#### James F. Burton and Wife and others *vs.*J. H. Yeldell and J. A. Talbert.

Testator directed his estate to be sold on credit, and the proceeds he bequeathed to his daughter for life, to her sole and separate use, free from the control of her husband, with remainder to her lineal descendants; and he appointed his executors, trustees of his daughter. On bill filed by the daughter, her husband and their children, to prevent the sale and have the property itself, consisting of land and negroes, settled, according to the terms of the will, the Court refused to interfere, with the scheme of the testator.

BEFORE DUNKIN, OH., AT EDGEFIELD, JUNE SITTINGS, 1856.

James Yeldell, while in Ms last illness, being extremely low and feeble, executed Ms last will and testament, Aug. 15, 1854, tbe 2d and 3d clauses of wMch are as follows:

*10“ 2d. I will and direct that my executors do sell tbe whole of my estate both real and personal upon such reasonable credit as they in their discretion may think best, and after paying all my just debts as above directed, I then give, bequeath and desire all the balance of the proceeds of the said sales, and all the rest, residue and remainder of my estate of whatever nature and kind it may consist unto my daughter Mary Burton, in such way and manner that she may and shall receive and enjoy the interest and income thereof, for and during the term of her natural life, for her sole and separate use, free and uncontrolled by the contracts, debts or obligations of her present or any future husband — and to this end and for this purpose, I hereby nominate and constitute Jasper H. Yeldell and Joseph L. Talbert, Trustees of my said daughter, Mary Burton, with full power and authority to take charge of the legacy hereby bequeathed to and for the benefit of my said daughter, and to see to the execution of my will and desire as herein expressed.

“3d. That from and after the decease of my said daughter, Mary Burton, I give and bequeath the whole of my said estate to her lineal descendants in such shares and portions as they would be entitled to take as her legal heirs or distributees —the child or children of a deceased child to represent and take the share or portion of a deceased parent, free and discharged from any and all trusts — and I desire that the said Trustees of my daughter shall execute and perform the duty of making this division and distribution among the lineal descendants of my said daughter.”

Proceedings were had on behalf of these complainants, before the Court of Ordinary, and, on appeal, before the Court of Common Pleas for Edgefield district, to set aside the said, will, but without success. The bill, in this case, was filed by the beneficiaries under the will, James E. Burton and his wife *11Mary, and tbeir four infant children, against the executors, Jasper H. Yeldell and Joseph L. Talbert, asking the Court for a specific settlement of the property named in the will, upon the same trusts and limitations as expressed therein relative to the proceeds of the sale of the said property. It was urged by the complainants, that the slaves of the testator came to him from the family of his wife — are all of kin to 'each other, being chiefly the offspring of a single family — and are unusually valuable and likely, of excellent character and rapid increase, and would unquestionably yield a larger estate for transmission to the infant remainder-men, than would the fund arising from the proceeds of the sale of said estate though managed with the utmost prudence. It was further urged that the present disposition of the funds is a most unusual one, exceedingly indiscreet and unwise, and seriously hazardous by reason of the great length of time the funds are to remain in the hands of the executors with no other security than their individual liability: that the said executors, admitting that a specific settlement of the property, would be decidedly to the benefit of the infant remainder-men, promised their aid and co-operation in the Court of Equity to effect the said arrangement, provided they should be relieved from taking on themselves any future trusts relative to the estate, and should be paid the same commissions to which they would be entitled in the event of the sale of the entire property as directed by the will — but, without assigning any reasons therefor, the said executors withdrew from the proposition, and refused all assistance to carry out the compromise as agreed upon by the parties.

The executors in their answer, admit that, at the time of making and executing his last will and testament, the testator was quite ill, and had been sick for some weeks of a severe and malignant disease; but they deny that the testator was *12unable to give explicit directions as to tbe testamentary disposition of bis property, and demand strict proof thereof. They deny further that the testator, at any time during his life, expressed himself desirous of making any disposition of his estate different from that stated in his will. They allege that the complainant, James E. Burton, is improvident and unthrifty in his management, and incapable, as they are informed and believe, of governing and managing negroes properly; and that the testator imposed the restrictions upon his property for the purpose of preventing the said -James E. Burton from having any management or control of his estate, and especially of his negro slaves and of his lands. They express their belief that the will is drawn in exact conformity with the wishes of the testator, as made known by him on divers occasions, while in good health and long before his last illness, to some of his most intimate friends.

