Volume 21 — South Carolina Equity Reports

<p>The testator, after making a bequest of slaves, sold one of them in his life time— held thatt'he sale was, pro tanto, an ademption of the legacy. .</p> <p>Testator made a bequest of $8000, to the children of his grandson, such part of which, as might be necessary, to be applied in payment of a loan which had been made for the benefit of their mother’s separate estate — the surplus to be invested for their benefit, &c. The loan having been satisfied by other means during the life time of the testator, the Court directed the whole amount of the legacy to be invested by the executors for the benefit of the children, and the capital to be transferred to their guardian, as soon as one should be appointed.'</p> <p>A legatee to whom Insurance stocks had been bequeathed, which had subsequently depreciated in the life time of the testator, held not to be entitled to any thing more than the stocks as they stood at the time of the testator’s decease.</p> <p>Testator made a bequest “ to the children of his grandson,” to be paid one year after his death — held that only such children as were in esse at the death of the testator, and such as were born within one year after his death, and were alive at that time, were entitled to take.</p> <p>Where the father was unable to maintain his infant children, and they were the recipients of considerable legacies, the Court ordered a proper allowance to the father, for their maintenance and education, its disbursement to be accounted for annually before the Commissioner.</p> <p>When the things which form the subject of a bequest are capable of individuality, and have been enumerated by the testator — then the legacy is specific.</p> <p>The property in question proving to be more than was enumerated in the will, as “ the residue of my estate,” held that the residuary legatees were entitled to all the personal estate which might turn out not to have been well bequeathed to others.</p> <p>Speers’Eq. 85,</p> <p>Innes v. Johnston, 4 Yes. 574.</p> <p>Cambridge v. Rous, 8 Ves. 12L</p>

Before Johnston, Ch. at Charleston, June Sittings, 1846. The bill in this case was filed for the purpose of making partition of the estate of the late James Moore, among his heirs, and on the 25th day of June, 1844, an order was made, requiring Mr. Gray, one of the Masters of the Court, to sell the said real estate, including a house and lot in Meeting-street, opposite the Rail Road Depository, and to make distribution of the proceeds among the children of the said James…

Before Johnson, Ch. at Charleston, February Sittings, 1846. Johnson, Ch. The late John Coming Ball, of St. John’s Berkley, by his last will and testament, dated the 11th May, 1839, bequeathed and devised as follows: “I give and bequeath all my estate, real and personal, to my sister Lydia Jane Waring and her three children, John Ball Waring, Ann Simons Waring, and Francis M. Waring, to their heirs and assigns.” He left some few specific legacies, made no residuary clause to…

<p>Where there was no disability on the part of the complainants, the lapse of time is a sufficient bar to an account of the administration of one who, as executor, had filed his return twenty-five years previous, and had been dead more than twenty years.</p> <p>It is a well settled rule, that a lapse of twenty years balances the account of all antecedent transactions, unless there be some disability of the person entitled to the account, or some act or admission of the party liable to account, showing that it remained unsettled in that time, lapse of time need not be- pleaded formally. If there is enough in the answer to show that it is intended to be relied on, that is sufficient.</p> <p>Testator made a bequest of slaves to her daughter for life, with limitation over to the lawful heirs of her body — held that the daughter took an absolute estate in the slaves.</p> <p>l Hill Ch. Rep. 37.</p>

<p>The Court refused to order an allowance to a guardian (who was the for the maintenance and education of his ward, where she had lived with him, and it appeared that he had expended nothing on the same — and where he 'had never made such charge in his returns to the Commissioner.</p> <p>Commissions were alloweda guardian on moneys received for his ward, although not regularly accounted for — also on the sum found due by him, and ordered by the Court to be paid over to the ward.</p> <p>It is the duty of every trustee submitting his readiness to account, to file with his answer a statement of his account.</p> <p>Bice’s Eq. 2.</p>

<p>A will subsequently incorporated into a deed, remains a will, with all the functions of a will in relation to every species of property which, by its terms, it can carry, except that portion of property taken out of its operation by the deed; and as to all the property upon which it can act, it is subject to all the modifications of its provisions made by subsequent codicils.</p> <p>A decree which merely gives construction to a will generally and conditionally, will not survive to the husband of a deceased legatee, so as to entitle him to an account from the executor.</p> <p>The husband is not entitled to an account for a legacy to his deceased wife, except it be in the character of her administrator.</p> <p>Rice’s Eq. 243 Cheves’ Eq. 148. Speers’ Eq. 475.</p> <p>Rice’s Eq. 243.</p> <p>lb. 250.</p> <p>Ib</p> <p>Ib. 249.</p> <p>Rice Eq. 261. Cheves’ Eq. 156,7.</p> <p>Rice’s Eq 262. Cheves’ Eq. 156-</p> <p>g r,g ^ %75.</p>

<p>A guardian will not be permitted to expend upon the maintenance and education of his ward, more than the income of the estate, without the sanction of the Court.</p> <p>4 Vesny, Jr.-369</p> <p>3 Bra. c. C. 60 — 401.</p> <p>íóo.</p> <p>Morton etvx. ! 123.</p> <p>l Vern. 255. 3 Bro. C. 179.</p> <p>M-lowv Williams,' 558. ’ ^VotTÍt™7</p> <p>'</p> <p>& wife v- Logan, Speer¿c*-' '</p>

<p>wr't *n nature & fieri facias, which, under the Act of 1785, may be sued forth for the collection of money, decreed by this Court to be paid, must adopt the substance, and follow the form of & fieri facias at law, according to the capacity of the party defendant, whetner as executor, devisee, &c.</p> <p>The Act of 1840 provides that “no order or decree for the payment of money shall, as to third persons, without express notice, have any effect as a lien, on the estate, real or personal, of any person or estate intended to be bound thereby, but from the day when the brief or abstract shall have been delivered .to or lodged with the Registeror Commissioner,” &c.</p> <p>It is the duty of the Register or Commissioner, to sign no execution on a money decree, until the party applying for it complies with the provisions of the Act of 1840.</p> <p>Where it may be presumed, from their course in the suit, that executors have a sufficiency of assets to satisfy the demand against their testator, and they have alleged nothing to the contrary; after confirmation of the Master’s report, fixing the atnount of their liability, they will be consideied as having waived the objection, and execution ought to issue against them, as executors, in the usual form where judgment passes by default.</p> <p>Where there is a deficiency of assets, neither executor nor devisee can be held liable, if they make the proper defence.</p> <p>Where the creditor has no security but tire joint and several bond of the sureties nritli their principal, for his debt, he has a right to call upon any one of the sureties to pay it; and the Court will not delay enforcing his claims,'until the several remedies against the other sureties may be exhausted.</p> <p>7 £tat 111</p> <p>11 Stat 116.</p> <p>A. A. 1840, 116.</p> <p>1st Rich. Eq. Rep. 155.</p> <p>March 10th, 1846.</p> <p>7 Stat. of S. c. 2ii.</p> <p>van Hill’s L.K. 167-iecruts.’VS' ib. 239. 21^75.</p> <p>H Stat. of S. C. 116.</p>

