#### SARAH L. THOMPSON et al. *vs.*JANE McDONALD et al.

Although the motive assigned for the execution of an instrument, to wit, the desire of removing strife about the enjoyment of the property after the death of the maker — the disposition attempted of property that might be acquired thereafter, and before death — and the injunction on trustees named therein, to pay death bed and funeral expenses, may unequivocally point to the death of the maker, as a period after which some at least of his purposes are to be executed, and are indications of the testamentary character of the instrument; yet they are by no means conclusive. It does not follow, because an instrument is to produce important results after death, that therefore it must be testamentary. To render it so, it is essentially necessary that it should be made td *depend*on the event of death as *necessary to its awn consum. mation.*And, therefore, if the instrument, notwithstanding the abcve mentioned indications of a testamentary character, be in *form*a deed; if it do not use a word a gift after death — of devise — or ot bequest; if it import a present disposition of property to the persons therein named as trustees, “with power” to.them “to sell and dispose of said estate, bring actions &c., and generally to do every thing in the premises that” the maker “could have done before the granting” thereof; and it the maker reserve his “own life rent in the premises', and power to alter, innovate or revoke these presents, in whole or in part, at any time hereafter,” it will be held to be a deed, and not a will or testament.

Where an assignment is absolute and unconditional, and leaves no remaining liablity or right in the assignor which can be^fííected by the decree, the assignee need not make the assignor a party. But whether, if h» be needlessly made a party, it is a valid ground of defence, *Qu?*But however this may be, if there remain any interest — right— or liability in the assignor, which can be affected by the decree — a *scintilla juris*even — then heis a proper, and, in most instances, aneces-sary party. And, therefore, a trustee holding for the separate use of a married woman, and for certain contingent trusts, will be a proper and necessary party in a bill by the married woman, although he has executed a deed purporting to assign his whole interest to her.

The next of kin may sustain a bill against the executor of the deceased administrator of an intestate, for an account and settlement of the intestate’s estate in his hands, as well as against the administrator *de bonis non*of such intestate.

The case of *Bratton*vs. *Bateman,*2 Dev. Eq. Rep.'115, approved.

In a limitation of property to two sisters, and to the survivor upon the death of either without children living'at her death, the word “children” means legitimate children; and if either of the sisters die, leaving illegitimate, but no legitimate, children, the whole property will go to the surviving sister.

*464Where an administrator dies, commissions may be allowed his estate his services in managing his intestate’s estate, though his executor set Up an unconscientious resistance to the claim of the next of kin of ...... the intestate.

Whatever respect a Court of Equity might feel itself bound to pay to an or(}er 0f the County Court, settling the rate of an administrator’s commissions, had it been made before the suit was instituted, itregards such an order in relation to a matter under investigation before itself, as furnishing no criterion by which to regulate the proper allowance.

If an estate be limited to two, and upon the death of one to the survivor, the interest or profits of a moiety of the estate during the life of the one first dying, do not pass over to the survivor with the estate, but belong to the representatives of the deceased.

