#### *Anna Maria Terry vs. Daniel Brunson and others.*

Testator, in separate clauses of his will, bequeathed to each of his five children, one of whom was a son, and four of whom were daughters, certain personalty, to them and their heirs forever. The legacy to Mary, one of the daughters, was a female slave. Another clause of the will was as follows : “ It is my will, that if any one or more of my children, above named, should die without issue,” “ that his or her part or parts should be equally divided between the *surviving*brethren.” Mary died without is*79sue, leaving one of her sisters surviving her. Held, that the limitation over was not too remote, that the term *brethren*included the daughters of the testator, and that the sister of Mary, who survived her, was entitled to the slave and her increase.

A vested right of the wife may be effectually assigned by the husband, but her contingent interest will survive to her against his assignee, even though the assignment was made for a valuable consideration, and with her concurrence.

*Before*Johnston, Ch. *at*Edgefield, *June,*1843.

The decree of the Chancellor is as follows :

This bill is brought to recover certain family slaves, claimed by the plaintiff, who is the last surviving child of Joseph Minter, under the will of the said Joseph.

One of the objections to the bill, which I may as well dispose of at once, is, that it states no peculiar equitable circumstances to entitle the plaintiff to a decree in this court for a delivery of the slaves in question. That they are family slaves is sufficient; and besides, after the case of *Young vs. Burton,*M‘M. Eq. 255, it is no longer an open question, that a mere allegation that the defendant is in possession of slave property, to which the plaintiff is legally entitled, is sufficient to give jurisdiction to this court. It is thrown out in that case, that if the defendant is able to shew equitable circumstances, these may form such a de-fence as to induce the court to deny its aid to the recovery sought; but these defendants have stated none, and therefore the case stands upon the general rule stated.

The will of Joseph Minter, under which the plaintiff claims, bears date the 18th of April, 1774 ; the material clauses of which are the following: the third and seventh being those on which the plaintiff rests her claim.

“ 2. I give and bequeath to my son, John Minter, one negro boy named Abram, to him and his heirs forever.

3. *I give and bequeath to my daughter, Mary Minter, one negro girl, named Lidda*(Lydia,) *to be delivered to her at her marriage, or lawful age, to her and her heirs, forever.*

4. I give and bequeath to my daughter, Sally Minter, one negro girl, named Amy, to be delivered to her at her marriage, or lawful age, to her and her heirs forever. -

5. I give and bequeath to my daughter, Mercy Minter, one *80negro boy, named Primus, *to*be delivered *to her*at her .marriage, or lawful age, to her and her heirs, forever.

6. I give and bequeath to my daughter, Anna Maria Minter, fifty pounds, Yirginia money, (to be raised out of the rest of my estate,) to be delivered to her at her marriage or lawful age.

7. *It is my will and desire, that if one or more of my children, (above*named,) *should die without issue, then and in that case, His my will and desire, that his or her part or parts, should be equally divided between the surviving brethren*

It may be proper to state that the testator gave the whole residue of his personal estate to his wife, A. M. Minter, during widowhood, and upon the expiration of her interest, he directed it to be sold, and the proceeds equally divided among his five children aforesaid, by name; and then he repeats, by way of limitation, the identical words employed in the 7th clause, with the exception, that after the words *part or parts, the words of the above mentioned money,*are added.

This will was drawn and executed in the then province of North Carolina. When the testator died, it is uncertain *;*we have no direct evidence upon the subject. The family emigrated with him to South Carolina, where he died. The widow obtained letters testamentary upon his estate, from the Ordinary of Ninety-six district, the 28th of April, 1783, and on the 17th of June, 1784, caused an inventory and appraisement to be made of personal estate, to the value of £321, styling the testator, late of the district of Ninety-six, planter. This inventory did not include any of the slaves, the subjects of specific legacies in the will, though it embraced eight other negroes.*

