Volume 30 — South Carolina Equity Reports

BEFORE DUNKIN, OH., AT EDGEFIELD, JUNE SITTINGS, 1856. James Yeldell, while in Ms last illness, being extremely low and feeble, executed Ms last will and testament, Aug. 15, 1854, tbe 2d and 3d clauses of wMch are as follows: “ 2d. I will and direct that my executors do sell tbe whole of my estate both real and personal upon such reasonable credit as they in their discretion may think best, and after paying all my just debts as above directed, I then give, bequeath and…

BEFORE WARDLAW, OH., AT SUMTER, JUNE SITTINGS, 1856. On tbe 3d May, 1853, tbe complainants, Elias S. Ellis, Mary Ann L., wife of E. Madison Scurry, and ber infant cbild, Edward Scurry, filed their bill against' William H. Woods and E. Madison Scurry, in which they stated, that tbe late Mary Ellis of Williamsburg district, made ber will, on the 20th May, 1850, by which she bequeathed, inter alia, as follows: Item.

<p>By the Act of 1795, a seal is necessary to the magistrate’s certificate of the renunciation of her inheritance, by a married woman ; and where such seal is wanting, the conveyance of the married woman is null and void.</p>

<p>Where a defendant allows the bill to be taken pro confesso, he is subject to the discretion of the Court as to the terms of his defence. The Court may give plaintiff leave to amend and require the defendant to answer the bill as amended during the term, and upon his failure to do so, make a decree against him.</p>

<p>Testator declared as follows, “The property, real or personal, that my three daughters, M. M., N. J., and M. S., may or do receive by this, my will, I hereby settle it on them and the lawful issue of their bodies forever, and I do declare that it shall in no wise be subject the debts of their husbands, in no case whatsoever — Held, to create separate estates in the daughters.</p>

BEFORE JOHNSTON, OH., AT UNION, JUNE, 1856. This bill was filed by a number of the heirs at law and distributees of George L. Smith, deceased, against the executors of his will and John W. Sartar, who had purchased from the executors the plantation of their testator and devisor. The will had been admitted to probate in solemn form of law, after a verdict in the Court of Common Pleas establishing its validity, which verdict had been affirmed by the Law Court of Appeals.