<p>Before Caldwell, Ch. at Charleston, Sittings, 1847.</p> <p>Caldwell, Ch. The bill states that on the first day of June 1829, plaintiff obtained and entered up judgment in the Court of Common Pless, in Charleston district, against Richard W. Vanderhorst, for the sum of $14,571 42, on bond which, had been given, to plaintiff some years before, for the purchase money of certain negroes, sold by him to the said Richard W. Vanderhorst; that afterwards, on or about the. day of 183 , the said judgment being unsatisfied, and no payment having been made thereon, the said Richard W. Vanderhorst died, leaving a considerable estate, but with debts to a much larger amount, and a will appointing his widow, Mary Van-derhorst, executrix, and John Axson, Josiah Taylor, and Joshua W. Toomer, executors; that Josiah Taylor and Joshua W. Toomer renounced the executorship, and Mary Vander-horst alone proved the will, qualified and acted as executrix; that she possessed herself of all the estate of which the testator died possessed, and sold the same, and applied the money, in due course of administration, to the payment of his debts ; but the whole of the assets which came to her hands were applied to and absorbed by judgments and mortgages of the testator, of prior date to plaintiff’s judgment, and which were, therefore, entitled to priority of payment, and nothing was paid on account of his said judgment. Plaintiff further shows, that the said Richard W. Vanderhorst, at the time of his death, besides the property in his possession, and which was administered by his executrix, was entitled to a vested interest in remainder, in one-third part of a large estate, which by the will of his grandfather, Richard Withers, had been devised to Mrs. Sarah C. Vanderhorst for her life, and at her death to her children ; that the said Sarah C. Vanderhorst, who, after the death of the said Richard Withers, her father, being a widow, intermarried with William Cartwright Shack-elford, had three children, namely, the said Richard W. Van-derhorst, William C. Shackelford, and Mary L. Shackelford, who intermarried with Thomas Butler; and that the said William C. Shackelford and Mary L Butler, as well as the said Richard W. Vanderhorst, died in the life time of the said Sarah C. Shackelford; that the said Sarah C. Shackelford ^as lately died, whereby the estates of the said Richard W. Vanderhorst, William C. Shackelford, and Mary L. Cutler have become respectively entitled, each to one-third part of the said estate, of which their mother was tena't for life, under the will of her father Richard Withers; that this estate consists for the most part of about 120 negroes, and some other personal chattels ; that soon after the death of the' said William G. Shackelford, his widow Mary Shackelford, took out letters of administration of his estate in Georgetown district, he having died intestate in that district, leaving his widow and three children, namely, Richard W. Shackelford, R. F. W. Shackelford, and Susan, the wife of Benjamin W. Rumney, and the said Mary Shackelford has since intermarried with William Lester; and since the death of the said Sarah C. Shackelford, the said Mary Yanderhorst and John Axson, the executrix and executor of the said Richard W. Yanderhorst, being both dead, Dr, Henry Y. Toomer has lately taken out letters of administration de bonis non, with the will annexed, of the said Richard W. Yanderhorst, and H. Pinckney Walker has taken out letters of administration of the estate of the said Mary L. Butler.</p> <p>The bill further sets forth that the said Dr. Henry Y. Too-mer has also taken letters of administration de bonis non, with the will annexed, of the said Richard Withers, and denies and pretends that the negroes and other property of which the said Sarah C. Shackelford was possessed for life, under her father’s will, are, since her death, unadministered estate of the said Richard, and that he as administrator of that estate, is entitled to take possession of and administer the same. The said Sarah C. Shackelford left a last will and testament, whereof she appointed her grandson Richard W. Shackelford executor, and that the said Richard W. Shackelford now has custody and possession of the negroes and other property of which the said Sarah G. Shackelford was tenant for life, as aforesaid.</p> <p>The bill charges the said Henry Y. Toomer, Richard W. Shackelford and one Rumney, who has intermarried with a daughter of the said William C. Shackelford, and claims, in right of his wife, to be entitled to a share of the said estate, intend to sell the negroes, or remove them beyond the jurisdiction of this Court, and prays that defendants Henry Y. Toomer, W illiam Lester, and Mary his wife, H. Pinckney Walker, and Richard W. Shackelford, executor of Sarah W. Shackelford deceased, may answer the charges of the bill, and for ah account of the estate of which Sarah C. Shackel-ford was tenant for life, under the will of her father, with remainder to her children, and for partition thereof, and that the share to which the estate of the said Richard W. Yander-horst is entitled may be ascertained and allotted, and the same applied to the payment of his debts, in due course of istration, and that plaintiff’s judgment may be paid, and that Henry V. Toomer, Richard W. Shackelford and Rumney, may be restrained from selling or otherwise disposing of the negroes, or of any part of the said estate, and for a writ of injunction, &c.</p> <p>The joint and several answer of Benj. W. Rumney and Susan his wife, neither admits nor denies the allegations in plaintiff’s bill, touching the judgment against Richard W. Yander-horst; the condition of his estate at the time of his death, and the administration of the same. These defendants have no knowledge thereof. They admit that Richard Withers, father of the late Mrs. Sarah Shackelford, did leave a large number of negroes to his said daughter during her life, and at her death to her children ; but Mrs. Sarah Shackelford had, besides the children mentioned in the bill, two other children, James and Hugh, by her second husband Wm. C. Shackel-ford, both of whom died in her life time, while still of tender years, unmarried and intestate, and who, according to plaintiff’s construction of the will of Richard Withers, took an interest in the will of the said testator, to a portion of which these defendants would be entitled, in right of this defendant Susan, as one of the descendants of Wm. C. Shackelford and Sarah his wife. These defendants admit the death of Mrs. Sarah Shackelford, and that she left a will appointing her grandson R. Withers Shackelford her executor, and they have heard that Dr. H. Y. Toomer has administered on the estate of R. W. Yanderhorst, deceased, with the will annexed ; they also admit that William C. Shackelford, father of this defendant Susan, and son of Mrs. Sarah Shackelford, did, sometime since, die, and that his widow administered on his estate, and afterwards intermarried with Wm. C. Lester; and that Mary Lupton, daughter of Mrs. Sarah Shackelford, who intermar ried with Thomas Butler, is also dead, and that H. Pinckney Walker has administered on her estate; and this defendant Benj. W., denies that he has ever attempted or intended to eloign or dispose of any of the said negroes, bequeathed under the will of Richard Withers, and in possession of Mrs. Shack-elford at the time of her death, or to remove the same beyond the jurisdiction of this Court. These defendants are not in anywise concerned or interested in the estate of Richard W. Yanderhorst, or the administration of the same, but only desire that the portion and interest to which they are entitled out of that property, bequeathed by Richard Withers, deceased, may be allotted and set apart to them in severalty, <fcc.</p> <p>The answer of Henry Y. Toomer, as administrator, and in his own right, denies a’l knowledge of plaintiff’s judgment against R. W. Yanderhorst; admits that Mary Yanderhorst did qualify as executrix of the will of R. W. Yanderhorst, but being wholly unacquainted with business, she intrusted the management of the- estate to her solicitors, and therefore no books, papers, or documents of any kind, that would show the amount of debts that were paid or left unpaid, came into the possession of this defendant, after the death of the said executrix of R. W. Yanderhorst, when he qualified as her executor. But this defendant is informed and believes, that the said estate was known tobe partially insolvent in the lifetime of the said executrix. Defendant is informed and believes, that R. W. Yanderhorst, in his lifetime, had a contingent interest only in one undivided third part (if not in the whole,) of the estate of his grandfather Richard Withers, to which he would have been entitled if he had survived his mother, Mrs. Mary C. Shackelford, but the said Mary C. Shackelford survived her said son many years, as she did her other children; by reason of which this defendant is advised and believes, the said estate of which she died possessed, on her death vested in her grand children, as there were no children alive in whom it could vest. This defendant, therefoi-e, took out letters of administration with the will annexed, for the purpose of making partition of the said estate, under the direction of this honorable Court, among her surviving descendants, “share and share alike,” according to the intention of the will of the said Richard Withers, to which this defendant craves reference, and more particularly to the following part thereof; “and if I should have no child by my loving wife Frances Withers, I do then give and bequeath the use of all my estate, both real and personal, to my daughter Sarah Yanderhorst, during her life, and at her decease to be equally divided among her children, share and share alike.” This defendant further answering says, that R. W. Yanderhorst was the only child of the said Sarah, then bom, inasmuch as she had no other child by her first husband Elias Yanderhorst, who survived her said father some years; and she afterwards intermarried with her second husband Shackelford, by whom she had two children; that Frances Withers, the wife of testator, died without leaving any child or children, and possession was given by the executors to his daughter Sarah, according to the provisions of the above clause of the will; that the said Sai ah Shackelford died on the day of November last, leaving a will, of which R. W. Shackelford, her grandson, is now qualified executor, and by which she disposed of certain moveables of her own acquisition, which defendant believes she had a right to do; but her executor, at the time of her death, took possession of the personal property left to her for life by the will of her father, which consisted of one hundred and nine negro slaves, and not one hundred and twenty, as in the bill set forth : And this defendant further answering shows, that by the said will of Richard Withers, other tingent interests were created in favor of John Withers, Ann Calvert, Rebecca Calvert, Wm. Shackelford, and Richard Shackelford, which defendant is advised and believes could not be determined, until after the death of the said Sarah Shackelford, as will more fully appear by reference to the will, (Exhibit A.) Admits that he took out letters off administration on the estate of R. W. Yanderhorst, not because he believes the said estate entitled to any portion of the estate of Richard Withers, left by the death of the tenant for life, but partly to prevent strangers from administering t.ereon, and partly to enable him to ascertain the true condition of the said estate, or whether there be any estate, besides a small tract of land in Christ Church Parish, which this defendant is informed and believes belongs to the said estate, and has not been disposed of; denies all manner of combination with any persons whatsoever, to remove the above negroes beyond the jurisdiction of this Court; on the contrary, this defendant gave large and sufficient security to the Court of Ordinary for Charleston, as administrator of Richard Withers, and has also at great expense returned an inventory of said slaves to said Court, and petitioned said Court for leave to sell the same for a division, which petition was refused, at the instance of plaintiff and others; and James W. Gray, Esq., one of the Masters of this Court, is now acting on the said account or inventory, (the matter having been referred to him) so made at the expense of this defendant; and he therefore prays that the amount so expended be refunded to this defendant, out of the first monies that shall come into the hands of the Master on account of the said estate or estates. And this defendant denies all, &c.