#### James Rainsford and Wife *v.*Thomas Rainsford, Adm’r. of John Rainsford, et al.

The testator, in the *first*clause of his will, gives to his grand-daughter Esther, eleven negroes by name, absolutely and unconditionally,,and in a subsequent clause, he makes a similar provision for his grand-daughter ■ Mary, both then infant children of his son the defendant. In the eighth clause of his will, he says, “ and I do hereby appoint my son Thomas, (the defendant,) guardian of the said Esther and Mary, and direct that he shall have the *use of the property,*herein devised to them, until they come of age or marry, for their *maintenance and education.*Held, that the *use of*the slaves bequeathed to the defendant, was to be considered as an equivalent to him for the maintenance and education of his daughters, and that he was not, therefore, liable to any other *account*for the hire or income of the property, than to show that he had performed the obligation imposed upon him. (Johnston, Ch., dissenting.)

The £10 rule, as an *arbitrary*rule of value, in assessing the hire of slaves, against executors, trustees and others, has been, it seems, again and again wholly repudiated.

The obligation imposed on a trustee is, that he shall manage the trust estate in the same manner that a discreet man would manage his own concerns, and he is accountable if he neglects to perform this duty.

He is not permitted to take any profit to himself, and having discharged his duty faithfully, he is accountable for no more than is actually made. If he be wanting in the performance, he must account for what he ought to have made, and it will be seen at once that no arbitrary rule can ascertain the extent of his liability, and no case can furnish a rule for another. There is no possible way of ascertaining it by any other means than those which arise from the particular circumstances of each case.

Cases have arisen, and it may well be supposed that others may arise, where precise evidence of the value of the hire of slaves, could not be ascertained by *direct*evidence, and in those cases I still think that a *general average,*founded on a calculation made on the principles pointed out in the note to Lyles v. Lyles, 1 Hill. Ch. 87, may be relied on as furnishing a rule ; but whenever evidence of particular value can be obtained, that mode of ascertaining it cannot be resorted to. [Per Johnson, Ch.]

*Before HARPER, Chancellor, at Edgefield, June Term,*1838.

This case came up on an appeal from the decree of his honor Chancellor Harper, pronounced at June term, 1838, of the court of *344equity for Edgefield district. The questions raised on the appeal from his decree, and decided by the court at the present term, arose in part out of further proceedings had in the cause under a former decree of the appeal court in the same case, pronounced at December term, 1837. As the previous proceedings in the cause are necessary to a correct understanding of the decree of Chancellor Harper, and of the opinion of the court of appeals, a summary of them is here subjoined. The cause was first tried before Chancellor Johnson, at June term, 1837, when he pronounced the following decree.

“ The defendant’s testator emigrated from England to this country about the year 1773, and not long after settled in Edgefield District, where he continued to reside until his death in 1818. — . He had only two children — Joseph, whom he left in England and who has continued to reside there. He is the father of complainant James. The defendant Thomas, his other son, and who is the father of complainant Esther, he brought with him to this country.

The testator, with the assistance of the defendant Thomas, by great industry and prudence, from very small means, acquired a fortune estimated at between 45,000 and $50,000 at the time of his death. By his last will and testament, he gave to complainant Esther, 11 negro slaves by name' — these were delivered to her on her marriage in 1833, but she claims the hire or the profits derived from their labor, from the death of the testator to the time they were delivered to her.

The defendant denies his liability to account for hire. In another clause of the will, the testator gave to Mary, another daughter of defendant’s, a legacy of 15 negroes by name, and in the conclusion it contains the following clause: “and I do hereby appoint my son Thomas Rainsford,” (the defendant,) “ guardian of the said Esther and Mary, and direct that he shall have the use of the property hereby devised to them, until they come of age or marry, for their maintenance and education.” And the defendant insists, that having given to Esther such an education as was common in the neighborhood, and maintained her until her marriage, he is not liable to account for the hire of the negroes; and the complainants, on the other hand, charge that her education was neglected.

*345It is very apparent that the testator -did not intend that the defendant should be held to a strict account of the hire or profits to be derived from the labor of the negroes. The use of the negroes without reference to its value, is expressly given to him as a compensation for maintaining and educating Esther. The character and degree of education she was to receive is not expressed, but universal usage will furnish something like a rule on this subject. In providing for the education of a child, no one with ample means, who placed a proper estimate on the importance and necessity of education, would think they had done their duty without putting it on a footing of equality, in point of education, with those generally who belonged to the same rank and condition in society and who possessed the same expectations and fortune. A rich parent, surrounded by poor neighbors, could not excuse himself to his own conscience, if, because they were notable to educate their children, that therefore he would not educate his. In the absence of any standard of education for the different ranks of society, we are bound to suppose that the testator had reference to this general understanding of the community, and the' defendant was bound to conform to it, if the means (the income from the labor of the ne-groes) were equal to the expenses, and if he has neglected it, he must account for hire.

The evidence given on the trial, went only to show generally, that Esther had been as well provided for and educated by the defendant, as the other young women in the neighborhood; but there was nothing to enable me *to*judge of the character of the neighborhood, or of the standard of a common education there, nor was there any evidence of the value of the hire of the negroes. I have not, therefore, the means of determining the question as to the liability of the defendant to account — I shall, therefore, direct the commis,sioner to enquire and report upon this subject.

The important question in the case remains to be considered.— In the 5th clause of his will, the testator gives to John Hollings-worth and John Tarrants, certain negroes by name, and $500 in cash, in 1rust for JohaRainsford, his grandson, the son of Joseph Rainsford, then residing in England: provided the said John Rains-ford should, within ten years after the death of the testator, remove *346to and permanently settle in South-Carolina: and the following is the terms of the 6th clause, out of which the question to be considered arises, viz: “ I give and bequeath unto my said friends, John Hollingsworth and John Tarrants, the following negroes and their increase, Joe and his wife Hagar, and their children Nelly, Andre and Nancy, and also f500 in cash, in trust to and for the use, benefit and advantage of James Rainsford,” (the complainant,) “ son of Joseph Rainsfoi’d, now resident in England, .provided the said James Rainsford, within the term of ten years from the time of my death, shall remove to and establish his permanent residence and abode in this State: and it is my will and desire, that if the said John Rainsford and James Rainsford shall not, within the said term of ten years, remove to this State as aforesaid, that the said property so devised to the said John Hollingsworth and John Tarrants, in trust for them, shall be held in trust for the said Thos. Rainsford,” (the defendant,) “in the same manner and subject to the same limitations as the property hereinbefore devised to him.” Hollingsworth and Tarrants were also appointed executors of the will, but they both refused to qualify or accept the trust. Tar-rants has since died, and Hollingsworth, who is made a defendant, by his answer, disavows any interest in the matter and declines to have any thing to do with it.

