Volume 11 — South Carolina Equity Reports

<p>Josiah Allen died about 1196, having before made and executed his last will and testament, by which he bequeathed his whole estate, cousisting of slaves and other personalty, to be equally divided between his wife, Janet Allen, and his two sons, Benj. J. Allen and Wm. W. Allen. William died some time after, in his infancy, and consequently without issue, and intestate, so that his portion of the estate, which then remained undivided, descended to his mother, Janet, and his brother Benjamin, the whole of which remained in the possession of Janet, the mother.</p> <p>In 1804, and subsequently to the events above referred to, Janet Allen entered into a treaty of marriage with the defendant, Geo. Humph, and in contemplation of the marriage, they joined in the execution of a deed, which was duly recorded in the office of Secretary of .State. In this deed is recited an agreement, “ that ^previous to the performance of -■ the said intended marriage, the said George Rumph should assign and make over all and singular the property or possession that the said Janet Allen is or may be entitled unto by virtue of the said will of the said Josiah Allen, likewise all and singular the property and possession which she now has, or is entitled unto, independent of the said will, with the increase of slaves, stock, &c., to the said Janet Allen, her heirs, executors and assigns ” And reciting the intended marriage, and a nominal sum paid as the consideration, the deed proceeds thus : “ The said George Rumph hath bargained, sold, and by these presents doth bargain, sell and set over to the said Janet Allen, her heirs, executors, administrators and assigns, all the said legacy, so bequeathed by the said Josiah Allen, and all and singular any other species of property belonging to the estate of the said Josiah Allen, or which she, the said Janet Allen, is or may be entitled unto, with all the increase of slaves, stock, &c.”</p> <p>The marriage was solemnized in 1805, the year following the execution of this deed, and the parties lived together in the joint possession and use of the entire estate of Josiah Allen, (for it was yet undivided,) until 1816 or 1817, when they separated, and Humph, the husband, went abroad and engaged in the business of overseering; and shortly after (about 1818) the estate was divided between Janet, the wife, and her son Benjamin ; and she, with her portion, went to live with a relation. Janet died in 1828, but before that time the defendant had possessed himself of some of the slaves, and after her death, administration of her estate was granted to him, and he took possession of the others. As a circumstance, going to show that the defendant regarded this estate as the separate property of his wife, it is stated that he was arrested for debt in 1814, and intended to apply for the benefit of the insolvent debtor’s act, he made a schedule, of his effects and estate, on oath, in which no part of this estate was included, and it is conceded that he is now insolvent.</p> <p>After the defendant had possessed himself of all the negroes, they were taken in execution by the sheriff, to satisfy judgments against him to a large amount, and the original bill in the case was filed by the plaintiff’s testator, who survived his mother, to enjoin the creditors from selling the negroes, and to have their possession restored; but in the bill of revivor, filed by the plaintiff, it is stated that they have been since sold by agreement, *and the proceeds deposited with the attorney of the judgi J ment creditors, subject to the final decree of the Court, without detriment to the rights of any of the parties.</p> <p>The plaintiff claimed the fund for his testator, as sole heir of his deceased mother. Humph, the defendant, claimed it in virtue of his marital rights. If his claim is valid, his creditors are of course entitled; but whether it is or not, it is insisted for them, that the deed is void as to creditors, because it contains no particular description of the property intended to be settled, either in itself or by a schedule attached, as required by the Act of 1192.</p> <p>The case was heard before Chancellor Johnston, at Walterborough, January, 1834, who held, that the deed executed by Rumph previous to his marriage, interposed no barrier against the operation of the marital rights upon his subsequent marriage and obtaining possession of the property, and decreed accordingly. From this decree the plaintiff appealed, on the ground: that the deed, executed by Rumph, divested him of his marital rights, and vested an absolute separate estate in his intended wife.</p>

Colleton, January Term, 1834. — Before Chancellor Johnston. The object of this bill was to perfect and set up the following paper as a bond, and to compel the payment thereof. Held: that according to the decisions of our Courts, such a paper as that now attempted to be set up is void at law; and that the equity to set it up is sworn off by the answer, there being no sufficient proof to the contrary. He accordingly dismissed the bill.

Colleton, January, 1834. — Before Chancellor Johnston. This bill was filed by the plaintiff, as the administrator of Judy, a woman of color, formerly the slave of John Cato Fields, deceased. It states that the said John Cato Fields, being the lawful owner of Judy, on the 14th April, 1806, executed a deed of manumission, by which Judy was emancipated and set free.

Colleton. Before Chancellor Johnston, who delivered the following-decree : The bill in this ease is filed to establish as an annuity, a legacy left by the defendant’s testator to the plaintiff, the bequest of which is in these words : “ It is my will, that the sum of one hundred and fifty dollars be paid out of the profits or moneys arising out of my estate, to my son John C. as a maintenance for him, for and during his natural life, and no longer.” The answer admits the…

<p>Before Chancellor De Saussure.</p> <p>Bill for account. The plaintiff's testator and the defendant entered into written articles of partnership for the making and selling brick. They accordingly established a brick yard on the premises of Allen, using his soil and timber, and conducted the business together for three years, each party contributing according to the agreement. The partnership was to continue for ten years, but after the third year, Allen withdrew his quota of labor, and bestowed no further attention to it. Hamlin, however,insisted to go on and continued the business until the end of the term, using largely of the timber and soil. Allen dying, his executor filed this bill for an account of the partnership profits, in which he claims, that after making due allowance to Hamlin for his extra labor and attention, the wood and clay and use of the premises constituted such a contribution, as entitled Allen to share in the profits during the whole ten years, or in any event that he is entitled to compensation for the use and occupation of the premises, and for the wood consumed in burning the bricks.</p> <p>The Chancellor held that the plaintiff could not maintin his bill except for the three years, and refused to allow an account for the remainder of the term, or any compensation for the use of the premises, or the wood consumed. From this decree the plaintiff appealed.</p>

<p>The plaintiff in this case, as the administrator of Robert May, filed his bill in the Court of Chancery, for Colleton district, against the defendant, to set aside the sale of certain negroes, and for an account of their hire. At January Term, 1831, Chancellor De Saussure decreed the sale to be illegal and void, and ordered the negroes to be sold by the Commissioner, and that it be referred to him to examine and report the debts against Robert May In pursuance of this order, the Commissioner sold the negroes, for an amount which, with the account for their hire, exceeded the debts. On the reference to ascertain the debts, a debt was claimed in favor of John King. To establish the debt, the record of a case in the Court of Common Pleas was produced, from which it appeared *that, in 1825, King brought suit against Margaret May, (the r*oq widow of Robert May,) and Edward C. Walker, (the present L plaintiff,) as executrix and executor de son tort, on a promissory note for §200, payable on demand, and dated in 1811, and judgment was obtained and execution issued in 1821. Margaret May afterwards died, and in 1829, Edward O. Walker took out letters of administration on the estate of Robert May, and it is admitted that he is now insolvent. The Commissioner rejected the demand, on the ground that the note was barred by the statute of limitations in the lifetime of Robert May, and the judgment against his executors de son iort, he held was not valid, so as to re-establish it.</p> <p>The creditor, King, claimed to have his debt paid out of the assets in the hands of the Court, and excepted to the Commissioner’s report, alleging error in his decision. At January Term, 1834, Chancellor Johnston overruled the exceptions, and confirmed the report, and from his decree an appeal was taken.</p> <p>argued that the subsequent administration of Walker had relation back to the death of his intestate and legalized all his previous acts; and that he was estopped from denying the validity of the judgment. He cited and relied on 1 Com. Dig. 466, tit Ex’ors and Adm’rs; 1 Esp. Dig. pt. 2, p. 91; 2 St. 1106, Yaughn v. Brown; 2 Yent. 180 ; 1 Com. Dig. 503 ; 8 John. 121; 1 Saund. 265, note 2.</p> <p>cited Anderson v. Belcher, 1 Hill, 246. M’Neil v. Jones, lb. 84.</p>

W. W. Trapier lived and died a resident of Georgetown district. His executor and some of his creditors and legatees are residents of that district ; some of his creditors and legatees are resident in Charleston district.

Bill for account. On the reference before the Master to make up the accounts, the defendants claimed a credit of two hundred dollars, as a counsel fee paid by him for litigating the question made in this case. The Master refused to allow it. Exception being taken to the report, Chancellor De Saussure sustained the exception, and an appeal was taken from his decision.

Charleston, May Term, 1833. — Before Chancellor De Saussure, who pronounced the following decree : The object of the bill in this case is to have the benefit of a judgment at law, on a bond of the late Mrs. Sebina Hall, and for that purpose to set aside certain sales and conveyances of lands and negroes, made and executed by said Mrs. Hall to Dr. Toomer, the defendant, prior to said judgment, on the ground of fraud and inadequacy of price.

De Saussure, Chancellor. In this case the master has made a report, which states the question clearly, to which the solicitors on the part of the creditors of Isaac Parker have filed exceptions.

Orangeburgli, January, 1831. — Before Chancellor De Saussure. This bill was filed by John Conner, as administrator de bonis non, and with the will annexed, of Jacob Whiteman, and as pro. ami of Clarissa and Joel Rhode, William, Mildred and Jefferson Conner, infant children of Elizabeth Conner, formerly Elizabeth Carn, and called by that name in the will of Jacob Whiteman.

Heard before Chancellor De Saussure, at Dnion, June, 1833. The bill states that Edward Stevens died in 1832/ leaving a will, by wliich'he disposed of his property in the following clauses, to wit: “ 1st. It is my will and desire, that my loving wife, Sarah W. Stevens, do have all the property which come by her in marriage; and in place of the horses which I have traded, I give her my horses, Billy and Hector ; and that she do pay off the debt she owes to Thomas Pratt, of…

Heard before Chancellor De Saussure, at Greenville, July, 1833. This bill was filed by one of the legatees of Edward Nash, against his executor and devisee, claiming an account of the personal estate, and partition of the real. The demand for partition was resisted on the ground, that all the testator’s land, with a mill situated on one of the tracts, passed under his will to the widow for life: and the Chancellor so ruled. From his decree the plaintiff appealed.

The bill in this case was filed for partition of the estate of Otis Edger-ton, between the plaintiffs and defendants, his heirs at law. By consent of parties, a writ had issued for the partition of the estate, including a slave, named Frank.

Barnwell — February, 1834. The petition, in this case, stated that the petitioner removed from this State to Georgia, where he was regularly appointed the guardian of the persons and estates of his children, who are entitled to certain personal property in this State, and to moneys now in the hands of the Commissioner; and that he has given bond and security for the proper discharge of his duties : That he is desirous of removing the property of his wards to Georgia, where…

Marion — February, 1834. The plaintiffs, as creditors of Lemuel Bryan, filed this bill to set aside a judgment obtained by the defendant, Brown Bryan, against his father, Lemuel Bryan, on which funds arising’ from the sale of his property by the sheriff were claimed, charging the same to be without consideration and fraudulent. The facts of the case, and the questions made in argument, are fully stated in the following Circuit decree: De Saussure, Chancellor.

<p>The plaintiff had paid one hundred dollars to testator in part price of a negro; after testator’s death, six out of eight of the residuary legatees, gave their bond to the administrator with the will annexed relinquishing their interest in the one hundred dollars, and authorizing the payment of their shares therein to the plaintiff:— Held, that the bond was an assignment of their interest in that fund to the plaintiff, — that this was an equitable and not a legal demand, and the statute of limitations did not apply to it: that this claim arises not under the will, but on the assignment, and a receipt for ‘his dividend’ applies to his share under the will, and does not preclude the plaintiff. [*62]</p> <p>The administrator, will not in such case be discharged, on the ground that he has no assets in his hands in consequence of the legatees having purchased at his sale more than the amount of their shares. [*62]</p>

John Guess, the maternal grandfather of plaintiffs, devised and bequeathed both his real and personal estate to his wife for life, and after her death to be divided amongst his children, of whom Rachel, the mother of the plaintiffs, and wife of John Matheney, was one.

Columbia, April, 1834. This was a petition on the part of minor children, praying the appointment of Mrs. Sally Maria Martin, their step-mother, as their guardian. De Saussure, Chancellor.

Camden.— Wilie Vaughan, by deed dated 12th April, 1819, in consideration of natural love and affection for his wife and children, and also in consideration of five dollars, conveyed to Benjamin Bineham, Wm.

<p>If there be mutual running accounts between the parties and any of the items have accrued within the, time of the statute of limitations, this amounts to an acknowledgment of the previous account and a promise to pay. [*92]</p> <p>The plaintiff, (an administrator,) claimed demands in his bill against the defendants extending down to a period within the statute: and set forth that he as the agent of his intestate had frequently called on the defendants and requested them to come to a settlement of their accounts, and pay what upon balancing the accounts should appear to be due: — Reid, that this statement of the bill is such an admission of the previous accounts of the defendants as will prevent the operation of the statute of limitations; and being made by his agent is obligatory on the estate of the intestate. [*93]</p> <p>Before answer filed, it was agreed between the parties that neither should plea'd the statute of limitations to the demands of the other, and the defendants did not in their answer, or on the reference, urge that plea; the plaintiff will not after-wards be permitted to plead the statute. [*93]</p> <p>Generally an executor or administrator may or may not plead the statute of limitations: the only exception is when the demand is in whole or in part due to himself, in which case the legatees or distributees have been permitted to plead it when he had not: but when the administrator is the sole distributee, his agreement not to plead the statute has every possible legal and equitable sanction. [*94]</p>

<p>When actual fraud in a judgment or conveyance is clearly proved, it is wholly void and will'not be permitted to stand as a security for what is actually due; but when Equity infers fraud from the circumstances and relation and character of th^ parties, it is at the discretion of the Court, to allow the security to stand good for what is really due. [*95]</p> <p>Edgefield. — Before Chancellor De Saussure, June, 1833.</p> <p>The plaintiff, as a judgment creditor of John Spann, filed this bill to set. aside a judgment the defendant Holmes had against Spann, charging the same to be fraudulent, and praying that certain moneys, which Holmes had received on it of sales by the sheriff, may be decreed to him. Spann has left the State. The answer of Holmes denies fraud in the judgment, and affirms that the consideration was for services rendered by him in attending on behalf of Spann to an important suit in Equity, and for moneys advanced to him.</p> <p>Evidence was given on both sides, for and against the fairness of the transaction, which need not be detailed. The Chancellor’s decree declares that the transaction between Holmes and Spann was contrived and intended as a cover of Spann’s property against his creditors, which is fraudulent; or that it was an imposition by Holmes on the weakness and credulity of Spann, an habitual drunkard and exposed to the acts and extortions of designing men, and cannot at any rate be allowed to affect creditors : That Holmes is entitled to credit fdr the actual advances of money by him, and the true value of the services rendered ; and to ascertain these a reference was ordered.</p> <p>Both parties appealed ; but as the defendant’s grounds depend wholly on the facts, they need not be stated.</p> <p>now moved the Court to reverse so much of the decree as allows the defendant for advances made, or services rendered, on the ground — that the transaction being fraudulent, he should derive no benefit from it; and cited Miller v. Tolleson, Harp. Eq. Rep. 145 ; 1 Jac. & Walk. 119.</p> <p>cited 2 Seh. & Lef. 501; 1 John. Ch. Rep. 418; 8 Yes. 282.</p>

Chester. — Before Chancellor De Saussure, July, 1834. Bill to marshal assets. The bill was filed to compel the creditors of the intestate to come in and establish their demands, and receive their respective proportions of the assets.

Orangeburg.— The bill stated that Frederick Heath, the plaintiff’s father, executed, his last will and testament the 16th February, 1801, and died iu 1816, between which periods the plaintiff was born, and therefore no provision was made for her by the will.

<p>Lancaster — Before Chancellor De Saussure, July, 1834.</p> <p>The plaintiff, a judgment creditor of Alston Coiel, filed this bill to set aside a bill of sale for negroes which the latter had made to the defendants, his sisters, alleging it to have been executed with an intent to defraud creditors. The Chancellor, by his decree, declared the bill of sale void, and the property subject to the payment of Coiel’s debts ; and the defendants appealed. The only grounds which need be stated, and the facts connected with them, are set out in the opinion of this Court.</p>

Spartanburgh. — June, 1834. The bill in this case was filed for partition. Held: “ Rent, which the land was rendered capable of producing by the labor and expense of the tenant in possession, as by erecting buildings, or clearing, or draining lands, is not to be taken into the account. But if by any of these means, the land has deteriorated in value, he is accountable for this as for waste.

<p>Spartanburgh__June, 1834.</p>

Laurens. — Before Chancellor Johnston, July, 1834. William BrysOn, Sen , died, leaving of force his last will and testament, which contains the following clauses: “ It is further my will that after the death of my wife, that my negro girl Fan, if my son William think proper, is to be sold and the proceeds of her to be equally divided among my sons Matthew, James and Robert, and my daughters, Margaret and Agnes: but if William choose to keep the girl Fan, and not sell her, it…

