
 tator's other chililren. who. at the execution 
 of the will, had already attained the age of 
 twenty-one years, l-'or if this doctrine is to 
 prevail, (the argument is.) then, at the very 
 execution of the will, the limitation was in- 
 elTectnal. because, at that period, it had al- 
 ready ceased to be possible that the testa- 
 tor's children could die under age and with- 
 out leaving issue. This, as to them, it is said, 
 is putting the limitation obviously intended 
 by the testator upon an imitossible condition, 
 which is unreasonable. Why did he attempt 
 
 to create a limitation which was tlearly a 
 failure from the beginning'/ This is the argu- 
 ment in favor of the plaintiffs. The argu- 
 ment founded upon the redact io ad alsurduin, 
 may l>** retorted by the defendants with .some 
 d»'gree of force. If the testator did remember 
 the ages of his children, and intende«l the 
 tUsjuiictivi- construction contemled for by 
 the plaintiffs, why did he make the limitation 
 to depend upon two separate (unditions, one 
 of which was lm|Kissible at the execution of 
 the will'/ This construction would strike 
 out the whole of the lirst conditittn. ithe 
 death of the children under age.i as a nullity. 
 There ciuild be no meaning in iliosi- words. 
 
 •431 
 They would be 'utterly void «if sense, and 
 as if they dbl not occur in the will. Is not 
 tills dilliciilty. which Is op|Mi.se«l to the Inter- 
 in-etation of the plaintiffs, as great as that 
 wlihh they urge against the construction of 
 the op|>osit«> jtarty'/ 
 
 Again: it is atlmltted that the doctrine of 
 Scanlan v. Porter would apply to the ea.se of 
 (leorge W. White: that, as to his legacy, "or" 
 woulil be construed "and:" and the limita- 
 tion over would uot take effiH.'t unless he died, 
 both under age and without leaving i.ssue. 
 Hence would arise the incongruity anil aln 
 surdity of deducing two different meanings 
 for the testat«)r. from the same language and 
 from the same sentence. It can hardly be 
 that he intend»'d to give (Jeorge W. White ail 
 estate different from that which he gave to 
 his children. 
 
 An «'minent llnglish commentator, (Jarm. 
 on Wills, 1 vol. 44(i. I in his remarks <ai this 
 subject, uses the following language: "It is 
 obvious that the ground for changing or into 
 and exists a ftu-tiori, where children or 
 i.ssu«' are the express tibjects of the testator's 
 bounty." 
 
 At the same page, he furthei says: "It 
 would .seem that the iirinclple in <jue.stlon 
 would api»ly in every ca.se, where the gift 
 over is to arise in the event of the preceding 
 devisee or legatee dying uiuler certain pre- 
 scribed circumstances, or leaving an object 
 who would, or, at least, might, take a LM'ue- 
 lit derivatively, through the devls«H> or lega- 
 ti'c. If his interest renialne«l undlvested; and 
 to whom, therefore. It Is probable that the 
 testator inti'iided indirectly a benetlt, not de- 
 pendent ujion the devisee «ir legatee dying un- 
 der the prescrllu'd circumstances or not. In 
 this point of vh'W, It would seem to be im- 
 material whether the dying Is contlntnl to 
 minority, or Is assiulatiMl with any other i-on- 
 tingeiicy: as in the ca.se of a gift to A., and 
 If he shall die In the life time of B.. or with- 
 out Issue, then over; or whether the event 
 Is leaving Issue, or leaving any other objiH-t 
 who would derive a ben«'llt through the lega- 
 tee. If his or her Interest was held absolute." 
 
 Ipon the whole, though not without some 
 ♦432 
 mlsjjlviugs, I am *of the oiilnloii that the 
 
 171
 
 *432 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 copulative construction sliould prevail ; and 
 it is so ordered and decreed. 
 
 This construction makes tlie property in 
 question tlie absolute estate of Mary Nelson 
 Taylor, in regard to wliich she died intestate, 
 and which must be divided according to tlie 
 provisions of the statute of distributions: 
 one-third part thereof to the plaintiffs, one- 
 third part to Susannah E. Taylor, and one- 
 third part to George W. White. It is so 
 ordered and decreed. 
 
 It is further ordered, that a writ of parti- 
 tion do issue, at the instance of either of 
 said parties. 
 
 It is further ordered, that the accounts of 
 the administrator of Mary Nelson Taylor be 
 referred to the Commissioner. 
 
 It is further ordered, that the question as 
 to the sale or gift of the negroes, A'eptune 
 and ijavicy, be reserved, and that the Com- 
 missioner report thereon. 
 
 The complainants appealed, on the ground.s: 
 
 1. That the limitation over, in the will of 
 William Taylor, to liis surviving heirs, took 
 effect on the death of Mary N. Taylor, with- 
 out leaving issue ; and that she conse<iuently 
 did not take an absolute estate in the prop- 
 erty sought to be partitioned in the bill of 
 the complainants. 
 
 2. That the decree was, in otlier respects, 
 contrary to law and evidence. 
 
 The defendants appealed, on the grounds: 
 
 1. Because, under a proper construction of 
 the will, the defendants, George W. White 
 and Susannah E. Taylor, are entitled to the 
 slaves held by Mary N. Taylor, as the surviv- 
 ing heirs of the testator. 
 
 2. Because, conceding that :Mary N. Taylor 
 took an absolute estate in the property, the 
 partition ordered is premature, as she has 
 not been dead twelve months, and there has 
 been no administration on her estate. 
 
 Miller, for plaintiffs. 
 
 Dargan and Porter, for defendants. 
 
 *433 
 
 *The opinion of the Court was delivered by 
 
 DARGAN. Ch. In announcing the judg- 
 ment of the Court, in this case, I deem it 
 necessary to add but little to what has been 
 tvid in the Circuit decree. 
 
 The diffidence and doubt with which I ar- 
 rived at and expressed my conclusion, upon 
 the Circuit, have been greatly diminished, Iiy 
 finding my opinion supported by the judg- 
 ment of the Court of Errors, in Waller v. 
 Ward, 2 Sp. 786, which was not brought to 
 my notice, or considered by me. upon the Cir- 
 cuit trial. In the case cited, the testator, 
 William Waller, bequeathed legacies to his 
 children ; and among others, he bequeathed 
 to his son, Samuel Waller, the use of certain 
 negroes ; to him and the lawful issue of his 
 body forever. In a subsequent clause, the 
 testator declared, "if any of his children be- 
 fore named should die under age, or without 
 
 leaving lawful issue of their body, that the 
 legacy liecpieathed unto them, and the proper- 
 ty given to them, be equally divided among 
 his surviving children," &c. The limitations 
 of this will, it will be perceived, are very sim- 
 ilar, in all respects, to the limitations under 
 the will of Williain Tayor. There is another 
 strong feature in the resemblance. The ques- 
 tion was as to the limitation of the negroes 
 given to the testator's son, Samuel Waller. 
 And he was over the age of twenty-one years, 
 at tlie execution of the will. This fact ap- 
 pears obscurely upon the report of the evi- 
 dence, but is said to have been earnestly 
 pressed in the argument, and was assumed by 
 the Court of Errors, in the argument accom- 
 panying the judgment. The case was reason- 
 ed by the Court, upon the supposition that 
 the fact existed. In the construction of Wil- 
 liam Waller's will, "or" was construed "and," 
 and the fact that Samuel Waller, the first 
 taker, was of age at the execution of the will, 
 was considered not to vary the interpretation. 
 The two cases, as to this point, could scarcely 
 have been more similar. Tlie decision is not 
 without .strong support from the case of 
 Usher v. Jessep, 12 East, 2<SS. 
 
 I am satisfied with the Circuit decree. 
 Subseipient reflection has rather strengthened 
 my opinion, therein expressed. 
 *434 
 
 *This Court concurs in the conclusions of 
 the Circuit decree. 
 
 It is ordered and decreed, that the said de- 
 cree be affirmed, and the appeal be dismissed. 
 
 JOHNSTON, DUNKIN and WARDLAW, 
 CO., concurred. 
 Decree affirmed. 
 
 5 Rich, tq, 434 
 E. L. DAVIS and Otlu-s v. DAVID KELLER 
 
 and Other.s. 
 (Columbia. May Term, ISoo.) 
 
 [Estoppel (2=33.37.] 
 
 Husband'-s interest in wife's inheritance was 
 sold by the sheriff. I'nrcliaser, husband and 
 wife, then joined in eouveyins the land, with 
 warranty, to trustees, in trust (1) to sell the 
 land, (2) to pay purchaser his bid, with interest, 
 and (3) to hold surplus for sole and separate 
 use of wife. • Wife died before renouncing her 
 inheritance. There was no sale by the trustees, 
 and husband's interest was again levied on and 
 sold by the sheriff: — Held, that the conveyance 
 to the trustees passed, by way of estoppel, the 
 husband's interest as heir of the wife, for the 
 purpose for which the deed was made ; but not 
 the shares of other heirs, her children, two of 
 whom were the trustees. 
 
 [Ed. Note. — For other cases, see Estoppel, 
 Cent. Dig. § 93; Dec. Dig. (®=:337.] 
 
 \Evidence <©=:3419.] 
 
 Held, also, that it was competent for the 
 trustees to show, by parol, other considerations, 
 as that they were to reimburse themselves for 
 certain expenses of husband and wife before the 
 trust deed was executed. 
 
 [Ed. Note. — For other cases, see Evidence, 
 Cent. Dig. Ji 1912 ; Dec. Dig. <©=>419.] 
 
 172 
 
 «S=»For other cases see same topic and KEY-NUMBER in all Key-NumBered Digests and Indexes
 
 DAVIS V. KELLER 
 
 •436 
 
 [Edcciitors and Admin'isitaiors C=Jl211i.] 
 
 Held, further, that tho second purchaser at 
 sheriff's sah' was entitled to no nioi'e than the 
 surplus of husband's distributive share, (one- 
 third. t alter :ill incumbrances under the trust 
 deed were satisfied out of that share. 
 
 [Kd. Note.— For other cases, see Executors 
 and Administrators, Cent. Dig. S TU2; Dec. 
 Disr. <g=>l.'llM 
 
 Ht'forc Duiikin. C'li.. at Abiieville, June, 
 is.ji'. 
 
 Diuikiii. Ch. It is admitted that Christiana 
 Ilaniiltoii. the mother of tlie comphiiuants, 
 and of some of the defeiKhmts, l)ecame. while 
 a widow, the proprietor in fee of the premises 
 described in the pleadinj;s. She afterwards 
 niarried Joseph A. Hamilton. In the early 
 part of 1S49. the jiremises were levied on hy 
 the sheriff of Abbeville district, under exe- 
 
 *435 
 tnitions afiainst *Hamiltou. and scdd to Na- 
 thaniel J. Davis, at public outciy. for the 
 sum of two hundred and thirty-three dollars. 
 On 5th February, 1S40, the sheriff executed 
 ;i conveyance of the premises, tojiether with 
 the appurtenances, "and all and siiifiular the 
 estate. rij;ht. title, interest, proiterty. claim or 
 demand, which the said Joseph A. Hamilton, 
 at the time of the sale of the said house and 
 lot. had in the same." According to the 
 proof, the house and lot were then worth fif- 
 teen hundred dollars; and it was announced 
 at the biddings, that the sheriff sold only 
 ■•Hamilton's interest in right of his wife." It 
 appears, also, that neither Hamilton nor his 
 family were living on the itremises during 
 the year 1S40. 
 
 On the lOth November. lS4f>. a conveyance 
 of the entire premises was executed hy Na- 
 thaniel J. Davis. .Joseph A. Hamilton, and 
 his wife. Christiana Hamilton, to the com- 
 plainants, in trust for the inirpo.ses tlieroin 
 declared. The rights of Nathaniel J. Davis 
 are recited, and. on his part, the deed pur- 
 ports to warrant the premises only during the 
 joint lives of Hamilton and wife. On the 
 part of Hamilton and wife, there is a general 
 covenant of warranty in fe(\ The trusts are, 
 that the grantees should make sale of the 
 premises, and from the proceeds i»ay. in (lie 
 first place, to Nathaniel J. Davis, the amount 
 of Ills bid at sheriff's sale, with interest 
 thereon, and hold the surplus to the sole and 
 separate use of Christiana Hamilton, not sub- 
 ject to the debts, contracts, control or en- 
 gagements of her husband ; and "to effect 
 and carry out such end, the .said Jo.seph A. 
 Hamilton." should he have "any interest in 
 said proceeds of sale, thereby a.ssignetl, tran.s- 
 f erred, and set over the same" to the com- 
 plainants.!/; i 
 
 (n) The following is a copy of the c!ause.s of 
 the deed in which the trusts are declared: 
 
 "It is nnderst" oil that the said 10. Lewis Davis 
 and .loscjih \. Davis will, as soon ;is conxcnient. 
 make a salr < f the house and lot aiove (|e-!( i ih- 
 ed : and a valid and absolute t'tle. in fee simple, 
 to the purehaser. who is not hound in any way 
 to '^ee to the ,ii)iilication of the i)urchase nmney. 
 
 *436 
 *It seems from the evidence, that Hamil- 
 ton was sold out early in 1849, and that he, 
 with liis family, removed to a rented place. 
 The complainants were not inmates of lii.s 
 family, but they furnished the family witli 
 two negryes. and purchased a hor.se. to work 
 in tlie crop, and made other advances. Tlie 
 witness. N. J. Davis, says that the deed of 
 Novend)er, 1849, was made with a view to 
 cover the expen.ses of living of 1849, incur- 
 red by complainants, for Hannltou and wife; 
 tliat the negro hire was part of the expenses; 
 that "when the deed was executed, tlie ac- 
 counts for lilre. «&c.. were spoken of. and es- 
 timated, in making the deed. Witness did 
 not know exactly the amount of complain- 
 ants' accounts for rent of land, hire of ne- 
 groes, horse, furnishing provisions. &c., but 
 lie thinks they were reimbursed, for their 
 outlay for Hamilton and family, except as to 
 the horse and as to the negro hire." It ap- 
 pears to the Court, competent to show by 
 parol evidence, as in lianks v. Brown. (2 
 Hill, Ch. rid.-) [30 Am. Dec. 380],) additional 
 considerations liesides that set forth in the 
 deed. But the complainants specially under- 
 took to reimburse N. J. Davis for the sum 
 paid by him at sheriffs sale, in February pre- 
 vious. A note of one of the complainants was 
 
 below direited. but only to pay the same to E. 
 Lewis Davis and Josei)h A. Davis, or their 
 heirs or assigns ; from the i)roceeds of this sale, 
 the said E. Lewis Davis and Ji>sei)h A. Davis 
 shall pay to the said N. J. Davis the amount 
 <if his bid at the purchase at sheriff's sale, as 
 aforesaid, and his lawful interest on such hid, 
 until his money has been paid to him. All the 
 residue of the proceeds of such sale the said E. 
 Lewis Davis and Joseijh A. Davis shall keep 
 
 *436 
 in their hands, not to be paid to the said *Jos- 
 ei)h A. Hamilton; nor in any way subject to 
 his disposition or control, nor in any way liable 
 for his debts, nor shall pass by any assignment 
 of him. the said Joseph A. Hamilton: and in 
 no manner, in Law or Equity, the said money 
 shall be liable for said Joseph A. Hamilton's 
 debts, contracts or obligations, nor sul)ject to 
 his control, nor assignment. And to effect and 
 carry out such end. the said .loseph A. Hamil- 
 ton, should he have any interest in said pro- 
 ceeds of sale, hereby assigns, transfers and sets 
 them over to the said E. Lewis Davis and Jos- 
 eph A. Davis. 
 
 "The said E. Lewis Davis and Jo.seph A. 
 Davis are to hold in trust the said i)roceeds of 
 sale of said house and lot. for the sole and s&[)- 
 arate use and behalf of said Christiana, the 
 wife of said Joseph A. Hamilton, subject to 
 her separate control and disiiosition. and her's 
 only. To be paid for her, and to her, in such 
 sums and amounts, principal and interest, as 
 she may designate and <lesire. by the said trus- 
 tees, and her separate dischai-ge. a<Mpiittance or 
 receipt, shall be a sullicient vou<'lier to the said 
 trustees, 1]. Lewis Davis and .Joseph A. Davis. 
 The whole sum to l)e subject to her absolute, 
 seiiarate and alone control, as she may direct 
 the said trustees to apply it. Oidy the legal in- 
 terest shall rem.iin in tlu' said trustees forever, 
 whilst any of the said proceeds remain unex- 
 pended, in order that the marital rights of the 
 .said Jo.seph A. Hamilton may not attach upon 
 the same." 
 
 ^z^For other cases see same topic auU KKY-NUMBER iu all Key-Numbered Digests and Indexes 
 
 173
 
 *436 
 
 6 RICHARDSON'S EQUITY REPORTS 
 
 accordingly given to him, when the deed was 
 executed, for the sum of two hundred and 
 fifty-nine dollars, with interest ; which note 
 has been fully paid to him hy the complain- 
 ants. As has been said, both N. J. Davis 
 and Joseph A. Hamilton, and his wife, joined 
 in the deed to the complainants of 10th No- 
 
 *437 
 vember, 1840. Six * weeks afterwards, to wit. 
 30th December. 1840. Christiana Hamilton 
 departed this life, and the complainants had 
 made no sale of the premises. In January. 
 1850, the sheriff again levied on the premises, 
 under an execution against Josei»h A. Ham- 
 ilton, whose interest was purchased liy the 
 defendant, David Keller, (with notice of the 
 deed of November, 1840.) for the sum of one 
 hundred dollars. 
 
 The deed of November. 1840, was supported 
 by a valual)le consideration : and Joseph A. 
 Hamilton, or any one claiming under him. is 
 estopped from disputing its validity for the 
 purposes therein set forth. But the ulterior 
 trusts of the deed ceased with the life of 
 Mrs. Hamilton. No provision is made for 
 the appropriation of the fund after her death. 
 If she had executed a formal release of her 
 inheritance on the deed of November. 1840, 
 and the complainants, having sold the prem- 
 ises for two thousand dollars, and reimburs- 
 ed themselves, had held fifteen hundred dol- 
 lars for her sole and separate use, and she 
 had then died, her husband would be entitled 
 to his distributive share of what was left. 
 His deed only estops him to the extent of 
 the purposes therein declared. But those 
 purposes were, to reimburse the complain- 
 ants, and then secure the fund to his wife 
 during her life. Mrs. Hamilton, however, 
 never parted with her inheritance. Joseph 
 A. Hamilton's interest, which accrued on the 
 death of his wife, was affected by his cove- 
 nant in the deed of November, 1849. (1 Inst. 
 476.) But the complainants can only be re- 
 garded as incumbrancers to the extent of 
 their claim ; and, subject thereto, the in- 
 terest of Hamilton, vested in the defendant, 
 Keller, under his purchase at sheriffs sales. 
 (2 StoiT, E(i. § 790.) 
 
 It is ordered and decreed, that the house 
 and lot be sold by the Commissioner, at such 
 time and on such terms as the parties in- 
 terested, or their solicitors, may agree upon ; 
 and in default of such agreement, as the 
 Court may fix by a future order; that from 
 the proceeds of sale the cost of these pro- 
 ceedings be first paid; that two-thirds of 
 the residue to be distributed among the chil- 
 dren of Christiana Hamilton, deceased ; that 
 
 *438 
 out of the re*maining third, the complainants 
 lie reimbursed the amount paid to Nathaniel 
 J. Davis, with interest thereon ; as also the 
 value of the services of the two slaves for 
 the year 1840, and of the horse furnished ; 
 upon which several amounts the Commis- 
 .sioner is directed to report ; that the surplus 
 
 174 
 
 of the said third be paid to the defendant, 
 David Keller. 
 
 The defendant, David Keller, appealed, on 
 the grounds: 
 
 1. Because, at the first sale by the sheriff, 
 N. J. Davis purchased the right to the 
 usufruct during the joint lives of Hamilton 
 and wife, Avhich he enjoyed ; and he is not 
 entitled to be reimbursed from any source. 
 
 2. Because the deed of 10th November, 
 1849, is a mere nullity. N. J. Davis never 
 executed it. Joseph A. Hamilton had no 
 right whleh he could convey ; all his interest, 
 during the life time of his wife, having been 
 previously conveyed by the sheriff to N. J. 
 Davis ; and Mrs. Hamilton, beijig a feme 
 covert, could not convey, without relinquish- 
 ing her inheritance. 
 
 .3. Because tlie distributive share of J. A. 
 Hamilton in his wife's estate, which had no 
 existence until her death, is improperly 
 charged with the purchase of N. J. Davis, 
 and the expenses of the family of Hamilton 
 for the year 1840. 
 
 4. If the deed of November, 1840. is held to 
 be good as against Hamilton, that will not 
 authorize the incumbering of his share with 
 what N. J. Davis paid for the usufruct dur- 
 ing the joint lives of Hamilton and wife. 
 
 5. But if the purchase of N. J. Davis is an 
 incumbrance upon the estate, it is an incum- 
 brance upon the whole estate, and not a 
 charge exclusively upon the share of Hamil- 
 ton ; and whether it constitutes a charge up- 
 on the whole, or upon Hamilton's share, that 
 incund)raiice has already been more than dis- 
 charged by rents and profits received exclu- 
 sively by the complainants. 
 
 6. The deed re<iuired the complainants to 
 sell the lot. and from the proceeds to pay 
 to the said N. J. Davis the amount of his bid,^ 
 &c. The sale has not been made, but the 
 
 *439 
 rents and *profits. since the death of Mrs. 
 Hamilton, will more than pay Davis the 
 amount of his bid at the first sale. 
 
 7. Because, at the time of the execution of 
 the said supposed deed, Hamilton was large- 
 ly indebted, by judgments, to defendant, 
 Keller, and others ; and any attempted con- 
 veyance by him of any interest he had, or 
 might have, in the premises, would be fraud- 
 ulent, and void as to creditors. 
 
 8. If the share of J. A. Hamilton is affect- 
 ed by his covenant in the deed, it can only 
 be so to the extent of the consideration re- 
 ceived by himself and family, and that is 
 limited to the expenses of 1849, already reim- 
 bursed. If his share is to be burdened witli 
 the bid of N. J. Davis, complainants should 
 be required to account for the rents and 
 profits of the premises, of which they have 
 been in possession. 
 
 The plaintiffs also appealed: 
 
 Because the deed of 10th November, 1849, 
 founded on a good consideration, was a valid 
 conveyance of the possibility of Joseph A.
 
 WRIGHT V. HERRON 
 
 #442 
 
 Hamilton to complainants, and an estoppel to 
 Jim, and all claiming under him, or was an 
 ^ssiiiiunent of all bis possible interest to eom- 
 l)lainants. 
 
 Wilson. Mefiowan, for defendant. 
 Thomson, eontra. 
 
 The <)]iiinoii of the Court was delivered by 
 
 DUNKIN. Ch. The deed of November, 
 1S49. though void as to Christiana Hamilton, 
 was valid as to her liusband, .T()sei)h A. Ham- 
 ilton: and so it was ruli'd in Brown v. 
 .•>i)ann, 2 Mill, 12. The deed purported to 
 o'/uve.v the entire premises, with a general 
 warranty. However limited the interest of 
 llannlton might then have been, or if he had 
 no interest, this atfected the right which 
 he subsequently acquired upon the death of 
 his wife. Such is the doctrine of the au- 
 Ihority cited in the decree; and in 1 Atk. 
 IMt. it is said, if a man convey land which 
 
 ="=440 
 is not *his. and he afterwards purchase the 
 land, or it descend to him, the lease shall 
 enure by way of estoppel. The subject is 
 ehUiorately discussed by the Court of Ap- 
 peals in Equity, in the case of the adminis- 
 trator of Smith V. Buford, INIs. Col. 1822. 
 
 The deed of November, 1S4!), was sustained 
 liy valuable consideration, and. if the grantee 
 had been a stranger, it would seem to follow, 
 that, on the death of Mrs. Hamilton, the 
 right of her husband was in his grantee un- 
 (h>r the deed of November. The right of Mrs. 
 Hamilton's children not being affected by the 
 iU'Vil, two-thirds of the inheritance vested 
 ill tlHMU. and they became, at law. tenants in 
 ( ommon with the grantees under the deed of 
 November, 1849. But, for the reasons stated 
 in the decree, the title in this Court is con- 
 . Idered to pass to the grantees only for cer- 
 tain purposes, and when those purposes 
 were accomplished, the grantees were ac- 
 countable for the residue or surplus. It 
 makes no difference in the relative rights of 
 the parties, that the grantees in the deed 
 w(^re sons of Mrs. Hamilton. They paid a 
 \;ilualile consi(|(>ration, and occupy the posi- 
 tion of purchasers. The (luestion of most 
 dnul)t is, whether any interest passed to the 
 defendant. Keller, under the purchase from 
 the sheriff", in .January, 1S.jO. The principle 
 is thus stated by Sir James Wigram. in 
 I'.ourne v. Bourne, 2 Hare. iJS: "If the trus- 
 tee had taken tlie property with absolute di- 
 rections to sell and convert it, the circum- 
 stance, that the directions had not been car- 
 ri(>d into effVct at the deatli of the testator, 
 might have been innuaterial, and it might 
 liave been treated as personalty. I'.ut. in this 
 case, there was no absolute or compulsory 
 direction for the sale or conversion of the 
 estate ; it is merely an authority, in a certain 
 event, to enter into possession of this estate, 
 and. at the discretion of the trustee, to sell 
 
 it. for the purpose of recovering payment of 
 the debt for the mortgage." So, here, the 
 Circuit Chancellor thought there was no 
 such clear indication that the land should 
 be converted, out and out. as to prevent it 
 from retaining tlie character of realty. It 
 is not very clear. But Keller is also a judg- 
 ment creditor of Hanulton ; and, besides, 
 there is no appeal on this point. It is not 
 
 *441 
 an impnry in which *the complainants have 
 any interest. It could only be important to 
 Jo.seph A. Hanulton, or his general creditors. 
 It is ordered and decreed, that the appeal 
 be dismissed. 
 
 JOHNSTON. DARCAN and WARDLAW, 
 CC, concurred. 
 Decree aliirmed. 
 
 5 Rich. Eq. 44r 
 
 JONATHAN WKKHIT and Others v. WII^ 
 LIAM II. HERRON and Others. 
 
 (Columbia. May Term, 1853.) 
 
 [Deeds (©=> 120.1 
 
 The (Iced conveyed, with warranty, to N. H. 
 "and tlie heirs of her body," a tract of land, 
 "unto the said N. H.. and the heirs of her body 
 and assigns forever ;"—//(■/(/, that N. H. took 
 an estate in fee conditional. 
 
 [Ed. Note. — Cited in Withers v. Jenkins, 14 
 S. C. COS, 012: (iaffnev v. Peeler, 21 S. C. 
 OS, 09: Miller v. Graham, 47 S. C. 294, 290. 
 2.5 S. E. 105: McMichaol v. .McMicliael. 51 
 S. C. 558.. 29 S. E. 403: Crawford v. Masters, 
 98 S. C. 461, 82 S. E. 794. 
 
 For other cases, see Deeds, Cent. Disr. §§ 
 .3,561/2, 357, 420. 449; Dec. Dig. <®==>120.] 
 
 The (luestion. whether the husband surviv- 
 ing, is entitled to hold for life as tenant by the 
 curtesy, where the wife was tenant in fee con- 
 ditional, referred to the Court of Errors. 
 
 [This case is also cited in Oaffney v. Peeler, 
 21 S. C. 07, as to the right of curtesy in 
 fee-simple estates.] 
 
 Before Dargan, Ch., at Darlington, Feb- 
 ruary, 1853. 
 
 Dargan, Ch. Newit Delk, by a deed dated 
 isth June, A. D. 1830. "for and in considera- 
 tion of one dollar in hand paid, as also for 
 the good will and affection which he bore 
 towards his daughter, Nancy Ilerron ; also 
 for the better maintenance, support and liveli- 
 hood of the said Nancy Ilerron and the heirs 
 of her body," conveyed in proper words, "to 
 the said Nancy Ilerron, and the heirs of her 
 body," the laud described in the pleadings, 
 "unto the .said Nancy Herron. and the heirs 
 of her body and assigns, forever, peaceably 
 and quietly to have and to hold, use and oc- 
 cupy, possess and enjoy, the said land grant- 
 ed and contirmed, against all other gifts, 
 grants, bargains, sales, and against the said 
 
 *442 
 Newit Delk, his heirs and assigns, *or any 
 other person, or i>er.sons, lawfully claiming 
 the same, or any part thereof." 
 
 ^zsFoT other cases see bame topic aud KEY-NUMBER ia all Key-Numbered Digests and Indexes 
 
 175
 
 *442 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 Nancy Herron was, at the date of this 
 deed, the wife of the defendant, W. H. Her- 
 ron, and had at that time live children. She 
 departed this life in the year 1S4S, leaving 
 her husband surviving her ; and also leaving 
 eleven children, one of whom (a daughter) 
 has since died, leaving one child of tender 
 years ; some of the other heirs of lier body 
 are infants, and all of her lieirs, including 
 the husband, are parties to the cause, either 
 complainants or defendants. 
 
 The bill is filed liy Jonathan Wright and 
 Eliza Ms wife, (a daughter of Nancy Her- 
 ron,) and Darius L. Stuckey and Margaret 
 his wife, (also a daughter of Nancy Herron.) 
 against the other heirs of tlie body of tlie 
 said Nancy Herron, and her surviving lius- 
 band, the said William H. Herron. The 
 plaintiffs claim that the deed of Newit Delk 
 created a fee conditional in Nancy Herron. 
 which, on her death, descended to the heirs 
 of lier body. They pray for a partition of 
 the land among the heirs of the body of the 
 i-nid Nancy Herron ; and that tlie said W. H. 
 Herron, who has used and occupied the 
 premises since the death of his wife, may be 
 decreed to account for tlie rents and profits. 
 
 William H. Herron, in his answer, admits 
 all the material allegations of the plaintifCs' 
 bill. He concurs with them in the construc- 
 tion of the deed, which makes the estate a 
 fee conditional in Nancy Herron. He ad- 
 mits, that on her death it descended to the 
 heirs of her body ; subject, nevertheless, to 
 a life estate in himself, as tenant by the 
 curtesy. He therefore contends that he is 
 entitled to enjoy the estate during bis life, 
 free from any accounting for the rents and 
 profits, and that the plaintiffs are not en- 
 titled to any present partition. 
 
 I assume, as beyond debate, that the fee 
 conditional is recognized in the jurisprudence 
 of South-Carolina. There are so many de- 
 cisions to this effect, that to deny the propo- 
 sition would manifest the most daring ir- 
 reverence for established principles and in- 
 stitutions. I assume further, that a grant 
 
 *443 
 or devise to *one, and the heirs of his body, 
 is the niost pi-oper and apt form of language 
 to create such an estate. What was a fee 
 conditional, as it was known to the common 
 law, before the statute de donis condition- 
 alibus? It was an estate, upon the condition 
 that the first taker had heirs of his body, 
 to whom, upon his death, the estate was to 
 descend, per formam doni, from generation 
 to generation, until the line of the donee be- 
 came extinct. By considering it an estate 
 upon condition, it came to be held, that when 
 the donee had issue capable of inheriting the 
 estate, he had performed the condition. By 
 this, his estate became enlarged, so as to 
 admit of its being alienated in his life, though 
 it could not be the subject of devise. Upon 
 the failure of heirs capable of inheriting the 
 estate, it reverted to the donor. It admitted 
 
 176 
 
 of restrictions, which confined the descent of 
 the estate to issue of a particular class — as 
 heirs male or female. As an estate of in- 
 heritance, it was subject to dower and cur- 
 tesy. These are the principal incidents by 
 which this estate may be defined. 
 
 The statute de donis destroyed the alien- 
 able qualities of the estate, and in the other 
 respects left it very much as it was before. 
 The effect of this legislation converted the 
 possibility of reverter to the donor into a 
 reversion. The estate tail into which the fee 
 conditional was transmvted, thenceforward 
 became in England a particulfir estate, capa- 
 ble <»f sui>porting a remainder. Where no re- 
 mainder was limited upon the fee tail, on its 
 termination by natural eflux, or in any other 
 way, there was a reversion to the donor. 
 The fee tail, though a less estate than the 
 fee conditional, was subject to dower and 
 curtesy : 
 
 "Tenant by the curtesy is he. who after his 
 wife's death, (having hnd issue by her in- 
 heritable,) is introduced into her inheritance, 
 and has an estate for life therein ; and he 
 is so called from the xuvor or curtesy of that 
 law, which made thJs provision for him." 
 Bac. Abr. Tit. Curtesy. The estate must be 
 descendible. The condition seems to be, that 
 the issue of such husband may by possibility 
 inherit. lb. letter C 
 
 *444 
 
 * Before the statute de donis, conditional 
 fees were subject to curtesy ; when that stat- 
 ute converted them into estates tail, hus- 
 bands were allowed to be tenants by the cur- 
 tesy of them also. 1 Cruise, Dig. 117 ; 8 
 Rep. 70 ; 2 Inst. 336. In Paine's case, a hus- 
 band was allowed his curtesy in an estate 
 tail, after the po&'Jbility of issue extinct. 8 
 Rep. 67. 
 
 The curtesy of the husband and the dower 
 of the wife seem to be correlative estates. 
 While curtesy is a provision for life, allowed 
 to the husband oai of his deceased wife's in- 
 heritance ; dower is a similar provision in 
 favor of the wife, out of the descendible es- 
 tate of her deceased husband. There is a 
 remarkable analogy between these two free- 
 hold estates, in the circumstances under 
 which they arise. In each, the estate is for 
 life onl.v. In each, there must be seizin. 
 They attach "upon legal, not upon trust es- 
 tates. In each, the estate upon which they 
 are engrafted must be a descendible estate ; 
 and descendible to such heirs as the husband 
 or wife (as the case may be) might have had 
 born to them in their life, capable of inherit- 
 ing the estate. 
 
 The statute de donis has never been of 
 force in S:uth-Carolina, and the statute of 
 distributions (1781) does not bear upon the 
 question here presented : Whether a husband 
 can have his cui'tesy in his deceased wife's 
 fee conditional estates. In the first clause 
 of the last mentioned statute, it is declared, 
 in sweeping language applicable to all in-
 
 WRIGHT V. IIERRON 
 
 •447 
 
 herltances, "that the right of i»riuiogeniture 
 be, and the same is, hereby abolished." This 
 clause, I apprehend, will apply equally to 
 fees conditional as to fees simple. In the 
 fee conditional, instead of descending accord- 
 ing to the law of primogeniture, it would de- 
 scend to all the issue, who could bring them- 
 selves within the descrii)tioi) of the gift, as 
 tenants in common, and to take per capita. 
 
 The subsequent parts of the Act clearly re- 
 late to the distribution of fee simple estates: 
 for, after declaring the alK)litlon of the right 
 of primogenit\ire, it proceeds to enact "that 
 when any person possessed of, interested in, 
 or entitled unto, a real estate in his or her 
 own right, in fee simple, shall die without 
 
 ♦445 
 dispos*ing thereof by will, the .same .'ihall lie 
 distributed in the following manner." Then 
 follows the various clauses, directing the 
 mode of distributing such estates, that is to 
 say, fee simple estates. This Act makes no 
 Innovation upon the common law principles 
 which govern the fee conditional, except so 
 far as it relates to the abolition of the right 
 of primogeniture. It is imiiossible to sup- 
 pose that the sulis(>quent clauses of this stat- 
 ute have any bearing upon, or can modify the 
 doctrines of the fee conditional, for refer- 
 ence is only made to fee simple estates. If 
 its provisions embrace the fee conditional, 
 then that estate is destroye<l, and does not 
 exist in South-Carolina. The statute speaks 
 of intestate property. Rut the fee condition- 
 al is not the intestate property of the de- 
 ceased tenant last seized. He has no power 
 of devising it. Nor is such an estate dis- 
 tributable on his death among his heirs gen- 
 eral ; but it descends, per formam doni, to 
 such of the heirs of his body as are entitled 
 to take, ajccording to the terms of the deed, 
 or will, which created the estate. On the 
 failure of such issue, it does not go to col- 
 laterals, and next of kin, (as the statute dis- 
 poses, in such case, of a fee simple.) but it 
 reverts to the donor or his heirs. There is 
 not a feature in the distributory clauses 
 which can be imagined to relate to the fee 
 conditional, consistently with the preserva- 
 tion of the estate. Is there any legislation, 
 whatever, modifying the common law in- 
 cidents of the fee conditional? I am aware 
 of none. If this proposition he admitted, 
 no alternative is left me. but to decide ac- 
 cording to the principles of the common law. 
 If the common law concedes to the husband 
 an estate by the curtesy, in the fee condition- 
 al of his deceased wife, (there being no legi.<;- 
 lation ui)on the subject,) the Court has no 
 discretion or authority to disallow the claim. 
 Why should we revere the principle, which 
 secured the reverter to the donor — or that 
 which compelled the descent to the issue per 
 formam doni. — and deny his curtesy to the 
 husband? All these rights stand precisely 
 upon the same authority. And it seems to 
 me that It would be a very great Inconslst- 
 5 Rich. Eq.— 12 
 
 ency to respect and enforce one of them, 
 rather than another. It would not bt^ irrel- 
 
 ♦446 
 evant on ♦this question, to iiniuirc whether the 
 correlative estate of dower is allowed by the 
 law of South-Carolina, in the fee conditional. 
 That it was allowed by the ancient common 
 law, in such an estate, and that it is allowed 
 by the present law of England, in fees tail. Is 
 Indisputable. The statute yf ITHl does not 
 take away, ab.solutely, the widow's dower in 
 fee simple estates. It makes a provision for 
 her out of the husband's intestate property, 
 and re<iuires her to elect between the statu- 
 tory provision and her common law right of 
 dower. The statutory provision, wljen ac- 
 cepted, is in lieu of, and in bar of dower. 
 This is expressly upon the principle of com- 
 pensation. Her distributive share is con- 
 sidered an equivalent. But in tiie fee* condi- 
 tional there can be no compensation or equiv- 
 alent. There is nothing which she can re- 
 ceive "in lieu" of dower, l-'or that estate 
 descends to the heirs of the body per formam 
 doni. I see no reasonable ground for saying 
 that the widow's right of dower, in the fee 
 conditional, is abolished. And if dower be 
 allowed in such an estate.- why should not 
 the corresponding estate of curtesy be also 
 allowed? 
 
 The Act of 1791 makes no special provision 
 as to the husband's estate, by the curtesy, 
 in his wife's fee simple estate. In the Gth 
 clause it declares, that "on the death of any 
 married woman, the husband shall b»» en- 
 titled to the same share of her real estate, as 
 is herein given to the widow out of the es- 
 tate of the husband." I'pon the construction 
 of the Act, it has been held, that the hus- 
 band is not entitled to his curtesy in fee sim- 
 ple estates. But. as the widow is allowed to 
 elect between her distributive share anil her 
 dower, and as the Act expressl\ declares 
 that the husband shall be entitled to the 
 same share, in his deceased wife's real estate, 
 as it allows to the widow, out of the hus- 
 band's estate, would it not be a just c-on- 
 structlon, to allow the husband his election 
 between his distributive share and bis cur- 
 tesy, and this even in fee simple estates? Is 
 there any case which adjudges this question 
 — which refuses him his election? 
 
 As to his estate by the curtesy, in the fee 
 ♦447 
 conditional of his ♦deceased wife, there is, in 
 my judgment, no reason, precedent or au- 
 thority for disallowing it. I conclude what 
 I have to say upon this interesting question, 
 by referring to the able oi)inion of Chan- 
 cellor Johnston, in the circuit decree, in Mc- 
 Lure v. Young, 3 Rich. Eq. 550. 
 
 It will be proper for me now to notice some 
 other views as to the construction of the deed, 
 that were urged at the trial of the cause. In 
 the habendum of the deed, the words are, 
 "unto the said Nancy Ilerron. and the neirs 
 of her body, and assigns forever," &c It was 
 
 177
 
 *447 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 suggested that the words, 'and assigns," 
 might mal<e a difference in tlie construction. 
 It does not very clearly appear, whether by 
 the words were intended the assignees of 
 Nancy Ilerron, or the assignees of the heirs 
 of her body. From the analogy, which this 
 expression bears to the usual form of con- 
 veyances of fee simple estates, I apprehend it 
 must be considered as meaning the assignees 
 of Nancy Herron. If there be any force in 
 the argument, as urged in behalf of the is- 
 sue of Nancy Herron, and if the words have 
 any power in modifying the construction, it 
 must be to enlarge the estate from a fee con- 
 ditional to a fee simple. This would be ad- 
 verse to the parties urging the objection: for, 
 if it be a fee simple, the iuisband would be 
 entitled to take one-third absolutely, under 
 the statute of distributions. But I think 
 the expression, ("and assigns,") whether it 
 means the assignees of Nancy Herron, or the 
 assignees of the heirs of her body, can have 
 no modifying influence upon the interpreta- 
 tion. Certainly, the estate in fee conditional 
 is assignable absolutely, when the condi- 
 tion is performed; and before the birth of 
 issue, it is assignable for the life of the ten- 
 ant, for the lime being, and so of every tenant 
 for life in succession: thus the rule of con- 
 struction, which demands, where it is possi- 
 ble, that every part of a deed must have some 
 meaning, is satisfied, without resorting to a 
 forced construction, to defeat the obvious in- 
 tention which the grantor had, of giving some 
 interest to the heirs of the body. 
 
 Again, it has been urged, that because the 
 grantor warranted the title generally, and es- 
 
 *448 
 pecially against himself and those *who 
 claimed by, or through him, the idea of a re- 
 verter to himself is excluded or negatived. 
 Again, I say, that the objection, if allowed, 
 would be adverse to the parties making it: 
 for, if there be no reverter, there can be no 
 fee conditional ; and if no fee conditional, it 
 must be a fee simple — in which case the ims- 
 band would be entitled to one-third, in fee, 
 as his distributive share. 
 
 But it is a petitio principii to say, that the 
 warranty excludes the idea of reverter. 
 What title the grantor warranted, depends 
 upon what title he intended to convey. If, 
 from the other parts of the deed, it appears 
 that the grantor intended to give to Nancy 
 Herron a fee conditional, it would be a per- 
 version of the language employed, to say that 
 his warranty covered a larger estate than he 
 intended to create. It is needless to dwell on 
 this point. 
 
