#### Arthur Butler and others, v. Robert Godley, adm'r. of Mary Godley, dec’d.

From Beaufort.

A man cannot hold *in trust*for himself; — therefore, when a negro slave was conveyed to A in trust, for A for life, with remainders *over*— Held, that the whole interests vested in A absolutely, and the limitations over could not take effect. '

In July 1792, *Elias Godley*and others, heirs of *Nathan*Godley, entered into a written agreement with *Mary Godley,*his widow, by which it was recited, that the said *Nathan*had by" his will made no provision for his widow, and that she had taken the same into consideration, and that it had been mutually agreed between the parties that she should receive from the heirs a negro girl named Lucy, for her natural life, in full satisfaction of her dower and other interest in her husband’s estate, real and personal: — and the heirs in consideration thereof, covenanted as follows — “to furnish the negro within eighteen months, and a good and lawful title to make unto the said *Mary,*during the term of her natural life, and after her death to go to her daughter *Betsey Godley Butler,*if living, and to the heirs of her body lawfully begotten, if any j but in case of the death of the said *Bet-sey,*before the death of her mother, then *Mary*her mother to keep possession during her natural life, then it is the true intent and meaning hereof, ttiat the said negro return to the said heirs of the said *Nathan*Godley, deceased/’ &c.

*95In September 1793, *Elias Godley*and others, the Ex-ecutars and heirs of the said *Nathan*deceased, executed a deed, (written on the same sheet with the agreement) the material part of which is as follows: “ we have on the day of the date, *delivered*to *Mary Godley, upon trust,*for the purposes in the annexed agreement, a certain negro girl named *Lucy;*which said negro girl aforesaid, for the purposes assigned in the annexed agreement, and for the consideration therein set forth, that is to say, *Mary Godley’s*part of *Nathan Godley’s*estate, her deceased husband, we the said *Elias Godley,*&c. do by these presents oblige ourselves to *covenant and former defend upon trust,*unto the said *Mary Godley,*the said negro girl *Lucy*and her increase, for and during her natural life, and after the death of the *upon trust*unto *Betsey Godley Butler/pim*natural life, should she die without ifesm marriage and her having lawful issd ed parties, do bind ourselves to walrant fend the said girl *Lucy*unto the sail *the true intent and meaning of the a*agree?#

*Betsey Godley Butler*died unmarried, wiímÉt issue, in the life of her mother; and after the death of the mother, this petition was exhibited by her next of kin claiming distribution of the said *Lucy*andher issue, and an account of their hire, as being a part of the personal estate of the said *Mary,*subject to distribution.

The case was heard in the Court below, at Spring Term 1825, before Badger Judge, who declared that by the two instruments taken together, the *xvhole legal estate*in the slaves passed to *Mary Godley, in trust,*for herself for life, remainder to' *Betsey G. Butler,*but in case of the deatii of *Betsey*during the life of her mother, then *in trust*for *Elias Godley*and the other covenantors and grantors in the said instruments ; and that, consequently, the Defendant held in trust for them, and not for the next of kin of *Mary*Godley, The Judge there*96upon ordered the petition to be dismissed, with costs; arK' ^le petitioners appealed,

This case was argued at June Term last, by *Gaston*for †[1(, petitioners, and *Hogg*contra 5 but the present reporters are not in possession of any note of the, argument. The Court took time to consider, and now, at this terip, the Judges being divided, the opinion of a ma-joriy of the Court was delivered by

Henderson, Judge.

If a legal estate, passed to *Mary Godley*by the deeds in question, the limitations after her life estate are void, and the whole interest vested in her. To me it is incomprehensible how a person can take to the use of, or in trust for himself; that he should be his own trustee; that he should have a right to call upon himself to perform the use or trust, and if refused, enforce performance. So far from such an union being recognized in law, it is a well established maxim, that if the two'interests become vested in the same person, the use or trust immediately vanishes; — it does not exist for a moment. It is true, that where there is a sole corporation as a Parson or a Bishop, the individual, the sole corporation may hold in one capacity to the use of or in trust for the other, and there is an unsatisfactory attempt made, to make a tenant in fee, hold for himself in tail; but this is upon the ground tiiat there are two persons, the one natural, the other artificial, and it was attempted to be shewn that a tenant'in tail is an artificial person, created by the statute *de donis:*bat this shews, tiiat it is upon the idea tnat there are two persons, that the two interests are supported. I must therefore discard the idea entirely, that *Mary Godley*held in trust for herself, and afterwards in trust for ulterior remainders.

