#### JOHN CARSON, Exr. of W. M. CARSON and others *against*GEORGE S, CARSON and CATH. CARSON, and others.

Whtrp a deed recites that it is made in consideration of good will and affeqtton to A the wife of B, and the children of A and B, namely, 0, D, <fcc., *and suchas they may have hereafter,*and property is conveyed by it to Bin trust “ for the children aforesaid and such as may be bom aná-begotten by the said B hereafter.” The trust is for the children ' of A and B, and the children of B by an after taken wife, have no interest in the trust property.

B having power by the deed to him to advance the children oí hirusel1 and A by conveying to them or any of them, a portion of the trubr property, on the-6th January, 1850, convrys to his son John, a child o himself and A, a part of the trust property by way of advancement, as the deed declares, and cn the same day John re-conveys to B the same property in consideration of the natural love and affection he-bears his half brother and sister,, the children of his father by an afcet taken wife, iii trust for his half brother and sister, with power toB to convey the property to the *cestue que trust*by deed or will, and B by his will does devise and'bequeath the property to his'said two children, his will is inoperative, ándthe children by the lastmarriage'take nothing under the deed from John.

The case of Litile *vs.*McLendon,5 Jones Eq. 219, cited and approved.

In, May 1842, Jonathan L. Carson and George M. Carson conveyed, to William M. Carson lands, slaves, and other personal property, by a deed which recites that it is made in consideration of the sum of one dollar, and the further consideration of the good will and “ affection the' grantors have for. Almyra Carson, the wife of William Carson, and the children of th8 said Almyra and William namely, John, Martha M, Mary M, Matilda A, and William, and *such as they may have hereafter”*After 'describing the property and limiting it to the grantee, his heirs, administrator, &c., the-deed declares “that the said William shall hold and possess the property for the sole and *25separate use of his wife, the said Almyra,- and the children aforesaid, and such as may be born and begotten by the said William hereafter, “and shall have power to receive and appropriate the proceeds, &c., towards the mainten anee of- his said wife and the children aforesaid, and.such as he may- have hereafter, and shall have power to apply the samé towards the education-of the said children, and as they come to years of maturity to advance the same with such part of the said property .and. its increase as to him shall seem meet,” “ and it is also provided, that in ease the said Almyra shall depart this life before the said William, then her interest in said property of all kinds is to cease and determine, and the said Williatofsball not only have power by deed to advance his said children out of said property in his lifetime, but he is hereby fully authorized at his death, by last will and testament, to devise and bequeath the said property and its increase to his wife and such of his children, as he shall deem right, and in-case he shall dio without a last will -and testament, then the said property, if his said wife be alive, shall be divided according to the laws regulating descent and dower, and the laws distributing personal estate; and the said William-is nst to be liable to account to his-said children. It being the true intent of this conveyance to proyide for the wife of the said William and ‘his present and future children, and to allow him to-apply the property at his discretion to the benefit, support, nurture, education, and advancement of said wife and his present and future children.”

Mrs. Almyra Carson died in 18 and William M, Carson married again and had two children of the second marriage, the defendants, George S. and Catharine.

On. the Oth day of January, 1860, William ..M. Carson, by a deed purporting to be in consideration of the natural love and affection he bore to bis son, John, (a son of Al-myra,) and for the purpose of advancing his son,, and to be *26made in execution of tbe power given to him by tbe deed from Jonathan and George Carson to him, conveyed to bis son a part of the property real and personal, and on the •same day, John Carson re-conveyed the same property to William M. Carson, in consideration of the natural love and affection he bore to his half-brother and sister, in trust-for his half-brother and sister, George S and Catharine. In 1362 William M. Carson died testate. By his will ho devised and bequeathed the property .conveyed to him by John, to George S and Catharine Carson, and appointed John'his executor, who qualified and sues as such.

The other parts *of*the will are not here noticed because-the court declines in the present stage of the cause to decide the questions arising thereon. ,

*Merrhnon for*the plaintiff. .

*Fowle*for the defendants.

Battle, J.

The main question presented in this case, and the only one which at present we think it proper to decide, arises npon the construction of the deed executed by Jonathan L. Carsoh and George M.-Carson to William M. Carson, on the 6th of May, 1842, in trust for his wife and children. The question is whether the trust in favor of the-children, is confined to the children of the trustee’s then wife Aimyra, or does it embrace also the children which he had by bis second wife Catharine.

