Volume 4 — South Carolina Equity Reports

<p>The bill in tills case, states that complainant bargained with "William Ford, the testator, in the year 1800, for one eighth of Sooth island, for 500k to be paid in five equal annual instalments. That complainant look from the testator a bond to make titles to him for the same, in trust for Ids son Samuel Alfred Taylor. That he furlher agreed with the testator to sell to him throe .negro slaves, for, as he believes. T:6k Ads. 10(h and gave a bill of sale for them, the consideration money mentioned in which is the true sum for which the slaves' were sold. That it was also agreed, that the purchase money of the said slaves, should be considered as a part payment of the said land, and was accordingly endorsed upon the said bond. That complainant bound said William Ford, to make titles to him, in trust for his said son, that he might compel the making such titles in case lie should think proper to do so, but that the property, given as aforesaid in payment, belonged to complainant, and that his son had no claim or right thereto. Thai; complainant made other payments to said testator on account of said land, which he charged in his general account, on which there is due to complainant a balance of g 779 76. That the business remained in this situation until the 5th of April 1806, when testator being very rick, made his will, and among other things devised half of his fourth of South Island to his nephew Francis W. James, and the other half being that which lie sold complainant as aforesaid, to complainant’s son William Ford Taylor. That testator further directed, as he had given complainant Iris, bond to make titles to the half of the fourth of said island devised to William F. Taylor, and as complainant had made him payment thereon, that complainant’s bonds should be given up, and the payments made as aforesaid be refunded oui> of his estate — And ihe testator appointed among others the honorable William James executor of his will 5 and he alone qualified there-pa. That the. will of the said William Ford was drawn by defendant. That complainant was present, and was informed by defendant that testator was desirous of giving the part of South Island which he had sold to complainant, to complainant’s said son William F. Taylor, but defendant not being able to understand the directions, desired complainant to explain them to him. That complainant thereupon, in the presence of said’ defendant, enquired of testator what were his wishes in that particular. Whereupon the said testator replied, that he wished to will the land sold to complainant to Ids said »$u William F, Taylor, if it Was agreeable to domnlain-put, and to refund the money complainant had paid.- — That complainant informed testator that it was agreeable to him, if it would afford the said testator any gratifica-tiou. That the said testator further observed, in the presence of defendant, that complainant bad paid him for the land : after which explanation the will was drawn as above mentioned, which will, so far as relates to this case* is in the words following, viz. “ To William F. Taylor, son of captain Samuel Taylor, and his heirs forever, I devise the remaining one half of my one fourth of South Island ,* but as I have given the said Samuel Taylor my bond to malee him' titles to the said one half of the one fourth, aud he has made me payments thereon, my will is, that the said bond be given up to Mm, and the payments to be refunded to him out of my estate.” Thehill prays that defendant may be decreed to pay to complainant 500Í. with interest, and to deliver up the bond to ho .cancelled.</p> <p>The defendant by his answer admits the bargain for the sale of the land, but saith that whether complain-' ant bargained for the same for himself in his own proper light or as a trustee for Ms son Samuel Alfred Taylor lie is not informed, but submits the same to the court under the words of the bond, viz. That the bond was entered into by the said William Ford to make titles for the said land, in trust for the infant son of complainant, Samuel A. Taylor, and defendant prays the decision of the court whether the terms of the said bond or the said trust estate pan be altered or varied. He admits that the- negroes ■were sold as aforesaid for 4'56Z. 15s. 10it. and that it may have been in part payment of said land, and that a receipt may have been written off as aforesaid, but be cannot ad-' put that the negroes belonged to complainant in bis own right, and that his son Samuel Alfred had no claim to the .same, or that the same were unincumbered by any deed, settlement or judgment prior to the said transfer, and. prays that complainant may he put to proof of the same before he shall he decreed to pay the legacy bequeathed to him by the will of the said William Ford, as otherwise defendant may he compelled to pay the valgo of the said negroes again when the said Samuel Alfred comea c# age, or might hereafter lose the same by prior incumbían-ces. Defendant cannot admit that any other payments» were made towards satisfaction of said bond, and conceives himself bonne! as executor and guardian of his. children to require the said complainant to produce vouchers, or other proof, to substantiate the amount filed with this bill. Nor does defendant recollect, or believe, William Ford, when giving him directions about that clause of the will which relates to complainant, his ■son William F. Taylor, ever admitted that the bond above mentioned was fully paid; but on the contrary, from the conversation which took place between complainant and 'William Ford, to explain the nature of said bond, and the payments thereon, the impression on the mind of defendant was, that they were not agreed as to-said payments, and that William Ford considered the same only as partial. That complainant did not then state that the bond ivas given in trust for his son Samuel Á. Taylor, nor did defendant know any thing of that circumstance until he afterwards found the counterpart, of said bond among the papers of said testator. He admits the will, in which it will be peen that it is expressly stated that the bond was given to Samuel Taylor, and, that the said Samuel A. Taylor, or the trust in I;is behalf, are not mentioned in the same $ and that three of defendant’s children are the principal devisees, and legatees nnder the same. Defendant also submits, whether the devise to William F. Taylor be not void, as the said 'William Ford had, before the making of said devise, by a deed under his hand and seal, parted from all the right he had in the said one eighth of South Island, to Samuel A„ Taylor, and whether the said Samuel Taylor, by Ms verbal consent, could annul the said trust. He also submits whether complainant can take any thing under the clause of the will in his hill relied upon, since the principal object of the bounty of the said William Ford in the said de-vine was William F. Taylor, and if his intention, as to him should fail, whether the bequest to complainant should likewise fail, A nd the judge, after stating the. case con-iormably to the bill and answer, proceeds thus in his decree.</p> <p>The bond in this case (above stated) is inaccurately worded, for in one part of it Mr. Ford makes an actual conveyance of these lands, and in another pari he contemplates making titles to them as soon as the payments are made. But it appears to have been his intention that Mr. Taylor should have the possession of them immediately, for in the first part of the bond he uses the wordss< and given possession,” and in the latter part of it he authorizes him to use and exercise the power and authority vested in him as proprietor of the one fourth part of the said island to his us® and benefit; and ho further authorizes Mr. Taylor to use his name in ' procuring an order for a division of said island whenever'he should think proper to do so. It is not material whether . the paper recited be considered as an actual conveyance or as an agreement to convey, for, whatever for a valuable consideration is covenanted to be done, shall in equity. be looked upon as done — .thus money agreed to be laid out inland shall he taken as land, and e converso. Lichmore vs. The Earl of Carlile, 3 P. Wins. 211. Agreements to perform are often considered as performed; for if a man covenant to lay out a sum of money in the purchase of lands generally, and devises his real estate, before he has made such purchase, the money agreed to he laid out will pass to the devisee. Green vs. Smith, 1. Atk. 579,.</p> <p>It was said by the counsel for complainant, that a specific execution of an agreement would not have been decreed against William Ford in bis life time, unless the bond had been paid; but even if this were so, it appears from the complainant’s exhibit A. that he had more than paid tine purchase money to Ford previous to his death. For after crediting the balance due on the purchase of one eighth of South Island, lie states a balance to be due to himself of ¡3 7C9 78.</p> <p>Tim agreement for the sale of the land was for a valuable, consideration, between Mr. Ford and Mr. Tay-ior j and as between Mr. Taylor and Ins son Samuel A-Tayh\", ího cestui que trust, the consideration is also good. *e Natural love ami affection is very sufficient to create a use, and will amount to a covenant to stand seized though no other consideration appears.” Lloyd vs. Spillet, 2. Atk. 148'. Á father is bound by the laws.*' of nature to provide for his children, and if he purchase lauds in the, name of a son unadvanced, it is an advancement for him. Si Fonbl. 121. and 1. Atk. Taylor v$. Taylor.</p> <p>it is obvious that the complainant bought the lands on South Island for his son Samuel Alfred, and that he was to hold them in trust for him. Having done so, tiro cestui quo trust acquired rights which he has. not Been, deprived of by the reeision of the contract intended hy Mr. Ford and Mr. Samuel Taylor. In 2. Fonbl, I GO, chapter seventh, it is laid down that regularly no act of the trustee shall prejudice the cestui quo trust; and there is a note in the same page in these words, “ with respect to Ids powers (that is of the trustee) to prejudice bis cestui quo trust by alienation, the single case in which his alienation of the estate, can bind, the cestui que trust, when being in possession of the estate, he conveys it fora valuable consideration, and without notice the purchaser will be entitled to hold the estate against the cestui que trust.”</p> <p>If Sir. Taylor, the trustee, had a right to rescind the agreement between him in trust for his son Samuel Alfred and Mr. Ford, under the testator’s will, then the interest ©f the cestui quo trust will bo destroyed.</p> <p>The counsel for the complainant considered the agreement for the sale of the land as under the control, and capable of being rescinded by Mr. Ford and Mr. Taylor. They have rescinded the agreement if they could do it i but the court is of opinion, the rights of Samuel A. Taylor under the bond given to his father, in trust for him, are unimpaired; consequently, that the devise to "W. F. Taylor is void. If so, is Mr. Taylor entitled to have Ids bond delivered up to him and the payments made ©n it refunded to him ? There can be no doubt about the "iniraiicii of the testator. He intended,, as has been dIii?ady observed, to rescind tbc agreement he had made ■svitli Mr. Taylor, in trust for Samuel A. Taylor, in order that he might give tholands, the subject of that agreement, to W. F. Taylor. What he says respecting tbc bond, and the payment made thereon, has in it more of the character of a contract than a legacy. “ To W. F. Taylor, don of captain Samuel Taylor, and his heirs forever, I devise the remaining ono half of iny one fourth of South island, but as I have given tho said Samuel Taylor, my bond to make him titles to tho ono half of tho one fourth, and he has made me payments thereon, my will is that the-said bond be given up to him, and the payments thereon to be refunded out of my estate.5’ it is as if the testator had said to Mr. Taylor, I agreed to sell my land for a certain sun* — I wish to have these lands back again, as i wish to give them to your son bearing my name, William F. Taylor — If you will let me have them to enable me to do so, the bond shall be delivered up to you, and the payment's made on it refunded. If Mr. Taylor has not been able to revest the lands on South Island to Sir. Ford, Indispose of them as he wished, he cannot be entitled to the consideration agreed on for so doing.. A quid pro qu<«. was intended — Legacies are gratuitous. The court is of 'opinion that the testator did'not intend a personal bounty Vo complainant. The principal object of the testator'’» bounty was William F. Taylor, and the devise to him having failed, the legacy to tho complainant, as it bass been improperly called, for it has none of the feature;) of a legacy about it, so intimately connected with ami dependent on it, that that must fail also.- — Let the bill be dis» missed with costs.”</p> <p>From ibis decree tho complainant appealed and Stated the following grounds, viz ;</p> <p>1. For that the decree supposes the bond made by William Ford to complainant to be an actual conveyance, when in fact and in law, it is only a contract to convey, and being executory in its nature, was liable to be dis-annulled, and was disannulled by the parties, and cense-quen'Iy it was not competent for the court to revive iiv.</p> <p>2. For that it is determined by the decree that a use was created for Samuel A'. Taylor by the said bond,. whereas it can amount in law to no more than an intention to create a use, under which intention no obligation arises, and consequently the supposed cestui que trust acquired no right under it.</p> <p>3. For that the decree determines that the contract aforesaid could not be rescinded or disannulled, or otherwise discharged by the parties, although it is unexecuted.</p> <p>4. For that by the decree it is determined that the legacy to complainant is void, notwithstanding the plainest intentions of the testator to make the bequest, the said bequest being considered in light of a contract and not of a legacy, contrary to the rules for construing wills and legacies.</p> <p>The appeal was heard at Columbia, present chancellors Rutledge, Thompson, Dcsaussure and Gailiard. Mr. Grant for appellant — Mr. Richardson for respondent.</p> <p>The court of appeals was unanimously of opinion, that the bond or agreement to convoy the land from ’William Ford to Samuel Taylor, in -trust for his son Samuel Alfred Taylor, gave such an interest to S. Á. Taylor, in the land, as could not be divested or varied by the act of Ins father, and Win. Ford. That therefore the .subsequent devise of the said land by Win. Ford, to W. F. Taylor, cannot affect the rights of Samuel A. Taylor, in the said land, nor transfer them to W. F.Taylor.” The decree of the circuit court was therefore añlrmed as to the land. “ The court was further of opinion (Judge Gailiard dissenting) tiiat the failure of the devise of the land to W. F. Taylor, did not invalidate the bequest made by Wm. Ford to S. Taylor the father ; for the failure ox the inducement to a legacy docs not invalidate the legacy itself, unless founded in, fraud, or gross misrepresentation. The decree (on this point) therefore must be reversed. But as the court is doubtful whether under the circumstances of the case, S. Taylor, the legatee, ought not to he deemed a trastee to the amount of the legacy for his .son W.- F. Taylor, It was ordered said directed,-that the cause be referred back- to the c;r? -unit court, that the. last mentioned point might be argued a::;! decided.”</p> <p>The cause was accordingly remanded to the circuit court at Georgetown, where it was brought to a hearing before judge Gaillard, who then held that court.</p> <p>The judge, after stating the manner, and the point, on which the cause had been sent down, proceeded as follows:</p> <p>The circuit court did not consider the testator as intending to give a legacy to Wm. Taylor, when he ordered his bond to bo delivered up to him, and the payments made on it refunded. The court of appeals thought otherwise. From the doubt expressed by the court, whether under the circumstances of the case, Mr. Samuel Taylor, tlie legatee, ought not to be deemed a trustee to the amount of the legacy for his son W. F» Taylor, it would seem that they did not intend to decide, to whom the legacy should belong, to the father or the son. The lather was a party in the former suit, and claimed the legacy. The decree of the circuit court was, that the testator did not intend a personal bounty to him, and his bill was dismissed. If the court had made up its mind that he was entitled to the legacy, it is to be presumed that they would have said so when this part of the decree of the circuit court was reversed. I was under an impression, until I read the opinion of the court of appeals 'the other day, that W. F. Taylor was ordered to be .made a party in the suit, that the court might decree the legacy to him. As the court of appeals has declared the legacy not to be void, it will rest with them to say to whom it belongs. From the manner in which this case is ordered back, the circuit court is bound to give its judgment whether S. Taylor is to hold this legacy in trust for his son W. F. Taylor; or its other words, whether the legacy is given to S. Taylor or to his son; for if given to him in trust for his son, or lie is to hold it in trust for him, it is the same thing as if it had been given to ¡.he son himself, since he. would have the benefit of ií. I do not think "W. F. Taylor entitled to this legacy, because if is not given to him. lie was r.o doubt the prbreprJ. object >/' the testator’s bounty. The testator devised land to biro, but this deviso has been declared void by the circuit court, an^ decision affirmed. This case may be considered as a hard one, but it is the case of every other devisee to whom land is devised which the testator had no right to dispose of. To give the legacy to W. F. Taylor, would be to convert a devise of land into a money legacy, and to raise the money to pay it out of the testator’s personal estate. He lias no claim upon the estate for this. I quote from Digest of Modern Chancery Cases, page 139, the-case of Broome and Monk, reported 10 Vez. 597 — “A devisee claiming the benefit of a contract for the purchase of an estate, directed to go to the uses of the will, the title proving defective, has no claim upon the personal estate, either to have the purchase money, or another estate purchased, or the purchase completed, notwithstanding the defect.” The opinian of the court is, that 3. Taylor ought not to be deemed a trustee to the amount, of the legacy for his son W. F. Taylor.</p> <p>Theodore Gaiiíaiib.</p> <p>From this decree an appeal was made on the following grounds:</p> <p>1. Because the court did not decree the legacy to the complainant.</p> <p>2. Because the, distinct court did not determine the question referred to it by the court of appeals, which was, whether S. Taylor should take the legacy in his own. light, or as trustee for his son, and as the court decided that the son had no rigid to the legacy, it ought at the same time to have decided that the legacy should be taken by 3. Taylor in his own right. The question for the court is, “"Who shall take the legacy ?” They decided that it does not fail. It is decided ami the decision acquiesced in, that S. Taylor is not a trustee for his son— they call him the legatee and yet don’t give him the legacy.</p> <p>The appeal was heard by the court of appeals at itfr sitting in Columbia. Present chancellors Dcsaussurr. Gaiilard, and aties. After hearing counsel the cotas took time to consider and at its sit Urn: n Nov, lBi-b present chancellors Thompson, Dcsaussuvc, Gaillard and Waties, the court (judge Gaillard dissenting) delivered its final decree.</p> <p>This cause was originally tried at Georgetown, and the judge decreed that the bequest in the will of ¥m. Ford (by which he directed the bond for 5001. which had been given him for the purchase of a tract of land hy S«. Taylor, should be delivered up to the said S. Taylor, and that the payments which he had made under said bond should be refunded) had failed, and under the circumstances of the case, could not take effect. On an appeal this court was of opinion, that the legacy had not failed] and the decree was reversed, on the ground that the failure of the inducement to a legacy does not invalidate the legacy itself, unless founded in fraud, or gross, misrepresentation. - But as the court was doubtful whether under the circumstances of the case, Samuel Taylor, the legatee, ought not to be deemed a trustee to the amount of the legacy for his son W. F. Taylor, it was ordered and directed, that the cause should be referred back to the circuit court, that the aboYementioned point should be argued and decided.</p> <p>On the second hearing of the cause in the circuit court, the judge who presided was of opinion, and decided accordingly, that S. Taylor o tig lit not to be deemed a ' trustee for bis son W. F. Taylor. From tisis decision an appeal is made, on the ground, that the district court did not determine the question, which was referred to it by the court of appeals, whether S. Taylor should take the legacy in his owr. right or as trustee for his son; and that having decided that the son had no right to the legacy, it ought to have decreed the legacy to the complainant, Samuel Taylor, in his own right.</p> <p>This case has become entangled from the various decrees and orders which have been made in it. It therefore becomes necessary for this court to do final justice in the cause, and to put an end to litigation. The court has considered maturely the best mode of giving effect to the first decree of the court of appeals; and it' appearing, -hat although the father (who is complainant in this suit) is the nominal legatee, yet the son was really the object of the testator’s bounty, the court is of opinion, that the decree of the circuit court ought to be reversed; and that the said Samuel Taylor must be held to be trustee for the son. It is therefore ordered and decreed, that the decree of the circuit court be reversed, and that the case be sent down with directions that the defendant be ordered to deliver up the bond of Samuel Taylor, to the late Win* Ford (originally given' for a tract of land, amounting to 5001.) to the said Samuel Taylor; and that the amount paid by him on the bond to thesaid Wm. Ford be refunded to the said Samuel Taylor, with interest from one year after the death of testator, out of the estate of Win. Ford, after payment of the debts of the estate: And that the said Samuel Taylor do hold the same in trust for his son. W. F. Taylor, and accountable to him.</p> <p>WaDDY THOMPSON.</p> <p>Henry W. Besausstjre,</p> <p>Thomas Wattes.</p>

<p>ÍÍ.3E II.</p> <p>A bequest of two negroes, Caisarand Sabina, and their increase, to the testator’s wife for life, and after her death, the said Cssar and Sabina to be divided amongst his wife’s daughters, (by a former husband,) does not carry the increase of Sabina to the said daughters. The words of the will show a different intention. The increase sinks into the re* siduuni of the estate, and are distributable.</p>

JOHN Kimbrough, by his last will and testament, duly executed, devised and bequeathed to his grandson, John Augustus Benton, certain negro slaves, to him and the lawful begotten heirs of his body forever. Also, certain tracts of land, described in bis said will.