 In the judgment of the Court, the estate cre- 
 ated by the deed of Newit Delk, to Nancy 
 Herron, is a fee conditional, and that her sur- 
 viving husband, W. H. Herron, is entitled to 
 hold the said estate for his life, as tenant by 
 the curtesy. 
 
 It is ordered and decreed, that the bill be 
 dismissed. 
 178 
 
 The plaintiffs appealed, and moved this 
 Court to reverse the decree, on the grounds: 
 
 1. Because his Honor erred in nolding that 
 Mrs. Herron took a fee conditional in the 
 lands conveyed to her by the deed referred to 
 in the pleadings. 
 
 2. That under a proper construction of said 
 deed, INIrs. Ilerron took a life estate in the 
 land, and, at her death, the remainder vested 
 in her children absolutely, as purchasers ; 
 or, if this construction is erroneous, then 
 Mrs. Herron and her children were jointly 
 seized. 
 
 3. That the estate of tenancy by the curte- 
 sy does not exist in this State, has never been 
 recognizd by our Courts, and the reason and 
 policy upon which it was founded in Eng- 
 land does not exist here; and that his Hon- 
 or erred in holding that W. H. Herron was 
 entitled to said lands for life, as tenant by 
 the curtesy. 
 
 *449 
 
 *4. Because the decree was, in other re- 
 spects, contrary to Law, Equity, and a proper 
 construction of the deed. 
 
 [For subsequent opinion, see G Rich. Eq. 
 40G.] 
 
 Dargan, for appellants. 
 Moses, contra. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW, Ch. Whatever diversity of 
 opinion there may be among the judges of 
 this State, concerning the impJication of a fee 
 conditional, and as to some of the incidents of 
 the estate, the exi.stence of the estate itself, 
 with most of its attributes, according to the 
 Conunon Law, has been recognized by many 
 decisions of our Courts. (a) If there be mis- 
 chiefs in this state of the law, the Legisla- 
 ture alone can correct them. 
 
 In the present instance, the grantor in the 
 deed creates a fee conditional in strict, tech- 
 nical form, by donation to Nancy Herron and 
 the heirs of her body. There is neither need 
 nor room for implication. In the tenendum 
 of the deed, the terms of tenure are, "unto 
 the said Nancy Herron, and the heirs of 
 her body, and assigns, forever ;" and, in the 
 
 (rt) MurreU v. Mathews, 1 Brev. 190 ; [Id.] 
 2 Bay, o'JT ; Jones ads. Postell & Potter, Harp. 
 92: Bedon v. Bedon, 2 Bail. 231; Cruger v. 
 Heyward, 2 Des. 112, 429 ; Thomas v. Benson, 
 4 Des. 18; Milledge v. Lamar. 4 Des. (J3S ; 
 Carr v. Porter, 1 McC. Eq. 90; Henry v. Felder, 
 
 2 McC. Eq. 330; Mazyck v. Vanderhorst, Bail. 
 Eq. 49; Izard v. Middleton, Bail. Eq. 228; 
 Adams v. Chaplin, 1 Hill. Eq. 208, 276; Ed- 
 wards v. Barksdale, 2 Hill, Eq. 189, 196; Deas 
 V. Horry, 2 Hill, Eq. 246; Gray v. Givens, 2 
 Hill, Eq. 511; Laborde v. Penn, McM. Eq. 448; 
 Dehay v. Porcher, 1 Rich. Eq. 269; Whitworth 
 v. Stuckey, 1 Rich. Eq. 404 ; Chaplin v. Turn- 
 er, 2 Ricii. Eq. 138 ; Hull v. Hull, 2 Strob. Eq. 
 189; [Id.] 3 Rich. Eq. 77; Smith v. Hilliard, 
 
 3 Strob. Eq. 214 ; Barksdale v. Gamage, 3 
 Rich. Eq. 271 ; Hay v. Hay, 3 Rich. Eq. 390 ; 
 MoLure v. Young, 3 Rich. Eq. 563, 574 ; Buist 
 v. Dawes, 4 Rich. Eq. 421; Bailey v. Seabrook, 
 Rich. Eq. Cas. 419.
 
 PARRIS V. COBB 
 
 *451 
 
 ai'ffuinent, much stress is laid upon the word 
 "assigns." But it is pkiin tliat the term "as- 
 signs," by grammatical construction, must be 
 referred to Nancy Ilerron, the tenant in fee 
 conditional ; and that, if it could be construed 
 to refer to the heirs of her body, it cannot 
 enlarge the heirs to take the inheritance, and 
 expresses merely by pleonasm the rii.'ht of "as- 
 signment" or alienation incident to the estate. 
 We are satisfied with the reasoning and con- 
 
 *450 
 elusion *of the Chancellor on this point; and 
 it is adjudged and decreed, that Nancy Her- 
 ron took an estate in fee conditional. 
 
 This Court is not agreed on the question, 
 whether the surviving husband of Nancy Iler- 
 ron be entitled to hold for his life, the whole 
 lands, as tenant by the curtesy; and two 
 Chancellors request, that this question be 
 referred to the Court of Errors. 
 
 It is, therefore, ordered, that it be referred 
 to the Court of Errors, to determine the ques- 
 tion, whether the surviving husljand of a wife, 
 who is tenant in fee couditional.be entitled to 
 hold by the curtesy, the land for his life, con- 
 veyed to the wife in fee conditional. 
 
 JOHNSTON, DUNKIN and DARGAN, CC, 
 concurred. 
 
 5 Rich. Eq. 450 
 
 WILLIAM PARRIS and Others v. AMAZIAH 
 B. COBB and Others. 
 
 (Columbia. May Term, 1853.) 
 
 [Executors and Administrators <©=3.3.] 
 
 For any residue undisposed of by the will, 
 the executor is a trustee for the distributees, 
 and liable to account directly to them: — no ad- 
 ministration is necessary. 
 
 [Ed. Note. — ^^Cited in Richardson v. Manning, 
 12 Rich. Eq. 485. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 3; Dec. Dig. <S=33.] 
 
 [Limitation of Actions <S=>46.] 
 
 The statute of limitations does not com- 
 mence to run, in favor of a general agent, until 
 the termination of the agency. 
 
 [Ed. Note. — For other cases, see Limitation 
 of Actions, Cent. Dig. § 247 ; Dec. Dig. <©=540.] 
 
 [Slaves <S=>7.] 
 
 An executor, claiming slaves under a gift 
 (declared fraudulent) from the testator in his 
 life time, not protected by the statute of limi- 
 tations — his adverse possession not having con- 
 tinued four years before the death of testator. 
 [Ed. Note. — For other cases, see Slaves, Cent. 
 Dig. §§ 20-29; Dec. Dig. <©=:57.] 
 
 [Deeds <&=>68.] 
 
 A deed of slaves and other personalty, recit- 
 ing the consideration to be money advanced, 
 &c., and love and affection, from a grandfather, 
 ninety years of age, to iiis grandson and agent, 
 set aside as obtained by fraud and undue influ- 
 ence. 
 
 [Ed. Note.— Cited in Pressley v. Kemp, 16 
 S. C. 347, 42 Am. Rep. 635. 
 
 For other cases, see Deeds, Cent. Dig. § 153; 
 Dec. Dig. <S=>6S.] 
 
 • [Wills <©=>55.1 
 
 The donor had at the same time executed 
 his will, appointing the graud.son and aueiit ex- 
 ecutor: the will had been impeached on the 
 same grounds on which the deed was now im- 
 I)eached: — Held, that there was no variance be- 
 tween tlie decree setting aside the deed, and the 
 judgment sustaining the validity of the will. 
 
 I Ed. Note. — For other cases, see Wills. Cent. 
 Dig. §§ 137-158, 161; Dec. Dig. <©=5o.] 
 
 [Gifts C=>38.] 
 
 Principles upon which the Court proceeds 
 in determininir whether a gift by a principal to 
 an agent, imi)eached on the ground of weakness 
 of mind, fraud and undue influence, is valid or 
 invalid — the same principles ap|ily to all the 
 variety of relations in which doniiniou may be 
 exercised by one i)erson over another: it should 
 
 *451 
 be made to appear, in *order to support the sift, 
 that the confidence has not been abu.><ed : that 
 all was fair ; that the agent received the bounty 
 freely and knowingly on the giver's part. 
 
 [Ed. Note.— Cited in Ex parte Gadsden, 89 S. 
 C. ;{(;4, 71 S. E. 952. 
 
 For other cases, see Gifts, Cent. Dig. § 74 ; 
 Dec. Dig. <g=33S.J 
 
 [This case is also cited in Norris v. Cobb, 8 
 Rich. 58, as to facts.] 
 
 Before Dunkln, Ch., at Anderson, June, 
 1852. 
 
 Duukin, Ch. On the 27th September, 1847, 
 Henry Parris died, at the advanced age of 
 between ninety and one hundred years. He 
 had made his will on the 28th April, 1843, 
 being at that time, according to the report 
 of the Judge in a proceeding on that matter, 
 ninety years of age. At the time of making 
 his will, the testator had three sons, to wit: 
 William Parris, complainant; Moses I'arris 
 and John Parris ; and four daughters, to wit: 
 Eleanor Cobb, (wife of Henry Cobb, since de- 
 ceased, and mother of the defendant, A. B. 
 Cobb ;) Laurania, or Lauraney Jenkins, wife 
 of Roily Jenkins ; Mary Mauldin, wife of 
 Rucker Mauldin ; and Elizabeth Gordon, and a 
 lunatic daughter, Nancy Parris. By his will, 
 the testator bequeaths a negro, Caroline, to 
 the complainant, William Parris, and the ne- 
 gro girl, Harriet, to the complainant, Mary 
 Parris, daughter of Wm. Parris, and since the 
 wife of the complainant, James Hickey. To 
 Lauraney Jenkins, he betiueaths some slaves; 
 but it appears that these were already the 
 property of her husband, Roily Jenkins, as 
 well as a family which he leaves to his son, 
 Moses Parris: all were in the possession of 
 Roily Jenkins, at the date of the wi.ll, and 
 had been for years previously. To his son, 
 John Parris, he leaves five dollars, and to 
 his daughter, Elizabeth Gordon, one dollar. 
 He leaves the negro girl. Ann. to his execu- 
 tor, (the defendant, A. B. Cobb,) in trust, for 
 his daughter, Mary Mauldin, for life, and on 
 her death, the negro, with her increase, to 
 be divided between the complainant, William 
 Parris, and Eleanor Cobb. He directs that 
 his daughter, Nancy Parris, should live with 
 her sister. Mrs. Cobb, the slaves. Betsey and 
 
 «g=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 
 
 179
 
 <J51 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 her five children, remaining with her, for her 
 support ; and at her death, he leaves the 
 slaves to Eleanor Cohb and her heirs. To 
 his grand-daughter, Elizabeth Cobb, he be- 
 queaths the negro Sally and her increase. 
 The land on which he lived, and his slave, 
 Hence, he directs to be sold for the payment 
 of his debts. The will contains no residuary 
 
 *452 
 clause. *0n the death of the testator, his 
 will was proved in common form by the de- 
 fendant, A. B. Cobb, who qualified as ex- 
 ecutor. He says in his answer, that in a 
 short time after the death of Henry Parris, 
 the complainant, William Parris, who re- 
 sides in Tennessee, visited this State, and 
 made a demand of the negroes specifically 
 bequeathed to himself and his daughter ; 
 that the defendant "refused to deliver them, 
 because the estate was unsettled, and he had 
 not had time to settle it — that the estate 
 was considerably indebted, and there were 
 no assets to pay the debts, except the specific 
 legacies, which would require the legacies 
 to the complainants to abate proportional- 
 ly ;" that the complainant, finding he could 
 not obtain the property specifically bequeath- 
 ed, in company with other heirs at law, con- 
 tested the validity of the will, which litiga- 
 tion was finally determined in favor of the 
 will, by the Court of Appeals, in May, 1850. 
 It does not appear at what time precisely the 
 complainant came in and made the first de- 
 mand for the negroes specifically bequeathed 
 to him and his daughter; but from the an- 
 swer, it is to be inferred, that the contest 
 about the will soon followed the defendant's 
 refusal to give them up. From the record, 
 it is shown, that "the hei.rs commenced the 
 contest against the will, on the 27th Novem- 
 ber, 1848." A judgment was entered up 
 against the heirs for the costs, on the 11th 
 December, 1850; and the complainants, hav- 
 ing satisfied this judgment, again made a 
 demand of the negroes specifically bequeath- 
 ed under the will, which had been establish- 
 ed. The defendant admits that he refused 
 this second demand, because the complain- 
 ants did not "offer to pay their part of the 
 debts, and expenses of litigating the will, 
 though they arranged the judgment for the 
 taxed costs of the litigation." The defend- 
 ant further says, that he has no doubt, if he 
 had delivered the slaves when demanded the 
 first time, the litigation about the will never 
 would have arisen ; or, if they had been de- 
 livered, when demanded the second and third 
 times, this bill never would have been filed. 
 It seems there had been a third demand 
 
 *453 
 when the parties *met in the Ordinary's of- 
 fice, soon after the second demand and re- 
 fusal. 
 
 It may be important to inquire, what was 
 the apparent condition of Henry Parris's es- 
 tate in the Autumn of 1848, when the com- 
 plainants first applied for the property spe- 
 180 
 
 cifically bequeathed to them. The complain- 
 ants were then told that the estate was 
 considerably indebted — that there were no as- 
 sets — and that the specific legacies must 
 abate. It does not appear, nor is it suggest- 
 ed, that any statement was then exhibited. 
 The appraisement was made 2d February, 
 1848, and the sale of the property took place 
 within the month thereafter. No return was 
 made to the Ordinary tmtil 16th December, 
 1850 ; the controversy about the will having 
 terminated in the Appeal Court, May, 1850. 
 The appraisement, over and above the ne- 
 groes, amounted to $10.3.24 — the property 
 sold appears to have amounted to $52.25 — 
 the whole amount of the testator's indebted- 
 ness at the time of his death, (other than the 
 claims held by defendant, to be hereafter 
 noticed,) was $38.87 — the funeral expenses 
 and Ordinary's fees brought the amount to 
 $54.87. But the defendant avers, that, oa 
 certain transactions of his, as the agent of 
 the testator, testator owed him a balance of 
 $244.23, and as administrator of his father, 
 Henry Cobb, deceased, $184.50. Whether 
 anything, and how much, was due on these 
 claims, will depend entirely on an examina- 
 tion of the transactions between the defend- 
 ant, A. B. Cobb, and his principal In his 
 life time. Very much is it to be regretted, 
 that the legal representative of the estate, 
 who should defend its interests, and who 
 alone has the adequate means of proof, is 
 the only creditor calling for an abatement of 
 the specific legacies to satisfy the demands 
 which he sets up. It is, too, greatly to be 
 regretted, that these demands were not spe- 
 cifically brought to the notice of the parties 
 at an earlier date than the filing of the de- 
 fendant's answer. 
 
 In the Fall of 1848, four hundred and thir- 
 ty dollars would have satisfied every demand 
 which the defendant now insists on. This 
 sum, too, would have been ai^parently to be 
 paid from the slaves bequeathed to the com- 
 plainants — the slave Ann, bequeathed to Mrs. 
 Mauldin for life, and the slaves bequeathed 
 
 *454 
 *to Eleanor Cobb, (defendant's mother,) oa 
 the death of Nancy Parris, who had, in fact, 
 pre-deceased the testator. 
 
 The will, however, was disputed, and as 
 the defendant says, "after a severe contest," 
 was finally established. The record was in 
 evidence, together with the evidence of some 
 of the witnesses. ^V'^lieu the complainants, 
 having paid the costs of the litigation, 
 again demanded the negroes, they were met 
 with the same reply. But, in addition to 
 the former alleged indebtedness, the de- 
 fendant now insists that the sum of five 
 hundred dollars, for counsel fees in con- 
 troverting the will, should be charged on 
 the specific legacies, and, as will be presently 
 shewn, on the specific legacies of the com- 
 plainants alone. The effect of this would be 
 to exclude the complainants entirely, as their
 
 PARRIS V. COBB 
 
 »456 
 
 legacies would prohably be insufficient to 
 satisfy tlie demaiuls of tlie defendant. 
 
 Under lliese eireumstanee.s, tlie complain- 
 ants were eonipelh'd to ask the aid of this 
 Court, and in dohig so, they insist, that the 
 property really bflon«in>,' to the testator was 
 for more than sufficient to satisfy his just 
 debts, which were few and ineonsidi-rable if 
 any. Tlie answer of the defendant sub- 
 stantially insists that the debts and charfres 
 should be paid l)y the complainants alone. 
 Admitting,' the other specific legacies, he al- 
 leges that the slave Ann, Iteipieathed to Mrs. 
 Mauldin, bad been {,'iven by the testator to 
 the defendant's sister, Kli/.alieth Cobb, and 
 that the slaves b(H|ueatb<Ml to Kloanor Cobb, 
 defendant's niotlier, had been given in tes- 
 tator's life time, and were the property of 
 her husband, Henry Cobb, deceased, and that 
 the defendant took them as his administra- 
 tor. In the contest concerning the will, one 
 of the strongest arguments was. that tlu> will 
 was chiefly for the benefit of the defendant 
 and his family. But, according to the nar- 
 rative in the defendant's answer, his family 
 had no interest whatever in the will. On 
 the contrary, his si.ster and his mother held 
 by a title anterior to the will, and, in some 
 measure, in opposition to its provisions. The 
 answer insists that the testator left no prop- 
 erty, except the two slaves bequeathed to the 
 complainants, and .$52.25 worth of furniture, 
 
 *455 
 *&(:, and that the slave, Ann, which the 
 defendant had caused to be appraised, was in 
 fact not testator's property at his decease, 
 but the property of defendant's sister, under 
 a parol gift of the testator. It is unfortunate 
 here, too, that the instrument whidi the de- 
 fendant is officially bound to sustain, derives, 
 at least, no sup-port from his efforts. 
 
 It is not proposed, at this time, to dis- 
 cuss the various issues raised by the plead- 
 ings. It is admitted, that the complainants 
 are entitled to specific legacies under the 
 testator's will. The defendant in.sists that 
 the estate of his testator is Indebted to 
 him — that there were no assets to pay these 
 debts, and that the same, together with cer- 
 tain subsecpient charges, nmst be paid by the 
 specific legati'cs. On the part of the com- 
 plainants, the indebtedness is denied, and it 
 is. moreover, insisted, that the defendant has 
 received property and funds, belonging to 
 the estate, for which he ought to account, 
 and for which he has not accounted. It is 
 charged among other things, that about the 
 time when the validity of the will was con- 
 tested, in the Fall of 1848, the defendant 
 carried out of the State, and .sold, certain 
 slaves of the testator; and that he also 
 received certain oxen, cattle, horses, sheep, 
 &c., for which he has not accounted. As to 
 some of these negroes, to wit: Charity, 
 Frances. Eliza, David, Cinda, and Walker,' 
 six in number, the defendant admits, tiiat, in 
 1S48, he took them to Mississippi, and sold 
 
 them in the aggregate for ?.'?,000, or .$.1,050. 
 But he avers, that Henry Parris made him 
 a parol gift of these slaves in the latter part 
 of the year 1S41, or early in 1842.— and that 
 when lie was making his will, April 28, 184.'?, 
 he executed to him a deed of conveyance for 
 these slaves, and other property menti<ine<l 
 in the said deed, of which a copy is exhibit- 
 ed with tlie answer. The comi)lainants ob- 
 ject to the validity of this deed, in conse- 
 <iuence of the fiduciary relation in which the 
 defendant stood to Henry I'arrls; the con- 
 dition of his mind; and other circumstances 
 detailed in the testliiuuiy. 
 
 It appears that, in the early part of 1841. 
 the defendant went to live with his grand- 
 
 *456 
 father, Henry I'arris. The defendant 'was 
 a young man, and as well as the Court can 
 collect, had previously been engaged in negro 
 trading, (buying and .selling slaves,) in which 
 he had not been successful. His grandfather 
 was far advanced in years, being then mi the 
 verge of eternity, and was besides, allllcted 
 with a sore leg. He resided in (Jreenville 
 district, between three or four miles from 
 the Court-hou.se, on a place, which was after- 
 wards sold to Mrs. Townes, for seven hun- 
 dred dollar-s. The number of slaves which 
 he then had in possession does not precisely 
 appear. He managiil badly— the slaves diil 
 not make a support for him and them, and 
 he was not unfrequently indebted to Mrs. 
 Townes for sujiplies. 
 
 The defendant appears to the Court, to 
 have had the entire management of the 
 property so long as they remained together, 
 and to have acted as the agent of his grand- 
 father from that time, (early in 1841,) until 
 his death, in September, 1847. This is de- 
 ducible, not only from the current t)f the 
 testimony, but from the narrative contained 
 in the defendant's answer. When he took up 
 his residence at his grandfather's, the latter 
 was in possession of his homestead, of a 
 valuable slave named Hence, another called 
 Bob, and probably of some sixteen other 
 negroes, of more or less value. The defend- 
 ant's expression to one of the witnesses was, 
 that he had come to take care of his grand- 
 father, as he was old and childish. On the 
 28th April, 1843, the old man's will was 
 executed, with the provisions stated; on tlie 
 .same daj-, at the same time, the deed in 
 favor of the defendant was executed. Not 
 many months after this arrangement, the 
 estalilishnient near (Jreeiiville was abandon- 
 ed. Parris removed to Ander.son, to the resi- 
 dence of Henry Cobb, and the defendant 
 took possession of the Garrison iilace, three 
 or four miles distant from his father's, tak- 
 ing with him the negroes included in the 
 deed. It seems that, in '45 or '40, two ne- 
 groes were given to Mo.ses Parris. But be- 
 tween the period of the execution of the 
 deefl and the death of Henry Parris. in Sep- 
 tember, 1847, Hence, and probably Bob, and 
 
 181
 
 *456 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 certainly his homestead, had been disposed 
 of. At his death, the condition of his atlairs 
 was this: the defendant claimed and held 
 
 *457 
 the six negroes under the deed ; *his father, 
 Henry Cobb, or his mother, Eleanor Cobb, 
 laid claim to the remaining six negroes 
 enumerated in the fifth clause of the will, 
 alleging a parol gift by Henry Parris, sub- 
 sequent to the date of the will. The slave, 
 Ann, bequeathed to Mrs. Mauldin, was claim- 
 ed by defendant's sister, Elizabeth Cobb, 
 under another parol gift, said to have been 
 made after the execution of the will ; and, 
 notwithstanding the sales of property above 
 stated, the defendant now claims the only 
 remaining negroes, to wit: the two or three 
 bequeathed to the complainants, on the 
 ground that they are the only assets to pay 
 and satisfy the testator's indebtedness to 
 him, (the defendant,) contracted during his 
 agency, and in the transaction of his busi- 
 ness. So that, pending defendant's manage- 
 ment, sums, arising from the sales of prop- 
 erty, to a not less amount than $1,600 or 
 .$1,700, have been appropriated in some way, 
 and, excepting the two slaves to Moses Par- 
 ris, all the other slaves of the testator, with 
 the rest of his effects, will have become the 
 property of the defendant, and his immedi- 
 ate family. It is this extraordinary result 
 which has naturally stimulated an inquiry by 
 the complainants, not merely why the other 
 objects of tlie testator's bounty were over- 
 looked, or neglected ; but why the poor pit- 
 tance, allotted to those who were remember- 
 ed and noticed, should be taken from them. 
 
 The prominent question presented, relates 
 to the validity of the deed of April, 1843. 
 The complainants submit, that a transaction 
 of this character, between parties occupying 
 these relations to each other, is always re- 
 garded jealously ; and that when the com- 
 parative helplessness, both physical and in- 
 tellectual, of one of the parties is considered, 
 the Court will at least demand the most 
 ample and satisfactory proof, not only of 
 the fi'ee will of the donor, but, more espe- 
 cially, of his distinct comprehension of the 
 transaction in which he was engaged. 
 
 It is true, that this relationship between 
 the parties would not necessarily invalidate 
 a gift. As was argued in Huguenin v. Base- 
 ley, 14 Ves., 273, "there is no authority that 
 a mere agent is not capable of receiving a 
 
 *458 
 
 gift." But the propositions of Sir * Samuel 
 Romilly, in that case, received the distinct 
 approbation of Lord Eldon. He says, that 
 though the Court disclaimed any jurisdic- 
 tion to annul donations merely as being im- 
 provident, and that it was not necessary to 
 affirm that an agent might not accept any 
 bounty ; yet he says, the interference of the 
 Court stands upon a general principle, ap- 
 plying to all the variety of relations in which 
 dominion may be exercised by one person 
 182 
 
 over another. The Court regards such trans- 
 actions with a jealous eye. If the donor is. 
 a weak man, and liable to be imposed upon, 
 the Court "will very strictly examine the 
 conduct of the person in whose favor the 
 gift is made, and, if it sees any arts or strat- 
 agems, or any undue means have been used; 
 if it sees the least speck of imposition at 
 the bottom, or that the donor is in such a 
 situation, with respect to the donee, as may 
 naturally give an undue influence over him ; 
 if there be the least scintilla of fraud, this 
 Court will and ought to interpose ; and, by 
 the exercise of such a jurisdiction, they are 
 so far from infringing the right of aliena- 
 tion, which is the insepai'able incident of 
 property, that they act upon the principle 
 of securing the full, ample, and uninfluenced 
 enjoyment of it." Both the English and 
 American decisions upon this subject are 
 collected in White and Tudor's leading cases 
 in Eq., 2 vol., 406. No arbitrary general 
 rule can be established ; nor, as is suggest- 
 ed in one of the cases, "would it be advisa- 
 ble that any strict rule should be laid down 
 — any precise line be drawn. If it were 
 stated that certain acts should be the test, 
 or certain things should be required to rebut 
 the presumption, how easy would it be for 
 cunning men to place themselves beyond the 
 denunciations of the law." When these con- 
 fidential relations are shown to exist, it 
 should be made to appear, in order to sup- 
 port the deed, that the confidence has not 
 been abused — that all was fair — that the 
 agent received the bounty freely and know- 
 ingly on the giver's part. The circumstances 
 of each particular case are to be considered. 
 
 Let us apply these principles. The deed 
 on which the defendant relies, bears date 
 
 *459 
 28th April, 1843, and purports to *have been 
 executed in the presence of W. P. Turpin. 
 The consideration is thus stated, "in con- 
 sideration of four hundred and eightj'-nine 
 dollars and ninety-eight cents, money laid 
 out and expended in and about the manage- 
 ment of my business ; the justice of which 
 account has been acknowledged by me, paid 
 by Amaziah B. Cobb, and for the services, 
 care and attention, and the love and af- 
 fection to him, the said Amaziah B. Cobb,^ 
 (my grandson,) I bargain, sell and deliver 
 unto the said Amaziah B. Cobb, 'the slaves. 
 Charity, and her child, Julian, Dave, Walk- 
 er, Cinda, and Frances, and also the cattle, 
 horses, hogs, and sheep, that are at this 
 time upon the plantation,' " concluding with 
 a general warranty of the said bargained 
 property. 
 
 The defendant's account is, that "some 
 time shortly before or after the parol trans- 
 fer and delivery of the slaves," (said to 
 have been in the latter part of 1841, or early 
 in 1842,) "this defendant lent and advanced 
 to the said Henry Parris, the money above ~ 
 mentioned, ($489.98,) during the year 1841>
 
 PARRIS V COBB 
 
 •462 
 
 ji.s lias been before stated; and when, at the large portion of those in the donor's posses- 
 dniwiniL' of the deed, this defendant learned sion. But besides this, the deed made an 
 that the said Henry Parris was about to con- absolute and huuiediate transfer of 'the cat- 
 vey to hini tin- said slaves by deed, feeling tie, horses, hogs, an<l sheep, that were at that 
 grateful for his generous uuniltieence, this time uimjii the plantation." where the donor 
 defendant offered to include the note for lent resided. It was not a testamentary disposi- 
 money. which was accordingly done, and the tion, nor a donatio causa moitis, but an abso- 
 said Henry Parris added and included the lute bargain and sale, acc(»mpanied with a 
 other property mentioned in the deed." This warranty. If it was intended, that the donor 
 deed had l)een prepared by Joseph Powell, should at once be deprived of the use of the 
 some time before its exe<ution, listh April, cattle, horses, hogs, and sheep, which were 
 iS-i;;. but the said Henry Parris had delayed *461 
 
 its execution till the making of his will. so Indispensable for his support, "(not to In- 
 
 A large number of witnesses were exaraln- elude the .slaves.) it woubl in it.self be such 
 ed. as to the mental capacity of Henry Par- an act of improvidence, as would strongly im- 
 ris, at the time when this deed was executed, ply mental Imbecility, or undue inlluence, or 
 Some of the witnesses, such as .Tolin Watson, lx)th. Hut, if Henry Parris was still to re- 
 the Ordinary of Greenville district, "thought main in the pos.sesslon and enjoyment of the 
 iiim not a man of sound mind; he was weak, property, why did not this act of "generous 
 and subject to influence, &c.;" and others te.s- munificence," as it is termed by the defend- 
 tified, on the contrary, that he had good com- ant, constitute a clause of the will executed 
 nion sense, and always knew what he was at the same time? Without pursuing this in- 
 aliout. The Court will not pretend to review quiry, it seems hardly necessary to remark, 
 the evidence, but, In the course of the Investi- i that a party, situated as the defendant was, 
 gatlon. prefers to adopt certain leading and and claiming the benefit of this instrument, 
 admitted facts, and the statements of some ' should show that its provisions were well 
 *460 I understood, its effects well considered, and 
 
 of the defendant's witnesses, in *relatlon to j that the act done was the result of his own 
 the capacity of Henry Parris. The Court ' unbla.sed will. It is first proi)er to scan care- 
 can perceive no proof of what is i)roperly fully, the circumstances accompanying the 
 unsoundness of mind. He had arrived at an execution of the instrument. The law, for 
 age very rarely reached by any of his fellow- | wise purposes, has required that in .some 
 creatures. He had long passed the period dispositions of property, witnesses should 
 when "the .strength of man is but labor and be called to attest the transaction. This 
 sorrow." The defendant's highly resi)ectable is important for both parties. To te.stameu- 
 
 witness, George F. Townes. Ksq., who had 
 known him from his (witness") infancy, says, 
 in his cross-examination, that "Parris was 05 
 
 tary dispositions, a large number of witnesses 
 is retpilred — and one of the prominent rea- 
 sons is, to throw a guard around those who 
 
 years of age when he died, in 1N47. He never [are likely to require protection— to secure 
 was a smart man, his mind always was from imposition those whose situation may 
 weak." Another of the defendant's witnesses render them most obnoxious to its influence, 
 speaks of Ileni-j- I'arris. in April. 184.3, as be- |i)r. William P. Turpin is the attesting wit- 
 ing "very old and passive." Without the tes- ness to the deed of L'sfh April, 1843. He had 
 timony of witnesses, this would probably be never known Henry Parris until one week 
 the condition both of his mind and will, at previous, when he was called to see him pro- 
 thls advanced age. He was precisely in the ■ fessionally. He had visited him on the I'Tth 
 condition to be much under the influence of 'April, and tohl them he should not return un- 
 those about him, and such is the general cur- til the LTtth April. But, on the morning of 
 rent of the testimony. His age and his in- the L'8th, defendant called up.m him to" go 
 tirmltles demanded the attention of his and see his grandfather, and he acconqtanled 
 friends, that he should not act unadvisedly, him. He says, "his actpiainfance with Mr. 
 According to some of the evidence, one of the I'arris was limited; knew nothing of the 
 purposes of the defendant in going to live 'state of his mind at that time; he was labor- 
 wlfh him. was to prevent him from squander- Ing under great bodily suffering fn)m a .severe 
 ing ills pro|»erty. and particularly to prevent sore leg;" that, "at the time he witnessed 
 
 further bargains of slaves to P. Cauble, who 
 appears lo have had Influence with him. 
 
 the will, be al.so signed a paper, (as wit- 
 ness,) which was rei)resented to be a deed 
 
 There was no want of care or precaution i for the land on wlihb Mr. Parris lived." He 
 in the preparation of the deed. Not only is says, that, ".Joseph Powell. C. Larke, and 
 the pecuniary consideration recited with another man, were present. Mr. Powell wrote 
 minute particularity, but that it was "money 1 and produced the papers;" — "the defendant 
 laid out and expended In and about the man- j was not present, but was in an adjoining 
 ngement of my buslne.s.s, the justice of which I room." He says, "his (Parrl.s'si heallli was 
 account has been acknowledge<l by me." (The bad, and he was confined to bed— he had to 
 an.swer .says it was money loaned to Henry ♦462 
 
 Parris, In 1841, for which he held bis note be propped up to sign *tlie two papers— his 
 for money lent.) The negroes constituted u sufferings were so great that they rendered 
 
 183
 
 *462 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 him physically unfit for business; — he was 
 very feeble at the time spoken of."' In his 
 reply to the defendant's fourth interrogatory 
 in chief, he says, "he saw Mr. Parris sign the 
 paper referred to, but did not see him de- 
 liver the same to Mr. Cobb;" and he repeats 
 that the paper, which he thus attested, was 
 "represented to be a deed for the land on 
 which Mr. Parris lived." 
 
 Charles Larke was also examined for the 
 defendant, A. B. Cobb. He said, among other 
 things, that "he was present when Henry 
 Parris signed his will, and he subscribed his 
 name as witness to it;" also "saw him sign 
 another paper at that time, but did not know 
 what it was ; that he was at Parris's house 
 about two hours;" that "there was only a min- 
 ute or two between the signing of the two pa- 
 pers." On his cross-examination, he says, 
 "A. B. Cobb came to witness's house that 
 morning, and said his grandfather wanted 
 him to go over and witness his will." "When 
 the will was signed, Mi-. Parris was sitting on 
 the bed, and complained that his leg hurt 
 him ; the will was read before Parris signed 
 it, but the other paper was not read; Powell 
 handed the paper to Parris, and he signed it. 
 He (witness) did not hear it read, but he saw 
 Parris have it in his hand looking at it, and 
 long enough to have read it; there was no- 
 body present, except Mr. Powell, Dr. Turpin, 
 and witness. A. B. Cobb was not there." 
 This witness said, he was himself a German ; 
 that he came to this country from Germany, 
 in 1834 ; that he cannot read writing in Eng- 
 lish — and his acquaintance with the language 
 seems imperfect; — he understands, (he says,) 
 "low English, but did not understand high 
 English." Both these witnesses are adduced 
 in behalf of the defendant ; — their evidence 
 is very instructive; — neither of them was 
 called in, with reference to this transaction. 
 Dr. Turpin was called in, that morning, pro- 
 fessionally, and was suiiDrised, he says, to 
 find that for that purpose he was not wanted. 
 Larke was told that Henry Parris wished him 
 to come and witness his will; the old man is 
 very feeble; obliged to be propped up in his 
 
 *463 
 bed; physi*cally unfit for business; the will 
 is read, and executed and attested. At the 
 same time. Dr. Turpin thinks, after the will, 
 "this paper is handed by Mr. Powell to Henry 
 Parris ;" the paper is not read, but Parris 
 signed it. If the will was read to the testa- 
 tor, why should it be deemed unnecessary to 
 read this instrument? Larke says it was not 
 read. Dr. Turpin proves not only that it was 
 not read, but he proves much more. He is 
 the defendant's witness; — he is the attesting 
 witness. He says that the defendant request- 
 ed him to sign as a witness, and then retired 
 into an adjoining room. Mr. Powell had pre- 
 pared, and he produced the papers ; — one, the 
 witness understood to be a will; — this paper 
 was represented to be a deed for the land on 
 which Mr. Parris lived. Thus represented, it 
 
 184 
 
 was handed to Mr. Parris, and executed by 
 him, and attested by the witness, but he .saw 
 no delivery of the deed to the defendant. Dr. 
 Turpin is evidently an intelligent witness, 
 and his statement on this subject is posi- 
 tive, distinct, and twice repeated, in reply 
 to the defendant's inquiry. By whom was 
 this representation made? Not by Larke 
 certainly; perhaps not by the defendant, 
 Cobb. The only persons, then, by whom 
 the representation could have been made in 
 the presence of Dr. Turpin, were either 
 Joseph Powell, or Henry Parris himself, or 
 both. The Court has in vain sought for any 
 explanation, any evidence which would re- 
 pel the inference, or rather impair the force 
 of the positive statement, that this instru- 
 ment, containing the acknowledgment of an in- 
 debtedness of $489.98, and a gift of six 
 slaves, with cattle, horses, hogs, t&c, was mis- 
 represented by the draughtsman, who handed 
 it for signature to the party, to be "a deed 
 for the land on which he lived;"— that it was 
 so represented in the presence of the attest- 
 ing witness. It is possible that Dr. Turpin 
 is mistaken in his evidence, or that the de- 
 fendant himself had no part in this misrep- 
 resentation, and is incapable of it. But 
 any such arbitrary speculation on the part 
 of the Court derives no confirmation from 
 other sources, and is painfully chilled by the 
 testimony of William Choice, a witness ad- 
 duced by defendant, and who was cross-exam- 
 
 *464 
 ined by the complainants. Among *other 
 matters, he testified that Henry Parris was 
 weak minded, failing, and easily infiuenced, 
 in the latter years of his life, by his friends. 
 He never considered Mr. Parris competent to 
 attend to complicated transactions. At the 
 time mentioned, he considered him to be easi- 
 ly imposed upon by those who had his confi- 
 dence. "He regarded the defendant as the 
 general agent for Parris, — he claimed to be 
 so." Witness "understood, both from A. B. 
 Cobb and Henry Parris, that Cobb was the 
 general agent of Parris." Witness instituted 
 a suit in the name of Parris, against Roily 
 Jenkins, the whole of which was commenced 
 and conducted by A. B. Cobb, without any 
 communication between witness and Parris. 
 But the transaction, to which this witness 
 particularly testifies, took place "before he 
 heard of Parris's will, which was drawn by 
 Mr. Powell, who became the counsel of Mr. 
 Cobb ;" he cannot fix the precise date of the 
 occurrence, but what then took place, "has 
 been impressed on his mind by frequent ex- 
 aminations since their occurrence." On the 
 occasion to which he refers, he says, "Mr. 
 Cobb called on me, and asked me to draw an 
 instrument of writing, conveying to himself 
 a considerable portion of Henry Parris's 
 property, to be signed by Henry Parris ; and, 
 on being told by me that, if Mr. Parris would 
 call and tell me what kind of an instrument 
 he wanted, and if I believed he understood
 
 PARRIS V. COBB 
 
 *467 
 
 its nature and charaote'*. I would draw it for 
 hiui, Mr. Cobli said, tliat if I woulfl tt-il Henry 
 Parri.s it was riglit for him to do it, he, 
 Henry Tarris, would do it — if I would pro- 
 cure sufh an instrument, he, A. R Cobb, 
 ■would give me one hundred dollars. After- 
 wards. .Mr. Henry Tarris called at my offloe, 
 and said. A. B. Cobb had told him to call 
 there and sign a powi-r of attorney, authoriz- 
 ing A. B. Cobb to attend to the affairs of 
 said I'arris. I told I'arris it was unnecessary 
 to give such an instrument, as Cobb was al- 
 ready acting as his general agent." When 
 asked by the defendant as to his inference, 
 he says, that "he has stated the facts, from 
 which conclusions may be drawn." After 
 this unsuccessful experiment with the wit- 
 ness, he says, "that Mr. I'owell became the 
 
 ♦465 
 counsel of Mr. Cobb, and he heard of 'the 
 will that he had drawn;" although there is 
 good reason to believe that neitiier he, nor 
 any one else, except the defendant and his 
 counsel, was aware, until after the decease 
 of Henry Parris, in 1847, that a deed of this 
 character, and containing the.se provisions, 
 Lad been executed. Excei)t the evidence of 
 Mr. I'owell, there is no proof of delivery. 
 It was never recorded, nor was it ever prov- 
 ed for record. If no fiduciary relation had 
 existed between the defendant and Henry 
 Parris, the Court would come to the conclu- 
 sion, upon the clear preitonderance of the tes- 
 timony, that this transaction cannot .stand; 
 that, whether the defendant relies upon the 
 parol gift of the slaves, or the liargain and 
 sale of the slaves and stock, his claim must 
 equally fail. It may be, that Henry Parris 
 was grateful to the defendant, and intended, 
 and was willing to have rewarded liim for 
 his services. As Lord Kldon says, in lluguen- 
 iu v. liaseley, this is not enough. "Was all 
 the care and providence placed round this 
 aged and infirm i)erson, as against those who 
 advised him, which, from tlieir situation and 
 relation with respect to him, they were bound 
 to exert in his behalf V So far from it, it is 
 imi»ossible to read, and to credit the testi- 
 mony of Mr. Choice, without being forced 
 to the conclusion of the unworthy designs of 
 the defendant ; or the evidence of Dr. Turpin. 
 without a deep conviction that tho.se designs 
 Imd been consummated. 
 