</p> <p>The separate answer of Henry Pinckney Walker neither admits or denies that plaintiff was a creditor of, or had a judgment against R. W. Yanderhorst in his lifetime; defendant has heard and believes, that R. W. Yanderhorst died about the time stated, and left a testament; has no knowledge of the administration of his estate, and neither admits or denies the same. Admits that R. W. Yanderhorst was, as one of the children of Sarah C. Yanderhorst, entitled to a share of a large estate, devised to the said Sarah C. Yander-horst, by Richard Withers, her father, and that she had three children, Richard W. Yanderhorst, William C, Shackelford, Mary Lupton Shackelford, this defendant’s intestate, who afterwards married Thomas Butler, and that all these children died in the lifetime of Mrs. Shackelford; admits that Mrs. Shackelford died at or about Nov. 1845, and the estates of the said children have become entitled to a third part of the estate of which Mrs. Shackelford was tenant for life ; believes that after the death of Wm. C. Shackelford, his widow ad-mmistered on his estate, and that she has since intermarried with his co-defendant William Lester: that H. V. Toomer, his co.¿iefen(jant, has also taken out letters of administration de bonis non et cum testamento annexo, upon the estate of R. W. Vanderhorst; and that this defendant has taken out letters of administration of the estate of Mary Lupton Butler ; that the said Henry V. Toomer has also taken out letters of administration de bonis non et cum testamento annexo, of the said Richard Withers; that the said Sarah C. Shackelford did leave her last will and testament, whereof she appointed Richard W. Shackelford executor, and that the said R. W. Shackelford now has the custody and possession of the ne-groes and other property of which Mrs. Shackelford was tenant for life. This defendant claims one third of all and singular the negroes and other estate of which Mrs. Shackel-ford was tenant for life, and is ready and willing to assent to any just and fair partition and division whereby the rights and interests of his intestate shall be respected and maintained, and therefore prays to be hence dismissed with his reasonable costs and charges.</p> <p>The separate answer ofR. Withers Shackelford neither admits or denies the allegations in the bill touching the judgment of plaintiff, and the debt claimed to be due from the late R. W. Vanderhorst, and the judgment obtained thereon in his lifetime, nor as to the condition of indebtedness of said R. W. Vanderhorst at the time of his death; nor as to any last will .and testament left by him, or the administration of his estate, of all which things this defendant is entirely ignorant. This defendant admits that Richard W. Vanderhorst was one of the children of Mrs. Sarah W. Shackelford, deceased; and that by a clause in the will of Richard Withers, certain property, real and persona), was devised and bequeathed to Mrs. Shackelford during her life, and at her death to her children, but says that there are other claims in the said will also, relating to the said legacy and devise,-and the nature of the interest devised to the said R. W. Vanderhorst, according to a proper construction of the whole said will, this defendant cannot determine. Admits further, that a considerable estate, consisting of a large number of negroes, went into the possession of his testatrix Sarah Shackelford, as tenant for life, under the will of her father Richard Withers; and after the death of Vanderhorst, the said Sarah married William Cartwright Shackelford, grand-father of this defendant, and that she had born to her, R. W. Vanderhorst, by her first husband, and by her second husband, Wm. C. Shackelford, father of this defendant, and Mary Lupton Shackelford, who after-wards intermarried with Thomas .Butler, but that she had also by the said W. C. Shackelford two other children, both of whom died unmarried, without issue, and intestate. Further admits that the said Sarah Shackelford lately died, leaving this defendant her executor, and that she was at the time oí her death in the possession of a large number of negroes, to wit, bequeathed to her during her life, under the will of Richard Withers; that Shackelford, after the death of her husband Wm. C. Shackelford, did take out letters of administration on his estate, and that she afterwards married William Lester, and has heard and believes that Dr. Henry V. Toomer has lately taken out letters of administration de bonis non on the estates respectively of Richard Withers and Richard W. Yanderhorst, and the said Henry Y. Toomer now pretends that he is entitled to the negroes of which Sarah Shackelford was possessed as tenant for life, under the will of Richard Withers, as his unadministered estate. This defendant denies that he has ever attempted or intended to sell the said negroes, or remove them beyond the jurisdiction of this Court, but on the contrary is ready to act in the premises as this Court shall direct; and submits his rights under the will of Richard Withers to the adjudication and determination of this Court. ' Denies all, &c. and prays to be hence dismissed with his costs and charges, <fcc.</p> <p>The answer of Elizabeth F. W. Shackelford, a minor, by Thomas. J. Gantt, her guardian ad litem, neither admits nor denies the allegations of the bill touching the condition of the estate of Richard W. Yanderhorst, or the rights of .complainant as a judgment creditor of the said R. W. Yanderhorst, as none of these things are within her knowledge. This defendant has heard and believes, that besides the children of her grand-mother, the late Sarah C. Shackelford deceased, mentioned in complainant’s bill, there were two other children, James and Hugh, born to her by her second husband Wm. C. Shackelford, both of whom died under the age of twenty-one, intestate and unmarried. And this defendant further says, she is an infant, and submits her rights and interest under the will of her great grand-father, Richard Withers, and in the property bequeathed by him, to the protection of this Court.</p> <p>The question in this case is, did Richard W. Vanderhorst take a vested interest under the will of Richard Withers ? The clauses out of which the question arises are as follows, “and if I do not have a son, I do then give and bequeath the half of my lot of land in Charleston to my grand-son Richard W. Yanderhorst, that is thirty feet in front, fronting Union street, and Queen street, and one hundred feet in depth, at the decease of my daughter Sarah Yanderhorst, or at the age of twenty-one years, which shall first happen, to him, his heirs and assigns forever. And if I should have no child by my loving wife Frances Withers, I do then give the use of all my personal estate not mentioned, unto my daughter Sarah Vanderhorst during her natural life, and at her decease to be equally divided, share and share alike, amongst all her children, t"> them and their heirs and assigns forever ; and if I should have no child by my loving wife, I do then give and bequeath the use of all my estate, both real and personal, to my daughter Sarah Vanderhorst during her life, and at the decease of my daughter Sarah Vanderhorst, to be equally divided amongst her children, share and share alike, to them and their heirs- and assigns forever, &c. and if it should so happen that I should leave no children, and my daughter Sarah Vanderhorst should die and leave no children, then and in such case, at the decease of loving wife Frances Withers, I do give the whole of my estate, both real and personal, to be equally divided, share and share alike, amongst John Withers, Ann Calvert, Rebecca Calvert, William Shackel-ford and Richard Shackelford, to them and their heirs forever.”</p> <p>The consideiation of the whole will, where there is an apparent inconsistency in the parts, generally enables us to perceive the intention of the testator, and to give such a construction as will reconcile the conflicting clauses. The relative position of the clauses is of no importance, unless there is an irreconcilable inconsistency between them — then the last clause must prevail. The testator appears to have selected four objects of his bounty, his wife, daughter, grand children, and the ultimate remaindermen.