This case arose in the circuit court of Camden, on the petition of Mr. Cater, to make the settled and se-paratc estate of Ann, the wife of Thomas Eveleigh, liable for the payment of a debt contracted by Thomas Eveleigh, (who was the acting manager for the trust estate,) on account of the separate estate. The debt was contracted for the purchase of a saw gin, to get out the cotton crops of the trust estate.

The hill states that William Bonds, the first husband of Mrs. Hoeli, died in 1804, possessed of a considerable personal estate. That Daniel Carpenter and the complainant Ann, in August 1804, took upon themselves the administration of the said estate, and gave bond in the usual form to the ordinary, with the defendant Langley and Blanchard as surety.

The bill was filed in this case to obtain security for'' the forthcoming of certain negro slaves and their issue, who were in the possession of the defendants, and who were claimed by the complainants, after the determination of the life estate, which Mrs. Elgin had in them.

The bill was filed in this case, by a wife, who lived separate from her husband, to recover alimony, on the ground of ill usage, and being turned away by her husband. The defendant demurred to the hill.

<p>Sureties and guarantees may enforce mortgages or other counter-securities given to indemnify them, as soon as they are endangered, and before they hare actually paid the original clebt.-*-And they arc Tiot liable in damages for the detention of the property in goal till ■sold. — They would be liable for anv irregularities or impropriety in conducting- the sale, if any damages resulted — not otherwise. As soon as the sureties made sale of the property mortgaged to them, they were bound to apply the proceeds to pay off the debt — and not doing so, they are liable for the accruing interest, expenses and costs. An attorney at law has no right to give up the security of his client, unless he receives actual payment, or is specially authorized, to do so.</p>

<p>A creditor of an estate, who had a judgment, was proceeding to enforce it. — He agreed through an agent by letter, with a third person, that he should become the purchaser at a fixed price. This was done, and the purchaser paid the money to the creditor; but he was after-wards evicted by another claimant. The creditor was apprized of the outstanding- title on which tiie eviction toolt place, at the time he authorized the agreement for thesaie, but did not communicate it to the purchaser; who, however, received some information of the claim from ethers. The purchaser is entitled to recover back from the creditor the purchase money and interest, though he took the sheriff’s title without warranty.</p>

<p>Receipts given by heirs and distributees of an estate, to an administrator, for their shares of the estate, shall no'tbe presumed or construed to extend to their interests in the real estate, unless distinctly expressed ; especially where the money received is greatly inadequate to their chares.</p> <p>Parol evidence not admissible to extend the meaning and operation of such receipts, by stating that it was the intention of the parties to re-, lease their interests in the real estate, particularly where the parol evil dence offered is dubious arid uncertain.</p>

<p>This case was argued, and the following decree was made thereon, by judge James :</p> <p>This case comes before the court on exceptions to the commissioner’s report, made both by the complainants and the defendant, Richard Winn, and as the report and exceptions are very brief, for a right understanding of them, it will be necessary to make a short statement op the case:</p> <p>The bill sets forth that in August 1783, Thomas Lenoir, the father of complainants, became security to a bond, in which Thomas Baker was principal, wihch was made to John C. Smith, and conditioned for 563k 6s. 6d. That in June, 1789, Thomas Baker died, and the defendants, Richard Winn and Henry Hunter, administered upon his estate j that in January, 1790, they made a sale of his personal property to the amount of 759.1. 3s. and became themselves the principal purchasers ; that afterwards John C. Smith, sued the said administrators upon the bond, and obtained judgment and sued out his execution ; that several tracts of laud were sold linden said execution to the amount of 353Í. ; That John C. Smith assigned the said bond to W. and T. Somersail, and that a judgment has been obtained against the executors of Thomas Lenoir, deceased, upon the same, and execution pressed against his estate.</p> <p>Bill further states that Richard Winn and Henry Hunter have rendered no account of their administration of the estate of Thomas Baker, and have wasted the same, and that Henry Hunter has removed out of the state to the river Mississippi.</p> <p>Complainants pray that the said Richard Winn and Henry Hunter, may he compelled to make a discovery of - what sums belonging to theu estate of Thomas Baker came into their hands to be administered, and that, they inay be directed to pay to them the balance, if any remain, out of the estate of the said Thomas Baker, as far as it will go, and the residue out of their own estate.</p> <p>The defendant, Richard Winn, states in his answer that he believes complainant’s father did enter into the. said bond to John C. Smith, as security, and Thomas Bilker as principal. He admits that he and Henry Hunt-cr administered upon the estate of Thomas Baker, and sold property to the amount of 75Zl. 9s. and that he collected two other debts to the amount of 54Z. 19s. 9d. making in the whole 8071. 8s. 9(1. In his exhibit A. he makes a statement of the bonds and notes taken for the property of Thomas Baker, sold by the administrators, and states that he placed those papers in the hands of an attorney, Mr. Stark, to be sued, but he believes no part of them have been recovered by him. That the bond of Minor and John Winn, conditioned for 100Z. 11s. has been paid him by discount, with Minor Winn as the attorney of Man, Brown and Foltz. He admits that he purchased atthe sale of his intestate’s estate to the amount of 242Z. 2s. but that Thomas Baker was indebted on a bond to Waring^ Winn and Hampton, conditioned for 132Z. 16s. which bond was the sole property of defendant, and that defendant ought to be allowed the whole discount made with Minor Winn on the bond of Man, Brown and Foltz, and be also allowed to retain for the whole of his own debt.. That Thomas Baker was indebted to the loan office by bond and mortgage in the penalty of 500Í. 5 that the lands mortgaged sold for only $745, and defendant states that he is advised, that debts due to private persons, must be postponed to this debt due to the state, and that he is entitled to retain money in his hands to meet the said debt; that the bond of Roach to John C. Smith has been paid ; that Henry Hunter purchased at the sale of Isis intestate’s estate to the amount of 179,1. 14s. and that he has absconded from the state, and that defendant ought not to be made liable for this debt, as not having it in his power to prevent his purchasing at the sale, or to stop him from going away. Defendant admits that John C. Smith sued the administrators upon the said bond of Thomas Baker, and proceeded to execution as stated in the hill, but submits that he has nothing in his hands to satisfy the said debt. Ho admits that he hath not made regular returns to the ordinary, but that lie hath now filed a full account, with his answer, by which it appears he hath not wasted the estate of Thomas Baker, and therefore, that he ought not to be liable for tho deficiencies of the same out of his own estate.</p> <p>Upon the statement of accounts in this case, the commissioner lias charged the defendant with 8071. 8s. 9d. amount of sales of the estate of Thomas Baker, and monies collected by the defendant, and has given him credit for tho full amount of the debt and interest on the debt to tho loan office, and. for the average only on the bond of Thomas Baker to Waring, Winn and Hampton, and to Man, Brown and Foltz. Upon the balance lie has charged defendant with interest from Sept. 1801 to June 1809.</p> <p>To this report the complainants and defendant have filed the following exceptions, which the court will lake up in tho order that they occur:</p> <p>First exception of complainants. — £C Because the commissioner lias not allowed a priority to complainant’s demand.”</p> <p>It appears that this exception is intended to bo extended no further than to a claim of priority against the debts of private persons, for in the third exception the claim of priority as it regards the state is particularly mentioned; and hero it does not appear that the complainants have stated any legal ground in their bill by v, inch they are entitled toa priority, and the court will not travel out of it to search for one. It was indeed staled in argument, that John C. Smith had obtained a judgment on the bond of Thomas Baker in his lifetime, and that he afterwards renewed it by sci. fa. against the administrators,- hut if complainants wished to have tho advantage of this judgment, it ought to have been stated in their bill, and an opportunity afforded the defendant to have pleaded or answered to it; without this, there is no knowing what the answer would have been. As tho mat - ter now stands, it appears that judgment was obtained upon a bond, against the administrators of an intestate, who owed other bonds $ the latter bonds are, therefore, upon an equal footing with the former one, and this exception must be overruled.</p> <p>Second exception.' — “ Because the admission in the answer that judgment was had against the defendant, is an admission of assets to the amount of that judgment.’*</p> <p>The judgment in this case appears to have been obtained in Charleston, against defendant's residing in Fair-field district, after a return of two nihils upon a sci. fa.; and the defendants, from the nature of the case, could have no notice of it till the execution was sued out and levied upon the property of the deceased. "Whether such a proceeding be regular or not, under the laws of this state, the court lias groat doubt; but it will hot hesitate to say, that it would be inequitable to compel a defendant to pay out of his own pocket, for default of pleading in such a case. However, after looking into the books of practice, the bettor opinion seems to be, “that in case an action is brought upon a simple contract, or the like, and there be debts due to others upon bonds and specialties unsatisfied, in this case, the executor or administrator may not pay this debt, nor may he suffer the plaintiff to recover in his action; for if he doth, and he hath not assets besides to satisfy the debts duo upon bonds and specialties, he must satisfy so much out of his own estate.”</p> <p>■ — See Shepherd’s Touchstone.</p> <p>Now it would appear from this authority, that an executor or administrator, is only bound down to such strictness in pleading where there arc debts of an inferior and superior degree ; but in the present case the debts are all of the same degree by specialty, and from the death of the intestate were to be paid in the same order. The rule, must have been grounded upon the advantage that creditors of an inferior degree would obtain in some cases by having judgment not subject to such a plea, but .here the plea can make no difference, nor the judgment give any advantage further than to bring forward the properly to a sale, and to push the oilier specialties. For these reasons, therefore, let this exception be over-ruled^</p> <p>Tiiird exception. — « Tliat the debt to the state being secured by mortgage, the state had chosen its own security, and could not resort to the personal estate in preference to the other demands.5*</p> <p>On this exception the court has a strong leaning in favor of it, for the reason therein stated but the act of assembly appears to be imperative: Therefore, without being able to give any other reason for it, the court considers itself as bound to say ita lex scripta est, and'to overrule the exception.</p> <p>Fourth exception. — -This depends upon the same principle with the last, and must be over-ruled.</p> <p>Next, as to defendant’s exceptions.</p> <p>First exception. — “ Because the defendant ought to have been allowed the whole amount of the debt to Man,. Brown and Foltz.”</p> <p>Defendant has discounted this debt with Minor Winn, in the manner stated in the answer ; but if he had ever paid it out of his own pocket, as there were debts of equal degree, all he could have claimed from creditors would have been the average. This exception is therefore overruled.</p> <p>Second exception. — “ Because the commissioner ought to have allowed defendant to have retained his own debt to the whole amount of the bond, and not in average.”'</p> <p>The act of assembly, Pub. Laws, p. 202, relied upon by complainant’s counsel, seems to be very clear upon this point, that the administrator cannot retain the whole of his debt, but only in average and proportion with the other creditors ; therefore, let the second exception of defendant bo over-ruled.</p> <p>Tiiird exception. — “ Because he ought not to have been made liable for the property purchased by Hunter.”</p> <p>While the authority of the cases of Bague to. Black-lock, and Howell and wife vs. administrator of Carpenter, continue to influence this court, it will never decree upon an administration bond which lias been brought only incidentally before it on a bill for a discovery filed against the administrator: on the bond there is a remedy at common law 5 on the discovery the redress is in equity. In equity then, the administrators can only be recognized in their official capacity, and acting as such ; at law, they are obligors and co-securities in a bond, and, no doubt will be both equally liable. But, to make them liable here, there ought to have been shewn some privity between them, or some connivance of the one at the illegal acts of the other. But no privity can exist, otherwise an action would lie against one at the suit of the other, and that is not pretended, nor has any connivance been proved. Each had it in his power to sell 5 to bid at the sale (though perhaps not strictly legal) and to take the property purchased into his possession. There then was no connivance necessary on the part of the one to enable the other to do acts which he had it in his power to do without his assistance. — -2 Bro. 117.</p> <p>Neither has it been attempted to prove that the defendant before the court, connived at the absconding of the other, and his taking away the property. The contrary is sworn to in the answer. For these reasons, and upon the authority of the case of Champneys vs. Brown,</p> <p>(Barnes’ notes of cases, 440) and the authorities there cited, the court is of opinion that the defendant, Richard Winn, should nofrbe made liable for the acts of his co-administrator, Henry Hunter, at least under the present form of action. Therefore, let thé third exception of defendantbe sustained.</p> <p>Fourth exception. — He ought not to be made liable for the interest.”</p> <p>It has been the practice of the court of equity in all such cases as the present to allow interest; and the defendant has not shewn any good reason in his answer why he should be entitled to any extraordinary favor of the court. Therefore let this fourth exception be over-ruled';' and let the defendant be decreed to account with the commissioner upon the principles above stated.</p> <p>W. B. James.</p> <p>From this decree an appeal was made, and at the* sitting of the court of appeals, at Columbia, in Nov. *309, tlip general tenor of the decretal order was approved by the court; but it appearing to tbe court, from the statements of both parties, that there were iinport-ant facts, material to the justice of the case, which were not stated by the bill, nor answered by the defendants, for which reason the judge sitting in the circuit court had not felt himself at liberty to admit proof of such facts, it was therefore ordered, that the cause be sent down to the court below for trial, without prejudice to either party, and thatthe complainant have leave to amend his bill, on payment of the costs of amendment.</p> <p>In pursuance of the leave granted by the court for that purpose, the complainants amended their hill, by stating the material facts, which had been omitted, in the original bill. The amended bill not being answered, an order to take the bill, pi*o e.onfesso, was granted previous to tbe court in February 1810, at which term the defendant, Winn, obtained leave to set aside the said order, on condition that he should answer on or before the sittingof the court in June 1810. Atibe sitting of the court at Camden, the cause came to a hearing before, chancellor Desaussure, on the report of the commissioner and exceptions thereto ; which were as follows:</p> <p>I have examined the accounts in tills case, and find ■tliatthe defendants have received of the personal estate of Thomas Baker, sundry large sums, which, after deducting the debt due the public, and interest, and also the payment made by them on the judgment in favor of John C. Smith, amount with interest thereon to 15th February, 1808, to eleven hundred and twenty-eight pounds, twelve shillings and eleven pence. That on the said 15th February, 1808, this honorable court fixed tbe balance due. on the judgement in favor of J. C. Smith against the defendant’s intestate, including interest; to that day, at one. thousand and seventy-five pounds, thirteen shillings and seven pence.; on the said last mentioned sum of 1075k 13s. 7d. 1 have, calculated interest to this day, and report, the, amount of principal and interest to ho five thousand three hundred and sixtv-threc dollars, seventeen cents.</p> <p>B. BiNEmxr, Com. .</p> <p>To this report tho following exceptions were filed by the defendant’s counsel :</p> <p>First. — Because the commissioner bad not allowed the defendant, Gen. Winn, the payment made to bond creditors j and also, the sum retained on the bond duo to himself.</p> <p>Second. — Because the commissioner made the said •Gen. It. Winn, liable for monies received by his co-administrator, Hunter, which never came into his hands.</p> <p>Third.. — Because the commissioner allowed interest on the sum reported to be due to the complainants.</p>

<p>The complainant filed bis bill to recover from the defendant one half the amount of sales of a tract of land, which he had authorised the defendant to purchase on his behalf. But defendant had purchased the land in his own name, and refused to convey the land to the1 complainant, dr to let him into any participation in the purchase. The defendant afterwards sold the land to a third person at a very advanced price, and received the money, and refused to account for the same.</p> <p>The bill prayed for an account to he let into the benefit of said bargain.</p> <p>The defendant in his answer admitted that he was employed by the complainant to purchase the land on his behalf, and that he did so, hut took the title in his own name ; and on his return home, proposed that it should be a joint purchase, which the complainant agreed to. But complainant not having for a considerable time raised his moiety of the purchase money, the defendant was obliged to raise the whole at great inconvenience to himself. That the complainant afterwards settled with him for a moiety; but he, defendant, had meanwhile sold and conveyed the land to another person. The defendant also pleaded the statute of frauds ; and the statute of limitations ; and also demurred, because there was no affidavit annexed to the bill of complainant,* that the memorandum in writing, mentioned and relied upon in the bill, relative to the said agreement, is not in the custody or power of the complainant. ■ .</p>

The bill was filed to obtain alimony, and protection in the enjoyment of a settled estate, from a husband who wa> alleged to have ill-used his wife-.

