Volume 2 — South Carolina Equity Reports

THIS was a bill filed by the attorney-general against Edward Penman, to recover the amount of a bond dated 17 February, 1790, executed by Isaac Huger, Thomas Washington, Jacob Weed, Alexander Inglis, Alexander M’Gillivary, William Clay Snipes, and Edward Penman, to Alexander Moultrie, conditioned for the payment of 21310/. 4s. id. in general indents of this state.

<p>THE complainants bill states, that Daniel Heyward, being seized and possessed of a considerable real and personal estate, duly made his will, dated 7th June, 1776, and thereby devised to his son Thomas, and in trust for the testator’s wife, (in lieu of dower) during life, his plantation called Rose Hill, together with all the slaves, stock, and plantation utensils thereto belonging, and at her death, he gave the same to his youngest child that should attain the age of 21 years, and his or her lawful issue. That said plantation, slaves, &c. were, by virtue of said will, in the possession of said widow, until her death in the spring of 178.8.</p> <p>Testator also devised and bequeathed to his wife, for life, his house and lot in Charleston, with furniture, servants, &c. and at her death, to his next youngest child, who should attain 21 years of age, and to the lawful issue.</p> <p>That testator also bequeathed as follows, “ I will to my “ sons Thomas and William, in trust for the use of my “ daughter Elizabeth, during her natural life, the follow-u ing lands, slaves, stock, See. thereon, and appurtenances “ thereunto belonging; and at her death, I give the land “ to the male heir of her body lawfully begotten, when he. « shall attain to the age of 21 years, and for want of such, “ to the eldest female that shall attain to that age, or her il lawful issue, if she should leave such before she attains <c that age, and the slaves, &c. to be divided between the ° % ^ “ heirs as above mentioned; and in case of no such heirs, “ then I give the land and slaves to my youngest child “ that shall attain to the age of 21 years, viz :■ — my plan- “ tation or tract of land, on Portroyal Island, containing “ 526 acres ; two tracts of land, originally granted to John u Linder, near O’Ketty creek — one containing 450, and “ the other 150 acres — one negro lad Scipio,the carpenter, “ and one girl Eliza.”</p> <p>The testator also devised the remainder of his estate, real and personal, to his sons James and Nathaniel, to be divided between them. And he also gave his executors full power to act, do with, and dispose of the yearly product of his estate, for the benefit of his heirs, mentioned in his will.</p> <p>That the testator died some time about the 11th of Oct. 1777, leaving said will in force, (except as the same is altered by two codicils, neither of which relate to the said devises) ; and did nominate his sons Thomas, Daniel, and William, and Mr. Keating Simons, as executors.-— That Thomas and William only qualified.</p> <p>That defendant Thomas Heyward, took upon himself the execution of said will, and possessed himself of all the testators estate, and particularly that part given to his daughter Elizabeth, and also after the death of the widow, of that given to her for life.</p> <p>That said Elizabeth Heyward died some time in the year 1780, without issue, and never having attained 21.</p> <p>That Benjamin, the youngest child of said testator, also died some time in Sept. 1796, under 21, and without issue. That by the death of said Elizabeth and Benjamin, complainant Maria, (being the youngest child, who has attained 21,) is entitled to said Rose-Hill plantation, slaves, See. and to the plantations, stock, slaves, &c. left to said Elizabeth, and to the crops, profits, and emoluments^, since they came in possession of defendant.</p> <p>That at the death of testator, there wore on Portroya! plantation, besides cattle-, hogs, and sheep, 53 negroes, named in the bill, as appears by the inventory. On Rose-rotation, ^cre were also at the death of testator, exclusive of cattle, hogs, and sheep, forty-one negroes also named, as appears by the inventory.</p> <p>Complainant William saitb, that he hath married the complainant Maria, whereby in right of his wife, he became entitled to said devised property.</p> <p>That complainants applied to defendant for an account of the crops, profits, and emoluments arising from the cultivation of said plantations, and from the labor of the slaves, and for an account of the ¡application thereof, and for payment of the balance, and for an assignment of such part as consists in securities.</p> <p>The bill charges that complainants are entitled to said crops. That said crops never belonged to said Benjamin, and could not be. spent for his use, as he never arrived at the age of 21, and the estate could not therefore vest in him. That the fund arising from the Callewashie plantation, specifically devised to said Benjamin, was the proper one for his support.</p> <p>.That the accounts of the funds claimed, ought to have been kept separate from the property of said Benjamin, as they were the property of complainant Maria, or of her brothers, as Benjamin could not have been the devisee contemplated, not being in existence when the will was made; but even if the negroes have worked together, it cannot be difficult to ascertain the relative proportions. The bill further charges that considerable crops have been made on these estates, to which complainants are entitled, and for which the défendant ought to account.</p> <p>That though defendant in a letter of .the 24th December, T/96, admitted the right of complainants to the estates in question, he has since refused to give them possession,,</p> <p>The bill charges, that defendant has never rendered any account in the ordinary’s office, though by law he is bound to do it annually.</p> <p>That on Cole’s Island, belonging to the estate of said teatator, there were about thirty negroes ; that neither Coles’s Island nor. the negroes thereon, are mentioned in said will, nor do complainants know to whom they belonged. That for some particular reasons, said land and negroes were conveyed in trust, and were in case of Benjamin’s death, to be divided among the testator’s children; but whether among the whole, or among part only, complainants cannot say. That defendant has, since the death of Benjamin and James Heyward, divided said land and negroes among the children of his brother William Heyr Ward, deceased, Nathaniel Heyward, and himself, and utterly excluded complainants.</p> <p>The bill charges, that complainants are entitled to an equal proportion of said land and negroes.</p> <p>The bill prays that defendant may account for all the crops which have been made on Portroyal plantation, as also on Cole’s Island, since testator’s death, and for all the crops on Rose-Hill place, since the death of the widow.</p> <p>That he may pay interest on the monies ^arising from such crops and labor) which have come to his hands, or received for his use, and that he may pay complainants what shall appear to be due.</p> <p>That he may discover under what trust Cole’s Island, and the negroes thereon were held, and produce the trust deed; and should complainants be entitled to any part thereof, that he may be directed to put the same in their possession.</p> <p>That complainants may be let into possession of the real estate, negroes and personal property, which they (in right of complainant Maria, as the youngest child, who has arrived at 21) are entitled to --and for general relief.</p> <p>The defendant, in his answer, admitted that his father Mr. Daniel Heyward, made, and duly executed the will set forth in part by the complainants, and departed this *ea^nS same *n full force, except so far as the same was modified by a codicil, executed afterwards, wherein and whereby he provides for a child, with whom his wife was then pregnant, who was bom after the execu-ti°n of the said codicil, and being a son, was named Benjamin. After the birth of Benjamin, the testator added another codicil to his wili, by which he devised the Cal-lewashie estate to Benjamin, and his heirs, but if he died under age, See. it was devised over to testator’s grand-son,. Daniel Heyward.</p> <p>The defendant admits, that at.the death of the testator, in the year 1777, Elizabeth and Benjamin were his two youngest children, and that Elizabeth died in the year 1780, under age, unmarried, and without issue. That the widow of the testator died in 1788, and Benjamin died in the month af September, 1796, underage, unmarried, and without issue, and that the complainants thereupon became entitled under the will of the testator, to the Rose Hill and Portroyal estates; the complainant, Maria, being the youngest child of the testator, who had attained : 21 years of age.</p> <p>The defendant denies the right of the complainants to the crops and emoluments of those estates, till the death of Benjamin, the youngest child, in the year 1796. For as ha answered the description of the youngest child, he had the best right to them, until his death.</p> <p>The defendant states, that with respect to Cole’s Island, it was devised by the testator, in the codicil to his will, to his son Daniel. But he also executed a deed, conveying Cole’s Island to trustees, in trust for testator’s son Benjamin, in case he lived ; but if he died, the same should go according to the codicil. The defendant submits that upon the death of Benjamin, under age, and without issue, the deed was cancelled, and that Cole’s Island went according to the directions of the codicil, to the said Daniel. But he being- dead, without issue, before the abolition of the rights of primogeniture. Cole’s Island became the pro-U -i’Olt h bk William pertyoihb two brothers, of the and the defendant Thomas. But tin.!. if the deed should be considerd valid and operative, the propeity would divisible among Benjamin’s legal representatives.</p> <p>The defendant requests of the court that the complainant William Brailsford may be required to make a settlement of the estates of Rose Hill and Portrayal, on his wife Maria and her children.</p> <p>The testator devised to his sons James and Nathaniel, the remander of his estate, real and personal, to be divided between them. And he gave his executors, “full power to act, do with, and dispose of the yearly product of his estate, for the benefit of his heirs abovementioned.”</p> <p>The right of the complainants to the property is not questioned. The answer admits their right. But the intermediate profits, from-the death of the testator to the death of the son Benjamin, under age, when the estates vested in the complainant Maria, are denied to belong to the complainants. '</p> <p>It is admitted that this depends upon the intention of the testator, and that if that intention is not clear, to pass the profits, they must go to the residuary devisees and legatees, or to the heir at law. But the intention is clear in this case, that the intermediate profits should go to the person who should ultimately answer the description of the youngest child who should attain 21 years of age, and be thus entitled to the estate itself.</p> <p>It is manifest that the testator meant to dispose of his whole estate, for he says, “ as to all my worldly estate,” I give, &c. See Cowper, 356. The devise is to trustees for his wife; and at her death, to the.youngest child, who should attain 21 years. This is a contingent remainder, in the hands of the trustees, of a trust estate, co-extensive with the objects of the devise. The devise to the executors in trust docs not contain words of inheritance to them. But as it was to support an inheritable estate, it must .be co-extensive, to answer the purposes oi the creation of the trust. ' The trust goes with tut estate, however worded, tili contingency happened, on which it was to determine, court would even add words to make the trust coextensive with the estate. A trust may be in fee without the word heirs, or other words of inheritance. See 2 Stra. 798. 3 Burr. 1684. Even if a trustee be not named, the heir would be made a trustee by the court, to give effect to the intention.</p> <p>But if it were not so, there was such a devise to the executors, as gave them at least a life estate; and the executor, Thomas HeyWard, surviving the contingency, kept up the trust, till the estate vested in Maria Heyward, on the happening of the contingency. That this was a contingent remainder is clear. See Fearne on remain, p. 3, 5th edition. See also, p. 230, 4th edition. The rule is, that the devise cannot be construed to be an execu-tory devise, if it can'take effect, as a contingent remainder. See Fonb. 97. In this case the free-held having vested in the trustee, it has taken effect as a contingent remainder.</p> <p>The youth of the children, intended to be provided for, seems to have required that the trustee should take the legal estate for life, or until the contingency happened, when the estate was to vest.</p> <p>The estate did not vest in the son and devisee, Benjamin ; for when the remainder is limited to a person not ascertained, it cannot vest. See Fearne 458, 5t.h edition, and 467, 9. The estate was contingent, till it should be ascertained whether Benjamin should attain 21 years of age. He did not attain it, and the estate never vested in him.</p> <p>The whole interest was transferred to the trustee, for the benefit of the person who should be entitled to take the estate. The produce therefore must follow it.</p> <p>If the profits be not given to the youngest child, who attained 21 years, the v/iil of the testator will be defeated;for they were the peculiar objects of the concern of the testator in the devises under consideration. The .residuary devisees and legatees were not at all in view. They were abundantly provided for in the will, and the residuary clause in their favor, was to carry > any small undis-posed parts of testators estate, but not such a very large portion of the estate as this. '</p> <p>The last clause in the testator’s will authorising the executors to dispose of the profits of the estate for the benefit of the devisees, shews the intc.nt, that tlje intermediate profits should be. improved for the benefifiof the de-visees, ultimately entitled to take under the-- will. The hceredes facti, were intended to be benefitted, and not the heir at law, or the residuary devisees and legatees. It is true there is no express devise of the profits to them; but. that is not .necessary. If .used, it would have been only evidence of intention to give, and when the intention can be collected without express words of bequest, it will take effect. It was so determined in the case of John Drayton and others, vs. the executors of Drayton, decided in this court* in which the intention of the testator- was collected from circumstances, and did not require ■ words of gift. So in Smith and Motte vs. Smith and others, determined in this court.</p> <p>There is a defference between the real and personal estate, and complainants will be entitled, at all events to the profits at least of the personal estate, in case it be decided, that there was no disposition of them by the will. See 3 P. Wm’s. 300 note, Studholme vs. Hodson. •</p> <p>It is agreed that the intention of the testator must prevail ; but it is to be collected from the expressions on the face of the will, or from the circumstances at the time of making the will; not from subsequent events. It is also agreed, that where an estate is given, and a charge is made on it, the court will presume an intention to give a fee to the devisee so charged, though there be no direct and express words giving afee.</p> <p>Bui there is no appearance of intention in the will under consideration, to give the intermediate rents and profits to the complainant Maria. Examine all the clauses, and no such intent is discernible.</p> <p>It has been labored to shew that the court will enlarge trust estaíeit0 supportthe remainders. Allowthis,but it does not decide any thing on the point now discussing ; for it does not follow that the court will enlarge the estate tobe supported.</p> <p>As to supplying defective words and provisions, the court will be cautious of exercising such a high act of power. The defect must be apparent, and the intention plain. See 2 Bla. Rep. 1159. 3 Burr. 1626.</p> <p>If the testator did not provide for the disposition of the rents and profits, on the death of the youngest child, before attaining 21 years of age, this court will not presume an-intent and supply the defect, without clear evidence of such intent. Now there is no such evidence in this case ; the court will therefore permit the profits to- go where the law would carry them, to the residuary legatees, or to the heir at law.</p> <p>On the death of the testator’s widow, to whom the estate in question was given for life, there was no person entitled to take the estate — none of the younger children had attained 21 years of age — the estate then could not vest. — > Could the profits then pass ? Certainly not.</p> <p>When did Mrs. Brailsford’s right to the estate accrue and’ vest ? On her becoming the youngest child (by the death of others,) and on her attaining 21 years of age. Until the estate vested in her, she had no right to the rents and profits.</p> <p>If implication be resorted to, in whose favor would the court raise it ? ' Surely in favor of the youngest child Benjamin, who had the potential propinqua, and not of Mrs. Brailsford, who had, only potentia remotisshna — for she ■was the third youngest child at the death of testator; and richly provided for by direct devises to her. She has by accident become the youngest child, who has attained 21 years of age ; and in that character takes most of the estates devised to. Elizabeth and Benjamin,- Shall she also have a presumed-intention, a voluntary implication raised for her, to give her the intermediate rents and profits, and place her abovdyll the children i It would not be reasonable t.o An on C' ■’</p> <p>. Benjamin lived to nearly the ágél.of 21'years. He •surely,'whilst he answered the description of youngest child, wasbetter entitled to the rents and profits than Mrs. Brailsford. It was necessary for his subsistence and education — for though he bad another estate devised to him, that also was limited over ; and the remainder man claims the rents and profits of that estate also : so that Benjamin might have perished in the midst of abundance.</p> <p>It has been contended that this is a case of contingent remainder ; but we insist that it is an executory devise.-— It .comes precisely within the definition of ah executory devise. The particular estate on which it was grafted' was determined by the death of the widow, before the youngest child attained 21 years; consequently before the estate could vest — there was nothing to support the remainder — it must be considered an executory devise; and if not vested, what could give a right to the rents and profits to the ultimate devisee.</p> <p>It was argued that the clause in the will, directing the executors to make use of the rents and profits for the be* nefit of the heirs mentioned in the will, furnishes evidence of the testator’s intention, that the rents should accumulate in this instance, for the benefit of the ultimate devi-sees. But the clause will not support this exposition. It is simply a power to the executors to improve the income of the estate, for the benefit of those.respectively interested, according to their several interests. It is nothing more.</p> <p>We must then enquire how the law disposes of the rents and profits, not disposed of by the testator, of an estate which is contingent, and cannot vest for many years. And it is insisted that the rents and-profits so undisposed of, descend to the heir at law. See 1 Vescy, senr. 268, 9. Hopkins vs. Hopkins. 1 Atk. 598. 2 P. Wms. 471, Pap ilion vs. Voice. Cases Temp. T'albot. 44, 51. In the case of Bullock vs. Stones, 2 Vesey, senr. 521, 2, it was decided that where there was a devise of real and per-estate, to the first son of A. when he shall attain 21 years of age, this was a good executory devise of the real estate ; but that the mesne profits descend to the heir at law' — 'the profits of the personal estate accumulate. See also the cases of Garrick vs. Erring-ton, 2 P. Wms. 361, 2, 3,4. Also Carter vs. Barnardistone, 1 P. Wms. 505. Harris vs. Barns, 4 Burr, 2157. Gore vs. Gore, 2 P. Wms. 28. Heyward vs. Stillingfleet, 1 Atk. 422.</p> <p>Where there is even a preceding estate limited, with an executory devise over of the real estates, the intermediate profits (between the determination of the first estate, and the vesting of the limitation over) will go to the heir at law, if not otherwise disposed of. Fearne on devises. 434, 512. 1 Atk. 581.</p> <p>Where a testator devised his real and personal estate to trustees, and willed that the first son of A. should have the estate when he attained 21 years, and his heirs ; and that he should be well educated : A. had no son at testator’s death. Lord Chancellor Hardwieke decided that the intermediate rents and profits of the real estate, belonged to the testator’s heir at law ; but that the heir’s interest would determine on the birth of A’s son; because the education of that son was -to be paid for out of the rents. Fearne on devises, 4'35, 513.</p> <p>It is obvious then, that if the provision for the application of the rents to the special purpose of education, which amounted to a disposal of them, had not been made, the mesne profits would have gone to' the heir. There is no-such disposition of them in the case under discussion.</p> <p>These cases go very strongly to shew that the mesne profits of real estate, go in such cases to the heir at law, or residuary devisee. But it was contended that the rule was different as to the personal estate, the interest of which would accumulate for the benefit of the person ultimately entitled. There is doubtless a distinction in general cases — but the personal estate is so blended with the real this .case;- the negro slaves'are so essential to the produc-tivene.ss of the real estate, that it is -impossible to separate them; and the whole mesneprofrts'must go, Recording to the rule as to real estate. But in fact, the residuary clause in the will under consideration, puts an end to all these difficulties — for that clause carries with it all the property, real and personal of the testator, not otherwise well disposed of. See Fearne 515, 516, 517. Cases Temp. Talbot, 228, 145. 1 Vesey, senr. 485,490, 1. 2 Vesey, senr. 122, 3.</p> <p>It seems quite settled that the interest of a contingent legacy, between the death of tenant for life, and the contingency happening, falls Into the residuum, and goes to the residuary devisees and legatees. See 2 P. Wms. 330, 489 ; also, 2 Atk. 473, Green vs. Ekins. 3 Bro. C. C. 58, Wyndham vs. Wyndham; 4 Bro. C. C. 144, 152, Shaw vs. Cunliffe ; 3 Atk. 101, Heath vs. Perry.</p> <p>With respect to the settlement, which the defendant, the brother of Mrs. Brailsford, requires to be made, there can be no doubt that the court will order it to be made.' It is the course of the court, whenever a wife becomes entitled to new property, to require a new settlement, in whole or in part, according to the circumstances. And there is no reason for departing from that course in this case. See 2 P..Wms. 202, 639 ; 1 Fonbl. 88 ; 3 P. Wms. 12; 1 Vesey, senr. 558; 2 Atk. 420 ; 3 Atk. 20.</p> <p>In ex parte Higham, 2 Vesey, 579, Lord Chancellor Hardwicke refused to order the whole of the wife’s property to be paid to the husband, though she was in court and desired it. So in cases Temp. Talb. 43 ; though there are some cases to the contrary, see 2 Atk. 67.</p> <p>One of the reasons given for the courts of law not exercising jurisdiction over legacies is, because they have not power to compel settlements as the Court of Chancery can. 5, Term. Rep. 690, Beeks vs. Strutt.</p>

<p>The defendant denying by his answer the allegations of the bill, which was filed for a discovery, and the answer not being contradicted sufficiently distinctly, or positively, by evidence and by circumstances, the bill was dismissed with costs.</p>

Mr. Foltz had brought a suit at law, on certain notes of hand, given by Mr. Pourie, in the name of the commercial house of Pourie & Dawson. Mr. Dawson resisted, the payment, on the ground that these notes were given by Mr. Pourie for bis own private purposes, and subsequent to the dissolution of the copartnership. On a trial at law, the jury found a verdict for the defen-J † . - ■ ....

