#### JOHN C. DAVIS *vs.*MARTIN R. GARRETT.

June 1843

No specific tangible property can be attached, which cannot bo sold under the execution after judgment obtained.

Where an estate is vested in trustees, and the purposes of the trust requite that the legal estate shall remain in them, the property so conveyed cannot be sold under execution, so as thereby to divest the trustees of their estate, or any part of it.

The owner of property attached is not obliged to interplead, though he may do so for the sake of convenience. A sale under an execution, issuing upon a judgment on an attachment, only passes the right of the defendant in attachment.

Appeal from the Superior Court of Law of Warren County, at Fall Term, 1842, his Honor Judge Battle presiding.

This was an action of debt upon a note executed by the defendant to the plaintiff, and was commenced by original attachment, which was levied upon the defendant’s interest in four negroes, and returned to Warren County Court. At the term to which the attachment was returned, William Burt and John A. Burt filed" their petition in writing, therein setting forth a claim to seven eights of one undivided fifth part of the slaves, as -trustees for the children of the defendant Garrett. In the Superior Court an issue was made up between the plaintiff and the said petitioners, to determine what interest the latter had in the slaves levied upon. And upon the trial of the said issue it appeared, that sometime in the year 1833, William Burt, sen. died, leaving a last will and testament in writing, which was duly proved and recorded. A copy of the material parts of the seid will, which was made and proved in 1823, is as follows:

*460*“Hem.*I give in trust to my sons, William Burt and John A- Burt the following property, that is, three negroes, Jesse, Henry and Rosina, now in the possession of my daughter Lucretia A. Garrett, also one .equal part of my estate, not otherwise given -away, at the death or marriage of my wifegalamith Burt; the above property to be under the entire control of my two sons named above, and to be managed by them as in their judgment will be most conducive to the mutual benefit and interest of my daughter Lucretia A. Garrett and her children ; and as the children come of age or marry, that the property so managed shall be equally divided between her and her children, .and that at her death her part thereof should be equally divided between her surviving children. *Item.*It is my will and desire that my two married daughters, Salamith Sims and Lucretia A. Garrett, should, in the division of my estate of negroes, stock, furniture cfcc. have so much given them, as to make their negroes now in their possession of equal value with their other sisters’ negroes, and the property so given to come under the same regulations and restrictions as their other property before given. *Item.*It is my will and desire that all my property, not specifically given, should be kept together and managed for the mutual interest and benefit .of my wife and three daughters, Elizabeth, Ann, and Harriett D. Burt and my son John A. B.urt, and as they come of age .or marry, that the above property should be equally divided between my wife and four 'children above named, with this reserve, that my son John A. Burt-is to have only an equal part of my negroes, -with one horse of his own choosing out of all my stock, and that at the death or marriage of my wife her part of the above property to be equally divided between my five daughters or their surviving children. *Item.*It is my will and desire that all my land in Halifax county should be sold, and the proceeds divided between my five daughters, under the same regulations and restrictions as their other property.”

The petitioners are the sons of the testator, and the Wif liam and John A. Burt mentioned in the said will — and Lu*461cretia A Garrett, also mentioned in the said will, as daughter of the testator, is the wife of the defendant Garrett. The slaves levied upon, are .those which felL to the widow of the testator in the division, which was had between her and her four children, as directed in -that part of the will, where the testator disposes of his property not-specifically'given away. The testator, at the time of making his will, had five daughters, of whom Mrs. Garrett was one. The widow of .the testator died a short time before the attachment was sued-out, and at that time Mrs. Garrett had seven children. Upon the trial of the issue, his Honor instructed the jury, that seven-eights of one-fifth of the slaves levied' upon belonged to the petitioners as trustees for Garrett’s children, and were not liable to the satisfaction of the plaintiff’s recovery. The jury found a verdict in conformity to this opinion of the court, and judgment having bpert rendered accordingly, the plaintiff appealed.

No counsel appeared lor -the plaintiff in this court.

*Edward Hall*for the petitioners,

submitted the following written argument:

It is submitted, on the part of the garnishees in this case, that the property seized by the sheriff at the instance of the plaintiff, was not liable to attachment; but, if liable, the garnishees then insist, that only one undivided eighth part thereof can properly'be condemned, the residue belonging to Mrs. Garrett’s seven children ; and likewise that her share of the property can be condemned only during her life, - her children being entitled to that share after her death.

