12 S.C. Eq.

Volume 12 — South Carolina Equity Reports

45 opinions

12 S.C. Eq. 9Jackson v. Inabinit (1836)
Heard before Chancellor Desatjssuke, Walterborough, January,-Í835. In this case an objection was taken to the want of parties, which forms a preliminary question. It was insisted that Mrs. Inabinit, the' widow and administratrix of Christian Inabinit, deceased, ought to be made a party defendant. It seems to me, after a careful examination of the bill and answer, and the deed in question,-that it is proper that she should be made a party to the suit.
12 S.C. Eq. 16Edwards v. Barksdale (1836)
Heard before Chancellor Harper, at Coosawhutchie, February) 1836. It was referred to the commissioner, to inquire and report who-are the next of kin of the intestate, Thomas H. Barksdale. He reports on the evidence, that Thomas B. Bona is a first cousin of the whole blood ; and that George Edwards, Mary Holbrook,- Coe, and-Kirk, are first cousins of the half blood ; and submits to the decision of the court who are the next of kin. Thomas B. Bona excepts to the report, on the ground that the commissioner should have reported him the ohly next of kin, entitled to the estate under-the statute of distributions. The statute provides, that “ If the intestate shall have no lineal descendant, father, mother, brother or sister, of the whole blood, or their childien ; or brother or sister of the half blood, or lineal ancestor, then the widow shall take two-thirds of the estate, and the re.-jmainder shall descend to the next of kin.” If no widow, the portion allotted to her is to go as the remainder. The questions are, whether the half blood are included at all under the description of next of kin; or if admitted, whether they are put on the same footing with kindred of the whole blood, or postponed one degree. The terms of the act, in their plain and literal import, certainly do include the half blood. Being descended from a common ancestor, they are no less of kin than the whole blood ; and according to the method of computation pointed out by the act itself, these claimants all stand in the same degree to the intestate. By the English statute of distributions, (22 and 23 Car. 2, C. 10,) which was of force in this State previously to the passing of our own act of 1791, if there are no children, the estate is given to the next of kin. Under this statute, it has been always 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. But it is argued, that the act of 1791 is an act of descents, not of distributions; the disposition of real estate is first provided for, and then it is provided that the distribution of personal estate shall conform to it. In construing a statute of descents, we must have reference, not to the English statute of distributions, which received its construction from the civil or common law, but to the common law of descents. That law is still of force, unless in so far as it has been altered by the statute; and in giving construction to the words “ next of kin,” we must take them'to mean such next of kin, as on general, principles of law, are qualified to take. For example, if the next of kin were an alien, he is within the letter of the law, yet no one supposes that he can inherit land ; or if statute similar to ours were' passed in England, that an attainted person could inherit: Let us examine the act by the rules prescribed by Lord Coke, in: Haydon’s case, 3 Rep. 7. 1. What was the common law, before the making of the act. 2. What was the mischief and defect for which the common law did not provide. And, 3. What remedy the legislature hath resolved and appointed, to' cure the disease of the commonwealth. We know what the canons of the common law were, in relation to' descents; and we perfectly well know the evil which was intended to be remedied. The complaint was that' the estates of deceased' persons were distributed, not as it was supposed nature and affection would have prompted the owner to dispose of them, but by certain artificial rules arising out of the feudal system which had ceased to' exist. The eldest son was preferred to the younger; though these were equally near in blood, and it may be presumed, in affection, to' the father. So sons were preferred to daughters; and in the more' remote relations, males in every instance to females. The act corrects all this ; all children on the same footing, and sisters on the same footing with brothers. Why should it not be contended, that under the clause in question, male next of kin should be preferred to, female 1 The expressed object of the act is, “ to abolish the right of primogeniture, and to give an equal distribution of the real estates of intestates.” A general purpose, which runs through the whole act, and may be detected in every one of its provisions, is to distribute the estates of deceased persons among their kindled,'according to propinquity of blood; supposing, what is in general true, that affection is according to nearness of blood. Keeping in view this general purpose of the act, we may more easily arrive at its true construction. On the same reasoning which was used in this case,- it might be' contended that the next of kin, to take under the act, must be of the blood of the first purchaser. But when we recollect the origin of that rule,-the strictly descendable nature of feuds, and that upon failure of descendants they reverted to the lord, and call to mind the general purpose of the act above mentioned, we shall hardly ' conclude' that a man’s laud may escheat to the State, though he may have near kindred to inherit it. So it might be supposed that when the intestate was the first purchaser of the land, the heirs on the part of the father should inherit,in preference to those on the part of the mother. If this were admitted, then the most remote relation on the part of the father would' inherit, in preference to a very near one on the part of the mothers But this would be opposed to the purpose of the act, which puts’ males and females on the same footing. No distinction is known ia nature, between the affection for relations on the part of the fathej'i- and those on the part of the mother. Other such instances might be put. So in the case of the half blood. Mr. Hargrave, in his note to Coke Lit. 140, n. 30, refers to Wright’s Ten. 184, where the exclu-sien oí the half blood is supposed to be a consequence of the rule for restricting the succession to the descendants of the first feudatory. Mr. Cruise, in his Treatise on Real Estates, (3d voh 365) supposes it to have been derived from the Norman customs, by which the half blood by the mother’s side was excluded, when the inheritance descended from’ the father, and vice versa ; which he supposes to have been in time extended to the entire exclusion of the half blood. He refers to the Grand Coustumier, C. 25. There can be little doubt, but that it must have originated in some such feudal reason, for it is not founded in nature. Can we suppose it conformable to the spirit of our act, that the most remote conceivable kinsman of the whole blood shall inherit, in preference to the children of a brother of the half blood? Or if there be none of the whole blood, that the land shall escheat? For if the next of kin of the half blood are not put on the same footing with those of the whole blood, the consequence must be, that they are excluded altogether.- With respect to the alien, the purposes of the act of 1791 have no imaginable connexion with the policy of the law which disables such an one to hold land within the State, and construing according to its spirit, I may well conclude that the act did not intend to embrace him, though in strictness comprehended within its letter. But certainly I can find nothing in the act to authorize me to exclude the half blood, who are expressly within the letter. Nor can the half blood, as contended for, be postponed one degree. According to the reasoning 1 have used, if the half blood had not been specifically mentioned at all, they would have been included in the act, and placed on the same footing with the whole blood. In certain enumerated instances, however, they are postponed one degree. Am I, from this, to infer that they are to be, in like manner, postponed in every other instance, where no such thing is said. The contrary is rather the legitimate inference. I may suppose that it would have been more conformable to nature, that the half blood should have been postponed one degree throughout, and conjecture that only through some casual inattention of the Legislature, it was net thus expressed. But, certainly, I am not at liberty to depart from the plain terms of the act, upon such a conjecture. [ am happy to find myself supported in ihis conclusion by the decided cases on the subject — that of Karison vs. Lowndes, 2 Eq. Rep. 210, and by the authority of Chancellor Desaussure, in Guerard vs. Guerard, reported in a note to Wren vs. Carnes, 4 Eq. Rep. 405. Nor do 1 regard it as at all inconsistent with the determinations in Wren and Carnes, and in Lawson vs. Perdriaux, 1 M’Cord, 456— that by the act of 1797, amending that of 1791, and providing that where there is a father, or mother, and brother, or sister, they shall take equally — brother, or sister, of the whole blood only is meant.. Upon the particular provisions of both acts construed together, 1 should certainly arrive at the same conclusion. It is adjudged and decreed, that the said Thomas B. Bona, George Edwards, Mary Holbrook, -Coe, and -Kirk, are the next of kin of the intestate, Thomas XI. Barksdale, in equal degree, and ¡equally entitled to his estate. WILLIAM HARPER.
12 S.C. Eq. 19Heriot v. McCauley (1836)
Heard before Chancellor J. Johnston, Georgetown, January Term, 1835.
12 S.C. Eq. 22M'Cauley v. Heriot (1836)
Heard before his Honor Chancellor Desaussuee, at Georgetown, January Term, 1836. Commissioner’s Report.
12 S.C. Eq. 32Oswald v. Givens (1837)
IN CHANCERY — Beaufort District. The only question 00 which an appeal is taken, is that embraced in .the first and second exceptions to the report of the commissioner. The following extract from the Chancellor's decree,, will present the point very clearly. “ The ease comes up on exceptions to the commissioner’s re. port.
12 S.C. Eq. 33Thompson v. Buckner (1837)
Heard before Chancellor Harper, Coosawhatchie, February Terra, 1836. On the 2d' of August, 1816, administration was granted" to the defendant, James T. Buckner, of the' estate of Hance M'Culloch, then lately deceased, whose estate wag' appraised at more than $12,000. He continued in the administration until the — of July,' 1321, when his administration was revoked on the application of his sureties, in 1830, administration de bonis non, of Hance M'Cultoch’s estate, was committed to David C.- Campbell, who renounced in the same year ; and in December, 1833, administration de bonis non, was committed to the complainant. The bill is for an account of the estate of Hance M‘Oulloch, in the hands of the' defendant. ■ Defendant by his answer, admits the facts stated, with regard to the grant of the several administrations, and the revocation of his ówii. lie states, however, that lie paid off all the debts of the intestate and accounted before the Ordinary. He states that Hance M'Culloch, left only two children, or distributees, to wit: a son named Thomas B. M'Culloch, and a daughter named Elizabeth,who was the defendant’s wife ; that on the 4th March, 1816, the" said Thomas B, M'Culloch, by deed, assigned to the defendant, all-his interest in his father’s estate. Defendant claims that having paid off all the debts, and being himself entitled to the whole estate, in right of his wife,, and under Thomas M'Culloch, deceased,, he is not liable to account. If the case made by the answer, were sustained, there-could be no doubt that he would be entitled to a decree. The court would not do such a thing as to compel a defendí.-ant to account for an estate which he would be forthwith entitled to receive back. The execution of the deed of Thomas B. M'Culloch, was admitted, but evidence was offered to shew it to be fraudulent. Thi# testimony was objected to on the part of defendant, and the objection sustained, by the court. The transaction was a final admtnis-tration of the estate, so far as Thomas B’ MCulloeh was concerned. If it was a fraud on his creditors, the deed might still be good, as between the parties, and none but his creditors could impeach it. If it were obtained by a fraud practiced on Thomas Bt M’CulloCh himself, none but himself, or bis legal representative, could Call it in question. He is understood to be dead, but suppose he were living and did not think proper to impugn it, could the administrator de bonis non, avoid it on his behalf without his concur, rence ? It can make no difference that he is dead ; his legal representative stands in his stead, and is alone competent to litigate the validity of the deed. For the same reason, the will of Thomas B. M'Culloch, which was said to dispose of this pioperty, was rejected when offered. The executor of that will, if an executor were appointed, or if not, an administrator cum testamento annexe^ is the only proper person to sue. Evidence was also offered, of proceedings on a bill-in Equity by the wife of the defendant', against him for alimony, and a decree that her portion of her father’s estate,should be settled on her to her separate use. This also was objected. to,, and the objection sustained. The object of the present suit was stated to be-for her benefit, and that she might be satisfied with her decree. But this is plainly unnecessary and contrary to principle. If any other distributee had obtained a decree- here, could, the administrator de bonis non, call the former administrator to account for the benefit of that distributee ? What difference does it make that the distributee was the administrator’s wife? If the decree was that defeudant should settle the estate on her, it is implied that he shall account first. What forbids her to enforce that decree, or if there be any defect iu the directions of the decree, they may be 'supplied by proceedings to have it carried into effect. Then evidence was offered to shew debts existing, against the estate of Hanee M'Culloch, on account of which the administrator de bonis non, is supposed to sue. This consisted of certificates from-the clerk’s office of Colleton and Beaufort districts, of judgments of H-ance M‘Culloch himself, and against the defendant as his administrator, standing apparently unsatisfied on the record. It was objected that these ought to be regarded as satisfied from lapse of timo, and so I should think. The latest judgment against Hance M'Culloch, was near twenty.two years before the filing of the bill, and the- latest against the- defendant as administrate»!:, near nineteen years, and these are circumstances to corroborate the presumption. There are various reasons why the bill could not be sustained on the score of the judgments, but a conclusive one is, that the judgment creditors are not before the court, nor claiming any thing upoa them. If they were, they would be required to make affidavits ¡that their judgments were unsatisfied before they would be received. The complainant is a trustee on their behalf. In the case of Stoney vs. Shultz, decided by the Court of Appeals at its last silting at Columbia, the assignee of an insolvent debtor, when creditors •bad been advertised for, objected to the distribution of the fund among the creditors who were .before the-court, on the ground of such judgments standing apparently unsatisfied on the record. The court held, that though a trustee for all creditors, it. was dot his duty to go in search of creditors, and that they could take notice of n© creditors, hut those who had presented .their demands duly ■verified by affidavit. By parity of reason, if the estate were in the hands of the complainant, and distributees were suei.-ig him, he could not claim to retain a fund to meet those judgments ; he could pot do so at any time after the expiration of the year and day. Creditors who had not within that time rendered tbeir demands, would be left to their remedies of pursuing the estate in the hands of the distributees. Shall he be permitted to recover against defendant, that he may hold the fund, upon a surmise that these claim* snay he one day brought forward and established. It is ordered and decreed, that the bill be dismissed with costs. WILLIAM HARPER. Grounds of Appeal. 1. Because the administrator of Hance M'Culloch, did not finish and complete his duty as such — inasmuch as he did not pay the debts and cause distribution to be made, but held the estate unad-ministered, until the administration was revoked, and thereby became liable to account to the administrator de bonis non. 2. Because the decree of the Court of Equity prevented the attaching of the marital rights, and until a final account, the possession, by the administrator of M‘Culloch, was not sufficient to transfer his wife’s share. 3. Because the mere allegation of a conveyance from the other distributee, was not a sufficient accounting for his share. 4. Because the Chancellor, instead of dismissing the bill, should .«n his own principles, have retained the bill and directed that the legal representative of Thomas B. M'Culioch, and the judgment creditors of Hance McCulloch, be made parties. 5. Because there was no proof of any account before the Ordinary ; on the contrary, his accounts shew a large inventory and only some partial payments, and no final account was proved or ' pretended. N. B. The decree is mistaken in the statement that the execution of the deed of Thomas B. M'Culloch was admitted. It was admitted that such a deed has been set up and alleged, and evj* dence was to be introduced to shew it void. JB. F. HUNT, Appellant’s Solicitor-.
12 S.C. Eq. 35Gray v. Givens (1837)
Heard before Chancellor HaREEb, Beaufort District, February Term, ISS©. The only object of the bill which it is necessary to Consider, is tor obtain partition of a tract of land of which Joseph John Jenkins* deceased is admitted to have been seized, at the time of his death. The bill also claimed a number of slaves, and this seemed the wore' material part of it. But this claim was abandoned, being manifestly unfounded, and, as it seemed to me, in some degree vexatious.
12 S.C. Eq. 44Bona v. Davant (1837)
Heard before Chancellor Desausstjke, Coosawhatchie, June Term, 1836. The question in this case is one of commissions charged by Mr. Da-vant, the commissioner. The facts are as follows: Under certain proceedings in partition, lands of the estate of Henry Bona, were sold by the former commissioner, Mr. Joyner.
12 S.C. Eq. 47Jacobs v. Perryclear (1837)
Heard before Chancellor Desatjsstjee, Coosawhatchie, January Term, 1885. 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 complainant, as trustee, for certain uses therein set forth. That the deed of settlement was recorded in the office of the register of mesne conveyance, in Beaufort distiict, but omitted to be recorded, from ignorance of the law, in the office of the Secretary of State. That no portion of the legacy came into the hands of the complainant : but he was informed recently by the solicitor employed to recover the legacy from the estate of Stevens, that by a decree of this court a certain sum of money was due complainant, as trustee of Mrs. Slowman. The solicitor also informed him, that he had accepted an .order of James Slowman, in favor of Myer Jacobs, made alter the marriage, and that he must retain that amount in his hands, and that other creditors of James Slowman, would seek to make the legacy to Mrs. Slowman, when reduced to possession, liable tor the dents of said Slowman The complainant states, that as the legacy has never been in the pos■session of said Slnwumu, it may be considered as impounded in this court, being in tne lianas of the solicitor, who recovered the same for Mrs. Sion man, lrom the .-state ot Stevens; and that the assignment of the husband, ought not to prevail against the equity of the wife, more especially as the husband had previously ixeeuted the deed, by which the rigid to the legacy was conveyed to complainant, as trustee for Mrs. Slowman. That complainant has refused to acknowledge the right of the said Myer Jacobs, to be paid out of the fund now in the hands of complainant's solicitor in the suit under which the leg toy was recovered. That as the marriage deed was recorded in ti.e office of the district, in which all the parties resided, and had been drawn up by the gentleman at the bar, then and now the attorney, solicitor, and age„t of the satd Myer Jacobs, as well as of the said Sarah Slowman, this ought to be considered as notice of the existence ot the deed of settlement. The bill, therefore, prays that the claim of Myet Jacobs, may be declared invalid, and that James Slowman, may be ordered to make a sufficient settlement of his wife’s property. The answir ot James Slowman, admits the execution of the marriage settlement, and that he subsequently drew the order on lhe solicitor, who had recovered the legacy for Mrs. Slowman, in favor of Myer Jacobs, as before stated. That he did not mean thereby, to defraud his wife and children, or to deteat their rights under the deeo, but that having been informed that the deed was void, for want of being tuliy recorded according to law, he thought himself at liuerty to draw the order he did, on the fund in favor of one ©f his creditors. That he is willing to do justice to bis creditors-as far as in his power, and also to his family, as the court may order and direct. The answer of Myer Jacobs, insists upon his rights under the order drawn by James Slowman, on the solicitor, who recovered the legacy in question, which was accepted by him. The answer denies any notice of the deed of settlement, and insists that the' same not being' duly recorded, is void as to creditors. The facts appear to be, as stated in the pleadings, and upon them; the question arises, whether the order of the husband, in favor of Myer Jacobs, to pay a debt of his own, on the solicitor who had recovered the legacy to Mrs. Slowman, and held the fund in his hands, and which order the solicitor has ac«epted, is such an assignment of the wife’s equity, as will transfer to the said creditor,a right to be paid out of the fund,- to- the prejudice of the wife and children. Tire uses and trusts expressed in the marriage settle, ment, were, that the trustee should permit the said Sarah Oswald,- and her assigns, to receive and take the rents, wages, profits, and emoluments, and increase of the said legacy, to her sole and separate' use and benefit, during her natural life,free from the control, debts, or engagements of her intended husband, James Slowman, and her receipt to be a sufficient discharge to said trustee : and upon her’ death in the life time of the said James Slowman, then the trustee' should assign and transfer the said legacy or bequest, and the proceeds from it, to and among the children of the said Sarah Slow-man. The question as above stated, is. whether under the circumstances of the case, the order drawn by James Slowman, the husband of said Sarah, the legatee, on the solicitor who recovered the legacy from (he estate of Stevens, is such an assignment of his inte--reals in the legacy bequeathed to his wife, as vested an interest in the assignee, to the prejudice of the rights of the wife and children, under 1 he deed of marriage settlement.? This order was an informal mode of assigning any interests, which the husband might have in the legacy, but as there is no particular mode prescribed by law, for transferring such an interest, J am of opinion that it may be considered well enough to carry whatever interests the husband bad in the legacy, to the extent oí' the order. The question then arises, what interest had the husband in the said legacy ? If there liad been no marriage settlement, the husband would have had such an interest therein, as to have been able to assign the same, and if the assignee could have obtained the interest assigned, without coming to (his court for its aid in procuring the fund, he would be able to hold it. But if he were obliged to come to this court for its aid, that would not be furnished without a proper provision for the wife out of <he fund. In this case, however, there was a marriage settlement, duly executed before the marriage, by which tha husband had joined in conveying to a trustee, this legacy then un-recovered, to tiie sole and separate use of the wife, free from his control or debts, and after her dealh to her lawful children. By that instrument the husband pasted with all the rights and interests which he might have acquired by the marriage, and of course the right of transferring or assigning, any in the legacy in question to his creditors. It is, however, argued, that the marriage settlement, not having been recoided according to the provisions of the statute, the same is void, and that the creditors of the husband have a right to avail themselves of that defect, and obtain payment of the debts due to them out of the fund. There is no doubt, that the non-recording the instrument according to law, avoided the same as to creditors, and they are at liberty to enforce their legal processes as far as the same could be used. But a power to enforce their legal remedies would not enable them to touch a legacy, or money, in the hands of an attorney or solicitor ; an execution could not be levied on it. Then it can be reached only by application to this court, on the equitable rights of the parties. Now if we examine these, it appears that the husband had parted with all the interests he might acquire to the legacy in question, by executing a marriage settlement to a trustee for the benefit of his wife and children. Thai instrument was void as to creditors for want of due recording. But it was valid as between the parties. The husband was bound by it, and however his creditors might lay hold of the fund, if they could get at it by legal processes, the husband could do no act to affect it. He was not at liberty to assign it to his creditors or any body else, and they could not, by the order of the husband, who had parted with all his rights to the trustee, acquire any power over this equity. If the solicitor, who had been employed to recover the legacy for the trustee of Mrs. Slowman, had not accepted the order of the husband, to be paid out of the fund in his hands, the creditor, Mr. Myer Jacobs, must have come here to obtain the effect of his order, and his equity would have been resisted by the equity of the wife, which existed independent of the 'settlement. But the acceptance of the order by the solicitor, has in some degree changed the situation of the parties, and obliged the trustee to come here for protection. The question, arises, was the solicitor at liberty to do so ? For the purpose of recovering the legacy, he was the agent of the trustee for the benefit of the cestui que use, and when recovered, he had no authority over the fund. It was at the disposal of the trustee, and should have been paid over to him who was the real employer. He had no authority to change the situation of the parties by any act of his, or his own position, as the solicitor of the trust estate, for that of a stake holder. It was for the court to decide what effects flowed from the non-recording the marriage settlement. The act of acceptance by the solicitor, was, therefore, a nullity, done no doubt with good intentions, and to promote, as he thought, the purposes of justice. ■ But he transcended his powers, tor it is understood, he had no authority from the trustee, to accept orders or make payments to the husband’s creditors, out of the trust fund ju question. This acceptance then, being put out of the way, the complainant is entitled to a decree, directing that the fund be paid over to the trustee. Should the creditor, however, be disposed to persevere in his claim, he may still, perhaps, file his bill, and Seek- his .redress against the trustee and the trust fund. it is ordered, that the trust fund recovered on the legacy, be paid over to the trustee. HENRY W. DESAUSSÜRE. Grounds of Appeal. 3. Because Slowman’s order on his solicitor, in favor of Jacobs, for four hundred and eighty-five dollars, was a legal and valid assignment of so much of his wile’s legacy, and being for valuable consideration, gave the assignee a claim paramount to the rights of the trustee under the recorded deed of marriage settlement. 2. Because the assignee is a bona fide and fair creditor, as well as a purchaser for valuable, consideration, without notice, and is by the principles of equity, as well as by the positive enactments of the legislature, entitled to payment from the property covered by the marriage settlements. S. Because, if the defendant, Jacobs, can procure redress, as the chancellor intimates in his decree, “ by filing a bill against the trustee, and the trust fund,” the decree in this case, should have been in his tavor, inasmuch, as all the parties to be affected by such a decree, as well as the fund itself, were in court. 4. Because there is nothing in the shewing of the complainant, to give jurisdiction of his case to a Court of Equity, as against the defendant, Mr. Jacobs. 5. Because the decree is in other respects, Contrary to the principles of equity, as is settled by decided cases, and contrary to the uncontradicted facts in the defendant’s (Mr. Jacobs’) answer, and Ought to be reversed. TREVILLE, Appellant’s Solicitor.