In this case the only question made for the consideration of the court, was, whether the name of Sarah, the complainant, was not omitted by mistake, in the will of the testator, Samuel Winds, as a general legatee with the other legatees therein named ; and whether the defect could be supplied by parol evidence.

<p><Mf»= zv.</p> <p>Tlic court will not confirm the return of commissioners for the partition of lands, unless minor heirs are made parties to the proceedings by guardian. Commissioners afterwards recommending the sale of lands, the court confirmed the return and directed a sale on credit, With good security.</p> <p>Infants to have sis months after coming of age to shew cause against</p>

<p>The complainant filed his bill to establish bis title to a tract of land, which his father had agreed to purchase from John Dyer, and iiad paid part of the purchase, money, anil taken and held possession of the land until bis death; but he had not obtained regular convey-for the same, hut merely a bond to make titles, The complainant’s father died in 1781, intestate, and the complainant was his heir at law, but very young. That the widow of his father occupied the land, and obtained tilles to herself from the vendor, John Dyer, and gave him up his bond to make titles. That she intermarried with Aaron Snowden in 1788, who entered into a combination with D. Mandeville, the defendant, to defraud complainant of his right in the land; and the said Aaron, obtained from the vendor, John Dyer, for a very small consideration, conveyances for the same; and he after-wards conveyed the said land to the defendant, Mande-ville, and delivered him the possession of the same. But ¡he said Mandeville was informed before he made said purchase, of the complainant’s rights, andof all the circumstances. That complainant being young and ignorant, and supposing no injustice was intended him, submitted to these transactions during the life of his mother, which happened about two years before he filed his hill. The bill prays for an account of the rents and profits, and for the possession to be delivered to him.</p> <p>Aaron Snowden putting in no answer, the hill was taken pro confesso as to him.</p> <p>The defendant Mandeville, in his answer, admitted the purchase of the land in question, from Aaron Snow-den, for valuable consideration; but there being an execution against Snowden, he agreed to receive the sheriff’s title, on a sale made under said judgment, at a fixed price, and claims under said purchase; and denies any notice or knowledge of the complainant’s rights or claims. And defendant states, that he has been in possession of said land for many years, without any disturbance or notice from said complainant. Defendant relics upon lifer possession and the statute of limitations.</p>

<p>This was a bill filed by a wife against her husband to recover alimony, or some allowance to support her in living apart from her husband, on the ground of ill-usage. The wife had earned in marriage a considerable fortune, and a settlement had been made, which secured the estates to the issue of the marriage, but which gave the disposal of the income to the husband, during their joint lives, for the benefit of both, and to the survivor during life.</p> <p>The bill charged ill usage, gross neglect, and suffering the complainant to be in want of the comforts and necessaries of life, and prayed for relief. The defendant denied the charges.</p> <p>The cause came on and was heard by chancellor James, who, after the argument, delivered the following decree:</p> <p>In whatever points of view the present case is considered, whether as relating to the respectability of the parties litigant, or the example it is to offer to the community, it is of the utmost importance.</p> <p>It is important to the parties litigant, not in a pecuniary point of view alone, hut also as it affects their peace and reputation; and to the community, in shewing how necessary it is for married persons to control their tempers, and to guard against cvey cause of offence to each other, though such cause may appear to the one ■offering it not well founded, or of little importance. This cascáis also one of difficulty in the decision 5 hutas to this I rejoice, that if I should err, my errors ave subject to the revision of a court of appeals.</p> <p>The questions which appear proper for my decision are, first, — Whether the plaintiff is entitled to alimony on account of her good conduct as a wife. Second,— If her conduct should he such as not to entitle her to alimony out of the private estate of the husband, whether she is not entitled to it out of the trust estate, and by the offer if not agreement of the defendant. To excuse her departure from the bed and board of her husband, as sta - ted in the answer, and not contradicted by the evidence, ihe wife has alleged that defendant suffered her to want ¿¡1C necessaries of life, and tliat he used her ill. We will proceed to examine how these allegations arc supported proofs. The witnesses-which she relies upon to prove the want of necessaries, are two: Mrs. Eliza White and Mrs. Croft. Mrs. White deposes, “ That the complainant before her marriage with defendant, and whilst d<> ponent resided with her (about two years) lived in the greatest comfort, and was abundantly supplied with the necessaries and luxuries of life: and during her residence with complainant and defendant, after their marriage, which was about eighteen months, she was provided for very abundantly until she left them. That deponent afterwards paid several visits, and sometimes staid two or three months upon a visit. On these occasions she found complainant scarcely provided for, and sometimes nearly destitute of the necessaries of life. That the defendant often loft the complainant, and would stay away three or four months at a time, leaving her so scantily provided for, that she was obliged to sell trilling articles, in order to supply herself with necessaries.” Mrs. Croft has deposed, “ that she often visited the house of complainant while she was a widow, and she lived very happily and in a comfortable stile. That since the intermarriage of complainant and defendant, she has frequently visited the house of defendant, and sometimes in his absence. That she has witnessed a wantof those articles necessary for the comfort and convenience of a family in their situation 3 but cannot specify the articles wanted. That she has known complainant before her separation, refused credit in Georgetown j hut docs not know whether her not obtaining tiic articles she wished, arose from an order of defendant, or because they were not to bo obtained in the store.”</p> <p>To contradict the evidence of these two witnesses, and to shew that complainant never wanted the comforts and necessaries of life, defendant has in his answer denied the allegations to that effect in the bill, and has supported his answer by the testimony of Mrs. Charlotte Á. Alisten, Mrs. Marvin, Mr. Sessions, who was the overseer on the plantation, Mr. dohn Keith, Mr. Banja-mi in Huger, Dr. Blyth and Dr. Allston. Defendant in liis answer states, “ that he doth particularly deny it to be true, that he at any time, left the complainant unprovided with the necessaries of life, as in bill alleged; on the contrary, he doth affirm, that his house was well provided, not only with the necessaries, but with most of the usual luxuries of life.” Mrs. Charlotte A. Allston deposes, “ That in her visits to defendant’s house, she always witnessed the greatest abundance of all that could contribute to the comfort and support of a family ; and that the stile of living of complainant, during the life of her first husband, and during her widowhood, was not preferable to that of her living when she resided with defendant.” Dr. Allston has deposed to the same effect. Mrs. Marvin has sworn, iS That she is well acquainted with the complainant, but lias little or no acquaintance with the defendant; that 'she visited their house sometime in the year 1802 or 1803, and that she observed the greatest abundance of every kind of comfort, proper for a family, such as that of the defendant’s.” Mr. Sessions, the overseer, “ Served defendant three years, from 1800 till 1803, after the separation of his wife the complainant from him ; and lived on the place when Mrs. Eliza White (then Miss Allston) was present there. That as overseer he had the care of the live stock and poultry, which was as abundant as in most plantations ; that these were killed and used in the absence of defendant equally as when he v,as present.” The witness, Mr. Keith, and his family, by invitations visited defendant and family. He states, “ that they staid five or six days, and defendant’s living appeared to be equal to his fortune.” Mr. Benjamin Huger deposed much to the same effect, “ that defendant’s stile of living was equal to his fortune.” Dr. Blyth has sworn, “ That he knew defendant for many years when he was a bachelor, when married to his first and when married to his second wife: That in all these situations he lived well; that he lived as well as his neighbors. And that there was no great difference between the stile of living of complainant, when she was a widow and when she was the wife of defon-tiant.” Besides these several witnesses, Mr. Samuel Smith and Mr. Savage Smith, merchants, were examin-wj10 proved, “ That complainant was permitted by her husband, the defendant, to take up goods in Georgetown, and that he gave her an unlimited credit there so much so, that Savage Smith as a friend told him, if lie continued to contract such heavy debts he would he ruined.”</p> <p>Such is the testimony offered by complainant to shew the want of the necessaries of life : and such that of the defendant to rebut the charge. In weighing the evidence, the court cannot have a doubt, nor hesitate to pronounce, that the testimony of these witnesses of complainant, however respectable, must fall to tin; ground, when oppugned by the answer, and by the testimony of nine other witnesses ; eight of whom are at least as respectable as the witness for complainant. It was said by the counsel for complainant, that the evidence of these two witnesses was positive. But the answer and testimony of Mrs. Allston, Br. Allston, Mrs. Marvin, Mr. Sessions and Dr. Blyth arc equally positive. But further to excuse her departure from her husband, the complainant has alleged his ill treatment of her. Upon this treatment, her claim to alimony out of his private estate must be principally founded. To prove this, she relies upon the evidence of the same two ladies, Mi's. White and Mrs. Croft; for the testimony of Mrs. Cross, her otherjjwitness, states nothing of bad treatment. Sirs. White has sworn, “ That the conduct of defendant towards complainant was total inattention and indifference. That witness hath often heard them quarrelling, hut without hearing any distinct words or conversation, though deponent hath discovered in their conduct towards each other, the visible effect of their private quarrels, after such had taken place. That in the opinion of deponent, the jeering and ridicule by defendant of the complainant, was of the most provoking and offensive kind, and calculated to wound her feelings, disgust her, and alienate her affections from him. That the defendant informed her, he had purchased a plantation to the southward, which he was then planting ; that this place would afford him a- good pretext for leaving complainant for a length of time, as it would otherwise appear strange that he should leave her for so long a time 3 that she was a virago and he could not live with her ; but that he would visit her at stated periods, see that she was provided for, and if her conduct to him was still disa greeable he would stay away longer and longer at a time.” Witness also, states, (as before mentioned) That defendant often left the complainant, and would stay away three or four months at a time.” Mrs. Croft deposes, “ That she thinks defendant was very frequent, ly absent from his family, and that she does not think that defendant was very affectionate to his wife. That she has heard them quarrelling at night after they had been in bed, though she could not distinctly hear their words : and that she has been at defendant’s when the complainant was very sick, and his treatment of her on such occasions was not affectionate and tender.” To contradict this testimony of ill treatment, defendant has offered the evidence of Mr. Benjamin Huger, Dr. Blyth, Mrs. Charlotte A. Allston and Mr. John Keith. Miv Huger states, « That defendant is not of a bad or violent temper. Dr. Blyth believes “ defendant to be a good natured man3” and states “ That he and his first wife lived happily together : no married people more so.” Sirs. Allston deposes, “ That she has known defendant for many years, and always found him a humane and amiable man3 and that he lived happy and tranquil with his first wife.” • Mr. Keitli has sworn, “ That he has been acquainted with defendant twenty years, and always considered him a good tempered, benevolent man. That he was a relation of defendants first wife, and was intimate with her brother, who esteemed and respected the defendant while his sister was alive, and continued to do so, after her death, as long as he- lived.” In considering the evidence, as to ill treatment offered by defendant to complainant, the court is of opinion, that it falls short of thesoevitia of the ecclesiastical court, which must he translated severity or cruelly. It is a pity that Mrsv White and Mrs. Croft had not descended to particulars so as to shew in what the “ inattention, indifference and the want of affection in defendant'’ consisted. As the matter stands, their thoughts and opinions are stated, or their reports of quarrels imperfectly heard. But if the court were to roly upon these, it is believed it would be the first time tiiat a court of justice has received the thoughts and opinions and the want of hearing of witnesses as conclusive evidence. Both of them state the frequent absences of the husband from home, as ill treatment; but defendant has in some measure accounted for this, by stating the number and dislance of his plantations from each other, and his disposition to visit his sick friends. But from the latter part of tiie conversation which Mrs. White states she had with defendant, respecting the temper of his wife, and his observations to Miss Colcock upon the same subject, and from the first and last letters from complainant to defendant, dated respectively the 20th October, 1799, and 26th December 1802, it is much to'bo suspected that complainant herself drove defendant from home to seek refuge from her bickerings. Of the contents of these two letters; particularly the first, my duty compels me to say, that I cannot draw a conclusion the least favorable. Both parties, as in most such cases, were no doubt in some respects blameable : Yet, taking the testimony of complainant’s two witnesses in its utmost latitude, I cannot see that severity or cruelty, for which it would seem tiiat an ecclesiastical court in England, would grant a divorce, a mensa and thora: nor does there appear to me any agreement to live separate between them, except in their own obstinate determination. Nor, to bring the case nearer home, is the treatment, though somewhat neglectful, equal to that stated in flie case of Je.Uineau vs. Jeilineau decided in this court.1»' In that case, the defendant refused to send away the woman who was .the bone of contention between them. At dinner one day he took away the plate from complainant when she was going to help herself to something to cat, and said, when he and his servant had dined she might, lie grudged her the bread she ace, and said “ grass wa» good enough tor her. Tnat he was going to a magistrate to get a divorce, and would buy a horse-whip and whip her well beiore she went away.” in the present case, whatever the warmth oi some ot the conns,ex may have suggested without a intie oi' evidence, there was no such improper and brutal conduct oí delenuant, as in tile case quoted : and none such being proved, none such shall be presumed. 1 shaii not comment upon the evidence offered by defendant upon this point 5 it is lull and clear, anu wiit speak for itself. i have oeibie said, that the complainant has biíeren tne above evidence adduced by her, to excuse her departure from the bed and hoard oi her husband f tnat aorupc departure required some good, excuses, and those oderecl uo not appear sufficient or satisfactory. lían there been suen a want of necessaries as is pretended, and such severity or cruelty as the law looks for bcibre alimony is granted, it would not nave been reiused 5 but as the case alanos, i cannot tiiink myself warranted in granting it out oi the private fortune of the husband.</p>

<p>case sis'.</p> <p>An answer to a bill of discovery, having denied the equity of the bill, it was moved to dismiss the bill — but the answer having disclosed certain facts material to the justice of the case, and which it is doubtful whether they could have attained at law, the motion was refused.</p> <p>The security af a sheriff who lias committed defaults, is uqI at liberty to withhold the hooks of the sheriff which hare fallen into his hands, on the ground that the disclosure may subject him to suits.— The court will compel the production of them.</p>

<p>The court rescinded an order for a ne exeat made by the commissioner, and discharged the bond taken under the order. The demand of the creditor was a simple note of hand, and purely legal; and he could have had ball at law.</p>

<p>éASEsaar.</p> <p>A creditor enforcing his judgment at law, and selling land of his debtor, agrees with the agent of the debtor, who was acting under precise instructions, that if the agent would not bid up the land at the sale, he, the creditor, would buy it in, and give the debtor time to come in and pay the debt and redeem the land. The creditor represented this arrangement to third persons, who attended at the sale, prepared to purchase the property at its value, and prevented their bidding. He then bought in the land at one third of its value ; and a short time after sold the land, — gave credit »n the judgmen 1 lor she amount he had bid in the land, and pressed the debtor for tlie balance of the debt. The debtor is entitled to relief; and the creditor was decreed to pay the value which third persons were ready to have-paid.</p> <p>An agent acting' under precise instructions, iis not at liberty to depart from them. If he does, it is subject to the negation of his principal.</p>

. Thehe arc two questions in this case DECT EE First', — YV bother any mistake was made in the calculation on which the settlement of the note in question was made ? Second, — Whether the defendant is not entitled to two credits, which have not been' given 1dm in the settlement ? These two questions are entirely distinct from each other.

The bill charges that the complainant in the month of Jane, 1806, purchased of the defendant a lot of land with improvements in Columbia, for the consideration of 0 1,300 ; for which lio gave defendant two notes of hand, and took from defendant a bond for titles, to be made when the whole of the purchase money should be paid.

