Volume 22 — South Carolina Equity Reports

<p>When a father, on the marriage of a son, delivers to him a slave, or permits the slave to go home with him, or sends the slave to him, it is prima fade evidence of a gift; but the presumption may be rebutted by proof of the circumstances under which the parent gave possession to the child: and for this purpose the declarations of the parent when the delivery was made, are admissible to ascertain whether a gift or loan was intended; provided, these declarations were made to the child m person, or to another who communicated them to the child in a reasonably short period afterwards.</p> <p>A son-in-law is a competent witness to prove that slaves delivered to him on his marriage, by the parent of his wife, were intended as a loan and not as a gift; but when his testimony is presented under suspicious circumstances, it will not of itself be sufficient to overthrow the claims of his creditors to the slaves.</p> <p>The resumption by a parent of slaves which she had delivered to her son-in-law on his marriage, and her undisputed assertion of ownership, and continued possession of them for four years, are sufficient to invalidate the claims of those seeking to subject them to the payment of debts contracted by the son-in law subsequent to the resumption. Such resumption is sufficient to rebut the presumption of a gift.</p> <p>Where one executed a bill of sale of slaves to a connection who was in embarrassed circumstances, but a few days before judgments, which would have subjected them, were entered up against him; and where the circumstances of the transaction were generally of a suspicious character; the Court held that the evidence of the vendor was not sufficient to rebut the presumption that the sale was intended as a fraud upon his creditors.</p> <p>Complainant preferred before the Courtafraudulent'title, from her insolvent son-in-law, to a slave who was properly and legally in the hands of the sheriff for sale, and obtained an injunction against the sale. During the time the sheriff was restrained by the writ of injunction, the slave died. The Court ordered that the complainant should account to the execution creditors ofher son-in-law for the value of the slave at the time of her death, and the interest thereon from date.</p> <p>x N_ & McC_ 221.</p> <p>4 McC. R. 251.</p> <p>McMul. Eq. 115-</p> <p>in.&McC. 224-</p> <p>1 Rich. Eq. 310'</p> <p>Strob. Eq. R. 227.</p> <p>1 N. & McC. 223.</p> <p>MSS. Ca.. Col. May, 1849.</p> <p>2 Rich. L. Rep. 106.</p> <p>1st. Phill.Ev. 231, Note 444, p. 585, vide Cases cited in margin,</p> <p>1 Starkie on Ev x302,268.</p> <p>l Green, Ev. sec-108‘</p>

<p>As a general rule, the purchaser ofland would not he coerced by a decree of this Court, to perform his contract, without an investigation as to the title. But cases not unfrequently occur, in which the vendee will be considered as having waived his objections to the title, and will be decreed to perform and to accept such title as the vendor is able to give.</p> <p>Where complainant’s devisor sold the land to defendant in 1841; and the defendant, the same year, went into possession, and retained possession until 1846, clearing and cultivating the land; and the land, in 1842, had been surveyed in the presence of defendant’s agent, who made no objection either as to quantity, location or title; and in 1844, defendant had written to complainant excusing liimselffor not having paid the purchase money, and expressing a strong desire to do so at an early day; and where no objection had ever been made to the title until after filing the bill — the Court held that, by his conduct, the defendant had waived his right to object to the title; or that to talco the most favorable view of the case possible as to him, the onus had fallen on him to show that the complainant had no title.</p> <p>Where one entered into the possession ofland under a'contract to purchase, and had failed to comply with tire terms of the contract, notice by the vendor that until he did comply, he must suspend all further use of the land, is not a rescisión of the contract, but rather a demand for its fulfilment: neither does it debar the vendor of his right to interest on the purchase money from the time of the notice untilits final payment.</p> <p>Where there was no original necessity for an order of reference, as to a title, to have been made, the order is merely administrative, and as such is liable to be recalled by the Chancellor who made it, or by any succeeding Chancellor.</p> <p>Sugd. 217.</p> <p>2 Swanst. 168. 15 Ves. 594. 2 Rich. Eq. 1 Madd. R. 316.</p>

<p>Testator, after directing; that liis just debts should be paid, made specific bequests of all his personal property; subsequent to the execution of the will, he entered into an agreement for the purchase of land, took possession and died before the purchase money became due — held, that if the agreement should be carried into specific execution, the land must be applied to the payment of the purchase money, before resort could be had to property specifically bequeathed.</p> <p>In South Carolina, the whole estate is charged with the payment of debts, but a testator has the right to prescribe a law for the disposition of his estate, which is obligatory upon all claiming as volunteers; and the inquiry always is, has the testator expressed an intention to have his assets marshalled in a different manner from that prescribed by law 1</p> <p>In the absence of any special direction by the testator, certain rules have been adopted in the marshalling of assets; one of which is, that descended real estate shall be applied to the payment of debts, before a resort is had to personalty specifically bequeathed.</p> <p>Sugd. Vend. c. 451-</p> <p>ibid,</p> <p>Ib¡(J</p> <p>10 Yes. 597.</p> <p>Speers Eq. 48.</p> <p>8 Yes. 396.</p> <p>Bail. Eq. R. 397.</p> <p>lRo 184. 6£’</p> <p>2 Rich. Eq. 218.</p>

<p>The general rule Is that a guardian shall not exceed the annual income of his ward’s estate in expenditures.</p> <p>When the charges in the accounts of a guardian exceed the annual income of his ward’s estate, lie must make out, cd, least, as clear a case before the Court for the subsequent sanction of his expenditures, as he would have been required to do on an application for its authority to malte them.</p> <p>Villard v.Chovin 2 Strob. Eq. 40; Prince & wife v. Logan, Spear’s Eq. 29; Boggs et al. 327.</p>