In March, 1832, the defendant addressed a letter to his brother in England, in which he mentioned the death of the testator, and that he had left legacies to the complainant James and his brother John, of 5 or £600 value each, provided they came to America within ten years after his decease, and made it their abode. This letter reached its address in June following, and in April, 1833, the complainant James arrived in this country; at the next sitting of the court of common pleas thereafter, he took the preliminary steps towards becoming a citizen of the United States, and in the course of that year married the defendant’s daughter. He states in his bill also, that he has purchased land in Edgefield, and intends to make this State his permanent residence. The defendant has, notwithstanding, refused to deliver up the negroes or pay him the money bequeathed to him. He admits in his answer, expressly, that he took no means to inform the complainant J ames, or any of *347the family in England, of the death of the testator, or the circumstance and conditions of the legacies, and patting himself on his legal rights, he insists that he was not bound to give them notice, and that the complainant James is not *entitled to*the legacy, because he did not arrive here within ten years after the death of the testator.

It appears very satisfactorily from the evidence, that up to the year 1816, something like a regular , correspondence, though at pretty *long*intervals, had been kept up between the testator and his son Joseph in England, and occasional letters had passed between Joseph and the defendant; and Joseph, who was examined on commission, states that subsequently to the time at which the testator died, he addressed one letter to him and six to the defendant Thomas, One of these letters was addressed to “ Mr. Thos. Rainsford, or Mrs. or Miss Rainsford.” On the back of another was a memorandum, requesting that the post-master would inform him what had become of his father and the family. On another was endorsed a similar request to the post-master, minister, church wardens, or overseers, or some other person acquainted with the family — but he received no answers to any of these letters, and the letter of March, 1832, was the first notice that himself or any of the family there, had of the death of the testator. The defendant acknowledges in his answer, the receipt of one letter from Joseph, addressed to himself and several other persons, and does not pretend that he answered it. This letter, he says, is lost, and that he has forgotten the contents. The evidence establishes too, very clearly, that the defendant kept the family in England ignorant of the death of the testator, and of the provisions of his will, with a view to profit by their not coming to this country within the time limited.

Edward Mays, one of the witnesses, stated that he heard the defendant say, ten or twelve years ago, that he did not intend they should know it until after ten years had expired, and that then they could not get the legacies. To Charles Thomas, another witness, he said that the time had elapsed, and they could not then get the legapy. This was in 1832, and he offered to show witness a letter which he had then written to them on the subject, and in *348reference to the propriety of his not having before given them notice, he said “ he did not care to cut off his nose to spite his face.” .

The question then is, whether the defendant Thomas Rainsford, was or was not bound to give complainant notice of the legacy, and of the condition attached to it ?

The general rule is, that if a condition be annexed to a legacy, and no notice is. required to be given, nor any one bound to give notice, and the legatee do not perform it, the legacy is forfeited.— This is distinctly laid down, by the Lord Chancellor, in Chancy v. Graydon, 2 Atk. 618, and by the Master of the Rolls, in Burges v. Burton, 3 Meriv. 9. The. will does not in terms require that notice shall be given. Was Thomas Rainsford bound to give notice *1*

It is a familiar principle'in .equity, that one who obtains possession of trust property, holds it subject to the trust, and is consequently liable to all the duties and responsibilities of a trustee.— The defendant, therefore, by accepting the administration, on the refusal of the executors to qualify or accept the trust, assumed voluntarily all the responsibilities that would have devolved on. them if they hdd accepted, with the addition, if that can be called a responsibility, that he was interested to conceal the facts from the complainant, as the legacy was limited over to him for life, remainder to his ^children, if the condition was not performed.

The correspondence between the testator and his 'brother Joseph, shows that he was solicitous about the latter’s moving to this country with his family, as a means of bettering their condition, and the.legacies to his sons were obviously intended as a temptation to induce them to come here. He knew that the defendant well understood the means of communicating with them, and he might well reason that the trustees could obtain information from him as to the means of giving them notice, and that they would act with disinterestedness and give the notice, and that duty became more imperative when it devolved on the defendant himself. The testator could not reasonably have calculated, when limiting over the legacy to the defendant, that he was holding out inducements to the defendant to disappoint what he had so much *349desired to accomplish. There was clearly a moral obligation on the defendant to give the notice, and his silence was a negative fraud. The evidence shows too, I think, a positive fraud. ■ Joseph had written frequently to the defendant to enquire what had become of the testator and his family, and one of these he acknowledges to have received — the probability is that he received them all. Candid answers to these, would have directly led to the death of the testator, and the circumstances of the will, but no answer was ever given. Now, let us suppose that the defendant had suppressed the will until after the ten years had elapsed, and upon an enquiry directly put, whether there was a will or not, he had been silent — would not that have been *suppressio veri,*and equally a fraud, as if he had positively affirmed that there was no will ?

It may be said that the will was of record in the ordinary’s office, and accessible to the complainant. But the testator never could have anticipated that the complainant would come here merely for the purpose of enquiring whether he was dead or alive, and had or had not made a will, and it was as effectually locked up from him, as if it had been'buried under the table rock.'

In Chancy v. Graydon, before referred to,.the testator left certain legacies to certain of his relations, to be paid on their marriage, provided they should marry with the consent of their father. — ■ Some of them did marry without his consent, and claimed the legacies notwithstanding, on the ground that they had not notice of the condition; but their claims' were disallowed, and the Lord Chancellor rests his judgment not only on the ground that the testator did not impose on the executors the obligation to give notice, but that they took no beneficial interest whether the condition was performed or broken, and hence the inference, that if they had taken a beneficiary interest, they would have been bound to give notice. If a testator will give a legacy to one at a distance, upon a condition of which he is likely never to hear, and cannot therefore perform, and limited over to another on the non-performance, provided he can contrive to keep the legatee in ignorance of it, I know of no rule which will restrain him. But I can never give my consent to lay down a rule which will not only defeat the intention of the testator, but hold out inducements to the *350perpetration of the most abominable frauds, and I put my judgment on the ground, that as the trustee in possession, and entitled to the legacy, in the event of the complainant’s not performing the condition, the defendant was bound to give notice.