The plaintiffs, in this case, were Sarah Lenox Thompson, otherwise called Sarah McKinnel, suing by her next-friend James Stuart, Alexander Kissock, James Broom and George Blount, and the defendants were Jane McDonald, widow an executrix of Ronald McDonald, deceased, Robert Martin, administrator *de bonis non*of Ann Charteris, deceased, John *W.*’Ellington and John McKinnell. The case made by the bill, was, that John Lenox, a native of Scotland, but for many years a citizen of North Carolina, died in this State intestate, unmarried and without issue, some time in the year 1825, and that administration on his estate was granted to James T. Morehead,Esq., and Ronald McDonald — that at the death of said intestate, his sole next of kin were the defendants, .lane, then the wife of the said Ronald McDonald, John Charteris, of this State, and Ann Charteris, of Scotland; which said Jane, John and Ann, were the children of Mary Charteris, deceased, the sister of the said John Lenox: that the said Ronald McDonald received the full distributive share of his wife Jane, in her uncle’s estate: that John Charteris received but a very inconsiderable portion of his share before he died, in the year 1827, having previously executed a last will and testament, whereby he bequeathed all his personal estate to his sisters, the said Jane McDonald and Ann Charteris, and the said J. T. Morehead was appointed administrator of the said John with the will annexed — that in the year 1830, the said Ann died in Scotland, intestate, without having received any part of her said distributive share; *465and that upon the receipt of intelligence of her death in this State, the said Ronald McDonald procured letters of admin- ' r istration here upon her estate. The bill further shewed that Ann Charteris never was married, but had an only child, the plaintiff, Sarah, born out of wedlock, in Scotland, where both have always resided; that the said Sarah was recognised as the child of the said Ann, and brought up by her as such, to the knowledge of the said Ronald and his wife, and was nearly grown and perfectly known to the said Ronald and his wife when they emigrated from Scotland to North Carolina, in 1820 or 1821 — and that the said Sarah shortly thereafter intermarried with the defendant, John McKinnell, of Dumfries, in Scotland, who, in the year 1822, after treating his wife with great indecency, abandonedher altogether, went off to parts unknown to her, and has never since cohabited with, or been heard of by, her. The bill then charged that the said Ann Charteris, on the 13th of April, 1830, a few months before her death, by a disposition and deed of settlement, executed at Dumfries aforesaid, and which, by the law of Scotland, was effectual to transfer all her estate and interest in the subject matter thereof, did “ bequeath, assign and convey to Alexander Kissock, residing at Lawricknowe, James Broom, Town Clerk of Dumfries, and George Blount, spirit-dealer there, and to the survivors and survivor of them, any two, while so many remain, being a quorum for managing the trust thereby committed to them, all and singular, the heritable and moveable real and personal means and estate then belonging to her, wherever the same might be situated, whether in Britain or in countries abroad, at the timó of her death; and particularly,- without prejudice to that generality, the whole means and estate heritable and moveable, to which she had a right as niece of John Lenox, her uncle, who was brother-germain of her mother; and also of her brother, John Charteris, also deceased, situated in the United States of America, or wherever the same might be situated, together with the whole writs and title deeds, vouchers and securities, of and concerning the said estate; and the said Ann did thereby constitute and appoint the said trustees, and the survivors and survivor of them, her sole executors and uni*466versal legators and intromittors, secluding and debarring all others; and did further provide that the said Alexander Kis-sock should have the sole control and management of the trust fund during his life; and declared that the said presents were granted in trust for the payment of all her just and lawful debts, death bed and funeral charges, and a reasonable gratification to her trustees, for their trouble and the expenses of management; and after these purposes should be fulfilled, the residue should be had by her said trustees, the said Alexander being sole managing trustee during his life, for the use and benefit of her natural daughter, Sarah Lenox Thompsou, wife of John McKinneil, and the children of her body, secluding entirely, the *jus mariti*of her present and any future husband, and debarring all administration and management by him.” The bill further charged that the said trustees, after accepting of said deed, and after corresponding with the said James T. Morehead, Esq., and Ronald McDonald, by whom their authority was recognised, did, on the 4th and 6th days of August, 1832, at the request of the plaintiff. Sarah, execute unto her their deed ofdevolution and transferrence,, conveying to her the whole trust property as amply as they had held it for her use, which was accepted by her, whereby the said trustees denuded themselves of their trust, and the said plaintiff became entitled to receive the fund, in whose hands soever it might be. The bill charged that Ronald McDonald, some time in the year 1834, in order to save harmless the defendant Robert Martin, who was the surety of the said Ronald for the faithful administration of the estate of Ann Charteris, and to defeat and hinder the plaintiff, Sarah, in the recovery of what was justly due to her, made a conveyance of the whole or greater part of his property to the defendant, John Ellington, in trust, for the said Robert; that the said Ronald received a large amount of money, property and effects, as belonging to the estate of his intestate, the said Ann, and died in the month of November, 1834, having previously made his last will and testament, wherein he appointed his wife Jane his sole executrix and legatee; that she had proved the said will, and taken into her possession the whole estate, as well of her husband as of her *467husband’s said intestate; that the said Robert Martin had been appointed administrator *de bonis non*of the said Ann, and had received, or shortly would receive, as such, a large sum as of the estate of his said intestate. The prayer of the bill was, that the said Jane McDonald, as executrix of Ronald* McDonald, and the said Robert Martin, as administrator of Ann Charteris, might come to an account with the plaintiffs for all the assets of the said Ann which had come to them respectively, whether from the estate of John Lenox or the estate of John Charteris. or otherwise, and might be decreed to pay what might be justly due on such account; that in default of payment, the said John Ellington might be decreed to sell the trust fund in his hands for the satisfaction thereof; that John McKinnell, the husband of the plaintiff Sarah, might be made a party defendant; and for general relief.

The answer of the defendant, Jane McDonald, admitted the death and intestacy of John Lenox, and the administration on his estate as charged, and admitted that the said Jane, her sister Ann and her brother John, were his next of kin; that the said John died, having previously made his last will, the administration of which was confided to James T. More-head, Esq., as charged; that her sister, the said Ann, died in Scotland, and that Ronald McDonald administered on her estate; that Robert Martin was surety for the said Ronald on his administration bond, and that the said Ronald executed a conveyance of some property to the defendant,- John Ellington, for the indemnity of the said Robert; and that the said Ronald had died, having made a last will, whereof he appointed her executor; which will she had proved. This defendant denied that her sister, the said Ann, ever had any child, and protested her utter ignorance of the existence of such a reputed child; and in the most explicit terms, disclaimed all acquaintance with the plaintiff, Sarah. The defendant did not admit the execution of the alleged deeds, or either of them, as charged in the bill; and prayed that the plaintiff might be put to strict proofs thereof; and insisted that her sister, the said Ann, having died childless and intestate, without having made any disposition of her property in her life-time, she, the defendant, became wholly entitle^ to *468her personal estate; and that the plaintiffs had not, nor had any of them, a right to demand an account thereof.