<p>Jaggers v. Estes.</p> <p>Motions for the continuance of a cause are addressed entirely to the discretion of the presiding Chancellor.</p> <p>Granting an issue at law, except in cases where practice has made it a matter of right, is a discretionary act; but a mistake in the exercise of that discretion is a just ground of appeal.</p> <p>2 Strob. Eq. 343.</p> <p>1 McMul. Eq 255.</p> <p>2 Daniel Ch. Pr. 1285.</p> <p>3 Ves.& Bes. 41.</p> <p>Misreported in State Equity Rep. p.62</p> <p>3 Ves. & Beames.</p>

Before Johnston, Ch. at York, June, 1848. Johnston, Ch. — This was a bill to reform a division which had been made of the estate of Robert Harris, the intestate of the defendants McKee and James M. Harris. The intestate died on the 27th September, 1841, leaving several children, &c. surviving him.

Before Johnston, Ch. at Chester, July, 1848. Johnston, Ch. It is seldom that we meet with a case of greater apparent hardship that this; or one in which, if there be no remedy, the results of the law appear to be more at variance with the dictates of natural justice, It sometimes does happen that the equity of a specific case conflicts with the rules of law.

Before Johnston, Oh. at Columbia, June, 1849. The facts of this case will be sufficiently understood from the following decree of Chancellor Dunkin, pronounced at Columbia, June sittings, 1848.

<p>The surety is not discharged by the omission of the creditor to record the mortgage of the principal debtor, which was executed for the purpose of securing tire payment of the debt.</p> <p>If the creditor do a% ad injurious to the surety, or omit to do an act, when required, which equity and his duty to the surety enjoin it upon him to do, and which omission is injurious to the surety — in either case, the surety will be discharged.</p> <p>1McC. Ch. R. 107.</p> <p>1 McC. Ch. R. —</p> <p>17 Johns. Ch. R. 384.</p> <p>13 Johns. Ch. R. 154.</p> <p>2 Bro. 578. 17 Johns. 384.</p>