<p>case xxv.</p> <p>A deed by a stranger, providing for his natural child by a married woman is valid, and will be enforced against the trustee, administrator and representatives of the donor; though imperfect in its form, and though no immediate possession of the property be given by the grantor.</p> <p>It would be more immoral for the father of such a child, to de ceive the nominal father, and leave him to support a child not his own than to avow the truth, and make the provision.</p>

<p>Tiie complainant, Douglass, married one of the daughters of Phebc Ilearst, by her former husband, Cochran. The other complainants are her children by the same marriage. The complainants state., that shortly after Mrs. Cochran’s intermarriage with Ilearst, he died intestate, seized in ice of a valuable estate in lands,, leaving Phebc Hearst his widow, and several children, all of whom were by a former marriage. That under the, act for the abolition of the rights of primogeniture, and for the giving an equitable distribution of the real estate of intestates, sbc’became. entitled to one third of the real estate of said intestate, in fee simple; and the children of Ilearst to the other two thirds of it. That the said Phobe Hearst died intestate, about three years after the death of her husband, without having had her proportion of his estate, partitioned oif to her. Her legal representatives, the complainants, claim the third of Xicarsl’s real estate, and pray for a writ of partition. The facts are admitted by the defendants, who are the children of Hearst. The counsel for the defendants resisted the claim Of complainants, on the ground stated in the answer, that in cases of intestacy, when the widow has not elected in her lifetime, to take the provision made for her in her husband’s real estate by the abovementioned statute, she is considered as having made choice of her provision of dower. They relied on the following clause in that statute; “ That in all cases where provision is made by this act for the widow of a person dying intestate, the same shall, if accepted, be considered as in lieu and in bar of dower,” and they contend that the widow, having died without signifying by any act her acceptance of her distributive share, the same never vested in her, and was not transmissible to her representatives.</p>

<p>CASE XXVi f</p> <p>The outstanding' and undetermined claim of the widow to her .-.bare of the real estate of her deceased husband, ought not to prevent the administrator from settling' with the children and distributees.— And it is immaterial to the administrator whether the proportions reported by the commissioner be correct or not, if the distributees are satisfied.</p> <p>A widow claiming' dower, and having it partitioned off to her by legal process, and holding and enjoying the same, for several years, has made her election, and cannot afterwards set it aside and claim the third in lee simple, under the statute, when the estate is nearly settled.</p>

The complainants filed their hill to have an indemnity for the loss of certain land, sold by one of the defendants to Abram Smith, tlieiv testator, part of which was taken away by an older grant, on a trial at law. The complainants sought redress against James Martin, the vendor of the land, as well as against the representatives of John Martin, the surety, in a bond signed by both to guarantee the title to the whole tract.

<p>A person entitled as distributee to the personal estate of her deceased brother, possessed herself of the same, without administering on the estate, and assigned part of it to another, with whom she lived in concubinage. — After her death, administration.was taken out on the brother’s estate, and the administrator brought suit at law against the assignee for the property, and obtained a verdict. The court will not in such a case interfere in favor of the assignee, and enjoin the judgment. The transaction was irregular, and no proof of valuable op’;. Adoration to support it.</p>

<p>The hill was filed by the legatees of James Powei deceased, to compel the executors of the will of the said Powei, to give security for the due execution of the will.</p> <p>There was a provision in the will, (after a number of specific legacies,) that the whole of the testator’s plantation, which he then possessed, together with all his un~ bequeathed lands, negroes, horses, cattle, &c. should be disposed of in the following manner, viz. That the wife and children of testator . should live together on said plantation, as long as the wife remained a widow, and the children under age; and that they should have the whole of the benefit of the said property for their support, and for the education of the children ; but if' they should not agree to live together, that then the stock should be sold, and the negroes lured out, and the plantation rented; and that the benefit of the whole should be applied to the aforesaid purposes of maintc-nance and education; and that when .the children should come to lawful age, the whole of the said property then remaining, should be sold and equally divided among the legatees.</p> <p>The widow was the only qualified executrix living'* and she afterwards married John P. Thompson. Two of the children are some years undey age.</p> <p>The bill stated that there was danger of the said John P. Thompson’s wasting the property, before the period at which it is liable to ho sold and divided. That lie does not manage it with prudence and economy: — - That his own affairs are in an. embarrassed situation y and ho is in the habits of dissipation and extravagance,The complainants pray that he and his wife may bo compelled to give security to execute the will according to - the provisions of it, and to give security to account fop and pay over to the legatees,, at such time as he ought, by the provisions of the will, such sums as may at that time be due to them I’cspcctivcly.</p> <p>At the hearing of the case, tlie c'oniplainants.proved, that Thompson has sold notes which were the property of the estate at a discount; one in particular at a discount' of 28 or 38-per cent, and another at some discount not specified.</p> <p>They then offered and were about to prove the following facts :■ — 'That Thompson was insolvent,* — that he liad conveyed by deed to his own children all the property that he had; — 'andthat he had mortgaged a negro belonging to the estate of Pdwel, for a private debt of his-own.</p> <p>The complainants, however,• confessed that they did not expect to prove that Mr. Thompson-had lost or destroyed any particular part of the testator’s estate; but only that the estate was' in danger from the embarrassed situation and the conduct of Mr. Thompson.</p> <p>The judge held, that if the whole of this was proved, tl would not authorize tho court to decree security, and therefore dismissed the bill, witliout proceeding further w;pa y10 evidoace.</p> <p>'X’lto complainants appealed from this decree, on lh« ground that the circumstances proved and offered in evi{¡ence¡i manifested a necessity that the defendants, as executors of ike will mentioned in the biil, should give security according to the prayer of the bill, and that they should have been decreed to give suck security.</p> <p>Tbe appeal was heard by the chancellors James, Thompson, Bcsaussurc and Gail lard.</p> <p>contended that the executor ought nojto be compelled to give security. That the testator hejosed confidence in the executrix, and the court ought not to interfere, and order security, unless there be very gross misconduct, and actual waste of the assets of the estate. That though the executor had sold •some of the notes of the estate, he had since accounted for them fully j and though ■ he had mortgaged a negro slave of the estate, for his own debt, he had afterwards paid the debt and redeemed the slave. There was, therefore, no actual waste. That the apprehension ox waste is not a just ground to order security; nor the smallness of the executor's property; nor his conveyance of tiiat property to his children — for these only furnish grounds of apprehension. — SccSEq. Cases Abr. 420.</p> <p>If the court should order security, and the executor should not be able to give it, then you tpho away the trust and authority given by the testator.</p> <p>that the actual sale of lire notes of the estate at a discount, and the mortgage of a negro of the estate, for a private debt, would be sufficient acts to induce the court to order sc-’ curity to be given by an executor, and still more strongly by the husband of an executrix. Tiiat these acts, connected with his conveying away bis property to his children, excited such-strong grounds to apprehend a loss, that the court would interfere and compel security to be given. — Sec 1 liq. Cases, 238 ; 2 Vern. 249, House vs. Noble ; Ainb. ST'S, Farrar vs. Trentes.</p>

The complainants state in their bill, that in the month of December 1806, they entered into contract with the defendant, for the purchase of a tract of land, containing-450 acres, lying on Pacolot river, for which they gave their notes aggregating twelve hundred dollars, and received from John Clarke, the defendant, a bond hearing coeval date with the said notes, with con-ditiors to make titles for the land when the money should be paid.

Mes. Tayxor filed her bill against her husband fow the recovery of alimony, alleging sucb extreme ill usage by her husband, that she was compelled to leave his house and to live apart from him. The answer of the defendant denied the allegation in part, palliated them in some respects, and recriminated in other respects. The case came t© a hearing, and much evidene was given on both sides, and the case was argued by the counsel.

Tub bill was filed in this rase to obtain a perpetual injunction against a judgment at law, obtained by Michael Crawford the cider, against Sarah Crawford, in an action of trover for certain slaves; on the ground of fraud in the said Michael in obtaining the bill of sale for the slaves in question, on which bill of sale he had succeeded in gaining the verdict at law. The injunction was granted on the filing the hill.

This was an application on”the part of the wife for alimony. She proved such intolerable cruelty towards her on the part of the husband, that his counsel abandoned his cause, and the court conceived itsejf bound to decree to the complainant suitable alimony.

The bill set forth that on the 6th day of April 1780, the testator intermarried with Elizabeth Houten and bad issue, your oratrix, their only child. Some time after, he drove from his house his said wife, Elizabeth, with your oratrix, then an infant in her arms, without one shilling for their support. In this situation, the said Elizabeth took your oratrix to Charleston, and there obtained a place in the. orphan house, in which she was tenderly brought up and educated.

<p>cask «xw»?;</p> <p>The husband is liable for the debts of the wife, whether arising by contract, or malfeasance, as in case of devastavit. And her settled and separate property will be protected from the effects of her dcvastavits before marriage, unless his estate be insufficient to pay. But the husband is liable for devasiavits after marriage only so far as he received the money. Beyond that, her separate estate will be liable.</p> <p>Administrators liable for costs arising from their own neglect:, hut they are entitled to be reimbursed out of the estate, for costs properly incurred in defending the estate. One administrator is not liable for the acts of another, if they are distinct and separate. This court may decide on questions arising on an administration liondy coming1 incidentally before it, as well as on any other deed.- And. though, tire-bond of two administrators bo joint, the court may refer it to tho commissioner to ascertain how far each administrator has been guilty of a devastavit.</p>

<p>W. a creditor of II. F. obtained a judgment which bound his lands. II. F. afterwards contracted to sell Ilia lands to M. and gave bond to make titles therefor; and he received a small part of the purchase mo', ney, and took M’s bond for the balance; which bond he afterwards as-" signed to his creditors.</p> <p>M. afterwards dying insolvent without paying the balance of the purchase money, H. F. took possession of the lands and sold and conveyed part of them to D. for valuable consideration. The judgment of W. which originally bound the land, was revived, and the land was sold under the execution, and X F. became purchaser thereof for valuable consideration; and got sheriff’s titles. An old judgment creditor of M. afterwards revived his judgment, and sold the same land (which SI. had contracted to purchase from H. P.) at sheriff’s sale under the execution. 1?. H. became the purchaser for valuable consideration and got the sheriff’s title: ánd B. H. also got an assignment of the bond to make titles, originally made by II. F. to M. The original judgment never lost its lien, and the purchaser J. F. will be protected, there being no fraud in any of the transactions, and the statute of limitations not being pleaded or relied upon by any of the parties — and D. was a fair purchaser from H. F. without notice of the equitable title of M. and those claiming under him.</p>

The principal question in this case, is upon the allcg-ed liability of Skinner’s estate to make good a debt due to the estate of Mary Ridgcll, of which he was executor. Skinner as executor applied to the ordinary for leave to sell the personal estate of his testator. The ordinary gave leave to sell on the terms proposed in the petition, to wit, that the sale should be on a credit of twelve months, the purchasers giving bon.d with sufficient peiv sonal security.

Sarah JohNsg:? being about to marry James Du-pree, ami being' entitled to certain negro slates, a written agreement was entered into on the ad Feb. 1783* by which site, in consideration of the intended marriage, agreed, “ that in case the said marriage should take effect, she would convey the said slaves with their increase to the use and behoof of the said James Dupree,s? lie on his part covenanted, that, “ in consideration pf said marriage, that if the said Sarah Johnson…

The bill states that Abraham Cohen being possessed of a large estate, real and personal, made his will on the 25th May 1800, and appointed the following persons as executors: Solomon Cohen, Moses Myers, Jacob Myers, — Isaac Cohen, and Jacob Cohen, (when they shall be twenty-one,) Thomas Waties and Erasmus Rothmahler.

<p>case hit,</p> <p>A surety may apply to the court for relief and protection as soon as-lie is endangered.</p> <p>Conveyances of property by a husband in trust for bis wife and her issue, and purchases made on their behalf, will not be set aside as voluntary or fraudulent, where the husband has received and applied to the payment of his debts, dr other use, funds or property of his wife,, even though the values be not exactly the same.</p> <p>A marriage settlement not recorded within the time prescribed by-the statute, is void as to creditors, though the property was the wife’s, and though it was recorded before the debts contracted. The mere recording, after the legal time, is not sufficient notice to such creditor, as to set up the settlement, against his demand.</p>

<p>The act of Feb. 1791, provided that personal property acquired after Waking a will should not pass thereby.</p> <p>In 1805, a testator made his will, and disposed of all his real and personal estate, by several devises, and by a residuary clause.</p> <p>In 1808, an act was passed repealing the above provision of the act of 1791. The testator died in 1811, without any republication of his •will.</p> <p>The personal property which he had acquired after malting his will in 1805, passed wider the residuary clause of his will.</p>

The bill was. died in this case to set aside certain deeds executed by the complainant,, and conveying certain property, without any valuable consideration, imd for a special purpose, and to be valid only in the event of the complainant’s death. The defendant put in a general demurrer. On argument, Chancellor James sustained the demurrer by the following decree: In this case it lias been frequently said that the-Coart of Equity will not favor demurrers..

<p>This court will relieve a person who has contracted to purchase a tract of land, (for which the vendor gave a bond to make titles) against a fraud practised by the vendor and others, to defeat the equitable title; notwithstanding a verdict and nonsuit at law, against the purchaser , who could not avail himself at law, of his equitable title. The statute of 1744 (Public Laws, page 190,) does not stand in the way of such relief. A subsequent purchaser, pendente lite, or with sufficient notice to put him on the enquiry, cannot proteot himself against the equitable title.</p> <p>Bents and profits decreed; and a conveyance to the complainant.</p>

<p>The bill in this case is brought to have a partition of the estate of Benjamin David, and an account of the rents and profits received by the defendants, James Pen-nery and Josiah D avid; to obtain an allowance for the maintenance of the defendants, James, Benjamin, Sarah and Elizabeth David $ and also to have an account of the rents and profits of a plantation, which is claimed by the complainant in her own right.</p> <p>The only question in the case is, what share of the property set forth in the bill the complainants are entitled to.</p> <p>It appears that the complainant Sarah was, before her marriage with Mr. Pledger, the widow of Benjamin David, and entitled as such to one third of his real and personal estate 3 also, to a real estate in her own right. But it also appears, that before her present marriage, she conveyed by deed to the defendants James, Benjamin, Sarah and Elizabeth David, her children by her first husband, the whole of her interest before mentioned, reserving only one third part thereof for her own use during her life.</p> <p>It has been contended that this deed is not valid, because it grants an estate in futuro, and puts a freehold in abeyance $ also, that the habendum is repugnant to the premises, the estate in one being a tee simple, and in the other only for life.</p> <p>I should have been glad if these objections had been well founded, for J understand that by this extraordinary Act of bounty to the children of the first marriage, the children of the second will be unprovided for, and the mother herself will he left without a competent support. But the court cannot for these reasons set ¿side the deed. It is not, indeed, as formal as it ought to have been; but the intention is too manifest to be mistaken, and this will cure any informality. The complainant Sarah plainly intended to convey her .whole estate to her children James Benjamin, Sarah and Elizabeth David, except the use of the third part reserved for her life, and the deed must be considered as a covenant to stand seized to these uses. If so considered, there can be no room for the objection that the freehold in the land is in abeyance, for the covenanter has the seizin of it; and I cannot see any repugnance between the premises and the habendum, for the whole interest, except the portion for life is plainly described and conveyed by both ; in the first it is expressly said, that “ a fee simple is intended to be conveyed,’* ¡and in the last it is declared to be to the use of the children and their heirs.</p> <p>I am of opinion, therefore, that the deed is valid, and that the complainants are only entitled to the use of one third part of the property conveyed by it, during the life of the complainant Sarah; and that the defendants James, Benjamin, Sarah and Elizabeth David, are. entitled to the absolute use of two thirds thereof, and the remainder over in the other third part thereof after the death of their mother. The defendants James Pouncey and Josiah David, must account to ■ the complainants for the rents and profits of this third part. The complai-.«ants are also justly entitled to a reasonable allowance for the maintenance of the defendants^ James, Benjamins, Sarah and Elizabeth David.</p>

<p>The principal question made in this case, was whether the devises and bequests of real and personal estate, made by the testator, Joseph Walker, to trustees, in trust for his negro slave Betsey, and her three chil i dren, are valid devises,' and cajttake effect.</p>

. The complainants charge that a certain 3 apob Burger, (now deceased,) did in his life time execute a deed, an the day of ——~1792, whereby, in consider* lion of the love and affection he bore to his beloved grand-children by his daughter Catharina, and íor divers other good causes and considerations, he gave, granted and confirmed to his said grand children, three negro slaves, to wit, Ciesar, Nancy and Seely; to be delivered after his decease by his executors, into the…

Henry Sneigrove, the father of the complainant and defendant, made his last will and testament on the 14th day of May, 1798, whereby he devised and bequeathed to his wife, Honor Sneigrove, all his estate, real and personal, during her natural life, for her sole use, to be disposed of at her discretion, the better to raise her small children ; to continue in peaceable possession of the same during her natural life.