 Leaving this branch of the case, it is i)ro- 
 posed now to advert to the purchase of the 
 Charles CJarrison tract of land. It was sold 
 by the Sheriff in July, IMli. Henry Parris 
 lived at this time between three and four 
 miles from (Jreenville Court House, at his 
 homestead. He was ninety years ohl. feeble, 
 and so incapable of attending to his own 
 farm, that he was obliged yearly to purcha.se 
 supplies — and he was annoyed by petty 
 debts, which he had not the means to satis- 
 fy, without a sale of property. The Carrl- 
 son place was some fourteen miles from the 
 Court House. Yet the Court is told, in the 
 
 <lefendant's answer, that, at the Siierift"'? 
 .sale in 1n41'. this land was l»id off by Henry 
 Colli), (the father of the defendant,) for Hen- 
 ry Parris, for the sum of eleven hundred and 
 
 *466 
 ten dollars; that Parris •a'J.rnied the con- 
 tract, and afterwards sold the land to the de- 
 fendant. The whole transaction is compli- 
 cated. Hut if Parris understinxl anything 
 alxiut it, it affords the most striking evi- 
 dence of his general incapacity, or of the ab- 
 solute control exer(i.sed by the defendant. 
 He was on the brink of the grave, with more 
 hiii'l than be could possibly improve, and so 
 embarrassed In his i)ecuniary affairs, that 
 he had .sometimes a constable at the door, 
 with a magistrate's sununons. Yet. at this 
 periofl of life, under these circumstances, 
 he embarks in a new purchase of four hun- 
 dred and twenty acres of land, situate ten 
 miles off, which was .sold, as the defend- 
 ant .says, at a fair iirice, and for which 
 he, Henry Parris, was to pay eleven hun- 
 dr»'d and ten dollars, cash. "The nu)ney 
 was rai.sed," (says the defendant.) "by bor- 
 rowing six hundred dollars from Jeremi- 
 ah Cleveland, and five hundred dollars from 
 Jo.seph Powell, and the ten dollars was 
 paid by this defendant." Mr. Choice 
 says, "he distinctly remembers, that in 
 July, 1.S41.', the Cobbs wanti^ to borri»w 
 money for the payment of the Charles (Jarri- 
 son land, bought at Sheriff's sale. As far as 
 his memory .si-rves him, the Cobbs borrowe*! 
 the money, and Mr. Parris was security." 
 Witness, "its attorney of Capt. Cleveland, 
 took the confession of judgment, and in that 
 way became ac<iuainted with the tran.sac- 
 tion." The Sheriff's deed to Parris was not 
 obtained until December, ISUiiJ. On the 19th 
 December, 1S4L', Parris conveye<l the premises 
 to the defendant for the same sum. and on 
 the next day proceedings were instituted 
 against (larri.son. Defendant went to live on 
 the (Jarrison place in the l>eginning of 1844, 
 and continued to reside there until December, 
 1847, when he sold the premises to William 
 Meares, for thirteen lunidred and fifty dol- 
 lars. The defendant insists on the validity 
 of the purchase for Henry Parris, at ."Sher- 
 iff's sale, and the Court is not disixised to 
 disturb it, nor do the complainants ask it 
 Put the Court is of oi)inion, that, in the con- 
 dition which the defendant occupied in De- 
 cember, 1S4L', and under the circinnstances 
 which have been develojted, the transfer of 
 the l'.>th DecenilK-r, IM'J. ought not to be 
 
 •467 
 sustaineil, and that the *defendant must ac- 
 count for the enhanced price at which he 
 .void the |)remises to Meares, as well as for 
 the rent, from the time h«' t<iok possession, in 
 1844. until the .sale to Meares, as against 
 whom the bill must be disnnssed. 
 
 It is ordered and decnn^d. that the defend- 
 ant, A. H. Cobb, deliver up to the complain- 
 ants the slaves, with their issue, specifically 
 
 185
 
 »467 
 
 5 RICHARDSON'S EQUITY RErORTS 
 
 bequeathed to them, respectively, by the tes- 
 tator, Henry Parris, and that he account for 
 their hire from the Fall of 1S48, until such 
 delivery. 
 
 It is further ordered and decreed, that the 
 instrument bearing date 28th April, 1843, 
 be delivered up to be cancelled ; that the 
 defendant account for the amount for which 
 he sold the slaves therein mentioned, with 
 interest from the time of their removal 
 from this State, in 1848, and that he account 
 for their hire from the beginning of 1844, 
 until such removal, in 1848 ; that he ac- 
 count also for the residue of the property 
 purporting to be transferred by said deed. 
 It is also ordered, that it be referred to the 
 Commissioner, to take an account of the mon- 
 eys received and disbursed by the defendant, 
 both during his agency in the life time of the 
 testator, and as executor since his death ; 
 and that he report thereon, preparatory to 
 a final adjustment among the parties interest- 
 ed In the residuary estate of Henry Parris, 
 deceased, as his next of kin. ' 
 
 It is finally ordered, that the costs of the 
 complainants, as well as those of the defend- 
 ant, William Meares. be paid by the defend- 
 ant, Amaziah B. Cobb. Parties to be at lib- 
 erty to apply for any other orders which 
 may be necessary in carrying the decree into 
 effect. 
 
 The defendant, A. B. Cobb, appealed, and 
 moved this Court to reverse or modify the 
 Circuit decree, on the grounds : 
 
 1. Because the will of Henry Parris is a 
 will of specific legacies, without a residuary 
 clause ; and therefore Cobb, as executor, 
 is only chargeable, in this form, with the 
 specific legacies committed to him by the 
 will. If there are other means belonging to 
 the estate of Parris, they can only be reach- 
 
 *468 
 ed by *taking administration on the estate ; 
 and that not having been done, Cobb is not 
 liable to account to the plaintiff in this 
 form. 
 
 2. Because A. B. Cobb was the special, 
 and not the general agent of Parris, esipecial- 
 ly after their separation in January, 1844 ; 
 and, as such, the statute of limitations ought 
 to protect him against the several matters 
 mentioned in the bill. 
 
 3. Because, even if he had been the gener- 
 al agent of Parris, which he never was, the 
 statute ought to protect him, as to convey- 
 ances of property made to him by Parris, 
 after the lapse of four years from such con- 
 veyances. 
 
 4. Because the deed of April 28, 1843, hav- 
 ing been executed at the same time that Par 
 ris executed his will, and the will having been 
 established before every tribunal in which 
 the appellants were entitled to be heard, in 
 the face of the same objections here urged 
 against the deed, the Circuit decree ought to 
 have established the deed. 
 
 5. Because, independent of the adjudication 
 186 
 
 in favor of the will, the evidence Ls suffi- 
 cient to establish the deed. 
 
 6. Because the Circuit decree ought to 
 have sustained both the purchase and sale 
 by Pai-ris of the Garrison place, as the two 
 conveyances were executed within seven days 
 of each other, or ought to have set both 
 aside ; and therefore the Chancellor erred in 
 declaring the purchase by Parris valid, and 
 the sale by him invalid, and in requiring A, 
 B. Cobb to account for the rents, and for the 
 excess for which he sold the place to Meares. 
 
 7. Because, if the deed to A. B. Cobb, of 
 28th April, 1843, cannot stand, he is entitled 
 to payment for his services, in the years 
 1841, 1842 and 1843, as overseer for Parris ; 
 and, therefore, the Chancellor erred in set- 
 ting aside the deed, without allowing Cobb 
 payment for said services. 
 
 8. Because the demand of $184.50, in the 
 hands of A. B. Cobb, as administrator of 
 Henry Cobb, was money paid by Henry Cobb, 
 on 12th October, 1847, for Parris, as clearly 
 shown by the evidence and is a valid, sub- 
 sisting demand, due to tlie estate of Henry 
 Cobb by the estate of Henry Parris; and 
 
 *469 
 there*fore the Chancellor erred in his de- 
 cree, in not making the said demand a charge 
 on the estate of Parris. 
 
 Vandiver, for appellant. 
 
 Perry, contra. > 
 
 The opinion of the Court was delivered by 
 
 DUNKIN, Ch. The defendant's first ground 
 of appeal has certainly no foundation. But 
 it is due to the zeal and earnestness with; 
 which it was insisted upon by both the coun- 
 sel of the appellant, that it should be more 
 fully explained. It is said this is a will of 
 specific legacies, without any residuary 
 clause, and that the defendant, the executor, 
 is either not accountable at all, beyond the 
 payment of debts and legacies, or that, if so 
 accountable, the surplus (in the language of 
 the appeal) "can only be reached by taking, 
 administration on the estate of Henry Par- 
 ris, deceased." 
 
 It is stated in the decree, that when the 
 testator made his will, he had three sons and 
 four daughters. One of his sous had since 
 died. All the daughters, the two .surviving 
 sons, and the representatives of the deceased 
 son, were parties, either as complainants or 
 defendants. It is not suggested that there 
 were any other distributees, nor is it a 
 ground of appeal, that all the distributees are- 
 not before the Court. Then, whence the ne- 
 eessity, or propriety, of an administration? 
 By law, the title of all the testator's person- 
 alty, whether disposed of by his will or not,, 
 is vested in the executor. It is true, that in 
 England, the surplus, after payment of debts 
 and legacies, was held, at law, to belong to 
 the executor; but even there, this general 
 rule of law was controlled in Equity, in all 
 cases where a necessary implication or strong;
 
 PARRIS V. COBB 
 
 *472 
 
 presumption appoared. that the testiitor 
 meant only to give the office of executor, and 
 not tlie iieneticial interest in the residue. In 
 Jill such cases, the executor has iieen con- 
 sidered a trustee for the next of kin of the 
 testator. And now, hy the statutes of 11 
 (Jeo. IV. and 1 Win. IV., Courts of I^iuity 
 are required always to consider ex«'cutors as 
 trustees for the pi'rsons who would he en- 
 
 *470 
 titled to distrihution, in respect of 'any resi- 
 <lue not disposed of hy the will. 2 Wins. 
 Exors. lOoO. Hut in South-Carolina execu- 
 tors have heen always so regardetl. As ex- 
 ecutors, they have no interest beyond the 
 connnissions allowed by law, and for any 
 surplus of their testator's estate they are ac- 
 countable as trustees, to the next of kin. In 
 nearly every volume of our Reports, ca.ses 
 may be found in which this liability of the 
 executor is familiarly recognized, such as 
 Ilinson v. I'ickett. 1 Hill E<i. .'iu : Hronghton 
 V. Telfer, 3 Rich. Eq. 4:U, &c. ; although it 
 juay be true that no dire<?T decision upon 
 the subject may be found, because no such 
 (lue.stion has been made. 
 
 Then it is contended that the defendant is 
 ju'otected by the statute of limitations, and 
 that, inarticularly after January, 1S44, he 
 was only the special agent of the testator. 
 Rut the testimony is very full, both from his 
 own acts and declarations, as well as the 
 declarations of the testator, that the defend- 
 ant was his general agent. One of the de- 
 nuntls on which he insists, is for a note 
 which he signed, in the name of the testator, 
 and as his agent, siibsetiueut to .January, 
 1844, and whicii he alleges was paid by the 
 surety, Henry Cobb. It is well settled, that 
 in such cases, the statute does not couuuence 
 to run until the termination of the agency. 
 Hopkins v. Hopkins, 4 Strob. Eq. 201 [Ho 
 Am. Dec. 6U3]. And, even if the general 
 agency ceased, as contended, in Janiiary, 
 1S44, the bar had not attached in Heiitem- 
 lier, 1S47, when the defendant became ex- 
 ecutor. 
 
 The defendant having refu.sed to deliver 
 the two slaves specifically bequeathed to th^' 
 complainants, (the son and granddaughter ul 
 testator,) on account of the insuthciency of 
 the estate to pay the debts, this bill was filed, 
 alleging, among other things, that the de- 
 fendant, soon after testator's decease, had 
 carried off to the West and sold certain of 
 testator's slaves, and the bill prayed not only 
 a specific delivery of the slaves betiueathed, 
 and an account of their hire, but that the 
 defendant nnght account for his actings and 
 doings as executor, and also for what he had 
 received and disposed of during the testa- 
 tor's imbecility. The answer admits the re- 
 
 •471 
 nioval and siile of the *negroes, in 1848, for 
 $0,050; but insists that they had b(>come 
 the property of the defendant by the deed 
 of April, 1M;?. The infirmity of that deed 
 has been adjudged, for the reasons slated iu | 
 
 the de«ree, and which need not he repeated. 
 And as no adverse possession of the prop- 
 erty included therein is suggested to have 
 existed, until the defendant's removal in 
 January, 1S44. the Iwir «)f the statute (if ap- 
 I)licable under such cinumstancvs) was not 
 completed at the testatm-'s death. 
 
 It is argued that the conclusions of the 
 Chancellor ui)on the facts are at variance 
 with the verdict of the jury, in relation to 
 tlu' will. This Is an entire misapprehension. 
 The Chancellor was of opinion, and so stated, 
 that the testimony did not establish inca- 
 pacity to make a will, but only such condi- 
 tion, both of mind and bixly, as would ren- 
 der the testator peculiarly subject to be in- 
 fluenced, and, it nnght be, misled, by those 
 in his confidence, and that the defendant stood 
 in that relation, and, in the matter of the 
 deed, had abused the confidence. liut, under 
 the will, the defendant took no part of tlie 
 testator's estate, and, besides, it was iiroved 
 that the will was read aloud, in the presence 
 of the attesting witnesses. I'mler the deed, 
 the defendant took a large part of the tes- 
 tator's estate. It was executed at the same 
 time with the will, but it was not read to 
 the testator, and, according to the testimony 
 of the only attesting witness, it was rep- 
 resented to be a detnl of the land on which 
 he lived. Eurther, on the trial of the will, 
 Mr. Choice gave the same evidence as on 
 this occasion. In the report of the presid- 
 ing Judge to the Court of Appeals, adverting 
 to this evidence, he s:iys he "charged the 
 jury that even the offer of a fee. or a bribe, 
 to a lawyer, to induce him to i>ersuade the 
 testator to make a will iu favor of the ex- 
 ecutor — and there was no further proof that 
 su<h base intention was carried out — was 
 not, of itself, conclusive evidence of either 
 fraud or undue infiuence." Hut what would 
 have been the ruling of that pure and en- 
 lightened magistrate, if such unworthy in- 
 tention had been too successfully carried in- 
 to effect"/ or if a party, who was proveti to 
 have unsuccessfully tampered with the integ- 
 
 *472 
 rity of *one of those who should be minis- 
 ters at the altar of justice, had afterwards 
 sought to defend his pretensions under an in- 
 strument of preci.sely the same character as 
 that whii'h he had attenq>ted to procure? 
 As already intimated, it does not appear that, 
 at the trial of the will, the parties knew 
 anything about the existence of this deed. 
 It had not been read in the hearing of the 
 bystanders. It was never put on record; 
 and, for all that appeared on that trial, the 
 defendant had very little p«'rsonal interest in 
 the transactions that took place at the bed- 
 side of Henry Harris, on the UNth April, 
 1S4.'{. Subsequent developments have given 
 more marked significancy to his conduct. It 
 may be that witnesses are nnstaken — or 
 worse. It may be that appearances are de- 
 lusive. Hut Courts of Justice are bound to 
 form conclusions from the evidence before 
 
 187
 
 *472 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 them. They must deal with the materials 
 presented to them, and are not permitted to 
 indulge in speculations. According to the 
 evidence submitted, and the approved prin- 
 ciples of this Court, as applicable to the re- 
 lations of these parties, Che judgment of the 
 Circuit Court should be sustained. It is so 
 ordered and decreed, and the appeal dis- 
 missed. 
 
 JOHNSTON, DARGAN and WARDLAW. 
 CC, concurred. 
 Decree affirmed. 
 
 5 Rich. Eq. *473 
 
 *Ex parte WILLIAM WARE. 
 
 (Columbia. May Term, 1853.) 
 
 [Executors and Admimstrators <S=2G3.] 
 
 A surety to a single bill, who pays it off aft- 
 er the death of the principal, is entitled to 
 rank as a specialty creditor of the estate of the 
 principal. 
 
 [Ed. Note.— Cited in Edwards v. Sanders, 6 
 S. C. 333; Robinson v. Robinsun, 20 S. C. 573. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. § 994; Dec. Dig. <©=»2()3.] 
 
 Before Dunkin, Ch., at Abbeville, June, 
 1852. 
 
 This was an appeal from the judgment of 
 the Ordinary. 
 
 N. M. Ware, deceased, the intestate, and 
 William Ware, were, at the death of the for- 
 mer indebted to the representatives of Thos. 
 Kirkpatrick, by two joint and several sealed 
 notes. N. M. Ware was the principal, and 
 William Ware his surety. The notes were 
 paid by William Ware after the death 
 of his principal. He presented them before 
 the Ordinary, and claimed to be entitled to 
 rank as a specialty creditor of the estate of 
 the intestate. The Ordinary thought, he was 
 only entitled as for so much money paid ; 
 and rejected his claim as a specialty credi- 
 tor. He appealed. 
 
 Dunkin, Ch. The statement of facts ap- 
 pears from the brief of the solicitors, togeth- 
 er with the judgment of the ordinary. 
 
 It will be remarked, that the sealed note is 
 joint and several. At the decease of the intes- 
 tate, N. M. AVare, the representatives of Thos. 
 Kirkpatrick, the payees, were specialty credi- 
 tors of the estate of N. M. Ware, deceased. 
 In Morton & Courteny v. Caldwell, 3 Strob. 
 Eq. 161, it was ruled by the Court, that "the 
 proper mode of determining the proportion of 
 assets liable to the respective creditors of a 
 deceased debtor, is to assign them according 
 to the amount of the debts as they existed 
 at his death." It is there said, that "if upon 
 any of the demands thus taken into consid- 
 eration, any payments have subsequently 
 been made by a third party, that does not re- 
 lease the proportion of the deceased's assets 
 originally liable to the creditor, if there still 
 remains due on the demand a balance re- 
 
 *474 
 quiring that proportion to satisfy *it." The 
 Chancellor also clearly intimates tlie oplidon, 
 that if tlie party who made the payment was 
 only surety for the debt, he would become 
 entitled, (if he had paid the whole debt.) by 
 way of reimbursement, to the proportion to 
 which the original creditor was entitled. 
 And in King v. Aughtry, Id. 149, the riglit 
 of the surety who pays off the debt of the 
 principal was considered, and the doctrine 
 of our own Courts, in affording protection 
 to sureties, recognized and enforced. See al- 
 so, Thomson v. Palmer, 3 Rich. Eq. 139. (a) 
 My opinion is, that the appellant was enti- 
 tled to rank as a specialty creditor of the 
 estate of N. M. Ware, deceased ; and, in con- 
 formity with the thirteenth section of the 
 Act of 1S.39, regulating appeals from the 
 court of ordinary, it is ordered and decreed, 
 that it be referred to the Commissioner of 
 this Court to re-state the account according 
 to the principles herein declared. 
 
 The administrator of N. M. Ware, ai)i»eal- 
 ed, on the grounds: 
 
 1. Because, it is respectfully submitted, his 
 Honor erred in deciding that a surety who 
 paid a single bill to the obligee, after the 
 death of the intestate, the principal, was re- 
 mitted to the rights of the obligee, and rank- 
 ed as a specialty creditor. 
 
 2, Because the Ordinary, in deciiling ques- 
 tions in his Court, must be governed by the 
 law and practice established therein, which 
 do not recognize the right of subrogation ; 
 and that, to require the Court of Ordinary 
 to conform in all respects to the Court of 
 Equity, would subvert the independence of 
 the former Court, and render it, in sub- 
 stance, a subordinate branch of the Court of 
 Equity. 
 
 Tliomson & Fair, for appellant. 
 Perrin & McGowan, contra. 
 
 PER CURIAM. This Court is of opinion, 
 *475 
 that there is no error *in the decree of the 
 Chancellor ; and it is ordered, that it be af- 
 firmed, and the appeal dismissed. 
 
 JOHNSTON, DUNKIN, DARGAN and 
 WARDLAW, CC, concurring. 
 Decree affirmed. 
 
 (a) See also Perkins v. Kershaw, 1 Hill, Eq. 
 351 ; Pride v. Boyce, Rice Eq. 275 L33 Am. 
 Dec. 78]. 
 
 5 Rich. Eq. 475 
 
 DUNCAN McRAE and Others v. JOSHUA 
 
 DAVID, Ordinary. 
 
 (Columbia. May Term, 1853.) 
 
 [Executors and Administrators <©::^2t).] 
 
 The statute 22 and 23, Car. II. c. 10, mak- 
 ing it the duty of the Ordinary, in granting ad- 
 ministration, to take suttieient bond, "with two 
 or more able sureties,— respect being had to the 
 
 18S 
 
 ®;:^For other ca-ses see same topic and KEY-NUMBEH in all Key-Numbered Digests and Indexes
 
 McRAE V. DAVID 
 
 *477 
 
 value of the estate," is not repealed by the Act 
 of 1789, requirini? that "every admiuistrator 
 shall enter into bond, with Rood security, to be 
 approved by the Court, in a sum equal to the 
 full value of the estate. ' The two Acts are to 
 be construed together. 
 
 I Ed. Note. — For other cases, see Executors 
 and Administrators, Cent. Dig. SS 144-170; 
 Dec. Dig. ®=3l!6.1 
 
 [Executors and Adniiiiistratois <S=>2(!.1 
 
 In determining the suttieicncy of tlu' bond. 
 the r(Si)onsibility of the administratur himself 
 is not to be considered. The ability of the sure- 
 ties is alone to be looked to. 
 
 [Ed. Note. — For other cases, see E.xecutors 
 and Administrators, Cent. Dig. SS 144-1 7U; 
 Dec. Dig. ©=32<J.l 
 
 [Executors and Administrators <©=3li6.1 
 
 It is the duty of tlie Ordinary to take bond, 
 with at least two sureties; and each surety 
 must be able, in a i)e(iiiiiary or proiinty point 
 of view respect being had to tiie value of the 
 estate to be administered. 
 
 [Ed. Note. — For other cases, see Executors 
 and Administrators, Cent. Dig. §§ 144-170; 
 Dec. Dig. <g=-J(J.] 
 
 [Executors and Administrators (S=>20.1 
 
 The Ordinary, in determining u])on the abil- 
 ity of the sureties, acts ministerially, and not" 
 judicially. 
 
 [Kd. Note. — Cited in Williams v. Weeks, 70 
 S. C. 5, 48 S. E. G19. 
 
 For other cases, see Executors and Adminis- 
 trators, Cent. Dig. J!§ 144-170; Dec. Dig. <©=> 
 20.] 
 
 [Jud(/cs <g=>36.] 
 
 If the loss, which has been sustained from 
 the insutiiciency of the bond, has not resulted 
 from negligence on the part of the Ordinary, 
 but has arisen from causes, which, acting faith- 
 fully, he could not foresee or control, he is not 
 liable. 
 
 [Ed. Note. — For other cases, see Judges, Cent. 
 Dig. § IGG; Dec. Dig. <s=>3U.] 
 
 [Executors and Administrators <S=>26.] 
 
 The evidence as to the ability of the sure- 
 ties to an administration bond considered, and 
 the Ordinary held liable to distributees for tak- 
 ing an insufficient bond. 
 
 I Ed. Note. — For other cases, see Executors 
 and Administrators, Cent. Dig. §§ 144-170; 
 Dec. Dig. <S=320.] 
 
 Before Dargan, Cli., at Marlliorough. 
 March. 1853. 
 
 Dargan. Ch. Daniel McRac. late of Marl- 
 borough district, departed this life on the 
 5th August. 1842. intestate, and left a person- 
 al estate I'stiuiated at the time as worth be- 
 tween fciur and live thousantl dollars. The 
 defendant, Joshua David, who was then (as 
 he is now) ordinary of the district, granted 
 
 *476 
 letters of *adniinistration to Colin McKae. 
 The latter executed an administration bond 
 to the ordinary, bearing date the 2!lth Au- 
 gu.st. 1S42; to which Kphraini L. Ilenagan 
 and John L. .McKac were the sureties. Colin 
 McUae. the administrator, made only one re- 
 turn. He reduced the assets to possession; 
 and in the year is45. died intestate and in- 
 solvent, without liaving accounted for any 
 portion of the estate of Daniel .McKae. which 
 had conu' into his hands. After his death, 
 
 the defendant, as ordinary, administered de 
 bonis non on the estate of Daniel McRae, as 
 a derelict estate. 
 
 The sureties. E. L. Ilenagan and John I.. 
 McKae. have both died intestate, and totally 
 insolvent ; and nothing, by any possil»ility, 
 could have been derived from their estates to 
 satisfy the claims of the distributees of Dan- 
 iel McUae. 
 
 This bill has been tiled by parties claiming 
 to be the distrilmtees of Daniel McKae. 
 against the defendant, as ordinary, for the 
 purpose of making him liable for the mal- 
 administration of Colin M<Kae. They charge 
 that he is so liable on account of his othcial 
 default and nii.seonduct in taking inadequate 
 and insolvent security on the administration 
 bond of Colin McKae. Failing in this, they 
 claim au account of such i)ortions of the 
 derelict estate of Daniel McKae. as have 
 come into his hands, after the death of Colin 
 McKae. 
 
 As to the question of the defendant's lia- 
 bility for the othcial default charged in the 
 bill, much evidence has been offered ; and if 
 the charges of the bill had been sustained, 
 the defendant would of course have l>een lia- 
 ble. 
 
 The Act of 1070. 2 Brev. Dig. 80. directs 
 the ordinary, in granting letters of adminis- 
 tration, to take the bond of the administra- 
 tor, with "two or more able sureties." The 
 Act of 1789 directs him. under the same cir- 
 cumstances, to take good security, to be ap- 
 proved by the Court. The two Acts, in this 
 respect, have precisely the same meaning: 
 where sureties are reiiuired by law to be giv- 
 en for any purpose, it means got)d and suffi- 
 cient security, adeciuate to the end i»roposed. 
 
 The ordinary, like every other public offi- 
 *477 
 cer, is bound to dis*charge tlie duties im- 
 posed upon him by his otHce in an honest, 
 faithful and prudent manner. If he has not 
 so discharged his duties, and loss and dam- 
 age result, he should be. and is resi»onsible, 
 to the parties aggrieved. The iluties of an 
 ordinary are judicial and ministerial. In 
 the discharge of his judicial duties, nothing 
 short of wilful defaul*^. amounting to cor- 
 ruption, would make him liabh\ In the per- 
 formance of his ministerial functions, he is 
 not (for the best of rea.sons) so heilged in 
 and protected by the law. In regard to his 
 merely ministerial duties, he may be an- 
 swerable lor damages resulting from ins neg- 
 lect, though it may not amount to corruption, 
 or a wilful default. The taking of an ad- 
 ministration bond by an ordinary, as by law 
 re<iuired. is a ministerial, and not a judicial 
 act. The omission to take good and suffi- 
 cient sureties to an administration l)ond. by 
 which loss accrues to the parties interested, 
 is an official default, for which an ordinary 
 would be liable, if it be tiie result of care- 
 lessness or neglect, .still, in reference to the 
 
 <Q=;5For other cases see same topic and KEY-NUMBEK in aJl Key-Numbered Digests aud Indexes 
 
 189
 
 *477 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 discharge of his merely ministerial duties, 
 infallibility of judgment is not required. 
 Neither is he to be regarded as a guarantor 
 of the solvency of the sureties which he 
 takes. If he discharges a duty like this, 
 with the circumspection and diligence which 
 prudent men would observe, under similar 
 circumstances, in the management of their 
 private affairs, that is sufficient to exempt 
 him from liability for any subsequent loss. 
 
 Every public officer is presumed to have 
 discharged his duties in a proper manner. 
 The onus is upon the party alleging the con- 
 trary of this presumption, to prove his alle- 
 gations. The defendant has the advantage 
 of this presumption in the commencement 
 of this investigation. And it would not have 
 been sufficient for the plaintiffs to have made 
 a doubtful case against him. The proof 
 must be strong enough to produce a convic- 
 tion, iniaccompanied with doubt, that the de- 
 fendant has committed an official default. 
 
 When I come to apply the foregoing prin- 
 ciples to the evidence which has been taken 
 in this case, I cannot perceive that the de- 
 fendant has committed an official default of 
 
 *478 
 such a character *as to make him liable to 
 the plaintiffs. The result of the administra- 
 tion has been most disastrous. And E. L. 
 Ilenagan, I am satisfied, was insolvent at 
 the date of the bond. John L. McRae. the 
 other surety, was not worth more than .$2,- 
 500 at that time. But there is strong proof, 
 from intelligent and disinterested sources, 
 that the bond was deemed a good one at the 
 time; and there are many witnesses, who 
 have been, and are, in public stations, (sher- 
 iffs, clerks, ordinaries, and merchants,) who 
 were well acquainted with the obligors on the 
 administration bond, and whose duty and in- 
 terest it was to learn and know the pecuniary 
 circumstances of their neighbors, who have 
 testified strongly, that the bond would have 
 been deemed by them adequately secured at 
 the time it was taken, and that, if they had 
 been the ordinary, they would have taken the 
 bond under the like circumstances. I refer to 
 the evidence on this point. It is ample and 
 conclusive. Unless infallibility of judgment 
 Is to be required of the defendant, he can- 
 not be made responsible for the insolvency of 
 the obligors of the bond in question. 
 
 It is ordered and decreed, that so much of 
 the complainants' bill as seeks an account 
 against the defendant, for the devastavits of 
 the administrator, Colin McRae, be dismissed. 
 
 The defendant, as I have before stated, on 
 the death of the administrator of Daniel Mc- 
 Rae, as ordinary, took charge of what re- 
 mained of said estate, as derelict. It is in 
 evidence, that the case of Joshua David, Or- 
 dinary, V. Duncan McRae, which has been col- 
 lected by sheriff McGilvary, and which he 
 is now ready to pay over to the defendant, is 
 a portion of the assets of Daniel McRae. 
 Whether the defendant has been able to save 
 190 
 
 anything from the wreck, does not appear, 
 lie must accoun~t for so much as he has re- 
 ceived, and it is so ordered and decreed. 
 This is subject, however, to the condition that 
 follows : 
 
 The defendant, not knowing the plaintiffs 
 in the bill to be the distributees of Daniel 
 McRae, insisted in his answer, that they 
 should be required to make proof on that 
 
 *479 
 point. This was *not done on the trial. But 
 the solicitors of the parties, on l)oth sides, 
 insisted that the case should be tried, with 
 a reservation as to the right of the plaintiffs 
 to be considered as the distributees of Daniel 
 McRae. I consented reluctantly, and I think 
 improperly, to the arrangement. The trial, 
 however, was gone into upon this condition. 
 
 It is ordered and decreed, that the plain- 
 tiffs have leave to prove themselves to be the 
 distributees of Daniel McRae ; and after 
 that, the Commissioner will proceed to take 
 the account above ordered against the de- 
 fendant, as the assets of the estate of Daniel 
 McRae. which have come into his hands. 
 
 The plaintiff'.s appealed upon the grounds: 
 
 1. Because his Honor has adjudged, that 
 the ordinary is not responsible for the con- 
 sequences of having taken insufficient sureties 
 on an administration bond, unless it is prov- 
 en by the parties claiming such responsibility, 
 that he did not exercise such care and dili- 
 gence, as prudent men use in the manage- 
 ment of their private affairs: Whereas, it is 
 respectfully submitted, the true question, in 
 every case of the kind is, whether there was 
 in fact, under the particular circumstances, 
 negligence on the part of the ordinary, to 
 which the resulting injury is fairly attributa- 
 ble, and when the sureties are proven to 
 have been in fact insufficient, and injury is 
 shown to have resulted, the burden is upon 
 the ordinary of showing that his having tak- 
 en such suretj' was owing to no negligence 
 on his part. 
 
 2. Because, in the case before the Court, 
 the evidence was abundant to exclude the de- 
 fendant from the terms of even that rule of 
 diligence, which his Honor affirmed in his 
 decree; and whether the test of responsibility 
 be that contended for in the first ground of 
 appeal, or that stated by his Honor, the de- 
 fendant is, upon the evidence, liable to the 
 distributees of the estate of Daniel McRae, 
 for the loss resulting from his having taken 
 insufficient sureties on the administration 
 bond of Colin McRae. 
 
 3. Because, it is most respectfully submit- 
 
 *480 
 ted, in determining *the question, what a 
 prudent officer would have done under the 
 circumstances of the defendant, his Honor 
 has attached, altogether, an undue impor- 
 tance to the wild opinions, which witnesses 
 profess to have entertained, some ten or elev- 
 en years ago, of the solvency and responsibili- 
 ty of E. L. Heiiagau and John L. McRae;
 
 McRAE V. DAVID 
 
 »4S2 
 
 whereas, these opinions nro worthU'ss. un- 
 less founded ui)on, and supportfd by. reasons 
 which wouhl liave been entirely satisfactory 
 to prudent men. making' dili},'ent inquiry into 
 the solvency of these parties. 
 
 4. Because, it is respectfully sujrgested, his 
 Honor appears to consider, in bis decree, the 
 leyal oblitjation of the ordinary "to take 
 bond, with two or more able sureties," sutK- 
 ciently fnltilled by his simply taking a good 
 Iwnd, with two sureties, and this, it is sub- 
 mitted, is error. 
 
 [For sHbse<iuent opinion, see 7 liich. Eq. 
 ;57o.j 
 
 Thornwell. Ini,'iis. for the motion, cited, 2 
 Stat. ~>-2:',: -> lb. 110; 2 (Jreen. I']v. § 58G; 
 Sparhawk v. P.artlett. 2 Mass. 19S; Oxley v. 
 Coperthwaite, 1 Dal. :14U : Clark v. .Moore, 1 
 Tread. 151; Treasurers v. l>eSaus.sure, 2 
 Spcer, 180; Jenner v. Jolifte, 9 Johns. K. 
 .'iSl ; Sinjmons v. Watson, 2 Speer, 97; Smith 
 on Stat. 599; Hext v. Porcher, 1 Strob. Eq. 
 170; Boggs V. Adger, 4 Rich. E(i. 408; 1 
 MeC. Ch. 404; 2 Hill, Ch. 364 ; McM. Eq. 153, 
 155; 1 Smith Lead. Cas. 283, Amer. note; 2 
 Mill, 382; Bail. Eq. 4S2; 4 McC. 547. 
 
 Dudley, contra, cited Sewill on Sheriffs, 
 162, 169, 457; 3 Rich. 59; Teasdale v. Ken- 
 nedy, 1 Bay, 322; Stat. 11 Geo. 2 c. 19. § 23; 
 Act 1839, 11 Stat. 15, 29, 30. 
 
 Tlie opinion of the Court was delivered by 
 
 JOIINSTOX, Ch. We agree with the 
 Chancellor in relation to the application of 
 the statute 22 and 23 Charles 2, ch. 10, 2 
 Stat. 523, to this ca.se. 
 
 This statute, which was made of force by 
 our statute of 1712. makes it the duty of the 
 ordinary, in granting administration of intes- 
 tates" estates, to take sulticient bond, "with 
 
 *481 
 two or more able *sureties. — respect being 
 Jiad of the value of the estate." It constitut- 
 ed the law on the subject at the passage of 
 our statute of 1789. (5 Stat. 110.) This lat- 
 ter statute requires that "every administra- 
 tor shall enier into bond, with good .■security, 
 to be approved by the Court, in a sum equal 
 to the full value of the estate." 
 
 These two statutes are to be construed to- 
 gether. There are no express terms in the 
 latter repealing the former; therefore, if re- 
 jiealed, it unist be by implication. Tlie doc- 
 trine of repeal by implication is not favored 
 in law. (a) Where repeal arises by implica- 
 tion, the implication must be necessary, and 
 arise from inconq)atihility or incongruity, 
 more or less, between the provisions of the 
 new law and the old. But tluM-e is no repug- 
 nance between them in this instance. 
 
 The true interpretation of the statute of 
 1789. in connection with the statute of 
 Charles, is, that when the former requires 
 bond, "with good security," it means that se- 
 
 (a) State v. Woodsidc, 9 Ired. 490; Bruce v. 
 Schuyler, 4 (Jilmau, 4. 
 
 curity which the latter required and made 
 good, — to wit. the security of two "able sure- 
 ties. — re.spect being had to the value of the 
 estate.". 
 
 If this interpretation of our statute law 
 were douittful, we should feel inclined to 
 adopt it, from its conformity to the itractical 
 construction which, we lielieve. has uniform- 
 ly i)een jiut upon the Act of 17N9. from the 
 time of its enactment. We believe, in every 
 ordinary's oflice in the State, the rule is. to 
 re<piire at least two sureties to administra- 
 tion bonds. 
 
 In our view, the respon.sibility of the ad- 
 ministrator himself does not enter into the 
 consideration of the sufliciemy of tiu- boml. 
 The creditors and distributees of the estate 
 never needed his bond to make him respon- 
 sible. He wns responsible without it. The 
 security, which the law intended to give 
 them, was additional to his. This will be 
 more clearly seen, when it is consideriHl that 
 the legislature had estab]ishe(l a rule, regu- 
 lating the right to claim adnunistration, ir- 
 respective of the responsibility of the person 
 upon whom this rigiit devolved. Tlie person 
 entitled to administer, must have letters 
 
 *482 
 granted to him upon *the sole condition, that 
 he give suitable sureties ; and this .shows 
 that the ability of the sureties w.-is alone 
 looked to by the legislature. 
 
 We have thus ascertained the duty of the 
 ordinary. He must take bond, with at least 
 two able .sureties. He was not to iiKiuire 
 whether the bond was good, referenee being 
 had to the solvency of the a<lministrator. 
 The inquiry was not, whether conu)ounding 
 the responsibility of all the parties to it, it 
 was sutticient. He nnist look to the sureties 
 alone. If they were "able" to respond for the 
 estate, the "security" was good ; otherwise, 
 it was not such as he was reipiired to take. 
 Nor was his duty performed, unless he took 
 two such sureties. If he had taken a bond, 
 with one surety only — however able that t>ne 
 miglit be to answer for the value of the es- 
 tate, — this would have been no conqdiance 
 with the statute. He must take another. 
 Nor would it have been a substantial com- 
 pliance, if, having taken one al>le surety, he 
 had accepted a man of straw for tlie second. 
 It would have been a mere evasion of duty. 
 The second surety nmst be able — respect be- 
 ing had to the value of the estate — as well as 
 tlie tirst. Each surety must be "aide." and 
 "alile" with reference to the estate to be 
 secured. (?>t That is the standard by which 
 
 {b) NoTK BY Chancellor JDIIXST(Vs.— 
 Since the delivery of this opinion. I liavc iccon- 
 sidend this iioiiit. and tiiid some reason tu doubt 
 whctlier a proper constiuetion of the st.itute ot 
 Charles demands an ability in eacli surety ei|ual 
 to tlie value of the estate to he administered. 
 In advaneiiijj the opini<in I did. I understood 
 myself to be exprrssin;: the views of my breth- 
 ren, in wliieli I, at the time, cciiiciirri'd. Per- 
 haps it would have been better to have .ibstain- 
 ed, altogether, from expressing auy oi)iuiou on 
 
 191
 
 *482 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 the statute requires the ability of a surety to 
 be lueiisurecl. 
 
 It seems Iiardly necessary to observe, that 
 the ability to which the statute refers, is a 
 pecuniary, or property, altility. It has no 
 
 *483 
 *reference to the intelligence, industry, or ac- 
 tivity of the party, by which he may repair 
 an embarrassed estate, or acquire property. 
 But it refers to the apparent means, or prop- 
 erty, possessed by the party, to which resort 
 may be had to repair the loss, if the estate 
 should be wasted. 
 
 The duty of the ordinary was, to have 
 taken such a bond as we have described. It 
 was a duty imposed on him by law, and 
 which, when he accepted office, he undertooli 
 to perform. In his performance of it, he was 
 not under the control of the parties interest- 
 ed in the estate. It seems to be just that an 
 otRcer, to whom the law has committed the 
 care of estates, belonging, in many instances, 
 to helpless parties — (widows and infants ; — ) 
 whose conduct is beyond their control or in- 
 terference, and who possesses an ample, al- 
 most a capricious, power to reject any se- 
 curity, the sufiiciency of whicli he may doubt 
 or suspect, — should be held to a strict ac- 
 count for any neglect in taking security, by 
 which they have sustained loss. 
 
 A question has been presented, whether the 
 ordinary, in taking bond in this instance, 
 acted judicially or ministerially. The ques- 
 tion is inqiortant ; because, if tlie act was 
 judicial, he is not responsible for error in its 
 performance. It is otherwise, if the act was 
 ministerial. 
 
 We think the Chancellor was right in re- 
 garding the act of the ordinary as ministerial. 
 
 A judicial act generally intends the deci- 
 sion of some question of law, falling within 
 the jurisdiction of the forum, in which the 
 question arises between parties. Tliere may 
 be cases in which the decision may be judi- 
 cial, although there be no litigation, and, of 
 course, no parties; but; even then, the deci- 
 sion must, generally, involve some question or 
 point of law. 
 
 The mere circumstance, that an official 
 act demands, on the part of the officer, the 
 exercise of discretion, vigilance, circumspec- 
 tion or prudence, is not sufficient to make it 
 a judicial act. Many acts, clearly recognized 
 in law as ministerial, require the exercise of 
 these qualities ; as, for instance, of a sheriff 
 making levies, taking bail, &c. 
 
 this point of the case. There was no necessity 
 for it. Independently of any such constructiou, 
 the result attained by the Court of Appeals was 
 inevitable: for even supposing that, by proper 
 construction of the statute, it was sufficient 
 that one of the sureties, or both of them to- 
 gether, shoidd be of ability to make good the 
 estate : the proof in this case was, that nei- 
 ther of them, noj- the two combined, possessed 
 such ability: and the ordinary had no reason 
 to suppose — from appearances presented to him, 
 or from any representations made to him. upon 
 inquiry,— that either of them, or both together, 
 were able to indemnify parties interested for 
 the loss of the estate. 
 
 192 
 
 *484 
 
 *If the ordinary had not determined, in 
 this instance, to take two sureties, it might, 
 possibly, have been supposed that he had 
 gone into an inipiiry, wliether it was his 
 duty to do so ; and, in the course of that in- 
 quiry, had determined that the statute of 
 Charles was no longer of force, and that the 
 whole of his duty was to be gathered from 
 the Act of 17.89. This might, possibly, have 
 been regarded as a judicial error, for which 
 he was not responsible. But the taking of 
 two sureties shows that, if that (piestion 
 arose in his mind, he decided it correctly; 
 and that the only error he committed was in 
 accepting two insufficient sureties. 
 
 According to the principles of many deci- 
 sions in this State(c) ordinaries, in granting 
 administration and taking bond, act min- 
 isterially ; and they have been held liable 
 for omitting to take bonds, for not taking 
 them at the right time, or of the proper form, 
 or for taking them with inadequate surety. 
 This, together with the fact that ordinaries 
 are to give bond. ((/) on which they are amen- 
 able((') and are expressly made liable by the 
 21st section of the Act of 1789, 5 Stat. 110, 
 for omission to take administration bonds, as 
 required by law, — shows, we think, that the 
 legislature, especially in the last instance, 
 did not contemplate the duty in question as 
 judicial. 
 
