#### WILLIAM BRANTLY *against*JAMES KEE.

In a bill for a sequestration, to protect the interest of a remainderman, it is-not necessary that all the joint-owners of the remainder, should be made-parties.

Where one coming in under a life tenant, resides-in another State, and claims the whole property in slaves, against conscience- and equity, this, without any threat, was *Held*to be sufficient ground for a remainderman to allege-an apprehension that they would be-removed, and to authorise the issuing of a sequestration to restrain such removal.

A conveyance of “ all the property I possess,” where-there was no apparent motive for making an exception, was *Held'*to mean all that the party *owned,*as well that in* remainder as- that in his immediate occupation.

Where, by a marriage settlement, the husband was entitled to an estate for the life of his wife, in slaves, and the wife to the remainder, and¡ during the-coverture, the husband conveyed to- a trustee, in trust, for the benefit of his wife for her life, with* a remainder to A. and B., his children*, and after discoverture, the wife elected to take the life estate, under her husband’s-deed, it was *Held*to be against conscience for her, after disposing of the life estate, to claim the remainder also.

Where a deed of trust was made, limiting property in slaves to-certain persons, and a petition was filed in a Court of Chancery, setting out the rights of the parties to the deed, according to- its terms, and praying for the ap - pointmentof a trustee to perform the trusts-'as-therein set out, and such trustee was appointed by the court, and gave bond to perform the trusb and took the property into possession by virtue of ■ such decree:: it was *Held*that the parties to the proceeding were estopped to deny the- ownership asserted in the proceeding, and that the trustee, as a privy in estate, was in like manner estopped.

*333.A. trustee who acquires an outstanding title, adverse to that of his. *cestuis qui trust,*is considered, in equity, as having acquired it for their benefit, and cannot set it up for his own.

Cause removed from the Court of Equity, of Northampton.

William Kee made his will and died in 1820, bequeathing ■thereby to his wife, Anna Kee, during her life or widowhood, -among other tilings, a negro girl, Sarah, and upon the death or marriage of the said Anna, he gives the girl Sarah, and her increase, to his *“*daughter Sally Hart, and her heirs, forever.”

Sally Hart, during the lifetime of Anna Kee, intermarried witli one Wyatt Brantly, having first made a marriage settlement, dated 29th of March, 1829, of which the following extract, only, is necessary to the proper understanding of the case:

“ The said Sarah, for and in consideration of the premises, ■does hereby grant, bargain, and convey, unto John W. Dupree ■* * as trustee, all the estate or property which she now possesses, upon the following trust, to wit: that the said Wyatt and Sarah are to enjoy the profitsarising from the said estate, and to have the use thereof during the lifetime of the said Sarah, and at her death, she, the said Sarah, may dispose of the same in such way as she may think proper — either by will or deed of gift, or other instrument of writing.”

Anna Kee died about the year 1834, and immediately thereafter the slave, Sarah, ard her child, Cassandra, went into the possession of Wyatt Brantly, where they remained up to the time of his death, which took place in 1842. Shortly before his death, viz: in September 1842, he conveyed some land, •and the growing crop, plantation tools, cattle, horses, hogs, furniture, &c., and the following slaves: Sarah, Ben, Anthony, Joe, Carter, Tom and Cassandra, to one Benjamin D. Til-lar, his heirs, &c., in trust, to pay the debts of the said Wyatt, and then for the use and occupation of his wife, Sarah, during her life, and, after her death, to his sons, William and John. ‘This deed was acknowledged in open court, by both Brantly -and Tillar, and ordered to be recorded.

*334Tillar acted as trustee for a short time,,and in January, 1843., an application was made to the court ®f chancery of Greens-ville county, in the State of Virginia, wherein the parties resided, by petition of the creditors of Wyatt Brantly, setting forth the appointment of Benjamin D. Tillar as trustee, and that he bad sold some of the property, but that he refused to proceed' further in the execution of the trust, and was anxious to be rid of it, and praying that another trustee might be appointed. Service of this petition was made on Sarah Brantly, William Brantly and John Brantly, who all answered and professed to be satisfied with the proposed change, and thereupon a decree passed appointing George ICee trustee in place of‘Benjamin D. Tillar, and the said George gave bond with two sureties, payable to the court, reciting his appointment as trustee, and conditioned “well and truly to perform the duties of trustee as aforesaid.”

George Kee, the newly appointed trustee, took possession of the slaves immediately after his appointment, and brought them to the- county of Northampton, in this State, and retained possession of them until his death, which occurred in the year 185-6.