The children of the testator married. Mary, the beneficiary under the 3d clause of the will, was twice married. In the first instance, she was united to Thomas Yeates, who is reputed to have perished in or near Charleston, during the Revolutionary war. They were married on Saluda, in this State, but when is uncertain. She had no issue by him, but he left several children by a former marriage, and among them, a son named *81Abram, two daughters, one of whom subsequently married one Green Jackson, and the other one Jedediah Cook. Of the second marriage of Mary we shall speak hereafter. John Minter, the’ son of the testator, was married, and died leaving issue two sons, Joseph and William. Sarah Minter, one of the testator’s daughters, became the wife of Wm. Terry.- By her he had several children. Both he and she are now dead, leaving issue. Mercy Minter, another of the testator’s daughters, married, in the first instance, one Thomas Jones, by whom she had two daughters, Elizabeth and Diana. After the death of her first husband, Mercy married one Henry Parkman. Both Mercy and Parkman are dead, leaving issue.

Anna Maria Minter, the last of the testator’s daughters, and who is the plaintiff in this suit, married John Terry. He died in 1817, and the plaintiff with her son, James Terry, are his administrators. Besides the five children named in his will, the testator was reputed to have had a daughter, Elizabeth, who had become the wife of one Clement, and died in Virginia, leaving a son, Stephen Clement, and a daughter whose name was not stated at the hearing, probably Isabel.

To recur now to Mary Minter, to whom Lydia was given by the 3d clause of the testator’s will. After the death of her first husband, Thomas Yeates, (but at what time is disputed) she married one John Elam, a widower, who had several children by a former marriage, who will be noticed hereafter.

A family bible of Elam’s was produced, in which are the following entries : “ Mary Elam, wife of John Elam, was born the 8th day of June, in the year of our Lord, 1756.” “ Lydia was born the 12th of March, 1767.” “ John and Mary Elam were married the 16th November, 1780.” The bible in. which these entries are made, forbids the supposition that the entry in relation to the marriage of Elam and wife, was made cotemporaneously Avith the fact. The edition of the book was of the year 1802. This entry, as well as the others, was proved to be in the hand writing of Abram Yeates, who has not been heard from for the last thirty years, and it was contended that he made the entries for the purpose of supporting a claim which he, with the other children of Yeates, set up to an interest in Lydia and her children, in the early part of the present century, and which will be presently stated.

John Elam having by his marriage obtained possession of Lydia, who was in the hands of his wife, retained possession of *82her and such issue as she had, until about the year 1803. It is probable that Elam had about this time, or shortly before, divided the family of Lydia among Yeates’s children, retaining a part for his wife. In this year, a suit in equity appears to have been brought by William and Joseph Minter, (sons of John,) and by Wm. Terry, the husband of Sarah Minter, and John Terry, the husband of the present plaintiff, formerly Anna Maria Minter, against Elam and wife, Abram Yeates and Green Jackson, and Jedediah Cook, the husbands of Abram’s • two sisters, already mentioned. It will be observed that the wives of the said Wm. and John Terry were not joined as plaintiffs in this suit. No other portion of the record remains, except the *sub. ad respon-dendum,*which bears date the 14th of December, 1803, together with an order of Chancellor Rutledge, dated the 1st of the same month ; that the defendants give bond with surety in the sum of $3000, “ for the purposes in the bill prayed, until the further order of the court,” which order purports to have been granted upon reading the bill, and on motion of the late Mr. Dunlap, plaintiff’s solicitor.

The *sub. ad respondendum*was lodged with Mr. Sheriff Butler, the 5th of March, 1804, on which were indorsed an order by Mr. Dunlap, conformable to that of the chancellor, and a return by the sheriff, dated the 8th of March, 1804, that he had by deputy served Elam and wife with copies of the *subpoenas.*About this time Elam made a statement to Mr. Gantt, who gave the following opinion.

“ By the intermarriage of Mary Minter with Thomas Yeates, (which Mr. Elam states to have taken place 27 years ago,) I am of opinion that the negro woman Lydia, bequeathed to Mary Minter, by Joseph Minter, became the property of the said. Thomas Yeates, in virtue of his marriage, and that on the death of said T. Yeates, said negro woman Lydia and her increase descended to the representatives of T. Yeates by a former wife, subject to the widow’s third. I am also of opinion, that the death of Mary without issue, does not alter the case ; the contingency being too remote to support the limitation over to the brethren mentioned in the 7th clause of Joseph Minter’s will. R. GaNtt.”