</p> <p>He contemplated three events as important contingencies, 1st. His having no child by his wife, Frances Withers, which occurred. And 2. Having no children at his death. And 3d. His daughter’s dying having no children, which were necessary to co-operate before the death of his wife, Frances Withers, or the remaindermen could take no estate; these events did not occur, and therefore that part of the will is as inoperative as if it had not been inserted, and has no weight in the construction of the other clauses, only so far as it may illustrate his general intention. When there is a clear vested interest, not divested, the express contingency on which it was to be divested not having happened, the construction of the clause giving the vested interest is not to be affected by any thing connected with the contingency that would otherwise have divested the estate. In Harrison v. Foreman, it was held “ thart when there are clear words of gift, giving a vested interest to parties, the Court will never permit that absolute gift to be defeated, unless it is perfectly clear, that the very case has happened in which it is declared that interest shall not arise.” If the previous clauses give a vested interest to Richard W. Vanderhorst, and the contingency on which it was to be divested never happened, the vested interest remains as if that contingency had not been annexed to it. The first inquiry is what estate did Richard W. Tan-derhorst take under the following words of the will, “ and if, I should have no child by my loving wife, Frances Withers, I do then give the use of all my personal estate not mentioned, unto my daughter, Sarah Yanderhorst, during her natural life, and at her decease to be equally divided, share and. share alike, amongst all her children, to them and their heirs and assigns forever this is a residuary clause of the personal property of the testator, and brings the claim of the personal representative of Richard W. Yanderhorst within the rule, that when there is a residuary bequest, the intention of the testator must be very clearly indicated in order to postpone the vesting of the legacy. One of the objects of the rule, is to prevent an intestacy, which is always incompatible with the intention of one who makes a will. This is analogous to giving a legacy out of a particular fund, which becomes, at the death of the testator, separated from his estate and appropriated to a specific purpose, first for the use of Sarah Vanderhorst for her life ; and second, at her death, it is distributable between her children ; and there being no survivor-ship provided for by the will, it would seem that the interest was vested. It is very clear, if instead of the present legacy, real estate .had been given after the death of the tenant for life to her children as tenants in common,, but if either of them died before her deaths then to the survivor, there can be no doubt it would have been a vested estate, to be divested on a contingency of survivorship; and there is no reason why personal property does not pursue the same course. When a gift is made to B. with a charge to C. it is a distribution of the fund between the person to take in the present, and him who is to take in the future, and the gift to the latter vests in him at the same moment it does in the former. The general rule which has been drawn from the host of cases of this kind, with which the books abound, is that if futurity be annexed to the substance of the gift, the vesting is suspended, but if it appears to relate to the time of payment only, the legacy vests instantly. Words directing distribution between two or more objects at a future time, fall within the same category as a direction to pay, and therefore when they are engrafted on the gift, which would without these super-. added expressions confer an immediate interest, they do not postpone the vesting.</p> <p>An important distinction is to be observed between a case where payment or distribution is deferred, not merely until the lapse of a definite interval of time, which will certainly arrive, but until an event which may or may not happen; the effect it would seem is to render the legacy contingent, unless perhaps in the case of a residuary bequest. If it appears that the distribution or payment, either on account of some interest being given to the person on whose death the gift is to take effect in possession, or of some difficulty attending c°llect:ing of the testator’s assets, the legacy will be considered independent of the time specified, and will vest at the death of the testator. When the testator has any ulterior object in deferring the vesting of the legacy to the time appointed for the legatee to take possession, then theie would be some ground to consider it contingent; but when the enjoyment of it by the first taker is the only obstacle that postpones the possession, it is no reason why it does not vest at the same instant.as the interest of the tenant for life.</p> <p>There was no other contingency annexed to the legacy’s vesting in Richard W. Yanderhorst, than in his mother: it was only necessary that the legacy should not lapse in the lifetime of the testator ; but if the daughter had died in her father’s lifetime, it is very clear the grandson would have taken the legacy; her death would not have defeated his rights- — -the particular estate, or rather interest to which she was entitled during her life, and the remainder to him vested at the same time; and there is no event designated in the will that has occurred that can divest this legacy. A contingent interest may be transmissible to the personal representative of the legatee, according to the nature of the contingency on which it is dependant. If the gift be to children who shall live to attain a certain age, survive a prescribed period, or a. specified event, the death of any child before the contingency* has the effect of precluding such deceased child out of the of presumptive objects; but when the contingency on ^1(3 vesting depends, is a collateral event irrespective of attainment to a given age. and surviving a given period, the death of any child pending the contingency, works no such exclusion, but simply substitutes and lets in the legatee’s re-preservative for himself. When the parties to take are ascertained, though their interest rnay be contingent, if they die before the contingency happens they take an interest that is transmissible to their representatives: • it would have been a different contingency if the limitation had been to the children of Sarah Yander-horst that might survive her.</p> <p>The expression in the clause, “ if I should have no child by my loving wife, Frances Withers, I do then give,” clearly indicates the time when the use vests in Sarah Yanderhorst* and remainder in Richard W. Yanderhorst — the property was transmissable to them eo insianti (after the death of the testator) that event occurred ; and it would be inconsistent with the established rales of construction to hold that the remainder was suspended to the death of Sarah Yanderhorst, as the will provides for no other event to happen prior to the possession of the remainder man, hut the contingency of her having other childen, on whose birth an interest vests in them, but their births do not divest the estate in remainder that had, already vested in R. W. Yanderhorst, except pro tanto to let the younger children into a share. This was certainly the intention of the testator: he had at the making of his will and his death, but one daughter and one grandson, and his object was to make a suitable provision for his grand children, if he left no other child, and to put all his grand children up on an equality, as they must be the children of the same mother : this view is strengthened by the fact that the testator had made provision for his grandson Richard W. Vander-2 horst by-a previous clause: it cannot be implied from any part of the will that the testator intended that the issue any of his grand children that might die in their mother’s lifetime should not take the shares bequeathed to such deceased children : much less could it be inferred that he intended in case his grand children died in the lifetime of their mother, that at her death the estate should go over to the ultimate remaindermen in preference to her grand children.</p> <p>A. limitation over disposing of the property to another, in case of the prior devisee dying under certain circumstances, always affords a strong argument in favor of the prior devi-see taking a vested interest: and the weight of the argument, especially as to the intention of the testator, is proportionally increased by the proximity of relationship, when the class of intermediate remaindermen are lineal decendants of the testator and the ultimate remaindermen are collateral and remote relations.</p> <p>The same arguments may be applied to the succeeding clause of the will, by which the testator, if he should have no child by his wife, gives the use of all his real and personal estate to his daughter, Sarah Vanderhorst, during her life, and at her decease to be equally divided amongst her children, share and share alike, to them and their heirs and assigns forever. This differs from the preceding clause in two points, first, its subjects are real and personal property; second, it cannot be technically called a residuary clause; but these circumstances are immaterial, and do not diminish the force of the argument, or change the conclusion.</p> <p>It is therefore ordered and decreed, that the legal representative of Richard W. Yanderhorst, deceased, is entitled to the one-third of the real and personal estate of which his mother, Sarah C. Shackelford, had the use for her life, under the will of her father, Richard. Withers, (with remainder to her children) and that the same be applied in due course of administration to the payment of the plaintiff’s debt: It is also ordered and decreed, that it be referred to the Master to report upon the accounts : the parties to be at liberty to apply for any further order that it may be necessary and proper to obtain: the costs to be paid out of the estate of Richard W. Yanderhorst, deceased.</p> <p>Defendant, H. Y. Toomer, adm’r. Richard W. Yanderhorst, appealed from the decree of the Chancellor, on the following grounds:</p> <p>1st. Because his Honor erred in deciding that the interest of Richard W. Yanderhorst, was a vested interest at the death of Richard Withers, the testator.</p> <p>2d. Because his Honor erred in applying the rule for the opening of a vested remainder, to let in after-born children, to this case. The said rule being only applicable to marriage settlements, where children are never supposed to be in esse at the time of the execution of such deeds — or to wills in the nature of marriage settlements.</p> <p>3d. Because the only rule truly applicable to the interpretation of the will of Richard Withers, is the intention of the testator, which in no form can be made to agree with the decree of the Chancellor, but by striking out a part.</p> <p>4th. ■ Because the intention of the testator cannot be arrived at, but by supposing a contingent remainder vesting in the children of Sarah Yanderhorst at the time of her death, and not before. The condition being that they should survive both Frances Withers and herself, the estate being by the terms of the will otherwise limited over to third persons— grand children in such cases being by common interpretation of law included in the word “ children.”</p> <p>5th. Because if the estate vested at all at the time of testator’s death in R. W. Yanderhorst, the whole of it vested, and the rule for letting in'-after-born children, applicable to real estate at times, is not applicable to the present bequest.</p> <p>6th. Because his Honor erred in directing the debt of complainant to be paid out of these assets, other and prior judgments to a much larger amount than the whole of the probable sum thereof, being of record and remaining unsatisfied against the said R. W. Yanderhorst, in'the Court of Common Pleas of Charleston District, besides additional claims not yet ascertained by the administrator.</p> <p>7th. Because the decree of the Chancellor is in other respects contrary to Law and Equity.</p>