<p>THIS was a bill filed by the complainant against ber husband, charging that he had used her extremely ill, and praying for alimony to be allowed- her out of his estate, for the maintenance of herself and child.</p> <p>The bill stated that the complainant, (a lady from St. Domingo''intermarried in the month of February, 1800, with Francis Jelineau, (also from St. Domingo,) and for some months lived with him in peace and harmony, but soon after his conduct became changed, and her life made wretched, by his ill treatment. That he cohabited with his own slave, by whom he had a mulatto child, on whom he lavished his affection ; whilst he daily insulted the complainant, and encouraged his slave to do the same. That her said husband told her she should quit his house, and his conduct compelled her to do so; and she took refuge with a friend, at whose house she has become the mother of an unfortunate child, to whom the means of subsistence have been denied by his unnatural parent. That since the birth of her infant, she has written to her husband, and applied to him through her friends, but their applications have been unavailing. Her husband, has repeatedly declared that she should never have a shilling of his money; and in fact has not contributed one farthing to the support of herself or his child, since his conduct drove her from his house; though he is worth 7 or eight thousand (7 or 8,000) dollars. That he has sold his property in Coosawhatchie, and is about to depart the state, and to leave her and her infant unprovided, and totally destitute — the bill prays for relief.</p> <p>The answer of the defendant admitted his marriage with the complainant, but denies that he has used her ill, or in any way to justify her separating herself from him. The answer states, that she owes her unhappiness to her own conduct; and that if she had behaved towards him in a decent and dutiful manner, she might have continued to live happily with him. The defendant states that at the time he was about to marry the complainant, he informed her that he had a mulatto child, born to him in St. Domingo, (where he stated, it was not disgraceful to have such connexions,) for whom he cherished an affection, and meant to provide ; and the complainant promised to behave kindly to said child.</p> <p>That when the defendant married the complainant, she passed under the name of the widow of Mr. La Barthe, by whom she had a son, about eight years of age; but he has since been informed that he was the son of a Mr. La Fon. But she had lost a daughter some time before her marriage with complainant, whom he has since learnt was the child of Mr. La. Barthe. That the defendant hath since learned that the complainant never was married to Mr. La Barthe, but had imposed herself upon him as the widow of that person; which she has in fact since ac-kowledged to him. That the complainant soon after the marriage, forgot her promises, and used his mulatto child so ill as to distress and wound his feelings, and oblige him to complain to her of her conduct; which only encreased her severe treatment to his child, as well as to her mother, and also her abuse and ridicule of the defendant.</p> <p>That the complainant took some sugar out of the store, to send to her sister, contrary to the directions of the defendant, who told her he could not maintain two families. TV hereupon he told her if she repeated this conduct, he would turn her away. She retorted with insult and abuse, and declared that all she wanted was that he would turn her away. That the defendant being greatly took advice from counsel, who informed him that he could .... not separate himself from her without maintaining her, on which he resolved to make the best of a bad bargain, and not to furnish her, by his conduct, with a pretence of separation which she desired; but he offered her a sum money if she would voluntarily separate from him, by deeds duly executed; which she did not accept, but treated him with scorn and contempt, and shut herself up in her chamber a fortn|ight, inaccessible, to him, and inattentive to him, though very sick and debilitated.</p> <p>That the complainant at length quitted the defendant’s hot.se of her own accord, taking with her some of his property, and endeavouring to slander his character among his neighbours.</p> <p>That defendant never struck complainant, or threatened to do so, though she insulted him almost beyond the bounds of human patience, when he reproached her with her former licentious life, and imposition on him.</p> <p>Defendant denies that he insulted complainant or permitted the negro slave to do so; and he denies that he desired the complainant to quit his house, or obliged her to do so by his ill usage of her.</p> <p>The defendant admits that the complainant has had a child born since she left his house; but that from the date of its birth, and the opinion of medical men, he has good reason to doubt its legitimacy, as the said child was born only 8 months & 4 days after the marriage took effect.</p> <p>The defendant admits that the complainant wrote to him a short time before she filed her bill of complaint; but her letter contained so many false charges, that he took no notice of it — and when her solicitor John Bee Holmes, Esq. applied to him on her behalf for a maintenance, he answered that it was. impossible for him to maintain her apart from him; but that his doors were open, and that if she would return and behave properly to him, he would do so to- her. Defendant denies that he declared she should never have any of his money, except in resentment °f her declaration, that she married him only for his money. But he admits that he has not supplied her with any thing since her departure, she having helped herself wpen spe quitted his house. Defendant denies that he, has sold his property, or has any settled determination to leave the state, though he has some thoughts of returning to France in a year or two.</p> <p>Defendant denies that he is worth more than about $3000, which is insufficient to enable him to maintain complainant separate from himself. ’</p> <p>The defendant submits to the court, “ That under the above circumstances, he is not bound to provide for her a separate maintenance, though it would be more to his happiness to do so, if he had the ability, than to receive her back. Neither does he think he is bound to receive her again; but should the court think it proper that he should receive and maintain her at his house, he is ready lodoso, and to treat her with the same respect that she, shall treat him.”</p> <p>The cause came to a hearing in June, 1801, and it was proved that the defendant Jelineau had treated the complainant with great indignity and impropriety, and had degraded her in his language and deportment, below his slave, the mother of his Mulatto child. But there was no proof of his having struck her, or actually turned her out of doors, though he had threatened the last. She left the house, after repeated ill usage and degradation.</p> <p>There was no proof on the part of defendant, of the charges made in his answer against the complainant.</p> <p>Dr. Fronty proved that her child was an eight months child.</p> <p>But no notes of the arguments have been preserved. The minutes taken by Chancellor Marshall refer to 1st Fonb. 96, and to the case' of Oxenden v. Oxen-C-Mirm Vv..u°j, den, reported in 2 Vern. 493, and the important cases connected with it. (See Nichols and Danvers v. John Dan-vers and others, 2d Vern. 671, and Williams v. 2 Vern. 752.)</p> <p>The case of Head v. Head. 3 Atk. 547, appears to have been cited and relied upon by the defendant’s' counsel, to shew that the court could not give relief in such a case as this. The remarks of Chancellor Marshall, (in his own hand writing, on his brief,') are important. He says, “ the principle of this case, (Head, v. Head,) is an extraordinary one. It compels the wife however, reluctantly, and not withstanding .the most, barbarous and inhuman treatment on the part of the husband, to go back .to him, merely because he makes an offer in court to take her back. This is called enforcing- the marital rights. I observe through the. whole current of cases on this head, that the Court of Chancery in England touches this business of alimony and maintenance, with a delicate hand. They leave it to the ecclesiastical courts. Here we have no such institution, and must take it on ourselves.”</p> <p>Chancellor Burke made the following remarks, (in his hand writing on the same brief,) on the case. “ His (the defendant’s) invitation to her to return and submit herself to new insults from his mulatto mistress, she as a woman of sense, must feel as a further indignity. His answer tells us that this mistress forms the source of the whole difference; yet not a word about removing this cause. Had he made this offer, she should make an experiment.”</p>

<p>The court decreed that the identity of a devisee and legatee, coming from abroad, was sufficiently proved by evidence and circumstan. Ces. But the legatee should give security that the estate should be returned at his d.eath, if the limitation over in the will, on the event of his dying without leaving any heirs, should be hereafter decreed to boa good limitation.</p>

<p>THE bill filed in this case, was to compel an account and settlement of the estate of the common ancestor of the family, Wm. Cattell, under and conformably to bis will, made in the year 1752.</p> <p>It is unnecessary to state the case fully, as the only point decided by the following decree was, that the complainants were not barred by the lapse of time, or by the operation of the statute of limitations, as was contended by the defendants counsel; and that the complainants were entitled to a settlement.</p> <p>The facts on which the court grounded its judgment, are sufficiently stated in the decree itself, to enable the reader to perceive tbe principles on which it is founded.</p>

<p>Where there is a plain and positive devise, the Court will not raise an implied trust in executors, to favour a particular devisee.</p> <p>Among Other legacies to the testators relations, there was one “ to the children” of his nephew, S. M. H. and then a devise of the residuary estate to his several relations," abovementioned,” with bequests, share and share alike. These children take but one share of the residuary estate.</p> <p>A legatee by codicil is not entitled to a share of the residuary estate bequeathed to his relations named in the will, of whom he was not. one.</p> <p>The real estate decreed to be sold, and then divided among the residuary legatees, some of whom were aliens.</p>

BY a decree' of this court given in June, 1788, (vide 1st vol. of these reports, page 156,) it was decided that Mrs. Poyas was entitled together with her sisters, under her fathers will and a codicil thereto, to a residence on his Goose Creek plantation, and to plant thereon, during their lives, after which the estate was to go to the complainant in fee simple.

<p>THE bill of complaint charged that in 1783, William Smelie married Mary Lowrey, who, at the time of the marriage, was possessed of a considerable personal estate that she had one child, the issue of her former marriage, who afterwards married Abraham Waight, now dead.</p> <p>That William Smelie, in August, 1787, made a certain deed, by which he gave to said Mary Smelie, after his death, all the estate that belonged to her at the time of her marriage with said William, to her and her heirs for ever. That said Mary, at the time of.her marriage with Wm. Smelie, was possessed of eighteen negro slaves. That said Mary on the 30th of October, 17-87, made her last will, and left to her daughter Sarah Maxwell Waight, several negroes by name to her and her issue. She also bequeath» ed to Sarah Hutchinson, one negro and 100/. currency.— The remainder of her estate she left to her husband Mr. Smelie, during his life, and at his death, to her daughter and her issue, and in failure of issue, to return to her heirs for ever.</p> <p>That Mary Smelie died in the year 1788, leaving her Will in full force. That complainant, with the assent of William Smelie, qualified under said will; that having ob* tained a warrant of appraisement, he went on said plantation of William Smelie, who delivered to complainant 18 slaves as the estate and effects of testatrix. That complainant took an inventory and appraisement of said slaves, and delivered to Sarah M. Waight, with the assent of said William Smelie, the negroes bequeathed her. And he also delivered to said Wm. Smelie, the negro left Sarah Hutchinson, and the rest of said slaves to be held by him agreeably to the tenor of said will.</p> <p>That Sarah M. Waight married B. Stiles, and is since dead, leaving three children now living. That William Smelie died in December, 1800, having first made and executed his last will, and appointed B. Reynolds, W. Hayne, and John Seabrook, executors, who qualified thereon. That the complainant demanded the negroes from the executors, who refused to deliver them. "The bill prays that they may be compelled to deliver them to complainant, and to account for their work and labor since Mr. Smelie’s death.</p> <p>To this bill, the defendant, Benjamin Reynolds,the prim cipal acting executor of William Smelie, put in an answer. p}le answer of B. Reynolds admits, that at the time of the marriage of Wm. Smelie with Mary Lowrey,that she was possessed of some personal property purchased at the sale of her former husband’s estate; but the whole purchase money was not paid at the time of her marriage with Wm. Smelie.</p> <p>The answer admits that W. S. made the deed as stated in the bill, but denies the validity of it, as there were no trustees, and the deed was from husband to wife : and as the deed was executed on a supposition that the property was unembarrassed; whereas William Smelie was obliged to pay the balance of the purchase money, and therefore the property vested in him by purchase. Defendant denies the right of complainant to take the property by virtue of the deed, as it was not to take effect until after William Smelie’s death, and was intended for the benefit of Mrs. Smelie ; but on her death, the gift having been to her and her heirs and assigns, the property became vested in W. Smelie, the husband, as answering the description in the deed, and legally entitled to his wife’s property. The defendant avers that William. Smelie told the defendant and. others, that he did not consider the deed to be valid, as he had signed it under the impression that the property was unincumbered, and that he never would give up more than he had already given up, alluding to negroes named in will of Mary Smelie.</p> <p>That William Smelie sold one of the negroes that had belonged to Mrs. Smelie, previous to her marriage with him. The defendant admits Mary Smelie made a will, but denies its validity, as the said will does not appear to have been made under the authority of any settlement or other deed. With the assent of William Smelie, the defendant admits complainant may have gone on the planta - 'áon of Wm. Smelie, and that he may have made an inventory ; but defendant contends Wm. Smelie was ignorant of or had a misconception of his rights, and that such permission ought not to be binding or considered as an assent on the part of said Wm. Smelie, as said William Smelie declaredto defendant that he had acquiesced, supposing complainaut legally authorized by virtue of authority from the ordinary. The defendant 'states that W. S. had told him that complainant had made application for the purchase of the negroes mentioned in the inventory, and had ofibred half of the value; but that he the said W. S. refused to part with them but for their full value.</p> <p>Defendant contends that permitting negroes named in the will of Mrs. Smelie, to be delivered to Mrs. Waight and Hutchinson ought not to be considered as an assent on part of said W, S. as those acts were done immediately after the death of his wife, when ignorant of his rights, and he might of his own bounty have consented to these, dispositions. The defendant admits the death of W. S. his making his will, naming'executors who have qualified. H e admits the demand of the complainant, and his refusal; also, the marriage of Mrs. Waight with B. Stiles, and issue left as stated in bill.</p> <p>At the hearing in November, 1801, the following state-ment was agreed upon by the parties, as a part of the case-. That Mrs. Mary Lowrey purchased at the sale of her. deceased husband’s property, certain slaves, for the price of which she executed and gave her bond. She afterwards married Mr.'WilliamSm-Tie. On the 30th March, 1804, her brother, Mr. Hugh Wilson, and her husband, Mr. W. Smelie, took up her bond, and gave their own in place of it, conditioned to pay 571/. with interest.</p> <p>This bond has been since paid off as follows : on the 24th May, 1788, by Mr.-Smelie, 239/. 18.?. 6d. On 1st May, 1796, by Mr. Smelie, 110/. Is. 3d. The balance of the bond paid by Hugh Wilson,</p> <p>The complainant produced in evidence the original will of Mrs. Mary Smelie, drawn in the hand writing of her husband Mr. Wm. Smelie.</p> <p>Mr. Hugh Wilson (who was admitted to be sworn, by consent,) testified that his sister, Mrs. Mary Smelie made her last will, with the consent of Mr. Smelie, herhus-band, and by his authority, expressed verbally.</p> <p>The introduction of such evidence was opposed, but admitted by the court.</p> <p>Mr. Wilson then proceeded to state that when his sister was ill, Mr. Smelie sent for him, and told him she was about to make her will, which was done accordingly. Mr.Smelie himself wrote the will, and kept it; and after his wife’s death, carried it to the Ordinary, and had it proved and recorded. A time for the appraisement of the property was fixed; and Mr. Smelie delivered up the property, and said he had no claim to it. He delivered the negroes bequeathed to Mrs. Waight, and paid the lega» cy to Mrs. Hutchinson.</p> <p>Mr. Smelie always called the property his wife’s; though he knew the negro slaves had not been fully paid" for by her, and he had given his bond jointly with her brother for the purchase money. He proposed to the witness to purchase his (Smelie’s) life estate, for his wife’s daughter, who was to have them after his decease.</p> <p>On cross examination, Mr. Wilson said that Mr. Smelie some time after his wife’s death sold one of the slaves of her estate ; and offered for sale an entire family, without restricting it to his life estate in them. He mentioned it to witness, but did not ask his permission.</p> <p>Mrs, Chisolm testified that Mr. Smelie, a short time before he died, told h1. r he had sold one of Mary Smelie’s negroes; and said he had sold her because worthless and diseased. She always heard him call the negroes of his wife’s estate, her property. .</p> <p>Mr. John Smelie testified that he was appointed one of the appraisers of Mrs. Mary Smelie’s estate by Mr. Wm. Smelie, who said the property was to be appraised as her estate, and not his. Headways heard Wm. Smelie speak of the property brought by his wife, as her own property, and to go to her daughter by her former marriage. He offered to sell his life estate in the negroes, to Mr. Hugh Wilson, who told him his price was too high.</p> <p>Mrs» Bouchonneau testified that she ofti n heard Mr. Smelie tell his wife he did not want her property, and that she should give it to her daughter — was present when Mrs. Smelie signed her will. Mr. Smelie wrote it; but it was she who insisted on giving him a life estate in her property.</p> <p>Mr. William Smelie’s will was produced in evidence. It was dated in the year 1798, with a codicil Bated 6th Dec. 1800. In that he gave to his last wife the property he got by her.</p> <p>that Mr, Smelie had completely divested himself of his marital rights, and agreed to a settlement to the separate use of his wife. That though the statute of frauds is the rule of the court, yet there are exceptions to it; and parol evidence is admissible to explain. See 1 Powell,,432.</p> <p>The evidence is very full to prove that he never considered or called his wife’s property his own; but meant it always to be her separate , estate. As to the separate estate of the wife, see 1. Fonb. 106. 7.</p> <p>It was said that Mr. Smelie was ignorant of his marital rights, and acts done in ignorance of rights, are not binding. But this is not so. He seems to have beén intelligent and beneficent; and his language and conduct all shew that he was aware that he might take his wife’s property to himself, but deliberately declined to do so; and left it to her own disposal chic fly for the .benefit of her daughter, to whom by his marriage he stood in the place of a parent; and the court will consider this as a gift to her.</p> <p>Gifts to a wife, without trustees, will pass. See 1 Atk. 270. Lucas vs. Lucas. And an agreement on marriage may be made without trustees. 2 Ves. sen’r. 666 8. Pan-let vs. Delaval. See also,-2 P. Vms. 244, Cannel vs.■ Buckie; and 2 Vcsey, jun. 488,49. Si.Wm's, 388, Slanning vs. Style. The husband is considered trustee of the wife’s separate estate, where no trustee is named.</p> <p>The will was drawn by Mr. Smelie himself, This shews that he considered the property as his wife’s sepa-, rate estate, and being in his hand writing, was a sufficient assent in writing, if that were necessary, which however it is not. Consent may be implied, and even subsequent approbation will be sufficient. See Burn. 47,8,</p> <p>The answer does not deny the deed as illegal or invalid, but rather as defeasible by Mr. Smelie’s paying great part of the purchase money for the property of his wife ; yet he was at liberty to do so, if he pleased, and he ought still to hold and consider it as his wife’s separate estate. He has clone so, and even confirmed it by his will; and who is there who can control his acts.</p> <p>They insisted that no contract between husband and wife is binding, without the intervention of trustees. They are not separate persons at liberty to contract. The deed therefore was not valid. The case of Mrs, Haig vs. the executors of Haig, decided in this court in 1794, (seevol. 1, of these Reports, p. 348) is strong to shew that the wife cannot take property to her separate use by direct gift, without the intervention of trustees.— There was also a want of consideration, for the marriage had been consummated, and the marital rights had attached. Powell on Contr. 230.</p> <p>If the deed can take effect, it must be as a gift. The deed was executory, and donee died in the life time of the donor — therefore void. If it was to operate as a will, then by the death of Mrs. Smelie, in the life time of the husband, this was lapsed. 1 P. Wm’s. 84.</p> <p>If the deed be. inoperative, the will of the wife does not help the complainant — for a wife cannot make an effectual will or testament without the consent of her husband, and that must be in writing. 4 Burn. 46, 78. 1 Bacon abr. 291. Godolpbin, 30. Our stat. of 1734, excludes femes i- -li • covert from making wills.</p> <p>But the deed by Mr. Smelie was void, for it was made direct to the wife, without trustees, after marriage, and to take place in futuro. .</p> <p>A man cannot grant any thing direct to his wife, or enter into covenant with her. 2 Bla. 442. Co. Litt. 112, 113. 1 Fonbl. 93. 1 Vem. 385, Moyse vs. Eyles. 3 Atk. 72, Beard vs. Beard. All agreements in consideration of marriage, must be in writing, or they are void. 1 Fonbl. 179; and.even then, if not to be executed within a year, they are void by the statute of frauds.- -1 Atk. 270. 3 P. Wm’s. 334. 3 Bro. C. C. 340, 381.</p> <p>The defect of the want of a trustee is decisive — for it is only through a trustee that a husband can grant to his wife. 2 Bla. 442, note 16. Hargr. Co. Litt. 30. 2 P. Wm’s. 77, Burton vs.. Pierpoint. 1 P. Wm’s. 125, Harvey vs. Harvey.</p> <p>It is a maxim that a gift of personal property to take effect in,futuro is void. 2 Bla. 441, 2.</p> <p>In Darley’s case, 3 Atk. 399, 400, lord Chancellor Hardwicke lays it clown that a mere voluntary promise of a husband to a wife, and executory only, has never been carried into execution by the court. That the slaves were absolutely the husband’s by virtue of the marital rights cannot be denied. To this it may be added, that he even paid the greater part of the purchase money for them. — ■ Hence, a resulting trust to him, independent of the marital rights. If a man purchases even lands in another’s name, and pays his own money, it will be a resulting trust for liimself; though no deed be made declaring the trust.</p> <p>See 7 Bac. 142. 1 yern. 366. 3 P. Wms. 321, 3.</p> <p>Besides, in construing this informal paper, it is clear that it was to have effect, in case Mrs. Smelie survived her husband. The words are, “ I give, after my decease, to Mary Smelie,” which amounts to saying, in case she survives me. But that event did not occur — she died before him.</p> <p>The deed gave no power to the wife to make a will; and she had no power without such provision." Bylaw a feme covert has no authority to make a will — and even where, by agreement before marriage, a wife is to be allowed to make a will, it must be duly executed and conform to the power to make it effectual. 1 P. Wm’s. 739. 2 P. Win’s.' 258. All the cases where married women have been permitted to make valid wills, are cases where the husband bound himself by covenant or bond, to permit his wife to make a will. 7 Bac. abr. 244. 2 Vern. 329. 2 P. Wms. 623. 2 Ves. sen’r. 61, 75, 612. 3 Atk. 155.</p> <p>Not one of the decided cases go so far as to say, that pa-rol proof shall be allowed to establish a husband’s verbal assent to his wife’s making a will, or without a previous agreement in writing.</p> <p>Acts of confirmation must be shewn to have been with full knowledge of the rights of the party confirming.</p>