By the will, the bulk of the testator’s estate is given to the defendant for life, and limited over in remainder on his death to his children, of whom the complainant Esther is one, and complainants charge in their bill, that the security of the defendant’s administration bond has become insecure and doubtful, and that there is .danger of the defendant' moving the personalty out of the State.

As' the tenant for life, the defendant is entitled to the possession -of the property without security. The defendant denies in his answer, any intention of removing the property, of going himself out of the State, and no evidence was offered on the subject. The •claim for further security for the administration, and an injunction to restrain him from removing the property, cannot therefore be •allowed.

The complainants pray also, that the defendant may be ordered to file a schedule- of the property limited over in remainder. As remainder-men, they are entitled to this, of course, and it will be ordered. The complainants charge-also, that a *debt due by one*Delavigne to the testator, of about $1000, has been either received and is unaccounted for by the defendant, or has been lost by his neglect. Delavigne, who has been examined by commission, states that the debt has not been paid to defendant, and that he is •unable to pay. This question, however, will more properly arise on exceptions to the schedule, which will be directed to be filed, if the complainants think proper to make the exceptions.

The defendant, in his answer, prays an account against his testator, to the amount of about #20,000, which he claims for services rendered in his lifetime.

The proof on the subject is, that the defendant resided with the testator, his father, from his infancy until he was about 50 years old, and unmarried. That during this period he was subjected to privations, and a rigor of servitude which few would be physically able to bear, and still fewer could be prevailed to submit to, and the witnesses say, that the testator’s success in the accunuda*351tion of wealth, was the result principally of the prudence, industry and perseverance of the defendant: and I have no doubt the fact was so ; but there is not even a pretence that there was any agreement or understanding between them, that the defendant should be rewarded for his services any otherwise than by such provision as the testator should think proper to .make for him voluntarily: and the rule is very clear, that if a child remains with a parent even after he is of full age, submits to his government and receives his protection, his rights and duties are .the same as during his minority. He cannot make a voluntary' service, a subject of compensation. . Besides, the defendant and his children are, under the will, entitled to at least 15-16ths of the whole estate, and this claim comes now with a bad grace — even if allowed to the whole extent, there would still be more than enough to pay the legacy to the complainant James, and the only effect of allowing it would be to defeat the interest of his children in remainder, and how else would the defendant dispose of it if he had the power ? ,

The bill also charges that defendant has, since the death of the testator, purchased personal property, consisting principally of negroes, with the funds of the estate on hand at the time of the death of the testator — and the complainants pray, that this may be adjudged to be a part of the estate limited over in remainder. This allegation is denied in the answer, and there is no proof in support of it.

It is therefore ordered and decreed:

1st. That the commissioner examine and report the value of the hire of the negroes bequeathed by the testator to the complainant Esther, from the time of his death to their delivery to her. That he also examine and report the probable amount expended in her maintenance and education, during the same period — what education she did receive, and what was the usual standard of female education, in that part of the country in which she resided, for persons of her rank, condition and expectations.

*2.*That the defendant do, within three months after notice of this decree, file in the office of the commissioner of this court, á correct account and schedule of all the property devised to John Hollingsworth and John Tarrants, by the third clause of the testa*352tor’s will, exhibited with complainant’s bill, in trust for the said defendant for *his*life, and after his death, in trust for his children, in the condition in which it now is — that he do also exhibit and file an account of the money on hand, and the proceeds of the 'crop on hand at the timé of the death of the testator, and if the same has been invested in property under the powers given in the said clause of the said will, that he do also file an account and schedule of the property in which it has been so invested, and if the said defendant shall have sold, or otherwise disposed of the whole, or any part of the property so devised to the said John Hollingsworth and John Tarrants in trust, and invested the same in other property, as authorized by the 7th clause of the said will, that he do exhibit an account of the said sales, and a schedule of the property in which the same has been so invested.

3d. It is also ordered and decreed, that the said Thos. Rains-ford, the defendant, do deliver to the complainant, James, the ne-groes Joe and his wife Hagar, and their children Nelly, Andre and Nancy, mentioned in the bill, and the issue and increase of the females, if any, and that he do account before the commissioner for the hire of the said negroés, from the time of the death of the testator until they shall be so delivered.

4th. That the said Thomas Rainsford do pay to the complainant, James Rainsford, the sum of five hundred dollars, with interest from the 19th day of July, 1819, being one year after the death of the testator.

5th. That the said defendant, Thomas Rainsford, do pay all the costs of this suit.”

[copy will.]

*State of*South-Carolina—

In the name of God, amen. I, John Rainsford, of the District of Edgefield, and State aforesaid, being aged and infirm, but of sound disposing mind and memory, thanks be to God, and being mindful of the uncertainty of human life, and desirous of disposing of what property it has pleased God to bless me with, have made this my last will and testament.

In the first place, I give and bequeath unto my grand daughter, *353Esther Rainsford, daughter of Thomas Rainsford, the following negroes, viz: — Mordecai and his wife Dills, and the children of Dills, viz: Ben, Sally, Abraham, Priscilla, Jenny and Mourning, and also their future increase, and the three following other ne-groes, Nat, Adam and Caesar, to her and her heirs and assigns forever.

Secondly. I give and bequeath unto my grand daughter, Mary Rainsford, daughter of Thomas Rainsford, the following negroes, twelve in number, and their future increase, viz: — Jack and Mary, and their children, Letty, Lewis, Milley, Jarrett, Temperance, Ralph, Stephen, Frederick, Franklin, and three other negroes, viz: Wilson, Peter and Geoffry.

Thirdly. I give and bequeath unto my trusty and well beloved friends John Hollingsworth and John Tarrants, all my lands in this State, consisting of about eight hundred acres, and also the following negro slaves: — Namomon, Sangar, Roman and Sam, and also all the money I may have on hand at the time of my death, one thousand dollars excepted, in trust to and for the use, benefit and advantage of my son, Thomas Rainsford, for and during the term of his natural life, and after his death, in trust for the child or children of the said Thomas Rainsford: and' if the said Thos. Rainsford should die without leaving any issue living at the time of his death, in trust' for the use, benefit and advantage of such person or persons as the said Thomas Rainsford, by his last will and testament, shall designate and appoint, and, in default of such appointment, to the heirs of the said Thomas Rainsford according to the laws of distribution in this State. And it is my will and desire, that as soon after my decease as conveniently can be, my executors, hereafter named, shall lay out and invest all the money herein before devised to the said - John Hollingsworth and John Tarrants in trust for the said Thomas Rainsford, in such property as the said Thomas Rainsford may choose, to be conveyed to the said John Hollingsworth and John Tarrants upon the like uses and trusts as the other property herein before devised to them.