Before DUNKIN, Ch. at Charleston, Sittings, 1847. DUNKIN, Ch. John Dougherty died in November, 1844.

Before Dunkot, Ch. at Charleston, Sittings, 1847. His Honor stales the case as made by bill and answer in the following decree: Dunkot, Ch. Thomas Wilkes Seabrook, the testator, died in Florida, leaving in force his will, dated 29th April, 1835. At the time of the execution of his will, and at his death, his estate consisted of a tract of land in Florida, containing some 210 acres, and forty-four negroes.

Before Johnston, Oh. at Georgetown, 1847. Johnston, Ch. This is a bill for the specific execution of a contract for the sale of a tract of land.

Before Dunkin, Ch. at Charleston, June Sittings, 1847. His Honor’s decree states all that is necessary to the under-. standing of the preliminary point, which was alone decided in this case. Dunkin, Ch. Mrs. Susan S. Wilson, the testatrix, died in December, 1846. This bill was filed on the 15th May, 1847, about five months after the decease of the testatrix.

Before DargaN, Ch. at Charleston, 1847. Petition states that John Robert, by his will, bearing date 21st December, 1833, among other things devised as follows : “ All the rest and residue of my estate, not otherwise disposed of by this instrument, it is my will and desire shall be equally divided between my two sons Lucius C. Robert and John H. Robert, and my three daughters, Cornelia E. Riley, Sarah Isabella A. Robert and Elizabeth A. Robert, under such limitation as will…

Mejore Dunkin, Ch. at Charleston, July Sittings, 1847. The premises in question (the new Theatre,) had been ordered by the Court to be sold in satisfaction -of a debt to secure the payment of which they had been mortgaged to the Bank of the State of South Carolina. J. B, Campbell, one of the defendants, had previously become the purchaser of the said premises at Sheiiff’s sale, under an execution junior to the mortgage.

Before Caldwell, Ch. at Charleston, February Fittings, 1847. This case came up before Chancellor Johnston at Charleston, June, 1846, on the report of the Master, to whom the matters of account of the executors of the late Mrs. E. M. A. Jenkins had been referred at the previous term; and upon the coming in of this report, the Solicitor for the said Chas. Myers and Wm.

<p>The grant in the deed rvas to A, “ his heirs and assigns forever,” but should die “ without leaving issue of his body,” then over, &c. — 7ieW that A took a fee simple, and not a fee conditional, at common law.</p> <p>i Hill’s Ch. R. 265.</p> <p>2 Fonbl. 56.</p> <p>1 Inst. 385. Cited by Preston on Estates 306.</p> <p>2 Seh. & Lef. 718, and 1 Ei~hardson's Eq. Reports,</p> <p>2 Bailey' 246. 2 Hill E. B.. 199.</p>