In March, 1843, Sarah Brantly, for the consideration of natural love and affection, conveyed to the said George Kee, the whole of her property, including the woman, Sarah, and her daughter, Cassandra,, and the other slaves in controversy, descendants of these two, reserving to herself a life-estate in the property.

Afterwards, on the 14th of September, 1844, the said Sarah, reciting a consideration of one thousand dollars, paid by George Kee, conveyed to him by deed of that date, her life-estate in the slaves, reserved in the deed of 1843.

After the- death of George Kee, his next of kin had a division by order of court of these slaves, as a part of the estate of George Kee, and those in question in this suit, Cassandra and her two children, descendants of the woman, Sarah, were assigned to the defendant, as one of the next of kin, and the bill alleges that he is about to remove the same to the *335State of Tennessee, where he resides, claiming the absolute right to them.

The bill alleges that the plaintiff, "William, is entitled to the entire interest in remainder, for that his brother, John, to whom it was jointly limited, is dead without leaving any child or children, also, that Sarah Brantly, the original donee, is still alive, and that before her death, the plaintiff’s right to enjoy the property does not arise, but in order that the same may be preserved and protected until the happening of that event, he prays for a writ of sequestration, &c.

The facts, set out in the defendant’s answer, are substantially as stated above, except that it is not admitted that John Brantly was dead at the beginning of this suit, and it is urged, that being a necessary party, the bill, in its present shape, cannot be sustained. And, it is denied that the defendant ever declared an intention to remove the slaves in question to the State of Tennessee, or beyond the jurisdiction of the Court. The defendant insists, however, that by a proper construction of the deeds above set forth, and by the division of his father’s estate, he is entitled to the property in absolute right, and he admits that his residence is in the State of Tennessee.

A question arose between the parties as to the meaning of the conveyance to Dupree. It was insisted by the plaintiff that Mrs. Brantly did not intend to convey the slaves in question as she only professes to convey the estate which *she possessed,*and that her mother being alive, she did not possess the slave Sarah. To this it was replied that Mrs. Anna Kee had, at the date of the deed, surrendered her life-estate, and the slaves were in the possession of Mrs. Brantly, when the deed was made. Testimony was taken as to this fact, but according to the view of the Court, the point becomes immaterial.

The order was made by the Judge at chambers, for the issuing of the writ of sequestration, and the same was returned by the sheriff, with bonds taken for the forthcoming of the property at the death of Sarah Brantly.

The cause, in this state, was removed, by consent of parties, *336to this Court, and was heard on a -motion to-dissolve the se-questration and dismiss the bill.

*'Barnes*and *Fowle,*for the «plaintiff.

*B. F. -Moore,*for the defendant.

PeaesoN, '-C. J.

The plaintiff alleges that be is entitled to certain slaves, subject to the life estate of Sarah Brantly ; and that the defendant, who has acquired the life estate, under pretence that he is entitled to the absolute estate in three of 'the slaves, is about to carry them to the State of Tennessee, where he resides. The object of the bill is to have the slaves sequestered, so as to have them forthcoming at the death of ■Sarah Brantly.

We are not-satisfied by the proofs, that John Brantly, who, the plaintiff admits, was a tenant in common with him, is dead without children, but we are satisfied that he has left the State and ,-gone to parts unknown ; and, for this reason, we are of opinion that the bill, which does not seek a final adjudication of the rights of the parties, but only to have the property secured, can be maintained by the plaintiff, and that John Brantly is not a necessary party. In *Brown*v. *Wilson,*6 Ired. Eq., 558, a remainderman, who had but a *contingent 'mterest,*subject to the death of the tenant for life without having a child, was allowed to maintain a bill of this kind, for the purpose of securing the property.

Where there is a reasonable ground of apprehension the bill will be maintained, unless it appears that the defendant is entitled to the absolute estate. The defendant denies that he ever announced a purpose to carry the slaves out of the State ; but he claims them absolutely, and as he lives in Tennessee, and these slaves have been allotted to him in the division of his father’s estate, we are satisfied there is a ground to apprehend that he will take them out of the jurisdiction of this Court.

So the question turns upon the title to the slaves.

1. Did the slaves, Sarah and Cassandra, (from whom the. *337others are descended,) pass to Dupree, under the marriage settlement executed by Sarah Brantly, (then Sarah Kee)? The words are, “all the estate-or property which she *now jpossesses.”*“ Possess ” is frequently used in the sense of “ own,” “ entitled to and although the word “ now,” in connection with the fact that Mrs. Brantly’e. title was subject to a life estate, raises a doubt whether it was not intended to exclude the property to which she was -only entitled in remainder, still the fact that there was no 'motive, for not including in the settlement all the property or estate which she owned, inclines us to the conclusion that she did intend to convey all that she owned, in which sense “possesses” was used; so that point will be conceded to the defendant, and we will not enter into evidence, as to whether the slaves had not been, before that time, put into her possession, by her mother, the tenant for life, or whether, just before the date of the deed, they had been taken away from her.