<p>Union—</p> <p>This bill was filed 11th November, 1832, by John P. Sarter, and wife Patsey, late Patsey Sims, daughter of Reuben Sims, the said Reuben Sims' and his infant children, Ann, Mary, John, James, William and Reuben, by their next friend, Nathan Sims, against the defendant, as administrator with the will annexed of Edward Stevens. It states that the said Edward Stevens, in his lifetime, and Reuben Sims, entered into the following agreement, to wit: — ■</p> <p>State of South Carolina,]</p> <p>Union District. j</p> <p>Agreement made and entered into this 11th day of January, 1832, between Edward Stevens of the State and' district aforesaid, of the one part, and Reuben Sims, of the State and district aforesaid, of the other part, as follows : — The said Edward Stevens-doth hereby agree with said Reuben Sims, to sell to the children or their agent, of the said Reuben Sims, all that family of negroes *and their increase, known by the r^-. 99 name of Abram and his family, that I bought at sheriff’s sale at L ~‘~l Union Court House on sale-day, in September, in the year 1821, for the sum of eighteen hundred dollars and interest from the time that he bought them; and that he, the said Edward Stevens, in January next, on receiving from the children, or their agent, of said Reuben Sims, the said sum of money, then he is to execute a bill of sale of the said negroes to the said children, or their agent, of said Reuben Sims, free from all incumbrances, which bill of sale shall contain a general warranty, and the usual full covenant: and the said R. Sims agrees with the said Edward Stevens, that the children, or their agent, of the said Reuben Sims, shall and will, in January next, and on the execution of such bill of sale, pay unto the said Edward Stevens the sum of eighteen hundred dollars, and interest aforesaid. And it is further agreed between the parties aforesaid, that the said Edward Stevens do pay hire for the use of the aforesaid negroes from the first January, 1828, until January next, when, and upon the delivery and bill of sale, the possession is to be delivered to the children or their agent, of the said Reuben Sims : it is agreed between the parties that the children, or their agent, of the said Reuben Sims, do pay the said E. Stevens for his trouble and expense for attending to a law suit, what any two or three good disinterested men shall say it is worth : and it is understood that the stipulations aforesaid are to apply to, and to bind the heirs, executors and administrators of the respective parties ; and in case of failure, the parties bind themselves, each unto the other, in the sum of six thousand dollars, which they hereby consent to fix and liquidate as the amount of damages to be paid by the failing party, for his non-performance, whereof the parties have hereunto set their hands and seals, the day and year aforesaid.</p> <p>R. Sims, ■ [l. s.[</p> <p>Edward Steyens. [l. s.[</p> <p>That in pursuance of this agreement, Stevens received $100, and has had the use of the negroes, for which he was to pay hire, both which must be deducted from the price agreed to be paid for the negroes. That the time fixed for the performance of the agreement has not yet arrived ; and that the defendant as administrator, has recently advertised for sale all the personal property of Stevens not specifically bequeathed, including *1231 these negroes, and *is about to sell the same in December (then) J next. That the negroes are valuable, and' Stevens’ estate so- embarrassed, that after the payment of his debts there will not remain sufficient to discharge the $6000 which has been fixed in the agreement as liquidated damages for its non-performance; and if the defendant should be permitted to sell the negroes, they may be scattered abroad, or perhaps removed out of the jurisdiction of the Court, whereby a specific execution of the contract, which was the main object of the parties, would be prevented, to the irreparable injury of the plaintiffs : and under these circumstances they have no adequate remedy at law. The bill prays for an injunction to restrain the defendant from selling — that the defendant account for the hire, and give bond and security for the delivery of the negroes at the time specified in the agreement, — and that the said agreement may be specifically performed.</p> <p>On filing the bill, a motion was made before the Commissioner for an injunction, which was refused.</p> <p>On the 8th June, 1833, the defendant put in a general demurrer to the bill, which Chancellor Johnston overruled, and at the same time granted an injunction and leave to amend the bill. The amendment to the bill alleges, that in January 1833, the plaintiffs, by their friend and agent, Nathan Sims, offered to perform the agreement on their part, and tendered to the defendant the sum stipulated to be paid, which he refused to accept, and refused to perform the agreement on the part of said Stevens to be performed.</p> <p>On the 5th August, 1833, the defendant filed his answer, in which he requires proof of the execution of the agreement set out in the bill, and of the payment of four hundred dollars in part performance. He answers, that not believing that the plaintiffs seriously intended to prosecute their claim, he had advertised the negroes for sale, but has since declined selling until the matter is adjudicated; nor has he any intention of removing them from the State. He cannot say what the main object of the agreement was, but the estate of Stevens will be amply sufficient to pay any demand the plaintiffs could recover on account of the said agreement. That the time for the performance had not arrived at the filing of the bill, and submits to the Court, that if the plaintiffs had performed their part of the.agreement, they had a plain and adequate remedy at law. That if the plaintiffs could, at the time of filing their bill, have come into this Court for relief, it could only have been for an injunction until .-.¡., „ . the time of performance; and that part of the case has failed by L the rejection of the application'by the Commissioner: and as the case now stands, [before the amended bill,] it is a bill filed in November, 1832, to enforce an agreement, which, by its terms, is not to be performed until the January following, without alleging that the plaintiffs have performed or offered to perform the agreement on their part — in effect, asking the Court to enforce an agreement against the defendant before the time specified in it, and at the same time to absolve the plaintiffs from the performance on their part. And he pleads in bar the want of such an allegation in the bill, and to the jurisdiction of the Court.</p> <p>To the amended bill the defendant answered, that neither the said Reuben Sims, nor his children, did, at the time the agreement was to be performed, offer to perform their part. That he did not know there was any agent for the children, or who he was; neither does he believe that there was any such person legally authorized to act for them, and requires proof thereof.</p> <p>The cause was. heard before Chancellor De Saussure, June, 1834. On the trial the agreement set out in the bill was produced and the signature of Stevens proved. It was also proved that, in January 1833, Nathan Sims, the uncle of Reuben Sims’ children, and their next friend in this case, with bank bills in hand sufficient for this purpose, offered to pay Gordon the money due, according to the .agreement, and stated that if objections were made to the bills he would procure specie; to which Gordon replied that he made no objection to the bills, but that he did not know the amount which would be due according to the' agreement, and if he did, he would not accept the money. The estate of Stevens, it appeared, was much embarrassed, and from the statement of the administrator, (which was admitted by consent,) there will remain, after the payment of the debts, (exclusive of these negroes, or the sum of $1800 in the agreement,) about $3000 for distribution. Reuben Sims was insolvent in 1832, and is so now. It was further proved that the negroes in question came by Mrs. Sims in marriage, and some of them had been raised with her. They were purchased by Stevens, at sheriff’s sale, as the property of Reuben Sims, and after the sale he said that if the family of Sims, or their friends for them, would pay him what he gave, and some compensation for his trouble, they should have the negroes. The negroes were proved to be worth about $4000, and their hire from January, 1828, $215 per annum.</p> <p>^Chancellor De Saussure. The principal questions which arise in this case, are: — First. Whether this is such an agreement L as is binding on the representative of the estate of Edward Stevens And whether this is a case in which the Court ought to give the relief prayed for, by decreeing specific performance of the agreement ? At the hearing of the case, it was urged, though not very strongly, that there was no jurisdiction in the Court; but in answer, it was insisted that Chancellor Johnston had already decided that question, which was not appealed from, and that would be sufficient. But in truth, the plaintiff would have substantially the benefit of that plea, if the Court should be of opinion that this is a case in which it ought not to decree a specific performance.</p> <p>On examining the first question above stated, it appears to me, after ascertaining the facts proved in the cause, that the agreement is binding on the representative of Edward Stevens. The objections made were, that there was no person with whom he could legally contract, and therefore the contract for the slaves was void; and'^lso, that the consideration was too low and inadequate. It is true that Reuben Sims, with whom Mr. Stevens contracted to sell and deliver the slaves in question, did not contract on his own behalf, but on behalf of the children, or in other words, was constituted a trustee on their behalf. Now, it is the doctrine of law as well as of common sense, that if a. stranger undertake to contract for minors, his act, though it may not bind them, will bind him; for, in the very instrument of agreement he binds himself to pay the stipulated sum of $1800, and interest for the slaves, with a heavy penalty if the terms are not complied with: besides, it is not true that all contracts should be so absolutely mutual that mutual remedies should flow from them. One exception is, that if an adult male make a pi’omise of marriage with a minor, and fail to perform it, he would be liable for damages, though she would not be liable. Others would be made under peculiar circumstances. When an adult deals with a minor, knowing his minority, and in contracts for property with a minor, the deeds are not void, but voidable only at the option of the minor and if they be for his benefit, will be sustained. I think, therefore, that Mr. Edward Stevens and his representatives were bound by this contract. As to the inadequacy of the consideration, it is true that the contract was for $1800, and the slaves were proved to be worth $4000. If this had been an ordinary case Persons mature age dealing *with each other at arm’s length, J this'disproportion of price to value would not have been of itself a sufficient ground to put aside the contract without some circumstance of fraud, imposition, or utter ignorance. But none of these things have occurred; there is areal and valuable consideration, and no allegation of fraud or imposition. Mr. Stevens knew he had obtained a great bargain at the sheriff’s sale, at the expense of a large family, and seems to have been induced by kind feelings to let the children of the family have the slaves at the same price he had given, and who were to pay him in this act of beneficence. The objection by his administrator seems to me to be unfounded. Another objection was made, that the terms were not complied with, and the money not paid at the stipulated time. In transactions of this kind it is not understood that time is of the essence of the contract. To bo sure, great and long-continued non-performance will in some instances, in which circumstances are greatly changed, be construed into an abandonment of the bargain. This, however, is rare, and takes place only when the conduct of the parties indicates the intention to abandon the contract, or the delays haye produced great injury to the one' seeking to get rid of tlie contract. In the case we are considering, there is no evidence of any design on the part of the minors, or their friend and trustee, Mr. Sims, to relinquish the contract — on the contrary, an effort was made to complete the payment to the administration of Mr. Stevens, which, if it did not absolutely amount to a formal tender of the purchase money according to strict rule, was so substantially; and utterly takes away all pretence of the contract being abandoned, or so grossly neglected for an immoderate length of time, as ought to preclude the enforcement of it now by the administrator. The offer to pay the money was refused.</p> <p>The principal question in the cause, and one involving real difficulty, is whether it is legal and proper to decree the specific performance of an agreement for the sale of slaves. It is not to be questioned that the general doctrine of the Court of Equity is, that specific performance will not generally be decreed of contracts of personal goods and chattels, though it will as to real estate. The reason is, that the former are of a perishable and transient nature, and not always capable of being decreed in specie as land may; and also, because compensation in damages may, and generally will be, an adequate and proper remedy. There are, however, exceptions to the rule, when the personal property is of a peculiar Character, and where a peculiar value is placed upon particular articles, such as pictures, vases, arms, amorial-bearings — from L feelings of affection, family attachment, or other, considerations of that kind. It has long been a question, how far the rule or the exception should be applicable to the cases of contracts for slaves. All the reasons which apply to the exception, apply to the case of slaves; not, perhaps, broadly and unqualifiedly, but to domestic servants brought up in a family, and who became, as in this case, the subjects of contract with the family who raised them. In many of the contracts for slaves, compensation in damages would not be a proper or adequate compensation. In most cases, slaves are purchased with a view to the settlement and cultivation of land; and if a disappointment in the purchase of the slaves takes place, the land may be uncultivated and a burden. The Courts have been approaching to this view of the subject, and I understand that the Court of Appeals has leaned favorably to it. It is time that the doctrine should be settled, and I shall therefore decree, according to my judgment, in favor of the specific execution of this contract, in order to have the question distinctly carried up to the Court of Appeals for its final judgment.</p> <p>Other questions were made at the hearing. By the contract for the negroes between Stevens and Sims, on behalf of the minor children, it was agreed by the said Stevens, to sell to the children, or their agent, all that family of negroes (now in question) for the sum of $1800, and interest from the time he bought them at sheriff’s sale, (September, 1821,) and that he, Edward Stevens, would in January next, after date of the agreement, (January 11, 1832,) on receiving from the children, or their agent, Reuben Sims, the said sum of money, ($1800,) would execute a bill of sale of the said slaves, to the said children, or their agent, of the said Reuben Sims, free from incumbrances, and with a clause of warranty, whereupon the said sum of $1800 was to be paid, with interest, to the said Edward Stevens. And it was further agreed, that the said Edward Stevens should pay hire for the use of the said slaves, from the first of January, 1828, until the first of January then next ensuing, (January, 1833,) when the possession of the slaves was to be delivered to the said children, or their agent. It was also agreed, that the children, or their agent, should pay to Edward Stevens, for his trouble and expense for attending to a law suit, what two or three good disinterested men shall say it is worth. The parties also *bound themselves, and their heirs, executors and administrators, respectively, in the sum of six thousand dollars, as the amount of damages for the faithful performance of the stipulations of the agreement. These stipulations are sufficiently distinct and precise. Yet it was argued for defendant, that if interest should be allowed on the sum of $1800, paid by Mr. Stevens, and hire allowed for the work of the slaves during the time they were held by him, that it would be greatly to the disadvantage of the estate of Stevens, as the usual rate of hire would greatly exceed the interest. If this should operate hardly on Mr. Stevens’ estate, it would be the effect of his own express agreement. Such are the terms of his own agreement. It might be inexplicable why he entered into such stipulations, unless we understand what I think all the circumstances warrant, and even require us to believe, which is, that Mr. Stevens, throughout the whole transaction, acted as the friend of the children, and though a bona fide purchaser of the slaves at sheriff’s sale at a low price, he never meant to make a profit on the purchase, but to let them have all the profits of the hire and labor, provided he was reimbursed his advance of $1800, with interest. This, I think, the true clue to the whole transaction, in which there was no impropriety towards any, and great kindness and good-will to these children.</p> <p>It is therefore ordered and decreed, that the plaintiffs do pay over to the defendant, the administrator of Edward Stevens, the sum of $1800, with interest, according to the agreement; and that the said administrator do convey the said slaves in question, and their increase, to the said children, mentioned in the pleadings, or to their agent, and account or their hire and labor according to the terms of the agreement. But under the circumstances, the rate of hire should be fixed at a very moderate rate. And that the Commissioner to whom the case is referred to examine and make up the account for hire, do also examine and report what compensation ought to be allowed to Mr. Stevens’ estate for his services in the law suit mentioned in the agreement, of which there is no proof before the Court. Costs, in such a case as this, to be paid out of the property in question.</p> <p>The defendant appealed on the following grounds :</p> <p>1. That the bill was prematurely filed: the injunction part having failed, there was no ground on which it could be restrained, and the demurrer should have been sustained.</p> <p>oq-i 2. The amendment to the bill ought not to have been allowed : •J it was too late, but if allowed, it should have been on terms.</p> <p>3. The agreement was not proved as required by the'answer, there being no proof that Reuben Sims executed it.</p> <p>4. There was no proof that Reuben Sims, his children, or their agent, offered to perform their part of the agreement at the time it was to have been performed, or at any time since: the agreement requires performance by the children or their agent, and there was no proof of any such agency — the unauthorized acts of Nathan Sims were not such an offer to perform as required performance on the part of the defendant.</p> <p>5. The positive answer of the defendant, that there was no offer to perform by the plaintiffs or their agent, is conclusive against them, the proof as to the acts of Nathan Sims being vague and indefinite.</p> <p>6. That there is a plain and adequate remedy at law, and this Court has therefore no jurisdiction.</p> <p>Y. That the consideration is grossly inadequate — the agreement is unequal, unreasonable, unfair, unjust and unconscionable.</p> <p>8. There is no party responsible to the estate of the testator — no reciprocity in the contract — no mutuality. — Sims being insolvent, and his children minors, they should not only be willing, but able to perform the contract.</p> <p>9. Reuben Sims is insolvent — the contract uncertain and executory, and no part performed, — no injury can therefore result to the plaintiffs.</p> <p>10. That the decree is in every respect contrary to equity and evidence.</p> <p>argued that after the motion for injunction had failed, the bill being filed before the time fixed for the performance of the agreement, was stripped of all equity. After the time fixed for performance, and on the case being called for trial, leave to amend was granted, by inserting an important allegation; it was in effect a new bill, for relief could not have been had under the first bill at the time it was filed, and with the statement contained in it. Under such circumstances, to allow the amendment was improper; or if allowed, the costs of the case up to that time, should have been paid for the leave. The agreement was not proved, and the answer requires proof of it. Stevens’ ^signature was proved, but not Sims’, and such proof was necessary. New. on Gout. 161. On the fourth and fifth grounds, L he contended that there was not sufficient proof of an offer to perform on the part of the plaintiffs or their agent. There was no evidence that Nathan Sims was actiug for the children, and unless he came with authority from them, the defendant would not have been justified in delivering the negroes to him. But at most, conceding that he was authorized so to act, it was a mere loose conversation; to make it effectual as a tender, the money should have been deposited with the Commissioner. The defendant, however, denies that such an offer was made, and the answer must be evidence, unless contradicted by two witnesses, which it is not. It is incumbent on the plaintiffs to show that they had done all they could do. Mad. Chan. 831.</p> <p>But there is a plain remedy at law by action on this agreement, in which it seems the damages are liquidated, and adequate relief could thus be had. Can a bill be maintained for the specific performance of a contract for the sale of negroes ? The rule clearly is, that such a bill cannot be sustained for personal chattels in general; and if the case of an agreement for the sale of slaves is to constitute an exception, it will be now for the first time made. “ The general rule is, that the Court will not direct the specific delivery of a chattel, because the party has plain and adequate remedy at law.” Nott, J. in Lining v. Geddes, 1 M’C. Ch. 308 ; Farley v. Farley, 1 M’C. Ch. 506, decides the point that a bill will not lie to compel the delivery of slaves. There is nothing peculiar in the circumstances of this case, or alleged in the bill, to induce the Court to exercise its extraordinary powers in compelling specific performance — nothing to prevent plain and adequate relief at law. New. on Contr. 313.</p> <p>On the ground of inadequacy of price, he insisted that there was a distinction between executed and executory contracts — that while mere inadequacy of price would not be a ground to set aside the former, it might prevent the Court from interposing to enforce the latter ; and that to entitle a party to specific performance, the contract must be fair, just, and reasonable. Osgood v. Franklin, 2 John. Ch. Rep. 23 ; 1 Mad. Chan. 323, 407, 425 : 1 Bro. Ch. Ca. 326 ; 10 Yes. 292 ; Cas. Temp. Talb. 234; Mewl, on Contr. 69; Cabeen v. Gordon, 1 Hill, Ch. 54; Butler v. Haskell, 4Eq. Rep. 673.</p> <p>^-.q-T-i * According to the evidence, these negroes were worth at the J time offthe contract $4000, and their yearly hire from 1828 to the time of performance $275, making for their value and hire $5375. The price agreed to be paid with interest, to the same time, is $2472, leaving $2903 — a clear gain to the plaintiffs, and actual loss to the defendant. Besides, the hire so far exceeds the interest, that if the negroes remain much longer in his possession, the plaintiffs will have nothing to pay. Will a Court of Equity enforce such a contract ?</p> <p>The want of mutuality should prevent its enforcement. Sims is insolvent and his children minors, and if they were not, he could not compel them to perform, or make any contract which would be obligatory on them. They are not legally bound by this agreement. Will the Court enforce the execution of a contract where but one of the parties is bound ? In any event, before performance was decreed, they should have been required to put down the money. 1 Mad. Oh. 423 ; 1 Mad. Rep. 11; 1 M’C. Ch. 38.</p> <p>Lastly, the uncertainty of the agreement is an objection — the amount to be paid to Stevens for his services is uncertain, and as yet entirely unknown. Mad. Ch. 426 ; New. on Cont. 157.</p> <p>They insisted that the agreement was sufficiently proved. There was proof of Stevens’ signature, the party against whom it was to be enforced, and Sims is a party plaintiff in the bill which he has sworn to; besides, no such objection was urged on the trial when the agreement was regarded as being in evidence, on full proof of its execution. The important question in the case is as to the jurisdiction. The bill was not filed prematurely. The negroes were about to be sold; and the bill was filed on the familiar principle that a Court of Equity will interpose to secure the forthcoming of property to a party not entitled to the present possession, but in remainder. This is a proper ground of equity jurisdiction, and the refusal of the Commissioner to grant the injunction, does not destroy the equity. The case then, being properly in Court for one purpose, may be retained for every purpose; the Court having possession of the ease, will do complete and ample justice, and not send the parties to another tribunal. Rathbone v. Warren, 10 John. 596; King v. Baldwin, 17 John. Rep. 3,84. The subsequent amendment to the bill was properly allowed. *Leave to amend is a matter in the discretion of the Court, and r-^oo that discretion has been properly exercised to subserve the ends ■ L' of justice.</p> <p>The general rule, that a bill will not lie to enforce the delivery of specific chattels, proceeds on the ground that adequate relief can be had at law by way of damages. But in this case; such relief cannot be had, for it is at least doubtful whether the estate would be sufficient for that purpose. Exceptions, however, have been allowed to the rule, on account of some peculiar value attached to some chattels, where compensation adequate to the loss could not be had in damages ; as in the case of the Pusey horn, and family paintings, &c. The same reason applies. These are family negroes, the most of them raised with the plaintiffs — their qualities wore known, and feelings of kindness and attachment had grown up between them. Will the Court exercise its sensibilities in favor of a painting or a,Pusey horn, and withhold them in the case of a human being? From the principles laid down in all the cases on this subject, it appears, that where damages would be no adequate compensation, or the injury would be irreparable without it, specific performance will be decreed. In Howard v. Hopkins, 2 Atk. 871, the specific performance of articles for the purchase of an estate was decreed, although a penalty was fixed for .non-performance. 'See also Goring v. Nash, 3 Atk. 186-7. Whatever may be the doctrine of the English Courts, in this State, bills have been sustained for the delivery of slaves. Wamburzee v. Kennedy, 4 Eq. Rep. 474; Brown v. Gilliland, 3 Eq. Rep. 541 ; Chick v. Smith, Harp. Eq. Rep. 298, And specific performance of contracts for the sale of slave's, has been decreed in Kentucky and North Carolina. 4 Bibb, 186; 2 Bibb, 410 ; 2 Murphy, 74. Farley v. Farley, is not directly opposed to such a bill being sustained. The bill in that case was dismissed because the proper parties were not before the Court. It ought, however, to be reviewed.</p> <p>The want of mutuality is no objection. There is the same want of it in every contract between an adult and a minor, where one is bound and the other not; and as to Sims’ insolvency, the defendant has the security in his own hands — the Court will take care that the money shall be paid.</p> <p>As to the inadequacy of price, it is not pretended that there was any fraud in the transaction. Stevens was certainly not overreached; but, actuated by benevolent motives, consented to forego a *specula- r*iqq tion on being reimbursed what he had paid. 'Nor is there any L thing in the objection, that there was no offer to perform on the part of the plaintiffs. Nathan Sims was their next friend in the bill; he was notoriously acting on their behalf — the answer in this part is not distinct, and the evidence is satisfactory.</p>

Chancellor Johnston. The defendant, Ruff, contends— 1. That he is entitled to the whole capital and interest left at his intestate’s death. If he fail here, he insists— 2. That he is entitled to the interest of the entire year in which Samuel Neely died. Failing in this, he claims— 3. The interest of that year up to the time Samuel Neely died.

Spartanburgh. — June, 1834. Bill by a ward against his guardian for an account. The appeal was from the decision of Chancellor De Saussure on the Commissioner’s report, as to the mode of stating the account. .

Bill by legatees against executors for an account. This case was brought before the Court of Appeals in January, 1833, (1 Hill Ch. 122,) and the Court then determined that parol evidence was admissible, to ,h-i “show that the executors retained the legacies in *their hands J without making interest, in consequence of an agreement or understanding with the testator, that they should not be bound to invest the fund or make interest, nor be chargeable with interest upon failure…

<p>Decretal orders, when they may be suspended. [*153]</p> <p>Although a Chancellor has no authority to set aside a previous order of Court, final in its nature, he may, either in the Court or at chambers, suspend its execution, on the ground of subsequent matter that would render-its execution oppressive or iniquitous. [*156]</p>

<p>The bill in this case was filed by the plaintiff, for an( account from the estate of his father, George Lever, alleging that by reason of the plaintiff’s “ mental imbecility and want of education,” the said George had for many years acted as his general agent and trustee — received large sums of money and the proceeds of his crops, for which he had not accounted.</p> <p>On appeal from the decree of Chancellor Johnston, the Appeal Court, in January, 1833, decided the points then made, and directed issues at law to inquire whether a judgment obtained by George Lever against the plaintiff was founded on any and what consideration, or was voluntary ; and to try the plea of final account and settlement.- — (See 1 Hill, Ch. 62.)</p> <p>On these issues the jury found in favor of the judgment, and against the plea of final account and settlement; and thereupon the Court of Appeals, at May Term, 1834, ordered a reference before the Commissioner of Newberry, “who should examine and report upon the accounts between the parties, charging George Lever with all moneys by him received on account of Michael Lever, and which are embraced in the account sought by the bill; and crediting the said George with such sums as he may have properly expended for the said Michael, and also with such debts as the said Michael may owe to the said George, including therein the judgment so found by the jury to be bona fide; and generally with all suitable and proper allowances.” The case came up again before Chancellor Johnston, at Newberry, July, 1834, on exceptions by both parties to the Commissioner’s report, and he overruled all the exceptions and confirmed the report.</p> <p>From this decree both parties appealed, on the ground of error in the Chancellor, in overruling the exceptions respectively taken. *Most r^iKa of the numerous exceptions taken depend entirely on the facts. L The following are all which need be noticed :—</p> <p>On the part of the plaintiffs—</p> <p>3. That the Commissioner allowed the books of George Lever to be given in evidence, not only to prove necessaries furnished to the plaintiff, but cash advanced and spirits sold.</p> <p>1. That the Commissioner, after having received the books of George Lever to prove moneys advanced to the plaintiff, ought not to have permitted the defendant to have shown payments in any other way.</p> <p>By the defendant — .</p> <p>4. That the Commissioner charged the defendant with interest on the moneys received from the time at which they were supposed to have been received: whereas the defendant contends — 1 That he is not chargeable with interest at all. — 2. If at all, only from the filing of the bill. — 3. At all events only on annual balances.</p> <p>5. That the Commissioner has not allowed defendant commissions on receiving and paying away moneys.</p> <p>The facts relating to these several exceptions are fully stated in the opinion of this Court.</p>

<p>Where one, by power of attorney, authorized another to sell and convey a ship, and the attorney sold and received payment, but by mistake or ignorance executed the bill of sale in his own name instead of his principal’s, in consequence of which it was declared void at law: — Sold, that although the bill of sale could not operate as a conveyance at law, it was such an agreement as a Court of Equity will carry into effect against creditors of the vendor who had subsequently obtained legal liens. [*168]</p> <p>An endorsement on a ship’s register at the time of sale, that “the vessel should not be sold until the notes given for the purchase money were paid,” constitutes an equitable mortgage, especially when the ship’s register was left with the vendor. [*170]</p>