12 S.C. Eq. 53Horry v. Glover (1837)
Heard before Chancellor Harper, Colleton District, May Term, 1836. Daniel Heyward, by his will, dated in 1778, gave to his brother Thomas, in trust for Ins (testator’s) wife, for life, his plantation, known by the name of Springfield, together with all the negroes, plantation utensils, stock of cattle, hogs, and sheep ; also, tweuty head of cows and calves, from his plantation called White Hall. All the residue of his estate he gives to his brother, Thomas Hey-ward. ' The testator died soon after, and his widow, Mrs. Margaret Heyward, went into possession of the property devised in trust for her. Mrs. Heyward, in the year-, married Wilson Glover. The bill charges that, during the coverture, she was in possession of all that estate she derived from her first husband, Daniel Heyward’s will, as her own and separate estate, and enjoyed the same free from the let, control, or interference of the said Wilson Glover, and continued in like manner, in possession after his death, (she having survived him,) until her own death in 1832. Thomas Heyward, the residuary devisee of Daniel Heyward, by his will, gave his whole estate, real and personal, to his wife, Mrs. Eliza Heyward, and she by deed executed in 1832, released to the complainants, Elias Horry and Paul Trapier, all the revisionary interest which Thomas Heyward took in the personal es-. tate of Daniel Heyward after the life estate of Mrs. Glover, in trust for the complainants, Mary A. and James F. Heyward. The bill charges, that the slaves who constituted part of Mrs. Glover’s life estate, were by her, in her life time put into possession, by way of loan, of her son, John Heyward Glover, now also deceased, and at his death came into the possession of his executors. The object of the bill is to obtain the delivery of the slaves who were given by Daniel Heyward to his wife, afterwards Mrs. Glover, for life, or their descendants, and to have an account of their hire from the death of Mrs. Glover also to have an account of the cattle, &c. The executors of John Heyward Glover, the surviving executors of Wilson Glover, and the administrator of Mrs. Glover, are made parties to the bill. The first question made, was, whether the bill would lie, as the complainants have adequate remedy at law, by an action of trover or detinue. Independently of considering the tenant for life as a trustee, bound to account, and therefore, amenable to this court, it has been determined by the Court of Appeals, in the case of --, decided at Columbia the last spring, that as a general rule, a bill may be maintained for the specific delivery of slaves. Some exceptions are stated, but this case does not come within the exceptions, but within the express reason of the rule. Entertaining jurisdiction for this purpose, the court will do complete justice between the parties, in relation to the whole property and the matters of account. Then it becomes merely a matter of evidence to identify the slaves who are subject to the disposition of the will. By the inventory and appraisement of the estate of Daniel Heyward, made in 1783, it appears that there were then on the Springfield plantation, twenty-two slaves, who are named. It is not surmised that any of the original slock are now in existence, but those now claimed, are claimed as the descendants of the former. The testimony chiefly relied on by the complainants, is, that of the witness, John Fereebee. This witness thinks, he heard John. Heyward Glover, say the Heywards had some claim on negroes after his mother’s death. Witness “ thought they were the negroes that he said belonged to his mother. He said, one woman at Wrightfield, named Funny, belonged to his mother. Fanny is now alive, and has, he believes, fourteen children and grand children. Nancy and her children, Solomon, Venus, Phillis, and November— one of these mentioned, died last fall, aged about four years — Sam, Robert, June, Stephen, Adam, June, Affie, Sylvia; Sally died last week, she was about four years old. Witness says, lie rcognizes some of the negroes of H. Glover’s estate, by the name of Springfield gang, has heard the negroes call them so, and no one else. Fanny and her children and grand children are a portion of them ; also, Charley, Sampson, Joe, Tom, Harriet, Monday, Tirah, Rachael, Mary Ann, Accabee, Hannah, Toney, Polly and children.” An objection was taken to the last part of the witnesses’ testimony — that the negroes called these the Springfield gang — as being hearsay from slaves. But it docs not strike me in that point of view. The effect of the testimony does not depend on the credit to be given to the slaves whose declaration are testified to. The fact that the slaves did call them so, depends on the credit of the witness who was examined. Then the inference is drawn from that fact, that it cannot be conceived why the slaves should have called them so, if they were not so in fact. It is as if the witness attempting to identify them by their names, had testified that the slaves called one Fanny, or another Toney. This could not be called hearsay. Another portion of the testimony of the witness, with aspect to what bis toother told biro, Í consider inadmissible. This testimony is, I think, entitled to its weight, but it is very strongly corroborated by other circumstances. For the part of the defendants there is opposed to it the testimony of the witness Richard Y. Carey, (who was examined, however, on the part of the complainants.) The testimony of this witness was given in a very confused and precipitate manner, and I may not have taken it down with perfect accuracy. The amount of it was, that he was in the service of John Heyward Glover, managing- his plantation, from 1810 to 1821 ; that there were a certain number of slaves, (eight altogether,) known as the Springfield gang, who were first removed from Springfield, to a place called the Old Store, and thence to Mr. Glover’s plantation of 'Wrightfield ; these -were mostly super* annuated and are dead, without children. In this last particular, he js corroborated by Ferrabee. But thus far his testimony is not inconsistent with that of Ferrabee. There may have-been other Springfield negroes besides those brought fiom the Old Store to Wrigmfield, unknown to the witness, indeed he says, Col. Glover did not pretend to point out all the negroes that were to go to Judge Heyward’s family after his mother’s death. But he adds, that in ISIS, he with the assent of Col. Glover, gave to James' Heyward a list of those slaves, then amounting to eight. In this there seems to be some contradiction. With respect to Fanny the witness is more explicit. He states that she was not one of the Spriugfield negroes. He kuew her at about the age of nineteen, when she was brought from Wilson Glover’s Swamp plantation. This Í suppose to be his reason, for not thinking her one of the Spriugfield negroes, in addition to his never hating heard her so called. This seems to be in some degree contradictory of Ferrabee, but it is not absolutely inconsistent. She may have been sent from Springfield to the Swamp and thence to Wrightfield. If there were more direct contradiction, however, 1 think the circumstances give the preponderance to Ferrabee’s testimony. First, the intrinsic improbability oí such a gang of twenty.four slaves, pretty well apportioned as respects men and women, becoming extinct during a lapse of fifty-three years, and defendants indicate no other slaves as being descendants of the stock in question. Mr. Nathaniel Heyward, who was examined as a witness, stated that he never heard of the Springfield gang of negroes having died, or of any extraordinary decrease ; and from his opportunities of knowing this could hardly have occurred without his having heard of it. The testimony of Mrs. Hamilton, was, that about the time referred to by Carey, (25 years ago, which must have been about 1810, or 1811,) Mrs. Glover passing by the Springfield plantation, spoke of the gang of slaves as then existing on it. But more satisfactory than these is the testimony of Mr. John Huger. He states, that a short time before the death of Heyward Glover, lie saw a list of the negroes, in the hand writing of Hey-ward Glover, which was sent by him to his mother, with an offer to deliver them up. These negroes the witness heard Wilson and Mrs, Glover, speak of as connected with the will of Daniel Hey-ward. Mrs. Glover offered them to the witness for her life, hut' he declined receiving them. According to the list, they then amounted to 25 or 30. He believes the negroes are now at Wright-field. Mr. Huger identifies no particular negroes, but the number stated by him agrees very well with the number .now claimed. It was agreed, however, at the hearing, that the estate of Wilson Glover and Mrs. Glover, have been divided between their children, Heyward Glover and Mrs. Huger, (wife of John Huger;) and on that division the negroes at Wrightfield, (by which, I understand the negroes now in question,) were not divided or brought into account. Now connect this with the testimony of Mr. Huger, and can 1 possibly avoid making the inference, that they were reserved from division on the knowledge of the parties, that Mrs. Glovers’s interest in them had terminated with her life, and that they were not subject to division. Nor is this inference weakened by the testimony on the part of the defendants, to shew that there had been an unusual mortality among the Springfield negroes. A paper was produced, ill the hand writing of Wilson Glover, purporting to be an account of the slaves in 1783, and having the word “ dead” writ■ten opposite to many of their names. Ido not understand this to purport that they were then dead. The paper is an account of slaves then removed from the Spriufield plantation. I conclude the memorandum “ dead,” to have been made afterwards ; perhaps at various times, as the deaths occurred. If so, it affords no evidence that the gang did not increase. No doubt all the original stock are dead now. The births of two children are noted in 1783. This seems to have been done at the time of making the list, and I suppose they were then born, but the paper does not purport to give any account of births afterwards. But if all so marked were dead at that time, it may very well be that the residue have increased to the number now claimed. Nor do I attach any importance to the testimony of the witness, Broughton, that heard Mrs. Judge Heyward say, she believed they were all dead, or of Mrs. Jane Glover, that she heard of the negroes having been re. m'oved to Pedee, and of great mortality among them there. It is plain that there must have been some unusual mortality among them, or their numbers would have been much greater than they are.Within the same time many stocks of slaves have doubled or trebled their numbers, while the number now claimed is about the same as that of the original stock. I think on the evidence, the complainants claim must he sustained. But I think there is much force in the argument of counsel, that the tenant for life was trustee for the remainderman, and the burden is on her legal representative to account. For many purposes the tenant for life is regarded as trustee. He is bound to make an inventory of the property, that the remainderman may be able to identify it; and by parity of reason, it seems to me that in the particular case of slaves, where the increase goes to the re-mainderman he is bound to keep an account of the increase. Certainly the defendants have not shewn the stock of slaves in question to be extinct. The n iq default of accouating, how shall- the estate of the tenant for life be charged ? I can conceive of no other method than this, to charge it with the value of such a number of slaves as the original stock may reasonably be supposed to have increased to — subjeet to be sure, to evidence of any peculiar circumstances, accident or mortality, which may have prevented increase It seems to me that it would he to the disadvantage of de. fendants to- be charged in this manner. Complainants, however, claim no more than the negroes specified; and to those I think they are entitled. Complainants also claim the value of one or two of the slaves,, who died alter the termination of the life estate, and before the hearing. In the case of-., decided by the Court of Appeals at Columbia, at its last sitting, it was held, that in an action of tro-ver, where one of the slaves had died in possession of defendant) the measure of damage was the hire up to the death, or the interest on the value from the time of the conversion ; but the jury were not bound to give the value of the slave when living, unless: there were reasons to believe the death, in some manner, a eonse. ’ querice of the defendant's act. Upon further examination, I have some reason to doubt, whether that case was sufficiently considered. But as it is, I roust be governed by it, and this claim must fail. Complainants are also entitled to hire of the slaves from the 1st of January, 1838, until they shall be delivered. Evidence was offered of the value of the hire, to save the necessity of a reference ; in which course I understood both parties to acquiesce. There were shown to be fifteen working hands, and the average value of hire for the years in question, was fixed at $60 per annum, making $000 per annum. Complainants are also entitled to the value'of the stock of cattle, hogs, and sheep. By the inventory of 1788, it appears that there were then on the Springfield plantation, 188 head of cattle, 39 hogs, and 61 sheep. The value of the cattle was agreed to be $5 per head; but there was no evidence as to that of the hogs and sheep. The ground was taken that a bequest for life of this sort of property, which was said to be consumable in the use, gives the entire property. But this is contrary to the well settled rule. 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 slock. The principle is explained by Judge Nott, in the case of Devlin vs. Patterson, referred to and recognized in Robertson vs. Collier, 1 Hill, Ch. R. 370. Such is the rule of the civil law, from which ours is taken, Domas B 1, Tit. 11, Sec. 451. The case of Randall vs. Russell, 3 Merio, 190, which was relied on, was one in which the stock of cattle, &e. was held to have been given absolutely by the terms of the will. Another question arises, what estate is to be charged with these ? There is no shewing that the cattle went into the possession of John Heyward Glover. I cannot charge the estate of Wilson Gloyei with theüJj contrary to complainants own allegation, that Mrs. Glover retained her whole property as a separate estate. The' estate of Mrs. Glover is certainly liable, but her administrator an.' swers, that he has received no effects oí his intestate, and has been informed that she died possessed of no effects besides some articles-in her personal use of little value. It is true that it was agreed that the estates of Mrs. Glover and Wilson Glover, were divided between Heyward Glover and Mrs. Huger, but there was no evidence, as to what her estate was. 1 may conjecture that there was an estate of Mrs. Glover, divided betwen her children before administration. If Heyward Glover did in this way receive enough of his-mother’s estate tor the purpose, it might be followed in the hands of his representatives, and rendered liable for a moiety of the demand. But there was no proof of this, and 1 cannot decree upon Conjecture. The complainants may have a reference upon this matter if they think proper. It is ordered and decreed, that the defendant, Mrs. Eliza Glover, executrix of John Heyward Glover, deceased, deliver to the complainants the slaves before enumerated, which are now in her pos--session, and pay for the hire of said slaves, at the rate of nine hundred dollars per annum from the first day of January, 1833, .until-the said slaves shall be delivered, with interest on the hire of each-year from the end of the year. WILLIAM HARPER.- The defendants appeal on the grounds 1. That the complainants had plain and adequate remedy at'law,- and therefore, equity ought not to - entertain jurisdiction of the case. 2. The defendants had nothing of which to make discovery in-any manner relating to the case made by the bill, so that equity could not on the ground of discovery entertain jurisdiction. 3. That Mr. John Huger, was directly interested in the event of the suit, and therefore his evidence was inadmissible. 4. That hearsay evidence has been admitted in the case on-points in which it was inadmissible and ought to have been excluded. 5. That hearsay from negroes has been admitted and ought to have been excluded. 6. That on the facts legally proved, and the law applicable to those facts,, the decree ought to have been for the defendants. KING, Defendants Solicitor. Complainants insist that' as the decree is opened by the appeal,-the defendants should account for the negroes that died since the’ commencement of this action. And that the estate of Wilson Glover, should be charged with the cattle, as it appeared on the evidence that he disposed of them- - — and that they were not the separate estate of Mrs. Glover. JPETJGRU & LESESNE.
12 S.C. Eq. 64Dungan v. Tobin (1837)
Heard before Chancellor D. Johnson, Barnwell, January Term, 1837. ‘ This bill was preferred to obtain the instructions of the court’ upon certain matters in controversy between the defendants, arid which arose out of the will of the complainant’s testator'. In the solution of them, it will be necessary to have recourse to the general as well as the particular provisions of the will. For the pujv pose of more convenient reference, I have numbered the clauses in the margin, corresponding with the numbers in the orginal will, a copy of which will he directed to he filed with this decree, 1st. The first clause contains the usual direction, that the testa® tor’s just debts should be paid. ■2d. 1 he second is in these words ; “ If my executors shall find it judicious and proper, 1 would prefer that my estate be iiept to», gether and conducted as in rri) life time, until January, 1838, or if they prefer it, that the negroes he iiired out, the perishable property Sold,” &c. 3d. ‘ From the net annual incon e of my estate, I desire that $400, if so much be necessary, be applied yearly and every year, for the support and education oí tuy natural son Cornelius Tobin concluding with a solemn request to his executors to bestow every care and attention to his education both academical and colic» giate. 4>h. In the fourth clause he gives to Orsatnond D. Allen, in trust for flu; sole and separate Use of Elizabeth Nelson, the mother of his natural son, the sum of $140 annually, to he paid out of the net annual income ot his estate until the year 1838, and if she should then he alive, he directs that a sum sufficient to produce that amount annually, should be set apart out of the proceeds of the sale ot his esta.e, at.d invested in public or private securities, to pay the said annuity. On her death the fund to go over to certain re» lations in Ireland. 5th. “ from the net annual income of my estate, I further give and bequeath the sum of $1000, to be paid as soon as possible, on account of bet advanced age, to my aunt Mary Dwyer, of Kil-kenny, Ireland.” In the event of her being dead, he directs this legaet to be paid to her children or grand children, as the case might he, in 1838. 6th. “ The balance' of the net annual income of my estate, (if any,) l give and devise to my sister Mary, my half brother Michael, and my half sister Caty, to be divided between them or their children”. 7th. The questions raised turn principally on the seventh clause of the will, which is in the following words, “ Although I have ex. pressed a wish that my real and personal estate be kept together until 1838, it is not my intention ibat such v>ish be imptrative on my executors ; leaving it to their discretion to sell the whole sooner, if they think it most advantageous, on a long credit, the payment secured as 1 shall presently direct. If not sold sooner, I direct that my whole estate, real and personal, be sold in the month of January, 1838, on a credit payable in instalments of at least one, two and throe years, the purchase money to be secured by bond, mort. gage,” &c 8th. In the eighth clause, the testator disposes of the proceeds of the sales and the residue of the estate; giviegto his legiiima'e sons Daniel and John, each one fourth part, one other fourth part to be invested in negroes, or public or private securities, for the use of bis natural son, Cornelius, for life, remainder over and the remata-jng fourth part be equally divided between bis sister Mary, his half-sister,Caty, and his half brother Michael, all of Irelund, and if they be dead, to their children. 0th. In the ninth and last clause, he gives as a reason for his. providing for his relations in Ireland, instead of giving this portion to his legitimate sons, that he had some time before divided his estate equally between them and himself, and appoints executors* of whom the complainant alone has qualified. In a codicil the testator recites the death of Elizabeth Nelson9. and in consequence thereof, gives one thousand dollars to his sister .Mary, and to his half sister Caty, and half brother Michael, each-the sum of $500, “ to be paid them severally at the time of th© sale or division of my estate, as in my will directed,” i&c. The testator died in October, 1830, leaving an estate consisting-principally of lands, negroes and live stock, and early in 1831, the Complainant sold all the perishable estate except the negroes, and such else as was necessary, to carry on the business of planting,, as the testator did in his life time, and made a crop on the plantation that year ; but finding that comparatively unproductive, and upon a consultation with the legatees resident here, and with judicious planters who were acquainted with the estate, and all concurring that, it was the best and most judicious course, he sold th© whole residue of the estate, real' and personal. The whole estate?, ascertained by the sale, amounted to $40,000, or upwards- The defendant, Darling Peeples, claims the legacy to John To-bin, under an assignment from him ; and the defendant, Thomas-Cormick. claims the legacies to the testator’s sister Mary, his half sister Caty, and his half brother Michael, under assignment frona them, and their legal representatives. The deféodant, Thomas Cormick, insists that under the- correct construction of the will, the net proceeds of the sales and residue-of the e-tate, are not distributable until January, 1838, and that after deducting (he annual legacy of $400, for the support and education of (be testator’s natural son Cornelius, out of the income, h© is entitled to the interest of the fund of the estate, up to that time, under the bequ -st of “the balance of the net annual income of my estate, if any,” to the testator’s sister Mary, &c. contained in the sixth clause of the will. The other parties interested in th© estate, insist that its distribution must have relation to the sale by by the executor, in 183’J, and consequently,, that defendant Cor-roi'-k. is only entitled to a portion of the accruing interest corresponding with the interest which he takes.in the corpus of the estate. On this question aloue, the complainant asks the advice arid direction of' the court. The question then is, when, under the circumstances which have-occurred, did the testator intend that the residuum of the estate, should be distributed 1 Lf not, until January, 1838, then of course the position taken by defendant Cormick must prevail — if upon th©-sale by the executors, then it necessarily fails, and the estate must be distributed as contended for by the other defendants. Ah the particular rules laid down for the interpretation.of will® save mere instruments, by which to ascertain the true intent, which, ¡according to the uaiversal rule, and from which there is no exeep. lion, must always prevail — particular rules can, therefore, never apply where the intention is manifest. We must, therefore, look into this will, tor the purpose of ascertaining the intent of the testator, as to the time it was his will the residuum of his estate should he divided, and enquire before we resort to particular rules, whether there is reason to doubt about his intention. The direct instructions on this subject will be found in the second and seventh clauses of the will ; which when placed in juxtaposition, and read together, will be found to contain instructions to the following import, viz . “ It is my desire that my estate be kept together, and conducted as in my life time, until January, 1839 ; but if my execütors prefer it, my negroes may be hired out, and my perishable property sold. This wish, however, is not to be regarded as imperative, and if my executors sh ill think it more advantageous, and that the leading purposes of my will, will be pr mated by it, then they are authorized to sell (he whole at any time. if not sold before, they must sell in January, 1838.” Now if the intention depended alone on the proper construction of these two clauses, there could be no question. The terms, thus rendered, are too plain and unequivocal to admit of any doubt, that the residuum was dis? tributable whenever the estate was sold. Whether the sale wa# made uuder the discretion vested in the executors, or the time appointed by the will, there would be no motives for tha executors re-Earning it longer. But it is insisted, that this conclusion is opposed by the third clause of the will, which sets apart ©400 of the annual income of the estate, for the support and education of the testator’s natural son Cornelius; by the appropriation in the fourth clause, of y 140 annually out of the income, as an annuity tor Elizabeth Nelson ; by the legacy of ©1,000, to Mary 'Dwyer, out of the same fund provided for in the fifth clause ; andTastly by the bequest of tha net balance of this fund, the annual i ib une, to the testator’s sister Mary, hts half sister Cúty, and his half brother Michael: all of which, it is contended, evidently point to January, 18?8, as the tima for tie distribution of the estate. Now that the intention of the testator shall be collected front the whole will, is a rule as universal, as that the intention when as. certatned, shall prevail. It is equally certain, that it is the duty of the court, to construe a will, so as to give effect, if practicable, to every word, sentence and cla'use. But if there be an obvious general intent, which is opposed by a particular provision, so directly, that they cannot be reconciled, the latter will control the former. This last rule proceeds on the plain principle, that every one has the right to put his own interpretation on the language which he uses. Thus, if one possessed of estates in land, whereof he holds one part in fee, and another part by a different tenure, devise all his real estate to A, and adds, “ whereby I intend the lands whereof f am possessed, in fee,” this specification necessarily controls the .general expression, as it indicates the true intent, According to this principle, if any of the dispositions, of this will, renders it necessary that the executor should retain the funds in his hands, after the sale by him, until January, 1838, the estate should not be distributed until theu. Will an earlier distribution defeat the appropriation of $400, for the support and education of Cornelius, and the annuity of $140, for Nelson, who appear to have been the peculiar objects of the testator’s bounty ? Clearly not. Cornelius’ portion of the estate, which may be sec down in round numbers at $10,000, invested in any of the modes presented in the will, might be reasonably supposed to produce an anoual income greater than the sum of $400, appropriated tó his support and education ; and the direction that a sum uufficient to produce an annual income of $140, should be invested to pay the annuity for Nelson, renders it indifferent whether the fund remains in the hands of the executors, or a part of it is. thus invested. It is not necessary, therefore, that the funds should remain in the hands of the executors, for either of those purposes. Whether, if the income had failed, Mary Dwyer would have been entitled to be paid the legacy of $1000 out of the corpus of' the estate, would be a question not free from difficulty. The income is, unquestionably, the fund primarily chargeable with the, payment, but ihe court in all doubtful cases incline to that construe-, tion, which renders legacies general, i t.sfead of specific. In the case of Cogdell vs. Cogdell, 3 E’y. Rep. a legacy out of a particular fund was held to be a charge u.pon the estate generally. But the question lias not been raised here ; not by Cormick, because she would bo eniitled in prefeience to him, on the same principle on which he claims the residue of the accruing interest. Her claim is concurred in by all the other parties, Ii is not my purpose, therefore, to express any opinion on it. The object of referring to it, is, to aid in the construction of the other provisions of the will. That the testator intended that this legacy should be paid in any event, is, I think, fairly inferable from the reasons on which the testator founds it, the advanced age of the legatee, and the instructions that it should he paid as soon as possible. If it be conceded, that the executor was bound to retain the estate until that sum should be raised from the income, that object being attained, for what purpose should he retain it longer? Can it be, that the surplus should accumulate for the benefit of his sister Mary, for his half sister Caty, aud his half brother Michael ? I think not. Tho will contains no specific directions to that effect. The bequest of the bul mice of the net annual income, in the sixth clause, is, in its terms general. Its generality is extended by the qualification, “ if any” — manifesting a secondary intent, and rendering this bequest subordinate to the other dispositions of the will. So that, whether Mary Dwyer is paid her legacy out of the income, or the corpus of the estate, all the purposes of keeping it together are attained, and the estate must be distributed. A general view of the dispositions of this will lead irresistibly to the same conclusion. The testator owned an estate consisting of lands, negroes, <fcc. which he had employed in planting. In the second clause of his will he expresses a desire that it should bo kept together and employed as in his life time, or, if his executors prefer, that the negroes should be hired until 1838, and the rest of his perishable property sold. In the 3d, 4th, 5th, and 6th, he disposes of tiie whole annual income, necessarily, with reference to the state of things contemplated by the second clause, (his estate kept together, and employed in planting, or his negroes hired out, and his other perishable property sold,) for as yet ho had not provided for any other disposition of it. In framing the seventh clause, it is apparent, as remarked by the counsel, that the testator went back and reviewed what he had done, and he might well have reasoned, and probably did, that the income from planting or hiring of negroes was uncertain, that a strict adherence to the instructions Contained m the second clause, might defeat the leadi ¡g purposes of his will.; circumstance^ might occur, which could not then be anticipated, wluch might re luce the income within the amount nharged upon it. It was fit, therefore, that the executors should be clothed with discretionary powers, ample enough to meet any contingencies that might arise. This confidence might be the more safely con. fided in them, because by no possibility could it work any prejudice to his legitimate or illegitimate sons, nor to his brothers and sisters in Ireland ; for the corpus of the estate was directed to bo divided amongst thorn. It could work no change in their relativo lights, except as to the residue of the annual income, which has already been shown to be secondary to the other dispositions of the will. If the legacy of @1,000 to his aunt be regarded as general,, that would be paid out of the corpus of the estate. If chargeable on the income only, it would only be necessary to retain the estate until that amount be raised from the income, and, in that case, it would be the interest of those entitled to the corpus to pay that legacy and assume the management of their own funds. It would be safe, therefore, to clothe the executors with discretionary powers, to sell whenever they shall see fit, and distribute the corpus of the estate as directed. That the executors were clothed with discretionary power to sell the estate when they should deem it advantageous, and that t.ho sale made in 1833, was well authorized under this power, has not been called in question. It follows, that the estate was then divisible. The disposition of the income was evidently predicated on, ¡and had, reference to the income to bo derived from planting, and, if the executors exercised the discretion in good faith, a fact not questionéd, and this source was thus cut off, and the legacies payable out of .it wholly defeated, still it would hold good, not as the act of the executor, but as the will of the testator operating through, ■the agency of the discretion of the executor. There.is another .circumstance which ought not to be overlooked. From every thing that appears on the wilt, it was the intention of the testator to distribute the bulk of his estate into four equal parts, .beuveeu his two legitimate .sons, his illegitmate son, and the bulk of his relations in Ireland, as a class. There is certainly nothing which indicates that this class were the dearest objects of his bounty But if the construction they contend for should prevail, they will take not only a share of the corpus of the estate, equal to the whole interest of the other legatees, who were intended to be put on a footing at least of equality with them, but the interest of the whole capital of the estate, deducting the annuities charged upon it from 1832, to 1838, whicn assuming the estate to be worth $40,000, would amount lo $ i 6,800, and deducing therefrom $400 a year for Cornelius, and $140 for Nelson, would leave a net balance of $13,600, of the interest in favor of the Irish relations, and exceeding thus much the other legacies ; whereas ir is obvious, whether we look, to the will, or the relation in which the parties stood, equality at least was intended. The court would never lean in favor of such a construction. The complainant is, therefore, advised and instructed, and it is ■hereby decreed, that in the payment of the legacies under this will, he should apportion the funds of the estate on the principles'of this decree, having regard to the time of the sale of the osiaí© made by him in 1832, as the time at which the interest of the defendants were fixed and determined. Costs to be paid out of the funds of the estate. DAVID JOHNSON. Grounds of Appeal. 1. That the discretion vested in the executors, as to the time of Sale, cannot affect the interests of the legatees under the will. 2. That it is not to be supposed, that the testator meant, that the-rights of the legatees should be dependant on the will of the executors, unless elearly so expressed. 3. That the meaning of the testator, upon critical examination of his language, is, that the income of his estate, ’till 1838, shall be distributed in the same way, whether the estate be, or be not sold. T. W. GLOVER, for Appellant.
