#### Elias S. Ellis, Mary Ann L. Scurry, et al., *vs.*Wm. H. Woods, et al.

Testatrix bequeathed to her daughter M. A., a negro girl, “to be hers and hers only, during her natural life, and at her death to be equally divided among the istue of her body, and not to be subject to the debts of her husband or any other person *—Held,*that M. A. took a separate estate in the negro girl; and, upon her afterwards marrying, that her husband became trustee for her.

Her husband sold the negro girl, and upon bill filed, the purchaser was ordered to deliver her up to M. A. or account for the value.

Technical or express words are not necessary to create a separate estate. Such an estate may be created by implication, and where the intent to create it is manifest, such intent will prevail, although there be no express words of that import.

Where a separate estate is given and no trustee appointed, the husband becomes trustee for the wife.

Where a purchaser pleads purchase for valuable consideration without notice, he must prove that he paid the consideration before he had notice of the equity. His answer, if not responsive to any allegation of the bill, is not evidence for him on that point; and, even if evidence, it is not sufficient where it merely states, that he purchased for a certain sum, being the full value, without saying that the sum was paid.

Where a will has been admitted to probate, and is on record in the Ordinary’s office, the law .implies notice of a trust relating to personal property contained in it.

One cannot plead want of notice of the judgments and other records of the Courts. Notice is implied by law.

BEFORE WARDLAW, OH., AT SUMTER, JUNE SITTINGS, 1856.

On tbe 3d May, 1853, tbe complainants, Elias S. Ellis, Mary Ann L., wife of E. Madison Scurry, and ber infant cbild, Edward Scurry, filed their bill against' William H. Woods and E. Madison Scurry, in which they stated, that tbe late Mary Ellis of Williamsburg district, made ber will, *20on the 20th May, 1850, by which she bequeathed, *inter alia,*as follows: *"Item.*I will and bequeath to my daughter, Mary Aun L. Ellis, one negro girl named Annie, and her future increase, to be hers, and hers only, during her natural life, and at her death to be equally divided among the issue of her body, and not to be subject to the debts of her husband or any other person; also one cow and calf, two beds, bedsteads and furniture, and all the rest of my household and kitchen furniture not disposed of before or after in this.”

That the complainant, Elias S. Ellis, was nominated as executor, and shortly after the death of testatrix proved the will and qualified as executor; that the complainant, Mary Ann L., intermarried with the defendant, E. Madison Scurry, in 1852 ; that Elias S. Elias regarding himself as the trustee of the said Mary Ann L., for her sole and separate use, allowed the negro girl Annie to go into the possession of his *cestui que trust;*that William H. Woods afterwards purchased Annie from E. Madison Scurry, — they both well knowing the contents of said will; that he, Woods, wrongfully withholds the possession of said girl, and is about to convey or run her off, so as to place her beyond the jurisdiction of the Court: and the prayer was that Woods be compelled to deliver up said girl or account for her value.

In his answer, the defendant, Woods, stated that he purchased Annie, on the 4th April, 1853, from E. Madison Scurry, for six hundred and seventy-five dollars, that sum being her full value, and received from him a bill of sale, with warranty title; that Scurry and others told him the title was good ; that he sold Annie shortly after his purchase in Camden; he denied all knowledge of the existence or contents of the will of Mary Ellis, and submitted that if complainants’ construction of the will was right, he nevertheless should be protected, being an innocent purchaser, for valuable consideration, and without notice.

*21On hearing the bill, answer, evidence, and argument, his Honor ordered and decreed that the bill be dismissed.

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

1. Eor that the limitation over of the slave Annie and her increase to the issue of the body of Mary Ann L. Scurry, with the words, “ and at her death to be equally divided among the issue of her body” is not too remote, and therefore the infant complainant, Edward Scurry has a right to a decree for the forthcoming of the said 'slave and her increase at the death of the said Mary Ann L. Scurry; and his Honor ought so to have declared.

2. Eor that, whether the limitation over be too remote and void, or not, the plain and clear purport of the words, *“*to be hers and hers only, and not to be subject to the debts of her husband,” created a separate estate in the said Mary Ann L. Scurry upon which the marital rights of E. Madison Scurry could not attach, and therefore the sale to William H. Woods is void, and Mary Ann L. Scurry has a right to the protection of this court in the enjoyment of her separate estate; and his Honor ought so to have declared.

8. Eor that, all the circumstances of the case fully establish, that William H. Woods not only had legal notice of the complainants’ claim, but that he was sufficiently put on his guard as to said claim, without legal notice ; so that he could not in any event occupy the position of an innocent and *bona fide*purchaser, without notice; and, therefore, even if he did part with the said slave and place it out of his power to produce her before this suit was commenced and before demand, the claim being an equitable one, this Court has full power *22to decree an account against Mm for tbe value of tbe slave; and bis Honor ought so to bave done.