The answer of Robert Martin contained the same admissions as were set forth in the answer of Jane McDonald_ This defendant stated, that having become the surety of Ronald McDonald on his administration of the estate of Arm Charteris, the said Ronald executed a conveyance of certain property named therein, to indemnify the defendant from injury therefrom, and protested that the same was executed, not to hinder or delay the plaintiffs, or either of them, but *bona fide*for the purpose therein mentioned. This defendant admitted, that on the death of Ronald McDonald, he obtained letters of administration *de bonis non*on the estate of Ann Charteris. Of the other matters charged in the bill, defendant declared that he was ignorant, and required that the plaintiffs might be put to the proof thereof.’

The defendant, Ellington, admitted that he was a trustee in the deed executed for the indemnity of Robert Martin, and declared his entire ignorance of the plaintiffs, and of the matters alleged by them whereon their pretended claim was founded.

To these answers the plaintiffs entered a general replication — as to the defendant, McKinnell, publication was made, and the bill was taken pro *confesso*against him, and was set down to be heard *ex parte.*

Upon the hearing, the proofs cleqrly established that the plaintiff, Sarah, was the natural dau^hW of Ann Charteris; that she had been acknowledged as such by her mother, from the day of the said Sarah’s birth in 1799, up to the death of the said mother, in 1830, and had been generally known as such by the acquaintances of the family of her mother; that she intermarried with the defendant, John McKinnell, with whom she lived not quite a year; and that he had wholly separated from her. The instruments, called in the bill the deeds of settlement and devolution, were also produced, and their due execution according to the laws of Scotland satisfactorily proved.

*W. A. Graham*for the plaintiffs.

*Boyden*for the defendants.

*469Gaston, Judge,

having stated the case as above, proceeded as follows: The right of the plaintiffs to the accounts i , , , . . , , demanded, has been resisted on several grounds.

In the first place, it is insisted that the claim of the plaintiffs cannot be upheld, unless the instrument of the 13th of April, 1830, be established as a deed, effectual to transfer the interest of Ann Charteris, in the personal estates of her deceased uncle and brother, to the trustees therein named. The plaintiffs have not, it is argued, pleaded this instrument as a will, or testamentary disposition, to take effect after her death, and, therefore, cannot claim under it as such; and if they had so pleaded it, this Court could not recognize it as a will or testamentary disposition, until its validity had been established by probate in the proper forum. Now, without denying that the instrument has been executed in the form, and with the ceremonies required in the execution of deeds, it is, nevertheless, insisted, that it cannot operate as a deed, because its dispositions are, in their nature, merely testamentary; purporting to take effect after the death of Ann Cbar-te.ris, and dependent upon her death as an event necessary to the consummation of the instrument. To support these views, the attention of the Court, besides being called to the general scope of the instrument, was particularly directed to that part of the proem wherein the maker uses these words, “ considering the propriety of so arranging my affairs, while I am of sound disposing mind and memory, as to prevent disputes at my death” — also to the disposition made of “all and sundry the heritable and moveable, real and personal means and estate now belonging to me, or that may pertain and belong, or be due and indebted to me at my death” — also to the clause, “and I do hereby constitute and appoint my said trustees, and the survivors and survivor of them, and the heir of the survivor, tobe my sole executors and universal legators and intromilters, with the said moveable aud personal means and estate, secluding and debarring all others”— also to one of the trusts therein declared, viz: “in trust for the payment of all my just and lawful debts, death bed and funeral expenses,” — and, finally, to the clause in which she declares “and I reserve my own life rent in the premises, and *470power to alter, innovate and revoke these premises, in whole ’n Part) aDy 1'1110 hereafter; and dispense with the delivery hereof, and declare these presents to be valid and ef-lectual, though found lying- in my own repositories, or unde-delivered at ihe time of my death.” These, it is said, clearly shew, notwithstanding the form of the instrument, that it was made in contemplation of death, for the disposition of property that might not be acquired until the last moment of life, for purposes to be executed after death, with the reservation of the use of the property, and the power of revocation during life, and conferring an office which could be called into existence but by the death of the maker of the instrument — that it is therefore ah instrument altogether testamentary in its properties — and cannot, without violence to the plain intent of the maker, be allowed to operate as a deed taking effect from the execution thereof.

Persons claiming under an instrument reliefunder »1,111 set-, instrument awcii. an instm-TMee"etupn0t testament01" by a bill in mustbe u forward in ihe proper and there proved as a

Although it does foiTow'J^that 11 testamen-*471an(ja anh0’> court that it cannot operate as consist with es,ta].’\ of the ma-tacy! "ev-" ^^s’is one which der the ^a_ J® ■ ment a eon-torkt is ihe courts to be pretation of m°iyha-if P°s-sible, rather than perish altogether.