We hear no more of this suit until the year 1807. On the 5th day of February of that year, Abram Yeates executed a bill of sale, under seal, by which, without stating any consideration, he conveyed to John Terry, with warranty against *himself*and his heirs and his personal representatives, two negroes, Lucy *83and Ursula, “being the increase of a certain Lydia, which were, by the last will and testament of Joseph Minter, deceased, given to Mary Minter his daughter.” On the 9th of the same month Jedediah Cook, by a similar deed, with like warranty and a like omission as to the consideration, conveyed to the said John Terry “three negroes, to wit: Dinah and her two children, the in crease of a certain Lydia, which was, by the last will and testament of Joseph Minter, deceased, given to Mary Minter his daughter.” On the 12th of the same month, a paper was drawn up, purporting to be a conveyance, without consideration stated, from Joseph and Wm. Minter, William and John Terry, Henry Parkman, Stephen and Isabel Clement, Anna Maria Jones, and Elizabeth Rotan, to John Elam, for six negroes, Lydia, Pat, Bob, Peter, George and Henry ; warranting them against the grantors and their heirs, and against “ any of the surviving brethren of Joseph Minter deceased.” It was not sealed, and was subscribed by Wm. and Joseph Minter, Wm. and John Terry, Henry Parkman and Stephen Clement, the others not having joined in it.

On the 21st of the same month, two papers, the first of them under seal, were executed, which, as they are short, I shall transcribe. The first was executed by Elam.

“J. Minter *&*al. J *vs.*V In Equity — Southern Circuit. John Elam et al. j

Whereas, the matters in dispute between the above parties are amicably settled, I, John Elam, for myself and wife, do hereby release, and forever quit claim of or to certain negroes, sold and transferred by Abram Yeates and Jedediah Cook, by their several bills of sale, to John Terry, his heirs and assigns forever, which said negroes were formerly the property of my wife, Mary Elam, and were part of the negroes in dispute in the above action. Witness my hand and seal, February 21st, 1807.

John Elam, [l. s.]”

Test — David Moore, Watson Boon.

The second was as follows:

Minter *&*al. I *vs.*V In Equity. Elam *&*al. )

Whereas, all matters in dispute between the above parties are finally compromised, I do hereby agree, that I have received full *84satisfaction for my right to the negroes in question in the above case, and release all and every right to any action or suit which I might have against John Elam, one of the defendants, in consequence of his having had the negroes in possession. Feb. 21, 1807.

David Moore, William Minter,

Watson Boon. ■ Joseph Minter.

William Terry, his

Henry ¡x¡ Parkman, mark.

John Terry,

Stephen Clement,

Is. Clement.

Thus ended this suit. There is no proof that any of Lydia’s family had at any time passed out of Elam’s possession, except the five named in the conveyance of Abram Yeates and Jedediah Cook, already mentioned. These are not included in the present suit. Elam and his wife, who had before been in the constant possession of the residue, continued to hold them until Elam’s death, which took place in 1824.

He left a will, by which he gave his whole estate, real and personal, to his said wife, during her life, at the expiration of which, after giving directions as to his lands and personalty, exclusive of his negroes, he bequeathed them to certain persons, who are defendants in this suit. Then occurs this remarkable clause — “ In case any dispute should happen to arise respecting the right of my property, my will is, that my executors shall make any arrangement or settlement that they may think most to the interest of my estate.” Lastly, he appointed three executors, of whom Daniel Brunson alone qualified. He is nor dead, and his executor is made a defendant in this suit.

Mrs. Elam retained possession of the negroes until her death in 1841. Upon the occurrence of which, they were taken into possession by the representative of her late husband.

She never had issue, and the plaintiff, who is her sister, and the only one of Joseph Minter’s children who survived her, claims the negroes which she had in possession when she died, being all of the issue of the slave Lidda or Lydia, and of whom a list is given in the bill. It will readily occur to the mind that this claim is founded on the 7th clause of Joseph Minter’s will.