12 S.C. Eq. 76Lester v. Frazer (1837)
Heard before Chancellor Desaussure, Georgetown, February-Term, 1836. The bill and answer state the case. The first question which arises under it is, whether the real estate of the late Mrs. Frazer, the wife of the Rev. Hugh Frazer, included in her marriage settlement, made when she was a minor, passed and goes under that instrument, and according to its provisio.is ; or descended to her son the late B P. Frazer, her only child, and was subject to his debts. It appears that she died when still a minor, and her son died in 1829, leaving alive two children. The doctrine on which this case depends has been much discussed, and a good deal of difference of opinion has prevailed in the courts. In Drury and Drury, 2d Eden, 39 — -after seven days argument of the ablest counsel in England, it was decided in 1761, by the lord Chancellor North ingtoo, among other things, that the statute Hen. 8th, extends to adult women only, and that notwithstanding a jointure on an in* fant, she may waive the jointure, and elect to take her dower — also that a woman being an infant, cannot by any contract previous to her marriage bar herself of a distributive share of her husband’s personalty in case of his dying intestate. The lord chancellor in his elaborate argument, stated (page 59) the question to be, whether sitting m Court of Equity he could bind an infant to a specific performance of an agreement, aud bar her from claiming her dower at law, aud her share ot the personal estate ; and he came to the conclusion, that he could not; tór he could not be satisfied that the statute enabled infant girls to agree to settlements to bind themselves, and to bar them of their legal provisions — dower. On an appeal to the House of Lords, it was directed, after argument by very able counsel, that the opinion of the judges should be taken on the following question, whether a woman married under the age of twenty-one years, having before such marriage a jointure made to her in bar of dower, is thereby bound, and barred of dower, within the statute, 27 Hen. 8, ch. 10 ? (which statute is of force in this State.) .There were seven judges present who delivered their opinions seriatim — of these, three were of opinion that she would not be bound, and barred, which was in affirmance of the lord chancellor’s decree. Four of the judges were of opinion that she would be barred, which was against the decree. Lord Hardwicke, sitting in his capacity of a member of the House of Lords, (having long resigned his office as chancellor,) concurred fully with the majority of the jud ies, in the opioi in that an infant, having a proper jointure made, is bound, and barred by it. Lord Mansfield, sitting as a member of the House of Lords, and of the court, concurred in this opinion, and the decree was reversed. Mr. Eden, the reporter and gra sdson of Lord Norlhington, in a valuable note at the end of the case, page 75, states that great doubts were after-wards entertained of the propriety of the decision of the House of Lords ; and that Lord Thurlow, is said to have expressed himself strongly in favor of Lord Northington’s opinion. But this did not extend to the real estate of the infant — sec 18 Ves. 275. Mr. Eden then goes on to state, that the result of subsequent authorities is, that an infant cannot he hound hy any article entered into during her minority, as to her own real estate ; which nothing but her own act, after the period of majority, can tetter, or affect. But that she may be barred of her own right of dower by a competent and certain provision by way of a jointure ; and her interest in mouey may be bound by agreement on marriage, which is for her benefit— and Mr. Eden cites the decided cases on which these conclusions are founded. Mr. Atherly, in his treatise on Marriage Settlements, page 28 — 9, was of opinion that the weight of authorities, was, that a female infant has a right to bind her real estate by marriage settlement. But Chancellor Kent, 2d vol. Com. page 244, consi* ders the doctrine settled by Lord Eldon’s decisions in Milnor and Harwood, 18 Ves. 259, and on examining that case, he says, (page 275,) that even Lord Thurlow was of opinion that a female infant could not be barred of her own real estate. 1 Bro. c. c. 106, 115. By this statement it appears then tobe settled by the English authorities, that though an infant may be barred of her dower in her husband’s land by a proper jointure, and of her interest in her personal estate by an agreement on marriage, she cannot he hound as to her own real estate. Consequently, the settlement of the real estate of Miss Porter by her marriage settlement did not bind her, and she dying whilst an infant, never was bound. Yet, though I take this to be the settled law, I may be permitted to add, that by the practice of this State it has been usual to include the real estate ©t infants in marriage settlements, l m not aware that these have ever been questioned, or their binding efficacy op the female infant, ever decided on. It may be worth considering whether it would be proper to disturb that practice, or bring its validity into question ; until, however, a decision be made by the highest authority, I feel bound to adhere to the doctrine as settled by the decided cases. I must, therefore, consider the l'eal estate of the late Mrs. Fra-zer, (wife of Rev. Hugh Frazer,) as not bound by the marriage settlement made in her minority ; she having died a minor, and consequently the same never having been legally confirmed by her. Hex-real estate, therefore, descended on her death according to law, one third to her husband and two thirds to her infant sou, B. P. Frazer. Having come to the conclusion that the real estate of Mrs. Frazer descended at her death according to law, by which her son became entitled to two thirds thereof, on his death, his share descended to his children, subject however to his debts. It is to subject the lands descended to B P. Fnzer, deceased, to the payment of his debts, that this bill is filed, and his infant children made parties to the amended bill The demand of the complainant is founded on a note of hand, alleged to have been signed by the said B. P. Frazer in his lite timo, and made payable to the late B. Lester, whose administratrix seeks payment, thereof from the estate of the said B. P. Frazer. The Rev. Hugh Frazer, who administered on the estate of his son B. P. Frazer, and who is entitled to one third of the estate of his late wife, in his answer to complainant’s bill, admits that he has possessed himself, as admi ¡istrator, of the personal estate of his late son, which, however, was inconsiderable, and that he is also possessed of the real estate of his late wife, called Clegg’s Point, to which, by the present judgment of the court, his son was entitled to two third pai'ts. With respect to the personal estate, Mr. Frazer, the defendant, admits that he is accountable for the same to the creditors of his son Benjamin, but that he has paid debts having legal priorities, to a much larger amount than the actual value of said personal estate, and that xvith regard to the real estate called Clegg’s Point, the same was levied on, and sold by the sheriff of Georgetown district, some years ago, to wit, in the year W24, and during the life time of his son Benjamin, under judgments and executions against the said Benjamin, and that he became the purchaser thereof, at and for the sum of three thousand dollars, and has ever siuce held the said land, having paid the said sum, which has gone m part satisfaction of the numerous ere-ditors of the said B. P. Frazer; many of whom had liens long before the claim of the complainant by a note in i.830, was even in existence. Wherefore, evenif the demand of the complainant had been established, which is denied, there remain no funds in the hands of defendant., out of which such demand could be satisfied. Upon these, allegations in tne answer, it would be in the course of the court, that a reference should be had before the commissioner, who, (after the complainant had established his demand,) should examine the accounts of the administrator and report thereon. But another question has been raised by the bill and answer, which requires to be discussed and decided. It is alleged by the bill, that certain creditors of the said B. P. Frazer, having recovered judgments against him. levied upon a plantation on Wuccemaw, commonly called Clegg’s Point, as the property of the said Bei.j inm., and at the sale thereof, by the sheriff of Georgetown disu-ict, divers of the creditors, of the said Benjamin, were present, and ready and willing to bid for the said plantation, as much money as would have amply paid all the judgments against the said Benjamin P. Frazer, and left the personal estate free, to be applied to the payment of the other debts of the said Be-jamm; at which time and place the said Hugh Frazer, undertook aud promised to the said creditors, that if they would permit him to bid off the said plantation, for a sum much less than the actual value, which they would have otlierw ise bid, that he the said Hugo Frazer, as agent aud trustee of the creditors, would sell the said plantation for 11s full ai-d actual value, and apply' the proceeds to the pay mem of tneir debts ; hut that the said Hugh Frazer, has received the rents and proliis of the said plantation, and has not resold the same, or applied me proceeds of the plantation to extiugusn ihe said judgments, a. d oilier creditors, and apply the remainder oi the an-sets in his hands to pay the debt due to the deceased B, Lesier — and the bill prayed relief thereon. The amended bill set loi-.h more lulty the grounds of the claim, and of the complaint again si ihe said Hugh Frazer, and required a full answer to its allegations us to the estate which his son, the said Benjamin P. vt as emitted, and insisted upon a discovery thereof, aud the application ot the same to pay the debts of the creditors ; more especially as he the said i ugh, liad purchased in the lands at a very low rate and without competition, avowedly on the ground that he would pay the creditois of his said son, the full value ot the said lands. The answer of the Rev. Hugh Frazer, as administrator of B. P. Fra-zer, admitted mat the personal estate came into his hands to a small amount, which had been applied t.< pay debts, or to be accounted for. That with respect to the real estate, which had originally belonged to his wife, the late Mrs. Frazer, even admit, ting that it descended to his son, B. P. Frazer, (which was questionable under the marriage setileme.it,} he. the defendant, had become the bona fide purenaser thereof, and that with respect to the alleged promises to the creditors; aud the breach thereof, and fraud practiced on them, the said Hugh Frazer, denied the same, and insisted, that so far from the said allegations being true, he did not know that any person intended or wisiied to make a bid for the lands, and he deterred no person from being a purchaser. That he may have said at the sah , as he has often said since, that he would be glad to make an advantageous sale of Clegg’s Point, in order that he might be euabh d to pay his sou’s debts, but ihat this was uniformly a voluntary declaration, and that he believes the sum of three thousand dollars, (at which the place purchased, was knocked off to him,) was just that annum more than the i iterest of his son therein. 'Ihe defendant further answeri g, stated, that though he was under no obligation to the creditors- of his deceased son,, he has constantly made efforts to make sale of the plantation at Clegg’s Point, always intending to appropriate the proceeds thereof, to the payment of his son’s debts, and although he has not been able to do so, he has since the sale of the sheriff, and in anticipation of the sale of the premises which he hoped to make, paid and advanced to the 'creditors of his said son, fifteen thousand dollars in addition to the three thousand dollars, paid to the sheriff, selecting such as he deemed to be just. The allegations and the answer, involve a serious question — it is no less than a charge of misrepresentation, and an attempt to bold to bis own use, at a very low price, a valuable estate, which is worth a very large' sum of money, sufficient to pay the debts of his son ; and which might have brought its full value if the creditors had not been lulled tuto a false confidence, by the assurances of the defendant, that he would, if allowed to purchase the land without competition at a low rate, make a resale at the full value, for the benefit of the creditors. The answer positively denies the allegations, especially as they relate to the tract called Clegg’s Poi-t. fbe answer of a defendant, especially when made by a man of high character, as in the present case, is entitled to great weight, and cannot be set aside, but by great and preponderating evidence. To' rebut the answer, the complainant produced at the hearing of the cause, a letter from the defendant to the sheriff, Mr. Huggins dated 6th July, 1.824, afier lie had made the purchase of the land at three thousand dollars, in which he states that he had been informed (by a letter,) that the sheriff was directed to advertise and re sell the Waceamaw lands, which orders he attributed to some misunderstanding among the parlies, not knowing that his sole view in purchasing the land, was to dispose of the same at some future day, at their intrinsic value, which would more than pay all de. mands against his son Benjamin ; he adds that he had had a conversation with the attorneys and others, who were all willing to wait (or payment. That the same form was gone through, for the only bid was made by a iriend of his for three thousand dollars, which he promises to pay speedily. At the hearing of the case, Mr, Shaw was examined for the complainant, and testified that he was present at the sale of one of the plantations oí the lands of B. P. Frazer, in the summer, (warm weather;) could not say which of the tracts of land, he was himself a judgment creditor of B. P- Frazer. He had various conversations with Mr. Hugh Fra-zer, on the subjectMr. Hugh Frazer said, his object in becoming the purchaser of his son’s property, was to bid it off for the benefit of the creditors of his son, and not with any view to benefit him. self, and he wished the creditors not to interfere with hi« bidding.The witness told Mr. H. Frazer, that any bid would pay his demand, as he was among the earliest ol the creditors, and, therefore, had no interest in entering into any arrangements, and his means being smalt, he could not bear delays ; Mr. Frazer said there wore persons who induced his son to make improper purchases, a. d if he had the control of his property, it would enable him to prevent such improper dealings, The witness attended the sale on the Same day ; Mr. Marvin was the only person who opposed Mñ Hugh Frazer, in bidding — at each bidding, Mr. H. Frazer told Mr. Marvin he stood in his own light, for that he (Mr. Frazer,-) was bidding for his benefit, and that of the other creditors of hig son. This was repeated several times. Being cross-examined, Mr. Shaw testified, that he was inclined to think this was at the sale of the Black River lands, which are distinct from Clegg’S Point. He does not remember if Mr. Coggeshali was present, a* Marvin’s adviser. On being re-examined, Mr. Shaw testified, that he did not remember whether the land-was knocked off to Mr. Fra-zer ; the genera] impression was, that the land did not sell for half its value. Witness considered Mr. Frazer’s declarations as genera], and as applying to all his son’s property, and not to any parti, eular land ; and from Mr. Frazer’s -declarations, believed he was acting for the benefit of the creditors,- and that his purchasing his son’s property made it unnecessary for the creditors to bid or interfere ; don’t remember whether Clegg’s Point was knocked off to Mr. Frazer, (the answer admitted.it.) The complainant’s counsel produced the marriage settlement of Rev. Hugh Frazer, and Miss Porter, March, 1706. She was then under age ; her son, B. P. Frazer, was born in 1787 ; the mothest died under age ; B. P. Frazer died in 1829', leaving two children. The execution states a levy on plantation, without specifying ; date May 15th, 1824. It would be a difficult thing to decide on this point of the case. The answer of the defendant, a respectable' clergyman, is certainly at variance with the letter of 6th July, 1824, (above cited,) and with the evidence of Mr. Shaw, a respecJ table witness. Both the witnesses are entitled to' creditbut there must be a failure of recollection On one side or the other, which iá not to he wondered at, after a lapse of eleven or twelve years 5 yet the letter of Mr. Frazer seems to corroborate the recollections of Mr. Shaw. Under these circumstances, it would be a most painful duty to decide this case on that ground, and, as I think, it may be properly decided on another, I willingly avoid doing so-Mr: Frazer states,- ihat though he does not feel himself legally bound to make a resale of the lands, and especially of Clegg’s. Point, yet he was willing, and had offered, from a sense of justice to his son’s creditors, to sell the lands at their full value, if that could be obtained, and to apply the proceeds to the payment of the just debts of his son ; and that in anticipation of such sales he had actually paid just debts of his son’s, to the amount of $15,000, over and above the $8000, at which he had bid off the land. Now,' if this be correctly stated, as wé have reason to believe, then there is no ground to insist on the sale of the land ; for the defendant has' done, by anticipation, out of his own funds, all that could be required of him, if the case had been most fully proved against him ; for it is not contended that the lands and the personal property together, exceed $18,000 in value. It is, therefore, ordered and decreed, that it be referred to the commissioner to receive proofs of the amounts paid by the Rev. Hugh Frazer, on his son’s debts ; and ef the value of the seal and personal estate of the said B, P. zer, which came into the hands of Mr. Hugh Frazer, and to report thereon ; and also to report, if any, and what amount is due to the' complainant. HENRY.W. DESAUSSURE, Grounds of Appeal. 1. Because his honor decided, “that the real estate of Mrs. Fra-' zer was not bound by the marriage settlement, made in her minority, she having died a minor, and consequently, the same never having been legally confirmed by her ; and that her real estate^therefore, descended on her death, according to law, one third to her husband, and two thirds to her son whereas, it is most respect* fully submitted, that the settlement was valid, and did not require-confirmation ; or, in any event, the covenant of Mrs. Frazer,-could only be avoided by herseli, or her legal representatives ; and" the settlement should be sustained in favor of the infant defendants,who were purchasers under it. 2. Because if the settlement were void, and two thirds of the Clegg’s Point plantation vested in Benjamin P. Frazer, deceased,the allegation as to the- contract, made at the sheriff’s sale, was positively denied by the defendant’s answer, which, it is most respectfully submitted, is perfectly reconcilable with the evidence adduced at the trial, aud, therefore, no reference was necessary as to-the payments made by the defendant. 3 Because the defendant’s answer having denied any assets of his intestate, and no proof to the contrary offered, the bill should' have been dismissed. 4.' Because the decree was made without any evidence of a debt due to the complainant, or assets in the hands of the defendant. DUNKIN, Defendant's Solicitori
12 S.C. Eq. 88Pedrieau v. Hunt (1837)
Heard before Chancellor Desaussuiie, Charleston, May Term', 1835. From the evidence adduced in this case, it appears that on the' 16th April, 1827, Benjamin F.'Hunt, one of the defendants,became the purchaser of Clegg’s Point, for the sum of $8010. He subsequently paid to the commissioner the sum of $776, and no further’ payment has been made. In a former cause, pending between th¿ present complainants and the administrators of George and SavaalP Smith, it was reported by the commissioner, that, on 13t.h April, 1882, the sum of $3594 87-lQ0ths, was due to the complainants, Samuel Pedrieau and wife, on account of their claim on Clegg’s Point, or the proceeds thereof. The report was confirmed by the' presiding chancellor, and his decree was sustained by the Court of Appeals. The object of the bill filed in this case, is to obtain payment of the amount due to the complainants, under a decree of this court. The defendant, B. F. Hunt,, in his own right, and as ¡Solicitor, represents all the persons interested, except the complainants. It is, therefore, ordered and decreed', that the defendant, B’. F.' Hunt, pay to-the complainants, Samuel Pedrieau and wife, the sum of $3594 87, with interest thereon, from the 13th April, 1832, on or before the 1st day of March, 1836. It is further ordered, that in default of such payment, the defendant’s equity of redemption be foreclosed, and' that the commissioner of Georgetown district;' proceed to sell the premises called Clegg’s Point, after the usual notice, for cash, and that from the net proceeds, after paying the costs of these proceedings, and of Samuel Pedrieau and wife, in the former proceedings, that he pay to the complainants the amount above decreed, together with the interest thereon, and that he hol’d' the balance subject to the'further'order of the court. HENRY W. DESAUSSURE^ From which, the defendants, B. F. Hunt, and the administrators of George and Savage Smith, appeal upon the grounds : 1. Because there is no such privity between the complainantá and the defendant, B. F.- Hunt, as to sustain proceedings against him. The rights of complainants, in relation to payments made to the trustees of Butler, and the administrators of Smith, are to be adjusted between them,, and the defendant, B. F. Hunt, stands in no other relation than a purchaser and mortgager, and no decree' can be made against him, unless at the suit of the party entitled as assignee of his bond, and then only a simple decree of fbreclosure ; because complainant can only claim the residue of two-fifteenths of the sale in 1827, after deducting the cash payment, and defend-ant, B. F. Hunt, is only chargeable with the bond in the same man. »er as- if the- decree for gale &ad been complied with, and a bo»$ for two-fifteenths of the purchase money, had been delivered to complainant, and the cash credited; because, as to any claimsi against the administrators of Smith, the complainants are not ea« titled to recover, because the several sums paid to said administrators, still leave the debt of Micheau to them, unpaid, in a sum greater than the whole amount of sales ; and the several orders and decrees directing them to reftmd one sixth of the amount paid to trustees of Butler; as well as the sums paid in extinguishment of their own debt, are void ; not having been confirmed by any tribunal having competent authority, under the constitution, to decide on the rights of the citizen, and being in open violation of the decrees-formerly made. Because the statement, accompanying the reports, are erroneous, and are clerical errors, not being truly copied from the decrees which they purport to copy — m this — That the several decrees of the Circuit and Appeal Court award to S. Pedrieau and wife, but two filteenths of the sales of the plantation, and the commissioner has, in his calculations, given them credit for one sixth, or two-twelfths. 2. Because the court ought, upon the facts being established, before a final distribution of the fund, that the mortgager was seized in fee simple of the premises, to refuse its aid to complaiuants who' are volunteers, to suable them to claim a fund justly belonging to the creditors of Micheau, and the court ought to have sustained the defence, that the facts set forth in the answer, prove that Paul Micheau, either by the conveyance from Cogdell, or those from fais sons, acquired an absolute title- 3. Because the administrators of George and Savage Smith aré entitled to be paid,- out of the fund, the expenses of defending the suit of Josiah Smith’s executor. 4. Because the complainants claim interest, twice compounded,' and that too on part of the cash remaining in the hands of the commissioner. 5. Because the court ought to have given the defendants an opportunity of trying the bill of supplement, by way of eross bill, and to iiave thus tried the important issue, whether Micheau was possessed of a fee simple, as the claimants, Pedrieau and wife, are only volunteers. 6. Because all the orders made on the report relative to the claims of Pedrieau and wife, are in violation of the appeal decree, which awarded but two-fifths of the proceeds of the sales, and until there was a compliance with the sale by the executors, of a conveyance to the purchaser, the creditors of Micheau were' at liberty to receive payment of any portion of their debts, from any one, and all payments from Withers were expressly made in discharge of specified debts. Such payments did no wrong to the owners of the portion of land not subject to th'e mortgage. 7. Because the principles of the appeal ¡¡ecree of 1332, excludes fróm the calculation, the amount received by Butler, and gave but, two.fifths of the sum received by George and Savage Smith»
12 S.C. Eq. 97Brown v. Lindsay (1837)
Heard before Chancellor D. Johnson, Charleston, May Term,' 1836. The material facts of this case are as follows : John Atchison and his wife, being, each, seized in fee, in equal undivided shares of the livery stable and lots, in Church and Chal-mers streets, Charleston ; Atchison, in May, 1830, leased the whole of the premises to Edward Francis, lor five years, at two thousand' dollars a year.