 But viewing the act of the ordinary, in 
 the case before us. as ministerial, and not 
 judicial, the plaintiffs' counsel have properly 
 conceded, that if the loss, which has I)een 
 sustained, has not resulted fi'oni negligence 
 on his part, but has arisen from causes 
 which, acting faithfully, he could not foresee 
 or control — he is not amenable, especially in 
 this Court. Indeed, according to my recol- 
 lection, such was the doctrine held at law. in 
 a case brought by the distributees of Cates 
 against Cureton, Ordinary of Newberry, and 
 decided in the Appeal Court, about 1S26; 
 which decision cannot now be found in the 
 Clerk's office. 
 
 *485 
 
 *This is, substantially, the doctrine of the 
 Chancellor in this case; and we are satis- 
 fied with it. He announces the position, that 
 the measure of a public officer's duty Is, the 
 exercise of that degree of prudente and dili- 
 gence, which a discreet individual would em- 
 ploy about his private alfairs of the same 
 nature. If an officer, after the exercise of 
 that degree of discretion, should, from un- 
 foreseen causes, fail to attain the end at- 
 tempted by him, he is excusable. 
 
 If the evidence adduced at the hearing had 
 been directed to this point, and the Chancel- 
 lor had concluded from that evidence that 
 
 (c) Simmons v. Watson, 2 Sp. 97 ; Boggs v.> 
 Hamilton 2 Mill, 382; Somerall v. Gibbes. 4 
 McC. 547; State v. Patterson, 1 Strob. 35; 
 Treasurers v. Clowney, 2 McM. 510. 
 
 (rf) 11 Stat. 39. 
 
 (e) 6 Stat. 384.
 
 McRAi: V. DAVID 
 
 *487 
 
 the defendant had come up to this rule, we | will h,,hi him guilty of murder, unless he 
 .should not have disturi.ed his decree; for , extenuates the offense hy evidence, 
 we desire to adhere to tlie rule of tliis Court. After tlie proof made by tlie plaintiffs in 
 wluch is. thaV a Cliancellors conclusion upon this case, the burden of proof was upon the 
 matters of fact is to be respected, lliie the ! oniinary. to .sliow that the bond— shown to be 
 
 verdict of a jury ; and lutt to be set aside, 
 unless for ijross error. We sliall re( ur to 
 this point hereafter. 
 
 insnthcient — was taken by him under circum- 
 stanc<'s wliidi would have imposeil a belief, 
 on men df circumspection and prudence, that 
 
 Let us now proceed to the evidence in this i it was .if the character which the law requir 
 ^''^^^- fd: tliat tbou;,'h tlie sureties were not -able." 
 
 The fact is incontestilily made out. that, 
 at the date of the bond, neither of tlie sure- 
 ties taken, nor both together, nor the two 
 with the aid of their principal, were of suf- 
 ficient means to answer for the estate. 
 Though their insudiciency was developed by 
 subsetiueiit events, it really existed at the 
 time. 
 
 But, to confine ourselves to the two sureties 
 to the bond.— whidi is the true view. — it is 
 certain, that John L. .McIJae. one of them, 
 never had property t^tiuivalent to tlie estate 
 which he undertook to insure. No witness 
 ventured to value his ostensible means be- 
 yond !t!J,uOO or -K'.oOO; and the weight of evi- 
 dence was much lower. The land of the 
 other, (Ilenegan.) had been sold out; and 
 with extHutions against him, amounting real- 
 ly to about .l^lli.lWO. but apparently to near 
 !K19.000. he had hut nineteen negroes, (with 
 some inconsiderable property besides,) to 
 answer these judgment debts. 
 
 These were the circumstances under which 
 the bond was taken. Uo they not show that, 
 in fact, the sureties were — neitlu'r of them — 
 able, in the sense of the statute, for their un- 
 
 *486 
 ♦dertaking? And that the bond which the ordi- 
 nary took was not. in fact, such a bond as 
 the legislature reijuired him to take".' 
 
 Now, ailmitting that the oniinary is al- 
 lowed to show an excuse for his failure, we 
 
 conceive that the excuse is 
 sumed. 
 
 If. in a collateral proceeding, there was a 
 deficiency of proof that a bond luul i)een tak- 
 en, we might presume that the olhcer luul 
 done his duty, and infer that one was taken, 
 liut even in that case, if it were proved that 
 there never was a bond, we could neither 
 in-esume the performance of official duty nor 
 the existence of a bond. And in this case, 
 if there was no proof of the inaliility of the 
 sureties, we should presume their ability, 
 and discard the imputation of ollicial neglect. 
 
 But when the fact is made out. that the 
 sureties taken by the ordinary were not 
 "able," the plaintiffs are not bound to go on. 
 and prove that tlie ordinary had no justifiable 
 reasoih for tak'ng tliem.(/i When a default 
 is jiroved on him the burden of pr<M)f shifts, 
 and he must show his excuse: — in analogy 
 to the criminal law, which, though it pre- 
 sumes every man iiuiocent of crime yet. if a 
 homicide be proved on an accu.sed person, 
 
 (/) Sjiaihawk v. Bartlctt, 2 Mass. R. 198. 
 oRicii.Eq.— 13 
 
 they appeared to be .so: tliat they had the 
 appearance of ability. — and that he was de- 
 ceived. 
 
 His proof was not directed to this jioiiit ; 
 and has signally failed <>f making out a de- 
 fence. The ordinary himself has not. in his 
 answer, prctendeil to aver, that either of the 
 
 *487 
 sureties ♦was. or that he at the time believeil 
 either of tliem to lie. i>ossessed of property 
 eiiual to the value of the estate. Nor has any 
 witness .said that they had, or appeared to 
 have, property of that value. 
 
 The proper (piestion was not. whether the 
 bond, by the compound ability of all the obli- 
 gors, was good. That was not the character 
 of the bond which the ordinary was to take. 
 The law was that the sureties were, .severally, 
 to be of ability to pay the amount of the es- 
 tate: and the question was. whether they ex- 
 hibited substantial appearances of such 
 ability. 
 
 This inquiry was not solved by witnesses 
 saying, that they would have taken the bond 
 for that amount. In the first place, the 
 prudence of the ordinary's taking the bond 
 was not to be left to the opinion of witnesses. 
 It was a matter to be inferred by the Court, 
 upon the evidence of facts. In the next place, 
 it is manifest that the opinion of the witness- 
 es proceeded upon a principle different frouj 
 that which the exigency of the case re<iuired. 
 >t to be pre- 1 '^^'*'-^ supposed that the prudence of taking 
 j the bond dei)ended upon the suHiciency of all 
 the obligors together. Viewed in that light, 
 it might be prudent to take it. But the law 
 reiiuired a bond, good in referenc-e to each of 
 the sureties; and it was not prudent to 
 take one which did not promise to come ui) 
 to this standard. No witness was found who 
 proved that he would have taken this bond, 
 if his object had been. — or if he had been re- 
 quired. — to take one of the character de- 
 scribed. Therefore, though the position be 
 true, that the oniinary might stand excused, 
 if he exercised the prudence of ordinary men, 
 in similiar circumstantvs : the proof adduced 
 does not apply to persons in similar circum- 
 stances, but to others acting under a different 
 rule of conduct, and by no means makes out 
 the defence reciuired in the ca.se. 
 
 Most of the witiies.«jes. who .>;aid they would 
 have taken tin- bond, apiiear to have been Ini- 
 lu-rfectly aiipiainted with the proiierty and 
 indebtedness of the sureties. Not one of them 
 says that John L. McRae appeared to be 
 "able" to make good the estate. Those 
 
 193
 
 »487 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 who appeared best acquaiuted with Ileiiegan, 
 
 *488 
 *relied, for their opiniou, more on his capac- 
 ity than his property. 
 
 But, in opposition to the opinion of tlie 
 wliole of them, is tlie declaration of the de- 
 fendant to Weatherly, that, in taking the 
 bond, he relied more on Colin McRea, the ad- 
 ministrator, thaji on tlie sureties— iwhich 
 shows that he deemed it unnecessary to make 
 the investigation which his duty required, 
 or, if he did, that he was left in doubt as to 
 the condition of the latter ; and (contrary to 
 his duty) risked the bond on the means of 
 the principal. 
 
 Besides, it is not to be forgotten, that the 
 condition of Henegan was one which the de- 
 fendant was bound to notice. Overwhelming 
 judgments existed on record against; him, 
 and his remaining property was levied on, 
 and advertised on the door of the very Court 
 House in which thei ordinary's office was. 
 Did not this oblige him at least to inquire V 
 and has he produced a single witness to prove 
 that he ever did so? or has he proved that 
 he ever had a favorable representation of 
 the means of this surety, or of his co-surety, 
 from any person whomsoever? 
 
 On the whole, we are of opinion, that the 
 decree, so far as it exonerates the defendant 
 from ac-countability for the assets which 
 came to the hands of Colin McRae, was er- 
 roneous, and should be reversed: and it is so 
 ordered: and it is adjudged that he is ac- 
 countable for the same. 
 
 We are of opinion, that the objection to 
 the exercise of jurisdiction, taken in the 
 
 194 
 
 pleadings, is obviated by the fact, that *t 
 was waived at the hearing, and has not been 
 insisted on here. Were it otlierwise, it is not 
 clear that it could prevail. 
 
 Certainly, the plaintiffs have a right to 
 claim an account of so much of the estate as 
 came to the hands of the defendant. This 
 gives jurisdiction to the Court: and, when 
 complete justice recjuires it to go on, it may 
 dispose of the whole case. 
 
 Not only so, but the plaintiffs have a right 
 to an account of the assets which came to 
 the hands of Colin McRea: and, for that pur- 
 pose, may bring in all persons who have 
 
 *489 
 made them*selves answerable for his adminis- 
 tration of them. The defendant, as we have 
 adjudged, has made himself thus answerable. 
 It may be, however, that he stands as surety 
 for the parties to the administration bond: 
 and it is left to the consideration of the 
 plaintiffs, whether they will venture to ask 
 a final decree, until they have brought in 
 the sureties, or their representatives. It 
 would seem proper to bring them in. 
 
 In closing this judgment, it may be proper 
 to observe further, on the subject of jurisdic- 
 tion, that a ground of jurisdiction exists in 
 preventing a multiplicity and circuity of 
 suits. 
 
 It is ordered, that the Circuit decree be 
 moditied, according to this judgment, and 
 that the cause be remanded to the Circuit 
 Court. 
 
 DUNKIN and WARDLAW^ CC, concurred. 
 Decree modified.
 
 IN THE COURT OF ERRORS 
 
 COLU-M CIA— DECEMBER, 1852. 
 
 All Tiiic JuDGLs and Chancklloks i'rl:sext, except Evaxs, J. 
 
 5 Rich. Eq. *49l 
 
 *R. C. FOWKE, Ordinals . v. \V.\L II. 
 THOMl'SUN. 
 
 (Columbia. Dec, 1S32.) 
 
 [■/mlfjes <S;=>:i",.] 
 
 The out-f:uinK Ordinary is l)uund to turn 
 oyer to iii.s succt'ssor all moneys in iiis hands, in 
 his ottieial capacity as Ordinary, as well as the 
 books. i)ai)ers and furniture, and every thing 
 ••ise, belungins; to the oUioe. If the moneys be- 
 lonjj; to dereiiet estates, he is bound to turn 
 them over, even in a ease where the estate has 
 been in his hands more than six months, and 
 nothinjir remains to be done but to deiiosit tlie 
 money in Bank; or, where proeecdin^s in the 
 Court of Equity are pending against him, and 
 an order has been made, requiring him to pay 
 out the monej". 
 
 I Ed. Note.— For other cases, see Judges, Cent. 
 Dig. § lUS; Dec. Dig. <®=:533.J 
 
 [Court a <©=:!!».] 
 
 L'nless questions of jurisdiction are raised, 
 according to the established forms, and at the 
 proper stage of the proceedings, parties cannot 
 reijuire the Coui-t. as a aiatter of right, to con- 
 sider and decide them. 
 
 I Ed. Note.— For other cases, see Courts, Cent. 
 Dig. §§ 152-15(3: Dec. Dig. <®=o"J.] 
 
 This was an appeal from the decision of 
 his Honor, Chancellor Wardlaw. The Equi- 
 ty Court of Appeals ordered the case to this 
 Court, where it . was now liearil. 
 
 Hutson. Bellinger, for appellant. 
 J. T. Aldrich, A. P. Aldrich, contra. 
 
 The opinion of the Court was delivered by 
 
 DARGAN. Ch. The defendant was the 
 Oi-dinary of Karnwell District. His term of 
 iitlice expiretl on or about the 14th Ai)ril, 
 1.S52, when his successor, the plaintiff, hav- 
 ing been previou.sly elected, was duly tiuali- 
 fied, and entered upon the discharge of the 
 duties of his othce. 
 
 *492 
 
 *The plaintiff C()nii)lains, that whilst the 
 said Thompson was in ollice as Ordinary, lie 
 took charge, in his official character, of 
 various estates, as derelict, under the pro- 
 visions of the Act of Assembly of IN."}!), and 
 sold considerable real t'state, by virtue of 
 his office as Ordinary: and that large sums 
 of money, both on account of said derelict 
 estates, and on account of the .sales of real 
 
 estate, remained undistributed and umlispos- 
 ed of, In the hands of the said W. H. Thomf/- 
 son, at the e.\i)iration of his term of oflice. 
 The idaintiff refers to a statement of various 
 sums .so received by the said W. II. Thomp- 
 son, but profes.ses to be ignorant whether 
 the statement is full and complete, as to all 
 the sums received l»y the said W. H. Thomp- 
 son, as Ordinary, during his term of oHice. 
 and renmining in his hands at the ter- 
 mination thereof. He prays not to be con- 
 cluded by the statement referred to in his 
 bill, and to be permitted to show other 
 amounts received by the said W. H. Thomp- 
 son, of a like character, and not embraced in 
 the said statement. The plaintiff' contends 
 that all .sums of money remaining in the 
 hands of his predecessor, the saitl W. H. 
 Thompson, on account of the sale of real 
 estate made by him, and on account of dere- 
 lict estates, whereof he had charge, during 
 his term of office ; and also all sums of mon- 
 ey received by the said defendant, since the 
 exitiration of his term of office, ought to be 
 paid to him, (the plaintiff,) and are of right 
 receivable by him. The plaintiff further 
 says, that on application to the defendant 
 for the sums of money which have come 
 into his hands, in the manner before stat- 
 ed, the said defendant has refused, &c. 
 1 The plaintiff prays for the usual process, 
 and for an injunction against the defendant, 
 and for a discovery and account of all sums 
 of money which have come into his hands, 
 as Ordinary, during his term of office, undis- 
 tributed and undispo.sed of, whether the 
 said sums of money have been received by 
 him on account of the sales of real estate, or 
 on account of derelict estates: and also of 
 all sums of money which he maj' have re- 
 ceived and paid over as Ordinary, since the 
 expiration of his term of office. The plain- 
 
 *493 
 tiff further prays, that the said de*fendant 
 may be decreed to pay over to him, as the 
 present Ordiimry, all the said several sums 
 of money, and for general relief in the prem- 
 ises. 
 
 The defendant, in his answer, admits that 
 he was the Ordinary of Barnwell District; 
 
 «=»For other cases see same topic and KEY-NUMBER la all Key-Numbered Digests and Indexes 
 
 195
 
 *493 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 and that he was elected and entered upon | 
 the duties of his office ; and that his odicial | 
 term has expired, as stated in the bill. He j 
 admits, that the plaintiff is his successor; 
 that he was duly qualified, and entered up- 
 on the discharge of his duties as Ordinary of 
 Barnwell District. He admits, that he has 
 sold, in many cases, real estate for parti- 
 tion, and received for the same large sums 
 of money, some portions of which still re- 
 mained in his hands, at the expiration of 
 his term, and have been retained by him 
 against the demand of the plaintiff. He ad- 
 mits, that he had in his charge, as Ordi- 
 nary, during the continuance of his term, 
 sundry estates as derelict; that, as to the 
 derelict estate of William J. Fielding, and 
 that of B. M. Ennicks, he has paid away 
 moneys since the expiration of his term of 
 office. As to the derelict estate of Jno. A. 
 Bronson, he says, the assets of said estate 
 have been collected, and all the debts paid, 
 and proceedings are now pending in this 
 Court against him for a distribution of the 
 said estate, the said proceedings having been 
 commenced against him before he retired 
 from the said office ; that, as to the derelict 
 estate of John McDaniel, he has collected 
 some of the assets, and paid all the debts of 
 a higher order, such as judgments, mortgages 
 and bonds, and that the balance of the chos- 
 es in action of the said estate have been 
 turned over to the complainant, with the 
 papers of the office; but before retiring 
 from the said office, a bill was liled against 
 the defendant by one Barnett Ashley, the 
 surviving partner of the said McDaniel. for 
 an account of the said partnership, and the 
 cause is still pending in this Court. That, 
 as to the derelict estates of the aforesaid 
 Wm. J. Fielding and B. M. Ennicks, and the 
 derelict estates of Julia Kuhtman and T. L. 
 Ennicks, proceedings have been had in this 
 Court, while the defendant was acting as 
 
 *494 
 Ordinary, *and orders were made directing 
 him to settle and pay out the moneys of the 
 said estates. 
 
 The defendant bases his defence for refus- 
 ing to pay over those moneys to his suc- 
 cessor, the plaintiff, on the ground that the 
 law did not retiuire him to turn over those 
 moneys to his successor, and did not author- 
 ize his successor to receive the same, and, 
 consequently, the plaintiff could give him, 
 ;for such payment and transfer of the funds, 
 no legal discharge. The defence set up in 
 (.the answer involves the legal proposition, 
 whether the defendant, as the out-going Or- 
 .dinary, was requi-red to turn over to his 
 successor the sums of money received by the 
 former, in the manner before stated; and 
 whether the plaintiff, as his successor, was 
 duly authorized to receive the same. 
 
 The case came to a hearing on the bill and 
 answer before the Chancellor, who made a 
 decree as follows: 
 196 
 
 "It is ordered, that Wm. H. Tliompson, the 
 retiring Ordinary, do pay to his successor, 
 Itiehard C. Fowke, the moneys remaining In 
 his hands, arising from the sale of real es- 
 tate. 
 
 "It is also ordered, that he pay to the said 
 Richard C. Fowke the moneys remaining in 
 his hands, in tho.se derelict estates whore 
 the six months had not expired when the 
 said Wm. II. Thompson retired from oilice. 
 
 "It is further ordered, that the injunction 
 be dissolved, as to those derelict estates 
 where orders have been made by this Court." 
 The injunction which the decree refers to, 
 and dissolves in part, was an order for an 
 injunction, granted by the Commissioner, on 
 the usual conditions, restraining and forbid- 
 ding the defendant from dis])osing of. or 
 paying to any person except the plaintiff, 
 any sum or sums of money in his hands, 
 arising from the sale of real estate, and any 
 sums of money in his hands belonging to any 
 derelict estate or estates. 
 
 The plaintiff, by way of appeal from the 
 Circuit decree, moves this Court to enlarge 
 "the said Circuit decree, so as to pass an 
 order, compelling the retiring Ordinary, Wil- 
 
 *495 
 liam H. *Thompson, to pay over and account 
 for all the moneys of derelict estates re- 
 maining unpaid in his hands at the expira- 
 tion of his office, whether orders had been 
 made, or proceedings were pending, or 
 whether six months had expired or not." 
 
 The defendant was content with the decree, 
 and has not* appealed. Such is the state of 
 the pleadings, and of the facts upon which 
 his appeal has Ijeen heard. 
 
 No question as to the jurisdiction of the 
 Court to entertain the cause was made on the 
 Circuit trial, nor has any such proposition 
 been assumed and submitted to the Court by 
 way of appeal. It is usual to leave questions 
 of this kind to the astuteness of parties, and 
 they must be raised according to the estab- 
 lished forms, and at the proper stage of the 
 proceedings. Presented in no other way, is 
 the Court bound, as a matter of right, to be 
 demanded by the parties, to consider and de- 
 cide the question of jurisdiction. The Court 
 may, in its discretion and on its own motion, 
 take notice of its want of jurisdiction. The 
 defect of jurisdiction should be glaring, and 
 the motive urgent, which would render such 
 a course proper. When a party has insti- 
 tuted proceedings, which overstep and disre- 
 gard the great and distinguishing boundaries, 
 which mark and separate the different 
 branches of the judicature of the country, 
 the Court will, and it becomes its imperative 
 duty to, notice the objection, at any stage of 
 the proceedings, and thus counteract the 
 tendency to a general amalgamation of the 
 powers of the different Courts. 
 
 I must not be understood, however, as in- 
 timating that the objection to the jurisdic- 
 tion, if it had been properly pleaded, would 
 have prevailed. On the contrary, I think that
 
 FOWKE V. THOMPSON 
 
 <498 
 
 the jurisdiction of tho Court, on a strict con- 
 sideratiDU of tho subject, may be sustained. 
 It is true, tliat the plaintiff may have pre- 
 ferred Ills cumpbiint to a Court of Law, and. 
 on the case made here, may have obtained a 
 very effectual reli«>f. The Judjies of that 
 Court are invested with all the powers of the 
 Court of Kiuii's lU'uch, in the supervision, 
 control and restraint of all the inferior tri- 
 bunals of the State. And this power may ho 
 
 *496 
 as *W('ll exercised in I he restraint of those 
 who illeirally intrude themselves into the per- 
 formance of ofhcial functions, as in confinins 
 such as have tho lonitimato ollicial investi- 
 ture within the just limits of their power 
 and authority. It does not follow, because 
 a Court of Law may have issued its manda- 
 mus to Wm. II. Thomjison. the out-i^oins Or- 
 dinary, to transfer all the funds which came 
 into his possession, as Ordinary, to his suc- 
 cessor, that his successor may not come into 
 this Court for a discovery and an account as 
 to thdse funds. The Law Court may have 
 been embarrassed, for the want of facilities, 
 in taking the account, and its mandate may 
 have been rendered nnixatory, for the want of 
 a discovery. The plaintiff's bill, though not 
 after the most approved form, is a bill for 
 discovery, account and relief, and may well 
 be sustained, upon the jurisdiction which this 
 Court possesses over such matters. 
 
 The retiring Ordinary rests his defence for 
 not transferrin.ir the moneys in his hands to 
 his successor, on the broad position, that he 
 is not bound by law to make tho transfer, and 
 that the in-coming Ordinary is not entitled to 
 receive such moneys. He deduces his con- 
 clu.sion from the fact, that the Act of 1S.39, 
 entitled. "An Act concerning the ofHce and 
 duties of Ordinary," (11 Stat. .39.) contains no 
 explicit provision to this effect. The 37th 
 section of the Act declares that "every Or- 
 dinary shall be responsible for the hooks, pa- 
 pers, and also for the furniture in his olflee; 
 and upon his retiring from oflice. or his 
 death, he, or his representatives, shall be 
 bound to transfer all such books, pai)ers and 
 furniture to his successor, inunediately after 
 such successor shall iiave entered upon the 
 duties of his othce, under a penalty of one 
 thousand dollars, to be recovered by indict- 
 ment, and of imprisonment, not exceeding one 
 year." The absence of any specific requisi- 
 tion in this, and the otiier clauses of the Act, 
 that the retiring Ordinary shall transfer mon- 
 eys received during his term, in his official 
 capacity, to his successor, serves as the 
 ground of that construct i(ui, by which the de- 
 fendant felt himself authorized to detain such 
 moneys, in oiiposition to the right and the de- 
 mand of his successor. It is obvious that 
 
 •497 
 this ♦construction is a negation of the right 
 of tho incoming Ordinary to receive from his 
 predecessor, not oidy the moneys of derelict 
 estates remaining in his hands, under all cir- 
 cumstances, but also moneys In his hands 
 
 arising from the .sale of real estate: in re- 
 gard to which the defendant has submitted, 
 without appeal, to the decree that he should 
 imy over; and in opposition to which not one 
 si)ecious reason can be urged. The length to 
 which such a construction leads, very natu- 
 rally creates a suspicion of its unsoundness. 
 It is the opinion <tf this Court, that, upon a 
 fair and proper inteiprotation of the Act, 
 considered in all its provisions, and in refer- 
 ence to the objects the Legislature had in 
 view, the implication arises, that the out- 
 going Ordinary was bound to turn over to his 
 succes.sor, as well the moneys in his posses- 
 sion, as the books, papers and furniture. 
 There is certainly nothing expres.sed to the 
 contrary, nor is a negation of such a con- 
 struction to be implied. 
 
 The question was jirosented to this Court, 
 in the argument at tho bar, as if the obliga- 
 tion of the retiring Ordinary to turn over to 
 his successor the books, papers, furniture 
 and money in his possession, had its origin 
 in, and depended upon, the provisions of tlie 
 Act of 18.39. It would be a great fallacy to 
 consider and decide the question upon such 
 a narrow view of the .subject. The Act of 
 1S.39 did not establish the oflice of Ordinary, 
 but was intended to regulate in a more per- 
 fect manner its powers and responsibilities, 
 to consolidate the scattered and pre-existing 
 statutory provisions into a more intelligible 
 system, and to create some additional gimr- 
 antees. for tho performance of its high and 
 important tni.sts. Thus, the Act of is.39 pro- 
 vides, in express terms, that the retiring Or- 
 dinary shall deliver over to his successor the 
 books, papers and furniture in his possession, 
 appertaining to the ofHce. under certain speci- 
 fied penalties. Thos»> jtenalties were then for 
 the first time declared, but who can doubt 
 that tho obligation to transfer books, papers 
 and furniture was anterior to that Act. How 
 is it possible, from the very nature and con- 
 stitution of the office, for it to be otherwise, 
 than that tho incundient, who is the legal 
 
 *498 
 custodian of the books, jiapors *and furni- 
 ture of his office, who is resi)onsible for their 
 safe keeping, and who is daily required to 
 l)erform responsible duties connected with 
 them, should not have them in his possession? 
 The same principle applies to all ollicos, and 
 to all subject matter of which tho officer, as 
 such, is to have the charge, in connection with 
 which he is to perform tho duties, and for 
 which tho law nuikos him responsible. 
 
 This view of the subject applies with oipial 
 propriety to moneys and other things that 
 have come into the hands of the Ordinary, 
 virtuto officii, as it does to books, papers and 
 furniture. It may be that tho omission of all 
 mention of money in connection with books, 
 papers an<l furniture, in the .3Tth section of 
 the Act, if a casus ouii.ssus as to the i)onal- 
 tles imp"oso<l by the Act. But the obligation 
 of tho retiring Ordinary to transfer to his 
 successor moneys and every thing el.se which 
 
 197
 
 *49S 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 have come into his possession, in liis official 
 character, may well he made to rest on the 
 nature of the office, the (hities to he perform- 
 ed, the ohligations incurred Ity the incum- 
 l)ent, and the great principles of fitness and 
 ■expediency. It is not fit or expedient that 
 the duties of this ofl^ce should he partitioned 
 among several pei'sons at the same time; or 
 that the out-going Ordinary, in retiring from 
 oHice, should withdraw with him, as attached 
 to his personal character, some portion of the 
 duties, and some portion of the suhject mat- 
 ter concerning which those duties are to he 
 performed. There is an unity in regard to 
 the incumbency of the office contemplated hy 
 till the provisions of the law, as to its duties 
 and trusts, which forbids any such conclu- 
 sion. The inference to my mind seems to he 
 inevitable, that whatever has come into the 
 possession of an Ordinary, as such, and in his 
 official capacity, cannot attach to him in his 
 personal character, and must, at the expira- 
 tion of his term, be transferred to his succes- 
 sor. 
 
 And the duties of the office are to be per- 
 formed by but one incumbent for the time 
 lieing. This must be the great rule, to which 
 there may be some exceptions, called for 
 by particular emergencies — as, for example, 
 
 *499 
 when the Ordinary himself de*sires to be- 
 come executor or administrator, it is pro- 
 vided that he may qualify before the Clerk 
 of the Court of the same District, who, pro 
 hac vice, becomes the Ordinary. 
 
 This brings me, in a natural order, to the 
 consideration of that branch of the discus- 
 sion which has arisen under the 7th section 
 of the Act of 1839, which is in the following 
 words: 
 
 "In case any estate shall be left derelict, 
 either from partial administration by an ex- 
 ecutor or administrator, or by reason of no 
 a Implication for letters of administration or 
 letters testamentary, or otherwise, the Ordi- 
 nary of the District, who might be entitled 
 to grant stich letters, shall collect and take 
 charge of the same, for the period of six 
 months, after which time, if administration 
 be not sooner applied for, he shall sell the 
 sam&, after due public notice, either for cash, 
 or upon a credit of six months; and, after 
 payment of the debts of said deceased, shall 
 deposite in the Bank of the State of South- 
 Carolina, or in some one of its branches, the 
 net proceeds, to the account of the estate to 
 which it belongs, and shall file in the office 
 of the Clerk of Common Pleas, of his Dis- 
 trict, a certificate of such deposite; and, to 
 the end that he may so collect such estate 
 and effects, he shall have power to institute 
 and maintain all necessary legal proceedings. 
 And, for the services aforesaid, he shall be 
 entitled to five per cent, of the value of the 
 estate." 
 
 It has been contended, that when an Or- 
 dinary for the time being, administers upon 
 a derelict estate, under this provision of the 
 108 
 
 Act, he is not bound to transfer to his suc- 
 cessor, at the expiration of his term, the 
 money remaining in his hands, appertaining 
 to such derelict estates. It is further con- 
 tended, that if bound to transfer the mon- 
 eys in his hands belonging to derelict es- 
 tates, where such estates had not been in 
 his hands for six months previous to the e.x- 
 piration of his term, yet that he was not 
 bound to transfer the moneys in his hands 
 belonging to derelict estates, in cases where 
 such estates had been in his possession for 
 more than six months previous to the expira- 
 tion of his term, nor in those cases of dere- 
 
 *500 
 lict estates in which orders *had been made 
 by the Court of Eipiity, and in which pro- 
 ceedings are now pending. 
 
 The Chancellor who rendered the Circuit 
 decree overruled the first proposition, and os- 
 tensibly sustained the two last, as excep- 
 tions. Rut the Chancellor was informed at 
 the hearing, (as conceded by counsel here,) 
 that in all derelict estates remaining in the 
 hands of the retiring Ordinary, of more than 
 six months standing, either none of the pre- 
 scribed acts of administration were unpe;*- 
 formed, except the deposite in bank of the 
 net balance, after the payment of debts, or 
 bills had been filed by the distributees in the 
 Court of E(iuity, against the Ordinary. And 
 he meant to hold that the incumbent was not 
 entitled to the transfer of moneys, where 
 the ministerial act of making the deposite 
 had alone remained, or the Court of Equity 
 had then taken cognizance. He employed the 
 term "six months" as a brief description, 
 sufficient in the supposed facts, where some 
 act of administration beyond making the de- 
 posite remained to be done. 
 
 Thus the Chancellor held, that where the 
 retiring Ordinary had not been in the pos- 
 session of the derelict estates for six mouths 
 previous to the expiration of his term, he 
 was bound to turn over to his successor the 
 moneys remaining in his hands belonging to 
 such derelict estates ; but that he was not 
 so bound, where the derelict estate had been 
 in his hands for more than six months pre- 
 vious to the expiration of his term, and noth- 
 ing remained to be done but to make the de- 
 posite ; nor in any case of derelict estate, 
 where orders of any kind have been made by 
 the Court of Equity in reference to it, and 
 in which proceedings were pending. 
 
 I am unable to discriminate as the Chan- 
 cellor has done. If, in reference to those 
 derelict estates which had been in the hands 
 of the defendant for more than six months 
 before the expiration of his term, he had 
 complied with the requirements of law, had 
 deposited the money in the Bank of the 
 State of South-Carolina, or some one of its 
 
 *501 
 branches, had taken a cer*tificate of deposite, 
 and had filed the certificate in the office of 
 the Clerk of the Common Pleas of his Dis-
 
 FOTN'KE V. TIIOMrSOX 
 
 ^50:". 
 
 trict, I sluiuld have no liesitatiDii in saying 
 that the dnty of the Ordinary, in reference 
 to that fund, was complete and discharged, 
 and tliat the in-coniiny Ordinary would have, 
 of right, no power or control over it. It 
 would he as much heyond tlie reach of the 
 officer who made the deposite, as of hiV suc- 
 cessor. It would have to remain on deposite 
 until some Court of competent jurisdietion, 
 at the instance of the partit's interested, 
 should order its removal or distribution. 
 
 lUit that is not the case we are considering. 
 This defendant, in reference to some of these 
 derelict estates in his hands, though he has 
 collected the assets, and though nxire than 
 six months have expired after said estates 
 have come into his possession, in contumacy 
 of the law, has made no deposite in any 
 Bank. And it was admitted by his counsel. 
 that he had made no deposite in Hank, on 
 account of derelict estates, during his whole 
 temn of office. And the (juestion is, whether 
 he shall be permitted to retain, after the ex- 
 piration of his term, the funds of derelict 
 estates, which he has thus held over against 
 the recpiirements of the law. Is he to be 
 permitted to retain them, because he has 
 not done his duty, and has failed to make 
 the deposite? Is his non-feasance to place 
 liim in a better condition than if he had prop- 
 erly discharged his trusts? As the money 
 has not been deposited in Bank, where the 
 law intended it to go, the next best and safe- 
 est place of keeping is, the possession of the 
 Ordinary for the time being. 
 
 What I have said in the preceding part of 
 this opinion, and the conclusions at which 
 I have arrived, leave me but little to add on 
 this branch of the subject. My conclusion 
 was, that all hooks, papers, furniture, mon- 
 eys, and everything else, which have come in- 
 to the hands of an Ordinary virtute officii, 
 and which remain in his hands at the ex- 
 piration of his term, go over to his succes- 
 sor as a matter of course, unless there be 
 some special provision of law to the con- 
 trary, constituting an exception. 
 
 Do derelict estates, under the 7th section 
 
 *502 
 
 of the Act of 1S39, ♦pass into the hands of 
 the Ordinary in his official character? It 
 is the Ordinary of the district, who may be 
 entitled to grant letters of administration, or 
 letters testamentary, on such derelict es- 
 tates, who is required to take charge of 
 them. Surely, where the officer is invested 
 with a power, or subjected to a duty or re- 
 sponsibility, in his official name, the power 
 and the duty attach to him in his official, 
 and not in his personal character. It means, 
 the incumbent for the time being, shall do 
 this or that, and be subject thus and so. 
 There can scarcely be a difference of opin- 
 ion on the construction of the Act of 1S.'59 in 
 this particular. It plainly means, that the 
 Ordinary for the time lieing, and as such, 
 shall take charge' of derelict estates, and 
 
 I that he shall administer them in his official 
 character. 
 
 It remains to be seen, whether a distinc- 
 tion can be drawn in favor of the defendant, 
 in reference to those derelict estates where 
 orders have been made by the Court of Equi- 
 ty, iind in which proceedings are pending. 
 This distinction, if sustained, would embrace 
 all cases where orders have been made, 
 though it may have been merely a prelimi- 
 nary order; and perhaps all cases where 
 imiceeclings were jiending and urders made, 
 though the retiring Ordinary had not been in 
 possession six months. I do nut think that 
 the distinction is warranted by any sound 
 construction of the Act. If proceedings be 
 instituted against the Ordinary for the time 
 being, and during the pendency of the pro- 
 ceedings, his term of office expires, I per- 
 ceive no reason why this shoulil be an ex- 
 ception to the general rule, that he should 
 transfer all the funds in his hands, as Or- 
 dinary, to his successor. If he be required 
 by law to pay, and does, in fact,, pay to his 
 successor, his plea to that effect would dis- 
 charge him. The new Ordinary might, and 
 ought to, be made a party by sui»plemental 
 bill, and it might be necessary and proper 
 to retain the bill against both. There could 
 be no difficulty or injury to any. The case 
 bears a strong analogy to one. where an ex- 
 ecutor or administrator has died, and let- 
 ters of administration, de bonis non, have 
 been sued out. The parties interested in the 
 estate might proceed for account against the 
 
 ♦503 
 administrator de bonis ♦non, and at the 
 same time against the legal representatives 
 of the first executor or administrator. And 
 this, in the case supposed, would be the 
 proiKT course. 
 
 Some difficulty has been felt, in reference 
 to cases of derelict estates, in whicli the re- 
 tiring Ordinary, on proceedings against him, 
 during his term, has been ordered to i>ay out 
 a iiarticular sum of money to particular in- 
 dividuals. And it is said (though the fact 
 d(tes not appear in the brief) that such is the 
 predicament of the defendant as to one or 
 more of the derelict estates in his hands — the 
 funds of which he is holding over. This fact 
 is apt for my argument. For it is alst) stated, 
 that the persons, in whose favor such orders 
 for payment have been made, are absent, and 
 have long been abst-nt, from the State — are 
 ignorant of their rights — and their places of 
 residence, and even whether they be living 
 or dead, unknown. Is the retiring Ordinary 
 to hold in his hands, as a private person, and 
 for an indetiiiite period, the funds of these 
 absent, and perhaps deceased persons? It is 
 not assuming much to say. that such funds 
 would be safer in the keei)ing of a responsi- 
 ble officer, than in that of a private person; 
 besides, it would be the duty of the new Or- 
 dinary to make a deposit in the Bank forth- 
 with, on receiving the funds. 
 
 19»
 
 ^•503 
 
 5 RICHARDSON'S EQUITY RErURTS 
 
 There can be no ditHciilty in the fact, that 
 the defendant, Thonijisoii, has been ordered 
 to pay money to particular individuals; for, 
 if his successor is entitled to receive from 
 liim money so ordered to be paid out, the re- 
 ceipt of liis successor will operate as a dis- 
 charge from the claim of the person to whom 
 payment was ordered to be made. Such 
 claimant would, in the event of a receipt by 
 the new Ordinary, have to look to him, and to 
 hold him responsible for any mis-application 
 of his funds. 
 
 The Circuit decree must be modified and 
 enlarged. 
 
 It is ordered and decreed, tliat the defend- 
 ant, W. H. Thompson, late Ordinary of Karn- 
 well district, do account for, and pay over, 
 to his successor in oHice, R. C. Fowke, all 
 moneys remaining in his hands as Ordinary, 
 and not lawfully appropriated or di.sposed of 
 at the expiration of his term of otKce, wlietli- 
 
 *504 
 er said '"moneys were derived from derelict 
 estates, taken charge of by tlie said defend- 
 ant, during his oHicial term — from tlie sales 
 of real estate — or from any other source 
 whatsoever. 
 
 It is further ordered and decreed, that the 
 defendant pay tlie costs. 
 
 DUNKIN, Ch., and O'NEALL, WARD- 
 LAW, and FROST, JJ. concurred. 
 
 WARDLAW, Ch. I dissent from so mucti 
 of the decree, in tliis case, as rerpiires tlie ex- 
 Ordinary to transfer funds in his possession 
 to his successor, where bills in Equity have 
 been filed against the former, by the dis- 
 tributees of the derelict estates in his hands. 
 In some of these cases, the Court of Equity 
 has adjudged and ordered, by final decrees, 
 that William II. Thompson pay to persons, 
 by name, specific sums of money ; and I do 
 not see hov^• he could protect himself from 
 process of attachment, if he failed to perform 
 the decrees. This Court, sitting as a Court 
 of Equity, now orders the defendant to do 
 that which is directly inconsistent with for- 
 mer subsisting decrees, namely, to pay to the 
 present plaintiff the same money previously 
 ordered to be paid to Kottmau, and others. 
 By the judgment of this Court, error is im- 
 puted to the Chancellor who heard the cause, 
 because he did not entertain appeals fi*om 
 the decisions of his equals in authority, and 
 re\erse or modify their decrees. 
 
 The notion is unfounded, that when a per- 
 son is effectually sued as an officer, the judg- 
 ment is against him officially, or in other 
 words, against the metaphysical entity of his 
 office. Upon this conceit, if a rule against a 
 sheriff to pay money be made absolute, the 
 liability would follow the oflice into the hands 
 of his successor, where there was no default 
 on the part of the successor. It is no an- 
 swer to this illustration to say, that by stat- 
 ute, a sheriff may be ruled for two years aft- 
 200 
 
 er he retires from oifice. That jtrdvislon <inly 
 shows, that for some purposes, two persons 
 may cotemporaneously fill the office of sher- 
 iff; and, if judgments against an officer be 
 
 *505 
 against the office, both would be liable, ♦un- 
 der the rule made absolute. All proceedings 
 of Courts are, in effect, against natural per- 
 sons. This is least obvious where judgment-s 
 are obtained against the corporate assets of 
 corporations aggregate, but even there, the 
 assets must be found in the possession of cor- 
 porators, or other men. The Ordinary is a 
 coii)oration sole; but, in proceA'di.ngs in 
 Courts, reference is necessarily had to the 
 individuals who have filled, and fill, and .shall 
 fill, the oHice. The present suit is Fowke 
 against Thompson — man against man — not 
 an oHice against what has been an office. 
 There is nothing peculiar in the circum- 
 stance, that the liability of the person sued, 
 may be restricted to the estate he holds in a 
 particular capacity. Such is usually the fact 
 as to judgments against executors, adminis- 
 trators, and other trustees. 
 
 It may be said, that if the ex-Ordinary pay 
 tq the incumbent the UKmeys he has been de- 
 creed to pay to others, he may plead, to any 
 process against him personally, that he has 
 transferred the funds that were in his posses- 
 sion, at the dates of the decrees, to his suc- 
 cessor in oifice. But it may be, that those 
 who may have decrees against him, will not 
 indulge him with leisure, to open, or to 
 plead, and will lodge him in jail. Besides, 
 the procedure of pleading after judgment is 
 anomalous. Moreover, even indulgent credi- 
 tors, having judgments against him, may 
 well be disinclined to surrender their lien and 
 ready remedy against one undoubtedly sol- 
 vent, and take in .substitution a claim against 
 another, who is no party to the record, and 
 who, possibly, may be less able, or utterly 
 unable, to pay. 
 