We are clearly of opinion, that upon any admissible construction of tbe deed) it includes tbe children of the first wife only. The recital of the consideration on which the deed was made is the sum of one dollar, and “ the good will and affection they (the grantors) have for Aimyra T. Carson, wife of said William and the ehildren of the said William and Aimyra, namely. John, Martha M, Mary M, Matilda H, and William, and such as they may have here *27after.” From this recital it is manifest that the purpose of the grantors to provide for* the then wife of the grantee and such children as he and she then had and might have thereafter. The expression “such as they may have hereafter,” is too plain to admit of any other'interpretation. In the clause which declares the'tmst, it is said that the grantee saall have and hole the property conveyed “ for the sole and separate use of his-wife, the said Almyra, and the childreñ as aforesaid, and such as may be bom and begotten by the said William hereafter.” It is contended for the cuildren of the second marriage, that the last words of this clause, extend the trust to any children which the grantee might have by say future wife. This would be so, if the words were to be coosidered alone, unconnected with any thing else in the deed; but that would violate a fundamental rule in xhc construction of deeds, “ that the construction^ be made upon the entire deed, and not merely upon- disjointed parts of it.” *2 Bla.*Com. 379. These words “ and such as may be born and begotten by the said William hereafter,” must be considered with reference to the recital of the consideration, which evidently is the good .will and affection which the grantors had for their brother’s wife Almyra, and the children which he then had and might thereafter have by *her.*Why the grantors should wish to exclude the children, by any mure wife, we do not know. It ma.y have been - an inadvertent-omission, but if it were, we can not supply it

There is a subsequent clause of the deed which provides “that if the said Almyra shall depart this life before the said-William, then and in such case, her interest in said property of all kinds'is to cease and to determine.” This is also urged as a manifestation of intention, that shé and her children were not the only objects provided for by the deed. It seems clear to us that the only purpose of this clause was to prevent the husband from taking any inter*28est in the property *jure mariti.*The whole deed shows that his brothers thought they could not convey the property or any part of it, to be held by. him for himself, and we have no doubt it was for the reason stated in the bill, that he was largely insolvent, and that if the property were conveyed to him without any trust declared in favor of his wife and children, it would be taken to pay his debts. It was known to the person who drew the instrument that the equitable estate which the wife was to take in the property, would, unless it were provided against, become her husband’s uppn her death ; and hence the clause in question was inserted to prevent that consequence. The making her interest in the trust progerty cease and determine upon her death, had the same effect in favor of her children, as the limitation of it over to them would have had. See Little *vs.*McLendon, 5 Jones Eq. 216.

In all the clauses of the deed following that which we have just noticod, it will he seen that the grantee’s wife Almyra and her children were the'oniy persons in the contemplation of the parties to the deed ; and such being the case, the hardship of excluding the children of ihe grantee by his second wife, no matter how great it may he deemed, can not induce the conrt to adopt a construction in. oppo-sitiofftfco the plain meaning of the instrument.

Having ascertained that there is no trust declared in favor of the children of the second marriage, in the deed executed to William M. Carson by his brothers, we are of opinion that he acquired no right to give to such children by deed, will, or otherwise, the property, part of the trust fund, which he convejed to his soti John on.the 6th day oí January, 1860, and-took back by another conveyance of the same date. The deed to John pm-ports tp he an advancement to him by bis father in execution of the power conferred on him as trustee : 'hut the deed of re-conveyance executed at the same time, shows that, the true pur*29pose wab not to advance tbe son, but the children of the second marriage. The execution of the two deeds is in effect bat one transaction, and a court of equity can not allow a trustee to change the objects of nis trust by any such contrivance.

There are other questiohs presented by the pleadings, which we are unwilling to decide without the aid of an argument. One of these questions is, whether the children of Willian M. Caraen by his first wife, had during the lifetime of their father, such an interest in the trust property not advanced -to them by their father as trustee, as survived upon the deaths of some of them to their respective ad-ministra tors. A second question 'is, whether the trustee had power to devise and bequeath by his will any part of the trust property to the children of his deceased daughter Martha Burgin. .

Tiles’; questions will bo reserved for future consideration : but there may be á decree , now declaring that the defendants Catharine Oarsún and George S. Carson, children of William M. Carson by his second wife, do not take by the will of iholr father any part of the property real or personal conveyed 1o their father in trust by his brothers Jonathan L, Carson and Oeoreo M. Carson, he having acquired no power to devise and bequeath it to them by reason of the conveyances of the same to and from liis son John on the 6th of January, 1SG0. There may also *ps*a decree; for the sale oí the land belonging to the trust fund, not specifically given or devised by the trustee fo any cf his children. &nd the parties may have a reference for'an account of the trust fund, if they desire it. ' *