The claim is resisted, on the grounds that there are circum*85stances warranting the inference that Mary Minter, to whom Lydia was given by the third clause of the will, was married to Yeates in the lifetime of her father, who having provided in his testament that Lydia should be delivered to her on the occurrence of that event, may very naturally be supposed to have executed his testamentary intention, in which case the slaves vested in Yeates, and never fell within the operation of the will. If this was not so, then it is contended that the limitation over is not to the surviving child of the testator, but the surviving brethren, which may mean surviving brethren of the testator, or surviving kindred of the legatees. In the former sense, the plaintiff is not embraced; and if the latter construction be adopted, the limitation is to all the numerous descendants of the five children named in the will, as well as to the plaintiff, and that they must be brought in. It was also argued, that under this latter construction, the limitation did not necessarily imply that the testator contemplated any particular persons, as the persons to take, upon Mrs. Elam’s death, but an indefinite succession of persons who might come in by descent; and that this, according to the case of *Massey vs. Hudson,*2 Meriv. 135, did not repel the idea that the limitation was to take effect upon the indefinite failure of Mrs. Elam’s issue ; and that the limitation itself, was, therefore, too remote. Finally, the compromise of the suit of 1803, with the papers then executed, and especially those executed by the plaintiff’s then husband, were relied on as a sufficient title in Elam, particularly when coupled with the great lapse of time. I do not think that any of these objections can prevail. The most plausible of them relates to the question of fact, whether Lydia was delivered to Mrs. Yeates in the lifetime of her father. If she was, it matters not, whether this took place before or after Yeates’s death, the will of her father could not operate on the property. But what have we to warrant such • an assumption? We have nothing but conjecture, and this in the face of circumstances raising a strong probability that the fact was otherwise. There seems to have been a constant persuasion on all hands, that the negro, Lydia, passed under the will of Joseph Minter. For a time, and until the circumstances created an opposition to it, Yeates’s children seem to have raised this pretension, that their father had reduced this slave to possession. It may be, that Elam was willing to concur with them, and that he allowed Abram Yeates to make use of his family bible, in support of a claim by which both himself (Elam) and *86Yeates’s children, were to be benefited. He would thereby convert a life estate of his wife, in the whole property, into an absolute title in himself in one-third. The entry, as to Lydia’s birth, was a very unusual procedure, and may warrant a suspicion. But when the pretension came to be contested, how did it stand ? If the fact was so, that Joseph Minter actually gave Lydia to his daughter, in his lifetime, was it not easy to prove this in 1803 ; the daughter being then alive to suggest the testimony of the fact? And if neither she, nor Elam, nor the Yeates’, could prove it then, are we to conjecture it now? So far as Abram Yates and Jedediah 'Cook were concerned, they coincided in the deeds of the 5th and 9th of February, 1807, that the fact was otherwise; and that Lydia and her increase were Mrs. Elam’s, by virtue of the will of her father. Elam refers to these deeds in his release of the 21st of the same month ; and was very guarded in the conveyance made to him on the 12th, to have a special warranty against the *surviving brethren*mentioned in Minter’s will. The circumstances shew that, at that time, when the facts were fresher and better known, there was a general persuasion contradictory to the facts we are now asked to believe. And this did not stop there. What was it that induced Elam, as late as 1824, to apprehend that his title to some portion of his estate might be contested ? Why, if his title was not questionable, did he specially authorize his executors to compromise it upon the best terms they could ? Is this no ground for a conjecture, contrary to that now suggested, that there was a secret conviction in his mind, that Lydia passed under the will ? I do not use these circumstance as proof that she did, but as fully authorizing and requiring the court to reject a fact merely suppositious and conjectural. We may surely appeal to the conduct of interested parties, and the inferrent evidence of circumstances, for this purpose, and they generally de-velope the real truth. As to the arguments drawn from the fact, that the executrix of Joseph Minter did not include Lydia in the inventory, made by her in 1784; *this*cannot weigh against the circumstances I have mentioned. If this fact proves that Joseph Minter had delivered Lydia in his lifetime, the same fact exists as to all the specific legacies, and proves that all of them were so delivered. But is it not more reasonable to conclude, that the remission of all was owing to the further fact, that the widow and executrix was the residuary legatee, and charged with the debts of the testator, and that being so responsible, and *87having assets, she deemed it unnecessary to inventory-the specific legacies, in which the creditors had no interest ?

