#### Wade J. Markley and Wife *vs.*Daniel M. Singletary.

*Limitation of Estates*— Separate *Estate*— Parties—Infant.

A father gave, by deed, a negro girl, to his daughter C., “for her support, during her natural life, and at her, the said C.’s death, the said negro girl, together with her future issue and increase, shall be the property of the issue of the said *G.*— Held, that C. took an estate for life, with a valid limitation to her issue as purchasers.

A gift to a married daughter “ for her support during her natural life” creates a separate estate in the *daughter*— Semble.

A bill for distribution of the estate of an infant who died when eleven years old, and who has been dead near twenty years, may proceed without making an administrator of the infant a party.

BEFORE INGLIS, CH., AT CHARLESTON, FEBRUARY, I860.

The decree of the Circuit Court is as follows:

Inglis, Ch. Elisha Meilard, late of the parish of St. James, Goose Creek, on. 20th day of February, A. D. 1830, made and duly delivered his deed of gift of that date, the disposing part of which is in the following words, to wit: “For certain causes, I do give unto Celia Ann Singletary, a certain negro girl, Sue, together with her future issue and increase, for her support during her natural life, and at her, the said Celia Ann Singletary’s death, the said negro girl Sue, together with her issue and increase, shall be the property of the issue of the said Celia Ann Singletary.” The immediate donee, Celia Ann Singletary, was the grand-daughter of the donor, Elisha Meilard, and at the date of the gift, was the wife of the defendant, Daniel M. Siugletary, and had issue, one child, Elisha Meilard Singletary, then about nine months old. The girl Sue went into the possession of the defendant, and if not recently removed by him, out of the jurisdiction, is still in his possession, as is also her son, Toney, the only issue born to her since the gift. Celia .Ann Singletary died in July, *394A. D. 183-5. leaving surviving her, her said husband and two children, Elisha Mellard Singletary, above-named, then six years old, and the plaintiff, Celia Ann, tlten about a year old — the former -of these two children, daed- (intestate of course) in June, A. D. 1840, at the early age of eleven years, leaving his father and sister as the only distributees of any estate he was possessed of or entitled to. There has been no grant of administration on the personal estate of the mother, Celia Ann, nor on that of the son, Elisha Mellard. The plaintiffs, Wade J. Markley and Celia Ann Singletary, the younger, the other child of the donee surviving at her death, intermarried in May, A. D. 1855. In their present bill they claim to be entitled, in the right of the wife, to au undivided share in the slaves Sue and Toney, and in their hire, and pray an account from the defendant of the hire and a partition of slaves and hire, conceding to the'defendant the right to a share. The defendant, under the form of a demurrer, denies wholly the title thus set up by the plaintiffs to Sue and 'her increase, or any share therein, and insists that the effect of the deed of Elisha Mellard was to convey an absolute legal estate in the girl Sue, to the donee, which instantly became vested in the defendant, by virtue of his marital rights. The issue thus made requires for its determination the construction of the deed of gift.

A gift of personalty, in terms which, if the subject were realty, would create an estate in fee conditional, Carries to the donee the absolute ownership of the personalty.