<p>Charleston. — April, 1833.</p> <p>De Satjssure, Chancellor. It appears that the late Thomas Wurtz was a weak man, and so habituated to intoxication as to render him incapable of managing his own affairs. The Honorable Wm. Johnson, Judge of the Supreme Court of the United States, for some time kindly took care of him and his affairs, and protected him from injury by others. It being inconvenient to him to continue this superintendence, which also required closer and more personal inspection than he could bestow, he gave it up, but advised that Mr. Wm. Thynes should be employed for the purpose. This being agreed to, Judge Johnson drew up an agreement, in- his own handwriting, between Thomas Wurtz and Wm. Thynes, which bears date 9th August, 1816, and is duly executed under seal by both parties, Judge Johnson being a subscribing witness thereto. By this instrument it is stated that Thomas Wurtz was entitled to seventeen slaves and a sum of money for *the sale of some land on John’s ■ ‘ J Island, and the hire of his slaves, and that being conscious of his inability to conduct a plantation without .instruction and assistance, he therefore agreed to constitute William Thynes his sole absolute agent and attorney, to transact his affairs in his name and for his use, and to allow him one-half of the profits arising from his property, in full compensation for his services ; and William Thynes, on his part, agreed to negotiate on behalf of the said Thomas Wurtz, the purchase of a suitable tract of land, to be paid for out of the moneys of the said Thomas, and to remove to the same and settle and plant thereon with the negroes of the said Thomas, and faithfully to account to him for the proceeds thereof; and, in the mean time, that the said Thomas should be boarded in the house of the said Wiiliam, and be allowed reasonable lodging, board and clothing, and pocket money. The agreement to remain in force, and be irrevocable for and during the term of fourteen years, during which time the said. William Thynes shall apply annually the dividends of the said Thomas, to the purchase of such property as may be deemed beneficial, and take parental care of him in sickness and in health.</p> <p>In pursuance of this agreement, William Thynes took possession of the estate and effeqts of Thomas Wurtz, and managed the same ; and on the 20th December, 1822, they both executed a deed, or instrument of writing, by which they stated that they had an accounting settlement together, of and concerning the agency and management of the property of said Thomas Wurtz, had and exercised by the said William Thynes, under the power of attorney of 9th August, 1816, and that upon such accounting, the said Thomas Wurtz was found indebted to the said William Thynes in the sum of $615; whereupon it was agreed that the said power of attorney should be cancelled, and that the said Thomas Wurtz should pay or secure to be paid to the said William Thynes, the said sum of $615; and the said William Thynes, in consideration of the said $615, (to be paid or secured,) relinquished all interest and benefit under the said power, and consented that the same should be cancelled, and Thomas Wurtz discharged from all further demands on account of said property; and Thomas Wurtz covenanted and agreed, and did exonerate and discharge the said William Thynes from all and every other and further account, reckoning, claim or demand, of what claim or nature whatsoever, which he *had or might have by reason of his agency aforesaid, pqirg or for any other account whatever. *-</p> <p>Attached to and forming part of this instrument, there was another paper signed by Wm. Thynes, under seal, dated 20th Dec. 1822, by which he acknowledged to have received of Thomas Wurtz a promissory note for $115, payable on 1st January, 1821, and that two slaves, little Jack and Hester, mortgaged to secure the payment thereof, were in his possession, where they were to continue in lieu of interest, until said note be paid ; upon which payment he promised to deliver to the said Thomas Wurtz, his executors, administrators and assigns, the said slaves, with the issue.and increase of the females, if any, without delay or default; the purport of which receipt is endorsed on the mortgage given to him, the said William Thynes. A copy of the mortgage thus referred to accompanied the proceedings, and is in the usual form, dated 20th December, 1822, by which Thomas Wurtz mortgaged the two slaves, little Jack and Hester, to William Thynes, to secure the payment of $115, due on his promissory note, with interest, payable 1st January, 1821, and in default of payment, the said slaves to be sold, and the surplus, if any, paid over to said Wurtz. Mr. Joseph Bennett, a practising attorney of reputation, appears to have drawn and witnessed these papers.</p> <p>At the hearing of the cause, the deeds and instruments of writing were given in evidence. Mr. Robert Green, a witness, testified that he knew the negroes, Jack and Hester. Jack was likely and prime — was patroon of Thynes’ boat for a year or two ; also, worked on Thynes’ farm — was good for any work. The general hire for boatmen is $12 or $14 per month — field slaves worth from $40 to $60 per year. Hester worked chiefly about the house — worth about as much as ordinary slaves. She had two children. Both Hester and Jack in the prime of life. On his cross-examination, he stated that when he first knew him, Jack was a boy. When Thynes first had him, hired him at seven dollars per month — . he fed and clothed them. Wurtz left Thynes when he got married in 1819. The mortgage was in 1822. Witness did not know of any dealings between them. The two slaves were worth $100 per year, for the last five years. Common boat hands earn $12 per month. Wurtz was a weak man, the most foolish he ever knew.</p> <p>Mr. Lance testified that he knew Wurtz ; he was a very weak man, an imbecile, and almost an idiot. He forgot what he had done — sometimes he spoke well and with some acuteness.</p> <p>*1 til *The pleadings in this case are not made up with the accustomed ' J accuracy of the bar. There is no prayer to the bill, and it is stated to the Court, that the parties agreed the cause should come on, as if the common prayer was inserted.</p> <p>Two questions were made in this case :—</p> <p>1st. Whether the plaintiff is entitled to a general decree for an account, or was barred by the settlement and release in December, 1822.</p> <p>2d. Supposing the release obligatory, is the demand of the plaintiff to redeem the mortgaged slaves, on payment of the debt due by Wurtz to Thynes on note of hand, well founded, or is the right to redeem barred ?</p> <p>There is no doubt that Wurtz was a weak man, incapable of much mental exertion, but not an idiot. Judge Johnson, who knew his infirmity, advised the contract and arrangement with Thynes, and actually drew up the agreement in his own handwriting, and of course knew and approved the terms. This proves that he, who was a most competent-judge, did not consider Wurtz incapable of forming contracts which should be obligatory upon him, and that he thought Thynes a good man, fit to be intrusted with such a charge* and Such a power as was confided to him by Wurtz. Until Wurtz’s marriage in 1819, he appears to have lived contentedly with Thynes under the agreement. After that he went away, and the difference of his situation rendered it difficult to carry the agreement regularly or satisfactorily into execution. Accordingly, the parties came to a settlement in the year 1822. The power to Thynes was agreed to be cancelled, the parties had some accounting, and the balance of $615 was struck as due to Thynes. A release was executed by Wurtz, and he gave his note for the sum of $415, part of the said balance, with a mortgage of two slaves. It was this release which was attempted to be set aside. The bill, however, does not allege fraud in obtaining it. It does not allege false accounts or misrepresentations. It does not attempt even to surcharge and falsify. All, or most of this, 'would be necessary to induce the Court to open the accounts, much more to set aside the release. The settlement and release appear to have been made under the direction of Mr. Joseph Bennett, a gentleman of character and judgment. I believe the release now before me is drawn up in his handwriting, and I am bound to believe that he did not permit [*175 Thynes to practice a fraud on the weak Wurtz, of which *there is no sufficient proof. There is no moral or technical ground on which I am at liberty to set aside this release.</p> <p>The next question relates to the mortgage of the two slaves to secure the payment of the note of hand for $475. For it seems that $200 of the balance of $675 must have been settled in some other way, or given up voluntarily.</p> <p>The deed, or instrument, bearing date 20th December, 1822, from Wurtz to Thynes, recites that the former was indebted to the latter by note, for $475 payable 1st January, 1824, and the better to secure the payment, conveyed to said Thynes the slaves little Jack and Hester, - with proviso, that if the debt, with the interest thereon, be paid on or before 1st January, 1824, then the mortgage to be void; and in default of payment, Thynes was authorized to sell and dispose of the said slaves, and apply the proceeds to pay the said note, with interest, returning the surplus, if any, to Wurtz. Thynes, at the bottom of the mortgage, wrote an acknowledgment of the receipt of the slaves, and his possession of them, to be held in lieu of interest, until the note should be paid, on which payment he promises to deliver up said slaves and their issue, if any.</p> <p>It appears to me to be unquestionable that this is a mortgage of the slaves named in the deed, but so qualified by the receipt of Thynes (which he cannot question) as to give it the character in some respects of a vivum vadium.</p> <p>Two questions were made on the argument. What is due to the creditor? Is not the owner of the slaves barred by the statute of limitations from recovering ?</p> <p>The mortgage stipulates that interest is to be paid on the note. The receipt of Thynes states that the slaves are to remain in his possession in lieu of interest. There is then a discrepancy between the two instruments. The Court prefers the plain, straightforward dealing for legal interest. In many eases the use of the property left in pledge is worth a great deal more than lawful interest. It is a temptation and a shelter to usury. The Court therefore leans against that construction which would produce those effects; and where the two papers speak a different language, will prefer that which is most in the usual course of business, and most likely to do justice between the parties; and it will consider and treat this case as a mortgage to pay a certain sum of money, with legal interest, and the defendant to account for the hire and labor of the slaves.</p> <p>*But, it is said for the defendant, that his possession of these slaves has been so long continued since the note was due, (1st January, 1824,) that he is protected by the statute of limitations. There is a difficulty certainly on this part of the case. For if the instrument be considered merely a common mortgage, mortuum vadium, then the statute of 1712 vests the estate in the mortgagee. But if the receipt of Thynes gives the instrument a qualified character, partaking of the vivum vadium, then the bar from the construction of the statute does not apply. [*176</p> <p>The eases are very numerous in which the Court has been obliged to give construction to deeds in order to decide what was the nature of the instrument, from the apparent intention of the parties, although the deeds themselves did not distinctly mark their own character. A pawner of goods, in nature of a vivum vadium, where no time is stipulated for a redemption of them, has his whole life to redeem; and if there be a time fixed to redeem, and that has elapsed, the pawner may still redeem until the thing pledged is sold. In the present case, the holder of the slaves might have sold when the time of payment arrived, (1st January, 1824,) but until the sale the debtor may redeem.</p> <p>It is therefore ordered and decreed, that it be referred to the Commissioner, to ascertain how much is due by the estate of Wurtz, to Thynes, on the note, with interest thereon; and that an account be taken of how much should bo allowed for the hire and labor of the two slaves, little Jack and Hester, and that the same shall be deducted from the amount of the said note and interest; and that the balance, if any, be paid by the representatives of Wurtz to Wm. Thynes ; and if not paid, on report made and confirmed, that the said slaves be sold by the Commissioner, at public sale, for cash, and the surplus, if any, be paid to the representatives of Wurtz. Costs to be paid out of the sale of the slaves.</p> <p>The defendant appealed on the following grounds :—</p> <p>1. That the agreement between the parties was fairly executed on good consideration, and is valid; and it expressly stipulates that there shall be no account for the labor of the negroes.</p> <p>2. That if the agreement is not valid, the plaintiff is barred by the statute of limitations.</p> <p>3. That the defendant being a mortgagee in possession for more than two years after the time fixed for payment, the right of redemption is barred by the act of 1712.</p> <p>contended that the Chancellor -I had, by his decree, made an agreement for the parties different from that they had entered into. From the time the release was executed, they stood indifferent to each other — their former relation ended : and it was then agreed that the mortgaged negroes should go into defendant’s possession, and their labor be in lieu of interest. If the mortgage and agreement be void, the plaintiff can bring trover, and this Court has no jurisdiction, and in such case the defendant would be protected by the statute of limitations. If they are valid, they constitute either a common or qualified mortgage ; if the former, the plaintff’s right to redeem, after two years’ possession from the time of condition broken, is barred by the Act of 1812 ; 1 Brev. Dig. 70. Mortgagee, after condition broken, may bring trover; Montgomery v. Kerr, 1 Hill, 291. Length of time by analogy to the statute of limitations is a bar ; 2 Atk. 362; 2 Ball & Beatty, 402. Regarding the transaction as a qualified mortgage, the interest must be set off against the labor of the slaves, and there is an end to the account. It cannot be usurious, for with the risks incurred the labor would not be more than an equivalent for common interest. But, if it were usurious, the doctrine of equity is, that the principal and lawful interest shall be paid; Stat. Rep. 408; 1 Yes. jr. 527.</p> <p>insisted that the defendant is to be regarded as a-trustee in possession, and dealing with his cestui que trust, (a weak man over whom he has great influence) for the trust property. Under such circumstances this Court will not sustain the mortgage and agreement, unless it be shown that the transaction was fair, just and reasonable. This, he argued from the value of the hire of the negroes, it was not; but on the contrary, unconscientious and usurious. If usurious, the act of 1T12 does not apply. But the agreement qualifies the mortgage, and gives the party an unlimited right of redemption.</p>

Charleston. — Heard by Chancellor De Saussure. Henrietta Wragg being possessed of .some personal estate in her own right, and entitled to an undivided share of her father’s estate, was about to intermarry with M. Pogson. In contemplation of this event, Mr. Pogson entered into a bond to the trustee on 6th Feb., 1805, in which, after setting forth a statement of Miss Wragg’s property, he covenants to settle the same on her, without liability for his debts.

Coosa whatchie. — February, 1833. Harper J. (sitting as Chancellor.) The will of George Barksdale executed in IT 98, contains the following clauses :— “ Respecting my real and personal estate, consisting of land and negroes, now in my possession, I desire that the whole be kept together and improved to the utmost of the abilities of my executors, for the mutual benefit of my daughter, Mary White Barksdale, and my son Thomas Henry Barksdale, (requesting that they may have the…

Charleston. — May, 1834. This ease arises under the will of John Adamson, of Camden, dated 21st January, 1814. The testator left two daughters — Sarah, who intermarried with the defendant, Lewis Ciples, and Amelia, now deceased, who intermarried with the defendant, F. A. Delesseline; a granddaughter, the plaintiff, Charlotte A. Boykin, formerly Adamson, who intermarried with the plaintiff, John Boykin; and three grand-sons, John, Alexander and William Adamson.

The bill which was filed the 21th March, 1832, states, that on the 1st March, 1823, John M, Murray, the former husband of the plaintiff, Jane Thompson, and father of the plaintiff, Michael Murray, purchased a lot in Charleston at the corner of Xing Street and South Bay, for $2,500.

<p>Tenant for life may be paid for improvements -when he finishes buildings left unfinished. [*217]</p> <p>An executor will be allowed compensation for improvements made by him on real estate, when they are such as the Court would have authorized; and whether they are such depends on the fact whether they are beneficial to all concerned. [*217]</p>

[The Reporter not having been furnished with any other papers in this case, can present no other report than that contained in the following opinion of the Appeal Court.]

On the 5th of April, 1821, William Wheeler a married man, gave by deed to Sarah A Evans, a girl who was then with child by him, seven negroes in the following manner, viz : “ South Carolina, District of Charleston. — Know all men by these presents, that I, William Wheeler, of the above named parish, and in the said district, do hereby give and bequeath, and by these presents do give and bequeath unto Sarah A. Evans, daughter of Mary Evans, widow of John Evans, at present…

Tried before Chancellor De Satjssure, at Coosawatchie, April, 1834. Held: that when an act is done purporting to be in discharge of the trust, the statute of limitations begin to run. The payment to the plaintiffs’ father, whether authorized or not, was so intended, and from that time the statute runs. In any event, lapse of time must be a bar upon the presumption of payment.

<p>Settlement on husband and wife, to their joint use during coverture, and to the survivor; and power given to the trustee to sell and invest the proceeds, subject to the same trusts: the trustee sold, and the husband afterwards by deed, assigned his interest in the proceeds, to the trustee, giving him authority to reinvest for the benefit of his wife, in such way as she might direct; and the trustee accordingly reinvested to the sole and separate use of the wife during life, and if she died without leaving issue, then to the husband: — Held, that the husband had the right to change the terms of the trust; and that the rights of creditors must be determined by the interest he took in the property last acquired. [*239]</p> <p>A contingent remainder is not subject to the lien of a judgment; but an assignment of it for a valuable consideration will be supported in equity and specifically enforced, as an agreement: therefore where the remainder man against whom there were judgments before the contingency on which he took happened, assigned his interest, it was held, that the lien of the judgments must be subject to the equity of the assignment. [*242]</p>

<p>A remainder cannot be limited after a fee conditional. [*246]</p> <p>Testator by his will devised an estate to his son, E. L., for life, and at Ms death to the first son of E. L., and the heirs of his body lawfully issuing, and in default of such issue, to the second, and every other son of E. L. successively and in the order of birth, and to the several heirs of their bodies in like manner; and in default of sons, with like limitations to the first, second and every daughter of E. L. and successively in the order of their birth, and the several heirs of their bodies, &c.: and died in 1785, leaving one son, E. L., and a daughter. His son, E. L., the tenant for life had a son and three daughters; the son of E. L. died in 1797, without issue, and his father in 1831: — held, that the first son of E L. took a fee conditional; that all the remainders after the devise to him, were void; and that on his death, in 1797, the fee reverted to the right heirs of the testator. [*247]</p> <p>Although the testator died before the Act of 1791, abolishing the right of primogeniture, the reversion must go to those who were heirs at the time the fee conditional determined. [*248]</p> <p>A possibility of reverter is not devisable, (per Harper, J.) [*248]</p>

This case came up at Charleston, in April, 1834, before Chancellor Johnson, on the report of the Commissioner, made in pursuance of several orders calling in the creditors of George Keckley, and… Held: that the demand of the Commissioners of the poor, could rank only as a judgment debt; and decreed the amount claimed by the widow for dower to be paid, on the ground that the previous decretal order was binding on him, and could only be set aside by the Appeal Court.

<p>The bill states that John M. Ehrich, in his life time, and the plaintiffs, were jointly engaged in New York, in the shipment of hemp ; and that Ehrieh died in 1822, having first executed his will, by which he devised to the defendant, Mrs. Valk, a house and lot *in Charleston, and r^oco appointed his widow, Peggy Africana, his executrix. That pro- L ceedings were had in the Court of Chancery, in New York, on the part of these plaintiffs, touching these shipments against Mrs. Ehrieh; that by her answers she admitted assets, and that in 1826, it was then ordered and decreed as follows : “ The master having reported a balance against the estate of the said John M. Ehrieh, of $3528 93, and the said Peggy A- Ehrieh having, by her answer heretofore filed, admitted assets, it is ordered, adjudged and decreed, that the report of the master be confirmed, and that the defendant, Peggy A. Ehrieh, pay to the plaintiffs or their solicitors, the said sum of $3528 93, so reported to be due to the said plaintiffs.” That, thereupon, an execution was issued and returned nulla bona. That Mrs. Ehrieh died in December, 1832, having by her will, appointed the defendants, E. Parmley, L. Catlin, and A. Dey, of New York, her executors. That the personal estate of John M. Ehrieh is exhausted, and the house and lot in Charleston devised to Mrs. Valk, is the only resource to pay the decree. Prays an account for the rents, and satisfaction of the decree, by the sale of this property — and general relief</p> <p>Defendants, Jacob R. Valk and wife, demurred to so much of the said bill as sets forth a decree obtained, in the Court of Chancery, in the State of New York, by the plaintiffs, against Peggy Africana Ehrieh, lately deceased, and seeks to have satisfaction thereof by the sale of the house and lot devised by the said John M. Ehrieh, as in the bill mentioned ; and for cause of demurrer say, that these defendants were neither party or privy to the said proceedings, nor is the said decree against them or against the property so devised as aforesaid, but against Peggy Africana Ehrieh individually.</p> <p>Defendants further demur to so much of the bill as states that certain commercial transactions took place between the late John M. Ehrieh, in his lifetime and the plaintiffs, in which the said John was supposed to have become indebted to the said plaintiffs, and seeks to recover the amount of the same from the property in the possession of these defendants ; and for cause of demurrer say, that by the plaintiffs’ own showing, the said John M. Ehrieh is dead, and his executor or administrator is not made a party to the said bill; — and for further cause of demurrer, these defendants say the said Peggy Africana Ehrieh, executrix of John M. Ehrieh, admitted that she had assets of the estate of her testator sufficient *to satisfy his debts, and yet the plaintiffs do not show that r^arq they have pursued all proper means to procure payment of their L y supposed debts, from the fund so originally and properly liable, before resorting to the real estate of the said John M. Ehrieh specially devised in trust for this defendant, Sarah Valk.</p> <p>The Chancellor overruled the demurrer.</p> <p>The defendants, Jacob R. Valk and wife, appeal on the ground, that the demurrer should have been sustained for the reasons therein stated.</p> <p>contended that the decree in New York is against the executrix personally, who became liable by admitting assets-to be in her hands, and the plaintiffs hare ample remedy by enforcing that decree against her estate. That the property here never was under her control, and that the defendants, Yalk and wife, are in no wise bound by the New York decree to which they were not parties. That their property cannot be made liable until the executrix has been pursued to insolvency — and that there is no party now before the Court representing Ehrich’s estate; for the other defendants, executors in New York, are not recognized as such here. Cited 6 John. Ch. Rep. 373 ; S Cranch, 9 ; 8 Wheat. 646, 667, 671; 3 John. Ch. Rep. 58; 1 M’C. Ch. 417.</p>

<p>A surety to a.oustom house bond having paid it, is not entitled, under the Acts of Congress of ’97 and ’99, to be subrogated to the rights of the United States as against his co-surety, so as to give his demand for contribution a preference over other creditors'; nor on the general principles of equity can he claim to stand in the place of the United States as against the co-surety. [*266]</p> <p>Joint judgment against principal and sureties paid by one of the sureties, will not be set up for contribution against the co-surety. [*267]</p>

