Volume 24 — South Carolina Equity Reports

<p>That the Court of Equity has the power to sell the estates, whether vested or contingent, of infant remainder-men, who are parties before the Court, is unquestionable ; the Court also has the power to bar, by its decree for sale of the property, the interests of unborn contingent remainder-men, and of contingent remainder-men, residing abroad, whose names and places of residence are unknown, and who of course cannot be made parties before the Court.</p> <p>In such cases, tire Court acts upon the property, and, by the sale under its decree, vests a fee-simple title in the purchaser; the rights of all the parties in interest are transferred from the property to the fund arising from the sale, and, so far as it is practicable, are protected; and should the fund be afterwards lost, the original rights of the parties to the property are not thereby revived.</p> <p>To a bill for such a sale, it is sufficient, it seems, if the person holding the life estate, and all other persons in esse, who have an interest and are known, are made parties.</p> <p>The order for sale is a matter of discretion with the Court, and may be confined to a part only of the property.</p>

<p>Before Dargan, Ch., at Laurens, June, 1849.</p> <p>Prom the circuit decree in this case, some of the parties appealed, and now moved this Court that the decree be reversed.</p>

Before Dargan, Ch., at Lancaster, June, 1850. This case came before the Court on the report of James H. Witherspoon, Commissioner, as follows: “ Dr. G. L. Massey, late of the district, deceased, was the administrator de bonis non of William Massey, the father of the said wards, and afterwards was appointed by this honorable Court the guardian of their persons and estates.

<p>An administrator is entitled to ten per cent, commissions on interest, only where the interest is made by letting out money and receiving it in annually, by which it is made an accumulating fund, or where he sutlers it to accumulate in like manner in his own hands; where he retains the money himself, and is charged only with simple interest, he is entitled only to the usual commissions of two and a half per cent, for receiving, and two and a half per cent, for paying it away, or, in other words, to five per cent, on the interest.</p>

Before Dargan, Ch., at Chambers, May, 1850. Complainants moved the following order, to wit: “ that the complainants have leave to amend, nunc fro tunc, the bill in the case stated, by alleging that David Ewart gave bonds to the Commissioner of this Court; one bond in the sum of twenty • four thousand dollars, conditioned for the faithful discharge of his duty, as guardian of James B. Ewart, dated the tenth day of September, eighteen hundred and thirty-six, with John McMillan…

<p>The condition of a bond, taken by an Ordinary from an administrator, with the will annexed, was in the form prescribed for cases of intestacy, by the 21st section of the Act of 1789, except that there was no clause for surrendering {h.?,administration in ease a will should afterwards appear, and be proved by the executor — it contained no reference to the will, and omitted the clause requiring the administrator “to pay and deliver all the legacies'’ &c., as prescribed for cases of administrations, with the will annexed, by the 20ih section of the same Act: held that the bond was not good as a statutory bond, and that it could not be enforced against the administrator and his sureties by a legatee.</p> <p>The validity of such a bond, at the common law, can properly be determined only in a suit in the Court of Law, in the name of the Ordinary.</p>

Before Dunkin, Ch., at Williamsburg, March, 1850. In the case first stated, Footman vs. Pendergrass, the following is the decree of the circuit Chancellor : Dunkin, Ch. This cause was originally heard by the late Chancellor Caldwell, at March sittings, 1848.

<p>Before Dargan, Ch. at Edgefield, June, 1850.</p> <p>This case will be sufficiently understood from the opinion delivered in the Court of Appeals.</p>

