#### DANIEL McLAURIN *and others against*JOHN FAIRLY *and wife.*

A limitation by deed “ to her and *her representatives"*can only mean to her executors and administrators.

Where a bill set forth that certain slaves were sold at auction by an adminis-tratrix, and a bill of sale made to B, the purchaser, but it was agreed that he should hold the property, in trust, to indemnify himself against certain' debts, in which he was surety for the intestate, and he paid no money; that-the debts remained unpaid for nine years, and that in the meantime B married the administratrix, and took with her the slaves in question, it was *held*that these allegations were sufficient to make out a case against B as succeeding to the trust his wife was under to distribute, and having the . legal estate by the bill of sale, the property could be followed in his hands, ’ • and *held further,*that the statute of limitations did' not run against the dis- - tributees.

Cause removed from the Court of Equity of Bichmond.

' Lauchlin McLaurin, the father of the plaintiff, was indebted to James Patterson in the sum of $700, and to J. 0. Mc-Eachin in $1400, for which his notes with the defendant, and his brother, J. C. McLaurin, as his sureties; said Lauchlin died intestate, in the year 1843, and his widow, the defendant, Nancy, (now) Eairly, the mother of the plaintiffs, administered on his estate. After their father’s death a new note was givfen to Patterson with defendant, John Fairly, as principal, and John C. Laurin and defendant, Nancy, as his sureties, and to McEachin, with defendant, Nancy, as principal, and John Fairly and J. O. McLaurin as sureties. An order of court was obtained by the administratrix to sell the slaves belonging to the estate for the payment of the debts, and an agreement was entered into between plaintiffs’ mother, the administratrix, and said Fairly, that he should bid off' the slaves for the benefit of the widow and children of the said Lauchlin, and should hold them, as plaintiffs say, to indemnify himself for, and on account of his liabilities in the two notes aforesaid, and after these were paid off, he would reconvey the said slaves to the widow and children of the said Lauchlin. lie did bid off the slaves, six in number, for the sum of $1459, and having received a bill of sale from the administratrix ; he *376at the same time executed a deed as follows: “ Whereas, 1 did on 12th of Feb., 1844, receive from Nancy McLaurin, ad-ministratrix of Lauchlin McLaurin, deceased, the following negroes, (naming them,) for the sum of $1459; now, if the said Nancy,- or her representatives, shall pay two certain notes, one due James Patterson, where I am maker and J. C. McLaurin and Nancy McLaurin surety; the other note payable to James C. McEachin, Nancy McLaurin maker and J. C. McLaurin and myself securities, with all interest, costs and damages that may be accumulated on said notes, I, the said John Fairly, bind myself, my heirs and assigns, to make to her or h6r representatives a title to the above mentioned negroes.” Fairly paid no money on the executing of the bill of sale to him, and did not take the slaves into his posses sion, but left them with the said Nancy until he married her., the said Nancy, in 1852, when she, with the slaves, removed to his house, where they have been ever since. The bill alleges, that these two notes were not paid off by. the defendant, Fairly, until after he married the widow in 1852, to wit, in 1853, and that at this time the slaves had increased to the number of fourteen, and were worth three times as much as the defendant paid on the two notes, which was $3200.

When the said notes were paid off none of the plaintiffs were of age ; the plaintiff, Daniel, arrived at full age April, 1853, Mary Ann, in 1858, and the other two plaintiffs, Cath-arine and Margaret, are still under age. They aver that they never were informed by the defendant. John, or their mother, the other defendant, that Fairly intended to insist on an absolute estate in said slaves until a few weeks before this bill was filed. The prayer is for a distribution of the slaves and an account of hires, &c.

The answer of defendant, John Fairly, says, that at the time he bid off the slaves, in question, there was no contract between him and the administratrix as to bidding them off in trust for her and her children, but that knowing his liability on the two notes, and being the only responsible person, he run up the property to make it bring its utmost value, and *377that he thinks it did bring its full value; that after the sale, for the ease and accommodation .of the family, he entered into the- deed set out in plaintiffs’ hill.. He admits that he paid no' money at the time of the execution of the bill of sale, but he says he interposed with his credit, and procured for the estate a long indulgence, which it otherwise could not have obtained ; that afterwards, having been urged by the creditors, he paid the debts, and then considered the negroes Iris. He also relies upon the statute of limitations. '

. There was replication and proofs, and the cause being set down for hearing, was sent to this Court.