Fourthly. I give and bequeath to the said Thomas Rainsford, all my stock of horses, cattle, hogs, and of every other description, and also, all my household and kitchen furniture, crop of every *354description, unsold at the time of my death, (that part of the crop which may be sold, and the outstanding debts to be considered among the cash on hand, and disposed of accordingly,) to him and his heirs and assigns forever.

Fifthly. I give and bequeath to my said friends John Hollings-worth and John Tarrants, the following negroes and their future increase, viz: — March and his wife Rose, and their children, Billy, Lucy,. Jim and Sukey, and also five hundred dollars in cash, in gold and silver, and bank notes, in trust to and for the use, benefit and advantage of my grand son, John Rainsford, son of Joseph Rainsford, now resident in England, provided the said John Rains-ford, within the term of ten years from the day of my decease, removes to and establishes his permanent residence and abode in this State.

Sixthly. I give and bequeath unto my said friends John Hol-lingsworth and John Tarrants, the following negroes and their future increase, Joe and his wife Hagar, and their children, Nelly, Andre and Nancy, and also five hundred dollars in cash, in trust, to and for the use, benefit and advantage of James Rainsford, son of Joseph Rainsford, my son, now resident in England, provided the said James Rainsford, within the term of ten years from the time of my death, shall remove to and establish his permanent residence and abode in this State. And it is my will and desire, that if-the said John Rainsford and James Rainsford shall not, within the said term of ten years, remove to this State as aforesaid, that the said property so devised to the said John Hollingsworth and John Tarrants, in trust for them, shall be held in trust for the said Thomas Rainsford, in the same manner and subject • to the same limitations as the property herein before devised to him.

Seventhly. It is my will and desire, that the said Thomas Rains-ford shall have the most free and perfect use of the property herein devised to his use, and if he should be desirous of selling and disposing of the said property, or any part thereof, he shall be at liberty to do so, and give titles in his own name, provided he invests the proceeds in such other property as he may choose, to be settled according to the provisions of this will. And it is my further will and desire, that the said Thomas Rainsford shall not be ac*355countable to his trustees for the rents, issues and profits of all, or any part of the property herein devised to him, the increase of the negroes excepted. And it is also my further will and desire, that the children of the said Thomas Rainsford, after his death, shall have the said property freed from all manner of trust and limitations whatever.

Eighthly. It is my further will and pleasure, that if the said Thomas Rainsford should die leaving other children, besides the said Esther and Mary, that the said Esther and Mary shall have no more of the property herein before devised to their father than may be sufficient to make their shares equal to the distributive shares of such other child or children. And I do hereby appoint my son Thomas Rainsford, guardian of the said Esther and Mary, and direct that he shall have the use of the property, herein devised to them, until they come of age or marry, for their maintenance and education.

Lastly. I do hereby appoint my said friends, John Hollings-worth and J ohn Tarrants, executors of this my last will and testament.

In witness whereof, I have hereunto set my hand and seal, this the twenty-fourth day of March, in the year of our Lord one thousand eight hundred and eighteen, and of American Independence the forty-second.

John Raxnsfoed, [l. s.]

Signed, sealed, published and declared by') the said John Rainsford, in our presence, j to be his last will and testament, who )- did subscribe our names in his presence! J as witnesses to the same. *J*

Stephen Pixley,

Rob’t D. Ellison,

W. Ellison.

From this decree the defendant appealed, and moved to reverse it, on the following grounds ;

1. As to the profits and hire of the property bequeathed to Esther.

*356The defendant will maintain that the testator entrusted to him a discretion as to the maintenance and education of his-daughter, and gave to him the use of this property without reference to its value: that no account can be exacted from him, without showing that this discretion was abused, and into the inquiry as to alleged abuse, the habits, manners- and opinions of the testator, and of this defendant, as known to the testator, necessarily enter; so that such maintenance and education, as from these considerations, it appears the testator expected, should satisfy the will, although they may have been below the standard which prevailed as to other persons in the neighborhood of the same wealth, but of different habits; manners and opinions.

2. As to the; legacy to James Rainsford.

The defendant will maintain, that the legacies to James and his brother, were inserted in the will by the testator, not as temptations to. induce ■ them to come to this country, but as temporary provisions for them in case they should come, made in conformity with the expectations raised by his letters of invitation. That the testator did not expect defendant, or his executors, to give notice to the legatees. That the defendant was not, as administrator or remainderman, bound to give notice. And that a breach of courtesy or brotherly kindness does not constitute fraud. • p

3. As to defendant’s claim upon the estate of the testator.'

The defendant will maintain, that an account should have been directed to ascertain what share rightfully belonged to the defendant, independent of the will, in the property held by testator and himself, at the time of the death of testator, or to ascertain what reasonable sum defendant should have as a compensation for his services, in the acquisition of the said property.

At December term, 1837, on the argument of. the cause in the court of appeals, Johnston, Ch. pronounced the following decree:

It is the opinion of the court that the first ground of appeal cannot be sustained.

I think the chancellor might have gone further than he did in his decree. The true construction of so much of the 8th clause of the will as relates to the question presented by this ground, is, I think, that the testator intended to give Thomas Rainsford no *357beneficiary interest in the property bequeathed to Esther and Mary Rainsford, but simply to give him the custody and control of it during their minority for the purpose of educating them.

The third ground is also untenable. Without giving an opinion on the principle advanced by the chancellor, that he who labors for another, on a mere expectation that provision will be voluntarily made for his reward, is not entitled to raise an account for his services; and without resorting to the rule laid down by him, that a child who, after attaining majority, remains under the protection and government of his parent, is, as to his rights and duties, as if he was still a minor, a rule perhaps not of universal application : it is enough to say that this defendant, as appears by the answer, did not, until his father’s death, consider his services as raising a pecuniary obligation against him, but as entitling him to a joint interest and ownership in the property accumulated. But this right is inconsistent with the will, under which he claims; having taken under the will, he cannot take against it. Besides viewing his claims as a debt, it is sufficiently certain that it is more than paid by his legacies.