<p>Before Da eg an, Ch., at Edgefield, June, 1849.</p> <p>In this case— which came up on exceptions to the Commissioner’s report, in obedience to the order of reference made by the Court of Appeals, 2 Strob. Eq. 174-195 — the decree of his Honor, the Circuit Chancellor, is as follows:</p> <p>Daugan, Ch. This case having been referred, by the Court of Appeals, to the Commissioner in Equity, to enquire and report as to various matters of fact, necessary to be ascertained before a final adjudication of the questions between the parties could be made, the Commissioner has, at this term, reported upon all the matters submitted to him. To this report, both complainants and defendants have exceptedj and this is the form in which it comes before me for a hearing.</p> <p>I will consider the defendants’s exceptions first, as they raise questions that may, in some measure, be considered as preliminary to those presented in the exception of the complainants. The defendants’s first exception to the report is, “ because the Commissioner has erred in charging the balance of the debts, after exhausting the intestate property, to the bequests to the defendants, until the amount of said bequests was exhausted, and then apportioning the balance of debts still unpaid, between the devises to the defendants; whereas, it is submitted, that where devises and specific legacies have to abate to pay debts, there is no legal distinction between real and personal property, and that the value of both devises and bequests should contribute rateably, without regard to the distinction between real and personal property.”</p> <p>This exception raises a very important question, and I am not aware that the particular question here made, has ever been expressly decided, m any case occurring in the Courts of this State. If the point were to be adjudicated by the law of England, the way would be perfectly clear and open. I would have but to travel a broad and beaten path, so well defined that it would be impossible to commit an error. In the Courts which sit in Westminister Hall, on a bill to marshall the assets of a testator for the payments of debts, a specific legacy would, in a question like this, undoubtedly be primarily liable, in exoneration of a devise of real estate,, which is always specific; and the primary fund would have to be exhausted before the devise could be touched. And in support of this doctrine, as strong an array of authorities and decisions, flowing in an uniform and unbroken current, could be presented, as could be adduced in support of any principle of British jurisprudence whatever. The origin of this decided preference of the English law, in favor of the heir or devisee, over the legatee or inheritor of personal property, is to be looked for in remote ages. . Among a people living under, the feudal system, landed estate constituted the predominant element in the social and political organization. And hence, we can hardly be surprised at the vast importance that was attached to its possession. The aggregate of the personal property then, embraced but a small portion of the wealth of the nation, while the few goods and chattels, that were possessed by the humbler classes, were insecure, and liable to be snatched away by the lawless, marauding barons. The lands were all monopolised and held by the strong arm of military power. Commerce had not then expanded her sails upon every sea, and in co-operation with the mechanic arts, and a more enlightened agriculture, swelled the wealth of the nation in personal property, to the enormous and incalculable amount that now exists. The feudal system yielded to the irresistible influence of advancing civilization ; but it yielded slowly, arid its stern features are still, and for a long period to come will remain, deeply impressed upon the civil polity of the British Isles. And even here in this new and distant land, and under our republican institutions, differing so widely from those of mediaeval ages, it not unfrequently imposes its rude shackles upon the administration of justice. Such is the origin of that preference, given by the English law, to the devisee over the legatee, and which discriminates unreasonably and unjustly between them. I have alluded to the vast increase, in modern times, of wealth in personal property in the United Kingdom. Its aggregate value now, greatly exceeds that of the real estate. This change in the condition of the country, as to the relative value of real and personal property, it might be supposed would lead to some modification of those distinctions which the law makes between them, and this result has happened to a very considerable extent : but, though the feudal system has passed away, leaving, however, its strong impress upon the institutions of our mother, country, there are causes still in operation, that impart to real estate an importance beyond its intrinsic value. The hereditary nobility constitute the great bulwark of the British monarchy ; the privileged classes form a barrier, that interposes between the throne, and popular encroachments and republican tendencies. The existence of their privileges, is identified with the prerogatives of the crown. They support the throne, not as their warlike ancestors did, by the sword and by military array, but by the influence of their enormous wealth, and their power as hereditary legislators. They are the strong pillars that support this ancient monarchy. Yolcanic and pent up fires smoulder beneath the venerable pile ; the waves of popular discontent dash madly round the foundations.- Take away the barrier, from which the surge is made to recoil; remove the weight by which the popular upheaval is repressed, and the flood and the earthquake would do their work in an instant; and this proud and powerful monarchy, in all its colossal proportions, would be swept away at once and forever. No reflective mind that has pondered upon the rise and fall of empires, can doubt for a moment, that the same revolutionarjr vortex that swallows up the British nobility, will also ingulf the British monarchy. These views are forcibly felt, if not acknowledged, by their enlightened statesmen and public functionaries. They are appreciated by the middle classes, and by all the friends of peace, order and stability, who hence submit to admitted evils and abuses, “ rather than fly to those they know not of.”</p> <p>The British nobility are essentially a landed aristocracy. They have other forms of wealth of course; but their dignity and family pride, are made to rest principally upon their territorial domains. A landless noble is an unfortunate being. A Duke, a Marquis, or other hereditary peer, without a rental, is an object of contempt to his own order, and of ridicule to the classes beneath them. The same remarks apply, with greater or less force, to other orders of the nobility, and the gentry generally. Very great stress is laid upon their hereditary real estates. And no sooner has a tradesman, who has amassed a fortune, received the order of knighthood, or retired without that distinction,' — or a judge, or a successful soldier, enriched by the rewards of the State, been raised to the peerage, than they look about for investments in real estate. They purchase country seats, and their appurtenances, and hope to become the founders of aristocratic houses, and to transmit their honors and possessions to their posterity. It cannot be denied that — where orders of nobility are to exist — landed property constitutes the best form of wealth, and the most stable foundation on which the dignity of ancient and aristocratic houses can repose. Such an estate is less likely to be alienated or dissipated. With such an estate the owner can more easily identify himself, than with money or stocks. The capitalist cannot love his money, as an individual or a thing ; but the moral sentiments cluster thickly and strongly around ancestral halls and hereditary forests, lands, parks and waters. If such an estate is alienated from necessity or caprice, the price is soon dissipated, and the degradation of the owner from his castle, soon follows.</p> <p>Thus, it has become a prevailing principle in the English law, to give preference to land, and a prevailing sentiment in the aspiring portion of English society, to seek that mode of investment. Hence their law of entails, and their laws of primo-gen-iture, the policy of which is to sustain their ancient aristocratic houses, by preserving their estates from alienation and disintegration. Hence the law, which exempted real estate from the payment of debts, except those secured by specialty ; and even in that case, the remedy of the creditor was restricted. And hence the principle, which has become the subject of enquiry in this case, by which a preference is given to a devisee, over a specific legatee, in the payment of the testator’s debts. None of the causes which in the mother country conspired to produce this unjust and unreasonable distinction, are in operation with us. We are far enough removed, both in the lapse of time and the form of our institutions from the feudal system, not to be fettered by its dogmas, where they are felt to be inconvenient, unreasonable and unjust; more particularly where, as in this case, we are not bound by any authoritative decision of our own Courts. The statute de donis conditionalibus has never been of force in this State. We have abolished long since the law of primogeniture. Our law of descent is adapted not to aristocratic, but to republican forms of society. Its policy is rather to pull down, than to build up and sustain, great and overgrown estates. By the Statute 5 Geo. 2, Ch. 7, A. D. 1732, we have abolished all distinctions whatever, between real and personal estate, in the payment of debts. By its provisions, lands are declared to be assets for satisfying the claims of creditors, and are made liable to execution, “ towards the satisfaction of such debts, duties and demands, in like manner as personal estates in any of the said plantations respectively, are seized, extended, sold or disposed of, for the satisfaction of debts,” (2 Stat. 571.) In the construction of this Act, our Courts have held (and this has long been the settled law,) that the lands of an intestate, which have descended to the heir, or of a testator, which have been given by will to a devisee, may be levied on and sold by the sheriff, Under an execution against the executor or administrator, without making the heir or devisee a party to the proceedings, by notice or otherwise; although there may be sufficient personal assets to satisfy the debts. Martin vs. Latta, (4 McCord, 128 ;) jD’ Urphy vs. Nelson, (ib. 129, note.) The Stat. 5 Geo. 2, and the judicial interpretation it has received, have placed real and personal property upon precisely the same footing, as it respects the compulsory satisfaction of debts. Every portion of a testator’s estate is liable to his creditors. In regard to them, the question, as to which fund is primarily liable, does not arise. And they have the same facilities of relief, in the way of process,- for enforcing payment against the one, as against the other.