*470We assent to the proposition that the plaintiffs cannot have relief by this bill, if the instrument in question be one simply *J*¶ * • testamentary; ana we also think (although it is unnecessary to give a judical opinion upon that point,) that were the instrument a will or testament, the plaintiffs could not set it up by a bill, but ought to bring it forward before the appropriate have the lettérs of administration recalled and va-an(j cause it to be there *proved*as a will. But before we refuse to the instrument the operation of a deed, we must be fully satisfied that it is simply testamentary, and cannot, hy *aW) °Perate as an act *inter vivos.*The defendant, Jane McDonald, is called to account for the conduct of her testator in the management of the estate of Ann Charteris, which was confided to him *as ihe administrator*of the said Ann. The defendant, Robert Martin, is called to account for his management of the same estate afterwards confided to him a|g0 ag >161. a(qministrEitor. Those grants of administration, unrepealed, conclusively establish that the said Ann died in-Now, although it does not necessarily follow, that 11 the instrument in question be not testamentary, it must effect as a deed; and although our declaration that it caunot operate as a deed, may consist with the established of her intestacy; nevertheless, this" fact is one which *471should render us very cautious, in giving to the instrument a construction that must render it nugatory. It is the duty of courts to be benignant in the interpretation of solemn and deliberate acts, so that thev may avail, if possible, rather than • . i t, • i , • *-rr*, perish altogether. Besides, the plaintiffs have not in their bill, alleged in general terms, that the said Ann, by deed executed, had conveyed all her interest in the property in question, to the plaintiff’s trustees, for the sole and exclusive benefit of the plaintiff, the *cestuy que trust;*but have set . , r , . , *J .*.... forth, almost verbatvm, the operative words of the instrument, and the trusts therein declared; and have referred to a copy of the intrument, ready to be produced, and which they proffered to produce on demand. Now it seems to ns, that il the defendants meant to raise the defence that the instru-merit so set forth, to an inspection of a full copy whereof they were entitled before making defence, and the execution of which they called upon the plaintiffs to prove, was, when proved, inoperative by the law of Scotland, to transfer the interest which it purported to convey; -they ought, in fairness, to have raised that defence upon the record, so as to put the fact in relation to that law, distinctly in issue, and apprise the plaintiffs of themecessity of exhibiting proofs thereupon. Certainly, they have not, by their answers, admitted, and are not, therefore, now precluded from denying the feet; but we do not expect the same plenary proof to establish it, nor are we disposed to draw the same inferences from scantiness of proof, in relation to it, which we might have thought it ■sonable to require and infer, if the pleadings had shewn it was a material fact, directly controverted between the *1 **parties.

instrument, plaintiffs forth in ants wish to seives bf jjj® ^eil“ *472s rument does not, by the1 country vas exeeut-to'conveyte the interests which it purports to ooghuin1 cy raiseethatt0 defence on the rc-cord, so as fi»s?U,inhre-latiou to that law distinciy antTaitho’, if they do net admit the tact in swot, they precluded6 front the cou/^ p-'ct the eX" same relation ■t. or «'raw the same inferí from scan-inference tiness of Síe ings had shewn that it was tena! fact directly “¿"between the

*471The only *direct evidence*which we have concerning the law of Scotland, on this subject, is contained in the deposi-tiou of James Thompson, a professional gentleman of country, who testifies “that the deed of settlement” which has been inspected by him, “ is a deed, completed according to the forms established by the law of Scotland, for exeent-ing the deeds of illiterate persons who cannot write.” We must therefore regard it *as a deed,*in all respects, *complete,*unless its contents shew that it cannot operate as a deed.— *472There is always difficulty in the court of any country undertaking to fix the construction of an instrument made in a foreign land, with the laws of which it is not familiar. The mode of encountering that difficulty, where there is not an allegation established by proof, that the instrument a technical meaning, different from that which its words . . 7 . , , . import in *their ordinary sense,*is to understand the mstru-according to its obvious import,

There are, undoubtedly, passages in this deed, which, referring distinctly to things to be done after the death of the maker, give it the similitude of a testamentary paper. We are not so much struck with the clause in which she constitutes her said trustees and the survivors and the survivor of them, and the heir of the survivor, “ to be her sole executors an(^ universal legators and iutrommitters, with the said move- and personal means and estate, secluding and debarring *• ' ® © all others;” for most of the terms here employed are evident-merely technical, and used with reference, not to our law, but to the law of Scotland; and without an acquaintance . . ... *x*with that law, they are to us necessarily m a great measure unintelligible. We are the more sensible of the hazard of undertaking to expound these technical terms, bv adverting ° 1 *1*- ^ to other parts of the instrument, where technical language is a's0 used, or there is a reference to legal forms with which we are unacquainted. Towards the close of the instrument, the grantor says, “and I *dispense*with the delivery hereof, and declare these presents to be valid and effectual, *lh°ué>h*fouud lying in my own repositories, or in the custody any other person, undelivered at the time of my death.” again: “and I consent to the registration hereof in the b00]fS 0f council and of sessions, or others competent, therein to remain for preservation; and that all necessary execution may pass on a decree to be interposed thereto, in common *it*purpose constitute and for that purpose constitute