<p>BEFORE -WAEDLAW, OH., AT EDGEFIELD, JUNE, 1855.</p> <p>Every thing necessary to a full understanding of this case is contained in the circuit decree, which is as follows:</p> <p>"Wardlaw, Ch. Allen B. Addison made his will July 21, 1849, and thereby disposed of his estate according to the following scheme:</p> <p>1. He directs that his “just debts, if any, be paid out of the moneys arising out of notes and accounts due” to him.</p> <p>2. He gives to his wife, Patience, during her natural life, ’ the house and lot where he resided and other lands; as much of his household and kitchen furniture as she should wish; a year’s provision for house and farm; and certain slaves and other chattels.</p> <p>3. He gives to his son George A., in absolute fee, certain real and personal estate.</p> <p>4. “ I give injtrust to Dr. Edward J. Mims and George A. Addison, for the sole benefit of my daughter Emeline S. Mims, the wife of Dr. Edward J. Mims, during her natural life, and after her death the child or children or representatives of child or children she may leave, the following property: my plantation on Horn’s Creek, &c., my Bellview tract, &c., my storehouse, &e., and the following negro slaves, &c.”</p> <p>5. “ I give in trust to George A. Addison and Dr. Edward J. Mims, for the sole benefit of my son Joseph A. Addison during his natural life, the following property, that is, my mill place on Shaw’s Creek, &c.: the Allen lot, &c.; that part of the lot I purchased from C. L. Goodwin, &c.; and the following negro slaves, &c.; and the note I hold on said Jos. A. Addison, &c.; and my secretary and book case. But if my said son Jos. A. Addison should die without leaving any child or children or representatives of child or children, in that case my will is, that the above property be equally divided between my son George A. Addison and my daughter Emeline S. Mims, or their children or descendants of child or children, agreeable to the conditions of the 3d and 4th clauses of this will.”</p> <p>6 — 14. He gives certain legacies to his grand-children and step-grand-children.</p> <p>15. “It is my will and desire that after my debts are paid out of the moneys due me that balance and for sale of crop be equally divided between my wife and my three children before named, share and share alike, and after my wife takes what furniture she wants the balance of my [furniture ?] not mentioned be divided equally between my three children before named by lot or sale as they may agree upon.”</p> <p>16. “It is my will and desire that after the death of my wife the property'left Per daring Per natural life be equally divided between my tPree children, agreeable to the conditions of the third, fourth and fifth clauses of this my will — that the negroes, land and lots be appraised and divided by lot, as I do not wish the negroes exposed to sale for division.”</p> <p>17. "I do hereby appoint my wife Patience Addison my executrix, and George A. Addison and Dr. Edward J. Mims, my executors, to this my last will and testament.”</p> <p>The testator died May 24, 1850, and soon afterwards George A. Addison and Dr. Edward J. Mims proved the will and took upon themselves the execution thereof and of the trusts therein declared. The wife and three children named in the will survived the testator, and they would have been the distributees of his estate, if he had died intestate.</p> <p>Joseph A. Addison died intestate November, 1854, leaving a widow Emma L. Addison and a son Allen B., born January 6,1851, entitled to his estate under the statute of distributions: And George A. Addison has become administrator of his goods and credits. '</p> <p>The subject of controversy is the estate given by the will to Joseph A. Addison; and all the parties in interest are regularly before the Court. The estate itself mentioned in fifth clause, has been’ sold by the order of the Court under the proceedings in this case; and the litigation now is as to the proceeds of sale. Beyond the gift for life to said Jos. A., the testator has made no express disposition of the remnant of this estate, except on a contingency which has not happened of the son’s dying without leaving a child or representative of child. There is no gift to the descendants of this son, as in the case of the daughter; nor is there any general residuary clause, for the 15th and 16th clauses of the will include only the property particularly enumerated.</p> <p>. If Joseph A. had died “without leaving any child or children or representatives of child or children,” and a litigation had arisen between the devisees over and those who might claim that the remainder was not disposed of by will, the validity of the gift over might have been reasonably affirmed. The terms describing the contingency on which the estate was to go over would probably be construed in such a controversy to import dying without issue living at the death of the first taker, and not dying without issue generally. The word leave would, of itself, have this restrictive operation on dying without issue as to personalty, and although' not so cogent singly as to realty, (Forth vs. Chapman, 1 P. ¥m. 665; Mazych vs. Vanderhorst, Bail. Eq. 48,) yet when used in connection with other words naturally meaning descendants of the first generation and other issue representing children by the statute of distributions, leave would retain its proper signification and be adequate as to any estate to restrict the failure of issue within the recognized limits of entailment. 2 Jarm. Wills, 113, 114; Mathis vs. Hammond, 6 Rich. Eq. 399. But as Joseph left a child the event upon which the estate was to go over did not occur, and the contingent devisees over take no title. It was the manifest purpose of testator that they should not take so long as descendants representing Joseph were in existence. Andree vs. Ward, 1 Russ. 260.</p> <p>Ho estate, however, is limited to these descendants or any of them by the testator; and authority seems to forbid the raising of an estate by implication in Allen B., the son of Joseph, as a purchaser. Carr vs. Porter, 1 McO. Oh. 78; Me-Lure vs. Young, 3 Rich, Eq. 578 ; 1 Jarm. Wills, 500; 2 Eonb. 62. The case of Green vs. Ward, 1 Russ. 262, is analogous to the present in several points. There a testator bequeathed certain stock to trustees on trust to pay the interest to his son for life, and if he married a woman with a fortune of one thousand pounds to settle the stock upon her and the issue of the marriage; but in case of the son’s decease, leaving no issue of his body lawfully begotten, the testator gave the stock to other persons, and bequeathed the residue of his estate to W. The son married a woman who had not the fortune required by the will, and he died leaving issue of the marriage. Lord Gifford decided that the life estate of the son was not enlarged by implication into a quasi estate tail — that the issue of the marriage took nothing — that the gift over failed — and that the residuary legatee was entitled to the stock after the son’s death. On the point immediately under our consideration, the M. R. says: “If a sum of money is bequeathed to A. B. for life, and if he dies leaving no issue, then to another, that does not raise any implication in favor of the issue of A. B.; though if he dies leaving issue, the gift over does not take effect.” It seems to impute a preposterous intention to a testator to hold that he confines the interest of the first taker to a life estate and gives the estate to the devisee over if there be no child of the first taker, and yet if there be a child gives nothing to the child or its parent. To avoid this incongruity, Sir Thomas Plumer, in Ex parte Rodgers, 2 Mad. 449 (576) raised a gift to children upon a construction seemingly strained. There a testator, who had by his will bequeathed absolutely one thousand pounds to his niece, by a codicil recited his purpose to withdraw the legacy from the disposal of herself and husband, in consequence of her indiscreet marriage, and directed his executors to secure to her the annual interest of the one thousand pounds, independently of her husband, by placing that sum in the public funds in trust for her, she to enjoy the interest or dividends during her natural life ; and at her decease without child or children, the principal and interest to be equally divided among such of her sisters as should be living at her death. The V. 0. felt justified in saying the children of the niece were entitled to the legacy. It will be observed that the estate of the niece absolute by the will is no further restricted by the codicil than by changing it into a trust, and thus preventing herself or her husband from disposing of the capital, which is left to go to her children, if she had any, as her next of kin. This case states some of the doctrines of implication unguardedly; as, that a devise of an estate to B. upon the death of A, gives a life estate to A.; which is not true if A. be a stranger. If my confidence in this case were greater than it is, I could not venture upon its authority to overrule what seems to be the settled doctrine of this State. If the testator here, who died before his son Joseph had a child, had foreseen the state of things existing at the son’s death, it is probable that he would have expressly provided for that state of things. But the Court has no authority to make a will for him, nor to conjecture his intention not expressed, and is limited to the expounding of his will according to the words he has used. Where he designed the issue of his children to take by his gift, as in the case of Mrs. Mims’ children, he has endeavored to express his purpose, and has not left the matter to implication. I am unable to find the grounds upon which an estate must be necessarily implied in favor of the son of Joseph. In my judgment he takes nothing under the will, and can claim only through his father.</p> <p>If the gift over be after an indefinite failure of issue, the estate of the first taker might have been enlarged by implication into a fee conditional in the lands and into an absolute estate in the personalty, as the only mode by which the issue can possibly take benefit. This construction is made to consummate the testator’s intention, that the legatees over shall not enjoy the estate until the whole line of issue of the first taker be extinct; and that those claiming by intestacy shall take nothing where the will can operate. “ Erom the fact of making a will, in the absence of any declaration therein to the contrary, the intention of the testator is manifested to prefer his legatees who can take in any event to those whom the law appoints to the succession in the absence of a will.” 6 Rich. Eq. 400. In some early cases (as in Bampfield vs. Pojpham, 1 P. Wm. 54,) it was held, that implication was never to be made in contradiction of an express limitation, and consequently that an express estate for life could not be enlarged into an estate tail by implication, but this view has been overruled in numerous cases, and now an estate tail is implied in the first taker from words devising the estate over if he die without issue, although the devise to him be expressly for life. Langley vs. Baldwin, 1 P. Wms. 759; Stanley vs. Leonard, 1 Eden. 87; Atty, Gen. vs. Sutton, 8 Br. P. C. 75; Bean vs. Halley, 8 T. R. 5. In Knight vs. Bilis, 2 Br. G. 0. 578, (which is recognised on this point in Carr vs. Porter, 1 McC. Oh. 75,) Lord Thurlow puts the case of a devise to A. for life and after the failure of his issue to B., and proceeds: “ What is the Court to do ? It is clear that a life interest only is given to A. It is clear that no benefit is given to B. while there is any issue of A. The consequence is, that as no interest springs to B. and no express estate is given after the death of A., the intermediate interest must be undisposed of, unless A. be considered as taking for the benefit of his issue as well as of himself; and as the words in this case are capable of such amplification, the Court naturally implies an intention in the testator that A. 