<p>The hill states that David Ellison Dunlap, late of Columbia, was at the time of his death, seized of a square of land in tho town of Columbia, containing four acres, and lying between Walnut, Laurel, Sumter and Marion streets. That the said David E. Dunlap, and his w'ife Susannah Potts Dunlap, were at the death of the said wife, jointly seized of three half acre lots in the said town, viz. Nos. 70,71 and 72, on Taylor street.</p> <p>That Mr. Dunlap and his wife died on the 10th .day of September, 1804, but Mrs. Dunlap died first, both without issue. That by Mrs. Dunlap’s death, one half of her right in the three lots on Taylor street, vested in Mr. Dunlap, and the other half in Robert Ellison, her father.</p> <p>The bill is brought by part of the heirs at law of Afp. Dunlap, for a partition of the lands, or some equivalent remedy.</p> <p>The heirs at law of Mr. Dunlap, who are entitled to the whole of the square, and to three-fourths of the lots on Taylor street, are as follows: Three brothers and one' sister of Mr. Dunlap, and five children of a deceased brother, and seven children of a deceased sister.</p> <p>Robert Ellison, who inherited from Mbs. Dunlap, one fourtli of the three lots on Taylor street, is dead, and his heirs are his widow and five children.</p> <p>The bill states that Mr. Dunlap made a will of his personal estate, but died intestate as to his real estate, and made Robert Dunlap and William Ellison and others, executors, but that these two only qualified.</p> <p>That these executors pretending to some authority to sell the lands of Mr. Dunlap, did sell the lots on Taylor street for sums of money unknown to the complainants, and that those lots are in the possession ofPeterSuau and Manoel Antonio, under pretence of ownership, or some right to hold them.</p> <p>The executors are called on to set forth what part of the lands they have sold ; for what prices and at what times. Messieurs Suau and Antonio are called on to shew by what right they hold; whether they have a real right to any portion of the land; to account for use and profits, and to declare if they have any thing to shew why the prayer, of the bill should not be granted.</p> <p>The complainants in an amendment of the bill, set forth that they are informed that the aforesaid executors have also sold the above mentioned square of land to William Howe and Samuel Dunlap, the younger, and that these purchasers have sold it to the honorable Abraham Notfc, and the object of the amendment is to maleo his honor judge Nott and those of whom he purchased, parties to the bill.</p> <p>The bill also claims a division of a half acre lot on Plain street, in the possession of J. M. and Lucas Creyón, but it is discovered since the filing of the bill, that Mr. Dunlap made a verbal exchange of that lot, attended with such strong equitable circumstances in confirmation of the exchange, that it is not thought proper to pursue the claim relative to that lot.</p> <p>The answer of William Ellison and Robert Dunlap admits that David Ellison Dunlap at the time of his death was seized of, one square of land in Columbia, but denies that he was seized of lot No. 27; admits that he was seized and entitled jointly with his wife to lots 70,71 and 72, and on her death to one half of her part of said lots. These defendants admit that the said David E. Dunlap, made his last will and testament, and did believe that it was duly executed to pass the real estate, an'd submit to the court, whether such ought not to be its effect for reasons which they assigned. The defendant, William Ellison does not know, and therefore neither admits nor denies that the persons named in the bill in that respect, are the heirs at law of said David Ellison Dunlap; admits that the persons named in that respect are heirs of Susannah Dunlap. Defendant Robert Dunlap, admits that the persons so named in the bill, are the heirs at law of David E. Dunlap, and the persons so named are heirs of Susannah Dunlap.</p> <p>These defendants admit that they alone qualified as executors, and delivered over to the persons named in the will, the legacies specifically bequeathed to them, and sold the rest of the personal estate, which amounted to $984 6 cents; that the debts and expenses amounted to $3,380 40 cents, exclusive of a debt to the commissioners of Columbia, part of which remains due. The personal estate not being adequate to the payment of the debts and expences of the estate, defendants resorted to the real estate (as they thought they had power to do) and sold to John Shultz, lots Nos. 70, 7L and 72, and a tract of land near Columbia, for $1,714 28 cents. The lots were estimated, defendants believe, at $700. Debts being still due by the estate, defendants, in 1811, sold the square to Samuel Dunlap and Wm. Howe, for $1,200. Defendants submit, that as the evident intention of the testator to bo collected from his will, was to exempt the personal estate specifically bequeathed from the payment of his debts; the real estate is the proper fund to be so applied, after exhausting the whole pei’sonal property, except the specific bequests, even though the will be not valid as to the rleality. Defendants trust that the court will support the sales of real estate, and confirm the titles of the purchasers, when they will pay over any balance in tlieif hands to the persons entitled.</p> <p>The answer of William Howe and Samuel Dunlap, the younger, purchaser» of the square of land in Columbia, from the executors, admits all the facts admitted by the answer of the executor*. It admits the purchase of the square by them for Si,200, in 1,811, and that this was the highest price that could have been procured. Defendants allege that contract was made some time before titles were executed; and When executed, admit that they sold the square to the honorable Abraham Nott, for $1,500. That they gave their bond to said Abraham Nott, conditiohed to make titles to him, when the first payment was made. Defendants thought the executors had the power to sell. They purchased because Robert Dunlap was in advance for the estate, but Was indebted to them in the sum of $400, which discount would cut off a part of the purchase money.</p> <p>The answer of John M. Creyón, admits that David Ellison Dmdap was seized and possessed of lot No. 27, but exchanged half of the same for half of an adjoining lot, and sold the lot thus constituted, to John Marshall, and as this defendant believes, received payment for the same.</p> <p>John Marshall sold and conveyed the same to this defendant, and received payment. Afterwards William Ellison, by deed of bargain and sale Conveyed to this defendant the lot he had procured by exchange from David E. Dunlap.</p> <p>The answer of Abraham Nott alleges that soon after the death of David E. Dunlap, William Ellison and one Dunlap, executors of said David, offered him for sale the square of land mentioned in the bill, but doubting their power under the will to sell, he refused to purchase. That in the year 1807, Samuel Dunlap and William Howe, offered him for sale the same square of land mentioned in the bill, and which they had purchased from the executors. That he informed them of the defect which ho understood existed in the willofthe saidB.E. Dunlap. But they informed him he ¡night purchase with perfect Safety, that the said sale was mad? with the consent of all the heirs, and that they would join in confirming the Contract. Giving credit to this representation, and find.ing that seven years had elapsed, and complainants had »ot preferred any claim, this defendant purchased the said lot from Howe and Dunlap, for $1,500, payable at stipulated periods, and took a bond from them to make good titles, on or before the payment of any part of the purchase money. Defendant submits, whether the sum so stipulated be not the full value of the land, and prays that his purchase may be confirmed, or that his notes may be delivered up.</p> <p>There was no dispute about the facts in this case, and no evidence was adduced on the trial of the cause, except Mr. Simon Taylor’s statement, it was agreed that the late Reverend David E. Dunlap, made his will on the 9th September, 1804, by which he devised and bequeathed all his real and personal estate to his wife and her heirs, (except such parts as are otherwise disposed of) after payment of his just debts and .funeral expenses. But if she should die without issue, or again, marry, then he directed that the three negroes, Job, Moses and Prince, should be the property of his three brothers, Robert, Samuel and William. And the testator requested of his said brothers, should the said negroes bo unwilling to be removed, that they would allow them to be sold, and the money arising.from the sale to be equally divided among his brothers. Should his wife die without issue, then he directed the wench Rachel and her issue and his household furniture to be given to his sister-in-law, Sarah E. Ellison. He bequeathed, to his sister, Mrs. Stevenson, a negro Woman named Pembo. lie then ordered the remainder of his real estate, consisting oflots and squares in Columbia, anda plantation adjacent to it, to be sold in whole or in part, at the discretion of his executors, with his cattle, hogs and horcas, to defray his funeral expenses and to pay all his just debts ; Provided the same should he necessary. He. ordered a debt due him by Col. Moore, to be applied to the payment of two debtsj to Mess. Purvis and P» Moore, and c0# After «ame other small legacies, ha named severe, friends to be his executors.</p> <p>This will was executed in the presence of two sub* Ecribing witnesses.</p> <p>It was further agreed, that Mrs. Dunlap, the wife of the testator, died on the 10th September, 1804, without, leaving any issue; and the testator immediately, on the same 10th September, made and executed a codicil to his will, by which after reciting the dispositions of his will as to his real estate, and that he had intended the surplus if any to go to his wife, but that it having pleased God to take her away, ho (by the said codicil) gave and bequeathed to his brothers and sisters by name, and the children of a deceased brother and sister, all the aforesaid balance of money, or residue or remainderof the said real estate, to .be divided among them and their heirs. And he bequeathed several other small legacies.</p> <p>This codicil was executed in the presence of two subscribing witnesses, one of whom had not been a subscribing witness to the will. The testator died soon after making the codicil aforesaid.</p> <p>It is agreed, and Mr. Simon Taylor proves the fact, that lie wrote the,will and the codicil abovementioned, at the request* and by the direction of the testator, and saw him sign and acknowlege them as his last will and codicil. And that he saw the subscribing witnesses sign the same as witnesses in the presence of each other, and of the testator. And the said Simon Taylor attached the codicil to the will, in the presence of the testator. But Mr. Taylor did not subscribe cither the will or codicil.</p> <p>Some of the executors named in the will qualified thereon, and supposing the will and codicil duly executed, they sold to several persons different parts of the real estate on credits ,* and either gave titles, or bonds to make titles; and took bonds from the purchasers for payment of the purchase money.</p> <p>They also delivered fho specific legacies of personal property to the legatees. They also sold the personal estate, not specifically bequeathed, and applied the proceeds towards the payment of the debts. Bat there re* mins a considerable sum still due by the estríe to sundry creditors.-</p> <p>It appears by the pleadings, and it was agreed, that one of the lots of land mentioned in the bill, was exchanged by the testator in his lifetime for another lot, and possession reciprocally given, though no titles were executed: And that the testator sold the lot which he acquired by the exchange : And also that the person with whom he made the exchange, sold the lot which he acquired to Mr. Creyón, and gave him titles, and he has remained in possession ever since. The complainants very properly consider these circumstances as establishing such an equitable, if not legal title, in Mr. Creyón, as entitles him to hold the same undisturbed by them.</p> <p>The answer of the executors who are defendants in this case, seemed to make it a point in the case, that the will was duly executed, as to the real éstate, notwithstanding there were only two subscribing witnesses. And some reliance was placed on the facts proved by Mr. Simon Taylor, as establishing a sufficient execution of the will under the statute of frauds. But the counsel very properly laid little stress upon this point. For admitting the truth of every word stated by Mr. Taylor, (and there can he no doubt of the truth of his statement,) still the question arises, to .what does it amount? That Mr. Taylor was present, and saw the execution of tiic will, and might have become a subscribing and attesting witness under the statute $ but that in point of fact, he did not become so ; he did not subscribe the will at all. Now the statute is so clear and peremptory on this point, that it is impossible to get over it. Nay, if Mr. Taylor had after the execution of the. will in his presence actually subscribed the will aB a witness, but in another room, and out of the presence of the testator, this subscription would not be sufficient.</p> <p>The will so imperfectly executed cannot pass real estate. Such is the law, and I must be governed by it, I therefore lay this point out of the case, and proceed ,iro flic consideration of the other questions which arise.</p> <p>Some reliance was also.placed in the pleadings oa .^)C fact that there were two subscribing witnesses to the will, and two to the codicil, which was written on the °f the will. It was insisted that one of the subscribe jng witnesses to the codicil, being a different person from the two who subscribed the will; there were three witnesses to this consolidated will and codicil; more especially as the codicil referred to the will, and affirmed it by an irresistible implication as to the sale of lands : All which amounted to a due execution of the will under the statute. And that the court would favor this construction to support a fair will, and to give effect to the intention of the testator. I was at first struck- with this argument, particularly when I adverted to the cases Which have established that if there be three subscribing witnesses to a will, it is not necessary that they should he present together; nor that they should subscribe the will at the same time : Provided, they witness the execution by the testator (by actual signing or acknowlegd-jnent) and subscribe it in his presence j nay, that an interval of four years between the signing of the witnesses, has not prevented the will from being valid, the requisites of the act being complied with. 7 Bacon, 308, 9. 2 Atk. 176, Sanders’ notes. 2 Vez. sen. 455, 6. S. C. Jones vs. Lake.</p> <p>But upon reflection, and upon authority, I am satisfied that this will cannot be supported, as executed con-formably to the statute. The same point came before lord Chief Justice Holt, and the three other judges of the king’s bench. Upon examining the cases as stated in 8 Viner, 130, and as more fully reported in 1 Shower, 65, 69, 88, under title oí' Lee vs. Libb, the circumstances appear to have been precisely those, which are in the case before the court. For the will had two witnesses, and the codicil had two witnesses, one of whom was different from the two in the will. The codicil referred to the will and affirmed it, as far as not altered by the codicil; hut gives some things differently from the will, -as in The case before us¿</p> <p>It was admitted by the court that there were three Witnesses to the intent of the testator, but only two to his will in writing; and that there were two witnesses to the codicil, one of whom was to the will, and the other not 5 so that there wanted one witness to the will in-writing. And" the court unanimously decided that this was not a good execution under the statute. 8 Yiner, ISO. 1 Shower, 65, 6, 9, 88, Lee vs. Libb.</p> <p>I am of the same opinion, and will add that if " one of the witnesses to the codicil was allowed to substantiate the will, by proving the codicil, which refers to the will, he would not support the will as executed, but would alone support the Codicil which varied it. Besides the act requires that the party sign the will in the presence .of three witnesses, which has not been done.</p> <p>I feel very great regret that I am not at liberty to set up and establish this will. No one can doubt of the testator’s intention, that this will should be effective as to the real estate, and a judge must always regret that he is obliged, by a strict adherence to the letter of a statute, intended to secure the due execution of wills, to prevent the intentions of the testator from taking effect. I feel bound to adhere to the statute, as well in this case as in others, though the circumstances are the strongest I have over known. If I could escape from the dilemma, I would most willingly ; but I dare not violate what I con* ■aider the literal provision of the statute, and the decided Cases which form the land marks of property. If the parties or their counsel are not satisfied with this opinion, I should he disposed to direct an issue at law, to try the due execution of this will, if that measure be desirable to the parties. For they have a right in cases which turn, upon the due execution of a will to have a trial by jury.</p> <p>This court has not authority definitively to declare tvhat is, or what is not a man’s last will. 2 Yez. sen. 459, 460. 3 Bro. P. C. 358. Kerrick vs, Bransby, 5 Yez. jr. 647. Ex parte Fearn, noto a, 13 Vez. jr. 297, Pemberton us. Pemberton. Or if the counsel have any doubts upon this point, I shall be very glad to have it carried up to the Court of Appeals and settled there.</p> <p>The next question is, whether these legacies did not lapse by the death of Mrs. Dunlap, in the lifetime of the testator.</p> <p>It is certainly a general rule, that if a legatee dies before the testator, the legacy shall be lapsed, and sink into the residuum of the testator’s personal estate, however the legacy may be giren to the legatee, his heirs, his executors, administrators and assigns. 4 Bac.' 387. 2 Fonb. 3685 9. 1 Bro. C. C. 84.</p> <p>But there are various exceptions to this rule, and amongst others, one exception is, where the legacy is given over to others, after the death of the first legatee, for in such a case, the legatee in remainder shall have it immediately. Toller’s law of Executors, 304. 2 Fonb.-369.</p> <p>But it is objected, that though this be true, the limitation over must be within the rules on that subject, or else the limitation will bo void, notwithstanding the lapse by the death of Mrs. Dunlap, in the lifetime of the testator and that the legatees in remainder cannot take.</p> <p>The learning upon this subject is exceedingly complicated, and it cannot be denied that there have been contradictory decisions.</p> <p>The devise in the will in this case, is as we have seen of all the testator’s real and personal estate, to his wife and her heirs forever. But if she died without issue, or again marry, then he ordered that the three negroes, Job, Moses and Prince, should he the equal property of his three brothers, Robert, Samuel and William; and he requests, if the negroes desire it, that his brothers would sell them, and divide the money among them.</p> <p>The first words of this clause of the will would undoubtedly have carried an estate tail, if it had been a question of the devise of real estate merely. Consc--quently, according to the established rule, tiio.se words Would have given an absolute estate in the personal property bequeathed to the legatee. And if the clause liad not contained other words, the limitation over must have been declared void, as being founded and depending 011 Fearne on Devises, H6, an indefinite failure of issue. 144, &c.</p> <p>But the subsequent words qualify it in such a manner as to raise the question, whether, the testator really meant the limitation over to depend on an indefinite failure of issue, and whether the qualifying words do not alter the case materially.</p> <p>The rule that the devise over, after a dying without issue, is in general void, is subject to various exceptions, which arc illustrated by many important decisions. Fearne, 179.</p> <p>The great exception is that, wherever the devise is to one, and his heirs or issue, with an executory devise over, limited to take place on an event which must happen within the compass of a life or lives in being (and 21 years and ten months after) such limitation over is good. Fearn, 181,186.</p> <p>And with respect to executory devises of personal estates, the strong leaning of the Court of Equity, is to lay hold of any words in the will, to tie up the generality of the expression, of dying without issue, and to coniine it to the dying without issue living at the time of the person’s decease; which would be within the prescribed limits, and therefore good. Fearn, 186.</p> <p>A bequest of a term for years, for raising “portions on either of two contingencies, of which one is within the allowed limits, will be good on that event occurring; and the court said it would not enter into the consideration, how far the other branch of the contingency might have been supported. It is of no importance in a case where the restrictive circumstances appear to prevent its being a devise, depending on an indefinite failure of issue, whether tho personal estate was limited tothedavisee or legatee generally, (as in Hughes vs Saycr) or for life, (as in Target vs. Gaunt) or to .such legatee and his heirs, or heirs of his body, or issue, or children, (as in various cases decided,) for the restriction is equally valid under any of these circumstances, and gives effect to the limitation over. Fearn, 224,5 : 2.S0.</p> <p>The case of Keily vs. Fowler, determined on appeal to the House of Lords, is a strong case to shew theavidi* ^Jr with which the court lays hold of aiiy circumstance however slight to support these limitations ef personal estates. The limitation over appeared to be on a dying without issue generally. For the testator bequeathed all his property to his daughter, but if she married without the consent of his executors, or died without issue, the property should return to his executors, to go as he directed, viz: Certain pecuniary legacies to different persons, and 20 cows and a horse to his daughter, and the remainder to be equally divided among las sisters’ children. It was decided by the Chancellor in Ireland, and affirmed by the House of Lords, upon the opinion of the judges, that the limitation ovor was to take effect on the death of the daughter, without issue, then living. Consequently was a good limitation, and must be permitted to take effect. Fearn, 256, 7, 8, 9.</p> <p>The circumstance of one of the contingencies, the alternative of the daughter’s marrying without the consent oftlie executors, (which must happen, if at all, in her lifetime) and of-the return of the estate to .the executors, and the nature of the chatties (cows and a horse) given to the daughter in the event of her marrying without consent, was not suitable to-the supposition Of an indefinite failure of issue j every'thing-seems to have >led-to this conclusion and decision.</p> <p>And two of those circumstances occur in the case before us | the limitation over was of negroes, and on the Wife’s marrying again, besides another important circumstance, which will be noted hereafter. So where the bequest is to a daughter, and if she die without issue of her body, the limitation over is to two, equally to-be divided | the court declared the limitation over to C. and D. is good. The direction is to divide, and therefore personal to C. and D. The division to be made between C. and D. shews that the testator looked to such division in their lifetime, and therefore did not mean an indefinite failure of issue, Circumstances, of equal import «ecus* in the case under oiu' consideration. Fearn, 242, -245. 1 D. and 35. 59S, Lyd® vs. Lyde.