my procurators.” If, upon the technical which the word “ executors” bears in our law— , . & _ . n 7 _ that is to say, oí persons appointed to execute *the will*of one wbo deceased — we should judicially conclude that the instrument itself must be testamentary, while we are ignorant *473of the meaning of the immediately following terms, sal legators and intrommitters” — while we know not what is meant by the maker of an instrument, proved to be a deed completed with all the forms of law, dispensing with the delivery thereof, and declaring it to be valid and effectual, although it should never be delivered in her life-time — we are wholly uninformed what is the legal effect of a “ sent that it shall be registered in the books of council or sion” — or of consent “that execution may pass on a decree to be interposed thereto in common form — and of the constitution of” (blank) “ procurators for that purpose,” our conduct would be scarcely less rash than that of an individual who should venture to perform on oath the office of interpreter of a speech in a foreign tongue, because he caught one word, the sound of which was familiar to his ears. But, this reference , , „ , , *■, r- <*to the disposal of the property and to the conduct of the trustees after death, is manifested by language in no respect technical, and as to the meaning of which there is little or room for mistake. The motive assigned for executing the instrument — the disposition attempted of property that might be acquired thereafter and before death. — and the injunction on the trustees to pay death-bed and funeral expenses — unequivocally point to the death of the maker as a period after which some, at least of her purposes were to be executed, and are indications of the testamentary character of the instrument *4 J*well deserving of notice. But they are by no means conclusive. It does not follow, because an instrument is to produce important results after death, that therefore it must be testamentary. To render it testamentary, it is essentially necessary that it should be made to *depend*on the event of death as *necessary to its own consummation.*Permanent dispositions of property, however made, whether by acts perfect in themselves or to be perfected by death, must be made with a view to their operation long after the disposer shall have ceased to exist; and although the desire of removing strife about the enjoyment of property when its present owner shall be no more, is a peculiarly appropriate inducement for a testamentary disposition, it is by no means an irrational motive for making a settlement during life. And it may also be remark*474ed, that however inoperative the instrument may be as a deed Pass ProPerl7> thereafter to be acquired, and however as to that property it may manifest a testamentary inclination, it can have its full effect on the property then held, and so far there is no necessity for denying to it its proper act'on.

*473, any coun-J^ing to1" ^vfc«0n°of an instru-¡n a foreign which it is notlamiliar. The only ^counter-where there legation'es-"’ proofy,^ the instru-technical from that •which its words im-JfeV or<ft-n*ary sense,*stand'the61" to its obvi-°us imp0lt‘

*474But, whatever influence the indications adverted to might have, unexplained and unopposed, upon the character of this instrument, they are met by others so strongly manifesting the design to do thereby a perfect and consummated act, that we feel little difficulty in declaring the instrument valid as a deed. *The form*of it is a circumstance by no means unimportant. It is certainly true that an instrument, conveying a benefit, whatever form it may assume, if it has the character of a testamentary paper to be consummated by death, may be admitted to probate as testamentary. And it is also true, that from a principle, which more or less governs all Courts, to be astute in finding out a mode of giving effect, in one way or another, to every instrument (as was observed by Sir John Nicholl, in *Thorold*v. Thorold, 1 Phill. 1,) papers containing dispositions of property to be made after death, although made in the form of and intended to operate as settlements, deeds of gift, bonds or other perfect acts *inter vivos,*yet because they *could not*operate in that character, have been allowed to operate as wills or testamentary papers. And among the most prominent of the instances referred to by that learned Judge, in which this astuteness has been prac-tised, are cases of “ Scotch *conveyances”*— Masterman v. *Maberly, 2*Hagg. 235. Yet these very considerations shew that, *prima*facie, the form of the instrument and the mode of its execution, are to be regarded as indicating its distinctive character, and the astuteness exercised to impress upon them a different character, is not only evidence that for this purpose it was necessary to *resort to*astuteness, but this astuteness is permitted for the purpose only of securing to it some operation.