</p> <p>Such being the state of our law, and its policy on this subject, is there any thing in justice or reason which would, as between a devisee and a specific legatee, subject the property given by the testator to the latter, to the payment of his debts, to the exemption of that given to the former, by the same benefactor ? Lands have not here that, adventitious value, which for causes we have investigated, obtains in the parent country. They are not more valuable than personal property; than negroes, for example. Indeed the latter, if facility of converting them into cash, at an established marketable value, may be considered a test, are the most desirable of the two. Setting aside the reasons to be derived from the social polity of England, past and present, is there a single argument by which the distinction can be vindicated? Is there any sound legal philosophy which supports it ? Is it not opposed to justice and condemned by reason ? Where a testator gives a tract of land to one, and a chattel to another of his friends, by the same specific form of language, and. a description which identifies both, a rule that would make one of those gifts liable before the other, for the payment of debts, is nothing less than absurd ; except, indeed, ■where the rule has originated in some great and controlling policy. If the testator indicates which fund shall be primarily liable, it is, of course, a different question ; for his will is the law of the case. But the distinction, which is obnoxious to the charge of absurdity, is where both are given in the same form of language, without any expression from the testator, as to which fund shall be primarily liable. Let me illustrate by an example. The testator says, “I give and devise to my son, Michael, my house and lot, in the town of Columbia, on which I live,” &c. “ To' my daughter, Mary, I give and bequeath the following slaves, namely, Tom, Dick, Bet,” <fcc. The testator dies indebted to the value of the slaves, which he intended as a provision for his daughter who must now remain portionless, and be turned a beggar upon the world, because her legacy, although as specifically intended for her, as the real estate was intended for the son, is, by the rule, primarily liable. Is it not the better and more equitable rule, that the devise and legacy should abate pro rata ? I dare affirm that the rule which, in such a case, would subject the legacy to the exoneration of the devise, would, in nine times out of ten, defeat the intention of the testator. When a testator gives his legatee a specifically described negro, he as clearly means that his legatee shall have and enjoy that particular negro, as when he gives to his devisee his land. Where the testator has not intimated the slightest distinction between them, nor hinted which would be primarily liable for debts, upon what principle of justice can the Court interfere, and say that the one of those two equally favored objects of the testator’s love and bounty shall pay the debts — even to the entire exhaustion of his share, and to the exemption of the other? There is no principle upon which such an interposition can be justified. The intention of the testator, we are taught, is the pole star in the construction of wills. We carefully and laboriously seek it, through all the obscurities of language, and by rules of interpretation that are sanctioned by reason and experience. And when we have found the intention of the testator, we are obliged to enforce it; unless, indeed, it be that such intention be contrary to the policy of the law. But in this case, we are called upon to violate the manifest intention of the testator, not because that intention is opposed to the policy of our own laws, but because such a decision would be more in consonance with the policy of a distant and alien land.</p> <p>If we were trammelled by precedents and decisions of our own Courts, the case might present a more dubious aspect. But I have looked over the reported decisions, and do not find that this point has ever been made as an issue and adjudicated by the Court. Dicta there are, contrary to the conclusion to which my judgment has led me. But opinions upon collateral questions of law,, expressed, arguendo, by the Judge, who acts as the organ of the Court, in delivering its judgment, cannot .be considered. more authoritative than his own individual and private opinions. Indeed it is exceedingly unfair to consider them the result of his own settled and deliberate judgment. Such collateral matters are not discussed before and adjudged by the tribunal that decides the case, and oftentimes are but slightly considered by the Judge who expresses his opinion upon them. Therefore, upon the soundest principles, they are regarded as fallacious guides. I would not impugn the decisions in which their dicía have been expressed, nor deny that, as a general rule, personal property should be the primary fund for the payment of debts. But I say that the rule should admit of some qualification, and that a specific legacy of personal property should be liable only, pari passu, with a devise of land ,• and not liable at all, until other assets, real or personal, not specifically disposed of, or charged with or devised for the payment of debts, are exhausted. It is said by the Lord Chancellor, in Harmood vs. Oglander, (8 Yes. 106,) “that in the administration of assets, ordinarily, the first fund applicable, is the personal estate, 'not specifically bequeathed; then land devised for the payment of debts, not merely charged, but devised or ordered to be sold; then descended estate; then lands charged with the payment of debts.” It is obvious, therefore, that even in Eng- . land the intention of the testator is respected, and the legatee is protected, except where he comes into conflict with the devisee; in which case, the latter is exonerated until the interest of the former is exhausted. For such a distinction, I see, as I have said, no reason applicable to the state of circumstances existing in this country. In Warley vs. Warley, (Bail. Eq. 400,) Chancellor Harper, in allusion to the rules prevailing in the English Court, in the administration and marshalling of assets, says, “ we have adopted the English rule to a considerable extent; but the approximation of real and personal estate, in descent and in other particulars, has shaken the rule a good deal.” From which I infer, that it was the opinion of that philosophic jurist that our Courts were not, in the altered circumstances of this country, bound to follow the English decisions on this subject.</p> <p>It was urged, in the argument of this cause, that the first clause of G. H. Hull’s will, in which he expressed his wish that his executor should “ out of his estate, pay off all his just debts and funeral expenses,” was an indication of an intention that the personal estate should be primarily liable; because the real estate not being devised to the executor for this purpose, nor any authority given to him to sell it, the implication is, that he meant that the executor should pay the debts out of the personal estate only. This construction is somewhat specious, but it .does not strike me as correct. The word “ estate,” embraces the realty, as well as the personal property. The words of the clause would, in England, be sufficient to charge the real estate, in cases where it was exempt. And if so, the construction contended for, cannot be the true one. I cannot suppose the testator to have entered into the nice legal distinction which this meaning would imply. I think it clear that he thought his devises and specific legacies would remain intact, and that the general residuary estate, would be sufficient to pay his debts.</p> <p>After a great deal of deliberation, I have adopted the conclusion, intimated in the foregoing remarks, to sustain the first exception of the defendants, which is accordingly done.</p> <p>The third exception of the defendants is, “ because the Commissioner, in ascertaining the value of the real and personal estate, devised to defendant, Zulina, has estimated the fee simple value thereof; whereas, it is submitted, that she could have the enjoyment of the property, but for life, without the power of disposing of it at her death, and that her interest therein, should have been estimated and valued accordingly.” The appeal decree directs the Commissioner to ascertain and report “ the nett value of the devises and legacies to Zulina; and the excess received by her, over one-fourth of the testator’s estate, clear of debts.” The same decree has adjudged that she takes - a fee conditional in the real, and a life estate in the personal estate. In regard to the personal estate, the children of Zulina, if she had any, would take as purchasers. In regard to the real estate, they, would not'take as purchasers, but by way of limitation, and per formam doni. If she takes a fee conditional, as she does by the express terms of the appeal decree, as well as upon principle and authority, then the ulterior limitations over in the event of her dying without issue, are void. A remainder cannot be limited after a fee conditional. The only abridgment of her interest in the land, is its being reduced from a fee simple to a fee conditional. The question then occurs, whether, in valuing her interest in the real property, there is to be any deduction in its estimated value, in consequence of its being a fee conditional, instead of a fee simple. If Zulina Hull, (now Bryan) should have children capable of inheriting this fee conditional, then she may alien and bar the issue. It then becomes in marketable value and for all practical purposes and uses, equal to a fee simple. If she does not alien, it is true that she can not devise it; but, on this contingency, it must descend to her issue, per formam doni. If she suffers it thus to descend without exerting her rights of alienation, it will be her own election, and she cannot complain. If she forbears to bar the issue, having the power to prevent the descent, it may be considered as her own voluntary disposition of the estate; and it will go as most persons would desire their estates to be disposed of after death. The only feature that can depreciate the value of a fee conditional is, the possibility of a reverter, to the heirs of the testator. This reverter is not considered in law as an estate. It is too small and remote an interest to have that character impressed upon it. It is too remote and contingent to be valued. There is no appreciable interest left in the donor. I do not know by what process, or mode of calculation, we could estimate the value of a possibility of reverter to the testator. The value of the possibility of reverter constitutes the only difference between the value of an estate in fee simple, and an estate in fee conditional. It is admitted that Zulina has, at this time, a child or children. If she has, her fee conditional estate, for all practical purposes, is worth as much as if she held it by a fee simple title. There was no evidence as to the birth of children, but the fact was admitted at the trial. At all events, she being a young woman, and married, the contingency of a reverter of the estate is exceedingly remote. I think, therefore, that the principle on which the Commissioner valued the devise was correct.