*Rich,*Bellinger, for appellants.

*W. F. Be Saussure, Blanding,*contra.

Tbe opinion of tbe Court was delivered by

Dargast, Ch.

Tbe third clause of tbe will of Mary Ellis, is in tbe following words: *“*I will and bequeath to my daughter Mary Ann L. Ellis, one negro girl named Annie; and her future increase, to be hers, and hers only, during her natural life, and at her death to be equally divided among tbe issue of her body, and not to be subject to tbe debts of her husband or any other person, also one cow and calf, &c.”

Tbe question principally discussed in this case, and tbe one which presented tbe greatest difficulty to tbe mind of tbe Court, is whether by tbe terms of this bequest, Mary Ann L. Ellis, the plaintiff, (now Mrs. Scurry,) took a separate estate in tbe negro girl Annie. Eor Annie bad been sold by tbe legatee’s husband, E. Madison Scurry, and bought by tbe other defendant William H. Woods. And this suit was instituted to recover the said negro Annie from tbe purr chaser.

. What language is necessary to create a separate estate, where express and technical words bave not been employed for tbe purpose, has given rise to much discussion in tbe Courts of England and America, and tbe result in tbe decision of cases, has been various, and contradictory. At one time tbe current of tbe decisions has run strongly in favor of tbe husband; and as remarked by a learned commentator, 2 Story’s Eq. Jur. 821, note, “tbe case of *Brown*vs. *Clark,*3 Ves. 166, shows bow nicely language has sometimes been interpreted to sustain tbe marital rights of tbe husband.’’ *23On the other hand there is a class of cases, which verge to the extreme in. the opposite direction. Upon the question whether Mary Ann L. Ellis takes a separate estate by the will of her mother, a decision either way might be supported by a very formidable array of authorities. Nor are the decisions of'the Courts of South Carolina entirely free from the imputation of vacillation. Amidst all the discordance of the decisions, one principle is recognized throughout, namely, that technical or express words are not necessary to create a separate estate. And from the decided cases, another principle is clearly deducible; and that is, a separate estate may be created by implication, where there is a manifest intent. In the application of the last mentioned principle, the difficulty has always been in determining by what degree of force, such implication should appear. I doubt not, that in some cases, language too slight for such a purpose has controlled the interpretation unfavorably to the marital rights. Whilst in an equal number of cases, the marital rights have been sustained in violation of a manifest intent to create a separate estate. The only safe and rational rule that can be laid down as applicable to such cases is one, the enforcement of which ■must depend much upon 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.

One of the grounds, upon which a separate estate has been implied in favor of the wife, is where, by the instrument creating the estate, she is clothed with a dominion over the property, which would be inconsistent with the marital rights. There is a numerous class of cases to this effect. Another class of cases, equally numerous, goes to establish the principle, that where the marital .rights are restricted and curtailed, *24sucb restrictive provisions can bave no other reasonable interpretation, than that a separate estate was intended for the woman. Both of those presumptions are founded upon fair and logical inductions; and where technical and express words are not employed, there can be no stronger grounds for believing that a separate estate was intended to be created. I come now to apply these principles to the facts of this case. The testatrix gave the negro girl, Annie, to her daughter, *“ to be hers and hers only"*&c. If it was to be a simple gift, upon which the marital rights could attach, why was it made in this form ? What is the import of the words *“ to be hers*and *hers only,”*— words not at all necessary, unless they imply an intention to create a separate estate? The testatrix obviously meant, that the estate should be her daughter’s, and “ hers only,” in contradistinction to, and in exclusion of, the rights of some other person; and the person meant can be none other than the husband, for in reference to no other person would the language have any sense or meaning. Not satisfied with this manifestation of her intention, the testatrix proceeds to declare.that the property bequeathed “should not be subject to the debts of the husband ” of the legatee. One of the essential incidents of property is, that it is subject to the debts of the proprietor. And this restriction upon the marital rights is incompatible with any other interpretation, than that the testatrix intended to create a separate estate in her daughter, as to the property in question. It is the opinion of the Court, that Mary Ann L. Ellis (now Mrs. Scurry) took a separate estate in the negro girl, Annie. I do not think that Elias Ellis, the testatrix’s executor, is a trustee of the estate. There is no indication of an intention to appoint him a trustee, or to give him any other duties or powers, beyond those that were incident to his office of executor. But no trustee was necessary; or, rather, the want of one, by the appointment of the will, will not invalidate the provision creating the separate estate. Boper, in his treatise on Husband and Wife, *252 vol., 156, says, “ it is settled, that-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.” i

E. Madison Scurry, the husband, is regarded by the Court as the trustee of the plaintiff, his wife. And the other defendant, William H. Woods, has confessedly purchased the trust property from the trustee.