<p>THE late Paul Hamilton, uncle of the complainant, was an inhabitant of this state, advanced in life, and possessed of considerable property, when the revolutionary war commenced. He was unfriendly to the separation of the colonies from Great Britain; and his conduct in the course of the war exposed him to the resentment of his countrymen. He was amerced twelve per cent, on the value of his estate. When the British troops evacuated Charleston,, he left his country, and went to the Island of Bermuda. He had previously lost his only child by death> ■an<^ ^is nearest relations were his nephew Paul Hamilton, another nephew, of the name of M’Cleod, and three nieces. His nephew, called after him, Paul Hamilton, was ardently attached to the American revolution; and though a youth under age, had distinguished himself gallantly in the partizan war which unhappily desolated the country towards the close of the struggle. His conduct offended his uncle, who, though a respectable man, had strong passions and prejudices. In this state of mind, and under these circumstances, Paul Hamilton, the elder, made his will at Bermuda, in the month of April, 1784; and oivthe 1st day of May, 1784, he drew up and signed a certain instrument or paper;, which he headed and called instructions, directed and addressed to his particular friends, Jsaac Peace, Alexander Chisolm and Norman M’Cleod, (which last was also his nephew,) in which, after giving certain explicit and positive directions and instructions relative to the sale, application and disposal of various parts of his property, real and personal, in this state,, he expressed himself as follows : “ The above said several requests being fully and completely complied with, strictly adhered to, donations paid, and your continuing in punctually remitting to me in Europe the yearly rent arising as aforesaid from my house and lot in Church Street, Charleston, my will is, that my nephew, Norman M’Cleod shall continue to live and occupy my plantation on Edisto Island, together with the slaves, now on the same, to wit: Sambo, August, Sanco, Jack, Sarah, with the stock of horses, cattle, hogs, &c. in short all the implements on the premises ; then it is. my pleasure, and I hereby will and request that my said attomies, Isaac Peace, A. Chisolm and N. M’Cleod, do mutually, unanimously agree with each other to collect, ascertain and receive the rest, residue and remainder of my personal estate, wheresoever and whatsoever. And as they receive the saíne, each to render an account to the other, and mutually and in a friendly manner divide the same equal and amongst them, share and share alike. This is mv express desire, that they do, and continue to do in full confidence, that they my sqid attornics will yet oblige me in acting in tbe said friendly and faithful manner in future, in complying with my desire, as my attornics during my life, if they survive ; whose friendly and faithful conduct, I have intime past, so happily, so amply experienced.”</p> <p>In a letter written by Mr. Hamilton to Isaac Peace, dated 5th June, 1786, he says, “ Rice cannot, I believe, be shipped to make a saving remittance ; yet it is better than Indigo, and I think better than any bills, so should you be so happy as to receive in andbe able to furnish me in future with what remains from, as per instructions from Bermuda, per Normand, to wit: The first payment, 700/..for the James Island plantation, and the yearly rent, be it what it will, of my town house, I wish no more. It will be sufficient for me. You know I have received by bill on Champion & Dixon, in part of said 700/. 500/, and now in rice, perCapt. Ball, say 95/. 14s. lid* making 600/i or near it, of the 700/. paid by Rivers: so there remains only about 100/, of that allowance as per instructions aforesaid, with the rent .added, of my house as you may get it paid. This I say is the utmost I desire shall be remitted me here as may suit you to receive it convenient, for you. If you should fail even that, I must.be satisfied, and shall be, as I am convinced you do as well aij though I was present. All this I explain to you to confirm to you, that I do not deviate from my instructions, and the same will be enough for me. As you desire to know if you shall make me another shipment in rice, I answer dont exceed the above if you should ’ receive from Rivers and Pthers; but you shall remit, please let it be in rice or cash, or either, (no bills,) so pray apply all you may receive of my estate, of any person above this allowance to myself, to your own benefit, as directed by the instructions, immediately, and it will give me .pleasure to hear you can help yourselves and families, who I esteem. Shew this to Chisolm and Normand, as my requests to each of you are jointly.”</p> <p>In another letter, dated 20th Feb. 1788, he says, a You hint the remitting me and giving me notice, in time to make insurance. I thank you, and should you do so, let it be only a moderate amount, even if you fortunately get payment of Rivers and others. I do not require more than you jointly think proper to send me; but as per my desire by instructions per Poinsett, I only wish to be kept free from any claim whatever to answer the two trifles at Befmuda. See the event of the amercement, and then divide part as in your power amongst yourselves, as directed, and in such mode as you jointly or by majority of two agree»”</p> <p>The attomies of Mr. Hamilton acted under these in-' structions, collected in some of the debts due to him, and made him some remittances, and divided among themselves some of the money collected. Not, however, being able to collect in all the monies due on the bonds of Mr. Hamilton, they thought themselves at liberty, under the instructions abovementioned, to divide among themselves, the bonds themselves. Accordingly on the 1st of May, 1788, they proceeded to make such division,- and made an allotment of the bonds to the amount of about 4000/. sterling, as appeared by a paper headed “ division of bonds, 1st MajqTP88, the gift of P. Hamilton to I. Peace, N. M’Cleod, and A. Chisolm,” specifying particular bonds to each individual.</p> <p>It does not appear that any information of this division of the bonds was given to Mr. Hamilton, with whom, however, the attornies kept up a friendly correspondence.</p> <p>Mr. Hamilton went to Europe from Bermuda, and resided in England; and in the course of time his resentments and prejudices against his nephew Mr. Paul Hamilton the younger, were softened, if not wholly removed ; and he felt disposed to take him into favor, and to give him with others hereinafter mentioned, the benefit of that part of his debts which had not been actually collected in, and divided by his attomies, according to his instructions in the year 1784. In pursuance of these intentions, he wrote a letter to I. Peace, A. Chisolm, and N. M’Cleod, dated ¡London, 15th Sept. 1791, in the following words</p> <p>Letter from P. Hamilton to I. Peace, A. Chisolm, and N. M’Cleod, dated</p> <p>“ Londop, 15tli September, ‡791.</p> <p>As time produceth all things, and a few years occasion changes among us of the human race, Divine Providence has spared me to live and see seven years since I sent my instructions from Bermuda by N. M’Cleod, for your con* ducting and settling my affairs, by calling in my debts, and distributing as directed then by said instructions, of which I have a copy in hand, experience has taught us and others, that the sanguine hopes entertained then, that law and justice \yould immediately after the peace sue* ceed, and debtors be disposed to pay their debts, but that we have been mistaken.</p> <p>I am now advanced in years, and reviewing the changes of circumstances since the date of the above instructions, the present situation of my relations in Carolina, and their issue and each particular as matters stand now with you there, and with me here, and well knowing your willingness tp pardon my weakness, and to comply with my will; It is now as I conceive, I have latterly already expressed it, my will, that you, my attorrnies, Messrs. Peace, Chi-solm, and M’Cleod, together with my three nieces Chris-tiana, Dorcas and Ann, with my nephew Paul Hamilton, be equal partakers and sharers of all my debts due there, as well as due from Thomas Rivers, for niy James Island ]and sold him, as all other debts of whatever kind. And that you, the said seven persons, shall enjoy equally and as speedily as the same can be collected in, or as you may mutually agree to divide the same debts among you.</p> <p>M¡y last will and testament executed here, corresponds with and expresses distinctly these my new instructions. You, my now three attornies, in case of my decease, are then my executors for all my property in Carolina, while 1 nominate others here, so that each party is positively restrained from giving trouble, or meddling- with the other,, On my d>-cease, my ext cutors litre are to transmit one of the two executed wills of the sametenour and date, with other papers to you, with a certain sum of money, also to be divided betwixt you the said seven. Two drafts of my will I have executed for said purpose. No debts 9-therwise are to be claimed or paid in Britain from Carolina property — nor in Carolina from my property in Britain. — « The above instructions and my said will and testament are my will, and I hope will be satisfactory to all concerned, ánd to the world before and after my d-.-ath.</p> <p>Thus much my friends, which in all probability I may never change or alter while I live.</p> <p>May we ever be enabled to say God’s will be done.</p> <p>Yours affectionately, Paul Hamilton,</p> <p>This was accompanied by a letter of the same date tq the same persons, and intended to be a more private comt munication. It is in the following words :—</p> <p>Copy of another letter from P. Hamii.toN to I. Peace, A. ChisolM, and N. M’Cleod, dated</p> <p>“London, 15tb September, 1791.</p> <p>You will readily see on 3mm* perusal of the instructions enclosed, that I wish to ease my mind, by Dying to satisfy die world, and individuals also, especially now in age.</p> <p>As it hath been impossible for you to collect in and distribute my pecuniary property as yet, as formerly instructed, I now mean to pass over the froward conduct of my junior name sake and nephew Paul Hamilton, and place him just equal with, and let him be one of }Tou seven, as expressed, in taking one seventh of all that you, my attor-iiies can collect in future, or mat' have lately collected.</p> <p>Friend Peace to be made whole for his advance of amercement. No claim to be unpaid ; divide what’s due from Thomas Bivcrs, as well as all old accounts, amongst you seven, mutually and equally, and as soon as you are able. Please let my nieces and Paul know this my desire. I wrote you some time ago of selling my house in Gibraltar Row, and of my purchase, and now residing in No. 4, Gumming Place, Pentonville, City Road, London,</p> <p>Please let this be your direction in future, &c.</p> <p>P. H.</p> <p>It does not appear that these letters were communicat-edby the attornies to Mr. Paul Hamilton, jun. Nor is there any proof that they expressed to their constituent Mr. Paul Hamilton, senr. that they were dissatisfied with his new instructions; or considered his first instructions as' irrevocable, and conveying absolute rights to them.</p> <p>Indeed it is certain that no such pretensions were set up during the life time of Mr. Hamilton, and made known to him, for in his letters to his nephew Paul Hamilton, (with whom he opened a correspondence) in 1793, 5, and 6, he tells him he hopes be will soon enjoy a seventh part of all his pecuniary property in South-Carolina. But it appears that the instructions of May, 1784, were not put on record until the instructions of September, 1791 were received; soon after which, to wit: in December, 1791, the former were placed on record, and not the latter. Mr. Paul Hamilton, the elder, died some time in the year 1798, and one-of the attornies communicated to Mr. Paul Hamilton, jun. in a letter of 23d Oct. 1798, the will of his uncle, and the instructions of 1784.</p> <p>Subsequent to the death of Mr. Hamilton, the attornies set up the pretence that the instrument or instructions of Mr. Paul Hamilton, in May, 1784, contained an immediate, absolute, and irrevocable gift to them — of the pecuniary property of the donor, whether collected on the bonds or not; and that they had made a division among themselves of the bonds in 1788, which was conclusive on all parties.</p> <p>Mr. Paul Hamilton, jun. taking a different view of the subject, filed a bill inequity against Messrs. Isaac Peace, Alexander Chisolm, and Norman M’Cleod, to compel them to account for those debts which had not been actu* aUy collected in and divided, before the new instructions of his uncle, in the . year 1791. The answer denied the right of the complainant to call them to any account, and insisted on the absolute gift of the uncle in 1784.</p> <p>At the hearing, the instructions of 1784 and of 1791, were given in evidence. Also, many letters from Mr. Hamilton to his attornies, and some of their answers.</p> <p>Also, his letters to his nephew Paul Hamilton, in 1793, 5, and 6 — in which he expresses his hope that he would soon get a seventh part of his personal estate in Carolina.</p> <p>Also, a paper, stating a division of all the bonds on which monies were due to Mr. Hamilton, made by the at-tornies among themselves, on the 1st May, 1788, allotting to each certain specified bonds.</p> <p>Several witnesses were also examined. Mr. ' Glover testified, that Mr. Paul Hamilton the younger, took a very active, part in favour of his country, in the revolutionary war. He entered the service at 16 or 17 years of age. It was known that Mr. Paul Hamilton and his uncle differed on politics; which created disgust and dislike in the mind of the uncle.</p> <p>Mr. Rivers testified, that he was well acquainted with Mr. Paul Hamilton, the elder, and knows his handwriting. He proved the letters of 15th Sept. 1791, and those of 1793 and 1796, and the instructions, to be in the hand writing of Mr. Hamilton. The witness became a purchaser of part of Mr. Hamilton’s property, to the amount of 1700 guineas, of which 700 were paid down, and the balance payable by instalments, He made some payments before 1791, and some since'1791, to Mr. M’Leod and Mr. Chisolm, wfio lv Id the bonds,</p> <p>Paul Hamilton, the uncle, lost his only child (a son) about the tim; the British troops invaded this state. He and his nephew differed in political opinions.</p> <p>Mr. George Tunno testified, that he saw Mr. Paul Hamilton the elder, in l.oudon. He committed to the care of the witness certain papers, which he said were of Consequence, and which he read. The witness left England on the 1st October, 1791, and the papers were delivered to Mr. Peace, in Nov. 1791. The purport oí these papers was that his blood relations should have his pro-r ^ 1 perty equally. Witness informed Mr. Paul Hamilton, the nephew, of these facts. When the witness saw the elder Mr. Hamilton, it appeared that he had heretofore thrown off his nephew; and that this was on account of the decided part Mr. Hamilton, jr. had taken in favor of his country. He did not state to the witness in conversation that he had changed his mind as to his nephew.</p> <p>It was argued by Mr. Desaussure and Mr. Gail-LAB.D for the complainant, that this instrument, paper or instructions, of May, 1784, under which the defendants claimed the property of Mr, Hamilton, senr. as an absolute gift, irrevocable by the donor, was of a very doubtful and amphibious nature. It certainly had seme features of a deed, as well as some of a will. The writer himself heads it, instructions to his attornies, with directions for their conduct. But it is manifest that he and the defendants also considered the subject 'as under his control. They continue to correspond on the subject; and he did actually in 1791, make a different disposition of such of the debts as had not been actually collected, received and divided. And the attornies, though he lived many years afterwards, never disputed his power to do so, or remonstrated with him, as attempting to make a new disposition of what he had previously disposed absolutely to them.</p> <p>This acquiescence shews the light in which they viewed the subj ect. They did not dare to avow to their frit nd, that they claimed the whole, and that he could not dispose of his own property. The court will the m.'re readily give this construction to so doubtful a paper, when it is remembered that this prejudice and exclusion of a nephew, the nearest to him in blood, and bearing his name, was the wretched offspring of a miserable difference of political opinion, which shut up his heart against the merit of a distinguished relative, and excluded him from all share in his fortune, for the benefit of persons, two of whom were' entire strangers to his blood, and there was no valuable consideration given. And the conduct of the defendants, in concealing from the nephew, the uncle’s altered temper an(l intentions towards him, which time and better feelings had brought about; and in concealing from the uncle their intention to resist his last instructions in favor of his nephew, and to claim the whole under the first instructions, does not entitle them to any favor. The court will there» fore treat this paper of May, 1784, as an anomolous thing, of no distinct character : and consider it, as the maker of it manifestly did, a thing entirely under his control and revision. If so, it was revocable, and t ein g so, has been revoked by the instructions of Sept. 1791.</p> <p>Papers of this doubtful kind, partaking partly of the nature of wills and partly of the nature of deeds, have been frequently construed wills. See 7 Bacon, 300. Title wills and testaments. Swinburn, p. 6. T. S. wrote a letter, which was construed to be a will. 1 Modern Rep. 117. A deed indented and executed between two parties, was construed a will. A deed referring to a will, is to be taken as a part of the will. This was the execution of a power. See Methuan v. Duke of Devon. 1 P. Wm’s 529 530. In Hodges v. Peacock, 3 Ves. jr. 735, a written paper, signed and entitled, “ Instructions to my friends and executors,” was considered as a part of the will, and proved with the will.</p> <p>The court will mould the deed or instrument in such manner as to give effect to the true intentions of the donor. The court construed a feoffment to be a will, to give effect to tlie deed. See 2 Ves. jun. 226.</p> <p>In Ousley vs. Carrol, decided in the Prerogative Court, (noticed in 2 Ves. sen’r. 440,1 a writing in the form of a deed, using the words, giving and granting, was construed to be a will. So in the case of Shargold vs. Shargold, also decided by the Ecclesiastical Court, (see 2 Ves. sen’r. 440, 1.) a deed of gift, but not to .take effect till the death of the maker, with sixpence delivered as a symbol, was decided to be a will. See also Swlnbum on wills, part 1, VA sec. 10, page 74.</p> <p>But it was contended, that call this paper by what name you will, some acts were to be done directly ; and the defendants were expressly directed to collect in the money due to Mr. Hamilton, and to divide it among themselves immediately ; and that this has been done, as to the money collected, and also as to the bonds ; which being in execution of an express order, is final and conclusive. This, however true it may be as to the mono}7 actually collected and divided, (and there is no wish to disturb' that, under any name the paper may bear) cannot be available as to the bonds.</p> <p>The power was to collect in and divide the money — not the bonds. The division of the bonds was a premature act, not done in pursuance of the power, and is void. All the bonds which remained uncollected, till the new instructions in Sept. 1791, must go in pursuance of these new directions.</p> <p>The instrument or writing of 1784, is an absolute gift or grant. 2 B. Com. 440.</p> <p>The requisites of a gift or grant, in the case of personal property, are words of transfer, possession, assent. 1 Pow. Mort. 27. 14 Viner, 19.</p> <p>The previous gifts are not conditions, but trusts in the defendants pro tanto. The subsequent words relative to the collection and receipt of the debts, are only modal and directory, and create no condition. 1 Powell on Contr. 267.</p> <p>The effect of these words is done away by the subsequent letters.</p> <p>All dispositions of property are resolvable into the following ••</p> <p>1st. Absolute sales.</p> <p>2d. Conditional estates.</p> <p>If it be a conditional estate, yet it is not revocable,</p> <p>B. Com. 441, 42.</p> <p>The nature of a conditional estate is, that it shall be defeated only for a breach of the condition.</p> <p>The caprice of the donor is not one of the conditions on which it is held.</p> <p>Conditions are precedent or subsequent. The differ» ence is stated in 2 Bla. Com. 154,163.</p> <p>If an interest depending on a condition precedent, has' in any case been considered revocable, it was.</p> <p>1st. In no case where an interest in a specific thing was conveyed, but in cases of contract.</p> <p>2d. Where the contract had not been at all acted upon, or the condition in no sort or part performed.</p> <p>3d. Where the convejumce only gave a naked power, not coupled with an interest.</p> <p>4th. Where there was no consideration. 6 Viner, 482, 83.</p> <p>. But if the interest in the present case be conditional, it is so on a condition subsequent.</p> <p>The condition is always subsequent, where possession, (the interest being a personal chattel or chose in action) attends the gift or grant.</p> <p>Possession, with words expressing a gift or grant, conveys the interest immediately, and vests the estate, which is inconsistent with the nature of a condition precedent.— Such a condition would be repugnant to a vested interest, and void. 1 Pow. Contr. 262.</p> <p>It is like a feoffment of land, with livery of seisin.</p> <p>If possession did not carry an immediate and vested interest, then it would be a limitation, not a conditional estate, which would suppose a vested interest in some other person, having a particular previous estate, which could not be without possession.</p> <p>If A. gives B. 201. in hand, on condition that he go to Rome, and there transacts certain business on his account, this is a condition subsequent. But if A. promise B. 20Z, on condition that he go to Rome..and there do cer»' tain business on bis account, this is a condition precedent. Possession in the one case, makes the difference.</p> <p>But a condition subsequent, can not be annexed to personalty ; and therefore the interest must be absolute,</p> <p>Bac. Cond. (D.)</p> <p>Condition subsequent, is founded on the idea of a reversion, of which there is none in personal property.</p> <p>If this were considered as a contract, it is such an one as the donor would be compellable to perform, 2 Bl. Com. 441.</p> <p>As to consideration, see 2 Bl.. Com. 445. 1 Powv Contr. 340, 43.</p> <p>3d. Gifts causa mortis.</p> <p>4th. Devises or bequests by last will.</p> <p>By enquiring under which of these the present disposition does not come, we will ascertain under which it does come.</p> <p>If an estate is not in its original grant or creation, so given as on some contingency to cease and determine, as in the case of conditional estates, or to shift, as in the case of a limitation, where, in the first case, it reverts to the donor, and in the second, it goes over to a remainder man, it will be absolute. See the case of Main and wife vs, .Dickinson, decided in this court.</p> <p>The gift was absolute, and has been fully executed. It would be quite inconsistent to allow this to be revocable.</p> <p>The grant being complete, and the property in possession of the donees, they were at liberty to divide the bonds as well as the money, when collected.</p>