- Where an estate of freehold in realty is limited to one, and in the same instrument there is contained a limitation in remainder, whether immediately or mediately, to the heirs of his body, as such, the first taker has thereby an estate in fee conditional. This is a rule of property founded in principles of feudal policy, absolute and invariable in its application to all cases falling within its terms, not only wholly independ-ant of the intention of the maker of the instrument, but by its very terms in positive contravention of that intention. In *395*devises*the same result will follow even where the forbidden purpose expresses itself by the use of other than the strictly technical words, “ heirs of the body.” The single inquiry in all cases is this : did the party using the words have in his contemplation and purpose, and therefore indicate by the words used, all those indefinite successions proceeding from the body of the first taker, whensoever existing, to whom the terms apply, “ the whole line of inheritable succession,” “all the issue of every generation to come?” Or did he thereby only designate a particular individual or class of individuals, as, for example, all in a certain degree of relationship to the first taker, or all in existence at a particular period ? “Heirs of the body,” and (in a devise) issue without more, import, *ex vi*termini, the former objects of contemplation, that is, the indefinite succession of persons embraced within the terms. I say “ without more,” because this *prima facie*meaning of the terms may be controlled by an explanatory context. But the context must be explanatory, the purpose — to use the words in a misapplied sense, (Hayes’ Lim., 17,) as designating particular individuals or classes, must be evidenced “so clearly that no one can misunderstand it,” or, as is elsewhere said, “ by distinct and unequivocal demonstration.” (Hayes’-Lim., 15.) When we come to inquire of the adjudged cases, what it is which constitutes this distinct and unequivocal demonstration, of an intention to use the words in a restricted sense, such as shall place the particular case out of the terms of the rule of policy, the parallel between realty and personalty soon terminates, and we find the lines in which the cases of the one and the other sort of properly are ranged, begin presently to diverge. That which will demonstrate the intention to designate by the words, “heirs of the body,” issue not the indefinite succession, but particular individuals or classes, as the objects of donation especially present to the donor’s contemplation, when the subject of donation is personalty, is often wholly ineffectual for the same purpose when it is realty. Thus, a limitation over of the subject of gift upon the *396failure of “ heirs of the body,” &e., of the first taker, in terms which clearly evince that the ultimate estate so limited is to take effect, if at all, not upon an indefinite failure of heirs of the body, &c., whensoever occurring, but at the death of the tenant of the first freehold, is held to demonstrate certainly when the subject is personalty; and as to some of such terms, when it is realty,a purpose to indicate by the words “ heirs of the body,” “issue,” &c., the particular individuals or class of persons, who, at that point of time, are in existence, and to whom (as part of the whole) *(McCorkle vs. Black,*7 Rich. Eq., 407,) the words may be applicable. A limitation over to “survivors” of the first taker has this effect, whether the subject of gift be realty or personalty. *(Henry vs. Archer,*Bail., 535 ; *McLure vs. Young, 3*Rich. Eq., 559.) A limitation over upon the event of the first taker “leaving” no heirs of 'his body, issue, &c., has the same effect as to personalty. *(Hull vs. Hull, 2*Strob. Eq, 175 ; *Chaplin vs. Turner, 2*Rich. Eq., 136.) So, too, words of distribution, as “ share and share alike,” &c., or words of limitation, as “to the heirs of the body of A, and their heirs and assigns forever,” superadded in the terms of direct gift to the words “ heirs of the body,” *“*issue,” &c., as to personalty, but not as to realty, are equally held to demonstrate such intention. And, as coming within the reason of the last rule of exception, a gift to “A for life, and after his death to be the absolute property of the heirs of his body forever,” have been adjudged to constitute such a demonstration. Cases, such as these now alluded to, where there is considered to be the necessary “ distinct and unequivocal demonstration” of a purpose, to use the otherwise technical words, “heirs of the body,” “issue,” &c., as only designating particular individuals or classes, are not exceptions to, or relaxations of the rule of policy above stated. (Hayes’ Lira., 13; *2*Jarman, 240.) They do not come within its terms; there is not a limitation in remainder to the heirs of the body, *as such,*and, therefore, they are outside of the application. The persons designated by the words, *397“heirs of the body,” “issue,” &c., take not by succession to, or descent from the ancestor, or first taker, but. directly from the donor, and are therefore said to take' as “purchasers.” There is one other general remark proper to be made. In the terms of the rule of policy, as stated in the early part of this judgment, it will be observed, the limitation to the heirs of the body of the first taker, is said to be a limitation, “ in remainder.” (Hayes’ Lina., 4-51 ; 2 Jarman, Wills, 244.) This word “ remainder,” necessarily supposes that the two *“*limitations are of the same quality,” both legal or both equitable estates. When, therefore, the freehold, limited to the ancestor, is “equitable, and the remainder to his heirs special, is legal, or *vice versa,”*the rule is silent.