</p> <p>In these cases it will be found that Lord 'Chief Justice "Wiimot (Fearn, 245) is of opinion that the most trifling circumstance is sufficient to indicate or imply an intention So use such words in their restricted sense, to wit, issue then living. And Mr. Justice Buller agrees with him, and adapts his very words in a subsequent case. Fearn, 242, 252, 260.</p> <p>The case of'Shcppa-rd vs Lossinghatn, reported by Ambler, 122, and stated b-y -Fearn, -266, &c. is a strong ease to shew that the construction .ought to be made to answer the intention, wherever the intention dods not aim at restraining the alienation of property longer than is admissible by law in the ordinary course of enjoyment ■of it. In that case there were two clauses differently penned, one of which was not too remote according .to the ordinary construction, and the other too remote. Birt the intention seemed to be the samein both, and lord Ha-rdwicke declared that the same construction was to be put on both; and the limitations in both were supported, -on the ground of intention. The maxim noscitur a sociis "was applied to the two clauses, and took the latter limitation out of the rule. 'Fearn. 270, 1, &c. 2 ¥ea. 118, Exdl vs. Wallace. Also Fearn, 454.</p> <p>See too, Longhead -vs. Phelps, Sir Wm. Blackstone’s Heports, 704, v/here it is decided, that where there isa trust for raising portions on either of two contingencies, and one of them is within the proscribed limits, it will be good-in that event, or if -that contingency happens. Fearn, 154, 5 ; 216,457.</p> <p>In applying-these principles established, or illustrated by the decided cases' which have been noticed, we shall not have much room for doubt in the caitse under consideration.</p> <p>There are many circumstances to satisfy our minds, -that the testator did not mean to ground the limitation on an indefinite failure of issue of his wife. In the first place there is a contingency with a double aspect. The limitation over is to take effect either on.the wife?s dying without issue, or on her again marrying. One of these contingencies taken by itself, seems to come within the. rulo, and it is too remote. The other clearly not, for it must happen during her life, as if she ever married again, it must be in her lifetime.</p> <p>And we have seen by the decided cases that where one of the contingencies is not too remote, and the other is too remote, that the limitation shall be supported. But not to rely too strongly on this ground, (as the contingency which has happened, to wit, the dying without is-' sue, is that whereon the limitation over is now claimed,) we shuilhe led to the same conclusion by the other circumstances in this case. The property bequeathed and limited over to the three brothers, was three negro men. Now the very nature of the property shews that the testator could not have contemplated an indefinite failure of issue. Besides, he desires that Ills three brothers (if these negroes desired not to be removed) should soil them and divide the money. All these are acts indicative of the testator’s looking to the limitation taking effect, if at all, noton an indefinite failure of issue, (which might pass the limit of the lives of all these persons) but to what must occur in the compass of a number of lives then in being. For tiie persons living were to perform these acts.</p> <p>Another argument might he drawn from the peculiarity of the wording of these limitations ; but as it would be more refined than the foregoing, and is not necessary to bring us to the conclusion at which wc have arrived, I shall not go into it,</p> <p>I am then satisfied that the limition over of the throe negro men, to the three brothers of the testator, is not too remote; and therefore that this is a good legacy to them, which did not lapse by the death of Mrs. Dunlap before the testator, because of the limitation over.</p> <p>I am much more doubtful of the legacy of the negro wench ilachcl and her family, and the household furniture to Mrs. Ellison. The limitation over is put upon the naked dying without issue, of the wife of testator, which is clearly too remote. But as the words, “to be given to my well bclsved sister-in-law, S. FS. Ellison, to bo disposed of as sbe may think proper, do not seem to look beyond Mrs. Ellison, and the disposition spoken of to be made by her, seems to be a personal act which could not reasonably be expected to be perfomed'by her, if grounded on '*■ .failure of issue, and as the ceurt seizes the smallest circumstance, to prevent bequests of personal estate from failing by the operation of a mere technical rule, I will venture to say, that even this limitation, worded as it is, is not too remote ; but shall have effect. But in this opinion I am not by any means confident.</p> <p>The argument, however, in favor of these limitations over, does not rest here: It was contended that Mr. Dunlap, the testator, after the death of his wife, executed a codicil, which was in effect a republication of the will, adapted to the new state of things arising from the death of his wife; which republication would confirm and give full effect to the clauses of the will, bequeathing the legacies therein, stripped of the intervening estate given to the wife, which had lapsed so far as they related to her, by her death in the testator’s lifetime.</p> <p>To this it was objected, that the codicil could not he said to confirm the will 3 for the codicil says nothing and gives nothing of the personal estate, (except a few new legacies) and the gift to Mrs. Dunlap had, in the meanwhile, lapsed, and the limitation was too remote 3 so that the republication amounted to nothing and confirmed nothing.</p> <p>It may he strongly answered that the codicil referred to the will — speaks of the death of the wife — new models part of the will — makes some new bequests, and leaves others untouched as they stood on the face of the will. What is the plain language of this conduct of the testator ? It is this, My wife is dead without issue. The proceeds of the sale of my lauds, which I had ordered by my will, to he sold, I intended for mv wife 3 hut site-being dead, I therefore give the same to some others of my friends. As to those legacies given to my brothers., to take efibet on the death of my wife, I leave my will as it stood, because, as she is now dead, they will doubtless ijg; immediately entitled to those legacies, now that tha intervening estate of my wife is gone»</p> <p>It is pretty obvious that the testator did not mean to ^i° intestate as to any part of his estate,, for at the awA fid moment when Ms wife lay dead, and hi» own- death was rapidly approaching, he makes this codicil to bequeath what he thought would be undisposed of in consequence of her death; to wit, the residue of the sales of Ms-real- estate. Yet he leaves these specific personal legacies undisturbed. I think a strong inference arises that he meant them to go in the way he had originally expressed, but of coarse relieved from the intermediate estate given to the wife.</p> <p>But it. is said we cannot argue in this way,, because we are not at liberty to receive evidence that the wife died without issue, and that the husband knew this,, and therefore framed a new will accordingly.</p> <p>It might be sufficient to say, that the pleadings i® the cause state that fact as part of the case upon which the court is called to decide. 3 am aware that there ar® decided cases which say that the court cannot receive evidence 'of a fact to assist in explaining the testator’s Will — -Brown .-us, Selwyn, Cases Temp. Talbot, 240; May-hanks vs. Brooks, 1 Bro. C. C. 84 ; 9 Yezey, jr. 575.</p> <p>These cases go to shew that parol evidence shail not be received to ¡trové that the testator knew of the death of legatee at the time of making his will, as an argument that he intended that the legacy should be transmissible to the legatee’s personal representatives. But these cases do not come up to this; and none of them deny but that the court may receive parol evidence to solve» nay, even to raise an ambiguity in a will. The cases on this point are numerous, complicated and sometimes at variance. But it is not necessary to go into them on this occasion, for I do not think parol evidence necessary to make out the case ; though if if were necessary, I think I should admit it here. What are the facts 2 A man has made a Will and given his property chiefly to his wife, with limitations over in case of her death without iss'ue. She dies in his lifetime, and he makes a codieil varying" í^íb will in some particulars. Can it be supposed for a moment that the husband was ignorant, whether his wife died without issue ? I cannot presume it. 1 must and I do suppose that he knew intimately the state of his wife’s family and his own, which were the same* Proof is un« necessary. It is impossible to doúbt in such a case that a man knew the state of his own family. And in every case the relative situation of the parties is ,always brought to the view of the court, as essential to enable it to elupi* date the truth.</p> <p>The effect of the repuhlication in this case alone» seems to have been contested. It appear^ that there Was not much doubt at the bar, that the execution of .-a codicil referring to a Will, amounts to a repuhlication.-^ And there can be no doubt of it now, after the case of Acheriy and Vernon, reported in 1 P. Williams, 783» Which first introduced constructive re-publications. After the statute of frauds the court-fluctuated a long time$ sometimes it held that a codicil though distinctly referring to a will, was not a republication.*--l Vezey, 489 ; Ambler, 550, 571. Sometimes that it was a república» tion — 1 Vez. 437 ; Amb. 487..</p> <p>The case of Barnes vs. Crow,Teported-4 Bro. C. C. 2, and 1 Vez. jr. 486, decided independently of other considerations, that the execution of a codicil in all cases should bo an implied repuhlication of a will. This affords a certain rule, and has been followed ever since j except where as in the case of Stathmore vs. Bowles, it appeared distinctly on the face of the codicil, that the testator did not mean to republish the will. But whether we adopt the» doctrine to the extent it has been carried in England, or not, there can be no doubt the codicil was a republication of the Will in the case before us, in such a shape as to affect the personal estate, for it was not only annexed to, hut actually written on the back of the will, and refers to it; and even this, according to lord Camden, was sufficient to make it a republication of the will; though h© did not think a codicil not annexed was a republication of a will. — Ambler 573, 3, 4, Attorney General vs. Bow-sing.</p> <p>1 must thereforedecide that the codicil in the causé ‘ now under discussion, was a republication of the will. — » ^ mus^ no^ f°rg°&en> that this codicil imperfectly executed as to the real estate, though "a republication of the will, could not give effect to the dispositions made of the real estate„by that will, which was itself, imperfectly executed.</p> <p>Another question made in this case was, whether • the specific legacies shall be exempted from the debts, and the real estate brought to the aid of the personal estate to give effect to the exemption..</p> <p>It was said, in argument, that this was not only not practicable under this imperfect will and codicil, but that the testator did not intend it-; for be bad given the specific legacies subject to -the debts.</p> <p>This however is not correct. For. whatevewdoubts might have at first arisen as to the intent, from the first •words of the will, the subsequent words shew the real intent of the testator, to be that his real estate consisting of lotsin Columbia and lands adjoining should be sold, to pay his funeral charges and all his just debts.— Nothing can be clearer then, than that the testator meant all his debts should be paid out of the sale of these landed estates, aided by the sale of his cattle and horses, &c.</p> <p>Blit it is objected that the will and codicil being' both imperfectly executed, so as not to pass lands, this charge of the debts on the real estate must fail, even if jhe charge would have exempted the personal estate, and then the ordinary rule of law must prevail, which assigns the personal estate as the proper and primary fund for the payment of debts.</p> <p>A great deal of dispute and doubt formerly existed on the, question, what amounted in a will toan exoneration or exemption of the personal estate from the debts of the testator. In lord chancellor Talbot’s time, be laid down the rule to be, that the personal estate is the natural fund for the payment of the debts; and which, as against creditors, the testator cannot exempt without their consent. But against the devisee of land he ■ may, by appropriating his land as a fund for the payment of his debts. ' Bitt he said there ought to be express words or a plain intent to exempt the personal estate. — 3 P. Williams, 323, 4, 5, Hazlewood vs Pope, and cases there cited in note . (2;) 1 Bro. C. C. 454, Ancaster, vs. Mayer.</p> <p>But the personal estate would not be exonerated by the mere charge of the debts on the real estate ; express words or plain intention upon the whole will are necessary. — 9 Yezey, 447, AVatson vs. Brick wood ; 6 Yezey jr. 567, Bridges us. Philips ; 11 Vezey, 179,186, Hancox vs. Abby.</p> <p>A provision for the payment of the debts out of the real estate is not sufficient — >8 Yezey 295, 306, Milner vs. Slates; Ibid. 125, Harwood vs. Oglander.</p> <p>In the case of Leland vs. Shaw, decided hy lord Itedesdale, and reported by Schoals and Lefroy, 2 voL 538, the subject is luminously treated, and that eminent judge declared, that the case of Wehb vs. Jones, decided by the master of the rolls, (Sir Lloyd Kenyon,) in 1786; was the only one in which it has been held that,personal estate, has been exempted from the payment of debts and funeral expenses, without express words for the purpose, or such as to raise a presumption that the testator meant to make the personal estate the subject of a specific bequest, and therefore not liable to debts.; because specifically given as a legacy.</p> <p>And the difference between a direction to sell a real estate out and out, (either disposing of the residue by the will, or leaving it to go to the heir) and charging such real estate with the debts, has been long exploded as to its effect in exempting the personalty from the debts. — » Cas. Temp. Talb. 208, Stapleton vs. Colville; Ambler, 38, Inchiquin vs. French ; but see also 3 Atkins, 566 ; 2 Bro. C. C. 257; 3 Vezey, jr. 114, for another distinction not necessary for us now to pursue.</p> <p>It will still turn on the question of intent to change the nature of real estate to personal, and to follow the fate of the personal.</p> <p>In applying this law to the case before the court, there can. be no doubt that _ there is sufficient on the üiqjí of the will and codicil to shew the clearest intent in thfc testator, to change the real into personal estate, and to make it the fund to pay the debts. He orders it to be sold» and directs the proceeds of it to be applied to the pay* ment of his debts; and bequeaths the balance, if any, as money, to certain legatees. And these being specific legacies, I have not a shadow of doubt that if the will could b@ carried into effect, these legacies would be exempted.</p> <p>This brings us to the last question. As the will is not duly executed to pass real estate, and no sales of th© real estate can be made, but that must descend according to the act of 1791, must these specific legacies be made liable to the debts, and the lands be entirely exonerated?</p> <p>It was argued that the specific legacies are exempt of course from the debts, and that the lands must be applied first to the payment of the debts. First, — -Because they are specific, and are never liable to debts till all her funds are exhausted. Second, — -Because the testator manifestly intended that it should be soj and that though the will, and codicil are not executed so as to pass real estate, they may operate as evidence of thé intention of the “testator, to exonerate the personal estate so Specifically bequeathed; which will leave the real'estate liable to the debts, by operation of law, which subjects real estates to debts in this country, even without a plea of plene administravit, as it is said has been decided at law by the constitutional court. And that as executors may thus cause lands to be sold circuitously, they may do it directly to give effect to the intention.</p> <p>It is true, that by the general rule, specific legacies are exempt from the debts, Whilst other property remains sufficient to pay the debts. But this relates only to personal assets, and hot to real estate. This rule is drawn from the English law $ and to be sure the reasons for making this discrimination between real and personal estate, do not exist in so great a degree here as in England. The descent to the eldest son is broken by our act of 1791, which places all the children on an equal footing, as to real as well as personal estate. And lands are made more directly subject to debts here, by the act of parliament of 5 Geo. 3 c. 7, (Grimke 250,) which has been recognized in practice in this country. It is also true, that the judges have at times said, the various Scts have nearly reduced real to the same footing with personal estate. But the act subjecting lands to the payment of debts, was never supposed to have levelled real to an equality with personal estate, in-the administration of the assets of a deceased person. In the case of "Wilkinson vs. executors of Wilkinson, decided in our own court in 1791, we find the judges expressly' declaring that the personal property is the proper fund for -the payment of debts in the first instance. And in Hartly, Stewart and ethers, vs. Carson executor of Carson, decided in 1796, we find the judges in this court deciding, “ that the act of 1791, abolishing the rights of primogeniture, related entirely to cases of intestacy, and has left the laws for the administration of assets just where they were. It would, therefore, he too bold for this court to íevelalltheiawsand practice of the country in the mode of the payment of debts to what might be conceived to be the principle -of the law abolishing the rights of primogeniture, by placing real and personal estates on the same footing in all cases. And it does not even appear that this was the intent or spirit of that law.” This is directly to the point, and this law has never been shaken. And when we remember that notwithstanding the approximation of real and personal estate in many respects, the act of wills still maintains the same marked distinction between them, as to the disposition of the one or the other, we cannot but ágree with these learned judges, that it does not appear to have been the intention of our legislators to place them in all respects on the same footing. This is a question of great importance, and' ás'thc situation of real and persona! estate is very different in this country, from what it is in England, and there i¿ a great diversity of opinion at the bar, it might be as well to carry it up to the court of appeals.</p> <p>Now the order for the payment of debts in the. administration of assets is. well settled. -The first fund is the personal property not specifically bequeathed ; thefi, land devised (by an effectual will) for payment of debts, an(l not merely charged with the payment of debts j then ^esceu^e<^ estates; then lands charged (by an effee-tual will) with payment of debts. — -Harwood vs. Oglan-J der, 8 Vez. 125 and prior cases.</p> <p>But it is contended, that the will and codicil though not duly executed to pass real estate, manifest the intention of the testator to exempt the specific legacies j and leaves the real estate to the payment of the debts, to which it is subjected by law ; and this court will give effect to such intention.</p> <p>It would be a great satisfaction to the could; if it could protect and exempt these legacies from the debts according to the manifest intention of the testator. But how do we come at the intention of the testator ? By reading his will. But wc are not at liberty in this ease to read the testator’s will as it relates to the real estate* because it is not duly executed according to the statute. We may, indeed, as the clauses are blended and inseparable, give a formal reading to those parts which relate to the real estate; but we cannot give effect to them; else we should violate the statute law. They must be considered a nullity, a dead letter.</p> <p>Then how does the case stand ? Here is a will good only as to personal estate. It gives certain specific legacies. These must be preferred, and all the rest of the personal estate must be exhausted, before we can toucla these specific legacies, to assist in payment of the debts-But the real estate is not liable except on failure of the personal,, unless the testator expressly makes it so, by a will duly executed, so as to affect the real estate, which is not the case here.</p> <p>Some reliance was placed by the counsel for the defendant on this ground, that as the statute Géo. 2d, ch. 7. has made real estate liable to the payment ot debts, and as some decisions in the constitutional court have ■Settled, that they may be sold under judgments obtained against executors or administrators without a pica of .fcloneadministravitj shewing that the personal estate & éxhausted, that executors and administrators may sell lands directly, as well as to suffer them to be sold in this indirect way.</p> <p>¡F'» I cannot, however, agree to this. The former is the act of the law; the latter would be their own act, for . which they have no warrant, not having any estate in the land as they have in the personal estate. All their sales of the lands of this estate not perfected, so as to enable the purchasers to plead that they are purchasers for valuable consideration without notice, are void and of no effect. They cannot make a good title to the purchasers.</p> <p>With respect to Mr. Crayon, the case is very differ-, ent. There an exchange of lands had been made by the testator in his lifetime with another person, and possession mutually given; and the testator sold the land he acquired by the exchange : and the other person with whom he was dealing sold to Mr. Crayon what he had acquired by the exchange. I consider this as a complete tranfer of the property, so that the same should not be shaken.</p> <p>Upon the whole, we have come to the following conclusions.</p> <p>That the legacies bequeathed over on the events of the wife of testator dying. without issue, or unmarried, did not lapse on her death in the lifetime of testator, on account of the limitation over. That the limitation over was not too remote, but was good and effectual.</p> <p>That these legacies were protected from the debts of the estate, as long as there remained any personal estate, not specifically bequeathed sufficient to pay the debts. But that notwithstanding the plain intention of the testator to make the lauds subject to the payment of the debts, in ease of the personal estate, by ordering the x*eal estate tobe sold, and the money so applied, that intention cannot prevail; because the will was not duly executed according to the statute. And finally, that the law has not yet placed real and personal property upon an equality as to payment of debts in the course of administration.</p> <p>It i,s therefore ordered and decreed, that the whole personal estate of the testator, (beginning with that fieri: specifically bequeathed) be applied to the payment of the debts of the testator. And on failure of that, the defi-tie«cy shall be made good out of the real estate of the testator. That to effect this, the real estate be sold; and the amount sales be applied to payment of the balance of the debts; and the surplus, if any, be equally divided among the representatives of, the testator under the act of im.</p> <p>That Mr. Cieyon’s title be confirmed.</p> <p>It is also further ordered and decreed, that the sale of the lots in Columbia, made by the executors, under an idea that the will was duly executed, be set aside and declared null and void. And that the notes given by Judge Nott, he delivered up to him, to be cancelled.</p> <p>HeNKY W. Desaussure*</p>