<p>Mr. DANIEL HEYWARD made and duly executed bis last will and testament on the 7th June, 1776,. and made among other devises of his estate, the following dispositions :</p> <p>He devised to his son Thomas, in trust for bis, the tes-, 'Gator’s grandson Daniel, bis plantation on Savannah river, called Varnezober’s, with all the slaves thereon, till he attained the age of 21 years : then to him and his heirs for ever: Also, the slaves on the plantation where the testator resided, which were not otherwise disposed of. But if his grandson Daniel should die under age, then he gave the real and personal estate to the heirs at law of his son Thomas, when they should attain 21 years of age.</p> <p>He also devised to his son Thomas, intrust for his. (the testator’s) son Daniel, during his natural life, the use of the lands, slaves, stock, &c. enumerated in his will, viz. An island, called Callewashie, and sundry other tracts of land : also, his house in Beaufort, and several slaves: At the death of his son Daniel, the testator devised the lands to be divided between the heirs male of his body ; and for want of such, between the heirs femaleand the slaves, between the heirs, male and female : but in case of no such heirs, then the land and slaves to be divided between the heirs of his (testator’s) sons Thomas and William.</p> <p>By another clause in his will, the testator devised the-remainder of his estate l'eal and personal, to his sons James and Nathaniel, to be equally divided between them. •</p> <p>He also gave to his son Thomas, and his other executors, “ full powers to act, do with, and dispose of the yearly produce of his estate as they should think proper, for the benefit of his heirs above-mentioned.”</p> <p>By a codicil, dated the 15th July, 1777, and duly executed, the testator devised to his son Benjamin, (who was born after the making his will,) the island called Calle-washie, with the slaves, stock, Eke. thereon. “ But in case he <3ie without issue, then he gave it to his grandson Daniel Heyward, and his heirs for ever.”</p> <p>By another codicil, dated the 28th July, 1777, and duly executed, the testator devised Coles island, (which was originally granted to Russell,) and the slaves thereon, to his son Thomas, in trust, for the use of testator’s son Daniel, during his natural life; and at his death, the lands to be divided between the heirs male of his body, and for want of such, between the heirs female; and the slaves.,between the heirs male and female : but in case of no such heirs, then the land and slaves to be divided between the 7 heirs of his sons Thomas and William.</p> <p>The testator died in the month of October, 1777, leav-big his said will and codicils in full force. His eldest son Thomas proved the will, qualified thereon as executor, and possessed himself of the estates of the testator.</p> <p>The téstator’s son Daniel, died in the year 1778, without issue.</p> <p>His son William married after his father’s death, and died in the year 1786, leaving issue.</p> <p>The testator’s grand son Daniel, (son of Thomas,") died in the month of February, in the year 1796, having attain-, ed the age of 21 years, & leaving a widow and a daughter.</p> <p>The son Benjamin died in September, 1796, under age, and without issue.</p> <p>Mr. Thomas Heyward, the eldest son, and acting executor of the testator, educated and maintained his son Daniel, the grandson of the testator, who was so particularly provided for by the will; and afterwards had a number of other children by a second marriage. His fortune was greatly injured by the war, in which he took an active part, having been a member of congress at the time of the declaration of independence. But his affairs were not so reduced, but that he was able to support and educate his son Daniel, equal to his fortune under his grandfather’s will.</p> <p>The testator’s grandson Daniel, made and duly executed his last will and testament a few days before his deaths whereby he directed, that until his daughter Elizabeth M. Heyward should be married, or attain the age of 21 years, his wife should enjoy the profits of all his estate, if she remained so long his widow; and when his daughter should marry or attain 21 years, then the profits of the estate should be equally divided between his said daughter and his wife, as long as she should continue his widow. — » But that immediately after the second marriage or death ©f'his wife, the rest, remainder and residue of his estate should go to bis daughter andherheirs forever. His daughter to be educated liberally out of the estate. The widow of the said Daniel Heyward proved his will, and qualified thereon as executrix; and some time in the year 1799, intermarried with Mr. Nicholas Cruger, complainant in this cause.</p> <p>Mr. and Mrs. Cruger have filed their bill against Mr. Thomas Heyward, the executor, for an account and settlement of the rents and profits of the Varnezober estate, from the death of the testator to the time of the delivery of the plantation and slaves to his son Daniel, which took place three months before he was of age, in Feb. 1795.</p> <p>The bill also insists, that on the death of Benjamin Hey-ward, (in Sept. 1796,) under age, and without issue, the Callewashie estate vested in the representatives of the grandson Daniel, according to the provisions of the will of the grandfather; and that the said Thomas Heyward, the executor, is accountable for the rents and profits from the death of the said Benjamin.</p> <p>The bill further insists, that on the death of the testator’s son Daniel, without issue, the Cole’s Island estate which was devised (on that event occurring) to and among the heirs of the testator’s sons Thomas and William, became the property of the children of William Heyward* and of Daniel, the only child of said Thomas, who was in existence at the death of testator’s son Daniel, and the executor is accountable for the income of the estate.</p> <p>The bill prays for an account and for relief, according to the rights of the complainants.</p> <p>The defendant Thomas Heyward, in his answer, admitted generally the facts charged in the bill, with respect to the execution of the will and codicils stated, by his father Mr. Daniel Heyward, deed, and as to the members and state of the family. He stated that he had taken and held possession of the estates; but had given up the possession of Varnezober’s to his son Daniel (the devisee) in the autumn of the year 1794; and that Daniel had drawn all the profits of the crop of 1794, as well as of 1793. That his said son BanicT never required an account from him, and he believes never would have done so ; and if he "had, the defendant believed there would have been little or no balance due to him, because the plantation had been ruined and broken up by the war, and re-established slowly, and at great expense after the war ; and because the defendant had paid all the expenses of the estate, as well as of his said son Daniel’s education and support. That he took no discharge from his son, for he had never taken one from his younger brothers, when he delivered up their estates to them. The answer admits that the defendant’s son Daniel died at the time stated, and left in full force his will, as stated by complainants ; and that his widow qualified as executrix, and has since intermarried with Mr. Cruger.</p> <p>That Benjamin, the youngest child of defendant’s father, died in Sept. 1796, under age, and without issue ;— whereby a difficulty arises as to the Callcwashie estate.— That said estate having been devised by defendant’s father in case of Benjamin’s death without issue, to the said Daniel, (son of the defendant) and he having died in Benjamin’s life time, a question is made, whether the said estate vested in the heirs'of said Daniel, or in the surviving- resT duary legatee.</p> <p>That the Callcwashie estate having been given in the first case to Benjamin, the income was employed for the use of Benjamin during his life, and abalance is due to defendant from the estate.</p> <p>The defendant denies that the heirs of his son Daniel are entitled to any part of the estate which had been devised by defendant’s. lather to his own son Daniel, and on the event of his death, without issue, (which had happened) to the heirs of testator’s sons Thomas and William : because the maxim of law is, that nemo est hares vvoenús ; and defendant’s son Daniel dying in the life time of defendant, neither be or bis representatives are entitled.</p> <p>Mr. N. Heyward’s answer admitted the will of his fa* ther Mr. D. Heyward, and the facts stated in bill of complainants ; but denies the claim of complainants to the Cailewasliie estate, and the crops thereof, as the limitation was too remote, and could not take effect in law; and that the death of Daniel Heyward, junr. (^grandson of testator) during the life of Benjamin Heyward, prevented said devise from taking effect, and the said estate sunk into the residuum of the testator’s estate, and passed under the residuary clause to this defendant; or became on Benjamin’s death without issue, the property of his surviving brothers and sisters.</p> <p>Mr. and Mrs. Brailsford, (she being the testator’s daughter MariaJ in their answer admitted all the facts ; and they set up a claim to a distributive share of the slaves bequeathed, with the Callewashie plantation to Benjamin Heyward, and in the event of his death, under age, and without issue, (which occurred,) then over to testator’s grandson Daniel. They insisted that the estate vested in Benjamin, and that the limitation over to Daniel was too remote and void. Consequently on Benjamin’s death, the negroes are distributable among Benjamins surviving brothers and sisters, of whom Mrs. Bradford is one.</p> <p>The defendant Thomas Heyward has not pleaded any release inbar. He has none; and he must account for the rents and profits of the Varnezober estate; and he cannot charge tlil expense of his son Daniel’s maintenance and education, as he (Thomas) was able to educate him out of his own estate. % Bro. Ch. Case 387. Hughes and Hughes.</p> <p>The next question relates to Callawashie, and the ne-groes attached to it.</p> <p>The word ii, used in this will, is the word that ninety nine men out of an hundred would have used. In almost $1 the devises, he attaches the negroes to the lands.</p> <p>The testator has also used the word it, carrying lands and negroes to Daniel, in the case of Vamezober’s.</p> <p>then “ it” has the extensive meaning of carrying ne-groes and lands in that case why not in the case of Calla-washie. It is the same, phrase.</p> <p>There is no other clause, in the will, where “ ¿í” occurs, except in these two cases; and these are the only cases of single plantations.</p> <p>The next point is, whether the limitation over Calla* washie, and the negroes to Daniel, are too remote. The intent must guide, if consistent with rules of law. Fearne, 4th Ed. 371, on Con. Rem. The words of the will must be construed to mean,* “ a dying without issue, living Benjamin,” at least as to personalty. See also Fearne, 356 — Courtis enclined to lay hold of any circumstances to confine the dying without issue, to dying without/ issue, living at death of devisee. 2 Fonb. 93. The court anxiously hunts for circumstances to tie up the dying without issue, within the permisible limits.</p> <p>There is no real difference between dying without issue, and dying without leaving issue, and the cases which distinguish them, are frivolous. For the construction of the ivords, “ dying without issue,” see these cases; 1 P„ Win’s. .564', Pinbury v. Elkein. Ibid, 432, Target ,v. Gaunt. Ibid, 534, Hughes v. Sayer. • Ibid, 666, Forth v. Chapman.</p> <p>■ The same words used in the same will may be construed differently, as to real and personal estates. There are sufficient words of restriction in this will. Fearne 355. If the devisee dies under 21, then the testator gives it over, ibis is a good limitation ; and the 21 years makes no difference. Fearne 359. The word then, is sufficient to restric. But there are cases contrary to this. 2. Atkins, 308. Beaucierk v. Dormer.</p> <p>If the court construe the word “ then” as sufficiently restrictive, it will give entire operation to the will. If' otherwise, not. 1 Bró. Ch. C. 188,190. Bigge v. Ben* sley, was decided against the Chancellor’s opinion, and jjelded to the authority of Lord H. in Dormer v. clerk. He does not rely solely on • the word then. But on other words of the will. 3 Burr. 1622. The intention is to prevail, if consistent with the rules of law. 3 Burr, 1634. In construing a will, the words supplied must be to support the intent; not to the defeat.</p> <p>In 1 D. and East, 593, Judge Ashurst’s opinion was, that an express legal limitation is conclusive. But if it be Only by implication, then' the court may follow the intent. 3 P. Wins. 259. Atkinson v. Hutcheson.</p> <p>In the case before the court, there is only an implied estate tail in Benjamin.</p> <p>As to Callawashie itself, the will contains a good devise over. The Statute de donis is not of force.</p> <p>It is then a fee simple, conditional at common law, in Benjamin. It will then go over to Daniel. 2 Black. 109, doctrine of fees conditional at common law. Benjamin having a conditional fee, he might have made it absolute ; but did not. The testator, if the condition was not pei-formed, might enter. Testator has given over to Daniel, this right of entry, and he takes it, and his representatives are entitled to hold. See Powell on devises, 31.</p> <p>The residuary devisee cannot take; for the words rest, residue, and remainder, are relative terms, and mean what was not given.</p> <p>The next point relates to the devise of Cole’s Island, or Russell’s, &c. &c. to his (the testator’s son) Daniel and the heirs of his body, male and female, as expressed in the will. “ But in case of no such heirs, then the said land between the heirs of my sons Thomas and William for ever, and also the slaves.”</p> <p>The word “ heirs” in this will is synonimous with children.</p> <p>His use of the words “ male and female heirs,” shews he meant children, not heirs at law, in the technical sense.</p> <p>JS the words heir at law are meant technically, then the daughter of, Daniel, the testators grandson is the heir at law of the original testator.</p> <p>The children living at the death of Daniel Heyward, the testators son, are the persons truly entitled.</p> <p>The last clause of the will shews in what sense the testator uses the word heirs. The income is to be improved, for his “ heirs,” by which he meant, children. 1 P. Wms. 564, Pinbury v. Elkeins. . Limitation over is good in this case.</p> <p>Estate directed by the will to be divided among the children of Thomas and William. These words form a sufficient limit. ' Fearne, 368. Keily v. Fowler.</p> <p>To extend it beyond these would make the limitation too remote and void. Therefore the court will construe it living at the death of Daniel, the son; to let in Daniel the grandson.</p> <p>But if the court thinks the limitation of Callewashie as to the negroes, was too remote, then the estate vested in Benjamin: And if so, is distributable, and complainants are entitled to a share. Fearne, 345, Con. Rem. Ibid, 368, Beauclcrk and Dormer. Ibid, 374.</p> <p>Mr. PARKER also argued the cause, but I have no accurate note of his argument.</p> <p>argued as follows:</p> <p>The questions which arise, ai*e the following :</p> <p>1st. Respecting the devise of Varnezober’s on. Savannah river, and the slaves thereon, to testator’s grandson Daniel. An account is demanded of the. rents and profits. Are the complainants entitled ?</p> <p>2d. The devise by the codicil of 15th July, 1777, whereby testator gave Callewashie, and the slaves, &c. thereon to his son Benjamin ; but in case he died without issue, then he gave it to his grandson Daniel, and his heirs for ever — Who are entitled, on Ben’s death without issue, to Callewashie and the slaves ? ,</p> <p>3d. The devise by the codicil of 28th July, 1777, whereby testator gave his tract of laud originally granted to Stephen Russell,, (called Cole’s Island) to his son Bank-1, under the same limitations as he had given other property to ° i said son Daniel, by his will: also the negroes thereon.</p> <p>"Who are entitled under this clause ? As. to the fast question, we admit the devise to the grandson Daniel oi Varnezober, and the slaves. And we admit that defendant Thomas Heyward qualified and acted as executor.</p> <p>We state the circumstances which prevented crops, and the improvement of Varnezober ; the delivery of the property to the grandson Daniel, and his acquiescence, without an account. The answer explains the causes of this acquiescence. They were, because of the injuries done to Varnezober by the enemy; and of its desolate and unproductive state, and its renovation by T. Heyward.</p> <p>2d. The second question arises respecting Calewashie, and the negroes thereon, and the crops thereof, since Ben-jamins death.</p> <p>The complainants claim being for Callewashie and the negroes and the crops — let us examine by the words of the devise,</p> <p>1st, What was intended to be passed ?</p> <p>2d. Whether if intended to be passed, the limitation is not too remote ?</p> <p>3d. Whether Benjamin had not such a vested interest, as gave him the crops ?</p> <p>1st. The words are to his son Benjamin, Callewashie, with all the slaves-, &c. thereon. u But in case he die without lawful issue, then I give it to my grandson Daniel, his heirs and assigns for ever.”</p> <p>The word it, clearly refers to Callewashie, and to that alone; to read it so, it is correct and proper. To make it refer to land and negroes, would be extravagant. The mere force then of the word it, does not carry the negroes,</p> <p>If this reasoning be correct, then the complainant must resort to some supposed intent. It may be argued that he considered the negroes attached to the lands, and so meant 'them to pass by the word it, with the land. But we hare no reason to think so. For in many of the limitations over, he separates the lands and the negroes. See the w^> an(i particularly the limitations over. And where he does not separate them, he gives them distinctly, naming both. See instances in the will marked ; and there is only one instance to the contrary.</p> <p>The law does not give such enlarged meaning to words so limited.</p> <p>A gift of the “ overplus of the estate,” to a man’s wife, carries only the personal estate, 2 Eq. Ca. Abr. 320, sec. 7. A man possessed of 5 messuages, devises 4 of them; and all the overplus of his estate to be at his wife’s disposal. The 5th messuage did not pass. 2 Eq. Ca. Abr. 320, sec. 8.</p> <p>A devise of all goods, do not pass books, jewels, pictures, &c. 2 Eq. Ca. Abr. 322, sec. 12.</p> <p>A person seized of lands in fee in A. and possessed of á, term for years in B. devises all his lands, tenements and real estate in A. and B. to C. and his heirs. This will not pass the term. 2 Eq. Ca. Abr. 326, sec. 34. 3. P„ Wms. 26, Rose v. Bartlet, Cro. Car. 293. Chapman v. Hunt. 1 Vesey, 271, 2, 3.</p> <p>2d. If it was intended by the testator to pass both land and negroes to his grandson Daniel, whether the limitation over is not too remote for either or both ?</p> <p>A personal estate was devised to A. and in case she died without issue, then to B. Resolved that the devise over to B. is void, and the whole decreed to A.</p> <p>2 Eq. Ca. abr. 322. Sec. 10.</p> <p>Devise to one and his issue, or to one, and if he die without issue, remainder over to another, the devise over' is void ; and the whole vests in first devisee.</p> <p>Ibid, sec. Í4; see sec. 30, 1, p. 325; see. 39, p. 327.</p> <p>The word “ issue,” takes in all issues in infinitum. J Vesey, 200, 1, 2.</p> <p>When once an estate, (which in real estate would be an estate tail) vests in the first taker, that instant all the sub* sequent limitations became void, t T*. 'Wms. 98- Frc. note (1) to case of Higgins vs. Dowler. See 4 Vesey, jun. 7Í7. See the case of Beauclerk vs. Dormer. 2 Atlc. 308 and 376. 1 Burr. 272, 3. 1 Vesey, jun. 286, Everest vs. Gell. 3 Vesey, jun. 99, (in point,) Chandless vs. Price. 2 Bro. C. C. 33, Glover vs. Strotoff. Fearn. Ex. Devises, 167,230,249. 2 Fonbl. 72, 81, 2.</p> <p>It is a rule that when a contingency is limited to depend on an estate of freehold, which is capable .of supporting a remainder, it shall never be construed to be an execu-tory devise, but a contingent remainder. Fearn. Ex. Dev. 16,17, 203, 5.</p> <p>Executory devises are essentially different from contingent remainder, 50, 1, 73, 7, 8, 9.</p> <p>Limit of executory devises as to real or personal, 82.</p> <p>Wherever an executory devise is limited to take effect, after a dying without heirs, or without issue, subject to no other restriction, the limitation is too remote and void.</p> <p>Fearn. Ex. Dev. 116,144, 154,167,171,4.</p> <p>Exceptions to the rule, 179, 180,182, 1S6, 187, 8, 190, 1, 197,200.</p> <p>The words of a will must be read with reference to the rules of law. Fearne 243.</p> <p>The principal cases for complainant are 3 P. Wms. 262, Atkinson v. Hutchinson. 1 P. Wms. 98, Higgins v. Dowler. 1 P. Wms. 663, Forth v. Chapman, Ibid, 747, Pleydall, See note, p. 750. But they do not apply, 'or have been overruled by other decisions”</p> <p>If as I have contended, the testator did not intend to pass the negroes by his codicil to his grandson Daniel, or the words do not pass them, or the limitation is too remote, then arises the question — did the estates vest in Benjamin, and on his death, are they now distributable among Thomas, Nathaniel, William’s children, and Mr, and Mrs. Brailsford; or do they pass by the residuary1 clause to Mr. Nathaniel Heyward ?</p> <p>See 4 Vesey, junr. 708-9. 716. Brown vs. Higgs.</p> <p>“ General residuary clause passes all that is not sufficiently disposed of, asinca.se of lapse,” Testator has given to the residuary legatee all that is not sufficiently dispe'í sed of.</p> <p>A leased house, the bequest of which being to a charity, fails, passes under a general disposition of the residue, and does not belong to the next of kin as undisposed of.— See 4 Vesey, jun. 732-5. Shanly vs. Baker.</p> <p>A legacy out of the produce of Copyhold estate, directed to be sold, failing, was held'to pass by the residuary clause against the heir. 4 Ves. 802, Kennel vs. Abbot.</p> <p>Residuary bequest of personal estate includes every thing, as a void legacy or one lapsed. 1 Vesey, 320-1-2. Durour vs. Motteux.</p> <p>But it may be objected that these cases all go on the ground of a total failure of the legacy. Whereas there was a disposition which took effect, that the estate (Calle-washie and negroes) was vested in Ben; and it is only the limitation over to Daniel, which is too remote and void.''</p> <p>Answer — It is of no consequence how it fails. The devise and bequestto Benjaminhad ran its course. He had but a life estate in the first disposing part. The very claim of the next of kin is, that the limitation over has failed— therefore they claim. But the law is, that on failure of A legacy, the residuary legatee takes. (Sed vide, the cases which say the first taker of personal estate, takes all.)</p> <p>As to the crops and income of the Callewashie estate, •from the death of the testator to the time the contingency happened, and the estate vested, they clearly belonged to Benjamin, or at least he was entitled to a maintenance out of the income. It was a devise from a father to his son, and that son had no other maintenance or means of support. The court would have allowed the income to be so applied, if requested, and it will sanction what has been done by the executor. Even in the case of parents who are bound to provide for their families, the court will authorize the education and maintenance of a child out of the estate devised to him, if the father be incapable of doing it.</p> <p>But Benjamin had no father living, nor no other estate, ihe income of wbicb could be applied to bis use during his ■minority. It would be very bard to starve him who was the direct object of the devise, for the remainder man. In such a case the court will be anxious to relieve Benjamin, See 1 Wilson, 140. 4 Bum’s. E. L. 314. 1 P. Wms. 783, Acherly vs. Vernon; 2 P„ Wms. 21, Harvey vs. Harvey; 1 Bro. P. C. 228. 1 Bro. C. C. 119, 298. 2 Bro. C. C, 75. 3 Bro. C. C. 90,471. 3 Bro. P. C. 337.</p> <p>The devise over is not an invincible objection to Benjamin’s taking the profits. 2 P, Wms. 21. 2, 419, 504. 2 Atk. 473. Amb.448. 1 Bro, C. C. 82. 1Q4. Main-iainence is so much regarded that the principal is sometimes allowed to be broken in upon, 1Yern. 255. 2 P« Wms. 22.</p> <p>We come now to the third great question.</p> <p>The consideration of the devise of the land, (Cole’s island) and the bequest of the slaves thereon to the testator’s son Daniel, by the codicil of 28th July, 1777. The words are — “ my island or tract of land, (called Cole’s, island) originally granted to S. Russell, I give to my son Daniel, in the manner mentioned in my above said will, together with the slaves, stock, &c.”</p> <p>This refers us to the words of the will, where the testator disposes to his son Daniel as follows—</p> <p>“ I will to my son Thomas, in trust for my son Daniel, during his naturallife, the use of the following land, slaves,, stock, &c. thereon, and thereunto belonging ; and at his death I give them to be divided by my executors hereinafter named, the land between the male heirs of his body lawfully begotten, and for want of such, between the female ; and the slaves, &c. between both male and female, and their heirs for ever, viz. One tract of land or island, called Callewashie, containing 550 acres, (various other tracts) ; one Mustee fellow Dick, and one fellow Jemmy, with one fourth of stores and lot at Cook’s landing, Oaketty; but in case of no such heirs, then the said land between the heirs of my sons Thomas and William for ever; and also the slaves.”</p> <p>The son Daniel having died without leaving issue, the property will go under the said clause of the will.</p> <p>We insist that the complainants cannot take, as representing the grandson Daniel; for he cannot be considered the heir of his father whilst living. Nemo est hares vú ventis. 2 Bla. Com. 169. See the cases on this point. — - Fearn. Con. Rem. 3S9. Fearn. Ex. Dev. 77, 8,9. 1 Co. Rep. 66. Archer’s case;</p> <p>A devise to Robert, remainder to the next male heir of Robert, and to the heirs male of the body of that heir male. This is resolved to be a contingent remainder during the life of Robert.</p> <p>Now there was more designatio personce in this case than in Mr. Heyward’s, where there can be no pretence of a designatio persones. Co. Litt. 246, Fearn. Ex. Dev. 18,22. See 2 Fonbl. 72, 77,80, 93, 149, 73. Fearn. Con. Rem. 3?9, 392, margin 456. 1 Inst. 378.</p> <p>Remainder may fail as to one moiety, and be good as to another. Fearn. Con. Rem. 391, 2, 3, 394, 5,6.</p> <p>Where goods are devised to A. for life, and after her death to the heir of D. he who was heir of D. at his death, is entitled. 1 Vernon, 35.</p> <p>For cases of designatio persones., which prevent the operation of the maxim, nemo est hares viventis. See 2 Ven-tris, 313. 2 P. Wms. 340,1, 2.</p> <p>It turned on the words “ now living.”</p> <p>If we should be answered that though Mr. Daniel Hey-ward, jun. could not be the heir of his father Thomas then living, and who has actually survived him, these words of the will may be construed into a designatio persona, and he and they claiming under him, may take in this way.'</p> <p>We reply that the cases decided are totally unlike this,. The testator did not intend it so, for he has made many such limitations in his will, where the persons spoken of had no children living. In the case of William, he limits in the case of his dying without heirs of his body, his estates to the heirs of his sons Thomas and Daniel — axu^-Daniel had then no child, and never had any.</p> <p>ín the case of testator’s grandson Daniel, he limits, in case he dies under age, the real and personal estate given him to the heirs at law of his son Thomas, when they Should attain 21. He knew then that Thomas hadno other child than Daniel. Thus it appears to be used by the testator as a general phrase, and not as a designatio ■persona. And the maxim applies, “ nemo est hcsres vi* ventis.”</p> <p>On examining the cases where by a designatio persona, the maxim, nemo est hares viventis ceases to apply, it will be found that there is something very special in them all.</p> <p>In some it will be found that the words, “ heir now living,” qualified the case. 2 Vent. 313,311. 1 P. Wms¿ 229.</p> <p>In others a provision was intended expressly for children, and the words “ heirs of the body” have been construed children. 2 P. Wms. 340, 1, 2.- See also 1 P, Wms. 229, 233. 2 Bla. Rep. 1010.</p> <p>In this particular case the testator says, “ but in case of no such heirs, then the said land between the heirs of my sons Thomas and William for ever, and also the slaves.”</p> <p>That he did not mean to designate Thomas’s son Daniel by the words “ heirs of my sons Thomas,” is evident from this, that he uses the same words with regard to William, who was then unmarried, and had no lawful issue. And so in another clause,w between the heirs of my sons Thomas and Daniel.”</p> <p>Another circumstance to shew that testator, when speaking of his son Thomas’s heirs at law, had not a particular living child in view is, that in the devise of Varne-zober to his grandson Daniel, (son of Thomas) he goes on and says, that if Daniel dies under age, he gives it to the heirs at law of Thomas.</p>

