#### JOHN TINNIN AND WIFE *against*JOHN WOMACK AND OTHERS.

When property is bequeathed to the sepate use of A during her natural life, free from the control and not subj -et to the debts of any future husband, with a limitation over to such elnid or children, as she may leave surviving, and if she die without leaving ch-.ld or ch.ldren, to such child or children of B as may be living, and no trustee was appointed : Held, that C, the executor under the will, became trustee, and is responsible lor the forthcoming of the pioperty at her death.

Cause set for hearing upon bill and answer, at the Fall Term, 1853, of the Court of Equity, for Chatham county, ■and transferred by consent to the Supreme Court.

The bill was filed by Tinnin and his wife Frances against John Womack, executor of Joseph W. Small, and against several others of the name of Bain.

It alleged that in 1850, Joseph W. Small, the brother of the complainant Frances, died, after having made his Irst will and testament, and appointing Womack his executor. The will contained the following clause: “I desire and bequeath all my estate and property, of every kind and description whatsoever, including everything which I own or am entitled to, whether in possession or in action, to my sister Frances Small, during her natural life, and at her death to such child or children, as she may.leave surviving her. And if my said sister should die, without leaving any ¡child or children, surviving her at the time of her death, .then, and in that event, to such child or children of my uncle, William T. Bain, as may be living at that period. All the estate and property given to my said sister as aforesaid is for her sole and separate use, or for her exclusive benefit, so as not to be under the control or in any way subject to the contracts, debts, liabilities, or incumbrances of any husband that she may hereafter marry.”

Frances Small married the complainant Tinnin, in 1852, and they have applied to the defendant Womack to pay over *136the property given to Frances, lby tlie above will. Tlie defendant declined doing so, until his duty was clearly defined by a decree of a Court of Equity. Whereupon this bill was filed.

The defendant Womack admits the truth of the allegations contained in the bill, and asks the Court to declare the true meaning and construction of the will, — whether he is constituted a trustee for the complainant Frances, during her natural life, and whether he is bound to deliver the property to the husband of Frances, without- receiving a- forthcoming bond.-

*Waddell and J.- IT. Bryan,*for the plaintiffs.

*Ilaugliton and Winston,*for the defendants.

Peakson J.

We are of opinion, that the defendant is made a trustee, and, as such, it is his duty to hold the property for the plaintiff Frances, during her coverture. This construction is necessary, in order to carry out the intention of the testator, which was to secure the property,.- and have the profits applied to the separate use-and maintenance of liis sister, free from the control of her husband,, so as not to bo subject to his debts or contracts. This can-only be done by the intervention of a trustee, and as the legal estate was vested- in the defendant, by his appointment as executor, it must remain in him as trustee, for there is no person to whom he can pass it during the life of the-plaintiff Frances. It is the duty of the defendant, as trustee, to see that the property is -taken care of, and the profits applied according to the directions of the will: for this purpose he may retain the property in his own possession, and manage it himself or he may, if he chooses, deliver it to plaintiff Tinnin, and let him manage it. But the responsibility will be on the defendant, and he is at liberty to require-a sufficient bond for his protection.-

*137This case is certainly different from that of a legacy to one for life, with a limitation over. There the tenant for life is entitled to the legacy; he has nothing more to do with it. Here the tenant for life is not entitled to the legal estate, and consequently it must remain in the defendant as trustee. The defendant is entitled to his costs.

Decree accordingly.