'should so take, that the property might be transmissible through him to his issue, and he is therefore considered as taking an estate tail, which would descend on his issue. How an estate in chattels is not transmissible to the issue in the same manner as real estate, nor capable of any kind of descent; and therefore an estate in chattels so given, from the necessity of the thing, gives the whole interest to the first taker; but if the testator gives the fund expressly to the issue,” there is no room for implication and they take as purchasers. The same observations are repeated in substance in Atty. Gen. vs. Bayley, 2 Br. 0. C. 558. In Simmons vs. Simmons, 8 Sim. 22 (11 E. C. C. 303,) testator gave all his real and personal estate in trust for the separate use of his daughter- for life; “ at her decease she shall be at liberty to will the same to her issue, as she may think fit; but in case of her dying without issue, I wish the property to go to my dear brother and sister Gr. and A. for their natural lives share and share alike: In the event of my brother G’s death, pripr to the death of my daughter, then to the children of said G. share and share alike.”- .V. 0. Shad-well held that the daughter took an estate tail in the lands and an absolute interest in the personalty disposed of in same clause. In Machell vs. Weeding, 8 Sim. 4, (11 E. 0. 0. 296,) the devise was to testator’s son J. for life, “but if he shall die without issue, not leaving any children,” then land to be sold and the proceeds divided among three other sons, and if any of them should die before J. their shares to be divided among their children. Sir L. Shadwell interpreted, “ die without issue, not leaving any children,” as descriptive merely of dying without issue, and held that J. took an estate tail. He said, “I consider it to be a settled point, that whether an estate be given in fee or for life or generally, without any particular limit as to its duration, if it be followed by a devise over in case of the devisee dying without issue, the devisee will take an estate tail.”</p> <p>In his treatise on "Wills, 1 vol. 490, Mr. Jarman says, “ where the devise over is to take effect on the event of the prior devisee dying without issue, living at his death, it has no effect in enlarging the prior estate for life into an estate tail, (Lethuanllier vs. Tracy, 3 Atk. 793,) as the event described is not that by which an estate tail is necessarily extinguished, for such an estate determines on the failure of issue at any time. The only question in such case would be whether the words would raise an estate by implication in the issue living at the death.” In the case of Green vs. Ward, above cited, Lord Gifford says: “ When a bequest is to A. B. for life, and on failure of his issue generally remainder over, it has been held that A. B. will take an estate tail; but that is altogether different from a case in which the property is given to A. B. for life with a limitation over, in case he should die without leaving issue at the time of his death: and I have been unable to find any instance in "which, a bequest like that which I have mentioned, has been held to give A. B. an estate tail. The gift over is valid, but there is no estate tail in the first taker.”</p> <p>It follows, 'that if in this litigation we must construe the words of the will describing the event on which the estate was to go over as equivalent to dying without issue living at the death of Joseph, his life estate cannot be enlarged by implication. The consequence would be, in the event which has happened of the primary legatee’s leaving issue, that the property is undisposed of, as it cannot go to himself, his issue, or the ulterior legatees; and that the testator has miscarried in the attempt to dispose of his whole estate. In the case of Green vs. Ward, above mentioned, the clause in dispute disposed of personalty only; the will contained a general residuary clause, and the contest was between the issue of the first taker and the residuary legatee; in this case, the will disposes of real and personal estate together by the same terms in one clause, and it has no general residuary clause, and the contest is between a legatee and those who claim independently of the will. I have already expressed the opinion that the words of the gift over here might have been construed, if the event had been different, to pass the estate to the ulterior legatees; but no intimation has been given that» this must be the inflexible construction of the words, where the effect would be to pass the estate from all the express objects of testator’s bounty. Ye may look to the state of things at the making of the will to ascertain the intention of the testator, and, although with much caution (2 Jarm. 71,) to subsequent events as exhibiting what was probable and probably contemplated by the testator, at the time of devise; and we may give to the same words different interpretations under different circumstances in fulfilment of the same general intention of the testator. Schoppert vs. Gillam, 6 Rich. Eq. 35. In Stone vs. Maulé, 2 E. C. R. 513, Sir L. Sbadwell, in discussing tbe effect of the words, without having any child or children seems to admit that the construction of them is flexible. “ Why am I to put a construction on these words which they do not strictly bear, for the purpose of defeating the intention of testator ? The question is not what is the effect of words creating an estate tail, but of words making a gift over.” In Pachham vs. Gregory, 4 Hare, 396, Sir J. Wigram remarks, “the consequence of disinheriting issue is one ground on which the Court seeks, if it can, to avoid a construction attended with it.” Grandchildren are permitted to take under a ¿Revise to children where there are no children, but not if there be children. Drayton vs. Drayton, 1 Des. 331; Deveaux vs. Bamioell, lb. 499; Smith's case, 2 Des. 123 n; Puff v. Rutherford, Bail. Eq. 9. The word children is ordinarily a word of purchase, but is not unfrequently a word of limitation. Johnson vs. Johnson, McMul. Eq. 345, where land and slaves were given to M. and her children: after her, by the same clause, is a strong instance. If land be devised to A. and his children, and he has no children at the time of the devise, he takes an estate tail. Wild's case, 6 Co. 17; Reeder vs. Spearman, 6 Eich. Eq. 92. In Wood vs. Baron, 1 East, 239, under a devise of testator’s whole estate, real and personal, to his daughter A., “ who shall hold and enjoy the same as a place of inheritance to her and her children or her issue forever, and if she should die leaving no child or children, or if her children should die without issue,” then over; the Court of King’s Bench held that A. took an estate tail, though she had issue at the time of the devise and of the testator’s death. In Doe vs. Wubher, 1 Barn, and Aid. 713, Lord Ellenborough discussing the effect of the words in the gift over “ die and leave no child or children,” disclaimed any stress on the word children as distinguished, from issue, as where the intent required it, it had been held to include all descendants, mediate and immediate. In Raggett vs. Beaty, 2 Moo. and Pay. 512, testator devised a messuage to G., and in case be should die and leave no child lawfully begotten of his body, then over, and it was held G. took an estate tail. The same construction of the words, “die without leaving any child or children,” was adopted in Blesard vs. Simpson, 42 E. C. L. K. 483, which was an express case of fee conditional. See also By field? s case cited in King vs. Snelling, 1 Vent. 231; Sonday's case, 9 Go. 127 ; Robinson vs. Robinson, 1 Bur. 38; 3 Br. P. 0. 180, Dansey vs. Griffiths; 4 Man. & S. 62, Maclcell vs. Weeding, Simmons vs. Simmons, supra. These cases seem to justify the Court in ruling that the words employed in the gift over here, have the effect of giving to Joseph the immediate donee an estate in fee conditional in the lands, which estate has been in England converted into an estate tail by the statute de donis not of force with us. The result of my opinion on this point is, that Allen B. son of Joseph takes the land by descent, according to the form of the gift, subject of course to any charges and incumbrances thereon created by his father. Izard vs. Izard, Bail. Eq. 228.</p> <p>Where personal estate is bequeathed in language which' if applied to real estate would create an estate tail either expressly or by implication, it vests absolutely in the first taker. Garth vs. Baldwin, 2 Ves. Sen. 646 ; Henry vs. Felder, 2 McO. Oh. 323. This rule is subject to an exception in estates tail by implication, where the words expressing failure of issue, receive different construction, as is the ease with the word leave, in reference to real and personal estate. Lord Thurlow in Bigge vs. Bensley, 1 B. O. 0. 187, Lord Kenyon in Porter vs. Bradley, 3 D. & E. 146, and Attorney General Bailey in a note to Mazych vs. Vanderhorst, have questioned the soundness of the distinction as to the force of the term leave, when applied to real or personal estate, but it is firmly established. Here however the question is between giving some effect to the will and declaring an intestacy; and the personal estate is disposed of in the same clause with the lands. Lord Eldon said in Genery vs. Fitzgerald, Jac. 468, (2 E. C. E. 218,) “ when personal estate is given to A. at twenty-one, that will carry the intermediate interest; if real estate be given at a future period that will not carry the intermediate profits; but when a testator mixes up real and personal estate in the same clause, the question must be whether he does not show an intention that the same rule shall operate on both ” and he decreed that rents as well as interest passed. The same doctrine was even inore authoritatively declared after much discussion and conflicting decisions, in Ackers vs. Phipps, 9 Bligh N. S. 481. See also Johnson vs. Johnson, McMul. Eq. 345; Gibson vs. Mountford, 1 Yes. S. 490; Glan-ville vs. Glanville, 2 Meri. 28; Simmms vs. Simmons, 11 E. C. E. 303. The words leaving issue do not necessarily import issue living at the death, or they would have that meaning when applied to real estate; and I conclude, in prevention of intestacy, not to allow to them in this case the effect of impairing an implication of an absolute estate in the personalty in the first taker. My judgment is that the personal estate given primarily to Joseph A. Addison is distributable, after the payment of-his debts, one-third to his widow and two-thirds to his son.</p> <p>The estate real and personal given to Joseph A. Addison, after the death of his mother is governed by the same principles as the estate immediately given to him.</p> <p>I am not quite firm in the conclusions announced in this opinion, and I desire that the parties take the judgment of the Court of Appeals.</p> <p>Let this opinion stand for a decree, with leave to the parties to apply at the foot Lor further orders in execution thereof.</p> <p>George A. Addison and others appealed and moved this Court to reverse the Circuit decree.</p> <p>Because his Honor erred in ruling that Joseph A. Addison took a fee conditional in the realty, and an absolute estate in personalty, under the will of his father, Allen B. Addison. Whereas, it is respectfully submitted, that the said Joseph A. only took a life estate under the said will, and the remainder undisposed of, is distributable among the heirs of the said Allen B., as estate of which he died intestáte.</p> <p>Allen B. Addison also appealed on the grounds:</p> <p>That the decree is contrary to the intention of the testator, whose purpose was, to make a gift to the child or children of his son Joseph A. Addison, of all the property devised and bequeathed to the latter, and to exclude altogether from any portion of the said estate, the defendant, Emma L. Addison.</p> <p>The defendant, Emma L. Addison, appealed on the ground:</p> <p>That under the will of Allen B. Addison, deceased, his son. Joseph A. Addison, took in the lands thereby devised to him an estate in fee simple absolute, and not an estate in fee simple conditional.</p>