The rule of policy to which allusion has been made — the rule in Shelley’s case — has, it is true, no direct application to estates in personalty, but when it is said that terms which create an estate in fee conditional in realty carry the absolute ownership of personalty, it becomes necessary to in'quire what terms do create an estate in fee conditional in realty; and when to this inquiry it is, among other things, answered, that an estate for life to one, followed in the same instrument by an estate in remainder to the heirs of his body, &c., becomes an estate in fee conditional in the first taker, it seems to result that instruments creating estates iu personalty cannot escape wholly from the operation of the rule; it becomes, therefore, important in cases like the present, to inquire into the extent of its application, and how far, if at all, that application is modified, when the subject of gilt is personalty, by the flexibility of the principles of interpretation.

I proceed to apply the general principles which have been stated to the determination of the issue made between the parties now before the Court — What estate did Celia Ann Singletary, the immediate donee, take in the negro Sue, under the deed of Elisha Mellard ? What estate did her issue take ?

It must be observed that the instrument which created *398these estates is a *deed,*and the term used to describe those to whom the remainder is limited is “issue.” The word “issue,” in a deed, is *designatio personse,*always a word of *purchase.*An estate in fee conditional, (Hayes’ Lim., 15, 52,) could not be created by deed by the use of this word, even when clearly designed as a word of limitation as “ to A and his issue.” Again, in *Meyers vs. dlnderson,*(l Strob. Eq., 344,) already adverted to, it was held that when the gift was “to A for life, and after her death to be. the absolute property of the issue of her body forever,” the issue of A took as purchasers. The reason assigned was, that the words showed an intent to constitute the “issue” a new stock of inheritance or succession; but where personal property is the subject of gift, the words “ to be the property of” are fully as effective as those other words, “ to be the absolute property forever.” (Williams on Personal Property, 205.) “ A gift of personal property to A simply without more, is sufficient to vest in him the absolute interest.” How can the addition of the superfluous words “ absolute ” and “ forever,” any more strongly import a purpose to make the “ issue” a new stock of inheritance or succession ? Perhaps, too, the peculiarly definite form of expression “at her death” ought not to pass unobserved, in an effort to ascertain whether there is in this instrument the required demonstration of an intention to use the word “ issue,” as a *designatio personarum.*

In order to ascertain the *quantity*of estate which Celia Ann Singletary took under this deed, it is pertinent to inquire into its quality. Is it legal or equitable ? The gift is to her “for her support during her natural life.” Do these words create an estate for the separate use of Celia Ann Singletary?

No particular technical form of words is necessary to create a trust for the separate use of a married woman, (l Lead., Cas. Eq., 539 ;) but as such separate use is in derogation of the common law rights of the husband, it can be recognized only where the intent to create it is “ clear and unequivocal.” The cases on the subject cannot be easily, if at all, reconciled *399An arrangement into three classes, of the modes in which a separate estate in a wife can be created, has been made by an eminent Chancellor of this State, *(Nix vs. Bradley,*6 Rich. Eq., 48,) thus: — 1st. Where the technical words “sole and separate use,” or others equivalent are used; 2d. Where the marital rights are expressly excluded ; and, 3d. Where the wife is empowered to perform acts concerning the estate given to her, inconsistent with the legal disabilities of cover-ture. But the same able jurist, in a subsequent case, *{Ellis vs. Woods,*9 Rich. Eq., 19,) says: — “The only safe and rational rule that can be laid down, as applicable to cases of this kind, is one the enforcement of which must depend on the discreet judgment of the Court. If it appear to the satisfaction of the Court, upon a fair construction of the whole instrument, without wresting the meaning either to sustain the marital rights, or the separate rights of the wife, that there is a manifest intent to create a separate estate, such intent should be effectuated, though no express words of that import should be employed.” Each case, therefore, as it occurs, must be decided upon its own circumstances.

