#### George W. Folk, et al., *vs.*Littleberry Varn, et al.

An instrument in form a deed, but using the word “ bequeath” in addition to “ give, -'grant, deed, bargain, and sell,” by -which the donor conveyed certain slaves to his son, J. H., to have and to hold them absolutely, with a proviso, (I) that the donor should “ keep and enjoy the use” for life, and (2) that if J. H. *“*die without leaving issue, or in minority, then one half to go to the lawful issue of .A. Y., and L. Y., the other half to the children of my brothers,” *held,*to be a deed and not a will. The limitation to the lawful issue of A. V., and L. Y., and to the children of brothers, *held,*good — the issue and children living at the death of J. H., being the parties entitled.

J. H., was a minor living with his father when the deed was executed, and it was recorded two days afterwards in the Register’s office *:*— Held, that this was sufficient proof of delivery.

"Where the first taker’s estate is defeasible upon an event upon the happening of which the estate is to go over to others, a delivery of the r deed to the first taker is sufficient for all who take interest under it. Where the deed declares that in a certain event the property shpll “ go to” others, this is a sufficient conveyance to them upon the happening of the event.

BEFORE WARDLAW, OH., AT COLLETON, FEBRUARY, 1856.

The circuit decree, from ’which this case will he sufficiently understood, is as follows:

"Wardlaw, Oh. This is a bill for partition and settlement of the estate of John Snider, late of St. Bartholomew’s parish. He died intestate March 14, 1855, seized and possessed of real and personal estate, and leaving as his distributees, brothers, sisters, nephews and nieces. Greorge W. Eolk has been appointed administrator of his chattels and credits. On May 10, 1847, the said John Snider signed and sealed a written instrument, attested by Henry Ulmer, scrivener of the instrument, in the following words:

*304*“*South Carolina, Colleton District. Know all men "by these presents, that I, John Snider, of the district and State aforesaid, for, and in consideration of one dollar, to me in hand paid, the receipt whereof I do hereby acknowledge, have given, granted, deeded, bargained, and sold, and by these presents, do give, grant, bargain, sell and bequeath, unto my son, John Hext Snider, of the district and State aforesaid, the following named negro slaves, to wit; Sally, Jim, Bill, Lucy, Solomon, Lewis, Harriet, Doll, Patrick, Chaney and Charles, together with all their future increase; to have and to hold all and singular, the said negro slaves, with all their future increase, unto the said John H. Snider, only with this proviso, that I 'keep and enjoy the use of said property unto myself, so long as I live, and after my decease, then to the said John H. Snider, his heirs and assigns forever. Provided, nevertheless, if the said John H. Snider die without leaving lawful issue, or in minority, then one-half of the above property to go to the lawful issue of Mrs. Ann Yarn and Mrs. Laura Yarn, the other half to the children of my brothers. In witness whereof, I do hereunto set my hand and seal, this tenth day of May, in the year of our Lord, one thousand eight hundred and forty-seven.

“John SnideR. [l. s.]

“ Signed and sealed in the presence of

Henry Ulmer.”

On May 11, 1847, Henry Ulmer deposed before Eugene McTeer, then a magistrate for Colleton, that “ he saw John ^Snider sign and seal the within deed, for all the purposes therein set forthand on May 12, 1847, the instrument was recorded in the office of Register of Mesne Conveyances, of Colleton district. On the copy from that office, is endorsed, “ delivered to Snider, Esqr., March 3, 1848,” and the original is now produced from the papers of John Snider, in the custody of the defendants Yarn. Ulmer is dead. John Hext *305Snider, the donee, in life was an inmate of Ms father’s family, and died in his minority, and without leaving lawful issue, and before January 17, 1851. At the date last mentioned, the said John Snider, by deed, nominally in consideration of one hundred dollars gave to his two stepdaughters, Ann and Laura, wives of Littleberry and James Gr. Yarn, after reserving a life estate to himself, the same negroes named in the former instrument, except that Patrick, probably dead, is omitted, and that Frank, another child of Sally, is mentioned. This gift is, upon certain limitations and restrictions, not important in the consideration of this case.