</p> <p>The case is very different as to her legacy. The Court of Appeals has adjudged that she takes only a life estate in the personal property. It has gone farther, and has adjudged that the remainder to her children, after the termination of her life estate, was to be excluded in the valuation of the fourth of her father’s estate, which she is entitled to retain under the provisions of the Act. . The language of the decree is most explicit. “ But,” says the Court, “ if we should take into consideration bounties of this remote description, we should entangle ourselves in inextricable difficulties in the application of the statute. And we deem it safer to hold, that the interests of the children of Zulina, who take as purchasers distinctly from their mother, and not through her, and in connection with her, shall not be considered as a gift to her.” In connection with this part of the decree, the direction to the Commissioner to report the nett value of the devises and legacies to Zulina, has a meaning and an object. It will be perceived that the language of the. passage quoted, repels the idea of excluding from the valuation the interest which the children take in a fee conditional; where they do not “take as purchasers distinctly from the mother, but through her, and by way of limitation.” While the principle is as distinctly declared, that where a life estate is given to the parent, with remainder directly to the issue as purchasers, the life estate is alone to be regarded as a gift to the parent. There are familiar and practical modes by which the value of a life estate may be ascertained. The process, though in some degree necessarily arbitrary, is every day resorted to in the Courts both of law and equity. Approximation is the only thing possible, or that is aimed at, in such estimates. The Commissioner was in error in placing the fee simple value on the negroes given to Zulina by testator’s will. So much, therefore, of the exception of Zulina, as relates to the valuation of the negroes bequeathed to her, is sustained.</p> <p>The fifth exception of the defendants is, “ because the defendants, Bryan and wife, have a right to select out of the property devised and bequeathed to the wife, the particular property which they prefer to keep; and, in throwing off the excess of one-fourth, they have the same right to point out what ■property is thus rejected. In this case, said Bryan and wife elect to take in the first place the whole personal bequest to her, and the: balance in real estate.” This exception raises another difficult question. It is singular that an Act so short, and apparently so simple in its provisions, should have given rise to so much litigation in. the Courts,' and so many difficulties in its construction. I can scarcely hope to pass through the labyrinth of difficulties presented in this case, without falling into some error. The question made in this exception seems to have been decided in favor of the exceptants, in the unreported case of Gardner vs. Atkinson, (MS. Decisions, Book B. p. 340, Columbia). I have not seen that case. It is quoted by Ch. Johnston, in his circuit decree in this proceeding, (2 Strob. Eq. 187.) I should not consider the principle of construction, that obtained in that case, Gardner vs. Atkinson, entirely free from doubt. There are difficulties ; but, upon the whole, I incline to think that [the decision may be supported, as the correct, interpretation of the Act. As Chancellor Johnston has said, in his circuit decree in this case, “ it is the amount or value of the excess over one-fourth that is declared void, and if the bastard will pay up that excess in value, he is entitled to the devise of the whole estate.” The Act does not declare that the gift shall be void for the excess over one-fourth, but “ that it shall be null and void, for so much of the amount or value thereof, as shall or may exceed such fourth part,” &c. It appears to me, that •there is significancy in the peculiar form of the phraseology, that I have placed in italics.</p> <p>The Act does not say in words what disposition is to be made of the portion of the gifts to the illegitimate child, that is declared void. That is left to implication. But, by judicial construction, it is not absolutely null and void, but voidable, at the instance of the lawful wife and children. In Owens vs. Owens, (MS.) it was held that the will of a testator was good and valid against all the world, except as against the lawful wife and children. And in Breithaupt vs. Bauskett, (Rich. X Eq. 465,) it was held, by Chancellor Harper, that the right to vacate the gift for the excess, was so entirely a personal privilege to the wife and children, that it did not survive to the executor.</p> <p>The force and effect of these decisions, and of this construction is to establish this principle, that the lawful wife and child 3n are not joint tenants, or tenants in common, with the illegitimate child, where the gift exceeds the fourth of the testator’s estate. If the Act constituted them joint tenants, or tenants in common, the estate or interest of the wife and lawful children would, on their death, descend to the heirs at law, or, in case of a chattel, be transmitted to the personal representatives. The right then of the wife and lawful children in such a case, is not an estate or vested interest. It is not devisable, descendible or transmissible; is it even assignable? If it is, and should not be recovered in the life of the party assigning, the assignment would be defeated. What, then, is the interest, which the wife and lawful children .take in the gift to the bastard, where it exceeds a fourth ? It is anomalous, and difficult to be defined. It may be called a claim entirely personal to them, to which they are entitled under the restrictions which I have above expressed; a claim to call on the illegitimate child for “ the amount or value,” of what said child has received over the one-fourth part of testator’s estate. The legal title of the bastard is good and perfect, subject only to this purely personal equity, created by the Act, in favor of the wife and lawful children. If they obtain the excess over the fourth in “ amount or value,” is not the spirit of the Act as. well as its words satisfied?</p> <p>Suppose that the bastard takes, by the will, houses, lands or chattels, which exceed the fourth, by an inconsiderable amount; Will it be said that pecuniary compensation for the excess would not satisfy the requisitions of the law 1 Or suppose, as in this case, the bastard takes negroes by the gift, to which she is, or may be attached, as well as lands, as the claimants have no legal title or estate in any of the property; may she not say to them, I will satisfy your claim out of the lands 1 It seems to me that Bryan and wife have a right to elect what property they will keep, to make up their lawful fourth, and to throw off the excess. This exception is sustained.</p> <p>I come now to the consideration of the exceptions on the part of the complainants. The first claims an unqualified right of partition of the property, on the part of the complainants, with an account of rents and profits. I have already decided this question, in my decision upon the fifth exception of the defendants. The unqualified right to a partition would pre-suppose that the wife and lawful children had an estate or vested right in the property, to the amount of their claim. This, we have. seen, is not the case. There are circumstances in which partition may be proper, and even necessary, and where the Court will resort to this process, as a means of obtaining the proper and necessary results. It must be subordinate to the right of the illegitimate child, to elect what property to retain, to make up the fourth, and what she will throw off; and also to satisfy, by pecuniary compensation, the excess in amount or value over the fourth. If the bastard refuses or omits to throw off, or to give pecuniary compensation for the excess, partition may be resorted to, in the discretion of the Court, for the purpose of dispensing justice among the parties. This exception is overruled.</p> <p>The complainants’s second exception is, because, “ even if the plaintiffs have no right to partition of the specific property given to the defendant, Zulina, by the will of Gideon H. Hull, they are at least entitled to such proportion of the income and profits thereof, accrued since his death, as the excess of the provision for her above one-fourth part of the clear value of his whole estate bears to the whole value of such provision, in lieu of interest. upon the sum at which such excess is estimated.” As a result of the decisions on this statute, and of the principle that the right of the wife and lawful children is a mere personal claim, awaiting their demand, and that they have no estate in the property, I doubt if they are entitled to interest or rents and profits until a demand is made. Of this they could not complain, as in the most of instances it would be their own default, if the demand was not immediately made. On this point, I express no opinion, but say that they are entitled to interest, or an account for rents and profits, (if entitled at all) according as the illegitimate child may elect to make pecuniary compensation, or a partition of the specific property be resorted to as a necessary process, to ascertain and put them in possession of their rights. This exception is overruled.</p> <p>It is ordered and decreed, that the report be re-committed to the Commissioner, and that the parties have the rights belonging to them, as declared in this decree, and that the report be re-formed and made conformable to the principles herein above set forth.</p> <p>The complainants appealed, on the grounds,</p> <p>1st. That the decree is erroneous in deciding that lands, specifically devised, are chargeable, and must contribute for payment of the testator’s debts, rateably with personalty specifically bequeathed, where the will does not otherwise direct.</p> <p>2d. That, according to the correct construction of Gideon H. Hull’s will, the entire personalty of his estate is charged primarily with the payment of his debts, and must be exhausted before any contribution for that purpose can be exacted from the real estate devised.</p> <p>3d. That, instead of the excess in value of the provision made for the defendant, Zulina, by the will of Gideon H. Hull, above the one-fourth part of the clear value of his estate, estimated in money, with interest thereon, the plaintiffs are entitled to have partition made between her and them of the specific property given to her by the will, and an account of the income and profits of the same, accrued since the testator’s death.</p> <p>4th. That the decree errs in sustaining the fifth exception of the defendant, Zulina, to the Commissioner’s report, the law admitting no such right of election on her part as is set up by that exception, and recognized by the decree.</p> <p>The defendants also appealed, on the ground,</p> <p>As to that part of the decree which sustains the Commissioner’s report, and overrules so much of defendants’s third exception to that report as relates to the valuation of the interest which Zulina Bryan took under the will in the real estate devised to her, the defendants submit, and will endeavor to maintain, that the interest she took in the real estate devised to her. whatever be its legal character or denomination, is less than an absolute or fee simple title; that, at the death of the testator, it was practically, at most, but a life estate to an unmarried female infant, about ten years of age, with the capacity of becoming enlarged to a fee simple, upon her living to the age of twenty-one and having lawful issue. The estimated value of these contingencies should have been ascertained by the Commissioner, and deducted from the intrinsic value of the lands.</p>