 It is argued, however, that these decrees 
 by the Court of Equity for payment by the 
 Ordinary, to the distributees of derelict es- 
 tates, are void, as the Court has no jurisdic- 
 tion or authority to contravene the special 
 and limited mode of administering derelict 
 estates, prescribed to the Ordinary by the 
 legislature. The Court, in making these de- 
 crees, did not assume any power to repeal or 
 modify the Acts of the legislature. Yet it 
 did not construe the Acts as ousting the 
 Court of its jurisdiction against trustees, un- 
 der the general heads of discovery, account, 
 
 *506 
 and *partition. It is plain, that the course 
 of administration of derelict estates pre- 
 scribed to the Ordinary, is, in its whole ar- 
 rangement, alternative and substitutional. 
 The Ordinary may, at any stage of his trans- 
 actions, be superseded by a regular adminis- 
 trator, or arrested in his action by the Supe- 
 rior Courts. He is to pursue a certain rou- 
 tine, if not interfered with by the parties in
 
 FOWKE V. THOMPSON 
 
 *50"; 
 
 interest, or the Courts; but not. at all 
 events, to take the round, where, by the inter- 
 vention of tlie distributees, the estates cease, 
 in substance, to be derelict. 
 
 There is no doubt that the Ordinary, in ad- 
 niinisteriii;,' these estates, is a trustee, nor 
 that tliis Court is the proper trilmnal for en- 
 forcing; trusts. The purpose of the lejiislature 
 was. to provide a trustee, where the usual 
 modes of appointment failed, Itut surely not 
 to exempt the trustee from the usual remedies 
 of heneticiaries ajiaiust him. If the Ordinary 
 is not liable to interference from this Court, 
 it would seem to follow, that the only resort 
 of (listril)utees is upon the funds he chooses 
 to deposite in Bank, as the net balance of his 
 transactions. His judjiment in his own favor, 
 rendered without opportunity of contestation, 
 however inadetpiate or fraudulent, wiP. be 
 conclusive. In the Court of Eipiity, an in- 
 terested party does not adjust his own ac- 
 counts, and the administration of trusts is 
 ><ubjected to thorough examination by com- 
 petent otlicers, under the vigilant oversij;ht 
 of the parties in interest. 
 
 In all cases pendint; in this Court, against 
 the ex-Ordinary, whether in judgment or not, 
 the funds are transferred by operation of law 
 from the inferior to the sui)erior tribunal : 
 and the 7th section of the Act of iSo!). has no 
 longer application. Wh<»rever this Court 
 takes cognizance of a cause, it nmst have the 
 charge, in some sort the custody, of the funds 
 in controversy, to enable it to do justice to 
 the parties, in the distrilmtiou of the funds, 
 and it immediately ousts the inferior tribunal 
 of all authority to act, concerning the sub- 
 ject of controversy, except under the direc- 
 tion of this Court. Where, for example, an 
 administrator, or other trustee, is called to 
 account in this Court, he is retiuired, bv the 
 
 *507 
 procedure of the Court, to make his an*nual 
 returns, pending the suit, to the proper officer 
 
 of this Court, and is liable to punishment for 
 contempt, if he make returns to the Ordi- 
 nary. It is a nustake, however, to suppose, 
 that it is any contest between Courts, when 
 an Ordinary is retpiired to account here for 
 his management of derelict estates. When he 
 administers such an estate, he acts, not ju- 
 dicially, but ministerially. The term admin- 
 istration itself implies the ministerial char- 
 acter of his acts in such case. He is not only 
 Judge, but Clerk, of his Court: and many 
 of bis acts, l)esides the administration of es- 
 tates, are nnnisterial. In is:',?, the legisla- 
 ture, by A<t, required the solicitors to ex- 
 amine the condition of the Ordinary's office, 
 as of other district offices, and to rei)ort an- 
 nually to the Court of Common IMeas. It 
 I would be .strange if the legislature really in- 
 tended to give to such subordinate officers, 
 as the solicitors, powers of supervision, which 
 it withheld from this Court. 
 
 In tho.se ca.ses pending against the defend- 
 ant, in which decrees have not been render- 
 ed, it is impossible for him to foreknow the 
 preci.se extent of liability that may be impos- 
 ed upon him by the Court. Yet. it would 
 seem to lie fair, that, if he is retpiired to pay 
 the moneys to his successor, he should be re- 
 lieved from all trouble and expense in de- 
 fending the suits ; but that is impracticable. 
 
 JOHNSTON, Ch., and WIHTNEIi. J., con- 
 curred. 
 
 WITHEltSr J. Where nothing more is in 
 view than to enforce the transfer, re<iuired 
 by law, by a retiring Ordinary to the incum- 
 bent, I think the Common Tleas the proper 
 tribunal and competent, by a proceeding for 
 mandamus. .Saving, therefore, all doubts of 
 general jurisdiction of Equity. I concur in 
 this opinion. 
 
 ENAXS. J., absent from indisposition. 
 Decree modihed. 
 
 201
 
 IN THE COURT OF ERRORS 
 
 COLUMBIA— MAY, 1853. 
 
 All the Judges and Chancellors Present. 
 
 5 Rich. Eq. *509 
 
 ♦GABRIEL I ELDER niul Otlicis v. PAUL S. 
 FELDER and Otlicrs. 
 
 (Columbia. May, IS.")!].) 
 
 [Dcscrnf and Distiihiiiioii Cz^:'.").] 
 
 Where tiie <ii.striiiiitees of an inte.state are 
 brothers and sisteis of tiie halt'-l)lood, and chil- 
 dren of pre-deeeased brothers and sisters of the 
 wiiole blood, taUinj; under tiie atli clause of the 
 1st .section of the Act of ITIU. tliey do not take 
 equally: but the brothers and sisters of the 
 l.alf-blood take eciually. and thi' ciiildren of 
 every pre-deceased brother or sister of the whole- 
 blood take among them a share e(iual tt) the 
 ihare of a brother or sister of the half-blood. 
 
 [Ed. Note. — For other cases, see Descent and 
 D'stribution, Cent. Dig'. S 107; Dec. Dig. <©=» 
 35.] 
 
 The bill iu this case was filed in Oranj?e- 
 Imrg; and this was an appoal from the de- 
 cision of his Honor, Chancellor Wardlaw, 
 made, at Chambers, Decemlnn- '.i, 18."ili. The 
 Equity Court of Apiieals, in December, 1JS52, 
 ordered the case to this Court, where it was 
 now heard. 
 
 Bellinger, DeSaussure, for appellants, 
 Trevllle, Petigru, contra. 
 
 The opinion of the Court was delivered by 
 
 WARDLAW, Ch. John M. Felder, late of 
 ()r-:;igeburg, died intestate, leaving a large 
 estate, real and personal, to he distributed 
 according to the provisions of our Act of 
 1791. He left no wife, nor lineal descendant, 
 nor father, nor mother, nor brother or sister 
 of the whole-blood; and the distributees of 
 
 *510 
 liis estate are two brothers *and a sister of 
 the half-blood, namely, Gabriel Felder, Ed- 
 mund J. Felder, and Eliza M. I'on, wife of 
 Joseph Pou, and nine nephews and nieces, 
 the children of Samuel J. Felder, a prede- 
 ceased brother of the wh(de blootl, namely, 
 Paul S. Felder, John IL Felder, Louisa, wife 
 of A. D. Federick. Samuel J. Felder, Al- 
 fred F. Felder, Eugenia ^^., wife of John 
 Buchanan, jun.. Eliza A. Felder, Adella Feld- 
 er, and Edmund J. Felder. The i)laintilTs are 
 the brothers and sister of the half-blood, and 
 the husband of the sister ; and the defend- 
 ants are the children of the pre-deceased 
 
 brother of the whole-blond, and the husbands 
 of the married women amonz them. The 
 pleadings present various (piestions, but tlie 
 only i)oinf submitted to the Chancellor on 
 Circuit was, as to the propt)rtions in which 
 the distributees should take the e.state. He 
 decreed, pro forma. t() facilitate the parties 
 in obtaining the judgment of the Court of 
 Appeals on the question, that the brothers 
 and sister of the half-blood, and the children 
 of tlie brother of tlie whole blood, should 
 each take an e<|ual share. From this decree, 
 the plaintiffs appealed, insisting that the es- 
 tate of the intestate is to be distributed so- 
 that each of the brothers and the sister of 
 the half-blood shall take one-fourth, and the 
 diildren of the brother of the whole-blood 
 shall take the remaining fourth, to I e equally 
 divided among them. After some progress 
 in hearing the ai)peal. in the Court of Ajj- 
 peals in Equity, argument was stopped; and 
 the case was referred to the Court of Errors,, 
 at the re(iuest of two Cliancellors, wlio de- 
 .sired the aid of the Law Judges in settling: 
 a rule of property. 
 
 The determination of the <iuestion between- 
 tlie parties depends upon the construction of 
 the nth clause of the 1st section of the Act 
 of 171)1. for distributing the estates of intes- 
 tates. (5 Stat. 1(52.) The clause is in these 
 words: "If the intestate shall leave no line- 
 al descendant, father, mother, brother or sis- 
 ter of the whole blood, but shall leave a wid- 
 ow, and a brother or sister of the half-blood, 
 arid a child or children of a brother or sister 
 of the whole-blood, the widow shall take one 
 moiety of the estate, and tlie other moiety 
 
 *511 
 shall be equally di\ ided lK^*tween the broth- 
 ers and sisters of the half-lilood, and the 
 chihlren of the brothers and sisters of the 
 wlu)le-blood — The children of every deceased 
 brother or sister of the whole-blood, taking 
 among them a share e(]ual to the share of a 
 brother or sister of the half blood. But if 
 there be no brother or sister of the half- 
 blood, then a moiety of the estate .*<hall de- 
 scend to the child or children of the dece ised 
 brother or sister : And if there be no child 
 of a deceased brother or sister of the whole- 
 
 ®=3For other cases see same topic and KEY-NUMUER in all Key-Numbered Digests and Inde.xes 
 
 203
 
 311 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 blood, then the said luuiety sha.l deseeiid tot 
 the brothers and sisters of the half-bh oil." j 
 
 The Sth clause of 1st section provides, that ! 
 "if the intestate shall leave no widow, the | 
 provision for her shall go as the rest of liis 
 estate is directed to be distril uted, in the re- 
 spective clauses in which the widow is pro- 
 vided for." 
 
 This Act regulates the distribution of both 
 real aiid personal estate of intestates. Its 
 scheme is, first, to provide, by general can- 
 ons, for the distriliution of real estate, 
 (which explains the employment of the word 
 descend in the Sth clause,) and then, by a 
 general provision, to declare, that personal 
 estates shall be distributed in the same 
 manner as the canons prescribe for real es- 
 tate. Sec. 2. It is at once a .statute of de- 
 scents and a statute of distributions ; and, if 
 we advert to the mischiefs in the previous 
 state of the law, in aid of the construction 
 of the Act, we should seek them both in the 
 common law concerning descents, and in the 
 statute regulating the succession to personal- 
 ty. 22 and 23 Ch. 2, c. 10 ; 2 Stat. 523. The 
 nature of the estate, as real or personal, may 
 affect the riglits and interests of the dis- 
 tributees in some cases ; for instance, an 
 alien, although he may be next of kin, can- 
 not take the real estate, and may take the 
 personalty of an intestate. But the purpose 
 of the legislature, in the passage of the Act, 
 is not to be ascertained by exclusive refer- 
 ence to one or the other systems of law con- 
 cerning the two descriptions of estate. 
 
 By the law, as it stood at the passage of 
 the Act, those of the half-blood were entirely 
 excluded from the inheritance of real estate, 
 and were admitted, according to propinipiity, 
 
 *512 
 equally *with the whole-blood to the succes- 
 sion of personalty. Our Act making both de- 
 scriptions of estate a common fund for dis- 
 tribution, compounds as to the half-blood be- 
 tween total exclusion as to one estate, and 
 unrestricted admission as to the other, by 
 prescribing that a brother or sister of the 
 whole-blood shall exclude a brother or sister 
 of the half-blood, and by not admitting the 
 children of a deceased brother or sister of 
 the half-blood to represent tlie parent, as in 
 the case of nephews and nieces of the whole- 
 blood ; and, except in these instances, by 
 placing or leaving the whole-blood and half- 
 blood in the same category as to succession. 
 Any doubt as to the truth of the last proposi- 
 tion, which might exist upon the terms of the 
 Act, has been removed by authoritative de- 
 cisions. The cases cited to us on the con- 
 struction of the Act, are collected in a 
 note.(fl) 
 
 The distribution of the estate, which is the 
 
 *513 
 
 subject of *tlu" iircs ..( suit, is confessed- 
 ly regulated by the r>th canon above quoted. 
 It is conceded on all sides, that the plain 
 terms of the canon call the brothers of tlie 
 half-blood and the nephews of the whole- 
 1 lood to the .succession ; and tlie only dispute 
 between the parties is, as to tlie proportion 
 in which these distributees shall take the 
 estate. 
 
 The statute does not designate, in sucli 
 case, the persons to take more definitely 
 than it does the shares to be respectively 
 taken. "The children of fevery deceased 
 brother or sister of the whole-blood taking 
 among them a share etiual to the .share of a 
 brother or sister of the half-blood." It would 
 be difficult l)y any form of words, to express 
 more clearly the purpose of the legislature, 
 that each half-brother should take a share 
 as large aa the share to be distributed 
 among the children, however numerous, of a 
 deceased brother of tlie whole-blood. No 
 ambiguity in the construction of this sen- 
 tence, standing by itself, has been suggested, 
 except that the extent of the share of a half- 
 brotlier is not precisely defined. But equality 
 of shares is necessarily implied in every di- 
 rection for division, unless inequality be 
 expressly prescribed. If a testator should 
 bequeath $1,000, among A., B. and C, so 
 that B. and C. should together take as much 
 as A., undoubtedly A. would take $500, and 
 B. and C. each $250. This inference of equal- 
 ity is aided in the present instance by the 
 context of the sentence; and some remarks 
 on the context will be made in the course of 
 the discussion. 
 
 If, then, there be no ambiguity in the 
 
 (a) No representation among collaterals be- 
 yond brothers' and sisters' children, grandchild 
 <if a deceased brother of the whole-blnod exclud- 
 ed by brothers, and children of brotbers, of the 
 whole-blood. Poaug ads. Gadsden, 2 Bay, 203. 
 
 Maternal aunt excludes children of paternal 
 
 204 
 
 uncle. Shaffer and Wife v. Nail, 2 Brev, 160. 
 
 Watson v. Hill, 1 McC. 1(51, as to construc- 
 tion of the Act of 17U7. Brother, in the Act of 
 171)7, means brother of the whole-lilood. Mother 
 excludes brother of the half-blood. Law.son v. 
 I'erdriaux, 1 McC- 456. Wrenu v. Carnes, 4 
 Des. 405. 
 
 Ex parte Mays, 2 Rijh. 61. Brother of the 
 half-blood excludes ohildrcn of a pre-deceased* 
 brother of the lialf-blood. 
 
 Karwon v. Lowndes, 2 Dcs. 210. Uncle of 
 the half-blood excludes first-cousins of the whole- 
 blood. 
 
 VVitsell v. Lindor, 3 Des. 4S1. Next of kin in 
 the fifth degree exclude those in the sixth. 
 
 Guerard v. Guerard, 4 Des. 405, n. Uncle of 
 the half-blood shares etjually with uncle of the 
 whole-blood. 
 
 Porter v. Fleming, Ms. Col. 1S22. Nephews 
 of the whole-blood exclude uncles. 
 
 Brevard v. Matthews, Ms. Col. xVpril, 1824. 
 Matthews v. Matthews, Ms. Col. Dec. 1824. 
 Stent V. McLeod, 2 ^McC. Eq. 354. Nephews or 
 the whole-blood take per stirpes, and not per 
 capita. 
 
 Edwards v. Barksdale. 2 Hill, Eq. 416. Cous- 
 ins of the half the whole and of the half-blood 
 take equally as next of kin. 
 
 Hagermayer v. City Council, Riley's Eq. 117. 
 Sister of half-blood excluded by sisters and chil- 
 dren of pre-deceased sister of the whole-blood. 
 
 North V. Valk, Dud. Eq. 212. Nieces exclude 
 a grand nephew. 
 
 Payne v. Harris, 3 Strob. Eq. 37. Great- 
 grand-childreu entitled to take per stirpes.
 
 FELDER V. FELDER 
 
 *516 
 
 words of the enactment, any exito.sitiun con- 1 
 trary to the words comes under the ban of the | 
 maxim, nialedicta expositio (in:e corruuipit j 
 textuni. t'ourts have no anthority to make i 
 an interpretation of a statute contrary to 
 its express h>tter, uncontradicted liy tlie 
 context, for nothing can so well exhibit the ; 
 intention of the lef,'islature, as the words 
 they have employed. A verbis legis non est 
 recedenduni. Index aninn sermo. Edrich's 
 case, ij Kep. 119. It is danf,'erous, in any 
 ca.se, to allow scope for construction again.st 
 expres.s words; but it mif^ht be tolerated, 
 where, from the context, or perhaps aliunde, 
 the meaning of the makers is ascertained to 
 
 *514 
 *be opposed to the words, and great incon- 
 venience would follow from the litt'ral inter- 
 l)retation. In the present instance, no such 
 opposite intention of the legislature, nor such 
 consequent inconvenience, is manifested. If 
 the terms of an Act. liable to no constitution- 
 al objection, be clear and positive. Courts 
 must construe and enforce the Act. without 
 regard to the utility or wisdom of its provi- 
 sions, or to the prudence and learning of 
 those by whom it was enacted. The author- 
 ity of judicial decisions may dejiend much 
 upon the reasons assigned for the judgments; 
 the number of the Judges deciding, and their 
 reputation for ability, learning and probity; 
 and the sub.sequent recognition of the deci- 
 sions by the jtrofession: but no discrimina- 
 tion, founded upon the character of the mem- 
 bers, can be made in the authority or con- 
 struction of the Acts of different legislatures. 
 2 Des. Eq. R. 647, App. As a matter of lib- 
 eral curiosity, however, it is desirable to 
 know something of the men wbo had the 
 chief agency in the preparation and passage 
 ot a measure so important and fundamental 
 as to be recommended in the constitution 
 itself. That eminent person. Chancellor De- 
 Saussure, who has contributtul more than 
 any other, to the structure of ICquity in 
 South-Carolina, and who was a member of 
 the legislature in 1T!)1. informs us, in Stent 
 V. McLeod. that "'the statute in question was 
 drawn up with great care by the late Mr. 
 Edward Rutledge, afterwards Governor of 
 this State, whose head was as clear as his 
 breast was benevolent and his tongue elo- 
 quent, and he had the aid of the revision of 
 the bill by the late eminent lawyer and dis- 
 tinguished citizen, Gen. C. C. Pinckney, as 
 well as several other learned lawyers." 
 Among these learned lawyers, was Chancel- 
 lor DeSaussure himself, who. at the same 
 ses.sion, drew the Act concerning the Circuit 
 Courts; and probably Thomas IMni-kney, aft- 
 erwards Governor of the State, who drew the 
 Act, of that session, to establish a Court of 
 Ecpiity. (Ch. Harper's memoir of Ch. De- 
 Saussure; Ch. DeSaussures memoranda in 
 a copy of 1 Faust.) The Act was carefully 
 considered and discussed, (Journal of 1791, 
 pp. 50, 148, 203, 245,) and its general pro- 
 
 visions have been always most acceptable 
 to the people. 
 
 *515 
 ♦It is urged, that we should depart from 
 the plain import of the words above quoted, 
 because the sentence immediately preceding 
 directs that the estate "shall be equally di- 
 vided lietween the brothers and sisters of the 
 half blood and the children of the brothers 
 and sisters of the whole blood." If there be 
 repugnance between the two sentences, prin- 
 ciple wovdd re(|uire us to give effect to the 
 last expression of the will of the Legislature; 
 i>ut there is. in fact, no inconsistency. The 
 latter provision is a specitication of the mode 
 iu which tlie eijual division directed by the 
 foreg<)ing words shall be nuide. The dash 
 sei)arating the sentences has the import of 
 "so that" or "provided." "Eiiually divided" 
 does not necessarily Import division into 
 ecpml shares, and. from its collocation here, 
 must mean divided upon terms of iniuality 
 and e<iuity— the result of an "equitable dis- 
 tribution," according to the phrase of the 
 preamble. The 7th section of this .same Act. 
 providing for partition among distributees, 
 who may have uneiiual shares, gives author- 
 ity to the Commissioners to recommend spe- 
 cific assignment to one or more of the dis- 
 tributee.s, or sale of the premises, if, in their 
 opinion, the estate cannot "be fairly and 
 equally divided between the parties interest- 
 ed therein" — and surely, here, "equally di- 
 vided" imports no more than divided upon 
 terms of diual justice to the jiarties. So, also, 
 the English statute of distriltutions. of which, 
 as to i»trsonalty, our Act of 1791 is merely an 
 amendment, in the third section, provides for 
 the just and etiual distribution of the estate 
 of an intestate "amongst the wife and chil- 
 dren, or children's children" of the intestate, 
 although it is obvious that the shares might 
 be unequal. It was held by this Court, in 
 Collier v. Collier. :i Rich. Eq. 555 [55 Am. 
 Dec. G5.'}], that the direction of a testator 
 that his estate should be "etpially divi«led 
 among his heirs alKive named," was satisfied 
 by such divisicm as regarded a class of chil- 
 dren as one heir. In the more recent ca.se. 
 of Crim v. Knotts. 4 Rich. Eq. .340. the Court 
 of Appeals in Etiuity «lecided that the provi- 
 sion of a testator for etpial division among 
 the children of his two l)rothers. and for the 
 "use of their children's part or portion by 
 
 ♦516 
 the tw() *brothers for life, " was satisfied as 
 to equality, by equal division, iu the first 
 instance, between the two brothers. It may 
 be further remarked, that it is the former 
 sentence alone which provides for e<pial di- 
 vision among the half Itrothers. and thus 
 defines their shares — and this satisfactorily 
 disposes of the phrase "eiiually divided." 
 
 Again. It is urged, that the literal interiire- 
 tation we have adopted viohites the general 
 purpo.se of the Act to iiostpone the half blood 
 to the whole blood. But there is no evi- 
 
 205
 
 *516 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 dence of such purpose to postpone, except i 
 in the instances enumerated in the Act; and 
 postponement, in specific cases, raises the 
 presumption that general postponement was 
 not intended. There is a seeming anomaly in 
 excluding a half brother and admitting 
 the cliildren of a deceased brother of the 
 whole blood, jure representationis, where 
 there is a brother of the whole blood; and 
 admitting a half brother, and not enlarging 
 the interest of the children of a brother of 
 the whole blood, where there is no brother 
 of the whole blood. But it is quite as just 
 to say that the anomaly consists in excluding 
 tlie half brother, in the former instance, as 
 to say that it consists in not extending the 
 share of the nephews of tlie whole blood in 
 the latter instance. If the principle running 
 through the Act be, as Chancellor Harper 
 suggests, in Edwards v. Barksdale, to call 
 the kindred of the intestate to the succession, 
 according to propinquity, not quantity of 
 blood, the exclusion of the half brother, 
 where there is a brother of the whole blood, 
 is not symmetrical. In fact, however, neither 
 this nor any uniform principle pervades all 
 the canons. The right of kindred to inheri- 
 tance and succession in estates is not a nat- 
 ural right, but entirely of civil institution; 
 and the laws of different States differ wide- 
 ly, both as to the persons who shall take, 
 and the shares in which they shall take. The 
 Act of 1791 consists of a series of positive 
 regulations on this subject, and our province, 
 as Judges, is to expound them, and not to 
 deflect or overrule them, on conceits of sym- 
 metry and policy. It may be that, in the 
 proper arena, the wisdom of the Legislature 
 
 *517 
 in these regulations concerning *the half 
 blood could be vindicated; but, as Judge 
 Waties remarks, in Poaug ads. Gadsden, "It 
 is unnecessary to inquire into the reasons of 
 the Legislature for limiting the distribution 
 in this way — the words of the Act require 
 this construction, and we have no right to 
 look further." \Yliere the terms of an Act 
 are not free from ambiguity, it is safer to ad- 
 here to any settled construction of them, 
 which may have been long and frequently 
 acted upon, as a rule of property, than to 
 make a contrary decision upon a more exact 
 exposition of the words. An illustration is 
 furnished by our decisions upon the Registry 
 Acts. In the present instance, the maxim of 
 stare decisis has no application. The ques- 
 tion we are considering seems never before 
 to have been submitted to judicial determina- 
 tion; nor is it remembered by any member 
 of the Court, or suggested to us by counsel, 
 that any estate has been distributed upon 
 one or the other construction contended for. 
 We have been pressed, however, with opin- 
 ions, expressed by Judge Grimke, in his Law 
 of Executors, published in 1798, (i)p. 303 and 
 305,) and by Judge Brevard, in his Digest, 
 published in 1814, (vol. 1, p. 426, n.) in op- 
 
 206 
 
 position to the conclusion we have attained. 
 A nice criticism would show that the opin- 
 ions of these Judges are equivocally express- 
 ed; but, passing that by, the opinions are not 
 upon a case made, nor after argument, and 
 they are not entitled to much weight. Judge 
 Reeve, of Connecticut, in his treatise on de- 
 scents, (pp. 339, 410, 512,) prefers the view 
 we have taken. Much reliance is usually 
 placed upon the construction given to a stat- 
 ute by the Judges who lived at the time the 
 statute was passed, as, from their knowledge 
 of the circumstances in which the Legislature 
 acted, they have greater insight of the inten- 
 tion of the Legislature. But Judges Grimke 
 and Brevard express their opinions in pur- 
 suance of the ordinary rules of construction, 
 and do not profess to have, and could not 
 well have, any peculiar kno\tledge of the 
 intention of the Legislature, in the provisions 
 concerning the half blood. Now, in the ex- 
 position of a statute by the general rules of 
 construction. Judges contemporaneous with 
 the statute have no advantage whatever over 
 
 *518 
 their *successors: indeed, are more liable to 
 be misled by knowledge aliunde of the in- 
 tention of the Legislature. 
 
 It is adjudged and decreed, that the es- 
 tate of the intestate be so distributed, that 
 each of the brothers and the sister of the 
 half blood, shall take one-fourth, and the 
 children of the predeceased brother of the 
 whole blood shall take the remaining fourth, 
 to be equally divided among them; and it is 
 ordered that the Circuit decree be modified 
 accordingly. 
 
 JOHNSTON, DUNKIN and DARGAN, CO., 
 and WARDLAW, FROST, WITHERS and 
 WHITNER, JJ., concurred. 
 
 O'NEALL, J., dissenting. In this case I 
 do not agree to the conclusion of the rest 
 of the Court. 
 
 It seems to me to be plain, that the Legis- 
 lature did not intend to place the half blood 
 in advance of those who, in a previous sec- 
 tion of the same Act, had been preferred to 
 them. 
 
 The children of a brother of the whole 
 blood may, in the 5th section of the Act, be 
 considered, by an interpretation of the words 
 used by the Legislature in it, compared with 
 and construed by the words used in the 4th 
 section, as placed on an exact footing of 
 equality with the half blood, when they are 
 allowed to have parts of the inheritance. 
 
 This accords with the construction given 
 by Judges Grimke, Brevard, and the profes- 
 sion generally, till the agitation of the ques- 
 tion in this case. I am therewith content, 
 and do not wish to unsettle a received con- 
 struction of the Act, even if it were errone- 
 ous in the words. 
 
 GLOVER, J., having been of counsel, did 
 not hear the case. 
 Decree modified.
 
 APPENDIX 
 
 5 Rich. Eq. ♦SIO 
 
 *Ex parto .TAC'CJIKS L(tl IS IM).MIMQUE 
 
 \ A.NDKUS.MISSKN and l.OlISA CATII- 
 
 AKINA COLLETON. His Wife. 
 
 (Charleston. Maroli, 1S1:'J.) 
 
 I /•; '/»(■/ 1/ <©=>44<!.| 
 
 I'ftitioii for leave to tile a bill of review. 
 The pttitioiicr.s were defendants to the original 
 1)111, and were residents of a foreign country. 
 A certain deed, written in the Fren<li laiiKuaKe. 
 ou parchment, folded, hut not endnrsid, was 
 sent hy them, with other papers, to their coun- 
 sel in this State. This deed, which was most 
 material to the claim of the petitioners, was 
 overlooked hy their counsel, and not discovered 
 until after the appeal decree in the orivrinal 
 cause was delivered:— Ordered, that petitioners 
 have leave to file a bill of review. 
 
 I Ed Note.— Cited in Simpson v. Watts, 6 
 Uich E<i. ■'>^'>^' '•- Am. Dec. ;i!»*J ; Ex parte 
 Knox. 17 S. ('. 212. 
 
 For other cases, see Kciuity, Cent. Dig. § 
 10.S7; Dec. Dig. <S=>4-4(;.1 
 
 I i:<juitij <®=5447.] 
 
 "New proof, that is come to light after the 
 decree was made," is ground for granting leave 
 to tile a bill of review. 
 
 I Ed Note.— Cited in Durant v. IMiilpot, 16 
 S. C. 124: Ex parte Knox, 17 S. C. 21(1. 
 
 For other cases, see Equity. Cent. Dig. §§ 
 1001-1094; Dec. Dig. <®=»447.] 
 
 The petition in this case, which was filed 
 Deceinl)er .''.0, 1S2S, in the Circuit Court for 
 I'harleston. states, "that about the first day 
 of .Tune, 1824, a bill was filed in this honor- 
 able Court, by the firm of Davidson & Simp- 
 son, of London, merchants, against Admiral 
 Kichard Graves, the father of your petitioner, 
 Louisa Catharina, and against your iietition- 
 ers, and the other children of the said Kich- 
 ard Graves, and their husbands or represen- 
 tatives therein named, the object of which 
 bill was to set aside certain deeds made by 
 the said Kichard (iraves and wife, and by his 
 .son, Samuel Colleton Graves, and to have the 
 i'states thereby settled sold, and the proceeds 
 api)lied to the payment of a large sum, to 
 wit, the sum of £!t.(;(52.11.4, said to 1h> due 
 to the complainants by the said Kichard 
 (Jraves, and Samuel Colleton (Jraves. his son. 
 Your petitioners further shew unto your 
 Honors, that although process was by the 
 said bill prayed against your p«'titioners, 
 they were at that time absent from this 
 State, and no process was ever served ui>on 
 them: but the father of your petitioner, 
 Louisa Catharina Colleton, was at that time 
 in this State, and put in an answer for them, 
 which your petitioners are advised and al- 
 
 *520 
 lege to have been an Irregular *and unauthor- 
 
 ized act, and not sanctioned by the rules of 
 this Court: that the said bill of comidalnt 
 of David.son & Simitson set forth, amongst 
 other things, that the said Kichard Graves 
 and Louisa Carolina, his wife, (the said 
 Kichard Graves In-lng then greatly indebted,) 
 by deed bearing date 17th June, 1817, granted 
 to your petlth)ners, as a marriage portion, 
 so mu<h of their real property in South- 
 Carolina, called Colleton and Falrlawn Kar- 
 onles, as should be valued at £:5,()00 sterling, 
 and so many of their negro slaves in said 
 State as should be valued at £.'{,000 sterling 
 more. Youc i)etltioners further shew unto 
 your Honors that the said Kichard Graves, 
 by the answers so put In for himself and 
 for your petitioners, admitted the statement 
 made In the said complainant's bill, as to the 
 deeds under which your petitioners were sup- 
 posed to claim, and, without further defence, 
 submitted the consideration of their rights 
 to the judgment of the Court: that, at the 
 hearing of the cause, the deed bearing date 
 the 17th .Tune. 1817. was produced, and that, 
 upon a final decree In the Court of Appeals, 
 («) It was declared that the grant of the £3,- 
 000 sterling charged up»Mi the personal es- 
 tate of the said Kichard Graves, by the .said 
 deed, was void, because the said deed was a 
 settlement after marriage, and therefore vol- 
 untary. Your petitioners further shew unto 
 your Honors that the majority of the learn- 
 ed Judges of the said Am'i'al Court dwelt and 
 insisted much ou the circumstance that there 
 was no agreement prior to the marriage of 
 your petitioners to support the said settle- 
 ment, and on that ground alone determined 
 against your petltloner.s' right as to the £3.- 
 000 sterling charged on the negro slaves of 
 the said Kubard (Jraves: but your petition- 
 ers in fact say, that they have been greatly 
 and grievously Injured by these said proceed- 
 ings: for the said Kichard (;raves and Louisa 
 Cartdlna, his wife, previous to the marriage 
 of your petitioners, entered into a .solemn 
 agreement with your petitioners, for the set- 
 tlement of £(5.000 sterling, with Interest at 
 ;■) per cent, per annum, charged on all their 
 
 *521 
 lands *and negroes In South-Carolina, to the 
 uses of the said marriage, and the same was 
 put Into writing and signed by the said Kich- 
 ard CJraves and wife, and 8anuiel Colleton 
 (Jraves, and your i)etltloners, and was ex- 
 ecuted and delivered at Anvers, in the king- 
 dom of the Netherlands, on the fourth of 
 
 (a) See the decree. Kiley Ch. 2.32. 
 
 O=>l'or other cases tee same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes 
 
 207
 
 *o21 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 September, one thousand eight hundred and 
 sixteen. And your petitioners, in fact, say, 
 that the said agreement was an essential con- 
 dition in the treaty of the said marriage, 
 vvhicli was afterwards duly had and solemniz- 
 ed, on the second of October, one thousand 
 eight hundred and sixteen; that, by the 
 said marriage contract, in consideration of 
 the said intended marriage, the said Richard 
 Graves and wife agreed to settle and assure 
 to your petitioners the sum of six thousand 
 pounds sterling, with interest at 5 per cent., 
 to be charged on all their estates in South- 
 Carolina, as in and by the said instrument 
 of writing, in the hands of your petitioners' 
 counsel, and ready to be produced, will more 
 fully appear. Your petitioners further shew 
 unto your Honors, that when the said decree 
 was pronounced against them, the said mar- 
 riage contract was not brought to the view of 
 the Court, and that the evidence furnished 
 thereby would have entirely altered and 
 changed the said decree in this particular. 
 Y'our petitioners admit that they are not en- 
 titled to say that the instrument of writ- 
 ing hereinbefore mentioned is, as to them- 
 selves, newly discovered evidence, but they 
 submit to your Honors a case of still greater 
 hardship, inasmuch as the said evidence, al- 
 though furnished to their agents and attor- 
 nies, was not discovered nor understood until 
 after the hearing and decidin.^' of the said 
 case by the said Court of Appeals: that, 
 owing to the absence of both your petitioners, 
 (who are residents in the kingdom of the 
 Netherlands,) and the little knowledge which 
 your petitioner, Vandersmissen, hath of the 
 English law or language, your petitioners 
 were able to do little more than transmit to, 
 and place in the hands of, their agents and 
 attornies in this country, their deeds and 
 muniments. That a notarial and authenticat- 
 ed copy of their said marriage contract, in the 
 French language, was amongst the number, 
 
 *522 
 and was *handed over, as they understand, by 
 their agent, Mr. William Robertson, to Mr, 
 Prioleau, the solicitor of the said Richard 
 Graves, amongst other papers, to be used by 
 him in your petitioners' defence, but was 
 never examined by either of them, nor was 
 the existence of the said contract known to 
 either of them, nor to any person in this 
 country. That when the said answer was put 
 in for them by the said Richard Graves, he 
 took the statement of the complainants' own 
 bill, and submitted their rights, without 
 explanation, to the judgment of the Court, 
 and your petitioners' case was heard in their 
 absence, under the suppression of the most 
 important evidence. Y'our petitioners further 
 show, that when they were informed of the 
 hearing of the case, and a copy of the decree 
 of the said Appeal Court was sent to them, 
 they were greatly astonished and surprised to 
 find that stated in the evidence which they 
 knew not to be in the facts of the case, and 
 208 
 
 , seeing that the honorable Court set aside 
 their lien of £3,000, charged upon the ne- 
 I groes, merely because there was no ante- 
 I nuptial contract of that nature, your petition- 
 j ers immediately wrote to their agent, and to 
 the counsel employed by him, and directed 
 them to search for the marriage contract 
 hereinbefore mentioned ; that in making such 
 search, the said authenticated copy of the 
 said contract was found amongst the papers 
 of Mr. Prioleau, who had been employed to 
 defend their case. Your petitioners well hop- 
 ed that the complainants in the said case 
 would not insist on a decree founded in mis- 
 take, and would willingly yield them the 
 rights to which they are so clearly and just- 
 ly entitled; but your petitioners are in^ 
 formed that, as a decree has been pronounced, 
 no errors can be corrected without an appli- 
 cation to this honoi-able Court. Youi peti- 
 tioners therefore pray that they may be al- 
 lowed to take off the file the answer so put 
 in irregularly in their name, and that they 
 may be allowed to prove the marriage con- 
 tract hereinbefore mentioned, and that the 
 cause may be re-heard, and the rights of 
 your petitioners properly submitted to this 
 honorable Court ; or that they may be per- 
 
 *523 
 "^mltted to file a bill of review, for the re- 
 dress of the errors and grievances herein- 
 before stated. "'(^y) 
 
 (b) The following affidavits were relied on, to 
 sustain the petition, and were tilted therewith: 
 
 "I'ersonally appeared William Robertson, who, 
 being duly sworn, deposeth that he has acted 
 as attorney for Admiral Richard Graves for the 
 last thirty years; that in June or July, 1824, 
 he went with the said Richard Graves to Samuel 
 i'rioleau, Esq., to employ him to put in an an- 
 swer in Equity, and to act as his counsel, in the 
 case of Davidson & Simpson against the said 
 Richard (iraves and others, about that time 
 commenctHl, by bill filed in the Court of Equity 
 of this State. That, to the best of his knowl- 
 edge and recollection. Baron J. L. D. Vanders- 
 missen, son-in-law of the said Richard Graves, 
 was not at that time in this country, and did 
 not arrive here until November or December 
 of that year, (1824,) when he came here with 
 his wife and the said Richard Graves, who had 
 returned, as his deponent believes, to Europe, in 
 or about July, 1824. That the said J. L. D. 
 X'andersmissen and wife, by power of attorney, 
 executed on 8th April, 1825, appointed this de- 
 ponent and Samuel Prioleau, E'sq.. to act as his 
 attornies in this country; that he does not recol- 
 lect having received any marriage contract, or 
 copy of a marriage contract, of the said Van- 
 dersmissen and wife, from either the said 
 Richard Graves or the said Vandersmissen, nor 
 has he ever seen such marriage contract, or 
 copy thereof, until after the decree of the Appeal 
 Court in February last, in the said case of 
 Davidson & Simpson against Richard Graves 
 and others, when, upon sending a copy of thft 
 said Appeal decree to the said Vandersmissen, 
 (then in Brussels,) he received an answer from 
 him, referring to a copy, in the French language, 
 of a marriage contract, executed previous to his 
 marriage, which he states that he left in the 
 possession of this deponent ; that this deponent 
 thereupon made search amongst his papers, but 
 could find no such jjaper or contract; that he 
 then called upon Messrs. Dawson & Cruger, 
 (who had acted as attornies for Vandersmissen
 
 EX PARTE VAXDERSMISSEN 
 
 *525 
 
 •524 
 *The Chancellor sit tint,' in the Circuit 
 Court for Charleston, l»efure wiioui the peti- 
 tion was heard, refused the prayer thereof; 
 and the petitioners ap|)ealed. 
 
 Duukin, reti;,'ru, for petitioners. 
 Kinti, contra. 
 
 since the rctinnncnt of .Mr. I'liulcau from prac- 
 tice,> to HMiuest tlicm to .search amnnKst tlie 
 l)!ilicis of .Mr. rriolciiii for siith jiapcr or con- 
 tract: tliiit tlicv iiiforiiicd him tlic.v liad just 
 received letters from said N'aiidersinisst'ii, rcfcr- 
 linK to said contract, and statin;; that a copy 
 thereof had l)o n h'tt with this deponent; tliat 
 -Mr. L. Cruder, upon searciiin;;. found a coi).v of 
 said contract aniouK-st the papers of Mr. I'rio- 
 leau. winch tins deponent thinks must liave l)een 
 left with Mr. I'rioleau. ainonu'st other jiapcrs. 
 hy .said Vandersmissen, for this deponent, on iiis 
 oatli. avers that he never liefore, to tlic hest 
 of his recollection, saw the said copy, or any 
 otiier copy, of the said inarriaije contiact, wincii 
 lie found, upon exainin ition. to he a notarial 
 copy of a ma'-riaire eontra<'t. entered into at 
 Anvcrs. (or Antwerp.) on the 4tli Septend)cr. 
 INK), hetwecn Admiral Graves and wife, anc? 
 the said \'an<Ieisiuissen and wife, and Samuel 
 Colleton (haves, fur the purpose of settling 
 i(i,(M)(» sterling; upon the said X'andersiuissen and 
 wife, and hindiuj; the property of the said Ad-, 
 niiral (Jravcs, in South-Carolina, for the pay- 
 ment of the same." 
 
 "rersonally appeared I.awience K. Dawson, 
 who, beiiiK duly sworn, deposeth that he was 
 utterly i^jnorant of the existence of any con- 
 tract of nnirriage hetwecn Richard (Jravcs and 
 wife and J. L. I). Vaudersnussen and wife, (for 
 whom this deponent, to;;ether with his partner, 
 Mr. L. Cruger, have acted as attornies and solic- 
 
 *524 
 itors.) entered into *hefore the marriage of the 
 said Vandersmissen and wife, until after the 
 decision of the case hy the Court of Appeals, 
 and until letters were received from said \an- 
 tlersmiss'-n. sulise(iuently thereto, refciring to 
 such marriage settlement, and stating that a 
 copy of the same had been left with Mr. Wm. 
 Robertson: when, upon Mi-. Robertson's stating 
 tlmt he could not Hud such paper, a search was 
 made among the papers of Mr. I'rioleau, by 
 Mr. L. Cruger, and a paper in the French lan- 
 guage was f(uind by him, which is said to be a 
 notarial copy of a nnirriage contract, entered 
 into between Admiral (ira\('s and wife and said 
 N'andersmissen and wife, and datetl at Anvcrs, 
 ou the 4tli September, ISKi; but of the exist- 
 ence of said contract or document this de|)oneut 
 was utterly ignorant, nor does he recollect to 
 have ever seen the same, until after the decree 
 of the Apiical Court." 
 