The principal question submitted for judgment, is whether the instrument of May 10, 1847, is - a deed or inchoate testa-tament? Since the case of *Jaggers*vs. *JEstes,*2 Strob. Eq. 343, subordinate judges in South Carolina cannot dispute, that by deed duly delivered, one may give the remainder of a chattel to another, after reserving a life estate for himself, if upon construction of the whole instrument, it be manifest he intended to do an irrevocable act, and pass present title to the donee, postponing the enjoyment only. A provision for enjoyment by the donee after the death of the donor, although testamentary in its bearing, is not conclusive that the instrument of gift is not a deed. In the present case, the instrument in question has throughout the form of a deed: beginning “ know all men by these presents,” reciting a valuable’ consideration as paid, containing the technical words of grant “give, grant, deed, bargain and sell,”-having the clause, “ to have and to hold,” concluding with the usual clause as to signing and sealing, actually signed and sealed, and attested in the usual form as to signing and sealing by a witness, anj then registered. These circumstances seem to me to settle the character of the instrument as a, deed. *Alexander*vs. *Burnett,*5 Rich. 190. Nothing in the paper itself contravenes its character as a deed, except that it employs the word “bequeath,” and lacks internal evidence of delivery, and these seem to be *306insufficient. Bequeath, is certainly a word appropriate to a testament only, but it is not so inaptly used in a deed, where the donor reserves the enjoyment of the estate for his life, as to control the words grant, bargain and sell, proper only in a deed. So, too, the instrument does not profess to be delivered is a fact of some weight, but readily overcome by proof, actual or presumptive, that the instrument was in fact delivered. *Wheeler*vs. *Durant,*3 Rich. Eq. 452; *Harrison*vs. *Babb, M. S. Ool.*Dec. 1856.(a)

■ I am satisfied by the evidence, that this deed was delivered. Hot that it was. put into the hands of the child who was the donee, for that would have been a farcical formality, but that it was delivered to the witness for probate, and to the register for recording; (which probate and recording occurred within two days after the signing and sealing,) and was after-wards retaken from the register by the donor, as the natural guardian of his child, and kept among his papers. *Ingraham*vs. *Porter,*4 McO. 198 ; *Dawson*vs. *Dawson,*Rice, Eq. 244.

It is argued that this deed is void on account of the uncertainty of the description of those who were to take contingently, upon the death of John Hext Snider, infant without leaving issue; namely the lawful issue of the Mistresses Yarn as to one-half of the estate, and the children of John Snider’s brothers as to the other half. The principal donee, John H. Snider, took a vested and absolute remainder, to be enjoyed on the death of his father, and defeasible if he died in infancy without leaving issue ; this event, certainly not liable to the vice of remoteness, actually occurred, and *eo instanti,*the estate vested in title, although still postponed in enjoyment, in moieties in such of the issue of the Mistresses Yarn and children of th¿ brothers of the donor, as were living at the death of John H. Snider. I,perceive no uncertainty in the description of the ultimate donees. The issue of Ann Yarn *307and Laura Yarn, in whatever degree, take among them *per*capita, one-half of the estate, excluding predeceased and after horn issue, except as possibly the after bom might be among the distributees of issue living at the death of John PL and dying afterwards. And the children of brothers of donor takeyier *capita*the other half, excluding grandchildren and remoter descendants of brothers, and even children of sisters, except as they might be distributees of a brother’s child who died after the vesting of the estate. *Perdriau*vs. Wells, 5 Rich. Eq. 20; *Barksdale*vs. Macbeth, 7 Rich. Eq. 125; *Corbett*vs. Laurens, 5 Rich. Eq. 801; *Siebles*vs. Whately, 2 Hill Ch. 605; *Buff*vs. Rutherford, Bail. Eq. 7.

It was further suggested that there were no words of conveyance to the contingent remaindermen. It is a foregone conclusion, that a deed may serve as a testament to limit an estate in remainder in a chattel after a life estate therein, and when this point has been attained, it is too late to stickle about terms of conveyance. I suppose the words “ to go,” to be sufficiently explicit to express the donor’s intention to transfer the estate according to the limitation over. In my judgment, the instrument of May 10, 1847, is a valid deed of gift, and renders inoperative the deed of January 17, 1851, purporting to convey the same property.

Another point submitted for determination, relates to the hire of the slaves named in the former deed, for the year 1855.