The next question is, upon the proper construction of the will. I cannot suppose that the limitation is too remote, whatever meaning may be attached to the word brethren. Be the persons who they may, that come under the designation, they were to take as survivors of Mrs. Elam, and were, therefore, intended to have a personal enjoyment of the property limited.

The case of *Massey vs. Hudson*does not apply. There, the limitation was to the survivor, his heirs and assigns. The latter would take, according to the terms, although the issue of the first taker should fail, at an indefinitely remote period. No personal enjoyment by the survivor was certainly contemplated or intended by the benefactor; and this being the case, as Sir Wm. Grant said, the objection of remoteness was not at all obviated by such a limitation. Again, I do not believe the testator intended by *the surviving*brethren, either his own brethren, or the next of his kin to the legatees named in the will, who might happen to be alive at the happening of* the contingency. These constructions are resorted to, only from the supposed difficulty of applying the words to- the survivors among the legatees named in the will. There is no other ground for this, but that of necessity. The legatees were, one male and four females. Now, it was argued, that among these there were no brethren, (in the plural) to take. That the word was masculine, and could not be naturally applied, and was not, therefore, intended to be applied, to the females, and it was asked, if John Minter, the brother, had died first, and without issue, how could the four sisters have presented themselves as his *brethren?*But do not all these difficulties apply to the construction contended for ? We do not know that the testator had any brethren. But suppose he had one brother and several sisters, and that these had survived Mary Elam. Would the brother be excluded, because he was not *brethren ?*or the sisters, (if they alone survived.) because there was no brethren among them? And so of the next of kin of the legatees themselves, which is the other construction contended for. That it is unusual and rather unnatural to employ the word brethren, as it is employed in this will, to designate a class of persons, such as the legatees named, is admitted. But that it was intended to designate the survivors among these legatees is very apparent. It is employed correlatively. *The*survivors has reference to the *children above**88named; implying that the survivors should be from among them. The contrast is between those among them who should die, and those who should *survive.*Nor is the philological criticism upon the word *brethren*so strong as to forbid its application in the sense contended for by the plaintiff. This application of it is legitimate, although unusual. We hear from the highest authority of the words *men*and brethren, both masculine, having been employed in addressing mixed multitudes, and we learn from the same sacred source, that a whole nation was invoked as *brethren*of the stock of Abraham. The word is a noun of multitude, and may, undoubtedly, be so employed.

Another objection is founded on the transactions, already related, of February, 1807. But there is nothing in these to bind the plaintiff. She was no party, nor was her present right then in existence, much less concluded either by the suit, the compromise, or the deed. What the suit was, we do not certainly know. That it was brought by persons entitled to no claim whatever to the negroes, appears from the list of the plaintiffs. Even John Terry, the husband of the plaintiff, who was one of them, had no right; for it could not then be foreseen that the right of survivorship- would ever rest in his wife. How could any one claim as *survivor*of Mrs. Elam, who was then alive, and lived twenty-eight years afterwards *1*The probability is, that some claim was set up, under one of the constructions now contended for by the next of kin; and that the suit was intended to secure the property against some apprehended danger of loss or removal. The compromise is sought to be supported as a compromise of family rights, and as a family arrangement. But how can it affect the plaintiff, who was no party, and whose right, having then no actual existence, could not *be transferred*by her husband *1*