12 S.C. Eq. 102Cruger v. Daniel (1837)
Heard before Chancellor J. Johnston, Charleston, on the 21st, 22d, 23d and 24th days of January, 1835. David Murray, of Savannah, was possessed of a plantation on Savannah River, in Saint Peter’s parish, in South Carolina, called Nelvilie, which, by a deed, dated 10th February, 1770, he conveyed to his brother, i ffiarles Murray, for 2000 years, as a mortgage, to secure a bond, conditioned for the payment of £1000, sterling, at the Royal Exchange in Ltndon, on the 1st day of February, 1771, with interest at five per cent., subject to a prior mortgage of the same date to John Murray. The deed is regularly recorded in the Register’s office in Charleston, 10th May, 1770 David Murray, by his will, dated 17th February, 1770, devised Nelvilie to his daughter Charles, and named his wife, Lucia Murray, his brothers John Murray and Charles Murray, and his friends, John Graham, William Telfair, and Edward Telfair, executors. William Telfair proved the will before Sir James Wright, in Geori gia, 3d January, 1,771, and a copy is filed in the Secretary’s office in Charleston, but nothing more. No letters testamentary nor probate, from South Carolina. John Murray and John Graham, were attainted by the confis--cation act of 1778, in Georgia, Wiliiam Telfair adhered to the mother country, and left Georgia, during the war. Charles Murray was abroad during the whole of the revolution. See Wat. Dig. 379. The testator’s daughter Charles,, married Thomas Washington, and by deed, dated 18th September, 1783, recorded in the Register’s office in Charleston, on the 9th October following, Thomas Washington and wife, conveyed Nelville to William Pierce, Anthony Walton White, and Richard Call, in fee simple, in consideration of £0400 Richard Call, the same day,, executed a bond to Washington, in £6400 penalty, and the said bond, after reciting the conveyance from Washington and wife, of the plantation Nelville, proceeds to state, that it had been mortgaged by David Murray to Charles Murray, oí Madeira, for £1000 and that Washington had left and deposited in the hands of Pierce, White, and Call, or one of them, the sum of 1500 guineas, part of the consideration money, and that they, Pierce, White, and Call, had agreed to pay off the mortgage. 'I herefore, ihe condition of the bond is, that they shall, by the 1st of January, then next, take up the said bond of David Murray to Charles Murray, and indemnity Washington, and the estate of Murray against it. Pierce, White, and Call, by deeds of lease and release, dated I5tc a .ri 16¡h >■* eptember, 1783, in consideration of £5144, sold the san e plantation to Leonard Cecil, which deed was duly recorded on 9th October following, in the Register’s office in Charleston. Leonard Cecil, by deeds of lease and release dated 30th and 31st March, and recorded in Charleston, on the 19,h April, 1784. in consideration of £5144, conveyed the same plantation to John Feme ; and Mrs. Harriet Cecil renounced her dower'before commissioners appointed by a dedimus under the seal of the court, and the hand of J. F. Grimke. On the 24th September, 1783, Thomas Washington, by a letter to James Penman, the agent of Mr. Murray, informed him that the bond of John Murray was paid, and that Charles Murray’s bond was to be paid to him by Pierce, White, and Call, to whom he had disposed of the land under that incumbrance. Thomas Washington, writing to Charles Murray, on 7th April, 1788, informed him that he had delivered to Mr. Penman all the papers he had in relation to Nelville. That he had sold, for the express purpose of paying off his mortgage ; and-taken a defeazance, bearing equal date with the conveyance, whereby he had made himself secure, a.td done justice by Mr. Murray. On 'the !5th March, 1787, Edward Penman, who was the altor- . ney of Charles Murray, then residing at Madeira, caused a bill to be filed in the Court of Equity in Charleston, for Challes Murray, and in his name, against Thomas Washington, Charles his wife, and Edward Telfair; andón the 16th April following, the court granted an order for the defendants, residents in Georgia, to answór' in three months. On the 21st December following, the bill was ordered to stand over, and John Ferrie to he made a party. The bill states, that the bond and mortgage were unpaid, and sets forth the several sales before mentioned, and prays a foreclosure. The consideration of the conveyance of Nelville to John Ferrie, was.a debt due by •Pierce, White, and Call, to Ranks and Company, in'which house, Ferrie was a partner ; and, on a settlement, of the partnership, a large sum had been stated, as the profits of the concern, and the debt of Pierce, White, and Call, had been assigned . to Ferrie, as part of his share of profit, and the partnership of Banks and Company dissolved. But the executors of General Greene, who, by guaranteeing certain contracts of Banks and Company, had become a creditor of the concern — filed a bill against Banks and Ferrie for an account of the assets of Banks and Company, and to make Nelville in the hands of Ferrie, liable to the partnership debts. The bill, answers, exhibits, and all the proceed, ings in the case of Greene vs. Ferrie, are lost. In Murray vs. Washington, the bill is preserved, and several papers within it; among the rest, copies of the agreement between Pierce, White, and Call, and Washington,Tor the payment of Ghas. Murray’s mortgage, but no proof of service of process of any kind,nor of publication, nor of the bill being taken pro confesso, nor of defendants having appeared. The docket and the decree book show that the case of Murray vs. Washington, for the foreclosure of the mortgage of Nelville ; and the case of Greene vs. Ferrie, for the sale of Nelville, to-pay the partnership debts of Banks and Company, were brought on together. And on the 24th June, 1788, the following orders were made, viz-: • Murray vs. Washington. “ Decreed, that the land, in bill mentioned, be sold by the master, on a credit of one, two, and three years, moneys for the purchase,- subject to the further order of the court.” Greene vs. Ferrie. “ Decreed, that the plantation Nelville, mentioned in bill, be sold by the master, on a credit of one, two, and three years, with interest, on bonds, with approved security, to re-mam and be subject to the future order of the court, and that the defendant Ferrie, join in the conveyance of the premises. That an account be taken by the master, of the profits on the goods purchased by Banks of Harris and Blacklock, Newcomen and Col-let, Warrington and McWhan. Also, of the balance still due on those purchases, and of what General Greene and his representatives have received towards satisfaction of the guarantee entered into by him, as in bill mentioned.” Greene vs. Ferrie. On the 19th December following, it was-ordered, that the sale of Nelville should be according to the terms of the instalment law. In June, 1789, Mr. Gibbes reported, that he had sold Nelville, on-the 11th February preceding, to Edward Penman and Adam Tun--Bo, for £4146,15 ; andón the 26th day of the samo month, this report was confirmed. 26th June, 1790.. The court proceeded to make a final decree in the two causes, in which after reciting the former orders arid re. ports, and that no account had yet been had of the profits made by Banks and Company, and that it was uncertain it such an account could ever be had — Decreed, “That after applying such part of the securities, as shall be sufficient for that purpose, towards satisfying the mortgage money alleged to be due from David Murray to Charles Murray, and subject to which, the defendant Ferries purchased the said plantation : Also, after payment of the costs of this suit, the master deliver into the hands of the executors of General Greene, the remainder of the securities for which the said plantation was sold ; and that the said Ferric be discharged from any further claim of the complainants, on account of the said speculation. unless it shall appear, from the return of the commissioner, that the goods of the Charleston sacculation, sold for less than prime cost; in which case, the said Feme shall be obliged, and he is hereby decreed, lo pay to the complainants one third part of said deficiency, in conformity with his agreement with John Banks, on 22d October, 1782.” See 1 De S. 174. Penman and Tunno did not complv with the terms of sale. No further pr iceedi; gs appear to have been had in the cases. Jumes Duff, soon afterwards appointed an agent in this country, to prosecute his claims to Nelville, under a title adverse to David Murray Washington was executed in the year 1701. His widow never took possession, nor entered on the land, it does not appear in the evidence, when she died. Charles Murray died in the tear 1809, and his son, Charles Scott Murray, sent a power of attorney to Adam'Tumio. Adam Tunno paid the direct tax ior Nelville, in 1808. And in 1812, he claimed the possession for Charles Scott Murray from General Huger, who owned the ad. joining plantation, and who had thrown up a line bank which encroached on 1-:eiv-llt', and which, on the representations of Mr, Tuuno's agent, he withdrew. The possession of Nelville was vacant, until the year 1823, when James Rose and John Rutledge, took possession, with Mr. Tunno’s consent, who claimed the land for Challes Scoff Murray, but told them the title was disputed. Louisa Omones, the daughter of Mrs. Washington, claimed, and sometimes exercised, such acts of ownership on Nelville, as may he exercised over land in a state of nature. There was no house — . no cultivation — a new growth covered the old fields, and the ditches were filled up. She died in 1822< A man called Mallory, was said to be her husband. He died, and his heirs claimed the land. In 1825, Mr. Rose heard of Mallory’s claim, and wrote to his overseer, to prevent any trespass on the land, as lie held, for the agent of the proprietor in England, and in February, 1826, he took a lease from Tunno and Higham, as the agents of Duff and Murray ; who agreed to join in the lease, and refer thoir titles to the examination of an arbiter. In 1825, Dr. Daniel made a contract with William Mallory, onp of the heirs of Hamlin Mallory, to purchase their right to thif plantation for $3,000. The contract was verbal, and the first evidence of it is the following memorandum : “ Received, Savannah, 13th October, 1825, of W. C. Daniel, $351.68, in part payment, for the purchase of Nelville plantation, as stated in a former receipt of $30. Wna. Mallory. Witnessed by Henry Holland.” He caused a bill to be filed in the name of Mallory, against the oo-heirs of Hamlin Mallory, for a partition, and took possession in the fall of 1826, Mr. Rose indicted him, and his overseer, for a forcible entry, and in November, 1827, they came to the following agreement: “ The State vs, Neil Culbreth and W. C. Daniel. Indictment for forcible entry and detainer. It is agreed on the part of James Rose, prosecuter, and W D. Martin, attorney, for defendants,— First. That the indictment is abandoned. Secondly. That defendants abandon possession of the knoll, of which they now have possession, as also, the seven acres cultiva-ied this year, on the N. E. and such as is comprised by an avenue' and ditch, supposed to be about seventy acres, on or before the 15th January next, with the privilege of removing to another knoll, on or near which, is the corner between Judge Huger, an.; land lately owned by Mr. Cruger, and to take with them all the timber, buildings, &c. Third. That defendants are to retain possession of fourteen acres, lying between the kuoll, on which the settlement now stands, and Judge Huger, which fourteen acres were cultivated this year, by said defendants. Fourth. Neither party are to interfere with the possession or use of the other, in the premises above described, or in such possession, as either may assume, in clearing land on the Nelville tract, until the trial of the action at law, about to be instituted to try the title, and the possession agreed on is to be without prejudice to either party.” In the case of Mallory vs. Mallory, at Coosawhatchie. there was a decree for a sale, but ail the proceedings in that case are lost. At the sale, Mr Tuuno gave notice of hts claim and possession. Dr. Daniel was declared the purchaser, at $1190, and Mr. Joyner made a deed to him. He brought'an action ol trespass, to try title against the tenants, James Rose and John Rutledge. On a comparison of titles, Mr Duff' abandoned his claim. Administration of the estate of Charles Murray, was granted to the complainant, who administered at the request of Mr- Tunno, and filed this bill for fort closure of the mortgage of D. Murray to Charles Murray, attd injunction against proceedings at law. The injunction was granted, but at January term, 1634, dissolved by the consent of complainant. Th bill sets forth the termer proceedings in Murray vs. Washington, and Greene vs Ferrie — Alleges, that the bond and mortgage have been lost, and that there are doubts, whether, under the act of assembly, a mortgagee in possession, can defend an action of trespass to try title — -That defendant purchased, with notice of complainant’s title,- and of the possession of Rose and Rutledge, and prays that the deci’ee in Murray vs, Washington, may be carried into effect — and that the defendant may redeem, or be foreclosed. After exceptions to the answer had been sustained, the further answer was referred on the old exceptions,- but no further order was made. DECREE. Without the assistance of the decrees pronounced in the cases of Murray vs. Telfair, et. al., and Green vs. Feme, it will not bs pretended, but that the plaintiff’s claims on the bond and mortgage, are too stale to admit of their being sustained. The presumption of law is, that the bond has long since been paid, and the mortgage satisfied. If we put these decrees out of view, then the mortgage being executed before the act of 1701, vested a legal title in the plaintiff’s intestate, for the term of two thousand years, subject merely to the equity of redemption. Li then the bond has not been paid, the right of redemption is barred, and the conveyance is not only legal, but indefeasable. If, on the other hand, the bond has been paid, then the plaintiff, so far from having a right to come here for relief, is bound to re-convey what he holds under the mortgage. So that if the bond has not been paid, the plaintiff has a remedy at law to recover possession of Neiville, without any danger of being brought into equity under an opposing- right, to redeem ; that having long since been barred; and if the bond has been paid, the plaintiff has no right to claim the aid of either law or equity. But if we take the decrees, to which 1 have referred, into con. federation, how will they assist the plaintiff? First, they destroy all prit ity,from the time they were pronounced, between the mortgagee, Charles Murray, and the heirs of D.svid Murray, the mortgager, and thereby extinguish th.it privity between the plaintiff and the defendant, which is the main hinge oí plaintiff’s claim here. The sale ordered and made, effectually made the heirs of David, thenceforth, strangers to the laud, and to the mortgager ; leaving no privity between them, whatever, as to the land ; suhsti. tuting in its stead, a mere right on their part, to compel the purchaser to complete his purchase, and to claim whatever balance might be left from the price, after payment of the claims provided for its the decrees. To prove this, suppose they had entered oa Tunno, could he not have ejected them ? Could he have conjured up the semblance of a fiduciary relation between him and them, under which he could have dragged-them into this court? Then from the date of the sale, the title of Charles Murray, coupled with David’s equity of redemption, being the whole title which was vested in the purchaser, and any title which David’s heirs might choose, subsequently to convey, would be as distinct from each other, and the grantees would be as perfectly strangers to each other, as any titles or grantees could be. An action at law would constitute the only test of their relative strength. •This, 1 say, would be the result, even if David’s heirs, or their then alienees, had beet) parties to the decrees referred to ; of which, I am not satisfied. And if they were not parties then the decrees ¡must be struck out of view ; the result of w hich, I have already stated. But it is said Tunno did not take titles, or complete his purchase. What then ? There was a joint and several right in Charles Murray, and all whose claims were provided for in the decrees, as well as in the heirs of David Murray, who had a claim for whatever ba. lance, if any, of the avails should be left, to compel Tunno to take titles, and pay the price ; and if Charles Murray chose to forego bis right, did that give him the right, without consulting the other heirsi to annul the decree, and the sale, discharge the purchaser, and set up a claim for another decree ; a decree, which, while it would give him no more than was giver, by that which he had voluntarily waived, must, in some respects, injure the heirs, since it might not only throw them on a new and more insufficient purchaser for their balance, hut might much diminish, if not destroy', that balance. It is said that Tunno had ground to doubt the title; and, therefore, the plaintiff is not to be injured by his failing to complete his purchase. Be it so, are the heirs to be injured any more than- the plaintiff 1 If the heirs of David, in whom was only the equity to redeem, and not Charles, in whom was the legal title, was bound to clear up Tunuo’s doubts, did Tunno ever inform them that he entertained any doubts, or the grounds of them ? Never. Were they to have him released from his purchase without their consent? To be made responsible at this late day, without a whisper of notice? And that on the ground of doubts, of which tin y were neither apprised, nor afforded an opportunity to clear them up ? Besides, it does not appear, that Tunno had any substantial grounds of apprehension. And if he had, there were ample means to have cleared them up long ago If Charles Murray had the right, which the plaintiff now asserts, to convert him into an agent, instead of a purchaser, of the land, all that he had to do, was to have taken possession, and let Duff put his claim to the test. Instead of this, the whole difficulty was ieft unknown to the heirs; forty years are allowed to roll around, without trying Duff’s claim ; and when at last, it was abandoned as spurious, the heirs are to bo made to bear the loss, arising from the lands being left idle, while the interest on the debt'was steadily accumulating. Where is the justice in this ? Again — Tunno made the purchase. It was reported and confirmed, without any objection, either from him or Charles Murray. Have the heirs of David released him from it ? It gave a fund to Charles to pay his debts. He became quasi Tunno’s. creditor for it, with a right, (at most he could pretend to no more,) to go on the heirs, in case of failure in Tunno to pay. Shall a creditor release a principal, and then go against the surety; and this, not only without the surety’s consent, but without notice of the release 1 I am at a loss to know, for wliat the plaintiff conies here. Is it for a decree to foreclose ? Time and the old decrees have both foreclosed. Is it to have an order to sell ? "That, the old decrees gave, if the plaintiff relies on them ; and if not, theu his debt is presumed, from lapse of time, to be paid. Is it to com gol Tunno to take a title 1 Then sue Tunno. Is it that the plaintiff has not a title from the commissioner, receiving Tunno as having purchased, as agent of Charles Murray? Has.the commissioner refused to make a title ? Has Charles Murray paid the price ? Then go against the commissioner. But why does the plaintiff want ati-tie, if Charles Murray was the purchaser ? Has he not the mortgage, with the equity barred. Besides, this does not come within the scope of the bill.. Without, therefore, going into the evidence, whether those from whom the defendant purchased, are the heirs of David Murray ; or whether or not, he had notice, when he purchased, or before he completed his purchase, l am of opinion there is enough in the case to show that the bill cannot be sustained. It is decreed, that the bill be dismissed. J. JOHNSTON. From this decree, the complainants appeal, and hope the same will he reversed, for the following, among other reasons :— 1. That the court is bound to presume that the proceedings in Murray vs. Washington, were regular, and to give the decree its full force and operation. 2. That the deeds which are offered in evidence, by the com-plaii'nnt, arc the very highest and t>est evidence; and that the secondary evidence is strictly within the rule as the best evidence which the nature of the case admits of; and is in support of original authentic documents and of the decrees of the court; and the whole of it should have been received. 3. That Mr. Murray stands in the situation of a mortgagee, after foreclosure ; and no adverse possession, which vests the constructive possession in him ; and that the acts done by Mr. Tunno, as his agent, amount to an actual entry and possession under his title, « hich is thus fortified, and not weakened by the lapse of time. 4. That by the deed of Washington and wife, to Pierce, White, and Gall, the possession of the wife was divested, and her interest turned into a right, wliicti, in 1791, when Washington died, was barred ; so that the statute of limitations, and lapse of time, so far from running in favor of defendant, are adverse to the title which he derives from the wife of Washington. 5. That the jurisdiction of chancery is always mutual, and if, upon the case made by the pleadings and evidence, the heirs of Charles Washington would have a right to redeem ; the complain* ant, necessarily, has a right to call on them to redeem, or be foreclosed : and, that even, if they had no right to redeem, independent of the offer made by the bill, yet that offer gives thorn the right; and that it is against reason and authority, and a decision without a precedent, that a mortgagee, offering to be redeemed, should have bis bill, dismissed on the ground of the defendant having lost the right of redeeming. '6. That the attempt to make the defendant a bona fide purchaser for valuable consideration, without notice, has utterly failed. That neither the form nor substance of such a plea, has been adhered to in this case : and the very resort to such a defence in the manner attempted here, is convincing proof of the utter weakness and nullity of the defendant’s title ,■ and that he stands merely in the condition of one, who, for a trivial sum, has purchased the chance of a law suit, and employed the forms of a judicial sale, to give a color to a quit-claim, and cause the same to pass for something better than the assignment of a title taken on speculation.
12 S.C. Eq. 113Smith v. Bank of South Carolina (1837)
Heard before Chancellor Desáússíjiie, Charleston, April Term; 1835. The complainant became the purchaser at public salé, of cer« tain slaves sold under á mortgage, which had been assigned to the Bank, and gave a fair and full price for them. The Bank made na representations, as to the condition of the slaves, biit gave a bill of. Sale to the purchaser, without a warranty, and indeed striking out the warranty, which had been inserted in the bill oí sale, before the execution thereof. The complainant alleges that one of the slaves had the fever and ague, at the time of the sale; and continued ill for 6 or 7 months, and then died of díopay. The Bank being about to enforce the mortgage, to compel the payment of that part of the purchase money, which was on credit — the complain» ant asks for an injunction to restrain the Bank, on the ground, that there was an implied warranty of soundiiéss; which had failed. The argument of the complainant is; that there is an imphfed warranty bf soundness, on evéry sale; The doctrine on this point has undergone a great deal of change; Formerly it never was considered that there was auy such implied warranty; in conformity with the English law. When many impositions had been practised in the sale of slaves, and purchasers who gave full prices, were deceived either by the fraud of the sellers concealing defects, or by the healthy appearance of slaves, Who were affected with deep rooted disease, almost necessarily mortal, and even unknown to tho sellers; it* was thought to be sound policy to adopt the rule of the eivil law broadly, to give relief in süch cases, on the ground of implied war-, ranty. The great increase of litigation from the broad adoption of the civil law rule, taught the courts the danger of these changes, and the judges have been more and more inclined to restrict the, relief to cases of wilful and fraudulent concealment by venders, of, deep seated and severe diseases, existing at the time of the sale, of a character which necessarily led to death, though unknown to the seller. In this case it might be sufficient to say, that the absolute refusel to give a warranty; by actually striking out the warranty; which had been prepared, negatives the implied warranty. It Was'd refusal that there should be any warranty. There is, however, a stronger objection ; the disease alleged to have existed at the time of the sale, was fever and ague, which wont on increasing and ended in dropsy, and death, in 6 or 7 months' after the sale. Now it is notorious, that fever and ague is not mortal in one case,, in many hundred cases. It would render the sale of slaves uncertain in the highest degree, if slight diseases existing at the time of the sale, should be decided to be fatal, to the validity of the sale, at an indefinite after period. It would diminish the value of slaves at all sales. The court, therefore, would not give relief in such a c«sé; even if the allegations were fully made out. It is ordered and d'ei> creed that- the bill be dismissed.- HENRY W. DESAUSSUREv Grounds of Appeal'. Í. That on the case submitted, complainant was entitled to th©' relief claimed. 2. That his honor the chancellor; should have directed and re-(Juired the Bar k to prosecute an action at' law on the bond, to have' enabled complainant to'establish her defence; in‘ that coart, where' the character of the warranty, and the nature and extent ol the Unsounduess,.could be'more properly inquired into and established. WM. RICE, ¡Solicitor for Complainant.'