It is equally well settled as a principle, in this Court, that a purchaser of the trust property from a husband, being a trustee as in this case, or from any other trustee, for a valuable consideration, without notice, will be protected in his title; for where the equities are equal, and the property is equitable, the Court will not disturb the title of a *Iona fide*purchaser of property which he has acquired for a valuable consideration. To sustain himself in this ground of defence, it is necessary for the purchaser to show that he has paid the consideration, and if it appears that he has not completed the purchase, by paying the consideration before he has had notice of the plaintiff’s equity, *he*will be held, as a trustee, in the place of him from whom he purchased, and be accountable to the same extent.

In this case, as to the terms of the purchase and its consummation, there is no proof before the Court, save that which is contained in the defendant’s answer. He says that he purchased the negro .from his co-defendant, E. Madison Scurry, on the 6th day of April, 1853, for the sum of six hundred and seventy-five dollars, which he considers equivalent to her value, and that this was before he had notice of the plaintiff’s claim. The defendant, Woods, does not say that the purchase money was paid, and the contract completed, before he had notice, nor does it appear that it has yet been paid. The payment of the price is not necessarily implied in *26what be says in bis answer. A person may be properly said to *purchase*property when be bas entered into a contract or agreement for that purpose, although the consideration may not be paid. To sustain a defence like this, the completion of the contract should be proved.

Besides this, the evidence of the fact, as far as the proof goes, rests solely upon the allegations of the defendant’s answer. This is not sufficient, if the statement had been positive as to the payment of the purchase money before notice. His answer is not evidence on this point. It is not responsive. He was not interrogated as to these particulars. Setting up in his answer a matter of defence, he was bound to prove it by competent evidence.

For a purchaser from a trustee to be protected in his title, he must be a purchaser without notice, express or implied. The Court is of opinion, that the defendant, Woods, had implied notice. The will of Mary Ellis, which created this separate estate, had been admitted to probate It was on file in the office of the Ordinary. It was of record there. This was implied notice. The proceedings of all our Courts are public. Their records, as those of every public office where records are kept, are open to the inspection of every citizen of the country, who has an interest or an inclination to inquire or investigate. The keepers of such records are bound to produce and exhibit them on demand. When one purchases land from a defendant in execution, he cannot protect himself in the purchase, or set aside the *lien*of the judgment, on the plea that he had no notice of the enrolment of the judgment ; or, if he purchases a negro, or other chattel, he cannot avoid the prior claim of the plaintiff in the execution, on the ground that he was not aware that such execution was lodged in the office of the sheriff. In these instances, the purchaser has implied notice. I think that public policy requires that the doctrine should be broadly declared, that the records of all eur Courts should be implied notice in all cases, except *27where legislative Acts have or shall modify or restrict the doctrine. The conclusion at which I have arrived is, that the defendant, Woods, has purchased the separate trust estate of the plaintiff, Mrs. Scurry, without proof of having paid the purchase money before notice of the plaintiff’s equity, and, in fact, with implied notice of that equity. On the plainest principles applicable to the subject, he must make restitution. Upon the question, whether Mrs. Scurry takes, by the said will, only a life estate, and whether her issue, after her death, will be entitled to take by way of remainder, the Court has made no decision; a judgment upon that question not being necessary to the adjudication of this case.

It is ordered and decreed, that the circuit decree be reversed, and that the defendant, 'William H. Woods, deliver to the plaintiff, Mrs. Mary Ann L. Scurry, the said negro Annie, on or before, the first day of February next, and that he do account before the Commissioner, to the said plaintiff, for the hire of the negro from the 4th day of April, 1853. And in default of the restitution of the said negro, as herein directed and required, it is further ordered and decreed, that the said William H. Woods do account to the said plaintiff for the value of the said negro Annie, and the profits of her labor from the 4th day of April, 1853. It is further ordered and decreed, that the defendants pay the costs.

JOHNSTON and Dunkin, CO., concurred.

Wakdlaw, Ch.,

dissenting.