The cause came to a hearing, and the judge delivered the following decree: This is a bill filed by the administrator of Mrs. Jane Ann Campbell, deceased, who was the daughter of the late Major Samuel Wise. The suit is brought against Mr. Joel Adams, one of the executors of the late Mr. J. J. Haig, who had been one of the executors of Major Wise.

Tub bill states that in the year 1811, George Ruff died intestate and without issue, leaving a widow Nelly Ruff, a mother, sisters and brother. That George Ruff during his marriage with the said Nelly, was seized of a valuable tract of land and ten negroes.

This case came to a bearing, and the judge delivered the following decree: This case originated at law, where defendants were enjoined from proceeding on a judgment obtained there, in an action of trespass, to try title to the lands in the bill described. In the suit at law, the complainant, Martin, was the tenant of Barton, in possession of the land, and need not be further noticed here.

<p>case iv;'.</p> <p>Tiie court will dissolve an injunction on the coming in of the an-sever of some of the defendants, though all the defendants have not answered.</p> <p>The court will not delay a creditor from pursuing and enforcing' fus remedies agi na-, his debtor, on the ground that some collateral sit-ourities,-which were intended as a benefit to the creditor, are entaic gled, and mcoiilro' ersy, among the debtors themselves.</p> <p>The cause retained. The collateral securities to be re-assigned.</p>

<p>The bill was filed to obtain payment of certain debts due by the lunatic to the complainants — 'and to settle the order of payment of these and other debts of the lunatic, and for other purposes.</p> <p>After hearing the case, the Chancellor delivered the following decree:</p> <p>This suit is instituted by the complainants, who are judgment creditors, against the committee of Hugh O’Neal, to recover from them certain sums of money in their hands, and those of other persons, in satisfaction of their claims.</p> <p>It appears that Hugh O’Neal, prior to his lunacy, was largely indebted to the complainants, and also to Samuel Maverick, who anticipating the insolvency of the said Hugh O’Neal, had instituted his action in the Court of Common Pleas, for the recovery of his demand. *</p> <p>That pending the action at law, the complainants, Bulows, becoming alarmed about their debt, obtained an injunction* against the said Samuel Maverick, to stay proceedings on bis action, until they could institute their suit ; and obtained a judgment contemporaneous with-his. That accordingly at the-■ term, 180— judg» incnt was obtained in favor of the said complainants, and the said Samuel Maverick, and executions thereon, simultaneously lodged in the sheriff’s office, for New-berry district. The said Samuel Maverick therefore, now interposes his claim, and by way of interpleader insista that he is entitled in equity to a priority of satisfaction on. his judgment. There are a number of points of minor importance, and which are deemed by the court immaterial in this case, insisted on by the counsel for the complainants. The great question in the ease is, whether the said Samuel Maverick is entitled to have his judgment first satisfied^ or whether the complainants shall come in, in average and proportion, according to their respective demands. And it appearing to the court clear beyond a doubt, that the said Samuel Maverick would have established his demand in the court at law, and thereby entitled himself to a satisfaction of his debt, had it not been for the interference of the said John and Charles Bulow, that in equity he must be considered as entitled to all the benefits and advantages which would have resulted to him, had it not been for their interposition :</p> <p>It is therefore ordered and decreed, that the several persons having cash funds in their hands, pay the same over to the said Samuel Maverick, in extinguishment of his judgment, and the residue, if any, be applied to the discharge of the respective demands of the complainants,- and other judgment creditors, obtained at the same time. And it is further ordered, that each party pay his own costs.</p> <p>From this decree there was an appeal, which was heard at Columbia, and the judges delivered the following judgment:</p> <p>The decree of the circuit court has given a preference to Maverick’s judgment; hut as Maverick before the inquisition of lunacy had not acquired any legal priority, and Ms judgment and the complainants were obtained .and entered upon the same day, they ought to be put upon the same footing. The injunction granted against Maverick on the application of the complainants, was for the purpose ofletting in their debt equally with Maverick’s, in the event of Hugh O’Neal’s lunacy.</p> <p>This having been found, these debts must he paid «•ateably and proportionably.</p> <p>It is therefore ordered and adjudged, that the decree of the circuit court be reversed, and that all iiio costs of suit he paid out of the lunatic’s estate.</p> <p>W. B.'James.</p> <p>Henry W. Desaus sure.</p> <p>Theodore Gailíarb.</p> <p>Thus. Waties.</p>

<p>The petition states, that the defendant contracted with the petitioners for a parcel of cotton, and promised to give them the Charleston price, deducting the expence of sending the cotton from Granby to Charleston. That in pursuance of the said contract, in July 180.7, they carried and delivered the cotton to Finley Holmes, of Columbia, agreeably to the directions of the defendant. Finley Holmes directed the same to Nicholas Hane, of Granby, to be sent by the, first boat to Charleston, for the defendant.</p> <p>That in the beginning of August 1807-, Mr. Hane shipped the said cotton, together with other bales, which the petitioners took down for Mrs. Hughs, on board of a boat for Charleston, on account of' the defendant. That cotton at that time was selling in Charleston from 20 to 22 dollars per hundred, and continued at that price for a considerable time after-wards.</p> <p>That placing confidence in the integrity of the defen* dant, they did not have the cotton weighed in Granby, ao as to obtain a receipt as to the weight of the cotton, but took a receipt for the bales, which they delivered to the defendant. That the defendant was in ft short time to go to Charleston, and promised on his return to furnish them with the weight and sales of the cotton, and to pa/ to them the amount thereof. That he did go to town, and on his return informed them, the cotton was not sold, as it had not arrived in town : — »■ That it remained in this situation until after the embargo was laid, and they again called on the defendant, who then informed them, that the cotton did not arrive in town until after the embargo was laid, that it was much' damaged and could not be sold.</p> <p>That in the spring of 1808, one of the petitioners, Samuel M'Clannahan, having business in Charleston and going there, requested the defendant to give him an order on his merchant for the cotton, that he might sell it. That the defendant did write to his merchant, Gil-laspie, and on the delivery of the letter, lie was informed, that the cotton had been shipped to Boston some tima before, by the direction of the defendant, so that ho could not get the cotton.</p> <p>The petition prays a discovery of the weight of thé cotton and price, and that the defendant may be coffin pelied to account with the petitioners for the same, and to pay over to them, what upon such account shall &jo-pear justly due to them'.</p> <p>To this petition an answer was put in — and the ■defendant albo filed a cross bill or petition, which the 'present. com pi ainants answered.</p> <p>The facts stated in the petition set forth above, 'were substantially admitted or established.</p>

In tliis case, tiio judge delivered the following decree: * All the facts stated by the bill of complaint are admitted by the answer, and they form the following case for the opinion of the court: Mary S. White died in May, 1812, unmarried ami intestate, leaving a considerable personal estate.

<p>This was a bill filed by the administrator of Mrs. Mehitabel Lide, against the representatives of the late Colonel Thomas Lide, for the recovery of the arrears of an annuity of SOI. bequeathed by the said Thomas Lide, to his widow the said Mehitabel Lide, by his last will and testament.</p> <p>The bill charged, that the said last will and testament was duly exeeuted on the 7th November 1787, by ’which the testator bequeathed 501. per annum to his said wife, during her natural life; to be paid out of the profits of his estate, in lieu of the portion to which she would have been entitled. And that the testator departed this ■life, leaving the said will in full force.</p> <p>That the widow received three years’ annuity, and no more ; and lived to the month of February, 1804 ; and considerable arrears were due $ for which the suit was brought. , -</p> <p>The bill also charged, that the defendants, the de-visees of the testator, had taken possession of, and were' in the enjoyment of the real estates devised to them, on which said annuity was charged. The bill prayed relief.</p> <p>The defendants in their answers, admitted that the; said Thomas Lide had made the will in question, at the time stated, wherein he made a bequest of 501. per annum to his wife 5 but they insisted that the said bequest was obtained by undue importunity, urged in the last moments of the testator, and by false allegations and pre-tences, made by Mrs. Mehitabel Lide, stating that .she was pregnant, and that the estate of her first husband, Mr. Irby, had turned out badly, and would be nearly insolvent, so that she would be in want; which pretences, it is alleged, were false and unfounded.</p> <p>The defendants also insisted, that an agreement had been entered into, by the said Colonel Thomas Lide, and the said Mehitabel, before their marriage, that neither of them should acquire by the intended marriage, any rights in the property or estate of the other; and that the said Thomas Lide had strictly complied with the said agreement, and had not set up any claims, or obtained any share of the property, to which the said Me-hitabel was entitled in the estate of her former husband, Mr. Irby, deceased ; and had inserted in his last will, a clause, releasing to the said Mehitabel, all the rights which he had acquired in her property, by virtue of the marriage between them. But that the said Mehitabel had obtained, contrary to the said agreement, an interest in the estate of the said Thomas Lide, by the importunar ties and false pretences above stated, a few hours before the death of the said Thomas Lide.</p> <p>The defendants admitted that they had taken possession of the lands devised to them ; and they admitted that only a small part of the said legacy, had been paid to the said Mehitabel, by the administrator with the will annexed; and they pleaded the statute of limitations against the claim for the remainder of the said pretended legacy.</p> <p>One of the defendants, James Lide, admitted and stated the facts set forth by the other defendants, and added, that he had offered the said Meiiitabel Lide, to pay her a certain sum, in full compensation of his proportion of the said annuity : But she refused to. receive ft> and told him it was not her. intention to require any* part of said annuity from said defendant, which infoiv mation had been confirmed since her death, by her ad/*" ministrator, the present complainant.</p> <p>Tiie defendants stated, that they had caused Duncan M^Crae, the administrator with the will annexed, of their father the said Thomas Lide, to he summoned by the ordinary of Marlborough district, to prove the said will in solemn form, which suit was still pen ding in the court of ordinary; and as the said defendants hau little doubt that on the probate of said last will, they should be able to produce such proofs of the improper conduct of the' daid Mehitabel Lide, in procuring the said clause, be¿ queathing her the annuity aforesaid, as would induce the court of ordinary to reject the said clause, they pray*' ed that the Court of Equity would suspend their decree} relative to the payment of the said annuity, which ivas ■¡¿té sole object of complainant’s bill.</p> <p>The court of equity accordingly suspended the hcar~r ing the cause ■ respecting the payment of said annuity, until the court of ordinary should decide on the validity' 'of the clause, in the will of the said Thomas Lide, boy queathing the same to the said Mehitabel.</p> <p>The cause was accordingly tried in the court of ar« dinary, and the parties went into plenary proofs as to the-due execution of the said last will and testament of the said T. Lide, and of the manner in which the said clause, be-, .queathing of the annuity of 50i. to Mrs. Lide, was obtained' tobe inserted; and Morgan Brown, who drew the said Iasi will, and inserted the said clause, was particularly examined relative thereto.</p> <p>After a full hearing, the judge of the court of ordinary was of opinion, that the said clause, bequeathing the said annuity to the said Mehitabel Lide, was not obtained by undue importunities, or by false pretences; and he established the said clause as well as the rest of the said will.</p> <p>From this sentenco of the court of ordinary, the children and devisees of the said Thomas Lide appealed, to the court of common pleas, according to the, pmviqiojp. of the 16th section, of the statute of the 13tit March, A. D. 1789.</p> <p>On this appeal an issue was made up, and the question as to the validity of the said clause of the will of Colonel Thomas Lide, which was in question, was tried before a jury in the district of Marlborough, who found a verdict against the validity of the said clause.</p> <p>A motion was afterwards made in the constitutional court, before, all the judges, for a new trial, on the ground that the verdict was against the weight of evidence. On. argument of that motion, the judges ordered a new trial; whereupon a second trial was had before the jury of the district, who found a verdict in favor of the validity of the said clause, in the said last will and testament. This, verdict was acquiesced in, and no motion was made for a new trial.</p> <p>All these proceedings were certified up to the circuit court of equity, sitting in the district of Choraws, in February 1811, whereupon judge Caillard, ordered a reference of the bill, which liad been filed in this court, for the recovery of said annuity, and the answers thereto, to the commissioner, to examine and report to the court what was clue on the said annuity : And the said commissioner made report that the arrears of annuity, including interest, amounted to g5,089 $ and that the administrator with the will annexed, having paid and delivered over the funds of the estate to the children and devisees of the testator, they were liable to pay the same, in the proportions reported.</p> <p>No exceptions being filed to this report, the same was confirmed by the decretal order of the court, from which there was no appeal.</p> <p>Afterwards, in June 1814, an application was made to judge Thompson, then holding the circuit court of equity at Che raws, for a re-hearing, in the nature of a bill of review.</p> <p>This motion was fully argued before judge Thompson, who being of opinion that the petitioner for are-hearing, not having shewn any error of law apparent upon the dec. cree, nor pretending to have discovered any newtestimo-ny, which could materially vary the merits or alter the decree, ordered and decreed, that the application for a re-hearing should be rejected.</p> <p>From this decision, an appeal was made, to the court of appeals in equity, which was argued very fully by Mr. Charles M. Lide, for. the appellants, and by Colonel Blanding for the respondent.</p>

The sole question in this rase arises upon tlie fol - lowing facts: William Gayle, died without issue, and intestate, leaving a widow, one of the defendants, and a mother, who is complainant. He was an illegitimate son.

