#### Maston Rippy and Wife *vs.*Daniel Gilmore and others.

Where a tenant for life sells a negro which is afterwards carried out of the State, on bill by the remainder-men for recovery of the value, the estate of the tenant for life is first liable — the purchaser only secondarily.

This case was first heard at June Sittings, 1856, for Spar-tanburg, by Johnston, Ob. His Honor pronounced the following decree:

Johnston, Oh. This is a bill on behalf of legatees of Roderick Arndell (Arundell ?) for the construction and enforcement of the will of the testator. This will was executed the 1st of August, 1826, and contains, among other things, the following:

1. “ I bequeath to my beloved wife, Rhody, the land and plantation whereon I now live, during her natural life or widowhood, and then to be divided as hereinafter directed ; also, one negro woman named Eliza, and one negro boy, Wiley, in the same manner; also, one half of the value of the chattel property; also, all the crop that is now on the plantation; and that she shall pay all my just debts out of the latter, if sufficient, and if not, the balance to be paid out of the value of the other half of the chattel property not devised to her.”

2. Then follows a disposition of the other half of “the chattel property.”

8. “ It is my will and wish, that at the death or marriage of my said wife, the land shall be divided * * * in the fol*366lowing manner * * *; and that the balance of the property, bequeathed to my wife during her life, shall, at her death, or marriage, be equally divided between the before mentioned legatees, * * And testator’s wife, Rhody, was constituted executrix. She is now dead, and her administrator is 'one of the parties to the suit, though not in his official character.

One of the questions in the case is, whether the widow took what the will denominates the chattel property *(i. e.*the half of it) absolutely or for life only. In the latter case, it is agreed that though her administrator is not officially im-pleaded, the objection be waived and an account decreed as to this portion of what the widow took under the will.

The Court after a careful examination of the different parts of the will, is of opinion (and so adjudges) that this chattel property was given absolutely, and that no party before the Court is entitled to claim a remainder therein under the testator’s will.

On the 24th of February, 1846, the widow, Rhody, in consideration of two hundred and fifty dollars, paid her by one John Sarratt, now deceased, but whose personal representatives -are parties defendants, sold and conveyed to him Emeline, a small girl, child of Eliza, warranting the title; and subsequently Sarratt sold this negro, and she has been carried out of the State, and cannot now be found. The bill seeks an account from the estate of the life-tenant, and Sar-ratt, her alienee, for the value of Emeline.

There is no ground for inferring that Sarratt made the purchase without notice of the nature of the title, and certainly the life-tenant had notice; so that the legatees in remainder are entitled to the full value of the slave, (theré is no averment of increase) and have their remedy by way of account against either or both the parties to the devastavit.

*367A question will arise between Sarratt’s estate and that of the widow, with regard to which of them is primarily liable.

It seems very plain that if the sum of money placed by Sarratt in the hands of his vendor, as the equivalent of the slave, were, at this time, an actual equivalent, full justice would be done by declaring that sum to be the primary fund. But it may, and probably will, turn out that the legatees can entitle themselves to a much greater sum, as the real value o.f the slave. They are entitled, in analogy to the law of trover cases, to the highest value of the property since the right in remainder accrued by the death of the life-tenant.

Should a greater amount be established, then the question will be, as between the vendor and vendee, who shall bear the loss. It is clear that Sarratt will be entitled to a restitution of his purchase money from the estate of Rhody Arn-dell. But is he entitled, in case the remainder-men make good their damages against him, to recompense for more than the price paid for the warrantee given him. My impression is that this point should be settled thus : The legatees should be required to exhaust their remedy in the first instance by resorting to the estate of Rhody, which is liable to them for'the full value of the property. If they then resort to Sarratt’s estate, and that should be obliged to pay more than the value affixed to the slave in his purchase, then I think he would be confined, in claiming indemnification from his vendor to>the price he paid. But I do not conclude this point now. Let it come up by exception from the Commissioner’s report.

It is ordered that the matters of account be referred to the Commissioner.

At June sittings, 1857, the Commissioner submitted his report in which he stated, that he had ascei’tained the value of the girl Emeline to be eight hundred dollars, and recommended that the estate of the tenant for life be charged in the first instance with the value.

*368The case was heard on exceptions to the report before Dun-kin, Oh., who pronounced the following .decree:

Dunkiw, Oh. This case was heard on the Commissioner’s report. The estate of Rhody Arndell, the life tenant, is primarily liable to those entitled in remainder for the negroes which she received.

It is conceded that her estate is ample, and her legal representative is a party to these proceedings.

It is ordered and decreed that the report of the Commissioner, recommending that the estate of Rhody Arndell be charged with eight hundred dollars the value of the slave Emeline, be confirmed and become the judgment of this Court.

It is further ordered that it be referred to the Commissioner to examine and report as to the parties entitled to the funds, with leave to report any special matter.

The complainants appealed and now moved this Court to reverse the decree on the ground:

Because, from the case made, the estate of Rhody Arndell should not have been required to account for anything beyond the price she got for the girl Emeline. and the interest thereon, and that the estate of John Sarratt should have accounted for the remainder.

*Bobo,*for appellant,

cited Act of 1824, 6 Stat. 288, § 4, as to measure of damages. Sarratt had no notice. *Ware*vs. *Weatherall,*2 McC. 213; *Alexander*vs. Maxwell, Rich. Eq. Cases, 209.

*Per Curiam.*

The Court announces its concurrence in the decree appealed from. Ordered that the same be affirmed and the appeal dismissed.

Johnston, Dunkin, Dabgan and Wardlaw, CC., concurring.

*Appeal dismissed.*