If the will of Mary Ellis confer a separate estate in the slave Annie, on her daughter Mary Ann L., whether for life, or in fee, the question of the validity of the limitation over to the issue of the daughter, made by the first ground of appeal, involves merely the proper joinder of the plaintiffs in the suit, and becomes too unimportant for discussion. As to the third ground of *28appeal, it is sufficient to remark, tliat, while I agree that tbe probate and registry of tbe will afford constructive notice to all persons, I adhere to tbe opinion expressed in *Nix*vs. Harley, 3 Rich. Eq. 383, that there is a difference between express and constructive notice as affecting the conscience of a defendant, and the remedy to be afforded by the Court. I agree, too, that under the facts of the case, the title to Annie must be determined by the interpretation of the third clause of testatrix’s'.will, unaffected by what is said in the fourth clause concerning Sydney. I dissent, however, from the judgment of the Court as to the matter of the second ground of appeal, that the terms of this third clause of the will give to the daughter a sole and separate estate in the slave Annie.

By this clause Annie and her future issue were bequeathed to the daughter, then unmarried, “ to be hers and hers only, during her natural life, and not to be subject to the debts of her husband or any other person.”

The general doctrine on this topic is well expressed by Chan. Dunkin, as the organ of the Court of Errors, in *Wilson*vs. Bailer, 3 Strob. Eq. 260. *“*A separate interest in a married woman, is in derogation of the husband’s common-law right — the creature of the Court of Chancery — and unless the intention to exclude the husband is clearly expressed, or arises by necessary implication, the marital right is maintained. In this all the authorities concur.” And the Chancellor further adopts the phraseology of one of our cases • “ The expression of such intent should be plain, explicit and unequivocal,” else there will be a continual effort from slight expressions to imply this separate estate in the wife, leading to unceasing litigation. In *Nix*vs. Bradley, 6 Rich. Eq. 48, Chancellor Dargan arranges the modes of creating a separate estate in a wife into three classes: 1, where the technical words, sole and separate use, or others equivalent are used *• 2,*where the marital rights are expressly excluded: and 3, *29where the wife is empowered to perform acts concerning the estate given to her, inconsistent with the legal disabilities of coverture. There the estate was given in trust for the use and benefit of the daughters of testator, (some of whom were married and some unmarried,) and “ not subject to the debts, contracts or sale of their present or future husbands,” and with the assent of the whole Court it was held to be a separate estate of the second class above mentioned. In the present case, if there be a separate estate it must be created likewise by the exclusion of the husband’s rights, for there is no pretence that technical words are used, nor that any special power of a feme sole was conferred on the daughter to be exercised when she should become a wife. It is clear and uncontested that the words in the bequest, “to be hers only,” do not by their single force exclude the husband’s rights. It has been often adjudged that a bequest to a wife, “ for her own use and benefit,” quite equal in force, do not give a separate estate to a wife: *(Wills*vs. Sayer, 4 Mad. 409; *Roberts*vs. *Spicer, 5*Mad. 491,) although such words might have this effect, if followed by others excluding the husband’s control and enjoyment, such as “independent of the husband and in one case, *(Margetts*vs. *Barringer,*7 Sim. 482,) the phrase “ independent of any other person” was treated as a euphemism for independent of the husband. In *Tyler*vs. *Lake,*2 Rus. & Myl. 183, a legacy in trust for two married women, with direction to the trustees “to pay the moneys into their own proper, and respective hands, to and for their own use and benefit,” was held to be an absolute gift to the husbands through the wives; and a similar decision was made in our own case of *Foster*vs. *Kerr,*4 Rich. Eq. 390, on a bequest of slaves to a wife, “ to her and the heirs of her body and to them *alone."*All words pointing towards the creation of a separate estate have diminished effect, (it has been matter of controversy whether they had any effect,) when the donee is unmarried at the time of gift; as a separate use *30however well conveyed, operates only during coverture, and in restriction of tbe husband’s rights only, for a woman dis-covert has as full power to dispose" of her separate estate as of any other portion of her property. *Nix*vs. Bradley, and the cases there cited.