The court is also of opinion, that the 2d ground of appeal must be overruled. I do not myself think, that there was any official obligation on the executors as trustees, appointed in the will, to give notice of the legacies; nor that there was any obligation on Thomas Rainsford, on the score of the property being limited over to him, to extend notice to those interested to defeat him : nor do I think the union in himself of 'trust and private interest, in consequence of his administering with the will annexed, subjected him to any such legal duty.

His duty, under the will, was to give it that publicity directed by the laws, by producing it to the ordinary, where by law, it was to be deposited and recorded for the information of all concerned. It becomes incumbent on those interested under wills, to take notice of all that appears upon the face of them when thus produced ; as is apparent from those cases in which it has been held that the legatees must take notice of the conditions annexed to their legacies. Their being obliged to take notice of the condition, is only a consequence of their obligation to attend to the bequests

*358themselves, to which the conditions are annexed. This principle of course cannot apply to secret trusts or conditions, not appearing in the will; as to these *there*may be a higher obligatipn on the executor to disclose them.

In expressing these opinions I have no authority to commit my brethren for or against them : nor is it necessary to determine any thing on this point.

The court is unanimously of opinion, that every executor is not only bound to produce the will in the proper tribunal; but that he is guilty of a fraudulent violation of trust if he does wilfully any thing to obstruct intelligence of its contents from reaching the legatees, or with a fraudulent intent refuses to answer any fair and reasonable inquiries, where the answer would probably be instrumental in leading the legatees to a knowledge of their rights. The least concealment, with a view to defeat the trusts, is a violation of trust. Now, when Thomas Rainsford received his brother’s letter inquiring about his father, he must have been aware that in giving a true answer, that he was dead, would lead his brother to inquire whether he left a will, and what were the provisions, (since, if no will was left, he would have been entitled to a distributive share of the personalty:) and that the discovery of the provisions of the will, by his brother, would naturally reach his sons, through him. To return no answer therefore, to his brother, was obstructing an ordinary channel of intelligence, to the prejudice of- his cestuy que trusts. The evidence leaves no doubt, that he saw *this*felly: *and*that his intention was to conceal, with a view to defraud his nephew, for his benefit.

It is ordered that the motion be dismissed.”

A reference was held before the commissioner on the first of May, 1838, to inquire into the matters of account.

The point to which the reference was first directed, was the hire of the negroes bequeathed to James Rainsford, and to this point the complainant’s counsel offered evidence as follows:

1st. George Harris sworn. — He is the overseer of James Rainsford, and knows his negroes very well — knows negro man Joe ; thinks Joe 40 or 45 years old, perhaps more ; has been an able bodied field hand since he has been under witness. Knows *359Andrew, is a stout looking negro fellow, about 25 years old, is an able bodied negro as common. Negro fellow Brit is about 18 or 19 years old, he is an able plough hand. Elbert, a brother of Brit, and son of Hagar, is about 17 years ,old ; he is a likely fellow of his age. Knows Hagar, a negro woman, thinks she is 45 or 50 years old, is an excellent field hand, for a woman. Knows Nelly, a woman, about thirty years of age, she is quite a small woman, and as a field hand, is not an extraordinary good hand.— Knows Nancy, about 23 years of age, is an able field hand, for a woman.

Witness thinks Joe, in January, 1837, would have hired for #125. Brit would have hired for #100. Elbert would have hired for #100. Hagar ought to hire for #70. Nelly has a child, 6 or 7 years old, thinks her, with the child, would be worth about #40. Nancy .has two children, one of them about 4, and the other about 5 years old, thinks the hire of Nancy with her two children worth about $40.

Cross examination. — Thinks Joe may, be 50 years old. He should not think Andrew a small negro. At times Brit appears stupid, but he goes on with his work as well as common negroes; he has seen brisker negroes. Nelly is something like Brit — not the brightest at work, has sense enough to work as well as common hands. Thinks Nancy as smart as common women, and moves as well as common hands; is a good average hand for a woman.

W. Brooks, Esq. sworn. — From 1823 to 1830, both inclusive, W. Brooks thinks the following would be the fair average hire,: Joe’s hire would average #70 to $75. Hagar, with two children in 1823, would have hired for $30, and the same average price up to January, 1828, and from January, 1828, to January, 1831, about the average of $37 50. Andrew in 1823, was about 10 years old, was worth about $25, 1824 about $30, in 1825 about $35, in 1826 $40, in 1827 about $40, in 1828 abput $45, in 1829 about $55, in 1830 about 60. Brit in 1828 was 8 years old, was worth his food and clothes to January, 1831. Nelly is now about 28 years old, and in 1823 was 13 years old, for 1823 she was worth about $25, in 1824 the same, in 1825 about $35, in 1826 about $40, in 1827 about the same, in 1828 about $45, in 1829 about the same, and in 1830- the same. Nancy in 1823 was about *3608 years old, was worth her food and clothes, 1824 worth from 15 to $20, in 1825 $20, in 1826 worth nothing on account of a broken leg, 1827 about $25, in 1828, $30, in 1829 about $35, and in 1830 about $40.

Allen B. Addison sworn. — Thinks Joe in 1818 and 1819 would be worth about $150, in 1820 about $100, in 1821 and 1822 about $90, in 1831 about $80, in 1832 about $90, in 1833 about the same, in 1834 about $100, 1835 about $100, in 1836 the same, in 1837 about $120'. Hagar in 1818 had three children, and was worth about $25, and in 1819 the same, in 1820 and 1821 and 1822 about $20 each year, from 1831 to 1838 at an average of $60. Andrew in 1821 and 1822 was worth about $10 the first, and $20 the second, in 1831 worth about $80, in 1832 about $100, 1833 about the same, in 1834 about $120, in 1835 about the same, in 1836 about $130, and in 1837 about $140. Brit in 1831 was worth $12, in 1832 about $24, in 1833 about $30,1834 about $35, in 1835 about $40, in 1836 about $50, in 1837 about $60. Nelly for 1831 is worth $45, in 1832 she had a child and was worth about $30, in 1833 and in 1834'about $35, from 1835 to January 1838 an average of $40. Nancy in 1831 and in 1832 was worth about $60, in 1833 about $65, in 1834 she had a child and was worth about $50, in 1835 about $50, in 1836 she had *another*child and was worth, for that year and 1837, about $35.