<p>The complainant claims, as sister of the intestate, Matthew Burden, a distributive share of his estate, he having died without issue.</p> <p>It appears from a verdict found on an issue directed by this court, that Burden was the illegitimate son of the complainant’s mother. The question then is, whether any right can be derived by the complainant, from one thus spuriously related to her f</p> <p>I iiave felt the strongest inclination to support this - claim, and have been desirous of finding some ground which would authorise it; for although I think the best interests of society require that a bastard should not have the same civil rights, as one born in wedlock, and should not therefore be allowed to inherit himself, yet it appears to me too rigorous to extend this rule of policy to any claim to be derived from him, and especially to the claim of one who was born of the same mother. The rule is not applied to the issue of a bastard, and I should have been glad to find that it did not (as the counsel for the complainant contended) apply to any collateral relation. But after a full examination of the authorities. they appear too explicit on the point to leave any rooni for discretion. In 2 Bla. Com. 249» the common law is thus strongly stated: “ as bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies; for as all collateral kindred con-, sists in being derived from the s-ame common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred, and consequently can have no legal heirs but such as claim by a lineal descent from himself.” — . How then can the complainant, who is a collateral and nota lineal relation, inherit from the intestate ? It was supposed that Mr. Wooddeson, in his statement of the common law on this subject, has admitted an exception which is favorable to her claim. He says, vol. 2, page. 260, iC if the issue of a bastard purchase lands in fee, and die childless, although those lands cannot descend to any heir on the part of the illegitimate father, yet the heir on the part of the mother of such iirst purchaser may succeed.” It would be sufficient to observe, that the case contemplated by Wooddeson, is not like the one before' the court. It is the case of a collateral, deriving a title from the issue, (that is the legitimate offspring,) of a bastard, and not as here, from the bastard himself. Such a title is allowed to bo deduced through the mother, because the father’s blood having no inheritable quality, cannot" Convey it, and the maternal stream may therefore be resorted 'to. The same rule obtains in the case of an attainder, and for the same reason. The father’s blood being corrupted, is considered as extinct j but the mother’s furnishes a pure inheritable stream, by which the title may be conveyed. Á brother may therefore inherit from a brother, although their father was a bastard ; bat the case here is a sister claiming from a brother who was himself a bastard ; and upon this point Mr. Wooddeson has been as explicit as judge Blackstone. In the same passage quoted, he expressly says, “ a bastard can have no heirs except his own progeny.” In vol. 1, 396, he further says, eí a bastard may take an estate to him and his heirs generally; yet it will not come by descent tó his legitimate brother, born of the same parents., (in case-he dies without issue,) but will escheat. For a bastard, by the laws of England, is incapable of transmitting; real or personal property by inheritance, except to Jus Wife and his lineal descendants.” And again, page $91', “ if a bastard possessed of personal effects dies intestate, and without wife or children, the crown is entitled to such property.”</p> <p>It. is evident from these authorities, that by tho Common law, no collateral right can be derived from a bastard, being as he is emphatically called, nuiiius filias, he has no father cr mother, and can therefore have no brother or sister, but is regarded ana separate creature, unconnected with the human race by any links, except those which he- may form by his own progeny.</p> <p>It has been insisted, however, (and tho counsel ch icily relied on this ground,) that the complainant’s right is supported by the civil law, and that this ought to ieihernk; of decida!,-! with the court.</p> <p>The civil law would, no doubt, decide for the, complain;! nl, ansi no judge is moro disposed than I am, to draw from that rich fund of written wisdom 5 but the civil lav/ is not the authoritative law of this court j it becomes so only by adoption, and it can only bo adopted, where tho rules of the common law or of equity are, doubtful or silent. II(it the, common law here is plain and positive, and has been always followed by a court of equity. [Seo Newland on Contracts, 70; Pre. Cha. 475.] The civil law, therefore, can have no weight, and much less can It over-rale the established law. I am bound then, to dismiss the bill.</p> <p>Tho complainant) however, will most probably find relief elsewhere,: for there is little doubt, that the, legislature- will, on her petition, release to her, the share whir!; accrues to the state by the illegitimacy of her brother. This is so much the, practice, in England, that jüdsg Ilku ksfone. considers it as almost of course.</p> <p>The hill must be dismissed with costs.</p> <p>Thomas 'Watxss,.</p>

Tna bill filed in this raso was for the parpóse, of obtaining alimony out of the Inisbaud’s estate, and also to establish and have tho benefit of a deed executed between tho partios immediately before marriage, which it was alleged, was intended. (.0 .secure. ihe property of the wife, la possession and In expectation, to her separate use.

This case depended upon the construction of a deed of gift which a father made of certain personal property to a daughter who was then a married woman. Her husband disposed of the property — The complainants, who Wore the children of the donee, the daughter, contended that the father intended to give a seperate estate to their mother, not subject to the debts or the disposition of her husband. And of that opinion ivas the judge who tried the case, who decided accordingly.

The principal question in this case, arose on tlio construction of certain clauses in the will of Andrew Dee, which were as follows : “ I give and bequeath to my son John Lee, certain lands and negroes, (enumerated in the will,) to him and his heirs.” And in a subsequent clituse, after other beau DECREE.

This was a bill brought by complainant for a partition and account. The complainant, as stated by the bill, was the only child of Joshua Benson, deceased. Her mother had since intermarried with the defendant, John Bruce. The bill states, the defendants J. Bruce and wife to have had the management of the estate of Joshua Benson, ever since the death of the said Joshua.

The complainants filed their bill in January 1812, lor the discovery of cm tain slaves and their increase to which they set up a claim, and for au account of the hire and labor of said slaves, for a number of years.

This bill was filed by the children of the late John Compty, one of whose daughters had married Peter M’Quire, for an account of their father’s estate, and for the discovery of the title of their father to a certain lot of land in Columbia, which they alleged had been suppressed ; and also to set aside a sale of a tract of land, on Broad River, a little above Columbia, and commonly called the ferry tract.

After hearing argument on the case, Chancellor Waties delivered the following decree: There have been several questions made in this case, but the decision of one will preclude the necessity of the consideration of any other. The defendant is the executor of his father, John Dixon, de„ ceased, and also the guardian of the complainant, Mary Perry, who is his sister.

The bilí stated that CoT. Douglas Starke, one óf the ¿Realtors of General Wm. Henderson, who'was the father of Mrs. Taylor, placed in the hands of W. R. Davis, at his instance, some funds of the estate hi' General Hen-flerson, for the purpose of purchasing some slaves for Miss Henderson, niece of said VV. R. Davis, who was. then an infant, about six years of age, and has since intermarried with Simon Taylor. And the said VV. It.

ÍN this case tlie testator, Mr. I. A Summers, being possessed of a very considerable estate, disposed of the same, by his last will and testament, chiefly in specific legacies; and he imposed the duty on bis executors of dividing his estate, according to bis will, and supplying the loss of any of the specific legacies, by the purchase of other property in its place.

<p>(use esxtí.</p> <p>This coart will give relief by perpetual injunction against ajuclg. meat at law, obtained by an assignee on abend to make titles to land, xvberc no conveyances bad been made or offered, conformably to the bond, till after the judgment had been made ¡ the representatives of the. -S&ligor being now ready to make the conveyances; and that, notwith» standing an adverse possession and claim by a third person.</p> <p>Under the circumstances, the court thought the assignee bound to take the title with all its risks and imperfections.</p> <p>The court will not direct the commissioner to examine the title 'Where it sees that to be unnecessary.</p>

The dispute in this case is between the complainants, who claim under articles made previous to the marriage, and the defendants, who are creditors, and have been enjoined.

<p>The application to the court in ibis caso is, to render of no effect the sale of a tract of land, purchased by thculefendants on the eighth of December 3 810, as the property of Moses Lindsey, to satisfy a judgment obtained against him, at the suit of Evans & Co. entered up on tlie 7Th of May 1808,</p> <p>The complainant all edges that the land was not Lind* Sey’s/but his the complainants, and that the defendants were informed of this fact before the sale by the sheriff. The complainant states in his bill, that lie purchased the land on or about the 1st of January 1808, from Lindsey* and the defendants in their answer admit that they were informed of it. They say, that they were informed that the complainant did purchase the land of Moses Lindsey, as stated in the bill, at the lime therein mentioned.”</p> <p>Lindsey it appears, com eyed the land to the complainant O’Neal, for $675, by deed, dated the 27th of April, 1808. There was a mortgage on the land from the Conners, the former proprietors of it, to Inman, to secure $350 duo to him. OvNeal was to pay this debt, ami credit was to he given to him for so much out of the $675. He settled with Barret Inman’s agent by giving bis note for the amount of the debt due to Inman, and Barret gave him up the mortgage, with a receipt on it in full, dated the 31st of December, 1808. To assert that +hc defendants wore purchasers at sheriff’s sale without matice, would be to contradict tbeir own admission and Jones, a witness, says, that notice of O'Neal’s purchase Of the land was communicated to them by him, before the land was levied on; and the mortgage to Inman was oil record in the proper office. Lindsey’s conveyance to ONeal gave him a legal title to the land on the 27th of April 1808, and the judgment against Lindsey was-not entered up until the 7th of May following: Besides the mortgage given to Inman by the Conners in 1805, was a subsisting lien on the land : no satisfaction was entered on it in the office: the receipt on it does not appear to have been even known by the defendants : — The complainant states that he bought it up with a view to strengthen his title in this way. The mortgage must therefore bé considered as a subsisting lien on the land, whether owned by Inman or the complainant.</p> <p>It is strongly insisted that I should send this matter to a jury. The complainant had a right to apply to this court for a discovery, from the defendants, whether' they knew of his purchase from Lindsey, before they made their purchase at sheriff’s sale, and to set up his mortgage. I see no good purpose that can be' answered by directing an issue at law. Both complainant and defendants derive their title from Lindsey. In a court of laW the plaintifflabors under disadvantages: He must recover there by the strength of his own title, and not by th© weakness of his adversary’s. The defendants onght nob to be allowed to take advantage of their own wrong.— They purchased the land as the property of One map# knowing it to be the property of another, and to induce the sheriff to sell it, Fernandis says, gave him a bond ef indemnity. The complainant at the time of the Sale Was a lunatic, he could not protect his own rights. One of his committee was dissatisfied with what had been done, and Mr. Jones says, always declared he intended to en» deavor to get the land back.</p> <p>The prayer of the bill is, that the defendants be compelled to convey the land to the complainant, who by the finding of the jury has lately been declared sane, f shall not order this, lest by doing so, it might affect th© rights of persons not parties to this suit; but declare thje sale made by the Sheris' to the defendants void.</p> <p>And it is ordered and decreed, that they do deliver their title from the sheriff for this land to the commissioner to be cancelled, and that they do pay the. costs of this suit. The defendants must account to the commie* sioner for the rents and profits of the land.</p> <p>Theodore Gaiddard.</p>

Fii»st¿_That interest ought not to he charged to the estate of Joseph Walker, on monies received by him on behalf of the estate of Edwai*d Walker, as guardian of' the complainants. Second, — That too much rent was charged to Joseph Walker’s estate in the report, for the rent of land. II-ENiur W. Djesaussuee. From this decree there was an appeal, on the ground that the debt recovered, ought not to rank as a bond debt.

John Fortune was seized and possessed of a tract of land in Fairfield District, and devised the same by his last will and testament, duly executed, to his wife, for the benefit of herself and his children, except his eldest .son, Wt». Foi’tune, whom he excluded. He authorized the sale and division of the money it might bring as aforesaid, and died leaving his will in full force.

<p>«45* arre**.</p> <p>A wife being abused and ill treated by her husband fled to her re--lations, but was induced by his promises of amendment to return. Sire soon after again left him and returned to her relations. Although her return to him is a waiver of objection as to his prior ill treatment, yet: the court will receive evidence of his prior ill conduct, to aid the pre»' numptionof harsh treatment after her return, of which there was no very positive proof. The voluntary settlement made by him after marriage, though certainly not gefed against prior creditors, was good as between the parties.. One half the property included in the deed, vested in the hands of the trustee therein named, for the use and maintenance of the complainant and the younger children, remaining with her, and to pay half the debts. The other half of the property to remain in defendant’s hands for his own use and support, and that of his eldest child, unalienable by him to any other purpose, and subject only to such debts as have a legal right to be satisfied out of it. Defendant or-^red to enter into a recognizap,ce before the commissioner to keep the peace towards his wife, who is protected in living separate from him, pefendant to pay costa. ,</p>

<p>case r.xssir.</p> <p>The estate of the wife being directed by a decretal order of 1795, to be settled to the use of herself and husband, and the formal deeds being not as yet executed ; the court, on application of the parties, and new acquisitions of property, in 1808, decreed the whole to be conveyed in trust for the separate use of the wife ; the formal deeds are executed, and by order of the court, bear date as of the time of the original decree. This settlement shall not operate to bar a creditor of the husband, whose demand arose subsequently to 1795, and prior to the order of 1808 ; but such creditor shall be paid out of the husband’.*! interest in the annual proceeds of the property, as the decree of 1795 imported. And the debt in this case having also arisen from supplies advanced for the benefit of the trust estate, though charged personally to the husband, is, according’ to former'decisions in this court, a d'stinct and valid ground of relief! and the creditor is relieved on both grounds.</p>

This case was argued before Chancellor Thompson? who delivered the following decree therein: In consequence of a marriage intended to be solemnized between Peter Horry and Margaret Guignard. the said Peter Horry, on the 9th February, 1793, executed a,marriage settlement, wherein it was stipulated, that he should settle on the said Margaret, the sum of five hundred pounds sterling, in lieu ofthe fortune and property of the said Margaret, which amounted to that sum and…

<p>A. conveyed all his property real and personal to his natural son 'B.by deed, to take effect after bis, the donor’s death; but if his son should die without any heir of his body, then the whole of the then remaining; property to be equally divided between the children oí his three brothers.</p> <p>A. kept possession of the property until his death, leaving a will, by which he confirmed the deed. B. died without leaving heirs of his body, but leaving'a wife alive. The limitation over is not too remote. The deed is good as a covenant to stand seized to uses, and the re-maindermen take.</p> <p>The widow of B. is entitled to dower. The issue of the slaves born before the death of B. go to the remaindermen.</p> <p>CASE LSXXV.TT.</p>

The bill stated that the complainants were judgment creditors of Thomas H. Wade, and had sued out executions on their judgments, which were lodged in the office of Wright G. Tyson, then sheriff of Richland district, and continuing to be so till his death. — That the said Tyson collected the amount due on their judgments some time in the beginning of the year 18J6, and died, soon after, without paying the same over to the complain ants. — That since his death John Bynum hath…

<p>case bkhx</p> <p>The heirs apparent of an idiot, whose estate Was in the hands af a committee, being weak, illiterate and necessitous, and finding a difficulty n procuring and perpetuating the evidence of their relationship, employ an agent to transact the business for them, at a commission of ten per cent on the amount'to be recovered.; tlve agent afterwards purchases their interest in the estate, at about one fourth its ultimate value ; when the estate is recovered, he takes from them in pursuance of the said pui-chase, a conveyance of their interest, and a power of attorney to prosecute the decreej and to receive to his own use their shares of the estate yet to be accounted for. The contract of purchase set aside on the ground of gross inadequacy of price, connepted with the weakness and necessities of the sellers ; and on the further ground that the agent was legally incapacitated to purchase from his p. incipal the estate which was the subject of the agency, so long as this relation of confidence continued.</p> <p>The after conveyances held no confirmation, having been made ur>-der the original impression, and a belief that they were bermd by the first contract, and during the continuance of the necessities of the sellers.</p>