<p>B€fore PUNKIN, Cu. ~t Walterborough, February ~S1itting~ 1847.</p> <p>The bill states that complainant, Thomas Pye, intermar~ l~ied with Emeline M~ E. daughter of Dr. Wm Oarr, the de-feiidant, in the year 1844. That on the 10th of October, 1825, one Eliz. Dawson, by her bill of sale~ d~ily executed, gave, granted and anid to `complainant, Emeline M. E. Pye, then Emeline M. E. Oarr, a certain female slave, named Sue, With her isse and increase, to her the said Emeline M. .E. Carr, her heirs and assigns foreve; and referred to said bill of sale, a copy whereof was filed. The bill further states, that the said Emeline M. E. Pye, being, at that tune, an hi-fant of tender years, her father, the defendant, Wm. Oar; took the said slave, Sue, into his possession, and has kept posses-i sion of the sanie ever since, together with a large issue and increase thereof, a part of whom are named Molly, Sam, Phil~ us, Leah and infant, and used and worked the same as hi~ owli, and applied the proceeds of their labor to his individual use,-anct that complaix~ant, during all this time, being an in~ fant of tender years, remained, ignorant of her rights, and of the mode of asserting them, until her intermarriage with com~ ~lainant, Thomas Pye.</p> <p>~Bi1lpays that def~endant, Williath Oar; may ~et forth the ~1ames of all the slaves aforesaid that he may be compelled to deliver up to complainants the same~ and tt account for the ~nnua1 hire of all the said slaves, from the time they came into his possession.</p> <p>The defendant admits the marriage of complainants: admits the execution of the bill of sale of Sue: by EIiz. Dawson, as set forth in the bill, but denies that said Eliz. Dawson ever made a. gift or sale of said slave to cornplainant,-but that Eliz. Dawson, having consicterably overcirawn her portion of the estate of her deceased husband, ~1ohn Oarr, he, the defen~ dant, paid. the appraised value of Sue, and had the bill of sale executed by Eliz. Dawson to his daughter, in order to pro~ tect her from the heavy claims then preferred against him~ The defendant admits that he took possession of Sue in the (year 1825, and the following are her issue: Molly, born in 1826; Sam, bom two years and a half after Molly; and Phillis, born some time after; Lea, born in 1837, and Sue died in 1838 ; Molly also had an infant in 1844. These, defendant states, are all the issue of Sue, and he avers that he has delivered all of them to complainants. The answer further states, that he supported and educated the complainant up to the time of her marriage with Thomas Pye.</p> <p>Defendant denies his liability to any account for the hire of Sue and her children, inasmuch as the entire income arising from their labor was not sufficient for the support and education oí complainant, after deducting expenses, and the bringing up of five negroes, in so short a time; and submits that the bill of sale of 10th October, 1825, should be regarded as a deed'of trust from Eliz. Dawson to this defendant, reserving the right to him to employ the clear income arising from the hire or labor of the slave Sue, to and for the sole benefit of complainant.</p> <p>After hearing the case, his Honor, Chancellor Johnston, pronounced the following decree :</p> <p>Johnston, Ch. On hearing the bill and answer in this case, and it being admitted ihat the slaves were delivered before bill filed, on motion of DeTreville <fc Perry, for complainants, it is ordered that it be referred to the Commissioner to inquire and report, what is the value of the hire of the ne-groes named in the bill and answer; for how much of it the defendant, Dr. Carr, ought to be made responsible; and how much money was expended by the defendant for the support and education of the complainant’s wife during her minority, and for the support and rearing of the young negroes, the issue of the negro Sue: and whether the said Dr. Carr was of sufficient substance and means to support and educate his said daughter, without employing, for that purpose, the wages and profits of the said negroes. It is further ordered, that all the equities of the case be reserved until the coming in of the report.</p> <p> Commissioner's Report. </p> <p>The Commissioner respectfully submits the following report of his investigations, under the decretal order of this honorahle Court.</p> <p>First. As to what is the value of the hire of the negroes -named in the bill and answer: for how much of it the defendant, Dr. Carr, ought to be made responsible, and, how much money was expended by the defendant for the support and rearing of the young negroes, the issue of the negro Sue, he reports:</p> <p>That he has been attended by the solicitors of the parties at references from time to time down to the 10th instant, and from the testimony before him, it appears the woman Sue came into the possession of Dr. Carr about Oct. 10th, 1825, and that she died in the summer of 1838. Her child Molly, was born early in 1826; Sam, the latter part of 1828, or beginning of 1829 ; in 1831 she had another child, that died in the month; her daughter Phillis was born about the year 1833; Leah inthe summer of 1837; and Sue’s daughter, Molly, had a child, Abram, born on the 30th of October, 1844. These negroes, with the exception of Sue, who died, were delivered by the defendant to the complainants, before the bill in this case was filed. The woman Sue, and her children, as they grew up,were employed generally about the farm.</p> <p>There was no evidence of what the defendant actually made by their services, such as accounts of proceeds of crops; nor sufficient evidence on which to base a calculation of what he made, by comparing the amount of property he had when he took them in charge, and that which he had when he delivered them to complainants. Nor does it appear that there were any lands of complainant on which these slaves could be employed in making crops.</p> <p>It appears that the defendant treated these negroes as if they were his own property ; that he was a prudent and humane master, and attended well to his business.</p> <p>It appears further, that it is the custom, in the defendant’s neighborhood, of persons who have the management of estates consisting of negroes only, to hire them out (near to defendant’s residence) to the highest bidder; or, if no offer be made for their services on account of the condition of the ne-groes themselves, then, to him who will maintain them at the lowest rate — the owners paying taxes and doctor’s bills.</p> <p>If this plan were adopted, as the rule by which to charge in this case, it would appear from the testimony of Daniel Ut-sey, Dr. William Murray, William Warner, and Rhode, that the defendant would not owe any thing to the complainants for the services of the negroes in question.</p> <p>Another class of witnesses, Jacob Whetsell, David Apple-by, Alfred Appleby, and Dr. M. T. Appleby, who lived in the neighborhood, and knew the negroes, but most of whom were neither in the habit of hiring out, or paying hire for negroes themselves, gave their opinions as to what the services of the negroes is worth; The result of'a calculation based on this testimony would be,</p> <p>For Sue’s wages, 11 years at $54, - - $594</p> <p>Molly “ per schedule, - - 131J</p> <p>Sam “ do. - - 44</p> <p>- $7694</p> <p>From which take estimate of taxes, - - $60 07 food for small negroes, - 360 75 clothing of do. - 74 00</p> <p>Dr. Carr’s medical attendance, as estimated by Dr. Murray, - - 360 00 - §854|</p> <p>Would leave due defendant §85</p> <p>But should it be considered that Dr, Carr, acting in this case as a trustee, is not entitled to any thing for his personal services, — then after deducting the §360 above allowed, a balance of two hundred and seventy-five dollars would be found due the complainants.</p> <p>Evidence was given as to the amount expended for clothing and educating the defendant, Mrs. Pye; but, as the Commissioner considers the evidence of Dr. Carr’s ability, being sufficient to shew that he could support and educate his daughter without resorting to the income of the slave in question for that purpose, he does not think it necessary tq report the amount.</p> <p>AU of which is respectfully submitted,</p> <p>A. CAMPBELL, Corner, in Equity. February 16th, 1847.</p> <p>The complainants excepted to the Commissioner’s report on the following grounds :</p> <p>1st. Because the Commissioner has taken the lowest estimate for the hire of the negroes, or the testimony of a single tviiness agaipst the unimpeaohed evidence of three witnesses,</p> <p>2d. Because the Commissioner should have allowed the coipplainants interest on the hire of the negroes frond the end of each year until they were surrendered, !</p> <p>3d, Because the Commissioner has allowed the defendant the sum of §360 for medical services, said to have been rendered by him to the negroes while in his possession, though there was no evidence that the negroes required his services, or that .he rendered any to them if they did.</p> <p>4th, Because the Commissioner has charged for the expense of feeding and clothing the negroes, Sam and Phillis, until they were ten years of age, and has refused to allow the complainants any thing for their hire, until the one was 12, and the other 13 years of age.</p> <p>5th. Because the sum of §9 per annum allowed by the Commissioner for feeding the young negroes, is extravagant and not founded upon testimony taken on the reference, February 16th, 1847.</p> <p>Upon the exceptions to the Commissioner’s report, his Hon- or, Chancellor Dunkin', decreed as follows :</p> <p>Dunkin, Ch. The complainant, Mrs. Pye, is the daughter pf the defendant, In November, 1825, when she was an ip-fant, about eight months old, a negro woman, by name Sue, was given to her. She was between thirty and thirty-five years of age. She died in the summer of 1838, having, in the interval, given birth to five children, all of whom, except one who died soon after its birth, were raised by the defendant, and together with another infant, the child of Sue’s eldest daughter, were delivered over to the complainants some time after their marriage, which took place in November, 1844; this bill was filed for the delivery of Sue, with her issue, to the complaiuants, and for an account of the hire. It was proved that Sue was dead, and it was admitted that before the bill was filed, all her issue, consisting of five negroes, had been delivered to complainants.</p> <p>In February, 1846, a reference of inquiry was directed to the Commissioner, reserving all the equities of the parties.— Among other things, the Commissioner was directed to inquire (f what was the value of the hire of the negroes, and for how much of it the defendant ought to be made responsibleand also, “ how much was expended for the support and rearing of the young negroes, the issue of the negro Sue,” (fee. A very minute and satisfactory statement has been submitted by the Commissioner, as the result of his investigation. Several exceptions were filed on the part of complaiuants, which it may not, perhaps, be necessary to consider in detail. The general inquiry is, whether the defendant has or has not discharged his duty; and, if not, to what extent, and in what manner should he be held responsible?</p> <p>As has been elsewhere said, every case of this character, must, from necessity, depend on its own circumstances, — - The defendant was a physician, practising in St. George’s, Dorchester. When this negro woman was given to his daughter, what was his duty ? On the part of the complainants, it was insisted in the argument that it was his duty to have hired her- out, each year, to the highest bidder, and not having done so, he must account for the hire, with annual interest. What would have been the result in Nov. 1844, if this course had been adopted, must necessarily be a matter of speculation. The Court gathers from the testimony that Sue was the gift of Mrs. Pye’s grandmother; without some special direction to that effect, it could hardly be supposed that the donor intended this course to be adopted. In the absence of testimony it would rather be presumed, that it was left to the discretion of the father, to pursue such plan as might be deemed most for the interest of his child. Has the result approved the judicious exercise of this discretion? In November, 1825, Dr. Carr received one negro woman, who died in 1838. In 1844 he delivered to his daughter five negroes, one of whom had just given birth to her first child. According to the testimony, Dr. Carr “ is a prudent and humane master, and (hese negroes were treated as if they were his own property.” The Commissioner adds, “ it appears further, that it is the custom, in the defendant’s neighborhood, of persons who have the management of estates consisting of negroes only, to hire them out (near the defendant’s residence) to the highest bidder; or, if no offer be made for their services, on account of the condition of the negroes themselves, then to him who will maintain them at the lowest rate, the owner paying taxes and doctor’s bills.”</p> <p>This seems to come up to the serverest rule of duty on which the complainants insisted. “ If this plan were adopted (proceeds the report) as the rule, by which to charge in this case, it would appear, from the testimony of Daniel Ut-sey, Dr. William Murray, Wm. Warner and-Rhode, that the defendant would not owe any thing to the complainants for the services of the negroes in question.” It is true, that another class of witnesses thought their services worth more ; but, says the Commissioner, “ most of these witnesses were neither in the habit of hiring out or paying hire for negroes themselves.” On examination of the evidence, the conclusions of the Commissioner seem well warranted; many circumstances must be taken into consideration; something depends on the custom of the country ; it seems it is the habit in St. George’s to treat with much indulgence a woman like Sue, giving birth to a child every two years. The witness, Wm. Warner, who was trustee for an estate, consisting of negroes; said, that for a woman having five children, he had, in a succession of 5 or 6 years, paid from $ 18 to $40 per an-num, besides their services, for their rearing, &c.; that he paid doctor’s bills and taxes, and furnished blankets every two years. Dr. Wm. Murray said he had paid thirty-six dollars per year for the support of a negro woman and three children, and this at public outcry to the lowest bidder; other witnesses of respectability and experience who lived in the vicinity, concurred with these witnesses, that taking the series of years together, the defendant .ought not to pay any thing for hire. In addition to his character for prudence and humanity, the defendant was a physician in excellent repute. The Court is of opinion that the interest of his child was best promoted by the course which he adopted, arid that his stewardship was faithfully and fully discharged, when he delivered over the five negroes, after the marriage of his daughter.</p> <p>The bill must be dismissed ; each party to pay his own costs.</p> <p>Complainants appealed on the following grounds :</p> <p>1st. Because the Chancellor sustained the report of the Commissioner, who took the lowest estimate for the hire of the negroes, on the testimony of a single witness, against the unimpeached evidence of three witnesses.</p> <p>2d. Because the Chancellor sustained the report of the Commissioner, allowing the defendant the sum of three hundred and sixty dollars for medical services, said to have been rendered by him to the negroes, while in his possession, although there was no evidence that the negroes required his services, or that he rendered any to them if they did.</p> <p>3d. Because his Honor erred in deciding that defendant was not liable for the hire of the slaves of complainant; whereas complainants submit, that he was not only liable for hire, but also for interest on the hire from the end of each year.</p> <p>4th. Because his Honor, in making up his decree, has relied on the testimony of Wm. Warner, Dr. Wm. Murray and other witnesses (who stated that they did not know the ne-groes) against the testimony of Jacob Whetsell, Dr. Apple-by, Alfred Appleby and others, who knew the negroes, and testified from their knowledge of the same.</p> <p>5th. Because his Honor has overruled the decree of Chancellor JohNstoN, which sustained the bill and ordered a reference.</p> <p>6th. Because the decree of his Honor is, in other respects, contrary to law, equity and the evidence.</p>

<p>Testator, by his will, left to his wife a life estate in his whole property, with power to dispose of one-half at her death; and she died without having made any appointment under the power; held, that at her death, the whole property, as intestate, became distributable, one moiety to the next of kin of the testator, and the other moiety to the next of kin of the wife.</p> <p>Where there is a gift to one for life, with a general power of appointment, the power of appointment does not enlarge the life estate into an absolute interest, and nothing passes under the clause conferring the power, unless it be exercised. The title acquired from an Administrator at a sale ordered by the Ordinary, is a good title, which a co-distributee of the intestate is as much at liberty to purchase and to depend on as any other person.</p> <p>4 Kent 353 Sect. 53. ’</p> <p>Croft us. Stu. 4 Yes. 66.</p> <p>Barford v. Street, Irwm’v. Par-rer, 19 Vesey. 86-Vesey, 451.</p>