The general *structure*of the instrument very clearly, we think, imports an immediate conveyance. There is not one word in it of a gift after death — of devise — or of bequest. And here it is fit to notice an error in the bill where the *475word *u*bequeath” is improperly inserted. It does not occur in the instrument. All men are thereby called upon to take notice — these are its words — ■“ that I have given, granted, assigned, disposed and conveyed, *as*I give, grant, assign, dispose and convey,” the property therein described to the persons therein named. She then proceeds to *covenant*with, these grantees as follows: *“*and I bind and oblige me and rqy heirs and successors, (it is difficult to imagine who *these*arej if the covenantees be in our sense of the word her executors,) to make and deliver all writings necessary for making these presents valid and effectual.” Then, after setting forth the main purposes and trusts for securing the performance whereof the conveyance has been made, *some*of which, it is admitted, cannot be completely executed until after her death; and in order the better to accomplish the object thereof, power is given to the grantees in these words, “ with power to the said Alexander Kissock, &c., &c-, to sell and dispose of the said estate, to bring actions for the recovery thereof, to grant conveyances and discharges to the purchasers and others; and generally to do every thing in the premises” (not which I could do, if living — but) “ that *1 could have done before the granting*hereof.” If any lingering doubt yet remained as to the true character of the instrument, it ought to, be removed, we think, by the care which she has used to secure to herself the income or annual value of the property so conveyed in trust — and the power which she has expressly reserved during life, of revoking the act which she has done. The language of the deed is, “ and I reserve my own life-rent in the premises, and power to alter, innovate or revoke these presents in whole or in part, at any time hereafter.” How idle is the reservation of a life-rent — or of the income during life, out of the proceeds of property which until death was to remain wholly and absolutely her own ! How nugatory the reservation of a power to revoke during life that which was to become her act *only*upon her death!

Nor do we feel the difficulty which has been suggested in the argument, of a repugnancy between the reservation to the donor of a life-rent, and the immediate gift to the trustees of the property out of which it is to arise. The reservation is *476not of the property itself, and can clearly be supported by our —an<^> as we suPPose) by eveiT law which holds it the duty of trustees to preserve inviolate the confidence reposed *n —as a trust w^c*1 t^ey are enjoined to permit or ful-fil. Upon full consideration of this objection, therefore, the Court is of opinion, that the instrument in question purporting to be a deed, is valid as a deed to convey the property now in controversy to the persons therein named for the trusts declared by the grantor.

The next objection to the relief of the plaintiffs, relied on by the counsel for the defendants is, that the trustees are improperly joined with the plaintiff Sarah, as parties plaintiffs. In support of this objection it is said, that if the deed of the 13 th of August, 1830, conveyed the property in dispute to the trustees, then it appears, by the shewing of the plaintiffs themselves, that these trustees, by their deed of transferrence and devolution of the 4th and 6th of August, 1832, assigned to the plaintiff Sarah the whole of their estate, title and interest; so that at the time of filing this bill, they had no remaining interest therein or concern therewith. It is then insisted, that according to the well established principles of Courts of Equity, if there be several plaintiffs in a bill, some of whom have an interest and others have no interest in the matter of the suit, and this.appear upon the face of the bill, a general demurrer to the whole bill is a good defence. *King of Spain*v. *Machado,*4 Russ. 225 (3 Eng. Con. C’y- Rep’ts. 643.) It is further insisted, that if this do not appear on the face of the bill, but is brought forward by a plea, such plea is also a good defence to the suit. *Makepeace*v. *Haythorn,*4 Russ. 224, Ibid 652. And it is contended that whether this appear on the face'of the bill Or not, yet upon its being shewn at the hearing, none of the plaintiffs will be permitted to have a decree; and this position is supposed to be strongly intimated, if not distinctly declared, by the Master of the Rolls, in *Bill*v. *Cureton, 2*Mylne and Keene, 503, (8 E. C. C. Rep’ts. 103,) and by the Chancellor, in *Glynn*v. *Soures,*3 Mylne and Keene, 450, 9 E. C. C. Rep. 132.) For reasons which shall be assigned hereafter, we shall not enter into a full consideration of the questions of pleading and *477practice which this objection seems to present; but we deem it not amiss to observe, that notwithstanding the intimations 7 * of opinion referred to, we leave it as a point fit for further ex-animation, and quite open for discussion, whether an *n .*. *r*' . , . .„ tion to a want of interest, in *some*of the parties plaintiffs, which might have been effectually urged by way, of demurrer or plea, will be deemed fatal to the relief of the others, if, at the hearing’, the case be made out on which the bill claims relief. And while we distinctly admit the position that where one. who has no right to sue by himself, and who is an entire stranger to the defendant, is joined as a co-plaintiff with those having a right to sue the defendant by themselves, advantage may be taken of this improper joinder by plea of demurrer, we are not prepared to say that this principle ever applies where assignor and assignee join in the assertion of a claim, as to which there has been at least — if it do not yet continue — a privity between each of them and the defendant. 'We find the doctrine thus far completely settled, that in those cases where the assignment is absolute and unconditional, and leaves no remaining liability or right in the assignor which, can be effected by the decree, the assignor *need*not make him a party. But we have not found that if he be needlessly made a party, *this*constitutes a valid ground of defence. See *Ryan*v. Anderson, 3 Mad. *97*— Smith v. *Brooksbank*and *Moore*v. Blagrave, 7 Sim. 18, (9 Con E. C. Rep’ts. 456— 458.) But, however this may be, it is certain that if there remain, notwithstanding the assignment, any interest — right —or liability in the assignor, which can be effected by the decree — a *scintilla juris*even — there he is a proper, and, in most instances, a necessary party. Such is the case here. The bill indeed states that the trustees executed to the plaintiff Sarah a certain deed of devolution and transference, whereby they conveyed to her the whole trust property as amply as they had held it for her use, and whereby they denuded themselves of their trust, and the feme plaintiff became entitled to receive the funds; but this allegation must necessarily be understood as charging only as full a devolution and transference as by their deed the said trustees could rightfully make. It was not in their power, by any instru*478ment which they might execute, to transfer to the feme plain- ^ so thoroughly and absolutely all the rights and authorities conferred upon them by the deed of settlement, as to leave them, in the contemplation of this Court, without a material interest in, and liability for, the property, the subject of contest. Under the deed of settlement, the enjoyment of the property is not only secured to the sole and exclusive use of the plaintiff Sarah, but every interference of her husband therewith is most strictly interdicted. This Court cannot allow an operation to their deed of transference which will put this property directly into the hands of the husband; and such would be the necessary result of a transference of the whole interest to her without the intervention of a trustee. But besides, there are certain contingent trusts for the benefit of the issue which the said Sarah may have, which trusts have been confided to the said trustees, and which they cannot devolve upon others. The effect — and the whole effect of this deed of devolution, as regards this suit, is a solemn acknowledgment by the trustees of their assent that the *whole immediate beneficial interest*in this property may be decreed to their co-plaintiff. We are therefore of opinion that this objection also will not avail the defendants.