The bequest to Mrs. Garrett, contained in that pari of the testator’s will, in which he provides that at -the death or marriage of his wife, the property that might' fall to her in the division which was to take place between her and her lour children, to-wit, Eliza, Ann, Harriet and John, should be equally divided between his five daughters or their surviving ¿children, is subject to the trusts before declared, and parties *462u|ar]y set forth iu the preceding part of his will, in which he constitutes his two sons,William and John,trustees for Mrs. ^arrett an(^ ^ier children,and bequeaths to them in trust in that character,three slaves therein described as then beingin the possession of Mrs. Garrett, *and also one equal fart of his estate not othenoise given*away, *at the death or marriage of his wife.*This is evident, not only because the testator has expressly so declared, but it is apparent from the other dispositions in favor of Mrs. Garrett, in other clauses of his will.— In that part of his will, in which he devises his lands in Halifax to be sold, and the proceeds to be divided among his five daughters; and that, in which he provides, that in the division of his estate of negroes, stock of furniture, &c. his two married daughters should have enough given them to make their negroes then'in their possession of equal value with their other sisters’ slaves, in each case, he subjects the bequest to the same regulations and restriction that were to control and govern the other dispositions he had made in favor of his daughters. But with respect to the estate which should fall to Mrs. Garrett and her children at the death of his wife, the testator was aware that he hod already, in a preceding part of his will, sufficiently declared his intention and wishes, and therefore, in the clause providing for his wife, and directing the distribution, at her death, of the property loaned to her for life, he makes no express reference to the trusts before created for the protection and management of Mrs. Garrett’s and her children’s share of this remainder: In the other two parts of his will before alluded to, because the testator had not previously subjected the property, therein bequeathed to Mrs, Garrett, to the trusts, by any connecting expressions or words of reference, he therefore, in each case, accompanies the bequest with a declaration, bringing them under the same regulations and restrictions which.had before been prescribed, and which were to govern and qualify the other provisions of his will in her favor. The expression, '‘regulations and restrictions,” used by the testator in the two parts of his will above noticed, have nó application, as far as respects Mrs. Garrett, unless they are consider*463ed as referring to the trust before created and declared ; for there is nothing in.the will which can be attached, as a *reg-illation or*restriction, to the property given to her, but the trust. Any other construction of the will would give to Mrs. Garrett not only an absolute interest in the estate bequeathed to her at her mother’s death, but an estate to be held by her, in severalty, to the entire exclusion of the trustees and her children. That the testator designed this, can be affirmed only upon the supposition that his mind underwent a change in the short interval which must have elapsed, between the penning of that-part of his will, in which he appoints trustees to take charge of the property therein specifically given to his daughter, and her children, and the property he therein after intended to give them at his wife’s de_ cease, and that .part of his will, in which he designates the donees of the property given to his wife, at the expiration of her life estate. 'Such a construction would force the testator to contradict himself, and impute to him an inconstancy of mind, and capriciousness of purpose, unwarranted by the character of the other-provisions of his will. The property, lent to his wife during her life, is to be divided at her death equally among his five daughters, or their surviving children. Now this expression, *“or their surviving children"*(if indeed, the testator intended to apply it to M.rs. Garret, or her share of that property,) was probably suggested by the idea then occurring to his mind, that his widow might survive Mrs. Garrett, and, in that event, her children, under the preceding part of his will, would take the estate unincum-bered with the trust. But a more suitable operation, and one more in accordance with the previously declared purposes of the testator, may be given to the expression, by referring it to his other four daughters, whose shares in this portion of his estate, had not been before the subjects of his special consideration, and formal and minute adjustment.— The previous directions of the testator in relation to the disposition and management of the property which he designed for his daughter, Mrs, Garrett, and her children, at the *464of his wife, made it unnecessary for him, when he came to dispose of the remainder in his wife’s legacy, to say more touching the share of Mrs. Garrett and her family in that remainder, than to fix the *quantum*and kind of interest which was to be enjoyed by them. To have detailed the manner in which, and the terms and conditions upon Which-they'were to hold and enjoy the interest given them, would have been only repeating what had already been expressly and fully declared. It is evident from the' whole body of the will, that the testator intended' to- exclude the husband of his daughter, Mrs. Garrett, from participating in the control and management of the'estate, at least, until' a division took place between her and her children, and the court will supply any words, or modify any defective expression, to execute his intentions. See *Davis•*& *tpife*v *Cam’s Etx'rs.*1 Ired. Ec[. Rep. 304.