The following table exhibits a view of the hire of the negroes bequeathed to the complainant, James Rainsford, from the 9th July, 1818, to the 1st January, 1838, being the prices fixed by the evidence of W. Brooks and A. B. Addison, whose testimony was I think, corroborated by other witnesses, and not materially varied by the witnesses of the defendant. 1818 1819 1820 1821 1822 1823 1824 1825 1826 1827 Joe, $70 150 100 90 70 70 70 70 75 75 Hagar, 11 25 20 20 20 30 30 30 30 30 Andrew, — — — 10 20 25 30 35 40 40 Nelly, — — — — — 25 25 35 40 40 Nancy, — — — — — — 15 20 — 25

*3611828 1829 Joe, #75 75 Hagar, 35 35 Andrew, 45 55 Brit, — • — ■ Nelly, 45 45 Nancy, 80 35 Elbert, —■ —■ 1830 1831 1832 1833 1834 1835 1836 1837 75 80 90 90 100 100 100 120 40 60 45 40 60 80 12 45 60 60 100 24 30 60 60 100 30 35 65 12 60 120 35 35 50 24 60 120 40 40 50 30 60 130 50 40 35 35 60 140 60 40 35 40

In like manner the commissioner ascertained the hire of the ne-groes bequeathed to Esther Rainsford, the result of which is as follows:

1818 ’19 ’20 ’21 ’22 ’23 ’24 ’25 ’26 ’27 ’28 ’29 ’30 ’31 ’32 ’33 #274 QJ4 465 505 545 500 529 525 550 570 580 610 606 772 770 790

And he estimated or supposed the expense of Esther as follows :

#100 100 100 100 100 150 150 180 180 180 200 200 200 200 200 200

Making the aggregate amount of the hire of these negroes, #9,529 ; and of the expense of boarding, clothing and education of Esther, #2,540.

The testimony before the commissioner established the fact, that Esther Rainsford had been sent to school three or four years in the neighborhood, and received a common English education, but had not been sent out to a boarding school. She was born in June, 1815.

The commissioner reported that the defendant was not liable to pay the hire of the negroes bequeathed to Esther Rainsford, and reported the amount of hire of the negroes bequeathed to James Rainsford as above stated.

The complainant excepted to the report:

1. The commissioner has placed an underestimate on the value of the hire of Brit and Elbert, for the year 1837: George Harris stated that they were worth #100 each, for 1837: and no witness placed it lower.

The second, third and fourth exceptions, are not now deemed important.

5. The supposed annual expense of Esther Rainsford, as stated in the report, is too high and without testimony to support it.

*3626. The report does not charge interest on the hire of the negroes bequeathed to Esther Rainsford.

*7.*Because the commissioner has undertaken *to*decide that *the*defendant Thomas Rainsford, is not liable to account for the hire of Esther's negroes; a matter not submitted to him by the court.

8. The question is submitted to the court, that the complainants are entitled to hire and interest of the negroes bequeathed to the complainant Esther Rainsford, abating a reasonable allowance for education.

In regard to the 5th exception, the commissioner reports, “ The 5th exception is overruled. The evidence in relation to Esther’s expenses was very indefinite, and I was obliged to resort to general rules in aid of my own judgment in forming the estimate.”

The defendant also filed exceptions, among which are:

2. Because the commissioner has charged the estate of the said Thomas, with the hire of the negroes of the complainant James Rainsford, as fixed by witnesses personally unacquainted with them, and forming their estimates by reference to the sums for which the said negroes might have been hired at public outcry: whereas the commissioner ought to have charged the said estate only with the probable amount actually received by the said Thomas Rainsford, from the labor of the said slaves, (an amount, as stated by various witnesses examined before the commissioner, greatly inferior to the hire charged,) or with a sum to be ascertained by having reference to the average profits of the planters in the neighborhood of the said Thomas.

3. Because in the absence of all regular accounts of the profits of the labor of the said slaves, the commissioner ought at all events to have adopted the rule of allowing not more than £10 for full task hands, and *£5*for half task hands.

At June term, 1838, the case was heard before Chancellor Harper, who pronounced the following decree:

“ On exceptions to the commissioner’s report.

Complainant’s exceptions. — The two first exceptions it is not necessary to consider. I shall dispose of them in determining on the defendant’s third exception. The commissioner’s reasoning on them, however, appears to be satisfactory.

*363It is not necessary to examine the third and fourth exceptions. The deficiency complained of was supplied, in one instance, by the commissioner, in the other by the examination of the witness.

All *the other*exceptions may *be*considered together.-. The purport of the chancellor’s decree, who first heard the casé, certainly was, that Thomas Rainsford should not be charged with hire, unless he should appear to have been guilty of some neglect in failing to give his daughter such an education as general usage and the circumstances in which they were placed would require. This is not modified by the decree of the appeal court, though the chancellor who delivered the opinion of the court, seemed to think that a different view might be taken of the directions of the will. Indeed there was no appeal on the part of the complainant. With respect to the conclusions upon the facts, I shall be governed by the opinion of the commissioner, who was more competent to form an opinion upon them than I can be, and whose reasoning appears to be satisfactory. These exceptions are overruled.

Defendant’s exceptions. — The defendant’s first exception is overruled.

This is no1 a suit for the partition of an estate, in which the complainant and John Rainsford have an interest in common, and to which John Rainsford ought to be a party. , Complainant comes for a specific legacy of slaves, and for an account of their hire.— This hire constituted a personal debt from Thomas Rainsford, and if he were still living, the creditor could not be delayed on a suggestion that if he were permitted to recover, enough of the debtor’s estate would not be left to satisfy another creditor. He who obtains priority by his diligence is entitled to retain it. Thomas Rainsford having died, however, and his estate having come into the hands of his executrix, she is bound under thq executor’s law, to pay all debts of equal degree *pari passu.*But I understand that Thomas Rainsford died since the decree. Though this was not a final decree, such as would take priority of a judgment at law, or final decree obtained against Thos. Rainsford, subsequently to it, yet I apprehend, in analogy to an interlocutory judgment at law, it so fixed the rights of the parties, as to authorize the com*364plainant to carry on the proceedings to a final decree, and thus obtain priority.

There can be no English authority upon the subject, as there the first judgment has preference, whether obtained against the testator or the executor. In England, when there is a bill by one creditor on behalf of himself and others, against an executor, and a decree to account, this is considered a judgment in favor of all creditors. Other creditors will be restrained from proceeding at law, and they will be paid according to their then existing priorities. Mozzise v. Bank of England, Ca. Temp. Talb. 217,225.