The deed, as it has been improperly called, of John Terry and others, of the 12th of February, 1807, has no more effect than their release of the 21st. Suppose a consideration to have passed, and that Elam actually purchased the slaves from the persons who signed the paper, and paid them for them. It is not supposed that the plaintiff is bound by the acts of any of the vendors, except those of her husband. But neither is she bound by his. Marriage is not a sale of all the wife’s choses, but only confers upon the husband a right to reduce them. His sale or assignment cannot invest the .assignee with any greater right than that possessed by the husband. A vested right of the *89wife may be effectually assigned by the husband ; but her contingent interest will survive to her against the husband or his assignee, even though made with her concurrence, and for a valuable consideration. This is emphatically true with us, since, according to *Ewing vs. Smith,*2 Dess. 417, and *Magwood vs.*Johnston, 1 Hill Ch. 228, the coverture forbids the wife’s concurrence from being regarded as her contract. The very ground of a wife’s equity is to protect her against the acts of her husband; a ground which applies with all its force to any. attempt on his part to bargain away her reversionary or contingent interests. Upon this principle it is, that the husband cannot assign the wife’s annuity beyond his own life; the law allows him to assign that which he' has opportunities to reduce, but beyond this it allows to the wife the benefit of all contingencies.

I do not think thfe plaintiff’s claim is to be afiected by the unguarded expressions into which she seems to have been betrayed, by a want of sufficient advice as to her rights. It seems from them, that she felt a reluctance to press her claim, from moral considerations. She said Elam had bought the negroes, and ought to have them. But this was no release. She received no consideration. If, on the faith of these observations, any creditor or purchaser under Elam had been defrauded, they should weigh against her. But the defendants are volunteers occupying Elam’s place.

It is decreed, that the plaintiff is entitled to the slaves mentioned in the bill, with • their increase since the filing thereof, if any, and to an account for the hire of them since the death of Mrs. Mary Elam, formerly Mary Minter, and that the personal representative of John Elam do deliver said slaves to her, and account to her for said hire. The costs to be paid out of John Elam’s estate.

The defendants appealed from the decree of the Chancellor, and now moved to reverse the same, on the following grounds.

1. Because it was satisfactorily established by the proof, that the negro woman Lydia was delivered to Mary Minter, (after-wards Mrs. Elam,) before or upon her marriage with Thomas Yeates, in the lifetime of the testator, Joseph Minter, and therefore never fell within the operation of the will.

2. Because the limitation over, in the 17th clause of the will, void for remoteness and uncertainty. IS

3. Because the limitation over is not to the plaintiff, as she not embraced in the terms, “surviving brethren,” or if the IS *90terms “surviving brethren” mean surviving kindred of the legatees named in the will, then the other persons in that behalf mentioned in the pleadings and proof, are entitled as well as the plaintiff, and ought to be brought in and made parties to this suit.

4. Because the sale by the husband of the plaintiff of the negro woman Lydia and her children in 1807, to John Elam, is a bar to the present claim, affirmed and assented to, as said sale was, by. the plaintiff, after the death of her husband.

5. Because the settlement of the suit in equity, in 1807, resulting in the various sales or releases of the parties, show that it was a compromise of family rights and disputes, and in that aspect should now be supported, especially after the lapse of nearly forty years, and the repeated declarations of plaintiff, since the death of her husband, that the negroes’belonged of right to John Elam, under that compromise.

6. Because the plaintiff failed to establish any good and sufficient title to the negroes in dispute, and the decree was against law and the evidence.

And the defendants failing in those grounds, respectfully asked an issue at law to be directed, to try the questions of fact, whether the negro woman Lydia was given and delivered to Mary, the daughter of Joseph Minter, in his lifetime, and whether John Elam surrendered the negro woman Lydia to John Terry, and afterwards bought her in 1807.

*Griffin and Carroll*for the motion.

*Wárdlaw and*Bauskett, contra.

*

As a matter of curiosity, it may be stated that the eight negroes consisted of 1 fellow, 4 hoys, 1 wench and child, and 1 girl, all valued at a sum equivalent in federal money to $1198 42, making the average value of the slaves $148 55. In the same view it may he stated that among the articles of property, was a roller for cotton gin, showing the state of the culture of that staple. It was valued at 4 shillings.

*Per Curiam.*

We concur in the decree of the Circuit Court. It is therefore affirmed and the appeal is dismissed.