<p>Where an executor is indebted to the testator upon notes, such notes are considered as paid as soon as they fall due, and the executor is entitled to commissions upon them as for so much money received.</p> <p>Where there are mutually subsisting demands between the executor and testator due at the same time, it is only upon any balance due testator that commissions can be charged by the executor. Where, however, the debts fall due at different times during the period of administration the rule is, it seems, different.</p> <p>An executor is entitled to commissions upon a debt due by himself to his testator.</p> <p>Where at the death of an executor there is abalance due upon his accounts as executor, his administrator, on making a settlement with the surviving executor, cannot charge commissions, for the benefit of the estate of the deceased executor, upon that balance or upon interest which has accrued thereon.</p> <p>Where an agent sells property, and afterwards qualifies as executor of the will of his principal, he cannot charge commissions upon tire sales. Upon a balance due by an executor at his death, interest will not be charged until there is some one authorized to receive it.</p>

<p>In pursuance of an ante-nuptial agreement, husband and wife conveyed certain personalty to a trustee for the separate use of wife; and, on certain contingencies, at her death for her issue, and agreed that a certain tract of land should be settled upop. the same trusts, and in the meantime that they should have puerto sell the'áá&ie, and lay out the proceeds on the same trusts a/s were the‘i>eiii;’^ec|afM_ concerning the persbnalty. Husband afterwhrds sold the land ancfjreceived the purchase money, though the titlejV4s';tná'd§’¡by*th$;,trustee: — Held, that husband was an express trustee to ro-invest, or atíány rate bailee of the proceeds and agent to re-invest, and in neither capacity was entitled to the protection of the statute of liihitatidn's agaiinst the claim of the issue.</p>