<p>■ The following brief of the appellant’s counsel is the only statement of the case which the reporter can present:—</p> <p>The bill states that Thomas Milliken died in the year 1719, having *2681 *PrCTiously executed his will, in which he appointed John M’Nish J his executor, and by which, after the death or marriage of his widow, he bequeathed all his estate to the plaintiffs — that N’Nish qualified, and in 1819 sold all the estate of his testator on credit, and took bonds for the purchase money — among others, one of James Cole for $900, one of Pearson Hardie for $850, and one of Isaac Hardie for $600. That the plaintiffs, being young, did not for a long time look after their rights; and in the mean time the executor, being deeply involved, wasted the estate and became insolvent. That he entered into a negotiation with the defendant, Joseph Longworth, who well knew his situation, for the purchase of a plantation called Stock Farm; and that Longworth, knowing the said bonds to be of the assets of the estate of Milliken, sold plantation to M’Nish, and took the bonds in payment and applied them to his own use — that M’Nish is totally insolvent, and the plaintiffs have not received one cent of their father’s estate. The bill prays that Joseph Longworth may account to them for the money so received.</p> <p>The answer of Joseph Longworth states, that as executor of his brother, Archibald Longworth, he sold to John M’Nish, in the year 1818, the plantation mentioned in the bill, for $7500, and received in cash one-third of the purchase money, and took the bonds of M’Nish, payable in 1819 and 1820, with a mortgage of the premises, for the residue. That M’Nish afterwards paid $2000, and he considered the debt amply secured by the mortgage. That in 1820, M’Nish offered the defendant the bonds of Cole and Hardie, in payment of his own, which he refused. That M’Nish then requested him to collect them for him, which he agreed to do, and M’Nish delivered them to him endorsed in blank, and the defendant gave him a receipt for them, stating that he had received them for collection. That he called on the parties and received the money due thereon, which he considered himself as holding for M’Nish, and offered to pay it to him, but M’Nish requested him to credit his bond with it, which he accordingly did, upon which M’Nish gave him a paper, which he has unfortunately not kept, in the following terms:—</p> <p>Received, 29th January, 1823, of Joseph Longworth, $2800.11, being the amount collected by him for me, from Messrs. Hardie and Cole, on account of the estate of Thomas Milliken.</p> <p>(Signed) J. M’Nish, Ex’or.</p> <p>*He denies that he knew the situation of the estate, or that r^9fiQ M’Nish had no right to pay him the money. That he did not eon- L sider the money his until his settlement and accounting with M’Nish as aforesaid. That M’Nish afterwards paid him the balance due, and he gave him up his bond and mortgage to be cancelled. That M’Nish was then in good credit, and continued so till 1821, when his property was sold by the sheriff; and he believes it would then have paid his debts, if it had not been bought up by his friends. That the farm was bought at this sale for $800, and a part sold soon after for $2500, and the negroes sold for §100 per head. That in 1825 the plaintiffs sued M’Nish, and by diligently prosecuting their suit, might have recovered their money — and that the defendant was never called on by the plaintiffs to account to them, or had notice of their claims till the filing of this bill.</p> <p>In January, 1833, the cause came on before Mr. Justice Harper, sitting for Chancellor De Saussure.</p> <p>John M’Nish, sworn on the part of the plaintiffs, says : — Longworth was pretty hard on me for the money I owed him — wrote to me several times [some of the letters produced] — I went to him and asked him to take the bonds, as he was more in the habit of collecting than I was, and if he could collect the money before I could pay him, he should have it. I took a receipt for them. I gave him a receipt for the money just before the last Court, as a memorandum of the settlement which took place in 1823. I have not the receipt which Mr. Longworth gave me ; the purport was that he had received the bonds, and when collected would account to me for them. The debt to Longworth was for a plantation of the estate of Archibald Longworth, at the price of $1000 ; the stock was $500 more, — $2500 were paid at one time, $2000 at another. The money received on account of these bonds was $2800. I sold negroes to Col. Martin to pay the residue, and he took up the bond and mortgage, which are now in his hands. I proposed to Mr. Longworth to collect the bonds and account to me for them, and had no idea of. insolvency at this time; and I believe Longworth thought the debt well secured. He said his brother’s estate wanted the money. My settlement with him was after May, 1823. My insolvency is to be dated from 1824 or 1825, by the loss of crops by caterpillars. My negroes were all sold in 1826 or 1821, except those I sold to Col. Martin — at the time of the transaction ^th *L°ngworth, I paid taxes for forty or fifty, probably more, plantation sold at sheriff’s sale for $800.</p> <p>Sundry executions in the sheriff’s office against M’Nish were given in evidence.</p> <p>His Honor decreed that the defendant shpuld account for the $2800 received by him, with interest.</p> <p>From this decree the defendant appealed, and now moves to reverse the same.</p> <p>argued, that the conduct of the defendant was free from artifice or design. He, too, was an executor, acting not for his own, but the benefit of others. The money was due to him as such, it was amply secured. In the first instance he acted as the naked agent of M’Nish, in collecting’the money on these bonds, and after collection, while he was still in good credit, and the affairs of Milliken’s estate unknown to him, lie had a settlement with M’Nish, in which he gives up the security he had, on receiving the money collected, and has since paid it over. The complaint really ,is, that the defendant has been more diligent in obtaining money than the plaintiffs. The law favors the vigilant — every one who collects money from a man in failing circumstances, may be said to get another’s money; nor can it be material whether in receiving payment of a just debt, if it be paid by the executor with his own money, or with money over which he has a legal control. 1 Some one must lose. Shall it be the defendant or the plaintiffs ? ' There may be great hardship on their part, but equal hardship on that of the defendant. The equities are at least equal, and in such case the law must prevail.</p> <p>Under the circumstances, can the plaintiffs follow these funds ? Whose were they ? In law, beyond all question, they were M’Nish’s ; if he had died, the bonds would have been his assets. Seabrook v. Williams, 3 M’C. 311. Suppose he had been sued by the defendant, and arrested on a ca. sa., and the ca. sa. paid by these funds, could he have been detained in custody, although it might be known that they were Milliken’s funds ? The defendant is chargeable, if at all, for having collected the money on these bonds and applied it to M’Nish’s debt, knowing it to be the funds of Milliken’s estate; but there is no case to be found in which money has been followed into the hands of a bona fide creditor, nor any principle on which a creditor can be called on to refund *money received in J payment of a just debt, without fraud. He reviewed and commented on the cases cited by the plaintiff’s counsel, and thence insisted that the extent of the rule on the subject is, — that if one by fraud or collusion with the executor, obtain- the assets, or the payment of a desperate debt of the executor, relief will be granted — and that the facts of this case did not show such fraud or collusion to justify the application of this principle. — Cited Tañer v. Ivie, 2 Yes. sen. 466, Ewer v. Corbett, 2 P. W. 148; Nugent v. Gifford, 1 Atk. 463; Elliot v. Merriman, 2 Atk. 41.</p> <p>The first question is, did Longworth receive the bonds on a mere naked trust to collect the money, or to Collect and apply to his debt. Although he states in his answer that he received them merely in trust to collect and pay over, that he did not, will be seen from the circumstances. The bonds are endorsed in blank by M’Nish, shewing an absolute transfer In his letters to M’Nish, he speaks of having received money on these bonds, as applicable to M’Nish’s bond 'to himself. From the evidence of M’Nish and the statement of the settlements, it appears that the defendant had actually given M’Nish credit on his bond for the amount of the bonds of Milliken’s estate, a year before the final settlement in 1823, when he got M’Nish’s receipt. [He here went into a detailed statement of the dealings of these parties to show this fact.] Lastly, the explicit evidence of M’Nish, that the understanding under which the bonds were delivered to him was, that the money, when collected, should be applied to his bond, if it was not paid sooner. Besides, it is not a little remarkable that he should gratuitously undertake the trouble of collecting these bonds, as the mere naked agent of M’Nish, expecting to derive no benefit from them. There cannot be a doubt that he received these bonds with the understanding and intention of further securing his debt — to be applied to its payment, and not merely to collect. But conceding that he received them merely as agent of M’Nish, the result must be same. He knew they were assets of Milliken’s estate, and applied them to his own use in fraud of the legatees.</p> <p>Had M’Nish the right to sell these bonds ? It is of great consequence that the question be clearly settled, how far an executor or administrator may dispose of the equitable assets of the estate. *The English law allows greater control to executors than ours. The Act of L ’89, (2 Brev. Dig. 95,) restricts their rights. It declares, “ that when it shall be requisite to make sale of any part of the personal estate, (for any purpose,) application shall be made to the Court of Ordinary which Court may “refuse or grant such order for sale, regulating the time, place and credit to be given, (Why?) so as to do impartial justice to all persons interested therein.’’ And when the will gives the power to sell — a mere naked power — it may well be doubted whether it is still not necessary to obtain an order regulating the important requisites of “ time, place and credit,” so as to do “ impartial justice to all concerned.” Such was clearly the leaning of the Court, in Saxon v. Barksdale 4 Eq. Hep. 528. The will gives the executors the right to sell such property as “ they may think proper, and to purchase such property as they shall judge beneficial.” The authority is to both executors — one only transferred the bond, although two were acting; one acting under authority, can only bind to the extent of his authority, 5 T. R. 606. If the defendant knew that under the will, M’Nish had power to dispose of the' funds, he also knew the purpose for which they were to be disposed of; and by taking the funds into his own hands, he becomes himself the trustee. 2 Eq. Rep. 318-9.</p> <p>Had the defendant notice at the time of the transfer, that these bonds were assets of Milliken’s estate ? He swears in his answer that he had no notice, except that the bonds on their face were payable to M’Nish as executor. This however is explicit notice, and supposing it were not, it was sufficient to put him on the inquiry. When defendant might, by diligence, have had notice, plea of want of notice shall not avail him.— Jackson & Wife v. Row, 2 Sim & Stuart, 412; Smith v. Low, 1 Atk. 490; Allen & Anthony, 1 Mer. 282; Daniels v. Davidson, 16 Yes. 249; Powell v. Dillon, 2 Ball & Beatty, 416. The bonds pointed the defendant to the Ordinary’s office, where he would have learned — from the will, the petition of sale and the accounts of the executor — that the executor ■#as always in arrears — that these bonds, by a special-provision of the will, were the property of these plaintiffs. In Saxon v. Barksdale, 4Eq. Rep. 528, and Franklin v. Creyón, Harp. Eq. Rep. 251, it was held, that the record of a will is notice of its contents to all the world; and by the same reasons, records of petitions, orders for sale, and executors’ accounts in the Ordinary’s ^office, are equally notices of their conJ tents. Longworth was living in the neighborhood, had access to 'these sources of information, and it is hardly credible that he had not full notice of all the facts.</p> <p>What is the effect of notice to the defendant ? Lord Hardwicke says, in Mead v Orrery, 3 Atk. 238, “If one will purchase with notice of another’s rights, he throws away his money.” It is settled in the English authorities, that where the assignment or pledge is for advances made to an executor or administrator at the time, it will be supported, unless it be apparent that it was upon collusion and not for the benefit of the estate. “ It is prima facie good, being presumed that the advance is to enable the executor to pay the debts.” — M’Leod v. Drummond, IT Yes. 154. Here there was no advance, but the bonds were assigned to be collected and applied to M’Nish’s antecedent debt. “ This is very material,” says Lord Eldon, in M’Leod v. Drummond. Longworth well knew that the funds were not to be applied to any of the trusts of the will, and this, Lord Eldon, in the same case, considers one of the strongest proofs of “fraud and collusion.” If one concerts with an executor to obtain the testator’s effects and apply them to his own behoof, or in ex-tinguishment of the private debt of the executor, or in any way contrary to the duty of the executor, such concert will involve the seeming purchaser and make him liable. — Scott v. Tyler, 2 Bro. Ch. Rep. 431; see also 2 Yern. 444; 1 Bro. Pari. Ca. II. And in Downes v. Power, 2 Ball and Beatty, 491, it is said, “ Whoever deals with an executor for assets for a purpose inconsistent with due administration, subjects himself to a devastavit. See also Hill v. Simpson, 1 Yes. 152; Bonney v. Ridgard, 1 Cox’s Ch. 145; Field v. Schieflin, I John. Ch. Rep. 150, to the same effect. The whole doctrine is strongly and concisely stated by Mr. Eden, in his note to the case of Andrew u. Wrigley, 4 Bro. C. R. 131.</p> <p>It is urged that the equities are equal; and that being the case, the law must prevail. They are not equal. The plaintiffs were infants, ignorant of their rights and confiding in their father’s executor. The defendants knowing these funds to be theirs, concerts with Mm to misapply them. If he should sustain loss, it will be from Ms own wrongful appropriation of funds he knew to be of right the plaintiffs’. Nor is he so free from “ artifice and design,” as he is represented.. Why take a receipt lately, dated back in 1823 ? To supply the one which he lost? M’Nish says he gave none then.</p>

<p>The doctrine of waste, as applicable to this country, considered. [*281]</p> <p>After the division of an estate and the appointment of a guardian for a minor legatee, the executors are no longer accountable for the income of the estate assigned to the minor; his guardian is alone entitled to possession of the estate, and must account accordingly. [*284]</p> <p>When from the facts, an executor who was also guardian might be charged with the receipt of monies either as executor or guardian, he must account in the latter character; for whatever funds he had in his hands as an executor, were by operation of law, transferred to him as guardian. [*285]</p> <p>A parol discharge of a guardian by his ward just after coming of age, without an account, will not bar an account against the guardian, £*286]</p> <p>The security of a guardian is liable for the default of his principal, to the amount of the penalty of the bond, and not merely to the value of the property set out in the petition praying the appointment. [*287]</p> <p>A father, as such, has no right to receive a legacy of his child: and therefore where an executor paid a legacy to the father of an infant legatee, and afterwards on the demand of the legatee’s guardian, his co-exeeutor paid it to the guardian, the last payment was held proper and that the executor who made the first, was liable to the estate for his improper payment. [*288]</p> <p>Nor will the fact that the father of the legatee was a co-executor be an excuse; for although executors are primarily regarded as only separately liable, yet, if they concur in any act touching the estate, they are jointly liable. [*288]</p> <p>Liability of co-executors for the acts of each other considered and the cases on the subject examined. [*289]</p> <p>The result of the cases seem to be 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 he answerable for the latter in the same manner as for a stranger whom he had enabled to receive it, and there is no distinction in respect to their liability, between legatees and creditors. [*293]</p> <p>An executor who applied to the ordinary for an order of sale and returned the sale bill held liable for the amount of the sale, although his co-executor assisted in the sale and received part of the money. [*295]</p> <p>Cases decided in this State in relation to waste committed by tenants for life and tenants in common. [*296]</p> <p>Where a tenant in common by cutting down and clearing wood land beyond his interest injures his co-tenant, he is liable for waste; and so too if a tenant for life cut down more than is necessary for the enjoyment of his estate and injures the remainder, he is guilty of waste and liable to account. [*296]</p> <p>Tenant for life in right of his wife of land and slaves, with remainder in fee of one-sixth in the land after her death, cleared out wood land in the centre of the tract, not leaving sufficient timber to repair the place: — Held, that if there was open land sufficient for the employment of the wife’s slaves when the husband got possession, the clearing by him was waste. [*297]</p> <p>Rent and hire to which plaintiffs were entitled under a former decree set out in this bill, now allowed. [*297]</p>

<p>Testatrix devised to her grand-niece, viz: “one thousand acres of land, to be taken off my plantation called Good Hope, to be run off conveniently adjoining the place called Cave Hall late the property of W. C., which said plantation, called Cave Hall, shall be purchased and paid for out of my estate, and shall be given to my said grand niece, making in all fourteen hundred acres:” — Held, that this was a devise of the whole plantation called Cave Hall although containing one thousand five hundred and fifty acres, or its equivalent; and the executor was ordered to make the purchase for the benefit of the devisee. [*302]</p>

<p>The testator, John Frazier, by his will, dated 14th October, 1824, directs all his estate, real and personal, except his negroes, to be sold on twelve months’ credit or a longer time, if the executors should think it better so to sell: the proceeds of the sale, and, the money due to the testator at his death, were to be divided among his executors to be severally managed by them; and they were to retain to their own use all that they could make over the legal interest from the said funds. But out of these funds the testator’s widow was to be comfortably supported during her natural life. She was to have the use of one or two of the testator’s slaves during life to *wait and attend on her “ own proper person. ” The other slaves were directed to be hired out during the lifetime of the widow. After the death of the widow, the testator directed the balance of the funds of his estate arising from the sales of his land and the personal estate and money due to him at his death, which" might be left after maintaining his wife during life, to be divided between James Frazier, John M. Frazier, James Jetter, John Livingston, John Frazier, son of Benjamin, -and John Gomillian, subject to a contribution from this fund to make up the sum of §100 for each of his negroes, if the fund arising from their hire should be insufficient. The will then proceeds, “ as respects the hire of my negroes, it is my will for my executors to hire out my negroes and see that they are treated well and not abused. It is my will that the money arising from the hire of said negroes be equally divided among my executors as the before-mentioned part of my estate, only the money arising from the hire of my negroes to be kept entire and distinct from the other part of my estate before-mentioned; and after the decease of my wife, Nancy Frazier, it is my will and desire that-the whole of my negroes be set free by my executors, and the amount of money arising from the hire of the said negroes be equally divided among the said negroes; and if the hire does not amount to one hundred dollars each, that it shall be made up to them out of the other part of my estate before-mentioned: the interest of the money is to enable them, with the assistance of government, to go to St. Domingo to be colonized, or to any part that they with government may choose.”</p> <p>The testator appointed John S. Jeter, Benjamin Frazier, and James Jeter, executors. The two last named qualified. By a codicil, dated 4th February, 1825, the testator directed that if his man slave, Isaac, would pay to his executor §600, that he, his wife Lively, and his daughter Haily, “ shall be set free to enjoy liberty foreverand that if his negro boy, young Isaac, should wish to be set free, that upon the payment by him of $650 to the executors, he “shall be set free and enjoy liberty forever more. ”</p> <p>The testator' died shortly after the execution of his codicil, leaving a widow but no issue. The widow died in 1832, and shortly after Benjamin Frazier, one of the executors, seized the negroes, with the view of carrying the will into effect.</p> <p>This bill was filed by the next of kin of the testator, claiming, amongst *3061 ot^er things, the negroes and an account for their hire, *on the J ground that the provisions in regard to them were void, as being contrary to the policy and laws of this State.</p> <p>The case was heard at Edgefield, June, 1833.</p> <p>De Saussure, Chancellor. The questions which arise for the present consideration of the Court, are :—</p> <p>1. Is the bequest as to the freedom of the slaves valid and effectual ?</p> <p>2. If not, who are entitled to them ?</p> <p>On the first question I have no doubt: our statute forbids the emancipation of slaves, and declares the act null and void. An argument was set up for the defendants, which was urged with great ingenuity, and applied with great talent. It was, that although the statute forbade direct emancipation, it did not forbid a direction that the slaves should be sent abroad, and there emancipated ; and that a direction to the executors to do so, raised a. trust in them, which they were bound to fulfil, and the Court would enforce it. Upon considering this argument, I am inclined to think it cannot be sustained.</p> <p>The statute is founded on deep policy, and was intended to prevent emancipation of slaves as a great political evil, dangerous to the institutions of the State, and injurious to the property and interest of the citizens. I am aware that a statute is not to be enlarged beyond a fair and reasonable construction of its words 'and provisions, in order to give effect to some supposed recondite meaning. But Courts are bound to look to the real object of a statute, and to give it effect, if the meaning be obvious and the provisions of the statute sufficient to cover the meaning. In the case before us, it is quite obvious, the object and intent of the Legislature was to prevent the emancipation of the slaves held in the State. A direction to others to do what the owner is prohibited from doing cannot be permitted to defeat the prohibition. Such an easy evasion would be making the statute a mere cobweb. The frailty of the argument was felt by the counsel, who therefore endeavored to sustain it by saying the executors might and were bound, as trustees, to carry it into effect, by sending the slaves out of the State, and there emancipating them, which would be effectual. What effect a will, which directed slaves to be sent out of the State and there emancipated would have, need not be now decided in this case, for the direction to the executors is simply *to emancipate, which I take to be clearly against the statute, and null and void. >- It is true that after the direction to set the slaves free, a clause is inserted providing a fund for them, which was to enable them, with the assistance of the government, to go to St. Domingo, to be colonized, or to any part that they and the government may choose. This provision is an incidental one, and not a direct order to make an application to the Legislature for permission to liberate the slaves and send them abroad.</p> <p>The liberation is not made conditional and dependent on the will of the Legislature to confirm the emancipation. It is an absolute direction to the executors to emancipate, and then to get the assistance of the government to be colonized at St. Domingo or elsewhere. I consider the direction to emancipate null and void : and the rest of the provision depended on that. Besides, what government is meant ? If the State government, that has no foreign relations with St. Domingo, or any other power or dominion by whichfit could give its assistance. If the government of the United States be meant, assuredly neither the State nor its authorities, nor any of its citizens, would ever permit the interference of that government with that subject, on which the government of the United States has no right to intermeddle, and on which, if it made any attempts directly or indirectly, a disruption of the bonds which bind and unite the States, would necessarily take place. It is the noli me tangere subject. Any intermeddling by the government would be the immediate death of the Union (however valued and cherished on other grounds) by the general consent of the citizens. If the executors choose to apply to the State Legislature, they may do it. But till that be done, and a decision be made by that body, I feel myself bound to consider and treat this direction to executors to emancipate slaves as an attempt to evade‘the statute, and merely null and void. Consequently the slaves attempting to be emancipated, remain in their former condition, slaves. 2. The question then arises, who are entitled to these slaves ? Three claims are set up: — 1. By the executors. 2. By the residuary legatees. 3. By the nearest of kin.</p> <p>His Honor then went into an examination of the several provisions of the will, and on its construction held that the next of kin were entitled to the negroes and their hire, and decreed accordingly.</p> <p>*3081 *Jh’om this decree the defendants appealed on the ground :— -* That the negroes are effectually' disposed of by the will; and the trust reposed in the executors to remove and emancipate the negroes, is not in violation of the laws of this State.</p> <p>The negroes are not emancipated by the will — there is a mere direction to the executors to remove them out of the State, and set them free. The will was executed in 1824; and the legal presumption is, that this was done with a knowledge of the existing laws against emancipation in the State; it had reference therefore to emancipation beyond its limits. Is the bequest void according to this construction ? The Court has no right to control the actions of its citizens without the State. If the executors now asked leave of the Court to remove the negroes for the purpose of emancipation, it would be a different question ; perhaps in such case, the aid or interference of the Court would be refused. But the aid of the Court is not asked — all that is required, is to leave the executors uncontrolled — and they will, according to their oaths, perform the trust imposed on them by the will. The trust is not, as has been said, void, for it is not in violation of either the express letter, or intention of the law of this State. The Act of 1820 is the only statute having any application to this subject. It is manifest from the preamble of this act, that the mischief intended to be remedied, was the emancipation of slaves within the State. There is no attempt here to evade the act; but, in fact, a plain direction to the executors to conform to it — not to attempt its violation, but with certain funds set apart for that purpose, and with the assistance of the government, to remove the negroes to St. Domingo, or to any part that the government may choose, where they might be lawfully emancipated. As the State has no foreign relations, and the government of the United States cannot interfere in this subject, the executors or the negroes themselves may choose the place of their removal. In Young v. Sylvester, 1 Bail. 632, it was held, that but for the act’ of 1820, which was passed after the death of the testator in that case, the executors would have been compelled to emancipate according to the directions of the will. If then the provisions of this act do not reach this case, the executors here may be compelled in like manner to carry the trusts of the will into effect. The testator, in his lifetime, beyond all *3031 question, could have removed his negroes to *St. Domingo, or -* anywhere else, and have emancipated them. The Legislature neither could impose restrictions on his rights in this respect, nor so intended. If he had such rights in his lifetime, could he not delegate them by will to his executors ? What prevents ? The executor is the representative of his testator, invested with all his legal rights — he is -in law the owner of the chattels, and may dispose of them, or do any act in relation to them not prohibited by law. If the executors in pursuance of the will had removed the negroes, would the Court have held them accountable ?</p> <p>The law of the domicil governs the disposition of personal estate, and the Courts of another State are bound to notice and enforce it. Suppose the testator had lived and died in Georgia, and by his will had given directions to his executors to hire out his negroes in South Carolina during the life'of the widow, and at her death to take them back to Georgia, and there set them free. In such case, the executors would not only have the right to perform the trust, but the Courts of this State would be bound to compel its performance.</p> <p>on the same side. It seems to me that this case may be discriminated from that class of cases embraced in the act of the Legislature prohibiting emancipation. It will be seen that the will does not directly emancipate the negroes, but directs the executors to do it. Now, it is said in the decree that it would be an evasion of the law to allow one to do by the agency of another what he could not do himself; certainly it would. What is the conclusion from this admission ? Why, that the executor could do whatever his testator could. Now the testator could not emancipate the negroes in this State, therefore his executors could not emancipate them in this State; and a provision that they should do so would be void. But on the other hand, the testator could have removed them from the State, and then have emancipated— so can the executor; and a bequest directing the executor to do so would be good. Suppose the bequest had been an explicit direction to the executors, to take the negroes out of the State, to some State where emancipation was tolerated, and there to manumit them. What law of the State, or what policy of the State, would be thereby violated ? Would the letter of the law be violated ? And let it be remembered that this is a statute in restraint* of the rights of the citizen, and therefore r,.»,. to be strictly interpreted, and not extended by construction. Its L prohibition is against emancipating in this .State — there is no prohibition against removing them out of the State, nor any against emancipating them after they are out, nor could there be. What is the evil intended to be prevented, if even the Court will look to that with the view of extending the words of the law ? not the removal of slaves ; for on that subject there would be much diversity of opinion — at all events, no legislative prohibition has been, or ever will be enacted against it. What considerations of policy are there to influence the State, to desire to prevent emancipation in other States ? With the domestic institutions or policy of other States, we are in no way concerned, and have no sort of right in any way to interfere. The evil intended to be remedied was the accumulation of free negroes residing amongst us, from the acts of emancipation of their owners. This was all that the State had any interest or power to prevent. The master had the power to remove his negroes— why has not the executors ? Suppose the bequest had been, that his executors should remove his slaves to Alabama to plant cotton — surely it would be good. Suppose in the violence of our opposition to the tariff laws, all manufactories of cotton goods in the State had been prohibited under the severest penalties — a bequest that his executors should establish a cotton manufactory in the State, and employ his slaves as operatives, would have been clearly bad. But if the bequest had been that the negroes be taken to Georgia, (where there would be no such law) and there thus employed, the bequest would be good. The laws of this State prohibit gaming, and the keeping of gambling-houses — a bequest to the executors to establish such a house, and employ his capital and slaves in the establishment, would be void. But I apprehend, that if the, bequest had been to the executors, to take the property to Louisiana, and there establish a gaming-house (where such things are legalized) that the bequest would be good. A bequest that they be tafepn there, and the proceeds of their sale or of their hire invested in the Commercial Bank of Louisiana would be good Why not equally good if the bequest were, that they should be thus invested in stock in a faro-bank which is there lawful; and in which, to my knowledge, men of large fortune, who never see the game played at all, invest their money as a profitable investment ? It is there lawful, and deemed as fair an investment, and as fair a risk, *to put their money upon the issue whether an ace or a -* deuce will be the next card turned up, as whether a house will be burned down in a given time, or a ship going to sea will reach its destination in safety. Here our notions of morals and-of policy are different, and I think wisely — we have the right to declare what shall be lawful, and what not, and a provision for an unlawful purpose is void ; but we have no right to say what shall be ,done with property the moment it passes beyond the control of our laws, and as certainly none to prevent it from passing beyond that limit. The testator had a right to remove his negroes to Alabama to make cotton, or to New York to make freemen — and he had a right to have appointed an agent in his lifetime, to have done the same thing; and I cannot see why he had not a right to appoint an executor to do the same thing after his death. The executor is in fact strictly the agent of the testator — the agent to execute his wishes after his death; as an attorney in fact is the agent to do the same thing whilst he is alive.</p> <p>I think it cannot be denied, that if the testator had expressed in so many words his wish that his executors should take his negroes out of the State and emancipate them, that it would have been a valid bequest, as not conflicting with any provision of the law, nor with any considerations of public policy. Has he in fact expressed such an intention ? For if he has, and that intention is conveyed by the words used, it is sufficient. It seems from the will, that the testator was aware of some legal impediment to emancipation in the State — he does not emancipate himself, but directs his executors to do it. Are we not then to presume, 'that knowing the difficulty, he intended to guard against it ? And when he creates a trust, that he intended as far as in him lay to give all the powers which were necessary to enable his trustees to execute it ? One of those powers was, that they be taken out of the State. And this was not an independent and separate provision, but necessarily connected with the other. They were not to be set free immediately, but at a remote time; until that time, to be hired out, and that not for the benefit of any one else, but solely for the purpose of raising a fund to take them out of the country — for the fund arising from their hire was to be kept separate. If the bequest had been that they should be sent to New York, and then sent to Liberia, it would have been good — is it the less *3121 g°°d because there are inserted the words that they *are to be set -1 free ? Where set free ? In this State ? What is there to show it ? Nothing — but much to show the reverse. I will not contend that a general direction to set free would mean a direction to set free out of the State — but admit that, in the absence of any other words, such a provision would be construed as intending to set free in the State, and therefore void; still I do contend, that there is indissolubly connected with the provision to set free, a direction to send out of the State; and that the order in which the two things are stated in the will, or rather in the same sentence, is in no wise material — and that, to say that they be set free and sent to Ohio, is the same precisely as to say, that they be sent to Ohio and set free: and the more especially will the expressions be regarded as convertible, when by such construction alone, can the purpose of the testator be accomplished.</p> <p>The construction contended for is, that this is a bequest to remove the slaves to St. Domingo or elsewhere, settle and emancipate them. Conceding this to be the true interpretation of the will, how is it to be enforced ? At whose instance ? In contemplation of law, slaves are chattels, things — they have no civil rights; can hold no property, nor maintain a suit, in Court. Should the executors refuse to perform the trust, there is no one authorized to compel them — the Court cannot interfere but in the regular course of proceedure at the instance of the cestui que trusts, and they cannot be recognized as parties, or regarded as having any rights. To entertain a bill at their instance, the Court must recognize persons unknown to the law, and actually confer rights on mere chattels. The case is totally different from a devise to charitable uses in mortmain; for there is no one here capable of complaining to the Court. If then the Court is wholly powerless to enforce such a bequest, the bequest itself must be void. For it would be a solecism in terms, to say that the bequest is valid, the trust is good, without the means of enforcing it — a right without a remedy.</p> <p>But the construction contended for on the part of the defendants is not the true one. It is not, according to the will, a bequest to remove, and then set free; but first to set free, and afterwards to remove them to St. Domingo, or elsewhere, with the assistance of the government, to be colonized. The words,are, “after the decease of my wife, &c., it is my will and desire, that the whole of *my negroes be set free by r^g-. g my executors,” &c., and then follows the direction to give them a ■- hundred dollars each, to “ enable them to go to St. Domingo, &c.” There is no direction here given to the excutors to remove them before emancipation — it must take place here. The negroes were to receive each a hundred dollars; before they could receive the legacies, they must be emancipated — as slaves, they are incapable of taking. Whatever ambiguity there may be in the will, there is none in the codicil: that directs that certain negroes, on the payment of certain sums of money, shall be set free; and this is an absolute, and not a mere directory bequest — not a direction to the executors to remove and emancipate, but a positivfe bequest of freedom here ; and goes to show that such was also his intention in the will, in regard to all his negroes, after his wife’s death — the future destination of the negroes is purely matter of advice.</p> <p>The aid of the government, too, is to be obtained, and the consent of St. Domingo to receive these negroes. These are serious difficulties to the fulfilment of this trust, independently of the act of 1820; but that act utterly prevents it, by declaring emancipation illegal. The seizure by tlfe executor could not avail. Young v. Sylvester, 1 Bail. 632. The bequest being void, the interests of the next of kin attached, and they became entitled to possession after the widow’s death, and the executor must hold for their benefit. In Walker v. Bostick, 4 Eq. Rep. 266, it was held, that a bequest of a slave to a trustee with directions to liberate, was an attempt to evade the law, and void; and a legacy to the slave was declared void, and fell into the residuum of the estate. — See also, Chapman & Brown, 6 Yes. 403. As to the argument drawn from the law of the domicil; the law of the domicil is to prevail generally, but not where the rights of the State and her public policy is concerned, and would.be affected by it. 3 Dallas, 310; Dixon v. Ramsay, 3 Cranch, 319.</p>