 "I'ersoinilly appeared Lewis Cruy:er, who, be- 
 ing duly sworn, deposeth that, on the retirement 
 of Samuel I'rioleau, lOsij. from the practice of 
 the l,aw, he was. together with his partner. Mr. 
 Lawrence 10. Dawson. re(|Uested by .Mr. I'rioleau 
 and Mr. William Robertson, attornies of J. L. 
 I >. \andersmis.sen, to attend to his defence, in 
 the case of Davidson iV: Simiison against Ad- 
 nural (Jravcs and others, in Ilquity: that this 
 was about the sunnner or fjill of 1S1!."»; that 
 the c.-ise was then docketed, .and he tnidcrstood 
 froiii .Mr. rrioleau and .Mr. Itobertson that -Mr. 
 i'etigrii and .Mr. Dunkin wcic also eng.aged to 
 act with them for said \'andersmisseii and for 
 Admir.il (Jravcs; that, as an answer was put in 
 by Mr. I'rioleau f<u- said \'andersmissen. and 
 as the deeds I herein referred to were all ready 
 to he pi-<i(luced in Court, and none others were 
 mentioned or set forth, they never supposed that 
 any others existed, of importance to said Vnu- 
 dersnnsscn, and therefore were never put on the 
 search for any others, until after the decision 
 
 5 Rum. Eg. -14 
 
 •525 
 
 ♦In March, ls:.'0, the appeal was heard iu 
 Charleston, and the judgment of the Court 
 announced as follows: 
 
 COLCOCK, J. Tile Court are decidedly 
 and unanina>usly of opinion tnat the mo- 
 tion in this case sliould he granted. But. 
 a.s this is the first case in whicli this Court 
 has granted an application for a hill of re- 
 view, and will, of course, he referred to as 
 a precedent, it is deemed important that 
 our reasons should he ujore fully stated than 
 can now he (hjiie. The <»|dnion will therefore 
 he .sent to the (.'lerk t)f this Court, and, in the 
 meantime, the petitioners are permitted to 
 I jiroceed : if, inde«'d, any pnicee«lings should 
 I he deemed iieces.sary, after this determination 
 is known. 
 
 NOTT and .TOIINSON, J.I.. concurred. 
 
 At a subsequent day. the following opinion, 
 stating the reasons of the Court, was tiled 
 with the Clerk: 
 
 COLCOCK. J. The questions which ari.se 
 iu this case are of the lirst importance iu the 
 adndnistration of the Ciuincery jurisdiction 
 of the State. After nmch discussion, our an- 
 cestors thought proper to establish this juri.s- 
 diction, and there has heen a continued ef- 
 fort, on the part of our legislators, to cor- 
 rect, as much as possible, both the abuse of 
 power exercised hy tiiose Courts, and the de- 
 lays whicli have arisen from the mode of con- 
 ducting the business in them. lielieving. as 
 we do, that such a jurisdicrioji is es.seiitially 
 necessary to the complete and perfect admin- 
 istration of justice, we have endi-avonnl to 
 co-operate with the Legislature, to restrain 
 witiiin its proper limits this jurisdiction, and 
 so to regulate the practice as to i)rocure the 
 most speeily determination of cases, whicii 
 is cousisteiit with their mixed, diversitietl, and 
 ofteutimes comitlex character. In England, a 
 
 of the said case by the Court of Appeals, in 
 February last, when, upon sending a copy of 
 said decision to said Vandersmissen. (then iu 
 lirussels.) they received letters from said \au- 
 dcrsmis.scn and his wife, referring them to a 
 marriage contract enteivd into between Admiral 
 (Jravcs and wife and themselves, previous to 
 tluir marriage, and dated on the 4th September, 
 lMf>. at Anvcrs. (or Antweri).i in the .Nither- 
 lands, an authenticated copy of which, tlicy 
 stated, had been left by said \'aiulersmisseii in 
 the hands of William Rolicrtson. I^s.j.. of this 
 city: that this depnnent spoke to Mr. Robertson 
 on the subject, when he assured this deponent 
 that he had searched, and could find no such 
 
 paper, and that, to the hest of his r illeetion. 
 
 he had never .seen such jiaper ; this deponent 
 then, at his re(|Uest. .searched amongst the pa- 
 pers of ,Mr. I'rioleau. and found ;i paper or 
 parchment document, written in the I'reneh lan- 
 guau'c, (whicli this deponent does not read.! and 
 upon showing the same to .Mr. Robertson and 
 .NIr. I'etigru. they declared it to be a notarial 
 copy of n inarrijige contract, such as is above 
 rcfi-rred to. Tin." deponent further saith. that 
 he never, until that time, knew of the existence 
 of such ducumeut or contract." 
 
 209
 
 *525 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 Chancery suit is the business of a lifetime, 
 and not uufrequently descends, with the prop- 
 erty, to tlie second or third generation. In 
 order to prevent this dekiy liere, tlie right of 
 appeal is given to a tribunal which sits twice 
 a year, as in the ordinary cases of the Law 
 Courts, the decision of which is final and 
 conclusive of the subject — and hence it has 
 
 *526 
 beei'i ar*gued that no other re-hearing of a 
 case should be granted in this State. 
 
 That it was the intention of the Legislature 
 to prevent the delay resulting from the cir- 
 cuitous course of proceeding in England can- 
 not be doubted, but that they intended to pre- 
 clude the granting of bills of review, under 
 any circumstances, will not be conceded. In 
 words, they have not done so, and it would be 
 improper to imply such intention, in opposi- 
 tion to the essential benefit resulting from a 
 judicious exercise of the power ; nay, I may 
 say, from the absolute necessity of its exist- 
 ence. In the case of Haskell and Raoul, (1 
 McC. Eq. 22,) although we rejected the appli- 
 cation, yet the Court say: "We are not to be 
 understood as saying that a bill of review, for 
 newly discovered evidence, (subject to all the 
 conditions and regulations prescribed on those 
 occasions,) may not be granted." We are 
 then to decide whether the present applicants 
 have brougiit themselves within the reasons 
 and the rules on which such applications have 
 been granted. The case itself, out of which 
 this application has arisen, was one of much 
 importance, both as to the amount of prop- 
 erty and the principles involved in it. From 
 the situation of the parties, (most of them 
 being resident abroad,) and the complex na- 
 ture of their demands, depending, not only on 
 evidence to be obtained in the country in 
 which they lived, but on the construction of 
 deeds drawn and executed according to the 
 forms of other countries, the difficulty in the 
 decision of it was also greatly Increased. In 
 this state of things, and in the absence of 
 the applicants, the cause was heard, and an 
 important paper, on which the claim of the 
 applicants (according to the opinion of a ma- 
 jority of the Court) depended, and which was 
 in the possession of one of the former counsel, 
 was not produced at the hearing. On the 
 part of the applicants, it is contended that 
 this was not their fault; that there was no 
 negligence on their part; that their claim 
 is just, legal and equitable ; that, although 
 they may not come within the very letter of 
 Lord Bacon's rules, they are clearly within 
 the spirit and meaning of them. On the other 
 
 *527 
 *hand, it is said to be the ordinary case of 
 negligence, where the guilty party sacrifices 
 his private right to the operation of a rule, 
 indispensably necessary to the common good ; 
 that, where one has evidence which he will 
 not, or does not, produce at the trial, he is not 
 entitled to a re-hearing. 
 
 We would reluctantly depart from a rule, 
 210 
 
 the wisdom of which is admitted on all 
 hands, and one which we have so often prac- 
 tically applied ourselves. But qui hyeret in 
 litera, lueret in cortice, is a maxim which 
 must never be forgotten by those who admin- 
 ister equity. 
 
 How difficult is it so to express any rule, as 
 not to exclude cases which are evidently (up- 
 on the mere statement of them) within its 
 spirit. The facts in this case are, that the 
 papers were all sent to the counsel formerly 
 engaged in this case. The deed in question 
 was written in the French language, on parch- 
 ment, folded but not endorsed. The attorney, 
 who very laboriously and with great technical 
 precision made out the abstract of the deeds 
 on which the claim depended, overlooked this 
 deed, and it was not discovered that it was a 
 paper having any relation to the case, until 
 after the decision. The rule laid down by 
 Lord Bacon is in the following words: "No 
 decree shall be reversed, altered or explained, 
 being once under the great seal, but upon bill 
 of review; and no bill of review shall be ad- 
 mitted, except it contain either error in law, 
 appearing in the body of the decree, without 
 farther examination of matter in fact, or 
 some new matter, which hath arisen in time 
 after the decree, and not any new proof, 
 which might have been used when the decree 
 was made ; nevertheless, upon new proof that 
 is come to light after the decree was made, 
 which could not possibly have been used at 
 the time when the decree passed, a bill of 
 review may be grounded, by the special li- 
 cense of the Court, and not otherwise ;" 
 which ordinance, it is said by Lord Hard- 
 wicke, (3 Atk. 26,) has never been departed 
 from. Now, whether we take the words of 
 Lord Bacon, or those of the expositors who 
 followed him, I think the case before us is 
 embraced in the rule, "nevertheless, upon new 
 
 *528 
 *proof, that is come to light after the decree 
 was made," &c. Now, I take it, that the word 
 "new" may as much apply to the discovery of 
 the proof as to its existence: for de non appa- 
 rentibus, et non existentibus eadem est ratio. 
 Although the proof might exist, yet, if not 
 produced it could not be acted upon; and the 
 learned Chancellor could not have intended, 
 in laying down a general rule, to exclude a 
 case which, in effect, is precisely that stated 
 in the rule: and this seems to have been the 
 idea of that great man, Lord Hardwicke, for 
 he says, "it must appear that the new matter 
 has come materially and substantially to the 
 knowledge of the party, or his agents, which 
 is the same thing, since the time of the decree 
 in the former cause, or since such time as he 
 could have used it to his benefit and advan- 
 tage in the former cause." Coop. Plead. 91; 
 1 Ves. *=en. 434. 
 
 Now, it is very clear that the proof in this 
 case came to the knowledge of the agent after 
 the decree, and if the meaning is, new as to 
 discovery, which I think is clear, the case be-
 
 EX PARTE VAXDEKSMISSEX 
 
 "..•:o 
 
 fore us is within the letter of the rule. It is 
 true tliat tiie ordiniince does say, "or some 
 new matter which liath arisen in time after 
 tlie decree, and not any new prtiof wliidi 
 iiiij^lit liave been used wlien tlie decree was 
 made;" but I confess I cannot see how any 
 circumstances, wiiicli could arise after a de- 
 cree, could be made the f^round of a review. 
 I think this lan^cuaKe is obscure, and must 
 be considt'red as (jualitietl and explained liy 
 that wliicii immediately follows, an«l which I 
 have referred to: "Nevertheless, upon new 
 jiroof that is come to light after the decree 
 was made," &c. 
 
 But. if it he conceded tiint, by the rule, a 
 review cau be granted on "some new matter 
 which hath arisen after the det'ree," yet I 
 thiidc it must also be granted, that it can be 
 nbtained "upon new proof that is come to 
 light after the decree," which is the case be- 
 fore us — and for tiiis abundant authority can 
 be produced, indejiendi-nt of the rule itself. 
 In the case of I'atterson v. Slaughter, And). 
 'J.',}^, Lord Ilardwicke says, "all the bills of re- 
 view I have ever known, were of new matter, 
 
 ♦529 
 to *prove what was put in issue. Lord Kf- 
 tingliam's case was so. He claimed under an 
 old entail, and though he afterwards made 
 title under a different entail, yet the issue 
 was as clainiing under some old entail gener- 
 ally. In the pH'sent ca.se, it is not new matter 
 to prove what was put in issue, but to prove 
 a title that was not in issue: and therefore 
 the defendant could not be entitled to a bill 
 of review." 
 
 So. in the case of Taylor v. Sharp, (."? P. 
 Wms. ,37-.) the Chancellor says, "the remedy 
 by bill of review nui.st be either," &c., "or up- 
 on some new matter, as a release, receipt, 
 ike, proved to have been discovered since ;" 
 ;uid in the case of Standish v. Hadley, 2 Atk. 
 177, it was decided, that papers, in the hands 
 of a party to a former cause, though not pro- 
 duced, may be rea<l upon a bill of review, 
 not being discovered until after publication 
 
 in the cause. (1 Harrison, Ch. Pr. 1.'j7. 451.'.) 
 It is. however, contended, that this paper be- 
 ing in the possession of the former attorney, 
 cannot be said to be newly discovered testi- 
 mony, for that it was his duty to have ex- 
 amined it. and ascertained its contents. But 
 I think neither tlie rule, nor the reason of 
 the rule, go so far. A num may have posses- 
 sion of a pai»er. and not know it, and the af- 
 fidavits are satisfactory to tliat point. In 
 the most guarded exerci.se of the i»ower of re- 
 viewing <'a.ses, it is only necessary to a.scer- 
 tain that no imposition Is attem|>ted to be 
 practiced on the Court, as to the knowledge 
 of the exlsti'uce of the evidence offered. If 
 the paper was not exandned. (or was not 
 seen, being among others not thouu'ht to be 
 important,) it is a oise of newly discovered 
 evidence. It is perhaps dilHcult tn tell how it 
 was overlooked. It is often impossible for 
 one to tell how he loses a paper: for if he 
 had known the when and the how. it would 
 not have been lost. It is a case, as I con- 
 ceive too. differing widely from tliose ca.ses 
 which speak of one. having jiossession of a 
 pai)er. not being entitle<l afterwards to use 
 it. Those are cases, where the luMSon hav- 
 ing the possession, also had a full knowledge 
 of its contents, and. through a culi»able neg- 
 ligence or forgetfulness, fails to pr(Mluce 
 it, or is instigated by some motive of interest 
 
 •530 
 or gain in another *way. In this case, there 
 appears to have been all the diligence and at- 
 tention whidr couhl have i)een required, and 
 m(,)re than is ordinarily used, and it is impos- 
 sible to conceive of any motive which could 
 have induced an intentional withholding of 
 the deed ; nor is there the slightest ground 
 to suspect imposition in any way. We are, 
 therefore, unanimously of opinion, that the 
 motion should be granted. 
 
 NOTT and JOHNSON, J J., concurred. 
 Motion granted. 
 
 211
 
 IN THE COURT OF APPEALS 
 
 COLUiMBIA— MAY. 1852. 
 
 5 Rich. Eq. *53l 
 
 •LICY R. Ri:i:SE V. WYl-rrr IK^LMKS and 
 
 Otlit'is. 
 
 (Columbia. May. 1852.) 
 
 {I'arlitinn ®=>ll(i.l 
 
 rartios and tlieir privies to a rocord and 
 di'croe in partition, arc conchidrd, jjy tlio dc- 
 ( ii'c, frnm slunvin^ an est.Mti- in tlu' parties, nt 
 tlie time, j^rcattr than, or drrivt'd from a dilTcr- 
 ent .siiurcc from, that set out iu the i)roceedinKS 
 and estai»lished by the derree. 
 
 \Va\. Note. — rited in Barnes v. Cunningham, 
 P Rich. Va\. 47S. 
 
 For other ea.ses. see Partition. Cent. Dig. § 
 315; Dec. IMg. (®=>116.] 
 
 [fudiimcnt (S=p(!Sl.] 
 
 Bill in X'irginia for i)artition of testator's 
 e.^^tate, to whicii his widow was a party as plain- 
 tilT, stated tiiat the widow had renouneed all 
 her interests under tiie will, and that siie claiin- 
 o'i iter dower : and the i>rayer was, that her 
 dower !)(■ allowed her. An orch'r was made for 
 the division of the estate between the "claimants 
 nrcordiii}.' to law." and tlie ai)piiintment of eom- 
 missioners to mai<e the division. The eommis- 
 isioners made their report, aUottinsr one-third of 
 tlie negroes to tiie widow, and the decree sim|)ly 
 confirmed the rejiort. In no part of the record 
 was it stated what estate a widow claiming 
 dower was entitled to; but it appeare<I, tliat. by 
 the law of Virginia, a widow, renouncing her 
 interests under the will, and claiming dower, 
 was entitled to one-third of the estate, and, 
 where she got negroes in the division, she took 
 them for life only: — llrhl, that the Court might 
 look into the pleadings and the law to ascertain 
 wiiat estate the widow, tlie i)laintifl' in tlie l)ill, 
 was entitled to ; and that slie took, under the 
 <lecrec, an estate for life only in the negroes: — 
 llrhl, further, tliat she could not show, tliat as 
 <listriliutee of an infant dinighte!'. le;,'atee under 
 the will, who had died before the division, she 
 was entitled absolutely to a jiortion of the iirop- 
 I'rty divided— no such claim having been stated 
 iu the bill, or allowed by the decree. 
 
 [Kd. \(ite. — For other cases, see Judgment, 
 <,'ent. Dig. S VHYl; Dec. Dig. ©zsC.Sl.] 
 
 [liciiiaindcrx C=l"l 
 
 By a \'irginia statute, if a husband removes 
 from that State slaves in which his wife has 
 a life estate, without the consent of the re- 
 mainderman or r(Muaiinlress, In- or she may sue 
 for, recover and jmssess such slaves during the 
 life of the husband:— //r/'/, that, where slaves 
 were, under such circunist.-inces, removed into 
 this .State, and the husband of the remaindress 
 did not enforce the forfeiture, and many years 
 <'lapse(l br-fore the death of the tenant for life, 
 the right to enforce the forfeiture and the estate 
 in remainder, did not so coalesce as to bar. iin- 
 4ler the statute of limitations, the right of the 
 remaindress to the i)ossession of the slaves at 
 the termination of the life estate. 
 
 |Fd. Note.— Cited in Kerngood v. Davis, 121 
 S. C. U(«t. 
 
 For other cases, see Remainders, Cent. Dig. 
 § 1«>: Dec. Dig. C=3l7.| 
 
 \lhishiii\d iiud Wife C=.11.1 
 
 Bill by husband alone for the protection of 
 tlie wife's remainder in slaves, and decree there- 
 on for the proteetion of the property, held, not 
 to vest the wife's e.state in remainder in the hus- 
 band. 
 
 [Kd. Note. — For other oases, see Husband and 
 Wife, Ont. Dig. § m: Deo. Dig. G=ll.l 
 \IIiishniid ntid Wife ©=>(;{).] 
 
 Neither the husband, nor the wife, alone, 
 nor the husband and wife acting jointly, have 
 the i)owor, during the coverture, without the 
 sanction of the Court, to assign the wife's vest- 
 i^\ remainiler in slaves expertant upon the ter- 
 min.ition of a life estate therein, so as to de- 
 feat the riiiht of the wife to the remainder when 
 
 ♦532 
 it falls in. should the :.usband then *be dead. 
 Should the husband be alive when the remain- 
 der falls in, and he then have the ri;.'ht to re- 
 duce it to iiossession. his previous assignment 
 will, it .seems, hold good. 
 
 fKd. Note.— Cited in I>arev v. Beazlev, 9 Rich. 
 Imi. ILVJ: Duke v. Palmer, 10 Ri< h. K.i. ."iST: 
 Shuler v. Bull, 15 S. C. 4;{1, 4:;-_', r.V.i: Trus- 
 tees V. Bryson, .■>4 S. C. 411, V.i S. E. »il9. 
 
 For other cases, .see Husband and Wife, Cent. 
 Dig. § li!)5; Dec. Dig. CzatiO.J 
 
 [iSlarrs <©=7."1 
 
 Two deeds conveying a large number of 
 slaves, over fifty, in consideration of $1,000, 
 set aside, under all the circumstances, on the 
 ground of fraud. 
 
 jKd. Note. — Cited in Martbinson v. Mc- 
 CutchiMi. .S4 S. C. li(3(>, 66 S. E. lliO; Midland 
 Timber Co. v. Prettyman. 93 S. C. 16. 75 S. 
 K. 1(»112. 
 
 For other oases, see Slaves, Cent. Dig. §§ 20- 
 29; Dec. Dig. <@=7.] 
 
 [Slaicii <©=>5.] 
 
 The Court has jurisdiction to decree a spe- 
 cilic delivery of slaves in lavor of a remaindress 
 against persons, claiming under the life tenant, 
 who had been in possession maio' years — the life 
 tenancy having lasted fifty years. 
 
 [Ed. Note.— For other cases, see Slaves, Cent. 
 Dig. § 14; Dec. Dig. <®=55.J 
 
 liS/Joci/rc I'riforiiiaucr C='127. 1 
 
 On a bill for specili<' delivery, the defeirdant 
 may bt> compelled to account for the value of 
 such of the slaves iis have died since the tiling 
 of the bill. 
 
 I Ed. Note.— Cited in Barr v. Haseldou, 10 
 Rich. E(i. 60. 
 
 For other cases, see Specific Performance, 
 Cent. Dig. § 407; Dec. Dig. <S=3 127.1 
 
 This cause was heard at Edgelicld. June 
 sittings, 1S51, by Chancellor .lohiiston. The 
 facts, upon which the points adjudicated 
 turned, will .suOiciently appear from his de- 
 cree. 
 
 .Tohnstou. Ch. This is a case of unusual 
 'oiport.Miicc : not only from the value of the 
 
 ^=>For other cases bee same lupic aDd KEY-NL'MUEK Iu all Key-Numbered Dlgeiits aad Indexes 
 
 213
 
 *532 
 
 RICHARDSON'S EQUITY REPORTS 
 
 property in litigation, but from the questions, 
 both of fact and of law, involved in the suit. 
 
 Before considering the case, it will be 
 proper to settle v.ho are the parties to be af- 
 fected by the decree, when it is delivered. 
 
 Two of the defendants, E. B. Holloway and 
 Thomas O. Holloway, do not reside, and did 
 not, at the filing of the bill, or since, reside 
 within this State. They have not been served 
 with process, and have not appeared or an- 
 swered. They have no interest in the prop- 
 erty in the hands of the other defendants, 
 upon which the decree is to operate. Under 
 these circumstances, they are not amenable to 
 this Court ; nor can its decree affect them. 
 It is, therefore, ordered, that the order pro 
 confesso, entered against them, be rescinded, 
 as improvidently granted ; and that the bill 
 be dismissed as to these two defendants. 
 
 The plaintiff, being satisfied, by the an- 
 swers of John Middleton, Franc-is W. Burt, 
 and B. M. Talbert, that these three other 
 defendants never had possession of any of 
 the property in controversy, (upon leave ob- 
 tained for that purpose,) entered an order 
 before the hearing, that the bill be dismissed 
 as to them also. 
 
 Therefore, the decree to be delivered, 
 is not to have any effect upon the five 
 defendants before named ; but must be con- 
 strued with exclusive reference to the re- 
 maining defendants in the cause; and it is 
 so ordered and adjudged. 
 
 We now proceed to the case. 
 *533 
 
 *The plaintiff's claim is briefiy this: She 
 is the daughter of one Thomas Williams, a 
 citizen of Brunswick county, Virginia, who 
 died in January, 17S7. She avers, that in a 
 division of her father's estate, which was 
 effected, between her mother (the widow of 
 the decedent) and herself, in the county 
 court of Brunswick, about the year 1797, — 
 two female slaves, Jenny and Edi.e, w^ere as- 
 signed to the mother for her life, with re- 
 mainder to the plaintiff". That these negroes, 
 with their increase, were removed from Vir- 
 ginia to this district, (Edgefield,) about the 
 year 1799, by one Lewis Holloway, who had 
 become the second husband of her mother ; 
 and here remained until 1814, when Hollo- 
 way died. That, upon his death, the plain- 
 tiff's mother, who thus became his widow, 
 — and for wliose lif* the negroes were held, 
 — came into the possession of them. That, 
 for certain causes, which rendered such a 
 proceeding necessary for the protection of 
 her remainder in said slaves, and their in- 
 crease, the plaintiff's husband, James Reese, 
 then alive, filed a bill in the Court of Etiuity 
 for Edgefield, against Rachel Holloway, her 
 mother, and others, in the year 1819 ; to 
 which a supplemental bill, for additional 
 causes, and against additional defendants, 
 was superadded, in 1821 ; and the suit re- 
 sulted in a decree pronounced in June, 1822 ; 
 in which decree the Brunswick record of 
 
 214 
 
 partition was interpreted to have given the 
 mother only a life tenure in tlie slaves which 
 she received under it, with remainder to the 
 plaintiff ; and, upon the ground of that in- 
 terpretation, provision was made for the 
 preservation of the remainder of the plain- 
 tiff. 
 
 Tliat subsequently to that decree, and 
 while the life estate still subsisted, several 
 of the defendants, who had gotten possession 
 under Holloway, or his administrator, ob- 
 tained deeds from the plaintiff's husband, 
 (which deeds they endeavored to corroborate, 
 by obtaining other deeds from him and the 
 plaintiff conjointly,) by which certain un- 
 divided portions in the remainder expectant 
 of the plaintiff were conveyed to them. 
 These deeds, which were obtained in suc- 
 cession from 1824 to 183-, she attacks, upon 
 
 *534 
 grounds set out in the bill. Finally, *that. 
 after her husband had died, Mrs. Holloway. 
 (upon whose life the remainder was suspend- 
 ed,) died i.n 1847; and the remainder ac- 
 crued to the plaintiff. But, then, certain of 
 the defendants obtained from herself, then 
 discovert and sui juris, deeds, executed by 
 her, in June, 1848, conveying her whole re- 
 mainder to them. These deeds she assails 
 for fraud ; — and prays that they be set 
 aside ; and that the slaves be decreed to 
 her. The bill also prays general relief; and 
 was filed the 23d of April, 1849. 
 
 It will be perceived, from this summary 
 statement, that the fundamental questions in 
 the case are, (1) did Mrs. Holloway take the 
 original stock slaves, under tlie Brunswick 
 record, exclusively as parcel of the estate 
 of Thomas Wiliams, her first husband? and, 
 if so, (2) what quantity of interest did she 
 take in them? And these questions, I think, 
 must be deteitnined by that record. 
 
 If it should appear, that, in the allotment 
 to Mrs. Holloway was included, as has been 
 supposed, not only the share to which she 
 was entitled as widow of Williams, but a 
 distributive share of the share of one or 
 more of his children, who had died ; while, 
 at the same time, it appears that her share, as 
 widow, was intended to vest only for her life: 
 the only consequence of that state of her rights 
 must be to limit the plaintiff's claim. The 
 diverse interests of Mrs. Holloway, thus con- 
 founded in the property, must now be sepa- 
 rated by a partition, — in the same propor- 
 tions which they bore to each other when the 
 allotment was made ; and the confusion of 
 rights took place: — and the remainder, in 
 that part to which the plaintiff"'s right in 
 remainder properly attaches, should now be 
 decreed to her. 
 
 The two questions which I have stated, 
 must be constantly borne in mind, while we 
 examine the Virginia record, where most 
 of the facts, of which there is any evidence, 
 appear. 
 
 Thomas Williams died, as I have stated.
 
 REESE V. HOLMES 
 
 »537 
 
 and as the pleadings and exhibits in that 
 case show, in January. 1787. He had a com- 
 petent estate, consisting of land and eiglit 
 or nine negroes. A ffw days Ix'fore his 
 
 *535 
 death, (DecendH'r !.'(!. 17s<»,) he executed 'his 
 will; having, at tliat time, a wife, Kaciiel. 
 a .son, Sanuiel, and two daughters. Sally and 
 Lucy, (who is the plaintiff here.) for whom 
 he provided, in tlie will, as follows: 
 
 1. "I give and heipieath to my .son, Sam- 
 uel, the land and |tlaiitation I now live on, 
 — to him and his heirs forever. But. if he 
 dies hefore he comes to the age of 21 years, 
 my desire is. that my land l)e equally divid- 
 ed between my two daugbters, Lucy and Sal- 
 ly Williams — them and ttieir heirs, forever. 
 
 li. "Item. I give and beiiueath to my son, 
 Samuel Williams, one negro girl by the name 
 of Winney. and her increase, — to him and his 
 heirs, forever. 
 
 ."'.. "Item. I give and bequeath to my 
 daughter. Lucy, two negroes. Pat and Silla, 
 — them and their increase, — to her and her 
 heirs, forever. 
 
 4. "Item. I give and bequeatli to my 
 daughter. Sally, one negro, named .lenny, and 
 her increase. — to her and her lieirs. forever. 
 
 5. "Item. I lend unto my loving wife, Ra- 
 chel Williams, one-third of the land I now 
 live on. during her natural life, or widow- 
 hood; — one negro fellow. Will, during her 
 natural life; — a choice bed and furniture; 
 my grey horse and side-saddle ; choice cow 
 and calf; sow and pigs. And after her 
 fleath. my desire is, that what I have lent 
 my wife, be equally divided among all my 
 children, — to them and their ln'irs, forever. 
 
 6. "Item. My will and desire is. that all 
 my estate, not already disposed of, l)e equal- 
 ly divided among all my children, Samuel, 
 Lucy and Sally, — to them and their heirs, 
 forever." 
 
 One .Joseph Lyell proved the will and qual- 
 ified as executor, the 22d of .Tanuary. 17S7. 
 
 The testator's sf)n Samuel, mentioned in 
 the will, it is admitted, happened to die be- 
 fore his father; being an infant at the time, 
 and having neither wife nor issue; and i.t 
 would appear perfectly plain, (I ob.serve 
 here.) that his legacies and devi.ses, which 
 lapsed by his death, passed, by the terms of 
 the will, to his two sisters, Lucy and Sally, 
 if they both survived the father, or to which- 
 ever of the two so survived. 
 *536 
 
 *By statutory provisions of Virginia, pass- 
 ed in 17S.">, then of ftirce, it was declared 
 that the operation of wills of real estate 
 should be subject to a "saving to the widows 
 of the testators," of their dower in lands, 
 &c., "according to law:" — which shall not 
 be prejudiced by any devise thereof.(<n With 
 re.spect to testaments of personalty, it was 
 
 (a) Revised Code of 181U, by Leigh, p. 376, 
 sec. 2. 
 
 provided, (?>) that — "when any widow shall 
 not be satisfied with the provision made for 
 her by the will of her husband, she may, 
 within one year from the time of his death, 
 befon> the general Court, — or Court having 
 jurisdicticju of the probate of the will, — or 
 by deed, duly executed in the presence of 
 two or more credible witnesses, declare, that 
 she will not take, or accept, the provision 
 made for her by such will, — t)r any part 
 thereof; anil renounce all benefit which she 
 might claim by the same will: — and, there- 
 upon, such widow shall be entitled to one- 
 third part of the .'slaves whereof her hu.sband 
 died pos.se.ssed, — which she .shall hold during 
 her life, and at her death, they, and their 
 increase, shall go to such person, or per- 
 sons, to whom they would have pa.ssed and 
 goiu>," (under the will, of cour.'^e. so far as 
 its provisions might extend.) "if such decla- 
 ration had not been made. And she shall, 
 moreover, lie entitled to such sbare of his 
 other personal estate," (as contra-distin- 
 guished from his slaves,) "as if he had died 
 intestate (c) to hold to her as her absolute 
 propert.v. Rut every widow not making a 
 declaration, within the time aforesaid, sliall 
 have no more of her husl)and's slaves and 
 personal estate, than is given her by his 
 will." 
 
 It appears from a minute of Rrimswick 
 County Court, where the will had been prov- 
 ed, that, on the 24th of September, 17S7, 
 "Rachel Williams, widow of Thomas Wil- 
 liams, deceilsed. came personally into Court, 
 and declared, that she would not accept, re- 
 ceive, or take, the legacies, devised to her 
 by the will of the said Thomas Williams; 
 and renounced all benefit or advantage there- 
 from." 
 
 *537 
 
 *0n the of December following, (De- 
 cember, 1787,) she married Lewis IloUoway. 
 
 In April, 1700, Lucy Williams, (the pres- 
 ent plaintiff,) one of the two daughters of 
 the testator, married John West. 
 
 Sally Williams, the otlier daughter, died 
 unmarrieil, and intestate, during her infancy. 
 Sill' died, certainly, between the date of her 
 father's will, (December, 17N(!.) and the pro- 
 ceedings for the partition of his estate which 
 we are now examining; and which were 
 conunenced the Oth of Dtn-ember, 170.">. But 
 there is nothing from which the precise date 
 of her death, whether occurring before or 
 after that of her father, can be fixed. 
 
 On the Oth of Decemlx'r. 170.">, as I have 
 stated, llolloway and wife, and West and 
 wife, exhibited their bill against Lyell, the 
 executor, on the chancery side of Brunswick 
 County Court. 
 
 {b) Id. ;iSl, sec. 26. 
 
 {<•} A widow's sharo of nn intp.stato ostato, so 
 far as rcliitcd to pfrsoiialty, was one-third, after 
 paynirnt of dt-hts; imf, if slaves were included 
 in the thinl, she should hold them only for life. 
 (See Act of 1783; 1 Revised Code, '382, sec 
 20.) 
 
 215
 
 *537 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 Now, remember the two important ques- 
 tions to be solved by this proceeding; and 
 attend to what the proceeding contains. 
 
 It will appear, I think, from an attentive 
 consideration of its contents, that, so far 
 from purporting to distribute any share 
 which Sally may be supposed to have held 
 in the estate, — considered as such, — between 
 the mother and other daughter then in Court, 
 there is no statement, fact or circumstance, 
 disclosed in the whole case, (except that the 
 will formed an exhibit,) indicating that she 
 ever had either share or interest to be dis- 
 tributed. Her name is not mentioned, from 
 beginning to end. more than if she had never 
 existed. The estate, which is proposed as 
 the subject of division, and upon which the 
 Court is called upon to decree, is constantly 
 called the estate of Thomas \Yilliams, alone ; 
 and constantly considered and treated 
 throughout, as such; and the interests of 
 the parties in that estate, considered purely 
 as such, are set out, not in technical lan- 
 guage, but in unstudied language, which hap- 
 pens to define and discriminate them with 
 unusual distinctness. Tlie mother, as widow 
 of Thomas Williams, claims what is known 
 familiarly in Virginia as dower, or the share 
 real or personal, allowed by statute law, 
 there, to a widow, who renounces her inter- 
 ests under her husband's will. The daughter 
 claims all the balance: — that is to say, every 
 
 *538 
 right *and thing in the estate, not covered 
 by the mother's limited claim. 
 
 Now let us take up the pleadings. The 
 plaintiffs set out by stating the will and 
 death of Thomas Williams ;— the probate of 
 the will, and the assumption of the executor- 
 ship by Lyell, the defendant ; — that the plain- 
 tiffs verily believe, "that all the debts due 
 from the said estate, — of the said deceased 
 Thomas Williams." — have been settled ; — 
 that the executor refuses to come to a set- 
 tlement of "the estate ;" although (if one was 
 had) "your orators and oratrixes charge, 
 that there is no real or just reason why an 
 immediate division of said estate should not 
 take place among them, according to law." 
 The bill proceeds. "Your orator, Lewis, and 
 your oratrix, Rachel, show, further that she 
 renounced the provision made for her by the 
 decedent aforesaid, in his last will and testa- 
 ihent, and resorted to her dower, or share 
 by law, due to her of the said estate." 
 
 "That her share or proportion has not yet 
 been allotted to her — for, though a suit was 
 instituted for that purpose, yet it was not 
 duly or regularly prosecuted: — though your 
 orator, Lewis, and Rachel, are in posses- 
 sion of the land and part of the slaves, your 
 orator, John, and your oratrix. Lucy B., are 
 entitled, by law to all the residue of said 
 decedent's estate after the legal proportion 
 and share of your orator, Lewis, and his 
 wife, are duly assigned and allotted to them." 
 The bill then controverts a claim set up by 
 
 216 
 
 the executor of Luke Williams, (Thomas* 
 father,) to a negro, Adam, in possession of 
 Thomas at his death : alleging that Adam 
 had been given by Luke to Thomas: and 
 insists that the hire, which the executor, 
 Lyell, exacted from Holloway for that slave, 
 (which hire was secured by HoUoway's bond.) 
 was unjust, and unnecessary, from the state 
 of the assets. 
 
 Besides the prayers for an account by the 
 executor, and for general relief, (and others 
 not necessary to be noticed,) the plaintiffs 
 pray "that your Worships may decree, that 
 the land, slaves, and other property of the 
 estate of Thomas Williams, be legally and 
 properly divided among your orators and 
 
 '539 
 ora*trixes: that is, the dower of your ora- 
 trix, Rachel, be first assigned and allotted 
 to your orator, Lewis, in her right, — the 
 balance of the estate be delivered to your 
 orator, John, and your oratrix, Lucy." 
 
 The plaintiffs also tender what, in Virginia, 
 are called forthcoming bonds ; which are 
 there a pre-roquisite to the assent of an 
 executor ; which, of itself, (to say nothing of 
 the state of the accounts, which showed that 
 the debts were not yet settled,) shows that 
 any possession by the parties, even if It ex- 
 tended to the negroes, Edie and Jenny, (which 
 does not appear,) must have been in subordi- 
 nation to the executor, and cannot be refer- 
 red to an assent on his part. I make these 
 remarks here, to get that matter off my 
 mind ; and design them to apply to certain 
 portions of the defence hereafter to be con- 
 sidered. I am now upon the Virginia record ; 
 and I take up that proceeding again, with a 
 view to ascertain its purport. 
 
 In the answer of Lyell, the executor, put 
 in the 2.3d of August, 1796, it is incidentally 
 argued, (and I take notice of this to show 
 how every party to the record understood 
 the rights of a widow who had renounced 
 under a will, as related to slave property,) 
 that if the negro, Adam, had not been given 
 to Thomas Williams, by his deceased father, 
 then that negro belonged to the father's es- 
 tate, and Thomas was entitled to one-ninth 
 part of his value, as one of the father's dis- 
 tributees, and of this share, Thomas's wid- 
 ow could claim but one-third, (or one twen- 
 ty-seventh part of the value :) but if the ne- 
 gro was given, and became one of the slaves 
 of Thomas's e.state, the widow was entitled 
 to one-third of him; and that for life only. 
 
 On the 29th of November, 1796, (West, the 
 husband of Lucy, being then dead, as ai> 
 pears by a suggestion of that fact, at this 
 time, on the record,) the cause was heard, 
 by consent, "upon the bill, answer, and ex- 
 hibits," (and, of course, without any evi- 
 dence of facts not stated in them :) and, 
 "after argument of counsel on both sides, 
 and consideration thereof, it was decreed and 
 ordered by the Court, that the estate of the 
 said decedent (the negro, Adam, excepted)
 
 RKKSK V. HOLMES 
 
 *542 
 
 be (lividod between thv lejial thiiiuaiits, ac- 
 Conliiij,' to law, by Jonathan Tislier." &c.. 
 
 *540 
 "iiere'by appointed Commissioners for that 
 purpose, and that the said Commissioners 
 nialJe report how tliey have acted on tlds de- 
 ( ree, in order tiiat it may l»e made final." 
 On tlie ;'>Otli of Au^'ust. 17!>7, the Commis- 
 siiMiers made the followinj: report, in writ- 
 inu', dated liiitli Decemljer, 17!HJ: 
 
 "In obedience to a decree, issued from 
 the Worsliipful Court of Hrunswi<-lv. at 
 NovemJier Term, we, the Commissioners, 
 nominated in tlie said decree, have made tlie 
 division of all the negroes belon^'in;; to the 
 estate of Thomas Williams, deceased, viz: 
 In the lirst place, we laid off one-third part 
 to Rachel Ilolloway, (wife to Lewis IIol- 
 loway,) formerly relict, or widow to the said 
 Thomas Williams, deceased, to wit — Jean, 
 Edie and Will (rf)— also, one-third of the 
 hire, &c. The rest and residue of the ne- 
 groes, hire and rents of the plantation of the 
 said Thomas Williams, deceased, to Lucy 
 Reese, (wife to James Reese,(r) formerly 
 widow to John West, deceased,) and daughter 
 to the said Thomas Williams, deceased." 
 
 "On consideration whereof," says the rec- 
 ord, "it was ordered and decreed, that the 
 said report be confirmed ; and be made per- 
 petual between the parties." 
 
 And here the record cea.ses, so far as it 
 relates to the partition. 
 
 It is manifest that the property, he;-e di- 
 vided, was claimed by the parties seekim,' 
 the division, as the e-state of Tlmmas Wil- 
 liams ; and no part of it as the estate of any 
 otlier per.son ; and it was divided as such, 
 according to their claims in it. And the 
 case of Edgerton v. Muse, IXid. Eq. 179, ef- 
 fectually concludes every party to the record 
 
 taken it into her head that tlie whole of that 
 slmre lielonged. of right, to herself, and not 
 to her mother:— would she have been allowed 
 to disturb the jmlgnientV C)r. suppose she 
 had raked u|) some claim entitling her to the 
 whoh- estate. — as, for instance, a deed from 
 the father, or some right to the imiperty su- 
 perior to that <if the testator himself,— and 
 had <-ome into Court with it: averring that 
 the proiKMty, which had lieen flivided. partly 
 at her own Instance, as the estate of her fa- 
 ther, never l)elonged to him, and thus sought 
 to deprive her mother of it: woubl not the 
 Court have refused her application? Would 
 It not have regarded the n'cord in the light 
 of nnitual conveyances between tlie parties; 
 and treated it as if the daughter had con- 
 veyed so nuich property to the mother? 
 Woubl not the judgment, to which tlie daugh- 
 ter was a party, have been a good bar and 
 estopi»el. for the mother, agaln.st the new 
 claim of the daughter? Certainly. And If 
 it is a l)ar and i)rotectlon to one party, it 
 nuist be .so to all parties: and thus, as among 
 them, and all their privies, the judgment, 
 while it stands, is the exponent and measure 
 of right of all who took or claimed under it. 
 
 The priiicii>le of Edgerton v. Muse is. that 
 the parties to the record ar»» concluded by 
 the rerord. from averring that any other right 
 existed in them, or any of tliem. at the time 
 of the proceeding, than the record itself im- 
 ports. 
 
 If any relievable fraud, or mistake, enter- 
 ed into the decree, when it was pronounced, 
 the party Jiffecterl by it might have been 
 heard, if he had come, within reasonable 
 time, with a direct r>roceeding to set the judg- 
 ment a.side: but while it stands, I reiM«at. It 
 is the standard to which every party, taking 
 •542 
 
 and judgment of partition, from setting up ; under it. *nuist resort, for the measure of his 
 any right, (though one were jiroved to have ex- 
 i.sted.) lying behind that record and judgment. 
 And, then'fore, neither Mrs. Ilolloway, nor 
 the defendants, claiming under her and her 
 husband, (who was. himsell", a party.) can av- 
 er, that any part of the property allotted to 
 her was parcel of Sally's estate— or was any 
 other than Thomas Williams's e.state ; or 
 
 *541 
 that any orhcr *inci(lents attached to the 
 proi)erty received in the division, than such 
 as attached to it as Thomas William.s's. and 
 were impressed by the judgment partitioning 
 it as such. 
 
