#### JAMES HARRELL *for himself and as Administrator against*BENJAMIN HARRELL, *Executor,*AND OTHERS.

The aet of 1823, Rev. Oocle, cb. 57, sec. 21, enabling a remainder in slaves, after a life-estate, to pass by deed, has no effect upon a deed executed prior to its enactment.

A deed of bargain and sale to one, for life, *in trust for his oum use,*conveys simply an estate to him for life, -which before the act of 1823, amounted to the whole interest, and a limitation over after such a provision, passed nothing.

This was a bill for the partition of slaves, transmitted from the Court of Equity of Martin county.

James Moore, by deed, dated 18th of November, 1823, conveyed “ unto his daughter, Mary Harrell, in trust, during her natural life, the two following negroes, Peter and Rosetta, with their increase for her own use and behoof, and after her death, the said property to. be equally divided between her four -children, James, Mary, Joshua, and Rosanali Harrell, to them and their heirs forever.”

Shortly after the execution of this deed, the said slaves went into the possession of Joshua Harrell, the husband of the legatee, Mary, and with the increase of Rosetta, (now amounting t© ten,) so remained until his death, in 1856.

Mary, the wife of the said Joshua, died in 1853.

Joshua, the husband, made his will, and bequeathed most of the slaves in question to others than the persons designated in the above recited deed, and the executor, therein named, 'has possession of them, claiming them for the estate of iiis testator solely and exclusively. The bill is filed by James Harrell, one ol' the -children named in the deed, for himself, •aud as administrator of his deceased brother, Joshua Harrell, junior, against the executor of Joshua Harrell, senior, and the rest of the children, insisting, that by proper construction of the said deed, the slaves, therein mentioned, were vested in Joshua Harrell, senior, the husband of Mary Harrell, absolutely, in trust, during the life of his said wife for his 'benefit, and after her death, in trust for her four children, James, Mary, Joshua, jr., and Rosannah, absolutely, aud the prayer is for a division accordingly.

*230The answers of the defendants disclosed nothing, differing from the above statement, but insisted that Joshua, the husband of Mary, took the absolute interest in these slaves *jure' mariti.*

Hodman, for the plaintiffs.

Winston, *Jr.,*for the defendants-.

Majsly, J.

Prior to the act of 1823, no remainder could be limited by deed, at common law, upon a life-estate in a slave. A conveyance for life, was a conveyance of the whole-.

The deed before us, for construction, was executed before-the passage of that act, and consequently, was not affected by it. The rights vested by the operation of the deed-,, could not be divested by the passage of the act.

It is a familiar principle of conveyancing, ■ that a deed of bargain and sale to- one, for life, in trust for his- own use, is simply an estate for life. The deed in question-is no more. The- bargainor conveys to his daughter, “Mary Harrell, in trust,, during her natural life, the following slaves : Peter and Eosetta, with their increase, for her own use and behoof.” This is a conveyance- to her of asimplo life-estate in the slaves-, and as it was prior to- the act of 1S23, it was, as we have already shown, a conveyance of the whole.

Thus the husband, Joshua Harrell, senior, became vested *J/urc mariti*with an unrestricted estate in the slaves, and they and their increase-are-rightfully ini the hands of 1ms personal-representatives, subject to be disposed of according to- law and the will of their testator.

It is not supposed that it was- impracticable, prior to dis-enabling statute referred to, by deed, to limit a remainder-after a life-estate i-» chattels, provided it were done by pro-pe-r word's, for-separating and keeping' apart the legal and equitable estates. That is not done in o-nr ease. The trustee and the *cestui qui trust*being identical, there is no estate of any sort outside of the latter, and the results follow as declared; above.

Per CURía'm, Bill dismissed! with costs.