•Before Chancellor Johnston, at Abbeville, June, 1814. Held: by the Commissioner subject to the liens of claimants ; and this order was made on the suggestion of this plaintiff’s claims. The house and lot and mill tract were sold for $2400.

The testatrix’s estate at her death consisted entirely of personalty; for the land mentioned in her will, was (as it appeared by the statement and admission of counsel,) Indian land, which is held on long leases, and is therefore a chattel real, and assets in the hands of an executor or administrator for the payment of debts.

The following is the brief of the appellant’s counsel:— Bill for injunction, to cancel a bond, and for general relief. The bill charges, that in the year 1818, there was a Manufacturing Company on Tiger river, called the “ South Carolina Cotton Manufacturing Company and, in that year, some of the members of the company applied to the plaintiff to borrow about three thousand dollars.

Fairfield, July 1834. De Saussure, Chancellor. The petition by the defendant, Mr. Pickett, is for a re-hearing.

Heard at Barnwell, February, 1835. This was a bill for an account of the defendant’s administration and management of the estate of his testator; and came on for a hearing upon an exception filed by the plaintiffs to the Commissioner’s report upon the accounts. The single question involved in the exception, and decided by his Honor will be sufficiently understood by his decree. De Saussure, Chancellor.

Before Chancellor Johnston, at Marion, February, 1835. Bill for account and partition. The only question made in the case was in relation to the real estate of the intestate, under the following facts, reported by the Commissioner: “ That Joel Ridgell, the intestate, lived and died in Marion district, and Philip Bethea administered on his estate there.

Before Chancellor De Saussure, at Barnwell, February, 1835. The bill alleges that George Bruton, the father of the plaintiff, Elizabeth, died intestate, possessed of a valuable plantation and several slaves and other property, leaving a widow, and this plaintiff, his only heirs at law; that some time after, the defendant, De Witt, married the widow, and administered on the estate; and was appointed the guardian-in-chief of the plaintiff Elizabeth, then an infant.

At Sumter, February, 1835. This bill was filed against the defendant, as executrix and sole legatee of Mrs. Anne Chewning, alleging that the testatrix, in her life time, for a valuable consideration, gave the plaintiff her promissory note for $650, payable to him or bearer, at ten days after date, and dated in September, 1832.

<p>A bill by trustees to marshal assets and calling in creditors, after decree made, directing money to be paid in and creditor’s claims established, will not be dismissed at the instance of one of the plaintiffs, his co-plaintiff and the creditors objecting. [*377]</p>

<p>Charleston — January, 1832.</p> <p>The following decree of the Chancellor presents a full statement of the case:—</p> <p>De Satjssure, Chancellor. John Fable, a foreigner, settled in Charleston some years ago, and acquired some property, of which *a [*3T9 house and lot in the city constitutes the principal and most valuable part. He had two (illegitimate) colored children by a female slave. Before his death, he made and duly executed his last will and testament, on the 24th June, 1831, by which he bequeathed as follows: — He desired his personal effects to be immediately sold, and out of the moneys arising therefrom, he directed his debts and funeral expenses to be paid. If that fund should not be sufficient, then the executor might sell any other of his property, to satisfy all claims justly due and unpaid out of his personal property. He bequeathed a legacy of $100, to be divided equally among the children of his brother, Frederick. He then says : “ The residue of my property I will and bequeath to my children, whom I acknowledge, to be divided share and share alike — whatever real estate I am now possessed of, it is my will that it should be sold, and the proceeds vested in any public stock of this State, or of the United States. The interest arising from the stock so invested, to be appropriated to the support of my son, John, and daughter, Elizabeth, at the discretion of my executor, whom I constitute and appoint as the guardian of the said John and Elizabeth. It is further my desire that my executor will purchase, if practicable, my son, out of the funds of my estate, previous to a division of the same.” The testator appointed Mr Alexander Brown, the executor of his will. He died not long after, and Mr. Brown proved the will and qualified thereon as executor. The legatees are living. Both the children are in servitude, and held by the same owner. The personal estate, it is said, will pay the debts, and perhaps leave some surplus. The plaintiffs claim to be the next of kin of the testator, and claim his estate as distributees thereof alleging that the provisions of the will in favor of the illegitimate colored children of the testator, who are held in slavery, cannot lawfully take effect, and therefore as the property is not well and effectually disposed of, the plaintiffs are entitled thereto. The defendant, the executor, resists the claim of the plaintiffs on the ground that the plaintiffs have not sufficiently established their relationship to the testator, or that they are the only persons in the degree of relationship which entitles them to the distribution of the estate supposing it distributable. The evidence, I think, establishes sufficiently that the plaintiffs are the relations entitled to distribution, if there be any distributable estate. The evidence of Mr. Abraham Buchan, as delivered in the Court, is clear, that *he r^oon knew John Fable fifteen years before his death. He heard him L say that he had a brother named Frederick, in Philadelphia, and two sisters, his only relatives in this country; he did not say that he had any other relatives. Witness knew all the family. There are no more of them. Both sisters were named. One of them died before her brother, leaving two children. John Fable died in July, 1831. The depositions, which were read but not delivered to me, are not so clear as to the relationship. But there is sufficient before the Court to go on with the cause. Some of the plantiffs are entitled, if there be anything for distribution, and further inquiries can be made as to that point, if it should be -found necessary. Another, and the most important objection to the recovery of the plaintiffs, is that the property of the testator is effectually disposed of by his last will and testament, and there is nothing undisposed of which remains to be distributed to the next of kin. The executor, being desirous to perform the duties imposed on him, by the will of the testator, in his answer submits the following questions to the Court for its direction :— '</p> <p>1. Whether he is bound or at liberty to purchase the boy, John, (his mistress being willing to sell him) out of the funds of the estate, and to divide the residue of the estate (if any) between the said children, John and Elizabeth ; and to sell the real estate and vest it as directed by the will, and pay over the income arising therefrom, at his discretion, to the said children of testator.</p> <p>2. Whether he is' bound to pay the residue of the personal estate, (after payment of debts and legacies aforesaid) and the income of the stocks to be purchased with the proceeds of the real property to the owner of the said children (John and Elizabeth.)</p> <p>S. Whether he is not bound to pay over the whole residue of the personal estate, to the said owner of the slaves.</p> <p>The questions involved in this case, are certainly important and difficult, and were so considered by the bar in the argument, though they were not as fully argued as is customary with the gentlemen of the bar. There is one point, which it is as well to put out of the way at once.— Our statute prohibits emancipation — there is no attempt at emancipation in the will we are considering. It leaves one of the colored children of the testator in slavery to the present owner. It directs the executor to purchase the other child from his owner. But it does not direct his emancipation. The executor is bound to purchase him, and *he J must take the bill of sale, or title deed to himself. This is no - violation of our statute, and can, and ought to be carried into effect. In what way he shall treat the boy, and how employ him, is for his own discretion, in which the testator had unbounded confidence. We are next to consider the question, whether the dispositions in the will respecting the property can, or ought to be carried into effect. The executor may certainly sell the property as he is directed by the will — the difficulty is, will he be justified or permitted to apply the income arising from the sales, for the support of the slaves, according to his discretion, as directed by the testator. The objection may come from two quarters. The plaintiffs may, and do contend, that the property, or the proceeds of it, is not so legally disposed of by the will as to be effectual, consequently it is undisposed of; and that whenever a legacy is so given that it cannot take effect, it sinks into the estate, and is distributable. It may be further contended, and it was so argued at the bar, that if those legacies could not be effectual for the slaves, they would take and hold for their master or mistress; and that would defeat the plaintiffs’ claim. On the first point, the plaintiffs relied on a decision made by me twenty years ago, and reported in 4 Eq. Rep. 266, Executors of Walker v. Bostwick & Walker. In the report of that case, the devises and bequests are not set forth. But it is said, the principal question made in the case, was whether the devises and bequests of real and personal estate made by the testator, Joseph Walker, to trustees in trust for his slave, Betsey, and her three children, are valid devises, and can take effect. There was a bequest of freedom to those slaves, which failed. The judge was of opinion that the legatees, being slaves, were incapable of taking such devises under the will, and therefore the legacies sunk into the estate, and were applicable to pay debts, &e. In that case, the estate was greatly embarrassed, and there was no tittle of anything left. The point was not very fully argued, and there was no appeal. Reliance was placed on one authority, that of Taylor’s Elements of Civil Law, (429.) (See also Cooper’s Justima, 411,) by which it is laid down that, by the civil law, slaves could not take property by descent or purchase; which was considered to be the law of this country.</p> <p>Mr. King, in his argument for defendant, in the case we are now considering, contended that the argument laid down by Taylor, *is r^ooo not sustainable unqualifiedly by the authorities, and that even if L the slave legatee cannot hold for himself, he may take and hold for his master — and that would be sufficient to defeat the plaintiffs, and it would be for the master afterwards to decide what use he would make of this advantage. There is certainly considerable difficulty in this, and other questions which arise out of the conditions of slaves. Our statute considers them as chattels, yet, in many cases, they are treated by our laws as persons, and reasonable persons accountable for their actions. They are punished for crimes, which chattels could not be. It is their equivocal condition which creates the difficulty. It was argued, that by the civil law, persons capable of being executors, are alone capable of being legatees, (Domat, 143,) and that slaves cannot he executors by our law. This is true. But I am not sure that the civil law rule would apply iu all respects to the condition of our slaves ; at least I would not venture to pronounce upon it until the case arose, and it was fully argued. I am rather inclined to think that the will of the testator can be carried into effect in this case, without deciding the refined questions which have been made in the argument. I put out of the case the directions, as to the personal property, because-it was stated and understood that the personal estate would scarcely do more than pay the debts, and the legacy of one hundred dollars to the relations of testator. The real estate is directed to be sold, and the proceeds vested in stock, and the interest to be appropriated to the support of the testator’s son and daughter, at the discretion of the executor. The direction to sell the estate is not against law. The direction to invest the amount of sales is not prohibited. Is it against law to direct the executor to apply the income to the support of two slaves ? There is no direct prohibition by any statute ; it is only-by inference from their condition, that such prohibition can be presumed^ to arise. But suppose the testator had directed the executor to expend one hundred dollars annually, in support of a favorite old horse, for past service, would not the executor be justifiable in doing so ? Would he not be bound to do so, in order to give effect to the will ? If he did it, and the charge appeared in his accounts, could his distributees or residuary legatees legally object to it ? I think not. Upon the whole, therefore, I am of opinion the executor may, and ought to give effect to the will in this case, and that the plaintiffs *claiming to be dis’tribu- r*ooq tees, are not entitled to call the executor to account for perform- <- ing the will of the testator on this subject. The owner of the slaves is not before the Court; and if she has rights, they are not now in question.</p> <p>It is therefore ordered and decreed, that the bill of the plaintiffs be dismissed, but without costs. I would desire that an appeal should be made.</p> <p>The plaintiffs appeal from the decree of the Chancellor, upon the following grounds:</p> <p>1. That by the laws and statutes of this State, no slave is capable of acquiring a title, either at law or in equity by descent, or by purchase, to any property, real or personal.</p> <p>2. That the bequest and devise to the slaves, John and Elizabeth, in the present case, are null and void, by reason of their incapacity to take ; and that the property thus disposed of, is distributable among the plaintiffs, as next of kin.</p> <p>3. That as a slave is incapable, under our laws, of acquiring a title to property, the owner of the slaves in the present case cannot be permitted to claim a title through the said slaves.</p> <p>4. That the civil law on the subject of slavery, is not the law of this State; that this subject is under the exclusive regulation of our own statutes, and that the decision of the Chancellor in the case of Walker v. Bostwick, in 4 Eq. Rep. 266, is in strict accordance with the laws and policy of this State.</p> <p>5. That if by possibility, said bequest and devise could be allowed to take effect, it would be only as to the income from the residue, during the life-of said John and Elizabeth, and at the expiration thereof, the property itself would pass to the plaintiffs.</p> <p>6. That the negro John, if purchased by the executor, will constitute a portion of the testator’s estate, and be distributable among the plaintiffs, as the next of kin.</p> <p>The devise to the testator’s children, who are slaves, is null and void ; for a devisee must be a person known in law, and capable of taking. Slaves are not recognized by our laws as having any rights, and they are incapable of taking and holding property. Walker v. Bostick, 4 Eq. Rep. 266.</p> <p>Is that case law ! On this question, we must look only to our own *3841 *Pecu^ar C0(ie, differing both from the civil.and common law in J many particulars. The civil law, which recognizes the condition of absolute slavery, may be looked to for explanation, but it is not binding 'as authority. The Act of 1740, P. L. 163, declares slaves to be chattels personal “to all intents, purposes, and constructions whatsoever.” How then can a chattel have rights, or hold property ? Or how can a slave enforce his' right ? He is incapable of maintaining a suit. Is there any authority for exempting a slave from the general disability which his character of chattel imposes ? There is none. For some purposes, they are regarded by the Act of 1140, and other statutes, as persons — that is, in relation to crimes, — their moral responsibility is recognized for the safety of society; but as regards civil rights, they are mere chattels. By the civil law, whatever the slave acquires by bequest or otherwise, belongs to the master. Just. Lib. ii. Tit. ix. § 3, 4. Does this rule become a part of our law ? By the same law, a slave could be an executor, 2 Domat, 143. He could make contracts, Just. Lib. iii. Tit. xviii. He could trade, and hold his peculium, Just. Lib. iv. Tit. vii. § 4. The slave of the civil law was a white man, and when emancipated, became a citizen; whilst here emancipation is expressly prohibited, and those already emancipated, are denied many civil rights. The civil law rules have not been adopted in this State ; for in the case of Sally, 1 Bay, 258, it was held in opposition to the civil law, that a slave might by her acquisitions purchase the freedom of another, and the purchase did not result to the use of the master ; the same doctrine was held in Gregg v. Thompson, 2 Con. Rep. 31. The 34th clause of the Act of 1740, subjects property in the hands of a slave to forfeiture. (See also Blake v. Clarke, 3 M’C. 279.) It appears then from our statute law, and the decisions of our Courts, that the civil law does not apply here, at least, as having any binding authority. And although the common law was adopted generally, the ancient tenures were excepted; and the doctrine of villenage does not apply to the condition of slavery here; for at common law, the villein had civil rights against every one except his lord. Coke, Lit. 123, b. 124, a. 118, a. And he might acquire real or personal estate, and if aliened before seizure, the lord could not avoid the sale.</p> <p>But conceding the devise to the slaves to be valid — can it extend beyond a life estate? For they can have neither heirs, nor *executors. i-^ook And if the executor should purchase John, would he not become L the property of the estate ?. 2 Fonb. 118. When an estate is devised on trusts which cannot be carried into effect, the trusts result for the benefit of the next of kin, 1 Mad. 61; 4 Yes. 433 ; Morice v. Bishop of Durham, 9 Yes. 399 ; Gibbs v. Ramsey, 2 Yes. and Beames, 294.</p> <p>Can the Court sustain the direction to the executor, to maintain the slaves ? How is this practicable ? Or what right has the executor to interfere in any way with the slaves of another, even by maintaining them ? But at all events, the direction cannot extend beyond their lives, and a trust in the fund must then result for the next of kin. Geiger v. Brown, 4 M’C. 427.</p> <p>Slaves had long been recognized by our laws before the Act of 1740, but wherever that Act prescribes a rule in regard to them, it is imperative; it does not, however, materially conflict with the civil law in relation to slavery. We have the authority of this Court for saying that the civil law does apply to the condition of slavery in this State, in the case of Wingis v. Smith, 3 M’O. Rep. 400. Slaves are property, and are called chattels in the Act of 1740, but merely as giving character to this species of property, and in contradistinction to realty. The Act was not intended to alter their condition, or to deprive them of any privileges which they had before, except in those particulars enumerated therein. Under the Act, a slave may hold any property, except as there expressly prohibited. And if he cannot hold for his master, what security is there for property ? Although chattels, they are human beings, and the objects of benevolence. The master has not absolute dominion over his slave, for he is protected by law in the enjoyment of life.</p> <p>It does not follow because the slaves cannot maintain a suit to enforce the execution of the trust, that it is void. An outlaw or an alien enemy may be a legatee, notwithstanding he cannot sue. 3 Bos. & Pul. 113. So a legacy to an infant in ventre sa mere is good, although no suit can be brought immediately, To make the trust void, it must appear that.it is prohibited by law ; and although there may be no one capable of enforcing the trust against the executor, if it be not prohibited, its execution may well be left to himself. Is the trust to maintain the children prohibited ? By what law ? It may be impolitic, but it is not, therefore, illegal. A trust to support bastard children may be very impolitic, but *neyertheless good, and will be enforced. So devises to charitable uses, but before the statutes of mortmain they were good.</p> <p>Slaves are not absolutely incapable of taking property. They may acquire and hold for the benefit of their master. Suppose a slave find money ; cannot the master claim it against all the world, except the owner ? Suppose a slave saves something from a wreck, cannot his master libel for the salvage ? In the case of the brig Ariel, salvage was allowed to a slave, as a person.</p> <p>There is no action at law for a legacy. It is given to the executor in trust to execute the testator’s intentions, and if these are contrary to law, a trust results in favor of the next of kin.</p> <p>Cases are cited on the other side to show that if the property be not effectually disposed of, a trust results for the next of kin ; but there is no question that the estate here is effectually disposed of, for if the slaves, as such, cannot take, their owner can, and is entitled to the legacy, both by the civil and common law. The civil law has been held to be more directly applicable to their condition ; and it is conceded that if it applies to this cstse, the owner is entitled to the legacy.</p> <p>on the same side. The plaintiffs are citizens of a non-slaveholding State, seeking to entail slavery on the children of their brother. So far, then, as the mere justice of the case is concerned, they have no claims on the Court.</p> <p>Can the slaves, the children of the testator, take under this will ? There is no statutory provision prohibiting them; and the case of Walker v. Bostick, 4 Eq. Rep. 266, is anomalous in its character, and unsupported by authority. As there is no statute, the common law is the only law which can apply to the case.</p> <p>The Act of 1112, making the common law of force in this State, excepted the ancient tenures. Yillenage tenure, therefore, never existed here. Yillenage, as a common law status, was made of force here. Yillenage regardant was attached to the manor, and was not made of force here. Yillenage in gross belongs to the person of the master; and this is the condition of slavery here. What was the condition of the villein at common law ? Quioquicl acquiritur servo acquiritur domino. Co. Lit. 116, a. Ill, a. 119, a. ; Smith v. Stapleton, Plow. 435. “All acquisitions of property, real and personal, made by the villien, in whatever way .j.ooh-i arising, &c., belonged to his Lord ” Hargrave’s notes (116) to *Co. J Lit. Ill, a. This common law rule is of force in this State, as applicable to the condition of our slaves, and the Act o'f 1140 recognizes it by the exceptions which have been therein made to it. The case of Gregg v. Thompson, 2 Con. Rep. 331, is rather in opposition to this rule, but it excepts the very case before the Court: — “ That when it is said that whatever they acquire become their master’s, it is meant whatever they absolutely acquired by gratuity, &e., of others.” So that this case does not decide that a gratuity to the slave would not be the master’s; but only that as to contracts made with a slave, if the master approve, the benefit belongs to the slave.</p> <p>For the civil law doctrine, see Poth. Civ. Law 24 ; Taylor’s Elements of Civil Law, 429. In the case of Sally, 1 Bay, 260, C. J. Rutledge held, in exact conformity to the common law doctrine, that the acquisition of the villein aliened before seizure by the lord, was good.</p> <p>The slaves may take the gratuity under the will. Whether they can take more than a life estate, must depend on the will. If they take at all,-they take absolutely. The case of Brown v. Geiger does not apply ; the estate there was expressly limited for life. Bat when it is a general bequest, the estate is absolute. 2 Roper on Wills, 331.</p> <p>Is not the executor the haeres factus under the will, and authorized to do exactly what the testator himself could have done ? Unless there is something in the will to the contrary, the whole property is in the executor. In the Executors v. the Heir.s of Radeliffe, the testatrix merely made her will naming her executors without making any disposition of the property ; and it was held that he was a trustee for the next of kin : but in this ease the executor is directed to take and hold against the next of kin ; the implication cannot therefore arise. — See Wilson v. Wilson, 3 Bin, 562, opinion of Tates, J.</p> <p>in reply. This case is interesting, both as to the principles of law involved, and the general policy of the State. If the defendant succeed, the decision will endanger the safety of our domestic institutions.</p> <p>Where are we to find^the principle by which to decide this case ? It is said, in the common law. What common law ? Not that which was adopted in 1712. The doctrine of villenage was *then obsolete, r^qoo Yillenage never existed in Pennsylvania, 1 Dallas, 167, and never L in South Carolina ; and the exploded and obsolete doctrines of the common law in relation to it, have no application in the case. The civil law, as it has come down to us, is a Roman statute of Justinian. We cannot adopt it as our guide, nor be governed by it as authority. The slave, both of the common and civil law, was regarded as having a status in society, in relation to other persons than his master. Not so here.— Color here is prima facie evidence of slavery. Not so in England or Rome. In Rome and Greece the mechanic arts and trade were considered degrading, and committed exclusively to slaves. No such idea is entertained here. As, then, the condition of our slaves is different from that of the villeins of England and the slaves of Rome, and as our customs aud policy are widely at variance from theirs, neither the civil law of the one, nor the common law of the other, applies to the state of slavery here. We must look then to our own legislation, founded on our own peculiar policy, in order to fix the condition of our slaves.</p> <p>In 1683, 1690, and 1696, Acts were passed for the regulation of slavery. The Act of 1740 is a mere recognition of the status of the slave, before and at the time of its passage. Slaves were regarded as bona et catalla, before that time. And so, too, they are regarded by the civil law. By that Act they are declared goods and chattels, “to all intents, purposes and constructions whatsoever and this excludes the conclusion that in any point of view, (except where so regarded by statute,) they are to be considered as persons. The Acts of 1800 and 1820, show that slavery is regarded as a political subject, by imposing restraints on the master in regard to emancipation. The general rule for the guide of our Courts must be, what will best promote the views of the people as expressed in the legislative enactments in relation to this class of persons. The legislature has fixed the character of the slaves as lona et catalla in every point of view, except where it makes them persons — as in relation to crimes. But in all civil matters they are mere chattels, and the mere agents or instruments of their master. As then the slave has no civil rights, as he is a mere chattel, and as there is no statutory provision authorizing him to take, he is wholly incapable of taking a legacy under a will, either directly or indirectly. In Sally’s case, 1 Bay, 860, the deed *qqqi of emancipation from the master, prevented a recovery* — not that J the slave could acquire property. No one can take through a trustee, who cannot take directly. An alien can take, but cannot hold. In North Carolina this question has been adjudged., It was there held, that a slave cannot take by devise. — Cunningham’s heirs v. Cunningham’s executors, Cam. & Norwood’s Rep. 353 ; and in the same case, Taylor’s Rep. 209, that a devise for the maintenance of a female slave and the children is void. That the condition of slaves does not depend on the feudal or civil law. — See 5 Harris & John. Rep. 190. We must look to our peculiar policy as indicated in our own legislation, and in that we find, that to interfere with the slaves of another is prohibited. The effect of allowing the devise in this ease, would be to render the slaves discontented. It would go further. It would defeat the law against emancipation ; for they would become quasi free persons.</p> <p>As to the will. Will the Court permit the executor to sell the land for an illegal or immoral purpose ? As to the personal property, the title is in the executor — a principle originating in the Ecclesiastical law, which vested everything in the Church for the good of the deceased’s soul. In this State the executor is regarded a trustee for the next of kin, the devises failing or there being a residuum undevised. In this case, it was plainly intended that the executor should not take. Frederick Fable is not mentioned in the will,' and there can be no conclusion against him. It is the ordinary case of a defective devise: it falls into the. residuum and goes to the residuary legatee, or next of kin.</p>