<p>Before DuNkin, Ch. at Lexington, June, 1848.</p> <p>The following circuit decree contains all the facts of the case:</p> <p>Dunkin', Ch. — The lapse of time has combined with the tortuous conduct of some of the parties to involve the facts of this case in some obscurity. It seems, however, that prior to 1813, the ancestor’s or original stock of the slaves in dispute, were the property of “ old Mr. Hoof,” (as the witness called him,) the father of the defendant, James D. Hoof, Sr. and the grandfather of the complainants. This person died intestate, and William Geiger, (the witness,) together with the widow, administered on his estate. The only distributees were the ' widow and her son, the defendant, J. D. Hoof, Sr. then about 12 or 14 years of age. The negroes went or remained in the possession of the widow. Sometime after the death of the intestate, she intermarried with Thomas Jackson. This event probably took place in January, 1813. In April, of the same year, the defendant, J. D. Hoof, Sr. married his present wife, who was the daughter of Thomas Jackson — he tvas, then, very young, probably about 17 years of age. He and his wife lived with their parents for three or four years after his marriage: they then removed to Edgefield, taking the negroes with them, where they remained long enough to make one crop. Hoof became involved in a law suit, sold Mary, one of the slaves, and they then returned back-:— Thomas Jackson went to Edgefield and arranged the difficulty in which Hoof had been involved, and on his return, the deed on which these proceedings are founded, was executed. The deed is in the following words, to wit:</p> <p>“ To all people to whom these present writings shall come, be seen or made known, greeting : Know ye, that I, Thomas Jackson, of the State and district aforesaid, in consideration of the very great love and affection that I bear my son-in-law, James D. Hoof, and daughter, Ann Hoof, of the State and district aforesaid, and for other good causes and considerations me thereunto moving, have given, granted and confirmed unto the joint heirs of said James D. Hoof, and Ann Hoof, his wife, the following negroes, viz: Nose, Milly and Jack, to have and to hold the said three negroes, Rose, Milly and Jack, with all the issue of the said Rose and Milly, which they may hereafter have, to the joint heirs of the said James D. Hoof, and Ann, (his wife.) I, the said Thomas Jackson, for myself, my heirs, executors and administrators, do warrant and forever defend the said three negroes unto the joint heirs of the said James D. Hoof, and Ann, his wife, and to their heirs shall and will warrant and forever defend, by these presents. In witness whereof, 1, the said Thomas Jackson, have hereunto set my hand and seal, this twenty-third day of October, in the year of our Lord one thousand eight hundred and seventeen, and in the forty-second year of American Independence.</p> <p>(Signed) Thomas Jackson, [l. s.]</p> <p>Signed, sealed, and delivered in the presence oí Laban Williams, William Paulding, J. Q.”</p> <p>The deed was recorded in Orangebürg district, where all the parties resided. James D. Hoof was not present when the deed was executed, and so far as the subscribing witness could testify, he had no knowlege of its existence. The negro Jack, mentioned in the deed, was originally the property of Jackson, but had been purchased from him by James D. Hoof, Sr. his son-in-law. William Geiger, apparently a highly respectable witness, testified that he had heard Jackson say he had got Jimmy’s (James D. Hoof) property settled to him and his wife for their lives. Mrs-. Jackson and witness’s mother were sisters, and on the first visit after this deed was executed, Jackson told him he got Jimmy’s property so fixed that he and his wife could have the use of it without being liable for his debts, and afterwards to their children.</p> <p>James D. Hoof, Sr. says in his answer, that when the deed was executed, Rose, Milly and Jack were his own property; that his mother, prior to her marriage with Jackson, conveyed these negroes to him by deed. In this there is one mistake. At the date of the deed his mother was the wife of Thomas Jackson, and the donor is styled Sarah Jackson.</p> <p>But Hoof says that, when he married in 1813, he was very young, and became improvident; and that within four years afterwards he found it convenient to consent, and did consent, that his step-father, Thomas Jackson, should make a bill of sale of the slaves, Rose, Milly and Jack, by which bill of sale he would secure to the defendant and his wife, Ann, the joint use of the said slaves for life, and with a limitation to their children upon their death. That Thomas Jackson agreed to execute such instrument, and he understood from him that he had done so; that Jackson paid him no consideration for the slaves, and he expressly agreed that the deed should secure to him and his wife a joint interest in and use of the said slaves during their lives, with remainder to their children.</p> <p>J. D. Hoof, Sr. has been always in possession of the ne-groes, until about the time of instituting these proceedings : he has been always embarrassed. In August, 1828, he applied for the benefit of the Prison Bounds Act, swearing that he had no property, real or personal, and was discharged by the plaintiff. Again, in October, 1824, he was arrested in a different suit, made substantially a similar affidavit, and was discharged by the Commissioner of special bail. He has held out to others, as appears from the testimony, that these negroes were the property of his children, and not his own. It is difficult to say that there is any evidence of any claim to the contrary, on the part of James D. Hoof, Sr. until having successfully baffled his creditors, for a series of years, it became necessary to contest the importunate demands of his children. This controversy is between him and his children, — some of the children insisted on having a portion of( the negroes, and Hoof thereupon, for reasons stated in his answer, sold them for $3600, and he has been required to give security for their forthcoming, to abide the decree.</p> <p>The Court rather concludes from the testimony, (and J. D. Hoof, Sr. is not at liberty to controvert the inference,) that prior to the execution of the deed of October, 1817, the ne-groes mentioned in that deed were the property of James D. Hoof, Sr. If the deed of Jackson had given a life estate to James D. Hoof, with remainder to the joint heirs of him and his wife, “ to their heirs and assigns forever,” it would have been in strict conformity with the authority which Hoof admits that he vested in him, and such deed would have been perfectly valid for all the purposes intended to be accomplished. If James D. Hoof, Sr. being the owner of the negroes, had executed a deed in the terms of that of October, 1817, by which he gave, granted and confirmed to the “joint heirs” of himself and wife three negroes, it would be competent for the Court to enquire into the meaning, and if not inconsistent with principle, to give effect to that intention. In Bag-shaw v. Spencer, Lord Hardwiche, admitting that there ought not to be one rule of property in Law, and another in Equity, says: “ but surely a Court of Equity may be more liberal in the construction of words, to make them agree with the intent of the party ;” and he denied that “ even in the case of volunteers, the words must be taken as they are, and cannot be varied from.” According to the strict legal construction, no persons could be said to be the “joint heirs” of J. D. Hoof, Sr. and Ann, his wife, as both of them were still in esse.— - The term “joint” indicates that no immediate transfer and enjoyment was intended, but rather that it was a settlement on the issue of that marriage, in contradistinction to the issue of any other marriage. It is not very distinguishable from the case of Dawson v. Dawson. It was there held that an interest might pass by deed, which was to be enjoyed in fu-turo, and that the grantor himself stood seized in the meantime. It was also ruled that if a trustee were necessary, this Court would appoint a trustee in that case. In that case the donor “ gave up all to the chilldren named in his will.” It was determined that the enjoyment of the property, given by the deed, was postponed until the will went into operation by the death of the testator. The admissions of James D. Hoof, Sr. are perfectly competent to show that the deed of the 23d October, 1817, was made with his privity and consent. It was manifestly intended as a settlement upon the joint heirs of J. D. Hoof and wife, as the terms purport, and as the defendant admits. In order to blind his creditors, the very inartificial (but as it proved very effectual) expedient was resorted to of having the deed executed by his father-in- ^ jaW) Thomas Jackson. It is not for Hoof to defeat the pur ■ / poses of the settlement altogether by alleging that a life estate tQ jijmseif was not expressly given. The life interest was left in the original owner, and thus the effect was in conformity with the admitted intention — nor is it perceived that the result would be different as to the rights of the complainants, if Thomas Jackson had been the real owner at the time of the execution of the deed. The terms indicate clearly enough that the object was to make a settlement, and not to transfer an immediate interest and right of enjoyment to those in whose favor the deed was executed. The father would be construed a trustee, but as to the complainants only for the purpose of preserving the property, and delivering it up when the right of enjoyment commences.</p> <p>It is ordered and decreed that the transfer of the slaves, made by the defendant, James D. Hoof, Sr. pendente lite, be set aside and annulled, and that he be perpetually enjoined from eloigning, removing or otherwise disposing of the same. That he file forthwith in the office of the Commissioner, an inventory of said slaves, and that the bond heretofore given by him, stand as security for his observance and fulfilment of this decree. Parties to pay their own costs.</p> <p>The complainants, William W. Holeman, and Sarah, his wife, Polly Hoof, Isabel R. Hoof, and Walter M. Hoof, appealed and moved to reverse or modify the circuit decree, upon the following grounds :</p> <p>1st. Because the deed of Thomas Jackson, dated 23d October, 1817, vested an absolute estate m the slaves Rose, Milly and Jack, in Thomas C. Hoof and Sarah Hoof, the only children of James D. Hoof, and Ann, his wife, in esse at the execution of said deed.</p> <p>2d. Because his Honor, the Chancellor, admitted parol testimony to explain, control, and vary the terms of the said deed.</p> <p>3d. Because the declarations of Thomas Jackson, made subsequently to the execution of the said deed, were admitted in evidence.</p> <p>The defendant, J. D. Hoof, Sr. appealed from the decree of the Chancellor, and moved to reverse the same, upon the ground that the deed of October, 1817, conveying slaves to the heirs of a person in esse, is a nullity, and that neither the complainants nor any other children of J. D. Hoof, Sr. take any interest in the said slaves by virtue of the said deed.</p>

This cause was heard by Johnston, Ch. at Columbia, June, 1849; from whose decision this appeal was taken. The facts appear in the following opinion of the Appeal Court.