<p>The Court may supply words omitted in a deed, providing for children, to give effect to the intention. But the intention must be clear, and apparent on the face of the deed. It would be too hazardous to insert words on conjecture that they were accidentally omitted.</p>

<p>Testator directs his funded stock to be kept till his youngest child should come of age, or marry; and then to be divided among his children that might be living, and his wife, if then his widow. A child born after making the will, is entitled to a share of the stock.</p> <p>Personal property bequeathed to a particular legatee on conditions, does not pass under the residuary clause if the legacy be refused; but is distributable as undisposed property.</p> <p>A son to whom some estate is loaned by his father to work and improve, and to receive the profits, is not accountable for the profits to entitle himself to a distributive share of the estate undisposed by his father’s will</p> <p>A child to whom a marriage portion is given, is not under the circumstances obliged to bring it into account to entitleherselfto ashare of the distributive estate not passed by her father’s will.</p> <p>In cases of partial intestacy, the doctrine of hotch pot does not apply.</p>

THIS was a bill filed to compel defendant to discover whether he had not purchased a house and lot of land in Charleston at sheriff’s sale, in trust for Zylstra’s wife and child ; on an engagement to repay defendant the amount which he gave at the sale. And if such trust should not be established, then to set aside the sale, as having been made irregularly; the sheriff having previously made sales of Zylstra’s property, sufficient to pay the executions.

<p>THIS was a bill filed to compel the specific performance of a parol agreement, for the purchase of a tract of land on certain terms alleged in the bill; and for the formation of a copartnership in establishing a brick yard on the land; and for an account of the profits from the labor of certain slaves placed on the premises by Askew.</p> <p>The bill also sought a discovery whether the defendant had not purchased certain slaves of Askew at Sheriff’s sale, in trust for Askew, on his being reimbursed the price given for them.</p> <p>The defendant in his answer denied the agreement as alleged in the bill, and set forth another agreement, which he insisted he had fully complied with; but t that Askew had altogether failed to comply with his part of the terms. The defendant also denied the allegation of an agreement for a copartnership in the brick yard; but admitted that Askew had some negro slaves on the place whom defendant employed as labourers; and that he was willing to pay a reasonable hire for them.</p> <p>At the hearing the complainant offered some parol evidence of the agreement as charged in the bill; which the court admitted, but without prejudice. It did not, however, fully support the allegations of the bill. Nor was there any satisfactory evidence of an agreement to enter» into a copartnership.</p> <p>There was no evidence that the defendant had agreed to become the purchaser of the slaves sold by the sheriff A J in trust for Askew. The sale was proved to have been a fair one, and that defendant became the purchaser on his own account.</p>

THE bill stated that James Fisher and the other gentlemen above mentioned, formed a company, called “ The South-Carolina Insurance Company,” for the purpose of insuring vessels and cargoes. And being so associated made certain articles of agreement, the original of which is in the possession of defendants.

THE bill filed in tbis case was to set aside an agreement entered into by the complainants, with the defendants, by which it was stipulated that all the suits against the underwriters in the policy of insurance in the case then in dispute, should be determined by the decision which might be made on one of them ; and thus to enable the complainants to have a trial on all the cases.

THE bill was filed by complainants for the recovery of a legacy bequeathed by Henry Laurens (formerly president of Congress) to his grand daughter, Frances Lau-rens, the only child of his eldest son, Col. John Laurens, deceased. He directed that the legacy should be paid her, on attaining 21 years, or day of marriage; and should bear an interest of five per cent.

THIS was a bill for the specific performance of a contract for a tract of land alleged to have been made by the complainant Philip Givens, as the agent of the late Mrs. Agnes Kelsal, with. Dr. Calder, since deceased.

<p>The complainants hill Was for a discovery and account. Theychim-ed under a voluntary deed of gift, to a neice. The defend-nt relied on a release, and a receipt, of a later date, as full settlements of the estate.</p> <p>It was in proof that no indnej- was paid at the time o f signing the re . lease and receipt, and no i.ctu u consideration was established ; which reduced the c„se to a question between two volunteers. Decreed that the first deed should prevail, and defendant to account for the estate.</p>

<p>A mortgagee agrees that the mortgagor should sell to a third per-, son part of the mortgaged negroes at an advanced price, and receives the purchase money, for which receipts were given, as of payments made on the debt due by the mortgagor. This is such a privity of contract between the mortgagee and the new purchaser, as releases, the negroes so purchased and paid for, fi'om the operation of the mortgage, though the remaining negroes are insufficient to satisfy the balance of the debt due by the first purchaser on the mortgage.</p>

<p>The Court of Chancery will decree alimony in proper cases; huta widow is not entitled to recover alimony or maintenance from the estate of her deceased husband, after living many years separate from, him, without suing in his life time. The demand does not survive, though the separation was at the desire of the husband, and against her inclination, and there was no fault in herconduct alleged against, her; and he never maintained his wi<e or child during his life, and made no adequate provision for them by his will: and though sliefor-hove to institute suit for ; ¡imm. < in her husbands life time, to prevent violen.ee between him, and iter relations.</p>

Bill of Interpleader. CATHARINE ASHBY being possessed óf a real and personal estate, died in Sept. 1802. intestate, unmarried and without issue, leaving alive many relations, to wit; Mrs. Lowndes and her brother and sister, who were cousins of the whole blood, by the paternal -Ijne, to the intestate.

ÍHÍS was a bill filed by creditors for an account and discovery of the estate of Samuel Adams, deceased ; and to set aside certain deeds from said Adams to Rebecca Kelly, on the ground of their being voluntary and fraudulent, to the prejudice of creditors. There were three bills of sale, bearing date the 18th of , . , ~ i a i August, 1794, by which the said Samuel Adams conveyed away nearly all his property to Rebecca Kelly, His will was also executed on the same day.

THE bill for discovery and distribution, sets forth that Magdalene Ashby in bill mentioned, being entitled to one third of the estate real and personal of John Ashby, her deceased husband, who departed this life some time in the year 1793, the said Magdalene did make her last will and testament in the year i8oi 5 by which, amongst other things, she gave and bequeathed unto her sister Floride Peyre, and unto her niece Floride Taylor, all her part or proportion of the koncjS;¡…

THE bill was Fil'd to obtain relief against the liability of the complainant, on three bonds, executed by him, to-gethef^rith Daniel Bourdeaux, and rs his^security to the commissioners' of the treasury. The bill states, that on the 5th day of-1787, complainant entered into three bonds'as surety to Daniel Bour-deaux, now deceased, payable to P. Bocquet and J. Mitchell, thetreasurers and their successors.^ office.

<p>A person possessing himself of the estate of a female orphan rela* tion during the war, when there was no American government or civil authority to grant letters of administration, will not be considered as a trespasser, or executor de son tort, but as a trastee acting for the best; and will be allowed, commissions on his accounts.</p>

JOHN DEAS,jun. died on the 20th October, 1790, possessed of a considerable real and personal estate, leaving alive his wife Maria Deas, andan infant son, John Seaman Deas, and his wife pregnant of a child, who was born soon after, and proved to be a son.

<p>A copartner talcing money out of the funds of the copartnership, and carrying it into a new concern or trading house, and that becoming bankrupt, the fund cannot be followed specifically, so as to give the former copartnership apriority over the other creditors of the bankrupt house.</p>

<p>Administrator and heir may compel his co-administrator and coheir to account; and the court will not on slight grounds presume' that settlements have been made; or that parties have abandoned their rights. Some partial settlements not conclusive, that all trails-actions have been settled.</p>

<p>THE case made by tbe bill was this — that tlie defendants, together with their brother Glen Drayton, were the sons and executors of John Drayton, deceased. That in the year 1779, they divided the estate of^.heir testator amongst themselves, each taking one third part. That one pari of the property so divided, was a house in Dread-street, which they sold for the purpose of division. That 3pi. Chanler became the purchaser, and gave bis three bonds for the purchase money, secured by a mortgage of the property ; and each executor took one bond to him - self as bis portion or share of that property. That Glen Drayton was indebted to William Smith Sc Co. on a bond dated 7th March, 1783, for 720/. 7s, on which, judgment was entered up 17th Oct. 1791 — --execution issued in May, 1792, and levied by sheriff Posted on a large gang of negroes held by G. Drayton. That complainant became administrator of William Smith, to whom G. Drayton owed sundry monies on accounts- — these were liquidated with complainant, and G. Drayton gave his bond, dated 17th May, 1792, for the further sum of 684/. 11s. 4d. and confessed judgment thereon 27tb May, 1792, on which execution was issued and levied in like manner as above. On the faith of these levies, and at the strona solicitations of G. Draytoii?: and repeated promises of payment, a series óf indulgencies were granted him. As a further security, he deposited with, complainant one of the above bonds, made payable to the three executors, being the one that had fallen to G. D. on the division, which bond was for the sum of 130Si. 4s. which bond the said G. Bray-ton then alleged was exclusively his own, and on which it appeared he had received sundry payments from Dr. Chanler. That cbmplainant gave notice to Dr. Chan-ler, and believes the transfer was known to the defendants| that no objection was ever made. That G. Drayton had for many years held a large real and personal estate as his own, which was never questioned by his brothers, on the faith of which, creditors had extensively trusted him. — ■ That in the year 1792, the defendants filed a bill against the judgment creditors of G. Drayton, stating that the brothers had divided the estate, on the mutual principle that each one was to pay his own share of the debts. That G. Drayton had involved himself extensively, and his creditors were about to take the property obtained ' from his father’s estate under their executions : and this court, at their instance, granted an injunction to restrain the private creditor's : that defendants then let the business rest for years, and suffered their brother, G. Drayton, to make Crops and use them. That complainant employed counsel to urge his particular claims, but was told at a late stage of the cause, that not being named a party, he could not be heard except on an original bill; and the court proceeded to decree in that case, that all the lands that had been bequeathed by the testator to his son John, and which were directed to be sold in the event of his death, and whichr-had been sold by the executors, shouldbe re-sold by the executors under the directions of the master; which decree comprehends the aforesaid house, and the bonds takeq from Dr., Chanler for the purchase of it, and operates to cancel the bond, so as aforesaid transferred to complain*ant. That the said decree goes to defeat the creditors of G. Drayton, and the legal liens they had obtained: and although the court did not consider such claims as sufficient to bar the remedy of the creditors of John Drayton the testator, and the minor heirs of his son John, yet that those objects are duly, provided for: and therefore the court ought to hold the defendants shares of the estate answerable for the re-imbursement of G. Drayton’s ere* ditors, who ought not to be sacrificed for defendants safety ; as they being executors, fully assented to the division, and to G. Drayton’s holding his own share, absolutely, and freely incumbering it. And especially, that they ought to be decreed to indemnify complainant for, the rescisión of the sale to Dr. Chanler at their instance, so as to make good the amount of the bond that had been transferred by G. Drayton by their sanction. That this was the security for indulgence, and complainants might have sold the negroes levied upon as other creditors had done, and the property would have been out of the reach of the defendants, and the debts have remained upon them.</p> <p>The defendants in their answer, admit that the debts stated to be due from G. Drayton to complainant, may be truly due.- Also that indulgence might have been given, but not at the request of defendants. They admit that the bond of Chanler was allotted at the division of the estate to Glen Drayton, being his share of the sale of the house in Broad street. Also that G. Di'ayton received payments thereon, and that he deposited the bond with complainant, tho’ defendants do not know for what purpose j but believe it may have been about the time and for the purpose in bill stated. But they own that at the time they divided and allotted the bonds, they did believe that each was entitled to one third of the house. But this court in March, 1793, in the case of the heirs of John Drayton the younger, against those defendants, determined that each was entitled to only one fourth, and defendants did not then know of the transfer of the bond to the complainant, nor for a long time after, but it was kept a profound secret from both. That their bill was filed for an injunction, 3d. July, 1792, and the time of depositing the bond inNovember, 1792. That defendant Charles Dray-ton found it out by applying for it to secure himself when G. Drayton informed him he had parted with the bond. That he was his surety for 3000 guineas, which he has been obliged to pay, and was as ignorant of his circum • stances as the rest of his creditors.</p> <p>That the debts due to complainants were contracted in 1780,1781 and 1782, long before the bond was in existence, and could riot be contracted on the faith of it, and that the execution could not bind it. As for not restraining G. Drayton from taking the crops during the long pen-dency of the suit, it Was not advised by counsel, probably from not deeming the crops liable to his-proportion of testators debts. That the bill and answer were lost fot several years, and the creditors might equally have taken measures to urge the suit. That complainants case is not stronger than those of the other creditors of G. Dray-ton, concerning whom the court have already decreed; and as to the bond, complainant could have no more than an equitable claim, nor stand in a better light than G. Drayton himself, who could have no right until his proportion of his fathers debts was paid. That at all events his proportion of the house was only one fourth instead of one third, and he has probably received that amount in the payments that have been made to him on the bond. That this court having determined that the sale of the real estate including this house, was void, the bond and mortgage must be so too.*</p> <p>íhis case was argued by Mr. Fono and Mr. Wk. L* Smith for the complainant, and by Mr. Parkeh for the ¿efendant. But as the grounds of argument were similar</p> <p>,to those used on either sid,e in the case of the executors of J. Drayton v. G. Drayton and others, £Ante, vol. 1, p. .557,562 ike.) it is deemed unnecessary to detail them here.</p>

<p>THE.bill states, that in May, 1794, the complainant Charity Forrest, (then widow ofR. Lushington) being about to intermarry with George Forrest, had a deed of Settlement made, dated 8th of May, whereby her real and personal estate were conveyed to William Mason, (since deceased) and Thoma.s Karwon, as trustees, the particulars of which personal property were stated in a schedule annexed to the marriage deed, to which her said husband was a party, and in which the full power of holding and disposing was reserved to complainant as will appear by the deed itself. That tlie marriage took place 14th May, 1794. Among the articles of personal property settled, there were forty eight shares of bank stock, in the South-Carolina Bank, standing in the name of complainant, Charity Lushington. On these shares her brother in-law, Daniel Latham, drew the dividends for the year 1793, by virtue, of a power of attorney from complainant. That the said George Forrest went to the bank, and without any power from her, drew the dividends for 1794, 1795 and 1796. That from the marriage and during part of the year 1797, the said George Forrest was in good credit, and supposed to be affluent. That in the month of May, 1797, he suddenly left this state, and no certain accounts of him have been since had. Numerous attachments have been issued by his creditors, and all his property has been seized and sold. That complainant was ignorant of his circumstances, and being abandoned in a distressful condition, she claimed against the attaching creditors, the said bank shares, supposing them to be amongst the papers and property taken possession of. That she afterwards heard that Isaac Peace, one of first attaching creditors, had laid claim to the same, as being included in 100 shares in the said bank, which George Forrest had transferred to him by an assignment, dated 27th November, 1796, in payment of some debt, but that they had not been delivered, the said G. F. having previously lodged them with other certificates in the office of the Charleston Insurance Company, of which he was a member, as a pledge, agreeably to their rules. That the deposit, as well as the assignment, were without the authority of complainant, or her trustee. That complainant learnt afterwards that James Warrington laid claim to 45 of the said bank shares as assigned to him by a deed subsequent to that to Isaac Peace : and complainant hath understood that the said 45 bank shares,- with other stock, hath been delivered by the president or some other officer of the Insurance Company to the said James Warrington, in consequence of the claim by him so made. That the assignment made to the said J. Warrington by the said G. Forrest, was without the authority or assent of complainant or her trustee. That application hath been made to the said James Warington, while in this state, andtohis agent James Bulgin, since his departure, to deliver up the said bank shares, which they have refused, claiming property therein. The bill proceeds with divers charges, that defendant Warrington knew that G. Forrest was under the pressure of great difficulties, and availed himself of his necessities to get from him the stock he possessed at a great under value. That the consideration consisted of advances of money at an usurious rate of interest — that he knew the stock belonged to complainant as it stood in her name, and that the transaction was not fair and bona fide, and prayed that he or his agent, or the Insurance Company, might be compelled to restore the said Bant Shares.</p> <p>The defendant, James Warrington, filed a plea and answer. To the relief sought by the bill, he pleaded, that after the marriage between the complainant and George Forrest, and when he was in high credit, and reputed to be wealthy, vvz : Sept. 1797, he pretending to be possessed in his own right, of and in the bank stock in bill mentioned, and sundry other stock in the same bank, and public stock of the United States (in plea set forth) all of which was deposited in the Charleston Insurance Company, subject to its controul, according to its rules and regulations* in consequence of G. Forrest being a proprietor of one half share of stock in that company, and pretending to have good right and full power to sell and transfer all the said stock, together with his share in the company, applied by his agent David Denoon to this defendant, and proffered to sell and transfer all his said stock and interest to the defendant for $ 6250, the defendant to come into the Insurance Company in his lieu and stead. That defendant inspected the rules of the company, and found that every’ stock holder must deposit money, or stock tobe estimated at the lowest market price, to the amount of his capital share, and execute and deposit with such stock, ample powers of attorney, to sell and transfer the same, when by the rules and exigencies of the company it should become requisite. That on the 14th Sept. 1797, defendant applied at the Insurance Office for information, and was there informed by the clerk that the said G. Forrest held a half share, and shewed a specification of his deposit, amongst which were the bank shares in question, standing in the name of his wife before marriage, with several powers of attorney from G. Forrest, to sell and transfer the various stock, agreeably to the rules' of the company; and defendant concluded that the said G. Forrest was the lawful proprietor with full power to dispose thereof, as a member of the company, and the said company having agreeably to-their rules assented to receive defendant as a member in lieu o'f G. Forrest, the defendant, on or about tbe 7th October, 1797, did actually purchase from the said G. Forrest, for valuable consideration, (viz. $2650,) all and sin-guiar the stock so deposited, including the shares in bill mentioned, whereupon by indenture made the 7th October, 1797, (ready to be produced) the said G. Forrest reciting that he was possessed of all the stock (as specified in the deed, and the shares in question amongst the rest) and other funds deposited in the insurance company according to its rules and regulations, for the con-» sideration of $ 6250- paid,- did bargain, sell and assign all the said stock and shares to the said J. Warrington, together with his half share in the company, &c. That by force of the assignment, and of an election had in the company, the said J. W. was admitted and accepted a member for a half share, and afterwards as such paid $2125, on a loss in the company; and the said J. Warrington doth aver that at the time of executing the assignment, and at and before the time when he paid the consideration money,- and at and before the time of purchasing from the said G. Forrest, as aforesaid, he was without knowledge or notice of the marriage deed or settlement mentioned in the bill, and was an innocent and bonajide purchaser for valuable consideration, and without notice of the settlement or trusts in bill stated, and pleads the same in bar, of the relief prayed. And defendant answers (not waiving his said plea) that he does not know whether there was any power given to the husband to pledge the stock in said company, but submits that it was inferrible from the fact, that the said G. Forrest after the marriage always drew the diviclends, and from his having-possession of the original certificates. That the settlement all along lay concealed and not published on record- as the law requires, until long after the stock was sold, viz. 4th November, 1797. The defendant denies that the said G. Forrest was apparently in embarrassed circumstances, but was in good credit; or that the certificates or stock were bought for inadequate consideration or for money advanced upon usurious interest, and avers that the contract was in manner and substance fair and bona fide.</p> <p>For the complainant were cited, 1 Eq. Cas. ab. 68. 1 Vern. 161. 3 Ves. jr. 469. 5 Ves.jr.SlS. 3 Atk. 20. 4 Bro. 139. 1 P. W. 459. 1 Atk. 280. 2 Ves. jr. 680. 4 Bro. 339. 1 Fonb. 96. 3 P. W. 197. 2 Fonb. 155, Solee v. Bezier, decided in this court. Also 2 Fonb. 155. 2 Ves. jr. 437,440. 3 Atk. 654. 1 Fonb. 314. 3 Ves.jr. 469. 1 P. Wm. 199.</p> <p>Mitf. 215. 2 T. R. 70. 1 Fonb. 164. 3 P. W., 280, 1. Act of Assembly of March, 1785, and Dec. 1792. 1 Wils. 26. 3 Atk. 156. 2 Ves. 666. 2 Atk. 275. 2 P. W. 237, 532, 607. 3 P. W. 196. 1 Vern. 1-8. Ca. Temp. Lord T. 186. 2 Atk. 207.</p>