2. There are three grounds upon which the defendant, who claims under George Kee, can not be considered, in this court, as the owner of the remainder in these slaves, after the death of Mrs. Brantly.

1. By the effect of the deed to Dupree, and the marriage, "Wyatt Brantly, upon the death of the tenant for life, was .entitled to the slaves for the life of his wife. The effect of his deed to Tillar, was to give Mrs. Brantly an estate in the slaves for her life, with a limitation over to his two sons. After his death, Mrs. Brantly elected to take, under this deed, and went into the enjoyment of a life estate. -So the matter stands thus-: under the deed to Dupree, Brantly was entitled to the life estate, and Mrs. Brantly to the remainder ; under the deed to 'Tillar, Mrs. Brantly was entitled to the life estate, and the children of Brantly to the remainder — thus effecting an exchange of the estates ; which was advantageous to Mrs. Brantly, as she had no child. At all events, she so considered it, .and after the incapacity of coverture was removed, made her .election ; and it is against conscience and a well established principle of equity, for her, or one claiming under her, after *338the enjoyment of the life estate, derived from her husband, to attempt to set up her title to the remainder under the deed to Dupree; for thereby she would defraud Brantly’s children, either out of the life estate, or of the remainder, and to prevent this, she must abide by her election to take the life-estate, and let them have the remainder.

2. Mrs. Brantly was a party to the proceedings had in the Court of Chancery, of Greensville county, Virginia, by which George Kee was substituted as trustee, in the place of Tillar. The parties in that proceeding, set up title under the deed to Tillar, and it is admitted, and acted upon as *a fact,*that Mrs. Brantly was entitled to an estate for life, and 'William and John Kee to the remainder. So the case comes directly within the principle of *Armfield*v. Moore, Busb. Rep., 157, and George Kee, as privy in estate, is bound by the estoppel, which, in this instance, operates to prevent a fraud.

3. George Kee, by his appoinment as trustee in the place of Tillar, by the execution of a bond for the faithful performance of the duties of trustee, according to the provisions of the deed to Tillar, and by taking the slaves into his possession, became invested with all the rights and duties of a trustee for Mrs. Brantly, and.for William and John Brantly, and when he acquired tlie adverse title of Mrs. Brantly, under the deed to Dupree, is presumed to have taken up this adverse title for the benefit of his *eestuis qui*trust, William and Johu Brantly, upon the well settled principle of equity, that where a trustee purchases in an outstanding, adverse title, lie is considered as doing so, not for his own, but for the benefit of his *eestuis qui trust;*and the principle applies more strongly where the title is acquired, not by purchase for value, but as a mere volunteer — by his *own*aet, and not by the act of law. The correctness of this principle, and its necessity, in order to- prevent one who has undertaken to protect the rights of others, and by his fiduciary relation has had the means of knowing the condition of the title, from committing a fraud and betraying liis trust, will strike every one’s sense of justice, without further explanation, and is too plain to require the citation of *339authorities. The principle, is, under certain circumstances, acted on at law : Tenant for life makes a feofment to A for life, remainder to B in fee ; the first feofor releases to A ; it operates “ by way of extinguishment,” and enures as well to the benefit of B as of A. So a disseisor makes a feofment to two; the disseisee releases to one of them ; it enures to the benefit of both ; taking under the same conveyance they are privies in estate, and the act of one in getting in the outstanding right, is presumed to be for the benefit of his fellow as well as himself.

Our case is a striking instance in illustration of the principle. As soon as Kee gets possession of the slaves, he brings them into this State, and thereupon turns “ traitor in the camp,” and instigates one of his *cestuis qui t/rust*to attempt a fraud upon the others, by setting up and conveying to him an outstanding, adverse title to the remainder, after her life estate. This is not simply a constructive fraud, but actual fraud and dishonesty!! Can he, or a volunteer under him, ask to be considered, in a court of equity, as having, by such means, defeated the rights of his *cestuis qui trust*and bécome the owner of the absolute legal and beneficial estate ?

The sequestration will be continued, to the end that the defendant may give a sufficient honcl not to remove the slaves beyond the jurisdiction of this Court, and to have them forthcoming at the termination of the life estate.

Per Curiam, Decree accordingly..