<p>Before Caldwell, Ch. at Abbeville, June, 1848.</p> <p>Caldwell, Ch. This case was presented on exceptions to the Commissioner’s report.</p> <p> Plaintiff’s Exceptions. </p> <p>“ 1. Because the Commissioner held that Alexander Hunter, the executor of the tenant for life, Jane Finley, was liable to account for only so much of Thomas Finley’s estate as remained in the possession of the tenant tor life, at her death, or the corpus of the personalty bequeathed to her use for life, which went into her possession.</p> <p>“ 2. Because from the sum of $1,757 40, the value of articles that went into the possession of the tenant for life, at the death of the testator, after excluding specific legacies, the Commissioner deducted the sum of $269 98f, being the value of sundry articles as given in the appraisement of Thomas Finley’s estate, which at the death of the tenant for life were so diminished in value as to amount, at the sale of tenant for life’s estate, to only the sum of $105 01-J.</p> <p>“ 3. Because the Commissioner held that according to his construction of Thomas Finley’s will, the tenant for life was not liable to account for any property of testator that went into her possession ; and of the whole estate that so went into her. possession, gave to complainant only the sum of $105 01^, the value of the articles which remained at the death of the tenant for life.”</p> <p>“ 6. Because the Commissioner erred in not charging the estate of Jane Finley with the sum of $283, money which went into her hands at testator’s death.”</p> <p>These four exceptions bring up the questions that arise under the will of Thomas Finley. After the testator had bequeathed several slaves and other personal property to his wife Jane Finley, absolutely, he devises and bequeaths as follows, “that she may have a comfortable support and maintenance, I give her the tract of land on which I now live, containing 250 acres, situate on Sawney’s creek, in the District and State aforesaid ; together with all my other negroes and property of every kind whatsoever, that I may die possessed of, for her use during her natural life, 6pc. After the death of my said wife Jane, and after the payment of the several legacies herein mentioned, 1 give and bequeath to Reuben Finley, of the State of Tennessee, Wheelwright, whose mother’s maiden name was Catharine Kinder, the aforesaid tract of land, together with all the negroes and all the property belonging to my estate, of what kind soever, real and personal, at the death of my said wife, Jane, to him and his heirs forever, on the following conditions,” «fee.</p> <p>The first question is as to the cash on hand at the testator’s death; if that had been the only article bequeathed, there would scarcely be a difference of opinion as to what was intended by the testator; the tenant for life was entitled to the use, or interest, of the money for her life, and her estate is liable at her death to account for and pay over the principal to the remainderman. — -The Commissioner has properly sustained the sixth exception in his report on the exceptions.</p> <p>The question as to the other articles of personal property, is, I think, no longer open, since the cases of Patterson v. Develin, and of Robertson et al. v. Collier et al. The principle was clearly expressed in the former, and recognized and approved in the latter case, “ that the perishable articles cannot be considered as belonging absolutely to the tenant for life, neither can they be sold, because they are necessary to the preservation of the estate. The tenant for life must therefore be considered as a trustee for the remainderman, and must preserve the estate, with all its appurtenances, in the situation he received it.” In illustrating this view, Chancellor Harper says, “the tenant for life is entitled to the use of the estate, but jt is such a use as a prudent proprietor would make of his estate. The profit of an estate is the nett income, after defraying all necessary expenses ; and to renew a plough that is worn out, or replace a horse or mule that dies, comes under the head of necessary expenses. Thus the relative rights of the tenant for life and remainderman will be the same, whether the estate be sold and the proceeds vested, or retained in kind. If at the termination of the life estate, all the articles of the sort mentioned, are not in as good condition as when he received it, the tenant must make good the deficiency.”</p> <p>If I did not consider the question settled by other cases, I should be inclined to a different opinion as to some of the articles ; but I feel bound to adhere to established rules, and it would be unsafe to depart from them, unless the terms of the will clearly expressed that the testator intended that a different principle should be adopted in the disposition of his estate.</p> <p>The 4th and 5th exceptions are as to the allowance of counsel fees to the executor for professional advice and services. The Commissioner reports on these exceptions as follows : — “ The first item of counsel fees referred to in this exception, (4th,) to wit. $200, is included in the return of A. Hunter, executor of Jane Finley, who is also the executor of Thomas Finley, and was for counsel and advice in relation to the estate in litigation, in this case, prior to the filing of the answer. Upon a more mature reflection, the last counsel fee, to wit, $200, for the present litigation, the Commissioner reduces to $100; and his report is so modified, in all other respects; this exception is overruled.” Upon the 5th exception, the Commissioner reports: “ The counsel is mistaken as to the reference ; upon one of the references held in this case, it was distinctly announced by counsel, in the presence of Mr. Thomson, that a reasonable fee was claimed to be charged upon the balance found in A. Hunter’s hands; and although no testimony was offered to fix the amount— supposing it to be allowed — the Commissioner being fully aware of the professional services rendered, thought it not going beyond the limits of his duty to fix it himself, and thinks the fee, modified as above, very reasonable indeed. The only question with the Commissioner was whether the, balance found in the executrix’s hands should be charged with it.” There is no difficulty as to the principle upon which counsel fees are to be allowed to an executor or administrator; when an estate requires professional services to prosecute or defend its interest, and where the executor or administrator does not litigate for his own benefit, he will be allowed a counsel fee ; so he will be allowed fees paid for general advice as to the most proper and profitable course of administration; but where he fails to do his duty, and is called to account, or litigates questions on which he is individually interested, or where he resists the claims of those interested without some reasonable ground, he is not entitled to charge the estate with costs or counsel fees that he has incurred. — ■ Warden v. Bartz, Wright v. Wright, Ther-man v. Angel, Wham v. Love. The evidence of the mount or value of the services, is wha.t the Commissioner states of his own knowledge; and this, as the charges appear to be reasonable in his opinion, might be sufficient, it they had not been objected to, and if it were not that there was some mistake of the plaintiff’s counsel about the claim. In the despatch of business, such accidents will occur; and to confirm the report without giving the party a further opportunity of examining the charge of the counsel fees might operate as a surprise; and as the report will have to be modified, these exceptions are recommitted with it. The Commissioner will report the specific services rendered, and their value.