The other words in this will supposed, to indicate the purpose of testatrix to raise a separate estate in the daughter, "not subject to the debts of her husband or any other person,” — do not necessarily imply the intention to exclude the husband. If the clause be read, “ not subject to the debts of her husband,” without the addition of the latter words "or any other person,” which greatly increase the doubtfulness of the intent, it would still have been very equivocal that the testatrix intended more than to give' proj)erty without its necessary incident of liability for debts, to him who should become by the fact of marriage the substitute or successor of the express donee. Such a condition in a gift to a man or to a woman while sole, is void as utterly inconsistent with the nature of the estate given. *Brandon*vs. Robinson, 18 Ves. 429; *Heath*vs. Bishop, 4 Rich. Eq. 46. In *Rivers*vs. Thayer, 7 Rich. Eq. 136, we held that the equitable estate of a husband in property settled to the joint use of himself and wife, and so as not to be liable for his debts, was nevertheless liable to his creditors. In *Weatherford*vs. Tate, 2 Strob. Eq. 27, the testatrix bequeathed certain slaves respectively to her two married daughters Charlotte and Harriet, and in another clause of her will, said: “ all the property which I have given to my two daughters Charlotte Weatherford, and Harriet Tuttle, I give to them during their natural lives, and after their death to go to the lawful heirs of their bodies; no sale made by either of their husbands shall be valid, unless by the consent of one or both of my executors, and thus my executors have power to prevent such property being moved off the State.” Chancellor Johnston in the circuit decree said: “ there can be no question that Harriet Tuttle took an absolute estate in the slaves, and *31that ber husband's marital rights attached, investing him with power to dispose of them as he pleased. The bequest is to Harriet Tuttle for life, and the limitation over is to the lawful heirs of her body: and, judging apart from the terms of the will, I have no doubt there was in the mind of the testatrix a desire to secure to her daughter a life interest free from the control of her husband, and that the property at her death should go over, to the issue of her body living at her death; but in *Myers*vs. Pickett, 1 Hill Ch. 37, it was held that a bequest of chattels to one for life, and then to the heirs of her body, vested an absolute estate in the first taker, on the ground that the limitation over was too remote ; and that is this case. The provision that the slaves should not be removed out of the State, nor sold by the husband, is not a condition, because there is no forfeiture or penalty attached to it, and is utterly inconsistent with the general right of property, and can only operate as a command or order that the property should not be removed or sold, which the party might obey or not at his pleasure.” The Court of Appeals by Johnston, Ch., affirmed this decree and declared their satisfaction “with the view taken by the Chancellor.” Now surely an inhibition of the husband’s power to sell or remove a chattel given to his wife affords a much stronger implication of intention to exclude marital rights, than a mere general declaration that if the donee should be taken in marriage a chattel given to her should not be liable for a husband’s debts. I approve the decision of *Nix*vs. Bradley, that terms clearly excluding the dominion and control of a future husband over chattels given to his wife while sole, equivocally for her sole use, confer on her a separate estate as to such of the chattels as remain at the marriage; but restriction of the right of a husband to charge or incumber such chattels is the most equivocal of all limitations of his rights and powers.

But the desire of the testatrix in the will in question is not simply that the chattel given to her daughter shall not *32be liable for tbe debts of a future busbaud, but it is tbat tbe chattel shall not be liable for tbe debts of a husband *“*or any other person.” Tbe daughter was then unmarried, and tbe natural construction of tbe clause is tbat tbe property is to be exempt from liability for tbe debts of tbe daughter or any one else, and affords Another instance of tbe many attempts to give property without its necessary incidents.

In *Massey*vs. *Parker,*2 Myl. and Ke. 174, a testatrix bequeathed tbe interest of certain moneys to two unmarried grand-daughters for life, and directed tbat this interest should be “for and under their sole control, and tbat their mother shall have no control over this propertyand it was adjudged that no separate estate was given to the grand-daughters in exclusion of husbands, and that tbe control of the mother only was intended to be prevented. If tbe direction bad been simply tbat tbe property should be *“*under the sole control” of the grand-daughters, the decision must have been different; but the reference to the mother pointed and limited the meaning of sole control by the donees. This case has been impeached in some respects, but not as to this point. So here, if the property had been declared exempt from liability for the debts of a future husband alone, it might have been plausibly urged that one of bis characteristic powers as owner had been excluded,- involving a general exclusion of his marital rights; but when the property is declared exempt from the debts of all owners, it seems to be a bald attempt to give in fee, and still limit the inherent rights of the owners.

In my opinion the argument for a separate estate in this case acquires not much additional force by considering conjointly the particulars which separately are inadequate to create such estate by necessary implication. The slave is given to the daughter “ to be hers only,” that is, she is to be the single proprietor, and it is “ not to be subject to the debts of her husband or any other person,” tbat is, she or any one in her right may enjoy the property and yet not *33incur tbe responsibilities of an owner imposed by law; and, taken altogether, tbe clause means that tbe donee shall have all tbe benefits without tbe risks of bolding this property. I am unable to perceive that “ tbe intention to exclude tbe husband is clearly expressed or arises by necessary implicationand I apprehend that tbe present decision will be regarded by tbe profession as overruling *Weatherford*vs. *Tate,*and as impinging on tbe doctrines pronounced by tbe Court of dernier resort in *Wilson*vs. *Bailer;*with both of which judgments I am content.

*Decree reversed.*