12 S.C. Eq. 115Wurdeman v. Robertson (1837)
12 S.C. Eq. 117City Council of Charleston v. Hagermeyer (1837)
Heard before Chancellor Desaussure, Charleston, January Term, 1836. In 1822, Joseph Clarke, of Charleston, died intestate, having been drowned during the gale, which occurred in September of that year. Letters of administration on his estate, were granted to Dr. John W. Schmidt. No claim having been interposed on the part of the next of kin, it was supposed, that the estate, which was entirely personal, had escheated.
12 S.C. Eq. 120Caldwell v. Giles (1837)
Heard before Chancellor Harper, Charleston, January Term,-1836. The decree of the chancellor states the question made in this Case as follows : “ The complainant’s bill is to Obtain satisfaction of a decree, for fhe payment of $1,488.73, and interest, formerly obtained in this court, by his intestate, the said George Chur, against the defendant,Robert Giles, assignee of Thomas W. Giles'.
12 S.C. Eq. 121Welsh v. Usher (1837)
12 S.C. Eq. 123Wilson v. Freer (1837)
Heard before Chancellor Desaussuke, Charleston, January Term, 1837. William Stanyarne, the testator, died on the 5th May, 1783, 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 1783, or 1784. The sots Charles, also died soon after, under age and without issue ; then the daughter Frances died unmarried. Elizabeth, mairied John Wilson, survived her husband, and died in 1804, leaving issue John, "William, and Sarah Wilson. Mary, married Charles Freer, survived her husband and died in 3811, leaving issue, Frances, Maria, Charles, and John Freer, The sons John and Charles are dead, leaving wills, which have been proved, and the executors have qualified. The testator’s last daughter, Anna, died in the year 1836, un= married. She devised her estate to Maria A. Freer, By his last will and testament, duly executed, William Stanyarne devised his plantation on John’s Island, to his son Charles, his heirs and assigns forever. Provided, that if his son Charles should die, before he attained the age of 21 years, without issue of his body lawfully begotten, then in that case, the plantation so devised to him should be kept, for the use, profit, and maintenance of his (testator’s) wife, Anna Stanyarne, and all his surviving children, or child, for the use, profit and maintenance of all his unmarried children, until the day of marriage. Then and after the said plant, ation should be sold by his executor and executors, and the money arising therefrom, should be equally divided between his wife and surviving daughters or daughter, share and share alike to them and their heirs forever. The first devisee of the land, Charles, having survived his father, the estate vested in him, but he dying afterwards under age, and without lawful issue of his body, the devise to him failed and the estate was divested. The estate continued to be held and enjoyed by the surviving children, who died successively in the order above stated. The daughter Anna, who survived all the rest, having died in 1836, unmarried, the question which now arises, is, whether any and what persons are entitled to the plantation in question, under the will of the testator or otherwise. It is certainly an obscure will, and • it is not easy to form an opi? mion entirely satisfactory to the mind. The description of those who are to take under the devise, does not seem to apply to any of the parties in the events which have occurred. Then it is a case of intestacy ; and as such, is descendible to those who were the heirs at law, or is distributable under the statute of 1791. On the death of Charles Stanyarne, the first devisee, un. married and without issue, the devise to him failing, the fee descended to his heirs at law, to await the contingencies provided for by the will. These not having occurred, the question recurs, who are those heirs 1 Charles, the first devisee, died after his mother and sister Frances, and before the enactment of the statute of February, 1791, which abolished the rights of primogeniture. The estate then descended to his sisters, Mary, Elizabeth, and Anna, subject to be defeated if the contingencies had occurred, (for Anna, the survivor never married.) The plantation or proceeds of the sale, must be divided into three equal parts, and paid over to the respective heirs, or devisees, of the said Elizabeth, Mary, and Anna; and it is so ordered and decreed. The cases cited by the counsel on each side were embarrassing, as they seemed to present similar circumstances ; but on examination, they are not found to be identical. Indeed, few cases under wills, and depending on contingencies, are ever found to be precisely alike ; and the variation of a single fact, or feature in the case, often changes the right and the decision. HENRY W. DESAUSSURE. Ground of Appeal. That according to the true construction of the will of William Stanyarne, the fee in the plantation descended, on the death of Anna Stanyarne unmarried, to those who were then next of kin to the testator, to wit, the children of Mary Freer, deceased, and of Elizabeth Wilson, deceased, DUNKIN', Solicitor.
12 S.C. Eq. 127Seabrook v. Rose (1837)
Heard before Chancellor Desaussuke, Charleston, January Term, 1830. The bill is filed by William Seabrook, and others, joint owners of the steam boat 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. The bill states the case fully, with which a copy of the agreement of the parties was filed. 'By this instrument, each of the subscribers agreed to pay one thousand dollars per share, for' as many shares as he took, for tlie purpose of building and fitting up a steam packet for the conveyance of passengers and freight. And it was agreed, “ that no share should be transferred, or assigned, without notice being first given to a majority of the stockholders of the owner’s intention to transfer.” The bill was taken pro confesso as to M'Kenzie, who was one of the joint owners, and also agent of the company at Augusta, and who it is allowed, is indebted to the company for monies received in the course of the agency. He is insolvent. The creditors of M'Kenzie, and of M'Kenzie & Co., (which includes Merriman,) issued attachments against the property of M'Kenzie as an, abserit debtor. The answers of Messrs. Rose and Bounell, the attaching creditors, insist upon their rights to a priority under the attachments. They deny that the complainants have a right to retain the amount of the shares of iri' Kenzie in the steam boat, “ Wm. Seabrook,” either under the general doctrine of partner, or, as creditors in pos. session. On the face of the instrument, the contracting parties are to be joint-owneis of the steamer, “ The William Seabrook,” according to their respective shares. The only feature in the agreement which might vary the contract, is the clause, that no transfer or assignment should be made without notice being first given to a majority of the stockholders, of the owner’s intention to transfer. This does not appear to me, to be such an agreement, as would amount to what is called a limited co-partnership, (even if such were allowed by our laws,) restraining the exercise of any powers which joint owners have over their shares. It is a mere agreement to give notice of an intended assignment. If the part owner should make such transfer without notice, he may be responsible to the other owners, for breach of the contract, but the assignment would be good as to third persons. The case then stands on the general ground of a joint ownership. There is, however, no proof of any assignment, and the creditors of Mr. M'Kenzie are not claiming under an assignment, but under attachments against an absent debtor, owner of certain shares in the steamer Seabrook. The complainants insist that they are entitled to a lien on the shares owned by M'Kenzie, for the alleged balance due by him to them, áS agent of the joint owners. 1st. On the general principles of co-partnership. 2d, As creditors in possession. The first may be called a vexed question. The decisions by judges of the highest character have differed. In Doddington vs. Hailet, 1 Ves. 497, the part owners of a ship, filed their bill against the representative of a deceased partner, on the ground, that they had a specified lien upon what should be due to the deceased partner for his share. Lord Hardwicke, upon great deliberation decided that they had such alien, on the ground that a ship may be the subject of parinership as wejl as any thing else. Mr. Belt, in his supplement to the cases in Vesey, Sr., p, 497, states that the decision, by Lord Hardwicke, in Doddington vs. Hailet, that “ part owners in a ship are partners, and liable in so-lido, for all goods furnished and repairs,” has beeu overruled on great consideration by Lord Eldon, in the case ex parte, Young, 2 Vesey and Bearnes, p. 242. And on examin ng that case, it appears that Mr. Belt is correct in so stating it. The case ex parte Young, is indeed, precisely the case we are now considering. The petitioners were part owners of a ship, with other persons, two of whom became bankrupt. The bankrupts were also managing owners, and in that character were indebted to the petitioners, and the other owners of the ship, .6287, on balance of accounts, tor >he freight and earnings of the ship, after taking credit for the outfit, amounting to £2'2M, which sum the bankrupts had not paid, and the other owners were obliged to pay it. The petition prayed tho application oí the proceeds of the share of the bankrupts in the ship, freight, &c., towards saiisfaction of the sums due to the petitioners and the other owners. After an argument by the ablest counsel, Lord'Eldon stated that the difficulr,y in the case, arose from the decision of Doddiugton and Hailet, by Lord Chancellor Hardwicke, which was directly in point. Lord Eldon, at first said, he doubted, though there was great difficulty in the case, and the inclination of his mind was against the doctrine of Lord Hardwicke. But it would be a strong act to reverse a decree made by Loid Hardwicke, which he knew was his most deliberate opinion, after geat consideration ; and there was no decree in Equity contradicting that. Afterwards, in a tew days, Lord Eldon said, that af.er great consideration, he must decide against tho case of Doddingiou vs. Halleit. It is exceedingly embarrassing to a judge, administering the jus. tice of the country, to find such able and learned chancellors differing in opinion so widely, and indeed, so directly opposite. With much hesitation, 1 should feel myself, however, under such circumstances, at liberty to follow that opinion, which in my judgment, was most consistent with sound principles ; and it does appear to me, that the judgment of Lord Hardwicke is the most so, on the point in question — for I concur with him m opinion, “That a ship may be the subject of partnership as well as any thing else, the hire and earnings thereof, being proper subject fox tradeand letting a ship to freight, as much a trade as any other ,; then it appears plainly to be a partnership among them, and- the ship itself to be part of tho subject thereof.” i he definition of a partnership seems to include a joint interest in this species of property, as welt as any other kind. Mr. Carey in his Treatise, (in the Law Library,) slates lhat a partnership may be generally defined to he “ a voluntary association of two or more individuals for the purpose of lawful trade, in which each person is to receive and bear his proportional ratio ot profit and loss.’* The interest of each partner in the partnership is his share in tha surplus, hfftr a settlement of the co-partnership accounts: and that interest alone is liable to the separate creditors of each partner — 20 Johns. 611. It does not appear to me, I confess, that there is any solid reason why ships should not be, as Lord Hard-ivicko stated, a subject of co-partneiship. To make that species of property, at d the interests of different persons in it, an exception to the rule, and out ot the reach oí ibe rules and principles applicable to other kinds of petsonal properly, (and in some cases even of real properly,) held m co-partnership, seems to me only ta multiply distinctions and exceptions, in the broad system of princi. pies, and to increase d.ffhulües and litigations. 1 am relieved in some measure from my difficulties in this conflict of authorities and printiples, by the American decisions. Ik Nicoll and Mumiord, 4 Johns. Chau. Hep. S22, it was held by the chancellor, professedly on the later English authorities, — that ship owners were tenants in common, and were not to be considered as partners, nor liable for each other in solido, rior entitled in the settlement of accounts, on the principle of partnership ; the doctrine of Lord Hardwicke, m Dodd.ington and Mallet, being considered as overruled by the modern decisions, and by the universal understanding of the commercial world. But, when (as Chancellor Kent states in his admirable Commentaries, 3 vol. p. 40,) the case of Nic. oil and Mumford, came to be examined in the Courts of Errors, in New York, (20 Johns. Chan Rep. 611,) the doctriue of Lord Hardwicke was considered by the majority of the judges to be the better doctrine, and they decided accordingly, and reversed the des-cree of the chancellor, 'Hie case of Lamb and Durant, in 121 Mass. Rep. 54, was decided on the ground, that vessels as well as other property, might be held in strict partnership with all the control in each partner, incident to commercial eo partnerships. Even lands may be made the subject oi co-panuership, and subject to the rules applicable' to those connexions. (See 3 Kent’s Com. 39, in which he cites various decisions which establish that.) (See 11 Mass. Rep. 4b9, and 2 Mumford, 387.) Winslow ami Chiffelle, Stale Rep. in Equity in S. C.. (1824,) which decided that in case of a Mill held in co-partnership,' that it was subject to be applied like other partnership property. And even Lord Tenter-den, (see Abbott on Shipping 87,) gives to the ownership of vessels, one of the essential attiibmei of a partnership. Chancellor Kent, (3 v. 89,) considers those decisions as an entire subversion of the equity doctrine, now prevalent in England, This is undoubtedly true, and I am content to bo supported by Lord Hardwicke and the American courts. The result is, that 1 am of opinion, the complainants are entitled to the relief which they seek by their bill, on this ground — and I am inclined to think also on the ground of creditors in possession, as against the attaching creditors. It is, therefore, ordered and decreed, that it be referred to the commissioner or master to examine the accounts between the parties, and to report whether any sum, and how much, is due by M'Kenzie, as agent, or otherwise, to the copartnership — and that the two shares held by him in the steamer William Seabrook, be held liable for such amount, and the costs of the suit. HENRY W. DESAUSSÜRE. Grounds of Appeal. 1. That by the decree, an account is ordered to be taken between A. M'Kenzie, and the owners of the William Seabrook, as partners. Whereas in point of fact there was no agreement of partnership. 2. That the decree declares the attaching creditors of M‘Kenzie, to be entitled to no more than the residuum, that may be coming to' him as a partner in the stock held by the owners of the William Seabrook, after the payment of all such sums as he maybe indebted in to the company. Whereas, seeing that M‘Kenzie is a tenant in common with Seabrook, of two shares in the steam boat, and that Rose has got a lien on those shares by his attachment, it follows necessarily, as a legal conclusion, that Rose is entitled to the money for which those shares may be sold, and that if any account is to be taken, it should be confined to the earnings and disbursements of the boat since the attachment. PETÍGRU & LESESNE.
12 S.C. Eq. 131Bank of the United States v. Brown (1837)
Heard before Chancellor Desaussure, Charleston, May Term, 1835. The bill is filed in this case by the bank creditors of Mr. Charles Brown, to set aside certain deeds and conveyances stated in the bill, as void, against creditors, being post nuptial settlements, made or obtained, by á husband, who was indebted at the time; and also, not duly recorded. 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 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. This deed was recorded on 7th 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. C. Brown, at that time. The deed was purely voluntary, and this part of the case was properly abandoned by the counsel, and the property must be subjected to the claims of the creditors. The next is the deed of the 1st 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. Brown, and their heirs. This deed was recorded in the office of mesne conveyance, on 16th July, 1824. If this be a valid deed, it will protect - the property in question, from the claims of complainants. 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, with, out 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 court in Price and White. 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. The next deed is that of the 19th 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 sepa, rate use, remainder to her children by Mr. Brown, and their heirs. It was contended for the defendants, that this was not a marriage settlement, and it was important to insist on that, because, if if should be considered a marriage settlement, it was not recorded ac. ✓ cording to law; for it was recorded in the office of mesne con-veyanee at Georgetown, alone. An attempt was made to supply this defect by proceedings in court, which were stated, The deed, however, acquired uo additional strength by these proceedings, and must be decided upon its own merits. It appears to me, to come clearly within the statutes, and cannot 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. 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 iega} authenticity, without prejudice to third peisons 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. I am of opinion that this properly must, according to the decided cases, be subjected to the demands of the creditors. The decision in Prescot and Hubbell, went very tar, and is, with difficulty, reconciled to other decisions, and does not conclude this case. The next deed is of the date of 7th February, 1826, by which Robert Heriot, th'e commissioner in equity, conveys to J. A. Keith, and J. T. Keith, twenty nine negroes, for the consideration of $10,077, 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, paTt of the case. If we consider the deed as a marriage settle, ment, then not being recorded, according to the statute oí 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. He-not, the grantor, to the trustees, for Mrs. Brown ; and the presumption, that it was paid for out of tne estate of Mrs. Brown, founded pn 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. It is, therefore, ordered and decreed, that so much of the bill of complaint as seeks to set aside the'conveyance of the 1st 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 February, 1826, for twenty-nine slaves, and to subject the same to said creditors, be dismissed. It is further ordered and decreed, that the property and estates comprehended in the deeds of the 17th' January, 1825, (to wit,) Sándy Island and forty slaves ; and in the deed of 10th of November, 1820, (to wit.) the Goose Creek plantation, and forty-oue slaves, are, 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’s 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. ' _ _ HENRY W. DESAUSSÜRE. Grounds of Appeal. From so much of this decree as subjects Sandy Island and ne-oroes to the creditors of Brown, the defendants, trustees for the wife and children, appeal, and hops the same may be reversed, for the following, among other reasons : 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. ' 2. That it was competent for the defendant 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 iuheri. tance. 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 his marriage. EGLESTON & FROST, Solicitors for the Appellants. The complainants likewise appeal from that part of the decree, ■which dismisses so much of their bill as seeks to set aside the settlement of a bouse and lot of land in Charleston, contained in the deed of 1st June, 1824, and the settlement of twenty-nine slaves, contained in the deed of 7th February, 1826, and to subject the said land and negroes to the complainants’ demands ; 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 complainants, on the following grounds : 1. That the said land and slaves were purchased with the funds of the 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 complainants had commenced, are fraudulent and void. 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. 3. That the decree, in the particulars above mentioned, is, in other respects, contrary to law, and to equity, and good conscience.
12 S.C. Eq. 138Messervey v. Barelli (1837)
Heard before Chancellor D. Johnson, Charleston, May Term, 1836. ' In 1828, the late Copt. Messervey, of Charleston, died intestate, seized and possessed of real and personal estate, of considerable value, distributable amongst the defendant,'Sophia his widow, and sis children, who are the complainants in this bill.
12 S.C. Eq. 152M'Dowell v. Black (1837)
Heard before Chancellor Desaussuee, Charleston, January Term, 1837.
12 S.C. Eq. 156Trustees of the Episcopal Church of Macon v. Wiley (1837)
Heard before Chancellor J. Johnston, Charleston, January. Term, 1836. The contract in this case, relied on by the complainants, was made in Georgia, between citizens of that State, concerning a lot in the town of Macon. The lot was put up for sale on account of the complainants, by T. P Bond, an auctioneer ; and was knocked off to one Jesse Smith, as the highest bidder, at the price of $2,460. But doubting the responsibility of Smith, the auctioneer required another name, threatening to re-sell, when J. B. Rowland, one of the defendants, came forward and assumed the purchase, at the price oí $2,400. The auctioneer then entered the name of Rowland, as the purchaser, with a pencil, upon a loose slip of pa. per; and after returning to his office, entered the sale in his sales book. Rowland having referred the auctioneer to the defendant Wiley —Wiley enters into the treaty and arrangements, whether indi, vidually, or as one of the concern of Wiley, Baxter and Car. ter, is a question of testimony. Upon a defect in the title being discovered, it is agreed between the parties, that the fulfilment of the contract should be suspended until the legislature of Geor. gia, shall make good the title. in the mean time, the lot depreciates in value, in consequence of which,'the trustees desire to make Wiley take the lot, and for the same reason, Wiley finally declines taking it. Wiley removes to South Carolina, and the bill is filed against him here, to compel a specific performance of th» contract. DECREE. — The plaintiffs aim at Wiley, as the only solvent de= fendant. It would be sufficient for the plaintiffs to have made out a eon. tract with Rowland, either as the agent of Wiley, or as jointly in. terested with him in the purchase; either would give them a de* cree against Wiley. If Rowland was Wiley’s agent merely, then whatever would bind the agent, would enure to the plaintiffs, as against the principal. If, however, Rowland was jointly interested with Wiley, they are both bound, and although there may have been other persons known lo theso two, who also are interested in the purchase, the plaintiffs are not to be turned round to them, nor obliged to resort to others, than those whose names were disclosed to them, wheu the sale ivas made. Without, therefore, depending upon the evidence, of a direct contract with Wiley, if Rowland made a binding contract, that is enough for the plaintiffs^ provided Rowland was any way concerned with Wiley in the.pur. chase, either as agent or a partner. That there was the connection, of either agency, or joint interest between them, the evidence leaves no doubt. That Rowland made a valid contract, appears t® me equally plain. For admitting that the auctioneer’* memoraa* dum does not take the case out ot the statute of frauds, if of force in Georgia, his answer overrules his plea. Both have answered. Wiley admits the sale, the terms, the thing sold, and to whom the auctioneer knocked down, and leaves it only to be proved, that the bidder was authorized, and by whom ; and the authority of the bidder need not be in writing. Two things, only in the case have created any difficulty in my mind. The first was the case of- Bacon vs. Roach, the doctrine of which, i have always, although joined by few in that opinion, approved. But that has recently been overruled by the Appeal Court. The other related to the power of this court, over the whole contract The land sold is in Georgia ; the plainiiffs are not entitled toa decree, but upon making titles ; and this court has not power to compel them. But 1 can give them a decree dependent upon their making titles. It was, indeed, contended for the defendants, that this court does not possess jurisdiction over any contract, into which, land lying beyond the limits of the State, at all enters. But if the thing which is required to be done, is that which the defendant can do in this State, and there is the obligation of law upon him to do it, the cases leave no doubt, that this court, acting on the person, and not in rem, is not only competent, but bound, to make him fulfil his obligations. Arglasse vs. Muschamp, l>Vernon, 74, decided by Lord Nottingham, iu 1682, is an example. Muschamp, by a fraud in England, obtained a rent charge on the Earl of Arglasse, in Ireland, and on a bill brought in England, where Muschamp was found to be re-iieved against the grant, pleaded to the jurisdiction. The plea was overruled, on the ground, that the court acts in personam, and a release of the grant decreed. Here the fraud was perpetrated in. England ; but that makes no difference, as the subsequent cases shew. For, although the fraud gave the jurisdiction, it was never supposed but once, and that in the next case I shall mention, that there was a local venue as to fraud. In Kildare vs. Eustace, 1 Vernon, 405, tried in 1680, the bill was to be rblieved touching trusts created in Ireland, of lands in that kingdom. Lord Chancellor Jeffries doubted his jurisdiction, because the trusts were not created in Englind, and thought that it was the circumstance of the fraud !>eing committed in England, which gave jurisdiction in Arglasse vs. Muschamp. But he was so clearly wrong, that when subsequently, the same point was argued before himself. Lord Chief Justice Beddingfield, and Lord Chief Baron Atkins, not only were the judges of opinion, that the jurisdiction was complete, but the defendant’s counsel gave up the point. Roberdeau vs. Rous, 1 Atk. 543, brought before Lord Hardwicke, in 1738, was the bill of an infant in England, against the defendant also in England, to compel the delivery of possession of lands in St. Christophers, and for an account of the rents and profits ; to which a demurrer was put in. The court held, that a plea was the proper forra of defence, and therefore overruled the demurrer, but entered into a series of observations, shewing its clear conviction, that whenever the court can effectually act in personam, it lias jurisdiction. Foster vs. Sassall, 3 Atk. 587, which came also before Lord Hardwicke, ia 174-7, turned upon the informality of the ple.i put in, but his lordship, while he overruled the plea for want of aver-ments, took occasion again to repeat the doctrine, that the court must act, so far as it can act, in personam. The case before him, was, among other things, for an account of estates in Jamaica, the executor being in England. Ponn vs. Baltimore, 1 Ves. 444, was decided by Lord Hard, wicke, in 1750, after much consideration, aided by a powerful and sifting argument of the case, the weight of which so impressed him, that he declared it was worthy the consideration of a Roman Senate. It was a bill against Lord Baltimore, residing in England, to compel the specific execution of an agreement settling the boundaries between Pennsylvania and Maryland. The court decreed the execution, disclaiming all power to act in rent, but only in personam. In Cranston vs. Johnston, 3 Ves. jr. 170, which came before the master of the rolls, in 1796, the defendant had, while pretending to treat with the plaintiff for ¡¿payment of a demand he held on him, clandestinely obtained a judgment in St. Christophers, against the plaintiff, who was not resident there, under which, he, with much secrecy and expedition, sold and purchased a rent charge in reversion, which the plaintiff held on property in that colony. The master of the rolls declared, that he must forget the name of the court in which he sat, before he could hesitate to relieve in such a case; asserted the jurisdiction, when it could operate in perso-nam, and decreed a re-eonveyance, deducting the defendant’s debt and expenses. Here is a steady current of authorities, to which twice as many might be added, all to the same effect. I say to the same effect, for although some of the judges did mix up with, their reasons in the colonial cases, a notion that the jurisdiction of the court was increased by the supremacy of England, yet it is plain, that that consideration was not at all necessary in their decisions, nor formed the ground ef them. The case of Pike vs. Hoare, Ambler 428, tried in 1763, and relied on by defendant’s solicitor, is not all calculated to shake the weight of these authorities. The bill was to have au issue of de-msavit vel non, ordered, and tried in England, of a will made there, but charging the testator’s debts on lands in Pennsylvania. The heir who filed the bill, and contested the will, had withdrawn all opposition to probate in the Ecclesiastical Court, and had, without opposing it, suffered a decree to perpetuate testimony to pass ; in consequence of which, the executors and devisees had paid out above 5000 pounds, towards the debts. Lord Henley, who heard the case, although he confesses, he built his opinion materially on the circumstance, that the land lay abroad — yet, unhesitatingly declared, that the plaintiff’? conduct was such, that if the land was íq England, he would not have directed the issue ; that he had completely forfeited his equity. I feel, therefore, warranted in decreeing for the plaintiffs upon their making a conveyance ; although'I would not be prepared to go the length of those decisions which hold that a defendant within the jurisdiction, may be compelled to make conveyances, or deliver possession of lands in foreign parts. That seems a very hard doctrine ; and if the plaintiffs were in this State, and the bill was against them to compel them to convey, I would hesitate much. I think, I would not sustain such a bill. But it stops very far short Of that, to give them a decree upon condition of doing that voluntarily, which I would not compel them to do ; leaving them to take or refuse the decree at their option. Both Rowland and Wiley are before the court. One of them lives in this State — both have answered. But to return to a point upon which I remarked at the outset. 1 Said it was immaterial to the plaintiffs, whether Rowland contracted as agent, or partner of Wiley. And so it is. But it is ma-' ferial to Rowland; for if he acted as agent merely, the whole contract should be thrown, as between him and Wiley, on Wiley. Whereas, if they were jointly interested, tney are both and each, liable to the plaintiffs, and the conveyance should be made to them jointly, leaving them to settle the matter between themselves. But Rowland’s answer admits that what, was done, was done towards a joint purchase, and he may be allowed to speak for himself When he thereby takes a purchase oil his own shoulders. So that, ■the court will leave it to the defendants to determine, whether the decree shall be that Wiley take the titles, and pay the money as principal of Rowland, or whether the conveyance shall be to them jointly, and that both shall be liable for the money. Whatever the determination may be, it is not intended that they should be thereby deprived of the right of appeal. The decree in either case will be, that the titles be deposited with the register and approved by the master, before payment of the price, and that within a given time. When their determination is made, let an order be proposed. J. JOHNSTON, Filed 4th January, 1836. The decree dated the 4th inst., having left to the defendants, the choice oí taking a title jointly or to the said Leroy M. Wiley alone; and no choice being made, it is ordered and decreed, that upon the complainants executing and delivering to the defendants, a deed for the lot No. 5, in square 41, in the town of Macon, to be approved by the commissioner of this court, and tendered to the defendants, or to their solicitor in this cause, within two months from this date, the defendauts do pay to the complainants the sum of ($2,400,) two thousand four hundred dollars, with interest on ($1,600,) sixteen hundred dollars, from the (17) seventeenth clay of January, (1832,) eighteen hundred and thirty-two,.: and on ($800,) eight hundred dollars, from the (17) seventeenth day of July, in the year (1832,) eighteen hundred and thirty-two, and the costs of this suit. J. JOHNSTON. January 18, 1836. The defendant appeals from the decree, made in the case, upon the tollowi g grounds:— 1. Because his honor decreed, that the plea of the statute of •frauds, was overruled by the answer, and therefore could not be maintained. 2. Because his honor decreed, that the court possessed jurisdiction in the case, although the contract was proved to have been made in another State, between the citizens of another State, concerning lands lying in another State. 3. Because if the contract, in consequence of the removal of the defendant into this State, is to be considered as having been made between a citizen of this State, and citizens of another State, the suit ought to have been instituted in the courts oí the United States. 4. Because his honor decreed a specific performance against the defendant, although the testimony and answers proved, that he was interested in the contract, only as one of the mercantile firm OÍ Wiley, Baxter and Carter. 5. Because his honor decreed, that although the remedy was not mutual, and the court held no power to enforce performance of the contract, on the part of the complainants who were without the ju. risdictiou of the court, a specific performance should be decreed against the defendant. 6. Because time is material in enforcing a contract, by a Court of Chancery, when the circumstances of the parties are changed, and the property in this case having depreciated during the period of delay, on the part of the complainants, a specific performance of the contract ought not to be decreed against the defendant.