*Strange*and Buxton, for the plaintiffs.

*Ashe*and *Shepherd,*for the defendants.

■PeaesoN, C. J.

The words, “her representatives,” in the deed executed by the defendant, Fairly, to Nancy McLaurin, the other defendant, (now his wife,) dated 12th of February, 1844, cannot be made to mean *her*children, and can have no other meaning than “ her executors or administrators.” It is true, by this construction, the words have no legal effect, and must be treated as surplusage. So, that the deed will operate-precisely as if these words had not been inserted, but the Court is bound by the words used in the instrument, and cannot substitute other words, although it may be highly probable that the latter would express the actual intention of the partie's; for the province of the Court is to construe the deed made by the parties, and not to make a deed for them. From the relation of Mrs. Fairly to the plaintiffs, and her duty to them, as distributees of the intestate, it is probable, nay, almost certain, tkat her intention would have been expressed by these words, “ Now, if the said Nancy McLaurin, or *those she*represents, shall pay two certain notes,” &c.'; but the words used are, “ her representatives,” and the former cannot be substituted in their stead. Where the words used are susceptible of two meanings, and from the relation of the parties — the object in view, and other matters, which the Court *378is at liberty to call to its aid in the construction of instruments, the sense in which the parties intended to use the words is shown, the Court will adopt the construction, which will give effect to the intention, although it may not be the most obvious one — or that which, apart from the intention, would have, naturally, suggested itself; indeed, so solicitous are the courts to carry out the intention,, whenever the words used will allow it, that in many instances, sentences will be transposed, rules of grammar violated, and the ordinary import of words departed from ; many illustrations will suggest themselves to every one familiar with “ the books.” This will occur to any one who has read Blackstone; A makes a feofment to B, for life. Who’s life? It may be for the life of A or B ; the ordinary construction is, that it is for the life of B, as it is most beneficial to him, and deeds are to be taken most strongly against the maker, but if it appear by the deed itself, or by the conveyance, under which he derives title, that A had only an estate for his own life, then B will take an estate for the life of A, for otherwise the conveyance would be wrongful, and the estate would be forfeited, if A should make a different estate from that which he holds, hence, there is a presumption that the intention was to make an' estate for the life of A, and the Court will adopt that construction. If the feofment had been to B for his *own*life, there would have been no room for construction ; on the same principle, in our case, there is no room for construction.

There is, however, another view of the case made by the allegations of the bill, on which the plaintiffs are entitled to a decree : i. e., as administratrix, Mrs. McLaurin held the slaves in trust for herself and her children, the distributees of her intestate, subject to the payment of debts; by the arrangement which she made with the defendant, Fairly, for the purpose of indemnifying him, as security, on the two notes, and saving to her the right to redeem the slaves, which was carried into effect by offering them for sale, and Fairly bidding them off. and taking a bill of sale *withoutpayinig any consul?*«•ration, and executing the deed to Mrs. McLaurin, the legal *379title vested in Fairly, but he took subject to the same trusts that attached to the .property in the hands of Mrs. Mc-Laurin, of which he had full notice, as appears on the face of the deed; consequently, the *cesi/ms qui -trust*have a right to follow the fund in his hands, and convert him into a trustee, subject only to his right to be indemnified as the surety of their father, which they offer to do. The suggestion, that this arrangement was made between Fairly and Mrs. Mc-Laurin, with an intent to defraud the other creditors of her intestate, and, therefore, a court of equity ought not to carry it out, coinés with an ill grace from them, and is no bar to the equity of the plaintiffs, because there is no proof of any debt of the intestate remaining unsatisfied, and there is no ground on which the plaintiffs can lose their equitable interest, because of a supposed fraud on the part of their trustee, in which they did not participate.

There is no bar by the statute of limitations or lapse of time: No time is fixed for the payment of the two notes; Fairly married the trustee, whose duty it was to act for, and take care of the interests of the plaintiffs before he paid the notes, to say nothing of the fact, that all of the infants were under the disability of infancy at the first of the transaction, and some of them remain so still.

• The plaintiffs are entitled to partition, and for an account of the hires subject to the expenses and other proper allowances.

PeR Cueiam. Decree accordingly.