The remaining objection is, for that the bill has made parties defendants thereto, not only the administrator *de bonis non*of Ann Charteris, but the executrix of the deceased administrator; that the latter is responsible, not to the plaintiffs, but to the administrator *de bonis non,*that the relief of the plaintiffs is' direct against such administrator, and should therefore be sought against him only. This objection we think is clearly untenable, and, in support of that opinion, we rely on the athority of *Brotten*v. *Bateman*in this Court. 2 Dev. Eq. Repts. 115, and refer to the reasons assigned in that case, and also in the case of *Holland*v. *Prior,*1 Mylne & Keene, 237 (7 Con. Eng. C. Rept. 22,) in both of which the very objection was deliberately considered and overruled.

There must be a reference to take the accounts required by the plaintiffs.

Per Curiam. Decree accordingly.

*479Upon the return of the report, made by the commissioner under the order of reference, to state the accounts in this cause, exceptions were filed, and, thereupon, the following opinion was pronounced by his Honor.

T •, ml . . (jaston, Judge. The commissioner’s report exhibits two views of the account directed to be taken in this case-— If the plaintiffs be entitled to the moiety of the effects of John Charteris, which was bequeathed to' his sister, Ann Charteris, the commissioner finds the amount due them, to be $7,208:15 cents; but if the plaintiffs be not entitled to that moiety, then he reports the amount due, to be $5,798:37 cents. The question of law, presented by the report, arises upon the following facts: John Charteris, bequeathed all his property to his two sisters, Ann Charteris, and Jane McDonald, with an express limitation, that if either of them should die without a child, or children, living at her death, *l!*the whole should survive to the surviving sister, her heirs and assigns.” Ann Charteris died without having been married, but there was living, at her death, the plaintiff Sarah, who was born to her out of lawful wedlock, long before the execution of John Charteris’s will,and who was recognized by the said Ann, and by her friends, as the child of the said Ann; and in whose favour the deed of settlement was made of all the property of the said Ann, which has been established in this cause. It is insisted, on the part of the plaintiffs, that the said Ann did, in the sense of this will, leave a child living at her death, and that therefore the limitation over to Jane McDonald, did not take effect. .The court has no difficulty in pronouncing that, according to the legal construction of the will, Ann Charteris did die without leaving a child or children living at her death, and that the limitation to the defendant, Jane, did take effect. This is not the case of a bequest *to*the children of the testator’s sisters — much less to their children, then in existence. It is a prospective disposition in favour of the surviving sister, upon the contingency that the other should not leave child or children behind her. Now, without deciding upon the effect of a bequest explicitly made to the children which a woman may have, whether legitimate or natural — -or upon the effect of a limitation, in *480case a woman should not leave living at her death any child, w^et^er legitimate or natural; it is enough to say, upon the present occasion, that it is perfectly clear that the word “children” *per se*imports in law, legitimate children; and that / , . 1 . ° . , . none but legitimate children can be understood as embraced unless, upon the instrument to be construed, it man-ifestly appears that natural achildren were thereby intended. (See *Wilkinson*v. *Adams.*1 Ves. & B. 422.) Nor is legal import of the term “children” at all altered by the *°*. .. ,, . , ,. .acts of our legislature, which permit, where a woman dies intestate, and without legitimate children, “those commonly called illegitimate or natural children” to succeed to the pro-° . _ . , , perty of their mother. They are not thereby made, in law, the children of their reputed mother, but enabled to take her property where there are none such, under the description of *i 1 J 1 e** persons “ commonly called illegitimate or natural children.” court therefore sets aside the account taken by the com-missioner, upon the basis that the plaintiffs are entitled to the moiety of the effects of John Charteris, bequeathed to his Ann.