<p>A. maíces a settlement before marriage, including-bis wifes fortune, and all his private property. The settlement was dictated by her uncle and guardian, who would not otherwise consent to the marriage, and who was ignorant of the insolvency of A. at the time. The creditors of the copartnership filed a bill to set aside the settlement as it respected his property as fraudulent and void against prior.creditors. There was clearly no actual fraud, arid the court íéfüsed to set aside tile settlement.</p>

THE bill was filed to obtain specific execution of a contract, for the purchase of a tract of land in South-Carolina, the contracting parties being partners. The defendant had given his bond to make titles to the land. The bill stated that in 1772, complainant and defendant were connected in trade; complainant resided in London, defendant, then and still in Georgia.

THE case made in the bill, was shortly this; that prior to 1792, D. Campbell, owed complainant sundry sums of money, and on the 12th July, 1792, Mr. Campbell executed a mortgage to complainant of a considerable number of slaves, and complainant going abroad, left Mr. Campbell his agent, and left in his hands said mortgage with his other papers. The mortgage was to have been recorded, but was not recorded, until the 28th February, 1804, when complainant returned to this state.

THE complainants set forth in their bill, that the said Elizabeth Hill, formerly Elizabeth Butler, was possessed of a considerable real and personal estate, and contemplating a marriage between herself and Duncan Hill, did, on or about the 3d December, 1785, by indenture tripartite, the said Duncan Hill consenting thereto, and joining therein, for the considerations therein mentioned, settle, convey, and assure all her estate to Angus M’Cleod and James Hamilton^ in trust for…

This was a bill to compelí defendant to account for the proportion of a certain vessel and cargo, in which the bankrupt was concerned, together with the defendant, into whose hands the whole had come.

<p>THE bill was filed in this case to obtain the judgment of the court, on a clause in the will of Daniel Heyward, senior, deceased.</p> <p>The decree states the case, and the question, so fully and clearly, that it is unnecessary to do more than furnish the decree itself,</p>

<p>THE object of thé bill was to establish the rights of complainant as executor of Munro to certain negroes,-which the said Munro had claimed in right of his ’ wife Lucretia.</p> <p>The case made is fully and distinctly set forth in-the' decree, and therefore is here omitted; ■</p> <p>The questions that arose were :</p> <p>1st. Whether the legacy to Jane Liddle, limited over after a life estate to the said Lucretia,- became lapsed by her death before the determination of the life es.tate ?</p> <p>2d. Whether the said Lucretia was bound to elect between her marriage settlement and the will of her husband David Youngblood ? And if so bound, whether her acts amounted to such election ?</p> <p>3d. What estate the said Lucretia had acquired in David Youngblood’s share of his brother’s estate ? The cause came to a hearing, and was fully argued.-</p>

XHE bill sets forth that complainant is the daughter of Benjamin Smith; that she intermarried some time prior to the year 1778, with the late Col, Barnard Elliott, and was at the time of her marriage entided to a considerable sum of money from the estate of her said father.

<p>Á conveyance of land for which no valuable consideration was given, decreed to be fraudulent and void against prior creditors.</p> <p>Although the defendant who was heir at law to the purchaser, in his answer, swore to his belief that the purchase was bona fide, and that a part of the purchase money was paid down in cash ; and although the bond for the balance was found among the purchaser’s papers alter his death, cancelled, and with receipts to the full amount endorsed; yet the sale was set aside as fraudulent, under strong circumstantial evidence, and some positive proof</p>

THIS was a bill filed to obtain education and maintenance for two of the grandchildren of the late Mr. Ralph Izard, out of his estate generally, under a clause in his will providing maintenance and education for some member of his family, and also to procure a fund for the support of those directed to be so educated and maintained.

THE bill of complaint stated, that the complainant Andrew M’Dowall of Carrickfergus in Ireland, is the only brother and next of kin to Alexander M’Dowall, deceased, who departed this life in the year of our Lord, 1799, in Charleston.

THIS was a bill filed to compel defendant to complete bis purchase of a tide saw mill near Cannon’s Bridge, on the neck of Charleston. He became the purchaser at a sale made at public auction. The terms of sale had been advertised in the papers.

THIS was a bill to establish a property in the complainant who was a Spaniard, to a brig called the Sally, which the complainant alleged to belong to him, and had sent to Charleston, under the care of Spooner, as captain, and of Gleises as supercargo, but which was covered as American property, in the name of Spooner; and the bill sought an account from defendant Delaire. The cause came to a hearing, and much testimony was given, and much argument gone into.

<p>Notes proved to have been usurious in their origin; and a note given, without any new usury, but for the balance of a note originally usurious, must all be set aside as void by the statute; more especially as there are strong presumptions that the defendant knew them to be usurious. And these transactions b eing the basis, and the inducement to a subsequent sale of stock, that sale is tainted with usury.</p> <p>Butthesale of thestock itself) independently of that circumstance, was usurious and void, because it was made to a necessitous man,(whose object was to raise money) át a price much above the market price of stock. It wus therefore considered a covered loan, at usurious interest, under the name of a sale of stock, and therefore void.</p> <p>In giving relief, the court requires the complainant to do equity-, and to pay all that was justly due on these transactions to the defendant after stripping them of the usury.</p>

<p>THE bill of complaint set forth, that the late Archibald John Calder, of Edisto Island, was seized and possessed, at the time of his decease, of a considerable real and personal estate; and died on or about the 15th April, 1804, without leaving alive a father, mother, brother, sister, wife or child ; but the following relations : your orator Charles Palmer, who was the brother of his mother, John and William Palmer, gi-andsons 'of John Palmer, a deceased brother of the mother of the said. A. J. Calder; Ephraim Mikell, jun, Ann Seabrook, (wife of Gabriel Seabroolc)|Elizabeth Mackie (now wife of Mungo Mackie,, late wife of William Baynard) and Mary Ann Sea brook (wife of William Seabrook,) who are the children of the late Mrs. Mikell, (wife of E. Mikell,) who was the sister of the father of said A. J. Calder, and also Mrs. Sarah Baynard, (wife of Thomas Baynard,) half sister of the father of said A. J. Calder. Complainant charges that A. J. Calder resided on Edisto Island,' and for some years before his death, had so addicted himself to the use of ardent liquors, that his body and mind were much debilitated. Tliat toward the close of his life, his imbecility was so extreme, and his lucid intervals so rare, that he could not. manage his own affairs, and was incapable of exerting the judgment requisite for the disposition of his estate by deed or will. That E. Mikell, (the husband of A. J. Calder’s aunt, and father of his cousins) also resided on Edleto, but that no intercourse subsisted between him or his family and A. J. C. but such a degree of aversion, that said A. J. Calder fre~ quently declared, (after the death of his wife) even before he was addicted to liquor, that the Mikell family should never get a shilling of his property; and he continued"m this disposition toward that family as long as his faculties were sound, and even after they were affected. Complainant charges that said A. J. C. being about to die, in March or April, 1804,'several attempts were made to induce him to make a will in favour of the Mikell family, particularly by Gabriel Seabrook, who married á daughter of said E. Mikell, a fortnight before the death of said A. J. C. but he refused to make any will in their favor» On 9th April, 1804, E. Mikell came to the house of said A. J. Calder, whom he had not visited for several years, and who was then extremely ill, having been deranged all the night before and that day; the said E¿ M« sent the persons present out of the room, and drew up a paper purporting to be the last will of said A« J. C. then calling in three witnesses, caused the same to be signed by said A. J. C< whose body was supported, and whose hand was guided in the act of signing. Complainant charges that When he signed said paper, said A. J. Calder was entirely deranged, and void of that mind and memory requisite to give validity to a last will; nor did he declare to the witnesses that said paper was his last will'; nor did he require their signatures, nor in any thing manifest that he knew what he was about. And said A. J. Calder continued thus intoxicated and insensible until he died, on or about 15th April, 1804, during which time neither said Mikell nor, family visited said A. J. C. but left hint wholly to the attendance of strangers. Complainant further charges that the paper thus obtained from the imbecility of said A. J. Calder, and purporting to be his last will, devises all his real estate on Edisto, consisting of three valuable tracts of land, and a small Island surrounded by a great body of valuable marsh, tobe equally divided among his cousins Ann and Mary Ann Seabrook, Elizabeth Bay-' nard and Ephraim Mikell, jun. (children of said E. Mikell) ánd at their death, to the heirs of their body, begotten; while no part of the real estate was devised to complainant, uncle of the testator, nor to Mrs] Sarah Baynard, aunt of the half blood, nor to the grandchildren of his uncle, John Palmer, nor were; any lands devised to complainants son, of any value, except one tract which is in dispute, claimed and occupied by other persons. And said paper also bequeaths all the negroes of said A. J. Calder,-in number 64, to be equally divided among Ann and Mary Ann Seabrook, Elizabeth Baynard and Ephraim Mikell, jun. and their heirs^ except 6 new negroes^ bequeathed to complainant’s son Charles. Thus cutting off entirely, complainant, the nearest living relation of said A. J. Calder, as well as other relations, as nearly connected with him as the children of said E. Mi* kell, and bestowing a mere pittance on complainant’s son Charles. Complainant charges that although he and his $onj (not quite grown up) had not an opportunity of frequently seeing their kinsman, A. J. C. as they lived in Beaufort district, there was no difference or coolness between them; and the intercourse subsisting, although rare, was kind and cordial, and said A. J. C. frequently expressed his friendship and kind intentions toward complainant and son.</p> <p>Complainant further sheweth, that on the death-of said A. J. C, on or about 15th April, 1804, said paper was proved by one of the subscribing witnesses, and recorded in the office of the Ordinary, in Charleston district, on 11th May, 1804, and E. Mikell, jun. and W. Seabrook, who were nominated executors thereof, qualified thereon. Complainant believes that said executors of said will have possessed themselves of the real and personal estate of said A. J. Calder, and made an inventory of tlie whole personal estate, including certain personal estate not included in said pretended last will, and which cannot possibly pass thereby, even admitting the same to be valid, and which must be distributed among the nearest relations of said A. J. C. according to the act of the legislature, for the abolition of the rights of primogeniture. And said E. Mikell, jun. and Wm. Seabrook are taking measures for the division of the whole of said estate, among the several devisees and legatees, under said pretended last will; and copies of said will and said inventory, are filed with bill, marked A. and B.</p> <p>Complainant charges that residing far from his said kinsman, A. J. Calder, and not having time' or opportunity to investigate fully the circumstances attending the execution of the pretended last will, and having unfortunately injured his leg immediately after the death of said A. J. Calder, which disabled him for many months,. and being unapprized of the time fixed for the probate of the will, he did not oppose the probate thereof before the ordinary, or appeal from the same when proved, as he would have done, had he been informed in proper time of the circumstances attending its execution,' and had he been able to attend to any business, or had he been aware of the application for a probate thereof. Complainant having been since informed of the state of A. J. Calder’s mind and body when he signed said last will, applied to said .executors, expressing his dissatisfaction with said paper and his resolution to contest the same, requesting either that it should be set aside by consent, or contested before the ordinary, as to the personal estate said to be passed thereby, and that an issue “ devisavit vel non” might be joined as to the real estate therein mentioned, and the cause tried before a jury; and that his right to á share of the personal estate of said A. J. Calder, not comprehended by said pretended last will, (admitting that the same were valid) should, at all events be acknowledged, and a distribution made accordingly.</p> <p>Complainant hoped that the said executors with the de-visees and legatees under said pretended last will,sensible of the state of A. J. ((alder, at the time of signing said will, and of his incapacity to make a legal disposition" of bis estate, and the unjust disposition made thereof; of the right of complainant to a share of the personal estate Gf said A. Calder, not passed by said will, (even sup-' posing it valid) would have consented to set aside said' paper, and agreed that his estate should be distributed among his relations according to their legal rights, as in case of intestacy ; — -Or at least would consent to the distribution according to law, of the personal estate, not comprehended in said will; or to a solemn contest of said paper before the court of ordinary and a jury.</p> <p>Complainant further states, that said E. Mikell, jun. and William Seabrook, and the legatees named in said pretended will, (except-complainant’s son Charles,) have refused to set aside said paper, or to consent that said estate should be distributed as in case of intestacy, or even to have a rehearing before the .ordinary, or any competent tribunal on full proofs relative to the due execution of said pretended last will; pretending and holding out that said .paper was executed according to the forms of law by said A. J„ Caldeiy who then enjoyed his faculties in full perfection, and was competent to dispose of his estate according to his affections, and that the same was executed by him with full knowledge of its contents; whereas complainant charges, that said A. J. C. was utterly incapable of exerting a sound mind in the execution of any deed or last will, and that said paper, purporting to be his last will, was obtained by surprize, while he was incompetent to act according to his free will-. All which doings are contrary to equity, and tend to injure complainant.</p> <p>For as much then as complainant is remediless at common law and in the court of ordinary, and can only be relieved in this honorable court, he requires that defendants may be obliged to discover, whether testator was legally lit to execute his will, at .the time he did. That they discover the true state of his body and mind at that time ; that they set forth a full account of the real and personal estate of testator, and of the crops and income thereof. That they be directed to consent to set aside the probate, and consent to a contest of said wiil, and go into full proof of the execution thereof, so far as respects the personal estate passed thereby. And that an issue “ devisavit vel non'’’ be directed to be' tried before a jury, in the Court of Common Fleas, as to the real estate, and that the executors be directed to render a just account of the personal estate, not passed thereby, and make distribution among those legally entitled thereto.</p> <p>The answer stated, that the defendants, Ephraim Milcell, jun. William Seabrook, Gabriel Seabrook, Mun-go Mackie, Ann Seabrook, wife of Gabriel Seabrook^ Elizabeth Mackie, wife of Mungo Mackie, and Ann Sea-brook, wife of William Seabrook, admit that A. J. Calder was possessed of a considerable real and personal estate; that he died April 20th, 1804, without leaving any relations but those mentioned in bill of complaint, i hey admit that said A. J. Calder, at intervals, did make use of spirituous liquors, but assert that he was nevertheless capable, and did manage his own business. They deny that any coldness or aversion did exist between the Mi-kell family and said A. J. C. but on the contrary, from their infancy to the time of his death, he frequently visited said family, and was visited by them, when he had become ahouse-keeper; thathe married a daughter of said E. Mi-kell the father, and that said E. Mikell, in September, 1803, lent said A. J. C. a considerable sum of money, secured by bond, and which remained unpaid at the time of his death.</p> <p>Defendants positively deny that they ever used any efforts to induce said Archibald to make the will mentioned in bill, but on the contrary, said Archibald sent for Gabriel Seabrook, and requested him to have his will made, as said Gabriel avers, and the other defendants believe. Defendants deny that they were present at the execution of the will', but according to the best of their information the said Archibald was, though very sick, u.’ly capable .of exercising bis reason, and was possessed of that soundness requisite to give validity to a last will, and that jle execute the same, and declare it to be his last will. Defendants deny positively that part of the bill which asserts that neither the aforesaid E. Mikell, senior, nor any of his family ever visited said Archibald in his last illness, but on the contrary, they aver that E. Mikell, jun. G.. Seabrook and William Seabrook, three of the defendants, visited him frequently, and set up with him at night, and that said E. Mikell, jun. was with him the night of his decease. And defendants declare thát they knew of no friendly intercourse subsisting between complainant and the said Archibald, except a single visit made'by the former to the latter, or Edisto, where his stay was very short, when and where complainant witnessed the frequent in tercourse between the Mikell family and said Archibald. The said defendants admit that E. Mikell, jun. and Vm, Seabrook, have taken upon themselves the execution of said will, and admit that they took into possession, with, the rest of the personal estate, such part thereof as was not disposed of under the will, as they apprehended they were bound by law to appropriate the proceeds thereof to the payment of the debts of the estate, which are so great, that the whole of the personal estate will not be much more than sufficient to discharge the same.</p> <p>Defendants deny that complainant had not an opportunity to make investigation of the circumstances under which the will was made, before the probate thereof, and that he was unapprised of the time fixed for the probate of the will, for said executors aver, and the rest of said defendants believe, that on the Monday after the decease of said testator, complainant was on Edisto Island, and at the house of deceased only three days after his death, when he saw the will, and was informed of the time when said will would be proved, and that after examining said will, he, in a letter addressed to said Wm. Seabrook, declined any interference with the same; and that it was not till February last, (almost twelve months after decease of the testator) thattbe said defendants were informed of the pre-gent views of complainant; a copy of which note or letter is filed with the answer. Defendants therefore contend and submit the same to the court, that the probate of the court of ordinary is conclusive as to the personal estate. Defendants deny all unlawful combination, &c.</p> <p>The cause came to a hearing. The following testimony was given:</p> <p>Mathew O’Brien, swore, that he had been tire overseer of Mr. Calder, the testator, and resided on the plantation with him from the 1st of February, 1804, till his death in April. To the best of his r.- collection he never saw Mr. Mikell there before the day the will was executed; no message was sent for him; none could have gone without his knowledge. Mr. Gabriel Seabrook had come about half an hour before him ; the night before the deceased was not in his right mind j he dozed frequently, and called out when no persons were there, what men are these ? Mr. Calder never gave any directions as to his plantation, after the first week of witness’s being there. He could not keep from drink. The witness asked Mr. Seabrook, before Mr. Mikell came, if he thought Mr. Calder would make a will; he answered, no, for he had been asked and had refused. Mr. Seabrook took him afterwards to walk towards the landing, and said I fancy a will, will be made now. When they returned he saw blank paper put on a table for Mr. Mikell, with pen and ink. Witness walked out again with Mr. Seabrook, and on returning into the hall, saw Mr. Mikell writing at the table. He was writing ■about half an hour. When the witness went in, Mr. Mi-kell laid down the pen'and went into the room of the sick man, but left the papers. He does not know how long he staid, for Mr. Seabrook again took him by the arm to walk. Whilst they were walking, Dr. Auld called for the boat, which was sent, and he came over. Dr. Auld and Mr. Seabrook then went into Mr. Calder’s sick room, and staid about ten minutes, and then came out. He anc[ they then went to see a sick negro, and returned, soon after Qr> Auld went away. Does not know if Dr. • Auld went a second time into the sick room. In about an hour after the doctor went away the will was executed, Mr. Seabrook sent for Mr. Megget, who came in three quai-ters of an hour. Mr. Mikell assisted Mr. Calder, and he signed the paper. Witness was about to retire, but Mr. Seabrook asked him to sign as a witness, and Mr. Kelly said, surely you will sign this; witness.’did so ; but unwillingly, because he did not think Mr, Calder was in his senses ; believes the paper executed was the one written by Mr. Mikell. Mr. Seabrook desired the witness, if he was asked about the situation of Calder when the ’ will was executed, to say that he was in his senses ; but he told him he could not; then he desired him not to say anything on the subject, till he came before the ordinary. Witness never said he would prove the will; but in conversing with peri sons interested in the will, he said, if nothing was said about the will, all would be well.</p> <p>Mr. Calder had told witness he never would give his property to the Mikells, because he had married into the family, and when his wife died, old Mr. Mikell had sent and taken away the negroes which he had given him with his daughter, and he had returned them, all except one favorite slave,</p> <p>arrived in his boat at Mr. Calder’s, about five or six days after his death. He had a very sore thigh, appeared to be very infirm, and complained of his head, and of a fever. He was in constant pain. He went away on the second day; walked to Mr. Meg-get’s landing in much pain, and with the help of a stick. Mr. E. Mikell, Mr. W. Seabrook, and Mr. G. Seabrook, and Mrs. Ellis were present when Mr. Palmer came, but went away in less than an hour. 'There was a horse and chair at the place, but Mr. Palmer did not ask for it, and it was not offered to him. If he had asked, witness would have been uneasy to have refused, and would have been kpprehensive of displeasing the Mikells by granting it. Mr. Palmer used the provisions of the place whilst he staid. ' "</p> <p>Mr. Meggetj a subscribing witness to the will. He swore that he was sent for on the 9th April; 1804, by Mn E. Mikell, to do some writings 'That he went to Mr« Calder’s, and found Gabriel Seabrook, T. Kelly, and M* O’Briens Mr. E, Mikell was sitting at a table in a room adjoining that in which Mr. Calder lay. Mr. Mikell told witness, he had sent for him to witness a will. Witness said he had better see Mr; Calder first. He did so, and found him very'poorly. He spoke to him; and thought him in his senses. He was not' .then intoxicated; He spoke but few words to the witness, but those Were rational, and he called the witness byname. The paper was put on a waiter for him to sign, but it was not stated what the paper was, which he was to sign. The witness put his arm under the sick' man’s, to assist him. The sick man did not say it was his will. Mr; Mikell said; here is the paper you are to sign. He did not know whether it was a deed, a bond, ora will. Calder had not time to read it. He was asked if he acknowledged it to be his hand and seal, and he said yesj but not till the question was asked. He did not desire him to witness it. He did not think Calder in a situation fit to make his will. By after conversation with Calder, he found that he' knew it to be a will j but he does not think he knew the items of it. He asked Calder if he was satisfied with all that was written, and he said yes. Between the time of his coming and going in to sign the will as a witness, there was not time to have read the will over to the deceased. Upon his entrance into, the room the second timé, Mr. Mikellhad the paper in his hands. .Witness never saw Mr. Mikell there during Galder’s sickness, but that day, though he (the wit* ness) was there .several times a week. ' Witness was af-terwards applied to by Mr. W. Seabrook, to prove the will, but he said it would not be in his power to prove the will.</p> <p>Mr. Megget cross examined, said that he would not prove the will, because he thought the proper formalities were wanting. Calder could not in his situation have dictated the will at once. It would have taken him two or three days in his situation, to have die-1 tated a will. Therefore he told Mr. Seabrook he could not prove the will.</p> <p>Witness believes Mr. Mikell’s character as to moral integrity, to be good.</p> <p>Mr. Calder was acquainted with Mn Calder, the deceased, whose will is in question, five years before his death. He lived 10 or 11 miles from him. . He saw him the week before his death; he was then very, sick, reduced in body and weak in mind. He was ■ not capable when he saw him of making a will, or talking of business. He would ask if there were not people in the room, and would start and ask witness if he was not afraid.' He never would converse about his dispute with the Mikells. On the 16th February, preceding his death, Calder rode to witness’s house, and the witness asked Calder if he would not make his will. He said no, the law would make, a will for him, just as he wished. He asked him if he would not give something to the Mikells. He said no. If I die in my senses, I never will leave them a shilling. He mentioned that the law would give his property to his uncle Palmer. He shewed Mr. Calder a copy of his father’s will as a form. He objected to it, because in favor of the Mikells. Saw him twice afterwards — very weak in body and mind.</p> <p>Mr. Joseph Seabrook, swore, that he lived two miles from Mr. Calder, who was a man addicted to intoxication. He saw him on the 9th April. He was then very sick, and witness desired him to send for the doctor, but he would not; and witness sent for him, .himself. Cal* der’s mind was not correct, but deranged. , Witness went away at two o’clock, and returned at five o’clock. Calder was in the same state, and not fit for business. He staid with him all night, and went away at 8 in the morning. Calder was then somewhat better, but would only speak when allied questions, and then could not connect his ideas. Calder has expressed to him his affection for his uncle, Mr. Palmer, and his son, and said he would give the son a place, or sell it to him very cheap, if he would come and live near him;</p> <p>John Patterson swore, that he has heard Mr. Calder, the deceased, say some years before his death' he wfcudd never leave the Mikells any thing. He was a man of a fickle disposition;</p> <p>For the defendants, the following testimony was given :</p> <p>Dr. Aukl swore, that he saw Mr. Calder the testator on the 9th April, before his death. When he got to the house he saw Mr. Mikell, the elder, coming out of the inner room, with a paper written on one side. He found Mr. Calder not so bad as he at first thought. He said he had been very ill the night before; but was then bettei', though he had a pain in his side. To all enquiries about his health, his answers were rational and connected. He was about half an hour with him the first day. It was the same on the second day. Saw him frequently after till his death; before which he had a copsultatioh with Dr. O’Driscoll, in which the patient appeared consistent. Indeed he always appeared So to witness.</p> <p>Mrs. Ellis. She was sent for as nurse, to take care of Mr. Calder in his last illness, after the will was made. He was then in his senses, and asked for what he wanted, tea, &c. He often asked for rum and water, and was vexed when it was not given to him.</p> <p>Mr. Westcot, called to see Mr. Calder, before the will was made. He said he was unwell. He took spirituous liquors with his medicines</p> <p>Mr. Mickell, senior. He had heard that Mr. Calder approved of his father’s will. ' The witness told him it had nothing to do with his propei-ty — that he was of age, and could make his own will. Calder sent a servant to a trunk for paper, and to another place for pens, which he said, were of Kelly’s making. Then he had a table ' brought,- and be began to give him the heads of his will, which he took in writing as directed. After he had taken ¿own the heads, he retired into another room, and wrote the will. When*it was done, he took it to him, and directed him to read it. After reading some time, Calder complained of his side, and requested witness to read it to him; which he did. As soon as he had read it, witness told Calder if he wished alterations, he would write it over. He said there was no occasion. So far the witness recollected perfectly. After that, he did not notice much till Calder signed the will. Witness saw him sign it. He appeared to be collected. He gave the witness the names of six of the negroes whom the witness did not know. First he named five of them, and was then interrupted by the coming of the doctor; and he afterwards gave the name of the 6th negro. He said they were new negroes. Witness loaned Mr. Calder $5,000 some time before to pay his debts, lie took the negroes away after his daughter’s death, because he had only loaned them? and told Calder if he would give them up, he would give him one favourite slave, the furniture and 5001. Mr. Calder was of a fickle temper.</p> <p>contended, that there was abundant reason to set aside, or to open the probate in this case. That it was very dubious, to say the least, whether Mr. Calder was in a proper state of mind to execute a will, when he. did it. And that the probate had been made before the ordinary, without opposition or discussion, so that the. rights of the parties were decided without examination or argument. That the question of fraud or imposition was not before the ordinary; and that the complainant had no-correct or full information of the true state of things before the probate. When Mr. Palmer visited the plantation, it' was immediately after his kinsman’s death, he was in extreme ill health, and great pain, which incapacitated him from making.full and proper enquiries, and no one then 'volunteered to make a full disclosure to him. Consequently he was not conusant of the wrong done, and of his rights. Two of the subscribing witnesses swore they Could not prove the will; there must be a strong doubt then on the mind of the court, whether justice had been done .in the ex parte examination which had been made j and if such doubt existed, that was quite enough to induce the court to put the case into a proper train for a regular examination, and a plenary hearing. The counsel cited 1 Vesey,sen.287. 4 Burns’ Eccl. Law, 45. 3 Atk. 161 1 Fonb. 65, 6. 2 Burr. 1012. And case 0f M’Dow-all and Peyton, recently decided in this court, (V ide ante, p. 313.)</p> <p>ar« gued that this court ought not to interfere in the case. That the evidence does not make such a case as to induce the court to bejieve that fraud or imposition had been prac-tised to obtain this will from the deceased, Mr. Calder | and without such proof, the court would not intermeddle; more especially as there was no proof that the complainant was kept in ignorance of the existence of the will, and of the intent to prove it. He was at the plantation of the deceased soon after his death, and was then apprized of the will. He made no objection — he entered no caveat in the Court of ordinary; but permitted the will to be proved without opposition, and acquiesced for twelve months.— That this ought to be conclusive ; for the jurisdiction over-this subject is given by law to another tribunal. It is in the court of ordinary, with an appeal in a limited time to. the circuit, court of law ■; and that jurisdiction is final and conclusive, and should not be meddled with, unless in most extraordinary cases of fraud, or where there would be a, palpable defect of justice. The counsel cited 1 Fonbl. 70. 7 Bac. 378. Gbdolphin, 154. Swinb. 6, 69, 70; and Heyward and Hazzard’s case. Bay’s Reports.</p>