Before DuNkin, Ch., at Kershaw, June, 1848. This case will be sufficiently understood from the decree of his Honor, the Circuit Chancellor, which is as follows : Dunkin', Ch. — The will of Powell McRa bears date the 11th day of January, 1844 ; and the testator died on the 19th day of May, 1847.

<p>Defendant, a Commissioner in Equity, having funds of the Court to the amount of about $1,600, in his hands, was ordered by the Court to invest the same at interest, on good personal security; one M. owed the defendant, on his private account, about $1,000, and defendant, as Commissioner, loaned M. the $1,600, on bond and personal security, retaining, by M.’s offer, out of that sum, the amount that M. owed the defendant. M. and his surety afterwards became insolvent, and nothing could be collected on his bond: — held, that defendant had not invested the $1,600 in conformity to the order of Court, and that he was liable for the whole amount thereof, with interest.</p>

Before Dargan, Ch., at Fairfield,-Term, 1850. The decree of his Honor, the presiding Chancellor, is as follows : Darga v, Ch. — The decree of the Court of Appeals remanded this case to the Circuit Court, only as to the two matters, namely, the note, purporting to be the note of the firm of Jos.

Before Caldwell, Ch., at Chambers, Charleston, Jan!y, 1850. Held: when a testator gave £.500 stock to S, T to receive the interest during life and then to her issue, but in case of her death without issue, the £500 to be divided between, &c; she died without issue — that the limitation over was void for remoteness, and she took an absolute interest under the first words, Attorney General vs.…

Before Johnston, Oh., at Edgefield, June, 1850. The decree of his Honor, the presiding Chancellor, is as follows : Johnston, Ch. William Robertson made his will on 17th September, 1840, and appointed as executors thereof, his nephews, James Robertson and Douglas Robertson, who were cousins; and he died in May, 1841. On 7th June, 1841, the will was admitted to probate, and both executors qualified.

Before Johnston, Oh. at Union, June, 1848. Johnston, Ch. This case comes up on the report and supplemental report of the commissioner, to which the plaintiff has put in eight, and the creditors of the testator two exceptions. 1.

Before Dahgan, Ch. at Spartanburgh, --— Term, 1850, The decree of his Honor, the Circuit Chancellor, is as follows. DaRgan, Ch. The complainant charges in his original bill, that the defendants, Pearson and Bobbitt, confederating together,, by fraud and collusion, have possessed themselves of certain notes of Bobbitt, due to the testator, Robert Stacy, at the time of his death, and refuse to deliver them up.

<p>If an instrument absolute on its face, can be converted, by parol, into a defeasible instrument, except where the omission to reduce the defeasance to writing was occasioned by fraud or mistake, the evidence must be very clear and convincing; and where the allegations of the bill are denied by the answer, there must be more than the testimony of one witness.</p> <p>Where a grantor executes an absolute conveyance of his property to protect it against the claim of his creditor, reserving, by secret agreement, an interest in himself, neither he, nor his administrator, can come into Court to be relieved of the fraud.</p>

<p>Bequest to certain persons, naming them, “ trustees of the South Carolina Conference School, Cokesbury, Abbeville district, S. C., and their successors in office, as a fund m trust for the following specific use or uses,” &c; held, that the bequest was valid.</p> <p>Testator bequeathed the whole of his estate, consisting of land, slaves, horses, cattle, hogs, provisions, farming utensils, furniture, &c., to his wife for life, with remainder over; he died in August, 1846, and his widow, the tenant for life, died in May, 1847; the general condition of the estate was improved, while in the hands of the tenant for life, and it was, when delivered over to the remainder-men, in as good plight as when she received it, though there was an accidental deficieoicy of provisions ; Held, that the representative of the tenant for life was not liable to account to the remainder-men for that deficiency.</p> <p>The principles upon which a tenant for life of personalty, — whether it be a specific chattel, or an entire estate given as a unity, and whether it be consumable in the use, or not consumable, reproductive, or not reproductive, — is liable to the remainder-man, considered.</p>