But this was not.a .bill by one creditor on behalf of himself and others, but a bill by a creditor against his debtor, and an interlocutory decree against him. The executor was made a party only to carry the former decree into effect.

On another ground, I think the exception must be overruled. There is no present debt due to John Rainsford. I do not understand that John Rainsford has yet arrived in this country, and his doing so, is made a condition precedent to his taking the legacy. An executor is not authorized to retain for a contingent debt; as where there is a statute or bond for the performance of covenants not yet broken, and which perchance may never be broken; or to pay money to an infant upon his coming of age, when he may die before that time. Harrison’s case, 5 Co. 29, 3 Bac. Ab. 81. Tit. Executors and Administrators, Toll. Ex. 276. The executrix will certainly'be protected if she pays in pursuance of the decree of the court.

The second and third exceptions may be disposed of together.

I think this is a case to which the £10 rule, as it is called, properly applies. It is not like the case of one who has obtained possession of property by force or fraud, and who is therefore chargable with all the income which might have been made from it. — ■ He was rightfully in possession as administrator. He was a trustee as administrator, and as having possession of the property, with notice of the trust. His fraud consisted in suppressing information when it was asked of him. It is, I think, enough to say, that he shall take no benefit from his fraud, but shall be charged as if *365he had discharged his trust in honesty and good faith. He is to be charged as an administrator.

Then, I think, it comes within the principle of the case of Lyles v. Lyles, 1 Hill. Ch. Rep. 86, and the other cases on the subject. If an executor or administrator keeps the slaves together, and employs them in making crops for the estate, and gives a fair account of the crops, he shall only be charged with the amount of the crops, although it may very clearly appear that a larger income might have been obtained from renting out the land and hiring the slaves. He is not bound to take that course, and for this there are very good reasons. Hired slaves are commonly treated more harshly, or with less care and attention, than those in possession of their owner. Their health is less attended to ; they are less likely to increase, and their moral qualities are almost always deteriorated. So land in the possession of tenants, is sure to be racked and impoverished, and buildings and fences to fall into dilapidation and decay. Though a larger income might be derived from letting and hiring, it might be that the estate would be greatly injured. Generally, I think, a much larger income might be derived from letting the land and hiring the slaves, than from keeping them together employed in cultivation.

But if the executor has kept the slaves together and failed to make returns for a succession of years, then he is to bé charged, not as if the slaves had been actually hired out and the land rented ; but for such rent and hire as will be a probable equivalent to the average crop for such a succession of years. And the hire of £10 for full hands, and of £5 for half hands, has been found to be fully such equivalent. This I understand to be the principle of the.cases on the subject. If the executor, through gross neglect,, had failed to make crops, or to make sufficient ones, he by parity of reason might be charged by the same rule, though he had returned regular accounts. If the executor had actually hired out the slaves, and failed to account for the hire, then he ought to be charged according to the principle -,of the report; the enquiry should be, what would such slaves have hired for during the several years in question.

Here the slaves were not hired out, for I do not take into ac*366count the casual hiring of a few slaves for a few months. It is true that they were not employed to make crops for the cestui que trust, but I think it comes within the reason of the cases.— They were kept together under the executor’s care, and were regarded by him as his own. The evidence is, that they were treated with great kindness and indulgence. Some of the slaves in his possession increased with great rapidity. Of those bequeathed to the complainant, the whole of the original stock has been preserved and they have increased from five to seven. In charging the executor according to the rule, I am fully satisfied from the evidence that he will be charged with much more, than any profit he ever derived from the slaves. But to that extent, perhaps, he ought to be charged, as it may be attributed to his neglect or mismanagement, that they were not made more profitable.

The third exception is sustained.

This disposes also of the fourth exception.

The fifth has been sustained by the commissioner and the report reformed.

It is ordered, that the report be referred back to the commissioner, to be reformed according to the directions given.”

The complainants appealed, and now moved the court of appeals to, reverse the above decree, on the grounds, that their first, fifth,' sixth, seventh and eighth exceptions to the commissioner’s report, ought to have been sustained by the court. And that the defendant’s third exception, (the £10 rule,) ought to have been overruled.

Curia, per Johnson, Ch.

One of the questions arising out of this appeal, and that which I propose first to notice, is whether the defendant is bound to account for the hire of the slaves bequeathed by the testator to his grand-daughter Esther, the complainant.

On the first trial on the circuit, before myself, this question was not seriously pressed on the part of the complainants; but on a re-examination of it upon the argument here, I am still satisfied with the conclusion at which I arrived on the hasty consideration which I then gave it.

*367In the first clause of the will, the testator gives to Esther, 11 negroes, by name, absolutely and unconditionally, and in a subsequent clause, he makes a similar provision for his grand-daughter Mary, both then infant children of his son, the defendant. The following is found in the 8th clause of the will, to wit: “And I do hereby appoint my son Thomas,” (the defendant,) “ guardian of the said Esther and Mary, and direct that he shall have the use of the property herein devised to them, until they come of age or marry, for their maintenance and education.”

The language of these provisions of the will, when taken together, are too plain to admit of any doubt about their interpretation. Clearly, the testator intended that the defendant should have the use and possession of the negroes, until his daughters arrived at the age of 21, or married. That he was to maintain and educate them, and upon the happening of one or the other of these contingencies, the negroes were to be delivered over to them.

The question then is, what did the testator intend by giving to the defendant the use of the negroes until the legatees came of age or married *1*Was it that he should have the use as an equivalent for their maintenance and education, or did he intend that the defendant should be held to a strict account for hire *1*

There is no question, that generally, the usufruct, will follow the corpus of the legacy. But it is equally true that the testator had the right to confer on one, a vested interest in the property bequeathed, and on another, the use for a limited period, or until the happening of some contingency; and when he directs that Thomas “ shall have the use of the property,” his will is as clearly expressed, and of equal validity with the direct bequest of the corpus to Esther. Thomas is to have the use, and must provide for the education and maintenance of his daughters. This is the plain common sense interpretation of the language of the will.

In the absence of any positive rule, we are at liberty to look through all the attending circumstances — the relations between the parties — all the provisions of the will, and the nature and condition of the estáte, to enable us to arrive at the intention of the testator; and if we recur to the history of this case, it will be found *368that there are abundant reasons why the testator ought not to have charged the defendant with an account for the use beyond the objects expressed in the will; and in a question of doubtful construction, these must have their influence. The clause in question, in itself, I think sufficiently indicates an intention that he should not be charged with .hire. The testator appoints the defendant guardian of the legatees, which of itself would entitle him to the possession and charge him with an accountability for the income of the estate, and he must have intended something beyond this, when he gives him the use: and for what else but that the use should be an indemnity for the education and maintenance provided for in the will. I do not mean to say that the testator could confer on the defendant any power over the persons of his daughters; but he clearly had the right to confer on him power over the property which he bequeathed to them.