</p> <p>“ 7. Because the Commissioner should have allowed the administrator of Reuben Finley the hire of the slaves, after the death of tenant for life, until the end of the year 1845.” The tenant for life, Jane Finley, died on the 29th of November, 1845. The construction of the will of Thomas Finley, expressed in this opinion, and the decisions in Leveret et al. v. Leveret et al., and in Herbemont, ádntir. v. Percival, — pre-elude this charge from being sustained against the estate the tenant for life.</p> <p>“8. Because the commissioner allowed commissions on sums received by A, Hunter, belonging to the estate of the remainderman.” The Commissioner in his report on the exceptions, sustains this exception, except as to the commissions on the last item of rent and hire, which (he says,) should be allowed the executor, inasmuch as the rent and hire were by the consent of all the parties.”</p> <p>An executor or administrator is entitled to retain or receive for his ordinary services 2% per cent, for receiving, and 2J per cent, for whatever he pays in credits, debts, legacies, or during the course or continuance of his ment or administration; bnt the funds so received or paid ; must belong to or arise out of the estate of his testator or intestate. This principle cannot apply to the receipt and disbursement of the funds of another person. If there was any special agreement for him to receive other funds, it must provide for his commissions, or they cannot be allowed. A private agent is not entitled to any • such claim, unless he make it a part of his contract. — (Randall, adm’r. v. Pinck-ney, quoted in Mack-peas v. Heath et al.</p> <p> Defendant Excepted, </p> <p>“Because the Court having ordered, by its previous decree, that the costs of A. Hunter should be paid out of the estate of Thomas Finley, the Commissioner erred in reporting his costs should be paid out of the estate of Jane Finley.” The decree of Chancellor Johnston is conclusive; it orders the costs “ of A. Hunter and Thomas M. Finley, as representatives of Jane and Thomas Finley, and Reuben Finley, respectively, to be allowed out of the estate represented by them."</p> <p>By taxing the items of costs incurred by the representative of each estate separately, it will be easy to apply the principle, and to determine which estate is liable.</p> <p>It is therefore ordered and decreed, that the Report of the Commissioner be modified agreably to these views, and that it be recommitted to him for that purpose.</p> <p>The defendant, A. Hunter, executor of Jane Finley, appealed from the decree, on the grounds :</p> <p>1st. That by the terms of the will of Thomas Finley, nothing whatever is given to the remainderman, Reuben Finley, except such property as should exist and remain in kind after the use of it by the tenant for life, Jane Finley. And to require her executor to account for tho value of the property at the time it went into her possession, isioholly inconsistent with the intention of the testator.</p> <p>2d. Because his Honor erred in sustaining the 8th exception to the Commissioner’s Report, allowing commissions to the executor upon sums received for the rent and hire of land and negroes, which by the decree were ascertained to belong to the remainderman, but which were rented and hired by the executor, as of the estate of Thomas Finley, up to the rendition of the decree ascertaining the rights of the parties.</p> <p>3d. Because it being the duty of the executor to rent and hire the land and negroes, daring the litigation, he is entitled to compensation for the same; and if he is not entitled to commissions eo nomine, he has a just claim for services rendered against the remainderman, Reuben Finley, which this Court will recognize and enforce in the accounting between them.</p> <p>thomas finley’s will.</p> <p>In the name of God, amen — I, Thomas Finley, of the i. State of South Carolina, and District of Abbeville, Planter, being in health of body, and of sound disposing mind, memory and understanding — praise be to God for the same — do make and ordain this my last will and testament, in manner following — that is to say.:</p> <p>I give and bequeath to my dearly beloved wife, Jane Finley, the following part of my estate, namely; negroes Finder, Tom, Jude, William, Caroline, Milly and Rose, and all my beds and bed-clothes, with my mahogany table, cupboard and cupboard furniture, and kitchen furniture — to her and her heirs and assigns forever. That she may have a comfortable support and maintenance, I give her the tract of land on which I now live, containing two hundred and fifty acres, situate on Sawney’s creek, in the State and District aforesaid, together with all my other negroes and property of every kind whatsoever, that I may die possessed of, for her use during her natural life. And I hereby declare that the bequests and provision hereby and hereinbefore made to iny said wife, Jane, if accepted, is to be taken and received by her in bar and in lieu of dower in my estate.</p> <p>After the death of my said wife, Jane, and after payment of the several legacies hereinafter mentioned, I give and bequeath to Reuben Finley, of the State of Tennessee, Wheelwright, whose mother’s maiden name was Catharine Kinder, the aforesaid tract of laird, together with all the negroes and all the property belonging to my estate, of what kind soever, real and personal, at the death of my said wife, Jane — to him and his heirs forever, on the following conditions, viz: that he emancipate all the female children of my two negro women, Nancy and Jinny, or cause them to be sent to the State of Indiana or Ohio, where the laws of the State will liberate them. The said female children are to be set free, as they respectively arrive at the age of twenty-five years, and all their children with them, should they have any; as it is my wish and desire to put a stop to the slavery of the race of negroes belonging to me in future. I also request that said Reuben Finley have marble head-stones put at the head of my and my wife Jane’s graves, with our names and the dates of our births and deaths respectively engraven on them. Also to enclose our graves with a stone wall of five feet high, with a shutter to the door, of some durable materials, and that spot of ground to be reserved, and never conveyed away with the tract of land. I was born the 11th of February, 1757, and my wife, Jane, was born the 8th of November, 1765.</p> <p>I give and bequeath to my niece, Ann Finley, my negro boy, Franklin, to her and her heirs forever, and also my negro girl, Peggy, until she arrive at the age of twenty-five years, at which age she is to be emancipated, or sent to the State of Indiana or Ohio, where the laws will free them; and her children, if she have any, shall go free with her. The negro boy, Franklin, is not to be bartered or sold out of her family, where I trust he will be well treated.</p> <p>I give and bequeath to Thomas Fiuley Mitchel, son of Francis Mitchel, of the State and district aforesaid, my negro boy, Robert, to him and his heirs forever, hoping he will use him well.</p> <p>And I do hereby nominate, constitute and appoint my trusty friends, Alexander Hunter and John Clark, executors of this, which I declare to be my last will and testament. In witness whereof, I have hereunto set my hand and seal, this day of in the year of our Lord eighteen hundred and twenty-three. Thomas Finley.</p> <p>Signed, sealed, declared and published, by the above mentioned Thomas Finley, as and for his last will and testament, in the presence of us, who, at his request, and in his presence, have subscribed our names thereto as witnesses.</p> <p>Thomas Hunt,</p> <p>Thomas Brough, Jr.</p> <p>William Clark.</p>