<p>Barnwell — February, 1835.</p> <p>De Saussure, Chancellor. The bill is filed against the administrator, for an account and settlement of the estate of the intestate, Isaac Foreman. The single point made and argued in this case, is whether the purchase of a slave, named August, made by the defendant, Jacob Foreman, administrator of Isaac Foreman, at a sale of property of the estate of his intestate, authorized by the Ordinary at the instance of the administrator, shall be set aside at the'instance of the plaintiffs, who are entitled to a distributive share of the estate. It appears that the slave, August, was, at the time of the purchase by the defendant at Ms sale as administrator, a boy somewhere about twelve years of age, and capable of being a plough-boy. He has since grown up, and is a very valuable servant, and Ms hire for his annual services, put by the testimony at a high rate, is far indeed beyond the amount of the annual interest of the price, at which he was purchased by the defendant; *not less, indeed, , n9 than three or four times the amount of the interest. The defend- L ’ ant contends that the sale was authorized by the Ordinary, and therefore regular and good; that it was fairly conducted, and that he bid a fair price, viz.: $350, which was not only the just value, but a very high price; that he was at liberty to purchase at the sale, and that he is entitled to hold the said slave under his purchase, and to account accordingly for the price and interest thereon. It is admitted, on the part of the plaintiffs, that the sale was authorized by the Ordinary; but it is contended that the sale was unnecessary, and that the purchase of the slave, August, by the defendant, the administrator, Jacob Foreman, at his own sale, was void, and vested no property in the defendant, who is required to deliver up the slave, and to account for Ms hire. That the sale was authorized by the Ordinary, who has the power, is sufficient for this Court, unless fraud be shown in procuring the order. There is nothing in the evidence to lead the mind to the belief that the sale was unfairly conducted, or that any advantage was taken by the defendant to obtain the said slave, at a price below his full value; and I think that the weight of evidence establishes that the sum of $350, which was bid by the defendant, was not an unfair or short price for a boy of about twelve years of age. The question, then, is really reduced to the simple point, whether a purchase, made under -such circumstances, should be sustained by the Court, for the administrator who purchased; or set aside, at the instance of the plaintiffs, who are entitled to distributive shares of the estate. It is unnecessary to go into the history of the changes which the doctrine has undergone of the authority of executors and administrators, to sell the property of the estate in their hands, at their discretion, or to take it at their appraisement. These powers have been controlled and regulated by statutes founded on experience of the danger of trusting such powers in the hands of men, who might be tempted to abuse them for their own advantage, to the prejudice of persons who are generally widows or minors, and incapable of taking care of their interests., The authority to take the estate at an appraisement has been abolished, and the power to sell has been taken from executors and administrators, and transferred to the Ordinary; a confidential officer of the government, who may grant or refuse the authority to sell, according to his judgment of the propriety of the application of the executor or administrator. Notwithstanding* these wise provisions of 4 the statute, it was found that abuses existed; and that some executors and administrators and trustees, availed themselves of the advantages of their position of sellers, with the power to manage and control the sales, to become purchasers at their own sales, at a price below the real value of the property put up for sale. To check these abuses, the Courts have been obliged to interfere, and in many cases to set aside purchases thus made, in order to protect the interests of women and children. This has given rise to a good deal of controversy, as to what cases the Court would interfere in. It has been held that the only safe rule would be to deny altogether the right of executors, administrators and trustees, to become purchasers under any circumstances, and to declare them all void. This, however, has been considered too strong a course, and even injurious to the estates, as it might prevent these functionaries from interposing their bids to prevent low sales to other persons, and to diminish the circle • of competition. The decided cases fluctuated for some time. There was great uncertainty and division of opinion among the judges, as may be seen in the cases of Drayton v. Drayton, 1 Eq. Bep. 557, and M’Gtaive v. M’Gowen, 4 Eq. Bep. 486. Many other decisions followed, which were made to turn mainly on the ground of fairness in obtaining authority to sell, correctness in conducting- the sales, and fulness of prices bid by the executors and administrators. The abuses were so flagrant and frequent, that there was a strong disposition to declare such purchases void. But the opinion prevailed that they should be held to be only voidable; depending on the circumstances of fairness and propriety and price, in each particular case. This was a pretty good check, but not entirely effectual, because in many cases it was difficult to detect and bring to light the arts and contrivances by which sales were made and purchases at low prices or doubtful prices were obtained. The later decisions appear to me to have settled down on the proper ground. That purchases made by executors, administrators and trustees, at their own sales, were not absolutely void, but voidable — for impositions in obtaining orders for sales without necessity, by misrepresentation of the situation of the estate, or fraud and contrivance in conducting the sale, or management in obtaining the property at low and inadequate prices. And finally, one other protection was added, that the persons interested, who thought themselves aggrieved by the purchases by executors, &c., ^should be at liberty to avoid the sale by dissenting from the same, unless they have L done some positive act by which they have given up or abandoned their right.</p> <p>This renders the guard against abuses complete; for persons in fiduciary situations will not be apt to make purchases at low rates, or even moderate prices, when they know that, if ultimately the purchase turned out advantageously for them, they would assuredly be avoided ; but if disadvantageous^, they would remain bound. In the case of Edmonds and others v. Crenshaw & M’Morris, 1 M’C. Ch. Rep 252, 260, it was laid down broadly, that the executor’s purchase at his own sale was void, and the slave purchased was still the property of the estate. — See also 2 John. Ch. C. 252. In Wiggin’s case, 1 Hill’s Ch. Rep. 353-4, decided 1833, Chancellor Johnston stated the rule to be, “that according to the decided cases, a trustee to sell cannot purchase whether he is a party interested or not. If he sells, the sale will be set aside, or he will be held to the purchase as of course, at the option of the parties interested; and as the rule forbidding such purchases is one of policy to prevent fraud, when there is no possibility of proving it, the inquiry is never made whether the sale is or is not advantageous.” This was putting the decision on the broadest ground. Judge Harper, who delivered the unanimous opinion of the Court of Appeals, concurred fully with the Chancellor in his expressions. It is true, that in the Court of law the doctrine has not been carried so far, or has been somewhat modified ; yet substantially it has been supported by the decisions. In the case of Trimmier v. Trail, 2 Bail. Rep. 480, decided in 1831, the Court decided that an administrator, having an interest in the estate, may purchase to the extent of his interest; and a purchase, by an administrator not entitled to a share of the estate, is not necessarily void, but may be confirmed or set aside at the election of the parties interested in the estate. These doctrines apply to all persons acting in fiduciary stations, executors and administrators, as well as those more technically called trustees. In this case, therefore, although the purchase made by the administrator, who had no interest in the estate, does not appear to have been made fraudulently or at a low price, I feel bound to declare it null and void, because the plaintiffs entitled as distributees, have by their bill signified their option that the sale should be set aside.</p> <p>It is therefore ordered and decreed that the purchase be set aside and *avoided ; and that the defendant should deliver up the slave in r^4nF; question, named August, for distribution, and that in accounting L before the Commissioner, as he is hereby ordered to do, for the rest of the estate, he account for the hire and labor of the said slave.</p>

Heard before Chancellor De Saussure, at Walterboróugh, January, 1835. The plaintiffs filed their bill against the defendants, claiming certain negroes under a deed wherein defendants are appointed trustees, executed by Baltus Inabnit, deceased ; in which, as they allege, he conveys the negroes in question, to his son Christian, with limitations over in favor of the plaintiffs, in the event of his death without issue.

Heard before Chancellor Harper, at Coosawhatchie, February, 1836. It was referred to the Commissioner to inquire and report who are the next of kin of the intestate, Thomas H. Barksdale. Held: that the half blood are included, and they are put on the same footing with the whole blood, in the granting of administration and the distribution of estates.

<p>Heard before Chancellor Johnston, Lancaster, July, 1835.</p> <p>In 1826, the plaintiff, and the defendant King, contracted with Nathan and Abel Funderburk, to purchase of them a tract of land, containing two hundred and ninety-six acres, for six hundred dollars. With the consent of the plaintiff, they executed a conveyance to King alone, who gave them his note for the money, with the plaintiff as security, but the conveyance has never been recorded. It was, however, at the time expressly agreed between plaintiff and King, that plaintiff was to have one half the land, and he (King) should convey the same to plaintiff, when he paid him his portion of the price; but this agreement1 was merely verbal, and was never reduced to writing. Immediately after the purchase, both King and *the plaintiff settled on the land, and went p* on with building and improving; and not long after procured a L surveyor to run a dividing line between them; and from that time to the present, they have both lived on, improved and cultivated their respective portions as designated by this line. In 1830, or thereabouts, the plaintiff, having previously made other payments, paid the balance in full to King, his proportion of the price of the land, but never obtained a conveyance from him. Previous to this time, King had become much involved in debt, and judgments were obtained against him for a considerable amount, at the instance of sundry persons, and entered up at different times from 1828 to 1830, some of them for debts contracted before, and some of them after plaintiff had paid King his portion of the purchase-money, and amongst others, one at the suit of the Funderburks, against both himself and the plaintiff, for $52, being a balance due of their notes given as the price of the land. The entire tract of land, including that in the possession of plaintiff as well as King, in October, 1830, was however levied on and sold, in February, 1831, as the property of King, under an execution at the suit of one H. Hoey. At this sale the defendants, Andrew M’llwain and Nancy M’Cardell, were the purchasers. M’llwain, who was the active agent in the purchase, had explicit notice of the possession and nature and extent of the plaintiff’s claim at the time he purchased. Defendants, M’llwain and M’Cardell, have commenced an action at law against the plaintiff, to try the title and recover possession of the land ; and the object of this bill is to set aside the sale to them, and to restrain their proceedings in the action at law.</p> <p>The Chancellor. In the view which I take of this case, it is unnecessary to examine most of the questions made. Whether M’llwain and Mrs. M’Cardell had or had not notice of the transactions between King and Massey, before they purchased from the sheriff, is immaterial, so long as they can stand in the shoes of the creditors'of King, to whom, with the exception of the Funderburks, it is not pretended notice was extended by the arrangement of King and Massey themselves. The title was taken to King, which procured him credit on the faith of the land. Massey cannot therefore complain that King’s creditors should satisfy themselves out of property of which he consented that King should become the ostensible owner; and if the creditors had the *sale of the >-*¿90 land in their power, a sale by them to a person infected with L notice, was as good as if made to one who had no notice at all. To say otherwise, would put it in the power of one, first, to obtain credit, and then, by giving general notice, to defeat that creditor of his remedy, by cutting off all purchasers under the creditors’ execution. The well-known principle, that one infected with notice may safely purchase from and protect himself under another destitute of notice, is of easy application to this case. This is sufficient to decide the case, as between the plaintiff and the defendants, M’llwain and M’Cardell. As to King, the plaintiff is entitled to a decree against him for reimbursement;. although at present his insolvency may seem to render that nugatory.</p> <p>It is decreed that the bill against the defendants, M’llwain and Mc-Cardell, be dismissed ; and that, as between the plaintiff and the defendant, King, an account be taken to indemnify the plaintiff for such payments as the plaintiff has made said King, on the score of the land mentioned in the pleadings — the plaintiff to be liable to M’llwain and Mc-Cardell for their costs, and King to be liable over to the plaintiff for theirs, and all other costs of the case.</p> <p>The plaintiff appealed, and now moved to reverse the Chancellor’s decree, on the ground that the case made entitled him to relief.</p> <p>contended that it was an established principle of equity, that one purchasing a trust estate, or an estate subject to equitable rights, with notice, took subject to all the liabilities of the vendor. That it was not denied that as between the plaintiff and King, the performance of the parol contract for the land, by the payment of the purchase-money, and taking possession and making improvements, made such a case as entitled the plaintiff to a specific performance. The proof was clear that M’llwain, the agent in the purchase, had explicit notice of the plaintiff’s equity at the time he made the purchase, and even before. And if it be insisted that he is invested with the rights of the creditors’ executions, it is contended that they too had legal notice. The possession of the plaintiff from 1826, his improvements and general acts of ownership, the creditors living in the neighborhood, constituted such evidence of title in him as should have put the creditors on the inquiry ; and amounted to notice of his claim. Besides, these debts *1911 were n°f contraete(l on the faith *of this land. King had no ae4 -* tual possession; he had the deed, it is true, but it was npt recorded; and if creditors came.to a knowledge of the purchase, they would at the same time know the manner of the purchase, and the plaintiff’s claim. The defendants cannot be protected under Funderburk’s execution, for this creditor was privy to the agreement between King and the plaintiff, and knew of its performance. At the time the agreement was performed, there were no liens on the land, and King had the right to convey. The plaintiff’s equity is therefore paramount to that of creditors. Cited Daniels v. Davidson, 16 Yes. 250; 1 John. Oh. Hep. 267; 2 Fonb. 151; 5 John. Ch. 29.</p> <p>argued that the defendants, M’llwain and M’Cardell, as purchasers for a valuable consideration, were entitled to the protection of the Court. They had not only the rights of purchasers, but were invested with all the rights of the execution creditors, among whom Funderburk had his execution for the balance due on the original purchase.</p> <p>By the Court. — Was Funderburk’s execution levied ?</p> <p>It was not — but the balance due on it was paid from the sales. The debts were contracted subsequent to the purchase of the land, and on the faith of it. The equity of the creditors is at least equal to that of the plaintiff; and where equities are equal, the law must prevail.</p> <p>As to notice — He insisted that notice to the purchasers was not sufficient : there must be notice to the creditors, whose rights they are clothed with; and there was no proof of notice to them. Possession is only evidence of title to personal property, not to real. A purchaser with notice of an equity, may protect himself by want of notice to the person from whom he purchased. And here, these defendants will be protected by want of notice to the creditors. Cited Amb.' 164 ; 1 John. Oh. Rep, 214; Ca. Temp. Talb. 181; Brandlyn v. Ord, 1 Atk. 511; Sweet v. Southcote, 2 Bro. Ch. 66 ; Bumpus v. Plainer, 1 John. Ch. 219.</p>

• This case has already been before tbe Court of Appeals, and a decree made, allowing the defendant dower, and directing her to account for the rents and profits of the land of which she had been in possession since her husband’s death.

This cause was heard before Chancellor Johnston, at Marion, Feb. 5, 1835. Chancellor Joiinston. This case was taken up yesterday, for the purpose of examining' two questions. 1. Whether the plaintiffs take any, and if so, what interest, under the residuary clause of the will of Wm. Johnson, sen. 2. Whether, if they take under that clause, they have a right to avoid the purchases made by Francis Johnson, the executor, at his own sale, as set forth in his answer.

<p>Heard by Chancellor Johnston, at Camden, February, 1835.</p> <p>The bill was filed 1th July, 1834, and states the following circumstances :—</p> <p>On the 30th April, 1833, Ralph Johnson executed an assignment of his whole real and personal estate, particularly two town lots in Camden, eight slaves, household and kitchen furniture, working tools, debts, &e., to James K. Douglas, Benjamin Bineham, John J. Blair, and James S. Stewart, in trust, to sell the same on the best terms they could obtain, either at public or private sale, and on such credit as they may deem proper, and to collect in the debts due to him, and to pay therefrom—</p> <p>1. All existing judgments against him.</p> <p>2. To pay all the costs and charges of executing the assignment. *444.1 * “ SlmU- pay out of the remainder of said moneys in rateable -* £fnd equal proportions, to all such creditors of the said Ralph Johnson, upon bonds, notes, obligations and accounts, as shall render in the same to the said assignees, and establish their demands, within six months from the dale of these presents; and who shall at the time of establishing said demands, signify and accept in writing, that the dividend so to be received, shall be a free discharge of their said claim against the said Ralph Johnson; and upon the ultimate payment of said dividend, shall grant such full and final release: hereby debarring and excluding all and every creditor of the said Ralph Johnson, from any advantage or benefit whatever, under any provision of this assignment, who shall neglect or refuse to render in and establish his, her, or their demand, and signify and assent in the manner prescribed aforesaid, to accept of their dividend as a full and final discharge of their claim against the said Ralph Johnson.” The assignees accepted the trust, and undertook the execution of it on the 3d May, 1833.</p> <p>Soon after the execution of the deed, the sheriff of Kershaw levied ou the house and town lots, and seven of the slaves, and sold them to satisfy executions in his office against Ralph Johnson, older than the deed oí assignment; and paid them in full from the sales thereof. In the year 1833, the assignees sold the remainder of the property under the deed, which produced a large sum of money, how much plaintiff does not know; and now hoW the same ready to pay over to the creditors of Johnson, who have accepted the terms of the assignment.</p> <p>On the 4th April, 1834, plaintiff obtained and entered up a judgment against Ralph Johnson, in Kershaw district, for $2172 99, with interest on $1784 30, from 31st March, 1834, with $17 costs of suit, on notes of hand which arose, and are dated previous to the date of the deed. Plaintiff refused to accept under the deed, and issued his fi. fa. to the sheriff, which is still unsatisfied, and was returned nulla bona.</p> <p>On the 4th April, 1834, Aaron Burr, administrator of D. Dutton, recovered and entered up a judgment against Johnson, for the sum of $102 and interest, together with $15 96 costs of suit, and issued his fi. fa. thereon, which is still unsatisfied.</p> <p>On the 2d November, 1833, G. H. Dunlap & Co. recovered and entered up a judgment against Johnson, for $57 94, interest and ■j-jjki *eosts of suit, and issued execution thereon, which is still un*U51 satisfied.</p> <p>Plaintiff alleges that the deed is void in law, because Johnson conveyed his whole real and personal estate in trust, to pay only such creditors as shall accept a dividend of their claims, and thereupon grant a full discharge of their whole demand; thereby delaying and hindering creditors from recovering their full claims ; w'hich plaintiff submits is such a fraud upon creditors, as avoids the deed wholly: that if this be true, the moneys in the hands of the assignees is liable to be paid over to these executions. Plaintiff has applied to the assignees to pay his execution, but they refuse to do so; plaintiff therefore prays that the assignees may be ordered to pay over to this execution, and the two other executions, the funds in their hands, according their priority.</p> <p>The joint answer of J. K. Douglas, B. Bineham and J. S. Stewart, admit the facts set forth in the bill, refer to the answer of Blair for their doings in the assignment, and insist that the assignment of Johnson is not “ calculated” to hinder, delay or defraud creditors, and is valid in law and equity; and pray to be hence dismissed with their costs.</p> <p>The answer of John J. Blair alleges, that the assignees acted in strict pursuance of the Act of Assembly of 1828, on the subject of assignments; and by their order the property was sold — and therefrom he has in hand twelve hundred dollars, eighty-eight cents, to be paid on the debts due by Johnson. That claims against Ralph Johnson have been presented to the assignees by the creditors, amounting to $1243 63 without interest, who have accepted the terms of the deed. He insists that the assignment is valid in law and equity, and prays to be dismissed with his costs.</p> <p>The answer of Ralph Johnson admits the facts set forth in the bill, and says the deed was not intended to hinder, delay or defraud his creditors, but contained a bona fide surrender of his whole property, and his object was to put his creditors on an equal footing, which he insists he had a right to do in law, &c.</p> <p>The case, after the reading of the bill and answers, was argued February 23d and 24th, 1835, by Wethers and John M De Saussure for the plaintiff, and by M Willie for the defendants. It was admitted that all the plaintiff’s demands on which he recovered judgment were due before the assignment, and that Burr and :|:the others stated in the r*44§ bill, were also subsisting creditors. The following decree was L afterwards delivered:—</p>

<p>After the assent of the executor the title vests in the legatee, and the property is not liable in his hands to executions subsequently obtained against the executor, (a)</p> <p>A decree against executors of an executor, is prima facie evidence against the legatee of the first testator on a bill to charge the legacy.(b)</p> <p>The statute of limitations will not run so as to protect a legatee against his liability for testator’s debts, until after the remedy has been exhausted against the executor. — No cause of action accrued against him until then. [*461]</p> <p>A creditor of the testator has the unquestionable right to pursue a legacy in the . hands of a legatee, after assets in executor’s hands have in any way been exhausted. It might be different if he had stood by and saw the executor dissipating the assets without making any effort to save himself. [*462]</p> <p>Lands devised under a general residuary clause liable for debts before a specific legacy. [*462]</p> <p>Plaintiff decreed to accbunt for hire of negroes while in his possession. [*465]</p> <p>The liability of a legatee for testator’s debts extends only to the legacy in specie, he is not liable for hire. [*466]</p> <p>If a creditor is guilty of neglect in prosecuting his demand against the executor, the legatee will be protected by the statute of limitations. Ob. Dec. [*467]</p>

Hnion, Special Term, September, 1835. O’Neall, J., (sitting as Chancellor.) The plaintiffs are creditors of the late Hiram Coleman, of whom the defendant is the administrator. In 1828, three years after the death of his intestate, the defendant exhibited to the plaintiffs a statement of the Ordinary, by which it appears that after paying preferred debts, the defendant had in his hands only $1895 04 of available assets, for the payment of their debts.