<p>BEFORE JOHNSTON, OH., AT MARION, FEBRUARY, 1855.</p> <p>JOHNSTON, Ch. Tbe question submitted to mein tbiscase, arises out of tbe following circumstances: Bichard J. Scarborough, having executed bis will, tbe day of , 1853, died tbe 9th September, 1854, leaving a widow, and a sister, tbe wife of James J. Harllee, as bis only next of kin. His will is in the following terms:</p> <p>“ 1. I direct all my just debts to be paid.</p> <p>“ 2. If I shall leave a child, or children, or tbe issue of a child or children, surviving me, I order and direct tbe following disposition, of my whole estate, to wit: Tbe sum of five hundred dollars to be paid annually to my wife Susannah J. Scarborough, during her natural life, provided she shall remain a widow. The rest and residue of my estate to descend to, and vest absolutely in any child, or children, &c., &c.</p> <p>“ 3. If at the time of my decease, I shall leave no child, or children, or their issue surviving me, (as provided in the second clause of this my will,) then I order and direct my whole estate, after the payment of my just debts, to be equally divided among and between the following persons, to wit: my wife, Susannah. J. Scarborough, David S. Henry, John H. "Walsh, Addison Walsh and Sarah Walsh,” &c.</p> <p>After the execution of his will, the testator purchased real estate, described in the pleadings, but having never republished the will, he died intestate as to this property. All the other property left by him was personal, and is covered by this will, and as he left no issue, it passes to the legatees named in the third clause.</p> <p>The testator left debts behind him, and among others, a mortgage for the price of the after-acquired real estate; and the question is presented, whether these debts are chargeable upon this real estate, to the loss of the next of kin, on whom it descends, or upon the personal estate covered by the will, to the loss of the legatees who take under the will. This is the only question now submitted for judgment.</p> <p>When a testator disposes of a mixed estate in general terms, subject to, or charged with debts, the doctrine may be admitted that all portions are equally liable to the burden, whether real or personal, — a modification may arise from the context of the will, and the relative rank of the legatees and devisees.</p> <p>This doctrine applies obviously only so far as the estate is covered by the will, and not to cases where part of the property is intestate. In such cases, the liability for debts is determined generally against the intestate to the exoneration of the testamentary property.</p> <p>Perhaps this doctrine may be deflected by a very strong context, manifesting explicitly a purpose to exonerate the intestate estate, and confine the debts to the testate. But if we examine this will, there is not enough in it for this purpose. '</p> <p>The testator’s first direction is, that his debts be paid. He then directs the division of his estate. This is no more than the injunction of the law, and does not modify it, and is sur-plusage.</p> <p>In the second clause there is no expression postponing the legacies to tbe debts, wbicb shows that tbe testator bad no settled purpose on tbe subject.</p> <p>Tbis observation should be carried in tbe mind in perusing tbe third clause, wbicb is tbe one that has taken effect. In that clause, be directs tbe division of bis whole estate, “ after tbe payment of bis debts.” But in addition to tbe previous remark (arising from tbe second clause), that tbe testator seems to have bad no settled purpose in using these words, I have only to repeat, they do not modify tbe general law on tbe subject, and are mere surplusage. Certainly they express no intention to exonerate tbe real estate, and therefore do not repeal tbe legal rule wbicb generally applies.</p> <p>Can any implication of an intention to exonerate specific property arise from tbis will or in tbis case ? Tbe real estate for wbicb tbe exemption is claimed is intestate, only because it did not belong to tbe testator when be dictated bis will, and was acquired afterwards. How can we imply tbe existence of any intention to exonerate, or indeed, any other intention in tbe mind of a testator, respecting property not existing in him at tbe time.</p> <p>If tbis testator bad, by bis will, confined its operation to tbe property owned By him on tbe specific day be executed it, giving that property, after payment of bis debts, to A. or B., and bad afterwards acquired personalty, as to wbicb be died intestate, would tbis personalty be exempted from debts to tbe disparagement of tbe legatees ? I presume- tbis will not be contended for, and yet tbe principle involved must be tbe same, when tbe after-acquisition is realty, as if it bad been personalty. Intestate property cannot be exonerated from its comparative liability, except by an intention expressed, not only to charge tbe testate property with tbe debts, but to charge it thus with an intention to exonerate tbe intestate, and such an intention is equally requisite, whether tbe latter be real or personal.</p> <p>In what I have said hitherto, I have not deemed it necessary to remark upon tbe relative liability between intestate real and intestate personal property. As between these two classes, tbe primary liability is on tbe personal.</p> <p>Nor have I remarked upon tbe exemption, wbicb real estate, although intestate, may be entitled to, in cases where tbe legacies are of a certain rank, as, for instance, residuary.</p> <p>On this subject I understand tbe counsel desire to carry up tbe case, with a view of examining Warley vs. Warley, (Bailey Eq. 397) and two other cases (2 Rich. Eq. 270 and 3 Strob. Eq. 24) — and I purposely abstain here from any remark on those cases.</p> <p>That case subjects descended real estate, in exoneration of specific legacies. I take tbe third clause of the will to be specific. If" tbe whole estate bad been given to a single legatee, according to Warley vs. Warley it would have'been specific. Or if one half bad been given to one, and tbe rest (not designating it as tbe other half) to another, I presume each of tbe two would have taken legacies of tbe same rank, both specific.</p> <p>Residuary legacies are not such on account of tbe term “residuary,” or “rest” and “residue;” but from tbe nature of tbe thing conveyed. A specific legacy is not liable to be increased or diminished, by tbe operation of any other legacy, except one of tbe same character. An abatement may arise from such a source. But tbe nature" of a residuary legacy is, that its amount is floating and contingent, and it can only'be determined by first taking out legacies of a superior degree.</p> <p>In this case, tbe whole estate is given to tbe legatees; and tbe division of it among them does not degrade tbe legacy below tbe rank it would have held, if it bad been given to one of them.</p> <p>It is adjudged and declared, that tbe after-acquired real estate, referred to in tbe pleadings, and to wbicb I have hitherto bad reference, is primarily liable for tbe debts of tbe testator.</p> <p>When tbe debts are ascertained (tbe creditors may be called in) an inquiry may be made, witb tbe view of setting apart a fund to pay tbern, and upon a report being made, an order can be applied for.</p> <p>Tbe defendants, Susannah J. Scarborough and James J. Harllee and wife Mary E., appealed, and moved to reverse tbe decree on tbe ground:</p> <p>That bis Honor has, in bis said decreej adjudged that tbe descended real estate, referred to in tbe pleadings, is primarily liable for tbe debts of tbe testator. Whereas, it is respectfully submitted, tbe property bequeathed in tbe will, being, by tbe terms thereof, charged witb tbe payment of all tbe testator’s debts, is tbe primary fund for this purpose, and tbe descended real estate should have been adjudged to be exempted, until this primary fund shall have been exhausted.</p> <p>The testator’s whole personal estate passes under tbe dispositions of bis will — tbe real estate, all, of which was acquired after tbe execution of tbe will, descends. Tbe inquiry is, what is tbe primary fund for tbe payment of tbe testator’s debts, including the debt contracted in tbe purchase of tbe real estate and secured by a mortgage of tbe same? Tbe language of tbe will is,'“I order and direct my whole estate, after tbe payment of my just debts, to be equally divided among and between tbe following persons,” &c.</p> <p>1. Although, under our law, all the property of a deceased person is equally liable for the payment of all bis debts, as between bis creditors and those entitled to tbe succession, yet as among those entitled to tbe succession themselves, this is not so: on tbe contrary, as a general rule, tbe personal estate is still tbe primary fund for the payment of debts. Hull vs. Hull, 3 Rich. Eq. 65 ; North vs. Valle, Dud. Eq. 212.</p> <p>2. A testator may exempt tbe whole or any part of bis personalty, from tbis primary liability, tbe intention to do so being clearly manifested,' either impliedly, as by specifically bequeathing it, and leaving other property not so specifically disposed of, or expressly, by “ charging,” his debts upon some other portion of his estate. 1 Story’s Eq. Jur., sec. 571-3,</p> <p>3. In the case now before the Court, the personal estate is not specifically bequeathed, and therefore, the operation of the general rule is not, in this way set aside.</p> <p>The distinction is between general and specific, not residuary and specific. A residuary bequest may be specific. Williams on Executors, 993; lb. 1006; 1 Roper on Legacies 192, note*; lb. 242.</p> <p>“A legacy is specific when it is a bequest of a specified part of the testator’s personal estate, which is so distinguished.” 2 Will. Ex’ors, 993.</p> <p>“ The bequest of a particular thing or money specified and distinguished from all others of the same kind, as of a horse, a piece of plate, stock in the public funds, a security for money, which would immediately vest with the assent of the executor.” 1 Rop. Leg. 192.</p> <p>“The principle of decision is, the severance of this particular property from the great body of the estate, and the specific gift of it to the legatee.” “ It is capable of being-delivered in specie.” 1 Rop. Leg. 242-3.</p> <p>“ The bequest of all a man’s personal estate generally is not specific, the very terms of such a disposition demonstrate its generality.” 2 Wins. Ex’ors. 1006. “Since then a bequest of personal estate requires, as before mentioned, to be limited or controlled to some particular place, or to be referred to as in some person’s hands, in order to make it specific, it follows, that if there be no such restrictive expressions, a legacy of personal estate, generally, will be general and not specific. 1 Rop. Leg. 243 ; Howe vs. Lord Dartmouth, 7 Yes. 147; Warley vs. Warley, Bail. Eq. 409; Morion vs. Thompson, 6 Bich. Eq. 370.</p> <p>The criterion of a specific legacy is, that it is liable to ademption. Coleman vs. Coleman, 2 Yes. 639, Summer’s edit. Editor’s note 1, at the end of the case. But see 2 Vms. Ex’ors, 995 and 1001, how far this is qualified by subsequent cases. It seems to be still true as the general rule, subject only to the exception, that the testator may, by express terms or the form of the gift, protect it from ademption, as a bequest of “all of a certain stock which testator shall have at his death.”</p> <p>“ Courts lean against construing legacies specific, and the intention with reference to the thing bequeathed must be clear.” 1 Bop. Leg. 193 ; 2 Will. Ex’ors, 995; Chaworth vs. Beech, 4 Yes. 563 ; Junes vs. Johnson, lb. 573.</p> <p>“No legacy is to be held specific, unless demonstrably so intended.” Kirby vs. Potter, 4 Yes. 750; Burton vs. Coolce, 5 Yes. 463; Webster vs. Hale, 8 Yes. 410; Cogdell vs. Cogdell, 3 Dess. 372.</p> <p>4. But further, there is not here any charge of the debts on any other part of the estate; on the contrary, they are charged directly upon the bequeathed personalty.</p> <p>To “ charge ” the real estate in England, or to direct it to be sold for payment of debts, is only to bring it to the aid of the personalty. Why? The personalty is the primary fund, the realty is not liable for the debts generally, the debtor can make it so, his doing so is necessary in order to provide for the payment of debts. This is an occasion for his interference and it does not therefore, of itself, import more than that the debts shall not go unpaid, and that if the fund, primarily subjected by the law, fail, the realty shall make up the deficiency. To substitute it for the primary fund requires more, requires evidence of testator’s intention to discharge the personalty, tbe primary fund. This results from the favor their law has to the heir.</p> <p>But this rule has no application here, even for the protection of the real estate, because the reasons have no place here. There is no heir to favor, real and personal estate are distributed alike, there is no landed aristocracy to build up; real estate is already liable to satisfy creditors; to charge it, is either unmeaning, or else it imports the making it a ‘primary fund.</p> <p>How much less can any such exclusion of the liability of realty be required in order to constitute the debts a charge upon the personalty. Any words which direct property to be applied to payment of debts, or, in any manner charge debts upon it, must be held to constitute such property the primary fund. Pinclcney vs. Pinclcney, 2 Rich. Eq. 234, 243; Warley vs. Warley, Bail. Eq. 397.</p> <p>The words, “after the payment of my debts,” constitute a charge, even on'real estate. Thus, 1 Jarm. Wills, 743, “A devise, after payment of debts, is considered as creating a charge, not as importing postponement.” Hall vs. Hall, 2 McC. Oh. 303; Warley vs. Warley, Bail. Eq. 409; Ford vs. Gaither, 2 Rich. Eq. 270; Laurens vs. Lucas, 6 Rich. Eq. 223.</p> <p>The case of Broiun vs. James, 3 Strob. 24, commented on. In the bequest to McBride, the particulars intended to be embraced in the general terms, “all my personal property,” are specifically named and enumerated, &c.</p>

BEFORE JOHNSTON, OH., AT FAIRFIELD, JOLT, 1856. The decree of his Honor, the circuit Chancellor, is as follows: Johnston, Ch. This case comes up for hearing upon hill and answer. The subject of litigation is a family of slaves; and it is admitted in the answer, that the plaintiffs are entitled to a distributive share of this family, unless the paper filed as an exhibit vests the title to them in the defendant, Cuthbert Harrison.