<p>On appeal from the decree of the Circuit Court, refusing partition of standing timber, the Court reversed the decree, and ordered a writ of partition, without regard to the character of the estate of either party, or the difficulty of executing the commission.</p> <p>In South Carolina, interests may be severed and the share of each ascertained and setoff, where the subject matter is not susceptible of division. Whether the mode be just or practicable is a matter for the commissioners; and if in their judgment no division can be made without manifest injustice, they are at liberty to recommend a sale for the purpose, and the Court will judge of the propriety of confirming such return.</p> <p>uiner^N.^ McC. 429.</p> <p>l Rich. Eq. 87,</p> <p>Amb. 589.</p> <p>Amb. 236.</p> <p>17 Yes. 344,</p> <p>8 Ves. 143.</p>

<p>Lands conveyed by a father to his eldest sons, not to advance them, but declared by him to be, as in fact they were, in remuneration for their faithful and valuable services to him, were held not to be advancements, in the sense in which the statute uses the word.</p> <p>Though a parent is entitled to the services of his children, while under age, he may waive his right and make those services the consideration of a contract or promise, and he may give property Iona fide, in the performance of such obligation of justice, without its being subject to a claim on the part of the other children to consider it in the light of an advaneement.</p> <p>After distributees have had a settlement with the administrator, they have no right to open that settlement, except upon the allegation and proof of fraud, misrepresentation, concealment, or mistake of facts. And the bill should state the specific ground upon which it is sought that the account should be opened and relief be given, in order that the defendant may meet the case made in the bill fairly.</p> <p>B otefaur v. Rliame, 1 McCord Ch. Rep. 161: RadcliiTe v. 'Wighlman, lb. 452. Porter v. Cain, McMullan’s Eq. Rep 1 Story’s Eq. Sec. 138. Stockley v. Stockley, 1 Yesey and Beams, 29.</p>

Before Harper, Ch. at Newberry, July Sittings, 1847. This was a bill to marshall assets and for relief.

Before Johnson, Ch. at Fairfield, June Fittings, 1846. On appeal from a decree of the Circuit Court, dismissing a bill filed for that purpose, the Court of Appeals, in 1841, held that the property hereinafter referred to was purchased by William Lewis, the defendant’s testator, on the agreement that it was for the benefit of the family of J. R. Pickett, and according to a decretal order of the Court, made in the case, all matters of account between the parties were referred…

Before Harper, Ch. at Columbia, July Sittings, 1847. It appears in this case that John C. Singleton, the complainant, on the 22nd day of January, 1836, purchased from William M. Myers his plantation and negioes on the Conga-ree River, for $75,000, and gave his bond conditioned for the payment of that sum, with interest thereon annually, on or before the 22nd day of January A. D. 1846.

Before Dunkin, Ch. at Edgefield, September Sittings, 1846. The appeal in this case is from both the decree of his Hon- or Chancellor Dunkin, who first heard the case and made an order of reference to the Commissioner, and from that of his Honor Chancellor Johnston, upon the exceptions taken to the report made under this order. The first decree very fully sets forth the facts of the case, and is as follows. - Dunkin, Ch. Gideon H. Hull died at Hamburg in October, 1840.

Before Dargan, Oh. at Barnwell, February Sittings, 1848. Dargan, Ch. The following facts weie proved or admitted in this cause: Letters of administration, with the will annexed, of the estate of Elijah Gillett, were committed to the defendant, J. jS.

<p>Testator bequeathed to his wife a life estate in certain slaves, with remainder over to his son, on condition that, at certain periods specified in the will, he should emancipate, or send them into a free Slate — held, that the emancipation, or removal, was a condition subsequent.</p> <p>An executor’s assent to the legaey to a tenant for life, ipso facto enures to vest the estate in remainder.</p> <p>The Act of 1841, rendering void any bequest, &e. of slaves to be removed without the State, with a view to their emancipation — held not to destroy the legal title of a legatee, vested in slaves previous to its passage; but only to render void the condition of the bequest, that he should remove them into a free State at a period subsequent to its passage.</p> <p>Whenever the testator has not expressed his intenlion in favor of the legatee, it must be presumed to have been reserved for the benefit of the next of kin.</p> <p>3 paust 7g ’</p> <p>Acts ofi84i,-P-1&i</p> <p>1 Rich. Eq. 61; 2 Ibid. 43.</p> <p>1 Com. 454, part 3, sec. 20.</p> <p>7 Johns, a. 477.</p> <p>Ves-</p> <p>Williams on Ex’rs. Coke’s, Rep. Lampet’s pase.</p> <p>ii Stit of So, Ca. 155.</p> <p>1 Bail. R. 632.</p> <p>11 Stat. ofS. C. 1 Rich. E. R. 61.</p> <p>Hill on Trustees, 119,</p> <p>Staki Wm! C. 40. ’ li Stat. of s. C. 155.</p> <p>i Ves-, and Beams, 260..</p> <p>Same rule ap-so^al^'ro^ert” Southouse J. Bate, 2V. and Miilfefv Bowman^ l Coli. N. 197-</p>

Before Johnston, Ch. at Edgefield, June Sittings, 1847. ABSTRACT PROM BILL.

<p>When a bill is properly filed for the delivery of slaves, and the plaintiff establishes his right of property, the Court will decree compensation for such of tile slaves as may have died pending (he suit.</p> <p>2'Rich. Eq. 79.</p> <p>See 2 Rich e<g, 791C '</p> <p>2Hill Ch 528 1 '</p> <p>Hinson'& wife Pickett MSS. G.</p>

<p>The Court of Equity has no power either to malee or confirm a sale of a manied woman’s separate estate, which by the deed creating it, is expressly prohibited from being sold.</p> <p>The Court will not sustain a sale of her separate property, made by a feme covert, although not restricted by the deed, unless it be her voluntary act, andfor such necessary purposes as the Court, after her examination, would have ordered it to be made.</p> <p>A married woman, unless expressly authorized by the deed of settlement, can neither charge nor dispose of her separate estate; and when authorized, the mode prescribed must be strictly pursued.</p> <p>i Ves. J. 48.</p> <p>l Ves. J. 193.</p> <p>2Meriv. 482.</p> <p>7 R'5 -</p> <p>3 J. C. U. 113.</p> <p>3 Eq. Rep, 4X7, 46a</p>

<p>"Whore the plaintiffhad taken a Sheriff’s deed, with an imperfect description of the land conveyed thereby, and, in an action of trespass to try titles, had it in his power to supply that defect, and failed to avail himself of it, a litigation of the same matter in this Court was not allowed.</p> <p>If it was perfectly competent for the plaintiff to have established at law, all that he can prove here, and he omitted or neglected to adduce the testimony necessary, it furnishes no ground for the interference of this Court.</p> <p>2 R543 R’</p> <p>Wilifs™.</p> <p>2Rich. K. 373-</p>

Before Dargan, Ch. at Barnwell, February Sittings, 1848. Held: that if there had been fraud or mistake in stating the accounts, it was incumbent on the complainant to have set out in his bill the fraud or mistake, that the defendant might have come prepared to answer it- The Court even refused to allow the complainant to amend his bill by setting out the fraud or mis-tafee, as the bill was…

<p>The general rule in this Court, as to parties, is that all persons interested in the subject matter of the litigation, should be made parties, either complainant or defendant.</p> <p>The proper way to take advantage of the want of proper parties to a bill, is by demurrer, if the omission appears on the face of the pleadings, and by a plea, if it does not so appear.</p> <p>It is the duty of the defendant, who objects to the complainant’s bill for the want of proper parties, to inform him, by pleading, who are the proper parties; or in law phrase, “ to give him a better writ.” But this rule is within the discretion of the Court. And when it is perceived that the parties, who are directly interested, are not before the Court; that they will not be bound by its decrees, but be entitled to another hearing in a suit to be instituted by them: when it also appears that the persons omitted are the only real parties in interest, and that they are infants, and on that account more especially entitled to the protection of the Court, it will pause and suspend its judgment until proper parties are before it.</p> <p>Dent v. Ben-^ond.- ’ ‘ eps'’</p> <p>. . .. ~ q^charicsh ton, Jan. i84s" Rutherford v. 43^es-</p> <p>16 Yes. 325.</p>