THE case made by the bill was, that Dr. Jas. Mackie, of Georgetown, died in 1795,leaving his wife, the complainant, and an infant daughter Harriet.

THE complainant stated that in 1802, be received from Philip Gadsden, a mortgage of sundry property, and amongst the rest, a lot on Charleston Neck, of about eleven acres, to secure a debt of $40,000, due from Christopher Gadsden & Co. That some time since, John M. Ehric obtained a judgment at law against P. Gadsden, and levied his execution on that lot, and advertised it for sale by the sheriff for cash, but afterwards countermanded the sale, appearing contented to wait…

<p>A purchaser of land, held in trust, to certain uses, with proviso, authorizing’ a sale, and re-investment ofthe purchase money, to the same uses, is notbound to see to the application ofthe purchase money to the purposes ofthe trust. Atrustee directed to be changed in the manner prescribed by law.</p>

THE bill was filed in this case, to get rid of complainants liability on a bond, in which he was bound, jointly and severally with Robert Tate and others-, to the late M’C. Campbell, and on which judgment had been obtained at law. • . The grounds were, 1st. That the complainant was merely security in the bond, though that was not expressed on its face.

THE bill was filed in ibis case to obtain a perpetual injunction against the defendant, to restrain him from suing and recovering on a bond in which the complainant had joined With two others, as surety, on the ground of la-ches in the creditor, in pursuing the demand against the principal, and in giving time for the payment, beyond the periods stipulated in the bond.

<p>A widow b.egueathes by. general words, the distributive share she was entitled to in her intestate husband’s.'estate, then undivided, ¡and dies.. Her husband was entitled, besides his estate in possession, to certain negroes bequeathed to. him by a relation, after a life estate given to another person. This life estate did not fall in till after the husbands death, nor indeed until after the death, of the widow. Nevertheless her general bequest passes her interest in these negroes.</p> <p>A’ husband is entitled exclusively to his wife’s estate, though not actually reduced to possession by division, during the coverture.</p>

THE bill set forth, that complainant Ann, before her intermarriage with complainant, Nicholas Cfuger, was the widow of Daniel Heyward, deceased.

THIS bill was filed to set aside a sale and conveyance alleged to have been made by William Brazier, to Philip ■ Mathews, of a church and parsonage house, belonging to the Primitive Methodist Church, and converted into an. Episcopal Church, without the consent, and against the will of the congregation. — And to have the deeds .of sale and conveyance cancelled, as illegal and void. The bill of John Combe, Wm.

THE object of this bill was to obtain the opinion of the court on a clause in the will of the late Mr. Adana Ewing, deceased. The bill stated] that Adam Ewing, the testator, was formerly a merchant resident in Charleston, and' died on the October, 1796, leaving the following children, viz. Robert, who is now of age ; Agnes, (Mr. Johnston’s wife,) nearly of age ; Jane, who will be 21 in August; Margaret, 18 years old; Elizabeth, 17 years old, and Walter, now 15 years of age.

<p>THE bill was filed to obtain an account of the estate of Philip Hawkins, and the payment of a debt due by him to the complainant on a note of hand, on which a judgment bad been obtained in the year 1789, which had never been satisfied. The defendant admitted the judgment, but stated that the judgment was subject to a plea oí plane ad-ministravit, and that part of the private estate of Philip Hawkins had been subjected by a decree of this court, to aid in paying the copartnership debts due by the concern of Hawkins, Petrie & Co. of which the said P. Hawkins was a member, on the ground that the funds of the copart-nership were not sufficient to pay its debts, and that great part of the private estate of the said P. Hawkins had been purchased and paid for with the funds of the copartnership formerly in his hands; and that the remainder of the funds of the private estate of the said P. Hawkins were not sufficient to pay all his "private debts, especially if a large demand from abroad of a Mr, De Neufville, which had been made, should be established. The defendant admitted a balance in his hands, subject to the payment of P. Hawkins’s private debts, which was subject to the order of the court.</p> <p>At the hearing of the case, some attempt was made by Mr. Winstanly and Mr. Pringle, the counsel for the complainant, to go into the question whether Philip Hawkins had really employed the copartnership funds in the purchase of his private estate j and if he had, whether the court could follow the property so purchased, and make it liable to the copartnership debts in preference to P-Hawkins’s private debts. It was also contended that thé' demand of De Neufville was of very old standing, hadi never been proved, anil ought not now to be regarded in the application of the assets of P. Hawkins to the payment of debts.</p> <p>Mr. Desaussure and Mr. Wm. Ü: Smith contended that the court had a right to follow these funds; and that having done so, and subjected them, by its decree to the payment of the copartnership debts, It was now too late to' question it. It would be mischievous to Unsettle what bad been done ; ánd would putalltitles in jeopardy.</p> <p>That with respect to the claim of De • Neufville, it was’ from abroad, and the troubles in Europe had probably prevented its prosecution. That at all events it was the ex-' ecutor’s duty to bring if to the view of the court, and to request a notice to De Neufville.</p>

THE bill states, that Mrs. Elizabeth Lahiffe, then a widow, purchased from Mr. John Geyer and his wife, a house and lot of land at the corner of King and Queen streets, in Charlesten, which they conveyed to her in fee simple ; and she to secure payment of the purchase money, (1,100/.) gave her bond and executed a mortgage of the premises, in September, 1794.

THIS was, a bill iu~d uy ttie complainants to obtains settlement of accounts, and of the concerns and transactions Wo c0Palincrships between the late Thomas' and Bar* nard Richardson, and the late John Wyatt, who had car* tied 033 business togothi t for many .years, as carpenters.

THE complainants filed tbeir bill in this case originally against Edmund Bellinger, executor of Benjamin Webb, deceased. ' .

* THE object of the complainant’s bill was to obtain the benefit of an equitable lien, which they insisted they were entitled to, on a tract of land sold by their ancestor Mr. Wm. Wragg,now deceased,, to Mr. Andrew Irvine. The complainant’s bill sets forth that Wm.

THOMAS COCHRAN, the elder, made and execute ed hjs last will and testament, and départed this life, leaving the same in full force.

THIS was an amicable bill, fib cl to obtain the judgment of the court, onth. construction of the last will and testament of the late General John M’Pherson. General M’Fherson made and executed his last will and testament on the 21st day of June, in the year 1803, with two codicils thereto, on the 22d June, 1803, immediately preceding his departure from Charleston, on a voyage to Europe.

<p>The circumstance of one obligor in a bond making- payments, and being resorted to by the creditor, raises a strong- presumption, that he was a principal in the bond; whilst the circumstance of another obligor not making payments, and not being called upon for them, raises a presump tipn that he was only surety in the bond.</p> <p>A laches of many years in pursuing any legal demand against an obligor in a bond, will so far protect, that this court will not aid the creditor seeking relief, against the representatives of the deceased -'obligor, nor aid one obligor seeking to compel another to contribute.</p>

<p>A person borrows a note from bis friend to be used ih bank, and promises by letter to give a bill of sale of particular personal property as a security.</p> <p>The borrower of the note dies without giving the bill of sale, and tile lender is obliged to take up the note, He has a lien on the property promised to be secured to him in preference to other creditors.'</p>

THE object of this bill was to obtain the opinion of the court, on the last will and testament of the deceased Richard Ellis., The hill stated, that the testator made his last will on tbe lYth June, 1802, wherein he devised alibis real estate to his four sons Charles, Richard, Edmund and William, except some town lots to his two daughters Elizabeth and Sarah.

<p>A testatrix bequeaths an annuity of 601. to E. I. chargeable on her whole real estate.</p> <p>The heir at law, and devisee of testatrix sells the real estate generally to third persons for valuable consideration, without notice of the Charge of the annuity.</p> <p>On the sale of a house afid lot, the last part of the real estate, to W. T. the vendor expi-éssly informed W. T. that the house and lot were subject to the annuity, and allowed him to retain in his hands a sufficient part of the purchase money to cover the annuity.</p> <p>The annuitant shajl be decreed to be paid the annuity out of thef house and lot exclusively, tribuling'. The other purchasers protected from con-</p>

<p>An informal paper, acknowledging that the writer had been entrusted with the funds of another person, and manifestly intended to operate as a security on certain specified property, shall have the effect of a mortgage of such property, and, entitle the holder to a priority over other creditors of the deceased signer of the paper, after prior encumbrances are satisfied. Interest to be allowed from the time the money was received.</p> <p>An acknowledgment of the sale of the property and the receipt of a certain sum of money, belonging to another person, and the investment ofit in personal property, is a declaration of trust, or gives an equitablelien. The court supposed it was the latter. Interest allowed from the time of receiving the money.</p> <p>Other monies received, to be on the footing of a common creditor.</p> <p>The court referred the party to a suit at law, for another sum prov-edto have been received by defendants testator, but not charged in the bill nor stated.in the account.</p>

<p>THE object of the complainant’s bill was to obtain the sale of certain negro slaves, to pay a debt due to him, and to reimburse him a certain sum which complainant alleged he had paid for the defendant on notes, on which he had been endorser for defendant.</p> <p>The defendant had conveyed the negroes in question to the complainant, by a deed, which on its face purported to be an absolute bill of sale, but which it was conceded was given merely to secure the debt due to complainant, and such sums as he might pay for defendant.</p> <p>The defendant resisted the demands of the complainant, and the foreclosure ofthe mortgage and the sale of the negroes, on the ground that the principal inducement to his giving the bill of sale to the complainant, was that the complainant and defendant had entered into Various engagements and arrangements, by which complainant was to have advanced defendant further surns of money, to enable him to have established a coffee plantation on the Island of Cuba, on tbeir joint account; but that the complainant had wholly failed therein, to the great injury of the defendant, for which he insisted he was entitled to re* dress, and that the said bill of sale ought not to be enforced against him. The parties had referred their disputes to arbitration, and the arbitrators had made an award, but the complainant had protested against the award, and refused to abide by it; and had instituted this suit against the defendant,, and had him arrested under a writ of ne exeat. The defendant also filed a cross bill to establish his claims ; to which this complainant had filed! an answer.</p> <p>The cause came to a hearing, and there was a great deal of contradictory evidence, which, the court laid out of ^ case^ int^e view which it took of the cause.</p>

THE bill of complainant set forth that the complainant Mary Fraser, is the only sister of the late John C. Livingston ; and that the complainants Caroline and Harriet Fraser, are daughters of the said Mary. That John C. Livingston was seized and possessed of considerable estates in this state, and in Georgia: that he made his last will and testament on the 29th Sept. 1803, and died, leaving the same in full force.