12 S.C. Eq. 162Bonner v. Cunningham (1837)
Heard before Chancellor J. Johnston, Charleston January Term, 1885. Complainants.
12 S.C. Eq. 166Cooper v. Merrihew (1837)
Heard before Chancellor Desaussuhe, Charleston, May Term, 1835. In this case, the commissioner in his report on the accounts between the parties, disallowed commissions on the receipts and expenditures of the complainant, who was the surviving copartner of a commercial .concern, made after the dissolution of the copartnership.
12 S.C. Eq. 167Holbrook v. Gaillard (1837)
Heard before Chancellor Desaussuhe, Charleston, January Term, 1836. This is a question which has arisen in a respectable family, on the construction of the last will, and a codicil thereto, of their mother. They all desire to do what is right, and submit to the Court the point on which they differ in opinion, with a strong inclination, that the wishes of the complainant should be gratified. It is refreshing to the mind amid the many fierce controversies and family litigations about property, which sometimes embarrass, and always distress the court, to meet occasionally with a case like the present, where family friendships are maintained, and the defendants are desirous, that the claims of the complainant, should be sus. tamed if possible. The brief of the bill and answer, and arguments of the counsel, submitted in writing, state the case, arid the difficulty which arises. I have read with attention, the material clauses of the will of the testatrix, and the codicil thereto, and have examined the arguments of the counsel with care. I have no doubt, that the explanation of the defendants counsel is correct; and the object of the testatrix, in making the codicil to the will, was to put her daughter Mrs. Esther Holbrook, on che same footing with her othei daugh. ters, with regard to her share of the general residue of her estate, bequeathed to them, equally to be divided among them. Now in reality, they were already on the same footing in appearance, and according to the letter of the will. The devises and bequests were precisely the same to each of the children of the testatrix, and their lawful issue. Then comes a provision as to the shares devised to the daugh. ters, made with a view to protect the same from the marital rights of their husbands. This provision gives the shares of the daughters, to the executors of the will in trust, for the sole and separate use of the daughters respectively, for and during their natural lives ; and from the death of such of her daughters, as should or might die without issue surviving them, to and for the use of her other' children surviving her ; and the issue of such as did not survive her to be divided, &c. &c. And as to such daughters, as should leave issue alive at their deaths, in trust, and to the uses and purposes, which they might declare as to their respective shares, by a last will and testament, or by an appointment duly executed, and in default of such appointment, such share shall be to the use of the right heirs and distributees, of my daughters so dying, freed from further trusts. There was, however, a real and important difference in the position of the daughters. All of them, at the date of will of their mother, (5th Dec. 1834,) were married ; and all of them had children, except the complainant, Mrs. Esther Holbrook. After the execution of the will of her mother, her husband died,she having no children and being in middle life. The presumption was, she would not leave any. On the 10th July, 1835, the testatrix made and executed a codicil to her last -will and testament, in which che says, it is her “ will that that part of her will, leaving her daughter, Esther Holbrook, only the income of that portion of her property, which she bequeathed her, should be so altered, as to put her on the same footing in the disposal of it, as her other daughtersThis is badly worded, and is subject to the criticism of the counsel; that to put Mrs. Holbrook, on the same footing with the other daughters, was to give her the power of disposing of her share, if she had children, and if not, her share was to go at her death, to the surviving children ; and the issue of such as were dead, she was already by the will, on the same footing with her sisters. The presumption is, that* findii g Mrs. Holbrook’s husband was dead, she herself in middle life, liavii g no children, and no probability of having children, the object of the codicil was ■to put her on a better footing, and to give her more than the mere income of the estate. It was to correct that. the codicil was expressly made. It was substantially saying, my other daughters have children, and the power of appointment. You have no children, nor the probability of any. I have given you by my will, only the income, (with limitations over,) without the power of appointment, unless you have children. • This is unequal, I will there* fore put you, though without children, on the same footing as to the disposal of their shares of the estate, as my other daughters who have children If this be not die sound interpretation, then the' codicil was a mere nullity, without meaning, and worked no changó in the situation of Mrs. Holbrook ; though‘it expressed, and avows Its object to be. to alter her interesi in the share she had given her, to something different from, and more that, only the income. The circumstances stated are extrinsic to the will and codicil and the Court rtsorts with the rnóst extreme caution and reluctance^to the evidence oi extrinsic circumstances in the construction o Wills. Yet, of necessity it is driven so to do, in some cases, or see the very object and intentions cf testators defeated, by a too rigo. rous adherence to the rule of excluding all evidence, which might; throw light or lead to the discovery of testator’s intentions. Therefore, the situation of the family is sometimes- taken into view in order to enable the court, to foim a judgment of the intentions of" testators. It is a painful duty imposed on the court, thus to hunt out, and conjecture the intentions of testators. But the negligence and carelessness of parties, the obscurity of the provisions of their wills, toree them to do so, In Parsons vs. Lance, reported in Ambler 557, and in 1st Ves. Sen. 190, and in White and 'Barber, 5 Burrows, examples occur, w hich show how far the court goes to discover the intentions of testators, and to prevent their wills from being used to injure their own families. I am then very strongly inclined to say that the true,construction of the codicil of Mrs. Gourdm’sVill, was, that it was her intention to authorize and enable her, not only to enjoy the income, as she would under the will, but dispose of the estate absolutely — though she had no children, and should leave none. It was, therefore, competent to the other daughters to agree to' confirm this interpretation of the codicil, and to put her mind at éase on the subject ; which they have wisely and kindly done, as far as they felt themselves competent to do. On the subject of the question of the estate in the other daughters, and their rights, it was urged that they had merely estates for I ife, and could cot bind the estate of their children,- to whom the limitations were made. The doctrine relied on, is founded on ¡he rule in Shelly’s case. As to the rule in Shellv’s case, iu reality there was no decision by the court, (1 Co. 93,) but the rule was expressed in the argument', as an acknowledged rule of law, not questionable. This rule has been the subject, or the occasion of immense litigation and discussion, of the most difficult and entangling nature — and its value as a rule of property, has been very much questioned, for the distinctions are so numerous and intricate, and the refinements so complex, that it has been exceedingly difficult for the most experienced oouusel to advise with certainty, or the most learned judges to decide satisfactorily, on all the nice shadings of different cases before-them. It is not my intention to enter on its discussion here. It is sufficient to say, that I am of opinion the estates in question, devised by Mrs. Gourdin to her daughters, vested in the ancestors, so as to enable them to dispose of them, and to- contract respecting them. And that having agreed to release their interests in the limitation-over, of the share of Mrs. Holbrook in her mother’s-estate, under her will and codicil, they may do so with safety, and without the violation of any right of their children. It is ordered and decreed, that the defendants, the daughters of' the late Mrs. Gourdin, and their respective husbands, do in pursu. anee of their agreement, join in the execution of such deeds, or releases, as may be sufficient to give full effect to the codicil of the-will of Mrs. Gourdin, in favor of her daughter, Mrs. Holbrook, and to enable her without disturbance, to dispose absolutely of her share of the estate in question. HENRY W. DESAUSSURE. Filed April 23-, 1636-. Grounds of Appeal. 1. That if the codicil of the 10th July, 1835, gives tlie complainant an absolute power of disposition over her share of testatrix’s estate, it is unnecessary for the defendants to execute any releases, or other deeds, for the purpose of giving her what she already has. 2. That if the codicil does not give her the power in question, the defendants have not such estates in, or power over the property devised to them at her death, in- case she should leave no issue surviving- her, as would enable them to release or dispose of it, otherwise than by last will or appointment, to take effect if they should leave issue surviving them.
12 S.C. Eq. 174Barksdale v. Payne (1837)
Heard before Chancellor J. Johnston, Charleston, January-Term, 1835. DECREE. — The plaintiff’s claim, 1st, under the marriage settlement, certain bank shares, and the amount of Mr. Edwards’ bond. 2d. Dower in certain lots.
12 S.C. Eq. 179Lewis v. Taylor (1837)
Heard before Chancellor Desaussure, Charleston, January Term, 1837. The bill was filed to set up a contract for the sale of a piece of land. The land belonged to Josiah Taylor. He employed FL B. Toomer, as auctioneer, to sell it.
12 S.C. Eq. 181Assignees of Perman & Bacon v. Tunno (1837)
Heard before Chancellor J. Johnston, Charleston, May Term, J834. This case having been reversed as against the executors of Tun-no, wno died pendente lite, came on to be heard 7th May, 1834. It appeared that it was referred to the commissioner, to report on the case generally, and his report with exceptions thereto, came on at the hearing. What I make of this anamobus proceeding is this, that there has been no decree on the equities, and that the report is taken as evidence merely. The question whether Bacon was properly rejected by the commissioner, is not pressed. It is unnecesary, therefore, to decide it. On the pleadings, aud evidence taken* the court must base its de-cisión. Tunno took a bond of the date of the 17th May, 1825, signed by Geo. Perman and Edward Bacon. In the body of the bond, the obligors say, “ We, G. Perman and Edivard Bacon, now trading under the firm of G. Perm in % Co., are held and bound to Adam Tunno, in the sum of $5,560 ; for payment whereof, we bind ourselves, and each and every of our heirs, executors, and administrators, jointly, and severally.” The condition underwritten, is, “ That if the above bound G. Perman and Edward Bacon, their heirs, executors, and administrators, shall pay Tunno the sum of $2,780, with ¡merest from the date, by the 1st February, 1826, the bond is to be void.” G. Perman and E. Bacon, when they gave this bond were trading under the partnership style of Geo. Perman & Co. After the execution of the bond, Geo. Perman died, the bond remaining in full force and unpaid. ilis widow, Isabella Perman, and one of the plaintiffs, administered to him. She and Bacon instituted a new partnership, under the style of Perman & Bacon, and proceeded in business. At Perman’s death, he left among his credits, a claim on one Saltus, of Beaufort. The administratrix sued on it, in the Court of Equity, for that district, and obtained a decree, which brought the money recovered into the hands of Grayson, the commissioner, who is a defendant here. Grayson, taking a bond of Indemnity from Tunno, paid over to Tunno on his bond a sum of money out of that recovered by administratrix, against Saltus.. Tunno then died. And this bill is brought by the admi. nistratrix, joining to herself, as co-plaintiffs, certain persons to whom the firm of Perman & Bacon have assigned their credits and assets, against Grayson, an¿ Tunno’s executors. Bacon is no party. The plaintiffs allege, that upon the institution of the new firm of Perman & Bacon, that firm advanced large sums of money, to enable Mrs. Perman, to pay the debts of her intestate, which she applied to that purpose. That, when they loaned those sums, they hoped and expected to be refunded from demands owing to the intestate, when collected ; and “ looked principally to the debt on Saltus.” They further allege, that Tunno procured the consent of the administratrix, to draw the money from Grayson on his debt, under a misrepresentation to. her, that his bond was a bond on Geo. Perman. But that she learning thai it was a bond on Geo. Perman & Co., declined giving him an order on Grayson for the money. But, that, without any authority he still went on to require, and Grayson to pay it; Grayson securing himself against the consequences of his unauthorized payment by Tunno’s bond of indemnity. The commissioner reports, that the adminis-tratrix paid off several demands against the estate of the intestate, of higher rank than bond debts. But no account has been taken of Geo. Perman’s assets, nor of the account between him and the firm of Goo. Perman &• Co., so as to show that the administratrix, is in advance of the assets of her intestate, in paying the debts she did ; and requires to' be indemnified out of the assets, which Grayson paid to Tunno. The first question is, what is the character of the bond held by Tunno 1 Is it a partnership bond, or a bond against the obligors as individuals 1 It was argued that it cannot be a partnership bond, because there can be no such thing. But I apprehend this is a mistake. A part-nersliip may bind itself by deed; and a bond is but a deed. The cases quoted do not establish that a partnership may not be bound in a bond, if it be executed properly. One partner cannot sign in the partnership name, so as, thereby, to bind any but himself in dividually. Such an execution does not bind the firm. But the cases are express, that if lie sign? by the assent, and in the presence of the other, the firm is bound. The cases rightly considered, do not go on the impracticability of creating a bond by a partnership, binding on it as a partnership ; but relate simply to the mode of doing it — lo the mode of creating the bond. In the bond signed by G. Perman and Ed. Bacon, they describe themselves as partners, exactly in the way they would be required to do, if they were suing on a partnership demand — or should be described if sued on a debt due by them as partners. I think this is sufficient to make the bond a partnersnip bond at least. But Í think it is not only a bond of the firm, but that the other words employed in it, make it, also, the joint and several bond of the obligors, as individuals. Now, the plaintiffs admit in the bill, expressly, that if it was the bond of G. Perman, the administratrix assented to Tunno’s receiving the money from Grayson. I may as well here intímale my opinion, that if the bill be not in some sort construed to mean, that Tunno got the money from Grayson, with the assent of the administratrix, her remedy would seem lo be at law for money or securities of the estate. Tunno’s possession would bo tortious. If he received money, the tort might be waived. And assumpsit for money liad and received to the use of' the admi> isrratrix, would lie. It securities, then trover would lie, if assumpsit would not. Taking h for granted, however, that the administratrix in some ■way gave authority to Tunno to receive, her right to the amount refunded must depend altogether on her having, by mistake, misapplied the assets m paying him what he was not t-mitled to. It is conceded, by the defendants, that if in due course of ad" ministration, the amount received by Tunno, would not have gone to him, a refunding may be ordered. This iD- liberal, for the case of mistake is not made by the bill. But how can this be ascertained, without taking an account of the intestate’s estate, and of the administration ? This has not been done. As to the right ol Bacon, the surviving partner of G. Perman & Go., to have the partnership debts paid out of the joint funds, and the private debts out of the property of the parties, it can have no application. His rights depend on his interests ; and his interests are directly against this bill His interests, undoubtedly, would be to let G. Perman’s estate pay off the debts of the firm, in exoneration of the joint assets — besides, we cannot talk about his rights — » he is no party. It is true, the representative of G. Perman, whose estate would be benefited by the application of the partnership assets, in payment of the debt, is a party ; but then she has not brought iu the surviving partner — without which no decree can be made, binding on him, in exoneration of her intestate’s estate. This she was bound to do. Tuuno cannot be denied the benefit of his contract, as with Perman, individually, but on condition that Perman’s representative will give him an available fund in lieu of Perman’s.' As respects the claim set up by the assignees, Per* man and Bacon, to the fund divested by Grayson, it has no bearing. They have no title to that fund, unless they can add to the assignment executed to them, a transfer from the administratrix, vesting the fund in the assignees. This link is lacking in their chain of title. I will refer it to the commissioner to take and state an account of the assets, administration, and debts, of George Perman’s estate, for the purpose of ascertaining, whether the administratrix is in advance of the assets, so as to need any thing to be refunded by Tunno’s executors, for her indemnity ; or in other words, whether Tunno has received ai'y amount, which in due course of administration, he would not have, received ; and what amount in the report, coming in a further order, will be made, according to the circumstances which it may present. A reference is ordered accordingly, the matter of costs reserved. J. JOHNSTON. Grounds of Appeal. 1. That his honor having decided the bond of Tunno, to be a partnership bond, it could not come in as a several bond, to be paid out of George Perman’s sepárale estate, until the separate debts of said estate were first paid ; according to the settled rule, that sepa-rale debts must first be paid out of the separate estate, and partnership debts out of the partnership funds ; and it is not the business of complainants to see whether Perman & Co’s, estate be sufficient or not, to pay Tunno, inasmuch as that cannot affect their claim to be first paid out of the individual iuud — which they now pray may be decreed. 2. Because Tuuno was not entitled to receive, nor Grayson to pay, the funds of George Perman’s estate, without authority from administratrix j and she is entitled to baye the fund restored to her possession, to administer according to law. 3. Because the decree was otherwise contrary to law. BUiteT & SMITH, Complainants Solicitors.
12 S.C. Eq. 187Coburn v. Magwood (1837)
Heard before Chancellor Drsaussure, Charleston, May Term, 1835. The former commissioner, Mr. Thomas Hunt, made a report in this case, on the 29th January, 1830, stating that he made sales of the real and personal estáte of the late John Coburn. That the sale of the slaves amounted to $14,963 ; and that Mrs. Wood, one of the distributees of the estate, became the purchaser of part of the said slaves, to the amount of $2,145 ; and Miss Jane Coburn, to the amount of $2,815; but neither of them had complied with the terms of sale. That the commissioner had received from. other purchasers, cash to the amouut of $5,388; and bonds to the amount of $4,621. That one tract of land of the estate, was sold for $1,050, and purchased by Mrs. Wood, who did not comply with the terms ; there were no bidders for the other tracts. The commissioner recommends sales. That advertisements for creditors, were issued, calling on them to furnish their demands, which was done to the amount of $9,647.60, as per schedule, which have been paid. That the total amount of receipts, including cash on tho bonds, and interest, amounted to $9,792.89, as appears per schedule. That he, the commissioner, charged the estate of John Coburn, with the debts contracted in Ids life time., and for the benefit, of the estate, as per Exhibit No. I. That such other debts as were not incidental to the estate, but have been contracted for the family generally, he, the commissioner, had equalized, and charged in equal proportions, to each heir respectively, as appears by Exhibit No. 2. Among the debts presented against tho estate of John Co-burn, wore the following: A judgment by E. Carter vs. Mrs. Coburn, $758.49, with interest; a judgment by Crovat vs. Mrs. Coburn, $656.95. The items on which these judgments were founded, shew that they were articles of groceries, and other articles necessary for a family. But plaintiffs having proceeded at law, against Mrs. Cobum indi, vidually, it is submitted by the commissioner, whether they have not forfeited their equitable claim on the estate. That another judgment against Mrs. Coburn, and sundry accounts, and a legacy of £100 sterling, remain to be provided for, which if to bo paid, can only be paid out of the sales of the lands of the estate, remaining now unsold. Exceptions were filed to the above report, and a decretal order was made January 29, 18:30, directing that the report and exceptions, be referred to the present commissioner; and the documents and funds in the hands of Commissioner Hunt, bo transferred to the present commissioner, with directions to vouch the expenditures and make up the accounts ; and that he should soli the lands, and the slaves purchased and uot'paid for ; and generally a full and final report aud settlement of the affairs of the estate. The present commissioner, in obedience to this order, now makes his report; wherein he states, that he received from tho former commissioner, certain funds, which he specifics. That he examined the accounts of Mr. Hunt, the former commissioner, and allowed such as were vouched, and the balance in favor of Mr. Hunt, amounted to $208.05. That he examined and reports trom No. 1, to No. 10 inclusive, stated by the former commissioner, with the widow and children of John Coburn, under former orders of tile court. That the Schedule A, is an exhibit of the demands of creditors presented to Commissioner Hunt, aad transferred to the present commissioner, and remaining unpaid for want of funds, to the amount of $6,568.10. Of these debts the present, commissioner reports the following as duly vouched. Debt to Dr. Samuel H. Dickson, for a balance of $595.75; Eliza Carter, $768.49 ; and that of Crovat for $65#.95. These were not demauds against the estate ; but also Johnson &. Maynard, $322.B0, of which only f 95 §2 cents, against the estate. These were not debts of the estate of John Coburn ; but under the orders of the court, they may with propriety be charged against the distributive shares of the widow and children iu court, before the distribution, as they were debts contracted for the use of the family generally. The commissioner reports that nothing has been paid him on either of the bonds reserved. And states some difficulties, on which he asks the directions of the court. He reports that he has sold two tracts of land of the estate, for $2,210, and the terms have been complied with. That the slaves' purchased by two of the children of John Coburn, and not paid for, have not been delivered up to him for re-sale, nor is he able to ascertain how many arc remaining, or in whose possession they are. To this report, exceptions were filed on behalf of the children of John Coburn. As the 6th and 7th exceptions alone were argued, it is presumable, that the rest were considered untenable, and therefore abandoned. No facts were stated, or reasons urged in support of them. Therefore, they must be considered overruled. The 0th exception is in the following words ; “ That the com. missioner had no authority to recommend the payment of the debts of the distributees before distribution ; and the creditors were not authorized to present their demands.” And the 7tb exception in support of the claims of the children, is, “ That the children of John Coburn, have had four years adverse possession of the ne-groes.” These exceptions bring before the court a very important subject for consideration, which is of great interest to creditors of estates, and of the heirs o,f estates. A person dios leaving a widow anc! children, anda good estate, bu! considerably indebted: tile widow, yvho is executrix, and the other executors, take measures to have, the estate settled by collecting debts due, selling parts of the estate ; and some payments on the debts due by the estate, are made by the executors. Meanwhile, it is necessary to support the family and to educate the children, and expenses are incurved for those purposes, and some debts contracted. After some time the widow and children, desire to have a settlement of the estate, and file a bill against the acting executor for that purpose ; various orders are made; sales are directed to be made; and debts directed tobe collected, and those due to be paid. Sales are made ; some of the distributees become purchasers, and do not comply with the terms ; and the debts remain unsatisfied lor want of funds. This state of things exist in the case, we are considering. The management of the cause for settling the affairs of the estate, have been in the hands of the executors, and distributees. The rights pnd interests of creditors, have been but incidentally brought before the court, or taken care of; and now it is attempted by these exceptions, to exclude the creditors, and to permit distributees to have their shares of the estate; yet they have got possession of the property of the estate,■ by breach of faith in becoming purchasers, $nd not complying with the terms of sale. If they should succeed itl their claim to have a distribution of the estate, and leaving the creditors, who furnished the means of subsistence, to pursue their claims upon an exhausted estate, or by separate suits against the dis-tributees, at law, which could not be sustained, because there was ho privity of contract between the creditors and the distributees ; the creditors would be utterly defeated. It appears to me, that this would be gross injustice, which this court ought not to sanction. It is, therefore, ordered and decreed, that these exceptions be overruled; and that the report be confirmed. And it is further ordered, that the commissioner do proceed diligently to settle the affairs of the estate ; to collect what is due and satisfy the credhors. That lie take proper measures, to compel the distributees to pay the amount of their purchases, or to deliver up the property purchased by them, for re-sale ; and to make sales of the undisposed property ; and to recover the debts on tho bonds, by suit or otherwise. I-IENRY W, PESAUSSURE. Grounds of Appeal. That in a suit brought for settlement of the estate of a testator, no creditors but those of the deceased are proper parties, The creditors of distributees, have their remedy at law, where they can compel an assignment of the interest of their debtors. That in this case Crovat’s judgment is satisfied by execution and the person of his debtor. That the exceptions ought to have been sustained, as the individual creditors of the distributees, and not parties to the record. That the purchasers who have been four years in peaceable and adverse possession of their purchases, cannot be compelled to give up their property, especially without suit, but are protected by the statute of limitations. That the suit abated by the death of the complainant, and no proceedings can be had until proper parties are made. HUNT, for Appellants.