<p>Construction given to a marriage settlement; husband held bound, by the terms thereof, to support out of the settled property, the wife’s children by a previous marriage, in exoneration of their own property.</p> <p>An administration granted to husband and wife jointly, is the administration of the husband alone; the surety on the bond gives credit to him exclusively.</p> <p>The husband’s marital rights will not attach upon the wife’s distributive share, before it is severed from the bulk of the estate.</p> <p>In ordering a settlement of the wife’s equity, the Court will conform to a previous settlement, agreed on by the parties, though it may have proved ineffectual.</p> <p>The principles upon which the profits of a planting establishment are to be accounted for by an administrator, stated.</p> <p>The accounts of an administrator directed, under very peculiar circumstances, to be taken with great liberality towards him.</p> <p>An administrator, being also, as distributee, a tenant in common of the land, allowed credit, not for the cost of improvements put by him on the land, but for the value they imparted to the premises.</p> <p>Where an administrator’s return to the ordinary is seventeen years old, items vouched before the ordinary and passed by him as charges against the estate, may be regarded as proved, prima facie; of items not vouched, some evidence should be given, but that degree of evidence should be sufficient, which may be expected after such a lapse of time.(A)</p>

<p>Testatrix, who died in 1843, bequeathed ‘ twelve shares of the dividends of’ certain stock to her executors ‘ in trust to pay over the interest on said stock to my slave named Minda, for and during her natural life,’ with remainder over; by another clause of the will, she bequeathed as follows: ‘ I desire that all the property, not specified in this my will, whatsoever, howsoever and wheresoever it may be found, which I now hold, or hereafter I may hold,’ 1 shall go to my infant nephew, H. S., to him and his heirs forever.’ H. S. filed his bill against the executors and remainder-man, claiming that the legacy to Minda, during life, was null' and void, and that it fell into the residue to which he was entitled: Held,—</p> <p>1. That the legacy to Minda was void under the 4th section of the Act of 1841.</p> <p>2. That, being void, it fell into the residue, and that H. S. was entitled to it under the terms of the residuary clause of the will.</p> <p>3. That the next of kin of testatrix had no such interest as required them to be made parties to the bill.</p>

Before DargaN, Ch. at Charleston, February, 1850. The decree of his Honor, the Circuit Chancellor, is as follows.

Before Dargan, Oh., at Charleston, February, 1850. Dargan, Ch. By a deed of marriage settlement, bearing date 15 April, 1818, between Samuel Colleton Graves, and Susan McPherson, the latter conveyed to trustees, certain lands and negroes, in trust for the use of the said Samuel Colleton Graves, and Susan, his intended wife, during their joint lives; remainder to the use of the survivor; remainder to the use of the issue of the marriage.

<p>By the general Act of New York, authorizing manufacturing incorporations, “for all debts due and owing by any such Company, at the time of its dissolution, the persons then composing such Company, shall be individually responsible to the extent of their respective shares of stock in the said Company, and no further;” the defendant had been a stockholder in such a Company, in New York, at the time of its dissolution, and the Company was then indebted to the plaintiffs; the Company being insolvent, and all other stockholders having paid debts of the Company to the extent of their liabilities, the plaintiffs filed a bill against defendant, seeking payment of their debt: Held,</p> <p>1. That by the Act of New York, the defendant was liable, over and above the stock held by her, to a sum equal to the amount of the stock.</p> <p>2. That, under the circumstances, plaintiffs could maintain their bill without joining the other stockholders as defendants.</p> <p>3. That defendant was not liable to creditors for interest on the amount for which she was liable over and above the stock held by her.</p>

<p>Testatrix bequeathed as follows: — “ 1 direct my executors to pay over the residue oí my estate,” &c. “ to the American Bible Society of New York, and to the American Missionary Society of New York, to whom I leave or bequeath it:” the American Bible Society of New York was a body corporate; and no such Society as the American Missionary Society was in existence or ever had an existence: Held, that the American Bible Society was not entitled to the whole of the residue"; and that, as to the moiety intended to be bequeathed to the American Missionary Society, the testatrix had died intestate, and the same was distributable among her next of kin.</p> <p>If the American Bible Society of New York and the American Missionary Society of New York were both in existence, and were capable of'talcing an estate in joint-tenancy, by a proper construction of the terms of the bequest, — regard being had to the different objects of the two societies, — no such estate was intended to be created.</p> <p>A corporation cannot take an estate in joint tenancy, either jointly with another corporation, or with a natural person.</p>

Before Johnston, Ch. at Beaufort, February, 1850. The decree of his Honor, the circuit Chancellor, is as follows. Johnston, Ch. This is a very perplexing case, and arises out of circumstances, whose original obscurity has been greatly increased by the lapse of time.

Before Johnston, Ch. at Colleton, February, 1850. In September, 1793, grants of the Walterborough, or Island Creek Lands, were made out in the names of Robert Goodloe Harper and James Booth Thompson, but were never delivered to them.

<p>Testatrix bequeathed as follows: — “I give, devise and bequeath unto my friend, M. H. my negro woman, Phillis, together with her future issue and increase, trusting that the said M. H. will fully comply with my wishes, respecting the said negro woman Phillis, and her children which may hereafter be bom; and it is further my will and desire, that the said Phillis should be allowed to keep with her, and have the services of her child, Martha, during the lifetime of the said Phillis; and at her death, I give, devise and bequeath unto C. W. the said negro girl, Martha:” and the will contained a residuary clause: Held, that there was no such gift of the beneficial interest in Phillis to M. H, and of Martha to Phillis, as vested the legal title of Martha, during the life of Phillis, in M. H ¡ — that the effect of the will was to vest the legal title to Martha, during the life of Phillis, in the residuary legatee; — and that the recommendation, that Martha be allowed to attend and serve Phillis, amounted only to an address to the benevolence and goq,d faith of the residuary legatee.</p> <p>The decisions in C^TmiUe vs. Carmüle, (2 McM. 454,) and McLeish vs. Bmch, (3 Strob. Eq. 237,) will not be extended to cases where it was not the intention of the donor to bestow the beneficial interest, subject to a particular charge, upon the do-nee of the legal interest: Semble.</p> <p>A slave, although a chattel, is also a person, and, to some extent, capable of the acquisition of property for the benefit of the master. But a privilege attending the person of a slave, or a trust for him, or an executory contract made with him, cannot be judicially established, either for the slave or his master.</p> <p>A bill wilL not lie, it seems, for the specific delivery of slaves, yhere the plaintiff seeks the delivery, not from the peculiar value of the slaves to himself which damages would not compensate, nor, indeed, for his own use, but for tire accommodation of an old negro woman, herself a slave.</p>

Before DaugaN, Ch. at Charleston, February, 1850. The decree of his Honor the circuit Chancellor, is as follows.