<p>An executor is not bound to plead the statute of limitations to a debt which he believes to be a just one; and his acknowledgment will prevent the statute from running against it.</p> <p>The court will not, in such a case, set aside or open the judgment at law to let in the devisees and legatees to plead the statute.</p>

THIS bill was filed to enforce the specific execution of a contract for the sale of a lot of land in Charleston; The bill set forth, that the complainant purchased of James Butler a lot of land in Charleston,- (described in the bill) and that he contracted, on the' 14th August, 1797, with William Reside for the sale of the said lot, on the following terms: that the purchaser should give bond for the payment of 600/. by three equal annual instalments, with interest from the…

<p>Where the complainant who seeks a specific performance of an agreement for the sale of land, has not performed what was incuip-bent on him by contract to do, the court will not decree specific per-formalice, especially if any injury lias, resulted to the defendant from such non performance. Bat the defendant, having taken possession of the land, andpaid part of the purchase money, and executed the agreement in part, the court trill consider him as having waived his objections to the complainants conduct, and will decree the execution of the agreement. It will, however, extend the time of payment, vary the security to be given, and regulate the payment of interest, ao cordingtothe justice of the case, under the circumstances produced by the conduct of the parties.</p> <p>(A contract made in this state, for land lying in another state, may be enforced in personam, by one party against the other, according-to, the English authorities. But the question Of jurisdiction was waived in this case.)</p>

<p>THE original bill was filed to sfet aside a deed of marriage settlement, or to correct and reform tbe deed; some of tbe provisions contained therein, having been obtained by fraud, of inserted by mistake, as was alleged.</p> <p>This was a bill of revivor, to revive that which had been, filed by Mr. Picton, and who died soon after.</p> <p>The bill stated that William Byers executed his last will and testament on the 25th May, 1V83, by which he bequeathed a certain proportion of his estate to his wife, and the remainder to his only child Elizabeth Byers, and her heirs, Win. .Byers died on the 1st June, 1793, leaving his will in full force ; but his wife died before him ; so that E, Byers became entitled to the whole estate of her said father.</p> <p>That Mrs. Elizabeth Walker bequeathed to her granddaughter, the said Elizabeth Byefs, several negro slaves; but if the said E. Byers should die, without lawful issue, then the said slaves were to go to the testatrix’s sons R. Barlow, Angus Graham, and John Walker.</p> <p>That a marriage being about to take place between C. M. Picton, the complainant’s testator, and the said E. Byers, her maternal uncles Angus Graham and John Walker, requested the said Picton to- agree to a marriage settlement of hef property, to be made conformable to the wills of her father and grandmother; to which he readily consented * and they undertook to prepare the same.</p> <p>That on the evening of the marriage, and but a few minutes before the ceremony, Angus Graham tendered to the said C. Picton for his signature, a deed of settlement, which he had caused to be drawn up ; and the said Pic-ton supposing it to be properly drawn, signed it without reading it.</p> <p>That the marriage took effect immediately after, to' wit, on the 8th May, 1801, his wife being then about 18 3re‘*rs aSe- That she died on the 8th June, 1802, under the age of 21 years, but leaving- a female child, who died 12 days after its mother : whereupon all the property which had belonged to the said. Elizabeth, became vested in said C. Picton, her surviving husband.</p> <p>That the deed of settlement,-executed as abovemention-ed, was kept by the said Angus Graham', who never recorded the same, nor communicated its contents to' said Picton, till about one year after the death of his said wife., That by a clause in the said settlement, inserted by'the procurement of the said Angus Graham and John Walker, it is provided that if the said E. Byers should die before the said C. Picton, her then intended husband, leaving no issue, or leaving issue, and such issue should die before the age of 21 years, and unmarried, the property included in the settlement, should vest in the said Graham and Walker. The complainant charges that such clause was introduced fraudulently, without the knowledge or consent of the said C. Picton, and contrary to the terms verbally stated to him before the marriage, to wit, that the settlement should be made conformable to the wills of the father and grandmother of said E. Picton.</p> <p>That the said Graham and Walker have possessed themselves of ail the property in question, and keep the same as their own. The bill prays discovery, and an account, and such relief as complainant is entitled to.</p> <p>To this bill the defendants put in the following answer: The defendants admit that William Byers made his last will and testament, by which he bequeathed his property as complainant states, and died, leaving his said will in full force, and leaving Elizabeth Byérs, his only child. His wife died before him.</p> <p>They admit that Elizabeth Walker made the will attributed to her, and died leaving the said will in full force. And they have been advised, that under the said will, the property devised to the said Elizabeth Byers, in the events of her dying unmarried or under age, or without leaving issue, which should attain the age of maturity or be married (which event has occurred) would devolve upon themselves absolutely. They admit the solemnization of the marriage between the complainant and Elizabeth Byers, who was about V7 years of age. That exhibit C. isa true copy of the deed of marriage settlement; but they deny the manner in which the complainant says the deed was executed, and aver that the .complainant was informed three weeks before his marriage, that the property belonging to his wife, was to be settled agreeably to the provisions afterwards inserted in the said marriage settlement, assented thereto, and was about eight days before the marriage specially informed by one of the defendants of the contents thereof, with which he confessed himself pei'fectly satisfied.</p> <p>The defendants deny that the wills .of William Byers and Elizabeth Walker were ever considered or agreed upon to form the grounds of the said settlement, but were adverted to merely to collect from them a description of the property. They deny that the settlement was signed by the complainant without reading it, averring that before he signed it, he perused it with care and attention j sometime after which the ceremony was performed.</p> <p>The defendant^ admit that the deed was not recorded until the time mentioned in the bill; and they allege various reasons for its not having been doné earlier; and declare that had a sight of this deed beep required at any time either by the complainant or anyone authorised by him, it would readily have been produced. They admit their present possession of the property which they claim as their own.1</p> <p>At the hearing, the wills of Mr. Byers and of Mrs. Walker, and the deed of settlement were produced in. evidence.</p> <p>The following testimony was also given</p> <p>Mrs., Collins. About three. weeks before the marriage^ p/[r. callcd5 aJJCl sa¡d to Miss Byers, it was very ProPer to have a marriage s<-t demerit. She said nothing. He then addressed himself to the witness, who said it was what she wished, to have a settlement of the property tq hcr an¿ Her issue. He said it was impossible it could be made exactly in that way, and that it was a matter of form. Miss B. said nothing. — Is sure he had no previous conversation with her. He said it was to be according to his mothers will. She never heard any thing from Graham in the first conversation, implying that Walker and Graham were to have any thing. She was present at the execution of the deed. Graham, who offered it to Picton, said it was only a matter of form, and it could not affect his rights, Picton said if he read it, he would not understand it. Miss B. who had not been anxious for a settlement, was in another room; she hesitated a moment, but she stept forward to sign. This was immediately before the marriage, just before the minister came. Believes Mr, Picton looked at one part, but cannot say whether he read the whole.</p> <p>Mr. Verree, Was present at the marriage of Picton — < saw tbe deed handed to Picton; be objected to it, not knowing the contents, Graham said there was nothing in it to injure him, he need not hesitate to sign it; and he signed it. He did not read, he thinks, from the short time he had it in his hands, ten lines. He asked for the contents of it. Next day he mentioned to witness he did not know the contents. The deed was offered immediately before the ceremony. He turned over to one particular part in which the will was mentioned. Dont know whether he said agreeably to the will, or which referred to the will. Miss B. asked no questions when she signed the deed. She appeared to be frightened.</p> <p>Mr. Hodgson. Was present when this deed was executed by Mr. Picton — not a quarter of an ho.ur between tbe signing the deed and the ceremony; but did not. actually jjee Picton sign the deed, or any other person. Never knew the contents of the paper till long after.</p> <p>Mr. Walker palled on witness on Sullivan’s Island, to prove the deed. It was proved on 7th June, 1803.</p> <p>Letters were also produced, which shewed Mr. Graham’s consent to the marriage of his niece.</p> <p>The other subscribing witness to the deed was dead.</p> <p>contended that the deed in question must be set aside, on the ground of fraud or mistake. That the deed was executed by the com* plainant without a knowledge of its contents; it being proved that he never read it, confiding in the probity and representation of Graham, the uncle' of his intended wife,, who stated that the deed of settlement contained nothing to his injury. It was produced for execution immediately before the marriage ceremony, which was no fit time for the examination of the provisions of the deed: nor were they examined. That this confidence was abused; for the deed did contain a limitation to the injury of the intended husband, unusual in its nature, and not conformable to the provisions of the will of the father or grandmother of Miss Byers, to which Mr. Graham had alleged the settlement was to be conformed. These wills contain no limitation similar to that introduced into the deed.</p> <p>This was a fraudulent misrepresentation, on which the court will set aside the deed.</p> <p>The husband was kept ignorant of the' contents of the deed, which might have alarmed him, and induced him to obtain its correction pr reformation in the life time, and by the authority pf his wife. The uncles kept it secret without recording it till her death, and thus rendered it a void instrument, as it regarded creditors, and powerless as to the main, object of marriage settlements, the protection of the property for the wife and children; and powerful, only to the injury of the husband’s marital rights.</p> <p>The settlement included'not only what Miss Byers derived from the wills of her father and grandmother, but also what was absolutely her own, on the death of her mo-then ' .</p> <p>The answer of the defendants is not entitled to credit -with the court, for it alleges what is incorrect in several particulars; and this takes away all credit from it.</p> <p>states that the deed was deliberately read1 over by Mr. Picton : whereas two witnesses proye that he never read it at all.</p> <p>The not reading the deed is a badge of fraud. In the peculiar circumstances of delicacy in which the parties were placed, it was incumbent on the defendants to have insisted on the deed being read, and perfectly understood.</p> <p>The deed thus prepared, under the instructions of the uncles, without the privity of the intended husband of their niece, was fraudulent for want of. consideration. There was no manner of consideration-for thus inserting a clause of an unusual nature, restricting the marital rights in the property, and for the benefit of- these uncles. See'White v. Hussey, in Prec. in Chañe, p. 13. . Bennet v. Vade, and others, 2 Atk. 324, 7,</p> <p>But if there were no proofs of fraud, the court would relieve on the ground of mistake. Assent is necessary to the completion and validity of all contracts. But there cannot be an assent where the party is ignorant of the con-,tents of the paper he subscribes. % Bro. C. C. 150. Powell on Contracts, 134.</p> <p>The court relieves most readily, in cases where a guardian, or one standing and acting in that relation, takes an advantage of the confidence of his ward, and turns it to his own advantage. 2 P. Wms. 205. See Cole vs. Gibson ; 1 Ves. 503, Turton v. Benson ; 1 P. Wms. 496, 8; 3 P. Wms. 129, 374; 2 Ves. 547 ; 1 P. Wms. 118.</p> <p>Parol evidence will be received to explain such frauds or mistakes.. Sugden 110, 118; 1 Bro. C. C. 341 ; Í Bro. C. C. 92,3.</p> <p>There is no ground for the charge of fraud in this case-. If there be any thing wrong,- it is by mistake, which is essentially different. ■</p> <p>The party cannot allege He did not read the deed, (Sugden 119,) where there is no restraint, or contrivance to prevent; where he can read and undertakes' to read for himself. And it is in proof that he took up the deed, and began to read it / there was no restraint oii him. If he did not read the deed, it was his own fault. Here theft is a deed regularly executed by the parties interested: He who alleges that it was intended to hirte made á different deed, must prove that intention. But the proof here is not sufficient to establish that. Courts of justice must abide by the written acts of the parties, unless shewn clearly to have been erroneous by fraud or mistake. The' concurrent intention of all the parties as to the alleged agreement, differing from the deed itself, must be proved, and that by irrefragable evidence. The courts receive parol evidence on this subject with great hesitation and reluctance. See Sugden 108, 9, 110, 117,- 1Í9;</p> <p>It is true it is laid down, that if two persons employ d third person to'draw up minutes of their intention, and such person does not draw them accordingly, the case may be relieved, because it is a kind of fraud. Sugden 110. And in the case of Shelburne v. Inchiquin, 1 Bro. C. C. 341, the Lord Chancellor Thurlow, says, it is impossible to refuse, as incompetent, parol evidence which goes to prove that the words taken' down in writing, were contrary to the concurrent intention of all parties ; it is the only way of explaining latent ambiguities ; but it must be irre-fragable evidence, and it must be an essential ingredient to any relief under this head, that it should be on an accident perfectly distinct from the sense of the instrument. Lord Chancellor Eldon, in observing on these dicta, (Marquis of Townsend v. Strangroom, 6 Vesey, 328 ; Sugden, 108, 9,) said that Lord Thurlow seemed to say the proof must satisfy the court what was the intention of all parties ; and he added it must never be forgotten to what extent the defendant, one of the parties, admits or denies the agreement • i • m his answer.</p> <p>^ irnham v. Child, 1 Bro. C. C. 92, 3, parol evidence was refused to be received, to prove that part of the agreement was left out of the deed, it not being charged to have been omitted by fraud. •’ In that case, Lord Chancellor Thurlow laid down the general rule to be firmly established, that pai'ol evidence is not admissible to contradict, or even vary a deed : but that in cases of imputed fraud, it is admissible ; for the rule of evidence is not subverted, if there be clear proof of fraud ; but it must be quite dear.</p> <p>As to mistake of accident, if that be admitted, the court would not overturn the rule by varying the deed, for it would be an equity dehors the deed. Then it should be proved as much to the satisfaction of the court as if it were admitted. The difficulty of this is so great, that there is ho instance of its prevailing against a party insisting that there was no mistake.</p> <p>And surely the case of an alleged fraud, in the execution of a deed, must be proved at least as clearly as in a case of mistake.</p> <p>The pretence of a party neglecting to read the instrument, when he is capable of doing so, and there is nothing to prevent him, as a ground for breaking through the rule, forbidding parol evidence, is not listened to favorably. It is his own folly-1 — Where a lessor drew a lease for one year, instead of 21 years, and then read it for 21 years, the lessee brought his bill to be relieved, but as he could read, it was deemed his own folly, and as the case was within the statute, his bill was dismissed with costs. See Skinner’s Reports, 159; Sugden, 117. See also Harwood v. Ellis, 2 Vesey, 195.</p> <p>It must be observed that there is no proof át all of the terms and provisions alleged in the bill to have been agreed on. The answer denies the terms stated ; and the answer is not sufficiently contradicted. The presumptions arising from the hasty execution of the deed, from the not recording it during the life of Mrs. Picton, and other circumstances relied upon, do not amount to that proof required to shake a formal deed regularly executed.</p>

THIS was a bill filed by the complainants to make the defendant liable on an administration bond, in which he had joined as surety with Edwin Gairdner, who had administered in this state on the personal estate of George Bague, for certain suras of money received by said Gaird-ner, for tbe said estate, from its debtors, and not account-eel for; and also to oblige the said William Blacklock to account for a certain sum of money alleged to have been received by him, from a…

THE bill in this case was filed by the complainant, who claimed a certain tract of land, to obtain an injunction against the defendant to restrain him from cutting timber, and comiriitting waste on the said land, then in the possession of the defendant, who claimed the same by an adverse title, and was in the cultivation of part thereof.

<p>THIS was a bill to obtain an injunction to restrain tbe defendant, who was a British subject, from enforcing a judgment obtained on a bond of Alexander Inglis, since deceased; and to set aside said bond as improperly obtained ; and that the accounts between the parties should be referred to the master, to ascertain what was legally due.</p> <p>The bill set forth, that the' deceased residing in America before the revolutionary war, had commercial dealings with defendant, residing in England; and that at the peace of 1783, a considerable balance was due by the former to the latter. That Inglis being in London in 1784, was induced by threats of a Suit to give bond for the balance dtie Nutt, including all the interest charged in defendant’s account, and which Inglis was not by law liable to pay, but being ignorant of his rights, Mr. Inglis reluctantly executed the bond. That Inglis died in 1791,before any adjudication was made by the courts of this state, on the question of interest during the war, on British debts.</p> <p>That an action was, after Inglis’s death,- commenced against complainant as his executor on said bond, by defendant’s agent Mr. Powell, and complainant suffered judgment to gó by default, on the express condition and understanding, that suffering said judgment to go by default, should in no wise prejudice the question respecting complainants rights as to the war interest.</p> <p>, But defendant now claims the full payment of the war interest, and threatens tb enforce his judgment.</p> <p>Sill prays that defendant may be restrained by injunction from proceeding at law ; the bond brought into court and cancelled ; and that the defendant’s account may be referred to the master or a jury to ascertain the amount legally due, according to the principles established in the federal coüits* and prays general relief.</p> <p>The answer of. the defendant John Nutt, of London, sets forth, that Ingiis,.before the American war, carried on business with the defendant in a confidential manner. That before the. conclusion of the war, Ingiis left Carolina* and was not there when peace was made. That when peace took place, Mr. Ingiis prepared to return to Carolina,. and having expressed his wish to have his account with defendant settled, and that a bond should be taken for the amount, such account was made out, and the bond given for the balance, including 300/. for goods sold to Ingiis, in September, 1/84. Defendant denies that he ever used any threats to Ingiis, for the purpose .of obtaining skid bond j but the same was given voluntarily by Ingiis. That defendant has been informed that a judgment has been obtained against the estate of Ingiis, and that no plea was entered for the purpose of depriving defendant of the war interest on said bond : but that an application was afterwards made to deduct such interest, which application the court refused to grant; Defendant prays to be dismissed, &c;</p> <p>At the Hearing, the written evidence of Mr. R. W.. Powell* was produced, and read. Mr. Powell stated that he was the attorney in fact of John Nutt, at the time the suit was instituted, and judgment obtained on the bond of Mr; Inglis. He had no power, nor did hé consent or agree to compromise, or to give up or reserve the question of the interest during the war. '</p> <p>That the judgment at law was obtained in the usual course: and witness understood that when the defendant af-terwards attempted to get the judgment set aside, in order to be let in to a defence, to get rid of the interest during the war, the Court of Common Pleas refused to set aside the judgment.</p> <p>No evidence was adduced by the complainant of any duress, or threats in obtaining the bond in question ; and ihat point was not insisted on in the argument.</p> <p>argued that Mr. Inglis being in England when he gave his bond for the debt on his open account, including interest during the war, was then ignorant of his right to have that interest deducted. That such ignorance of his rights would excuse his giving the bond, and would induce this court to open the transaction, and to give complainants an opportunity of getting the benefit, of which he was deprived by such error. '</p> <p>That interest during the wár ought not to have been allowed. It was against reason and natural justice, that the citizens of this country should be obliged to pay interest on debts due to subjects of that government, which by inflicting the calamities of war on this country, prevented the beneficial us^ of the money. And that in consequence, of these national calamities, the courts of justice had interfered to protect the citizens from being obliged to pay interest during the war.*</p> <p>In the case of Greenwood vs. Higginson, though the account including- interest was acknowledged by Greed-Wood, yet the covirt opened it, & the jury struck off 7 years war interest. The counsel cited also the cases of Greenwood vs. the Executors of Maham, decided in 1791; and Greenwood vs. Air, iff 1795, in which interest during the war was disallowed* Also, 2 Dallas* 102, 132 ; 4 Dallas, 22; 1 Eq. Cas. abr. 84 ; 2 Bro. C. C. 150 : and 3 Ves. 456.</p> <p>See also Mr. Jefferson’s reasoning on this question in his- letter to Mr. Hammond, the British Minister Plenipotentiary. That part of his letter which applies to this subject, is copied'in- 2 Dallas, p. 104 to 110, in note.</p> <p>Hé argued that this was the case of a debtor deliberately settling' his account, and voluntarily given his bond for the balance,- including the war interest. This was a waiver of his'objections to the payment of interest during the war. There' was no injustice in this, and he would be bound’ to pay interest as secured by his bond. See 1 Term. Rep. 285, and 2 East. 469. There was no such ignorance of rights as would entitle the party to open this settlement, and get rid of this bond.- Thefe is' a nfarked distinction betweert the ignorance of the law,- and legal rights ;• and of the facts on which a man’s rights ate founded., An ignorance of the former does not excuse or release a man from his engagements. But Mr. Ingiis was in England, in the character of a British subject, and was not entitled to the benefit of such exemption from interest, if there had been such law, andhe was bound by his act done there.</p> <p>But justice is wholly against this plea to extinguish interest ; for the debtor has had the use of the creditor’s money, which entitles the lattef to interest* It would be inost mischievous, if the contests among nations should put the cords of justice, which bind individuals to each .other.</p> <p>There have been indeed some cases decided in Ameri,ca against the responsibility .of debtors to pay interest during the war, but they do not go so far as to establish a ge-' neral rule, and still less to release a party, who has voluntarily agreed to pay interest after the war was ended.</p> <p>They are generally, if not wholly, cases of account. And these decisions have been overruled by others of higher authority.</p> <p>In Massachusetts, an act of the legislature ■ was passed disallowing interest from J9th April, 1775, to 20th January, 1783 : but,in 1787,.the legislature repealed all laws repugnant to the treaty; and. their courts have ever since allowed interest during the war.</p> <p>The Supreme Court of the United States decided in favor of interest; four judges reversing the judgment of one judge brought up from the .Circuit Court in Virginia. 3 Dallas, 199, Ware, administrator of Jones, vs. Hylton— This decision was delivered after great consideration, and is binding on the State Courts, which have generally conformed to it.</p> <p>In the case of Crawford vs. Willing, 4 Dallas, 286 to 290, decided in the Supremé Court of Pennsylvania, the two judges present, Smith & Breckenrige, expressly declared that the effects of the revolutionary war would not furnish the defendants with a justification or excuse against^ the claim of interest.</p> <p>. The act of our legislature, for the payment of debts by instalments, expressly reserves the question of interest during the war with Great-Britain. See Judge Grimke’s collection of the Public Laws, p. 467.</p>

THIS was a bill filed against the master in equity, to recover to indemnity for an alleged misfeasance in his official capacity.

THIS was a very important case which it was proper to have reported with great fulness and accuracy. Great pains were taken to procure the papers and information for this purpose, but without success. The question was on the validity ’of an agreement for the sale of a very considerable property in this state, and an assignment thereof, made by persons residing abroad, for a price now alleged to have been greatly inadequate, and which the vendors seek to set aside.

IN this case the complainants filed their bill to oblige the defendant to deliver up to them their proportion of the estate of their brother the late Nicholas Winckler, jun. deceased, and to account for the rents and profits thereof.