<p>Where a wife has an expectant interest in chattels, no act of the husband, or of any third person, in vesting' the husband, or the wife, or both, with the present, or particular estate, will operate to vest the future or expectant interest of the wife in the husband ; 'and it makes no difference whether such future or expectant interest is vested or contingent, legal or equitable. The husband can only acquire the expectant interest of the wife by application to the Court.</p> <p>D. 0., executed a deed, by which, in consideration of natural love and affection, he conveyed to his daughter, M. L., a minor, certain negroes, with a proviso that he be permitted to use and enjoy, during life, the ’ labor, profits and emoluments of said negroes. M. L , shortly after-wards married, and then after giving birth to a child died — her father D. 0., surviving her. Before M. L’s., death the negroes went into her husband’s possession by consent of D. 0., and remained in his possession until D. 0., died, when the child filed a bill against the husband claiming partition : — -Held,</p> <p>That, under the deed, M. L’s. interest was in remainder after a life estate in D. C.</p> <p>That notwithstanding any surrender of his life estate by 1). C., during the coverture, the marital right of her husband did not attach on M. L’s. expectant interest, and consequently that the negroes were liable to partition as the estate of M. L.</p>

BEFORE DUNKIN, OH., AT EDGEFIELD, JUNE SITTINGS, 1856. Dunkin, Ch. From tbe decree made in tbis cause, June 1855, an appeal was taken by both, parties. The appeal on the part of the plaintiffs was dismissed.

BEFORE DARGAN, CH., AT CHARLESTON, JUNE, 1856. Dargan, Ch. Tbe Vestry and Cburcb Wardens of tbe Episcopal Cbnrcb in tbe Parish of Christ Cbnrcb, were incorporated by an Act of tbe Legislature, passed in 1787.

BEFORE DARGAN, OH., AT CHARLESTON, JUNE, 1856. Daegan, Ch. Tbe Calhoun Loan and Building Association is a corporate body, and Edwin Welling, one of its members, on tbe 17tb day of April, A. D. 1853, executed to tbe said Association a bond, conditioned for tbe payment of five thousand dollars, in instalments, and to secure tbe payment thereof, executed a mortgage of a lot in tbe city of Charleston, at tbe corner of Beaufain and Butledge-streets.

BEFORE WARDLAW, OH., AT CHARLESTON, JUNE SITTINGS, 1853. Wakdlaw, Oh. Held: and became guardian of his children, and immediately filed his bill to enjoin the action which Mrs. Wood, the trustee, had commenced against him; and his answer to the interrogatories filed in the Master’s office, shows that he took the guardianship for the very purpose of getting his children’s money into his hands, and using it as…

BEFORE DAR,GAN, OH., AT CHARLESTON, JUNE, 1856. DaRGAN, Oh. George A. 0. Rivers died 6tli of August 1840, leaving unrevoked his -will, 'which is- in the following words: “I wish the two hundred acres of land purchased from Mr. Benjamin Reynolds, reserved during the natural life-time of my beloved wife, as a residence for her, and any of my daughters who may remain single.

BEFORE DARGAN, CH„ AT CHARLESTON, JUNE SITTINGS, 1856. Dargan, Oh.

<p>The intention of a testatrix, as to the meaning and effect of her codicil, cannot be shown by the oral testimony of the person who drew it. Testatrix made her will, by which she devised her residence to her niece, 0., in fee; and the residue of her estate she devised and bequeathed to her niece, 0., and her great nephews, W. and B., in fee, “ to be equally divided among them, share and share alike.” 0. afterwards died, and then testatrix made her codicil, by which she devised her residence to W. and B. :• — Held, that O.’s share in the residue lapsed, and did not pass to W. and B.</p> <p>Where there is a devise or bequest to two or more, as tenants in common, whether it be specific or of the residue, the share of one who dies before the testator lapses, and does not pass to the surviving tenants in common.</p>

<p>By marriage settlement, the intended wife’s property was limited to her separate use for life, and after the death of the said J. H., the intended wife, then to the use of her four children (she being a widow) by name, “ and also of the issue of the said J. H. by her intended husband, who shall be alive at the time of the death of the said J. H., and who shall live to attain the several and respective ages of twenty-one years, or days of marriage; to hold the said trust estate, upon the attaining the said ages or days of marriage, to such children and issue, if more than one, to them, &c., forever. But in case the said J. H. shall happen to die without leaving either of the above-named children and issue, &c., or such children and issue should all die in minority and unmarried, then upon the death of the said J. H.,” over, &c.: — Held, that the interests of all the remainder men, the children named, as well as the issue, were contingent, and depended not only upon their coming of age or marrying, but also upon their surviving J. H.</p> <p>Where the bill is dismissed as to the plaintiffs, they being entitled to no relief, the Court will not decree between the defendants.</p>

<p>The individual creditors of a partner have not such exclusive right to he paid out of his individual property, as to render fraudulent an assignment of it for the benefit of the creditors of the firm. Semble.</p> <p>Partnership creditors having two funds — the property of the firm and the private property of the partners — to which they can resort, and individual creditors of the partners having but one — the private property of the debtor (including any balance which may remain to him from the firm, after its affairs are settled) — such individual creditors have an equity to compel the partnership creditors to resort first to the partnership assets; but after they are exhausted, the partnership creditors have as good right to be paid out of the private property of a partner as his individual creditors.</p> <p>Where a debtor, assigning for the benefit of his creditors, includes but a part of his property, a clause in the assignment, exacting a release from the creditor as a condition of his receiving benefit, is fraudulent, and vitiates the assignment.</p> <p>Where one partner assigns, a clause requiring creditors to release to the firm, as well as to himself, is, it seems, unfair and unjust to the creditors.</p>

<p>Where the Court of Equity'orders an action at law, an appeal lies from the decision‘of. the Circuit Court at Law to the Law Court of Appeals.</p> <p>Where an issue is ordered, no appeal lies from the decision at law to any Court; but, on the return of the issue to the Court from which it emanated, a motion may be made for another issue, or for a new trial.</p> <p>Where the question is, whether a purchaser is bound to accept the titles, it is not requisite to order an action at law.</p> <p>Where a testator directed his debts to be paid out of monies due him ; “ but in case my creditors will not wait a reasonable time, to allow my executors to collect my debts, or to raise the sums I owe from the income of my estate, that then, and in such case, I empower my executors to sell and dispose of such part of my estate, real and personal, as they shall think most to the advantage of my estate — Held, that the power was conditional, and could not be exercised unless the necessity therefor existed.</p> <p>The testator died in 1787, and, in 1798, the executors conveyed his land, but made no reference, in the conveyance, to the power. More than fifty years afterwards,-it was submitted to the jury to determine whether the condition had been performed, and their verdict, that it had not, was not disturbed.</p>

This cause was first beard by Johnston, Cb., at Colleton February, 1856. Tbe following is tbe decree then pronounced, by bis Honor. Johnston, Ch. This is a bill brought by colored persons formerly slaves of tbe late James W. Monk, against tbe executrix of Dr. Coteswortb Pinckney, to enforce a trust undertaken by bim for tbeir benefit. On tbe 8tb of November, 1830, James W. Monk, duly executed a deed, by which, reserving a life estate to himself, be conveyed to Ur.