In *Wylie vs. White,*(10 Rich. Eq., 294,) the testator gave to his son William, “ during his natural life, the use and benefit of the following negroes, &c.; the said negroes not to be removed from the State, or be disposed of by him, or any other person whatsoever, but to remain exclusively for the annual support of my said son and family.” It was held that these words created a trust, which extended to the wife and children of the legatee, William, and prevented the property from being dealt with by the creditors of William, as his legal property, and the creditors were perpetually enjoined from selling the property under their executions at law. It is true, that in .the argument of the Court, some stress is laid upon the prohibition of removal or disposition, and upon the use of the word “annual.” But the course of reasoning, and especially the authorities cited in support of the judgment, show that the effective words were, “ for the *400support of my said son and family.” In the case before the Court, the gift is to a woman, at the time married, and is declared to be “ for her support.” These words do not seem merely to express diffusely what is implied in the gift itself, but rather a devotion of the gift to a special purpose, and by analogy to the case of *Wylie vs. White,*they import a trust *for*the support of the *feme covert,*which can be effectuated only by regarding it as a separate estate. So in *Darley vs. Dcirley,*(3 Atkins, 399,) a gift to a husband “for the livelihood” of the wife, was held to constitute an estate to her sole and separate use. And of what quality is a separate estate in a married woman ? It is surely equitable. Such an estate is unknown to the common law. (Adams’ Eq., 243; 2 Story’s Eq. Jur., sec. 13, 7S, S2 ; 1 Lead. Cas. Eq., 541 ; *Ellis vs. Wood,*9 Rich. Eq., 19.) It is the creature exclusively of equity. The instant it ceases to be an equitable and becomes a legal estate, it perishes. “The intervention of a trustee is not necessary to the validity of an estate to the separate use of a married woman. If real or personal property be given to her separate use, her interests will be protected by converting the husband into a trustee.” “When the intention appears that the property bequeathed to or settled on the wife, shall be to her sole and separate use, whether it is so given immediately without the intervention of trustees, or to the husband for her, a Court of Equity will effectuate the intention, by converting the husband into a trustee ‘for the wife.”’ If the words here used in the circumstances of this case, constitute a trust for the separate use of Celia Ann Singletary, (and such, in the judgment of the Court, is their effect,) her husband, the present defendant, will be regarded as having taken the legal estate as trustee for her during her natural life. But, “ at her death,” the trust ceases,- and then the slave Sue and her increase are “to be the property of the issue of the said Celia Ann Singletary.” These latter words carry directly to the issue a clear, legal estate. And the life estate in the mother being equitable, and the *401remainder in her issue being legal, the rule in Shelley’s ease does not apply. *(Austin vs. Payne,*S Rich. Eq., 1 ; but see, as to real estate, *Douglas vs. Congreve,*l Beav., 59.) The-issue of Celia Ann Singletary, take, as *purchasers.*

Although not, perhaps, strictly necessary to the conclusion attained, it has been thought the fairer course toward the parties to consider and determine all the questions made in argument at the bar.

It is the judgment of this Court, that under the deed of Elisha Mellard, the immediate donee, Celia Ann Singleta^r, took an estate for the term of her own life only, and that the issue of the said Celia Ann Singletary took, as *purchasers,*an-estate in remainder after the determination of this her life-estate. This disposes of the first ground of demurrer, which denies any right whatever in the plaintiffs, to the negroes Sue and Toney, or to any share in the same. It is not necessary, at this stage of the cause, to determine what persons are entitled to the estate in remainder, under the designation of “issue,” whether all the issue of Celia Ann Singletary, living at her death, or only such as was alive at the date of the deed-In either of these cases, Elisha Mellard Singletary was entitled at the death of his mother to take. In the one case, he would take one-half of the property, in. the other, the whole-of it. And this renders necessary the determination of the-question made by the defendant’s second ground of demurrer.. Is it absolutely indispensable that a personal representative of Elisha Mellard Singletary, should be a party to these proceedings? If so, the plaintiffs cannot go on in the presentí condition of the pleadings.