 Supi»ose that Sally's .share had licen in( lud- 
 ed in the division, (intentionally by the par- 
 ties, though the Court was not advertised of 
 their intentions, by the record, I and part, or 
 the whole, of that share had been included 
 in the allotment nnule to the mother:— and 
 suppose that, after the judgment, Lucv had 
 
 frfl Will (Hod in tho lifetime of Mrs. Ilollo- 
 way. and is not in litigition hero. 
 
 fft This is the lirst intimation of tiit'ir mar- 
 riage. 
 
 rights; and cannot be set aside, or modified, 
 •ollaterally. 
 
 Anrl while here. I may at once observe, that 
 this record silences another rather ingenious 
 argument, nuich dwelt on in the defeiuv. It 
 was said, that even conceding the record In 
 partition to havi' annexed the correl.-itlve ten- 
 ures, for life, and remainder, to the slaves al- 
 lotted to Mrs. Ilolloway: Yet it sutliclently 
 iMMieared. that before the* judgment, the par- 
 ties were in pos.se.ssion of the property parti- 
 tioned. un<ler circtimstances raising a pre- 
 stnnptiiui of assetit on the iiart of the execu- 
 tor: and thus either West. (/» the first hus- 
 band, or Ree.se. the second husband, of Lucy. 
 h;id a<tually reduced the remainder intended 
 to be created in his wife's right: and was 
 the legal owner of It. jure niariti. when it 
 was created ; and that the remainder, when 
 created, enured to him. and not to his wife. 
 
 Every fact, assumed as the foundation of 
 this argtnnent. Is mls<'onceived. It does not 
 
 (/) Wt>st. the hrst Imshand of Lucy, who join- 
 ed her in the procct-ding for partition, diod 
 pindinir the suit. Rocsr niarrii'd her pendente 
 lite, and was her husband at the partition. 
 
 217
 
 ^'^42 
 
 5 RICHARDSON'S EQL'ITY REPORTS 
 
 appear, tbat any party was in possession of 
 these negroes, Jenny and Edie. The legal 
 presnniption is, that they were in iiossession 
 of the executor. It does not appear that any 
 party in interest liad the custody of any ne- 
 groes, except upon hire, or for the mainte- 
 nance of the slaves, for which the executor 
 made compensation. It does not appear that 
 the executor had assented to the possession of 
 the property, as legacies. The contrary ap- 
 pear.s. It appears that foi-th-coniing bonds 
 had not been given, as required by law, and 
 that the debts had not been fully discharged. 
 
 But what I wish to ob.serve, in this con- 
 nection, — where I am considering the conclu- 
 siveness of the decree in partition. — is, that 
 the record concluded both West and Reese, 
 and Mrs. Holloway and Holloway, and all 
 their privies, from averring that they, or any 
 of them, had any legal vested rights in the 
 I)roperty, before the decree. Their interests 
 i-equired the decree to perfect and adjust 
 them ; and just as the decree did adjust them, 
 do they stand, and in no other position. I 
 
 *543 
 give it for my *opinion, that, if it had been 
 a fact, indubitable, that West or Reese had 
 such a possession as it contended for, and 
 was the owner of the propert.v, in law, his 
 permitting it to be treated as still unadmin- 
 istered property of Williams's estate, made it 
 so: and subjected it to all the incidents at- 
 taching to it as such. His permitting it to be 
 considered as nnpartitioned property, laid it 
 liable to all the incidents of the partition, 
 growing out of the rights of. the parties, to 
 whom the right of partition belonged. The 
 party entitled to partition with Mrs. Hollo- 
 way, as the record .said, and as the law de- 
 clared, was Lucy Reese; and no one claim- 
 ing under that record, — as both plaintiff and 
 defendants here do ; or under Reese. — as the 
 defendants, in one aspect of the case, do: — 
 can aver a title either in West, who was a 
 party to the record, or in Reese, who was a 
 party to the record and judgment. 
 
 I have said, on the authority of Edgerton 
 V. Muse, Dud. Eq. 179, that no part of the 
 property can be considered as having been al- 
 lotted to Mrs. Holloway, as distributee of her 
 daughter, Sally Williams. Perhaps it may be 
 more satisfactory to show, that there is no 
 fact, incontrovertibly established in the case, 
 which renders it necessary to conclude that 
 Sally Williams ever took any interest under 
 her father's will: — and, of course, her share, 
 as it is called, could not have been distrib- 
 uted. And if that is gotten over. — and we 
 are compelled to assume that she had a 
 share ; — then to show, either that her mother 
 took no interest in it. or, if she took an in- 
 terest, it was a greater interest than she 
 claimed, or had allotted to her. in the Vir- 
 ginia proceeding. 
 
 It will be seen, when I come to explain my- 
 self, that if Sally took a share of her father's 
 estate, and left that share, at her death, as 
 her own intestate estate, for distribution; — 
 218 
 
 it depended altogether upon the juncture of 
 time at which her death (the time of which 
 is entirely conjectural) happened, whether 
 her mother was one of her di-stributees, or 
 not. If the death occurred at a time when, 
 by the law then of force, the mother was not 
 entitled to a portion of her share, then the 
 partition of 1797, and upon the terms which 
 the plaintiff contends were impressed upon it, 
 
 *544 
 *was exactly right. If, on the other hand, 
 Sally's death occurred at a time when, by 
 force of law, her mother took an interest in 
 her estate ; the law gave her an interest, 
 which would have swelled her claims upon 
 the aggregate estate of the property left by 
 Thomas Williams, to an amount beyond what 
 she actually claimed in the Brunswick pro- 
 ceeding: — a circunastance which renders it 
 improbable that she ever took inider Sally, — 
 or she would not have stated her claim at the 
 amount at which the record shews .she did 
 state it. 
 
 I have expressed myself badly ; but what 
 I have to say may. perhaps, explain my 
 meaning. If Sally Williams happened to die 
 (as Samuel is admitted to have done) before 
 her father, all her legacies, as well as his, 
 must have fallen into the residuary clause 
 of the will, and gone to Lucy, the surviving 
 residuary legatee. This clause would have 
 carried to Lucy the wench, Jenny, who was 
 given to Sally ; and also, the wench, Edie, 
 who was not specifically disposed of, or even 
 mentioned, in the will. In that case, there- 
 fore, there is no ground of pretence, that Sal- 
 ly's death occasioned any increase to her 
 mother's interest. This was clearly perceiv- 
 ed by the defendants' counsel. They, there- 
 fore, contended, that the death of this child 
 occurred after that of her father: though, 
 there is no more evidence that she died after 
 that event than before it. 
 
 But, let it be supposed that she survived 
 her father, and thus took, under his will, not 
 only her own original legacies, but an equal 
 share with her sister in the lapsed legacies 
 of Sanmel. In this event, she left an estate, 
 at her death, to be disposed of under the law 
 applicable to intestate estates. But, as I 
 shall now proceed to show, it depended, ac- 
 cording to the law of Virginia, upon the 
 length of the interval between the death of 
 her father and her own death, whether her 
 mother took an interest in it ; and if she took 
 a share, it would so have varied her claims, 
 that she could not have stated them as she 
 did in the Brunswick record. 
 
 By the Virginia statute of 17S5,((/) it was 
 *545 
 provided, that *personal estates of intestates, 
 where there is no wife or children, "shall be- 
 distributed in the same proportions, and to- 
 the same persons, as lands are directed to 
 descend, in and by an Act of the General As- 
 semblv, entitled an Act to reduce into one the 
 
 ((/) Revised Code of 1819, p. 382, S£C. 29.
 
 REESE V. HOLMES 
 
 *647 
 
 sovornl Arts directing the course of descents." 
 
 Tlie Act tlius referred to, (and, by tlie ref 
 erence. triving <ine rule for the distril iitiini 
 of intestate realty and p«>rs<nialty.) |in>vlded 
 (/j» (so far as it is necessary to quote iti tliat 
 "■where any iiersnn, having title to any real 
 estate of inheritance, shall die intestate, as 
 to such estate, it shall de.scend and iiass in 
 parcenary, tit his kindred, male and female, 
 in the following course, that is to say: 
 
 1st. To his children, or their descendants, 
 if any there he : 
 
 2d. If there he no children, nor their de- 
 scendants, then to his father: 
 
 ."id. If there he no father, then to his moth- 
 er, brothers and sisters, and their descend- 
 ants, or such of them as there 1h'." 
 
 Thus stood the law until 17'.»'J; and if 
 Sally died while this rule of distribution was 
 of force, inasmuch as she died in her mi- 
 nority, and without leaving husband, issue, 
 or father, her share of her father's estate, 
 consisting of her own original legacies, and 
 -one half of Samuel's lapsed legacies, must 
 have been distributable under the ."id canon 
 of descent, above quoted, between her mother 
 and sister, each taking one-half. 
 
 But on the Sth December, IT'.tJ. a statute 
 was passed, entitled "au Act to reduce into 
 one the several Acts directing the course of 
 descents." which, after re-enacting the three 
 canons of the prior statute, (of the same ti- 
 tle,) which I have already stated, proceeds, 
 in its 5th section, to declare, "that where an 
 infant shall die without issue." (as Sally 
 Williams did.) "having title to any real es- 
 tate of inheritance, derived by purchase or 
 descent from the father, neither the mother 
 of such infant, nor any issue which she may 
 have by any person, other than the father 
 of such infant, shall succeed to, or enjoy, the 
 
 *546 
 same, or any part *thereof, if there be living 
 any "orother or sister of such infant, on the 
 part of the father, or any brother or sister 
 of the father, or any lineal descendant of 
 either of them ; saving, however, to such 
 mother any right of dower, which she may 
 claim in the said estate of inheritance." 
 
 This clause is followed by another, provid- 
 ing for the maternal relations, in itreference 
 to the father of the infant, when the infant's 
 estate has been acquired from the mother. 
 
 Then, on the l.'Jth of the .same month, an- 
 other statute was jtassed, in the L'Tth clause 
 «)f which it is provided, (in cases where there 
 is no wife or child.) that the whole surplus 
 of intestate personal estates, after the pay- 
 ment of debts and funeral expenses, •'shall 
 be distributed in the same proportions, an<l 
 to the .same i)ersons. as lands are directed to 
 descend in, and by," the statute of the sth, 
 just quoted. 
 
 The operation of these two statutes was 
 postponed to the 1st October, 17!>:i.(n 
 
 ill) 1(1(111 .S">"t-<!, elinp. '.)(!. soc. li, 3, 4. 
 (it Revised Codo, 14S, chap. -iH. 
 
 From this statement of the statute law of 
 Virginia, it appears manifest, that if Sally 
 Williams survived her father, and took, by 
 liunliaxe, under his will, her own legacies, 
 and half of Samuel's, and then died before 
 the 1st of October. 170.'?, her interests, under 
 his will, were eciually distributable between 
 her mother aiul sister; but if she died on or 
 after the 1st of October. 17!>:!, the sister took 
 the whole of it, in ex<lusion of the mother. 
 She may well liave <lied between the 1st of 
 October. 179."., and the institution of tlie 
 Hrunswick suit, in 171»r» — a periotl exceeding 
 two years. In that event, the state of rights, 
 as iH'tween I.jicy and her mother, in tliat par- 
 tition, would have been just what they would 
 have been hati Sally died iH'fore her father; 
 which, we have already seen, would have left 
 them precisely as they are stated in that rec- 
 j ord. 
 
 I But if Sally died after her father, and be- 
 fore the 1st of October, 17D:5, land only iu 
 that case,) her mother had an interest In 
 her share of her father's estate, but the pos- 
 
 *547 
 session of that ♦interest would not have left 
 the proportion between her rights and those 
 of Lucy, such as they both concurred in stat- 
 ing it, in the Virginia record. Thi' statement 
 there i.s. that the mother was entitled to 
 have one-third of the property assigned to 
 her, to Ix' held by her by some tenure, (the 
 nature of which tenure is here perfectly im- 
 material,) and that Lucy was to have the 
 balance, of -two-thirds. 
 
 Could that statement of claims have hoen 
 made, if it was intended to include with the 
 mother's share of the original estate, her 
 share of Sallys portion? Could it have been 
 made, if Sally had died at a time when the 
 Act of 1785 operated on the distribution of 
 her estate: casting one-half of it upon the 
 mother and the other upon Lucy'/ Impos- 
 sible. The mother must have claimed an 
 interest in far more than one-third of the 
 aggregate estate to be divided : and would 
 certaiidy have been very far from concur- 
 ring, as she did. in the statement that Lucy 
 was entitled to two-thirds. 
 
 Now. these parties certainly knew, when 
 they tiled their bill, the time of Sally Wil- 
 liams's death: and they then recollected it 
 far better than Mrs. Ilolloway did. when, in 
 her answer to the bill of isi;»-i»l. (a quarter 
 of a century aft»>rwards.) she said loosely, 
 that Sally died in her ndnority, without pre- 
 tending to specify the time: or than the 
 plaintitr did. at the tiling of her iire.sent bill, 
 (more than half a century after the event,) 
 in which she says, as loosely, that her sister 
 dii'd shortly after her father. If this is 
 evidence, it Is very loose evidence: and it is 
 the oidy evidence I can Hud, from begiiniing 
 to end. touching the time of Sally's <leath. 
 
 It is certaiidy very extraordinary that 
 Mrs. Ilolloway. to whom it was important to 
 assign a date to the death of this daughter, 
 
 219
 
 *547 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 winoh would have given herself an interest [ 
 ill her estate, did not undertake to do so in I 
 her answer, to which I have referred. Are 
 we to conjecture such a date, when she her- ! 
 self observed a perfect silence? 
 
 But if she had assigned a date advantage- 
 ous to her own interests, that would not have 
 
 *548 
 sufficed. Surely Mrs. Holloway, *or any one 
 coming in under her, (even If at liberty to 
 dispute the record, and to impregnate the 
 property she took under it with a title differ- 
 ent from that which it purports to convey.) 
 must prove the facts upon which that title 
 depends — and the proof must be reasonable 
 and convincing. There is no such proof here, 
 and every presumption must be the other 
 way : because every presumption should be 
 raised to support the record made by the par- 
 ties, and under which they claim. In that 
 record, the parties entirely disregarded Sal- 
 ly's interests in the estate, and we are to 
 suppose that they did so not without reason ; 
 and that their reason was either that she 
 never took any share of the estate, or, if she 
 did, her death cast the whole of it on her 
 surviving sister. They omitted to take notice 
 of her, or her interests, probably because, up- 
 on the state of facts which they knew to ex- 
 ist, the same legal inferences arose as if she 
 had never existed, or had never been named 
 in the will, and every thing given by it to 
 her had been given directly to Lucy : infer- 
 ences corresponding to those which the law 
 would have raised, if Sally died either be- 
 fore her father, or after September, 1793. 
 
 This brings us to consider the second ques- 
 tion, with a view to the solution of which 
 we are perusing the Virginia proceeding: to 
 wit. Did Mrs. Holloway take a life estate In 
 the negroes allotted to her? 
 
 The final order of the Court was a simple 
 confirmation of the report of the Commis- 
 sioners — and that report merely allotted the 
 property, without specifying the tenure under 
 which it was to be held. But it refers to a 
 previous decree, and purports to be in obedi- 
 ence to it : which decree declares that the 
 property Is to be divided, according to law, 
 between the claimants before the Court. 
 This decree is provisional : and intended to 
 be so. But by its terms, it (the decree of 
 November, 1796,) is to become final, and to 
 be the decree in the case, if a suitable return 
 be made by the Commissioners : a return to 
 satisfy the Court that they had made a di- 
 vision in obedience to it. A return having 
 been made which is satisfactory, the return 
 
 *549 
 is *confirmed ; and is made perpetual evi- 
 dence of the division between the parties. 
 
 This is the decree. If there is any thing 
 equivocal in it, are we to stoi) there, and 
 give it no effect lieyond those things that are 
 explicit, and clearly expressed? or aa'e we 
 at liberty to go into the record for its con- 
 struction? 
 
 220 
 
 Is there anything in Edgerton v. Muse, to 
 prevent us from resorting to tlie record for 
 the interi)i'etation of the judgment? 
 
 As I am in the liabit of saying, there are 
 different minds — minds differently constitut- 
 ed — and there will always be a difference of 
 opinion upon certain classes of subjects, and 
 I shall not be surprised if I am thought to- 
 be wrong, when I say that, in my opinion, 
 there is nothing in Edgerton v. Muse, to pre- 
 vent the pleadings' being looked into to help 
 out the Virginia decree, and that we are 
 bound to look Into them in furtherance of 
 forensic ju.stiee.(y) 
 
 Edgei'ton v. Muse says, you shall not look 
 behind the record for the purpose of raking 
 up a right of wluch the record does not treat 
 or take notice, and bringing that in opposi- 
 tion to the right involved in the record, and 
 decided by it. What is proposed here is not 
 to go behind the record, but into it: not to 
 search for a right not noticed in the record, 
 but to find what right it does notice: not to 
 look for, and bring forward, a right contra- 
 dictory to that ; but to examine the features 
 of the very right recorded in the pleadings ; 
 in order that we may not abridge it, but give 
 it that efficacy which we are to suppose the 
 decree in the case, properly vmderstood. In- 
 tended to give: — to see, in this case, what 
 the nature of those claims were, (as to which, 
 be it rememliered, thei*e was no conflict be- 
 tween the parties, but a perfect concurrence,)' 
 for the purpose of ascertaining to what law 
 it was the parties, and the Court, had ref- 
 erence, when the one asked, and the other 
 decreed, that the partition to be made should 
 be according to the law applicable to the 
 case stated and agreed on. 
 
 *550 
 
 *If the decree of 1797 had adjudged that 
 Rachel Holloway, widow of Thomas Wil- 
 liams, was enritled to that portion of his- 
 estate, the subject of partition, to which a 
 widow was by statute entitled, who had re- 
 nounced under her husband's will, and that 
 Lucy was entitled to all the balance of that 
 estate, and ordered it to be partitioned ac- 
 cordingly ; and the Commissioners had made 
 the division they did, and their return of 
 that fact had been confirmed, and made per- 
 petual: — would that have been a decree giv- 
 ing an absolute i"ight, and not a less estate, 
 to Mrs. Holloway, in the negroes allotted to 
 her? 
 
 If it would not, then this decree is sub- 
 stantially such a decree as that, if it be prop- 
 erly examined by the record to which it 
 is annexed ; if the whole of the record, and 
 not a part of it, be examined ; and if it be 
 examined with a view to support, and not to 
 defeat, the rights pre.sented and adjudicated. 
 
 Look at what the Court says. It directs 
 the allotment to be made among the claira- 
 
 (i) Henderson v. Kenner, 1 Rich. 479 et seq. ; 
 Geiger v. Geiger, Cbev. Eq. 162.
 
 RKKSE V. HOLMES 
 
 *553 
 
 ants. The refereute Is not to tlu' persons, 
 Itut to the persons as chiiniants. The allu- 
 sion is to the claims set up and stated by 
 them. Then the allotment is to 1h> made to 
 these claimants, (the owners of the.se claims 
 — which are allowed,) according to law — ac- 
 cording to the law applicalile to the claims 
 thtis allowed — with the incidents attached h.v 
 law to property to be put into their hands, 
 under such claims. 
 
 There is hardly a judirnu-nt in any Court — 
 very few in this, in which I sit— that docs 
 not lean for supjiort upon tlu' plejidin^s. 
 
 When it is neces.'^ary to plead a jtid;:ment 
 or decree, in bar, you must p> behind the 
 formal paper, so called, into the pleadinirs. 
 to see what rii,'ht has been adjiulicated. and 
 ascertain whet her it is the identical rl^,'ht 
 now, apiin stirred. 
 
 And in pleadin;; the bar of a former judg- 
 ment, the familiar practice — and the neces- 
 siiry practice — is to introduce the plea by a 
 brief, but .substantial reference, to the [ilead- 
 ings. And if the record may be resorted to, 
 and explored, for the puri)o.se of defending 
 a right held under the judgment, why may it 
 not be resorted to to qualify, limit or give 
 character to the right so heldV 
 ♦551 
 
 *I have alluded tn the decrees of this 
 Court. No man has more constantly or more 
 earnestly inculcated upon the practitioners 
 before the Court, the necessity of careful 
 and accurate pleiidings, orders and decn'cs, 
 or more vigilantly watchetl the orders passed 
 by counsel. Hut (I say it with regret) miser- 
 able would be the condition of our citizens, 
 if the indulgence I would extend to this Vir- 
 ginia decree were not allowed to our own, 
 and if bills and answers and exhibits were 
 not allowed to explain and give character to 
 decrees. 
 
 When a claim is advanced in a pleading, 
 and not controverted in any other pleading, 
 and the decree allows it, there is a tacit ref- 
 erence by the decree to the nature of the 
 claim set up and admitted, and the claim is 
 allowed, with the attributes and (lualities in- 
 cidenf to it. This is not so, if the decree ex- 
 pressly limits or modifies these incidents, or 
 annexes any condition to then). Hut it is 
 so. If the decree simply allows the claiu), and 
 especially, if. as this decree ))iay ixisslbly be 
 construed, (thougii that i)articular construc- 
 tion is doubtful.) it allows tlu> claim to be 
 enjoyed and held accordi))g to law. Thus, if 
 distributees come in for partition of land, 
 and the widow of the intestate comes in with 
 then), in an ex parte jiroceedijig. asking that 
 her dower be laid off to her; a))(l the Court 
 says, "let a division be made according to 
 law, among these parties," it n)eans h>t the 
 division lie n)ade which they have asked for 
 in their )cco)il : and if Coi))i))issioners la.v 
 otT a i)oi"tioi) to the widow, without saying 
 that they have laid it o(T as her dower, or 
 for life; and the Court conlirjos the division; 
 
 does the widow take the portion of land laid 
 off in fee? Again, if any tu)e of the distrib- 
 utees is a married wiunan, and join with her 
 husband in the application, a)id. under such 
 a decree as I have stated, Coiu)))issi(iuers lav 
 
 i off a portion to her and her husband, (a very 
 : con)n)on case,) an«l their return, stating that 
 [ fact, is confirmed : »l<»es that la))d cea.se to 
 be the wife's inheritancf, and beiiuiie the 
 pi-operty of uusband and wife, as tenant in 
 , the entirety? No. It Is still the wife's land : 
 and, as siich. though, upon a further proceed- 
 ing, it ite even sold by order of the Court, the 
 
 •552 
 money arising fron) 'the sale in Court is 
 still considered her land. n))til it be disposed 
 of ditTerently. 
 
 Now, look to the Virginia record, keeping 
 the.se ren)arks in mind, (without the benefit 
 of which, I repeat, the proce<-.lings of this 
 Court cannot be ui>held, but must work an 
 incalculable sacrifice of interests,) and it ap- 
 pears to me quite plain, that the int<'ntion of 
 what was done was to give Mrs. Ilolbfway a 
 life estate in the slaves allotted to hei-. 
 
 The ca.se stated l)y her is one that could 
 not have been stated with any other inten- 
 tion than to make a claim for life of what- 
 ever slaves were to be allotted ti> her. 
 
 She had. by her previous renunciation, re- 
 duced herself to a condition in which .she 
 could claim nothing personal under the will ; 
 and no interesr in slaves under the law, but 
 for life. And she comes in, and exjtre.ssly 
 states that she had renounced, and was in 
 that conditio)) ; and asks to have allotted to 
 her what the law, in that condition, gave 
 her. She laid the will l)efore the Court, and 
 concurred in the stateme])r, that when her 
 portion, which she called dowt'i-. (in the Vir- 
 gi))ia acceptation en)braci))g slaves,) should 
 be laid off, Lucy was entitled to every other 
 interest i)) the. estate. 
 
 Could the Court, or could she, or any jiar- 
 ty to the suit, mistake her )))eani))gV Did 
 Ij.vell, the executor, misundersta)id her? See 
 what he says in ri'lation to Adan). Her 
 chiim is not only stated as a dower or life 
 clai)u : but she prays for its allowjmce as 
 such. 
 
 I'l-ay, how, but as dower, could she be en- 
 titled to any slaves after her i-enun<-iation? 
 One negro was given to her by tb»' will, but 
 .she had lenounced the legacy. I suppose 
 that re))U))ciation reduced it to the co))ditio)) 
 of a laiKsed legacy ; and a right sprung up 
 under the residua i-y clause, the t'fTect of 
 which I have already considoed. A))d if the 
 ivnunciatioji riMluced that negro to the con- 
 dition of intestate property, a)id if the resid- 
 uary clause could not carry it. bemuse the 
 re)iu))ciatio)) occurivd after the d»'atb of tlie 
 testator, and it therefo)«> reiuijined i))testate; 
 yet, as intestate property of Thon)as WMl- 
 
 *553 
 ♦liiuns's estate — in which light it was pro- 
 posed to rllvide it — whatever rigi)t the wid- 
 
 221
 
 *5o3 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 o\v could claiiu in it was only for life. Such 
 was the law of Virginia.C/iJ 
 
 That negro haiipened to be included in 
 Mrs. Holloway's allotment by the Commis- 
 sioners. But how came Edie (who passed 
 to Lucy, as I before explained, as legatee,) 
 to be so allotted? Why, surely, the moth- 
 er's only claim upon her was a dower claim. 
 
 And so of Jenny, and upon the same prin- 
 ciples. 
 
 I am to construe the Virginia record as 
 it would have been construed the very day 
 it was completed — without regarding the 
 time that has since elapsed, or giving Mrs. 
 Holloway any advantage of her long posses- 
 sion under that record: for it means now 
 what it meant then, and the very question is, 
 whether that possession was the possession 
 of a life tenant or of an absolute owner — 
 and that resolves itself into the question, 
 was a life tenancy with remainder declared 
 by the record, or not? And, in view of that 
 proceeding, I ask what uuist have been the 
 answer of any party, or of the Court, or of 
 any other person in the world, if they had 
 been asked, as Rachel walked out of Court, 
 with the decree in her pocket, what right 
 she had got in the negroes assigned to her? 
 Why — could there have been two opinions? 
 And yet I am asked to put a construction 
 upon this judgment, repugnant to the under- 
 standing of all mankind. Is that a reason- 
 able construction? It might be a reasonable 
 construction of the decree, without a con- 
 text. But, with the pleadings as a context, 
 it would be unreasonable and sliocking. It 
 would make the proceedings of the Court 
 — intended to advance justice and adminis- 
 ter the law — in this instance — where its de- 
 cree on its face professes to apply the ex- 
 isting and well known law — the instrument 
 of trampling it under foot. It would make 
 it the instrument of fraud. What a shock- 
 ing fraud it would have been upon Lucy, 
 whom her mother had induced to concur in 
 her claim upon the slaves, by representing 
 
 *554 
 it as a claim for *life, if her mother, after 
 the decree was obtained, had instantly turn- 
 ed round upon her, and asserted an abso- 
 lute title :— with no better apology than that 
 the Court, in its decree, had not repeated 
 what she, herself, had stated in her bill? 
 
 I ask, if after Mrs. Holloway got posses- 
 sion under her assignment, she had, in some 
 short time, attempted to devastate the prop- 
 erty, or done any act inconsistent with the 
 claim of Lucy, as remaindress, and she had 
 applied to the Brunswick Court for the 
 protection of her rights in the property ; 
 is it to be supposed that that Court would 
 have told her she had none? And just as 
 that Court would have construed its decree, 
 I must construe it. 
 
 Neither the decree, nor the return of the 
 
 (A) 1 Revised Code of 1819, 382 and 29. 
 222 
 
 Connnissioners, nor the order confirming It 
 — neither of them — says that the negroes 
 allotted to Mrs. Holloway were to be held 
 absolutely — any more than they say they are 
 to be held for life. They are silent (to make 
 the most of it) as to the tenure. And yet, 
 because they are equivocal in this respect, 
 I am asked to abstain from ascertaining 
 their true meaning from the record, and to 
 arbitrarily select one, in preference to an- 
 other, tenure, where there is a perfect si- 
 lence as to both. 
 
 If I had received the written declaration 
 made by Lewis Holloway, on the 20th of 
 December, 1798, after he had reduced his 
 wife's life estate into possession, and became 
 the legal owner of it, there could be no 
 doubt, in this case, in any mind. I refer 
 to his declaration, on the eve of his remov- 
 ing the slaves from Virginia to Edgefield, 
 But, upon the proof offered, I could not ad- 
 mit the paper. I incline, however, to the 
 opinion that it must have been proved be- 
 fore Chancellor DeSaussure, who pronounc- 
 ed his decree in June. 1822, upon the bill 
 of 1819—1821. 
 
 Be that as it may, the decree in that case, 
 which binds every party before me, either 
 as parties to it, or as privies to those who 
 were parties, establishes the Virginia de- 
 cree, and gives it a partial construction. It 
 declares that whatever was taken by Mrs. 
 Holloway under it was for life ; except so 
 
 *555 
 far as any share of *Sally Williams's may 
 have been included. Whether such share 
 did enter into the allotment is not decided, 
 but reserved. 
 
 The proceeding upon which that decree 
 was given was a bill by Reese, for the pro- 
 tection of the remainder: and the decree 
 was for the preservation of the property. 
 The Chancellor says, "the proceedings ex- 
 emplified from tlie Court in Virginia, show 
 that the property in question came from the 
 estate of Mrs. Reese's father, the first hus- 
 band of Mrs. Holloway, and was allotted to 
 her for life, consequently, they" (referring 
 to Reese and wife) "have rights which will 
 come into operation at her" (Mrs. Hollo- 
 way's) "death." This is suflicient ; but the 
 Chancellor proceeds: "Again, when Mr. and 
 Mrs. Holloway wanted to migrate to the 
 South, they asked and obtained leave to re- 
 move the negroes from Virginia — which, it 
 seems, was necessary. All this goes to es- 
 tablish some rights, in remainder, in com- 
 plainants." 
 
 It was contended in that case, as in this, 
 that Sally Williams's share was included in 
 her mother's allotment: and the Cliancel- 
 lor, without investigating the fact, or its 
 precise effect, replied: let the fact be as 
 stated, still, under the decree by which Mrs. 
 Holloway received the property, a life tenure 
 was created — she took for life; and that
 
 REESE V. HOLMES 
 
 ».J5S 
 
 tenure must apply to every part of it, except 
 wliat ini^'lit lie shown to l^ive lieen derived 
 from Sally Willijinis. Take it as you will, 
 Reese and wife have interests, in remainder, 
 in some of the pro|»erty; an<l. until tlie sup- 
 posed share of Sally is separated, the whole, 
 as one Itody, nnist l)e protected. And he pro- 
 tected it ac'cordin^'ly.f/; 
 
 I say this decree estaMishcs the construc- 
 tion of the Hrunswick d«H.'ree, as to the 
 most Important (|uestion in this cas«>^ — the 
 tenure under which Mrs. IloUoway recovered 
 the slaves allotted to lu-r. Tlie point re- 
 served. I hnv<' now e.vannm'd. and have at- 
 tempted to show there is nothin>: in it. 
 
 Then, my conclusion is, that Mrs. Hollo- 
 way's interest in thi' women, .Tenny and 
 Kdie, aiKl their increase, was tiie interest of 
 
 *556 
 *a tenant for life: to wliicli was attadied 
 a remaintler expectant, in tlie plaintilT, Lucy 
 Reese. 
 
 Her right to rednci' the remaind-r into 
 posse.ssion accrued to her by the death of 
 Mrs. Ilolloway, which took place the 10th 
 of December. 1.S47: and she tiled her bill the 
 •2:ia April, 1S4!). 
 
 In my judi,'ment, her bill must be sustain- 
 ed, unless her rights have been extinguislied. 
 or barred, in some of the dilTerent ways sug- 
 gested in tlie answers, and insisted on at the 
 hearing. 
 
 In the first place, a bar is iiisist^'d upon, 
 which, it is suppo.sed, arose in consequence 
 of the removal of the negroes from Virginia, 
 in 171)S or 170!). 
 
 It was replied that such bar. if one took 
 place, was removed by the decree of IS'22: 
 and I think so. But, as the point was press- 
 ed, I shall proceed to state the bar supposed 
 to exist: and make some observations on it. 
 
 There is a Virginia statute, passed in 
 1792,(111) which went into operation the 1st 
 of October, n{)'^,(n) and is in the following 
 terms: 
 
 1st. "If any per.son or persons, possessed 
 of a life estate in any slave or slaves, shall 
 remove, or voluntarily permit to be remov- 
 ed, out of this commonwealth, such slave 
 or slaves, or any of their increa.se, without 
 the consent of him. or her, in reversion or 
 remainder, such person, or persons, .shall for- 
 feit every such slave, or slaves, and the full 
 value thereof, unto every such person, oi' 
 l»ersons. that shall have the reversion or 
 remainder thereof — any law. custom or us- 
 age," &(.'. 
 
 2d. "If an.v female, possessed as aforesaid, 
 .shall be married to a husband, who shall 
 remove, or voluntarily permit to be removed, 
 out of this conunoiiwealth, any such slave, 
 or slaves, or an.v of their increa.se. without 
 the consent of him. or her, in reversion or 
 remainder: in such case. It shall lie lawful 
 
 (/) Rolain v. Diirliy, 1 McC. E<i. 477. 
 (m) RpviPfd Code. 4:U-2, sec. 4S, 4U. 
 (n) Revised Code, 140. 
 
 ' for him. or her, in reversion, or remainder, 
 I to sue for. recover and possess such slave 
 , or slaves, so remove<l. for and during the 
 life of the said husband: — who shall, more- 
 I '557 
 
 over, be liable to the action 'of the person, 
 , or persons, entitled to the reversion, or re- 
 mainder, tliereof. for the full value of the 
 slave, or slaves, so removed." 
 
 It was contended that Ilolloways removal 
 of the slaves, in 17!»s or 17'.t'.t. was without li- 
 <ense of the remaindress. or lier husband; 
 tliat thereuiKjn a right to tlie life estate vest- 
 «*d in lier; that this connected its«'lf with 
 lier expectant right thus forming <ine estate: 
 and the permitting a pos.<ession, in opposi- 
 tifin to that estate, barred her claim here, by 
 the statute of limitations. 
 
 The case of Cole v. IfriHim. I Mid. "7. ipioted 
 in the argument of this [toint, «lecides noth- 
 ing here. That case arose upon tlie 1st 
 clause of the Virginia statute, tlu' life ten- 
 ant in tliat ca.sc being a femme sole, and sul 
 juri.s. My decision is to be made on the 2d 
 clau.se. which ci»ntemplates a life estate ex- 
 isting in a femme covert. 
 
 I suppt)se that the lici'iise rcpiired for the 
 removal nmst be tlu' license of the liusband 
 of the remaindress, if she be also covert. 
 Rut, whoever is to give it, the statute doe.s 
 not re<iuire any particular formality, by 
 which it is to be given. I take it. that he 
 who does not object (under either clause of 
 the Act) permits: and tliat, unless the suit — 
 authorized to lie brought by the person iu 
 remainder, under either clause— be institut- 
 ed, it is to "be presumed that the removal 
 was approved by him. When a removal has 
 taken place, and suit is brought to enforce 
 the penalties imposed, then — a removal being 
 unlawful unless permission lias betMi given, 
 and the permission being a |»ositive, and not 
 a negative fact — the burden must be upon 
 him who wishes to defend himself against 
 tlie conse«iuences then tlireatening him for 
 removing the property, to produce i>roof tnat 
 lie has comndtted no ofteiice — in other words, 
 he must prove a license. And it may be that 
 tlie defendants at the bar can now prove au 
 authority for the transfer of the negnn-s to 
 this State: and have now, at tlieir command, 
 evidence to establish that the life estate 
 nev»»r was forfeited — wliic-h they now saV 
 was forfeited, and became conjoined with the 
 
 •558 
 remainder — because that •as.sertiou. they sup- 
 pose, will give effect to the bar of the stat- 
 ute, and so answer their puriK>ses here. 
 
 Rut there is an »'ntire misconception of 
 the nature of the right which an unlawful 
 removal gives, under either clause in the 
 statute on that sul)ject. 
 
 The first clau.se does use the word forfeit — 
 the life tenant shall "forfeit every such 
 slave" '"unto the remainder man." Does his 
 title, as life tenant, cease, ipso facto, and eo 
 ijjstanti, upon the removal'.' Suppose the re- 
 
 223
 
 ^558 
 
 5 RICIIARUSC N'S EQUITY REPORTS 
 
 muinder man forgives the offence, and does 
 not sue, is he (the remainder man) neverthe- 
 less the owner of the life estate? or is it in 
 him, and out of the life tenant, though the 
 property he in i>ossession of the latter? Is 
 not the law notoriously otherwise? Would 
 not a conveyance from a life tenant, under 
 such circumstances, he. good to any person in 
 the world, unless avoided hy the remainder 
 man? This could not lie the case, if the life 
 tenant had no title. The fact is, that the 
 title is in the life tenant, until, by suit, it is 
 taken out of him. It is not void, but void- 
 able. And there can be no life estate title 
 In the remainder man, until he acquires it 
 by suit. The right to acquire it is a chose. 
 
 There is still less reason for insisting on 
 a forfeiture, (as transferring title.) under the 
 second clause than under the first. The first 
 does use the word ; the second does not. 
 The right of the remaindress, here, was em- 
 phatically a chose, and n()thing more. 
 
 But that is not all. If her husband had 
 sued, either with or without her, and recov- 
 ered the negroes, there are two reasons, in 
 law, why that recovery would not have merg- 
 ed the life estate and remainder: and there 
 are more reasons than these in Equity. 
 
 The tirst reason is, that the interest which 
 he could have recovered from HoUoway, un- 
 der the second clause of the forfeiture Act, 
 was not of such a nature as must, of neces- 
 sity, have united with his wife's remainder ; 
 and, as facts prove, it never could have unit- 
 ed in this case. 
 
 IloUoway was the offender: he had his 
 *559 
 wife's life estate *in him — an estate which 
 would go to his executor (for the term of 
 her life) if he should predecease her. The 
 statute says, that, for his offence he may be 
 deprived of the negroes, for and during his 
 own life, and no longer — "for and during 
 the life of the said husband." Now, if Reese 
 had sued Holloway, and recovered, and got 
 possession of the negroes, for and during 
 HoUoway's life, that would have possessed 
 him of a life estate, to be sure, but not of 
 that life estate to which his wife's remainder 
 was annexed. Upon Ilolloway's death, the 
 negroes would have reverted to his executor, 
 to be administered (as they actually were) 
 for the unexpired life of his wife: of which 
 interest the statute did not deprive him. 
 
 And, I may remark here, that as the stat- 
 ute would not have reached the property in 
 the executor's hands, it could not reach it 
 when, by administration, the executor's title 
 was transferred by him to Mrs. Holloway 
 herself. She was in of a new estate, unaf- 
 fected by the statute, being the unexpired 
 right of her husband, to which the terms of 
 the Virginia statute do not extend. And, as 
 I shall show hei'eafter, the right to take that 
 from her, by an action against herself, for 
 the mere retention of the slaves beyond the 
 limits of Virginia (if that was an offence 
 against the statute as to the removal of 
 
 224 
 
 slaves) was barred; and the right to the life 
 estate confirmed in her, as such, but no more. 
 
 The second reason is, that if Reese had got 
 in the life estate by suit, it would have been 
 no better than if he had purchased it. And 
 the case of Caplinger v. Sullivan, 2 Hump. 
 R. 5S4, shows, that where a purchase of 
 the life estate is made by the husband of a 
 remaindress, the life estate and remainder 
 do not coalesce, but continue separate es- 
 tates. If the husband die during the life 
 tenancy, his executor necessarily takes the 
 residue of that estate which is yet to run, 
 and the wife shall have the remainder against 
 the husband's executor, or the husband's as- 
 signee, if he has conveyed away the proper- 
 ty. In the case I have quoted, the husband 
 had purchased in the life estate, and had ac- 
 
 *560 
 tual *possession. He then sold and deliver- 
 ed the property (slaves) to Caplinger, for val- 
 uable consideration ; yet, at law, Ann Sulli- 
 van, the remaindress, recovered from Cap- 
 linger, upon the accrual of her remainder, 
 which happened, after her husband's death, 
 and the recovery was sustained in the Court 
 of Errors, upon very full consideration, and 
 reference to authorities. It may be object- 
 ed, that, in the case quoted, the purchase of 
 the husband was in his own right, and that 
 it may be conceded that a life estate thus 
 held by a husband, will not unite with the 
 remainder of the wife: — there is not an 
 luiion of rights in the same pei'son: — and it 
 may be contended that, if Reese had sued 
 under the forfeiture Act, and recovered, the 
 suit must have been brought, and the recov- 
 ery had, in his wife's right; and that such 
 a recovery would have united the life estate 
 and remainder in her, to which united estate 
 the statute of limitations may be applied. 
 I have great doubt whether Equity would so 
 consider the matter — whether, where the hus- 
 band, by his own act, or by an act in which, 
 (having the control of his wife by coverture,) 
 he joins her name, and gets in the life es- 
 tate, the Court would allow to such a pro- 
 ceeding an effect to destroy the wife's right 
 by survivorship, and to confer her remain- 
 der upon the husband. I think not — unless, 
 upon a proceeding in this Court, the wife 
 was examined, and a full equivalent secured 
 to her. 
 
 I may be goinj out of my way here, when 
 I refer to what has been held upon points 
 nearly analogous. In Hall v. Hugonin, (14 
 Sim. 595,) (o) where stock was standing in 
 the names of trustees, upon trust for A., for 
 life, with remainder to B., a married woman, 
 and A. assigned his life interest- to the re- 
 maindress. Sir Launcelot Shadwell, upon her 
 consent, ordered the fund to be transferred 
 to her husband. This was supposed to be an 
 important practical qualification of Purdew 
 V. Jackson, (hereafter to be mentioned,) In 
 
 (o) See Mcl^ieeu on Husb. and W., 35 Law 
 Lib. 12, 54, U4.
 