Before Caldwell, Ch. at Orangeburgh, February, 1849. Caldwell, Ch. As these cases depend upon the same facts and principles, they were taken up and heard together, and must therefore abide the same result; the trustee, by bill for injunction against Sheriff Keitt, (who levied upon Catey, one of the trust negroes,) insists on the same rights that he sets up, by way of defence, in the first case.

Before Dargakt, Ch. at Edgefield, June, 1849. Dargan, Ch. — This case was heard on report and exceptions. It has heretofore been before the Circuit and Appeal Courts on other issues than those now made. The questions now presented relate, exclusively, to a portion of the share of Lucinda Hill in the estates for the distribution and settlement of which these proceedings were instituted.

Before Caldwell, Ch. at Barnwell, February, 1849. J ’ ' After a full hearing of this cause upon bill, answer, &c. his Honor pronounced the following decree, which sufficiently states the facts.

Before Dunkin, Ch. at Columbia, June, 1848. Dunkin, Ch. A correct narration of the circumstances which gave rise to this litigation, would require a transcript, both of the pleadings and the testimony. It is proposed to ad - vert to only so much of the history as will render intelligible the judgment of the Court.

<p>Under an unrecorded deed from her father, the complainant was the equitable owner of certain slaves which had been levied on and sold by the sheriff under an execution against her husband, and purchased by defendant. Complainant’s trustee had recovered in trover a verdict against defendant, which verdict the defendant had never paid. The Court held that in any aspect of the case, the complainant was entitled to its aid for the recovery of her property ; and therefore ordered the specific delivery of the slaves to complainant, to be held subject to the provisions of the deed, and an account for their hire during the time she had been deprived of their possession; and also that the trustee be perpetually enjoined from enforcing his judgment in trover against the defendant.</p> <p>The protection of a purchaser for valuable consideration stands on this; that he has, bona, fide, acquired the legal title and paid the purchase money before no-tiae of the complainant’s equity. If he has acquired the legal title bat has not paid the purchase money before notice, his plea fails. So, if he has paid the purchase money, but has acquired no legal title, and then receives notice of the compl ainant’s equity, he cannot defeat that prior equity by procuring the legal title.</p> <p>7 Pet. 271.</p> <p>10 Peters, 177, 211.</p> <p>2 Tern. 271.</p> <p>2Strob. Eq. 379.</p>

<p>Complainant’s testator, in his lifetime, had brought an action of assumpsit against the sheriff for a sum of money collected by him under the process of the Court of Law, and retained to be applied to an execution which had been assigned to defendant. The suit had abated by the death of the testator, renewed by the complainants, his executors, and a verdict found for defendant. On appeal for a new trial, their motion had been dismissed. The complainants then filed their bill praying that the execution and judgment in question may be postponed to the judgment in favor of their testator, &c. The Court held the question to be res adjudícala,.</p> <p>The general rule is that the judgment of a competent Court is binding and conclusive upon the parties, and will not be reviewed or reversed by any Court possessing concurrent jurisdiction.</p> <p>In cases of concurrent jurisdiction the same rule as to the statute of limitations prevails both in the Courts of Law and Equity.</p> <p>1 John. Eq. cases, 91. Bailey Eq. 324 2 Strob. L. 105 1 Rich. Eq. 275.</p> <p>Quoted in Phil. Ev. from 11 25 trials’ 2 Douglass, 517.</p> <p>Allen v. Rountree, MS. Cases, 1832; Divis v. Willborne, 1 Hill L. R. 27: Brown v. McMullen 29; Davis v. Hunt, 2 Bail. R. 412.</p> <p>Bail. R.412.</p> <p>Dubosev M'clanaghan, Columbia, Dec'r 1829; Wightman sheriff of Charleston, Mss. December, 1825.</p> <p>Chitty on Cont. 54; Bulow v. Godard, 1 M. & McC. 45; Moses v. McFarlan, 2 Bur. 1005.</p> <p>Dec'r Term, 1847,Columbia.</p> <p>2 Strob. E. It 14.</p> <p>2 Story Eq. Jur S. 1520-1028; Wilson v. Wilson, Mul. Eq. Rhyn v. Vincent’s ex’rs. 1 McC. Ch. R. 169; Ex parte Hanks Cheves E. R. 203.</p>