Fairfield, July, 1835. The following is the brief of the appellant’s counsel:— The bill in this case was filed by the plaintiff, as a judgment creditor of Reuben Pickett, Robert L. Knox and Susannah Pickett, against the defendants, on the 1st of February, 1832. — 1.

Before Chancellor De Saussure, at Darlington, February, 1836. Andrew Hunter had, by his first marriage, five sons, John, James, Andrew, Dorrell and Isaac ; and after the death of his wife, he had four illegitimate children by Mary Andrews — that is to say, Laney Andrews, Solon Andrews, Satyra Andrews, and Cambyses Andrews.

<p>George Massey died intestate, and the plaintiff, Joseph Massey, administered on his estate. The intestate, George Massey, left a widow and seven children. By his first wife he left the following children: Joseph D. Massey, Charlotte Massey, (now Mrs. Cook,) Henry G. Massey and Benjamin Massey; and by his last wife, the following : John B. Massey, (and William Massey is now his guardian,) Harriet C. Massey, (now Mrs. Gilmore, and Benjamin S. Massey was her guardian,) and Mary C. Massey, (now Mrs. Haigood, Benjamin Massey was her guardian.) In 1819, about a year after George Massey’s death, his son Benjamin died unmarried and intestate. Joseph Massey, the plaintiff, having sold the property of his intestate and collected the debts, and having also made regular annual returns of his accounts, in 1827 procured an order from the Ordinary, for partition of the estate amongst the distributees ; and by the instructions of the Ordinary, and contrary to his own impressions, after paying the widow the one-third of the estate, he paid over the remainder, including the share of the deceased child, Benjamin, to the six surviving children, in equal shares.</p> <p>*4931 *^n *832, Joseph D. Massey, a brother of the whole blood to J the deceased, Benjamin, administered on his estate, cited the plaintiff before the Ordinary, and obtained a decree against him for $1316 03, the share of Benjamin, being the one-seventh of two-thirds of his father’s estate; one-half of which the plaintiff had properly paid to the brothers and sister of the whole blood, and the other half improperly to the brothers and sisters of the half blood. Joseph D. Massey, as the administrator of Benjamin, brought his action at law against the plaintiff on the administration bond, and obtained judgment, predicated on the said decree, for the full amount thereof.</p> <p>The bill was filed in June, 1833, to enjoin the judgment at law, to obtain credit thereon for the amounts already paid by the plaintiff to the brothers and sister of the'whole blood of the said Benjamin, and which they were legally entitled to ; and to require the brothers and sisters of the half blood, and their respective guardians, to refund the sums paid them on the mistaken distribution of the estate of Benjamin.</p> <p>James H. Gilmore and wife pleaded the statute of limitations. The payment was made by the plaintiff to B. S. Massey, Mrs. Gilmore’s guardian, in 1827; and in 1831 he paid over the funds and settled in full for his guardianship, without having notice of the plaintiff’s claim. The guardian pleaded this in discharge of his liability.</p> <p>The cause came to a hearing before Chancellor De Saussure, at York, June, 1834.</p> <p>His Honor overruled the plea of the statute of limitations, and ordered, “ That it be referred to the Commissioner to examine and report what proportion was overpaid to each of the younger children, (those of the half blood,) and how much was underpaid to the elder children, (those of the whole blood,) of the estate of Benjamin Massey. It is further ordered, that the injunction previously granted by the Commissioner, be continued till the coming in of theyeport and the decision thereon.”</p> <p>In pursuance of this decree, the Commissioner held a reference and stated the accounts.</p> <p>On the reference, the plaintiff’s annual returns were in evidence, in which he made regular returns of the interest made and received by him. In his report, the Commissioner charged the plaintiff with interest on the annual balances, including interest on the interest returned The r^.. „ , principal sale bill fell due on the 28th January, 1818; the Com- L' missioner adhering to the rule that moneys received should not bear interest against the administrator in the current year, charged no interest on it until the first of January succeeding.</p> <p>The cause came on again before Chancellor Johnston, in June, 1835, on the report, and exceptions by both parties.</p> <p>Of the several exceptions, it is only necessary to notice the following :—</p> <p>By the plaintiff.</p> <p>1. That the plaintiff, having in his returns returned and accounted for the whole of the interest made and received by him, and no attempts having been made to falsify them, and no negligence imputed, he should not be charged with interest beyond that returned.</p> <p>2. That the report charges the plaintiff with interest on the interest returned, although the defendants admit, that according to their mode of charging, they are not entitled to the interest itself thus returned; and consequently cannot be allowed interest thereon.</p> <p>4. That the plaintiff should not be charged with interest on the annual balances, as he had charged himself with all the interest he made and received.</p> <p>7. That commissions are not allowed to plaintiff in the report, at two and a-half per cent, on the interest made, in addition to ten per cent, for making interest.</p> <p>By the defendants.</p> <p>2. That the Commissioner, in his report, did not charge the plaintiff with interest on $9133, (the sale bill,) from 28th January, 1819, because, in making up the accounts previously, he had commenced the annual charges on the first of January.</p> <p>So much only of the decree as relates to these exceptions is presented.</p> <p>Johnston, Chancellor. This case comes up on a report of the Commissioner, and exceptions thereto.</p> <p>The first exception of the plaintiff is, I think, founded in misconception. The interest referred to in the plaintiff’s returns, is extra interest made by renewing notes. But charging himself with this, does not exempt him from ordinary interest. The exception is overruled.</p> <p>*4.061 ^aTe *n va™ endeavored to find out the practical application J of the plaintiff’s second exception: as I cannot, I must overrule it.</p> <p>The plaintiff’s fourth exception is overruled for the reasons stated in relation to the first.</p> <p>The plaintiff’s seventh exception insists that he is entitled to two and a-half per cent, in addition to ten per cent, allowed administrators for interest. Taveau v. Ball, 1 M’Cord, Ch. Rep. 462, seems to support this construction of the act. But it appears to me to be so plain an invasion of the act, that I will give the Supreme Court another opportunity to consider the question. By the act it is provided, (a) not that an executor shall receive ten per cent, for letting out to interest and receiving in again, nor ten per cent, for interest he shall make for the estate; but that he shall receive two and a-half for letting out, and two and a-half for taking in, until the commission reach ten per cent, on the interest made, which is expressly declared to be the maximum. In all cases of short loans, ten per cent, on the interest made will fall short of five per cent, for letting out and taking in the capital; and therefore, as the limit is ten per cent on the interest, the operation of the act is, in all such cases, the same as if ten per cent, had been expressly given on the interest, instead of allowing commissions to that limit on the capital. The case would be very different, however, on a loan for twenty years secured by bond ; then, only five per cent, on the capital would be the commissions— falling far short of ten per cent, on the interest. The exception to the report on this point, is overruled.</p> <p>The defendants’ second exception is overruled. Harper v. Ardis, 2 Hill, 560, is against it, and governs me, although I dissent from it.</p> <p>The plaintiff appealed from the decision of Chancellor Johnston, in overruling the exceptions on his part.</p> <p>The defendants, Gillmore and wife, appealed from the decree of Chancellor De Saussnre, overruling their plea of the statute of limitations ;* and all the defendants appealed from the decree of Chancellor Johnson, overruling their second exception. And the defendant, B. S. Massey, the guardian of Mrs. Gilmore, appealed and now moved that the bill as to him be dismissed, on the ground'that his plea was sustained. [*496</p>

Heard at Coosawhatchie, February Term, 1836, before Chancellor Harper, who delivered the following decree :— On the 2d of August, 1816, administration was granted to the defendant, James T. Buckner,… Held: that though a trustee for all creditors, it was not his duty to go in search of creditors, and that they could take notice of no creditors, but those who had presented their demands duly verified by affidavit.

Heard at Coosawhatchie, January Term, 1835, before Chancellor De Saussure, who delivered the following decree :— The bill states, that previous to the marriage of James Slowman with Sarah Oswald, a deed of settlement was executed, by which a certain claim, which she had as one of the legatees of George Stevens, was conveyed to plaintiff, as trustee, for certain uses therein set forth.

Heard at Beaufort, February Term, 1836, before Chancellor Harper, who delivered the following decree:— The only object of the bill which it is necessary to consider, is to obtain partition of a tract of land of which Joseph John Jenkins, *de- rj.,,. ceased, is admitted to have been seized at the time of his death. *- The bill also claimed a number of slaves, and this seemed the more material part of it.

<p>A remainder-man may sustain a bill in equity against the tenant for life for the specific delivery of slaves. [*516]</p> <p>On a question as -to identity of slaves, it is admissible to prove that the slaves in question were called certain names and said by other negroes to belong to a certain gang [517]</p> <p>The teuant for life of slaves as a trustee for the remainder-man is bound to account, and the burthen of proof to show the increase or diminution is thrown on him; and in default of accounting, he shall be charged with the value of such number as the original stock may reasonably be supposed to have increased; subject, however, to evidence of peculiar circumstances, accident or mortality. [*520]</p> <p>A specific bequest of property strictly consumable in the use, such as corn, wine, &c., gives the absolute property, but of a flock or herd which is capable of increase, the tenant for life taking the increase is bound to keep up the number of the original stock. [*521]</p> <p>The estate of tenant for life having been divided before administration, reference ordered to ascertain if sufficient property came into the hands of her son, so as to make his estate chargeable for the stock, &e. [*521]</p> <p>Limitations of trusts of personalty are the creatures of equity, and it is by regarding the tenant for life as a trustee for the remainder-man, that equity takes jurisdiction to compel the execution of the trust to the remainder-man. And not only the personal representative of the tenant for life, but every volunteer and purchaser with notice, are bound by the trflst. [*523]</p> <p>According to the general rule laid down in Sarter vs. Gordon, that a bill will lie for specific delivery of slaves, the remainder-man may sustain a bill against the representatives of a tenant for life, or volunteers under her, to compel delivery of slaves bequeathed to him. [*523]</p> <p>Where one states that his slaves have come into possession of another who refuses to deliver them, he states a sufficient ground for equity jurisdiction. [*524]</p> <p>But if it should appear that he contracted for slaves generally, with no view to their qualities, or to any individuals, but as mere merchandize, the remedy is at law. [*525]</p> <p>When an issue will be ordered. [*525]</p> <p>The interest to disqualify a witness must be present and certain, and not uncertain and contingent : And, therefore, where a tenant for life of slaves loaned them to her son, and on her death her estate, excluding these slaves, was divided between her son and daughter, on a bill by the remainder-men against the administrators of the son, for specific delivery of the slaves, the husband of the daughter is a competent witness for the plaintiffs, to prove the identity of the slaves; although if the plaintiffs should fail to identify the slaves, and the defendants to prove that the stock had perished, the estate of the tenant for life might be made liable for the value, and the witness required to contribute. [*525]</p> <p>On the qustion as to the identity of slaves, where the original stock are all dead, hearsay coming from negroes, that those claimed are descendants, is admissible. [*527]</p> <p>The general rule is, that if a trustee wrongfully refuses to deliver on demand, he is liable if the property afterwards perishes: and therefore, defendant, claiming as a volunteer under-tenant for life, was held liable to remainder-men for slaves, who died since the filing of the bill to compel delivery. [*528]</p>

<p>The Commissioner is only entitled to commissions allowed by the fee bill for investing and loaning out money under the order of Court. [*628]</p>

<p>Where a female infant before marriage entered into a settlement by which she conveyed her real estate to the uses of the marriage and the issue thereof, and died during infancy, leaving a son who lived eleven years after attaining full age, without calling the settlement in question, and died leaving issue; on a bill by the creditors of the son to charge the real estate derived from the mother with the payment of his debts, on the ground, that the settlement was void, being made by the mother while an infant: — held, that at most the settlement could only be regarded as voidable, and no election having been made to avoid it, the creditors had no right to interfere, and the bill was dismissed. [*537]</p> <p>The question whether a female infant is hound by marriage articles, by which her own real estate is settled to the use of the marriage discussed, and the English cases considered. [*538]</p> <p>In England while it has been held that an infant wife who had accepted a jointure was barred of dower under the stat. Hen. 8, it seems to he settled she is not bound by a settlement before marriage disposing of her own real estate. [*538] Regarding the point settled in England, it becomes a question, how far we are bound by it, considering the difference in our circumstances, habits and institutions. [*539]</p> <p>What contracts of an infant are void, or voidable only. [*540]</p> <p>Whatever may be the rule as to executory contracts, it is clear that the executed contract of an infant is voidable only, and only the infant or his legal representatives can avoid it. [*541]</p>

<p>Heard before Chancellor Johnson, Charleston, May Term, 1836.</p> <p>The material facts of this case are as follows :—</p> <p>John Atchison and his wife, being each seized in fee, in equal undivided shares of the livery stable and lots in Church and Chalmers streets, Charleston ; Atchison, in May, 1830, leased the whole of the premises to Edward Francis, for five years, at two thousand dollars a year.</p> <p>In April, 1833, Atchison died intestate, leaving his wife and three infant children by a former marriage. James Lindsay administered on his estate. Atchison’s widow married Geo. W. Brown.</p> <p>The lease to Francis expired in May, 1835 ; and Francis paid the rent clue, to the administrator of Atchison, his lessor; no rent being ever *5431 demanded of him (Francis) by the widow or her second *hus- -* band ; nor did either of them ever enter, or interfere with the lease, after the death of Atchison; unless that be inferred from their giving Atchison’s administrator a general power of attorney to receive moneys due them.</p> <p>Brown and wife having filed their bill against the administrator and children of Atchison, for a settlement of his estate, it was referred to the Commissioner to take the accounts, and ascertain the net distributive shares of the widow and children, in the estate.</p> <p>The Commissioner reported, that Mrs. Brown was entitled to two-thirds of the rent which accrued after Atchison’s death — to wit, to half of. the whole rent on account of her ownership of one moiety of the premises, and third of the other half, as widow and distributee of Atchison. To this report the children of Atchison excepted:—</p> <p>“1. Because John Atchison, the husband of Mrs. Sarah Atchison, (now Mrs. Brown,) was authorized, by law, to lease his own moiety and also his wife’s moiety of the premises, to Edward Francis; and that the entire accruing rent, for the whole terra, was distributable as assets of his estate.</p> <p>“ 2. Because the lease to Francis was the property of John Atchison’s estate, which might perhaps have been defeated by entry by his widow, on his death ; but that the right of Mrs. Atchison, was no more than a right of entry, and not a right to the rent reserved by the lease. And the wife not having entered, or done any act to defeat the lease, she made her election to take one-third of the rent under it, as a distributee of her husband’s estate.”</p> <p>Johnson, Chancellor. The question is, whether Mrs Brown is entitled to a moiety of the rents accruing after the death of the intestate, or whether they are assets in the hands of his administrator.</p> <p>There is no question that the wife’s inheritance in land abides in her, notwithstanding her coverture, and survives to her on the death of the husband. The husband may, however, during his life, use, alien or charge the lands of the wife; but, on his death, these and all other incumbrances, fall off and drop with his estate and interest therein. (Bac. Ab. title Leases and Terms for years, C. 1.)</p> <p>It seems, however, that it has been a controverted question, whether a lease, made by the husband, of the wife’s lands, for a longer *term than his own life, the wife surviving, became absolutely void on L his death, or was only voidable at the election of the wife.</p> <p>Bacon, in the chapter before referred to, lays it down, that it is good for the whole term, unless the wife, by some act after the husband’s death, shows her dissent thereto ; for if she accepts rent, which became due after his death, the lease is thereby rendered absolute and unavoidable. The reason given is, that by reason of the marriage, the wife loses altogether the power of contracting or disposing of her own possessions; and, having subjected herself to the will and power of tjie husband, the power of contracting about, and disposing of, her possession, devolves upon him; because no one else has the right, or power, to meddle therewith; and without such power, they would be obliged to keep them in their own hands and occupation, — which might, finally, prejudice both. The abuse of this power, is guarded against, by permitting the wife, after his death, to affirm or disaffirm, his lease, as she may find most subservient to her own interests.</p> <p>'So, in Cruise’s Digest, vol. 4, p. 64, it is said that such leases by the husband are not void, but voidable, at the election of the wife. And Chancellor Kent, (2 Kent’s Com. 112,) on the authority of Mr. Preston, (Essay on Abs. of Titles, vol. 1, p. 334, 435-6,) remarks, that from the authorities, when closely examined, it seems, that, according to the common law, the husband has the power of transferring the whole estate of the wife; and the estate will be in the alienee of the husband, subject to the entry of the wife, or her heirs, after the death of the husband, which entry is necessary to revest the estate. But Sergeant Williams, in a note to Waller v. Hill, (2 Saund. 180, note 81,) whilst he questions whether, as a general rule, this doctrine is tenable, takes a distinction which is very plausible, if not entirely sound, and is certainly more consonant to the analogies of the law, and has, by that means, attempted to reconcile the cases. Estates for life being freehold estates, could only commence in livery of seisin, and can only be avoided by entry. But not so in leases for term of years, where livery of seisin was unnecessary. And, therefore, he concludes that leases for life are only voidable, and leases for term of years absolutely void.</p> <p>I concur, therefore, in the view taken by the Commissioner; and it is ordered and decreed that his report be confirmed, and made the judgment of the Court.</p> <p>Roper, in his treatise on property arising from the relation of husband and wife, (vol. 1, page 93,) seems to take for granted, that notwithstanding some cases to the contrary, a lease by the husband alone, of the lands of the wife, for a term of years, is absolutely void as to the wife surviving. *54.51 *But this question is wholly irrelevant to the matter now in issue. J The argument of the defendants is, that the lease was voidable only; and that the wife could avoid it only by entry, or, according to the laws of this State, by suit at law against the lessee. Conceding this to be correct, it does not follow that she is not entitled to the rents. All the authorities agree that where the lease is voidable only, any act of the wife, confirmatory of the lease, such as bringing an action of waste, or receiving the rents, after the death of the husband, is evidence of the election of the wife to confirm the lease. It follows, therefore, that she may receive the rents. A contrary rule would directly infringe the fundamental principle, that a husband cannot alien the inheritance of the wife, to her prejudice and against her consent, so as to bind her after his death. If his representative, and not the wife, is entitled to the mesne profits, until she sue, (no other entry is known here,) she would be deprived of the rents, ad interim.</p> <p>The infant children of Atchison appealed from this decision, on the grounds stated in their exceptions taken to the Commissioner’s report.</p>

<p>Heard before Chancellor Harper, Charleston, January Term, 1856.</p> <p>The decree of the Chancellor states the question made in this case as follows:</p> <p>“ The plaintiff’s bill is to obtain satisfaction of a decree for the payment of $1,488 13, and interest, formerly obtained in this Court, by his intestate, the said George Chur, against the defendant, Robert Giles, assignee of Thomas W. Giles. There is no question of the fact of such decree having been obtained, or that it remains unsatisfied. But the defendant, by his answer, states many circumstances to show that the original demand on which the decree was obtained, was unjust and fraudulent. These were *evidently the same matters which were urged in defence in the former canse, and cannot be taken into consider- L ation now.</p> <p>“ Among the rest, however, it is Stated that the decree itself was obtained by fraud, by the said George Chur’s inducing the said Thomas W. Giles, who was sworn as a witness in the cause, to swear untruly in support of his demand; and that for this purpose he used various artifices, and promised to share with him the amount to be recovered. There is no question, but that if a decree be obtained by fraud, it may be set aside on an original bill for that purpose. The only question is, whether the ' defendant can avail himself of this by his answer, so as to resist the performance of the decree. I am of opinion that he cannot.”</p> <p>The Court accordingly refused to hear the defendant on that point, and ruled that the plaintiff was entitled to a decree. And the defendant appeals on the following ground:</p> <p>That the Court ought not to give relief, by giving active efficacy to a decree, which the defendant alleges was obtained by fraud, until it has heard the evidence ; and if the evidence supports the defence, the Court should refuse to revive the decree on the ground that the Court will not lend its aid to make a fraud successful.</p>

Heard before Chancellor De Saussure, Charleston, January Term, 1831, who pronounced the following decree : William Stanyarne, the testator, died on the 5th May, 1183, leaving alive his wife Anna, and the following children -his son Charles, and his daughters Elizabeth, Mary, Frances, and Anna. The widow of the testator died in 1183 or 1184. The son Charles also died soon after, under age and without issue ; then the daughter Frances died unmarried.

Heard before Chancellor De Satjssure, Charleston, January Term, 1836, who delivered the following decree :— The bill was filed by Wm. Seabrook, and others, joint owners of the steamboat or steamer “William Seabrook,” to have an account from M’Kenzie, also a joint owner of two shares in said steamer, who acted as the agent of the company at Augusta, and was indebted to the concern for a balance alleged to be due by him to them.