 REESE V. HOLMES 
 
 *563 
 
 which the protection due to the reversionary | 
 interests of the wife was well consitlered. j 
 *561 ! 
 
 And it *was thou«lit hy some, that the ef- 
 fect of the rulini,' in Hall v. llutronin was, 
 that if the prior interests were assii,'ned to 
 the wife, so as, in effect, to make her inter- 
 est a present one, the hnshand mi^iht then 
 reduce the fund into possession, or mijj;ht, by 
 assiiininf,' it. enable his assi),'nee to do so. 
 "The decision, however, of the Lord Chan- 
 cellor, in Whittle v. Hennins:. shews," says 
 Mr. McQueen, "that this opinion was errone- 
 ous." (/>) <!^i'i* that case, conunented on by 
 McQueen and by Hell.) 
 
 These observations are. however, unneces- 
 sary here; and are only made that they may 
 be remembered when we come to consider 
 other points of the ease, to which they have 
 a stricter application. There is no neces- 
 sity for them here, where the imiuiry relates 
 to the bar of the statute: because, manifest- 
 ly, if the position contended for be sustained, 
 and any act or onnssion of Reese be allow- 
 ed, by the Court, the effect of couplinj: the 
 life estate and remairder, so as to destroy 
 the wife's remainder, then, the very right 
 upon which she comes into Court here is ex- 
 tinjiuished. and there is no need of the stat- 
 ute of linutations to bar it. 
 
 If the laches of her husband to enforce the 
 forfeiture, had not the effect to extinguish 
 the remainder, then it subsists, and is not 
 barred. 
 
 Rut though the remarks which I have 
 made were not strictly called for here, yet, 
 if they be home in mind, they will serve to 
 meet another point in the case, yet to be 
 touched, relating to certain deeds executed 
 by Reese, and Reese and wife. 
 
 In concluding upon the statutory bar. the 
 better opinion is. that no bar can arise in 
 conse<iuence of a non-enforcement of the 
 forfeiture, even under the first clause:(f/) 
 that the statute confers a privilege, for the 
 protection of the remainder man and the 
 jireservation of his estate: — which it woidd 
 be a violation of its true intent, to turn 
 against him for the destruction of his in- 
 terests. The right to exact the forfeiture 
 
 *562 
 jnay be barred *by a failure to exact it 
 within four years. Rut the effect of that 
 bar is simply to confiinu the life estate in the 
 life tenant, leaving the relations of life 
 tenancy and remainder, and of the resjtective 
 ownt>rs, just as they were before. It wouhl 
 be very strange, if the indulgence of a re- 
 nniinder man to take away the life tenant's 
 estate, should have the effect of transferring 
 his own to him. This would be rewarding 
 him for his offence: and such a construction 
 cannot How from a true conception of the 
 spirit of the statute, which proposes to pun- 
 
 (II) Hell on Ilusb. ami W., citing Whittle V. 
 Ilcniiing. p. !>1. 
 (</i7 Dana. Ky. Rep. 272. 
 
 5RUII.EQ.— 15 
 
 ish. and not reward its violators. I leave 
 this point. 
 
 Then it is said, that the decree of 1822 
 vested the remainder of the plaintiff here, 
 in Reese, the plaintiff there. 
 
 That decree I have considered to have con- 
 cluded tlie defendants in that case; and to 
 have concluded the di'f»'ndants here, who 
 are all either the same persons, or privies to 
 them. Rut how can it <onclude this plain- 
 tiff'^ If she was no party, tlie decree does 
 not bind her, as between herself and husband. 
 If she was a party, (one of the •'complain- 
 ants" spoken of in that case,) her rii;ht wa.s 
 established and (h'llared to be in her: and, 
 as the suniving plaintiff, she is entitled to 
 the benefit of the decree, as in Kd^'erton v. 
 Muse. 
 
 We come now to consider the series of 
 deeds, execnited after the de<ree of ls'2-, and 
 between the years 1S24 and IKi — . (during 
 the existence of the life e.state.) some of them 
 liy Reese alone, and others by Reese and 
 wife. They are exhibited in the answers; 
 and my notes of evidenc»» will show that 
 some of the deeds, in which husband and 
 wife joined, were not proved. I do not think 
 it ueces.sary, however, to discrindiiate, be- 
 cause, in my opinion, none of the dewls, of 
 either class, were effectual assigmnents of 
 the jilaintiff's expectancy. 
 
 These instruments may be considered in 
 the light of: 
 
 1st. Assignments of Reese, the husband 
 alone. 
 
 2d. Assignments of Mrs. Reese, the wife, 
 alone: (though, during the coverture, she 
 made none such.) 
 
 3d. Assignments by husband and wife, con- 
 jointly. 
 
 The power of Reese to convey, must here 
 ♦563 
 arise from his ♦having reduced, jure mariti, 
 the expectancy of his wife, so as to make 
 it his, thus destroying her right of sunivor- 
 .ship: or must consist in the right of a hus- 
 band to assign such expectancy. 
 
 I have already remarked i\\nm the various 
 ways in which it has been stiggested that he 
 might have acquired a property in the ex- 
 pectancy: — such as. that he was in possession 
 when it was created : that he reduced it by 
 refusing to sue for the life estate, (that is, 
 that tile non-reduction of the life estate was 
 a reduction of both it and the remainder, 
 arising in virtu*' of an innon of the two, ef- 
 fected by not bringing them together!! and 
 lastly, that the decree of 1S22 gave him the 
 expectancy. 
 
 I do not think it necessary to add anything 
 to what I have said upon any one of these 
 sources of property in Reese, but the last — 
 the decree of 1.^22. 
 
 If Mrs. Re»'se was a party idaintiff. as I 
 have observed, that decree establishes her 
 right, claimed here. Rut if she was no par- 
 ty, and Reese, acting by himself, got to him- 
 
 2-25
 
 *563 
 
 5 RICHARDSON'S KQUITY REPORTS 
 
 self n decree, entitling liini to lier reversion- 
 aiy riglits, at a time when lie was not 
 entitled to reduce them ; will it bear ai-gu- 
 ment. that no such under handed proceeding 
 will be allowed, in this Court, (and especial- 
 ly when its decree is attempted to 
 be made the instrument,) to deprive her 
 of her right by sui-vivorship?(/) If a hus- 
 band, while his wife's hands are tied by her 
 coverture, and while she is entirely under 
 his control, be allowed, of his own accord, 
 and solely by his own act, to anticipate his 
 rights over his wife's property, and deprive 
 her of her rights in it, then the profession 
 of this Court, that it protects the rights and 
 interests of married women, is a mockery. 
 Where a husband desires to assign, or obtain 
 to himself, his wife's expectant separate es- 
 tate, or to get any privilege over it, he must 
 make her a party in Court, and she must be 
 examined, and the object of the transaction 
 must be shown to be advantageous to her ; 
 
 or it will not *be allowed. (s) So the case 
 must stand as between Reese and his wife. 
 These defendants, taking Reese's conveyance, 
 which can be supported only by the decree 
 referred to, must take notice of it, and of 
 its imperfections, and can no more insist 
 upon it, as 'against Mrs. Reese, than Reese 
 himself. 
 
 The true question is now at last reached ; 
 and it is this: 
 
 Had Reese, the husband, who died before 
 his wife's remainder fell in, any power to as- 
 sign it away for her? 
 
 A husband, if he survives the actual ac- 
 crual of his wife's expectant personal es- 
 tate, may reduce it into his possession, and 
 thereby render it his own property. 
 
 He may assign the exi»ectancy before he 
 has the power of reduction ; but the assign- 
 ment will only be good to the assignee, pro- 
 vided the husband lives until the accrual 
 happens, and is then in a situation enabling 
 him (if he had not assigned) to reduce the 
 property. His assignment will not operate 
 to transfer the property, until he comes into 
 that situation. 
 
 There are other doctrines in relation to as- 
 signments by husbands, who, after an as- 
 signment, come into a situation to reduce: 
 but it is not necessary to notice them here ; 
 becau4-;e Reese did not live until the expect- 
 ancy fell in ; and therefore never attained 
 the power of reduction. 
 
 The positions laid down are sustained by 
 the elaborately considered cases of I'urdew v, 
 Jackson, (1 Russ. 1,) and Homier v. Morton, 
 (o Russ. 65,) which were commented on and 
 approved in our own case, of Matheny v. 
 Guess, (2 Hill Eq. 66-7.) 
 
 (r) Bell on Prop, of Husb. and Wife, book 3, 
 chap. 2, sec. 3, letter g, and particularly the 
 case of Whittle v. Henniug, p. yl. 
 
 (s) Calhoun v. Calhoun, '2 Strob. Eq. 236 [49 
 Am. Dee. 667] ; s. c. Rich. Eq. Cas. 36. 
 
 226 
 
 The inefiicacy of a husband's assignment, 
 made before he acquired the right to reduce, 
 and who did not live to acquire that right, 
 is also ruled in Caplinger v. Sullivan, (2 
 Humphrey's Rep. 548,) before mentioned ; 
 in wliich the cases of Purdew v. Jackson and 
 Ilonner v. Morton were also referred to. See 
 also Browning v. Headly, (2 Robinson's Rep. 
 370-2 and passim.) 
 
 *565 
 
 *Indeed, whatever authority may, at any 
 time, be supposed to have existed to the con- 
 trary, this is the settled doctrine. What is 
 loosely said in Terry v. Brunson, 1 Rich. Eq. 
 88, is inaccurate in words, but not in mean- 
 ing. The words vested and contingent were 
 intended in the sense of accrued and yet to 
 accrue. 
 
 But it was argued that the effect of Reese's 
 deeds to the defendants, (who were in of the 
 estate.) made a case substantially the same 
 as if the life tenants had first surrendered 
 the life estate to him — (which, it was contend- 
 ed, would have produced a merger of estates, 
 and enabled him to reduce the remainder,) — 
 and had then taken his conveyance of all 
 interests in the property. 
 
 In the first place, I do not agree that their 
 surrender would have given him any right 
 extending beyond the life estate surrendered. 
 He would have become the owner of it in his 
 own right; and that right would not have 
 united with the remainder of his wife; nor 
 enabled him to anticipate the proper time for 
 its reduction. 
 
 In the next place, any contrivance, on his 
 part, to circumvent or destroy, by indirection, 
 his wife's right of survivorship, would be 
 discountenanced in this jurisdiction; and 
 any deeds obtained from him, by those whom 
 the transaction itself must have advertised of 
 the fraud, could not be allowed to confer 
 any benefit on them to her prejudice. 
 
 In the last place, the deeds, which Reese 
 executed, did not, in terms, unite the life 
 estate with the remainder. They did not pur- 
 l)ort to convey to the defendants, respectively, 
 the remainder in that part of the property in 
 their hands, respectively, but to convey to 
 each grantee one undivided sixth part of the 
 estate in remainder. 
 
 The property conveyed did not, therefore, 
 come ill apposition with the property in the 
 hands of the grantee ;— the remainder with 
 the life estate. The conveyances enabled 
 each grantee to claim the remainder, carried 
 
 *566 
 to him by his deed, out of the whole *body 
 of negroes, (indeed that was exactly his claim 
 and remedy,) or out of those in the hands of 
 others, as well as out of those in his own 
 hands; and he must do so, if what were in 
 his hands amounted to less than one-sixth of 
 the whole gang. The supposed merger, there- 
 fore, never took place; and its legal con- 
 sequences, contended for, are merely imagin- 
 ary.
 
 REESE V. HOLMES 
 
 «5(J8 
 
 All these observations apply eipially to i will survive to her against the luisbaiul's as- 
 tbuse deeds which Ueese executed with bis signuient. if be dies while those interests re- 
 wife, so far as relates to their frame, and to I main reversionary; and that the very ground 
 bis power to impart et1ica<y to thenj. These ! upon which Equity takes notice of her inter- 
 deeds are dupiicati-s of his own deeds. ; ests. in such cases, obliges the Court to pro- 
 
 This brings us to the consideration of them, j tect them against the assignment of the hus- 
 I proposed to consider them in reference to | band, though matle with her concurrence, and 
 the power of the wife abme ; and. again, in I for a valuable consideration received by the 
 reference to the power of husband and wife husband. 
 
 icting conjointly. 
 'J.. Now, if .Mrs. Ket'sc bad executed deeds 
 
 I'rof. Story, speaking of the favorable light 
 in which reversionary ehoses in action, and 
 
 by herself, wbilt. under coverture, the cases! other reversionary e(iuitable interests of the 
 of Ewiug v. Smith. :{ I>es. 417 !."» Am. Dec. 1 wife, in personal chattels, are regarded. 
 
 r..")7). .Magwood v. .lohnston. 1 Hill, E(|. L"_'8, 
 and Held v. Lamar. 1 Strol>. E(|. liT. and many 
 otlu'r cases in this State, deilare the deeds 
 would have been mdl. A marrietl woman can 
 make no contract, or conveyance, binding her 
 x'parate proiicrty, wbetlier enjoyable at the 
 ime or expettant. further than the instru- 
 iient, creating her interest in it. enables 
 her: — excepting, of course, her inheritance, 
 or her d«)wer, in lands, which she has statu- 
 1 iry authority to convey. Tlie case last men- 
 
 says :(») ••noasslgiuuent liy the husband, even 
 with her consent, and joiinng in the assign- 
 ment, will exclude her right of survivorship, 
 in such cases. The assignment is not, and 
 cannot, from the nature of the thing, amount 
 to a reduction into possession of such re- 
 versionary interests: and her consent, during 
 the coverture, to the assignment, is not an act 
 obligatory upon her." He proceeds with a re- 
 mark which may be liable to modilications: 
 
 *568 
 
 one.l. IJeid v. Lamar, attempts to show that j ,,„j „.,,i,.,, j^ j^ ,„,^ necs-sary to consider. 
 bis doctrine was not without authority iu 
 i England. i)rior to our" separation from her. 
 
 o. It would seenij upon principle, that if 
 Iceds executed by a wife, for the transfer 
 it' her separate estate, as to which .she has an 
 
 His observation is, that "in such casts, the 
 wife's consent in Court, to the transfer of 
 such reversionary interests to. or iiy her hus- 
 baufl. will not be allowed." 
 
 In Ilornsbv v. Lee. '1 Mad. Ki. the wife's 
 
 quity against the husbaixl's right of con- | i,lt^.l.^.^J ,,^^ij,„^.j ^vj,j^ ,^ ^.,„„i,,j_,^.„f ,.^versiou- 
 irol, are void: those executed by her with 
 him should be doubly void. And whatever 
 may be thought of our doctrine, as applied 
 to her separate property, not reversionary; 
 there is no doubt that the doctrine is true, 
 and upon the best authority, everywhere, in 
 relation to jiroperty reversionary at the time 
 
 *567 
 of the conveyance: *and all the cases treat 
 the deed of husband and wife, in such a 
 transaction as that, as the deed of the hus- 
 l)and alone. He shall not be allowed to 
 anticipate and destroy her expectancy, by an 
 act done by her, in conjun< tion with himself, 
 and under his legal control. He shall not, 
 1 y any contrivance, — either by accepting a 
 surrender of tlie life estate to hims.'lf, or 
 iilherwise, — obtain the advantage of an antic- 
 ipated enjoyuuMit of the remainder, or the 
 p«»wer of disixising of it for his own benelit; 
 as Ueese attempted to dispose of this. If a 
 disposition is to be made of it. it nnist be 
 
 ary interest in a fund deiiendent on the «leath 
 of her mother. Husiiaml and wife joined in 
 an assignment of it, during the mother's 
 life. The husband died in the life time of the 
 mother. On the death of the mother, a con- 
 test for the fund aro.se between the remain- 
 dress and the assignee; and the loriiier iire- 
 vailed. 
 
 I'urdew v. Jack.son, (which is cited, as 1 
 have stated, in Matheny v. Guess.) was heard 
 by the same Judge who had previously decid- 
 ed Hornsby v. Lee, and the circumstances of 
 his decision in that case rendering it proper, 
 he, on this latter occasion, v.i'i:t into a re- 
 investigation of tlie whole subject. 
 
 The case was twice argued and elabtuately 
 (onsidered, and it was ruled, that where 
 husband and wife, by deed, executed by both, 
 assign to a purchaser, for valuable considera- 
 tioti, a moiety of a share of an ascertained 
 fund, in which the wife had a vested interest 
 in renminder, expectant upon the dcah of a 
 
 lor the wife's benelit: and, to establish that, | tenant for lift' of that fund, and both the 
 she must be brought before the Court that j wile and tenant for life outlived the hus- 
 protects her interests, and exandneil : and j hand, the wift- is entitled, by right of sur- 
 then, oidy for her benelit. can the transfer vivorship, to < laim the whole of her share of 
 
 be made.(/t 
 
 The do( trine loosi*ly expressed (and in very 
 inigrammatical terms) by me, in Terry v. 
 r.runson, 1 lUch. Eq. s:{, S!), is wt'Il supported: 
 that the reversionary inten'sts of the wife 
 
 it) [Calhoun v. Calhoun] 'J Strob. E(i. l!:!t» 
 1-1!) Aim. Dec. (IHT : Id.) Rich. E(i. Cas. .'i(i: 
 \\ liittlr V. Hi'iuiiiig. cited by Ib-ll on lliisijand 
 .111(1 Wife. !ll: ami si-i- Hnm.ir v. Miillliis. 4 
 Iticli. El]. Ni>, aflirnniig Whittle v. llcnning. 
 
 the fund against the special assignee for val- 
 uable consideration. The Master of the Kolls 
 closed bis elaltorate exjiinination of author- 
 ities with the annunciation of his oiiinion, 
 that all assignments made by the husband 
 (the wife's joinder making no <1ifTerenee) '"of 
 the wife's outstanding |»ersomil chattels, 
 which are not, or cannot be, then reduced 
 
 (M) 2 Story Eq. § 1413. 
 
 221
 
 *568 
 
 5 RICHARDSON'S EQUITY REruRTS 
 
 into possession — wlietlier tlie assignment be 
 in banlvruptcy, or under tlie insolvent Acts, or 
 to trustees for tlie payment of debts, or to a 
 purchaser for valuable consideration — pass 
 only the interest which the husband lias, 
 subject to the wife's legal right by survivor- 
 ship."' 
 
 Sir Thomas Plumer's decision, in Purdew 
 *569 
 V. Jackson, was *made in February, and in 
 the May following came on the case of Hon- 
 nor V. Morton, before Lord Lyndhurst. There 
 the wife had a vested interest in remainder, 
 in the residuary estate of a testator, expect- 
 ant on the death of a tenant for life. Hus- 
 band and wife joined in assigning her inter- 
 est in a sum of stock, part of the estate, to a 
 purchaser for value. Husband died, before 
 the residuary estate fell into possession. 
 The wife, by her bill, prayed that the stock 
 be transferred to her; which was opposed 
 by the assignee. The Lord Chancellor de- 
 creed the transfer to the wife. He comment- 
 ed on the authorities ; and said there was 
 no one distinct decision at variance with the 
 decision of Sir Thomas Plumer; and conclud- 
 ed by saying — "after considering the question 
 in all its bearings, and the authorities and 
 principles, on the one side and on the other, 
 these are the reasons which lead me to the 
 conclusion, that the judgment of the Master 
 of the Rolls, in Purdew v. Jackson, was 
 right; and that the husband, dying while the 
 wife's interest continued reversionary, has 
 no power to make an assignment of property 
 of this description, which shall be valid 
 against the wife surviving." 
 
 In Watson v. Dennis, 2 Russ. 90, a case pre- 
 cisely similar to Honnor v. ]Morton, Sir John 
 Leach expressed his full assent to that case, 
 and the case of Purdew v. Jackson. 
 
 It apiJears to me, that these eases warrant 
 Mr. Bell, who has collected them, in his 
 treatise on the Law of Property of Husband 
 and Wife, (Book 3, chap. 2, sec. 3, division 
 e. — ) in the observation he makes on them: — 
 that they have conclusively established, that 
 where it has not been possible for the hus- 
 band's assignee to reduce into possession the 
 wife's expectant interest, before the hus- 
 1 and's death, entitling the reversioner to pos- 
 session, the wife's right by survivorship will 
 prevail over the assignee's right by convey- 
 ance ; and that neither the fact of the hus- 
 band's having made the assignment, (and, 
 I will add. nor the wife's joining in it,) nor 
 (if his having received the value of the chose 
 as a consideration for the assignment, will 
 
 *570 
 operate as *a virtual reduction by him. into 
 possession, so as to defeat the right by sur- 
 vivorship. 
 
 I say nothing of the Inconsiderable value 
 paid for the conveyance of a very valuable 
 and constantly increasing property, incumber- 
 ed only by the life estate of a woman who 
 had three children in 17SG, and who must 
 
 22S 
 
 have been advanced in years when these 
 conveyances were made; nor of the relation 
 of life tenant and remaindress, existing be- 
 tween the contracting parties; I rely .solely 
 on the legal incapacity of one of the grantees 
 to bind herself, and the want of legal power 
 of the other over the property ; and on that 
 ground, hold the deeds to be inethcacious. 
 
 I am not sure whether the counsel intended 
 some observations, addressed to the Court, 
 to apply to these deeds: when it was contend- 
 ed that the transaction should be sustained 
 as a compromise. To say nothing of there 
 being no distinct transaction intended to com- 
 pose the whole right, but a mere succession of 
 very advantageous purchases, from an im- 
 provident husband, in derogation of his wife's 
 rights — (rights peculiarly favored in this 
 Court, which, in creating, certainly intended 
 to protect them) — it would be very absurd, 
 if the Court should hold the husband to have 
 more power to compromise away his wife's 
 property, than to make a bona fide sale of it ; 
 or that the wife had more capacity to assent 
 to the one mode of depriving herself of it 
 than to the other. 
 
 All the different grounds which I have 
 examined having failed, in my opinion, to bar 
 or extinguish the plaintiffs right by survivor- 
 ship: her remainder accrued to her on the 
 death of her mother in December, 1847, and 
 she became the owner of the slaves. 
 
 She was then discovert, and so remains. 
 But then a transaction took place, which is 
 supposed to have transferred all her rights 
 from her to Wyett Holmes ai'd John Jones, 
 two of the defendants. 
 
 Un the 9tli of June, 1S4S, these parties 
 visited the plaintiff, them living in great 
 destitution, in the skirts of Columbus, Geor- 
 
 *571 
 *gia, and obtained a deed conveying to them 
 the whole stock of slaves, "which slaves." it 
 is recited, "were in the hands of Rachel IIol- 
 loway, as a life estate ; and also have been 
 the subject of litigation in the Court of 
 Equity, ( r ) in Edgefield district, S. C, be- 
 tween James Reese, now deceased, against 
 Rachel Holloway, now deceased, and others, 
 and by having reference to the Commission- 
 er's office, it will fully appear, that said writ 
 was tiled the 1st Monday in June, 1821." 
 The conveyance was for a consideration of 
 one thousand, (accidentally omitting the word 
 dollars.) It appears that the thousand dol- 
 lars consisted of $500 paid by John Jones in 
 cash, and Holmes' note (as good as cash) 
 for .$500. It contains full warranties. 
 
 This deed is exhibited in the answers. 
 
 On the 19th of the same month, (June, 
 1S4S,) Holmes returned again, and got an- 
 other deed to himself and Jones, more perfect- 
 ly reciting the consideration, and more per- 
 fectly embracing, with the twenty negroes, 
 
 (r) At which time they amounted tu twenty. 
 The twenty, with the increase from the date 
 of that suit, were conveyed iu this deed.
 
 REESE V. HOLMES 
 
 •574 
 
 for wliicli suit was brought in isi'l. their in-' comlition explained to lier? Did the life- 
 crease, -whether heret()f<)n' i»orn. or here- tenants <iflrer her an unconditional surrender 
 after to he horn." In referrin;; to the .suit of itV Was siie aware of the invalidity of 
 of iMil. it is described to Inive heen hrou^lit her iinshand's deeds or her ownV Were those 
 "by tlie said James Ueese. ami nie. tlie said ileeds ^'iven up. and she told that she was 
 Lucy r.. Keese, as plaintltTs." It also con- free? Was she told that, as -widow of Jaiues 
 tains full warranties, and in all respei-ts ex- 1 Heese," who is statt'd in the tirst <b*ed to have 
 cei»t those named, has the same le;.'al effect | brou;.'ht the suit, she was not n-strieted to a 
 as the previous deed of tlie "Jth of the same widow's ri;;hts in the property, treatiii}; it as 
 month, and is exhildted. j his. under the decree of isi'i'; ,,r wlmt ipian- 
 
 The stock of ne;rroes thus sold were twenty ' *573 
 
 in isijl. with the increase of the twenty- jtity of ri;;ht she took und»'r that 'judunu'iit. 
 .seven years which had intervt-ned; and from she bein;; considered a party to it, as stated 
 the answers, must liave been between 'A) and in the sentnd deedV Did not the reference to 
 100. more apiiroximatiiifr the latter nundter. ' tlie suit serve to bewihler. instead of enliv,'ht- 
 Now. if Mrs. Heese had, without any other' en her. in regard to her ritrhtsV She was 
 circiimstances. sold such a property as that : ciititb-d to the whole remainder, and the 
 for ."<l.(MMi. the inference that she was el- ! <leeds to which the defendants t»'iiaciously 
 tlier imoeciJe, or imposed upon, would be too ' helil on. were no incumlirances on her riuht : 
 strong, in any rijrhtly instituted mind, to nnd if they did not wish to take advantage 
 permit the tran.saction to pass off without the of her. why tlitl th»'y still raise a pretension 
 dcejiest reprehension, unless defended and under those deeds? If they wished to buy 
 explained by plemiry — very i)lenary — proof her remainder, it would have been oin-n and 
 of fairness and open (h-alin^'. I am not in- 1 fair dealiii;; to call it what it was. and let 
 ♦572 I her umlerstand that It was her remainder 
 
 sensible to the value of *coiitracts. I am t^'iJit she was selliiif,' and coiiveyinu away. 
 not less sensible of the sanctity of projierty under the specious but dece|)tive descrii»tion 
 rifihts. This Court, aliove all things, esteems of "all her rij;lit. title and interest." 
 fair dealin.ir. It will not allow a contract to j Au'ain. I cannot lu'lieve that, if the deeds 
 be impu^'iied if fair: nor allow it to stand; were read to her. she heard, at least so us 
 if unfair. Nor will it allow any person to be' to i..,der.>«tand them. As to the fact of her 
 stripi'cd of his rights, in his juoperty. by a | mother's death, if it was stated before the 
 contract, juima facie unconscientious, like execution of the instrument, it is clear to 
 this — unless it be proved to have been the my mind she cannot have heard it, or did 
 inircly voluntary act of the party airainst not understand its effects; if she had this 
 whom ir operates, delilieratcly performed up- information and knowlr<lfre. her <«)mluct is 
 on full information, with a full understandini,' unac( ountable. Why should she. in her ne- 
 of his rii,'hts, and without iiiisrepresentation, cessitous condition, voluntarily uive her 
 concealment, or other circumstances tcndint,' property away from herself and children, to 
 to surjirise him. impose upon him. or take i stranj;«'rs, to whom there is no reason to be- 
 advantai;e of any mistake under which he lieve she sustained any friendly K-lationsV 
 may lalxir. I Then, again, as to the second de^-d, whi< h. 
 
 Now. I think, the defendants who took I it is said, was a fair conlirimition of her 
 these deeds, have not upheld them by the' tirst: it must be observed, that a conlirina- 
 clear and indubitable proof of fairness, re- tion is not efftntual until a party is relea.sed 
 quired in such cases cases where the trans- from prior obligations, and maile fn'e to 
 action itself, stands. i)iinia facie. «-olored with confirm or not conlirm. The tirst deed pur- 
 the imputation of fraud. j ported to be t-llectual and binding on her; 
 
 Hut. when I consider the condition of the' was that given back? 
 woniiiii — destitute, ignorant. <le;if. bed-ridden.; I have .said nothing of the relation of life 
 bowed down with age: that she had not the tenant and remaindress. which, if she was 
 advantage of i)roper advice or counsel — the ' not made aware of her mother's death, she 
 
 imiuession of either utter imbecility, or im- 
 positi(m. of which the transaction raises the 
 pivsuniiition. is strengthened. The difference 
 among the witnesses is decided, not only by 
 inherent evidence of mistake, arising from the 
 gross disproportion lietween prbt' and lu'oiier- 
 ty, but by this comlition of the plaintitT, as 
 to which there is a strong preponderance of 
 evidence. 
 
 'ihe nature of her right rei|uired good ad- 
 vice: and she had none. Did she know— was 
 she made tr» understand— or is there i»roof 
 from whiih we mu.st infer that she did un- 
 derstand, that her mothers death gave her 
 this valuable property'.' Was its value and 
 
 still must have supposed to exist; and the 
 same consv-tpu'iicos attended the tran.sa< tion, 
 as if Mrs. llolloway was still alive. Tlu-ge 
 conseipiences are stated with great power by 
 Chancellor Har|>er. in (Jiei:^ v. Harliie. ImkI. 
 Ei|. 41'. Iiuh-ed. the mere death of Mrs. 
 Holloway did not terminat(> fiiat n-j.-ifion as 
 
 •5f4 
 •betw(s'n the defendants ;ind the plainflff; 
 nnd nothinu' could but a fair exj-cution of the 
 trust, implied in the relation, by a surrender 
 of the proiierty. 
 
 I had almost omitted to noti<-e these deeds 
 In the l':ht of a compromise; in which li-'ht. 
 it was argued, they were entitled to si>ecial 
 
 *J2U
 
 ^574 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 favor. But, independently of the want of 
 sufticient evidence that they were so intend- 
 ed, and apart from tlie fact tliat, on their 
 face, tliey do not purport to be such — the 
 conflicting rights not being stated or describ- 
 ed — they are still obnoxious to the charge of 
 unfairness, and a want of deliberation ; and 
 are, therefore, not the well understood act 
 which a coniprouiise must be. 
 
 The plaintiff is entitled to have these deeds 
 surrendered up and cancelled, upon the terms 
 to which she has consented in the bill and 
 at the hearing, i. e., that the note of Holmes, 
 which was tendered in Court, be delivered to 
 him ; and that the amount of $500. paid by 
 Jojies, with interest, be discounted out of 
 the hire of the slaves. 
 
 The last point made in the case was, that 
 this is not a fit case for the exercise of the 
 jurisdiction established, generally, in Young 
 V. Burton, MeAI. Eq. 255. 
 
 It was proved, in this case, that the de- 
 fendants are of ability to answer, in dam- 
 ages, at law, for the full value of the slaves 
 and their hire; and it was insisted, that 
 the very principle upon which the jurisdic- 
 tion to compel a specific delivery of slaves 
 was established, would be trampled on, if a 
 delivery were decreed in this case. It was 
 argued, that associations have grown up be- 
 tween the defendants and the slaves, in the 
 long course of years during which they have 
 been in possession — associations of the very 
 character which induced the Court to assume 
 the exercise of its power, in the ca.ses in 
 which it has exercised it : while, on the oth- 
 er hand, if such sympathies ever existed in 
 the breast of the plaintiff, they must, long 
 ago, have either died out, or become much 
 subdued ; and probably have no counterpart 
 auiong the slaves, or any of them. 
 
 *575 
 
 *It was at my instance that such topics as 
 these were reserved in the judgment given 
 in Young v. Burton, and again in Sims v. 
 Shelton. 2 Strob. Eq. 221. But it is obvious 
 that attachments must spring up in all cases 
 of life tenancy ; and if these are allowed to 
 obstruct the enjoyment of the remainderman, 
 it might as well be declared, at once, that 
 no remainderman is entitled to a specific de- 
 livery. He, and his feelings and rights, are 
 to be postponed to the feelings of the life 
 tenant; and the jurisdiction becomes value- 
 less to him. 
 
 The defendants are no longer the owners 
 of the slaves. The plaintiff is. She desires, 
 the use and enjoyment of them. That is im- 
 plied in her bill. I'n what resject is the 
 plaintiff less entitled, than if she had pur- 
 chased the slaves, for her own use, from the 
 defendants, and they had afterwards repent- 
 ed and refused to deliver? Yet in that case, 
 it is said, a delivery would be decreed ; and 
 such a case is frequently put as an illustra- 
 tion of the value of the jurisdiction. 
 
 230 
 
 I Besides, this jjlaintiff is demanding a stock 
 of negroes once belonging to lier father, and 
 given by him to her, in the last moments of 
 I his life. She may possibly have no kinnvl- 
 edge of the negroes now living. But it is 
 one of the best attributes of our nature, that 
 we value every thing that we can associate 
 with the memories of departed parents ; and, 
 perhaps, the longer we have lost them, the 
 dearer do these relics become to us. 
 
 It is a circumstance, too, to be noticed, 
 that Horry v. Glover. 2 Hill Eq. 515. one of 
 the cases in which this jurisdiction was exer- 
 cised, was a case of remainder-man against 
 life tenants: and perliaps the feature of im- 
 plied trust, existing in all such ca.ses, may 
 help to the jurisdiction, instead of obstruct- 
 ing it. 
 
 If, however, the impediment suggested 
 were allowed to prevent a decree for delivery 
 in this case, would it follow that the bill 
 should be dismissed? A general jurisdiction 
 having been established, giving the plaintiff 
 
 *576 
 a right to come here: if an im*pediment be 
 shown to the exercise of jurisdiction in one 
 form, may not the Court retain the bill, and 
 give relief in another? 
 
 It is decreed, that the defendants. John 
 Jones and Wyett Holmes, deliver up , the 
 deeds, executed by the plaintiff" to them, or 
 the 9th and 19th of June. 1848. and mention- 
 ed in the pleadings, and that the same be 
 wholly set aside and cancelleil ; and that 
 the note of W^ett Holmes, also mentioned In 
 the pleadings, and which was tendered in 
 Court, be cancelled and delivered to him. 
 
 That the defendants (with the exception of 
 tho.se as to whom the bill has been dismissed) 
 do, respectively, deliver to the plaintiff such 
 of the stock of negroes, Jenny and Edie, and 
 their increase, as they were in possession of 
 at the filing of this bill, and as are now 
 alive, (including all increase since the filing 
 of the bill, that are now alive,) and account 
 for the hire of tlie same, since the death of 
 Rachel Holloway. for such time as they have, 
 respectively, had the possession of the same. 
 
 Thrt they do, respectively, account for the 
 value of such slaves, of said stock, as they 
 may have had the possession of, and alienat- 
 ed during the life of said Rachel, in all cas- 
 es where the slaves so alienated survived the 
 said Radiel; and that they be charged with 
 interest upon the value of said s'aves. from 
 the death of said Rachel. 
 
 Thai they do res.ici-lively, account for the 
 value of such of said stock of negioes as have 
 died in their jjossession since the filing of 
 the bill; with hire for such portion of time, 
 between the death of said Rachel and the 
 death of said slaves, respectively, as they 
 had them in possession ; and interest on 
 their value afterwards.(ir) 
 
 That they do, respectively, account for the 
 
 Ur) [Fraser v. McClenaghen] 2 Strob. Eq. 229; 
 [Watson V. Kennedy] 3 Id. 1.
 
 REESE V. HOLMES 
 
 •579 
 
 value of su( h of said st«^)ck of negroes as they 
 alic'iarcd Itftween tlie death of said Kaehel 
 and HIiii;; of the l>ill ; with hire for siu-h por- 
 tion of said time as thoy liad possession; 
 and interest after the alienation. 
 
 Thai the sum of live lmndre<l doliarN, paid 
 ♦677 
 ly John Jcines, ♦as in the pleadiniis mentioned, 
 with interest on the same from the time of 
 said iiaynu-nt, he set off (as consentetl liy the 
 plaintiff) ajiaiiist such sum as may he charge- 
 able to said John, on said accounting; and, 
 if there he a halance in his favor, that the 
 same he allowed to liim. 
 
 Tliat the C'onnnissioner do iiii|uire the 
 names and value of sucli slaves as may have 
 died in the possession of any of said defend- 
 ants, resjiectively, between the death of said 
 Iladu'l and tlie tiling of the hill, and report 
 the same to the Court, for its judjiment, 
 (which is herel)y reserved,) whether the value 
 of said slaves sliould he accounted for, and, 
 if .s(», whetlier with or without hire or inter- 
 est. 
 
 It is further ordered, that the matters of 
 account, as aforesaid, be referred to tlie 
 Comndssioner, to report thereon; with leave 
 to report any special matter. 
 
 And that he do imiuire and report the 
 names, ases and condition and value of the 
 .said stock of negroes, and which of them the 
 .several defendants are, by the forefioinj; de- 
 cree, bound to deliver; and for which of 
 them they are hound to acct)unt as aforesaid. 
 
 Also, that the parties be at liberty to apply 
 for any further orders, necessary to carry 
 this decree into effect, or that may become 
 necessary in the cause. 
 
 Als«>. ordered, that all questions touching 
 the decrci'. proper to l>e made between the 
 defendants, (which (piestions have not been 
 heard, I be reserved for hearing; and al.so 
 all (piestions in this case, not hereby decided 
 and endiraced in the foregoing decree. 
 
 Ordered, that the defendants pay the cost 
 of this suit. 
 
 The defendants, except those as to whom 
 the bill was disndssed. appealed, on the 
 grounds : 
 
 Hecause, from the wliole case made by the 
 l»leadings, and evidence on both sides, the 
 jilaintifT was not, by the rules of Law and 
 Eiiuity applicable to the case, and the i)rin- 
 ciples on which this Court exi-rcises jurisdic- 
 
 ♦578 
 tlon, entitled to any relief in ♦this Court, and 
 the plaintiff's bill should therefore have been 
 dismissed ; and they endeavored to maintain, 
 
 1. That the marital rights of John West, 
 the plaintitT's first hus'oand. attached upon 
 the stock negroes, Jenny and lOdle, mentioned 
 In the hill. 
 
 'J. That the marital rights of James Ueese. 
 plaintiff's second husband, attached to said 
 negriH's wlnle tln'y wert' in \irginia, an<l lie- 
 fore their removal to this State. 
 
 3. That the negro woman, Jenny, having 
 
 Ih'cii lietpieatbed to Sally Williams, the plain- 
 tiff's sister, was not, in the partition had 
 under the Virgiiua proceetlings. In the Court 
 of Hrunswick Comity, assigned to Rachel 
 Williams for life only, but in fee al>solutely; 
 and that the record of said pmceeds. by a 
 proper constru<"tlon. conferred upon Ivachel 
 Holloway an al)solute title to the said ue- 
 gHK-s, Jenny and her child. Edie. 
 
 4. That Uachel Holloway. being at the 
 commencement, and continuing until the ter- 
 mination of the pHH-eedings in Court, In 
 Urunswlck County, \irginia. a nuirrled wo- 
 man, was not Inmnd or concluded by any er- 
 roiieons statements or omissions of fact lu 
 tlie bill there tiled, or the proceedings had 
 under it. 
 
 ;"). That the marital rights of James Keese. 
 supposing them not to have attached In 
 Virginia, had attached here, to the .said Jen- 
 ny and Edie. and their increase, at the time 
 he executed the deeds to the defendants, re- 
 spectively, as set ftirth in their answers: — 
 and. to sustain this view, the defendants re- 
 lied upon the forfeiture, by Uachel Holloway. 
 of her life estate. 
 
 (5. That the plaiiitlCf was barred by the 
 stiitute of limitations, which commenced to 
 run as early, at least, as 1S19. 
 
 7. That the d»'eds made by James Ueese. 
 and by him and wife, were good and valid 
 transfers to the defendants, of the slaves 
 in (piestion. and formed a legal and e<piitable 
 bar to the plaintiff's right of recovery. 
 
 8. That the deeds executed by the plaintiff 
 to the defendants. Holmes and Jones, in 
 June. 1S4S. were valid, and should have iH'en 
 sustained by the Court, as in bar of the phiin- 
 tift"s right of recovery. 
 
 ♦579 
 ♦9. That the plaintiffs claim is ancient 
 and .stale, and rests by the decree of the 
 Court upon facts doubtful. ol)scure, and im- 
 perfectly proved, and upon old records ot 
 eipiivocal construction, and therefore should 
 have been rejected, and her bill tllsmissed. 
 and that the deeds of James Ueese and wife 
 should have been upheld and sustained by 
 the Court, as a family compromise i)f doubt- 
 ful rights. 
 
 10. That the plaintiff having iHMome sui 
 juris l)y the death of her husband, Ueese. In 
 is;!7. and having then full kn<)wli'dge that 
 the defeiulants held the pos.sessl(m of the ne- 
 groes as aUsolnte owners, and not as trus- 
 tees for her in remainder, was barred of her 
 right to recover by the statute of limitations, 
 previous to the death of her mother, Uachel 
 Holloway. in 1S47. 
 
 11. That the decree is erroneous, In refer- 
 ring for su|»p<u-t, lu the decision of a (jue.s- 
 tion t)f fact, to the character of the contents 
 of a paper not received in evidence, but re- 
 ject«>d by the C»)urt, up()n the hearing of the 
 cause. 
 
 \'2. That the decree is erromnius, in hold- 
 ing the defendants accountable for the value 
 
 231
 
 ^379 
 
 5 RICHARDSON'S EQUITY REPORTS 
 
 of the negroes sued for, and which were in 
 the possession of the defendants at the tiling 
 of the bill, but have died since, during the 
 pending of the suit. 
 
 13. That the decree is erroneous, in ordei'- 
 Ing the specific delivery of the slaves ; and 
 it was submitted, that under the circumstanc- 
 es of this case, the Court had no jurisdiction 
 to grant the relief prayed for ; and that the 
 plaintiff, if she had any rights, should have 
 asserted them in another jurisdiction, where 
 she had a plain and adequate remedy. 
 
 232 
 
 Bauskett, Griffin, Carroll, for defendant 
 Snead, Miller, for plaintiff. 
 
 PER CURIAM. We concur in the decrte; 
 and it is ordered, that tlie same be affirmed; 
 and that the appeal be dismissed. 
 
 JOHNSTON, DUNKIN and DARGAN, CO., 
 concurring. 
 
 WARDLAW. Ch., havinj 
 did not hear the appeal. 
 Decree affirmed. 
 
 been of counsel. 
 
 WEST PUBLISHING CO., PRINTERS, ST. PAUL, UINN.
 
 ■•^i^M^''-''?'i^f^^:;^:S|PSi|58