Before Dunkin, Oh., at Charleston, June, 1850. Held: that “ James D. Sommers, if now living, would be the person who would be entitled to take,” and decreed, that “ distribution be made of the personal property, which is hereby adjudged to be the estate of the said James D. Sommers, among those persons parties to this bill, who represent the character of distributees, at Ih'e time of…

Before Daugan, Ch., at Charleston, February, 1850. This case came before the Court on exceptions to the report of the Master, which is as follows : This case was referred to me to report on the matters set forth in the pleadings.

Before DtjnkiN, Ch. at Charleston, June, 1850. Held: that the words of the appointment were sufficient to vest the shares absolutely in the daughters ; that the attempt to restrict their interests by limitations to their issue, being inoperative, did not cut down the absolute appointment ; but that it was competent to the donee of the power, to limit the interests which she appointed…

Before Dargan, Ch. at Chester, June, 1850. This case will be understood from the circuit decree, which is as follows. Dargan, Ch. James M. Egger was a person of illegitimate birth. He was possessed of a personal estate. He died in 1842, intestate. There being no person who could claim as his next of kin, his estate escheated or reverted. The administration of the intestate’s estate has been granted to William Kirkpatrick, who is a defendant.

Before Dunkin, Oh. at Barnwell, February, 1851. The original bill was filed on the 16th day of March, 1842, and a supplemental bill was filed on the 29th of August, 1845. The object of the bill was for an account of the estate of John Badger, and involved a very considerable mass of testimony in the way of receipts and expenditures. The defendants closed their references m January, 1850. The case stood on the docket as continued at February Term, 1850, by the complainant.

Before Dunkikt, Ch. at Orangeburgh, February, 1851. Dunkin, Ch. James Inabinit died on the 7th March, 1849, leaving a will duly executed, on the seventh day of January, previous. The testator left a widow, the complainant in these proceedings, and who has also qualified as executrix of his will.

<p>Defendent purchased plaintiffs’s slave from a third person — remained in possession sometime, — and then re-sold her to the person from whom he had purchased, — all •without notice of any right in plaintiffs: — Held, that a bill would not lie to compel defendant to account for the price received by him, and the hire before the re-sale,— plaintiffs should pursue their remedy at law.</p> <p>Nine plaintiffs filed their bill against defendant for the specific delivery of a slave which they claimed as tenants in common: defendant pleaded the statute of limitations, which was sustained as to four of the plaintiffs who were of age four years before the filing of the bill — the other five being then infants: the effect of sustaining the plea as to four of the plaintiffs being to vest in the defendant four-ninths of the slave, held, that, under the prayer for general relief, the other five plaintiffs were entitled to a decree for the sale of the slave for partition.</p>

Before Johston, Ch. at Lexington, July, 1850. Held: in Whitworth vs. Stuckey, (1 Rich. Eq. 411,) that when real estate is concerned, the direct gift is unaffected by the limitation over; and that was the only question, in relation to the construction of the will of Fraser, which was considered and discussed by him in that case.

Before Dunkin, Ch. at Barnwell, February, 1851. This case came before the Court on exceptions, by Lucy J. Enecks, one of the defendants, to the Commissioner’s report. Dunkin, Ch. The exceptions of Lucy J. Enecks arise out of this state of facts. She was a daughter of Elijah Gillett.

Before Dunkin, Ch., at Barnwell, February, 1851. Dunkin, Ch. The complainants are creditors of John G. Free. The object of the proceeding is to set aside a judgment confessed by John G. Free, to his co-defendants, H. B. Rice and Allen F. Free, on the 18th January, 1849.

<p>Where a judgment, confessed for a much larger amount than is actually due the plaintiff, and intended not only to secure the amount due, but, also, to defeat other creditors, is set aside, at the instance of a creditor, for the actual fraud, the whole judgment is set aside so far as creditors are concerned, and the plaintiff must stand upon the original indebtedness.</p>

Before Dunkin, Ch. at Barnwell, February, 1851. Dtjnkin, Ch. This is a petition to compel the specific performance of an agreement for the sale of three lots in the town of Clinton, formerly Blackville. It is charged that, on the 22d June, 1848, defendant agreed to sell the three lots to the plaintiff for one hundred and twenty-five dollars.

<p>Plaintiff having an equitable interest in land, of which he was in possession, and which was about to be sold at a judicial sale, agreed, by parol, with defendant, that he, defendant, should purchase it for the benefit of plaintiff’s wife and children: defendant stated the agreement to several persons, and his statements were calculated to stifle competition among bidders, and actually did prevent one person from attending the sale and bidding: defendant purchased the land at about half its value, and then refused to comply with his agreement: Held, that defendant’s conduct was fraudulent; and he was not allowed to retain the land.</p>

<p>Wliere plaintiff in his bill alleges the execution and delivery of a deed, under which defendant claims, and calls for its production, defendant, Vpon his producing it at the trial, cannot be required to prove its execution and delivery.</p> <p>Where one by his will recognizes and confirms a deed he had previously made, he . establishes the sealing and delivery of it against all who claim as volunteers under him.</p> <p>A conveyance by deed, prior to the Act of 1841, of slaves in trust to allow the slaves to be practically free, is valid: — the trustee holds the slaves practically discharged from the trusts whether they be legal or illegal.</p> <p>Where a party executed a conveyance of slaves to trustees, for the benefit of the slaves themselves, and died, in 1839, eight year's after the deed bore date, leaving a will, bearing even date with the deed, by which he ratified the deed: Held (1) that, if under the deed any interest in the slaves resulted to the grantor, and through him to his next qf kin, the will amounted to a waiver and abandonment of such interest, and (2) that the will operated to prevent the grantor from re-acquiring title to the slaves under the statute of limitations.</p> <p>Some suggestions upon the question,— when is the dismissal of a prior bill a bar to a second suit”!</p>