<p>Heard at Charleston, May Term, 1835 — before Chancellor De Saus-STJRE, who delivered the following decree :—</p> <p>The bill is filed in this case by the bank creditors of Mr. Charles T. Brown, to set aside certain deeds and conveyances stated in the bill as void against creditors, being post nuptial settlements made or obtained by a husband who was indebted at the time ; and also, not duly recorded.</p> <p>The first deed which I shall notice, is among the last in date, but most easily disposed of — that of the 10th November, 1829, by which Charles Brown, conveyed to J. A. Keith and P. T. Keith, a plantation at Goose Creek, and forty-one negroes, in consideration of natural love and affection. The deed was recorded on Yth December, 1829, in the office of the Secretary of State, on 15th December, 1829, in Charleston, office of mesne conveyance; and on 21st December, 1829, at Georgetown. There were debts subsisting against Mr. Charles T. Brown, at that time. The deed *was purely voluntary, and this part of the case was properly r^ccq abandoned by the counsel, and the property must be subjected to L the claims of the creditors.</p> <p>The next is the deed of the 1st of June, 1824, by which Mr. Benjamin Elliott, the Commissioner in Equity, conveyed a house and lot in Charleston, at the corner of George and Anson streets, in consideration of $11,-000, to S. N. Stevens, in trust, for Mrs. S. A. Brown, during her life to her sole and separate use, remainder to her children by C. T. Brown, and their heirs. This deed was recorded in the office of mesne conveyance, on the 16th of July, 1824. If this be a valid deed, it will protect the property in question, from the claims of plaintiffs. That depends upon whether it is to be considered a marriage settlement. For if it is, it cannot be sustained, for it was not recorded according to the statutes requiring and regulating the record of marriage settlements. The deed was not made by the husband. The property never was vested in him. It was bought and paid for by the money of Mrs. Brown in the hands of the administrator of the estate, who gave it according to his testimony, expressly to pay for the house and lot, and to take the conveyance to a trustee for the wife and children. The administrator was not bound to pay the money to the husband without a settlement, and if, instead of requiring a settlement, he laid the money out in land for the lady and her children, it would have been good and not subject to the claims of the husband, or his creditors. This was done by the Coui’t in Price and White, Carolina Law Jour., 291. It appears to me, therefore, that this deed must be sustained, and the property held for Mrs. Brown and her children, not subject to the debts of the husband.</p> <p>The next deed is that of the 19th of January, 1825, executed by Charles T. Brown to trustees, by which, in consideration of love and affection, he conveyed to them Sandy Island plantation and forty negroes, in trust, for his wife for life, to her sole and separate use, remainder to her children by Mr. Brown, and their heirs.</p> <p>It was contended for the defendants, that this was not a marriage settlement : and it was important to insist on that, because, if it should be considered a marriage settlement, it was not recorded according to law; for it was recorded in the office of mesne conveyances at Georgetown alone. An attempt was made to supply this defect by proceedings in Court, which were stated. The deed however, acquired no additional strength by these proceedings, and must be decided upon its own merits. *5601 *■*■* aPPears to me, to come clearly within the statutes, and can-J not be sustained. It preceded the renunciation of her inheritance by Mrs, Brown, to her own large real estate, and cannot, I think, be made to come within the idea of a purchase, even with the aid given to the case by the evidence, and by the powerful argument of counsel.</p> <p>I would willingly protect this lady and her children if I could, as she carried, so large an estate in marriage to her husband. But the laws, for wise reasons, prescribe the course which should be pursued to make family arrangements, and to secure their legal authenticity without prejudice to third persons and creditors. If these regulations are neglected, and injury results to the family, it is the fault of those who ought to have interposed and acted more cautiously. The conveyance was in consideration of love and affection, and Mr. Brown was then largely indebted, and no proof that the money of the estate was applied to pay for the property.</p> <p>I am of opinion that this property must, according to the decided cases, be subjected to the demands of the creditors. The decision in Prescott and Hubbell,(a) went very far, and is with difficulty, reconciled to other decisions, and does not conclude this case.</p> <p>The next deed is of the date of Yth of February, 1826, by which Robert Heriot, the Commissioner in Equity, conveys to J. A. Keith, and J. T. Keith, twenty-nine negroes, for the consideration of $10,OH, in trust, for the use of Mrs. Brown and her children. This deed recites, that Mrs. Brown had renounced her inheritance in her real estate, and her husband got the benefit of it: That these negroes were bought with the funds of her father’s estate, and she was entitled to this provision, as a purchaser. This is a difficult part of the case. If we consider the deed as a marriage settlement, then not being recorded, according to the statute of 1823, it would be void. It appears to me however, to have been a purchase, in consideration of the wife’s renunciation of her inheritance in real estate of large value. The property in question, never was vested in Mr. Brown, but passed directly from Mr. Heriot, the grantor, to the trastees, for Mrs. Brown; and the presumption, that it was paid for out of the estate of Mrs. Brown, founded on the state of things, and on the want of private funds by Mr. Brown, and on the evidence, satisfies my mind. It appears to me therefore, though doubtfully, that this deed is valid as a purchase, and must be sustained against the claims of creditors.</p> <p>*It is therefore ordered and decreed, that so much of the bill of complaint as seeks to set aside the conveyance of the 1st of >- June, 1824, for the house and lot in Charleston, and to subject the same to the claims and liens of creditors of Charles T. Brown ; and so much of the bill as seeks to set aside the conveyance of the 7th of February, 1826, for twenty-nine slaves, and to subject the same to said creditors, be dismissed.</p> <p>It is further ordered and decreed, that the property and estates comprehended in the deeds of the 19th of January, 1825, to wit, Sandy Island and forty slaves; and in the deed of 10th of November, 1829, to wit, the Goose Creek plantation, and forty-one slaves, be, and are hereby subjected to the creditors of said Charles T. Brown, according to their legal liens ; and that the same be sold to satisfy the said debts, at the next sale day, or at such times and places, and on such terms, as the Court may direct, under any arrangement made between the parties.— Costs to be paid by defendants.</p> <p>From so much of this decree as subjects Sandy Island and negroes to the creditors of Brown, the defendants, trustees for the wife and children, appeal, and hope the same may be reversed, for the following, among other reasons:—</p> <p>1. That the said deed is not, in any sense of the term, a marriage settlement, but a purchase by the husband of the wife’s inheritance.</p> <p>2. That it was competent for the defendants to prove a consideration for the said deed, beyond the consideration stated in the deed itself; and that the evidence is sufficient to establish that the said deed was the consideration for Mrs. Brown’s release of her inheritance. That the consideration thus received by Mrs. Brown was reasonable, and no injury was done to the creditors of Mr. Brown, as they have had the benefit of the large fortune which Mr. Brown acquired by marriage.</p> <p>The plaintiffs likewise appeal from that part of the decree which dismisses so much of their bill as seeks to set aside the settlement of a house and lot of land in Charleston, contained in the deed of 1st of June, 1824 ; and the settlement of twenty-nine slaves, contained in the deed of 7th of February, 1826, and to subject the said land and negroes to the plaintiffs’ demand; and they move that such part of said decree may be reversed, and the said *land and negroes be ordered to be sold for the payment of the debts to plaintiffs, on the following grounds:— L - J</p> <p>1. That the said land and slaves were purchased with the funds of defendant Charles T. Brown, and the settlements were therefore, without any valuable or sufficient consideration to support the same; and having been made after his indebtedness to the plaintiffs had commenced,’ are fraudulent and void.</p> <p>2. That the settlements embodied in the said deeds are also void, for not being duly recorded in the offices of the Secretary of State and Register of Mesne Conveyances, conformably to the provisions of the Acts of the General Assembly, in such case made and provided.</p> <p>3. That the decree, in the particulars above mentioned, is in other respects contrary to law and equity, and good conscience.</p>

Charleston, May Term, 1836. The following Circuit degree, presents a full statement of the case :— Johnson, Chancellor. In 1828, the late Capt. Messervey, of Charleston, died intestate, seized and possessed of real and personal estate of considerable value, distributable amongst the defendant, Sophia his widow, and six children,' who are the plaintiffs in this bill.

<p>A bill may be sustained here for the specific performance of a contract for the sale of lands in Georgia; and defendant was decreed to pay the purchase-money on condition that plaintiff execute and tender titles to be approved by the Commissioner. [*585]</p> <p>On a sale of land at auction, the auctioneer is the agent of both parties, and his memorandum in writing is sufficient to take the agreement out of the statute of frauds. [*590]</p> <p>And when the auctioneer made a pencil memorandum on a loose slip of paper at the moment of sale, and shortly afterwards entered the sale in his sales book, the latter is regarded as the true entry. [*590]</p> <p>And where the auctioneer entered the sale as made to the agent the contract may be enforced against the principal when he is discovered; and the authority of the bidder need not be in writing. [*590]</p>

<p>Heard at Charleston, April Term, 1835.</p> <p>Chancellor Dr Sausstfre, who presided, pronounced" the following decree, which contains a full statement of the case :</p> <p>It is proper to state the relative situation of the family, and the circumstances of the case, which may be summed up in a short compass. Mrs. Mary Middleton was the widow of Mr. Arthur Middleton, the illustrious signer of the Declaration of Independence, and its vindicator with his sword. He died intestate, after the termination of the revolutionary war, but prior to the statute of February 1191, abolishing the rights of primogeniture, and his real estate descended to his eldest son, xzqo-i Mr. Henry Middleton, one of *the defendants ; whilst his personal J estate was distributable by law, among his widow and children, consisting of his two sons, Mr. Henry Middleton, and ;¡Mr. J. I. Middleton, and his daughters, who respectively intermarried with Mr. Joseph. Manigault, Mr. Henry Izard, Mr. Henry M. Rutledge, Mr. Daniel E. Huger, and Mr. ■-Blake</p> <p>Mrs. Mary Middleton, in her lifetime, conveyed by deed to her second son, Mr. J. I. Middleton, her large real estate ; and by a will, purporting to be hey last will and testament, disposing of her personal estate, bequeathed the ’greater part thereof between her two sons, and gave considerable pecuniary legacies, (as is alleged, and which does not seem to be contradicted,) to each of her daughters (except Mrs. Manigault, who was dead), Afterwards, she executed another will, and died in 1814, leaving the same in full force, by which she disposed of the bulk of her personal estate to her two sons, subject to certain legacies, and particularly a legacy to each of her daughters, of £100 sterling, which was greatly below the legacies under the former will.</p> <p>The personal estate of Mrs. Middleton was appraised at upwards of seventy-one thousand dollars.</p> <p>Some discontents naturally arose in the minds of daughters so slightly provided by a wealthy parent, who bestowed so large a fortune on her sons for notwithstanding the legal right of the parent to dispose of her estate according to her judgment, her preference, or even her caprices, the moral sense of the community and the feelings of families, revolt at any very great disproportion made among children, where no misconduct exists, or is alleged to exist. ¡ These discontents reached the ears of Mr. J. I. Middleton, with the exaggerated report, that the use or the abuse of his personal influence over an aged mother, had produced the effect diminishing her bounty to her daughters, by her last will and testament, to his benefit.- His delicacy revolted at the supposed imputations, and he resolved to vindicate himself from them by voluntarily executing-bonds, to each of his sisters, to the amount they would have been entitled to under the former will of their mother ; and thus relieve his name and character from the suspicion of having exercised an undue influence over his mother, for his own benefit, and to the prejudice of his sisters. He accordingly executed bonds to them, or their husbands, for the sums to which they would have been entitled under the older will of their mother and transmitted them to their respective husbands. These, it seems, were ^returned by all of them, except Mr. Henry Izard, who, it r^-qq seems, consented to receive it, but in a modified form, as appears >- by the two letters of Mr. J. I. Middleton, of the 4th and lYth May, 1815, to Mr. Henry Izard, in which he speaks fully on this subject; and explains his views and intentions, his motive and his acts, in relation to all his sisters. Mr. J. I. Middleton, in pursuance of these intentions, executed bonds, in trust to his brother, Mr. Henry Middleton, with conditions for the payment of certain sums for the eldest daughter of each of his sisters, and placed them in the possession of his brother, Mr. Henry Middleton. He then went to Europe, about 181Y, and has remained there ever since, leaving his estate, including the personal estate, the slaves derived from his mother’s will, in the hands of his brother, Henry, as his attorney and agent: and to apply the income of the estate to the payment of the debts of her estate, and the legacies under her will. The debts have been paid, and, the bond to Mr. Izard’s family has been paid, but no payment has been made on the bond for Miss Mary Rutledge ' now the wife of Mr. Fogg, the plaintiff. After many years, applications were made, by letters, to Mr. Henry Middleton, as the agent and attorney of Mr. J. I. Middleton, for payment, which applications being unattended to, the bill was filed in this Court which makes this case.</p> <p>The defence set up against the claim is stated fully in the answers. In substance, it is, that the bond, though signed and sealed was not delivered, but kept some time by the obligor and then deposited for safe keeping with his own agent and attorney. That it was voluntary, and without consideration, and cannot be enforced in a Court of Equity. And that it was conditional, as to the time of payment, which was to be made after the debts and legacies were paid, without interest till a year after those payments.</p> <p>The first question, then, is, whether the bond in question, is obligatory on J. I. Middleton, so that the same can be enforced in this Court ?</p> <p>It is proven by Mr. Bee, to have been duly executed, and he was a subscribing witness. It was a voluntary bond, in the ordinary sense, as there was no pecuniary consideration. But it was given upon full deliberation, not lightly, and upon a consideration of the highest import to the feelings of the obligor. He saw, and he felt, that the extraordinary preference given to him by his mother, by the conveyance of a great real estate, and bequest of a large ^personal estate, to the disinherison of his sisters, highly estimable in themselves, and who had never *- given offence to their mother, (for that is not pretended,) had produced a painful effect on their minds. They were disappointed of reasonable expectations, and humiliated by parental neglect amounting to a marked preference of another child, and he felt that something was due to their wounded feelings ; and to quiet his own mind, and to secure himself from suspicions, if not imputations of an undue influence exercised over the mind of his aged mother, he, himself, therefore, proposes to give them bonds, equivalent to their expectation under a former will. He, himself, in his letter to Mr. Izard, puts it on that ground. He valued family concord, and propitiates it by doing voluntarily an act M'hich he felt to be a duty to himself, and did not consider it a bounty. He disclaims the idea, over and over again, that it is to be considered by his nieces, as conferring a pecuniary obligation on them. This, then, is a good consideration on M'hich the bond can be supported.</p> <p>It was, however, urged, that it was not delivered to Mr. Henry Middleton, as trustee for the persons intended to be benefited, but as his agent for safe keeping. And that Mr. Henry Middleton did not accept the trust; and, therefore, the act was not perfected. Mr. J. I. Middleton himself, under his own hand, states how he considered the transaction at the time, and how his brother considered it. He says, in his letter, “ In order to effect this purpose, my brother has consented to become a trustee, for bonds, to the amount of the supposed deficit M'hich I have drawn in favor of my eldest niece,” &e, " “I had it drawn in this manner, (stating the manner,) in order to avoid the possibility of its lapsing by any accident to Mary, for whom it is intended. Again, a circumstance stated, induces me to put them all on the same footing, and render the deed irremeable, (as my determination always has been,) through my brother.” In the letter of 11th May, 1815, he says, “A bond drawn in the manner you mention, shall be substituted for that now in theywssession of my brother.” Surely, these various expressions denote a finished act irrevocable; and that bis brother was the trustee, and had consented to act. Can it be permitted to the defendant, to weaken the force or change the character of this transaction, and these clear and positive declarations, by recollections at the end of tn'enty years, stated by the defendant himself M'ith proper caution, as uncertain? Assuredly not.</p> <p>The *Gourt must and will look to the acts and declarations of the oy -I party at the time of its origin, and not to faint and doubtful and ancient recollections and so with regard to Mr. Henry Middleton, the defendant. In his answer, after twenty years, and after being engaged in great public affairs abroad, which drew his attention from minor affairs at home, it is stated, so as to leave it doubtful or questionable, whether the bonds were placed in his hands as trustee or as agent of his brother, and whether he accepted the trust. His brother, Mr. J. I. Middleton, unqualifiedly says he had consented to serve as trustee. Could he be mistaken, when speaking at the very time of the transaction ? Or, is it not more likely, that a recollection, at such a distance of time, should be incorrect? The evidence, too, of Mrs. Kutledge, a lady of the most respectable character, drawn from her reluctantly and painfully, taken in connection with Mr. J. I. Middleton’s letter, is conclusive. She testifies, “that in the month of Oct. 1819, she passed a few days with her brother, Mr. Henry Middleton, at his residence near Washington. During her stay, and the morning preceding the day of her departure, he made her a communication respecting a bond executed by her brother, J. I. Middleton. He stated, that as-they, the witness and himself, might be separate many years, he requested her to recollect, that among other bonds left with him by his brother, J. I. Middleton, there was one executed to him by his said brother, for the benefit of her (witness’) daughter, Mary, now Mrs. Fogg, for one thousand pounds sterling, and that if any thing should happen, she must remember that his estate would be liable for it. She understood that he was perfectly acquainted with the nature of the bond, and regarded his communication as intended to inform her that he held the bond, in trust for her daughter, Mary, although she does not remember that the word trustee was used. The amount of the bond was mentioned, but she does not remember the date.</p> <p>The witness was under the impression that the other bonds alluded to, were of a similar nature to the one he, Mr. H. Middleton, desired her to bear in mind. She supposes this impression arose from her having heard that her brother, Mr. J. I. Middleton, had given bonds in favor of the children of her deceased sister, Mrs. Henry Izard. The counsel for the defendant supposes that Mrs. Rutledge must be mistaken in her evidence. But, surely more reliance is to be placed on the plain, and positive, and affirmative ^evidence of a witness, entitled to the highest credit, r^rq» who gives particulars of time and place, and the occasion of the commuication, on a subject to which her attention was particularly drawn, a few years after the execution of the bond, than on the negative recollections of a defendant, even of the same high character, after a lapse of twenty years.</p> <p>In my judgment, the bond was duly executed, was irrevocable, was placed in the hands of Mr. Henry Middleton, as trustee, and he was bound to take care of the interests of the cestui que use. This is the equity and justice of the case; and is, I think, amply supported by the authorities cited by the counsel in the argument.</p> <p>The only question which remains, is, when it shall begin to bear interest. The condition of the bond is, that the sum of one thousand pounds sterling should be paid in three equal annual instalments, to commence from the day when the debts and legacies charged on the estate of the late Mrs. Mary Middleton, mother of the said J. I. Middleton, shall have been paid and released, with annual interest on the said sum ; which interest shall commence from the end of one year, after payment of debts and legacies, as aforesaid. The plaintiffs allege, that the income of the estate was sufficient to have paid the debts and legacies, some time in the year 1820, and that the interest should commence one year after. The defendants insist, that the income of Mrs. Mary Middleton’s estate, broke in upon as it was, by a defaulting agent, was not sufficient to have paid the debts and legacies of her estate, before about the year 1830, or ’31 ; conseqently no interest is chargeable earlier. This is a point which can only be settled by an account which must be gone into, unless the parties shall agree and fix upon an intermediate time. It appears that the personal estate bequeathed by Mrs. Middleton to her son, Mr. J. I. Middleton, remains in the hands of Mr. Henry Middleton.</p> <p>It is therefore ordered and decreed, that the sum of one thousand pounds sterling, the condition of the bond in question, be paid out of the said estate, together with interest; and that it be referred to the Commissioner, to examine the accounts of the income of the said estate, from the year 1815, and to ascertain the debts and legacies due by the said estate; and to report when the income was sufficient to have paid the said debts and legacies; and to calculate interest on the said bond, from one year after the period *when said debts and legacies could have r^r been paid, which shall be paid out of the said estate. ^</p> <p>On further consideration of this case, it appears to me proper to add, that after the distinct and positive declaration, in writing, by J. I. Middleton, that his brother had consented to accept the trust in question, and after the avowal of the trust by Mr. Henry Middleton, testified by Mrs. S. S. Rutledge, it was not in ¡ais power to disclaim the trust. He had assumed the trust, and acted under it, by paying the money on one of the bonds to the family of Mr. Izard ; and that without any other instructions from Mr. J. I. Middleton, but on his general authority. Again, Mr. J. I. Middleton says, in his answer, that he did not advise his brother to take the ground of defence assumed in the answer, to wit: That the bond was voluntary and revocable, was never formally delivered, and that Mr. Henry Middleton never assumed the trust. This appears to me a plain disavowal of the defence ; notwithstanding the ultimate adhesion to the defence. I cannot, upon the fullest consideration, see any reason to doubt the equity and the legality of decreeing for the plaintiffs.</p> <p>Defendants appeal, and hope the decree may be reversed, for the following, among other reasons :—</p> <p>1. That plaintiffs seek payment of a voluntary bond, never delivered to them, but signed and sealed, and made payable to Henry Middleton, who refuses the trust; so that plaintiffs cannot sue at law. But if they cannot sue at law, they cannot be relieved in equity, for equity never interferes in favor of a volunteer.</p> <p>2. That the bond being voluntary, and the plaintiffs not parties to it, J. I. Middleton had a right, if he saw fit, to recall the money. That he has exercised this right, and Equity will not control the legal right of the obligor, or obligee, or give the plaintiffs a better security.</p> <p>3. That, in point of fact, there was no delivery of the bond: and no acceptance of the trust by the supposed trustee.</p> <p>4. That in favor of a volunteer, relief cannot be extended, in equity, beyond the letter of the deed. Whereas, the decree not only carries the relief beyond the letter of the deed, but, in opposition to equity, makes the defendant liable to the plaintiffs for the default of a third person, and decrees interest from the time when, the debts and legacies might have keen paid, if moneys lost ^without the wilful default of the defend-9 ants, liad been duly applied.-</p>

<p>Testator by Ms will, after a specific bequest gives the residue to his wife for life and at her death “ to the nieces of my wife, in such manner and at such time as my said wife shall think proper.” — Held, that the power of disposing was .nut given to the wife ; that she had no right to divest the legacies so given, nor to disturb the equality of the portions which the will vested in the nieces, but merely to fix on the time and manner of enjoymeut; and that a niece of the husband not being within the description of those named in the will, could not take by the appointment of the wife. [*608]</p> <p>Where the term “ increase of slaves,” is used, it means increase thereafter to be produced. Under a bequest of a female slave and her increase, children of the slave born before the execution of the will, do not pass. [*609]</p>

Before Chancellor Johnston, Edgefield, June Term, 1836. The bill, (filed Sept. 1833) states that S and M. Allen brought their action of assumpsit in Richmond county, (Geo.) against Freeman W. Lacey and David Clarke : that pending the suit (on 1th of January, 1830,) Clarke died intestate. Wm.

Before Chancellor Johnson, Lexington, July, 1836. The bill in this case was filed for an injunction to restrain the defendant from committing waste in cutting down and carrying off the timber from the land in question, pending an action of trespass to buy titles at law, by the plaintiffs against the defendant — alleging that the chief value of the premises, by reason of its vicinity to Columbia, consisted in the timber; and that the defendant is fast dissipating his…

<p>A mortgagee of personalty does not fall within the principle which prevents a trustee to sell from buying at his own sale ; but he holds such a trust character as to throw the burden on liim of showing the fairness of his purchase.</p>

Edgefield, June Term, 1836. Bill for relief, partition, &c. The plaintiff, Nancy King, was the legitimate wife of the defendant’s testator, by whom he had two sons, who are also plaintiffs. About thirty years ago, the testator separated from his wife, and soon after attached himself to the defendant, Mary Johnson, with whom he lived in a state of adultery until his death in 1835 ; and had by her a numerous family, of illegitimate children, who are parties, defendants.

Before Chancellor Johnston, Fail-field, July, 1835. In, or before 1829, the defendants, J. H. Blake and wife, filed their bill against the plaintiff, A. D. Jones, as administrator, and the heirs at law of James Goodwyn.

Abbeville, June Term, 1836. Bill to apportion assets, &c. Report made of demands against H. Gray’s estate, arranged in the order of priority; and exceptions thereto filed. This case was taken up for the special purpose of considering so much of the' Commissioner’s report as is covered by the 1st, 2d, 3d, and 5th exceptions of the administrators of Henry Gray; the rest of the report being still before the Commissioner. Johnston, Chancellor. 1.