The defendants deny the statement in the bill as to the intention of the testator, to secure to his daughter, Mary Burton, his family residence and negro slaves for and during the term of her natural life — and as to the fact that the said Mary J. Burton is deprived of a house and home by the provisions of the testator’s will, as they are informed and believe that the said James E. Burton owns, in his own right, a tract of land With a dwelling house thereon. They admit it to be true, that the negro slaves of the testator are nearly all of kin to each other, and that the greater part of them are descendants of one family; that most of these slaves were born on the plantation, and were raised by the testator: that the said slaves are very likely, valuable, and of good character, but deny that the said negro slaves are of rapid increase, since, as they have been informed, the fifteen or sixteen negroes of which the testator died possessed, were the accumulation of some twenty-five or thirty years, and there are but few children now among them.

The defendants further express the belief that the-fund *13arising from tbe sale of said slaves, would afford to tbe said Mary J. Burton and ber children, more ample means of support than would tbe annual income of tbe crops upon tbe plantation ; and they deny that it would be to tbe benefit of tbe *cesíuis que trust*under tbe will, that tbe said property should be settled specifically upon tbe said Mary J. and ber children upon tbe terms indicated in tbe bill, while tbe duties and responsibilities thereby incurred would be much more burdensome than they contemplated at tbe time they qualified as executors of said will, at tbe same time that their compensation would be diminished. They further state, on information, that considerable sickness has, for several years, existed on tbe testator’s plantation, during which several deaths occurred, tbe testator’s wife, two or three of bis children, and tbe testator himself. Tbe defendants submit that as executors and trustees, they have rights which tbe Court ought not to disregard — that by reason of their office as executor, they are entitled to full commissions on tbe whole estate of tbe testator, both real and personal, and that tbe Court will not in equity and good conscience deprive them of tbe compensation to which they are justly entitled, and subject them to burdens and duties which are not required of them as executors of said will, and render their office of executor not only troublesome to them, but expensive. That bad they supposed such an arrangement as that prayed for in tbe bill would have been effected, they would not have qualified — and in case tbe Court makes such a decree as will carry into effect tbe prayer of tbe bill, they pray to be relieved from their office of executor, and desire to have no connection with tbe estate, if tbe complainant, James H. Burton, is to have control of it, on accotmt of bis character and disposition — That tbe said James has already committed a violent assault and battery on one of tbe defendants without any provocation, simply because be made a suggestion to him in reference to the management of tbe estate.

*14After bearing tbe pleadings and evidence, and after argument tbereon, bis Honor ordered and decreed tbat tbe bill stand dismissed.

Tbe complainants appealed, and moved this Court to reverse tbe circuit decree on tbe grounds:

1. Because a specific settlement of tbe property in question is not such a variance from tbe terms of tbe will, as to place tbe matter beyond tbe discretion of tbe Court of Cbancery.

2. Because tbe peculiar terms of tbe trust created by the will, render it altogether necessary and proper, it is respectfully submitted, tbat tbe Court should interpose its authority to protect tbe funds of tbe testator, for tbe benefit of those who are tbe objects of bis bounty, against tbe insecurity in which they have been placed by the inadvertence of tbe testator, occasioned by bis extreme illness at tbe time of making and executing bis last will and testament.

3. Because, from tbe case proved, it would conduce greatly to tbe interest of tbe beneficiaries under tbe will, and particularly to tbe infant remainder-men, tbat tbe property should be settled specifically on Mrs. Burton and her children.

*Moragne, Spann,*for appellants.

Adams, contra.

Tbe opinion of tbe Court was delivered by

DuNKIN, Ch.

Tbe general authority of tbe Court to change tbe character of tbe property of infants and femes covert is not doubted; although tbe too frequent exercise of this power upon applications, necessarily *ex*parte, has been sometimes a subject of animadversion and of regret. Even where a testator, has given specific directions in relation to tbe *15management of tbe property bequeathed by bim, and subsequent events have rendered tbe sóbeme impracticable or manifestly prejudicial, either from change in the condition of the property itself, or of the beneficiaries, the Court has in some instances interfered, although with extreme caution; and generally upon the assumed principle that the Court only does what the testator would have himself done iTthe new condition of things had existed when his will was made. But these are exceptional eases. Eew rights are regarded with so much jealousy as the right of testamentary disposition of one’s own property; none more dearly cherished than the privilege of securing according to a man’s own judgment, the comfort and well being of his offspring. Provided no rule of law be violated, Courts do not interfere with the exercise of this discretion, or, it may seem, caprice, on the part of testators. When juries have sometimes undertaken to set aside a will from their own views of its injustice or inexpediency, the attempt is uniformly controlled and the spirit rebuked by the sober judgment of the Court.