<p>Where a sheriff sells land under fi. fas. and executes titles to the bidder, the eldest fi. fas. to which the money, if received by the sheriff, would be applicable, are satisfied to the extent of the bid, although the money be not, in fact, paid to the sheriff, and the plaintiffs in such executions must look to the sheriff; and the facts, that such executions were marked 1 wait orders,1 that the sale had been agreed on between the defendant in execution, who received the amount of the bid, and the purchaser, and was a mere formal sale to perfect the title of the purchaser, and that defendant in execution had sufficient property, at the time, to satisfy all judgments against him, will not exonerate the sheriff from his responsibility.</p> <p>If the defendant in execution himself applies the amount of the bid to the eldest executions according to the priority of their liens, that will excuse the sheriff; but the onus of showing that is upon the sheriff.</p> <p>Where a Chancellor, directing an issue at law, ordered that the depositions of certain witnesses, who had been examined by commission or before the Commissioner, be read on the trial of the issue — held, that an appeal, on the ground that the witnesses were incompetent, would not lie from the act of the law court allowing the depositions to be read, — the appeal should have been from the order of the Chancellor.</p> <p>The principles stated upon which new trials of issues at law will be directed.</p> <p>A witness who, if liable at all, is liable no matter which way the decision goes, is competent,</p> <p>The question was, whether a judgment at law was satisfied, and plaintiff in the judgment died after subpoena served and before his answer was put in: Held, that the answer of the plaintiff in the judgment, to a rule at law to show cause why satisfaction should not be entered on the judgment, could not be read as evidence for his administrator.</p> <p>"Where the issue between creditors is, whether the judgment of one is satisfied, the testimony of the defendant in the judgment is not higher evidence of satisfaction, than that of other witnesses.</p>

<p>S. C., by instrument under her hand and seal, attested by three witnesses, (who subscribed without an attestation clause, and simply after the word “witness,”) and addressed “to all whom it may concern,” gave “in consideration of the natural love and affection which I bear to my grand-children, and others hereinafter men- . tioned, the following pronerty:</p> <p>“ To Josephine and Sarah L., I'give all the interest I have in the estate of Joseph L. — it consisting principally of a bond for the payment of some fourteen or fifteen hundred dollars, secured by a mortgage of nine negroes.</p> <p>“ To Laura and Sarah C., viz: to Laura a feather bed and furniture, one set silver teaspoons, and one silver hoop and chain for scissors, and to Sarah, &c.</p> <p>“ To my daughter P. my wearing apparel and my books.</p> <p>“ To my daughter M. one feather bed and furniture.</p> <p>“ And I hereby appoint S. S. and E. W. trustees to this deed, with the full understanding that the above property does not vest in another of the parties until my death.”</p> <p>Under proceedings in equity to marshal the assets of Joseph L., S. C. purchased some of the mortgaged negroes, and the proceeds of the sale were allowed her on account of the lien of the mortgage; S. C. executed a will, which after her death was admitted to probate, by which she revoked the instrument; the negroes purchased by S. C. went into the possession of defendant as agent of S. C., and, after her death, E. W., as trustee, and the cestuis que trust, Josephine and Sarah L., filed their bill against defendant, without making tire personal representative of S. C. a party, claiming the negroes under the instrument; at the trial the instrument was not produced, and to prove its execution, delivery, loss and contents, O. W.i one of the attesting witnesses, testified, that he saw the instrument executed; that it was subsequently delivered to him by E. W. to be registered — and he referred to the copy on record for its contents; that a day or two before the trial, E. W. told him it was lost, and got him to assist hint to search for it, which search proved ineffectual; Held that plaintiffs were not entitled to recover.</p> <p>Johnston, Ch., doubted whether the instrument was testamentary; heheld, 1st. that the plaintiffs’s remedy, if they had any, was against the personal representative of S. C. for the money collected on the bond; 2d, that the delivery and loss of the instrument were not proved.</p> <p>Wardlaw and Dunkin, CC., held that the instrument was testamentary, and had been revoked; — they thought the delivery and loss sufiiciently proved.</p> <p>Dargan, Ch., doubted whether the instrument was testamentary; he thought the delivery proved prima facie, and held, 1st. that the proof of loss was insufficient; 2d. that plaintiffs’s remedy was against the personal representative oí S. C., and not againstt he defendant.</p>

<p>Under peculiar circumstances, and after a lapse of sixteen years, an injunction, to stay proceedings at law, dissolved, irrespective of any consideration of the merits of the questions at issue between the parties.</p> <p>A claim may be too stale for investigation in a Court of Equity, even where it may not be subject to the bar of the statute of limitations, or to those presumptions which arise from the lapse of twenty years: but a claim will not grow stale, under the action of the Court, and while it is the subject of hot litigation.</p> <p>An assignee of one copartner’s share in the property and assets of the firm is liable, even without notice, to all the equities cf his assignor growing out of the copart-nership : but a decree against the assignee on account of such equities, is a decree in rem, — it operates upon the property assigned, and a fi. fa. cannot be issued upon it against the assignee.</p> <p>Upon demands bearing interest at law, the Court of Equity is, it seems, bound to allow interest: but where the demand does not bear interest at law, interest will or will not be allowed according to the equity of the case.</p> <p>Where there was great delay in prosecuting a claim not bearing interest at law, the Court refused to allow interest.</p> <p>There are but two grounds upon which a petition for a re-hearing will be entertained, (1st.) for error of law apparent on the face of the decree: and any part of the record may be resorted to for the purpose of malting such error manifest: (2) for newly discovered testimony; and this testimony must be important, and must materially vary the case made; it must not be cumulative as to the evidence which was before the court upon the trial; and it must be such as the party petitioning for a re-hearing was not aware of before the trial, and could not by proper diligence and enquiry have discovered.</p> <p>For alleged error of judgment, on the part of the Court, in deciding upon an issue of fact, a petition for a re-hearing will not lie.</p>

Before Dargan, Ch. at Barnwell. Stephen Phillips, on the 17th December, 1815, executed a deed in the following words, to wit, “ Know all men by these presents, that I, Stephen Phillips, of the said State and district, do, of my own free will, and for love to my children, as follows, viz: my daughter, Polly Phillips, I do give unto her, and her future heirs of her body, two negro girls, Darkes and Sealey. I do give unto my daughter, Flower Phillips, one negro boy, named Peter.

Before Dunkin, Ch., at Orangeburg. William Collier, who died in January, 1849, by his last will and testament, bearing date the 10th March, 1846, devised and bequeathed as follows: “ First. I give to my son John’s children, a negro map named Jack. Secondly, I give to my son William’s children, a negro man named Israel. Thirdly, I give to my daughter Margaret, a negro woman named Harriet, and her children. Fourthly, I give to my daughter Sophia, two negroes, Selina and Alfred.

Before Johnston, Ch., at Newberry, July, 1849. Jonathan Davenport, deceased, by his last will and testament, hearing date the 18th May, 1842, devised and bequeathed as follows : “ 1st. It is my will and desire, that all my just debts and funeral expenses be first paid out of the cash on hand, and notes and bonds owing to me at the time of my death ; and, if that fund be not sufficient, then out of the balance of my estate. “ 2d. It is my will, that all the personal property…