The life tenant, John Snider, died after the first of March of that year, but the slaves Yere not employed by him in making a crop on lands in his occupation, and in fact were hired out; so that the case does not come within the provision of the Act of 1789, 4 Stat. Ill, making the crop and emble-ments, under certain circumstances, assets in the hands of the representatives of the life tenant, and does come within another provision of the same Act, that the hirer from the life tenant shall secure the payment of the hire when due, meaning to the remaindermen. *Clifford*vs. *Bead,*3 Rich. Eq. 218. *308In the present ease, one-half of the hire of the negroes belongs to the issue of Ann Yarn, and of Laura Yarn, living at the death of John H. Snider, and the other half to the children of the brothers of John Snider, who were living at the death of said John H. .

Fo dispute is made as to the right of the distributees of John Snider to partition of the land and slaves of which he died seized and possessed; and it is ordered that the parties have leave to issue a writ of partition under the supervision of the Commissioner.

*It is further*ordered, That the Commissioner inquire and report who were the issue of Ann Yarn and Laura Yarn, and the children of John Snider’s brothers, at the date of John H. Snider’s death.

*And it is ordered and*decreed, that the Commissioner take and state the accounts between the parties, on the principles of this opinion.

The defendants, the Yarns, appealed on the grounds:

1. That the instrument of May 10,1847, is not in form, and was not in intent, irrevocable.

2. That if a deed, yet a donor cannot by deed, without the intervention of a trustee, create a *contingent*remainder in a chattel after a life estate reserved therein to himself; and the limitation “to the lawful issue of Mrs. Ann Yarn, and of Mrs. Laura Yarn,” and to the children of donor’s brother, is a contingent remainder.

8. That if a *contingent*remainder can be so created, it must be by due words of conveyance, and that “ to go” are not such.

Tracy, for appellants.

(a)

 Anto 111.

The opinion of the Court was delivered by

Johnston, Ch.

This Court is satisfied, upon the reasoning *309of the Chancellor, that the instrument is a deed. As to the fact of its delivery, his conclusion, must, according to our practice, have a decisive influence, unless gross error appears-But so far from this, it appears to us that no other conclusion could be drawn, in this case, than that to which the Chancellor came. Two days after the execution of the paper, we find it in the hands of the recording officer, for registration. Now it could have been delivered to him only by the grantor or some other person to whom the grantor -transferred the possession of it. In either case, it was a delivery which the Court would make use of for the benefit of the infant grantee.

We concur also with the Chancellor in so'much of his decree as is questioned by the 2nd and 3rd grounds of appeal.

Subject to an enjoyment by himself during his life, the grantor conveyed the property indefinitely to his son. Throwing out of view, for the present, the provision in favor of the chib dren of Ann and Laura Yarn, and of the grantor’s brothers ; this conferred upon John H. Snider a present vested title in remainder to the fee in the property. The delivery of the deed was sufficient to make this good to him. But instead of leaving the fee in him, unconditionally, the deed makes his title defeasible on the contingency of his dying in his minority without issue; and provides that the property shall go over to the children of the persons mentioned. I suppose the deed was sufficient to pass the whole property in remainder out of the grantor, and into his son, with or without conditions; and a delivery of it to the son was good to vest the title in him subject to the conditions mentioned. If the conditions failed, the only consequence was that the title of the son became indefeasible There was no reverter.(a) If the condition happened, the grantee became a trustee for the persons to whom the contingency worked a benefit. The question of interest, arising from the contingency, must be one purely among these *310parties. But, apart from this view which regards the grantee, John H. Snider a trustee for the ulterior remaindermen, and regarding the interest of the latter as legal and not merely equitable, I am of opinion, that where a deed conveys property indefinitely, defeasible in favor of other persons on a contingency, the deed is sufficient for all who take an interest under it, and its delivery to the first taker is a deliveryto all.(a)

We are of opinion with the Chancellor, that the declaration in the deed, that in the event of John H. Snider’s dying in minority and without issue, the property is “ to go ” to the ulterior remaindermen, is a sufficient conveyance to them, in that event, and we concur in his conclusions as to the children who became entitled.

It is ordered that the decree be affirmed and the appeal dismissed.

Dunkin, Daegan, ano Wakdlaw, CO., concurred.

*Appeal dismissed.*

(a)

*Kerah*vs. *Yongite,*7 Rich. Eq. 100; *Shanda*ys. *Rogers,*id. 424.

(a)

*Hill*vs. *Hill,*Dud. Eq. 71.