BEFORE WARDLAW, OH., AT FAIRFIELD, JULY, 1855. ■Wardlaw, Ch. This is a creditors’ bill whereby the plaintiffs seek to subject to the payment of their demands the distributive share of the defendant, Christina W. Eaust, in the estate of her father, the late Dr. William Bratton, who died intestate on the 1st December, 1850. The defendant Christina, intermarried on the 12th April, 1887, with Clement 0. Eaust, in .this State.

<p>An instrument in form a deed, but using the word “ bequeath” in addition to “ give, -'grant, deed, bargain, and sell,” by -which the donor conveyed certain slaves to his son, J. H., to have and to hold them absolutely, with a proviso, (I) that the donor should “ keep and enjoy the use” for life, and (2) that if J. H. “ die without leaving issue, or in minority, then one half to go to the lawful issue of .A. Y., and L. Y., the other half to the children of my brothers,” held, to be a deed and not a will. The limitation to the lawful issue of A. V., and L. Y., and to the children of brothers, held, good — the issue and children living at the death of J. H., being the parties entitled.</p> <p>J. H., was a minor living with his father when the deed was executed, and it was recorded two days afterwards in the Register’s office : — Held, that this was sufficient proof of delivery.</p> <p>"Where the first taker’s estate is defeasible upon an event upon the happening of which the estate is to go over to others, a delivery of the r deed to the first taker is sufficient for all who take interest under it. Where the deed declares that in a certain event the property shpll “ go to” others, this is a sufficient conveyance to them upon the happening of the event.</p>

<p>Bill for account will lie in this State, against a guardian appointed in North Carolina, and his surety, they having removed to this State. "Without legal authority from a Court of competent jurisdiction, a guardian cannot sell the property of his ward ; and to any application to a Court for such authority, the ward is a necessary party.</p> <p>A guardian, appointed in North Carolina, filed an ex parte petition, in his own name, in the proper Court of that State, for leave to sell his wards’ negroes. Leave was granted, and the sale made. On bill afterwards filed in this State, against the guardian and his surety for account, held, in the absence of proof that the proceeding for leave to sell, in the name of the guardian alone, was proper according to the law of North Carolina, that the wards were not bound by the order for sale, and that the guardian was liable to account for the full and true value of the negroes.</p>

<p>H. Gr. being member of a firm, removed from the State, and, after his removal, the creditors of the firm brought suits against it, making H. G-. a party under the Act of 1792. Judgments were recovered, but the partnership and the members in this State being insolvent, the ji. fas. were returned nulla bona: — Held, that the creditors of the firm might file a bill to subject to their claims certain funds in the hands of administrators and the Commissioner in Equity, to which H. G-. was entitled as a distributee, and also certain other funds in the hands of his attorney in fact.</p> <p>Where an absent debtor is entitled as distributee to funds in the hands of an administrator or the Commissioner in Equity, as such funds cannot be reached by process at law, a bill in equity will lie to subject them to the claims of his creditors.</p> <p>Where one of several members of a firm removes from the State, equity has jurisdiction to subject his individual estate to the claims of the creditors of the firm — such estate not being bound by any judgment at law which the creditors might recover against the firm.</p> <p>Where a bill is filed to subject the estate of an absent debtor to the claims of his creditors, all the creditors should be called in by notice.</p>

BEFOSE JOHNSTON, OH., AT LANCASTER, JUNE, 1856. Tbe facts of this case are stated in tbe opinion delivered in tbe Court of Appeals. Tbe Circuit decree is as follows: Johnston, Ch. This cause was beard on tbe Commissioner’s report,' and exceptions thereto on tbe part of tbe plaintiff, and tbe defendant, J. M. Crockett, and on tbe general equities of tbe parties wbicb bad been reserved.

BEFORE DARGAN, CH., AT MARION, FEBRUARY, 1857. -'This case came before the Court on exceptions to the report of the Commissioner, under… Held: “ When the captain of a boat uses a slave as a boat hand without the consent of the master, the owners of the boat will be liable for his loss, even though it happen without any misconduct or negligence on the part of the captain.” “ Strict accountability applies to unathorized use of slaves.” Ib. 459, citing Wright vs. Gray, 2 Bay,…

<p>I1., as attorney in fact of one absent from the State, sold and conveyed land to S., but retained the power of attorney under which he acted and refused to deliver it to S. — On bill filed by S., IT. was ordered to deposite the power of attorney with the Register of the Court for the use of all interested.</p> <p>A pei’son properly entitled to the custody of the title deeds of his estate may obtain a decree for a specific delivery of them, if they be wrongfully withheld or detained from him.</p> <p>A bill for such purpose ought to allege danger of loss or destruction of the deeds in the keeping of him who withholds them, — semble.</p>

<p>A husband before having issue executed a deed by which he gave to his wife “ and her heirs” by him, certain slaves “ to have and to hold for her and their special use and benefit” forever, with a proviso, that, in the event of his death and her marrying again, the slaves and their increase should be equally divided between her and the heirs aforesaid. “But should there be no lawful heirs of her body” by him, then the said slaves and their increase, shall be hers forever: — Held, that the deed was inoperative — it amounting to nothing more than a gift to himself.</p> <p>If operative, then it was a marriage settlement and was void as to creditors because not recorded in the Register’s office for Richland where the parties resided.</p>

<p>Where a tenant for life sells a negro which is afterwards carried out of the State, on bill by the remainder-men for recovery of the value, the estate of the tenant for life is first liable — the purchaser only secondarily.</p>

<p>In 1852, plaintiff claiming to be distributee of B., -who was a distrib-utee of W., filed a bill against tbe administrator of W., and the ordinary, * for account, alleging that the estate of B., was derelict. The ordinary answered, denying all intermeddling or notice of assets. In 1854, the plaintiff administered on B’s estate and filed another bill, styling it a supplemental bill, against W., for account: — Held, that the second was. not a supplemental but an original bill.</p> <p>A recovery in trover against the administrator of W,, by one claiming under a deed executed by B., who was a distributee of 'W.jheld, to bar the administrator of B., from demanding an account from the administrator of W., for the value of the slaves thus recovered in trover, or any part thereof, although it appeared, that the verdict in trover was the result of a compromise, and was for much less than the full value of the slaves.</p> <p>On bill by the administratpr of a distributee of W. against W’s administrator for account, a counter claim, consisting of various matters, held, not objectionable because the claims were not in mutual right.</p>

BEFORE DUNKIN, OH., AT FAIRFIELD, JULY SITTINGS, 1857. This case came before the Court on exceptions to the report of Mr. Sterling a special referee.