“children” portsMnm" lew, mate children, and legitimate children can be understood as fTMantn-strumeht TM'OVKJUie for “chil-ifestiy ap-nmami by intended. *Nor is*the legal thetermf «■children” ed by ihe Legislature'to *iit-it*ch^38* Huieio, sec 4.)’ ’ ■which pe» a woman tlte ániT" withoutie-g’timaie chil.ireu, moír/caU-ed liiegm-succeed to ty^riheiT mother,

Exceptions have been taken by the plaintiffs to the other *1*. . account. The nrst exception is. tor that the commissioner hath allowed kcommission of *fiveper centum*to the exec-utrix of Ronald McDonald, when, according to law, no com-mission should be allowed. So far as this exception extends the allowance of any commission, it is not well found-e(^! ^01’ ^ one not aü°we<^ t0 the defendant Jane, *personal-*’/y, but to her testator, and is not forfeited, as alleged on the part of the plaintiffs, by the unconscious resistance she has ma(je to their just claims. But the rate of commission is manifesly unreasonable. The whole estate of Ann Charte-ris, with which the late R. McDonald is charged, consists of three sums of money- — two received from Mr. Morehead, the . *J■ ?*administrator of John Lenox, and the other received from Mr. Town, a professional gentleman of Virginia, being the saj¿ Ann’s one third part of the nett amount of collections there made for John Lenox’s representatives: and there are no disbursements. The moneys thus received, simply remained in his hands until his death. The ground upon which the commissioner allowed this rate of commission, *481was, that an order had been obtained in the County Court of Rockingham, by the defendants, since the reference of the accounts, fixing 5 per cent, as a proper commission. Whatever respect this court might feel itself bound to pay to such an order, had it been made before this suit was instituted, it regards an order in relation to a matter under investigation *°*..... . , *here,*as furnishing no criterion by which to regulate the proper allowance. The commisssioner should have reported what he deemed a reasonable commission, and if there . ' ground to expect that any investigation to be made by him, could change the view in which the subject of commissions is now presented, we should recommit the report for his re-visal. But thinking it unnecessary to delay the final decision of the cause for the mere form of such a recommitment, we allow the exception for the excess over 1| *per centum,*credited as a commission to Ronald McDonald, and overrule it as to the residue. The remaining exception of the plaintiffs is, for that the master in the said account, hath not charged the tate of Ronald McDonald, for the interest or profits on a _ , . _ . . moiety of the estate of John Charteris, up to the year 1830, when Ann Charteris died. In strictness, there is ground tor this exception. Until the death of Ann Charteris, the estate of John Charteris, belonged beneficially to the said Ann and Jane McDonald, equally; and, therefore, although upon the death of Ann Charteris, her moiety of the estate survived to .the said Jane, yet her moiety of the *profits*did not pass therewith. But the court will not recommit the report because of this exception. It is admitted that the claim was not advanced before the commissioner, and not thought of until after the report was made. It does not appear that there was, in fact, any profit on the estate, between 1827 and , . - , . , 1830 — and it is certain, that - if there was any, the moiety of the plaintiffs therein, must have been very inconsiderable.— For the *whole*estate, with the accumulation of interest *'*. on, for three years after the death of Ann Chartens, that is to say, in November, 1833, appears to have been but $1,032.

The master ¡n reporting mmbtra-ad~ count referred to him, ^hat heStat° . commission mLisu-ator; da court-will,' lt necessary, for his re-visal in that particular,

be ri^ht in {^"“hepár-h omitted ' to advance it before ^ appear that in fact there is any fTMoHft0r * yr<fry considerable, the court-wiu *482recommit the recount°of?t.

*481The report, according to the second view presented by it, is to be corrected, by deducting the excess of commissions *1 J*° allowed to Ronald McDonald; and, after that correction, is *482confirmed. The commissioner is allowed $25 for taking accounts> to be included in the taxation of costs, and the plaintiffs will have a decree for the amount due them, and also a decree for their costs against Jane McDonald.

Pee Curiam. Decree accordingly.

MEMORANDUM.

At a meeting of the Governor and Council, held at the Executive Office, on the 10th of February, 1840, Edward Hall, Esquire, of the town of Warrenton, was appointed a Judge of the Superior Courts of Lav/ and Equity for this State, *vice*Judge Saunders, resigned.