In this case the sole objects of the testator’s bounty as well as solicitude were his daughter (his only remaining child) and her issue. She had been the wife of the plaintiff for nine or ten years. It appeared from the evidence that the testator “ did not regard his son-in-law as a thrifty man,” that he said “ he had paid a good deal of money to get Burton out of debt but could not do it,” that he, sometime before making his will, said, that *“*the portion of the property he intended to leave his daughter, Mrs Burton, should be left so that James Burton could have no control over it,” — that “he wanted his property which was to go to his daughter put in somebody’s keeping, so that Burton could not spend it.” Testator told another witness that “he dreaded James Burton’s father more than himself,” he stated his apprehension that “ they would break James up” — that “ he would leave his property so that James Burton’s father should* have no control over it,” — and *16again that *“*he would leave the property which was to go to his daughter in Jasper Yeldell’s hands.”

On 15th August, 1854, the will of testator was executed, by which he directed, the whole of his property, consisting principally of the place on which he resided, and fifteen or sixteen negroes, to be sold by his executors, upon such terms of credit as they deemed reasonable, and, after payment of his debts, directed, in substance, that his daughter “should receive and enjoy the interest and income” of the surplus for her sole and separate use during her life, and he appoints the defendants executors and trustees to take charge of the legacy for the benefit of his daughter, and see to the execution of his wishes in that behalf. Upon the death of his daughter, he directed the said trustees to make distribution among the lineal descendants of his daughter in the manner therein specified, free and discharged of all further trust.

This bill was an application to enjoin the executors from selling the property, because, in the language of the third ground of appeal, “ it would conduce greatly to the interest of the beneficiaries under the will, and particularly to the infant remaindermen, that the property should be settled specifically on Mrs Burton and her children.” It was also urged as a reason, that the executors and trustees gave no security for the fund. The defendants resisted the application for the several reasons set forth in their answer, among other reasons that they regard the arrangement, made by the testator, not only in accordance with his intentions, long and deliberately entertained, but such as, in the judgment of the defendants, is best calculated to promote the object he had in view, of affording and securing a support to his daughter and her children — they further say that they would never have qualified on the will, or accepted the trust, if they were obliged to hold the property as desired by the plaintiffs, instead of carrying out the scheme of the testator as declared by his will, and, if the prayer of the bill should be granted, they pray to *17be relieved from tbe trust wbicb they bave unadvisedly assumed.

At tbe bearing of tbe cause mncb evidence was offered for tbe purpose of showing that a larger income would be derived, and tbe capital increased, by granting tbe prayer of tbe bill. Several witnesses testified that twenty per cent, per annum might be calculated upon as tbe natural increase of slaves. It may be remarked, in passing, that nothing can be more fallacious or illusory than any such speculative opinions. It would be very unwise to deduce any general conclusion from an isolated instance of remarkable fecundity, or peculiar exemption from disease. Tbe increase in tbe entire slave population of South Carolina from 1840 to 1850 was less than eighteen per cent, for tbe ten years, wbicb would be an average of less than two per cent, per annum. It may be said, *that*increase was less in consequence of emigration. But, during tbe same period, tbe increase of tbe slave population in tbe whole United States was not quite twenty-nine per cent, for tbe decade, or about three per cent, per annum. Tbe inquiry is not, however, whether a more expedient scheme might not bave been adopted by tbe testator, but whether be bad not all tbe lights before him, all tbe means for forming a correct judgment, which are now presented to tbe court. At tbe bearing of tbe cause no change whatever bad taken place either in tbe situation of tbe property or of the beneficiaries, and tbe presiding Chancellor, not deeming himself warranted in revising tbe judgment of tbe testator where bis intention was plain, dismissed tbe application.

Again — It was evidently a material part of tbe testator’s plan to secure competent trustees to carry bis purposes into effect. It is enough for tbe Court that they bad bis confidence. It is not suggested that they are in any respect less entitled to confidence than when tbe appointment was made. They assumed tbe execution of tbe trust in tbe assurance that it was to be discharged in tbe manner prescribed by tbe testator, *18and -they pray to be relieved from tbe trust if the prayer of the bill be granted. It would be difficult, under the circumstances, to decline this request, especially as the plaintiffs oppose no objection. All the precautions of the testator would thus be defeated, and the Court, having adopted a different mode of managing the testator’s property, must seek for new trustees to carry out the scheme.

It may be a very embarrassing case to the plaintiffs, and the Court has not been insensible to the cogent reasons urged by the appellants’ counsel against the general policy of the scheme prescribed by the testator. Perhaps no member of the Court would be disposed to follow his example. But, sitting here, we have no means, if we Had the authority, to inquire into the various motives which may have influenced his determination. — It is the province of the Court to ascertain, and declare the intention of the testator, but neither to make nor unmake his will.

According to the facts disclosed by the pleadings and the evidence, this Court perceives no error in the exercise of the Chancellor’s discretion by dismissing the bill. It is ordered that the decree be affirmed.

JohNstoN, Dargan and "Wardlaw, OC,, concurred.

*Decree affirmed.*