<p>A trustee cannot claim tire benefit of the statute of limitations as against the personal representative of his deceased cestui que trust until such representative has been appointed; therefore creditors seeking to subject the trust estate to the payment of their debts, and who are entitled to make their claims through such representative, cannot be barred where the bar of the statute is not effectual as against him.</p> <p>An assigned execution field good, although the assignees were, at the time they purchased it and took an assignment of it, the executors of one of the defendants in the execution, and had assets in their hands sufficient to satisfy it, after it came to their hands.</p> <p>2 Strob. Eq. 189,190.</p> <p>Bail. Eq. 360.</p> <p>1 Hill 309.</p> <p>11 Eng. Con. Ch. Rep. 128.</p> <p>Rice Eq. 283-4</p> <p>Id. 286. 4 Russ. 277. Ch. Rep, 665°)</p>

Before Dargan, Oh. at Gillisonville. February, 1848. Held: under- the circumstances of the case first cited, to entitle the party to relief. The distinction there drawn is exceedingly nice and metaphysical. I cannot say that the conviction of my judgment fully acquiesces in the result of the reasoning in that case. Be that as it may, the case is no parallel to this.

<p>Complainant filed her bill, seeking to charge the defendant as Executor de son tort, whilst the assets of the intestate wei e in his hands; subsequently, after the greater part of the estate had passed into the hands of a regular administrator, who was no party to the suit, and had, for some time, been administered by him, a decretal order was made, directing that the sum found to be due complainant, with interest, should be levied on all the assets of the intestate which were in the hands of the defendant at the commencement of the suit, if they should be suflicient, otherwise, upon the proper goods and chattels of the defendant. On appeal, it was ordered that so much of the decree as authorised a levy on any other assets than those which were in the hands of the defendant at the rendition of the decree, be set aside — and that the complainant have leave to amend the proceedings by making the administrator a party defendant.</p> <p>l Saund. 336, note 10. Hubbell v. Forgartie, 1 Hill R. 167. See also, Kinard 2 Rich. Eq. 247.</p>

Before Dargan, Ch. at Walterborough, February, 1848. Dargan, Ch. On the hearing of this cause the only question submitted to me was one as to advancements. The intestate had four children, two sons, the defendants, and two daughters, the wives of the complainants.

<p>Parties who undertake to enforce securities taken by this Court, without haring obtained its authority, must do so under the responsibility of shewing, whenever the matter is drawn in question here, that they have such a case as would have induced the Court to place the instrument under their control; and they must comply with whatever conditions the Court would have annexed to its order for the delivery or assignment of the securities to them.</p> <p>Where a single party is manifestly entitled to the exclusive benefit of a security in the hands of the Court, it may be ordered out to him, upon the terms before stated; but where several parties are interested, and the application is by one of them, it would seem to be the safer practice to direct the officer holding the security to bring suit, upon being indemnified as to costs and expenses; and to bring the proceeds of the suit into Court for its further order.</p> <p>Suits at law, upon securities taken by this Court, must be at the risk and charge of the party desiring to use them, and in exoneration of the Commissioner.</p> <p>1 Haggard, 139. 1 Strob. Eq. 407.</p>

<p>Where in contemplation and consideration ofmarriage, and with the view of making a settlement of her property to the sole and separate use of the intended wife, the parties about to contract the marriage, being each clear of debt, joined in a bond for a certain sum to one as trustee for the purpose, and secured the bond by a mortgage of the property, both of which were duly recorded — the Court held that the bond and mortgage were valid as a marriage settlement, and that the trustee (the marriage having been consummated and the husband become insolvent) was entitled to subject the property specifically described in the mortgage to tire payment of the antenuptial bond.</p> <p>Opinion reserved until further inquiry into the facts of the case, as to whether the trastee was entitled to go further and subject other property not specifically included in the mortgage.</p> <p>A husband having made a valid settlement of his wife’s estate in trust for her separate maintenance, was allowed by the trustee the use of the funds of the estate, which, in copartnership with another, he employed in mercantile speculations — becoming otherwise largely indebted, he gave a bond to the trustee for the payment of the borrowed funds, confessed a judgment thereon, and, to secure the same debt, gave a mortgage of his share of the-partnership assets (most of which were still unpaid for;) subsequently the copartners made a general assignment of their estate for the benefit of certain creditors &c., and soon after applied for the beneft of the United States bankrupt act of 1841.— The application of the husband was refused, on the ground that the bond and mortgage to the trustee, and a'so the assignment of the partnership estate, were fradulent under the act and void. The trustee then filed a bill praying that the said bond, mortgage &c., might be declared valid and subsisting liens &c., — The Court not only refused to sanction the attempt to subject the goods of the firm to the payment of the private debts of one of its members (more especially as the goods were unpaid for,) but held the securities and transfer of the property “ utterly void” under the act of 1841 and the judicial proceedings under it.</p> <p>The extent of a party’s claim under a deed is not a matter for inquiry by the master, but for the consideration of the Court on an inspection of the instrument, and the construction thereon to be given.</p> <p>A codefendant may insist that he shall not be obliged to institute another suit for a matter that may then be adjudged between the defendants.</p> <p>Cheves’ E. R. 29-</p> <p>stat. of S. C. 656.</p> <p>Eailey v. Wright, John</p> <p>Cornell v. Lamb, 20 John. R. 407; Day v. Teal, 14John. 404; CranchS299; 4 Har. & McH. 482.</p> <p>2 Bacon, Grants,H. HI 132.</p> <p>Cannon j0hnston Watson & Co. Goodwin, 20 Maine 208; as Winslow et al. at Portland, c. Law Reptr 347.</p> <p>Cooke on Bank 265; Cooper H, 320; Owen 239; C. Law 352.</p> <p>Brown v. Jones, 1 Atk. 190; Prac. in Ch. 101; 2 Ves Sr. 309; Colville v. Parker, Croke jac. 158; Griffin v. Stanhope H. 454; Atberly on M. ‘156 ‘</p> <p>, pon™ 742 Coolie on Bank. 242-3.</p> <p>Hill on Trustees 269 Lewin on Trusts, Cooke on Bank 128-9.</p> <p>Pinket v. Wright 2 Hare>129></p> <p>Taylor v. Plumer, 3 M. & s" 525; Scott v." Swan, Willis,</p> <p>Ex parte Say-Ws.169.</p> <p>Lewin on Trusts, 257.</p> <p>1 Rich. Eq. R, 294.</p> <p>2 Sch. and Lef. 718.</p>