• That she took but a trust estate, her legal estate remaining in the grantors, appears to me to be also untenable. I will lay but of the case the contract of 1792, whereby the grantors bound themselves to purchase a *97negro girl and to limit her to *Mary Godley*for life, and afterwards to her daughter, farther than it is referred to, and its provisions by such express reference incorpo-ratedjinto tiie latter deed. The words of the deed of 1793 are, that tlipy, the grantors, (naming them) have on *that*day delivered to *Mary Godley,*for the *purposes*declared in the annexed agreement, the negro *Lucy*for the consideration therein set forth ; they then severally warrant the said, girl *upon trust*to said *Mary Godley,*for life, and after her death to her daughter, &c.; and the question is, does the legal estate pass to *Mary Godley*for life, or docs it remain in the grantors: if the legal estate pass* es, the limitations are void ; if it remain in the grantors, arid nothing but a trust passes, the trust is good» There are no words passing only a trust and retaining the legal estate; they deliver to her upon trust for the purposes of the annexed deed : that deed declares that they shall within eighteen months procure a negro of a certain description, and a good aud lawful *title*to the said negro *make*to the said *Mary,*during the term of her natural life, and after death to her daughter, &c. Who are to perform the trusts, if there are any ? The grantors ? None are pointed out for them to perform ; *they*are not to hold the negro in trust for *Mary*Godley, but *Mary Godley*is *to*hold upon trust. They did no grant the trust (the beneficial estate only) to her, retaining the legal one themselves; but they gave the legal estate to her, and on her imposed the trusts. What were those trusts ? The only ones expressed are, that she would hold the negro, during her own life, and that after death, the negro should go to her daughter, aud return to the grantors if the daughter should die before the death of her mother. Were I to presume, I should say these were the ideas intended to be conveyed by the term *“in trust.”*But allowing that the person who drew this deed, had the idea, that, by means of a trust growing out of a legal estate, these future and contin-*98g.en£ limitations of personal property could be made, am! intended to draw such a deed as would effect that object. „ , , . „ , . __ , if lie has not done so, we cannot do it for him. JNo rnat-jeI. w]iat ),e 0P the parties intended, we must decide the right of these parties upon what has been done, and not on what he intended to do. Is there a valid trustee to hold and preserve the legal estate, until these future trusts arise ? for it is upon that ground, and that ground only, that these future trusts can he supported. If there were any trusts declared, it was upon *Mary Godley’s*legal estate, and not upon the estate of the grantors, and they were to her in the first instance, and if so, they vanished in a moment, and they will not arise again and fix on the estate after her death. I am constrained, therefore, to say that *Mary Godley*took the whole estate, and that upon her death, the petitioners are entitled as her next of kin, she having died intestate.

Let the Judgment of the Superior Court be reversed, and the cause remanded, with instructions that the Superior Court proceed in the cause.

Hade, Judge,

*dissentiente.-tf-I?*the title to the negro girl passed to *Mary Godley,*%ie petitioners are entitled to recover : nor will I deny, that if she has the legal title, in trust for herself, during her life, they are entitled to recover j but the deed is drawn in too questionable a shape, to admit of clearness aud certainty. The words are, that they “ delivered *to Mary Godley, upon trust,*for the purposes in the annexed agreement, a certain negro girl,” &c.$ the words, *upon trust,*seem to distinguish this deed from those commonly used to convoy the property itself j it was not intended that she should hold the property as in common cases $ and I think, where a doubt exists, as in this case, and two constructions may be placed on a deed, one of which would be against law, so, as not to answer the end proposed, and the other is conformable to it, the latter ought to be adopted. Now if *99we consider *Mary Godley*as only having- a trust interest in the property, from the words, “ *delivered to her upon** *trust,”*&c. the object in view will be accomplished, But jf we adopt the'other construction, and give her the legal title by those words, the object of the parties will be frustrated. The petitioners were never intended to be benefited by the conveyance; where then it is stated that, the negro girl v\ as *delivered to her upon trust,*I must understand it to mean, that she had a trust estate, in contradistinction from a legal estate, and that the legal interest did not pass. I therefore think the petition should be dismissed.

By a majority of the Court, the Judgment was

Reyerser.