<p>Multifariousness is a good ground of demurrer to a bill in Equity; but if the defendant, at the heaving, waive the objection of multifariousness to any part of the bill, the demurrer as to that part will be overruled.</p> <p>The custom is to allow executors, or administrators, reasonable charges for the hire of auctioneers and clerks of their sales, as expenditures for the benefit of estates.</p> <p>Testatrix, in general terms, gave and bequeathed aU her property, tf-c., and the will contained no indication of an intention on her part, to detract from its ambulatory capacity — held that all the personal property, of which she died possessed, passed under the will, although a part of it only had been specified therein.</p> <p>The general rule is that testaments take effect, or, as it is sometimes expressed, speak, at the death of the testator, and are to be applied to his personal estate as it exists at that time. And this should be the construction in all doubtful cases.</p> <p>Where it can be pronounced, with confidence, that the testator meant to announce an intention confined to the state of affairs existing at the date of his will, either in reference to the specific subjects which he wished to pass under , it, or the persons to enjoy them, or truly intended in any other way to abridge the ambulatory capacity of the instrument, the construction must be such as to conform to the special intention thus indicated or expressed.</p> <p>Vide l Strob. Eq. 96.</p> <p>A. A. 1789.</p> <p>Thuríng v. Winthrop, ex-charieston 1847. ’</p> <p>¡1 Strob. .E/96, ’</p> <p>:Id. 98.</p> <p>Id -93.</p> <p>3 jvtcC. R1492.-4 Id. 4-1-.</p> <p>j jarman on wills, Ch. i.</p>

<p>"Where unfair means have not been employed to prevent competition at Sheriff’s sales, inadequacy of price, however great, is no ground for setting them aside.</p> <p>2 Bos. & Pull, 59.</p> <p>2 Rich. Eq. 374.</p> <p>2 Com. 469.</p> <p>Rice. Eq. 3.</p>

<p>St was the duty of the Ordinary, under the Act of 1789, to grant only such relief to a petitioning surety of an administrator, as would not impair or affect the ■rights of the parties interested in the estate.</p> <p>The proper manner for the Ordinary to give relief to a petitioning surety, is to taire a new bond with additional sureties, or to revoke the administration.</p> <p>A guardian, or other person standing in place of a guardian, may furnish a minor, from the income of his estate, such articles as are proper for his condition in life. And there is no such inflexible rule as that a riding horse may not be regarded as necessary for a minor.</p> <p>■On a settlement with the Ordinary by an executor or administrator, it ought to appear on the face of the settlement what was the nature of the evidence on which the return was accepted and allowed-; -and although the evidence with the Ordinary is not per se conclusive in favour of the executor or administrator, it ought to be received for as much as it is worth; and the value must depend on a variety of circumstances ; the regularity of the accounts, the death of -witnesses, loss of vouchers, and the lapse of time, must all be taken into consideration. Yide 2 McC. C. R. 197.</p> <p>5 Stat ill sec.’ 24. ’</p> <p>jk 43, sec.</p> <p>Hill v. Calvert 1 Rich. Eq 55.</p> <p>2 McC L R 291. ’</p> <p>2 Hill L. R, 21g.</p> <p>c R ^ '</p> <p>SN&MeC. R. 524.</p>

<p>The books of an agent, kept by himself, or those acting under him, are not, in general, evidence for him of the disbursement of money on account of his principal: he should prove his disbursements by strictly legal evidence. — Vide Bail. Eq. 226.</p> <p>An agent, accounting in' Chancery, may discharge himself, by his affidavit, without voucher, when the amount of the item is under forty shillings. Where an agent is continued from year to year, and finally withdraws voluntarily from his office, he is entitled to the compensation agreed upon for Ms services, and liable only for specific loss by his misconductor neglect, which must both be alleged and proved.</p> <p>Although the general agent of a company is not responsible for the bad debts, or for the negligence or faithlessness of agents whom he has necessarily employed, yetit is his duty to see that the debts due to the company are collected, and he must show that he exercised ordinary diligence for that purpose.</p> <p>An agent is not responsible for a contract made with an infant, known to and acquiesced in by the principal; especially where the contract was conditional, and no actual loss resulted from it.</p> <p>2 Cases in Ch. 249, 1678. n,--i fb.28¿ 2Atk. 410. 2 ^^Ch. 2 story’s’ Eq. J- 743. Joh^C. R.</p> <p>Bail. Eq. R. 226.</p> <p>2 H511 c R ’</p> <p>Cheves’ Eq/R. 189-</p>

<p>It is an established principle, that the husband or wife should be excluded from giving evidence in a case where either the legal or equitable interest of the • other is involved in the issue.</p> <p>March 5.1832.</p> <p>prince,s Dig . 162.</p> <p>Ib. 215, sec. 3.</p> <p>4 Stat. of S. Oa. 656.</p> <p>Price’s Dig. 15».</p> <p>onEv. 77, 81. 1 Bur. 428.</p> <p>10 Pick. 261,</p> <p>4 Term, 678.</p> <p>Hopkins v. Smith, J. J. Marshall Rep. 263.</p> <p>5 Russ. 19.</p> <p>Bland v. Sur- ^ násier" 1 Ry. & M. -^il. ¿roTe'^ T¡_ rellton; Áve-nallJ92." '</p>

<p>The Court of Equity is one of general jurisdiction, but the right of a defendant to have the case tried in the district in which he resides, is reserved under the provisions of the Acts of 1791 and 1793.</p> <p>On a question of fact, the circuit decree will be sustained, unless the Chancellor was mistaken.</p> <p>7 gtat. 163. 4 — 5.</p> <p>1 Stat. 128, 142. 7 Stat. 209. sec. 8.</p> <p>Id. sec. 11.</p> <p>1 Stat. 189, Art. 3a.</p> <p>7Btati 258-</p> <p>Id. 283 sec. 5.</p>

<p>Testator begins his will by expressing a desire “to dispose of all his worldly estate,” &c., then the clause materially affecting the question, is as follows: — ■ “ I give to my wife, Nancy T. Moon, the tract of land whereon I now live, containing two hundred acres, more or less; also two negroes, (to wit: my man Stephen and my girl Harriet,) during her natural life or widowhood,” remainder over, fyc. — held that these subjects were disjoined, and that the general devise of the, land carried the fee.</p> <p>Tenant for life, who removes the property from the State, may be arrested under a writ of ne exeat, and compelled to give security not to depart the State, but abide the judgment of the Court, &c.</p> <p>Tenant for life, who has sent slaves of the life estate beyond the limits of the State, should be required to give bond and good security to the Commissioner for the delivery of the slaves and their increase to the remainderman, at the expiration of the life estate.</p> <p>Coretes t. Ar-drain et al. 1 Hill. C. R. 157.</p> <p>Ib. 373. Bentley etal. v. Long et al. 1 Stuart, arts.</p> <p>E. R. 43. Smith y. Poy-as, 2 Des. E. R. 65.</p>

Before Caldwell, Ch. at Marion, Febuary Sittings, 1848. Caldwell, Ch. This was an original and amended bill, filed by the plaintiffs against A. G. Davis and Daniel H. Davis, the surviving executors of Joseph Davis Sr., and against the administrators and heirs of Benj.

Before Caldwell, Ch. at-Chester, July Sittings, 1847. Held: that the deed could not take eífect; that the donor could not, by deed, carve out a life estate for himself, and limit over the remainder in the slaves to others, and that the deed of gift passed no property to the donees, as possession did not accompany and follow it: and notwithstanding the decisions in the executors of Stevens v.…

sitting for Marion, June, 1847, overruling the exception taken to the following report of the Master: The Report of Edward R. Laurens, Master in Equity.

<p>2 Black. Com. 441.</p> <p>Kent. Com.</p> <p>Yes. Sr.431,</p> <p>Rice L. Rep. 310-</p> <p>Black. Com. 338,4 Cruise g^feí-s on '“w. & T.</p> <p>(ford’s L. R. 198, 2 Hill’s L- R-548Porter Ia' gram, 4 Me-</p> <p>l Bail. L. Rep. too.</p> <p>3Brevar(j.g Reports, 411.</p> <p>Ba-L Riley’s L.PC.</p> <p>3 gill’s Rep. 443. -yVelch v. Ki-nard.</p> <p>MSS. Cas.es D.</p> <p>Rice’s E. R. 343‘</p> <p>1826. MSS. Gases.</p> <p>Fowler v. Caldwell v.’ Wilson, 2 sPeers’ R-75.</p> <p>2 Kellv Rep 31. p'</p>

<p>8 Term Rep. c7-</p> <p>20. Wend. R. 576.</p> <p>Stat¿307fS'</p> <p>Atkin’s 437.</p> <p>Br. Pari. C. t°8-</p>