12 S.C. Eq. 193Fogg v. Middleton (1837)
Heard before Chancellor Desaussuke, Charleston, April Term, 1835. It is proper to state the relative situation of the family, and the circumstances of the case, winch may be summed up in a short compass. Mrs. Mary Middleton was the" widow oi Mr. Arthur Miudieton, the illustrious sig-.er of tin- Declaration of Independence, amt ns vindicator with his sword, be died, intestate, after the termination jf the rovoimionary w’ar, but prior to the statute of February," 1791, abolishing the rights oi primogeniture, and his real est ue descended to his eldest son, Mr. Henry Mmuleton, one of the "defendants ; w'hilst his personal estate was distributaole, by law, among his widow and children, consisting of his two sons, Mr; lle.n; miooleton, and Mr. J. I, Middleton, and Ins daughters, who respeouvuiy intermarried with Mr. Joseph Mauigay.U, Mr, Henry Izard, Mr. Henry M. Rutledge, Mr. Daniel E. Huger, and Mr.--Blake. Mrs. Mary Middleton, in her life time, conveyed, by deed, to her second son, Mr. J. I Middleton, her large veal estate ; and by a will, purporting to be her last will and testament, disposing of her personal estate, bequeathed the greater part thereof between her two sous, and gave considerable pecuniary legacies, (as is alleged,} and which does not seem to be contradicted, to each of her daughters, (except Mrs. Manigauit, who was dead.) Afterwards, she executed another will, and died in 1814, leaving the same in full force, by which she disposod 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 be^ low the legacies under the former will, ' The persona] estate of Mrs. Middleton V/as appraised at upwards-of sevcnty-o'ne thousand dollars. 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 oars ot 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 of 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 Ins mother, for his own ba.-nefit, 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 trans. mitted them to their respective husbands. These, it seems, were returned by all of them, except Mr. Henry Izard, who, it 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 17th May, 1815, to Mr. Henry Izard, in which he speaks fully on this subject; and explains his views and intentions, his motives and his acts, in rola lion to all his sisters. Mr. J. I. Middleton, in pursu-anee of these intentions, executed bonds, in trust, to his brother,. Mr. Henry Middleton, with condition 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 1817, 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 bis attorney and agent; and to apply the income o.f 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 complainant. 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. 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 w'ere paid, without interest, till a year after those payments. 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 ? It is proved 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 offeuee to their mother, (for that is not pretended,) had produced a painful effect on their minds. They were disappointed of reasonable expeeiations, 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 miud, and to secure himself from suspicions, if not imputations of an undue infiueuce exercised over tlie mind of lus aged mother. He, himself, therefore, proposes to give them bonds, equivalent to their expectations, under a former will. Ke, himself, in his letter to Mr. Izard, puts it on that ground. He valued family concord, and propitiates it, by doing voluntarily, an act which 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 which the bond can be supported. It was. however, urged, that it was not delivered to Mr. Henry Middleton, as trustee, for the persons intended to be benefitted, 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, aud how his brother consi-sidered it. He says, in his letter, “ In order so effect this purpose, my brother has consented to become a ‘trustee, for bonds, to the amount of the supposed deficit, which I have drawn in favor of my eldest niece,” &c. “ I had it drawn in this manner, (stating the manner,) in order lo 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 irrevocable, (as my determination always has been,) through my brother.” in the letter of 17th May, 1815, he says, “ A bond drawn in the manner you mention, shall he substituted for that now in the 'possession of my brother.” Surely, these various expressions denote a finished act irrevocable ; and that his 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, arid these clear and positive declarations, by recollections at the end of twenty years, seated by the defendant, himself, with proper caution, as uncertain ? Assuredly not. The court must and will look to the acts and declarations of the party at the time of its origin, and not to (aint, and doubtful, and ancient, recollections ; and so with regard to Mr. Henry Middle-tou, the defendant. In his answer, after twe..ty yours, ,tod 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 hts bu-ds as trustee or as agent of bis brother, and whetherhe accepted tli ■ rust. His brother, Mr. J. 1. Middleton, unqualifiedly, says, lie had co .ne.it-ed to serve as trustee. Could lie be mistaken, when speaking t he very time of the transaction? Or is it not more hk--ly, that a recollection, at such a distance of time, should be incorrect? í lio evidence, too, of Mrs. Rutledge, a lady of the. most respectable character, drawn from her reluctantly and painfully, taken iu connection with Mr. J. i Middleton’s letter, is conclusive. She tesufi -s, “that in the month of October. 1819, she passed a few days with her brother, Mr. Henry Middleton, at his residence, near Washing, ton. During her stay, and the morni. g preceding the day of her ce. parture, he made her a communication respecting a bond executed by her brother, J. 1. Middleton. He sluttd that as they, the wit. ness and himself, might be separate m.my years, he requested her to recollect, that among other bonds, left with him by bis 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, 1 must lemember. 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 -is 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 remem-, ber the date. The witness was under the impression that the other bonds alluded to, were of asimilar 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, bad 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, positive, and affirmative evidence of a witness, entitled to the highest credit, who gives par-ticularp of time and place, and the occasion of the communication, on a subject of which her attention was particularly drawn, a few years after the execution of the bond than on the negative recollections of a defendant, even oí the same high character, after a lapse of twenty years. 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, 1 think, amply supported by the authorities cited by the counsel in the agreement. The only question which remains, is, when it shall begin to near interest. The condition of the bond, is, that the sum of one thousand pounds sterling, should be paid in three equal annual instal-ments, to commence from the day when the debt and legacies charged on the estate of the late Mrs M iry Middleton, mother of the said J. i Middleton, shall have been paid and released, with annual interest on the said sum, which imerest snail commence from the end of one year, after payment of debts and legacies, as. .aforesaid. The complainants allege, that the income of the estate was sufficient to have paid the debts and legacies, some time in the year lt-tóO, and that the interest should commence, one ve.ir 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 sufk fi'cieut to have paid the debts and legacies of her estate, before-about the year 1830, or 1831 ; consequently uo interest is charge, able -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 terra. It appears that the personal estate bequeathed by Mrs. Mary Middleton, to her son, Mr. J. I. Middle, ton, remains in the hands of Mr. Henry Middleton. It is, therefore, ordered and decreed, that the sum of one thou, sand 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 accou its 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 been paid, which shall be paid out of the said estate. On further consideration of this case, it appears to me, proper to add, that afier 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 notin his 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. 1. Middleton says, in his answer, that he did not advise his hrother 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. defenco. I cannot, upon the fullest consi. .deration, see any reason to doubt the equity and the legality of decreeing for the complainants. HENRY W. DESAUSSURE. Defendants appeal, and hope the decree may be reversed, for the following, among other reasons : 1. That complainants 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 complainants 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. 2. That the bond being voluntary, and the complainants not parties to it, J. I. Middleton had a righr, if he saw fit, to recall the money. That he has exercised this right, and equity will not con. trol the legal right of the obligor, or obligee, or give fire complain? ants a better security. 3. That in point of fact, there was no delivery of the bond ; and no acceptance of the trust, by the supposed trustee. 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 ; hut, in opposition to equity, makes the defendant liable to the complainants, for the default of a third person ; and decrees interest- from the time when the debts and legacies might have been paid — if moneys lost, without the wilful default of the defendants, had been duly applied.
12 S.C. Eq. 200Esswein v. Siegling (1837)
Heard before Chaucellor D. Johnson, Charleston, May Term, 1836. Theodore Esswein, of Charleston, by bis will dated I7th March, 1830, gave all his estate,-to his parents, Jacob Esswein and Anna Marta Esswein, and his sister, Nancy Esswein, of Manheim, Germany ; and named Dr. Benjamin Simons, and John Singling, of Ch- rleston, executors. Anua Mari i, died before the testator, and he died in Cuba, on the 28th June, 1830.
12 S.C. Eq. 205Whilden v. Whilden (1837)
Heard before Chancellor Desaussuke, Charleston, January Term, 1837. ’ The case, for our consideration, arises under the last will and testament of the Into Mr. Elias Whildeu. It appears that he duly executed his last will and testament on the 16th June, 1835, and died soon after, leaving the same in full force. At the time pí his death, he left alive his wife, Laura, the complainant, and several children, by tier, who are minors ; also, several children by a former marriage, who arc of full age. The tes'ator, by his said will, bequeathed one thousand dollars to his wife, as soon as the money could be collected. Ho directed his whole estate, real and per-s -nah to bo so]!, and the money to bo laid out in bank stock, “for the support of my children, until my youngest child shall come to the age of tuei.t;, .one years, or get married : and then the money, to be equally divided between all my children, or their children, should they die before the youngest comes of age, or gets married.” Two questions grow out of this will. The first is, which of the children of the testator are entitled to the support to be drawn from the bank stock? It was contended for the minor children of the second marriage, that they were exclusively entitled to such sup. port,"because they alone stood in need of it ; the elder children, by the first marriage, being adults, and the females, married, and ha. ving been already, in some degree, provided tor by gifts from the father. On the other hand, it was argued for the elder children, that the provision made by the father for them, in his life time, was small; and that the text of the will is to govern — that the direction of the will — that the money should be laid out for the support of his children, includes all the children of the testator. This question was argued with consummate judgment, ingenuity, and learning, by the counsel on both sides. On a careful examination of all the circumstances of this case, the leaning of the court on this question, as far as it dares to have a leaning, is with the complainants. The elder children were grown up, and did not seem to stand in need of support; and the income was small, and not more than sufficient to support the numerous minor children. The postponement of the distribution of the estate, until the youngest child should come of age, or marry, and the provision of a former will, all lead the mind to the belief that the testator meant the income should be applied for the support exclusively of the minor children, who were otherwise entirely unprovided for, and not of the elder children, who had already been somewhat provided for. This impression is so strong, that it is with great difficulty I can forbear to yield to it. Yet I am recalled to the recollection, that I am construing the will of a testator, in doing which his intention makes the law of the case ; and that where he speaks distinctly, it is my duty to understand him in the plain sense which his words import ; and not to hunt for meanings ether than those expressed upon conjectural interpretations, founded upon circumsiances wholly extraneous to the will. That instrument says, “ th" moneys arising irom the sales from the real and personal estate, must be laid out in bank stock for the sup. port of my children.” The words, “ my children,” surely include all his children ; so to abridge it of that meaning, and to exclude the elder, or any class of his children, would be a violation of the plain words, and their common purport. It is true that there are many circumstances in this case, extraneous to the will, which have been pressed on the court, to lead the mind to the belief, that in the haste of drawing a will, by an unskilful pensman, for a dying man, some mistake may have been m tde, and that the testator did not mean to say “ my children,” but “ my children by my second mar. riage.” It would, however, be too*bold a departure from the letter of the will, and too dangerous a resort to extraneous circumstances, to control, and oven change, the disposition of the property. I am,' therefore, reluctantly, obliged to pronounce that the words of the will must prevail, according to their plain and common purport, and that all the children of the testator must have the benefit of this provision. The other question, on the case, relates to the dower claimed by the widow. It was argued for the defendants, that the bequest of one thousand dollars to the widow, was intended to be, and is in lieu and bar of dower. The widow is clearly entitled to her dower in the real estate of the testator. The question is, whether she is entitled to the legacy of one thousand dollars, as well as the dower, or should she be put to her election. The dower is a provision made, by law, for the support of the widow. A legacy is a provision made by affection, for the better support of the wife. There is scarcely any man owning real estate, who does not know, in fact, that his wife is entitled to dower in that estate, and the law implies the knowledge. The presumption, therefore, is, that when a testator bequeaths a legacy to his wife, he intends it as an addition to the legal provision of dower, unless he declares it to be in bar of dower, and she shall be entilled to both. But he may exclude her from claiming her dower, or put her to her election, by declaring that the legacy is intended to be in bar of dower. Clear as these rules appear to be, when stated in the abstract, there is a good deal of difficulty in the application of them to the great variety of cases, presenting very numerous combination of circumstances. In some of the books,Jt is said, that where the wife has two provisions, such as a legacy under her husband’s will, and her dower, She shall be, in most cases, put to her election. But this- is putting it quite too broadly — and I apprehend the true rule to be, that a. widow cannot be put to her election, unless by express declaration or necessary inference, arising from the inconsistency of her claim with the provisions of her husband’s will. See 2d Ves. jr., 572, French and Davis, 3 Ves., 349, Strahan and Sutton. 6 Vesey, 615, Greatore vs. Carey, it is not that there is an additional provision made for the wife, by the wd! of the husband, which deprives her Of dower, or puts her to her election, for, in many cases, she is entitled to both. See 2d Aik. 427, Cation vs. Hancock, where the estate devised to the wife was larger than the dower. So where in a will, the husband, taking no notice of the wife’s right of dower, made a provision for her out of the personal estate, by way of residue, she shall have both. See Ves. Sear, 230, Ayres vs. Willis, And this is the rule, even in case of a provision for a wife, by an annuity, which is considered a less sacred claim than dower, she shall have both. See 7 Brown’s Pari. Cases, 12, Broughton vs. Covington. See, also, 3 Bro. Ch. Cas, 347, Foster vs. Cobler. -See, too, 2d Sch. and Li-fr, 444, 449, Birminghan vs. Kirurn. The foundation of the rule of election, is, that a person cannot accept and reject the same instrument, and applies to every instrument, whether deed or will. But as the right of dower is a clear legal right, an intent to exclude that right must be demonstrated by express words, or by clear and manifest implication, and in order to exclude that right, the instrument must contain some provision inconsistent with the right to demand dower. There are many other authorities against putting the widow to her election. 2d Vern. 366, Lawrence vs. Lawrence, 1 Brown’s, P. 591. Atk. 535, lucledon vs. Northcole. 1 Bro. Ch. C. 292, Pearson vs. Pearson, 3 Bro. Ch. Cas. 409, Middleton vs. Cater and others. One case, indeed, in 2 Dickens, C65, aBrown vs. Perry, goes so far as to say that a devise to a wife must actually be expressed to be in bar of dower, to have that effect. That, however, is going beyond the rule, and proves only the extreme reluctance of the court to bar the widow’s dower, unless there be an express declaration, that the devise is intended to be in bar of dower, or such clear repugnance in the provision by will, as to raise a necessary presumption that it ivas so intended. There being no express declaration in the will, we are considering, we must examine whether the legacy of one thousand dob lars to tho widow, shows such an intent to exclude dower by plain and manifest intent. And certainly taken by itself, it docs not show such a manifest, intent.; else, in every case, any legacy to a wife, might be said to raise the same implication. But it was urged, in argument, that the claim of dower would defeat the other provisions of the will, which direct the solo of the real and personal estate, and the investment of the proceeds in hank stock, for the support of the children of the testator. It will, certainly, lessen the amount to be invested, so to form that fund, but it will uot defeat the arrangements and dispositions made by the testator. They may', and will, all he carried into effect, diminished only by a small amount which he, himself, carried out for his wife. For this direction to sell and invest, is after the legacy of one thousand dollars to the wife, showing that ho intended that amount to be first with, drawn from the fund, before the investment. It is not clear of difficulties, but to the best of my judgment, the widow is entitled to her dower, and the legacy. . It is, therefore, ordered and decreed, that the legacy of one thousand dollars be paid to the widow, out of (he sale oí the estate, and the amount o! the dower which may be assessed, and the balance arising from Ihe sales of the estate, invested by the executors for the suppoit of the children of the testator, until the youngost atT tains twenty-o,-e years, or marries, and then the principal to be distributed equally among the^ children, according to the will of the testator. HENRY W. DESAUSSURE. From the above decree, complainants appeal, on the ground, that according to the true construction of the testator’s will, the income of the estiite should be appropriated to ihe children of the last marriage, exclusively', until the youngest child reached maturity or day of marriage. And defendants appeal on the ground of the dower.
12 S.C. Eq. 210Rouse v. Raynal (1837)
Heard before Chancellor Desaussure, Charleston, April Term, 1835. The present case comes up on a rule taken out by a creditor of the late Col. riouse, on the commissioner of this court, to shew cause why certain debts of the late Col. Rouse have not been paid, in conformity to tire order of the court, heretofore made. To this rule the commissioner has made a foil return, staling that he has acted in perfe.ct obedience to the orders of the court. On examining the facts of the case, it does appear to me that the commissioner is not blamed in any way so as to make himself personally liable to the creditors of Col. W. Rouse ; that if they should be losers by the alleged insolvency of Ray nal, the administrator of the personal estate of Col. W. Rouse, it has been by their own laches, in not pursuing their claims, with diligence, establishing their demands, and coercing payment before such insolvency. The creditors may have redress against the sureties of the administrator, if he is really insolvent. But there is no ground to make the commissioner personally liable.- The rule must, therefore, be discharged. I would not, however, be understood as deciding the case in such a manner as to preclude the creditors of William Rouse, to file a bill against the administrator of Rouse, and the commissioner, to have a full account of the funds of the estate, and of their application. All that is meant to be decided on this rule, is, that there does not appear, by the return of the commissioner to the rule, that he is personally liable for his acts done in pursuance pf the orders of the court. HENRY W. DESAUSSURE. From this decree, an appeal is now made, on the ground, that the return of the commissioner was entirely insufficient, and that, fpr' the following, among other reasons, the rule ought to be made absolute. 1. Because the commissioner in equity, himself, reports these very debts as bond debts rendered to the administrator within the year, and he, therefore, by his own showing, was bound to provide for them. 2. That the very fact that there were suits pending, of which he states he had notice, ought to have put the commissioner on his guard, and shows clearly that he might have ascertained with the most perfect accuracy, the amounts claimed, particularly as the amount of the claims was never a subject of litigation. 3. That by the report of the commissioner of 21st May, 1831, he had made distribution among the heirs, before he ever reported the amount which he had reserved, and has thereby assumed the responsibility, that the fund reserved, was sufficient for the payment of the debts rendered within the year. 4. That it is a case of the officer of this court, administering a fund, which he is bound to do legally, and is personally responsible for his maladministration. 6. That having postponed claims of a higher degree, in preference to claims of a lower grade, viz : having paid heirs before creditors, he is liable to the extent of the funda so improperly disposed of. HENRY GRIMKE, for Appellant.
12 S.C. Eq. 213Dutart v. Cox (1837)
Heard before Chancellor Desavssuke, Charleston, May Tern). ,1836. The bill was filed to enjoin the collection of two promissory notes given by the complainants to the defendant Cox, and by him passed away to the defendant Frazer, with a full knowledge of the equity stated, and without consideration.