The case of Brown and Cassamajor, 4 Ves. 498, has been referred to, and bears, I think, strongly on the question. There the testator bequeathed to H. S. £7000, the better to enable him to provide for his younger children, and it was held that although the children were entitled to the principal sum, H. S. was not bound to account for interest. Here the testator gives to the defendant the use of the property, for the education and maintenance of his grand-daughters, and on the same principle, he ought not to be held to a rigid account, if he has performed the obligation imposed on him.

The case of Pope v. Wilmot, Amb. 704, has been referred to as opposed to this conclusion. There the testator devised his estate to trustees, and directed that they should raise, out of certain portions of it, any sum that they should think fit, not exceeding £3000, for the advancement of his son. They purchased a commission in the army for him, which, together with his equipments, cost £1093 7s. 6d., and on a. bill filed for an account of this legacy, it was held that the son was entitled to the residue of the legacy of £3000. The Master of the Rolls being of opinion that this was' a legacy to the son, and it will be remarked, that there was not, as in this case, any direct bequest to the trustees.

The only remaining question is, whether the defendant is charg*369able with the hire of the negroes, bequeathed to James Rainsford, according to what is called the £10 rule, or at the rate at which they would hire, or at any and what other rate.

Since the case of Lyles v. Lyles, 1 Hill. Ch. 87, this question has been several times before the court, under various forms; but the cases have not been reported, and I have not been able to lay my *hands on*them. My recollection of them, however, is so distinct, that I can hardly be mistaken in supposing that the £10 rule, as an arbitrary rule of value, and indeed every other has been again and again wholly repudiated, and I do not recollect that it has been so applied in any case since that of Strowman v. Rottenburg, 4 Eq, Rep. 270, but the case of Myers v. Myers. The former appears to have been made upon a calculation of the value of negro hire, and in the absence of all proof as to the real value. In the latter, the rule was adopted on account of the impracticability of obtaining satisfactory evidence through a long series of years, embracing a period during which the price of produce varied from the extremes of the lowest and the highest, and could hardly furnish a rule for any other case.

The obligation imposed on a trustee, is -that he shall manage the trust estate in the same manner that a-discreet man would manage his own concerns; and he is accountable if he neglects to perform this duty. He is not permitted to take any profit to himself, and having discharged- his duty faithfully, he is accountable for no more than is actually made. If he be wanting in the performance, he must account for what he ought to have made,, and it will be seen at once, that no arbitrary rule can ascertain the extent of his liability, and no case can furnish a rule for another.— There is no possible way of ascertaining it, by any other means than those that arise from the particular circumstances of each case.

Cases have arisen, and it may well be supposed that others may arise, where precise evidence of the value of the hire of slaves, could not be ascertained by direct evidence, and in those cases, I still think, that a general average founded on a calculation made on the principles pointed out in the note to Lyles v. Lyles, may be relied on as furnishing a rule; but whenever evidence of particu*370lar value can be obtained, that mode of ascertaining it cannot be resorted to; for the capacity of slaves for labour, the soil on which they are employed, the pursuit in which they are engaged, and the price of produce or other commodities, necessarily enter into the estimate of probable profits.

Regular accounts of receipts and disbursements, would generally supercede the necessity of any other proof, and all these questions arise out of the neglect or omission on the part of the trustee to keep them, and hence the necessity of resorting to other modes of proof. Of course any fact or circumstance, calculated to show the real value, is admissible. The price at which they would hire publicly, is one means of ascertaining it. But for the reasons I have stated in Lyles v. Lyles, this is not always to be relied on as evidence of the reasonable value — most frequently it exceeds it, and in some instances falls below it, as in a case tried by me sometime ago in Georgetown, where getting lumber for market was the principal employment, full grown, able bodied females were hired publicly at from 10 to f 15, annually, inhere negroes are employed on a plantation, an estimate based on the principles indicated in the note to Lyles v. Lyles, made by experienced planters, with reference to the condition of 'the negroes, and the quality of the land, on which they were employed, is another means of ascertaining the value, and strikes me as the most likely to attain the truth; and'whether this, or any other mode of ascertaining the value is resorted to, the attention bestowed by the trustee to the wants of the negroes, and to the health and comfort of the young negroes, ought to enter largely into the estimate. It is the difference in value between a gang of negroes, who have not increased and are reduced to premature old age by excessive labor, and one which has rapidly increased in healthfulness and numbers; but after all, it is a question about which *it is*impossible to prescribe any fixed rule — all these elements, and perhaps many others, enter into the estimate of value, and the deduction must be the result of reasoning from them, directed by sound discretion.

The evidence on which the commissioners report is founded, is, I think, exceptionable. The value of negro hire was ascertained by the examination of witnesses, who appear not to have had any *371knowledge of them, or the lands on which they were worked, and formed their opinions of the value on the description of others. It is scarcely possible, that better evidence could not have been obtained, and it ought to have been required. The defendant could not have lived so entirely secluded, as not to have had some *neighbor*who knew the property and was competent to form some estimate as to the value of hire.

*Bausket,*for complainants.

*Wardlaw, Wardlaw*& *Carroll,*for defendant.

It is therefore ordered and decreed, that so much of the decree of the circuit court, as is opposed to the principles of this opinion, be reversed — and that it be referred to the commissioner to ascertain and report the value of the hire of the negroes bequeathed to complainant James Rainsford, according to the principles of this decree.

Dunkin, Ch. I concur.

Johnston, Ch.

I concur in so much of the opinion expressed by my brother Johnson, as abrogates what has been called the £10 rule, (a rule which never had an existence,) and leaves the hire of the slaves to be ascertained by all competent testimony.

I still retain the opinion expressed on a former occasion, that Thomas Rainsford takes no beneficial interest under the 8th clause of his father’s will. The slaves were expressly bequeathed to Esther, and the subsequent clause should not be construed in derogation of her legacy, unless there be clear expressions to diminish her interest. The subsequent clause, in my opinion, merely operates to authorise Thomas to use the slaves for the education and maintenance of his daughter.