Before Dargan, Ch. at Charleston, June, 1848. CIRCUIT DECREE. Dargan, Ch. Edward Shrewsbury, being seized of the real estate mentioned in the pleadings, on or about the 18th February, 1793, executed his last will and testament. He shortly after died, leaving the said will unrevoked and in full force and effect.

<p>Testatrix bequeathed to her Executors “ and the survivor of them, his tors and Administrators,” several slaves, with their future issue, “ with this special charge, that no other service or wages shall be required of them, than may be sufficient to pay their taxes.” She also bequeathed certain sums of money, to be employed by her executors, for the education of the slaves. The court held, that both the slaves and the legacies bequeathed to them, were the absolute property of the executors, as legatees under the will, and that the charge as to the service to be rendered by the slaves, was mere advice, which depended for its observance upon the will of the donees, and not a trust which could be enforced in any court' in favor of the slaves.</p> <p>2 Hill 543 Speer’s e¿ 256.</p> <p>11 Stat. at Large, 155.</p> <p>3 Story, 266.</p> <p>3 Dali. 387. 8 Mass. 445. Ib. 423.</p> <p>6 Craneh, 138.</p> <p>2 Gall. C. C. R. 138.</p> <p>2 Story, 259.</p> <p>4 Dess E. R. 266.</p> <p>1 Ves. & B. 273.</p> <p>Hill 65.</p> <p>V. & B. 296.</p> <p>Rich E. R. 61.</p> <p>7 Stat. of S.C, 442, 443.</p> <p>1 Hill Rep. 423.</p> <p>Linam v. Johnson Bail R. 137 ’</p> <p>Lenoir v. vester, i Bail. R. 032.</p> <p>2 Hill Cli. Rep. 314.</p> <p>1 Domat. 45, Sec. 1 advicé the use of rules.</p> <p>1 Domat. 5, sec. 15.</p> <p>Taylor’s Civil aw’168'</p> <p>Lit. 4th, p. 228.</p> <p>Kent’s Com.</p> <p>11 Stat. of S. Carolina, 154.</p> <p>Rice’s Law Reports, 196.</p> <p>Finley v. Hunter, 2 Strob. E, R. 218.</p>

Before Dunkin, Ch. at Kershaw, June, 1848. Dunkin, Ch. — On the 18th of April, 1837, J. W. Cantey executed to the complainants a mortgage of certain real estate in Camden, to secure them for a loan of their two notes of the same date, for six thousand dollars in tin? aggregate, to be discounted in the Branch of the Bank of the State of South Carolina at Camden, and the proceeds to be passed to the credit of J. W. Cantey.

<p>The following words used in a bequest to a married woman, 11 by her to be freely enjoyed to every intent and purpose^ as Iter own in every respect ” held not to create a separate estate.</p> <p>The absolute terms in which tire property is given to the wife, or the amplitude of her enjoyment, have never been deemed sufficient to create a separate interest in derogation of the common law right of the husband.</p> <p>See Adm'r Forbes v. Foót 2 McC. 331.’</p> <p>11 Cond. Eng. C. C. 127.</p> <p>§ 1383.</p> <p>3 Hill R. 145.</p> <p>Armstrong 4 Myine & Craig, 377, and Newland v. Painter Id. 408-and note to §1384. 3 StJuns</p>

Before Johnston, Ch. at Newberry, July, 1849. The following circuit decree states the facts necessary to a correct understanding of the case : Johnston, Ch. — The plaintiff, in this bill, against the defendants, Martin Kinard, Henry H. Kinard, and Henry Oliver Henson, seeks, principally, the delivery of a specific slave, named in the pleadings.

<p>Note. — The following is the Circuit Decree, upon the heaving of which an issue was ordered, as appears in the report of the case (ante 34.] When that case was prepared for the press it did not appear to the Reporter that it was necessary to publish this decree — further adjudication of the points involved in the case have, however, convinced him that in all its phases, it should be laid before the profession. Upon the issue ordered, the jury found in accordance with the principles of this decree.</p> <p>2 Bail, 588.</p> <p>2 Ves. Sr. 43.</p> <p>3 Phillps, notes 1261-4, and note 888.</p>