12 S.C. Eq. 215Lane v. Roche (1837)
This cause came up, originally, before Chancellor HaRI’ek, upon demurrer and exceptions ; and for the proper understanding of the decree, it is deemed unnecessary to copy any other than the eleventh exception, which is as follows : “ Because said defendant hath not set forth, whether said credits and claims, as stated in said bill ofcomplainant, are correct or incorrect ; nor to what extent, correct or incorrect; nor whether defendant hath in his possession, the books and vouchers of said complainant, as set forth in said bill, as well as defendant’s own books of account, during the continuance of said complainant in the said business, nor the amount, or probable amount, of said business, during thatjperiod ; nor whether said defendant is willing to produce his said books of account, so as to enable said complainant to ascertain the sum due to him by said defendant j nor whether any of said hooks of accounts, or vouchers, have been destroyed, injured, or altered, by said defendant, as apprehended by said complainant; nor whether the said defendant is still proceeding with his suit-at law against said complainant, for styd pretended balance, so set up against said complainant.” The following decree was pronounced by Chancellor H'Aitrnii ¡ Tlie first ground of demurrer makes the question, whether it is' sufficiently charged by the bill, that a partnership was actually formed, by a parol contract, between the complainant and defendants or only an agreement for a future partnership, which was never carried into execution, if only the latter, it is clear that the re. medy of the complainant is at law, to recover damages for the refusal to carry the agreement into execution. From the argumeutive and indirect manner of the bill, it is somewhat difficult to say, with precision, what is, or what is not, charged. But from the best view which 1 can take of it, it seems to mo that the actual execution of a partnership agreement is not charged. The bill states, that defendant induced the brother of complainant, to persuade him to the formation of a copartnership with him.” That it was understood by all parties, to be an agreement to unite in business,! for the space of three years, &c. This might seem equivocal, but the bill goes on to state, that on complainant’s arrival in Charleston, defendant assured him that every thing should be arranged to his satisfaction, as he would find by the articles of agreement,which should be immediately drawn up. This shews, clearly, that both parties contemplated written articles to the formation of the partnership. The bill goes on to speak of complainant’s dissatisfaction at the delay in preparing the articles ; and when, at last, they were presented to him, postponing the commencement of the partnership for six months, and providing for the employing of complainant, as foreman, in the meantime, complainaut states, that he determined to return to New York, but was dissuaded by defendant’s agent, who said he believed that full justice would be done by defendant, on his return ; and complainant accordingly entered on the business, and continued to discharge it until defendant’s return,- This, I can only interpret as an acquiescence on the part of complainant to go on, not regarding himself as a partner, but taking the risk of defendant's consenting, on his return,to reform the articles according to what complainant believed the true understanding of them. All this is unmeaning, if a partner, ship agreement were already executed. For these reasons, I think tlie demurrer, on this ground, must be sustained. With respect to second cause of demurrer, to so much of the bill as seeks to render the defendant liable for services rendered, it struck me at first, that as complainant’s compensation for services, as foreman, were to be one third of the net profits of the concern, he might have a right to an account, for the purpose of ascertaining, those profits, and relief, upon that account, But the articles, providing for this compensation, were never executed, he refused to-execute them, and stated explicitly, that there never was any agree-ment to employ him, as foreman. If he, therefore, rendered any services in that character, he can only claim compensation for them on the footing of a quantum meruit, for which, the remedy is at law. The demurrer must, therefore, be sustained on both grounds. The defendant, in his answer, submits, that all the matters con--taiued in the bill, may be determined at law, aud prays that he may have the same benefit, as if he had demurred to the whole bill. But such is not the rule of equity ; there may be a demurrer to one patt of a bill, and an answer to another part; but so far as the defendant undertakes to answer, he must answer fully. In the case of North vs. Strafford, 3d Pr." Wms., there was a demurrer to so much of the bill as prayed for relief, which was sustained on the ground, that the remedy was at law ; but so far as concerned discovery, the chancellor said the plaintiff was at liberty to except, if he thought the defendant had not fully answered any part. That case is the same with this ; and if the .present defendant has failed to answer, fully, any material part of the bill, which is not demurred to, the exception to the answer must be sustained. This brings me to examine the complainant’s exceptions. The four first may be considered together, as they relate to the same matter: — the setting forth the terms on which it was agreed to form the partnership. It seems to me that the answer is defec. five in this respect. The bill charges certain specific terms on which it was agreed to form the partnership. There is no distinct answer to this ; but defendant states, that the details had not been agreed on, and that the written articles contain the only stipulations to which the defendant would agree, or ever intended to agree. This seems evasive, and the exceptions are, therefore, sustained. With respect to the fifth exception, though mention is made in the bill of complainant’s letters, nothing specific is charged of their contents, nor is the defendant called upon to produce them. So much of the exception is, therefore, overruled. There is a specific charge, however, that defendant, by one of his letters, represented the profits of his business to be fourteen thousand five hundred do!Jars, and though, perhaps, not very material, yet I suppose the complainant is entitled to an answer. So much of the exception is sustained. The sixth exception is frivolous, and is overruled • and, indeed, of all the exceptions, it may be said, that from their verbose, diffuse, and inartificial manner, it is very difficult to see their precise object, or to decide upon them. All the rest, except the last, seem to relate to immaterial matters, or to be sufficiently answered, or to relate to matters involved in those already decided. With respect to matters of the eleventh and last exception, the answer seems clearly to be defective, and that exception, therefore, sustained. WILLIAM HARPER. After this decree was rendered, a further answer was filed by de. fendant on 30th May, 1836, in which he stated that he had agreed with the complainant, that, if after a trial of six months, he approved his conduct, he would take him into business, under the restrictions set forth in the written articles, and that these written articles contain the whole, and only mutual understanding. In answer to that part of the bill, which relates to the books, defendant answers that all the books of his shop, during the period complainant worked in his shop, are now in his possession, and he denies, that he has ever had any books or vouchers, belonging to complainant. That the books, specifically mentioned in the bill, are the defendant’s private books, - and that there are no papers, vouchers, or receipts, in-defendant’s possession, belonging to complainant, except two or three receipts, for money paid R. W. Seymour. Defendant de. nies, that he owes complainant any thing for wages. The cause catne on for hearing, before Chancellor D. Johnson, in June, 1836, when the complainant offered evidence to contradict the answer on all the material points ; but the chancellor refused to receive it, and dismissed the bill with costs. From this decree, the defendant gave notice of appeal, upon the' following grounds : 1. That although the demurrers of the defendant were sustained by Chancellor Harper, in bis decree, there were parts of the bill that were not demurred to ; and the bill, itself, not having been dismissed, defendant was required to answer to- the matters contained in the 1st, 2d, 3d, 4th, and 5th, exceptions ; and, also, to the lltlr exception. 2. That the testimony taken by order of Chancellor Desaussüre, and by consent of the defendant’s solicitor, should have been read, to contradict, as it did, defendant’s answer, and amended answer, and relief, should have been granted. 3. That defendant and complainant being at issue upon most of the points to which defendant did answer, the chancellor should have heard complainant’s witnesses, and decided upon the case made. LEWIS CRUGER, Complainants Solicitor.
12 S.C. Eq. 219Davidson & Simpson v. Graves (1836)
Heard before Chancellor Desaussmre, Charleston, January Term, 1834. The bill in this case was filed in June, 1824. Its object was to set aside certain deeds .by Admiral Graves and wife, and the marriage settlement of their son, Samuel C. Graves, as void against the complainants, to whom both the father and son were largely indebted. Admiral. Graves, Baron- Vandersmissen and wife, the trustees of their son’s marriage settlement, Wm. Robertson, trus. tee under a deed of 23d May, 1821, and others of the defendants, answered the bill. It was after due notice, (the bill taken pro-confesso against a number of the defendants, among whom were Sir James R. Colleton and wife,) and a commission was sent to England for the examination of witnesses; and there can be no doubt, Sir James had full knowledge of the suit. It came to trial before Chancellor Thompson, in the Circuit Court, in January term, 1828, who decreed for the complainants, and that the deeds complained of should be set aside. The defendants then appealed from his decree to the Appeal Court, and in the February term, 1828, of the Appeal Court, that court by a very luminous decree, sustained with some modifications, not important to the questions now about to be considered, the Circuit Court, decree. To these decrees in the registry of the court, 1 refer. Baron Vandersmis-sen and his lady, at these trials, were absent from the State, but contended by their counsel, that they were entitled to a lien on the specific lands and negroes that had been set apart to them in 1817, under a deed of 17th June, 1817, reciting an agreement before marriage to secure a marriage portion of £6000, and which deed was recorded in this State, as a marriage settlement, within the time allowed to persons residing beyond seas ; and they also contended that they were entitled to the security of the deed of the 23d of May, 1821. They failed wholly in the Circuit Court, and the Appeal Court determined that the recital in the deed, after marriage, was not evidence of a written agreement before marriage, and sustained so far the decree of the Circuit Court, and directed all the deeds to be set aside as against the complainants ; but as they considered the settlement as recorded in time, and that the debt, though voluntary, was good as against Admiral Graves, but not against creditors, they decided that they were entitled to the security, which they had obtained on the lands which had belonged to Mrs. Graves, and which at the time that the security was given, were not liable for the Admiral’s debts. So soon as this decree was made known to Baron Vandersmissen, in Europe, he immediately wrote to inform his counsel in this country, that the anti-nuptial written contract, recited in the deed of the 17th June, 1817, had been placed by him in the hands of his counsel here, who in 1824, prepared his answer to the complainant’s bill, and that it was then in his hands. That counsel, between the preparing of the answer in 1824» and the trial of the case in 1828, had been raised to the bench. The anti-nuptial contract was in his possession, and under the special circumstances of the case, and on the most satisfactory evidence, the Appeal Court, in February term, 1829, at Charleston, allowed the decree to be so far opened as to receive that anti-nuptial written contract as part of the evidence, after an application for that purpose, had been refused in the Circuit Court; and with this additional evidence, on the principle esta. Wished by the appeal decree, Baron Vandersmissen and lady, were considered entitled to the benefit of their security on the negroes, as well as on the lands, that had been made specifically liable to them in 1817. After these proceedings also were known in Europe, Sir James Roupel Colleton and his lady, against whom the bill had been taken pro. confesso, and who it should seem were well advised of the progress of the case, in May, 1830, filed their petitition for a re-hearing, so far as they were concerned under the statute, which allows four years for parties boyond seas, against whom a decree has been made in a bill taken pro. confesso against them, on the usual notice to come in and claim a re-hearing, and in the order of the 21st May, 1830, on their petition, the case, so far as they are concerned, has now been tried. It is unnecessary to repeat in substance, what already has been so fully and ably stated in the circuit decree of the chancellor, who first tried this case, and in the appeal decree, of 1828. All the evidence which was then produced, has been again laid before the court. Mrs. Sarah Matthews, who appears to have been an inmate of the family of Admiral Graves, in 1819, at the time, or a little before Sir James married lady Colleton, was examined on commission. She proved, that before the marriage, Admiral Graves promised to settle £0000, on his daughter; indeed, that he alleged that this amount was at that time already settled on her by the deed of 25th November, 1815, called the Bristol deed, and she thinks something was written to a lawyer on the subject, but she does not say what it was. To her examination is attached the copies of two letters of Admi. ral Graves to Mr. Davidson, one of the defendants, taken by her from the original furnished to her by Sir James. Sir James and lady Colleton, were married at the Hague, on the 12th December, 1819. On the 20th May, 1820, Admiral Graves executed a bond to Sir James, in which he promised to secure a portion of £6000, to lady Colleton, and refers to the Bristol deed, as securing to her that amount; and on the 3d of November, of the same year, 1820, hejand Mrs. Graves, executed another bond for that sum. The answer of Sir James and lady Colleton, allege the promise of Admiral Graves to secure this fortune, but they do not pretend that any memorandum, in writing, of their promise, was given prior to the marriage ; and I think it quite evident that there was no such anti-nuptial written agreement. Sundry letters were produced on both sides, which as they have no special bearing on the opinion, which I have formed in this case, I shall not particularize. On the 23d May, 1621, Admiral and Mrs. Graves conveyed all their ne-groes, as per schedule, to Wm. Robertson, in trust for themselves during their joint lives, and the life of the survivor, and then to Samuel Colleton Graves, absolutely, on his paying £7000, to his sister, Mrs. Radcliffe, and £6000, to each of his sisters, Baroness Vandersmissen, lady Colleton, and Miss Graves, to be paid within one year and a day after the death of the survivor of Admiral and Mrs. Graves, provided, that if the said sisters received from Admiral Graves and wife, or from S. C. Graves, any part of the said sums, the same shall be received in part of this amount; the negroes at Colleton to be specifically subject to these sums, or any obligations which R. Graves and wife may have given for them to the daughters ; the sum of £7000 to Sophia Louisa Radcliffe, being what was before secured to her. On this deed the defendants mainly rely to support their claim. The Bristol deed referred to by Miss Matthews, was revoked by Admiral and Mrs. Graves, on the 10ih of July, 1817, upwards of two years before the marriage of Sir James. She (the witness, Miss Matthews,) was a witness to the deed of revocation, and also to the deed subsequent to that revocation, conveying the Colleton Barony, which had been the foundation of the Bristol deed, to Samuel C. Graves. . It may be observed, that she is a very willing witness to all the questions put to her by the defendants, and answers reluctantly and evasively the cross interrogatories of complainants. She seems to have forgotten entirely the execution of these deeds. The Bristol deed was executed too, at the time when the Admiral was considerably indebted to the complainants, and judgment has been recovered against him on his bond, of ihe 2d May, 1814, conditioned for the payment of six thousand pounds sterling, on which, five thousand pounds of principal, exclusive of interest, still remains unpaid. If the Bristol deed, therefore, had remained unrevoked, on the principles of this court, established in the cases of Izard and Izard, and Price vs. Price and others, it could not be sustained against the complainants. But I am satisfied that this deed was effectually revoked by the deed of 10th July, 1817, and could not, as was contended for by the defendants, in any manner supply the place of a written memorandum before marriage, or anti-nuptial contract. At the former trial of this case, it was strongly urged in favor of Baron Vandersmissen and his lady, the existence of that deed, at the time of their marriage, and at the date, the 17th June, 1817, of the postnuptial contract, reciting an anti-nuptial, was, with the other circumstances, satisfactory evidence of the existence of the previous written agreement, and would sustain the duly recorded settlement. But the majority of the court did not sustain that view, and held that the existence of that deed was not sufficient evidence of a previous written contract. The first case then made for the Baron and his wife, was on this very point, as it appears to me much stronger than that of the present defendants, and yet the court postponed their settlement on all the property of Admirel Graves, to the claims of the creditors. In this case, the deed of 1815, was revoked, more than two years before. the marriage of the defendants, and Miss Matthews, who seem so desirous to sustain their claim, was, as I have stated, a witness to that revocation. The bond of 20lh May, 1820, more than six months after the marriage, refers to no anti-nuptial contract; but then makes a promise, in writing, in the present tense, at a time when there was no reason to anticipate the events that have since occurred, and leading very strongly to the inference that no other promise was given. The engagements of parties, put into writing at the time, are incomparably more to be relied on, than the frailty of memory, after the lapse of a number of years. ■ But in- this case it is not pretended, certainly not proved, that there was any anti-nuptial written contract; and I take it to be the settled law, that a previous written contract is required to maintain a post nuptial contract against existing creditors. It would be a work of pure supererogation to examine this subject, after the full and elaborate investigation which it received from' the Appeal Court at the former trial before it of this case. In that decision I cordially concur, and it appears to me to be conclusive on the claim of the defendants. Their counsel ingeniously and ably endeavored to distinguish their case from that first made by Vandersmissen, and insisted that Admiral Graves was bound, both in honor and in honesty, to give the bond of May, 1821, and that as he was bound to give the bond, he had a right to secure it, and he did secure it by the deed of the 23d May, 1821. Now this is assuming the very point at issue. It may be admitted that the Admiral was bound, in-honor, to give this bond. It is admitted to be good against him, but It is void as against his creditors, it is, in other words, a voluntary bond, and must be postponed to the complainants. I do not see how the bond in this case, can be distinguished from the contract with Vandersmissen, except that the contract was, and the bond was not, recorded in timé. The contract was under seal, as well as the bond. It was, in all respects, as high an obligation. It had been executed during the existence of the Bristol deed, and yet the court postponed it to the creditors. The deed of 23d May, 1821, cannot assist the claim of the defendants. That deed was executed between Admiral Graves and wife, Samuel C. ■ Graves, and Mr. Robertson, as trustee. It provided, as- has been stated, for a life estate in the negroes, to Admiral Graves and wife, and the survivor of them, with a remainder over to their son, on his paying their daughters’ portion. The defendants were not, otherwise, parties to this deed. Now it is manifest, that if the bond is' supposed to be secured by this deed, and the bond was voluntary, and must be postponed, the deed cannot give it' a preference, and if, as was strenuously contended, the deed provided for a different debt, a portion to a daughter, subject to legal rules, essentially different from those that govern the bond, then it is equally voluntary. It is obligatory, certainly, on Admiral Graves, and on all claiming under him, but it is void as against the complainants. Besides, it was urged by the complainants, that the deed is void for reserving the life estate, to the grantors. That Admiral Graves, and the representatives of Samuel C. Graves, and William Robertson, the trustee, who represented all the parties, wore before the court in 1828, and the deed was declared void, as against the complainants. That it did not protect Vandersmissen’s marriage contract, which had higher equities than that of these defendants, and that the bond of May, 1820, could not be connected with this deed. Were this a doubtful case, those views might be entitled to much consideration ; but they do not seem to me necessary, to enable the mind to come to a satisfactory conclusion. Sir James and Lady Colleton, and their witness, Miss Matthews, insist, that this claim is for a marriage portion. Their counsel seemed, sometimes, to consider it as a debt, and sometimes as a marriage portion. There is no doubt that the bonds were given for a marriage portion, and the' deed of May, 1821, intended to secure such a portion. Now, as a marriage settlement, it is admitted that these deeds were not duly recorded ; that is, that they were not recorded within the time required by law. To escape from the consequences of this omission, the counsel were driven to the necessity of contending that our marriage settlement acts were not intended for the protection of foreign creditors. This is a novel doctrine. It would indeed be strange, and reflect little honor on the jurisprudence of the country, if such a doctrine could be maintained. There is nothing in the acts to countenance it; on the contrary, the special provision that contracts in consideration of marriage, executed beyond the seas, shall be recorded here within twelve months, or they are void as against creditors, that is to say, void as within this State, as regards all the property affected by them in this State, shows, conclusively, that it never was the intention of our legislature to make any distinction between the foreign and the resident creditor; and they are, assuredly, equally entitled to the benefit of this law. It follows, therefore, that this marriage contract, even though it had been executed before marriage, or had been founded on a written anti-nuptial contract, not having been recorded in time, is void as against the complainants. On the whole, it is to my mind very clear, that the claim of the defendants must be postponed to that of the creditors. It is, therefore, ordered and decreed, that the orders and decrees of this court, and of the Court of Appeals, made at the former hearing of this case, when the bill was taken, pro confesso, against the defendants, be, and they are hereby, now confirmed against them. Thart the claim of the defendants be postponed to the claims of the creditors, and that these defendanrs do pay the costs of this suit, from the time of the filing of their petition for a re-hearing. HENRY W. DESAUSSURE. The defendant, Sir Jamos R. Colleton, now appeals upon the ground, that the testimony in the cause proved a deliberate intention on the part of Admiral Graves, to deceive and defraud Sir James and his lady. That they had, therefore, as the plot sue-ceeded, a good cause of action against him, and could have recovered against him, in an action at law, exemplary damages for the injury done to them. That the two instruments, executed by him in May and November, 1820, were not, therefore, voluntary deeds, but were fouuded upon valuable consideration, to wit, the fraud committed ; that they were not marriage settlements, marriage not being, in any manner the consideration ; that as obligations given in satisfaction of a debt, they did not require to be recorded, any more than any other bond, for a tort or trespass ; that the deed of Admiral Graves, and Louisa C. Graves, to Samuel Colleton Graves, of May, 1821, was not, therefore, voluntary, as far as Sir James and his lady were concerned, and must be sustained as between them and Simpson and Davidson; that whatever right Simpson and Davidson had to set aside that deed, as against other persons therein provided for, they had no claim, either in law or equity, to sot it aside, as to Sir James and his lady. LEGARE & EGLESTON, for Appellants.
12 S.C. Eq. 232Simpson & Davidson v. Graves (1828)
This is an appeal from a decree of Chancellor Thompson. The complainants are British creditors of Admiral Graves, and his son, Samuel Colleton Graves. They have obtained judgments against them here, and the object of the bill is to set aside certain deeds which have been made by Admiral Graves, and his son, as being fraudulent and void, as against their creditors. The case is encumbered With a long catalogue of deeds, which, though calculated to give a full developemenf of all the transactions between the patties, are not at all necessary to the decision of the questions now submitted to this court. The three following, are the leading questions now submitted to our consideration: 1st. Whether the deed, by which Admiral Graves and wife; transferred all their lands in South Carolina, being what is-called the Devil’s Elbow Barony, consisting of six thousand acres, to their son, Samuel C. Graves, is void, as against his creditors, being voluntary, and without consideration. 2d. Whether a deed afterwards made by S. C. Graves, proi fessing to be a marriage settlement, by which be transferred th.er same Barony, together with all the rest of tlio property in this State, belonging either to himself, or his father, to trustees, for the benefit of himself and has intended wife, and their issue, shall be const, dered as á marriage settlement; and if so, whether the marriage was such a consideration as to protect the property against the claims of his then existing creditors. 3. W liether the marriago contract with Vandersmissen, who married the daughter of Admiral Graves, is under all the eircum-stances, such as to give it a priority over the claim of the complainants, and to what extent ? There are other questions growing out of those which will be considered in the course of this investigation¿ With regard to tbe first question, it is admitted that the deed to S. C. Graves, was voluntary and without consideration, or if for any consideration it was of such a nature as not essentially to affect the question. But the ground on which the complainants bill is resisted, ie4 that it does not appear that Admiral Graves was insolvent at that time, pr that he became so, in consequence of his having disposed of bis A merican estate.
12 S.C. Eq. 246Davidson & Simpson v. Graves (1831)
12 S.C. Eq. 247Ferril v. Talbot (1837)
12 S.C. Eq. 271Ramsay v. Richardson (1837)
Heard before Chancellor Desaussuhh, Charleston, May Termy 1835. DECREE. — This case was heard and argued a considerable time ago, and I have endeavored, anxiously, to make up my judgment on the points in controversy, be five on the parties.
12 S.C. Eq. 282Purcell v. Purcell (1837)
Heard before Chancellor J. Johnston, at Charleston, January Term, 1S35. DECREE_This case has been submitted upon written arguments. The whole case will be best collected from the pleadings, exhibits, and papers therein referred to, and from facts stated in the written arguments. There can be no question, that by the deed of August 22d, 1795, Mr. Blake divested himself of all power and control over the property carried by it, until, for want of operation in the deed, the property should revert. The will executed three days afterwards, could not operate upon the property, then no longer his. 'It would be very extraordinary if he could explain, bv will, an instrument already operating. What he had written he had written, and it must operate according to its words. He could not recall, modify, or explain, a single expression. If the will could ever operate, the only contingency upon which it could operate, never happened. Besides, the codicil controls the body of the will, and expresses tiie same intention expressed in the deed. By the deed, Mr. Blake conveys, in trust for his daughter, Mrs. Purcell, duri¡ g her life, then to her husband for lile, then to such of hei issue as should be living at her death, and shall attain majority, or marry, as tenants' in common. By the pleadi igs, it appears Mrs. Purcell outlived her husband, and died in 1834, leaving issue liying at her dead), as follows: the plaintiff, (one of her sons,) who has attained full age; .and three minor and unmarried children of her other son, and only other child, (James S. Purcell,) who, although he came of age, was not living at her death. It is stated, in the argument, that the plaintiff has also two children, “issue” of Mrs. Purcell, but whether they were born during their grandmother’s life, so as to be living at her death, is not Stated explicitly. Besides, we must be governed by the pleadings. The persons described in the deed must all take : none others can take. issue, unless restrained by expressions shewing a different intent, includes ail lineal descendants 1 Can there be a doubt of ill is ? The only restriction expressed in the deed, is first, to such as ,should he living at Mrs. Purcell’s death. This cuts out mes S. Purcell, and substitutes his children. The eveut prove-- -bathe never had an interest under the deed. His children, lit1-,g <u their grandmother’s death, took for themselves, and not through him, as representatives of him. On the other hand, Edward M. Purcell, the plaintiff, took at his mother death, and never before. If his children were then bom and living, they also took as issue. They were -as much issue of Mrs. Purcell, as he was. The second restriction upon the issue, is, tiiat they must attain majority, or marry. This, James S. Purcell’s children, from the statement in the pleadings, of the times of their births, have not done. It is probable, that the plaintiff’s children, if at all entitled, have not. If all the children aie under age, and unmarried, the only difference between their cases, and thai of the plaintiff, is this : his has become a vested right; theirs is yet contingent, and cannot be definitely arranged, till they all attain age, or marry, or die minors, or un, married. All the issuo who survived Mrs. Purcell, took at her death, per capita, an apparent right to the property. As auy of them attained age, or married, an aliquot share might have been declared his ; leaving the rest to be set apart afterwards. If any died in infancy and unmarried, its share would go to the survivors, when their rights should become perfect. Under this view, I would now declare the plaintiff’s rights, if I knew, from amending the pleadings, whether his children were born before Mrs. Purcell’s death ; and then I could order partition, appointing a trustee for -the shares of all th >se yet infants, and unmarried; reserving the right to make sub-partitions according to future circumstances. As it is, i can only express my opinion; leaving the parlies to amend and apply for orders according to the real stale of facts. It may he forwarding the business, to order the commissioner to en. quire and report, whether it will be far the interest of the minors to sell the land in Abbeville, and upon what terms ; also to report a suitable trustee as above suggested, and the form of an order ap. pointing him, and expressing the trusts ; and it is ordered ac™ eordingly, J. JOHNSTON. Complainant appeals, and hopes the decree may be reversed, on one of the two following grounds : 1. That complainant, as the only surviving child of his mother, Sarah B. Purcell, living at the time of her death, is entitled, whether under the deed, or the will, to the whole of the trust estate of the said Edward Blake. 2. That if the court should think otherwise, on the first ground, the chancellor should have decreed to the complainant the moiety of the estate included in the deed and will of Air. Blake.