BEFORE DARGAN, OH., AT LAURENS, JUNE SITTINGS, 1857. Tbis case came before tbe Court by motion to set aside a sale of land made by tbe Commissioner.

BEFORE DUNKIN', OF., AT SPARTANBURG, JUNE SITTINGS, 1857. A statement of tbe case is contained in tbe circuit decree wbicb is as follows: Dunkin, Ch. Tbe defendant, J. D. McCullough, was indebted to tbe plaintiff in tbe sum of seven hundred and sixty-eight dollars and ten cents, by sealed note, dated 9th January, 1855, and payable with interest from 1st January, one day after date.

<p>Mode of stating tlie accounts of a guardian where the receipts of every year have exceeded the expenditures.</p>

<p>BEFORE DARGAN, CH„ AT GREENVILLE, JULY SITTINGS, 1857.</p> <p>A sufficient statement of tbis case is contained in tbe opinion delivered in tbe Court of Appeals.</p>

<p>BEFORE DARGAN, OH., AT ABBEYILLE, JUNE SITTINGS, 1857.</p> <p>Tbe questions discussed and decided in the Court of Appeals in this cause, will be understood from the opinion delivered in that Court.</p>

BEFORE DUNKIN CH., AT SPARTANBURG-, JUNE SITTINGS, 1857. This bill was filed by tbe complainant as executrix of H. J. Dean, wbo in bis lifetime, was tbe executor of bis father John Dean. Tbe legatees of tbe will of John Dean were numerous, and bis executor was appointed trustee of tbe married females. He sold tbe estate under a power conferred by tbe will, and died before be bad made distribution of tbe proceeds.

BEFORE DARGAN, OH., AT GREENVILLE, JULY SITTINGS, 1857. The defendant was the administrator of Mrs. Elizabeth Earle, who died intestate in March, 1852, having in possession, at the time of her death, a family of three slaves, to wit: Jnda, the mother, and Jim, and Noah, her children. The plaintiffs were residents of Alabama, and tbe plaintiff Sarab, was tbe daughter of Mrs. Earle, tbe intestate.

BEFORE DUNKIN, OH., AT UNION, JUNE SITTINGS, 1857. A statement of tbis case is contained in tbe circuit decree, wbicb is as follows: DUNKIN, Ch. This bill was filed by the widow of David Spiva, who died in the West, some two years since. The purpose is to obtain dower in a tract of land, called the David Myers tract, conveyed by the husband during the coverture, to wit: on the 16th Nov., 1846, to A. Y. Jeter, the father of the defendant.

BEFORE JOHNSTON, OH., AT SUMTER, JUNE, 1857. Held: that the gift was incomplete and could be revoked, and that the taking possession by the administrator and suing upon the bond amounted to a revocation. Picott vs. Sanderson, 1 Dev. 309. So we say here.

<p>Where there is a bequest to one for life, “ and at her death to be equally divided amongst” a class of persons, as “ my children and grand-children,” all who come within the terms of description at the death of the tenant for life, whether in esse at the death of the testator or born afterwards, are entitled to take ; and, if there be nothing in the will indicating a contrary intent, they take equally and per capita.</p>

BEFORE DARGAN, OH., AT GREENVILLE, JULY SITTINGS, 1857. In the report of the Commissioner upon the accounts of the ■defendant’s testator, George Croft, as trustee, six hundred dollars were allowed for the personal services of the trustee in going to Alabama, four times, to see after the property, and protect it, first, from the claims of the creditors of E. ~W. Sollee, and again from the claims of the creditors of B. M. Pearson, (see 7 Rich. Eq. 34.) .

<p>A father conveyed by deed certain slaves to W., in trust for bis seven children then living, reserving to himself the use during his natural life; “ and from and immediately after his death to be tahen in trust by the said W., and as the children before mentioned arrive at age or marry, at which time the said negroes and their increase to be equally divided between them or the surviving ones of the seven before mentioned, share and share alike, freed and discharged of all further and other trusts or limitations, to be held by them and each of them, their and each of their executors, administrators and assigns — Held, by Johnston and Dargan, CO., that only such of the seven children as survived the father were entitled to take.</p> <p>The deed was executed in 1815, when the children were all minors. One died, and in 1829 the donor divided the slaves among the six surviving children — two of whom were still minors. The donor died in 1852, leaving four of the seven children surviving him, who filed their bill against his executrix, claiming such of the negroes, and their increase, or their value, as had been allotted, in 1829, to two of the deceased children, and averring want of notice of the deed of 1815, until after the death of the donor: — Held, that the lapse of time and circumstances of the case were sufficient, after the death of the donor and trustee, to raise the presumption of notice; and that having acquiesced for so long a time, they could not now disturb the division of 1829.</p> <p>The bill was barred by the statute of limitations : semble.</p> <p>Constructive notice will not arise from the recording of a deed which the law does not require to be recorded; but such recording rebuts the idea of concealment, and is a circumstance to be relied on in considering the question of actual notice.</p> <p>The Court is always reluctant to disturb family settlements, more especially where they are old, and the parties principally to be affected being dead, can give no answer or explanation.</p> <p>Want of notice does not prevent the statute of limitations from running where there is no fraud.</p>

<p>Where a husband dies insolvent, his widow has the right to require his administrators to apply the personal estate to a specialty debt secured by a mortgage of land, given before the marriage, so- as to subject the land to her claim of dower, discharged from the incumbrance of the mortgage.</p> <p>Where a copartner, having a separate estate, dies, the eo-partnership creditors have the right first to exhaust the co-partnership estate, and if that prove insufficient to pay their demands, then they are to be paid from the separate estate of the copartner pro raía with his separate creditors.</p> <p>In ascertaining the pro rata due a copartnership creditor from the sepa, rate estate of a deceased copartner, who died insolvent, the debt should be regarded as standing in the precise condition in which it stood at the death of the copartner, without regard to any subsequent payments derived from the copartnership assets; though, to avoid double satisfaction, such creditor is not entitled to receive more than the balance due, after deducting such payments.</p> <p>A debt due the copartnership by a deceased copartner is to be proved against his estate as any other separate debt.</p>

BEFORE DUNKIN CH., AT ABBEYILLE, JUNE, 1856. The decree of his Honor, the Chancellor, is as follows: Dunkin, Ch. This is a proceeding of some novelty. At the Court of Sessions, for Abbeville district, Fall term, 1855, the principal defendant, William S. Baker, (then being under the age of eighteen years,) was convicted of manslaughter; and was thereupon sentenced to stand imprisoned for eight months, and pay a fine of two hundred and fifty dollars.

BEFOSE D ARCAN, CH., AT STJMTER, JANUARY, 1856. Tbe circuit decree and tbe opinions delivered in tbe Court of Errors and Court of Appeals in Equity explain themselves, and render any further statement of the case unnecessary. Tbe circuit decree is as follows : Dargah, Oh. Tbe plaintiff bas sustained every material allegation of ber bill, at least all sucb as were deemed material by ber, and on wbicb sbe relied for support of ber prayer for relief.