It has been suggested on the part of the plaintiffs, that-by our. legislation, making real property subject to the claims of the owner’s creditors equally with personalty, and directing a common distribution of the real and personal property of intestates, the distinction between the two classes of property, which, at the common law, was so deeply drawn, has been virtually abolished. And, therefore, that as in realty the legpl *402title is cast by descent upon the heirs,subject only to a charge for debts, so the distributees of the intestate should be considered as directly succeeding to his legal title in the personalty subject to a like charge. This view of the matter is not destitute of plausibility, but this Court has so often decided that the common law distinction is not wholly abolished, but for many purposes remains in all its force, and that the legal title to the personalty is in the executor or administrator, as the case may be, that such a suggestion cannot be entertained. It is, however, certain, that all the persons really interested in the subject matter of this suit, are parties to it, and now before the Court. Whatever interest Elisha Mellard Singletary took under the deed of his great-grand-father, Elisha Mellard, passed at his death to his father, the present defendant, and his sister, the plaintiff, Celia Ann, in equal shares. It is true that, according to the strict letter of the law, this interest could reach them only through the conduit of a personal repiesen-tative, but a personal representative intercepts the succession only that the rights of creditors may be protected and provided for. It is not possible that Elisha Mellard Singletary could have owed any debts at his death. He lived to be only eleven years old, and his father, the present defendant, was bound in law to maintain him. *(Edwards vs. Huggins,*2 McCord, Ch. 16.) Under such circumstances, this child could not contract debts, nor be responsible in property for debts contracted for his benefit by others. To attribute debts to him is the merest fiction. He has been dead ■almost twenty years, and during all this interval the defend-ant has had his property in possession, and has received the income thereof; creditors of the child, if such there could be, might at any time during this long period have treated him ■as executor in his own wrong, and certainly would have done •so. Must these proceedings be delayed, and new expense incurred, for the purpose of making a merely formal party? And for what end ? in order that such party, when made, may ;go through the empty show of receiving the share of Elisha *403Mellard Singletary, and in the same instant distributing that share between the very parties now before the Court, between whom it could as well be at once distributed ? It will not be insisted that such personal representative shall give the usual public notice to creditors, and that these proceedings shall be stayed until twelve months from the graut of administration shall have expired. (A. A., 1789, sect. 27, 5 St., 111.) Yet, if the protection of creditors is the object to be secured by an administration, that would seem to follow.

Cases can certainly be found in our own books, in which it is said that where an infant, *(_Read vs. Read,*8 Rich., 145; *Petigru vs. Ferguson,*6 Rich. Eq., 378; *Walker vs. May,*Bail. Eq„ 60; *Marsh vs. Neil,*Rich. Eq. Cas., 115; *Spann vs. Jennings,*1 Hill, Ch., 324; *Huson vs. Wallace,*1 Rich. Eq., 1,) who has been interested in the subject matter of the suit, has died, and his interest has, therefore, passed by descent to others, it is *better*that a personal representative of such infant shall be a party; but no case has been cited in which such a course has been made imperative under all circumstances, or affirmed as an invariable rule of practice, nor has auy case been adduced in which, under circumstances like the present, such a course has been required. I am of opinion that it is not *indispensable*that a personal representative of Elisha Mellard Singletary should be a party to this suit, but that the cause *may*proceed without it.

The demurrer is overruled.

The defendant appealed on the grounds:

1. That the plaintiff had no title in the premises, the whole estate being vested in the defendant by the terms of the limitation in the deed of gift.

2. That there was not a separate estate in Mrs. Singletary.,

3. That the personal representative of the estate of the. deceased, Elisha Mellard Singletary, was not a party to this suit, admitting that there was a gift to the issue.

*Simons,*for appellant.

*Duryea,*contra.

*404*Per Curiam.*

This Court concurs in the decree of Chancellor Inglis.

The motion is, therefore, dismissed.

O’Neall, C. J., and Johnstone and Wardlaw, JJ., concurring.

*Appeal dismissed.*