It is clear,-that the'remaindetin the property given to his wife is the-estate, out-of Which (in that part of his will wherein he bequeaths three'negroes to the trustees for the benefit of Mrs. Garrett and her children, and also' one equal part of his estate not otherwise given away at the death or marriage of his wife,) he contemplated making an additional provision for her and her children. If not so, the last part of this clause of the will would be inoperative, because (here' was nothing left but this remainder to be given away.

If the foregoing views exhibit the will *in its*true *sense*á'nd meaning, then one undivided fifth part of the slaves upon which the attachment Was levied, was, at that time, held by John and William Burt, in trust for Mrs. Garrett and h‘er children, they, the *cestui que trusts,*being equally entitled as tenants in Common ; and the question upon thatstate of the case arises, was the interest of the husband of Mrs. Garrett, in right of his wife, whatever it-might be, liable to attachment? It is confidently submitted upon the authority of the decision in the case of *Gillis*v McKay, 4 Dev. 172, that it was not.

By the tetas of she1 will, the trustees are to have the en-, *465tire control and management of the property until one the children marries or arrives at age, when an equal division is to be made between the wife and children. If the share of one of the *cestui que trusts*could be sold under execution before the arrival of the period fixed by the will for the division, the purchaser would hold such share, discharged from the trust, as tenant in common at law with the trustees named in the will; and being thus constituted a legal owner of one undivided part; of the estate, would have the same power of control and direction that the testator had exclusively confided to the trustees. The purchaser might thereby acquire what the person, under whom he claimed, or to whose rights he had succeeded, could obtain neither at law, nor in a Court of Equity. Now the act subjecting trust estates to execution, could contemplate extinguishing the trustee’s legal power over the estate, or transferring his legal title to the purchaser, in no other cases but those where the *cestui que trust*himself had a right to call for a conveyance of the legal ownership, certainly not in a case where the effect of such an extinguishment or transfer would materially interfere with the rights of the other *cestui que trusts,*embarrass the trustees in the execution of their duties, and in a measure defeat the purposes of the donor of the estate. In this case, another inconvenience would result from a sale under execution of a share ot the slaves be fore the arrival of the appointed time of division. It is uncertain before that time what the share of each legatee* will then be. For that depends not only upon the number of children that were living at the testator’s death, but, in addition, upon the number that shall have been born in the intermediate period from that time to the period of division.— All the children born in that interval will be entitled. See *Vanhook*& *others*v *Rogers' Ex'rs.*3 Murph. 17S. *Knight*v *Wall, 2*Dev. & Bat, 125.

Now, if upon any supposed contingency, in a case circumstanced like the present, a Court of Equity might be induced to entertain a bill for partition among the equitable owners, before the arrival of the period for division fixed by the *466testator, the court would not grant a decree for that purpose, without exacting security1 from the parties to refund in the event of the birth of other children before the regular time ° of division. But if the property is liable to attachment or execution, then the purchaser gets a legal title, free from the obligation of refunding in favor of after-born children. For if liable to attachment, it must be condemned absolutely and unconditionally, a court of law law having no power to deal with the trust fund as a court of equity would deal with it, or to impose such terms upon the attaching creditor as the principles of equity would prescribe as a condition precedent to any decree in his behalf.-

Rufpjn, C. J.

Very much' for the reasons given in the full and satisfactory argument of the counsel for the inter-pleaders, the court is of opinion, that the judgment should be affirmed, indeed, we think, that the interest of the wife in' the negroes is not the subject of attachment at the suit of the husband’s creditors; because no specific and tangible property can be attached, which cannot be sold under the execution, after judgment obtained. And we are of opinion, as stated in the argument, that the purposes of the trust absolutely demand, that the legal estate should vest in the trustees ; and, therefore,-that the property cannot be sold under execution, so as thereby to divest the trustees of their estate or any part of it, in the present state of the family. However, that question does not arise here cm the record', as it stands; though we have thought it proper to notice it, in the hope of preventing unprofitable and vexatious litigation. For, although the trustees have interpleaded forseven.-eights only of this share of the negroes, that will not conclude them as to the other eighth ; since the owner is not obliged to interplead, though allowed to do so for convenience, and the sale under the execution only passes such right as the defendant in attachment has in the thing attached or sold.

Per Curijím. Judgment affirmed.